Travis County Sheriff's Office Senior Certified Peace Officer Dennis Tumlinson v. Carolyn Barnes ( 2015 )

ACCEPTED
03-15-00642-CV
7749114
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/9/2015 3:35:08 PM
JEFFREY D. KYLE
CLERK
CASE NO. 03-15-00642-CV
IN THE THIRD COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
AT AUSTIN AUSTIN, TEXAS
11/9/2015 3:35:08 PM
OFFICER DENNIS TUMLINSON, JEFFREY D. KYLE
Appellant, Clerk
vs.
CAROLYN BARNES,
Appellee.
APPELLANT TRAVIS COUNTY SHERIFF’S OFFICE SENIOR
CERTIFIED PEACE OFFICER DENNIS TUMLINSON’S BRIEF
Respectfully Submitted,
DAVID ESCAMILLA
County Attorney, Travis County
Travis County Attorney’s Office
P.O. Box 1748
Austin, Texas 78767
Telephone: (512) 854-9513
Facsimile: (512) 854-4808
andrew.williams@co.travis.tx.us
pat.kelly@co.travis.tx.us
/s/ Andrew M. Williams
Andrew M. Williams
State Bar No. 24068345
Patrick M. Kelly
State Bar No. 11228000
ATTORNEYS FOR APPELLANT
DATE: November 9, 2015
ORAL ARGUMENT NOT REQUESTED
IDENTITIES OF PARTIES AND COUNSEL
Trial Court Cause Number: D-1-GN-15-000877
Plaintiff: Carolyn Barnes
Attorneys for Plaintiff: Carolyn Barnes, Pro se
419 Indian Trail
Leander, Texas 78641
Barnes.legalguidance@gmail.com
Defendant: Officer Dennis Tumlinson
Attorneys for Defendant: Andrew Williams
Patrick Kelly
Assistant County Attorneys
P.O. Box 1748
Austin, Texas 78767
andrew.williams@co.travis.tx.us
pat.kelly@co.travis.tx.us
339216-1 214.1281 ii
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL ........................................................ ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES.....................................................................................iv
STATEMENT OF THE CASE .................................................................................vi
ISSUES PRESENTED............................................................................................ vii
STATEMENT OF THE FACTS ............................................................................... 1
SUMMARY OF THE ARGUMENT ........................................................................ 4
ARGUMENT AND AUTHORITIES ........................................................................ 5
Issue 1: Subject Matter Jurisdiction Precludes Appellee’s Claims Against a
Government Official Because Appellee Failed to Establish
Jurisdiction. ...........................................................................................6
1. Appellee failed to demonstrate the trial court’s jurisdiction and
failed to plead a viable cause of action in law or fact based on the
facts alleged, regardless of whether they were true. ........................6
2. Appellee’s claims cannot trigger the injunctive relief sought, since
merely requesting a declaratory judgment does not confer
jurisdiction where it would not otherwise exist. ..............................8
Issue 2: Affirmative Defenses of Official Immunity, Statute of Limitations and
Res Judicata are Dispositive on the Question of the Court’s
Jurisdiction, Notwithstanding the Merits of Any Potential Claim. ..... 11
1. Official Immunity Precludes Appellee’s Claims Because She
Failed to Properly Invoke a Waiver of Immunity. .........................11
2. Even if Appellee could successfully invoke a waiver of official
immunity, the statute of limitations has run on any potential claim.
........................................................................................................14
3. Res judicata bars this reiteration of Appellee’s previous lawsuit. .15
4. This cause of action is a collateral attack on a criminal judgment.
........................................................................................................16
CONCLUSION ........................................................................................................17
PRAYER ..................................................................................................................18
CERTIFICATE OF COMPLIANCE .......................................................................20
CERTIFICATE OF SERVICE ................................................................................20
339216-1 214.1281 iii
INDEX OF AUTHORITIES
Cases
Bagg v. University of Tex. Medical Branch, 726 S.W.2d 582 (Tex. App.—Houston
[14th Dist.] 1987, writ ref'd n.r.e.) ...........................................................................12
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) ................................5, 6
Carpenter v. Barner, 797 S.W.2d 99 (Tex. App.—Waco 1990, writ denied) ........12
City of Arlington v. Randall, 301 S.W.3d 896, (Tex. App.—Fort Worth Dec. 10,
2009, pet. filed) ..........................................................................................................7
City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex. 1994) ................................12
Cox v. Klug, 855 S.W.2d 276 (1993) .......................................................................14
Dear v. City of Irving, 902 S.W.2d 731 (Tex. App.—Austin 1995, writ requested)
..................................................................................................................................12
Financial Acquisition Partners, LP v. Blackwell, 440 F.3d 278 (5th Cir. 2006) .....1
Ford v. Landmark Graphics Corporation, 875 S.W.2d 33 (Tex. App.— Texarkana
1994, no writ) ...........................................................................................................10
Hailey v. Glaser, No. 06-12-00065-CV, 2012 Tex. App. LEXIS 9657, at *3 (Tex.
App.—Texarkana Nov. 21, 2012, no pet. h.).............................................................8
Hinojosa v. Tarrant County, 355 S.W.3d 812 (Tex. App.—Amarillo 2011, no pet.)
..................................................................................................................................11
Lazarides v. Farris, 367 S.W.3d 788 (Tex. App.—Houston [14th Dist.] 2012, no
pet.).............................................................................................................................9
Rylander v. Caldwell, 23 S.W.3d 132 (Tex. App.—Austin 2000, no pet.) ...............5
Test Masters Educational Services v. Singh, et al. 428 F.3d 559 (5th Cir. 2005)..16
Tex. A & M Univ. Sys. v. Luxemburg, 93 S.W.3d 410 (Tex. App.—Houston [14th
Dist.] 2002, pet. denied) .............................................................................................7
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ..............5
Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002) 11
Tex. Natural Res. Conservation Comm’n v. Lakeshore Util. Co., 164 S.W.3d 368
(Tex. 2005) ...............................................................................................................11
Travis County v. Pelzel & Assocs., 77 S.W.3d 246 (Tex. 2002) .................. 6, 10, 11
Valenzuela v. Aquino, 853 S.W.2d 512 (Tex. 1993) ...............................................10
339216-1 214.1281 iv
Wayne Duddlesten, Inc. v. Highland Ins. Co., 110 S.W.3d 85 (Tex.App – Houston
[1st Dist.] 2003, pet. denied) ....................................................................................14
Webb v. Glenbrook Owners Ass'n, 298 S.W.3d 374 (Tex. App.—Dallas 2009, no
pet.).............................................................................................................................9
Statutes
Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) ...................................................... vi, 5
Tex. Civ. Prac. & Rem. Code §101.026 ........................................................... 12, 13
Tex. Civ. Prac. & Rem. Code §101.101 ..................................................................14
Tex. Civ. Prac. and Rem. Code §16.003..................................................................14
Texas Code of Criminal Procedure Article 46B ........................................... 2, 16, 17
Rules
Fed. R. Civ. P. 41(b) ................................................................................................16
Tex. R. App. P. 28.1................................................................................................. vi
Tex. R. App. P. 9.4...................................................................................................20
Tex. R. App. P. 9.4(i)(3) ..........................................................................................20
Tex. R. Civ. P. 683 .....................................................................................................9
339216-1 214.1281 v
STATEMENT OF THE CASE
Nature of the Case: Carolyn Barnes (“Appellee”) sued Dennis Tumlinson,
Travis County Sheriff’s Office Senior Certified Peace
Officer (“Appellant”) and five other Travis County
employees, alleging violations of civil and
constitutional rights under the Texas Constitution, a
“continuing tort”, global conspiracy, assault and
aggravated perjury, seeking monetary damages,
injunctive relief and a declaratory judgment. Travis
County Defendants moved the trial court to dismiss the
cause of action for lack of subject matter jurisdiction,
because Barnes failed to establish a waiver of
immunity. Travis County Defendants filed an amended
plea to the jurisdiction and a motion to dismiss pursuant
to Chapter 13, because Barnes filed an impermissible
retrospective ultra vires action, filed outside the statute
of limitations and re-plead a matter already foreclosed
by res judicata. The trial court granted the Chapter 13
Motion to Dismiss and Amended Plea to the
Jurisdiction with respect to all but one Travis County
Defendant, Officer Tumlinson. Appellant files this
accelerated interlocutory appeal under Tex. Civ. Prac.
& Rem. Code § 51.014(a)(8) and Tex. R. App. P. 28.1.
The Trial Court: The Honorable Orlinda Naranjo in the 419th Judicial
District Court of Travis County, Texas heard the
Chapter 13 Motion to Dismiss and Amended Plea to the
Jurisdiction on behalf of Appellant.
Trial Court’s Disposition: The trial court denied Appellant’s Chapter 13 Motion to
Dismiss and Amended Plea to the Jurisdiction with
respect to Officer Tumlinson.
Parties at Trial: Plaintiff: Carolyn Barnes
Defendant: Dennis Tumlinson
339216-1 214.1281 vi
ISSUES PRESENTED
Issue 1: Subject Matter Jurisdiction Precludes Appellee’s Claims Against a
Government Official Because Appellee Failed to Establish
Jurisdiction.
Issue 2: Affirmative Defenses of Official Immunity, Statute of Limitations and
Res Judicata are Dispositive on the Question of the Court’s
Jurisdiction, Notwithstanding the Merits of Any Potential Claim.
339216-1 214.1281 vii
STATEMENT OF THE FACTS
On January 8, 2010, Carolyn Barnes (“Appellee1” and/or “Barnes”) was
arrested by Travis County Sheriff’s Office Senior Certified Peace Officer Dennis
Tumlinson (“Officer Tumlinson”) for assaulting Officer Tumlinson while going
through the security screening process at the Travis County Criminal Justice
Complex. Barnes was charged with Assault on a Public Servant, Cause Number D-
1-DC-10-200140, State of Texas vs. Carolyn Machalec Barnes, 147th Judicial District
Court, Travis County, Texas. 2
While out on personal bond, on May 11, 2010, Barnes was arrested for
shooting at a United States Census Worker. She was charged with the offense of
Aggravated Assault with a Deadly Weapon by the Williamson County Sheriff’s
Office deputies, Cause Number 10-663-K368, State of Texas vs. Carolyn M. Barnes,
368th Judicial District Court, Williamson County, Texas.
Travis County Cause Number D-1-DC-10-200140 was dismissed on July 12,
2010. The case was refiled on July 12, 2010, as an Interference with the Duties of a
Public Servant in State of Texas vs. Carolyn Barnes, Cause Number C-1-CR-10-
401111, County Court at Law Number 3, Travis County, Texas. Barnes was found
1
Plaintiffs in the District Court Cause Number D-1-GN-15-000877 are listed as Carolyn
Barnes, individually and on behalf of her children.
2
A District Court may rely on public documents in deciding a Motion to Dismiss without
converting it into a motion for summary judgment. Financial Acquisition Partners, LP v.
Blackwell, 440 F.3d 278, 286 (5th Cir. 2006).
339216-1 214.1281 1
incompetent to stand trial and was committed to the Kerrville State Hospital for
mental health services. Cause Number C-1-CR-10-401111 was dismissed on
October 23, 2012, pursuant to Texas Code of Criminal Procedure Article 46B.009
which provides time credits towards sentencing for persons who are confined in a
mental health facility.
A jury found Barnes guilty on June 11, 2013, in Williamson County Cause
Number 10-663-K368, and she was sentenced to three years in the Texas Department
of Criminal Justice Institutional Division. Barnes has filed numerous mandamus
writs, habeas corpus applications and/or writs of prohibition regarding Cause
Number 10-663-K368.
Barnes filed suit on January 11, 2011, against media individuals as well as
Officer Tumlinson in Cause Number D-1-GN-11-000106, Carolyn Barnes vs. Austin
American Statesman, et al., in the 353rd Judicial District Court, Travis County, Texas.
In the 2011 civil lawsuit, Barnes alleged the defendants in the 2011 civil lawsuit
engaged in defamation per se and re-publication of libel, slander and defamation,
among many other allegations. The matter was ultimately dismissed for want of
prosecution on August 20, 2013.
On January 9, 2012, Barnes filed a lawsuit in Federal District Court, Cause
Number 1:12-CV-00028LY. In that cause, she sued many of the same individuals
that she has sued in the instant case including Officer Tumlinson. Her claims were
339216-1 214.1281 2
dismissed with prejudice for failure to comply with a court order to clarify and
shorten her pleadings. March 18, 2014, a Final Order was issued in Federal District
Court on March 18, 2014, barring Plaintiff from further filings in that Cause of
Action. On March 17, 2015, in appeal number 14-50350, The Fifth Circuit affirmed
the District Court’s order in dismissing her case in 1:12-CV-00028-LY.
On March 6, 2015, Barnes filed the case at bar against approximately 79
individuals, which included the Appellant. Barnes alleged gross abuses of power,
acts of violence, fraud on the court, obstruction of justice, usurpation of power,
global conspiracy, violations of public trust and unwarranted impositions of cruel and
unusual punishment by all named Defendants. Barnes requested that the court enter
declaratory judgment and injunctive relief based on actions taken pursuant to the
criminal arrests and subsequent prosecution in the above-referenced criminal cases.
One of her claims was against a federal worker. For that reason, the Federal
Defendant filed Notice of Removal in State Court on April 17, 2015, and the case
was removed to Federal District Court. However, Officer Tumlinson, along with five
other Travis County Defendants, having not yet answered, did not receive this notice
when filed.
On April 20, 2015, Officer Tumlinson, along with five other Travis County
Defendants, filed their Rule 91a Motion to Dismiss, Plea to the Jurisdiction, and in
the Alternative, Original Answer to Plaintiff’s Original Petition. Barnes was properly
339216-1 214.1281 3
noticed and served with that filing. Once Officer Tumlinson received notice of the
removal and out of an abundance of caution, Officer Tumlinson, along with five
other Travis County Defendants, filed a Rule 12(b)(6) Motion to Dismiss in Federal
Court on April 24, 2015. Federal Court entered an order on June 4, 2015, severing
all defendants who are not United States Employees and remanding those claims to
state court.
On July 9, 2015, Officer Tumlinson, along with five other Travis County
Defendants, filed their Amended Rule 91(a) Motion to Dismiss, Plea to the
Jurisdiction and Amended Answer to incorporate 12(b)(6) motion into state court
pleadings. On July 23, 2015, Officer Tumlinson, along with five other Travis County
Defendants, filed their Chapter 13 Motion to Dismiss. On September 9, 2015, the
419th Judicial District Court, Travis County, Texas, heard the Travis County
Defendant’s Chapter 13 Motion to Dismiss and their Amended Plea to the
Jurisdiction. The motion was granted with respect to all other Travis County
Defendants and Denied with respect to Officer Tumlinson.
SUMMARY OF THE ARGUMENT
Carolyn Barnes sued approximately 79 defendants in Travis County alleging
conspiracy, violation of civil and constitutional rights under the Texas
Constitution, assault on the job by an officer and aggravated perjury, allegedly
arising in part out of her 2010 arrest. Officer Tumlinson, along with five other
339216-1 214.1281 4
Travis County Defendants, moved the trial court to dismiss the case for lack of
jurisdiction, due to a variety of defenses. The trial court granted the Chapter 13
Motion to Dismiss and Amended Plea to the Jurisdiction with respect to all Travis
County Defendants except the arresting Travis County Sheriff’s Officer,
Tumlinson. While typically only a final adjudication on the merits can be appealed,
interlocutory appeals are permitted in the case of a plea to the jurisdiction. Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). A plea to the jurisdiction, without
regard to the merits of the case, would properly be extended to include Officer
Tumlinson, as well. Officer Tumlinson retains immunity from suit, since the trial
court lacks subject matter jurisdiction and due to the affirmative defenses of
immunity, statute of limitations and res judicata.
ARGUMENT AND AUTHORITIES
Standard of Review
The trial court lacked subject matter jurisdiction over Barnes’ claims,
because the suit was not permitted by law. See Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A plea to the jurisdiction challenges
the trial court’s authority to determine the subject matter of a specific cause of
action. Rylander v. Caldwell, 23 S.W.3d 132, 135 (Tex. App.—Austin 2000, no
pet.). The purpose of a plea to the jurisdiction is to dismiss a cause of action
without regard to whether the claim has merit. Bland Indep. Sch. Dist. v. Blue, 34
339216-1 214.1281 5
S.W.3d 547, 554 (Tex. 2000). In order to prevail, the party asserting the plea to
the jurisdiction must show that even if all the allegations in the plaintiff’s pleadings
are taken as true, there is an incurable jurisdictional defect apparent from the face
of the pleadings, rendering it impossible for the plaintiff’s petition to confer
jurisdiction on the trial court. Id. It is plaintiff’s burden to plead a clear and
unambiguous waiver of immunity. Travis County v. Pelzel & Assocs., 77 S.W.3d
246 (Tex. 2002). Because subject matter jurisdiction presents a question of law,
the appellate court reviews the district court’s decision de novo. Mayhew v. Town
of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Further, “a court deciding a plea
to the jurisdiction is not required to look solely to the pleadings but may consider
evidence and must do so when necessary to resolve the jurisdictional issues
raised.” Bland Independent School Dist., 34 S.W.3d at 555.
Issue 1: Subject Matter Jurisdiction Precludes Appellee’s Claims Against
a Government Official Because Appellee Failed to Establish
Jurisdiction.
1. Appellee failed to demonstrate the trial court’s jurisdiction and
failed to plead a viable cause of action in law or fact based on the
facts alleged, regardless of whether they were true.
In a plea to the jurisdiction, it is plaintiff’s burden to plead a clear and
unambiguous waiver of immunity. Travis County v. Pelzel & Assocs., 77 S.W.3d
246 (Tex. 2002). Appellee did not establish a waiver of immunity, as is discussed
in more depth below, nor did she establish jurisdiction based on the facts she
339216-1 214.1281 6
alleged. Regardless of the merits of Appellee’s case, the trial court lacks
jurisdiction over this matter.
Appellee’s attempt to cast the suit as one of a personal nature fails to
circumvent the reality of the suit, which is filed against Appellant in his official
capacity. While immunity is further discussed in the affirmative defenses section
of this brief and while a plea to the jurisdiction does not depend on the truth or
falsity of the allegations, Appellee did bear the burden of establishing that, if
allegations were true, there would be a viable cause of action. Appellee, however,
did not invoke a waiver of immunity and did not establish jurisdiction.
Appellee’s claims should have been dismissed because her legal theories are
indisputably meritless. Specifically, she asserts her claims for declaratory,
injunctive and monetary relief arise out of violations of the Texas Constitution.
However, under the Texas Supreme Court’s decision in City of Beaumont v.
Bouillion and its progeny, no private cause of action exists against a governmental
entity or its officials for money damages relating to alleged violations of Texas
constitutional rights. See City of Arlington v. Randall, 301 S.W.3d 896 (Tex.
App.—Fort Worth Dec. 10, 2009, pet. filed) (citing City of Beaumont v. Bouillion,
896 S.W.2d 143, 147 (Tex. 1995), and holding that there is no private right of
action for damages arising from unconstitutional conduct under Texas
constitution’s free speech and free assembly clauses); Tex. A & M Univ. Sys. v.
339216-1 214.1281 7
Luxemburg, 93 S.W.3d 410, 425 (Tex. App.—Houston [14th Dist.] 2002, pet.
denied) (op. on reh’g) (holding Bouillion applies to bar private right of action for
damages arising from other alleged Texas constitutional violations); Univ. of Tex.
Sys. v. Courtney, 946 S.W.2d 464, 468-69, 471 (Tex. App.—Fort Worth 1997, writ
denied) (op. on reh’g) (holding Bouillion applies to alleged Texas constitutional
due process provision violations by individual public officials and governmental
entities).
Accordingly, Barnes’ claims for damages, which are based solely on alleged
violations of her Texas constitutional rights, are frivolous and lacking an arguable
basis in law. Moreover, because these claims rely on an indisputably meritless
legal theory, Barnes cannot remedy this deficiency by amending her pleadings.
Rather, the matter is jurisdictionally barred.
Appellee has failed to assert a cause of action or plead facts necessary to
overcome the immunities to which Appellant is entitled. Thus, Appellee’s claims
against Officer Tumlinson should be dismissed.
2. Appellee’s claims cannot trigger the injunctive relief sought, since
merely requesting a declaratory judgment does not confer
jurisdiction where it would not otherwise exist.
To the extent that Barnes seeks a general injunction requiring compliance
with the law, such an injunction cannot be granted. See Hailey v. Glaser, No. 06-
12-00065-CV, 2012 Tex. App. LEXIS 9657, at *3 (Tex. App.—Texarkana Nov.
339216-1 214.1281 8
21, 2012, no pet. h.). An injunction must be definite, clear and precise; it must
inform the defendant of the acts restrained without calling on the defendant to
make inferences. Tex. R. Civ. P. 683; Webb v. Glenbrook Owners Ass’n, 298
S.W.3d 374, 384 (Tex. App.—Dallas 2009, no pet.). An injunction is not available
to “prevent commission of wrongs not imminently threatened”. Webb, 298 S.W.3d
at 384. Barnes has not specified any imminently threatened wrong; her allegations
simply catalogue past events 3.
Moreover, injunctive relief is not available unless Barnes establishes that she
would have no adequate remedy at law. See Lazarides v. Farris, 367 S.W.3d 788,
803 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (party seeking injunctive
relief preventing alleged ultra vires acts must plead and prove, among other things,
existence of imminent harm, irreparable injury and absence of adequate remedy at
law). Here, if in the future Appellant fails to comply with duties in connection
with any future criminal charges against Barnes, Barnes may bring the matter to
the attention of the judge presiding over the proceeding. Enriquez v. Rodriguez-
Mendoza, 2013 Tex. App. LEXIS 1039, *7-8 (Tex. App.—Austin Feb. 1, 2013).
Appellee is not entitled to injunctive relief, as she has not pleaded a cause of
action against the Appellant or proven that he has engaged in a wrongful act.
Appellee pleads in general terms that a conspiracy exists and alleges gross abuses
3
Barnes currently has an adequate remedy at law for judicial review of her Williamson County
conviction, through her pending appeal, Cause Number 03-13-00434-CR.
339216-1 214.1281 9
of power, acts of violence, fraud on the court, obstruction of justice, usurpation of
power, violations of public trust and unwarranted impositions of cruel and unusual
punishment by Appellant and the other originally named Defendants. However, she
failed to show how Appellant committed a wrongful act.
Without a cause of action or a wrongful act, an applicant cannot prove a
probable right to recovery. Ford v. Landmark Graphics Corporation, 875 S.W.2d
33, 34-35 (Tex. App.—Texarkana 1994, no writ). These remedies are available
only if liability is established under a cause of action. See Valenzuela v. Aquino,
853 S.W.2d 512, 514 n.2 (Tex. 1993) (“No final relief, including a permanent
injunction, can be granted in a contested case without a determination of legal
liability . . . .”); Cooper v. Litton Loan Servicing, LP, 325 S.W.3d 766, 769 (Tex.
App.—Dallas 2010, pet. denied) (noting that “[a] permanent injunction is not a
cause of action but an equitable remedy,” and that “[t]o obtain an injunction a party
must first assert a cause of action”). The Petition failed to state any theory or basis
for this recovery. Appellee fails to identify a cause of action for which she may
recover. Appellee must plead and prove a clear and unambiguous waiver of
sovereign immunity to assert a viable cause of action. Travis County v. Pelzel, 77
S.W.3d 246 (Tex. 2002). Having failed to do so, on the face of the pleadings,
Appellee does not have a probable right to recovery. Because her case is
339216-1 214.1281 10
frivolous 4 and there is no prospective basis for her claims, there is no room to
consider injunctive or declaratory relief. Thus, those claims for relief are
jurisdictionally barred, as well.
Issue 2: Affirmative Defenses of Official Immunity, Statute of Limitations
and Res Judicata are Dispositive on the Question of the Court’s
Jurisdiction, Notwithstanding the Merits of Any Potential Claim.
1. Official Immunity Precludes Appellee’s Claims Because She
Failed to Properly Invoke a Waiver of Immunity.
The burden was on Appellee to plead a clear and unambiguous waiver of
immunity. Travis County v. Pelzel & Assocs., 77 S.W.3d 246 (Tex. 2002). It is
well established in Texas that only the legislature can waive governmental
immunity and it must do so by clear and unambiguous language. Hinojosa v.
Tarrant County, 355 S.W.3d 812, 818-819 (Tex. App.—Amarillo 2011, no pet.).
“This determination is singularly that of the legislature.” Id. citing Tex. Natural
Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, at 857 (Tex. 2002) and
Tex. Natural Res. Conservation Comm’n v. Lakeshore Util. Co., 164 S.W.3d 368,
377 (Tex. 2005). Here, there was no legislative waiver of immunity, nor did
Appellee try to invoke one.
A government agent who does not violate clearly established law is entitled
to sovereign/official immunity. City of Lancaster v. Chambers, 883 S.W.2d 650,
4
On November 5, 2015, in a related lawsuit that Barnes had filed against the Austin American
Statesman, KXAN TV and other media defendants arising out of the same episodes contained
here, Barnes’ case was dismissed and she was declared to be a vexatious litigant.
339216-1 214.1281 11
656 (Tex. 1994). Appellant asserts that in connection with the incident which
forms the basis of this lawsuit, he was performing discretionary duties within the
course and scope of his employment and is therefore immune from liability by
virtue of his official immunity (I C.R. at 358). See id. at 653. Appellant asserts
that official immunity acts as an affirmative bar to Appellee’s recovery. See Tex.
Civ. Prac. & Rem. Code §101.026.
Furthermore, official immunity is effective against all claims, regardless of
whether they are lodged against the individual possessing it in his official or
personal capacity. See Dear v. City of Irving, 902 S.W.2d 731, 737 (Tex. App.—
Austin 1995, writ requested); Carpenter v. Barner, 797 S.W.2d 99, 101 (Tex.
App.—Waco 1990, writ denied); Bagg v. University of Tex. Medical Branch, 726
S.W.2d 582, 586 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.).
Appellee’s claims for relief are affirmatively barred by the doctrine of
sovereign immunity. The Texas Tort Claims Act excludes recovery for those acts
that are the product of discretionary powers and insomuch as a suit against a public
official in his official capacity is a suit against the governmental entity. Travis
County is a political subdivision of the State of Texas and enjoys sovereign
immunity, both from suit and from liability, except insofar as the Texas Legislature
has provided a limited waiver of its sovereign immunity by way of the Texas Tort
Claims Act. Appellant hereby affirmatively pleads and asserts a claim to and defense
339216-1 214.1281 12
of sovereign immunity, including, but not limited to, the exemptions, exceptions and
limitations of the Texas Tort Claims Act.
At all times relevant to this cause of action, Appellant acted in his official
capacity as an employee of Travis County, Texas, and with the good faith belief that
his actions were proper under the Constitution and laws of the state (I C.R. at 358).
Further, a government agent who does not violate clearly established law is entitled
to official immunity. Appellant asserts that in connection with the incident which
forms the basis of this lawsuit, Travis County’s employee Officer Tumlinson was
performing discretionary duties within the course and scope of his employment, in
good faith and is therefore immune from liability by virtue of his official immunity.
Appellant asserts that his official immunity acts as an affirmative bar to Appellee’s
recovery. See also Tex. Civ. Prac. & Rem. Code §101.026.
Appellee failed to perform all of the conditions precedent to the filing of this
lawsuit under the Texas Tort Claims Act. She failed to provide the statutorily
required notice under §101.101 of the Texas Tort Claims Act. Failure of a
Claimant under the Texas Tort Claims Act to give requisite timely notice of claim
perpetually bars claimant’s action and is a plea in bar, the purpose of which is to
forever preclude the cause of action pleaded, even if all of plaintiffs’ allegations
are proven as true. See Cox v. Klug, 855 S.W.2d 276 (1993). Tex. Civ. Prac. &
Rem. Code §101.101.
339216-1 214.1281 13
2. Even if Appellee could successfully invoke a waiver of official
immunity, the statute of limitations has run on any potential
claim.
All claims against Officer Tumlinson arise out of the January 8, 2010 arrest
and subsequent prosecution of Appellee Barnes, therefore the statute of limitations
has run on any potential claim, pursuant to Tex. Civ. Prac. and Rem. Code §16.003.
If the plaintiffs’ suit is not permitted by law, the court by nature lacks jurisdiction
to hear it. See Wayne Duddlesten, Inc. v. Highland Ins. Co., 110 S.W.3d 85, 96-
97 (Tex.App – Houston [1st Dist.] 2003, pet. denied). Appellee complains about
actions that occurred during Barnes’ January 2010 arrest and subsequent
prosecution in Travis County as well as Barnes’ May 2010 arrest and subsequent
prosecution in Williamson County. All Travis County criminal charges against
Appellant were dismissed October 23, 2012. Appellant has failed to state a claim
that would fall within the statute of limitations. The statute of limitations runs
from the time of the act itself, which was in 2010. This lawsuit was filed on March
6, 2015, well beyond the expiration of the statute of limitations.
Thus, acts alleged in relation to this claim are barred by limitations, since
they occurred more than two years before Appellee filed this suit. Thus, the suit
cannot be allowed, regardless of its merits.
339216-1 214.1281 14
3. Res judicata bars this reiteration of Appellee’s previous lawsuit.
Appellee previously filed suit against Officer Tumlinson in Federal Court,
alleging claims arising out of the same set of facts. Thus, this suit is barred by the
affirmative defense of res judicata. The case at bar is very similar to Barnes’
previous case that was dismissed by the United States District Court, Western
District of Texas, Cause Number 1:12-CV-00028-LY. The Travis County
Defendants sued in the previous case were the same ones sued in this case,
although Officer Tumlinson is the only one for whom the case is ongoing. The
facts are essentially the same in both cases. For example, in the current case,
Barnes complains about an alleged “conspiracy that began in 2010 in Travis
County and has continued unabated...” (I C.R. at 5). Likewise in the Third
Amended Complaint from her previous lawsuit, 1:12-CV-00028-LY, she alleges:
“[her constitutional rights] were clearly established in 2010” and “the conspiracy is
continuing and ongoing.” See Pl.’s Third Am. Comp. at 3-4, ¶2. Moreover,
Appellant stated in a recent hearing that the allegations were of, “a continuing tort
that started in May of 2010 with the same core men” (I R.R. at 53:22-24).
The test for whether res judicata applies has four elements: (1) the parties are
identical or in privity; (2) the judgment in the prior matter was rendered by a court
of competent jurisdiction; (3) the prior action was concluded by a judgment on the
merits; and (4) the same claim or cause of action was involved in both actions.
339216-1 214.1281 15
Test Masters Educational Services v. Singh, et al. 428 F.3d 559, 571 (5th Cir.
2005). Here all of these elements are met: Appellant, like the other Travis County
Defendants named in the case at bar as originally filed, were all named in the
previous federal lawsuit. Certainly the United States District Court Western
District of Texas is a Court of Competent Jurisdiction. Under the black letter law
of Fed. R. Civ. P. 41(b), the prior action was concluded by a judgment on the
merits because a dismissal under that Rule, “operates as an adjudication on the
merits.” To determine the fourth element, whether two suits involve the same
claim or cause of action for res judicata purposes, courts use a transactional test
“under which a prior judgment’s preclusive effect extends to all rights of the
plaintiff with respect to all or any part of the transaction or series of connected
transactions out of which the original action arose.” Id. at 571.
As described above, both the case at bar and 1:12-CV-00028-LY deal with
allegations of conspiracy between Travis County and Williamson County officials
with an alleged intent to harm Ms. Barnes. For these reasons, res judicata applies
and thus the trial court does not have jurisdiction over it.
4. This cause of action is a collateral attack on a criminal judgment.
On or about October 23, 2012, the Travis County Court at Law Number 3
dismissed Cause Number C-1-CR-10-401111, State of Texas vs. Carolyn Barnes,
pursuant to Texas Code of Criminal Procedure Article 46B.009. On or about June
339216-1 214.1281 16
11, 2013, a jury found Barnes guilty in Williamson County Cause Number 10-663-
K368. As a result of being found guilty, Ms. Barnes was sentenced to three years
in the Texas Department of Criminal Justice Institutional Division (TDCJ-ID) on
June 11, 2013. Barnes appealed this conviction and said appeal is currently
pending with the Texas Third Court of Appeals, Case Number 03-13-00434-CR.
Further, Barnes has filed several Writs of Mandamus, Habeas Corpus Applications
and a Writ of Prohibition with the appeals courts and the Texas Supreme Court, all
of which have been denied.
Barnes has failed to plead any discernible cause of action against Officer
Tumlinson. Rather, it appears from Appellee’s pleading that she is attempting to
have the trial court enter a declaratory judgment that would contradict the findings
of the Williamson County Jury in June 11, 2013, in Cause Number 10-663-K368.
Further, Appellee is attempting to have the trial court enter a declaratory judgment
that would contradict the Travis County Court at Law Number 3’s court order for a
Texas Code of Criminal Procedure Article 46B commitment.
By asserting these claims in a civil court, Appellee is seeking to undo the
criminal judgment rendered against her. As such, the claim is a collateral attack
upon the judgment over which the trial court has no jurisdiction.
///
339216-1 214.1281 17
CONCLUSION
The trial court erred in not granting the Appellant’s Chapter 13 Motion to
Dismiss and/or Amended Plea to the Jurisdiction. It is a matter of law that a cause
of action does not exist for Barnes’ allegations under the procedural posture in
which she presented it. There are numerous incurable defects on the face of the
pleadings that foreclose the trial court’s jurisdiction in this matter. Even if there
were a basis for overcoming Appellant’s immunity, Appellee failed to invoke it.
Furthermore, if she had managed to properly invoke a waiver of immunity, the
statute of limitations would still prevent the claim. Independently of those
barricades, res judicata would independently foreclose the action. Moreover, the
injunctive relief Appellee seeks is not available under these retrospective
circumstances. Appellee has no viable claim, regardless of the truth or falsity of
her allegations.
PRAYER
Based on all of the above, Appellant requests the Court reverse the Trial
Court’s order and render judgment in favor of Travis County Sheriff’s Office
Senior Certified Peace Officer Dennis Tumlinson, dismissing all claims for lack of
subject matter jurisdiction. Appellant seeks all further relief to which he may be
justly entitled.
339216-1 214.1281 18
Respectfully Submitted,
DAVID ESCAMILLA
County Attorney, Travis County
Travis County Attorney’s Office
P.O. Box 1748
Austin, Texas 78767
Telephone: (512) 854-9513
Facsimile: (512) 854-4808
By: /s/ Andrew M. Williams
Andrew M. Williams
State Bar No. 24068345
Patrick M. Kelly
State Bar No. 11228000
ATTORNEYS FOR APPELLANT
DENNIS TUMLINSON
339216-1 214.1281 19
CERTIFICATE OF COMPLIANCE
By my signature below, pursuant to Tex. R. App. P. 9.4(i)(3), I hereby certify
that the foregoing Appellant Travis County Sheriff’s Office Senior Certified Peace
Officer Dennis Tumlinson’s Brief contains 4437 words and is compliant as to form
pursuant to Tex. R. App. P. 9.4.
/s/ Andrew M. Williams
Andrew M. Williams
Patrick M. Kelly
Assistant County Attorneys
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Appellant Travis
County Sheriff’s Office Senior Certified Peace Officer Dennis Tumlinson’s Brief
was served in accordance with the Texas Rules of Appellate Procedure by electronic
filing and electronic service on this 9th day of November, 2015, as follows:
Via Electronic Filing Via Electronic Service
Jeffrey D. Kyle, Clerk Carolyn Barnes
Court of Appeals 419 Indian Trail
Third District of Texas Leander, TX 78641
P.O. Box 12547 Barnes.legalguidance@gmail.com
Austin, Texas 78711
/s/ Andrew M. Williams
Andrew M. Williams
Patrick M. Kelly
Assistant County Attorneys
339216-1 214.1281 20
CASE NO. 03-15-00642-CV
IN THE THIRD COURT OF APPEALS
AT AUSTIN
OFFICER DENNIS TUMLINSON,
Appellant,
vs.
CAROLYN BARNES,
Appellee.
APPELLANT’S APPENDIX
LIST OF DOCUMENTS
1. Plaintiff’s Third Amended Original Complaint (Cause No. 1:CV-00028-LY)
............................................................................................................. TAB A
2. Order (Cause No. 1:12-CV-00028-LY) ............................................... TAB B
339216-1 214.1281 21
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 1 of 57
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
F R.ED
CAROLYN BARNES § ZZ
JUL 1 6
And Her Children §
Plaintiffs §
§
V. §
§
DENNIS G. TUMLINSON, §
GREG HAMILTON, TRAVIS COUNTY §
SHERIFF DEPARTMENT, BILL SWAIM, §
DAVID ESCAMILLA, IRMA GUERRERO, CIVIL ACTION # A-12-CA-028
ALLISON SAENZ, RON MORGAN, § 42 USC § 1983
COTTON, ROBERT LERMA, THREE § 42 USC § 1985 (2), § 1988
UNIDENTIFIED DEPUTIES, DEBORAH § 18 USC § 241, 242
KLEKAR, TRAVIS COUNTY, TEXAS § 18 USC § 1961-1968
AUSTIN AMERICAN STATESMAN, § 18USC 1512
AUSTIN LEGAL BLOG, ZACH RYALL, § 18 USC § 1513
ONE THAT KNOWS, ANOTHER THAT § 18 USC § 1343
KNOWS, LIBERALS R. CLUELESS, § 18 USC § 1957
NATIVESON, HURST, ANONYMOUS, § Tex. CCP 46B
ERIN CARGILE, KXAN, § Tex. Health & Safety Code,
NOELLE NEWTON, JIM BERGAMO, § Title 7, Subtitle C,
KVUE-TV, § Chapters 571, 574
KEYE, §
JAMES WILSON, WILLIAMSON § JURY TRIAL
COUNTY SHERIFF DEPARTMENT, §
KATHLEEN GITTEL, §
HAROLD POPPA, §
MICHAEL SCHEFFLER, §
D. "DIANE" HERNANDEZ, §
NICK RICHTER, §
RUSSELL TRAVIS, §
PAUL BOGAN, JOHN FOSTER, §
ROBERT NEWELL, §
PETE HUGHEY, §
DOUG WAGGONER, §
BELINDA BARTZ, §
JEREME BRINKMANN, §
RICHARD DE LA VEGA, §
JOHN FOSTER, §
DALE RYE, DEE HOBBS, §
SUZANNE BROOKS, §
JOHN BRADLEY, TRAVIS MCDONALD, §
Tab A
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 2 of 57
ROBERT MCCABE, ALAN SCHREIBER, §
KEN ANDERSON, §
BURT CARNES, §
DOUG SHAVER, §
MARTY GRIFFITH, §
JOHN CLIFTON, §
DUSTY HUMES, §
DAVID RUPPART, §
WILLIAMSON COUNTY, TEXAS §
Defendants §
PLAINTIFF'S THIRD AMENDED ORIGINAL COMPLAINT
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW Plaintiffs, Carolyn Barnes, (hereinafter referred to as "BARNES"),
and her children, and files this the Third Amended Original Complaint, and brings this
action against said Defendants, jointly and severally, because they have willfully
subjected Plaintiffs to the deprivation of rights, privileges, or immunities as guaranteed
by the Constitution and laws of the United States of America and the State of Texas, and
in support thereof would show the following:
I. VENUE
1. Venue is appropriate in the Western District of Texas, Austin Division
because the plaintiffs and the named defendants reside or conduct business in the
Western District.
2. Venue is also proper in the Western District of Texas, Austin Division, in
that all, or a substantial part of the acts and omissions forming the basis of these claims
occurred in the Western District of Texas.
3. Venue is proper in the Western District of Texas, Austin Division, as this
is the district where the claim arose in accordance to 29 U.S.C. § 139 1(b).
2
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 3 of 57
II. JURISDICTION
1. Jurisdiction over these claims and causes of action is appropriate in federal
district court pursuant to 18 U.S.C. §l96l et seq. and 42 U.S.C. §1983. This court has
jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question) and 28
U.S.C. § 1343(3) (civil rights) and (4). This court also has supplemental or pendent
jurisdiction pursuant to 28 u.s.c.s. § 1367 to hear and adjudicate the state claims that
will be set forth in this complaint. Defendants have violated 42 U.S.C. Sections 1983
and 1985(2), as well as 18 U.S.C. Sections 241, 242, 1961-68, 1512, 1513, 1343, 1957.
2. BARNES' deprivation of liberty, familial relationships, property, personal
effects, and reputation were legally cognizable results and reasonably foreseeable
consequences of and from the numerous and compounding violations of her right to be
left alone' and other constitutional violations set forth herein, which were clearly
established rights in 2010, and at all relevant times prior and subsequent thereto. All of
the constitutional rights that were violated by defendants were clearly established and
well-recognized at the time of each of the violations. Since all defendants (except the
media participants) are employees, agents, representatives, or attorneys of the
government, they enjoy qualified inmmnity for their actions and misconduct. Qualified
immunity protects a public official from liability for conduct that "does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396
(1982). The conduct of defendants does not fall within the protective parameters of
qualified immunity. Further the custom, policy, practice, and habit of the TRAVIS
1
"(The right to privacy is a person's) right to be left alone by the government.., the right most valued by
civilized men." - Former Supreme Court Justice Louis Brandeis
3
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 4 of 57
COUNTY Sheriffs Department (TCSD) of TRAVIS COUNTY, Texas, and the
WILLIAMSON COUNTY Sheriffs Department (WCSD) of WILLIAMSON COUNTY,
Texas amounted to a deliberate indifference and conscious disregard towards the rights,
safety, and welfare of the citizens, and that deliberate indifference and conscious
disregard were the moving forces behind the constitutional violations and the conspiracy
to violate the constitutional rights of BARNES and her children. The conspiracy is
continuing and on-going and the harm, injury, and damage continue to compound and
FIItIDI
JUDICIAL NOTICE
1. BARNES requests that this court take judicial notice of the entire contents
of the court's file in Cause No. l0-663-K368 pending in WILLIAMSON COUNTY
District Court, including the probable cause affidavit filed by BARNES and the motion
for a full Franks hearing and the Memorandum to the file making the Tex. Const. Art. I,
§ 10 election to appear as counsel and with co-counsel, and the entire contents of the
Arnold Garza case in Cause No. 09-08516-1 in Williamson County Court No. 1 and in
Case No. 03-10-00307-CR in the Third Court of Appeals, which are all incorporated
herein by reference the same as if set forth at length.
2. BARNES requests that this court take judicial notice of the entire contents
of the court's file in Case number 03-12-00073-CV and Case number 03-1 1-00647-CR
filed in the Third Court of Appeals; and Cause No. WR-75,685-02 filed in the Texas
Court of Criminal Appeals, which are incorporated herein by reference the same as if set
forth at length.
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 5 of 57
3. BARNES requests that this court take judicial notice of the entire contents
of the court's file in USDC No. 1:11 -CV-4 1 4-LY and USDC No. Cause No. A-li-CR-
237-LY filed in this court and Case number 11-50764 filed in the Fifth Circuit, which are
incorporated herein by reference the same as if set forth at length.
4. BARNES requests that this court take judicial notice of the entire contents
of the court's file in Cause No. 99-360-C368---(CARNES recused himself and brought in
"visiting judge" Don Humble to throw the casethe WCSD, WCSD sheriff, and RYE
were involved), filed in Williamson County District Court, and Case No. 01-00159-CV
filed in the Third Court of Appeals, which are incorporated herein by reference the same
as if set forth at length.
5. BARNES requests that this court take judicial notice of the entire contents
of the court's file in USDC No. A-0i-CV-547-H filed in this court and Case No. 02-
50937 in the U.S. Court of Appeals for the Fifth Circuit, which is incorporated herein by
reference the same as if set forth at length.
III. PARTIES
1. Plaintiff, Carolyn Barnes, (hereinafter referred to individually as
"BARNES") is a resident of WILLIAMSON COUNTY, Texas and is sui juris,
individually and on behalf of her children collectively referred to herein as Plaintiffs.
2. Defendant, DENNIS G. TUML1NSON (hereinafter referred to as
"TUMLINSON") is a resident of TRAVIS COUNTY, Texas and can be served with
citation and copy of this original petition at his place of employment with the TRAVIS
COUNTY Sheriff's Department, assigned to "security" at the Heman Marion Sweatt
TRAVIS COUNTY Courthouse, 1000 Guadalupe, Austin, TX 78701. Each of the acts
5
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 6 of 57
complained of herein arise from the conduct of Defendant while acting under color of
state law, and was committed within the scope of his employment and authority with the
TRAVIS COUNTY Sheriff's Department, TRAVIS COUNTY, Texas. TUML1NSON is
being sued in his personal and official capacity.
3. Defendant, GREG HAMILTON, (hereinafter referred to as
"HAMILTON") is a resident of TRAVIS COUNTY, Texas, is the Sheriff of TRAVIS
COUNTY, and may be served with citation in this cause by serving him at his place of
employment with the TRAVIS COUNTY Sheriff's Office at the Ruiz Building, 5555
Airport Blvd., Austin, TX 78751. Each of the acts complained of herein arise from the
conduct of Defendant while acting under color of state law, and was committed within
the scope of his employment and authority with the TRAVIS COUNTY Sheriff's
Department, TRAVIS COUNTY, Texas. HAMILTON is being sued in his official
capacity.
4. Defendant, TRAVIS COUNTY SHERIFF'S DEPARTMENT (hereinafter
referred to as "TCSD") operates in TRAVIS COUNTY, Texas, and may be served with
citation in this cause by serving the Sheriff, GREG HAMILTON, at the address noted
above.
5. Defendant, BILL SWAIM (hereinafter referred to as "SWAIM") is a
resident of TRAVIS COUNTY, Texas and may be served with citation in this cause by
serving him at his place of employment at the TRAVIS COUNTY Attorney's Office, 314
11th St W, Austin, TX 78701. Each of the acts complained of herein arise from the
conduct of Defendant while acting under color of state law, and was committed within
the scope of his employment and authority with the TRAVIS COUNTY Attorney's
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 7 of 57
Office, TRAVIS COUNTY, Texas. SWAIM is being sued in his personal and official
capacity.
6. Defendant, DAVID ESCAMILLA (hereinafter referred to as
"ESCAMILLA") is the TRAVIS COUNTY Attorney, who resides in TRAVIS
COUNTY, and who may be served with citation in this cause by serving him at his place
of employment at the TRAVIS COUNTY Attorney's Office, 314 11th St W, Austin, TX
78701. Each of the acts complained of herein arise from the conduct of Defendant while
acting under color of state law, and was committed within the scope of his employment
and authority with the TRAVIS COUNTY Attorney's Office, TRAVIS COUNTY,
Texas. ESCAMILLA is being sued in his personal and official capacity.
7. Defendant, IRMA GUERRERO (hereinafter referred to as
"GUERRERO") is a resident of TRAVIS COUNTY, Texas and may be served with
citation in this cause by serving her at her place of employment at the TRAVIS
COUNTY Probation Office, Blackwell-Thurman Criminal Justice Center, 509 W. 11th
St., Room 2.900, Austin, TX 78701. Each of the acts complained of herein arise from the
conduct of Defendant while acting under color of state law, and was committed within
the scope of her employment and authority with the TRAVIS COUNTY Probation
Department, Pretrial Services, TRAVIS COUNTY. GUERRERO is being sued in her
personal and official capacity.
8. Defendant, ALLISON SAENZ (hereinafter referred to as "SAENZ") is a
resident of TRAVIS COUNTY, Texas and may be served at her place of employment at
the TRAVIS COUNTY Probation Office, Blackwell-Thurman Criminal Justice Center,
509 W. 11th St., Room 2.900, Austin, TX 78701. Each of the acts complained of herein
7
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 8 of 57
arise from the conduct of Defendant while acting under color of state law, and was
committed within the scope of her employment and authority with the TRAVIS
COUNTY Probation Department, Pretrial Services, TRAVIS COUNTY, Texas. SAENZ
is being sued in her personal and official capacity.
9. Defendant, RON MORGAN, (hereinafter referred to as "MORGAN") is a
resident of TRAVIS COUNTY, Texas and may be served at his place of employment at
the TRAVIS COUNTY Probation Office, Blackwell-Thurman Criminal Justice Center,
509 W. 11th St., Room 2.900, Austin, TX 78701. Each of the acts complained of herein
arise from the conduct of Defendant while acting under color of state law, and was
committed within the scope of his employment and authority with the TRAVIS
COUNTY Probation Department, Pretrial Services, TRAVIS COUNTY, Texas.
MORGAN is being sued in his personal and official capacity.
10. Defendant, unknown first name COTTON, (hereinafter referred to as
"COTTON") is a resident of TRAVIS COUNTY, Texas, and may be served at her place
of employment in the TRAVIS COUNTY Jail, 509 W. Austin, TX 78701. Each of
the acts complained of herein arise from the conduct of Defendant while acting under
color of state law, and was committed within the scope of her employment and authority
with the TRAVIS COUNTY Jail, TRAVIS COUNTY, Texas. COTTON is being sued in
her personal and official capacity.
11. Defendant, DEBORAH KLEKAR, (hereinafter referred to as
"KLEKAR") is a resident of TRAVIS COUNTY, Texas, and may be served at her place
of employment in the TRAVIS COUNTY Jail, 509 W. Austin, TX 78701. Each of
the acts complained of herein arise from the conduct of Defendant while acting under
8
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 9 of 57
color of state law, and was committed within the scope of her employment and authority
with the TRAVIS COUNTY Jail, TRAVIS COUNTY, Texas. KLEKAR is being sued in
her personal and official capacity.
12. Defendant, ROBERT LERMA, (hereinafter referred to as "LERMA") is a
resident of TRAVIS COUNTY, Texas, and may be served at his place of employment in
the TRAVIS COUNTY Jail, 509 W. 11th, Austin, TX 78701. Each of the acts
complained of herein arise from the conduct of Defendant while acting under color of
state law, and was committed within the scope of his employment and authority with the
TRAVIS COUNTY Jail, TRAVIS COUNTY, Texas. LERMA is being sued in his
personal and official capacity.
13. Defendant, three unidentified female deputies employed in the TCJ,
(hereinafter referred to as "UNIDENTIFIED THREE") are residents of TRAVIS
COUNTY, Texas, and may be served at their place of employment in the TRAVIS
COUNTY Jail, 509 W. ll, Austin, TX 78701. Each of the acts complained of herein
arise from the conduct of Defendant while acting under color of state law, and was
committed within the scope of their employment and authority with the TRAVIS
COUNTY Jail, TRAVIS COUNTY, Texas. UNIDENTIFIED THREE are being sued in
their personal and official capacity.
14. Defendant, TRAVIS COUNTY, TE)(AS may be served with citation in
this cause by serving the County Judge, Samuel T. Biscoe, at his place of employment,
314 W. 11th St., #520, Austin, TX 78701.
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 10 of 57
15. Defendant, AUSTIN AMERICAN STATESMAN, (hereinafter referred to
as "STATESMAN"), may be served with citation in this cause by serving its registered
agent at 305 S. Congress Ave., Austin, Texas 78704.
16. Defendant, ONE TFIAT KNOWS, is a competitor of Plaintiff and may be
served with citation in this cause when he is identified by the AUSTIN AMERICAN
STATESMAN.
17. Defendant, ANOTHER THAT KNOWS, is a competitor of Plaintiff and
may be served with citation in this cause when he is identified by the AUSTIN
AMERICAN STATESMAN.
18. Defendant, LIBERALS R. CLUELESS, is a competitor of Plaintiff and
may be served with citation in this cause when he is identified by the AUSTIN
AMERICAN STATESMAN.
19. Defendant, NATIVESON, is a competitor of Plaintiff and may be served
with citation in this cause when he is identified by the AUSTIN AMERICAN
STATESMAN.
20. Defendant, I{URST, is a competitor of Plaintiff and may be served with
citation in this cause when he is identified by the AUSTIN AMERICAN STATESMAN.
21. Defendant, ANONYMOUS, has not been identified and will be served
with citation when the identity and address is discovered.
22. Defendant, AUSTIN LEGAL BLOG, is an online blog sponsored by the
AUSTIN AMERICAN STATESMAN, and may be served with citation in this cause at
the above address for the Austin American Statesman.
10
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 11 of 57
23. Defendant, ZACH RYALL, (hereinafter referred to as "RYALL"), is an
employee of the AUSTIN LEGAL BLOG, AUSTIN AMERICAN STATESMAN, and
may be served with citation in this cause at his place of employment at the AUSTIN
AMERICAN STATESMAN.
24. Defendant, ERIN CARGILE, (hereinafter referred to as "CARGILE"), is a
resident of TRAVIS COUNTY and a reporter for KXAN Austin News, and may be
served with citation in this cause at her place of employment at KXAN Austin News, 908
W Martin Luther King Jr. Blvd., Austin, Texas 78701.
25. Defendant, KXAN Austin News, may be served with citation in this cause
by serving the station manager, Eric Lassberg, president and general manager of KXAN,
or registered agent at its place of business at 908 W Martin Luther King Jr. Blvd., Austin,
Texas 78701.
26. Defendant, NOELLE NEWTON, (hereinafter referred to as "NEWTON"),
is a resident of TRAVIS COUNTY and a reporter for KVUE-TV, and may be served
with citation in this cause at her place of employment at KVUE-TV, 3201 Steck Avenue,
Austin, Texas 78757.
27. Defendant, JIM BERGAMO, (hereinafter referred to as "BERGAMO"), is
a resident of TRAVIS COUNTY and a reporter for KVUE-TV, and may be served with
citation in this cause at his place of employment at KVUE-TV, 3201 Steck Avenue,
Austin, Texas 78757.
28. Defendant, KVUE-TV, is a news station in TRAVIS COUNTY, Texas,
who may be served with citation in this cause by serving the station manager or
registered agent at its place of business at 3201 Steck Avenue, Austin, Texas 78757.
11
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 12 of 57
29. Defendant, KEYE, is a news station in TRAVIS COUNTY, Texas, who
may be served with citation in this cause by serving the station manager or registered
agent at its place of business at 10700 Metric Blvd., Austin, TX 78758.
30. Defendant, JAMES WILSON, (hereinafter referred to as "WILSON") is a
resident of WILLIAMSON COUNTY, Texas, is the Sheriff of WILLIAMSON
COUNTY, and may be served with citation in this cause by serving him at his place of
employment with the WILLIAMSON COUNTY Sheriff's Office at 508 Rock Street,
Georgetown, Texas 78626. Each of the acts complained of herein arise from the conduct
of Defendant while acting under color of state law, and was committed within the scope
of his employment and authority with the WILLIAMSON COUNTY Sheriffs
Department, WILLIAMSON COUNTY, Texas. WILSON is being sued in his personal
and official capacity.
31. Defendant, WILLIAMSON COUNTY SHERIFF'S DEPARTMENT
(hereinafter referred to as "WCSD") operates in WILLIAMSON COUNTY, Texas, and
may be served with citation in this cause by serving the Sheriff, JAMES WILSON, at 508
Rock Street, Georgetown, Texas 78626.
32. Defendant, KATHLEEN GITTEL, (hereinafter referred to as "GITTEL"),
is a resident of WILLIAMSON COUNTY, Texas, and may be served with citation in this
cause by serving her at Liberty Hill, Texas 78642.
33. Defendant, HAROLD POPPA, (hereinafter referred to as "POPPA"), is a
resident of Burnet County, Texas, and may be served with citation in this cause by
serving him at 642 Balcones Ridgeway, Bertram, Texas 78605-4075.
12
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 13 of 57
34. Defendant, MICHAEL SCHEFFLER, (hereinafter referred to as
"SCHEFFLER"), is a resident of WILLIAMSON COUNTY, Texas, and may be served
with citation in this cause by serving him at his place of employment with Texas
Department of Public Safety at 5805 North Lamar Boulevard or 6121 North Lamar
Boulevard, Austin, Texas (512) 424-2076; (512) 424-2000. Each of the acts complained
of herein arise from the conduct of Defendant while acting under color of state law, and
was committed within the scope of his employment and authority with the Texas
Department of Public Safety. SCHEFFLER is being sued in his personal and official
capacity.
35. Defendant, D. HERNANDEZ, (hereinafter referred to as
"HERNANDEZ"), is a resident of WILLIAMSON COUNTY and a deputy for the
WCSD, who may be served with citation in this cause at her place of employment at the
WCSD at 508 Rock Street, Georgetown, Texas 78626. Each of the acts complained of
herein arise from the conduct of Defendant while acting under color of state law, and was
committed within the scope of his employment and authority with the WILLIAMSON
COUNTY Sheriff's Department of WILLIAMSON COUNTY, Texas. HERNANDEZ is
being sued in her personal and official capacity.
36. Defendant, NICK RICHTER, (hereinafter referred to as "RICHTER"), is a
resident of WILLIAMSON COUNTY and a deputy for the WCSD, who may be served
with citation in this cause at his place of employment at the WCSD at 508 Rock Street,
Georgetown, Texas 78626. Each of the acts complained of herein arise from the conduct
of Defendant while acting under color of state law, and was committed within the scope
of his employment and authority with the WILLIAMSON COUNTY Sheriffs
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Department of WILLIAMSON COUNTY, Texas. RICHTER is being sued in his
personal and official capacity.
37. Defendant, RUSSELL TRAVIS, (hereinafter referred to as "TRAVIS"), is
a resident of WILLIAMSON COUNTY and a deputy for the WCSD, who may be served
with citation in this cause at his place of employment at the WCSD at 508 Rock Street,
Georgetown, Texas 78626. Each of the acts complained of herein arise from the conduct
of Defendant while acting under color of state law, and was committed within the scope
of his employment and authority with the WILLIAMSON COUNTY Sheriff's
Department of WILLIAMSON COUNTY, Texas. TRAVIS is being sued in his personal
and official capacity.
38. Defendant, PAUL BOGAN, (hereinafter referred to as "BOGAN"), is a
resident of WILLIAMSON COUNTY and a deputy for the WCSD, who may be served
with citation in this cause at his place of employment at the WCSD at 508 Rock Street,
Georgetown, Texas 78626. Each of the acts complained of herein arise from the conduct
of Defendant while acting under color of state law, and was committed within the scope
of his employment and authority with the WILLIAMSON COUNTY Sheriff's
Department of WILLIAMSON COUNTY, Texas. BOGAN is being sued in his personal
and official capacity.
39. Defendant, ROBERT NEWELL, (hereinafter referred to as "NEWELL"),
is a resident of WILLIAMSON COUNTY and a deputy for the WCSD, who may be
served with citation in this cause at his place of employment at the WCSD at 508 Rock
Street, Georgetown, Texas 78626. Each of the acts complained of herein arise from the
conduct of Defendant while acting under color of state law, and was committed within
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the scope of his employment and authority with the WILLIAMSON COUNTY Sheriffs
Department of WILLIAMSON COUNTY, Texas. NEWELL is being sued in his
personal and official capacity.
40. Defendant, PETE HUGHEY, (hereinafter referred to as "HUGHEY"), is a
resident of WILLIAMSON COUNTY and a deputy for the WCSD, who may be served
with citation in this cause at his place of employment at the WCSD at 508 Rock Street,
Georgetown, Texas 78626. Each of the acts complained of herein arise from the conduct
of Defendant while acting under color of state law, and was committed within the scope
of his employment and authority with the WILLIAMSON COUNTY Sheriffs
Department of WILLIAMSON COUNTY, Texas. HUGHEY is being sued in his
personal and official capacity.
41. Defendant, DOUG WAGGONER, (hereinafter referred to as
"WAGGONER"), is a resident of WILLIAMSON COUNTY and a deputy for the
WCSD, who may be served with citation in this cause at his place of employment at the
WCSD at 508 Rock Street, Georgetown, Texas 78626. Each of the acts complained of
herein arise from the conduct of Defendant while acting under color of state law, and was
committed within the scope of his employment and authority with the WILLIAMSON
COUNTY Sheriffs Department of WILLIAMSON COUNTY, Texas. WAGGONER is
being sued in his personal and official capacity.
42. Defendant, BELINDA BARTZ, (hereinafter referred to as "BARTZ"), is a
resident of WILLIAMSON COUNTY and a deputy for the WCSD, who may be served
with citation in this cause at her place of employment at the WCSD at 508 Rock Street,
Georgetown, Texas 78626. Each of the acts complained of herein arise from the conduct
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of Defendant while acting under color of state law, and was committed within the scope
of his employment and authority with the WILLIAMSON COUNTY Sheriff's
Department of WILLIAMSON COUNTY, Texas. BARTZ is being sued in her personal
and official capacity.
43. Defendant, JEREME BRINKMANN, (hereinafter referred to as
"BRINKMAINN"), is a resident of WILLIAMSON COUNTY and a deputy for the
WCSD, who may be served with citation in this cause at his place of employment at the
WCSD at 508 Rock Street, Georgetown, Texas 78626. Each of the acts complained of
herein arise from the conduct of Defendant while acting under color of state law, and was
committed within the scope of his employment and authority with the WILLIAMSON
COUNTY Sheriff's Department of WILLIAMSON COUNTY, Texas. BRINKMANN is
being sued in his personal and official capacity.
44. Defendant, RICHARD DE LA VEGA, (hereinafter referred to as "DE LA
VEGA"), is a resident of WILLIAMSON COUNTY and a deputy for the WCSD, who
may be served with citation in this cause at his place of employment at the WCSD at 508
Rock Street, Georgetown, Texas 78626. Each of the acts complained of herein arise from
the conduct of Defendant while acting under color of state law, and was committed
within the scope of his employment and authority with the WILLIAMSON COUNTY
Sheriff's Department of WILLIAMSON COUNTY, Texas. DE LA VEGA is being sued
in his personal and official capacity.
45. Defendant, JOHN FOSTER, (hereinafter referred to as "FOSTER"), is a
resident of WILLIAMSON COUNTY and a deputy for the WCSD, who may be served
with citation in this cause at his place of employment at the WCSD at 508 Rock Street,
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Georgetown, Texas 78626. Each of the acts complained of herein arise from the conduct
of Defendant while acting under color of state law, and was committed within the scope
of his employment and authority with the WILLIAMSON COUNTY Sheriff's
Department of WILLIAMSON COUNTY, Texas. FOSTER is being sued in his personal
and official capacity.
46. Defendant, DALE RYE, (hereinafter referred to as "RYE"), is a resident
of WILLIAMSON COUNTY and a prosecutor for WILLIAMSON COUNTY, Texas,
who may be served with citation in this cause at his place of employment at 405 M.L.K.,
Suite 240, Georgetown, Texas 78626. Each of the acts complained of herein arise from
the conduct of Defendant while acting under color of state law, and was committed
within the scope of his employment and authority with the WILLIAMSON COUNTY
Attorney's Office of WILLIAMSON COUNTY, Texas. RYE is being sued in his
personal and official capacity.
47. Defendant, DEE HOBBS, (hereinafter referred to as "HOBBS"), is a
resident of WILLIAMSON COUNTY and a prosecutor for WILLIAMSON COUNTY,
Texas, who may be served with citation in this cause at his place of employment at the
WILLIAMSON COUNTY Attorney's Office at 405 M.L.K., Suite 240, Georgetown,
Texas 78626. Each of the acts complained of herein arise from the conduct of Defendant
while acting under color of state law, and was committed within the scope of his
employment and authority with the WILLIAMSON COUNTY Attorney's Office of
WILLIAMSON COUNTY, Texas. HOBBS is being sued in his personal and official
capacity.
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48. Defendant, SUZANNE BROOKS, (hereinafter referred to as
"BROOKS"), is a resident of WILLIAMSON COUNTY and a county court at law judge
for WILLIAMSON COUNTY, Texas, who may be served with citation in this cause at
her place of employment at the WILLIAMSON COUNTY Courthouse, County Court at
Law No. 2, 405 MLK, Georgetown, Texas 78626. Each of the acts complained of herein
arise from the conduct of Defendant while acting under color of state law, and was
committed within the scope of her employment and authority with WILLIAMSON
COUNTY, Texas. BROOKS is being sued in her personal and official capacity.
