in Re Richard Stephen Calkins

ACCEPTED

01-15-01009-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

12/1/2015 9:41:50 AM

01-15-01009-CV CHRISTOPHER PRINE

CLERK

NO. - 15 - - CV

IN THE COURT OF APPEALS FOR THE DISTRICT OF TEXAS

FILED IN

IN RE RICHARD STEPHEN CALKINS st

1 COURT OF APPEALS

HOUSTON, TX

Relator DEC 1, 2015

CHRISTOPHER A. PRINE,

CLERK

Original Proceeding from Cause No. 441,165

as continuation of Cause No. 378,993

In Probate Court at Law No. 2

Harris County, Texas

PETITION FOR WRIT OF MANDAMUS

Susan C. Norman

Texas Bar No. 15083020

Law Offices of Susan C. Norman

P . O. Box 52518

Houston, Texas 77052

713-882-2066 (Phone)

713-229-8328 (Facsimile)

suenorman@suenormanlaw.com

COUNSEL FOR RELATOR

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

1. Relator: Richard Stephen Calkins,

Trial and Appellate Counsel:

Susan C. Norman

Law Offices of Susan C. Norman

P. O. Box 52518

Houston, Texas 77052

713-882-2066 (Phone)

713-229-8328 (Facsimile)

suenorman@suenormanlaw.com

2. Respondents:

The Honorable Christine Butts

Probate Court No. 4, Suite ***

201 Caroline, 7th Floor

Houston, TX 77002

3. Real Party in Interest:

Carolyn James

Trial Counsel:

G. Wesley Urquhart

P. O. Box 272928

Houston, Texas 77277

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii - iv

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . v - vi

APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi - vii

STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 -2

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . 3

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 -10

A. This case is a continuation of the 2008 guardianship case from which

Hon. Butts voluntarily recused herself in 2011, a case in which Hon.

Mike Wood was disqualified in 2009 from presiding over these

parties... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 - 6

B. No other judge was presiding over the [failed]

guardianship case when Mary Olive Calkins died and

probate of her Last Will and Testament was filed. . . . . . . . . . . . . . . . 6

C. Probate of Mary Olive Calkins’ Last Will and Testament

fell into a court in which the judge had

voluntarily recused herself in 2011 . . . . . . . . . . . . . . . . . . . . . . . . . 6 - 8

D. Tex. Gov’t. Code 25.00255, et seq. changed Sept. 1, 2015,

leading to void order from Hon. Butts, which was used to

issue orders by Hon. Herman, and Hon. Burwell,

and potentially, Hon. Wood. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 - 10

D-1. Hon. Butts waited until the statute changed

on Sept. 1, 2015, to issue a

void “amended order of recusal.”.” . . . . . . . . . . . . . . . . . . . . . . . 8

D-2. Hon. Herman used Hon. Butts’ void

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“amended order of recusal” to issue orders

after the statute changed which could not have

been issued before it changed.. . . . . . . . . . . . . . . . . . . . . . . . . . . 9

D-3. Hon. Herman issued a void order assigning Hon. Burwell,

ONLY to hear a motion to recuse

Hon. Wood, not a disqualification motion.. . . . . . . . . . . . . . . . . 9

D-4. On Nov. 20,2015, Hon. Burwell issued another

void order denying Hon. Wood’s disqualification

with no assignment, no notice, and no hearing.. . . . . . . . . . . 10

D-5. On December 1, 2015, there is a hearing set before disqualified

judge, Hon. Mike Wood, which will allow him to resume

jurisdiction over parties and cases over which he was

disqualified in 2009 from presiding... . . . . . . . . . . . . . . . . . . . 10

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 11 - 13

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 - 26

A. Standard of review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 - 14

B. Hon. Butts’ Sept, 2, 2015, void order

violates due process.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

C. Hon. Butts failed to comply with the

rules governing recusal... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 - 16

D. Even Hon. Butts’ plenary power

expired by August 29, 2015.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

E. Hon. Butts’ Sept. 2, 2015, void order cannot authorize subsequent

void orders by Hon. Herman and Hon. Burwell that

permit a disqualified judge to

resume jurisdiction of cases and parties... . . . . . . . . . . . . . . . . . . 17 - 18

F. Hon. Herman’s orders based on Hon. Butts’

void order, are void, as well, as are Hon. Burwell’s

orders void when based on Hon. Herman’s orders... . . . . . . . . 18 - 19

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G. All the void orders violate Fourteenth Amendment

due process protection to Richard Stephen Calkins

and Mary Olive Calkins and/or her estate.. . . . . . . . . . . . . . . . . 19 - 20

H. Once recused or disqualified,

a judge may not re-enter the case.. . . . . . . . . . . . . . . . . . . . . . . 20 - 22

I. The byzantine, cascading series of void orders

started with Hon. Butts’ Sept. 2, 2015, order... . . . . . . . . . . . . . 23 - 24

J. Using the void orders, disqualified judge,

Hon. Wood, is resuming jurisdiction of the cases.. . . . . . . . . . . 24 - 25

K. One of the fundamental goals of the American

legal system is equal justice to all under the law.. . . . . . . . . . . . . . . . 25

L. Mandamus is the only adequate remedy for Richard Stephen Calkins

when challenging a void order... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

1. Mandamus is the proper remedy for challenging

a judge’s resumption of jurisdiction

after disqualification and /or recusal... . . . . . . . . . . . . . . . . . . 26

2. Mr. Calkins will suffer immediate and irreparable harm.. . . . 26

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 - 27

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . 28

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

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INDEX OF AUTHORITIES

Cases Page

In re Alpert, 276 S.W.3d 592, 599-600

(Tex. App.–Houston[1st Dist.] 2008, r’hg denied... . . . . . . . . . . . . . 16

Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985).. . . . . . . . . . . . . . . 18

Ex Parte Eastland, 811 S.W.2d 571 (Tex. 1991). . . . . . . . . . . . . . . . . . . . . . 19

In re Hecht, 213 S.W.3d 547, 565, 2006 Tex. Lexis 1340. . . . . . . . . . . . . . 27

McGrew v. Heard, 779 S.W.2d 455, 457

(Tex. App.--Houston [1st Dist.] 1989, orig. proceeding).. . . . . . . 13, 26

Moody v. Simmons, 858 F.2d 137, 142 (3d Cir. 1988).. . . . . . . . . . . . . . . . 21

In re Murchison, 349 U.S. 133, 136 (1955). . . . . . . . . . . . . . . . . . . . . . . 14, 20

In re Nitla S.A. de C.V., 92 S.W.3d 419, 422

(Tex. 2002) (orig. proceeding).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

In re Susan C. Norman, 191 S.W.3d 858, 861

(Tex. App.–Houston[14th Dist.) 2006 Tex. App. Lexis 3292. . . . . . 16

In re Prudential Ins. Co. of Am.,

148 S.W.3d 124, 135-136 (Tex. 2004).. . . . . . . . . . . . . . . . . . . . . 13, 14

In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605,

3 Tex. Sup. Ct. J. 1005 (Tex. 2000) (per curiam).. . . . . . . . . . . . 13, 26

State Bar v. Heard, 603 S.W.2d 829 (Tex. 1980)

1980 Tex. Lexis 363.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

In re Union Pac. Res. Co., 969 S.W.2d 427, 428,

41 Tex. Sup. Ct. J. 591 (Tex. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429, 431,

29 Tex. Sup. Ct. J. 202 (Tex. 1986). . . . . . . . . . . . . . . . . . . . . . . . 13, 26

Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992); 1992 Lexis 14... . . . 14

-v-

Statutes Page

Fourteenth Amendment to United States Constitution.. . . . . . . . . . . . . 19,20

TEX. CONST. art. V, § 11.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Tex. Gov’t. Code 25.00255, et seq.. . . . . . . . . . . . . . . . 8, 11, 12, 15, 17, 22, 23

Tex. R. Civ. Proc. 306a.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Treatises Page

1997 B.Y.U. L. Rev. 423, 450,

citing In re Murchison, 349 U.S. 133, 136 (1955). . . . . . . . . . . . . . . 14

Donald Nugent, Judicial Bias, 42 Clev. St. L. Rev. 1, 17, 1994... . . . . . . . 25

Appendices

Appendix 1 Feb. 02, 2009, First Amended Motion Disqualify Judge

Wood on Constitutional Grounds

Appendix 2 March 05, 2009, Rep Record Motion to Disqualify Mike

Wood on Constitutional Grounds

Appendix 3 March 05, 2009, Order Granting Motion to Disqualify

Mike Wood on Constitutional Grounds

Appendix 4 Orders of Voluntary Recusal & Disqualification of Harris

County Probate Judges

Appendix 5 08-10-11 - Excerpt Rep Rec 378993 - James Listed Hon.

Sebesta Name First

Appendix 6 03-01-2013 - Hon Weiman Order Dismiss 2012-51725

Due James Lack Standing

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Appendix 7 Dec. 03, 2012, Hon. Sebesta Voluntary Recusal from

Calkins Cases

Appendix 8 07-29-15 - James Motion Recuse Hon. Butts & Motion

Consolidate wi Guardianship Cases.

Appendix 8.1 July 30, 2015 Judge Butts' Recusal at James Request

Appendix 9 11-02-15 - Harris County Clerk Docket 441165 as of 11-00

A.M.

Appendix 10 Hon. Butts Sept. 2, 2015 Amended Order of Recusal

Appendix 11 Sept. 8, 2015 - Judge Herman Minute Order 15-065 Order

Clerk to Transfer Case to Probate Ct. 2

Appendix 12 Calkins by Libby Motion Recuse and-or Disqualify Hon.

Wood

Appendix 13 Sept. 15, 2015 - Judge Wood Refer Motion to Recuse

and-or Disqualify

Appendix 14 Sept. 28, 2015 - Judge Herman Assign Judge Burwell

Hear ONLY Motion to Recuse not Disqualify

Appendix 15 Oct. 16, 2015 - Judge Burwell Order Deny Motion to

Recuse and Disqualify

Appendix 16 Signed Order on Motion Re-Urging Constitutional

Disqualification of Judge Mike Wood

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STATEMENT OF THE CASE

Nature of the case:

This probate case is a continuation of [failed, never completed]

guardianship litigation [Mary Olive Calkins as proposed ward] begun by

Carolyn James in 2008, involving Mary Olive Calkins, Carolyn James,

Richard Stephen Calkins, and Michael Easton, in which the Honorable

Mike Wood was constitutionally disqualified in 2009, and which now

continues as probate of Mary Olive Calkins’ Last Will and Testament.

Richard Stephen Calkins asserts that the 2009 order granting of the motion

to disqualify the Hon. Mike Wood on constitutional grounds precludes

Hon. Mike Wood from sitting on any case in which Mary Olive Calkins or

her estate, Carolyn James, and Richard Stephen Calkins are parties.

Respondent:

Respondent is Honorable Christine Butts.

Respondent’ s actions:

Hon. Butts voluntarily recused herself in 2011 from the Mary Olive

Calkins guardianship involving all the above parties, supra, without

ever having conducted any hearing in which testimony and evidence

were presented. On July 15, 2015, Hon. Butts held a hearing in which

she made statements about Mary Olive Calkins’ prior capacity and

concluded she did not need to re-recuse herself from the probate

matter.

After Carolyn James filed a motion to recuse Hon. Butts and a motion

to consolidate with the guardianship case on July 29, 2015, Hon.

Butts voluntarily recused herself by order issued July 30, 2015, and

did not refer the case pursuant to Tex. Gov’t. Code §25.00255, et seq.

Hon. Butts took no further action to refer the case pursuant to Tex.

Gov’t. Code §25.00255, et seq for thirty-three (33) days until after she

issued her “amended order of recusal” on September 2, 2015, after

the Tex. Gov’t. Code §25.00255, et seq., statute changed on

September 1, 2015, then referred the case to Hon. Herman to effect

transfer which he did on September 8, 2015, transferring it to Probate

Court No. 2 [Mike Wood presiding].

-1-

Relief sought:

Respondent Hon. Christine Butts:

Relator asks this Court to issue a writ of mandamus directing Hon.

Christine Butts to:

1. vacate her September 2, 2015, “Amended Order of Recusal;”

2. As required on July 30, 2015, after her order of [re-] recusal,

notify the clerk who serves the statutory probate courts of

Harris County to immediately notify the presiding judge of the

administrative judicial district and request that the presiding

judge of the administrative judicial district assign a judge

pursuant to Section 25.002201 as required on July 30, 2015.

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STATEMENT OF JURISDICTION

This Court has jurisdiction under Texas Government Code Section

22.221(b) to issue a writ of mandamus against a judge of a district or

county court in its district. Because this is an original proceeding

challenging the erroneous actions of a statutory probate judge in Harris

County in issuing a void order which led to a series of additional orders

based on it, this Court has jurisdiction to issue a writ of mandamus under

well-established Texas precedent.

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STATEMENT OF ISSUES PRESENTED

1. Whether after Hon. Butts entered her order of voluntary [re-

]recusal on July 30, 2015 [following her voluntary recusal in

2011], she was required to follow Tex. Gov’t. Code

§ 25.00255(g)((1)(B), subject to subsection (l) in effect on July

30, 2015;

2.. Whether after Hon. Butts entered her order of voluntary [re-

]recusal on July 30, 2015, she was precluded from making any

further orders in the case, including a sua sponte “amended

order of recusal” thirty-three (33) days later, after the Tex.

