How do you go about getting rid of a bad or corrupt municipal or justice court judge?  It’s not really as hard as you think, at least not in Texas.  However, one thing that you need to be aware of is that, while the rules for disqualifying a municipal judge are laid out in writing and are pretty straightforward in Chapter 29 A-1 of the Texas Government Code, there are apparently no such written rules directly applicable to justice court judges.  But, we are necessarily going to try and use the same rules regardless. How?  By asserting the argument that there must be equal protection and application of the laws in order for us to do so.

I would also highly recommend that you spend some time devoted to reading and understanding Chapter 30 of the Texas Government Code as well. It contains several provisions that I have learned are NOT being complied with by MANY Texas municipal courts of record. And their failure to comply could possibly be grounds to challenge the validity, and thus the entirety of jurisdiction by what can only be construed as an UNLAWFULLY functioning court.

Ask yourself these questions;

• Do we not have the SAME rights and requirements of due process in BOTH courts under either type of judge?
• Aren’t they both bound by the same rules of procedure and judicial canons under which they claim to be acting?
• Don’t they both violate the same rights of the Accused when they act to ignore or deny the proper application of the rules of procedure and evidence, as well as the judicial canons that require them to act fairly, impartially, and in compliance with the law?
• And when they don’t comply with and follow those rules, don’t you have a RIGHT to seek remedy for the resulting rights violations in order to protect your right to have a fair and impartial proceeding and trial before an impartial and properly behaving judge?

The correct answer to each of these of course, is yes, and that you DO have a right to a fair and impartial judge in every proceeding and at trial. Too bad that you aren’t going to get any of that though!  At least, NOT unless you know HOW to make sure that you at least get the chance to have it.

So, the intent of this article is to show you HOW to do that.  At the bottom of this article there is linked in a complete Motion that you can use and adapt to your own case to seek the disqualification of a badly behaving judge.  BUT, be very aware that any Motion to Disqualify filed in a Texas court is REQUIRED to be signed under penalty of perjury before someone authorized by law to administer oaths.  Which means that you have to sign it in front of a Notary.

Thus, you CANNOT prepare one of these Motions in advance BEFORE going into court each time because the specific facts that each such motion must allege and have written into them supporting your right to a disqualification of a bad judge have not yet occurred, which means that you can write the Motion only AFTER the judge has misbehaved. THIS is why we MUST find a way to record the proceedings if at all possible so we can create a verbatim transcript of everything that transpired in the proceeding and gave rise to the need to disqualify.  Make sure that you do only ONE original copy of this motion (which should ALWAYS be the case for ANY original pleading or affidavit). Then, AFTER it is signed and notarized, you can make all of your extra copies for filing.

I am putting the body of the motion in this article so you can read it without having to download it first.  That way you can see if it fits your particular needs before doing so.  Just remember that the text written in the article is NOT complete as is required by an actual Motion that you would file. There is also the fact that the web SUCKS at keeping the proper document formatting that you use in the actual document.  So download and use the MS Word document instead of copying the text from the article.  Also, take note that the example Motion is an AMENDED Motion, meaning that it was a second filed version that incorporated changes from the first filed version of the pleading.  If you are filing this as your FIRST original pleading, be sure to REMOVE anything referring to the pleading being an amended version.

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Respondent’s Special Appearance and Motion to Disqualify Judge AMENDED

TO THE HONORABLE 26^th DISTRICT COURT JUDGE BILLY RAY STUBBLEFIELD:

COMES NOW EDDIE EUGENE CRAIG, pro se, the Respondent in this matter, who asserts as follows:

Assertion of Rights

Eddie Eugene Craig (Respondent) asserts all his/her unalienable rights, privileges and immunities at Natural Law, Common Law and Maritime Law, and all his/her commercial rights relevant to this state.

Special Appearance

Respondent asserts his/her special appearance, objecting to the trial court’s subject matter jurisdiction, personal jurisdiction, and venue.

