Traffic Book 777A3-2013-05-05 Page 65-113

CLERKS

NOTE: Clerks have a duty, like all public servants.  They have to file a bribery statement with the Secretary of State and have an Oath of office filed.  Here are a few things to keep in mind or have easy reference to.

CIVIL PRACTICE AND REMEDIES CODE

                             CHAPTER 7.  LIABILITY OF COURT OFFICERS

                                  SUBCHAPTER A.  LIABILITY OF OFFICER

Sec. 7.001.  Liability for Refusal or Neglect in Performance of Official Duties.

(a) A clerk, sheriff, or other officer who neglects or refuses to perform a duty required under Title 42, Revised Statutes, or under a provision of this code derived from that title is liable for damages in a suit brought by a person injured by the officer's neglect or refusal.

(b) The officer may be punished for contempt of court for neglect or refusal in the performance of those duties.

Sec. 16.033.  Technical Defects in Instrument.

(a) A person with a right of action for the recovery of real property conveyed by an instrument with one of the following defects must bring suit not later than four years after the day the instrument was recorded with the county clerk of the county where the real property is located:

                      (1) lack of the signature of a proper corporate officer, partner, or company officer, manager, or member;

                      (2) lack of a corporate seal;

                      (3) failure of the record to show the corporate seal used;

                      (4) failure of the record to show authority of the board of directors or stockholders of a corporation, partners of a partnership, or officers, managers, or members of a company;

                      (5) execution and delivery of the instrument by a corporation, partnership, or other company that had been dissolved, whose charter had expired, or whose franchise had been canceled, withdrawn, or forfeited;

                      (6) acknowledgment of the instrument in an individual, rather than a representative or official, capacity;

                      (7) execution of the instrument by a trustee without record of the authority of the trustee or proof of the facts recited in the instrument;

                      (8) failure of the record or instrument to show an acknowledgment or jurat that complies with applicable law; or

                      (9) wording of the stated consideration that may or might create an implied lien in favor of the grantor.

Sec. 17.024.  Service on Political Subdivision.

(a) In a suit against a county, citation must be served on the county judge.

(b) In a suit against an incorporated city, town, or village, citation may be served on the mayor, clerk, secretary, or treasurer.

(c) In a suit against a school district, citation may be served on the president of the school board or on the superintendent.

Sec. 17.027.  Preparation and Service.

(a) The plaintiff or his attorney may prepare the appropriate citation for the defendant.

(b) The citation must be in the form prescribed by the Texas Rules of Civil Procedure.

(c) The citation shall be served in the manner prescribed by law.

(d) The plaintiff or his attorney shall comply with the applicable Texas Rules of Civil Procedure governing preparation and issuance of citation.

(e) The clerk may charge a fee for the issuance of a citation except that the affixing of a seal shall not constitute issuance.  The clerk shall not charge for signing his name and affixing the seal to a citation prepared by a plaintiff or his attorney under this section.

                                                     CHAPTER 18.  EVIDENCE

                                 SUBCHAPTER A.  DOCUMENTARY EVIDENCE

Sec. 18.001.  Affidavit Concerning Cost and Necessity of Services.

(d) The party offering the affidavit in evidence or the party's attorney must file the affidavit with the clerk of the court and serve a copy of the affidavit on each other party to the case at least 30 days before the day on which evidence is first presented at the trial of the case.

(e) A party intending to controvert a claim reflected by the affidavit must file a counter affidavit with the clerk of the court and serve a copy of the counter affidavit on each other party or the party's attorney of record:

                      (1) not later than:

                               (A) 30 days after the day he receives a copy of the affidavit; and

                               (B) at least 14 days before the day on which evidence is first presented at the trial of the case; or (2) with leave of the court, at any time before the commencement of evidence at trial.

Sec. 51.002.  Certiorari From Justice Court.

(a) After final judgment in a case tried in justice court in which the judgment or amount in controversy exceeds $20, exclusive of costs, a person may remove the case from the justice court to the county court by writ of certiorari.

(b) In a county in which the civil jurisdiction of the county court has been transferred from the county court to the district court, a person may remove a case covered by this section from the justice court to the district court by writ of certiorari.

(c) If a writ of certiorari to remove a case is served on a justice of the peace, the justice shall immediately make a certified copy of the entries made on his docket and of the bill of costs, as provided in cases of appeals, and shall immediately send them and the original papers in the case to the clerk of the county or district court, as appropriate.

(d) This section does not apply to a case of forcible entry and detainer.

Texas Code of Criminal Procedure

Art. 30.05.  [556] [620-622] Record made by clerk.

            When a special judge is agreed upon by the parties, elected, or appointed as herein provided, the clerk shall enter in the minutes as a part of the proceedings in such cause a record showing:

1.  That the judge of the court was disqualified, absent, or disabled to try the cause;

2.  That such special judge (naming him) was by consent of the parties agreed upon, or elected or appointed;

3.  That, in addition to any oath previously taken, the oath of office prescribed by law for the special judge, including a special judge who is a retired, former, or active judge, was duly administered to such special judge.

Art. 33.07.  Criminal docket.

            Each clerk of a court of record having criminal jurisdiction shall keep a docket in which shall be set down the style and file number of each criminal action, the nature of the offense, the names of counsel, the proceedings had therein, and the date of each proceeding.

Art. 35.25.  [636] [711] [691] Making peremptory challenge.

            In non-capital cases and in capital cases in which the State's attorney has announced that he will not qualify the jury for, or seek the death penalty, the party desiring to challenge any juror peremptorily shall strike the name of such juror from the list furnished him by the clerk.

                               JUSTICE AND CORPORATION COURTS

       CHAPTER FORTY-FIVE—JUSTICE AND CORPORATION COURTS

Art. 45.01.  [867] Complaint.

            Proceedings in a municipal court shall be commenced by complaint, which shall begin:  "In the name and by authority of the State of Texas"; and shall conclude:  "Against the peace and dignity of the State"; and if the offense is only covered by an ordinance, it may also conclude: "Contrary to the said ordinance".  The municipal judge shall charge the jury when requested in writing by the defendant or his attorney.  Complaints before such court may be sworn to before any officer authorized to administer oaths or before the municipal judge, clerk of the court or his deputy, city secretary, city attorney or his deputy, each of whom, for that purpose, shall have power to administer oaths.

Art.     45.02.  [868] Seal.

(a) The said court shall have a seal with a star of five points in the center and the words "Corporation Court in __________ Texas", the impress of which shall be attached to all papers issued out of said court except subpoenas, and shall be used to authenticate the official acts of the clerk and of the recorder.

Art.     45.49.  [916] [1011] [976] Judgments in open court.

(a) All judgments and sentences and final orders of the justice shall be rendered in open court and entered upon his docket.

(b) The clerk of the court shall note the date a judgment is entered on a docket.

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OATHS

Article 16, Section 1 of the Texas Constitution

Sec. 1.  OFFICIAL OATH.  (a) All elected and appointed officers, before they enter upon the duties of their offices, shall take the following Oath or Affirmation:

"I, _______________________, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of ___________________ of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God."

(b)  All elected or appointed officers, before taking the Oath or Affirmation of office prescribed by this section and entering upon the duties of office, shall subscribe to the following statement:

"I, _______________________, do solemnly swear (or affirm) that I have not directly or indirectly paid, offered, promised to pay, contributed, or promised to contribute any money or thing of value, or promised any public office or employment for the giving or withholding of a vote at the election at which I was elected or as a reward to secure my appointment or confirmation, whichever the case may be, so help me God."

(c)  Members of the Legislature, the Secretary of State, and all other elected and appointed state officers shall file the signed statement required by Subsection (b) of this section with the Secretary of State before taking the Oath or Affirmation of office prescribed by Subsection (a) of this section.  All other officers shall retain the signed statement required by Subsection (b) of this section with the official records of the office. 

(Amended Nov. 8, 1938, and Nov. 6, 1956; Subsecs. (a)-(c) amended and (d)-(f) added Nov. 7, 1989; Subsecs. (a) and (b) amended, Subsecs. (c) and (d) deleted, and Subsecs. (e) and (f) amended and redesignated as Subsec. (c) Nov. 6, 2001.)  (TEMPORARY TRANSITION PROVISION for Sec. 1: See Appendix, Note 3.

TEXAS ASSOCIATION OF COUNTIES, 1210 San Antonio, Austin, Texas 78701

OUTLINE OF OFFICIAL OATH AND BOND REQUIREMENTS

To get a copy of the entire document visit the web site at www.county.org

Below is found on page 2 of the county document.

"Section 601.008(c), Texas Government Code provides that the official acts of a person who fails to qualify as an officer are void. Additionally, a person who has not qualified for office is not entitled to receive payment as the officer or exercise the powers or jurisdiction of the office. Without having qualified for office, a person has no right to the position."

Texas Government Code

Sec. 25.0017. Visiting Judge to Take Oath

(a)  A person who is a retired or former judge shall, before accepting an assignment as a visiting judge of a statutory county court, take the oath of office required by the constitution and file the oath with the regional presiding judge.

(b)  A regional presiding judge shall maintain a file containing the oaths of office filed with the judge under Subsection (a).

(c)  A retired or former judge may be assigned as a visiting judge of a statutory county court only if the judge has filed with the regional presiding judge an oath of office as required by this section.

Added by Acts 1995, 74^th Leg., ch. 456, Sec. 3, eff.  Sept. 1, 1995;  Acts 1995, 74^th Leg., ch. 782, Sec. 4, eff. Sept. 1, 1995.  Amended by Acts 1999, 76^th Leg., ch. 960, Sec. 1, eff. Sept. 1, 1999.

Sec. 25.0018. Record

When a retired or former judge is appointed as a visiting judge, the clerk shall enter in the minutes as a part of the proceedings in the cause a record that gives the visiting judge’s name and shows that:

(1)  the judge of the court was disqualified, absent, or disabled to try the cause;

(2)  the visiting judge was appointed;  and

(3)  the oath of office prescribed by law for a retired or former judge who is appointed as a visiting judge was duly administered to the visiting judge and filed with the regional presiding judge.

Added by Acts 1995, 74^th Leg., ch. 456, Sec. 3, eff.  Sept. 1, 1995;  Acts 1995, 74^th Leg., ch. 782, Sec. 4, eff. Sept. 1, 1995.  Amended by Acts 1999, 76^th Leg., ch. 960, Sec. 2, eff. Sept. 1, 1999.

"Because Judge Woodard was required to take the constitutional oaths, but did not do so, all judicial actions taken by him in the case below were without authority. *fn27 The Judgment Nisi therefore is without effect."

"Appeals has held in a similar situation, involving an "alternative" municipal Judge who had never taken the oaths of office, that: "without the taking of the oath prescribed by the Constitution of this State, one cannot become either a de jure or de facto Judge, and his acts as such are void.""

Prieto Bail Bonds v. State, 994 S.W.2d 316 (Tex.App. Dist.8 05/27/1999)

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PUBLIC INFORMATION ACT

NOTE: Best Thing since sliced bread. Some people out of Austin with a group named Common Cause of Texas (http://www.ccsi.com/~comcause/index.html#top) got this passed for us to use to keep tabs on the public servants. Use it as often as you can.  If a public servants tries to make you do something you don’t like.  File a request for information and see where in the constitution allows them to do this to you.  The rule, policy, requirement, demand or other persuasion has to have some paper trail leading back to the constitution to have any force and effect upon you.  Remember Article 3, Section 30 of the Texas Constitution.  Look for it in this documentation and find out how laws are made applicable to you.

THE ROLE OF THE ATTORNEY GENERAL.  The Attorney General is responsible for ensuring that Texas government is open and accessible to all citizens.  Several divisions of the agency are involved in this effort.  The Open Records Division decides which records are open to the public under state law, takes action to enforce these decisions, and sponsors conferences that educate public officials about our state's open government laws.  The Municipal Affairs Division and the County Affairs Section give legal advice to local government agencies and officials.

The Attorney General provides an Open Records Hotline: (512) 478-OPEN

OPEN RECORDS MADE EASY.  Each year, the Municipal Affairs Division of the Attorney General's Office produces a publication that addresses certain key issues that city officials face in their day-to-day operations.  This article provides answers in lay person's terms to the most frequently asked questions regarding the Open Records Act.

The stakes are high for city officials that handle open record requests.  There are strict time lines for making determinations on what records to release and city officials must make such decisions knowing that there are potential criminal penalties if the city releases information that is considered confidential under state law.  Similarly, city officers face criminal penalties if they refuse to release information that is considered open to the public.

In a question-and-answer format, this article will provide guidance to city officials on the most frequently asked questions on the Texas Open Records Act (sometimes referred to as the "Public Information Act").  For example, the article addresses:  the types of records and entities that fall under the Act; the time deadlines and mandatory notices that apply when a city handles an open records request; and when a city is required to ask for an Attorney General open record ruling.  Additionally, the article covers: what inquiries can be made of a requestor; whether a city must perform research or compile statistics pursuant to open record requests; how a city can deal with requests that may be made for harassment purposes; what information is generally confidential; the ability to release information within police records; information that can be withheld regarding pending or anticipated litigation; the ability to charge for copies of and access to public information; and finally, the penalties and enforcement remedies under the open records laws.

For additional copies of this article or for assistance on other municipal law issues, please do not hesitate to contact the Municipal Affairs Division of the Office of the Attorney General.  The Municipal Affairs Division can be reached at (512) 475-4683.

Accountability.  The Public Information Act lists 18 categories of information that are considered public by their very nature, including completed audits and reports, information about public employees and officials, contracts, tax information, agency organization charts, rules and opinions, policy statements and procedural manuals.  S.B. 1851 mandates that this information must always be disclosed to the public, unless specifically made confidential by another law.