49. Defendant, JOHN BRADLEY, (hereinafter referred to as "BRADLEY"),
is a resident of WILLIAMSON COUNTY and a prosecutor for WILLIAMSON
COUNTY, Texas, who may be served with citation in this cause at his place of
employment at the WILLIAMSON COUNTY District Attorney's Office at 405 M.L.K.
Street, Suite 265, Georgetown, TX 78626. Each of the acts complained of herein arise
from the conduct of Defendant while acting under color of state law, and was committed
within the scope of his employment and authority with WILLIAMSON COUNTY,
Texas. BRADLEY is being sued in his personal and official capacity.
50. Defendant, TRAVIS MCDONALD, (hereinafter referred to as
"MCDONALD"), is a resident of WiLLIAMSON COUNTY and a prosecutor for
WILLIAMSON COUNTY, Texas, who may be served with citation in this cause at his
place of employment at the WILLIAMSON COUNTY District Attorney's Office at 405
M.L.K. Street, Suite 265, Georgetown, TX 78626. Each of the acts complained of herein
arise from the conduct of Defendant while acting under color of state law, and was
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committed within the scope of his employment and authority with WILLIAMSON
COUNTY, Texas. MCDONALD is being sued in his personal and official capacity.
51. Defendant, ROBERT MCCABE, (hereinafter referred to as "MCCABE"),
is a resident of WILLIAMSON COUNTY and a prosecutor for WILLIAMSON
COUNTY, Texas, who may be served with citation in this cause at his place of
employment at the WILLIAMSON COUNTY District Attorney's Office at 405 M.L.K.
Street, Suite 265, Georgetown, TX 78626. Each of the acts complained of herein arise
from the conduct of Defendant while acting under color of state law, and was committed
within the scope of his employment and authority with WILLIAMSON COUNTY,
Texas. MCCABE is being sued in his personal and official capacity.
52. Defendant, ALAN SCHREIBER, (hereinafter referred to as
"SCHREIBER"), is a resident of WILLIAMSON COUNTY and a court appointed
lawyer for WILLIAMSON COUNTY, Texas, who may be served with citation in this
cause at his place of employment at 1708 Blue Heron Cove, Round Rock TX 78681.
53. Defendant, KEN ANDERSON, (hereinafter referred to as
"ANDERSON"), is a resident of WILLIAMSON COUNTY and a former district
attorney, magistrate, and district judge for WILLIAMSON COUNTY, Texas, who may
be served with citation in this cause at his place of employment at WILLIAMSON
COUNTY Courthouse, 277th Judicial District Court, 405 MLK, Georgetown, Texas
78626. Each of the acts complained of herein arise from the conduct of Defendant while
acting under color of state law, and was committed within the scope of his employment
and authority with WILLIAMSON COUNTY, Texas. ANDERSON is being sued in his
personal and official capacity.
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54. Defendant, BURT CARNES, (hereinafter referred to as "CARNES"), is a
resident of WILLIAMSON COUNTY and a district judge for WILLIAMSON
COUNTY, Texas, who may be served with citation in this cause at his place of
employment at WILLIAMSON COUNTY Courthouse, 368th Judicial District Court, 405
MLK, Georgetown, Texas 78626. Each of the acts complained of herein arise from the
conduct of Defendant while acting under color of state law, and was committed within
the scope of his employment and authority with WILLIAMSON COUNTY, Texas.
CARNES is being sued in his personal and official capacity.
55. Defendant, LLOYD DOUG SHAVER, (hereinafter referred to as
"SHAVER"), P.O. Box 8693, Horseshoe Bay, TX 78657, Office: 830-598-8242, or
through the WILLIAMSON COUNTY Courthouse, 368th Judicial District Court at 405
MLK, Georgetown, Texas 78626, where he is serving as a visiting judge. SHAVER is
being sued in his personal and official capacity.
56. Defendant, MARTY GRIFFITH, (hereinafter referred to as "GRIFFITH"),
is a resident of WILLIAMSON COUNTY and a probation officer for WILLIAMSON
COUNTY, Texas, who may be served with citation in this cause at his place of
employment at WILLIAMSON COUNTY Adult Probation - Main Office, 301 Timer
Loop Road, Georgetown, TX 78626. Each of the acts complained of herein arise from
the conduct of Defendant while acting under color of state law, and was committed
within the scope of his employment and authority with WILLIAMSON COUNTY,
Texas. GRIFFITH is being sued in his personal and official capacity.
57. Defendant, WILLIAMSON COUNTY, TEXAS, may be served with
citation in this cause by serving the County Judge, Dan A. Gattis, at his place of
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employment at WILLIAMSON COUNTY Courthouse at 710 5. Main Street, Ste. 101,
Georgetown, TX 78626, Phone: (512) 943-1550.
58. Defendant, JOHN CLIFTON, (hereinafter referred to as "CLIFTON"), is a
resident of TRAVIS COUNTY and an investigator for the federal marshals or federal
courthouse security, and may be served with citation in this cause at his place of
employment at the U.S. District Courthouse, 200 West 8th Street Austin, TX 78701.
Each of the acts complained of herein arise from the conduct of Defendant while acting
under color of state law, and was committed within the scope of his employment and
authority with the federal government. CLIFTON is being sued in his personal and
official capacity.
59. Defendant, DUSTY HUMES, (hereinafter referred to as "HIJMES"), is a
resident of TRAVIS COUNTY and a clinical psychologist, who may be served with
citation at her place of business at 901 5. Mo-Pac, Ste. 1-480, Austin, Texas 78746 or at
2201 San Pedro NE, Building 4, Ste. 102, Albuquerque, New Mexico 87110. See
www.dustyhumesphd.net
60. Defendant, DAVID RUPPART, (hereinafter referred to as "RUPPART"),
is a resident of WILLIAMSON COUNTY and a deputy for the WCSD, who may be
served with citation in this cause at his place of employment at the WCSD at 508 Rock
Street, Georgetown, Texas 78626. Each of the acts complained of herein arise from the
conduct of Defendant while acting under color of state law, and was committed within
the scope of his employment and authority with the WILLIAMSON COUNTY Sheriff's
Department of WILLIAMSON COUNTY, Texas. RUPPART is being sued in his
personal and official capacity.
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IV. ALLEGATION OF BASIC FACTS AND
EVENTS FORMING THE BASIS OF THE CLAIMS
1. Whenever, in this complaint it is alleged that any Defendant did any act,
thing, and/or omission, it is meant that Defendant and/or Defendant's co-conspirators,
agents, servants, employees, attorneys, or representatives did such act, thing and/or
omission and that at the time it was done with full authorization and/or ratification by
said Defendant.
2. On January 8, 2010, BARNES was physically assaulted from behind by
TUMLINSON as she was leaving the Heman Marion Sweatt TRAVIS COUNTY
Courthouse simply because she was calling to report his abusive behavior.
3. TUML1NSON jumped up and ran at BARNES and knocked her cell
phone out of her right hand as she attempted to place a call when she was leaving the
courthouse. BARNES had a legal right to make a telephone call from her cell phone as
she was exiting the building.
4. TUMLINSON was wearing a heavy, square, metal plate or vest under his
shirt and he forcefully rammed BARNES into the exit ropes after he forcefully slapped
her cell phone from her hand, causing it to crash to the floor. This brutal assault caused
the destruction and loss of the Blackberry cell phone and the loss of BARNES' diamond
bracelet.
5. After violently knocking the phone out of her hand and ramming her into
the exit ropes, TUMLINSON forcefully grabbed BARNES' right wrist and pulled her
right arm and twisted it up behind her back and violently rammed her into the brick wall
and announced loudly that she was under arrest. When BARNES responded that there
was nothing illegal about making a cell phone call, TUML1NSON stated that BARNES
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had hit him when it was only TUMLINSON doing the hitting and engaging in aggressive,
violent, and retaliatory behavior.2
6. The unwarranted and brutal assault occurred in a public building during
business hours. BARNES was not engaging in any illegal activity or criminally
trespassing as this was public property, and BARNES was there conducting business with
the court and engaging in her profession as an officer of the court. This was not the first
time that TUML1NSON had behaved inappropriately and obnoxiously towards an officer
of the court.3
7. TUML1NSON was not lawfully discharging any official duty under the
law. TUMLINSON enjoys no immunity, qualified or otherwise, for his malicious and
unconstitutional actions because no reasonable law enforcement officer would have
reasonably believed that his actions were lawful, legal, and constitutional.
8. BARNES told TUMLINSON very clearly that he would have to commit
aggravated perjury if he persisted with his false allegations, but TUMLINSON proceeded
nevertheless with a conscious disregard and deliberate indifference towards the rights,
safety, and welfare of Plaintiffs. TUMLINSON acted with utmost confidence in his
criminal behavior because he knew he would get away with it because his fellow
employees and the TRAVIS COUNTY attorneys, agents, elected officials, and
representatives would cover-up his illegal and unconstitutional activity as it is in their
mutual best interests to do so, including but not limited to, KLEKAR, COTTON,
2
TTJMLINSON had a known history of being abusive and obnoxious to others; but there was a complete
failure to properly discipline, train, and supervise him. He should never have been placed in a position to
be in contact with the public, untrained and unsupervised.
The prior January 2009, TUMLINSON had intentionally knocked another lawyer's personal property and
papers to the ground after engaging in a rude altercation. A complaint was filed against TUMLThTSON,
however, the TCSD and TRAVIS COUNTY failed to take any corrective or remedial action, such as
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LERMA, UNIDENTIFIED THREE, HAMILTON, SWAIM, ESCAMILLA, MORGAN,
GUERRERO, and SAENZ.
9. TUMLINSON, HAMILTON, and KLEKAR also received encouragement
and false defamatory per se information from WCSD and WILLIAMSON COUNTY
when they were contacted immediately after the false arrest of BARNES, due to the
malicious flags they have kept on BARNES' driver's license for the past decade.
10. TRAVIS COUNTY, TCSD, TRAVIS COUNTY ATTORNEY'S
OFFICE, HAMILTON, KLEKAR, ESCAMILLA, SWAIM, and others were negligent
and grossly negligent in placing TUMLINSON in a position to interact with the public
based upon his known propensities to engage in bullying, inappropriate behavior, and
violence. These Defendants were negligent and grossly negligent in hiring, retaining, and
failing to supervise, train, and discipline TUMLINSON when he exhibited all these anti-
social propensities from the inception of his employment.4 Had these Defendants taken
appropriate action even as late as the year prior to this latest assault when they received a
complaint from another lawyer about TUMLINSON's bad behavior in this position
interacting with the public, BARNES would not have been assaulted and sustained such
irreparable injury, harm, and damage.
11. After the brutal assault and false arrest, BARNES was initially taken to a
small room in the Jail where TUML1NSON grabbed her purse and started going through
it without her consent and confiscated her driver's license. TUMLINSON went to a
training or classes, or supervision, or appropriate disciplinary action. Had corrective or remedial action
been taken, perhaps the assault on BARNES would not have occurred in January 2010.
the end of his probationary period, the recommendation was NOT to hire, however, TUMLINSON was
able to convince his supervisor/evaluator that it was their fault for failing to properly train him. So, he was
hired in spite of the clear propensities he was already exhibiting. Also, he listed his prior employment with
Hays County and Gonzalez County; however, BARNES' freedom of information and open records requests
yielded no history of these entities ever employing him.
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computer and put in BARNES information from her driver's license and then said, "Well,
it looks like we need to call WILLIAMSON COUNTY; she may have some warrants out
for her arrest there." TUMLINSON and his superiors called WCSD and other employees
of WILLIAMSON COUNTY prior to drafting his probable cause affidavit. KLEKAR
came into the room and BARNES told her that someone needed to pull the video at the
courthouse immediately and see the truthBARNES had not assaulted TUML1NSON
and the video recording would prove that TUML1NSON ran at BARNES from behind
and assaulted her repeatedly. KLEKAR stated that she was a supervisor and assured
BARNES that she would immediately secure the videotape to ascertain the truth.
12. BARNES was subjected to a violent loss of rights, property, and
reputation as she was subjected to a false arrest, aggravated kidnapping, and further
aggravated sexual assault by the UNIDENTIED THREE while in custody. These
Defendants, TUML1NSON, HAMILTON, KLEKAR, and TCSD intentionally and
maliciously published a fabricated lie and committed aggravated perjury when they
released the knowingly false press release to the AUSTIN AMERICAN STATESMAN,
knowing that the newspaper would simply publish whatever they were told without a
good faith investigation into the facts or truth, and that it would then be republished on
the AP wire and become national news. These Defendants also knew that the AUSTIN
AMERICAN STATESMAN, through the use of the Internet and AUSTIN LEGAL
BLOG, would invite and allow further and continuing defamation against BARNES by
competitors and co-conspirators and even allow them to hide behind a cloak of secrecy as
they maliciously engaged in false and fraudulent personal attacks on BARNES and her
character, further destroying her right to be free from unreasonable searches and seizures,
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defamation, libel, character assassination, and right to be left alone, and thereby, deprived
her of a right to a fair jury trial before a fair and impartial tribunal, equal protection under
the law, due process, and due course of law. The false probable cause affidavit, false
arrest, and false imprisonment created a media frenzy whereby the media defendants,
STATESMAN, AUSTIN LEGAL BLOG, KXAN, KEYE, and KVUE television stations
published defamatory per se allegations causing further harm and damage to Plaintiffs
ist 4th 5th 6th
and this was a reasonably foreseeable result of the violations of BARNES' 1, , ,
14th
and amendment rights. The STATESMAN, RYALL, and AUSTIN LEGAL BLOG
further allowed ONE THAT KNOWS, ANOTHER THAT KNOWS, LIBERALS R.
CLUELESS, NATIVESON, and HURST to maliciously malign and personally attack
BARNES and further defame her with utmost malice and a specific intent to harm, injure,
and damage BARNES.
13. It has become the habit, practice, custom, policy and procedure of
TRAVIS COUNTY and WILLIAMSON COUNTY law enforcement and prosecutors to
use the media to deprive the accused of their constitutional rights; and they intentionally
draft and redraft probable cause affidavits to justify their arrests knowing that they will
serve as the press release and taint the public against the accused and reinforce the
public's misplaced trust in certain law enforcement employees and prosecutors who
abuse their position of public trust and power to oppress the citizens of this State and
Nation with malicious prosecutions motivated by hate, greed, and political ambition.
14. BARNES sustained bodily injury from the brutal aggravated assault by
TUMLINSON; however, when BARNES was taken to jail, she was deprived of medical
attention and not allowed to make any telephone calls. When BARNES arrived at the jail
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 27 of 57
and asked to speak to TUMLINSON's supervisor, she was told he had no supervisor.
BARNES diligently sought to have the video recording reviewed and have these false
allegations cleared up, so that she could be released. BARNES was scheduled to be in
court for a hearing and they would not even allow her to call and let the Judge know what
had happened.
15. BARNES repeatedly told every deputy present that TUMLINSON had
been the one who assaulted her and that she wanted to file a report and complaint against
him. All deputies absolutely refused to file a report or take any information from her.
BARNES was deprived of equal protection under the law, due process, and due course of
law in connection with the State's refusal to take her complaint, information, and file the
report of the criminal law violations by TUMLINSON. It is the habit, custom, policy
and procedure of the TCSD and WCSD to refuse to take any information or complaint
against one of their employees. A citizen assaulted by a law enforcement officer has no
recourse or remedy, which violates the Texas Open Courts Doctrine.
16. BARNES repeatedly told TUML1NSON, all deputies present, and
KLEKAR, that she had not assaulted TUMLINSON, that it was TUMLINSON who
brutally assaulted her, and that the security video tape would prove who assaulted whom.
TUMLINSON, KLEKAR, and Deputy Hill all assured BARNES that the video tape
would be secured and preserved. Both KLEKAR and Deputy Hill led BARNES to
believe that KLEKAR had actually pulled the video and was reviewing it.
17. BARNES was taken to a filthy closet and thrown inside still in handcuffs.
The deputies started stripping off BARNES jewelry behind her back without even
removing the handcuffs. BARNES' watch was damaged and had to be repaired because
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they were not even trying to be careful, they were just forcefully yanking everything off
Deputy Hill had told BARNES that she would be allowed to make a call. COTTON
came in and started bullying BARNES and stated that BARNES would not be allowed to
make a call to anyone. Requests for medical attention for the injuries sustained during
TUMLINSON's assault were denied. COTTON, KLEKAR, TUMLINSON, and
LERMA refused to clean the open bleeding wounds and just tossed one band-aid at
BARNES. BARNES was left alone in an extremely filthy closet. It was several hours
later when BARNES was allowed to make a call after COTTON had left for the day.
18. After KLEKAR reviewed the video and saw the truth, she came to the jail
and pulled LERMA off to the side and discussed BARNES with him. They discussed
what to do with BARNES due to the obvious false arrest, aggravated assault, aggravated
kidnapping, and other crimes committed by TUMLINSON and his use of excessive force
on an officer of the court. LERMA had previously told BARNES he would talk to her
"in a minute" before KLEKAR pulled him aside. When LERMA finished the discussion
with KLEKAR, he came back to the small window on the door of the filthy closet and
said "Second thought, I don't need to talk to you." Then, in a menacing and snide tone,
he said, "Enjoy the ride." BARNES was then allowed to make a call and then told that
she was being taken to "special housing for people who hit cops." Everyone just kept
pretending that BARNES had actually assaulted TUMLINSON and they were therefore
punishing her for his bad behavior.
19. BARNES was then taken to a back area of the jail where she was held
down and violently stripped completely naked and brutally assaulted by the
UNIDENTIFIED THREE while LERMA watched with another male and laughed. This
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brutal and barbaric behavior was clearly the habit, practice, and custom of these jail
personnel who brutally assault and violently punish and injure arrestees in violation of
the law and the Constitution. This conduct was shocking, outrageous, against public
policy, and not tolerated in a civilized society.
20. BARNES was left in a freezing cold room without pants, blanket, or food.
BARNES was deprived of any and all medical care and had to go directly to the
emergency room when she was finally released.
21. BARNES was held until after midnight even though her lawyer posted her
bond hours earlier. Due to calls made to WCSD, the WCSD flags on her driver's license,
and the fact that TUMLINSON had assaulted BARNES, COTTON and/or LERMA had
placed a "medical hold" on BARNES so that she could not be released even though her
bond had been posted. BARNES was held for 12 hours without being afforded any
medical care for the injuries sustained in the aggravated assault, food or water, or any
other basic necessities.
22. While BARNES was being released, she immediately reported the missing
diamond bracelet and missing money taken from her purse. In response, she was
assaulted again. TUML1NSON had also stepped on BARNES' coat and ripped it in the
back when he yanked it up while still standing on the sleeve. Immediately upon her
release BARNES was barely able to drive to the emergency room, where she spent the
next 8 hours; then another 4 hours in waiting area and car before she was able to drive
home. BARNES had to cancel all her appointments the following week. BARNES
suffered an extreme infection all over her face that took over a year to get rid of as a
direct and proximate result of the filthy jail conditions.
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23. TUML1NSON and his superiors emailed the probable cause affidavit back
and forth until it was defamatory enough to destroy BARNES' credibility, presumption
of innocence, and reputation in the media. TCSD and TRAVIS COUNTY have at all
times failed and refused to produce the different drafts of the probable cause affidavits,
despite numerous requests for same. They clearly wanted to maximize the damage to
BARNES to protect TUMLINSON and cover-up for his assault on an officer of the court
while acting under color of state law. TCSD made the deliberate, intentional, and
knowing decision to help cover-up for TUMLINSON and protect him from the
consequences of his actions because these were his superiors assisting him and editing
and approving his drafts of the probable cause affidavit.
24. Predictably, the AUSTiN AMERICAN STATESMAN, KXAN, KVUE,
and KEYE, not only ran the defamatory per se false accusations contained in the
probable cause affidavit without even attempting to get BARNES' side or talk to
BARNES' attorney, but the AUSTiN AMERICAN STATESMAN also provided a forum
that allowed BARNES' competitors and the co-conspirators to defame and personally
attack BARNES even more on the Internet. This forum is called the AUSTIN LEGAL
BLOG and RYALL is employed by the AUSTIN AMERICAN STATESMAN and was
permitted to make his own rude and derogatory comments on the Internet. The other
lawyers who were allowed to post defamatory per se statements and personal attacks on
BARNES were allowed to hide behind aliases; to-wit: "ONE THAT KNOWS,"
"ANOTHER THAT KNOWS," "LIBERALS R. CLUELESS," "NATIVE SON," and
"HURST," in order to deprive BARNES of a fair trial and the presumption of innocence.
This defamation is permanent and irreversible. The AUSTIN AMERICAN
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STATESMAN has failed and refused to disclose the names of these malicious individuals
despite formal discovery requests for same. BARNES has been deprived of her right to
pursue her claims by this policy of providing a forum for defamation and then protecting
those who defame their competitors. This action violates the Texas Open Courts
Doctrine and Texas Deceptive Trade Practices Consumer Protection Act, Sec. 17.46(8)
"Disparaging the goods, services, or business of another by false or misleading
representation of fact"), because it allows competitors and the coconspirators to disparage
BARNES with impunity, in violation of Texas Constitution, Art. I, § 8.
25. An equally foreseeable consequence of the false and fraudulent probable
cause affidavit was the media sensationalism by CARGILE for KXAN, by NEWTON
and BERGAMO for KVUE, and by reporters at KEYE. These reports repeated the false
allegations made by TUML1NSON andlor his supervisors who edited and approved the
probable cause affidavit, knowing it would serve as a press release and be repeated all
over the mass media on a national level.
26. Another foreseeable consequence, were the numerous blogs making
defamatory comments and statements in response to the false and fraudulent probable
cause affidavit, particularly LAWYERSTIGERSANDBEARS.BLOGSPOT.COM.
27. It was reasonably foreseeable that the false arrest and imprisonment, false
and fraudulent affidavit, media sensationalism, and Internet publication would result in
permanent harm, injury, and damage to BARNES' reputation, credibility, and livelihood;
and would cause serious mental anguish and extreme emotional distress to Plaintiffs. All
of this media frenzy was encouraged and fueled by the defamation per se from
WILLIAMSON COUNTY, WCSD, and various employees, deputies, and prosecutors
31
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employed by WILLIAMSON COUNTY.
28. BARNES diligently attempted to secure a copy of the video recording of
TUMLINSON's violent assault from behind that was captured on the courthouse security
cameras to prove the truth, clear her name, and mitigate damages, to no avail. All of
BARNES' efforts at discovery were blocked, stalled, and thwarted by TCSD and
TRAVIS COUNTY and their prosecutors, including but not limited to SWAIM and
ESCAMILLA. BARNES even sought the assistance of the Texas Attorney General
under the Texas Open Records and Public Information Act, but ESCAMILLA fought
those requests as well.
29. BARNES attempted to visit with the TRAVIS COUNTY prosecutors
concerning the presentation of this incident to the grand jury and attempted to secure a
copy of the video recording or at least view the recording and other pertinent discovery,
to no avail. Calls were not returned and no one would come out and visit with BARNES.
The prosecutors refused to provide any means for BARNES to present her charges
against TUMLINSON to the grand jury. BARNES was told that only the district attorney
could present cases to the grand jury. BARNES went to TRAVIS COUNTY Victim's
Services, but they refused to see her or offer her any assistance because she was "in the
system," so they could not talk to her. There literally is no avenue for citizens assaulted,
harmed, injured, or damaged by a law enforcement officer or employee of TRAVIS
COUNTY or WILLIAMSON COUNTY to gain access to the criminal justice system or
pursue a claim. BARNES even called the Austin Police Department since the assault
took place within the city limits of Austin, Texas; however, she was told that the TCSD
had exclusive jurisdiction over investigations of assaults in the TRAVIS COUNTY
32
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courthouse. Therefore, it is the intentional, deliberate, and knowing policy, practice, and
custom of TCSD and TRAVIS COUNTY to make sure that no person attacked or injured
by a TCSD employee or other TRAVIS COUNTY employee can file a complaint or
"petition the Government for a redress of grievances." (U.S.Const. Amend. 1). This
violates the Texas Bill of Rights, equal protection under the law and due process.
30. BARNES then prepared packets for presentment to the grand jury and sent
those packets to the next four grand juries that were impaneled, to no avail. The TRAVIS
COUNTY employees and prosecutors would intercept the mail that was clearly addressed
to the Foreman of the Grand Jury, and fail to present it to the respective grand juries.
BARNES sent the packets certified mail return receipt requested and properly addressed
to the Foreman of the Grand Jury in care of the District Judge who impaneled the grand
jury. BARNES reported the interception and interference with the mail to the U.S.
Postmaster, who following an investigation, stated that the four packets were delivered to
the TRAVIS COUNTY courthouse and were then diverted by the TRAVIS COUNTY
internal mail room. It costs BARNES great time and expense to prepare and deliver these
packets. The law provides that "any credible person" may present maters to the grand
jury for investigation. However, it is the policy, habit, custom, and practice of TRAVIS
COUNTY and WILLIAMSON COUNTY to block ordinary citizens from having access
to the grand juries and to ensure that only its prosecutors can access and control the grand
jury process. Thus, the grand juries have lost their independence and are nothing more
than puppets of the prosecutors. The system is intentionally designed to provide only one
side to the grand jurythe State's side; thereby depriving the citizens of their right to
grand jury protection from vindictive or malicious prosecutions, due process, redress of
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grievances, and equal protection under the law.
31. BARNES still has not been able to view the videotaped recording from the
courthouse security camera or obtain a copy of it. TRAVIS COUNTY, acting through
TCSD, HAMILTON, KLEKAR, ESCAMILLA, SWAIM, and the TRAVIS COUNTY
Attorney's Office have obstructed and prevented BARNES from timely and meaningful
access to the best evidence of the truth in order to prevent her from proving that
TUML1NSON had assaulted her from behind and that BARNES did not ever hit
TUML1NSON. These Defendants were not concerned about the truth, but were only
concerned with cover-up and escaping any liability or accountability. These Defendants
knew that TUMLINSON had committed an aggravated assault, aggravated kidnapping,
and aggravated perjury; but they not only covered-up for him, they continued to place
him in the same position to interact with the public with absolutely no supervision
whatsoever.
32. While covering up for TUML1NSON, TRAVIS COUNTY and its
prosecutors, SWAIM and ESCAMILLA, also obstructed justice. Employees and
attorneys for TRAVIS COUNTY, Texas, including SWAIM, and ESCAMILLA have at
all times blocked, obstructed, hindered, and prevented BARNES from obtaining
exculpatory evidence and a fair and speedy trial; as well as from filing any complaint
against TUMLINSON or any of the other deputies who brutally assaulted, stripped, and
violated her rights while in custody, and who subjected her to repeated false arrests and
false imprisonments in retaliation against her for attempting to pursue her complaints and
secure justice.5
Just in Travis County alone, BARNES was subjected to three false arrests and false imprisonments within
a 6 month time frame, arising out of the same TUMILINSON incident. These were all as a result of the
34
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33. Thus, the violent offender is protected and the real victim is retaliated
against in violation of equal protection, due process, due course of law and other valuable
rights secured by the 1st 4th 5th 6th 8th 9th
and 14th amendments to the United States
Constitution and by Texas Constitution, Art. I, Sections 3, 3a, 8, 9, 10, 11, 13, 16, 17, 19,
27, 28, and 29.
34. The unconstitutional actions, misbehavior, and abuse by TRAVIS
COUNTY, TCSD, TUMLINSON, KLEKAR, LERMA, COTTON, UNIDENTIFIED
THREE, SWAIM, MORGAN, SAENZ, GUERRERO, ESCAMILLA, and HAMILTON
were caused by the defamation and hatred from WILLIAMSON COUNTY, WCSD,
WILSON, RYE, HOBBS, and various employees and policy makers of WILLIAMSON
COUNTY, who have harassed, assaulted, subjected to repetitive false arrests, malicious
prosecutions, and defamation for 15 years in retaliation against her for her zealous
representation of clients, exposure of their corruption, and filing civil suits against them.
35. In WILLIAMSON COUNTY, for the past 15 years BARNES has been a
vocal critic of the customs, habits, practices, policies, and procedures of the
WILLIAMSON COUNTY Criminal Justice system, especially the wayward deputies
who trample on civil and constitutional rights with great pride, bravado, and fanfare, the
malicious prosecutors who train and encourage these overt violations, and certain
politically motivated or self-interested judges who do absolutely nothing to correct it.6
criminal conspiracy with WCSD, WILLIAMSON COUNTY, HOBBS, RYE, BRADLEY, MCCABE,
MCDONALD, and other employees of WILLIAMSON COUNTY.
6
Once BARNES is able to access her files, records, and evidence, BARNES will be able to present
numerous incidents, misbehavior, criminal activity, abuses, malicious and politically motivated
prosecutions, and retaliation over the past 15 years of BARNES, her clients, and others similarly situated to
show the habit, practice, custom, practice, policy, and procedure of WILLIAMSON COUNTY derived
from its extensive KKK affiliations and that same resulting mentality, which they like to euphuistically
refer to as the "good ole boy" system to cover up the racist, sexist, and "economic cleansing" intent.
BARNES has sought and been denied any recourse by the state and federal courts, which has only fueled
35
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BARNES has repeatedly placed WILLIAMSON COUNTY on notice of this criminal
activity by the deputies, prosecutors, and other employees. WILLIAMSON COUNTY
has been on notice since 1997, and especially since 1999 when BARNES filed her initial
action against the WCSD, sheriff, and WILLIAMSON COUNTY under Cause No. 99-
360-C368 filed in CARNES' court. The WILLIAMSON COUNTY commissioner's
court would have executive session meetings with RYE and others concerning the
allegations in that litigation, and they led a vicious and malicious retaliatory campaign
against BARNES and subjected her to numerous false arrests, harassment, and abuse ever
since that time. The attorney for WILLIAMSON COUNTY, WCSD, and
WILLIAMSON COUNTY Commissioner's Court, for civil litigation, Mike Davis, was
the first to start the "mental illness" defamatory per se campaign during that litigation and
conspired with Kevin Madison to have BARNES arrested from her office on Main Street,
the first day she moved her office from TRAVIS COUNTY to WILLIAMSON
COUNTY on another false and bogus arrest. Thus, WILLIAMSON COUNTY, WCSD,
WILSON, WILLIAMSON COUNTY Commissioner's Court, and all the top policy
makers of WILLIAMSON COUNTY have known about this malicious conspiracy
against BARNES for over a decade, and they have encouraged it and done nothing to
resolve it or rectify the situation caused by the false arrests, compounding harassment,
and flamed, encouraged and escalated, the abuse and open hostility. BARNES has been assaulted from
behind three times by male deputies at a courthouse while conducting business. BARNES has been
subjected to over a dozen false arrests, and her children have been subjected to harassment, accusations,
and abuses in school because it is the habit, practice, and custom of WILLIAMSON COUNTY and WCSD,
to attack their targets through children and often use school employees and CPS investigators to harass,
injure, and harm the children to get to the parents or get to the parents though the schools or CPS. Both of
BARNES' children were subjected to false accusations of crime, illegal searches and seizures, and had their
personal property stolen from them by WILLIAMSON COUNTY law enforcement employees. The events
covered in this pleading are the tip of the iceberg of what BARNES and her children have been subjected to
over the past 15 years, just for BARNES standing up to these corrupt bullies. The custom, habit and
36
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malicious prosecutions, and defamatory "caution flags" and other derogatory comments
made when anyone runs BARNES' driver's license number. They have not even
attempted to make a good faith investigation into these matters and have failed and
refused to respond in any meaningful manner to the numerous letters and attempts to
resolve this dispute sent by BARNES over the years. BARNES even deposed the sheriff
and county judge during the second case against WILLIAMSON COUNTY. Thus, all of
these unlawful acts were done or approved by the persons with final policy-making
authority.
36. BARNES has a wealth of experiences and cases that will prove this
pattern, practice, habit, custom, policy, and procedure that is ingrained and endemic in
WILLIAMSON COUNTY. However, this court has advised of the Rule 8 limits on
pleadings and notice of intent to dismiss, therefore, BARNES cannot plead them all now
to show the habit, practice, custom, policy and procedure of WILLIAMSON COUNTY,
WCSD, and the malicious prosecutors. The last case, the Arnold Garza case, starting in
early 2010, was so replete with corruption that it led to the immediate retaliation against
BARNES that actually began during the time BARNES was representing Arnold Garza.
37. In order to demonstrate the habit, practice, and custom of WILLIAMSON
COUNTY and its law enforcement officers and prosecutors, the Arnold Garza case is
relevant because the same tactics were used against BARNES as were used against
Arnold Garza and others. The Round Rock Police Department acted illegally and
unconstitutionally on December 14, 2009 when they unlawfully entered the habitation of
Arnold Garza without a warrant or probable cause in violation of United States
pattern will be amply established and there will be no doubt in any objective persons mind that these were
not isolated incidents, but were calculated, concerted efforts to run BARNES out of town and discredit her.
37
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Constitution Amend. 4, 14 and Texas Constitution, Art. I § 9. Arnold Garza was initially
thrown on the floor in his own home and told he was being arrested for "failure to ID;"
then when they took him to jail and discovered that he had given his correct name and
date of birth, they charged him with the vague and overly broad favorite, "interference
with the duties of a police officer."7
38. WILLIAMSON COUNTY Attorney's Office, (RYE, FIOBBS, and
Melissa Hervey, Justice of Texas Court of Criminal Appeals Barbara Flervey' s daughter),
consistent with their habit, practice, and custom maliciously prosecuted Arnold Garza,
and BROOKS blatantly violated Arnold Garza's constitutional and legal rights, as is her
custom, practice, and habit. BROOKS pulled out the play book to protect the county
from civil liability when rights are violated, and threw Arnold Garza in jail for six months
for "contempt of court" then court appointed a lawyer so she could institute C.C.P. art.
46B and thereby incarcerate him indefinitely without any semblance of due process until
he is ready to plead guilty to gain his freedom.
39. After the commitment order was entered, BARNES was retained and filed
a motion to recuse BROOKS. The case should have been transferred to one of the other
two county judges; however, BROOKS, as is the custom and habit of judges wanting to
throw a case, immediately caused Judge Stubblefield's secretary to abuse his rubber
stamp and assign a "visiting judge" to the case. The "visiting judge" selected was not
even on the approved list for appointments in this administrative district. This "visiting
Of all the frivolous and false arrests and malicious prosecutions heaped on BARNES since 1997,
"interference with the duties of a public servant" has been the only conviction because you can literally
convict anyone under that statute. That malicious prosecution was by RYE as well. BARNES was actually
arrested for "evading arrest and refusal to sign the traffic citation" but when those allegations proved to be
false, the charges morphed into "interference with duties" just like Arnold Garza' s false arrest was
transformed.
38
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judge" was selected because he was a close family friend and political cohort of Justice
Barbara Hervey and her daughter, Melissa Hervey, was the prosecutor maliciously
prosecuting the case with HOBBS and RYE.
40. BARNES has a long contentious history with HOBBS and RYE because
they engage in overt illegal, unethical, and retaliatory activities and have for years.8
BARNES has repeatedly reported their abuses of office, to no avail. All actions set forth
herein by RYE were supervised, directed, and ratified by HOBBS.
41. BARNES exposed the abuse and constitutional violations, and corruption
of the "forensic expert" and got the commitment order reversed because it was nothing
but a fraudulent ruse. BARNES was targeted when she represented Arnold Garza and
exposed the criminal conspiracy and illegal combination headed by RYE, HOBBS, and
the WILLIAMSON COUNTY Attorney's Office and BROOKS, which then, in
retaliation, turned on BARNES and her family. Thereafter, at the request and instigation
of HOBBS, RYE, BROOKS, and others, MCDONALD, MCCABE, BRADLEY, the
WILLIAMSON COUNTY District Attorney's Office, and the WCSD directly
participated in the criminal conspiracy to cover-up for the wrongdoing or criminal
activity of RYE, HOBBS, Melissa Hervey, WILLIAMSON COUNTY Attorney's Office,
and BROOKS on behalf of WILLIAMSON COUNTY.
42. Even though BROOKS was technically out of the case, she and her staff
deliberately defamed BARNES, controlled the case because they controlled the settings
8
BARNES has been involuntarily separated from her files and records, but when those records can be
accessed, BARNES has several incidents and patterns of illegal and unethical conduct by these two
prosecutors spanning yearsthey worked under the prior County Attorney, Eugene Taylor, and they have
continued in their same positions under the new County Attorney, who may be the next District Attorney,
replacing BRADLEY, who recently lost in the primaries to Jana Duty. RYE had been involved from the
very first false arrest of BARNES in 1997 and the ensuing civil litigation arising out of that false arrest and
39
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and the "visiting judge" and undermined the case. BROOKS ordered the WCSD deputies
who were assigned to courthouse security to follow and stay with BARNES and Arnold
Garza at all times. Ever since BROOKS instituted that protocol to harass, intimidate, and
oppress BARNES, she has not ever been allowed into the WILLIAMSON COUNTY
Courthouse without being escorted everywhere by a WCSD deputy. The WCSD deputies
have been ordered to stay with BARNES and watch and monitor her for the entire time
she is in the courthouse, in violation of United States Constitution, Amends. 1, 4, and 14,
as well as Texas Constitution, Art. I, § 3, 3a, 9, 13, 19, 27, and 29. That practice and
policy has continued unabated ever since the Arnold Garza case, and has substantially
impaired BARNES ability to practice law.
43. RYE unethically represented to the "visiting judge" at two separate pre-
trial hearings that there were no video or audio recordings to produce. This is the habit,
practice, and custom to withhold evidence that is clearly exculpatory (there were at least
twelve audio-video recordings and RYE finally produced 6 of them two days prior to trial
after BARNES served the subpoena duces tecum on the officers to appear and bring the
audio-video recording from their patrol car and on the dispatcher to bring his recording
had BARNES not subpoenaed them, RYE never would have produced them); RYE also
failed to disclose an exculpatory civilian witness who also had exculpatory photographs,
suborned perjury by the arresting officer, tampered with the witnesses by instructing the
officers to ignore the subpoenas BARNES served on them such that the main witnesses
were "out of town" during the trial and the "visiting judge" would not issue a writ of
attachment.
malicious prosecution, and was the prosecutor in the most recent Arnold Garza trial, out of which this
instant false arrest and malicious prosecution arose.
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 41 of 57
44. On May 3, 2010, two days prior to trial, while BARNES was back in the
WILLIAMSON COUNTY Attorney's office again attempting to get the discovery the
judge had ordered RYE to produce weeks before, RYE and an armed male escort used
their position with the County to gain the private security code to the front gate to
BARNES' residence. They intentionally and knowingly trespassed on BARNES' private
property with a loaded shotgun and firearm, despite bold "PRIVATE PROPERTY NO
TRESPASSiNG Violators Will Be Prosecuted" signs clearly and visibly displayed.
BARNES was not home, but they alarmed and frightened BARNES' minor child because
they were snooping around the house with a sidearm and loaded shotgun.
45. In keeping with the habit, practice, and custom of WCSD, WILLIAMSON
COUNTY, and its prosecutors, the deputies of WCSD will send out communications
defaming BARNES and contact other local law enforcement agencies and the law
enforcement officers at the schools where BARNES' children are in attendance to harass
and intimidate BARNES personally and through her children. This habit, custom,
pattern, and practice have been going on for over a decade and BARNES' children have
been harassed and traumatize repeatedly over the years. Just in connection with the
Arnold Garza case, BARNES' minor child was confronted by two men he did not know
at the house after school on Monday, May 3, 2010; these two men were at the house,
which is secluded and secure behind a locked security gate, and they were armed and
displaying the sidearm and the loaded shotgun; and they were in a civilian car, in civilian
clothes, and looking for his mother. On Friday, May 7, 2010, while the trial was in
progress, BARNES minor son was handcuffed at school in front of his friends and
teachers, and had to be rescued by the school's assistant principal. On Saturday, May 8,
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2010, BARNES' minor son and his minor friends were frightened and alarmed by three
marked WCSD units surrounding the home with weapons drawn and almost witnessed
his mother shot to deaththe first time he was forced to witness WCSD pull loaded
weapons on his mother was when he was only 7 years old and it severely traumatized
him: he has witnessed his mother being abused and subjected to false arrests and
violence at the hands of uniformed WCSD deputies ever since he was 2 years old. On
Monday, May 10, 2010, the same officer who had handcuffed him on Friday, May 7,
2010, and 4 other officers arrested BARNES' minor son at school in front of his friends
and teachers. These WILLIAMSON COUNTY law enforcement officers began stalking
him and filing frivolous criminal charges against him like "disruption of class," "curfew"
violation even though he does not reside in the city limits, and "possession of drug
paraphernalia" when they searched a car he was a passenger in and found something
down in one of the seats, and did not charge the driver or owner of the vehicle or any of
the other passengers, and would not even let him see what it was they found. They
stopped him and searched him and his vehicle constantly, made him miss lunch at school
one day claiming they saw "a joint" in his carwhen he went out and unlocked the car
door for them to search his car, it was a large grass bur stuck on his friend's backpack.
Yet, they did not go into the school and retract the defamatory statements made to school
personnel. They warned parents to keep their children away because he was "bad news."
They had circulated rumors that ATF was going to raid the BARNES' residencethis
was the rumor for weeks prior to RYE entering BARNES' property and the unwarranted
deadly force raid by WCSD on Saturday, May 8, 2010.
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46. The Arnold Garza case was tried from May 5-7, 2010, and very vocal
complaints were made throughout the trial by BARNES concerning RYE's criminal,
dishonest, and unethical activities, including his criminal trespass to BARNES' residence
on May 3, 2010. On May 8, 2010, BARNES home was surrounded by seven or eight
armed WCSD deputies, who were crouched down with their weapons drawn and pointed
at BARNES through her open windows. The deputies would not tell BARNES why they
were there or if they had a warrant.
47. This malicious and retaliatory armed home invasion was at approximately
7:30 or 7:40 p.m. on Saturday evening, May 8, 2010. BARNES was subjected to a
vicious unlawful restraint, search, and seizure, by WCSD, HERNANDEZ, RICHTER,
TRAVIS, NEWELL, HUGHEY, BOGAN, FOSTER,, WAGGONER, FOSTER, DE LA
VEGA, BR1NKMANN, andlor BARTZ because SCHEFFLER with utmost malice
directed them to BARNES' residence.
48. WCSD had no warrant. There was no probable cause to surround
BARNES' home and endanger BARNES and minor children, and this gross violation of
4th
the amendment and Art. I, § 9 of the Texas Constitution was done intentionally,
deliberately, knowingly, and with malice. BARNES was not allowed to leave and keep
her social plans for that evening, and had to call others for assistance.
49. BARNES' habitation is 1.7 miles from the front gate, which can only be
accessed with a private, secret, and confidential security code, and which is clearly posted
with a bold red "PRIVATE PROPERTY NO TRESPASSING Violators Will Be
Prosecuted" sign, and over .6 miles from when the pavement ends so it is clearly a private
road, and then through another secondary gate with fencing around the 30 acres of private
43
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residential area. There is no way they did not know that this was private property and
that they were engaging in criminal trespass without a warrant, probable cause, or exigent
circumstances.
50. Not only was the property clearly posted as "PRIVATE PROPERTY NO
TRESPASSiNG, Violators Will Be Prosecuted," it was clearly private property with a
fence and secondary gate, and these criminal actors knew that they were restricting
BARNES' movement without BARNES' consent so as to alarm BARNES and interfere
substantially with her liberty and this restraint and seizure was accomplished by force,
intimidation, and threatened use of deadly force.
51. BARNES repeatedly advised these criminal actors that if they did not
have a warrant that they must immediately leave the private property and they failed and
refused to do so and held BARNES hostage for 20 minutes before a downpour of rain
sent them to the three WCSD vehicles that they had blocking the driveway. BARNES
was forced to retreat upstairs to escape their deadly conduct and threat of being caught in
a hostile cross-fire, and called 911. No assistance ever came in response to the 911 call
and the dispatcher employed by WCSD failed and refused to disclose whether or not they
had a warrant and failed and refused to instruct the criminal actors to leave, or cease and
desist from this criminal and unconstitutional activity. These criminal actors knew they
would have BARNES trapped and surrounded and that no one would come to BARNES'
aid or assistance because the WCSD would be the only entity answering a 911 call from
BARNESthis has been the habitual pattern ever since 1997 when BARNES called 911
for assistance during the first false arrest by WCSD.
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52. The recordings and reports later proved that two of the deputies had
already planted the excuse to kill BARNES by falsely claiming that they heard BARNES
"pumping a shotgun" and if it had not been for the sniper looking at BARNES through an
upstairs bedroom window with his scope and verifying that she did not have a gun, these
deputies were prepared to open fire and to utilize a sniper to kill BARNES. They would
have employed the same media frenzy and blamed BARNES for her own death; and as is
the habit, practice, and custom because they could count on the STATESMAN, KXAN,
KVUE, KEYE, and all the local papers and television stations to simply re-broadcast
their deliberate and calculated deceptions and cover-up schemes.
53. No reasonable law enforcement officer could have reasonably believed
that this conduct was lawful, and would perforce know that this conduct was
unconstitutional in violation of United States Constitution, Amends. 4, 14 and Texas
Constitution Art. I, § 9, 19 and 29. These rights were well established in 2010 and for at
least 15 years prior thereto when Plaintiffs' same rights have been repeatedly violated.
These officers knew that they had no warrant and that no valid exception to the warrant
requirement applied. The content of the dubious suspicion (SCHEFFLER's malicious
misdirection to them to go to BARNES' residence)9 failed to match the extreme degree of
The audio recording recovered from one of the WCSD deputy's vehicle revealed how the WCSD deputies
ended up at BARNES' residence on May 8, 2010, instead of at 33 Indian Trail, Liberty Hill, as reported by
GITTEL. When the deputy radioed to dispatch that they could not locate 33 Indian Trail, (because they
were in Leander, not Liberty Hill), SCHEFFLER interrupted and asked if they were on Indian Trail; when
they answered in the affirmative, SCHEFFLER then directed them to BARNES' residenceyou go
through the neighborhood and when the road ends, cross the river, and "Carolyn Barnes claims to own all
that property over there." That was their only "probable cause" to go to BARNES' residence four hours
after the alleged "shots" and surround BARNES' residence with weapons drawn. When the tapes were
reviewed, there was a four hour delay from the time GITTEL claims to have heard the shots and the time
that the WCSD deputies arrived at BARNES' residence, and BARNES was not even home at the time that
GITTEL claims to have heard the shots that POPPA assumed were aimed at her. After SCHEFFLER' s
misdirection to BARNES, no one ever looked for or found the vagrant woman who came out of the pasture
near a condemned house at 33 Indian Trail in Liberty Hill, as initially reported by GITTEL. Once the
WILLIAMSON COUNTY prosecutor, MCDONALD, met with the WCSD deputies that Saturday, May 8,
- -
--I
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the intrusion and the serious risk of death posed by the unreasonable conduct of these
officers.
54. On Monday, May 10, 2010, BARNES filed a letter and probable cause
affidavit with the WILLIAMSON COUNTY District Attorney and WILLIAMSON
COUNTY Attorney, seeking an investigation into all of this criminal activity, and to file
criminal charges against RYE's criminal activities surrounding the Arnold Garza trial and
the malicious retaliation of WCSD surrounding the residence the previous Saturday.
55. On Tuesday, May 11, 2010, BRINKMANN called and informed
BARNES that he had a warrant for her arrest for Aggravated Assault on a Public Servant.
BRINKMANN refused to tell her any details. BRINKMANN has made outlandish and
theatrical accusations in the past against BARNES, and BARNES assumed at the time
that one of the deputies who stormed her home on Saturday had claimed she drew a
weapon or shot at them.
56. When BARNES arrived at the WCSD on May 11, 2010, she was met by
BRINKMANN and BARTZ (this deputy tried for years to bring criminal charges against
BARNES accusing her of neglect and abuse of her children and threatened to take
BARNES' children from her during the times of intense retaliation). BARTZ took
BARNES' keys from her and they led her to an interrogation room.
57. After a while, BR1NKMANN entered the room and started playing his
childish deceptive games and told BARNES this outlandish and incredible story that
BARNES was standing at her front door talking to a census worker and just suddenly
pulled out a gun and starting shooting at her point blank several times. BARNES
2010, and planned the malicious arrest and prosecution, no one care any longer about the truth, they had
their desired target, and it was just a matter of tampering with the records, the witness, and manipulating
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 47 of 57
immediately felt that she was being charged with a murder or that the victim was in the
hospital. BARNES knew that no census worker had ever been on her property, so it was
clearly a bogus charge from the inception, and it was clear that they knew it was
groundless and bogus. When BARNES asked if the victim were dead, they said no; and
when BARNES asked if the victim was in the hospital, BRINKMANN said "no, you
missed." This was not even credible and BARNES could not even imagine how they
concocted such an outlandish story. So, BARNES asked "what would be my motive?"
and BRINKMANN sarcastically said "you thought she looked like Dale Rye."°
BARNES knew right then that this was a malicious charge and retaliation because of
BARNES' complaint against RYE for trespassing on her property and gaining access to
the security code through the misuse of his position with WILLIAMSON COUNTY.
58. Once again, RYE commits a crime, and rather than investigating and
charging him, they fabricate new charges against BARNES. This has been the habit,
practice, and custom of WILLIAMSON COUNTY, the WCSD, and the WILLIAMSON
COUNTY prosecutors for 15 years." RYE and HOBBS have escaped any accountability
the "facts."
10
BARNES has no idea what GI1TEL looks like because WCSD and MCCABE, MCDONALD, and
BRADLEY have failed and refused to provide BARNES with a photo or any other information about her
accuser; however, if she looks like Dale Rye, she is one ugly woman. Dale Rye is bald on the top of his
head, with long, gray, wavy hair surrounding his large bald spot, wears glasses, and walks on his tip-toes.
There is no way anyone could look like Dale Rye. However, the WCSD and MCDONALD, MCCABE,
BRADLEY, HOBBS, and RYE concocted this outlandish motive that BARNES, due to her severe mental
disease, persecutory delusions, and paranoia suffered a complete break with reality and thought GITTEL
was RYE and tried to kill her thinking she was RYE! HOBBS participated in a media interview
immediately on May 11, 2010 and stated that BARNES was a "disturbed individual."
During the 1999 lawsuit against WCSD and deputies during the first false arrests, the attorney
representing WCSD sent an open fax to BARNES' employees advising them that she was crazy and when
BARNES' took his deposition to find the basis for the defamatory per se statements made to BARNES'
employees, he brought in the DSM-IV and diagnosed BARNES, but could not back up his mere self-
serving defamatory statements. This has been the standard operating procedure for these boys ever since
that time because they feel they do not have to respond when their corruption is exposed if they can simply
dismiss BARNES as crazy, with no credibility. Due to the ingrained "good ole boy" sexual prejudice, this
tactic is often effective due to a like-minded audience.
47
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or liability for years of abusive and criminal conduct.
59. BARNES has been retaliated against ever since the Vanessa Marie
Stalling case in 1995 where the deputies planted evidence and perjured themselves and
the prosecutor had to dismiss the case in the middle of the trial. BARNES' first bogus
false arrest occurred in 1997. BARNES has been arrested over 12 times during the past
15 years, especially after BARNES was unsuccessful in obtaining relief from the courts
and redress of her grievances, with a lawsuit against WILLIAMSON COUNTY, WCSD,
and deputies in 1999, and another filed in 2002.12
60. On May 11, 2010, at the point where the "interrogation" became childish
and nonsensical, BARNES informed BRINKMANN that when he wanted to get serious,
she would answer his questions, but she was not going to play games with him.
BRINKMANN and BARTZ then informed BARNES she was going to jail and that they
were already in the process of searching her home. BRINKMANN refused to provide
BARNES with a copy of the arrest warrant or search warrant. BARNES requested a
copy of the warrants and probable cause affidavit repeatedly for over a week, and her
attorney also began requesting copies, because they were never filed of record.
61. BARNES was then placed in jail on May, 11, 2010,13 and not allowed to
make any phone calls for five hours while deputies employed by WILLIAMSON
COUNTY and the WCSD ransacked her home, vehicles, storage buildings, travel trailers,
12
BARNES cannot access her files or information at this time in order to provide the details from the prior
false arrests, abuses, and lawsuits, however, BARNES incorporates all those arrests, charges, discovery in
those cases, and the prior litigation against WILLIAMSON COUNTY, WCSD, employees of
WILLIAMSON COUNTY, and deputies of WCSD, by reference the same as if set forth at length in order
to prove the habit, practice, custom, policy, and procedure of WILLIAMSON COUNTY, WCSD, and
certain prosecutors and certain judges, and to prove the intent, motive, and malice of these Defendants. See
Paragraphs 1-5 in the Judicial Notice part of Section II above.
13
It is over two years later and BARNES is still in forced captivity, stripped of all her legal rights, with no
recourse in violation of the open courts doctrine.
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and barn, taking what they wanted, without a warrant.
62. About two hours later, a deputy came and took BARNES back into the
interrogation room and demanded the combination to her private and business safe,
which would have significantly compromised attorney-client privilege with her clients
and invaded her right to privacy and right to be left alone. BARNES stated that she
would go with the deputy to open the safe for them, but that she had to be present when
they searched it. BARNES had nothing to hide, but had to protect the privacy and
privilege of her clients. WCSD refused to let BARNES go open the safe so they could
search it in her presence. Unlawfully and without a warrant, WCSD, HUGHEY,
BOGAN, FOSTER, WAGGONER, NEWELL, RICHTER, TRAVIS, HERNANDEZ,
BRINKMANN, BARTZ, DE LA VEGA, SCHEFFLER, HOBBS, RYE, BRADLEY,
MCDONALD, and MCCABE disrespectfully and forcefully removed the large safe from
BARNES' residence, scraping off the paint and destroying the tumbler in the process and
threw it in the back of an open truck bed. These WILLIAMSON COUNTY employees
knew they had no warrant to search the safe or to remove the safe from BARNES'
residence, and they also knew that BARNES had voluntarily agreed to open the safe for
them and allow them to search it, if it was done in her presence.
63. WILLIAMSON COUNTY, WCSD, HUGHEY, FOSTER, BOGAN,
WAGGONER, NEWELL, RICHTER, TRAVIS, HERNANDEZ, BRINKMANN,
BARTZ, DE LA VEGA, SCHEFFLER, HOBBS, RYE, BRADLEY, MCDONALD, and
MCCABE knew they had no warrant to search BARNES' vehicles, buildings, storage
units, barn, or travel trailers; however, they used the keys that BARTZ and
BRINKMANN took from BARNES at the jail to unlock and ransack her Jeep that was
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 50 of 57
parked in the WILLIAMSON COUNTY parking garage; then, took the keys and entered
her locked residence, all of her locked vehicles at the residence, her locked barn, locked
storage units, locked buildings, and locked travel trailers. On May 11, 2010, the law was
clearly established that deputies could not enter and search locked vehicles, buildings,
barns, storage units, or travel trailers without a warrant; nevertheless, in keeping with the
habit, practice, custom, and policy of WILLIAMSON COUNTY and the WCSD, they
proceeded with a conscious disregard and deliberate indifference to the constitutional
rights, safety, and welfare of others. During this unauthorized search, the said deputies
took whatever they wanted from these locked premises, and caused damages and
destruction to the premises and contents of the premises. This was an unreasonable
search and seizure and it was conducted with utmost malice and deprived BARNES of
her right to privacy and to be left alone.14 This search was conducted like a general
warrant for an invasive fishing expedition. Further, when they were through, they left
everything wide open and unlocked.
64. BARNES had a reasonable expectation of privacy in her locked
automobiles, her locked safe, her locked travel trailers, and her locked buildings on her
property. It was not reasonable for these officers to search these areas without a warrant
and to remove the safe from her home and other items of personal property from her
locked buildings and automobiles without a warrant while holding BARNES in jail, and
refusing to serve her with a copy of the arrest warrant or the search warrant or probable
14
Hours later after the search and ransacking was concluded, BRINKMANN came into the jail and told the
jailers that the search was done and that they could turn the phones back on. The WCSD had turned off the
phones to prevent BARNES from making any calls for over 5 hours while they conducted the search, so
that there would be no witnesses to their crimes. BARNES was not even allowed to call her minor son to
warn him and his friends, so that they would not be in harm's way with the property and residence
swarming with armed and hostile WCSD deputies and prosecutors.
50
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cause affidavit. Further, the alleged arrest and search warrants obtained after the search
were not based on probable cause, but on a false and fraudulent probable cause affidavit
(signed by BRINKMANN and issued with a view toward creating media sensationalism
rather than the truth); were not obtained from a neutral and detached magistrate; and did
not specifically describe the things to be looked for, but allowed a general fishing
expedition.
65. These officers could not have reasonably believed that their conduct was
consistent with clearly established constitutional rights and the case law interpreting
same. Mere suspicion, animosity or hostility, andlor maliciously coached accusations
cannot substitute for probable cause.
66. There was never any impartial intermediary that intervened to break the
chain of causationno neutral and detached magistrate, and no independent review by a
district attorney because they were involved with the deputies from the inception and
during the conspiratorial "investigation" phase where MCDONALD was physically
present at the Cedar Park Annex when the WCSD deputies met on Saturday, May 8,
2010, to plan this bad faith and malicious "investigation" and arrest, when they concocted
a "crazy" motive for media sensationalism, and malicious prosecution. The prosecutors
were involved from the inception of this bogus "investigation" which consisted of
tampering with the governmental records and reports to make it look like BARNES was
the perpetrator and the shots were fired at her residence, tampering with the witnesses,
and manipulating GITTEL to fabricate accusations and identify BARNES from an
intentionally suggestive photo array. No reasonable investigation would have resulted in
the creation and fabrication of a felony crime when none was initially reported, especially
51
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when it would require a criminal trespasser (GITTEL) to be absolved of her crime and to
prosecute the landowner (BARNES) contrary to the clear intent of the Castle Doctrine.
No reasonable deputy or prosecutor, acting in good faith, would ever conclude that
BARNES perpetrated this crime or that a crime was committed, based on the initial
report and actions of GITTEL and POPPA.'5
67. GITTEL claimed that she encountered the vagrant woman with a revolver
coming out of a pasture near a condenmed house at 33 Indian Trail in Liberty Hill around
3:45 p.m., and that she called POPPA from her cell phone at 4:10 p.m. to arranged to
meet with him at Spoons Restaurant. At 5:20 p.m., POPPA called 911 to report shots
being fired as a requirement on the printed from for his report to the Census Bureau, and
GITTEL was heard in the background with him when he made the call. (The WCSD
showed up at BARNES' residence with weapons drawn at 7:30 or 7:40 p.m.) Since
POPPA was at the Spoons Restaurant in Leander with GITTEL when he made the call
from his cell phone, the call went to the Leander Police Department, and was then
transferred to WCSD. The initial report was that GITTEL had gone to 33 Indian Trail,
Liberty Hill, Texas not 419 Indian Trail, Leander, Texas (BARNES' residence).
GITTEL initially reported that she heard gunshots as she left, she did not say that she was
15
It is a fact that GITI'EL had a cell phone on her because she called POPPA, according to her account, at
4:10 p.m. to arrange to meet with him at the Spoon's Restaurant. Despite discovery requests and a court
order directing MCCABE, MCDONALD, and BRADLEY to produce GITTEL' s cell phone records, the
Defendants continue to fail and refuse to produce these exculpatory records. If GITTEL had a cell phone
on her and she was really being shot at and in fear of her life, why did she never call 911? These same
malicious prosecutors also continue to fail and refuse to produce the print out from the Census Bureau and
the map showing the location where GITTEL was scheduled to be on May 8, 2010, despite a court order to
produce this evidence, especially when GITTEL and POPPA had these in their hands on May 8, 2010 when
they met with HERNANDEZ. No reasonable investigator would fail to make copies of these documents
and preserve this crucial evidence. These documents are clearly exculpatory because they will show that
GITTEL was never sent to BARNES' residence at 419 Indian Trail in Leander, and the map certainly did
not direct her to BARNES' property or residence. No reasonable "investigator," deputy, or prosecutor,
acting in good faith would fail to preserve this exculpatory evidence or refuse to produce it. This is the
52
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"shot at;" however, when the dispatcher asked POPPA if the shots were fired at GITTEL,
he responded "well, that's the assumption, if you hear shots, you assume they're fired at
you." So, speculation, conjecture, and surmise by POPPA, (who was not even there),
when mixed with hatred and malice, is massaged into an absolute beyond a reasonable
doubt fact to convict someone of a first degree felony and destroy their life and
reputation. No reasonable investigator, whether a deputy or prosecutor, would have acted
in this manner. Also, GITTEL initially stated that the house was a "condenmed" house
"with everything pulled outside like it was being remodeled" when BARNES home was
built new in 2004; and she stated that the woman, who may have been a "vagrant," came
"out of a pasture," not out of the house. After WCSD got involved, everything got so
tampered with, manipulated, and twisted, that the truth may never be known.
68. Around 7:30 or 7:40 p.m., four hours after the alleged incident, WCSD,
including HERNANDEZ, who had met with GITTEL and POPPA at the Spoons
Restaurant, RICHTER, TRAVIS, and others, were attempting to locate 33 Indian Trail in
Leander, not Liberty Hill as initially reported. When they could not locate 33 Indian
Trail in Leander, they called dispatch and asked for better directions from GITTEL; but,
before they could get a response, SCHEFFLER, as is his habit, practice, and custom,
intervened and directed the deputies to go to BARNES' residence. SCEFFLER asked if
they were on Indian Trail, and when they responded in the affirmative, SCHEFFLER
directed them to go through the neighborhood, over the river, and "Carolyn Barnes
claims to own all that property over there." That misdirection and the long-standing
habit, practice, custom, and policy of Williamson County and its law enforcement agencies and
prosecutors.
53
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malice was the only "probable cause"16 for the WCSD, HERNANDEZ, TRAVIS,
RICHTER, and other deputies, to travel a mile away and surround BARNES' residence
with their weapons drawn and pointed at BARNES. They had no warrant, there were no
exigent circumstances since the alleged incident had occurred four hours previously, and
they had no legitimate probable cause because neither the mere speculation, conjecture,
and surmise of POPPA nor the malice of these deputies and SCHEFFLER (who has been
involved for a decade with numerous incidents of harassment, trespass on BARNES'
private property, assaults, and bogus charges filed against BARNES) is not probable
cause.
69. While BARNES was held in jail for three days, WCSD could not find one
shred of evidence to corroborate this concocted artifice.17 Rather than admit the obvious,
WSCD, WILLIAMSON COUNTY, its Sheriff, WILSON, its deputies, HUGHEY, DE
LA VEGA, BRINKMANN, BARTZ, BOGAN, FOSTER, WAGGONER, NEWELL,
HERNANDEZ, TRAVIS, RICHTER, and its malicious prosecutors, MCCABE,
BRADLEY, MCDONALD, proceeded nevertheless with a conscious disregard and
deliberate indifference to the rights, safety, and welfare of Plaintiffs. They immediately
began their usual delay tactics, hiding the evidence and witnesses, and bulling,
threatening, and intimidating BARNES and her attorney. Initially, MCCABE,
BRADLEY, and MCDONALD absolutely refused to produce a copy of the warrants, just
as BRINKMANN, BARTZ, and WCSD had done. These prosecutors absolutely refused
16
Malice, speculation, and suspicion are not probable cause to resort to deadly force to invade a private
habitation and engage in criminal trespass.
17
At the time of these retaliatory charges, the State was well aware of the fact that Arnold Garza and
BARNES were material witnesses against HOBBS, RYE, BROOKS, and Melissa Hervey and others acting
in concert with them, including numerous law enforcement officers and two court appointed persons who
also violated the laws and Constitution of the United States and Texas.
54
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to produce the exculpatory evidence even after the court ordered them to do so.
