# in Re Richard Stephen Calkins > Texas Court of Appeals, 1st District (Houston) · December 1, 2015 URL: https://www.frixlaw.com/law-library/cases/4074074 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** December 1, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4074074 ## Opinion text 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 -i- 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 -ii- “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 -iii- 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 -iv- 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 -vi- 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 -vii- 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. -2- 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. -3- 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; -4- 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 -7- 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. -9- 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 -11- 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- '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 ;~ 1un 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 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~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, musfU..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>r, Jl,Qby ll attorney for whom he wori~S, PQtijr ,,u Cl•mh~i H.~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::t:> A.' ~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 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 I S£P-Z4-ZOOB 09:38AM FROM-Harris County Atty's Office + T-056 P.014/019 F-Z50 I! Easton di,misses the complainIa, ~:lyiDx.'he :lltOrncys whu criticile hire simply resent his ability with the l11w, ~nd that -> ~hun~ 1 Seven Afri.. n-1\mttbn ;i' b triod uul lor then•·· City Slin(OrotiU urilltenm thi.t ya>r, None oflhc"' Ij 1 ! he does nothing unelhlcal. l__::~~~~~------·-··-~---..····-··-.....J •' llndex SERVICES l While th~: arguments continue, tho TeXll~ Supreme COUrt'H £m;.olu)'IO ii the l:~w as well as mtmy attorneys, and ~orne les~l :1Ssi11nments be has been in,·olvtd in hflve lumed ill to A ptiiCn 'lilY fnd bookrUfll(y r.C\d p~hicbn dftW•l· urc'" r..."'V.·RabcN M.-dle School • C•••tlvo VI~ .. ,,d ...,u I Vt("ff Sit• I precedcnt-senin~ ca~ law. E.a$ion, who ~~ys ht i~ 11 Puerto l Ric:Bn who legully changl·d his nama, is often cr~ss nnd unltind abom th~ buckground of others. 1 I He'~ called one black ;sdvcrsary "homeboy" and a 'while opponent "trailer tru~h." In a cuurt ple:~ding, he recently ref~rn:d to uhcrift's deputy liS "Bamvld 1•• \O ~ He p!ended guUly in 199910 mal.:int falsi! 'tatetncnu to :~xovemment al\eney and trying to dceoive a b~nk to i lulaw Ill(!; · rd let Y'l'l ~·ko credit lot th~ obtain~ loon. Easton had sued In an unsuccessfcl ~ffon to block the state from rc••oldng his private ln\'C:Stl~;~~tor's liet:nse in l99l- I violin 11 lt.k•v on my ! ln 199Q, Ea>lon reeelwd two :Z7•month prison terms after J>l.,•dinc guilty to bd!1kruptcy l'rilud Rnd froud L ne..cl':- involvinll student louna. He also had his &t.lte probation n."Voked. Three ye.:us c11rlier, a judge had found he NOW CLICK THIS I acted in bad railh in pursuing :m Involuntary b~nkruptey action against o la.ndlo!'d, and Easton Wl\5 hit with ~~ of tlouctan L~vndt p,my about $92,000 In sanctlous. Ad lr1d1'JC. 1/lr\ual Job Folr Olsltol Jukobo• Six years ago, U.S. District Judg~ Oa\'id Hittner forbade Ernily foU&JIIlC> 'It ~: ~ ~ ~ ·r~:Mm 1.. I but hi:~ client izi. liim bocl4•11 •nl.fnorlnm""' tl.~l71 : Easton, becaus.c btwyers nnd even i judges 3re ufrllld of him. 1 "H., hs~ sued sc"'eral judJJes nnd a l hllndful of attorney&," Buehc uid. · '1 have 23 published lawsui~ in i \ which he Wi!S a plniotiff, Rvecyone \ £uro~ ,,'11 b•'; • ono b~ln~ : is scn:red to do Mything nbour L•.·!~.w~r rn~~~.•o.. . .. : ll[m, because they know he will sue them. He cause.: so mucb misery. He keeps people tied up In rourt for years." But Easton said he h:~s chllnged, nnd hasn't filed a lawsuit in ten ycW'1i. Mls client Ia tbe on .I!Jwou:llRW!lll.Uuli.llclr.ll>..R~lwilll Mon Slip lt2. Sllrli'M firm hAu been "Inundated with the rnost vindictive, •P~~~R~ Mol'l Scp 2:, t1tl8 I'M emberrnsslng iUld anprofes~lonal correspondence and •\• DlllP.UUl'.!l.u.t.:Chi!Jt:..I'JJil"lin.llt:~;,tlDlUI!IiJ::iw pleadings." He added, "I expact to bc&ued for addressing thl~ M"n SCII :n, ''03 PM i.qsue and 1 routinely receive throats to be suc:d And ·? IIJ:\'C.oJtUttml Upnnl'a..\~luf,Uitl~l:l:tu'.Jll>r.d il):.ll\ln:k£ulL~.Il.w sanctioned for everything under the sun.." flrl S..p ;y, Ulll:t .ut •) J:lll':l..JIJ:l:.Wr..'>)!c;k.'l~:JIH d..Cho.Ut:nllllll. :rdv~I\~U.uu ZtmTt•n ""'n"'II~:I..M'lUill:Iltli Tu~ Scp :13, 11:46 Alii the lqwye1·. ~I must CQ'Ife.ss that I am deeply uoubled by what I hwe Rel! ..nt Articles by ~CHI Carmlch&lll witnessed and by the (act that Mr. Ea$ton Is permitted vis·il· -• liat..CIU'J.I vi!! Peter Riga, with seemins impunity, to hll.tliSs and ploguc The utica e( an I'JC-clll!. rallie q'IICJtioos about his pttl'll~&~l role the Hou. ~llllll Exhibit A Page 15 of 19 http:/lwww.houstonpress.com/2003-06-26/newslbar-card/2 9/23/2008 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 27 of 84 Stan Stanart, County Clerk Harris County, Texas ...