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No.___________ IN THE SUPREME COURT OF TEXAS AT AUSTIN, TEXAS _____________________________________ PATRICIA A. POTTS Petitioner, V. CHRIS DANIEL, HARRIS COUNTY DISTRICT CLERK, AL BENNETT, 61st JUDICIAL DISTRICT JUDGE, and IN HIS OFFICIAL CAPACITY AS CIVIL ADMINISTRATIVE DISTRICT JUDGE OF HARRIS COUNTY, TEXAS, AND JOSEPH J. HALBACH, JR., IN HIS OFFICIAL CAPACITY AS CHIEF ADMINISTRATIVE DISTRICT JUDGE OF HARRIS COUNTY, TEXAS Respondents ____________________________________________________ PETITION FOR REVIEW ____________________________________________________ From the Fourteenth Court of Appeals at Houston, Texas DOCKET NO.14-11-00947-CV Cause No. 2011-51275 In the 61st Judicial District Court Of Harris County, Texas ____________________________________________________ Patricia A. Potts, pro se P.O. Box 3453 Crosby, Texas 77532 (281) 386-2187 1


IDENTITY OF PARTIES AND COUNSEL APPELLANT/PETITIONER: Patricia A. Potts ATTORNEY FOR APPELLANT/PETITIONER: Patricia A. Potts, pro se P.O. Box 3453 Crosby, Texas 77532 (281) 386-2187 RESPONDENTS: Hon. Chris Daniel, District Clerk, Harris County District Courts, Respondent (Petitioner is not aware of counsel for District Clerk Daniels) Hon. Al Bennett, 61st Judicial District Judge, Civil Administrative District Judge, Harris County District Courts, Respondent (Petitioner is not aware of counsel for Judge Bennett) Hon. Joseph J. Halbach, Jr., Chief Administrative District Judge, Administrative Office of the District Courts, Respondent (Petitioner is not aware of counsel for Judge Halbach, Jr.) REAL PARTIES IN INTEREST: Susan Fillion, Public Information Officer for Harris County Attorney’s Office, Real Party in Interest (Petitioner is not aware of counsel for Attorney Susan Fillion) Patricia Lykos, Harris County District Attorney, Real Party in Interest (Petitioner is not aware of counsel for District Attorney Lykos) Greg Abbott, Attorney General of Texas, Real Party in Interest (Petitioner is not aware of counsel for Attorney General Abbott”

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TABLE OF CONTENTS

Identity of Parties and Counsel..........................................................................2 Table of Contents...............................................................................................3 Index of Authorities............................................................................................5 Statement of the Case........................................................................................7 Statement of Jurisdiction..................................................................................15 Issues Presented...............................................................................................17 I.

Whether petitioner’s lawsuit (Cause No. #2011-51275) was a MISTAKEN FILING pursuant to Section 11.103 of Civil Practice & Remedies Code.

II.

Whether district clerk’s “voiding” of case file records and refusal to forward “notice of appeal” deprived petitioner of fundamental constitutional rights and a meaningful appeal.

Statement of Facts............................................................................................17 Summary of the Argument...............................................................................19 Argument and Authorities................................................................................20 I.

Petitioner’s lawsuit (Cause No. #2011-51275) was a MISTAKEN FILING pursuant to Section 11.103 of Civil Practice & Remedies Code..............................................................................................20

II.

District Clerk’s “voiding” of case file records and refusal to forward “notice of appeal” deprived petitioner of fundamental constitutional rights and a meaningful appeal...............................20

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Reason for Assumption of Jurisdiction..............................................................23 Prayer...............................................................................................................24 Certificate of Service.........................................................................................25 Appendix..........................................................................................................25

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INDEX OF AUTHORITIES CASES In re Clifford A. Smith, 270 SW 3d 783 (Tex.App.-Houston [10th Dist.] 2008) In re Rick D. Smith, 263 S.W.3d 93, 95 (Tex.App.- Houston [1st Dist.] 2006) In re Washington, 7 S.W.3d 181, 182 (Tex.App.- Houston [1st Dist.] 1999, orig. proceeding)

CONSTITUTIONAL PROVISIONS U.S. Constitution, Amendment 1 U.S. Constitution, Amendment 5 U.S. Constitution, Amendment 14 Texas Constitution, art. 1, section 3,3(a),19,27 Texas Constitution, art. 5, section 6

UNITED STATES CODES U. S. Code 18 USC 242 U. S. Code 42 USC 1983

STATUTES Civil Practice and Remedies Code, ยง11.102 Civil Practice and Remedies Code, ยง11.103 5


