Name: _____________________
Address: ____________________________
City: _____________ ST: ________ Zip: _______
Email: __________________________
Case: ______________
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Name: _________________ Plaintiff VS Name:_________________ Defendant |
§ § § § § |
Court: __________________ County Of ______________ |
Now comes Name: ______________________ , hereinafter referred to as “Plaintiff,” and will show the court as follows:
Plaintiff was harmed by Defendant, consequent to the refusal of Defendant to perform an administrative duty, placed on Defendant by the swearing on his oath to protect the Constitution.
Plaintiff, as a citizen in this republic known as the State of Texas, before allowing Defendant to take public office, as a covenant of the contract for payment of services, demanded that Plaintiff swear on his/her oath that Defendant would uphold the laws of the State of Texas. Defendant failed to perform in compliance with said oath by failing to perform an administrative duty by refusing to issue a warrant against a person accused of crime.
Said refusal was in direct violation of Texas Code of Criminal Procedure 15.09 which reads in pertinent part as follows:
Art. 15.09. COMPLAINT MAY BE FORWARDED. A complaint in accordance with Article 15.05, may be forwarded as provided by Article 15.08 to any magistrate in the State; and the magistrate who receives the same shall forthwith issue a warrant for the arrest of the accused; and the accused, when arrested, shall be dealt with as provided in this Chapter in similar cases.
Said refusal to perform under Defendant’s contract with the state had the effect of shielding the accused from prosecution in violation of Texas Penal Code 38.05(a)(2) which reads as follows:
Sec. 38.05. HINDERING APPREHENSION OR PROSECUTION. (a) A person commits an offense if, with intent to hinder the arrest, prosecution, conviction, or punishment of another for an offense or, with intent to hinder the arrest, detention, adjudication, or disposition of a child for engaging in delinquent conduct that violates a penal law of the state, or with intent to hinder the arrest of another under the authority of a warrant or capias, he:
(2) provides or aids in providing the other with any means of avoiding arrest or effecting escape;
Defendant also violaterd Texas Penal Code 39.03 which reads in pertinent part as follows:
Sec. 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office or employment commits an offense if he:
(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;
(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or
(3) intentionally subjects another to sexual harassment.
(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.
(c) In this section, "sexual harassment" means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.
(d) An offense under this section is a Class A misdemeanor, except that an offense is a felony of the third degree if the public servant acted with the intent to impair the accuracy of data reported to the Texas Education Agency through the Public Education Information Management System (PEIMS) described by Sections 48.008 and 48.009, Education Code, under a law requiring that reporting.
Said refusal on the part of Defendant to perform an administrative duty had the effect of denying Plaintiff his/her rights in violation of the Texas Constitution Article 1, Section 3 which reads as follows:
Article 1 Section 3: That the general, great and essential principles of liberty and free government may be recognized and established, we declare:
Sec. 3. EQUAL RIGHTS. All freemen†, 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.
Sec. 3a. EQUALITY UNDER THE LAW. Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.
Said failure further disenfranchised Plaintiff in violation of Texas Constitution Article 1, Section 19 which reads as follows:
Sec. 19. DEPRIVATION OF LIFE, LIBERTY, PROPERTY, ETC. BY 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.
Said misfeasance in office had the effect of repudiating Defendant’s contract with the state and a failure to provide Plaintiff in the procedural due process of the laws of the State of Texas, harming Plaintiff thereby.
Name: _____________________
Address: ____________________________
City: ___________________ ST: ________ Zip: _______
Email: __________________________
Address: ____________________________
City: __________________ ST: ________ Zip: _______
Email: __________________________
Plaintiff intends to conduct discovery under Level 2 of Texas Rules of Civil Procedure 190.3.
Suit is proper in Texas as all parties are residents of the State of Texas and Plaintiff is and was, at the time of the incident, a resident of the county filing.
Defendant is sued in his/her individual capacity as the improper acts alleged amount to a failure on the part of Defendant to perform an administrative act.
The amount in controversy is within the limits of the jurisdiction of this court.
