in Re Richard Stephen Calkins

ACCEPTED
01-15-01009-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/1/2015 9:41:50 AM
01-15-01009-CV CHRISTOPHER PRINE
CLERK
NO. - 15 - - CV
IN THE COURT OF APPEALS FOR THE DISTRICT OF TEXAS
FILED IN
IN RE RICHARD STEPHEN CALKINS st
1 COURT OF APPEALS
HOUSTON, TX
Relator DEC 1, 2015
CHRISTOPHER A. PRINE,
CLERK
Original Proceeding from Cause No. 441,165
as continuation of Cause No. 378,993
In Probate Court at Law No. 2
Harris County, Texas
PETITION FOR WRIT OF MANDAMUS
Susan C. Norman
Texas Bar No. 15083020
Law Offices of Susan C. Norman
P . O. Box 52518
Houston, Texas 77052
713-882-2066 (Phone)
713-229-8328 (Facsimile)
suenorman@suenormanlaw.com
COUNSEL FOR RELATOR
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
1. Relator: Richard Stephen Calkins,
Trial and Appellate Counsel:
Susan C. Norman
Law Offices of Susan C. Norman
P. O. Box 52518
Houston, Texas 77052
713-882-2066 (Phone)
713-229-8328 (Facsimile)
suenorman@suenormanlaw.com
2. Respondents:
The Honorable Christine Butts
Probate Court No. 4, Suite ***
201 Caroline, 7th Floor
Houston, TX 77002
3. Real Party in Interest:
Carolyn James
Trial Counsel:
G. Wesley Urquhart
P. O. Box 272928
Houston, Texas 77277
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii - iv
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . v - vi
APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi - vii
STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 -2
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . 3
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 -10
A. This case is a continuation of the 2008 guardianship case from which
Hon. Butts voluntarily recused herself in 2011, a case in which Hon.
Mike Wood was disqualified in 2009 from presiding over these
parties... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 - 6
B. No other judge was presiding over the [failed]
guardianship case when Mary Olive Calkins died and
probate of her Last Will and Testament was filed. . . . . . . . . . . . . . . . 6
C. Probate of Mary Olive Calkins’ Last Will and Testament
fell into a court in which the judge had
voluntarily recused herself in 2011 . . . . . . . . . . . . . . . . . . . . . . . . . 6 - 8
D. Tex. Gov’t. Code 25.00255, et seq. changed Sept. 1, 2015,
leading to void order from Hon. Butts, which was used to
issue orders by Hon. Herman, and Hon. Burwell,
and potentially, Hon. Wood. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 - 10
D-1. Hon. Butts waited until the statute changed
on Sept. 1, 2015, to issue a
void “amended order of recusal.”.” . . . . . . . . . . . . . . . . . . . . . . . 8
D-2. Hon. Herman used Hon. Butts’ void
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“amended order of recusal” to issue orders
after the statute changed which could not have
been issued before it changed.. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
D-3. Hon. Herman issued a void order assigning Hon. Burwell,
ONLY to hear a motion to recuse
Hon. Wood, not a disqualification motion.. . . . . . . . . . . . . . . . . 9
D-4. On Nov. 20,2015, Hon. Burwell issued another
void order denying Hon. Wood’s disqualification
with no assignment, no notice, and no hearing.. . . . . . . . . . . 10
D-5. On December 1, 2015, there is a hearing set before disqualified
judge, Hon. Mike Wood, which will allow him to resume
jurisdiction over parties and cases over which he was
disqualified in 2009 from presiding... . . . . . . . . . . . . . . . . . . . 10
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 11 - 13
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 - 26
A. Standard of review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 - 14
B. Hon. Butts’ Sept, 2, 2015, void order
violates due process.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
C. Hon. Butts failed to comply with the
rules governing recusal... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 - 16
D. Even Hon. Butts’ plenary power
expired by August 29, 2015.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
E. Hon. Butts’ Sept. 2, 2015, void order cannot authorize subsequent
void orders by Hon. Herman and Hon. Burwell that
permit a disqualified judge to
resume jurisdiction of cases and parties... . . . . . . . . . . . . . . . . . . 17 - 18
F. Hon. Herman’s orders based on Hon. Butts’
void order, are void, as well, as are Hon. Burwell’s
orders void when based on Hon. Herman’s orders... . . . . . . . . 18 - 19
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G. All the void orders violate Fourteenth Amendment
due process protection to Richard Stephen Calkins
and Mary Olive Calkins and/or her estate.. . . . . . . . . . . . . . . . . 19 - 20
H. Once recused or disqualified,
a judge may not re-enter the case.. . . . . . . . . . . . . . . . . . . . . . . 20 - 22
I. The byzantine, cascading series of void orders
started with Hon. Butts’ Sept. 2, 2015, order... . . . . . . . . . . . . . 23 - 24
J. Using the void orders, disqualified judge,
Hon. Wood, is resuming jurisdiction of the cases.. . . . . . . . . . . 24 - 25
K. One of the fundamental goals of the American
legal system is equal justice to all under the law.. . . . . . . . . . . . . . . . 25
L. Mandamus is the only adequate remedy for Richard Stephen Calkins
when challenging a void order... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1. Mandamus is the proper remedy for challenging
a judge’s resumption of jurisdiction
after disqualification and /or recusal... . . . . . . . . . . . . . . . . . . 26
2. Mr. Calkins will suffer immediate and irreparable harm.. . . . 26
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 - 27
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . 28
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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INDEX OF AUTHORITIES
Cases Page
In re Alpert, 276 S.W.3d 592, 599-600
(Tex. App.–Houston[1st Dist.] 2008, r’hg denied... . . . . . . . . . . . . . 16
Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985).. . . . . . . . . . . . . . . 18
Ex Parte Eastland, 811 S.W.2d 571 (Tex. 1991). . . . . . . . . . . . . . . . . . . . . . 19
In re Hecht, 213 S.W.3d 547, 565, 2006 Tex. Lexis 1340. . . . . . . . . . . . . . 27
McGrew v. Heard, 779 S.W.2d 455, 457
(Tex. App.--Houston [1st Dist.] 1989, orig. proceeding).. . . . . . . 13, 26
Moody v. Simmons, 858 F.2d 137, 142 (3d Cir. 1988).. . . . . . . . . . . . . . . . 21
In re Murchison, 349 U.S. 133, 136 (1955). . . . . . . . . . . . . . . . . . . . . . . 14, 20
In re Nitla S.A. de C.V., 92 S.W.3d 419, 422
(Tex. 2002) (orig. proceeding).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
In re Susan C. Norman, 191 S.W.3d 858, 861
(Tex. App.–Houston[14th Dist.) 2006 Tex. App. Lexis 3292. . . . . . 16
In re Prudential Ins. Co. of Am.,
148 S.W.3d 124, 135-136 (Tex. 2004).. . . . . . . . . . . . . . . . . . . . . 13, 14
In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605,
3 Tex. Sup. Ct. J. 1005 (Tex. 2000) (per curiam).. . . . . . . . . . . . 13, 26
State Bar v. Heard, 603 S.W.2d 829 (Tex. 1980)
1980 Tex. Lexis 363.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
In re Union Pac. Res. Co., 969 S.W.2d 427, 428,
41 Tex. Sup. Ct. J. 591 (Tex. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429, 431,
29 Tex. Sup. Ct. J. 202 (Tex. 1986). . . . . . . . . . . . . . . . . . . . . . . . 13, 26
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992); 1992 Lexis 14... . . . 14
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Statutes Page
Fourteenth Amendment to United States Constitution.. . . . . . . . . . . . . 19,20
TEX. CONST. art. V, § 11.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Tex. Gov’t. Code 25.00255, et seq.. . . . . . . . . . . . . . . . 8, 11, 12, 15, 17, 22, 23
Tex. R. Civ. Proc. 306a.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Treatises Page
1997 B.Y.U. L. Rev. 423, 450,
citing In re Murchison, 349 U.S. 133, 136 (1955). . . . . . . . . . . . . . . 14
Donald Nugent, Judicial Bias, 42 Clev. St. L. Rev. 1, 17, 1994... . . . . . . . 25
Appendices
Appendix 1 Feb. 02, 2009, First Amended Motion Disqualify Judge
Wood on Constitutional Grounds
Appendix 2 March 05, 2009, Rep Record Motion to Disqualify Mike
Wood on Constitutional Grounds
Appendix 3 March 05, 2009, Order Granting Motion to Disqualify
Mike Wood on Constitutional Grounds
Appendix 4 Orders of Voluntary Recusal & Disqualification of Harris
County Probate Judges
Appendix 5 08-10-11 - Excerpt Rep Rec 378993 - James Listed Hon.
Sebesta Name First
Appendix 6 03-01-2013 - Hon Weiman Order Dismiss 2012-51725
Due James Lack Standing
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Appendix 7 Dec. 03, 2012, Hon. Sebesta Voluntary Recusal from
Calkins Cases
Appendix 8 07-29-15 - James Motion Recuse Hon. Butts & Motion
Consolidate wi Guardianship Cases.
Appendix 8.1 July 30, 2015 Judge Butts' Recusal at James Request
Appendix 9 11-02-15 - Harris County Clerk Docket 441165 as of 11-00
A.M.
Appendix 10 Hon. Butts Sept. 2, 2015 Amended Order of Recusal
Appendix 11 Sept. 8, 2015 - Judge Herman Minute Order 15-065 Order
Clerk to Transfer Case to Probate Ct. 2
Appendix 12 Calkins by Libby Motion Recuse and-or Disqualify Hon.
Wood
Appendix 13 Sept. 15, 2015 - Judge Wood Refer Motion to Recuse
and-or Disqualify
Appendix 14 Sept. 28, 2015 - Judge Herman Assign Judge Burwell
Hear ONLY Motion to Recuse not Disqualify
Appendix 15 Oct. 16, 2015 - Judge Burwell Order Deny Motion to
Recuse and Disqualify
Appendix 16 Signed Order on Motion Re-Urging Constitutional
Disqualification of Judge Mike Wood
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STATEMENT OF THE CASE
Nature of the case:
This probate case is a continuation of [failed, never completed]
guardianship litigation [Mary Olive Calkins as proposed ward] begun by
Carolyn James in 2008, involving Mary Olive Calkins, Carolyn James,
Richard Stephen Calkins, and Michael Easton, in which the Honorable
Mike Wood was constitutionally disqualified in 2009, and which now
continues as probate of Mary Olive Calkins’ Last Will and Testament.
Richard Stephen Calkins asserts that the 2009 order granting of the motion
to disqualify the Hon. Mike Wood on constitutional grounds precludes
Hon. Mike Wood from sitting on any case in which Mary Olive Calkins or
her estate, Carolyn James, and Richard Stephen Calkins are parties.
Respondent:
Respondent is Honorable Christine Butts.
Respondent’ s actions:
Hon. Butts voluntarily recused herself in 2011 from the Mary Olive
Calkins guardianship involving all the above parties, supra, without
ever having conducted any hearing in which testimony and evidence
were presented. On July 15, 2015, Hon. Butts held a hearing in which
she made statements about Mary Olive Calkins’ prior capacity and
concluded she did not need to re-recuse herself from the probate
matter.
After Carolyn James filed a motion to recuse Hon. Butts and a motion
to consolidate with the guardianship case on July 29, 2015, Hon.
Butts voluntarily recused herself by order issued July 30, 2015, and
did not refer the case pursuant to Tex. Gov’t. Code §25.00255, et seq.
Hon. Butts took no further action to refer the case pursuant to Tex.
Gov’t. Code §25.00255, et seq for thirty-three (33) days until after she
issued her “amended order of recusal” on September 2, 2015, after
the Tex. Gov’t. Code §25.00255, et seq., statute changed on
September 1, 2015, then referred the case to Hon. Herman to effect
transfer which he did on September 8, 2015, transferring it to Probate
Court No. 2 [Mike Wood presiding].
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Relief sought:
Respondent Hon. Christine Butts:
Relator asks this Court to issue a writ of mandamus directing Hon.
Christine Butts to:
1. vacate her September 2, 2015, “Amended Order of Recusal;”
2. As required on July 30, 2015, after her order of [re-] recusal,
notify the clerk who serves the statutory probate courts of
Harris County to immediately notify the presiding judge of the
administrative judicial district and request that the presiding
judge of the administrative judicial district assign a judge
pursuant to Section 25.002201 as required on July 30, 2015.
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STATEMENT OF JURISDICTION
This Court has jurisdiction under Texas Government Code Section
22.221(b) to issue a writ of mandamus against a judge of a district or
county court in its district. Because this is an original proceeding
challenging the erroneous actions of a statutory probate judge in Harris
County in issuing a void order which led to a series of additional orders
based on it, this Court has jurisdiction to issue a writ of mandamus under
well-established Texas precedent.
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STATEMENT OF ISSUES PRESENTED
1. Whether after Hon. Butts entered her order of voluntary [re-
]recusal on July 30, 2015 [following her voluntary recusal in
2011], she was required to follow Tex. Gov’t. Code
§ 25.00255(g)((1)(B), subject to subsection (l) in effect on July
30, 2015;
2.. Whether after Hon. Butts entered her order of voluntary [re-
]recusal on July 30, 2015, she was precluded from making any
further orders in the case, including a sua sponte “amended
order of recusal” thirty-three (33) days later, after the Tex.
Gov’t. Code §25.00255, et seq., statute changed, and referring
the case to Hon. Herman to transfer;
3. Whether Hon. Butts’ void order of Sept. 2, 2015, could confer
any legitimacy on the two orders based on that order entered by
Hon. Herman and by the two orders entered by Hon. Burwell,
thus permitting the cases to be transferred back to Probate
Court No. 2, disqualified judge Hon. Mike Wood presiding;
4. Whether a disqualified judge, Hon. Mike Wood, can later
resume jurisdiction of the parties and cases;
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STATEMENT OF FACTS
A. This case is a continuation of the 2008 guardianship
case from which Hon. Butts voluntarily recused
herself in 2011, a case in which Hon. Mike Wood was
disqualified in 2009 from presiding over these parties.
In 2008 Carolyn James filed a [now-failed and never completed]
guardianship case [Cause No. 378,993] over Mary Olive Calkins which fell
into Probate Court No. 2, Hon. Mike Wood presiding. Richard Stephen
Calkins, individually and as agent-in-fact for Mary Olive Calkins, opposed
the guardianship. Michael Easton was made a party to the guardianship by
the Honorable Mike Wood when he sought sanctions against both Mr.
Easton—although at the time motion for sanctions was filed, Mr. Easton
had not appeared as a party—and Susan Norman, counsel for Richard
Stephen Calkins
Thereafter, in 2009, a motion to disqualify the Honorable Mike Wood
on constitutional grounds was filed. App. 1. The Honorable Olen
Underwood assigned himself to hear the First Amended Motion to
Disqualify the Honorable Mike Wood on Constitutional Grounds, holding
a hearing on March 5, 2009, App. 2, and after finding that Carolyn James
joined in the motion, the motion was granted App. 3.
Thereafter the Honorable Mike Wood did not further preside over the
case, and the other statutory probate court judges in Harris County
-5-
voluntarily recused themselves (Hon. Christine Butts, Hon. William
McCullough, and Hon. Rory Olsen, Hon. Loyd Wright). App 4, orders of
recusal.
B. No other judge was presiding over the [failed]
guardianship case when Mary Olive Calkins died and
probate of her Last Will and Testament was filed.
Subsequently, after James’ request and the agreement of all parties
the Hon. Olen Underwood assigned the Honorable Patrick Sebesta to the
guardianship case, which had been re-assigned to Probate Court No. 4 in
2011. App 5, RR Cause No. 378,993. After Ms. James sued the Honorable
Olen Underwood and the Honorable Patrick Sebesta in September, 2012 in
district court for “not doing their job,” Ms. James’ case was dismissed due
to her lack of standing to sue and the judicial immunity of both judicial
officers. App. 6. See, James v. Underwood, et al, 438 S.W.3d 704
(Tex.App.–Houston [1st Dist.] 2014, r’hg denied). Subsequently, the Hon.
Patrick Sebesta voluntarily recused himself from all Calkins cases on
December 3, 2012, App. 7, and there was no judge subsequently assigned to
the guardianship case.
C. Probate of Mary Olive Calkins Last Will and
Testament fell into a court in which the judge had
voluntarily recused herself in 2011
Mary Olive Calkins was a proposed ward who died July 8, 2015, with
no guardian appointed. The probate of Mary Olive’s Last Will and
-6-
Testament is a continuation of the litigation involving both Richard
Stephen Calkins and Carolyn James, children of Mary Olive Calkins. Local
Rules mandate that a new application to admit will to probate be filed in
same court as the guardianship cases.
After the competing applications to probate Mary Olive’s Last Will
and Testament were filed, on July 29, 2015, Ms. James filed Motion to
Recuse the Honorable Christine Butts and Motion to Consolidate With the
Guardianship Cases, App. 8 the judge of Probate Court No. 4, the
Honorable Christine Butts, [re-]recused herself on motion by Carolyn
James, issuing her order of recusal on July 30, 2015. App. 8.1.
Pursuant to the local rules, the probate case was required to be
consolidated with the still-pending, failed guardianship case.
Local Rules of Harris County Probate Courts
2.2 Case Numbering - New Matters. All new estate
administrations, guardianships, trust matters (including
testamentary trusts when the underlying estate has been
closed) that are filed in the Probate Courts of Harris
County shall be assigned to a court in accordance with
Section 25.1034 of the Government Code. Each case shall
be assigned a docket number sequentially. All matters
relating or appertaining to an estate or guardianship that
has not been closed as provided in the Probate Code,
including proceedings upon trusts created by a decedent's
will, shall remain in such court subject to an order of
transfer as with any case, and shall retain the original
docket number with an appropriate sub-file number.
Each subsequent matter filed involving the same decedent or
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proposed ward shall be filed in the original file, under the same
docket number and in the same court as the original filing. . . .
Those matters that are principally concerned with the
administration of the estate are "core matters" and should be
filed under the main cause number.
2.5.1 Probate of wills, issuance of letters testamentary,
administration and guardianship;
2.5.3 Contest to will, heirship, administration (before and after
the grant of letters).
Between July 30, 2015, and August 31, 2015, the Clerk’s Record App.
9, P 5 - 6 demonstrates an absence of Hon. Butts’ request to the probate
clerk to follow the statute in effect on July 30, 2015, that the probate clerk
take the actions mandated by Tex. Gov’t. Code § 25.00255(l) to:
. . . immediately notify the presiding judge of the
administrative judicial district [on July 30, 2015, the Hon. Olen
Underwood] and request that the presiding judge of the
administrative judicial district assign a judge under Section
25.002201.
D. Tex. Gov’t. Code 25.00255, et seq. changed Sept. 1, 2015,
leading to void order from Hon. Butts, which was used to
issue orders by Hon. Herman, and Hon. Burwell, and
potentially, Hon. Wood
D-1. Hon. Butts waited until the statute changed on Sept. 1,
2015, to issue a void “amended order of recusal.”
On September 2, 201t, thirty-three (33) days after her July 30, 2015,
voluntary [re-]recusal order, and after Tex. Gov’t. Code § 25.00255
changed on September 1, 2015, Hon. Butts issued an “Amended Order of
Recusal,” App. 10, referring her order of recusal to the Hon. Guy Herman.
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D-2. Hon. Herman used Hon. Butts’ void “amended order
of recusal” to issue orders after the statute changed
which could not have been issued before it changed.
On September 8, 2015, the Hon. Guy Herman ordered the Harris
County Clerk to transfer the probate case to Probate Court No. 2
[disqualified jurist, Hon. Mike Wood presiding]. App. 11.
On September 15, 2015, [Joseph Libby, now-former] counsel for Mr.
Calkins filed Motion for Recusal and/or Disqualification of Judge Mike
Wood Pursuant to Sec. 25.00255 of the Texas Government Code. App. 12.
On September 15, 2015, Hon. Wood referred the Motion for Recusal
and/or Disqualification of Judge Mike Wood Pursuant to Sec. 25.00255 of
the Texas Government Code to Judge Herman. App. 13.
D-3. Hon. Herman issued a void order assigning Hon.
Burwell, ONLY to hear a motion to recuse Hon. Wood,
not a disqualification motion.
On September 28, 2015, Hon. Herman issued a void order of
assignment of Hon. Gladys Burwell to hear only a motion to recuse
Hon. Wood, not disqualification. App. 14.
On October 16, 2015, Hon. Burwell denied motion to recuse and
disqualify by her void written order. App. 15.
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D-4. On Nov. 20,2015, Hon. Burwell issued another void
order denying disqualification with no assignment, no
notice, and no hearing.
On November 2, 2015, Calkins through current counsel filed Motion
Re-Urging Constitutional Disqualification of Judge Mike Wood, Based On
the Prior, March 5, 2009, Disqualification of Judge Mike Wood In Case
Involving Mary Olive Calkins, Carolyn James, and Richard Stephen
Calkins, In Which Hon. Olen Underwood Found Carolyn James Joined in
the Motion for Disqualification. (“Motion Re-Urging Constitutional
Disqualification”) App. 12.
With no new [void] assignment to “review” a matter of
disqualification of Hon. Wood 9even under the first void assignment on
Sept. 28, 2015,) the Hon. Gladys Burwell “reviewed” the Motion Re-Urging
Constitutional Disqualification, without notice and without holding a
hearing, issued another void order denying the it on November 20, 2015.
App. 16
D-5. On December 1, 2015, there is a hearing set
before disqualified judge, Hon. Mike Wood, which
will allow him to resume jurisdiction over parties and
cases over which he was disqualified in 2009 from
presiding.
A hearing by Ms. James to appoint a temporary administrator is set
in Probate Court No. 2, Mike Wood presiding, for December 1, 2015.
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SUMMARY OF THE ARGUMENT
Parties are entitled to due process in all aspects of a trial, and the
most basic consideration is a fair trial before an impartial judge.
Mandamus is appropriate when a trial court enters a void order and
sets up a cascading series of void orders based on it which appear to be
designed to permit a disqualified judge, Hon. Mike Wood, to resume
jurisdiction of a case or over parties over whom he formerly presided.
Once a judge is disqualified or recused, that judicial officer cannot
later take action in the case or on a continuation of the case involving the
same parties.
After the March 5, 2009, hearing in which the Hon. Olen Underwood
found that Ms. James joined in the motion, he granted the motion to
disqualify the Hon. Mike Wood on constitutional grounds.
Because the Hon. Mike Wood was constitutionally disqualified in
2009 from the guardianship case with these same parties, and the probate
case continues with the same parties, the provisions of the 2009 Tex. Gov’t.
Code § 25.00255, et seq., are still applicable to this case, and these parties.
As of March, 2011, the remaining three (3) statutory probate judges,
including the Hon. Christine Butts, had voluntarily recused themselves
from the guardianship case. As a result, all four (4) statutory probate
judges in Harris County stand recused or disqualified for the continuation
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of the continuation of the guardianship litigation as the probate of the last
will and testament of the decedent who was the proposed ward.
Once Hon. Butts [re-]recused herself on July 30, 2015, her mandated
course of action was under the then-current Tex. Gov’t. Code § 25.00255, et
seq. Hon. Butts could take no further action in the case other than request
the clerk serving the statutory probate courts to request the presiding judge
of the administrative judicial district to assign a judge under Section
25.002201 to preside over the case.
Hon. Butts’ “Amended Order of Recusal” entered thirty-three (33)
days after her [re-]recusal order of July 30, 2015, was void, and did not
authorize further action by anyone.
Hon. Herman could not use her void “Amended Order of Recusal” of
September 2, 2015, to take action he was precluded from taking before the
September 1, 2015, Tex. Gov’t. Code § 25.00255 statute changed.
Hon. Burwell’s assignment is void and her orders are void.
Hon. Mike Wood still stands disqualified in the case.
The Tex. Gov’t. Code § 25.00255, et seq., which was effective on July
30, 2015, controls this case and the the presiding judge of the
administrative judicial district must assign a judge under Section
25.002201 to preside over the case.
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Mandamus is proper because Richard Stephen Calkins has no
adequate remedy by appeal to contest the void orders entered by Hon.
Butts, and subsequently by Hon. Herman and Hon. Burwell, and
prospectively, by Hon. Wood. Richard Stephen Calkins will suffer
immediate and palpable harm if the disqualified judge, Hon. Wood, is
permitted to resume jurisdiction over the cases and parties.
ARGUMENT
A. Standard of review.
Because Hon. Butts’ order of September 2, 2015, is void, mandamus
will issue to correct a void order of a trial court. 1 Further, the Texas
Supreme Court has held that relator need not show that he lacks an
adequate appellate remedy if an order challenged by writ of mandamus is
void. 2
Mandamus is available to correct a trial court’s clear abuse of
discretion when there is no other adequate remedy available by appeal. 2
When a trial court fails to apply the law correctly or fails to apply the law to
1
Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429, 431, 29 Tex. Sup.
Ct. J. 202 (Tex. 1986); McGrew v. Heard, 779 S.W.2d 455, 457 (Tex.
App.--Houston [1st Dist.] 1989, orig. proceeding).
2
In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605, 43 Tex. Sup. Ct. J.
1005 (Tex. 2000) (per curiam).
2
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-136 (Tex. 2004).
-13-
the facts, it abuses its discretion.3 A trial court abuses its discretion if it acts
in an arbitrary or unreasonable manner, without reference to any guiding
rules or principles. 4 Mandamus is also available when a trial court either
(1) violated a duty imposed by law or (2) clearly abused its discretion. 5
B. Hon. Butts’ Sept, 2, 2015, void order violates due
process.
One of the most fundamental tenants of due process is that every
6
litigant is entitled to a fair trial before an unbiased decision maker.
C. Hon. Butts failed to comply with the rules governing
recusal.
Although she had already voluntarily recused herself in 2011, when
requested to do so again by Carolyn James the Honorable Christine Butts
re-recused herself on July 30, 2015, after hearing in which she resumed
jurisdiction over the cases and parties.
Once Hon. Butts entered her voluntary recusal—for the second
time—she could take no further action in the case and her next actions were
governed by § 25.00255(g)((1)(B) — subject to subsection (l). Hon. Butts
3
Id. at 135.
4
In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig.
proceeding).
5
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992); 1992 Lexis 14.
6
1997 B.Y.U. L. Rev. 423, 450, citing In re Murchison, 349 U.S. 133, 136
(1955).
-14-
was required to first adhere to Tex. Gov’t Code § 25.00255(g)((1)(B)(1-2):
(g) A judge who recuses himself or herself:
(1) shall enter an order of recusal and:
(B) subject to Subsection (l), if the judge serves a
statutory probate court located in a county with more
than one statutory probate court, request that the clerk
who serves the statutory probate courts in that county
randomly reassign the case to a judge of one of the other
statutory probate courts located in the county; and
(2) may not take other action in the case except for good cause
stated in the order in which the action is taken.
Then, Tex. Gov’t Code § 25.00255 subsection (l) took effect because all
statutory probate judges in Harris County were either recused or
disqualified, App. 4, supra:
(l) If a clerk of a statutory probate court is unable to reassign a
case as requested under Subsection (g)(1)(B) or (i-3)(2) because
the other statutory probate court judges in the county have
been recused or disqualified or are otherwise unavailable to
hear the case, the clerk shall immediately notify the presiding
judge of the administrative judicial district and request that the
presiding judge of the administrative judicial district assign a
judge under Section 25.002201 to hear the case.
The Hon. Christine Butts did not follow the mandates of Tex. Gov’t
Code § 25.00255, et. seq., after her July 30, 2015, re-recusal at any time
prior to August 31, 2015, the last day the 2009 version of Tex. Gov’t Code
§ 25.00255, et. seq., was still in effect. The clerks’ record, App. 9, P 5-6,
also contains no order from Hon. Butts sending her voluntary recusal order
to the presiding judge of the administrative judicial district as she was
required to do.
-15-
Since 2008, the procedure a recused judge was mandated to follow
was made clear in the Alpert 7 mandamus, and on July 30, 2015, the
procedure was still valid:
We hold that the authority to reassign cases after a party has
moved for recusal vests with Judge Underwood as the regional
administrative presiding judge, and not Judge Herman, as the
presiding judge of the statutory probate courts. TEX. R. CIV. P.
18a. Accordingly, the minute orders are void, and we direct
Judge Herman to vacate them.
We hold that Texas Rule of Civil Procedure 18a vests the
appropriate regional presiding administrative judge, not the
[*600] presiding administrative judge for the statutory probate
courts, with the duty to reassign probate [**19] cases once a
motion to recuse has been granted. Accordingly, the orders in question are
void, and we direct the presiding administrative judge for the probate
courts to vacate them. Alpert @ 599-600
Coincidently, one day after Tex. Gov’t Code § 25.00255, et. seq.,
changed, some thirty-three (33) days after her order of recusal, instead of
following the statute, Hon. Butts issued a new, void order of amended
recusal and forwarded it to Hon. Guy Herman. Because Hon. Butts failed
to comply with the rules governing motions for recusal, all her subsequent
action, including her order are void. 8
7
In re Alpert, 276 S.W.3d 592, 599-600 (Tex. App.–Houston[1st Dist.]
2008, rh’g denied.
8
In re Susan C. Norman, 191 S.W.3d 858, 861 (Tex. App.–Houston[14th
Dist.) 2006 Tex. App. Lexis 3292.
-16-
D. Even Hon. Butts’ plenary power expired by August 29, 2015.
Even, arguendo, if the mandate of Tex. Gov’t. Code § 25.00255, et.
seq., were not controlling—which it is—under the most generous extension
of time for a court to act on its orders, Hon. Butts’ plenary power only could
only extend for 30 days after the order was entered, making her
amendment to her order also void under the Rules after August 29, 2015.
Tex. R. Civ. Proc. 306a.
E. Hon. Butts’ Sept. 2, 2015, void order cannot authorize
subsequent void orders by Hon. Herman and Hon. Burwell
that permit a disqualified judge to resume jurisdiction of
cases and parties.
Because the order entered by Hon. Butts on September 2, 2015, is
void due to her failure on July 30, 2015, to comply with the rules governing
motions for recusal, ie., Tex. Gov’t. Code § 25.00255, et. seq., her failure
renders void all actions and orders based on that order, including the two
Minute Orders entered by Hon. Herman and the two orders entered by
Hon. Burwell. When an order is void, it simply means the order in question
never existed and is not capable of being revived, waived, ratified, amended
or fixed. An order is void when it is apparent that the court rendering the
order had no jurisdiction of the parties, no jurisdiction of the subject
matter, no jurisdiction to enter the judgment, or no capacity to act as a
-17-
court. 9. The order is not merely invalid or voidable; it is void from its
inception. See Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987). A void
order is entirely null within itself; it is not susceptible to ratification or
confirmation, and its nullity cannot be waived. See In re Guardianship of
B.A.G., 794 S.W.2d 510 (Tex. App.-Corpus Christi[13th Dist.] 1990) (void
judgment) (citing Easterline v. Bean, 49 S.W.2d 427, 429 (1932); American
Universal Ins. Co. v. D.B.&B., Inc., 725 S.W.2d 764, 766 (Tex. App.-[13th
Dist.] 1987, writ ref'd n.r.e.).
F. Hon. Herman’s orders based on Hon. Butts’ void order, are
void, as well, as are Hon. Burwell’s orders void when based
on Hon. Herman’s orders.
The initial effect of the void order of Hon. Butts is to give authority to
Hon. Herman to transfer the case to Probate Court No. 2, to Hon. Mike
Wood, a disqualified judge, presiding.
When Hon. Herman’s Sept. 8, 2015, order of transfer to Probate
Court No. 2 was challenged on Sept. 15, 2015, Hon. Herman used the void
order of Hon. Butts to enter yet another void order assigning Hon. Burwell
to hear the July 15, 2015, motion to recuse / disqualify. Assuming
arguendo, there could possibly have been any validity to the order
assigning Hon. Burwell, the void order of assignment only assigned her to
9
Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985)
-18-
hear a motion to recuse, not disqualify. If Hon. Burwell’s order of Oct.
16, 2015, were not void already, it would be void because she was not
assigned to consider disqualification. 10
Finally, after Richard Stephen Calkins re-urged Hon. Wood to accept
his 2009 disqualification on Nov. 2, filing the Motion Re-Urging
Constitutional Disqualification, on November 20, 2015, with no notice of
hearing and opportunity to respond, Hon. Burwell entered yet another void
order denying the motion, apparently based on her prior void assignment
by Hon. Herman.
G. All the void orders violate Fourteenth Amendment due
process protection to Richard Stephen Calkins and Mary
Olive Calkins and/or her estate.
The final outcome of the cascade of void orders beginning with Hon.
Butts’ Sept. 2, 2015, void order is to place Richard Stephen Calkins, Mary
Olive Calkins and/or her estate, and Carolyn James in Probate Court No. 2,
with a constitutionally disqualified judge, Hon. Mike Wood, presiding over
the cases from which he was constitutionally disqualified in 2009. TEX.
CONST. art. V, § 11. Once it is determined that a judge is constitutionally
disqualified from sitting in a case, the judge is without authority to act and
10
Ex Parte Eastland, 811 S.W.2d 571 (Tex. 1991)
-19-
the judge's rulings are void. 11
More than 50 years ago the Supreme Court held that”
[U]nder the Due Process Clause no judge "can be a judge in his own
case [or be] permitted to try cases where he has an interest in the
outcome." 12
Due process as protected by the Fourteenth Amendment to the United
States Constitution and the Texas Constitution forbids a disqualified judge
from re-entering the case.
