Petition — Ratcliff v. Estelle

October Term, 1977

wrrrerr 2 " 1 594

ELIJAH W. RATCLIFF,

Petitioner

vs.

WILLIAM J. ESTELLE, JR., Director of the

Texas Department of Corrections,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

ELI;AH W. RATCLIFF,

Petitioner, Pro Se

P. O. Box 862,

Livingston, Texas 77351

Ph. 713—327-4948

a

Murrelle Printing Co., Law Printers, Box 100, Sayre, Pa. 18840

TABLE OF CONTENTS

PAGE

eS de Faddantcceckaeddcdvices 1

EE, SSE eds ohn d-c bdebaue cetskn dkueei 3

I EE, wc coco cdanceceenwecese 4

Constitutional and Statutory Provisions Involved . . 5

ke 7

Grounds Sustaining Federal Questions:

Summary of Argument .................. 9

Argument:

Argument—Discussion of Facts and Authori-

Pt dbl snot asses kesbin © ca eet « 11

Argument—Discussion of Facts and Authori-

Ent hbeokk dddne bcdees bdkeuuee nes 12

Argument—Discussion of Facts and Authori-

PSG beh nd hecn kanes nya ncheece dus 13

Argument—Discussion of Facts and Authori-

PV CUT oad ieies Chins sn ibda boo 14

Argument—Discussion of Facts and Authori-

BE WT NBN oekekwbeeckdesdchescaccae 16

Argument—Discussion of Facts and Authori-

St Wl bed bi Weeds bid eedweeictebads 17

Argument—Discussion of Facts and Authori-

EY Cav eNGad ere c6 Wels Acs cchcec, 21

a RR IE Ry gle aM Alaa ae ie OD 22

Certificate of Service ........................ 23

Appendix A:

Final Judgment, U.S. District Court ............ 24

Memorandum and Order, Jan. 20, 1978 ........ 26

Memorandum and Order, Dec. 19, 1977 ........ 28

Memorandum and Order, Court of Appeals ...... 32

Appendix B:

I rs ee ee ad 35

SCHEDULE OF ABBREVIATIONS FOR RECORD

Reference to Record - “ Abbreviations

Appendix of Record ................ Apx.

Appendix to Appellant’s Brief ........ Apx./A, B or C

Court of Criminal Appeals of Texas ....Ct. Cr. Ap. Tx.

ne No.

PD. situ ia abide ied sis cba ceiactes p

ee ee pp

Statement of Facts ..............00:; SF

Transcript of Origin in State Court ..... Tr.

Transcript of Origin in U.S. District Court

Tr./US DC

TABLE OF CITATIONS

Cases CITED:

Akins v. Texas, 325 U.S. 398 IN phate 13

Alexander v. Louisiana, 405 U.S. 625 (1972)

13, 14, 18

Anderson v. O’Bryant, 3 S.W.2d 842 (1928) .. 15, 16, 18

ii

Baggett v. Bullitt, 377 U.S. 360 (1964) ........ 13, 20

Beard v. State, 287 S.W.2d 667 (1956) ........ 13, 16

Beckman v. Walter Kidde & Co., 316 F. Supp. 1321

Pe AE PAE RT ee eat ee 12

Bledsoe v. Yarborough, 412 S.W.2d 222 (1967) .. 16

Bouie v. City of Columbia, 378 U.S. 347 (1964) .. 12

Bruce v. Beto, 96 F.2d 212 (1968) ............ 11

Burris v. State, 40 S.W. 284 (1898) ............ 18

Capitol Hotel Company v. Rittenberry, 41 S.W.2d

Sage Reigate ee alae 19

Cox v. Louisiana, 379 U.S. 536 (1965) ......... 21

Douglas v. Buder, 412 U.S. 430 (1973) ........ 12

Eason v. State, 320 S.W.2d 11 (1959) ......... 16

Eubanks v. Louisiana, 356 U.S. 584 (1958) .... 18

Fay v. Noia, 372 U.S. 391 (1963) ............ 21

Fultz v. First National Bank, 380 S.W.2d 894

BU Die eh GE UNUA CA TF 21

Hall v. State, 219 S.W.2d 475 (1949) .......... 18

Hamilton v. Newburg, 412 S.W.2d 801 (1967) .. 16

Haines v. Kerner, 405 U.S. 948 (1972) ........ 11

Hesbrook v. State, 194 S.W.2d 260 (1946) ... 10, 12, 13

Hill v. Texas, 316 U.S. 400 DY «¢iweavebocs 13

Johnson v. Mississippi, 405 U.S. 212 (1971) .... 21

Jordan v. Massachusetts, 225 U.S. 167 (1912) .. 21

Kemp v. Pate, 359 F.2d 749 ae 11

Malphus v. Home Savings Bank of City of Albany,

254 N.Y.S.2d 980 (1965) .............. 13

May v. State, 34 S.W.2d 594 (1930) .......... 18

Miller v. Winn, 28 S.W.2d 578 (1930) ........ 21

Modine Manufacturing Co. v. Northeast Indepen-

dent School District, 503 S.W.2d 833 (1974) 16

Muncy v. Johnston, 402 S.W.2d 525 (1966) .... 19

Norris v. Alabama, 294 U.S. 587 (1935) ....13, 14,18

O’Beirne v. State, 365 S.W.2d 787 (1963) ...... 19

Paxton v. Spencer, 503 S.W.2d 637 (1973) .... 19

Price v. Johnson, 334 U.S. 266 (1948) ........ 11

Pryor v. Beto, 460 F.2d 307 (1972) ........... 11,21

Ratcliff v. Texas, 504 S.W.2d' 883 (1974) ...... 8

Tarkington v. Brunett, 51 S.W. 274 (1899) ..10, 15, 16

Younger v. Harris, 401 U.S. 37 (1971) ......... 13, 20

Webb v. State, 7 S.W.2d 562 (1928) .......... 19

STATUTORY AUTHORITIES:

Title 28, United States Code, §1254 ............ 3

Title 28, United States Code, §1651 ............ 5,22

Title 28, United States Code, §1652 ............ 5,22

Title 28, United States Code, §§1981-1995, inclu-

BG vi ccéccessduncescesasecusenue me

Title 28, United States Code, §2241 ....... 5,7, 11,22

Title 28, United States Code, §2242 ........ 5,7, 11,22

Title 28, United States Code, §2243 ........ 5,7, 11,22

Title 28, United States Code, §§2244-2254, inclu-

GD ociwvccccesétisteanwiiss eee -&,

Title 42, United States Code, §1981 ...... 9, 10, . .

Title 42, United States Code, §1982 ...... 9, 10, a re

Title 42, United States Code, §1983 ...... 9, 10, 11, -

15,1

Title 42, United States Code, §§1984-1995, inclu-

HD ccc cucccnevsdocaceeeeter ee 7,10

Vernon’s Ann. C.C.P., Art. 5.01 ............ 6, 10, 17

Vernon's Ann. C.C.P., Art. 11.01-11.64, inclu-

CF ccc csvecsbostéisbevewseein ele 3,7,14

iv

Vernon’s Ann. C.C.P., Art. 11.59 .............. 1}

Vernon’s Ann. C.C.P., Art. 11.60-11.64, inclusive 21

Vernon’s Ann. C.C.P., Art. 19.27 .............. 14,18

Vernon’s Ann. C.C.P., Art. 35.23 .............. 18, 20

Vernon’s Ann. C.C.P., Art. 39.13 .............. 20

Vernon’s Ann. P.C., Art. 1410 ................ 6,12

Vernon’s Ann. P.C., Art. 1413 ................ 6,12

Vernon’s Ann. P.C., Art. 37.09 ......... 15, 19, 20, 21

Vernon’s Ann. P.C., Art. 37.10 ......... 15, 19, 20, 1

a 6, 15

V.TCA., Bus. @C., 63606 .................. 6,15

ee 6,15

V.EAA., Bus. & C., 03.928 ............6-.... 6,15

V.T.C.A., Bus. & C., §3.409 ....... 6, 10, 13, 15, 17, 21

VT.C.A., Bus. & C., §3.417 ....... 6, 10, 13, 15, 17, 21

VT.C.A., Bus. & C., §4.303 ....... 6, 10, 13, 15, 17, 21

V.T.C.A., Bus. & C., §4.403 ....... 6, 10, 13, 15, 17, 21

CONSTITUTIONAL AUTHORITIES:

United States Code, Const. Amend. V . .3,5, 7,9, 11, 12,

15, 16, 17, 21, 22

United States Code, Const. Amend. VIII . .3,5, 7,9, 12,

15, 16, 17, 21, 22

United States Code, Const. Amend. XIII . .3,5, 7, 12, 16,

17,21, 22

United States Code, Const. Amend. XIV . »"S SA TP

12, 15, 16, 17, 21, 22

United States Code, Const. Amend. XV . .3,5, 7, 12, 16,

17,21, 22

RULEs:

Federal Rules Civ. Proc., Rule 33, 28 U.S.C. .... y

Federal Rules Civ. Proc., Rule 36, 28 U.S.C. ....11, 12

Rules of the Supreme Court of the United States:

Er R

EE a he ee eT ee ee 8

RPE aE ee, ae ee 3,8

Pn 2 «cee ce Gh dlls dade oldeds embanct 3,8

gg ARR ae ee ee. ae ee 3,8

Vernon’s Ann. Civ. St., Art. 3713, Rules 5 and 6

6, 15, 16

Vernon’s Ann. Rules Civ. Proc., Rule 168 ...... i)

Vernon’s Ann. Rules Civ. Proc., Rule 185 ...... 16, 17

TEXTUAL AUTHORITIES:

Lon L. Fuller, Basic Contract Law (1947) ...... 20

S § F 5 Fey ar ern 21

Opinions Below

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

ELIJAH W. RATCLIFF,

Petitioner

vs.

