Preview
FILED
DALLAS COUNTY
12/8/2015 4:41:52 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-15-07174
JOHN DOE I, INDIVIDUALLY AND IN THE DISTRICT COURT
AS NEXT FRIEND OF
JOHN DOE II, A MINOR
v.
DALLAS COUNTY, TEXAS
THE ANDERSON PRIVATE SCHOOL,
WILLIAM C. ANDERSON, INDIVIDUALLY,
LEVONNA C. ANDERSON, INDIVIDUALLY,
ALEXANDER A. ANDERSON, INDIVIDUALLY,
RIPLEY ENTERTAINMENT, INC., AND
JIM PATTISON U.S.A., INC. 44TH JUDICIAL DISTRICT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES, STEPHEN ALCORN, ASSISTANT CITY ATTORNEY, and an
employee of the City of Grand Prairie, representing the City of Grand Prairie, Texas, and
Detective BRAD MAKOVY and files this Motion to Quash Subpoena and for Protective Order,
and would respectfnlly show the Court the following:
Detective MAKOVY is an employee of the City of Grand Prairie, Texas, and a police
officer. He is currently assigned to investigate crimes against children, including sexual assaults,
and has knowledge of the child and the events who are the subject of this proceeding.
II.
Beginning on or about November 29, 2015, Detective Makovy has been served with
subpoenas directing him to produce records and to appear for purposes of having his deposition
taken and to give testimony in this suit at the offices of attorneys representing the Defendants.
Detective Makovy, as part of his duties with the Grand Prairie Police Department, did
investigate certain activities that involve some of the parties involved, some of such activities
which could be crimes against the above referenced minor child At this point in time, the
investigation has been suspended, and there are no criminal charges pending.
IV.
According to Subchapter C of Chapter 261 of the Texas Family Code:
SUBCHAPTER C. CONFIDENTIALITY AND PRIVILEGED COMMUNICATION
Sec. 261.201. CONFIDENTIALITY AND DISCLOSURE OF
INFORMATION. Ca) Except asprovided by Section 261. 203, the following information is
confzdential, is not subject topublic release under Chapter 552, Government Code, and may be
disclosed only for purposes consistent with this code and applicable federal or state law or
under rules adopted by an investigating agency:
(1) a report of alleged or suspected abuse or neglect made under this chapter
and the identity of theperson making the report; and
(2) except as otherwise provided in this section, the files, reports, records,
communications, audiotapes, videotapes, and workingpapers used or developed in an
investigation under this chapter or inproviding services as a result of an investigation.
(b) A court may order the disclosure of information that is confzdential under this
section if.
CI) a motion has beenfzled with the court requesting the release of the
information;
(2) a notice of hearing has been served on the investigating agency and all other
z'nterestedparties; and
(3) after hearing and an in camera review of the requested information, the
court determines that the disclosure of the requested information is:
CA) essential to the administration of justice; and
(B) not likely to endanger the life or safezy of:
(i) a child who is the subject of the report of alleged or suspected
abuse or neglect;
(ii) aperson who makes a report of alleged or suspected abuse
or neglect; or
(iiO any other person who participates in an investigation of
reported abuse or neglect or who provides carefor the child.
Detective Makovy has not been notified that there is in fact any court order that allows the
disclosure of the requested information or that would override the confidentiality of the records
in his possession responsive to the subpoena, and there has been no notification of a hearing in
accordance with the provisions of the above referenced statute.
VI.
Until such a hearing is held and such order issued by a judge with jurisdiction over the matter,
the subpoenas served upon Detective Makovy should be quashed in the following regards:
1. He should not be forced to reveal the information found in any investigation
concerning any crimes against the child involved, which the Family Code specifically declares to
be confidential, and not subject to disclosure.
2. Such relief shall remain in effect as long as there is no order after a properly conducted
hearing that such information may be released.
3. There has been no review of such information by a judge or any other judicial figure,
qualified to make a determination as to the disclosure of such information, and almost all of the
parties involved has some privacy concerns. The requested documents should at least be
examined in camera to determine if they should be released to anyone and/or used in any judicial
proceeding.
WHEREFORE, PHEMISES CONSIDERED, Brad Makovy, The City of Grand Prairie Police
Department, and the City of Grand Prairie, Texas, respectfully request that the subpoenas served
upon Officer Makovy be quashed, that they have relief that they do not have to reveal
--
information that has been declared to be confidential, or appear for deposition, that they be
awarded costs and attorneys' fees, and that they have all such other and further relief to which
they may be entitled.