Gov’t. Code §25.00255, et seq., statute changed, and referring

the case to Hon. Herman to transfer;

3. Whether Hon. Butts’ void order of Sept. 2, 2015, could confer

any legitimacy on the two orders based on that order entered by

Hon. Herman and by the two orders entered by Hon. Burwell,

thus permitting the cases to be transferred back to Probate

Court No. 2, disqualified judge Hon. Mike Wood presiding;

4. Whether a disqualified judge, Hon. Mike Wood, can later

resume jurisdiction of the parties and cases;

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STATEMENT OF FACTS

A. This case is a continuation of the 2008 guardianship

case from which Hon. Butts voluntarily recused

herself in 2011, a case in which Hon. Mike Wood was

disqualified in 2009 from presiding over these parties.

In 2008 Carolyn James filed a [now-failed and never completed]

guardianship case [Cause No. 378,993] over Mary Olive Calkins which fell

into Probate Court No. 2, Hon. Mike Wood presiding. Richard Stephen

Calkins, individually and as agent-in-fact for Mary Olive Calkins, opposed

the guardianship. Michael Easton was made a party to the guardianship by

the Honorable Mike Wood when he sought sanctions against both Mr.

Easton—although at the time motion for sanctions was filed, Mr. Easton

had not appeared as a party—and Susan Norman, counsel for Richard

Stephen Calkins

Thereafter, in 2009, a motion to disqualify the Honorable Mike Wood

on constitutional grounds was filed. App. 1. The Honorable Olen

Underwood assigned himself to hear the First Amended Motion to

Disqualify the Honorable Mike Wood on Constitutional Grounds, holding

a hearing on March 5, 2009, App. 2, and after finding that Carolyn James

joined in the motion, the motion was granted App. 3.

Thereafter the Honorable Mike Wood did not further preside over the

case, and the other statutory probate court judges in Harris County

-5-

voluntarily recused themselves (Hon. Christine Butts, Hon. William

McCullough, and Hon. Rory Olsen, Hon. Loyd Wright). App 4, orders of

recusal.

B. No other judge was presiding over the [failed]

guardianship case when Mary Olive Calkins died and

probate of her Last Will and Testament was filed.

Subsequently, after James’ request and the agreement of all parties

the Hon. Olen Underwood assigned the Honorable Patrick Sebesta to the

guardianship case, which had been re-assigned to Probate Court No. 4 in

2011. App 5, RR Cause No. 378,993. After Ms. James sued the Honorable

Olen Underwood and the Honorable Patrick Sebesta in September, 2012 in

district court for “not doing their job,” Ms. James’ case was dismissed due

to her lack of standing to sue and the judicial immunity of both judicial

officers. App. 6. See, James v. Underwood, et al, 438 S.W.3d 704

(Tex.App.–Houston [1st Dist.] 2014, r’hg denied). Subsequently, the Hon.

Patrick Sebesta voluntarily recused himself from all Calkins cases on

December 3, 2012, App. 7, and there was no judge subsequently assigned to

the guardianship case.

C. Probate of Mary Olive Calkins Last Will and

Testament fell into a court in which the judge had

voluntarily recused herself in 2011

Mary Olive Calkins was a proposed ward who died July 8, 2015, with

no guardian appointed. The probate of Mary Olive’s Last Will and

-6-

Testament is a continuation of the litigation involving both Richard

Stephen Calkins and Carolyn James, children of Mary Olive Calkins. Local

Rules mandate that a new application to admit will to probate be filed in

same court as the guardianship cases.

After the competing applications to probate Mary Olive’s Last Will

and Testament were filed, on July 29, 2015, Ms. James filed Motion to

Recuse the Honorable Christine Butts and Motion to Consolidate With the

Guardianship Cases, App. 8 the judge of Probate Court No. 4, the

Honorable Christine Butts, [re-]recused herself on motion by Carolyn

James, issuing her order of recusal on July 30, 2015. App. 8.1.

Pursuant to the local rules, the probate case was required to be

consolidated with the still-pending, failed guardianship case.

Local Rules of Harris County Probate Courts

2.2 Case Numbering - New Matters. All new estate

administrations, guardianships, trust matters (including

testamentary trusts when the underlying estate has been

closed) that are filed in the Probate Courts of Harris

County shall be assigned to a court in accordance with

Section 25.1034 of the Government Code. Each case shall

be assigned a docket number sequentially. All matters

relating or appertaining to an estate or guardianship that

has not been closed as provided in the Probate Code,

including proceedings upon trusts created by a decedent's

will, shall remain in such court subject to an order of

transfer as with any case, and shall retain the original

docket number with an appropriate sub-file number.

Each subsequent matter filed involving the same decedent or

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proposed ward shall be filed in the original file, under the same

docket number and in the same court as the original filing. . . .

Those matters that are principally concerned with the

administration of the estate are "core matters" and should be

filed under the main cause number.

2.5.1 Probate of wills, issuance of letters testamentary,

administration and guardianship;

2.5.3 Contest to will, heirship, administration (before and after

the grant of letters).

Between July 30, 2015, and August 31, 2015, the Clerk’s Record App.

9, P 5 - 6 demonstrates an absence of Hon. Butts’ request to the probate

clerk to follow the statute in effect on July 30, 2015, that the probate clerk

take the actions mandated by Tex. Gov’t. Code § 25.00255(l) to:

. . . immediately notify the presiding judge of the

administrative judicial district [on July 30, 2015, the Hon. Olen

Underwood] and request that the presiding judge of the

administrative judicial district assign a judge under Section

25.002201.

D. Tex. Gov’t. Code 25.00255, et seq. changed Sept. 1, 2015,

leading to void order from Hon. Butts, which was used to

issue orders by Hon. Herman, and Hon. Burwell, and

potentially, Hon. Wood

D-1. Hon. Butts waited until the statute changed on Sept. 1,

2015, to issue a void “amended order of recusal.”

On September 2, 201t, thirty-three (33) days after her July 30, 2015,

voluntary [re-]recusal order, and after Tex. Gov’t. Code § 25.00255

changed on September 1, 2015, Hon. Butts issued an “Amended Order of

Recusal,” App. 10, referring her order of recusal to the Hon. Guy Herman.

-8-

D-2. Hon. Herman used Hon. Butts’ void “amended order

of recusal” to issue orders after the statute changed

which could not have been issued before it changed.

On September 8, 2015, the Hon. Guy Herman ordered the Harris

County Clerk to transfer the probate case to Probate Court No. 2

[disqualified jurist, Hon. Mike Wood presiding]. App. 11.

On September 15, 2015, [Joseph Libby, now-former] counsel for Mr.

Calkins filed Motion for Recusal and/or Disqualification of Judge Mike

Wood Pursuant to Sec. 25.00255 of the Texas Government Code. App. 12.

On September 15, 2015, Hon. Wood referred the Motion for Recusal

and/or Disqualification of Judge Mike Wood Pursuant to Sec. 25.00255 of

the Texas Government Code to Judge Herman. App. 13.

D-3. Hon. Herman issued a void order assigning Hon.

Burwell, ONLY to hear a motion to recuse Hon. Wood,

not a disqualification motion.

On September 28, 2015, Hon. Herman issued a void order of

assignment of Hon. Gladys Burwell to hear only a motion to recuse

Hon. Wood, not disqualification. App. 14.

On October 16, 2015, Hon. Burwell denied motion to recuse and

disqualify by her void written order. App. 15.

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D-4. On Nov. 20,2015, Hon. Burwell issued another void

order denying disqualification with no assignment, no

notice, and no hearing.

On November 2, 2015, Calkins through current counsel filed Motion

Re-Urging Constitutional Disqualification of Judge Mike Wood, Based On

the Prior, March 5, 2009, Disqualification of Judge Mike Wood In Case

Involving Mary Olive Calkins, Carolyn James, and Richard Stephen

Calkins, In Which Hon. Olen Underwood Found Carolyn James Joined in

the Motion for Disqualification. (“Motion Re-Urging Constitutional

Disqualification”) App. 12.

With no new [void] assignment to “review” a matter of

disqualification of Hon. Wood 9even under the first void assignment on

Sept. 28, 2015,) the Hon. Gladys Burwell “reviewed” the Motion Re-Urging

Constitutional Disqualification, without notice and without holding a

hearing, issued another void order denying the it on November 20, 2015.

App. 16

D-5. On December 1, 2015, there is a hearing set

before disqualified judge, Hon. Mike Wood, which

will allow him to resume jurisdiction over parties and

cases over which he was disqualified in 2009 from

presiding.

A hearing by Ms. James to appoint a temporary administrator is set

in Probate Court No. 2, Mike Wood presiding, for December 1, 2015.

-10-

SUMMARY OF THE ARGUMENT

Parties are entitled to due process in all aspects of a trial, and the

most basic consideration is a fair trial before an impartial judge.

Mandamus is appropriate when a trial court enters a void order and

sets up a cascading series of void orders based on it which appear to be

designed to permit a disqualified judge, Hon. Mike Wood, to resume

jurisdiction of a case or over parties over whom he formerly presided.

Once a judge is disqualified or recused, that judicial officer cannot

later take action in the case or on a continuation of the case involving the

same parties.

After the March 5, 2009, hearing in which the Hon. Olen Underwood

found that Ms. James joined in the motion, he granted the motion to

disqualify the Hon. Mike Wood on constitutional grounds.

Because the Hon. Mike Wood was constitutionally disqualified in

2009 from the guardianship case with these same parties, and the probate

case continues with the same parties, the provisions of the 2009 Tex. Gov’t.

Code § 25.00255, et seq., are still applicable to this case, and these parties.

As of March, 2011, the remaining three (3) statutory probate judges,

including the Hon. Christine Butts, had voluntarily recused themselves

from the guardianship case. As a result, all four (4) statutory probate

judges in Harris County stand recused or disqualified for the continuation

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of the continuation of the guardianship litigation as the probate of the last

will and testament of the decedent who was the proposed ward.

Once Hon. Butts [re-]recused herself on July 30, 2015, her mandated

course of action was under the then-current Tex. Gov’t. Code § 25.00255, et

seq. Hon. Butts could take no further action in the case other than request

the clerk serving the statutory probate courts to request the presiding judge

of the administrative judicial district to assign a judge under Section

25.002201 to preside over the case.

Hon. Butts’ “Amended Order of Recusal” entered thirty-three (33)

days after her [re-]recusal order of July 30, 2015, was void, and did not

authorize further action by anyone.

Hon. Herman could not use her void “Amended Order of Recusal” of

September 2, 2015, to take action he was precluded from taking before the

September 1, 2015, Tex. Gov’t. Code § 25.00255 statute changed.

Hon. Burwell’s assignment is void and her orders are void.

Hon. Mike Wood still stands disqualified in the case.

The Tex. Gov’t. Code § 25.00255, et seq., which was effective on July

30, 2015, controls this case and the the presiding judge of the

administrative judicial district must assign a judge under Section

25.002201 to preside over the case.

-12-

Mandamus is proper because Richard Stephen Calkins has no

adequate remedy by appeal to contest the void orders entered by Hon.

Butts, and subsequently by Hon. Herman and Hon. Burwell, and

prospectively, by Hon. Wood. Richard Stephen Calkins will suffer

immediate and palpable harm if the disqualified judge, Hon. Wood, is

permitted to resume jurisdiction over the cases and parties.

ARGUMENT

A. Standard of review.

Because Hon. Butts’ order of September 2, 2015, is void, mandamus

will issue to correct a void order of a trial court. 1 Further, the Texas

Supreme Court has held that relator need not show that he lacks an

adequate appellate remedy if an order challenged by writ of mandamus is

void. 2

Mandamus is available to correct a trial court’s clear abuse of

discretion when there is no other adequate remedy available by appeal. 2

When a trial court fails to apply the law correctly or fails to apply the law to

1

Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429, 431, 29 Tex. Sup.

Ct. J. 202 (Tex. 1986); McGrew v. Heard, 779 S.W.2d 455, 457 (Tex.

App.--Houston [1st Dist.] 1989, orig. proceeding).

2

In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605, 43 Tex. Sup. Ct. J.

1005 (Tex. 2000) (per curiam).

2

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-136 (Tex. 2004).

-13-

the facts, it abuses its discretion.3 A trial court abuses its discretion if it acts

in an arbitrary or unreasonable manner, without reference to any guiding

rules or principles. 4 Mandamus is also available when a trial court either

(1) violated a duty imposed by law or (2) clearly abused its discretion. 5

B. Hon. Butts’ Sept, 2, 2015, void order violates due

process.

One of the most fundamental tenants of due process is that every

6

litigant is entitled to a fair trial before an unbiased decision maker.

C. Hon. Butts failed to comply with the rules governing

recusal.

Although she had already voluntarily recused herself in 2011, when

requested to do so again by Carolyn James the Honorable Christine Butts

re-recused herself on July 30, 2015, after hearing in which she resumed

jurisdiction over the cases and parties.