MCCABE, BRADLEY, and MCDONALD refused to disclose the location of the safe or
allow BARNES access to the content of her safe until May 18, 2010, despite numerous
requests.'8 This was an unreasonable invasion of privacy and it had nothing to do with
the alleged offense. After ransacking, all of BARNES vehicles, travel trailers, barn,
buildings, storage units, and residence, they were not ever able to locate the revolver that
GITTEL described in great detail, or any handgun at all, no bullets, no shells, no shoe
prints on over .6 of a mile of dirt road to prove she was there, or any other evidence to
corroborate this malicious fabrication.
70. The probable cause affidavit presented by BRIINKJVIANN was not based
on personal knowledge and contained knowingly false and grossly misleading statements
of material fact. BRINKMANN's false probable cause affidavit left the reader with the
clear impression that GITTEL had gone to BARNES' residence to speak with her as part
of her duties for the Census Bureau (that proved not to be true) and that BARNES
pointed a handgun directly as GITTEL and fired five shots at her; when this was not what
was initially reported by GITTEL. GITTEL's initial report did not have any of the
necessary elements of a crime under the current law after the passage of the Castle
Doctrine. No reasonable law enforcement officer or investigator would have reasonably
believed that a felony crime had been committed, especially when MCDONALD, a
WILLIAMSON COUNTY assistant district attorney, was present during the planning
'8MCCABE BRADLEY, MCDONALD, WILSON, WCSD, HUGHEY, DE LA VEGA, BR1NKMANN,
BARTZ, BOGAN, FOSTER, WAGGONER, NEWELL, HERNANDEZ, TRAVIS, RICHTER, and other
deputies whose names will appear in the records that BARNES is unable to access, failed and refused to
retum BARNES' safe to her or allow her to see the contents. BARNES was forced to hire four movers to
move the large safe back to her home. The safe was significantly damaged, with paint scrapped off the
sides where they just slid it on the gravel and concrete, the tumble was twisted, bent, and unusable from
55
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and discussion stage of the "investigation" to render legal advice to the deputies. Even if
these events had occurred in the city limits rather than rural acreage, the allegation of
"shots being fired" would have been a misdemeanor crime. This alleged probable cause
affidavit amounted to making a false statement of material fact under oath, in violation of
Sections 37.02, 37.03, 32.46, 36.04, and 36.06 of the Texas Penal Code in order to shield
fellow law enforcement officers and public officials from prosecution in violation of
Section 38.05 Texas Penal Code.'9 This intentionally false and misleading probable
cause affidavit led to another media frenzy and defamation per se by KXAN, KVUE, and
KEYE. These media Defendants not only re-published the false and inflammatory
probable cause affidavit, they repeated the false and fraudulent probable cause affidavit
of TUMLINSON; they also, published highly prejudicial comments and information
maliciously fed to them by HOBBS in his efforts to cover-up the criminal activity he and
RYE engaged in and to deprive BARNES of her constitutional rights; and they falsely
stated defamatory per se statements claiming that BARNES' neighbors were afraid of her
because she had shot at them before, when this is absolutely not true, and this was all
published to deprive BARNES of due process, and fair trial, and presumption of
innocence. "ANONYMOUS" also repeatedly made false statements of material fact on
the Internet in order to deprive BARNES of a fair trial and the presumption of innocence.
71. As is the habit, practice, custom, and policy of WILLIAMSON COUNTY
and its malicious prosecutors, just as in the Vanessa Marie Stalling and Arnold Garza
where they forced their way into the safe. They also photographed the contents of the safe, but at all times
failed and refused to provide copies of the photographs to BARNES or her attorney.
19
This subterfuge had the intended and actual outcome of directing attention away from the prosecution of
the law enforcement personnel and RYE and HOBBS, for their criminal4th activity during the Arnold Garza
case, where felonies were committed, as well as gross violations of his amendment rights and liability
under42 U.S.C. § 1983.
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 57 of 57
cases, (and many in between including the David Morton, Dennis Jarowzewski, Randy
Gourley, Bobby Blackwood, Tres Stephenson, and Sarah Helton cases),2° they continued
to fabricate a case and maliciously prosecute an innocent person, rather than admit a
mistake and apologize. These Defendants also have the habit, practice, and custom of
over-charging a crime by falsely alleging a felony when no felony applies, in order to
fraudulently get merits and pay-raises for making felony arrests, and invoke the district
court's jurisdiction and maximize the harm, fine, and sentence. The District Court never
had legitimate jurisdiction over this matter or over BARNES because the facts reported
by the purported victim do not support a felony offense.
72. When BARNES was finally able to post the excessive bond to secure her
release$50,000 surety bail bondBARNES was not released; but was informed that
TRAVIS COUNTY had a hold on her and a warrant out for her arrest. BARNES had not
violated any term or condition of her release on bond from the bogus assault charges out
of TRAVIS COUNTYthe TUMLINSON caseand had appeared for every hearing.
There was absolutely no good faith reason for TRAVIS COUNTY to have a warrant out
for BARNES' arrest, and this was the result of the conspiracy between TCSD, WCSD,
HOBBS, RYE, BROOKS, BRADLEY, MCCABE, MCDONALD, BRINKMANN,
FOSTER, SWAIM, ESCAMILLA, MORGAN, SAENZ, GUERRERO, and various
deputies and county employees in Williamson and Travis Counties.
20
BARNES has many other names and events in her files and records, spanning at least 15 years, but it is
difficult to remember every name and incident without being able to access the records. There was a young
lady, I believe her name was Stacey, who Sulak had arrested prior to the first false arrest of BARNES for
"disorderly conduct" because he did not like her bumper sticker. Had WILLIAMSON COUNTY and
WCSD timely disciplined or re-trained or fired Sulak, then he would not still have been out on the streets
with the opportunity to pull BARNES over in 1997 and turn his ignorant "mistake" into another false
arrest, false imprisonment, and malicious prosecution. Had WILLIAMSON COUNTY and WCSD
properly trained, supervised, and disciplined their deputies, BARNES and her children would not have
57
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73. On May 14, 2010, WCSD transported BARNES to TCSD, where she was
held and forced to post another $50,000 surety bail bond. Two bogus charges and
$100,000 in bail when BARNES is a landowner, tax payer, been practicing law for over
25 years, and has minor children in schoolshe was absolutely no flight risk and neither
of these governmental "victims" had a scratch, mark, or bruise on themjust a mere
accusation with all evidence being exculpatory in nature. No reasonable deputy, sheriff,
or prosecutor would act in this manner. BARNES did not receive the full benefit of her
bargain under any one of these surety bail bond contracts due to the unilateral breach by
Defendants when they failed to follow the constitutions and laws of this State and Nation.
74. Upon BARNES release after posting the additional $50,000 bond in
TRAVIS COUNTY, which was excessive and violated equal protection under the law, it
was discovered that there was no motion to revoke the bond because the TRAVIS
COUNTY District Attorney had already decided not to prosecute the felony allegations
by TUML1NSON. The TRAVIS COUNTY District Attorney claimed to have nothing to
do with the revocation, warrant, and increase in bond amount. MORGAN, SAENZ, and
GUERRERO, who were employed with TRAVIS COUNTY Pretrial Services, did it on
their own, without any legal authoritynone of these three are lawyers or prosecutors.
MORGAN had communicated with "someone in WILLIAMSON COUNTY" who
advised them to revoke and increase the bond, so MORGAN had SAENZ use
GUERRERO's rubber stamp to sign the document to revoke and had the judge just sign
off on the warrant assuming that the report was accurate that BARNES had violated a
term or condition of the Pre-trial release, when she had not. The Judge denied signing the
endured 15 years of hell and retaliation. Sulak did not last long, but the malice his actions caused continues
unabated and unresolved.
58
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warrant because he was not ever made aware of the situation, and it is still unclear if the
purported signature is his or was obtained by the use of another rubber stamp. When
BARNES confronted the Judge, he denied knowledge of it; when BARNES confronted
GUERRERO, she denied knowledge of it, but did admit that it was her signature from
her rubber stamp. GUERRERO pulled the copy of the pretrial release contract after
admitting that she did not know what the terms and conditions were, even though she was
in charge of that office. After reading the terms and conditions of the pretrial release
contract, she admitted that BARNES had not violated any term or condition. However,
BARNES was still out another $5,000 in cash due to this "mistake" or "oversight" by
GUERRERO's office, and she stated she would look into it. BARNES never heard a
response, despite notices to TRAVIS COUNTY, TRAVIS COUNTY Attorney,
ESCAMILLA, and notices to the risk manager for TRAVIS COUNTY.
75. It was clear that WILLIAMSON COUNTY and TRAVIS COUNTY were
conspiring and coordinating their respective prosecutions and pretrial tactics. BARNES
filed her written complaints with TRAVIS COUNTY on May 27, 2010 and placed them
on notice of the claims for violation of 42 U.S.C. Sections 1983 and 1985.
76. BARNES had contacted the Attorney General's Office again with respect
to the corruption and crimes committed by WILLIAMSON COUNTY employees during
the Arnold Garza case, and had received a response instructing her to contact the FBI and
report this activity. On May 27, 2010,21 when BARNES arrived for the meeting, the FBI
office in Austin took BARNES' driver's license and ran it. Then, rather than meet with
BARNES, the agent called WILLIAMSON COUNTY, WCSD, and the prosecutors due
59
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to the "caution flag" that WILLIAMSON COUNTY and WCSD placed on BARNES'
driver's license years ago, claiming that she is a 10-96, dangerous, assaults cops, etc.
77. Just three hours after the visit to the FBI, MCCABE, BRADLEY,
MCDONALD, HOBBS, DE LA VEGA, WILSON, WCSD, and WILLIAMSON
COUNTY retaliated against BARNES by filing a motion for mental examination to
determine sanity, competency, and mental retardation and a motion to increase bond for
filing a "false police report" and claiming she was "re-offending." No reasonable deputy
or prosecutor would have believed that BARNES had filed a false police report or that
she was "re-offending" just because she went to the FBI to report their abuse of office
and malicious abuse of process. These motions were filed to discredit and punish
BARNES for communicating with the FBI agent.
78. There was no good faith or bona fide basis for these reckless and
intentionally defamatory accusations. WILLIAMSON COUNTY, BRADLEY,
MCCABE, and MCDONALD presented no sworn testimony by counsel for BARNES to
support these wild and groundless accusations.22 WILLIAMSON COUNTY, BRADLEY,
MCCABE, and MCDONALD could not show any "recent, severe mental illness, at least
moderate retardation, or truly bizarre acts by the defendant" as required by the standard
in this area. WILLIAMSON COUNTY could not present any evidence that would
support a bona fide doubt23 as to BARNES' competency or sanity simply for reporting
21
BARNES had also served her notice of claim against TRAVIS COUNTY on May 27, 2010 with respect
to the TUMLINSON assault. ESCAMILLA and SWAIM were representing TRAVIS COUNTY in
receiving the claim and in resisting the open records and FOIA requests from BARNES.
22
Further, counsel for BARNES had a sworn affidavit on file proving these malicious bad faith allegations
were not true.
23
The Court of Criminal Appeals has defined a "bona fide doubt" as "a real doubt in the judge's mind as to
the defendant's competency." Fuller v. State, 253 S.W.3d 220, 228 (Tex.Crim.App. 2008). The sum total
time of dealing with BRADLEY, MCCABE, MCDONALD, and SHAVER will be shown in the transcript
because BARNES had no other dealings with them off the record; so the jury will be able to judge for
Case 1:12-cv-00028-LY Document 18-1 Filed 07/16/12 Page 4 of 51
the criminal activity of these coconspirators. This form of retaliation would have an
impermissible chilling effect on the Constitutional rights of citizens to seek redress of
grievances and to report corruption by elected officials, law enforcement officers, and
other governmental employees.
79. BRADLEY, MCCABE, and MCDONALD went to CARNES, ex parte,
and immediately obtained a court order ordering Dr. Burrows to examine BARNES for
sanity, competency, and mental retardation, even though BARNES had not ever raised a
sanity defense or had any trouble whatsoever communicating with her attorney. Dr.
Burrows was the same forensic psychologist who had fraudulently found Arnold Garza
incompetent to stand trial before his family retained BARNES, and who then flip-flopped
and found him competent to escape cross-examination by BARNES. Both BARNES and
her attorney immediately filed a response and motion to set aside the ex parte order,
which was entered with malice by CARNES to further aid, assist, and abet the malicious
prosecution.
80. On June 4, 2010, RICHTER, SCHEFFLER, and 6 other WCSD deputies
trespassed onto BARNES' private property again even though both gates were locked
and clearly marked Private Property No Trespassing. When BARNES objected to them
coming thru her locked gate and trespassing, and she asked them to leave her property.
They looked her in the face and said "NO!" Then, they threatened to arrest BARNES if
she did not get in her house and stay there. SCHEFFLER even had a helicopter in the air
circling BARNES' residence real low with a bright spot light shining in her home and
over her property after midnight, and these Defendants would not allow BARNES'
themselves if BARNES' conduct in court supported a "real doubt in the judge's mind" about BARNES'
competency.
61
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friends into the property to assist her in this unwarranted search and seizure, without a
warrant. They were clearly intending to terrorize, intimidate, and threaten the occupants
of BARNES' residence and disturb the neighbors in order to further malign BARNES'
reputation.
81. On June 7, 2010, BARNES sent another written complaint to TRAVIS
COUNTY, including placing them on notice of the violations of 42 U.S.C. Sections 1983
and 1985.
82. On June 9, 2010, as BARNES was leaving the courtroom following a
hearing in the WILLIAMSON COUNTY District Court for the pending felony assault on
a public servant case, DE LA VEGA and 7 other WCSD deputies surrounded BARNES
in a circle with a video camera and audio recorder, and arrested her again without any
charges being on file. When MCCABE could not obtain the re-arrest of BARNES
pursuant to his bad faith motion to increase bond on June 9, 2010, he conspired with
HOBBS, BRADLEY, MCDONALD, and DE LA VEGA to arrest her any way on these
false charges. With no information or complaint on file,24 DE LA VEGA arrested
BARNES at the courthouse when she was there pursuant to a notice of hearing in the
pending felony case. The alleged statement of Deputy Martin could not in good faith
support a prosecution under Section 37.08 of the Texas Penal Code, in fact no charges
had been filed.25 Any such prosecution would be clear retaliation and malicious
24
In misdemeanor cases a capias may be issued only on the request of the prosecution after an
information and complain! have been filed charging the defrndant with on offense [C. C.P. Arts. 21.22,
23.04].
25
In misdemeanor cases a capias may be issued only on the request of the prosecution after an information
and complaint have been filed charging the defendant with an offense [C. C.P. Arts. 21.22, 23.04]. The
complaint supporting the information and capias must be made by a credible person and may be sworn
to
before the district or county attorney or magistrate [C.C.P. Art. 21.22]. This would represent another act of
false swearing with the intent to harm another and further violations of Sections 37.02, 37.03, 32.46, 36.04,
and 36.06 of the Texas Penal Code in order to shield fellow law enforcement officers and public officials
Case 1:12-cv-00028-LY Document 18-1 Filed 07/16/12 Page 6 of 51
vindictiveness by HOBBS and RYE, who just maliciously prosecuted Arnold Garza and
violated the laws and Constitution of the United States and Texas to do so. It will be
impossible to prove the elements of filing a false police report, the alleged offense for
which she was falsely arrested, and WILLIAMSON COUNTY, WCSD, HOBBS, and DE
LA VEGA have no good faith probable cause to bring these charges or to threaten these
charges. The statements made by Deputy Martin do not constitute a crime and there was
no investigation at all as he did not ever complete the report, and there were no
statements made by BARNES that were false because every statement was factual and
undisputed. That is the reason that WILLIAMSON COUNTY, WCSD, and HOBBS did
not have Deputy Martin execute the requisite sworn statement, but had DE LA VEGA,
who had no personal knowledge, engage in false swearing to secure a bad faith arrest
warrant. By prosecuting BARNES, or threatening to prosecute BARNES, and by
arresting BARNES on these false conclusions, WILLIAMSON COUNTY, WCSD,
BRADLEY, MCCABE, MCDONALD, RYE, HOBBS, BRINKMANN, FOSTER, DE
LA VEGA, BARTZ, BOGAN, HUGHEY, WAGGONER, HERNANDEZ, NEWELL,
RICHTER, TRAVIS, WILSON, BROOKS, ANDERSON and CARNES continued to
engage in other and further violations of Sections 2.01, 2.03, 37.02, 37.03, 32.46, 36.04,
36.06, 39.02, and 39.03 of the Texas Penal Code in order to shield fellow law
enforcement officers and public officials from prosecution in violation of Section 38.05
Texas Penal Code.
from prosecution in violation of Section 38.05 Texas Penal Code. A complaint in this form must state a
source of knowledge or facts on which the magistrate can make an independent probable cause
determination [see Green v. State, 615 S. W2d 700, 705-706 (Tex. Crim. App. 1980) warrant invalid when
based on complaint in form of affidavit by sheriff which merely alleged in conclusory terms that he had
reason to believe that defendant committed offense; Young v. State, 776 S. W2d 673, 677 (Tex. App.,
Amarillo 1989, no pet), which, at best, is what Deputy Martin states.
63
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83. BARNES was thrown back in jail, again, and had to post another bond.
Upon her release, she discovered that no charges had even been filedthe arrest warrant
was issued at the request only of deputy DE LA VEGA. Filing a police report is
constitutionally protected and the first amendment provides far reaching protection
against government censorship of free expression, and the fourteenth amendment extends
those protections to State action. WILLIAMSON COUNTY has no power to restrict
expression because of its message, ideas, subject matter, or content. Police Department
of the City of Chicago v. Mosley, 1972, 408 U.S. 92, 95-96, 92 S. Ct. 2286, 2289-90, 33
L. Ed. 2d 212, 216-17. To allow a prosecutor or deputy to retaliate against BARNES for
requesting that a report be filed to fulfill the requirement of the safe manufacturer to
repair the damages caused by these Defendants' violations of BARNES' constitutional
1st
rights would impermissibly restrict BARNES' amendment rights and right to redress
grievances. The filing of groundless criminal charges against citizens simply for
reporting the wrongdoing of these county employees would be unconstitutional and have
an impermissible chilling effect on the rights of citizens to redress of grievances and
document damages caused by constitutional violations. The values protected by the
Texas and United States Constitutions would not be served if the fear of retaliatory
prosecutions effectively muzzled citizens from reporting the criminal activity of County
employees causing damages and losses to the citizenry. The conduct retaliated against is
constitutionally protected.
84. The filing of charges and the threatened charges under Section 37.08
against BARNES as a basis to increase the bond and to request a mental exam is
retaliatory and done in bad faith. Under the facts of this case, constitutional conduct is
Case 1:12-cv-00028-LY Document 18-1 Filed 07/16/12 Page 8 of 51
being retaliated against and there is a long history of animosity or vindictiveness by the
WILLIAMSON COUNTY, WCSD, BRINKMANN, BARTZ, the Williamson County
Attorney's Office, HOBBS, and RYE towards BARNES. The timing of these charges is
also suspect, as is this prosecution coming on the heels of the Arnold Garza case. No
prosecutor acting in good faith would have conspired with DE LA VEGA to engage in a
false and malicious arrest by aggravated perjury. Clearly, retaliation is a major
motivating factor and played a prominent role in the decision to threaten prosecution
under Section 37.08 and in using that threat to file a motion to increase the bond in the
felony prosecution as well as the Motion to Examine Defendant for Competency and
Sanity.26 These filings are in bad faith and filed solely to continue to fuel the media
sensationalism caused by the defamatory and bad faith statements made by HOBBS and
FOSTER with a retaliatory and malicious motive and to improperly prejudice the
community against BARNES and prevent her from obtaining a fair trial, and impede,
disrupt, and obstruct BARNES' ability to represent Arnold Garza.
85. Due to the nature of the conspiracy that was made known to all
26
In an affidavit filed with the court, BARNES stated: "Affiant graduated magna cum laude from Texas
Lutheran University and the University of Texas School of Law. Affiant has practiced law in Texas for
over 25 years. Affiant is very familiar with the habit, practice, and custom of Dale Rye, Dee Hobbs, the
WILLIAMSON COUNTY Sheriff's Department, the WILLIAMSON COUNTY District Attorney's
Office, and the WILLIAMSON COUNTY Attorney's Office and it is their habit, practice, and custom to
cover-up illegal activity by law enforcement and other governmental employees, and to not timely or
meaningfully investigate or prosecute the same, and to retaliate against and illegally and unconstitutionally
punish those who expose this corruption and illegal activity. The latest threats and acts to maliciously
prosecute affiant for filing a false report simply because she reported this criminal activity to outside
agencies is beyond the pale. Just for filing a report complaining about the illegal and unconstitutional
activity of these governmental employees and elected officials, the WILLIAMSON COUNTY Attorney,
the WILLIAMSON COUNTY District Attorney's Office and the WILLIAMSON COUNTY Sheriff's
Department have conspired and agreed to file further malicious, groundless, and harassing charges for no
good faith reason other than to further harass, embarrass, and humiliate affiant with another false arrest,
jail, malicious prosecution, exorbitant bail/bond, and punitive fmes without due process or due course of
law, and they have filed a motion to increase the bond/bail which is already set high at $50,000, and a
motion for a psychological examination to determine mental retardation, competency, or sanity, when no
charges have even been filed. The malice by WILLIAMSON COUNTY is shown by the full interview that
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participants on Saturday, May 8, 2010, during the planning phase conducted at the Cedar
Park Annex with MCDONALD, HERNANDEZ, TRAVIS, RICHTER, BOGAN,
HUGHEY, NEWELL, SCHEFFLER, WAGGONER, BRINKMANN, BARTZ, and
others in attendance, the consequences that flowed from these malicious actions were
reasonably foreseeable. All conspirators agreed to falsify the police report and records
and suppress the clearly exculpatory evidence, and manipulate the alleged "victim."
HERNANDEZ falsified the report to state she was dispatched to BARNES' residence at
419 Indian Trail in Leander where shots were fired, rather than the truthshe was
dispatched to the Spoons Restaurant by H.E.B. Plus in Leander to take a report from
POPPA and GITTEL because they needed to file a police report in compliance with the
Census Bureau's policies and procedures. The truth is that neither GITTEL nor POPPA
ever said that shots were fired at 419 Indian Trail in Leander and they never said that the
Census Bureau had sent them to that address or that the Census Bureau had sent them out
to talk to or meet with BARNES.
86. BR1NKMANN executed a false probable cause affidavit swearing under
oath that BARNES had committed a first degree felony; DE LA VEGA executed a false
probable cause affidavit swearing under oath that BARNES had committed a
misdemeanor filing a false police report; and MCCABE falsely swore under oath that
BARNES was re-offending in order to revoke her bond and hold her in jail without bond.
All three of these WIlLIAMSON COUNTY employees acted with malice, to inflict
pretrial punishment, and in concert pursuant to a conspiracy to harm, injure, and damage
Dee Hobbs gave to the press as an agent, representative, and employee of the WILLIAMSON COUNTY
Attorney's Office and WILLIAMSON COUNTY, Texas."
Case 1:12-cv-00028-LY Document 18-1 Filed 07/16/12 Page 10 of 51
87. By June 15, 2010,27 BARNES and her attorney had filed her response to
the motion for mental examination to determine sanity, competence, and mental
retardation, along with proof from a forensic psychiatrist and forensic psychologist that
BARNES was more than competent to stand trial; and the prosecutor's own routine
forensic psychiatrist, Dr. Coons, who makes over $50,000 a year rendering opinions to
support the WILLIAMSON COUNTY prosecutors, also agreed that BARNES was
competent to stand trial. The prosecution's case was not materializing as they had
plannedthe motive concocted by HOBBS, RYE, BRINKMANN, MCDONALD,
BRADLEY, MCCABE, and WCSD from the inception of this bad faith prosecution was
that BARNES was so out of touch with reality and so paranoid and delusional that she
shot at GITTEL thinking she looked like Dale RYE. During the "interrogation" of
BARNES on May 11, 2010, BRINKMANN stated that as the motive, reinforced by
HOBBS' statements to the media that BARNES was "a disturbed individual." The
WILLIAMSON COUNTY and TRAVIS COUNTY Defendants, acting in concert and
pursuant to a malicious criminal conspiracy, planned to completely discredit BARNES
and destroy her reputation and business, then quickly send her away to a mental hospital
for the criminally insane so they would never have to prove their knowingly false
allegations. That was the reason for their extensive and repeated efforts to hold
BARNES in jail without bond so she could not prepare her defense, conduct discovery,
27
On June 15, 2010, BARNES also filed Notice of her election under Texas Constitution Art. I, § 10 to
appear by herself as counsel and through counsel of her choice in the pending felony case. The prosecutors
did not ever object to or oppose this notice. BARNES continued as counsel on the case until she was
unconstitutionally removed without due process by SHAVER on February 28, 2011, immediately before
being thrown into pretrial captivity, without any semblance of due processwhere BARNES remains,
indefinitely. fronically, BARNES had sought and obtained this right to dual representation under Texas
Constitution, Art. I, § 10 for Arnold Garza. It is a denial of equal protection under the law for one court in
WILLIAMSON COUNTY to allow Arnold Garza to enjoy this Constitutionally protected right to dual
representation, while another court in WILLIAMSON COUNTY denies BARNES the equal right.
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run her practice, earn any income, make her house payment, pay her taxes, pay her bills,
support her children, or continue paying for experts and her lawyer. That was the reason
behind the multiple arrests and multiple, increasing bonds and the reason for filing the
motion to determine sanity, mental retardation, and competency. As pointed out in
BARNES' response, only the defense can raise sanity as a defense, these malicious
prosecutors cannot allege insanity as a motive. No reasonable deputy, investigator, or
prosecutor acting in good faith would file and bring a prosecution where the motive
entails an allegation that the accused was insane at the time of the offense.
88. MCCABE, MCDONALD, BRADLEY, WCSD, and DE LA VEGA had
the bogus motion to increase bond set for hearing on June 28, 2010. BARNES' son was
hit by a speeding car while crossing the street in New York on June 24, 2010, and was in
serious condition in the hospital awaiting surgery. However, CARNES, MCCABE,
MCDONALD, BRADLEY, WCSD, and DE LA VEGA refused to reschedule the hearing
date so that BARNES could travel to be with her son and BARNES was not even allowed
to be there while he was in serious pain awaiting the surgery, or for the surgery, or the
immediate recovery period due to the malice of WILLIAMSON COUNTY, its
prosecutors, CARNES, and WCSD.
89. On June 28, 2010, BARNES was forced through a hearing on MCCABE's
bad faith motion to increase the bond and DE LA VEGA's false probable cause affidavit
and false arrest. These Defendants were not able to prove any of the elements of filing a
false police report or any other crime, and could support no grounds for revoking the
bond or increasing the bond. The malice, hatred, and bad faith was palpable in the
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courtroom,28 as the malicious prosecutors struggled to have BARNES thrown back in jail
with a bond so high she could not get out. However, they simply could not prove their
allegations, as usual.
90. CARNES was equally upset because he was ready and willing to throw
BARNES back in jail. CARNES has been extremely hostile and filled with animosity
towards BARNES for years, and has recused himself from every case BARNES has been
involved in due to his ire for BARNES, except for a bad faith tax suit filed by
WILLIAMSON COUNTY where he entered a default judgment against BARNES when
BARNES had filed an answer and owed no taxes. CARNES refused to recuse himself in
the felony case despite his long history of open hostility and animosity towards
BARNES.29 CARNES was refusing to hear any of BARNES' motions and stated he
would only hear the prosecutor's motions pre-indictment. BARNES was entitled to an
examining trial or full Franks hearing prior to indictment; however, despite the formal
wriften request, CARNES failed and refused to grant her request because everyone knew
that there would be no evidence to support the charge or probable cause if BARNES had
an examining trial and could confront the witness and lack of evidence against her.3°
28
The prosecutor had his half of the courtroom filled with prosecutors, deputies, and spectators to watch his
show. They were so certain they could get BARNES held in jail and prevent her from conducting
discovery and proving that they fabricated these charges with malice. Their efforts continued unabated and
the prosecutors filed three additional bad faith motions to revoke the bond and increase the bond.
29
Interestingly, the first time BARNES sued WTLLIAMSON COUNTY for their shocking and outrageous
habit, practice, custom, policy, and procedure of intentionally, knowingly, and deliberately violating the
constitutional and civil rights of the citizens of this country, CARNES recused himself from hearing that
case; however, after being aware of an additional decade of further harassment, retaliation, and wrong-
doing by WILLIAMSON COUNTY against BARNES, CARNES does not recuse himself over a decade
later in this case. CARNES needed to impanel a Grand Jury with Linda McDaniel as the foreman and most
likely other political allies to ensure that BARNES would be indicted before he recused.
30
BARNES was forever deprived of this due process, due course of law, and fundamentally essential right
to expose the aggravated perjury in this PC affidavit executed by BRINKMANN and to have it suppressed
and set aside under the case of Franks v. Delaware, 438 U.S. 154 (1978). Had BARNES been afforded
equal protection under the law, due process, and due course of law, she could have shown the falsity of the
statements contained in this PC Affidavit and had it set aside because the statements in the affidavit are not
Case 1:12-cv-00028-LY Document 18-1 Filed 07/16/12 Page 13 of 51
91. CARNES had no choice but to deny the motion to increase the bond
because the prosecutors and WCSD deputies failed to meet their burden of proof or prove
that BARNES had "re-offended" by filing a false police report. However, CARNES
simply could not resist the malicious energy that the hearing aroused due to the
frustration of the bad faith actors to prove their allegations, and he unilaterally without
any notice, due process, or opportunity to be heard ordered that BARNES be placed on
an ankle monitor and that a 10 p.m. to 5 a.m. curfew be imposed on her as if she was a
teenager who was drinking and doing drugs.3' This was solely to harass, demean, and
punish BARNES for not being guilty of all these bogus charges and for, once again,
embarrassing the bad faith actors, his buddies and political allies. There was no
truthful, but are deliberately and intentionally false and misleading. BARNES was entitled to challenge the
lack of truthfulness and prevent the false and fraudulent PC affidavit from being presented to a hand-picked
grand jury that did not investigate. Aggravated perjury cannot support a warrant or an indictment. Both
the alleged warrant and the indictment were based on aggravated perjury and the untruthful statements of
fact contained in this PC Affidavit made by BRINKMANN pursuant to a criminal conspiracy.
BRJNKMANN knew at the time he made the affidavit that the statements contained therein were not
truthful or accurate. Upon a showing of the lack of truthfulness, BARNES was entitled to a motion to
strike the PC affidavit and set it aside, along with anything predicated thereon, including any warrant or
indictment in this cause. See Art. 38.23 CCP stating in part that "no evidence obtained by an officer or
other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America, shall be admitted in evidence against the accused on
the trial of any criminal case." The statements contained in the PC affidavit are not truthful and everything
obtained as a result thereof, including the warrants and indictment, should be quashed, set aside, and
stricken from the record. Further, upon a showing that the alleged magistrate involved was not neutral and
detached, the warrant and anything predicated thereon, including the indictment should be quashed and set
aside. No reasonable deputy acting in good faith would have believed that these alleged magistrates were
neutral or detached. These deputies know who to go to for bad faith warrant signing. WILLIAMSON
COUNTY and WCSD, acting by and through its deputies, named prosecutors, and magistrates clearly and
4th
knowingly violated BARNES and 14th amendment rights, as well as her rights secured by the Texas
Constitution Art. I, Sections 9 and 19. These Defendants violated BARNES' rights guaranteed by the
United States Constitution
5th, 6th
and 14th amendments and Texas Constitution Art. I, Sections 10 and 19
by obstructing BARNES' access to the evidence necessary to prove and support the grounds to challenge
the truthfulness in the PC Affidavit and the lack of neutrality and detachment of the alleged magistrates.
This court should order an full investigation into this criminal conspiracy and order WILLIAMSON
COUNTY to show cause why these criminal offenders are not being charged and prosecuted for their
crimes.
31
If the offense allegedly occurred at BARNES' rural residence where she is alleged to have runoff a
criminal trespasser, it is difficult to comprehend the reasoning behind the 10 pm to 5 am curfew and
electronic monitoring to enforce it because confmement to the rural residence would place more trespassers
in harm's way. That would be like confming someone arrested for DWI to a bar between 10 pm and 5 am.
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legitimate governmental interest in breaching the terms and conditions of the $50,000
surety bail bond contract or to further seize and restrain BARNES, and this malicious and
punitive action violated due process and equal protection under the law.
92. BARNES immediately objected to the ankle monitor and curfew because
it was not warranted, not supported by the evidence or the intent of the law, a malicious
abuse of process, and it was unconstitutional to unilaterally modify and breach the terms
and conditions of a surety bail bond contract when BARNES had fuliy performed her end
of the bargain and had substantially changed her position in reliance upon the $50,000
contract. However, BARNES was ordered to shut up by CARNES and he refused to let
her speak.32
93. Immediately after the hearing when BARNES was focused on quickly
getting to New York as her son was already in surgery, a WCSD deputy, RUPPART,
came up behind BARNES in the hallway of the WILLIAMSON COUNTY Courthouse
and bumped into her from behind. Then, he quickly scooted around her just like a boxer
in the ring, and when BARNES ignored him and started to walk around him, he delivered
two sharp blows to her chest with the heel of his open hand with such force that it
knocked BARNES back and he shouted "you're not going anywhere!" Then, he spoke
into his communicator and announced that BARNES was under arrest for assaulting a
public servant. These malicious Defendants were determined not to let BARNES go to
her seriously injured son. Fortunately, the supervisor of courthouse security came
immediately and RUPPART had not had time to put together a coherent story, and when
he reported that he came up behind BARNES and she bumped him, it was not logical or
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believable. The supervisor asked "you're arresting her because she bumped you?" Then,
the supervisor had another deputy detain BARNES in a nearby courtroom so the
supervisor could talk to RUPPART and figure out how BARNES bumped him when he
was following BARNES. After quite awhile, the supervisor came and told BARNES she
was free to go and she could file charges, if she wanted, on the assault because she had
red marks that later turned to bruises on her chest from the excessive force blows.
94. Immediately, WILLIAMSON COUNTY and TRAVIS COUNTY
conspired to force BARNES back for a hearing in TRAVIS COUNTY and refused to
reset the hearing so that she could stay with her son. BARNES was forced back against
her will to attend a bad faith hearing on July 7, 2010.
95. On July 8, 2010, BARNES was required to be back in the same TRAVIS
COUNTY court for another hearing. With utmost malice and vindictiveness, knowing
BARNES was already out on a surety bond in the amount of $50,000.00, TRAVIS
COUNTY, TCSD, SWAIM and ESCAMILLA conspired to harm, injure, and damage
BARNES further and did then and there retaliate further against Barnes by engaging in
acts of criminal retaliation and official oppression. BARNES was performing her duties
as a public servant in the TRAVIS COUNTY Courthouse on July 8, 2010, when three
uniformed and armed TCSD deputies, crossed the bar, and violently arrested BARNES as
she was conducting her livelihood as an officer of the court,33 and they disrupted,
impeded, interfered, with, and obstructed BARNES in the performance of her duties as a
32
BARNES has several witnesses to the overt animosity, hatred, ill will, and abusive tone of voice
exhibited by CARNES, MCCABE, BRADLEY, MCDONALD, SHAVER, SCHREIBER, and SWAIM
throughout these proceedings.
These Defendants acted with malice, violated the attorney-client privilege, and made a huge theatrical
show to an audience the TCSD, SWAIM, HAMILTON, ESCAMILLA, and TRAVIS COUNTY had
assembled to watch the show. There was no legitimate, reasonable, or good faith reason for arresting
BARNES in this manner.
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public servant, and did then and there, physically interrupt, disrupt, and interfere with
attorney-client privileged communications and compromised and invaded attorney-client
information, and did then and there commit an aggravated assault, aggravated
kidnapping, false arrest, and false imprisonment pursuant to a criminal conspiracy and
organized criminal activity designed to tortiously and maliciously interfere with and
deprive BARNES of well-established constitutional rights. BARNES was arrested on a
completely bogus, groundless, and bad faith charge of "interference with the duties of a
public servant"34 arising out of TUMLINSON's assault six months earlierBARNES
This is a favorite charge of bad faith deputies and prosecutors because the statute is so ambiguous, vague,
indefinite, and overly broad that you can literally convict anyone under the statute for anything. All you
need is a jury to think, with perfect 20-20 hindsight that they would not have done that because the lowest
culpability applies"criminal negligence." The legislature literally abdicated their role to defme what is
criminal to the majority feeling of six jurors so that no one has fair advanced notice of what actions would
be considered criminal. Obviously, in this case, it took over six months to realize the alleged "crime." In
the Arnold Garza case, he was charged with this nefarious charge after they had arrested him in his own
home without a warrant or probable cause for "failure to ID" and then realized at the jail that he had given
the correct "ID." BARNES represented a case where a 72-year-old lady was arrested on this charge simply
for informing an officer of the law he was violating. In the only case these malicious Defendants have ever
convicted BARNES on is this chargein that case the alleged motive for the traffic stop was speeding,
however, two law enforcement officers (BARNES had a lawsuit pending against one these officers, a
WCSD deputy, arising out of a previous assault and false arrest) placed BARNES and her minor child in a
felony stop and each one had their loaded weapons drawn and pointed in at BARNES on both sides of the
vehicle just to terrorize the child). They ended up violently arresting BARNES and her minor child for "a
felony evading arrest and refusal to sign the traffic citation." The video proved that BARNES had not
evaded arrest and they never wrote a ticket or presented it for signature as required by the law. There were
eight deputies out there placing spikes under the tires and rocking the vehicle back and forth to flatten the
back tires to make it look like BARNES had evaded arrest and they confiscated and destroyed BARNES
audio-recording of the incident where BARNES repeatedly told them that they were required to give her a
ticket and promptly release her if the charge was speeding. The video recording proved that BARNES had
repeatedly told them to just give her the ticket and let her go because she had to pick up her other minor son
from school. The youngest minor child was taken to the jail and interrogated on the way there and at the
jail, and not released until after midnight on a school night and the other minor child was left stranded at
school until after midnight when the youngest one made sure he was picked up. Every time these malicious
Defendants arrest BARNES, she is never able to call and make arrangements for her children or check on
them in any maimer. When they were not able to prove that they had written a ticket or that BARNES had
evaded arrest; the malicious prosecutors (HOBBS and RYE) charged her with "interference with the duties
of a public servant." When BARNES proved on a motion to dismiss that their duty was to write the
speeding ticket and promptly release BARNES upon her signing of the ticket and that BARNES had not
done anything at all to interfere with their clear duty under the law; the hand-picked "visiting judge" who
did not even have an oath of office on file as required, allowed RYE and HOBBS to amend their pleadings
on the day of trial over BARNES' objections and change it to "interference with the duty of the public
servant" to "maintain the peace." They were the ones who resorted to deadly violence and refused to write
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had just posted a $50,000 surety bail bond on May 14, 2010 on this incident. There was
no good faith reason to file these charges or to arrest BARNES for a third time over this
TUML1NSON incident. No reasonable law enforcement officer, county prosecutor, or
Judge could have believed that they were acting lawfully and legally when they knew that
they had already acted illegally and unconstitutionally in forcing BARNES to pay an
additional $5,000 fine to secure her release from jail on May 14, 2010 as a result of the
aggravated kidnapping, aggravated assault, and false arrest and imprisonment committed
by TUMLINSON, TCSD, and TRAVIS COUNTY.
96. There can be no good faith argument for the unconstitutional actions of
TRAVIS COUNTY, TCSD, SWAIM, HAMILTON, and ESCAMILLA in assaulting,
kidnapping, and imprisoning BARNES three times and extracting three separate bails,
penalties, and fines, together with the repetitive and compounding defamation per se in
the media. ESCAMILLA, SWAIM, TCSD, HAMILTON, and TRAVIS COUNTY acted
with malice because BARNES had already served notice of her claims against them and
sent the freedom of information and open records requests to them and ESCAMILLA and
SWAIM were blocking discovery through the Attorney General.35
the ticket and let BARNES go, but BARNES was convicted for breaching the peace and interfering with
their duty to "maintain the peace."
These actions were undertaken with extreme malice by SWAIM, ESCAMILLA, and MORGAN, while
they were at the same time and continuously over the previous six months obstructing BARNES' access to
information under the Texas Open Records Act and Freedom of Information Act. ESCAMILLA has been
at the forefront of obstructing access by writing letters to the Texas Attorney General to prevent BARNES
from obtaining access to critical evidence to prove BARNES is not guilty and that TUMLINSON and
several other county employees are is guilty of felony offenses. MORGAN was instrumental in the illegal
and unconstitutional revocation of BARNES' first bond and the illegal and unconstitutional second false
arrest and second false imprisomnent of BARNES, and in the illegal and unconstitutional increase in bond
to $50,000.00 without any semblance of due process or due course of law and without following the proper
and legal statutory procedure in violation of the contract through Pre-trial Services where MORGAN is
employed. All of the actions undertaken by SWAIM, MORGAN, and ESCAMILLA are in retaliation
against BARNES for her services as a public servant in the representation of Carol Ann Davis, whom they
were prosecuting as a favor for Karen Matlock, an assistant attorney general who has used her position as
assistant attorney general to advance private interests, influence private litigation and non-governmental
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97. BARNES was rearrested in court this third time by TRAVIS COUNTY,
TCSD, SWAIM, HAMILTON, and ESCAMILLA, pursuant to a vague, indefinite,
ambiguous, and overly broad statuteTex. Penal Code Ann. § 38.15 (Vernon 2003).
The act requirement of the statute is vague, uncertain, indefinite, ambiguous, and overly
broad because it includes "interrupting, impeding, disrupting, or otherwise interfering
with the performance of official duties" and, when read in context, was clearly intended
to apply in emergency type situations, rather than for every routine, everyday occasion or
encounter with the public. Such a broad interpretation and application of this criminal
statute would quickly reduce a free people to an oppressed nation in a police state; and
individual freedom would dangle precariously on the whim of each law enforcement
officer because the prosecutors and court could mesh any activity to fit within the
criminal statute ex post facto. This criminal statute violates the fundamental principle
that a criminal statute that is so vague that it does not give reasonable notice of what it
prohibits violates due process, especially when the culpability required is just criminal
negligence. Further, if the language is so overly broad, indefinite, vague, or ambiguous,
the penal code section is unconstitutional under the separation of powers provision of the
matters in the courts dealing with false prosecutions of Carol Ann Davis and in protecting the unlawful
activity of employees of the Texas Department of Public Service. Carol Ann Davis was married to a DPS
officer. It is believed that Karen Matlock's husband is employed by DPS and that she routinely represents
DPS officers when they are being sued. These opinions were gained by a review of the documents
involving the lengthy litigation between TRAVIS COUNTY, Karen Matlock, and Carol Ann Davis over
many years, and documents concerning the death of Lindy Harrison Honnerkamp, the ex-wife of Warren
Tom Harrison. BARNES has been named as a witness in that pending case. BARNES should not be
retaliated against for fulfilling her duties as a public servant and witness against these Defendants in the
malicious prosecution of Carol Ann Davis by SWAIM, MORGAN, and ESCAMILLA for political reasons.
This is not the first malicious prosecution of Carol Ann Davis by Travis County. SWAIM, MORGAN, and
ESCAMILLA promoted their own personal interests in advancing their own personal agendas in taking
these illegal, unconstitutional, and vindictive actions against BARNES, due to her research and
participation in the Carol Ann Davis case. Their hatred towards Carol Ann Davis has clouded their
judgment, and they do not want her to have fair representation. SWAIM is the only "Special Prosecutor" in
ESCAMILLA's office and he handles cases when the prosecution is politically motivated.
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Texas Constitution36 because it involves the unconstitutional delegation of legislative
power to the judiciary to determine what activity is criminal, after the fact, like a
springing ex post facto lawin this case, the unconstitutional delegation of legislative
power is to six jurors. Tex. Penal Code Ann. § 38.15, as written, is unconstitutionally
vague because it criminalizes unknown, uncertain, and indefinite conduct on its face; and
has led to numerous selective or retaliatory prosecutions.
98. TRAVIS COUNTY, TCSD, HAMILTON, SWAIM, ESCAMILLA,
TUML1INSON, KLEKAR, LERMA, COTTON, and others involved in this malicious
prosecution now allege that BARNES did not commit a first degree felony as sworn
under oath by TUMLINSON, or even a third degree felonythey now allege that
BARNES "interrupted, impeded, disrupted, or otherwise interfered with the performance
of' some uncertain, indefinite, vague, or ambiguous official duty that TUMLTNSON
hadperhaps, the duty to patrol the courthouse looking for people on cell phones as if
that were a violation of some rule or law. That is a far cry from the media sensationalism
created by the deliberate and intentional misstatement of material facts by TUMLINSON,
HAMILTON, KLEKAR, LERMA, COTTON, TRAVIS COUNTY and others
responsible for the malicious, defamatory per se press release. Even if convicted of a
violation of this vague, ambiguous criminal statuteTexas Penal Code Section 38.15
BARNES has already been punished far more than the range of punishment set forth in
Texas Penal Code Section 12.22, which sets the range of punishment for a Class B
misdemeanor.37 BARNES has been forced to pay over $5,040.00 in excessive fines and
Article II, Section 1 of the Texas Constitution provides for three distinct and separate branches of
government and Art. III, § 30, 43 vest the power to pass laws and to revise the criminal law of the State in
the legislature.
§ 12.22. CLASS B MISDEMEANOR. An individual adjudged guilty of a Class B misdemeanor shall be
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penalties, incurred two separate hospital bills, and suffered the loss of her blackberry
phone, eyeglass repair tool that was a gift from her son, and a diamond bracelet worth in
excess of $7,000.00, been confined in jail for five days just on the three false arrests, now
being held indefinitely (jursuant to the malicious conspiracy between SWAIM,
ESCAMILLA, HAMILTON, WILSON, BRADLEY, MCCABE, MCDONALD,
HOBBS, RYE, WCSD, TCSD, WILLIAMSON COUNTY and TRAVIS COUNTY), and
had her reputation repeatedly denigrated in the media due to the aggravated perjury
suborned, promoted, and published by TRAVIS COUNTY, TCSD, WILLIAMSON
COUNTY, WCSD, and their various policy makers, elected officials, employees, agents,
attorneys, deputies, and representatives.
99. Further, the criminal statute, Texas Penal Code Section 38.15, provides
that "(d) It is a defense to prosecution under this section that the interruption, disruption,
impediment, or interference alleged consisted of speech only." When BARNES
attempted to call 911 on her cell phone as she left the courthouse before TUML1NSON
ran up from behind and slapped the phone out of her right hand sending it crashing to the
floorBARNES was only talking. This is a clear defense to prosecution in this case and
it would be a further and gross violation of BARNES 1st
and 14th amendment rights to be
criminally prosecuted for speech only, as well as violation of Texas Constitution Art. I,
Sections 8, 9, 19, and 29. BARNES cannot be prosecuted for anything she said or the
fact that she was making a call to report the bad behavior of TUMLINSON. BARNES
cannot find any other case where a defendant has had such an excessive fine and penalty
punished by:
(1) a fine not to exceed $2,000;
(2) confinement in jail for a term not to exceed 180 days; or
(3) both such fine and confmement.
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imposed when this statute is alleged to have been violated. BARNES is entitled to equal
protection under the law and to impose a further fine or penalty on BARNES would
violate her right to due process and equal protection under the law, as well as the double
jeopardy and due course of law protections addressed above.
100. In all of these malicious prosecutions, BARNES immediately requested a
speedy trial. BARNES has a right to a speedy trial under the Texas Constitution Art. I,
Sections 10, 19, and 29, and the Sixth and Fourteenth Amendments of the United States
Constitution, which require that the trial be held within a reasonable time after the arrest.
Neither TRAVIS COUNTY nor WILLIAMSON COUNTY have any interest in granting
BARNES her request for a speedy trial because these are malicious prosecutions and they
want to maximize the damage, injury, and damage to her reputation, law practice, ability
to earn a livelihood and care for her children, and her real and personal property.
TRAVIS COUNTY waited over six (6) months after three false arrests to file these
misdemeanor charges, during this over six month period of delay, TRAVIS COUNTY
destroyed the exculpatory evidencethe audio-video recording of the incident that was
captured on the courthouse security cameras,38and repeatedly imposed excessive fines,
penalties, and unconstitutional punishment on BARNES. WILLIAMSON COUNTY
waited four months to indict BARNES because CARNES, BRADLEY, MCCABE, and
MCDONALD had to impanel their own special grand jury, rather than utilize the one in
place at the time. Then, for over two years, these Defendants have failed and refused to
38
ESCAMILLA and SWAIM resisted release of this audio-video recording from the inception and
obstructed the discovery of this video tape long before they decided to file these malicious and vindictive
charges against BARNES. BARNES was only successful in getting Judge Flowers to enter an order
preventing the destruction or alteration of the recording; however, it did not prevent ESCAMILLA and
SWAIM from later fraudulently claiming it never existed in order to continue to obstruct BARNES' access
to the only tangible evidence of the truth.
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produce the exculpatory evidence, and have fraudulently and maliciously indefinitely
confined BARNES pretrial without due process.
101. Under Texas law Article 1.05 of the Code of Criminal Procedure and the
Texas Constitution Article 1, Section 10, BARNES is entitled to a speedy trail by an
impartial july. The delay by TRAVIS COUNTY and WILLIAMSON COUNTY has
been unreasonable and BARNES has suffered harm in presenting her defense because the
main exculpatory evidence has been destroyed, and the jury will not be impartial due to
the bad faith litigation tactics in suborning, promoting, and publishing the aggravated
perjury and defamation of TUMLINSON, BR1NKMANN, DE LA VEGA, MCCABE,
HOBBS, and FOSTER, to the media, tampering with governmental records, and
unilaterally suppressing evidence and witnesses favorable to the defense.
102. Favorable evidence that is critical to BARNES' defense, in both of these
cases, is now unavailable, despite BARNES' diligent efforts to secure, protect, and obtain
this exculpatory evidence in a timely and meaningful manner. BARNES has not done
anything to cause the delay in trying these casesBARNES has been at every hearing
demanding timely discovery, a speedy trial, and the exculpatory evidence, and has done
everything possible to protect, preserve, and present the most probative and essential key
evidence in these cases, to no avail; and BARNES has diligently sought the speedy
resolution of these false and fabricated accusations due to the unprecedented damage to
her reputation and right to practice law that the aggravated perjury and other felonies
committed by these Defendants, acting in concert, have caused.
103. All delays in these cases are directly attributable to TRAVIS COUNTY
and WILLIAMSON COUNTY as part of their bad faith litigation tactics to obstruct
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justice, suborn perjury, manipulate any eyewitness testimony, and hide and secrete the
exculpatory evidence that would prove the truth, clear BARNES' name, and mitigate the
harm, damages, injury, and losses.
104. BARNES was arrested, jailed, and forced to post bond/bail five times in
seven months, before being indefinitely incarcerated pretrial, to retaliate against
BARNES for exposing the corruption in TRAVIS COUNTY and WILLIAMSON
COUNTY, especially in the criminal justice system.
105. On July 9, 2010, BARNES was ordered to the Williamson County
Probation Office, however, when she arrived she was not allowed to take her purse, cell
phone, or any personal belongings into the building with her. Once inside, GRIFFITH
was rude, demeaning, and made fun of BARNES' legal abilities and qualifications before
he physically forced the anide monitor on her left leg with threats of having her
immediately arrested and thrown back in jail without bond. GRIFFITH refused to allow
BARNES to call her attorney or consult with her attorney. BARNES had advised that it
was unconstitutional and unlawful to unilaterally modify the surety bail bond contract
and GRIFFITH told BARNES in a threatening and demeaning tone of voice that she
either submit to the criminal tagging or he would call deputies to come arrest her.
BARNES knew in WILLIAMSON COUNTY that this was a real and imminent threat, so
she informed GRIFFITH that by placing that criminal tag leg iron on her that
WILLIAMSON COUNTY and all those who were responsible for this shocking and
outrageous conduct would be contractually bound to pay $7,000.00 per day per person
responsible, including him. GRIFFITH was the final policy maker and refused to consult
with anyone and agreed to the terms by forcefully and vindictively attaching the criminal
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tag leg iron on BARNES. Therefore, BARNES is entitled to recover said liquidated
damages in the amount of $7,000.00 per day from GRIFFITH, SHAVER, BRADLEY,
MCCABE, MCDONALD, DE LA VEGA, BRINKMANN, and any other person the jury
finds was responsible for this cruel pretrial vindictive punishment. BARNES was forced
to wear this criminal tag leg iron from July 9, 2010 through February 28, 2011.
106. BARNES and her attorney filed an application for habeas corpus to
remove the unfair and unjust sua sponte imposition of the criminal tag leg iron by
CARNES; however, CARNES failed and refused to set the application for hearingjust
as he did with all of BARNES' pretrial motions.
107. BARNES prepared pleadings and a petition for writ of habeas corpus in
order to seek relief and protection from the federal courts. In July 2010, BARNES went
to the federal courthouse in Austin, Texas, with the monitor so that the court could see
the device, in order to file for relief and obtain a hearing date for service and notice.
However, when she arrived, a large man with a very short haircut came out and started
threatening and abusing BARNESthe very first thing out of his mouth when he
approached BARNES from behind was "I'm not going to have you coming in here
starting trouble!" BARNES had not done anything at all and there was no trouble until
this man, who was later identified as CLIFTON, came out and started berating BARNES.
CLIFTON acted like he knew BARNES, but to the best of BARNES' knowledge she had
never seen CLIFTON, either before or since that day. CLIFTON called WILLIAMSON
COUNTY and spoke to some employee, and then refused to allow BARNES into the
federal courthouse claiming she was a security risk. Thus, BARNES was not able to seek
redress of grievances, oversight, or protection from the federal courts either. CLIFTON
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violated BARNES' civil rights, obstructed justice, and hindered BARNES' access to the
courts for no legitimate reason.39 CLIFTON has also agreed to testify against BARNES
in the malicious prosecution of the felony case in WILLIAMSON COUNTY and
according to MCCABE, MCDONALD, and BRADLEY, CLIFTON has agreed to
commit aggravated perjury to aid and assist in the conviction of BARNES.
108. On July 13, 2010, Judge Flowers finally dismissed the false and malicious
felony charges in Travis County arising from TUML1NSON's aggravated assault,
aggravated kidnapping, and aggravated perjury. BARNES was permanently prevented,
blocked, and hindered from presenting her complaint against TUML1NSON to any grand
jury in Travis County, Texas, in violation of 18 U.S.C. § 241 and 242; 42 U.S.C. §
1983 and 1985.
109. WILLIAMSON COUNTY, WCSD, BRADLEY, MCCABE,
MCDONALD, and CARNES failed and refused to allow BARNES to present her
complaint to the grand jury and failed and refused to present the incident to the grand jury
in May, June, July, or August, 2010, in violation of 18 U.S.C. § 241 and 242; 42 U.S.C.
§ 1983 and 1985. Finally, on September 2, 2010, MCCABE, BRADLEY,
MCDONALD, and BR1NKIVIANN deliberately, intentionally, and knowingly presented a
one-sided, false, and fraudulent case to the grand jury that CARNES had selected with
Linda McDaniels serving as the foreman, while blocking BARNES access and ability to
testify and present the exculpatory evidence and exculpatory witnesses to the grand jury.
BARNES and her witnesses were sitting outside the grand jury room, but MCCABE
would not allow them inside to testify or present evidence. Exculpatory evidence had
previously been provided to BRADLEY, MCCABE, and MCDONALD, but they failed
States Constitution, Amends. 1, 4, 14. 18 U.S.C. § 242.
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and refused to present the exculpatory evidence or BARNES' affidavits to the grand jury.
BRADLEY, MCDONALD, MCCABE, and BRINKMANN knowingly, intentionally,
and deliberately presented the false affidavit of BRINKMANN knowing that it was false,
fraudulent, deceptive and misleading in order to obtain a bad faith, vindictive, and
malicious indictment against BARNES with utmost malice.
110. BARNES was deprived of a hearing on her objection to mental exam,
motion for a full Franks hearing, motion to reduce bond, three separate responses to the
bad faith motions to increase bond, and numerous discovery motions. While the
WILLIAMSON COUNTY Defendants were obstructing BARNES access to the courts
and timely and meaningful discovery, they were also fabricating or tampering with
evidence or records, suboming perjury, and engaging in further and additional violations
of BARNES' constitutional rights by placing known perjury before the grand jury and
blocking BARNES access to the grand jury, misleading the grand jury on the facts and
applicable law to convince them that a first degree felony had been committed, and
exerting undue influence on the grand jury with inadmissible and highly prejudicial
information tending to incite, inflame, and influence the grand jury to agree to the
indictment. The WILLIAMSON COUNTY Defendants had also maliciously maligned
BARNES in the national media, forced her to undergo extensive mental examinations,
and continued the unreasonable search and seizure of BARNES and imposition of
excessive fines and pretrial punishment and detention by coercing BARNES, without any
semblance of due process, into a house arrest, curfew, leg iron, electronic monitoring,
criminal tagging, together with interception, monitoring, andlor tracking with electronic
devices and with audio and video surveillance without a warrant. Further, there was no
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independent grand jury because the malicious prosecutors waited until CARNES
impaneled a new grand jury with Linda McDaniel as the foreman before presenting the
knowingly false probable cause affidavit to the grand jury to obtain the rubber-stamped
indictment.
111. After learning of the indictment, BARNES immediately moved to set all
her pending pretrial motions40 for hearing on October 5, 2010, the next appearance date,
since CARNES had refused to set any of them for a hearing until after the indictment was
secured. However, at the time for the hearing on October 5, 2010, CARNES announced
that he was recusing himself. CARNES deliberately stayed on just to prevent BARNES
from having an examining trial and full Franks hearing, and to insure that an indictment
would be handed down, before he recused himself. The grounds and reasons for recusal
pre-existed this incident and he was not ever a fair and impartial judge or magistrate, but
at all times abused his office, engaged in official oppression, and violated the public trust
to satisfy his own personal animosity and urge for vindictive retaliation.
112. Defendants then conspired to quickly secure the assignment of a
notoriously oppressive retired judge, SHAVER, to act as a subterfuge and artifice to carry
out their malicious scheme.41 BARNES immediately filed an objection to his assignment
and set out the reasons therefore because it was clear that BARNES would not receive
due process, equal treatment under the law, or due course of law from SHAVER.
SHAVER is simply not fair, neutral, or impartial. Without referring the objection to his
°
These included the discoveiy motions and "MOTION TO REMOVE RESTRICTIVE AND PUNITIVE
CRIMINAL TAG" that stated the following: "Defendant was not provided with any due process hearing
prior to the Court ordering her to turn over all her weapons; to submit to criminal tagging; to submit to
house arrest; and to submit to a curfew. All of these additional actions were taken after Defendant had
already posted a $50,000.00 surety bond without any of those conditions or tenns."
Case 1:12-cv-00028-LY Document 18-1 Filed 07/16/12 Page 28 of 51
assignment, SHAVER summarily denied BARNES' objection and stated that she was not
entitled to object to his assignment. As anticipated, BARNES received the same
retaliatory and vindictive treatment from SHAVER, who worked out of CARNES' office
and utilized CARNES' staff, so that the refusal to grant BARNES equal access to the
courts and ability to obtain hearings continued. So, the change in judges resulted in no
substantive change and no fundamental or structural improvement at all.
113. Thus, BARNES was indicted on September 2, 2010; her motions were still
not heard on October 5, 2010; SHAVER made his first appearance on November 4, 2010,
but also refused to hear any of BARNES' motions and announced that she would only be
allowed one day to present all of her pretrial motions on December 16, 2010, and could
not obtain any discovery until after that time. The jury trial was set for February 28,
2010.
114. BRADLEY, MCCABE, MCDONALD, SWAIM, ESCAMILLA,
TRAVIS COUNTY and WILLIAMSON COUNTY continued to work in tandem on
these two groundless, vindictive, and malicious prosecutions. On November 4, 2010,
BARNES had to appear in WILLIAMSON COUNTY on the GITTEL aggravated assault
with a deadly weapon charge, and the next day, on November 5, 2010, BARNES had to
appear in TRAVIS COUNTY on the TUML1NSON interference with the duties of a
public servant charge. On December 15, 2010, BARNES had to appear in TRAVIS
COUNTY on the TUMLINSON misdemeanor charge, and the next day, on December
16, 2010, had to appear in WILLIAMSON COUNTY on the GITTEL felony charge.
SWAIM would come to the hearings, when he did appear, with the TRAVIS COUNTY
41
This case illustrates the inherent flaw of any system that would allow one political figure to appoint
judges without accountability to the voters. The potential for abuse of that power is too tempting. In this
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file and a thick, fully expanded, accordion file that he claimed he received from
WILLIAMSON COUNTY concerning BARNES' "criminal histoiy" there. Defendants
always refer to their bad acts, harassment, retaliation, and false arrests as BARNES'
"criminal history." SWAIM at all times refused to allow BARNES to view the contents
of the thick accordion file from WILLIAMSON COUNTY.
115. On December 16, 2010, SHAVER did not conduct a normal hearing or
even permit any presentation of BARNES' pretrial motions or hear any argument.
SHAVER brought in a piece of paper and quickly read off his rulings. In over 25 years
of trial work, BARNES had never experienced a "hearing" where one could not be heard;
instead the decisions were predetermined and dictated into the record.
116. In keeping with the habit, practice, policy, and custom of WILLIAMSON
COUNTY, MCCABE, BRADLEY, MCDONALD, BRINKMANN, WCSD, and
WILSON, continued to obstruct justice, thwart discovery, conceal, hide, and fail to
preserve and produce exculpatory evidence, engage in bad faith litigation tactics, and
delay the case, thereby destroying BARNES critical right to a fair and speedy trial.
BARNES is routinely and historically forced to choose between obtaining the
exculpatory evidence or right to a speedy trial, both individually and on behalf of her
clients. These Defendants routinely fail and refuse to produce Brady material. Even with
the court order and knowing of the impending February 28, 2011 jury trial setting, they
refused to produce the Brady material.
117. SWAIM, ESCAMILLA, TCSD, HAMILTON, TUMLINSON, and
KLEKAR also continued to engage in the same dilatory tactics. BARNES diligently
sought access to the large accordion file SWAIM, ESCAMMILLA, and TRAVIS
case, rather than a court of law, we ended up with a Star Chamber.
Case 1:12-cv-00028-LY Document 18-1 Filed 07/16/12 Page 30 of 51
COUNTY had in their possession and the video recording from the courthouse security
camera showing TUNLINSON assaulting BARNES, to no avail. SWAIM would tell the
judge that BARNES just had to come to his office to review the files and evidence,
however, he would instruct the receptionist and secretaries to say that he was not there
and that the file was not there. Every time BARNES made an appointment, the same
thing occurred. WILLIAMSON COUNTY, TRAVIS COUNTY, WCSD, TCSD,
SWAIM, ESCAMILLA, BRADLEY, MCCABE, and MCDONALD were clearly
working in concert on these two malicious prosecutions to block, interfere with, and
prevent BARNES' access to the evidence and witnesses that would prove the truth and
clear her name; to deprive her of her right to a fair and speedy trial and to mitigate the
extensive damages, injuries, and irreparable harm to Plaintiffs. This delay and
obstruction of justice has prevented BARNES from exposing this criminal conspiracy by
proving that these Defendants knew from the inception that all these charges were bogus,
false, fraudulent, and career-ending, but they proceeded nonetheless with malice, a
conscious disregard, and deliberate indifference to the rights, safety, and welfare of
Plaintiffs.
118. BARNES filed a motion to compel WILLIAMSON COUNTY to comply
with the discovery orders and produce the exculpatory evidence, however CARNES'
employee refused to set BARNES' motion to compel for a hearing; forcing BARNES to
have to file a motion for continuance because it would not be a fair trialCARNES'
employee also refused to set that motion for a hearing. Thus, BARNES was forced to
appear for trial without the evidence she had diligently sought for over eight months prior
to trial, and not knowing if the case would go to trial or not.