WILLIAM J. ESTELLE, JR., Director of the Texas De-

partment of Corrections,

Respondent

PETITION FOR WRIT OF CERTIORARI

To the Honorable Warren E. Burger, Chief Justice, and the

Justices of the Supreme Court of the United States:

OPINIONS BELOW

The decisions of the courts below are twofold in

nature as rendered by the United States District Court for

the Southern District of Texas under dockets numbered

CA No. 75-H-1945 and CA No. H-77-1542, wherein

Petitioner was Plaintiff and Respondent was Defendant.

Both final judgments were appealed to the United States

Court of Appeals, Fifth Circuit, wherein the earlier pro-

Opinions Below

ceeding was docketed No. 77-8424 and the latter was

docketed No. 78-8093. Petitioner’s motion to consolidate

the proceedings was granted by such Court of Appeals

which refused the ultimate procedural and resulting sub-

stantive relief sought in the subject applications for certifi-

cates of probable cause necessitating this appeal. Copies

of the unreported final judgment in both trial proceedings

as well as the order of the United States Court of Appeals,

Fifth Circuit, substantively declining an application for

certificate of probable cause are attached as Appendix A.

Jurisdiction

JURISDICTION

The Order of the United States Court of Appeals for

the Fifth Circuit giving rise to this Petition was rendered

and entered on the 27th day of March, A. D., 1978, and

no motion for rehearing or for an extension of time is

relevant hereto.

The subject habeas corpus action under Vernon’s

Ann. C.C.P., Art. 11.01-11.64, inclusive, and Title 28.

United States Code, Sections 1981-1995, inclusive, in

addition to United States Code, Const., Art 1, Section 9 (2)

and (3); United States Code, Const., Art. 11, Section 2 (1)

and United States Code, Const., Amend. V, VIII, XIII,

XIV and XV.

Jurisdiction of the Supreme Court of the United States

to entertain and grant the relief sought by Petitioner is fur-

ther provided by Title 28, United States Code, Section

1254(1), consistent with Title 28, United States Code,

Section 2101 (c), and U.S. Sup. Ct. Rules 21, 22 and 23.

28 U.S.C.

Questions Presented

QUESTIONS PRESENTED

I. Petitioner’s exhaustion of Staic remedies was

completed prior to filing each of the subject applications

for writs of habeas corpus in the United States District

Court.

Il. The statutory authority upon which the State

of Texas relied for the subject conviction was non-existent

cr unconstitutionally vague under federal due process

standards.

Ill. The systematic exclusion of Negro citizens from

the material Polk County, Texas Grand Jury resulted in

a fatally defective indictment against Petitioner.

IV. The trial Court abused its discretion surpassing

constitutional dimensions in refusing to routinely permit

Petitioner’s tax records to raise a jury issue on failure of

consideration.

V. The trial Court abused its discretion unconstitu-

tionally in permitting the jury to consider an unrelated and

distinguished transaction wherein Petitioner exercised

rights of a payor on a negotiable instrument.

VI. The subject proceedings were calculated

through official neglect and disregard or design and intent

to deprive Petitioner of due process globally.

VII. Petitioner’s conviction in the District Court of

Montgomery County, Texas, No. 11,064, should be voided,

his illegal detention and restraint upon liberty by respon-

dent forbiuden and his rights as a citizen declared.

. . 5

Constitutional and Statutory Provisions Involved

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The most proximal constitutional authorities perti-

nent to Petitioner’s position are United States Code, Const.

Amend. V, VIII, XIII, XIV and XV.

Also, underlying the authority for the remedies pre-

sented by Petitioner are United States Code, Const. Art 1,

Section 9(2) and (3), and United States Code, Const.

Art. III, Section 2(1), and Vernon’s Ann. St. Const., Art.

1, Section 19.

The federal jurisdictional grounds invoked by Peti-

tioner are set forth at Title 28, United States Code, Sec-

tions 2241-2254, inclusive, and Title 42, United States

Code, Sections 1981-1995, inclusive.

Certain elements of Petitioner’s cause of action have

been raised in the lower courts pursuant to Title 28,

United States Code, Sections 1343, 1443, 1446, 1447 (d),

1449, 1651 and 1652. However, as such provisions in

addition to United States Code, Const. Art. 1, Section 9 (2)

and (3), and Art. III Section 2(1), as well as Vernon’s

Ann. St. Const., Art. 1, Section 19, are either not con-

tested or not currently in dispute relevant to the jurisdic-

tion of this Court, no quotation of such provisions is in-

cluded as a part of this Petition.

Each of the other designated provisions, however, is

attached at Appendix B to expedite space and brevity in

the Petition.

6

Constitutional and Statutory Provisions Involved

State authorities of precedential value upon which

Petitioner relies are V.T.C.A., Bus. & C., §§2.601, 2.606,

2.608, 2.721, 3.409, 3.417, 4.303 and 4.403; and Vernon’s

Ann, Civ. St., Art. 3713, Rules 5 and 6. The authorities

upon which the State of Texas relied were Vernon’s Ann.

P.C., Art. 1410 and 1413, each of which is set forth in its

entirety at Appendix B.

It is noteworthy that Vernon’s Ann. C.C.P., Art. 5.01,

was instrumental in shaping the line of precedent which

influenced Petitioner’s remedy herein, but as such pro-

vision is currently repealed, it is not set forth verbatim in

the petition.

~t

Statement of Case

STATEMENT OF CASE

The final judgment of the United States District

Court, CA No. 75-H-1945, wherein Petitioner, Elijah W.

Ratcliff, makes application for a writ of habeas corpus

is attached hereto as an Appendix.

The State action arises under Vernon’s Ann. C.C.P.,

Art. 11.01-11.64, inclusive, and the federal action is by

virtue of Title 28, United States Code, §§2241-2254, in-

clusive, and is further supported by Title 42, United

States Code, §§1981-1995, inclusive, in addition to United

States Code, Const., Amend. V, VIII, XIII, XIV and XV,

as appears more elaborately hereinafter.

Petitioner is illegally restrained in his liberty by Re-

spondent, William J. Estelle, Jr., Director of the Texas

Department of Corrections, by virtue of a judgment of the

District Court of Montgomery County, Texas, No. 11,-

064, directing Appellant to serve six (6) years in the

Texas Department of Corrections on a charge of theft.

Sentence under the described judgment was pronounced

under date of July 26, 1972 (Tr. Item 61, pp. 150-151),

in response to a verdict of guilty upon a plea of not

guilty before a jury under the Honorable J. S. Holleman,

Presiding Judge, who refused motions for judgment upon

the evidence (No. 47,600, SF pp. 66-69, 133-135), for a

new trial (No. 47,600, Tr. Item 63, pp. 156-161) and in

arrest of judgment (No. 47,600, Tr. Item 62, pp. 152-155),

all timely presented.

~ a *

we :

Statement of Case

The described judgment and deli! -rations were timely

appealed to the Court of Criminal Appeals of Texas and

affirmed. Ratcliff v. Texas, 504 S.W. 2d 883 (1974).

A timely appeal was then perfected to the Supreme

Court of the United States, but officials of the Texas De-

partment of Corrections systematically precluded prepara-

tion of a timely jurisdictional statement for filing pursu-

ant to U. S. Supreme Court Rules 13 and 15 or 21, 22 and

23, 28 U.S.C. (See No. 75-208, October Term, 1975.)

Appellant was assigned No. 238244 by the Texas De-

partment of Corrections and finally issued a Certificate

of Parole, No. 77 0400, by the Board of Pardons and Pa-

roles of the State of Texas, effective February 8, 1977,

resulting in the current state of restraint complained of

herein.

The issues as set forth at the Questions Presented

herein were presented in habeas corpus pioceedings, in

addition to direct appeal, in the State and Federal Courts

in exhaustion of State trial Court and then appellate rem-

edies followed by Federal trial and appellate remedies

(See No. 4624, Court of Criminal Appeals of Texas; No.

CA-75-H-1945, and No. CA-H-77-1542, United States Dis-

trict Court, Southern District of Texas; and No. 77-8424

and No. 78-8093, United States Court of Appeals for the

Fifth Circuit) .

Summary of Argument

GROUNDS SUSTAINING FEDERAL QUESTIONS

SUMMARY OF ARGUMENT

Each stage of the subject proceeding before the State

judiciary was tainted by fraud, neglect and a conspiracy

to deprive Petitioner of due process. Title 42, United

States Code, §$1981, 1982 and 1983; United State Code,

Const., Amend. V, VIII and XIV.