Once Hon. Butts entered her voluntary recusal—for the second

time—she could take no further action in the case and her next actions were

governed by § 25.00255(g)((1)(B) — subject to subsection (l). Hon. Butts

3

Id. at 135.

4

In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig.

proceeding).

5

Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992); 1992 Lexis 14.

6

1997 B.Y.U. L. Rev. 423, 450, citing In re Murchison, 349 U.S. 133, 136

(1955).

-14-

was required to first adhere to Tex. Gov’t Code § 25.00255(g)((1)(B)(1-2):

(g) A judge who recuses himself or herself:

(1) shall enter an order of recusal and:

(B) subject to Subsection (l), if the judge serves a

statutory probate court located in a county with more

than one statutory probate court, request that the clerk

who serves the statutory probate courts in that county

randomly reassign the case to a judge of one of the other

statutory probate courts located in the county; and

(2) may not take other action in the case except for good cause

stated in the order in which the action is taken.

Then, Tex. Gov’t Code § 25.00255 subsection (l) took effect because all

statutory probate judges in Harris County were either recused or

disqualified, App. 4, supra:

(l) If a clerk of a statutory probate court is unable to reassign a

case as requested under Subsection (g)(1)(B) or (i-3)(2) because

the other statutory probate court judges in the county have

been recused or disqualified or are otherwise unavailable to

hear the case, the clerk shall immediately notify the presiding

judge of the administrative judicial district and request that the

presiding judge of the administrative judicial district assign a

judge under Section 25.002201 to hear the case.

The Hon. Christine Butts did not follow the mandates of Tex. Gov’t

Code § 25.00255, et. seq., after her July 30, 2015, re-recusal at any time

prior to August 31, 2015, the last day the 2009 version of Tex. Gov’t Code

§ 25.00255, et. seq., was still in effect. The clerks’ record, App. 9, P 5-6,

also contains no order from Hon. Butts sending her voluntary recusal order

to the presiding judge of the administrative judicial district as she was

required to do.

-15-

Since 2008, the procedure a recused judge was mandated to follow

was made clear in the Alpert 7 mandamus, and on July 30, 2015, the

procedure was still valid:

We hold that the authority to reassign cases after a party has

moved for recusal vests with Judge Underwood as the regional

administrative presiding judge, and not Judge Herman, as the

presiding judge of the statutory probate courts. TEX. R. CIV. P.

18a. Accordingly, the minute orders are void, and we direct

Judge Herman to vacate them.

We hold that Texas Rule of Civil Procedure 18a vests the

appropriate regional presiding administrative judge, not the

[*600] presiding administrative judge for the statutory probate

courts, with the duty to reassign probate [**19] cases once a

motion to recuse has been granted. Accordingly, the orders in question are

void, and we direct the presiding administrative judge for the probate

courts to vacate them. Alpert @ 599-600

Coincidently, one day after Tex. Gov’t Code § 25.00255, et. seq.,

changed, some thirty-three (33) days after her order of recusal, instead of

following the statute, Hon. Butts issued a new, void order of amended

recusal and forwarded it to Hon. Guy Herman. Because Hon. Butts failed

to comply with the rules governing motions for recusal, all her subsequent

action, including her order are void. 8

7

In re Alpert, 276 S.W.3d 592, 599-600 (Tex. App.–Houston[1st Dist.]

2008, rh’g denied.

8

In re Susan C. Norman, 191 S.W.3d 858, 861 (Tex. App.–Houston[14th

Dist.) 2006 Tex. App. Lexis 3292.

-16-

D. Even Hon. Butts’ plenary power expired by August 29, 2015.

Even, arguendo, if the mandate of Tex. Gov’t. Code § 25.00255, et.

seq., were not controlling—which it is—under the most generous extension

of time for a court to act on its orders, Hon. Butts’ plenary power only could

only extend for 30 days after the order was entered, making her

amendment to her order also void under the Rules after August 29, 2015.

Tex. R. Civ. Proc. 306a.

E. Hon. Butts’ Sept. 2, 2015, void order cannot authorize

subsequent void orders by Hon. Herman and Hon. Burwell

that permit a disqualified judge to resume jurisdiction of

cases and parties.

Because the order entered by Hon. Butts on September 2, 2015, is

void due to her failure on July 30, 2015, to comply with the rules governing

motions for recusal, ie., Tex. Gov’t. Code § 25.00255, et. seq., her failure

renders void all actions and orders based on that order, including the two

Minute Orders entered by Hon. Herman and the two orders entered by

Hon. Burwell. When an order is void, it simply means the order in question

never existed and is not capable of being revived, waived, ratified, amended

or fixed. An order is void when it is apparent that the court rendering the

order had no jurisdiction of the parties, no jurisdiction of the subject

matter, no jurisdiction to enter the judgment, or no capacity to act as a

-17-

court. 9. The order is not merely invalid or voidable; it is void from its

inception. See Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987). A void

order is entirely null within itself; it is not susceptible to ratification or

confirmation, and its nullity cannot be waived. See In re Guardianship of

B.A.G., 794 S.W.2d 510 (Tex. App.-Corpus Christi[13th Dist.] 1990) (void

judgment) (citing Easterline v. Bean, 49 S.W.2d 427, 429 (1932); American

Universal Ins. Co. v. D.B.&B., Inc., 725 S.W.2d 764, 766 (Tex. App.-[13th

Dist.] 1987, writ ref'd n.r.e.).

F. Hon. Herman’s orders based on Hon. Butts’ void order, are

void, as well, as are Hon. Burwell’s orders void when based

on Hon. Herman’s orders.

The initial effect of the void order of Hon. Butts is to give authority to

Hon. Herman to transfer the case to Probate Court No. 2, to Hon. Mike

Wood, a disqualified judge, presiding.

When Hon. Herman’s Sept. 8, 2015, order of transfer to Probate

Court No. 2 was challenged on Sept. 15, 2015, Hon. Herman used the void

order of Hon. Butts to enter yet another void order assigning Hon. Burwell

to hear the July 15, 2015, motion to recuse / disqualify. Assuming

arguendo, there could possibly have been any validity to the order

assigning Hon. Burwell, the void order of assignment only assigned her to

9

Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985)

-18-

hear a motion to recuse, not disqualify. If Hon. Burwell’s order of Oct.

16, 2015, were not void already, it would be void because she was not

assigned to consider disqualification. 10

Finally, after Richard Stephen Calkins re-urged Hon. Wood to accept

his 2009 disqualification on Nov. 2, filing the Motion Re-Urging

Constitutional Disqualification, on November 20, 2015, with no notice of

hearing and opportunity to respond, Hon. Burwell entered yet another void

order denying the motion, apparently based on her prior void assignment

by Hon. Herman.

G. All the void orders violate Fourteenth Amendment due

process protection to Richard Stephen Calkins and Mary

Olive Calkins and/or her estate.

The final outcome of the cascade of void orders beginning with Hon.

Butts’ Sept. 2, 2015, void order is to place Richard Stephen Calkins, Mary

Olive Calkins and/or her estate, and Carolyn James in Probate Court No. 2,

with a constitutionally disqualified judge, Hon. Mike Wood, presiding over

the cases from which he was constitutionally disqualified in 2009. TEX.

CONST. art. V, § 11. Once it is determined that a judge is constitutionally

disqualified from sitting in a case, the judge is without authority to act and

10

Ex Parte Eastland, 811 S.W.2d 571 (Tex. 1991)

-19-

the judge's rulings are void. 11

More than 50 years ago the Supreme Court held that”

[U]nder the Due Process Clause no judge "can be a judge in his own

case [or be] permitted to try cases where he has an interest in the

outcome." 12

Due process as protected by the Fourteenth Amendment to the United

States Constitution and the Texas Constitution forbids a disqualified judge

from re-entering the case.

The Supreme Court has stated . . .that a fundamental

requirement of due process is that a litigant is entitled to "[a]

fair trial in a fair tribunal." Murchison, 349 U.S. at 136. In

order to fulfill this constitutional requirement, the Court has

held that it violates the Fourteenth Amendment "to subject [a

person's] liberty or property to the judgment of a court the

judge of which has a direct, personal, substantial, pecuniary

interest in reaching a conclusion against him in his case."

Tumey v. Ohio, 273 U.S. 510, 523 (1927). Likewise, due process

mandates that no judge "can be a judge in his own case [or be]

permitted to try cases where he has an interest in the outcome."

Murchison, 349 U.S. at 136. Although the interest cannot be

defined with precision, the test is whether the situation "would

offer a possible temptation to the average man as a judge... not

to hold the balance nice, clear and true." Id. (quoting Tumey,

273 U.S. at 532). 1997 B.Y.U. L. Rev. 423, at 438.

H. Once recused or disqualified, a judge may not re-enter the

case.

Once a judge is recused as Hon. Butts is—a lower standard than the

11

In re Union Pac. Res. Co., 969 S.W.2d 427, 428, 41 Tex. Sup. Ct. J. 591

(Tex. 1998).

12

In re Murchison, 349 U.S. 133, 136 (1955).

-20-

constitutional disqualification of Hon. Wood here—she is always recused

from a case. 13

Whether the order says “recused,” or “disqualified,” is not

determinative; the motion heard by the Hon. Underwood only requested

that Hon. Mike Wood be disqualified on constitutional grounds, and the

prayer for relief only requests disqualification on constitutional grounds;

the word, “recuse” does not appear in the prayer for relief. The courts look

to the substance of a plea for relief to determine the nature of the pleading,

not merely at the form of title given to it; the prayer for relief in the motion

14

requesting disqualification, controls.

The ministerial act exception, ie., non-discretionary actions a court

can take that do not involve exercising judicial discretion or actions that

affect the rights of a party, allow a court to act in the case. The non-

discretionary, ministerial act required to be taken by Hon. Butts was to

follow the mandate Tex. Gov. Code § 25.00255(g)((1)(B)—subject to

subsection (l)—that Judge Butts request that the clerk who serves the

statutory probate courts in Harris County randomly reassign the case to a

judge of one of the other statutory probate courts located in the county.

13

Moody v. Simmons, 858 F.2d 137, 142 (3d Cir. 1988) ("Once a judge has

disqualified himself, he or she may enter no further orders in the case.").

14

State Bar v. Heard, 603 S.W.2d 829 (Tex. 1980) 1980 Tex. Lexis 363.

-21-

Because, however, all judges in Harris County were either voluntarily

recused or disqualified, the clerk who serves the statutory probate courts in

Harris County was then mandated to follow the statute, Subsection (l) of

Tex. Gov. Code § 25.00255:

Tex. Gov. Code § 25.00255(l) If a clerk of a statutory probate

court is unable to reassign a case as requested under Subsection

(g)(1)(B) or (i-3)(2) because the other statutory probate court

judges in the county have been recused or disqualified or are

otherwise unavailable to hear the case, the clerk shall

immediately notify the presiding judge of the administrative

judicial district and request that the presiding judge of the

administrative judicial district assign a judge under Section

25.002201.

Instead, the clerk’s record, App. 9, P 5-6, supra, demonstrates no

compliance by Hon. Butts with the statute on July 30, 2015, or at any time

up through August 31, 2015, the last day before the statute, Tex. Gov. Code

§ 25.00255, et seq., changed on September 1, 2015. Hon. Butts had no

discretion to refuse to make the request supra, to the clerk as set out above.

By her void order thirty-three (33) days after her order re-recusing herself,

Hon. Butts put into motion a series of void orders that now place these

parties back in Probate Court No. 2, with disqulalified Hon. Mike Wood

presiding over the same parties from whom he was disqualified from

presiding over on March 5, 2009.

-22-

I. The byzantine, cascading series of void orders started with

Hon. Butts’ Sept. 2, 2015, order.

What the clerk’s record does demonstrate is that:

1. coincidently, one day after the Tex. Gov. Code § 25.00255

changed on September 1, 2015, Hon. Butts issued her void

order of September 2, 2015, referring the case to Hon. Herman

instead of having followed the statute at any time prior to

September 1, 2015;

2. using Hon. Butts’ void order, Hon. Herman issued a void order

on September 8, 2015, Minute Order 2015-065, which ordered

the probate clerk of Harris County to transfer the probate

matter to Probate Court No. 2 [disqualified judge Hon. Mike

Wood presiding]. (The Minute Order was not made a part of

the records of the case until October 19, 2015, forty-one (41)

days after action based on that Minute Order was taken.)

As a result of the void Minute Order 2015-065, Richard Stephen

Calkins [now-former] counsel filed a Motion to Recuse and/or Disqualify

Judge Mike Wood, App. 12, supra, based on the 2009 disqualification of

Judge Mike Wood. When that motion was presented to him, Hon. Wood

referred it to Hon. Herman, allowing the following void orders to be

entered:

3. again using Hon. Butts’ void order, Hon. Herman issued a

second void order on September 8, 2015: Minute Order

2015-070 in which he assigned Hon. Gladys Burwell to hear the

Motion to Recuse, only, of Hon. Wood. Even as a void order,

Hon. Burwell was not assigned to hear a Motion for

Disqualification. (The Minute Order was not a part of the

records of the case until October 19, 2015, three days after

action based on that Minute Order was taken.)

