| IN THE 34th JUDICIAL DISTRICT COURT OF EL PASO COUNTY, TEXAS THE STATE OF TEXAS § EX REL. OMAR CARMONA, § Petitioner, § § v. § § Cause No. 2022DCV2472 YVONNE ROSALES, § IN HER OFFICIAL CAPACITY AS § DISTRICT ATTORNEY OF THE 34th § JUDICIAL DISTRICT, § Respondent § ONDENT’S SPECIAL E UEST FOR SE NAL ANSWER Tt [ON TO REMOVE DISTRICT ATTORNEY OF THE 34™ SUDICIAL DISTRICT YVONNE ROSALES AND JURY DEMAND ‘TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, YVONNE ROSALES (hereafter “Respondent” or “DA Rosales”), in her Official Capacity as District Attorney of the 34% Judicial District, by and through her undersigned attorney, and files this her Special Exceptions, Request for Security, Original Answer to Petition to Remove District Attorney of the 34" Judicial District and Jury Demand, and in support thereof, shows the following: L SPECIAL EXCEPTIONS 1 THE STATE OF TEXAS, EX REL. OMAR CARMONA (hereinafter “Petitioner”) alleges “incompetency” as his first cause of action. Petitioner has failed to plead specific facts supporting his allegation that “her (DA Rosales's) conduct demonstrates gross ignorance of official duties or gross carelessness in the discharge of those duties” as required by Tex. Govt. Code 87.015 (c). These allegations are improper as Respondent cannot adequately be placed on notice of or defend the allegations contained in Petitioner's Petition.2 On his second cause of action, Petitioner alleges “official misconduct.” Petitioner again fails to plead specific facts to support his allegations that “her conduct demonstrates each element of official misconduct”, “her conduct exhibits an intentional and knowing violation of he law by a public servant” and “allowing her to continue as district attorney ‘puts the public at risk and demeans the office.” These allegations are conclusory and devoid of any factual support. Respondent cannot adequately be placed on notice of the allegations attributed to this cause of action. 2) Respondent requests this Court order, Complainant to amend the Complaint to plead specific facts supporting his allegations. 4. Should Complainant fail to plead specific facts, Respondent requests the Court to strike these causes of action from his petition. 5. Respondent specially excepts that the Original Petition requests immediate suspension of Respondent pursuant to Local Government Code §87.017. Because the Original Petition fails to allege grounds for removal that are consistent with Texas Constitution Article V, {§24, any proceeding for temporary suspension is unconstitutional as applied in this cause. 6. Respondent specially excepts to the petition for failure to state the amount of damages sought, as required by rule 47(c) of the Texas Rules of Civil Procedure. IL REQUEST FOR SECURITY 1 Order under Section 87.016(c), Respondent requests the Court to order Petitioner to post security for costs in an amount no less than $160,000.00. . Respondent requests this Honorable Court to set this matter for hearing.I. GENERAL DENIAL 9. Subject to, and without waiving the foregoing Special Exceptions, as is authorized by Rule 92 of the Texas Rules of Civil Procedure, Respondent generally denies each and every allegation contained in Petitioner’s Petition, and respectfully requests that Petitioner be required to prove same by a preponderance of the evidence as is required by the Constitution and laws of the State of Texas. Iv. BACKGROUND 10. The 34" Judicial District is a multi-county district with a population of more than 872,000. In 2020, Respondent was duly elected to the position of 34" Judicial District Attorney in a runoff election where she prevailed by approximately 1,200 votes. The previous District Attorney held the postion for almost 30 years. Respondent's opponent inthe election was employed by the prior DA, and he was viewed by many in the community to be the heir-apparent to the office. Respondent is the political outsider and a woman who wasn’t supposed to win. Her election victory was a stark and unwelcome reminder for many in the community that the position of District Attorney is elected by the people. It is not appointed by a cabal of power brokers and politicians. To say that Respondent has faced resistance since she was sworn into office is an understatement. Change has been hard for many in the community to accept. 