The Supreme Court has stated . . .that a fundamental
requirement of due process is that a litigant is entitled to "[a]
fair trial in a fair tribunal." Murchison, 349 U.S. at 136. In
order to fulfill this constitutional requirement, the Court has
held that it violates the Fourteenth Amendment "to subject [a
person's] liberty or property to the judgment of a court the
judge of which has a direct, personal, substantial, pecuniary
interest in reaching a conclusion against him in his case."
Tumey v. Ohio, 273 U.S. 510, 523 (1927). Likewise, due process
mandates that no judge "can be a judge in his own case [or be]
permitted to try cases where he has an interest in the outcome."
Murchison, 349 U.S. at 136. Although the interest cannot be
defined with precision, the test is whether the situation "would
offer a possible temptation to the average man as a judge... not
to hold the balance nice, clear and true." Id. (quoting Tumey,
273 U.S. at 532). 1997 B.Y.U. L. Rev. 423, at 438.
H. Once recused or disqualified, a judge may not re-enter the
case.
Once a judge is recused as Hon. Butts is—a lower standard than the
11
In re Union Pac. Res. Co., 969 S.W.2d 427, 428, 41 Tex. Sup. Ct. J. 591
(Tex. 1998).
12
In re Murchison, 349 U.S. 133, 136 (1955).
-20-
constitutional disqualification of Hon. Wood here—she is always recused
from a case. 13
Whether the order says “recused,” or “disqualified,” is not
determinative; the motion heard by the Hon. Underwood only requested
that Hon. Mike Wood be disqualified on constitutional grounds, and the
prayer for relief only requests disqualification on constitutional grounds;
the word, “recuse” does not appear in the prayer for relief. The courts look
to the substance of a plea for relief to determine the nature of the pleading,
not merely at the form of title given to it; the prayer for relief in the motion
14
requesting disqualification, controls.
The ministerial act exception, ie., non-discretionary actions a court
can take that do not involve exercising judicial discretion or actions that
affect the rights of a party, allow a court to act in the case. The non-
discretionary, ministerial act required to be taken by Hon. Butts was to
follow the mandate Tex. Gov. Code § 25.00255(g)((1)(B)—subject to
subsection (l)—that Judge Butts request that the clerk who serves the
statutory probate courts in Harris County randomly reassign the case to a
judge of one of the other statutory probate courts located in the county.
13
Moody v. Simmons, 858 F.2d 137, 142 (3d Cir. 1988) ("Once a judge has
disqualified himself, he or she may enter no further orders in the case.").
14
State Bar v. Heard, 603 S.W.2d 829 (Tex. 1980) 1980 Tex. Lexis 363.
-21-
Because, however, all judges in Harris County were either voluntarily
recused or disqualified, the clerk who serves the statutory probate courts in
Harris County was then mandated to follow the statute, Subsection (l) of
Tex. Gov. Code § 25.00255:
Tex. Gov. Code § 25.00255(l) If a clerk of a statutory probate
court is unable to reassign a case as requested under Subsection
(g)(1)(B) or (i-3)(2) because the other statutory probate court
judges in the county have been recused or disqualified or are
otherwise unavailable to hear the case, the clerk shall
immediately notify the presiding judge of the administrative
judicial district and request that the presiding judge of the
administrative judicial district assign a judge under Section
25.002201.
Instead, the clerk’s record, App. 9, P 5-6, supra, demonstrates no
compliance by Hon. Butts with the statute on July 30, 2015, or at any time
up through August 31, 2015, the last day before the statute, Tex. Gov. Code
§ 25.00255, et seq., changed on September 1, 2015. Hon. Butts had no
discretion to refuse to make the request supra, to the clerk as set out above.
By her void order thirty-three (33) days after her order re-recusing herself,
Hon. Butts put into motion a series of void orders that now place these
parties back in Probate Court No. 2, with disqulalified Hon. Mike Wood
presiding over the same parties from whom he was disqualified from
presiding over on March 5, 2009.
-22-
I. The byzantine, cascading series of void orders started with
Hon. Butts’ Sept. 2, 2015, order.
What the clerk’s record does demonstrate is that:
1. coincidently, one day after the Tex. Gov. Code § 25.00255
changed on September 1, 2015, Hon. Butts issued her void
order of September 2, 2015, referring the case to Hon. Herman
instead of having followed the statute at any time prior to
September 1, 2015;
2. using Hon. Butts’ void order, Hon. Herman issued a void order
on September 8, 2015, Minute Order 2015-065, which ordered
the probate clerk of Harris County to transfer the probate
matter to Probate Court No. 2 [disqualified judge Hon. Mike
Wood presiding]. (The Minute Order was not made a part of
the records of the case until October 19, 2015, forty-one (41)
days after action based on that Minute Order was taken.)
As a result of the void Minute Order 2015-065, Richard Stephen
Calkins [now-former] counsel filed a Motion to Recuse and/or Disqualify
Judge Mike Wood, App. 12, supra, based on the 2009 disqualification of
Judge Mike Wood. When that motion was presented to him, Hon. Wood
referred it to Hon. Herman, allowing the following void orders to be
entered:
3. again using Hon. Butts’ void order, Hon. Herman issued a
second void order on September 8, 2015: Minute Order
2015-070 in which he assigned Hon. Gladys Burwell to hear the
Motion to Recuse, only, of Hon. Wood. Even as a void order,
Hon. Burwell was not assigned to hear a Motion for
Disqualification. (The Minute Order was not a part of the
records of the case until October 19, 2015, three days after
action based on that Minute Order was taken.)
-23-
4. in a void assignment based on a void order, using a void order,
and although only assigned by Hon. Herman to hear the Motion
to Recuse, of Hon. Wood, not assigned to hear a Motion for
Disqualification, Hon. Burwell entered her own void order
denying recusal and/or disqualification of Hon. Mike Wood
on October 16, 2015.
As a result of that void order by Hon. Burwell, Calkins, through
current counsel, filed on November 2, 2015, Motion Re-Urging
Constitutional Disqualification of Judge Mike Wood, Based on the Prior,
March 5, 2009, Disqualification of Judge Mike Wood In Case Involving
Mary Olive Calkins, Carolyn James, and Richard Stephen Calkins, In
Which Hon. Olen Underwood Found Carolyn James Joined in the Motion
for Disqualification (hereafter “Motion Re-Urging”). Based on that
motion,
5. On November 20, 2015, with no [new, void] order of
assignment to have done so and with no notice to the parties of
a hearing set to do so, Hon. Burwell “reviewed” and issued yet
another void order denying Richard Stephen Calkins’
November 2, 2015, Motion Re-Urging Constitutional
Disqualification of Judge Mike Wood, Based on the Prior,
March 5, 2009, Disqualification of Judge Mike Wood In Case
Involving Mary Olive Calkins, Carolyn James, and Richard
Stephen Calkins, In Which Hon. Olen Underwood Found
Carolyn James Joined in the Motion for Disqualification.
J. Using the void orders, disqualified judge, Hon. Wood, is
resuming jurisdiction over the parties and the cases.
After Hon. Wood’s 2009 disqualification, as a result of the five (5)
void orders set out above, by setting this case for the appointment of a
-24-
temporary administrator for December 1, 2015,, Hon. Wood is now
attempting to reassume jurisdiction in this case involving the same parties
and attempting to enter dispositive orders by appointing a temporary
administrator, all in an effort to affect this case.
K. One of the fundamental goals of the American legal system
is equal justice to all under the law. 15
There can be no equal justice under the law if a recused judge [Hon.
Butts] is permitted to resume jurisdiction in order to enter a void order
which appears to be done so that other void orders affecting the parties and
the case can be entered.
There can be no equal justice under the law if the void order issued by
Hon. Butts can be used for Hon. Herman to issue other void orders which
could not have been issued but for Hon. Butts’ void order.
Finally, there can be no equal justice under the law if the serial void
orders permit a disqualified judge—Hon. Mike Wood—to resume
jurisdiction of the parties and cases in the continuation of a case from
which he was constitutionally disqualified.
15
Donald Nugent, Judicial Bias, 42 Clev. St. L. Rev. 1, 17, 1994.
-25-
L. Mandamus is the only adequate remedy for Richard
Stephen Calkins when challenging a void order.
Mandamus relief is proper in this case because the orders Mr.
Calkins challenge are void, giving him no other adequate remedy. 16
1. Mandamus is the proper remedy for challenging a
judge’s resumption of jurisdiction after
disqualification and /or recusal.
The serial void orders seem to be designed to re-establish the Hon.
Mike Wood as the judge presiding over these parties and cases, even
though he was disqualified in 2009 from presiding over the case involving
these same parties.
2. Mr. Calkins will suffer immediate and irreparable
harm.
It appears that all the void orders beginning with Hon. Butts’ Sept. 2,
2015, order have but one direction: that of enabling the disqualified Hon.
Mike Wood to resume jurisdiction over the parties and case he was
disqualified from in 2009.
Conclusion
Due process requires that Mr. Calkins be able to conduct his case
before a judge who has not already been constitutionally disqualified or
who has not already been recused, twice, and yet both resume jurisdiction
16
Urbish, supra; McGrew, supra, In re Southwestern Bell, supra
-26-
over the same cases and same parties.
The case of In re Hecht is instructive for the conduct of this
continuation of the 2008 litigation involving the same cases and parties,
over which Hon. Butts and Hon. Wood have previously presided:
[O]ur judicial system is based upon the cornerstones of
integrity, impartiality, fairness, and independence. In
discharging judicial responsibilities, the judge must be
governed by the Rule of Law, conduct a fair and impartial
hearing, and dispense justice as well as equity under the law,
according to the particular facts and circumstances presented in
each individual case. In re Hecht, 213 S.W.3d 547, 565, 2006
Tex. Lexis 1340.
PRAYER
For all of the above reasons, Richard Stephen Calkins respectfully
requests that this Court:
1. Call for a response to this petition and set a briefing schedule;
2. Grant oral argument;
3. Grant mandamus relief and vacate Hon. Butt’s Sept. 2, 2015,
order;
4. Order Hon. Butts follow Tex. Gov’t. Code § 25.00255 in effect on
July 30, 2015, by serving the county clerk serving the statutory probate
courts of Harris County with her order of recusal so that the county clerk
may follow the mandates of the Tex. Gov’t. Code § 25.00255(l) in effect on
July 30, 2015; and
5. Grant all other relief he is entitled to receive.
-27-
Respectfully submitted,
/S/ Susan C. Norman
Susan C. Norman
State Bar No. 15083020
P. O. Box 52518
Houston, Texas 77052
713-882-2066
713-229-8328 facsimile
CERTIFICATION
I certify that I have reviewed this petition and concluded that every
factual statement in the petition is supported by competent evidence
included in the record or in the appendix to the petition.
/S/ Susan C. Norman
Susan C. Norman
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R.
App. 9.4(e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 13-point for footnotes.
The undersigned certifies as follows: This brief complies with the
word-count limitations of TEX. R. APP. 9.4(i) because it contains 6,067
words, excluding all parts exempted by Tex. R. App. P. 9.4(i)(1).
/S/ Susan C. Norman
Susan C. Norman
-28-
Certificate of Service
I hereby certify that on December 1, 2015, a true and correct copy of
this document was served on the following counsel and respondent:
The Honorable Christine Butts Via Hand Delivery
Probate Court No. 4
201 Caroline, 7th Floor
Houston, Texas 77002
Telephone: 713-368-7171
Respondent
G. Wesley Urquhart Via Texas Efile
P. O. Box 20415575
Houston, Texas 77235-5520
713-582-0803
Attorney for Carolyn James
Phillip Calkins Strauss Via email
phillip.strauss@gmail.com .
Courtesy Copy to:
The Honorable Mike Wood Via Hand Delivery
Probate Court No. 2
201 Caroline, Suite 680
Houston, Texas 77002
Telephone: 713-368
/S/ Susan C. Norman
Susan C. Norman
-29-
APPENDIX 4
No.378,993
§ PROBATE COURT
MARYOLIVE K.~! § NUMBER FOUR f- 'i:t _{;;:·
clerk to a judge of one of the other Hanis eo;I.iy,mfu~ .~ate courts pursuant to Tex.. Govt.
Code§ 25.00255(gXlXB). A''i!liul;w
ii~
IT IS FURTHER ORDERED that all costs Incident to this order are ~f!l~Y
,, ,,~;
SIGNED this~ day of March, 2011
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 10/30/2015
Stan Stanart, County Clerk
Harris County, Texas
Appendix 4, Orders Recusal & Disqualification
Page 2 of 4
APPENDIX 4
h.
No.378,993 PAOBATE COURT 114
INRE: § PROBATE COURT
·'"
,,·;
MARY OLIVE CALKINS, § NUMBER FOUR
AN ADULT lNCAPAOTATED PERSON § HARRIS COUNTY, TEXAS
RECVSAL ORDER
day, the Court on its own motion finds that it is in the best interest of the
~use and all related litigation for the Court to recuse himself. It is
,~·-::". t``~:r.
therefoJ.'!'~;; . :!;i,
~:)t 1
"' ,ii,
ORDBRE!i>.1tfult the Honorable William C. McCulloch recuses himself from
6!~;...,
Cause No. 378,993 together wiili't!l·subdockets, if any; and it is further
~;_ ..;
ORDERED that the H , f ;.:·· :C. McCulloch will take no further action
in this cause except to refer this ca('{fl• p~jding statutory probate judge for the
State of Texas.
Pursuant to Section 25 of the Texas the undersigned hereby
requests that the presiding statutory probate judg~ fq~ ~$tate of Texas, the Honorable
Guy Iierman. assign a statutory probate judge to p````l
Signed Augyst .2010.
William C McCuUoch, judge
Harris County Probate Court No. 4
EXHIBIT
I C
-·~------------------------------·----------------------------------------------
Confidential information may bave been redacted from tbe document in compliance witb the Public Information Act.
A Certified Copy
Attest: 10/30/2015
Stan Stanart, County Clerk
Harris County, Texas
Appendix 4, Orders Recusal & Disqualification
Page 3 of 4
APPENDIX 4
--·
I
'j
f'\'*,
,,~
• "\i' • :r~ COURT 12
• •... :.Ji
[J I
-;1g,q~:;
()
``
I
). CAUSBN0.~3
Ci~
!.
JNRE: JNTHBPROiJATB
r:: ) §
§
i:l MARY OUVB CAULKJNS § COURT #20F
.I §
§
HARRIS COUNTY, TBXAS
W"!
I
(;)
r~ rl ORDER ON MOTION TO RECUSE
en
l\J
I\ APTER Hli:ARING
~'~>
c; 'l
I I On March S, 2009 came on to be heard, the Motion to Recuse filed pursuant lo TRCP ISa
I
I .\ in the above captioned cause. 'The Court has considered the Motion, aU attachments thereto, and
J. oil evidence presented, all citations of authority and arguments of~UIII!el.
~I~ :r. Therefore, IT IS ORDERED that the Motion to Recuse be and is hereby GRANTJID.
IT IS FURTHER ORDERED !hat the Clerk of the Court shall forward a certified copy of
:·I~
this Order to:
.I Presiding Judge
Scoond Adminlstnltive Judicial Region ofTCJtas
'f 207 West Phillips, 3111 Floor .
; ~ Conroe, TCltas 71301
Pax No. 409 538-8167
I
I I~ SIGNED this 5111 ofMarcll, 2009.
:I I
EXHIBIT
If)
---------------------------------------------------------------------------
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 10/30/2015
Stan Stanart, County Clerk
Harris County, Texas
Appendix 4, Orders Recusal & Disqualification
Page 4 of 4
Appendix 3
Appendix 3, Order Grant Motion DQ Wood
Page 1 of 1
Appendix 2 1
Motion to Disqualify
Mrir~h S /(Jn9
1 REPORTER'S RECORD
VOLUME 1 OF 2 VOLUMES
2 TRIAL COURT CAUSE NO. 275123 & 378993
3 IN RE: IN HARRIS COUNTY,
4 TEXAS
5 DICK C. CALKINS
6
7
8 MOTION TO DISQUALIFY
9
10
11 On the 5th day of March, 2009, the following
12 proceedings came on to be held in the above-titled and
13 numbered cause before the Honorable OLEN UNDEWOOD, Judge
14 Presiding, held in Houston, Harris County, Texas.
15 Proceedings reported by computerized stenotype
16 machine.
17
18
19
20
21 Edna Thornton
Deputy Court Reporter
22
23
24
25
Appendix 2, Reporter's Record March 5 2009
Page 1 of 13
Appendix 2 2
Motion to Disqualify
Mri rrh C) ?nn q
1 APPEARANCES
2 Michael Easton
P. 0. Box 646
3 Richmond, Texas 77406
Telephone: 281 415 8655
4 Attorney for (Pro Se)
5 Susan Norman
SBOT NO. 15083020
6 Attorney at Law
P. 0. Box 806
7 Richmond, Texas 77406
Telephone: 281 232 7574
8
Sharon Gardner
9 SBOT NO. 02877400
Attorney at Law
10 1401 McKinney, 17th Fl.
Houston, Texas 77010
11 Telephone: 713 658 2323
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Appendix 2, Reporter's Record March 5 2009
Page 2 of 13
Appendix 2 3
Motion to Disqualify
rvr~ rrh s ?nn g
1
2 VOLUME 1
3 Motion to Disqualify
4 March 5, 2009
5 PAGE VOL.
6 Eric Andel Direct Cross V.Dire
By Mr. Easton 4 v1
7
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1
8
Court's Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1
9
Reporter's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1
10 Andel, Eric 4 v1
Movant's 1 Amended Motion 4 vl 4 v1 Record
11
Movant's 2 Motion to Quash 4 vl 4 v1 Record
12
Movant's 3 Order 4 vl 4 v1 Record
13
Movant's 4 Response 4 vl 4 v1 Record
14
Movant's 5 Letter 4 v1 4 v1 Record
15
Movant's 6 Letter 4 v1 4 v1 Record
16
17
18
19
20
21
22
23
24
25
Appendix 2, Reporter's Record March 5 2009
Page 3 of 13
Appendix 2 4
Motion to Disqualify
M.:=Jrrh Ci ?nng
1 THE COURT: 275123, and 378993.
2 MR. EASTON: Movant would offer Movant's 1
3 through 6, without objection from opposing counsel.
4 THE COURT: Admitted.
5 MR. EASTON: I would like to call one
6 witness, ask him one question and let him go.
7 THE COURT: Okay.
8 MR. EASTON: Eric Andel.
9 ERIC ANDEL,
10 having been first duly sworn, testified as follows:
11 DIRECT EXAMINATION
12 Q Justice Andel, handing you what has been marked
13 Exhibit 2. The title of the document is Motion to Quash
14 Subpoena and it's on behalf of Judge Mike Wood, Probate
15 Court Two. At the bottom Judge Wood requests that there
16 be an admonishment.
17 A I see that.
18 Q Signed by his attorney.
19 Is an admonishment a sanction, yes or no?
20 MS. GARDNER: I'm going to object to him
21 asking an opinion. You're the Judge presiding over this
22 case.
23 THE COURT: Sustained.
24 Q (By Mr. Easton) From your personal knowledge
25 then, not as a legal question, is an admonishment a
Appendix 2, Reporter's Record March 5 2009
Page 4 of 13
Appendix 2 5
Eric Andel - March 5, 2009
TJirPrt P.xfiminfltinn hv Mr Ef!.stnn
1 sanction?
2 A In what context? It's contextual.
3 Q If you're a party to a lawsuit or before
4 official proceeding or judicial proceeding, is an
5 admonishment a sanction?
6 MS. GARDNER: Object again. Mr. Easton
7 knows that his lay opinion isn't relevant.
8 THE COURT: Sustained.
9 MR. EASTON: That's all I have.
10 THE COURT: Any questions?
11 MS. GARDNER: No.
12 ARGUMENT
13 THE COURT: Thank you. You are excused.
14 Argument? Anybody else have anything to
15 offer?
16 MS. GARDNER: I do not, your Honor.
17 MS. NORMAN: I join the Motion.
18 THE COURT: Okay.
19 MR. EASTON: Exhibits 1 through 6, very
20 narrow issue here. In January -- sorry -- February,
21 2008, as Easton Exhibit 3 demonstrates, you signed an
22 order disqualifying Judge Wood for filing a Motion for
23 Sanctions in the same case where he was presiding as
24 Judge. Judge Wood, as shown in Easton Exhibit 4, went
25 on in great detail to define what a sanction was and,
Appendix 2, Reporter's Record March 5 2009
Page 5 of 13
Appendix 2 6
Argument by Mr. Easton
MArch S /()()9
1 interestingly enough, quoted the codified section 10.004
2 of the Civil Practices and Remedies Code, a Court may
3 "impose a sanction on the person, a party represented by
4 the person, or both," leading all the way up to
5 contempt. He then goes on in the pleadings in Easton
6 Exhibit 4 to quote this Court's order and he states that
7 Judge Underwood, when you ruled, got it wrong, that the
8 motion for sanctions he filed against the parties was
9 not in Federal Court but actually in the probate court.
10 He's correct on that. Exhibit 3 would be your order
11 granting on the same identical grounds. And in Judge
12 Wood's pleading, which has been identified and admitted
13 into evidence, he once again requests that sanctions be
14 imposed against Ms. Norman and in the same case where
15 he's sitting as the judge.
16 From the viewpoint of what the law is, in
17 the case of Thomas versus Capital, the Court writes the
18 least severe sanction should be the first sanction
19 imposed. Judges are free to admonish or reprimand
20 attorneys. It's part of the sanctions. You can
21 admonish. Bradt versus West backtracks that language.
22 Once a request is made for any type of
23 sanction, "any orders or judgments rendered by a judge
24 who is constitutionally disqualified are void and
25 without effect. In Re Union Pacific Resources." That
Appendix 2, Reporter's Record March 5 2009
Page 6 of 13
Appendix 2 7
Argument by Mr. Easton
Mr~rrh s ?nnq
1 is reported at 969 Southwest 2d 427.
2 Civil Practice and Remedies Code also
3 defines admonishment as a sanction -- Chapter 10.004
4 which allows the Court the lesser sanction of
5 admonishment.
6 The final case, In Re Whatley, which is
7 the case that says as to disqualification, the motion
8 alleges Judge Wood is constitutionally disqualified
9 because he filed a motion to quash identification to
10 what he did hear, requested sanction. It is a
11 memorandum called In Re Whatley. Date is August 8,
12 2006, as reported in West Law 2257399. Identical
13 conduct. Recusal, disqualification. The Court of
14 Appeals said it could never be waived and every order
15 signed thereafter, if constitutionally disqualified,
16 would be void.
17 Without any further delay, I would ask the
18 Court to grant this motion because I didn't file a
19 motion to recuse. It's two different animals according
20 to In ReUnion Pacific Resources, 969 Southwest 2d 427.
21 I'm asking to disqualify based on constitutional grounds
22 for having filed a case against me and Ms. Norman.
23 You've granted that once. Your order, which was Easton
24 3, went to great pains if you recall it, your
25 Honor -- went to great pains to describe his conduct to
Appendix 2, Reporter's Record March 5 2009
Page 7 of 13
Appendix 2 8
Argument by Mr. Easton
M.::~rrh ll ?nnq
1 be neutral, unbiased, everything else, but it said once
2 he asked for the sanctions and placed himself in an
3 adversarial posture, however inadvertent, he was recused
4 from the case. The Court of Appeals says you can't do
5 that. That's a request for sanctions, disqualifies you
6 from sitting on the case. It's not a personal attack.
7 I don't need a witness. The Exhibits speak for itself.
8 I want to thank you for coming to Harris
9 County.
10 THE COURT: Ms. Gardner.
11 MS. GARDNER: She is not taking a position
12 as to whether Judge Woods should be recused. She just
13 wants an expeditious trial. We just need to get to
14 trial. I have a ward who is elderly. We don't know
15 what her health, physical my client is extremely
16 concerned.
17 THE COURT: You join the motion. Motion
18 granted.
19 MR. EASTON: Thank you, sir.
20
21
22
23
24
25
Appendix 2, Reporter's Record March 5 2009
Page 8 of 13
Appendix 2 9
Motion to Disqualify
Mr:J rrh s ;:wn g
1 STATE OF TEXAS
2 COUNTY OF HARRIS
3
4 I, Edna Thornton, Deputy Court Reporter in and for
5 the Project Court No. 2 of Harris, State of Texas, do
6 hereby certify that the above and foregoing contains a
7 true and correct transcription of all portions of
8 evidence and other proceedings requested in writing by
9 counsel for the parties to be included in this volume of
10 the Reporter's Record in the above-styled and numbered
11 cause, all of which occurred in open court or ln
12 chambers and were reported by me.
13 I further certify that this Reporter's Record of the
14 proceedings truly and correctly reflects the exhibits,
15 if any, offered by the respective parties.
16 I further certify that the total cost for the
17 .
preparatlon . Reporter's Record lS
of thls . $ I 07--
L"ta
and
18 was paid/will be paid by
19
20
Edna Thornton, CSR
21 Texas CSR 1306
Deputy Court Reporter
22 Project Court No. 2
Harris County, Texas
23 1201 Franklin
Houston, TX 77002
24 Telephone: 713-248-0745
Expiration: 12/31/2009
25
Appendix 2, Reporter's Record March 5 2009
Page 9 of 13
Appendix 2
1
EXHIBITS
c; ?nnq
Mr~rrh
1 REPORTER'S RECORD
VOLUME 2 OF 2 VOLUMES
2 TRIAL COURT CAUSE NO. 275123 & 378993
3 IN RE: IN THE DISTRICT COURT
4 HARRIS COUNTY, TEXAS
5 DICK C. CALKINS
6 MARY OLIVE CALKINS
7
8
9
10 EXHIBITS
11
12
13 On the 5th day of March, 2009, the following
14 proceedings came on to be held in the above-titled and
15 numbered cause before the Honorable OLEN UNDERWOOD,,
16 Judge Presiding, held in Houston, Harris County, Texas.
17 Proceedings reported by computerized stenotype
18 machine.
19
20
21
22
23 Edna Thornton
Deputy Court Reporter
24
25
Appendix 2, Reporter's Record March 5 2009
Page 10 of 13
Appendix 2
2
EXHIBITS
M~ s ;;nnq
rrh
1 APPEARANCES
2
3 Michael Easton
P. 0. Box 646
4 Richmond, Texas 77406
Telephone: 281 415 8655
5 Attorney for (Pro Se)
6 Susan Norman
SBOT NO. 15083020
7 Attorney at Law
P. 0. Box 806
8 Richmond, Texas 77406
Telephone: 281 232 7574
9
Sharon Gardner
10 SBOT NO. 02877400
Attorney at Law
11 1401 McKinney, 17th Fl.
Houston, Texas 77010
12 Telephone: 713 658 2323
13
14
15
16
17
18
19
20
21
22
23
24
25
Appendix 2, Reporter's Record March 5 2009
Page 11 of 13
Appendix 2
3
EXHIBITS
Mr:Jrrh s ?nnq
1
2 VOLUME 1
3 Motion to Recuse
4 March 5, 2009
5 PAGE VOL.
6 OFFERED ADMITTED
7 Movant's 1 Amended Motion 4 v1 4 v1 Record
8 Movant's 2 Motion to Quash 4 v1 4 v1 Record
9 Movant's 3 Order 4 v1 4 v1 Record
10 Movant's 4 Response 4 v1 4 v1 Record
11 Movant's 5 Letter 4 v1 4 v1 Record
12 Movant's 6 Letter 4 v1 4 v1 Record
13
14
15
16
17
18
19
20
21
22
23
24
25
Appendix 2, Reporter's Record March 5 2009
Page 12 of 13
Appendix 2
4
EXHIBITS
M;:,rch s 2n09
1
2 March 5, 2009
3 PAGE VOL.
4 OFFERED ADMITTED
5 Movant's 1 Amended Motion 4 vl 4 v1 Record
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Appendix 2, Reporter's Record March 5 2009
Page 13 of 13
Appendix 1
PROBATE COURT iJ2
.. '
()(')-
IN RE: IN THE PROBATE COURT
DICK C. CALKINS § NUMBER TWO (2) OF
TESTAMENTARY TRUSTS
§ HARRIS COUNTY, TEXAS
CAUSE NO 378,993
IN RE: § IN THE PROBATE COURT
MARY OLIVE CALKINS § NUMBER TWO (2) OF
Ui
Ul § HARRIS COUNTY, TEXAS
~ FIRST
flj AMENDED MOTION TO DISQUALIFY MIKE WOOD ON
J~ CONSTITUTIONAL GROUNDS
~
j TO THE HONORABLE JUDGE OF SAID COURT:
Q~
`` Comes now, Michael Easton, Intervenor in both cases who moves that Mike
~
Wood disqualify himself in both these cases and in support he would show as
follows via this amended motion to disqualify: ...
. ~( ~
THIS MOTION IS FILED IN LIGHT OF ADDITIONAL Fi,GT~:\ ~
~g"1., m
THAI CAME TO LIGHT ON FEBRUARY 12TH 200`` ~ N ;::
I. THIRD PARTY ENTRY BY WOOD ;~ 1<1:\< ~ r~
. ~ N
1
......
1. On September 24 h 2008, Judge Wood filed what he attempted to'pass off as
a motion to quash a subpoena. See Exhibit "A" annexed hereto and du)y incorporated
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 1 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
.
herein by reference as if set forth verbatim.
2. This alleged motion to quash did more than ask the Court to quash a subpoena,
it actually went on to insult counsel, impugn her integrity, and deliver arguments as
to why the previous motion to recuse filed by Calkins should not be granted. In
addition, this motion filed by Judge Wood also requested that Calkins counsel be
sanctioned, and that a third party, specifically, Michael Easton who had no
connection to the case be sanctioned as well for "filing" the motion to recuse.
Wood also attached a Houston Press "article~' and adopted the piece as his
argument opposing the recusal, and also attached a memorandum from U.S.
District Court, replete with factual inaccuracies that he both provoked when Wood
as the Trial Judge in cause No. 355095 In re Whatley, filed a motion to remand a case
that had been removed to federal Court. 1
J
3. Realizing now what he has done, if given additional time, Wood will now be
heard to say that the instrument that he filed was really a "deed- of- trust", and that
it was not an opposition to the recusal at all. However, the law reaches no such
result, for it is well settled law in Texas that it is not the title or style of the pleading
that controls, it is the substance and content, not the label ( i.e. motion to quash)
The Court read correctly, a trial judge who files motions to remand as the trial judge
m case.
2
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 2 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
affixed by the draftsman that controls. Bryan v. G.E. 553 S.W.2d. 415 (Tex. App.
1977); Mercer v. Band 454 S.W.2d.833 (Tex. App. 1970); Smith v. City a,(Dallas 404
S.W.2d. 839 (Tex. App. 1966). Se.e also Buckholts State Bank v. Thall man 196
S.W.2d. 687 n.w.h. Squyres v. Rasmussen 296 S.W.2d. 977 n.w.h., Smith v. Kraft 9
S.W. 2d. 472 n.w.h. Thus, a motion, no matter what it is called is to be judged and
determined not by its title or caption, but by its actual content and finally, its prayer
for relief. State Bar ofTex. v. Heard, 603 S. W. 2d 829,833 (Tex. 1980);Criton Corp.
v. Highlands Ins. Co., 809 S.W.2d 355, 357 (Tex. App. Houston [14th Dist.J 1991,
writ denied).
II. EASTON'S NON-INVOLVEMENT
4. The reason why Wood filed this purported motion to quash was in fact to
contest the motion to recuse, as there was no need to drag Easton into the controversy
as Easton was not a party to the suit, was not involved in the suit, and had no bearing
on it until Wood and Keys made him a party by seeking the sanction of
admonishment against him. Indeed, as Exhibit "B" annexed hereto and duly
incorporated herein by reference shows, Easton has made the decision not to get
involved in either of these cases. Sensing that this was not good enough, and just
like his previous motion to remand in Whatley, see exhibit "C" annexed hereto and
duly incorporated herein by reference, and his motion for sanctions as the Trial Judge
3
"-------------~-------------------------- --·--
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 3 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
in the Whatley case against Mrs. Whatley, Wood could not resist holding back as a
litigant in these cases, and made the deliberate decision to enter the case, oppose
recusal, and seek sanctions. Thus, no matter how inadvertent Wood and Keys may
now claim their actions were, Judge Olen Underwood recused Wood on these very
same grounds on February 5111 2008, when Wood requested sanctions in a case where
he was sitting as the trial Judge.
5. Although Judge Underwood's Order annexed hereto as exhibit "D" and duly
incorporated herein by reference states that Wood filed this motion for sanctions in
~ federal court, Wood promptly corrected that error when in the l25'h district Court
~
'~ Wood clarified that Judge Underwood had gotten the venue wrong, that the motion
I
`` for sanctions was actuaiJy filed in the same probate case where Wood was sitting as
~
b the Judge. See Exhibit "E" annexed hereto and duly incorporated herein by reference.
~,
0~ Here, the action is the same, and the result is the same; Wood is Constitutionally
disqualified for ( l) entering the case, (2) actively opposing recusal, and (3),
requesting sanctions against Counsel, and a then non-party who intervened on
equitable grounds based on Wood's request for sanctions. 2
2
The sanction of admonishment is the lesser of all sanctions that trial Court can
impose upon being requested to do so.
