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Texas Justice System: Disqualification Quandary Exposes Declared Court Bias

Disqualified or Not? Judges Allegiances Trump Recusal Laws, Critics Say. A series of recent orders signed by Judge Susan Brown challenged.

LIT COMMENTARY

In the hallowed chambers of justice, where the scales of truth and fairness ought to be unwavering, a resounding call reverberates: the judiciary bears a steadfast responsibility.

It matters not which side of the table you find yourself seated, for the sanctity of the law must be upheld without falter. The very essence of justice rests upon a foundation unyielding to bias or manipulation.

Yet, as the years have passed and our gaze has remained fixated on the corridors of Texas courts, a disheartening truth emerges – a truth that casts a shadow over the pillars of jurisprudence.

The echoes of manipulated opinions resound, reverberating through the chambers where decisions of profound consequence are reached. The rule of law, once a beacon of hope for all, now stands tainted by the fingerprints of those who would dare to wield their power to bend it to their will.

In a world where justice should be blind, where the merits of a case should stand alone, we witness a distressing spectacle unfold. Opinions penned with a heavy hand, words carefully selected not to uphold truth, but to serve the agenda of those who hold the gavel.

The very essence of justice violated, as the tapestry of facts woven before the court is unraveled, rewoven to tell a different tale – a tale divorced from the reality that binds us all.

It is a grievous stain on the robe of justice, a betrayal of the trust bestowed upon those appointed to stand as bastions of impartiality.

As their elevated positions shield them from the mundane struggles of the average citizen, a chasm widens – a chasm between their realm of privilege and the world where truth and consequences converge.The time has come to cast a glaring light upon this lamentable reality.

Let our voices rise above the hallowed halls, resounding with a demand for accountability and integrity. Let the lament of a justice system straying from its noble path be heard, as we hold those who bear the weight of judicial authority to the unyielding standard of truth. For justice without truth is but a hollow charade, a mere semblance of what it ought to be.

Let us unite in our call, demanding a return to the principles that underpin our society. Let us champion a judiciary that stands resolute in its commitment to upholding the law, unswayed by agendas and unshaken by power.

Only then can we hope to bridge the chasm, restoring a justice system that truly serves the people – all the people – with the honor and dignity it deserves.

IN RE JOHNNIE PATTERSON AND MICHELLE FRAGA

PETITION FOR WRIT OF MANDAMUS

DEC 27, 2022 | REPUBLISHED BY LIT: AUG. 22, 2023

ADOPTION OF MANDAMUS AND PETITONS ALREADY ON FILE WITH THE SUPREME COURT

This Petition for Writ of Mandamus presents the same issue as in

In re Stephanie Alvarez et al. (case number 22-1073 filed November 30, 2022) (Denied)

as in the four Petitions for Review currently pending before this Court:

Supreme Court Petitions No. 22-0754,

TERRY FISHER, 829 YALE ST., LLC, AND ASSURANCE HOME WARRANTY GROUP, LLC v. STEADFAST FUNDING LLC, ET AL. (Denied)

No. 22-0755,

BRAD PARKER  v. STEADFAST FUNDING, LLC., ET AL. (Denied)

No. 22-0756

TERRY FISHER, 829 YALE, LLC AND ASSURANCE HOME WARRANTY GROUP, LLC v.STEADFAST FUNDING, LLC., ET AL (Denied)

and

No. 22-0758

KVAC HOLDING COMPANY, LLC, KAVAC HOLDING, LLC, CITY SCAPE RENTALS, LLC, TERRY FISHER, 829 YALE, LLC ALEN J. FISHER AND ASSURANCE HOME WARRANTY GROUP, LLC, JAMES D. PIERCE v. STEADFAST FUNDING, LLC., ET AL.(Denied)

Relators adopt the facts, arguments and record presented in the four Petitions for Review and the Petition for Writ of Mandamus

(In re Stephanie Alvarez et al. case number 22-1073) supra.

On December 21, 2022, the Real Parties filed a response to the four Petitions, supra, simply mirroring the First Court’s opinion that once the administrative judge issued her order the appellate courts were immediately stripped of jurisdiction.

The First Court’s opinion begins with what they are trying to end with; the judge is disqualified therefore there is no final judgment and thus no jurisdiction.

However, this circulus in probando logic defect is caused whereby the premises are just as much in need of proof or evidence as the conclusion.

The First Court’s premise, the judge is disqualified, ignores the fact that no evidence or proof exist of any grounds at all to disqualifying the judge.

Even according to their logic, if no grounds exist to support disqualification, then the appellate court has jurisdiction over the final judgment being appealed by the Real Parties.

The conundrum created by the First Court’s decision is that there can never be a direct appeal because there can never be a “final” judgment.

In the absence of a “final” final… judgment, no court has jurisdiction to even ask the administrative judge to clarify her order or to identify the grounds supporting disqualification.

Under the First Court’s rational, there can never be a de novo review ever to even determine if the premise has any evidentiary support at all, that being: do grounds actually exist to support disqualification?

If the First Court’s opinion prevails, any party to an ambiguous administrative judge’s order like this would suffer the plight of Bill Murray in Groundhog Day—devoid of a past and a future, doomed to the confines of the present.

To avoid such a “Groundhog Day” phenomenon, Realtors file this Petition for a Writ of Mandamus pursuant to Rule 18a(j)(2) which provides that an order granting disqualification is reviewable by mandamus.1

Given the “Wilderness of Mirrors” created by the First Court’s decisions, Relator’s assert a court always has jurisdiction to consider its own jurisdiction.

In addition, given the express provision in Rule 18 that disqualification is reviewable by appeal, the Court should require proof of one of the three constitutional grounds mandating disqualification before “voiding” a Final Judgment which creates the present conundrum.