-23-

4. in a void assignment based on a void order, using a void order,

and although only assigned by Hon. Herman to hear the Motion

to Recuse, of Hon. Wood, not assigned to hear a Motion for

Disqualification, Hon. Burwell entered her own void order

denying recusal and/or disqualification of Hon. Mike Wood

on October 16, 2015.

As a result of that void order by Hon. Burwell, Calkins, through

current counsel, filed on November 2, 2015, Motion Re-Urging

Constitutional Disqualification of Judge Mike Wood, Based on the Prior,

March 5, 2009, Disqualification of Judge Mike Wood In Case Involving

Mary Olive Calkins, Carolyn James, and Richard Stephen Calkins, In

Which Hon. Olen Underwood Found Carolyn James Joined in the Motion

for Disqualification (hereafter “Motion Re-Urging”). Based on that

motion,

5. On November 20, 2015, with no [new, void] order of

assignment to have done so and with no notice to the parties of

a hearing set to do so, Hon. Burwell “reviewed” and issued yet

another void order denying Richard Stephen Calkins’

November 2, 2015, Motion Re-Urging Constitutional

Disqualification of Judge Mike Wood, Based on the Prior,

March 5, 2009, Disqualification of Judge Mike Wood In Case

Involving Mary Olive Calkins, Carolyn James, and Richard

Stephen Calkins, In Which Hon. Olen Underwood Found

Carolyn James Joined in the Motion for Disqualification.

J. Using the void orders, disqualified judge, Hon. Wood, is

resuming jurisdiction over the parties and the cases.

After Hon. Wood’s 2009 disqualification, as a result of the five (5)

void orders set out above, by setting this case for the appointment of a

-24-

temporary administrator for December 1, 2015,, Hon. Wood is now

attempting to reassume jurisdiction in this case involving the same parties

and attempting to enter dispositive orders by appointing a temporary

administrator, all in an effort to affect this case.

K. One of the fundamental goals of the American legal system

is equal justice to all under the law. 15

There can be no equal justice under the law if a recused judge [Hon.

Butts] is permitted to resume jurisdiction in order to enter a void order

which appears to be done so that other void orders affecting the parties and

the case can be entered.

There can be no equal justice under the law if the void order issued by

Hon. Butts can be used for Hon. Herman to issue other void orders which

could not have been issued but for Hon. Butts’ void order.

Finally, there can be no equal justice under the law if the serial void

orders permit a disqualified judge—Hon. Mike Wood—to resume

jurisdiction of the parties and cases in the continuation of a case from

which he was constitutionally disqualified.

15

Donald Nugent, Judicial Bias, 42 Clev. St. L. Rev. 1, 17, 1994.

-25-

L. Mandamus is the only adequate remedy for Richard

Stephen Calkins when challenging a void order.

Mandamus relief is proper in this case because the orders Mr.

Calkins challenge are void, giving him no other adequate remedy. 16

1. Mandamus is the proper remedy for challenging a

judge’s resumption of jurisdiction after

disqualification and /or recusal.

The serial void orders seem to be designed to re-establish the Hon.

Mike Wood as the judge presiding over these parties and cases, even

though he was disqualified in 2009 from presiding over the case involving

these same parties.

2. Mr. Calkins will suffer immediate and irreparable

harm.

It appears that all the void orders beginning with Hon. Butts’ Sept. 2,

2015, order have but one direction: that of enabling the disqualified Hon.

Mike Wood to resume jurisdiction over the parties and case he was

disqualified from in 2009.

Conclusion

Due process requires that Mr. Calkins be able to conduct his case

before a judge who has not already been constitutionally disqualified or

who has not already been recused, twice, and yet both resume jurisdiction

16

Urbish, supra; McGrew, supra, In re Southwestern Bell, supra

-26-

over the same cases and same parties.

The case of In re Hecht is instructive for the conduct of this

continuation of the 2008 litigation involving the same cases and parties,

over which Hon. Butts and Hon. Wood have previously presided:

[O]ur judicial system is based upon the cornerstones of

integrity, impartiality, fairness, and independence. In

discharging judicial responsibilities, the judge must be

governed by the Rule of Law, conduct a fair and impartial

hearing, and dispense justice as well as equity under the law,

according to the particular facts and circumstances presented in

each individual case. In re Hecht, 213 S.W.3d 547, 565, 2006

Tex. Lexis 1340.

PRAYER

For all of the above reasons, Richard Stephen Calkins respectfully

requests that this Court:

1. Call for a response to this petition and set a briefing schedule;

2. Grant oral argument;

3. Grant mandamus relief and vacate Hon. Butt’s Sept. 2, 2015,

order;

4. Order Hon. Butts follow Tex. Gov’t. Code § 25.00255 in effect on

July 30, 2015, by serving the county clerk serving the statutory probate

courts of Harris County with her order of recusal so that the county clerk

may follow the mandates of the Tex. Gov’t. Code § 25.00255(l) in effect on

July 30, 2015; and

5. Grant all other relief he is entitled to receive.

-27-

Respectfully submitted,

/S/ Susan C. Norman

Susan C. Norman

State Bar No. 15083020

P. O. Box 52518

Houston, Texas 77052

713-882-2066

713-229-8328 facsimile

CERTIFICATION

I certify that I have reviewed this petition and concluded that every

factual statement in the petition is supported by competent evidence

included in the record or in the appendix to the petition.

/S/ Susan C. Norman

Susan C. Norman

CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of Tex. R.

App. 9.4(e) because it has been prepared in a conventional typeface no

smaller than 14-point for text and 13-point for footnotes.

The undersigned certifies as follows: This brief complies with the

word-count limitations of TEX. R. APP. 9.4(i) because it contains 6,067

words, excluding all parts exempted by Tex. R. App. P. 9.4(i)(1).

/S/ Susan C. Norman

Susan C. Norman

-28-

Certificate of Service

I hereby certify that on December 1, 2015, a true and correct copy of

this document was served on the following counsel and respondent:

The Honorable Christine Butts Via Hand Delivery

Probate Court No. 4

201 Caroline, 7th Floor

Houston, Texas 77002

Telephone: 713-368-7171

Respondent

G. Wesley Urquhart Via Texas Efile

P. O. Box 20415575

Houston, Texas 77235-5520

713-582-0803

Attorney for Carolyn James

Phillip Calkins Strauss Via email

phillip.strauss@gmail.com .

Courtesy Copy to:

The Honorable Mike Wood Via Hand Delivery

Probate Court No. 2

201 Caroline, Suite 680

Houston, Texas 77002

Telephone: 713-368

/S/ Susan C. Norman

Susan C. Norman

-29-

APPENDIX 4

No.378,993

§ PROBATE COURT

MARYOLIVE K.~! § NUMBER FOUR f<tldttATE COURT 4

. ...,,..,. 'd\

AN INCAPACri.TEPJi~~N § HARRIS COUNTY, TEXAS

'~;·\;_~f~$$'~'

RECYSAL ORDER

',·~t

... j,~-~.~

On this day, th~~~oJff'~n its own motion finds that it is in the best interest of the

above-referenced cause of action for the Court 'to recuse herself, and the Court hereby

recuses herself from the above-referen.~d cause of action and all associated sub-

dockets, including 378,993-401, p to Tex.Govt.Code §25.00255.

IT IS THEREFORE ORDERED

assign this case to a judge of one qf:: arris County Probate Courts pursuant to

the Supreme Court of Texas

'"

Section 4.3 of the Local Rules for the Probate ~9urts of Harris County as approved by

on]une'~!;!~7iJ~\!r:

IT IS FURTHER ORDERED thatfudge Chd~!ine Butts will take no further action·

··~}· :t~

in this cause. ~, .... <·

""{;,f.:l~~~+~t

Costs associated with this order are w~ivect.

·~,.

Signed this [I day of March. 2~l1.

EXHIBIT

A

-·~------------------------------------------------------~--------------------

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy

Attest: 10/30/2015

Stan Stanart, County Clerk

Harris County, Texas

Appendix 4, Orders Recusal & Disqualification

Page 1 of 4

APPENDIX 4

~:.:,.i;:i ;:;\IX

PICK ue THrS oarm

t1~!:l ESTATE OF

CAUSE NO. 378,993

I IN mE PROBATE COURT

PROBATE COOftf':4

§

f

MARY OUVE CALKINS, § NUMBER ONE OF

§

§

AN INCAPACITATED PERSON § HARRIS COUNTY, TEXAS

ORDER OF RECUSAL

above-referen&d Cli~,~ctlo~;,tmP,. all associated sub..cJockets, including 378,993·401, pursuant

... -- - '<

to Tex. Govt. Code § 25.0025~~.

IT IS THEREFORE ORDEit!m:that 1iWis ma~be randomly reassigned by the county

_, .:·t:. _ (>- 'i:t _{;;:·

clerk to a judge of one of the other Hanis eo;I.iy,mfu~ .~ate courts pursuant to Tex.. Govt.

Code§ 25.00255(gXlXB). A''i!liul;w

ii~

IT IS FURTHER ORDERED that all costs Incident to this order are ~f!l~Y

,, ,,~;

SIGNED this~ day of March, 2011

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy

Attest: 10/30/2015

Stan Stanart, County Clerk

Harris County, Texas

Appendix 4, Orders Recusal & Disqualification

Page 2 of 4

APPENDIX 4

h.

No.378,993 PAOBATE COURT 114

INRE: § PROBATE COURT

·'"

,,·;

MARY OLIVE CALKINS, § NUMBER FOUR

AN ADULT lNCAPAOTATED PERSON § HARRIS COUNTY, TEXAS

RECVSAL ORDER

day, the Court on its own motion finds that it is in the best interest of the

~use and all related litigation for the Court to recuse himself. It is

,~·-::". t~~~:r.

therefoJ.'!'~;; . :!;i,

~:)t 1

"' ,ii,

ORDBRE!i>.1tfult the Honorable William C. McCulloch recuses himself from

6!~;...,

Cause No. 378,993 together wiili't!l·subdockets, if any; and it is further

~;_ ..;

ORDERED that the H , f ;.:·· :C. McCulloch will take no further action

in this cause except to refer this ca('{fl• p~jding statutory probate judge for the

State of Texas.

Pursuant to Section 25 of the Texas the undersigned hereby

requests that the presiding statutory probate judg~ fq~ ~$tate of Texas, the Honorable

Guy Iierman. assign a statutory probate judge to p~~~~l

Signed Augyst .2010.

William C McCuUoch, judge

Harris County Probate Court No. 4

EXHIBIT

I C

-·~------------------------------·----------------------------------------------

Confidential information may bave been redacted from tbe document in compliance witb the Public Information Act.

A Certified Copy

Attest: 10/30/2015

Stan Stanart, County Clerk

Harris County, Texas

Appendix 4, Orders Recusal & Disqualification

Page 3 of 4

APPENDIX 4

--·

I

'j

f'\'*,

,,~

• "\i' • :r~ COURT 12

• •... :.Ji

[J I

-;1g,q~:;

()

~~

I

). CAUSBN0.~3

Ci~

!.

JNRE: JNTHBPROiJATB

r:: ) §

§

i:l MARY OUVB CAULKJNS § COURT #20F

.I §

§

HARRIS COUNTY, TBXAS

W"!

I

(;)

r~ rl ORDER ON MOTION TO RECUSE

en

l\J

I\ APTER Hli:ARING

~'~>

c; 'l

I I On March S, 2009 came on to be heard, the Motion to Recuse filed pursuant lo TRCP ISa

I

I .\ in the above captioned cause. 'The Court has considered the Motion, aU attachments thereto, and

J. oil evidence presented, all citations of authority and arguments of~UIII!el.

~I~ :r. Therefore, IT IS ORDERED that the Motion to Recuse be and is hereby GRANTJID.

IT IS FURTHER ORDERED !hat the Clerk of the Court shall forward a certified copy of

:·I~

this Order to:

.I Presiding Judge

Scoond Adminlstnltive Judicial Region ofTCJtas

'f 207 West Phillips, 3111 Floor .

; ~ Conroe, TCltas 71301

Pax No. 409 538-8167

I

I I~ SIGNED this 5111 ofMarcll, 2009.

:I I

EXHIBIT

If)

---------------------------------------------------------------------------

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy

Attest: 10/30/2015

Stan Stanart, County Clerk

Harris County, Texas

Appendix 4, Orders Recusal & Disqualification

Page 4 of 4

Appendix 3

Appendix 3, Order Grant Motion DQ Wood

Page 1 of 1

Appendix 2 1

Motion to Disqualify

Mrir~h S /(Jn9

1 REPORTER'S RECORD

VOLUME 1 OF 2 VOLUMES

2 TRIAL COURT CAUSE NO. 275123 & 378993

3 IN RE: IN HARRIS COUNTY,

4 TEXAS

5 DICK C. CALKINS

6

7

8 MOTION TO DISQUALIFY

9

10

11 On the 5th day of March, 2009, the following

12 proceedings came on to be held in the above-titled and

13 numbered cause before the Honorable OLEN UNDEWOOD, Judge

14 Presiding, held in Houston, Harris County, Texas.

15 Proceedings reported by computerized stenotype

16 machine.

