Sunday, May 5, 2013

Traffic Book 777A3-2013-05-05 Page 33-65

PERSON

Texas Code of Criminal Procedure

Art. 17A.01. APPLICATION AND DEFINITIONS. (a) This chapter sets out some of the procedural rules applicable to the criminal responsibility of corporations and associations. Where not in conflict with this chapter, the other chapters of this code apply to corporations and associations.

(b) In this code, unless the context requires a different definition:

(4) "Person," "he," and "him" include corporation and association.

Added by Acts 1973, 63rd Leg., p. 979, ch. 399, Sec. 2(D), eff. Jan. 1, 1974.

{NOTE: This is the only place in the Texas Code of Criminal Procedure that you find the term “Person” defined. Many court cases have found that the term “include” means to keep within, not to expand. We have no reason for this other than corporations commit crimes, where people commit civil offences against his brother. This is referenced by Rule 137 of the Texas Rules of Civil Procedure concerning “In civil actions for assault and battery, slander and defamation of character,..” The term person used to be directed to the Texas Penal Code for reference, but for some reason, the Texas Legislature decided to remove the reference.}

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JURISDICTION

NOTE: Jurisdiction is by what authority they can judge you; make them work for it, by using ‘by special appearance.’

Title 18 U.S.C.

§ 3231. District courts

The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.

Need to designate statute # on indictment or information signed by the attorney with bond # and not in case file, or the court is not vested with jurisdiction.

Texas Penal Code, Sec. 1.03. Effect of Code

(a) Conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute.

(b) The provisions of Titles 1, 2, and 3 apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this code shall be applicable unless the punishment is classified in accordance with this code.

(c) This code does not bar, suspend, or otherwise affect a right or liability to damages, penalty, forfeiture, or other remedy authorized by law to be recovered or enforced in a civil suit for conduct this code defines as an offense, and the civil injury is not merged in the offense.

Jurisdiction in the Texas Code of Criminal Procedure

Art. 2.03. [27] [33] [34] Neglect of duty.

(a) It shall be the duty of the attorney representing the State to present by information to the court having jurisdiction, any officer for neglect or failure of any duty enjoined upon such officer, when such neglect or failure can be presented by information, whenever it shall come to the knowledge of said attorney that there has been a neglect or failure of duty upon the part of said officer; and he shall bring to the notice of the grand jury any act of violation of law or neglect or failure of duty upon the part of any officer, when such violation, neglect or failure is not presented by information, and whenever the same may come to his knowledge.

(b) It is the duty of the trial court, the attorney representing the accused, the attorney representing the state and all peace officers to so conduct themselves as to insure a fair trial for both the state and the defendant, not impair the presumption of innocence, and at the same time afford the public the benefits of a free press.

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

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

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

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

NOTE: The above should have been included in the Information & Complaint Sections – Very Important

Art. 2.10. [34] [42] [43] Duty of magistrates.

It is the duty of every magistrate to preserve the peace within his jurisdiction by the use of all lawful means; to issue all process intended to aid in preventing and suppressing crime; to cause the arrest of offenders by the use of lawful means in order that they may be brought to punishment.

COURTS AND CRIMINAL JURISDICTION

CHAPTER FOUR--COURTS AND CRIMINAL JURISDICTION

Art. 4.01. [51] [63] [64] What courts have criminal jurisdiction.

The following courts have jurisdiction in criminal actions:

1. The Court of Criminal Appeals;

2. Courts of appeals;

3. The district courts;

4. The criminal district courts;

5. The magistrates appointed by the judges of the district courts of Bexar County, Dallas County, Tarrant County, or Travis County that give preference to criminal cases and the magistrates appointed by the judges of the criminal district courts of Dallas County or Tarrant County;

6. The *county courts;

7. All *county courts at law with criminal jurisdiction;

8. *County criminal courts;

9. Justice courts;

10. Municipal courts; and

11. The magistrates appointed by the judges of the district courts of Lubbock County.

Note: * Notice that there are 3 distinct County Courts, to which one did they direct you?

Art. 4.03. [53] [68-86-87] Courts of Appeals.

The Courts of Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts in all criminal cases except those in which the death penalty has been assessed. This Article shall not be so construed as to embrace any case which has been appealed from any inferior court to the county court, the county criminal court, or county court at law, in which the fine imposed by the county court, the county criminal court or county court at law does not exceed one hundred dollars, unless the sole issue is the constitutionality of the statute or ordinance on which the conviction is based.

NOTE: They (the judges) usually lower the fine to $90 so you can’t appeal their decision, but you can appeal the unconstitutional provision of the statute.

Art. 4.04. [53a] Court of Criminal Appeals.

Sec. 1. The Court of Criminal Appeals and each judge thereof shall have, and is hereby given, the power and authority to grant and issue and cause the issuance of writs of habeas corpus, and, in criminal law matters, the writs of mandamus, procedendo, prohibition, and certiorari. The court and each judge thereof shall have, and is hereby given, the power and authority to grant and issue and cause the issuance of such other writs as may be necessary to protect its jurisdiction or enforce its judgments.

Sec. 2. The Court of Criminal Appeals shall have, and is hereby given, final appellate and review jurisdiction in criminal cases coextensive with the limits of the state, and its determinations shall be final. The appeal of all cases in which the death penalty has been assessed shall be to the Court of Criminal Appeals. In addition, the Court of Criminal Appeals may, on its own motion, with or without a petition for such discretionary review being filed by one of the parties, review any decision of a court of appeals in a criminal case. Discretionary review by the Court of Criminal Appeals is not a matter of right, but of sound judicial discretion.

Art. 4.05. [54] [88] [87] Jurisdiction of district courts.

District courts and criminal district courts shall have original jurisdiction in criminal cases of the grade of felony, of all misdemeanors involving official misconduct, and of misdemeanor cases transferred to the district court under Article 4.17 of this code.

Art. 4.07. [56] [98] [91] Jurisdiction of county courts.

The county courts shall have original jurisdiction of all misdemeanors of which exclusive original jurisdiction is not given to the justice court, and when the fine to be imposed shall exceed five hundred dollars.

Art. 4.08. [57] [101-897] Appellate jurisdiction of county courts.

The county courts shall have appellate jurisdiction in criminal cases of which justice courts and other inferior courts have original jurisdiction.

NOTE: Notice the appellate jurisdiction of the county courts comes from a case from a justice court or other inferior court, which means that the county court does not have original jurisdiction to here the trial de novo. This way the county court can only rule on your paperwork or dismiss the case.

Art. 4.09. [58] [105] [95] Appeals from inferior court.

If the jurisdiction of any *county court has been transferred to the district court or to a *county court at law, then an appeal from a justice or other inferior court will lie to the court to which such appellate jurisdiction has been transferred.

Art. 4.10. [59] [99] [92] To forfeit bail bonds.

*County courts and *county courts at law shall have jurisdiction in the forfeiture and final judgment of all bail bonds and personal bonds taken in criminal cases of which said courts have jurisdiction.

Art. 4.11. [60] [106] [96] Jurisdiction of justice courts.

(a) Justices of the peace shall have original jurisdiction in criminal cases:

(1) punishable by fine only; or

(2) punishable by:

(A) a fine; and

(B) as authorized by statute, a sanction not consisting of confinement or imprisonment that is rehabilitative or remedial in nature.

(b) The fact that a conviction in a justice court has as a consequence the imposition of a penalty or sanction by an agency or entity other than the court, such as a denial, suspension, or revocation of a privilege, does not affect the original jurisdiction of the justice court.

Art. 4.12. [60a] Misdemeanor cases; precinct in which defendant to be tried in justice court.

(a) Except as otherwise provided by this article, a misdemeanor case to be tried in justice court shall be tried:

(1) in the precinct in which the offense was committed;

(2) in the precinct in which the defendant or any of the defendants reside; or

(3) with the written consent of the state and each defendant or the defendant's attorney, in any other precinct within the county.

(b) In any misdemeanor case in which the offense was committed in a precinct where there is no qualified justice court, then trial shall be held:

(1) in the next adjacent precinct in the same county which has a duly qualified justice court; or

(2) in the precinct in which the defendant may reside.

(c) In any misdemeanor case in which each justice of the peace in the precinct where the offense was committed is disqualified for any reason, such case may be tried in the next adjoining precinct in the same county having a duly qualified justice of the peace.

Art. 4.14. [62] [108] [98] Jurisdiction of municipal court.