Venue is proper in this county in accordance with Texas Civil Practice and Remedies Code 15.002(a)(1) which reads in pertinent part as follows,
Sec. 15.002. VENUE: GENERAL RULE. (a) Except as otherwise provided by this subchapter or Subchapter B or C, all lawsuits shall be brought:
(1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;
All actions complained of occurred in this and the amounts sued for is less than the maximum amount set by Texas Government Code 27.031 which reads in pertinent part as follows:
(a) In addition to the jurisdiction and powers provided by the constitution and other law, the justice court has original jurisdiction of:
(1) civil matters in which exclusive jurisdiction is not in the district or county court and in which the amount in controversy is not more than $20,000, exclusive of interest;
On the Date: _____________ , Complainant presented criminal complaint(s) against Name: _____________________, wherein Complainant accused said official of violating a law relating to his/her office. (See attached as Exhibit A) (attach the complaint the magistrate refused to act on and mark it exhibit A, in pen at the top will be fine)
Said complaint was complete in accordance with Texas Code of Criminal Procedure 15.05 which reads as follows:
Art. 15.05. REQUISITES OF COMPLAINT. The complaint shall be sufficient, without regard to form, if it have these substantial requisites:
1. It must state the name of the accused, if known, and if not known, must give some reasonably definite description of him.
2. It must show that the accused has committed some offense against the laws of the State, either directly or that the affiant has good reason to believe, and does believe, that the accused has committed such offense.
3. It must state the time and place of the commission of the offense, as definitely as can be done by the affiant.
4. It must be signed by the affiant by writing his name or affixing his mark.
Defendant failed to perform his/her duty as prescribed by Texas Code of Criminal Procedure 15.09 which reads as follows:
Art. 15.09. COMPLAINT MAY BE FORWARDED. A complaint in accordance with Article 15.05, may be forwarded as provided by Article 15.08 to any magistrate in the State; and the magistrate who receives the same shall forthwith issue a warrant for the arrest of the accused; and the accused, when arrested, shall be dealt with as provided in this Chapter in similar cases.
By the above, the Legislature, on passing Texas Code of Criminal Procedure 15.09 the Texas Legislature prescribed a ministerial duty upon magistrates in the State of Texas.
The courts in Hartford, Connecticut recently addressed the abuse of power by government as follows:
The law limits the power of the good lest the wicked inherit it.
Until recently, most of us have believed that the checks and balances within our legal system require no attention to keep them running smoothly. But recent events have undermined that confidence. Faith that government's three great gears-the executive, the legislative, and the judicial- are self-calibrating has been seriously undercut by a pandemic and by violence from the right and the left. CT Freedom Alliance, LLC, ET AL v State of Connecticut Department of Education, ET AL. March 8, 2021).
The above is a wonderful read for anyone concerned with the excesses of government during times like these where the best people, with the highest of motives, wreak havoc from the noblest intent. The above notion was adroitly addressed by HG Wells in his Outline Of History, on speaking to the excesses of the popes during the dark ages, he very apply observed:
The giver of the law most owes the law allegiance. He of all beings should behave as if the law compels him. But it is the universal failing of mankind that, what we are given to administer, we promptly presume we own.
When Plaintiff presented criminal affidavits to Defendant who refused to perform his/her duty as prescribed under Texas Code of Criminal Procedure 15.09 (supra), (supra means: previously cited). Defendant failed to perform a duty Defendant was commanded to perform and, in the process, denied Plaintiff in the full and free access to and enjoyment of the right to the procedural due process of law in violation of Texas Penal Code 39.03 supra.
By failing to perform the duty prescribed by Texas Penal Code 39.03 supra, Defendant denied Plaintiff in the procedural due course of the laws of the State of Texas in direct violation of Texas Penal Code 39.03 which reads in pertinent part as follows:
Sec. 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office or employment commits an offense if he:
(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;
(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or
(3) intentionally subjects another to sexual harassment.
