Petition for Writ of Certiorari — Schwager v. Texas Commerce Bank, N. A.

upreme Court, U.S.

FILED

92- ] 26 F YAN 25 1993

qs t : RK

NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

BRUCE B. SCHWAGER, et al..,

Petitioners,

Vv.

TEXAS COMMERCE BANK, N.A., et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF TEXAS

PETITION FOR WRIT OF CERTIORARI

BRUCE B. SCHWAGER- BETTE R. SCHWAGER

2001 Holcombe, Apt. 806

Houston, Texas 77030

(713) 796-2540

Pro Se

NO.

IN THE

oe Court of the Hnited States

OCTOBER TERM, 1992

BRUCE B. SCHWAGER, et al.,

Petitioners,

¥.

TEXAS COMMERCE BANK, N.A., et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF TEXAS

PETITION FOR WRIT OF CERTIORARI

BRUCE B. SCHWAGER BETTE R. SCHWAGER

2001 Holcombe, Apt. 806

Houston, Texas 77030

(713) 796-2540

Pro Se

_——————————— re

QUESTIONS PRESENTED

1. Were Petitioners denied their right to Due Process and Equal

Protection of the law and access to the Court as required by the

Fifth and Fourteenth Amendments to the U.S. Constitution and

the Texas Constitution art. I §§ 3, 13 and 19 due to the method

of electing judges along with the unlimited campaign contribu-

tions allowed? Is the Texas Election Code Section 251.003

constitutional? Did the hundreds of thousands of dollars in

campaign contributions made by attorneys for Baker & Botts,

Respondent’s law firm, to the trial judge Don Wittig, the Ist

Court of Appeals Judge Murray Cohen and successful candi-

dates to the Texas Supreme Court constitute lack of access to

the court and an obstruction of justice?

Nw

Was Petitioner Bette R. Schwager deprived of her rights and

property without Due Process and Equal Protection of the law

as required by the Fifth and Fourteenth Amendments to the

U.S. Constitution and the Texas Constitution art. I §§ 3, 13, 14

and 19 when she was not allowed to prosecute her claims and

defend herself against the taking of her property?

3. Were Petitioners denied their constitutional right of Due

Process under the Fifth and Fourteenth Amendments to the

Constitution of the United States and the Open Courts Provi-

sion of the Texas Constitution art. I §§ 3, 13 and 19 by not

being afforded a fair opportunity to obtain a meaningful appeal

on the merits of the case when the court of appeals struck 43

of Appellants’ 44 points of error for procedural defects?

4. Were Petitioners denied their right to Due Process and Equal

Protection of the law as required by the U.S. Constitution Fifth

and Fourteenth Amendments and the Texas Constitution art. I

§§ 3, 13 and 19 by the Courts of Texas not applying the law

equally to all citizens of the U.S. and the State of Texas? Were

Petitioners denied the benefit of the final judgment entered in

their favor on Oct. 14, 1986? (Appendix “W”) by Ist Court of

Appeals ruling on March 12, 1992 (Appendix “Y"’). Were

rt

Petitioners denied their constitutional rights by the Texas courts

assessing judgment against them without jurisdiction?

5. Were Petitioners denied their mght to Due Process and Equal

Protection of the law as required by the U.S. Constitution Fifth

and Fourteenth Amendments and the Texas Constitution art. [

§§ 3, 13 and 19 by the courts of Texas’ use of false and

fraudulent facts to support their opinion along with the allowed

perjury by the trial court?

Note: Schwager v. Texas Commerce Bank, N.A., 813 S.W.2d 225

(Tex. App.—Houston 1991) (per curiam). This case was stated in

the U.S. Supreme Court Judicial Highlights November 1991, page

ix West Supreme Court Reporter Vol. 112 November 1, 1991

No. I.

PARTIES TO THE PROCEEDINGS

Pursuant to the Texas Rules of Appellate Procedure, Petitioners

certify that the following is a complete list of the names of all

parties:

PETITIONERS:

Bruce Schwager, Bette Schwager,

B.B.M.M., Ltd., and B.M. Bayou Corporation

2001 Holcombe

Houston, Texas 77030

RESPONDENTS:

Dr. Malcolm Marcoe

6630 DeMoss Suite A

Houston, Texas

Dr. Harvey Resnick

201 Oak Drive

Lake Jackson, Texas

Fred Fallas

9306 Cliffwood

Houston, Texas

Texas Commerce Bank, N.A.

712 Main

Houston, Texas

Charles Best

3803 Lost Oak

Spring, Texas

iV

Meyer Fallas

9431 Denbury

Houston, Texas

William Cramer ,

9902 Balmforth

Houston, Texas

ATTORNEYS:

Bruce B. Schwager Bette R. Schwager Pro Se

2001 Holcombe, Apt. 806

Houston, Texas 77030

Mr. Robert Axelrad Texas Commerce Bank

1990 Post Oak Boulevard Charles Best

14th Floor

Houston, TX 77056-3814

Mr. Newton B. Schwartz Harvey Resnick

Schwartz, Berger & Valdez, P.C.

723 Main Street

Suite 325

Houston, TX 77002

Mr. John Zavitsanos Texas Commerce Bank

Baker & Bo*ts Charles Best

One Shell Plaza

910 Louisiana

Houston, TX 77002-4995

Ms. Cynthia G. Farris Texas Commerce Bank

Baker & Botts Charles Best

One Shell Plaza, 910 Louisiana

Houston, TX 77002-4995

——

Mr. Neil S. Levin Fred Fallas, Meyer Fallas,

Suite 710 Malcolm Marcoe,

4828 Loop Central Drive William Cramer

Houston, TX 77081-2212

.)

Mr. Joseph D. Cheavens Texas Commerce Bank

Baker & Botts Charles Best

One Shell Plaza

910 Louisiana

Houston, TX 77002-4995

vl

TABLE OF CONTENTS

Page

eb gg 8G |). ) SE ee rrr ara i

PRUE 2O) Tits PURO oe eee ec ees ill

eS kT Oo ik se oe ee a oe x

I ans wa ke ke ves Se hee ara © eee We l

eo PR ee ee re ee era ee l

ee ee eS Se ee See Se ey Se a ee 2

PERTINENT CONSTITUTIONAL PROVISIONS ......... 2

ge Ri pry.) aa 2

STATEMENT OF THE CASE AND FACTS ............ 5

REASONS FOR GRANTING THE WRIT ............. il

& Petitioners were denied their right to Due Process and

Equal Protection of the law and access to the Court as

required by the Fifth and Fourteenth Amendments to

the U.S. Constitution and the Texas Constitution art.

I §§ 3, 13 and 19 due to the method of electing

judges along with the unlimited campaign contribu-

tions allowed. The Texas Election Code Section

251.003 is unconstitutional. The hundreds of thou-

sands of dollars in campaign contributions made by

attorneys for Baker & Botts, Respondent’s law firm,

to the trial judge Don Wittig, the Ist Court of Appeals

Judge Murray Cohen and successful candidates to the

Texas Supreme Court constituted a lack of access to

the court and an obstruction of justice ............ 11

Vil

Petitioner Bette R. Schwager was deprived of her

rights and property without Due Process and Equal

Protection of the law as required by the Fifth and

Fourteenth Amendments to the U.S. Constitution and

the Texas Constitution art. I §§ 3, 13, 14 and 19 as

she was not allowed to pro:ecute her claims and

defend herself against the taking of her property

Petitioners were denied their constitutional right of

Due Process under the Fifth and Fourteenth Amend-

ments to the Constitution of the United States and the

Open Courts Provision of the Texas Constitution art.

I §§ 3, 13 and 19 by not being afforded a fair oppor-

tunity to obtain a meaningful appeal on the merits of

the case as the court of appeals struck 43 of Appel-

lants’ 44 points of error for procedural defects .....

Petitioners were denied their nght to Due Process and

Equal Protection of the law as required by the U.S.

Constitution Fifth and Fourteenth Amendments and

the Texas Constitution art. I §§ 3, 13 and 19 by the

Courts of Texas not applying the law equally to ail

citizens of the U.S. and the State of Texas. Petitioners

were denied the benefit of the final judgment entered

in their favor on Oct. 14, 1986. (Appendix “W”) by

Ist Court of Appeals ruling on March 12, 1992

(Appendix “Y”). Petitioners were denied their consti-

tutional rights by the Texas courts assessing judgment

against them without jurisdiction ..............

Petitioners were denied their nght to Due Process and

Equal Protection of the law as required by the U.S.

Constitution Fifth and Fourteenth Amendments and

the Texas Constitution art. I §§ 3, 13 and 19 by the

courts of Texas’ use of false and fraudulent facts to

Page

.

Vill

Page

support their opinion along with the allowed perjury

Ot Se es OE oc cae eR eho ecb eee sc shares 26

CR 4 o:d6s OSCR ES us hore ee ox bok eks 28

APPENDIX “A”: Newspaper Articles -

Campaign Contributions

Legeaed Brmery 2... wees A-|

APPENDIX “B”: Ruling Texas Supreme Court, 9/9/92 .. B-|

APPENDIX “C”: Ruling Texas Supreme Court,

PEE 664-04 ue ea wk eek be C-|

APPENDIX “D”: Judgment Ist Court of Appeals,

rere eres D-|

APPENDIX “E”: Incorrect and Inconsistent Statements .. E-|

APPENDIX “F”: Documents Showing Finality of

86-07376 Judgment .............. F-]

APPENDIX “G”: S.F. Hearing, 5/26/67 ............. G-]

APPENDIX “H”: List of Authorities Submitted to

Texas Supreme Court ............. H-|

APPENDIX “I”: | Newspaper Article:

Texas Justice for Sale... ........55:, I-]

APPENDIX “J”: Newspaper Article:

Law Firm Top Donors to Justices ..... j-1

APPENDIX “K”™: Newspaper Article:

selecting Our Judges ... 2... 0.055, K-]

APPENDIX “L”:

APPENDIX

APPENDIX “

APPENDIX “

APPENDIX “P”:

APPENDIX “

APPENDIX °

“Mi”:

.