Respectfully submitted,
DONALD R. POSTELL
Texas State Bar No. 16168300
CITY ATTORNEY
STEPHEN R. ALCORN
Texas State Bar No. 00978300
salcom@gptx.org_
ASSISTANT CITY ATTORNEY
XAS
P.O. BOX 534045
GRAND PRAIRIE, TX 75053
(214) 237-8028
FAX 237'-8030
ATTORNEYS FOR
THE CITY OF GRAND PRAIRIE, TEXAS and
BRAD MAKOVY
"- -
CERTIFICATE OF SERVICE
This is to certify that on the `> day of December, 2015, a true and correct copy of
the foregoing Motion to Quash and for Protective Order has been served upon the following
Requesting Attorneys, and upon the attorneys for the Plaintiffs, by certi6ed mail, personal
delivery, or email, at the addresses set out below:
S. Todd Parks
Walters, Balido, and Crain, LLP
10440 N. Central Expressway, 15lh Floor
Dallas, TX 75231
214-749-4805
Todd.Parks@wbclawfirm.com_
Attorneys for Defendants Ripley and Paulson
Robert Hammer
Hammer and Associates
300 Legacy Downs Drive
Fort Worth, TX 76126
817-332-8266
Robert@hammerlaw.com_
Attorney for Defendants Anderson
William H. Kincaid
Kincaid Legal
P.O. Box 457
Sanger, TX 76266
940-458-4888
Whk4888@yahoo.com_
Attorney for Defendants Anderson
John D. Sloan, Jr.
Sloan Marney, LLP
3838 Oak Lawn Avenue, Suite 200
Dallas, TX 75219
214-253-0101
jsloan@sloanmatney.com
Attorney for Plaintiff
CERTIFICATE OF ATTEMPTED CONFERENCE
This is to certify that prior to filing these Motions, calls were placed to the attorneys representing
the various parties. There was a telephone conference with an employee of the attorneys for
Ripley and Paulson, and there was an understanding that we would probably need a hearing on
the matter, due to the sensitive nature of the subject matter. A message was left on telephone for
one of the attorneys for the Anderson parties, and the other number has apparently changed. The
voicemail box of the Plaintiff s attorney was apparently full, and there could not be a message
left.
CITY OF GRAND PRAIRIE, TEXAS
Preview
FILED DALLAS COUNTY 12/8/2015 4:41:52 PM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-15-07174 JOHN DOE I, INDIVIDUALLY AND IN THE DISTRICT COURT AS NEXT FRIEND OF JOHN DOE II, A MINOR v. DALLAS COUNTY, TEXAS THE ANDERSON PRIVATE SCHOOL, WILLIAM C. ANDERSON, INDIVIDUALLY, LEVONNA C. ANDERSON, INDIVIDUALLY, ALEXANDER A. ANDERSON, INDIVIDUALLY, RIPLEY ENTERTAINMENT, INC., AND JIM PATTISON U.S.A., INC. 44TH JUDICIAL DISTRICT TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES, STEPHEN ALCORN, ASSISTANT CITY ATTORNEY, and an employee of the City of Grand Prairie, representing the City of Grand Prairie, Texas, and Detective BRAD MAKOVY and files this Motion to Quash Subpoena and for Protective Order, and would respectfnlly show the Court the following: Detective MAKOVY is an employee of the City of Grand Prairie, Texas, and a police officer. He is currently assigned to investigate crimes against children, including sexual assaults, and has knowledge of the child and the events who are the subject of this proceeding. II. Beginning on or about November 29, 2015, Detective Makovy has been served with subpoenas directing him to produce records and to appear for purposes of having his deposition taken and to give testimony in this suit at the offices of attorneys representing the Defendants. Detective Makovy, as part of his duties with the Grand Prairie Police Department, did investigate certain activities that involve some of the parties involved, some of such activities which could be crimes against the above referenced minor child At this point in time, the investigation has been suspended, and there are no criminal charges pending. IV. According to Subchapter C of Chapter 261 of the Texas Family Code: SUBCHAPTER C. CONFIDENTIALITY AND PRIVILEGED COMMUNICATION Sec. 261.201. CONFIDENTIALITY AND DISCLOSURE OF INFORMATION. Ca) Except asprovided by Section 261. 