in Re Richard Stephen Calkins

Opinions

Opinion

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

Opinion

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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Opinion

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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Opinion

“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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Opinion

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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Opinion

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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Opinion

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

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

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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

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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).

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5

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-

10

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-

11

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-

13

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-

16

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-

No.378,993

§ PROBATE COURT

MARYOLIVE K.~! § NUMBER FOUR f<tldttATE COURT 4 . ...,,..,. 'd\

AN INCAPACri.TEPJi~~N § HARRIS COUNTY, TEXAS '~;·\;_~f~$$'~'

RECYSAL ORDER

',·~t

... j,~-~.~

On this day, th~~~oJff'~n its own motion finds that it is in the best interest of the above-referenced cause of action for the Court 'to recuse herself, and the Court hereby recuses herself from the above-referen.~d cause of action and all associated sub- dockets, including 378,993-401, p to Tex.Govt.Code §25.00255.

IT IS THEREFORE ORDERED

assign this case to a judge of one qf:: arris County Probate Courts pursuant to

the Supreme Court of Texas '"

Section 4.3 of the Local Rules for the Probate ~9urts of Harris County as approved by on]une'~!;!~7iJ~\!r:

IT IS FURTHER ORDERED thatfudge Chd~!ine Butts will take no further action· ··~}· :t~

in this cause. ~, .... <· ""{;,f.:l~~~+~t

Costs associated with this order are w~ivect.

·~,.

Signed this [I day of March. 2~l1.

EXHIBIT

A

-·~------------------------------------------------------~--------------------

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 1 of 4

~:.:,.i;:i ;:;\IX PICK ue THrS oarm

t1~!:l ESTATE OF

CAUSE NO. 378,993

I IN mE PROBATE COURT PROBATE COOftf':4

§

f

MARY OUVE CALKINS, § NUMBER ONE OF § §

AN INCAPACITATED PERSON § HARRIS COUNTY, TEXAS

ORDER OF RECUSAL

above-referen&d Cli~,~ctlo~;,tmP,. all associated sub..cJockets, including 378,993·401, pursuant ... -- - '<

to Tex. Govt. Code § 25.0025~~.

IT IS THEREFORE ORDEit!m:that 1iWis ma~be randomly reassigned by the county _, .:·t:. _ (>- '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

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

--·

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, Order Grant Motion DQ Wood Page 1 of 1

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

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

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

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

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

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

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

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

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

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

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

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

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

()(')-

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

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.

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

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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

"-------------~-------------------------- --·--

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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

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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

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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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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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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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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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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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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

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!

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

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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

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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

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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

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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

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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

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

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Exhibit A

Exhibit A Page6of19

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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

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

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Exhibit B

Exhibit A Page 8 of 19

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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

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.

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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

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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

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

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Exhibit C

Exhibit A

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.. ,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 l<a)'lllDnd lived bappRy wil~ J~~J;f~~~:::[~oJ

Baptist minister. couooels <~l1orncys he is fishrln& in «~urt on hif {QmUy. Then th~ lCtDt)' look him tW3y and <:VCn "«'(''" ..._.,.,,,.,.,.,. ... <

the Bible, sendi!l!; them spiritual advice by fax und e-m~il, or thoutb bt. Chlllliii•·Alntrlt:lln famU~ fought to tel l!h~ boek, they cculdn'tlind tllo dgbt wanb .tllililiiP~·~;-n ~·:~...;.(r...;.....•,~·..

In letters emhlnzoned with the Texas (lt.'lte s~ul. '\~ ftUQ.Wl.lCJtJ~~~':!UlJ...k.Col\\l)IUU~U.'It:ll:QY~ thJJ'. 1oll 1 ttJQe (5.01 t)

tMwtw:lM (l66J

·~t· IWI'\hh ,,,Jt6\ ...,.,...,~o.sby ·~~~~1), JN:ol H,Of0J He refers to himself and the i<JIJH •iUOIL•Inmlr.t \!i 14l>l

attorney for whom he wori~S, PQtijr ,,u Cl•mh~i H<ll~it..,, T-.

. J. Ri~;a, as Duke & Duke: uftflr the : Eddi~ Murphy-DanAykroyd p~ir in the film Trading Plac~s. ("A.nd : remember, Vulernine •..it makes no · difference whether our clients make money or losa money, M:llt : DUke l!c Duke always getlhc ~ commission~.")

, \ Easton, so, 11 fu.ai!ti.;:.al basebaU """to""'~"' h•"ln• on. bein;

I~nf41rlyt:u;et<d. · ·· ··-· ·-·· · • fan sits in his offlce wenrin" a I •· "

·- ·~· Te?cu:~ R11n~;e.n; shirt, short.~~ and runnin~; shoes. Sometimes he tali<S h'kc n rap star, &pea kill& in a rhyming homeboy patois. Other times he rnttles ofibaseb~ll lllnp --·--.~----

~

stali.r;tics. He bas on almost photoVolpbic memory,and can. Munlfttoto.O!lh~>.~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.'<! cigarette. •·) Jil!L.l\~*4 \Vcc;kl'Jtrtt•· Jl•nl ('h;dlengc:J.L Itld!x.Sll!UI~ 0111! l!h)ilCIX,~ 'T'ueSop23, t~:~o.u.s

So Ellston i5 an ex•OJJn as well a!! il minist~r and devotee of ·> ~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

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 <oo'r C.<p rM• 8G-'t<>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 E<laton fro1n lillns roses under his own name io the Southt:m Distriet, but Easton now is working on a CMt: under Gttornoy Rica's nome In thot same jurisdiction. '"-'CI:"Nl.'~~-(·~ In 1997, Hittner wrote in u court onicr that he WliS "concemed about the vindictive tone, contlnuully ~~;t.:i;;;~ ·-·~';ri j ~.~....~ :..J.:..::..J

demonstrated by 'Easton in the pleudinss Md documen~ authored by him und 81.1bmittcd to the court and to olhcr 'tate aod fuderal court'- 015 well liS in corrtlspondence wilh others in the legal community in sen era!."