17

18

19

20

21 Edna Thornton

Deputy Court Reporter

22

23

24

25

Appendix 2, Reporter's Record March 5 2009

Page 1 of 13

Appendix 2 2

Motion to Disqualify

Mri rrh C) ?nn q

1 APPEARANCES

2 Michael Easton

P. 0. Box 646

3 Richmond, Texas 77406

Telephone: 281 415 8655

4 Attorney for (Pro Se)

5 Susan Norman

SBOT NO. 15083020

6 Attorney at Law

P. 0. Box 806

7 Richmond, Texas 77406

Telephone: 281 232 7574

8

Sharon Gardner

9 SBOT NO. 02877400

Attorney at Law

10 1401 McKinney, 17th Fl.

Houston, Texas 77010

11 Telephone: 713 658 2323

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Appendix 2, Reporter's Record March 5 2009

Page 2 of 13

Appendix 2 3

Motion to Disqualify

rvr~ rrh s ?nn g

1

2 VOLUME 1

3 Motion to Disqualify

4 March 5, 2009

5 PAGE VOL.

6 Eric Andel Direct Cross V.Dire

By Mr. Easton 4 v1

7

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1

8

Court's Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1

9

Reporter's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1

10 Andel, Eric 4 v1

Movant's 1 Amended Motion 4 vl 4 v1 Record

11

Movant's 2 Motion to Quash 4 vl 4 v1 Record

12

Movant's 3 Order 4 vl 4 v1 Record

13

Movant's 4 Response 4 vl 4 v1 Record

14

Movant's 5 Letter 4 v1 4 v1 Record

15

Movant's 6 Letter 4 v1 4 v1 Record

16

17

18

19

20

21

22

23

24

25

Appendix 2, Reporter's Record March 5 2009

Page 3 of 13

Appendix 2 4

Motion to Disqualify

M.:=Jrrh Ci ?nng

1 THE COURT: 275123, and 378993.

2 MR. EASTON: Movant would offer Movant's 1

3 through 6, without objection from opposing counsel.

4 THE COURT: Admitted.

5 MR. EASTON: I would like to call one

6 witness, ask him one question and let him go.

7 THE COURT: Okay.

8 MR. EASTON: Eric Andel.

9 ERIC ANDEL,

10 having been first duly sworn, testified as follows:

11 DIRECT EXAMINATION

12 Q Justice Andel, handing you what has been marked

13 Exhibit 2. The title of the document is Motion to Quash

14 Subpoena and it's on behalf of Judge Mike Wood, Probate

15 Court Two. At the bottom Judge Wood requests that there

16 be an admonishment.

17 A I see that.

18 Q Signed by his attorney.

19 Is an admonishment a sanction, yes or no?

20 MS. GARDNER: I'm going to object to him

21 asking an opinion. You're the Judge presiding over this

22 case.

23 THE COURT: Sustained.

24 Q (By Mr. Easton) From your personal knowledge

25 then, not as a legal question, is an admonishment a

Appendix 2, Reporter's Record March 5 2009

Page 4 of 13

Appendix 2 5

Eric Andel - March 5, 2009

TJirPrt P.xfiminfltinn hv Mr Ef!.stnn

1 sanction?

2 A In what context? It's contextual.

3 Q If you're a party to a lawsuit or before

4 official proceeding or judicial proceeding, is an

5 admonishment a sanction?

6 MS. GARDNER: Object again. Mr. Easton

7 knows that his lay opinion isn't relevant.

8 THE COURT: Sustained.

9 MR. EASTON: That's all I have.

10 THE COURT: Any questions?

11 MS. GARDNER: No.

12 ARGUMENT

13 THE COURT: Thank you. You are excused.

14 Argument? Anybody else have anything to

15 offer?

16 MS. GARDNER: I do not, your Honor.

17 MS. NORMAN: I join the Motion.

18 THE COURT: Okay.

19 MR. EASTON: Exhibits 1 through 6, very

20 narrow issue here. In January -- sorry -- February,

21 2008, as Easton Exhibit 3 demonstrates, you signed an

22 order disqualifying Judge Wood for filing a Motion for

23 Sanctions in the same case where he was presiding as

24 Judge. Judge Wood, as shown in Easton Exhibit 4, went

25 on in great detail to define what a sanction was and,

Appendix 2, Reporter's Record March 5 2009

Page 5 of 13

Appendix 2 6

Argument by Mr. Easton

MArch S /()()9

1 interestingly enough, quoted the codified section 10.004

2 of the Civil Practices and Remedies Code, a Court may

3 "impose a sanction on the person, a party represented by

4 the person, or both," leading all the way up to

5 contempt. He then goes on in the pleadings in Easton

6 Exhibit 4 to quote this Court's order and he states that

7 Judge Underwood, when you ruled, got it wrong, that the

8 motion for sanctions he filed against the parties was

9 not in Federal Court but actually in the probate court.

10 He's correct on that. Exhibit 3 would be your order

11 granting on the same identical grounds. And in Judge

12 Wood's pleading, which has been identified and admitted

13 into evidence, he once again requests that sanctions be

14 imposed against Ms. Norman and in the same case where

15 he's sitting as the judge.

16 From the viewpoint of what the law is, in

17 the case of Thomas versus Capital, the Court writes the

18 least severe sanction should be the first sanction

19 imposed. Judges are free to admonish or reprimand

20 attorneys. It's part of the sanctions. You can

21 admonish. Bradt versus West backtracks that language.

22 Once a request is made for any type of

23 sanction, "any orders or judgments rendered by a judge

24 who is constitutionally disqualified are void and

25 without effect. In Re Union Pacific Resources." That

Appendix 2, Reporter's Record March 5 2009

Page 6 of 13

Appendix 2 7

Argument by Mr. Easton

Mr~rrh s ?nnq

1 is reported at 969 Southwest 2d 427.

2 Civil Practice and Remedies Code also

3 defines admonishment as a sanction -- Chapter 10.004

4 which allows the Court the lesser sanction of

5 admonishment.

6 The final case, In Re Whatley, which is

7 the case that says as to disqualification, the motion

8 alleges Judge Wood is constitutionally disqualified

9 because he filed a motion to quash identification to

10 what he did hear, requested sanction. It is a

11 memorandum called In Re Whatley. Date is August 8,

12 2006, as reported in West Law 2257399. Identical

13 conduct. Recusal, disqualification. The Court of

14 Appeals said it could never be waived and every order

15 signed thereafter, if constitutionally disqualified,

16 would be void.

17 Without any further delay, I would ask the

18 Court to grant this motion because I didn't file a

19 motion to recuse. It's two different animals according

20 to In ReUnion Pacific Resources, 969 Southwest 2d 427.

21 I'm asking to disqualify based on constitutional grounds

22 for having filed a case against me and Ms. Norman.

23 You've granted that once. Your order, which was Easton

24 3, went to great pains if you recall it, your

25 Honor -- went to great pains to describe his conduct to

Appendix 2, Reporter's Record March 5 2009

Page 7 of 13

Appendix 2 8

Argument by Mr. Easton

M.::~rrh ll ?nnq

1 be neutral, unbiased, everything else, but it said once

2 he asked for the sanctions and placed himself in an

3 adversarial posture, however inadvertent, he was recused

4 from the case. The Court of Appeals says you can't do

5 that. That's a request for sanctions, disqualifies you

6 from sitting on the case. It's not a personal attack.

7 I don't need a witness. The Exhibits speak for itself.

8 I want to thank you for coming to Harris

9 County.

10 THE COURT: Ms. Gardner.

11 MS. GARDNER: She is not taking a position

12 as to whether Judge Woods should be recused. She just

13 wants an expeditious trial. We just need to get to

14 trial. I have a ward who is elderly. We don't know

15 what her health, physical my client is extremely

16 concerned.

17 THE COURT: You join the motion. Motion

18 granted.

19 MR. EASTON: Thank you, sir.

20

21

22

23

24

25

Appendix 2, Reporter's Record March 5 2009

Page 8 of 13

Appendix 2 9

Motion to Disqualify

Mr:J rrh s ;:wn g

1 STATE OF TEXAS

2 COUNTY OF HARRIS

3

4 I, Edna Thornton, Deputy Court Reporter in and for

5 the Project Court No. 2 of Harris, State of Texas, do

6 hereby certify that the above and foregoing contains a

7 true and correct transcription of all portions of

8 evidence and other proceedings requested in writing by

9 counsel for the parties to be included in this volume of

10 the Reporter's Record in the above-styled and numbered

11 cause, all of which occurred in open court or ln

12 chambers and were reported by me.

13 I further certify that this Reporter's Record of the

14 proceedings truly and correctly reflects the exhibits,

15 if any, offered by the respective parties.

16 I further certify that the total cost for the

17 .

preparatlon . Reporter's Record lS

of thls . $ I 07--

L"ta

and

18 was paid/will be paid by

19

20

Edna Thornton, CSR

21 Texas CSR 1306

Deputy Court Reporter

22 Project Court No. 2

Harris County, Texas

23 1201 Franklin

Houston, TX 77002

24 Telephone: 713-248-0745

Expiration: 12/31/2009

25

Appendix 2, Reporter's Record March 5 2009

Page 9 of 13

Appendix 2

1

EXHIBITS

c; ?nnq

Mr~rrh

1 REPORTER'S RECORD

VOLUME 2 OF 2 VOLUMES

2 TRIAL COURT CAUSE NO. 275123 & 378993

3 IN RE: IN THE DISTRICT COURT

4 HARRIS COUNTY, TEXAS

5 DICK C. CALKINS

6 MARY OLIVE CALKINS

7

8

9

10 EXHIBITS

11

12

13 On the 5th day of March, 2009, the following

14 proceedings came on to be held in the above-titled and

15 numbered cause before the Honorable OLEN UNDERWOOD,,

16 Judge Presiding, held in Houston, Harris County, Texas.

17 Proceedings reported by computerized stenotype

18 machine.

19

20

21

22

23 Edna Thornton

Deputy Court Reporter

24

25

Appendix 2, Reporter's Record March 5 2009

Page 10 of 13

Appendix 2

2

EXHIBITS

M~ s ;;nnq

rrh

1 APPEARANCES

2

3 Michael Easton

P. 0. Box 646

4 Richmond, Texas 77406

Telephone: 281 415 8655

5 Attorney for (Pro Se)

6 Susan Norman

SBOT NO. 15083020

7 Attorney at Law

P. 0. Box 806

8 Richmond, Texas 77406

Telephone: 281 232 7574

9

Sharon Gardner

10 SBOT NO. 02877400

Attorney at Law

11 1401 McKinney, 17th Fl.

Houston, Texas 77010

12 Telephone: 713 658 2323

13

14

15

16

17

18

19

20

21

22

23

24

25

Appendix 2, Reporter's Record March 5 2009

Page 11 of 13

Appendix 2

3

EXHIBITS

Mr:Jrrh s ?nnq

1

2 VOLUME 1

3 Motion to Recuse

4 March 5, 2009

5 PAGE VOL.

6 OFFERED ADMITTED

7 Movant's 1 Amended Motion 4 v1 4 v1 Record

8 Movant's 2 Motion to Quash 4 v1 4 v1 Record

9 Movant's 3 Order 4 v1 4 v1 Record

10 Movant's 4 Response 4 v1 4 v1 Record

11 Movant's 5 Letter 4 v1 4 v1 Record

12 Movant's 6 Letter 4 v1 4 v1 Record

13

14

15

16

17

18

19

20

21

22

23

24

25

Appendix 2, Reporter's Record March 5 2009

Page 12 of 13

Appendix 2

4

EXHIBITS

M;:,rch s 2n09

1

2 March 5, 2009

3 PAGE VOL.

4 OFFERED ADMITTED

5 Movant's 1 Amended Motion 4 vl 4 v1 Record

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Appendix 2, Reporter's Record March 5 2009

Page 13 of 13

Appendix 1

PROBATE COURT iJ2

.. '

()(')-

IN RE: IN THE PROBATE COURT

DICK C. CALKINS § NUMBER TWO (2) OF

TESTAMENTARY TRUSTS

§ HARRIS COUNTY, TEXAS

CAUSE NO 378,993

IN RE: § IN THE PROBATE COURT

MARY OLIVE CALKINS § NUMBER TWO (2) OF

Ui

Ul § HARRIS COUNTY, TEXAS

~ FIRST

flj AMENDED MOTION TO DISQUALIFY MIKE WOOD ON

J~ CONSTITUTIONAL GROUNDS

~

j TO THE HONORABLE JUDGE OF SAID COURT:

Q~

~~ Comes now, Michael Easton, Intervenor in both cases who moves that Mike

~

Wood disqualify himself in both these cases and in support he would show as

follows via this amended motion to disqualify: ...

. ~( ~

THIS MOTION IS FILED IN LIGHT OF ADDITIONAL Fi,GT~:\ ~

~g"1., m

THAI CAME TO LIGHT ON FEBRUARY 12TH 200~~ ~ N ;::

I. THIRD PARTY ENTRY BY WOOD ;~ 1<1:\< ~ r~

. ~ N

1

......