(a) A municipal court, including a municipal court of record, shall have exclusive original jurisdiction within the territorial limits of the municipality in all criminal cases that:

(1) arise under the ordinances of the municipality; and

(2) are punishable by a fine not to exceed:

(A) $2,000 in all cases arising under municipal ordinances that govern fire safety, zoning, or public health and sanitation, including dumping of refuse; or

(B) $500 in all other cases arising under a municipal ordinance.

(b) The municipal court shall have concurrent jurisdiction with the justice court of a precinct in which the municipality is located in all criminal cases arising under state law that:

(1) arise within the territorial limits of the municipality; and

(2) are punishable by fine only, as defined in Subsection (c) of this article.

(c) In this article, an offense which is punishable by "fine only" is defined as an offense that is punishable by fine and such sanctions as authorized by statute not consisting of confinement in jail or imprisonment that are rehabilitative or remedial in nature.

(d) The fact that a conviction in a municipal court has as a consequence the imposition of a penalty or sanction by an agency or entity other than the court, such as a denial, suspension, or revocation of a privilege, does not affect the original jurisdiction of the municipal court.

(e) The municipal court has jurisdiction in the forfeiture and final judgment of all bail bonds and personal bonds taken in criminal cases of which the court has jurisdiction.

Art. 4.15. [63] [109] [99] May sit at any time.

Justice courts and corporation courts may sit at any time to try criminal cases over which they have jurisdiction. Any case in which a fine may be assessed shall be tried in accordance with the rules of evidence and this Code.

Art. 4.16. [64] [63] Concurrent jurisdiction.

When two or more courts have concurrent jurisdiction of any criminal offense, the court in which an indictment or a complaint shall first be filed shall retain jurisdiction except as provided in Article 4.12.

Art. 4.17. Transfer of certain misdemeanors.

On a plea of not guilty to a misdemeanor offense punishable by confinement in jail, entered in a *county court of a judge who is not a licensed attorney, on the motion of the state or the defendant, the judge may transfer the case to a district court having jurisdiction in the county or to a *county court at law in the county presided over by a judge who is a licensed attorney. The judge may make the transfer on his own motion. The attorney representing the state in the case in *county court shall continue the prosecution in the court to which the case is transferred. Provided, in no case may any such case be transferred to a district court except with the written consent of the judge of the district court to which the transfer is sought.

Art. 21.26. [419] [483] [471] Order transferring cases.

Upon the filing of an indictment in the district court which charges an offense over which such court has no jurisdiction, the judge of such court shall make an order transferring the same to such inferior court as may have jurisdiction, stating in such order the cause transferred and to what court transferred.

Art. 21.30. [423] [487] [475] Cause improvidently transferred.

When a cause has been improvidently transferred to a court which has no jurisdiction of the same, the court to which it has been transferred shall order it to be re-transferred to the proper court; and the same proceedings shall be had as in the case of the original transfer. In such case, the defendant and the witnesses shall be held bound to appear before the court to which the case has been re-transferred, the same as they were bound to appear before the court so transferring the same.

Art. 27.08. [511] [575] [564] Exception to substance of indictment.

There is no exception to the substance of an indictment or information except:

1. That it does not appear therefrom that an offense against the law was committed by the defendant;

2. That it appears from the face thereof that a prosecution for the offense is barred by a lapse of time, or that the offense was committed after the finding of the indictment;

3. That it contains matter which is a legal defense or bar to the prosecution; and

4. That it shows upon its face that the court trying the case has no jurisdiction thereof.

Art. 36.11. [655] [731-733] Discharge before verdict.

If it appears during a trial that the court has no jurisdiction of the offense, or that the facts charged in the indictment do not constitute an offense, the jury shall be discharged. The accused shall also be discharged, but such discharge shall be no bar in any case to a prosecution before the proper court for any offense unless termination of the former prosecution was improper.

NOTE: The above article should be used for a motion to dismiss, stating that a statute charged against someone not required by applicability of such charge creates no offense. Example: being charged for failure of having a log book or weight scale certificate in your car, when you are not required to do this, if not operating an eighteen wheeler on the highway, creates no offense. The same argument could be used with every statute in the transportation while not in commerce.

Art. 44.0426. [834] [922] Filing bond perfects appeal.

(a) When the appeal bond has been filed with the justice or judge who tried the case not later than the 10th day after the date the judgment was entered, the appeal in such case shall be held to be perfected.

(b) If an appeal bond is not timely filed, the appellate court does not have jurisdiction over the case and shall remand the case to the justice or municipal court for execution of the sentence.

(c) An appeal may not be dismissed because the defendant failed to give notice of appeal in open court. An appeal by the defendant or the state may not be dismissed on account of any defect in the transcript.

Art. 45.043. [915] [1010] [975] Effect of Appeal

When a defendant files the appeal bond required by law with the justice or municipal court, all further proceedings in the case in the justice or municipal court shall cease.

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Jurisdiction in TEXAS

Jurisdictional Statement:

Pursuant to Article 5 Section 8 of the Texas Constitution: The District Court jurisdiction consists of exclusive appellate and original jurisdiction of all actions proceedings and remedies, except in cases where exclusive appellate or original jurisdiction maybe conferred by this Constitution or other law on some other court tribunal or administrative body. District Court did show power to issue writs necessary to enforce their jurisdiction. The District Court shall have appellate jurisdiction as general supervisory control of the County Commissioners Court with certain exceptions and under such regulation as may be prescribed by law.

Venue Statement:

Venue and instant action is proper in that, in all times enumerated herein, all actions have taken place within the City of which is in the County of ________________.

1. Lasher v. State, 30 Tex. App. 387, 17 S.W. 1064 (1891):

State prosecution for forgery occurring at Fort McIntosh, in U.S. jurisdiction. Court took judicial notice of this fact and held state had no jurisdiction over the offense.

2. United States v. Schwalby, 8 Tex. Civ. App. 679, 29 S.W. 90 (1894):

Schwalby claimed interest in real property alleged to be owned by U.S., for which a cession of jurisdiction existed. Suit commenced for trespass and Schwalby prevailed. On appeal, court held that jurisdiction within U.S. depended on title, and here the U.S. had only partial title; jurisdiction of state court upheld.

3. Baker v. State, 47 Tex.Cr.R. 482, 83 S.W. 1122 (1904):

Assault with intent to murder prosecution, the crime occurring outside Fort Brown on a street. U.S. had title and jurisdiction of the street, and defendant attempted to prove this but trial court excluded evidence holding U.S. had jurisdiction only within fort. Court reversed and held that actual boundaries were all important as the state would have no jurisdiction for an offense occurring on any spot within U.S. jurisdiction.

4. Curry v. State, 111 Tex. Cr. 264, 12 S.W.2d 796 (1928):

Defendant convicted of a fishing offense occurring on federal property, the land being owned by U.S., but there being no proof of cession of jurisdiction pursuant to state law. Court held that cession of jurisdiction by Governor pursuant to statute was essential to transfer jurisdiction, thus state court had jurisdiction here.

5. United Services Automobile Ass'n. v. Harman, 151 S.W.2d 609 (Tex.Civ.App. 1941):

Soldiers stationed at Fort Hoyle, military reservation in Maryland, but in U.S. jurisdiction, involved in auto accident in Baltimore; suit in Maryland had process served upon soldier in enclave. Suits in Texas instituted to recover against insurer on Maryland judgments, and insurer attacked Maryland process. Court held that Maryland process regarding a non-resident was entirely proper.

6. City of Wichita Falls v. Bowen, 143 Tex. 45, 182 S.W.2d 695 (1944):

City annexed adjoining military bases, and bus company owner was engaged in transportation between city and bases. His argument that city taxes on fares paid at bases were invalid on jurisdictional grounds was not sustained.

7. Independent School Dist. of City of El Paso v. Central Education Agency, 247 S.W.2d 597 (Tex.Civ.App. 1952): El Paso, in agreement with military officers at Fort Bliss, annexed the reservation to school district and then sought additional state funding. The court found nothing improper in such arrangement.

8. Sandel v. State, 158 Tex.Cr.R. 101, 253 S.W.2d 283 (1952):

Auto accident on highway in Fort Hood; defendant was intoxicated and death resulted, hence murder prosecution. Defendant attacked state court's jurisdiction and proved title of land in U.S. and act of cession. State replied by showing that jurisdiction over the road was reserved to the state. Conviction upheld.

