Preview
Electronically Submitted
10/9/2018 5:28 PM
Hidalgo County Clerk
Accepted by: Ester Espinoza
CAUSE NO. CL-18-4704-G
WIMINGTON SAVINGS FUND SOCIETY § IN THE COUNTY COURT
FSB AS TRUSTEE OF STANWICH §
MORTGAGE LOAN TRUST A, §
Plaintiffs §
§
VS. § AT-LAW NO. 7
§
ELIZABETH HINOJOSA §
JOSE LUIS HINOJOSA §
AND ALL OCCUPANTS §
Defendants § HIDALGO COUNTY, TEXAS
MOTION TO RECUSE AND DISQUALIFY JUDGE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Juan Angel Guerra, hereinafter referred to as Movant, in
the above styled and numbered cause and files this their Motion to Recuse and
disqualify Judge, the Honorable Sergio Valdez.
I.
Background Facts
Movant hereby invokes Rule 18 (b) of the Texas Rules of Civil Procedure
and requests the recusal of Judge Sergio Valdez and invokes the Texas
Constitution, Article 5 §11. Movants submit that Judge Sergio Valdez refuses
to be fair and impartial in his court rulings against Movant, which is evident in
the manner which seems to be of an overzealous attitude. Movant also
invokes Texas Government Code, Chapter 74, and the Code of Judicial
Conduct. Judge Valdez is the duly elected Judge for the County Court At-Law
No. 7 of Hidalgo County, Texas.
II.
Reasons for Need of Recusal
Movant has undergone unfair treatment from the Judge and, inter alia,
that is the basis for the need of recusal. The following are the reasons:
1. Judge Sergio Valdez has taken a bias position and has vociferously
denounced the rights given to Movant by the State of Texas in that the
1
Electronically Submitted
10/9/2018 5:28 PM
Hidal o County CI
Accepted by: ster Espin
Honorable Judge Sergio Valdez has initiated an investigation against the
undersigned attorney.
2. From information and belief, Movant avers that said judge has received a
complaint against Movant. It is almost humanly impossible to separate the two
(2) cases in one mind. The judge would find it very difficult not to be
meditating on the compliant in his court against Movant’s attorney and the
case at bar.
III.
The Constitution of the State of Texas and the federal constitution
guarantee the right of substantive and procedural due process. That includes a
fair and impartial judiciary.
ARGUMENT AND AUTHORITES
A judge may be removed from a case for one of three reasons: (1) he is subject to
a statutory strike as an assigned judge, (2) he is constitutionally disqualified, or (3)he is
recused under rules promulgated by the Supreme CouIt. TeX. Const. Art. 5, § 11
(constitutional disqualifications); Gov't Code §74.053(d) (statutory strike); TRCP 18a—
18b In re Union Pac. Res. Co. 969 S.W. 2d 427, 428 (TeX. 1998).
A motion to challenge the trial judge seeks to remove the judge from the
case so another judge may be assigned to preside over the case.
The nonmovant may file an opposing or concurring statement to the
motion at any time before the motion is heard. TRCP 18a(b).
The challenged judge should not voluntarily participate in the recusal hearing
or in a mandamus proceeding regarding the recusal. Blanchard v. Kmeger; 916 S.W.
2d 15, (Tex. App.—Houston [ISt Dist] 1995, orig. proceeding). Active participation in
the recusal proceedings, such as hiring an attorney or filing a response, can lead to the
judge's recusal. Id.
When a motion to disqualify or recuse is filed, the trial judge has only
two options— grant the motion or refer the motion for a hearing before another
judge. Pumjam; 56 S.W. 3d at 672.
Electronically Submitted
10/9/2018 5:28 PM
Hidalgo County Clerk
Accepted by: Ester Espinoza
When a challenged judge grants a motion to recuse or disqualify, she must
sign an order to that effect and request that the presiding judge of the administrative
judicial district assign another judge to the case. TRCP 18a(c); Gov't Code §74.059(c)(3);
In RE Rio Grande Valley Gas Co., 987 S.W. 2d 167, 179 (Tex. App.-Corpus Christi
1999, orig. proceeding); see also McLeoad v. Harris, 582 S.W. 2d 772, 774 (Tex. 1979)
(interpreting predecessor to Gov't Code §74.059(c)(3).