-----------~-------· -- - · - ... Appendix 1 StP-24-2008 09:39AM FROM-Harris County Atty's Ollica + T-OSS P.O IS/0\9 F-250 In n document submitted to the t'Ommittec'~ chllirnlnn, Rig~ denied the a~\lsations Olguinst him and Ellston. JU~" 3ald that I s"'co Alrian·AIIIcricoA ~itlltrid out for tho CiiV SUn~•rc\11:• drilltulllthidc the •quod. ·r...,, I everything in the plcudings tllat le11ve his office is filed _;.;th ~l==============:::! his consent Riga wrote th11t Easton does refer to himself~ 1\'nlir•ll; AU;'.!H'Ofl\1 o[ l!oo:n. Orl•on Wllo Want A "Mr. Buclie upon hour!i oF ~musem~:nt Tho 1.1l•l'f oiii!11Yliiii\.CI(Jmt>n .Gi>.•emt.•hu"'' -CC,t/1 '01 A ~~'3~1 ~:;,..~d bi1nkr.,l) lcy c:; 1\' t kc.~r chhl BO•JI!:Ir-old Mtdl • . ~ Vl ew Aa I v; • ..., Site humor to play along with them." .~Ytvlr.e' Adoption AdYocltei, Inoutd !~t to know m~: 'l frequently rderrex profwor said. "Whether or not anyone wnol..\1 to eall him art It is .ttnother m:~tter." Vlmtol ~o~ f~ lr or,rt~ Jl.j)(obl>x Schuwerk said \hM l!.oston b probably unable to become an attorney because o! hls uiminal record, and i!hc had been :l.ll :~ttorncy, he likely would have been di5barnd for en&asing in earlier felonious activity. He snld th•n what pn111lega\s do iiJ'IU what lawyers do i6 marl o..oc.~ K~l;:.ri!'AIIn 0\l.!'llDAll tiUS!C 1'10\IEC xn.r:; IA:HUI (\JU.,.Ifl• U t•JlOI1UHOtS:: :.tAACH "l!>kib(X 2 !lcl(e!s for SID lhru Sr.v.lflmDcr R3rd Most Popul~.­ Bar Card v!.iwoa Continued from page 2 ~--·-- " ' - - · · - - """t I Houston PreSs Inside-rs I l lACroix was !ntreduious that the committee's invoatigatot 1j • Loco! food, musl; lnd nttW!lo bl.1s,t;$ • frH Stuff I ' would play down Easton's condu :ruMap 23, ""35 I'M ·:) '.(IIC.J.m:~~oc:t~.llf..H\IJ:I'ii:ooc..Ik~.nll,llii:Ol:Jlc:. Easton said he has been open ~bollt not bcin~ a lawyer and lrulll.\tl:)' Tuo S«i> ll3, '-til PM that his detractors ~m~ the bypocrltllli. ~> .l:l.l:lvill&~ltliiU'iJnJII:.I'nn~ M!ln Sep sh:, 6:oal'M '1My thiD,ts they wish lhey could ~ay." Easton 5lld. "I thll.\k I hold "P a mirror to lawyers, They see lhr.:m~~Clves in me, IUld "' •I\ they don't like what they see." 'tvc Sep 1131 UlJ>O AM ·> l'!!!J T!t:v!r'Xo 'Wf:.cl!. ·rlm:l'; Um! Cb>llMII:ell. nnd Pl!tt:bay !lunnlts •l're..,s...;ep:.....,..:.:.'.:.'n-~_AM _ _ _ _ _ _ _ _..J Exhibit A Page 17 ol19 http://www.boustonpress.comJ2003~06-26/news/bar-cardl3 9/23/2008 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 29 of 84 Stan Stanart, County Clerk Harris County, Texas Appendix 1 S~P-24-ZOOS 09:41AM FROM-Harris County Atty's Off1ce + T-056 P.OIS/019 F-250 Exhibit D Exhibit A Page 18 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 30 of 84 Stan Stanart, County Clerk Harris County, Texas Appendix 1 ~~P-24-2008 09:41AM FROM-Harris County Atty's Office + T·056 P.019/019 F-250 NO. 355,095 § IN RE: THE PERSON AND § lN I?ROBATE COURT No. 2 § ESTATE OF PEAAY LEE W.HATu;Y, § OF § A PROPOSED WARD § RAmus COUNTY, TEXAS § OlU>.ER oN MonoN TO RECUSE AFTER Hl:..Aru:NG On January 24, 2008, carne on to be heard, 1he Motion to Recuse filed plll'SUant to 18a of the Texas Rules of Civil Procedure in the above captioned CllliSe. The Court has considered lhe motion, its attachments, the eourt's file, all evid~:nce preseoted. and all citations ofauthorlty. The record indicates that, throughout the long and tonvo luted history o.f this case, the Honorable Michael Wood's bahavi.or performance as a judge has been thoughtful, un.biased, and impartiaL He has been a well-informed. weD-prepared neutral jl-lrist who has done nothing on the bench that would wsrrant recusal. The moving pru:ties have gone so far as to sue Judge Wood in federal court and attempted to subpoena him to testify in 1hat a.ction. The Harris County Attorney responded oa behalf of Judge Wood and filed a motion to quash the subpoena which included n request for sanctions. Once this request ~~u IJ:Uide, Jud&e Wood was placed in an adversarlal posture. however inadvertent, towards the movan1s and effectively re~ed him from sittiDg ou :further proceedings W. this case. Therefore, IT 1S ORDERED that the Motion to Recuse be and is bc:reby GR.ANtE.O. IT IS FURnmR ORDERED that the Clerk of the Court shall forward a certified copy of this Order tc: .:.'•,;!, . ..•••• ~ Presiding Judge .· }:.-:~....-~· ~ .... . .._ . Sccor1d Administrative Judicial Region of Texas " i ?: ~ ·. 301 N. MAin, Suite 228 ~ ~ ,, ;.: '.... 'y"'r• ,..,- -:. Conroe, Texas 77301 Fax No. 409 538-8167 .\:~~~:;-.:~--~::::~ ' SIGNED this eit?r~ Exhibit A Page 19 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 31 of 84 Stan Stanart, County Clerk Harris County, Texas Appendix 1 Law Offices of Peter J. Riga, Ph.D., J.S.D., J.D., LL. M., St.D., Th.D., Ph.L. [Emeritus 2003] Attorneys & Counselors at Law ' P.O. Box 52518 Houston, Texas 77052-2518 EastProlaw@msn.com (281) 415-8655 (Direct Ring) Michael Easton ·August 27: 2008 :~ ! ~ 't '91 Susan C. Norman in c:;;g~ G') r'fl ::0 ..,=:: • .. Attorney at Law n:r: ~ N ;:.:o g~ ) -~.. -.J r"l;o P.O. Box 806 ~n ~~· ~ CJ(f! ;'ael f.-sron ana the unautt>or1~ed prvctJce Qf law cata: Wed, 7 oec 2005 l6:5B:07 -0600 F.