Petition for Rehearing — Elicia Bailey, Petitioner v. Jeremy Gasaway

No. 18-8611

IN THE

SUPREME COURT OF THE UNITED STATES

ELICIA BAILEY, PETITIONER

vs.

JEREMY GASAWAY, RESPONDENT

On Petitioner for Writ of Certiorari

To the Texas Court of Appeals, Third District at Austin

Petition for Rehearing

ELICIA M. BAILEY

PRO SE

PO BOX 3002

PFLUGERVILLE, TEXAS 78691

512-693-7458

Received

Ml 1 8 2019

TABLE OF CONTENTS

TABLE OF CONTENTS

1

TABLE OF AUTHORITIES

11

PETITION FOR REHEARING

1

REASONS FOR GRANTING PETITION

1

Does the application that challenges to lack of subject matter

jurisdiction can be raised at any time and cannot be waived have

limitations?..................................... ................................. ............

1

If Texas is the only state in U.S. jurisdiction that has enacted a law

that infringes upon the fundamental right to raise one’s child upon a

family court finding of a criminal offense; is it not violations of the

14th Amendment’s substantive due process and equal protection of the

law clauses?

2

CONCLUSION AND PRAYER

8

CERTIFICATE OF COUNSEL

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TABLE OF AUTHORITIES

Addington v. Texas, 441, U.S. 418, 423 (1979)......................................... ........

3

Allen v City of Sacramento, 183 Cal. Rptr. 3d 654, 673 (Cal. Ct. App. 2015)

6

Curry v. Wilson, 853 S.W.2d, 43 (Tex. Crim. App. 1993)................................

5

Harvey v. State, 97 S.W.3d 162 (Tex. App. 2003)................. ...........................

2

In re A.K.M., No. 09-12-00464-CV (Tex, App. Feb. 27, 2014)......................

7

In re Debs, 158 U.S. 564 (1895)

6

In re Winship, 397, U.S 358, 370 (1970)

3

Karenev v. State, 258 S.W.3dat213......

1

Kontrick v. Ryan, 540 U.S. 443 (2004)............................................. ........

1

Leland v. Oregan, 343, U.S. 790, 802-803 (1952)........................... ..............

3

Mansfield C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382........................ .

1

Nelson v. Schlener, 859 N.W. 2d 288 (2015)..................................... ..............

1

North Cent. F.S., Inc. v. Brown 951 F. Supp. 1383, 1392 (N.D. Iowa 1996)

1

Pacific Nat 7 Ins. Co. v. Transport Ins. Co., 341 F.2d 514, 516 (8th Cir.)....

1

Santoskyv, Kramer, 455 U.S. 745 (1982).............. .........................................

7

United States v. Baucum, 80 F.3d 539, 540 (D.C. Cir. 1996)....... ................

1

United States v. Cotton, 535 U.S. 625, 631-32 (2002)................. ...............

1

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PETITION FOR REHEARING

Pursuant to Supreme Court Rule 44.1, I, Elicia Bailey, respectfully petition

for rehearing of the Court’s decision issued on June 3, 2019 (.Elicia Bailey v. Jeremy

Gasaway, No. 18-8611 (June 3, 2019). I vehemently beseech the Court to grant this

petition and reconsider this case. Pursuant to Supreme Court Rule 44.1, this petition

for rehearing is filed within twenty-five days of this Court’s decision on this case.

REASONS FOR GRANTING THE PETITION

I.

Does the application that challenges to lack of subject matter jurisdiction

can be raised at any time and cannot be waived have limitations?

It has been well established in American Courts across this land that lack of

subject-matter jurisdiction can be raised at any time and cannot be waived1. It is

further established that challenges to the constitutionality of statutes can also be

raised for the first time on appeal when it amounts to an attack on a trial court’s lack

of subject matter jurisdiction.2 Further, it has been well established that a person may

challenge a facially unconstitutional statute for the first time on appeal3. When I filed

Quoting Kontrick v. Ryan, 540 U.S. 443 (2004) “[a] litigant generally may raise a court’s lack of subject-matter

jurisdiction at any time in the same civil action.” See also Mansfield C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382.

