IN THE NAME AND BY AUTHORITY OF
THE STATE OF TEXAS:
I, Randall Kelton, hereinafter referred to as "Complaint," under penalty of perjury, do state that I have personal knowledge I have good reason to believe and do believe based upon the following information:
Judge Fletcher, on the 21st day of June 2011, verbally ruled in open court that, since Complainant filed a disqualification that was not verified, that the opportunity to move for disqualification was waived and complainant could not file another.
A constitutional disqualification may be raised at any stage of the proceedings and cannot be waived [ Spigener v. Wallis, 80 S.W.3d 174, 180 (Tex. App.--Waco 2002, no pet.)]. A judge who is subject to disqualification is entirely without jurisdiction in the case, and any judgment the judge renders is void and without effect [ Rosell v. Central West Motor Stages, Inc., 89 S.W.3d 643, 650-651 (Tex. App.--Dallas 2002, pet. denied) ; see § 110A.03[4.
Under Tex. Code Crim. Proc. Ann. art. 30.01, a judge was disqualified from presiding over prosecution for a terroristic threat because the judge was the target of the threat; reversible error occurred because she performed the discretionary act of excusing jurors before recusing herself, as required by Tex. R. Civ. P. 18b(2)(a). Burkett v. State, 196 S.W.3d 892, 2006 Tex. App. LEXIS 5786 (Tex. App. Texarkana 2006).
Complainant filed criminal allegations with the Cherokee County Grand Jury naming Judge Fletcher, giving the judge an interest in preventing Complainant from testifying before the grand jury. Judge Fletcher, by ruling on his own disqualification acted in direct violation of Texas Rules of Civil Procedure Rule 18a(f):
Rule 18a Recusal and Disqualification of Judges
(f) Duties of the Respondent Judge; Failure to Comply.
(1) Responding to the Motion. --Regardless of whether the motion complies with this rule, the respondent judge, within three business days after the motion is filed, must either:
(A) sign and file with the clerk an order of recusal or disqualification; or
(B) sign and file with the clerk an order referring the motion to the regional presiding judge.
(2) Restrictions on Further Action.
(A) Motion Filed Before Evidence Offered at Trial. --If a motion is filed before evidence has been offered at trial, the respondent judge must take no further action in the case until the motion has been decided, except for good cause stated in writing or on the record.
(B) Motion Filed After Evidence Offered at Trial. --If a motion is filed after evidence has been offered at trial, the respondent judge may proceed, subject to stay by the regional presiding judge. (Emphasis added.)
The prescription above is not subject to the discretion of the judge. In this case, Judge Fletcher exercised an authority specifically denied him by the clear language of the law.
Upon receiving Complainants' motion to recuse, the trial judge had a mandatory duty under Tex. R. Civ. P. 18a to recuse himself or refer the motion to the presiding judge. The judge abused his discretion by determining that the motion was untimely and failing to refer it; therefore, Complainants were entitled to conditional mandamus relief directing the trial judge to comply with Rule 18a. In re House of Yahweh, 2009 Tex. App. LEXIS 1576 (Tex. App. Eastland Mar. 5 2009).
Judge Fletcher’s refusal to abide by the clearly worded statutory duty had the effect of subjecting Complainant to a malicious prosecution in direct violation of TxPC Section 39.03 (supra). (see Criminal Affidavit Section BB attached)
Therefore, I charge that heretofore, and before the making and filing of this complaint, on or before the 26th day of November 2011, in Cherokee County and State of Texas, Craig Fletcher did then and there unlawfully and willfully exert an authoirty not granted to him by the Legislature and in the proess denied Complainant in Complainant’s right to the due course of the laws of the State of Texas, in an act of Official Oppression as defined by Section 39.03 Texas Penal Code.
Notary Stamp
________________
Randall Kelton
113 S. Allen St.
Boyd, Tx 76023
5213 430 4140