-om: ~-;,, llaillyn (Prvbetli CQUJ'tS)"'- rlb@rlblacklaw.co~ ~-------~--- .... ''- '·· FYI Md ooold~~" '"'""' thiS :Jimmy Walk"" woll? =="""'i""""'i='===~=--------------··------- ) Marilyn -----original MessaQe- From: Gunnels, Meg (Probate Courts) Sent: Wednesday, December 07 1 2005 ":56 PM To: Lewis, Marilyn (Probate COUrts); Wood, Judge Mike (Probate court) Subject: FW: Michael Easton and the unautt'lorized practloo or law -----Original Message--- From! Martha P.Jillng ?C [mallto:mfaillng@mind:;pring.comJ Sent: Wedl'lesday, Oecember 07, 2005 11:10 AM To: Gunnels, Meg (Probate Courts) Subject: Michael Easton and the unouthorlzed prl-a;e6of 14 Exhibit E Page 6 of 29 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 49 of 84 Stan Stanart, County Clerk Harris County, Texas Appendix 1 15. "The Texas Constitution disqualifies a trial judge fyom sitting 'in any case wherein he may be interested.' TEX. CONST. art. V, § II. Similarly, Texas Rule of Civil Procedure l8b(l )(b) requires a judge to disqualify himself from any case in which he may have "an interest in the subject matter in controversy." However, the interest of a judge, in order that he may be di$qualified, must, in general, be a t!ircct pecuniary or property interest in the subject matter oflitigation."6 16. On September 9, 2005, Susan Nonnan and Daniel Shea filed the now infamous MOTION TO DlSQUAUFYIRECVSE. THP.. Ho~ORABLE MIK£ Wooo. 7 The Motion is less than candid, listing as "Irrefutable Fact' in pamgraph 3: "At the concllision of the molion, Judge . - Wood, the named 'movant' requested that .sanctions be imposed. Thus, Judge Wood, by praying for ajftrmatil!e relief in the form of sanctions, did mor~ than request that his subpflena be quashed. He acquired a pecuniary interest in the case and cast himself as an adversary to the Whatlejls." Full disclosure would have been that Judge Wood's attorney pmyed for," ... an appropriate sanction entered pursuant to Chapter 10 of tbe Te!t!'S Civil Practice and Remedies Code." . Any sanction that awarded Judge Wood a pecuniary or property interest in the case would have.been inappropri~Jte and thus was not prayed for. 17. On June 1, 2006, the Fourteenth Court of Appeals remanded the case, s fmding .that Judge Burwell had not ruled upon the September 9, 2005 MOTION TO DISQUAI.ll'YIRECUSI! THE HONORABLE MIKE WOOD. After remand, on June 6, 2006, Judge. Burwell denied the infamous September 91b Motion.9. In re Whatley, 2006 WL 2257399, 1 (Tex.App.-Houston [ 14 GulfMaritime Wllre~OIUe Co. v. Towers, 858 S.W.2d 556,558 (Ttx.App.·Beaumont,l993, wril dt:nied.) Exhibit D, MOTION TO DISQUAUFYIRECUSE THE HONORABLE Mli11! H~ -lW5,'tn6tl!' 1mlt6 'tly rodrt 'Wt>Pht> b!: llec\~n:ll voi(l by the Coun of Appeals onlunc I, 2006. /11 re Whatley, 2006 WL 2948230,4 (Tex.App.·Houslon [14 Disl.],2006, no pet.). Exhibil !l, Judge Bwwcll's Order. Judse Wood's Response to lnt~enors' Mo!ion to Vacale •.. Page 7 of 14 Exhibit E Page 7 of 29 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 50 of 84 Stan Stanart, County Clerk Harris County, Texas Appendix 1 Dist.], 2006, no pet.) (SUPPLEMENTAL Mf.MORANDUM OPINION ON REIIF.A.RJNG, August 8, 2006) ("Since our opinion issued, the pending recusal motion was denied by Judge Gladys Bwwcll.") The intervenors now argue on direct appeal that Judge Burwell erred because she had no assignment and did not hold a hearing on the motion. Judge Burwell's decision to deny the t motion is currently pending before the Fourteenth Court of Appeals. Judge Burwell's ruling is l I on direct appeal from Judge Wood's final judgment in the guardianship. 10 Her ruling would be l the law of the case if upheld on appeal. Cou.rt ot Appeal a ol! Tex~oe, Houston (Uth Dht. .1. Pen:y LBB and oavn J'oh..noon What ley, ,Joined by Kicba.~l Ea.•ton, Appella.at 11 , l'tylua oJIIV\1!:8 Y. 'IIIALXER, JeAnie A.rl.daraoa, Robert Daniel tthatley. and. Mich•el J~a Wood, Appel tee a. No. 14•06·00970-CV. I I i Hay l4, 4001. I ; I Prcn the Probatl! Court ~o. 2 of Harria County, Texas Trial Court •caua:e Ho. ! Appellants• Opening Briat ! Michael loa•tcon, P.O. BoK Sl5U, Houston, Tcxo111111 7'7052, '71J~'771-U9'4, EilstProLaw I ..,.n.e~. l £li~jg!,. P.O. Box 5:2518, Houaton, Tlltx.lR '710S:Z, '7llM1'7lwB494, &iut:ProLaw l l e.t.&ll.COIII, Th~•, ttle argurw.ante udc by Appellees in the Probate Court t.h.at. Judge Bu~ell denied the pendiDCJ I\Otiau to di•quality .Judg• Wood on June ~. '200fi, !.all b1aed on four gr~•r 1. IA.clc of juried.iction. •• tbe caeo ..... e on dinrct appeal -.ad bad ao't bal!!l &bate~ or roaa~d. Cll: Vol. ~. (Kay 11, :ZOOJ). OOOfiO, 1in_,, 4:-5; :z. Uck ol ju'"iedictloD, ba1ed on tb~ hck of an order ot a••igDNent; 3 • .:7uclge Bu.rwell'l o.m pleadinqa, juc1ic:ial ad11i.aeiane, ed her .Jffidavit ltati.r.q that her iavolYttfMAt io tbh ca•e tenain.ated ~ Nov~r J, 2005, and that ohe waa not reappointed to baar any ot.haT N.t.tarJ. CRt Vol. l I"•Y 11, 4:001), oooo,a- 0001 o~; and, 4. Tbi• rx s»rto AJld unngtJr:ed bearing vaa •cooducted• by a ju.dge who vao. without an order ot .aaoi.gna.ent: ·vao "conducted• in Claar l...llke City, 1'•xae, out.eide of the COWlty aaat aa def.J.ncd by thie CO\Jrt iu H•llon S•rv.1r:c• v TotX"h• Ro••, •upr• C'l: Vol. l, (Hay 11, 2007), OOOJOJ .. OOOJ01. (County 1111•t i• t.he pJAco .where tho couJHY courtllouect 1a Jocatsd, •nd no other pJ.•c•f) (f'Nl&J PNl8. Thi• i1 yet ;mothtn; e.)l:~ple of Guy Hennan'o inapprOpriate •ctiona: r:alling Judga Burwell alld. direct.in9 her to go to Clear 10 A pro\»1~ cmitr m j'lldg1rLn\ u f~m\ if i\ tootlmi'lt\1 dl!.~Q of Mid i\ dtt\\ivt of 1ht U!ut m contravened question for which that particular part of the proceeding was brought, even if the decision does nol fully and f111ally dispose of !he entire probate proceeding. Fischer v. WilliaMs, 331 S.W.2d 210,213 (Tc •. l960}. Jurlgc Wood's Response co Intervenors' Monon ro Vee a~ ... Page 8 of 14 Exhibit E Page 8 of 29 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 51 of 84 Stan Stanart, County Clerk Harris County, Texas Appendix 1 J .· '. ' W-e. City~ Tau,, •rnJ th~h rule: on • ~t~l!lttC!t' wit.hQ~t qiY~I\9 not..u;~ to •rtyo!\rr, and dter SfUI flhd her att!da\IH in the cat•, ORDER ON MOTION TO RECUSE An'ER HEARING 18. Judge Underwood issued his ORDER ON MOTION 1'0 RECUSE AFTER HEARING on February 5, 2008.n The purpose of this analysis is not to challenge the ruling. Since February 5, 2008, Judge Wood stands recused. There is no appeal. The purpose of this analysis is 'twofold: (!)The language of lhe ORDER is not as clear as is represented to this court by lhe intervenors; and (2) the intervenors • application of the ORDER to this case is their same "void'' argument. 