4
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 4 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
III. JUDICIAL PARTICIPATION
6. In the purported motion to quash, Wood's participation goes one step further,
when Wood raises the affirmative defense of judicial immunity to the motion to
recuse. Although this affirmative defense would have no practical application to a
motion to quash as there is no immunity from testifying when summoned-- as
articulated by the United States Supreme Court in United States v. Mandujano
(Absent a claim of the privilege, the duty to give testimony remains absolute.) 425
U.S. 564, 96 S. Ct. 1768, 48 L Ed. 2d 212 ( 1976), Wood's invocation of judicial
immunity goes beyond the efforts to quash a subpoena, it resists the recusal, and as
the law makes clear, if the Judge participates and resists the recusal itself, then he
stands disqualified as a matter of law. Blanchard v. Krueger 916 S.W.2d. 15. (Tex.
App. [ P1 Dist.] 1995) (Orig. Proceeding). (Active participation by the trial judge in
opposing recusal can lead only to disqualification.) In this case, just like in
Blanchard, it is not whether Judge Wood would have received the sanctions he
requested, it was the fact that he, by written pleading requested sanctions, and thus
3
acquired a personal interest in the case. In addition, only a defendant would, or
3
There is no such thing as judicial immunity from testifying, and in fact the United
States Supreme Court has indicated that a Judge when subpoenaed must testify absent
a legally recognized privilege. See: Dennis v. Sparks l 0 l S. Ct. 183, 449 U.S. 24,
( 1980). i.e. 51h Amendment, Attorney/Client, Spousal, Physician/Patient. There is no
5
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 5 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
even could, raise an affirmative defense to any type of a request for relief, as
judicial immunity is an affirmative defense as a matterof law. Guerrero v. Refugio
County, Texas, 946 S. W.2d. 558, (Tex. App. ( l3 1h Dist] 1997). Thus, not content with·
resisting the recusal only, Wood enters the cases, insults everyone he does not like,
participates in the process, third party's in a non-party, raises affirmative defenses to
the recusal, and then requests sanctions. If simply asking for sanctions in Whatley
,.
was enough to disqualify Wood, then Wood has exceeded all expectations in
Calkins by filing his purported motion to quash. 4 In addition, Wood publicly stating
that he was going to call Judge Underwood in advance of a motion to recuse hearing
undermines the very purpose of why the Texas Legislature changed the law and took
recusals out of th.e hands of probate Judges. It was the evidence of Wood's use of
creature known to law as the "judge cannot testify" privilege except in Mike
Stafford/Fred Keys/ County Attorney folklore.
4
Because Judge Underwood did not specify on what grounds he was or was not
granting the motion to quash as prayed for by Wood, the Court of Appeals will see
the motion in its entirety with the knowledge that it was "granted", notwithstanding
the body of case law that says it should have never been granted on any the grounds
advanced by Wood. See Ludlow v. Deberry 959 S.W. 2d. 265 (Tex. App. [Dist.l4]
1997) ("On August 17, 1995, this panel issued an order sustaining point of error
three holding it was error to refuse to allow the testimony of Judge Chambers.
Accordingly, we abated the appeal and ordered the trial court to hold another
hearing on appellant's motion to recuse during which appellant could question
Judge Chambers.)
6
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Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 6 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
the telephone, among others, presented to the Texas ~egislature that prompted a
change in the law that is being circumvented by Wood using the telephone to once
again do what the law was intended to prevent.
IV. FALSE TESTIMONY INDUCED BY WOOD?
7. Annexed hereto as exhibit "F" and duly incorporated herein by reference is
Deputy Chung Gee's motion to quash asserting a new "privilege" created not at
common law, but at County Attorney "school" called the "bailiff privilege" under
"Rule 605". Thus, while a deputy sheriff who is taught at the academy how to testify
in court when summoned-- should he become a bailiff and witness an event; the
County Attorney now posits that Gee is entitled to the "bailiff privilege."
Notwithstanding the sheer frivolity of Keys and his minions, the testimony of Gee
is most disturbing for when asked on direct examination on September 25 1h 2008, if
Judge Wood had directed him to seize the telephone of Calkins' attorney, Gee
responded "NO" that he had done so ofhis own vo1ition. 5 Thus, the motion to quash
filed by the County Attorney was either false and frivolous; Gee perjured himself of
his own volition; or, Wood directed him to mislead the recusal Judge. In either
scenario, Wood is involved in that either Gee testified falsely, Wood directed it, or
5
He further stripped himself of all derived judicial immunity by his testimony.
7
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Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 7 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
the County Attorney violated the same rules that all litigants must observe in Court
by filing the motion to quash that contradicted Gee's own testimony. Indeed, as
Exhibit "G" annexed hereto and duly incorporated herein by reference shows, Wood
told Internal Affairs (of the Sheriffs Office) one story, while Gee, under oath told
another. However, one thing is very clear, someone is not telling the truth. Thus,
because Wood's testimony is crucial is discovering who committed a crime, his
testimony must be had.
8. Annexed hereto as exhibit "H" and duly incorporated herein by reference is
N
iJj the e-mail sent by Marilyn Lewis, another subordinate of Mike Wood. On September
f~
?cl 25 1h 2008, Lewis on direct examination, and again at the direction of Wood, testified
I
IJj
· falsely that she was contacted by the UPLC ( The Texas Unauthorized Practice of
~
l
~ Law Committee). This too is false, as Easton was serving under the district 4 chair
tn
~ of that same Committee at the time, and became aware of Wood and Lewis'
involvement when Lewis contacted the Committee, and in addition Lewis followed
up with a fax on Mike Wood's stationary. Thus, Wood is not only hiding his own
misconduct, he is directing th~lt his employees swear falsely when summoned to
Court. Accordingly, if the judiciary is to remain and honorable institution, Mike
8
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Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 8 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
Wood should disqualify himself and prevent any further inquiries in this case. 11
V. VOID PROCEEDINGS
9. In both criminal and civil cases, a judge's disqualification arising from a
constitutional o r statutory provision "affects jurisdiction" and renders the
proceeding a nullity. Davis v. State, 956 S.W.2d 555, 558 (Tex. Crim. App. 1997);
Lopez v. State, 57 S.W.3d 625, 627 (Tex. App. Corpus Christi 200 l, pet. ref d); see
Buckholts lndep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 148 (Tex. 1982) ("The
constitutional prohibition has long been held to make any order involving judicial
m
~ discretion by a constitutionally disqualified judge absolutely void,' a nullity."').
``
~ Further, even if the parties consent, there can be no waiver of constitutional or
b
~ statutory disqualification provisions. Ex parte Vivier, 699 S.W.2d 862, 863-64
I
Oj (Tex. Crim. App. 1985); Lee v. State, 555 S.W.2d 121, 124 (Tex. Crim. App. 1977);
U1
0' 1
see Buckholts, 632 S.W.2d at 148) ( [D}isregard of the constitutional
disqualification is error that can be raised at any point in the proceeding 11) . No judge
shall sit in any case wherein the judge may be interested, or where either of the
6
It is obvious to the public-at-large- that Wood and his entire staff take the "Leona
Helmsley" approach to the law which is: "'Only the little people are compelled to
obey it-not us." See United States v. Helmsley, 941 F.2d 71 (2nd Cir. 1991) (''Only
the little people pay taxes ...)"
9
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Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 9 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
parties may be connected with the judge, either by affinity or consanguinity, within
such ·a degree as may be prescribed by law, or when the judge shall have been counsel
in the case. Tex. Cons!. Art. V. II. In addition on information and belief and as
will proved up at hearing Judge Wood concedes that he had no jurisdiction in this
case based on the failure of Crain, Caton & James to serve the proposed ward before
dividing up the Estate.
VI. CONCLUSION
10. On September 24 1h 2008, and despite not having any reason to do so, Judge
If.
t.Jj Wood entered these cases by (I) invoking an affirmative defense to the motion to
``
~ recuse, (2) bringing a third party into the case, (3) maligning and disparaging counsel
I
~ and making false statements in his pleadings, (4) seeking sanctions, and (5)
f
Oj · participating in the recusal. Thus, no matter how deliberate or inadvertent these
``·
~· actions w~re, he took an ad versa rial posture and position in a case where his personal
·lawyer, and his Jaw firm, Crain, Caton and James were involved. Accordingly he
stands disqualified as a matter of law.
WHEREFORE, PREMISES CONSIDERED, Movant prays that Mike Wood
enter an order disqualifying himself from any further involvement in these cases.
10
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Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 10 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
Respectfully Submitted,
/s/M ichael Easton
P.O. Box 646,
Richmond, Texas 77406
281-415~8655
EastPrQLaw@msn.com
CERTIFICATE OF SERVICE
On this the 12th Day of February 2009, I certify that I served all parties
including Mike Wood with a true and correct copy of this motion.
Is/ Michael Easton
I1
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 11 of 84
Stan Stanart, County Clerk
Harris County, Texas
I
Appendix 1
!
VERIFICATION
STATE OF TEXAS
COUNTY OF FORT BEND
Before me, personally appeared Michael Easton, who after being placed under
oath did afflrm·that he bas read the amended motion to disqualify Mike Wood and
that all the statements contained therein are true and correct to the best of his
infonnation, knowledge and belief. ~ ~
~N
Sworn. and subscribed to me on this the 121h day ofFebn1ary 2009.
RHONDA M ClARIC
·``,``levu{._
MV Cornmlsllon Expires NOTARY PUBLIC
Augusf 30, 2009
12
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 12 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
$EP-24·Z008 09:35AM FROM-Harris County Atty's Offica + T-056 P.OOl/019 F-25D
FACSIMILE TRANSMISSION
TO: Sharon Oamder Fax# (713) 658-1921
·susan Nonnan Fax# (281) 605-1822
S~zanne P. Kornblit Fax# (713) 524-2423
FROM: Fred Keys Fax# (713) 755-8924
·DATE: September 24t 2008
RE: Cause No. 378,993; Mary Olive Calldns; In Probate Court No. 2, Harris
County, Texas
Cause No. 275,123; Dick C. Calkins, Testamentary Trusts; In Probate
Court No. 2, Hams County, Texas
PAGES: 18 + Transmittal Sheet
NOTICE
'This facsimil!! contains CONFLDINTIAL INFORMATION which may also be LEGALLY
PRMLEGED and which Is Intended only for the use of the Addressee(s) named above. If you
are not the intended recipient of lhis facsimile, or the employee or agent responsible for the
dcliver!11g or copying of this facsimile is sttictly prohibited. lf you have received this facsimile in
error, please immediately notify us by telephone and return the original facsimile to us nt the
address listed below via the Postal Service.
Exhibit A
Page 1 of 19
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 13 of 84
Stan Stanart, County Clerk
Harris County, Texas
r----------------- - - -1- - - - - - - - - - - - - - - - · - ·
Appendix
SEP-24-2008 09:35AM FROM-Harris County Atty's Offica + T·056 P.002/0i9 F-250
No. 378 993
INRE: § IN PROBATE COURT No.2
§
MARY OLIVE CALJQNS § HARRis CoUNTY, TEXAs
-----------------~------------
No. 275123
INRE: § IN PROBATE COURT No.2
DrCI\: C. CALKJNS §
TESTAMENTARY 'l'llllSTS § HARRIS COUNTY, TEXAS
MOTION TO QUASI·J WITNESS SUBPOENA
To the Honorable Olen Underwood, Presiding Judge Second Administrative ·
Judicial Region;
The Honorable Mike Wood, Judge in Harris County Probate Court No.2, moves to quash
the witness subpoena issued by Susan C. Norman on behalf of Richard S. Calkins. The
subpoena purports to command Judge Wood to appear to testify in his O'Yn recusal hearing set on
September 25, 2008, at 1201 Franklin, Project Court No.2, Harris County, Texas. 1
Ms. Norman has a reputation of abuse of both the Texas recusal statute and the federal
removal process for purposes of delay and cost building. 2 Her faithful cohort, Michael Bitgood
Exhibit A, Copy of the Witness Subpoena.
Exhibit B, Judge Gray Miller's Memorandum and Order dated June 2, 2006, page 3, "A notice of
removal may nor be fl.led again in the proceedings of In re Ihe Guardianship of th(! Person and
£state of Perry Lee Whatley (Cause Number 355095), or any related mane!', without !.he prior
written approval of the undersigned Judge." f.n. 2, "Norman and Easton have abused the removal
procedures several other times in an effort to frustrate the guardianship proceedings. See e.g.
Southwest Boston. Senior Servs.,l11c. v. Perry Lee Whatley, No 05·11881-PBS (D. Mnss. 2005); in
Re Perry Lee 'Whatley, H-05-cv-2663 (S.D. Tex. 2005); Perry Lee Whatley v. Susan C. Nonnan,
H·OS-cv-3622 (S.D. Tex. 200S).
Exhibit A
Page 2 of 19
Page 1 of4
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 14 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
~EP-24·2008 09:35AM FROM-Harris County At~y's Office + T-056 P.OOS/OlB F-250
Easton, is also notorious for abuse of the judicial systern. 3 But, to his credit, Mr. Easton has
SUn'ived many investigations by the Texas State Bar for the unauthorized practice of law and
proudly announces business-as-usual.
This court is somewhat aware of the sad history of the Wharley case, involving the same
cast of characters (different clients, similar case). 4 In Whatley Ms. Norman and her clients were
involved in multiple motions to recuse Judge Wood; removals to federal courts before Judge
Lynn Hughes, Judge Patti Saris (Ma.ssachuseus), Judge Kenneth Hoyt (twice), Judge Vanessa
Gilmore, and Judge Gray Miller; multiple mandamuses, appeals, and dismissals. The direct
appeal of Whatley is pending in the Fourteenth Court of Appeals, Cause No. 14-06-00970-CV.
Simultnneously, the Whatley probate matter is being re-litigated as a meretricious civil rights
5
claim in Sun Life v. Walker, In the 1251h Judicial District, Harris County, Texas, Judge Paul
Murphy sitting by designation. Judge Wood's Motion for Final Summary Judgment based upon
judicial immunity is pending in that court; and has been since August I 0, 2007.
Now the antics resume. As much as Ms. Norman would love to make him so, Judge
Wood is not a party in this case. He is the judge. 6 Like in Whatley, Judge Wood has done
nothing outside his judicial capacity in Calkins. He has no lcnowledge of this case except in his
capacity as judge. He is absolutely immune from suit. Pierson v. Ray, 386 U.S. 547, 554, 87
S. Ct. 1213, 1218, 18 L. Ed. 2d 288 (1967); Srump v. Sparkman, 435 U.S. 349, 362-64, 98 S.Ct
Exhibit C, Houston Press, June 26, 2003, "Bar Card -1'he antics of ilil ex-con raise questions about his
parnlc~al role.''
Exhibit D, Order Recusing Judge Wood.
Judge Hughes appropriately noted in tbe Whatley's flm attempt at removfll, "Because Whatley improperly
removed this ca.se -- meretriciously claiming defensive c:ivil-rigllts violations in an application for
appoirlttnent oftemponuy guardianship- it is remanded to the Harris County, Texas, Probate Court Two,"
"Judge Olsen is not a party to tbiB oppeal. He is the trial judge." In re /Jauer, 2001 WL S49027, 1
(Tex..App.-Hou. [lll Oist.) 2001, review denied) (Not designated for publication.)
Exhibit A
Page 3 of 19
Page 2 of4
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 15 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
S\P-Z4-ZOOB 09:36AM FROM~Harris County Atty's Offi~8 + T-056 P.004/019 F·250
1099, 1107-09,55 L.Ed.2d 331 (1978); Mireles v. Waco, 502 U.S. 9,11-12, 112 S.Ct. 286,288
(1991); Bradt v. West, 892 S.W.2d 56,67-68 (Te.x.App.-Houston [I Dist.),l994, writ denied).
fn order to compel Judge Wood to testify regarding his mental processes in arriving at a
judicial decision, Mr. Calkins must show extraor.dinary circumstances that would justify
compel!ing the judge to testify. Tate v. State. 834 S.W.2d 566, 569-70 (Tex.App.-Houston [1st
Dist.) 1992, pet. ret'd); Thomas v. Walker, 860 S.W.2d 579, 581 (Tcx.App.-Waco 1993, no writ)
("Regarding Judge Walker's ruling quashing the subpoenas duces tecum secured by Relator to
obtain Judge Black's testimony and that of his wife at the recusal hearing, no abuse of discretion
on Judge Walker's part has been shown.'"') Any inquiry into Judge Wood's mental processes in
arriving at his decisions would be improper and would threaten the foundation of an honorable
and independent judiciary. See Tate v. State, 834 S.W.2d 566, 569 (Tex.App.~Houston [Ist
Dist.) 1992l writ rerd). When no substitute for a judicial witness is available, the demands of
justice may require the testimony of a judge as a character witness. Joachim v. Chambers, 815
S.W.2d 234,238-39 (Tex.l99l). These are not the circumstances ofthis case.
PRAYER
Judge Mike Wood respectfully asks the court to quash the witness subpoena issued by
Ms. Susan Norman on behalf of Richard Calkins. For the record- Judge Wood is NOT asking
for sanctions against Ms. Norman, her client, or Mr. Easton. To be redundantly clear, this
motion to quash is not an nttempt by Judge Wood to gain any interest, pecuniary or otherwise, in
the Calldns cases. However, Judge Wood and his counsel would be remiss, as members of the
Texas State Bar to ignore the numerous abuses described above and fail to encourage the court to
use its inherent powers to admonish Ms. Noonan nnd Mr. Easton that this court will not tolerate
abusive methods of operation.
Exhibit A
Page 4 of 19
Page 3 of4
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: I 0/30/2015 Page 16 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1 l
SEP-24-2008 09:36AM FROM-Harrii Cou"ty Atty'• Otfica T-056 P.OOS/019 F-250
Respectfully submitted,
OF COUNSEL:
MIKE A. STAFFORD
-Fd~
Assistant County Attorney
Harris County Attorney Texas State Bar No. 113 73900
1019 Congress, 15th Floor
Housto1i, Texas 77002
(713) 755-3609 (telephone)
(713) 755-8924 (facsimile)
ATTORNEYS FOR JUDGE MIKE WOOD
CERTIFICATE OF SERV)CE
I hereby certify that on: September 24, 2008, a true and correct copy of Judge Wood's
Motion to Quash was served by fax and by certified mail, return receipt requested, to all parties
of record.
Exhibit A
Page 5 of 19
Page4 of4
Confidential information may h~ve been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 17 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
~EP-24·2008 09:36AM FROM-Harris County Atty's Office + T-056 P.006/019 F-250
Exhibit A
Exhibit A
Page6of19
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 18 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
SEP·24·2008 09:36AM FROM-Harris County Atty'& Ottice + T-056 P.OOT/019 F-250
THE STATE OF T.EXAS
W 1TNESS ~UBPO.ENA I SLIBPOENA DUCES 'TECUM
PURSUANT TO TEXAS RULES OF CIVIL PltOCJ~:.OURE RULE 176
CAUSE NO 371:1,!193
lNR.E: § IN 'f.HE PROBATE COURT
MARY OLIVE CALKINS § NUMBER TWO (l) OF
§ H.ARRJS COUN'IY, TEXAS
CAUSR NO, 175,!23
IN RE: § IN T'H.E P.R.OBATE COURT
DICK C. CAl.KJ.NS § NUM.lflnf. TWO {2) OF
TESTAMEN'rARY 'tRUSTS § HARR.lS COUNTYj TEXAS
To: Any !'heriffor constable of me St:nte of Texas or otherp~.:~t:>un Hu!horiv:x! to ~erve and
eKecute subpo~rnt..'l a..~ provided in Tcx.as Rule ofCivil Procedure l76.S.
You are com:rnl!t1ded to summon Michael Jl!.ma Wood, Judge nfPrnbatc Court NIUQber
2 nf Rarris County. IexBs, 201 Fr:mklin. Probate Court No. l, Harris Co11nty~ T~as\ to
appeu at J.ZOl Fnoldin, Project Conrt Nn. 2, Harris County, Texas, oo September 25, 2008,
at 10:00 11..1n., before Honorable Olen Underwood, and give tt:.Stimony in tWs case on behalf of the
Mnvom.and to remilin in attendll!lce from day-to-day untillawf\llly discharged.
Co11tempt. Failure by any person without adequate e.n:u~e tu obey a subpoena served
upon that person may be deemed 11 contempt of the court from. which th.: llnbpoeua ill ill Rued
or a district court In the ~nunty in which the subpoena is scf'\lcd, and mtl)' be punished by tine
or confinement, or both. Tex. R. Civ.t•.l76.8(a).
DO NOT Ji'ATL to return this writ to tb.e Probate Cou1:t No.2 of Harris County, Texas, with
either the attached officer's return ~:~bowing Lhe manner of cxe~;ution or the witness's signed
memornndum showing that the witness accepted the subp<.Jt.~IW .
ISSU.ED on September 9, 2008.
Ry: .s:, ~ c. ,.ftJ ~ t/;:;
SUSAN C• .NORMAN
TeXrlR aar .Number 15083020
· P.O. Bnx 806
H.icbmund, TCX.a$ 77406-0806
Phone: 281~802-534!
Fax: 281·605-1822
This subpoena wa."' issued i!.t Lht: rt:qUi.I'Sl of MovlUlt, Rlchnrd Stephen Calkins, whose
attorney of record is Susan C. Norman, P.O. Box 806, Richmond, Texas 1740l'i-0806, Phone: 281·
R02-S34l.
Exhibit A
Page 7 of 19
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 19 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
S£P-24-ZOOS og:37AM FROM-Harris County Atty's Office· + T-056 P.OOB/019 F-250
Exhibit B
Exhibit A
Page 8 of 19
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 20 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
S£P~24·2008 09:37AM FROM-Harris County Atty's Office + T-056 P.OOS/019 F-250
,, ••••••. • · • ,,...,._ ..,...,., _ _ , _ _ _ _ t U~ ..... I VI V
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISlON
§
lNRE PERRY LEE WHATLEY, § CiVIL ACTION H-05-3860
Guardianship Matter. §
§
MEMORANDUM AND ORDER
Before procet:ding with a case, a federal coun has a duty to examine the basis for its subject
matter jurisdiction, on its own motion if necessary. See Torrtq v, Southern Peru Copper Corp., 113
F.3d 540, 542 (5th Cir. 1997). After considering the notice of removal, the numerous pleadings in
this case, and the applicable case law, the court is convinced that it does not have jurisdiction to
entertain this probate and guardianship dispute. Remand to the proper Proba.te Court is therefore
appropriate,
Removal in this case was improper. Susan C. Norman (purportedly representing Perry Lee
Whatley) and Michael Easton removed thls case' from Probate Coun Two of Harris County, Texas
by invoking the removal provisions of28 U.S.C. § 1443(1) and§ 1443(2). This stamte states:
Any of the following civil actions or criminal prosecutions, commenced in a State
court may be removed by the defendant to the district court of the United States for
the district and division embracing the place wherein it is pending:
(1) Against any person who is denied or cannot enforce in the
courts of such State a right under any law providing for the
equal civil rights of citizens of the United States, or of all
persons withing the jurisdiction thereof;
(2) For any act under color of authority derived from any law
providing for equal rights, or for refusing to do any act on the
ground that it would be inconsistent with such law.
In re the Guardianship of the Pewm and Estate of Perry Lee Whalley, Cause Nnmber 355095.
Exhibit A
Page 9 of 19
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 21 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
SEP·Z4-2008 G9:3TAM FROM-Harris County Atty's Otfice + T-D56 P Dl0/019 H50
~ . . . . . . . . . . . ,..,. w• w...,._,"'"' t-r\wi'VYttn.,;aH itt rm:u VO/Ut.ILVVO r-age 'L OT J
28 U.S.C. § 1443. Courts have construed the phrase ''under any law providing for equal civil rights"
as meaning civil rights with respect to racial equality rather than the denial or abridgment ofbroad-
based constitutional rights that apply to all citizens equally. See, e.g., Smith v. Winter, 717 F.2d 191,
194 (5th Cir, 1983). Of particular note, the Fifth Circuit has stated that "broad first amendment or
fourteenth amendment claims do not satisfy the test, nor do claims arising under non-racially
oriented statutes such as 42 U.S.C. § 1983." !d. Tbe provisions of28 U.S.C. § 1443(1) and§
1443(2) do not support removal based on the allegations proffered by Susan Norman and Michael
Easton. In their various filings. Nonnan and Easton explicitly and implicitly allege n host of
claims-such as conspiracy, denial of due process rights, kidnaping, fraud> perjury-for which they
seek damages under 42 U.S. C.§ 1983. None of these, however, touches upon racial equality.
Moreover, the terms of the statute provide for removal by a defendant. The underlying state
matter was an application for the appointment of a guardian of a person and estate. The parties to
the guardianship contest were Perry Lee Whatley, Dawn Johnson Whatley, Jeanie Anderson, Robert
Daniel Whatley, and My! us J. "Jimmy'' Walker, Jr. Neither Susan Norman nor Michael Easton were
defendants in the guardianship or even parties. They therefore had no basis to remove lhe
guardianship contest.
Despite their own lack of standing to remove this ease, Norman and Easton challenge the
standing of the parties urging remand. The court will therefore assume arguendo that there is not
a properly presented motion for remand before it. Although a court may not raise the issue of
remand on its own motion, it must nevertheless consider the existence of subject matter jurisdiction.
See 28 U.S.C. § 1447(c); Ziegler v. Champion Mortgage Co., 913 F.2d 228, 230 (5th CiT. 1990).
Federal jurisdiction is nonnally detennined by examining the face of the state court complaint or
2
Exhibit A
Page 10 of 19
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 22 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
StP-24-2008 09:37AM FROM-Harris County Atty's Otfice + T-056 POll/019 F-250
.... - · - .................. ..,..,.,.,_"' lwfV\ollr,.JillVJ 1\ I I t
I"'II~U UO/UL/LUUt> r->age ::S Of 3
petition that was removed. As noted by the United States District Court of Massachusetts in
Sourhwe.sl Boston Senior Services, Inc. v. Perry Lee Whatley, No. 05-11881 ~PBS (D. Mass. 2005),
the application for appointment of a guardian of a person and estate filed in the Texas Probate Court
presents neither a federal question nor diverse citizenship of parties. As that court explained:
Here, the Application for Appointment of Guardian of Person and Estate filed in the
Texas Probate Court presents no federal question. In addition, there is no diversity
of jurisdiction because all parties to the Texas Proceeding- Robert Daniel Whatley,
Jeanie Anderson, and Petry Lee Whatley- were domiciled in Texas at the time the
Texas Proceeding began.
Dkt. 10, Ex. E.
This dispute is squarely a probate matter. Probate matters are firmly committed to the
province of state courts. Because this court is without subject matter jurisdiction, this matter is
REMANDED to Probate Coun Two of Hartis County, Texas pursuant to 28 U.S.C. § 1447(c), for
lack of subject matter jurisdiction. A notice of removal may not be filed again in the proceedings
of In re 1he Guardianship ofthe Person and Estate ofPerry Lee Whatley (Cause Number 355095),
or any related maner, withoullhe prior written approval of the undersigned judge. 2 It is further
directed that the order for mediation (Dkt. 105) is VACATED. All pending motions in this case are
DENIED as moot
Signed on June 2, 2006, at Houston, Texas.
NonnAn and Easton have abused the removal procedures several other times in an effort to frustrate the
IJUBrdianship proceedings, Set:, e.g., Southwest Boston SeniorServs.,lnc. v. Perry Lee Whatley, No. 05-11881-
PBS (D. Mass. 200.5); /11 Re Perry Lee Whatley, H-05-cv-2663 {S.D. Tex.. 2005); Pen-y Lee Whatley v. Susan
C. Norman, H-05-cv-3622 (S.D. Tex. 2005}.
3
Exhibit A
Page 11 of 19
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 23 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
SfP-24-2008 09:38AM FROM-Harris County Atty'• Office + T-056 P.012/019 F-250
Exhibit C
Exhibit A
Page 12 of 19
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 24 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
FROM-Harris County Atty's Office + T·056 P.0!3/019 F·250
J~P-(4-2008 09:39AM
.. ,I« •••.•
·:'If i · .·. j'·i .-::: ..
,_.f... I '' . l : ~ .'· ' : ~· • ' I
t:A!.fllDA/t tiUSIC AA lrtDLit.'
r:ruunliiU.Ol1Jt l.c~h fd>~nill prin1 ~t1.i-:lc llvt]lll,l~ur•t.ll11!1rwl ~ost Popular
Bar Card v.......d i:``J~<.JII:ll ""'
[0'ii;i:~.T,_;,cu7;~ ·-···--
The antics of an ex•con raise questions about his " lli;ht nlt~ndant went n!toi th" Ost<-ens in coun,
pal'lllegal role !lrin&iGr, on t!'l:;lo •nd tribulation ror one nnd •!I
n;r <:t>t.t:•nuillhn~l ·'> iliuJg~Jt.l:ll.lnJlacllf:(
71'1t nnincotpornted town ixup to its eJ!lo"' in youth
rubllah•d on J~no 26, ~c.o~ Ull!>$. pov~fiY und crim~ • loc.tl ftn~d, musf< tru1
When he WliS in fedcrnl prison, Michael £nston studied the
··~ ll~r-'loi.ul~rttm~l
Ht>U..Io~ Etll bk with ~k one
-i· LdlJ.l;wt1:eJ!Mrt1•~r id Cbj)d ''11''s•cti~c
I
1 ncM bt•stt
• f'rt&: Stuff
5Ub><:rlbo I
Jaw ond the Scriptures. Now Easton, who is nho :m ordained s..-rnr.~,
Por the fim )'IO>r, Jl,Qby ll
attorney for whom he wori~S, PQtijr ,,u Cl•mh~i H.~OW.trl~f
~'lltS..pe:Jo9i12AM
name tlle winner a:nd rcwta detnils of ever'}' World Series. His ~ I0~4iO:Uh~.Pulh.ul~o ••U.~..Tho}>'.lnll
Hyundai !!antra sports the bumper sticlcer "Real Men Lo"e Mon Sap ...... StOS I'M
. -1> JWin~J!LEI!l!m.l!lilila:lv 1ll8!!]1t!Ull
Jesus." Moil Sep ~c, 311&7 PM '
-) J\lltl:t.t.l.k!!!IWat.:11.i11ll.'·la.,'ir.»:``
l'Je smokes clga~t \(;!6 as he ~lbhes victori~5 ovet his \eglll Mon!iep:>"', t:o91'M
adve.n;aries with quotes from the Bible 1mdJungl1 8ook.
-> H&:.l!llnn.Qijt.:JluliiU:lllC'I.!n..lln:WI.lltl'~tl'll'"
Mon Sl:p :>a, 6;o;s }'M
wh.icb he Wlltehes time und ~sn.in with his fl....,.~ar-old lion. ~ lll:l"!:!Llol:cmntl.~lltll:N.1\'inUilU!tl>tb<-&m
b~.lim::tlC~nt:Jkv
"How d~licious," he says With a grin, lllkin{l a drag on bit~ ~'l'l Scp llh lt>::t:> A.' ~Q.;),:,~rull.livJ:~ttli.MQWWtd
sports minutille. One thil"4J he is not is an attorney. Alld Tua Sep ~s. 8:46AM
therein lies the problem fat this very active patnlcgnl.
Recent Articles by Zo~ C;Jrmlcha@>l
Some attorneys say Bust on steps out oftllc bounds of tho
-> JIAd!;tcd
duties a p.mller;ul <:~tomarily pqrfol'tllS, st:tin; ru; a lawyer Tit& eatic:r of All CX-CC>ll r.llsa qYCIIiolll Abo \It Ail
pnolo11ol lOIO
himself. They uccuee him of hiding behind his pun1eg3l
status, pulliog srunts that would )Selll.ll authentic Mtorney "!> T~;ll.Ql.hudl.
N•wdrilhqu~d try•u!J follow r-.c:k>l•ll"llationt Ill
disci:pllued. T...;uaty
http://www .houstonpress.com/2003-06-26/news/bar-cardJ 9/23/2008
· Hance with the Public Information Act.
Confidential information may have been redacted from the document m comp
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 25 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1 I
S£P-Z4-ZOOB 09:38AM FROM-Harris County Atty's Office + T-056 P.014/019 F-Z50
I!
Easton di,misses the complainIa, ~:lyiDx.'he :lltOrncys whu
criticile hire simply resent his ability with the l11w, ~nd that
-> ~hun~
1 Seven Afri.. n-1\mttbn ;i' b triod uul lor then•··
City Slin(OrotiU urilltenm thi.t ya>r, None oflhc"'
Ij 1
!
he does nothing unelhlcal. l__::````~------·-··-~---..····-··-.....J •' llndex
SERVICES l
While th~: arguments continue, tho TeXll~ Supreme COUrt'H £m;.olu)'IO<"nt
I
Mu,.;lo Spa•m Study
Un~ uthorized Practice of Law Committee i~ delving once V i~w .l.d I VIe·" 5i t~
ll£ain into tQmplninu 11bout Ellston •· for the 14th time in 14 \ ' \Ullio:l! V,> i<:~' Contra! M•rkot
~U.Stt.~t:i.llit;J;<~:IWlu~l\5 View Ad I Yi•:w ~1lO:
)'llllrs. He says he's been cleared of IIJ1)' wrongdoins in ll'u: first
13 inquiries, nnd rem~ills confident th3t it will happtm ~l:3ln.
Ycur cu\oo to 1.1ndcl'l[l1lllins; 1\)0's proof~ rtf ~ru ,
I(W.,~ H.;ntl\)·
Drtvers Who 'w al\t •
futur• ! i
Vlcw ad 1'llf!YI 'inJ! j
!'11;ami New "J1m,~
l'hd~l5t.1'~miiJ~riuo.aUllun.OlsMt.l\\\;lnoor. r.tm.'ro!