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119. This was BARNES' first and only motion for continuance, it was caused
by the bad faith litigation tactics of the WILLIAMSON COUNTY prosecutors and
deputies, it was sworn to, and no oppositional response or controverting affidavit was
filed. However, on February 28, 2011, SHAVER denied the motion for continuance and
stated that the case would go to trial without the exculpatory evidence. SHAVER refused
to enforce his own discovery orders, and continued to allow WILLIAMSON COUNTY,
CARNES, BRADLEY, MCCABE, MCDONALD, and other employees of
WILLIAMSON COUNTY to dictate and direct the proceedings. Despite BARNES'
filing of a motion to cease the ex parte communications and grand standing to the press
and obtaining orders to prevent, the ex parte communications and decisions continued
and the prosecutors continued to make derogatory and defamatory remarks to the press.
The ex parte communications and defamatory accusations to the press completely
undermined the integrity of the proceedings and created a fundamental structural defect
in the proceedings. There was simply no way that BARNES was ever going to obtain a
fair and speedy trial or have any viable means to prove the truth and clear her name due
to this orchestrated scheme.
120. SWAIM was even present in the WILLIAMSON COUNTY district court
to assist the WILLIAMSON COUNTY prosecutors and influence SHAVER on February
28, 2011. SWAIM and TRAVIS COUNTY appeared, aided, and abetted BRADLEY,
MCCABE, MCDONALD, and WILLIAMSON COUNTY in the malicious prosecution
of BARNES, and SWAIM even made SHAVER aware that he was "prosecuting"
BARNES "in another case pending in TRAVIS COUNTY."
88
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121. After lunch, during the jury selection process, it became apparent that
discussions and decisions had occurred over the lunch break because SHAVER reversed
his decision to deny the continuance; but, he did it in a twisted manner to assist the
malicious prosecutors and pursuant to a devious unconstitutional scheme using trickery
and deception.
122. The continuance was sought by BARNES solely to obtain the exculpatory
evidence that WILLIAMSON COUNTY, WCSD, HERNANDEZ, BRINKMANN,
BRADLEY, MCCABE, and MCDONALD failed and refused to producethe cell phone
records from GITTEL's phone showing who she talked with on May 8, 2010 and
showing she never called 911; the addresses or print out of the assigned addresses, as
well as the maps provided by the Census Bureau for these addresses, to prove who
GITTEL was really sent to talk to and the addresses where she was really sent to on May
8, 2010, to prove that she was not sent to visit with BARNES and was not sent to
BARNES' address, etc. This Brady material is not only exculpatory, but it would also
prove that these Defendants knew the truth at the time they all met to plan this malicious
and retaliatory scheme on Saturday, May 8, 2010, and throughout this malicious
prosecution.
123. It was clear WILLIAMSON COUNTY could not prove their case
MCCABE had even announced an amendment to the indictment removing the allegation
that GITTEL was a public servant because WILLIAMSON COUNTY knew that the
defense could prove that GITTEL could not legally and lawfully trespass and that the
rules, regulations, and training manual specifically instructed census enumerators NOT to
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go beyond a locked gate without the landowner's permission or consent.42 Thus, even
though WILLIAMSON COUNTY and these malicious prosecutors and investigators had
failed and refused to produce the exculpatory evidence proving that GITTEL was not
ever sent to BARNES' address and that she could not have been shot at because she
never called 911, they still could not overcome the undisputed fact that for their plan to
work, they would have to admit that GITTEL was a criminal trespasser, if they were
intending to allege that she was on BARNES' property.
124. Rather than simply grant BARNES the continuance required by due
process, SHAVER abused his position to coerce BARNES to choose between her
constitutional rights because he did not ever intend to afford her any rights unless they
were beneficial to the prosecutors and WILLIAMSON COUNTY who selected and paid
him for his participation in this malicious scheme.
125. BARNES had a right to represent herself, being a duly licensed lawyer,
and to appear with co-counsel of her choice;43 and she had filed that written election on
June 15, 2010. Neither the court nor the prosecutors had ever placed BARNES on notice
that there was any objection to this election. However, SHAVER stated that he would
not grant BARNES a continuance to obtain the exculpatory evidence unless she agreed to
have a court-appointed attorney. The granting of the continuance was definitely tied and
connected to and conditioned upon BARNES agreeing to the court-appointed attorney.
126. BARNES had not ever asked for a court-appointed attorney, and did not
want one. BARNES had retained her own counsel to assist her. This forced appointment
42
WILLIAMSON COUNTY, BRADLEY, MCCABE, and MCDONALD also failed and refused to
produce a copy of this training manual or the policies and procedures, and the Census Bureau refused to
produce it in response to a FOIA request, but BARNES had obtained a copy nonetheless. It is clearly
Brady material.
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of a lawyer violated equal protection under the law because WILLIAMSON COUNTY
routinely denies court-appointed attorneys to people who qualify, and BARNES certainly
did not qualify under the WILLIAMSON COUNTY standards.
127. There was definitely an undisclosed ulterior motive to this forced court-
appointment. However, BARNES would forfeit her right to complain on appeal about
not being provided with the exculpatory evidence when the court offered the continuance,
even if it was unconstitutionally conditional. Further, BARNES knew that her real co-
counsel and BARNES could over-ride any court-appointed lawyer, and she anticipated
that the court-appointment would be the usual standby counsel appointed for pro se
defendants. So, BARNES finally relented and agreed to a court-appointed attorney in
order to get the continuance until June 13, 2011 solely and only to obtain the Brady
material that WILLIAMSON COUNTY, BRADLEY, MCCABE, and MCDONALD
continue to withhold from BARNES to this day.
128. BARNES could not have predicted or foreseen the malicious scheme that
these Defendants had devised. Had the true intent behind the granting of the continuance
been disclosed, BARNES never would have sought or agreed to the continuance, and
certainly never would have agreed to the court-appointed attorney, who turned out to be
SCHREIBER; and BARNES would have just tried the case on February 28, 2011
because WILLIAMSON COUNTY, BRADLEY, MCCABE, MCDONALD,
BR1NKMANN, and GITTEL could not have proven their malicious allegations. Even
without the exculpatory evidence and knowing they had suborned perjury and would be
putting aggravated perjury into evidence, BARNES still felt confident the truth would
prevail.
Texas Constitution Art. I, § 10.
91
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129. BARNES sole purpose in seeking the continuance on February 28, 2011,
was to obtain the exculpatory evidence that SHAVER had ordered WILLIAMSON
COUNTY, WCSD, GITTEL, POPPA, BRADLEY, MCCABE, and MCDONALD to
produce on December 16, 2010. However, after the appointment of SCHREIBER,
SHAVER then immediately forbid BARNES from filing anything further in her case and
forbid her to even say anything else in her defense.
130. After February 28, 2011, the District Clerk, CARNES' court coordinator,
and the court reporter ignored any filings or requests made by BARNES. BARNES has
been de facto enjoined from representing herself in this pending criminal case and the
matters arising therefrom ever since February 28, 2011, despite the clear holding in
Faretta v. California, 422 U.S. 806, 820 (1975). This forced appointment of a lawyer
clearly violates Texas Constitution Art. I, Section 10, as well as United States
Constitution Amends. VI and XIV. BARNES was entitled to represent herself and to
utilize her retained attorneys as agreed, and she had a right to her own trial strategy and
presentation of her own defense. The unconstitutional actions of SHAVER at the
prompting of BRADLEY, MCCABE, MCDONALD, acting in concert with SWAIM and
ESCAMILLA, have forever deprived BARNES of this valuable constitutionally
protected fundamental structural right. This action has prevented BARNES from
fulfilling her contractual obligations to her retained attorneys thereby depriving her of
their assistance, completely derailed the defense, and forever deprived BARNES of her
right to a speedy trial before a fair and impartial jury. It also set up the unconstitutional
institution of punishment, banishment, and outlawry of BARNES, without due process or
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due course of law that ensued pursuant to the malicious conspiracy to punish BARNES
without a trial knowing she was not guilty of all the charges fabricated against her.
131. The unprecedented actions of SHAVER ignore the well-established law in
this State that the judge can appoint a stand-by attorney to assist the accused, but the
court has no discretion to deprive the accused of his right to self-representation. The
actions of SHAVER violated the 6th Amendment to the United States Constitution and
Texas Constitution Article I, Section 10, 19, 27, 28, and 29. only the Legislature can
suspend the laws in this State; the court is not free to suspend the laws of this State.44 If
the Legislature cannot suspend the Texas Constitution, then the courts are not free to
suspend the Texas Constitution. At every step in the proceedings, the court has
suspended the Constitution and laws of this State and deprived BARNES of due course of
law.
132. On February 28, 2011, immediately after forcing the court-appointed
attorney on BARNES and while she had no representation, (having herself been banned
from speaking on her own behalf or representing herself), BARNES was subjected to an
unconstitutional sua sponte revocation of the $50,000 surety bail bond by SHAVER
without any semblance of due process, notice, hearing, or opportunity to be heard;
resulting in a frank breach of the $50,000 surety bail bond contract that BARNES had
with the State of Texas, due solely to the vindictive and punitive actions of
WILLIAMSON COUNTY, and its prosecutors, deputies, CARNES and SHAVER.
133. BARNES had come to try the case to a jury, but, instead was thrown back
in jail without any warning or opportunity to contact her clients, her children, or make
arrangements for the care of her minor child or the handling of her business and personal
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affairs. This was the epitome of malice and is the habit, practice, and custom of
WILLIAMSON COUNTY and TRAVIS COUNTY. Once in the jail, BARNES learned
that she would be held without bail in solitary confinement with a Level One
Classificationthe most onerous, oppressive, and punitive form of incarceration. This
was a direct violation of Tex. Const. Art I, § 11, lib, 19, and 29 and U.S. Const.
amends. 4, 8, and 14.
134. BARNES was held in solitary confinement without any exposure to
sunlight or the outdoors, fed a starch and sugar diet through the slot in the door like a dog
in a kennel, not allowed to shower daily or given clean clothes, deprived of sleep and
clean water, deprived of appropriate medical care, deprived of privacy because a trustee
was paid to stand at BARNES cell door and watch her 24-hours a day, and BARNES was
shackled and hand-cuffed to a wide leather belt at the waist whenever she left solitary
confinement and videotaped at all times. BARNES was not permitted to visit, call, or see
any family or friends or her real lawyers. BARNES was repeatedly abused and harassed
and denied appropriate medication, medical care, weliness modalities, or adequate pain
relief. BARNES was physically assaulted, verbally abused, and maliciously maligned
while in the jail. BARNES was nearly suffocated by deputies forcefully strapping her
down on a hard board with a hard neck brace that deliberately constricted BARNES'
breathingBARNES was deprived of oxygen until EMS administered oxygen to revive
BARNES. Has it not been for EMS arriving, WCSD would have asphyxiated BARNES
with malice. BARNES was physically abused at the hospital by a WCSD when she
pulled on BARNES handcuff chains while BARNES' wrist were handcuffed to the
leather belt and her feet were shackled and forcefully and violently pulled BARNES off
Texas Constitution Article I, § 28.
94
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the high exam table to the floor, crushing BARNES' left elbow and jamming her left
shoulder. The shoulder injury was not addressed and the required physical therapy that
was denied until BARNES was in the MSU. BARNES was also exposed to fungal
infections, Hepatitis B, viral infections, and bacterial infections due to the filth in the jail.
135. BARNES remained in solitary confinement from February 28, 2011
through June 1, 2011, when she was kidnapped and forced against her will, under cover
of darkness, to Vernon, Texas, where she was held under atrocious conditions for over
ten months in the MSU; and she remains in captivity to this day, without ever having a
jury trial. This unprecedented action clearly violated the laws and Constitutions of Texas
and the United States.45 BARNES has been deprived of equal protection, due process,
and due course of law.
136. On March 1, 2011, BARNES' representatives immediately filed another
application for writ of habeas corpus46 and physically went to the courthouse to file it
and spoke personally with CARNES' court coordinator to get it set for hearing. The
court failed and refused to set either of the applications for writ of habeas corpus for
hearing. BARNES' representative was treated rudely and disrespectfully and escorted
from the courthouse. The court suspended the writ of habeas corpus and obstructed
justice. The suspension of the "writ of right" was in violation of Texas Constitution
Article I, Section
'
Texas Constitution, Art. I, § 3, 3a, 9, 11, jib, 13, 19, and 29; United States Constitution, Amends. 4, 5,
6, 8, and 14.
46
The first application for writ of habeas corpus had been filed by BARNES' prior lawyer after CARNES
and GRIFFITH unconstitutionally forced the criminal tag and leg iron on BARNES in July 2010; however,
CARNES and SHAVER refused to hear it.
" Texas Constitution Article I, Section 12 provides that the Writ of Habeas Corpus is a "writ of right and
shall never be suspended." This writ of right should be "speedy and effectual." However, BARNES has
been held in captivity for over a year due to the direct suspension of the "writ of right" so it has not been
"speedy and effectual."
95
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137. SHAVER, the clerks, and CARNES' court coordinator refused to
acknowledge anything that was not filed by SCHREIBER and he was not doing
anythingthus, the reason the prosecutors insisted upon him as the court-appointed
attorney. BARNES had no right of recourse and the open courts doctrine was overridden
by this malicious abuse of process of forcing a court-appointed lawyer on the accused
not to assist them, but to ensure that all their constitutional rights would be waived and
they would be deprived of any right to appeal or seek redress of grievances or writ of
habeas corpus. This was the very situation that concerned the Supreme Court in deciding
the Faretta case, when California had amended its constitution to remove the right to
self-representation. Texas' constitution not only protects the right to self-representation,
but has the added language "or both" for double protection of the constitutional right for
dual representation. Texas' constitution also adds the language of Section 29 to make
these rights clear, solid and forever inviolate.
138. Although, SCHREIBER originally stated that he would file an application
for writ of habeas corpus and obtain the transcripts of the hearing to show the lack of
constitutionality in revoking the surety bail bond and breaching the contract between
BARNES, the Surety Company, and The State of Texas, over time he failed and refused
to do so. After spending over two hours "visiting" with the malicious prosecutors,
SCHREIBER became extremely hostile and uncooperative with BARNES.48
SCHREIBER is nothing more than a co-prosecutor in this case and he has a significant
Initially SCHREIBER was senile appearing and very condescending and disrespectful towards women,
which BARNES attributed to his age or vice; he would refer to BARNES as "Kiddo" from the first
meeting. There were only four brief meetings between BARNES and SCHREIBER, but he went from
being senile and incompetent to being extremely disrespectful, dishonest, unethical, and insistent upon
fashioning a defense that the prosecutors wanted, rather than one based on the truth. After he met with the
prosecutors, he became a co-prosecutor rather than a defense lawyer.
Case 1:12-cv-00028-LY Document 18-1 Filed 07/16/12 Page 40 of 51
conflict of interest because he is placing his own self-interest above and before the best
interests and desires of his purported client. WILLIAMSON COUNTY, BRADLEY,
MCCABE, MCDONALD, HOBBS, RYE, ANDERSON, CARNES, SHAVER, SWAIM,
and ESCAMILLA knew that SCHREIBER would be easily manipulated and controlled
by the prosecutors and that he would never try the casecertainly, not effectively, and
that is why he was chosen to be the appointed lawyer thrust on BARNES under grossly
false pretenses.
139. By the first week in April, 2011, it became obvious that SCHREIBER
was ineffective and incompetent, claiming he had not ever filed a petition for writ of
habeas corpus before and did not know how to do one. SCHREIBER further admitted
that he had not ever tried a case in Texas, not even a misdemeanor. BARNES has been a
trial lawyer for almost 30 years, and it became painfully obvious that SCHREIBER did
not know Texas law, the Texas Criminal Code, the Texas Penal Code, or any Texas
procedure. It also became obvious why the prosecutors selected SCHREIBERhe had
no intention of trying the case and would only plea bargain.49 BARNES suspects he has
not tried a case first chair in decades. He refused to do anything to prepare the case or
pursue the obtainment of the discovery that formed the basis of the discovery orders that
BARNES had already obtained from the courtthe sole reason for the continuance was
to get the exculpatory evidence and he failed and refused to do so. He stated that he was
not BARNES' "investigator or secretary" and that HE was "the lawyer" and would do
"
From the very first meeting, before he knew anything about the case, SCHREIBER began trying to coax
BARNES into a plea bargain; and even though she repeatedly refused and insisted upon a jury trial and
presentment of her defense, he progressively became more and more aggressive with his insistence upon a
plea bargain, and had even spent the "two hours visiting" with the prosecutors trying to negotiate a plea
bargain. SCHREIBER simply was not going to try any casehe was retired and had moved to
WILLIAMSON COUNTY to be near his granddaughter and these court appointments were just a source of
easy income for him.
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things "his way." "His way" turned out to be the prosecutors' way because he went right
along with their theory of motive, without ever considering the lack of evidence or
rationality to their accusations.5°
140. From February 28, 2011, when he was appointed until early April when
BARNES fired him,51 SCHREIBER refused to withdraw, yet, did nothing to prepare the
case for trialhe did not even speak with the witnesses or view the scene, and he did
nothing to free BARNES from the illegal and unconstitutional pre-trial punishment and
incarceration.
141. The case was set for trial on June 13, 2011, and the pretrial hearing was
set for April 28, 2011, which was the next time BARNES was back in court following the
wrongful revocation of the surety bail bond and breach of contract. BARNES was no
closer to obtaining the Brady material than she had been on February 28, 2011. Her
50
The appointment of counsel cannot be used as a subterfuge to deprive an accused of his constitutional
rightsthat is exactly the facts of this case. This is the very situation that the framers of the Texas
Constitution intended to address, guard against, and prevent in drafting the wording of Article I, Section 10
because there is an inherent risk of corruption when the prosecutor is malicious and the charges are
vindictive and the prosecutor is allowed to hand-pick a visiting judge and a defense counsel. There is an
inherent bias against the accused when the prosecutor, the judge, and the defense counsel are all paid by the
State because if the defense counsel is unethical and incompetent as SCHREIBER is, then it deprives
BARNES of any representation when she is prevented from representing herself. BARNES has been left
standing alone against the unchecked corruption of the malicious prosecutor who has done nothing short of
soliciting and obtaining two co-prosecutors, while continuing the subterfuge of pretending that BARNES
has legal representation when, in fact, she was deprived of her right to be heard by herself and of her right
to be heard by counsel both. BARNES was deprived of her 6th Amendment right to effective assistance of
counsel and a vigorous and zealous defense. Further, under the facts of this case, BARNES had already
filed Defendant's Notice of Constitutional Election and Memorandum to the File (file-marked June 15,
2010), and stated her election in all capital letters on pages 4-5, pursuant to Texas Constitution Article I,
Section 10. The State did not ever file a response or objection to this election; and BARNES subsequently
obtained a court order preventing any further ex parte communication and requiring all discussions,
communications, and hearings to be conducted in BARNES' presence.
51
BARNES fired him because he was not only rude, arrogant, condescending, and disrespectful, he simply
refused to listen to her or prepare HER defense. SCHREIBER was insistent upon assuming the allegations
by the prosecutors were true and then developing a defense to mirror those false allegationsessentially a
false defense to a false charge, rather than presenting and standing on the truth, confronting the evidence,
and cross-examining the witnesses. Most importantly, SCHREIBER had not been honest with BARNES
and his tactics and ideas were unethical. BARNES did not feel comfortable or confident in the integrity
and skills of SCHREIBER, and in this case, a pro se defense would be better than the court-appointed
defense.
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hands were tied by a dishonest and unethical court-appointed lawyer who was being
spoon-fed and manipulated by the prosecutors. WILLIAMSON COUNTY, SHAVER,
MCCABE, BRADLEY, MCDONALD, HOBBS, RYE, TRAVIS COUNTY, SWAIM,
and ESCAMILLA had simply set up a Star Chamber to take care of BARNES and rid
them of their two malicious prosecutions that were false, fraudulent, and vindictive from
their inception.
142. After BARNES fired SCHREIBER in early April 2011, he had no other
contact with BARNESno visits, no letters, no calls. On April 28, 2011, the next
opportunity BARNES had to communicate with the "visiting" judge after the malicious
revocation of the surety bail, BARNES advised the court of the ineffective assistance of
counsel and the fact that SCHREIBER was incompetent, had never tried a case in Texas,
not even a misdemeanor, and attempted to make a record to prove his deficiencies;
however, the court would not allow BARNES to make a record for appeal. SCHREIBER
did not even know about the Castle doctrine, which is central to the defense in this case,
and said he had to "research" it. SHAVER interrupted BARNES' attempt to make a
record to prove SCHREIBER's lack of effective assistance and SHAVER merely asked
SCHREIBER, "Are you licensed to practice law in Texas?" and when SCHREIBER
indicated that he was, SHAVER said "Good enough." SHAVER summarily deemed
SCHREIBER, with his mere "license to practice law in Texas," was "good enough" for
due process in defending against a first degree felony brought by a malicious prosecutor
without any regard for the truth, fairness, or justice. A lawyer who can merely fog a
mirror is not "good enough" and this lawyer, in particular, is NOT representing
BARNES' best interest, but is representing his own best interest at BARNES' expense.
Case 1:12-cv-00028-LY Document 18-1 Filed 07/16/12 Page 43 of 51
This fact is demonstrated repeatedly after the hearing on April 28, 2011 because
SCHREIBER repeatedly violated his ethical obligations and statutorily mandated duties.
143. BARNES was immediately thrown back in jail, just after seeing
SCHREIBER completely bungle the motion to depose GITTELhe simply said nothing
and allowed MCCABE to present his objection, did not respond, and made no effort to
make a record for appealit was treated as if it were MCCABE's motion rather than a
defense motion. SCHREIBER made no attempt to obtain the exculpatory evidence that
BARNES had been seeking for almost a year and that would have supported the motion
to depose GITTEL. The transcripts would prove the truth and that is the reason
SHAVER is obstructing justice and advising the court reporter and district clerk to ignore
BARNES' repeated requests for the clerk's record and court reporter's record on appeal
and in support of the applications for writ of habeas corpus.
144. All of the WILLIAMSON COUNTY and TRAVIS COUNTY Defendants
knew that SCHREIBER's incompetence, laziness, or senility would be attributable to
BARNES on appeal and that the appellate courts would hold that errors were waived by
trial counsel's failure to object, make a record, or preserve error. BARNES was not even
allowed to speak and had to watch and bear this atrocity in silence. This is the manner in
which all Defendants planned for and intended the trial to proceed. BARNES would be
convicted and all error would be waived by trial counsel's failure to preserve error for
appeal.
145. Then, SCHREIBER, who was not prepared to try the case in June,
conspired with the malicious prosecutors, and they revived the "competency" issue that
had already been resolved and put to rest in June and July 2010, at great expense to the
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defense. This was and always has been a defamatory ruse by the prosecutors in this
malicious prosecutiontheir entire theory of motive was fashioned around BARNES
being "a disturbed individual" who "suffered a complete break with reality" and shot at
GITTEL because BARNES thought she "looked like RYE." Now, WILLIAMSON
COUNTY had a court-appointed attorney they could manipulate and they did;
additionally SCHREIBER wanted revenge for BARNES' reporting of his incompetence
to the court on April 28, 2011, and her efforts to make a record for appeal to prove the
same.
146. BARNES had already retained two expert witnesses on the issue of
competency who had previously evaluated her and filed reports with the court.52
However, rather than utilize BARNES' retained experts, SCHREIBER wanted a different
result, and he, therefore, retained another psychologist to advance his interestDusty
HumesHUMES. In violation of his fiduciary duty and ethical obligations,
SCHREIBER did not ever discuss any of his plans with BARNES; as a matter of fact,
SCHREIBER never visited with BARNES or spoke with BARNES again after she fired
him during the first week of April, 2011. From that day forward, everything
SCHREIBER did was on his own without any consultation, approval, or participation of
BARNES; and nothing was in BARNES' best interest, but was solely to advance the
personal interests of SCHREIBER.
147. BARNES had no notice or knowledge that the malicious prosecutors and
SCHREIBER had revived the "incompetency" and "mental illness" issue. So, when
52
Dr. Robert Cantu and Dr. John Breeding had filed written reports that BARNES was more than
competent to stand trialas would be expected with almost 30 years of criminal defense workand
WILLIAMSON COUNTY's retained expert, Dr. Richard Coons, had agreed that BARNES was competent
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HUMES came to the jail under the false pretense of seeing if she could work out the
"differences" that BARNES was experiencing with SCHREIBER, BARNES agreed to
see her and try to resolve these "differences."53 HUMES was very deceptive and said
that she had been hired by SCHREIBER to help resolve these "differences" and that it
was "highly unlikely" that she would ever testify in court. HUMES did not even ask the
usual competency questions and spent the entire time on the issues with SCHREIBER, so
there was nothing to put BARNES on notice that she was conducting a competency
evaluation. HUMES spent a very short time with BARNES and clearly had a pre-
determined opinion that was set by SCHREIBER and bolstered by BRADLEY,
MCCABE, MCDONALD, HOBBS, RYE, and the WCSD and Jail deputies, since these
were the same ones who had conspired with these same prosecutors on Saturday, May 8,
2010, the date of the alleged GITTEL events. They were determined to push and
construct their "crazy" motive.
148. After paying HUMES to fabricate an opinion that BARNES was
incompetent to stand trial, it was a very simple matter to get the prosecutors' expert,
Richard Coons, to change his opinion and find BARNES incompetent to stand trial.54
Since these opinions are not based on any scientific or objective evidence, they are easily
manipulated and controlled by the prosecutors because if you want to keep the income
flowing, you have to satisfy the hands that feed you. BARNES was fully competent to
stand trial, as a matter of law; and this was a gross and malicious abuse of process
to stand trial. All three reports were on file with the court, so SCHREIBER and the prosecutors were well
aware of these reports and opinions.
HUMES would not even enter the solitary confinement cell with BARNES until BARNES was secured
in shackles and handcuffs with her hands prnned at the waist to a large leather belt; even then, HUMES sat
in a chair across the cell from BARNES near the door.
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pursuant to T.C.C.P. art. 46B. The Dusky55 case never intended such a bizarre outcome
with the standard being applied offensively to deprive the accused of a speedy and fair
trial.
149. This is direct and verifiable evidence of the difference between having
effective assistance of counsel and having a right to appear in person or through counsel
or both, as opposed to having a court-appointed attorney leading to the Star Chamber
effect where the accused is left completely out of the process, their defense is hijacked
and never presented, and they are thus, left, effectively, with no representation at all.
When BARNES was appearing pursuant to her Tex. Const. Art. I, § 10 right,
(representing herself with counsel of her choice), she was handily able to fend off the bad
faith motive of the malicious prosecutors; however, once the Star Chamber was
instituted, the malicious prosecutors, with the aid and assistance of the court-appointed
lawyer, were handily able to shove through their bad faith motive, and readily achieve the
objective of the criminal conspiracypunishment and confinement of BARNES
indefinitely without a jury trial or any semblance of due process, equal protection, or due
course of law. 56
150. On May 19, 2011, the WCSD deputies removed BARNES from solitary
confinement and told her she had court at 9 a.m., but they did not know the purpose.
BARNES had no notice whatsoever about this hearing date or the purpose of the hearing,
and it was designed to be a procedural and substantive ambush. BARNES was taken to
Richard Coons, had previously agreed with BARNES' two expert witnesses that BARNES was
competent to stand trial; however, deriving over $50,000 a year in income from the WILLIAMSON
COUNTY prosecutors, he had to lean towards what they desired.
Dusky v. United States, 362 U.S. 402 (1960). "The focus of a competency inquiry is the defendant's
mental capacity; the question is whether he has the ability to understand the proceedings.
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court in the prison uniform again, with her hands cuffed to the thick leather belt at her
waist and in shackles, so that she would be demeaned and humiliated in front of her
competitors and the audience that the prosecutors always had present, including the
media and videotaping in the courtroom.
151. When BARNES arrived at court, it became apparent that WILLIAMSON
COUNTY, SHAVER, BRADLEY, MCCABE, MCDONALD, and SCHREIBER were
conspiring to have BARNES committed under Tex. C.C.P. art. 46B without any
semblance of due process.57 BARNES immediately objected to the reports and the
process and made her demand for a jury determination pursuant to art. 46B. However,
SHAVER smugly stated that "your attorney has waived your right to a jury trial."
BARNES objected again because SCHREIBER had no authority to waive BARNES'
right to a jury trial. SCHREIBER had not even spoken or communicated with BARNES
since she fired himand certainly did not fulfill his fiduciary obligations and
responsibilities for full disclosure and the consent and permission of the clienthe
continued to act like the principal instead of the agent and shirked his fiduciary
responsibilities as if he were completely oblivious to any creed and devoid of any ethical
foundation.
152. This was not effective ASSISTANCE of counsel, but a complete hijacking
and derailment of the defense. As maliciously planned pursuant to the criminal
conspiracy to violate BARNES' constitutional rights, SHAVER signed the commitment
56
BARNES was never even served with or informed of any of the pleadings, filings, motions, or orders
after SCHREIBER joined the prosecutioneverything was accomplished without any notice, consultation,
or disclosure of information given to BARNES.
Witnesses later advised BARNES that all the discussions and decisions were made off the record before
BARNES was even brought in for the "hearing." The making of the record was a fraudulent pretense.
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order sentencing BARNES to 120 days in the Maximum Security Unit at the North Texas
State Hospital in Vernon, Texas (hereinafter referred to as the MSU).
153. On that same day, May 19, 2011, the day of the "hearing" (where
SHAVER denied BARNES request for a jury trial to determine the issue of competency
and summarily signed the commitment order banishing her to the MSU), MCCABE
authored a defamatory per se four-page document and delivered it to the MSU in order to
deliberately, intentionally, and maliciously taint, prejudice, and direct the diagnoses and
cruel and unusual punishment in the MSU. MCCABE stated that BARNES had suffered
"a complete break with reality" (psychotic), suffered from "persecutory delusions" and
was "paranoid." He also stated that BARNES thought that everyone at every level of
government, (federal, state, and local), were plotting against her. Two of the four pages
listed a long laundry list of "bad acts" and other nefarious allegations against BARNES
for the sole purpose of making BARNES appear to be suffering from a "serious mental
illness" when in fact, the laundry list comprised the prior bad acts of WILLIAMSON
COUNTY and WCSD. MCCABE sent a long list of defamatory per se accusations that
have no basis in truth and stated them as established fact, when they were completely
false and defamatory fabrications by MCCABE. It was a planned fleshing out of the
defamation started by Mike Davis when BARNES first sued WILLIAMSON COUNTY
and WCSD, (its sheriff and three deputies involved in the first false arrest and malicious
prosecution) in 1999, which had continued in caution flags and memorandum throughout
the decade prior to this latest incident, and which was restated by HOBBS to the media
on the day of BARNES' arrest on May 11, 2010. MCCABE ended the scathing
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correspondence with the statement that BARNES was "DANGEROUS" and "needed
FORCED MEDICATION."
154. On June 1, 2011, BARNES was awakened at 2 a.m. without any warning,
handcuffed and shackled, thrown into a marked patrol car, and transported over five
hours in a cramped backseat sitting on a hardboard seat to the MSU, within 20 miles of
Oklahoma.58 BARNES was permanently banished to the MSU and permanently
outlawed without ever having a jury trial or opportunity to clear her namethese
proceedings were completely devoid of any semblance of due process and they made a
mockery of our system of justice. BARNES has been outlawed in violation of the Texas
Constitution because she was afforded none of the rights protected by the United States
and Texas Constitutions, as well as the applicable Texas statutes and legal precedent.
BARNES is currently serving the maximum sentence that can be imposed under the law,
which is essentially a life sentence with the intended result of BARNES suffering
permanent, irreversible, and irreparable brain damage, serious personal injuries from the
numerous physical assaults during this cruel and unusual punishment, and permanent loss
of familial relations, business relations, income, and reputation without any recourse
under the law.59 The sentence was imposed summarily without a trial when the
In route to the MSU, BARNES was informed that WCSD were again acting with utmost malice and
impounding BARNES' vehicle because they suspected that she had escaped from solitary confmement and
planted a bomb in her Jeep and parked it at the Cedar Park Annex, (where they all met on Saturday, May 8,
2010 to plot this vindictive scheme). WCSD claimed that they suspect BARNES was trying to blow up the
building and had to impound the Jeep to have the bomb squad inspect it. WILLIAMSON COUNTY,
WCSD, HOBBS, RYE, BRADLEY, MCCABE, MCDONALD, and WILSON are extremely paranoid and
delusional, and as a result, BARNES was again subjected to an unreasonable search and seizure.
These malicious conspirators deliberately and intentionally forced the court-appointment of
SCHREIBER onto BARNES because they knew this would also deprive BARNES of any ability to appeal
or to seek a writ of habeas corpus. The appellate courts have always punished accused who attempt to
appeal pro se when they have a bad court-appointed lawyerones who always forget that they are agents
and owe a fiduciary duty to the client (the highest duty under the Iaw)by claiming that the pro se cannot
appeal or seek any review, recourse, or relief because they are "represented" by a lawyer and ONLY the
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prosecutors had evidence in their files that proved that BARNES is not guilty of these
alleged crimes. When the malicious prosecutors realized they could not prevail at trial
without suborning perjury and knowingly putting on aggravated perjury to obtain a
conviction, they decided to derail the case and impose the maximum punishment without
a trial. They knew they could only accomplish this if BARNES was in jail and had a
court-appointed attorney they could manipulate and control. This is exactly what
SHAVER handed them on February 28, 2011, after their lunch break together.
155. The malicious prosecutors manipulated and abused process to obtain the
desired resultsto imprison and perform a chemical lobotomy on a vocal political
opponent and competitor in order to take BARNES out of the arena during this election
year, when BRADLEY's bad deeds were catching up with him in the media. The
malicious prosecutors had to first manipulate the process in order to get BARNES in jail
without any right to bail, force a hand-picked court-appointed lawyer on her, and then
obtain a court order finding BARNES incompetent to stand trialit was fairly easy to
accomplish this by blocking BARNES from calling her retained experts, keeping her
from cross-examining the paid assassins, and preventing her from obtaining a jury trial.
Then, the prosecutors made sure that the MSU would continue the ruseat $651 per day,
this was also easily accomplished.
156. The prosecutors not only sent the four-page defamatory per se plan of
diagnoses and treatment to the MSU, but they had further contact with the MSU in order
to manipulate the findings, opinions, and conclusions to unlawfully and
unconstitutionally extend the commitment indefinitely without any semblance of due
lawyer can file pleadings. This is antithetical to the intent of the framers of the Texas Constitution,
especially with their choice of words in Art. I, § 10.
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process and in violation of the clear requirements of the Health and Safety Code, Title 7,
Subtitle C. On all objective tests concerning competency issues, BARNES made 100.
The first test was given on June 6, 2011 and repeated every month thereafter. BARNES'
competency teachers continuously advised that she was more than competent to stand
60
trial, to no avail
157. Towards the end of the 120 day commitment, when BARNES was
absolutely entitled to a jury determination, right to independent evaluation, right to be
present, right to confront and cross-examine, and the court is required to receive live
testimony and not just hearsay reports, the MSU attempted to coerce BARNES into
signing a waiver of these statutory and constitutional rights for the benefit of the
prosecutors. However, BARNES refused to sign the waiver. Instead BARNES filed with
the court, the prosecutor, and SCHREIBER, her insistence upon these rights,6' which
would be shown by the transcript of the September 1, 2011 "hearing" held in BARNES
absence despite the clear statutory and Constitutional requirements. BARNES was
60
Since March, 2012, BARNES is no longer even required to attend the competency classes, which are not
even taught by lawyers.
61
Prior to the "hearing" on September 1, 2011, which BARNES had no notice of, BARNES filed a written
"CONTiNUED iNSISTENCE UPON RIGHT TO APPEAR BY PROPOSED PATIENTI, the Defendant
in the above and numbered cause [l0-663-K368], hereby insist upon my right to appear, and request that,
by clear and convincing evidence, the court require competent medical or psychiatric testimony by
allowing an independent evaluation b y a forensic psychiatrist without a financial interest in the outcome,
as I am QI mentally ill or a person with mental retardation and I do NQI meet the criteria for Civil
Commitment: Charges Pending Under Code of Criminal Procedure, Article 46B, Subchapter E" and
BARNES incorporated all matters raised in the federal habeas corpus in Cause # 1:1 l-CV-4 14-LY and
Al l-CR-237--LY, with which the State had been previously served. BARNES also sent a written
"INSISTENCE UPON TRIAL BY JURY BY PROPOSED PATIENTI, the defendant in the above
numbered cause [10-663-K368], hereby insist upon trial by jury and request that by clear and convincing
evidence the court require competent medical or psychiatric testimony by allowing an independent
evaluation by a forensic psychiatrist without any financial interest in the outcome as I am QI mentally ill
or a person with mental retardation and I do NOT meet the criteria for Civil Commitment: Charges Pending
Under Code of Criminal Procedure, Article 46B, Subchapter E." BARNES also amended, deleted, and
marked through the paragraph entitled "Waiver of Jury Trial and Appearance by Attorney" so that the
court-appointed attorney could not waive any of BARNES' rights; and BARNES added "I hereby request a
court-appointed lawyer who is competent and ethical because Alan Schreiber is f and he has a conflict of
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lawfully entitled to appear at any hearing, receive a copy of the pleadings filed and order
entered, a jury trial, an independent forensic evaluation, cross-examine the witnesses and
evidence against her, and the discovery necessary to effectively cross-examine the
witnesses and evidence against her. SHAVER, MCCABE, BRADLEY, MCDONALD,
and SCHREIBER all failed and refused to provide BARNES with a copy of the pleadings
filed prior to September 1, 2011 to have her commitment extended, any evidence
presented in support thereof, any notice of any hearing thereon, or a copy of the Order
extending the commitment. BARNES was entitled to notice and copies of these
documents under the law of the case and pursuant to Texas Health and Safety Code, Title
7, Subtitle C. However, the due course of law and due process required for a Civil
Commitment pursuant to the Health and Safety Code, Title 7, Subtitle C were not met.
158. At the hearing on September 1, 2011, which was conducted without
BARNES being present, SCHREIBER not only violated the clear legal requirements of
the commitment statute, he failed to represent BARNES' interests as required by the
commitment statute. In fact, SCHREIBER made misrepresentations of material fact,
introduced hearsay, and violated his ethical obligations to BARNES. SCHREIBER
claimed that BARNES was "so mentally ill that bringing her back for a hearing would be
a complete waste of time." SCHREIBER had not seen or talked with BARNES in five
months. SCHREIBER did not fulfill his statutory duties under Texas Health and Safety
Code, Title 7, Subtitle C; so, SHAVER, BRADLEY, MCCABE, MCDONALD, and
SCHREIBER thumbed their noses at the statutory requirements to make these
proceedings legal and SCHREIBER and MCCABE made misrepresentations of material
interest;" and the "forced court-appointed attorney has no authority to waive y rights that belong to me.
CCP art. 46B was violated by denying me my right to due process and jury trial in May 2011."
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fact to the court that they had complied with the statutory duties and requirements. See
Texas Health and Safety Code, Title 7, Subtitle C, Chapter 574, Sec. 574.004 (b), (c), (d),
(e), and (f); Sec. 574.006(a); Sec. 574.007 (b)(5), (d); Sec. 574.0 10; Sec. 574.011(e),
(a)(6), (a)(7); Sec. 574.03 1 (c), (g); Sec. 574.032 (b), (c), (f); Sec. 574.035; Sec. 574.035
(g); and Sec. 574.036 (d). All of these sections of the Texas Health and Safety Code
were blatantly violatedas the record will prove. Therefore, any alleged commitment
order is void ab initio and BARNES' liberty interests are being violated and the writ of
right has been unconstitutionally suspended for over a year. The commitment orders
deprived BARNES of her fundamental liberty interest in freedom from forced pretrial
captivity because the hearsay documents were insufficient to justify depriving her of
substantive due process and due course of law under the Fourteenth Amendment to the
United States Constitution and Article 1, § 15-a, and 19 of the Texas Constitution. See
U.S. Const. amend. XIV, § 1; Tex. Const. art. I, § 19. Further, the court's application of
section 574.106 of the health and safety code and the refusal of SHAVER, MCCABE,
MCDONALD, and SCHREIBER to comply with the legal protections provided in
chapter 574 of the health and safety code deprived her of "equal protection and of
substantive due process." See U.S. Const. amend. XIV, § 1; Tex. Health & Safety Code
Ann. § 574 (West Supp. 2008). Based on the statute's text, CCP Art. 46B and Section
574 required a finding that BARNES presented a danger to herself or others before the
court was authorized to order the commitment. There was no clear and convincing
evidence that she presented a danger to herself or others because said Defendants can not
transform a mere accusation, which they subomed, into admissible evidence of an
undisputed fact. SHAVER, BRADLEY, MCCABE, MCDONALD, and SCHREIBER
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are jointly and severally liable for this atrocious violation of BARNES' procedural and
substantive due process rights, which are protected by the Constitutions and applicable
statute. No reasonable lawyer, including SHAVER, BRADLEY, MCCABE,
MCDONALD, and SCHREIBER would have believed that their actions did not violate a
clearly established and well-recognized constitutional right.
159. BARNES had an absolute constitutionally protected right to be present at
all hearings, discussions, or communications concerning her case. A proceeding in which
a person has the right to be present and participate and who was not permitted to, (either
due to a lack of a hearing, or discussions or hearing occurring outside their presence)
resulting in a court order, and who did not knowingly and intelligently waive that right to
be present and participate is void. A court which has both subject matter and personal
jurisdiction over a given case, but which performs an action outside of any legal or
judicial authority or contrary to the Constitution and laws of this State, acts beyond the
scope of the law and that ultra vires act cannot be recognized as a valid judicial act. The
law will not validate its existence or performance. It is, in hoary terms, a "void" act. Ex
Parte McCain v. State, 67 S.W.3d 204, 210 n. 16 (Tex.Crim.App. 2002); Stine v. State,
908 S.W.2d 429, 431 (Tex.Crim.App. 1995); Mireles v. Waco, 502 U.S. 9, 12 (1991) (per
curiam). Therefore, any orders entered contrary to the laws of this State are VOID ab
initio. BARNES continues in captivity pursuant to a void order; and Defendants know it
is a void order.
160. Further, the American Bar Association in the STANDARDS RELATING
TO COMPETENCE TO STAND TRIAL Section 7-4.2(e) (1989), the ABA has resolved
it to be improper to use competence procedures for purposes unrelated to the
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determination of competence, such as delaying the proceedings or punishing the accused
pretrial. These competency procedures are being abused in this case and being used for
an improper purpose to deprive BARNES of her freedom and right to due process, due
course of law, right to confront and cross-examine, right to a jury trial, and right to clear
her name. No reasonable lawyer, including SHAVER, BRADLEY, MCCABE,
MCDONALD, and SCHREIBER would believe that someone who has been practicing as
a criminal lawyer and trial lawyer for nearly 30 years is incompetent to stand trial, and
this was a criminal artifice to punish without due process.
161. Under the facts of this case, the court-appointed lawyer is a subterfuge,
which has allowed, aided, and abetted the malicious prosecution by denying BARNES
her constitutionally protected rights. BARNES did not ever request a court-appointed
attorney because she had co-counsel of her choice at all relevant times prior to the
unexpected breach of the surety bail bond contract62 on February 28, 2011. SCHREIBER
62
This unprecedented action of revoking a surety bail bond without due process, notice, hearing, or
evidence in support thereof violated Texas Constitution Article I, Section 9 that provides that the "people
shall be secure from all unreasonable seizures" as well as Texas Constitution Article I, Section 11 the
provides that "All prisoners shall be bailable by sufficient sureties" due to the malicious punishment for
BARNES' attempt to advocate and present her previously filed application for writ of habeas corpus
concerning the unlawful and unconstitutional impairment of the obligation of that surety bail bond contract.
Texas Constitution Article I, Section 27 clearly provides that the "citizens shall have the right to.. .apply to
those invested with the powers of govermnent for redress of grievances or other purposes, by petition,
address, or remonstrance" and that is exactly what BARNES was attempting to do when the "visiting
judge" lashed out without exhibiting any acceptable judicial temperament or judicial restraint and
punitively and oppressively sua sponte revoked the surety bail bond unlawfully and threw BARNES into
oppressive pretrial captivity in violation of Texas Constitution Article I, Section 11 b. BARNES did not
violate a condition of release and was entitled to a hearing on her application for writ of habeas corpus and
the "visiting judge" did not "determine by a preponderance of the evidence at a subsequent hearing that
BARNES violated a condition of release related to the safety of a victim of the alleged offense or to the
safety of the community," as required by Texas Constitution Article I, Section 11 b. The actions on
February 28, 2011 violated Texas Constitution Article I, Section 19, which provides that "No citizen of this
State shall be deprived of life, liberty, property, privileges or immunities, or in any maimer disfranchised,
except by the due course of the law of the land." Further, the attempted forced imposition of a leg iron
violated the laws of this State forbidding retaliation and punishment against citizens reporting crimes of the
governmental employees or other exercises of protected free speechTexas Constitution Article I, Section
1st
8, Amendment United States Constitution, and Texas Constitution Article I, Section 16 concerning the
impairment of the obligation of contracts. The courts are simply not at liberty to do what the Legislature
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was forced on BARNES in a pre-conceived plan to silence, gag, and suppress BARNES
and prevent her from discovering the clearly exculpatory evidence that the malicious
prosecutors had been ordered to produce on December 16, 2010exculpatory evidence
that BARNES had been requesting since the inception of this malicious prosecution.63
This subterfuge clearly violated United States Constitution Amends. V. VI, and XIV; and
Texas Constitution Article I, Section 10,9, 11, lib, 13, 15, 27, 28, and 29.
162. Courts in Texas have no inherent power to ignore an express constitutional
provision, express statutory provision, or the laws of this State. The courts of this State
are bound to follow the will of the people of this State, as that will is expressed by the
people in the Constitution and the laws enacted by their duly elected representatives.
Queen v. State, 842 S.W.2d 708, 711 (Tex.App.Houston [1st Dist.] 1992, no pet.). It is
unconstitutional for the courts to suspend the laws of this State. Texas Constitution
Article I, Section 28, 29.
163. The forced appointment of SCHRETBER is nothing less than a criminal
subterfuge to prevent BARNES from enjoying due process and the equal protection under
the law afforded by the United States Constitution64 and the due course of law guaranteed
has been enjoined from doing in the Texas Bill of Rights. Texas Constitution Article I, Sections 19, 27, 28,
and 29.
63
This evidence proves that not only is BARNES NOT guilty of this incredible charge, but that the
malicious prosecutors were involved in designing the malicious prosecution on Saturday, May 8, 2010 and
they knew from the exculpatory documents that they are refusing to produce that these charges were false,
fabricated, and concocted with a malicious intent to harm and injure BARNES irreparably.
64
The United States Supreme Court has repeatedly held that all accused persons are entitled to effective
assistance of counsel, which is a constitutionally guaranteed rights under the 6th Amendment. Under a long
line of cases, the facts of this case prove that BARNES' constitutional rights have been violated. United
States Constitution Amends. I, IV, V, VI, VIII, and XIV. The 6th amendment made applicable to the States
through the 14th amendment, provides that "[un all criminal prosecutions, the accused shall enjoy the
right.. .to have the assistance of counsel for the defence." The "vital" need for a lawyer's advice and aid
during the criminal process was recognized by the Court over 50 years ago in Powell v. Alabama, 287 U.S.
45, 57, 71(1932). In United States v. Wade, 388 U.S. at 226-227, the court stated "It is central to [the Sixth
Amendment] principle that in addition to counsel's presence at trial, the accused is guaranteed that he need
not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where
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by the Texas Constitutions. Even the clear terms of the Texas Health & Safety Code
requires that an attorney must follow the instructions of his client on the issue of court-
ordered treatment, regardless of the attorney's own position on the matter. TEX.
HEALTH & SAFETY CODE ANN. Section 574.004(c); Brian D. Shannon & Daniel H.
Benson, TEXAS CRIMINAL PROCEDURE AND THE OFFENDER WITH MENTAL
ILLNESS: AN ANALYSIS AND GUIDE (2' ed. 1999). On competency, the court must
provide a disinterested expert experienced and qualified in mental health to examine the
client. TEX. CODE OF CRIM. PROC. ART. 46.02 Section 3. BARNES had previously
filed her response both through her counsel of choice and pro se along with the reports of
Dr. John Breeding and Dr. Robert Cantu and SCHREIBER owed a fiduciary duty to
BARNES to utilize her retained experts and call them in her defense. STANDARDS
RELATING TO GENERAL PROFESSIONAL OBLIGATIONS TO DEFENDANT
WITH MENTAL ILLNESS Section 7-1.1(d) (1989).
164. Since TRAVIS COUNTY, SWAIM and ESCAMILLA were actively
conspiring with WILLIAMSON COUNTY, BRADLEY, MCCABE, MCDONALD, and
HOBBS, and were actually present in WILLIAMSON COUNTY on February 28, 2011,
when this malicious scheme was put in motion, it is apparently the intent of these
TRAVIS COUNTY and WILLIAMSON COUNTY prosecutors to dispense with the
necessity of a jury trial in these malicious and vindictive criminal cases because these
prosecutors know these are bogus, false, and groundless charges with concentric
counsel's absence might derogate from the accused's right to a fair trial." See also United States v. Henry,
447 U.S. 264 (1980); Massiah v. United States, 377 U.S. 201 (1964); White v. Maryland, 373 U.S. 59
(1963); Hamilton v. Alabama, 368 U.S. 52 (1961). BARNES has been deliberately, intentionally, and
knowingly deprived of her right to legal counsel and right to self-representation BOTH since February 28,
2011. A trial court simply cannot force a lawyer on the accused to silence the accused and deprive them of
their right to self-representation guaranteed under Texas Constitution, Article I, Section. 10.
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malicious prosecutions, and just summarily banish BARNES indefinitely in a mental
hospital by renewing these commitment orders annually for twenty years or longer.
165. In June 2011, while BARNES was being held in captivity in the MSU,
BARNES executed a lawful power of attorney appointing Dora Kuhn as her agent and
attorney in fact to conduct her business, collect her accounts receivable, secure and
protect her home and personal property, and transact banking business on her behalf
However, as a direct result of the criminal conspiracy, she was threatened with criminal
charges and hauled into probate court by Judge McMaster, who is the Judge that
RUPPART works for, when Judge McMaster entered an exparte injunction enjoining her
from taking any action under her lawful power of attorney. There was no evidence
whatsoever to support this order that tortiously interfered with BARNES' constitutional
rights and contractual agreements. This action by the WILLIAMSON COUNTY courts
was part and parcel to the advancement of the criminal conspiracy because it blocked
BARNES' access to her funds, property, and assets, and caused the direct loss,
destruction, dissipation, and theft of over $300,000.00 in real and personal property and
the loss of over $150,000.00 in collectible accounts receivable. BARNES was
unconstitutionally prevented from securing and protecting her home and assets by the
WILLIAMSON COUNTY courts through a direct interference with her contracts.
BARNES residence has been repeatedly burglarized, vandalized, and stripped, and
BARNES is left without any recourse because as is the habit, practice, and custom of
WILLIAMSON COUNTY, they will make no effort whatsoever to recover the assets or
prosecute the culprits.
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166. At the MSU, BARNES was violently assaulted over a dozen times, had her
hair pulled out by handfuls at least five times, and suffered permanent disfigurement of
her face, permanent nerve damage, and other injuries, along with extreme emotional
distress, and mental anguish. These were all foreseeable consequences of the actions of
TRAVIS COUNTY and WILLIAMSON COUNTY and their malicious prosecutors,
SWAIM, ESCAMILLA, BRADLEY, MCCABE, MCDONALD, HOBBS, and RYE with
the aid and assistance of SHAVER and SCHREIBERboth hand-picked by
WILLIAMSON COUNTY, CARNES, ANDERSON, BRADLEY, MCCABE,
MCDONALD, HOBBS, and RYE as is the habit, practice, and custom of
WILLIAMSON COUNTY and TRAVIS COUNTY on politically charged cases or cases
where the county has incurred liability for the bad acts of its employees, agents,
representatives, or prosecutors.
167. Only a federal court can protect BARNES and provide the guarantees
protected by the United States Constitution because WILLIAMSON COUNTY and its
prosecutors control the "visiting" judge and there is no check or balance because
WILLIAMSON COUNTY and its prosecutors also selected the defense attorney.
WILLIAMSON COUNTY and its prosecutors selected the court to file this in, and (with
the aid and assistance of CARNES who eventually recused himself, but not until after the
damage had been done), selected the foreman of the grand jury (a political ally), the
"visiting" judge assigned to hear this case, and the defense counsel; then, manipulated
them all to send BARNES to the MSU for a chemical lobotomy and banishment. These
state actors obstructed justice and outlawed BARNES with the malicious intent to cause
permanent, irreversible, and irreparable harm.
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168. After violating BARNES' constitutional rights to due process, due course
of law, equal protection, and to a examining trial, speedy trial, fair and impartial tribunal,
and right to pretrial bail, WILLIAMSON COUNTY violated her right to a hearing on a
writ of habeas corpus and illegally, unlawfully, and unconstitutionally held BARNES in
either Solitary Confinement with a Level One Classification or in the MSU or state
hospital for the criminally insane. At all relevant times, BARNES has been held in harsh,
punitive, and hostile conditions, and deprived of due process; her right to represent
herself or to appear through counsel or both; her right to pre-trial bail; her right to an
examining trial; her right to a jury determination on competency as provided under Texas
Code of Criminal Procedure article 46B; her rights to due process and due course of law
prior to the commitment order pursuant to Health and Safety Code Title 7, Subtitle C; her
right to effective assistance of counsel; her right to a fair and impartial tribunal; her right
to a speedy trial; and her right to equal protection under the law.
169. BARNES has repeatedly sought habeas corpus relief, which is more fully
set forth at length in the action in this federal district court under Cause No. A-I 1-CA-
414-LY and Case number 11-50764 filed in the Fifth Circuit, and in the Texas Court of
Criminal Appeals under Cause No. 75,685-02, Case number 03-12-00073-CV and Case
number 03-11-00647-CR filed in the Third Court of Appeals, which pleadings are all
incorporated herein by reference the same as if set forth at length. At all relevant times,
the clerk and court reporter have failed and refused to prepare and file the record for the
reviewing courts. BARNES has a right to be free from incarceration and commitments
that violate State statutes and the State Constitution, and this is a protected Liberty
interest. Therefore, these pretrial sentences and commitment orders should have been
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vacated because they violate United States Constitution Amends 4, 8, and 14. Hamilton
v. Freeman, No. COAOO-1470, 554 S.E.2d 856 (N.C. App. 2001) no writ. BARNES
continues to seek habeas corpus relief from this unconstitutional punishment.
170. No reasonable lawyer or judge could have believed in good faith that
BARNES was incompetent to stand trial, and this was a clear malicious abuse of process
under C.C.P. art. 46B65 as a matter of law. CARNES, SHAVER, BRADLEY,
ANDERSON, MCCABE, MCDONALD, HOBBS, RYE, BROOKS, WCSD, WILSON,
BR1NKMANN, BARTZ, DE LA VEGA, BOGAN, FOSTER, HUGHEY, WAGGONER,
NEWELL, HERNANEZ, RICHTER, TRAVIS, SCHEFFLER, SWAIM, ESCAMILLA,
MORGAN, TUML1NSON, KLEKAR, LERMA, COTTON, and others employed by
WILLIAMSON COUNTY and TRAVIS COUNTY sought the destruction of BARNES'
reputation and career simply because she zealously represented her clients and exposed
the short-cuts, dishonesty, and fabrications by certain law enforcement personnel and
certain prosecutors. These Defendants at all times allowed their hate and animosity to
override reasonableness, sound judgment, and good sense. Immunity should never be
used as an offensive weapon to knowingly, deliberately, intentionally, and with
malice violate the civil and constitutional rights of any citizen.
171. No one involved in any stage of these proceedings has clean hands and
they have all entered into a criminal conspiracy with utmost malice with the intent to
retaliate, obstruct justice, and harm, injure, and damage BARNES and her family and
deprive her of a right to earn a livelihood. They fuliy intend to continue along this
criminal course of conduct indefinitely as they have done for the past two years because
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they have repeatedly retaliated against BARNES for 15 years without ever being held
accountable. The habit and custom has been well established and is well known.
172. Under the Texas Tort Claims Act, WILLIAMSON COUNTY and
TRAVIS COUNTY could not have accomplished the desired objective or their agreed
upon goals without the use of state owned instrumentality; to-wit: the jails; marked
patrol cars and county owned truck; guns; rifle scope; bullet proof or hard vest; shackles;
handcuffs; leather restraint belt with cuffs aftached; criminal tag; leg iron; electronic
monitoring with harmful electromagnetic frequencies; restraint jacket; hard straight board
with restraints; neck brace; tow truck on June 1, 2011; audio and video equipment during
July 2010 arrest, in jail, and in court; audio-video recording equipment; unhealthy "food"
in jail; rubber stamp of official signatures; notary seal; driver's license and arrest photos;
hard neck brace; cameras; MSU, restraint chair; hypodermic needles; psychoactive,
neuroleptic, and anti-psychotic drugs; state mental hospital; and fraudulent billing.
173. Since WILLIAMSON COUNTY, WCSD, TRAVIS COUNTY, TCSD,
WILSON, HAMILTON, and the deputies and prosecutors have a policy, practice, and
custom of over-charging certain people with felonies and allowing the prosecutor or jury
to find the lesser and included offense, this violates equal protection, equal treatment, due
process, and due course of law. These policies, practices, and customs are designed to
circumvent the intention of United States Constitution Amendments IV, V, VI, VIII, and
XIV, as well as violated 42 U.S.C. Section 1983 and 1985, and 18 U.S.C. Sections 241
and 242.
174. The law has been clear since 2000, that it is a constitutional violation to
65
Statutes are given a construction consistent with constitutional requirements when possible because the
legislature is presumed to have intended compliance with the constitution. See Brady v. Fourteenth Court
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conspire to manufacture or fabricate false evidence against a citizen of the United States.
Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000).66 The fabrication of evidence and the
suppression or destruction of exculpatory evidence by a prosecutor with the intent to
obtain an indictment and maliciously and vindictively prosecute an officer of the court
critical of the habitual and corrupt practices of the prosecutors to obtain convictions or to
injure and oppress opponents gives rise to an injury cognizable under the Constitution.
The obstruction of justice and manipulation of the grand jury process by a prosecutor
with the intent to prevent oversight, fairness, and protection for the citizens gives rise to
an injury cognizable under the Constitution. The prosecutors, SWAIM, MCCABE,
MCDONALD, BRADLEY, HOBBS, RYE, and former prosecutors and judges,
ANDERSON, BROOKS, CARNES, SHAVER, as well as corrupt law enforcement
officers, including but not limited to, TUMLINSON, BRINKMANN, DE LA VEGA, and
LERMA, all conspired together to create and precipitate the sequence of events that
resulted in a deprivation of BARNES' liberty, loss of familial relationships, loss of
privacy, loss of property, loss of reputation, and loss of business and income.
175. Further, Defendants created a new legal regime67 that stacks the
procedural rules in favor of the prosecution, destroys presumptions in favor of the
ofAppeals, 795 S.W.2d 712, 715 (Tex.1990).
66
"We thinlc the right at issue in this case is appropriately identified as the right not to be deprived of
liberty as a result of the fabrication of evidence by a government officer acting in an investigating capacity.
Understood this way, we conclude that the right at issue is a constitutional right, provided that the
deprivation of liberty of which Zahrey complains can be shown to be the result of Coffey's fabrication of
evidence." Coffey conceded that the alleged misconduct concerning his fabrication of evidence entitled
him, at most, only to qualified immunity. See Brief for Appellee at 8. In the case at bar, the deprivation of
liberty was based on a false probable cause affidavit, suborned perjury, and gross violations of procedural
and substantive due process, due course of law, and equal protection under the law.
67
With the malicious abuse of process pursuant to a deliberate and dishonest misuse of Tex. C.C.P. art.
46B and Tex. Health & Safety Code, Title 7, Subtitle C, in violation of Texas Constitution, Art. I, § § 9, 13,
13, 14, 15, 15-a, 19, 27, 28, and 29; as well as United States Constitution Amends 4, 8, and 14, these
malicious prosecutors can protect and cover-up for their overly zealous or wayward law enforcers and
investigatorsoften trained, coached, and taught by the same malicious prosecutors. If a lawyer works to
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accused, permits long-term detention without trial, (because fair trials are too risky when
charges are false and fabricated), and "suspects" who they deem "incompetent" and
"DANGEROUS" can not be released under any circumstancesunless they are first
discredited, branded with a mental illness stigma, subjected to "FORCED
MEDICATION" resulting in a chemical lobotomy and chemical restraints, and
brainwashed and coerced into pleading guilty and doing exactly what the court-appointed
attorney says to do. This is how torture can contaminate a legal systemhow a single
moral catastrophe can multiply into a chain of corrupting policies and practices. There is
only one way to break that chain of corrupt practices: to enforce the law and honor,
protect, and defend the Constitutions.
176. The retaliation against Plaintiffs by Defendants resulted from a policy,
practice, or custom of the governmental agencies and media culture in TRAVIS
COUNTY and WILLIAMSON COUNTY, Texas. TRAVIS COUNTY and
WILLIAMSON COUNTY knew that the AUSTIN AMERICAN STATESMAN, KXAN,
KEYE, and KVUE would print and publish the false and fraudulent probable cause
affidavits as a press release and that they would be published nationally and picked up on
the AP network and permanently published on the Internet. TRAVIS COUNTY and
WILLIAMSON COUNTY knew that it was the habit, practice, and custom of its law
enforcement personnel and attorneys to fashion the probable cause affidavits to
sensationalize the allegations for the benefit of the State and to inflame, prejudice, and
pollute the potential jury pool in violation of the Constitutional rights of the accused.
combat these corrupt practices, the corrupted legal regime can handily dispose of any opposition, especially
with the malicious abuse of the "visiting judge" system where the prosecutors and biased recused judge can
hand-picked a "visiting" stand-in puppet to give the appearance of fairness and due process. Pretextual
procedural due process does not equal substantive due process.
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TRAVIS COUNTY and WILLIAMSON COUNTY also knew of the habit, practice, and
custom of the AUSTIN AMERICAN STATESMAN, KXAN, KVUE, and KEYE not to
further investigate the sensationalized allegations, but to publish them verbatim as a
matter of routine; thereby completely depriving the accused to any semblance of a
presumption of innocence and to specifically discredit the accused in the media while
holding the accused in jail, which completely destroys any hope of a fair trial or impartial
jury. WILLIAMSON COUNTY and TRAVIS COUNTY also knew that these media
defendants would permit coconspirators and BARNES' competitors to make defamatory
per se comments against her with complete anonymity to bolster their fraudulent case.
This is the habit, practice, custom, policy and procedure of WILLIAMSON COUNTY
and TRAVIS COUNTY in order to ensure the continued suppression and cover-up of
illegal activity, criminal activity, and gross civil rights' violations by its elected officials,
agents, employees, representatives, law enforcement personnel, and attorneys.
177. WILLIAMSON COUNTY and TRAVIS COUNTY, WILSON, WCSD,
HAMILTON, TCSD, and others have exhibited a reckless disregard for the rights, safety,
and welfare of the citizens of this State by allowing the continuing and long-standing
dishonest, unethical, and unconstitutional activity to the point that it has become an
ingrained approach to the citizens as a standard accepted habit, practice, custom, policy,
or procedure.
178. BARNES is informed and believes, and thereupon alleges that in
committing said acts and/or omissions, the individual Defendants were the agents and/or
employees of a govermnental entity, and although acting in their individual capacities
and for their own individual benefit and gratification, were using, abusing, and taking
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advantage of a cloaking device and mechanism, emollients of office, special privileges of
office, and benefits/protections secured under color of state law.68 These individual
Defendants could not have obtained their result and personal benefit and gratification but
for the abuse of governmental position and office.