Other changes made by S.B. 1851 and other new state laws include:

• My office now has authority to maintain uniformity in the application, operation and interpretation of the Public Information Act.  This will help reduce confusion and disagreement over what is public and what is not.
• All governmental bodies must post a sign informing the public of its basic rights under the Public Information Act.  The signs will start going up early in the new year.
• Compliance with open records laws will be examined each time a state agency is reviewed by the Sunset Commission.
• Information related to lawsuits involving a public agency or official is only shielded from disclosure if the litigation is pending or reasonably expected at the time the request was filed.
• All of the provisions of the Public Information Act that apply to school districts also apply to open-enrollment charter schools.
• Affidavits filed in support of a search warrant must be made public once the warrant has been executed.

Government agencies sometimes use alternative dispute resolution (ADR) procedures to resolve legal matters involving private individuals and organizations.  Under the law, a final written ADR agreement signed by a governmental body is now a public record.

Various records relating to the employment of executive heads of state agencies are now public. These include consulting service contracts, records relating to reassignment of the executive, and financial payments made to a former executive director.

If the Comptroller of Public Accounts produces a report which is subject to disclosure, it must be promptly published on the agency's Internet website.  And public information that is filed or recorded electronically by a county clerk must be provided to the public in such a way that it can be accessed via commonly used software, such as a word processing or spreadsheet program.

Information Requests By Citizens. S.B. 1851 made important changes in the procedures for requesting public records.  If the cost of responding to a request is over $40, the governmental body must give you an itemized estimate of the charges. If a less costly way of producing the information is available, the estimate must say so. If the actual charges are higher than the estimate, the governmental entity must either prepare an updated estimate or opt to charge no more than 20% more than the original estimate.  After getting the estimate, you must provide an address where the information can be sent.  If this is not done within 10 days, the request is automatically withdrawn.

Large public entities may require a deposit if the total charges will exceed $100.00.  Smaller governmental entities may ask for a deposit if the charges will total more than $50.  These entities may also require a deposit if you owe more than $100 for previous open records requests.  You may be charged an inspection fee when the records are more than five years old or fill six or more archive boxes (three years old for small agencies).  Governmental bodies may ask for advance payment of postage and copying costs before sending requested information by mail.

Sometimes, people file the same open records requests over and over again.  To help control costs, a governmental entity may respond to a repetitious request with a letter stating that the information has already been provided, instead of creating a new copy of the information.

If a governmental body believes that information requested under the Public Information Act is exempt from disclosure, it must ask for a decision on the matter from the Attorney General. Under S.B. 1851, my office now has 45 days to determine whether the information should be disclosed.  In addition, the governmental entity must notify you that an opinion has been requested.  A governmental body may not request a new decision when my office or a court has already decided that the information must be released.

S.B. 1851 also creates a new procedure for filing a civil suit against a government body that violates the Public Information Act.  If you believe a local public entity has violated the Act, you may file a written complaint with your local district or county attorney.  If the violation involves a state agency, you must file a complaint with the Travis County District Attorney.  Within 31 days, the prosecutor must decide whether a violation has occurred and whether to file a lawsuit.  If a violation has taken place, the governmental body must be given three days to make amends before being sued.  If the local prosecutor chooses not to take action, you may refile the complaint with my office.

EXAMPLE

Texas Public Information Act Request

TO:     ____________________________________________________________________

            ____________________________________________________________________

            ____________________________________________________________________

FROM:           ____________________________________________________________________

            ____________________________________________________________________

            ____________________________________________________________________

RE:                 Formal request for the production of documents.

AUTHORITY:          Texas Public Information Act Request pursuant to Texas Government Code § 552

Dear Sir:

            Under the Chapter 552, Public Information of the Texas Government Code as stated:

Sec. 552.001.  Policy; Construction.

                      (a) Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees.  The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.  The people insist on remaining informed so that they may retain control over the instruments they have created.  The provisions of this chapter shall be liberally construed to implement this policy.

                      (b) This chapter shall be liberally construed in favor of granting a request for information. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.

In response to _________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

Further:

This is to assure you, that I will comply with Section 552.122; as you are to comply with Section 552.261 and, for documents in excess of 50 pages, Section 552.271.  These documents should be delivered to the stated above (FROM) address.

I request no "speculative or hypothetical legal opinion". I request no "creation of documents", "legal research", opinion or advice.  I request the documents showing the authority of all actions stated herein. If no documents are responsive to any document request, please indicate so in your written response.

            DOCUMENTS BEING REQUESTED:

COPIES OF ALL DOCUMENTS that are in your possession, under your control, or within your system of records, such documents that would indicate or specify:

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

Texas Public Information Act

Remedy for Failure to Comply

Sec. 552.353.  Failure or Refusal of Officer for Public Information to Provide Access to or Copying of Public Information.

(a) An officer for public information, or the officer's agent, commits an offense if, with criminal negligence, the officer or the officer's agent fails or refuses to give access to, or to permit or provide copying of, public information to a requestor as provided by this chapter.

(b) It is an affirmative defense to prosecution under Subsection (a) that the officer for public information reasonably believed that public access to the requested information was not required and that the officer:

                      (1) acted in reasonable reliance on a court order or a written interpretation of this chapter contained in an opinion of a court of record or of the attorney general issued under Subchapter G;

                      (2) requested a decision from the attorney general in accordance with Subchapter G, and the decision is pending; or

                      (3) not later than the 10th calendar day after the date of receipt of a decision by the attorney general that the information is public, filed a petition for a declaratory judgment, a writ of mandamus, or both, against the attorney general in a Travis County district court seeking relief from compliance with the decision of the attorney general, and a petition is pending.

(c) It is an affirmative defense to prosecution under Subsection (a) that a person or entity has, not later than the 10th calendar day after the date of receipt by a governmental body of a decision by the attorney general that the information is public, filed a cause of action seeking relief from compliance with the decision of the attorney general, and the cause is pending.

(d) It is an affirmative defense to prosecution under Subsection (a) that the defendant is the agent of an officer for public information and that the agent reasonably relied on the written instruction of the officer for public information not to disclose the public information requested.

(e) An offense under this section is a misdemeanor punishable by:

                      (1) a fine of not more than $1,000;

                      (2) confinement in the county jail for not more than six months; or

                      (3) both the fine and confinement.

(f) A violation under this section constitutes official misconduct.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.

Amended by Acts 1995, 74th Leg., ch. 1035, Sec. 25, eff. Sept. 1, 1995.

If you cannot produce this public information for inspection or duplication within 10 calendar days after the date of receiving this request, you shall so certify to me in writing and set a date and hour within a reasonable time when the information will be available for inspection, duplication, or be mailed to me per § 552.221 and § 552.308.

You shall treat this request for information uniformly without regard to the position of the person who signs this request per § 552.223.

                                                            Sincerely,

                                                            ______________________________________________

                                                                       

cc:        Attorney General Greg Abbott

            P.O. Box 12548

            Austin, Texas  78711

CERTIFIED MAIL # ______________________________

DATE SENT ______________________

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OPEN MEETINGS ACT

NOTE: Just some more information about public servants and their meeting.  When you’re the King, you need to be able to watch over your servants.

OPEN MEETINGS MADE EASY.  Each year, the Attorney General’s Municipal Advisory Committee asks the Attorney General’s Office to produce a publication that addresses certain key issues that city officials face in their day-to-day operations.  In a question-and-answer format, this article covers the most frequently asked questions on the Texas Open Meetings Act.1.  For example, the article addresses:  when the Open Meetings Act generally applies, what constitutes reasonable notice of the subject matter of an open meeting, the application of the Act to informal gatherings of the city council, and the limited right of individual council members to place items on an agenda.  Additionally, the article covers what are permissible subjects for executive sessions, who may attend an executive session, and the appropriate handling of a certified agenda.  Finally, the article addresses the ability to “ratify” an action, civil enforcement of the Open Meetings Act, and criminal penalties for certain Open Meetings Act violations.

The stakes are high for city officials.  Texas courts have ruled that in certain cases, a local public official can be convicted of participating in an illegal closed meeting even though the official may have believed at the time that the closed meeting was authorized.  City officers can also face criminal penalties if they attempt to avoid open meetings requirements by meeting in numbers of less than a quorum for the purpose of secret deliberations about city business.

An article available will attempt to provide answers in lay person’s terms to the most frequently asked questions regarding the Open Meetings Act.  Copies of this article can be obtained by calling the Municipal Affairs Division of the Attorney General’s Office at (512) 475-4683.

I. Application of the Open Meetings Act 

When does the Open Meetings Act generally apply? The Open Meetings Act (OMA) generally applies when a quorum of a governmental body is present and discusses public business.  However, it does not apply to purely social gatherings or to the attendance of public officials at conferences or training if no formal actions are taken and if the discussion of public business is only incidental at such events.

What is the relationship between the Open Meetings Act and the Open Records Act?  The Open Meetings Act and the Open Records Act are both intended to make government more accessible to the public.  However, the two are completely separate statutes, and each operates independently of the other.  The mere fact that a city may be able to withhold a document from the public under the Open Records Act does not mean that the city council has authority to meet in executive session regarding the subject covered in that document.  Likewise, the fact that the Open Meetings Act allows a city council to have an executive session about a particular topic does not mean that documents reviewed in the executive session may be withheld from the public.

III. Effect of Quorum Provisions on Open Meetings Act Issues

General Quorum Provisions

Managing Discussions at an Open Meeting

What right does the public have to speak on a particular agenda item? The Open Meetings Act allows the public to observe the open portion of a city council meeting.  However, the Texas Attorney General has concluded that the Open Meetings Act does not give members of the public a right to speak on items considered at an open meeting.  Such a right only exists if a specific state law requires a public hearing on that item or if state law requires that public comment be allowed on that issue.  If a city allows members of the public to speak on an item at a council meeting, the council may adopt reasonable rules regulating the number of speakers on a particular subject and the length of time allowed for each presentation.  However, the city council must apply its rules equally to all members of the public.

What is the general distinction between a public hearing and an open meeting? A city council is generally not required by the Open Meetings Act to allow members of the public to speak on regular agenda items at an open meeting.  However, during a public hearing, members of the public must be given a reasonable opportunity to speak.

Another difference between public hearings and general open meetings is the type of notice that must be provided.  Many statutes which require a public hearing also require that special notice of the hearing be given.  For instance, when a city is going to have an annexation hearing under section 43.052 of the Texas Local Government Code, it must publish notice of the hearing in a newspaper at some time between ten and twenty days before the hearing.  On the other hand, the only notice generally required for a regular open meeting is the 72-hour posted notice at city hall.

Keeping a Record of Open Meetings

What duty does a city have to produce minutes of open meetings? A city must either keep minutes or make a tape recording of every open meeting.  If the governmental body chooses to keep minutes rather than make a tape, state law requires that the minutes state the subject of each deliberation and indicate every action that is taken.

What access does the public have to the minutes of an open meeting? The minutes or tape recording of an open meeting are open to the public and must be available for inspection and for copying.  It should be noted that exceptions to required public disclosure in the Open Records Act do not apply to the minutes or recording of an open meeting.  The city must permanently retain copies of its minutes for its meetings.  However, the city is not required by state law to publicly post the minutes of an open meeting.

What right does the public have to record open meetings? The Open Meetings Act gives any member of the public a legal right to make a video or audio recording of an open meeting.  However, the Act also gives a governmental body a right to adopt reasonable rules that are necessary to maintain order at a meeting.  Thus, a city council may regulate the location of recording equipment and the manner in which the recording is conducted.  However, the city may not adopt any rule that would unreasonably impair a person's right to record an open meeting.

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OBJECTIONS

Objections to raise in court, pick one, but always -  I OBJECT, YOUR HONOR !

[Often, Court Rules allow for only certain objections; check the court for which you’re heading (ask the clerk for a list).]

Ambiguous

Asked & Answered

Argumentative

Best Evidence

Compound

Cross - Examination

Dead-Man's Statue

Harassment

Hearsay

Immaterial

Impeachment

Incompetent

Incompetent Foundation

Irrelevant

Leading

Misleading Facts or Testimony

Motion to Strike Answer

Narrative Answer (Question Excessively Broad)

Non-Responsive Answer

Opinion

Parole Evidence Rule

Self-Serving

Speculation

Witness Not Competent

Witness Not Qualified

Always object when the attorney opens his mouth, because most of the time is testifying to matters that he has NO firsthand knowledge of.

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FINDINGS OF FACTS AND CONCLUSIONS OF LAW

NOTE: In any cases which go to the County or District Courts, hold the judges’ feet to the fire by filing a request for findings of facts and conclusions of law within 20 days after final judgment.  This will sometimes make them reverse their judgment if they ruled a certain way, just because they could. If the judge fails to file a finds of fact, Rule 297 below shows your requirement to send another notice of reminder. If you fail to do this, the appellate court will say that the judge was not required since you failed to remind the judge.

Texas Rules of Court

RULE 296. REQUESTS FOR FINDINGS OF FACTS AND CONCLUSIONS OF LAW

In any case tried in the district or county Court without a jury, any party may request the Court to state in writing its findings of fact and conclusions of law.  Such request shall be entitled "Request for Findings of Fact and Conclusions of Law" and shall be filed within twenty days after judgment is signed with the clerk of the Court, who shall immediately call such request to the attention of the judge who tried the ease.  The party making the request shall serve it on all other parties in accordance with Rule 21a.