Code of Judicial Conduct, Canon 3B(1) Texas Government Code, ยง22.221(a),(b) Texas Government Code, ยง552.351 Texas Penal Code, ยง37.10 Texas Rule of Appellate Procedure, Rule 25.1(a) and (b) Texas Rules of Civil Procedure, Rule 24 Texas Rules of Civil Procedure, Rules 25 Texas Rules of Civil Procedure, Rules 26 Texas Rules of Civil Procedure, Rules 27

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STATEMENT OF THE CASE (1) A Concise Description of the Nature of the Case: This is an action filed to enforce petitioner’s rights thru suit for writ of mandamus (provided for by the public information act, uniform declaratory judgment act, and the texas and u. s. constitutions) to obtain declaratory and injunctive relief for District Clerk’s tampering with government case file records concerning petitioner, and for District Clerk’s and Susan Fillion’s (public information officer for Harris County Attorney’s Office) refusals to comply with written request for copies of information concerning unlawfully “altered” documents contained in Petitioner’s Divorce Record and 2003 Suit Affecting Parent-Child Relationship, improperly filed in record of Petitioner’s Divorce (which has remained closed since 1997). Petitioner must first obtain permission from a local administrative judge before filing suit, because petitioner has been previously determined a “vexatious litigant” and is under a prefiling order prohibiting petitioner from filing any litigation in the state of Texas without prior permission from a local administrative judge. Other Real Parties in Interest, Patricia Lykos (Harris County District Attorney) and Greg Abbott (Attorney General of Texas), refused to perform their 7


ministerial duties to issue statement and determinations of violation of the public information act, as required by the Act, for petitioner’s complaints of such from District Clerk and Susan Fillion.

(2) Name of the Judge Who Signed the Order or Judgment Appealed From: The Honorable Joseph J. Halbach, Jr., Chief Administrative District Judge, Administrative Office of the District Courts, Harris County, Texas

(3) Designation of the Trial Court and the County in which it is located: The Honorable Al Bennett, District Judge, 61st Judicial District, Harris County, Texas.

(4) Disposition of the Case by the Trial Court: Judges and Clerk refused to comply with Civ. Prac. & Rem. Code, Section 11.103, for Mistaken Filing of Lawsuit (from person previously declared a vexatious litigant). Judge Bennett refused to rule on “motion for permission to file suit” from petitioner. District Clerk stated that Clerk “voided” original petition, and returned petitioner’s “notice of appeal” with the word “voided” written over clerk’s file-stamp. And Judge Halbach, Jr., issued administrative order denying 8


permission to file writ of mandamus and stating “that all government agencies have responded appropriately to petitioner’s requests”.

(5) The Parties in the Court of Appeal: a. Hon. Chris Daniel, District Clerk, Harris County District Courts, Respondent b. Hon. Al Bennett, District Judge, 61st Judicial District, Harris County District Court, Respondent c. Hon. Joseph J. Halbach, Jr., Local Administrative District Judge, Harris County District Courts, Respondent d. (Real Parties in Interest, Susan Fillion, Patricia Lykos, and Greg Abbott were mistakenly left out of the appellate proceeding, and were not served.)

(6) District of the Court of Appeals: The 14th Judicial District of the Court of Appeals for the State of Texas, Houston Division.

(7) Names of the Justices who participated in the Decision in the Court of Appeals, Author of the Opinion for the Court, and the Author of any separate Opinion: 9


The court of appeals issued an opinion authored by Justice Kem Thompson Frost, in which Justices Seymore and Jamison joined.

(8) Citation for the Court of Appeals Opinion: In re Patricia A. Potts(Tex. App. Dist. 14 -11/29/2011)

(9) Disposition of the Case by the Court of Appeals, including the Disposition of any Motions for Rehearing or En Banc Reconsideration, and Whether any Motions for Rehearing or En Banc Reconsideration are Pending in the Court of Appeals at the Time the Petition For Review is Filed: Justices dismissed petition against respondent District Clerk stating that the appeals court lacked mandamus jurisdiction over District Clerk. And Justices denied mandamus relief for respondent judges stating that Judge Bennett “is not the local administrative judge and thus does not have authority to order the filing of relator’s petition.” And Justices found that Record did not indicate that Judge Halbach had abused his discretion in denying permission to file litigation, and finding that the public agencies had responded appropriately to relator’s requests for information and enforcement of the Public Information Act. Petitioner filed a motion for rehearing and for en banc reconsideration on December 07, 2011, and 10


both were denied on December 22, 2011. No other motions for rehearing or en banc reconsideration are pending in the court of appeals.