I!Jiston KnOW>i the l:~w as well as mtmy attorneys, and ~orne
les~l :1Ssi11nments be has been in,·olvtd in hflve lumed ill to
A ptiiCn 'lilY fnd bookrUfll(y r.C\d
p~hicbn dftW•l·
urc'" r..."'V.·RabcN
M.-dle School • C•••tlvo
VI~ .. ,,d
...,u
I Vt("ff Sit•
I
precedcnt-senin~ ca~ law. E.a$ion, who ``ys ht i~ 11 Puerto l
Ric:Bn who legully changl·d his nama, is often cr~ss nnd unltind abom th~ buckground of others. 1
I
He'~ called one black ;sdvcrsary "homeboy" and a 'while opponent "trailer tru~h." In a cuurt ple:~ding, he
recently ref~rn:d to uhcrift's deputy liS "Bam<1y Fife." But evl!n his httr.lh1!5t critics cnll him brilliant. They
ql~o say he b unethia~lnnd rllde, ;,nd tho! he ovl!r$teps the boundaries between paralejlal and attorney.
Some or hL• earlier erpeliel\ca with the I``ow Cillnc at tilnc• l ! 3 crimin~l defendant. l
ln 1990, he wns convicted und sentenced to three yean for felony theft of 01 diomQod rint: from Gordon's
Jcwaler.; in Westwood Mall in 1986.
~j
Why you !11C>vld 1•• \O ~
He p!ended guUly in 199910 mal.:int falsi! 'tatetncnu to :~xovemment al\eney and trying to dceoive a b~nk to
i
lulaw Ill(!; · rd let Y'l'l
~·ko credit lot th~
obtain~ loon. Easton had sued In an unsuccessfcl ~ffon to block the state from rc••oldng his private
ln\'C:Stl~;``tor's liet:nse in l99l- I violin 11 lt.k•v on my
!
ln 199Q, Ea>lon reeelwd two :Z7•month prison terms after J>l.,•dinc guilty to bd!1kruptcy l'rilud Rnd froud L ne..cl<."
Maf~ Pc:noNtS ~>':-
involvinll student louna. He also had his &t.lte probation n."Voked. Three ye.:us c11rlier, a judge had found he NOW CLICK THIS
I
acted in bad railh in pursuing :m Involuntary b~nkruptey action against o la.ndlo!'d, and Easton Wl\5 hit with `` of tlouctan L~vndt
p,my
about $92,000 In sanctlous. Ad lr1d1'JC.
1/lr\ual Job Folr
Olsltol Jukobo•
Six years ago, U.S. District Judg~ Oa\'id Hittner forbade Ernily foU&JIIlC> 'It ~: ~ ~ ~ ·r~:Mm
1.. I but hi:~ client izi. liim bocl<. th•y Ollllldn'l funltbe rillbt Wlln!< 1,~, .. Ja``.:.
·!' DDQp ll.l.CJ.! Ei~tNUll.A.CDnliiADtilicl.Quo:. cr.,y. ,.,h, tUot f!i 10' t)
I i JohD.!Carl Buehc,11 law p``nner or ·£.~· !
lni/IICI.ti" C&UJ
tti\Ulot (1,7'96\
1 LaCroix's, said no one fights ---····``·!."~-::... '19,~--~----l JOb•t•.OtOj
>4•11 •nl.fnorlnm"' tl.~l71
: Easton, becaus.c btwyers nnd even
i judges 3re ufrllld of him.
1 "H., hs~ sued sc"'eral judJJes nnd a
l hllndful of attorney&," Buehc uid.
· '1 have 23 published lawsui~ in
i \ which he Wi!S a plniotiff, Rvecyone
\ £uro~ ,,'11 b•'; <~>• ono b~ln~
: is scn:red to do Mything nbour
L•.·!~.w~r rn``~.•o.. . ..
: ll[m, because they know he will sue
them. He cause.: so mucb misery. He keeps people tied up In
rourt for years."
But Easton said he h:~s chllnged, nnd hasn't filed a lawsuit in
ten ycW'1i. Mls client Ia tbe on<: doing the ~ulnc, he Sill d. Ill oil!<
·~ 1Unitey1g Of :the; l'Q1:tprfru;
B11clle and l..aCrollc look their oornplaini.S to the UJ:Uuthorized ~'UII Sap~' Qrlll AM
legal pr11~ce committee, aecusing Easton of repn:senting "~' U.fi.Aln:t:.tllltA.i~oUul\Qn..ll!s.lhc,lJ'lnd
Mon sq, u, ,:;:os I'M
clients in court, ndvisine cllen\s and otherwis;; handling th~
duties of lnlnttomey ralfu!r th.lr.a paralegal Buche s~id his
·> .I!Jwou:llRW!lll.Uuli.llclr.ll>..R~lwilll
Mon Slip lt2. Sllrli'M
firm hAu been "Inundated with the rnost vindictive, •P``~R~
Mol'l Scp 2:, t1tl8 I'M
emberrnsslng iUld anprofes~lonal correspondence and •\• DlllP.UUl'.!l.u.t.:Chi!Jt:..I'JJil"lin.llt:~;,tlDlUI!IiJ::iw
pleadings." He added, "I expact to bc&ued for addressing thl~ M"n SCII :n, ''03 PM
i.qsue and 1 routinely receive throats to be suc:d And ·? IIJ:\'C.oJtUttml Upnnl'a..\~luf,Uitl~l:l:tu'.Jll>r.d
il):.ll\ln:k£ulL~.Il.w
sanctioned for everything under the sun.." flrl S..p ;y, Ulll:t .ut
•) J:lll':l..JIJ:l:.Wr..'>)!c;k.'l~:JIH d..Cho.Ut:nllllll.
:rdv~I\~U.uu ZtmTt•n "'n"'II~:I..M'lUill:Iltli
Tu~ Scp :13, 11:46 Alii
the lqwye1·.
~I must CQ'Ife.ss that I am deeply uoubled by what I hwe Rel! ..nt Articles by ~CHI Carmlch&lll
witnessed and by the (act that Mr. Ea$ton Is permitted vis·il· -• liat..CIU'J.I
vi!! Peter Riga, with seemins impunity, to hll.tliSs and ploguc The utica e( an I'JC-clll!. rallie q'IICJtioos about his
pttl'll~&~l role
the Hou. ~llllll
Exhibit A
Page 15 of 19
http:/lwww.houstonpress.com/2003-06-26/newslbar-card/2
9/23/2008
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 27 of 84
Stan Stanart, County Clerk
Harris County, Texas
...-----------~-------· -- - · - ...
Appendix 1
StP-24-2008 09:39AM FROM-Harris County Atty's Ollica + T-OSS P.O IS/0\9 F-250
In n document submitted to the t'Ommittec'~ chllirnlnn, Rig~
denied the a~\lsations Olguinst him and Ellston. JU~" 3ald that
I s"'co Alrian·AIIIcricoA ~itlltrid out for tho
CiiV SUn~•rc\11:• drilltulllthi< )'CJir. Nob! olth•m
nt>dc the •quod.
·r...,, I
everything in the plcudings tllat le11ve his office is filed _;.;th ~l==============:::!
his consent Riga wrote th11t Easton does refer to himself~ 1\'nlir•ll; AU;'.!H'Ofl\1 o[ l!oo:n. Orl•on Wllo Want A
"Mr. Buclie <1nd LaCroix obvi~u•ly st:uted u fire they c..n't p\lt uyw~m H•rh\,. Fu•urr
out, and now they grieve me; Riga ''Tote to the committee. '1i~"' M I \1\Jw Site
~11 \dl•i N.:" ·nm,:"
"In f~eL, Mr. Easton bu h:~.d hour~> upon hour!i oF ~musem~:nt Tho 1.1l•l'f oiii!11Yliiii\.CI(Jmt>n .Gi>.•emt.•hu"''
-CC,t/1 '01
A ``'3~1 ~:;,..~d bi1nkr.,l) lcy c:; 1\' t kc.~r chhl BO•JI!:Ir-old Mtdl • . ~
Vl ew Aa I v; • ..., Site
humor to play along with them." .~Ytvlr.e'
Adoption AdYocltei, In<,
Vttw Aoutd !~t to
know m~: 'l frequently
rderrex
profwor said. "Whether or not anyone wnol..\1 to eall him art It is .ttnother m:~tter." Vlmtol ~o~ f~ lr
or,rt~ Jl.j)(obl>x
Schuwerk said \hM l!.oston b probably unable to become an attorney because o! hls uiminal record, and i!hc
had been :l.ll :~ttorncy, he likely would have been di5barnd for en&asing in earlier felonious activity. He snld
th•n what pn111lega\s do iiJ'IU what lawyers do i6 marl o..oc.~ K~l;:.ri!'AIIn 0\l.!'llDAll tiUS!C 1'10\IEC xn.r:; IA:HUI (\JU.,.Ifl• U t•JlOI1UHOtS:: :.tAACH "l!>kib(X
2 !lcl(e!s for SID lhru Sr.v.lflmDcr R3rd
Most Popul~.­
Bar Card v!.iwoa
Continued from page 2 ~--·-- " ' - - · · - - ""t
I
Houston PreSs
Inside-rs
I
l
lACroix was !ntreduious that the committee's invoatigatot
1j
• Loco! food, musl; lnd
nttW!lo bl.1s,t;$
• frH Stuff
I
'
would play down Easton's condu<.-t; the attorney llllid there io SUbj :ruM<~. ~blctn.l:v.hSoll·~d.U.lll.l'l.ltl.
TU1: S~p "'l!, Ua:!I'M
.,) ti!#,.S:pA.wnf.O.~t~:
"He is making an ;~bliolutc mocllery of the civil judicial Tile Sep 23 1 1;0t PM
lC)'Stern,' LaCroix llllid. '1'1lis isn't 11 situation whete u couple -) ~tn .rvttr StUJ Plvrr~
Tu10Scp :13,1;16 l"M
of lnwyers get th(!ir feelings hurt. We are litigator.;. I'M this is ~ J.clll:fPm.'l..Oul)'~\l.l:l.ulllll.!~dl
over the top," .l:i!ID.Il»~dlli``ll.roAI:tt~:o.u.ap 23, "35 I'M
·:) '.(IIC.J.m:``oc:t~.llf..H\IJ:I'ii:ooc..Ik~.nll,llii:Ol:Jlc:.
Easton said he has been open ~bollt not bcin~ a lawyer and lrulll.\tl:)'
Tuo S«i> ll3, '-til PM
that his detractors ~m~ the bypocrltllli.
~> .l:l.l:lvill&~ltliiU'iJnJII:.I'nn~
M!ln Sep sh:, 6:oal'M
'1My thiD,ts they wish lhey could ~ay." Easton 5lld. "I thll.\k I
hold "P a mirror to lawyers, They see lhr.:m``Clves in me, IUld
"'
•I\
they don't like what they see." 'tvc Sep 1131 UlJ>O AM
·> l'!!!J T!t:v!r'Xo 'Wf:.cl!. ·rlm:l'; Um! Cb>llMII:ell.
nnd Pl!tt:bay !lunnlts
•l'r<.vi.,u< l'nnc J. ~ 11 .___'!dd\yJillltD'i
l__
'l>e..,s...;ep:.....,..:.:.'.:.'n-~_AM
_ _ _ _ _ _ _ _..J
Exhibit A
Page 17 ol19
http://www.boustonpress.comJ2003~06-26/news/bar-cardl3 9/23/2008
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 29 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
S~P-24-ZOOS 09:41AM FROM-Harris County Atty's Off1ce + T-056 P.OIS/019 F-250
Exhibit D
Exhibit A
Page 18 of 19
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 30 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
``P-24-2008 09:41AM FROM-Harris County Atty's Office + T·056 P.019/019 F-250
NO. 355,095
§
IN RE: THE PERSON AND § lN I?ROBATE COURT No. 2
§
ESTATE OF PEAAY LEE W.HATu;Y, § OF
§
A PROPOSED WARD § RAmus COUNTY, TEXAS
§
OlU>.ER oN MonoN TO RECUSE AFTER Hl:..Aru:NG
On January 24, 2008, carne on to be heard, 1he Motion to Recuse filed plll'SUant to 18a of
the Texas Rules of Civil Procedure in the above captioned CllliSe. The Court has considered lhe
motion, its attachments, the eourt's file, all evid~:nce preseoted. and all citations ofauthorlty.
The record indicates that, throughout the long and tonvo luted history o.f this case, the Honorable
Michael Wood's bahavi.or performance as a judge has been thoughtful, un.biased, and impartiaL
He has been a well-informed. weD-prepared neutral jl-lrist who has done nothing on the bench
that would wsrrant recusal.
The moving pru:ties have gone so far as to sue Judge Wood in federal court and attempted
to subpoena him to testify in 1hat a.ction. The Harris County Attorney responded oa behalf of
Judge Wood and filed a motion to quash the subpoena which included n request for sanctions.
Once this request ``u IJ:Uide, Jud&e Wood was placed in an adversarlal posture. however
inadvertent, towards the movan1s and effectively re~ed him from sittiDg ou :further proceedings
W. this case.
Therefore, IT 1S ORDERED that the Motion to Recuse be and is bc:reby GR.ANtE.O.
IT IS FURnmR ORDERED that the Clerk of the Court shall forward a certified copy of
this Order tc:
.:.'•,;!, . ..••••
~
Presiding Judge
.· }:.-:~....-~· ~ ....
. .._ . Sccor1d Administrative Judicial Region of Texas
"
i ?: ~ ·. 301 N. MAin, Suite 228
~ ~
,, ;.:
'....
'y"'r•
,..,- -:. Conroe, Texas 77301
Fax No. 409 538-8167
.\:``~:;-.:~--~::::~ '
SIGNED this eit?r~
Exhibit A
Page 19 of 19
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 31 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
Law Offices of Peter J. Riga, Ph.D., J.S.D., J.D., LL. M., St.D., Th.D., Ph.L.
[Emeritus 2003] Attorneys & Counselors at Law '
P.O. Box 52518
Houston, Texas 77052-2518
EastProlaw@msn.com
(281) 415-8655 (Direct Ring)
Michael Easton
·August 27: 2008 :~
!
~
't
'91
Susan C. Norman in
c:;;g~ G')
r'fl
::0
..,=::
•
..
Attorney at Law n:r: ~ N ;:.:o
g~ ) -~.. -.J r"l;o
P.O. Box 806 ~n ``· ~ CJ(f!
;<~ (•,.;·. ~
Richmond, Texas 77406 . . . ~ ..-t, C1'
----~-~----!._•
In Re: The matter of Calkins In Probate ourt N~ 2 tof Hf:ffris
County, Texas; Cause No. 275,1 , Cause No. 378,993 l
Dear Ms. Norman:
I want to thank you for offering to associate me as your legal assistant
in the Calkins matter in Probate Court 2 of Harris County, Texas. I must, for
the following specific reasons, decline your offer at this time.
1. This is Mike Wood's Court. Judge Wood hates me with a passion and
his hatred has spilled over to members of his staff. As an example I
attach this e-mail allegedly sent by people who are supposed to act and
represent the Supreme Court of Texas with honor and integrity. In this
e-mail it is clear that Judge Wood, his staff, Ray Black, and of course
"Jimmy" Walker, are all conspiring to have me "barred" from the
Courthouse(s} for what appears to be no more than a degree of
competence on my part. I am still deliberating on whether to reopen my
lawsuit against the Unauthorized Practice of Law Committee ("UPLC")
based on this email.
2. In 2006, Judge Wood -who by his own admission did not serve me
with a show cause order as required by law- issued a bogus writ of
attachment to have me arrested and brought before him on the spurious
charge that I sent him an ex-parte email e-mail to his private e-mail
address. The writ contained something unknown to law, in that it
Exhibit B
Page 1 of 5
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 32 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
Susan C. Norman
Page 2
August 27, 2008
carried a "no-bond" prov1s1on. Under the Texas Code of Criminal
Procedure a "no-bond" provision is reserved only for those who are
charged with "Capital" murder in which the death penalty is sought.
What is worse is that years after the fact, Fred Keys, the Judge's
lawyer, finally appears with the "show-cause" and as it turns out, the
returns show that I was never served with the "show-cause" at all.
Wood and Ann Greene directed the Harris County constable's office to
my home, to my neighbors, and to my place of employment. These
constables did not hesitate, while acting at Wood's direction, to tell my
neighbors that Peter and I were "wanted" on serious criminal charges,
which caused the neighbors to question whether to allow their children
to play with my children any further. As it later developed, I never sent
Judge Wood anything at all via e-mail, and the e-mail was the work of
Ray Black, one of his preferred ad !items. What is sadder to me is how
two members of the Court of Appeals assumed the worst, wrote the
worst, and allowed Wood to get away with this without a shred of
evidence beyond Wood's fabricating the evidence, the accusations, and
the results, all by himself.
3. If it were not for Justice Paul C. Murphy {Senior Chief Justice, Retired,
141h Court of Appeals) and the Honorable Olen Underwood, a man
whom I treasure, what would have happened to me? I would have
spent time ln jail (unlimited), been humiliated in front of my family, and
suffered untold collateral consequences for nothing more than a well-
placed lie, engineered by the regulars in Probate Court 2.
4. If Mike Wood - and his staff, at his direction -can't break you down
with the above, he simply cheats by tampering with the Clerk's file, and
in turn the Appellate Record in an attempt to avoid appellate review of
his atrocities by removing documents from the record so that if the case
is appealed, the offending matters would never be in the record.
ExhibitS
Page 2 of 5
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 33 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
Susan C. Norman
Page 3
August 27, 2008
We worked hard in Whatley, got the Legislature to change the law, and
succeeded at getting the Senators and House Members to take a long hard
look at Judge Wood; some even went public with their outrage. The·law now
works- to a degree- and it will work as long as honest judges refuse to act,
or refuse to direct their staffs to act as Mike Wood does at Probate Court No.
2. As a "reward" for all of our efforts, I had to face the UPLC for the 1Jlh time;
you have had the State Bar all over you based on Whatley; while Wood- and
Black and Walker since they are the friends of Mike Wood - have escaped
any type of criminal or disciplinary actions. Peter lost the friendship of a dear
friend, a sitting federal judge. Judge Wood's ability to succeed in calling the
Court of Appeals and other Judges is morally disheartening to me. The
judiciary as a whole, operates solely on the public trust. When it comes to
Mike Wood, however, it seems to me that it cannot be trusted.
There are no rules, no laws, and no ethics or morals that are observed
in Probate Court 2; just a run-away "train" that takes from the elderly and then
passes it around to Judge Wood's friends and supporters.
There might come a time when some brave public official such as Ken
Madigson, or Don DeGabrielle might say enough is enough, and finally hold
Wood, Walker, Black, and the regulars in Probate Court No. 2 to account. At
that time, in a court of law- just as did Pat Gregory, Wood's predecessor-
they might understand that there is only so much the public can stand, or will
take before the "axe" drops on them, as they have so often dropped it on
lawyers they don't like, people who object, or simple support staff such as
myself, for doing their job. Probate Court 2 Deputy Sheriff Gee's behavior last
week directed at Rhonda Clark and you is a continuing example as to why I
will not step foot in that Court, as Mike Wood has shown that he will- and can
direct his staff in Probate Court No.· 2 to- say and do anything to anyone to
make Mike Wood's agenda stick. Lying is n9 obstacle at all, given what Gee
told his superiors at the Sheriff's office.
Exhiblt B
Page 3 ol5
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 34 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
Susan C. Norman
Page 4
August27, 2008
If the Calkins matter is ever assigned to another Court such a.s Judge
McCullough, a man who fears God, I will be happy to assist you and go to
Court with you again. However, as long as the case is in Mike Wood's court
· you must accept the fact that you will be abused, humiliated, grieved, and
held up to ridicule. I cannot be put through that again by Wood and his staff.
I might also add that you should keep an eye on your purse, satchels, and
other things while in Probate Court No. 2, for it is not beyond them to plant
contraband on you or your parcels, and then have you charged with a crime.
They did it to me, and they will do it to you. Thus, take a witness, take a
media reporter, contact the media with all your evidence organized, and make
0~ sure that someone is with you at all times when you are in there.
Qj
~ I wish you the best, and I will pray that the Lord give you the grace and
~ strength to get through this one ,as well.
I
~
~
~j \
Ui \'
~
/me
Exhibit 8
Page 4 of 5
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 35 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
SBC Yahoo! Mail- ~b@tjbl``klaw.com Page I of I
~SMALL BUSIN~!~ Print - Close Window
Subject: FW: Mlct>'ael f.-sron ana the unautt>or1~ed prvctJce Qf law
cata: Wed, 7 oec 2005 l6:5B:07 -0600
F.-om: ~-;,, llaillyn (Prvbetli CQUJ'tS)"'-<~.harrn,D<.ui>
rlb@rlblacklaw.co~ ~-------~--- ....
''-
'··
FYI Md ooold``"
'"'"' thiS :Jimmy Walk" woll?
==""'i""'i='===~=--------------··-------
)
Marilyn
-----original MessaQe-
From: Gunnels, Meg (Probate Courts)
Sent: Wednesday, December 07 1 2005 ":56 PM
To: Lewis, Marilyn (Probate COUrts); Wood, Judge Mike (Probate court)
Subject: FW: Michael Easton and the unautt'lorized practloo or law
-----Original Message---
From! Martha P.Jillng ?C [mallto:mfaillng@mind:;pring.comJ
Sent: Wedl'lesday, Oecember 07, 2005 11:10 AM
To: Gunnels, Meg (Probate Courts)
Subject: Michael Easton and the unouthorlzed prl1998 WL 79055 (Tex.App.-
Hous. (1st Dist.)) (not designated for publication); Easton v. The Honorable Dwight
E. Jefferson, 1996 WL 89332(Tex.App. - Hous. (1st Dist.)) (not designated for
publication); Michael Easton v. The Honorable Eugene Chambers, 1994 WL
286353 (Tex.App. - Hous. (14th Dist.)) (not designated for publication); Michael
Easton v. The Honorable Eugene Chambers, 1994 WL 220304 (Tex.App. - Hous.
( l st Dist.)) (not designated for publication); Michael Easton v. The Honorable
Exhibit C
Page 3 of 6
3
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 39 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
Case 4:05-cv-03860 Document 71-1 Filed 03/10/2006 Page 4 of 12
Eugene Chambers, 1994 WL 117759 (Tex.App. - Hous. ( 141h Dist.)) (not
designated for publication); Michael Easton v. The Honorable Katherine Tyra,
1994 WL 8628 (Tex.App. - Hous. (1st Dist.)) (not designated for publication);
Michael Easton v. Justice of the Peace Gary C. Franks, 870 S.W.2d 568 (Tex.App.
51
- Hou. - I Dist. 1993 )); Michael Easton v. The Honorable Hollis Gorman, 1993
WL 293011 (Tex.App. - Hous. (1st Dist.)) (not designated f~r publication);
Michael Easton v. The Honorable Oliver Kitzman, 1993 WL 46588 (Tex.App. -
Hous. (1st Dist.)) (not designated for publication). Mr. Easton is not a lawyer, but
has more hits on Westlaw than many lawyers. His "pro se" appearance and
removal should be strictly scrutinized.
Prayer
Judge Wood asks the court to remand In Re: The Guardianship of the
Person and Estate of Perry Lee Whatley, an Incapacitated Person, Cause No.
355,095, in Probate Court No. 2, Harris County, Texas, to dismiss the claims
against him with prejudice, and order the plaintiffs to get leave of this court before
filing further removal or § 1983 actions in this probate matter.
Exhibit C
Page 4 of 6
4
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 40 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
Case 4:05-cv-03860 Document 71-1 Filed 03/10/2006 Page 5 of 12
Respectfully submitted,
OF COUNSEL:
MIKE STAFFORD
~ FRED A. KEYS, JR.
Assistant County Attorney
Harris County Attorney State Bar No. 11373900
1019 Congress, 15th Floor
Houston) Texas 77002
Telephone: 713-755-3609
Facsimile: 713-755-8924
Exhibit C
Page 5 of 6
5
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 41 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
Case 4:05-cv-03860 Document 71-1 Filed 03/10/2006 Page 6 of 12
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served on
March 10, 2006, by certified mail return receipt requested to Scott Rothenberg,
Attorney at Law, 6800 W Loop South, Ste 425, Bellaire, TX 77401-4505, Susan C
Norman, Attorney at Law, 9135 Katy Freeway, Ste 100, Houston, TX 77024, Peter
J Riga, Attorney at Law, 8700 Commerce Park Dr, Ste 116, Houston, TX 77036-
7423, Craig A Washington, Attorney at Law, 2323 Caroline, Ste 1000, Houston,
TX 77004, Jesse Blanco, Jr., Attorney at Law, PO Box 680875, San Antonio, TX
78268, Michael Easton; 8700 Commerce Park Drive, Ste 116, Houston, TX 77036-
7423, Mylus J Walker, Jr., Dinkins Kelly et al , 815 Walker, Ste 240, Houston, TX
77002 and Michele Quattlebaum, Preston & Cowan LLP, 909 Fannin St, Ste 1400,
Houston, TX 770 I0-1006.
~·
FRED A. KEYS, JR.
Assistant Harris County Attorney
Exhibit C
Page 6 of6
6
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 42 of 84
Stan Stanart, County Clerk
Harris County, Texas
-- ..... ··-·------------
Appendix 1
02105108 16:07 FA..l ~ 0021002
NO. 355,0~5
§ · 20GB FEB -5 Pl1 4: 39
IN RE ~ THE PERSON M'D § IN PROBATE COURT No.2
§
ESTATE OF PERlU' LEE WHATLEY, § OF .- '.:· ........
§ . • J l',
...··1·
1'
:. '
A PROPOSED WARD § HARRIS COUNTY, TEXAS .
§
ORDER ON MOTION TO RECUSE AFTER IIEARING
On January 24, 2008, came on to be heard, the Motion to Recuse filed pursuoot to 18a of
the Texas Ruk.s of Civil Procedure in the above captioned cause. The Court has considered the
motion, its attachmenrs, the court's file, all evidence presented, and all citations ofauthority.
The record indicates that, throughout the long and convoluted history of this case, the Honorable
Michael Wood's behavior performance as a judge has been thoughtful, unbiased, a.nd impartial.
He has been a well-infonued, well-prepared neutral jurisc who has done nothing on l11e bench
that would warrant recusal.
The moving parties have gone so far as to sue Judge Wood in federal court and attempted
to subpoena him to testify in that action. The Harris County Attorney responded on behalf of
Judge Wood arid filed a m~tion to· q_uash the subpoena which included arequest for sanctions.
Once this request was made, Judge Wood wns placed in an adversarial posture, however
inadvertent, towards the movants and effectively recused him from sitting on further proceedings
in this case.
Therefore, IT IS ORDERED that the Motion to Recuse be a.n819 S.W.2d 612, 615·18 (Te~.App.-Dallas 1991, no writ) (requiring nonmovant
to !Tl£ct •a.mc: cvidentinry principle. as movan1 when submittinz response to sununary judgment).
Judge Wood'•lksponse to lntervenon' Motion to Vacate ... Page2o( 14
-----------..···--··--------·..·------------·-··-·-----------·--·--·----·-·--·-
Exhibit E
Page 2 of 29
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 45 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
use reasonable diHgence In the pertormance or the judge's duty undor this section, the
iudge shall bo liable on the judge's bond to those damaged by th<\ judge's neglect.
(e) The coun may roquast an applicant or coun-appolntea floociary to produce other
Information identifying an applicant, ward. or guardian, including social security numbers,
In addition to lden~fylng information the appficant or fiduciary is required to produce under
this code. The court shall maintain the information required under this subseclion, and
the inlormation may not be fllod with the clerk.
9. The intervenors offer no facts applicable to Judge Wood's violation of any
subsection of§ 671, above. However, if they could, lhc ministerial duties imposed by § 671
have no general effect on a judge's absolute immunity. Twilligear v. Carrell. 148 S.W.Jd 502,
505 (Tex.App.-llouston [14'~ Dist.J2004, pet. denied) ("In this case, because the actions required
of probate judges under section 671 are directly related to conducting the guardianship
pro-ceedings pending in their courts, lhcy an: both judicial aci.S and within the jurisdiction of lhe
probate judges by whom they arc required; !llld arc, thus, protected by judicial immunity.")
"Judges have no liability for failing to perform their duties under section 671 beyond whatever
liability can be found, if any, on their bonds, as upres&ly provided In thai section." !d.
(Emphasis added.) The intervenors are pn:mature. For example, how can they possibly know
whether "the guardian's bond Is nnt sumcient w protect the ward or the ward's estate"?
See (c), above. There hns been no nnal accounting and part of the estatt:'s funds Is tied up
In litigation in this court.
10. Further, to state a claim against a probate judge's bond. lhc intervenors musl
allege and prove lhat the disputed funds were not &pent for ~c expenses of the estate or the
welfare of the ward. Genter v. Fillip, 134 S.W.2d 730, 733 (Tex.Civ.App. -Austin 1939, writ
dism'd, judgment correct) (County judge was not liable on official bond for olleged negligence
resulting in lo~ of ward's estate. where notwithstanding appointment of guardion was void, all of
ward's funds bad been spent for ward's usc and benefit.)
Judse Wood' I RcsponK to lnter-<0~,.,.----··•"•-•-~n-~- . --.. . -
Exhibit E
Page 3 of 29
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 46 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
Constitutional Disqualification or Recusul?
II. At the outset, the intervenors' best-ca~e scenario does not void Judge Wood's
judicial imrnunity. The intervenors must show lllut he acted with "~omplete absence of all
1
jurisdictlon," not that his orders were subsequently declared void. This they cannot do.
12. The intervenors do not support willl authority their blanket legal conclusion that
Judge Underwood's ORDER ON MOTION TO RECUSF. ArrnR HEARING is a constitutional
disqualification. The facts and much authority support the position that it is nor.
13. The saga began on August S, 2005, wben Daniel Shea, Ms. Whatley's former
attorney, issued a witness subpoena to Judge Wood. to " ... appear before Hon. Russell Austin
sitting by assignment in the County Probate Court at Law No. 2 ... on the 9th day of August
2005 at I :30 pm, to testify as a wimess on behalf of the Party in the above styled Probate Action
concerning a Motion to Recuse . . . .''l Su Sommers v. Concepcion, 20 S.W.3d 27, 42
(Tex.App.--Houston I 14th Dist.J 2000, pet. denied) ("Allowing recusal in every situation where a
party decides to sue the judge, or threatens to call the jndge as a witness, would result in
unwarranted recusal and provide an easy means of recusing a judge.") (Bold emphasis added.)
14. On August 9, 2005 Senior As5ist1Ull County Auomey Frank Sanders filed a
Motion to QuliSh the above witness subpocna.4 The prayer consisted of one :u:ntence:
''WHEREFORE PREM1SES CONSIDERED, movant prays \hat the subpoena directed to him in
the above cause be quashed and an approprim1 sanction entered pursuant to Chapter 10 of
the Texas Civil PracUce and Remedies .Code:" (Emphasis added.) This issue is important
enough to restate Chapter I 0 here, with comment:
Mir1/~J "· Waco, $02 U.S, 9, 11-12, 112 S.CI. 286, 288 (1991).
Exhibit A, Witness Subpoena to Judge Wood.
Uithibit D, Motion to Quash.
Judge Wood's Reopon..,1o lnterveno"'' Motion to Vac01e ... Page 4 of 14
------~---·---·-----·-----·- ---·-------·--~--·---·-- ..
Exhibit E
Page 4 of 29
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 47 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
§ 10.001. Signing o! Pleadinl)s and Mo1ions
The signing of a pleading or motion as required by the Texas Rules of Civil Procedure consdtu!es a
cer1ifieate by tho signatory that lo the signatory's besl knowledge, information, and bclicl, formed after
reasonable inquiry: •
(1) the pleading or moUon is not being presented lor anv improper purpose, including to harass or
lo cause unnecessary delay or needless increase in the cost of litigation;
(2) each claim, defense. or Olher l~al contention In the ploading or motlon is warranted by
existing law or by a nonfrivotous argument for the extenslon, modification, or reversal of axls!ing
taw or lhe establishment of new law;
(3) each allegation or other factual contention ln the pleading or motion has evidentiary support
or, for a specltlea~y ldan!illlld allegation or factual contention, Is likely to have evidentiary support
after a reasonabl& opportunity lor lvrthar investigation or discovery; and
(4) ench denial In the pleading or motion of a factual cootention is warranted on tha evidence 01',
lor a spedlleaHy ldentlned denial, Is reasonably based on a lael< olln!ormaUon or belle!.
10.002. Motion for sanctions
(a) A party may make a motlo~ lor sanctions, describing the speciffc conduct violating Soctfon
10.001.
(b) The ccurt on ~s own lnHiativa may enter an order describing the specific conduct !holnppOars
to violate Section 10.001 and direct the alleged violator to show cause why lhe conduct has not
violated that section.
(c) The court may award to a party prevailing on a motion under this section the reasonable
&xpensas and attomey's lees incurred in presenting or opposing the motion, and i! no due
tiNigence is shown the court mey award to the prewUing patty aH costs for !noonvonlence,
harassment, and ou!·OI·pocket expenses: incurred or caused by the subject litigation,
Comment: Under subsection (a), the prayer to the Motion to Quash· merely asked for
"an appropriaJe sanction" without describing any specific, violative conduct. Section
(b) is not applicable because no sanction was imposed. Likewise, (c) does not apply
because no sanctions were imposed.
fi 10.003. Notice and Opportunity to Respond
The court shall provide a patty who Is the subject ot a motion !01' sanctions under Section 10.002
notice pi the aUegations and a reasonable opportunity to respond to the allegations.