See also Nelson v. Schlener, 859 N.W. 2d 288 (2015) opining “defects in subject matter jurisdiction can be raised at

any time and cannot be waived by the parties.” See also Pacific Nat'l Ins. Co. v. Transport Ins. Co., 341 F.2d 514,

516 (8th Cir.) holding “lack of subject matter jurisdiction cannot be waived by the parties or ignored by the court.”

See also North Cent. F.S., Inc.v. Brown 951 F. Supp. 1383, 1392 (N.D. Iowa 1996). See also United States v. Cotton,

535 U.S. 625, 631-32 (2002).

2See United States v. Baucum, 80 F.3d 539, 540 (D.C. Cir. 1996) opining “[i]f a challenge to the constitutionality of

an underlying criminal statute always implicated subject-matter jurisdiction, then federal courts, having an

obligation to address jurisdictional questions sua sponte, would have to assure themselves of a statutes validity as a

threshold matter in any case.”

3See Karenev v. State, 258 S.W.3d at 213 holding in part that “a defendant may raise a constitutional challenge to the

facial validity of a statute for the first time on appeal.”

y

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my petition for writ of certiorari, I . raised both, challenges to the facial

unconstitutionally of Texas Family Code § 261.107(b)4 simultaneously with the trial

court’s lack of subject matter jurisdiction for the first time in this Court. Thus, the

Court’s denial waives of my challenges and does not align with well-established

precedent.

I.

If Texas is the only state in U.S. jurisdiction that has enacted a law that

infringes upon the fundamental right to raise one’s child upon a family

court finding of a criminal offense; is it not violations of the 14th

Amendment’s substantive due process and equal protection of the law

clauses?

Article 1 § 10 of the Texas Constitution is derived from The Fifth Amendment

of the United States Constitution providing that “no person shall be held to answer

for a criminal offense, unless on an indictment of a grand jury.”5 The standard for

finding guilt, beyond a reasonable doubt, has remained the same throughout history

4Tex. Fam. Code § 261.107(b) states “[a] finding by a court in a suit affecting the parent-child relationship that a

report made under this chapter before or during the suit was false or lacking factual foundation may be grounds for

the court to modify art order providing for possession of or access, to the child who was the subject of the report by

restricting further access to the child by the person who made the report.”

5See Harvey v. State, 97 S.W.3d 162 (Tex. App. 2003) Harvey anonymously filed a report of child abuse on a former

coworker after being terminated. After child protective services closed the case, they forwarded it to the local district

attorney. This later resulted in a grand jury misdemeanor indictment against Harvey for making a false report of

child abuse. After a mistrial, a “second jury found ... Harvey guilty of making a false report of child abuse and

assessed the maximum sentence, confinement for one year and a $4000 fine.” The 14th District Court of Appeals of

Texas affirmed the judgment.

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for criminal offenses6. How then is the state of Texas, only, authorized to enact a

law that changes the subject matter jurisdiction of criminal offenses and the

standard of guilt7?

Texas Family Code § 261.107(b) is unconstitutional; as it violates

substantive due process and equal protection of the laws. If no person shall be held

to answer for a criminal offense, unless on an indictment of a grand jury; Is it not

unconstitutional to hold a person to answer for a criminal offense in a court with

limited jurisdiction over family law matters and without indictment?

While parents involved in custody disputes are held under the same law,

should they file a report of abuse, others are not. There is no equality in this statute.

In fact, out of the 52 U.S. states and the 5 U.S. territories, it is a criminal offense to

fail to report child abuse within all borders of the U.S. 21 of the 57 do not address

penalties for filing a false report, while 5 of the 57 address penalties under family

6See Leland v. Oregan, 343, U.S. 790, 802-803 (1952) stating “This notion [that the government must prove the

elements of a criminal case beyond a reasonable doubt] basic in our law and rightly one of the boasts of a free

society - is a requirement and safeguard of due process of law in the historic, procedural content of‘due process. »»>

7See Addington v. Texas, 441, U.S. 418, 423 (1979); (quoting In re Winship, 397, U.S 358, 370 (1970) Justice Harlan

concurring) “[t]he function of a standard of proof, as that concept is embodied in the Due Process Clause and in the

realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should

have in the correctness of factual conclusions for a particular type of adjudication.’”