9. Garcia v. State, 169 Tex.Cr.R. 30, 331 S.W.2d 53 (1959):

Defendants employed by U.S. government at El Paso International Bridge were prosecuted by state for assault with intent to rape. Because the U.S. Immigration Building at the bridge was only leased to the U.S., court held state court had jurisdiction.

10. Board of Equalization v. General Dynamics Corp., 344 S.W.2d 489 (Tex. Civ. App. 1961):

U.S. owned land and had obtained cession of jurisdiction, and General Dynamics had substantial amount of property located there which City of Fort Worth taxed. Court held that city had no jurisdiction to impose this tax.

11. Calvert v. Adams, 388 S.W.2d 742 (Tex. Civ. App. 1965):

Amusement machines located at Fort Hood had tax imposed. In suit to recover taxes, court held same could not be recovered; reversed, Adams v. Calvert, 396 S.W.2d 948 (Tex. 1965).

12. Humble Oil & Refining Co. v. Calvert, 464 S.W.2d 170 (Tex.Civ.App. 1971):

Held, state could not impose occupation taxes on company exploiting minerals at Corpus Christi Naval Air Station, in U.S. jurisdiction. Affirmed, 478 S.W.2d 926 (Tex. 1972).

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DUE PROCESS

Due Process defined under Goldsberg v. Kelly, 397 US 254

1. Timely Notice.

2. Confront your adversary witnesses.

3. Oral Arguments.

4. Oral presentation of evidence.

5. Cross examination of adverse party

6. Right to an attorney.

7. Disclosure of evidence.

8. Determination of outcome of a Court of Record. (so you don't have to do it again.)

9. Right of finding facts and conclusions of law. (you have the right to ask the reasoning why a judge is doing what he is doing.)

10. Right to an impartial judge.

Texas Code of Criminal Procedure, Sec. 2.01 - all other attorneys are charged, "with the primary duty not to convict but to see justice done. They shall not suppress facts or secrets witnesses capable of establishing the innocence of the accused."

Chapter 45 of the Code of Criminal Procedures are where the rules of the Municipal Courts supposedly use.

Tex. Cod. of Crim. Proc. 45.025 - Defendant may waive jury.

Tex. Cod. of Crim. Proc. 45.024 - If defendant refuses to plead, the justice shall enter a plea of not guilty.

Tex. Cod. of Crim. Proc. 45.020 - The defendant has a right to appear by counsel as in all other cases. State's counsel may open and conclude the argument.

Tex. Cod. of Crim. Proc. 45.011 - The rules of evidence shall apply to such actions in justice courts.

Tex. Cod. of Crim. Proc. 45.037 - An application for a new trial must be made within one day after the rendition of judgment and sentence, and not afterward.

Tex. Cod. of Crim. Proc. 45.040 - In no case shall the State be entitled to a new trial.

Tex. Cod. of Crim. Proc. 45.041 - All judgments and sentences and final orders of the justice shall be rendered in open court.

Tex. Cod. of Crim. Proc. 45.051 Sec. 6 - Records relating to a complaint dismissed as provided by this article mat be expunged under Article 55.01 of this code.

Government Code Book 2, Chapter 29, is on General Law, Chapter 30 gets into separate Court rules of Municipal Courts.

Gov. Code 30.266 - If the defendant or the state requests a court reporter prior to trial, the judge shall appoint an official court reporter.

Due process of law. Due process of law implies the right of the party affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense: to be heard, by testimony or otherwise, and to have a controvert right, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law.

An orderly proceeding wherein a party is served with notice, actual or constructive, and has an opportunity to be heard and to enforce and protect his rights before a court having power to hear and determine the case. Kazubowski v. Kazubowski, 45 Ill.2d 405, 259 N.E.2d 282, 290. Phrase means that no party shall be deprived of life, property or of any right granted him by statue, unless matter involved first shall have been adjudicated against him upon trial conducted according to established rules regulating judicial proceedings, and it forbids condemnation without a hearing. Pettit v. Penn, La. App., 180 So.2d 66, 69. The concept of “due process of law” as it is embodied in the Fifth Amendment demands that a law shall not be unreasonable, arbitrary, or capricious and that the means selected shall have reasonable and substantial relation to the object being sought. U.S. v. Smith, D.C.Iowa, 249 F.Supp. 516. Fundamental requisite of “due process “ is the opportunity to be heard, to be aware a matter is pending, to make an informed choice whether to acquiesce or contest, and to assert before the appropriate decision-making body the reasons for such choice. Trinity Episcopal Corp. v. Romney, D.C.N.Y., 387 F.Supp. 1044, 1084. Aside from all else, “due process” means fundamental fairness and substantial justice. Vaughn v. State, 3 Tenn. Crim. App. 54, 456 S.W.2d 879, 883. Refer. BLD. 6th page 500.

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BEFORE ARRAIGNMENT

At the Clerks office, ask for and get the Verified Complaint and a list of all Judges and Attorneys that may confront you during trial.

If the Clerk will not give this to you, ask if they are an attorney, if not, then get their supervisor. If the supervisor will not help, ask to speak to the judge or someone with the authority to speak. Don’t take NO for an answer. You must get the list, so you can check them out. Texas Const. Article 1, Section 10 verifies this right.

If you do not get this information, File a Motion to Dismiss for not following Article 1, Section 10.

Always check to see if the Judge is a judge in different courts, which is illegal. This can be done by checking with the City and State, under the authority of Article 16, Sec. 40. of the Texas Constitution. Use the 'Request for Access to Public Information' form. An example form is found in this reference book.

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ARRAIGNMENT

Always ask, “by what authority do you speak to me on this mater?” Other possible demands:

By Texas Constitution, Article 5, Section 21, a City Attorney cannot prosecute for the State of Texas, so I don’t have to talk to you.

I’ve done a search and he is not an Attorney.

I’ve done a search and you are not a judge.

You will state that you cannot plead because the court is not properly set. The proper person is not there to represent the State.

I can’t plead, I haven’t got a copy of the complaint, per 45.018 of the Texas code of Criminal Procedure.

(The Judge will always plead “Not Guilty” for you. This is in the Code of Criminal Procedures, to let him do this, but only if you refuse to plead. See previous page & page 26.)

In some situations, you may want to try to plead, “confession and avoidance.” This means the accusation filed against you does not apply to the activity that you were engaged in at the time of being detained. The judge will ignore this, but in a court of record, this will be an issue for appeal. If the court is a court of non-record, then everything you do is for practice and does not mean anything as the appeal to the higher court is considered a trial de novo, meaning that it action against you starts over as though nothing was done before in the previous court. Bazaar

State to the Judge that he does not have Subject Matter Jurisdiction, since his clerk swore to the Verified Complaint and that the Clerk is an agent working for the Principal, which is the Judge, and the judge cannot preside or anything, where he is involved as being the damaged party, which is stated in the Code of Criminal Procedure.

Texas Constitution, Art.1, Sec. 13 says that all trials will be OPEN; don't go in his Chambers unless you bring in a witness.

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PRE-TRIAL

After arraignment, put in Motion To Show Cause, using Rule 12 in the Texas Rules of Court, asking the judge to send an Order to the prosecutor to bring—to a Show Cause Hearing—his delegated authority to represent the State of Texas in this court case. Usually the time limit is ten days till the Show Cause Hearing. If the judge won’t do it, you could always write up a Writ of Mandamus send it to district court and make him do it. You know by now or can find in this reference only the county attorney can represent the state, and the city attorney doesn’t have the authority to represent it unless you give him/her consent.

When the Judge asked if you are ready for trial, you are NEVER "ready", because the court is not properly set.

NOTE: Rules of argument states that you get to open arguments of motions, then after the prosecutor, you get to close, before the judge makes a ruling. Found in the Rules of Criminal Procedure in article 28.08 .

CCRP 28.01(2) Pre Trial

TCCrP Art. 28.01. [522] [587] [576] Pre-trial.

Sec. 2. When a criminal case is set for such pre-trial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown; provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters. The record made at such pre-trial hearing, the rulings of the court and the exceptions and objections thereto shall become a part of the trial record of the case upon its merits.

The Texas Code of Criminal Procedure (CCRP) does not have an enacting clause and is not law. But by making special appearance and challenge jurisdiction, and telling them that they do not have the threshold prerequisites that are required for them to have jurisdiction.

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TRIAL

After Pretrial and when you know when the trial date is set - Subpoena the Clerk, Cop, and whoever else you can show of Non - Due Process. If the attorney tries to squash (quash) the subpoenas, your argument is that you have the right to be faced with your accusers, per Article 1, Section 10 of the Texas Constitution.