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No.____________ IN THE SUPREME COURT OF TEXAS AT AUSTIN, TEXAS _____________________________________ PATRICIA A. POTTS Petitioner, V. CHRIS DANIEL, HARRIS COUNTY DISTRICT CLERK, AL BENNETT, 61st JUDICIAL DISTRICT JUDGE, and IN HIS OFFICIAL CAPACITY AS CIVIL ADMINISTRATIVE DISTRICT JUDGE OF HARRIS COUNTY, TEXAS, AND JOSEPH J. HALBACH, JR., IN HIS OFFICIAL CAPACITY AS CHIEF ADMINISTRATIVE DISTRICT JUDGE OF HARRIS COUNTY, TEXAS Respondents ____________________________________________________ On Petition for Review from the Fourteenth Court of Appeals at Houston, Texas DOCKET NO. 14-11-00947-CV __________________________________________________ Cause No. 2011-51275 In the 61st Judicial District Court Of Harris County, Texas __________________________________________________ PETITION FOR REVIEW _______________________________________________________ TO THE HONORABLE SUPREME COURT OF TEXAS:

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INTRODUCTION Public Officials of the State of Texas have subjected pro se petitioner (and minor daughter) to ongoing Free Speech and Whistleblower Retaliation for more than twelve (12) years, and unlawfully obstructed petitioner’s lawsuits against such, thru district clerk’s and county attorney’s (1)denials of access to public information and public case file records, (2)unlawful “altering” of case file records, and (3)unlawful contest of petitioner’s affidavits of indigence attesting to receipt of government entitlement. And Harris County Attorney’s Office, has assaulted and falsely defamed petitioner for seven (7) years with false defamation of mental illness and repeated involuntary commitments for unneeded and unwarranted mental health care. And Harris County District Attorney (real party in interest), unfairly and unlawfully held petitioner incarcerated for six months for criminal charge later dismissed (without ever giving petitioner her right to a Trial) while Defendants of petitioner’s then current lawsuit unfairly obtained Order declaring petitioner a “vexatious litigant”, and prohibiting petitioner from filing any future litigation without prior permission from a local administrative judge. And now Courts, Respondents, and Real Parties in Interest are continuing to violate petitioner’s rights by depriving her of constitutional right of equal protection from, and constitutional right to petition for redress for, unlawful 13


“tampering with government records concerning petitioner” and denials of access to public information concerning “altered” (government) case file Record of petitioner’s own Divorce (closed since 1997) and fraudulent 2003 suit for termination of petitioner’s parental rights improperly filed and contained in petitioner’s Divorce Record. [These Records document unlawful fraud upon the court and conspiracy to falsely defame petitioner with mental illness/mental incompetence by Public Officials of the State of Texas, and others.] And to cover up the foregoing, the Fourteenth Court of Appeals has unfairly and arbitrarily held the following opinions which are contrary to multiple statutory mandates and numerous caselaw and opinions of other courts of appeals: 1. District Clerk’s refusal to forward “notice of appeal” does not establish appellate court mandamus jurisdiction over District Clerk. 2. 61st District Judge Bennett is not required to rule on a “motion” filed in and tendered directly to his court. 3. Chief Administrative District Judge did not abuse his discretion by denying petitioner permission to file suit against District Clerk, by finding that all public officials responded appropriately to petitioner’s requests, and by finding 14


that petitioner’s claim has no merit. This court should grant review to correct this blatant and shameless violation of my constitutional rights, and to maintain uniformity with the decisions of this and other Texas Courts of Appeals. STATEMENT OF JURISDICTION The Supreme Court is authorized to exercise jurisdiction in this cause pursuant to Section 22.001(a)(2) of the Texas Government Code, because the court of appeals’ opinion conflicts with other Texas courts of appeals on a question of law material to a decision of the case. The court of appeals held that a district clerk’s refusal to forward a “notice of appeal” does not establish mandamus jurisdiction over district clerk. This holding is in direct conflict with In re C. A. Smith, 270 S.W.3d 783 (Tex.2008), In re R. D. Smith, 263 S.W.3d 93,95 (Tex.2006), and In re Washington, 7 S.W.3d at 182 (Tex.1999), all holding appeals court jurisdiction for clerk’s refusal to forward notice of appeal; and all holding that a district clerk’s refusal to forward notice of appeal is an abuse of discretion for which mandamus is proper. And TRAP Rule 25.1(b) provides that filing of notice of appeal invokes appellate court’s jurisdiction. This Court has jurisdiction under Section 22.001(a)(3) of the Texas Government Code, because this is a case involving the construction of a statute 15


necessary to a determination of the case. The Fourteenth Court of Appeals has failed to address issue of Trial Court’s failure to comply with Tex. Civ. Prac. & Rem. Code, Section 11.103 for dismissal of Mistakenly Filed lawsuit thru properly filed notice that plaintiff is a vexatious litigant. And Court has ruled that an Administrative District Judge is not required to rule on a “motion” filed in and tendered directly to his court. However, Canon 3B(1) of the Code of Judicial Conduct, dictates “a judge shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate.” The Supreme Court also has jurisdiction over this appeal under Texas Government Code 22.001(a)(6), because the court of appeals committed an error of law of such importance to the state’s jurisprudence that it should be corrected. The court of appeals has violated the Texas and U. S. Constitutions and deprived petitioner of rights of equal protection from rules of civil and appellate procedure, and of due process for depriving petitioner of her lawsuit (Cause No. 2011-51275). The court of appeals’ decision has implications for beyond access to case file (court) records. The holding could easily be applied to deprive others of their constitutional right to petition for redress.