19. Like the decision in Whatley,'l Judge Underwood finds that Judge Wood".•. has done nothing on the bench that would warrant recusal." 20. The second paragraph of Judge Underwood's Order gives the reason for granting recusal and is best broken down sentence-by-sentence. a. "Th~ moving parties have gon~ so far as 10 sue Judge Wood in fed~ral court and artempled to subpoena him 10 t'stif:y in thai action." It is true that the moving parties, intervenors in this ease, have sued Judge Wood in federal court. However, there is nothing in the record lo show that Judge Wood was subpoenaed to testify in the federal cases. The only witness subpoena issued or quashed was the August 5, 2005, Daniel Shea witness subpoena discussed in, 13, above. Mr. Shr.a subpoenaed Judge Wood to testify in the hearing to recuse him (Judge Wood) on August 9, 2005. II t!Xtrlbit F. O!uJ~R ON MO'TIOII'l'O REcuSilAFTI!R Hl!ARINO. ll In " Whalley. Not Reported in 5 .W .3d. 2006 WL 2948230. 2 (Tex.App.•Hous. (14 Diil., Ocrober 13, 2006)) Allhou~on n:lacor's argument i1 that tile September 9"' d,i"lualificuion ponlon of the recu$.01 motion waJ not referred, we find no merit to lhatvgumcm. The September 911> motion w.. referred to rile l'l'esiding Judge and wu assigned to Judge BUJ"WCClTiing 11 pany1. Tl>treforlificationlrecual, iu submnce w;u instead a motion to recuse under rule 18b. Juda:e Wood's Raponae to lnterveoon;' Motionl.o Vacate ..• Page lO of 14 Exhibit E Page 10 of 29 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 53 of 84 Stan Stanart, County Clerk Harris County, Texas Appendix 1 'I would be l Rb(2)(a): "his impartiality mighl reasonably be quutirmed;" which is ground for recusal, but- not disquali[ication. 21. The intervenors have presented no evidence (other than llieir motion) to support their claim that Judge Wood has any pecuniary or personal interest in Mr. Whatley's guardianship. And, it is obvious that Judge Underwood finds that Judge Wood had no pecuniary or personal interest in the case. 14 Without such interest, there are no grounds for constitutional disqualification. 22. Why is the distinction important? A trial judge may be removed from presiding over a particular case because: (I) he is disqualified under Article V, section 11 of the Texas Constitution; (2) he is disqualified under Section 74.053 of the Government Code; or {3) he is subject to recusal under ci vi! procedure Rules 18a and 18b. In re Union Pacific Resources Co., 969 S.W.2d 427, 428 (Tcx.l998)(orig. proceeding). The grounds and procedures for each type of removal are fundamentally different. In re Union Pacific Resources Co., 969 S. W.2d at 428. "When a judge continu~ to sit in violation of a constitutional proscription, mandamus i5 available to compel the judge's mandatory disqualification without a showing that the relator Jacks an adequate remedy by appeal. . .. This mnkes sense, because any orders or judgments rendered by a judge who is constitutionally disqualified are void and without effect." !d. Conversely, "the erroneous denial of a recusal motion does not void or nullify the presiding judge's subsequent nets. While a judgment rendered in such circumstances may be reversed on appeal, it is not fundamental error and can be waived if not raised by proper motion." !d. This is precisely why the intervenors directly appealed Judge Burwell's Order denying the same Judge Undorwood's OROI!Il o~ Mono~ TO REcuse AFreR HEARod)coiCJ U..~ lhrou&)>o<>l !ht 1MB .IIHl CMYOMtd hiJiary of lhiJ c-, 1M H01>1>r.abJe Mit~! Wood'.t behavior perfonnance u a judge lw been lhoushtful. unbiased, and impllnial. He hu been a well· informed, well·prepared neutnl juri•t who tla• done nothing on lhe bench !hat would wamnr rccU$GI." Judge Wood'• Response to Intervenor>' Molion to V•catc ... Page II of 14 Exhibit E Page 11 of 29 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 54 of 84 Stan Stanart, County Clerk Harris County, Texas Appendix 1 September 9, 2005, MOTION TO DtSQllAUFYIRECUSE TllE HONORABLE MIKI! WOOD. Their direct appeal is pending, sec above, p. 8. Application to Sun Ufe 23. The intervenors continue to skirt the issue. "Complete absenc~ of all jurisdiction'' means that they must prove to this coun that Probate Court No. 2 has no subject matter jurisdiction over this contested guardianship case. Otherwise. absolute immunity applies.'~ It docs not matter how many orders issued by the probate court arc subsequentlydcclared void. Orders are not "void" until a higher court says so. In re Easton, 203 S. W.3d 438, 441-442 (Te;.;, App. - Houston [ 14 111 ] zoi:J6, no pet.) ("In his first issue, relator [Mr. Easton) contends all of Judge Wood's aforementioned actions and orders are void because several motions for recusal were still pending against Judge_ Wood. As we have previou.~ly noted, Whatley's motion of September 9, 2005, was unresolved at the time Judge Wood issued his order of February 7, 16 2006.") The facts in the Brandt case are suilingly simile.r to this case. "lnhus, the question is not whether [Judge] West acted improperly when he signed the specific order complained of, but whether he had the jurisdiction necessary to sign an order of that kind, i.e., a show-cause order, in the case. He clearly did. Signing a show-cause order-even a void one-in a case before him is an nct within a district judge's 'jurisdiction,' as that term is used for judicial immunity purposes. Therefore, regardless of the motion to recuse. West acttd within his 'jurisdiction,' as zhatzerm l.J used in judicial immunity analyses, when be signed the sbow~ause order." " Stump v. Sparbr.Dn, 435 U.S. 349, 362·64, 98 S.CI. 1099, 1107.