An intermediate appeals court ruled Wednesday that McLennan County District Attorney Abel Reyna should not be disqualified from prosecuting the case of a biker arrested after the 2015 shootout at Twin Peaks.

The opinions from Waco’s 10th Court of Appeals maintain Reyna’s status over the case. However, the court’s ruling was a bit unusual in the sense that it featured opinions from all three judges, with two concurring opinions.

Justice Al Scoggins denied biker Matthew Clendennen’s petition for mandamus in a single sentence, while Chief Justice Tom Gray wrote a six-page concurring opinion and Justice Rex Davis wrote a three-page concurring opinion.

Dallas attorney Clint Broden, who represents Clendennen, appealed an October order by 54th State District Judge Matt Johnson denying a motion to disqualify Reyna, who went to the scene and advised Waco police commanders about how to proceed after the deadly May 17, 2015, melee at Twin Peaks.

Broden asked the court to issue a writ of mandamus, which would have ordered Johnson to disqualify Reyna and appoint an “independent and unbiased” prosecutor to take over the case.

Broden said Wednesday evening he will confer with Clendennen, a former member of the Scimitars group, before deciding if he will appeal the decision to the Texas Court of Criminal Appeals.

“I was very pleased that at least Judge Davis was troubled by Abel Reyna’s actions and that Judge Gray’s decision was not based on the merits of the petition, but rather procedural issues, and we are invited to raise the issues again at a later time,” Broden said. “I want to study the opinions a little more carefully to make a decision on where we are going to go from here. At least one member of the court had questions about Reyna’s actions that day, so it may be that the Court of Criminal Appeals may need to decide this.”

A phone call to Reyna seeking comment about the rulings went unreturned Wednesday evening.

Broden argued that Reyna “crossed the line” by ordering the mass arrests of 177 bikers on identical charges on May 17, 2015. He argued that Reyna usurped the judgment of Waco’s top police commanders with 100 years worth of collective law enforcement experience, who, Broden said, had decided before Reyna arrived that most of the bikers were mere witnesses.

During oral arguments before the three-member court in March, the justices asked Broden if he had any legal precedent to determine exactly where the line is for prosecutors, who routinely give advice to police agencies, assist them with drafting search or arrest warrants and other legal matters.

Broden paraphrased the famous line from former U.S. Supreme Court Justice Potter Stewart, who in 1964 while reviewing an obscenity case, said, “I know it when I see it.”

“This is pornography,” Broden said. “This is so far over the line that it’s ridiculous. That might explain why there is no case law on it.”

In his concurring opinion, Davis said Reyna came close to abusing his authority but did not “cross the line.”

‘Very close’ to abuse

“The events and circumstances surrounding what has come to be commonly referred to as the ‘Twin Peaks shootout’ are unique in McLennan County,” Davis wrote. “That aside, the decision-making on that day by the district attorney, though no doubt well intended, came very close to being an abuse of his professional discretion.

“Particularly, his not deferring to law enforcement on the issues of arrest and reporting can certainly be called into question. However, even though I have significant concerns about his actions and about how close he was to abusing his discretion, I believe that he did not cross that line.”

Davis determined Johnson did not abuse his discretion by denying the initial motion in October.

Broden also alleged in his motion to disqualify that Reyna should be removed from the case because he is being sued by more than 100 bikers in federal civil rights lawsuits and has a financial stake in ensuring they are convicted.

He also alleged that Reyna should be disqualified because he will be a witness during Clendennen’s trial.

Gray, in his concurring opinion, said that while Broden “has presented some evidence of a disputed fact,” he has not exhausted other legal remedies available to him.

“Mandamus is an extraordinary remedy,” Gray wrote. “It is to be utilized only when other legal remedies are inadequate. Thus, if there is another legal remedy available to Clendennen, a petition for writ of mandamus should be denied.”

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