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law. California8, Florida9, Louisiana10 and South Carolina11 are the only other four

states that address penalties for filing a false report under domestic law. However,

none of the penalties involve or include separating the parent and the child, all

penalties are civil, and that is monetary12.

Texas is the only state that has a penalty that infringes upon the right for one

to raise and have possession their children based on a finding of a criminal offense

in a family law court. This is clearly a violation of the equal protection of the laws

and substantive due process clauses of the 14th Amendment; as the law is only

applied in Texas and it denies a person the right to be found guilty beyond a

reasonable doubt before infringing upon what is considered life, liberty and/or

property.

This case arose with respondent filing an affidavit alleging I filed a false

report of child abuse against him. Before making a determination that the report

8In California Family Code, allegations of a false report of child abuse are investigated by local law enforcement

and/or the local welfare services agency and results are reported to the court before a family court makes a finding

that a person made a false report.

9In Florida Proceeding Relating to Children, a department may discontinue investigation and refer a report to the

local law enforcement agency if they find during their investigation that a report was false. Local law enforcement

must first find sufficient evidence for prosecution. No civil liability concerning the parent and the child is imposed.

10Under Louisiana Children’s Code a civil penalty of no more than $500 or imprisonment for no more than 6 months

or both penalties may be applied to a person who is found to have filed a false report of child abuse.

“Under South Carolina Children’s Code, a family court may find by probable cause or conviction that a report of

child abuse was false and impose monetary civil penalties for recovery of civil costs and attorney’s fees.

“Texas Family Code § 153.013(a) If a party to a pending suit affecting the parent-child relationship makes a report

alleging child abuse by another party to the suit that the reporting party knows lacks factual foundation, the court

shall deem the report to be a knowingly false report, (b) Evidence of a false report of child abuse is admissible in a'

suit between the involved parties regarding the terms of conservatorship of a child, (c) If the court makes a finding

under Subsection (a), the court shall impose a civil penalty not to exceed $500.

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was false, the trial court should have referred the case to the local law enforcement

agency, since the allegation involved a criminal offense13. If a person, besides

myself would have filed a report of abuse on respondent and that person was

subsequently accused of filing a false report, their alleged criminal offense would

have been tried in a criminal court and their guilt would have had to be proven

beyond a reasonable doubt to support a conviction. Even if found guilty beyond a

reasonable doubt in a criminal court, that person would not risk the stigma of

indefinite termination of their parental rights of possession and access to their

children.

See Harvey v. State. Today, as it pertains to her case, Harvey is a free woman

who, if any children at all, has no stigma that impedes her from being an integral

part of their lives and raising them. Because the report she filed did not involve a

child of her own, she was not affected by section 261.107(b) of the Texas Family

Code, yet, she was found guilty of filing a false report of child abuse beyond a

reasonable doubt in a criminal court.

If Harvey has children, she has already been found guilty of filing a false

report of child abuse, but her conviction did not affect her ability to raise and

maintain possession of her children because the finding of guilt was not in a family

13See Curry v. Wilson, 853 S.W.2d, 43 (Tex. Crim. App. 1993) opining “[disputes which arise over the enforcement

of statutes governed by the Texas Code of Criminal Procedure, and which arise as a result of or incident to a

criminal prosecution, are criminal law matters.”

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law court. How then is there any equality in restricting a parent’s access to their

own children upon a finding of guilt in a civil court but there is no such penalty for

people who are found guilty in a criminal court for the same criminal offense14.

While the actions, if true and proven, are the same, the penalties are far harsher if

there is a finding of guilt in a family law court as opposed to a criminal law court;

as they interfere with the bonding of parent-child relationships15.

The Sixth and Fourteenth Amendments of the U.S. Constitution reiterate the

mandatory requirements for due process. If a person is held to answer for a criminal

offense in a family court have not that person’s right to substantive due process been

violated? As family courts do not have jurisdiction over matters that involve criminal

offenses16 but, in this case, and as prescribed by local law, the trial court has

jurisdiction over family law matters and matters of the justice court17. Should not all

persons accused of committing a criminal offense, as defined as such18, be afforded

14See In re Debs, 158 U.S. 564 (1895) holding that “[a]n assault with intent to kill may be punished criminally,

under an indictment therefor, or will support a civil action for damages, and the same is true of all other offences which cause injury to person or property.”