()9, SS L.F.d.2.App.-Houston (J Diu.},l994, ...-it denied}. Judge Wood'• Reoponse to lntcrvenou' Motion to Vacate ... Page 12 or 14 .·. Exhibit E Page 12 of 29 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 55 of 84 Stan Stanart, County Clerk Harris County, Texas Appendix 1 24. The intervenors have never established how Judge Wood, under !he facts of this ·case, violated any ~pecific con~titutional right or how his acts 17 were objectively unreasonable. In determining whether an official enjoys qualified immunity, the court asks (1) whether the plaintiff has demonsuated a violation of a dearly established federal constitutional or statutory Tight and (2) whether the official's a~tions violated that right to the extent that an objectively reasonable person would have known, 11 Conclusion 25. The intcrveRors' Motion to Vacate !ll!erlocUiorv Order ?f Dismissal wjtiJQut ~ is further response lo Judge Wood's motio~ for final summary judgment. In their motion the intervenors do not offer any new facts to sbow that their claim under TEX. PROBATE CODE§ 671 has ripened. The intervenors' do not support with fact or Jaw their conclusory notions interpreting Judge Underwood's ORDER ON M0110N TO RECUSE AFTER Hti.AIUNO. Neither the words "disqualify" nor "disqualification" appear anywhere on the four corners of Judge Underwood's ORDER. The intervenors asked for di$qualification. They got recusa!. In any case, even if their fanciful inll:rpretation prevails, it does not matter because their best case does not defeat either absolute or qualified immunity under 42 U.S.C. § 1983. Prayer 26. Judge Wood reipectfully asks th1: court to grant final summary judgment, and for any other relief to which he may be justly entitled. " Judge Uoderwood'J ORPI!R ON MOTION TO Rlle\JSil Al"''l!ll HI!Ailll'&houl the long tnd convolu~ his10ry of lhis cas.e, the Honorab!<> Michael Wood'& behavior performance u a judge has been thoughtful, unbia.sccl, and impl.l\ial. He llu been • well- infwmed, well·psepat~d neutral juri11 who has d011e nothing on lh• bench thai wopJd ""''TITDI r~l." !l /{opt v. Pt/ur, 516 U.S. 730, 122 S.C\. 2508, 1$3 L.Ed.2d 666 (2002); srt o/so Be/Ira• v. City of El Paso, 367 F.Jd 299, 303 (5th Clr.2004). Judge Wood's Rupo~U to lntcT\Ienono' Motion 10 Vacat¢ .• , Page 13 ofl4 ----~---~~-------- ·i,, ;.;: Exhibit E Page 13 of 29 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 56 of 84 Stan Stanart, County Clerk Harris County, Texas Appendix 1 Respectfully submilted, OF COUNSEL: ~~~ FRED A. iEYiJie MIKE A. STAFFORD AssisUlnt County Attomey Harris County Auomey TeJtas State Bar No. 11373900 I 019 Congre~s. 15th Floor Houston, Teus 77002 (713) 755-3609 (telephone) (713) 755-8924 (facsimile) ATTORNEYS FOR JUDGE WOOD CRRTIF1CAIE OF SERVICE l hereby certify that on: February 12, 2QOR, 11 true and correct copy of Judge Wood's rl Response to Intervenors' Motion to Vacate Interlocutory Ordc:r of Dismissal Without Prejudice ¥~ has been ser~~ed by certified mail, rerum receipt requested, to aU panics of record. I 0j ';j ~ 1 I Qj 0~ ~ Judae Wood's Response t() Intervenors' Motion Ia V~~6rru Cowlly, Teow, IIIII wbo II ~·ted rn m{d. wilblu Q~e hunrlr.O.rdly milu of lh• Coul1bouoc of Hmil C01111ly, Tau, iP wbi\lllll lrithit~IIICb d!mucoat tho timo of O!o hwlll& to appell' before Hon. Ruucll AU$1ln lilting by a•l&nmtnl illt!wo County ProO&U Cowt ll Low No.2, 11 U ConJ!!W, Houi!Oll, TX 77002 in and fbr a.m. Co0111ty, on lilt~~~~ day of A~1"112005 't 1:30 p111, to tostH\r u • willlos. on bel:roff of tb• Po.ny !n 1l!t abovo •tylod P!Obato A¢11ld Coun, with ..tum llloreon.abowlng!h• marmec of IXOCIRI¢n. Wllnau my omoltlli811&tut11 thlslht ~y of~' lGO$ li.equ61led by; Oonl.t J, Shea ( , Attorney at Law " l9lBWutB.ellS!IIIot ~~ HoUIIOll, 1'X 71002 By:._..; tho trial jud~:o, any Inquiry Into hi• l'llenlal procem• would bo lmpro~ 111d wo11ld lllreaten lh• founda1io111 of Ill! i.ndllpfmdllllt lllld honorable judiciary, See U.S. v. Morgan, 313 U.S. 409, 422 (1941); Cltiun: to Pmtrrn Owrrton Park v. Yolpe, 401 U.S, 4021 420 (1971); Br-111'/y ~. U.S., 46S P.ld 743 (S 111 C!r. t97:t), The party tbal terved lhc su'bpollll6 on Movant h~ neither •lleaed nor proven III)Y crxtnordlnary cin:Ul'llllancet that WO\lld juallfY ccmpelling movant to tll$llfY. IV. Cue l~w olc61'!)' boldolhat a judge's tes~imouy aho~ld never 'bo compelled wnan my 7·240 (Tex. 1991); Tat•"· Sr~t-, 834 S.W.2d 566. 510 (Tex. App. -Houston tV'""",-,;.' ~rd), A CERTIFIED COPY ATTEST: FEB 12 2008 BEVER'L Y 8. KAUFMAN, Counry Clerk Horri1'County, Teltas · Exhibit E Page 16 of 29 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 59 of 84 Stan Stanart, County Clerk Harris County, Texas Appendix 1 ',• .. WHB!l.BFORB PRBMJSES CONSlD!!lU!D, movant proys !hat tho l!llbpoena dlreet•d lo him in the above ceuJa bo quashed and Nl appropriate 1.\lltlloll entered pur1N41ll to Chapter HI oftbe Teo 1-larrit Collllty Auomey ar.Uf~ l'ra.nlc Sanden SBN maasoo A.Nia!&l)l Co~~t~ty Al1omoy 1019 Con31'n Ave., If' Floor Houlton, Texa1 77002 {713) 7S5·7961 {713) 7$$·8924 (Bl( A CERTIFIED COPY AITEST: FEB 12 ZOOS BEVERL Y':'CB~.""K,.