Objection to Non-judicial Decision-making

Respondent objects to and does not consent to any assignment or any referral of this case, in any part, to any decision-maker other than a duly elected or properly appointed judicial officer exercising full authority of a municipal court judge and who has an active and current oath of office on file.  Gonzalez v. United States, 553 U.S. 242 (12 May 2008) (“If the parties consent”) (construing 28 U.S.C. § 636(b)).

Objection to use of private law

Respondent objects to the use of unpublished cases.  A cite to “WL” and “Lexis” is a reference to materials not publicly accessible.  For such references even to begin to be meaningful, a full copy of the opinion for each “WL” or “Lexis” reference must be attached.

Respondent Contact information

Contact information for Respondent Respondent is as follows:

Mailing Address:

c/o 1313 Mockingbird Ln.

Austin, Texas [78704]

Phone & Email Information:

Tel.            512-999-9999

Fax :          None

Email  myemail@somemail.com

Plaintiff Contact information

Contact information for Plaintiff City of Rockdale/ The State of Texas is as follows:

Mailing Address Regional Presiding Judge Billy Ray Stubblefield:

26th Judicial District Judge Billy Ray Stubblefield

Williamson County, Texas

P.O. Box 24

Georgetown, TX 78627

Phone & Email Information:

Tel. Phone:            (512) 943-1226

Fax:                                   (512) 943-1188

Mailing Address City of Rockdale Municipal Court:

505 W. Cameron Ave.

P.O. Box 586

Rockdale, TX. 76567

Phone & Email Information:

Tel.            (512) 446-0812

Fax :          (512) 446-6258

Mailing Address City Attorney Michelle Lehmkuhl:

505 W. Cameron Ave.

P.O. Box 586

Rockdale, TX. 76567

Phone & Email Information:

Tel.            (512) 446-2511

Fax :          (512) 446-6258

Table of Contents

Respondent’s Special Appearance and Motion to Disqualify Judge AMENDED.. 1

Assertion of Rights. 1

Special Appearance. 1

Objection to Non-judicial Decision-making. 2

Objection to use of private law.. 2

Respondent Contact information. 2

Plaintiff Contact information. 3

Table of Contents. 4

Table of Authorities. 4

Discussion. 5

Reservation of additional objections. 5

Summary of Respondent’s Arguments. 5

ISSUE:        Is the City of Rockdale Municipal Court bound by the Code of Crim. Proc. in Class C fine-only misdemeanor proceedings?. 7

ISSUE:        Did the court violate Respondent’s right of due process by ignoring specific rights codified in the Code of Crim. Proc.?. 9

ISSUE:        Did the Court violate the laws of this state and Respondent’s right of due process by requiring that a plea be entered before a court clerk rather than a proper judicial officer in a proper judicial proceeding?  13

ISSUE:        Did the Court violate Respondent’s right of due process by failing to follow the requirements of the Code of Crim. Proc. and the Code of Judicial Conduct?. 14

Request for Relief. 16

Verification. 18

Certificate of Service. 18

ORDER.. 19

Table of Authorities

Cases

Austin v. New Hampshire, 420 U.S. 656, 668 (1975) (Blackmun, J., dissent)…………………………. 1

Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326, 344 (1980) (Powell, J., and Stewart, J., dissent)     1

Ex Parte Greenwood, 165 Tex. Crim. 349; 307 S.W.2d 586; 1957 Tex. Crim. App. LEXIS 2350 11