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ISSUES PRESENTED ISSUE 1: WHETHER PETITIONER’S LAWSUIT (CAUSE NO. 2011-51275) WAS A MISTAKEN FILING PURSUANT TO SECTION 11.103 OF THE CIVIL PRACTICE AND REMEDIES CODE. ISSUE 2: WHETHER DISTRICT CLERK’S “VOIDING” OF CASE FILE RECORDS AND REFUSAL TO FORWARD “NOTICE OF APPEAL” DEPRIVED PETITIONER OF FUNDAMENTAL CONSTITUTIONAL RIGHTS AND A MEANINGFUL APPEAL. STATEMENT OF FACTS The Petitioner acknowledges the accuracy of the court of appeals factual account except for its omission of issue that petitioner’s lawsuit was a MISTAKEN FILING (pursuant to Section 11.103 of the Civil Practice and Remedies Code) for which petitioner was unfairly deprived of “due process” and “equal protection” of civil practice and remedies code & rules of civil and appellate procedures, before depriving petitioner of her lawsuit, Cause No. 2011-51275, and right to appeal trial court (administrative) judge Bennett’s refusal to rule. On August 29, 2011, Petitioner submitted original petition (a motion for permission to file petition for writ of mandamus) to District Clerk via personal delivery for filing. District Clerk filed motion and handed Petitioner a file-stamped copy of her petition stamped Cause No. 2011-51275. (See Appendix Exhibit C) Then Civil Intake employee of District Clerk’s Office began reviewing document and commented that she was not supposed to have filed petitioner’s lawsuit, 17


since petitioner was on list of vexatious litigants. Then, Civil Intake employee stated that petitioner’s document was going to be “voided”. On the same day that petitioner heard that civil intake clerk was going to “void” document, Petitioner personally delivered a copy of her petition, filestamped with clerk’s stamp, to 61st District Court Clerk, Terri Kirby, for submission directly to 61st District (Civil Administrative) Judge Al Bennett for ruling upon. On September 07, 2011, Petitioner submitted “objection and request for order directing defendant district clerk to properly file petitioner’s submitted motion and to correctly designate all defendants as parties” to district clerk for filing in Cause No. 2011-51275. District Clerk returned a properly file-stamped copy to petitioner thru the U.S. mail. (See Appendix Exhibit D) On September 22, 2011, Petitioner submitted “objection to administrative judge’s refusals to rule upon petitioner’s filed motions” to district clerk for filing in Cause No. 2011-51275. District Clerk returned a file-stamped copy of document with clerk’s file stamp crossed out. (See Appendix Exhibit E) On September 22, 2011, Petitioner submitted “emergency application for temporary restraining order” to district clerk for filing in Cause No. 2011-51275. District Clerk returned a properly file-stamped copy to petitioner thru the U.S. 18


mail. (See Appendix Exhibit F) On October 05, 2011, Petitioner submitted “objection to refusal to rule on emergency application for temporary restraining order”, “notice of appeal” and “amended notice of appeal” to District Clerk for filing in Cause No. 2011-51275. District Clerk filed objection and notices of appeal, then returned file-stamped copies of objection and notices of appeal back to petitioner with the word “voided” written across clerk’s file stamp on notices of appeal. (See Appendix Exhibits J, M and N) And from September 07, 201 to October 05, 2011, District Clerk’s Office and 61st District Court continued to inform petitioner that there was “no record” of petitioner’s lawsuit in District Clerk’s records, every time petitioner telephoned to inquire about her lawsuit. And District Clerk refused to forward petitioner’s “notice of appeal” and “amended notice of appeal” to the appropriate court of appeals. SUMMARY OF THE ARGUMENT The ultimate issue presented by this petition is that petitioner’s lawsuit (Cause No.2011-51275) is a “Mistaken Filing” (pursuant to Civil Practice and Remedies Code, Section §11.103) and that District Clerk can only “stay” and dismiss mistakenly filed lawsuit thru filed “notice” that plaintiff is a vexatious 19