I, "9ncd

Oltk• Dean; NFL. 111\nd

FUI4 SRE HolmOl

i 1000'S or Ha•le• Fot i L.oN ·nu.n 1 · Don't lollll o.u

s~nole ovo.

I

Attoroey Domiatl Li!Croix u now e<:hoins those Snme sentiments about this pn:mier patlllngsl, who Wll!l pll.roled from prisoo o11ly l:~st November. LaCroix'a firm ufCaill, Buthe & U!Crolx represented p!nintiff S~ojec:v Dabubhai Patel and his Ahl Investments Corporntion in wh~t $Oemed like a standard civil suit over 11bout $Sso,ooo in disputed funds. P1ttel s:~ld he'd lent the fond!; to the defen&nu, longtime bualnes3 \ PooGit PUl)"lcs

'1

T~~cup

PUPS

MtCilO

tlnyfiWUndc;1i"W s

Awaii~Uie

Tt:cn't Tiny c:hlh"ilhU:I I; POCI<tTPuppi4S I !

MOJO b&tY, R:ll1 tfi\dld ad$'

a.£sodate S1.1rc.•h Kumar Sh;sh and Slulh'll Vaishnavi Enterpriltes Inc.

The def~ndnnt.s argu~d that !he money received from Patd wo.s :1 re.fund , :~lthough a state di6trict court jury ruled for Patel last Novemb\:r. ShAh was Ol'dercd to p:~y the pl:~inliff aboul $1.1 rnillion, which included I interost on the orisinal funds.

ShAh's uttomey is Riga, and the plaintiff's lawyers soon round themselves Cueing his zculou.s porolus~l. Ellston.

I

LaCroix and p:nlnGrJohn Karl Bucho $~Y Ea~ton has engased in nll ~oriS of nafar!o1.1~ dalay tacli;::s to keep Sh:~h from having to P-lY up a'n the judsmeaL

LaCroix llllid Easton'& method51nelud" racial 5lurs, b:lnl3Sment, constant bQmbardmcnt with k-tters, motion.e ;u,d filings, and even a lawsuit.

Exhibit A

Page 14 of 19

http://www.houstonpress.com/2003-06-26/newslbar-card/ 9/23/2008

· m Ha nce with the Public Information Act.

Confidential information may have been redacted from the document m co P

Appendix 1, First Amended Motion Disqualify Judge Wood A Certified C opy on Constitutional Grounds Attest: 10/30/2015 Page 26 of 84 Stan Stanart, County Clerk Harris County, Texas

-

_ _ _:~: : : ._Cf1')~;-;: :;rj-: r nm·-un~90rili'Q'Kfi~r--Deputy SONG THI NGAN 1RAN

NP.WS

!I( VIS

M1JSIC

IICH Of

ll:AACII o\J)IUO{\;

lun!.<.Y's PUll •

Brmt of Houston ii[auncn llarly • !l!it!Ltuth~ rtlitllt.ll''"•il.nh:<t~ I mi!U~,.j,:lt I !n1!l:.;'!lt~r.<ommcllt .a lickuls fer SID ihru Sa~rcmuar ~am Bar Card

l:lll!.!!=ioruzfrlr.Lur,il~·.n Continued from page 1 AOlghl ~tloQdaiitwlint afltr t~c Orteenf In court, brin~ins oa tri~ll and lribulMion !crone ~nd oil ·~ Dlt~l\!u:l!ll'

T~~ unln<:orl)(lrttod lmorn il up 10 it< clbcw• i.n youth ;on;s, l)(lvorty ond ¢r[ruo .

• I.Or.il food 1 mull( and "He hos 'ued u~ personally and &ucd our secretaly Cor doing ~ Uu:• .Yo~o~J!II!i.!Utd nnn.btasts liou.lon ~eli hi! wi.1h binor.t • frqt ~Mf her j..,b, • LACroix s.'\Jd. .;:, l~tt~nl!J~..:I:i~!! S<.i~urlbe ~·

. £aston snid he isn't $\ling them, llt!b:iol).ll l'Or lbolilltJI<~<. U.by Raymond lived h•jlp!lywith his Com fly. 1'beu lh• n~ency look !tim a war ornlcvtn .l~~~~~~~.9!~~~~~J1

,~

:§f:l

.•-.,. );11''!1'"~'''.1"i though llis Chln...,.Amori<ah f>rnily 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<l.tl;u:ho~unni~ Thi! two contend that attorney Riga permits En8ton to act us Tile Scp 1t3, g ,2o AM &n anom<.')', and ev~n to file pleadings that aren't ruviewed by ·> 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.<rton legal community,• B\lche snid. "Mithilr.:l Easton •) l'W!Ol\\lll'k is th~ de facto lawyer on our ca.se for virtually ever legal issue Now drill $q~ad teyouutoUowme!nblL:"'tlonl ill '~'=• City

cncountercc:l.."