Gonzalez v. United States, 553 U.S. 242 (12 May 2008)………………………………………………………. 2

Williams v. Vermont, 472 U.S. 14, 28 (1985) (dissent)…………………………………………………………. 1

Rules of Criminal Procedure

Tex. Crim. Proc. Code Ann. Art. 1.05 (Thomson/West 2011)…………………………………… 10

Tex. Crim. Proc. Code Ann. ART. 2.03 (Thomson/West 2011)…………………………………… 7

Tex. Crim. Proc. Code Ann. Art. 2.04 (Thomson/West 2011)…………………………………… 10

Tex. Crim. Proc. Code Ann. Art. 2.05 (Thomson/West 2011)…………………………………… 10

Tex. Crim. Proc. Code Ann. Art.1.05 (Thomson/West 2011)………………………………. 12, 14

Tex. Crim. Proc. Code Ann. Art.1.14 (Thomson/West 2011)……………………………………. 14

Tex. Crim. Proc. Code Ann. Art.2.04 (Thomson/West 2011)……………………………………. 14

Tex. Crim. Proc. Code Ann. Art.2.05 (Thomson/West 2011)……………………………………. 14

Tex. Crim. Proc. Code Ann. Art.28.01 (Thomson/West 2011)…………………………….. 11, 12

Tex. Crim. Proc. Code Ann. Art.32.48 (Thomson/West 2011)………………………………….. 11

Tex. Crim. Proc. Code Ann. Art.45.002 (Thomson/West 2011)…………………………. 8, 9, 14

Tex. Crim. Proc. Code Ann. Art.45.018(b) (Thomson/West 2011)……………………….. 12, 14

Tex. Crim. Proc. Code Ann. Art.45.019(f) (Thomson/West 2011)……………………….. 12, 14

Tex. Crim. Proc. Code Ann. Art.45.028 (Thomson/West 2011)………………………………… 10

Tex. Crim. Proc. Code Ann. CHAPTER 45 (Thomson/West 2011)……………………………… 8

 

Statutes

Tex. Const. Art. 1, § 10……………………………………………………………………………………… 12, 14

Tex. Gov. Code Ann. Chapter 29-A (Thomson/West 2011)………………………………….. 5, 7

Tex. Gov. Code Ann. Sec. 29.055(c) (Thomson/West 2011)………………………………………… 6

Tex. Gov. Code Ann. Sec. 29.055(c)(1) (Thomson/West 2011)……………………………………. 6

Tex. Gov. Code Ann. Sec. 29.055(c)(2) (Thomson/West 2011)……………………………………. 6

Tex. Gov. Code Ann. Sec. 311.016(4) (Thomson/West 2011)………………………………… 12, 13

 

Discussion

Reservation of additional objections.

Should a “complaint” ever exist, and should STATE ever satisfy its Due Process burden by serving such “complaint,” Respondent reserves the right to supplement this motion should there be defect, error, or irregularity with such “complaint.”

Summary of Respondent’s Arguments.

Respondent originally filed this Motion to Disqualify presiding Judge Jerry Waggoner (“Judge Waggoner”) of the City of Rockdale Municipal Court (“Court”) on or about November 22, 2012. The original motion was filed pursuant Chapter 29 A-1, Gov. Code, as soon as was practicable after Respondent realized that Judge Waggoner had absolutely no intention of following the law or providing those before his court with even an appearance of fairness and impartiality or the right to fundamental due process. To date Respondent has received no response or other information as to the disposition of the original filing.

Pursuant Chapter 29 A-1, Gov. Code, Judge Waggoner was required to forward the motion to Judge Billy Ray Stubblefield for review in his capacity as regional presiding judge (see Sec. 29.055(c)(1)). From all appearances, Judge Waggoner knowingly, willingly and intentionally ignored this requirement and failed or refused to forward the original motion as required by law.

Furthermore, Judge Waggoner, pursuant Sec. 29.055(c) , Gov. Code, was required to cease and desist all further action (see Sec. 29.055(c)(2)) until such time as a ruling on his disqualification was returned by the regional presiding judge. Judge Waggoner further ignored this requirement of law and proceeded forward in this matter by the issuance of a warrant of arrest for Respondent under the guise of failure to appear for the so-called “trial.”

These acts alone prove that Judge Waggoner has no respect for the laws associated with the duties of his office, the due process rights of Respondent, or promoting even the general appearance of fairness and impartiality, therefore, his actions demand disqualification of a constitutional nature, if not actual divestment of his office and authority.