Comment: There nothing in the record to indicate that Judge Austin noticed Mr. Shea,
or anyone else of a hearing on a sanctions allegation. Judge Austin granted the motion to
quash on August 9, 2005, !he same day that it was liled, without mention of sanctions.
Senior Assistant County Attorney Fl1ll1k Sanders submitted an Order to Judge Austin that
Judze Wood'• Re~ponwe to lntel'\'tnoll' Motion to Vacate ... P•ge S of 14
Exhibit E
Page 5 of 29
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 48 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
he had "approved as to form." Judge Austin signed the submitted Order, granting the
motion to quash without sanctions.~ .
§ 10.004. VIolation; sancllon
(a) A court that·determines that a person has signed a pleading or motion In violation of Sec1ion
10.001 may impose a safldlon or~ the person. a pat1y represented by the person, or both.
lbl Tha sanction must be limited to what is suffiCient to deter repeU!ion of the conduct or
comparable COndiJCI by others simUarly si.tuated. •
{c) A sanction may Include any olthe following:
(1) a directive to the violator to perform, or re!Taln trom pertorming, an ac!i
(2) an order to pay a penalty into courtj and
(3) an ortlor to pay to the olher party the amount or \he reasonable expenses Incurred by
the other party because of the f~lng ol the pleading or mo1ion, includlnQ reasonable
anomey's fe-es.
(d) The court may not award monetary sanctions against a represented par1y !or a violation of
Section 10.001(2),
(e) The court may not award monetary Sllllctions on its own Initiative unless the court issues Hs
order to show cause before a voluntary dismissal or s011Jemen1 of !he claims made by or against
the party or the pally'& a!lomey who is \o be sandloned. ·
(f} Tho liing ol 11 general denial under Rule 92, Texas Ruleo ol CivK Procedure, shall not be
deemed a viotalio~ of this chapte-r.
Comment: Judge Austin had sanction options under section (c) (I) & (2), which he
, could have approprla.ttly impo~ without granting Judge Wood any pecuniary or
property intere.~t in the case. In fact, Judgr Austin impos;ed no sanction at all. I!
§ 10.005. Order ,,i I
A c~urt shall describe in an order Imposing a sanction under this chapter the COllduct the court
,q
~ ;
has determined violated Sect!on 10.001 Blld explain the basis lor the sanction Imposed.
Comme:nt: Judge Austin's Order Glllllting the Motion to Quash does not mention
sanctions. No sanction order issued.
§ 10.006. COnHict
Notwl!hs!anding Sec!lon 22.004, Government Code, the supr8me court may not amend or adopl
rules in conHict wllh this'chapler.
Exhiblt C, Judge Austin:s Oxdo:r Granling 'udgc Wood's Motion lo Quash.
Judge Wood's Ruponse to lntervenort' Motion to Vacate ... J>a;e6of 14
Exhibit E
Page 6 of 29
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 49 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
15. "The Texas Constitution disqualifies a trial judge fyom sitting 'in any case
wherein he may be interested.' TEX. CONST. art. V, § II. Similarly, Texas Rule of Civil
Procedure l8b(l )(b) requires a judge to disqualify himself from any case in which he may have
"an interest in the subject matter in controversy." However, the interest of a judge, in order that
he may be di$qualified, must, in general, be a t!ircct pecuniary or property interest in the subject
matter oflitigation."6
16. On September 9, 2005, Susan Nonnan and Daniel Shea filed the now infamous
MOTION TO DlSQUAUFYIRECVSE. THP.. Ho~ORABLE MIK£ Wooo. 7 The Motion is less than
candid, listing as "Irrefutable Fact' in pamgraph 3: "At the concllision of the molion, Judge
. -
Wood, the named 'movant' requested that .sanctions be imposed. Thus, Judge Wood, by praying
for ajftrmatil!e relief in the form of sanctions, did mor~ than request that his subpflena be
quashed. He acquired a pecuniary interest in the case and cast himself as an adversary to the
Whatlejls." Full disclosure would have been that Judge Wood's attorney pmyed for," ... an
appropriate sanction entered pursuant to Chapter 10 of tbe Te!t!'S Civil Practice and
Remedies Code." . Any sanction that awarded Judge Wood a pecuniary or property interest in
the case would have.been inappropri~Jte and thus was not prayed for.
17. On June 1, 2006, the Fourteenth Court of Appeals remanded the case, s fmding
.that Judge Burwell had not ruled upon the September 9, 2005 MOTION TO DISQUAI.ll'YIRECUSI!
THE HONORABLE MIKE WOOD. After remand, on June 6, 2006, Judge. Burwell denied the
infamous September 91b Motion.9. In re Whatley, 2006 WL 2257399, 1 (Tex.App.-Houston [ 14
GulfMaritime Wllre~OIUe Co. v. Towers, 858 S.W.2d 556,558 (Ttx.App.·Beaumont,l993, wril dt:nied.)
Exhibit D, MOTION TO DISQUAUFYIRECUSE THE HONORABLE Mli<:E WOOD. lnfarnous, because this i& 1he
one motion·IO·recusc referred to ludge BllrWI:.IIlh41 was not iuled upon, remailled pending. and caused the
St:p'lt'ln'oa l~", 01:\o'm U'\ m6 ~11:>11! H~ -lW5,'tn6tl!' 1mlt6 'tly rodrt 'Wt>Pht> b!: llec\~n:ll voi(l
by the Coun of Appeals onlunc I, 2006.
/11 re Whatley, 2006 WL 2948230,4 (Tex.App.·Houslon [14 Disl.],2006, no pet.).
Exhibil !l, Judge Bwwcll's Order.
Judse Wood's Response to lnt~enors' Mo!ion to Vacale •.. Page 7 of 14
Exhibit E
Page 7 of 29
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 50 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
Dist.], 2006, no pet.) (SUPPLEMENTAL Mf.MORANDUM OPINION ON REIIF.A.RJNG, August 8,
2006) ("Since our opinion issued, the pending recusal motion was denied by Judge Gladys
Bwwcll.") The intervenors now argue on direct appeal that Judge Burwell erred because she had
no assignment and did not hold a hearing on the motion. Judge Burwell's decision to deny the t
motion is currently pending before the Fourteenth Court of Appeals. Judge Burwell's ruling is
l
I
on direct appeal from Judge Wood's final judgment in the guardianship. 10 Her ruling would be l
the law of the case if upheld on appeal.
Cou.rt ot Appeal a ol! Tex~oe, Houston (Uth Dht. .1.
Pen:y LBB and oavn J'oh..noon What ley, ,Joined by Kicba.~l Ea.•ton, Appella.at 11 ,
l'tylua oJIIV\1!:8
Y.
'IIIALXER, JeAnie A.rl.daraoa, Robert Daniel tthatley. and. Mich•el J~a
Wood, Appel tee a.
No. 14•06·00970-CV.
I
I
i
Hay l4, 4001. I
;
I
Prcn the Probatl! Court ~o. 2 of Harria County, Texas Trial Court •caua:e Ho.
!
Appellants• Opening Briat !
Michael loa•tcon, P.O. BoK Sl5U, Houston, Tcxo111111 7'7052, '71J~'771-U9'4, EilstProLaw I
..,.n.e~.
l
£li~jg!,. P.O. Box 5:2518, Houaton, Tlltx.lR '710S:Z, '7llM1'7lwB494, &iut:ProLaw l
l
e.t.&ll.COIII,
Th~•, ttle argurw.ante udc by Appellees in the Probate Court t.h.at. Judge
Bu~ell denied the pendiDCJ I\Otiau to di•quality .Judg• Wood on June ~. '200fi, !.all
b1aed on four gr~•r
1. IA.clc of juried.iction. •• tbe caeo ..... e on dinrct appeal -.ad bad ao't bal!!l
&bate~ or roaa~d. Cll: Vol. ~. (Kay 11, :ZOOJ). OOOfiO, 1in_,, 4:-5;
:z. Uck ol ju'"iedictloD, ba1ed on tb~ hck of an order ot a••igDNent;
3 • .:7uclge Bu.rwell'l o.m pleadinqa, juc1ic:ial ad11i.aeiane, ed her .Jffidavit ltati.r.q
that her iavolYttfMAt io tbh ca•e tenain.ated ~ Nov~r J, 2005, and that ohe waa
not reappointed to baar any ot.haT N.t.tarJ. CRt Vol. l I"•Y 11, 4:001), oooo,a-
0001 o~; and,
4. Tbi• rx s»rto AJld unngtJr:ed bearing vaa •cooducted• by a ju.dge who vao.
without an order ot .aaoi.gna.ent: ·vao "conducted• in Claar l...llke City, 1'•xae, out.eide
of the COWlty aaat aa def.J.ncd by thie CO\Jrt iu H•llon S•rv.1r:c• v TotX"h• Ro••,
•upr• C'l: Vol. l, (Hay 11, 2007), OOOJOJ .. OOOJ01. (County 1111•t i• t.he pJAco .where
tho couJHY courtllouect 1a Jocatsd, •nd no other pJ.•c•f) (f'Nl&J
PNl8. Thi• i1 yet ;mothtn; e.)l:~ple of Guy Hennan'o inapprOpriate
•ctiona: r:alling Judga Burwell alld. direct.in9 her to go to Clear
10
A pro\»1~ cmitr m j'lldg1rLn\ u f~m\ if i\ tootlmi'lt\1 dl!.~Q of Mid i\ dtt\\ivt of 1ht U!ut m
contravened question for which that particular part of the proceeding was brought, even if the decision does
nol fully and f111ally dispose of !he entire probate proceeding. Fischer v. WilliaMs, 331 S.W.2d 210,213
(Tc •. l960}.
Jurlgc Wood's Response co Intervenors' Monon ro Vee a~ ... Page 8 of 14
Exhibit E
Page 8 of 29
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 51 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
J
.· '.
'
W-e. City~ Tau,, •rnJ th~h rule: on • ~t~l!lttC!t' wit.hQ~t qiY~I\9 not..u;~
to •rtyo!\rr, and dter SfUI flhd her att!da\IH in the cat•,
ORDER ON MOTION TO RECUSE An'ER HEARING
18. Judge Underwood issued his ORDER ON MOTION 1'0 RECUSE AFTER HEARING on
February 5, 2008.n The purpose of this analysis is not to challenge the ruling. Since February 5,
2008, Judge Wood stands recused. There is no appeal. The purpose of this analysis is 'twofold:
(!)The language of lhe ORDER is not as clear as is represented to this court by lhe intervenors;
and (2) the intervenors • application of the ORDER to this case is their same "void'' argument.
19. Like the decision in Whatley,'l Judge Underwood finds that Judge Wood".•. has
done nothing on the bench that would warrant recusal."
20. The second paragraph of Judge Underwood's Order gives the reason for granting
recusal and is best broken down sentence-by-sentence.
a. "Th~ moving parties have gon~ so far as 10 sue Judge Wood in fed~ral court and
artempled to subpoena him 10 t'stif:y in thai action." It is true that the moving parties,
intervenors in this ease, have sued Judge Wood in federal court. However, there is
nothing in the record lo show that Judge Wood was subpoenaed to testify in the federal
cases. The only witness subpoena issued or quashed was the August 5, 2005, Daniel
Shea witness subpoena discussed in, 13, above. Mr. Shr.a subpoenaed Judge Wood to
testify in the hearing to recuse him (Judge Wood) on August 9, 2005.
II
t!Xtrlbit F. O!uJ~R ON MO'TIOII'l'O REcuSilAFTI!R Hl!ARINO.
ll
In " Whalley. Not Reported in 5 .W .3d. 2006 WL 2948230. 2 (Tex.App.•Hous. (14 Diil., Ocrober 13,
2006)) Allhou~on n:lacor's argument i1 that tile September 9"' d,i"lualificuion ponlon of the recu$.01 motion waJ not
referred, we find no merit to lhatvgumcm. The September 911> motion w.. referred to rile l'l'esiding Judge and wu
assigned to Judge BUJ"W959 S.W.2d 26S,
271 (Tex.App.·Houston [14 Dist.J.I997; no wril.) (discussing the "e:~:lnljudicial source"
li
doctrine in Lite/cy v. U.S., 510 U.S. 540, J 14 S. Ct. 1147, 127 L. Ed. 2d 474 (1994},
"ITlhus, the Supreme Court reasoned that judicial remarks during the course of a trial
that are crilica.l or disapproving or even hostile to counsel, parties, or their cases,
ordinarily do not support recusal. ld. Such remarks may do so if they reveal an opinion
deriving rrom an exlnljudicia.l souice and such remark& will do so if mey reveal such a
high degree of favoriti~m or antagonism as to make fair judgment impossible,")) Thus,
Judge Underwood's most likely authoriiy for granting recusa.l for "adversaria.l posture"
13
Compan 'n!x. CoiiST. an. V, § ll {prohibiting • ju!lg~ !Tom si!lin& in any ~ll!ie in which: he rnay be
llllete&1cd, a plll1y is related to lllc judge by conn.nguinity or affinity in degru prueribed by law, or lhe judge shall
have bun eounscl in the euc), wilh TI!X.R. Crv. P. J8b(2)(a}, (b) ("Julring a judge to n:cuse himsetl in any
proceeding in which his impat1hlity mir,bt 1UfOI\.Ibly be que-stioned or Ill! hu a personal biu or pR.judicc
COI>CClTiing 11 pany1. Tl>trefor<:, despite lh«t Ms. NorrMn and Mr. She.o's modon wu li!l<;d a modon for
constitutional disqu>lificationlrecual, iu submnce w;u instead a motion to recuse under rule 18b.
Juda:e Wood's Raponae to lnterveoon;' Motionl.o Vacate ..• Page lO of 14
Exhibit E
Page 10 of 29
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 53 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1 'I
would be l Rb(2)(a): "his impartiality mighl reasonably be quutirmed;" which is ground
for recusal, but- not disquali[ication.
21. The intervenors have presented no evidence (other than llieir motion) to support
their claim that Judge Wood has any pecuniary or personal interest in Mr. Whatley's
guardianship. And, it is obvious that Judge Underwood finds that Judge Wood had no pecuniary
or personal interest in the case. 14 Without such interest, there are no grounds for constitutional
disqualification.
22. Why is the distinction important? A trial judge may be removed from presiding
over a particular case because: (I) he is disqualified under Article V, section 11 of the Texas
Constitution; (2) he is disqualified under Section 74.053 of the Government Code; or {3) he is
subject to recusal under ci vi! procedure Rules 18a and 18b. In re Union Pacific Resources Co.,
969 S.W.2d 427, 428 (Tcx.l998)(orig. proceeding). The grounds and procedures for each type
of removal are fundamentally different. In re Union Pacific Resources Co., 969 S.W.2d at 428.
"When a judge continu~ to sit in violation of a constitutional proscription, mandamus i5
available to compel the judge's mandatory disqualification without a showing that the relator
Jacks an adequate remedy by appeal. . .. This mnkes sense, because any orders or judgments
rendered by a judge who is constitutionally disqualified are void and without effect." !d.
Conversely, "the erroneous denial of a recusal motion does not void or nullify the presiding
judge's subsequent nets. While a judgment rendered in such circumstances may be reversed on
appeal, it is not fundamental error and can be waived if not raised by proper motion." !d. This is
precisely why the intervenors directly appealed Judge Burwell's Order denying the same
Judge Undorwood's OROI!Il o~ Mono~ TO REcuse AFreR HEARod)coiCJ U..~ lhrou&)>o<>l !ht 1MB .IIHl CMYOMtd hiJiary of lhiJ c-, 1M H01>1>r.abJe Mit~! Wood'.t
behavior perfonnance u a judge lw been lhoushtful. unbiased, and impllnial. He hu been a well·
informed, well·prepared neutnl juri•t who tla• done nothing on lhe bench !hat would wamnr rccU$GI."
Judge Wood'• Response to Intervenor>' Molion to V•catc ... Page II of 14
Exhibit E
Page 11 of 29
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 54 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
September 9, 2005, MOTION TO DtSQllAUFYIRECUSE TllE HONORABLE MIKI! WOOD. Their direct
appeal is pending, sec above, p. 8.
Application to Sun Ufe
23. The intervenors continue to skirt the issue. "Complete absenc~ of all jurisdiction''
means that they must prove to this coun that Probate Court No. 2 has no subject matter
jurisdiction over this contested guardianship case. Otherwise. absolute immunity applies.'~ It
docs not matter how many orders issued by the probate court arc subsequentlydcclared void.
Orders are not "void" until a higher court says so. In re Easton, 203 S.W.3d 438, 441-442 (Te;.;,
App. - Houston [ 14
111
] zoi:J6, no pet.) ("In his first issue, relator [Mr. Easton) contends all of
Judge Wood's aforementioned actions and orders are void because several motions for recusal
were still pending against Judge_ Wood. As we have previou.~ly noted, Whatley's motion of
September 9, 2005, was unresolved at the time Judge Wood issued his order of February 7,
16
2006.") The facts in the Brandt case are suilingly simile.r to this case. "lnhus, the question is
not whether [Judge] West acted improperly when he signed the specific order complained of, but
whether he had the jurisdiction necessary to sign an order of that kind, i.e., a show-cause order,
in the case. He clearly did. Signing a show-cause order-even a void one-in a case before him is
an nct within a district judge's 'jurisdiction,' as that term is used for judicial immunity purposes.
Therefore, regardless of the motion to recuse. West acttd within his 'jurisdiction,' as zhatzerm l.J
used in judicial immunity analyses, when be signed the sbow~ause order."
" Stump v. Sparbr.Dn, 435 U.S. 349, 362·64, 98 S.CI. 1099, 1107.()9, SS L.F.d.2502 U.S. 9. 11·12, I 12 S.Ct. 286,288 (!99!}.
" Br11dt v. Wtst, 892 S.W.2d 56,67 • 68 (Tc>.App.-Houston (J Diu.},l994, ...-it denied}.
Judge Wood'• Reoponse to lntcrvenou' Motion to Vacate ... Page 12 or 14
.·.
Exhibit E
Page 12 of 29
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 55 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
24. The intervenors have never established how Judge Wood, under !he facts of this
·case, violated any ~pecific con~titutional right or how his acts 17 were objectively unreasonable.
In determining whether an official enjoys qualified immunity, the court asks (1) whether the
plaintiff has demonsuated a violation of a dearly established federal constitutional or statutory
Tight and (2) whether the official's a~tions violated that right to the extent that an objectively
reasonable person would have known, 11
Conclusion
25. The intcrveRors' Motion to Vacate !ll!erlocUiorv Order ?f Dismissal wjtiJQut
~ is further response lo Judge Wood's motio~ for final summary judgment. In their
motion the intervenors do not offer any new facts to sbow that their claim under TEX. PROBATE
CODE§ 671 has ripened. The intervenors' do not support with fact or Jaw their conclusory
notions interpreting Judge Underwood's ORDER ON M0110N TO RECUSE AFTER Hti.AIUNO.
Neither the words "disqualify" nor "disqualification" appear anywhere on the four corners of
Judge Underwood's ORDER. The intervenors asked for di$qualification. They got recusa!. In
any case, even if their fanciful inll:rpretation prevails, it does not matter because their best case
does not defeat either absolute or qualified immunity under 42 U.S.C. § 1983.
Prayer
26. Judge Wood reipectfully asks th1: court to grant final summary judgment, and for
any other relief to which he may be justly entitled.
" Judge Uoderwood'J ORPI!R ON MOTION TO Rlle\JSil Al"''l!ll HI!Ailll'&houl the long tnd convolu~ his10ry of lhis cas.e, the Honorab!<> Michael Wood'&
behavior performance u a judge has been thoughtful, unbia.sccl, and impl.l\ial. He llu been • well-
infwmed, well·psepat~d neutral juri11 who has d011e nothing on lh• bench thai wopJd "''TITDI r~l."
!l
/{opt v. Pt/ur, 516 U.S. 730, 122 S.C\. 2508, 1$3 L.Ed.2d 666 (2002); srt o/so Be/Ira• v. City of El Paso,
367 F.Jd 299, 303 (5th Clr.2004).
Judge Wood's Rupo~U to lntcT\Ienono' Motion 10 Vacat¢ .• , Page 13 ofl4
----~---``--------
·i,,
;.;:
Exhibit E
Page 13 of 29
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 56 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
Respectfully submilted,
OF COUNSEL:
``~
FRED A. iEYiJie
MIKE A. STAFFORD AssisUlnt County Attomey
Harris County Auomey TeJtas State Bar No. 11373900
I 019 Congre~s. 15th Floor
Houston, Teus 77002
(713) 755-3609 (telephone)
(713) 755-8924 (facsimile)
ATTORNEYS FOR JUDGE WOOD
CRRTIF1CAIE OF SERVICE
l hereby certify that on: February 12, 2QOR, 11 true and correct copy of Judge Wood's
rl Response to Intervenors' Motion to Vacate Interlocutory Ordc:r of Dismissal Without Prejudice
¥~
has been ser``ed by certified mail, rerum receipt requested, to aU panics of record.
I 0j
';j
~
1
I
Qj
0~
~
Judae Wood's Response t() Intervenors' Motion Ia V``<:ate ••• Poge 14 of 14
-·-·----·------. ~-----"~---·--
Exhibit E
Page 14 of 29
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 57 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
T!!E STATE OJ! TEXAS
TO ANY S!mRJJIP Oil CONSTA.BLI! 01' 'l'Hl! STAT! OP 'T!!XAS Oil OT!ll!ll. PI!R.SON
A\lll!OPJZ!;O 'l'O Slll\VB SUIIPOI!NAS AS PJI.O'IlOllill}lllUU! 176.~ T.R.C.P.
WITl'IISS SU!Il'O&N'A
CAUS! NO.lll,09l
In Ro: Gucrd!lllship of 11\e Pmon
Md !!rtalll o!PIII'I')' Leo WhAUII)' IN mE COUNTY PROMT:S COVR.T
AT LAW N0.2
HAIUUS COUNTY, T!!XAS
YOU ARB HEIU!BY COMMANDED TO SUMMON:
B'ou, fvlll11 Wood, Judi•• Pl'!lbah Co an No.1, nd lndtridually
B•rrl• Couuty Famlly Law Cantor, llU C••CNt An., e" Floor, Bouft4o, TX 1'!00l-UB9
l.n 1>6rru Cowlly, Teow, IIIII wbo II ~·ted rn m{d. wilblu Q~e hunrlr.O.rdly milu of lh•
Coul1bouoc of Hmil C01111ly, Tau, iP wbi<:JIIbo above 1uirll pendina ttt wbo may bo 11:>\lllll
lrithit~IIICb d!mucoat tho timo of O!o hwlll& to appell' before Hon. Ruucll AU$1ln lilting by
a•l&nmtnl illt!wo County ProO&U Cowt ll Low No.2, 11 U ConJ!!W, Houi!Oll, TX 77002 in and
fbr a.m. Co0111ty, on lilt```` day of A~1"112005 't 1:30 p111, to tostH\r u • willlos. on bel:roff of
tb• Po.ny !n 1l!t abovo •tylod P!Obato A¢11<111 oonc..,.lns 1 Mollcn 10 llcov,., lltacbtd bonto u
l!.rhlbi: "I." Tho law lllao provides for co!llltilllt!onal dirqualifi~:ation when bo w a
~ary hrtero.~t lD tho 01.r1eorot of • c.aso.w 10 aul!i!IO rrom doy to dayunlill&w!ulty
d\a¢hl:pd,
00 NOT PAn-to rerum thlt wrl! !o •l>ld Coun, with ..tum llloreon.abowlng!h• marmec of
IXOCIRI¢n.
Wllnau my omoltlli811&tut11 thlslht ~y of~' lGO$
li.equ61led by; Oonl.t J, Shea ( ,
Attorney at Law "
l9lBWutB.ellS!IIIot ``
HoUIIOll, 1'X 71002 By:._..<.~.-;..;__.;,.;;.;;..:L..........;
__
Dwol l. SheA TBNII!\6JBSQ
(Iuuod lo nc,ord•noe !o T.R.C.I', 116,4)
., ··=· =···
A CERTlF!ED COPY
ATTEST: " FEB 12 2008
BEVERLY7B:::-.-:K;-:A..;;.U:::l'~M:-A'"i~N,:..,c='o::.:u:..:n!~y;,CI,...er"'"k-
Harri' County, Texas
Exhibit E
Page 15 of 29
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 58 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
No. 355,095
IN RE: GUARDIANSHIP OF nm § IN PROBATB COURT
PERSON AND ESTATE OF PERRY§
LEE WHA'TI..EY §
§ NUMBER. TWO OF
§
§ HAJUUSCOVNTY,TEXAS
MOTJON TO OVA,§H S!Jl!POENA
To the Honorable Judge of Said Coun:
COMES NOW Judso Mile~ Woad, Iu; tho trial jud~:o,
any Inquiry Into hi• l'llenlal procem• would bo lmpro~ 111d wo11ld lllreaten lh• founda1io111
of Ill! i.ndllpfmdllllt lllld honorable judiciary, See U.S. v. Morgan, 313 U.S. 409, 422 (1941);
Cltiun: to Pmtrrn Owrrton Park v. Yolpe, 401 U.S, 4021 420 (1971); Br-111'/y ~. U.S., 46S
P.ld 743 (S 111 C!r. t97:t), The party tbal terved lhc su'bpollll6 on Movant h~ neither •lleaed
nor proven III)Y crxtnordlnary cin:Ul'llllancet that WO\lld juallfY ccmpelling movant to tll$llfY.
IV.
Cue l~w olc61'!)' boldolhat a judge's tes~imouy aho~ld never 'bo compelled wnan my
7·240
(Tex. 1991); Tat•"· Sr~t-, 834 S.W.2d 566. 510 (Tex. App. -Houston tV'"",-,;.'
~rd),
A CERTIFIED COPY
ATTEST: FEB 12 2008
BEVER'L Y 8. KAUFMAN, Counry Clerk
Horri1'County, Teltas ·
Exhibit E
Page 16 of 29
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 59 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
',•
..
WHB!l.BFORB PRBMJSES CONSlD!!lU!D, movant proys !hat tho l!llbpoena dlreet•d
lo him in the above ceuJa bo quashed and Nl appropriate 1.\lltlloll entered pur1N41ll to
Chapter HI oftbe Teo
1-larrit Collllty Auomey
ar.Uf~
l'ra.nlc Sanden SBN maasoo
A.Nia!&l)l Co``t~ty Al1omoy
1019 Con31'n Ave., If' Floor
Houlton, Texa1 77002
{713) 7S5·7961
{713) 7$$·8924 (Bl(
A CERTIFIED COPY
AITEST: FEB 12 ZOOS
BEVERL Y':'CB~."K,.-:-A-:-:U-::cFMc-:A~N"','"c:-ou-n-ty-::C::-Ic":'rk-
Harris County, Texas
Exhibit E
Page 17 of 29
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 60 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
I `` ' 1
NO. 35S,095
lN RB: GUARDIANS!UI' OP Tim IN PROBATE COURT
PERSON ANOBSTATEOFP!RRY
U!EWHATLBY
~BRTWOOP
JWUUS COUNTY, TEXAS
BE rr RBMEMBHJU!D thtt on tbo data bmlnbolaw w;iuea tame on for he arias
the Motion to Qua&b Subpoena torv6'4 on lucl&o Mike Wood, and tho Court bllving
APPROVl!O AS TO JIORM:
I
MlKB STAFFORD
Co!lll1y Anamoy 99999939
By1``
:PiJSandcn !IBN mmoo
A11lrtant Co11111y Auomey
1019 C"greu Avenuo, 1511\Ploor
Houaton, Tcxu 71()(11.
(713) 755-7961
(713} 7.1$·89:14 fu
A CERTIFIED COPY
ATTEST: FEB 12 2DD8
e:
BEVERI.Y KAUFMAN. County Clerk
HarTil County, Texa.t
Exhibit E
Page 18 of 29
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: I 0/30/2015 Page 61 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
PROBA-T£ COURT t:1
NO.m,c9~
IN lfE: THE PERSON AND ESTATE IN THE PROBATE COURT OF
OF PERRY LEI! WHATLEY, HARRJS COUNTY, TEXAS
A PROPOSED WARD. COUl!.T NUMBER (2) TWO
MQIION IQ lllSQUAL(l!Y/RECUSJ!: TilE HONOMBJ& MIKE WOO!;!
TO 1"HE HONORA.BLB M!KB WOOD:
Movanl, the Proposed WMd, Perry Loc Whatley, joined by Dawn John.son Wbatlcy,
respeetfully rue lhls lhell motion 10 rc.cuseldiutualil'y Judae Mike Wolld and in 111pport they would
rhow at follow•:
!. JRRBfUIABt.a rACIS
L 011 or obouc August l, ~OOS, Judge Wolld hired lbo County Attorney of Ha.rri.s
County, ToxDS, to rue 11. motion to qiWh hi1 .1\tbpoena.
2. 1ud~e Wood ft.led a motion wrueb $lolcs In part:
"Comes oow Judsc Mlli:c Wood, Judp:, Probate Coun Two of Hurls County .•• ,•·
3. AI !he wnc!usion oithc motion. Judge Wood, the named "movant,~ requ•Jt•d tlult
san~tion1 be impo:~ed. Tb.us, Sud11c Wood, by pl'!lyiag fonffirmallvo rclief!o tho form of sanctiona,
did more lbllll requ011 tlult his .JUbpoena be QUl!Shod.' He acqu!Rd • pecuniary interest in tl1c case Md
C1131 himstlf A! an adWtwy to the WhaUeya.'
11. IH1! I,AW ON PQjN"{
of li!Jna a motion to qlllllh ln which he ~ucstcd sanction~. Thus, he bceame a pl!l1)' to 111~
1
The motion 10 quuh Ia M.lloxed hereto 1$ exblblt "A" and duly II\COIJlOIIted he~ein by
n:!orcn'"'
A CERTIFIED COPY.
ATTEST: FEB J 2 2008
BEVERL'I B. KAUFMAN, Count)' Clerk
Herril County, icxa.s
Exhibit E
Page 19 of 29
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 62 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
'•
,,
underlying suit Th~ Toxll! Cotutitut!on prohiblu Judge Wood from conlilluin& at a judge in this
Cll!O. ''Najudgrsltallsl/ln atrycase whertlnhr ma)'be ITII~ruttd .... " Tsx.COI>~ll'T.lll'!. S, §§ ll·
ff. (ompba.sls lldd:d).
S. Th~ (nwes! tbal disqulll!lics a judgo is Ill inl~t, however .!mAll, which rests on a
dlre~t ~uniary or pcnonallntt.mt in lho n:~rult of the cue, Cameron v. Oremhlll, 582 S,W,ld
77 S, 176 (J'ex.l979J. [n Cam1ron, the Sup``me Court h~d a pllrty may not eauJc !ht; rc~:uul of n
jlidae by naminj the judge AS llj)lll'ty 10 lho nut. Howave:, thai iiOOI .... batlla~ed !!ere. Judge
Wood, by requestina tllllcriOils, eul hit``self in an adver>arisl role. Thus, 111 a dire~\ ruult of bis
llll11on•, "[o]onlltltutlonal diJqualifiea!lon [will render! &ny order lnvolvlna judicial discretion
absolutely void," Bucltho/11 J.SlJ. v. GilMer, 632 S.W.2d 146, 148 (Tox.l98'2).
6. AmGng olhcr cxlll'llplc• of constitutionlll dlsqu•lWeotio.n is a c.ue In wnlch a )udae
voluntarily p&rtidpalr.10 P.3d 155, 166 (3d Cit. 1993)Gudgc ahould not hlvo wrinca lctll:r to plAintiff
objellt.ln8 to ltlll:lilC!ll.l!n tlu: pleinllffJ p~1ltlon fo1 raaru!A!I1wthat WI.! flied tl>cba!lcngc the denial
of a rnotion to recuse).
7. Hm, the N!o applies with eq1.11l if not gru~et force for a request for sanc!lons
A CERTIFIED COPY
ATT!!ST: FEB 12 ZOOS
BEVERLY B. KAUFMAN. County Clerk
Harri' County, Texas
Exhibit E
Page 20 of 29
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 63 of 84
Stan Stanart, County Clerk
Harris County, Texas
r··--- -----·---··-··--·· ... ·--·- -·--··-·. · -·- -·----- ·--··- . . --·---... -.
Appendix 1
~,
.. .. l
INilte:!lB cltbor mJ!~nduet oo lho pllrt of th~ movanl.i or the Ollng of o frivolous motion which, In
the instant Cllse, was not even remotely tnlo. Accordingly, having eqt hlmsclfvoluau~rily io the role
of an BDVC!SIUY, Judge Wood stands disqualified u 1 m~tler of law.
ill. R£0UESJ FOR BglJEf
WHEREFORE, PREMISES CONSIDERED, Movants ~U~Ue:!t that prior to any further
I
proceedings in thiJ case, HONORABLE MIKE WOOD either rcc~e himself and rGqu~r that the
!
Presiding Judge of the Statutory Probata Co\li'I.S assi&n another judgGto sit in this cue, or request·
thP.I the aforesaid Presldinl! Jud;e misn another Judec to hear this motion. Movanu also request
I!
that this ColD'! take this motion under coruldoution within thn:e days of hs tiling, or set It for 1111
alternate dale for nellrillg pursuaot to TEX. R. Clv. P. !8a(b). Movanu also request such other and
l
j
~er relief, whether at law or In equity, to which they may show themselvos )un!y entJUod. .!
Respectfully submitled:
'!
L ...W OFPtCliOP Sus ...N C. NORMAN OANI!~ l SHEA PC j
., ~fii~Zl"''=-' ,, ~
SAN C.