179. Moreover, the acts of the individual Defendants amount to an excessive
and/or unnecessary use of force. Said excessive/unnecessary use of force is objectively
unreasonable as no reasonable deputy and/or law enforcement officer given the same or
similar circumstances would have initiated such a brutal and life threatening attack on
any person in the position of BARNES, for no lawful reason. Any use of force that is not
authorized by law is excessive. TUML1NSON and the UNIDENTIFIED THREE at the
TRAVIS COUNTY Jail used excessive force against BARNES. The WILLIAMSON
COUNTY Defendants, BRINKMANN, DE LA VEGA, FOSTER, RICHTER, TRAVIS,
HERNANDEZ, WAGGONER, HUGHEY, BOGAN, FOSTER, NEWELL, BARTZ,
MCDONALD, MCCABE, BRADLEY, and SCHEFFLER conspired to intimidate and
threaten BARNES with the use of deadly force by surrounding her home and crouching
down with loaded guns aimed at her while peering in her windows, and with a search
helicopter, without a warrant or legitimate probable cause. Defendant RUPPART used
excessive force on BARNES at the courthouse on June 28, 2010, by running into her
from behind in an effort to intimidate her, then by forcefully striking her twice in the
chest with the heel of his hand, then making a false arrest and attempting to instigate
another malicious prosecution on other felony assault charges.
68
The traditional definition of acting under the color of state law requires that the defendant have exercised
power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the
authority of state law," and such actions may result in liability even if the defendant abuses the position
given to him by the state.
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180. Defendants, ANDERSON, CARNES, BROOKS, BRINKMANN, DE LA
VEGA, FOSTER, RICHTER, TRAVIS, HERNANDEZ, WAGGONER, HUGHEY,
BOGAN, FOSTER, NEWELL, BARTZ, MCDONALD, MCCABE, BRADLEY, and
SCHEFFLER then conspired to humiliate, demean, dehumanize, and to physically assault
BARNES in order to retaliate against her, and this was done by the WILLIAMSON
COUNTY deputies and employees, acting in concert with SWAIM, ESCAMILLA,
MORGAN, TUMLINSON, and the TRAVIS COUNTY employees and deputies, with
utmost malice and all of these Defendants acted with utmost malice in using unnecessary
force and excessive force in assaulting BARNES. Furthermore, said excessive force
committed against BARNES by said Defendants was not performed in good faith to
maintain or restore order, but was performed maliciously, intentionally, and sadistically
for the very purpose of punishing and causing harm to BARNES, rather than utilize the
proper judicial process. At all pertinent times, WILLIAMSON COUNTY, TRAVIS
COUNTY, WCSD, TCSD, WILSON, and HAMILTON authorized or ratified the
wrongful and tortuous acts andlor omissions of its deputies, officer, investigators, and
employees.
FIRST CLAIM FOR RELIEF - - 1983 AND 1985
1. The allegations contained in Paragraphs 1 through 180 of Section IV are
herein incorporated by reference, the same as if fully set forth verbatim for any and all
purposes of this pleading. Exhaustion of administrative and judicial state remedies is not
a prerequisite to a section 1983 action.
2. Section 1983. The Civil Rights Act of 1871 (Ku Klux Klan Act), now
codified as 42 U.S.C.S. § 1983 as federal law provides: "Every person who, under color
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of any statute, ordinance, regulation, custom or usage, of any state or territory of the
District of Columbia, subjects, or causes to be subjected, any citizen of the United States
or any other person within the jurisdiction thereof to the deprivation of any rights,
privileges or immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for redress." 42
U.S.C.S. § 1983. WILLIAMSON COUNTY, its prosecutors, and WCSD have all of the
vestiges of the Ku Klux Klan and its elected officials have adopted the same manner and
mode of operation.69
3. The state action requirement for standing under 42 U.S.C.S. § 1983 has
more commonly been referred to as "color of state law,"7° from the statute itself.
Plaintiffs are informed and believe, and thereupon allege that in committing said acts
andlor omissions, each Defendant was the co-conspirator with a common interest, goal,
and understanding, agent and employee of each other Defendant and was acting within
such agency and employment and that each Defendant was acting under color of state
law, as more fully set forth hereinabove.
4. 42 U.S.C.S. § 1983 requires that the conduct complained of must have
deprived the person of some privilege or immunity secured by the Constitution or laws of
the United States. As such, Plaintiffs allege that the governmental Defendants,71 jointly
69
See, Mitchum v. Foster, 225, 242 (1972) ("The very purpose of § 1983 was to mterpose the federal courts
between the States and the people, as guardians of the people's federal rights.").
70
The traditional definition of acting under the color of state law requires that the defendant have exercised
power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the
authority of state law," and such actions may result in liability even if the defendant abuses the position
given to him by the state.
71
Defendants in section 1983 cases are liable for consequences caused by "reasonably foreseeable
intervening forces," Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561 (1st Cir. 1989) because these
consequences are reasonably foreseeable, if caused by pressure or misleading information provided by the
actor whom the plaintiff seeks to hold liable in a section 1983 action. See Townes, 176 F.3d at 147
(intervening exercise of independent judgment breaks chain of causation "in the absence of evidence that
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and severally, deprived BARNES of her First, Fourth, and Fourteenth Amendment rights
and those rights, privileges, and immunities secured by the First, Fourth, Fifth Sixth, and
Eighth Amendments to the Constitution incorporated and applied to the states through the
Fourteenth Amendment. Defendants violated Section 1983 by the following actions,
inter alia, and/or omissions:
a) by detaining and falsely arresting BARNES in violation of her Fourth
Amendment expectation of privacy and guarantee to security from
unreasonable search and seizure without reasonable suspicion and/or
probable cause;
b) by falsely and maliciously charging BARNES with the commission of
crimes where the truthful facts did not support the crime charged, and
without probable cause to believe that such crimes had occurred and on
the police officer misled or pressured the official who could be expected to exercise independent
judgment"); Robinson v. Maruffi, 895 F.2d 649, 655-56 (10th Cir.1990); Borunda v. Richmond, 885 F.2d
1384, 1390 (9th Cir. 1989); Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir.1988) ("[A] prosecutor's
decision to charge, a grand jury's decision to indict, a prosecutor's decision not to drop charges but to
proceed to trialnone of these decisions will shield a police officer who deliberately supplied misleading
information that influenced that decision."); Hand, 838 F.2d at 1428; Smiddy, 665 F.2d at 266-67; Dellums
v. Powell, 566 F.2d 167, 192-93 (D.C.Cir.1977); see also Barts, 865 F.2d at 1197 (intervening acts break
chain of causation "in the absence of a showing that the police officers deceived the court officials or
unduly pressured them or that the court officials themselves acted with malice and the police joined with
them"); Lanier v. Sallas, 777 F.2d 321, 325 (5th Cir.1985) (county court's order committing plaintiff to
mental institution did not break chain of causation between doctors' false statements in their certificates of
medical examination and the commitment, because the certificates' "falsity as to material facts . . . caused
[the judge] to issue the order"); cf Myers v. County of Orange, 157 F.3d 66, 74 (2d Cir. 1998) (since district
attorney's office policy regarding cross-complaints had an impact on the district attorney's "ability to make
an independent prosecutorial decision," his decision to prosecute did not break causal chain between that
policy and the plaintiffs injuries). Even if the intervening decision-maker (such as a prosecutor, grand jury,
or judge) is not misled or coerced, it is not readily apparent why the chain of causation should be
considered broken where the initial wrongdoer can reasonably foresee that his misconduct will contribute
to an "independent" decision that results in a deprivation of liberty. The Supreme Court has ruled that a
judge's decision to issue an arrest warrant did not break the causal chain between the act of a police officer
who submitted an affidavit and the arrest where "a reasonably well-trained officer in [the same] position
would have known that his affidavit failed to establish probable cause." Malley, 475 U.S. at 345, 106 S. Ct.
1092. Applying Malley, we have ruled that the decision of a sentencing judge does not break the causal
chain between the wrongful recommendation of a probation officer and an unconstitutional sentence. See
Warner v. Orange County Dep 't of Probation, 115 F.3d 1068, 1071 (2d Cir. 1997), reinstated after opinion
vacated, 173 F.3d 120, 121 (2d Cir.1999); see also Wagenmann v. Adams, 829 F.2d 196, 212-13 (1st
Cir. 1987) (decision of court clerk acting as bail commissioner in setting bail did not insulate police officer
from liability for violating plaintiffs right to be free from excessive bail). We have also sustained a claim
against a police officer, despite the subsequent actions of a prosecutor and a grand jury. See White v. Frank,
855 F.2d 956, 962 (2d Cir.1988) ("As with the grand jury, ... the public prosecutor's role in a criminal
prosecution will not necessarily shield a complaining witness from subsequent civil liability where the
witness's testimony is knowingly and maliciously false.").
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the sole basis of malice, hatred andlor anger;
c) by engaging in a deliberate misuse or malicious abuse of the criminal
process by public officials, including but not limited to, the malicious
abuse of T.C.C.P. art. 46B and Texas Health and Safety Code, Title 7,
Subtitle C;
d) by failing to intervene, where such intervention would have prevented the
violations and/or damages of BARNES;
e) by engaging in aggravated perjury and fabrication of evidence and
tampering with the grand jury process to secure an indictment and
vindictively prosecute BARNES;
f) by causing punitive delays in the prosecutions of these malicious criminal
charges in order to maximize the damage to Plaintiffs, obstruct justice and
BARNES' ability to clear her name, and cause substantial prejudice to
BARNES' rights to a fair and speedy trial, and that cruel delay was a
purposeful device to gain tactical advantages over BARNES;72
g) by committing aggravated perjury in an effort to secure a conviction
against BARNES while taking no action against the real perpetrators of
the crime;
h) by causing defamatory per se statements to be published in the national
media, business and trade journals, and permanently on the Internet; and
i) by maliciously abusing process to deprive BARNES of due process, due
course of law, equal protection, pretrial liberty, speedy trial, and a fair
jury; and to impose punitive indefinite pretrial banishment and captivity.
5. 1-JAMILTON had authority to establish county policy as to the training
and qualification of the deputies in TRAVIS COUNTY. The Commissioners Court had
delegated that authority to the sheriff by acquiescing in HAMILTON's hiring and
training policies. HAMILTON had an official policy or custom of providing inadequate
72
Justice Douglas in his separate opinion in United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, quoted
Justice Brennan's discussion on the question of what constitutes reasonable governmental delay: Clearly a
deliberate attempt by the government to use delay to harm the accused, or governmental delay that is
"purposeful or oppressive" is unjustifiable. The same may be true of any governmental delay that is
unnecessary, whether intentional or negligent in origin. A negligent failure by the government to ensure a
speedy trial is virtually as damaging to the interest protected by the right as an intentional failure; when
negligence is the cause the only interest necessarily unaffected is our common concern to prevent deliberate
misuse of the criminal process by public officials.
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training to his deputies.
6. ESCAMILLA and SWAIM had authority to establish county policy as to
the training and qualification of prosecutors in TRAVIS COUNTY. The Commissioners
Court had delegated that authority to the TRAVIS COUNTY Attorney and Special
Prosecutor for TRAVIS COUNTY by acquiescing in ESCAMILLA's and SWAIM's
hiring and training policies. ESCAMILLA and SWAIM had an official policy or custom
of providing inadequate training to these prosecutors.
7. GUERRERO and MORGAN had authority to establish county policy as to
the training and qualification of employees in TRAVIS COUNTY Pretrial Services. The
Commissioners Court had delegated that authority to GUERRERO and MORGAN by
acquiescing in GUERRERO's and MORGAN's hiring and training policies.
GUERRERO and MORGAN had an official policy or custom of proving inadequate
training to these employees.
8. WILSON had authority to establish county policy as to the training and
qualification of the deputies in WILLIAMSON COUNTY. The Commissioners Court
had delegated that authority to WILSON by acquiescing in WILSON's hiring and
training policies. WILSON had an official policy or custom of providing inadequate
training to his deputies.
9. HOBBS and RYE had authority to establish county policy as to the
training and qualification of the prosecutors in WILLIAMSON COUNTY. The
Commissioners Court had delegated that authority to HOBBS and RYE by acquiescing in
HOBBS' and RYE's hiring and training policies. HOBBS and RYE had an official
policy or custom of providing inadequate training to these prosecutors.
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10. BRADLEY had authority to establish county policy as to the training and
qualification of the prosecutors in WILLIAMSON COUNTY. The Commissioners Court
had delegated that authority to BRADLEY by acquiescing in BRADLEY's hiring and
training policies. BRADLEY had an official policy or custom of providing inadequate
training to these prosecutors.
11. SWAIM, ESCAMILLA, BRADLEY, MCCABE, MCDONALD, and
HOBBS charged BARNES with crimes she did not commit. SWAIM and ESCAMILLA
charged BARNES with "interference with the duties of a public servant" over six months
after the false arrest of BARNES by TUMLTNSON and several months after they had
already received BARNES' notice of legal claims for false arrest, false imprisonment,
and violation of constitutional rights and resisted BARNES efforts to conduct discovery
by writing letters to the Attorney General on behalf of TRAVIS COUNTY to block
discovery of the exculpatory evidence. SWAIM and ESCAMILLA knew that BARNES
had not engaged in any conduct that "interfered" with TUMLINSON's duties because it
was not his duty to keep BARNES or anyone else from using their cell phone at the
entrance to the courthouse. Further, BRADLEY, MCCABE, and MCDONALD knew
that the initial allegations made by GITTEL prior to the coaching and manipulation by
the WCSD and prosecutors, did not constitute a felony, therefore, they fabricated
jurisdiction in the district court to gain control over the malicious prosecution. They did
this solely because BARNES was involved. HOBBS, the malicious prosecutor who has
vindictively prosecuted BARNES for years and who immediately defamed BARNES in
the media, had no good faith basis for charging BARNES with filing a false police report
or any other charge arising out of BARNES' blocked attempt to get a police report for the
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safe company and insurance company, thereby preventing the necessary repairs to the
safe and residence as a result of the criminal activity of the WCSD deputies and
prosecutors. If the court considers the elements required in the relevant statutes, the
truthful facts do not authorize prosecution for the conduct.
12. These officials and the employees they hired, trained, and supervised were
responsible for the damages, losses, and injuries sustained by Plaintiffs due to the
constitutional violations set forth herein. The actions taken by said Defendants were the
proximate cause of the injury, damage, and loss sustained by Plaintiffs. The employees,
deputies, and prosecutors were grossly negligent; and their gross negligence was the
proximate cause of the injuries, damages, and losses sustained by Plaintiffs. This type of
serious incompetence or misbehavior was general or widespread throughout these
respective counties due to the in-house training conducted by the WCSD and the
monopoly established by ANDERSON and BRADLEY to educate, train, and guide
prosecutors within the criminal law arena. Such incompetence or misbehavior was
known by these respective counties due to years of citizen complaints and good faith
investigations by the Citizen Review Committee in TRAVIS COUNTY, as well as
numerous lawsuits, which brought the official misconduct, incompetence, and abuse to
the attention of the Commissioner's Court. In fact, the prior lawsuits made the
WILLIAMSON COUNTY Commissioner's Court intimately knowledgeable of the habit,
practice, custom, policy, and procedure of the deputies, prosecutors, and employees, as
well as the malicious prosecutions, false arrests, retaliation, harassment, and conspiracy
against BARNES, which has continued unabated, and has escalated, for fifteen years.
With that intimate knowledge, at no time did the WILLIAMSON COUNTY
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Commissioner's Court take any corrective or preventative action to cease and desist or
prevent further harm, injury, and damage to Plaintiffs. WILLIAMSON COUNTY has
demonstrated a callous disregard and conscious indifference to the rights, safety, and
welfare of Plaintiffs in this regard. HAMILTON, WILSON, ANDERSON, CARNES,
BRADLEY, HOBBS, RYE, ESCAMILLA, SWAIM, GUERRERO, and MORGAN were
the final authority in their respective counties on the selection, training, and activities of
the county employees, deputies, and prosecutors and had policy-making powers in their
respective county. These policies, and habits of serious incompetency, misbehavior, and
official misconduct, were of long standing duration and were well known to the
Commissioners Court, which had an official policy or custom of blindly delegating
authority to these policy-makers who were known to be providing inadequate training to
deputies, employees, and prosecutors in these respective counties; and this official policy
or custom constituted gross negligence and was the moving force behind and the
proximate cause of the incidents which form the basis of this complaint. Plaintiffs were
damaged in excess of $7,000,000.00. These officials should have posted performance
bonds as required by law to ensure faithful performance of their public duties, but
BARNES has received no evidence of the existence of these bonds.
13. Further, article five, section 24, of the Texas Constitution provides for the
removal of county officers: "County Judges, county attorneys, clerks of the District and
County Courts, justices of the peace, constables, and other county officers, may be
removed by the Judges of the District Courts for incompetency, official misconduct,
habitual drunkenness, or other causes defined by law...." For decades CARNES and
ANDERSON had not only neglected their duties in this regard, they have actively
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encouraged and rewarded such misbehavior, incompetency, and official misconduct.
ANDERSON himself is the direct predecessor of BRADLEY and hired and trained
BRADLEY. BRADLEY, MCCABE, MCDONALD, RYE and HOBBS have actively
trained the WCSD deputies, as well. MCDONALD, individually and on behalf of
BRADLEY and MCCABE, actually met with the WCSD deputies on Saturday, May 8,
2010 and planned the malicious prosecution of BARNES, gave legal advice to the
deputies, and directed and participated in the "investigation" and tampering with the
witness and governmental records.73 RYE and HOBBS have been employed by the
WILLIAMSON COUNTY Attorney's Office for years and were there when Eugene
Taylor was the County Attorney and they stayed on when Jana Duty was elected;
knowing that Jana Duty would continue to delegate her authority to them.
14. These claims involve Violations of State and Federal Substantive Due
Process and Due Course ofLaw (42 U S.C. section 1983 ) because of the unlawful use of
police power, and the "arbitrary, punitive and disparate" use and abuse of process; and
Violations of State and Federal Equal Protection (42 U S.C. section 1983 ) because of
the " wrongful and punitive enforcement" of the laws, the trespassing onto and into
BARNES' properties, unlawful use of police power, and the "arbitrary, punitive and
disparate" use and abuse of process, including charging crimes that were not committed
and forcing BARNES into pretrial captivity under C.C.P. art. 46B and violation of Texas
Health and Safety Code, Title 7, Subtitle C.
15. A complaint states a valid 42 U.S.C. § 1983 claim if it alleges a denial,
under color of state law, of a right, privilege, or immunity secured by the Constitution
See, See Pembaur v. Guy of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986); Burns v.
Reed, 500 U. S. 478, 492-96 (1991); Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
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and laws of the United States. The following rights were denied under color of state law,
protected by the Constitutions of the United States and Texas, and clearly and firmly
established and well-recognized at the time of the incidents that form the basis of this
complaint:
(1) equal protection under the laws,
(2) procedural and substantive due process and due course of law,
reasonable pre-trial bail (and to be free of the unilateral breach of a surety bail
(3)
bond contract by the State),
(4) an examining trial (full Franks hearing),
(5) due process and fairness in the pre-indictment, investigation, warrant, and
grand jury procedures,
(6) a public jury trial before a fair and impartial jury,
(7) a speedy trial and fair ability to timely and meaningfully present defense,
presumption of innocence (and freedom from the use of false probable cause
(8)
affidavits as press releases to manipulate the media, and substantially impair and abridge
the rights and privileges protected by Texas Constitution Art. I, §3, 3a, 8, 9, 10, 11, 1 ib,
12, 13, 14, 15, 15-a, 16, 19, 20, 23, 27, 28, and 29),
(9) timely and meaningful discovery to adequately prepare the defense,
(10) preservation and timely disclosure of exculpatory evidence,
(11) confront and cross-examine the evidence and witnesses against one,
(12) have compulsory process for obtaining witnesses and evidence in one's
favor,
represent one's self (and be free from having a court-appointed attorney
(13)
forced on you under false or fraudulent pretenses), and of being heard by himself or
counsel, or both,
(14) practice one's livelihood, earn a living, support one's children, and practice
law free from retaliation,
(15) assistance of competent and ethical counsel to present your own defense (and
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to be free from having case and defense hijacked by court appointed counsel),
(16) notice of, appearance at, and participation in a hearing before entry of
detrimental orders,
(17) privacy,
(18) be left alone,
(19) be secure in person, papers, home, and effects against unreasonable searches
and seizures,
(20) be free from Warrants being issued without probable cause, or based upon
false swearing or issued by a magistrate who is not neutral and detached,
(21) be free from being twice put in jeopardy, punished, or subjected to multiple
arrests for the same offense,
(22) be free of being compelled to be a witness against oneself,
(23) familial relationships (loss of consortium, support, companionship, comfort,
care, and solace),
(24) free speech, beliefs, ideas, opinions, and associations,
(25) petition the government for a redress of grievances,
(26) be free of oppression, retaliation, and harm from governmental employees,
and right not to be framed,
(27) be free from selective, retaliatory, malicious and vindictive prosecutions,
(28) be protected from defamation per Se,
(29) keep and bear arms,
(30) be free from excessive, oppressive, or multiple bail,
(31) be free from cruel and unusual punishment,
(32) be free from unreasonable searches and seizures, the use of Tex. C.C.P. art.
46B as a sham for punishment, and cruel and unusual punishment due to a denial of equal
protection, procedural and substantive due process, and due course of law set forth in
Tex. C.C.P. art. 46B and Tex. Health & Safety Code, Title 7, Subtitle C, Chapters 571
and 574,
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(33) have the same standard applied to BARNES that is applied to all other
accused individuals under Tex. C.C.P. art. 46B in determining "incompetence to stand
trial,"
(34) be free from "sanity" exams when BARNES has not ever raised a sanity
defense, (this was the malicious prosecutors' motive theory from the inception, not
BARNES defense),
(35) be free from indefinite pre-trial captivity without any semblance of
procedural or substantive due process or due course of law; and without habeas corpus
relief,
(36) be free from permanent derogatory and liberty-threatening stigmata of
"institutionalized," "criminally insane," "mental patient," and "mental commitments,"
and false psychiatric diagnoses that appear in permanent records and flagged on one's
driver's license, subjecting one to repeated arrests, impounding of vehicle, searches and
seizures, loss of property and funds, legal fees, and mental commitments at the whim of
these same malicious defendants, and the resulting permanent decrease in earning ability
and detrimental impact on future income,
(37) be free from loss of all rights prior to trial, including right to appoint a power
of attorney, to take care of business, to have equal access to the courts, to discovery of
evidence and witnesses against the accused, to confront and cross-examine evidence and
witnesses against one, to subpoena witnesses and present evidence favorable to the
accused, to be present at hearings, to have a jury determination, to receive exculpatory
evidence and witnesses in a timely and meaningful manner, to a fair and impartial
tribunal, to a neutral and detached magistrate, to fair pretrial publicity, to a law library or
Internet for research and to prepare motions and briefs, to a computer or word processor
to prepare motions and briefs, to a copier to make copies, to timely mail service, to
represent one's self, to communicate with lawyers of one's choice, to communicate with
clients, to communicate with family, to communicate with friends, to be in the least
restrictive environment, to earn a livelihood, to provide for and protect one's children, to
protect one's property from theft, dissipation, loss, and damage while being detained in
an unlawful and unconstitutional captivity,
(38) equal protection under the law and the same rights as a civil litigant to recuse
or object to the assignment of a hand-picked or biased judge and to have a fair and
impartial judge and neutral and detached magistrate,
(39) be free from malicious abuse of process by misapplication of vague,
ambiguous, or overly broad statutes,
(40) be free from malicious retaliatory conspiracies to harm, injure, and damage
1st
business and personal reputation, and to cause a chilling effect on amendment rights,
(41) be free of laws, customs, practices, habits, policies, or procedures, which
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abridge the privileges or immunities of the citizens of the United States, and
(42) be free from a deprivation of life, liberty, or property, without procedural and
substantive due process or due course of law.
16. Plaintiffs will show that the loss of liberty, privacy, peace and solitude,
personal property, real property, earnings, familial relationships, and all the damages,
injuries, and losses sustained by Plaintiffs were a legally cognizable result and reasonably
foreseeable consequence of the Defendants misconduct, recklessness, and malice, jointly
and severally acting in concert; and that all of the rights that were violated were clearly
established at the time of the misconduct.
17. BARI'sTES' substantial rights were affected; had she not been coerced in a
misleading manner to take on an additional lawyer by court-appointment in order to
obtain the exculpatory evidence she was entitled to under the due course of law, she
would not have been held in captivity for over a year and continuing. Defendants,
BRADLEY, MCCABE, MCDONALD, WILSON, WCSD, HERNANDEZ, TRAVIS,
RICHTER, BOGAN, FOSTER, NEWELL, DE LA VEGA, BRINKMANN, BARTZ,
HUGHEY, ANDERSON, CARNES, HOBBS, and RYE all engaged in truly egregious
and unconscionable misconduct during the "investigatory" phase, especially by not
making a good faith investigation, abandoning the search for the real location and
perpetrator, and maliciously framing and punishing an innocent citizen for a crime they
did not commit; and when their scheme was about to be exposed with the exculpatory
evidence they had been hiding, they chose to dispense with due process and due course of
law and punish BARNES without a trial. The due process clause protects citizens against
misconduct that is so ill-motivated and unjustifiable as to shock the conscience. Long
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ago, the Supreme Court held that the deliberate use of false testimony violates due
process. The pretrial conduct here both shocks the conscience and was designed to
subvert all the procedural protections afforded suspects and the accused. The perpetual
and cumulating misconduct strikes at the very heart of the due process, equal protection,
and due course of law guarantees.
18. When these defendants manipulated and fabricated evidence with the
intent to use it to deprive BARNES of her liberty, property, and reputation, they violated
federally protected rights. The false probable cause affidavit and defamatory per se
accusations in the media frenzy were further compounded by the false and fraudulent
"finding" of "incompetent to stand trial." The plotting and scheming between the
prosecutors and the deputies on Saturday, May 8, 2010, the day following the Garza trial,
led to the false arrest. The false arrest led to the malicious prosecutions and conspiracy
between TRAVIS COUNTY and WILLIAMSON COUNTYS WAIM, ESCAMILLA,
TUMLINSON, KLEKAR, MORGAN, SAENZ, GUERRERO, MCCABE,
MCDONALD, BRADLEY, SHAVER, CARNES, ANDERSON, BROOKS, HOBBS,
RYE, SCHEFFLER, SCHREIBER, flUMES, BRINKMANN, DE LA VEGA, BARTZ,
WAGGONER, HUGHEY, RICHTER, TRAVIS, HERNANDEZ, NEWELL, BOGAN,
FOSTER, GRIFFITH, RUPPART, ET AL. The malicious prosecutions and conspiracy
led to the malicious abuse of process under C.C.P. art. 46B and violations of equal
protection and Texas Bill of Rights and Texas Health and Safety Code, Title 7, Subtitle
C.74 These malicious abuses of process and violations led to all the ensuing damages,
Extended Involuntary Commitment Order: The trial judge may order a proposed patient to receive court
ordered extended inpatient mental health services only if the jury, or the judge if the right to a jury is
waived, finds, from clear and convincing evidence, that (1) the proposed patient is mentally ill; (2) as a
result of the mental illness, he (A) is likely to cause serious harm to himself, (B) is likely to cause serious
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losses, and irreparable harm. Since there was no felony crime committed, the
Defendants, BRADLEY, MCCABE, MCDONALD, ANDERSON, CARNES, and
SHAVER acted in the clear absence of all jurisdiction. The co-conspirators cannot use
fraud to fabricate district court jurisdiction and these defendants were well aware of the
fraud and fabrication, they were not neutral and detached magistrates or fair and impartial
judicial officers, and they acted with utmost malice when they agreed to enter into and act
in furtherance of the malicious criminal conspiracy.
19. The good-faith exception would not apply if the material presented to the
magistrate or judge is false or misleading, (Franks v. Delaware, 438 U. 5. 154 (1978)), or
so clearly lacking in probable cause that no well-trained officer could reasonably have
thought that a warrant should issue. The courts have repeatedly held that the unsupported
assertion or belief of an officer does not satisfy the probable cause requirement. See, e. g.,
Whiteley v. Warden, 401 U. 5. 560, 564-565 (1971); Jones v. United States, 362 U.S.
257, 269 (1960); Nathanson v. United States, 290 U. 5. 41(1933). Nathanson held that,
no matter how reliable the affiant-officer may be, a warrant should not be issued unless
harm to others, or (C) is (i) suffering severe and abnormal mental, emotional, or physical distress, (ii)
experiencing substantial mental or physical deterioration of his ability to function independently, which is
exhibited by his inability, except for reasons of indigence, to provide for his basic needs, including food,
clothing, health, or safety, and (iii) unable to make a rational and informed decision as to whether or not to
submit to treatment; (3) his condition is expected to continue for more than ninety days; and (4) he has
received court ordered inpatient mental health services under Subtitle C, Texas Mental Health Code, or
under Chapter 46B, Code of Criminal Procedure, for at least sixty consecutive days during the preceding
twelve months. Tex. Health & Safety Code Ann. § 574.035(a) (Vernon Supp. 2005). To be clear and
convincing under this statute, the evidence must include expert testimony and evidence of a recent overt act
or a continuing pattern of behavior that tends to confirm either the likelihood of serious harm to the
proposed patient or others or the proposed patient's distress and the deterioration of his ability to function.
Tex. Health & Safety Code Aim. § 574.035(e) (Vernon Supp. 2005). Clear and convincing evidence means
the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction
as to the truth of the allegations sought to be established. State v. Addington, 588 S.W.2d 569, 570 (Tex.
1979). The statutory requirements for an involuntary commitment are strict because it is a drastic
measure. In re C.O., 65 S.W.3d 175, 182 (Tex. App.Tyler 2001, no pet.).
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the affidavit discloses supporting facts and circumstances. Justice Jackson's admonition
in Brinegar v. United States, 338 U.S. 160 (1949):
"[Fourth Amendment rights] are not mere second-class rights but belong
in the catalog of indispensable freedoms. Among deprivations of rights,
none is so effective in cowing a population, crushing the spirit of the
individual and putting terror in every heart. Uncontrolled search and
seizure is one of the first and most effective weapons in the arsenal of
every arbitrary government....
"But the right to be secure against searches and seizures is one of the most
difficult to protect. Since the officers are themselves the chief invaders,
there is no enforcement outside of court." Id., at 180-181 (dissenting
opinion).
4th
20. 1983 Unreasonable Seizure and Excessive Force Amendment.
The allegations contained in Paragraphs 1 through 180 of Section IV and in Paragraphs 1
through 19 immediately above are herein incorporated by reference, the same as if fully
set forth verbatim for any and all purposes of this pleading.
21. "The evil of an unreasonable search or seizure is that it invades privacy,
not that it uncovers crime, which is no evil at all." Townes v. City of New York, 176 F.3d
138, 148 (2d Cir.1999). The actions andlor omissions of Defendants cannot be justified
under the circumstances of the instant case. Likewise, Defendants are liable if they
conduct the seizure in an abusive manner even if they have the lawful authority to
conduct the seizure. BARNES, in this situation, is protected by the Fourth Amendment
to the United States Constitution and Article I, Sec. 9 of the Texas Constitution. In this
instance, the seizure of BARNES ran afoul of the Fourth Amendment because it was
conducted in an unlawful and abusive manner.
22. WILSON and HAMILTON are being sued in their official or respondent
4th
superior capacity because deputies of WCSD and TCSD, violated BARNES
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amendment rights. All Defendants were directly involved in the criminal conspiracy and
violations of 42 U.S.C. Sections 1983 and 1985; 18 U.S.C. Sections 1962 and 1964; and
18 U.S.C. Sections 241 and 242. HAMILTON was very aware of the events and criminal
actions of TUMLINSON, LERMA, COTTON, THREE UNIDENTIFIED, KLEKAR and
others who were aiding and abetting the cover-up for TUMLINSON's felony activity and
the felony activity of the THREE UNIDENTIFIED, LERMA, COTTON, KLEKAR and
others and he failed and refused to investigate or take any corrective action. WILSON
was very aware of the events and criminal actions of SCHEFFLER, DE LA VEGA,
HERNANDEZ, RICHTER, TRAVIS, BOGAN, HUGHEY, WAGGONER, NEWELL,
BRINKMANN, FOSTER, BARTZ, RUPPART, RYE, HOBBS, BRADLEY, MCCABE,
MCDONALD, and others who were aiding and abetting the cover-up for
BRINKMANN's and DE LA VEGA's felony activity and the felony activity of
MCDONALD, MCCABE, BRADLEY and others and he failed and refused to
investigate or take any corrective action, and those like CLIFTON who unreasonably
1st,
blocked BARNES' access to the courts. All of these Defendants violated BARNES'
4th 14th
and amendment rights causing damages, harm, and injury as a direct and
proximate result of these violations.
4tb
23. 1983 Unreasonable Search Amendment. The allegations
contained in Paragraphs 1 through 180 of Section IV and in Paragraphs 1 through 22
immediately above are herein incorporated by reference, the same as if fully set forth
verbatim for any and all purposes of this pleading.
24. BARNES and her children had a right to be free from unreasonable
searches without a warrant and/or without probable cause and/or warrants issued on false
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probable cause affidavit by a magistrate who was not neutral and detached.
WILLIAMSON COUNTY, WCSD, and its deputies, employees, agents, and
representatives, including HERNANDEZ, BR1NKMANN, TRAVIS, RICHTER,
FOSTER, DE LA VEGA, BARTZ, HUGHEY, WAGGONER, BOGAN, NEWELL,
RYE, HOBBS, BROOKS, GRIFFITH, RUPPART, ANDERSON, CARNES, SHAVER,
BRADLEY, MCCABE, MCDONALD, and SCHREIBER, as well as GITTEL, POPPA,
SCHEFFLER, the news media Defendants and their anonymous contributors listed only
4th
by their pseudonyms, violated Plaintiffs' amendment rights and the damages, injuries,
and harm sustained by Plaintiffs was a reasonably foreseeable consequence of these
violations.
25. 1983 - Invasion of Privacy by Intrusion Upon Seclusion
4th
Amendment. The allegations contained in Paragraphs 1 through 180 of Section IV and
in Paragraphs 1 through 24 immediately above are herein incorporated by reference, the
same as if fully set forth verbatim for any and all purposes of this pleading.
26. BARNES and her children had a right to be free from such gross invasions
of privacy by intrusion upon seclusion and their right to be left alone and free from public
defamation. The unjustified intrusion into Plaintiffs' private information and BARNES'
client files and safe, building, vehicles, and Plaintiffs' private lives was a gross violation
of BARNES and Plaintiffs' right to privacy and to be left alone. WILLIAMSON
COUNTY, WCSD, and its deputies, employees, agents, and representatives, including
HERNANDEZ, BRINKMANN, TRAVIS, RICHTER, FOSTER, DE LA VEGA,
BARTZ, HUGHEY, WAGGONER, BOGAN, NEWELL, RYE, HOBBS, BROOKS,
GRIFFITH, RUPPART, ANDERSON, CARNES, SHAVER, BRADLEY, MCCABE,
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MCDONALD, and SCHREIBER, as well as GITTEL, POPPA, SCHEFFLER, the news
media Defendants and their anonymous contributors listed only by their pseudonyms,
4th
violated Plaintiffs' amendment rights and the damages, injuries, and harm sustained
by Plaintiffs was a reasonably foreseeable consequence of these violations.
27. 1983 - Freedom Of Speech and Redress of Grievances
Amendment. The allegations contained in Paragraphs 1 through 180 of Section IV and
in Paragraphs 1 through 26 immediately above are herein incorporated by reference, the
same as if fully set forth verbatim for any and all purposes of this pleading.
28. BARNES had a right to criticize, complain, and file suit against offenders
and, at all relevant times, BARNES' right to free speech and to redress of grievances has
been infringed, suppressed, and denied. TRAVIS COUNTY, TCSD, WILLIAMSON
COUNTY, WCSD, and its deputies, employees, agents, and representatives, including
but not limited to, HAMILTON, WILSON, TUMLINSON, KLEKAR, GUERRERO,
SAENZ, MORGAN, ESCAMILLA, SWAIM, UNIDENTIFIED THREE, COTTON,
LERMA, HERNANDEZ, BRINKMANN, TRAVIS, RICHTER, FOSTER, DE LA
VEGA, BARTZ, HUGHEY, WAGGONER, BOGAN, NEWELL, RYE, HOBBS,
BROOKS, GRIFFITH, RUPPART, ANDERSON, CARNES, SHAVER, BRADLEY,
MCCABE, MCDONALD, and SCHREIBER as well as SCHEFFLER, CLIFTON,
GITTEL, POPPA, the news media Defendants and all their anonymous contributors
1st
listed by their pseudonyms, violated BARNES' amendment rights and the damages,
injuries, and harm sustained by Plaintiffs was a reasonably foreseeable consequence of
these violations.
6th
29. 1983 Right to Speedy and Public Trial by an Impartial Jury
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Amendment. The allegations contained in Paragraphs 1 through 180 of Section IV and
in Paragraphs 1 through 28 immediately above are herein incorporated by reference, the
same as if fully set forth verbatim for any and all purposes of this pleading.
30. BARNES is entitled to a speedy and public trial by an impartial jury and
to be free from being tried in the press without any rules of evidence or procedure being
applied; yet, BARNES has been deprived by all of the Defendants, acting in concert,
from having a speedy trial to clear her name and permanently deprived of an impartial
jury due to the permanent postings on the Internet. TRAVIS COUNTY, TCSD,
WILLIAMSON COUNTY, WCSD, and its deputies, employees, agents, and
representatives, including but not limited to, HAMILTON, WILSON, TUMLINSON,
KLEKAR, GUERRERO, SAENZ, MORGAN, ESCAMILLA, SWAIM,
UNIDENTIFIED THREE, COTTON, LERMA, HERNANDEZ, BRJNKMANN,
TRAVIS, RICHTER, FOSTER, DE LA VEGA, BARTZ, HUGHEY, WAGGONER,
BOGAN, NEWELL, RYE, HOBBS, BROOKS, GRIFFITH, RUPPART, ANDERSON,
CARNES, SHAVER, BRADLEY, MCCABE, MCDONALD, and SCHREIBER, as well
as SCHEFFLER, GITTEL, POPPA, and all the news media Defendants and their
6th
anonymous contributors listed only by their pseudonyms, violated BARNES'
amendment rights and the damages, injuries, and harm sustained by Plaintiffs was a
reasonably foreseeable consequence of these violations.
31. 1983 Right to be Confronted With the Witnesses and to Have
Compulsory Process Amendment. The allegations contained in Paragraphs 1
through 180 of Section IV and in Paragraphs 1 through 30 inmiediately above are herein
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incorporated by reference, the same as if fully set forth verbatim for any and all purposes
of this pleading.
32. BARNES has bee deprived by Defendants of her right to confront the
witnesses and evidence against her and of her right to compulsory process in violation of
the 6th
amendment. TRAVIS COUNTY, TCSD, WILLIAMSON COUNTY, WCSD, and
its deputies, employees, agents, and representatives, including but not limited to,
HAMILTON, WILSON, TUMLJNSON, KLEKAR, GUERRERO, SAENZ, MORGAN,
ESCAMILLA, SWAIM, UNIDENTIFIED THREE, COTTON, LERMA,
HERNANDEZ, BRINKMANN, TRAVIS, RICHTER, FOSTER, DE LA VEGA,
BARTZ, HUGHEY, WAGGONER, BOGAN, NEWELL, RYE, HOBBS, BROOKS,
GRIFFITH, RUPPART, SCHEFFLER, ANDERSON, CARNES, SHAVER, BRADLEY,
6th
MCCABE, MCDONALD, and SCHREIBER violated BARNES' amendment rights
and the damages, injuries, and harm sustained by Plaintiffs was a reasonably foreseeable
consequence of these violations.
33. 1983 -- Right to Self-Representation and/or Assistance of Counsel of
Choice and Effective Assistance of Counsel 6 Amendment. The allegations
contained in Paragraphs 1 through 180 of Section IV and in Paragraphs 1 through 32
immediately above are herein incorporated by reference, the same as if fully set forth
verbatim for any and all purposes of this pleading.
34. BARNES was deprived of her right to self-representation, representation
6th
of counsel of her choice, and effective assistance of counsel in violation of the
amendment by WILLIAMSON COUNTY, BRADLEY, MCCABE, MCDONALD,
SHAVER, and SCHREIBER. WILLIAMSON COUNTY, WCSD, and its deputies,
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employees, agents, and representatives, including but not limited to, RYE, HOBBS,
BROOKS, ANDERSON, CARNES, SHAVER, BRADLEY, MCCABE, MCDONALD,
6th
and SCHREIBER violated BARNES' amendment rights and the damages, injuries,
and harm sustained by Plaintiffs was a reasonably foreseeable consequence of these
violations.
14th
35. 1983 Right to Equal Protection of the Laws and Due Process
Amendment. The allegations contained in Paragraphs I through 180 of Section IV and
in Paragraphs 1 through 34 immediately above are herein incorporated by reference, the
same as if fully set forth verbatim for any and all purposes of this pleading.
36. BARNES at all relevant times has been deprived of equal protection of the
14th
laws and due process in violation of the amendment, as more fully set forth herein.
TRAVIS COUNTY, TCSD, WILLIAMSON COUNTY, WCSD, and its deputies,
employees, agents, and representatives, including but not limited to, HAMILTON,
WILSON, TUMLINSON, KLEKAR, GUERRERO, SAENZ, MORGAN, ESCAMILLA,
SWAIM, UNIDENTIFIED THREE, COTTON, LERMA, HERNANDEZ,
BRINKMANN, TRAVIS, RICHTER, FOSTER, DE LA VEGA, BARTZ, HUGHEY,
WAGGONER, BOGAN, NEWELL, RYE, HOBBS, BROOKS, GRIFFITH, RUPPART,
ANDERSON, CARNES, SHAVER, BRADLEY, MCCABE, MCDONALD, HUMES,
and SCHRETBER, as well as SCHEFFLER, CLIFTON, GITTEL, POPPA, and all the
news media Defendants and the anonymous Defendants listed only by their pseudonyms,
violated Plaintiffs' amendment rights and the damages, injuries, and harm sustained
by Plaintiffs was a reasonably foreseeable consequence of these violations.
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37. 1983 - Right to Be Free of Excessive, Oppressive, or Punitive Bail -
8' Amendment. The allegations contained in Paragraphs 1 through 180 of Section IV
and in Paragraphs 1 through 36 immediately above are herein incorporated by reference,
the same as if fully set forth verbatim for any and all purposes of this pleading.
38. BARNES was subjected to repetitive false arrests and extractions of
excessive, oppressive, and punitive bail, and eventually deprived of her right to pretrial
freedom all together as a direct and proximate result of the criminal conspiracy alleged
8th
herein, in violation of the amendment. TRAVIS COUNTY, TCSD, WILLIAMSON
COUNTY, WCSD, and its deputies, employees, agents, and representatives, including
but not limited to, HAMILTON, WILSON, TUMLINSON, GUERRERO, SAENZ,
MORGAN, ESCAMILLA, SWAIM, HERNANDEZ, BRINKMANN, TRAVIS,
RICHTER, FOSTER, DE LA VEGA, BARTZ, HLTGHEY, WAGGONER, BOGAN,
NEWELL, RYE, HOBBS, BROOKS, GRIFFITH, RUPPART, ANDERSON, CARNES,
SHAVER, BRADLEY, MCCABE, MCDONALD, and SCHREIBER as well as
SCHEFFLER, GITTEL, POPPA, the news media Defendants and all their anonymous
8th
contributors listed by their pseudonyms, violated BARNES' amendment rights and the
damages, injuries, and harm sustained by Plaintiffs was a reasonably foreseeable
consequence of these violations.
8th
39. 1983 Right to Be Free from Cruel or Unusual Punishment
Amendment. The allegations contained in Paragraphs 1 through 180 of Section IV and
in Paragraphs 1 through 38 immediately above are herein incorporated by reference, the
same as if fully set forth verbatim for any and all purposes of this pleading.
40. BARNES had a right to be free from cruel and unusual punishment, and
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the excessive punitive pretrial actions lodged against BARNES were both cruel and
unusual because our system of justice abhors the punishment of the accused before
conviction and without any semblance of due process; and it is unusual because it was a
denial of equal protection and application of the criminal statures to accomplish this cruel
and unusual punishment, which culminated in the indefinite pretrial captivity of
BARNES in a state hospital for the criminally insane. TRAVIS COUNTY, TCSD,
WILLIAMSON COUNTY, WCSD, and its deputies, employees, agents, and
representatives, including but not limited to, HAMILTON, WILSON, TUML1NSON,
KLEKAR, GUERRERO, SAENZ, MORGAN, ESCAMILLA, SWAIM,
UNIDENTIFIED THREE, COTTON, LERMA, HERNANDEZ, BRINKMANN,
TRAVIS, RICHTER, FOSTER, DE LA VEGA, BARTZ, HUGHEY, WAGGONER,
BOGAN, NEWELL, RYE, HOBBS, BROOKS, GRIFFITH, RUPPART, ANDERSON,
CARNES, SHAVER, BRADLEY, MCCABE, MCDONALD, and SCHREIBER as well
as SCHEFFLER, GITTEL, POPPA, the news media Defendants and all their anonymous
8th
contributors listed by their pseudonyms, violated Plaintiffs' amendment rights and the
damages, injuries, and harm sustained by Plaintiffs was a reasonably foreseeable
consequence of these violations.
41. 1983 Right to Be Free from Deprivation of life, liberty, or
property, without Due Process of Law and Right to Be Free From Malicious,
Vindictive Prosecutions
5th
and Amendments. The allegations contained in
Paragraphs 1 through 180 of Section IV and in Paragraphs 1 through 40 immediately
above are herein incorporated by reference, the same as if fully set forth verbatim for any
and all purposes of this pleading.
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42. BARNES had a right to be free from deprivation of life, liberty, or
property, without Due Process of Law and she has been systematically deprived of those
rights by a complete loss of liberty, extensive loss of real and personal property, and a
5th
shortening of her life expectancy due to the vindictive deprivations in violation of the
and 14th amendments. TRAVIS COUNTY, TCSD, WILLIAMSON COUNTY, WCSD,
and its deputies, employees, agents, and representatives, including but not limited to,
HAMILTON, WILSON, TUMLINSON, KLEKAR, GUERRERO, SAENZ, MORGAN,
ESCAMILLA, SWAIM, UNIDENTIFIED THREE, COTTON, LERMA,
HERNANDEZ, BRINKMANN, TRAVIS, RICHTER, FOSTER, DE LA VEGA,
BARTZ, HUGHEY, WAGGONER, BOGAN, NEWELL, RYE, HOBBS, BROOKS,
GRIFFITH, RUPPART, ANDERSON, CARNES, SHAVER, BRADLEY, MCCABE,
MCDONALD, and SCHREIBER as well as SCHEFFLER, GITTEL, POPPA, the news
media Defendants and all their anonymous contributors listed by their pseudonyms,
violated BARNES'
5th
and 14th amendment rights and the damages, injuries, and harm
sustained by Plaintiffs was a reasonably foreseeable consequence of these violations.
43. 1983 Right to Keep and Bear Arms 2' Amendment. The
allegations contained in Paragraphs 1 through 180 of Section W and in Paragraphs 1
through 42 immediately above are herein incorporated by reference, the same as if fully
set forth verbatim for any and all purposes of this pleading.
44. On May 11, 2010, without a warrant authorizing same, WCSD,
WILLIAMSON COUNTY, MCCABE, MCDONALD, BRADLEY, CARNES,
ANDERSON, HOBBS, RYE, SCHEFFLER, BRINKMANN, DE LA VEGA, BARTZ,
WAGGONER, HUGHEY, RICHTER, TRAVIS, HERNANDEZ, NEWELL, BOGAN,
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and FOSTER appropriated all of BARNES' weapons and ammunition and failed and
refused to leave a complete inventory; and have illegally withheld them since that time
even though they have nothing to do with any alleged crime. GITTEL described the
revolver in detail, even giving the bore size. No revolver or other handgun was found
anywhere in, on, or around BARNES' real and personal property. The inventory left at
the residence states that these Defendants removed "two shotguns and two LR," which
were illegally, unlawfully, and unconstitutionally removed from a 1500 square foot
locked building over 300 yards from the residence.75 There is not now, nor has there ever
been a warrant permitting entry into the 1500 sq. foot locked building or permitting the
seizure and conversion of this personal property. This burglary of a building was
accomplished in the same mannerwithout an affidavit, without a warrant authorizing
entry, and by appropriation of private property without the effective consent of the
owner, while knowingly engaging in a criminal trespass. Thus, this search of the
building and seizure of personal property was not reasonable, and the seizure of this
personal property from the building was illegal, unconstitutional, and unlawful. No
reasonable law enforcement officer would have reasonably believed that this burglary of
a building was lawful or constitutional, or that the continued withholding and
confiscation of this personal property was legal or constitutional. This personal property
had absolutely nothing to do with the allegations and was appropriated in violation of the
Texas Constitution Art. I, Section 9, 17, and 19 and in violation of the United States
Constitution amend. II, IV and XIV, and in violation of Texas Penal Code Sections
39.02, 39.03, 39.04, 39.06, 30.05, 30.02, 31.03, 15.02. and 71.02. Further, on June 10,
WCSD deputies deceptively referred to the building as a "shed" near the house, when in fact, it is a 1500
square foot building with a thick concrete foundation and a large garage door and a back door that these
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2010, CARNES ordered BARNES to turn over all weapons in her possession knowing
that said Defendants had already illegally confiscated them, in further violation of
BARNES' Constitutional rights under Texas Constitution Art. I, Section 3, 3a, 9, 10, 11,
13, 16, 17, and 19 and the United States Constitution amends. II, IV, V, VI, VIII, IX, and
XIV. WCSD, WILLIAMSON COUNTY, and its employees are not free to impose
pretrial punishment and strip away constitutionally protected rights from accused who are
lawfully and constitutionally presumed innocent. WCSD, WILLIAMSON COUNTY,
CARNES, BRADLEY, MCCABE, and MCDONALD, and employees and deputies of
WCSD and WILLTAMSON COUNTY are not free to impose pretrial punishment and
strip away constitutionally protected rights from accused who are lawfully and
constitutionally presumed innocent. WILLIAMSON COUNTY, WCSD, and its
deputies, employees, agents, and representatives, including but not limited to,
HERNANDEZ, BRINKMANN, TRAVIS, RICHTER, FOSTER, DE LA VEGA,
BARTZ, HUGHEY, WAGGONER, BOGAN, NEWELL, RYE, HOBBS, BROOKS,
ANDERSON, CARNES, BRADLEY, MCCABE, MCDONALD, SCHEFFLER,
2nd
GITTEL, and POPPA, violated Plaintiffs' amendment rights and the damages,
injuries, and harm sustained by Plaintiffs was a reasonably foreseeable consequence of
these violations.
45. 1983 - Governmental Entity liability. The allegations contained in
Paragraphs 1 through 180 of Section IV, particularly Paragraphs 3 5-36, and in Paragraphs
1 through 44, immediately above are herein incorporated by reference, the same as if
fully set forth verbatim for any and all purposes of this pleading.
perpetrators left wide open when they left, just like a burglar would do.
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46. The influence of politics and a lack of accountability have fostered an
anything-goes mentality within law enforcement ranks and within the prosecutors'
offices. No elected official speaks out against the rampant abuses in law enforcement for
fear of being perceived as "soft" on crime or as a "liberal" in an ultra-conservative
county. The elected officials take no action to rectify these abuses, and, in fact,
encourage and reward such abuses. This custom and practice enables employees, law
enforcement personnel, and prosecutors to operate with little scrutiny. Law enforcement
personnel and prosecutors are sworn to uphold the law, not break it. Honesty and
integrity are indispensable tools in the criminal justice system, especially in the
investigation and prosecution of cases. Thus, it is up to the judiciary to ensure that justice
is done; however, the judges are former prosecutors (i.e., ANDERSON hired and trained
BRADLEY and was instrumental in instituting these practices when he was the District
Attorney), and are under the same political pressures.76 In cases of this nature, where the
retaliation and lack of sufficient probable cause is present, the local judges bow out and
bring in hand-picked "visiting" judges, i.e. SHAVER, to do the dirty work for pay. The
gross short-comings of the court appointed lawyer system are well-known. The accused
is often left with no representation at all. It, therefore, must fall on the federal courts to
address systemic local corruption in the criminal justice systemcertainly, the Texas
Court of Criminal Appeals is not going to address it, again, due to the politics involved
and the inherent hate towards anyone labeled a "criminal" in Texas.77 The mere
76
Albert Einstein once said "The world is a dangerous place, not because of those who do evil, but because
of those who look on and do nothing."
Find out just what the people will submit to and you have found out the exact amount of injustice and
wrong which will be imposed upon them; and these will continue until they are resisted with either words
or blows, or with both. The limits of tyrants are prescribed by the endurance of those whom they oppress.
Frederick Douglass, civil rights activist, Aug. 4, 1857
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accusation, coupled with the media coverage and Internet inflamed by press-release-
probable-cause-affidavits, completely deprives the citizens of Grand Jury protection from
malicious prosecutions and the right to a fair and speedy trial before an impartial jury.
47. WILSON and HAMILTON are being sued in their representative or
respondent superior capacity. All Defendants were directly involved in the criminal
conspiracy and violations of 42 U.S.C. Sections 1983 and 1985; 18 U.S.C. Sections 1962
and 1964; and 18 U.S.C. Sections 241 and 242. HAMILTON was very aware of the
events and criminal actions of TUML1NSON, LERMA, COTTON, THREE
UNIDENTIFIED, KLEKAR and others who were aiding and abetting the cover-up for
TUMLINSON's felony activity and the felony activity of the THREE UNIDENTIFIED,
LERMA, COTTON, KLEKAR and others and he failed and refused to investigate or
take any corrective action. WILSON was very aware of the events and criminal actions
of DE LA VEGA, HERNANDEZ, RICHTER, TRAVIS, BOGAN, HUGHEY,
WAGGONER, NEWELL, BR1NKMANN, FOSTER, BARTZ, RUPPART, and others
who were aiding and abetting the cover-up for BRINKMANN's and DE LA VEGA's
felony activity and the felony activity of MCDONALD, MCCABE, BRADLEY,
HOBBS, RYE, and others and he failed and refused to investigate or take any corrective
action.
48. BARNES will establish a long-standing tradition, habit, custom, and
practice of obstruction, retaliation, and civil rights violations by these same individuals
and policy makers in WILLIAMSON COUNTY and TRAVIS COUNTY, TEXAS.
Based on information and belief, in particular court records and public records obtained
from WILLIAMSON COUNTY, TRAVIS COUNTY, and from the Western District,
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these Defendants have been involved in similar activity in the past, and have been
engaged in a pattern of fraudulent conduct relating to other incidents for a period of
decades. This habit, practice, and custom had been long established and engrained prior
to BARNES' encounters with these Defendants. These Defendants have exhibited a
habit, practice, and custom of abusing their social, economic, and political power to
coerce and control others with intimidation, threats, force, and retaliation long before the
aggravated assault, aggravated kidnapping, and aggravated perjury involved in this case,
and had the policy makers of WILLIAMSON COUNTY and TRAVIS COUNTY,
TEXAS taken adequate and appropriate action to address, alleviate, and prevent these
continuous acts that so clearly violate current constitutional law and civil rights
legislation, Plaintiffs would not have been injured, harmed, or subjected to substantial
losses, injuries, and damages.
49. It is well-established that governmental entities whose policies and
procedures or habits, customs, and practices permit these types of abuses of office and
power are liable under 42 U.S.C. § 1983 for constitutional torts that are in compliance
with the county's customs, practices, policies or procedures. A govermnental entity is
liable for constitutional deprivations visited pursuant to governmental custom even
though such custom has not received formal approval through the body's official decision
making channels. In this case, TRAVIS COUNTY, WILLIAMSON COUNTY, TCSD,
and WCSD are liable because it/they sanctioned the custom, practice and/or policy or
procedure of illegal searches and seizures and/or violating their rights to be free of
unreasonable and wanton searches and seizure and/or sanctioned the use of probable
cause affidavits as press releases to deprive the accused of a fair trial, due process, and
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presumption of innocence and/or sanctioned multiple arrests and bail bond requirements
for the same incident; and sanctioned malicious, vindictive, and retaliatory prosecutions,
and/or sanctioned the unconstitutional control over the grand jury process by the
prosecutors. Defendants actions were a customary practice and/or policy or procedure
that was sanctioned by WCSD, TCSD, WILSON, HAMILTON, TRAVIS COUNTY, and
WILLIAMSON COUNTY, and out of which BARNES was deprived of her civil rights
secured by statute and by both the Texas and United States Constitutions. Liability for
TRAVIS COUNTY and WILLIAMSON COUNTY is established under § 1983 because
the arrest, mistreatment, and prosecution of an individual with no justification, is a
persistent, widespread practice of county employees -- namely officers/deputies -- that,
although not authorized by officially adopted policy, is so common and well settled as to
constitute a custom that fairly represents official policy. HAMILTON's, WILSON's,
TCSD's, WCSD's, TRAVIS COUNTY's, and WILLIAMSON COUNTY's actual or
constructive knowledge of this practice, custom, and/or policy or procedure and of
numerous prior incidents of officers/employees unlawfully arresting citizens, assaulting
citizens, being abusive to citizens, over-charging with a felony, unconstitutionally
manipulating the PC affidavit as a press release, abuse of pretrial bail, and engaging in
retaliatory, vindictive, selective, or malicious prosecutions establishes habitual practices
and accession to that custom by their policy makers. HAMILTON's, TRAVIS
COUNTY's, WILSON's, and WILLIAMSON COUNTY's unspoken policy of
unlawfully arresting citizens, mistreating them, and maliciously prosecuting them, is a
decision that reflects deliberate indifference to the risk that a violation of a particular
constitutional or statutory right will follow the decision. In the alternative, HAMILTON,
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TCSD, TRAVIS COUNTY, WILSON, WCSD, and WILLIAMSON COUNTY are liable
under § 1983 for failure to adopt a policy precluding officers/employees from unlawfully
arresting citizens, mistreating, or maliciously prosecuting them, because such failure to
adopt such a policy is one of intentional choice.78 The harm inflicted on Plaintiffs was
the result of action on the part of the government entities that implemented or executed a
policy statement, ordinance, regulation, or decision officially adopted and promulgated
by that body's officers, or the result of the entity's custom. Further, the entity's policy or
custom was the proximate cause and the "moving force" behind the deprivations.
50. The county policies and practices with respect to criminal investigations
and the judicial process is established, influenced, and shaped by the HAMILTON,
TCSD, WILSON, WCSD, the TRAVIS COUNTY and WILLIAMSON COUNTY
Attorneys, the WILLIAMSON COUNTY and TRAVIS COUNTY District Attorneys, the
WILLIAMSON COUNTY and TRAVIS COUNTY District Judges, and WILLIAMSON
COUNTY and TRAVIS COUNTY Commissioner's Courts. These elected officials are
responsible for the behavior, actions, and activity of their attorneys, agents, employees,
representatives, and law enforcement personnel. The governmental culture and county
policies and practices of these counties are conducive to and supportive of obstruction of
78
See Paragraph 35 in Section IV above. See also, Oklahoma v. Brown, 520 U.S. 397, 406-07, 411, 117
S. Ct. 1382, 137 L. Ed. 2d 626 (1997); Harris, 489 U.S. at 388-92, 109 S. Ct. 1197; Walker v. City of New
York, 974 F.2d 293, 297-98 (2d Cir.1992), cert. denied, 507 U.S. 961, 113 S. Ct. 1387, 122 L. Ed. 2d 762
(1993); see also Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir.1991); Monell v.
Department of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L.Ed.2d 611(1978). Even in the absence
of an "explicitly adopted rule or regulation," Sorlucco v. New York City Police Dep't, 971 F.2d 864, 870 (2d
Cir. 1992), a plaintiff may prove the existence of municipal policy if he can show that the unlawful act was
done or approved by the person with fmal policy-making authority in the area in which the action was
taken. See Pembaur, 475 U.S. at 480-8 1, 106 S. Ct. 1292. Custom, on the other hand, may be the basis for
municipal liability even where the practice "has not been formally approved by an appropriate
decisionmaker," if "the relevant practice is so widespread as to have the force of law." Brown, 520 U.S. at
404, 117 S. Ct. 1382. Where unconstitutional conduct of subordinates is "permanent" and "well settled," see
Monell, 436 U.S. at 691, 98 S. Ct. 2018, a municipality can be held liable because the practice is "so
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justice, retaliation, abuse of office, abuse of power, coercion, threats, violence, violations
of constitutional and civil rights, and oppression, particularly against members of suspect
classes based on race, sex, social-economic class, and/or status as an informant or
complainant exposing wrong-doing by employees, agents, representatives, attorneys, and
law enforcement personnel. When it comes down to the final policy makers, the County
Judges and Commissioner's Courts, County Attorneys, District Attorneys, District
Judges, Sheriffs, and local law enforcement, serve the vital and crucial role because they
hold the ultimate power or authority and should therefore be held ultimately accountable
for the policy, practice, habit, and custom of WILLIAMSON COUNTY and TRAVIS
COUNTY. While acting in their individual capacity when carrying out the grievances
and activity set forth herein, it was their ability to benefit and profit from the use of
governmental position and power that provided the means and mechanism to retaliate
against Plaintiffs and obstruct justice. These governmental entities, through their agents,
employees, representatives, attorneys and law enforcement personnel used unlawful
means or abused lawful process to violate BARNES' equal protection, due process, and
due course of law rights; and to deprive her of any legal recourse through intimidation,
lack of fairness and impartiality, bullying, retaliation, obstruction, destruction of
evidence, and denial of other valuable constitutional rights. Counties and supervisors are
liable for constitutional violations committed by county employees when those violations
result directly from a municipal custom or policy. See City of Canton v. Harris, 489 U.S.
378, 385, 109 5. Ct. 1197, 1203, 103 L. Ed. 2d 412 (1989); Breaux v. City of Garland,
205 F.3d 150, 161 (5th Cir. 2000).
manifest as to imply the constructive acquiescence of senior policymaking officials." Sorlucco, 971 F.2d at
871.
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51. TRAVIS COUNTY and WILLIAMSON COUNTY failed to properly
hire, train, supervise and discipline its employees; and in this regard, Plaintiffs will show
that (1) the training or hiring procedures of the counties' policymakers were inadequate,
(2) the counties' policymakers were deliberately indifferent in adopting the hiring or
training policy, and (3) the inadequate hiring or training policy directly caused the
plaintiffs injuries. Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996). These policies or
customs were not inadvertent, or merely unintentionally negligent oversights, but were
the result of an intentional choice made by the prosecutors presenting the training during
the initial hiring phase and subsequent "in-house training" for the law enforcement
personnel. The vast majority of local law enforcement training occurs in WILLIAMSON
COUNTY and TRAVIS COUNTY as part of an in-house training program often "taught"
by representatives of the local prosecutors' offices or the policy makers of the respective
Sheriff's departments. New recruits and seasoned law enforcement personnel are taught
by the prosecutors and policy makers how to circumvent or "get around" constitutional
parameters and restrictions. The focus is on over-charging alleged crimes as felonies, so
the prosecutors have "room to bargain" and on fabricating or doctoring the reports and
records so that evidence or statements are admissible at trial, irregardless of the
constitutionality of the obtainment of that evidence and on drafting PC affidavits as press
releases to deprive the accused of a fair trial and presumption of innocence and in
manipulation of the grand jury process. Law enforcement personnel are actually trained
and encouraged to disrespect the constitution and disobey the law in "enforcing" the law.
It becomes a game to impress the prosecutors rather than a true effort to improve the
community and protect the citizens against crime. The emphasis is on obtaining
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convictions, whatever the costs, rather than solving the crime and finding the true
perpetrator. The policy and custom emphasizes convictions and punishments, rather than
the truth and justice. This is a policy and procedure that is embraced and encouraged by
the prosecutors and judges who are politically elected and motivated in this regard. In
light of the duties assigned to specific officers or employees, the need for more or
different training is obvious, and the inadequacy and purposeful intent of this training is
so likely to result in violations of constitutional rights, that the policymakers of these
counties can reasonably be said to have been deliberately indifferent to the need to
protect the citizens, act in good faith in solving crimes and filing charges, and in the
avenues and procedures employed to obtain convictions, rather than see that justice is
done.