Further, by refusing to perform his statutory duty, Defendant acted to shield the accused from prosecution in violation of Texas Penal Code 38.05 which reads as follows:
Sec. 38.05. HINDERING APPREHENSION OR PROSECUTION. (a) A person commits an offense if, with intent to hinder the arrest, prosecution, conviction, or punishment of another for an offense or, with intent to hinder the arrest, detention, adjudication, or disposition of a child for engaging in delinquent conduct that violates a penal law of the state, or with intent to hinder the arrest of another under the authority of a warrant or capias, he:
(1) harbors or conceals the other;
(2) provides or aids in providing the other with any means of avoiding arrest or effecting escape; or
(3) warns the other of impending discovery or apprehension. Without regard to whether the complaints were sufficient or not, whether Complainant was a police officer, sheriff deputy, or attorney, at this point, under the clear mandate of the clear language of the law, Defendant was without discretion. Defendant was not yet in a position to make a determination of probable cause. Defendant would not have that option until the person was arrested and brought before him in a proper examining trial to be held under Chapter 16 Texas Code of Criminal Procedure.
At trial on the merits Plaintiff will show, Defendant acted under pretense color of his/her official capacity. Said act was an act in furtherance of a long-standing practice of magistrates refusing to issue warrants when complaints are filed by private citizens against public officials. The failure of the magistrate to issue a warrant, upon being given notice of crime, was in direct violation of the statutory mandate contained in Texas Code of Criminal Procedure 15.09 supra. Defendant actions suggest that the persons named in the complaints filed by Plaintiff, be shielded from prosecution in direct violation of Texas Penal Code 38.05(supra).
It must be construed that Defendant acted with full knowledge of the impropriety of his acts as construed by the United States Supreme Court in SCREWS et al. v. UNITED STATES. No. 42. Argued Oct. 20, 1944, which reads in pertinent part as follows:
For the specific intent required by the Act is an intent to deprive a person of a right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them. Take the case of a local officer who persists in enforcing a type of ordinance which the Court has held invalid as violative of the guarantees of free speech or freedom of worship. Or a local official continues to select juries in manner which flies in the teeth of decisions of the Court. If those acts are done willfully, how can the officer possibly claim that he had no fair warning that his acts were prohibited by the statute? He violates the statute not merely because he has a bad purpose but because he acts in defiance of announced rules of law. He who defies a decision interpreting the Constitution knows precisely what he is doing. If sane, he hardly may be heard to say that he knew not what he did. Of course, willful conduct cannot make definite that which is undefined. But willful violators of constitutional requirements, which have been defined, certainly are in no position to say that they had no adequate advance notice that they would be visited with punishment. When they act willfully in the sense in which we use the word, they act in open defiance or in reckless disregard of a constitutional requirement which has been made specific and definite. When they are convicted for so acting, they are not punished for violating an unknowable something. SCREWS et al. v. UNITED STATES. No. 42. Argued Oct. 20, 1944. (emphasis added)
When Defendant failed to perform the above referenced ministerial duty Defendant was commanded to perform, Defendant was criminally culpable (liable under law) as construed by the Texas Legislature on passage of Texas Penal Code §6.01 which reads as follows:
Sec. 6.01. REQUIREMENT OF VOLUNTARY ACT OR OMISSION. (a) A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession.
(b) Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.
(c) A person who omits to perform an act does not commit an offense unless a law as defined by Section 1.07 provides that the omission is an offense or otherwise provides that he has a duty to perform the act.
In reference to Section 601(c) above, the actions complained of herein were specifically mandated duties of the public officials involved.
When a complaint is presented to a magistrate, the magistrate is commanded by Texas Code of Criminal Procedure 15.09 which reads as follows:
Art. 15.09. COMPLAINT MAY BE FORWARDED. A complaint in accordance with Article 15.05, may be forwarded as provided by Article 15.08 to any magistrate in the State; and the magistrate who receives the same shall forthwith issue a warrant for the arrest of the accused; and the accused, when arrested, shall be dealt with as provided in this Chapter in similar cases.
You will notice that the Legislature was clear in their mandate to issue a warrant. The Legislature used the term “shall.” In law, “shall” does not mean: “may, might, or can if s/he wants to.” It is obligatory; it means must and must be construed as such in accordance with Tex. Gov't Code § 311.016 which reads as follows:
Tex. Gov't Code § 311.016 “The following constructions apply unless the context in which the word or phrase appears necessarily requires a different construction or unless a different construction is expressly provided by statute:
(1) "May" creates discretionary authority or grants permission or a power.
(2) "Shall" imposes a duty.”