Slate Bar No.l$083020
RMAN DAN!BLJ. SI-mA
Stalo Bar No. 18163850
9135 Katy Freeway, Suite 100 1928 West Boll Street
Houston, Tuu 77024 Ho\\ston, TX 770! 9·4814
713-465·3344 (713) 942·7500
713-468-6243 FIIC!imilc (713) 942-7507 Facsimile
ATTORNEYFORPBRRYLEE ATTORNEY POR SPOUSAL OUARDlAN
WHATLBY, PROPOSI!D WARD DI!SIONI!B, DAWN JOHNSON WHATLEY
NOTICE OE l£J(pECTED PRESENTATION
I'.LL PARTIES IN ll'mlRl!ST AND THEIR ATIORNI!YS OP Rl!COIW t.RE HI!REBY
NOT!l'IBD THAT MOVANT BXPBCTS niB M01lON TO BB PIUlSl!NTBD TO THE ruoon !HPJ!I!
DAYS AFTER THE JIIU)oiQ OP SUCH M01lON UNLESS OTHI!R.WISE. ORDl!RBD BY THE JUDQB
. 1'\.IRSUANT TO TBX. R. C!V. P lSA(B), ANY OTHER PAllTV MAY FILE Wlrn mE CLE.IlK AN
OPPOSINO OR CONCURJUNO STATE.MENT AT ANY TIMB Bl!FORI! THB MOTION IS HBAl\D,
A CERT!PTED COPY
ATTEST: .,...,._.,..,F..,;.;.E,.;,.B..;;.1.,:::..2-::=-2=00,_..,8:-:-:-
BEVERLY B. KAUFMAN, County Clerk
Harrl5 Counry, Texas
``~
Exhibit E
Deputy Page 21 of 29
ANNER. WOOD&
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 64 of 84
Stan Stanart, County Clerk
Harris County, Texas
.---------·- ---··-·-··-------
Appendix 1
NO.l'3S,09S
IN /I.E: 11IB PERSON AND ESTATl! § IN Tim PROBATE COURT Ol'
§
OP PERRY I.EB WHATLEY, § HARRIS COUNTY, T E X A S
§
A PROPOSBD WARD. § COURT NUMBER (2) TWO
AFFIDAVIT Ol DAWEL J. Sfll6
'llll!STATl!OPTEXAS
COUNTY 01' HAAAIS
BEPORR MB, niB UNOiiltS'IONCO A1.1THORITY, on thl.t day pmonall:y.appu.Rd
OANIEI. 1. SHEA, known to me by presentation of h11 Texu Drivcr't I.l~ll.IO 1o be lho perfOn
whoso a!gM~ appcw bttlow an4 who, belag by me duly IWlh doyofSeptcmber,l005lo the indivldualso.nd In themiiMu indlcotcd below:
Mr. John L. Orcen Faa:dmilc: (713) 660·9921
4888 Loop Ce.ntrlll Dr., Suite 445
Houston, TX 77081·2226
ATTORNEY FOR DA\liN 10HNSON
Wl!ATL.BY, SPOUSAL J\PPUCANT
Mr. RAy 1. Illac:lc, Jr. HMd Delivery ill Open COl.ll't
One Rlni'WIIy, Sullo 1700
Houston, TX 77056-J 997
A'ITORNBY AD !Jl'EM
Mr. RoyL. Puller HDnd Deliney in Open Court
1300 Rolllngbtoolc, SullO 608
Baytown, TX 77.Sll·l863
A'ITORNBY 'FOR APPLICANTS
ROB'BRT DANIEL WHAn..BY
AND JBAN!B ANDERSON
-~·
A CERTIFIED COPY
ATTEST: FEB 1 2 lOQB
BEVER.L Y B. KAUFMAN, Counly Clerk
Hmi! County, Teus
Exhibit E
Page 23 of 29
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 66 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
No,Jl5,0?$
INlll: OI'M I INPI\OIATBCOtm.T
Pl!UOH AND I!.Sl'ATBOPP!I!UW I
Llll! WfL\TLIIY f
I NUM!l8!!. TWO OP
I
. ,. 1 ~ colllr!Y, nw
. !
ll!O'tl!iHTQ OVAIR lllptOJIIA
!
To 1!11 RodOlo\11• JUdjplofSiid Covll:
I
COMU IIOW l.r,o lt.u 11'114, ludco '"''" c., Two of ll:m_ c:...,1, .I
t ..... ~ IIW"'U llolo IUiloo Ill 'l"•oi, I ...... oaolt``~ 1114-jucl~llJI, ltt!U .w..,.., mu.11,409, <2lf'"'~
DliiMIII ,..,_O..,..M•Yt!H,ttl U.C. W, 4l~(IP1\~ 1"'1'111 i/,1.,461
P.U 741t~• Or, 19'12~ no. !W\II>ot ""IN .......,"'_,"'' M!lNioW•I'~
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I
IV.
c... h .. tloWI!rlooliiU.flo)oM c....-. r- .77Ml
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~) 6SUJ 16 rl- P. ~) S5UJ61
A CERTIFIED COPY
ATTEST: ~f......,.£='8...,..,;1:..,..2.,..:2;;.;;.0Q:::.;8,-,-­
aEVERLY B. KAUfMAN, County Clerk
HII!Tls County, Texas
Exhibit E
~6', ~ / Deputy Page 29 of 29
ANNE R: WOODS
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 72 of 84
Stan Stanart, County Clerk
Harris County, Texas
09/24/2688 15:32 7137552680 Appendix HCAO
1
PAGE 01/0'3
Mike Stafford
Harris County Attorney
*NOTICE*
PLEASE DELIVER THE FOLLOWING PAGES TO: StrSAN NORJ\'IAN
F.AX: (281) 605~1822
Re: In re; Mary Olive Calkins; cause no. 3 78,993; Harris County Probate Court No. 2
and In re Dick C. Calkins; cause no 275,123; Iiams County Probate Court No.2.
(C.A File No. 08TRL0133).
FROM: STEPHEN SMITH
TELEPHONE: 713.755.7156 *** TELECOPTER: 7t3.755.8924
PAGES: 8+ TRANSMITTAL SHEET
DAn:: SEPTEMBER 24 1 2008
COMM.ENTS: DEPUTY CHUNG GEE'S MOTJON TO QUSAH SUBPOENA AND MonON FOR
PROT.ECTIVE ORDER.
TliANKYOU,
STEPHEN SMITH/ ·•.
*TJI1S FACSIMU.T. TRANSMJSSrON COI'.'TATNS CONFIDENTIAL INFORMATION wmr.JJ MAY ALSO H'F.
LEGALLY PlUVILEGED A-ND WHICH JSi fN'Jl::NI>ED ONLY POR TfTE US~ O'FTHE ADDRESSEE{S) NAMED BELOW.
IF YOU ARE NOT Tm; lNTENtn:D RltClPIENT OF THIS FACSJMJLE 1 OR Tfl't 'eMPLOYEE OR AGEJ'\j RESPON~HII.E FOR
DELJVli:RJNG IT TO Tm;: INT'ENDEI> RltC1PIENT1 YOU ARE HEREBY NI')TfFIED THAT ANY ntSSEMINATION Ole
C::OPYTNG OF THIS FACSIMILE IS STRJCTLY PROHIBITED, IF VOtl HAVE RECE)VF.n !lJIS FACSJMlU\ rN ~RROR~
PLWii: IMMEDIATEJ.Y NOTIFY US nv Tt.Lil'fiONE AND RF.TtrRN TIIE OIUGINAL FACSJM1Lii: TO US AT TRI!. A!OV'R
AfiDRBSS VIA nnr. :POSTAL SERVICE,
IF YOU DO NOT RECEIVE ALL OF T.HE PAGES, PLEASE TELEPHONE FRANCES SMITH AT
713.755.1287
RESPECfiVELY. THANK·YOU.
Exhibit F
Page 1 of 9
1019 Congress, 15'h Floor • Ho~\ston. Texa!l 77002 • Phone; 713~ 7.5.5-.51 ()I • Fax: 713-755-8924
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 73 of 84
Stan Stanart, County Clerk
Harris County, Texas
09/24/2008 15:32 7137552680 Appendix 1
HCAO PAGE 02/09
Mike Stafford
Harris County Attorney
September 24, 2008
Beverly Kaufman
County Clerk
201 Caroline, ath Floor,
Houston, Texas 77002
Re: 1n re Mary Olive Calkins; cause no. 378,993; Harris County Probate Court
No.2 and In re Dick C. Calkins; cause no. 275,123; Harri.s County Probate
Court No.2; CA File No. 08 TRL0133
Dear Ms. Kaufman,
Enclosed for filing is Depttty Chung Gee's Motion to Quash Subpoena and
Motion for Protective Order and Order.
Thank you for your courtesy and assistance in this matter.
Very truly youra,
STEPHENSM
Assistant County Attorney
(713) 755-7156
cc: Susan Norman
Attorney for Richard Stephen Calkins
Via Facsimile: (281) 605-1822
Exhibit F
Page 2 of 9
l019 Congress, 15'"Fioor • Houston, Texas 77002 • Phone: 713-755-SlOI • Fax: 713-755·8924
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 74 of 84
Stan Stanart, County Clerk
Harris County, Texas
09/24/2688 15:32 7f37552588
Appendix 1
HCAO PAGE 83/{39
lN RE: § IN THE PROBAT.E COURT
MARY OLIVE CALKINS § NUMBER TWO (2) OF
§ H~SCOUNTY,TEXAS
CAUSE NO. 275,123
JNRE: § IN THE PROBATE COURT
DICK C. CALKINS § NUMBER TWO (2) OF
TESTAMENTARY TRUSTS § HARRIS COUNTY, TEXAS
MOTION TO QUASH SUBPOENA
AND MOTrON FOR PROTECfiVE ORDER
To the Honorable Judge of Said Court:
Comes now Harris CoWlty Sherifrs Deputy Chung Gee, and makes the follo,ving Motion
to Quash the subpoena served upon him in this case, and a Motion for Protective Order, and
would respectfully show unto the court as follows:
I.
The attached subpoena, Ex. 1, was served upon Deputy Gee. The subpoena would
require him to testify in a recusal hearing in this case set for September 25, 2008.
II.
Deputy Gee is the bailiff in Harris County Probate Court No. 2, in which the Honorable
Mike Wood is the presiding judge. As the bailiff he is entitled to derived judicial immunity.
Under the concept of ..derived judicial immunity", the judicial immunity that attaches to judges
also attaches to persons who serve as officers of the court or whose activities are intimately
associated with tbe judicial process. Dallas Cty. v. Halsey, 87 S.W.3d 552, .554 (Tex. 2002).
Edwards v. Pena, 38 S.W.3d 191, 196 (Tex. App.-Corpus Christi 2001, no pet.). When derived
judicial immunity applies, a defendant receives the same immunity as a judge. !d. al 554. This
Exhibit F
Page 3 of 9
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 75 of 84
Stan Stanart, County Clerk
Harris County, Texas
09/24/2008 15:32 7137552580
Appendix 1
HCAO PAGE 84/09
fonn of immunity applies to personnel such as court clerks, bailiffs, court-appointed counsel, and
other administrative staff members. City ()j Houst()n v. West Capitol Ftn. Servs., 961 S.W.2d
687, 690 (Tex. App.~Houston 51
(1 Dist.J 1998, pet. dism'd.). See also Clements v. Barnes, 834
S.W.2d 45, 46 (Tex.l992) (court-appointed bankruptcy trustee had derived judicial immunity);
Delcourt v. Silverman, 919 S.W.2d 777, 783 (Tex. App. -Houston [ 141h Dist.] 1996, writ
denied) (court-appointed psychologist had derived judicial immunity).
Because he is entitled to derived judicial immunity, the subpoena served upon him should
be quashed and a protective order issued.
III.
In addition, pursuant to Tex. R. Evid. 605, a presiding judge may not testify in that trial
as a witness. Pursuant to derived judicial immunity, this rule should also apply to the Court's
bailiff.
IV.
There has been no showing by movant that Deputy Gee's testimony is relevant to this
hearing. Therefore the subpoena should be quashed and a protective order issued because his
testimony is not relevant to this hearing.
v.
Wherefore premises considered Deputy Gee requests that the subpoena served on him be
quashed and a protective order issued.
Exhibit F
Page4of9
2
- - - - - - - · · - · - · · - · -··-····· ·-·
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 76 of 84
Stan Stanart, County Clerk
Harris County, Texas
09/24/21368 15:32 71375525813 Appendix 1
HCAO PAGE 85/139
Respectfully submitted,
MIKE STAFFORD
Harris C
SMITH
Assistant County Attorney
State Bar No. 18684400
1019 Congress, 15 111 Floor
Houston, Texas 77002-1700
Telephone: 7131755-7156
Facsimile: 713/755-9824
ATTORNEYS FOR CHUNG GEE
CERTIFICATE OF SERVICE
I certify that on September 24, 2008, a true and correct copy of the foregoing was served
by certified mailt return receipt requested. or by hand delivery, or by electronic document
transfer to att parties and/or counsel of record.
£7h
sfEPHENSMITH
Assistant County Attorney
Exhibit F
Page 5 of 9
3
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 77 of 84
Stan Stanart, County Clerk
Harris County, Texas
09/24/2008 15:32 7137552580 AppendixHCAO
1
PAGE 05/09
THE STATE OF TEXAS
WITNESS SUBPOENA I SUBPOENA DUCES TECUM
PURSUANT TO TEXAS RULES OF CIVIL PROCEDURE RULE 176
CAUSE NO 378,993
lNRE: §
MARY OLIVE CALKINS lNTHE PROBATE COURT
§ NUMBER TWO (l} OF
§ HARRIS COUNTY, TEXAS
CAUSE NO. 275,123
IN RE: § IN THE PROBATE COURT
DICK C. CALKlNS § NUMBER TWO (2) OF
TESTAMENTARY TllUSTS § HARRIS COUNTY, T~XAS
To: Any sheriff or constable of the State ofTexas or other person authorized to ser.-e and
execute subpoenas as provided in Texas Rule of Civil Procedure 176.5.
You are commanded to summon Chung Gee, Deputy Sheriff, Harris County, Texas. 201
Franklin, Probate Court No.2~ Harris County, Texas, to appear ~t 1201 Franklln, Projeet.
Court No. 2,. Harris County, Texas,, on September 25, 2008, at 10:00 a.m., to appear before
Honorable Olen Underwood, and give testimony in this case on behalf of the Movant and to _remain
in attendance from day-to-day until lawfully discharged.
Chung Gee, Deputy Sheriff1 Harris County, Texas, is commanded to produce and permit
inspection of the following documents or tangible things:
The Originals of records as set forth in Exhibit "A"r.mg
two (2) copies of each Original produced.
Contempt. Failure by any person without adequate excuse to obey a subpoena served
upon that person may be detmcd a contempt of tJ,c court from whh:h the subpoena is issued
or a district court in the county in which the subpoena is served, and may be ppnlshed by fine
or confinement, or both. Tex. R. Clv. P. J76.8(a).
I
DO NOT FAIL to return this writto the Probate Court No.2 of Harris Cotin1y, Texas, with
either the attached officer's return showing the manner of execution or the :wimess1s signed
memorandum showing that the witness accepted the subpaena.
ISSUED on September 9, 2008.
By: S:.., ~ C tJ~r...r..,..J t>/f
SUSAN C. NORMAN
Texas Bar Number 15083020
P.O. Box 806
Richmond, Texas 77406-0806 ·
Phone: 281-802-5341
Fax:28l-605-!822
This subpoena was. issued at the request of Movant, Richard Stephen Calkins, whose
attorney of record is Susan C. Nonnant P.O. Box 806, Rlehmond, Texas 77406·0806, Phone: 281-
802-5341:
Exhibit F
Page 6 of 9
1
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 78 of 84
Stan Stanart, County Clerk
Harris County, Texas
..-------------------- ----.,...----------,------1
Appendix 1
09/24/2008 15:32 7137552580 HCAO PAGE 137/139
RETURN OF SERVICE OF SUBPOENA
I. delivered a copy of this subpoena to Chung Gee,
Deputy Sheriff, Harris County, Texas, 201 Franklin, Probate Court No.2, Harris County, Texas, in
Harris County, Texas, on t h e _ day of , 2008, at o'clock .m.. and
tendered to the witness a. fee of$ j 1.00 if) cash. - -
I , - - - - - - - - - - - - - - - - - ' was unable to deliver a. copy of this
subpoena to roc the following reasons:
By:
--~--~---------------
. Person who is not .a party and is
18 years ofagc .or older.
ACCEPTANCE OF SERVICE OF SUBPOENA BY
WITNESS UNDER TEXAS RULE OF CIVIL PROCEDURE 176
I accept service of this subpoena.
Signature of Witness
Printed Name of Witness
Date
FEE FOR SERVICE OF SUBPOENA:---
Exhibit F
Page 7 of9
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 79 of 84
Stan Stanart, County Clerk
Harris County, Texas
r----------------------=-~-·-·--··-····
Appendix 1 ....
09/24/2008 15:32 7137552580 HCAO PAGE 08/09
\.
'
EXHIBIT A
All written reports, conununications, notes, tape, audio, or DVD recordings, statements,
related to Susan C. Norman, arising out of Deputy Chung Gee's employment with Harris County
Sheri fr s Department, and assignment to Probate Court Number 2 of HaJTis County, Texas from
August I, 2008, to date ofresponse to this subpoena ·
All written reports, communications, notes, tape, audio, or DVD recordings, statements,
related to Rhonda Clark arising out of Deputy Chung Gee's employment with Harris County
Sheriff's Department, and assignment to Probate Court Number 2 of Harris County, Texas from
August 1, 2008, to date of response lo this subpoena.
Exhibit F
Page 8 of 9
3
·--· ····----------
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 80 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
~9/24/2008 15:32 7137552580 HCAO PAGE 139/09
•i
INRE:
§ TN THE PROBATE COURT
MARY OLIVE CALIONS § NUMBE.R TWO (2) OF
§ ,HARRJS COUNTY, TEXAS
CAUSE NO. 275,123
INRE:
§ IN THE PROBATE COURT
DICK C. CALKINS §
TESTAMENTARY TRUSTS NUMBER TWO (2) OF
§ .HARRIS COUNTY, TEXAS
ORDER
Came on to be heard the Motion to Quash Subpoena and Motion for Protective Order of
Chung Gee and it appearing to the Court that such motion should be granted it is hereby,
Ordered, Adjudged, and Decreed that the ~ubpoena served on Chung Gee is hereby
quashed and a protective order issued prohibiting him from testifying in this hearing.
Signed this _ _ _ day of September, 2008.
Judge Presicting
Exhibit F
Page 9 of 9
4
. comp Hance with the Public Information Act.
Confidential information may have been redacted from the document m
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 81 of 84
Stan Stanart, County Clerk
Harris County, Texas
Appendix 1
COPY
TOMMY THOMAS
Sheriff of Ha"ls County
J 100 f.lfl ker .Street
HOUSTON, TEXAS 77002·1106
www.hctx.net/so
August 29, 2oos
To: Don ~Williams, Major
Fred Brown, MaJor"
rrom: Ce~ptai~
J.T. llert,
Re: Complaint (?) of s~\~n Norman
I am in 'receipt of the papeNVOrk faxed to the Office of Inspector General (OIG) by Ms. Susan Norman and re-
ceived on August 21'h per the date/time stamp of the fax machine (Cover sheet states August 28, 2008).
Upon review of the documents provided, I can find no complaint. Instead, 1find copies of various documents to
include:
Cover sheet (1 page)
First Supplement to the motion to Recuse (4 pages)
A letter to Deputy C. Gee (2 pages marked ·ex A.)
A letter to Ms. Norman from a Michael Easton (5 pages marked ·ex B") ·
A second copy of First supplement to the motion to Recuse (4 pages)
A second copy of a letter to Deputy C. Gee (2 pages marked "Ex A"}
A second copy of :a letter to Me. Nonnon from o Mich::lol eoston (5 pages marked "Ex 8")
Total number of pages reviewed twenty three.
In this review I did not find a complaint directed to either the Sheriffs Office in general nor to the OIG speciticany.
As this reviewer cannot look into tne mind of Ms. Norman, r have conCluded that she either failed to make a o:r
herent complaint on whatever matter she meant to have (;lddressed or she means to convey her complaint in a
different manner.
During the review I did find in the letter addressed to Deputy Gee referenced above, a threat of a Federal law-
suit being filed agalnst the Department tn relation to an incident that occurred in the courtroom to which Deputy
Gee h:i assigned (Probate Court fiZ, 1201 Caroline, Suite 660, Judge Mike Wood presiding). Outing Uu:sl ill\:i·
dent Deputy Gee confiscated an electronic device from an emp!oyae of Ms. Norman. The device v.ras retumed
to Ms. Norman after the hearing in which she was partlcipating was concluded.
on August 29, 2008, at approximately 1100 hours I met with Judge Wood ln his chambers. Judge Wood in-.
f(lrmen rna that the previolLS to the incident he had observed an assistant of Ms. Nonnan hand what ap~af'Ed
to htm to be a recorder to Ms. Wood as she left the courtroom. On the day of the incident Judge Wood ordered
Deputy Gee to confiscate any reec>rding device.he may observe.
According to an incident report prepared by Deputy Gee, he "... observed a white female sitting In the back
pointing an electronic object with blinking lights towards the bench area." In accordance with the judge's orders
and in his belief that the device was being used to record the proceedings Deputy Gee secured the device and
placed in on the bench in rront of Judge Wood. Based on the information provided by Judge Wood it is obvious
that Deputy Gee was acting under his orders when he confiscated the electron~ device. Subsequently. IF this
is the incident of whiCh Ms. Norman wished to complain there is no basis for an ipvestigation. Exhibit G
\ Page 1 of 2
Office: 713.755.1260 0FF1Cf OF' INSPJI;CTOR GENERAL Fax: 713.7SS.9S64
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 82 of 84
Stan Stanart, County Clerk
Harris County, Texas
r - - - - - - - - - - - - - - - - - - -........ -···-··· ----·····----------·········--·--·--·----------·-··
Appendix 1
-
...,
.
.
COPY
Based on the information provided by Judge Wood it is obvious that Deputy Gee was acting under his orders
when he confisc~ted the electronic device. SubsequenHy, fF !hi£ it tha incidant or which Ms. Norman wished to
complain there is no basis for an investigation.
I also spoKe wttn Deputy Gee and aSked him If It was standard practice for ntm to maKe rne aamonrsnment ,
which I have witnessed numerous times over the years, to the courtroom on the day of the incident that orders
that all electronic devices be turned off or silenced (verbiage differs between bailiffs)? Deputy Gee said that it is
standard practice to make this admonishment
NOTE: To the nght of the entronce doore to Probote Court #2 there iQ a sign po:.ted that :.t.e
tum off all cell phones, pagers, etc.
As Ms. Norman has, in ner correspondence, made an overt t11reat or filing a Federal lawSuit against tne De-
partment, a copy of her correspondence was forward to Mr. Fred Keys of the County Attorney's Office for his
information.
Cc: Fred Keys, County Attorney's Office
Exhibit G
=--===``~--=====-------~------~=--=====````of2
2
··Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 83 of 84
Stan Stanart, County Clerk
Harris County, Texas
r-----------~-- ....... _____ ----···-----·-··-------··
Appendix 1
SBC Yahoo! Mail- rjb@rjbl.,~klaw.com
Page J of I
~tlSMAll BUSINESS Print· Close Window
lman
Subject: FW: Michael Easton and the unauthorized prac:tice of law
Date: Wed, 7 Dec 2005 16:58:07 -0600
From: "Lewis, Marilyn (Probate Courts)'
To: rjb@rjblacldaw.com
Ray,
FYI and could you forward this to Jimmy Walker as well?
Thanks,
Marilyn
----Original Message-----
From: Gunnels, Meg (Probate Courts)
Sent: Wednesday, December 07, 2005 4:56PM
To: Lewis, Marilyn (Probate Courts); Wood, Judge Mike (Probate Court)
Subject: FW: Michael Easton and the unauthorized practice of law
FYI
·····Original Message----·
From: Martha Falling PC [mailto:mfailing@mindsprlng.com]
Sent: Wednesday, December 07, 2005 11:10 AM
To: Gunnels, Meg (Probate Courts)
Subject: Michael Easton and the unauthorized practice of law
Meg--1 am a member of the Houston UPL subcommittee and was assigned the Michael Easton case before the
current lawyer. Easton has been before our committee a number of times and we don't seem to l:>e able to gel
anything done, He is very aggressive.
I understand he has been driving Court 2 crazy and that you have referred him to the committee for another
look.
Would you consider filing a complaint directly with Rodney Gilstrap, the state chair of the committee? His
address Is P. 0. Drawer A, Marshall, Texas 75671. His email address ls gilstrap1957@yahoo,com, I am asking
this because we can't move the case in Houston.
Please let me know If you have any questions about this. 713·521-0026 in case you want to call. We would all
appreciate getting him out of the couris-from Montgomery to Brazoria counties and everybody in between.
Thanks.
Martha Failing PC
mfaifing@mjndsp.llilg,QQID
"R'S MEMORANDUM.
RECOROr. . his instrument watJ
At the time of recordahoni~e best photographiC
found lobe inadequate fo[ illegibility, carbon. or
reproduc!IO~' _t>ecause oaper etc. All blocko~ts,
photo copy. d1sco\oreo Pere 'present at thP tur.e
additions and cha~s~ ~
\he instrument W8'5 fll R BLACK-SUPP
01873
Exhibit H
Page 1 of 1
http:/lbJ.mail.yahoo.com/ym/rjblacklaw .com/ShowLetter?box==Inbox&Msgld=560_1117... 12113/2005
Confidential information may have been redacted from the document in compliance with the Public Information Act.
Appendix 1, First Amended Motion Disqualify Judge Wood
A Certified Copy on Constitutional Grounds
Attest: 10/30/2015 Page 84 of 84
Stan Stanart, County Clerk
Harris County, Texas
APPENDIX 5
Appendix 5, RR James Chose Hon. Sebesta First
Page 1 of 7
APPENDIX 5
Appendix 5, RR James Chose Hon. Sebesta First
Page 2 of 7
APPENDIX 5
Appendix 5, RR James Chose Hon. Sebesta First
Page 3 of 7
APPENDIX 5
Appendix 5, RR James Chose Hon. Sebesta First
Page 4 of 7
APPENDIX 5
Appendix 5, RR James Chose Hon. Sebesta First
Page 5 of 7
APPENDIX 5
Appendix 5, RR James Chose Hon. Sebesta First
Page 6 of 7
APPENDIX 5
Appendix 5, RR James Chose Hon. Sebesta First
Page 7 of 7
APPENDIX 10
0 0
No. 441,165
INRE: § PROBATE COURT
MARY OLIVE HULL CALKINS, § NUMBER FOUR
DECEASED § HARRIS COUNTY, TEXAS
AMENDED ORDER GRANTING APPLICANT'S MOTION TO RECUSE
On this day, the Court on its own motion finds it necessary to amend its prior
Order Granting Applicant's Motion to Recuse signed on July 30, 2015 and hereby
m substitutes this Order. The Court considered Applicant, Carolyn· Calkins James's ·
0
Motion to Recuse the Honorable Christine Butts as presiding judge over Cause No.
441,165 in Probate Court Number Four and, having considered the Motion, the Court is
of the opinion that it is in the best interest of the above-referenced cause that the Motion
be GRANTED. It is therefore
ORDERED that the Honorable Christine Butts recuses herself from Cause No.
441,165 together with all subdockets, if any; and it is further
ORDERED that the Honorable Christine Butts will take no further action in this
cause except to refer this cause to the presiding statutory probate judge for the State of
Texas.
Pursuant to Section 25 of the Texas Government Code, the undersigned hereby
requests that the presiding statutory probate judge for the State of Texas, the Honorable
Guy Herman, assign a statutory probate judge to preside in this cause.
Signed September....-!!.1--=-_ ___.,'-=2"01:o.::.5.
FILED
2015 SEP -3 AH 7: 51
Christine Butts, Judge
Harris County Probate Court No. 4
s~ ;;;;.;-~
COUNTY CLERK
<.!!PRISCOUNTY, TO~<
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 10/30/2015
Stan Stanart, County Clerk
Harris County, Texas Appendix 10, Judge Butts Amended Order of Recusal
Page 1 of 1
)Veb Inquiry Page 1 of8
APPENDIX 9
Courts Property Records Personal Records Other
Probate - November 1837 to present
··-··-··----
··------ . ------------ ----- - ----------- - -x~-~9``- 1
available
Case Number: .441165 from
Sept. 1,
1999 to
present
105
Event
Record
I (s)
-I @Party ~. Attorney -- - - - - - - - - - - - - - - - - Found.
Name
(To): _____ __.,___________ ill
- - -------- tim
File Date (From): _._
Probate
I Case Type: :Probate "' . -reflect
(s)
filings
accepted
through
2015-
10-30
. Commenced . View
- r·
Case Court F1le Date By Status Nature Style Location All
.... ··-· -- Ti___ .f7/08t20i5TAPP``tiO;;-·loPEN T````fe-~u~[``~ -~ i
1441165 i i !and Issuance !HULL I !Parties i
i ! !of Letters cALKINS , j
1
1 ;
l__________;________l _______L __________;__ _____ iT``tamentar:y ! DE~E~S~PL______ j____ _j
Case File Event Comments Pgs Document
Date ID
441165 07/08/2015 Case Initiated - POSTDOD 07-08-2015PWLTRETURN PBT-2015-
http://www.hcclerk.net/applications/masterinquiry/Probate.aspx I 1/2/2015
'·
A CERTIFIED COPY
ATTEST: NOV 0 2 20115
STAN STANART, County Clerk
Harris County, Texas Appendix 9, Probate Clerk Docket for 441165
Page 1 of 8
``z.~
- ~¥'/.-. . :· ..
--~
--/t----~+----~
-=----
v - Deputy
Brittany R. Jackson-Gnffin
Web Inquiry Page 2 of8
APPENDIX 9
Application DATE 07-20-2015 221762
441165 07/08/2015 Abstract of PBT-2015-
1
Notice 221764
441165 07/08/2015 ELECTRONIC
0
FlUNG FEE
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441165 07/09/2015 BASIC- PHILLIP CALKINS STRAUSS, 200
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A CERTIFIED COPY
ATTEST: - - - - - - - -
STAN STANART, County Clerk
Harris County, Texas Appendix 9, Probate Clerk Docket for 441165
Page 2 of 8
Web Inquiry Page 3 of8
APPENDIX 9
441165 07/17/2015 Contest to a Will ANSWER & WILL CONTEST OF
(Indep.) RICHARD STEPHEN PBT-2015-
3
CALKINSPOSTRETURN DATE: 233482
8/3/2015
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441165 07I 17/2015 Application to PW-LTPOSTRETURN DATE: 8/3/2015
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RICHARD STEPHEN CALKINS TO
APPLICATION OF CAROLYN JAMES
PBT-2015-
FOR APPOINTMENT OF CAROLYN
235157
JAMES AS TEMPORARY
ADMINISTRATOR OF THE ESTATE OF
MARY OLIVE HULL CALKINS
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A CERTIFIED COPY
ATTEST: ----'=--"--'-'--
STAN STANART, County Clerk
Harris County, Texas Appendix 9, Probate Clerk Docket for 441165
Page 3 of 8
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APPENDIX 9
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22
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STAN STAN ART, County Clerk
Harris County, Texas Appendix 9, Probate Clerk Docket for 441165
Page 4 of 8
Web Inquiry Page 5 of8
APPENDIX 9
APPLICATION FOR APPOINTMENT OF PBT-2015-
2
TEMPORARY ADMINSTRATION 247303
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AND CODICILS
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2
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7/30/15
441165 07/31/2015 Objection STATEMENT IN OPPOSITION TO THE
MOTION TO RECUSE FILED BY PBT-2015-
COUBSEL FOR CAROLYN JAMES AND 5
249565
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A CERTIFIED COPY
ATTEST: _;_:_:;_..:__~'--"-'"-'"'--­
STAN STANART, County Clerk
Harris County, T~::xas Appendix 9, Probate Clerk Docket for 441165
Page 5 of 8
Web Inquiry Page 6 of8
APPENDIX 9
Returned WILL CONTEST BY POSTING 2 249640
441165 08/03/2015 Citation SERVED CITATION ON APPUCATION
Returned PBT-2015-
FOR PROBATE OF LAST WILL AND 2
249708
CODICILS BY POSTING
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253557
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441165 09/03/2015 RECUSAL ORDER AMENDED ORDER GRANTING
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APPLICANTS MOTION TO RECUSE, 1
296895
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441165 09/09/2015 Notice of SEPTEMBER 15, 2015 AT 10:00 AM PBT-2015-
2
Hearing 295914
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ATIEST: ----!~--"'---......lilL!*W'-"'--­
STAN STANART, County Clerk
Harris County, Texas Appendix 9, Probate Clerk Docket for 441165
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APPENDIX 9
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AITEST: - - - - - - -
STAN STANART, County Clerk
Harris County, Texas Appendix 9, Probate Clerk Docket for 441165
Page 7 of 8
Web Inquiry Page 8 of8
APPENDIX 9
JUDGE MIKE WOOD
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SIGNED 10/16/15
441165 10/19/2015 Miscellaneous MINUTE ORDER; SIGEND 9/8/15 PBT-2015-
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ATIEST: - - - - - - -
STAN STANART, County Clerk
Harris County, Texas Appendix 9, Probate Clerk Docket for 441165
Page 8 of 8
APPENDIX 8
CAUSE NO. 441,165
IN THE ESTATE OF § IN PROBATE COURT
§
MARY OLIVE HULL CALKINS, § NUMBER FOUR OF
§
DECEASED § HARRIS COUNTY, TEXAS
MOTION TO RECUSE
THE HONORABLE CHRISTINE BUTTS
AND
MOTION TO CONSOLIDATE WITH GUARDIANSHIP CASES
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Applicant Carolyn Calkins James (“Applicant” or “Carolyn James”),
pursuant to Tex. R. Civ. P. 18a & 18b(2)(a),(b) in the above-entitled and numbered cause, and files
this her Motion to Recuse the Honorable Christine Butts (“Judge Butts”) as presiding judge in the
above-captioned cause in Probate Court No. 4 of Harris County, Texas, and Motion to Consolidate
with pending Guardianship cases, and in support would show:
Synopsis
Carolyn James respectfully asserts that justice demands that Judge
Butts be recused from the present case. Recusal is sought because
Judge Butts recused herself sua sponte in the underlying
guardianship case involving the same parties and same issues. The
judge has admitted there is a reasonable question as to Judge Butts’
impartiality and extra-judicial conduct reflects a personal bias or
prejudice against Carolyn James and/or a personal bias or prejudice
in favor of Carolyn James’ opponents in this case.