The initial deprivation consisted of the systematic

exclusion of Petitioner’s peers, Negro citizens, from the

Polk County, Texas Grand Jury relevant to the indictment.

and the State courts, with the notorious abstention of the

United States District Court, have schematically avoided

all procedures, including discovery, to effectively estab-

lish such illegalities through competent evidence.

After the indictment was returned, discovery efforts

were ignored in the District Court of Polk County, Texas,

No. 9432, and the United States District Court, Cr. No.

71-H-228, remanded the proceeding to State court after

discovery efforts were in motion but before the time to re-

spond deadline transpired. Federal Rules Civ. Proc., Rule

33, 28 U.S.C.; Vernon’s Ann. Rules Civ. Proc., Rule 168.

Other pre-trial procedures in the State courts, in-

cluding motions for change of venue, were similarly re-

duced to jest. United States Code, Const., Amend. V and

XIV.

10

Summary of Argument

During the trial stage, the mockery of justice was con-

tinued with perjured testimony by the complaining witness

and the trial Court’s refusal to allow Petitioner to raise

the issue of failure of consideration with respect to the

check which was the alleged medium of theft. V.T.C.A..,

Bus. & C., §§3.409, 3.417, 4.303 and 4.403; Vernon’s

Ann. P.C., Art. 5.01.

Honoring well established precedents in Texas would

have effected a reversal of the trial Court’s judgment in

spite of the attending fraud and deception, but such au-

thorities and precedents were not addressed by the appei-

late Court. Tarkington v. Brunett, 51 S.W. 274 (1899);

Hesbrook v. State, 194 S.W. 2d 260 (1946): Title 42,

United States Code, §§ 1981-1995, inclusive.

Argument

ARGUMENT

Argument—Discussion of Facts and Authorities I

The issues raised by Petitioner’s Application for Writ

of Habeas Corpus (Tr./US DC, 9/4/75, unnumbered

docket Item) were clearly exhausted in efforts transpiring

before the filing of such application in the United States

Districi Court.

The controlling authorities hold consistently that an

applicant for habeas corpus relief need only exhaust his

State remedies on one ocassion. Kemp v. Pate, 359 F.2d

749 (1966) ; Pryor v. Beto, 460 F.2d 307 (5th Cir. 1972).

Following exhaustion of State remedies, the principle of

Haines v. Kerner, 405 U.S. 948 (1972); 30 L.E.2d 819,

92 S.Ct. 963; and general precedents on the habeas cor-

pus remedy prevail. Title 28, United States Code, §§2241,

2242 and 2243; United States Code, Const., Amend.

V and XIV; Bruce v. Beto, 96 F.2d 212 (1968): Price

v. Johnson, 334 U.S. 266 (1948) , 92 L.E. 1356, 68 S.Ct.

1049.

Petitioner’s State remedies were so clearly exhausted

establishing the irregularities of State action that Respon-

dent refused to respond to Petitioner’s request for admis-

sions served on the 19th day of November, A.D., 1976

(Tr./US DC Item 21). Federal Rules Civ. Proc., Rule

36, 28 U.S.C.; Title 42, United States Code, $§1981, 1982

and 1983.

12

Argument

Such refusal to respond at any point or object in any

manner to the request for admissions covering a substan-

tial period of time as filed with the Clerk and served on

the Attorney of Record for Respondent in the United States

District Court operated to admit the truth of the matters

asserted in such request for admissions, several of which

facts are crucial to Petitioner’s cause of action (Tr./US

DC Item 21). Federal Rules Civ. Proc., Rule 36, 28

U.S.C.; United States Code, Const., Amend. V, VIII,

XIII, XIV and XV; Beckman v. Walter Kidde & Co.. 316

F. Supp. 1321 (1970), affirmed 451 F.2d 593, certiorari

denied 408 U.S. 922.

Under docket number CA No. H-77-1542, the United

States District Court did not determine that State remedies

had been exhausted as it had suggested under docket num-

ber CA No. 75-H-1945, and Respondent did not raise such

issue in the second appeal, as it had in the earlier proceed-

ing, so reference to such point in this petition for writ of

certiorari is merely to foster clarity and coherence.

Argument—Discussion of Facts and Authorities II

The vagueness of the subject legislation as applied to

Petitioner is the basic error of the case. Vernon’s Ann.

P.C., Arts. 1410 and 1413; Bouie v. City of Columbia,

378 U.S. 347 (1964), 12 L.E.2d 894, 84 S.Ct. 1697;

Douglas v. Buder, 412 U.S. 430 (1973), 37 L.E.2d 52,

93 S.Ct. 2199. Due process requires that a criminal stat-

ute give fair warning of the conduct it prohibits, and the

highest court of a State cannot circumvent the legislature

und achieve such a result by judicial construction. Hes-

13

Argument

brook v. State, 194 S.W. 2d 260 (1946): Beard v. State,

287 S.W. 2d 667 (1956); V.T.C.A., Bus. & C., §§3.409,

3.417, 4.303 and 4.403; Title 42, United States Code, §§

1981, 1982 and 1983; Malphus v. Home Savings Bank of

City of Albany, 254 N.Y.S. 2d 980 (1965); Baggett v.

Buliitt, 377 U.S. 360 (1964), 12 L.E.2d 377, 84 S.Ct. 131

(1965). Younger v. Harris, 401 U.S. 37 (1971), 27

L.E.2d 669, 91 S.Ct. 746.

Argument—Discussion of Facts and Authorities III

The indictment in question was returned against

Petitioner by a racially discriminatory Grand Jury in the

District Court of Polk County, Texas, No. 9432 (Tr.

Item 4, pp. 5-6). The issue of systematic exclusion of

Negroes from the Polk County, Texas Grand Jury was

raised initially by pre-trial petition filed while in the Dis-

trict Court of Polk County, Texas, No. 9432, but Peti-

tioner’s efforts to establish Grand Jury discrimination by

specific interrogatories were stifled (Tr. Item 19, pp. 52-

63; also, Tr. Item 35, p. 97, SF pp. 1-2). Norris v.

Alabama, 294 U.S. 587 (1935), 79 L.E. 1074, 55 S.Ct.

379; Alexander v. Louisiana, 405 U.S. 625 (1972), 31

L.E.2d 536, 92 S.Ct. 1221.

The described systematic exclusion of Petitioner's

peers as practiced and sanctioned by the material courts

denied him the essential elements of a fair trial. Vernon's

Ann. C.C.P., Art. 19.27; Title 42, United States Code,

§$1981, 1982 and 1983; Hill v. Texas, 316 U.S. 400

(1944), 86 L.E. 1559, 62 S.Ct. 1159; Akins v. Texas,

325 U.S. 398 (1945), 89 L.E. 1692, 16 S.Ct. 1276.

14

Argument

The issue of Grand Jury discrimination could not be

raised as prescribed by Vernon’s Ann. C.C.P., Art. 19.27,

for the material judiciary did not at the current point in his-

tory permit Negroes to engage meaningfully and reliably

in any stage of the grand jury process.

In addition to pre-trial efforts to raise the grand jury

systematic exclusion issue, it was raised through an ap-

plication for writ of habeas corpus purporting to be in be-

half of Petitioner by one Attorney Raymond Jorday of

2521 Riverside Drive in Houston, Texas 77004, without

advance consultation or discussion with Petitioner regard-

ing such application (Application for Writ of Habeas Cor-

pus of 1974, No. 4624, Tr. Item 2, pp. 2-8). Vernon’s

Ann. C.C.P., Arts. 11.01-11.64.

Much of the contents of the described application is

inconsistent with fact and Petitioner’s authorized con-

tentions. However, each of its paragraphs referring to

Grand Jury discrimination is substantively correct and

adoptable by Petitioner. Norris v. Alabama, 294 U.S.

587 (1935), 79 L.E. 1074, 55 S.Ct. 579; Alexander vy.

Louisiana, 405 U.S. 625 (1972), 31 L.E. 2d 536, 92 S.

Ct. 1221.

Argument—Discussion of Facts and Authorities IV

The evidence presented at the trial showed that on

the 6th day of April, A. D., 1970, Petitioner obtained from

Helton-Hodges Motor Company in Livingston, Texas a

1966 Chevrolet pick-up truck tendering a check for the

consideration (SF pp. 98-104 and 187). The vehicle

15

Argument

proved defective following delivery to Petitioner without

the opportunity for prior inspection, and he refused to

permit the check to be paid in due course. V.T7.C.A.,

Bus. & C., §§2.601, 2.606, 2.608, 2.721 and 4.403.

Notwithstanding complaining witness’ refrain from

testifying that the subject vehicle was in good condition

(SF pp. 113 and 115), and Petitioner’s presenting of tax

records reflecting multiple repair charges to show the de-

fective condition of the vehicle (SF pp. 90-91), the trial

Court refused to permit such records to raise the issue of

failure of consideration and an intent to engage a lawful

transaction on the part of Petitioner (SF pp. 176-186).

V.T.C.A., Bus. & C., 382.601 (a) and 4.403.