1. On September 24 h 2008, Judge Wood filed what he attempted to'pass off as

a motion to quash a subpoena. See Exhibit "A" annexed hereto and du)y incorporated

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 1 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

.

herein by reference as if set forth verbatim.

2. This alleged motion to quash did more than ask the Court to quash a subpoena,

it actually went on to insult counsel, impugn her integrity, and deliver arguments as

to why the previous motion to recuse filed by Calkins should not be granted. In

addition, this motion filed by Judge Wood also requested that Calkins counsel be

sanctioned, and that a third party, specifically, Michael Easton who had no

connection to the case be sanctioned as well for "filing" the motion to recuse.

Wood also attached a Houston Press "article~' and adopted the piece as his

argument opposing the recusal, and also attached a memorandum from U.S.

District Court, replete with factual inaccuracies that he both provoked when Wood

as the Trial Judge in cause No. 355095 In re Whatley, filed a motion to remand a case

that had been removed to federal Court. 1

J

3. Realizing now what he has done, if given additional time, Wood will now be

heard to say that the instrument that he filed was really a "deed- of- trust", and that

it was not an opposition to the recusal at all. However, the law reaches no such

result, for it is well settled law in Texas that it is not the title or style of the pleading

that controls, it is the substance and content, not the label ( i.e. motion to quash)

The Court read correctly, a trial judge who files motions to remand as the trial judge

m case.

2

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 2 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

affixed by the draftsman that controls. Bryan v. G.E. 553 S.W.2d. 415 (Tex. App.

1977); Mercer v. Band 454 S.W.2d.833 (Tex. App. 1970); Smith v. City a,(Dallas 404

S.W.2d. 839 (Tex. App. 1966). Se.e also Buckholts State Bank v. Thall man 196

S.W.2d. 687 n.w.h. Squyres v. Rasmussen 296 S.W.2d. 977 n.w.h., Smith v. Kraft 9

S.W. 2d. 472 n.w.h. Thus, a motion, no matter what it is called is to be judged and

determined not by its title or caption, but by its actual content and finally, its prayer

for relief. State Bar ofTex. v. Heard, 603 S. W. 2d 829,833 (Tex. 1980);Criton Corp.

v. Highlands Ins. Co., 809 S.W.2d 355, 357 (Tex. App. Houston [14th Dist.J 1991,

writ denied).

II. EASTON'S NON-INVOLVEMENT

4. The reason why Wood filed this purported motion to quash was in fact to

contest the motion to recuse, as there was no need to drag Easton into the controversy

as Easton was not a party to the suit, was not involved in the suit, and had no bearing

on it until Wood and Keys made him a party by seeking the sanction of

admonishment against him. Indeed, as Exhibit "B" annexed hereto and duly

incorporated herein by reference shows, Easton has made the decision not to get

involved in either of these cases. Sensing that this was not good enough, and just

like his previous motion to remand in Whatley, see exhibit "C" annexed hereto and

duly incorporated herein by reference, and his motion for sanctions as the Trial Judge

3

"-------------~-------------------------- --·--

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 3 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

in the Whatley case against Mrs. Whatley, Wood could not resist holding back as a

litigant in these cases, and made the deliberate decision to enter the case, oppose

recusal, and seek sanctions. Thus, no matter how inadvertent Wood and Keys may

now claim their actions were, Judge Olen Underwood recused Wood on these very

same grounds on February 5111 2008, when Wood requested sanctions in a case where

he was sitting as the trial Judge.

5. Although Judge Underwood's Order annexed hereto as exhibit "D" and duly

incorporated herein by reference states that Wood filed this motion for sanctions in

~ federal court, Wood promptly corrected that error when in the l25'h district Court

~

'~ Wood clarified that Judge Underwood had gotten the venue wrong, that the motion

I

~~ for sanctions was actuaiJy filed in the same probate case where Wood was sitting as

~

b the Judge. See Exhibit "E" annexed hereto and duly incorporated herein by reference.

~,

0~ Here, the action is the same, and the result is the same; Wood is Constitutionally

disqualified for ( l) entering the case, (2) actively opposing recusal, and (3),

requesting sanctions against Counsel, and a then non-party who intervened on

equitable grounds based on Wood's request for sanctions. 2

2

The sanction of admonishment is the lesser of all sanctions that trial Court can

impose upon being requested to do so.

4

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 4 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

III. JUDICIAL PARTICIPATION

6. In the purported motion to quash, Wood's participation goes one step further,

when Wood raises the affirmative defense of judicial immunity to the motion to

recuse. Although this affirmative defense would have no practical application to a

motion to quash as there is no immunity from testifying when summoned-- as

articulated by the United States Supreme Court in United States v. Mandujano

(Absent a claim of the privilege, the duty to give testimony remains absolute.) 425

U.S. 564, 96 S. Ct. 1768, 48 L Ed. 2d 212 ( 1976), Wood's invocation of judicial

immunity goes beyond the efforts to quash a subpoena, it resists the recusal, and as

the law makes clear, if the Judge participates and resists the recusal itself, then he

stands disqualified as a matter of law. Blanchard v. Krueger 916 S.W.2d. 15. (Tex.

App. [ P1 Dist.] 1995) (Orig. Proceeding). (Active participation by the trial judge in

opposing recusal can lead only to disqualification.) In this case, just like in

Blanchard, it is not whether Judge Wood would have received the sanctions he

requested, it was the fact that he, by written pleading requested sanctions, and thus

3

acquired a personal interest in the case. In addition, only a defendant would, or

3

There is no such thing as judicial immunity from testifying, and in fact the United

States Supreme Court has indicated that a Judge when subpoenaed must testify absent

a legally recognized privilege. See: Dennis v. Sparks l 0 l S. Ct. 183, 449 U.S. 24,

( 1980). i.e. 51h Amendment, Attorney/Client, Spousal, Physician/Patient. There is no

5

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 5 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

even could, raise an affirmative defense to any type of a request for relief, as

judicial immunity is an affirmative defense as a matterof law. Guerrero v. Refugio

County, Texas, 946 S. W.2d. 558, (Tex. App. ( l3 1h Dist] 1997). Thus, not content with·

resisting the recusal only, Wood enters the cases, insults everyone he does not like,

participates in the process, third party's in a non-party, raises affirmative defenses to

the recusal, and then requests sanctions. If simply asking for sanctions in Whatley

,.

was enough to disqualify Wood, then Wood has exceeded all expectations in

Calkins by filing his purported motion to quash. 4 In addition, Wood publicly stating

that he was going to call Judge Underwood in advance of a motion to recuse hearing

undermines the very purpose of why the Texas Legislature changed the law and took

recusals out of th.e hands of probate Judges. It was the evidence of Wood's use of

creature known to law as the "judge cannot testify" privilege except in Mike

Stafford/Fred Keys/ County Attorney folklore.

4

Because Judge Underwood did not specify on what grounds he was or was not

granting the motion to quash as prayed for by Wood, the Court of Appeals will see

the motion in its entirety with the knowledge that it was "granted", notwithstanding

the body of case law that says it should have never been granted on any the grounds

advanced by Wood. See Ludlow v. Deberry 959 S.W. 2d. 265 (Tex. App. [Dist.l4]

1997) ("On August 17, 1995, this panel issued an order sustaining point of error

three holding it was error to refuse to allow the testimony of Judge Chambers.

Accordingly, we abated the appeal and ordered the trial court to hold another

hearing on appellant's motion to recuse during which appellant could question

Judge Chambers.)

6

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 6 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

the telephone, among others, presented to the Texas ~egislature that prompted a

change in the law that is being circumvented by Wood using the telephone to once

again do what the law was intended to prevent.

IV. FALSE TESTIMONY INDUCED BY WOOD?

7. Annexed hereto as exhibit "F" and duly incorporated herein by reference is

Deputy Chung Gee's motion to quash asserting a new "privilege" created not at

common law, but at County Attorney "school" called the "bailiff privilege" under

"Rule 605". Thus, while a deputy sheriff who is taught at the academy how to testify

in court when summoned-- should he become a bailiff and witness an event; the

County Attorney now posits that Gee is entitled to the "bailiff privilege."

Notwithstanding the sheer frivolity of Keys and his minions, the testimony of Gee

is most disturbing for when asked on direct examination on September 25 1h 2008, if

Judge Wood had directed him to seize the telephone of Calkins' attorney, Gee

responded "NO" that he had done so ofhis own vo1ition. 5 Thus, the motion to quash

filed by the County Attorney was either false and frivolous; Gee perjured himself of

his own volition; or, Wood directed him to mislead the recusal Judge. In either

scenario, Wood is involved in that either Gee testified falsely, Wood directed it, or

5

He further stripped himself of all derived judicial immunity by his testimony.

7

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 7 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

the County Attorney violated the same rules that all litigants must observe in Court

by filing the motion to quash that contradicted Gee's own testimony. Indeed, as

Exhibit "G" annexed hereto and duly incorporated herein by reference shows, Wood

told Internal Affairs (of the Sheriffs Office) one story, while Gee, under oath told

another. However, one thing is very clear, someone is not telling the truth. Thus,

because Wood's testimony is crucial is discovering who committed a crime, his

testimony must be had.

8. Annexed hereto as exhibit "H" and duly incorporated herein by reference is

N

iJj the e-mail sent by Marilyn Lewis, another subordinate of Mike Wood. On September

f~

?cl 25 1h 2008, Lewis on direct examination, and again at the direction of Wood, testified

I

IJj

· falsely that she was contacted by the UPLC ( The Texas Unauthorized Practice of

~

l

~ Law Committee). This too is false, as Easton was serving under the district 4 chair

tn

~ of that same Committee at the time, and became aware of Wood and Lewis'

involvement when Lewis contacted the Committee, and in addition Lewis followed

up with a fax on Mike Wood's stationary. Thus, Wood is not only hiding his own

misconduct, he is directing th~lt his employees swear falsely when summoned to

Court. Accordingly, if the judiciary is to remain and honorable institution, Mike

8

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 8 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

Wood should disqualify himself and prevent any further inquiries in this case. 11

V. VOID PROCEEDINGS

9. In both criminal and civil cases, a judge's disqualification arising from a

constitutional o r statutory provision "affects jurisdiction" and renders the

proceeding a nullity. Davis v. State, 956 S.W.2d 555, 558 (Tex. Crim. App. 1997);

Lopez v. State, 57 S.W.3d 625, 627 (Tex. App. Corpus Christi 200 l, pet. ref d); see

Buckholts lndep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 148 (Tex. 1982) ("The

constitutional prohibition has long been held to make any order involving judicial

m

~ discretion by a constitutionally disqualified judge absolutely void,' a nullity."').

~~

~ Further, even if the parties consent, there can be no waiver of constitutional or

b

~ statutory disqualification provisions. Ex parte Vivier, 699 S. W.2d 862, 863-64

I

Oj (Tex. Crim. App. 1985); Lee v. State, 555 S. W.2d 121, 124 (Tex. Crim. App. 1977);

U1

0' 1

see Buckholts, 632 S.W.2d at 148) ( [D}isregard of the constitutional

disqualification is error that can be raised at any point in the proceeding 11) . No judge

shall sit in any case wherein the judge may be interested, or where either of the

6

It is obvious to the public-at-large- that Wood and his entire staff take the "Leona

Helmsley" approach to the law which is: "'Only the little people are compelled to

obey it-not us." See United States v. Helmsley, 941 F.2d 71 (2nd Cir. 1991) (''Only

the little people pay taxes ...)"

9

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 9 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

parties may be connected with the judge, either by affinity or consanguinity, within

such ·a degree as may be prescribed by law, or when the judge shall have been counsel

in the case. Tex. Cons!. Art. V. II. In addition on information and belief and as

will proved up at hearing Judge Wood concedes that he had no jurisdiction in this

case based on the failure of Crain, Caton & James to serve the proposed ward before

dividing up the Estate.

VI. CONCLUSION

10. On September 24 1h 2008, and despite not having any reason to do so, Judge

If.

t.Jj Wood entered these cases by (I) invoking an affirmative defense to the motion to

~~

~ recuse, (2) bringing a third party into the case, (3) maligning and disparaging counsel

I

~ and making false statements in his pleadings, (4) seeking sanctions, and (5)

f

Oj · participating in the recusal. Thus, no matter how deliberate or inadvertent these

~~·

~· actions w~re, he took an ad versa rial posture and position in a case where his personal

·lawyer, and his Jaw firm, Crain, Caton and James were involved. Accordingly he

stands disqualified as a matter of law.

WHEREFORE, PREMISES CONSIDERED, Movant prays that Mike Wood

enter an order disqualifying himself from any further involvement in these cases.

10

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 10 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

Respectfully Submitted,

/s/M ichael Easton

P.O. Box 646,

Richmond, Texas 77406

281-415~8655

EastPrQLaw@msn.com

CERTIFICATE OF SERVICE

On this the 12th Day of February 2009, I certify that I served all parties

including Mike Wood with a true and correct copy of this motion.

Is/ Michael Easton

I1

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 11 of 84

Stan Stanart, County Clerk

Harris County, Texas

I

Appendix 1

!