BACKGROUND.
1. Applicant Carolyn Calkins James is daughter of Mary Olive Calkins. Mary Olive
Calkins (“Decedent”) died on July 8, 2015, at the age of 93 years.
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 1 of 41
APPENDIX 8
2. Seven years ago, on March 18, 2008, Applicant Carolyn James filed her application
for guardianship asserting that her mother Mary Olive was mentally incapacitated, and therefore
needing the appointment of a guardian pursuant to the Texas Probate Code. This guardianship action
is styled Cause No. 378,993; In re Guardianship of Mary Olive Calkins, an incapacitated person;
in the Probate Court No. 2, Harris County, Texas. This case is still pending.
3. Additionally, there are a total of four cases all pending in the Harris County Probate
Courts:
A. Cause No. 378,993; In re Guardianship of Mary Olive Calkins, In Probate
Court No. 2 of Harris County, Texas;
B. Cause No. 378,993-401; In re Guardianship of Mary Olive Calkins, In
Probate Court No. 2 of Harris County, Texas;
C. Cause No. 275,123; In re Dick C. Calkins Testamentary Trusts, In Probate
Court No. 2 of Harris County, Texas; and,
D. Cause No. 275,123-401; In re Dick C. Calkins Testamentary Trusts, In
Probate Court No. 2 of Harris County, Texas.
4. There has been no judge presiding over these guardianship cases since 2012. The
last judge, Judge Sebesta, resigned and recused himself sua sponte on or about December 3, 2012.
5. All of the statutory probate judges in Harris County either recused themselves sua
sponte or were ordered recused. See Orders of Recusal, Exhibits A, B and C (Sua sponte recusal).
Judge Wood, who was the first probate judge, was recused by order the Regional Judge for the
Second Administrative District of Texas. See Order Recusal of Judge Wood, attached as Exhibit
D. (Applicant asserts the recusal of Judge Wood is void, rendered without subject matter
jurisdiction, and facilitated the parade of probate judges who have either recused themselves or been
recused by a groundless motions to recuse. See TEX. CIV. PRAC. & REM. CODE § 30.017.)
Applicant Carolyn James’ Motion to Recuse and Motion to Consolidate with Guardianship case 2
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 2 of 41
APPENDIX 8
6. On July 8, 2015, Carolyn James applied to admit Decedent Mary Olive Calkins’s will
to probate. Applicant also moved for emergency intervention. On July 15, 2015, this Court held
a hearing on the motion. Respondent Richard Calkins pointed out that Judge Christine Butts had
recused herself sua sponte in the underlying guardianship case and all sub-docket cases. See Judge
Butts’s Order of Recusal, Exhibit A. The Court proceeded with the hearing, but held that she did
not have jurisdiction of the motion. The Court declined to rule.
ARGUMENT AND AUTHORITIES.
Applicant CAROLYN JAMES entitled to an impartial Judge.
7. Attorneys (and Judges) must respect and honor the judicial office as a public trust
and strive to enhance and maintain confidence in our legal system. TEX. CODE JUDICIAL CONDUCT,
preamble, reprinted in TEX. GOV'T CODE ANN., title 2, subt. G, app. B. In this regard, the Texas
Code of Judicial Conduct requires that judges observe high standards of conduct so that the integrity
and independence of the judiciary is preserved; conduct themselves at all times in a manner that
promotes public confidence in the integrity and impartiality of the judiciary; refrain from conveying
or permitting others to convey the impression that they are in a special position to influence them;
and refrain from financial dealings that tend to reflect adversely on their impartiality or exploit their
judicial position. See generally id.; Aguilar v. Anderson, 855 S.W.2d 799, 814 (Tex. App. – El Paso
1993, writ denied) (Barajas, J., concurring and dissenting).
8. The purpose of a recusal motion under TEX. R. CIV. P. 18a is to insure that all
litigants have the opportunity to have an impartial judge preside over their case. Brosseau v.
Ranzau, 911 S.W.2d 890, 892 (Tex. App.– Beaumont 1995, no writ).
Applicant Carolyn James’ Motion to Recuse and Motion to Consolidate with Guardianship case 3
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 3 of 41
APPENDIX 8
Grounds for Recusal.
9. TEX. R. CIV. P. 18b (2) provides, in part, that judges shall recuse themselves when
their impartiality might be questioned or when they have a personal bias or prejudice concerning
the subject matter or a party. TEX. R. CIV. P. 18b(2)(a),(b). Judicial decisions rendered under
circumstances that suggest bias, prejudice, or favoritism undermine the integrity of the courts, breed
skepticism and mistrust, and thwart the principles on which the judicial system is based. Sun
Exploration and Production Co. v. Jackson, 783 S.W.2d 202, 206 (Tex.1989) (Spears, J.,
concurring).
The Standard.
10. In determining whether to recuse pursuant to TEX. R. CIV. P. 18b, the inquiry should
be "whether a reasonable member of the public at large, knowing all the facts in the public domain
concerning the judge's conduct, would have a reasonable doubt that the judge is actually
impartial." Rogers, 909 S.W.2d at 881(Enoch, J., concurring); see, e.g., Aguilar, 855 S.W.2d at
804-05 (Osborn, J., concurring).
Judge recused herself from the guardianship cases.
11. Pursuant to the Texas Estate Code, the proper venue for a probate proceeding is in
the Court in which the decedent’s estate is pending. See TEX. ESTATE CODE § 33.002 (Action
related to probate proceeding in statutory probate court). There are four cases pending in Harris
Court regarding the decedent’s estate. See ¶¶ 3 & 13 (E.g., Cause No. 378,993; In re Guardianship
of Mary Olive Calkins; in Probate Court No. 2 of Harris County, Texas). The Harris County Probate
Courts Local Rules mandate that a subsequent application to admit will to probate shall be filed in
the same court in which the guardianship was pending. HARRIS COUNTY PROB. CT. LOC. R. 2.2 &
2.5, attached as Exhibit E.
Applicant Carolyn James’ Motion to Recuse and Motion to Consolidate with Guardianship case 4
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 4 of 41
APPENDIX 8
12. When the ward or proposed ward dies while a guardianship is pending, the probate
court must settle the guardianship. See TEX. ESTATE CODE § 1204.001 (Settlement of guardianship);
see also Zipp v. Wuemling, 218 S.W.3d 71, 74 (Tex. 2007) (probate court retains jurisdiction after
death to settle the estate); In re Guardianship of Bayne, 171 S.W.3d 232, 236 (Tex. App. – Dallas
2005, pet. denied) (guardianship [of estate] stays open after death of proposed ward).
13. There are four ongoing cases pending in the Harris County Probate Courts:
A. Cause No. 378,993; In re Guardianship of Mary Olive Calkins, In Probate
Court No. 2 of Harris County, Texas;
B. Cause No. 378,993-401; In re Guardianship of Mary Olive Calkins, In
Probate Court No. 2 of Harris County, Texas;
C. Cause No. 275,123; In re Dick C. Calkins Testamentary Trusts, In Probate
Court No. 2 of Harris County, Texas; and,
D. Cause No. 275,123-401; In re Dick C. Calkins Testamentary Trusts, In
Probate Court No. 2 of Harris County, Texas.
14. On March 11, 2011, Judge Butts recused herself from these cases. See Judge
Butts’s Order of Recusal, Exhibit A. The Honorable Christine Butts cannot preside over the
guardianship cases still pending when the Decedent died. A judge may recuse herself in any
proceeding in which one of the grounds listed in Tex. R. Civ. P. 18b(b) are present. See TEX. R. CIV.
P. 18b(b); Dunn v. County of Dallas, 794 S.W.2d 566, 562 (Tex. App. – Dallas 1990, no writ). A
voluntary recusal is an admission that the judge is not impartial or that one or more of the grounds
listed in TEX. R. CIV. P. 18b is present. Id. For example, a voluntary recusal is an admission that
the judge’s impartiality may reasonably be questioned.
15. Once a judge enters a voluntary recusal, the judge must: (1) request that the regional
judge assign another judge to hear the case, and (2) take no further action in the case unless there
is “good cause.” TEX. GOV’T CODE § 24.002. Applicant asserts that no good cause exists to take
Applicant Carolyn James’ Motion to Recuse and Motion to Consolidate with Guardianship case 5
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 5 of 41
APPENDIX 8
action in the pending guardianship cases four years after the Court’s voluntary recusal.
Consequently, Judge Butts cannot rule in the pending guardianship cases.
16. Additionally, the probate court cannot bifurcate or sever multiple proceedings on the
application of a will to probate. See TEX. ESTATE CODE § 256.101 (previously Tex. Probate Code
§ 83(a)); see also Harkins v. Crews, 907 S.W.2d 51, 57 (Tex. App. – San Antonio 1995, writ denied)
(probate code favors the use of a single proceeding to determine validity of wills). Consequently,
the settlement of the guardianship and the probate of the Decedent’s Will should be in a single
probate court before one judge. Bifurcating the proceedings will lead to inconsistent rulings
regarding the same estate.
17. All of these cases involve the same parties and same issues. Carolyn James is still
the applicant. Richard Stephen Calkins is still the respondent. The question of whether the 2007
testamentary documents were obtained by undue influence and/or fraudulent inducement is still
present.
Personal opinion of Court offered without evidence.
18. During the hearing on July 15, 2015, Applicant sought emergency intervention to
obtain an autopsy of Decedent to substantiate the diagnosis refuted by Respondent for more than
seven years that Decedent suffered senile dementia, Alzheimer’s type. Under Texas law, Carolyn
James is entitled to request and obtain an autopsy to establish the cause of death. See TEX. CODE
OF CRIM. PROC. ART 49.13 (a)(2). In the midst of the July 15th hearing, the parties agreed to the
autopsy on the record. See Transcript of hearing, attached as Exhibit F.
19. Despite the Rule 11 Agreement, and the pending contest, Judge Butts declined to rule
on Applicant’s motion. Instead, she opined that she had no jurisdiction yet. See Exhibit F. Judge
Butts then opined that in her opinion, she did not think an autopsy should be performed. See id.
Applicant Carolyn James’ Motion to Recuse and Motion to Consolidate with Guardianship case 6
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 6 of 41
APPENDIX 8
Effectively, the Judge Butts refused to enforce the Rule 11 Agreement. Additionally, Applicant
asserts that this opinion is extra-judicial and gratuitous. Further, because the Court declined to hear
the dispute, the opinion was issued without any evidence.
Timely motion.
20. Applicant Carolyn James is obligated to raise this motion to recuse before the
Honorable Christine Butts rules on any motions in the probate case, or Applicant may waive her
objection.
21. This motion to recuse is timely and properly verified. See TEX. R. CIV. P. 18a. See
Verification of G. Wesley Urquhart, attached as Exhibit G. Applicant Carolyn James hereby
requests a hearing on her motion to recuse pursuant to TEX. R. CIV. P. 18a.
CONCLUSION.
22. In sum, Applicant CAROLYN JAMES respectfully asserts that a reasonable member of
the public at large, knowing all the facts in the public domain concerning the judge's conduct, would
have a reasonable doubt that the judge is actually impartial. Recusal is sought because there is a
reasonable question as to the Judge’s impartiality and the conduct of the Court reflects a personal
bias or prejudice against Applicant Carolyn James and/ or in favor of Carolyn James’ opponents in
this case.
23. In sum, Applicant Carolyn James respectfully requests that the Honorable Christine
Butts recuse herself from presiding over this matter on the grounds set forth in TEX. R. CIV. P. 18a
& 18b (2). Further, Applicant Carolyn James requests that the Honorable Christine Butts recuse
herself from presiding over any case involving Applicant Carolyn James for the same grounds.
24. In the alternative, should the Court not recuse itself, Applicant CAROLYN JAMES
respectfully requests that this motion be heard by the Hon. Olen Underwood, the presiding Judge
Applicant Carolyn James’ Motion to Recuse and Motion to Consolidate with Guardianship case 7
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 7 of 41
APPENDIX 8
of the Second Administrative Judicial Region of Texas charged with reviewing motions to recuse
for Harris County. TEX. R. CIV. P. 18a(c); see also TEX. GOV'T CODE ANN. § 74.059(c)(3); Brosseau
v. Ranzau, 911 S.W.2d at 892; In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 180 (Tex. App.
– Corpus Christi 1999, orig. proceeding).
Prayer.
WHEREFORE, PREMISES CONSIDERED, Applicant Carolyn James prays that this
Honorable Court set this matter for hearing, and after notice and hearing, the Court will grant this
motion to recuse, and further asks that it be granted such other and further relief, special or general,
legal or equitable, that Applicant Carolyn James is justly entitled to receive.
Respectfully submitted,
G. WESLEY URQUHART, P.C
/s/ G. Wesley Urquhart
By__________________
State Bar No. 20415575
P.O. Box 35520
Houston, Texas 77235-5520
Telephone: (713) 582-0803
Email: wes@wesjustice.com
ATTORNEY FOR APPLICANT
CAROLYN CALKINS JAMES
CERTIFICATE OF CONFERENCE
I hereby certify by that my office has contacted opposing counsel and counsel for
Respondent is opposed. Thus, judicial intervention is necessary.
/s/ G. Wesley Urquhart
By__________________
G. Wesley Urquhart
Applicant Carolyn James’ Motion to Recuse and Motion to Consolidate with Guardianship case 8
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 8 of 41
APPENDIX 8
CERTIFICATE OF SERVICE
I hereby certify by my signature below that a true and correct copy of the foregoing legal
document has been served on all parties and/or their attorneys of record in the above numbered and
captioned cause in accordance with Rule 21a, Texas Rules of Civil Procedure by certified mail,
return receipt requested, facsimile, or hand-delivery on this 29th day of July, 2015.
/s/ G. Wesley Urquhart
By__________________
G. Wesley Urquhart
SERVICE LIST
Mr. Joseph Libby
DYER & LIBBY
1305 Prairie St #100
Houston, Texas 77002
Telephone: (713) 222-7757
Facsimile: (713) 222-7758
josephlibbyattorney@yahoo.com
Counsel for Richard S. Calkins
Phillip Calkins Strauss,
200 Bohls Rd.
Wimberly, TX 78676
phillip.strauss@gmail.com
Pro Se
Applicant Carolyn James’ Motion to Recuse and Motion to Consolidate with Guardianship case 9
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 9 of 41
APPENDIX 8
rTTTr
DATA ENTRY
No. 378,993 PICKDPTHSDAfy
924225
IN RE: § PROBATE COURT
MARY OLIVE CALKINS, § NUMBER FOUR C0URT4
AN INCAPACITATED PERSON § HARRIS COUNTY, TEXAS
RECUSALORDER
On this day, theCourton its own motion finds that it is in thebestinterest of the
above-referenced cause of action for the Court to recuse herself, and the Court hereby
recuses herself from the above-referenced cause of action and all associated sub-
dockets, including 378,993-401, pursuant to Tex.Govt.Code §25.00255.
5^ IT ISTHEREFORE ORDERED that the Harris County Clerk shall randomly
D)
assign this case to a judge of one of the other Harris County Probate Courts pursuant to
9
N Section 4.3 of the LocalRules for the Probate Courts of Harris County as approved by
1
iV the Supreme Court of Texas on June 25,2007.
IT ISFURTHER ORDERED that judge Christine Buttswill take no further action-
in this cause.
N
Costs associated with this order are waived. $ ^ k.
Signed this // day of March, 2011.
CHristine
!lnnstine Butts,Judge
Butts, Judge
Harris County Probate Court No. 4
EXHIBIT
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 10 of 41
A
APPENDIX 8
PICK ITP Tim DATg
CAUSE NO. 378,993 probate couFrr4
908270
ESTATE OF IN THE PROBATE COURT
§
MARY OUVE CALKINS, § NUMBER ONE OF
§
AN INCAPACITATED PERSON HARRIS COUNTY, TEXAS
ORDER OF RECUSAL
On this the y^day of March, 2011 the Court, on its own motion recuses itself from the
above-referenced cause of action and all associated sub-dockets, including 378,993-401, pursuant
to Tex. Govt. Code § 25.00255.
• .1?
I IT IS THEREFORE ORDERED that this matter be randomly reassigned by the county
clerk to a judge of one of the other Harris County statutory probate courts pursuant to Tex.. Govt.
Code § 25.00255(gXl)(B).
IT IS FURTHER ORDERED thatall costs incident to this orderarelereby #live(L
SIGNED this day of March, 2011
CM
m
I
osz
LoydPWright
Judge, Probate Court No. One
RECORnER'S ?>!EVORANDUM;
At tho timo of focoici,3!:jii, iliir. i.nsirument was EXHIBIT
found to be ina'.:scu3l!.- for tho i>e.<5t pl;otograpl)ic
reprcductioii hecauao of iiiogibility, carbon or
pholo copy, discolored paper, etc. .''.Il blockouts,
additions and f.na.'.j;eswfro pra.sontat the time
tho instrument v.as filed and recorded.
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
B
Page 11 of 41
APPENDIX 8
La s 733009 No. 378,993 probate COURT #4
IN RE: § PROBATE COURT
MARY OLIVE CALKINS, § NUMBER FOUR
AN ADULT INCAPACITATED PERSON § HARRIS COUNTY, TEXAS
RECUSAL ORDER
On this day, the Court on its own motion finds that it is in the best interest of the
above-refereneed cause and all related litigation for the Court to recuse himself. It is
therefore
ORDERED that the Honorable William C. McCulloch recuses himself from
ai Cause No. 378,993 together with all subdockets, if any; and it is further
(I)
f) ORDERED that the Honorable William C. McCulloch will take no further action
in this cause except to refer this cause to the presiding statutory probate judge for the
M State of Texas.
Pursuant to Section25 of the Texas Governrr^il Cdlie^ the undersigned hereby
N.
requests that the presiding statutory probate judge for the State of Texas, the Honorable
Guy Herman, assign a statutory probate judge to preside in this cause.
Signed August ,2010.
vO
in
X
a
•>-
a
UJ
CM El William C. McCulloch, Judge
Harris County Probate Court No. 4
S
4
EXHIBIT
c
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 12 of 41
APPENDIX 8
I -J
illflrMnTrWJ
, ;XAT£C0UP[T#2
CAUSE NO. S9ap23
IN RE: IN THE PROBATE
MARY OLIVE CAULKINS COURT #2OF
HARRIS COUNTY, TEXAS
/• i
ORDER ON MOTION TO RECUSE
AFTER HEARING
I i On March 5,2009 came on to be heard, theMotion to Recuse filed pursuant to TRCP 18a
in the above captioned cause. The Court hasconsidered the Motion, all attachments thereto, and
o
all evidence presented, all citations of authority and arguments of counsel.
Therefore,IT IS ORDERED that the Motion to Recusebe and is hereby GRANTED.
IT IS FURTHER ORDERED that the Clerk of the Court shall forward a certified copy of
! ;f»
Ui this Order to;
'u Presiding Judge
Second Administrative Judicial Region of Texas
207 West Phillips, 3"* Floor .
Conroe, Texas 77301
Fax No. 409 538-8167
ui SIGNED this S" of March, 2009.
v.?
TKi
t 13
Ul f—
WECOROeR'SMeMORAWUM. m
i- 3P»
At tttfl iknToTrecoTdatlofi. iWs ^natrumenl . o
SLJdtolS KuSe ior tho b«st photo»ap«^
ottoto copy, Olscotored paper, etc. M
eddltions and ctianoes
\heinstninwnl Wed ^ere jwyt at
nsooraed t»me
EXHIBIT
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 13 of 41
D
APPENDIX 8
CAUSE NO. 275,123
DSfRE: § INTKEPROBATE
§
DICKaCAUIXINS § COURT #20F
TESTAMENTARYTRUSTS §
§ HARRIS COUNTY, TEXAS
ORDER ON MOTION TO RECUSE
AFTER HEARING
On March 5,2009 came on to be heard, the Motion to Recuse Bled pursuant to TRCP 18a
in die above cE^tLoned cause. TheCourthas considered the Motion, all attacbments theretio,.and
all evidencepresented, all citations ofauthorityand argumentsofconnsel.
Therefore, IT IS ORDERED that the Motion to Recuse be and is hereby GRANTED.
IT IS FURTHER ORDERED that the Clerk ofthe Court shall forward a ceatifiedcopy of
this Order to:
Presiding Judge
Second AdministrativeJudicialRegion ofTexas
207 West Philips, 3" Ploor
Conroc, Texas 77301
Fax No. 409 538-8167
SIOffiDaiiss" ofMatch, 2009.
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 14 of 41
APPENDIX 8
DATA BNTHY
Pick UP TH^S DATE RULES OF THE PROBATE COURTS
OF HARRIS COUNTY, TEXAS
RULE 1: OBJECTIVE
1.1 : •The objective ofthese rules is to establish procedural and administrative rules to
assist the courts^ litigants and attorneys to resolve pending cases in a fair, just and efficient
manner.
RULE 2: REPORTS AND NUMBERING SYSTEM
2.1 Reports. The County Clerk shall supply to each Probate Judge of Harris County,
on a monthly basis, information concerning the number of filings, dispositions, trials and other
judicial activities, including mental health proceedings, in each Hams County Probate Court
With the exception of the County Clerk's report, these rules to not apply to mental health
matters.
2.2 Case Numbering - New Matters. All new estate administrations, guardianships,
trust matters (including testamentary trusts when the underlying estate has been closed) that are
filed in the Probate Courts of Harris County shall be assigned to a court in accordance with
M Section 25.1034 of the Government Code. Bach case shall be assigned a docket number
M sequentially. All matters relating or appertaining to an estate or guardianship that has not been
S closed as provided in the Probate Code, including proceedings upon trusts created by a
^ decedent's will, shall remain in such court subject to an order of transfer as with any case, and
^ shall retain the original docket number with an appropriate sub-file number. Each subsequent
i matter filed involving the same decedent or proposed ward shall be filed in the original file,
under the same docket number and in the same court as the original filing. If wills are filed for
Y probate at the same time for a husband and wife, both cases shall be filed in the court in which
J the lowest numbered case is assigned. If adecedent's estate is filed in which the decedent was a
L ward of aHarris County probate court, the decedent's estate shall be filed in the court in which
^ the guardianship was pending.
2.3 Case Numbering - Closed Matters. All matters relating or appertaining to an
estate, trust, guardianship or other matter that has been closed shall remain in the original court
and shall retain the original docket number with an appropriate sub-file number as provided by
these rules. The Clerk shall retrieve the closed files and maintain them with the new matter until
the new matter is closed.
2.4 Sub-File Numbers. All matters relating to an estate or guardianship
administration shall have only the sequential docket number. All ancillary matters shall be
assigned the original docket number plus a suffix commencing with 4. For example, the Estate
of Mary Doe, Deceased, shall be assigned number 123,456. An ancillary matter shall be
assigned cause number 123,456-401. The Clerk shall maintain separate files for each sub-file
number.
2.5 Core Matters that belong in the principal file. Those matters that are principally
concerned with the administration of the estate are "core matters" and should be filed under the
main cause number:
^"exhibit
-1
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 15 of 41
e
APPENDIX 8
2.5.1 Probate of wills, issuance of letters testamentary, administration and
guardianship;
2.5.2 Determination of heirsliip;
2.5.3 Contest to will, heirship, administration (before and after the grant of
letters);
2.5.4 Contest or objection to actions during admimstration (sales, fees,
accounting, etc.)
2.5.5 Construction and interpretation of wills and testamentary trusts;
2.5.6 All claims pursuant to the claims-presentation process;
2.5.7 Removal of personal representative;
2.5.8 § 5B/§ 608 motions to transfer an ancillary case (but if thetransfer comes
in, it will go to an ancillary-case file);.
2.5.9 Heirship determination within an administration or guardianship;
2.5.10 Release of Independent Executor pursuant to § 149E, which may include
an action pursuantto C.P.R.C. Chapter37;
2.5.11 Heirship determination or declaratory judgment as part of a Muniment of
Title proceeding;
2.5.12 Testamentary Trust Actions involving court interpretation or construction
of the trust.
^ Any of the proceedings described as "core matters" may be severed as an ancillary
g proceeding at the Court's discretion.
M 2.6 Ancillarv Matters that belong in a different file with an ancillarv or related case
j designation. Those contested matters that bear no direct relationship to the administration of the
^ estate and that would have the possibility of becoming an independently-tried lawsuit (each
y& potentially with its own docket control and discovery schedules, etc.):
I 2.6.1 Foreclosure ofpreferred debt and lien;
J 2.6.2 Action for the trial oftitle toland and enforcement ofliens thereon;
M 2.6.3 Actions for the right oftrial to property;
gh 2.6.4 Testamentary Trust Actions (other than construction issues);
2.6.5 Intervivos Trust Actions (settlor is decedent in probate pending in subject
court);
2.6.6 Declaratory judgments (after the will is admitted to probate);
2.6.7 Interpleader actions (fundstenderedinto registry during adiniriistration);
2.6.8 Divorces, child custody, paternity actions
2.6.9 Claims such as personal injury claims or suits on a claim that was rejected
in its entirety or in part.
2.7 New Filings. Those matters which are within the jurisdiction of the probate court
but which are not part of a pending matter will be designated new files and assigned to a court
and given a cause number as in Rule 2.2. Examples include, by description and not by way of
limitation:
c=s
2.7.1 Intervivos Trust Action (where settlor is still living); J
2.7.2 Motion to appoint successor custodian; ^ 3j
2.7.3 Sale of a ward's interest in property; oo P"
3 5
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 16-of
2 -41 i 4r
APPENDIX 8
2.7.4 Testamentary trust actions (where the original probate is in another
jurisdiction).
2.8 Dunhcation. In the event a docket number has been previously assigned to an
estate, guardianship or trust matter, all matters shall be filed under such previously ^signed
number. When such a situation isdisclosed for the first time after a hearing begins, the judge of
the court presiding over the hearing shall terminate the hearing and order the case transferred to
the court in which the case first originated.
2.9 Clerk's Duties. The County Clerk ofHarris County shall file, docket, transfer and
assign cases as directed by these rules. Neither the admimstrative judge nor the Presiding Judge
may direct the County Clerk to do otherwise, except upon the consent ofthe majority of the
probatejudges in Harris County:
RULE NO. 3. ADMINISTRATIVE JUDGE
3.1 Administrative Judge. The local administrative statutory probate courtjudge (the
"administrative judge") shall be elected to serve for a term ofnot more than two years. The first
term ofthe administrative judge shall commence upon his or her election after the enactment of
these rules and the approval hereof by the Supreme Court. The administrative judge may not be
elected or appointed upon the basis of rotation or seniority, and may not succeed himself in
office.
3.2 Duties of Administrative Judge. The administrative judge shall have the
following duties and no other:
I
U)
3.2.1 Implement these local rules;
3.2.2 Recommend to the Presiding Judge of the Statutory Probate Courts any
J needs for assignment firom outside the county to dispose of court
L caseloads;
J 3.2.3 Provide to the office of court adniinistration or the Presiding Judge any
requested statistical and management information;
3.2.4 Coordinate and cooperate with any other local administrative court judge
in the county in the assignment of cases in tlie courts' concurrent
jurisdictionfor the efficient operation of the court system andthe effective
adrniiiistration ofjustice; and
3.2.5 Perform other duties as may be directed by the Presiding Judge with the
approval of a majority of the statutory probate judges of Harris County.
RULE NO. 4: CASE TRANSFERS
4.1. Transfers. All case transfers between probate courts in Flarris County shall be
done on the written order of the transferringand receiving courts. It sliall be the responsibility of
the attomey representing the party desiring a transfer to obtain the agreement of the judges of the
courts firom which the transfer is sought and to which the case will be transferred.
4.2. Prior Filings. Any matter filed after a non-suit, dismissal for want of prosecution,
or other disposition of a previous case involving the same decedent, proposed ward, or
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 17-3
of 41
APPENDIX 8
substantiEilly related parties and claims shall be assigned by the administrative judge to the court
where the prior matter was pending.
4.3. Recusal and Disn. If a judge voluntarily recuses himself, or if a
motion to recusal or disqualification is granted by any judge, the case shall be re-assigned by the
Harris County Clerkby random assignment to another Hams County probate court.
RULE 5: CONFLICTING TRIAL SETTINGS
5.1 Inter-Countv. The Regional Rules of Administration of the Second
Administrative Judicial Region of Texas and the Civil Trial Division of the Hams County
District Courts shall control conflicting engagements in die event of a conflicting trial setting as
to parties and lead counsel in the probate courts. When a party or lead counsel is previously
assigned to a trialin a different court, a matter thatis subsequently assigned to trial in theprobate
court shall be heldin abeyance butwill proceed to trial as soon aspractical after theparty orlead
counsel ceases to be engaged in the prior proceeding. The lead counsel shall notify the probate
court immediately of his or her availability.
5.2 Intra-Countv. Among the trial courts sitting in Harris County, including the
probate courts:
(A) Trial/Non-Trial. Trial settingstake precedence over conflictingnon-trial
settings.
fi!
(B) Trial/Trial. A trial setting that is assigned takes precedence over a conflicting
I trial setting that is not assigned.
iii 5.3 Waiver. The court vrith precedence may yield.
5.4 Lead Counsel. This rule operates only when lead counsel, as defined by Rule 8,
Texas Rules of Civil Procedure, is affected unless the court expands coverage to other counsel.
RULE 6: VACATIONS
6.1 Vacations. Attorneys will be allowed the same vacations as provided by the
Rules of the Civil Trial Division of the Harris County District Courts. Vacation notices properly
and timely filed for lead counsel with the District Clerk of Harris County will be honored. This
rule operates only when lead counsel, as defined by Rule 8, Texas Rules of Civil Procedure, is
affected, unless the court expands coverageto other counsel.
RULE 7: DISMISSAL DOCKETS
7.1 Want of Prosecution. All contested cases which are not set for trial and which
have been on file for more than three (3) years are subject to dismissal. Upon request of the
court, the Court staff shall furnish notice to all parties and their counsel tliat any contested case
will be dismissed for want of prosecution pursuant to the provisions of Rule 165a of the Texas
Rules of Civil Procedure. The procedures for notice of dismissal and retention shall be in
compliance with Rules 165a and 306a ofthe Texas Rules of Civil Procedure.
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 18-4
of 41
APPENDIX 8
RULE 8: ANCILLARY AND/OR EMERGENCY PROCEEDINGS
8.1 F.mftrp^ftncv PrnReedinps. All proceedings for restraining orders, teniporary
injunctions, writs of habeas corpus, receiverships, temporary administrations, temporary
guardianships, small estates, or matters involving the payment of small claims without
guardianships pursuant to Sections 133 through 137 ofthe Texas Probate Code, and proceedings
for the examination and delivery of the contents of safe deposit boxes or any papers of the
decedent pursuant to Sections 36B and through 36F ofthe Texas Probate Code will be heard by
the judge ofthe probate court to which the matter has been assigned and docketed, or ifthe judge
ofthe court to which the matter is assigned and docketed is not available, then by any available
probate court in Harris County. If such emergency proceeding is a new matter, it will first be
assigned a case number and court as provided in Rule 2, and may be heard by any available
probate judge if thejudge of theassigned court is not available.
RULE 9: SUBSTITUTION OR WITHDRAWAL OF COUNSEL
9.1 Motions to Withdraw or Substitute Counsel. All motions for "withdrawal and/or
substitution of counsel shall conform to the provisions of Rule 10, Texas Rules of Civil
Procedure.
RULE 10: MOTIONS
S 10.1 Form. Motions and applications shall be in writing on letter sized paper and shall
I be accompanied by a proposed order granting the relief sought. The proposed order shall be a
^ separate instrument but may be attached to the back ofthe motion or application.
H) 10.2 Responses. All responses shall be in writing and shall be accompanied by a
proposed "written order. The proposed order shall be a separate instrument but may be attached
to the back of the motion or application.
10.3 LSuhmi.ssinn. Motions and applications may be heai'd by written submission. All
uncontested motions and applications (except applications for probate of will, for appointment of
administrator, and for appointment ofguarian) shall be heard by written submission, unless the
court directs otherwise. While a case is on submission and remains undecided for 30 days or
more any party may request and obtain an oral hearing before the Court.
