SEE AMEND BRF
FILED ON 5/13/15                                                   March 2, 2015


             No:03-14-00665-CV

               IN THE COURT OF APPEALS FOR
         THE THIRD JUDICIAL DISTRICT OF TEXAS
                         AT AUSTIN, TEXAS


                             ERIC DRAKE


                                   Plaintiff—Appellant
                                  v.



                     KASTL LAW FIRM P.C. ET AL            \xRECEIVED
                                                             MAR 0 2 2015
                                  Defendant-Appellee
                                                           THIRCI COURT QFAPPEMS
                                                           • JEFFREY niffl^


       ON APPEAL FROM THE 200th DISTRICT COURT
               TRAVIS COUNTY, AUSTIN, TEXAS
                   Trial Court No. D-l-GN-14-001215


          BREIF OF APPELLANT ERIC DRAKE


                                                             Eric Drake
                                                                    Pro-Se
                                                               Appellant
                                                         PO Box 833688
                                              Richardson, Texas 75083
                                                          214-477-9288



                   ORAL ARGUMENT REQUESTED




                                                                                   •
                 IDENTITY OF PARTIES AND COUNSEL


Plaintiff/Appellant/Petitioner

Eric Drake
Pro-Se
P.O. Box 833688
Richardson, Texas 75083
(214) 477-9288

Defendants/Appellee/Respondents

Seanna Willing
Scot Graydon
300West 15th Street, Ste 2
Austin, Texas 78701
512-475-4413


David Harris

Carl Ginsberg
300West 15™ Street, Ste 2
Austin, Texas 78701
Telephone: 512-475-4413

Kristina Kastl

Kastl Law P.C.
4144 N. Central Expressway
Ste 300, Dallas, Texas 75204
Telephone: 214-821-0230

Frank Waite

Vikki Ogden
411 Elm Street, Ste 500
Dallas, Texas 75202
Telephone: 214-653-7568
              STATEMENT REGARDING ORAL ARGUMENT


        Appellant has requested oral argument pursuant to the appeal filed
 herein. The Court should grant oral argument for the following reasons:
        a).    Oral argument would give the Court a more complete
 understanding of the facts presented in this appeal. See Tex. R. App. P.
 39.1(c). This case is comprised ofseveral issues: 1. Issues concerning if an
 order is obtained by fraud or perjury should it not be vacated. 2. Abuse of

 discretion by the trial court and failure of the trial court to follow TRCP

recusal procedure 18a and 18b. 3. If there is a pending recusal motion filed
by a party to a cause ofaction, whether or not a visiting judge can hear the
case and sign orders before the recusal is properly adjudicated and disposed
ofby the proper judge. 4. Whether Appellee Seanna Willing proved that the
Appellant Eric Drake had no reasonable probability of success against her
and ifMs. Willing immunity prevented the Appellant from suing her.
      b).     Oral argument would also allow the Court to better analyze the
legal issues presented inthis appeal. Oral argument would allow the Court to
hear from bothsides of these issues and articulation of the statutes.

      c).     This appeal would benefit from oral argument and significantly
aid the Court in deciding this case. See Tex. R. App. P. 38.1(e), 39.1(d).
                                      ii
                         TABLE OF CONTENTS


                                                                      Page

 IDENTITY OF PARTIES AND COUNSEL                                         i

 STATEMENT REGARDING ORAL ARGUMENT                                      ii

 TABLE OF CONTENTS                                                     Hi

 ISSUES PRESENTED                                                      iii

INDEX OF AUTHORITIES                                                   ix

STATEMENT OF FACTS                                                      6




                  ISSUES PRESENTED FOR REVIEW




                               ISSUE ONE


Whether or not the August 19, 2014 order signed by Judge Charles Ramsay
is valid, and whether or not Judge Ramsay should had recused himself from
hearing the August 19, 2014 hearing to declare the Appellant a vexatious
litigant.
                               ISSUE TWO


Whether or not Seanna Willing failed to prove that the Appellant could not
prevail against her pursuant to the evidence that she submitted to the trial
court on August 19, 2014. Trial Court abused its discretion by finding that
Appellant had no reasonable probability ofprevailing.
                                    •   •   •


                                    in
                                 ISSUE THREE


Whether or not Warren Vavra had the proper legal authority to appoint
Judge Charles Ramsay to rule on Seanna Willing August 19,2014 hearing.


                                  ISSUE FOUR


Whether or not Judge David Phillips and Judge Stephen Yelenosky orders of
recusals and referrals should be vacated.



                                  ISSUE FIVE


Whether or not the trial court complied with Chapter 11 of the Tex. Civ. Prac.
& Rem Code, Rule 18a and 18b of the Tex. R. Civ. Prac, Rule 18a and 18b
of the Texas R. Civ. Procedure and other state laws and statutes.

                                   ISSUE SIX


Whether or not the trial court abused its discretion when the court continued

to hear Appellees Seanna Willing Motion to Declare the Appellant as a
Vexatious Litigate in light of the fact that Judge Ramsay did not have the
authority or jurisdiction to preside over Appellees Willing motion to declare
him a vexatious litigant.

                                 ISSUE SEVEN


Whether or not the trial court abused its discretion in signing the August 19,
2014 order declaring the Appellant as a vexatious litigant was obtained by and
through fraud, deception and perjury by Scot Graydon an assistant attorney
general.


                                        vi
                               ISSUE EIGHT


Whether or not the trial court abused its discretion and erred when the court

continued to hear Appellees Seanna Willing Motion to Declare the
Appellant as a Vexatious Litigate even after Appellant objected to Judge
Ramsay of due process violations and violations under Chapter 11 of the
Texas Civil Prac. & Remedies Code.




                                ISSUE NINE


Whether or not the trial court abused its discretion in signing the August 19,
2014 order declaring Appellant vexatious because there was a pending
motion for recusal filed by the Appellant motion to recuse had not been
referred to the administrative law judge and ruled on as required by the Tex.
Rules of Procedure.


                                 ISSUE TEN


Whether or not the trial court abused its discretion in signing the August 19,
2014 order declaring Appellant vexatious because Appellee Willing's
motion to declare Drakeas a vexatious litigant was procedurally defective.

                              ISSUE ELEVEN


Whether or not the trial court erred and abused its discretion in not ruling on

AppelleeWilling's pleato jurisdiction, or dismissing Willing as a defendant,

and allowing Willing to file affirmative action when claiming immunity.
Issue One:


      The order signed by Judge Charles Ramsay is not valid. Appellant objected

      to Judge Ramasy appointment on the day of the hearing, thus he should

      have recused himself from hearing the August 19,2014 hearing               16


Issue Two:


      Appellee Seanna Willing failed to prove by and through evidence submitted

      to the trial court that was entered into evidence that the Appellant could not

      prevail against her at the August 19,2014 hearing                         19


Issue Three:


      Warren Vavra did not have the legal authority to appoint Judge Charles

      Ramsay to hear the August 19,2014 hearing                                 28


Issue Four:


      Judges David Phillips and Stephen Yelenosky orders of recusal and referral

      should be vacated                                                        30



Issue Five:


      The trial court failed to comply with Chapter 11 of the Tex. Civ. Prac. &

      Rem Code, Rule 18a and 18b of the Texas Rule of Civil Procedure, and

      other state laws and statutes                                            34



                                       vi
Issue Six:


      Trial court abused its discretion when the court continued to hear

      Appellees Seanna Willing Motion to Declare the Appellant as a
      Vexatious Litigate in light of the fact that Judge Ramsay did not have
      the authority or jurisdiction to preside over Appellees Willing motion
      to declare him a vexatious litigant                                52

Issue Seven:


      The August 19, 2014 order declaring the Appellant as a vexatious litigant

      was obtained by and through fraud, deception and perjury by Scot Graydon

      an assistant attorney general                                       54


Issue Eight:


      Trial court abused its discretion when the court continued to hear

      Appellees Seanna Willing Motion to Declare the Appellant as a
      Vexatious Litigate even after Appellant objected to Judge Ramsay of
      due process violations and violations under Chapter 11 of the Texas
      Civil Prac. & Remedies Code                                         61


Issue Nine:
      Trial court abused its discretion in signing the August 19, 2014 order
      declaring Appellant vexatious because the trial court district judges
      had not responded or acted on Appellees jurisdictional issues or
      Appellant's special exceptions prior to assigning Appellee Willing
     motion to declare Drake a vexatious litigant and prior to actually
      signing ofthe motion                                               64

                                      vii
Issue Ten:


     Trial court abused its discretion in signing the August 19, 2014 order
     declaring Appellant vexatious because Appellee Willing's motion to
     declare Drake as a vexatious litigant was procedurally defective .. 68


Issue Eleven:


     The trial court erred and abused its discretion in failing to rule on

     Appellee Willing's plea to jurisdiction, before allowing Willing to file

     affirmative action when claiming immunity. If the trial court accepted

     Willing's immumty, it should have dismissed Willing as a defendant.

     But Appellee Seanna Willing's alleged immunity did not apply... 73




STATEMENT OF THE CASE                                                      1

STATEMENT OF FACTS                                                        6

ARGUMENT                                                                  14

CONCLUSION                                                               82


CERTIFICATE OF SERVICE                                                    84


CERTIFICATE OF COMPLIANCE                                                 85

APPENDIX                                                                  86



                                   viii
                          INDEX OF AUTHORITIES



 Cases                                                          Page


Mitchell Energy Corp. v. Ashworth
       943 S.W.2d 436,438 (Tex. 1997)                        16, 17,18

In re Union Pacific Resources Co..
                                m


       969 S.W.2d 427,428 (Tex. 1998)                          17,46

Federal Sign v. Texas S. Univ..
       951 S.W.2d401,405 (Tex. 1997)                              75

In re Perritt.
       992 S.W.2d 444; 1999 Tex. Lexis 42 Tex. Sup. J. 574        18

IT-Dav.
       74 S.W.3d at 855                                           75


Tex. Educ. Agency v. Leeper.
       893 S.W.2d 432, 37Tex. Sup. Ct. J. 968 (Tex. 1994)         75

Printing Indus..
      600 S.W.2d at 265-66                                       75


Texas Workers' Compensation Comm'n v. Garcia,
      862 S.W.2d 61, 72 (Tex. App.-San Antonio 1993)             75



                                     IX
                       INDEX OF AUTHORITIES



Cases                                                             Page




Browning v. Prostok
     165 S.W.3d 336,346 (Tex. 2005)                                52



Austin Indep. Sch. Dist. v. Sierra Club,
      5 S.W.2d 878, 881 (Tex. 1973)                                52



Easterline v. Bean,
        121 Tex. 327,49 S.W.2d427,429 (1932)                       53



Mapco. Inc. v. Forrest
     795 S.W.2d 700, 703 (Tex. 1990)                               53



Jeter v. McGraw.
        218 S.W.3d 850, 853 (Tex. App.-Beaumont 2007, pet. denied) 53




Tex. Ass'n of Bus, v. Tex. Air Control Bd..
        852 S.W.2d440,445 (Tex. 1993)                              53
                         INDEX OF AUTHORITIES



Cases                                                            Page




Fed. Underwriters Exch. v. Pugh.
      141 Tex. 539,174 S.W.2d 598, 600 (1943)                     53



In the Guardianship of Erickson.
       208 S.W.3d 737, 740 (Tex. App.-Texarkana 2006, orig. proceeding)
                                                                 53




In the Estate of Bean,
        120 S.W.3d 914,919 (Tex. App.-Texarkana 2003)            53




Devoil v. State of Texas.
        155 S.W.3d 498; 2004 Tex.App. Lexis 10473             19, 61




Drake v. Andrews.
                                                    14,20,23,26, 51




                                   XI
                       INDEX OF AUTHORITIES



Cases                                                                Page




In re Complaint on Judicial Misconduct.
       U.S. Court of Appeal for the 9th Cir., 647 F.3d 1181; 2011 U.S. Lexis
        10438                                                         22




In re Norman.
        S.W.3d 858, 860 (Tex. App.- Houston [14th Dist.] 2006, orig.
        proceeding)                                            35




Norman.
        191 S.W.3d at 861                                          38,41




Brousseau v. Ranzau.
        911 S.W.2d at 892                                             38




Greenberg. Benson. Fisk & Fielder v. Howell.
     685 S.W.2d 694, 695 (Tex. App.~ Dallasl984)                     47




                                    xn
                        INDEX OF AUTHORITIES



Cases                                                                 Page




Texas State Employees Umon/CWA Local 6184 v. Texas Workforce.
      No. 3-99-171-CV, slip op. at 5                                    75


Lamberti v. Tschoepe.
        776 S.W.2d 651, 652 (Tex. App.-Dallas 1989, orig. proceeding) . 48


McLeod v. Harris.
        S.W.2d at 773                                             28,40,52




In re Kiefer.
        No. 05-10-00452-CV, 2010 Tex. App. LEXIS 4268, 2010 WL
        2220588                                          41,47


In re Healthmark Partners. L.L.C..
        14-04-00743-CV, 2004 Tex. App. LEXIS 7636, 2004 WL 1899953,
        (Tex. App.—Houston [14th Dist.] Aug. 26,2004, orig     41



Univ. of Tex. Med. Sch. at Houston v. Than.
        901 S.W.2d 926,929, 38 Tex. Sup. Ct. J. 910 (Tex. 1995)        75




                                     xui
                       INDEX OF AUTHORITIES



Cases                                                               Page




In re Rio Grande Valley Gas Co..
        987 S.W.2d 167, 179-80 (Tex. App.—Corpus Christi 1999, orig.
        proceeding)                                          41,50


Arnold v. State.
        853 S.W.2d 543, 544 (Tex. Crim. App. 1993                      41



Ex parte Sinegar.
      324 S.W.3d 578,2010 WL 4320399, (Tex. Crim. App. 2010           41



In re Prudential.
        148 S.W.3d at 135                                             42




Bruno v. State.
        916 S.W.2d 4, 7 (Tex. App.—Houston [14th Dist] 1995, no pet). 43



Goss v. Lopez.
      419 U.S. 565, 574,95 S. Ct. 729, 736,42 L. Ed. 2d 725 (1975)) . 75


State v. Benavides.
        772 S.W.2d 271,273 (Tex. App.—Corpus Christi 1989)           75


                                    1VX
                          INDEX OF AUTHORITIES



Cases                                                      Page




In re Richard Castillo.
        1998 Tex. App. El Paso, Lexis 2473                   43



Douglas v. American Title Co..
     (App. [1st Dist]), 2006,196 S.W.3d 876               14,26



Mullins v. Ortiz.
        (App. [lOthDist], 2009, WL 2264347                  14




Martin v. Svkes.
        25 Tex. Supp., 198                                  55




McMurray v. McMurrav.
        67 Tex. 665; 4 S.W.357; 1887 Tex. Lexis 943         56




Heath et al v. Lavne et al.
        Supreme Court, 62 Tex. 686; 1884 Tex. Lexis 312     56



                                    vx
                        INDEX OF AUTHORITIES



Cases                                                     Page




Lee v. Killian.
        761 S.W.2d 139; 1988 Tex. App. [2nd] Lexis 3173   56



Green v. Chandler.
     25 Tex. 148                                          57




History Co. v. Flint 4 WiUson.
        App. §224,4 Tex. Civ. Cas. 364,15 S.W. 912        57



Drinkard v. Ingram.
        2 Tex. 650, 73 Am. Dec. 250                       57




Johnston v. Loop.
        2 Tex. 331                                        57




Bankers v. Calhoun.
        (Tex. Civ. App.) 209 S.W. 826                     57




                                      xvi
                        INDEX OF AUTHORITIES



Cases                                                             Page




Walling v. Metcalfe.
      863 S.W.2d 56, 57,37 Tex. Sup. Ct. J. 18 (Tex. 1993)          56


Stanfield v. O'Bovle.
        462 S.W.2d 270,272 (Tex. 1971)                              58



Stone v. Williams.
        358 S.W.2d 151 (Tex. Civ. App.—Houston 1962)                58



Stephens v. Turtle Creek Apartments. Ltd..
      875 S.W.2d 25, 26 (Tex. App—Houston [14th Dist.] 1994, no writ).
                                                                    69