52. This deliberate indifference on the part of the policy makers for the
counties and for their respective sheriff's departments is highlighted by their complete
lack of response to BARNES' repeated attempts to resolve the constitutional violations
and continued retaliation and malicious prosecutions, as well as the failure of the counties
or either of their respective sheriffs departments to take any remedial or corrective action
to cause their personnel to cease and desist or to protect BARNES and her family from
the continued harassment, defamation, punishment, losses, injuries, and damages that are
on-going, escalating, and accruing without any sign of abatement. The constitutional
violations against BARNES are just the tip of the iceberg as will be shown by the actions
against others similarly situated and many of BARNES' clients. This is not just an
isolated incident. The retaliation against free speech and right to petition the government
for redress of grievances is well recognized in these counties, particularly when the
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speech is directed towards the elected officials, judges, prosecutors, or law enforcement
personnel. There have been numerous arrests that are clearly unconstitutional, such as
arrests of a man for "shooting the finger" at an off-duty cop; of a young woman because
the officer did not like her bumper sticker; of another young woman because she objected
to the officer entering her apartment without a warrant and then stating "I know my
rights;" of a man who objected to an officer coming into his home without a warrant; an
elderly woman who spoke up to help a friend; a woman sending in a complaint against a
public office; a woman who sent an email complaining to an employee of the
government; a young woman for "public intoxication" just because of what she was
wearing; brutally assaulting a hand-cuffed older man just because he called the officer a
"pussy;" and the list goes on. These constitutional rights were well established prior to
these incidents and false arrests. Often law enforcement officers assault the citizens and
turn it around and claim that the citizen assaulted themjust as TUMLIN SON and
RUPPART did to BARNES. Often citizens are so abused, they require hospitalization
and some die in custody. Nothing is ever done to address, educate, or train these known
abuses out of existence.
53. In this case, all of the policy makers were well aware of the on-going
retaliation, harassment, defamation, multiple arrests, and malicious prosecutions against
BARNES, and they deliberately and intentionally took no action to prevent or mitigate
the harm, damage, and injury their actions caused. The motives of the counties and their
sheriffs departments were contrary to constitutional standards and evidence a complete
disregard for the constitutional rights of the citizens. The counties and their sheriff's
departments not only should have known of the risks of harm, but had actual knowledge
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of the on-going harm as a direct result of these customs, practices, policies, and
procedures; yet, they took no corrective or remedial action. Plaintiffs will show a
deliberate pattern and practice of constitutional violations committed by the law
enforcement personnel and prosecutors over the past ten years, as well as the fact that the
policy makers, county officials, and sheriffs were aware of these practices and customs
that were likely to endanger the constitutional rights of its citizens.
54. HAMILTON, ESCAMILLA, GUERRERO, WILSON, ANDERSON,
CARNES, BRADLEY, RYE, and HOBBS were final policy makers for TRAVIS
COUNTY and WILLIAMSON COUNTY, respectively, thereby rendering the respective
counties liable under 18 U.S.C. § 1983 for their constitutional torts.
55. Moreover, TRAVIS COUNTY and WILLIAMSON COUNTY are liable
for inadequate training of their deputies, employees, and prosecutors under § 1983. These
counties failed to act, by training and supervising their subordinates, or taking some
action to put a halt to frivolous and bad faith arrests, harassment, retaliation, and
especially malicious prosecutions that are motivated solely by animus and desire to
retaliate and have a chilling effect on officers of the court zealously representing their
clients. These final decision and policy makers continue to adhere to an approach or
system that they know or should know has failed to prevent these same constitutional
violations in the past. That failure to act encourages, rewards, and escalates the continuity
of these bad faith actions and police brutality. These decisions by the policymakers
reflect a deliberate indifference to the risk that a violation of a particular constitutional or
statutory right will follow the decisions. Liability attaches to TRAVIS COUNTY and
WILLIAMSON COUNTY because their failure to train amounts to deliberate
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indifference to the rights of the persons with whom these deputies/employees/prosecutors
come in contact. In particular, Plaintiffs allege that the training programs in relation to
the tasks the particular deputies/employees/prosecutors must perform are inadequate in
the respect that the programs fail to teach new deputies/employees/prosecutors that
unlawfully arresting, prosecuting, or punishing innocent citizens violate citizens'
constitutional rights. As such, the deficiency in training actually caused said Defendant
deputies/employees/prosecutors to violate Plaintiffs' constitutional rights. TRAVIS
COUNTY and WILLIAMSON COUNTY had evidence that the abuses were occurring
and had notice of same, but repeatedly failed to make any meaningful investigation into
charges that constitutional rights were being violated; that failure to take meaningful
action to address the conditions demonstrates deliberate indifference.
56. Prior to and at all times relevant to this suit, HAMILTON, GUERRERO,
and ESCAMILLA developed, established and maintained widespread practices, polices,
habits, and customs at the TRAVIS COUNTY Sheriffs Department, TRAVIS COUNTY
Pre-trial Services, and TRAVIS COUNTY Attorney's Office, respectively, exhibiting
deliberate indifference and conscious disregard to the constitutional rights of persons in
TRAVIS COUNTY, which caused the violation of Plaintiffs' rights. HAMILTON was
well aware of TUMLINSON's propensities, including his disrespectful treatment of
inmates when he worked in the jail, his fellow workers, and officers of the court who
were in the courthouse conducting business because all of these complaints and concerns
were in TUML1NSON's personnel files.
57. Prior to and at all times relevant to this suit, WILSON, ANDERSON,
CARNES, HOBBS, RYE, and BRADLEY developed, established and maintained
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widespread practices, polices, habits, and customs at the WILLIAMSON COUNTY
Commissioner's Court, WILLIAMSON COUNTY Sheriff's Department,
WILLIAMSON COUNTY District and County Attorney's Office, and WILLIAMSON
COUNTY District and County Courts, exhibiting deliberate indifference and conscious
disregard to the constitutional rights of persons in WILLIAMSON COUNTY, which
caused the violation of Plaintiffs' rights. These final policy-makers, as well as the
WILLIAMSON COUNTY Commissioner's Court, knew about these malicious
prosecutions, false arrests, defamation, and harassment and failed and refused to take any
corrective action; they knew these deputies and other employees were violating BARNES
constitutional rights in retaliation against her for zealously representing her clients and
filing lawsuits against WILLIAMSON COUNTY and WCSD in the past. Therefore, the
policymakers encouraged and approved their subordinates' unlawful acts because they
ratified both the subordinate's decision and the basis for itto retaliate and discourage
others from taking like actionto cause a chilling effect on first amendment rights. It
would be difficult to find anyone employed in law enforcement, or by WILLIAMSON
COUNTY, WCSD, or the prosecutors' office who were not aware of the hostility and
animosity by these Defendants against BARNES, certainly the memos, emails, and
caution flags that were continuously published against BARNES would place any policy
maker on notice of what was going on and the escalation of same. Certainly, during the
Arnold Garza case when BROOKS issued the edict directing WCSD to follow, escort,
and/or monitor BARNES every time she came to the courthouse would have placed
policy makers on notice of the unconstitutional escalation of the level of harassment and
curtailment in her right to practice law and earn a livelihood unhindered by elected
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officials of WILLIAMSON COUNTY.
58. It is inconceivable that a lawyer practicing in TRAVIS COUNTY and
WILLIAMSON COUNTY for so many years, who is arrested on a first degree felony,
would not warrant a good faith investigation and review of the case against her to
ascertain the weakness and absence of the evidence in the case and lack of probable cause
to arrest her. No reasonable policy maker would have failed to conduct such a good faith
investigation prior to ruining the reputation, career, and practice of an officer of the court.
The policy makers in both of these counties exhibited a deliberate indifference and
conscious disregard for the constitutional rights of Plaintiffs and persons similarly
situated when they failed to cause or conduct a good faith investigation into these false
allegations prior to allowing their subordinates and employees to so maliciously defame
BARNES in the media and permanently on the Internet. Any reasonable decision maker
would have known that these allegations would ruin BARNES' career, practice, and
reputation and that there would be no way to recover from the harm, injury, and damage
that was reasonably foreseeable. This is especially heightened by the fact that BARNES
had been the target of retaliation and many false arrests and malicious prosecutions prior
to these latest false arrests and malicious prosecutionsthis history of bad faith by
county deputies and prosecutors should have heightened the alert and concern. The fact
that both counties have failed and refused to provide BARNES with discovery and a
timely resolution and speedy jury trial is further evidence that these policy makers know
that the arrests were wrongful and the prosecutions are malicious; otherwise, they would
not hide the evidence, stall the case, resist discovery, and continue to obstruct justice.
Further, no reasonable policy maker would have devised the malicious scheme to abuse
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process under C.C.P. art. 46B and Texas Health and Safety Code, Title 7, Subtitle C to
permanently banish BARNES to a state mental hospital for the criminally insane when
BARNES has not ever hit, punched, poked, shoved, scratched, bruised, or hurt anyone.
BARNES has been repeatedly hit, poked, shoved, scratched, bruised, and hurt by county
employees and law enforcement personnel. It is inconceivable that any reasonable policy
marker would believe in good faith that a trial lawyer who has been practicing almost 30
years would be "incompetent to stand trial" and if they did really believe that in good
faith, then they would have had no problem allowing BARNES her constitutional and
statutory right to a jury trial, to confront the evidence and cross examine the witnesses,
and to call experts and fact witnesses in her own defense. These Defendants failed and
refused to even provide BARNES with a copy of any pleadings or orders and failed and
refused to give her any notice of the "hearings." BARNES was not even allowed to
attend the "hearing" resulting in the year-long civil commitment without any semblance
of due process. No reasonable policy maker would have believed in good faith that those
"hearings" comported with due process, equal protection, or due course of law.
59. It was the widespread practice, custom, habit, and/or administrative policy
of HAMILTON, ESCAMILLA, GUERRERO, WILSON, ANDERSON, CARNES,
BRADLEY, RYE, and HOBBS, as the final policy makers, to advise, instruct, and train
the prosecutors and law enforcement investigators and personnel to improperly
investigate, report, file, and respond to corruption, unlawful conduct, or wrong-doing on
the part of county employees, law enforcement personnel, or members of the criminal
justice system in their respective counties, and to cover-up and obstruct the complaints,
investigations, or reports of any such corruption, unlawful conduct, or wrong-doing; and
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to retaliate against any civilians reporting such activity. The bulk of local law
enforcement training is conducted in WILLIAMSON COUNTY and TRAVIS COUNTY
at the respective WCSD and TCSD, utilizing the prosecutors, who rather than teach better
ethical police practices, they teach officers and deputies what to say and do to "get
around the constitution" and to escape liability for the county or municipality. There is
no respect for the Constitution, rather it is viewed in a derogatory light, as a hindrance to
"getting things done," and an unwanted restraint on "authoritarian" behavior. This has
lead to the abusive and disrespectful mentality that runs rampant amount certain deputies
and prosecutors, which is often directed more forcefully towards female defense lawyers
who do not simply plea bargain all their cases. This widespread practice, custom, habit,
and/or administrative policy is evidenced by the number of persons prosecuted or
threatened with prosecution or subjected to harassment and false arrests for engaging in
such activity, which is perceived as a threat.
60. HAMILTON, as Sheriff of TRAVIS COUNTY, had the duty to properly
advise, instruct, and train law enforcement administrators, directors, and officers,
including TUMLINSON, COTTON, LERMA, UNIDENTIFIED THREE, and KLEKAR,
to require or provide appropriate in-service training or re-training, supervision, and
discipline to establish and promote a healthy and lawful respect for constitutional rights,
rather than promoting and encouraging ways and means of getting around the
constitutional protections, and covering up for any such violations. As a result of the
above described policies, practices, habits, and customs the individual Defendants
believed that their actions would be tolerated, encouraged, and rewarded. Under the
specific direction and/or acquiescence and acting under the wide-spread practices of
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HAMILTON, said individual Defendants, jointly and severally, knowingly, recklessly,
and with deliberate indifference and callous disregard of Plaintiffs' rights, engaged in the
aforementioned unlawful andlor unconstitutional activity in violation of the
aforementioned constitutional rights. HAMILTON knew or should have known that the
said individual Defendants would engage in the described conduct in violation of
Plaintiffs' constitutional rights due to the aforesaid policies, habits, practices, and
customs, as well as the failure to properly supervise and discipline said individual
Defendants, and HAMILTON had the power to prevent or aid in the prevention of the
commission of said wrongs, and could have done so by reasonable diligence, and
knowingly, recklessly, or with deliberate indifference and conscious disregard of
Plaintiffs' rights, failed or refused to do so. Therefore, because HAMILTON both
directed and engaged in the unconstitutional practices, and because they are the final
policy makers, TRAVIS COUNTY is liable for any harm, injury, or damages caused to
Plaintiffs by these Defendant employees of TRAVIS COUNTY. Plaintiffs suffered and
continue to suffer harm, injury, and damage as a foreseeable consequence of the
constitutional violations.
61. ESCAMILLA, as TRAVIS COUNTY Attorney, had the duty to properly
advise, instruct and train law enforcement administrators, directors, and officers, as well
as the prosecutors and court personnel, including SWAIM, GUERRERO, SAENZ, and
MORGAN, to require or provide appropriate in-service training or re-training,
supervision, and discipline to establish and promote a healthy and lawful respect for
constitutional rights, rather than promoting and encouraging ways and means of getting
around the constitutional protections, and covering up for any such violations. As a result
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of the above described policies, practices, habits, and customs the individual Defendants
believed that their actions would be tolerated, encouraged, and rewarded. Under the
specific direction andlor acquiescence and acting under the wide-spread practices of
ESCAMILLA, said individual Defendants, jointly and severally, knowingly, recklessly,
and with deliberate indifference and callous disregard of Plaintiffs' rights, engaged in the
aforementioned unlawful andlor unconstitutional activity in violation of the
aforementioned constitutional rights. ESCAMILLA knew or should have known that the
said individual Defendants would engage in the described conduct in violation of
Plaintiffs' constitutional rights due to the aforesaid policies, habits, practices, and
customs, as well as the failure to properly supervise and discipline said individual
Defendants, and ESCAMILLA had the power to prevent or aid in the prevention of the
commission of said wrongs, and could have done so by reasonable diligence, and
knowingly, recklessly, or with deliberate indifference and conscious disregard of
Plaintiffs' rights, failed or refused to do so. Therefore, because ESCAMILLA both
directed and engaged in the unconstitutional practices, and because they are the final
policy makers, TRAVIS COUNTY is liable for any harm, injury, or damages caused to
Plaintiffs by these Defendant employees of TRAVIS COUNTY. Plaintiffs suffered and
continue to suffer harm, injury, and damage as a foreseeable consequence of the
constitutional violations.
62. WILSON, as Sheriff of WILLIAMSON COUNTY, had the duty to
properly advise, instruct, and train law enforcement administrators, directors, and
officers, including, HERNANDEZ, RICHTER, TRAVIS, BOGAN, NEWELL,
HUGHEY, WAGGONER, BARTZ, BRINKMANN, DE LA VEGA, FOSTER, and
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RUPPART, to require or provide appropriate in-service training or re-training,
supervision, and discipline to establish and promote a healthy and lawful respect for
constitutional rights, rather than promoting and encouraging ways and means of getting
around the constitutional protections, and covering up for any such violations. As a result
of the above described policies, practices, habits, and customs the individual Defendants
believed that their actions would be tolerated, encouraged, and rewarded. Under the
specific direction andlor acquiescence and acting under the wide-spread practices of
WILSON said individual Defendants, jointly and severally, knowingly, recklessly, and
with deliberate indifference and callous disregard of Plaintiffs' rights, engaged in the
aforementioned unlawful andlor unconstitutional activity in violation of the
aforementioned constitutional rights. WILSON knew or should have known that the said
individual Defendants would engage in the described conduct in violation of Plaintiffs'
constitutional rights due to the aforesaid policies, habits, practices, and customs, as well
as the failure to properly supervise and discipline said individual Defendants, and
WILSON had the power to prevent or aid in the prevention of the commission of said
wrongs, and could have done so by reasonable diligence, and knowingly, recklessly, or
with deliberate indifference and conscious disregard of Plaintiffs' rights, failed or refused
to do so. Therefore, because WILSON both directed and engaged in the unconstitutional
practices, and because they are the final policy makers, WILLIAMSON COUNTY is
liable for any harm, injury, or damages caused to Plaintiffs by these Defendant
employees of WILLIAMSON COUNTY. Plaintiffs suffered and continue to suffer harm,
injury, and damage as a foreseeable consequence of the constitutional violations.
63. ANDERSON, CARNES, BRADLEY, GRIFFITH, as the final policy
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makers for WILLIAMSON COUNTY and as the District Attorney, had the duty to
properly advise, instruct, and train law enforcement administrators, directors, and
officers, as well as prosecutors and court personnel, including RYE, HOBBS, BROOKS,
MCDONALD, MCCABE, GRIFFITH, to require or provide appropriate in-service
training or re-training, supervision, and discipline to establish and promote a healthy and
lawful respect for constitutional rights, rather than promoting and encouraging ways and
means of getting around the constitutional protections, and covering up for any such
violations. Under the specific direction and/or acquiescence and with the participation
and wide-spread practices of ANDERSON, CARNES, BRADLEY, GRIFFITH, it was
the administrative policy, habit, practice, and/or custom of said Defendants to require or
provide appropriate in-service training or re-training, supervision, and discipline to
establish and promote a healthy and lawful respect for constitutional rights, rather than
promoting and encouraging ways and means of getting around the constitutional
protections, and covering up for any such violations. As a result of the above described
policies, practices, habits, and customs the individual Defendants believed that their
actions would be tolerated, encouraged, and rewarded. Under the specific direction
and/or acquiescence and acting under the wide-spread practices of ANDERSON,
CARNES, BRADLEY, GRIFFITH, said individual Defendants, jointly and severally,
knowingly, recklessly, and with deliberate indifference and callous disregard of
Plaintiffs' rights, engaged in the aforementioned unlawful and/or unconstitutional activity
in violation of the aforementioned constitutional rights. ANDERSON, CARNES,
BRADLEY, GRIFFITH, knew or should have known that the said individual Defendants
would engage in the described conduct in violation of Plaintiffs' constitutional rights due
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to the aforesaid policies, habits, practices, and customs, as well as the failure to properly
supervise and discipline said individual Defendants, and ANDERSON, CARNES,
BRADLEY, GRIFFITH had the power to prevent or aid in the prevention of the
commission of said wrongs, and could have done so by reasonable diligence, and
knowingly, recklessly, or with deliberate indifference and conscious disregard of
Plaintiffs' rights, failed or refused to do so. Therefore, because ANDERSON, CARNES,
BRADLEY, GRIFFITH, both directed and engaged in the unconstitutional practices, and
because they are the final policy makers, WILLIAMSON COUNTY is liable for any
harm, injury, or damages caused to Plaintiffs by these Defendant employees of
WILLIAMSON COUNTY. Plaintiffs suffered and continue to suffer harm, injury, and
damage as a foreseeable consequence of the constitutional violations.
64. All of the deprivations set forth herein were all well-recognized at the time
of these events, as shown by various published and circulated trade publications for law
enforcement, e.g., a 2006 publication which specifically stated:
Protecting Civil Rights: A Leadership Imperative: All law enforcement
leaders recognize the ethical and legal imperatives to which they and their
officers must adhere to ensure that civil rights of all individuals in their
communities are protected. Law enforcement officers, in fact, are the most
visible and largest contingent of the nation's guardians of civil rights.
Every police officer commits to upholding the nation's prime guarantor of
rights, the U.S. Constitution, when sworn into office. To be effective, a
police department and its individual officers must be seen primarily as
protectors of civil rights, rather than agents of social control whose main
purpose is to limit individual freedoms. The effectiveness of police in their
varied missionsfrom law enforcement to community servicedepends
on the trust and confidence of the community. Public trust and confidence
are severely reduced when individuals' civil rights are compromised. And
when any community perceives that its civil rights are systematically
violated by the police, all sense of trust, cooperation, and partnership
between the police and that community will be undermined.
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Understanding these ethical imperatives, law enforcement leaders must be
continually vigilant to ensure that the actions of their officers do not
violate civil rights and do not compromise public support. Officers are
granted a tremendous amount of authority and discretion to enforce the
law, that is, to protect individual rights from being infringed upon by
others in the community. At the same time, officers themselves must act
within the confines of the Constitution while executing their tremendous
power and wide discretion. They must never consider themselves above
the law while executing their responsibility to enforce the law. This
commitment is what distinguishes police in constitutionally based,
democratic societies like ours from police in nondemocratic countries,
where they too often are perceived as oppressive agents of a government
whose main purpose is to restrict, rather than protect, the rights of
civilians.. .Law enforcement leaders bear the tremendous responsibility to
ensure that individual officers and units within their agencies uphold the
law and its most basic guarantees.. .In the case of officers who
systematically violate civil rights, their behavior must not be tolerated and
action must be decisive and uncompromising. Effective leaders, supported
by the managers who serve them, must strive to identify and intervene
when officers exhibit potentially problematic behavior before it escalates
to the point of violating civil rights.
Against this backdrop, the seriousness of law enforcement leaders'
responsibility to communicate a consistent and far-reaching commitment
to civil rights protections cannot be overstated. Although laws,
departmental policy directives, and standard operating procedures are
critically important, law enforcement executives' leadership and
communication skills are the most critical elements for ensuring that
officers regularly exercise sound judgment and engage in professional and
ethical policing.
Law enforcement leaders can and must demonstrate a fundamental and
complete allegiance to civil rights protections in a coordinated manner
using multiple approaches. They must clearly convey a simultaneous
commitment to effective law enforcement and civil rights protection; they
must codify this commitment in their agency's mission statements; they
must ensure that their department's polices are clear, sound, and consistent
with civil rights guarantees; they must train and supervise officers in
manners that are consistent with this commitment; and they must respond
to alleged civil rights violations with vigilance and with fair and decisive
action. As law enforcement leaders succeed in these regards and make
these efforts transparent to the public, they validate the core premise that
civil rights protection is not only an ethical and legal imperative but a
practical imperative as well. Protecting civil rights is good for police, good
for the community, and essential for maintaining the partnerships that
must exist between the two.. .We must remember that any oppression, any
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injustice, any hatred is a wedge designed to attack our civilization.. . It
should be clear to police leaders that they must develop policies, training,
and accountability."79
65. HAMILTON, TRAVIS COUNTY and the TCSD are not an arm of the
State of Texas. HAMILTON and TCSD are acting on behalf of TRAVIS COUNTY and
not the State of Texas. HAMILTON, TRAVIS COUNTY, Texas and the TCSD and
TRAVIS COUNTY prosecutors have the habit, custom, practice, policy, or procedure of:
(1) blocking access to the grand jury by intercepting mail addressed
specifically to the Foreman of the Grand Jury and preventing citizens from appearing
before the Grand Jury when any credible citizen should be able to present matters to the
grand jury for investigation;
(2) preventing the victims of assaults by public servants or employees of
TRAVIS COUNTY from filing criminal charges, having equal access to the courts, from
presenting grievances, or having access to Victim's Services;
(3) allowing employees of TRAVIS COUNTY to intentionally sensationalize
arrests and draft the PC affidavits for a press release rather than for truthfulness as a way
to manipulate and taint public perception and opinions to further deprive the accused of a
fair trial and destroy the presumption of innocence. They know the accused is locked up
and cannot defend themselves, while the culprits are actively publishing misinformation,
misleading information, and flat out dishonest information;
(4) allowing a reviewer to override a recommendation not to hire if the
employee can convince the reviewer that his poor performance or bad attitude is the
result of failure to properly train and/or supervise;
(5) failing to re-train, educate, counsel, discipline, or supervise employees and
courthouse security personnel in order to prevent these unwarranted attacks, rudeness,
and bullying of the public and officers of the court who must enter the courthouse to
conduct business and earn their livelihood;
(6) allowing employees or courthouse security personnel to assault members
of the public and officers of the court coming to the courthouse to conduct business and
earn a livelihood and then destroying the video recordings of the events that would prove
the official misconduct; and then blocking any avenue or recourse the public or officer of
the court has to report and rectify the abusive conduct;
Protecting Civil Rights: A Leadership Guide for State, Local, and Tribal Law Enforcement, Prepared by
the international Association of Chiefs of Police, September 2006.
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(7) allowing the revocation of bond by pretrial services, practicing law
without a license, and without due process when the accused person has not ever violated
any term or condition of his pretrial release, and using three multiple bail bonds merely to
punish, injure, damage, and oppress;
(8) allowing employees to use the signature of Irma Guerrero to cause the
issuance of a warrant without her involvement, knowledge, or oversight, and without
following the law;
(9) allowing the use of instrumentality owned by the State of Texas to be used
by TRAVIS COUNTY and TCSD to assault officers of the court during their
appearances at the court conducting business before the court. This happened on two
separate occasions at the TRAVIS COUNTY courthouse and both times tortiously
interfered with the contracts BARNES had with her clients. BARNES was only there at
the courthouse on both of those occasions as an officer of the court to conduct business
on behalf of clients that she was representing;
(10) punishing accused persons pretrial when they are accused of "hitting a
cop" but taking them to the "special housing" in the back part of the jail, stripping their
clothes off, sticking them in a freezing cold cell, and not allowing them to be released
when their bond is posted;
(11) detaining, restraining, searching, and seizing BARNES in violation of her
Fourth Amendment expectation of privacy and guarantee to security from unreasonable
search and seizure without reasonable suspicion andlor probable cause;
(12) continuing to hold BARNES long after her bond had been posted in bad
faith, to further harm, punish, and injure her; and then placing her out on the street late so
that she is in further danger of harm;
(13) subjecting BARNES to another malicious assault and search simply for
reporting her missing property at discharge from the jail;
(14) falsely and maliciously charging BARNES with the commission of crimes
without probable cause to believe that such crimes had occurred and on the sole basis of
hatred andlor anger;
(15) allowing a policy of falsely charging and re-arresting someone who is out
on a $50,000 bond with a misdemeanor, over six months after the alleged crime, without
probable cause, continuing to delay the resolution of the case in bad faith, and then
plotting and scheming with other malicious prosecutors rather than seeing that justice is
done;
(16) allowing and encouraging a policy whereby the prosecutors and deputies
can continuously violate clear constitutional rights of the citizens with impunity and no
corrective action or disciplinary investigations or consequences;
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(17) failing to intervene, where such intervention would have prevented the
violations and/or damages of Plaintiffs; and
(18) allowing a pattern or practice of civil rights violations including the
following:
Unlawful or excessive use of force
Inadequate training on use-of-force techniques
Racial profiling and racial/sexual/economic discrimination
Illegal stops and searches
Intimidation by police
Harassment of civilians in retaliation for reported misconduct
Inadequate supervision
Failure to establish a civilian complaint process and failure to investigate officer
misconduct.
66. WILSON, WILLIAMSON COUNTY and the WCSD are not an arm of
the State of Texas. WILSON and WCSD are acting on behalf of WILLIAMSON
COUNTY and not the State of Texas. WILSON, WILLIAMSON COUNTY, Texas and
the WCSD and WILLIAMSON COUNTY prosecutors have the habit, custom, practice,
policy, or procedure of:
(1) blocking access to the grand jury and preventing citizens from appearing
before the Grand Jury when any credible citizen should be able to present matters to the
grand jury for investigation;
(2) preventing the victims of assaults, abuses, and false arrests by public
servants, elected officials, deputies, or employees of WILLIAMSON COUNTY from
filing criminal charges, having equal access to the courts, from presenting grievances, or
having access to Victim's Services; and retaliating with further arrests, bail bonds,
charges, and accusations of "filing a false police report" when they attempt to do so;8°
80
BARNES has attempted repeatedly for over a decade to file criminal charges and civil suits against these
elected officials, deputies, investigators, prosecutors, and employees of WILLIAMSON COUNTY, to no
avail. Initially BARNES' letters received nonsensical responses like the District Attorney would say that
the complaints against the elected officials would have to be brought by the County Attorney; and the
County Attorney would say that the charges were felonies and would have to be brought by the District
Attorney; the Texas Rangers would say they had to be invited in by the District or County Attorney to
begin an investigation; the Attorney General would say to contact the F.B.I. and the F.B.I. simply called
and told the culprits in WILLIAMSON COUNTY; and the retaliation would begin all over again and no
one would do anything about the corruption, constitutional violations, bullying tactics, illegal abuses,
unlawful activity, and retaliation. Many lawyers will not practice in WILLIAMSON COUNTY for these
reasons; and many people will not travel into WILLIAMSON COUNTY due to the abuses. The retaliation
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(3) devising schemes to gain access to and search private residences such as
BARNES based solely on the malice of SCHEFFLER and the deputies without a warrant,
or such as using fake 911 hang-up calls like in the Arnold Garza case to force law
enforcement into a private residence to search the home, arrests the owner, and search the
vehicles, all without a warrant or probable cause, and then retaliate against those citizens
who refuse to plea bargain and their lawyer who chooses to expose it rather than coerce
the client into a plea bargain;
(4) allowing a policy where deputies can use excessive force to surround a
private residence with weapons drawn, peering into windows and searching private
residences, including the use of a scope on a high-powered rifle, without a warrant;
(5) allowing employees and prosecutors of WILLIAMSON COUNTY and
deputies/investigators with the WCSD to intentionally sensationalize arrests and draft the
PC affidavits for a press release rather than for truthfulness as a way to manipulate and
taint public perception and opinions to further deprive the accused of a fair trial and
destroy the presumption of innocence. They know the accused is locked up and cannot
defend themselves, while the culprits are actively publishing misinformation, misleading
information, and flat out dishonest information;
(6) allowing employees and prosecutors of WILLIAMSON COUNTY and
deputies/investigators with the WCSD to intentionally taint the potential jury pool with
defamatory per se statements to the media and deliberately publish inadmissible evidence
in order to support the malicious motive and destroy the credibility of the accused,
undermine the defense, and prevent the accused from obtaining a fair trial;
(7) maliciously abusing the "visiting judge" assignments and court-appointed
lawyer system for political reasons and to unconstitutionally manipulate the prosecution
in order to deprive the accused of their day in court, right to speedy trial, and right to
clear their name and regain their life, reputation, familial relations, and livelihood;
(8) allowing bad faith prosecutors to intentionally and deliberately teach,
train, and coach the deputies and other law enforcement personnel how to get around the
constitutional requirements, and how to fabricate evidence, write probable cause
affidavits to maximize the harm to the accused, and how to over-charge with a felony to
give the prosecutors "room to negotiate" rather than being honest and working with
integrity and using the best law enforcement practices;
(9) failing to re-train, educate, counsel, discipline, or supervise employees,
deputies, investigators, and prosecutors in order to prevent and remedy a long history of
abusing the public and arrestees and ignoring the legal parameters of the constitutions
and falsely over-charging arrestees and fabricating evidence and manufacturing charges
to embarrass, humiliate, and harm without probable cause;
and brutal activity has a chilling effect on bail bondsmen and defense lawyers and others who know what is
happening, so they do nothing to expose it or confront the offenders.
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(10) allowing, encouraging, and rewarding employees, deputies, investigators,
and prosecutors who abuse and bully the public, engage in abusive false arrests, falsely
over-charge arrestees, fabricate evidence, hide and destroy exculpatory evidence, falsify
or sensationalize probable cause affidavits, commit aggravated perjury, and maliciously
prosecute the citizens of this country and then destroying the evidence that would prove
the official misconduct; and then blocking any avenue or recourse the public or officer of
the court has to report and rectify the abusive and bullying conduct;
(11) allowing a policy where the prosecutors will meet with the deputies and
plan a way to charge a person in retaliation, rather than based on probable cause, and
thereby destroy exculpatory evidence, such as the address print out and map from the
census bureau that was in existence and in the alleged victim's hands when she met with
the deputies, and tamper with the governmental records so that the written reports would
appear that the deputies were dispatched to BARNES' residence where shots were fired,
when in fact, they were dispatched to Spoons Restaurant, then two hours later attempted
to locate 33 Indian Trail in Leander rather than Liberty Hillthey were never dispatched
to 419 Indian Trail, and they knew before they plotted and schemed that GITTEL was not
sent to 419 Indian Trail in Leander and GITTEL was not ever sent out to talk to
BARNES;
(12) allowing a policy where deputies can violate state law and tow and search
a legally parked vehicle without justification or probable cause just because they do not
like the owner;
(13) allowing the revocation of surety bail bonds without any semblance of due
process in order to sua sponte, without warning, abusively incarcerate people as pretrial
punishment, causing serious, outrageous, and irreparable harm;
(14) allowing courthouse employees to use the rubber stamped signature of
elected officials in order to practice law without a license or make judicial decisions that
harm others involved in court proceedings and to cause said harm often without the
elected officials involvement, knowledge, or oversight, and without following the law;
(15) allowing the use of instrumentality owned by the State of Texas to be used
by WILLIAMSON COUNTY and WCSD to assault, abuse, and punish citizens of this
country and State without justification or probable cause;
(16) allowing deputies, law enforcement personnel, and prosecutors to steal
from the public and then retaliating against officers of the court who report and object to
the unlawful and illegal official misconduct;
(17) punishing accused persons pretrial and keeping them incarcerated until
they agree to plea bargain;
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(18) abusing the court appointed lawyer system and the "visiting" judge system
to railroad persons accused of a crime for political reasons, in bad faith, or to protect the
county from liability when the deputies, elected officials, or employees have used
excessive force or engaged in false and retaliatory arrests;
(19) maliciously abusing C.C.P. art. 45B and Tex. Health & Safety Code, Title
7, Subtitle C, for political reasons, in bad faith, to impose pretrial punishment, or to
protect the county from liability when the deputies, elected officials, or employees have
used excessive force or engaged in false and retaliatory arrests;
(20) attempting to and actually detaining, restraining, searching, and seizing
BARNES in violation of her Fourth Amendment expectation of privacy and guarantee to
security from unreasonable search and seizure without reasonable suspicion andlor
probable cause;
(21) falsely and maliciously charging BARNES with the commission of crimes
without probable cause to believe that such crimes had occurred and on the sole basis of
hatred and/or anger;
(22) allowing a policy to delay the prosecution of a case and schemes to
deprive the accused of their freedom pending trial so they can prepare their defense,
obstruct justice and discovery, abuse process to deprive the accused of a speedy trial and
impose the maximum punishment pretrial without any semblance of due process;
(23) allowing and encouraging a policy whereby the prosecutors and deputies
can continuously violate clear constitutional rights of the citizens with impunity and no
corrective action or disciplinary investigations or consequences;
(24) failing to intervene, where such intervention would have prevented the
violations and/or damages of Plaintiffs; and
(25) allowing a pattern or practice of civil rights violations including the
following:
Unlawful or excessive use of force
Inadequate training on use-of-force techniques
Racial profiling and racial/sexual/economic discrimination
Illegal stops and searches
Intimidation by police
Harassment of civilians in retaliation for reported misconduct
Inadequate supervision
Failure to establish a civilian complaint process and failure to investigate officer
misconduct.
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67. Without all the records, BARNES can cite several armed home invasions
without a warrant in addition to her own. Arnold Garza in December 2009; Barry and
Candi Cooper by WCSD in March 2009 and WCSD also used CPS in that case as they
have with BARNES in the past. It is the habit, practice, and custom of WCSD to abuse
the CPS process and to contact the schools to further harass and punish parents through
their children or threats of removing the children from persons WILLIAMSON
COUNTY deems "unfit." BARNES can also show the pattern, practice, and custom of
retaliating against anyone with knowledge who attempts to speak out and correct the
abuses, or at least shed light on them.
68. 1983 Qualified Good Faith Immunity. A government official is
entitled to qualified immunity unless his act is so obviously wrong, in the light of
preexisting law, that only a plainly incompetent officer or one who was knowingly
violating the law would have done such a thing. The qualified immunity inquiry is purely
objective--the subjective intentions of the actor is irrelevant. The determination of
objective reasonableness must be based on a version of the facts most favorable to
BARNES. To the extent that credibility questions exist, a fact-finder continues to be
necessary. In the instant case, BARNES alleges that Defendants are not entitled to claim
"qualified good faith immunity." Defendants never had a good faith belief in their
conduct because they acted in a manner demonstrating that they were plainly and
seriously incompetent and knowingly violated BARNES' civil rights and at all times
acted with clear malice and malicious intent. No reasonable law enforcement officer,
prosecutor, judge, or lawyer would have reasonably believed that there was sufficient
probable cause to charge or indict BARNES of a degree felony or any other charge
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under the laws of this State. No reasonable law enforcement officer, prosecutor, judge, or
lawyer would have reasonably believed that there were valid grounds to revoke pretrial
bails and to subject BARNES to repetitive arrests. No reasonable law enforcement
officer, prosecutor, judge, or lawyer would have reasonably believed that BARNES
committed the offense of filing a false police report or the offense of interfering with the
duties of a public servant. Further, no reasonable law enforcement officer, prosecutor,
judge, or lawyer would have reasonably believed that T.C.C.P. art. 46B could be utilized
in conjunction with a blatant abuse of Tex. Health & Safety Code, Title 7, Subtitle C, to
permanently deprive BARNES of her constitutional right to a speedy trial before a fair
and impartial jury and subject her to an indefinite pretrial incarceration and imposition of
cruel and unusual punishment without any semblance of due process or due course of
law, or would reasonably believe that a Star Chamber set up was constitutional. These
defendants conduct was so patently violative of these constitutional rights, of which
reasonable officials would have known without guidance from the courts. BARNES was
unlawfully assaulted, arrested, and indicted; and ultimately, maliciously prosecuted, had
her bonds revoked repeatedly without due process, and ultimately condemned to the cruel
and unusual punishment of a state mental unit for the criminally insane in violation of the
Texas Constitution and laws, and the United States Constitution and laws. The Supreme
Court has construed § 1983 broadly to effectuate its purpose of providing a remedy for
official misconduct by state officials. Any reason given by Defendants for their unlawful
actions andlor omissions does not warrant the application of qualified good faith
immunity because they had no lawful reason to arrest and maliciously prosecute
BARNES, revoke or increase her bonds, or conspire to banish her without any semblance
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of due process or impose an indefinite cruel and unusual pre-trial punishment without
affording BARNES a speedy and fair jury trial. BARNES is being held against her will
in a state mental unit for the criminally insane until she agrees to plea bargain and
relinquish her right to a jury trial, agrees to follow the advice of Defendant,
SCHREIBER, (which is essentially, to plea bargain because he does not try cases), and
agrees to stop accusing Defendants of engaging in a conspiracy. This aftempt to coerce
BARNES into pleading guilty to a crime she did not commit is also, unconstitutional.8'
BARNES has asserted violations of her constitutional rights to be free from unreasonable
seizure and this right was clearly established at the time of Defendants' actions.
Moreover, Defendants' actions were objectively unreasonable in the sense that they knew
or reasonably should have known that the actions taken within their authority or
responsibility would violate the constitutional rights of BARNES.
69. 1983 Federal Law Violations. In addition to providing a remedy for
deprivations of constitutional rights, section 1983 also makes actionable violations of
"laws." A violation of a federal statute is cognizable when the violation trammels a right
secured by federal law. The allegations contained in Paragraphs 1 through 180 of Section
IV and in Paragraphs 1 through 67 immediately above are herein incorporated by
reference, the same as if fully set forth verbatim for any and all purposes of this pleading.
In this regard, Plaintiffs plead violations of the following federal laws that were intended
"ENleither the body nor mmd of an accused may be twisted until he breaks." Culombe v. Connecticut,
81
367 U.S. 568, 582, 81 S. Ct. 1860, 1867, 6 L. Ed. 2d 1037; see Arizona v. Fulminante, 499 U.S. 279, 286-87
n. 2, 111 S. Ct. 1246, 1252 n. 2, 113 L. Ed. 2d 302; Smith v. Duckworth, 856 F.2d 909, 912 (7th Cir.1988)
(setting forth numerous relevant factors to be used in determining whether defendant's will was overborne,
including age, educational level, intelligence, length of detention, duration of questioning, as well as
existence of physical punishment or deprivation).
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to benefit Plaintiffs: 42 U.S.C. § 1985 (2); 18 USC § 241, 242; 18 USC § 1961-1968; 18
USC §1512; 18 USC §1513; 18 USC §1343; 18 USC §1957.
70. 1983 - False Arrest and/or False Imprisonment. The allegations
contained in Paragraphs 1 through 180 of Section IV and in Paragraphs 1 through 69
immediately above are herein incorporated by reference, the same as if fully set forth
verbatim for any and all purposes of this pleading. BARNES further alleges that
Defendants, jointly and/or severally violated his Fourth Amendment rights when
Defendants unreasonably falsely arrested, detained, and imprisoned BARNES repeatedly
and then indefinitely on February 28, 2011.
71. BARNES pleads a § 1983 claim for false arrest82 under the Fourth
Amendment as Defendants arrested BARNES without probable cause. Defendants did
not have probable cause to arrest because the facts and circumstances within their
knowledge were not reasonably sufficient to warrant a prudent public servant, officer,
judge, or prosecutor to believe that BARNES had committed or was committing an
offense. On an objective basis, it is obvious that no reasonably competent public servant,
officer, judge, or prosecutor would have concluded that the facts warranted BARNES'
detention, much less her arrest, imprisonment, indictment, and prosecution.
72. BARNES also pleads a § 1983 claim for false imprisonment under the
Fourth Amendment as Defendants falsely imprisoned BARNES on numerous occasions
by frank breaches of the pretrial release agreements, surety bail bond contracts, false
charges, and malicious abuse of process, including but not limited to, the malicious abuse
of process under T.C.C.P. art. 46B and Texas Health and Safety Code, Title 7, Subtitle C,
82
See Reidv. Georgia, 448 U.S. 438, 440, 100 S. Ct. 2752, 65 L. Ed. 2d 890 (1980) (characterizing arrest as
'curtailment of a person's liberty").
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Chapter 574.
73. 1983 - Malicious Prosecution and 241, 242, and 1985 -
Conspiracy. The allegations contained in Paragraphs 1 through 180 of Section IV and in
Paragraphs 1 through 72 immediately above are herein incorporated by reference, the
same as if fully set forth verbatim for any and all purposes of this pleading. BARNES
also pleads causes of action for malicious prosecution under § 1983 and conspiracy under
§ 1985, as well as clear and knowing violations of 18 U.S.C. §241 and 18 U.S.C. §242.
These actions were the result of vindictive behavior by the said Defendants and were not
otherwise supportable.
74. BARNES' constitutional rights were trammeled; she was publicly
defamed, maliciously prosecuted, and summarily banished in direct retaliation for her
1st
exercise of amendment rights, defending her clients zealously, exposing corrupt
practices, and as criminal punishment because of the filing of civil actions for repeated
violations of her civil rights.
75. There is ample evidence of this malicious retaliation and official
misconduct for over a decade preceding these latest retaliatory acts against BARNES for
zealously representing her clients and exposing the rampant and blatant abuses and
violations of constitutional and civil rights, which shows an appearance of vindictiveness
and a "realistic likelihood" of vindictiveness. The essence of prosecutorial vindictiveness
is retaliation by a prosecutor against a defendant for the defendant's exercise of a
constitutional or statutory right, and the chilling effect that such retaliation has on the free
exercise of those rights. In determining whether there is to be a presumption of
unconstitutional pro secutorial vindictiveness, appropriate inquiries must be made of
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whether the situation is one in which there exists a substantial or realistic likelihood of
such a motive. BARNES has previously exercised her constitutional rights, both
individually and on behalf of her clients, with shocking and outrageous reaction by the
county prosecutors, law enforcement and other employees, and elected officials. Each
time after BARNES' prior exercise of a procedural substantive legal right,
WILLIAMSON COUNTY and TRAVIS COUNTY acts to punish the exercise of such
rights, therefore, such actions give rise to a rebuttable presumption of vindictiveness.
75. Immunity was never intended to shield intentional or egregiously bad acts
by prosecutors. Checks and balances in the legal system-- for example, the power of
State Bar Associations to disbar are supposed to prevent abuse. However, numerous
studies have proven this to be a false assumption as prosecutors are rarely sanctioned by
the State Bar for their egregious prosecutorial misconduct. Absolute immunity was never
meant to suppress evidence, dilute police procedure, or violate civil rights. But when
checks and balances within the system refuse to work, then it becomes a blank check on
the use of power.
76. The prosecutors, BRADLEY, MCDONALD, MCCABE, SWAIM,
HOBBS, RYE, who acted in concert and who conspired together against BARNES, do
not enjoy absolute immunity that honest prosecutors acting in good faith would enjoy.
The conspiratorial misconduct here has nothing to do with the proper administration of
justice. It is the antithesis of the administration of justice because it has stripped the
process of structural, fundamental fairness and actually imperils the fair administration of
justice. The court should re-visit absolute immunity for prosecutors because it only
encourages malicious, vindictive, politically-motivated, selective, and retaliatory
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prosecutions and depletes State's resources; as well as a lack of fairness in the adversarial
proceedings.
77. Plaintiffs will prove that Defendants misused and abused and conspired to
abuse and misuse their public offices and the judicial process for political purposes by
investigating and prosecuting BARNES without probable cause and outside the laws of
the State of Texas, knowing that the facts, evidence, and testimony did not support the
criminal charges they prosecuted. A prosecutor and court are not permitted to fabricate
jurisdiction over a citizen for the purpose of inflicting retaliatory, vindictive, and
1st
malicious injury and harm to liberty and property interest to cause a chilling effect on
4th 5th 6th 8th 14th
amendment rights and a nullification of , and amendment rights.
Defendants acts of engaging in a criminal conspiracy without any arguable basis that
there was a crime committed merely to injure another does not vest the court with any
lawful jurisdiction; and when that fabrication of jurisdiction is the result of a political
1st
motivation, or in retaliation against a citizen for their free exercise of their amendment
rights, then their conduct is removed from the scope of activities shielded by absolute
immunity. These actors cannot be assumed to be acting on behalf of the State or any
legitimate government or "with colorable authority" when they so clearly, blatantly,
deliberately, knowingly, and intentionally violate their oaths of office, the United States
Constitution, the Texas Constitution, and the laws they profess to enforce. This is not a
country or State of dictators or monarchies or oppressors, but one of laws, and no person
should use an office of public trust to place himself above the laws and Constitutions. No
man or set of men should be allowed to do what the State cannot do because this would
be acting outside the scope of official authority. There is no legitimate "advocative
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misconduct" because any "advocative conduct" would necessarily be based upon
deliberate and intentional "investigative misconduct" and deliberate and intentional
constitutional violations and unlawful conduct that was fabricated and orchestrated in
order to maliciously abuse process and violate the Constitutional Bill of Rights.
78. The State of Texas is simply not free to maliciously, vindictively, or
selectively prosecute its citizens or fraudulently manipulate and abuse the grand jury
process, and counties cannot do what the State of Texas is not free to do. Plaintiffs will
prove that these malicious prosecutors pursued the charges pursuant to a criminal
conspiracy to harm, injure, and damage Plaintiffs for political, retaliatory, and personal
animosity reasons. Plaintiffs will prove that Defendants misused and abused their law
enforcement authority and the judicial process to pursue a series of maliciously motivated
investigations and prosecutions without probable cause in an effort to discredit, demean,
and dehumanize BARNES and cause irreparable harm to her family, business, reputation,
practice, and property. Plaintiffs will prove that these malicious prosecutors never had
probable cause to vindictively pursue BARNES or to support the charges they
intentionally reported to the media or the counts charged, and that, throughout the
investigation of the cases, they were aware that inculpatory evidence was suborned,
manufactured, manipulated, or contrived, and at the same time that they were
disregarding, failing to preserve, destroying, andlor suppressing exculpatory evidence.
Defendant never had any evidence to support any of these charges, and their sole purpose
was to secure a career-ending, embarrassing indictment and media frenzy to permanently
mar BARNES' reputation due to the Internet. Plaintiffs will prove that Defendants acted
outside the scope of their official duties in conducting a maliciously motivated "witch
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hunt" that was motivated by sexual and political animus, initiating and continuing to
prosecute in the absence of probable cause as an artifice to continue to harm, injure,
damage, embarrass, humiliate, demean, dehumanize, and defame BARNES personally
and professionally. Defendants repeatedly misused and abused their authority and the
judicial process to advance their own malicious, political agenda with extreme hatred and
prejudice towards a female competitor who opposed their corrupt practices and routine
abuses based on race, sex, or socio-economic status prejudice. The Defendants' conduct
falls outside the scope of their official duties.
79. BARNES had a right not to be deprived of liberty or property as a result of
any governmental misconduct occurring in the investigative phase of a criminal matter.
The prosecutors conspired throughout the pre-indictment phases of these multiple arrests
and prosecutions to cause a sequence of events that would result in the injury, damages,
and losses ultimately sustained by BARNES, her children, and her clients; and these
injuries, damages, and losses were not only reasonably foreseeable consequences of the
vindictive and malicious actions, but were the intended result and object of the
conspiracy.
80. Defendants GITTEL, POPPA, BRINKMANN, WILSON, FOSTER,
HERNANDEZ, RICHTER, TRAVIS, BOGAN, NEWELL, HUGHEY, WAGGONER,
BARTZ, DE LA VEGA, HOBBS, BRADLEY, MCCABE, and MCDONALD, acting
under color of state authority, maliciously charged BARNES with aggravated assault
with a deadly weapon on a pubic servant, and tendered false information concerning said
charges to the court and media in order to lead the court and the public to believe that
probable cause existed when there was none, create an irreparably harmful media frenzy,
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and cause another false arrest and imprisonment of BARNES.83
81. Defendants TUMLINSON, KLEKAR, and HAMILTON, acting under
color of state authority, maliciously charged BARNES with aggravated assault against a
public servant, and tendered false infonnation concerning said charges to the court and
media in order to lead the court and the public to believe that probable cause exists when
there is none and to create an irreparably harmful media frenzy and to cause another false
arrest and imprisonment of BARNES.
82. Defendants DE LA VEGA, WILSON, BR1NKMANN, WILSON,
FOSTER, HERNANDEZ, RICHTER, TRAVIS, BOGAN, FOSTER,, NEWELL,
HUGHEY, WAGGONER, and HOBBS, acting under color of state authority,
maliciously charged BARNES with filing a false police report and making a false alarm,
and tendered false information concerning said charges to the court and media in order to
lead the court and the public to believe that probable cause exists when there is none and
to create an irreparably harmful media frenzy and cause another false arrest and
imprisonment of BARNES.
83. Defendants TUMLINSON, KLEKAR, HAMILTON, ESCAMILLA, and
SWAIM, acting under color of state authority, maliciously charged BARNES with a
interference with the duties of a public servant, and tendered false information
83
Ramos v. City of New York, 729 N.Y.S.2d 678, 696 (App. Div. 1st Dept. 2001); See Andrea Elliott, City
Gives $5 Million to Man Wrongly Imprisoned in Child's Rape, N.Y. Times, Dec. 16, 2003, at B3; See Jim
Dwyer, Prosecutor Misconduct, at a Cost of $3.5 Million, N.Y. Times, Oct. 22, 2008, at A27; Leka v. City
of New York, 04-civ-8784 (S.D.N.Y. 2004), Stipulation of Settlement filed March 3, 2008; Benjamin
Weiser, Settlement for Man Wrongly Convicted in Palladium Killing, N.Y. Times, March 30, 2009, at A19
(also noting that the state of New York separately paid plaintiff $600,000 on a parallel action brought under
the state's Unjust Conviction Act); Zahrey v. Coffey, 221 F.3d 342, 353 (2d Cir. 2000); Burns v. Reed, 500
U.S. 478, 492 (1991); Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); Thompson v. Connick, 2005 WL
3541035 (E.D. La. Nov. 15, 2005), aff'd 553 F.3d 836 (5th Cir. 2008); and aff'd by equally divided court
en banc 578 F.3d 293 (5th Cir. 2009); Walker v. City of New York, 974 F.2d 293 (2d Cir. 1992);
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concerning said charges to the court and media in order to lead the court and the public to
believe that probable cause exists when there is none and to create an irreparably harmful
media frenzy and to cause another false arrest and imprisonment of BARNES.
84. 1983 - Malicious Abuse of Process and Pretrial Captivity, and 1985
Conspiracy. The allegations contained in Paragraphs 1 through 180 of Section IV and
in Paragraphs 1 through 83 immediately above are herein incorporated by reference, the
same as if fully set forth verbatim for any and all purposes of this pleading. BARNES
also pleads causes of action for malicious abuse of process, including but not limited to,
the malicious abuse of process under T.C.C.P. art. 46B and Texas Health and Safety
Code, Title 7, Subtitle C, Chapter 574, as more fully set forth herein.
85. 42 USC 1985(2) Conspiracy. The allegations contained in Paragraphs 1
through 180 of Section IV and in Paragraphs 1 through 84 immediately above are herein
incorporated by reference, the same as if fully set forth verbatim for any and all purposes
of this pleading.
86. Defendants conspired against BARNES for the purpose of impeding,
hindering, obstructing, or defeating the due course of justice with the intent to deny to
BARNES the equal protection of the laws, and to injure her, her property, her practice of
law, her reputation, and her familial relations simply because she lawfully enforced, or
attempted to enforce, the right of clients and a distinct class of persons, to the equal
protection of the laws. BARNES' clients were minorities, innocent citizens who were
being vindictively or selectively prosecuted, or citizens who were discriminated against
or prosecuted for political or economic reasons. BARNES did not plea bargain because
Pottcrwattamie County v. McGhee (Fabricating evidence to convict an innocent person was clearly
established at the time of the misconduct in 2010 and 2011. See, Mooney v. Holohan, 294 U.S. 103 (1935)).
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her clients were not guilty as charged or were being denied equal protection under the
law. BARNES did not cower or kowtow to the bullying and attempts to intimidate, and
was, therefore repeatedly and habitually subjected to retaliatory harassment, defamation
per Se, false arrests, and annoying attitudes from certain politically oriented people and
employees subject to their control and influence.
87. The aim of the conspiracy was to inflict serious injury, damage, and harm;
and then to create an impenetrable circle of impunity, with everyone culpable but no one
accountable. Each defendant pointing to the other as a superceding intervening cause,
when in reality, they were all involved in the conspiracy, and, therefore should be jointly
accountable for all of the reasonably foreseeable consequences of their concerted actions.
First, they jumped at any chance to charge BARNES with a crime, then over-charged it to
make it a first degree felony, sensationalized it in the media with false PC affidavits so
that BARNES is deprived of the presumption of innocence, tried in the media, and denied
a fair trial before a fair and impartial jury. Then, the manipulate the judicial process,
including the grand jury process, and gain control over the proceedings with "visiting
judges" and court-appointed lawyers they know are incompetent, lazy, unethical, or all of
the above in order to completely deprive BARNES of her constitutional rights. Lastly,
maliciously abuse process to indefinitely banish BARNES without a trial.
88. Due to the deliberate misinterpretation and misapplication of Tex. C.C.P.
art. 46B and blatant violations of Tex. Health & Safety Code, Title 7, Subtitle C, the
Texas Constitution, Art. I, § 3, 3a, 8,9, 10, 11, lib, 12, 13, 14, 15, 15-a, 16, 19, 20, 23,
27, 28, and 29, and the 1st, 4th 5th 6th, 8th,
and 14th Amendments to the United States
Constitution, BARNES is being unconstitutionally held against her will in captivity since
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February 28, 2011, and has incurred hospital bills in excess of $200,000.00; lost her close
relationship with her children (not even allowed any physical contact with her children,
one a minor, for over a year); lost personal property, assets, and income in excess of
$350,000.00; lost accounts receivables in excess of $150,000.00; lost her real lawyers and
retained expert witnesses; lost her law practice, long-established phone numbers,
websites, domain names, and bank accounts; and lost her reputation. It took the
combined action of all the defendants, aided and assisted by the mass media
sensationalism and defamation per Se, to create the result of such an extended indefinite
pretrial deprivation of liberty and imposition of such a cruel and unusual punishment in
lieu of BARNES' constitutional right to a speedy trial before a fair and impartial jury.
There was never an independent, detached, and neutral intervening decision-maker to
break the causal chain because the co-conspirators deliberately avoided any independent
judgment or outside, objective, over-sight.
89. BARNES was also deprived of equal protection under the law when
Defendants unilaterally modified and then breached two separate $50,000.00 surety bail
bond contracts. These two separate excessive and punitive surety bail bonds extracted
$10,000.00 cash from BARNES; and after being coerced to part with $10,000.00 in cash,
there was a complete failure of consideration because BARNES was deprived of the
benefit of the bargain due to the unilateral breach of contract and intentional impairment
of the contract by Defendants, WILLIAMSON COUNTY, TRAVIS COUNTY,
BRADLEY, MCCABE, MCDONALD, SWAIM, ESCAMILLA, MORGAN, SAENZ,
GUERRERO, CARNES, SHAVER, ANDERSON, BR1NKMANN, and DE LA VEGA.
Said Defendants never intended to keep their end of the bargain or deliver as represented
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because they immediately began breaching it. The excessive and punitive bond amounts
were merely to injure, harm, and deprive BARNES of funds for her defense.
90. It would be a perverse doctrine of tort and constitutional law that would
exonerate the wrongdoer who enlists himself in a scheme to deprive a person of liberty,
just because subsequent wrongdoers built upon the initial intentional wrong. The
lengthy, indefinite, extended pretrial detention, imposition of cruel and unusual
punishment, defamation, and the deprivation of BARNES' substantial liberty interest84
was the object of the conspiracy and the legally cognizable result of the concerted actions
of the Defendants and the deliberate misconduct of the perjury, fabrication of evidence,
and suppression and destruction of exculpatory evidence. It was reasonably foreseeable
that these concerted actions would be used against BARNES and ultimately deprive her
of her liberty for the rest of her life. All defendants acted in concert to overcharge
1st
BARNES and obtain a degree felony indictment, knowing under their scheme, they
could incarcerate BARNES for the rest of her life without any evidence or a jury trial or
any semblance of due process.
84
As the Supreme Court of Illinois acknowledged, "it is well settled that detention of an individual at a
mental health care facility implicates a substantial liberty interest" (Radazewski v. Cawley, 639 N.E.2d
141, 143 (Ill. 1994)). A defendant found "incompetent to stand trial" (regardless of whether he obtained
due process and the requisite jury trial as provided under Texas Health & Safety Code, Title 7, Subtitle C,
or not), is subject to as many years in a mental health facility as the maximum potential prison sentence for
a defendant found guilty of the same charged offense. BARNES is being detained against her will in a
mental health facility and could potentially spend the rest of her life there, without ever receiving any
semblance of due process or due course of law. Therefore, a substantial liberty interest-a potentially long-
term confinement in a mental health facility-is implicated following a finding of "incompetent to stand
trial." See People v. Marshall, 273 Ill.App.3d 969, 974-75, 210 1ll.Dec. 318, 652 N.E.2d 1294 (1995) (a
substantial liberty interest is implicated when one is detained in a mental health facility). In addition,
BARNES will continue to bear the inherent stigma associated with the underlying factual allegations as
well as a civil commitment in a mental health facility requiring inpatient care reserved only for mental
patients who pose a danger to themselves or others! BARNES was also denied equal protection under the
law because the writ of habeas corpus was suspended and the writ of right relief denied to BARNES.
BARNES is also being deprived of equal protection under the law because BARNES was deprived of her
right to appeal the commitment. BARNES is also being deprived of equal protection under the law because
she is being held to a completely different standard and criteria for competency than other defendants
similarly situated.
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91. In order to employ this malicious Star Chamber scheme, all these co-
conspirators needed was a bare outrageous accusation. Just one single accusation,
without any corroborating evidence, was sufficient to accomplish the object of the
conspiracy because the law could be abused to set up a Star Chamber with the use of the
"visiting" judge system where the accused cannot even object, strike, or recuse the hand-
picked oppressor and with the use of the court-appointed attorney system where they
force a court-appointed lawyer on the accused then revoke the bond without just cause or
due process, knowing the court-appointed lawyer, also hand-picked, will waive all of the
accused's rights and work with the malicious prosecutors to create the missing motive,
destroy the defense, deprive the accused of their right to a jury trial, further sensationalize
the defamation per se accusations, and allow the malicious prosecutors to impose any
punishment they desire because the Texas Department of State Health Services works
hand-in-glove with the courts and prosecutors, fabricating any diagnosis or finding and
instituting any "treatment" they want.85 All without any objective standards or means for
the accused to seek redress or due process because there is absolutely no presumption of
85
In this case, the malicious prosecutors dictated the diagnosis of "delusional disorder" and BARNES is
being indefinitely detained in hostile captivity because it is "implausible" that there would be a conspiracy
against her and because she is not "rationally competent" when she insists upon her right to a jury trial and
will not plea bargain and because she refuses to change her opinion about SCHREIBER and agree to follow
his advice to plea bargain. Thus, although BARNES has made lOOs on all the objective examinations and
been found to be factually competent, she has been deemed "rationally incompetent" (without any objective
tests or scientific methodology), because of her beliefs and desired defense. Those who are thrown into the
TDSHS system must agree to plea bargain and surrender their right to a jury trial; follow the dictates of the
court-appointed attorney and surrender their right to their own defense; and take anti-psychotic drugs, or
they will remain "incompetent to stand trial." BARNES has refused to surrender her constitutional rights
and has insisted upon them, and for that reason alone, will remain "incompetent to stand trial." One
remains "incompetent to stand trial" until they agree to surrender and waive their right to a jury trial; and
that was not ever envisioned by the Supreme Court in Dusky v. United States, 362 U.S. 402 (per curiam
1960). This unequal protection under the law is occurring all over the country because over 50 years later,
the Dusky standard remains ambiguous and not clearly defmed, which lends itself to an arbitrary and
capricious application. See also Drope v. Missouri, 420 U.S. 162, 171 (1975).
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innocence within the DSHS. The treatment of "incompetents" is far harsher and more
restrictive than the treatment of NGRIs.
92. Defendants, acting in concert under color of law and with the aid and
assistance of the mass media, falsely and maliciously charged BARNES with a felony
assault on a public servant (knowing it was not true), followed by an equally malicious
and false charge of aggravated assault with a deadly weapon on a public servant, with
WILLIAMSON COUNTY, WCSD, TCSD, TUMLINSON, FOSTER, HOBBS,
BR1NKMANN, SWAIM, and others intentionally painting a false picture of BARNES as
a "very disturbed, crazy, lone-wolf radical, having trouble with authority, refusing to
participate in the Census count, living in a secluded compound, shooting at neighbors and
trespassers, stock-piling weapons, and going to Republic of Texas meetings" and they
continued to embellish their distorted cognitive schema by stating that BARNES "had a
complete break with reality," was "DANGEROUS" and needed "FORCED
MEDICATION". To support these false and malicious allegations, HOBBS, MCCABE,
BRADLEY, MCDONALD, SWAIM, WCSD, and WILLIAMSON COUNTY used the
numerous prior retaliatory and false arrests of BARNES as evidence against her, when in
reality they were the cumulative wrongful acts and misconduct of WCSD and
WILLIAMSON COUNTY, HOBBS, RYE, and others employed by WILLIAMSON
COUNTY. MCCABE, BRADLEY, MCDONALD, BRINKMANN, WCSD, and
WILLIAMSON COUNTY presented false information concerning said charges to the
Grand Jury which led that entity to believe that probable cause exists to indict when there
was none. BARNES was deprived of a jury trial and forced to incur defense fees,
expenses, and costs. BR1NKMANN, MCCABE, and DE LA VEGA committed
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aggravated perjury to advance this conspiracy in violation of § 1985 and to testify
knowing they were going to put on perjured testimony to the jury in a malicious effort to
convict BARNES to cover-up for their own wrong-doing and illegal activity.