To the contrary, even though the Statement of Facts

as transcribed by Official Court Reporter Mary Frances

Dameron does not contain the interjections and miscel-

laneous related developments, an aura of impropriety was

created by the prosecution and sanctioned by the trial

Court with respect to the described evidence offered by

Petitioner. Vernon’s Ann. P.C., Art. 37.09 and 37.10;

Tithe 42, United States Code, §§1981, 1982 and 1983;

United States Code, Const., Amend. V, VIII and XIV.

The detrimental effect of such irregularities could

have been reduced by a proper charge including a refer-

ence to the distinctions between a solvent account and a

fictitious or otherwise fraudulent account and legal dis-

tinctions between a transaction for cash and one where

a check is the exchange medium (Tr. Item 57, pp. 136-

138). V.T.C.A., Bus. & C., §§3.409, 3.417, 4.303 and 4.-

403; Tarkington v. Brunett, 51 S.W. 274 (1899); Ander-

son v. O’Bryant, 3 S.W. 2d 842 (1928); Vernon’s Ann.

» dade aw

16

Argument

Civ. St., Art. 3713, Rules 5 and 6; Bledsoe v. Yarborough,

412 S.W. 2d 222 (1967); Hamilton v. Newburg, 412

S.W. 2d 801 (1967) ; Modine Manufacturing Co. v. North-

east Independent School District, 503 S.W. 2d 833

(1974); United States Code, Const., Amend. V, VIII,

XIII, XIV and XV.

The State court record shows without controversion

that the seller, Helton-Hodges Motor Company, made an

independent examination of the subject check, and the

issue was established that such seller did not rely to its

detriment on any representation of Petitioner (SF p. 42,

pp. 51-52). Beard v. State, 287 S.W. 2d 667 (1956);

Eason v. State, 320 S.W. 2d 11 (1959).

This issue was further developed by the evidence

admitted of Petitioner’s bank statements from the Chase

Manhattan Bank, N.A., One Chase Manhattan Plaza,

New York, N. Y. 10015, as they established without con-

troversion the solvency of the subject account with the

Chase Manhattan Bank (SF pp. 91-99). Anderson vy.

O'Bryant, 3 S.W. 2d 842 (1928); V.T.C.A., Bus. & C.,

§$3.409 and 3.417.

Argument—Discussion of Facts and Authorities V

The trial Court abused its constitutional discretion in

permitting the jury to consider an unrelated and improper

transaction, eloquently distinguished from the subject

transaction, wherein Petitioner exercised rights of a payor

on a negotiable instrument (SF pp. 121, 123 and 128).

Tarkington v. Brunett, 51 S.W. 274 (1899): Vernon’s

17

Argument

Ann. Rules Civ. Proc., Rule 185; United States Code,

Const., Amend. V, VIII, XIII, XIV and XV.

The unrelated transaction involved a check payable

to Angelina Chevrolet-Cadillac Company admitted into

evidence over the timely objection of Petitioner. Such

Company was indebted to Petitioner through an agency

relationship for an off-set in an amount exceeding sub-

stantially the amount of the draft admitted into evidence

(SF p. 121), and the procedures of the State trial Court

circumvented Petitioner’s conventional rights under nego-

tiable instruments law. Vernon’s Ann. Rules Civ. Proc.

Rules, 185; Vernon’s Ann. Bus. & C., §§3.409, 3.417,

4.303 and 4.403. Similarly, the ruling, in conjunction

with the trial Court’s refusal to instruct or charge the jury

on the issue (Tr. Item 57, pp. 136-138), circumvents

Petitioner’s statutory right to exercise self-help in prevent-

ing a criminal act against him. Vernon’s Ann. C.C.P.,

Art. 5.01; Vernon’s Ann. Bus. & C., §§4.303 and 4.403;

Title 42, United States Code, §§1981, 1982 and 1983.

Argument—Discussion of Facts and Authorities VI

The tneme of the trial Court judiciary of the State

of Texas, along with its prosecutors, was a global effort

calculated to deprive Petitioner of due process and his

rights as an American Citizen (Tr. Item 62, pp. 152-155;

Item 63, pp. 156-161). United States Code, Const.

Amend. V, VIII, XIII, XIV and XV. Such irregularities

may be appreciated most graphically by following an

event to event observation of the most typical prejudicial

irregularities.

18

Argument

While the litigation was in Polk County, Texas, the

judiciary revealed its contempt for Petitioner by summarily

denying his motion seeking to set aside the indictment

(Tr. Item 35, p. 97, SF pp. 1-2). This obviously prevent-

ed the record from reflecting a plenary and formal dispo-

sition of Petitioner’s objection to the pertinent Grand Jury

composition. Vernon's Ann. C.C.P., Art. 19.27; Norris

v. Alabama, 294 U.S. 587 (1935), 79 L.E. 1074, 55 S.Ct.

379; Eubanks y. Louisiana, 356 U.S. 584 (1958), 2

L.E.2d 991, 78 S.Ct. 970; Alexander v. Louisiana, 405

U.S. 625 (1972), 31 L.E.2d 536, 92 S.Ct. 1221.

The second notorious irregularity was the refusal of

the trial Court to sequester the petit jury. Vernon’s Ann.

C.C.P., Art. 35.23; Burris v. State, 40 S.W. 284 (1898).

The injury attached to jurors being subjected to unlimited

contacts and potential influences is too obvious to belabor

and duplicitous discussion of the factor is not merited.

Another irregularity which impeaches the integrity

of the State trial Court was the inability of the complain-

ing witness, Leonard Hodges, to identify the vehicle alleg-

edly taken through theft (SF p. 38) in light of Petitioner’s

motion for judgment after the prosecution had rested its

case (SF pp. 66-69). Hall v. State, 219 S.W.2d 475

(1949) ; May v. State, 34 S.W.2d 594 (1930).

It is, also, unconscionable that the State Trial Court

would ceny Petitioner’s motion for judgment where the

complaining witness admitted in sworn testimony before

the Court and jury that he made multiple independent ex-

aminations and evaluations of the subject draft without

relying on any representation by Petitioner (SF p. 42, pp.

51-52). Anderson vy. O’Bryant, 3 S.W.2d 842 (1928).

19

Argument

It is emphasized that relevant irregularities were not

limited to judicial acts, but Official Court Reporter Mary

Frances Dameron, also, contributed to the mockery of

justice. Muncy v. Johnston, 402 S.W.2d 525 (1966). At

SF p. 55, she failed to note Petitioner’s exception to the

ruling of the trial Court admitting testimony elicited

through leading questions of law from the complaining

witness, Leonard Hodges, that title to the subject vehicle

had left him. Vernon’s Ann. P.C., Art. 37.09 and 37.10;

Capitol Hotel Company v. Rittenberry, 41 S.W.2d 697

(1931); Paxton v. Spencer, 303 S.W.2d 637 (1973).

The next gross violation of legal procedures and due

process involved the trial Court’s denial of Petitioner’s mo-

tion to question a witness, Gilbert Woods of Goodrich,

Polk County, Texas, as an adverse witness (SF p. 73).

Such witness had been employed by seller for several

years, and the fear of seiler attached to him by virtue of

such relationship merited granting of Petitioner’s motion

to examine him as an adverse witness. Webb v. State, 7

S.W.2d 562 (1928).

Again at page 123 of the Statement of Facts, from

the State Court, the unjust character of the proceedings

was manifest in the continuation of hearsay evidence be-

fore the jury which though nominally disapproved by such

Court prejudiced Petitioner’s case more than an instruc-

tion to disregard could rectify. O’Beirne v. State, 365

S.W.2d 787 (1963).

Still more procedurally unfair was the refusal of the

State Court to require witness B. A. Hunter to answer be-

fore the jury, “Did you get an insurance company to pay

you on insurance that was obtained by Elijah W. Rat-

20

Argument

cliff?” This testimony, truthfully recited, would have ap-

proached proper depiction of Petitioner’s position that

the witness had a fraudulent, profit-making, overriding

objective, for impeachment purposes (SF p. 129). Lon

L. Fuller, Basic Contract Law, West Publishing Co., St.

Paul, Minn. (1947), p. 285; Vernon’s Ann. C.C.P., Art.

39.13.

Again at SF p. 132, Petitioners sought to protect the

jury from unlimited outside influences, but the State Trial

Court denied the request to sequester it, allowing such jury

to roam freely as though nothing was at stake. Vernon’s

Ann. C.C.P., Art. 35.23.

Perhaps the most material irregularity of the multi-

tude involves Court Reporter Mary Frances Dameron’s

failure to include the full discussions surrounding the sub-

mission of the charge to the jury as a part of the record.

Her transcription deletes all description of the State Trial

Court’s refusal to entertain the discussions on the jury

charge in open court even though it does show that certain

elements of proposed jury charges and instructions from

Petitioner would have presented the law applicable to the

case in a less vague context. Vernon’s Ann. P.C., Art. 37.-

09 and 37.10; Baggett v. Bullitt, 377 U.S. 360 (1964), 12

L.E.2d 377, 84 S.Ct. 1316; Younger v. Harris, 401 US.

37 (1971), 27 L.E.2d 669, 91 S.Ct. 746.

During the arguments to the jury, the most prejudi-

cial irregularities consisted of repetitious interruptions by

the prosecutors, apparently to curry favor with the jury,

where not a semblance of an objection was proper (SF

P. 151); the extension of the prosecutors’ argument to con-

texts unrelated to and inconsistent with statements and

testimony during the presentation of evidence (SF pp.