15See Allen v City of Sacramento, 183 Cal. Rptr. 3d 654, 673 (Cal. Ct. App. 2015) holding “equal protection is

violated if the law is applied in a manner that discriminates against a particular group.”

16See Id In re Debs holding that “a chancellor has no criminal jurisdiction.”

17Texas Government Code Sec. 25.2482(a) In addition to the jurisdiction provided by Section 25.0003 and other law,

a county court at law in Williamson County has concurrent jurisdiction with the district court in family law cases

and proceedings, (b) A county court at law has concurrent jurisdiction with the justice court in all criminal matters

prescribed by law for justice courts. This subsection does not deny the right of appeal to a county court at law from a

justice court in cases in which the right of appeal to the county court exists.

18Texas Penal Code § 37.08 (a) A person comm its an offense if, with intent to deceive, he knowingly makes a false

statement that is material to a criminal investigation and makes the statement to: (1) a peace office or federal special

investigator conducting the investigations; or (2) any employee of a law enforcement agency that is authorized by

the agency to conduct the investigation and that the actor knows is conducting the investigation, (c) An offense

. under this section is a Class B misdemeanor.

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due process and innocent until proven guilty beyond a reasonable doubt in a criminal

court when life, liberty .or property is at stake?

On multiple occasions this Court has opined that the right to raise one’s child

is so fundamental that interference must be proven that the parent or parents whose

interests is/are at stake are unfit, at least by clear and convincing evidence19.

Before, I filed the report of sexual abuse on respondent, I was never accused or

deemed to be an unfit parent. Should not clear and convincing evidence show a

history of unfitness or is it plausible to assume that a person suddenly becomes an

unfit parent only after.they file a report of child abuse?

There are only two instances in which Tex. Fam. Code § 261.107(b) has

arisen in appellate court history, one being this case, and the other being In re

A.K.M., No. 09-12-00464-CV (Tex. App. Feb. 27, 2014). But even in the case of In

re A.K.M. the trial court made reasonable efforts to make contact with and

interview the detectives and the child who allegedly made an outcry of abuse

before making a determination of whether the report filed was false. That is, the

court made its finding by at least clear and convincing evidence. In this case, the

trial made no such efforts. Nor did the trial court have even a speck of evidence to

19See Santosky v, Kramer, 455 U.S. 745 (1982) holding ‘[bjefore a State may sever completely and irrevocably the

rights of parents in their natural child, due process requires that the State support its allegations by at least clear and

convincing evidence. A “clear and convincing evidence” standard adequately conveys to the factfinder the level of

subjective certainty about his factual conclusions necessary to satisfy due process.

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support its finding that I filed a false report of child abuse. In fact, the evidence

leaned heavily on the contrary.

Conclusion and Prayer

What is written on paper can defame and assassinate a person’s character

while being completely inaccurate. It can create the illusion or appearance that a

person is someone they are not. It is systemic discrimination as Texas Family Code

§ 261.107(b) is. No human being should suffer the humiliation of being labeled a

perjurer without the allegation, at the very least, being proven beyond a reasonable

doubt in a Criminal court. Further, no human being should ever suffer the stigma of

losing access to their children, especially upon a finding of a guilt of a criminal

offense, but in a civil court. The trial court found that the report I filed was false

without evidence to support its finding. Thus, the standard used to make the

finding was even lesser than that of the lowest standard, preponderance of the

evidence. What is worse is that, because of erroneous findings, many child victims

will remain in the custody of their abusers without protection that is due under the

color of law if this law remains in effect. I, Elicia Bailey, respectfully request that

this Court grant this petition for rehearing.

Respectfully Submitted on this 15th Day of July_2019,

<^Etfcia Bailed

Vv>^~-~~~^Pro Se

(512) 69p74&

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CERTIFICATE OF COUNSEL

I hereby certify that this petition for rehearing is presented in good faith and

not for delay. The grounds are limited to intervening circumstances of substantial

or controlling effect or to other substantial grounds not previously presented.

[9]