{> ~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

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<ll Fc n tm · ~.; SERVICES qu~i-<Otmsel . whic:h Buche f!omplained nb!lut. But Rir;~ n id !mplvymqM FIT & Ptr IHBOUHD CAlL

that is co ca11se (or disciplinary action. Vlll:o);u VII i"-t· CEMTf~ PiiOHER REP Whll:iiL~•l~.~ .'fiJ!(JI\:ld.S~Iun\1~);~ ll11o?w All I V1~w !,1tt YO<Ir ~•idt to ttndtnl.:llldiJ>; 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 • . ~<hoo t • Croat~'<• with these Jawy~:n, ~she do~:.~ not lack Lho c11ndor o~ sense of ~r0 Gcu C~tr~t~.Jto~n• 11 Art> Vl ew Aa I v; • ..., Site humor to play along with them." .~Ytvlr.e'

Adoption AdYocltei, In<,

Vttw A<l I Vio,..,.. Sit• Rit,a hA~ on his telterhCllld cum croll$ degrec.s, ·~well as the title$ "attomay ntlaw, • "notary publi c" ond ~ ... - .~ --- - - ...... -,..;o;;-;.- "RI)tbor :~nd novnl~t. " According to his tcn-piiiS ·Jla&~ rC!ume, Rig:. holds a Jaw dLiJree and a Ph.D. from the University of ~lifornia, Bl!T\teley, :IS well as 11 theolo5Y diploma ~nd advanced dc&rees from Louvain 877lipPoolcom University in Bclt:ium. Forycur~. he served a5 scner:~l f!Ounsel for the Arnb Defamntion L.entue in Hou~ton. w Riga said that oth!!.r l11.wyei'S 11n: too sensitive ond become "asily offended by Easton and his e-mail~ ~nd foxes.

In the Patel case, &!&ton wrote, "The notion lh11t you are r,oina to be w~n11on 'Indian Hcud R.ttg' ~nd run the Slull\s [Lhc clients') hotel~ ill ag~in part of that gold-rimmed Cadillilc mentality lhat you dre:un nboul."

In a March 31 fii.X from "QWlSi·Counsel" to LJCrob;, Easton wrote in l:u·g~ bold type, "D:lmi~n. who's your daddy io ca5e l11w? I'll bet you'll never let that slip by you nr,~in . See, I ous,ht to send you 11 bill for all tl\ls '"'1\tiiSth: knowledge thatlllw ijChoolnever tnught you... Now say 'Pa-Pa., D11, Oa.' (Just ltlddin~: my friend .)" Why you ;l>outd !~t to know m~: 'l frequently

rderre<l LO ., !!(:\ ·~mulng .' I think I need

Robert Stbuwt:rl.:, ft professor of law at the Univers\ty of Houston uw Ccntllr and" specialist In legal ethics, said there oro disciplin..ary actions and L'Vcn c:rimhlllllaw5n~gru-ding poralqsals who ovcrr;tep their boundsas wt:llll8 attom~ys who penn it lt.

NOW CLICK TH!IS

Whil~: Schuwerk had oo specific Information on the allegqtions involving Easton, he said thct In generalll llri\ or Ho~<lo<l L3Unch puralQfjlll is barred from representing clients In lhc C)U!'1room. "He c:11n't appear in court unsupel'\'ised," the P•rtV Ad lndo>x

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<edly diff<lnmt. Poodle PuppiU AwAII•b lo Toony Tl•V Chlhuohuo

"Pnralc~h; Clln tlo drall:s of things, aod do thinss like dot:ument reo.'iew~. They can hnve very limited client coDtact, only if the l11wycr is telling them exactly what to s~y and do. They can't appear in co11rt. period."

I Toaa~p

POCKtT PUPS

• tlnyp""'CMGC!Dw •

Pupplot MICIIO

Fant•~ lc ~ttii"Qf On ot;co&~r,tod ncm• In the battle invo!Yin~: Lhe civil case, Eut•:m himse!I hns POCIISed L.lCroix of unethical ptactica That e~~me EW.ttC'MO CkKvu,tcCI P4mcn:sl"d l t:o

<1fter LaCroix uned the word "whoro" \n oourt11.nd threatl'oed to put his foot up E.aatoo'' as.'!.

• t40f"£ Du,, ~n, tra~,. f\dJ

Tim J . Clyne, on Investigator on tho commit lee, uld Easton may ba~ ;m :~bnsivestyle, but the p;ut complaintli were not shown to involve lut.nll to the public or the need !or lilil:ution against him. "It irritnt<1~ ~orne people, but no hurm, no foul ," Clyno 51\ld.

-..ite your cnmm...,l

Exhibit A

Page 16 of 19

htt-p://www.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 28 of 84 Stan Stanart, County Clerk Harris County, Texas

_ _:~ ~~.::JL_'j-=::f:-::,;•-. :-:-n.; :-77~.,.-;:r:n"A"i~ :r---D. eputy

SONG THI NGAN TRAN

rrfm I ·....

I. T({::.~;

Ne!W~

litw:> 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<tlb"

IE·M8llllam~t.;--J rc;.•!

....

................. - •••.•••.,\1!'L14.........:..J

~:r.-:'F~'""""f'"~'·'~l! ~1MtY!~ri1 n.::·~~,.;,.:~~t.~:.•

trwy. 'oU, ~ ("',h't m\ltttf4ft till) ronl•l•tUBYl l ..lll.'1ll ~"ltwAtnl•ln"'"n~ C~.lf.S1 I I : :1 problorn wilh the A)'!ltem." y,• ., ~lantfl'!:~H U4,U•"• f'(

I. I : He concluded, "Tht.: day I set 111 : trouble for reporting this, I don't i want to be a lawye~ anymore. : Wbnt ls happening oow i:1 no ; different !hun allowing a convicted j felon to have a law lieen£a.*

I

: 1'-Mton :uguc~ that LaCroix and Buehe just want lo dwell on his p:u.:t.