Under the provision of Texas Code of Criminal Procedure 15.09 supra; Legislators intended that there be no official gatekeeper. When a complaint is presented to a magistrate, said magistrate is commanded to issue a warrant as shown above. Nothing in the letter of the law can be construed to give the magistrate discretion. Public officials, by abuse of their discretion, have slammed the door shut to the public they serve. As a direct result of the above, our system is horribly out of control because the servants have locked out the masters.
In Texas, before a public official can take office, the people demand that they swear on their to their fidelity to the Republic of Texas and the United States.
In Texas, an oath of office is a solemn promise or affirmation made by an elected or appointed official to faithfully discharge their duties and responsibilities. While an oath of office is not a traditional contract in the classical sense, it shares similarities with contractual obligations and can be viewed as a binding agreement between the official and the state. Here’s how:
In contract law, consideration refers to the mutual promises or obligations exchanged between parties. In the oath of office, the official provides consideration by promising to uphold their duties and responsibilities, while the state provides consideration by granting the official the authority and power to perform those duties (Tex. Const., art. XVI, § 1).
Sec. 1. OFFICIAL OATH OF OFFICE. (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.
The Texas Canons of Judicial Conduct at Canon 2(a), further elaborates on this duty, stating as follows:
Canon 2: Avoiding Impropriety and the Appearance of Impropriety in All of the Judge's Activities
A. A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
This rule emphasizes the importance of judges maintaining their objectivity and avoiding any actions that might create the appearance of bias or impropriety.
In practice, this fiduciary duty manifests in several ways:
· Impartiality: Judges must remain neutral and unbiased in their decisions, avoiding any actions that might favor one party over another.
· Disclosure: Judges are required to disclose any potential conflicts of interest or biases that might affect their ability to impartially decide a case.
· Fairness: Judges must ensure that all parties are treated equally and given a fair opportunity to present their cases.
· Transparency: Judges must maintain transparency in their decision-making processes, providing clear and concise explanations for their rulings.
While the Cannons of Judicial Ethics do not, in themselves, create a cause of action, they are illustrative of the wrongdoing by Defendant.
Courts have recognized that “[a] fiduciary duty is the highest duty recognized by law.” Rawhide Mesa-Partners, Ltd. v. Brown McCarroll, L.L.P., 344 S.W.3d 56, 60 (Tex. App.— Eastland 2011, no pet.)
“A fiduciary duty is the highest duty recognized by law. Accordingly, it is not lightly created. ” Rawhide Mesa-Partners v. Brown McCarroll, 344 S.W.3d 56, 61 (Tex. App. 2011)
The laws, passed by the Texas Legislature are without substance absent a fair and honest judiciary. The ultimate trust of the public is placed in our judges to fairly and honestly adjudicate the rights of the litigants before it. Judges must avoid impropriety and the appearance of impropriety in all the Judge’s activities as stipulated by Texas Code of Judicial Conduct at Cannot 2 which reads as follows:
A. A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. A judge shall not allow any relationship to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; norshall a judge convey or permit othersto convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.
C. A judge shall not knowingly hold membership in any organization that practices discrimination prohibited by law.
The courts, in First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017), specified the elements for a claim of “breach of fiduciary duty” as follows:
Generally, the elements of a claim for breach of fiduciary duty are
(1) the existence of a fiduciary duty,
(2) breach of the duty,
(3) causation, and
(4) damages.
See, e.g. , ERI Consulting Eng'rs, Inc. v. Swinnea , 318 S.W.3d 867, 873 (Tex. 2010) ; see alsoJones v. Blume , 196 S.W.3d 440, 447 (Tex. App.—Dallas 2006, pet. denied). First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017)
A judge has a duty to ensure that a litigant’s constitutional and statutory rights are protected and respected throughout the litigation process. This includes ensuring that a litigant has access to the courts, is afforded due process, and is treated fairly and impartially.
Canon 1: Upholding the Integrity and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary is preserved. The provisions of this Code are to be construed and applied to further that objective.
Defendant, as an agent for the State, owed a duty of loyalty and good faith, strict integrity and accountability, and fair and honest dealing.