93. As pointed out in Watson v. State, 760 S.W.2d 756, 759 (Tex.App.-
Amarillo 1988, pet. ref d), "[t]he essence of prosecutorial vindictiveness is retaliation by
a prosecutor against a defendant for the defendant's exercise of a constitutional or
statutory right, and the chilling effect that such retaliation has on the free exercise of
those rights." In determining whether there is to be a presumption of unconstitutional
prosecutorial vindictiveness, appropriate inquiries must be made of whether the situation
is one in which there exists a substantial or realistic likelihood of such a motive. For
example, after the defendant's prior exercise of a procedural substantive legal right, the
prosecutors' acts to punish exercise of such rights, such actions give rise to a rebuttable
presumption of vindictiveness. United States v. Johnson, 91 F.3d 695 (5th Cir.1996);
United States v. Ward, 757 F.2d 616, 620 (5th Cir.1985).
94. 1983 - Clearly or Firmly Established Constitutional Rights. See
Brief and Heightened Pleadings in Support of Plaintiff's Third Amended Original
Complaint, filed in this cause, which is incorporated herein by reference the same as if set
forth at length. It is firmly established that a constitutional right exists not to be deprived
of liberty or property on the basis of perjury or false evidence fabricated by a government
officer. See Scotto v. Almenas, 143 F.3d 105, 113 (2d Cir.1998) (parole officer); Ricciuti
v. N.Y.C. TransitAuthority, 124 F.3d 123, 130 (2d Cir.1997) (police officers); White, 855
F.2d at 961 (same). There is ample pre-1997 (the year this conspiracy started with the
first false arrest and cover-up) authority, "When a police officer creates false information
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likely to influence a jury's decision and forwards that information to prosecutors, he
violates the accused's constitutional right to a fair trial. . . ." Ricciuti 124 F.3d at 130; see
also Malley, 475 U.S. at 346 n. 9, 106 S. Ct. 1092 (arrest unconstitutional if police officer
obtained warrant from judicial officer on the basis of evidence that "no officer of
reasonable competence" would have considered sufficient). It has also long been
established that a prosecutor who knowingly uses false evidence at trial to obtain a
conviction acts unconstitutionally. See Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct.
1173,3 L.Ed.2d 1217 (1959); Pyle v. Kansas, 317 U.S. 213,216,63 S.Ct. 177,87 L.Ed.
214 (1942); Mooney v. Holohan, 294 U.S. 103, 112, 55 S. Ct. 340, 79 L. Ed. 791 (1935).
These cases serve to inform every prosecutor that his knowing use of false evidence is
unconstitutional. Any prosecutor aware of these cases would understand that fabricating
evidence in his investigative role violates the standards of due process and that a resulting
loss of liberty is a denial of a constitutional right. BARNES had a right not to be
deprived of liberty as a result of fabrication of evidence and that right was clearly
established in 2010.
95. The Fourth Amendment proscribes unreasonable seizure of any person,
person's home (including its curtilage) or personal property without a warrant. A seizure
of property occurs when there is meaningful interference by the government with an
individual's possessory interests, Soldal v. Cook County, 506 U.S. 56, 61, 113 S. Ct. 538,
543 (1992), such as when police officers take personal property away from an owner. The
Amendment also protects against unreasonable seizure of their persons, including a brief
detention. United States v. Mendenhall, 446 U.S. 544, 551, 64 L. Ed. 2d 497, 100 5. Ct.
1870 (1980).
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96. The government may not detain an individual even momentarily without
reasonable, objective grounds, with few exceptions. His refusal to listen or answer does
not by itself furnish such grounds. United States v. Mendenhall, 446 U.S. 544, 100 S. Ct.
1870 (1980). A person is seized within the meaning of the Fourth Amendment when by
means of physical force or show of authority his freedom of movement is restrained, and
in the circumstances surrounding the incident, a reasonable person would believe that he
was not free to leave. United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870 (1980).
Florida v. Royer, 460 U.S. 491, 497-98, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983);
Dunaway v. New York, 442 U.S. 200, 210 n. 12, 99 S. Ct. 2248, 2255 n. 12, 60 L. Ed. 2d
824 (1979). A search or seizure is generally unreasonable and unconstitutional, if
conducted without a valid warrant, Maryland v. Dyson, 527 U.S. 465 (1999), and the
police must obtain a warrant whenever practicable. Andrews v. Fuoss, 417 F.3d 813 (8th
Cir. 2005).
97. 1983 INJUNCTIVE RELIEF SOUGHT. The allegations contained
in Paragraphs 1 through 180 of Section IV and in Paragraphs 1 through 96 immediately
above are herein incorporated by reference, the same as if fully set forth verbatim for any
and all purposes of this pleading.
98. BARNES seeks injunctive relief against the prosecutors, MCCABE,
MCDONALD, BRADLEY, and SWAIM, the "visiting judge" SHAVER, and the court-
appointed lawyer, SCHREIBER, to cease and desist their criminal conspiracy and set
aside the ill-begotten commitment orders and secure BARNES' immediate release from
captivity and restore her pretrial liberty. BARNES further seeks injunctive relief against
Texas Department of State Health Service to cease and desist with aiding and abetting
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these malicious prosecutors by pretending that BARNES is incompetent to stand trial
because the standard does not require that BARNES be willing to plead guilty, follow the
directions of the court appointed lawyer, or stop believing that there is a conspiracy
against her in order to be competent to stand trial. BARNES seeks injunctive relief to
reinstate her surety bail bonds as they existed on February 27, 2011, and restore her pre-
trial liberty.
99. 1983-42 Usc 1988 Attorney's Fees, Expert Fees, costs of court
Recovery. The allegations contained in Paragraphs 1 through 180 of Section IV and in
Paragraphs 1 through 98 immediately above are herein incorporated by reference, the
same as if fully set forth verbatim for any and all purposes of this pleading.
100. The Civil Rights Attorney's Fees Awards Act of 1976 provides that one
who prevails in a section 1983 action is entitled to recover attorneys' fees. Prevailing
plaintiffs are entitled to recover attorneys' fees unless special circumstances would render
such an award unjust. BARNES is seeking recovery of her attorney's fees, court costs,
and expenses in bringing and presenting these claims.
SECOND CLAIM FOR RELIEF - - Racketeer Influenced and corrupt
Organizations Act
[18 U.S.0 §196i et seq.
1. BARNES realleges and incorporates herein by reference the allegations
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WILLIAMSON COUNTY Defendants and all of them, jointly and severally, as follows:
FlalniltIs .vii snow that wllhen a ttteen-vear penoil, w !LLiAi\1U-I\
COUNTY, WCSD, CARNES, ANDERSON. HOBBS, RYE, BRADLEY, MCCABE.
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197
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have been joined by the other WILLIAMSON COUNTY Defendants, and other
employees and deputies of WILLIAMSON COUNTY, as well as SCHEFFLER,
SHAVER, AND SCHREIBER. BARNES and her children have been significantly
harmed and damaged in their persons and property by the actions of this enterprise, and
they now seek recovery for the damages caused as well as a forfeiture of all the ill-
begotten gains; specifically WCSD, WILLIAMSON COUNTY, and all its employees,
deputies, agents, representatives, prosecutors, and court-appointed lawyers and experts,
named as Defendants herein should forfeit all the revenue each obtained as a result of the
illegal activities to Plaintiffs and Plaintiffs should recover treble damages, legal fees, and
costs of court.
3. Plaintiffs will show significant patterns of behavior over said fifteen-year
period, which includes, but is not limited to, obstruction of justice, fraud, theft,
kidnapping, false arrests, false imprisonment, assaults, threats, extortion under color of
authority, fraudulent schemes and artifices, false pretenses and representations, and
deprivation of the right of citizens to the honest services of their elected local officials.
4. The U.S. Supreme Court has instructed federal courts to follow the
continuity-plus-relationship test in order to determine whether the facts of a specific case
give rise to an established pattern. Predicate acts are related if they "have the same or
similar purposes, results, participants, victims, or methods of commission, or otherwise
are interrelated by distinguishing characteristics and are not isolated events." (Hi Inc. v.
Northwestern Bell Telephone Co.) Continuity is both a closed and open ended concept,
referring to either a closed period of conduct, or to past conduct that by its nature projects
into the future with a threat of repetition.
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5. Anti-SLAPP (strategic lawsuit against public participation) laws can be
applied in an attempt to curb alleged abuses of the legal system by individuals or
corporations who utilize the courts as a weapon to retaliate against whistle blowers,
victims, or to silence another's speech. RICO is alleged because Plaintiffs will show that
said Defendants and governmental employees conspired and collaborated to concoct
fictitious legal complaints and charges solely in retribution and retaliation against
BARNES for her speech, affiliations, and practice representing clients who are being
maliciously prosecuted. In maliciously pursuing BARNES, Defendants violated the
following federal laws:
18 U.S.C. § 1512
18 U.S.C. § 1513
18 U.S.C. § 241
18 U.S.C. § 242
1st
6. Commencing on or about the day of June 1997, and continuing through the
present, Defendants acting together and in necessary concert with others as part of an
association-in-fact, conducted and conspired to conduct a fraudulent scheme and
enterprise through a pattern of illegal racketeering activity, specifically a scheme,
furthered by use of wires and mails, to defraud and obtain property, monies, reputation,
and rights under fraudulent pretenses from BARNES and to force BARNES to incur and
suffer substantial debts, damages, injuries, and losses based upon her speech, affiliations,
beliefs, sex, race, creed, and social class, in violation of 18 USC § 1512, 1513, 241, 242,
1341 & 1343 and 18 USC 1962 (c) and (d). The defendants and each of them knowingly
and willfully devised, conducted, and conspired to conduct, a scheme and artifice to
Case 1:12-cv-00028-LY Document 18-3 Filed 07/16/12 Page 39 of 53
defraud, injure, and harm BARNES based upon their desire to punish BARNES' speech,
affiliations, and practices, and upon racial prejudice, sexual hatred, prejudice based on
creed and social standing, and desire for unjust enrichment through numerous false and
fraudulent pretenses, representations and promises, among others:
a. Soliciting individuals in key positions to aid, assist, and participate in the
fraudulent, illegal, and unethical schemes or to cover-up and conceal the
schemes or wrongful conduct of their coconspirators, and to use and abuse
these positions of power, influence, and control to harass, intimidate,
threaten, coerce, obstruct, and retaliate against BARNES by appealing to
the sexual stereotypes against female lawyers, sexual prejudices, racial
prejudices, and social class prejudices of these individuals to further their
fraudulent scheme for their own unjust enrichment by misusing and
manipulating the press and media, knowing it would result in permanent
defamation on the Internet;
b. Demanding and increasing the punishment, through abuse of power to
arrest, revoke bonds, and increase or deny bonds, in order to gain
compliance, submission, or conformity from BARNES to protect their
own individual interests and to cover-up and hide their illegal and
unethical activity;
c. Soliciting individuals to participate with implied assurance of their
continuing employment and advancement with benefits in a government
job and with the implied threat of lack of employment or advancement in a
government job;
d. Using and abusing their position of public trust and standing in the
community to enlist the aid of others to retaliate against, damage, injure,
and punish another for protected speech and exposure of public
corruption;
e. Using and abusing their elected offices and positions in the community to
injure, harm, damage, and punish another and to costs them or force them
to incur excessive fees for no good faith reason, and then to deprive them
of their familial relationships, reputation, and liberty;
f. Using and abusing their elected offices and positions in the community to
commit crimes and engage in fraudulent, deceptive, illegal,
unconstitutional, and criminal activity to the harm and detriment of
members of a suspect class based upon improper prejudices and hatred;
g. By sending memorandum and other communications to solicit the aid,
Case 1:12-cv-00028-LY Document 18-3 Filed 07/16/12 Page 40 of 53
assistance, and participation of others in their retaliatory schemes against
their intended targets;
h. Masking and concealing from their victims information which would
reveal that charges are false or evidence is fabricated or testimony is
perjured, including exculpatory evidence, which would reveal the truth
and restore their freedom, in order to coerce them into a plea bargain so
they pay fines and costs to the system, to facilitate the Defendants'
fraudulent schemes, or to cover-up and hide the fraudulent schemes, in
order to secure their elected office or employment rank/income; and
i. Using the U.S. mails, and interstate wires via telephone and facsimile
transmissions to execute such schemes.
THE FRAUDULENT SCHEME
7. During the above described period, the Defendants intentionally,
knowingly, and maliciously violated the law and confiscated property and funds legally
belonging to BARNES. The use of the media, false PC affidavits, and malicious abuse of
process under CCP art. 46B and Texas Health and Safety Code, Title 7, Subtitle C, were
essential and integral parts of these fraudulent scheme to deprive BARNES of her rights
as a citizen and deprive her of her liberty.
8. Defendants, WCSD and the defendant deputies, HOBBS, RYE,
BRADLEY, MCCABE, MCDONALD, CARNES, ANDERSON, BRINKMANN, and
SCHEFFLER have engaged in patterns, habits, and customs of racial and/or sexual
prejudice and hatred as well as obstruction and retaliation for those who might expose
their civil rights' and constitutional rights' violations. BARNES, by virtue of her license
to practice law and her livelihood of representing citizens of this State and nation in the
courts of Travis and Williamson Counties, has become aware (through personal
observations and experiences) of certain unconstitutional habits, practices, customs,
policies and procedures employed by certain law enforcement agencies, prosecutors, and
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elected officials that are unconstitutional and unlawful. Due to BARNES' diligent and
honest representation of her clients, (members of suspect classes based on race and/or sex
and/or political beliefs or associations), and BARNES' refusal to supply funds and favors
to certain elected officials, and BARNES' constant exposure of such corruption and
refusal to sell-out her clients, BARNES has become the relentless target of dishonest
prosecutors and elected officials who resent BARNES' speech, associations, and activity.
9. BARNES, her children, and her clients were systematically retaliated
against by BARNES' competitors in restraint of trade because she had objected to and
threatened to report and did report official misconduct, wrongdoing, or malfeasance on
the part of public officials, including allegations of criminal behavior.
10. When BARNES exposed and threatened to expose the corruption,
Defendants retaliated, and enlarged the conspiracy to effectuate a malicious and
retaliatory scheme to further defraud, damage, and injure the Plaintiffs and
BARNES' clients. As part of a on-going scheme, the Defendants intentionally pretended
to be acting in a lawful and ethical manner, and then when questioned or exposed turned
the attack on BARNES, her family, and her clients and illegally converted her assets for
their own use and unjust enrichment and then grossiy inflated the costs of bail bonds for
pretrial release, exposed her property to theft and destruction, and intentionally enlisted
others to put undue financial pressure on Plaintiffs when there was no legitimate
governmental interest in piling on exorbitant pretrial punishment.
11. Tn particular, and as a part of the on-going scheme, the more BARNES
fought to obtain the exculpatory evidence they so craftily attempted to hide, the angrier
and more vengeful they became. It was clear that their intent was to beat BARNES into
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silence and submission so that their crimes would not be exposed. They took direct
action to ensure that BARNES would not receive a fair trial, or any trial, and would not
receive legal representation, so that their vicious scheme would succeed and they would
be rid of BARNES and her credibility would be destroyed so that no one would listen to
her or believe her and so that she could never run against these corrupt elected officials.
Defendants acted in concert to ensure that no legal counsel would come in to represent
BARNES by getting SCHREIBER to so hopelessly destroy the defense and screw up the
case, and to prevent any chance of reasonable discovery or pretrial preparation, or any
hope of a fair trial. These Defendants knew that their actions and positions would
reasonably prevent BARNES from obtaining competent legal counsel, prevent her from
conducting meaningful discovery and adequately preparing for trial, and prevent her from
putting on her best defense. These Defendants acted deliberately, knowingly and
intentionally in this regard with utmost malice and ill will. All the actions and conduct
occurred behind closed doors or in telephonic conversations that were obscured and
concealed from BARNES, despite having sought and obtained a court order to prevent
such ex parte communications.
12. These Defendants have engaged in this pattern of fraudulent conduct and
racketeering activity for a period of many years. These Defendants have controlled this
area for decades utilizing these same oppressive tactics and abuses of office against the
citizens of this State. This has been an on-going pattern, practice, and custom for decades
and as such constitutes racketeering activity to control the wealth and development of the
county, unjustly enrich the members of the conspiracy, and to prevent non-white
individuals from living freely, or advancing or prospering in this county.
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THE CRIMINAL ENTERPRISE
13. The racketeering enterprise, within the meaning of 18 U.S.C. Section
1961, is an association in fact of certain local lawyers, prosecutors, judges, law
enforcement personnel, county employees, and elected officials, including but not limited
to and various employees, agents, and representatives of WILLIAMSON COUNTY,
organized around this local "good ole boy" system in a county still plagued by a rich
KKK history, sexual, racial, and social class prejudices and based on each individual's
and entity's particular function within the enterprise. These various associates function as
a continuing unit of oppression, control, influence, and power utilizing abuses of power
and position, coercion, threats, intimidation, and retaliation.
14. The enterprise hereinafter referred to as WILLIAMSON COUNTY
RETALIATORS, is an entity separate and apart from the pattern of activity in which it
engages, to wit:
a. the enterprise has a distinct structure based on the essential functions of its
members and the elected and social-economic positions they hold in the
county through family name or wealth, business ownership, elected
positions, employment in the criminal justice system, or membership in
overt and covert organizations.
b. the enterprise has employed numerous employees in order to discharge the
functions of the WILLIAMSON COUNTY RETALIATORS, including
the use of tax funds, governmental funds, and public funds to pay
employees and advance the organizational activities.
c. the enterprise has a distinct structure including all of the local Defendants,
and those who they control with the same methodologies.
15. The common purpose of the enterprise was and is to maintain power and
control and escape accountability and liability for violations of the laws and constitutions,
and to make sure that no individual of certain races, sex, and social economic classes
Case 1:12-cv-00028-LY Document 18-3 Filed 07/16/12 Page 44 of 53
advance to any significant position of power or control if they have not been proven to be
supporters of the WILLIAMSON COUNTY RETALIATORS and those members of the
county elite they protect, and any person who attempts to aid and assist members of these
suspect classes are targeted as well. Members of the WILLIAMSON COUNTY
RETALIATORS had no capability or intention to engage in fair, honest, or ethical
conduct or to comply with the Constitutions of the United States or Texas and it is the
policy, habit, practice, and custom of the WILLIAMSON COUNTY RETALIATORS to
disenfranchise, demean, oppress females, persons affiliated with certain organizations or
political groups, and members of minority races and the lower social economic classes as
they have been deemed undesirable and unworthy of protection or due process or due
course of law or equal access in the courts, and the courts are not open to these victims in
WILLIAMSON COUNTY, Texas. Members of the protected elite in WILLIAMSON
COUNTY refer to these actions as "economic cleansing" and they actively target
members of this suspect class. Any lawyer who attempts to advocate for the suspect class
is retaliated against severely and punished without any semblance of due process.
THE PREDICATE ACTS OF MAIL AND WIRE FRAUD
16. Commencing many years ago with roots in the Ku Klux Klan and
continuing through the present, the WILLIAMSON COUNTY RETALIATORS, and
other persons acting in concert with them, did knowingly and willfully devise a scheme
and artifice to persecute individuals of a suspect class based solely upon their sex, race,
or social economic class, and retaliate against any lawyer who zealously represents
members of the suspect class or who exposes the abuses of the WILLIAMSON
COUNTY RETALIATORS, through numerous false and fraudulent arrests, charges,
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incarceration, detentions, searches, seizures, pretenses, representations, promises, acts,
and practices, relating to legal rights, access to the courts, and equal protection of the law,
in violation of 18 U.S.C. 1341, 18 u.s.c. 1343, and 42 u.s.c. 1983, including but not
limited to the following:
a. In commerce and in furtherance of the scheme, these Defendants caused to
be delivered by electronic transmission, mailed using U.S. mails or faxed
or emailed using interstate wires, various defamatory memorandum, legal
opinions and bad faith pleadings designed solely to disenfranchise and
deprive the victims or those who assist them or expose the corruption;
b. expressly represented in numerous lefters, emails, orders, pleadings,
billing statements, imposition of fines and court costs, probation fees, and
collection demands, which these Defendants caused to be delivered by
employees, or mailed using U.S. mails or faxed or emailed using interstate
wires, that deprive and disenfranchise the victims or unjustly enriched the
members of the organization at the expense or to the detriment of the
victims.
THE PATTERN OF UNLAWFUL RACKETEERING ACTIVITY
17. All of the predicate acts of racketeering activity are directly related to the
unjust enrichment of members of the WILLIAMSON COUNTY RETALIATORS at the
expense of and to the detriment of Plaintiffs, and members of the suspect classes based on
race and social economic status, as part of the fraudulent scheme.
18. All of the predicate acts of racketeering activity are part of the nexus of
the affairs and functions of the racketeering enterprise.
19. The individual Defendants were enabled to commit the predicate offenses
by virtue of their position in the enterprise or involvement in or control over the affairs of
the enterprise. Any reference to "Defendants" in this section only applies to the
aforementioned WILLIAMSON COUNTY Defendants.
20. All of the predicate acts of racketeering activity occurred after the
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effective date of 18 U.S.C. Section 1961 et. seq.
21. The predicate acts of racketeering activity began many decades ago and
have been carried on for many years and are continuing.
22. The pattern of racketeering activity is currently ongoing and open ended,
and threatens to continue indefinitely unless this Court enjoins the racketeering activity.
23. Numerous schemes have been completed involving repeated criminal
conduct that by its nature projects into the future with a threat of repetition and the
resulting oppression of the victims, and the minority population specifically.
24. The predicate acts have the same or similar purposes, results, participants,
victims, and methods of commission. The actions have oppressed minorities for years
and excluded blacks from this County due to a systemic and overwhelming racial and
economic prejudice against minorities and the economically disadvantaged by the elite
class.
DEFENDANT'S ASSOCIATION WITH THE RACKETEERING ENTERPRISE
AND PARTICIPATION IN THE PATTERN OF RACKETEERING ACTIVITY.
25. At all times herein the Defendants made numerous interstate telephone
calls and used the U.S. mail, Federal Express and/or facsimile and email transmissions
over interstate telephone lines, in the course of business, for purposes of carrying out the
various schemes detailed supra.
26. Defendants are all associated with the racketeering enterprise and all
benefit from the perpetuation of this privileged organization as part of its business
practices sanctioned by its leaders, often politically elected members, and violated:
a. 18 U.S.C. § 1962(c) by conducting and participating directly in the conduct
of the racketeering enterprise through a pattern of racketeering activity by
committing numerous violations of 42 U.S.C. 1983, 18 U.S.C. § 1343, and
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18 U.S.C. §1341 as detailedherein; and
b. 18 U.S.C. §1962(d) by conspiring to violate provisions of 18 U.S.C.
§1962; and/or 42 U.S.C. 1983 and/or
c. aided and abetted in the commission of at least two predicate offenses
which were part of the pattern of racketeering in violation of the common
law doctrine of aiding and abetting.
27. The affiliated persons or entities were associated with the racketeering
enterprise as its labor supplier and initiators benefited and unjustly enriched the affiliated
persons or entities, and violated:
a. 18 U.S.C. § 1962(c) by conducting or participating directly in the conduct
of the racketeering enterprise through a pattern of racketeering activity by
committing numerous violations of 42 U.S.C. 1983, 18 U.S.C. §1343, and
18 U.S.C. §1341 as detailed inira; and1or
b. 18 U.S.C. §1962(d) by conspiring to violate any of the provisions of 18
U.S.C. § 1962; and/or 42 U.S.C. 1983 and/or
c. aided and abetted the commission of at least two predicate offenses which
were part of the pattern of racketeering in violation of the common law
doctrine of aiding and abetting.
PLAINTIFF'S DAMAGES AND INJURY TO BUSiNESS OR PROPERTY
28. BARNES was injured in her relationships, loss of liberty, business,
practice of law, finances, and property as a direct result of the pattern of racketeering in
that from June 1, 1997 through the present, she has been continually defamed and
maliciously maligned by these Defendants to competitors, clients, friends, and others
with and before whom she conducts business and her trade, and she has been obstructed,
hindered, and further retaliated against in her business activities, she has been
disenfranchised and derived of her constitutional and civil rights, including her privacy
and liberty. This conspiracy has not terminated and is on-going.
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THIRD CLAIM FOR RELIEFTexas--Intentional Infliction of Emotional
Distress and Mental Anguish
1. In support of a pendent state cause of action, the allegations set forth in
Paragraphs 1 through 180 of Section IV are herein incorporated by reference, the same as
if fully set forth verbatim for any and all purposes of this pleading, and further allege as
follows:
2. The claims brought by Plaintiffs under this section only apply to
Defendants, SCHEFFLER, SWAIM, MORGAN, TUML1NSON, CARNES, SHAVER,
BRADLEY, MCCABE, MCDONALD, HOBBS, RYE, WILSON, HAMILTON,
BRINKMANN, HUGHEY, DE LA VEGA, HERNANDEZ, RICHTER, TRAVIS,
BOGAN, FOSTER, WAGGONER, NEWELL, SCHREIBER, ESCAMILLA, COTTON,
LERMA, UNIDENTIFIED THREE, ONE THAT KNOWS, ANOTHER THAT
KNOWS, LIBERALS R. CLUELESS, NATNESON, HURST, ANONYMOUS,
CARGILE, NEWTON, BERGAMO, GITTEL, GRIFFITH, CLIFTON, flUMES,
RUPPART, KXAN, KVUE, and KEYE. Any reference to "Defendants" in this section
only applies to the aforementioned Defendants and does not include their respective
employer-County.
3. As a pendent state cause of action, at all times material and relevant
herein, said Defendants by acts and/or omissions and under color of state law, or as
competitors or news media and reporters, intentionally and/or recklessly inflicted
emotional duress and mental anguish upon Plaintiffs, thereby they claim the tort of
intentional infliction of emotional distress. Plaintiffs allege that the Defendants acted
intentionally and/or recklessly when they maliciously maligned and defamed BARNES,
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unlawfully and maliciously assaulted, kidnapped and maliciously prosecuted BARNES,
and subjected BARNES to unlawful arrests and unconstitutional pre-trial captivity to
deprive her of constitutional rights, and further allege that such conduct was extreme,
shocking, and outrageous. The actions of said Defendants caused Plaintiffs to suffer
emotional distress and mental anguish; and the emotional distress and mental anguish
suffered by them was so severe that it required treatment and no reasonable person should
be expected to endure such abuse and mistreatment.
4. The conduct of Defendants was so outrageous in character, and so extreme
in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized society. SCHEFFLER, HOBBS, RYE, SWAIM,
MORGAN, BRADLEY, MCCABE, MCDONALD, HUGHEY, RUPPART, GITTEL,
TUMLINSON, CARNES, SHAVER, BR1NKMANN, HUGHEY, DE LA VEGA,
HERNANDEZ, RICHTER, TRAVIS, BOGAN, FOSTER, WAGGONER, NEWELL,
SCHREIBER, COTTON, LERMA, UNIDENTIFIED THREE, ONE THAT KNOWS,
ANOTHER THAT KNOWS, LIBERALS R. CLUELESS, NATIVESON, HURST,
ANONYMOUS, CARGILE, NEWTON, BERGAMO, GRIFFITH, CLIFTON, HUMES,
and RUPPART, all exhibited by false accusations, actions, demeanor, and offensive
speech an utmost malicious intent to harm, injure, and damage Plaintiffs.
FOURTH CLAIM FOR RELIEFTexasInvasion of Privacy, Criminal Trespass,
Unreasonable Search and Unreasonable Seizure
1. In support of a pendent state cause of action, the allegations set forth in
Paragraphs 1 through 180 of Section IV are herein incorporated by reference, the same as
if fully set forth verbatim for any and all purposes of this pleading, and further allege as
follows:
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2. Texas courts of law have held that Article 1, Section 9 of the Texas
Constitution may provide greater or less protection than the Fourth Amendment, and the
Texas legislature has enacted many statutory provisions dictating the practices and
procedures that must be followed in making arrests and conducting searches. As a result,
the Texas law of search and seizure is distinctive.
3. On January 8, 2010, BARNES was subjected to an unreasonable search
and seizure. The false PC affidavit and predictable media frenzy violated Plaintiffs' right
to privacy and BARNES' right to be free from unreasonable searches and seizures.
4. On May 8, 2010, BARNES was subjected to a criminal invasion of
privacy, criminal trespass, aggravated assault, anned home invasion, unreasonable search
and seizure, and false arrest without a lawful warrant, probable cause or other lawful
authority in violation of BARNES' rights under the 4th 5th 6th 14th
and amendments to
the United States Constitution and Texas Constitution Art. I, Sections 3, 3a, 9, 10, 19, and
29.
5. On May 11-14, 2010, BARNES was subjected to a false arrest, aggravated
assault, aggravated kidnapping, armed home invasion, burglary of her residence, burglary
of her buildings, and burglary of her vehicles on May 11-14, 2010 without a lawful
warrant, probable cause or other lawful authority in violation of BARNES' rights under
the 4th 5th 6th
and 14th amendments to the United States Constitution and Texas
Constitution Art. I, Sections 3, 3a, 9, 10, 19, and 29. The false PC affidavit and
predictable media frenzy violated Plaintiffs' right to privacy and BARNES' right to be
free from unreasonable searches and seizures.
6. On May 14, 2010, BARNES was subjected to an unreasonable search and
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7. On June 9, 2010, BARNES was subjected to an unreasonable search and
seizure.
8. On June 28, 2010, BARNES was subjected to an unreasonable search and
seizure.
9. On July 9, 2010, BARNES was subjected to an unreasonable search and
seizure.
10. On February 28, 2011, BARNES was subjected to an unreasonable search
and seizure.
FIFTH CLAIM FOR RELIEFTexasFalse Arrest and False Imprisonment
1. In support of a pendent state cause of action, the allegations set forth in
Paragraphs 1 through 180 of Section IV are herein incorporated by reference, the same as
if fully set forth verbatim for any and all purposes of this pleading, and further allege as
follows:
2. Furthermore, the claims brought by Plaintiffs under this section only apply
to Defendants, TUMLINSON, LERMA, KLEKAR, GUERRERO, MORGAN, SAENZ,
SWAIM, BRADLEY, HOBBS, RYE, MCDONALD, MCCABE, SHAVER,
SCHREIBER, BRINKMANN, DE LA VEGA, FOSTER., I{ERNANDEZ, ANDERSON,
Any reference to "Defendants" in this section only applies to aforesaid Defendants and
does not include TRAVIS COUNTY or WILLIAMSON COUNTY.
3. As a pendent state cause of action, at all times material and relevant
herein, said Defendants, by acts and/or omissions and under color of state law, willfully
detained BARNES without her consent and without authority of law. BARNES pleads
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false arrest and false imprisonment as Defendants had the intent to confine her, and
carried out the intent by putting her in a position so that she could not move, let alone
leave by force. Said confinement resulted in harmful detention, without consent, and
without authority of law. Defendants arrested Plaintiff without probable cause.
Defendants did not have probable cause to arrest because the facts and circumstances
within their knowledge were not reasonably sufficient to warrant a prudent officer to
believe that BARNES had committed or was committing any felony or interference with
the duties of a public servant or false report or false alarm. On an objective basis, it is
obvious that no reasonably competent officer would have concluded that the facts
warranted BARNES' detention, much less her arrest or prosecution.
4. Defendants then imprisoned BARNES without just cause. Then, acted
maliciously and in concert to effectuate a fraudulent indictment on BARNES, based not
on the truth, but based upon a convenient conclusion and calculated fabrications accusing
BARNES of shooting at a criminal trespasser. The report initially made by POPPA and
GITTEL did not state a crime in Texas. BARNES was deprived of equal protection, due
process, and due course of law because of the conspiracy. BARNES was eventually
deprived of her rights, liberty, family, and property without any semblance of due process
or due course of law.
5. Thereafter, Defendants acting in concert with a common intent, and
pursuant to a common plan and scheme maliciously prosecuted BARNES, thereby
causing her to incur expenses, fees, and costs in excess of $300,000 to defend against
these false and malicious charges, resulting in financial distress and severe mental
anguish and emotional distress.
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6. Plaintiffs will prove (1) willful detention, (2) without consent, and (3)
without authority of law.86 Absence of adequate justification or authority of law results
in a cause of action for false imprisonment.87 The detention or imprisonment must be
performed with authority of law, free of any fraud or subterfuge, to be valid.88
7. No law enforcement officer, prosecutor, lawyer, or judge could have
reasonably believed that the results of such blatant constitutional violations would
constitute authority of law. The probable cause affidavits were false and fraudulent and
did not correlate to the facts. The magistrate was not neutral and detached. The searches
and seizures were conducted without a valid warrant. Property was wrongfully
confiscated. Bonds were revoked without due process or due course of law.
Incompetent, unethical, and ineffective lawyer was forced on BARNES for the sole
purpose of depriving her of due process, equal protection, due course of law, speedy trial,
jury trial, fairness, liberty, property, family relations, and other valuable and fundamental
rights. Process under Tex. C.C.P. art. 46B was maliciously abused and Tex. Health &
Safety Code, Title 7, Subtitle C was blatantly violated in furtherance of the malicious
conspiracy to deprive BARNES of due process, equal protection, due course of law,
speedy trial, jury trial, fairness, liberty, property, family relations, and other valuable and
fundamental rights.
8. BARNES was subjected to a false arrest89 and false imprisonment on
January 8-9, 2010; May 11-13, 2010; June 9, 2010; June 28, 2010; July 8, 2010; July 9-
February 28, 2011; and February 28, 201 1-current.
86
Sears, Roebuck & Co. v. Castillo, 693 S.W.2d 374, 375 (Tex. 1985).
87
Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).
88
Wal-Mart Stores v. Resendez, 962 S.W.2d 539, 540 (Tex. 1998).
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SIXTH CLAIM FOR RELIEFTexasDefamation
1. In support of a pendent state cause of action, the allegations set forth in
Paragraphs 1 through 180 of Section IV are herein incorporated by reference, the same as
if fully set forth verbatim for any and all purposes of this pleading, and further allege as
follows:
2. Unlike the United States Constitution, the Texas Constitution expressly
guarantees the right to bring reputational torts. The Texas Constitution's free speech
provision guarantees everyone the right to "speak, write or publish his opinions on any
subject, being responsible for abuse of that privilege." Likewise, the Texas Constitution's
open courts provision guarantees that "[a]!! courts shall be open, and every person for an
injury done him, in his lands, goods, person or reputation, shall have remedy by due
course of law." See Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex.2000); see
also Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S. Ct. 2997, 41 L. Ed. 2d 789
(1974). Thus, defamed plaintiffs who need only prove a lower culpability standard than
actual malice may recover compensation for "actual injury." Gertz, 418 U.S. at 349.
However, actual injuries are not limited to out-of-pocket losses. Gertz, 418 U.S. at 350.
"Indeed, the more customary types of actual harm inflicted by defamatory falsehood
include impairment of reputation and standing in the community, personal humiliation,
and mental anguish and suffering." Gertz, 418 U.S. at 350 (emphasis added); see also
Time, Inc. v. Firestone, 424 U.S. 448, 460, 96 S. Ct. 958, 47 L. Ed. 2d 154 (1976). The
Supreme Court stated: "In [Gertz] we made it clear that States could base awards on
elements other than injury to reputation, specifically listing 'personal humiliation, and
89
See Reid v. Georgia, 448 U.S. 438, 440, 100 S. Ct. 2752, 65 L. Ed. 2d 890 (1980) (characterizing arrest as
"curtailment of a person's liberty").
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mental anguish and suffering' as examples of injuries which might be compensated
consistently with the Constitution upon a showing of fault." Time, Inc., 424 U.S. at 460,
96 S. Ct. 958. See Milkovich v. Lorain Journal, Co., 497 U.S. 1, 19-20, 20 n. 6, 110 S. Ct.
2695, 111 L. Ed. 2d 1 (1990); RESTATEMENT (SECOND) OF TORTS § 566 (1977); W.
PAGE KEETON ET AL., PROSSER & KEETON ON THE LAW OF TORTS § 1 13A,
at 813-814 (5th ed. 1984).
3. Defendants, TUMLINSON, KLEKAR, HAMILTON, LERMA,
COTTON, GITTEL, BR1NKMANN, HOBBS, FOSTER, DE LA VEGA, ANDERSON,
CARNES, SHAVER, BRADLEY, MCCABE, MCDONALD, MORGAN, SAENZ,
GUERRERO, and SWAIM intentionally and maliciously caused defamatory statements
to be published to the news media, on the Internet, in the national media, and business
journals knowing the detrimental and destructive impact it would have on BARNES' 25-
year-old business and ability to earn a livelihood and practice law. Defendants did this as
retaliatory punishment of BARNES and to distract from their corrupt, abusive, and
dishonest practices. The media defendants and their employees aided and abetted the
malicious prosecutions, rather than fulfilling their duty to investigate prior to blindly
repeating what they were fed by the malicious prosecutors and bad faith law enforcement
employees. Then, the media defendants intentionally allowed a forum for BARNES'
competitors to made defamatory per se, demeaning, and derogatory comments about her
by hiding behind an alias to conceal their identities, which the media defendants then
protected.
4. Defendants, TUMLINSON, SWAIM, MORGAN, SAENZ, GUERRERO,
HOBBS, FOSTER, DE LA VEGA, BRINKMANN, BRADLEY, MCDONALD,
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MCCABE, and others intentionally made false and defamatory per se statements to the
media knowing it would deprive BARNES of a fair trial and pollute the potential jury
pooi and turn the public against BARNES and hold her up to ridicule, contempt, hatred,
ill-will, and damage her reputation both personally and professionally and harm and
injure her children, tortiously interfere with her business relations, and damage her
clients' cases.
5. Defendants, CARGILE, NEWTON, and BERGAMO, further
sensationalized the written media with dramatic and defamatory video news features.
Representing false and defamatory statements were made by neighbors, when none of
BARNES' neighbors would have made those allegations. None of these "journalists"
made any effort whatsoever to get BARNES side of the incident and published
defamatory per se allegations knowing and intentionally damaging her reputation,
destroying her business, and preventing her from obtaining a fair trial by polluting the
potential jury pool.
6. The video news features were even more defamatory and BARNES will
introduce the video recordings, where the reporters made gross misrepresentations of
material fact to aid and abet the malicious prosecutions, even claiming that BARNES had
routinely fired shots at neighbors, that neighbors were afraid of BARNES, and that
neighbors had trouble with BARNES, when there is no basis whatsoever to these false
accusations made in the media merely to pollute the potential jury pool because these
false accusations are permanently imbued on the Internet. ANONYMOUS even stated
that BARNES had admitted to the crime.
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7. HOBBS and FOSTER immediately gave media interviews solely to
inflame the public, pollute the potential jury pool, publicize clearly inadmissible
defamatory information, comment on the case and disparage BARNES' credibility,
deprive BARNES of a fair trial, and immediately inflict pretrial harm, damage, and injury
on BARNES' businesses, practice of law, treatment before the courts, and ability to earn
a livelihood.
8. FOSTER intentionally made untruthful statements and paraded them as
established facts in order to deprive BARNES of due process, presumption of innocence,
and a fair trial, when he said that he was "[t]otally freaked out. I can't believe this is
happening. This has never happened. She did everything appropriate and the response
was Mrs. Barnes shooting at her five times. Luckily, it did not hit her (the worker)
because we could be working a murder right now." FOSTER told another reporter that
BARNES told GITTEL "to leave after the temporary U.S. Census Bureau employee
knocked on her door Saturday," and that "[s]he was apparently not getting off of her
property fast enough, and Ms. Barnes decided to shoot five rounds in her direction."
FOSTER knew that GITTEL never said that she "knocked on [BARNES'] door
Saturday." Further, FOSTER had no basis for stating BARNES' thought process as if
they were established or admitted by claiming that BARNES "decided to shoot five
rounds in her direction." This was deliberate manipulation of the prosecution to harm,
injure, and damage BARNES.
9. HOBBS had conspired with the prosecutors and WCSD and immediately
published to the media their theory of motive by falsely claiming that BARNES was "a
disturbed individual" and he intentionally and knowingly misrepresented material fact
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about his partner-in-crime, RYE, trespassing on BARNES' property, which started this
entire scenario when he stated that "a visiting judge issued a court order for Rye to go by
her house to drop off evidence for a case, after Barnes refused to pick it up from the
courthouse." HOBBS and RYE knew for a fact that no "visiting judge issued a court
order for RYE to go by her house to drop off evidence for a case" and knew for a fact that
BARNES had not "refused to pick it up from the courthouse." BARNES had repeatedly
made trips to the WILLIAMSON COUNTY Attorney's Office to pick up the audio-video
recordings, but it was RYE who, after first hiding them a claiming they did not exist,
continued to thwart discovery and withhold them for weeks after the "visiting judge"
ordered him to produce them. The transcripts from that case proves this fact and both
RYE and HOBBS knew the truth at the time HOBBS deliberately lied to the media.
Further, HOBBS intentionally defamed BARNES by claiming that "[s]he refuses to
follow any rules or law of the state of Texas on a consistent basis," and that "his office
began dealing with Barnes in 1997 when she was stopped for a traffic violation and had
to be forced from her vehicle," and that "[ut always stems from authority and her
problem with it." HOBBS continued the defamation stating that in the 2003 malicious
prosecution that HOBBS and RYE were both involved in, "[f]inally the officer had to
spike her tires, break her window, remove her from the vehicle" when he knows for a fact
that this is a gross misstatement of material fact because he and RYE were involved in
that malicious prosecution. During the interview, HOBBS sat with a large red file in
front of him and deliberately placed BARNES in a false and defamatory light, and stated
that "she yells, she screams, her attitude is totally inappropriate, constantly has to be
called down by a judge," and "[s]he is becoming more and more aggressive in the
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courtroom, ignoring orders of visiting judges to sit down to let them finish talking, she
becomes physically aggressive in her postures," and other derogatory, demeaning, and
defamatory accusations that he knew were false and misleading, with malice.
10. ONE THAT KNOWS, ANOTHER THAT KNOWS, LIBERALS R.
CLUELESS, NATIVESON, HURST, and ANONYMOUS, with malice and a conscious
disregard and deliberate indifference to the rights, safety, and welfare of BARNES took
advantage of media blogs to intentionally deprive BARNES of due process, a fair trial,
and presumption of innocence by publishing defamatory per se allegations of fact, fueling
and inflaming the public, and polluting the potential jury pool. Anonymity does not
protect individuals from the abuse of speech or allow them to harm, injure, or damage
others under the Texas Constitution, Art. I, § 8° or the Fourth Amendment to the United
States Constitution.
11. BRADLEY, MCCABE, and MCDONALD sent a scathing, malicious
defamatory per se letter to North Texas State Hospital Maximum Security Unit
(hereinafter referred to as MSU-DSHS) solely to dictate the diagnosis and direct the
mistreatment and punishment. The document was four pages and contained scathing,
defamatory pre se statements and was false and misleading, written to leave the
impression that BARNES had actually engaged in all the conduct as stated in the false
arrests and malicious prosecutions. The false accusations were presented as facts because
BRADLEY, MCCABE, and MCDONALD knew that the state hospitals for the
criminally insane based "treatment" recommendations based on the facts presented by the
90
Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible
for the abuse of that privilege;" ANONYMOUS went far beyond just a statement of opinion,
ANONYMOUS intentionally misstated the facts to make BARNES look guilty when ANONYMOUS
stated that BARNES "admitted to it!!!!!!! ! ! !"
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prosecutors and courts. At all times during BARNES' unconstitutional captivity, she has
been treated as if she had engaged in all this conduct and is being held until she admits
that she did all these false allegations and that she is "delusional," agrees to follow the
advice of SCHREIBER and agrees to plea bargain. BARNES has been told repeatedly
that it is "implausible" that there would be a conspiracy against her and therefore she is
"delusional" because the prosecutors say she is and the court found that she was.
12. Even after BARNES obtained a court order to enjoin the information
flowing to the media from the prosecutors and WCSD for the sole purpose of trying
BARNES in the media and polluting the potential jury pool in order to deprive BARNES
of a fair trial and due process, BRADLEY continued to communicate false, misleading,
and defamatory information to the media in order to bolster and prove their theory of
motive.9' BRADLEY knew that this would be permanently posted on the Internet and
deprive BARNES of due process, untainted jury, and a fair trial. KXAN also knowingly
violated the court order by publishing these manipulative "facts." Both BRADLEY and
Barnes unfit to stand trial in attack
91
Accused of firing at Census worker in May 2010
Updated: Wednesday, 01 Jun 2011, 9:12 AM CDT
Published: Wednesday, 01 Jun 2011, 9:12 AM CDT
WILLIAMSON COUNTY, Texas (KXAN) A Williamson County woman charged with opening fire at a
Census worker a year ago has been declared incompetent to stand trial.
Carolyn Barnes, an attorney, is currently receiving treatment in a state hospital. The ruling that she is not
competent to participate in her own defense was based on a May psychiatric examination, said Williamson
County District Attorney John Bradley.
Barnes is charged with aggravated assault in the May 2010 attack. The Census worker was not hit in the
shooting, but Barnes is accused of firing several shots.
According to Williamson County jail records, Barnes had been booked into the Williamson County jail
eight times before for charges ranging from contempt of court to making a terroristic threat. In 2002, a
Williamson County jury found Barnes guilty of interfering with a routine traffic stop.
Barnes' arrest history does not stop in Williamson County. In January Barnes was arrested at the Travis
County Courthouse after she allegedly hit a Travis County deputy at the security checkpoint after he found
a knife in her possession and asked her to leave it in her car.
In February a Williamson county judge appointed Barnes an attorney and postponed the trial until June to
give Barnes a chance to fmd her own attorney.
A conviction in the aggravated assault charge that Barnes faces carries a penalty of up to five years in
prison.
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KXAN knew or should have known that these "facts" were not true or accurate, knew
that BARNES had been deprived of due process, that BARNES was unlawfully and
unconstitutionally "declared incompetent to stand trial," that the "exam" by HUMES was
not a "May psychiatric examination," that BARNES was not "receiving treatment in a
state hospital," that "a Williamson county judge" did not "postponed the trial until June
to give Barnes a chance to find her own attorney," or that "[a] conviction in the
aggravated assault charge that Barnes faces caries a penalty of up to five years in prison."
This bad faith press release was solely to convict BARNES in the media and cut off any
possibility of due process or chance of a fair trialit was clearly intended by
BRADLEY, MCCABE, and MCDONALD to prove their theory of motive and cover-up
for the 15 years of defamation per se that WILLIAMSON COUNTY and WCSD started
back in 1999 when BARNES first sued WILLIAMSON COUNTY and the WCSD. This
is not an isolated incident, but is the culmination of a pattern and habit that was been
systematically escalating and building for 15 years. BRADLEY knew that these
communications had been enjoined and forbidden by court order, but, as is his habit,
practice, and custom, he proceeded nevertheless with a conscious disregard and
deliberate indifference to the rights, safety, and welfare of Plaintiffs because he believes
he is above the law when the state and federal courts have steadfastly failed and refused
to take any action to correct this corrupt system or to protect the citizens from this abuse
of power. ANDERSON got away with it before BRADLEY, it still continues unabated,
and grows and compounds daily.
13. All of this defamation accomplished its intended bad faith result, and was
a reasonably foreseeable consequence and the intended result of the Defendants'
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concerted actions to cause harm and inflict pain, injury, and damages on Plaintiffs. These
were clearly calculated falsehood and these statements obviously discredited BARNES in
her chosen calling and caused irreparable and permanent damage to her professional and
personal reputation.
14. These Defendants acted with actual malice--that is, knowledge of, or
reckless disregard for, the falsity of their statements- the knowingly false statements and
the false statements made with reckless disregard of the truth, do not enjoy constitutional
protection. Garrison v. Louisiana, 379 U.S. 64, 75, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964)
(quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 86 L. Ed. 1031
(1942)). Defendants maliciously and repeatedly published statements accusing BARNES
of heinous crimes knowing that she worked in an industry where reputation is paramount.
The reprehensibility of defendants' conduct reflects repeated acts of defamation, which
threatened financial ruin, and resulted from malice.
15. BARNES will prove that HOBBS, FOSTER, WCSD, TCSD,
TUMLINSON, BRADLEY, MCCABE, MCDONALD, BR1NKMANN, GITTEL,
TRAVIS COUNTY, WILLIAMSON COUNTY, KXAN, KEYE, KVUE, CARGILE,
BERGAMO, NEWTON, RYALL, ONE THAT KNOWS, ANOTHER THAT KNOWS,
LIBERALS R. CLUELESS, NATIVE SON, HURST, and ANONYMOUS defamed her
in the mass media with permanent posting on the Internet, and that HOBBS, FOSTER,
BRADLEY, MCCABE, MCDONALD, BRINKMANN, TUMLINSON, ONE THAT
KNOWS, ANOTHER THAT KNOWS, LIBERALS R. CLUELESS, NATIVE SON,
HURST, and ANONYMOUS did so with malice and reckless disregard for the truth, and
that the STATESMAN and AUSTIN LEGAL gave competitors and co-conspirators a
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forum to further defame BARNES. BARNES will further prove that they (1) published a
statement about BARNES, a private individual, (2) that was defamatory concerning
BARNES, while (3) acting negligently regarding the truth of the statement.92 These
published statement were defamatory per Se, permanent on the Internet, and were false,
which prevented BARNES from having a fair trial, or any semblance of due process,
equal protection, or due course of law.
16. HOBBS, FOSTER, BRADLEY, MCCABE, MCDONALD,
BRINKMANN, and TIJMLINSON, who made and published the defamatory statements
did so in the course and scope of their employment, as spokespersons or representatives
of the their respective counties, WILLIAMSON and TRAVIS, and did so at the behest of,
in the interest of, and with the knowledge of the said counties; so the defamatory
statements were published by WILLIAMSON COUNTY and TRAVIS COUNTY..
17. RYALL, CARGILE, BERGAMO, and NEWTON, who made and
published the defamatory statements did so in the course and scope of their employment,
as spokespersons or representatives of the media defendants, and did so at the behest of,
in the interest of, and with the knowledge of the media defendants; so the defamatory
statements were published by the STATESMAN, KVUE, KXAN, KEYE, and they are
vicariously liable.
18. ONE THAT KNOWS, ANOTHER THAT KNOWS, LIBERALS R.
CLUELESS, NATIVE SON, HURST, and ANONYMOUS who were competitors of
BARNES or co-conspirators acted in bad faith to defame and personally attack BARNES
in a public forum, and did so at the behest of, in the interest of, and with the knowledge
WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Harvest House Publishers v. Local
92
Church, 190 S.W.3d 204, 210 (Tex. App.--Houston [1st Dist.] 2006, pet. denied); Saudi v. Brieven, 176
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of the STATESMAN, and the STATESMAN did nothing to monitor or prevent the
defamation and personal attacks, and the STATESMAN and AUSTIN LEGAL has
deliberately left them permanently posted on the Internet to continuously defame
BARNES and deprive her of a fair trial and due process; so the defamatory statements
were published by the STATESMAN, and they are vicariously liable.
19. These defendants intentionally injured BARNES' reputation, both
personally and professionally, and exposed her to public contempt and ridicule, as well as
impeached her reputation for honesty and integrity. These statements were made
intentionally to discredit her and deprive her of a fair and speedy trial. BARNES, her
children, her clients, and her business were substantially damaged, injured, and harmed as
a direct and proximate result of these publications and will continue to be damaged,
injured, and harmed in the future by the permanent and perpetual republications on the
Internet.
20. Mental anguish damages are recoverable in a defamation case.93 The
ordeal of the defamation cost BARNES her liberty, her reputation, her credibility, her
livelihood and ability to earn a living, her familial relationships, her business interests,
real and personal property, money, time, clients, and deprived her of her health, sleep,
good nutrition, and caused her embarrassment and humiliation in the community in
which she lived and worked, disrupted her family, and distressed her children. Plaintiffs
are suffering years of a high degree of mental pain and emotional distress that surpasses
worry, anxiety, vexation, embarrassment, or anger, and includes tortuous interference
with familial relations and a loss of consortium, companionship, care, comfort, support,
S.W.3d 108, 117-18 (Tex. App.--Houston [1st Dist.J 2004, pet. denied).
Bentley v. Bunton, 94 S.W.3d 561, 604 (Tex. 2002) (Bentley I).
225
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and solace. Moreover, BARNES suffered physical, mental, and emotional harm from
over a dozen physical assaults, permanent disfigurement, permanent nerve damage,
PTSD, and depression from indignation, extreme frustration with the lack of fairness and
due process, being held in captivity where she was repeatedly assaulted and abused,
having her honor and integrity impugned, and her family's related suffering added to her
own emotional distress and mental anguish. BARNES' children suffered extreme
emotional distress and mental anguish as well due to the same frustration with the
complete lack of fairness and due process, and in witnessing the abuse and captivity of
their mother and sole caretaker, as well as the loss of care, companionship, comfort,
support, and solace from their mother. The mental anguish suffered by Plaintiffs far
exceeded mere disappointment, anger, resentment or embarrassment, although it did
include all of these. The severe mental anguish and extreme emotional distress includes a
mental sensation of pain resulting from such painful emotions as grief, severe
disappointment, indignation, wounded pride, shame, despair and public humiliation.94
Plaintiffs' entire lives were disrupted and destroyed due to the malice and
unconstitutional pretrial punishment, which was cruel and unusual. BARNES was
repeatedly accused of calculated falsehoods and the inherent hatred and prejudice
towards female lawyers fueled the media sensationalism, which provided an unfettered
platform for unfair trade practices by allowing competitors and co-conspirators to widen
and deepen the personal attacks and further defame and injure Plaintiffs and deprive
BARNES of any hope of a fair trial, equal protection, due process, or due course of law.
See Parkway, 901 S.W.2d at 444 (quoting Trevino v. Southwestern Bell Tel. Co., 582 S.W.2d 582, 584
(Tex. Civ. App.--Corpus Christi 1979, no writ)).
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21. Further, on May 19, 2011, with the intent to indefinitely deprive BARNES
of her freedom, liberty, and other valuable constitutional rights, including but not limited
to a speedy jury trial before a fair and impartial tribunal, equal protection under the law,
due process, and due course of law, MCCABE authored a defamatory letter and
correspondence to the MSU with utmost malice knowing that it would taint the process
and prevent BARNES release.
22. These statements were defamatory per Se. A statement is defamatory per
se if it injures a person in his office, business, profession, or occupation, or if it is a false
statement that accuses him of committing a crime.95 "Our law presumes that statements
that are defamatory per se injure the victim's reputation and entitle him to recover
general damages, including damages for loss of reputation and mental anguish."96 "Once
injury to reputation is established, a person defamed may recover general damages
without proof of other injury."97 There is a presumption of damages for statements that
are defamatory per se. When a rebuttable presumption exists, the burden of producing
evidence shifts to the party against whom the presumption operates.98
23. "For a statement to be actionable in defamation, it must expressly or
impliedly assert facts that are objectively verifiable."99 These Defendants were publishing
See Morn/i v. Cisek, 226 S.W.3d 545, 549-50 (Tex. App.-Houston [1st Dist.] 2006, no pet.).
Bentley v. Bunton, 94 S.W.3d 561, 604 (Tex. 2002) (Bentley]) (citing Leyendecker & Assoc. v. Wechter,
683 S.W.2d 369, 374 (Tex. 1984)).
Leyendecker, 683 S.W.2d at 374.
98
Hot-Hed, Inc. v. Safehouse Habitats (Scotland), Ltd, 333 S.W.3d 719, 730 (Tex. App.-Houston [1st
Dist.] 2010, pet. denied).
n Palestine
Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 509 (Tex. App.-Tyler 2008, pet. denied) (citing
Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 110 S. Ct. 2695, 2706 (1990); Bentley v. Bunton, 94
S.W.3d 561, 579 (Tex. 2002)).
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false statements of fact.100 Plaintiffs will prove that (I) the defendants published a factual
statement (2) that was capable of defamatory meaning (3) concerning BARNES (4) while
acting with negligence, (BARNES is a private individual), and that some of the
Defendants acted with actual malice or a reckless disregard concerning the truth of the
statement.101 A statement is capable of defamatory meaning if it is both false and
injurious to the reputation of the person about whom it is made.'°2 "[A] private
individual may recover damages from a publisher or broadcaster of a defamatory
falsehood as compensation for actual injury upon a showing that the publisher or
broadcaster knew or should have known that the defamatory statement was false."°3
Plaintiffs will further show that the statements contained false, defamatory facts rather
than opinions or characterizations.104 Further, an issue is not a public issue simply
because it is a controversy of interest to the public.'05 Instead, the inquiry concerns
whether people in the public were debating the specific issue and whether the media was
covering that debate.'°6 A matter can be a public issue because people in the public are
discussing it or because people other than the immediate participants in the controversy
are likely to feel the impact of its 07
'°°See El-Khoury v. Kheir, 241 S.W.3d 82, 85 (Tex. App.-Houston [1st Dist.] 2007, pet. denied); AccuBanc
Mortg. Corp. v. Drummonds, 938 S.W.2d 135, 149 (Tex. App.-Fort Worth 1996, writ denied)
("Defamation involves the publication of a false statement of fact about the plaintiff.").
101
Vice v. Kasprzak, 318 S.W.3d 1, 12 (Tex. App.-Houston [1st Dist.] 2009, pet. denied) (citing WFAA-TV,
Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998)).
102
See Casso v. Brand, 776 S.W.2d 551, 554 (Tex. 1989); see also Gertz, 418 U.S. at 339-40, 94 S. Ct.
2997, 3007; N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726 (1964).
103
Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 811, 819 (Tex. 1976); A.H. Belo Corp. v. Rayzor,
644 S.W.2d 71, 80, 82-83 (Tex. App.-Fort Worth 1982, writ ref'd n.r.c.).
104
Columbia Valley Reg'l Med. Cir. v. Bannert, 112 S.W.3d 193, 198 (Tex. App.-Corpus Christi 2003, no
pet.).
'°
Klentzman v. Brady, 312 S.W.3d 886, 905 (Tex. App.-Houston [1st Dist.] 2009, no pet.) (citing Time,
Inc. v. Firestone, 424 U.S. 448, 454, 96 S. Ct. 958, 965 (1976)).
1061d (citing WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 572 (Tex. 1998)).
107
See McLemore, 978 S.W.2d at 572. Dun & Bradsireet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,
759-61, 105 S. Ct. 2939, 2945-46 (1985) (allowing common-law presumption of falsity to exist for private
228
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24. Further, Plaintiffs are entitled to recover exemplary damages against
Defendants, jointly and severally, in the greatest amount allowed by law. Plaintiffs will
show that Defendants acted intentionally, knowingly, or with malice. Defendants acted
with a specific intent to harm and injure Plaintiffs. Defendants did so out of retaliation,
retribution, or revenge and the intended chilling effect on others exercising their first
amendment rights was accomplished. Defendants caused these defamatory statements to
be made in the community where Plaintiffs reside, practice law, go to school, and have
their family and friends, as well as clients and prospective clients. Defendants knew the
defamation would spread nationally once placed on the AP wire and Internet, and that the
damage would be irreparable and the injury would be permanent; Defendants also
maliciously contacted the trade journals and ABA Journal with their malicious
defamation to ensure that BARNES would be defamed nationally to her peers and
competitors.
SEVENTH CLAIM FOR RELIEFTexasConspiracy
1. In support of a pendent state cause of action, the allegations set forth in
Paragraphs 1 through 180 of Section IV are herein incorporated by reference, the same as
if fully set forth verbatim for any and all purposes of this pleading, and further allege as
follows:
2. As a pendent state cause of action, the representations, statements, acts,
omissions and other conduct on the part of the Defendants as more fully set forth herein
and described above constitute false, misleading and deceptive practices engaged in
pursuant to a civil and criminal conspiracy. The actions of Defendants violated state law
as well as 42 U.S.C. §1985, 18 U.S.C. §241, and 18 U.S.C. §242.
issues involving private non-media parties).
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3. This fraudulent and deceptive scheme could not have succeeded absent a
conspiracy on the part of select individuals in Defendants' position.108 When the
Defendants conspired to violate the public trust, repose, and reliance that BARNES
placed in them, they conspired with others who could facilitate the cover-up of the illegal
and unethical activity, conduct, and behavior and who could be reason of their duties as
elected officials and governmental employees could exercise that degree of control by
acts of coercion, threats, intimidation, force, violence, and retaliation to the extent
necessary to deprive BARNES of due process and due course of law.
4. Defendants GITTEL, POPPA, BR1NKMANN, WILSON, FOSTER,
HERNANDEZ, RICHTER, TRAVIS, BOGAN, FOSTER,, NEWELL, HUGHEY,
WAGGONER, BARTZ, DE LA VEGA, HOBBS, BRADLEY, MCCABE, and
MCDONALD, acting under color of state authority, maliciously fabricated, tampered
with, and manipulated evidence and records not in general or in an abstract sense, but
108
A civil conspiracy is "a combination by two or more persons to accomplish an unlawful purpose, or to
accomplish a lawful purpose by unlawful means." Firestone Steel Products Co. v. Barajas, 927 S.W.2d
608, 614 (Tex.1996); see also State v. Standard Oil Co., 130 Tex. 313, 107 S.W.2d 550, 559 (Tex.1937).
"The essential elements are: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of
minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the
proximate result." Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983) (citations omitted). A
party who joins in a conspiracy is jointly and severally liable "for all acts done by any of the conspirators in
furtherance of the unlawful combination." Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 926
(Tex.1979) (quoting State v. Standard Oil, 107 S.W.2d at 559) (emphasis added); see also Akin v. Dahi,
661 S.W.2d 917, 921 (Tex. 1983) ("[O}nce a civil conspiracy is found, each co-conspirator is responsible
for the action of any of the co-conspirators which is in furtherance of the unlawful combination."). Thus, if
a conspiracy is proven, it can extend liability in tort beyond the active wrongdoer to those conspirators who
may have merely planned, assisted, or encouraged the wrongdoer's acts. See Carroll, 592 S.W.2d at 926.
All the plaintiff must show for the alleged conspirators to be held jointly and severally liable is that they
acted "in pursuance of the common purpose of the conspiracy." Carroll, 592 S.W.2d at 928 (citing Berry v.
Golden Light Coffee Co., 160 Tex. 128, 327 S.W.2d 436, 440 (Tex.1959)) (emphasis added). "The gist of a
civil conspiracy is the damage resulting from commission of a wrong which injures another, and not the
conspiracy itself." Schiumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 856
(Tex. 1968). All members of a conspiracy are liable for their co-conspirators' wrongful acts. And, even if a
co-conspirator's acts occurred before the conspiracy formed, all the conspiring parties are liable for those
acts, as long as those acts are made in furtherance of the "common goal" of the conspiracy-in this case,
defaming and punishing BARNES without due process orjuiy trial. See Akin, 661 S.W.2d at 921; Carroll,
592 S.W.2d at 926.
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with the specific intent to arrest, charge, and indict BARNES; and coached, coaxed, and
coddled GITTEL, not to provide information generally to aid a good faith investigation,
but specifically to implicate BARNES. The nature of the misconduct here was the
fabrication, manipulation, and tampering with the evidence against an already identified
target. The fabrication of the evidence was part and parcel of the scheme to deprive
BARNES of her liberty, property, and reputation. The constitutional line was crossed the
moment the deputies shifted their focus from solving an alleged crime to framing
109
BARNES. HERNANDEZ immediately destroyed her notes from the interview with
GITTEL and POPPA when the deputies, at the instigation of SCHEFFLER, shifted their
focus from trying to locate the pasture near a condemned or vacant house from which a
vagrant came and pointed a revolver at GITTEL, allegedly, and redirected their intent to
harass, harm, and hinder BARNES. No one care about the description of the location or
the discrepancy in the address, or the print out from the Census Bureau and map from the
Census Bureau that all clearly showed that GITTEL was not ever sent to BARNES'
address. Even when GITTEL stated that there were men's, women's and children's
clothes on the clothesline, the absence of any such items on BARNES' property did not
deter the malicious scheme, the deputies and prosecutors merely told GITTELL that
BARNES had a man living with her and had a teenage son! BARNES has not ever had a
man living in her home! Further, it did not matter than if you discharge a gun in the city
limits, it is only a misdemeanor; and BARNES resides in the county. It did not matter
that Texas has passed the Castle Doctrine to protect homeowners from these very claims
109
Pyle v. Kansas, 317 U.S. 213, 216 (1942); Limone v. Condon, 372 F.3d 39,44 (1st Cir. 2004);
Washington v. Wilmore, 407 F.3d 274, 282-83 (4th Cir. 2005); Devereaux v. Abbey, 263 F.3d 1070, 1074-
75 (91h Cir. 2001) (en banc); Wilson v. Lawrence County, 260 F.3d 946, 954 (8th Cir. 2001); Ricciuti v.