litigant subject to a prefiling order. And District Clerk’s “document voiding” and refusal to forward notices of appeal for mistakenly filed Cause No. 2011-51275 is an abuse of discretion, and a violation of petitioner’s fundamental constitutional rights, for which mandamus is proper. ARGUMENT AND AUTHORITIES I. Petitioner’s lawsuit (Cause No. 2011-51275) is a Mistaken Filing pursuant to Civil Practice and Remedies Code, Section §11.103(b), that can only be stayed or dismissed after District Clerk, or other party to lawsuit, files and serves to all parties “notice” that plaintiff is a vexatious litigation subject to a prefiling order. On August 29, 2011, Petitioner submitted litigation to District Clerk for filing without obtaining prior permission from administrative law judge. Litigation lists District Clerk as one of the Defendants.(See Appendix Exhibit C) On August 29, 2011, District Clerk mistakenly “filed” petitioner’s litigation without prior order granting permission to file litigation from local administrative law judge. Then, instead of (Defendant) District Clerk filing “notice that plaintiff is a vexatious litigant subject to a prefiling order” and obtaining order for dismissal, as required by Civ. Prac. & Rem. Code, Section 11.103, District Clerk began “voiding” petitioner’s documents and removing Cause No. 2011-51275 from district clerk records.(See Appendix Exhibits E, J, and N) II. District Clerk’s “document voiding” and refusal to forward notices of appeal to the appropriate court of appeals, is an abuse of discretion and a 20


violation of petitioner’s constitutional rights which denied petitioner of an appeal. District Clerk’s “voiding” of petitioner’s notices of appeal is an abuse of discretion which violated petitioner’s fundamental constitutional rights and denied petitioner of an appeal. Section 11.103(b) of the Civil Practice and Remedies Code provides that a party to the litigation must file and serve on all parties a “notice” stating that plaintiff is a vexatious litigation subject to a prefiling order, before staying the litigation and dismissing the litigation upon plaintiff’s failure to obtain an order permitting the litigation. Texas Rules of Appellate Procedure, Rule 21.8(c) provides for appeal of a trial court judge’s refusal to rule on motion properly filed to his court. Rule 25 of the Texas Rules of Civil Procedure dictates that District Clerk must keep a file docket which shows case number, name of parties and attorneys, nature of suit, and all proceedings had in the case with the dates thereof. And The Fourteenth Amendment of the U. S. Constitution states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” And Texas Rules of Civil Procedure, Rule 76(a) prohibits removing court records from

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court files except as permitted by statute or rule. And Penal Code 37.10 states that it is a criminal offense to intentionally remove “a governmental record”, for any reason except thru legal authorization. But District Clerk has deprived petitioner of her lawsuit (Cause No. 2011-51275) and access to appeals court for appeal of such, without “due process” of appeal. And District Clerk has denied petitioner of “equal protection” of the law regarding Civil Practice and Remedies Code for Clerk’s Mistaken Filings, and “equal protection” of the laws governing civil and appellate procedure for appeal of judge’s refusal to rule. Thus, District Clerk’s “voiding” of petitioner’s filings is an arbitrary and capricious abuse of discretion which should be corrected. And District Clerk’s refusal to forward petitioner’s notices of appeal to the appropriate court of appeals is an abuse of discretion and violation of petitioner’s rights which denied petitioner of an appeal. Texas Rule of Appellate Procedure §25.1(b) provides that the filing of a notice of appeal invokes the appellate court’s jurisdiction over all parties to the trial court’s judgment appealed from. It further states, “Any party’s failure to take any other step required by these rules...does not deprive the appellate court of jurisdiction but is ground only for the appellate court to act appropriately.” Texas Government Code 22.221(a) provides that a court of appeals has jurisdiction to issue writ of mandamus to enforce its 22


jurisdiction. And Mandamus relief is appropriate when a trial court clerk fails to file and forward a notice of appeal to the appropriate court of appeals. See Smith, 263 S.W.3d at 93-96;  Washington, 7 S.W.3d at 182; and Smith, 270 S.W.3d at 783. REASON FOR ASSUMPTION OF JURISDICTION

The Supreme Court should exercise jurisdiction to hear this case for multiple very important reasons. First, the Fourteenth Court of Appeals’ opinion finding that it lacks mandamus jurisdiction over District Clerk conflicts with other Texas courts of appeal which have found that mandamus relief is appropriate to enforce appellate jurisdiction when a clerk fails to file or forward a notice of appeal to the appropriate appeals court. And court of appeals opinion that 61st District Judge is not required to rule on motions filed and submitted directly to his court, also, conflicts with other Texas courts of appeal. And this court should hear this case because it involves very important and fundamental issues of constitutional rights, and the court of appeals appears to have committed an error of law of such importance to the states’ jurisprudence that it should be corrected. District Clerk’s “voiding” of government case file records concerning petitioner without legal authorization is a criminal offense prohibited by state and