Texas Dep't of Parks & Wildlife v. Miranda.
      331 S.W. 3d 217,226 (Tex. 2004)                                65



University of Tex. V. Poindexter.
         306 S.W.3d 798, 806-07 (Tex. App.—Austin 2009, no pet.).... 65




                                    xvn
Cases                                                               Page


Cameron v. Children's Hosp. Med.. Ctr..
     131 F.3d 1167,1170(6thCir. 1997))                               65


Martin v. National Instruments Corp..
      Court of Appeals, [3rd Dist.] 2013 Tex. App. Lexis 7021        65



Venable v. Sherbet.
        Court of Appeals, [5th Dist.] 365 S.W.3d 359; 2010 Tex. App. Lexis
        9083                                                         66



City of Austin v. Savetownlake.Org.»x

      Court of Appeals of Texas, [3rd Dist.] Austin 2008 Tex. App. Lexis
        6471                                                         66



Amir-Sharif v. Quick Trip Corp..
      (App. [5th Dist]) 2013,416 S.W.3d 914               25, 26, 51, 62



In re Guilbot
        2009 (Tex. App.—Houston [14th Dist.] no pet)             32,43



Wanzer v. Garcia.
      2009, (Tex. App. [4th Dist] 299 S.W.3d 821                     14




                                   XVIU
City of Friendswood v. Registered Nurse Care Home.
      965 S.W.2d 705, 707 (Tex. App.-Houston [1st Dist] 1998)... 75

Brown v. Ke Ping Xie.
     260 S.W.3d 118, 122 (Tex. App.-Houston [1st Dist] 2008, pet.
     denied)                                              75


STATUTES



Tex. R. Civ. P., 18a and 18b         xix, xxii, 3, 15,29, 30, 34, 35, 37, 38,
39,40,43,44,45,47,48,49


Article V, Section 11 ofthe Texas Constitution                           22


Tex. Gov't Code Ann. § 74.053(b) (1998)              17,18, 28,29,40, 51


Chapter 11 ofthe Tex. Civ. Prac. & Rem. Code .. xix, xxii, 11, 16, 18,20
23,24,27,28,29, 30, 31, 32, 33, 34, 35,36,37, 38, 39, 58


Tex. Gov't Code Ann. § 25.00255(f)                                       37


The Uniform Declaratory Judgment Act (UDJA)                              76


U.S. CONST, amend. XIV                                                  76


TEX. CONST. Art. I, § 19                                                75


42 U.S.C. 1983                                                          73


                                     ixx
TO THE HONORABLE COURT OF APPEALS:




      Now comes, Eric Drake (Drake), Appellant, and files this his

Appellant's Brief and would show:

      There is only one volume of Clerk's Record in this appeal. Appellant

shall cite to the Clerk's Record as (CR) followed by the number of the

page(s) assigned by the Clerk. In addition, Appellant shall cite to the

Recorders Record as (RR) followed by the number of the page(s) assigned

by the Clerk.




                                    xx
                          APPELLANT'S BRIEF



To the Honorable Justices of the Third Court of Appeals:


      Appellant, Eric Drake ("Drake"), submits his Appellant's Brief.


                      STATEMENT OF THE CASE



TO THE HONORABLE JUSTICES OF SAID COURT:


      Appellant filed suit against Kastl Law Firm, Carl Ginsberg, Seanna

Willings, and Vikki Ogden alleging the following: Against Kastl Law Firm:

conspiracy, malpractice, common law fraud, fraud by nondisclosure,

negligent misrepresentation, breach of contract, breach of standard of care,

violations of the DTPA, and Unjust Enrichment. Appellant alleged against

Vikki Ogden the following: Breach of Standard of Care, Conspiracy,

Negligent Misrepresentation, and Fraud by Nondisclosure and Common-

Law fraud. Appellant requested injunctive and declaratory relief form Carl

Ginsberg, Court Reporters Certification Board, and Seanna Willings.

      The trial court judges conspired together to deny Appellant Motion to

Compel. Appellant filed a motion to recuse all of the judges because he

believed that there was no possibility in obtaining a fair hearing by any of

                                       1
the trial court district judges. Drake filed a motion for nonsuit to escape the

emblematically thugs in black robes who have used their judicial powers to

rule in favor for white attorneys or Austin's AG in Drake suit. Appellee

Willing filed a motion to declare Appellant a vexatious litigant. Appellant

arrived at the Travis County court believing that his case was nonsuited to

obtain a copy of the document only to discover that Seanna Willing

demanded a hearing on their motion to declare Drake as a vexatious litigant.

      Warren Vavra appointed a visiting judge (Judge Strauss) whom the

Appellant objected to and then appointed another visiting judge (Charles

Ramsay) whom the Appellant likewise objected to but Judge Ramsay

refused to recuse himself and heard Seanna Willings motion.

      On August 19, 2014, even though Appellant Drake objected to

Ramsay's he continued to preside over Seanna Willing's wrongful actions to

declare Appellant Drake as a vexatious litigate. Judge Charles Ramsay does

not qualify as a retired judge but as a former judge. His appointment was in

error because none of the judges that the Appellant recused had acted on

their recusals or referrals by the time Ramsay was appointed and ruled.

      Appellant filed a motion to recuse all of the district judges in Travis

County because ofunfairness that he received when three judges conspired
together to have an order signed by one of the defendants dismissing his

motion to compel hearing on August 7, 2014. None of the judges responded

to Appellant's motion to recuse, they did not recuse or refer.

      On August 19, 2014 a district judge signed a referral, pursuant to

Drake's Motion to Recuse, but it came too late after Judge Ramsay had been

wrongfully appointed to hear Appellees motion to declare Appellant as a

vexatious litigate and had ruled on the motion. Defendant's motions to quash

depositions and subpoenas to testify at the hearing were not ruled on.

Appellant has a right to have witnesses at Willing's hearing to declare him

vexatious. Ramsay violated Drake's due process rights, and he did so

knowingly because Drake informed Ramsay ofthese violations.

      Trial court district judges and Ramsay violated Tex. R. Civ. P. 18a

and 18b, and Chapter 11 of the Texas Civ. Prac. Rem. & Code. Judge

Ramsay granted Appellee Motion to Declare Appellant as a vexatious

litigate in light of all of the aforementioned violations, and Signed and Enter

the Order without having a hearing on Drake's motion to recuse, or

defendant's motions to transfer or having a ruling on the motions to transfer,

or defendant's motion to quash or without having a hearing on defendant's

motion to transfer, without having authority to hear Appellees motion
because he was not properly appointed or assigned, did not have the right to

refuse Drake's objection of his presiding and hearing Appellees Motion to

Declare Appellant as a vexatious litigant.

      On August 19, 2014, after an evidentiary hearing during which

Appellant was prohibited from securing the witnesses he had subpoenaed,

and in light of the fact that Appellee Seanna Willing did not submit to the

trial court sufficient evidence which would have proved that there was not a

reasonable probability that Appellant would not have been successful against

herself and each defendant in Drake's suit, being that Appellant was asking

for an injunction and declaratory judgment against Appellee Willing and

Ginsberg, and Appellee Seanna Willing failed to prove that the Appellant

would not be successful against her. Scot Graydon only offered hearsay

evidence to the trial court. Judge Ramsay wrongfully granted Appellees

Seanna Willing Motion to Declared Appellant as a Vexatious Litigate.

      On September 15, 2014, Appellant filed a Mandamus with this Court,

but the Court denied Drake's mandamus wrongfully. Appellant then filed a

motion for rehearing and a motion to recuse two of the justices on

September 26.2014. This Court also overruled those motions wrongfully.

Appellant filed a Mandamus with the Texas Supreme Court, however, the


                                      4
Supreme Court of Texas would not accept Appellant's mandamus for the

reason that he had not obtained permission with the local administrative

judge. Appellant attempted to obtain permission but Judge Lora Livingston,

who is the Travis County Local Administrative Judge refused to respond to

the Appellant's requests. Judges Charles Ramsay and Lora Livingston and

other trial court judges in Travis County will become defendants in an

upcoming federal lawsuit. Moreover, no administrative judge ruled on the

"late" referrals or recusals filed by one district judge and one county judge.

This case has been a clear violation of the Appellant's rights and of Texas

law, due process, the Texas Constitution, and federal laws.
                                      n.
                            Statement of Facts


A.     Pre-Trial History of this litigation.


Brief History of Events Prior to Filing Suit in Travis County:


     A. On December 20, 2013, Appellant filed suit against Kastl Law PC,

       Kristina Kastl, (the owner of Kastl Law) and Vikki Ogden. Appellant

       alleged a malpractice claim against Kastl Law and Kristina Kastl and

       that Vikki Ogden, court reporter for the County Court of Law Number

       5, conspired with Kastl to change a transcript where Kastl perjured

       herself under oath several times, thus putting her law license at risk.

       Appellant filed discovery seeking to depose Kristina Kastl, and she

       filed a motion to quash. Appellant filed a motion to compel January

       21, 2014. Judge Ginsberg canceled Appellant's motion to compel

       without cause on January 3, 2014. However, after the judge dismissed

       the case an order appeared in the file stating, "the motion was filed by

       submission," but it wasn't because Appellant had secured a court date

       for the hearing. Thereafter, the judge somehow finds an old order and

       declares Appellant as a vexatious litigate without a hearing,

       demanding that Appellant obtain permission. Judge Carl Ginsberg
     finally dismisses Appellant lawsuit on March 26, 2014 and deemed

     Appellant as a vexatious litigate and delivered an order to the clerks at

     the Dallas County courts. However, judge Ginsberg's order came too

     late and is considered moot because Appellant took immediate action

     to preserve his suit against Kastl and Ogden by filing a motion for

     nonsuit.


Filing Suit in Travis County;


  B. On April 28, 2014, Appellant filed suit in Travis County against

     several defendants, some of which he filed against in Dallas County

     and they are: Judge Carl Ginsberg, Kristina Kastl, Kastl Law firm,

     Vikki Ogden, Court Reporters, and Seanna Willing. Again, Appellant

     moved forward with discovery and the defendants (each and every

     one of the defendants) filed motions to quash, motion to transfer, and

     notices to the trial court that Appellant was an alleged vexatious

     litigate.

  C. On June 17,2014, Defendant Carl Ginsberg files a motion to transfer

     and a motion to declare Appellant as a vexatious litigate.

  D. On July 3, 2014, Defendant Vikki Ogden filed a motion to transfer

     and notice ofvexatious litigate order.
E. On July 11, 2014, Defendant Kastl Law PC filed a motion to transfer

   and notice of vexatious litigate order.

F. On July 15, 2014, Defendant Carl Ginsberg filed a motion to quash

   deposition and protection.

G. On July 16,2014, Defendant Kastl filed a motion to quash deposition

   and protection.

H. On July 16,2014, Appellant filed a motion to continue to obtain limit

   discovery to properly respond to defendant's motions to transfer.

I. On July 16,2014, Appellant filed a motion for evidentiary hearing.

J. On July 17, 2014, Defendant Vikki Ogden filed a motion to quash

   deposition.

K. On July 24, 2014, Appellant filed a motion to compel to try and

   obtain limited discovery in the Travis County lawsuit. Appellant set a

  hearing on matter and on August 7, 2014, Appellant appeared in

  Travis County for the hearing. Assistant attorney general Scot

  Graydon quarterbacked getting an order signed to deny the

  Appellant's motion to compel that Kastl had presented to the trial

  court. Assistant attorney general Scot Graydon instructed Kastl's

  employee to get the order signed by judge Orlinda Naranjo while


                                       8
   Appellant was waiting in judge Amy Meachum's court for his motion

   to compel to be heard. Thereafter judge Tim Sulak advised Appellant

   that he couldn't hear his motion to compel because of an order that

   was just signed.

L. On August 7, 2014, Appellant filed a motion to recuse all of the

   district judges as a result of judges Meachum, Sulak and Naranjo's

   behavior, Appellant understood that it would be impossible to obtain

   an impartial hearing or trial when judges conspire together to defeat a

  motion. This action by the district judges was similar to judge

  Ginsberg actions in Dallas County, dismissing his motion to compel

  without a hearing.

M.On August 19, 2014, Appellant was at the court to get a copy of an

  order of his motion for nonsuit. To Appellant's surprise, Appellee

  Willing motion to declare him as a vexatious litigate was still going to

  be heard because Scot Graydon demanded it, though the judges

  opinion that the lawsuit was dismissed. Appellant objected to the

  assignment of judges, and objected to the proceeding but the trial

  court moved forward with the hearing. During the hearing, Scot

  Graydon lied to the trial court claiming that he had conference with
Appellant regarding his motion to declare him as a vexatious litigant.

But Scot Graydon did not confer with Appellant and violated local

rules. Ramsay continued to hear the motion in light of the fact that

proper procedure had not been observed. After Appellant filed his

motion to recuse, even if the recusal is defective, it must be referred or

the judge must recuse. The judge cannot do nothing. Yet this is what

all of he judges did in Travis County—nothing. On August 19, 2014,

a district judge filed into the trial court's record a referral and a

County judge a recusal, but these orders came too late and was

defective. Judges filing a recusal and referral after the Ramsay had

been assigned will not cure the blatant disregard for proper procedure

and ethics by the judges in Travis County. Moreover, the defendant's

motions to transfer had not been ruled on or decided at the time the

Ramsay ruled on Appellee Willing motion to declare Appellant as a

vexatious litigant. The defendant's motions to quash had not been

ruled on or decided at the time the Ramsay ruled on Appellee Willing

motion. The defendant's motions in objection to jurisdiction or plea to

jurisdiction had not been ruled on or decided at the time the Ramsay

ruled on Appellee Willing motion to declare Appellant as a vexatious


                                   10
      litigant. Ramsay could not had been properly assigned because the

      court administrator, Warren Vavra has no authority to assign judges,

      but that authority comes from the administrative law judge. Warren

      Vavra is not a judge. Furthermore, the judges the Appellant recused

      had to act within three (3) days as the Tex. R. Civ. P. Appellant filed

      his motion to recuse on August 7, 2014 and there was no entry in the

      record of a referral or recusal of any of the judges on by mid-

      afternoon on August 19, 2014, until the Appellant argued that the

      assignment ofthe Ramsay was improper because the judges had to act

      on Appellant's motion to recuse. Appellant obtained a certified copy

      of the docket sheet to make sure of the record. Ramsay assignment

      was during the period when no judge had acted on Appellant's motion

      to recuse, thus Ramsay had no authority or jurisdiction to hear the

      Appellee Willing motion to declare the Appellant as a vexatious

      litigant. Thus, Ramsay order signed on August 19, 2014 is therefore

      void and should be vacated.

B.    Post Judgment.


      On August 19, 2014, the trial court signed an order in this matter in

favor ofAppellee. Appellant filed his notice of appeal on September 18,


                                    11
2014 but that document disappeared from the trial court's records. Appellant

properly and timely filed his notice for appeal on September 18, 2014,

however, since his September 18,2014 notice of appeal disappeared and his

September 19, 2014 notice of appeal that he sent by U.S. Mail disappeared

Drake was compelled to filed yet another notice of appeal on October 19,

2014. Appellant believes that someone at Travis County is guilty of federal

violations of mail tampering, interstate conspiracy, and other federal

violations.


      On September 15, 2014 Appellant filed his Petition for Writ of

Mandamus. The third court of appeals denied the writ in two days. Appellant

filed a Motion for rehearing and Motion to Recuse two of the justices on

September 26, 2014. Those motions were overruled by the third Court of

appeals. On October 15, 2014 the Appellant filed his Petition for Writ of

Mandamus with the Texas Supreme Court, but the court refused to file the

writ because Appellant had not obtained permission from the administrative

law judge, although Drake tried aggressively to obtain permission. The

result will be a lawsuit against many judges in Travis County, 3rd Court

Appeals justices, newly elected governor, federal judges, and all defendants

in the Travis County original suit, Tex. assist attorney generals and others.


                                      12
                  STATEMENT OF JURISDICTION




     This Court has jurisdiction over this matter pursuant to section 22.221
of the Texas Government Code. TEX. GOV'T CODE ANN. § 22.221
(Vernon 2004).




