TRIAL COURT CAUSE NO. 2013-06565
IN THE INTEREST OF: BELLA JENKINS AND JACK W. JENKINS,
MINOR CHILDREN
) IN THE DISTRICT COURT ) ) ) HARRIS COUNTY, TEXAS ) ) ) ) 246TH JUDICIAL DISTRICT
PETITIONER'S MOTION TO RECUSE AND DISQUALIFY THE HONORABLE ANGELA GRAVES-HARRINGTON, AND BRIEF IN SUPPORT THEREOF TO THE HONORABLE DISTRICT JUDGE OF SAID COURT: COMES NOW, PETITIONER, GINGER WEATHERSPOON, and files this Motion to Recuse the Honorable Angela Graves-Harrington and Brief in Support thereof and would show this Court unto the following:
I.
Summary of Argument
At the outset of this Motion, Attorney Ginger Weatherspoon ("Petitioner") does not question the good faith or honorable intentions of Judge Angela Graves-Harrington (“Respondent”). However, at this time, a recusal is ethically required to protect Bella Jenkins and Jack W. Jenkins. The Respondent stated in open court that the Respondent had received an ex parte communication from the Petitioner which stated the following: Before we proceed, I just want to advise the counsels that I've received ex parte communication from one of the attorneys in the case and will provide the content of that communication to all counsel at this time. So that everyone is aware, I received a message from Attorney Ginger Weatherspoon at 10:05 p.m. on Wednesday, I believe, it was; and the contents of that communication is such that, "I find it strange that your associate judge said you would uphold the psychological and she was there to watch. Then you went against your plenary power to rule on something you had no power to rule. You know your plenary power because you brought it up to me. Did you want the wrath of the LGBTQ community?" "Psychology to evaluate the child to diagnose him as gender dysphoric." "The LGBTQ is watching. Your AJ is an idiot. If I see another kid or you distracting a hearing, I am calling the media. Learn the Family Code and take your job seriously. This is a joke." So that everyone is clear that this communication was received and will be properly addressed, but I did want to let all counsel know that the Court did receive that ex parte communication.
Respondent has made false statements against Petitioner. Attorney Weatherspoon was told that documents, mailings, or communications were sent to the Judge by Attorney Weatherspoon, but this is not true. Petitioner denies making and sending communications to the Respondent. Accordingly, Petitioner respectfully requests a temporary stay of this case, an evidentiary hearing, and an order assigning this matter to another Court. II.
Exhibits
Exhibit "A" – Order-Entry Hearing Transcript dated April 30, 2021
III.
Standard of Review
A judge's refusal to recuse is viewed on appeal by an abuse of discretion standard. See TEX. R. C1v. P. 18a(f); Gulf Maritime Warehouse Co. v. Towers, 858 S.W.2d 556, 558 (Tex. App. -- Beaumont 1993, pet. denied). Rule I 8b (2) provides, in relevant part, that: "A judge shall recuse himself in any proceeding in which: (a) his impartiality might reasonably be questioned; (b) he has a personal bias or prejudice concerning the subject matter or a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." TEX. R. C1v. P. 18b(2)(a) & (b). A judge's bias must be extrajudicial and not based on in-court rulings to sustain a motion for recusal. Grider v. Boston Co.. Inc., 773 S.W.2d 338, 346 (Tex. App. -- Dallas 1989, pet. denied), disapproved on unrelated grounds, 96 S.W.3d 240 (Tex. 2002). The motion to recuse must allege personal bias from an extrajudicial source. Id. Unfair trial rulings are properly contested on appeal and not by recusal. Id.
IV.
Brief Factual Predicate
Petitioner respectfully requests that this Court voluntarily recuse herself from all cases where Petitioner is a party. Just recently, this Court heard a Motion for Psychological Evaluation of the Child in Question and an Emergency Motion for the Child to be returned to school. The child in question’s name is Bella Jenkins and the school that Bella Jenkins attends is Concordia Lutheran High School. A Motion to Sign was held where the Respondent made the Statement that has led to this recusal. Attorney Weatherspoon was told that documents, Page 2 of 6
mailings, or communications were sent to the Judge by Petitioner, but this is not true. Petitioner denies making and sending ex parte communications to the Judge. These are facts that are outside the realm of this specific case, which require a recusal to protect the interests of Bella Jenkins, Jack W. Jenkins, and the Petitioner. Petitioner requests an evidentiary hearing. Respectfully, the Motion should be granted, and a different Court should be assigned to hear this case. These matters are more fully briefed and articulated herein below.
V.
Argument & Authorities
Petitioner does not question the good faith or honorable intentions of Respondent. However, at this time, a recusal is ethically required to protect the interests of Bella Jenkins, Jack W. Jenkins, and the Petitioner. Judge Graves-Harrington is the Judge who received an ex parte communication allegedly from Ginger Weatherspoon, but Ms. Weatherspoon denies the claims that this communication was sent from herself. Accordingly, Petitioner respectfully requests a temporary stay of this case, an evidentiary hearing, and an order assigning this matter to another Court.