APPENDIX “S”

Answer to Action of Trial Court ..... L-1

Answer to Ist Court of Appeals

gt a ae ee ee M-1

Bette Schwager’s Detailed Argument .. N-1

Judgment Case #87-14551 ......... O-1

Respondents’ Trial Pleading ........ P-|

ye ae ae ee eee Q-1

Argument for Finality of 86-07376

SE a aaah eke 6s 0k 6x ee OO R-|

po Le ee S-1

APPENDIX “T”: Arguments for Conspiracy & Perjury .. T-1

APPENDIX “U”: Constitutions and Statutes .......... U-1

APPENDIX “V”": Order Striking 42 Points of Error

ARRAS a ere re V-1

APPENDIX “W”: Judgment Case #86-07396 ......... W-!

APPENDIX “X”: Campaign Contribution Report ...... X-1

APPENDIX “Y”: Opinion Affirming Judgment

APPENDIX “Z”:

Cause #87-14551, 3/12/92 ......... Y-|

Newspaper Article: There are better

ways to finance judicial races than

the way we do in Texas ........... Z-1

X

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Allen v. McCurry, 101 S. Ct. 411 (1980) ............. 25

Armstrong v. Manzo, 380 U.S. 545 (1965) ............ 21

Armstrong v. Manzo, 85 S. Ct. 1187 (1965) ......... 15, 28

Asher v. Swenson, Warden, 397 U.S. 436

eT eee, ie ae alate Geek hoe 26

Bankers Trust Co. v. Mallis, 435 U.S. 381

Ree oe ay ee ere 18

Barber v. Connolly, 5 S. Ct. 357 (1885)... 2.6 eee 8, 27

Billington v. Undernood, 613 F.2d 91 (CA 5

a EE eee ee ee ee 12

Bounde v. Smith, 97 S. Ct. 1491 (1977) . 2.2... .....858. 15

Brinkerhoff-Farris Trust & Savings Co. v.

Hill, 281 U.S. 673, 50 S. Ct. 451 (1930) ........ 27

Brown v. Felsen, 99 S. Ct. 2205 (1979) .............. 26

Burnham v. Superior Court of California, 110

i es I ee eae See es cance eva es 24

Citronelle-Mobile Gathering, Inc. v. Watkins,

ioe Bl ett fe 3 | ere 26

Craig v. Carson, 449 F. Supp. 385 (1979) ............ 17

Xl

Crest v. Lane, 745 F.2d 476 cert. denied, 105

S. Ct. 2146, 471 U.S. 1068, 85 L. Ed. 2d

LCE EeT SEE eee ce eee eae

Dirt, Inc. v. Mobile County Com'n, 739 F.2d

cok. | eeererere es Tees eee ee

Douglas v. People of State of California, 83

Ea et || ECT E ee Tee TE eee

Drum vy. Nasuti, 648 F. Supp. 888 (E.D. Pa.

SRR ye eee

Estin v. Estin, 68 S. Ct. 1213 (1948) ...........

Evitts v. Lucey, 469 U.S. 387 (1985) ...........

Fay v. Nota, 3 S. Ct. 822 (1903) 2... ce enes

Federated Dep't Stores, Inc. v. Moitie, 101

ee 2) a re eee

ee RG De ey Se ee

Fuentes v. Sherin, 92 S. Ct. 1983 (1972) ........

Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct.

Rp ee oe ere

Haag v. Cuyahogu County, 619 F. Supp. 262

oe ee

Johnson v. Mississippi, 403 U.S. 212, 91 S.

Ct. 1778, 29 L. Ed. 2d 423 (1971) ........

‘6's 4 5

Page

——— ee

Xi

Page

Kremer v. Chemical Const. Corp., 102 S. Ct.

SP RU leg ie ce eee Sw eek eae 26

Leis v. Flyn, 439 U.S. 438, 99 S. Ct. 698

1 Peer rs Per Penne irr rege 23

Logan v. Zimmerman Brush Co., 102 S. Ct. 1148

CR oe hes ee ee Se ee ee 18, 22

Logan v. Zimmermann Brush Co., 455 U.S. 422

A) Pee eee hee ee ee eee 21

Mathews v. Eldridge, 424 U.S. at 333, 96 S.

ay. Reg me Re ae ee er 18

McKane v. Durston, 153 U.S. 684 (1894) ............ 21

Nebraska Press Association v. Stuart, 427

U.S. 539, 96 S. Ct. 279, 49 L. Ed. 2d 683

Ne ar eh er eae ea ee a aga aly 14

North Ga. Finishing, Inc. v. Di Cheng, Inc.,

419 U.S. at 607, 95 S. Ct. at 722, 42 L.

& Ff 2. o Sie ee re ee ee rere eee 17

Okison vy. Tolley School Dist. No. 25 Renville

County State of N.D., 760 F.2d 864

IE. Fee SE PE hee a is ca ee ws eas 17

Patterson v. Coughlin, 761 F.2d 886 cert.

denied, 106 S. Ct. 879, 474 U.S. 1100,

3 ee FU ee eee ee eee ere 17

Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 1778,

ak Se ee CD AN ea eee ewer 14

17

Xiil

Rinaldi v. Yeager, 86 S. Ct. 1497 (1966) ...........

Schweiker v. McClure, 102 S. Ct. 1665 (1982) .......

Sea-Land Services, Inc. v. Gaudet, 94 S. Ct.

EE Vcr th cclah Senn anes ako Sak a ee

Sec. Cox v. State of Louisiana, 85 S. Ct. 476

SEE era iw en ward ak aia eae ware

Thomas v. Washington Gas Light Co., 100 S.

i Se EE sk a 9 bo ae Rone Ss be bce Oo

Truax v. Corrigan, 257 U.S. 312, 42 S. Ct.

+ 9). re rere eee a re ee ee ee

United States v. Mendoza, 104 S. Ct. 568

SE a4 c ON GGAC Se RS GSe rede Oe eRe EA AAAS

Williams v. Oklahoma City, 395 U.S. 458

(| ee ers aren ee eee ee eee

Williams v. Oklahoma City, 89 S. Ct. 1818

(BRE erererTerTer Ee rre Terre ere r ere ee

Withrow v. Larkin, 421 U.S. 35, 95 S. Ct.

a eee 6 6h os. re

Zenith Radio Corp. v. Hazeltine Research,

OE GP a Gas SUED Soe eae cee ewe nes

para

.

~_—a

24

79

am!

oy)

oll

XIV

Page

STATE CASES

Abbott Laboratories v. Gravis, 470 S.W.2d 639

0 A a re Se Se 9

Beard v. Graft, 801 S.W.2d 158 (Tex. App.San

Amomeo (FFU) 5 kos 4 dee eee eee 10

Citizens State Bank v. Caney Investments, 746

>. Wiae S77 Clem. VE) sc cena eee 8, 23

Crampton v. Dep't of State, 395 Mich. 347,

233 M.W.28 Son CIP Fa) . Vans eae eae anaes 14

Davis v. City of San Antonio, 752 S.W.2d 518

(Hon. 1908) .. k.vs cee een eee ee 19

Fergurson v. Fergurson, 338 S.W.2d 945 (Tex.

| I ira ey egy 5, 8

Gentry v. Credit Plan Corporation of Houston,

548 S.Wae S7i COUR. RR ree cc gwanecisesssenns 8

Houston-American Finance Corporation v.

Travis, 343 S.W.2d 323 (C.A. Tex.--Dallas

SGD) wee es hd eee ye ee ee ee 20

Hunt Production Co. v. Burrage, 104 S.W.2d 84

(CA. Tenement Bate cs. cakn ce ees 25

Inpetco, Inc. v. Texas American Bank, 729

3. Wie SO COR. ORT 5k dae ee ee eee ees 4,19

LeCroy v. Hanlon, 713 S.W.2d 335 (Tex. 1986) ........ 21

XV

Page

Matthews Const. Co., Inc. v. Rosen, 796

er 9, 10

Murray v. Milner, 118 Mich. App. 352, 325

N.W.2d 422 (1982), rev'd, 419 Mich. 872,

ee a as da 6 ae 4 6 oe se 8 14

Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984) ........ 21

Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.

ES EE rere ee 19

Salvaggio v. Brazos Cty. Water Control, 598

eae 18

Secrest v. Secrest, 649 S.W.2d 610 (Tex.

eee eb chsh evs cersseseues 26

Starnes v. Holloway, 779 S.W.2d 86 (Tex.

ee ee ae 16

Strong v. Pontiac Gen. Hosp., 419 Mich. 872,

| rr 14

Tarango v. Liberty Mut. Fire Ins. Co., 823

S.W.2d 717 (Tex. App.El Paso 1992) ........... 10

Trans-State Pavers, Inc. v. Haynes, 808

S.W.2d 727 (Tex. App.Beaumont 1991) ......... 16

Waters-Pierce Oil Co. v. State, 106 S.W. 326

ek ko po ev ka betes ss 23

Weaver v. Southwest National Bank, 813 S.W.2d

a con ck se eke eh ee 19

XVI

Page

Williams v. Khalaf, 802 S.W.2d 651 (Tex.