The first three First Court of Appeal’s decisions are identical per curiam memorandum opinions:

1) Terry Fisher v. Steadfast Funding, LLC, No. 01-20-

1 See TEX. R. CIV. P.18a(j); In re O’Connor, 92 S.W.3d 446, 450 (Tex. 2002)(orig. proceeding); In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998)(orig. proceeding);In re Wilhite, 298 S.W.3d 754, 757 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding);In re Rodriguez, 583 S.W.3d 268, 269(Tex. App.—Corpus Christi–Edinburg 2019, orig. proceeding) (mem. op.) (“As applicable to this case, the denial of a motion to recuse can be reviewed only on appeal from a final judgment; however, the denial of a motion to disqualify is reviewed by mandamus and may be appealed in accordance with other law.”).

00190-CV, 2022 WL 2513475 (Tex. App.—Houston [1st Dist.] July 7, 2022, no pet.h.)  (per curiam) (mem. op.), Petition No. 22-0756, 2) 2017 Yale Dev. Inc. v. SteadfastFunding, LLC, No. 01-20-00188-CV, 2022 WL 2513465 (Tex. App.—Houston [1st Dist.] July 7, 2022, no pet. h.) (per curiam) (mem. op.), Petition No. 22-0755, and KVAC Holding Co. v. Steadfast Funding, LLC, No. 01-20-000189-CV, 2022 WL 2513470 (Tex. App.—Houston [1st Dist.] July 7, 2022, no pet. h.) (per curiam) (mem. op.), Petition No. 22-0758.

In its initial decisions, First Court refused to even consider if there were any grounds to constitutionally disqualify Judge Carter.

In its final decision, the First Court simply accepted Judge Carter’s disqualification as a fait accompli and voided the final judgment in favor of Relators.

STATEMENT OF THE CASE

·        Adoption by Reference

Relators adopt by reference the Petition for Writ of Mandamus filed on November 30, 2022 in In re Stephanie Alvarez et al. in case number 22-1073 and the facts, arguments and record presented in the Supreme Court Petitions for Review No. 22-0754, No. 22-0755, No. 22-0756 and No. 22-0758.

As discussed in those four Petitions, on June 25, 2019, the 125th District Court of Harris County, Judge Carter presiding, dismissed all claims against Real-Parties- in-Interest (“Real Parties”) and issued a Final Judgment in Relators’ client’s favor pursuant to the TCPAand Rule 91(a).

The Real Parties appealed that Final Judgment to the First Court of Appeals in case NO. 01-19-00555-CV.

Six months after the Real Parties’ appeal was perfected and after all briefing was complete, on January 6, 2020, the Real Parties filed a motion to recuse/disqualify Judge Carter in three separate cases.

The Real Parties also filed two more cases which were virtually identical.

In trial court number 2019-51432, Real Parties sued as parties the attorneys’ that represented parties in the cases they previously filed.

·        Disqualification vs Recusal in Texas

Although Real Parties use the term “disqualification” interchangeably with “recusal,” they never made any allegation, nor did they provide any proof, that Judge Carter was a lawyer on the case, or that he had a financial interest in the outcome of the litigation,2 or that he was related by a third degree of consanguinity to any party.

On February 7, 2020, Judge Susan Brown, the administrative judge of the 11th administrative region (“administrative judge”), while acting as Presiding Judge of the 125th Judicial District Court, signed the single vague order below:

2 Cameron v. Greenhill, 582 S.W.2d 775, 776 (Tex.1979)( “It is a settled principle of law that the interest which disqualifies a judge is that interest, however small, which rests upon a direct pecuniary or personal interest in the result of the case).” See Williams v. City Nat’l Bank of Quanah, 27 S.W. 147, 148 (Tex.Civ.App.-Fort Worth 1894, no writ)(concluding that ten shares in bank that was party to suit disqualified trial judge).

The administrative judge’s order, supra, did not explicitly “disqualify” Judge Carter.

It is a vague order that even the First Court of Appeals could not determine what it meant.3

On February 25, 2020, the First Court denied a Petition for Writ of Mandamus on this issue without explanation.4

After a full transcript and a full record was obtained, Relators filed5 another Petition for Writ of Mandamus asking for the same review. 6

On September 3, 2020, again without even requesting a response, the First

3 In Footnote 1 in all three opinons, 2022 WL 2513475, 2022 WL 2513465, 2022 WL 2513470, the First Court states, “To the extent that the administrative judge granted a motion to disqualify,…”

4 In re 829 Yale, LLC, et al., Nos. 01-20-00134-CV, 01-20-00135-CV, 2020 WL 894408 (Tex. App.—

Houston [1st Dist.] Feb. 25, 2020, orig. proceeding) (per curiam) (mem. op.). Original panel consisted of Chief Justice Radack, Justice Goodman and Justice Kelly. Justice Hightower replaced Justice Kelly on the other panels.

5 See In re Craig Anderson, 2014 WL 3513123 (Tex.App.-Houston [14th Div.] 2014, orig. proceeding) (per curiam)(dismissing mandamus for lack of transcript of evidentiary hearing).

6 In re 2017 Yale Dev., et. al., Nos. 01-20-00481-CV, 01-20-00482-CV, 2020 WL 5269422 (Tex. App.—Houston [1st Dist.] Sept. 3, 2020, orig. proceeding) (per curiam) (mem. op.).

Court curtly dismissed the second mandamus7 and refused to even ask the administrative judge to clarify her order.