-:-A-:-:U-::cFMc-:A~N""','""c:-ou-n-ty-::C::-Ic"":'rk- Harris County, Texas Exhibit E Page 17 of 29 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 60 of 84 Stan Stanart, County Clerk Harris County, Texas Appendix 1 I ~~ ' 1 NO. 35S,095 lN RB: GUARDIANS!UI' OP Tim IN PROBATE COURT PERSON ANOBSTATEOFP!RRY U!EWHATLBY ~BRTWOOP JWUUS COUNTY, TEXAS BE rr RBMEMBHJU!D thtt on tbo data bmlnbolaw w;iuea tame on for he arias the Motion to Qua&b Subpoena torv6'4 on lucl&o Mike Wood, and tho Court bllving APPROVl!O AS TO JIORM: I MlKB STAFFORD Co!lll1y Anamoy 99999939 By1~~ :PiJSandcn !IBN mmoo A11lrtant Co11111y Auomey 1019 C""greu Avenuo, 1511\Ploor Houaton, Tcxu 71()(11. (713) 755-7961 (713} 7.1$·89:14 fu A CERTIFIED COPY ATTEST: FEB 12 2DD8 e: BEVERI.Y KAUFMAN. County Clerk HarTil County, Texa.t Exhibit E Page 18 of 29 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: I 0/30/2015 Page 61 of 84 Stan Stanart, County Clerk Harris County, Texas Appendix 1 PROBA-T£ COURT t:1 NO.m,c9~ IN lfE: THE PERSON AND ESTATE IN THE PROBATE COURT OF OF PERRY LEI! WHATLEY, HARRJS COUNTY, TEXAS A PROPOSED WARD. COUl!.T NUMBER (2) TWO MQIION IQ lllSQUAL(l!Y/RECUSJ!: TilE HONOMBJ& MIKE WOO!;! TO 1"HE HONORA.BLB M!KB WOOD: Movanl, the Proposed WMd, Perry Loc Whatley, joined by Dawn John.son Wbatlcy, respeetfully rue lhls lhell motion 10 rc.cuseldiutualil'y Judae Mike Wolld and in 111pport they would rhow at follow•: !. JRRBfUIABt.a rACIS L 011 or obouc August l, ~OOS, Judge Wolld hired lbo County Attorney of Ha.rri.s County, ToxDS, to rue 11. motion to qiWh hi1 .1\tbpoena. 2. 1ud~e Wood ft.led a motion wrueb $lolcs In part: "Comes oow Judsc Mlli:c Wood, Judp:, Probate Coun Two of Hurls County .•• ,•· 3. AI !he wnc!usion oithc motion. Judge Wood, the named "movant,~ requ•Jt•d tlult san~tion1 be impo:~ed. Tb.us, Sud11c Wood, by pl'!lyiag fonffirmallvo rclief!o tho form of sanctiona, did more lbllll requ011 tlult his .JUbpoena be QUl!Shod.' He acqu!Rd • pecuniary interest in tl1c case Md C1131 himstlf A! an adWtwy to the WhaUeya.' 11. IH1! I,AW ON PQjN"{ of li!Jna a motion to qlllllh ln which he ~ucstcd sanction~. Thus, he bceame a pl!l1)' to 111~ 1 The motion 10 quuh Ia M.lloxed hereto 1$ exblblt "A" and duly II\COIJlOIIted he~ein by n:!orcn'"' A CERTIFIED COPY. ATTEST: FEB J 2 2008 BEVERL'I B. KAUFMAN, Count)' Clerk Herril County, icxa.s Exhibit E Page 19 of 29 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 62 of 84 Stan Stanart, County Clerk Harris County, Texas Appendix 1 '• ,, underlying suit Th~ Toxll! Cotutitut!on prohiblu Judge Wood from conlilluin& at a judge in this Cll!O. ''Najudgrsltallsl/ln atrycase whertlnhr ma)'be ITII~ruttd .... " Tsx.COI>~ll'T.lll'!. S, §§ ll· ff. (ompba.sls lldd:d). S. Th~ (nwes! tbal disqulll!lics a judgo is Ill inl~t, however .!mAll, which rests on a dlre~t ~uniary or pcnonallntt.mt in lho n:~rult of the cue, Cameron v. Oremhlll, 582 S,W,ld 77 S, 176 (J'ex.l979J. [n Cam1ron, the Sup~~me Court h~d a pllrty may not eauJc !ht; rc~:uul of n jlidae by naminj the judge AS llj)lll'ty 10 lho nut. Howave:, thai iiOOI .... batlla~ed !!ere. Judge Wood, by requestina tllllcriOils, eul hit~~self in an adver>arisl role. Thus, 111 a dire~\ ruult of bis llll11on•, "[o]onlltltutlonal diJqualifiea!lon [will render! &ny order lnvolvlna judicial discretion absolutely void," Bucltho/11 J.SlJ. v. GilMer, 632 S.W.2d 146, 148 (Tox.l98'2). 6. AmGng olhcr cxlll'llplc• of constitutionlll dlsqu•lWeotio.n is a c.ue In wnlch a )udae voluntarily p&rtidpalr.cba!lcngc the denial of a rnotion to recuse). 7. Hm, the N!o applies with eq1.11l if not gru~et force for a request for sanc!lons A CERTIFIED COPY ATT!!ST: FEB 12 ZOOS BEVERLY B. KAUFMAN. County Clerk Harri' County, Texas Exhibit E Page 20 of 29 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 63 of 84 Stan Stanart, County Clerk Harris County, Texas r··--- -----·---··-··--·· ... ·--·- -·--··-·. · -·- -·----- ·--··- . . --·---... -. Appendix 1 ~, .. .. l INilte:!lB cltbor mJ!~nduet oo lho pllrt of th~ movanl.i or the Ollng of o frivolous motion which, In the instant Cllse, was not even remotely tnlo. Accordingly, having eqt hlmsclfvoluau~rily io the role of an BDVC!SIUY, Judge Wood stands disqualified u 1 m~tler of law. ill. R£0UESJ FOR BglJEf WHEREFORE, PREMISES CONSIDERED, Movants ~U~Ue:!t that prior to any further I proceedings in thiJ case, HONORABLE MIKE WOOD either rcc~e himself and rGqu~r that the ! Presiding Judge of the Statutory Probata Co\li'I.S assi&n another judgGto sit in this cue, or request· thP.I the aforesaid Presldinl! Jud;e misn another Judec to hear this motion. Movanu also request I! that this ColD'! take this motion under coruldoution within thn:e days of hs tiling, or set It for 1111 alternate dale for nellrillg pursuaot to TEX. R. Clv. P. !8a(b). Movanu also request such other and l j ~er relief, whether at law or In equity, to which they may show themselvos )un!y entJUod. .! Respectfully submitled: '! L ...W OFPtCliOP Sus ...N C. NORMAN OANI!~ l SHEA PC j ., ~fii~Zl"''=-' ,, ~ SAN C. Slate Bar No.l$083020 RMAN DAN!BLJ. SI-mA Stalo Bar No. 18163850 9135 Katy Freeway, Suite 100 1928 West Boll Street Houston, Tuu 77024 Ho\\ston, TX 770! 9·4814 713-465·3344 (713) 942·7500 713-468-6243 FIIC!imilc (713) 942-7507 Facsimile ATTORNEYFORPBRRYLEE ATTORNEY POR SPOUSAL OUARDlAN WHATLBY, PROPOSI!D WARD DI!SIONI!B, DAWN JOHNSON WHATLEY NOTICE OE l£J(pECTED PRESENTATION I'.LL PARTIES IN ll'mlRl!ST AND THEIR ATIORNI!YS OP Rl!COIW t.RE HI!REBY NOT!l'IBD THAT MOVANT BXPBCTS niB M01lON TO BB PIUlSl!NTBD TO THE ruoon !HPJ!I! DAYS AFTER THE JIIU)oiQ OP SUCH M01lON UNLESS OTHI!R.WISE. ORDl!RBD BY THE JUDQB . 