RULE 297. TIME TO FILE FINDINGS OF FACT AND CONCLUSIONS OF LAW

The court shall file its findings of fact and conclusions of law within twenty days after a timely request is filed. The court shall cause a copy of its findings and conclusions to be mailed to each party in the suit.

If the court fails to file timely findings of fact and conclusions of law, the party making the request shall, within thirty days after filing the original request, file with the clerk and serve on all other parties in accordance with Rule 21a a "Notice of Past Due Findings of Fact and Conclusions of Law" which shall be immediately called to the attention of the court by the clerk. Such notice shall state the date the original request was filed and the date the findings and conclusions were due. Upon filing this notice, the time for the court to file findings of fact and conclusions of law is extended to forty days from the date the original request was filed.

Federal Rules of Civil Procedure

Rule 52.  Findings by the Court;  Judgment on Partial Findings

(a) Effect.

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review.  Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.  The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court.  It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court.  Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56 or any other motion except as provided in subdivision (c) of this rule.

(b) Amendment.

On a party's motion filed no later than 10 days after entry of judgment, the court may amend its findings -- or make additional findings -- and may amend the judgment accordingly.  The motion may accompany a motion for a new trial under Rule 59. When findings of fact are made in actions tried without a jury, the sufficiency of the evidence supporting the findings may be later questioned whether or not in the district court the party raising the question objected to the findings, moved to amend them, or moved for partial findings.

(c) Judgment on Partial Findings

If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue, or the court may decline to render any judgment until the close of all the evidence.  Such a judgment shall be supported by findings of fact and conclusions of law as required by subdivision (a) of this rule.

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VENUE

NOTE: Below is the main reason to bring 3 or more witnesses with you for all your court hearings. Remember that civil rules apply when criminal rules do not provide for the remedy.

Texas Rules of Civil Procedure

RULE 257. GRANTED ON MOTION

A change of venue may be granted in civil causes upon motion of either party, supported by his own affidavit and the affidavit of at least three credible persons, residents of the county in which the suit is pending, for any following cause:

(a) That there exists in the county where the suit is pending so great a prejudice against him that he cannot obtain a fair and impartial trial.

(b) That there is a combination against him instigated by influential persons, by reason of which he cannot expect a fair and impartial trial.

(c) That an impartial trial cannot be had in the county where the action is pending.

(d) For other sufficient cause to be determined by the court.

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UNITED STATES DISTRICT COURT

NOTE: You will see a Magistrate or District Judge.  The District Judge will sometimes appoint a Magistrate to hear a case.  You can then appeal the decision back to the District Judge before appealing to the United States Court of Appeals.  This is all found in the Federal Rules of Appellate Procedure.

Ask the Court Clerk for the local rules for the judge that you will be in front of.

You will be able to see your court file and get copies of documents which show up in it.  You will need a copy of everything that is in your file, for the Appeal, When you make your RECORD EXCERPTS report to be filed with the Appeals Court.

After you have your time in court, you should by the next day go to the Court Records Department and ask for a copy of the tape recording of your hearing.  You will need to tell them the day and approximately the time of day that it occurred and who the Judge was.  This will cost you about $15.00 for about 90 minutes.  This will help you pick the parts of the transcript that you want printed, because it will cost you about 4 to 5 dollars a page.  If the hearing is long, just tell them what part you want printed for your appeal.

Use a Motion of Relief of Order – per Rule 60 of the Federal Rules of Civil Procedure to have the order of a Magistrate reversed.

Always put in a Motion for a Finding of Facts and Conclusions of Law after a Magistrate of District Judge signs an Order against you.

Most cases filed in Federal Court are Dismissed per Rule 12 (b) (6) of the Federal Rules of Civil Procedure – Failing to state a claim, whereby relief can be granted.  The relief that you ask MUST BE capable of the judge to grant such relief by law and you must state where in the law that the judge has this right to grant.

Always base your case upon to always appeal, never expect to win in the lower courts.  Everything that you do will be based on Procedure Violations of the Court and/or Prosecutor.  You have to study the rules of the Federal Rules of Civil Procedure, to see where the Prosecutor or Court slipped up.

Examples are Rule 4(b), did they do service correctly, did you waive service?  Did they offer counsel to you?

Check the Due Process section.

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APPEALS – FEDERAL

In a New Ball Park.

Paper Work Changes Greatly.

You need to contact the Clerk of the Appeals Court and get the Rules of the Court.  You will follow the Federal Rules of Appellate Procedure, but you still need the Appellate Court Rules.

Your Appeal Brief must have specific parameters, Like:  14 Font, Double Spaced, Appellate Brief – Blue Cover, Appellee – Red Cover; the Brief has to be Binded (bound) so it will lay flat.  Check the Rules and follow them.

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STATE COURTS – All

Texas, That Is !

Texas Transportation Code

Sec. 542.403.  Court Costs.

(a) In addition to other costs, a person convicted of a misdemeanor under this subtitle shall pay $3 as a cost of court.

NOTE:  Above is one of many court costs the legislature dreams up for you to pay.  Go down to the clerk’s office and get a copy of the list of court cost that could be stuck on you.  Sometimes the courts tries to double dip you with multiple charges on the same trial.  Watch them closely; make them itemize each cost.

Texas Code of Criminal Procedure

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.

Art. 4.02.  [52] Existing courts continued.

No existing courts shall be abolished by this Code and shall continue with the jurisdiction, organization, terms and powers currently existing unless otherwise provided by law.

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

Article 45.07 Collection of Costs

No costs shall be provided for by any ordinance of any incorporated city, town, or village, and none shall be collected.

1. In General

Corporation court's judgments complied with art. 45.50 that in case of conviction the judgment shall be that state shall recover fine and costs, although the judgments did not assess court costs, in view of provisions of this article that no court cost can be collected by corporation courts.

Deal v. State (Cr.App. 1968) 423 S.W.2d 929

Art. 45.50 The Judgment.

(a) The judgment and sentence, in case of conviction in a criminal action before a justice of the peace, shall be that the defendant pay the amount of the fine and costs to the state.

(b) The justice may direct the defendant:

(1) to pay the entire fine and costs when sentence is pronounced; or

(2) to pay the entire fine and costs at some later date; or

(3) to pay a specified portion of the fine and costs at designated intervals.

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APPEALS – STATE

Go to the Local Appellate Court and ask for a copy of their Local District Rules.

One document that is filed is:  The Appeals Mediation Program Docketing Statement.  This tells, What type of Case, how to Docket the case, how to schedule and everything else.

Do not get caught up in Mediation of the Case, this will only delay the case.

Satty White v. State 600, SW, 2d, 277

Fundamental Errors of Court are:

            1. Actions of court which do not follow procedures, damage you.

            2. If they deprive you of a fair and impartial trial, damage you.

NOTE:  In a Non - Court of Record, in an appeal, they try to say that nothing happened at the lower court, & let’s start all over. You file a Motion to Dismiss, because the appellate court does not have original jurisdiction to start a proceeding, & that the previous court was not a court, the judge was not a judge, and the attorney was not an attorney.

In a Court of Record, you must get a copy of the Government Code and read Chapter 30 at least three times, so you don’t miss any part of the appeal process.  A Must!

To Appeal out of a Non - Court of Record, you only need a Surety Bond, then file the Motion to Appeal.  The court may have a simple form to fill out.  As if an Appeals Bond, they might charge you twice whatever the final ruling was when you lost in the Non-Court of Record.  So when you are found “guilty,” even though the jury dropped the fine to nothing, the judge might make-up a random giant court cost to bring the total up.  THEN they double that total as the Bond.  Is this legal or legitimate for the judge, or just business as usual?  If they have no oversight, they have no fear.  But look at Gov. Code 30.270, below.

You must file a Notice to appeal (which may be that simple form, for the non-court of record).

 Notice of Intent to Appeal - You must indicate to the clerk what you expect them to prepare for transmittal to the Appeals Court.  (From a Non-Court of Record and a Class C Misdemeanor traffic “offense,” maybe only the complaint will be sent forward.  You can request more—see Gov. Code 30.271, below.)

You can take the Documents to the Appellate Court yourself and make copies on your way there or have the Clerk of the Appellate Court make them for a small fee.  Do not ask for copies from the clerk of the original court while they are getting them ready for the Appellate Court, or the copies may be $7.00 a copy.

The Docket in Texas is called a Transcript Docket - This document states when and what was done since the case started.

The Court Transcript - sometimes called the Statement of Facts - is a document which has all testimony type written during the trial.

You have 120 days to prepare the documents for transmission to the Appeals Court.

After the papers have been submitted to the court, you have 30 days to file your Appeal Brief.

Appeals Check Off List

1. A motion for a new trial in a court of record must be filed within 10 days of the final judgment.
2. The motion for a new trial was filed with the trial clerk on_____.
3. A notice of Appeal in a court of record must be filed within 10 days after the motion for a new trial is denied.
4. The Notice of Appeal was filed with the trial court clerk on _____.
5. The appeal bond in a court of record must be filed within 10 day after the motion for a new trial was denied. Texas Government Code Section 30.00015.
6. An appeal may be taken by the defendant from every final judgment rendered upon a personal bond, bail bond or bond taken for the prevention or suppression of offenses, where such judgment is for twenty dollars or more, exclusive of costs, but not otherwise. TCCrP Article 44.42
7. If the court finds that the appeal bond is not sufficient, then the court must let the accused amend his appeal bond in the manner designated by the court. TCCrP Article 44.15
8. An appeal to the county court from a municipal court of record may be based only on errors reflected in the record. TCCrP Article 44.17
9. The courts of appeals or the Court of Criminal Appeals may reverse the judgment in a criminal action, as well upon the law as upon the facts. TCCrP Article 44.25
10. In misdemeanor cases affirmed on appeal from a municipal court, the fine imposed on appeal and the costs imposed on appeal shall be collected from the defendant, and the fine of the municipal court when collected shall be paid into the municipal treasury. TCCrP Article 44.281
11. Appellant's failure to file his brief in the time prescribed shall not authorize a dismissal of the appeal by the Court of Appeals or the Court of Criminal Appeals, nor shall the Court of Appeals or the Court of Criminal Appeals, for such reason, refuse to consider appellant's case on appeal. TCCrP Article 44.33(b)
12. You need the certification document from the trial judge showing your right to appeal his guilty verdict. TRAP 25.2 (a)(2).
13. The record must include copies of the indictment or information, any special plea or defense motion that was presented to the court and overruled. TRAP 34.5 (a)(2)
14. The record must include copies of the court's docket sheet. TRAP 34.5 (a)(3)
15. The record must include copies of the court's charge and the jury's verdict, or the court's findings of fact and conclusions of law. TRAP 34.5 (a)(4)
16. The record must include copies of the court's judgment or other order that is being appealed. TRAP 34.5 (a)(5)
17. The record must include copies of any request for findings of fact and conclusions of law, any post-judgment motion, and the court's order on the motion. TRAP 34.5 (a)(6).
18. The record must include copies of the notice of appeal. TRAP 34.5 (a)(7)
19. The record must include copies of any request for a reporter’s record, including any statement of points or issues under Rule 34.6(c). TRAP 34.5 (a)(9)
20. The record must include copies of any request for preparation of the clerk’s record. TRAP 34.5 (a)(10)
21. The record must include in criminal cases, the trial court's certification of the defendant's right of appeal under Rule 25.2. TRAP 34.5 (a)(12)
22. The record must include subject to TRAP 34.5 (b), any filing that a party designates to have included in the record. TRAP 34.5 (a)(13)
23. At any time before the clerk’s record is prepared, any party may file with the trial court clerk a written designation specifying items to be included in the record. TRAP 34.5 (b)(1)
24. A party requesting that an item be included in the clerk’s record must specifically describe the item so that the clerk can readily identify it. The clerk will disregard a general designation, such as one for “all papers filed in the case.” TRAP 34.5 (b)(2)
25. An appellate court must not refuse to file the clerk’s record or a supplemental clerk’s record because of a failure to timely request items to be included in the clerk’s record. TRAP 34.5 (b)(4)
26. If a relevant item has been omitted from the clerk’s record, the trial court, the appellate court, or any party may by letter direct the trial court clerk to prepare, certify, and file in the appellate court a supplement containing the omitted item. TRAP 34.5 (c)(1)
27. If the appellate court in a criminal case orders the trial court to prepare and file findings of fact and conclusions of law as required by law, or certification of the defendant's right of appeal as required by these rules, the trial court clerk must prepare, certify, and file in the appellate court a supplemental clerk’s record containing those findings and conclusions. TRAP 34.5 (c)(2)
28. If a filing designated for inclusion in the clerk’s record has been lost or destroyed, the parties may, by written stipulation, deliver a copy of that item to the trial court clerk for inclusion in the clerk’s record or a supplement. If the parties cannot agree, the trial court must — on any party's motion or at the appellate court's request — determine what constitutes an accurate copy of the missing item and order it to be included in the clerk’s record or a supplement. TRAP 34.5 (e)
29. In a criminal case, the clerk’s record must be made in duplicate. TRAP 34.5 (g)
30. The clerk may consult with the parties concerning the contents of the clerk’s record. TRAP 34.5 (h)
31. If the proceedings were electronically recorded, the reporter’s record consists of certified copies of all tapes or other audio-storage devices on which the proceedings were recorded, any of the exhibits that the parties to the appeal designate, and certified copies of the logs prepared by the court recorder under Rule 13.2. TRAP 34.6 (a)(2).
32. Request to Court Reporter. At or before the time for perfecting the appeal, the appellant must request in writing that the official reporter prepare the reporter’s record. The request must designate the exhibits to be included. A request to the court reporter — but not the court recorder — must also designate the portions of the proceedings to be included. TRAP 34.6 (b)(1)
33. Filing. The appellant must file a copy of the request with the trial court clerk. TRAP 34.6 (b)(2)
34. Costs; Requesting Unnecessary Matter. Additions requested by another party must be included in the reporter’s record at the appellant's cost. TRAP 34.6 (c)(3)
35. Criminal Cases. In a criminal case, if the statement contains a point complaining that the evidence is insufficient to support a finding of guilt, the record must include all the evidence admitted at the trial on the issue of guilt or innocence and punishment. TRAP 34.6 (c)(5)
36. If anything relevant is omitted from the reporter’s record, the trial court, the appellate court, or any party may by letter direct the official court reporter to prepare, certify, and file in the appellate court a supplemental reporter’s record containing the omitted items. Any supplemental reporter’s record is part of the appellate record. TRAP 34.6 (d)
37. Correction of Inaccuracies by Agreement. The parties may agree to correct an inaccuracy in the reporter’s record, including an exhibit, without the court reporter's recertification. TRAP 34.6 (e)(1)
38. Correction of Inaccuracies by Trial Court. If the parties cannot agree on whether or how to correct the reporter's record so that the text accurately discloses what occurred in the trial court and the exhibits are accurate, the trial court must - after notice and hearing - settle the dispute. If the court finds any inaccuracy, it must order the court reporter to conform the reporter’s record (including text and any exhibits) to what occurred in the trial court, and to file certified corrections in the appellate court. TRAP 34.6 (e)(2)
39. If the dispute arises after the reporter’s record has been filed in the appellate court, that court may submit the dispute to the trial court for resolution. The trial court must then proceed as under subparagraph (e)(2). TRAP 34.6 (e)(3)
40. The appellant has a right to new trial if there is a problem with the court record that cannot be resolved. TRAP 34.6 (f)
41. On any party's motion or its own initiative, the appellate court may direct the trial court clerk to send it any original exhibit. TRAP 34.6 (g)(2)
42. In a criminal case in which a party requests a reporter’s record, the court reporter must prepare a duplicate of the reporter’s record and file it with the trial court clerk. In a case where the death penalty was assessed, the court reporter must prepare two duplicates of the reporter’s record. TRAP 34.6 (h)
43. From time to time, the Supreme Court and the Court of Criminal Appeals may set the fee that the court reporters may charge for preparing the reporter’s record. TRAP 34.6 (i)
44. The appellate record must be filed in the appellate court if a timely motion for new trial is filed and denied, within 120 days after the date the sentence is imposed or suspended in open court. TRAP 35.2 (b)
45. The trial court clerk is responsible for preparing, certifying, and timely filing the clerk’s record if a notice of appeal has been filed, and in criminal proceedings, the trial court has certified the defendant's right of appeal, as required by Rule 25.2(d); and (2) the party responsible for paying for the preparation of the clerk’s record has paid the clerk's fee, has made satisfactory arrangements with the clerk to pay the fee, or is entitled to appeal without paying the fee. TRAP 35.3 (a)(1)
46. The official or deputy reporter is responsible for preparing, certifying, and timely filing the reporter’s record if a notice of appeal has been filed, the appellant has requested that the reporter’s record be prepared, and the party responsible for paying for the preparation of the reporter’s record has paid the reporter’s fee, or has made satisfactory arrangements with the reporter to pay the fee, or is entitled to appeal without paying the fee. TRAP 35.3 (b)
47. The trial and appellate courts are jointly responsible for ensuring that the appellate record is timely filed. The appellate court must allow the record to be filed late when the delay is not the appellant’s fault, and may do so when the delay is the appellant’s fault. The appellate court may enter any order necessary to ensure the timely filing of the appellate record. TRAP 35.3 (c)