"I'v~:paid Cor my~lns and b:J.djud~mem." he wrote them in an e-mail "(I do!J'I call them mi~takes. Mi:stake11 are when you foq:et your car key.~, not when you think you 3l'e sliek<lr than gre.1se itself.)" •!> :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.<!ll..~1 ;m Tu c :>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

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

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

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

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 wellplaced 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

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 predecessorthey 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

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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

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

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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

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~ ~-------~--- ....

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-----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 pr<W:tice or law

Meg-! am a member of the Houston UPL subcommittee and wa:o assigned tho Michael Easton case before the current lawyer. Easton nas been oofore our committee a numDer of limes ancl we aon't seem to be 8ble to get anything done. He is very aggressive.

I understand he has been driving Court 2 c;rnzy and that you have referred him to the c:ommitlt:tt fi.Jr ;mulht!l look.

Woulll you con~ider filing a complaint directly with Rodney Gilstrap, the state •:'lair of !he committee? Hi~ address is P. 0.Drawer A. Marshall, Texas 75671. His email addre:os i$ g~S.l1Jtp1957®Yehoo.<Xlm, I am ar>l<ing this because we can't move the case In Houston.

Please now if you ~yquestions about this. 713-521~02e in ease you want to ~II. We would afl

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app~ut of the urts-trom Montgomery to B~oria eountle :; and everybody in between.

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http://b3.maiLyahoo.com/ym/rjblac;kJaw.corn/Showlcttcr?box=Inbox&;v..sgld..-560 1117... 1211312~91blt B - Page 5 of 5

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Appendix 1, First Amended Motion Disqualify Judge Wood A Certified Copy on Constitutional Grounds Attest: 10/30/2015 Page 36 of 84 Stan Stanart, County Clerk Harris County, Texas

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DlVISION

PERRY LEE WHATLEY § Plaintiffs, § § CIVIL ACTION NO. H-05-3860 v. § §

MYLUS JAMES WALKER, JR., ET AL § Defemlallt. §

DEFENDANT PROBATE JUDGE MIKE WOOD~S MOTION TO REMAND

TO THE HONORABLE JUDGE GILMORE:

Defendant, Judge Mike Wood, asks the court to summarily remand because

the plaintiffs' improvidently removed this case for purpose of harassment and

delay. Other grounds are shown as follows:

1. The under]ying case, 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, was filed April14, 2005. It is too late

to remove. 28 U.S.C. § 1446(b).

2. Plaintiff Michael Easton, pro se, fails to affirmatively assert that all

defendants have consented in writing to the removal.

Exhibit C Page 1 of6

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Appendix 1, First Amended Motion Disqualify Judge Wood A Certified Copy on Constitutional Grounds Attest: 10/30/2015 Page 37 of 84 Stan Stanart, County Clerk Harris County, Texas

3. · The state court contempt hearing Mr. Easton s~eks to avoid does not

anse under federal law, and does not present grounds for federal-question

jurisdiction. The federal court lacks subject-matter jurisdiction.

4. Plaintiff Michael Easton, pro se, has no standing in the probate court

or in this court. He claims that Ms. Whatley has assigned to him an interest that he

represents prose. In this court he claims.standing as" ... an intervenor as matter

of right in the State Court Proceedings, and an assignee in part of the assigned

claim of Dawn' Johnson Whatley." 1 As he alludes in his notice of removal at

footnote 4, Judge Guy Herman judicially determined on March 8, 2006, that Mr.

Easton has no standing as a party in the underlying probate matter. 2 Because he is

not a defendant in the underlying lawsuit, he has no·standing to remove.

5. Mr. Easton did not comply with Local Rule 81: Notices for removal

shall have attached only the following pocuments:

5.1. All executed process in the case; 5.2. Pleadings asserting causes of action, e.g., petitions~

counterclaims, cross actions, third-party actions, interventions and all answers to such pleadings; 5.3. All orders signed by the state judge; 5.4. The docket sheet; 5.5. An index of matters being filed; and

Document42, p. 3, Plaintiffs' Second Amended Complaint. Judge Hennan's Orders are attached as Exhibits A. B, & C.

Exhibit c Page 2 of 6

2

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Appendix 1, First Amended Motion Disqualify Judge Wood A Certified Copy on Constitutional Grounds Attest: 10/30/2015 Page 38 of 84 Stan Stanart, County Clerk Harris County, Texas

5.6. A list of all counsel of record, including addresses, telephone numbers and parties represented.

6. Mr. Easton does not get a free pass in state court because he claims to

be a plaintiff in this 42 U.S.C. § 1983 cause of action. The contempt hearing Mr.

Easton attempts to remove concerns his conduct as a pro se litigant in Judge

Wood's court. Judge Wood called Mr. Easton before the bar to explain why Mr.

Easton continues to send ex parte communications via email to Judge Wood's

personal email address, rather than the court's email address, after Mr. Easton was

expressly ordered by the court not to do so. The notice of removal was filed after

hours on March 8, 2006. The contempt hearing scheduled for 9:00a.m., March 9,

2006, was stayed pending remand. This is the fourth attempt to remove this case.

Judge Hughes summarily remanded. Judge Saris remanded. Judge Hoyt

remanded. Mr. Easton has a history of removal and mandamus actions. See

Michael Easton v. The Honorable John W. Peavy, 1998 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

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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

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

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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

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

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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

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

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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

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.n<i is hereby GRANTED. IT lS FURTilER ORDERED that the Clerk of the Court. shall forward a certified copy of this Order to:

. .··..