1'\.IRSUANT TO TBX. R. C!V. P lSA(B), ANY OTHER PAllTV MAY FILE Wlrn mE CLE.IlK AN OPPOSINO OR CONCURJUNO STATE.MENT AT ANY TIMB Bl!FORI! THB MOTION IS HBAl\D, A CERT!PTED COPY ATTEST: .,...,._.,..,F..,;.;.E,.;,.B..;;.1.,:::..2-::=-2=00,_..,8:-:-:- BEVERLY B. KAUFMAN, County Clerk Harrl5 Counry, Texas ~~~ Exhibit E Deputy Page 21 of 29 ANNER. WOOD& 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 64 of 84 Stan Stanart, County Clerk Harris County, Texas .---------·- ---··-·-··------- Appendix 1 NO.l'3S,09S IN /I.E: 11IB PERSON AND ESTATl! § IN Tim PROBATE COURT Ol' § OP PERRY I.EB WHATLEY, § HARRIS COUNTY, T E X A S § A PROPOSBD WARD. § COURT NUMBER (2) TWO AFFIDAVIT Ol DAWEL J. Sfll6 'llll!STATl!OPTEXAS COUNTY 01' HAAAIS BEPORR MB, niB UNOiiltS'IONCO A1.1THORITY, on thl.t day pmonall:y.appu.Rd OANIEI. 1. SHEA, known to me by presentation of h11 Texu Drivcr't I.l~ll.IO 1o be lho perfOn whoso a!gM~ appcw bttlow an4 who, belag by me duly IWlh doyofSeptcmber,l005lo the indivldualso.nd In themiiMu indlcotcd below: Mr. John L. Orcen Faa:dmilc: (713) 660·9921 4888 Loop Ce.ntrlll Dr., Suite 445 Houston, TX 77081·2226 ATTORNEY FOR DA\liN 10HNSON Wl!ATL.BY, SPOUSAL J\PPUCANT Mr. RAy 1. Illac:lc, Jr. HMd Delivery ill Open COl.ll't One Rlni'WIIy, Sullo 1700 Houston, TX 77056-J 997 A'ITORNBY AD !Jl'EM Mr. RoyL. Puller HDnd Deliney in Open Court 1300 Rolllngbtoolc, SullO 608 Baytown, TX 77.Sll·l863 A'ITORNBY 'FOR APPLICANTS ROB'BRT DANIEL WHAn..BY AND JBAN!B ANDERSON -~· A CERTIFIED COPY ATTEST: FEB 1 2 lOQB BEVER.L Y B. KAUFMAN, Counly Clerk Hmi! County, Teus Exhibit E Page 23 of 29 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 66 of 84 Stan Stanart, County Clerk Harris County, Texas Appendix 1 No,Jl5,0?$ INlll: OI'M I INPI\OIATBCOtm.T Pl!UOH AND I!.Sl'ATBOPP!I!UW I Llll! WfL\TLIIY f I NUM!l8!!. TWO OP I . ,. 1 ~ colllr!Y, nw . ! ll!O'tl!iHTQ OVAIR lllptOJIIA ! To 1!11 RodOlo\11• JUdjplofSiid Covll: I COMU IIOW l.r,o lt.u 11'114, ludco '""''" c., Two of ll:m_ c:...,1, .I t ..... ~ IIW"'U llolo IUiloo Ill 'l"•oi, I ...... oaolt~~~ 1114-jucl~llJI, ltt!U .w..,.., mu.11,409, ot """IN .......,"'_,"'' M!lNioW•I'~ ..,,......'f7,....;41urroln•""'"'"••-WI"IUY-!'1W..,..,..,,.,.al~, I IV. c... h .. tloWI!rlooliiU.flo)oM c....-. r- .77Ml rt ~) 6SUJ 16 rl- P. ~) S5UJ61 A CERTIFIED COPY ATTEST: ~f......,.£='8...,..,;1:..,..2.,..:2;;.;;.0Q:::.;8,-,-­ aEVERLY B. KAUfMAN, County Clerk HII!Tls County, Texas Exhibit E ~6', ~ / Deputy Page 29 of 29 ANNE R: WOODS 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 72 of 84 Stan Stanart, County Clerk Harris County, Texas 09/24/2688 15:32 7137552680 Appendix HCAO 1 PAGE 01/0'3 Mike Stafford Harris County Attorney *NOTICE* PLEASE DELIVER THE FOLLOWING PAGES TO: StrSAN NORJ\'IAN F.AX: (281) 605~1822 Re: In re; Mary Olive Calkins; cause no. 3 78,993; Harris County Probate Court No. 2 and In re Dick C. Calkins; cause no 275,123; Iiams County Probate Court No.2. (C.A File No. 08TRL0133). FROM: STEPHEN SMITH TELEPHONE: 713.755.7156 *** TELECOPTER: 7t3.755.8924 PAGES: 8+ TRANSMITTAL SHEET DAn:: SEPTEMBER 24 1 2008 COMM.ENTS: DEPUTY CHUNG GEE'S MOTJON TO QUSAH SUBPOENA AND MonON FOR PROT.ECTIVE ORDER. TliANKYOU, STEPHEN SMITH/ ·•. *TJI1S FACSIMU.T. TRANSMJSSrON COI'.'TATNS CONFIDENTIAL INFORMATION wmr.JJ MAY ALSO H'F. LEGALLY PlUVILEGED A-ND WHICH JSi fN'Jl::NI>ED ONLY POR TfTE US~ O'FTHE ADDRESSEE{S) NAMED BELOW. IF YOU ARE NOT Tm; lNTENtn:D RltClPIENT OF THIS FACSJMJLE 1 OR Tfl't 'eMPLOYEE OR AGEJ'\j RESPON~HII.E FOR DELJVli:RJNG IT TO Tm;: INT'ENDEI> RltC1PIENT1 YOU ARE HEREBY NI')TfFIED THAT ANY ntSSEMINATION Ole C::OPYTNG OF THIS FACSIMILE IS STRJCTLY PROHIBITED, IF VOtl HAVE RECE)VF.n !lJIS FACSJMlU\ rN ~RROR~ PLWii: IMMEDIATEJ.Y NOTIFY US nv Tt.Lil'fiONE AND RF.TtrRN TIIE OIUGINAL FACSJM1Lii: TO US AT TRI!. A!OV'R AfiDRBSS VIA nnr. :POSTAL SERVICE, IF YOU DO NOT RECEIVE ALL OF T.HE PAGES, PLEASE TELEPHONE FRANCES SMITH AT 713.755.1287 RESPECfiVELY. THANK·YOU. Exhibit F Page 1 of 9 1019 Congress, 15'h Floor • Ho~\ston. Texa!l 77002 • Phone; 713~ 7.5.5-.51 ()I • Fax: 713-755-8924 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 73 of 84 Stan Stanart, County Clerk Harris County, Texas 09/24/2008 15:32 7137552680 Appendix 1 HCAO PAGE 02/09 Mike Stafford Harris County Attorney September 24, 2008 Beverly Kaufman County Clerk 201 Caroline, ath Floor, Houston, Texas 77002 Re: 1n re Mary Olive Calkins; cause no. 378,993; Harris County Probate Court No.2 and In re Dick C. Calkins; cause no. 275,123; Harri.s County Probate Court No.2; CA File No. 08 TRL0133 Dear Ms. Kaufman, Enclosed for filing is Depttty Chung Gee's Motion to Quash Subpoena and Motion for Protective Order and Order. Thank you for your courtesy and assistance in this matter. Very truly youra, STEPHENSM Assistant County Attorney (713) 755-7156 cc: Susan Norman Attorney for Richard Stephen Calkins Via Facsimile: (281) 605-1822 Exhibit F Page 2 of 9 l019 Congress, 15'"Fioor • Houston, Texas 77002 • Phone: 713-755-SlOI • Fax: 713-755·8924 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 74 of 84 Stan Stanart, County Clerk Harris County, Texas 09/24/2688 15:32 7f37552588 Appendix 1 HCAO PAGE 83/{39 lN RE: § IN THE PROBAT.E COURT MARY OLIVE CALKINS § NUMBER TWO (2) OF § H~SCOUNTY,TEXAS CAUSE NO. 275,123 JNRE: § IN THE PROBATE COURT DICK C. CALKINS § NUMBER TWO (2) OF TESTAMENTARY TRUSTS § HARRIS COUNTY, TEXAS MOTION TO QUASH SUBPOENA AND MOTrON FOR PROTECfiVE ORDER To the Honorable Judge of Said Court: Comes now Harris CoWlty Sherifrs Deputy Chung Gee, and makes the follo,ving Motion to Quash the subpoena served upon him in this case, and a Motion for Protective Order, and would respectfully show unto the court as follows: I. The attached subpoena, Ex. 1, was served upon Deputy Gee. The subpoena would require him to testify in a recusal hearing in this case set for September 25, 2008. II. Deputy Gee is the bailiff in Harris County Probate Court No. 2, in which the Honorable Mike Wood is the presiding judge. As the bailiff he is entitled to derived judicial immunity. Under the concept of ..derived judicial immunity", the judicial immunity that attaches to judges also attaches to persons who serve as officers of the court or whose activities are intimately associated with tbe judicial process. Dallas Cty. v. Halsey, 87 S.W.3d 552, .554 (Tex. 2002). Edwards v. Pena, 38 S.W.3d 191, 196 (Tex. App.