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federal law the Public Information Act and the Texas Penal Code, and a violation of petitioner’s rights prohibited by federal law. (See 18 u.s.c. 1842 and 42 u.s.c. 1983 in Index of authorities) PRAYER WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully prays this Honorable Court to reverse the opinion of the court of appeals dismissing petition for lack of jurisdiction and denying remainder of petition for writ of mandamus, and render judgments: 1. Compelling Judge Bennett to issue order granting Petitioner permission to file writ of mandamus against District Clerk, and real parties in interest, and 2. Compelling Judge Bennett to rule on petitioner’s motions filed in Cause No. 2011-51275, and 3. Prohibiting District Clerk from “voiding” petitioner’s case file records, and 4. Compelling District Clerk to forward “notices of appeal, and all other documents necessary to determine appellate timetable, to the appropriate court of appeals, and 5. Remanding this case back to trial court for appeal of refusal to rule by Judge Bennett. Respectfully submitted, /s/

Patricia A. Potts, pro se PO Box 3453 Crosby, TX 77532 (281) 386-2187 Patpotts3@hotmail.com 24


CERTIFICATE OF SERVICE I hereby certify by my signature above that a true and correct copy of the above and foregoing document was e-served on January 02, 2012 in accordance with Texas Rules of Appellate Procedure, to: (1)Hon. Chris Daniel, District Clerk, Harris County District Courts, Respondent (2)Hon. Al Bennett, 61st Judicial District Judge, Civil Administrative District Judge, Harris County District Courts, Respondent (3)Hon. Joseph J. Halbach, Jr., Chief Administrative District Judge, Administrative Office of the District Courts, Respondent (4)Susan Fillion, Public Information Officer for Harris County Attorney’s Office, Real Party in Interest (5)Patricia Lykos, Harris County District Attorney, Real Party in Interest (6)Greg Abbott, Attorney General of Texas, Real Party in Interest INDEX TO APPENDIX A. Necessary Contents: 1. Letter and Administrative Order 2. Judgment and Opinion of the Court of Appeals 3. Relevant Constitutional and Statutory Provisions 4. Prefiling Order 5. “Motion For Permission to File Writ of Mandamus” 6. “Notice of Appeal” 7. “Amended Notice of Appeal” 25


1. LETTER AND ADMINISTRATIVE ORDER

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cc: Chris Daniels 27


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2. JUDGMENT AND OPINION OF THE COURT OF APPEALS

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3. RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

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U.S. Constitution, Amendment 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.

U.S. Constitution, Amendment 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 offence 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.

U.S. Constitution, Amendment 14 Section 1. All persons born or naturalized in the United States, and 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 citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis 38


of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Texas Constitution, art. 1, sec. 3 Sec. 3. EQUAL RIGHTS. All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.

Texas Constitution, art. 1, sec. 3(a) (a) The Supreme Court shall exercise the judicial power of the state except as otherwise provided in this Constitution. Its jurisdiction shall be co-extensive with the limits of the State and its determinations shall be final except in criminal law 39


matters. Its appellate jurisdiction shall be final and shall extend to all cases except in criminal law matters and as otherwise provided in this Constitution or by law. The Supreme Court and the Justices thereof shall have power to issue writs of habeas corpus, as may be prescribed by law, and under such regulations as may be prescribed by law, the said courts and the Justices thereof may issue the writs of mandamus, procedendo, certiorari and such other writs, as may be necessary to enforce its jurisdiction. The Legislature may confer original jurisdiction on the Supreme Court to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the Governor of the State. "(b) The Supreme Court shall also have power, upon affidavit or otherwise as by the court may be determined, to ascertain such matters of fact as may be necessary to the proper exercise of its jurisdiction.

Texas Constitution, art. 1, sec. 19 Sec. 19. DEPRIVATION OF LIFE, LIBERTY, ETC.; DUE COURSE OF LAW. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land. Texas Constitution, art. 1, sec. 27 Sec. 27. RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance. Texas Constitution, art. 5, section 6 Sec. 6. COURTS OF APPEALS; TERMS OF JUSTICES; CLERKS. (a) The state shall be divided into courts of appeals districts, with each district having a Chief Justice, two or more other Justices, and such other officials as may be provided by law. The Justices shall have the qualifications prescribed for Justices of the Supreme Court. The Court of Appeals may sit in sections as authorized by law. The concurrence of a majority of the judges sitting in a section is necessary to decide a case. Said Court of Appeals shall have appellate jurisdiction co-extensive with the limits of their respective districts, which shall extend to all cases of which the 40


District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. Provided, that the decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error. Said courts shall have such other jurisdiction, original and appellate, as may be prescribed by law. (b) Each of said Courts of Appeals shall hold its sessions at a place in its district to be designated by the Legislature, and at such time as may be prescribed by law. Said Justices shall be elected by the qualified voters of their respective districts at a general election, for a term of six years and shall receive for their services the sum provided by law. (c) All constitutional and statutory references to the Courts of Civil Appeals shall be construed to mean the Courts of Appeals. UNITED STATES CODES U. S. Code 18 USC ยง242; DEPRIVATION OF RIGHTS UNDER COLOR OF LAW Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