Respondent reasserts the following original points of authority and argument as the original basis for Respondent’s demand for the complete disqualification of Judge Waggoner and the dismissal of this matter.

Respondent argues that presiding Judge Waggoner is hereby disqualified ab initio pursuant Chapter 29 A-1, Gov. Code, from presiding over any proceedings in Respondent’s matter.

Respondent shows by the facts stated herein that Judge Waggoner, while acting under color of law, knowingly, willingly, and intentionally did violate specific laws relating to the duties of his office, numerous canons of the Code of Judicial Conduct and Judicial Ethics, and acted with bias and prejudice against Respondent in the preliminary proceedings held in the Court.

Furthermore, Respondent shows by the facts stated herein that Judge Waggoner’s actions under color of law have deprived Respondent of protected fundamental rights, including but not limited to, the right of due process, which deprives the Court of all personal and subject matter jurisdiction over Respondent.

Furthermore, Respondent shall show that Judge Waggoner’s actions under color of law, while absent all lawful jurisdiction, constitute criminal acts for which criminal complaints are to be filed by Respondent with the Milam County grand jury pursuant Art. 2.03, Code of Crim. Proc.

Lastly, Respondent has also filed several judicial conduct complaints (see attached) against Judge Waggoner with the State Judicial Conduct Committee for violations of multiple canons of the Code of Judicial Conduct and Judicial Ethics.

ISSUE:                 Is the City of Rockdale Municipal Court bound by the Code of Crim. Proc. in Class C fine-only misdemeanor proceedings?

If this were an actual criminal case, then, Respondent expects that Judge Waggoner and City Attorney Michelle Lehmkuhl (“Attorney Lehmkuhl”) would be required to obey the laws as codified in the Code of Crim. Proc. This is especially true considering that, while acting under color of law and in their official capacities, said law governs the duties of their respective offices relating to the prosecution of all alleged “criminal” cases.

If this were an actual “criminal” case, then, both Judge Waggoner and Attorney Lehmkuhl are specifically required and directed to follow the provisions of Chapter 45, Code of Crim. Proc., and other related provisions elsewhere within the Code of Crim. Proc., in all “criminal” cases, which the court record (or lack thereof) clearly shows they have not done, to wit:

Art. 45.002. APPLICATION OF CHAPTER.Criminal proceedings in the justice and municipal courts shall be conducted in accordance with this chapter, including any other rules of procedure specifically made applicable to those proceedings by this chapter.  If this chapter does not provide a rule of procedure governing any aspect of a case, the justice or judge shall apply the other general provisions of this code to the extent necessary to achieve the objectives of this chapter.

(Emphasis added)

Art. 45.002, Code of Crim. Proc., requires and directs that all “Criminal proceedings in the justice and municipal courts shall be conducted in accordance with this chapter, including any other rules of procedure specifically made applicable to those proceedings by this chapter.”

Furthermore, Art. 45.002, Code of Crim. Proc., clearly requires and directs that “If this chapter does not provide a rule of procedure governing any aspect of a case, the justice or judge shall apply the other general provisions of this code to the extent necessary to achieve the objectives of this chapter.”

If this were an actual “criminal” case under the provisions of Art. 45.002, Code of Crim. Proc., then, by the usage of the term “shall,” this article clearly makes mandatory the requirement that municipal and justice courts of this state comply with all the relevant provisions of Chapter 45 in general and specifically Art. 45.002, Code of Crim. Proc.

Therefore, if this were an actual “criminal” proceeding, the court record (or lack thereof) clearly proves that Judge Waggoner, while acting under color of law, knowingly, willingly, and intentionally ignored virtually all procedural due process requirements and rights belonging to Respondent, and Judge Waggoner did so in direct violation of the laws of this state and of the United States.