                                    13
                                           HI.
                                   ARGUMENT


   A.      Standard of Review
           Chapter 11—Texas Civil Practice & Remedies Code.


        Court of Appeals review trial court's determination of vexatious

litigant as abuse of discretion. Wanzer v. Garcia (App. [4th Dist.]) 2009,299

S.W.3d 821. Douglas v. American Title Co. (App. [1st Dist], 2006, 196

S.W.3d 876. Mullins v. Ortiz, (App. [10th Dist]), 2009, WL 2264347.

        Pursuant to Tex. Civ. Prac. & Rem. Code § 11.054, a court may find a

"plaintiff' as a vexatious litigant if the defendant shows in a seven-year

period immediately preceding the date the defendant makes the motion

under Section 11.051, that plaintiff has commenced, prosecuted, or

maintained in propria persona at least five litigations other than in a small

claims court that have been finally determined adversely to the plaintiff.

However, a defendant must first satisfy the requirement in section 11.054 of

Chapter 11 of the Tex. Civ. Prac. & Rem. Code; by showing there is not a

reasonable probability that the plaintiff will prevail in the litigation. In re

Douglas, Court of Appeals of Tx., [First Dist] Houston, 333 S.W.3d 273;

2010 Tex. App. Lexis 7338; Drake v. Andrews.



                                      14
      If a party is claiming immunity, as in Appellee Seanna Willing case,

that immunity is not absolute; not even forjudges.

      According to the Supreme Court, a former judge, who is not a retired

judge, is a judge who has not vested under the state judicial retirement

system when she left office.

      A trial court abuses its discretion if it acts without reference to any

guiding rules or principles, that is, if the act is arbitrary or unreasonable.

Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire V. Cummings, 134

S.W.3d 835, 838-39 (Tex. 2004). A trial court also abuses its discretion by

ruling without supporting evidence. Ford Motor Co. v. Garcia, 363 S.W.3d

573, 578 (Tex. 2012).



B.    Standard of Review.
      Rule 18a and 18b—Texas Rules of Civil Practice


      The denial of a motion to recuse is reviewed under an abuse of

discretion standard. See Tex. R. Civ. P. 18a(f). The standards are set by the

Supreme Court of Texas in Dolgencorp Tex. Inc., v. Lerma, 288 S.W. 3d

922,926 (Tex. 2009).




                                     15
D.    Issue One:

      The order signed by Judge Charles Ramsay is not valid. Appellant
      objected to Judge Ramasy appointment on the day of the hearing,
      thus he should have recused himself from hearing the August 19,
      2014 hearing.


      On August 19, 2014 Appellant objected to Judge Strauss who was

appointed to hear Appellee Willing's motion to declare Appellant as a

vexatious litigant (RR: Vol 1, P: 5, L: 2-11). Thereafter, Warren Vavra,

who had no authority to assign judges, assigned yet again another judge,

[Charles Ramsay] to hear Appellee Willing's motion to declare Appellant as

a vexatious litigant. Drake also objected to Judge Ramsay on the record

(RR: Vol 3 of 4, P: 10, L: 14-25; P: 11, L: 1—25; P: 12, L: 1—23).

      Appellant objection to Ramsay before he began presiding over

Willing's motion to declare Appellant as a vexatious litigate. Judge Ramsay

chose to continue to preside over the August 19,2014 motion hearing, rather

than recuse himself (RR: Vol 3 of 4, P: 15, L: 2-3). Moreover, Judge

Ramsay is not considered a "retired judge." A "retired" judge is a judge

receiving an annuity under the Texas Judicial Retirement System. See

Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 438 (Tex. 1997). To

receive such an annuity, a judge must meet requirements about either the

length of service or service plus age. Id. Judge Ramsay is considered as a

                                     16
former judge. According to the Supreme Court, a former judge, is a judge

who has not vested under the state judicial retirement system when she left

office. See Mitchell Energy, 943 S.W.2d at 438-39. Any later-acquired status

will not remove the judge from the category of former judges, i.e, those who

may be removed by objection of either party under Section 74.053(d). Id.

      Judge Ramsay was disqualified to proceed over Willing's motion to

declare Appellant vexatious for all the reasons asserted in this brief.

Appellant may raise Ramsay's qualifications for the first time on appeal. In

re DC. Jr., 2010 WL 3718564 (Tex.App.—Amarillo 2010, no pet).

      Under the Tex. R. Civ. P. a former judge can be objected to as many

times as a party desires. When the Appellant objected to Judge Ramsay and

he failed to recuse himself or remove himself from presiding over the

Appellees motion to declare the Appellant as a vexatious litigant, the order

signed on August 19, 2014 is void and should be vacated. (CR: Vol. 1 of 1,

P: 547—555). Moreover, the trial court erred in that the Appellant received

no prior notice of Judge Ramsay's appointment before the hearing date.

     When a proper objection under section 74.053 is filed, but the

objectionable judge refuses to remove himself from the case, the objecting

party is entitled to appellate relief. See In re Union Pacific Resources Co.,


                                      17
969 S.W.2d 427, 428 (Tex. 1998) (citing Mitchell Energy Corp. v.

Ashworth, 943 S.W.2d 436,440-41; Fry v. Tucker, 146 Tex. 18,202 S.W.2d

218,221(1947)).

      Judge Ramsay, who qualifies as an "former judge" was objected to

before he began to hear the Appellees Motion to declare Appellant as a

vexatious litigate, as such he should have recuse himself or removed himself

from presiding over the motion on August 19, 2014. In re Perritt, Supreme

Court ofTexas, 992 S.W.2d 444; 1999 Tex. Lexis 42 Tex. Sup. J. 574.

      Section 74.053(d) permits unqualified objections to the assignment of

any former judge, such as the Judge Ramsay. See Mitchell Energy Corp. v.

Ashworth, 943 S.W.2d 436 (Tex. 1997). A judge's status is fixed when a

judge leaves office. Mitchell Energy Corp., 943 S.W.2d at 437. Thus, a

former judge, who accumulates additional service time as a visiting judge

and subsequently retires, does not become a retired judge for purposes of

Section 74.053.


      As equally as important: the trial court's record contains no order

from a judge, ordering the assignment of Judge Charles Ramsay to hear

Appellee Willing's motion to declare Appellant a vexatious litigant prior to

the August 19,2014 hearing.

                                    18
 E.     Issue Two:

        Appellee Seanna Willing failed to prove by and through evidence
        submitted to the trial courtthat was entered into evidence that the
        Appellant could not prevail against her at the August 19, 2014
        hearing.


       Appellant's cause ofaction against Appellees Seanna Willing was not
 based on the same or substantially similar facts, transition, or occurrence,
 which is required by section 11.054. Devoil v. State of Texas, 155 S.W.3d
 498; 2004 Tex.App. Lexis 10473. Appellee Willing did not establish for the
 trial court that Appellant could not prevail in his lawsuit against her. Scot
Graydon, counsel for the Appellees provided no proof that Appellant could
not be successful against Willing. In light ofAppellant's attempts to obtain
limited discovery through depositions and his attempts at subpoenas to have
same witnesses to testify, which the trial court never addressed those issues,
nor did any judge (CR: Vol 1, P: 159—172), CR: Vol 1, P: 206—209),
(CR: Vol 1, P: 245—255), (CR: Vol 1, P: 239—242), (CR: Vol 1, P: 219^
-223). Appellees did not prove that Appellant did not have a reasonable
probability of prevailing; counsel for the Appellee Willing just made the
statement, "Appellant have no probability ofprevailing" to the trial court
without sworn affidavits or proofofany kind which does not satisfy Chapter

                                     19
  11 ofthe Tex. Civ. Rem Code, 11.054. Drake vAndrews (RR: Vol 1, P: 5,
 L: 2-11) and referred to Willing's immunity. Appellant has incontroverted
 proof to offer any trial court that Appellee Willing failed to investigate his
 case against Judge Martin Hoffman properly. Considering the fact that the
 Appellant was requesting an injunction and declaratory judgment against
 Appellee Willing in her official capacity, which is allowed, she horribly
 failed to prove the first prong in declaring Appellant a vexatious litigant, as
 Andrews did in Drake v. Andrews. But that evidence was prevented from
 being offered into evidence because the trial court erred by not addressing
the pending motions to quash that prevented Appellant from obtaining
limited discovery. Appellant also filed suit against Willing as a "person" or
individual capacity and asked for damages. Brown v. Brown.
       Scot Graydon advised the trial court that Appellant had already been
declared a vexatious litigant by another court, which is partly true. Mr.
Graydon just failed to inform the trial court that the 5th court ofappeals in
Dallas overturned that order. This failure to be completely truthful wasn't an
error on part of the Appellee Willing or her attorney, but it was to
accomplish their task of labeling Appellant as a vexatious litigant at any
cost, even at the expense oflying, misleading the trial court, and perjury.

                                      20
       Defendant Carl Ginsberg, a district judge in Dallas County, denied
 Appellant's motion to compel the discovery against Kastl and Ogden. The
 judge filed a notice that Appellant was avexatious litigate, and then ordered
 Appellant to seek permission before going forward. Thereafter Ginsberg
 dismissed Appellant lawsuit against Kastl and Ogden. However, Appellant
Drake dismissed his case before Ginsberg's order (CRr Vol 1, Pt-576-590).
The judge in a lawsuit cannot raise the issues of-whether a "plaintiff" is
vexatious as Ginsberg in Drake's case without holding a hearing. It is the
defendants who must make this motion. Because Ginsberg dismissed
Appellant's case and it was involuntarily done, the dismissal superseded the
vexatious litigate order signed by Ginsberg.

      Appellant provided Appellee Willing with uncontroverting evidence
that clearly demonstrated that judge Martin Hoffinan treated the Appellant
differently than he did white attorneys. This evidence was provided to
Appellee Willing inHie^rm of a magnetictape recording—in person. Yet,
Willing made the comment to Appellant with such evidence, "Who could
say a good word about^our character." The Appellant's character-was not

the subject to be scrutinized but it was judge Martin Hoffman's behavior in
the courtroom and his desire to purposely harm the Appellant cases.

                                     21
      Appellant filed a motion to recuse and disqualify Hoffman. A hearing

was conducted. And an officer of the court Robert Goodman Jr., testified

that Hoffman was hostile toward Appellant.

      The grounds for recusal and disqualifications are set out in Article V,

Section 11 of the Texas Constitution. Disqualrfication in a civil case is

permissible, and required, whenever the judge: 1). Is interested in the

outcome ofthe case. Hoffman ^was not onfy interested in the outcome; he

made sure that the Appellant's cases before him were ruled against the

Appellant. In fact, Hoffman committed a crime in one of the Appellant's

claims against Travelers Insurance Company by facilitating or aiding

obstruction of justice. Hoffman failed to recuse himself for improper

purposes. In re Complaint on Judicial Misconduct, U.S. Court of Appeal for

the 9th Cir., 647 F.3d 1181; 2011 U.S. Lexis 10438. The Appellant's

complaint that he filed with Appellee Wilting contained uncontroverting

evidence; Willing did notflnd itnecessaryto acton Appellant's complaint.

      Pursuant ttrChapter 11 of the Tex. Civ. Prac. & Rem. Code, Appellee

Wiiling-failedto ccirrply^whh Section: 11.054. CRITERIA FOR FINDING

PLAINTIFF A VEXATIOUS LITIGANT. A court may find a plaintiff a

vexatious litigant ifthe defendant shows that there is not a reasonable proba-


                                     22
 bility that the plaintiff will prevail in the litigation against a "defendant."

 Appellee Willing provided sufficient evidence to the trial court that Drake

would not prevail in his suit against her. Willing provided no affidavits, no

sworn statements, and no witness testimony. As explained herein, the

Appellant-was suing Seanna Willing in her official capacity and individual

capacity. Appellee Willing was so focused on Appellant's litigation history
that shetailed to prove the tirst prong under Chapter 11 ofthe Tex. Civ:

Prac. & Rem. Code. Drake v. Andrews.

       Notwithstanding, Appellant was not attempting to relitigate any
claims against Appellee Willing, nor was there any proof provided to the

trial court of that fact. Appellee Willing did not appear as a witness against
Appellant to testify, nor did she provide any affidavits, or sworn statements

of any kind to offer the trial court. Willing only advised the trial court that

she had sovereign immunity (RR: Vol 3 of 4, P: 26, L: 23), however, even

judges can be sued and they also enjoy sovereign immunity. This in itself

does not prove that the Appellant did not have the ability to prevail against

Appellee Seanna Willing because Drake-was seeking an injunction against
Appellee Willing. Appellee also failed to show tile trial court by case law
that a person that has sovereign immunity is immune against injunctive


                                      23
or declaratory relief. Similar to the Andrews case, counsel for Willing

focused on Appellant's litigation history, which many of the cases presented

to the trial court had been settled or did not qualify under Chapter 11 of the

litigation history. Appellee Willing failed to prove the first prong under

Chapter 11ofthe Tex. Civ: Prac. & Rem. Code.

      Appellant argued to the trial court that because of violations of due

process, he was prevented from proving his case against any of the

defendants (RR: Vol 3 of 4, P: 31, L: 8—43) (RR: Vol 3 of 4, P: 31, L:

23—25, and P: 52, L: 1—9). Appellant makes the same argument before

this Court. Appellant advised the trial court that Appellee Willing failed

procedurally, in that Willing would have to prove that all ofthe defendants

that the Appellate filed suit against were equally frivolous or in this case.

Appellee Willing failed procedurally to bring her motion against Drake.

(RR: Vol 3 of 4, P: 32, L: 14—22), (RR: Vol3 of 4, P: 38, L: 7—«).

Appellantcautioned thetrial courtthat ittailedtorfbllow procedure and the

Texas Rules ofCivil Procedure (RRt Vol 5 of 4, P: -39, Lr 4—17). Appellee

Willing advisethetrial court of a casethatAppellateliled in Dallas County,

DC-13-14911, that the Appellant has already shown was properly dismissed

by Drake before the judges actions (RR: Vol 3 of 4, P: 47, L: 10—19).


                                     24
      But as in the Andrews case, the Appellee Willing failed to meet the

first prong. If given the opportunity to orally examine Appellee Seanna

Willing, with the evidence that the Appellant has in his possession, it would

be proven without a doubt that Appellee Willing should not be allowed to

investigate any other complaints filed by the Appellant. This is the reason

why Willing, Kastl, and Ogden filed motions to quash. Uut the trial court

assisted them by conspiring together to block the Appellant from obtaining

discovery by denying Appellant's motion to compel hearing on the day of

the hearing for his motion to compel (CR: Vol 1, P: 219-223), (Vol 2 of 4,

P: 8, L: 10—25, and P: 9, L: 1—20), where the trial court judges conspired

against the Appellant to overcome his pending motion to compel.

      When a defendant seeks a vexatious litigant declaration, the plaintiff

may offer evidence to show there is a reasonable probability he will prevail

in the litigation. Amir-Sharifv. Quick Trip Corp., (App. [5th Dist.] 2013,

416 S.W.3d 914. As argued herein, the Appellant was prohibited in

acquiring his witnesses by motions to quash that the trial court never ruled

on before the trial court assigned improperly a visiting judge to hear and

ruled on Appellee Willing motion to declare Drake as a vexatious litigant.

Appellant argued before the trial court that he has been prevented from


                                     25
having his witnesses, which is a due process violation and Drake argues the

same in this Court.(RR: Vol 2 of 4, P: 10. L: 16—21). All ofthe defendants

in the trial court filed motions to quash, which the trial court never address,

though the Appellant sought limited discovery (CR: Vol 2 of 4, P: 234—

244), (CR: Vol 2 of 4, P: 245—255), (CR: Vol 2 of 4, P: 534—543).