Texas law provides that a judge shall recuse himself in any proceeding in which: (a) his impartiality might reasonably be questioned, or (b) he has a personal bias or prejudice concerning the subject matter or a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. TEX. R. C1v. P. 18b(2)(a), (b). Public policy demands that a judge who tries a case act with absolute impartiality. CAN Ins. Co. v. Schejfey, 828 S.W.2d 785, 792 (Tex. App. -- Texarkana 1992, pet. denied). A judge should be fair and impartial and not act as an advocate for any party nor should she be any party's adversary. Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App. -- Houston [!" Dist.] 1994, pet. denied) (addressing the question of whether trial judge's conduct or comments deprived party of fair trial). Judicial decisions rendered under circumstances that suggest bias, prejudice or favoritism undermine the integrity of the courts, breed skepticism and mistrust, and thwart the principles on which the judicial system is based. CAN Ins., 828 S.W.2d at 792. A judge must also perform her judicial duties without bias or prejudice. TEXAS CODE OF JUDICIAL CONDUCT, Canon 3A(9) (1989) Page 3 of 6
(amended 1992, 1994). All judges have the duty to sit and decide matters brought before them unless there is a basis for disqualification or recusal. Rogers v. Bradley, 909 S.W.2d 872, 879 (Tex. 1995); Sun Oil Co. v. Whitaker, 483 S.W.2d 808, 823-824 (Tex. 1972); TEXAS CODE OF JUDICIA L CONDUCT, Canon 3, pt. 3(8)(1) (1974), reprinted in TEX. Gov'T CODE, tit. 2, subtit. G.App. A judge shall recuse herself when her impartiality might reasonably be questioned. TEX. R. Clv. P. 18b(2)(a). In a somewhat recent decision discussing the appropriate test regarding when impartiality can reasonably be questioned, Justice Enoch centered on how various state and federal courts reference, as a critical factor, the conduct of the judge, not the conduct of some third party, as the subject of examination. Rogers, 909 S.W.2d at 880-881. Recognizing that Texas courts have not articulated a clear standard for recusal, Justice Enoch noted that Texas decisions implicitly assume that it is the conduct of the judge that is in question and not the conduct of a third party. Id. at 881. He poses the question as whether a reasonable member of the public at large, knowing all the facts in the public domain concerning the judge's conduct, would have a reasonable doubt that the judge is actually impartial. Id. Accordingly, "[b)ecause this test requires courts to evaluate a motion to recuse from a disinterested observer's point of view, it seems best suited to achieve the primary purpose of Rule 18(b)(2)(a) avoiding the appearance of judicial bias. A standard that assumes the perspective of the judge, an attorney or a litigant involved in the case would not do much to satisfy the purpose of the rule." Id. at 882. In the case at bar, this Court disclosed to the parties that she believes that Weatherspoon sent documents to the Judge that were highly critical and demeaning, but this is not true. Since the Judge has made a statement that was false, inaccurate, or incomplete a recusal is required. An evidentiary hearing is requested. Accordingly, the Motion should be granted.
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VI. Conclusion In conclusion, this Court should respectfully recuse herself from these proceedings. In light of the recent developments in this case, this Court should have another judge assigned to the matter and all other cases where is a party. WHEREFORE, PREMISES CONSIDERED, Petitioner, respectfully requests that this Honorable Court voluntarily recuse herself from this case; if a voluntary recusal does not occur, Petitioner requests an evidentiary hearing and an opportunity to put on some evidence such that this Motion be granted; and that the Court further grant the Respondent all further relief whether in law or in equity upon which he may show himself justly entitled.
PRAYER Petitioner Ginger Ann Weatherspoon respectfully requests that this Court grant this Motion to Recuse and Disqualify the Honorable Angela Graves-Harrington. Petitioner further pray for such other and additional relief, at law or in equity, to which Petitioner may be justly entitled.
Respectfully submitted, Bob Bennett & Associates, LLC
By: _/s/ Robert S. Bennett Robert S. “Bob” Bennett SBOT: 02150500 405 Main Street, Ste. 816 Houston, Texas 77002 (713) 225-6000 (713) 225-6001 (FAX) Email: bob@bennettlawfirm.com ATTORNEY FOR PETITIONER, GINGER WEATHERSPOON
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CERTIFICATE OF SERVICE Pursuant to Rule 2la of the Texas Rules of Civil Procedure, the undersigned attorney hereby certifies that a true and correct copy of the foregoing instrument was served upon all attorney of record by way of email, first class United States mail, and/or e-service on this the 14th day of May, 2021.
Mr. Jedediah D. Moffett SBOT NO. 24051069 Moffett Law Firm, P.C. 440 Louisiana Street, Suite 2450 Houston, Texas 77002 Telephone: (713) 333-5800 Fax: (713) 333-5801 E-mail: service@moffettlawfirm.com Counsel for Petitioner, Melanie Belin Wills
Ms. Kelly L. Fritsch, P.C. SBOT NO. 24067609 Law Firm of Kelly Fritsch, P.C. 238 Westcott Street Houston, Texas 77007-7004 Telephone: (713) 869-2900 Fax: (713) 333-5801 E-mail: service@fritschfamilylaw.com Counsel for Amicus Attorney
/s/ Robert S. Bennett Robert S. “Bob” Bennett ATTORNEY FOR PETITIONER
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