NN See aia hve he aoe A cee a ee ee 19

STATUTES

U.S. Const. amend. 5 ....... 2, 14, 15, 16, 17, 18, 22, 26, 29

U.S. Const. amend. 14 2, 8, 14, 15, 16, 17, 18, 22, 26, 29

ye USS. & Uses. oe UG. © ROE wv nc ss co eases 2

; Xe OM OURS OF eee eee eee ee 2 Vi. 13, 18, 22, 2

Wak, SE, I RS 1S a 5 so ee ces 2, 11, 15, 16, 18, 22, 26

, Re USE CU erry are rrrers area res ae

Th EE ORS EST 3 hs ok ek a. Be Pe ae oe

ek, Sa, GE 6 i'n a ks oss eee aka en 2, £2

Tex. Civ. Prac. & Rem. Code Ann. § 51.014(1)

LN GE, SUD ke eA ew 6 aes Wad eee 4, 20

Texas Election Code Title 15 Chapter 251 §

POC ee Oe ee Ue ena Seo ko eb 2, 11,

30

XVil

Page

MISCELLANEOUS

Anthony Champagne, Campaign Contributions in

Texas Supreme Court Races, 17 Crime, Law

& Socel Chamee 91,91 (IFFE) «ee eee 14

Banner, Disqualifying Elected Judges from

Cases Involving Campaign Contributors, 40

Stanford Law Review 449 ............220005- 14

Black’s Law Dictionary, Sth Edition,

| Et Le Tee PETE ee Te Te 11

Carlson, Mandatory Supersedeas Bond

Requirements: A Denial of Due Process

Rights?, 39 Baylor L. Rev. 29 (1987) ........... 21

Hill, The Texas Plan: Merit Selection of

Judges in Committee of 100, The Texas

Pian: Merit Selection of Judges (1986) ......... 14

Jackson & Riddesperger, Money and Politics in

Judicial Elections: The 1988 Election of

the Chief Justice of the Texas Supreme

Court, 74 Judicature 184 (1991) .............. 14

Schotland, Elective Judges’ Campaign

Financing: Are State Judges’ Robes the

Emperor’s Clothes of American Democracy,

2 Journal of Law and Policy 57 (1985) ......... 14

The Ultimate Injustice: When a Court

Misstates the Facts, 11 Cardoza Law

Se Cee CE © wwe da koe ken 6S ee eee 28

XViil

Page

EE OE raga bg eee a OW ee ee ew be ae 10

NS ci b's a CAR ee ee EERE TER TRE ES 20

O&A rr ae Cree retiree 20

| gt renner Farariare traci 4 19, 20

Pr 5-058 V be oe Ce eee ee ee 19, 20

Sh 6 5G) NKR RE CAE eae 9, 10, 20

1203S Texas Bar Journal, Dec. 1967 ........0 cc ceees 24

1207 Texas Bar Journal, Dec. 1987, footnote 47 ......... 21

32 South Texas Law Review 131-135 ............... 10

75 Corpus Juris Secundum 692 § 29 ..............-. 24

NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

BRUCE B. SCHWAGER, et al.,

Petitioners,

v.

TEXAS COMMERCE BANK, N.A., et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF TEXAS

PETITION FOR WRIT OF CERTIORARI

PRAYER

Petitioners respectfully request that a Writ of Certiorari issue

to review the Orders of the Texas Supreme Court in this case.

OPINIONS/ORDERS BELOW

The Order of the Texas Supreme Court, upon Petitioners

Motion for Rehearing, was decided Oct. 28, 1992 (Appendix

“C”). The Order of the Texas Supreme Court upon Application

For Leave To File Application For Writ Of Error was entered

Sept. 9, 1992 (Writ Denied). (Appendix “B”). The Opinion of the

x,

Texas Court of Appeals was entered March 12, 1992. (Appendices

“D” & “Y”). The Opinion of the Ist Court of Appeals was entered

Feb. 24, 1992 (striking 42 of 44 Points of Error) (Appendix “V”).

The Judgment of the Harris County District Court was entered on

12-8-89. (Appendix “O”). The judgment in Case #86-07376 was

entered on Oct. 14, 1986 (Appendix ““W.”

JURISDICTION

The Order of the Texas Supreme Court overruling Petitioners’

motion for rehearing was entered on 10/28/92. This [Petition for

Certiorari is within 90 days of that date. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1257. 28 U.S.C. § 2403(b) may

be applicable. Issues presented in this petition have been previously

submitted to the Texas Ist Court of Appeals and/or the Texas

Supreme Court.

CONSTITUTIONAL PROVISIONS INVOLVED

The 5th and 14th Amendments to the U.S. Constitution, Art. |

§§ 3, 13, 14 & 19, and Article 5 § 8 of the Texas Constitution.

Texas Civil Practices & Remedy Code Ann. § 51.014(1) Vernon

Supp. 1992. (Appendix “U”’). Texas Election Code Title 15 Chapter

251 § 251.003. Appendix “S.”

PRELIMINARY STATEMENT

The Fourteenth Amendment speaks of “property” generally.

And, under our free-enterprise system, an individual's choices in

the marketplace are respected, however unwise they may seem to

someone else. It is not the business of a court adjudicating due

process rights to make its own critical evaluation of that choice and

protect only the ones that by its own lights are necessary. Fuentes

v. Sherin, 92 S. Ct. 1983, 1999 (1972).

Middle-class Americans who have been wrongfully denied their

constitutional right of liberty and property are just as entitled to

access to this Court as an habitual criminal. Middle-class Ameri-

cil

re.

cans of any color or creed who have been stripped of their dignity,

liberty or property and forever precluded from owning and enjoying

property are as devastated as a habitual criminal would be having

to spend time incarcerated. Neither case should be allowed to exist

Petitioners pray that the U.S. Supreme Court ar least review their

Petition for Writ of Certiorari and issue an opinion.

This Petition for Writ of Certiorari is made to correct the

MANIFEST INJUSTICE (Black’s Law Dictionary, Sth Edition,

pages 707 and 867) perpetrated on “Schwagers” by the courts of

the State of Texas. Aiso, the Petition gives the U.S. Supreme Court

the opportunity to show voters in Texas that it has the courage and

conscience to reverse an unjust ruling (Sept. 9, 1992). Recent

articles in the Houston Chronicle and Post have indicated that the

Texas Supreme Court can be purchased by large campaign

contributions from banks, insurance, and other large corporations.

(Appendices “I,” “J” & “K’’).

¢

U.S. Supreme Court Justice Sandra Day O’Connor has stated

that her home state of Arizona had changed from partisan selection

to an appointment/merit election and that the quality of the

judiciary had improved 100 percent. Justice O’Connor said that this

change also solved the need for campaign contributions from

attorneys. Appendix “K-3”.

As one of the largest banks in the State of Texas, “TCB” is a

respondent in this case and is represented by Baker & Botts, one

of the largest defense law firms in Texas. A once-in-a-lifetime

opportunity existed for the Texas Supreme Court to show the world

that there is equal protection under the law for a citizen of the State

of Texas regardless of their status.

in the letter from the Texas Supreme Court which was NOT

SIGNED by any of the sitting Judges of this Court or any Judge

for that matter, the notation was made “Writ Denied.” (Appendix

“B”). These two words destroyed the lives of two upright, long-

term citizens of the State of Texas. No opinion was issued by the

Texas Supreme Court to support its erroneous decision. The lack

of a Judge’s signature and an opinion to support “Writ Denied”

tends to support the accusations made about the Texas Supreme

Court’s refusal to equitably dispense justice. Appendix “I”.

i

It is evident from the actions of the Texas Supreme Court that

it did not issue an opinion to support its ruling as there was not a

just, fair, equitable and impartial argument to be made to support

“Writ Denied.” The court also violated its mandate to correct

rulings that if left standing would constitute a serious departure

from the established law or introduce a doctrine violative of

fundamenta! principles. 1203 Texas Bar Journal, Dec. 1987.

It is incredible that the Texas Supreme Court has ruled that the

lower courts have made errors but the “Schwagers” did not matter

enough to have the judgment against them reversed or that the

issues were not important to the jurisprudence of the State of

Texas. Certainly, JURISDICTION ic a FUNDAMENTAL

PRINCIPLE.

The admission of error by the Texas Supreme Court, without

a special opinion, will only create the problems similar to those

created by the court’s ruling in /npetco. 32 STL 131-135 South

Texas Law Review. THE SANCTITY OF FINAL JUDGMENTS

MUST BE PRESERVED. Voters have the right to know if a

judgment in their favor or against them is final or not. The final

judgment issued in favor of “Schwagers” on Oct. 14, 1986, Case

#86-07376 (Appendix “W”, was ruled not final SIX (6) YEARS

LATER by Justice Murray Cohen, First Court of Appeals on

March 12, 1992. Appendix “‘Y-5”.

The Texas Supreme Court's ruling has only had the effect of

justifying trial court judge Don Wittig’s statement prior to trial that

he was not going to let the “Bank” lose the case. (Motion for Sanc-

tions and Gag Order Ist Court of Appeals 8-22-91). This judge

knowingly allowed perjury to be committed in his court, and

allowed other wrongful acts as demonstrated by documents

submitted in the First Court of Appeals and the Texas Supreme

Court. The Supreme Court of Texas has also confirmed the action

of Appellate Court Judge Murray Cohen who should have recused

himself “sua sponte” as he was a personal friend of one of the

parties to this action (H. Resnick). Further, Justice Cohen usurped

the authority of the Texas Supreme Court and the State Legislature

by deciding which Rules of Appellate Procedure are valid and

which should be disregarded so as to deny Appellants their

’

in

constitutional nght of appeal. (Ruling Feb. 24, 1992 and March 12,

1992). (Appendices “V” and “Y”). These rulings struck 43 of

Petitioners’ 44 points of error for procedural defects.

It was unconscionable for Judge Cohen to state in his opinion

(Appendix “Y-3") that breach of fiduciary duty was not tried in

Case #86-07376. The record clearly and irrefutably shows that

breach of fiduciary duty was tried. The trial judge Michael O’Brien

in Case #86-07376 stated that breach of fiduciary duty was tried.

At the trial of Cause #86-07376 on July 22, 1986 the trial judge,

Michael O’Brien, stated the following: S.F. 102 “Again I think

your argument here goes to that Breach of Fiduciary Duty

Argument.” S.F. 104. He’s alleging you breached your fiduciary

by the General Partner unilaterally changing the terms of the

lease that exists between the two entities. Whether you had the

power to do it is a legal interpretation for me based on the

evidence.” The Ist Court of Appeals was required to review the

pleadings and evidence in Case #86-07376 to determine if the

judgment was final. Fergurson v. Fergurson, 338 S.W.2d 945, 946,

947 (Tex. 1960). This duty was clearly shirked by the Ist Court of

Appeals and the Texas Supreme Court. '

STATEMENT OF THE CASE

This lawsuit involves a conspiracy between TCB and the

Limited Partners of B.B.M.M., Ltd. to defraud the General Partner,

Bruce B. Schwager of his 50% interest in the Partnership. Appen-

dix “T.”