      As in Drake v. Andrews, Appellee Willing did not offer sufficient

evidence to prove that there was no reasonable probability that Appellant

could not prevail in his lawsuit against her. Drake v. Andrews, (App. [5th

Dist], 2009, 294 S.W.3d3T0. Amir-Sharif v. Quick Trip Corp., (App. [5th

Dist] 2013, 416 S.W.3d 914. Appellant also argued that Appellee Willing

failed to prove that Appellant filed 5 (five) qualifying lawsuits that were

ruled against him. Douglas v. American Title Co. (App. [1st Dist.], 2006,

196 S.W.3d 876. Appellant filed a motion to vacate vexatious order (CR:

Vol 1, P: 608—614). "Defendant offered insufficient evidence that there

was no reasonable probability plaintiff could prevail in lawsuit, as required

to support dismissal of suit on ground that plaintiff was vexatious litigant.

Drake v. Andrews (App.5 Dist. 2009) 294 S.W.3d 370."

      When there are multiple defendants in a litigation, the defendant who

is bringing the motion to declare the "plaintiff" vexatious, must either apply


                                      26
proper procedure or prove there is not a reasonable probability that the

"plaintiff" would prevail against all defendants in the litigation—not just a

select defendant in the lawsuit. Appellee Seanna Willing failed to do either.

       Plaintiff does not have to show that his claims against any of the

defendants can be proven beyond a reasonable doubt, he only has to prove

that his claims are not frivolous to evade being labeled as a vexatious

litigant, which is a lesser standard than a preponderance ofevidence.

      However, Appellee Seanna Willing must prove that Drake's litigation

is frivolous as a whole. However, Appellee Willing at the August 19, 2014

hearing was unable to prove this point when Drake brought this to the trial

court's attention.


      Scot Graydon perjured himself multiple times to the trial court by

stating that he conference with the Appellant. (RR: Vol 3 of 4, P: 45, L: 1—

14). Quite the opposite, Appellant swears under the penalty of perjury that

Scot Graydon did not conference with him. See Exhibits [Appellant's

Affidavit] attached to Appellant's Third Amended Response to Vexatious

Litigant Order and Appellant's Motion to Vacate Vexatious Litigant Order

(CR: Vol 1, P: 616-618),(CR: Vol 1, P: 624—626).




                                     27
F.    Issue Three:

      Warren Vavra did not have the legal authority to appoint Judge
      Charles Ramsay to hear the August 19, 2014 hearing


      Appellant objected to Warren Vavra in the appointment of a visiting

judge, (Charles Ramsay) because Mr. Vavra is not a judge and pursuant to

the Tex. R. Civ. Practice he does not have the authority to appoint a judge in

the context of the Appellant's circumstances. Warren Vavra, is the trial

court's administrator, who isn't the regional presiding judge, nevertheless,

he assigned Judge Charles Ramsay to hear and rule on Appellees Willing's

Motion to Declare Appellant as a vexatious litigate, which was error.

      In McLeodv. Harris, 582 S.W.2d 772 (Tex. 1979), the Supreme Court

interpreted a statute, subsequently codified as section 74.059 of the

Government Code, which provided that a "district judge shall request the

presiding judge to assign a judge of the administrative district to hear any

motions to recuse such district judge from a case pending in his court." TEX.

GOVT CODE ANN. § 74.059 (Vernon 1988) (formerly TEX. REV. CIV.

STAT. ANN. art. 200a, § 6). Warren Vavra is not a judge nor is Mr. Vavra

the administrative judge and thus the assignment of Charles Ramsay was a

procedural error and any judgments or orders made by that judge should be


                                     28
vacated. The presiding judge of the administrative region or the Chief

Justice of the Tex. Sup makes assignments of judges. Court. Gov't Code

§74.056(c); Chandler v. Chandler, 991 S.W.2d 367, 379 (Tex. App.—El

Paso 1999).

      Mr. Vavra advised Mr. Graydon (Willing lawyer) and the Appellant

that the court had signed his motion of nonsuit, on August 19, 2014.

Therefore, the trial court failed to follow the TRCP in many ways. Appellee

Willing cannot overcome violating the Tex. R. Civ. P., in order to try and

declare the Appellate as being vexatious. At the time Vavra assigned Judge

Strauss and Judge Ramsay, he was fully aware that the Appellant had filed

recusals against all of the district judges and that the Appellant's recusal

motion had not been heard. Mr. Vavra was fully aware that Appellant filed a

motion to recuse all of the district judges in Travis County. And Vavra

admitted to Appellant that Willing's motion wasn't on the docket on August

19,2014.

      Tex. R. Civ. P. 18a; see also Tex. Gov't Code Ann. § 74.059(c)(3)

(West 2005) (juctee must "request the presiding judge to assign another

judge to hear a motion relating to the recusal of the judge from a case

pending in his court").


                                    29
G.     Issue Four:

       Judges David Phillips and Stephen Yelenosky orders of recusal
       and referral should be vacated



      The August 19, 2014 order is void because even though Judges

Phillips and Judge Yelenosky filed sham orders to attempt to make it appear

as if they were complying with Tex. R. Civ. P., 18a; Judge Phillips did not

indicate if he was recusing himself or refusing to recuse himself and

referring—in other words, the order he signed is as if he never signed the

order if the ORDER itself does not indicate what the judges position is on

the matter. The Tex. R. Civ. P., clearly set forth, a judge must either recuse

or refer. Moreover, Phillips order to recuse was not referred to the judge of

the administrative judicial district, as Rule 18a requires. And because

Phillips failed to refer his recusal, procedurally his August 19, 2014 order is

invalid, defective. But more importantly Phillips order was signed too late

and should be vacated.


      Besides, Judge Phillips lacked legal basis for assuming jurisdiction

over a motion seeking recusal of a district judge even though he was named

in Appellant's recusal motion. Neither the order of recusal or order of

referral that was signed on August 19,2014 was signed timely. Both orders


                                     30
were signed after the visiting judge; Charles Ramsay had already been

wrongfully assigned to hear Appellee Willing's motion to declare Appellant

vexatious, and after the trial court had signed the order declaring Appellant

as a vexatious litigant.

      The Appellant argued in open court of the many procedural errors of

not responding to his motion to recuse. (RR: Vol 3 of 4, P: 24, L: 1&-25; P:

38, L: 7—12; P: 40, L: 10—16; P: 12, L: 8—23).

      An order that is signed after the harm and error has been carried out is

an order that is void. A court administrator does not have the judicial power

to assign judges pursuant to Tex. R. Civ. P., or Tex. Gov't Code Ann.,

consequently the visiting judge, Charles Ramsay was not properly assigned

to hear Appellees Willing's motion to declare the Appellant as a vexatious

litigant, and therefore the order should be vacated.

      Therefore, the August 19, 2014 order declaring Appellant as a

vexatious litigate is void, and an appeal is the appropriate remedy to address

these void orders. The Appellant filed a mandamus, but this Court denied the

mandamus without providing a reason for its denial.

      It is Appellant's legal opinion, and pursuant to case law cited in this

briefherein that the following orders are void: 1). The order ofreferral by


                                      31
Judge Yelenosky); 2). The order of recusal by Judge Phillips; and 3). The

order declaring the Appellant as a vexatious litigate signed by the visiting

judge Charles Ramsay.

      All of these orders should be vacated by the Court and considered

void. (CR: Vol 1 of 1, P: 608—623); (CR: Vol 1 of 1, P: 545); (CR: Vol 1,

P: 559); (CR: Vol 1 of 1, P: 546); (CR: Vol of 1, 547—555). The August

19, 2014 orders cited herein are void and should be vacated because the

visiting judge signed the order while the Appellant's motion to recuse was

pending before the trial court. Victor Enterprises, Inc. v. Holland, (Tex.

App.—Dallas 2013); In re Guilbot.

      Likewise, on August 14, 2014 the trial court signed an order of

nonsuit on Appellant's claims against defendants Carl Ginsberg, Kristina

Kastl, Vikki Ogden, and Seanna Willing. The trial court made numerous

procedure errors, which were derived by the trial court's judge's intentional

and reckless desires to supersede Texas law and the Texas Code of Civil

Procedure. Even the simplest orders signed by the trial court should be

voided. There have been an overwhelming number of errors and conspirator

acts by several judges in Travis County. Victor v. Enterprises, Inc. v.

Holland.



                                     32
      The sham orders by Judges David Phillips and Stephen Yelenosky are
a good example of how these judges circumvent the law. But they have no
fear because Seanna Willing, who also committed fraud with her counsel

Scot Graydon an assistant attorney general, is the Travis County's judge's
overseer ofjudicial misconduct.

      The judges in Travis County fully is aware that the possibility of
being held account for their actions are none—as long as the person filing
the compliant is nonwhite and pro se.




                                    33
H.    Issue Five:

      The trial court failed to comply with Chapter 11 of the Tex. Civ.
      Prac. & Rem Code, Rule 18a and 18b of the Texas Rule of Civil
      Procedure, and other state laws and statutes

      The trial court failed to comply with the very statute that it declared

Appellant as a vexatious litigant. Chapter 11 ofthe Tex. Civ. Prac. & Rem.

Code allows a "plaintiff" to call witnesses in his or her defense. But the

Appellant was prohibited from basic due process rights. The trial court failed

to rule on the defendants motions to quash and Appellant's motion to

compel, and recuse before holding the August 19, 2014 hearing—the trial

court failed to act in accordance with Rule 18a and 18b ofthe Tex. R. Civ.


P., Texas Rules of Evidence, and the Texas and U.S. Constitutions.

      1.     Texas Rules of Civil Practice 18a and 18b.
      Section 18a provides in pertinent part as follows:
      §18a

      (f) Duties of Respondent Judge; Failure to Comply. (1) Responding to
      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 (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.



                                      34
      Denial of a motion to recuse is appealable upon final judgment. Tex.

R. Civ. P. 18a(f). Thus, an Appellant challenging the denial of a recusal

motion ordinarily has an adequate remedy by appeal of the denial of a

motion to recuse. However, in this case the recusal was never denied

because the trial court never acted timey on Appellant's motion to recuse.

Appellate relief is available when a judge violates a mandatory duty to

recuse or refer a motion to recuse. In re Norman, 191 S.W.3d 858, 860

(Tex. App.- Houston [14th Dist.] 2006, orig. proceeding).

      On August 7, 2014, Appellant filed a motion to recuse against all of

the district judges in Travis County. This action was taken only after judges

Tim Sulak, Amy Clark Meachum, and Orlinda Naranjo conspired together

with the assistant attorney general Scot Graydon and defendants Kastl and

Ginsberg to deny the Appellant's motion to compel hearing on the day of

Appellant's hearing. It is evident to the Appellate that he cannot obtain a fair

hearing in Travis County.

      On July 24, 2014, Appellant filed a motion to compel the defendant's

depositions, which he needed to respond to defendant's motions to transfer,

and notices he was an alleged vexatious litigant. The trial court took no

action regarding Appellant's motion to compel, up and until the date ofthe


                                      35
 hearing. While waiting in judge Amy Meachum's court she was given an
 order by Kastl and it appears a letter of some kind. Meachum knew that

 Kastl was trying to get an order signed on the day of Appellant's compel
 hearing to deny the hearing. Once the denial was signed, judge Meachum
 advised the Appellant and Scot Graydon that judge Sulak would hear
 Appellant's pending motion to compel, knowing that an order was signed
 denying die motion. Judge Sulak announced that he could not hear the

Appellant's motion to compel because another equal judge has signed an
order denying the motion to compel moments ago. (RR: Vor 2 of4, P: 8, L:
11—25; P: 9: L: 1—19).

       Travis County does not appoint one judge to hear cases but it's an

open docket, where any district judges may hear a motion or try cases.
However, after such of a conspired effort by the Travis County district
judges to deny Appellant's motion to compel hearing, Appellant had no
choice butto recuse all ofthedistrict judges. (CRr Vol 1, Pr 521—526). The
behavior by the three district judges named herein was reprehensible.
Appellant believed that he could not reasonably obtain a fair and impartial
hearing from any ofthe District or County judges. All judges involved will
be sued in federal court.



                                   36
       After Appellant filed his motion to recuse, not one of the judges
 recused themselves or referred the Appellant's recusals. Pursuant to Tex. R.

 Civ. P. 18a and 18b, upon a motion to recuse being filed against ajudge, he
 or she must either recuse or refer, there are no other options. However, after
the Appellant announced at the August 19, 2014 hearing that none of the
judges took any action on his motion to recuse, and that it is a violation of

TRCP 18a and 18b, one ofthe clerks in the 353rd left the courtroom and

apparently notified the judges ofthe procedural error, and two judges filed
sham orders in the trial court's record (CR: Vol 1 of1,P: 545); (CR: Vol 1,
P: 559); (CR: Vol 1 of 1, P: 546). But those sham orders came too late

because the visiting judge had already been appointed to hear the Appellee
Willing motion and had ruled on Willing motion to declare Appellant
vexatious.


      Under the general recuse or refer rule in Tex. Gov't Code Ann. §
25.00255(f), ajudge against whom a recusal motion has been filed has onfy
two options: grant the motion to recuse or refer the motion to another judge
for a ruling. Neither occurred in the trial court. The same is required under
the Tex. R. Civ. P. 18a and 18b. Even though a motion to recuse may be
defective, the challenged judge must either recuse orrefer the motion, so that

                                     37
another judge can determine the procedural adequacy and merits of the

motion to recuse. Appellee Willing objections to the motion has no bearing

on a judge following Rule 18a, especially because Appellant verified his

motion and the motion had been pending for more than 3 (three) days.

Pursuant to the Tex. R. Civ. P., a judge should respond to a litigates motion

of recusal within 3 business days. All of the Travis County district judges

failed to respond in 14 business days. Thus the sham orders of referral and

recusals by David Phillips and Stephen Yelenosky are again void.

      The statute states in mandatory language that the district judge shall

request the presiding judge to assign a judge to hear any motions to recuse.

Regardless of whether a motion to recuse may be defective or untimely, the

challenged judge must recuse or refer the motion so that another judge can

determine the procedural adequacy and merits ofthe motion. Norman, 191

S.W.3dat861.


      All courts agree that when a judge is confronted with a timely,

procedurally sufficient motion, the trial judge must either recuse herself or

refer the case to the presiding judge. Rule 18a(c), (d); See Brousseau v.

Ranzau, 911 S.W.2d at 892. These are the only two options the judge has

when a procedurally proper motion is filed. Brousseau v. Ranzau, 911


                                     38
 S.W.2d at 892. In such a case, when the judge refuses to recuse herself, two

 things must happen: (1) she must send all motions, responses, and

 concurring briefs, and the order ofreferral, to the administrative judge; and

(2) she must take no further action and make no further orders in the case

except for good cause stated in the order in which the action is taken. Rule

 18a(d). Likewise, when a judge recuses herself, two things must happen: (1)

she must request that the presiding judge of the administrative judicial

district assign another judge to the case; and (2) she must take no further

action and make no further orders in the case except for good cause, which

must be stated in the order in which action is takenRule 18a(c).

       In addition, one court has held that a transfer made by the trial judge-

-not the presiding judge—would be void. Lamberti v. Tschoepe, 116 S.W.2d

651, 652 (Tex. App.-Dallas 1989, orig. proceeding).

       As a result of Appellant's motions to recuse, there was never a

hearing nor does the trial court's clerk's record reflect that the administrative

judge denied Appellant a hearing onJudge Stephen Yelenosky referral. This
is mandatory. Though Yelenosky signed a referral, and if there is a referral

there must be a hearing or a denial of a hearing. The trial court's record
reflects neither occurred.



                                       39
      In McLeod v. Harris, 582 S.W.2d 772 (Tex. 1979), the Supreme Court

interpreted a statute, subsequently codified as section 74.059 of the

Government Code, which provided that a "district judge shall request the

presiding judge to assign a judge of the administrative district to hear any

motions to recuse such district judge from a case pending in his court." TEX.

GOVT CODE ANN. § 74.059 (Vernon 1988) (formerly TEX. REV. CIV.

STAT. ANN. art. 200a, § 6).

      When a motion to recuse has been filed, it is mandatory that the trial

judge request the administrative judge to assign another judge to hear the

motion. McLeod, 582 S.W.2d at 773. The trial court visiting judge was not

assigned by a judge to hear Appellees Willing motion to declare Appellant

as a vexatious litigate, but the visiting judge was assigned by the court

administrator (Vavra) who had no authority to assign judges, thus any orders

executed by the visiting judge (Charles Ramsay), including the August 19,

2014 order declaring the Appellant as a vexatious litigate should be vacated

and or set aside.