Texas Code of Criminal Procedure

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.

Gov. Code 30.269 -  (a)The county criminal court of the county has jurisdiction over an appeal.

            (b) The appellate court shall determine each appeal from a municipal court of record conviction on the basis of the errors that are set forth in the defendant's motion for a new trial and are presented in the transcript an statement of facts prepared from the municipal court of record proceeding leading to the conviction.

            (c) To perfect an appeal, the defendant must file a written motion for a new trial not later than the 10th day after the date on which judgment is rendered. The motion must set forth the points of error of which the defendant complains. A point of error not distinctly set forth in the motion is waved. The motion or an amended motion may be amended by leave of court at any time before action on the motion is taken, but no later than the 20th day after the date on which the original or amended motion is filed. If the court does not act on the motion before the expiration of the 20 days allowed for determination of the motion, the original or amended motion is overruled by operation of law.

            (d) To perfect an appeal, the defendant must give a written notice of appeal and must file the notice with the court not later than the 10th day after the date on which the motion is overruled.

Gov. Code 30.270 -  (a) The defendant may not take an appeal until the defendant files an appeal bond with the municipal court of record.  The bond must be approved by the court and must be filed not later than the 10th day after the date on which the motion for a new trial is overruled.

            (b) The appeal bond must be in the amount of $50.00 or double the amount of the fines and cost adjudged against the defendant, whichever is greater.

            (c) The record on appeal consists of a transcript and, if necessary to the appeal, a statement of facts.

Gov. Code 30.271 -  (a) On written request of the defendant, the clerk of the municipal court of record shall prepare under his hand. The Transcript must include copies of:

            (1) the complaint;

            (2) material docket entries mad by the court;

            (3) the jury charge and verdict in a jury trial;

            (4) the judgment;

            (5) the motion for new trial;

            (6) the notice of appeal;

            (7) written motions and pleas;

            (8) written orders of the court; and

            (9) any bills of exception filed with the court.

(b) The clerk may use mechanical or videotape recordings.

(c) The bills of exception must be filed with the clerk not later than the 60th day after the date on which the notice of appeal is given or filed.

Gov. Code 30.272 -  A statement of facts included in the record on appeal must contain:

            (1) a transcription of all or part of the court proceedings in the case that is prepared from mechanical or videotape recordings of the proceedings.

Gov. Code 30.273 -  (a) Not later than the 60th day after the date on which the notice of appeal is given or filed, the parties must file with the clerk of the municipal court of record:

            (1) the statement of acts;

            (2) a written description of material to be included in the transcript in addition to the required material; and

            (3) any material to be included in the transcript that is not in the custody of the clerk.

(b) On completion of the record, the municipal judge shall approve the record in the manner provided for record completion notification and approval in the court of appeals.

(c) After the court approves the record, the clerk shall promptly send it to the appellate court clerk for filing. The appellate court clerk shall notify the defendant and the prosecuting attorney that the record has been filed.

Gov. Code 30.274 - (a) A defendant's brief on appeal from a municipal court of record must present points of error in the manner required by law for a brief on appeal to the court of appeals.

(b) The defendant must file the brief with the appellate court clerk not later than the 15th day after the date on which the transcript and statement of facts are filed with that clerk. The clerk shall notify the prosecuting attorney of the filing.

(c) The prosecuting attorney must file the appellee's brief with the appellate court clerk not later than the 15th day after the date on which the defendant's brief is filed.

(d) Each party, on filing the part's brief, shall deliver a copy of the brief to the opposing party.

Gov. Code 30.278 -  The defendant has the right to appeal to the court of appeals if the fine assessed against the defendant exceeds $100 and if the judgment is affirmed by the appellate court.

            (1) the record and briefs on appeal in the appellate court and the transcript of proceedings in the appellate court constitute the record and briefs on appeal to the court of appeals unless the rules of the court of criminal appeals provide otherwise; and

            (2) the record and briefs shall be filed directly with the court of appeals.

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MUNICIPAL COURT

After the trial, by the next day, file a Motion for New Trial because of errors of the court.  This is part of exhausting your administrative remedies. (But do this ONLY if found guilty.)

In a Court of Record Court, you must get a copy of the Government Code and read Chapter 30 at least three times, so you don’t miss any part of the appeal process.  A Must!

To Appeal out of a Non - Court of Record, you only need a Personal Bond, then file the Motion to Appeal. (They probably have a simple form.)

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JUSTICE OF THE PEACE

NOTE: This guy may or may not be an attorney.  He has only been to a minimal amount of schooling to know what the law is.  Don’t assume that he knows a tenth of what’s in this book.  Don’t get mad if he doesn’t understand what you’re trying to say.  You’re mainly there to educate him and keep him from getting money from someone else.  You could do more damage to this guy with a counter claim than most any judge.  Most of the time he will let his cronies—the city attorneys, or even his clerks, arraign the people and run the sheep through the shearing.  Refuse to talk with the city attorney; you want to see the judge.  They are your adversaries and they do not have the authority to do what their doing and they will not dismiss your case.

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.

Texas Code of Criminal Procedure

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.

Tex. Cod. of Crim. Proc. 45.38 -  The rules of evidence shall apply to such actions in justice courts.

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COUNTY COURTS

NOTE: You will notice below that there are three distinct county courts in Texas.

Texas Code of Criminal Procedure

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.

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.

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

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.

NOTE: Bail is only required for jailable offenses. Class C Misdemeanor violations are offenses that require a fine only.

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STATE DISTRICT COURTS

The State District Courts are like the Federal District Courts whereby the District Judges appoint a magistrate to do their dirty work, so you then appeal to the district judge about what the magistrate did before appealing to the State Appellate Court.  The main thing is to find the District Clerk and get the local rules of court.  Then follow the yellow brick road.

Article 5, Section 17 especially focus on the duty of district court directing the charges of misdemeanors to inferior court. Find the provision in this document and read it.

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TEXAS SUPREME COURT

Main thing: get a copy of the rules and go by them.

http://www.supreme.courts.state.tx.us/

* If you have questions or comments regarding the Procedure and Rules, please contact Jody Hughes, Rules Attorney, Supreme Court, at 512-463-1353.

Supreme Court Building

201 West 14th., Rm. 104

Austin, Texas 78701

Supreme Court

P.O. Box 12248

Austin, Texas 78711  

Phone: (512) 463-1312

Fax:     (512) 463-1365

Clerk of the Court    Mr. Blake A. Hawthorne (512) 463-1312

Chief Deputy Clerk  Claudia Jenks at claudia.jenks@txcourts.gov           

General Counsel:      Jennifer Cafferty (512) 463-6645
Staff Attorney for Public information: Osler McCarthy (512) 463- 1441  osler.mccarthy@courts.state.tx.us

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MANDAMUS

You must file a Notice of Writ of Mandamus, if you want something done and the agent refused to comply.

Writ of Mandamus - This is an Order of a High Court to a Lower Court, ordering them to do certain things.  If a lower court refuses to accept certain documents to be filed into evidence, you do a Writ of Mandamus to make the lower court do what's right.

Procedures -the writ must have a statement of facts of the allegations against the parties the writ is directed.  The writ must be accompanied with an Application of request which states why you are bringing the writ.  Then you need an Affidavit which is in support of the writ.  Next is an Order for the writ.  That Order has to be with every Writ you put in because the judge will not write one up.  The Last thing is the Writ itself - the writ demands performance or the non performance of some act by the persons to whom the writ is directed.

Texas Code of Criminal Procedure

TCCrP 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.

NOTE: Mandamus used to make a lower court judge to act right has been found to be a problem with the upper courts. We have found no explanation to this, the upper courts just deny the application with no reason. As shown above, the mandamus is used to protect the upper court's jurisdiction or to enforce their judgments, but not to make a lower court act right.

United States Code

Title 28 § Sec. 1361. Action to compel an officer of the United States to perform his duty

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

You must file a Notice of Writ of Error, when errors occur in the proceeding.

Writ of Error - is errors in the transcript or the proceedings.  It is not Appealable.  This has to do with the error of the proceedings, not the error of the procedure.  Goes to the same court.  You have the Right to file a Writ of Error.

Writ of Error Quarum Novus - a Writ of Error on the King's Bench.  A procedural tool that purpose is to correct errors of fact only, which has to be without negligence on the defendant's part, was not made under duress, fraud or excusable mistake, were facts did not appear of the face of the record, and as such is known.

Writ of Error Quarum Vocus - a Writ of Error for the higher court to go back and review the Quarum Novus of the lower court.

Motion for Reconsideration - is used like a Writ of Error but to motion the same court to Consider of what it has done so it can change the errors which had occurred during the trial.

You must file a Notice of Writ of Certiorari

Writ of Certiorari - is a write up of Procedural Error.  It is Appealable.  This has to do with the error of the procedure not the error of the proceedings.  Goes to a higher Court.  This is not a Right but determined by a higher court if it will be accepted.

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TEXAS ETHICS COMMITTEE

This is where you squeal on the Judge and the Attorneys.

 

Filing a Complaint on a Texas Judge

The State Commission on Judicial Conduct is mandated by the Texas Constitution to investigate and prosecute allegations of misconduct by judges in Texas.  The Commission has authority over Texas judges, including appellate, district, county, justice and municipal level judges, visiting judges, and associate judges.  The Commission has no jurisdiction over federal officials, mediators, arbitrators, or administrative judicial officers.  There is a complaint form which is used to open a file.  The form may be obtained from and should be mailed to:

STATE COMMISSION ON JUDICIAL CONDUCT
P.O. BOX 12265
AUSTIN, TEXAS 78711-2265

***

Check out:       The Texas Center For Ethics and Professionalism

                        P.O. Box 12487

                        Austin, Texas 78711-2487

                        1414 Colorado, Suite 600A

                        Austin, Texas 78701

                        1-800-204-2222  ext. 2161

                        Fax 512-463-1459

                        http://www.txethics.org/

***

CODE OF JUDICIAL CONDUCT
&
JUDICIAL ETHICS OPINIONS

*
APPLICABILITY TO EMPLOYEE OF JUDGE

Opinion No. 106 (1987)

QUESTION: Is a person who is an employee of a judge or a group of judges subject to the provisions of the Code of Judicial Conduct?