An agency creates a fiduciary relationship as a matter of law. Crim Truck Tractor Co. v. Navistar Int'l Transp. Corp.,823 S.W.2d 591 (Tex. 1992);
Historically, we have recognized that certain relationships give rise to a "fiduciary" duty as a matter of law. See, e.g., Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565, 160 S.W.2d 509, 513 (1942) (principal/agent); Johnson v. Peckham, 132 Tex. 148, 120 S.W.2d 786, 787 (1938) (partners). More recently, we have also categorized certain relationships as "special relationships," giving rise to a tort duty of good faith and fair dealing. See, e.g., Aranda v. Insurance Co. of N. Am., 748 S.W.2d 210, 212-13 (Tex. 1988); Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex. 1987).
Locke v. Thigpen,353 S.W.2d 249 (Tex.Civ.App. — Houston 1961), rev'd on other grounds,363 S.W.2d 247 (Tex. 1963);
"'A constructive trust arises where a conveyance is induced on the agreement of a fiduciary or confidant to hold in trust for a reconveyance or other purpose, where the fiduciary or confidential relationship is one upon which the grantor justifiably can and does rely and where the agreement is breached, since the breach of the agreement is an abuse of the confidence, and it is not necessary to establish such a trust to show fraud or intent not to perform the agreement when it was made. The tendency of the courts is to construe the term 'confidence' or 'confidential relationship' liberally in favor of the confider and against the confidant, for the purpose of raising a constructive trust on a violation or betrayal trayal thereof.'" Locke v. Thigpen, 353 S.W.2d 249, 252 (Tex. Civ. App. 1962)
Kinzbach Tool Co. v. Corbett-Wallace Corp.,138 Tex. 565, 160 S.W.2d 509 (1942); RESTATEMENT (SECOND) OF AGENCY Ch. 13 (1958); 3 TEX.JUR.3 D Agency § 113 (1980). A fiduciary owes its principal a high duty of good faith, fair dealing, honest performance, and strict accountability. Kinzbach Tool Co. v. Corbett-Wallace Corp., supra; Burdett v. Miller,957 F.2d 1375 (7th Cir. 1992); Crutcher-Rolfs-Cummings, Inc. v. Ballard,540 S.W.2d 380 (Tex.Civ.App. — Corpus Christi 1976, writ ref'd n.r.e.); Starr v. Ripley,265 S.W.2d 225 (Tex.Civ.App. — Austin 1954, no writ); RESTATEMENT (SECOND) OF AGENCY Ch. 13 introductory note; 3 TEX.JUR.3 D Agency § 113; 3 AM.JUR.2 D Agency § 210 (1986). The trial court so instructed the jury. Sassen v. Tanglegrove Townhouse, 877 S.W.2d 489, 492 (Tex. App. 1994)
The courts in Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565, (Tex. 1942) defined the duty of a fiduciary as follows:
1.— Fiduciary Relations — Words and Phrases.
Generally speaking the term "Fiduciary," contemplates fair dealing and good faith, rather than legal obligation, as the basis of a transaction, and includes the informal relations which exist whenever one party trusts and relies upon another, as well as technical fiduciary relations, and applies to any person who occupies a position of peculiar confidence towards another.
2. — Principal and Agent — Fiduciary Relations.