21

Argument

154-157); and the comparable extension of the prosecu-

tors’ argument to speculation on law at SF pp. 160-161

even though similar argument was declined Petitioner in

spite of the fact Petitioner’s argument was geared to cor-

rect a deficiency inherent in the jury charge (SF p. 152).

36 Tex. Jur. 2d, Trial, §240; Vernon’s Ann. Bus. & C.

$§3.409, 3.417, 4.303 and 4.403; Fultz v. First National

Bank, 380 S.W.2d 894 (1964).

Also, a further noteworthy irregularity on the part

of Official Court Reporter Mary Frances Dameron was

the striking of the prefix “in” from “inconsistent” to

avoid Petitioner’s objection to arguments by the prosecu-

tors which were inconsistent with the evidence received

during presentation of cases (SF pp. 154-157). United

States Code, Const. Amend. V, VIII, XIII, XIV and XV;

Vernon’s Ann. P.C., Art. 37.09 and 37.10; Jordan v. Mas-

sachusetts, 225 U.S. 167 (1912), 56 L.E. 1038, 32 S.Ct.

651; Johnson y. Mississippi, 403 U.S. 212 (1971), 29

L.E.2d 423, 91 S.Ct. 1778.

Argument—Discussion of Facts and Authorities VII

Petitioner’s conviction in the District Court of Mont-

gomery County, Texas, No. 11,064, should be voided: his

illegal restraint upon liberty terminated, and his rights as

a citizen declared. Vernon’s Ann. C.C.P., Art. 11.01-11.-

64, inclusive; Title 42, United States Code, §$1981, 1982

and 1983; Miller v. Winn, 28 S.W.2d 578 (1930); Pryor

v. Beto, 460 F.2d 307 (1972): Fay v. Noia, 372 U.S. 391

(1963), 9 L.E.2d 837, 83 S.Ct. 822; Cox v. Louisiana,

379 U.S. 536 (1965), 73 L.E.2d 471, 85 S.Ct. 453.

22

Argument

CONCLUSION

The mandate of the Supreme Court of the United

States should order the United States Court of Appeals,

Fifth Circuit, to direct the United States District Court for

the Southern District of Texas, Houston Division, to issue

the writ of habeas corpus without day commanding Re-

spondent to show cause why the relief sought by Petition-

er in the habeas corpus action before such United States

District Court should not be granted and why the judg-

ment of conviction returned against Petitioner in the Dis-

trict Court of Montgomery County, Texas, No. 11,064,

affirmed by the Court of Criminal Appeals of Texas, No.

47,600, should not be canceled, annulled and voided. Ti-

tle 28, United States Code, §§1651, 1652, 2241, 2242 and

2243; United States Code, Const. Amend. V, VIII, XIII,

XIV and XV.

Date

ELtj;AH W. RATCLIFF

Petitioner Pro Se

P. O. Box 862

Livingston, Texas 77351

Ph. 713—327-4948

Certificate of Service

CERTIFICATE OF SERVICE

1, Elijah W. Ratcliff, Petitioner, Pro Se, in the fore-

going Petition for Writ of Certiorari, certify that copies of

such printed petition have been served in triplicate on the

Honorable John L. Hill, Attorney General of Texas, Su-

preme Court Building, Austin 78711 as the Attorney for

Respondent by first class United States mail this day

of A.D., 1978.

Petitioner, Pro Se

24

Final Judgment, U.S. District Court

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

Houston Division

Civil Action No. 75-H-1945

Elijah W. Ratcliff,

Petitioner

v.

W. J. Estelle, Jr., Director, Texas Department of Correc-

tions, et al.,

Respondents

FINAL JUDGMENT

BE IT REMEMBERED that the above entitled and

numbered habeas corpus action came on for a determina-

tion on Respondent’s Amended Motion To Dismiss, and

it appearing to the Court that respondent’s motion should

be granted for the reasons stated in the Court's Memoran-

dum and Order of January 27, 1977,

25

Final Judgment, U.S. District Court

NOW, THEREFORE, it is ORDERED, ADJUDGED,

and DECREED that Respondent’s Amended Motion To

Dismiss be, and the same hereby is, GRANTED and the

above entitled and numbered action is accordingly hereby

DISMISSED without prejudice for failure to exhaust state

remedies as to all of the claims raised in his petition.

This is a FINAL JUDGMENT.

The Clerk shall file this Final Judgment and send a

copy to the parties.

DONE at Houston, Texas, this 28th day of June,

1977.

(s) James Noel

Judge Presiding

26

Memorandum and Order, Jan. 20, 1978

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

Houston Division

Civili Action No. H-77-1542

Elijah W. Ratcliff,

Petitioner

vs.

W. J. Estelle, Jr.,

Respondent

MEMORANDUM AND ORDER

This cause of action is before the Court on the Ap-

pellant’s Application for Certificate of Probable Cause.

The Court has considered the Application and hereby OR-

DERS:

Appellant’s Application for Certificate of Probable

Cause is DENIED.

The Court is of the opinion that a certificate of prob-

able cause should not issue pursuant to Fed. R. App. P.

22 (b) because this appeal is frivolous.

The Clerk shall file this Memorandum and Order and

provide all parties with a true copy.

27

Memorandum and Order, Jan. 20, 1978

Done at Houston, Texas, this 20 day of January,

1978. |

(s) Woodrow Seals

United States District Judge

28

Memorandum and Order, Dec. 19, 1977

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

Houston Division

Civil Action No. H-77-1542

Elijah W. Ratcliff,

Petitioner

vs.

W. J. Estelle, !r.,

Respondent

MEMORANDUM AND ORDER

This cause of action is before the Court on the Pe-

titioner’s application for writ of habeas corpus. Petition-

er, in his present writ application, contends the following:

1. that he was convicted under an unconsti-

tionally vague statute;

2. that Blacks were systematically excluded

from the Grand Jury;

3. that the trial court abused its discretion in

refusing to permit Petitioner’s tax records into evi-

dence;

29

Memorandum and Order, Dec. 19, 1977

4. that the trial court abused its discretion in

admitting evidence that Petitioner had stopped pay-

ment on a check in another transaction; and

5. that the proceedings in the district court

were calculated to deprive Petitioner of due process

and that such actions influenced the conduct of the

officials of the Texas Board of Pardons and Pe roles.

The Court having considered the pleadings and the

response thereto is of the opinion that Petitioner’s appli-

cation for writ of habeas corpus should be and the same

is hereby dismissed.

First, Petitioner’s contention that he was convicted

under an unconstitutionally vague statute is without merit.

The Fifth Circuit has held that habeas corpus is not a

proper means for attacking a statute on the ground of fa-

cial unconstitutionality, Walters y. Clement, 544 F.2d

1340 (5th Cir. 1977). Thus, in the absence of allegations

that the statute as applied to Petitioner was unconstitu-

tional, Petitioner is not entitled to habeas corpus relief.

Secondly, Petitioner's allegation that Blacks were sys-

tematically excluded from the Grand Jury is a mere con-

clusion as he has failed to state any facts supporting this

allegation. Petitioner must do more than assert conclu-

sions. Woodward v. Beto, 447 F.2d 103 (5th Cir. 1971).

Also, Petitioner’s failure to object to the makeup of the

Grand Jury prior to trial waived any arguable defect in

the constitution of such juries. Francis v. Henderson, 425

U.S. 536, 96 S.Ct. 1708 (1976). Petitioner, therefore, is

not entitled to habeas corpus regarding this allegation.

Third, Respondent contends that Petitioner’s conten-

tion that the trial court erred in refusing to permit Peti-

30

Memorandum and Order, Dec. 19, 1977

tioner’s tax records into evidence, even if true, does not

raise an issue of constitutional dimension upon which fed-

eral habeas corpus relief might be granted.

Petitioner’s contention raises a question of the pro-

priety of evidentiary findings. These are matters deter-

mined by state courts and are not amenable to federal ha-

beas corpus relief. Nelson v. Moriarty, 484 F.2d 1034

(ist Cir. 1973).

The Fifth Circuit, in Heads v. Beto, 468 F.2d 241

(5th Cir. 1972), held that questions concerning the ad-

missibility of evidence are not subject to a review by a fed-

eral court in a habeas corpus proceeding unless the error

is of such a magnitude as to deny fundamental fairness to

the criminal trial. Respondent asserts that error, if any,

does not rise to the level of a denial of such fundamental

fairness.

Fourth, Petitioner’s allegation that the trial court

erred in admitting evidence of an extraneous transaction

does not state a cause of action upon which relief may be

granted. Admission of evidence of extraneous offenses

in a state trial does not present a federal question upon

which habeas corpus relief may be predicated. Murphy

v. Beto, 416 F.2d 98 (5th Cir. 1969); Heads v. Beto. 468

F.2d 241 (5th Cir. 1972).

Respondent would note that the trial judge did not

err in admitting the evidence. The State offered the evi-

dence regarding the transaction for the limited purpose of

showing intent (see Statement of Facts, p. 108) and the

jury was clearly advised of this fact in the jury charge.