ANSWER: Canon 3B(2) states, "A judge should require his or her staff and court officials subject to the judge's direction and control to observe the standards of this code."  (Emphasis added).

The committee is informed that the person is hired by a group of judges and appears to be under the direction and control of the judge(s).  Under such circumstances, it is the duty of the judge(s) who employ that person to see that the employee complies with the provisions of the code.

The code makes no provisions for the sanctions against the employee for non-compliance with the code, but it does provide sanctions against the judge(s) in the event of non-compliance by the judge(s) in not requiring personnel under the direction and control of the judge(s) to adhere to the provisions of the code.

DISCIPLINARY ACTION AGAINST LAWYER

Opinion No. 45 (1979)

QUESTION:: Does a judge subject to the Code of Judicial Conduct have an obligation to initiate disciplinary measures against a lawyer when he becomes aware that such lawyer has been guilty of unprofessional conduct or has presented false information to the court in order to obtain the entry of a judgment?

ANSWER: Under Disciplinary Rules promulgated by the Supreme Court of Texas, "A lawyer shall not engage in conduct that is prejudicial to the administration of justice." DR 1-102(5).

Canon 3B(3) of the Code of Judicial Conduct reads: "A judge should take or initiate appropriate disciplinary measures against a lawyer for unprofessional conduct of which the judge may become aware."

The Committee is of the opinion that the knowing presentation of false information to a court in order to obtain the entry of a judgment is unprofessional conduct as defined in DR 1-102(5) and that when the judge becomes aware thereof, it becomes his duty to "initiate appropriate disciplinary measures" against such lawyer.

Judicial Neutrality Prohibits J.P. "War On Hot Checks"

Ethics Opinion No. 225 (1998)

QUESTION NO. 1: May a county-wide decal issued as a part of a "declared war on hot checks" that includes the names of the district attorney, sheriff and constable and contains a generic warning against passing hot checks also include the justice of the peace's name?

ANSWER:  No.  Canon 3A provides that a judge must act at all times in a manner that promotes impartiality of the judiciary.  If a justice of the peace allows his or her name to appear on a decal, along with the names of the prosecutor and law enforcement officials, the clear implication is that the judge is acting in conjunction with these entities to prevent and prosecute issuance of hot checks.  This violates Canon 3A by implying that the judge is partial to law enforcement, the judge will assume the accused is guilty, and that the judge is indeed assisting law enforcement in hot check prosecution efforts.  Thus, a judge should not permit use of his or her name in a general law enforcement program.

QUESTION NO. 2:  Justices of the peace across Texas "in reality.... conduct an executive branch prosecutorial function in hot check cases."  The victim files the complaint and all relevant evidence in the justice of the peace office, the J.P. office then investigates and prosecutes the case by interviewing potential witnesses and contacting the accused "to pay restitution... ."  Is this appropriate judicial conduct?

ANSWER: Canon 1 of the Code of Judicial Conduct states that a judge should observe standards to preserve the independence of the judiciary.  When canon 1 speaks of independence, it refers to the judicial branch of government that must remain separate from the other two branches under Article II, Sec. 1, of the Texas Constitution.  The executive branch includes prosecutors, sheriffs and constables; therefore, a judge cannot at any time act as a prosecutor in any capacity.

If the inquiring justice of the peace, or any judge, is prosecuting cases within its jurisdiction, especially contacting the accused for guilty plea arrangements, then the judge is absolutely, unequivocally, and indefensibly violating both the Code of Judicial Conduct and the Texas Constitution.  Further activity in this vein must immediately cease.

***

2d Session

H. R. 3396 (not to be confused with H.R. 3168 of same name & year)

To establish standards of conduct for Department of Justice employees, and to establish a review board to monitor compliance with such standards.

IN THE U.S. HOUSE OF REPRESENTATIVES

March 5, 1998 --Mr. MCDADE (for himself and Mr. MURTHA) introduced…

{While the bill died in committee (and did so again as H.R. 2424 to the 110^th), it was reintroduced to the 111^th Congress, June 24, 2009, by Rep. Ron Paul as H.R. 3021.  It would appear Judiciary Committees don’t like the concept of being held accountable!!}

 

A BILL

To establish standards of conduct for Department of Justice employees, and to establish a review board to monitor compliance with such standards.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Citizens Protection Act of 1998'.

SEC. 2. INTERPRETATION.

It is the intent of this Act that the term `employee' shall be interpreted so as to include, but not be limited to, an attorney, investigator, special prosecutor, or other employee of the Department of Justice as well as an attorney, investigator, accountant, or a special prosecutor acting under the authority of the Department of Justice.

TITLE I--ETHICAL STANDARDS FOR FEDERAL PROSECUTORS

SEC. 101. ETHICAL STANDARDS FOR FEDERAL PROSECUTORS.

(a) IN GENERAL- Chapter 31 of title 28, United States Code, is amended by adding at the end the following:

`Sec. 530B. Ethical standards for attorneys for the Government

`(a) An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that State.

`(b) The Attorney General shall make and amend rules of the Department of Justice to assure compliance with this section.

`(c) As used in this section, the term `attorney for the Government' includes any attorney described in section 77.2(a) of part 77 of title 28 of the Code of Federal Regulations.'.

(b) CLERICAL AMENDMENT- The table of sections at the beginning of such chapter is amended by adding at the end the following new item:

`530B. Ethical standards for attorneys for the Government.'.

TITLE II--PUNISHABLE CONDUCT

SEC. 201. PUNISHABLE CONDUCT.

(a) VIOLATIONS- The Attorney General shall establish, by plain rule, that it shall be punishable conduct for any Department of Justice employee to--

(1) in the absence of probable cause seek the indictment of any person;

(2) fail promptly to release information that would exonerate a person under indictment;

(3) intentionally mislead a court as to the guilt of any person;

(4) intentionally or knowingly misstate evidence;

(5) intentionally or knowingly alter evidence;

(6) attempt to influence or color a witness' testimony;

(7) act to frustrate or impede a defendant's right to discovery;

(8) offer or provide sexual activities to any government witness or potential witness;

(9) leak or otherwise improperly disseminate information to any person during an investigation; or

(10) engage in conduct that discredits the Department.

(b) PENALTIES- The Attorney General shall establish penalties for engaging in conduct described in subsection (a) that shall include--

(1) probation;

(2) demotion;

(3) dismissal;

(4) referral of ethical charges to the bar;

(5) loss of pension or other retirement benefits;

(6) suspension from employment; and

(7) referral of the allegations, if appropriate, to a grand jury for possible criminal prosecution.

SEC. 202. COMPLAINTS.

(a) WRITTEN STATEMENT- A person who believes that an employee of the Department of Justice has engaged in conduct described in section 201(a) may submit a written statement, in such form as the Attorney General may require, describing the alleged conduct.

(b) PRELIMINARY INVESTIGATION- Not later than 30 days after receipt of a written statement submitted under subsection (a), the Attorney General shall conduct a preliminary investigation and determine whether the allegations contained in such written statement warrant further investigation.

(c) INVESTIGATION AND PENALTY- If the Attorney General determines after conducting a preliminary investigation under subsection (a) that further investigation is warranted, the Attorney General shall within 90 days further investigate the allegations and, if the Attorney General determines that a preponderance of the evidence supports the allegations, impose an appropriate penalty.

SEC. 203. MISCONDUCT REVIEW BOARD.

(a) ESTABLISHMENT- There is established as an independent establishment a board to be known as the `Misconduct Review Board' (hereinafter in this Act referred to as the `Board').

(b) MEMBERSHIP- The Board shall consist of--

(1) three voting members appointed by the President, one of whom the President shall designate as Chairperson;

(2) two non-voting members appointed by the Speaker of the House of Representatives, one of whom shall be a Republican and one of whom shall be a Democrat; and

(3) two non-voting members appointed by the Majority Leader of the Senate, one of whom shall be a Republican and one of whom shall be a Democrat.

(c) NON-VOTING MEMBERS SERVE ADVISORY ROLE ONLY- The non-voting members shall serve on the Board in an advisory capacity only and shall not take part in any decisions of the Board.

(d) SUBMISSION OF WRITTEN STATEMENT TO BOARD- If the Attorney General makes no determination pursuant to section 202(b) or imposes no penalty under section 202(c), a person who submitted a written statement under section 202(a) may submit such written statement to the Board.

(e) REVIEW OF ATTORNEY GENERAL DETERMINATION- The Board shall review all determinations made by the Attorney General under sections 202(b) or 202(c).

(f) BOARD INVESTIGATION- In reviewing a determination with respect to a written statement under subsection (e), or a written statement submitted under subsection (d), the Board may investigate the allegations made in the written statement as the Board considers appropriate.

(g) SUBPOENA POWER-

(1) IN GENERAL- The Commission may issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence relating to any matter under investigation by the Commission.  The attendance of witnesses and the production of evidence may be required from any place within the United States.

(2) FAILURE TO OBEY A SUBPOENA- If a person refuses to obey a subpoena issued under paragraph (1), the Commission may apply to a United States district court for an order requiring that person to appear before the Commission to give testimony, produce evidence, or both, relating to the matter under investigation. The application may be made within the judicial district where the hearing is conducted or where that person is found, resides, or transacts business.  Any failure to obey the order of the court may be punished by the court as civil contempt.

(3) SERVICE OF SUBPOENAS- The subpoenas of the Commission shall be served in the manner provided for subpoenas issued by a United States district court under the Federal Rules of Civil Procedure for the United States district courts.

(4) SERVICE OF PROCESS- All process of any court to which application is made under paragraph (2) may be served in the judicial district in which the person required to be served resides or may be found.

(h) MEETINGS- The Board shall meet at the call of the Chairperson or a majority of its voting members. All meetings shall be open to the public. The Board is authorized to sit where the Board considers most convenient given the facts of a particular complaint, but shall give due consideration to conducting its activities in the judicial district where the complainant resides.

(i) DECISIONS- Decisions of the Board shall be made by majority vote of the voting members.

(j) AUTHORITY TO IMPOSE PENALTY- After conducting such independent review and investigation as it deems appropriate, the Board by a majority vote of its voting members may impose a penalty, including dismissal, as provided in section 201(b) as it considers appropriate.

(k) COMPENSATION-

(1) PROHIBITION OF COMPENSATION OF FEDERAL EMPLOYEES- Members of the Board who are full-time officers or employees of the United States, including Members of Congress, may not receive additional pay, allowances, or benefits by reason of their service on the Board.

(2) TRAVEL EXPENSES- Each member shall receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code.

(l) EXPERTS AND CONSULTANTS- The Board may procure temporary and intermittent services under section 3109(b) of title 5, United States Code, but at rates for individuals not to exceed $200 per day.

(m) STAFF OF FEDERAL AGENCIES- Upon request of the Chairperson, the head of any Federal department or agency may detail, on a reimbursable basis, any of the personnel of that department or agency to the Board to assist it in carrying out its duties under this Act.

(n) OBTAINING OFFICIAL DATA- The Board may secure directly from any department or agency of the United States information necessary to enable it to carry out this Act. Upon request of the Chairperson of the Board, the head of that department or agency shall furnish that information to the Board.

(o) MAILS- The Board may use the United States mails in the same manner and under the same conditions as other departments and agencies of the United States.

(p) ADMINISTRATIVE SUPPORT SERVICES- Upon the request of the Board, the Administrator of General Services shall provide to the Board, on a reimbursable basis, the administrative support services necessary for the Board to carry out its responsibilities under this Act.

(q) CONTRACT AUTHORITY- The Board may contract with and compensate government and private agencies or persons for services, without regard to section 3709 of the Revised Statutes (41 U.S.C. 5).

[( ) SUBPOENA POWER-

(1) IN GENERAL- The Commission may issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence relating to any matter [under investigation by the Commission] [which the Commission is empowered to investigate by section ]. The attendance of witnesses and the production of evidence may be required from any place within [the United States] [a State] [a judicial district] at any designated place of hearing within the [United States] [that State] [that judicial district].

(2) FAILURE TO OBEY A SUBPOENA- If a person refuses to obey a subpoena issued under paragraph (1), the Commission may apply to a United States district court for an order requiring that person to appear before the Commission to give testimony, produce evidence, or both, relating to the matter under investigation. The application may be made within the judicial district where the hearing is conducted or where that person is found, resides, or transacts business. Any failure to obey the order of the court may be punished by the court as civil contempt.

(3) SERVICE OF SUBPOENAS- The subpoenas of the Commission shall be served in the manner provided for subpoenas issued by a United States district court under the Federal Rules of Civil Procedure for the United States district courts.

(4) SERVICE OF PROCESS- All process of any court to which application is made under paragraph (2) may be served in the judicial district in which the person required to be served resides or may be found.]

END

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CONTEMPT

You always need to be aware of the judge issuing a contempt charge for any reason that he can dream up.

"If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court." Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 441 (1911).

The character of the relief imposed is thus ascertainable by applying a few straightforward 632*632 rules. If the relief provided is a sentence of imprisonment, it is remedial if "the defendant stands committed unless and until he performs the affirmative act required by the court's order," and is punitive if "the sentence is limited to imprisonment for a definite period." Id., at 442. If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court's order. These distinctions lead up to the fundamental proposition that criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings, including the requirement that the offense be proved beyond a reasonable doubt. See, e. g., Gompers, supra, at 444; Michaelson v. United States ex rel. Chicago, St. P., M. & O. R. Co., 266 U. S. 42, 66 (1924).