When a challenged judge denies a motion to recuse or disqualify, she must ask
the presiding judge of the administrative judicial district to assign another judge to hear
the motion. TRCP 18a(d); In re Perritt, 992 S.W. 2d 444, (Tex. 1999); McLeod, 582 S.W.
2d at 775; Winfield, 846 S.W. 2d at 992; The trial judge cannot deny the motion
without referring the motion to the presiding judge for a hearing. In re Perritt, 992 S.W.
2d at 447. The challenged judge must send the presiding judge the order of referral, the
motion, and all opposing and concurring statements.
Once a motion to recuse has been filed, the challenged judge cannot transfer the
case to another district court to avoid recusal. In re PG&E Reata Energy, L.P., 4 S.W.
3d 897, (Tex. Civ. App.-Corpus Christi 1999, orig. proceeding.) (recusal motion
prevents challenged judge from taking any further action in case, including
consenting to transfer).
Once challenged, a judge cannot take any action in the case until the motion to
disqualify or recuse is resolved. TRCP 18a (c), (d). Any other order signed by the
challenged judge while the motion is pending is void. In re Rio Grande Valley, 967
S.W. 2d at 179; Brosseau v. Ranzau, 911 S.W. 2d 890. (Tex. Civ. App.-Beaumont
1995, no writ).
The party that filed the motion to recuse or disqualify is entitled to a hearing on
the motion. Gov't Code §74.059(c)(3); TRCP 18a(d); In re Rio Grande Valley, 987 S. W.
2d at 179; Winfield, 846 S.W. 2d at 922; see Gov't Code §74.0.59(c)(3); The hearing
affords the movant an opportunity to develop a record to support its motion. In re Rio
Grande Valley, 987 S.W. 2d at 179; Winfield, 846 S.W. 3d at 922.
All parties must receive notice of the hearing on a motion to recuse or
disqualify. TRCP 18a(d).
3
Electronically Submitted
10/9/2018 5:28 PM
Hidalgo County Clerk
Accepted by: Ester Espinoza
Once the trial judge declines to be recused or disqualified, the presiding judge of
the administrative judicial district must immediately set the motion for a hearing before
herself or another judge. TRCP 18a(d); CNA Ins. Co. v. Scheffev, 828 S.W. 2d 785, (Tex.
Civ. App.-Texarkana 1992, writ denied).
If the judge assigned to hear the motion to recuse or disqualify grants the motion,
the presiding judge must appoint another judge to bear the ease on the merits. District
Judges of Collin Ctv. v. Commissioner's Court of Collin Cty, 677 S.W. 2d 743, 745 (Tex.
App.-Dallas 1984, writ ref d n.r.e.). The phrase "another judge" in TRCP 18a(f) does not
exclude the judge assigned to hear the motion to recuse or disqualify.
The Preamble of the Code of Judicial Conduct sets up the principles that make
the foundation of our judicial system. It states as follows:
“PREAMBLE”
“Our legal system is based on the principal that an independent, fair and
competent judicial will interpret and apply the laws that govern us. The role of the
judiciary is central to American concepts of justice and the rule of law.”
The Laws Judge Leal is vehemently against the Pro Se litigants.
There is a requirement on the judges to comply with the law. The judge’s
refusing to conduct pro se equality.
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."
A requirement on the judge is found in Canon 3 which states as follows:
“B. Adjudicative Responsibilities.
(1.) A judge shall hear and decide matters assigned to the judge
except those in which disqualification is required or recusal is
appropriate.
(2) A judge should be faithful to the law and shall maintain
professional competence in it. A judge shall not be swayed by
partisan interest, public clamor, or fear of criticism."
Therefore, Judge Valdez has demonstrated that it is impossible for him to
follow the mandates of the law.
4
Electronically Submitted
10/9/2018 5:28 PM
Hidalgo County Clerk
Accepted by: Ester Espinoza
Also, there are two (2) other problems.