Therefore, Judge Waggoner and Attorney Lehmkuhl have officially declared the Code of Crim. Proc. irrelevant to these and all other criminal proceedings held in the City of Rockdale Municipal Court, both by their respective actions and failure to perform even a single item of any article therein in accordance with the plain and common language of the codes provisions during all proceedings thus far.

Thus, Respondent has good cause to believe that these facts substantiate his/her assertion and conclusion that this is not and cannot be a “criminal” proceeding, and, therefore, can only be a non-case, i.e. it is civil, and, therefore, the Court lacks jurisdiction, as does Judge Waggoner.

Therefore, by acting without jurisdiction outside of all constitutional and lawful authority, and in violation of Respondent’s fundamental protected rights, Judge Waggoner is criminally liable for his/her actions and disqualified for all purposes.

ISSUE:                 Did the court violate Respondent’s right of due process by ignoring specific rights codified in the Code of Crim. Proc.?

As addressed in Respondent’s Special Appearance and Motion to Dismiss, Respondent, by law, is entitled to proper notice, i.e. service, of a written copy of both a criminal complaint and proper charging instrument, i.e. an “information,” “not later than the day before the date of any proceeding in the prosecution…” under the provisions of Arts. 1.05, 2.04, 2.05, and 45.018(b), Code of Crim. Proc., to wit:

Code of Criminal ProcedureArt. 1.05. RIGHTS OF ACCUSED.  In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury.  He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof.  He shall not be compelled to give evidence against himself.  He shall have the right of being heard by himself, or counsel, or both;  shall be confronted with the witnesses against him, and shall have compulsory process for obtaining witnesses in his favor.  No person shall be held to answer for a felony unless on indictment of a grand jury.

Art. 2.04. [28] [34] [35] Shall draw complaints

Upon complaint being made before a district or county attorney that an offense has been committed in his district or county, he shall reduce the complaint to writing and cause the same to be signed and sworn to by the complainant, and it shall be duly attested by said attorney.

Art. 2.04 (emphasis added).

Art. 2.05. [29] [35] [36] When complaint is made

If the offense be a misdemeanor, the attorney shall forthwith prepare an information based upon such complaint and file the same in the court having jurisdiction; provided, that in counties having no county attorney, misdemeanor cases may be tried upon complaint alone, without an information, provided, however, in counties having one or more criminal district courts an information must be filed in each misdemeanor case. …

Art. 2.05 (Thomson/West 2005) (emphasis added).

Art. 45.018. COMPLAINT.

(a)  For purposes of this chapter, a complaint is a sworn allegation charging the accused with the commission of an offense.

(b) A defendant is entitled to notice of a complaint against the defendant not later than the day before the date of any proceeding in the prosecution of the defendant under the complaint.  The defendant may waive the right to notice granted by this subsection.

(Emphasis added)

Respondent filed his/her Special Appearance and Motion to Dismiss with the trial Court in a timely manner, long before his/her commanded appearance for a sham “pretrial” proceeding in which the only objective of the court and the prosecution was to coerce Respondent into either making a deal or entering a plea. Neither of these are proper purposes for commanding a pre-trial appearance before the court according to the statutes of this state codified in Art. 28.01, Code of Crim. Proc.

Without so much as reading them, Judge Waggoner dismissed Respondent’s points of law and argument relating to there being no complaint and proper charging instrument filed in the court record, and no proper, sufficient and timely notice of either instrument being served upon Respondent. Judge Waggoner refused to even acknowledging the due process violations created by proceeding in the knowing absence of a sworn complaint. As the Texas Court of Criminal Appeals has themselves set the filing of a complaint[1] as the minimum bar to investing municipal and justice courts with jurisdiction of a Class C misdemeanor cause, which Respondent believes is a constitutionally and statutorily incorrect ruling, how is it even remotely lawful for the court and the prosecutor to proceed against Respondent knowing full well that jurisdiction has never been conveyed by the filing of a proper complaint?