You ask the person who swore to the complaint - Where & How do you know me or about the case? Did you see me do this? Do you know that a crime even happened? Why did you swear to my complaint? Who did you swear to? How many complaints do you swear to that day?

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MOTIONS

The following pages show an Affidavit, a Certificate of Service (that is used with Motions, etc., to notify the court), an Order (something you write up to get the judge to make a Court Order—if it’s ready to go, it’s all the easier for him to sign off; he doesn’t have to think about it much), and some Bills and Notices. See external files for original and/or modern Motions.

The Table of Contents AND the original Motions (2001-2003 era) themselves are in file:

EasyREF_Motions-originals.doc.

The Table of Contents for the newer (2006) separate set of Motions, annotated with instructions & usage suggestions, is file: MotionsModernINDEX-anno.rtf. Then those new Motions are listed by their assigned number, and each Motion is a separate file. See also an unannotated list of Motions-by-number in Appendix B at the end of this Easy Ref. Book, below.

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AFFIDAVITS

A Bill of Exception - is an affidavit, which states that the court room procedure was not followed at stated in the Texas Rules of Criminal Procedure. You need three witnesses or a court of record transcript.

Affidavits should be done at any and every incident which do occur in your life, where they may need to be remembered in the future. (Like being stopped for a traffic ticket.) Writing down what you remember at the time or shortly there after. This will show credibility to your affidavit, than filling one out a month down the road.

Affidavits should be attached to each Motion to give it force and effect.

EXAMPLE

AFFIDAVIT

I, ______________________________, a Natural Born Native, herein further known as Affiant, am more than twenty-one (21) years of age and fully competent to testify to the facts stated herein to which Affiant has direct and personal knowledge. The facts testified to are the truth, whole truth, and nothing but the truth to the best of Affiant's belief.

Affiant believes that Motion For _____________________ has been researched and verified to be correct in every way and should be considered as Prima Facie until which time the prosecutor can rebut such information contained is such attached document.

Further Affiant Sayeth Naught.

_____________________________________________

On this_______ day of __________________, ______, Before me, ___________________________________, personally appeared as the above-signed affiant, known to me to be the one who's ascertained name is signed on this affidavit, and has acknowledged to me that s/he has executed under ascertained full faith and full knowledge of the same under such authority of fact would invoke.

Witness Witness

___________________________________ ___________________________________

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CERTIFICATE OF SERVICE

NOTE: Each Court pleading needs a Certificate of Service document attached which tells the court how, when and to whom the pleading was sent or handed to.

EXAMPLE

CERTIFICATE OF SERVICE

I certify that I delivered, by hand, the original MOTION FOR ____________________________, with the ORDER ON Accused's MOTION FOR ____________________________,, to the Clerk of the Court for filing in the ____________________ Court, at ______________________, _________________, Texas, for Cause # ____________________, on ___________________, 20___. I certify that I delivered, by hand, a true and correct copy of MOTION FOR ____________________________,, with the ORDER ON DEFENDANT'S MOTION FOR ____________________________, to the Prosecutor of the _______________________ Court, at ________________________, ____________________, Texas, for Cause # __________________, on _____________, 20___.

______________________________

, sui juris

****************

ORDER

Do-it-Yourself NOTE: The Order for the judge to sign is usually attached to the pleading, where the judge doesn’t have to take the time to write one up. Most prosecutors do it and word it the way that the prosecutor would like it to say.

EXAMPLE

IN THE _________________ COURT IN AND FOR THE CITY OF __________________

STATE OF TEXAS

Cause No. _________________

The STATE OF TEXAS § In the ____________________ COURT

VS. § § City of ________________

_________________________ § County of _____________

The Accused

ORDER ON DEFENDANT'S MOTION

FOR NATURE AND CAUSE OF THE ACCUSATION(S)

On this the day of , A.D., 20___, came on to be heard Defendant's Motion for Nature and Cause of the Accusation(s) in the above entitled and numbered cause(s), and the court, having heard the said motion, and the evidence thereon submitted, is of the opinion that said Motion should be

Granted

Denied, Grounds Being ________________________________________________

______________________________________________________________________________

It is therefore considered, ordered and adjudged by the Court that the Defendant's Motion for Nature and Cause of the Accusation(s) is hereby

Granted

__________ Denied, Grounds Being ________________________________________________

______________________________________________________________________________

Signed and entered this day of , A.D., 20___.

_____________________________

Judge Presiding

City of _________________

______________ County, Texas

****************

BILL OF DISCOVERY

NOTE: The below document can be sent to the judge, right after arraignment. Just to get his blood a pumping. You can revise it a little, then send it to the prosecutor, also.

BILL OF DISCOVERY

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW ____________________________________, sui juris, Aggrieved Party herein, appearing in propria persona and presents this BILL OF DISCOVERY to aid him in understanding the charges and thereby enabling him to prepare his defense to the charge to which he will be asked to plead, which is his right under Article 6 of the Bill of Rights of the Constitution for the United States of America, and Article I, Section 10 of the Texas Constitution.

Aggrieved Party believes the statutes used for these charges in this supposedly criminal court (alleges offenses and collects fines) are from Vernon's Texas Civil Statutes. Since civil statutes are only for certain classes of people, Accused is not at all sure the statutes used in this instant case apply to him, in fact Accused believes the opposite, absent competent documentary proof.

Accordingly, if a plaintiff's allegations of jurisdictional facts are challenged by the defendant, the plaintiff bears the burden of supporting the allegations by competent proof.

Thomson v. Gaskill 315 US 442, 446

Lack of jurisdiction is considered to be fundamental error with or without motion or assignment of error.

County of Harris v. Black 448 SW 2d 850 (1970)

In other words, even if not challenged by a party, without jurisdiction all subsequent proceedings are a nullity, and can be challenged at any later time by a defendant.

It is noted the 1916 Texas Penal Code Title I, Article 3 states:

In order that the system of penal law in force in this state may be complete within itself, and that no system of foreign laws, written or unwritten, may be appealed to, it is declared that no person shall be punished for any act or omission, unless the same is made a penal offense, and a penalty is affixed thereto by the written law of this state.

Aggrieved Party cannot find this charge in the Penal Code. This BILL OF DISCOVERY is in keeping with the spirit of the mandate of Article I, Section 10 of the present Texas Constitution, wherein the Accused "shall have the right to demand the nature and cause of the accusation against him, and have a copy thereof."

That these questions are necessary and authorized, is clearly established law.

Every ingredient of which the offense is composed must be accurately and clearly alleged. It is an elementary principle of criminal pleading, that where the definition of an offense, whether it be at common law or by statute, 'includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species; it must descend to particulars'.

U.S. v. Cook, 84 U.S. 539

...and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place and circumstances.

Arch. Criminal Practice and Pleadings, 291

Accused demands the court, or in the alternative, the Plaintiff be directed to inform him:

1. Are the laws these charges are based on, laws foreign to the Texas Constitution?

2. If so, are they written or unwritten?

3. If so, which foreign jurisdiction are they based on?

4. If they are domestic laws, are they of the only civil jurisdiction with criminal penalties, ie. Admiralty?

5. If yes, how did this case get in Admiralty?

6. Does this court proceed according to the Constitutions for Texas and the United States of America?

7. Is the Alleged Plaintiff asking this Court to sit judicially or ministerially?

IF THIS IS A CRIMINAL COURT

8. Does the Texas Constitution Article 5, Section 12 (b) mean that Aggrieved Party is entitled to have an information for a charging instrument filed with the court before the court has any jurisdiction in this matter? If not, why not?

9. Does 38 Am. Jur page 621 mean the "nature" of a complaint is common law or equity, or possibly martial law or admiralty? If not, why not?

IF THIS IS A CIVIL COURT

10. Is Aggrieved Party accused of some tort against Alleged Plaintiff?

11. Is Aggrieved Party accused of a breach of some alleged contract which the Alleged Plaintiff is attempting to enforce? If so, Aggrieved Party hereby demands production of a valid contract with his bona fide signature on it, and that it be entered into evidence so he can see if he did in fact enter into a contract. Absent such contract, Aggrieved Party is thinking of pleading non-assumpsit.

12. Is this charge brought under general law?

13. What is general law (Norton v. Shelby County, 118 US 425, 439)?

14. Exactly who is the Plaintiff in this matter? Is it the people of Texas, or the corporate State of Texas, or some other entity?