Any sentence "must be viewed as remedial," and hence civil in nature, "if the court conditions release upon the contemnor's willingness to [comply with the order]."

Hicks v Feiock, 85 U.S. 624 (1988)

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BARRATRY

NOTE: This is what you charge the attorney with for trying to represent the State of Texas when they have no delegated authority to do so.

Texas Penal Code, Sec. 38.12.  Barratry

(a) A person commits an offense if, with intent to obtain an economic benefit the person:

            (1) knowingly institutes a suit or claim that the person has not been authorized to pursue;

            (2) solicits employment, either in person or by telephone, for himself or for another;

            (3) pays, gives, or advances or offers to pay, give, or advance to a prospective client money or anything of value to obtain legal representation from the prospective client;

            (4) pays or gives or offers to pay or give a person money or anything of value to solicit employment;

            (5) pays or gives or offers to pay or give a family member of a prospective client money or anything of value to solicit employment; or

            (6) accepts or agrees to accept money or anything of value to solicit employment.

(b) A person commits an offense if the person:

            (1) is an attorney, chiropractor, physician, surgeon, or private investigator licensed to practice in this state or any person licensed, certified, or registered by a health care regulatory agency of this state; and

            (2) knowingly:

                        (A) finances or invests funds the person knows or believes are intended to further the commission of an offense under Subsection (a); or

                        (B) accepts employment within the scope of the person's license, registration, or certification that results from the solicitation of employment in violation of Subsection (a).

(c) It is an exception to prosecution under Subsection (a) or (b) that the person's conduct is authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court.

(d) A person commits an offense if the person:

(1)   is an attorney, chiropractor, physician, surgeon, or private investigator licensed to practice in this state or any person licensed, certified, or registered by a health care regulatory agency of this state;

            (2) with the intent to obtain professional employment for himself or for another, sends or knowingly permits to be sent to an individual who has not sought the person's employment, legal representation, advice, or care a written communication that:

                        (A) concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person and that was mailed before the 31st day after the date on which the accident or disaster occurred;

                        (B) concerns a specific matter and relates to legal representation and the person knows or reasonably should know that the person to whom the communication is directed is represented by a lawyer in the matter;

                        (C) concerns an arrest of or issuance of a summons to the person to whom the communication is addressed or a relative of that person and that was mailed before the 31st day after the date on which the arrest or issuance of the summons occurred;

                        (D) concerns a lawsuit of any kind, including an action for divorce, in which the person to whom the communication is addressed is a defendant or a relative of that person, unless the lawsuit in which the person is named as a defendant has been on file for more than 31 days before the date on which the communication was mailed;

                        (E) is sent or permitted to be sent by a person who knows or reasonably should know that the injured person or relative of the injured person has indicated a desire not to be contacted by or receive communications concerning employment;

                        (F) involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence; or

                        (G) contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.

(e) For purposes of Subsection (d)(2)(E), a desire not to be contacted is presumed if an accident report reflects that such an indication has been made by an injured person or that person's relative.

(f) An offense under Subsection (a) or (b) is a felony of the third degree.

(g) Except as provided by Subsection (h), an offense under Subsection (d) is a Class A misdemeanor.

(h) An offense under Subsection (d) is a felony of the third degree if it is shown on the trial of the offense that the defendant has previously been convicted under Subsection (d).

(i) Final conviction of felony barratry is a serious crime for all purposes and acts, specifically including the State Bar Rules and the Texas Rules of Disciplinary Procedure.

"Creating or confirming by words or conduct, a false impression of law or fact that is likely to affect the judgment of another, in the transaction." Texas State Law on Larceny & Extortion  (TPC) Section 31.01 (2)(a):

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DAMAGES

[Read these carefully; many may likely apply, especially in civil lawsuits.  Emphasis added.]

Damages - Actual, Expenses, Compensatory and Exemplary or Punitive.

Be ready with examples of court case judgments that have awarded similar amounts for such damages.

Average rewarded claim of damages from a jury is around 30% of asked amount.

When plea-bargaining the amount, never take the first offer, which is usually 10% of the amount they will go to. But you should take the usual 30% that the jury would allow.

All Damages should be stated as Wantonly, Maliciously, Knowingly and stated in a manner to show actual damage—as where they failed to do their duty or did actions that were not in their duty.

If the Judge does not have an Oath of Office, he may not follow due process, he is using faulty procedures, and not following the laws of the U.S. Constitution or the laws of the State of Texas.

All errors of due process can and will damage you.

If the Court Clerk signs the Verified Complaint, you are damaged if he/she did not see the offense, when she/he is the Agent of the Principal, which is the Judge.  This makes the Judge the damaged party, and the judge cannot sit in judgment, when he is the damaged party.

If the Judge sends you to his chambers, he is violating Article 1, Section 13, which states that all trials will be OPEN.  If you have to go into his chambers, request to have a witness of your choice.

The City Attorney is impersonating a Public Servant, under Texas Penal Code Sec. 37.11 concerning Texas Constitution Article 5, Section 21, which is a felony of the third degree.

You are damaged if you are not allowed to have legal counsel of choice since the State Bar Assoc. is unconstitutional since 1939.

You do not want a jury trial (if you are being sued or at fault) because the jury can determine the fine; this could damage you further.

The City Attorney is not authorized to prosecute for the State by Art. 5, Sec. 21 of the Texas Constitution; you are damaged because the City Attorney is not bound by Oath to the Constitution.

No Local Rules or Laws of any court can be passed because of Art. 3, Sec. 56 of the Texas Constitution.

Court of Record Courts damage you because:

            1. Art.3, Sec. 56 declares "where a general law can be made applicable, no local or special law shall be enacted."

            2. According to Chapter 45 of the Texas Code of Criminal Procedure, a general law exists to control the appellate procedure of all Texas municipal courts.

1.      The ________ Court of Record Act is a "local law" operating in open conflict with the general law of Chapter 45 of the Texas Code of Criminal Procedure.

            4. Therefore, the Texas state legislature lacked the Constitutional authority to pass the "local law" that authorized ___________ to establish its own Court of Record.

            5. Therefore, the ___________ Court of Record Act any court resulting therefrom is unconstitutional and therefore lacks lawful authority to try cases.

            6. Further, the ___________ Municipal Court of Record's local rules are overly complex, unnecessary, and unconstitutional because they place an unreasonable procedural burden upon myself and others similarly situated, which chills or effectively denies our due process right to appeal.

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REDEMPTION

Redemption process is a way to overcome these corrupt courts. Learn the words of Redemption.

(Do not confuse this with financial “redemption” or “accept-for-value” [a.k.a. AFV, A4V] methods!)

[WRITE IT ON A CARD, IF YOU MUST.  These are sort of like objections, but can also be used in conversation, depositions, etc.  These are questions you would ask the prosecutor or whoever is coming after you.  This legalese is immensely significant and will very likely stop whatever action is taking place, if they cannot answer.  It is typical to just go down the list all at once, as it shuts them down, and if there’s a judge he’ll likely have to let you go (of course, they’re often tyrants, but these will absolutely never hurt you to ask).  If they’re lying about everything, they’re going to stop and think twice, because they sure don’t want to be sued later and lose everything they own.]

           

            When the bailiff calls you up to see the judge, you ask the judge:

1.   What is your name ?

2.   Do you have a claim against me ?

3.   Do you know of anyone who has a claim against me ?

4.   Is there anyone that is present in this court, that has a claim against me ?

5.   I request the Order of the Court to be released to me.

6.   Being no further Public business, am I being detained or am I free to go?

            When the judge says that you are NOT free to go:

7.   Who do you work for?

8.   Who does the prosecutor work for?

9.   Who does the police officer work for?

10. You do not see there is a conflict of interest hear?

11. If you find me Not Guilty, will the entity you work for lose money?

12 I ask that there be a change of Venue where the conflict of interest be removed.

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

CASE CITES

[If all this is new to you, be sure to read these (several pages!).  You will be amazed.  You may not have realized your rights.  Remember, you may have no rights unless you ASSERT them.]

Personal liberty largely consists of the right of locomotion -- to go where and when one pleases -- only so far restrained as the rights of others may make it necessary for the welfare of all other Natural Born Natives and/or Citizens/citizens. THE RIGHT OF THE AFFIANT TO TRAVEL UPON THE PUBLIC HIGHWAY AND TRANSPORT HIS PROPERTY THEREON, by horse-drawn carriage, wagon, or AUTOMOBILE, IS NOT A MERE PRIVILEGE which may be permitted or prohibited at will, BUT A COMMON RIGHT which he has under the right to life, liberty and the pursuit of happiness.  Under this constitutional guarantee one may, therefore, under normal conditions, travel at his inclination, along the public highways or in public places, and while conducting himself in an orderly manner, neither interfering with, nor disturbing another's rights, he will be protected, not only in his person, but in his safe conduct. (emph. added) 11 AM. JUR. (1st). Const. L., Sec. 329 (Page 1135). (Right to travel was so inherently accepted, the Founders felt no need to mention it in the U.S. Constitution.)

It is a rule as old as the law that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear and has been afforded an opportunity to be heard.  Judgment without such citation and opportunity lacks all the attributes of a judicial determination, it is JUDICIAL USURPATION and is oppressive and can never be upheld where justice is fairly administered, 12 Am. Jur. 1st, Const. L., Sec.573, p. 269.

"While an emergency cannot create power and no emergency justifies the violation of any of the provisions of the United States Constitution or States Constitutions. Public emergency such as economic depression for especially liberal construction of constitutional powers and it has been declared that because of national emergency, it is the policy of the courts of times of national peril, so liberally to construed the special powers vested in the chief executive as to sustain an effectuate the purpose there of, and to that end also more liberally to construed the constituted division and classification of the powers of the coordinate branches of the government and in so far as may not be clearly inconsistent  with the constitution." 16 Am. Jur. 2d., Sec. 98:

"Any constitutional provision intended to confer a benefit should be liberally construed in favor of the clearly intended and expressly designated beneficiary." 16 Am. Jur. 2d., Sec.  97:

"Since the constitution is intended for the observance of the judiciary as well as other departments of government and the judges are sworn to support its provisions, the courts are not at liberty to overlook or disregard its commands or counteract evasions thereof, it is their duty in authorized proceedings to give full effect to the existing constitution and to obey all constitutional provisions irrespective of their opinion as to the wisdom or the desirability of such provisions and irrespective of the consequences, thus it is said that the courts should be in our alert to enforce the provisions of the United States Constitution and guard against their infringement by legislative fiat or otherwise in accordance with these basic principles, the rule is fixed that the duty in the proper case to declare a law unconstitutional cannot be declined and must be performed in accordance with the delivered judgment of the tribunal before which the validity of the enactment it is directly drawn into question. If the Constitution prescribes one rule and the statute another in a different rule, it is the duty of the courts to declare that the Constitution and not the statute governs in cases before them for judgment. (emph. added)

16 Am. Jur. 2d., Sec. 155:

"In all instances, where the court exercises its power to invalidate legislation on constitutional grounds, the conflict of the statute, with the constitution must be irreconcilable. Thus a statute is not to be declared unconstitutional unless so inconsistent with the constitution that it cannot be enforced without a violation thereof. A clear incompatibility between law and the constitution must exist before the judiciary is justified holding the law unconstitutional.  This principle is of course in line with the rule that doubts as the constitutionality should be resolved in favor of the constitutionality and the beneficiary." 16 Am. Jur. 2d., Sec. 255:

"The word "LIBERTY" as used in the due process clauses, includes, among other things, the liberty of the citizen to pursue any livelihood or lawful occupation AS A FUNDAMENTAL RIGHT PROTECTED BY THE CONSTITUTION, and many authorities consider the preservation of such right to be one of the INHERENT OR INALIENABLE RIGHTS PROTECTED BY THE CONSTITUTION.  Likewise, the courts have recognized that the right to follow a chosen profession FREE FROM UNREASONABLE GOVERNMENTAL INTERFERENCE comes within the "liberty" (and property) concept of the Fifth Amendment."

(emph. added)  16A Am. Jur. 2d Sec. 562.

"The right of privacy, as an independent and distinctive legal concept, has two main aspects: (1) the general law of privacy, which affords a tort action for damages resulting from an unlawful invasion of privacy, and (2) THE CONSTITUTIONAL RIGHT OF PRIVACY WHICH PROTECTS PERSONAL PRIVACY AGAINST UNLAWFUL GOVERNMENT INVASION.

While the Federal Constitution does not explicitly mention any Right of privacy, the Supreme Court of the United States has declared that THE RIGHT OF PRIVACY IS A FUNDAMENTAL RIGHT GUARANTEED BY THE FEDERAL CONSTITUTION.  This declaration was adopted by Congress when it enacted the Privacy Act of l974.  The Constitutional protected right of privacy has been described by the Supreme Court as THE RIGHT TO BE LET ALONE."

(emph. added) 16A Am. Jur. Section 601.

"In addition to the REQUIREMENT that the regulations governing the use of the highway MUST NOT BE VIOLATIVE OF CONSTITUTIONAL GUARANTEES, the prime essentials of such regulations are REASONABLENESS, impartiality, and definiteness or certainty."  (emph. added)

25 AM. JUR. 1st, Highways, Sec 260

"The terms "Travel" and "traveler" are usually construed in their broad and general sense... so as to include all THOSE WHO RIGHTFULLY USE THE HIGHWAYS vertically and who have occasion to pass over them  FOR THE PURPOSE OF BUSINESS, CONVENIENCE, or PLEASURE." (emph. added)

25 AM. JUR. 1st, Highways, Sec. 427

"Personal liberty, or the right to the enjoyment of life and liberty, is one of the fundamental constitutional strengths, and natural rights, which has been protected by its inclusion as a guarantee in the various constitutions, which is not derived from, nor dependent on the US Constitution, and may not be submitted to a vote, and may not depend upon the outcome of an election. IT IS ONE OF THE MOST SACRED AND VALUABLE RIGHTS... and is regarded as inalienable". (emph. added) 16 CJS, Const. L., Sec. 202 (page 987).