,

Presiding Judge Secood Administrative Judicial Region of Texas 301 N. Main, Suite 228

... Conroe, Texas 7130\

Fax No. 409 538-8167

Exhibit D

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Cause No. 2006-36929

SUN LIFE ASSURANCE § lN THE DISTRICT COURT PlaintiH, § §

vs. § HARRIS COUNTY, TEXAS §

MYLUS JAMES WALKER JR. § De.fendanl. · § 12Sn1 JUDICIAL DISTRICT

JUDGE MIKE WOOD'S REsPONSE TO THE INTERVENORS' MOTION TO VACATE INn:RLOCtrrORY ORDER OF DISMISSAL WJTJIOUT PREJuDICE

To the Honorable Senior Chief Justice Paul C. Murphy, sitting by designation:

1. Any claim under TliX. PROI!ATI! Cooe § 671 remains premature.

2. The intervenors' reliance upon Judge Underwood's ORDER ON MonoN TO

RECUSe APTER HEARING is misplaced.

3. Judge Burwell DENlED the intervenors' September 9, 2005 MOTION TO

DISQUAUFYIRECUSE 1111! HONORABLE MIK.B WOOD ON June 6, 2006. Her Order denying the

MonoN will be the law of the case if upheld on the intervenors' .pending direct appeal. Judge

Underwood'~ Order grants recusal on'similar i55ucs raised in the Seplember 9, 2005 MOTION TO

DISQUAUFY fRECUSE lliE 'HONOP.Ail.,'E MlKE WOOD.

Stage or the Proceedings

4. On April 13, 2007, lhi' court gran~d Judge Wood's Third Amended Plea to the

Jurisdiction, but left open the question of bond liability under Tnx. P'ROBATE CODE§ 671. The

court granted the intervenors leave to amend the bond issue, which rc:sulled in the 170-page Fifth

Amended Plc.u in Intervention. The amended plea raised no new cause of action against Judge

Judge Wood's Re$ponseto lntervenort' Motion to Vacate •.. Page I of !4

---------------·--··---,----·---·-----------

Exhibit E Page 1 of 29

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Wood. Nevertheless, Judge Wood responded to the amended pleading with his Fourth Amended

Plea to the Jurisdiction.

5. On July 27, 2007, the court dismissed without prejudice the intervenors' claims

under §671 and denied without explanation Judge Wood's 4th Amended Plea to the Jurisdiction.

6. On August 10, 2007, Judge Wood filed his first Motion for Summary Judgment.

The intervenors responded, Judge Wood filed his reply, and the coun has heard oral argument.

The court's decision is pending.

7. On Fchruary 5, 2008, Judge Underwood issued his 0ROF.R ON MOTION TO RECUSE

AFTER HEARlNO, finally granting the intervenors' motion to recuse Judge Wood.

8. Under the current stage of the proceedings the intervenors' latest motion is

another attack on Judge Wood's pending Motion for Summary Judgment. Judge Wood objects

to and asks the co1111 to strike all ellhibit.s attached to the intervenors' Motion to Vacate

Interlocutory Order of Dismissal Without Prejudice. For colllt records to be admissible as

evidence in support of a motion for summary judgment, copies of the records must be cenified. 1

Argument and Authorities

TEx. PltOBA.Tl! CODE § 671

Judge'& Duly

(a) The court shall use reasonable diligence to detefm\ne whethel a guardian Is performing all of the duties required of the guardian that penain to the guardian's ward.

(b) Tho judge, ot least annually, shell oxamlno tho well-being of each ward of the cour1 and the solvency of the bonds of tho guardians of tho estates.

(c) II atte1 e~amlntno the sol~en~y of a guaniian's bond under this sa~l.ion a judge d91ermlnss that the guardian's bond is not sufficient to protect the wa1d or the ward's estate, the judge shall require tho guardian ~o execute a now bond.

(d) The judge shall notHy the guardian and the sureties on the bond as provided by law. If damage or loss results to a guardianship or ward because of gross neglect of the judge to

Sptncer v. Ciry of Do/los, 819 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

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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<eno~· Motion to Vacate ... Pase 3 of 14

... ---~--.m------·->-<0~,.,.----··•""•-•-~n-~- . --.. . -

Exhibit E Page 3 of 29

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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

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§ 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

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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

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

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

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"W<Il!. Becau01e this motiM contained both reeuw ond disqut.liflc•uion llf'OIIno:h, and the motion wu referred ro the Pretiding Judge, )udge Wood di6 11111 til!I!!S bit marulmry dU\Y lo either rs;us bimsGI~ ~-Wol

Et!l ReiOior docs not choll•n11• Judge BU!Well'• foiluro to rule 011 !he September 9lll merion. Th••· "'"do not oddre:ss thi1 luue: or !he grou"d1 for rec:uul and di.qua}iflC'It)O(I turned in this mctioa.

Judge Wood's Response 10 lntervcnol$' Motioo to Vocate, .• Page 9 of 14

·-----------·-------

Exhibit E Page 9 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 52 of 84 Stan Stanart, County Clerk Harris County, Texas

b. "The Harris Counry Attorney responded on behalf of Judge Wood and filed a

motion ro quash rhe subpoen(J which included a request for sanctions." The only known

motion liJ quash wilh "an approprio.J.e ranctio11'' was filed to quash Daniel Shea's witness

. subpoena. Senior Assistant Coumy Attorney Frank Sanders filed the moti~Jn to quash on

August !J, 2005, and is discussed in detail in t'IIJ & 14, above. As noted and discussed

above, the prayer asked for "... an appropriaJe sanction entered pursuant to Cbapter 10 of the Texa.s Civil Practi~:e and Remedies Code."

c. "Once lhis request was made, Judge Wood was placed in an a.dvers!Jrial posture,

howtver ina.dvertelll, towards the movants arui effeclively reCusl!d him from sitting on

further procetdings in this case." "Adversarial posture" is ground for recusa.l, but not for j constitutional dlsqualitication.u "Adversarial posture" might include either TEx. R. Crv.