11. Petitioner's claims represent the latest salvo in the ongoing war against democracy that is raging in our country. The idea of losing gracefully has abandoned our collective conscience, Where in our hearts humble acceptance once prevailed, vengeance now resides. A petition to ask a judge to effectively erase the results of a democratically held election and remove an office holder is a drastic measure that should be) reserved only for the most exreme circumstances. Those circumstances are not remotely presented here.Ours is a system of checks and balances and was devised by men who feared too much concentration of power and dispersed it at some cost, at times, 0 efficiency in government. No division of our democracy, and no individual, be he judge or otherwise, has any monopoly on the knowledge of the route society must take 10 reach a better and more just way of life. When public officials manifestly violate their duty, courts must have the courage to remove them or negate their actions. But where in a discretionary decision, such as here, the most that can be said is that perhaps poor judgment was used; for the courts to fly in and substitute their Judgment for that of elected officials would be to undermine the very foundation of ‘our political system. For over the long haul, we hew to the belief that the wisdom and instincts of the electorate is preferable to any other system of government devised by man. Harper v. Taylor, 490 8.W.2d 227, 230 (Tex. Civ. App. 1972). 12, After a narrowly decided election, it is undeniable that there will be many in the community who may disagree with and dislike certain decisions which are later made by a victorious candidate upon assuming office. In a democratic society the proper forum for addressing those concerns is in the next election. Petitioner has wholly failed to assert any credible factual or legal basis upon which his petition for removal should be granted. v. SPECIFIC DENIALS 13. Without waiving the foregoing Special Exceptions and General Denial, Respondent specifically denies the following allegations in Petitioner’s Petition to Remove District Attorney of the 34" Judicial District Yvonne Rosales and Jury Demand: a. Respondent specifically denies Petitioner’s allegations as legal grounds contained in paragraph “a”, that: “In Rosales's first year as District Attomey, she filed approximately 60% fewer felony and misdemeanor assault cases against alleged abusers, despite an overall rise in family violence arrests within the city of El Paso.” “In 2021, El Pasoans made approximately 26,000 calls to police regarding domestic violence. Also if 2021, El Paso Police Officers made more than 2,000 family violence arrests. Inexplicably, Rosales only filed 374 misdemeanor charges for assault family violence causing bodily injury and secured only 311 grand jury indictments for family violence felonies in 2021. Further, Rosales disposed of 2,098cases in 2021; this is compared to the prior District Attorney disposing of 24,503 cases in 2020.” Petitioner's sensationalist statements, even if accepted as true, fail to take into account that Respondent as the District Attorney has broad discretion in determining which cases to pursue. It is well established law in the United States that the decision to pursue formal criminal charges by the State is entirely within the discretion of the prosecutor. “[I]f the system is to work effectively, prosecutors must be accorded the widest discretion{.J” Bordenkircher v. Hayes, 434 U.S. 357, 372, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). “Prosecutors have broad discretion in choosing which cases to prosecute.” State v. Malone Serv. Co., 829 S.W.2d 763, 769 (Tex. 1992). Itis the duty of a District Attorney to see that justice is done, not, to rubber stamp every act of a police officer or Grand Jury, both of whom are legally independent of the District Attorney. See Tex. Code Crim. Proc. Art. 2.01. Nothing in Petitioner's claims even remotely suggests a violation of law, ethics, or duty by the District Attomey. Respondents duly authorized and necessary discretion shall not be used as a basis for the relief sought in Petitioner’s petition. Respondent specifically denies all of Petitioner's allegations contained in paragraph “b.” The case referenced in said paragraph is on appeal before the 8" Court of Appeals. Moreover, “The State has discretion to seek the death penalty and this prosecutorial discretion is not unconstitutional.” Hankins v. State, citing Cantu v, State, 842 S.W.2d 667, 692 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 926, 113 S. Ct. 3046, 125 L. Ed. 2d 731 (1993); Barefield v. State, 784 S.W.2d 38, 46 (Tex. Crim. App. 1989), cert. denied, 497 U.S. 1011, 110 S. Ct. 3256, 111 L. Ed. 2d 766 (1990). Discretion exercised by a prosecutor is not limited to the initial charging decision. “A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct [Thhe initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.” United States v. Godwin, 457 U.S. 368, 369, 102 S.Ct. 2485, 734 L.Ed.2d 74 (1982). Respondent denies that the decision to elevate the charge and seek the death penalty was done for any reason other than Respondent specifically denies all of (Petitioner’s allegations contained in paragraph “c.” The case referenced in said paragraph is currently an ongoing case. The case was originally indicted by the El Paso Grand Jury on September 12, 2019, approximately sixteen months prior to Respondent being sworn in as District Attomey. The case is, without question, the most significant, high profile, and complex ever to be prosecuted