15. If Alleged Plaintiff is the corporate State of Texas, why did the District Attorney's Office bring this suit in this court despite Article III, Section 2, Clause 2 of the Supreme Law of the Land, the Constitution for the United States of America, wherein it commands:

"In all cases ... and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction"?

You are reminded, that at the time this was enacted, there were no law dictionaries with funny definitions such as "shall" means "may" sometimes, and are reminded that the intent of the legislators is the law.

16. Does the ALLEGED PLAINTIFF have any treaties affecting this case with the totally bankrupt, functionally dead at law, foreign municipal corporation domiciled in Washington, D.C. called the "United States"?

(See In re Merriam 36 NE 505, 20 CJS 1785; and Congressional Record March 17, 1993 page H1303 at the start of Mr. Trafficant's remarks)

17. Were these treaties made before or after the bankruptcy?

18. In what ways do these treaties affect this case?

19. Does the prosecution consider this Aggrieved Party to be sui juris and one of the sovereign Public of Texas?

20. If not, why not?

21. Is this charge brought from the Texas Penal Code?

22. Was the Texas Penal Code created by and now controlled by the Texas Legislature?

23. Was the Texas Legislature created by and now controlled by the Texas Constitution?

24. Was the Texas Constitution created by and now controlled by the Sovereign Public of Texas?

25. Can a creation of a creation of a creation of the sovereign public control said sovereign public?

26. If so, how so?

27. If this is not what is happening, does this court have jurisdiction over all non-diplomatic personnel living in __________________________ County?

28. If this court does have such jurisdiction, how is it achieved?

29. When and where did the sovereign public grant it? ("All political power is inherent in the people" - Texas Constitution)

30. Are the God-given rights of said sovereign public under some earthly control?

31. Are the God-given rights of this Aggrieved Party under some earthly control?

32. If so, how is such control lawfully gained?

33. Is such control gained only by the cooperation of the members of the sovereign public individually?

34. How is personam jurisdiction established over this Aggrieved Party?

35. If it is gained by cooperation, what is the nature of this cooperation?

36. If it is not gained by cooperation, how are sui juris people brought within the scope and purview of statutes?

37. How does the law allow Alleged Plaintiff to exact the compelled performance of the seatbelt law?

38. Aggrieved Party hereby demands production of all notes, reports, books and laws the Alleged Plaintiff intends to use to establish that this court has the lawful authority to enforce compelled performance (compelled performance is slavery absent an agreement).

39. Will peace officers be immune from charges of perjury for false testimony on the witness stand?

40. This discovery shall be on-going and any new material including exculpatory material will be provided Accused forthwith, and in any case, at least 15 days before he is required to plead in order to give him time to study the law involved and properly prepare a defense. Respectfully submitted,

_____________________________

, sui juris

*****************

ACCUAL DISCOVERY

“Discovery is not limited to information that will be admissible at trial; to increase likelihood that all relevant evidence will be disclosed and brought before trier of fact, the law circumscribes a significantly larger class of discoverable evidence to include anything reasonably calculated to lead to discovery of material evidence”. JAMPOLE v. TOUCHY, 673 S.W.2d 569 (Tex. 1984)

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BILL OF PARTICULARS

NOTE: This is used right after the arraignment, when the judge don’t get you a copy of the complaint and pleads Not-Guilty for you. It’s just a ‘Need To Know’ document. It’s sent to the prosecutor.

Possibly FRCP Rule 12 e could be used in conjunction with demand for bill of particulars.

Federal Rules of Civil Procedure – Rule 12(e)

(e) Motion For More Definite Statement.

If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

NOTE: If no answer provided to B of P, then that is denial of due process; Remedy is Mandamus to Appeals Court to force lower court to respond.

An Example

BILL OF PARTICULARS

Need to know the nature and cause of any civil or criminal charges being brought In any proceedings in which Requester herein might be named as a party. All questions should be referred to an instrument which the Requester is in receipt of, but reserves the right to refuse and not accept, if the nature and cause show that Requester is not the party named therein, not in the venue of the action, or if the Requester has any rights to respond by way of either a dilatory plea or a plea in bar prior to offering an Issueable plea.

1 Is the action civil or criminal?

2 If criminal, is it common law or admiralty?

3 Is the charging instrument an Affidavit, an information, an indictment, or a complaint?

4 Is the charging instrument signed?

5 Who signed the charging instrument?

6 Where was the charging instrument signed?

7 When was the charging instrument signed?

8 What is the title or position of the Person who signed the instrument?

9 Who is the damaged party?

10 Is the damaged party a natural person?

11 If the damaged party is a fiction, what is the name of the relator for the damaged party?

12 If the damaged party is a fiction, is the relator an officer, employee, agent, contractor, or subcontractor for the damaged party?

13 If the charging instrument is an affidavit, is it signed under penalty of perjury?

14 If the charging instrument is an affidavit, is it brought under first hand knowledge of the facts related therein?

15 If the charging instrument is an affidavit. What venue was the affidavit signed in?

16 If the charging instrument is a complaint, is it signed by a prosecuting attorney or law director?

17 In what venue did the acts or actions complained of arise?

18 Who is the controlling sovereign of the venue in which the charging instrument is made?

19 In what venue is the action to be tried, (i.e. that venue arising from Article I, Section 8, Clause 2 of the Constitution for the United States of America setting forth the venue of the exclusive jurisdiction of Congress to the 10 miles square of the District of Columbia and its Federal territories, possessions)

20 Is this venue based upon acts or actions conducted in law or based upon treaties, contracts and consents of the parties?

21 Is this proceeding being heard in the jurisdiction of law, equity, admiralty, maritime, ecclesiastical, or military?

22 Is this court under the venue and jurisdiction of the President of the United States, or the people of Texas?

23 Is the named Defendant a statutory person?

24 How do you spell the name of the person charged?

25 How do you spell the appellation of the petitioner herein?

26 What facts are relied upon to determine that the Defendant is a statutory person?

27 Is the charging instrument an indictment?

28 Is the indictment signed by a grand jury foreman? (When, where, who, is he a citizen or resident of some venue / which venue)?

29 Is the indictment signed by a prosecuting attorney? (Who, where, when, in what venue, Is he a citizen or resident, of which venue?)

30 Is the indictment signed under penalty of perjury? (Is the indictment said to be true, correct, complete?)

31 What is the true and correct spelling of the Defendant party appellation is upper and lower case letters? (Is this the appellation set forth on the charging instrument in correct spelling & punctuation)?

32 What material facts does the charging person rely upon to set forth that the acts and actions of the Defendant are a violation of <what ever charged with>?

33 If the action is criminal, did the crime take place in the venue of the people of Texas or in the venue of the STATE OF TEXAS?

34 If a warrant was issued for the Defendant, when was the warrant signed?

35 If a warrant was issued for the Defendant, who signed the warrant?

36 If a warrant was issued for the Defendant, and it was signed, what is the title of the person signing the warrant?

37 If a warrant was issued for the Defendant, and it was signed, by whom is the person who signed it employed, an official for, an officer for, or an agent or contractor or subcontractor for in the capacity of his signature?

38 If a warrant was issued for the Defendant, was a hearing held before the signing of the warrant? (Where, when, who was present, who testified, was it under penalty of perjury with first hand knowledge, was petitioner notified and given opportunity to testify & bring witnesses)?

39 If a warrant was issued for the Defendant and a hearing was held before the issuance, who testified under penalty of perjury at said hearing as to facts relied upon for the issuance of the warrant?

40 Were any of the persons associated with the petition for, the hearings of and testifying for the warrant public officials? (Where are copies of their bonds filed, who is in charge of the bond filings, how much is the face value of the bond, who bonds the action, is the funds behind the bond public - i.e., post office, or private i.e.,- IMF)

41 If a public official, what venue have they taken an oath to (i.e. United States or United States of America)? Is the oath in writing? Where are they kept, who is in charge of the filing of the oath?

42 Have any public officials taken any oaths that nullify, supersede, or cancel any written oaths on file? If so, what oaths, to what venues?

43 Have any public officials taken any oath to any venue or jurisdiction that would override or negate that official in his official duty from upholding petitioner's rights to unalienable rights set forth under the venue and jurisdiction of nature's God and nature's laws? What oaths have you taken, have you taken a Koll niedre oath, a Masonic oath, any others?

44 Do you have a duty as part of your job, to uphold the Constitution of the United States of America as set forth in 1787 ?