231
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by trespassers. It did not matter that the Census Bureau specifically instructs in its
printed training manual for enumerators that they cannot go through locked gates without
the owner's permission and consentironically, appearing under the Assault prevention
section of the training manual. Said deputies and prosecutors met immediately at the
Cedar Park Annex that Saturday, May 8, 2001, and plotted and schemed to frame
BARNES before they put together the photo array and went to GITTEL's home to get her
to identify BARNES. When BARNES filed her probable cause affidavit against RYE,
HERNANDEZ, TRAVIS, RICHTER, et a!, said Defendants charged BARNES with
aggravated assault with a deadly weapon on a pubic servant the next day, and tendered
false information concerning said charges to the court and media in order to lead the
court and the public to believe that probable cause exists when there is none, create an
irreparably harmful media frenzy, and cause another false arrest and imprisonment of
BARNES.
5. Defendants TUMLINSON, KLEKAR, HAMILTON, ESCAMILLA, and
SWAIM, acting under color of state authority, maliciously charged BARNES with
aggravated assault against a public servant and interference with the duties of a public
servant, and tendered false information concerning said charges to the court and media in
order to lead the court and the public to believe that probable cause exists when there is
none and to create an irreparably harmful media frenzy and to cause another false arrest
and imprisonment of BARNES.
6. Defendants DE LA VEGA, WILSON, BRINKMANN, WILSON,
FOSTER, HERNANDEZ, RICHTER, TRAVIS, BOGAN, FOSTER,, NEWELL,
N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997); Riley v. City of Montgomery, 104 F3d 1247, 1253
(llthCir. 1997).
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HUGHEY, WAGGONER, and HOBBS, acting under color of state authority,
maliciously charged BARNES with filing a false police report and making a false alarm,
and tendered false information concerning said charges to the court and media in order to
lead the court and the public to believe that probable cause exists when there is none and
to create an irreparably harmful media frenzy and cause another false arrest and
imprisonment of BARNES.
7. The concerted representations, acts, omissions, and other conduct
described above were producing causes of significant economic damages, mental
anguish, and emotional distress to BARNES. BARNES is entitled to recover from these
Defendant conspirators, jointly and severally, damages arising out of the above
mentioned false, misleading and deceptive trade practices of this conspiracy to defraud,
retaliate, and injure.
8. Plaintiffs will prove: (1) the defendants and another person acted together,
(2) they acted to accomplish an object (an unlawful purpose or a lawful purpose by
unlawful means), (3) they had a meeting of the minds on the object or course of action,
(4) they committed one or more unlawful acts, and (5) the plaintiffs suffered damages as
the proximate result of the unlawful acts.110
9. BARNES is asserting a claim for damages, together with expenses,
including attorney's fees, reasonably incurred by BARNES in asserting these claims.
10. TIJML1NSON, HOBBS, BRTh.JKMANN, HERNANDEZ, SCHEFFLER,
MCDONALD, MCCABE, CARNES, ANDERSON, BROOKS, RYE, and BRADLEY,
enlisted the aid, assistance, and participation of WCSD and TCSD and the various
Am. v. Morris, 981 S.W.2d 667, 675 (Tex. 1998); Juhi v. Airington, 936 S.W.2d 640,
110
Ins. Co. OfN. 644
(Tex. 1996); Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 614 (Tex. 1996).
233
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employees and prosecutors of WILLIAMSON COUNTY and TRAVIS COUNTY to
protect their interests due to the criminal justice systems' propensities and beliefs, the
close association with and the social and political persuasion with as an active member of
the same political party and service as both the representative of the county and as a
coconspirator in this criminal conspiracy, and the employees/deputies/investigators of
TCSD and WCSD, and secretly utilized their respective influence with these entities to
cause the events that transpired thereafter; and also to protect the Defendants from
criminal charges or indictments due to this close personal relationship with WCSD and
TCSD.
11. The representations, statements, acts, omissions and other conduct on the
part of these Defendants as described above, constitute unconscionable actions or courses
of action on the part of these Defendants and were undertaken in furtherance of the civil
and criminal conspiracy as more fully described herein. These unconscionable actions or
courses of action on the part of these Defendants include the conduct of and in making
false statements of material fact to the court and others, and enlisting the aid and
assistance of other employees, agents, representatives, prosecutors, and elected officials
of WILLIAMSON COUNTY and TRAVIS COUNTY, who then conspired against
BARNES and caused injury, harm, and damages to BARNES for exposing the corruption
and based upon hate crimes against the non-white population and females.
12. The representations, acts, omissions and other conduct of these
Defendants described above were committed knowingly, deliberately, and intentionally.
These Defendants were actually aware, at the time of the conduct, of the falsity,
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deception, unfairness and unconscionable nature of the conduct described above.
Accordingly, these Defendants are liable to Plaintiffs for actual damages and exemplary
damages, jointly and severally. They knew the truth because they either witnessed it or
watched the video recording and they all knew that TUMLINSON was the aggressor; yet,
they went along with the aggravated perjury and fabricated evidence to cover-up for the
illegal actions of TUMLINSON committed out of anger, rage, and retaliation. Further,
they knew the truth because they heard the initial accusations of GITTEL and they all
knew that GITTEL was engaging in a criminal trespass, had not given BARNES' name
or address, had not described the vagrant woman as BARNES and had not in any way
implicated BARNES in her initial reports prior to the coaching, coaxing, and conning by
WILLIAMSON COUNTY to manipulate a false arrest, false imprisonment, and
malicious prosecution with all the reasonably foreseeable consequences and damages;
yet, they went along with the aggravated perjury and fabricated evidence to cover-up for
the illegal actions of GITTEL, HERNANDEZ, RYE, HOBBS, MCDONALD, TRAVIS,
RICHTER, FOSTER, ANDERSON, BRINKMANN, MCCABE, BRADLEY, and
CARNES committed out of anger, rage, and retaliation. Additionally, they knew the
truth because they heard the recorded conversation and knew that BARNES had not filed
a false police report or false alarm and that DE LA VEGA was engaging in a false arrest,
false imprisonment, and aggravated perjury in furtherance of a criminal conspiracy; yet,
they went along with the aggravated perjury and fabricated evidence to cover-up for the
illegal actions of DE LA VEGA, GITTEL, HERNANDEZ, RYE, HOBBS,
MCDONALD, TRAVIS, RICHTER, FOSTER, ANDERSON, BRTNKMANN,
MCCABE, BRADLEY, and CARNES committed out of anger, rage, and retaliation.
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Ultimately, they knew the truth that BARNES had not breached any term or condition of
her surety bail bond contract and that BARNES was not incompetent to stand trial; yet,
they went along with the aggravated perjury, fraud, gross constitutional violations,
irreparable defamation per Se, and fabricated evidence to cover-up for the illegal actions
of DE LA VEGA, GITTEL, HERNANDEZ, RYE, HOBBS, MCDONALD, TRAVIS,
RICHTER, FOSTER, ANDERSON, BR1NKMANN, MCCABE, BRADLEY, SHAVER,
SCHREIBER, HUMES, and CARNES committed out of anger, rage, and retaliation.
13. The representations, acts, omissions and other conduct of these
Defendants described above were committed intentionally, deliberately, and knowingly
because they did not accidentally or negligently join this conspiracy to cover-up for the
wrongful actions of these Defendants, acting in concert, and to maliciously prosecute
BARNES. These Defendants had actual awareness of the falsity, deception, or unfairness
of the act or practice, coupled with the specific intent that BARNES act in detrimental
reliance on the falsity or deception or in detrimental ignorance of the unfairness or
misplaced trust and confidence in the wrong people to act as competent, fair, and ethical
fiduciaries in extending and keeping the terms and conditions of the plea bargain
agreement, rather than cause significant delay, increase in costs of litigation, and cause
more damage, injury, and losses to BARNES. Accordingly, BARNES is entitled to
recover actual damages and exemplary damages.
14. These Defendants' conduct as described herein and the resulting harm,
damage and loss to BARNES has necessitated the retention of attorney. BARNES is,
therefore, entitled to recover from these Defendants, jointly and severally, an additional
sum to compensate the BARNES for a reasonable fee for such attorney's necessary
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services in the preparation and prosecution of this action, as well as a reasonable fee for
any and all appeals to other courts.
EIGHTH CLAIM FOR RELIEFTexasLegal Malpractice, Breach of Fiduciary
Duty, Failure to Perform Statutory Duties Under the Law
1. In support of a pendent state cause of action, the allegations set forth in
Paragraphs 1 through 180 of Section IV are herein incorporated by reference, the same as
if fully set forth verbatim for any and all purposes of this pleading, and further allege as
follows:
2. SCHREIBER is liable to Plaintiffs for his legal malpractice."
SCHREIBER owed BARNES a duty; he breached that duty; that breach proximately
caused the damages sustained by Plaintiffs; and damages occued.'j2 SCHRIEBER
failed to comply with the applicable standard of care because he failed to do what an
ordinarily prudent lawyer would have done and he did what an ordinarily prudent lawyer
would not have done, under the same or similar circumstances. At all times,
SCHREIBER failed to conduct himself as an ethical, reasonable, and competent lawyer.
The failure of SCHREIBER to conduct himself as a reasonably prudent lawyer was a
cause in fact of the damages, injuries, and losses sustained by Plaintiffs, and these
damages, injuries, and losses were all reasonably foreseeable by SCHREIBER at the time
he decided to engage in this unreasonable conduct. The acts and omissions of
SCHREIBER were a substantial factor in bringing about the injury, damages, and losses
and without which no harm would have occurred.113 SCHREIBER, as a person of
ordinary intelligence, should have anticipated the damage, injury, and losses to Plaintiffs
Morrillv. Graham, 27 Tex. 646, 651 (1864).
112
Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex. 1989).
113
McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex. 1980).
237
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by his negligent, grossly negligent, and intentional acts. Plaintiffs seek to recover mental
anguish damages due to the loss of BARNES' liberty interest and other gross
constitutional violations by SCHREIBER's malicious and intentional conduct."4
3. SCHREIBER owed BARNES a fiduciary duty of candor, honesty, loyalty,
confidentiality, an obligation to deal fairly and in good faith with BARNES, and to place
her interests and wishes above his own. SCHREIBER breached the fiduciary duty by
making material misrepresentations of fact, conspiring with the prosecutors to harm
BARNES, engaging in deception, failing to carry out the wishes of BARNES, violating
BARNES' statutory and constitutional rights, engaging in other egregious conduct, and
exhibiting a conscious disregard and deliberate indifference to the rights, safety, and
welfare of BARNES."5
4. Further, Plaintiffs will prove, by clear and convincing evidence, that the
Plaintiffs' harm occurred as a direct result of fraud, malice, or gross negligence.
Therefore, pursuant to Tex. Prac. & Rem. Code, § 41.003, Plaintiffs also seek punitive or
exemplary damages for the intentional, vindictive, or malicious malpractice of
SCHREIBER in order to punish him and deter him from engaging in this egregious
conduct in the future.
5. SCHREIBER committed legal malpractice, failed to represent BARNES
best interests, conspired with the malicious prosecutors, held his interest paramount to
BARNES and sacrificed her best interests and constitutional rights for his own personal
advancement, violated BARNES constitutional and statutory rights, and breached the
fiduciary duty and statutory duties he owed to BARNES.
v. Moberg, No. 04-06-00497-CV, 2007 WL 1540952 at 3, (Tex.App.San Antonio May 30,
114
Parenti
2007, pet. denied) (holding mental anguish damages are recoverable for intentional or malicious conduct).
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6. BARNES was damaged, injured, and suffered significant losses because
SCHREIBER was incompetent, vindictive, and unethical. SCHREIBER failed to conduct
discovery; failed to designate experts andlor proper witnesses or to call any witnesses on
behalf of BARNES' defense; put his own interests above BARNES' interest; failed to
know or research the substantive law; failed to get BARNES' consent or to inform
BARNES' of his intended retaliatory actions, sabotage, and conspiracy to betray; failure
to timely investigate; suffered from mental, emotional, or physical problems or was lazy
or unethical such that he was afflicted with arrogance and a sexist attitude and prone to
procrastination or incompetent behavior; failed to know or follow the law; made gross
misrepresentations of material fact to the court; introduced incompetent hearsay
testimony or accusations against BARNES; obstructed justice; repeatedly failed to follow
BARNES' client instructions; conspired with the other male misogynist against BARNES
and aided and abetted them in fabrication of a motive and malicious prosecution; and
engaged in other intentional wrong-doing, especially libel, slander, defamation, civil
rights violations, and fraud. SCHREIBER breached the fiduciary duty owed to BARNES
and the statutory duties as required by Texas Health and Safety Code, Title 7, Subtitle C.
SCHREIBER also engaged in legal malpractice when he joined the malicious conspiracy,
aided and abetted the malicious prosecution, maliciously abused process, aided and
abetted the prosecution in the malicious abuse of process, and solicited 1{UMES to aid
and abet the malicious abuse of process.
7. BARNES incurred actual and consequential damages, in the past and
future, as a direct and proximate result of the actions, malpractice, negligence, gross
negligence, unlawful and unconstitutional conduct, and breaches by SCHREIBER.
115
Trousdale v. Henry, 261 S.W.3d 221, 228 (Tex.App.Houston [14th Dist] 208, pet. denied).
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Plaintiffs seek to recover a monetary judgment against SCHREIBER for any and all
damages incurred or sustained as a direct result of SCHREIBER's misconduct, as well as
punitive damages to punish him and deter him from such gross, malicious, and shocking
behavior in the future. Plaintiffs also seek the equitable remedy of fee forfeiture so that
SCHREIBER is not unjustly enriched by his conduct. Further, Plaintiffs seek to recover
under the Texas Deceptive Trade Practices Act because SCHREIBER made express
misrepresentations of material fact, failed to disclose critical information, engaged in an
unconscionable course of action, that cannot be characterized as advice, judgment, or
opinion. Plaintiffs seek recovery of mental anguish damages, treble damages, and
reasonable and necessary attorney's fees pursuant thereto.
8. SCHREIBER committed legal malpractice, failed to represent BARNES
best interests, conspired with the malicious prosecutors, held his interest paramount to
BARNES and sacrificed her best interests and constitutional rights for his own personal
advancement, violated BARNES constitutional and statutory rights, and breached the
fiduciary duty and statutory duties he owed to BARNES.
9. BARNES incurred actual and consequential damages, in the past and
future, as a direct and proximate result of the actions, malpractice, negligence, gross
negligence, unlawful and unconstitutional conduct, and breaches by SCHREIBER.
10. Plaintiffs seek to recover a monetary judgment against SCITIREIBER for
any and all damages incurred or sustained as a direct result of SCHREIBER's
misconduct, as well as punitive damages to punish him and deter him from such gross,
malicious, and shocking behavior in the future.
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NINTH CLAIM FOR RELIEFTexasIntentional Infliction of Emotional
Distress With Indefinite Pretrial Captivity
1. In support of a pendent state cause of action, the allegations set forth in
Paragraphs 1 through 180 of Section IV are herein incorporated by reference, the same as
if fully set forth verbatim for any and all purposes of this pleading, and further allege as
follows:
2. As a pendent state cause of action, BARNES brings a cause of action
against these Defendants for unilateral modification without just cause and breach of
surety bail bond contract without due process or due course of law, and breach of their
express and implied representations, promises, assurances, and duties as well as their
intentional infliction of emotional distress and mental anguish. BARNES has sustained
damages as a result of said breach and intentional infliction of emotional distress caused
by the resulting indefinite pretrial incarceration, which damages exceed the minimum
jurisdictional limits of this Court. The actions of were extreme, outrageous, and
shocking.
3. Commitment to a mental hospital is a weighty curtailment of one's liberty.
Humphrey v. Cady, 405 U.S. 504, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972). Such a
restriction on liberty requires the protections afforded by due process. Those protections
include the right to a fair hearing and as set forth in Texas Constitution Art. I, § 15-a and
Texas Health and Safety Code, Title 7, Subtitle C, the right to notice, right to be heard,
right to effective assistance of counsel, right to confront witnesses and evidence against
one, right to call witnesses and present evidence on one's own behalf, and right to appear
through counsel or pro Se, or both.
4. All Defendants, acting in concert, and contributing their own bad faith or
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grossly negligent conduct in furtherance of the conspiracy to harm, injure, and damage
BARNES, caused the unconstitutional pretrial captivity and imposition of cruel and
unusual punishment without any semblance of substantive or procedural due process,
equal protection under the law, or due course of law. The pretrial captivity was a
reasonably foreseeable consequence of the media frenzy and deliberate violations of
constitutional rights, defamation per Se, destruction of the presumption of innocence, and
invasion of privacy; and the infliction of extreme emotional distress and immeasurable
mental anguish were the direct and proximate result of the loss of freedom, denial of
constitutional rights, curtailment of liberty, and the resulting losses, injuries, damages,
and harm that are reasonably foreseeable consequences of indefinite pretrial captivity,
violation of fundamental and structural due process and other constitutional rights, and
the imposition of such cruel and unusual punishment without any semblance of
procedural or substantive due course of law or equal protection under the law. The
actions and conduct of all the Defendants named in this civil suit, acting in concert,
caused the indefinite pretrial captivity in very cruel and unusually punitive conditions and
the damages, injuries, losses, and harm suffered by Plaintiffs are recoverable from all
Defendants, jointly and severally.
TENTH CLAIM FOR RELIEFTexasTort Claims Act
1. In support of a pendent state cause of action, the allegations set forth in
Paragraphs 1 through 180 of Section IV are herein incorporated by reference, the same as
if fully set forth verbatim for any and all purposes of this pleading, and further allege as
follows:
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2. Plaintiffs brings suit against WILLIAMSON COUNTY, TRAVIS
COUNTY, WCSD, and TCSD, pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 101.001
et. seq.(Vernon 2005 Supp. 2006), for the condition, misuse, or use of the following
instrumentality or personal property: the jails; arrests records; paper; computers; marked
patrol cars and county owned truck; guns; rifle scope; bullet proof or hard vest; shackles;
handcuffs; leather restraint belt with cuffs attached; criminal tag; leg iron; electronic
monitoring with harmful electromagnetic frequencies; restraint jacket; hard straight board
with restraints; hard neck brace; tow truck on June 1, 2011; audio and video equipment
during July 2010 arrest, in jail, and in court; audio-video recording equipment; unhealthy
"food" in jail; rubber stamp of official signatures; notary seal; driver's license and arrest
photos; cameras; and fraudulent billing.
3. Plaintiffs seek actual and compensatory damages, including:
Past reasonable and necessary medical expenses;
Future probably reasonable and necessary medical expenses;
Past lost earnings;
Future probable lost earnings;
Past physical pain and suffering, mental anguish, and emotional distress;
Future probable physical pain and suffering, mental anguish, and emotional
distress;
Past property damages and losses;
Prejudgment interest;
Post judgment interest;
Reasonable and necessary attorney's fees; and
Court costs.
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ELEVENTH CLAIM FOR RELIEFTexasMalicious, Vindictive, Retaliatory,
and Selective Prosecution
1. In support of a pendent state cause of action, the allegations set forth in
Paragraphs 1 through 180 of Section IV are herein incorporated by reference, the same as
if fully set forth verbatim for any and all purposes of this pleading, and further allege as
follows:
2. Plaintiffs assert a claim for malicious, vindictive, retaliatory, and selective
prosecution by GITTEL, TUMLINSON, SWAIM, ESCAMILLA, DE LA VEGA,
HOBBS, BRADLEY, MCCABE, and MCDONALD, with the aid and assistance of the
employees and deputies of WILLIAMSON COUNTY and TRAVIS COUNTY, pursuant
to a malicious conspiracy to harm, injure, and damage Plaintiffs in bad faith by depriving
her of basic, fundamental, and structural due process and constitutional rights; and
ultimately to inflict cruel and unusual pretrial punishment on BARNES and hold her in
indefinite pretrial captivity in an unusual manner in cruel, inhumane, violent, and
oppressive conditions.
3. No objectively reasonable and prudent lawyer under the same or similar
circumstances would have believed that there was a good faith reason to prosecute
BARNES for any felony offense arising out of either the TUML1NSON incident or the
GITTEL story, or to charge BARNES with any felony or charge for interference with the
duties of a public servant, filing a false police report or false alarm. Any objectively
reasonable and prudent lawyer under the same or similar circumstances would have
realized the significance of the exculpatory evidence and heeded that evidence, preserved
it, and protected it.
4. The assault by TUMLINSON was captured on the TRAVIS COUNTY
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courthouse security cameras and the truth was easily accessible to any objectively
reasonable and prudent lawyer under he same or similar circumstances. Also, any
objectively reasonable and prudent lawyer under the same or similar circumstances
would not have believed that the use of a cell phone in the TRAVIS COUNTY
courthouse was unlawful, impermissible, or in any manner interfered with the duties of
TUMLISON. Further, any objectively reasonably lawyer under the same or similar
circumstances would have considered the documented propensity, habit, demeanor, and
practice of TUMLISON. No objectively reasonable and prudent lawyer would have filed
the interference with the duties of a public servant charges against BARNES six months
after the incident, and had her arrested in a publicly embarrassing and humiliating manner
while she was appearing on behalf of a client as an officer of the court inside the bar, or
required to her post a third bond arising out of the same false arrest when she was
currently out on the second bond in the amount of $50,000 at the time of the third false
and malicious arrest. No objectively reasonable and prudent lawyer under the same or
similar circumstances would have continued the malicious prosecution and obstructed
justice and blocked BARNES access to the relevant evidence to prepare her defense for
over a year. No objectively reasonable and prudent lawyer under the same or similar
circumstances would travel to WILLIAMSON COUNTY during the trial of BARNES
and maliciously conspire with the malicious prosecutors to have BARNES thrown back
in jail, deprive of her constitutional rights, and indefinitely held in pretrial captivity in
cruel, violent, and inhumane conditions.
5. No objectively reasonable and prudent lawyer under the same or similar
circumstances would have filed charges against BARNES without considering the fact
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that GITTEL would have been clearly trespassing for her story to ring true; the Census
Bureau's training manual specifically forbid the enumerators from going through locked
gates without the owner's express permission and consent; the address print out and map
from the Census Bureau did not show that GITTEL was sent to speak with BARNES;
GITTEL was not even sent to BARNES' address; the initial description of the woman,
house, property, and events by GITTEL did not match the allegations in the probable
cause affidavit or the deliberate reports to the media; Texas passed the Castle Doctrine
intended to save land owners from the exact same type of prosecution; BARNES'
property is not in the city limits but lies in a remote country setting; and even if shots had
been fired at GITTEL and they had been fired in the city limits the charge would only be
a misdemeanor, so the District Attorney and District Courts had no jurisdiction. No
objectively reasonable and prudent lawyer under the same or similar circumstances
would have allowed clearly inadmissible and defamatory per se statements to be made to
the media knowing it would deprive BARNES of a fair trial and presumption of
innocence. No objectively reasonable and prudent lawyer would continue to leak
defamatory per se statements to the media after the trial judge had granted BARNES'
motion to cease and desist the leaks to the media. No objectively reasonable and prudent
lawyer under the same or similar circumstances would file and continue to file bad faith
motions requesting psychiatric exams for sanity, competency, and mental retardation to
prove a motive for criminal punishment. No objectively reasonable and prudent lawyer
would block BARNES' access to the grand jury or right to a Franks hearing. No
objectively reasonable and prudent lawyer under the same or similar circumstances
would have filed a motion to revoke the $50,000 surety bail bond based on an alleged
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reason that BARNES' filed a false police report because no objectively reasonable and
prudent lawyer under the same or similar circumstances would have believed that
BARNES had filed a false police report or was "re-offending." No objectively
reasonable and prudent lawyer under the same or similar circumstances would have
believed that one could lawfully and constitutionally impose a curfew, criminal tagging,
electronic monitoring, house arrest, and other oppressive conditions on BARNES in
addition to the outstanding $50,000 surety bail bond that was already in place securing
her appearance at trial. No objectively reasonable and prudent lawyer under the same or
similar circumstances would believe the a pretrial confiscation of rifles and shotguns was
lawful or constitutional, especially when GITTEL described the revolver in detail and no
revolvers or handguns were found on BARNES' premises or anywhere in her vehicles,
homes, buildings, trailers, storage units, or safe. No objectively reasonable and prudent
lawyer under the same or similar circumstances would have conspired to deprive
BARNES of fundamental and structural due process rights, equal protection under the
law, or subject BARNES to indefinite pretrial captivity in cruel and unusual conditions in
solitary confinement and the MSU without any semblance of procedural or substantive
due process.
6. Plaintiffs will particularly introduce relevant evidence and testimony
concerning the following material areas of the law:
Interference with the duties of a public servant
Castle Doctrine
Filing a false police report
Assault on a public servant
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Bond revocations and warrants
Grand juries blocking equal access
Electronic monitoring, curfew, house arrest, confiscation of guns
Mental commitments
Competency to stand trial
Eyewitness identifications
Right to pretrial release and reasonable bail
Right to speedy trial
Right to exculpatory evidence
Due process, due course of law, and equal protection under the law
Abuse of media and destruction of presumption of innocence and other
presumptions in favor of the accused.
TWELVETH CLAIM FOR RELIEFTexasMalicious Abuse of Process
1. In support of a pendent state cause of action, the allegations set forth in
Paragraphs 1 through 180 of Section IV are herein incorporated by reference, the same as
if fttlly set forth verbatim for any and all purposes of this pleading, and further allege as
follows:
2. MALICIOUS ABUSE OF PROCESS: BARNES also pleads a cause of
action for malicious abuse of process, including but not limited to, the malicious abuse of
process under T.C.C.P. art. 46B and Texas Health and Safety Code, Title 7, Subtitle C,
Chapter 574, in addition to the filing of false and fabricated charges through the use of
orchestrated PC affidavits as press releases.
3. Abuse of process is asserted against SCHEFFLER, HOBBS, RYE,
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SWAIM, MORGAN, BRADLEY, MCCABE, MCDONALD, HUGHEY, RUPPART,
GITTEL, TUMLINSON, ANDERSON, BROOKS, CARNES, SHAVER,
BRINKMANN, BARTZ, HUGHEY, DE LA VEGA, HERNANDEZ, RICHTER,
TRAVIS, BOGAN, FOSTER, WAGGONER, NEWELL, SCHREIBER, HUMES,
COTTON, LERMA, UNIDENTIFIED THREE, GRIFFITH, and RUPPART.
4. The elements of the cause of action for abuse of process include: (1) the
defendant made an illegal, improper, perverted use of the process; (2) in so doing the
defendant had an ulterior motive or purpose; and (3) damage resulted to the plaintiff from
the irregularity.'16
5. BARNES will prove that she has suffered special damages, i.e. a physical
interference with her person and property in the form of multiple arrests, multiple
imprisonments and excessive and punitive bail amounts, and indefinite pretrial captivity
in order to impose cruel and unusual punishment.117 The malicious abuse of process in
this case led to the indefinite pretrial captivity of BARNES in an unusual manner where
she is being held in cruel, inhumane, deplorable, violent, and oppressive conditions
without any semblance of recourse, due process, equal protection, or due course of law
she has no right to appeal and the writ of habeas corpus has been suspended, even the
federal courts will not intervene and enforce her constitutional rights that should enjoy
federal protection. Plaintiffs have suffered over $1,000,000.00 in damages, losses, costs,
expenses, expert fees, legal fees, injuries, medical bills, and harm, and the damages,
losses, costs, expenses, expert fees, legal fees, injuries, medical bills, and harm continue
to mount and accrue. The damages are immense and irreparable, and the actions are
116Detenbeck v. Koester, 886 S.W.2d 477, 480 (Tex. App.-Houston [1St Dist.] 1994, writ dism'd).
117
See Martin v. Trevino, 578 S.W.2d 763, 766769 (Tex. Civ. App.-Corpus Christi 1978, writ ref d n.r.e.);
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unabated, the malice continues, and there is no equal protection under the law for
Plaintiffs. All of these damages were foreseeable consequences of the conduct and
actions of Defendant, acting in concert pursuant to a malicious criminal conspiracy, and
the damages were a direct and proximate result of those actions and conduct. Therefore,
Plaintiffs are entitled to recover any and all actual and consequential, as well as punitive
or exemplary, damages resulting from said malicious, unlawful, or unconstitutional
conduct.
6. In Yick Wo v. Hopkins, 118 U.S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220
(affirmed in US. v. Wong Kim Ark, 169 U.S. 644, 18 Sup. Ct. 456, 42 L. Ed. 890), the
court stated: "Though the law itself be fair on its face and impartial in appearance, yet if
it is applied and administered by public authority with an evil eye and an unequal hand,
so as to practically make unjust and illegal discrimination between persons in similar
circumstances, material to their rights, the denial of equal justice is still within the
prohibition of the Constitution.118
7. When the fourteenth amendment forbade any state from depriving any
person of life, liberty or property without due process of law, it was supposed that the
intent of the people of the United States was to prevent the deprivation of any legal right
in violation of the fundamental guaranties inhering, as often said, " apply to all the
instrumentalities of the state, to its legislative, executive, and judicial authorities; and
therefore it has become a settled doctrine in the constitutional jurisprudence of this
country that whoever by virtue of public position under a state government deprives
see also Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 209 (Tex. 1996).
118
To the same effect are the following cases: C., B. & Q. Ry. v. Chicago, 166 U.S. 226, 17 Sup. Ct. 581,
41 L. Ed. 979; Henderson v. Mayor, 92 U.S. 259, 23 L. Ed. 543; Chy Ling v. Freeman, 92 U.S. 275, 23
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another ofproperty, life or liberty without due process of law, or denies or takes away
the equal protection of the law, violates the constitutional inhibition, and he acts in the
name andfor the state, and is clothed with the state's power, his act is that of the state.
This must be so, or, the constitutional prohibition has no meaning, and the state has
clothed one of its agents with the power to annul or evade it."119
THIRTEENTH CLAIM FOR RELIEFTexasTortious Interference with
Familial Relations
1. In support of a pendent state cause of action, the allegations set forth in
Paragraphs 1 through 180 of Section IV are herein incorporated by reference, the same as
if fully set forth verbatim for any and all purposes of this pleading, and further allege as
follows:
2. Plaintiffs have suffered irreparable and extensive interference with
familial relations and damages far in excess of the mental anguish and emotional distress
previously plead in that Plaintiffs were a close family prior to the malicious imposition of
pretrial punishment, captivity, and months where Plaintiffs were not even allowed to
communicate, and over a year of no physical contact. BARNES' children lost their
emotional, mental, and physical support suddenly without any warning or notice or time
L.Ed. 550; Neal v. Delaware, 103 U.S. 370, 26 L. Ed. 567; Soon v. Crowley, 113 U.S. 703, 5 Sup. Ct. 730,
28 L. Ed. 1145; Ex parte Abrams, 56 Tex. Cr. R. 478, 120 S.W. 883.
119
C., B. & Q. Ry. v. Chicago, 166 U.S. 226, 233, 234, 17 Sup. Ct. 581, 41 L. Ed. 979, citing Ex parte
Virginia, 100 U.S. 346, 347, 25 L. Ed. 679; Scott v. McNeal, 154 U.S. 34, 14 Sup. Ct. 1108, 38 L. Ed. 896.
The court has said: "But a state may not, by any of its agencies, disregard the prohibition of the fourteenth
amendment. Its judicial authorities may keep within the letter of the prescribed forms of procedure in its
courts and give the parties interested the fullest opportunity to be heard, and yet it might be that its final
action would be inconsistent with the amendment. In determining what is due process of law, regard must
be had to substance, and not to form." Chicago, Burlington, etc., Ry. v. Chicago, 166 U.S. 226, 17 Sup. Ct.
581, 41 L. Ed. 979. Again, in another case, "though the law itself be fair on its face and impartial in
appearance, yet if it is applied and administered by public authority with an evil eye and unequal hand, . . . it
is still within the prohibition of the Constitution." Yick Wo v. Hopkins, 118 U.S. 373, 6 Sup. Ct. 1064, 30
L. Ed. 220. See, also, Henderson v. Mayor, 92 U.S. 259, 23 L. Ed. 543; Chy Ling v. Freeman, 92 U.S. 275,
23 L. Ed. 550; Neal v. Delaware, 103 U.S. 370, 26 L. Ed. 567; Soon v. Crowley, 113 U.S. 703, 5 Sup. Ct.
730, 28 L. Ed. 1145.
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to make preparations under extreme, shocking, and inhumane circumstances, and were
completely left without any means of financial support or assistance. BARNES and her
children lost their companionship, solace, support, comfort, care, and time together. This
was cruel, inhumane, shocking, outrageous, calculated, planned, and inflicted with utmost
malice.
3. Plaintiffs allege that the conduct of Defendants, all acting in concert, in
furtherance of the criminal conspiracy causes significant and irreparable losses to the
family unit and the close ties between the Plaintiffs because of the cruel and unusual
imposition of pretrial punishment and separation, as well as the barriers to
communication and contact between Plaintiffs, as well as the loss of opportunities to
Plaintiffs due to the malice and bad faith of these criminal actors. Plaintiffs have suffered
the loss of comfort, companionship, solace, advice, support, interaction, travel, education,
business opportunities, contacts, and development that the close relationships between
mother and child bring. The malice, ill-will, and bad faith of Defendants fractured the
family fabric and destroyed the foundation and security of the family home and
investments. Plaintiffs suffered losses, harm, injury, and damages far in excess of
$1,000,000.00, for which they are justly entitled to recover from Defendants, jointly and
severally because this malicious criminal conspiracy could not have succeeded without
the joint, several, and compounding participation by all the Defendants fulfilling their
planned and orchestrated roles.
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4. All Defendants named herein contributed their actions and conduct to the
conspiracy that resulted in such unmitigated and malicious damage to this family unit,
and are all jointly and severally responsible for all the consequential and resulting harm,
injury, damages, and losses. The Defendants whom the jury finds acted with malice or in
a shocking and outrageous manner should be assessed punitive or exemplary damages to
punish or to make sure that this conduct is not repeated in the future.
FOURTEENTH CLAIM FOR RELIEFTexas--Tortious Interference with
Business Relations and Contracts, and Violations of the Texas Deceptive Trade
Practices Act
1. In support of a pendent state cause of action, the allegations set forth in
Paragraphs 1 through 180 of Section IV are herein incorporated by reference, the same as
if fully set forth verbatim for any and all purposes of this pleading, and further allege as
follows:
2. In order to prevail on this cause of action, the officers were required to
prove (1) the existence of a contract subject to interference, (2) the occurrence of an act
of interference that was willful and intentional, (3) that the act was a proximate cause of
their damage, and (4) that actual damage or loss occurred. See Holloway v. Skinner, 898
S.W.2d 793, 795-96 (Tex.1995). When a defendant is both an agent of a party to the
contract and the person accused of tortious interference, a plaintiff may assert the cause
of action by additionally proving the defendant acted so contrary to the principal's
interests that his actions could only have been motivated by personal interests. Id. at 796-
-798.
3. Based upon all of the foregoing facts, BARNES was deprived of business
relationships, contracts, and accounts receivables, as well as a complete cessation of a
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private law practice that had been in existence since 1986 with the permanent loss of all
the phone numbers associated therewith for over a decade, websites, and all the benefit of
advertising and website placement, which has been taken over by the permanent bad faith
defamation. BARNES totally lost over 25 years of goodwill, contacts, and clients due
directly to the malicious conduct of all Defendants acting in concert. The conduct also
violated the Texas Deceptive Trade Practices Act because BARNES' competitors were
allowed to violate the fair trade laws and maliciously malign BARNES and her business
with defamatory per se statements. The media Defendants, their reporters and
employees, as well as the anonymous contributors they allowed to post, completely
destroyed BARNES' 25 year investment in goodwill, advertising, and placement.
Plaintiffs seek compensation for all the damage, losses, harm, and injury caused by these
Defendants in tortiously interfering with BARNES' business relations and contract, and
violations of the Texas Deceptive Trade Practices Act, and recovery of treble damages,
exemplary or punitive damages, reasonable and necessary legal fees, and court costs.
FIFTHTEENTH CLAIM FOR RELIEFTexasBreach of Surety Bail Bond
Contract and Terms and Conditions of Pretrial Release
1. In support of a pendent state cause of action, the allegations set forth in
Paragraphs 1 through 180 of Section IV are herein incorporated by reference, the same as
if fully set forth verbatim for any and all purposes of this pleading, and further allege as
follows:
2. BARNES had fully performed her end of the bargain on five different bail
bond contracts required by WILLIAMSON COUNTY, WCSD, TRAVIS COUNTY,
TCSD, and its various employees, prosecutors, judges, magistrates, agents,
representatives, or elected officials; yet, WILLIAMSON COUNTY, WCSD, TRAVIS
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COUNTY, TCSD, SWAIM, ESCAMILLA, GUERRERO, SAENZ, MORGAN,
BRADLEY, MCCABE, MCDONALD, HOBBS, BROOKS, SHAVER, and CARNES
unilaterally caused the breach of said bail bond contracts and the complete failure of
consideration under said bail bond contracts after extracting well over $10,000 in cash
from BARNES to secure her pretrial release. Plaintiffs suffered damages as a direct,
proximate, and reasonably foreseeable consequence of the breaches and unilaterally
interference with these surety bail bond contracts and pretrial release contracts, and
Plaintiffs seek to recover judgment for the damages, losses, injuries, and harm sustained,
especially the indefinite pretrial captivity that forever deprived BARNES of her right to a
speedy and fair trial in a timely and meaningful manner and the imposition of cruel and
unusual punishment without any semblance of due process, due course of law, or equal
protection under the law. To the extent that the jury finds that these Defendants acted
with malice or with a conscious disregard or deliberate indifference to the rights, safety,
or welfare of Plaintiffs, then Plaintiffs seek exemplary or punitive damages.
SIXTHTEENTH CLAIM FOR RELIEFTexasDeclaratory Judgment
1. In support of a pendent state cause of action, the allegations set forth in
Paragraphs 1 through 180 of Section IV are herein incorporated by reference, the same as
if fully set forth verbatim for any and all purposes of this pleading, and further allege as
follows:
2. DECLARATORY JUDGMENT. Plaintiffs request that this Court issue a
declaratory judgment that Defendants unlawfully deprived BARNES of her right to free
speech, freedom of association, to privacy and to be left alone, to be free of pretrial
punishment and captivity, to a speedy trial, to a fair jury, to represent herself, to one bail
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without unilateral modifications or breaches, to exculpatory evidence, to due process, to
equal protection under the law, to be free from unreasonable searches and seizures, and
right to redress of grievances without retaliation and malicious, vindictive prosecutions.
3. Further, Plaintiffs request that this Court permanently enjoin Defendants,
and their agents and those acting in concert with them, from maintaining an
unconstitutional political patronage system or retaliatory scam whereby freedoms of
political beliefs, speech, assembly, association, affiliation, and other valuable rights are
infringed upon; and requiring Defendants to adopt and implement written and
enforceable policies and procedures, along with a written policy and procedure to
enforce, discipline, and timely rectify any breach in these written policies and procedures
to prevent these retaliatory, malicious, and vindictive actions in the future. Additionally,
Plaintiffs request that this Court order Defendants to dismiss the malicious, vindictive,
and groundless prosecutions because BARNES is not guilty as charged, their
unconstitutional actions have forever deprived BARNES of a speedy and fair trial, and
they have already extracted cruel and unusual punishment pretrial and any further attempt
to punish would be barred by double jeopardy protections. Plaintiffs are entitled to
attorney's fees as are equitable and just, as authorized by the Declaratory Judgment Act.
See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 1997), and Plaintiffs seek all
relief available pursuant thereto.
SEVENTEENTH CLAIM FOR RELIEFTexasMalice and Exemplary or
Punitive Damages
1. In support of a pendent state cause of action, the allegations set forth in
Paragraphs 1 through 180 of Section IV are herein incorporated by reference, the same as
if fully set forth verbatim for any and all purposes of this pleading, and further allege as
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follows:
2. Plaintiffs pray that this court enter a monetary judgment in an amount
sufficient to punish the Defendants whom the jury finds acted intentionally, knowingly,
deliberately, maliciously, vindictively, or to retaliate against BARNES, and to deter them
from engaging in such conduct in the future.
3. Plaintiffs are not seeking punitive or exemplary damages from the
counties provided that the declaratory relief is granted and WILLIAMSON COUNTY,
TRAVIS COUNTY, WCSD, and TCSD are required to adopt and implement in a timely
and meaningful fashion written policies and procedures that will correct, address, and
prevent these on-going habits, practices, and customs within local law enforcement and
rid our system of abusive and oppressive law enforcement personnel and malicious
prosecutors, and develop and adopt a meaningful system for the citizens to seek redress
of their grievances and prompt and meaningful disciplinary action against government
employees who violate the policies, procedures, or efforts to reform this bad faith and
unconstitutional conduct. Plaintiffs are also not seeking punitive or exemplary damages
from any defendant that proves on the trial of this cause that they were acting in good
faith, and not participating in the criminal conspiracy. Plaintiffs are seeking punitive and
exemplary damages specifically against TUMLIINSON, LERMA, COTTON,
UNIDENTIFIED THREE, SWAIM, MORGAN, GITTEL, RYE, HOBBS, BRADLEY,
MCCABE, MCDONALD, GRIFFITH, BRINKMANN, HUGHEY, HERNANDEZ, DE
LA VEGA, FOSTER, BROOKS, RUPPART, CARNES, ANDERSON, GRIFFITH,
CLIFTON, SCHEFFLER, SCHREIBER, KXAN, and those individuals who posted
defamatory comments on the Internet with an intent to harm BARNES because BARNES
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has directly observed the malice or has seen direct evidence of the malice or dishonesty
of these Defendants and knows they were actively involved in the criminal conspiracy.
The other named Defendants may be subject to punitive or exemplary damages
depending upon the findings in discovery and by the jury.
EIGHTEENTH CLAIM FOR RELIEFTexas--Individual Liability
1. In support of a pendent state cause of action, the allegations set forth in
Paragraphs 1 through 180 of Section IV are herein incorporated by reference, the same as
if fully set forth verbatim for any and all purposes of this pleading, and further allege as
follows:
2. As a pendent state cause of action, the individual actions of Defendants,
TUMLINSON, KLEKAR, COTTON, LERMA, UNIDENTIFIED THREE,
HAMILTON, SWAIM, ESCAMILLA, MORGAN, SAENZ, GUERRERO, GITTEL,
SCHEFFLER, BRADLEY, MCCABE, MCDONALD, HOBBS, RYE, HERNANDEZ,
BR1NKMANN, BARTZ, BOGAN, NEWELL, HUGHEY, WAGGONER, TRAVIS,
FOSTER, RICHTER, RUPPART, SCHREIBER, HUMES, SHAVER, CARNES,
ANDERSON, BROOKS, WILSON, BERGAMO, CARGILE, NEWTON, GITTEL,
POPPA, RYALL, ONE THAT KNOWS, ANOTHER THAT KNOWS, LIBERALS R.
CLUELESS, NATIVESON, HURST, ANONYMOUS, GRIFFITH, and CLIFTON, are
the proximate and/or producing cause of BARNES' and Plaintiffs' damages, losses,
harm, and injuries because they knew the true intent of the actions of Defendants in
contriving false arrests, false imprisonments, malicious prosecutions, defamations, and
indefinite pretrial captivity, with the resulting confiscation and loss of personal property,
assets, and funds belonging to Plaintiffs based on hatred, malice, prejudice, to punish the
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1st
exercise of rights protected by the amendment, and to retaliate against and attack
3. As a pendent state cause of action, the Defendants had a professional
responsibility under the Texas rules of practice and procedure as well as disciplinary
rules of professional conduct and judicial conduct not to engage in unconstitutional,
illegal, unethical, and criminal activity or in any manner prepare any plans or in any
manner participate in any fraudulent practice which when measured by generally
accepted standards for said professionals and elected officials and persons holding offices
of public trust was reasonably likely to result in any damage or injury to the property,
lives, safety, health, or welfare of others or BARNES. These Defendants also had a
professional responsibility that when they became aware of a course of action taken
against the interest of BARNES which might violate applicable state or federal laws or
regulations and which was likely to have an adverse effect on the rights and interests of
BARNES, to refuse to act and to refuse to consent to the planned course of action.
4. Persons holding positions of public trust owe the highest duty under the
law to act in utmost good faith and a duty of good faith, fair dealing, and honesty and
therefore had an obligation to make good faith disclosures of all facts relevant to the
transactions, threats, consequences, and plea bargain.
5. By the conduct described in the foregoing paragraphs, these Defendants
breached their public trust duty owed to BARNES resulting in substantial injury,
damages, and loss. Therefore, these Defendants are sued in their individual capacity,
jointly and severally.
6. WILLIAMSON COUNTY, TRAVIS COUNTY, WCSD, and TCSD
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entered into a fraudulent and misleading bail bond agreement and pretrial release
agreement, and knew that their promises, representations, and assurances were relied
upon by BARNES and that she entrusted them with the proper conduct of the State of
Texas and its elected officials and proper respect and protection for the constitution and
laws of this State and Nation, and they made those promises, representations, and
assurances deliberately and intentionally to mislead BARNES and cause her to place
trust, confidence, and repose in them to do right under the law and facts of the case. At
all times, they knew that BARNES would so trust and rely upon their contractual
agreements, promises, representations, and assurances, would part with over $10,000 in
cash.
7. All the misrepresentations and deceptive conduct described above were
committed by Defendants personally, and acting in concert. This conduct was
intentional, or pleading in the alternative, was done with gross negligence and malice.
Such conduct was, moreover, a part of and consistent with a plan, scheme, or design,
andlor pattern of conduct, engaged in by Defendants as a result of racial hatred, sexual
prejudice, and malice. The actions and resulting damages would not have occurred but
for the malice and extreme sexual prejudice and racial hatred towards non-white citizens
and females harbored by Defendants, as well as the negative stereotyping of female
lawyer and criminal defense lawyers.
8. Accordingly, BARNES prays that, upon hearing hereof, the Court should
find and hold that these Defendants are individually liable for any and all damages, costs
and/or attorneys' fees assessed against any other party in this case, jointly and severally.
Any reference to "Defendants" in this section only applies to the aforementioned
Case 1:12-cv-00028-LY Document 18-4 Filed 07/16/12 Page 47 of 53
Defendants and does not include WILLIAMSON COUNTY or TRAVIS COUNTY.
NINTEENTH CLAIM FOR RELIEFTexas--Governmental Liability and
Respondeat Superior Liability
1. In support of a pendent state cause of action, the allegations set forth in
Paragraphs 1 through 180 of Section IV are herein incorporated by reference, the same as
if fully set forth verbatim for any and all purposes of this pleading, and further allege as
follows:
2. As a pendent state cause of action, WILLIAMSON COUNTY, WCSD,
TRAVIS COUNTY, and TCSD are the governmental entities that are responsible for the
actions and conduct of their employee, agents, representatives, deputies, and prosecutors
and are responsible and liable for the actions and conduct resulting in harm, injury,
losses, and damages to Plaintiffs that were reasonably foreseeable consequences of such
actions and conduct. HAMILTON and WILSON are liable as the sheriffs of TRAVIS
COUNTY, TCSD, and WILLIAMSON COUNTY, WCSD, respectively, and are
therefore responsible and liable for the actions and conduct of the deputies under their
command. By the conduct described in the foregoing paragraphs, these Defendants
breached their public trust duty owed to BARNES resulting in substantial injury,
damages, and loss.
JURY DEMAND
In accordance with Federal Rule of Civil Procedure 38, Plaintiffs demand a trial
by jury of all issues raised in this civil action that are triable of right, or by choice, to a
jury.
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DAMAGES
1. As a result of the foregoing unlawful and wrongful acts of Defendants,
jointly and severally, Plaintiffs have suffered general damages which include but are not
limited to the following: both physical and emotional injury, including but not limited to
financial losses, real property losses, personal property losses, and other losses to
BARNES and Plaintiffs in excess of $700,000.00, incurrence of medical bills in excess of
$250,000.00, liquidated damages in excess of $1,000,000.00, loss of family relations, loss
of business relations and contracts, loss of business assets and goodwill, loss of cell
phone, loss of diamond bracelet, pain and suffering, emotional and mental anguish, and
personal humiliation, shock and outrage, along with severe emotional distress, both in the
past and in the future, and loss of income and earning potential in the past and in the
future. BARNES seeks damages in the amount of $7,000,000.00 from the Defendants,
jointly and severally, and each of the Plaintiff children seek damages in the amount of
$1,000,000.00 each from the Defendants, jointly and severally. Plaintiffs seek
exemplary, punitive, or treble damages, reasonable and necessary legal fees, and all costs
of court to be assessed against Defendants, jointly and severally.
2. Said injuries have caused Plaintiffs to incur special damages which
include but are not limited to: lost income, defamation injury, damages to practice, lost
business opportunities, investment income, and personal property rights, both tangible
and intangible, and the incurrence of past medical bills, probable future medical bills,
incurrence of expert fees, aftorneys' fees, costs, and expenses associated with criminal
charges and resulting pretrial captivity, as well as this action caused by the excessive
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pretrial punishment and denial of fundamental structural rights.
3. Pursuant to the Civil Rights Attorney's Fees Award Act, 42 U.S.C.S. §
1988, a prevailing party in a § 1983 case is entitled to recover her attorney's fees. Hence,
Plaintiff further prays for all costs and attorney fees associated with bringing the present
case to trial. Further, with respect to the violations of the RICO statute by
WILLIAMSON COUNTY and WCSD, BARNES is entitled to recover attorney's fees
and costs of court, for which Plaintiffs pray. Additionally, with respect to the declaratory
judgment relief sought and other pendent state court causes of action and claims, the
Defendants' conduct as described herein and the resulting harm, damage and loss to
BARNES has necessitated the retention of an attorney. BARNES is, therefore, entitled to
recover from these Defendants, jointly and severally, an additional sum to compensate
the BARNES for a reasonable fee for such attorney's necessary services in the
preparation and prosecution of this action, as well as a reasonable fee for any and all
appeals to other courts.
4. In addition, Plaintiff prays for punitive damages against all individual
Defendants, jointly and severally, or as determined by the jury. Punitive damages are
designed to punish and deter persons such as Defendants who have engaged in egregious
wrongdoing. Punitive damages may be assessed under § 1983 when a Defendant's
conduct is shown to be motivated by malice, evil motive or intent, or when it involves
reckless or callous indifference to the federally-protected rights of others. While
governmental entities are absolutely immune from § 1983 awards of punitive damages,
such damages may be awarded against a public employee, public servant, or elected
official in their individual capacity. Therefore, Plaintiff alleges and prays for punitive
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damages against all individual Defendants, as such individual Defendants actually knew
that their conduct was unconstitutional, and/or was callously indifferent to its legality.
5. Further, in accordance with Federal Rule of Civil Procedure 8(a),
Plaintiffs request that this Court issue a declaratory judgment that Defendants unlawfully
deprived BARNES of her right to free speech, freedom of association, to privacy and to
be left alone, to be free of pretrial punishment and captivity, to a speedy trial, to a fair
jury, to represent herself, to one bail without unilateral modifications or breaches, to
exculpatory evidence, to due process, to equal protection under the law, to be free from
unreasonable searches and seizures, and right to redress of grievances without retaliation
and malicious, vindictive prosecutions.
6. Further, in accordance with Federal Rule of Civil Procedure 8(a),
Plaintiffs request that this Court permanently enjoin Defendants, and their agents and
those acting in concert with them, from maintaining an unconstitutional political
patronage system or retaliatory scam whereby freedoms of political beliefs, speech,
assembly, association, affiliation, and other valuable rights are infringed upon; and
requiring Defendants to adopt and implement written and enforceable policies and
procedures, along with a written policy and procedure to enforce, discipline, and timely
rectify any breach in these written policies and procedures to prevent these retaliatory,
malicious, and vindictive actions in the future.
7. Additionally, in accordance with Federal Rule of Civil Procedure 8(a),
Plaintiffs request that this Court permanently enjoin Defendants from further engagement
in these malicious, vindictive, and groundless prosecutions because BARNES is not
guilty as charged, their unconstitutional actions have forever deprived BARNES of a
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speedy and fair trial, and they have already extracted cruel and unusual punishment
pretrial and any further attempt to punish would be barred by double jeopardy
protections.
8. Further, in accordance with Federal Rule of Civil Procedure 8(a),
Plaintiffs request that this Court enter a monetary judgment for all actual and
consequential damages, both economic and non-economic, and both past and future, up
to the fullest extent allowed under the law, taking into consideration any applicable
statutory protective caps on recovery in suits of this nature; and enter a monetary
judgment in an amount sufficient to punish TIJML1NSON, KLEKAR, UNIDENTIFIED
THREE, COTTON, LERMA, BRINKMANN, TRAVIS, RICHTER, HERNANDEZ,
SCHEFFLER, BOGAN, HUGHEY, WAGGONER, FOSTER, RYE, HOBBS,
MCCABE, MCDONALD, BRADLEY, SWAIM, ESCAMILLA, MORGAN, SAENZ,
GUERRERO, HAMILTON, WILSON, ANDERSON, CARNES, DE LA VEGA,
SHAVER, SCHREIBER, HUMES, and any other agents, employees, or representatives
of WILLIAMSON COUNTY, TRAVIS COUNTY, WCSD, andlor TCSD who may have
participated in intentional, knowing, deliberate, malicious, vindictive, or retaliatory
actions against Plaintiffs, and sufficient in amount to deter them from engaging in such
constitutional infringements and unlawful conduct in the future.
PRAYER FOR RELIEF AND
DEMAND FOR JUDGMENT
WHEREFORE, in light of the foregoing, Plaintiffs respectfully request the
following:
1. a judgment pursuant to 22 U.S.C. § 2201 and 2202 and 42 U.S.C.
§ 1983 declaring that the actions of Defendants violated the
First,
Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the
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United States Constitution, and Texas Constitution, Art. I, § 3, 3a,
8, 9, 10, 11, lib, 12, 13, 15, 15-a, 16, 19, 23, 27, 28, and 29, and
intruded on Plaintiffs' privacy, seclusion, and right to be left alone
in violation of the Constitution, laws, and common laws of this
Nation and State;
2. an award of damages against the individual Defendants, jointly and
severally, for violating Plaintiffs' constitutional rights under the
United States and Texas Constitutions, and federal and Texas laws
and common laws, as well as the pendent state court claims;
3. an award of actual and consequential damages against TRAVIS
COUNTY and WILLIAMSON COUNTY for violating the
Plaintiffs' rights under the United States Constitution and federal
law and under the Texas Tort Claims Act, and against
WILLIAMSON COUNTY for the RICO violations;
4. an award of actual and consequential damages against all
Defendants, jointly and severally, for all monetary damages,
liquidated damages, medical bills, loss of earning potential, and
out-of-pocket costs and losses, including all lost wages and
income, lost property, costs, expenses, bills, invoices, pain and
suffering in the past and future, mental anguish and emotional
distress in the past and in the future, reputational damages, loss of
companionship, care, comfort, and solace, or other such damages
incurred or suffered as a direct, proximate, and foreseeable result
of consequence of the unlawful or unconstitutional conduct of said
Defendants;
5. an order directing all defendants to turn over and destroy any and
all derogatory and defamatory per se records, documents, or other
material generated by or resulting from the illegal, unlawful, or
unconstitutional actions of said Defendants, that would not exist
but for the wrong-doing of Defendants, expunging all criminal
records, and restoring BARNES to her pre-constitutional violations
status, including the erasure and striking of stigmata, flags, and
labeling associated with mental commitments;
6. an award of attorney's fees reasonably and necessarily incurred in
bringing and prosecuting this action;
7. an award of all costs of court, expert fees, and court reporter fees
for discovery in this cause, against all Defendants, jointly and
severally;
8., an award of enhanced damages (punitive or exemplary damages, or
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treble damages) as provided by common law or statute, from
Defendants, jointly and severally;
9. an award of pre- and post-judgment interest as recoverable at law;
and
10. such other and further relief, at law or in equity, as the Court
deems just and proper.
WHEREFORE PREMISES CONSIDERED, Plaintiffs pray that upon trial of
the merits, she recover compensatory damages against Defendants, jointly and severally;
that Plaintiff also recover punitive damages against Defendants in an amount to punish
and/or deter and to make an example of those Defendants in order to prevent similar
future conduct; and, that Plaintiff recover against each Defendant all reasonable and
necessary attorney's fees, court costs and expenses in regards to the present suit in
litigation. Moreover, Plaintiff prays for all pre-judgment and post judgment interest that
can be assessed against the Defendants in the event of recovery; and that Plaintiff recover
against each Defendant any and all other general or specific relief to which she may
prove herselfjustly entitled, whether at law or in equity.
Respectfully submitted,
Carolyn Barnes
721 Thompson Drive, Unit 2C
Kerrville, Texas 78028
BY:
Carolyn Barnes
State Bar No. 01761550
Attorney-in-Charge for Plaintiffs
Demand for Jury Trial
Plaintiff, , reby demands trial by jury pursuant to FED. R. CIV. P. 8(b).
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Carolyn Barnes JUL 1 6 2012
KSH-Unit 2C CLERK ij
WESTERN o-
721 Thompson Drive
Kerrville, Texas 78028
July 9, 2011
Clerk, U.S. District Court
Western District of Texas
United States Courthouse
200 W. 8th Street, Room 130
Austin, Texas 78701-9620
RE: Civil Action No. A-12-CA-028-LY, Carolyn Barnes v. Dennis Tumlinson, et al
Dear Clerk,
Enclosed please find the Third Amended Original Complaint for filing in the above
captioned cause. Due to the mailing restrictions, I am going to have to mail this pleading
in four separate envelopes and ask that you follow the page numbers when they arrive so
that it is re-assembled in order. I have also numbered the envelopes on the outside.
After receiving the notice of threat to dismiss for non-compliance with Rule 8, I
attempted to shorten the complaint over the weekend. After deleting approximate 100
pages, I found that I was deleting relevant portions necessary to show the Section 1983
cause of action. It is difficult to draft a pleading when the court has previously ordered
me to replead and include all causes of action and all defendants, knowing I have no
access to my files, records, or other documents necessary to prove an unmistakable habit,
custom, pattern, policy and procedure of retaliation and violations of constitutional rights
over a 15-year period.
I simply cannot satisfy both of the courts demands to include everything and yet remain
short and concise. This is not a case where there was only one event and a few
defendants. In the beginning of this campaign, there were only a few, but over the years,
WILLIAMSON COUNTY enlisted the aid and assistance of the law enforcement and
criminal justice system community with all of their false publications against me.
It is my hope that the court will take the nature of these proceedings into account, along
with the substantial and irreparable injuries suffered by my children and me.
Thank you for your kind assistance in this matter.
V truly yours,
Carolyn Barnes
7
:
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U.S. POSTAGE
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78711 $585
0002J49Q5
USPS TRACKING
NUMBER
9502 5112 9119
2195 5580 68
//
111
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Case 1:12-cv-00028-LY Document 18-5 Filed 07/16/12 Page 2 of 2
Case 1:12-cv-00028-LY Document 50 Filed 03/18/14 Page 1 of 3
1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS 2UIkPIAR 18 AM 11:39
AUSTIN DIVISION
CLERK L. I SIR1 URi
WESTER . ciF IEXAS
CAROLYN BARNES, §
PLAINTIFF, §
§
V. § CAUSE NO. 1:12-CV-028-LY
§
TRAVIS COUNTY SHERIFF'S §
DEPARTMENT, ET AL., §
DEFENDANTS. §
re 90
Before the court is the above styled and numbered cause filed by Plaintiff pro se Carolyn
Barnes on January 9, 2012. On February 10, 2014, the court rendered an order that, inter alia,
provided that Barnes must file an amended complaint not to exceed 30 pages, in a single, concise
document complying with Rule 8's pleading requirement, on or before Friday, March 14, 2014. The
order also provided that absent the filing of an amended complaint in compliance with Rule 8 by that
deadline, the court would dismiss Barnes's claims against all defendants. Also before the court is
Barnes's Motion for Copies of Relevant Pleadings and Motion to Extend Time filed February 26,
2014 (Clerk's Doc. No. 49). By her motion, Barnes requests "more time. . . due to her harsh
captivity by 'external forces," as well as copies of her original 569 page complaint.
In May 2012, the Magistrate Judge first directed Barnes to file an amended complaint on or
before May 31, 2012. Barnes requested, and was granted, two extensions of that deadline. On July
16, 2012, Barnes filed a 267-page Third Amended Complaint. Barnes supplemented her complaint
with a 248-page "Brief and Heightened Pleadings in Support of Plaintiff's Third Amended Original
Complaint," which, along with other supplements, brought the complaint to 569 pages. Due to the
voluminous nature of the pleadings, the Magistrate Judge, on January 22, 1013, directed Barnes to
TAB B
Case 1:12-cv-00028-LY Document 50 Filed 03/18/14 Page 2 of 3
replead her claims in compliance with Rule 8 no later than March 1, 2013. The Magistrate Judge
reminded her that failure to follow the court's directive could result in the dismissal of
her ease. In
and Due
response, Barnes filed a document titled "Plaintiff's Motion for a More Definite Statement
or Deficient and
Process Notice of the Exact Reasons the Third Amended Complaint is Defective
Motion to Extend Time to Amend after Receipt of Due Process Notice of How the Third
Amended
P. 8." In his
Complaint is Not a 'Coherent and Concise Complaint' or How it Violates Fed. R. Civ.
Report and Recommendation rendered April 25, 2013, the Magistrate Judge recommended
that this
with a
court dismiss with prejudice Barnes's claims against all defendants for failure to comply
court's order. See Fed. R. Civ. P. 41(b) (authorizing a court to dismiss a case for "failure to the
plaintiff. . . to comply with the[] federal rule or any order of court.").
this
On September 30, 2013, to give Barnes ample opportunity to cure the procedural defect,
court vacated its order accepting and adopting the Magistrate Judge's Report and Recommendation,
that
granted Barnes's request for an extension of time to file an amended complaint, and provided
on or
Barnes must file a single, concise document complying with Rule 8's pleading requirement
February
before October 23, 2013. Due to returned mail, Barnes requested another extension. On
to replead
10, 2014, the court granted the extension, warning her that this was her "final opportunity
her
her claims in a meaningful fashion." Should she fail to comply, the court would dismiss
she
complaint with prejudice under Rule 41(b). In her February 26, 2014 response, Barnes concedes
not filed an
received the court's February 10 order but fails to comply. As of this date, Barnes has
to comply
amended complaint. Instead, she asks for another extension. Barnes has, again, failed
with Rule 8's pleading requirement and an order of the court.
Case 1:12-cv-00028-LY Document 50 Filed 03/18/14 Page 3 of 3
Having considered the applicable law and the case file, the court concludes that Barnes's
claims against all defendants should be dismissed for failure to comply with the court's order. See
Fed. R. Civ. P. 41(b); see also Bryson v. United States, 553 F.3d 402 (5th Cir. 2008). Accordingly,
IT IS HEREBY ORDERED that Plaintiff Barnes's Motion for Copies of Relevant
Pleadings and Motion to Extend Time (Clerk's Doc. No. 49) is DENIED.
IT IS FURTHER ORDERED that Plaintiff Barnes's claims alleged against all defendants
in this action are DISMISSED WITH PREJUDICE.
SIGNED this day of March, 2014.
TED STA S DISTRICT JUDGE
3