As no proper complaint was ever filed into the court at the time numerous pre-trial proceedings were initiated and conducted by the prosecutor and himself, Judge Waggoner, acting absent all jurisdiction in the matter, issued numerous instruments simulating legal process in violation of Sec. 32.48, Penal Code, and conducted several judicial proceedings prior to jurisdiction allegedly being obtained by the filing of a criminal complaint.

Furthermore, Judge Waggoner acted in concert and collusion with the prosecutor to deny Respondent in a fair, impartial, and speedy trial by allowing prosecutorial proceedings to commence without such a complaint having been filed, thus preventing the speedy trial “clock” from ever being started in the case. The result being that Respondent’s right to a speedy trial is directly harmed by being preliminarily processed for prosecution without benefit and protection of any passage of time being charged against the State for failure to timely commence the trial on the merits.

Additionally, it is statutorily impossible for Respondent to comply with the requirements of Art. 45.019(f), Code of Crim. Proc., by challenging the complaint until a complaint has been filed and served upon Respondent, which was never done. When a complaint is neither filed nor served upon the accused until the day of trial, it is not only statutorily impossible to challenge the complaints form and substance pursuant Art. 45.019(f), Code of Crim. Proc., it also makes it statutorily impossible for Respondent to comply with Art. 28.01, Code of Crim. Proc., by filing a Motion to Set Aside or “Quash” the complaint no less than seven days prior to any pre-trial proceeding.

To date, the requirements of Art. 45.018(b), Code of Crim. Proc., have not been complied with, thus, violating Respondent’s protected right of notice as denoted by the use of the phrase “is entitled to” pursuant Sec. 311.016(4), Gov. Code, and as recognized and protected by Art. 1.05, Code of Crim. Proc., and [Tex. Const. Art. 1, § 10], to wit:

Texas ConstitutionArt. 1, Sec. 10.  RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS.  In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury.  He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof.  He shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger. Government Code

Sec. 311.016. “MAY,” “SHALL,” “MUST,” ETC.  The following constructions apply unless the context in which the word or phrase appears necessarily requires a different construction or unless a different construction is expressly provided by statute:

(1)  “May” creates discretionary authority or grants permission or a power.

(2)  “Shall” imposes a duty.

(3)  “Must” creates or recognizes a condition precedent.

(4)  “Is entitled to” creates or recognizes a right.

(5)  “May not” imposes a prohibition and is synonymous with “shall not.”

(6)  “Is not entitled to” negates a right.

(7)  “Is not required to” negates a duty or condition precedent.

(Emphasis added)

By right and law Respondent is entitled to challenge the subject matter jurisdiction of the court at any time and in personam jurisdiction prior to any general appearance, and to have the response to such challenges addressed by actual points of law and evidence submitted into the record of the court. Neither the court nor the prosecution has ever met this requirement. In fact, the jurisdictional challenges posed by Respondent were simply ignored by Judge Waggoner and Attorney Lehmkuhl, while both were acting under color of law, with Judge Waggoner again proceeding sua sponte to simply declare by fiat that the court had jurisdiction, despite no legal evidence of that fact being submitted into the record by either the prosecution or the court.

ISSUE:                 Did the Court violate the laws of this state and Respondent’s right of due process by requiring that a plea be entered before a court clerk rather than a proper judicial officer in a proper judicial proceeding?

Under color of what law and authority does Judge Waggoner and Attorney Lehmkuhl act to ignore and deny the laws of this state by allegedly authorizing a mere clerk of the court, Wrenie Wheeless (Wheeless), to impersonate a judicial officer by conducting judicial proceedings for the purpose of taking and entering a plea upon the official record of the court?

ISSUE:                 Did the Court violate Respondent’s right of due process by failing to follow the requirements of the Code of Crim. Proc. and the Code of Judicial Conduct?