Canon 2 includes the following:
"(5) A judge shall perform judicial duties without bias or prejudice.
(6) A judge shall not, in the performance of judicial duties, by words or conduct
manifest bias or prejudice, including but not limited to bias or prejudice based upon
race, sex, religion, national origins disability, age, sexual orientation or socioeconomic
status, and shall not knowingly permit staff, court officials and other subject to the
judge's direction and control to do so.
Therefore, there is a very high probability that Judge Valdez would not be
able to overcome his persuasion and not allow that his attitudes not be applied
against Movant.
Canon 4 sets a standard that must be maintained at all times. It states as
follows: Canon 4 Conducting the Judge's Extra-Judicial Activities to
Minimize the Risk of Conflict With Judicial Obligations
-
A. Extra-Judicial Activities in General.
A. Judge shall conduct all of the judge's extrajudicial activities so
that they do not:
(1)Cast reasonable doubt on the judge's capacity to act
impartially as a judge; or
(2)Interfere with the proper performance of judicial duties."
Canon 8 specifies with specificity how those Canons are to be applied and it states the
following:
Canon 8 Construction and Terminology of the Code
"B. Terminology.
1. "Shall" or "shall not" denotes binding obligations the violation of which
can result in disciplinary action."
Therefore, Judge Valdez should be disqualified particularly in cases dealing with
attorneys.
WHEREFORE, the Movant prays that the judge recuse himself or, in the
alternative, set up an evidentiary hearing with another judge in order to
determine whether the judge should be recused and/ or disqualified.
Therefore, the hearing on this case set for this day is hereby continued.
Movant prays for any other relief, at law or in equity that he may be
justly entitled to receive.
5
Electronically Submitted
10/9/2018 5:28 PM
Hidalgo County Clerk
Accepted by: Ester Espinoza
Respectfully submitted,
LAW OFFICE OF
Juan Angel Guerra
1409 N. Stuart Place Road, Suite A
Harlingen, Texas 78552
956-428—1600
956—428—1601 fax
iuanangelguerra1983@2mail.com
BY:
Juan
[sz
Angel
M 24M M
Guerra
SB #08581320
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document
has been sent on this the 9TH day 0f October, 2018 to
Travis H. Gray
P. O. Box 181269
Dallas, Texas 75381
travis@j ackoboyle .com
/ S/ 4mm 24W W
Juan Angel Guerra
Preview
Electronically Submitted 10/9/2018 5:28 PM Hidalgo County Clerk Accepted by: Ester Espinoza CAUSE NO. CL-18-4704-G WIMINGTON SAVINGS FUND SOCIETY § IN THE COUNTY COURT FSB AS TRUSTEE OF STANWICH § MORTGAGE LOAN TRUST A, § Plaintiffs § § VS. § AT-LAW NO. 7 § ELIZABETH HINOJOSA § JOSE LUIS HINOJOSA § AND ALL OCCUPANTS § Defendants § HIDALGO COUNTY, TEXAS MOTION TO RECUSE AND DISQUALIFY JUDGE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Juan Angel Guerra, hereinafter referred to as Movant, in the above styled and numbered cause and files this their Motion to Recuse and disqualify Judge, the Honorable Sergio Valdez. I. Background Facts Movant hereby invokes Rule 18 (b) of the Texas Rules of Civil Procedure and requests the recusal of Judge Sergio Valdez and invokes the Texas Constitution, Article 5 §11. Movants submit that Judge Sergio Valdez refuses to be fair and impartial in his court rulings against Movant, which is evident in the manner which seems to be of an overzealous attitude. Movant also invokes Texas Government Code, Chapter 74, and the Code of Judicial Conduct. Judge Valdez is the duly elected Judge for the County Court At-Law No. 7 of Hidalgo County, Texas. II. Reasons for Need of Recusal Movant has undergone unfair treatment from the Judge and, inter alia, that is the basis for the need of recusal. The following are the reasons: 1. Judge Sergio Valdez has taken a bias position and has vociferously denounced the rights given to Movant by the State of Texas in that the 1 Electronically Submitted 10/9/2018 5:28 PM Hidal o County CI Accepted by: ster Espin Honorable Judge Sergio Valdez has initiated an investigation against the undersigned attorney. 