These claims were made against TCB and the Limiteds in the

TRO obtained on March 27, 1987 by Bruce B. Schwager. “Schwa-

gers” were the true Plaintiffs in the case before the trial court in

Case #87-14551 (consolidated case) as they were in Case #86-

‘Bruce Schwager was tned for breach of fiduciary duty allegedly committed

in January of 1986 at the trial of Case #86-07376 in July of 1986. After all issues

of law and fact were submitted, he was found mot guilty. He was retned for this

breach of fiduciary duty during the trial in November of 1989 (87-14551) and

found guilty.

’

a

07376. Schwager was not only unable to obtain a judgment against

TCB and the Limiteds, but sustained a judgment against them in

favor of TCB for approximately $775,000 and in favor of the

Limiteds for approximately $1,300,000. This was a reprehensible

outrage based on the facts and law of this case which were not

ruled on by the First Court of Appeals and the Texas Supreme

Court. TCB had no standing to sue Schwager after it breached the

contract by wrongfully accelerating the Promissory Note and the

Limiteds breached the Partnership Agreement by not making .

payments as required in January 1987. Appendices “L-3” & “E-3.”

At the hearing held on March 9, 1987, the Limited Partners’

attorney, Joseph Cohen, stated: “The investors, Limited Partners are

not in position financially to invest or contribute any additional

funds to the partnership at this time because of the uncertainty in

the economy and the lack of a prospective purchaser at the present

time for the partnership assets, and because of that they will not be

making any additional contributions to the partnership.” Note: No

claims of any wrongdoing by Bruce B. Schwager were made as

a reason for stopping contributions. This case tumed on the

alleged secret amendment to the lease, an issue that was thoroughly

litigated in Case #86-07376, a trial held in July of 1986 which

included the nghts of TCB on this issue. (S.F. Hearing July 14,

1986 Testimony of Steve Smith, pp. 70-73). These four pages of

testimony only pertained to the changes in the lease. See also

statements made by Judge O’Brien “P-6” this document. Once the

jury determined that Schwager committed wrong (breached contract

and fiduciary duty) in January 1986 (Jury Issue #22 Tr. 1243),

anything that happened after that point would be ruled against

Schwager. Breach of contract and breach of fiduciary duty were the

grounds for the requested dissolution of the Partnership by the

Limiteds in the 1986 case. (Appendix “P”). The court stated in the

judgment in Case #86-07376 (Appendix “W”’) the following: “A

jury tnal having been waived and all issues of fact and law having

been submitted to the court and the court having considered the

evidence: issues the following judgment: 1. It is ordered that the

request of Defendants for a dissolution of B.B.M.M., Ltd. is

denied.”

’ ae

se

The judgment against “Schwagers” was the direct result of the

violation of law allowed by the trial court judge and is void for

lack of jurisdiction. The following are the errors committed by the

trial judge, Don Wittig.

1. Trial judge erred by consolidating Case #86-07376 with Case

#87-14551 and retrying Case #86-07376.

2. Trial judge erred by holding a materially unfair trial.

3. Trial judge erred by allowing jury issue on fraudulent induce-

ment.

4. Trial judge erred by refusing to submit jury issues on good

faith, wrongful acceleration, forgery, conspiracy, breach of

contract. (Jury could only conclude Bruce Schwager was

lying).

5. Trial judge erred by denying that, as a matter of law, TCB had

committed usury.

6. Trial judge erred by refusing to admit documentary evidence of

fraud and conspiracy. Perjury was thus committed.

7. Trial judge erred by allowing a “Judge” to testify for TCB and

Limiteds while refusing to allow a “Judge” to testify for

Schwagers.

8. Trial judge held impermissible bias and prejudice.

9. Trial judge entered improper judgment.

10. Trial judge etred by denying Schwager’s constitutional right to

jury trial on contempt.

11. Trial judge erred by denying Schwager’s directed verdict on no

evidence and insufficient evidence.

12. Trial judge erred by ruling that Bruce B. Schwager was guilty

of conversion.

Note: The above Points were contained in Appellants’ Opening

Brief 6/17/91 filed in the Ist Court of Appeals.

The Texas Supreme Court had an inescapable duty to make an

independent evaluation of Petitioners’ Application for Writ of

|

~ o

Error. Encompassed in this evaluation is a review of the entire

record which includes the Petitioners’ Application for Writ of Error

and Petitioners’ Reply Brief. “It is mandatory that the Court review

the pleadings and evidence in determining the finality of the judg-

ment.” Ferguson v. Ferguson, 338 S.W.2d 945, 947 (Tex. 1960).

See also Gentry v. Credit Plan Corporation of Houston, 528

S.W.2d 571, 576 (Tex. 1975).

It is evident from the initial ruling made by the Texas Supreme

Court that it did not fulfill its mandate but just paraphrased

BAKER & BOTTS’ opinion made on page 44 of its Response

Brief filed 7/20/92 which states the following:

“Therefore this Application for Writ of Error presents no important

legal issue that deserves the consideration of this Court.” Why did

“TCB” expend in excess of $1,000,000 in attorneys’ fees if this

statement was true? (Motion for Sanctions and Gag Order | st Court

of Appeals 8-22-91). Clearly, this case is important to the citizens

of Texas and “Petitioners.” All persons should be equally entitled

to pursue their happiness and acquire property and enjoy property;

that they should have like access to the courts of the country for

the protection of their persons and property, the prevention and

protection of property redress of wrongs and the enforcement of

contracts; that no impediment should be interposed to the pursuit

by others under like circumstances; that no greater burden should

be laid upon one than are laid upon others. Barber v. Connolly, 5

S. Ct. 357 (1885).

When the “BANK” in Citizens State Bank v. Caney Invest-

ments, 746 S.W.2d 477 (Tex. 1988), complained about the rulings

of district and appeals courts that the appointment of a receiver

gave the trial court continuing jurisdiction over a case in which a

judgment was rendered after a conventional trial on the merits.

THE TEXAS SUPREME COURT RULED THAT THE

JUDGMENT WAS FINAL AND THE TRIAL COURT DID

NOT HAVE JURISDICTION.

HOWEVER, WHEN PRIVATE CITIZENS OF THE

STATE DEMAND EQUAL PROTECTION UNDER THE

SAME LAW, THEY ARE DENIED THEIR CONSTITUTION-

AL RIGHTS. Tex. Const. art. I § 3. U.S. Const. amend. 14.

eT |

x

The SANCTITY OF FINAL JUDGMENTS IS TO BE

PRESERVED, NOT PERVERTED. Matthews Const. Co., Inc. v.

Rosen, 796 S.W.2d 692, 694 (Tex. 1990).

In order to properly address the disagreement with the Texas

Supreme Court on the nature of the case, the following quote from

TRAP 133(a) is made: “In all cases where the Supreme Court is

not satisfied that the opinion of the Court of Appeals in all respects

has correctly declared law, but is of the opinion that the application

presents no error which requires reversal, or which is of such

importance to the jurisprudence of the state as to require correction,

the Court will deny the application with the notation “Writ

Denied.”

It is incredible that the Texas Supreme Court did not perceive

the following issues as important.

1. Jurisdiction

to

Fundamental Error

Sanctity of Final Judgment

3

4. Due Process - (Bette Schwager denied her nght to prosecute

her personal claims)

5. Jury Issues

6. Right to Have Appeal Reviewed for Merit

7. Res Judicata - (Bruce Schwager tried twice for breach of

fiduciary duty)

The Latin phrase “res judicata means that the matter has been

adjudged; a thing judicially determined; or a matter settled by

judgment. THE PRINCIPLE OF RES JUDICATA IS AN

OLD ONE FOUNDED UPON PUBLIC POLICY. Abbot:

Laboratories v. Gravis, 470 S.W.2d 639 (Tex. 1971).

Under res judicata a final judgment on the merits bans

further claims by parties or their privets on the same cause of

action. United States v. Mendoza, 104 S. Ct. 568, 571 (1984).

8. Enforcement of Final Judgment

.-.

9. Receiverships - (No receivership appointment can now be made

without making judgment interlocutory)

10. Right to Present Case First - Tex. R. Civ. P. 266 (Ist Court of

Appeals did not rule on this issue as presented by Petitioners.

Supreme Court has also failed to rule on this issue)

The Texas Supreme Court was shown in Tarango v. Liberty

Mut. Fire Ins. Co., 823 S.W.2d 717, 718 (Tex. App.—El Paso

1992), different appeals courts disagree with the interpretation of -«

the ruling “Writ Denied.” Also, this case shows that if the appeals

court feels that the matter “is of such importance to the jurispru-

dence of the state, that we interpret the Supreme Court's refusal to

grant a writ in that case to be tacit pronouncement that the general

rule will apply.” (Emphasis added). The conflict of opinion

between appeals courts, 32 STL 131-135 South Texas Law Review,

and the conflict between Supreme Court rulings require this Court

io issue a detailed opinion. See also Beard v. Graft, 801 S.W.2d

158, 173 (Tex. App.-—San Antonio 1990).

Thus, utter chaos will follow in Texas in relation to cases

involving issues on receiverships, res judicata, final judgment, etc.

was shown in Petitioners’ Application for Writ of Error, filed in the

Texas Supreme Court.

To further compound the problem, the Texas Supreme Court

stated in Mathews Const. Co., Inc. v. Rosen, 796 S.W.2d 692, 694

(Tex. 1990), that “[iJn any event our denial of the writ is NO

INDICATION that this court approved the opinion of the court of

appeals. See Tex. R. App. P. 133(a).” The preceding statement

irrefutably demonstrates that the Texas Supreme Court does not

want to be associated with the appeals court ruling. However, the

importance of the issues of this case makes this attitude irrational.

The language used in Mathews, 796 S.W.2d at 694, is much

stronger than that of Tex. R. App. Proc. 133(a).

