As Magdoline Elhindi has argued, a Harris County judge’s order has put her between a rock and a hard place: If she refuses to comply with the discovery order, she could face contempt proceedings. And if she complies with the discovery order, she will run afoul of both federal law and a letter from the FBI instructing her not to disseminate a video she believes to be child pornography.
On Tuesday, the Texas Supreme Court issued its second stay of the trial court’s order. The first came in December. Then, in January, the court narrowly denied Elhindi’s petition for writ of mandamus asking the court to allow her to first turn the video over to federal authorities who can determine whether it constitutes child pornography.
Tuesday’s stay came amid consideration of Elhindi’s motion for rehearing, which remained pending Friday.
Elhindi filed suit against attorney Hamilton Rucker in Harris County district court in May, alleging he violated the Texas Relationship Privacy Act by distributing an intimate video of her without her knowledge or consent.
Elhindi met Rucker in July 2020 and they began an intimate relationship, according to court documents. He handled her divorce case, which was finalized in July 2021. She alleges that in May 2021, Rucker surreptitiously filmed her engaging in sexual activity and later sent that video to a third party, which is the basis of her lawsuit.
During discovery, Rucker requested Elhindi hand over all videos of him that she had in her possession. She objected to production of one video apparently filed in June 2021, alleging that when Rucker sent it to her, he said it depicted him having sex with a 14-year-old girl in Egypt.
Disseminating the video that depicted child pornography, Elhindi argued, would be unlawful. Rucker alleges the video actually depicts him having sex with his now wife, whom he married in June 2022.
Harris County District Judge Donna Roth ordered she give the video to Rucker.
Enter the FBI.
Elhindi received a letter from the federal agency requesting she provide them the video and warning her not to give it to anyone else until its agents made a determination as to whether the video does depict child pornography.
“FBI Houston understands this is only an allegation at this time, but FBI Houston cautions the further distribution of the video as it contents may contain [child sexual abuse material] which is illegal to possess and/or distribute,” the letter reads. “FBI Houston certainly respects the courts current order, but the sooner we can review and examine the video the sooner a determination can be made. FBI Houston cautions against the further distribution or sharing of the video until further investigative steps are taken to determine if the video contains CSAM.”
But Judge Roth’s order required Elhindi first provide Rucker the video, by Oct. 31, before she provided it to the FBI. Judge Roth told counsel for Elhindi at a hearing that’s quoted in her petition to the high court that the attorney was “making an assumption” that the video depicted child pornography.
“If the FBI has a problem with it, they can come on in, okay?” the pleadings allege she told the parties. “I am ordering you to provide a copy of the video to opposing counsel, and any and all communications regarding that video … Doesn’t go to the FBI until he gets a copy and you respond or reply to the court that you are satisfied that you have a complete copy of what’s going to be turned over to the FBI. The FBI can come in and file a motion with me any time they want.”
Elhindi appealed the order to the Fourteenth Court of Appeals, which in December denied her petition for writ of mandamus. The same month, she appealed to the Texas Supreme Court.
The state’s high court issued an administrative stay of Judge Roth’s orders on Dec. 27, then on Jan. 12 it lifted the stay and denied Elhindi’s petition for writ of mandamus.
But that decision drew a fiery eight-page dissent, authored by Justice Evan Young and joined by Justices Debra Lehrmann, John Devine and Jimmy Blacklock.
Justice Young wrote that he would have used the case as an opportunity to establish an “important legal principle: A Texas court may not compel a party who fears having received child pornography to further distribute that content until law enforcement first examines it and confirms that it is not child pornography.”
“But my concern reaches deeper than Elhindi’s personal liability or lack thereof: I cannot see why any Texas court should order someone who has purportedly received child pornography to do anything other than provide it to law enforcement,” Justice Young wrote. “An allegation of child sexual abuse is no minor irritant but is among the most deplorable of crimes. Recording such a crime is an additional crime. No Texas court should order purported child pornography to be handled other than through law enforcement, regardless of whether doing otherwise would subject parties like Elhindi to federal criminal prosecution. An order that instead requires transferring alleged child pornography to private parties before giving it to law enforcement would be reckless and needless.”
Elhindi filed a motion for rehearing and a second motion for temporary relief on Jan. 29.
On Feb. 20, the Texas Supreme Court granted her second motion for temporary relief and issued a stay. Elhindi’s motion for rehearing remained pending Friday.
Amicus Attention
The case has received significant amicus attention. A group of 16 members of the Texas House of Representatives filed a brief in support of Elhindi on Feb. 6, arguing in part the case presents the court with an opportunity to “further strengthen Texas law against the spread of child pornography.” The lawmakers said they strongly agree with “Justice Young’s righteous proclamation.”
“This court is presented with a question of undoubted importance to our state,” the brief reads. “The undersigned Texas Legislators implore this court to recognize the importance of combatting the spread of child pornography by accepting review of this case to remedy the trial court’s egregious error in ordering the production of the subject material.”
A group of 20 district attorneys representing counties across the state — including Tarrant and Collin counties — have also weighed in. In their Jan. 30 brief, the lawyers told the court it was wrong to allow the trial court’s order to stand.
“As prosecutors, we are also concerned with the Supreme Court permitting an order to stand in which a trial court requires a member of the bar to commit the Texas crime of promotion of child pornography, an offense which the trial court judge would also, arguably, be a party to committing,” the brief reads.
The case also seems to have drawn the interest of uninvolved citizens. More than 100 people signed letters sent to the court asking it to reconsider and grant rehearing.
“It is critically important that the Texas Courts not interfere with law enforcement’s interpretation of violations of the law concerning child sex trafficking and the possession of child porn,” reads the form letter.
Elhindi is represented by Kenton J. Hutcherson of Hutcherson Law in Dallas.
Rucker is represented by Peyton Z. Peebles III of Shellist Peebles McAlister in Houston.
The amici legislators are represented by Christopher A. Klement of Fee, Smith & Sharp.
The amici district attorneys represent themselves.
The case number is 23-1040.