U. S. Code 42 USC ยง1983; CIVIL ACTION FOR DEPRIVATION OF RIGHTS Every person who, under color of any statute, ordinance, regulation, custom, or 41


usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

STATUTES Civil Practice and Remedies Code, ยง11.102, PERMISSION BY LOCAL ADMINISTRATIVE JUDGE. (a) A local administrative judge may grant permission to a person found to be a vexatious litigant under Section 11.101 to file a litigation only if it appears to the judge that the litigation: (1) has merit; and (2) has not been filed for the purposes of harassment or delay. (b) The local administrative judge may condition permission on the furnishing of security for the benefit of the defendant as provided in Subchapter B.

Civil Practice and Remedies Code, ยง11.103, DUTIES OF CLERK; MISTAKEN FILING. (a) A clerk of a court may not file a litigation presented by a vexatious litigant subject to a prefiling order under Section 11.101 unless the litigant obtains an order from the local administrative judge permitting the filing. (b) If the clerk mistakenly files a litigation without an order from the local administrative judge, any party may file with the clerk and serve on the plaintiff 42


and the other parties to the suit a notice stating that the plaintiff is a vexatious litigant subject to a prefiling order under Section 11.101. On the filing of the notice, the court shall immediately stay the litigation and shall dismiss the litigation unless the plaintiff, not later than the 10th day after the date the notice is filed, obtains an order from the local administrative judge under Section 11.102 permitting the filing of the litigation. (c) If the local administrative judge issues an order permitting the filing of the litigation under Subsection (b), the litigation remains stayed and the defendant need not plead until the 10th day after the date the defendant is served with a copy of the order. Code of Judicial Conduct, Canon 3B(1), Adjudicative Responsibilities. 3B.(1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate. Texas Government Code, ยง22.221(a)and(b) WRIT POWER. (a) Each court of appeals or a justice of a court of appeals may issue a writ of mandamus and all other writs necessary to enforce the jurisdiction of the court. (b) Each court of appeals for a court of appeals district may issue all writs of mandamus, agreeable to the principles of law regulating those writs, against a: (1) judge of a district or county court in the court of appeals district; or (2) judge of a district court who is acting as a magistrate at a court of inquiry under Chapter 52, Code of Criminal Procedure, in the court of appeals district. (c) Repealed by Acts 1987, 70th Leg., ch. 148, Sec. 2.03, eff. Sept. 1, 1987. (d) Concurrently with the supreme court, the court of appeals of a court of appeals district in which a person is restrained in his liberty, or a justice of the court of appeals, may issue a writ of habeas corpus when it appears that the restraint of liberty is by virtue of an order, process, or commitment issued by a court or judge because of the violation of an order, judgment, or decree previously made, rendered, or entered by the court or judge in a civil case. 43


Pending the hearing of an application for a writ of habeas corpus, the court of appeals or a justice of the court of appeals may admit to bail a person to whom the writ of habeas corpus may be granted. Texas Government Code, ยง552.351. DESTRUCTION, REMOVAL, OR ALTERATION OF PUBLIC INFORMATION, SUBCHAPTER I. CRIMINAL VIOLATIONS Sec. 552.351. (a) A person commits an offense if the person willfully destroys, mutilates, removes without permission as provided by this chapter, or alters public information. (b) An offense under this section is a misdemeanor punishable by: (1) a fine of not less than $25 or more than $4,000; (2) confinement in the county jail for not less than three days or more than three months; or (3) both the fine and confinement. (c) It is an exception to the application of Subsection (a) that the public information was transferred under Section 441.204. Texas Penal Code, ยง37.10 TAMPERING WITH GOVERNMENTAL RECORD. (a) A person commits an offense if he: (1) knowingly makes a false entry in, or false alteration of, a governmental record; (2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record; (3) intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record; (4) possesses, sells, or offers to sell a governmental record or a blank governmental record form with intent that it be used unlawfully; (5) makes, presents, or uses a governmental record with knowledge of its falsity; or (6) possesses, sells, or offers to sell a governmental record or a blank governmental record form with knowledge that it was obtained unlawfully. (b) It is an exception to the application of Subsection (a)(3) that the governmental record is destroyed pursuant to legal authorization or transferred under Section 441.204, Government Code. With regard to the destruction of a local 44