in the jurisdiction. To further complicate matters, the United States Department of Justice has asserted its own prosecutorial authority over the case. Petitioner’s allegations are baseless because Respondent has wide discretion in prosecuting her case without outside influence. “An obvious corollary to a district attomey’s duty to prosecute criminal cases is the utilization of his own discretion in the preparation of those cases for trial.” In re State of Texas 39014, Specific Denials, Respondent asserts the following affirmative defenses to petiti 15. S.W.3d 493, 443 (Tex.App — El Paso 2012, orig. proceeding), citing Meshell v. ‘State, 739 8.W.2d 246, 254 (Tex.Crim.App. 1987). Nothing in Petitioner’s claims even remotely suggest a violation of law, ethics, or duty by the District Attorney. Respondent as the District Attorney stands ready to seek and obtain justice in said case on behalf of the victims and the State of Texas. Respondent specifically denies Petitioner's allegations contained in paragraph ‘“d”, that “on or about November 30" 2021, the Texas Ethics Commission released an opinion, stating that Rosales had used governmental resources for political Purposes.” Section 571.095 of the Texas Government Code mandates the maintenance of opinions by the Texas Ethics Commission. The law requires that, “The commission shall number and categorize each advisory opinion issued and annually shall compile a summary of its opinions in a single reference document.” ‘The opinion cited by Petitioner was not issued, it is not included in the cumulative digest of the Texas Ethics Commission, and it does not exist. | VL AFFIRMATIVE DEFENSES In the alternative and without waiving its Special Exceptions, General Denial, and Respondent pleads as an affirmative defense that all relief sought in the Original Petition is barred because the Original Petition fails to allege any ground for removal or suspension under Texas Constitution Article V, §24. Respondent pleads as an affirmative defense that all relief requested in the Original Petition is barred because Local Government Code §87.013(a)(3) is unconstitutional on its face because it exceeds the authority of Texas Constitution Article V, §24. Respondent pleads as an affirmative defense to the request for temporary suspension that Local Government Code §87.017 is unconstitutional to the extent that it purports, to permit suspension without a jury finding of truth of a constitutionally authorized ground for removal as set forth in Texas Constitution Article V, §24. Respondent pleads as an affirmative defense to the request for temporary suspension that Local Government Code §87.017 is unconstitutional under Texas Constitution Art. 1, §2 to the extent that it purports to permit the court to order temporary suspension of anelected official without due process to protect the rights of the voters ina democracy. Vil. RIGHTTO AMENDIJURY DEMAND Respondent reserves the right to amend this Answer and demands trial by jury.WHEREFORE, PREMISES CONSIDERED, Respondent prays that upon final hearing hereof Petitioner take nothing by its suit and that Respondent recover costs and such other and further relief either at law or in equity, both special and general, to which Respondent may show herself justly entitled. Respectfully submitted, LAW OFFICE OF LUIS YANEZ 1015 Magoffin Avenue EI Paso, Texas 79901 Tel: (915) 503-2424 Fax: (915) 500-4055 is Yanez LUIS YANEZ State Bar No. 24072432 and Wilson Diebel, PLLC 2810.N. Hwy 77 Suite 190 Waxshachie, TX 75165 (972) 848-9311 /s/ Patrick Wilson PATRICK M. WILSON State|Bar No. 90001783 and ~Ms/ David M. Chavez DAVID M. CHAVEZ State Bar No. 24090030 1015 Magoffin Avenue EI Paso, Texas 79901 Phone: (915) 503-2424 Facsimile: (915) 500-4055 Email: dchavez@yaneziawoffice.com Attorneys for Respondent, Yvonne Rosales | 7 |CERTIFICATE OF SERVICE hereby certify that on the 6th day of October 2022, a copy of the foregoing was filed electronically, which caused all parties of record involved in this matter to be served by electronic ‘means, as more fully reflected in the Electronic Notice of Filing: By: _/s/ Luis Yanez LUIS YANEZ State Bar No. 24072432VERIFICATION STATE OF TEXAS ) ) COUNTY OF EL PASO) Before me the undersigned authority, on this day personally appeared YVONNE ROSALES, who being duly sworn on his oath deposes and states that YVONNE ROSALES, in her Official Capacity as District Attomey of the 34" Judicial District, is named as the Respondent; that she has read the foregoing Special Exceptions, Request for Security, Original Answer to Petition to Remove District Attorney of the 34" Judicial District and Jury Demand; that every statement contained in said Answer is within her personal knowledge true and correct. ae ROSALES SIGNED under oath before me this the gt aay of | hoe 2022. JENNIFER SOBLESKI Notat ici and for the lary Public, State of Texes State of Tekas ee. BIR 8 comm tren ovar02e My eo expires PQ age Notary 1 130471274