"The word 'automobile' connotes a pleasure vehicle designed for the transportation of persons on highways." (emph. added)

American Mutual Liability Ins. Co., vs. Chaput, 60 A.2d 118, 120; 95 NH 200

"It may be stated, as a general principle of law, that it is for the legislature to determine whether the conditions exist which warrant the exercise of this power; but the question as to what are the subjects of its exercise, is clearly a judicial question. ONE MAY BE DEPRIVED OF HIS LIBERTY AND HIS CONSTITUTIONAL RIGHTS THERETO MAY BE VIOLATED, WITHOUT ACTUAL IMPRISONMENT OR RESTRAINT OF HIS PERSON."  (emph.added)  IN RE AUBREY, 36 Wn 308, 314-315, 78 P. 900 (1915).

"In Barber v. State, 149 Tex.Cr.R. 18, 191 S.W 2d 879, a complaint charging the operation of an automobile and failure to display operator's license on demand of a peace officer was held insufficient to charge an offense in the absence of an allegation that accused was, on the date of the alleged offense, a licensee.

"There should be no arbitrary deprivation of life or LIBERTY..." (emph. added)

BARBOUR v. CONNOLLY, 113 US 27, 31;

YICK WO v. HOPKINS SHERIFF, 118 US 356.

"In BARBOUR v. WALKER, 126 Okl. 227, 259 P. 552, 56 ALR 1049, 1053, THE DISTINCTION BETWEEN THE RIGHT OF THE CITIZEN TO USE THE PUBLIC HIGHWAYS for private rather than commercial purposes IS RECOGNIZED..."  (emph. added)  Washington AGO 59-60, No.: 88, P. 10.

"When the public highways are made the PLACE OF BUSINESS the state has a right to regulate their use in the interest of safety and convenience of the public as well as the preservation of the highways."  "Heretofore the court has held, and the affiant would think correctly, that while a citizen has the RIGHT to travel upon the public highways and to transport his property thereon, that right does not extend to the use of the highways, either in whole or in part, AS A PLACE OF BUSINESS FOR PRIVATE GAIN." (emph. added)

BARNEY v. BD OF RR COMM'RS, 17 P. 2d 82;

WILLIS v. BUCK , 81 MONT. 472, 263 P. 982.

"Then a constitution should receive a literal interpretation in favor of the Citizen, is especially true, with respect to those provisions which were designed to safeguard the liberty and security of the Citizen in regard to person and property." Bary v. United States - 273 US 128

"It is the duty of the courts to be watchful for the Constitutional Rights of the affiant, and AGAINST ANY STEALTHY ENCROACHMENT THEREON."  (emph. mine)  BOYD v. US, 116 US 616 (1886).

"Constitutional provisions, where the security of a person and property are to be liberally construed, and it is the duty of the courts to be watchful for the constitutional rights of the affiant and against any stealth encroachment therein." Bryars v. United States  273 USR 28:

"Proof of the driving of an automobile while the driver's license was suspended does not sustain the allegations of the information. This proof is insufficient to sustain the allegations of the offense charged in the information because a driver's license is not an operator's license.  There is in Texas no such license as a 'driver's license'.  The evidence being insufficient to support the conviction, the judgment is reversed and the cause remanded."

Campbell v. State of Texas, 274 S.W. 2d 401, 402.

"The use of the highway for the purpose of travel and transportation IS NOT A MERE PRIVILEGE, but a COMMON AND FUNDAMENTAL RIGHT of which the public and INDIVIDUALS CANNOT RIGHTFULLY BE DEPRIVED." (emph. added)

CHICAGO MOTOR COACH v. CHICAGO, 337 111, 200. 169 NE 22, 66 ALR 834;

LIGARE v. CHICAGO, 139 111, 46 28 NE 934;

Boon v. Clark, 214 SW 607;

25 AM. JUR. (1st) HIGHWAYS, Sec. 163

The statutory provision is mandatory when it is the essence of the thing to be done, and it is directory when it is included only for the purpose of promoting the proper, orderly, and prompt conduct of business. The City of Dallas, Texas, Relator, v. The Honorable Ken Vaughan, Judge, County Criminal Court of Appeals, Number One, Respondent, 750 S.W.2d 345; 1988 Tex. App.

The term 'motor vehicle' is different and broader than the word 'automobile.'" (emph. added)

City of Dayton v. DeBrosse, 23 NE.2d 647, 650; 62 Ohio App. 232

The term Drivers License is not a specific single License to be required by law.  The license means to confer on a person the right to do something which otherwise he would not have the right to do. (See) City of Louisville v. Sebree, 214 SW 2d. 248; 308 Ky. 420.

"As the affiant has said on more than one occasion, it may be difficult, if not impossible, to give to the terms "due process of law" a definition which will embrace every permissible exertion of power affecting private rights and exclude such as are forbidden...   In this country, the requirement is intended to have a similar effect against legislative power, that is, to secure the affiant AGAINST ANY ARBITRARY DEPRIVATION OF HIS RIGHTS, whether relating to his LIFE, LIBERTY, or his PROPERTY.... the great purpose of this requirement is to exclude everything that is arbitrary and capricious as would be ambiguous in nature, IN LEGISLATION, affecting the rights of citizens." (emph.mine)

DENT v. STATE OF WEST VIRGINIA, 129 US 114, 123-124,32 L.Ed 623, 9 S.Ct 231 (1888).

"All [person's] born or naturalized in the United States.  Being subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.  NO STATE SHALL MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF THE CITIZENS OF THE UNITED STATES..." (emph,added) EDWARDS v. CALIFORNIA, 314, US 160, 182 (1941).

"The Right of the citizen to travel upon the highway and to transport his property thereon, in the ordinary course of life and business, DIFFERS RADICALLY AND OBVIOUSLY  from one who makes the highway his place of business and uses it for private gain... The FORMER IS THE USUAL AND ORDINARY RIGHT OF THE CITIZEN, A RIGHT COMMON TO ALL, while the latter is special, unusual, and extraordinary." (emp.added)

EX PARTE DICKEY (DICKEY v. DAVIS), 76 W.Va 576, 85 SE 781 (cited by Washington decisions) (See also TECHE LINES v. DANFORTH, supra, and THOMPSON v. SMITH, supra).

The rights to freedom of speech, freedom of the press, freedom of assembly, and freedom of religious worship are not privileges. (See) Douglas v. City of Jeannette, 130 F. 2d. 652, 655.

The Right of affiant to use the highways, including the streets of the city or town, for travel and to transport his goods, is an inherent right which cannot be taken from the native, (See) Florida Motor Lines v. Ward, 137 So. 163, 167; State v. Quigg, 114 So. 859, 862; Davis v. City of Houston, 264 SW 625, 629 (Tex. Civ. App.).

"It is not contended by any one that the city would have the right to prevent the appellant from riding in his automobile on any street in the city... for the streets were builded (sic) for that purpose."

GREEN v. SAN ANTONIO, 178 SW 6

"... There is a opinion that there is a CLEAR DISTINCTION... between an [individual] and a corporation..."  The Constitution is the distinction stating the corporation is treated like an unnatural person, and has no constitutional rights guaranteed under this document for the people.

THE INDIVIDUAL MAY STAND UPON HIS CONSTITUTIONAL RIGHTS AS THE AFFIANT. He is entitled to carry on his private business in his own way.  His power to contract is unlimited.  HE OWES NO DUTY TO THE STATE or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may incriminate him.  HE OWES NO SUCH DUTY TO THE STATE, SINCE S/HE RECEIVES NOTHING THEREFROM, beyond the protection of his life and property. HIS RIGHTS ARE UNALIENABLE UNDER THE CONSTITUTION AS EXISTED BY THE LAW AND CAN ONLY BE TAKEN AWAY FROM HIM BY DUE PROCESS OF LAW, AND IN ACCORDANCE WITH THE CONSTITUTION... HE OWES NOTHING TO THE PUBLIC SO LONG AS HE DOES NOT TRESPASS UPON THEIR RIGHTS." (Emph. Added)

HALE v. HENKEL, 201 US 43, 74 (1906).

"We hold that state officials, sued in their individual capacities, are “persons” within the meaning of 1983. The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under 1983 solely by virtue of the “official” nature of their acts."

HAFER v. MELO, 502 U.S. 21 (1991)

"Information alleging that defendant operated a motor vehicle upon public highway without a 'driver's license' charged no offense under Drivers' License Act, since a driver's license is not known to the law because the act only authorizes issuance of operators', commercial operators', and chauffeurs' license and use of term 'driver' interchangeably with term 'operator' would not be authorized in view of definition in the act of term driver as meaning every person who drives or is in actual physical possession of a vehicle. There being no such license known to the law, it follows that the information, in charging the driving of a motor vehicle upon a public highway without such a license, charges no offence. Because of the defect in the information, the judgment is reversed and prosecution ordered dismissed." Hassell v. State of Texas, 194 S.W. 2d 400, 401.

"That statutes which would deprive a citizen of the rights of a person or property, WITHOUT A REGULAR TRIAL, according to the course and usage of the common law, would not be the law of the land." (emph. added)

HOKE v. HENDERSON, 15 N.C. 15.

"The information was insufficient to charge an offense for operating a motor vehicle while the appellant's driver's license was suspended, in that it does not allege that appellant has been issued a driver's license or that he drove a motor vehicle while such license was suspended.

Holloway v. State of Texas, 237 S.W. 2d 303, 304

"The state CANNOT diminish RIGHTS of the PEOPLE."

(emph. added) HURTADO v. CALIFORNIA, 110 US 516.

"A motor vehicle or automobile for hire is a motor vehicle, other than an automobile stage, used for the transportation of persons for which remuneration is received."

International Motor Transit Co. v. Seattle, 251 P. 120

Keith Brooks v. State, 158 Tex. App. 546; 258 SW 2d. 317: (1953); Tex. Crim. App. LEXIS 1688. "An information charging the driving of a motor vehicle upon a public highway without a driver's license charges no offense, as there is no such license as a driver's license known to the law."

"The Right to "travel" is part of the "liberty" of which a citizen cannot be deprived without due process of law under the Fifth Amendment, This Right was emerging as early as the Magna Charta." (emph. added)

KENT v DULLES, 357 US 116, 125.

It is unconstitutionally vague for a state to require a person to produce "credible and reliable" identification when requested to do so by a police officer.  Where the Court invalidated, on vagueness grounds, a state law requiring persons on the street to present "credible and reliable" identification when asked by a police officer.  The Court said this law, in its vagueness, gave too much discretion to the police for arbitrary and selective enforcement.

Kolender v. Lawson, 461 US 352 (1983)

"No person shall be held to answer for a capital or otherwise infamous crime unless or a presentation or indictment of a grand jury." (See) Mackin v. United States, 117 US 348; 6 S. Ct. 777; 29 L. Ed. 909; and Brede v. Powers, 263 US 4; 44 S. Ct. 8; 68 L. Ed. 132.

"No provision of the Constitution is designed to be without effect," "Anything that is in conflict is null and void of law", "Clearly, for a secondary law to come in conflict with the supreme Law was illogical, for certainly, the supreme Law would prevail over all other laws and certainly our forefathers had intended that the supreme Law would be the bases of all law and for any law to come in conflict would be null and void of law, it would bare no power to enforce, in would bare no obligation to obey, it would purport to settle as if it had never existed, for unconstitutionality would date from the enactment of such a law, not from the date so branded in an open court of law, no courts are bound to uphold it, and no Citizens are bound to obey it.  It operates as a near nullity or a fiction of law." Marbury v. Madison : 5 US 137 (1803):

"As a rule, fundamental limitations of regulations under the police power are found in the spirit of the constitutions, not in the letter, although they are just as efficient as if expressed in the clearest language." 

MEHLOS v. MILWAUKEE, 156 WIS 591, 146 NW 882, 51 LRA 9N.S.0 1009.

"The claim and exercise of a constitutional right CANNOT BE CONVERTED INTO A CRIME."

(emph. added)  MILLER v. US, 230 F. 486, 489.

The Constitution is the supreme law of the State and therefore its "provisions prevail over any legislative action." (See) Miners & Merch. Bank v. Board of Supervisers, 101 P. 2d. 461, 462.

"Where rights secured by the constitution are involved, there can be no rule or law making or legislation which would abrogate or abolish them."

MIRANDA v. ARIZONA, 384 US 436.

"The automobile is not inherently dangerous."

MOORE v. RODDIE, 106 Wn. 518;

COHEN v. MEADOR, 89 SE 867;

BLAIR v. BROADMORE, 93 SE 632. 

Inalienable, means incapable of being surrendered or transferred, at least without one's consent. (See) Morrison v. State, 252 SW 2d. 97, 101 (Mo. App.)