      Tex. R. Civ. P. 18a; see also Tex. Gov't Code Arm. § 74.059(cX3)

(West 2005) (judge must "request the presiding judge to assign another




                                     40
judge to hear a motion relating to the recusal of the judge from a case

pending in his court").

      Other courts of appeals have concluded that Rule 18a's recusal-or-

referral requirement is mandatory and that mandamus relief is appropriate to

compel compliance with the rule. See, e.g., In re Kiefer, No. 05-10-00452-

CV, 2010 Tex. App. LEXIS 4268, 2010 WL 2220588, at (Tex. App. Dallas

June 4, 2010, orig. proceeding) (recusal or referral "mandatory"); In re

Norman, 191 S.W.3d 858, 860 (Tex. App.-Houston [14th Dist] 2006, orig.

proceeding) (Rule 18a states that judge has "mandatory duty either to recuse

himself or refer the motion to the presiding judge"); In re Healthmark

Partners, L.L.C., No. 14-04-00743-CV, 2004 Tex. App. LEXIS 7636, 2004

WL 1899953, (Tex. App.-Houston [14th Dist] Aug. 26, 2004, orig. pro

ceeding). In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 179-80 (Tex.

App.—Corpus Christi 1999, orig. proceeding) see also Arnold v. State, 853

S.W.2d 543, 544 (Tex. Crim. App. 1993) (Rule 18a applies in criminal

cases); see also Ex parte Sinegar, 324 S.W.3d 578,2010 WL 4320399, (Tex.

Crim. App. 2010)

      Likewise, construing a substantially similar statutory predecessor to

Rule 18a, the Texas Supreme Court has held that (1) a judge has "the


                                    41
mandatory duty" to recuse himself or refer the matter to the presiding judge

to hear a properly filed motion to recuse. See McLeod v. Harris, 582 S.W.2d

772, 775 (Tex. 1979). But again, this Court disagreed and denied the

Appellant's mandamus—wrongfully. Appellate         courts   agree   that   the

provisions of Rule 18a are mandatory; and that they cannot be reasonably

read otherwise.


      Consequently, all of the district judges in Travis County abused their

discretion by failing to either recuse themselves or refer the motion to the

presiding judge of the administrative judicial district. See In re Prudential,

148 S.W.3d at 135 (judge has no discretion in applying facts to law).

Thereafter, the district judges failed again by conspiring to sign an order to

refer only after the Appellant argued on August 19, 2014 that they failed to

properly respond to his recusal motion.

      Moreover, the order of referral that came after the visiting judge that

was assigned to hear the Appellee Willing motion to declare Appellant as a

vexatious litigate was not forwarded to the Regional Presiding Judge. The

sham referral order was signed by Judge Yelenosky of the 34th JDC and

filed stamped at 5:00 P.M., however, the referral should had been to the




                                     42
presiding judge of the administrative judicial district for assignment to

another judge for hearing and disposition. There was no hearing conducted

on Appellant's motion to recuse nor was it denied. Bruno v. State, 916

S.W.2d 4, 7 (Tex. App.-Houston [14th Dist.] 1995, no pet).

      If a motion to recuse is procedurally sound, or otherwise in substantial

compliance with Tex. R. Civ. P. 18a, it is error for a trial judge to refuse to

either recuse herself or himself or to otherwise refer the recusal motion to

the presiding judge of the administrative region for assignment to another

judge for full evidentiary hearing and disposition. In re Richard Castillo,

1998 Tex. App. El Paso, Lexis 2473. In re Guilbot, 2009 (Tex. App.—

Houston [14th Dist] no pet.

      Additionally, David Phillips is not a district judge; he is the judge of

County Court No. 1, and therefore a County judges referral does not count in

the case of a district court case. A County judge would not be in a position to

preside over a district court case. The sham order signed by David Phillips is

not valid in several aspects.

      This Court should grant Appellant's appeal, vacate all orders pursuant

to the Appellant's case (Drake v. Kastl Law et al) signed on August 19,

2014, for the reason that relevant procedural rules required that a hearing be


                                      43
 held to develop arecord sufficient for any appeal onthe motion to recuse the

 trial judges and for all the reasons stated herein. And such that the trial

 judge's actions denying such requirements, and for all other reasons asserted

 herein the Appellant files this appeal timely to have the August 19, 2014
 order vacated in its entirety, including its prefiling order. Appellant contends
 that the trial court's order that Judge Charles Ramsay signed on August 19,
 2014 is void because Ramsay did not have the authority to sign the order.
       The August 19, 2014 order is void because it was derived by and
through fraud. The August 19, 2014 order is void because once Appellant
objected to the visiting judge Ramsay, though he refused to recuse or
remove himself from hearing the motion was error and abuse of discretion.

The August 19, 2014 order is void because although two judges filed sham
orders to attempt to make it appear as if they were complying with Tex. R.
Civ. P., 18a, the orders were defective on its face and procedurally defective.
      Neither the sham orders of recusal nor referral that was signed on
August 19, 2014 was signed timely. Both orders were signed after the
Appellant had already been wrongfully assigned to Judge Ramsay, and the
Appellant argued in open court ofthe procedural errors of not responding to
his motion to recuse. An order that is signed after the harm and error has


                                      44
been carried out is an order that is void. A court administrator does not have

the judicial power to assign judges pursuant to Tex. R. Civ. P., or Tex. Gov't

Code Ann., therefore the visiting judge was not properly assigned to hear

Appellee Willing motion. An appeal is his only remedy to the Appellant to

address: 1). The order of referral by Judge Stephen Yelenosky, 2). The order

of Recusal by Judge David Phillips, and 3). The order declaring Drake as a

vexatious litigate signed by Judge Ramsay.

      Appellant filed his motion for nonsuit on August 7, 2014. Willing

filed her motion to declare Appellant as a vexatious litigant on August 5,

2014. Appellee Willing failed to conference with any ofthe co-defendants or

the Appellant per local rules before filing her motion to declare Drake

vexatious. Appellant had no idea that Willing had filed a motion for

affirmative relief when he filed his motion for nonsuit. Wiling argued that

she conference with Drake later, but she cannot revitalize her motion,

because her second conference came too late. Willing could not repair a

motion that was dismissed because of intentional procedural errors.

      Willing through her legal counsel admits during the August 19, 2014

hearing that she failed to conference with the Appellant timely. Appellant

Drake must be timely noticed that a defendant is seeking affirmative relief—


                                      45
which Willing failed to do so—and not file a motion by "seek attack."

Willing did not want the Appellant to know that she was filing the motion

until after the motion was filed with the trial court. Thereafter, Willing (the

head of the Judicial Commission) through her attorney who is an assistant

Attorney General acts dumb and say to the trial court that they were unaware

that they had to conference with the Appellant. Willing intentionally violated

procedure to file the motion without the Appellant's knowledge. Moreover,

Willing pursuant to the TRCP and local rules in Travis County should have

conference with the Appellant and co-defendants, which she failed to do.

      If a motion to recuse is denied, the denial may be reviewed on appeal

from the final judgment. Tex. R. Civ. P. 18a(f). See In re Union Pacific

Resources Co., 969 S.W.2d 427, 428, 41 Tex. Sup. Ct. J. 591 (Tex. 1998).

The standard of review for the denial of a motion to recuse is abuse of

discretion. Tex. R. Civ. P. 18a(f). The test for an abuse of discretion is

whether the trial court acted without reference to any guiding rules or

principles, or acted arbitrarily or unreasonably. The trial court judges did not

refer Appellant's motion to recuse to the regional presiding judge or recuse

themselves as required by Rule 18a, thus any order signed are considered




                                      46
void, which in this case specifically the August 19, 2014 declaring Drake as

a vexatious litigant. The trial court records contain no ruling by or from the

regional presidingjudge.

      Appellant brought to the attention of the trial court that his recusal

motion was pending, however, the visiting judge ignored Appellant's

objection and proceeded with the hearing (RR: Vol 3 of 4, P: 14, L: 5—25;

P: 10, L: 14—25; P: 11, L: 1—15). The trial court did not have Willing's

motion on the docket, it had signed Appellant's nonsuit, but Willing's

counsel demanded the hearing, even when it wasn't on the docket.

      The trial court did nothing about Appellant's recusal. A trial judge

presented with a motion to recuse must promptly enter an order for either

recuse/ or referral, "he does not have the option of doing nothing")

Greenberg, Benson, Fisk and Fielder, PC. v Howell, 685 S.W.2d 694, 94

(Tex. App.—Dallas 1984, no writ, no writ). In re Kiefer, 2010 WL 2220588

(Tex. App.—Dallas 2010, no pet.) (mem. op.). In Appellant's case, his

motion to recuse was not denied; it was just never acted upon by any ofthe

judges up and until the Appellant was in a hearing, which the trial court

acted too late, thus any orders signed by the visiting judge are void.



                                      47
         Regardless of procedural sufficiency of a motion to recuse, trial court

violated Rule 18a in failing to act either to recuse herself or refer the case to

the presiding judge; her ruling on the recusal motion was an abuse of

discretion by which such ruling was vacated and any subsequent orders or

judgment made subsequent to the denial ofthe first recusal motion are void.

Victor Enterprises, Inc. v. Holland, 2013 WL 329034 (Tex. App.—Dallas

2013).

         If a trial court fails to comply with the rules provided in Rule 18a, all

actions taken by the judge subsequent to such violation are void. Mosley v.

State, 141 S.W.3d 816, 837 (Tex. App.-Texarkana 2004, pet. Refd);

Lamberti v. Tschoepe, 116 S.W.2d 651, 652 (Tex. App.—DALLAS 1989,

Writ denied).

      Appellant's motion to recuse was never acted on by the presiding

judge ofthe administrative judicial district. In the case ofBamhill v. Agnew,

2013 WL 5657644 (Tex. App.—Tyler 2013) the judge did not refer the

motion to the regional presiding judge or recuse himself, as in the issues

before this Court. All subsequentorderwere ruled void.




                                        48
      Issues as to the qualifications ofthe trial court judge may be raised for

the first time on appeal. In re DC. Jr., 2010 WL 3718564 (Tex. App —

Amarillo 2010, no pet). However, the Appellant raised Judge Charles

Ramsay's ability to hear Willings motion to declare Drake as a vexatious

litigant on the day ofthe hearing itself: August 19, 2014. (RR: Vol 3 of 4,

P: 12, L: 8—12).

      Appellant recused all of the district judges and two County judges

(CR: Vol 1, P: 521—526). Pursuant to Rule 18 of the TRCP, the regional

presiding judge must rule on a referred motion or assign a judge to rule,

neither occurred in the Appellant's case in the trial court. Notwithstanding,

the ruling must be in writing. No such rutins Is contained In the trial

court's clerk's record submitted to this Court. There was no hearing on

Appellant's recusal motion. The trial court judges ignored the Appellant's

motion of recusal, which is forbidden by Rule 18 of the TRCP. Johnson v.

Pumjani, 56 S.W.3d 670, 672 (Tex.App.—Houston [14th Dist] 2001.

      Judge Phillips did not indicate if he was referring or recusing (CR:

Vol 1, P: 546). Because Phillips did not complete his order, he also failed to

comply with the TRCP 18a (f)(1)(B). The trial court's clerk of court should




                                     49
had delivered a copy of the order of disqualification, recusal or referral to

the regional presiding judge immediately with the 3 day period, but this did

not occur in the Appellant's trial court's case. TRCP 18a (e)(2).

      All of the greatest intentions do not allow a judge to escape the fact

that the order he signed was not complete. Regardless of procedural

sufficiency's of a motion to recuse, trial court violated Rule 18a in failing to

act either to recuse or refer as in the case before the Court. Victor

Enterprises, Inc. v. Holland, 2013, WL 329034 (Tex. App.—Dallas 2013).

Appellant was entitled to a hearing on his motion to recuse. TRCP 18a

(g)(6). The hearing would have given the Appellant an opportunity to

develop a record to support his motion. In re Rio Grande Valley Gas Co.,

987 S.W.2d 167,179 (Tex.App.—Corpus Christi 1999).

      Because ofthe judges failure to comply with the TRCP 18, all orders

or judgments of a trial judge who was constitutionally disqualified from

sitting are void. TescoAm., Inc. v. Strong Indus., 221 S.W.3d 550, 555 (Tex.

2006); In re Union Pac. Res., 969 S.W.2d 427, 428 (Tex. 1998). And regard

ing Judge Charles Ramsay, orders of an assigned judge who should have

been removed after an objection under Gov't Code §74.053 are void. In re



                                      50
Canales, 52 S.W.3d 698, 701 (Tex. 2001); Dunn v. Street, 938 S.W.2d 33,

34—35 (Tex. 1997); Flores v. Banner, 932 S.W.2d 500, 501 (Tex. 1996).

      As in Drake v. Andrews, Appellees did not offer sufficient evidence

to prove that there was no reasonable probability that Appellant could not

prevail in his lawsuit against her. Drake v. Andrews, (App. [5th Dist.], 2009,

294 S.W.3d 370. Amir-Sharif v. Quick Trip Corp., (App. [5th Dist.] 2013,

416 S.W.3d 914. Appellant also argued and argues in his brief that

Appellees failed to prove that Appellant filed 5 (five) qualifying lawsuits

that were ruled against him. As in the Andrews case, Appellee Willing failed

to prove the first prong under Tex. Prac. & Rem. Code and committed a

crime of perjury, and fraud. Any party to a case may move for recusal ofthe

judge; the judge may then voluntarily recuse himself or requests the chief

administrative judge of the district to appoint a judge to hear the motion for

recusal. Tex. Arty. Gen. Op. DM—109 (1992).




                                     51
I.     Issue Six:


       Trial court abused its discretion when the court continued to hear
       Appellees Seanna Willing Motion to Declare the Appellant as a
       Vexatious Litigate in light of the fact that Judge Ramsay did not
       have the authority or jurisdiction to preside over Appellees
       Willing motion to declare him a vexatious litigant


       Appellant argue that the Judge Ramsay lacked authority to hear the

Appellee Willing motion to declare him as a vexatious litigation and that the

resulting final August 19,2014 order is void. Part of Appellant's argument is

that the visiting judge's (Charles Ramsay) authority originates solely from

an order of assignment from a proper judge. However, in this case, there was

no order of assignment by a proper judge or any judge that can be found in

the trial court's clerk record.


      As already argued before the Honorable Court, the visiting judge did

not have jurisdiction to act or authority to enter the August 19,2014 order. A

judgment is void when the court rendering judgment has no jurisdiction of

the person of a party or his property, no jurisdiction ofthe subject matter, no

jurisdiction to enter the particular judgment, or no capacity to act."

Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005); Austin Indep. Sch.

Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex. 1973).


                                      52
       A judgment of a court which has no jurisdiction over the subject
 matter is void, that is, "entirely null within itselfand which is not susceptible
 of ratificationf,] confirmation," or waiver. Easterline v. Bean, 121 Tex. 327,
 49 S.W.2d 427,429 (1932). Subject-matter jurisdiction "cannot be conferred
 on a court by consent or waiver," and lack thereof "renders ajudgment void
rather than merely voidable." Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703
(Tex. 1990); Jeter v. McGraw, 218 S.W.3d 850, 853 (Tex. App.-Beaumont
2007, pet. denied); See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 445 (Tex. 1993); Fed. Underwriters Exch. v. Pugh, 141 Tex.
539, 174 S.W.2d 598, 600 (1943) (subject-matter jurisdiction exists by
operation of law and cannot be conferred on any court by consent or
waiver); In the Guardianship ofErickson, 208 S.W.3d 737, 740 (Tex. App.-
Texarkana 2006, orig. proceeding); In the Estate ofBean, 120 S.W.3d 914,
919 (Tex. App.-Texarkana 2003, pet. denied).

      Because Charles Ramsay was not assigned by a proper judge, he had
no authority or jurisdiction to preside over, hear or rule on any motions
presented by either party on August 19, 2014. Ramsay ignored the
Appellant's notices and the Tex. R. Civ. P., and proceeded with the hearing
which was error and abuse ofdiscretion (RR: Vol 3of4, P: 15, L: 2—3).