-Corpus Christi 2001, no pet.). When derived judicial immunity applies, a defendant receives the same immunity as a judge. !d. al 554. This Exhibit F Page 3 of 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 75 of 84 Stan Stanart, County Clerk Harris County, Texas 09/24/2008 15:32 7137552580 Appendix 1 HCAO PAGE 84/09 fonn of immunity applies to personnel such as court clerks, bailiffs, court-appointed counsel, and other administrative staff members. City ()j Houst()n v. West Capitol Ftn. Servs., 961 S.W. 2d 687, 690 (Tex. App.~Houston 51 (1 Dist.J 1998, pet. dism'd.). See also Clements v. Barnes, 834 S.W.2d 45, 46 (Tex.l992) (court-appointed bankruptcy trustee had derived judicial immunity); Delcourt v. Silverman, 919 S. W. 2d 777, 783 (Tex. App. -Houston [ 141h Dist.] 1996, writ denied) (court-appointed psychologist had derived judicial immunity). Because he is entitled to derived judicial immunity, the subpoena served upon him should be quashed and a protective order issued. III. In addition, pursuant to Tex. R. Evid. 605, a presiding judge may not testify in that trial as a witness. Pursuant to derived judicial immunity, this rule should also apply to the Court's bailiff. IV. There has been no showing by movant that Deputy Gee's testimony is relevant to this hearing. Therefore the subpoena should be quashed and a protective order issued because his testimony is not relevant to this hearing. v. Wherefore premises considered Deputy Gee requests that the subpoena served on him be quashed and a protective order issued. Exhibit F Page4of9 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 76 of 84 Stan Stanart, County Clerk Harris County, Texas 09/24/21368 15:32 71375525813 Appendix 1 HCAO PAGE 85/139 Respectfully submitted, MIKE STAFFORD Harris C SMITH Assistant County Attorney State Bar No. 18684400 1019 Congress, 15 111 Floor Houston, Texas 77002-1700 Telephone: 7131755-7156 Facsimile: 713/755-9824 ATTORNEYS FOR CHUNG GEE CERTIFICATE OF SERVICE I certify that on September 24, 2008, a true and correct copy of the foregoing was served by certified mailt return receipt requested. or by hand delivery, or by electronic document transfer to att parties and/or counsel of record. £7h sfEPHENSMITH Assistant County Attorney Exhibit F Page 5 of 9 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 77 of 84 Stan Stanart, County Clerk Harris County, Texas 09/24/2008 15:32 7137552580 AppendixHCAO 1 PAGE 05/09 THE STATE OF TEXAS WITNESS SUBPOENA I SUBPOENA DUCES TECUM PURSUANT TO TEXAS RULES OF CIVIL PROCEDURE RULE 176 CAUSE NO 378,993 lNRE: § MARY OLIVE CALKINS lNTHE PROBATE COURT § NUMBER TWO (l} OF § HARRIS COUNTY, TEXAS CAUSE NO. 275,123 IN RE: § IN THE PROBATE COURT DICK C. CALKlNS § NUMBER TWO (2) OF TESTAMENTARY TllUSTS § HARRIS COUNTY, T~XAS To: Any sheriff or constable of the State ofTexas or other person authorized to ser.-e and execute subpoenas as provided in Texas Rule of Civil Procedure 176.5. You are commanded to summon Chung Gee, Deputy Sheriff, Harris County, Texas. 201 Franklin, Probate Court No.2~ Harris County, Texas, to appear ~t 1201 Franklln, Projeet. Court No. 2,. Harris County, Texas,, on September 25, 2008, at 10:00 a.m., to appear before Honorable Olen Underwood, and give testimony in this case on behalf of the Movant and to _remain in attendance from day-to-day until lawfully discharged. Chung Gee, Deputy Sheriff1 Harris County, Texas, is commanded to produce and permit inspection of the following documents or tangible things: The Originals of records as set forth in Exhibit "A"r.mg two (2) copies of each Original produced. Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be detmcd a contempt of tJ,c court from whh:h the subpoena is issued or a district court in the county in which the subpoena is served, and may be ppnlshed by fine or confinement, or both. Tex. R. Clv. P. J76.8(a). I DO NOT FAIL to return this writto the Probate Court No.2 of Harris Cotin1y, Texas, with either the attached officer's return showing the manner of execution or the :wimess1s signed memorandum showing that the witness accepted the subpaena. ISSUED on September 9, 2008. By: S:.., ~ C tJ~r...r..,..J t>/f SUSAN C. NORMAN Texas Bar Number 15083020 P.O. Box 806 Richmond, Texas 77406-0806 · Phone: 281-802-5341 Fax:28l-605-!822 This subpoena was. issued at the request of Movant, Richard Stephen Calkins, whose attorney of record is Susan C. Nonnant P.O. Box 806, Rlehmond, Texas 77406·0806, Phone: 281- 802-5341: Exhibit F Page 6 of 9 1 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 78 of 84 Stan Stanart, County Clerk Harris County, Texas ..-------------------- ----.,...----------,------1 Appendix 1 09/24/2008 15:32 7137552580 HCAO PAGE 137/139 RETURN OF SERVICE OF SUBPOENA I. delivered a copy of this subpoena to Chung Gee, Deputy Sheriff, Harris County, Texas, 201 Franklin, Probate Court No.2, Harris County, Texas, in Harris County, Texas, on t h e _ day of , 2008, at o'clock .m.. and tendered to the witness a. fee [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4074074. Public record. Not legal advice.