VERIFICATION

STATE OF TEXAS

COUNTY OF FORT BEND

Before me, personally appeared Michael Easton, who after being placed under

oath did afflrm·that he bas read the amended motion to disqualify Mike Wood and

that all the statements contained therein are true and correct to the best of his

infonnation, knowledge and belief. ~ ~

~N

Sworn. and subscribed to me on this the 121h day ofFebn1ary 2009.

RHONDA M ClARIC

·~~,~~levu{._

MV Cornmlsllon Expires NOTARY PUBLIC

Augusf 30, 2009

12

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 12 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

$EP-24·Z008 09:35AM FROM-Harris County Atty's Offica + T-056 P.OOl/019 F-25D

FACSIMILE TRANSMISSION

TO: Sharon Oamder Fax# (713) 658-1921

·susan Nonnan Fax# (281) 605-1822

S~zanne P. Kornblit Fax# (713) 524-2423

FROM: Fred Keys Fax# (713) 755-8924

·DATE: September 24t 2008

RE: Cause No. 378,993; Mary Olive Calldns; In Probate Court No. 2, Harris

County, Texas

Cause No. 275,123; Dick C. Calkins, Testamentary Trusts; In Probate

Court No. 2, Hams County, Texas

PAGES: 18 + Transmittal Sheet

NOTICE

'This facsimil!! contains CONFLDINTIAL INFORMATION which may also be LEGALLY

PRMLEGED and which Is Intended only for the use of the Addressee(s) named above. If you

are not the intended recipient of lhis facsimile, or the employee or agent responsible for the

dcliver!11g or copying of this facsimile is sttictly prohibited. lf you have received this facsimile in

error, please immediately notify us by telephone and return the original facsimile to us nt the

address listed below via the Postal Service.

Exhibit A

Page 1 of 19

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 13 of 84

Stan Stanart, County Clerk

Harris County, Texas

r----------------- - - -1- - - - - - - - - - - - - - - - · - ·

Appendix

SEP-24-2008 09:35AM FROM-Harris County Atty's Offica + T·056 P.002/0i9 F-250

No. 378 993

INRE: § IN PROBATE COURT No.2

§

MARY OLIVE CALJQNS § HARRis CoUNTY, TEXAs

-----------------~------------

No. 275123

INRE: § IN PROBATE COURT No.2

DrCI\: C. CALKJNS §

TESTAMENTARY 'l'llllSTS § HARRIS COUNTY, TEXAS

MOTION TO QUASI·J WITNESS SUBPOENA

To the Honorable Olen Underwood, Presiding Judge Second Administrative ·

Judicial Region;

The Honorable Mike Wood, Judge in Harris County Probate Court No.2, moves to quash

the witness subpoena issued by Susan C. Norman on behalf of Richard S. Calkins. The

subpoena purports to command Judge Wood to appear to testify in his O'Yn recusal hearing set on

September 25, 2008, at 1201 Franklin, Project Court No.2, Harris County, Texas. 1

Ms. Norman has a reputation of abuse of both the Texas recusal statute and the federal

removal process for purposes of delay and cost building. 2 Her faithful cohort, Michael Bitgood

Exhibit A, Copy of the Witness Subpoena.

Exhibit B, Judge Gray Miller's Memorandum and Order dated June 2, 2006, page 3, "A notice of

removal may nor be fl.led again in the proceedings of In re Ihe Guardianship of th(! Person and

£state of Perry Lee Whatley (Cause Number 355095), or any related mane!', without !.he prior

written approval of the undersigned Judge." f.n. 2, "Norman and Easton have abused the removal

procedures several other times in an effort to frustrate the guardianship proceedings. See e.g.

Southwest Boston. Senior Servs.,l11c. v. Perry Lee Whatley, No 05·11881-PBS (D. Mnss. 2005); in

Re Perry Lee 'Whatley, H-05-cv-2663 (S.D. Tex. 2005); Perry Lee Whatley v. Susan C. Nonnan,

H·OS-cv-3622 (S.D. Tex. 200S).

Exhibit A

Page 2 of 19

Page 1 of4

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 14 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

~EP-24·2008 09:35AM FROM-Harris County At~y's Office + T-056 P.OOS/OlB F-250

Easton, is also notorious for abuse of the judicial systern. 3 But, to his credit, Mr. Easton has

SUn'ived many investigations by the Texas State Bar for the unauthorized practice of law and

proudly announces business-as-usual.

This court is somewhat aware of the sad history of the Wharley case, involving the same

cast of characters (different clients, similar case). 4 In Whatley Ms. Norman and her clients were

involved in multiple motions to recuse Judge Wood; removals to federal courts before Judge

Lynn Hughes, Judge Patti Saris (Ma.ssachuseus), Judge Kenneth Hoyt (twice), Judge Vanessa

Gilmore, and Judge Gray Miller; multiple mandamuses, appeals, and dismissals. The direct

appeal of Whatley is pending in the Fourteenth Court of Appeals, Cause No. 14-06-00970-CV.

Simultnneously, the Whatley probate matter is being re-litigated as a meretricious civil rights

5

claim in Sun Life v. Walker, In the 1251h Judicial District, Harris County, Texas, Judge Paul

Murphy sitting by designation. Judge Wood's Motion for Final Summary Judgment based upon

judicial immunity is pending in that court; and has been since August I 0, 2007.

Now the antics resume. As much as Ms. Norman would love to make him so, Judge

Wood is not a party in this case. He is the judge. 6 Like in Whatley, Judge Wood has done

nothing outside his judicial capacity in Calkins. He has no lcnowledge of this case except in his

capacity as judge. He is absolutely immune from suit. Pierson v. Ray, 386 U.S. 547, 554, 87

S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967); Srump v. Sparkman, 435 U.S. 349, 362-64, 98 S.Ct

Exhibit C, Houston Press, June 26, 2003, "Bar Card -1'he antics of ilil ex-con raise questions about his

parnlc~al role.''

Exhibit D, Order Recusing Judge Wood.

Judge Hughes appropriately noted in tbe Whatley's flm attempt at removfll, "Because Whatley improperly

removed this ca.se -- meretriciously claiming defensive c:ivil-rigllts violations in an application for

appoirlttnent oftemponuy guardianship- it is remanded to the Harris County, Texas, Probate Court Two,"

"Judge Olsen is not a party to tbiB oppeal. He is the trial judge." In re /Jauer, 2001 WL S49027, 1

(Tex..App.-Hou. [lll Oist.) 2001, review denied) (Not designated for publication.)

Exhibit A

Page 3 of 19

Page 2 of4

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Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 15 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

S\P-Z4-ZOOB 09:36AM FROM~Harris County Atty's Offi~8 + T-056 P.004/019 F·250

1099, 1107-09,55 L.Ed.2d 331 (1978); Mireles v. Waco, 502 U.S. 9,11-12, 112 S.Ct. 286,288

(1991); Bradt v. West, 892 S.W.2d 56,67-68 (Te.x.App.-Houston [I Dist.),l994, writ denied).

fn order to compel Judge Wood to testify regarding his mental processes in arriving at a

judicial decision, Mr. Calkins must show extraor.dinary circumstances that would justify

compel!ing the judge to testify. Tate v. State. 834 S.W.2d 566, 569-70 (Tex.App.-Houston [1st

Dist.) 1992, pet. ret'd); Thomas v. Walker, 860 S.W.2d 579, 581 (Tcx.App.-Waco 1993, no writ)

("Regarding Judge Walker's ruling quashing the subpoenas duces tecum secured by Relator to

obtain Judge Black's testimony and that of his wife at the recusal hearing, no abuse of discretion

on Judge Walker's part has been shown.'"') Any inquiry into Judge Wood's mental processes in

arriving at his decisions would be improper and would threaten the foundation of an honorable

and independent judiciary. See Tate v. State, 834 S.W.2d 566, 569 (Tex.App.~Houston [Ist

Dist.) 1992l writ rerd). When no substitute for a judicial witness is available, the demands of

justice may require the testimony of a judge as a character witness. Joachim v. Chambers, 815

S.W.2d 234,238-39 (Tex.l99l). These are not the circumstances ofthis case.

PRAYER

Judge Mike Wood respectfully asks the court to quash the witness subpoena issued by

Ms. Susan Norman on behalf of Richard Calkins. For the record- Judge Wood is NOT asking

for sanctions against Ms. Norman, her client, or Mr. Easton. To be redundantly clear, this

motion to quash is not an nttempt by Judge Wood to gain any interest, pecuniary or otherwise, in

the Calldns cases. However, Judge Wood and his counsel would be remiss, as members of the

Texas State Bar to ignore the numerous abuses described above and fail to encourage the court to

use its inherent powers to admonish Ms. Noonan nnd Mr. Easton that this court will not tolerate

abusive methods of operation.

Exhibit A

Page 4 of 19

Page 3 of4

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Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: I 0/30/2015 Page 16 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1 l

SEP-24-2008 09:36AM FROM-Harrii Cou"ty Atty'• Otfica T-056 P.OOS/019 F-250

Respectfully submitted,

OF COUNSEL:

MIKE A. STAFFORD

-Fd~

Assistant County Attorney

Harris County Attorney Texas State Bar No. 113 73900

1019 Congress, 15th Floor

Housto1i, Texas 77002

(713) 755-3609 (telephone)

(713) 755-8924 (facsimile)

ATTORNEYS FOR JUDGE MIKE WOOD

CERTIFICATE OF SERV)CE

I hereby certify that on: September 24, 2008, a true and correct copy of Judge Wood's

Motion to Quash was served by fax and by certified mail, return receipt requested, to all parties

of record.

Exhibit A

Page 5 of 19

Page4 of4

Confidential information may h~ve been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 17 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

~EP-24·2008 09:36AM FROM-Harris County Atty's Office + T-056 P.006/019 F-250

Exhibit A

Exhibit A

Page6of19

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 18 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

SEP·24·2008 09:36AM FROM-Harris County Atty'& Ottice + T-056 P.OOT/019 F-250

THE STATE OF T.EXAS

W 1TNESS ~UBPO.ENA I SLIBPOENA DUCES 'TECUM

PURSUANT TO TEXAS RULES OF CIVIL PltOCJ~:.OURE RULE 176

CAUSE NO 371:1,!193

lNR.E: § IN 'f.HE PROBATE COURT

MARY OLIVE CALKINS § NUMBER TWO (l) OF

§ H.ARRJS COUN'IY, TEXAS

CAUSR NO, 175,!23

IN RE: § IN T'H.E P.R.OBATE COURT

DICK C. CAl.KJ.NS § NUM.lflnf. TWO {2) OF

TESTAMEN'rARY 'tRUSTS § HARR.lS COUNTYj TEXAS

To: Any !'heriffor constable of me St:nte of Texas or otherp~.:~t:>un Hu!horiv:x! to ~erve and

eKecute subpo~rnt..'l a..~ provided in Tcx.as Rule ofCivil Procedure l76.S.

You are com:rnl!t1ded to summon Michael Jl!.ma Wood, Judge nfPrnbatc Court NIUQber

2 nf Rarris County. IexBs, 201 Fr:mklin. Probate Court No. l, Harris Co11nty~ T~as\ to

appeu at J.ZOl Fnoldin, Project Conrt Nn. 2, Harris County, Texas, oo September 25, 2008,

at 10:00 11..1n., before Honorable Olen Underwood, and give tt:.Stimony in tWs case on behalf of the

Mnvom.and to remilin in attendll!lce from day-to-day untillawf\llly discharged.

Co11tempt. Failure by any person without adequate e.n:u~e tu obey a subpoena served

upon that person may be deemed 11 contempt of the court from. which th.: llnbpoeua ill ill Rued

or a district court In the ~nunty in which the subpoena is scf'\lcd, and mtl)' be punished by tine

or confinement, or both. Tex. R. Civ.t•.l76.8(a).

DO NOT Ji'ATL to return this writ to tb.e Probate Cou1:t No.2 of Harris County, Texas, with

either the attached officer's return ~:~bowing Lhe manner of cxe~;ution or the witness's signed

memornndum showing that the witness accepted the subp<.Jt.~IW .

ISSU.ED on September 9, 2008.

Ry: .s:, ~ c. ,.ftJ ~ t/;:;

SUSAN C• .NORMAN

TeXrlR aar .Number 15083020

· P.O. Bnx 806

H.icbmund, TCX.a$ 77406-0806

Phone: 281~802-534!

Fax: 281·605-1822

This subpoena wa."' issued i!.t Lht: rt:qUi.I'Sl of MovlUlt, Rlchnrd Stephen Calkins, whose

attorney of record is Susan C. Norman, P.O. Box 806, Richmond, Texas 1740l'i-0806, Phone: 281·

R02-S34l.