·        “To the extent that…”

Relators also timely filed a direct appeal.8

In a footnote the First Court states, “[t]o the extent that the administrative judge granted a motion to disqualify, such order has the effect of voiding any orders or judgments rendered by the disqualified judge.”9

Taking that “guess” as its premise, the First Court then “guessed” that Judge Carter’s disqualification is an established fact and remanded all of the cases back to the trial court without instruction on how to proceed.

STATEMENT REGARDING ORAL ARGUMENT

This is such an easy case to resolve.10 It can be done without oral argument. And yet Real Parties in their Response11 refused to identify even one single ground

7 TRAP 52.8(b) says that if the appellate court is of the tentative opinion…that a serious question concerning the relief requires further consideration… the court must request a response if one has not been filed. TRAP 52.8(a) states, “[i]f the court determines from the petition and any response and reply that the relator is not entitled to the relief sought, the court must deny the petition.” The First Court denied two Petitions for Writ of Mandamus with the same “per curiam” opinion: In re 829 Yale, LLC, Nos. 01-20-00134-CV, 01-20-00135-CV, 2020 WL 894408 (Tex. App.—Houston [1st Dist.] Feb. 25 2020, orig. proceeding) (per curiam) (mem. op.); In re 2017 Yale Dev., Nos. 01-20-00481-CV, 01-20- 00482-CV, 2020 WL 5269422 (Tex. App.—Houston [1st Dist.] Sept. 3, 2020, orig. proceeding) (per curiam) (mem. op.).

8 Relators requested the First Court consolidate the appeals. The First Court dismissed Relators’ motion as moot.

9 Footnote 1 in 2022 WL 2513475, 2022 WL 2513465, 2022 WL 2513470, (emphasis added), trial court cause numbers 2019-23950, 2019-51432 & 2019-59191.

10 Merritt v. Douglas, 2010 WL 2880205 (Tex.App.- Dallas 2010, pet. denied)(mem.op.)(Dallas Court noted Relator could not point to evidence in the record of grounds to disqualify trial judge)

11 Response to Petiton for Review filed on December 21, 2022 supporting disqualification.

Why? Because NONE exist. Real Parties’ “hide-the- ball” approach to accusing a judge of criminal activity and then pretending he might be “disqualified” is absurd.

To resolve the jurisdictional issue, all that is required is for the Real Parties to direct this Court to that part of the Feb. 2020 transcript of the hearing conducted by the administrative judge to evidence of any one of the three grounds that mandate constitutional disqualification under Article V, section 11 of the Texas Constitution:12

1) that judge Carter was a lawyer on the case,13

2) that judge Carter has a financial interest in the outcome of the litigation14,

or

3) that judge Carter is related by a third degree of consanguinity to any party.15

Real Parties did not, and can never, do that because none of those grounds exist.

The administrative judge’s order is so fundamentally improper it warrants immediate reversal without necessity of oral argument.

Relators believe the lack of grounds to support the disqualification order is so obvious as to warrant mandamus relief without oral argument.

However, Relators respectfully request oral argument if it would assist the Court due to the unusual procedural history of the cases.

The issues raised are important to the jurisprudence

12 Rule 18b(1)(a) of the Texas Rules of Civil Procedure.

13 See Tesco Am., Inc. v. Strong Indus., Inc., 221 S.W.3d 550, 555 (Tex.2006).

14 A judge is “interested” in a case—and thus disqualified under Article V, Section 11—if an order or judgment in the case will directly “affect him to his personal or pecuniary loss or gain.” Elliott v. Scott, 119 Tex. 94, 25 S.W.2d 150, 152 (1930). “The interest must be direct and immediate, and not contingent, remote, or speculative.” Roach v. Ingram, 557 S.W.3d 203, 215 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).

15 “Consanguinity” is a defined term in Chapter 573 of the Texas Government Code.

of the State of Texas especially as it relates to a trial court’s discharging their duty in ruling on motions only that are properly pending before them.

TEX. R. APP. P. 39.1.

STATEMENT OF JURISDICTION

This Court has jurisdiction to issue a writ of mandamus pursuant to §22.221 of the Texas Government Code and Texas Rule of Civil Procedure18(j)(2). Disqualification is a constitutional issue.16

Only three grounds exist to warrant disqualifying a judge: “personal financial interests, connection to the parties, or “counsel  in the case.”17   Rule 18a(j)(2) provides that an order granting disqualification is reviewable by mandamus.18

The Court has jurisdiction to issue a writ of mandamus because this case presents a question of importance to the jurisprudence of the state.

The effect of issuing an ambiguous order that may or may not “constitutionally disqualify” a sitting judge and then the appellate court’s role in reviewing such an order is a case of first impression that is likely to continue to recur, especially of the First Court’s

16 See W. Kilgarlin & J. Bruch, Disqualification and Recusal of Judges,17 ST. MARY’S L.J. 599 (1986)

17 Tesco Am., Inc. v. Strong Indus., Inc., 221 S.W.3d 550, 555 (Tex.2006).

18 See TEX. R. CIV. P.18a(j); In re O’Connor, 92 S.W.3d 446, 450 (Tex. 2002)(orig. proceeding); In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998)(orig. proceeding);In re Wilhite, 298 S.W.3d 754, 757 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding);In re Rodriguez, 583 S.W.3d 268, 269(Tex. App.—Corpus Christi–Edinburg 2019, orig. proceeding) (mem. op.) (“As applicable to this case, the denial of a motion to recuse can be reviewed only on appeal from a final judgment; however, the denial of a motion to disqualify is reviewed by mandamus and may be appealed in accordance with other law.”).

opinion stands.