203, the following information is confzdential, is not subject topublic release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency: (1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of theperson making the report; and (2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and workingpapers used or developed in an investigation under this chapter or inproviding services as a result of an investigation. (b) A court may order the disclosure of information that is confzdential under this section if. CI) a motion has beenfzled with the court requesting the release of the information; (2) a notice of hearing has been served on the investigating agency and all other z'nterestedparties; and (3) after hearing and an in camera review of the requested information, the court determines that the disclosure of the requested information is: CA) essential to the administration of justice; and (B) not likely to endanger the life or safezy of: (i) a child who is the subject of the report of alleged or suspected abuse or neglect; (ii) aperson who makes a report of alleged or suspected abuse or neglect; or (iiO any other person who participates in an investigation of reported abuse or neglect or who provides carefor the child. Detective Makovy has not been notified that there is in fact any court order that allows the disclosure of the requested information or that would override the confidentiality of the records in his possession responsive to the subpoena, and there has been no notification of a hearing in accordance with the provisions of the above referenced statute. VI. Until such a hearing is held and such order issued by a judge with jurisdiction over the matter, the subpoenas served upon Detective Makovy should be quashed in the following regards: 1. He should not be forced to reveal the information found in any investigation concerning any crimes against the child involved, which the Family Code specifically declares to be confidential, and not subject to disclosure. 2. Such relief shall remain in effect as long as there is no order after a properly conducted hearing that such information may be released. 3. There has been no review of such information by a judge or any other judicial figure, qualified to make a determination as to the disclosure of such information, and almost all of the parties involved has some privacy concerns. The requested documents should at least be examined in camera to determine if they should be released to anyone and/or used in any judicial proceeding. WHEREFORE, PHEMISES CONSIDERED, Brad Makovy, The City of Grand Prairie Police Department, and the City of Grand Prairie, Texas, respectfully request that the subpoenas served upon Officer Makovy be quashed, that they have relief that they do not have to reveal -- information that has been declared to be confidential, or appear for deposition, that they be awarded costs and attorneys' fees, and that they have all such other and further relief to which they may be entitled. Respectfully submitted, DONALD R. POSTELL Texas State Bar No. 16168300 CITY ATTORNEY STEPHEN R. ALCORN Texas State Bar No. 00978300 salcom@gptx.org_ ASSISTANT CITY ATTORNEY XAS P.O. BOX 534045 GRAND PRAIRIE, TX 75053 (214) 237-8028 FAX 237'-8030 ATTORNEYS FOR THE CITY OF GRAND PRAIRIE, TEXAS and BRAD MAKOVY "- - CERTIFICATE OF SERVICE This is to certify that on the `> day of December, 2015, a true and correct copy of the foregoing Motion to Quash and for Protective Order has been served upon the following Requesting Attorneys, and upon the attorneys for the Plaintiffs, by certi6ed mail, personal delivery, or email, at the addresses set out below: S. Todd Parks Walters, Balido, and Crain, LLP 10440 N. Central Expressway, 15lh Floor Dallas, TX 75231 214-749-4805 Todd.Parks@wbclawfirm.com_ Attorneys for Defendants Ripley and Paulson Robert Hammer Hammer and Associates 300 Legacy Downs Drive Fort Worth, TX 76126 817-332-8266 Robert@hammerlaw.com_ Attorney for Defendants Anderson William H. Kincaid Kincaid Legal P.O. Box 457 Sanger, TX 76266 940-458-4888 Whk4888@yahoo.com_ Attorney for Defendants Anderson John D. Sloan, Jr. Sloan Marney, LLP 3838 Oak Lawn Avenue, Suite 200 Dallas, TX 75219 214-253-0101 jsloan@sloanmatney.com Attorney for Plaintiff CERTIFICATE OF ATTEMPTED CONFERENCE This is to certify that prior to filing these Motions, calls were placed to the attorneys representing the various parties. There was a telephone conference with an employee of the attorneys for Ripley and Paulson, and there was an understanding that we would probably need a hearing on the matter, due to the sensitive nature of the subject matter. A message was left on telephone for one of the attorneys for the Anderson parties, and the other number has apparently changed. The voicemail box of the Plaintiff s attorney was apparently full, and there could not be a message left. CITY OF GRAND PRAIRIE, TEXAS