Exhibit A

Page 7 of 19

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 19 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

S£P-24-ZOOS og:37AM FROM-Harris County Atty's Office· + T-056 P.OOB/019 F-250

Exhibit B

Exhibit A

Page 8 of 19

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 20 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

S£P~24·2008 09:37AM FROM-Harris County Atty's Office + T-056 P.OOS/019 F-250

,, ••••••. • · • ,,...,._ ..,...,., _ _ , _ _ _ _ t U~ ..... I VI V

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISlON

§

lNRE PERRY LEE WHATLEY, § CiVIL ACTION H-05-3860

Guardianship Matter. §

§

MEMORANDUM AND ORDER

Before procet:ding with a case, a federal coun has a duty to examine the basis for its subject

matter jurisdiction, on its own motion if necessary. See Torrtq v, Southern Peru Copper Corp., 113

F.3d 540, 542 (5th Cir. 1997). After considering the notice of removal, the numerous pleadings in

this case, and the applicable case law, the court is convinced that it does not have jurisdiction to

entertain this probate and guardianship dispute. Remand to the proper Proba.te Court is therefore

appropriate,

Removal in this case was improper. Susan C. Norman (purportedly representing Perry Lee

Whatley) and Michael Easton removed thls case' from Probate Coun Two of Harris County, Texas

by invoking the removal provisions of28 U.S.C. § 1443(1) and§ 1443(2). This stamte states:

Any of the following civil actions or criminal prosecutions, commenced in a State

court may be removed by the defendant to the district court of the United States for

the district and division embracing the place wherein it is pending:

(1) Against any person who is denied or cannot enforce in the

courts of such State a right under any law providing for the

equal civil rights of citizens of the United States, or of all

persons withing the jurisdiction thereof;

(2) For any act under color of authority derived from any law

providing for equal rights, or for refusing to do any act on the

ground that it would be inconsistent with such law.

In re the Guardianship of the Pewm and Estate of Perry Lee Whalley, Cause Nnmber 355095.

Exhibit A

Page 9 of 19

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 21 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

SEP·Z4-2008 G9:3TAM FROM-Harris County Atty's Otfice + T-D56 P Dl0/019 H50

~ . . . . . . . . . . . ,..,. w• w...,._,""'""' t-r\wi'VYttn.,;aH itt rm:u VO/Ut.ILVVO r-age 'L OT J

28 U.S.C. § 1443. Courts have construed the phrase ''under any law providing for equal civil rights"

as meaning civil rights with respect to racial equality rather than the denial or abridgment ofbroad-

based constitutional rights that apply to all citizens equally. See, e.g., Smith v. Winter, 717 F.2d 191,

194 (5th Cir, 1983). Of particular note, the Fifth Circuit has stated that "broad first amendment or

fourteenth amendment claims do not satisfy the test, nor do claims arising under non-racially

oriented statutes such as 42 U.S.C. § 1983." !d. Tbe provisions of28 U.S.C. § 1443(1) and§

1443(2) do not support removal based on the allegations proffered by Susan Norman and Michael

Easton. In their various filings. Nonnan and Easton explicitly and implicitly allege n host of

claims-such as conspiracy, denial of due process rights, kidnaping, fraud> perjury-for which they

seek damages under 42 U.S. C.§ 1983. None of these, however, touches upon racial equality.

Moreover, the terms of the statute provide for removal by a defendant. The underlying state

matter was an application for the appointment of a guardian of a person and estate. The parties to

the guardianship contest were Perry Lee Whatley, Dawn Johnson Whatley, Jeanie Anderson, Robert

Daniel Whatley, and My! us J. "Jimmy'' Walker, Jr. Neither Susan Norman nor Michael Easton were

defendants in the guardianship or even parties. They therefore had no basis to remove lhe

guardianship contest.

Despite their own lack of standing to remove this ease, Norman and Easton challenge the

standing of the parties urging remand. The court will therefore assume arguendo that there is not

a properly presented motion for remand before it. Although a court may not raise the issue of

remand on its own motion, it must nevertheless consider the existence of subject matter jurisdiction.

See 28 U.S.C. § 1447(c); Ziegler v. Champion Mortgage Co., 913 F.2d 228, 230 (5th CiT. 1990).

Federal jurisdiction is nonnally detennined by examining the face of the state court complaint or

2

Exhibit A

Page 10 of 19

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 22 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

StP-24-2008 09:37AM FROM-Harris County Atty's Otfice + T-056 POll/019 F-250

.... - · - .................. ..,..,.,.,_""' lwfV\ollr,.JillVJ 1\ I I t

I"'II~U UO/UL/LUUt> r->age ::S Of 3

petition that was removed. As noted by the United States District Court of Massachusetts in

Sourhwe.sl Boston Senior Services, Inc. v. Perry Lee Whatley, No. 05-11881 ~PBS (D. Mass. 2005),

the application for appointment of a guardian of a person and estate filed in the Texas Probate Court

presents neither a federal question nor diverse citizenship of parties. As that court explained:

Here, the Application for Appointment of Guardian of Person and Estate filed in the

Texas Probate Court presents no federal question. In addition, there is no diversity

of jurisdiction because all parties to the Texas Proceeding- Robert Daniel Whatley,

Jeanie Anderson, and Petry Lee Whatley- were domiciled in Texas at the time the

Texas Proceeding began.

Dkt. 10, Ex. E.

This dispute is squarely a probate matter. Probate matters are firmly committed to the

province of state courts. Because this court is without subject matter jurisdiction, this matter is

REMANDED to Probate Coun Two of Hartis County, Texas pursuant to 28 U.S.C. § 1447(c), for

lack of subject matter jurisdiction. A notice of removal may not be filed again in the proceedings

of In re 1he Guardianship ofthe Person and Estate ofPerry Lee Whatley (Cause Number 355095),

or any related maner, withoullhe prior written approval of the undersigned judge. 2 It is further

directed that the order for mediation (Dkt. 105) is VACATED. All pending motions in this case are

DENIED as moot

Signed on June 2, 2006, at Houston, Texas.

NonnAn and Easton have abused the removal procedures several other times in an effort to frustrate the

IJUBrdianship proceedings, Set:, e.g., Southwest Boston SeniorServs.,lnc. v. Perry Lee Whatley, No. 05-11881-

PBS (D. Mass. 200.5); /11 Re Perry Lee Whatley, H-05-cv-2663 {S.D. Tex.. 2005); Pen-y Lee Whatley v. Susan

C. Norman, H-05-cv-3622 (S.D. Tex. 2005}.

3

Exhibit A

Page 11 of 19

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 23 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

SfP-24-2008 09:38AM FROM-Harris County Atty'• Office + T-056 P.012/019 F-250

Exhibit C

Exhibit A

Page 12 of 19

Confidential information may have been redacted from the document in compliance with the Public Information Act.

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 24 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

FROM-Harris County Atty's Office + T·056 P.0!3/019 F·250

J~P-(4-2008 09:39AM

.. ,I« •••.•

·:'If i · .·. j'·i .-::: ..

,_.f... I '' . l : ~ .'· ' : ~· • ' I

t:A!.fllDA/t tiUSIC AA lrtDLit.'

r:ruunliiU.Ol1Jt l.c~h fd>~nill prin1 ~t1.i-:lc llvt]lll,l~ur•t.ll11!1rwl ~ost Popular

Bar Card v.......d i:~~J~<.JII:ll """'

[0'ii;i:~.T,_;,cu7;~ ·-···--

The antics of an ex•con raise questions about his " lli;ht nlt~ndant went n!toi th" Ost<-ens in coun,

pal'lllegal role !lrin&iGr, on t!'l:;lo •nd tribulation ror one nnd •!I

n;r <:t>t.t:•nuillhn~l ·'> iliuJg~Jt.l:ll.lnJlacllf:(

71'1t nnincotpornted town ixup to its eJ!lo""' in youth

rubllah•d on J~no 26, ~c.o~ Ull!>$. pov~fiY und crim~ • loc.tl ftn~d, musf< tru1

When he WliS in fedcrnl prison, Michael £nston studied the

··~ ll~r-'loi.ul~rttm~l

Ht>U..Io~ Etll bk with ~k one

-i· LdlJ.l;wt1:eJ!Mrt1•~r id Cbj)d ''11''s•cti~c

I

1 ncM bt•stt

• f'rt&: Stuff

5Ub><:rlbo I

Jaw ond the Scriptures. Now Easton, who is nho :m ordained s..-rnr.~,

Por the fim )'IO>r, Jl,Qby l<a)'lllDnd lived bappRy wil~

J~~J;f~~~:::[~oJ

Baptist minister. couooels <~l1orncys he is fishrln& in «~urt on hif {QmUy. Then th~ lCtDt)' look him tW3y and <:VCn "«'(''" ..._.,.,,,.,.,.,. ... <

the Bible, sendi!l!; them spiritual advice by fax und e-m~il, or

thoutb bt. Chlllliii•·Alntrlt:lln famU~ fought to tel

l!h~ boek, they cculdn'tlind tllo dgbt wanb

.tllililiiP~·~;-n

~·:~...;.(r...;.....•,~·..

In letters emhlnzoned with the Texas (lt.'lte s~ul. '\~ ftUQ.Wl.lCJtJ~~~':!UlJ...k.Col\\l)IUU~U.'It:ll:QY~ thJJ'. 1oll 1 ttJQe (5.01 t)

tMwtw:lM (l66J

·~t· IWI'\hh ,,,Jt6\

...,.,...,~o.sby ·~~~~1), JN:ol H,Of0J

He refers to himself and the i<JIJH •iUOIL•Inmlr.t \!i 14l>l

attorney for whom he wori~S, PQtijr ,,u Cl•mh~i H<ll~it..,, T-.

. J. Ri~;a, as Duke & Duke: uftflr the

: Eddi~ Murphy-DanAykroyd p~ir

in the film Trading Plac~s. ("A.nd

: remember, Vulernine •..it makes no

· difference whether our clients

make money or losa money, M:llt

: DUke l!c Duke always getlhc

~ commission~.")

, \ Easton, so, 11 fu.ai!ti.;:.al basebaU

"""to""'~"' h•"ln• on. bein;

I~nf41rlyt:u;et<d.

· ·· ··-· ·-·· ·

• fan sits in his offlce wenrin" a

I •· "

·- ·~· Te?cu:~ R11n~;e.n; shirt, short.~~ and

runnin~; shoes. Sometimes he tali<S h'kc n rap star, &pea kill& in

a rhyming homeboy patois. Other times he rnttles ofibaseb~ll lllnp --·--.~----

~

stali.r;tics. He bas on almost photoVolpbic memory,and can. Munlfttoto.O!lh~>.~OW.trl~f

~'lltS..pe:Jo9i12AM

name tlle winner a:nd rcwta detnils of ever'}' World Series. His ~ I0~4iO:Uh~.Pulh.ul~o ••U.~..Tho}>'.lnll

Hyundai !!antra sports the bumper sticlcer "Real Men Lo"e Mon Sap ...... StOS I'M

. -1> JWin~J!LEI!l!m.l!lilila:lv 1ll8!!]1t!Ull

Jesus." Moil Sep ~c, 311&7 PM '

-) J\lltl:t.t.l.k!!!IWat.:11.i11ll.'·la.,'ir.»:~~

l'Je smokes clga~t \(;!6 as he ~lbhes victori~5 ovet his \eglll Mon!iep:>"', t:o91'M

adve.n;aries with quotes from the Bible 1mdJungl1 8ook.

-> H&:.l!llnn.Qijt.:JluliiU:lllC'I.!n..lln:WI.lltl'~tl'll'\"

Mon Sl:p :>a, 6;o;s }'M

wh.icb he Wlltehes time und ~sn.in with his fl....,.~ar-old lion. ~ lll:l"!:!Llol:cmntl.~lltll:N.1\'inUilU!tl>tb<-&m

b~.lim::tlC~nt:Jkv

"How d~licious," he says With a grin, lllkin{l a drag on bit~ ~'l'l Scp llh lt>::t:> A.'<!

cigarette. •·) Jil!L.l\~*4 \Vcc;kl'Jtrtt•· Jl•nl ('h;dlengc:J.L

Itld!x.Sll!UI~ 0111! l!h)ilCIX,~

'T'ueSop23, t~:~o.u.s

So Ellston i5 an ex•OJJn as well a!! il minist~r and devotee of ·> ~Q.;),:,~rull.livJ:~ttli.MQWWtd

sports minutille. One thil"4J he is not is an attorney. Alld Tua Sep ~s. 8:46AM

therein lies the problem fat this very active patnlcgnl.

Recent Articles by Zo~ C;Jrmlcha@>l

Some attorneys say Bust on steps out oftllc bounds of tho

-> JIAd!;tcd

duties a p.mller;ul <:~tomarily pqrfol'tllS, st:tin; ru; a lawyer Tit& eatic:r of All CX-CC>ll r.llsa qYCIIiolll Abo \It Ail

pnolo11ol lOIO

himself. They uccuee him of hiding behind his pun1eg3l

status, pulliog srunts that would )Selll.ll authentic Mtorney "!> T~;ll.Ql.hudl.

N•wdrilhqu~d try•u!J follow r-.c:k>l•ll"llationt Ill

disci:pllued. T...;uaty

http://www .houstonpress.com/2003-06-26/news/bar-cardJ 9/23/2008

· Hance with the Public Information Act.

Confidential information may have been redacted from the document m comp

Appendix 1, First Amended Motion Disqualify Judge Wood

A Certified Copy on Constitutional Grounds

Attest: 10/30/2015 Page 25 of 84

Stan Stanart, County Clerk

Harris County, Texas

Appendix 1

This text is long and has been trimmed here. Open the source document for the complete record.