The lower courts and the administrative judges do not understand the difference between a recusal and a disqualification and are being confuse by the federal system that uses them interchangeable without any “voiding” effect.19

There is no statewide uniformity in the handling of disqualification of a trial judge when the case is already on appeal.20

The courts of appeal are misled or confused by their review of an order or motion seeking to disqualify a trial judge and confused as to what is required of them in regards to a de novo review.

The court of appeals opinion confuses the deference that should be given to an administrative judge’s order that is vague and ambiguous in regards to granting disqualification.

The courts are divided on how to handle an apparent disqualification with the First Court’s decision opposite that in other courts such as the Austin court, discussed infra.

Finally, the First Court’s decision not to review the record de novo to determine if grounds actually exist to disqualify Judge Carter conflicts with long-standing precedent.21

ISSUES PRESENTED

A.                      Whether a Court of Appeals can simply guess as to whether an administrative judge intended to constitutionally disqualify a trial judge.

19 In fact, many courts refer to “disqualification” and are not referring to constitutional disqualification. See Garcia v. Employers Ins. of Wausau,856 S.W.2d 507, 508 (Tex.App.—Houston [1st Dist.] 1993, writ denied)(Therefore, once a party files a timely objection to the assignment of a judge under section 74.053, the disqualification of the judge is mandatory).

20 See In re Garcia, 2012 WL 3792112 (Tex.App.- Corpus Christi 2012, orig. proceeding)(mem.op.per curiam)(“The current rules of procedure do not provide a governing standard of review for orders

regarding disqualification.” …allowing review of an order granting or denying a motion to disqualify by mandamus or appeal “in accordance with other law”).

21 Fuelberg v. State, 410 S.W.3d 498, 503 (Tex. App.—Austin 2013, no pet.); McElwee v. McElwee, 911 S.W.2d 182, 185 (Tex. App.—Houston [1st Dist.] 1995, writ denied).

B.                      Whether a Court of Appeals can simply assume that an administrative judge intended to constitutionally disqualify a trial judge.

C.                      Whether an Administrative Judge can disqualify a judge when the court has lost plenary power over the case and thus Respondent lacks jurisdiction.

D.                      Whether an Administrative Judge may disqualify a judge without pleading or proof asserting of one of the three Constitutional grounds for disqualification contained in article V, section 11 of the Texas Constitution. TEX. CONST. art. V, § 11; TEX.R. CIV. P. 18a, 18b.

E.                      Whether and Administrative Judge may issue a retro-active order disqualifying or recusing a judge in a case that has been finally disposed and has been appealed to the Court of Appeals.

F.                       Whether an Administrative Judge may issue a retro-active order disqualifying or recusing a judge in a case that has been finally disposed and was not timely appealed.

PROCEDURAL BACKGROUND

I.                  Judge Carter Dismisses Duplicate Cases as Forum Shopping

The Real Parties engaged in forum shopping by repeatedly filing the same case. Real Parties added Relators (lawyers representing clients in the other cases) in case number 2019-51432. On November 13, 2019, Judge Carter dismissed trial court no. 2019-5919 as a sanction for forum shopping.22 Judge Carter granted Realtor’s dismissal with prejudice in case number 2019-51432.23 Real Parties did not file a timely motion for new trial.24 Case number 2019-51432 became a final judgment as of December 14, 2019.

II.               After Plenary Power Gone, Real Parties File Motion to Recuse/Disqualify

Not until January 6, 2020 did the Real Parties file a motion to recuse/disqualify Judge Carter.25 On February 7, 2020, the administrative judge issued the vague order supra. As the Court can see, that order is unclear if she only meant to grant “recusal,” or if she also intended to grant a constitutional “disqualification.” The administrative judge refused several requests to clarify her order and refused Relator’s request to issue findings of fact and conclusions of law.

22 See Order Dismissing Suit Three attached as Tab D.

23 See Judgment Dismissing with Prejudice, attached as F.

24 On December 16, 2019, Real Parties filed a Motion to Reconsider. However, this motion was filed more than 30-days after the final dismissal with prejudice on November 13, 2019 and would therefore not have extended the Court’s plenary power.

25 Trial Case No. 2019-23950, First Court Cause No. 01-19-00555-CV, First Court opinion citation, 2022 WL 2513466.

III.           First Court Confused “Recusal” and “Disqualification”

On November 3, 2020, the First Court said it would dismiss all appeals for lack of jurisdiction because a “recusal” was not reviewable by appeal.26 The First

Court did not consider the distinction between a “recusal” and a “constitutional disqualification.”27 The Texas Government Code and Rule 18a(j)(2) provide that

unlike a “recusal,” an order granting disqualification is reviewable by mandamus and/or appeal.28

ARGUMENT

IV.            Only Three Grounds Warrant Disqualification

“Since 1845, judicial disqualification in Texas has always been a matter of constitutional dimension.”29 Article V, section 11 of the Texas Constitution governs judicial disqualification.30 There are only three grounds in Texas to constitutionally disqualify a judge: 1) the judge was a lawyer on the case, 2) the judge has a financial interest in the outcome of the litigation, or 3) the judge is related by a third degree

26 The First Court was referring to Rule 18a(j)(1)(B), (2) of the Texas Rules of Civil Procedure which provides that an order granting recusal cannot be reviewed by appeal or mandamus. The First Court actually dismissed one of the appeals but later reinstated the appeal.

27 Id.

28 See TEX. R. CIV. P.18a(j); In re O’Connor, 92 S.W.3d 446, 450 (Tex. 2002)(orig. proceeding); In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998)(orig. proceeding);In re Wilhite, 298 S.W.3d 754, 757 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding);In re Rodriguez, 583 S.W.3d 268, 269(Tex. App.—Corpus Christi–Edinburg 2019, orig. proceeding) (mem. op.) (“As applicable to this case, the denial of a motion to recuse can be reviewed only on appeal from a final judgment; however, the denial of a motion to disqualify is reviewed by mandamus and may be appealed in accordance with other law.”).

