Early morning court filings delayed a hearing Tuesday in which a judge was set to determine whether a Walmart shooting victim’s family violated a gag order in the case.

The El Paso District Attorney’s Office filed a number of documents to prevent the judge from issuing findings on a report filed by the family’s attorney that made a number of startling allegations against DA Yvonne Rosales and her personal attorney, Roger Rodriguez — including that Rodriguez and his wife had created an email criticizing the judge and sent it under the name of the son of a Ciudad Juárez man killed in the Walmart attack. The family also accused Rodriguez of later threatening them.

The latest filing charges the family’s attorney, Justin Underwood, with having “demonstrated clear bias during the development of his report.” The filing alludes to the DA’s previous claims that Underwood is part of a concerted effort to have her removed from office, of which she has charged El Paso Matters CEO Bob Moore with being part. Moore has called that accusation an attempt “to intimidate and suppress a news organization whose coverage she doesn’t like.”

Medrano appointed Underwood to represent Rosa Maria Valdez Garcia, the widow of shooting victim Alexander Gerhard Hoffmann Roth, and their sons Alexander and Thomas, after local media received an Aug. 4 email from Valdez’s personal email address criticizing the judge and a former prosecutor. The email was signed by Alexander Hoffmann Valdez.

The email’s authenticity immediately came into question after Hoffmann’s daughter told Channel 9-KTSM that she did not believe “this was written by my brother, nor any of my family members.”

Valdez and her sons subsequently told Underwood that Rodriguez and his wife Anne had used Valdez’s cell phone to send the email, according to Underwood’s ad litem report. Valdez said she did not know what the email contained or to whom it was being sent.

State District Court Judge Sam Medrano Jr. at a hearing in the Walmart shooting case on Tuesday, Oct. 11. (Bob Moore/El Paso Matters)

The District Attorney’s Office questioned evidence contained in the report, specifically transcripts of conversations the family recorded with Roger Rodriguez and affidavits the family signed supporting their allegations against him.

In his report, Underwood said Rodriguez was working on behalf of the District Attorney’s Office in his meetings with the Hoffmann family. The filings by the District Attorney’s Office on Tuesday did not dispute that allegation.

The DA’s Office presented its own evidence refuting the family’s claim that they had never authorized Juárez-based attorney Jose Morales to represent them, a claim made public in an Aug. 24 email from Morales to the judge.

Morales submitted an affidavit stating that the family “approved me sending a letter to Judge Sam Medrano as their lawyer and rejecting the appointment of Justin Underwood as their lawyer.”

Additionally, the filing includes a letter from Valdez asking Rosales “to please take the legal steps necessary to remove the judge” following the July 1 hearing in which Medrano issued the gag order, noting that the judge “attempted to humiliate you in front of the media.”

In a separate action Tuesday, Rosales asked the 8th Court of Appeals to issue an emergency order striking down the gag order. In the writ of mandamus filing, she claimed that the order violated U.S. and state constitutional protections for free speech and charged Medrano with  having “abused his discretion.”

A mandamus is a rarely used order from an appeals court that compels a judge or other government official to fulfill official duties.

It was after the July 1 hearing that the Hoffmann family first met Roger and Anne Rodriguez, who accompanied Rosales into a conference room to speak to victims and their families about the gag order.

Rosales has justified Roger Rodriguez’s presence that day to the fact that he was allegedly “instrumental” in securing state grants to help cover prosecution costs associated with the case. She testified last month that Rodriguez had “an interest in attending the hearing so that he could report an update to the governor.”

Roger Rodriguez, standing at left, and his wife Anne, right, attend a hearing in the Walmart shooting case on July 1. (Corrie Boudreaux/El Paso Matters)

Rodriguez, who serves as Vinton municipal judge, has not responded to requests for comment about the allegations contained in Underwood’s report.

Rosales has also not responded to a request for comment; however, she told former El Paso Mayor John Cook that Rodriguez has only represented her at a Texas Ethics Commission hearing and in a federal voting rights case that was filed against several DAs.

“Any allegations that he represents me beyond that are false,” she told Cook, according to an Oct. 7 post he wrote in the Facebook group “Truth Matters,” which he started to “allow the truth to come out” about what he calls “the scheme” to remove Rosales from office.

Rosales, Underwood and members of the Hoffmann family were not present at Tuesday’s hearing.

Medrano rescheduled the hearing for Nov. 28 in order for prosecutors to review the recorded conversations between Rodriguez and the family, as the DA’s Office stated in its filing that it “has had insufficient time to examine the recordings to ascertain that they have not been tampered with … .” It was the third delay since August in the hearing.

“I’m sure the forensic department of the FBI has those tapes and has determined whether they have been altered,” defense attorney Joe Spencer told the judge, a reference to Underwood stating in his report that he had turned over this evidence to the federal agency.

Medrano also scheduled a separate hearing for Jan. 25. At that point, the parties may begin to discuss the scheduling of the state trial.

Days earlier, federal prosecutors will notify the federal judge of whether they will be seeking death in the federal case, in which the alleged gunman faces more than 90 charges, including hate crimes. The federal trial has been set to begin in January 2024.

The DA’s office has already announced its intention to seek the death penalty.

Molly Smith has been a reporter for the El Paso Times and The (McAllen) Monitor. She’s covered education, criminal justice and local government. A Seattle native, she’s lived in Texas since 2014.