The refusal of the Texas Supreme Court to abide by its

previous ruling has made a MOCKERY OF STARE DECISIS (to

|

i

abide by or adhere to decided cases. Black's Law Dictionary, Sth

Edition, page 1261).’

REASONS FOR GRANTING THE WRIT

1. Petitioners were denied their right to Due Process and

Equal Protection of the law and access to the Court as

required by the Fifth and Fourteenth Amendments to the

U.S. Constitution and the Texas Constitution art. I §§ 3, 13

and 19 due to the method of electing judges along with the

unlimited campaign contributions allowed. The Texas

Election Code Section 251.003 is unconstitutional. The

hundreds of thousands of dollars in campaign contributions

made by attorneys for Baker & Botts, Respondent’s law

firm, to the trial judge Don Wittig, the Ist Court of Appeals

Judge Murray Cohen and successful candidates to the

Texas Supreme Court constituted a lack of access to the

court and an obstruction of justice.

Campaign contributions are legalized bribery. (Appendix “A,

A-2”).

The issues of denial of due process and equal protection under

the law are included due to Judge Don Wittig, 125th District Court,

Judge Murray Cohen, Ist Court of Appeals and the Texas Supreme

Court Justices’ failure to disqualify themselves due to conflicts are

grounds for such a petition on United States constitutional grounds

enumerated herein.

The bias and prejudice of Judge Wittig, Judge Cohen and the

Texas Supreme Court and lack of access to a meaningful hearing

on their complaints violated Petitioners’ due process rights under

Doctrine of stare decisis imposes a severe burden on the litigant who asks

the supreme court to disavow one of its precedents, for that doctrine not only

plays an important rule in orderly adjudication, but also serves the broader societal

interests in evenhanded consistent and predictable application of legal rules. (Per

Mr. Justice Stevens with three Justices joining and three justices concurring in the

judgment). Thomas v. Washington Gas Light Co., 100 S. Ct. 2647, 2648, 2658

(1980).

ee

<2.

the Fifth and Fourteenth Amendments to the U.S. Constitution for

the courts to previde a fair and impartial tribunal.

Petitioners were denied the due process of the laws by the

failure of trial court judge Don Wittig to recuse himself due to his

bias and prejudice. Texas Court of Appeals Judge Murray Cohen

failed to disclose his personal friendship with a party, Harvey

Resnick, and disqualify himself or reject assignment when offered.

Petitioner is asserting that once the State of Texas provides a

process for the judicial review of litigation, which will result in

deprivation of property, due process demands that the decision

makers be fair and impartial. Jd. The very notion of “hearing”

under the Fourteenth Amendment assumes that the decision maker

will listen to arguments of both sides before making decisions. See

Billington v. Undernood, 613 F.2d 91 (CA 5 Ga. 1980).

Surely our constitutional safeguard against the deprivation of

property without due process is violated when a reviewing judge

may be allowed to have an interest in one of the parties before him

and make no effort to disclose the interest or disqualify himself.

Further, the large campaign contributions to the members of the

Texas Supreme Court and Judge Wittig and Judge Cohen should

have disqualified these judges from this case. How is the funda-

mental right to a fair and impartial tribunal served by turning our

backs to the implication of these facts? There can be no dispute

that the state of the facts here leaves a “taste” of impropriety.

Petitioners believe that they have and will show herein that the

judges involved in this case have not given the Petitioner their

constitutional rights of due process and equal protection of the law

as required by the Sth and 14th Amendments to the U.S. Constitu-

tion. Petitioners’ due process rights have been dismissed by the

Texas Supreme Court with two words, “Writ denied.” The Texas

Chief Supreme Court Judge Phillips adheres to Petitioners’

argument as shown in his newspaper article (Appendix “Z”) in

which, among other things, he demands a change to the method of

putting judges on the bench. In an article, “Special interests donate

most to justices, study finds,” from the Dallas Morning News,

Wednesday, Sept. 2, 1992, page 5, the Chief Justice of the Texas

Supreme Court was quoted as saying: “The way these judicial races

«ee

are funded is a problem and certainly a problem of appearance and

I agree with that.” Tom Smith, director of Public Citizens Texas

Office went on to say, “It doesn’t take a rocket scientist to figure

out what is going on here—and, if campaign contributions don’t

influence decisions some of the smarter lawyers in the state are

wasting lots of money!” Also attorney David Bragg of the Texas

Consumer Association stated “If we had the power to indict, we

would indict the system. The system is wrong, the system is bad.

The Texas Supreme Court judges who took large campaign

contributions from Baker & Botts law firm and Texas Commerce

Bank should have gone on the record and disqualified themselves

from sitting on this case. A reasonable mind would assume that the

large campaign contributions have been made to influence the

Justices of the Supreme Court, which obstructs justice and denies

a whole class of citizens open access to the court.

Any law antagonistic to the Constitution cannot stand and if

challenged will be declared invalid. It does not lie within the power

of the legislature to enact laws in conflict with the Constitution.

This Texas Election Code 251.003 is thus unconstitutional.

Appendices “A,” “I,” “J,” “K” and “Z” cleariy demonstrate the

unconstitutionality of the Texas Election Code. Even the Chief

Justice of the Texas Supreme Court Tom Phillips in his article

(Appendix “Z”) agrees that unlimited campaign contributions and

the way we elect judges in Texas is wrong. As shown in Appendix

“1,” the only way the law is going to be changed is by action of the

federal Court.

It is believed that the Federal Constitution requires that the

Texas Supreme Court be ordered to remand this case to the Texas

Court of Appeals for reconsideration by a new panel of judges who

have no secret agenda in form of any of the parties and/or attorneys

to this cause of action. In the alternative, dismiss judgment against

the Schwagers as the method of putting judges on the bench in

Texas is unconstitutional.

Over the past few years, there has been a great deal of

publicity over judicial campaign finance in Texas. Re-

formers within Texas and the media have criticized judicial

campaign finance and have issued calls for changes in the

. 14.

way judges are selected. Former Chief Justice John Hill,

for example, has been the leading advocate of merit

selection of judges in Texas. He has argued that one reason

Texas should adopt merit selection is to reduce the appear-

ance of impropriety associated with large campaign

contributions and the solicitation of campaign funds from

lawyers who practice in Texas courts.’ Those concerns

have been echoed by the media in articles in major news

magazines, newspapers, and in a “60 Minutes” television

broadcast. Academic research has also explored Texas

judicial finance, primarily as an illustration of a state with

serious problems in its system of judicial campaign

funding.*

Anthony Champagne, Campaign Contributions in Texas Supreme

Court Races, 17 Crime, Law & Social Change 91, 91 (1992).

One of the most fundamentally protected concepts of due

process is the right of a litigant to present his case before a fair and

impartial tribunal. Nebraska Press Association v. Stuart, 427 U.S.

539, 96 S. Ct. 279, 49 L. Ed. 2d 683 (1976); Withrow v. Larkin,

421 U.S. 35, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975); Peters v.

Kiff, 407 U.S. 493, 92 S. Ct. 1778, 29 L. Ed. 2d 83 (1972);

Johnson v. Mississippi, 403 U.S. 212, 91 S. Ct. 1778, 29 L. Ed. 2d

423 (1971); Strong v. Pontiac Gen. Hosp., 419 Mich. 872, 347

N.W.2d 696 (1982); Crampton v. Dep't of State, 395 Mich. 347,

235 N.W.2d 352 (1975); Murray v. Milner, 118 Mich. App. 352,

325 N.W.2d 422 (1982), rev'd, 419 Mich. 872, 348 N.W.2d 6; U.S.

Const. amends. 5, 14.

*For example, see generally, Hill, “The Texas Plan: Merit Selection of

Judges” in Committee of 100, The Texas Plan: Merit Selection of Judges (1986);

see also, Jackson & Riddesperger, “Money and Politics in Judicial Elections: The

1988 Election of the Chief Justice of the Texas Supreme Court”, 74 Judicature

184 (1991).

“Banner, “Disqualifying Elected Judges from Cases Involving Campaign

Contributors”, 40 Stanford Law Review 449 especially at 449-51 (1988);

Schotland, “Elective Judges’ Campaign Financing: Are State Judges’ Robes the

Emperor's Clothes of American Democracy”, 2 Journal of Law and Policy 57

(1985).

- 15-

Due process demands impartiality on the part of those who

function in judicial or quasi-judicial capacities. U.S.C.A. Const.

amend. 5; Schweiker v. McClure, 102 S. Ct. 1665, 1670 (1982).

Due process requires hearing by an impartiai tribunal. To comport

with due process, tribunals should avoid even appearances of

impropriety. U.S.C.A. Const. amends. 5, 14; Dirt, Inc. v. Mobile

County Com'n, 739 F.2d 1563, 1566 (1984). Campaign contribu-

tions are made with the intent of influencing the judges to whom

the contributions are made. This form transcends to an individual

or class of case. Sec. Cox v. State of Louisiana, 85 S. Ct. 476, 480

(1965). All citizens of the U.S. have the constitutional right of

access to the courts. See Bounde v. Smith, 97 S. Ct. 1491, 1498

(1977).

2. Petitioner Bette R. Schwager was deprived of her rights

and property without Due Process and Equal Protection of

the law as required by the Fifth and Fourteenth Amend-

ments to the U.S. Constitution and the Texas Constitution

art. I §§ 3, 13, 14 and 19 as she was not allowed to prose-

cute her claims and defend herself against the taking of her

property.

Fundamental requirement of due process is the opportunity to

be heard; it is an opportunity which must be granted at a meaning-

ful time in a meaningful manner. Armstrong v. Manzo, 85 S. Ct.

1187, 1191 (1965).

The Texas courts have returned to the middle ages on women’s

rights. The denial of Bette Schwager’s constitutional right of due

process and equal protection under the law because she is a woman

is unconscionable. Due process as required by both the federal and

State constitution is the law which hears before it condemns

proceeds with inquiry and renders judgment only afterwards. Trial

Court Judge Wittig threatened Bette Schwager with being shot

when he stated the following: S.F. 1693-1694. “Deputy Buffington

has informed me of some remarks coming from participants in trial.