2. From information and belief, Movant avers that said judge has received a complaint against Movant. It is almost humanly impossible to separate the two (2) cases in one mind. The judge would find it very difficult not to be meditating on the compliant in his court against Movant’s attorney and the case at bar. III. The Constitution of the State of Texas and the federal constitution guarantee the right of substantive and procedural due process. That includes a fair and impartial judiciary. ARGUMENT AND AUTHORITES A judge may be removed from a case for one of three reasons: (1) he is subject to a statutory strike as an assigned judge, (2) he is constitutionally disqualified, or (3)he is recused under rules promulgated by the Supreme CouIt. TeX. Const. Art. 5, § 11 (constitutional disqualifications); Gov't Code §74.053(d) (statutory strike); TRCP 18a— 18b In re Union Pac. Res. Co. 969 S.W. 2d 427, 428 (TeX. 1998). A motion to challenge the trial judge seeks to remove the judge from the case so another judge may be assigned to preside over the case. The nonmovant may file an opposing or concurring statement to the motion at any time before the motion is heard. TRCP 18a(b). The challenged judge should not voluntarily participate in the recusal hearing or in a mandamus proceeding regarding the recusal. Blanchard v. Kmeger; 916 S.W. 2d 15, (Tex. App.—Houston [ISt Dist] 1995, orig. proceeding). Active participation in the recusal proceedings, such as hiring an attorney or filing a response, can lead to the judge's recusal. Id. When a motion to disqualify or recuse is filed, the trial judge has only two options— grant the motion or refer the motion for a hearing before another judge. Pumjam; 56 S.W. 3d at 672. Electronically Submitted 10/9/2018 5:28 PM Hidalgo County Clerk Accepted by: Ester Espinoza When a challenged judge grants a motion to recuse or disqualify, she must sign an order to that effect and request that the presiding judge of the administrative judicial district assign another judge to the case. TRCP 18a(c); Gov't Code §74.059(c)(3); In RE Rio Grande Valley Gas Co., 987 S.W. 2d 167, 179 (Tex. App.-Corpus Christi 1999, orig. proceeding); see also McLeoad v. Harris, 582 S.W. 2d 772, 774 (Tex. 1979) (interpreting predecessor to Gov't Code §74.059(c)(3). When a challenged judge denies a motion to recuse or disqualify, she must ask the presiding judge of the administrative judicial district to assign another judge to hear the motion. TRCP 18a(d); In re Perritt, 992 S.W. 2d 444, (Tex. 1999); McLeod, 582 S.W. 2d at 775; Winfield, 846 S.W. 2d at 992; The trial judge cannot deny the motion without referring the motion to the presiding judge for a hearing. In re Perritt, 992 S.W. 2d at 447. The challenged judge must send the presiding judge the order of referral, the motion, and all opposing and concurring statements. Once a motion to recuse has been filed, the challenged judge cannot transfer the case to another district court to avoid recusal. In re PG&E Reata Energy, L.P., 4 S.W. 3d 897, (Tex. Civ. App.-Corpus Christi 1999, orig. proceeding.) (recusal motion prevents challenged judge from taking any further action in case, including consenting to transfer). Once challenged, a judge cannot take any action in the case until the motion to disqualify or recuse is resolved. TRCP 18a (c), (d). Any other order signed by the challenged judge while the motion is pending is void. In re Rio Grande Valley, 967 S.W. 2d at 179; Brosseau v. Ranzau, 911 S.W. 2d 890. (Tex. Civ. App.-Beaumont 1995, no writ). The party that filed the motion to recuse or disqualify is entitled to a hearing on the motion. Gov't Code §74.059(c)(3); TRCP 18a(d); In re Rio Grande Valley, 987 S. W. 2d at 179; Winfield, 846 S.W. 2d at 922; see Gov't Code §74.0.59(c)(3); The hearing affords the movant an opportunity to develop a record to support its motion. In re Rio Grande Valley, 987 S.W. 2d at 179; Winfield, 846 S.W. 3d at 922. All parties must receive notice of the hearing on a motion to recuse or disqualify. TRCP 18a(d). 