It is the duty of a fiduciary to deal openly and to make a full disclosure to the party with whom he stands in such relationship, and he must measure his conduct by high equitable standards, rather than by the standards required in dealings between ordinary parties. Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565, (Tex. 1942)
The courts further opined in Johnson v. Peckham, 132 Tex. 148, 152 (Tex. 1938) as follows:
When persons enter into fiduciary relations each consents, as a matter of law, to have his conduct towards the other measured by the standards of the finer loyalties exacted by courts of equity. That is a sound rule and should not be whittled down by exceptions. If the existence of strained relations should be suffered to work an exception, then a designing fiduciary could easily bring about such relations to set the stage for a sharp bargain. There is no suggestion in this record that Peckham did that thing, but mischief would result more often from engrafting exceptions upon the general rule than from a strict adherence thereto. Johnson v. Peckham, 132 Tex. 148, 152 (Tex. 1938)
Upon the swearing to the judicial oath, Defendant created a constructive trust as stipulated by the courts in Locke v. Thigpen, 353 S.W.2d 249, 252 (Tex. Civ. App. 1962) as follows:
"'A constructive trust arises where a conveyance is induced on the agreement of a fiduciary or confidant to hold in trust for a reconveyance or other purpose, where the fiduciary or confidential relationship is one upon which the grantor justifiably can and does rely and where the agreement is breached, since the breach of the agreement is an abuse of the confidence, and it is not necessary to establish such a trust to show fraud or intent not to perform the agreement when it was made. Locke v. Thigpen, 353 S.W.2d 249, 252 (Tex. Civ. App. 1962)
Defendant, in the instant case, acted with blatant disregard for his/her fiduciary duty toward Plaintiff. The courts spoke to the duty of the fiduciary in Burdett v. Miller, 957 F.2d 1375, 1381 (7th Cir. 1992) as follows:
A fiduciary duty is the duty of an agent to treat his principal with the utmost candor, rectitude, care, loyalty, and good faith — in fact to treat the principal as well as the agent would treat himself. Pohl v. National Benefits Consultants, Inc.,956 F.2d 126, 128 (7th Cir. 1992); Burdett v. Miller, 957 F.2d 1375, 1381 (7th Cir. 1992)
see also Douglas v. Aztec Petroleum Corp., 695 S.W.2d 312, 318 (Tex. App.--Tyler 1985, no writ) as follows:
“Breach of fiduciary duty is a tort. Crutcher-Rolfs-Cummings, Inc. v. Ballard, 540 S.W.2d 380 (Tex.Civ.App. — Corpus Christi 1976, writ ref'd n.r.e.); Russell v. Truitt, 554 S.W.2d 948 (Tex.Civ.App. — Fort Worth 1977, writ ref'd n.r.e.).” Douglas v. Aztec Petroleum Corp., 695 S.W.2d 312, 318 (Tex. App. 1985)
The courts have addressed the elements of a breach of fiduciary duty in Jones v. Blume, 196 S.W.3d 440, 447 (Tex. App. 2006) as follows:
The elements of a breach of fiduciary duty claim are:
(1) a fiduciary relationship between the plaintiff and defendant;
(2) the defendant must have breached his fiduciary duty to the plaintiff; and
(3) the defendant's breach must result in injury to the plaintiff or benefit to the defendant. See Punts v. Wilson,137 S.W.3d 889, 891 (Tex.App.-Texarkana 2004, no pet.).
A fiduciary relationship may be formal or informal. Fiduciary duties arise as a matter of law in certain formal relationships, including attorney-client and trustee relationships. Meyer v. Cathey,167 S.W.3d 327, 331 (Tex. 2005). Jones v. Blume, 196 S.W.3d 440, 447 (Tex. App. 2006)
Plaintiff is a citizen in this republic and, thereby, has a reasonable expectation of the equal protection of the laws. By refusing to perform a duty, solely because the person complained of is a public servant, has the effect of breaching the most basic tenants of a Republic so elegantly stipulated in the preamble to Texas Government Code 552.001 which reads as follows:
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 Criminal Consequences… 552.001 Texas Government Code
Defendant would have it that the people answer to the servant and only the master can be held to the rule of law. By the refusal of Defendant to perform an administrative duty, Plaintiff was disenfranchised from Plaintiff’s Constitution in violation of Texas Constitution Article 1 Section 19 which reads as follows:
Sec. 19. DEPRIVATION OF LIFE, LIBERTY, PROPERTY, ETC. BY 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.
Negligence per se is a tort concept recognized in Texas whereby the civil courts adopt a legislatively imposed standard of conduct as defining the conduct of a reasonably prudent person. Moughon v. Wolf, 576 S.W.2d 603, 604 (Tex. 1978).
Negligence per se is a tort concept whereby the civil courts adopt a legislatively imposed standard of conduct as defining the conduct of a reasonably prudent person. The unexcused violation of a statute constitutes negligence as a matter of law if such statute was designed to prevent injury to the class of persons to which the injured party belongs. Missouri P.R.R. Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex. 1977); Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587 (1947); Comment, Negligence Per Se and Excuse for a Statutory Violation in Texas, 5 St. Mary's L.J. 552 (1973). Section 52 of article 6701d has been recognized as just such a safety statute since it seeks to prevent property damage and personal injury by prohibiting driving on the left-hand side of the road. See, e.g., Phoenix Refining Co. v. Powell, 251 S.W.2d 892, 896 (Tex.Civ.App. San Antonio 1952, writ ref'd n.r.e.). Moughon v. Wolf, 576 S.W.2d 603, 604 (Tex. 1978)
In the instant case, the Texas Legislature specifically commanded the magistrate to act in a particular way by Texas Code of Criminal Procedure 15.09 supra. It was the intent of the Legislature, as evidenced by the clear language of the law, that Defendant had no discretion at this point in the process.