Mrs. Schwager I know this is a tremendous emotional strain on you

but my bailiff is not liking some of the remarks you’re making. I

understand it’s a lot of pressure but try not to make comments to

- 16-

him. That upsets him and he has a 357 Magnum.” This is an

unbelievably callous remark for a trial judge to make, especially

considering the circumstances.

BETTE SCHWAGER WAS NOT A PARTY TO THE LAWSUIT

The 87-14551 judgment shows its invalidity on its face as it

States that Bette Schwager is a party on page | and assesses her

damages on page 13. (Appendix “O”). The court did not have

jurisdiction over Bette Schwager as it did not allow her to bea .

party to this lawsuit. Bette Schwager had her own cause of action

against TCB and the Limited Partners and had a constitutional nght

of due process to be heard on her claims. TCB had to sue Bette

Schwager to obtain her interest in the community property, as the

community property was part of the suit. TCB knew that Bruce

Schwager was married at time of loan as shown by Homestead

Agreement and they were required to have her sign assignment of

note. The Jow note was community property and was under the

control of Bette Schwager. Appendix “N.”

Bette Schwager was never served by TCB, and their pleadings

(Appendix “P”) do not show any causes of action against her.

When there is no valid service of process against a defendant, the

trial court lacks jurisdiction. Trans-State Pavers, Inc. v. Haynes,

808 S.W.2d 727, 728, 735 (Tex. App.—Beaumont 1991). Accord-

ingly, the lack of jurisdiction renders the judgment void. A void

judgment’s nullity cannot be waived. Starnes v. Holloway, 779

S.W.2d 86 (Tex. App.—Dallas 1989).

Appendix “N.”

Judgment of court having no jurisdiction is void. Estin v. Estin,

68 S. Ct. 1213, 1218 (1948).

Bette Schwager was not allowed to be a party to the lawsuit by

trial judge Don Wittig. (Appendix “E”). Bette Schwager was denied

her constitutional right of due process and open courts by refusing

to allow her to prosecute her claims and defend herself against the

taking of her property. Tex. Const. art. I §§ 13, 19. (U.S. Const.

amends. 5, 14). Bette Schwager’s claims were breach of good faith,

breach of contract, mental anguish, salary, punitive damages and

attorney fees. (Appendix “N-1”).

aie nieinaienmamnaieaaeiaeeitel

oe

Bette Schwager was never served by process by Respondents

in this lawsuit or allowed to be a party.”

In its simplest formulation, due process requires an opportunity

to be heard in a meaningful time and in a meaningful manner.

U.S.C.A. Const. amends. 5, 14; Patterson v. Coughlin, 761 F.2d

886, cert. denied, 106 S. Ct. 879, 474 U.S. 1100, 886 L. Ed. 2d

916. What is incredible about this case is that Bette R. Schwager

was denied ANY hearing of any kind and that the Ist Court of

Appeals did not even address this point of error in their opinion “

(Appendix “Y”). The Texas Supreme Court ruling is even more

incredible as they recognized this problem by not agreeing with the

Ist Court of Appeals with the statement, “Writ Denied,” but would

not remand the case for a new trial.

The essence of Due Process is fundamental fairness. U.S.C.A.

Const. amend. 5; Crest v. Lane, 745 F.2d 476, cert. denied, 105 S.

Ct. 2146, 471 U.S. 1068, 85 L. Ed. 2d 503. The fundamental

purpose of Due Process Clause is to allow aggrieved party an

opportunity to present his case and to have its merits fairly judged.

U.S.C.A. Const. 5, 14; Okison v. Tolley School Dist. No. 25

Renville County State of N.D., 760 F.2d 864, reversed, 766 F.2d

378. Due Process is the nght to a hearing by an impartial tribunal.

See Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d

287 (1970). The fundamental requisite of due process of law is the

opportunity to be heard and hearing must be at meaningful time

and in meaningful manner. U.S.C.A. Const. amend. 14; Goldberg

v. Kelly, 90 S. Ct. 1011, 1020 (1970). While procedural due

process is flexible and variable in different situations, complete

absence of amy due process at all cannot be justified under the

guise of flexibility. U.S.C.A. Const. amends. 5, 14; Craig v

Carson, 449 F. Supp. 385, 390 (1979). The absence of some form

of those basic protections or procedural due process is a fatal

deficiency. North Ga. Finishing, Inc. v. Di Cheng, Inc., 419 U.S.

‘One is not bound by a judgment in personam resulting from litigation in

which he is not designated as a party or to which he has not been made a party

by service of process. Zenith Radio Corp. v. Hazeltine Research, Inc., 89 S. Ct.

1562, 1569 (1969).

|

« 18.

at 607, 95 S. Ct. at 722, 42 L. Ed. 2d at 757. The fundamental,

indispensable protections of procedural due process are (1) a

hearing (2) before an impartial decision maker, after (3) adequate

notice of the reason for the deprivation with (4) an opportunity for

the individual to present his case. Mathews vy. Eldridge, 424 U.S.

at 333, 96 S. Ct. at 901, 47 L. Ed. 2d at 32.

Some form of hearing is required before owner is finally

deprived of a protected property interest. The decisions of this

Court have emphasized time and again the Due Process Clause

grants the aggrieved party the opportunity to present his case and

have its merits fairly judged. Logan v. Zimmerman Brush Co., 102

S. Ct. 1148, 1156 (1982). Court has no power without personal

jurisdiction. Zenith Radio Corp. v. Hazeltine Research, 89 S. Ct.

1562, 1569 (1969). Judgment entered against Bette Schwager is

void for lack of jurisdiction.°

3. Petitioners were denied their constitutional right of Due

Process under the Fifth and Fourteenth Amendments to the

Constitution of the United States and the Open Courts

Provision of the Texas Constitution art. I §§ 3, 13 and 19

by not being afforded a fair opportunity to obtain a

meaningful appeal on the merits of the case as the court of

appeals struck 43 of Appellants’ 44 points of error for

procedural defects.

Appendix “‘M” conclusively demonstrates the invalidity of the

order striking points of error (Appendix “V”). The order itself

establishes its own invalidity.

An appellant should be accorded a very reasonable and liberal

interpretation of the rules and requirements of appellate review.

Salvaggio v. Brazos Cty. Water Control, 598 S.W.2d 227, 229

(Tex. 1990). The U.S. Supreme Court has stated that the rules of

procedure “should be interpreted to prevent the loss of the right of

appeal, not to facilitate loss.” Bankers Trust Co. v. Mallis, 435 U.S.

381, 386 (1978).

Void judgment may be collaterally impeached. Fay v. Noia, 83 S. Ct. 822.

841 (1963).

’

=

The ruling issued on Feb. 24, 1992 did not take into consider-

ation Appellants’ Response Brief filed on Feb. 13, 1992. The

complaints raised by TCB in its brief were directly answered by

Appellants in their Response Brief. Many of the complaints made

about the briefing rule violations of Appellants by the Appeals

Court are not valid due to the content of Appellants’ response brief.

Local Rule 1.74(c) of the First Court of Appeals states that

“supplemental briefs may be filed without leave of Court only if no

new points of error are raised.” Appellants did nor raise any new .

points of error in their response (supplemental) brief.

The Ist Court of Appeals should have made the detailed objec-

tions which it made Feb. 24, 1992 on either 5/16/91 or 8/8/91.

Clearly, Appellants believed that their brief had been approved and

that a fair evaluation of their points of error would be forthcoming.

The striking of 42 points out of 44 was, in effect, a violation of the

spirit and intent of TRAP 83, as well as the Supreme Court ruling

in Inpetco, Inc. v. Texas American Bank, 729 S.W.2d 300 (Tex.

1987).

Certainly a liberal construction of the rules would have

precluded the Appeals Court from the action it took in striking 42

of Appellants’ 44 points of error. This was in effect striking the

entire brief of Petitioners, as Point of Error #1 is a fundamental

error point, and #4 was not reviewed for substance.

The Rules of C:vil and Appellate Procedure unquestionably

show that the rules are to be construed liberally.

TRCP #1: Rules are to be given liberal construction.

TRAP 74(p): Briefing rules are to be construed liberally.

The Supreme Court of Texas has emphasized liberal con-

struction of the briefing rules. Pool v. Ford Motor Co., 715 S.W.2d

629 (Tex. 1986); Davis v. City of San Antonio, 752 S.W.2d 518,

521 (Tex. 1988); Williams v. Khalaf, 802 S.W.2d 651 (Tex. 1990);

Weaver v. Southwest National Bank, 813 S.W.2d 481, 482 (Tex.

1991). Form should not be elevated over substance.

: F

TRAP #83 requires that Appellants should have time to correct

irregularities in their brief prior to the judgment being affirmed.

There were no specific complaints made about Appellants’ brief

that were not corrected prior to the Appeals Court’s Order (by fax)

of Feb. 24, 1992. Contrary to the Appeals Court’s statement on

page 2 of its Order, Appellants never had the opportunity to correct

any specific deficiencies that may have existed as set out in the

Order of Feb. 24, 1992. A Rule permitting brief to be amended or

supplemented at any time is to be liberally construed. Houston-

American Finance Corporation vy. Travis, 343 S.W.2d 323, 326

(C.A. Tex.--Dallas 1960). Supplemental briefs are allowed per

TRAP 74(0). The right of appeal is one provided by statute.

The last clause of Tex. R. App. P. 74(0) states:

“Amendment or Supplementation. Briefs may be amended

or supplemented at any time when justice requires upon

such reasonable terms as the court may prescribe, and if

the court shall strike or refuse to consider any part of a

brief, the court shall on reasonable terms allow the same

to be amended or supplemented.” (Emphasis added).

The adequacy of the Schwagers’ June 17, 1991 brief turns on

several simple questions--whether briefing rules are to be construed

liberally, whether an appeals court is required to review at least one

S.F. reference to see if rules are complied with, whether response

brief adding no new points of error is to be reviewed by an appeals

court, whether appellants are entitled to re-brief when specific

complaints to brief are made, or whether an appeals court can use

the rules offensively to deny nmght to appeal.