45 Do you recognize that I have unalienable rights? When did I lose them? What act or action did I take to loose them? What act or action did someone else take to make me loose my rights as they apply to this Statutory prosecution? What contract did I enter into that nullified my rights? Was 1 notified before I entered into the contract that I would loose my rights in this matter? When was I noticed, how? By what document?

46 What statute was I charged under? When was it passed into law, who passed it, who signed it, was it brought into law by proper process, does it have a legislative enactment clause, what venue & jurisdiction does it apply to, does it apply to me, is it constitutional as it applies to me, does it violate unalienable rights set forth by nature's God and nature's law, does it violate public policy, does it violate laws of nations, is it under police powers, is it under revenue powers, is there regulations adopted to enforce it, enforce it within what venue and jurisdiction?

47 Does the enforcement officer have proper delegation of authority to enforce the statute, ordinance, rule or regulation?

48 Was the enforcement officer within the proper jurisdiction and venue at the time of the acts or actions being enforced? Were you in that venue or jurisdiction at the time that the statute, ordinance, or regulation was being enforced?

49 Was the officer the one who personally saw the act or action complained of in the statute, ordinance or regulation? Was he in proper uniform / on duty! etc. when any arrest or detention was made? Is the statute, ordinance, or regulation civil or criminal? Is it necessary for the officer to be in proper uniform, marked vehicle. etc. to enforce the statute, ordinance, or regulation?

50 To what venue does the statute, ordinance, or regulation apply? United States, de jure people, Texas, Puerto Rico, creation of the State or creation of nature?

51 Is the statute, ordinance, or regulation founded upon duties owed by a citizen, resident, or creation of the State? If so, what state? Where is the definition of that State found in the Statutes, ordinances, or regulations? Is that duty one created by a trust? What trust? When was it established? Where was it established? Am I a subject or resident of said trust? How did I join the trust? What instrument establishes my nexus to said trust that creates the duty and obligation to said court? Do I have my signature on said instrument? When did I sign it? Who holds the original copy of said instrument? Is it the policy of the fiduciaries to disclose the purpose, duties, privileges, and rights of the trust with full disclosure prior to soliciting my signature to said trust application?

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BILL OF PARTICULARS

Notice Of Desire To Pay All Traffic Fines, Fees, Costs and Penalties

I, _________________________________________, ACCUSED, if found guilty, gives this, my “Notice Of Desire To Pay All Traffic Fines, Fees, Costs and Penalties” to the Judge of the Court, on this the ______ day of __________________________ , _______________.

However, due to the Constitution for the United States of America, at Article 1, Section 10, Clause 1, which mandates that “No state shall make any Thing but gold and silver Coin a Tender in Payment of Debts,” said Clause remaining UNREPEALED to date, and

Due to the Texas Code of Criminal Procedure at Article 43.02, which states that all fines, taxes, penalties and remunerances “shall be collected in the lawful money of the United States only”, said Article remaining UNREPEALED to date, and

Due to Federal Law, Title 12, Section 152, which defines “Lawful Money of the United States” to ONLY be “gold coin” and “silver coin”, said section remaining UNREPEALED to date, and

Due to 48 Stat. 2, (March 09, 1933) and 48 Stat. 113, (June 05, 1933) all gold coin was removed from common circulation, at par, at the banks in America, said Statutes, remaining UNREPEALED to date, and

Due to Public Law 8931, (July 23, 1965) Senate #2080, and Public Law 9029, (June 24, 1967) Title 50 Section 9898 H, and 60 Stat. 596, all silver coin was removed from common circulation at par, at the banks in America, said Public Laws Sections and Statutes remaining UNREPEALED to date,

I, the ACCUSED, AM THEREFORE CONSTRAINED BY LAW FROM PAYING THIS CLASS C fine, fee, cost or penalty, if found guilty.

Since Federal Reserve Notes, or checks or money orders payable only in Federal Reserve Notes are not within the definition of those things allowed by law to be received by the court, any threat to incarcerate me for “failure to pay” those things will be deemed to be an attempt to solicit an honorarium in violation of Texas Penal Code, Title 8, Section 36.07 or 36.08.

This is neither contempt, nor default, but merely a declaration that until Congress returns America to a Constitutional monetary system, it is impossible for me to pay fines, and IMPOSSIBILIUM NULLA OBLIGTIO EST, that is; There is no obligation to do impossible things.

Further, ACCUSED sayeth naught.

___________________________________________

____________________________________________

Witness

____________________________________________

Witness

***

Theoretical Case

The following theoretical case is provided for educational purpose to view the proper procedures that could be used to confront a charge of a class C misdemeanor offense punishable by fine only:

TRAFFIC STOP

A man is stopped by a police officer and the officer writes a citation for expired license plates and expired inspection sticker. The accused has two choices at this time:

1. Demand to be taken immediately before s magistrate pursuant to VTCS 6701d, Sec. 148, TCCP Articles 14.06 & 15.17.

2. Sign the citation and promise to appear before a magistrate at a later date pursuant to VTCS 6701d, Sec. 148, TCCP Article 14.06.

This theoretical case will deal with the later situation of being allowed to sign and promise to appear at a later date before a magistrate.

THE NOTICE

Sign the citation and go on your way. As soon as possible prepare a constructive notice similar to that in Appendix A, Figure 1. Examples are given of two constructive notices listed in Appendix A, Figure 1 is designed for the appearance before a magistrate. This gives the proper notice to the magistrate that you will be coming and informs him that you are aware of the ministerial duties that he is required to perform. It demands that those duties be performed.

THE APPEARANCE

When the accused appears, the appearance is for a specific purpose. An attempt by the magistrate will probably be made to change the purpose of this appearance. All the accused is required to do is demand to be magistrated and is required to give his name and address, nothing more. No other information is required by law and the right to silence should be maintained except the demand to be magistrated. A signature should never be issued for any reason except for a future appearance in the county court.

Some magistrates will not even show their face and will hide in their office. Others will attempt to distract the accused into accepting something other than what is required by law. The accused should leave the court if the duties of the magistrate are not performed. If they attempt to make an arrest for leaving, the accused should again demand to be magistrated for the arrest that was just made and the process starts all over again.

THE SECOND NOTICE

When forty-eight hours have passed after appearing before the magistrate, the second constructive notice in Figure 2, Appendix A, should be prepared and mailed certified mail to the magistrate. This notices the magistrate that the accused did not appear before him and that the law has performed his duties for him, because of his neglect to do so.

At this time, the accused has received a full acquittal under the law pursuant to Texas Code of Criminal Procedure 16.17. Any reprisals taken by anyone within the office of the magistrate which includes the magistrate himself can result in serious criminal charges being filed against him and carries long prison terms if convicted.

Appendix A, figure 1

Constructive Notice for the first appearance

CERTIFIED MAIL NO: _______________________

IN THE __________________________ COURT

____________________COUNTY, TEXAS

THE STATE OF TEXAS, §

V. § CAUSE NO. __________________

_____________________ §

name §

CONSTRUCTIVE NOTICE

To the magistrate or the presiding magistrate:

In the above numbered causes #’s ______________ wherein the accused is charged with a fine only, Class C misdemeanor(s), notices the magistrate that the accused will appear as promised on the citation(s) and demands to be brought before a magistrate in the county arrested and no other officer pursuant to the Texas Code of Criminal Procedure Articles 14.06, and 15.17 and pursuant to Vernon’s Texas Civil Statutes Article 6701d, Section 148.

The following points and authorities are furnished for the presiding magistrate to make a clear decision as to his or her duties:

Article 14.06 – Must take offender before magistrate

(a) Except as provided by Subsection (b), in each case enumerated in this Code, the person making the arrest shall take the person arrested or have him taken without unnecessary delay before the magistrate who may have ordered the arrest, before some magistrate of the county where the arrest was made without an order, or, if necessary to provide more expeditiously to the person arrested the warnings described by Article 15.17 of this Code, before a magistrate in a county bordering the county in which the arrest was made. The magistrate shall immediately perform the duties described in Article 15.17 of this Code.

(b) A peace officer who is charging a person with committing an offense that is a Class C misdemeanor, other than an offense under Section 49.02, Penal Code, may, instead of taking the person before a magistrate, issue a citation to the person that contains written notice of the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged.

Acts 1965, 59^th Leg., vol.2, p. 317, ch. 722. Amended by Acts 1967, 60^th Leg., p. 1735, ch. 659, § 10, eff. Aug. 28, 1967; Acts 1987, 70^th Leg., ch. 455, § 1, eff. Aug. 31, 1987; Acts 1991, 72^nd Leg., ch. 84, § 1, eff. Sept. 1, 1991; Acts 1993, 73^rd Leg., ch. 900, § 1.05, eff. Sept. 1, 1994.