                                         53
J.     Issue Seven:


       The August 19, 2014 order declaring the Appellant as a vexatious
       litigant was obtained by and through deception and perjury by
       Scot Graydon an assistant attorney general and was a product of
       fraud, fraudulent inducement


       Scot Graydon, an assistant attorney general for the state of Texas in

Austin, Texas perjured himself and obtained the August 19, 2014 order by

and through fraud, and deception. Mr. Graydon advised the trial court that he

conference with the Appellant regarding Appellees Willing's Motion to

Declare Drake as a vexatious litigant. Because Mr. Graydon is an officer of

the court and an assistant attorney general, his statements to the trial court

were considered perjury if he knowingly made a false statement to the court.

      Appellee Willing's counsel failure to be completely truthful wasn't an

error on part ofthe Appellee Wiling or her attorney, but it was to accomplish

their task of labeling Appellant as a vexatious litigate at any cost, even at the

expense of lying, misleading the trial court, and perjury. However, as

already pled herein, Seanna Willing failed to conference with the other

defendants in seeking her motion to declare Appellant vexatious.

      Scot Graydon perjured himself multiple times to Judge Ramsay by

stating that he conference with the Appellant. (RR: Vol 3 of 4, P: 45, L: 1—

                                      54
14). Appellant has sworn under the penalty of perjury that Scot Graydon did

not conference with him. See Exhibits [Appellant's Affidavit] attached to

Appellant's Third Amended Response to Vexatious Litigant Order and

Appellant's Motion to Vacate Vexatious Litigant Order. (CR: Vol 1, P:

620—626). Where there is any doubt that the order signed by visiting judge

is even possibly fraudulent and or obtained by fraud, the order should be

vacated.


      The mere allegation, "that the judgment was obtained by fraud," is not

sufficient. The facts relied on as constituting the fraud must be distinctly

averred, and the court is to determine whether those facts sustain the charge.

(Martin v. Sykes, 25 Tex. Supp., 198.) Appellant executed affidavits under

the penalty of perjury that Graydon did not conference with him. (CR: Vol

1, P: 608—618; P: 620—626).

      The appellate courts in the exercise of equitable powers may grant by

re-examining a case on its merits, such relief as equity and justice may

demand when it is made to appear that a judgment is obtained by fraud. That

the willful giving of false testimony by a party to an action in relation to a

matter affecting an issue to be tried is fraud ofthe most pernicious character

cannot be questioned, and for such conduct, an injured party is entitled to


                                      55
have a cause re-examined on its merits, and granting such relief as equity

and justice may demand. McMurray v. McMurray, 67 Tex. 665; 4 S.W.357;

1887 Tex. Lexis 943.


      In common with all other courts, the appellate court's have the power,

when a judgment, order or decree has been entered without jurisdiction, or

when obtained by fraud or such other means as are held to render the

judgments, orders or decrees void, so to declare them at any time. Heath et

al v. Layne et al, Supreme Court, 62 Tex. 686; 1884 Tex. Lexis 312. Lee v.

Killian, 761 S.W.2d 139; 1988 Tex. App. [2nd] Lexis 3173.

      In Lee v Killian, the trial court granted summary judgment based on a

wavier that was obtained by fraud. The appeals court reversed and

remanded. Lee v Killian, 161 S.W.2d 139; 1988 Tex. App. Lexis 3173. Un

less the order is set aside that was obtained by fraud; Appellant will suffer

substantial and irreparable injury. Smith v. McDaniel, 170 S.W. 1070; 1914

Tex. App. Lexis 1021.

      Upon proof that assistant attorney general Scot Graydon did commit

fraud upon the court and was untmthful to the court to obtain an order

against Appellant, the Court should sanction him, report him to the bar

association, and have him disbarred. Contracts induced by fraud are not


                                     56
valid. Green v. Chandler, 25 Tex. 148; History Co. v. Flint, 4 Willson, Civ.

Cas. Ct. App. §224,4 Tex. Civ. Cas. 364, 15 S.W. 912; Drinkardv. Ingram,

21 Tex. 650, 73 Am. Dec. 250; Johnston v. Loop, 2 Tex. 331; Bankers v.

Calhoun (Tex. Civ. App.) 209 S.W. 826.

      The trial court's visiting judge made his decision based on misleading,

and false information directed to him by the Appellee Willing legal counsel.

Graydon advised Judge Ramsay on 8/19/2014, "In the event the Court of

Appeals determines that a motion to recuse would been proper, if the court

enters an order today granting my motion, it can simply be vacated" (RR:

Vol 3 of 5, P: 22, L: 7—19). Graydon goes on to suggest to the trial court

on August 19,2014 that there would be "no harm" caused to Drake.

      Appellee Willing demanded and got the trial court's visiting judge to

sign a prefiling order, which the Appellant objected to in form and content.

(CR: Vol 1, P: 564-571). The order derived of fraudulent behavior by the

Appellee Willing and an assistant attorney general was intended to prevent

the Appellant from filing new litigation without permission of the

administrative judge. But because the order signed on August 19, 2014 by

Judge Ramsay is void, and a product of fraudulent misrepresentations, which

is an actionable fraud; the August 19,2014 order is non-effect. Stanfieldv.


                                     57
 O'Boyle, 462 S.W.2d 270, 272 (Tex. 1971); Stone v. Williams, 358 S.W.2d

151 (Tex. Civ. App.-Houston 1962).

      In order to be fraud or fraudulent, the Court should look at the

following: (1) that Scot Graydon attorney for the Appellee Willing made a

material misrepresentation to the trial court on August 19, 2014 [that he

allegedly conference with the Appellant about his motion to declare

Appellant as a vexatious litigate] to induce the visiting judge to sign his

order, (2) that the representation was false, (3) that Scot Graydon knew it to

be false at the time he made the statement, (4) that the statement was made

with the intent to deceive the trial court visiting judge Charles Ramsay, (5)

that the false statement would be acted upon by the trial court, and the trial

court did act upon Mr. Graydon's misrepresentations by signing the August

19, 2014 order to declare Appellant as a vexatious litigant, and prefiling

order against Appellant and that he must obtain permission prior to filing

any new litigation, (6) that the trial court reasonably relied on Scot

Graydon's fraudulent statements because he is an officer ofthe court and an

assistant attorney general and because of Mr. Graydon's race: white, and (7)

that Appellant has suffered injury as a result of Appellee Willing and Scot

Graydon's fraud. The alleged notice ofthe hearing was filed after the


                                     58
Appellant filed his motion for nonsuit, although the order signed by the trial

court nonsuiting the Appellant's cause of action was also defective. (CR:

Vol 1, P:527—529), file dated: August 7, 2014 at: 1:07 P.M. Appellee

Willing filed her motion to declare Appellant as a vexatious litigate on

August 5, 2014. (CR: Vol 1, P: 263—282). On August 7, 2014, Willing

through her attorney filed a supplemental notice to try to overcome their

intentionally not conferencing with the Appellant. This notice was filed

August 7, 2014. (CR: Vol 1, 517—519), at: 2:59 P.M. Even the

supplemental notice was filed after the Appellant filed his motion for

nonsuit. Pursuant to Travis County Local Rules, because Willing failed to

conference with Appellant Drake before she filed her motion to declare him

a vexatious litigant, the motion was defeated. Willing legal counsel admitted

this to the trial court and said, "I will stand here and I will tell the Court that

prior to filing the motion, I did not confer with Mr. Drake." (RR: Vol 3 of 4,

L: 1-5). Thus, a supplemental notice coming after the nonsuit is filed will

not save Willing's motion to declare the Appellant as a vexatious litigant

because it came too late—there was no pending affirmative relief. Willing

filed her original motion to declare Appellant as vexatious by "ambush."




                                        59
      Drake directs the Court's attention to Willing certificate of

conference: (CR: Vol 1, P: 518). In this document attorney Graydon,

Willing's counsel misrepresents that he conference with the Appellant

regarding Willing's motion to declare Drake as a vexatious litigant. But

there is more; the clerk's record numbered: 518, contains Graydon's

statement to the trial court that he conference with the Plaintiff at 9:50 p.m.

at night. Graydon's certificate further states that he conference with Drake

in-person at nearly 10:00 p.m. on August 6, 2014, which the Appellant was

in Dallas on August 6, 2014 at 10:00 p.m. at his home. Graydon also

perjured himself before the trial court regarding the matter. (RR: Vol 3 of 4,

P: 45, L: 1—14). Graydon violated TRCP 191.3(b).

      The fact that Appellant could not call his witnesses, and Chapter 11 of

the Tex. Civ. Prac & Rem. Code allows witnesses to be called on behalf of

the "plaintiff." Judge Ramsay also knew that the trial court judges had not

recused or referred themselves because Appellant brought this to the visiting

judge's attention, however, that did not slow down Judge Ramsay's desire to

sign an order declaring Appellant as a vexatious litigant, and thus the order

should be vacated. Graydon should be sanctioned pursuant to TRCP

191.3(e).

                                     60
 K.    Issue Eight:


       Trial court abused its discretion when the court continued to hear
       Appellees Seanna Willing Motion to Declare the Appellant as a
       Vexatious Litigate even after Appellant objected to Judge Ramsay
       of due process violations and violations under Chapter 11 of the
       Texas Civil Prac. & Remedies Code


       Appellant's cause of action against Appellees Seanna Willing was not
based on the same or substantially similar facts, transition, or occurrence.

Devoil v. State of Texas, 155 S.W.3d 498; 2004 Tex.App. Lexis 10473.
Though Appellant objected to violations of his due process, the trial court

visiting judge did not have authority to preside over the Appellee Willing's
motion to declare Appellant as a vexatious litigate because prior defendant
motions had not be ruled on and addressed nor had Drake's motion to

recuse. (CR: Vol 1, P: 521-526; P: 608-618; P: 534-543; P: 50-55; P:

125-133; P: 140-149; P: 234-244; P: 245-250).

      Appellant filed a motion to continue until the court could address his

motions to take limited discovery. Appellant had to file a motion to compel
discovery. Defendant Kastl conspired with three judges to have Appellant's
compel hearing denied while Appellant sat waiting on his motion to be heard

on the very same day. Appellant has uncontroverted proof to offer any trial
court that Appellee Willing failed to investigate his case against Judge
                                      61
Martin Hoffman properly. But that evidence was prevented from being

offered into evidence because the trial court erred by not addressing the

pending motions to quash that prevented Appellant from obtaining limited

discovery. The ability to call witnesses to the stand under oath and discovery
are important elements of any civil or criminal case, which are violations of

Appellant's due process and constitutional rights. Yet, Kastl objected to

Drake's compel hearing (CR: Vol 1, P: 513).

       The trial court failed procedurally in assigning visiting judge Charles

Ramsay. Appellant also argued before the trial court that he has been

prevented from calling witnesses to the hearing, which are due process

violations. (RR: Vol 3 of 4, P: 31, L: 8—13).

       When a defendant seeks a vexatious litigant declaration, the plaintiff

may offer evidence to show there is a reasonable probability he will prevail

in the litigation. Amir-Sharif v. Quick Trip Corp., (App. [5th Dist] 2013,

416 S.W.3d 914. As argued herein, the Appellant was prohibited in

acquiring his witnesses by motions to quash that the trial court never ruled

on before the visiting judge was assigned, ruled on, and signed the order to
declare the Appellant as a vexatious litigant.




                                          62
      Appellant was not given any opportunity to call the witnesses that he

needed to respond to Appellee Willing's motion to declare him as a

vexatious litigant. Though the Appellant preserved his objections to

Ramsay's assignment and to Appellees Willing's exhibits on August 19,

2014 on the record. (RR: Vol 3 of 4, P: 10, L: 14—25, and P: 11, L: 1—

25, P: 12, L: 1—12). Pursuant to RR, Vol 3 of 4, Page 26, Lines: 6 through

7, the court is noted as overruling the Appellant's objections to the exhibits

of Willing. The trial court did not overrule the Appellant's objection on

August 19,2014.

      For these reasons the August 19, 2014 order declaring Appellant as a

vexatious litigant should be vacated.




                                        63
 L.    Issue Nine:


       Trial court abused its discretion in signing the August 19, 2014
       order declaring Appellant vexatious because the trial court
       district judges had not responded or acted on Appellees
       jurisdictional issues or Appellant's special exceptions prior to
       assigning Appellee Willing motion to declare Drake a vexatious
       litigant and prior to actually signing ofthe motion


       The trial court failed to address important motions filed by the
majority of the defendant's concerning jurisdiction. On June 17, 2014,
Defendant Ginsberg filed a motion to transfer for lack of subject mater
jurisdiction. On July 11,2014Defendant Kastl lawfiled a motion to transfer.

On July 8, 2014 and July 17, 2014 Defendant Vikki Ogden filed a motion to
transfer. (CR: Vol 1, P: 50—55; P: 125—133; P: 140—149).
      Appellant answered those motions by responding on August 24, 2014
by filing special exceptions, motion to compel, motion for evidentiary
hearing. But none of those motions that were filed by the Appellant or
motions filed by any ofthe defendants that were important to the trial court
jurisdiction were heard or acted upon by any by the trial court before the
visiting judge was assigned to hear and rule on Appellee Willing's motion to
declare Drake as a vexatious litigant (CR: Vol 1, P: 534—543; P: 234
244; 245—250). And when jurisdiction is an issue, itwas improper for the
                                    64
trial court to assign Judge Charles Ramsay to preside over or hear Appellee

Willing motion until those issues where decided.

      All of the district trial court judges erred and abused their discretion

by not acting on the defendant's motions to transfer, motions to quash, and

motion to recuse (CR: Vol 1, P: 521—526).

      Whether a court has subject-matter jurisdiction is a question of law.

Texas Depft of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.

2004). When jurisdictional facts are disputed, the manner in which the trial

court analyzes the jurisdictional challenge depends on whether the disputed

jurisdictional fact issues do or do not implicate the merits of the plaintiffs

case. See University of Tex. v. Poindexter, 306 S.W.3d 798, 806-07 (Tex.

App.—Austin 2009, no pet.). If the disputed jurisdictional issue or facts do

not implicate the merits, the court—not the jury—must make the necessary

factual findings to resolve the jurisdictional issue. See Miranda, 133 S.W.3d

at 226 ('"Whether a district court has subject matter jurisdiction is a question

for the court, not a jury, to decide, even if the determination requires making

factual findings, unless the jurisdictional issue is inextricably bound to the

merits ofthe case.1") (quoting Cameron v. Children's Hosp. Med. Ctr., 131

F.3d 1167,1170 (6th Cir. 1997)). Martin v. National Instruments Corp.,


                                      65
 Court of Appeals, [3rd Dist] 2013 Tex. App. Lexis 7021. However, a trial
 court cannot ignore jurisdictional facts as it has done in this case and assign
 a visiting judge to hear Appellee Willing's motion to declare Appellant a
 vexatious litigant—especially under the given facts. Venable v. Sherbet,
 Court ofAppeals, [5th Dist] 365 S.W.3d 359; 2010 Tex. App. Lexis 9083.
       The trial court conducted no hearings pursuant to the defendant's
 objection to jurisdiction, nor did itmake any rulings concerning jurisdiction
before assigning the visiting judge to hear the Appellee Willing motion to
declare Appellant as avexatious litigant. And though Appellee Willing filed
a plea to the jurisdiction, the trial court never addressed even that issue.

Furthermore, Appellee Willing has said in open court through her counsel
and in her pleadings that the Appellant's claims against her have been
falsely made. A plea to the jurisdiction cannot be sustained where the

contention is to the effect that the plaintiffhas falsely stated a claim, which,
in fact, is nonexistent, for this is amatter of defense on the merits. City of
Austin v. Savetownlake.Org, Court of Appeals of Texas, [3rd Dist] Austin
2008 Tex. App. Lexis 6471. Appellee Willing did not support its plea with
relevant facts, but inthis case more importantly, the trial court did not act on
any parties plea to jurisdiction—which is error and an abuse of discretion.