Evidence of such extraneous offense may be admitted into

evidence to show the scheme, design, identity, or intent.

31

Memorandum and Order, Dec. 19, 1977

Newman v. Texas, 485 S.W.2d 576 (Tex. Crim. App.

1972); Nees v. Culbertson, 406 F.2d 621 (5th Cir. 1969).

Finally, Petitioner’s contention that the proceedings

in the district court were calculated to deprive Petitioner

of due process and that such actions influenced the con-

duct of the officials of the Texas Board of Pardons and

Paroles is conclusory in nature and as such does not enti-

tle Petitioner to federal habeas corpus relief. Woodward

v. Beto, 447 F.2d 103 (5th Cir. 1971). Generalities are

not sufficient. Specific factual allegations are required.

The Clerk shall file this Memorandum and Order

and provide all parties with a true copy.

Done at Houston, Texas, this 19th day of December,

1977.

(s) Woodrow Seals

United States District Judge

32

Memorandum and Order, Court of A ppeals

UNITED STATES COURT OF APPEALS

Fifth Circuit

Office of the Clerk

March 27, 1978

Edward W. Wadsworth 600 Camp Street

Clerk New Orleans, La. 70130

Telephone 504—589-6514

MEMORANDUM TO COUNSEL OR PARTIES

LISTED BELOW:

No. 77-8424—Elijah Ratcliff vs. W. J. Estelle

(Dist. Ct. No. 75-H-1945)

No. 78-8093—Elijah Ratcliff vs. W. J. Estelle

(Dist. Ct. No. 77-1542-CA-H)

The following action has this day been taken in the

above case:

( ) Motion to proceed on the original record

granted.

{ ) Motion to proceed on the original rec-

ord and typewritten brief granted.

( ) Motion to consolidate granted.

( ) Motion to supplement or correct record

granted.

( ) Motion for leave to file supplemental

brief granted.

33

Memorandum and Order, Court of Appeals

7 ( ) Motion for leave to file brief amicus cu-

riae is granted.

( ) Motion for leave to file brief in prelim-

inary type written form is granted.

( ) Joint motion as to time for filing briefs

granted.

(X) Order enclosed has been entered.

( )

cc Mr. Elijah W. Ratcliff (w/personal papers)

Mr. Alvin K. James

Mr. John Pierce Griffin

Mr. V. Bailey Thomas, Clerk

P.S. to Mr. Thomas: Returned herewith are your

original papers in No. 77-1542-CA-H to be certified as the

record on appeal.

Also returned herewith are your original papers in

No. 75-H-1945. Please acknowledge receipt.

Edward W. Wadsworth,

Clerk

By Clare F. Sachs

Deputy Clerk

34

Memorandum and Order, Court of A ppeals

IN THE UNITED STATES COURT OF APPEALS

For the Fifth Circuit

Nos. 77-8424 & 78-8093

Elijah W. Ratcliff,

Petitioner

versus

W. J. Estelle, Jr.,

Respondent

On Application for Certificate of Probable Cause

ORDER

These cases were consolidated on the unopposed mo-

tion of petitioner. The Court has been holding No. 77-

8424 pending en banc resolution of a case dealing with

the exhaustion question there presented. However, be-

Cause state remedies have now been exhausted and the

Same issues are raised in No. 78-8093, petitioner’s pro

se application for certificate of probable cause in No. 77-

8424 is DENIED. However, petitioner’s pro se applica-

tion for certificate of probable cause in No. 78-8093 is

GRANTED.

SO ORDERED.

(s) Homer Thornberry

United States Circuit Judge

35

Statutory Provisions

APPENDIX B

UNITED STATES CODE, CONST. AMEND. V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a grand jury, except in cases arising in the

land or naval forces, or in the militia, when in actual ser-

vice in time of war or public danger; nor shall any per-

son be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use

without just compensation.

UNITED STATES CODE, CONST. AMEND. VIII

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflict-

ed.

UNITED STATES CODE, CONST. AMEND. XIII

1. Neither slavery nor involuntary servitude, except

as punishment for crime whereof the party shall have been

duly convicted, shall exist within the United States, or any

place subject to their jurisdiction.

36 -

Statutory Provisions

2. Congress shall have authority to enforce this arti-

cle by appropriate legislation.

UNITED STATES CODE, CONST. AMEND. XIV

1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

Staics; nor shall any State deprive any person of life, lib-

erty, Or property, without due process of law, nor deny

to any person within its jurisdiction the equal protection

of the laws.

2. Representatives shall be apportioned among the

several States according to their respective numbers, count-

ing the whole number of persons in each State, exclud-

ing Indians not taxed. But when the right to vote at any

election for the choice of electors for the President and

Vice-President of the United States, Representatives in

Congress, the executive and judicial officers of a State, or

the members of the legislature thereof, is denied to any of

the male inhabitants of such State, being twenty-one years

of age, and citizens of the United States, or in any way

abridged, except for participation in rebellion or other

crime, the basis of representation therein shall be reduced

in the proportion which the number of such male citizens

shall bear to the whoie number of male citizens twenty-

one years of age in such State.

3. No person shall be a Senator or Representative

in Congress, or elector of President and Vice-President, or

owe a te = es ren

37

Statutory Provisions

hold any office, civil or military, under the United States,

or under any State, who having previously taken an oath

as a member of Congress, or as an officer of the United

States, or as a member of any State legislature, or as an

executive or judicial officer of any State, to support the

Constitution of the United States, shall have engaged in

insurrection or rebellion against the same, or given aid

or comfort to the enemies thereof. But Congress may, by a

vote of two-thirds of each house, remove such disability.

4. The validity of the public debt of the United

States, authorized by law, including debts incurred for

payment of pensions and bounties for services in suppress-

ing insurrection or rebellion, shall not be questioned. But

neither the United States nor any State shall assume or

pay any debt or obligation incurred in aid of insurrection

or rebellion against the United States, or any claim for the

loss or emancipation of any slave; but all such debts, obli-

gations, and claims shall be held illegal and void.

3. The Congress shall have power to enforce, by ap-

propriate legislation, the provisions of this article.

UNITED STATES CODE, CONST. AMEND. XV

1. The right of citizens of the United States to vote

shall not be denied or abridged by the United States or by

any State on account of race, color, or previous condition

of servitude.

2. The Congress shall have power to enforce this

article by appropriate legislation.

38

Statutory Provisions

TITLE 42, UNITED STATES CODE, SECTION 1981

Equal Rights Under the Law

ALL persons within the jurisdiction of the United

States shall have the same right in every State and Terri-

tory to make and enforce contracts, to sue, be parties, give

evidence, and to the full and equal benefit of all laws and

proceedings for the security of parties.

TITLE 42, UNITED STATES CODE, SECTION 1982

Property Rights of Citizens

All citizens of the United States shall have the same

right, in every State and Territory, as is enjoyed by white

citizens thereof to inherit, purchase, lease, sell, hold, and

convey real and personal property.

TITLE #42, UNITED STATES CODE, SECTION 1983

Civil Action for Deprivation of Rights

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Terri-

tory, subjects, or causes to be subjected, any citizen of

the United States or other person within the jurisc.iction

thereof to the deprivation of any rights, privileges, or im-

munities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equi-

ty, or other proper proceeding for redress. (R.S. Sec.

1979).

39

Statutory Provisions

TITLE 42, UNITED STATES CODE, SECTION 1984

Same; Review of Proceedings

All cases arising under the provisions of this Act in

the courts of the United States shall be reviewable by the

Supreme Court of the United States, without regard to

the sum in controversy, under the same provisions and reg-

ulations as are provided by law for the review of other

Causes in said court.

TITLE 42, UNITED STATES CODE, SECTION 1985

Conspiracy To Interfere With Civil Rights

(1) Preventing officer from performing duties. If

two or more persons in any State or Territory conspire to

prevent, by force, intimidation, or threat, any person from

accepting or holding any office, trust, or place of confi-

dence under the United States, or from discharging any

duties thereof; or to induce by like means any officer of

the United States to leave any State, district, or place,

where his duties as an officer are required to be per-

formed, or to injure him in his person or property on ac-

count of his lawful discharge thereof, or to injure his prop-

erty so as to molest, interrupt, hinder, or impede him in

the discharge of his official duties;

(2) Obstructing justice; intimidating party, wit-

ness, or juror. If two or more persons in any State or

Territory conspire to deter, by force, intimidation, or

threat, any party or witness in any court of the United

States from attending such court or from testifying to any

40

Statutory Provisions

matter pending therein freely, fully, and in any such court,

Or to injure such party or witness in his person or prop-

erty on account of any verdict, presentment, or indict-

ment lawfully assented to by him, or of his being or hav-

ing been such juror; or if two or more persons conspire

for the purpose of impeding, hindering, obstructing, or

defeating, in any manner, the due course of justice in any

State or Territory, with intent to deny to any citizen the

equal protection of the laws, or to injure him or his prop-

erty for lawfully enforcing, or attempting to enforce, the

right of any person, or class of persons, to the equal pro-

tection of the law;

(3) Depriving persons of rights or privileges. If

two or more persons in any State or Territory conspire

or go in disguise on the highway or on the premises of

another, for the purpose of depriving, either directly or

indirectly, any person or class of persons of the equal pro-

tection of the laws, or of equal privileges and immunities

under the laws; or for the purpose of preventing or hin-

dering the constituted authorities of any State or Territory

from giving or securing to all persons within such State

or Territory the equal protection of the laws; or if two or

more persons conspire to prevent by force, intimidation,

or threat, any citizen who is lawfully entitled to vote, from

giving his support or advocacy in a legal manner, toward

or in favor of the election of any lawfully qualified per-

son as an elector for President or Vice-President, or as a

Member of Congress of the United States; or to injure any

citizen in person or property on account of such support

Or advocacy; in any case of conspiracy set forth in this

section, if one or more persons engaged therein do, or

cause to be done, any act in furtherance of the object of

———

41

Statutory Provisions

such conspiracy, whereby another is injured in his per-

son or property, or deprived of having and exercising any

right or privilege, of a citizen of the United States, the

party so injured or deprived may have an action for the

recovery of damages, occasioned by such injury or depri-

vation, against any one or more of the conspirators. (R.S.