Rule 74(f) states that “repetition or prolixity of statement or

argument must be avoided.” Rule 74(o) states as follows: “Briefs

may be amended or supplemented at any time when justice requires

under such reasonable terms as the court may prescribe and if the

court shall strike or refuse to consider any part of a brief, the court

shall on reasonable terms allow the same to be amended or

supplemented.” The briefing rules are subject to Tex. R. App. P.

74(p) which provides as follows:

<a.

Briefing Rules to be Construed Liberally. The purpose of

briefs being to acquaint the court with the points relied

upon, the manner in which they arose, together with such

argument of facts and law as will enable the court to

decide the same, a substantial compliance with these rules

will suffice in the interests in justice; but for a flagrant

violation of this rule the court may require the case to be

rebriefed.

Measured against these standards, the Schwagers’ June 17,

1991 brief is not inadequate, especially when Schwagers’ Response

Brief is included. The Schwagers’ brief is certainly not so inade-

quate as to warrant the severe sanction imposed by the court of

appeals. Accordingly, the court of appeals erred in finding a

“waiver” of the Schwagers’ second, third, and fifth through 44th

points of error.

Note: PETITIONERS’ (APPELLANTS’) SUPPLEMENTAL

BRIEF FILED FEB. 13, 1992 WAS ALSO NEVER REVIEW-

ED BY THE FIRST COURT OF APPEALS.

The following is a quote from the Texas Bar Journal, Decem-

ber 1987, p. 1207, footnote 47:

While the due process provision of the United States

Supreme Court does not guarantee a litigant a nght of

appeal, McKane v. Durston, 153 U.S. 684 (1894), the open

courts provision of the Texas Constitution does. LeCroy v.

Hanlon, 713 S.W.2d 335, 339 (Tex. 1986); Nelson vy.

Krusen, 678 S.W.2d 918 (Tex. 1984). In order for this

right of appeal to satisfy the requirements of due process,

it must afford litigants a fair opportunity to obtain a

meaningful appeal on the merits. Evitts v. Lucey, 469 U.S.

387 (1985); Armstrong v. Manzo, 380 U.S. 545 (1965). See

Carlson, Mandatory Supersedeas Bond Requirements: A

Denial of Due Process Rights?, 39 Baylor L. Rev. 29

(1987). An appeal may of course be regulated by procedur-

al requirements. Logan v. Zimmermann Brush Co., 455

U.S. 422 (1981). However, procedural limitations may not

irrationally or arbitrarily impede access to the court

because the right of appeal that is granted by a state must

|

ee.

be kept clear of any “unreasoned distinctions.” Williams v.

Oklahoma City, 395 U.S. 458, 459 (1969). Adjudged by

these standards, an argument could be made that review of

some errors but not others which might require reversal,

denies an effective appeal in violation of due process rights

guaranteed by the Texas Constitution. Tex. Const. art. I,

§ 13. On the other hand, an equally persuasive argument is

that the petitioner has had full appellate review before the

court of appeals and duplicative review of all issues is not

required.

The preceding unquestionably shows that Petitioners were

denied their constitutional right to appeal. The fact that the First

Court of Appeals did not review 43 of Petitioners’ 44 points of

error made it mandatory for the Texas Supreme Court to

remand this case to the appeals court for review of the 43

points stricken for procedural defects or remand to a district

court for a new trial. (Appendices “V" & “Y”).

Once a state establishes avenues of appellate review such

avenues must be kept free of unreasoned distinctions that can only

impede open and equal access to the courts. Williams v. Oklahoma

City, 89 S. Ct. 1818, 1819 (1969); Rinaldi v. Yeager, 86 S. Ct.

1497, 1500 (1966). Equal protection of the law does not exist if the

kind of an appeal a man enjoys depends on the amount of money

he has. Douglas v. People of State of California, 83 S. Ct. 814, 815

(1963). Petitioners were entitled to a review of their case on its

merits. Logan v. Zimmerman Brush Co., 102 S. Ct. 1148, 1156

(1982).

4. Petitioners were denied their right to Due Process and

Equa! Protection of the law as required by the U.S. Consti-

tution Fifth and Fourteenth Amendments and the Texas

Constitution art. I §§ 3, 13 and 19 by the Courts of Texas

not applying the law equally to all citizens of the U.S. and

the State of Texas. Petitioners were denied the benefit of

the final judgment entered in their favor on Oct. 14, 1986.

(Appendix “W”) by Ist Court of Appeals ruling on March

12, 1992 (Appendix “Y”). Petitioners were denied their

|

a.

constitutional rights by the Texas courts assessing judgment

against them without jurisdiction.

In Leis v. Flyn, 439 U.S. 438, 441, 99 S. Ct. 698, 700 (1979),

this Court held that rights “derived from statute or legal rule” under

State law are protected by the Fourteenth Amendment.

Petitioners submitted to the Texas Supreme Court an Applica-

tion for Writ of Error, 5/21/92, a Reply Brief, 8/3/92 and a Motion

for Rehearing, 9/24/92. These documents contained seven U.S. «

Supreme Court cases, 55 Texas Supreme Court cases and one

Alaska Supreme Court case in support of their arguments against

the action of the Texas 125th District Court and the Ist Court of

Appeals. (Appendix “H”). These cases were ignored by the Texas

Supreme Court.

The ruling in this case by the First Court of Appeals dramati-

cally changed the existing law pertaining to “Jurisdiction” and

“Final Judgments.” In a far-reaching opinion (Appendix “Y”), the

Court of Appeals determined “sua sponte” that the preceding 85

years of Texas Supreme Court rulings on Final Judgments were

invalid. See Waters-Pierce Oil Co. v. State, 106 S.W. 326, 329

(Tex. 1907); Citizens State Bank v. Caney Investments, 746 S.W.2d

477, 478 (Tex. 1988). The First Court of Appeals (Justice Cohen)

stated that the “Final” Judgment entered in Case #86-07376 by the

sitting Judge Michael O’Brien of the 125th District Court was not

a Final Judgment (Appendix “‘Y-5”’).

The Appeals Court assumed jurisdiction of this case which it

did not have and committed fundamental error.

Judge O’Brien, trial judge in Case #86-07376, clearly demon-

strated the finality of the judgment issued on Oct. 14, 1986 as

shown in Appendix “G.” The following docket entries were made

by Judge O’Brien in Case #86-07376:

7-14-86 - Case Came On For Trial before Court as Set by Court

Order All Parties appeared and announced ready for trial. All issues

of law and fact were submitted to court.

7-22-86 Testimony concludes court hears closing arguments -

matter taken under advisement

~

10-14-86 Final Judgment Signed

The following statements were made by Judge O’Brien at Hearing

on May 26, 1987. Appendix “G.”

1. The 1986 lawsuit is over and final

2. The only thing I have any continuing jurisdiction over in aid

of my judgment is a receiver

List of documents showing finality of 1986 judgment is found in «

Appendix “F.”

Judgment of court lacking jurisdiction is void. Where court of

competent jurisdiction has entered final judgment on merits parties

and their privies are bound not only as matter offered and received

to sustain or defeat claim or demand but as to any other admissible

matter which might have been offered. Sea-Land Services, Inc. v.

Gaudet, 94 S. Ct. 806, 811 (1974). Burnham v. Superior Court of

California, 110 S. Ct. 2105, 2109 (1990). Petitioners have com-

plained about the lack of jurisdiction in the District, Appellate and

Supreme Court of Texas. Schwagers now make this plea in the

Court of Last Resort, the U.S. Supreme Court. The Ist Court of

Appeals ruled that the appointment of a receiver to sell the property

made the judgment interlocutory. This ruling is incorrect as shown

herein. Appendix “R.” Appointment of a receiver to enforce

judgment does not make judgment interlocutory. 75 CJS 692 § 29.

A judgment entered after a conventional trial on the merits is NOT

interlocutory.

The Texas Supreme Court’s refusal to issue an opinion

upholding its previous rulings, as shown herein, is a serious

departure from existing law and principles. 1203 Texas Bar Journal

Dec. 1987.

Appendix “L” sets out in detail a litany of issues and rulings

that were ignored by the courts of Texas, which denied Petitioners

Due Process and Equal Protection of the law. These were forgery,

conspiracy, good faith, breach of contract, mental anguish,

wrongful acceleration, etc. The preceding issues were not submitted

to the jury over the strenuous objections of Schwagers.

es.

Due Process is secured by laws operating on all alike and not

subjecting the individual to the arbitrary exercise of the power of

government unrestrained by the established principle of primal

right. Leeper v. State of Texas, S. Ct. Rep. 462-468 (1890). Equal

protection of the law does not exist if the kind of an appeal a man

enjoys depends on the amount of money he has. Douglas v. People

of State of California, 83 S. Ct. 814, 815 (1963). The Equal

Protection Clause requires more of the statute than nondiscriminato-

ry application within the class it establishes and also, imposes

requirement of some rationality in the nature of ciass singled out.

Rinaldi v. Yeager, 86 S. Ct. 1497, 1499 (1966).

“The court may appoint receiver as means of properly enforc-

ing its judgment and in such proceeding validity of original cause

of action cannot be questioned to frustrate or obstruct enforcement

of judgment. Rev. St. 1925 arts. 1914, 2217, 7391; Const. art. 5

§ 8.” Hunt Production Co. v. Burrage, 104 S.W.2d 84, 87 (C.A.

Texas—Dallas 1937). The preceding further shows the manifest

injustice perpetuated on Schwagers by the courts of Texas.

Justice Cohen of the First Court of Appeals on March 12, 1992

ruled that the judgment rendered in Case #86-07376 on Oct. 14,

1986 (Appendix ““W”) was not final. The basis for this ruling was

that a receiver was appointed. The authority being Tex. Civ. Prac.

& Rem. Code Ann. § 51.014(1) (Vernon Supp. 1992). Appendix

“U.” This statute does not state that every order appointing a

receiver is interlocutory, nor does it even imply it. Justice Cohen

did not give ANY CASE LAW TO SUPPORT HIS POSITION,

as there is none. It was the OBLIGATION OF THE TEXAS

SUPREME COURT to deliver an OPINION either agreeing or

disagreeing with his impression.