                                      66
       The trial court failed to resolve factual issues before assigning Charles
 Ramsay to hear the Appellee Willing motion to declare Appellant as a
 vexatious litigant. This failure is an important preempt to a hearing such as
 declaring a party as a vexatious litigant or to any motions, which would

suspend or dismiss a plaintiffs cause of action.

       All ten (10) district judges in Travis County failed to take even the

minimum action. There was never a hearing on Appellant's motion to
recuse, and until that Motion is determined no judge can rule or carry out
any orders. The sham orders signed by one district court judge and one

County court judgewill not overcome the untimeliness of their sham orders,

and the fact that a visiting judge was appointed improperly before Appellant

motion to recuse was decided is an even greater issue because the visiting
judge could not be assigned until the recusal was procedurally disposed of
properly. Thus trial court's orders signed on August 19,2014 are void.

      Appellant directs the Court's attention to Appellee Willing order.

What the Appellee Willing was attempting to do is cover apparently a
recusal and vexatious hearing together, and neither worked properly. (CR:
Vol 1, P: 547—555). Thus, the sham order of referral, sham order of

recusal, and the order declaring Appellant a vexatious litigate each order


                                      67
 signed on August 19, 2014 should be vacated and sanctions filed against
 Seanna Willing, and Scot Graydon for conspiracy and perjury.

 M.    Issue Ten:


       Trial court abused its discretion in signing the August 19, 2014
       order declaring Appellant vexatious because Appellee Willing's
       motion to declare Drake as a vexatious litigant was procedurally
       defective



      Appellee Willing's motion to declare the Appellant, as a vexatious

litigant is procedurally defective as already pled herein to this Court.

Appellee Willing attorney failed to conference with the Appellant. Rather
than taking the proper steps to correct the motion of conferencing with
Appellant and filing an amended motion to declare the Appellant a vexatious
litigant, Appellee Willing's attorney Scot Graydon decided to commit fraud

upon the court and lied to the trial court. There are other procedures that
Willing fail to undertake to declare Appellant Drake as a vexatious litigant.
      Scot Graydon did not conference with the Appellant by mistake, he
did so knowingly to avoid letting the Appellant know he was going to file
the motion, and to avoid having his motion denied pursuant to local rules.
When Mr. Graydon heard judge Meachum say onAugust 7,2014, that the

                                     68
 Travis County local rules requires a conference he hurriedly tried to repair
 his intentional mistake. But because he failed to follow proper procedure and
 Travis County local rules, Graydon's plans did not produce what he had
 schemed. Moreover, Appellee Willing not only failed to conference with
Appellant but she failed to give adequate time for the Appellant to respond
to her motion to declare him as avexatious litigant. On August 7, 2014 Scot
Graydon claims that he conference with the Appellant and gave Appellant a
copy of his motion to declare him as avexatious litigant, which again is not
true. The hearing on that motion was held on August 19, 2014 which is only
12 days from Mr. Graydon's claims of when the Appellant was served,
which was not adequate time to properly respond to the motion. Similar to a

motion for summary judgment, a motion to declare a person, as a vexatious
litigant will alter a lawsuit, and in many cases result in a dismissal. Under

the Tex. R. Civ. P., a party must give the party who's being served a
summary judgment 21 days notice. The purpose of notice provision is to
give the party opposing the motion a full opportunity to respond on the
merits. Stephens v. Turtle Creek Apartments, Ltd., 875 S.W.2d 25, 26 (Tex.
App—Houston [14th Dist.] 1994, no writ). Likewise, Appellant should had



                                    69
 been given a 21 days notice. In addition, the trial court had dismissed the

 case and the Appellant had no warning that the hearing was going to take
 place and be heard.

       Appellee Willing advised Judge Ramsay through her legal counsel in
 the trial court that Appellant's motion to recuse does not effect him (Judge
 Ramsay) because [he] (Judge Ramsay) was not named in the recusal. (RR:
Vol 3 of 4, 13—23). Willing's attorney goes on to say that there is good
cause for the trial court to continue in light ofAppellant's motion being filed
(RR: Vol 3 of 4, 19—23). Pursuant to Tex. R. Civ. P., once a judge has a
motion to recused filed against him or her, the case cannot be heard by
another judge until that motion to recuse is decided, whichneveroccurred in

this case. Willing horribly provides the trial court with justification for her
ignoring well-seated case law. Appellee Willing goes on to advise the trial
court that Appellant's motion to recuse is defective, however, case law
reinforces that this is not areason for acourt to ignore TRCP 18a, 18b. (RR:
Vol 3 of 4, P: 19, L: 7—13). Appellee Willing further argues to the trial
court that if the trial court declares Appellate a vexatious litigate and later
decides that this was improper that there is no harm caused to the Appellate.
Ofcourse, Appellate has already been substantially harmed in many ways

                                     70
 after Judge Ramsay wrongfully declared him a vexatious litigate, which he

 will sue all parties involved in federal court including Judge Charles

Ramsay. (RR: Vol 3of 4, P: 22, L: 7—19). Appellee Willing admits that she

failed to conference with the Appellate but somehow believes that she cured

the defect by committing perjury to the trial court through her legal counsel.

(RR: Vol 3 Of 4, P: 44, L: 23—25, and P: 45:1—25).

       The trial court made procedurally fatal decisions of appointing a

visiting judge to hear a motion before addressing important pending issues,
especially Drake's motion to recuse. And even though the Appellant

addressed those issues before the trial court, the visiting judge erred by not

stopping the hearing. Judge Charles Ramsay erred by not recusing himself

because he was not properly assigned to hear the motion to declare

Appellant as a vexatious litigant. The Judge Ramsay erred by continuing to

hear Appellee Willing's motion to declare the Appellant as a vexatious

litigant in light of the fact that the Appellant was not allowed to have

witnesses that he chose to testify at the August 19, 2014 hearing to declare
him as a vexatious litigant. The trial court's order of recusal filed into the

trial court's record was defective. The trial court's order of referral filed into



                                       71
the trial court's record was likewise defective. Judge Charles Ramsay was

improperly assigned to hear Appellee Willing's motion by a court

administrator and not a judge. Then finally, Scot Graydon's perjury was fatal

to the order the visiting judge signed on August 19,2014.




                                     72
N.    Issue Eleven:

      Appellee Seanna Willing alleged immunity did not apply and or if
      it did Appellee Willing the trial court erred in not dismissing her
      from the Appellant cause of action


      Appellant argue that Willing's sovereign immunity did not deprive the

trial court of jurisdiction because Appellant alleged that his rights were

violated by Willing pursuant to an unconstitutional law, and action which

did not require the State's consent in order to sue. On page 34 of Appellant's

original petition (CR: Vol 1, P: 38) Drake pleads race discrimination and

conspiracy. Willing's legal counsel admitted on August 19, 2014 that Drake

underlying charges against Appellee Willing were under 42 U.S.C. 1983

violations ofhis constitutional rights (RR: Vol 3 of 4, P: 27, L: 1-9).

      Drake also pled irreparable and continuing harm caused by the actions

of Appellee Seanna Willing (CR: Vol 1, P: 39). In particularly, Appellant

requested that Appellee Willing turn over to the trial court his compliant

against Judge Martin Hoffman (CR: Vol 1, P: 40). Appellant asks the trial

court for a permanent injunction against Willing abusive ways, "Likewise.

Seanna Willing aided and abetted state judge Martin Hoffman in covering up

his discriminative acts against Drake." Willing also assisted Judge Hoffman


                                     73
 in concealing his federal felony offenses, (obstruction ofjustice) thus aiding
 a sitting judge in the commission of an actual felony crime.

       The Appellant requested the trial court to order Appellee Willing to
 properly investigate claims made by him and other nonwhites (CR: Vol 1,

 P: 45). Sovereign immunity generally protects the State from lawsuits for

damages absent legislative consent to sue the State. However, when a party's
rights have been violated by the unlawful acts of a state official or by a state
agent acting pursuant to an unconstitutional law, the suit is not an action

against the State requiring the State's consent. Declaratory relief is the
proper remedy when challenging the constitutionality of a statute and that

"plaintiffs" are not required to obtain the State's consent before suing for
declaratory judgment.

      The trial court never addressed or ruled on Willing's plea to
jurisdiction, as such Willing is not protected by just filing the plea. "The
truth ofthe plaintiff's allegations is at issue only if the defendant pleads and
proves that the allegations were fraudulently made to confer jurisdiction on
the court." Texas State Employees Union/CWA Local 6184 v. Texas

Workforce Comm'n, No. 3-99-171-CV, slip op. at 5. Sovereign immunity
generally protects the State from lawsuits for damages absent legislative

                                      74
 consent to sue the State. See Federal Sign v. Texas S. Univ., 951 S.W.2d

 401, 405 (Tex. 1997). However, when aparty's rights have been violated by
 the unlawful acts of a state official or by a state agent acting pursuant to an
 unconstitutional law, the suit is not an action against the State requiring the
 State's consent. See Texas Workers' Compensation Comm'n v. Garcia, 862
 S.W.2d 61, 72 (Tex. App.-San Antonio 1993), rev'd on other grounds, 893
 S.W.2d 504. This is true even though the judgment may be binding on the
 State. See Id. Because Appellant's rights had been violated by Appellee
Willing, a state official acting pursuant to an unconstitutional statute, he
properly brought suit to remedy the violation or prevent its occurrence.
Printing Indus., 600 S.W.2d at 265-66. Appellee Willing filed a plea to the
trial court's jurisdiction to determine the subject matter of the cause of
action—however, the trial court as stated herein never addressed that issue.

      The Texas Supreme Court has held that private parties may seek
declaratory relief against government officials who allegedly act without
legal or statutory authority. IT-Davy, 74 S.W.3d at 855; see Tex. Educ.
Agency v. Leeper, 893 S.W.2d 432, 37 Tex. Sup. Ct. J. 968 (Tex. 1994).
TEX. CONST. Art. I, § 19. Texas courts have traditionally followed
contemporary federal due process interpretations of procedural due process

                                     75
issues. Univ. ofTex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929, 38

Tex. Sup. Ct. J. 910 (Tex. 1995) see U.S. CONST, amend. XIV. The Texas

Supreme Court has held that, "where a person's good name, reputation,

honor, or integrity is at stake because of what the government is doing to

him, the minimal requirements of due process must be satisfied." Id. at 930

(citing Goss v. Lopez, 419 U.S. 565, 574, 95 S. Ct. 729, 736, 42 L. Ed. 2d

725 (1975)). As already argued, the minimal due process rights of the

Appellant were violated. A plea to the jurisdiction contests the trial court's

authority to determine the subject matter of the cause of action. State v.

Benavides, 772 S.W.2d 271, 273 (Tex. App.—Corpus Christi 1989, writ

denied).

      When an affirmative claim for relief is filed by a governmental entity,

immunity from suit no longer completely exists for the governmental entity.

      The Uniform Declaratory Judgment Act (UDJA) provides a waiver of

sovereign immunity, as in the case of Drake v. Seanna Willing, because

Appellee Willing failed to perform a purely ministerial act [investigate

Judge Hoffman] properly when she possessed absolute proof that Judge

Martin Hoffman treated the Appellant differently than he did white

attorneys. Appellee Willing also had the testimony of an officer ofthe court


                                     76
that testified under oath that Judge Hoffman was hostile toward Appellant

Drake. If Willing's plea to jurisdiction was meant to dismiss the Appellant's

claim against her, then she did not have the right to file a motion to declare

Appellant as a vexatious litigant because the trial court did not have subject

matter jurisdiction over her. However, when Willing filed her motion to

declare Drake as a vexatious litigant, that in itself removed any immunity

because she was seeking affirmative relief outside ofher plea to jurisdiction.

      Traditionally, appellate courts construe the pleadings liberally in favor

ofthe plaintiff, or in this case: the Appellant. Drake's intent was for the trial

court to review Willing's alleged investigation into Judge Martin Hoffman

and for the Appellee Willing to turn over to the trial court all paperwork and

results from that investigation and an order from the trial court—ordering

Willing to investigate nonwhites claims against judges, white judges in

particularly, in a fair and proper manner. Appellee Willing could not had

received better evidence from any complainer than what she received against

Judge Martin Hoffinan, but Willing was still unable to find any need to

correct Hoffman's behavior because of racial discriminative ways against

the Appellant and her conspiring with Judge Hoffman, and her efforts to

cover up Judge Hoffman's criminal behavior of assisting white attorney with

                                      77
their obstruction of justice. These acts waived any immunity that Appellee

Seanna Willing or Judge Martin Hoffinan may have had as a state

employees or officers. Willing's affirmative defense claim of declaring

Appellant as a vexatious litigant waived immunity—thus, Willing's failed to

prove the first prong of Chapter 11 of the Texas Practice & Remedies Code,

because she failed to prove to the trial court that the Appellant could not

prevail against her. Willing only offered the fact of her alleged immunity as

to the reason Appellant could not prevail against her—which in this case,

she does not have immunity and or its waived. (RR: Vol 3 of 4, P: 26, L:

21—25, P: 27, L: 1—15).

      Willing's counsel said in open court that Appellant was suing

Appellee Willing in her individual capacity also, which is true. Graydon

pointed out that in Drake's original petition under prayer, Appellant

requested: "Wherefore, Plaintiff prays for a judgment against Defendants

and each of them as follows." Appellant asked for damages against each

defendant which Willing was included. (CR: Vol 1, P: 47-48). Rather than

ask for another continuance the Appellant requests that the Court orders the

court reporter to amend the transcript. And since Willing is guilty of

conspiring with statejudges, ignoring compelling evidence, and ofracial


                                    78
 discrimination. [Persons sued in their individual capacities, on the other
 hand, may not rely on sovereign immunity protections for claims against
 them in that capacity, although they may assert the defense of official
 immunity.] Appellant argues that Willing conduct was not lawful and that

 she failed the "good-faith" test standard in light of her conduct. In order
 words, a reasonably prudent state official in Willing's position with the
 amount of evidence that the Appellant provided to Willing would not have
came to the same conclusions. "Defendants claiming immunity are subject
to suit if the "plaintiff" sought monetary damages from them in their
individual capacity. Id. and n. 10. Brown v. Brown, U.S. Court of Appeals
6th Cir. 1990 U.S. App. Lexis 21851. Neither the trial court nor judge
Charles Ramsay failed to resolve the Appellant's injunction or declaratory
issues or addressed Appellee's plea to jurisdiction or before declaring him a
vexatious litigant. An applicant for a temporary injunction must establish
that the party has aprobable right to the relief sought and that the party will
suffer aprobable injury in the interim, pending atrial on the merits. Walling
v. Metcalfe, 863 S.W.2d 56, 57, 37 Tex. Sup. Ct. J. 18 (Tex. 1993); City of
Friendswood v. Registered Nurse Care Home, 965 S.W.2d 705, 707 (Tex.
App.-Houston [1st Dist.] 1998, no pet.).

                                     79
      There is no question that Appellee Willing will engage in the same

discriminative ways, not only toward Appellant but most likely toward any

nonwhites who complain about white state judges, and non-attorneys who

may file claims in her office against state judges. There is more than a

probability that the Appellant will suffer future and similar harmful conduct

and scheming by Appellee Willing's if a court does not issue an injunction

against her. And finally an injunction is an equitable remedy, not a cause of

action—thus, Willing failed to prove that Appellant could not prevail against

her in an equitable remedy. Brown v. Ke PingXie, 260 S.W.3d 118, 122

(Tex. App.—Houston [1st Dist.] 2008, pet. denied). A state official does not

enjoy immunity when he or she has committed crimes or assisted others like

Judge Hoffman in his aiding of obstruction ofjustice, by impeding or hiding

or assisting Judge Hoffman by not properly investigating a criminal act by a

state judge which is her duty. Willing became part of Judge Hoffman's

crime by her actions which grants her no immunity for those actions. She

vacated her immunity and suffocated her reasons she provided the trial court

as to why the Appellant could not prevail against her (RR: Vol 3 of 4, P: 26,

L: 21—25, P: 27, L: 1—15).


                                     80
       In closing the trial court further erred in the following additional

ways: (1) the trial court erred when it signed the order declaring Drake a

vexatious litigant when Appellant received notice that the court had singed

his motion for nonsuit and Willing's motion was not on the court's docket.