29 Tesco Am., Inc., 221 S.W.3d at 551.

30    Rule 18b(a) of the Rules of Civil Procedure clarifies when a judge is disqualified, but the statute “expounds” rather than “expands” the Constitution.” Tesco Am., Inc., 221 S.W.3d at 553.

of consanguinity to any party.31 In Texas, disqualification, as opposed to recusal, has the effect of “voiding” discretionary orders and judgments.32 Because of this unique Texas effect of “voiding” orders or judgments, an order granting disqualification may be reviewed by mandamus and/or by direct appeal.33

V.                 Real Parties Cannot Identify Any Ground to Support Disqualification

It is undisputed that Judge Carter was never a lawyer on the case.

It is undisputed that he has never had a financial interest in the outcome of the litigation.

It is undisputed that that he is not related by a third degree of consanguinity to any party.34

As such, the First Court’s handling of the appeal of the Administrative Judge’s Order is nothing short of a farce; a comedy with ridiculous and absurd consequences.

Logic dictates that if there never were any grounds to support Judge Carter’s disqualification, then no jurisdiction exists to remand the case to the trial court in which a final judgment was issued and not appealed.

A trial court is without jurisdiction to do anything further in such a case.

Any judgment issued after remand would be “void”?

So why would any appellate court remand a case to a trial court

31 TEX. CONST.art. V, § 11; TEX. R. CIV. P. 18b(a).

32 In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998)(orig. proceeding). The federal rules do not distinguish between disqualification and recusal because there is no “void” effect.

33 TEX. R. CIV. P. 18a(j)(1)(B), (2).

34 TEX. CONST.Art. V, § 11; TEX. R. CIV. P. 18b(a).

that does not have jurisdiction to do anything else in the case?

Does such a case drift into the Twilight Zone and just languish in limbo forever?

What is to be done if there are two “final” judgments and if they are inconsistent?

Which judgment is to prevail?

At what point does an appellate court actually deal with “jurisdiction.”

At what point can the underlying issue of whether grounds exist to disqualify the trial judge actually be reviewed?

This illogical spiral the First Court has created is nothing less than a “Wilderness of Mirrors” as to jurisdiction that never has a resolution.

The Supreme Court directs that appellate courts have jurisdiction to determine that an order or judgment underlying an appeal is void and make appropriate orders based on that determination.35

Appellate courts must consider the facts regarding their jurisdiction.36

The Texas Supreme Court has consistently instructed courts that they “are obligated to review sua sponte issues affecting jurisdiction.”37

If disqualification would render void a judgment upon which the appellate court’s jurisdiction is based, then the First Court was obligated to review the record before

35 Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012); State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex.1995); Univ. of Tex. Sw. Med. Ctr. of Dallas v. Margulis, 11 S.W.3d 186, 187 (Tex.2000) (per curiam).

36 Tex. Workers’ Comp. Comm’n v. Garcia,893 S.W.2d 504, 517 n. 15 (Tex.1995); Tex. Gov’t Code Ann.

§ 22.220(c) (West 1988)(A court may ascertain matters of fact necessary to proper exercise of its jurisdiction).

37 M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex.2004)(per curiam).

it to determine of grounds existed for any such disqualification.38

How is it possible for the First Court to have dismissed two Mandamus Petitions without even requesting a response and then later declare it can’t decide in a direct appeal whether or not Judge Carter was properly disqualified?

Flashback:

Above the Law State Bar President-Elect Randall O. Sorrels Walks Out of Video Deposition

VI.            Why Not Simply Ask Administrative Judge to Clarify Order?

The simplest response to the two Mandamus Petitions and the direct appeals was for the First Court to compel the administrative judge to clarify her ambiguous order.

The second, less efficient but more effective, path was for the First Court to conduct a de novo review of the “record” which included a full transcript of the evidentiary hearing.

The test for disqualification is “objective;” either one of the three grounds exist or it doesn’t. 39

Whether a judge is disqualified is a question of law that courts review de novo.40

There is no discretion.41

In the absence of proof of one of these three grounds to disqualify a trial judge, there was no basis for the First Court to void the Final Judgment in trial court case number 2019-23950.

VII.       First Court “Guesses” as to Jurisdiction

38 Disqualification is a question of law and the review is de novo. Fuelberg v. State, 410 S.W.3d 498, 503 (Tex. App.—Austin 2013, no pet.); McElwee v. McElwee, 911 S.W.2d 182, 185 (Tex. App.—Houston [1st Dist.] 1995, writ denied).

39 Tex.RuleCiv.P. 18a(j)(2)

40 Fuelberg v. State, 410 S.W.3d 498, 503 (Tex. App.—Austin 2013, no pet.); McElwee v. McElwee, 911 S.W.2d 182, 185 (Tex. App.—Houston [1st Dist.] 1995, writ denied).

41 Id.

On July 7, 2022, the First Court denied all three appeals related to the “possible” disqualification order. 42

The First Court admits that the administrative judge’s order is ambiguous because in a footnote it states:

“[t]o the extent that the administrative judge granted a motion to disqualify, such order has the effect of voiding any orders or judgments rendered by the disqualified judge.” 43

That phrase, “to the extent,” is conclusive proof that the administrative judge’s order is ambiguous.

It is also proof that the First Court failed to conduct a de novo review of the record.

The First Court simply brushed aside the issue of whether the administrative judge’s order effected a “constitutional disqualification.”