Petitioners pled that the Limited Partners’ claims against Bruce

Schwager were barred by COLLATERAL ESTOPPEL’ and RES

“The Supreme Court and other courts have explained that res judicata and

collateral estoppel relieve parties of the cost and vexation of multiple lawsuits,

conserve judicial resource and by preventing inconsistent decisions, encourage

reliance on adjudication. Allen, supra, 449 U.S. at 94, 101 S. Ct. at 414-15" Drum

v. Nasuti, 648 F. Supp. 888, 898 (E.D. Pa. 1986); Allen v. McCurry, 101 S. Ct.

> =

JUDICATA* - (Appellants’ Point of Error #2). These claims were

wrongfully stricken by the Ist Court of Appeals Judge Murray

Cohen. Appendix “V-3” and Appendix “M-1.”

Even if the judgment in Case #86-07376 was not final as

Justice Cohen suggests, RES JUDICATA WOULD STILL BE

APPLICABLE. Final judgment settles not only issues actually

litigated, but also any issues that could have been litigated; that

judgment may have been wrong or premised on legal principle

subsequently overruled does not affect application of res judicata.

Secrest v. Secrest, 649 S.W.2d 610, 612 (Tex. 1983). Doctrine of

res judicata bans re-litigation of same cause of action between same

parties or their successors in interest.’ All respondents in the action

claimed res judicata and collateral estoppel. (Appendix ‘‘P”’).

Appointment of a receiver to enforce a final judgment does not

affect the finality of the judgment.’

5. Petitioners were denied their right to Due Process and

Equal Protection of the law as required by the U.S. Consti-

tution Fifth and Fourteenth Amendments and the Texas

Constitution art. I §§ 3, 13 and 19 by the courts of Texas’

use of false and fraudulent facts to support their opinion

along with the allowed perjury by the trial court.

The Appeals Court did not correctly state the nature of the

case. The First Court of Appeals adopted the false and misleading

statements made by TCB in its reply brief (filed July 29, 1991).

411, 414, 415 (1980); also Asher v. Swenson, Warden, 397 U.S. 436, 464 (1970).

‘There is little to be added to the doctrine of res judicata as developed in

the case law of this Court. A final judgment on the merits of an action precludes

the parties or their privies from relitigating issues that were or could have been

raised in that action.” Federated Dep't Stores, Inc. v. Moitie, 101 S. Ct. 2424,

2428 (1981); Brown v. Felsen, 99 S. Ct. 2205, 2209 (1979).

*Kremer v. Chemical Const. Corp., 102 S. Ct. 1883, 1890 (1982).

‘District Court that has in personam jurisdiction over defendant may appoint

receiver to enforce judgment. Citronelle-Mobile Gathering, Inc. v. Watkins, 934

F.2d 1180, 1181, 1187 (11th Cir. 1991); Fink v. O'Neil, 106 U.S. 272.

A eile et as ato OMRS es soll a Sppam Wty Uy

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Schwagers dedicated pages 1-9 of their Response Brief (Suppie-

mental filed on Feb. 13, 1992) to point out the incorrect and

misleading statements made by TCB in its opening statement of its

Reply Brief. Other false and misleading statements were shown by

Schwager in specific Response Points of their Brief (Feb. 13,

1992).

Additionally, Appellants set out in their Motion for En Banc

Rehearing (Mar. 27, 1992) the incorrect and inconsistent statements

made by the First Court of Appeals in their opinion of March 12,

1992, pages 1-5. (For details of incorrect and inconsistent

statements see Appendix “E”’).

The refusal of the Supreme Court of Texas to grant to Schwa-

gers the same relief it grants to others in similar circumstances

within its jurisdiction denies Petitioners Schwagers the equal

protection of the laws in violation of the Fourteenth Amendment

contrary to the U.S. Supreme Court decision in Barbier v. Con-

nolly, 113 U.S. 27, 31, 5 S. Ct. 357, 359 (1984) and Truax v.

Corrigan, 257 U.S. 312, 334, 42 S. Ct. 124, 130 (1921).

The Supreme Court of Texas ignored complaints of fraud and

perjury made by Petitioners in the Ist Court of Appeals (Appendi-

ces “E” & “H”), disregarded the substantive and procedural law of

the state and prior controlling decisions of this Court, and dis-

missed the action. Nevertheless, the court obstinately refused to

reconsider an order by the Ist Court of Appeals based on fraud and

perjury. It also refused to recognize the district court’s failure to

prevent the perjured testimony used by Respondent during the trial

of Nov. 1989 (Appendix “T”). The Texas Supreme Court denied

Petitioners’ Writ of Error without addressing either the false

Statements of the record or any federal constitutional questions

raised by the Application for Writ of Error or the Motion for

Rehearing. See Brinkerhoff-Farris Trust & Savings Co. v. Hill, 281

U.S. 673, 679, 50 S. Ct. 451, 453 (1930).

The use of false information to support the opinion of the Ist

Court of Appeals—Judge Cohen deprived Petitioners of their

constitutional right of due process. Appendix “E.” The fundamental

requirement of due process is the opportunity to be heard: it 1s an

Opportunity which must be granted at a meaningful time in a

_ =

meaningful manner. Armstrong v. Manzo, 85 S. Ct. 1187, 1191

(1965).

Professor Anthony D’Amato addressed judicial fraud as

diabolically evil in The Ultimate Injustice: When a Court Misstates

the Facts, 11 Cardoza Law Review 1313 (1990). He states: “If we

take the most elementary interpretation of the last term justice . . .

we must acknowledge that justice, in any situation, depends upon

a full and fair accounting of the facts of that situation. If, instead

of facts, fictions are introduced that are contrary to the facts, then

any claimed just solution based on such fictions cannot achieve

justice in the real world. The proposition is so elementary that it

usually goes without saying.” Professor D’Amato further states:

“We should ask ourselves what kind of judiciary system this

society has produced where judges can misstate the facts of a case

and then proceed to apply law to those fictitious facts.”

CONCLUSION

Petitioner Bruce B. Schwager swore to briefs filed in the Ist

Court of Appeals and the Texas Supreme Court. It is clear that the

truth in this matter is a major point of contention. Someone in this

action is committing fraud and perjury and should be punished for

same. Ruling against Bruce B. Schwager is inferring that he has

committed perjury. Therefore, the Texas Supreme Court should

have filed charges against him. This document has been verified.

Appendix “Q.”

A complete reading of the Texas Bar Journal article, December

1987, pages 1201-1207 would show that the Texas Supreme Court

has seriously departed from existing law and principles in all

aspects of the case before the Supreme Court of Texas by not

reversing the judgment and dismissing the case or in the alternative

remanding the case for a new trial. “Schwagers” sought appellate

review of a substantial monetary judgment entered against them in

error. The court of appeals failed to consider the judgment entered

in Case #86-07376 as final. The trial court did not have jurisdiction

to consider Cases #86-07376 and #87-14551 and retry Case #86-

07376 as a consolidated case. This judgment should have been

on

» 20 «

reversed and dismissed by the Texas Supreme Court. There are

certain fundamental substantive rights which although not expressly

defined in the Constitution or its Amendments have been given

Status of constitutional rights; examples of such rights are the right

to travel, and freedom to choose and pursue a career. A “liberty”

right under the Fifth and Fourteenth Amendments means more than

freedom from personal restraints, and a “property” nmght is more

than ownership and possession of real and personal property. Const.

amends. 5, 14. “Procedural due process” means the procedure used

in effecting or denying one’s fundamental or constitutional rights.

U.S.C.A. Amends. 5, 14. Haag v. Cuyahogu County, 619 F. Supp.

262, 275, 276 (D.C. Ohio 1985).

Petitioners suffered an erroneous adverse judgment and the

denial of appellate review. Petitioners respectfully request this

Honorable Court's intervention so that justice may be done.

Meaningful appellate review should not be denied in this case.

THE IMPORTANCE OF THE ISSUES STATED IN PETI-

TIONERS’ WRIT OF CERTIORARI AND THE CONSTITU-

TIONAL PRINCIPLES INVOLVED REQUIRE THAT THIS

COURT OVERTURN THE RULING BY THE TEXAS

SUPREME COURT WHICH STATED “WRIT DENIED.” Peti-

tioners have been raped by the legal system of Texas. “TCB,”

through its attorney “Baker & Botts,” has gone on unbridled

making “false” and misleading statements, in the First Court of

Appeals and the Texas Supreme Court and probably this Court to

deprive Bruce and Bette Schwager of their mghts and property,

including an attempt to deprive Bruce Schwager of his freedom.

Based on the ruling of the Texas Supreme Court, “Baker & Botts”

has been successful using the rule THAT IF A LIE IS REPEAT-

ED ENOUGH TIMES, IT WILL BECOME THE TRUTH.

Attorneys with Baker & Botts, a defense firm, contributed more

money ($197,000) to successful Texas Supreme Court candidates

than any other single group of lawyers in the state. (Appendix

*X"). It should not go unnoted that the Chief Justice of the Texas

Supreme Court Tom Phillips is a former member and/or partner in

the Baker & Botts law firm.

- 30 - 4

It is believed that this Court should dismiss the judgment

against Petitioners as they were denied their constitutional rights

and the fact that the Texas Election Code Section 251.003 is

unconstitutional; in the alternative, it is believed that the Federal

Constitution requires that the Texas Supreme Court be ordered to

remand this case to the district court for a new trial or remand this

case to the Texas Ist Court of Appeals for reconsideration of the

appeal on its merits. For these foregoing reasons, it is respectfully

requested that this Court grant the Petition for a Writ of Certiorari. «

Petitioners further pray for other relief in law or in equity for

which they may be entitled.

Respectfully submitted,

- pate BS

BRUCE B. SCHWAGBR BETTE R. SCHWAGER

2001 Holcombe, Apt. 806

Housion, Texas 77030

Pro Se