"A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution and that a flat license tax here involves restraints in advance the constitutional liberties of Press and Religion and inevitably tends to suppress their existence.  That the ordinance is non-discriminatory and that is applies also to peddlers of wares and merchandise is immaterial. The liberties granted by the first amendment are and in a preferred position.  Since the privilege in question is guaranteed by the Federal Constitution and exist independently of the states authority, the inquiry as to whether the state has given something for which it cannot ask a return, is an irrelevant exchange for cause and nature of such a claim. No state may convert any secured liberty into a privilege and issue a license and a fee for it." Mudook  v. Penn., 319 US 105:(1943)

"An unconstitutional act is not law.  It confers no rights, it imposes no duties, it affords no protections, it creates no office.  It is in legal contemplation as inoperative as though it has never does not exist, can have no validity whatever in law." Norton v. Shelby County,  118 USR 425:

"The right of action created by statute relating to deprivation under color of law, of a right secured by the constitution and the laws of the United States and comes claims which are based solely on statutory violations of Federal Law and applied to the claim that claimants had been deprived of their rights, in some capacity, to which they were entitled."  "Officers of the court have no immunity when violating constitutional right, from liability"  (emph. added)

Owen v. Independence 100 Vol. Supreme Court Reports. 1398:(1982)

Main v. Thiboutot 100 Vol. Supreme Court Reports. 2502:(1982)

"Moreover, a "distinction MUST BE OBSERVED between the REGULATION of an activity which may be engaged in as a MATTER OF RIGHT and one carried on by government sufferance or permission." (emph. added)

PACKARD v. BANTON, 264 US 140, 145.

"The police power of the state must be exercised IN SUBORDINATION to the provisions of the U.S. Constitution."

PANHANDLE EASTERN PIPELINE CO. v. STATE HIGHWAY COMMISSION, 294 US 613, 79 L.Ed 1090, 55 S.Ct. 563;

BUCHANAN v. WARLEY, 245 US 60, 62 L.Ed 149, 38 S.Ct.16.

The object of a license is to confer a power which does not exist without it. (See) Payne v. Massey, 196 SW 2d. 493; 145 Tex, 273.

"A license... is no more than a temporary permit to do that which would otherwise BE UNLAWFUL..." (emph. mine) RAWSON v. DEPT OF LICENSES, 15 Wn.2d 364, 371 (1942).

"The only limitations found restricting the right of the state to condition the use of the public highways as a means of vehicular transportation FOR COMPENSATION are (1) that the state MUST NOT exact of those it permits to use the highways for hauling FOR GAIN that they shall SURRENDER ANY OF THEIR INHERENT U.S. CONSTITUTIONAL RIGHTS as a condition precedent to obtaining permission for such use..." (emph.added).

RILEY v. LAWSON, 143 SO. 619;

STEPHENSON v. BINFORD, 287 US 251, 87 ALR 721, 736.

"Complete freedom of the highways is so old and WELL ESTABLISHED a blessing that the affiant has forgotten the days of the robber barons and toll roads, and yet, under an act such as this, arbitrarily administered, the highways may become completely monopolized.  If, through LACK OF INTEREST, the people submit, THEY MAY LOOK TO SEE THE MOST SACRED OF LIBERTIES TAKEN FROM THEM, ONE BY ONE, BY MORE OR LESS RAPID ENCROACHMENT".

(Emph. Mine) ROBERTSON v. DEPARTMENT OF PUBLIC WORKS, 180 Wn 133, 147 (1934) Dissenting Op.

"There can be no sanction or penalty imposed upon one because of this exercise of constitutional Rights." 

(emph. added) Sherar v. Cullen, 481 F. 946

The essential elements of  "due process of law" are: 

1)   NOTICE, and... 

2)   the opportunity to defend

SIMON v. CRAFT, 182 US 427.

"The citizen will find it intolerable that one constitutional right should have to be surrendered in order to assert another."

SIMMONS v. US, 390 US 389 (1968).

"Life liberty, property, and the equal protection of the law, grouped together within the Constitution law status, are so related that the deprivation of any one of those separate and independent rights may extinguish or lesson the value of the other three.  In so far as a man is deprived of the Right to labor, his liberty is restricted, his capacity to earn wages and acquire property is lessened, and he is denied the protection which the law affords those who are permitted to work.  Liberty means more than just freedom from servitude, and the Constitutional guarantee is an assurance that the citizen shall be protected in the right to use his powers of mind and body in any lawful calling."

SMITH v. TEXAS, 233 US 630, 636, 58 L. Ed 1129 (1913).

Stanek v. White , 215 North Western Reporter, pg. 784 (Oct. 14, 1927)

States: "There is a distinction between a debt discharged and one paid. When discharged, the debt still exists....."

"First, IT IS WELL ESTABLISHED LAW that the highways of the state are public PROPERTY, that their primary and preferred use is FOR PRIVATE PURPOSES, and that their use for  PURPOSES OF GAIN is special and extraordinary which, generally at least, the legislative edits of the legislature can prohibit or condition as it sees fit." (emph. added)

STEPHENSON v. BINFORD, 287 US 251, 77 L. Ed 288, 53 S. CT. 181, 87 ALR 721, 727;

PACKARD v. BANTON, 264 US 140, 144, 68 L. Ed 596, 607, 44 S. Ct. 257  and cases cited;

FROST 7 F. TRUCKING CO. v. R.R. COMM., 271 US 583, 592, 70 L.Ed 1101, 1104, 47 ALR 457, 46 S. Ct. 605.

"If the state does convert your right into a privilege and issue a license and a fee for it, you can ignore the license and a fee and engage the right with impunity." (emph. added)

Shuttlesworth v. Birmingham Al., 373 US 262:(1962)

"All sorts of restrictions and burdens are imposed under it (police power), and when these are NOT IN CONFLICT with any CONSTITUTIONAL PROHIBITIONS, OR FUNDAMENTAL PRINCIPLES, they cannot be successfully assailed in a judicial tribunal. ... but under the pretense of prescribing a police regulation, the State cannot be permitted to ENCROACH UPON ANY OF THE JUST RIGHTS OF THE AFFIANT which the Constitution intended to secure against abridgement." (emph. added).

SLAUGHTER HOUSE CASES, 16 WALL 36, 87.

"The RIGHT of the citizen to TRAVEL upon the highway and to transport his property thereon, in the ordinary course of life and business, DIFFERS OBVIOUSLY AND RADICALLY from that of one who makes the highway his place of business and uses it for private gain..." (emph. added)

STATE v. CITY OF SPOKANE, l09 Wn 360, 186 P. 864.

"... for while a citizen has the RIGHT to TRAVEL upon the public highways and to transport his property thereon, the Right does not extend, in whole or in part, AS A PLACE OF BUSINESS FOR PRIVATE GAIN. For the latter purpose, no person has a vested right to use the highways of the state, BUT AS A MERE PRIVILEGE OR LICENSE which the Legislature may grant or withhold at its discretion..." (emph. added)

STATE v. JOHNSON, 75 Mont. 240, 243 P 1073;

HADFIELD v. LUNDIN, supra;

CUMMINS v. JONES, 79 Ore 276, 155 P 171;

PACKARD v. BANTON 44 S. Ct 257, 264 US 140, 68 L. ED 598

"The right to earn a living by working for remuneration is not a "substantive privilege granted by the state."  It is, as described by the Supreme Court of Wyoming:"...one of those inalienable rights covered by the statements in the Declaration of Independence and secured to all those living under our form of government, by the liberty, property, and happiness clauses of the national and state constitutions."

STATE v. SHERIDAN, 25 WYO. 347, 357, 170 p.1, 1 ALR 955."

CARY v. BELLINGHAM, 41 Wn.2d 468, 472, 250 P.2d 114 (1952).

"The use of the highways of the state FOR PURPOSES OF GAIN is special and extraordinary, and may generally be prohibited or conditioned by the legislature as it sees fit." (emph. added)

STEPHENSON v. BINFORD, SUPRA;

R.R. COMMISSION v. INTER-CITY FORWARDING Co., 57 SW. 2d 290;

PARLETT COOPERATIVE v. TIDEWATER LINES, 165 A. 313.

"(The roads)... are constructed and maintained at public expense, and no person, therefore, can  insist that he has, or may acquire, a vested right to their use in CARRYING ON A COMMERCIAL BUSINESS." (emph. added.)

EX PARTE STERLING, 53 SW 2d 294;

BARNEY v. R.R. COMM'RS, 17 P. 2d 82;

STEPHENSON v. BINFORD, supra.

"The RIGHT of the affiant to TRAVEL upon the public highways and to transport his property thereon, in the ordinary course of life and business IS A COMMON RIGHT which he has under the Right to enjoy life, liberty, to acquire and possess property, and to pursue happiness and safety.  IT INCLUDES THE RIGHT, in so doing, TO USE THE ORDINARY AND USUAL CONVEYANCES OF THE DAY and under the existing modes of travel, INCLUDES THE RIGHT...TO OPERATE AN AUTOMOBILE THEREON, for the usual and ordinary purposes of life and business." (emph. added)

TECHE LINES v. DANFORTH, 12 So. 2d 784;

THOMPSON v. SMITH, supra.

"The RIGHT of the affiant TO TRAVEL UPON THE PUBLIC HIGHWAYS and to transport his property thereon, either by horse-drawn carriage OR BY AUTOMOBILE, IS NOT A MERE PRIVILEGE which the city may prohibit or permit at will, BUT IS A COMMON RIGHT which he has under the Right to life, liberty, and the pursuit of happiness" guaranteed by the Constitution. (emph. added)

THOMPSON v. SMITH, 155 Va 367, 154 SE 579, 71 ALR 604.

"It is well and amply settled that the Constitutional rights protected by invasion by the police power, include rights safeguarded both by express and implied prohibitions in the constitutions." 

TIGHE v. OSBORN, 131 A. 801, 43 ALR 819.     

"In Bivens, 403 U.S. at 389, 91 S.Ct. at 2001, the Supreme Court held that when "a federal agent acting under color of his authority" violates the Constitution, the agent's victim may recover damages against the agent. Such claims are the counterpart to suits under 42 U.S.C. § 1983 against state officials who infringe plaintiffs' federal constitutional or statutory rights. See Butz v. Economou, 438 U.S. 478, 503-04, 98 S.Ct. 2894, 2909-10, 57 L.Ed.2d 895 (1978); McSurely v. Hutchison, 823 F.2d 1002, 1005 (6th Cir.1987), cert. denied, 485 U.S. 934, 108 S.Ct. 1107, 99 L.Ed.2d 269 (1988)."

"... in Wyatt v. Cole, 504 U.S. 158, 159, 112 S.Ct. 1827, 1828-29, 118 L.Ed.2d 504 (1992), the Supreme Court held that a party who is not a public official may be liable under 42 U.S.C. § 1983 and yet not be entitled to qualified immunity because, if not a public official, the reason for affording qualified immunity does not exist. Applying this reasoning to the instant case, we hold that a party not a public official may be liable under Bivens, but not entitled to qualified immunity because the reason for affording qualified immunity to a public official does not apply to a government actor who is not a public official."

Vector Research v. Howard, 76 F. 3d 692 - C of Apps, 6th Circuit 1996

"Under its power to REGULATE private uses of our highways, our legislature has required that motor vehicle operators to be licensed... Undoubtedly, the primary purpose of this requirement is to insure, as far as possible, THAT ALL MOTOR VEHICLE OPERATORS WILL BE COMPETENT AND QUALIFIED, thereby reducing the potential hazard or risk of harm, to which other users of the highway MIGHT otherwise be subject.  But once having complied with this regulatory provision, by obtaining the requisite license, a motorist enjoys the PRIVILEGE of traveling freely upon the highways..."

Washington AGO 59-60, No: 88, p.11.

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

U.S. CONSTITUTION

[Some very old spellings—of the time—are in place, below.]

Article 1, Section. 1.  All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article 1, Section. 8. The Congress shall have Power to lay and collect Taxes, Duties, imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Impost and Excises shall be uniform throughout the united States. [ßsome books print this as ‘United’ but the founders intended it not capitalized.]

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof. and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court [ß similarly, ‘supreme’ should not be capitalized!];

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (riot exceeding ten Miles square) as may, by Cession of particular States. and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock Yards and other needful Buildings;- -And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Article 1, Section. 9. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Article 1, Section. 10. No state shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin  Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Article 3, Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; -- to all Cases affecting Ambassadors, other public Ministers and Consuls; -- to all Cases of admiralty and maritime Jurisdiction;- - to Controversies to which the United States shall be a Party, --- to Controversies between two or more States; between a States and Citizens of another state; between Citizens of different States -- between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

            In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

            The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Article 4, Section. 2. The Citizens of each State shall be entitled to all Privileges and immunities of Citizens in the several States.

Article 6, Clause 2. This Constitution, and the Laws of the United States which shall be made In Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Bill of Rights, Article 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Bill of Rights, Article 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Bill of Rights, Article 4: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."

Bill of Rights, Article 5: "No person shall be held to answer for a capital, or otherwise infamous, crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service, in time of War, or public danger; nor shall any person be subject, for the same offense, to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Bill of Rights, Article 6: "In all criminal prosecutions, the affiant shall enjoy the right to a speedy and public trial, by an impartial jury of their peers and district wherein the offense as a misdemeanor or criminal in nature shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of Counsel for his defense."

Bill of Rights, Article 7: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a Jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

Bill of Rights, Article 8: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Bill of Rights, Article 9: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Bill of Rights, Article 10: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

[In 1913, the 17^th Amendment to the U.S. Constitution made federal Senators directly elected by the people instead of appointed by the states, changing the Republic from complex to simple.  Originally, only House Representatives (& the President & VP) were intended to be elected by the people.  This moved us much more towards strong federal control, as it greatly reduced State power.  It took away a significant check & balance.  This was the same time & people who put in the Income Tax Act and the Federal Reserve Act and the 16^th Amendment.  It was no accident.]

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