It dismissed completely any review of whether there were any grounds in the record to support such a harsh outcome as voiding a final judgment based upon a possible, a maybe, disqualification.

It accepted without that Judge Carter was “constitutionally disqualified” and as such voided the Final Judgment in favor of Relators. 44

However, the First Court’s decision doesn’t even really “void” the judgment, it temporarily “voids” it until some future second final judgment is appealed.

42 Terry Fisher, 2022 WL 2513475; 2017 Yale Dev. Inc,. 2022 WL 2513465; and KVAC Holding Co., 2022 WL 2513470.

43 Terry Fisher, 2022 WL 2513475, fn. 1; 2017 Yale Dev. Inc,. 2022 WL 2513465, fn. 1; and KVAC Holding Co., 2022 WL 2513470, fn. 1.

44 Steadfast Funding, LLC, v. Jetall Companies, Inc., No. 01-20-00155-CV, 2022 WL 2513466 (Tex. App.—Houston [1st Dist.] July 7, 2022, no pet. h.) (per curiam) (mem. op.).

The First Court did not provide any explanation as to why for over two years they never even bothered to ask the administrative judge to clarify her order.

The First Court also did not provide any explanation as to why they didn’t identify from their de novo review of the record the grounds that support such a constitutional disqualification.

VIII.      “Guessing” Does Not Constitute a De Novo Review

An appellate court cannot ignore the jurisdictional issue by simply “guessing” that a trial judge might be constitutionally disqualified and therefore “assume” a judgment is void.

Whether a judge is disqualified is a question of law that must be reviewed de novo.45

The second mandamus and the direct appeal of the four cases all have full records including a complete transcript of the recusal/disqualification evidentiary hearing.

If there was any doubt that one of the three constitutional grounds existed warranting the disqualification of Judge Carter, then the First Court had a duty to examine the entire record de novo and identify such facts supporting disqualification in its opinion.

The Dallas Appellate Court went behind the title of a motion and looked at the substance of the request to disqualify a judge.46

In this case, the First Court did nothing for two years and then simply dismissed the appeal of the administrative judge’s order by leaving the issue

45   Fuelberg v. State, 410 S.W.3d 498, 503 (Tex. App.—Austin 2013, no pet.)(Whether a judge is disqualified is a question of law that we generally review de novo).

46 Drake v. Sharma, 2020 WL 1283922 (Tex.App.- Dallas 2020, no pet.).

undecided: “To the extent that…”47

Such an arbitrary and capricious decision is a complete abdication of a First Court’s duty to review “disqualification” de novo.48

Subject-matter jurisdiction can be addressed by the court sua sponte and at any time.49

If the court’s jurisdiction hinges on whether facts exist to disqualify a judge, then that court has a duty to review the record de novo and make that determination independent of what an administrative judge found.50

The First Court’s “guess” at disqualification was a complete abdication of their responsibility in regards to the threshold assessment of subject matter jurisdiction.51

IX.              The Supreme Court Takes De Novo Review Seriously

The Supreme Court in Coronado itself undertook the review of the disqualification issue de novo seriously looking at the issue and going outside the record to take judicial notice of filings in other courts systems to resolve the jurisdictional question.52

The Supreme Court vacated the judgment of the court of appeals and remanded the case to the trial court for further proceedings.

An appellate court must do more than turn a blind eye to the record before it and the transcript of the proceedings below in a de novo review.

47 Terry Fisher, 2022 WL 2513475, fn. 1; 2017 Yale Dev. Inc,. 2022 WL 2513465, fn. 1; and KVAC

Holding Co., 2022 WL 2513470, fn. 1.

48 In re City of Dallas, 501 S.W.3d 71, 73 (Tex. 2016)(orig. proceeding).

49 Id.

50 Id.

51 Steadfast Funding, LLC, v. Jetall Companies, Inc., fn. 35 supra.

52 Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012).

Likewise, in Stokes v. Crosbie53, Austin Court of Appeals itself addressed the issue of disqualification, not the administrative judge.54

If disqualification is raised after a court of appeals has acquired jurisdiction, then it is the court of appeals that must address the issue.

In Stokes the appellate court identified a presumption that the trial court acted lawfully and correctly.”55

The Austin Court declined to hold that the trial judge disqualified.56

Even a different panel of the First Court in In re Estate of Calking,57 found an administrative judge’s order was ambiguous as to whether it compelled constitutional disqualification or simply recusal.58

In rejecting the “disqualification” argument, the Court explained that “the ambiguities in this record …prevent us from determining the nature of the issue presented.”59

The First Court then explained that, “[g]iven this lack of clarity, the record does not permit us to consider” the disqualification issue at all in the appeal.60

X.               First Court Acted Arbitrary and Capriciously

53 Stokes v. Crosbie, 2019 WL 2750886 (Tex.App.-Austin 2019, unpublished).

55 Id.

56 Id.

57 580 S.W3d 287, 295 (Tex.App. – Houston [1st Dist.] 2019, no pet.).

58 Id (“Their contention is based on the regional presiding judge’s decision—more than five years ago— to either recuse or disqualify Judge Wood from presiding in the prior guardianship case involving Mary Olive.”)(emphasis added).

59 Id.

60 Id.

At a minimum, over the two-year period the First Court left the issue dormant, they had a duty, or at least a solemn moral obligation, to direct the administrative judge to clarify her order and specify the grounds for a constitutional disqualification. 61

The First Court had a duty to at least review the record and the transcript.

There is no discretion in a constitutional disqualification.

It is mandatory if one of the three grounds exist.

It is mandatory to deny a disqualification if none of them exist.