Respondent has procedural due process rights protected by the requirements of Arts. 1.05, 2.04, 2.05, 1.14, 45.002, 45.018(b), and 45.019(f), Code of Crim. Proc., and [Tex. Const. Art. 1, § 10]. If this were an actual “criminal” case, then, by failing to comply with these provisions of law relating to the duties of his office regarding “criminal” prosecutions, Judge Waggoner, while acting under color of law, knowingly, willingly and intentionally violated the due process rights of Respondent, thus creating the impression of bias and partiality on behalf of the prosecution.

Furthermore, Judge Waggoner, while acting under color of law, knowingly, willingly and intentionally spoke to Respondent in a condescending, belittling, and contemptuous tone and manner before other peoples currently present in the court on September 13, 2012, thus creating the impression of bias and partiality on behalf of the prosecution.

Furthermore, Judge Waggoner, while acting under color of law, knowingly, willingly and intentionally failed to act without bias and partiality by acting sua sponte on behalf of the prosecution to deny out-of-hand several written motions challenging jurisdiction of the court and other related matters of law that were never rebutted or challenged by the prosecution, and did so without holding a proper pretrial hearing of the motions for the purpose of oral argument by Respondent.

Furthermore, Judge Waggoner, while acting under color of law, knowingly, willingly and intentionally failed to act without bias and partiality by soliciting and accepting advise from Attorney Lehmkuhl to deny Respondent’s motions, despite Lehmkuhl admitting that, even though she was the prosecutor assigned to the case, she had never read them. In so doing, Judge Waggoner, while acting under color of law, and by colluding and conspiring with Attorney Lehmkuhl to deny Respondent’s due process rights under color of law, violated numerous canons of the Code of Judicial Conduct, to wit:

CANON 1 – Upholding the Integrity and Independence of the Judiciary.

CANON 2 – Avoiding Impropriety and the Appearance of Impropriety In All of the Judge’s Activities.

1. A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
2. A judge shall not allow any relationship to influence judicial conduct or judgment A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

CANON 3 – Performing the Duties of Judicial Office Impartially and Diligently

CANON 3A – Judicial Duties in General.  The judicial duties of a judge take precedence over all the judge’s other activities. Judicial duties include all the duties of the judge’s office prescribed by law.

CANON 3B – Adjudicative Responsibilities.

(2)     A judge should be faithful to the law and shall maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.

(4)     A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials and others subject to the judge’s direction and control.

(5)     A judge shall perform judicial duties without bias or prejudice.

(6)     A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not knowingly permit staff, court officials and others subject to the judge’s direction and control to do so.

 

CANON 6 – Compliance with the Code of Judicial Conduct

CANON 6C – Justices of the Peace and Municipal Court Judges.

(2)     A justice of the peace or a municipal court judge, except as authorized by law, shall not directly or indirectly initiate, permit, nor consider ex parte or other communications concerning the merits of a pending judicial proceeding.

CANON 8 – Construction and Terminology of the Code

CANON 8B – Terminology.

(1)     “Shall” or “shall not” denotes binding obligations the violation of which can result in disciplinary action.

(8)     “Law” denotes court rules as well as statutes, constitutional provisions and decisional law.

Request for Relief

Therefore, Respondent requests that regional presiding judge Billy Ray Stubblefield grant his/her special appearance and enter a finding and order declaring that Judge Waggoner is disqualified for all purposes from presiding over any proceedings involving Respondent in the instant matter.

Furthermore, Respondent requests that regional presiding judge Billy Ray Stubblefield direct the Court to dismiss the false charge of failure to appear and recall the subsequent warrant of arrest issued by Judge Waggoner in direct violation of the laws of this state.

Furthermore, Respondent requests that regional presiding judge Billy Ray Stubblefield direct the Court to dismiss this case with prejudice for lack of subject matter and in personam jurisdiction.

[1] Ex Parte Greenwood, 165 Tex. Crim. 349; 307 S.W.2d 586; 1957 Tex. Crim. App. LEXIS 2350

05.0699E EC – MTDR – Disqualify or Recuse Judge (AMENDED)