Article 15.17 – Duties of arresting officer and magistrate

(a) In each case enumerated in this Code, the person making the arrest shall without unnecessary delay take the person arrested or have him taken before some magistrate of the county where the accused was arrested or, if necessary to provide more expeditiously to the person arrested the warnings described by this article, before a magistrate in a county bordering the county in which the arrest was made. The arrested person may be taken before the magistrate in person or the image of the arrested person may be broadcast by closed circuit television to the magistrate. The magistrate shall inform in clear language the person arrested, either in person, or by closed circuit television, of the accusation against him and of any affidavit filed therewith, of his right to retain counsel, of his right to remain silent, of his right to have an attorney present during any interview with peace officers or attorneys representing the state, of his right to terminate the interview at any time, of his right to request the appointment of counsel if he is indigent and cannot afford counsel, and of his right to have an examining trial. He shall also inform the person arrested that he is not required to make a statement and that any statement made by him may be used against him. The magistrate shall allow the person arrested reasonable time and opportunity to consult counsel and shall admit the person arrested to bail if allowed by law. A closed circuit television system may no be used under this subsection unless the system provides for a two-way communication of the image and sound between the arrested person and the magistrate. A recording of the communication between the arrested person and the magistrate shall be made. The recording shall be preserved until the earlier of the following dates: (1) the date on which the pretrial hearing ends; or (2) the 91^st day after the date on which the recording is made if the person is charged with a misdemeanor or the 120^th day after the date on which the recording is made if the person is charged with a felony, The counsel for the defendant may obtain a copy of the recording on payment of a reasonable amount to cover costs of reproduction.

(b) After an accused charged with a misdemeanor punishable by fine only is taken before a magistrate under Subsection (a) of this article and the magistrate has identified the accused with certainty, the magistrate may release the accused without bond and order the accused to appear at a later date for arraignment in the county court or statutory county court. The order must state in writing the time, date, and place of the arraignment, and the magistrate must sign the order. The accused shall receive a copy of the order on release. If an accused fails to appear as required by the order, the judge of the court in which the accused is required to appear shall issue a warrant for the arrest of the accused. If the accused is arrested and brought before the judge, the judge may admit the accused to bail, and in admitting the accused to bail, the judge should say as the amount of bail an amount double that generally set for the offense for which the accused was arrested. This subsection does not apply to an accused who has previously been convicted of a felony or a misdemeanor other than a misdemeanor punishable by fine only.

(c) When a deaf accused is taken before a magistrate under this article or Article 14.06 of this Code, an interpreter appointed by the magistrate qualified and sworn as provided in Article 38.31 of this Code shall interpret the warning required by those articles in a language that the accused can understand, including but not limited to sign language.

(d) If a magistrate determines that a person brought before the magistrate after an arrest authorized by Article 14.051 of this code was arrested unlawfully, the magistrate shall release the person from custody. If the magistrate determines that the arrest was lawful, the person arrested is considered a fugitive from justice for the purposes of Article 51.13 of this Code, and the disposition of the person is controlled by that article.

Acts 1965, 59^th Leg., vol.2, p. 317, ch. 722. Amended by Acts 1967, 60^th Leg., p. 1736, ch. 659, § 12, eff. Aug. 28, 1967; Acts 1979, 66^th Leg., p. 398,ch. 186, § 3, eff. May 15, 1979; Acts 1987, 70^th Leg., ch. 455, § 2, eff. Aug. 31, 1987; Acts 1989, 71^st Leg., ch. 467, § 1, eff. Aug. 28, 1989; Acts 1989, 71^st Leg., ch. 977, § 1, eff. Aug. 28, 1989; Acts 1989, 71^st Leg., ch. 997, § 3, eff. Aug. 28, 1989; Acts 1991, 72^nd Leg., ch. 16, § 19.01(2), eff. Aug. 26, 1991.

It is a violation of the law for any magistrate to willfully and knowingly create a deviation from those duties as outline above, and will not be tolerated by the accused. The accused has a right to due process of law and will defend that right.

If the arresting officer or magistrate or presiding magistrate fails to comply with the requirements above, he/she will force the accused to seek Mandamus and other remedies such as, and not limited to, civil action pursuant to Title 28 USCS and Title 42 USCS in the federal courts.

___________________________________

NAME

Name ___________________________________

ADDRESS ___________________________________

___________________________________

Sworn to and subscribed before me this ________________ day of _______________, 20___

Notary Public ___________________________________

My Commission Expires: _________________________

Appendix A, figure 2

Second Constructive Notice

CERTIFIED MAIL NO: _______________________

IN THE __________________________ COURT

____________________COUNTY, TEXAS

THE STATE OF TEXAS, §

V. § CAUSE NO. __________________

_____________________ §

name §

CONSTRUCTIVE NOTICE

To the magistrate or the presiding magistrate:

A COPY OF THE PREVIOUS NOTICE AND THIS NOTICE IS BEING FORWARD TO THE ___________________ COUNTY COMMISSIONERS COURT FOR REVIEW!

On ________________, 20___, the accused did appear with Next Friend(s) ______________________ ________________________________, pursuant to the Texas Penal Code, Chapter 38.10, Vernon’s Texas Civil Statutes, Article 6701d, Section 148 and The Texas Code of Criminal Procedures, Article 14.06 and 15.17. The magistrate nor any other presiding magistrate performed any duties of a magistrate pursuant to T.C.C.P. 15.17 or ordered the accused to appear at a later date for arraignment in the county court or statutory county court. The order must state in writing the time, date, and place of the arraignment, and the magistrate must sign the order pursuant to the T.C.C.P. Article 15.17, Section (b). Pursuant to the failure on the part of the magistrate or presiding magistrate to issue such order, the law is self operative and finds no probable cause pursuant to the T.C.C.P. Article 16.17.

Article 16.17 – Decision of Judge

After the examining trial has been had, the judge shall make an order committing the defendant to jail of the proper county, discharging him, or admitting him to bail, as the law and facts of the case may require. Failure of the judge to make or enter an order within 48 hours after the examining trial has been completed operates as a finding of no probable cause and the accused shall be discharged.

Acts 1965, 59^th Leg., vol. 2, p. 317, ch. 722.

Texas Code of Criminal Procedure, Article 2.09 – Who are magistrates:

Each of the following officers is a magistrate within the meaning of this Code:

The justices of the Supreme Court, the judges of the Court of Criminal Appeals, the justices of the Courts of Appeal, the judges of the District Court, the magistrates appointed by the judges of the district courts of Bexar County, Dallas County, Tarrant County, or Travis County that give preference to criminal cases, the criminal law hearing officers for Harris County appointed under Subchapter L, Chapter 54, Government Code, <FN1> the magistrates appointed by the judges of the district courts of Lubbock County or Webb County, the magistrates appointed by the judges of the criminal district courts of Dallas County or Tarrant County, the masters appointed by the judges of the district courts and the county courts at law that give preference to criminal cases in Jefferson County, the county judges, the judges of the county courts at law, judges of the county criminal courts, the judges of statutory probate courts, the justices of the peace, the mayors and recorders and the judges of the municipal courts of incorporated cities or towns.

Acts 1965, 59^th Leg., vol.2, p. 317, ch. 722. Amended by Acts 1981, 67^th Leg., p. 801, ch. 291, § 100, eff. Sept. 1, 1981; Acts 1983, 68^th Leg., p. 883,ch. 204, § 1, eff. Aug. 29, 1983; Acts 1989, 71^st Leg., ch. 25, § 2, eff. Aug. 28, 1989; Acts 1989, 71^st Leg., ch. 79, § 1, eff. May 15, 1989; Acts 1989, 71^st Leg., ch. 916, § 1, eff. Sept. 1, 1989; Acts 1989, 71^st Leg., ch. 1068, § 2, eff. Aug. 28, 1989; Acts 1991, 72^nd Leg., ch. 16, § 4.01, eff. Aug. 26, 1991; Acts 1993, 73^st Leg., ch. 224, § 2, eff. Aug. 30, 1993; Acts 1993, 73^st Leg., ch. 413, § 1, eff. Sept. 1, 1993; Acts 1993, 73^st Leg., ch. 468, § 1, eff. June 9, 1993; Acts 1993, 73^st Leg., ch. 557, § 2, eff. Aug. 30, 1993.