The First Court’s decision was so arbitrary and capricious it completely disregarded the presumption that the trial court acted lawfully and correctly.62

Courts do not have “discretion” to guess at jurisdictional facts (ie “To the extent that…”).

In the absence of any evidence of one of the three grounds in Rule 18a(j)(1)(B)(2), any such disqualification order is a clear failure by the administrative judge to analyze or apply the law correctly and constitutes an abuse of discretion.

61 Here we have Real Parties’ counsel accusing Judge Carter of felony conduct in public filings when under cross-examination he admitted no such evidence exist. It is a violation of Texas Disciplinary Rule 8.02 which states: (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory official or public legal officer, or of a candidate for election or appointment to judicial or legal office.

62 Mortland v. Dripping Springs I.S.D., No. 03-02-00331-CV, 2003 WL 21705258, at *1 (Tex. App.— Austin July 24, 2003, no pet.)(mem. op.) (“In general, the appellate court indulges every presumption in favor of the regularity of the proceedings and documents in the trial court.”) (internal quotation marks omitted); University of Tex. at Austin v. Hinton, 822 S.W.2d 197, 202 (Tex. App.—Austin 1991, no writ)(“We must presume that the proceedings and judgment below were regular and correct.”)

63 Joachim v. Chambers, 815 S.W.2d 234, 240 (Tex.1991), Eanes ISD v. Logue, 712 S.W.2d 741, 742 (Tex.1986)(trial court abused discretion by erroneously finding constitutional violation).

If grounds exist for a constitutional disqualification, then courts of appeals “should declare the order void…” not “equivocate” as to whether it is void.64

“Maybe it has jurisdiction and maybe it doesn’t but who knows” is an irrational way to evaluate disqualification issues that have a retroactive effect of voiding judgments.

A review of the records demonstrates that “to the extent” the administrative judge meant to disqualify Judge Carter, it is devoid of any guiding principles of law because there were no grounds to disqualify him.

The administrative judge’s repeated refusal to clarify her order was a clear abuse of discretion.

Likewise, the First Court’s refusal to direct the administrative judge to clarify her order was a clear abuse of discretion.

The First Court’s decision not to conduct a de novo review of the record for facts establishing any basis to disqualify Judge Carter was devoid of any guiding principles of law.

Real Parties recently filed a Response to the Petitions.

They absolutely refuse to identify any basis to support a constitutional disqualification.

In prior briefs, the Real Parties cite to the federal standard which is completely inapplicable under a Texas constitutional disqualification.

The federal rules do not distinguish between recusal or disqualification and use the terms interchangeably because there is no

64 In the Estate of Knies, No. 05-18-00919-CV, 2018 WL 5603569, *1 (Tex. App.—Dallas 2018, no pet.)(mem. op.); State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995).

automatic “void” effect in the federal system.65

In fact, the federal system also imposes a harmless error analysis on a judge’s failure to disqualify himself.66

The First Court’s refusal of mandamus and appellate review of a “potential” constitutional disqualification completely nullifies Rule 18a(j)(1).

It results in a Byzantine procedural maze wherein an ambiguous order that “potentially” or “maybe” disqualifies a judge is not reviewable by mandamus or appeal.

It may never be reviewed even after another “final judgment” is rendered in the case because that judgment itself is void if no grounds existed in the first place to disqualify the judge.

By denying mandamus and direct appeal review, the First Court has created a “Wilderness of Mirrors” from which there is no appellate review or remedy ever.

Under the First Court’s analysis, does it require two “final judgments” in place before an appellate court reviews a possible disqualification of the original trial judge or does it require more than two?

That seems absurd.

How would the appellate courts after a second trial and a second final judgment reconcile potentially inconsistent “final judgments” if originally there never any grounds to disqualify the first judge?67

Bizarre indeed.

65 28 U.S.C.A. § 455 statute uses recusal/disqualification of federal judges interchangeably.

66 Shell Oil Co. v. United States, 672 F.3d 1283, 1288 (Fed. Cir. 2012)(“the availability of de novo appellate review renders harmless any error in failing to recuse under Section 455.”).

67 Examples from the Texas Supreme Court include In re AIU Insurance Co.,148 S.W.3d 109 (Tex. 2004); In re Prudential Insurance Co. of America, 148 S.W.3d 124 (Tex. 2004); In re Geomet Recycling LLC, 578 S.W.3d 82, 92 (Tex. 2019)( orig. proceeding) (“This right, once violated, cannot be recovered by appeal;” In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 209–10 (Tex. 2009)(orig. proceeding); Faulkner v. Culver, 851 S.W.2d 187 (Tex. 1993)(orig. proceeding) (per curiam).

XI.            Administrative Judge Was Without Jurisdiction to Hear Motion to “Disqualify”

Real Parties did not raise the issue of disqualification of Judge Carter until their appeal was already pending in the court of appeals. 68

At that point in time the court of appeals already acquired jurisdiction.69

The administrative judge sitting in the trial court was without jurisdiction to decide any disqualification or recusal motion.70

Once a court’s plenary power expires, the trial court has no jurisdiction to act.71

Any order entered by a court without jurisdiction to act is void.72

In Reger v. State, 73 the Appellate Court held that the trial court was without jurisdiction to consider a motion to disqualify the judge because the court had lost plenary power.

The First Court herein decided it did not have jurisdiction but then held the final judgment void which required it to have jurisdiction. 74

How is that even possible?

68 Steadfast Funding, LLC v. No. 01-19-00555-CV, 2022 WL 2513466 (Tex. App.—Houston [1st Dist.] July 7, 2022, no pet. h.) (per curiam) (mem. op.), [Petition No. 22-0754].