10.4 Oral Hearings. Settings for imcontested hearings on applications for
administration, muniments of title, guardianships and heirships shall be requested firom the staff
of the court or the County Clerk. Settings for oral hearings on all other matters should be
requested firom the staff of the applicable court. Notices of hearings shall include the date, time
and identity of the court. An order tendered to the court after a contested hearing shall be
approved as to form by counsel for all parties present at the hearing.
10.5 Certificates. All certificates required by the Texas Rules of Ci"vil Procedure are
required in all contested matters before the probate courts.
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 19-5-
of 41
APPENDIX 8
RULE 11: TRIALS
1i.1 APR. Except for good cause shown, only cases that have undergone apreviously
ordered ADRprocedure will be tried.
11.2 Manner of Setting. All trials may be set by any party, lead counsel, or the court,
by requesting adocket setting or scheduling conference from the proper personnel ofthe court in
which the matter is pending and serving notice of the date and time of such scheduling
conference upon all opposing parties or their lead counsel. At the scheduling conference, the
court shall hear announcements from the parties and shall assign a date and time for trial ofthe
matter on its merits and may enter a docket control orderor scheduling order.
11.3 Date of Setting. Contested cases shall be set for trial for a date certain. More
than one case may be set for the same time or day and, if so, the cases will be heard indie order
established by court. If a case is not assigned to trial within 10 days ofits setting date, the court
shall conduct another scheduling conference, set a new trial date, or sign a new docket control
order.
11.4 Agreed Continuances. Any trial setting may be continued by written agreement
of all parties or their lead counsel, withthe approval of the court.
11.5 Assigned to Trial. A case is assigned to trial when counsel are called to court to
commence trial on the merits of the case. For purposes of engaged counsel, no court may have
more than one case assigned to trial at any one time.
N
11.6 Dead Weeks. Except witli the consent of all parties, no courtwill assign cases to
trial on the merits, or set oral hearings on motions, during:
y)
t 11.6.1 The week ofthe spring stateor regional judicial conference;
11.6.2 The week of the State Bar Convention;
11.6.3 The week of the Conference of the Judicial Section of the State Bar of
^ Texas;
11.6.4 Any December week or weeks in which the Monday of that week begins
with the dates December 22-31.
RULE 12: APPOINTEES
12.1 AppointeeDefined. An appointee, for purposes of the Supreme Court order
effective April 1,1994 is a person chosen by the judge who takes his or her position by virtue of
an order signed by the judge. An appointee does not include an attorney hired by a personal
representative or guardian whose fees must be approved by the court pursuant to the probate
code.
12.2 Appointee Fee Order. Each person appointed by a judge of a probate court to a
position for which any lype of fee may be paid shall be paid pursuant to a separate order before
any judgment, dismissal or nonsuit is signed by the court. This order is required for every
appointment wherein a fee is awarded of Five Hundred Dollars ($500.00) or more. The title of
an appointee fee order shall include the word "Appointee".
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 20-6-
of 41
APPENDIX 8
ADOPTED on the L dayCourt
upon the approval by the Supreme of ofthe State ofTexas^ksuant.to
and ORDEKEET^raCTIVE
T.R.CJP"j^/
rSSELL AUSTIN, Judge
Probate Court No. 1
Harris County, Texas
MIKE WOOD, Judge
Probate Court No. 2
Harris County, Texas
RORY Ol^EN, Jujige
ProMte ^urt No. 3
Harns County, Texas
WILLIAM C. McCULLOCH, Judge
Probate Court No. 4
Harris County, Texas
I
RECORDER'S MEMORANDUIt&r
At the time of recordation. thia instrument
faind to be madeqtotefwthf bestphokKjiapfilc
reprodudion because cf ihecitilir/, c&rbon or
photo copy, (liscdorec! pape;,' stc.All olockoute
additions and changes v/eie present at the fime
the instrument was filed and lecofded
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 21-7-
of 41
APPENDIX 8
1
REPORTER'S RECORD
2 VOLUME 1 OF 1
3 TRIAL COURT CAUSE NO. 441.165
4 APPELLATE NO.
THE ESTATE OF:
) IN THE PROBATE COURT
MARY OLIVE HULL CALKINS, ) NUMBER 4 (FOUR) OF
DECEASED ) HARRIS COUNTY, TEXAS
* * * ***********
10
11 MOTION FOR EMERGENCY INTERVENTION TO
12 COMPEL RELEASE OF DECEDENT'S BODY FOR AUTOPSY
**************
13
14
15
16
17 On the 15th day of July, 2015, the following
18 proceedings came to be heard in the above-entitled and
19 numbered cause before the Honorable Christine Butts
20 Judge of Probate Court No. 4, held in Houston, Harris
21 County, Texas:
EXHIBIT
22
_F_
23
24 Proceedings reported by Machine Shorthand
25
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
HIPOLITA G. LOPEZ, Page 22 of 41
CERTIFIED SHORTHAND REPORTER
APPENDIX 8
A-P-P-E-A-R-A-N-C-E-S:
Mr. G. Wesley Urquhart Mr. Joseph Libby
Attorney at Law Attorney at Law
SEN 20415575 SEN 12318500
G. Wesley Urquhart, P.C Mr. James Dyer
314 N. Post Oak Ln. Attorney at Law
Houston, Texas 77024 SEN 06315700
713.661.5590 DYER & LIEEY
1305 Prairie Street
Suite 100
Houston, Texas 77002
713 .222.7757
ATTORNEY FOR APPLICANT, ATTORNEYS FOR
CAROLYN CALKINS JAMES RICHARD CALKINS
Mr. Kenneth A. Zimmern
10 Attorney at Law
SEN 22276880
11 Zimmern Law Firm
3700 Montrose Elvd.
12 Houston, Texas 77006
713.529.4999
13
CO COUNSEL FOR APPLICANT,
14 CAROLYN CALKINS JAMES
15
16
17
18
19
20
21
22
23
24
25
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
HIPOLITA G. LOPEZ, Page 23 CERTIFIED
of 41 SHORTHAND REPORTER
APPENDIX 8
1 VOLUME 1
(MOTION FOR EMERGENCY INTERVENTION TO
2 COMPEL RELEASE OF DECEDENT'S BODY FOR AUTOPSY)
3 July 15, 2015 Page Vol
4 PROCEEDINGS 4 1
5 ARGUMENT BY MR. URQUHART 8 1
6 ARGUMENT BY MR. LIBBY 9 1
7 COURT'S RULING 13 1
8 COURT REPORTER'S CERTIFICATE 16 1
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
HIPOLITA G. LOPEZ, Page 24 CERTIFIED
of 41 SHORTHAND REPORTER
APPENDIX 8
1 July 15, 2015
2 PROCEEDINGS
3 THE COURT: Good afternoon. Please be
4 seated.
5 Calling to order Cause Number 441.165, In
6 The Estate of Mary Olive Hull Calkins.
7 We're here on a Motion For Emergency
8 Intervention To Compel The Release of The Decedent's
9 Body For Autopsy. And this was filed by Applicant
10 Carolyn Calkins James.
11 We have a lot of attorneys, it looks like,
12 in the courtroom; and so if we could start here and make
13 announcements - that will make it easier, I think, for
14 everyone.
15 MR. J. URQUHART: Your Honor, John
16 Urquhart, and I'm not attorney of record in this case -
17 I'm just helping out. I'm not making an appearance.
18 THE COURT: Okay.
19 MR. W. URQUHART: Your Honor, my name is
20 Wes Urquhart. John -- Attorney John Urquhart
21 is my son; he's observing.
22 THE COURT: Okay.
23 MR. W. URQUHART: And I represent Carolyn
24 Calkins James.
25 THE COURT: Thank you.
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
HIPOLITA G. LOPEZ, Page 25 CERTIFIED
of 41 SHORTHAND REPORTER
APPENDIX 8
1 MR. ZIMMERN: I'm not appearing, Your
2 Honor; do you wish me to make a statement? I won't be
3 commenting or speaking at the hearing today.
4 Okay. My name is Ken Zimmern, and I'm not
5 making an appearance; I'm here just to assist
6 co-counsel.
7 THE COURT: Okay.
8 MR. ZIMMERN: Mr. Urquhart.
9 THE COURT: Okay. Thank you.
10 MR. ZIMMERN: He is counsel of record.
11 MR. LIBBY: Good afternoon. Your Honor,
12 I'm Joseph Libby; I'm with the firm of Dyer-Libby.
13 You're looking at the whole firm. We're here on behalf
14 of Richard Calkins.
15 THE COURT: Okay. Terrific. So, Mr.
16 Libby and Mr. Dyer?
17 MR. DYER: Dyer, D-Y-E-R.
18 THE COURT: Okay. Thank you. L-I-B-B-Y?
19 MR. LIBBY: Yes, Your Honor.
20 THE COURT: And D-Y-E-R?
21 MR. DYER: Yes, Your Honor.
22 THE COURT: Okay. Great. Thank you.
23 Alrighty. And you guys represent Richard
24 Calkins?
25 MR. LIBBY: Richard Calkins.
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
HIPOLITA G. LOPEZ, Page 26CERTIFIED
of 41 SHORTHAND REPORTER
APPENDIX 8
1 THE COURT: Okay. Well any time you're
2 ready, Mr. Urquhart:
3 MR. URQUHART: Yes, Your Honor - thank
4 you.
5 Let me raise up one thing that Counsel was
6 kind enough to point out.
7 There is a heated, disputed guardianship
8 case involving the decedent, Carolyn James' mother and
9 Richard Calkins' mother. And there were a number of
10 recusals in that case, a number of transfers of court.
11 And Your Honor did recuse herself from the guardianship
12 case on your own motion at one point in time. The
13 guardianship case was not in your court very long. But
14 you did recuse yourself. And Counsel commented or
15 reminded us of that. I didn't remember that until
16 Counsel reminded me of it. And he said he thought we
17 ought -- you ought to be informed that you had recused
18 yourself.
19 I don't have a problem with the Court
20 presiding over the probate case not withstanding the
21 recusal of the guardianship case, but there are
22 different lawyers involved now for Mr. Calkins than were
23 at the time.
24 THE COURT: And that was my issue - was
25 the lawyers involved who represented Mr. Calkins. So,
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
HIPOLITA G. LOPEZ, Page 27 CERTIFIED
of 41 SHORTHAND REPORTER
APPENDIX 8
1 if that's not an issue anymore/ I don't know that I need
2 to recuse myself.
3 . MR. URQHUART: I agree. And I don't -- my
4 position is Your Honor does not make a recusal of
5 herself. And I think Mr. Libby doesn't have a position
6 on that either, but I ' l l let him speak to that.
7 THE COURT: Okay.
8 MR. LIBBY: Your Honor, I chose only to
9 remind Your Honor. I didn't think i t would be fair with
10 all the questions you had. And this was a contentious
11 case. I know that several other judges recused
12 themselves as well. And I'm very late in this. I
13 wasn't in any of the previous litigation, and I thought
14 it only wise to point out that you had, on your own
15 notion, recused yourself so that I thought was a matter
16 of conscience with you. And if your conscience approves
17 then we'll proceed. It's on you. Judge Butts.
18 THE COURT: Okay. Well I don't see a
19 reason to recuse myself. I had worked -- Ms. Norman was
20 on the case previously, and that was the reason I
21 recused myself because I had some previous dealings with
22 her, and I felt like that -- I just felt like it was
23 appropriate for me to recuse myself.
24 MR. URQHUART: If we're over that then
25 I ' l l go forward, Judge, if you're ready.
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
HIPOLITA G. LOPEZ, Page 28CERTIFIED
of 41 SHORTHAND REPORTER
APPENDIX 8
8
1 THE COURT; Did I hear you say Ms. Norman
2 is still involved?
3 MR. DYER: I don't know how -- oh, I'm
4 sorry.
5 MR. LIBBY: We've had so many discussions
6 with her recently trying to catch up the last two days.
7 You know, we've only had a few days. The Deceased just
8 past way just this last week. So, we hurried up to try
9 and find out what we could about the case; and of
10 course, the best source of information was from Ms.
11 Norman which she's not associated with our firm or been
12 employed by my client, Richard, to represent her in this
13 matter.
14 THE COURT: Okay. Very good.
15 MR. LIBBY: I'm sure there's ongoing
16 matters that she has with Richard, but I don't --
17 nothing to do with us.
18 THE,COURT: Okay. Well at this point, I
19 feel safe proceeding.
20 MR. URQHUART: Well, Your Honor, may I go
21 forward now?
22 THE COURT: Certainly.
23 ARGUMENT BY MR. UROUHART:
24 MR. URQHUART: Your Honor, an issue in
25 this case, in the guardianship case, and in this case is
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
HIPOLITA G. LOPEZ, Page 29CERTIFIED
of 41 SHORTHAND REPORTER
APPENDIX 8
1 Decedent, Mrs. Calkins', illness in 2006, she was
2 diagnosed with senile... what's it called? Dementia and
3 Alzheimer's. And she -- there was a dispute in the
4 guardianship case. Mr. Calkins disputed the finding
5 that his mother was incapacitated because of
6 Alzheimer's.
7 ARGUMENT BY MR. LIBBY;
8 MR. LIBBY: Your Honor, may I interrupt?
9 I think that I could save a lot of the Court's time by
10 sifting a lot of Counsel's well-recent argument that by
11 telling the Court that we really do not object to having
12 an autopsy. We don't feel like there's any reason why
13 we should object. We're in favor of an onset -- an
14 autopsy. It's --
15 MR. URQUHART: That's a new development
16 because the funeral home that Mrs. Calkins was at was
17 told -- told me that Mr. Calkins did object to releasing
18 the body for an autopsy. And the pathologist. Dr. --
19 MR. LIBBY: Judge, this is just hearsay;
20 i t ' s not argument --
21 THE COURT: Well if you both agree --
22 MR. URQHUART: Excuse me. Judge, the
23 pathologist. Dr. Adamay (sic)... What's his first name?
24 Is it on here?
25 MR. ZIMMERN: Jessie.
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
HIPOLITA G. LOPEZ, Page 30 CERTIFIED
of 41 SHORTHAND REPORTER
APPENDIX 8
10
1 MR. URQUHART: Dr. Jessie Adamay was
2 recommended to us by the Harris County Office, and he is
3 a board certified pathologist that Carolyn James, my
4 client, has already paid to perform the autopsy. And
5 right now the funeral home that has Mrs. Calkins will
6 not do anything and agreed not to do anything and keep
7 Mrs. Calkins until we get a court order on the funeral
8 home. And the reason -- on the autopsy. The reason we
9 need the autopsy is because Mrs. Calkins was diagnosed
10 with Alzheimer's. Mr. Calkins contested the
11 guardianship case for a number of four years, and it
12 never got resolved.
13 There were, I think, 10 recusals of judges
14 in that case. There was no judge assigned to the
15 guardianship case for the last year and a half,
16 approximately. Over a year. So, with the death and the
17 filing of this case, we now have a judge, and we need an
18 autopsy so it can produce evidence of the status and
19 condition of Mrs. Calkins' brain, principally, along
20 with her medical records and opinions of the doctors for
21 evidence to show that -- to prove that she was
22 incapacitated in the past. There is more than one will.
23 There's a dispute.
24 THE COURT: Well I'm -- so, Mr. Libby, do
25 I understand you correctly that you guys do not --
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
HIPOLITA G. LOPEZ, Page 31 CERTIFIED
of 41 SHORTHAND REPORTER
APPENDIX 8
11
1 MR. LIBBY: We do not.
2 THE COURT: You're fine with the autopsy?
3 MR. LIBBY: We're just worried about
4 the - -
5 THE COURT: The particular pathologist --
6 MR. LIBBY: We were wondering if you might
7 have a suggestion, that way to assure our client that
8 somebody just didn't pick one out of the sky. We see he
9 looks like a very qualified person, but we feel very
10 much more comfortable if we didn't have to pay for it or
11 at least we don't think we should have to pay and the
12 Court --
13 MR. URQHUART: Your Honor, my client has
14 already paid Dr. Adamay to perform the autopsy, and he's
15 well qualified. We didn't pick him. He was referred to
16 us by the Harris County Medical Examiner's Office.
17 Never had him as any kind of witness ever, and we
18 believe that he's independent and his autopsy will be
19 independent.
20 MR. LIBBY: I have no problem with any of
21 that. Your Honor, except to say that when I called the
22 Harris County Medical Examiner's Office, they refused to
23 give me a recommendation and said that that wasn't
24 their -- that would not be appropriate. So, I have
25 different information.
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
HIPOLITA G. LOPEZ, Page 32 CERTIFIED
of 41 SHORTHAND REPORTER
APPENDIX 8
12
1 But we were just hoping that you might
2 appoint somebody; otherwise, we'd like them to pay for
3 it.
4 THE COURT: I think i t be -- I don't know
5 anyone, and I wouldn't know who to appoint. And
6 honestly, I think that it's -- I probably would not
7 order an autopsy on this poor 93 year-old woman who has
8 been, you know, the pawn in a guardianship proceeding
9 for a long time. I think it's just, to be honest, I
10 think i t ' s -- she's finally gone. She should be allowed
11 to rest. I personally don't think that gathering
12 evidence to prove that she was demented for the purpose
13 of dividing up her estate is worth the --
14 MR. URQUHART: Well, Judge, if I may.
15 There's a will contest.
16 THE COURT: I know that. But there is a
17 lot of evidence out there as to her incapacity aside
18 from a pathology report. And there's no -- it's
19 distasteful, in my opinion, beyond distasteful, to think
20 that we're going to carve this woman up for purposes of
21 discovering evidence that she was incapacitated just so
22 that the children can prove that they deserve more money
23 from the estate. And I think that's disgraceful, to be
24 honest.
25 MR. URQHUART: Well, unfortunately, I
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
HIPOLITA G. LOPEZ, Page 33 CERTIFIED
of 41 SHORTHAND REPORTER
APPENDIX 8
13_
1 believe that all of the assets in the estate, except for
2 her home, has already been stolen from the estate.
3 So --
4 THE COURT: I think the poor woman should
5 be allowed to rest. And if you guys want to do an
6 autopsy, I don't want to be a part of it. So, if you
7 guys want to enter into a Rule 11 --
8 MR. URQUHART: They don't oppose the
9 motion for autopsy, and I --
10 MR. LIBBY: We agree with the judge. We
11 think -- we thank you for the ruling, and I ' l l draw an
12 order to that effect if you so approve.
13 COURT'S RULING
14 THE COURT: I don't think I have the
15 jurisdiction to order either way because we don't have
16 an estate opened, number one. I don't really think
17 that's a ruling, and I didn't really couch it in that
18 way; I was just giving you my personal opinion on the
19 matter. And even if -- I'm saying that was my personal
20 opinion, but I don't think I have jurisdiction because
21 this is not a matter t h a t ' s incident to and related to
22 an estate at this point. We don't have an
23 administration open. And the proper way to proceed in
24 this matter is for someone to seek a temporary
25 administration and then the administrator would
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
HIPOLITA G. LOPEZ, Page 34CERTIFIED
of 41 SHORTHAND REPORTER
APPENDIX 8 14
1 automatically have the power to seek an autopsy, I
2 believe.
3 Now they would be well advised to get a
4 court order to back them up for that, yes; but I'm just
5 telling you now that my personal opinion is that this
6 poor woman should be allowed to rest in peace.
7 MR. URQHUART: Your Honor, I think
8 preservation of evidence is important in any case, and
9 an autopsy is only to preserve evidence.
10 THE COURT: Well I don't have any showing.
11 There was no -- nothing that I saw in the pleading that
12 indicates that this evidence couldn't be gathered in
13 another way or that the evidence -- how, how is her
14 condition today, or on July 8th, going to relate back to
15 her estate planning of 2007? That's --
16 MR. URQHUART: That's a -- I think that's
17 a function of the pathologist to see if he finds
18 evidence of how long.
19 THE COURT: But we have many reports about
20 her -- she was getting evaluated all the time during --
21 MR. URQUHART: Actually, she wasn't. Your
22 Honor.
23 THE COURT: Well she's got -- she had many
24 mental status exams starting back in, I think, 2001 or
25 2003. She started getting these status examinations.
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
HIPOLITA G. LOPEZ, Page 35CERTIFIED
of 41 SHORTHAND REPORTER
APPENDIX 8 15
1 And I think that there's a lot of evidence that can be
2 gathered by that. I just -- I'm giving you my personal
3 opinion about -- I'm just telling you how I feel about
4 it. But I don't think I have jurisdiction any way to
5 rule today.
6 MR. LIBBY: Thank you, Your Honor.
7 THE COURT: Thank you.
8
9 *****
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
HIPOLITA G. LOPEZ, Page 36CERTIFIED
of 41 SHORTHAND REPORTER
APPENDIX 8
16
1 The State of Texas )
2 County of Harris )
3
4 I, Hipolita Lopez, Official Court Reporter in and
5 for the Probate Court Number Four of Harris County,
6 State of Texas, do hereby certify that the above and
7 foregoing contains a true and correct transcription of
8 all portions of evidence and other proceedings requested
9 in writing by counsel for the parties to be included in
10 this volume of the Reporter's Record, in the
11 above-styled and numbered cause, all of which occurred
12 in open court or in chambers and were reported by me.
13 I further certify that this Reporter's Record
14 truly and correctly reflects the exhibits, if any,
15 admitted by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $100.00
18 and will be paid by G. Weslev Urauhart P.C.
19 WITNESS MY OFFICIAL HAND this the 27th day of
20 July, 2015.
21
/s/ Hipolita G. Lopez
22 HIPOLITA G. LOPEZ, Texas CSR #6298
Expiration Date: 12-31-16
23 Official Court Reporter
Probate Court Number Four
24 Harris County, Texas
201 Caroline, 7th Fl.
25 Houston, Texas 77002
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
HIPOLITA G. LOPEZ, Page 37CERTIFIED
of 41 SHORTHAND REPORTER
APPENDIX 8
VERIFICATION
THE STATE OF TEXAS §
§
COUNTY OF HARRIS §
BEFORE ME, on this day did personally appear G. Wesley
Urquhart, who, being known to me through personal knowledge, and his
driver's license or other identification card, to be the person who
did depose and state as follows:
1. My name is G. Wesley Urquhart. I am over the age of
eighteen (18) years. I am fully competent to make this affidavit.
I am of sound mind, and I have personal knowledge of the facts
stated herein and they are true and correct.
2. I am counsel for the Applicant in the cause of action
styled Cause No. 441,165; In re Mary Olive Hull Calkins, Decedent;
in Probate Court No. Four of Harris County, Texas. I have read
Applicant's Motion to Recuse the Honorable Christine Butts as
presiding judge of Cause No. 441,165 and Motion to Consolidate, to
which this verification is attached, and the facts recited therein
are within my personal knowledge, and they are true and correct.
FURTHER AFFIANT SAYETH NOT
Wesley
SUBSCRIBED AND SWORN TO BEFORE ME, on this the 29^ day of July
2015, to certify which witness my hand and official seal of office.
ANACONTRERAS
Y\ MY COMMISSION EXPIRES
j/UL vPijJlAlAnzi
NOTARY PUBLIC IN AND FOR
Januaiy9,2017
THE STATE OF T E X A S
EXHIBIT
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 38 of 41
APPENDIX 8
CAUSE NO. 441,165
IN THE ESTATE OF § IN PROBATE COURT
§
MARY OLIVE HULL CALKINS, § NUMBER FOUR OF
§
DECEASED § HARRIS COUNTY, TEXAS
ORDER GRANTING APPLICANT’S MOTION TO RECUSE
Came onto be heard, the Applicant Carolyn Calkins James’s Motion to Recuse the Honorable
Christine Butts as presiding judge over Cause No. 441,165 in Probate Court Number Four. Having
considered the motions, the response, and the arguments of counsel, the Court is of the opinion that
the Applicant Carolyn James’ Motion to Recuse should be GRANTED. It is therefore,
ORDERED, ADJUDGED and DECREED that the Applicant Carolyn Calkins James’s
Motion to Recuse the Honorable Christine Butts as presiding judge over Cause No. 441,165 in
Probate Court Number Four, and in any other case involving Carolyn James is GRANTED. This
Court finds good cause for this recusal. It is further,
ORDERED, ADJUDGED and DECREED that the Applicant Carolyn Calkins James’ Motion
to Consolidate is also GRANTED. Cause No. 441,165 shall be consolidated with Cause Nos.
378,993, 378,993-401, 275,123, and 275,123-401.
SIGNED and ENTERED this _____ day of _______________________, 2015.
JUDGE PRESIDING
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 39 of 41
APPENDIX 8
APPROVED AS TO FORM and CONTENT:
G. WESLEY URQUHART, P.C
/s/ G. Wesley Urquhart
By__________________
State Bar No. 20415575
P.O. Box 35520
Houston, Texas 77235-5520
Telephone: (713) 582-0803
Email: wes@wesjustice.com
ATTORNEY FOR APPLICANT
CAROLYN CALKINS JAMES
Applicant Carolyn James’ Motion to Recuse and Motion to Consolidate with Guardianship case 11
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 40 of 41
APPENDIX 8
Appendix 8, Ms. James Motion Recuse Hon Butts and Consolidate
Page 41 of 41
-- -- ··--------------
APPENDIX 8.1
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\.,.' CAUSE NO. 441,165
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IN THE ESTATE OF § IN PROBATE COURT
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MARY OLIVE HULL CALKINS, § NUMBER FOUR OF
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~'J DECEASED § HARRIS COUNTY, TEXAS
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\,(\ ORDER GRANTING APPLICANT'S MOTION TO RECUSE
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C:'J Came onto be heard, the Applicant Carolyn Calkins James's Motion to Recuse the Honorable
·"'
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o:; Christine Butts as presiding judge over Cause No. 441,165 in Probate Court Number Four. Having
',,)
considered the motions, the response, and the arguments of counsel, the Court is of the opinion that
the Applicant Carolyn James~ Motion to Recuse should be GRANTED. It is therefore,
i. -.
ORDERED, ADJUDGED and DECREED that the Applicant Carolyn Calkins James's
Motion to Recuse the Honorable Christine Butts as presiding judge over Cause No. 441,165 in
Probate Court Number Four, and in any other case involving Carolyn James is GRANTED. This
Court finds good cause for this recusal. .lt. is fv"ller,
OR OlilR ED 0
P R !DO£D and DECRf:Bfl !hal !l • nliieaet Garei~'B Gall@Hs .JaHuJs' Ugti9JI
te Comoiidale is also GJ:bAt~lTBD. Cauie No 441 ,1`` sllaU ee eaasglidated witb Cam·e N~.
378,993, 37~,993-401, n3,1:!3, and 27$,12.~ 49+.
SIGNED and ENTERED this _3Q_ day of--"~t!"=f'-------' 2015.
~fk;;;-
.:l' JUDGE PRESIDING
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Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 10/30/2015
Stan Stanart, County Clerk
Harris County, Texas Appendix 8.1, Hon. Butts Re-Recusal
At James' Request
Page 1 of 2
APPENDIX 8.1
0 Q
APPROVED AS TO FORM and CONTENT:
G. WESLEY URQUHART, P.C
Is/ G. Wesley Urquhart
By
Sta-,te-:-B::ar--::N-:-o-.-:-2704-:-:1:-::5-:-5:::75-::-
P.O. Box 35520
Houston, Texas 77235-5520
Telephone: (713) 582-0803
Email: wes@wesjustice.com
ATTORNEY FOR APPLICANT
CAROLYN CALKlNS JAMES
t
If
Applicanl Carolyn James' Motion lo Recu3e and Molion 10 Conso!ida!e with Guardianship eliSe 11 \
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------------------------------------------------
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 10/30/2015
Stan Stanart, County Clerk
Harris County, Texas Appendix 8.1, Hon. Butts Re-Recusal
At James' Request
Page 2 of 2
APPENDIX 7
Appendix 6, Hon. Sebesta Voluntary Recusal
From All Calkins Cases
Page 1 of 1
APPENDIX 6
Certified Document Number: 54896009 - Page 1 of 1
Appendix 6, Hon. Weiman Order Dismiss James Case
Due Lack Standing & Lack of Capacity
Page 1 of 2
APPENDIX 6
I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this March 1, 2013
Certified Document Number: 54896009 Total Pages: 1
Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS
Appendix 6, Hon. Weiman Order Dismiss James Case
Due Lack Standing & Lack of Capacity
In accordance with Texas Government Code 406.013 electronically
Page 2 of 2 transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
B9/B9/2Bl5 11:38 5128544418
APPENDIX 11
PAGE B3/B3
Presiding Statutory Probate Judge
of the
State of Texas
MINUTE ORDER 2015-065
After the recusai ofJudge Christine Butts ofHarris County Probate Court No. 4 in
Cause number 44 I, I 65, styled as In the Estate ofMary Olive Hull Calkins, Deceased,
the Harris County Probate Clerk requested that the undersigned Presiding Judge of the
Statutory Probate Courts of Texas assign a Judge to hear the above-referenced case.
~1
Pursuant to the provisions ofHarris County Probate Courts' Local Rules 2.2 & 2.5
and Section 25.0022 of the Texas Government Code, I, as Presiding Judge of the
Statutory Probate Courts of Texas, hereby order the Harris County Clerk to transfer
the above-styled matter to Probate Court No.2 of Harris County.
Costs, if any, for this filing are hereby waived.
SIGNED this 8th day of September, 2015.
an, Presiding Judge
Probate Courts of Texas
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Confidential information may have been redacted from the d ocument in compliance with the Public Information Act.
A Certified Copy Appendix 11, Judge Herman Order Transfer to Probate Court 2
Attest: 11/2/2015 Page 1 of 1
Stan Stanart, County Clerk
. Harris County, Texas
APPENDIX 16
Appendix 16, Order Denying Motion to Recuse and Disqualify
Page 1 of 1
APPENDIX 14
<.~·~·
Presiding Statutory Probate Judgep``~B.4TE COURT
2
of the
State of Texas
MINUTE ORDER 2015-070
Pursuant to Government Code § 25.00255, the Honorable Mike Wood forwarded
to the undersigned Presiding Statutory Probate Judge a Motion to Recuse and/or
Disqualification of Judge Mike Wood, and an Order of Referral filed in the following
case pending in the Probate Court #2 of Harris County, Texas:
Cause No. 441,165, In the Estate ofMary Olive Hull Calkins, Deceased.
Pursuant to Government Code§ 25.00255, the undersigned, as Presiding Judge of
the Statutory Probate Courts of the State ofTexas, makes the following order:
IT IS ORDERED that the HONORABLE GLADYS B. BURWELL, a Senior
Statutory Probate Judge with an Oath on file, is assigned to hear the Motion to Recuse
filed in the above-referenced case, with all rights, powers, and privileges held by the
regular judge of the court assigned and the attendant jurisdiction of a Statutory Probate
Court.
Costs, if any, for this filing are waived.
SIGNED September28, 2015.
Guy S. , Presiding Judge
Statutory Probate Courts of Texas
-----------------------------------------------------
Appendix 14, Judge Herman Order Assign Judge Burwell Hear
ONLY Motion to Recuse, not Disqualify
Page 1 of 1
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 10/30/2015
Stan Stanart, County Clerk
Harris County, Texas
APPENDIX 13
Appendix 13, Judge Wood Order Referring
Motion Recuse and/or Disqualify
Page 1 of 1
Appendix 12
Appendix 12, Sept. 9, 2015 Motion Recuse and/or Disqualify
Page 1 of 6
Appendix 12
Appendix 12, Sept. 9, 2015 Motion Recuse and/or Disqualify
Page 2 of 6
Appendix 12
Appendix 12, Sept. 9, 2015 Motion Recuse and/or Disqualify
Page 3 of 6
Appendix 12
Appendix 12, Sept. 9, 2015 Motion Recuse and/or Disqualify
Page 4 of 6
Appendix 12
Appendix 12, Sept. 9, 2015 Motion Recuse and/or Disqualify
Page 5 of 6
Appendix 12
Appendix 12, Sept. 9, 2015 Motion Recuse and/or Disqualify
Page 6 of 6
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ECOURT .(l?
No. 441165 ...
.,.
ESTATE OF IN PROBATE COURT
MARY OUVE HULL CALKINS, NUMBER TWO (2) OF
DECEASED HARRIS COUNTY, TEXAS
Order on Motion Re-Urging Constitutional Disqualification of Judge Mike Wood
On this day the Court reviewed the Motion Re-Urging Constitutional Disqualification of Judge
Mike Wood, Based on the Prior, March 5, 2009, Disqualification of Judge Mike Wood In Case Involving
Mary Olive Calkins, carolyn James, and Richard Stephen Calkins, In Which Hon. Olen Underwood Found
Carolyn James Joined in the Motion for Disqualification, asking the Court to review its Order dated
October 16, 201S. The Court does not find any basis In Texas procedural law for a "Motion to Re-urge"
any ruling the Court has previously made and the Court can deny such motion that has no basis in law.
Not withstanding the lack of authority for such a "motion to re-urge", the Court finds that the
evidence presented to the Court on October 16, 2015, both in pleadings and in oral argument, did not
present any evidence that showed that Judge Mike Wood had made any rulings in this case that would
cause him to be recused or disqualified to preside over this case and that the Motion Re-Urglng
Constitutional Disqualification of Judge Mike Wood should be denied.
It Is ORDERED that the Motion Re-Urging Constitutional Disqualification of Judge Mike Wood,
Based on the Prior, March 5, 2009, Disqualification of Judge Mike Wood in case Involving Mary Olive
Calkins, Carolyn James, and Richard Stephen Calkins, in Which Hon. Olen Underwood Found Carolyn
James Joined in the Motion for Disqualification is DENIED.
Signed in the Courtroom of Harris County Probate Court Two on November 20, 2015.
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