3 Electronically Submitted 10/9/2018 5:28 PM Hidalgo County Clerk Accepted by: Ester Espinoza Once the trial judge declines to be recused or disqualified, the presiding judge of the administrative judicial district must immediately set the motion for a hearing before herself or another judge. TRCP 18a(d); CNA Ins. Co. v. Scheffev, 828 S.W. 2d 785, (Tex. Civ. App.-Texarkana 1992, writ denied). If the judge assigned to hear the motion to recuse or disqualify grants the motion, the presiding judge must appoint another judge to bear the ease on the merits. District Judges of Collin Ctv. v. Commissioner's Court of Collin Cty, 677 S.W. 2d 743, 745 (Tex. App.-Dallas 1984, writ ref d n.r.e.). The phrase "another judge" in TRCP 18a(f) does not exclude the judge assigned to hear the motion to recuse or disqualify. The Preamble of the Code of Judicial Conduct sets up the principles that make the foundation of our judicial system. It states as follows: “PREAMBLE” “Our legal system is based on the principal that an independent, fair and competent judicial will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law.” The Laws Judge Leal is vehemently against the Pro Se litigants. There is a requirement on the judges to comply with the law. The judge’s refusing to conduct pro se equality. 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." A requirement on the judge is found in Canon 3 which states as follows: “B. Adjudicative Responsibilities. (1.) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate. (2) A judge should be faithful to the law and shall maintain professional competence in it. A judge shall not be swayed by partisan interest, public clamor, or fear of criticism." Therefore, Judge Valdez has demonstrated that it is impossible for him to follow the mandates of the law. 4 Electronically Submitted 10/9/2018 5:28 PM Hidalgo County Clerk Accepted by: Ester Espinoza Also, there are two (2) other problems. Canon 2 includes the following: "(5) A judge shall perform judicial duties without bias or prejudice. (6) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origins disability, age, sexual orientation or socioeconomic status, and shall not knowingly permit staff, court officials and other subject to the judge's direction and control to do so. Therefore, there is a very high probability that Judge Valdez would not be able to overcome his persuasion and not allow that his attitudes not be applied against Movant. Canon 4 sets a standard that must be maintained at all times. It states as follows: Canon 4 Conducting the Judge's Extra-Judicial Activities to Minimize the Risk of Conflict With Judicial Obligations - A. Extra-Judicial Activities in General. A. Judge shall conduct all of the judge's extrajudicial activities so that they do not: (1)Cast reasonable doubt on the judge's capacity to act impartially as a judge; or (2)Interfere with the proper performance of judicial duties." Canon 8 specifies with specificity how those Canons are to be applied and it states the following: Canon 8 Construction and Terminology of the Code "B. Terminology. 1. "Shall" or "shall not" denotes binding obligations the violation of which can result in disciplinary action." Therefore, Judge Valdez should be disqualified particularly in cases dealing with attorneys. WHEREFORE, the Movant prays that the judge recuse himself or, in the alternative, set up an evidentiary hearing with another judge in order to determine whether the judge should be recused and/ or disqualified. Therefore, the hearing on this case set for this day is hereby continued. Movant prays for any other relief, at law or in equity that he may be justly entitled to receive. 5 Electronically Submitted 10/9/2018 5:28 PM Hidalgo County Clerk Accepted by: Ester Espinoza Respectfully submitted, LAW OFFICE OF Juan Angel Guerra 1409 N. Stuart Place Road, Suite A Harlingen, Texas 78552 956-428—1600 956—428—1601 fax iuanangelguerra1983@2mail.com BY: Juan [sz Angel M 24M M Guerra SB #08581320 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been sent on this the 9TH day 0f October, 2018 to Travis H. Gray P. O. Box 181269 Dallas, Texas 75381 travis@j ackoboyle .com / S/ 4mm 24W W Juan Angel Guerra