P. lBb(2} (a) or (b). But as to 18b(2}(b), su Ludlow v. DtBerry, 959 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

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 HEARo<O, Pebruary 5, 2008: 'Tbe record iJ>d)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

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.2<J 33! (1978); Mir.!eJ v.

Waco, 502 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

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'<O, February 3, 200S: ''Tbe record indicates tl1o1, !hro~>&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 • wellinfwmed , 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

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

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

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<ig~ of Prob•lc COW11'wo of Hlllli.s COUtlty, Tcxu, 11.11d Plttc11111hit II!Ot!O'II to qutPl&IUbpcena dlnctod lo bl111 in the abcvo captiootd eauao. In rupport ofLhh molloo, movtiDiwould show th~ !ollowi~~&:

A JllbjlOI:Ill WU ft:rVOd 011 MOVIII!

'· for I hearing at 1:30 p.m. on AU&\151 9, 2005, A

true 1111d cornet copy of 1M 111bpocna i• atlr.clled M;teto u l!Xhlbit A. MovD.nl h!18 oo knowl~ec of thiJ cue olller thw th lll!onnatloo Wl tnnrplr~ iD his pruenee while bo wu carryills out bit official dutiea u 1udgo of hit probale coWl. In 1M abJcnee of a / threihold thowins of Illy extraordinAry ci.rcum.llllllcu or Improper oonduct b>; 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

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<u Civil Practice and Remedic.s Code.

Rupl!(:\1ilfty trubll!lned,

MlX<.B STAPPOIU> 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

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

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

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.<l in a msndamus action that challenges tho judge's rcfuse.J to rCC\l,le himself.

Rtrpp v. Van Dw<l\ 350 F.ld &06, 810 (3d Cir.I96S); U.S. v. Craig. 815 F. S1opp. 816, 118 (S.D.

Fl&.l994). Jn Rtrpp, the co\ll1 of appeal• uid, "AJudgo who is cl!allenged by a rootio!lto recuse

1hould nolltir• hi1 ownlaw)llr or desiii!UI1a thelawytrs !or the rea! party in interest u hi a lawyer."

/d. at8!0 (cmpbuinddcd). In Craig, !he dl!tri<:l court lleld that lbechallengedjudge wu ~equlrcd

10 be r<~cu•od beeauae tho jud11c filed a brie!ln respo~~~e loa mande.mlll action follow ina tho judgo'•

refwal 10 recuse l!im3elf. "By tiline 1 ruponse, the judge m&de an appeU~J~Ce i" tbe e111e ll!d

beCfll\c aligned with the party Oppoaill,J recunL • !d. at 811. Sn also A.laander v. Prlmtrlca

Hg/dingt, Inc., 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

.. .. 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

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 IW<ml, did depose u followt:

"lam !be cowu~ for DAWN JOHNSON WHATI.EY, SpOil!lll! Dcaiii!ICO !dcr~tllitd In the plndlnp In tbl• cau, l IW over tho asc of ol&;bteeo (l ij yem, mantally 'DillJictcnt, am! not otherwi~ dlfqualliied by law from malc!nguofficlav!L I have read lhc abovund fol'tgoi~K Motion to D/.squalffi/Rictm lfonorab/c Mlu Wood. I lave flr~l hand bowledp of !hll r~ IC! forth thertin 111d !hoy m II'Ue and ~met lebo ~n!iY that Bxhibil "A" isl true. and com:ct topy of the Motion to Quuh Subpoena by Ronouhlc Mike Wood.''

A.l'FlANT SAYS NOniiNO P'URTHI!R.

'OANI!iLJ. SHBA

SUBSCRJBED AND SWORN TO BY DANIEL 1, SHEA Ibis llh day of September, 2005 to ccrt!~ whlcl\, witncu below my h!llld 111d sea! of ofllco,

NOTARlAl. SEAL Wl'Mi DA'Tl! OP IDCPIRATION:

A CEitTif'lED COPY ATTEST: FEB 12 2008 BEVERLY B. KAUFMAN, County Clerk HIIIYiJ County, Texas

~~~TI-2- . ='~~-./_Deputy ANNE)t. WOODS

Exhibit E

Page 22 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 65 of 84 Stan Stanart, County Clerk Harris County, Texas

Cj3RIIF!CAI.6 OF &ER)!!Qi

:rhl' is to cetti{)t !hill !he above and foregoing Molton 10 Dlsq~aii!YRtcwt Honorable Mlb Wood hat botn flied wi!h !h' Coun and provided to Ill! partiu·in·int~rNI or their altomey(s) of ~Old pllmlanlto Tax. It CIV .!'. 21 and further, that !he umo hat been wved pW'Sillllt 10 Tax. Jt Ctv. P. lla on !he !>lh 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

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

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ll!O'tl!iHTQ OVAIR lllptOJIIA !

To 1!11 RodOlo\11• JUdjplofSiid Covll:

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A·~ wu JUWd Nl Mw•t .,. • )M\r.lll lilt,..... Aqlllll P, 200t A

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OiruiM!4""'"""0J("'~ .;,_..,HWI!Op""""-'Y.IIIIINIJ¥11' 11 .,..loo\Oiltyioltllllll'"'"_"_'-l-""'""'lllolllo""""!Mr.""""'"' or .. fdo;>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'~ ..,,......'f7,....;41urroln•""'"'"••-WI"IUY-!'1W..,..,..,,.,.al~,

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~ C:Ull"IO eol'l' :~!:l:dd!.~&.fi~..="'i"'tJZ\..:t'" Ww~~~T..,N j EXHIBIT

i

•f\ , i l 'A,' 'j ' '·

A CERTIFIED COPY ATTEST: FEB 12 2006 BEVERLY'S. KAUFMAN, Counl)' Clerk Ha~tis Coumy, T~xas

Exhibit E

~~ ANNE WOODS R.

Deputy Page 24 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 67 of 84 Stan Stanart, County Clerk Harris County, Texas

HII'I!"IIIC<II'r

. . _T_ • :m.r,:,.,ti\Wot&:Laa ~~&~- DIA.O. a.J.IPIIIiiL

A CERT!!'!EDCOPY

ATTEST; FEB 12 2008 BEVERLY B. KAUFMAN, Co~nty Clerk Hanil Co\lnty, Texas

~R.~~ Deputy Exhibit E

Page 25 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 68 of 84 Stan Stanart, County Clerk Harris County, Texas

loA<o<oo~..nlpwlll•l...., wU..oti"'T'"""'ior

A CERTIFIED COPY

~1:-=2_20':-:08~

ATTEST: ___,.,.;F...,;;;E:,;;...,B BEVERLY B. KAUFMAN, Counly Clerk Harris Count)', Tc~~~

Exhibit E

Page 26 of 29

Dcpuly

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 69 of 84 Stan Stanart, County Clerk Harris County, Texas

NO. 355,095

GUARDIANSHJP OF TN PROBA Tt COURT NO, l

PERRY LEE WHATLEY, 01'

errATED PERSON IIARRJS COUNTY, TEXAS

3

ORDitR Dt.NYING MOTION TO JU:CUS!

On the 2"' day of November, 2005, cmo on to be oonsidcrcd l'crry Lee Whadoy and Down JC~hn&on Whatley's MoliC~n to Di:quallfy/Recwo The HonoBblo Mike Wood, ludgo,

Harris Councy Proball! Court No, Z (the "Reeufll Motion"), which wn filed on or about

September 9, 200S. After considering the motion, tho rolevanl ouo law, and the argu.mcmt of

coupsol, tho Court find• tbal, l:t the ebtoncc of An)' po.undl for. rccus&l, tho :RoOUia! M~tlon

ahould bo denlod. It Is, therefore,

ORDEJum that Perry LeD Whatley and Dawn Johnson Whatlcy'5 Motion to

Obquolify!R..:uao the Hooorablc Mike Wood, Judaa, Hlll'!'i• Counly Probate Count No, 2, which ' .

A CERTIPJED ATTEST;

F£8 l 2 2008

BEVERL VB. KAUFMAN, County Cle.rk Harris Couruy, Texas

Exhibit E

~~~Deputy

ANNE R. WOODS .

Page 27 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 70 of 84 Stan Stanart, County Clerk Harris County, Texas

ORDER ON MonoN TO RECUSE Arl'l:R Hi:.AIUNG

On January 24, 2001, O«rrla Olllo be hl'.ll:l"d, lh: Mo!lo11 to R.ocUM filed pllmlllllt to l h of the T~a.s Rules of C!vU Proeedure In 1he above ea!Jtiooed ca\IS8, Tho Coun ha.J considered~ nwtlon. !ts attach.ments,'thc c.ourt's ilk:, all evidcoec presantad, and all citations of authority• ... The reeard indicates mat, throiJ8ho~U Uic lana and ~OliVo luted hillol')' of lhh caac, l.b.c Ho11orablo Michael Wood' abehavior performllilec as a judge lw ~ thougbt1'tll, Ullblued, wl impart!~. Ho has \locn a wc\l·informcd, wcll•pn:p8.11:d aeutral jurist who w do.ac nolh.i.D1 on the bench thill would 'IYII'TI!It m:-usa.l, The moving patties have gone so far 11.!1 to sue Judge Wood in federal co!.ITI. md attcmp1ed to subpoena him to testifY ill that &etlo!l. 1'hc Hllrril County Attomoy responded on b~f of ! '

1ud~ Wood Dlld flied u motion to quash the su'opaC1lA wblc:h.lnclud.ed a request for Sllllllliollll. Once lhls request W1il made. Judac Wood Willi placed in 111 a.dvernrlalposture, however lna.dvem:u. 1.0wa:ds the movants and cffe~tively recu.sed hlm from sitting on fUrthct ~edlngt ln 1blJ case.

ThcreCore, !T IS ORDERED t.bM the Motion to Rocwe 'o~ aAd b hereby iJR.AN'I'SD. IT IS FURTHER ORDERm that the Clerk of the Court shall fomd a tertified copy of

Preaiding 1udso Second Admlnlavativa 1u11iei&l Rllsion ofT~ 301 N. Maln, Suite 228 COIU'00 1 TexiiJ 17301 fu No. 409 538·8\67

SIGNEDthl1

A CERTIFIED COPY AT1'EST: fEB 12 2008 BEVERL V""s"'".""K,..,.A""'U=FM,..,.,.,AN,.;.,....,_C:-ou.;;;n.;;..ly~C~le-:-rk- Hartls County, Texas

Exhibit E

Page 28 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 71 of 84 Stan Stanart, County Clerk Harris County, Texas

Second Administrative JU:dicial Region of Texas Olen Underwooa

Preaidinf Judj!o

'IG.#rl c.. ..J;D M•Uuut /ai!Mtl RA,;;-/.AJmi,.;,p,..fo~ R..,,·-l.t!..ui.lloPit

Febfuary s, 2008

Co1111ty Clerk:, Hanb Coun1.y VlA FACSIMILE

At!ached plwo ftnd ORDER ON MOTION TO RECUSE (n Cause No.355,09S; In Rc: The Perwn110d Esla:l~ o!Pcrry Lee 'Whatley, A PrO')!Osed Wlll'd: Probau: Court No.2 o!Harr!a C01111ry, TCXA!!.