Where a public official fails to perform a duty said official is commanded by law to perform, the court must construe that the official acted with deliberate culpable intent per Texas Penal Code 6.03. DEFINITIONS OF CULPABLE MENTAL STATES
Sec. 6.03. DEFINITIONS OF CULPABLE MENTAL STATES. (a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.
(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.
or, at best, was negligent as to his/her duty.
The failure on the part of Defendant to perform a duty he was statutorily commanded to perform had the effect of denying Plaintiff in the full and free access to and enjoyment of the due course of the laws of the Sate of Texas in criminal violation of Texas Penal Code 39.03(supra). Said violation was the proximate cause of Plaintiff's injury.
The Texas Supreme Court has determined that the procedural due process protections provided under the Texas Constitution mirror those provided under the federal Constitution. See Univ. of Tex. Med. Sch. v. Than,901 S.W.2d 926, 929 (Tex. 1995) ("While the Texas Constitution is textually different in that it refers to `due course' rather than `due process,' we regard these terms as without meaningful distinction."). Although Texas state courts are not bound by federal due process jurisprudence, "we have traditionally followed contemporary federal due process interpretations of procedural due process issues." Id. Importantly, Texas courts interpreting procedural due process claims have applied the Mathews factors to determine whether due course of law was provided under the Texas Constitution James v. City, Houston, 138 S.W.3d 433, 439-40 (Tex. App. 2004)
Defendant swore on his/her oath s/he would uphold the laws of the State of Texas and protect the Constitution in contravention to Defendant’s sworn oath. After Defendant’s swearing on his/her oath, Defendant received compensation from state funds. A contract is not a contract until something of value changes hands and, in the instant case, Defendant collected payment from the state for services rendered, creating a contract. Generally, the term “contract” refers to an agreement between two or more persons that creates an obligation to do or not do a particular thing:
“A contract is recognized as an agreement between two or more persons that creates an obligation to do or not to do a particular thing. See Black's Law Dictionary 322 (6th ed. 1990). ” Frady v. May, 23 S.W.3d 558, 565 (Tex. App. 2000)
In the instant case, Defendant agreed to uphold the laws of the State of Texas and protect the constitution by the swearing to his/her oath of office.
The covenants of the above contract are express as they are contained in the Constitution and laws of the State of Texas, Defendant has sworn to uphold as a condition of employment. In the case of Wal-Mart v. Lopez, 93 S.W.3d 548, 557-58 (Tex. App. 2002) the courts ruled as follows:
An implied-in-fact contract "arises from the acts and conduct of the parties, it being implied from the facts and circumstances that there was a mutual intention to contract." Haws Garrett Gen. Contractors, Inc. v. Gorbett Bros. Welding Co., 480 S.W.2d 607, 609 (Tex. 1972). A meeting of the minds is an essential element of an implied-in-fact contract. Texas Ass'n of Counties County Gov't Risk Mgmt. Pool v. Matagorda County, 52 S.W.3d 128, 133 (Tex. 2000). In an express contract, mutual agreement is expressly stated; in an implied contract, mutual agreement must be inferred from the circumstances of the transaction. Buxani v. Nussbaum, 940 S.W.2d 350, 352 (Tex.App.-San Antonio 1997, no writ); T.O. Stanley Boot Co., 809 S.W.2d at 284. The court "must look to the conduct of the parties to determine the terms of the contract on which the minds of the parties met." Williford Energy Co. v. Submergible Cable Servs., Inc., 895 S.W.2d 379, 385 (Tex.App.-Amarillo 1994, no writ). The conduct and circumstances surrounding the transaction are to be viewed from a reasonable person's interpretation at that particular point in time. T.O. Stanley Boot Co., 809 S.W.2d at 284 (citing Haws Garrett Gen. Contractors, Inc., 480 S.W.2d at 609). Wal-Mart v. Lopez, 93 S.W.3d 548, 557-58 (Tex. App. 2002)
In the Restatement of Contracts (Second Edition) the concept of “third party beneficiary” is addressed as follows:
A third party beneficiary contract arises when two parties enter into an agreement for the benefit of a third person. Traditionally, the requirement of "privity" prevented the third party from enforcing a contract to which he was not a party. Gradually, courts eroded this requirement, and in some cases allowed third parties to enforce agreements made for their benefit. The first Restatement of Contracts fostered this development and sounded the death knell for the privity requirement by formally recognizing that certain third parties had independent rights in some contracts. Restatement of Contracts (Second Edition)
Here we anticipate a claim of judicial immunity. Judicial immunity was never contemplated by the Texas Legislature and there are no Texas statutes which address immunity. The term “immunity” only occurs in two local rules in Henderson County, otherwise, the word does not appear in Texas law. Officials routinely cite Texas Civil Practice and Remedies Code 104.001which reads in pertinent part as follows:
Sec. 104.001. STATE LIABILITY; PERSONS COVERED. In a cause of action based on conduct described in Section 104.002, the state shall indemnify the following persons, without regard to whether the persons performed their services for compensation, for actual damages, court costs, and attorney's fees adjudged against:
(1) an employee, a member of the governing board, or any other officer of a state agency, institution, or department;
It is the assertion and allegation of Plaintiff that Defendant perpetrated an “anticipatory breach” of his/her contract with the state, wherein Defendant swore on his/her to perform an administrative duty s/he was commanded to perform under Texas Code of Criminal Procedure 15.09 supra. Said duty is a duty over which Defendant had no discretion and, thereby, failed to act in accordance with the above-referenced employment contract with the state.
Defendant, by failing to act in accordance with his/her sworn oath, repudiated his/her contract with the state and acted in his/her personal capacity by refusing to perform the duty prescribed by Texas Code of Criminal Procedure 15.09 supra. By so doing, Defendant denied Plaintiff in the equal protection of the laws of the State of Texas, rendering Plaintiff a crime victim by the hand of Defendant.
"Repudiation consists in `such words or actions by a contracting party as indicate that he is not going to perform his contract in the future.' Samuel Williston, `Repudiation of Contracts,' Select Readings, Assoc. of American Law Schools 1080; 14 Harv.L.Rev. 317. See Moore v. Jenkins, 109 Tex. 461, 211 S.W. 975, 976. It is conduct which shows a fixed intention to abandon, renounce, and refuse to perform the contract. Kilgore v. Northwest Texas Baptist Educational Soc., 90 Tex. 139, 37 S.W. 598, 600; Burks v. Neutzler, Tex.Com.App., 2 S.W.2d 416, 418; Moore v. Middleton, Tex.Com.App., 12 S.W.2d 995, 997; . . ." Chavez v. Chavez, 577 S.W.2d 306, 307 (Tex. Civ. App. 1979)
Defendant, in the instant case, by refusing to perform a statutory duty over which Defendant had no discretion, repudiated his contract with the state and subjected himself to Quo Warranto removal from office under Texas Civil Practice and Remedies Code 66.01(2) which reads as follows:
Sec. 66.001. GROUNDS. An action in the nature of quo warranto is available if:
(2) a public officer does an act or allows an act that by law causes a forfeiture of his office;
Plaintiff moves the court to order Defendant to pay to Plaintiff, damages in the amount of $19,000.00.
Respectfully Submitted,
Respectfully,
Sign: ______________________________
Name: _____________________________
Address: __________________________________
City: _____________ ST: ________ Zip: _______
Email: __________________________
VERIFICATION
I, Name: __________________________, do swear and affirm that all statements made herein are true and accurate, in all respects, to the best of my knowledge.
Sign: ______________________________
Name: _____________________
Address: ____________________________
City: _____________ ST: ________ Zip: _______
Email: __________________________
The Person above, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to this document and acknowledged to me that he/she executed the same in his authorized capacity and that by his signature on this instrument who is the person who executed this instrument.
I certify under PENALTY OF PERJURY under the laws of this State that the foregoing paragraph is true and correct.
Witness my hand and official seal.
______________________________
NOTARY PUBLIC IN AND FOR Notary Seal
THE STATE OF TEXAS