69 The filing of a notice of appeal vests the court of appeals with jurisdiction and deprives the trial court of jurisdiction. See Lopez v. State, 18 S.W.3d 637, 639 (Tex.Crim.App.2000).

70 Faulkner v. Culver, 851 S.W.2d 187 (Tex. 1993)(orig. proceeding) (per curiam);Reger v. State, 222 S.W.3d 510, 513 (Tex.App.- Fort Worth 2007, pet. ref’d).

71 TEX. R. CIV. P. 329b(f); upon perfection of the appeal, the trial court loses jurisdiction the, pending the appeal, in respect to all matters that interfere with the appellate functions. See Panhandle Const. Co. v. Lindsey, 72 S.W.2d 1068, 1072 (Tex. 1934). The trial court may not then take any action in the cause with respect to the subject matter of the appeal. See Bichsel v. Heard, 328 S.W.2d 462, 466 (Tex. Civ. App.— San Antonio 1959, no writ); Akinwamide v. Transp. Ins. Co., 499 S.W.3d 511, 520 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).

72 Tesco Am., Inc. v. Strong Indus., Inc., 221 S.W.3d 550, 556 (Tex. 2006)

73 222 S.W.3d 510, 513 (Tex.App.- Fort Worth 2007, pet. ref’d).

74 Steadfast Funding, LLC, v. Jetall Companies, Inc., No. 01-20-00155-CV, 2022 WL 2513466 (Tex. App.—Houston [1st Dist.] July 7, 2022, no pet. h.) (per curiam) (mem. op.).

This Court has held that when a judge continues to sit in violation of a constitutional proscription, mandamus is available to compel his disqualification.75

This Court has held that mandamus relief is proper when a trial court erroneously denies a motion to disqualify. 76

As of Jan. 7, 2020, the administrative judge was without jurisdiction to consider Real Parties’ motion and as such her order was a nullity.77

The improper disqualification of a judge equally warrants mandamus or appellate review, especially when expressly permitted by statute.78

The adequacy of an appellate remedy depends on the circumstances and requires a balancing of the benefits of mandamus review against the detriments.79

Mandamus is available when the alternative is a waste of judicial resources and a forfeiture of substantial rights.80

XII.       The First Court’s Decision Creates a “Wilderness of Mirrors”

The First Court’s decision begs the question as to when Relators can obtain review of an erroneous decision disqualifying a trial judge.

The First Court held they are without jurisdiction to consider Real Parties’ appeal because there is no “final judgment.”

They also ruled that the trial judge’s final judgment is “void” but

75 In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998)(orig. proceeding).

76 In re O’Connor, 92 S.W.3d 446, 450 (Tex.2002).

77 Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex.1993)( Supreme Court stating that if a trial court did not have jurisdiction, “then we do not”).

78 TEX. R. CIV. P.18a(j).

79 In re Academy, Ltd., 625 S.W.3d 19 (Tex. 2021).

80 Id.

did not explain how they could reach that decision without jurisdiction or how they could reach that decision without evidence in the record of a constitutional ground supporting disqualification.

Instead, they sent Relators back to the trial court to await another “final judgment” from which it is unclear if Relators can appeal from that judgment because if no grounds exist to warrant disqualification in the first instance, then there was no basis to void the first Final Judgment.

As such, the second Final Judgment will be “void.”

If an Appellate Court ever reviews the record and correctly determines that there were no grounds ever to disqualify Judge Carter, then the original “final judgment” is reinstated?

What happens to the “second final judgment”?

Is the subsequent judgment “void.”

If so, what supports appellate review?

Which “final judgment” should even take precedent?

This “wilderness of mirrors” is entirely the result of the First Court not conducting a proper de novo review and as such constitutes an abuse of discretion and justifies mandamus review.81

Such a “Wilderness of Mirrors” is a waste of judicial and public resources that results from the First Court’s “guessing” as to whether Judge Carter was really disqualified by the administrative judge or she just circled an order listing the title of a motion.82

81 Id.

82 In re Kingman Holdings, LLC, No. 13-21-00217-CV2021, WL 4301810 (Tex. App. – Corpus Christi- Edinburg 2021, orig. proceeding) (mem. op.).

Of note is the dissent in Tesco Am., Inc. v. Strong Indus., Inc;83

“[i]f this futile exercise does not exhaust the parties, they will return, almost certainly with the same issues and the same arguments, and all the Court will have accomplished is to waste everyone’s time and resources. The merits of the case are fully and fairly before us, and I would decide them now.”84

The merits of this case are fully and fairly before the Court and it should cut the First Court’s Gordian Knot procedure for appellate review of a “possible” disqualification and decide the issue now.

83 Tesco Am., Inc. v. Strong Indus., Inc., 221 S.W.3d 550, 555 (Tex.2006).

84 Id.

CONCLUSION/PRAYER

Because of the First Court’s reasoning, the law regarding review of an order of disqualification is now shrouded in mystery: neither direct appeal nor mandamus provide any procedure to review a possible order of “disqualification.”

Relators respectfully request the Court grant this Mandamus, reverse the court of appeals, compel the Administrative Judge to clarify her order as to whether she disqualified Judge Carter or merely recused Judge Carter,

and

if she does order disqualification then review those grounds or order the First Court of Appeals to consider the merits of any disqualification order issued by the Administrative Judge

and

conclude that the no grounds exist to disqualify Judge Carter and that all orders and judgments are valid

and

any further or additional relief to which they may be entitled.

Respectfully submitted,

/s/ Lloyd E. Kelley

LLOYD E. KELLEY

State Bar No. 11203180
2726 Bissonnet Ste 240 PMB 12
Houston, Texas 77005
Telephone: 281-492-7766
Telecopier: 281-652-5973

Attorney for Relators

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