P!euc file tn your nonnal J!Wlllef a.nd mum ~py to ~ office.

cc: Harris County l'nlblle Court No.2 Roy FUller V1A FACSlMILE VIA FACSIMJI..B

Slml:~Nol'lllllll Ray Black:, Jr. VlA PACS!MILB vv; F!~CSIMlLE Oary M. Ricbschlagcr JlmmyWalbt VIA FACSrMTLI VIA FACS!Ml.LE

20'111'"11 ~. n'"' F~c>M c....-. r- .77Ml rt

~) 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

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

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.

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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.

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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

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

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

·--· ····----------

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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

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

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 received 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 lawsuit 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

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.<lt03ln part: Plca:>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 Department , 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

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)' <Mlewls@itc.c:o.harris,tx.us> 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, RR James Chose Hon. Sebesta First Page 1 of 7

Appendix 5, RR James Chose Hon. Sebesta First Page 2 of 7

Appendix 5, RR James Chose Hon. Sebesta First Page 3 of 7

Appendix 5, RR James Chose Hon. Sebesta First Page 4 of 7

Appendix 5, RR James Chose Hon. Sebesta First Page 5 of 7

Appendix 5, RR James Chose Hon. Sebesta First Page 6 of 7

Appendix 5, RR James Chose Hon. Sebesta First Page 7 of 7

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

Courts Property Records Personal Records Other

Probate - November 1837 to present

··-··-··----

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available

Case Number: .441165 from Sept. 1, 1999 to present

105 Event Record

I (s) -I @Party ~. Attorney -- - - - - - - - - - - - - - - - - Found.

Name

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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

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ATTEST: NOV 0 2 20115 STAN STANART, County Clerk Harris County, Texas Appendix 9, Probate Clerk Docket for 441165 Page 1 of 8

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FlUNG FEE

441165 07/08/2015 Citation Issued 1 PERS BY IN RICHARD STEPHEN

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441165 07/09/2015 PW-LT-Posting PBT-2015-

1

222996

441165 07/09/2015 Basic Personal-RICHARD STEPHEN CALKINS, 7400 PBT-2015-

Out I Private BELLERIVE, #704, HOUSTON, HARRIS 1 222999

COUNTY, TEXAS 77036 BY P/P 441165 07/09/2015 BASIC- PHILLIP CALKINS STRAUSS, 200 PBT-2015-

CERTIFIED MAIL BOHLS ROAD, WIMBERLY, HAYS 1 223004

Personal COUN:YY, TEXAS 78676 BY CERT MAIL 441165 07/13/2015 Application to PBT-2015-

46

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Hearing 229301 441165 07/14/2015 Notice of PBT-2015-

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Temporary OF TEMPORARY ADMINISTRATION 22 232700

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http://www.hcclerk.net/applications/masterinquiry/Probate.aspx 11/2/2015

A CERTIFIED COPY

ATTEST: - - - - - - - - STAN STANART, County Clerk Harris County, Texas Appendix 9, Probate Clerk Docket for 441165 Page 2 of 8

441165 07/17/2015 Contest to a Will ANSWER & WILL CONTEST OF (Indep.) RICHARD STEPHEN PBT-2015-

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JAMES AS TEMPORARY ADMINISTRATOR OF THE ESTATE OF MARY OLIVE HULL CALKINS

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APPLICATION FOR APPOINTMENT OF PBT-2015-

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JUDGE MIKE WOOD

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ATIEST: - - - - - - - STAN STANART, County Clerk Harris County, Texas Appendix 9, Probate Clerk Docket for 441165 Page 8 of 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

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

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

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

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

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

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

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

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

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 actionin 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

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

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

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

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

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

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

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

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 Dis<t"a1ificatif>n. 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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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, Ms. James Motion Recuse Hon Butts and Consolidate Page 41 of 41

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."~~ \.,.' CAUSE NO. 441,165 r.n "u" ·~- -~·-

IN THE ESTATE OF § IN PROBATE COURT t..~-' '\ .,~ ... § MARY OLIVE HULL CALKINS, § NUMBER FOUR OF ,.~~

\.,.' § ~'J DECEASED § HARRIS COUNTY, TEXAS co !"'\

\,(\ ORDER GRANTING APPLICANT'S MOTION TO RECUSE (:) l\1 C:'J Came onto be heard, the Applicant Carolyn Calkins James's Motion to Recuse the Honorable ·"' ;,.,) 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.

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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

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

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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 6, Hon. Sebesta Voluntary Recusal From All Calkins Cases Page 1 of 1

Appendix 6, Hon. Weiman Order Dismiss James Case Due Lack Standing & Lack of Capacity Page 1 of 2

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

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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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, Order Denying Motion to Recuse and Disqualify Page 1 of 1

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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, Judge Wood Order Referring Motion Recuse and/or Disqualify Page 1 of 1

Appendix 12, Sept. 9, 2015 Motion Recuse and/or Disqualify Page 1 of 6

Appendix 12, Sept. 9, 2015 Motion Recuse and/or Disqualify Page 2 of 6

Appendix 12, Sept. 9, 2015 Motion Recuse and/or Disqualify Page 3 of 6

Appendix 12, Sept. 9, 2015 Motion Recuse and/or Disqualify Page 4 of 6

Appendix 12, Sept. 9, 2015 Motion Recuse and/or Disqualify Page 5 of 6

Appendix 12, Sept. 9, 2015 Motion Recuse and/or Disqualify Page 6 of 6

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ECOURT .(l?

No. 441165 ...

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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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