Upon the failure of the magistrate or the presiding magistrate to follow these procedures, the law provides for the accused to have an extraordinary remedy against the magistrate or presiding magistrate and the County of ___________________ for which he/she represents.

If the magistrate or the presiding magistrate participates in any follow-up actions that are detrimental and against the accused, knowing in advance that the law is self-executing for failure to act and issue such order contrary thereto. He/she is committing an illegal act and the denial of constitutional rights of the accused and this will not be tolerated. Furthermore, such actions would constitute a violation of OATH of office.

___________________________________

NAME

Name ___________________________________

ADDRESS ___________________________________

___________________________________

Sworn to and subscribed before me this ________________ day of _______________, 20___

Notary Public ___________________________________

My Commission Expires: _________________________

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JUDGES

NOTE: Always be respectful to all Judges. It is best to ask how the judge would like to be addressed in court, at the beginning. It serves no purpose to get the judge mad; he will do that on his own. Remember, they (the judges) have been instructed (by the seminars they go to) that they can LIE to you, because you have the right to Appeal. Never believe anything a judge or prosecutor says (always Object to everything), get everything in writing, that is possible, but don’t push it. Just make an Affidavit of what happened, afterwards. Remember that a court of Non-Record means NOTHING to you unless you get a dismissal. When you appeal to a court of record, they act as though nothing happened before, which it really didn’t. So don’t worry about it, it’s just time and money of which you also took from the court, by where you did your job. This is cheep training, for something major that might come along in the future. If you are doing this to save money and time, you didn’t read the beginning of this document very well.

In a court or trial setting, you may be able to request the judge’s book or evidence file in open court before the jury. This will allow them to be put into evidence. Generally, all evidence needs to be put in during open court. And if the judge refuses or denies anything, the jury will see that, anyway.

A Judge’s duty is either Judicial, Administrative, Ministrative or Ministerial

He can do only one. You must show what he was suppose to do and prove what he did or did not do in his capacity.

The main No-No for a judge is Abuse of Discretion.

Abuse of Discretion

Texaco, Inc. v. Zah, 5 F.3d 1374, 1376 (10th

Cir. 1993)(citing United States v. Plainbull, 957 F.2d 724, 725 (9th Cir. 1992)), aff'd after remand, Texaco, Inc. v. Hale, 81 F.3d 934 (10th Cir. 1996). Under this standard the district court abuses its discretion " if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact."

United States v. Bank of New York & Trust Co., 296 U.S. 463, 480 (1936) ("Even where the District Court has acquired jurisdiction prior to state proceedings, the character and adequacy of the latter proceedings . . . may require in the proper exercise of the discretion of the federal court that jurisdiction should be relinquished in favor of state administration.").

"[T]he grant of jurisdiction to the District Court in suits brought by the United States does not purport to confer exclusive jurisdiction," Bank of New York , 296 U.S. at 479, and "leaves open the question of the propriety of its exercise in particular circumstances," id. at 480; see also Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 479 1981)("[T]he mere grant of jurisdiction to a federal court does not operate to oust a state court from concurrent jurisdiction over the cause of action.").

ALSTON v. DEBRUYN (No. IP 91 C 1269 Seventh Circuit US Court of Appeals)

CUMMINGS, Circuit Judge. Byron Alston, an Indiana state inmate, appeals the dismissal of his civil rights com- plaint as frivolous under 28 U.S.C. sec. 1915(d). This appeal questions the propriety of that dismissal, which was with prejudice and without leave to amend the complaint. We conclude that the district court abused its discretion in dismissing the complaint because Alston raised colorable claims and should have had the opportunity to cure the complaint's shortcomings by amendment.

The "abuse of discretion" standard simply means that we shall not second-guess the decision of a trial judge that is in conformity with established legal principles and, in terms of its application of those principles to the facts of the case, is within the range of options from which one could expect a reasonable trial judge to select.

United States v. Koen, 982 F.2d 1101, 1114 (7th Cir. 1992).

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PROSECUTORS

LIAR, LIAR, Pants on Fire !!!

NOTE: It is Prosecutor's duty and obligation to give you the exculpatory evidence.

In any trial, (ask to) put the prosecutor on the witness stand. He’ll refuse, but the jury will see it!! (He likely can’t witness because he works for the State, but it’s a way to wind them up.)

Meshell v. State 739 S.W.2d 246 - "County attorney, having been granted exclusive right within judicial department to represent State in all cases in the district and inferior courts, is protected from legislative encroachment on his prosecutorial discretion by the separation of powers."

"Under separation of powers doctrine, legislature may not remove or abridge district or county attorneys' exclusive prosecutorial function unless authorized by express constitutional provision."

"Once a defendant has raised a claim under the Act, the State must respond with proof of its readiness for trial."

"A defendant may only appeal those grounds either raised in a written pretrial motion or appealed by permission of the trial court."

"He, a judge, cannot ignore facts which bring into play laws he does not personally approve , or disregard certain laws in order to reach a desired result in a particular case..."

State Board of Dental Examiners v. Bickham 203 S.W.2d 563 - "The Constitutional authority of county attorneys to represent the state in all cases in district and inferior courts cannot be abridged or taken away and the state may not be represented in such courts by any person other than county or district attorney unless such officer joins therein."

TCCrP Art. 2.01 Duties of the District Atty.: It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.

NOTE: The County Attorney and not the city attorney must represent the State in JP, County & Municipal Criminal Cases.

TCCrP Art. 2.02. [26] [32] [33] Duties of county attorneys.

The county attorney shall attend the terms of court in his county below the grade of district court, and shall represent the State in all criminal cases under examination or prosecution in said county; and in the absence of the district attorney he shall represent the State alone and, when requested, shall aid the district attorney in the prosecution of any case in behalf of the State in the district court. He shall represent the State in cases he has prosecuted which are appealed.

NOTE: Notice, above, the word ‘ALL’.

Art. 2.03. [27] [33] [34] Neglect of duty.

(a) It shall be the duty of the attorney representing the State to present by information to the court having jurisdiction, any officer for neglect or failure of any duty enjoined upon such officer, when such neglect or failure can be presented by information, whenever it shall come to the knowledge of said attorney that there has been a neglect or failure of duty upon the part of said officer; and he shall bring to the notice of the grand jury any act of violation of law or neglect or failure of duty upon the part of any officer, when such violation, neglect or failure is not presented by information, and whenever the same may come to his knowledge.

(b) It is the duty of the trial court, the attorney representing the accused, the attorney representing the state and all peace officers to so conduct themselves as to insure a fair trial for both the state and the defendant, not impair the presumption of innocence, and at the same time afford the public the benefits of a free press.

NOTE: Document as described by 2.04 must be in the case file or Judge ca not consider it!

According to this code, the Judge and the Court are not vested with jurisdiction!

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

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

TCCrP - Article 45.09 Officers' Fees

Unless provided by special charter, the governing body of each city, town or village by ordinance shall prescribe the compensation and fees which shall be paid to the recorder, city attorney, city secretary and other officers of said court, to be paid out of the municipal treasury.

1. City Attorney

A city attorney is not entitled to fees for prosecuting criminals in the recorder's court in a county that has a county attorney. Harris County v. Stewart (1898) 17 C.A. 1, 43 S.W. 52.

2. County Attorney

The county attorney has the exclusive right to appear in person or by deputy, and represent the state in all cases pending in a corporation court to which the state is a party, but he is entitled to no fees for so doing. Howth v. Greer (1907) 40 C.A. 552, 90 S.W. 212, 213.

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New Texas Nation

Sunday, May 5, 2013

Traffic Book 777A3-2013-05-05 Page 33-65

Jurisdiction in TEXAS

DUE PROCESS

BEFORE ARRAIGNMENT

ARRAIGNMENT

PRE-TRIAL

AFFIDAVITS

Witness Witness

CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE

ORDER

ORDER ON DEFENDANT'S MOTION

BILL OF DISCOVERY

BILL OF DISCOVERY

Thomson v. Gaskill 315 US 442, 446

Arch. Criminal Practice and Pleadings, 291

IF THIS IS A CRIMINAL COURT

IF THIS IS A CIVIL COURT

Notice Of Desire To Pay All Traffic Fines, Fees, Costs and Penalties

TRAFFIC STOP

THE NOTICE

THE APPEARANCE

THE SECOND NOTICE

CONSTRUCTIVE NOTICE

Appendix A, figure 2

CONSTRUCTIVE NOTICE

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