Sec. 1980.)

TITLE 42, UNITED STATES CODE, SECTION 1986

Same; Action for Neglect To Prevent

Every person who, having knowledge that any of

the wrongs conspired to be done, and mentioned in Sec-

tion 1985 of this Title, are about to be committed, and

having power to prevent or aid in preventing the commis-

sion of the same, neglects or refuses so to do, if such

wrongful act be committed, shall be liable to the party

injured, or his legal representative, for all damages caused

by such wrongful act, which such person by reasonable

diligence could have prevented; and any number of per-

sons guilty of such wrongful neglect or refusal may be

joined as defendants in the action; and if deceased shall

have such action therefor, and may recover not exceed-

ing $5,000 damages therein, for the benefit of the widow

of the deceased, if there be one, and if there be no widow

then for the benefit of the next of kin of the deceased. But

no action under the provisions of this section shall be sus-

tained which is not commenced within one year after the

cause of action accrued. (R.S., Sec. 1981.)

42

Statutory Provisions

TITLE 42, UNITED STATES CODE, SECTION 1987

Prosecution of Violation of Certain Laws

The United States attorneys, marshals, the commis-

sioners appointed by the district and territorial courts,

with power to arrest, imprison or bail offenders, and ev-

ery other officer who is especially empowered by the

President, are authorized and required at the expense of

the United States to institute prosecutions against all per-

sons violating any of the provisions of Section 1990 of

this Title or of Sections 5506 to 5516 and 5518 to 5532

of the Revised Statutes, and to cause such persons to be

arrested, and imprisoned or bailed for trial before the

court of the United States or the territorial court having

cognizance of the offense. (R.S. Sec. 1982.)

TITLE 42, UNITED STATES CODE, SECTION 1988

Proceedings in Vindication of Civil Rights

The jurisdiction in civil and criminal matters con-

ferred on the district courts by the provisions of this chap-

ter and Title 18, for the protection of all persons in the

United States in their civil rights and for vindication, shall

be exercised and enforced in accordance with the laws of

the United States so long as such laws are suitable to carry

the same into effect; but in all cases where they are not

adapted to the object, or are deficient in the provisions

necessary to furnish suitable remedies and punish offenses

against law, the common law, as modified and changed

by the constitution of the State wherein the court having

43

Statutory Provisions

jurisdiction of such civil or criminal cause is held, so far

as the same is not inconsistent with the Constitution and

laws of the United States, shall be extended to and gov-

ern the said courts in the trial and disposition of the cause,

and, if it is of a criminal nature, in the infliction of pun-

ishment on the party found guilty. (R.S. Sec. 722.)

TITLE 42, UNITED STATES CODE, SECTION 1989

Commissioners; Appointment of Persons To Execute

aa Warrants

The district courts of the United States and the dis-

trict courts of the Territories, from time to time, shall in-

crease the number of commisisoners, so as to afford a

speedy and convenient means for the arrest and examina-

tion of persons charged with crimes referred to in Sec-

tion 1987 of this Title; and such commissioners are au-

thorized and required to exercise all the powers and du-

ties conferred on them herein with regard to such offenses

in like manner as they are authorized by law to exercise

with regard to other offenses against the laws of the Unit-

ed States. Said commissioners are empowered, within

their respective counties, to appoint, in writing, under

their hands, one or more suitable persons, from time to

time, who shall execute all such warrants or other process

as the commissioners may issue in the lawful performance

of their duties, and the persons so appointed shall have

authority to summon and call to their aid the bystanders

Or posse comitatus of the proper county, or such portion

of the land or naval forces of the United States, or the

44

Statutory Provisions

militia, as may be necessary to the performance of the

duty with which they are charged; and such warrants shall

run and be executed anywhere in the State or Territory

within ‘which they are issued. (R.S. Sec. 1983, 1984.)

TITLE 42, UNITED STATES CODE, SECTION 1990

Marshal To Obey Precepts; Refusing To Receive or

Execute Process

Every marshal and deputy marshal shall obey and ex-

ecute all warrants or other process, when directed to him

issued under the provisions of Section 1989 of this Title.

Every marshal and deputy marshal who refuses to receive

any warrant or other process when tendered to him, issued

in pursuance of the provisions of this section, or refuses

or neglects to use all proper means diligently to execute

the same, shall be liable to a fine in the sum of $1,000,

for the benefit of the party aggrieved thereby. (R.S. Sec.

1985, 5517.)

TITLE 42, UNITED STATES CODE, SECTION 1991

Fees; Persons Appointed To Execute Process

Every person appointed to execute process under

Section 1989 of this Title shall be entitled to a fee of $5

for each party he may arrest and take befote any commis-

sioner with such other fees as may be deemed reasonable

by the commissioner for any additional services necessarily

performed by him, such as attending at the examination,

45

Statutory Provisions

keeping the prisoner in custody, and providing him with

food and lodging during his detention, and until the final

determination by the commissioner; such fees to be made

up in conformity with the fees v ually charged by the of-

ficers of the courts of justice within the proper district or

county, as near as may be practicable, and paid out of

the Treasury of the United States on the certificate of the

judge of the district within which the arrest is made, and

to be recoverable from the defendant as part of the judg-

ment in case of conviction. (R.S. Sec. 1987.)

TITLE 42, UNITED STATES CODE, SECTION 1992

Speedy Trial

Whenever the President has reason to believe that of-

fenses have been, or are likely to be committed against

the provisions of Section 1990 of this Title or of Section

5506 to 5516 and 5518 to 5532 of the Revised Statutes,

within any judicial district, it shall be lawful for him, in

his discretion, to direct the judge, marshal, and United

States attorney of such district to attend at such place

within the district, and for such time as he may designate,

for the purpose of the more speedy arrest and trial of per-

sons so charged, and it shall be the duty of every judge or

other officer, when any such requisition is received by him

to attend at the place and for the time therein designated.

(R.S. Section 1988.)

TITLE 42, UNITED STATES CODE, SECTION 1993

(Repealed Sept. 9, 1957)

46

Statutory Provisions

TITLE 42, UNITED STATES CODE, SECTION 1994

Peonage Abolished

The holding of any person to service or labor under

the system known as peonage is abolished and forever

prohibited in any Territory or State of the United States;

and all acts, laws, resolutions, orders, regulations, or

usages of any Territory or State, which have heretofore

established, maintained, or enforced, or by virtue of which

any attempt shall hereafter be made to establish, main-

tain, or enforce, directly or indirectly, the voluntary or in-

voluntary service or labor of any person as peons, in liqui-

dation of any debt or obligation, or otherwise, are declared

null and void. (R.S. Section 1990.)

TITLE 42, UNITED STATES CODE, SECTION 1995

Criminal Contempt Proceedings; Penalties; Trial by Jury

In all cases of criminal contempt arising under the

provisions of this Act, the accused, upon conviction, shall

be punished by fine or imprisonment or both: Provided

however, That in case the accused is a natural person the

fine to be paid shall not exceed the term of six months:

Provided further, That in any such proceeding for crim-

inal contempt, at the discretion of the judge, the accused

may be tried with or without a jury; Provided further,

however, That in the event such proceeding for criminal

contempt be tried before a judge without a jury and the

sentence of the court upon conviction is a fine in excess

of the sum of $300 or imprisonment in excess of forty-

five days, the accused in said proceeding, upon demand

47”

Statutory Provisions

therefor, shall be entitled to a trial de novo before a jury,

which shall conform as near as may be to the practice in

other criminal cases.

This section shall not apply to contempts committed

in the presence of the court or so near thereto as to inter-

fere directly with the administration of justice nor to the

misbehavior, misconduct, or disobedience, of any officer

of the court in respect to the writs, orders, or process of

the court.

Nor shall anything herein or in any other provision

of law be construed to deprive courts of their power, by

civil contempt proceedings, without a jury, to secure com-

pliance with or to prevent obstruction of, as distinguished

from punishment for violations of, any lawful writ, pro-

cess, order, rule, decree, or command of the court in ac-

cordance with the prevailing usages of law and equity,

including the power of detention.