government record, legal authorization includes compliance with the provisions of Subtitle C, Title 6, Local Government Code. (c)(1) Except as provided by Subdivisions (2), (3), and (4) and by Subsection (d), an offense under this section is a Class A misdemeanor unless the actor's intent is to defraud or harm another, in which event the offense is a state jail felony. (2) An offense under this section is a felony of the third degree if it is shown on the trial of the offense that the governmental record was: (A) a public school record, report, or assessment instrument required under Chapter 39, Education Code, or was a license, certificate, permit, seal, title, letter of patent, or similar document issued by government, by another state, or by the United States, unless the actor's intent is to defraud or harm another, in which event the offense is a felony of the second degree; (B) a written report of a medical, chemical, toxicological, ballistic, or other expert examination or test performed on physical evidence for the purpose of determining the connection or relevance of the evidence to a criminal action; or (C) a written report of the certification, inspection, or maintenance record of an instrument, apparatus, implement, machine, or other similar device used in the course of an examination or test performed on physical evidence for the purpose of determining the connection or relevance of the evidence to a criminal action. (3) An offense under this section is a Class C misdemeanor if it is shown on the trial of the offense that the governmental record is a governmental record that is required for enrollment of a student in a school district and was used by the actor to establish the residency of the student. (4) An offense under this section is a Class B misdemeanor if it is shown on the trial of the offense that the governmental record is a written appraisal filed with an appraisal review board under Section 41.43(a-1), Tax Code, that was performed by a person who had a contingency interest in the outcome of the appraisal review board hearing.

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(d) An offense under this section, if it is shown on the trial of the offense that the governmental record is described by Section 37.01(2)(D), is: (1) a Class B misdemeanor if the offense is committed under Subsection (a)(2) or Subsection (a)(5) and the defendant is convicted of presenting or using the record; (2) a felony of the third degree if the offense is committed under: (A) Subsection (a)(1), (3), (4), or (6); or (B) Subsection (a)(2) or (5) and the defendant is convicted of making the record; and (3) a felony of the second degree, notwithstanding Subdivisions (1) and (2), if the actor's intent in committing the offense was to defraud or harm another. (e) It is an affirmative defense to prosecution for possession under Subsection (a)(6) that the possession occurred in the actual discharge of official duties as a public servant. (f) It is a defense to prosecution under Subsection (a)(1), (a)(2), or (a)(5) that the false entry or false information could have no effect on the government's purpose for requiring the governmental record. (g) A person is presumed to intend to defraud or harm another if the person acts with respect to two or more of the same type of governmental records or blank governmental record forms and if each governmental record or blank governmental record form is a license, certificate, permit, seal, title, or similar document issued by government. (h) If conduct that constitutes an offense under this section also constitutes an offense under Section 32.48 or 37.13, the actor may be prosecuted under any of those sections. (i) With the consent of the appropriate local county or district attorney, the attorney general has concurrent jurisdiction with that consenting local prosecutor to prosecute an offense under this section that involves the state Medicaid program. (j) It is not a defense to prosecution under Subsection (a)(2) that the record, document, or thing made, presented, or used displays or contains the statement "NOT A GOVERNMENT DOCUMENT" or another substantially similar statement intended to alert a person to the falsity of the record, document, or thing, unless the record, document, or thing displays the statement diagonally printed clearly and indelibly on both the front and back of the record, document, or thing in solid red capital letters at least one-fourth inch in height.

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Texas Rule of Appellate Procedure, Rule 25.1(a) & (b) Notice of Appeal. An appeal is perfected when a written notice of appeal is filed with the trial court clerk. If a notice of appeal is mistakenly filed with the appellate court, the notice is deemed to have been filed the same day with the trial court clerk, and the appellate clerk must immediately send the trial court clerk a copy of the notice. (b) Jurisdiction of Appellate Court. The filing of a notice of appeal by any party invokes the appellate court’s jurisdiction over all parties to the trial court’s judgment or order appealed from. Any party’s failure to take any other step required by these rules, including the failure of another party to perfect an appeal under (c), does not deprive the appellate court of jurisdiction but is ground only for the appellate court to act appropriately, including dismissing the appeal.

Texas Rules of Civil Procedure, Rules 24,25,26,27 RULE 24. DUTY OF CLERK When a petition is filed with the clerk he shall indorse thereon the file number, the day on which it was filed and the time of filing, and sign his name officially thereto. RULE 25. CLERK'S FILE DOCKET Each clerk shall keep a file docket which shall show in convenient form the number of the suit, the names of the attorneys, the names of the parties to the suit, and the nature thereof, and, in brief form, the officer's return on the process, and all subsequent proceedings had in the case with the dates thereof. RULE 26. CLERK'S COURT DOCKET Each clerk shall also keep a court docket in a permanent record that shall include 47


the number of the case and the names of the parties, the names of the attorneys, the nature of the action, the pleas, the motions, and the ruling of the court as made. RULE 27. ORDER OF CASES The cases shall be placed on the docket as they are filed.

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4. PREFILING ORDER

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PATRICIA A. POTTS