V.T.C.A., BUS. & C. §2.601

§2.601. Buyer’s Rights on Improper Delivery

Subject to the provisions of this chapter on breach in

installment contracts (Section 2.612) and unless otherwise

agreed under the sections on contractual limitations of

remedy (Sections 2.718 and 2.719), if the goods or the

tender of delivery fail in any respect to conform to the

contract, the buyer may

(1) reject the whole; or

(2) accept the whole; or

48

Statutory Provisions

(3) accept any commercial unit or units and

reject the rest.

(59th Legis., Ch. 721, Sec. 2—601.)

Acts 1967, 60th Leg., vol. 2, p. 2343, ch. 785, §1.

V.T.C.A., BUS. & C. §2.606

§2.606. What Constitutes Acceptance of Goods

(a) Acceptance of goods occurs when the buyer

(1) after a reasonable opportunity to inspect

the goods signifies to the seller that the goods are con-

forming or that he will take or retain them in spite

of their non-conformity; or

(2) fails to make an effective rejection (Sub-

section (a) of Section 2.602), but such acceptance

does not occur until the buyer has had a reasonable

Opportunity to inspect them; or

(3) does any act inconsistent with the seller’s

ownership; but if such act is wrongful as against the

seller it is an acceptance only if ratified by him.

(b) Acceptance of a part of any commercial unit

is acceptance of that entire unit. (59th Legis., Ch. 721,

Sec. 2—606.)

Acts 1967, 60th Leg., vol. 2, p. 2343, ch. 785, §1.

49

Statutory Provisions

V.T.C.A., BUS. & C. §2.608

§2.608. Revocation of Acceptance in Whole or in

Part

(a) The buyer may revoke his acceptance of a lot

Or commercial unit whose non-conformity substantially im-

pairs its value to him if he has accepted it.

(1) on the reasonable assumption that its non-

coniormity would be cured and it has not been season-

ably cured; or

(2) without discovery of such non-conformity

if his acceptance was reasonably induced either

by the difficulty of discovery before acceptance or by

the seller’s assurances.

(b) Revocation of acceptance must occur within a

reasonable time after the buyer discovers or should

have discovered the ground for it and before any substan-

tial change in condition of the goods which is not caused

by their own defects. It is not effective until the buyer

notifies the seller of it.

(c) A buyer who so revokes has the same rights and

duties with regard to the goods involved as if he had re-

jected them. (59th Legis., Ch. 721, Sec. 2—608.)

Acts 1967, 60th Leg., vol. 2, p. 2343, ch. 785, §1.

V.T.C.A., BUS. & C. §2.721

§2.721. Remedies for Fraud

Remedies for material misrepresentation or fraud in-

clude all remedies available under this chapter for non-

50 *

Statutory Provisions

fraudulent breach. Neither rescission or a claim for re-

scission of the contract for sale nor rejection or return of

the goods shall bar or be deemed inconsistent with a claim

for damages or other remedy. (59th Legis., Ch. 721, Sec.

2—721.)

Acts 1967, 60th Leg., vol. 2, p. 2343, ch. 785, §1.

V.T.C.A., BUS. & C. §3.409

§3.409. Draft Not an Assignment

(a) A check or other draft does not of itself oper-

ate as an assignment of any funds in the hands of the

drawee available for its payment, and the drawee is not

liable on the instrument until he accepts it.

(b) Nothing in this section shall affect any liabil-

ity in contract, tort or otherwise arising from any letter

of credit or other obligation or representation which is

not an acceptance. (59th Legis., Ch. 721, Sec. 3—409.)

Acts 1967, 60th Leg., vol. 2, p. 2343, ch. 785, §1.

V.T.C.A., BUS. & C. §3.417

§3.417. Warranties on Presentment and Transfer

(a) Any person who obtains payment or accep-

tance and any prior transferor warrants to.a person who

in good faith pays or accepts that

(1) he has a good title to the instrument or is

authorized to obtain payment or acceptance on be-

half of one who has a good title; and

51

Statutory Provisions

(2) he has no knowledge that the signature

of the maker or drawer is unauthorized, except that

this warranty is not given by a holder in due course

acting in good faith

(A) to a maker with respect to the maker’s

Own signature; or

(B) to a drawer with respect to the drawer’s

own signature, whether or not the drawer is also the

drawee; or

(C) to an acceptor of a draft if the holder in

due course took the draft after the acceptance or ob-

tained the acceptance without knowledge that the

drawer’s signature was unauthorized: and

(3) the instrument has not been materially al-

tered, except that this warranty is not given by a

holder in due course acting in good faith

(A) to the maker of a note; or

(B) to the drawer of a draft whether or not

the drawer is also the drawee; or

(C) to the acceptor of a draft with respect to

an alteration made prior to the acceptance if the

holder in due course took the draft after the accep-

tance, even though the acceptance provided “payable

as Originally drawn” or equivalent terms: or

(D) to the acceptor of a draft with respect to

an alteration made after the acceptance.

(b) Any person who transfers an instrument and

receives consideration warrants to his transferee and if

the transfer is by indorsement to any subsequent holder

who takes the instrument in good faith that

52

Statutory Provisions

(1) he has a good title to the instrument or is

authorized to obtain payment or acceptance on behalf

of one who has a good title and the transfer is other-

wise rightful; and

(2) all signatures are genuine or authorized;

and

(3) the instrument has not been materially al-

tered; and

(4) no defense of any party is good against

him; and

(5) he has no knowledge of any insolvency

proceeding instituted with respect to the maker or

acceptor or the drawer of an unaccepted instrument.

(c) By transferring “without recourse” the trans-

feror limits the obligation stated in Subsection (b) (4) to

a warranty that he has no knowledge of such a defense.

(d) A selling agent or broker who does not dis-

close the fact that he is acting only as such gives the war-

ranties provided in this section, but if he makes such dis-

closure warrants only his good faith and authority. (59th

Legis., Ch. 721, Sec. 3—117.)

Acts 1967, 60th Leg., vol. 2, p. 2343, ch. 785, §1.

V.T.C.A., BUS. & C. §4.303

§4.303. When Items Subject to Notice, Stop-Order,

Legal Process or Setoff; Order in Which Items May Be

Charged or Certified -

—

53

Statutory Provisions

(a) Any knowledge, notice or stop-order received

by, legal process served upon or setoff exercised by a pay-

or bank, whether or not effective under other rules of law

to terminate, suspend or modify the bank’s right or duty

to pay any item or to charge its customer’s account for

the item, comes too late to so terminate, suspend or mod-

ify such right or duty if the knowledge, notice, stop-order

or other legal process is received or served and a reason-

able time for the bank to act thereon expires or the setoff

is exercised after the bank has done any of the following:

(1) accepted or certified the item;

(2) paid the item in cash;

(3) settled for the item without reserving a

right to revoke the settlement and without having

such right under statute, clearing house rule or agree-

ment;

(4) completed the process of posting the item

to the indicated account of the drawer, maker or oth-

er person to be charged therewith or otherwise has

evidenced by examination of such indicated account

and by action its decision to pay the item; or

(5) become accountable for the amount of the

item under subsection (1) (d) of Section 4.213 and

Section 4.302 dealing with the payor bank’s respon-

sibility for late return of items.

(b) Subject to the provisions of subsection (1)

items may be accepted, paid, certified or charged to

the indicated account of its customer in any order con-

venient to the bank.

54

Statutory Provisions

V.T.C.A., BUS. & C. §4.403

Customer’s Right To Stop Payment; Burden of Proof

of Loss

(a) A customer may by order to his bank stop pay-

ment of any item payable for his account but the order

must be received at such time and in such manner as to

afford the bank a reasonable Opportunity to act on it prior

to any action by the bank with respect to the item de-

scribed in Section 4.303.

(b) An order is binding upon the bank only if it

is in writing, dated, signed, and describes the item with

certainty. An order is effective for only six months unless

renewed in writing.

(c) The burden of establishing the fact and amount

of loss resulting from the payment of an item contrary to

a binding stop payment order is on the customer. (59th

Legis., Ch. 721, Sec. 4.403.) Acts 1957, 60th Leg., vol.

2, p. 2343, ch. 785, section 1.

VERNON’S ANN. CIV. ST., ART. 3713, RULE 5

Evidence must relate to facts in issue and to relevant

facts.

VERNON’S ANN. CIV. ST., ART. 3713, RULE 6

Facts are relevant when so connected with a fact in

issue as to form part of the same transaction or subjeci

matter.

ee ew.

ee ee ee .

55

Statutory Provisions

VERNON’S ANN. P.C., ART. 1410

(Now Repealed)

Theft is the fraudulent taking of Corporeal personal

property belonging to another from his posesssion or from

the possession of some person holding the same for him,

without his consent, with intent to deprive the owner of

the value of the same, and to appropriate it to the use

and benefit of the person taking.

VERNON’S ANN. P.C., ART. 1413

(Now Repealed)

The taking must be wrongful, so that if the property

came into the posesssion of the person accused of theft

by lawful means, the subsequent appropriation of it is not

theft, but if the taking, though originally lawful, was ob-

tained by any false pretext, or with any intent to deprive

the owner of the value thereof, and appropriate the prop-

erty to the use and benefit of the person taking, and the

same is so appropriated, the offense of theft is complete.