Appellant did not receive proper notice; (2) the trial court erred when it

signed the order declaring Appellant a vexatious litigant because the trial

court had a ministerial duty to ensure that the Appellant was provided with

the requisite advance notice of that hearing pursuant to section 11.053(a) of

the Texas Civil Practice and Remedies Code—this did not occur in

Appellant case; (3) the evidence was legally and factually insufficient to

support the trial court's order declaring Drake a vexatious litigant because

Willing failed to comply with the first prong ofthe Tex. Civ. Prac. & Rem.

Code and for all other reasons cited herein; (4) the trial court erred when it

failed to file the requested findings of fact and conclusions of law (CR: Vol

1, P: 604—606); (5) the trial court erred when it failed to have a hearing on

Appellant motions to reconsider the trial court's orders declaring Drake a

vexatious litigant (CR: Vol 1,608—639); (6) the trial court erred as a matter

of law when it signed the orders declaring Drake a vexatious litigant because
it failed to apply the "liberal construction" standard to hispleadings.


                                      81
                               CONCLUSION




       The trial court failed in the ways described herein to even conduct

reasonably impartial hearings in regards to the Appellant Drake.

       Appellee Willing did not meet its burden in establishing that

Appellant had no reasonable probability of success in prevailing against her,

which is the first prong in declaring a plaintiff vexatious, pursuant to
Chapter 11 ofthe Texas Practice & Remedies Code.

      The Trial Court erred and abused its discretion in the ways described

as pled herein, which were substantial. The visiting judge, Charles Ramsay

had no authority to sign orders or act on Appellee Willing's motion to

declare him vexatious. Appellant Drake requests that the Court vacate the

following orders that were signed on August 19, 2014 pursuant to cause

number: D-l-GN-14-001215, which would include all orders the Appellant

has directed this Court to in this brief, including: the August 19, 2014 order

declaring Appellant Drake as a vexatious litigant with prefiling order; the

August 19, 2014 orders of referral and recusal that this Court has been

directed to in this brief, and that these orders should be stricken from the

record and vacated for the reasons pled herein.


                                     82
      Appellant finally requests all and any other relief that the court may

grant him that he may show justification.




                                             Respectfully submitted,




                                            Appellant
                                             Pro-Se
                                             P.O. Box 833688
                                             Richardson, Texas 75083
                                             214-477-9288




                                     83
                      CERTIFICATE OF SERVICE


      I hereby certify that on March 2, 2015, I served the foregoing
"APPELLANT' BRIEF," by causing one paper copy Hand Delivered to the
Clerk of the Court of the 3rd Court of Appeals Austin, and one copy was
delivered to Appellee Willing legal counsel, Scot Graydon by U.S. mail. All
other parties named herein advised Appellant that they were not a part ofthis
appeal because Appellant filed a motion for nonsuit and it was granted.


Scot Graydon
          •TH
300 West 151" Street, Ste 2
Austin, Texas 78701
512-475-4413

David Harris [Refused copy because case nonsuited at trial level]
300West 15™ Street, Ste 2
Austin, Texas 78701
Telephone: 512-475-4413
Kastl Law P.C. [Refuse to respond-//**/**/ delivered copy]
4144 N. Central Expressway
Ste 300, Dallas, Texas 75204
Telephone: 214-821-0230
Vikki Ogden [Frank Waite refused copy because case nonsuited at trial]
411 Elm Street, Ste 500
Dallas, Texas 75202
Telephone: 214-653-7568




                                            Appellant Drake



                                    84
                 CERTIFICATE OF COMPLIANCE




1. EXCLUSIVE OF         THE EXEMPTED PORTIONS,                 THE BRIEF
CONTAINS 14.980 words.


2. THE BRIEF HAS BEEN PREPARED:


     A. In proportionally spaced typeface using:
        Software Name and Version: Microsoft Word 2008

        in Times Roman font, 14 point for text and 12 point for footnotes.




                                             Lppellant Drake
                                           Pro-se




March 2,2015




                                    85
         APPELLANT'S APPENDIX EXHIBITS
     ACTUAL EXHIBIT'S ARE SUBMITTED TO THIS
       COURT IN A SEPARATE BOUND FOLDER
1.    EXCERPT FROM APPELLANT'S ORIGINAL PETITION FILED
      IN THE TRIAL COURT SHOWING THAT APPELLANT SUED
      WILLING AS AN INDIVIDUAL (REQUESTING DAMAGES);
2.    EXCERPT FROM DEFENDANT SEANNA WILLING MOTION
      HER (CERTIFICATION OF CONFERENCE) WHERE WILLING
      ATTORNEY SCOT GRAYDON WAS UNTRUTHFUL TO THE
      TRIAL COURT IN SAYING THAT HE CONFERENCE WITH
      APPELLANT    AND   DRAKE    RESPONDED   BY   SAYING,
      "PLAINTIFF IS OPPOSED;"
3.    SHAM ORDER OF REFERRAL BY TRIAL COURT;
4.    SHAM ORDER OF RECUSAL BY TRIAL COURT;
5.    ORDER ON APPELLANT'S MOTION FOR NONSUIT;
6.    APPELLANT'S MOTION FOR NONSUIT;
7.    APPELLEE'S   ORDER    DECLARING   APPELLANT   AS   A
      VEXATIOUS LITIGANT;
                             86
8.   APPELLANT   AMENDED     RESPONSE   TO    APPELLEES

     DECLARING HIM AS A VEXATIOUS LITIGANT;

9.   RECORDERS RECORD OF THE AUGUST 19, 2014 HEARING

     TO DECLARE APPELLANT AS A VEXATIOUS LITIGANT

     BEFORE JUDGE CHARLES RAMSAY.




                        87
   No:03-14-00665-CV

     IN THE COURT OF APPEALS FOR
 THE THIRD JUDICIAL DISTRICT OF TEXAS
            AT AUSTIN, TEXAS


                ERIC DRAKE


                      Plaintiff-Appellant
                     v.



        KASTL LAW FIRM P.C. ET AL               f^ECEiVED
                     Defendant—Appellee



ON APPEAL FROM THE 200™ DISTRICT COURT
     TRAVIS COUNTY, AUSTIN, TEXAS
      Trial Court No. D-l-GN-14-001215



    APPENDIX EXHIBITS


                                               Eric Drake
                                                   Pro-Se
                                                Appellant
                                            PO Box 833688
                                 Richardson, Texas 75083
                                             214-477-9288



      ORAL ARGUMENT REQUESTED




                                                            </
                           AFFIDAVIT OF ERIC DRAKE


      STATE OF TEXAS   §
                       §
      COUNTY OF DALLAS §


prj


             BEFORE ME, the undersigned authority, came and appeared ERIC
£»|
      DRAKE, who being duly sworn, stated as follows:

IS
             "My name is ERIC DRAKE. I am above the age of eighteen years of
      age and I am fully competent to make this affidavit. I am the Appellant in
      this appeal. I have reviewed the Court's file in this matter. I have personal
      knowledge of the facts stated herein and such matters are true and correct.
      Specifically, I swear and/or affirm that the attached are true and correct
      copies of the following under the penalty of perjury:


                      APPENDIX EXHIBITS

        1.    EXCERPT FROM APPELLANT'S ORIGINAL PETITION FILED


«             IN THE TRIAL COURT SHOWING THAT APPELLANT SUED


               WILLING AS AN INDIVIDUAL (REQUESTING DAMAGES);

1       2.    EXCERPT FROM DEFENDANT SEANNA WILLING MOTION
              HER (CERTIFICATION OF CONFERENCE) WHERE WILLING

r             ATTORNEY SCOT GRAYDON WAS UNTRUTHFUL TO THE
I          TRIAL COURT IN SAYING THAT HE CONFERENCE WITH

           APPELLANT    AND   DRAKE   RESPONDED      BY   SAYING,

p          "PLAINTIFF IS OPPOSED;"

      3.   SHAM ORDER OF REFERRAL BY TRIAL COURT;


*•»   4.   SHAM ORDER OF RECUSAL BY TRIAL COURT;


*     5.   ORDER ON APPELLANT'S MOTION FOR NONSUIT;


r     6.   APPELLANT'S MOTION FOR NONSUIT;

pi
      7.   APPELLEE'S   ORDER    DECLARING   APPELLANT     AS   A


           VEXATIOUS LITIGANT;


      8.   APPELLANT    AMENDED      RESPONSE   TO    APPELLEES


           DECLARING HIM AS A VEXATIOUS LITIGANT;
ipi




      9.   RECORDERS RECORD OF THE AUGUST 19, 2014 HEARING

si         TO DECLARE APPELLANT AS A      VEXATIOUS LITIGANT


           BEFORE JUDGE CHARLES RAMSAY
si
FURTHER AFFIANT SAYETH NOT.




                                                    Eric Drake




                                                    +A
    Subscribed and sworn to me on this the   oJS>        day of February, 2015 to certify

which, witness my hand and seal of office.




                                             NOTARY PUBLIC IN AND FOR
                                             THE STATE OF TEXAS




                                                                           KEVIN BILOTTI
                                                                        MyCommission Expires
                                                                         December 12, 2018
      Exhibit"!"
Excerpt from Appellant's Original Petition
        Filed with the Trial Court
    .^alleged for all purposes andincorporated herein with the same force andeffect as se forth

verbatim. Plaintiff further shows as follows:

        a).       By extreme and outrageous behavior of depriving the Plaintiffof a just and fair

                  timely settlement by resorting to misrepresenting facts, and fraud.

        b).       By extreme and outrageous behavior ofKastl law firm as pled herein;

        c).       By extreme and outrageous behaviorofVikki Ogden's as pled herein;

        d).       By extreme and outrageous behaviorofCRCB as pled herein;

        e).       By extreme and outrageous behavior ofCarl Ginsberg's as pled herein;

           f).    Defendants conduct proximately caused severeemotional distress to the Plaintiff;

        g).       Plaintiff's severe emotional distress cannot be remedied by any other cause of

                  action.

        h).       Defendant's wrongful conduct caused the damages named herein, and those

                  damages were intentionally sought by the Defendant to cause increasedpain.

           112.   As a result of the above Defendants intentional inflictions to the Plaintiff, the

Plaintiff has suffered, and will continue to suffer, actual damages, loss income and benefits,

humiliation and emotional distress. Plaintiff has no adequate remedy at law and therefore

declaratory and injunctive relief is appropriate to redress the wrongs committed by the above

Defendants. The intentional emotional distress cause by the Defendants were aggravated by the

kind of willfulness, conspired, wantonness, fraud, malicious acts, fraud committed through

interstate commerce, willingness to make false and misleading statements, and malice for which

the law allows imposition ofexemplary damages.


                                      PARYER FOR RELIEF



           Wherefore, Plaintiff prays for a judgment against Defendants and each of them as

follows:


PLAINTIFFS ORIGINAL PETITION/REQUEST FOR INJUNCTIVE RELIEF                                PAGE 43




                                                                   47
        i.      Special damages for Plaintiff Eric Drake in an amount to be determined at trial;

        2.      General damages for Plaintiff Eric Drake in an amount to be determined at trial;

        3.      Punitive Damages in an amount to be determined at trial;

        4.      Cost of suit;

        5.      Attorney fees for preparationand trial;

        6.      Attorney fees ifthere is to be an appeal to the Supreme Court ofTexas;

        7.      Incidental damages;

        8.      Past mental anguish;

        9.      Future mental anguish;

        10.     Past and future emotional distress;

        11.     Prejudgment interest;

        12.     For such other and further relief as the court deems just and proper.



DEMAND FOR JURY TRIAL

        Plaintiff hereby demands trial by jury as to all issues.



PRAYER

        WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Defendants be cited

to appear and to answer herein and that upon final hearing, the Court enter judgment in favor of

Plaintiff and against each and every Defendant in the above entitled, numbered and styled cause

of action for compensatory damages, punitive damages, attorney fees, cost of court, pre-and post

judgment interest at the highest rate allowed by law and for such other further relief, general and

special at law and in equity to which Plaintiff may be justly entitled.




PLAINTIFFS ORIGINAL PETITION/REQUEST FOR INJUNCTIVE RELIEF                               PAGE 44




                                                                   48
             Exhibit "2"
        Excerpt from Defendant Seanna Willing's
       Motion, (Certification of Conference) where
  Scot Graydon is untruthful to the trial court in making
        The statement that "Plaintiff is opposed"


Scot Graydon never asked that important question to Drake
p^i?




                                                          P.O. Box 12548, Capitol Station
                                                         Austin, Texas 78711-2548
r                                                         (512) 463-2120/FAX (512) 320-0667

                                                         Attorneys for Defendant Seana Willing




                                   CERTIFICATE OF CONFERENCE


              At 9:50 p.m. on August 6, 2014, the undersigned conferred in person in court with Mr.
       Eric Drake, PlaintiffPro Se, regarding the underlying Motion and the setting ofthe hearing, and
       while Plaintiff is opposed to Defendant Seana Willing's Motion to Declare Eric Drake a
       Vexatious Litigant, he indicated that he was aware of the hearings on the various Motions to
       Declare Him a Vexatious Litigant set on August 19, 2014 at 9 a.m. at the address in this
I      Supplemental Notice. Mr. Drake was provided with a copy of Defendant Seana Willing's
       Motion to Declare Eric Drake a Vexatious Litigant and the original Notice ofHearing for that
       Motion, and he indicated that he would be physically present in court for the hearings on that
P      date.
                                                           /s/ Scot M. Graydon
                                                          SCOT M. GRAYDON
                                                         Assistant Attorney General




Ml




W\




                                                                                                         518
   Exhibit "3"
Sham Order of Referral by trial court
Notice sent: Final Interlocutory None_      DC               BK14240 PG83

Disp Parties..
Dlspcode: C^
Redact pbs:

Judge, g/| M - Clerk___£ZL               CAUSE NO. D-l-GN-14-001215
                                                                                            ii               0. -
         ERIC DRAKE                                      §      IN THE DISTRICT COURT OF    •*-• I—
                                                                                                       CD
                                                                                                             o
                                                                                                       CM
                        Plaintiff;                       §                                                       s
                                                                                                       (33
                                                         §                                                       Si
         v.                                              §             TRAVIS COUNTY, TEXASSJ
                                                                                                 o
                                                                                                       CD
                                                                                                             0
                                                                                             _    >
                                                         §                                                       o
                                                                                                                 &
         KASTL LAW P.C., ET AL                           §                                       !*S
                                                         §                                  uu               ~       E

                        Defendant.                       §             200TH JUDICIAL DISTRICT




                               Order of referral t o regional presiding judge




                 The Court, having today received Mr. Eric Drake's attached motion, ORDERS that
         Plaintiffs' Motion to Recuse is referred to the Regional Presiding Judge.



                 Signed this 19th day of August, 2014.




                                                                                                             546
HsJ




P*



PS(




        Exhibit "4"
      Sham Order of Recusal by trial court
si




r



mi




i




r

r
Notice sent Final interlocutory None            DC             BK14240 PG78




                        jazz-
                                          CAUSE NO: D-l-GIN-14-001215


           ERIC DRAKE                                     §         IN THE DISTRICT COURT
                                                          §
                                    Plaintiff             §         TRAVIS COUNTY, TEXAS

          VS
                                                          §
                                                          §§        200™ JUDICIALDISTRICT
           KASTL LAW P.C. ET AL

                                    Defendants



                                  ORDER ON PLAINTIFF'S MOTION TO RECUSE



                           After considering Plaintiffs Eric Drake, Motion to Recuse the response, the

           pleadings and arguments of counsel, the following judges: Samuel T. Biscoe, Ron Davis, Bruce

           Todd,GeraldDaugherty, MargaretGomez;DavidPhillips, Eric Shepperd, Scott Jenkins, Rhonda

           Hurley, Darlene Byrne, GiselaD. Triana, Amy ClarkMeachum, John K. Dietz, Lora Livingston,

           Stephen Yelenosky, Tim Sulak, Orlinda Naranjo, James L. Arth, Leonard Saenz, J. Andrew
           Hathcock, John Hathaway, John Lipscombe, Mike Denton, Nancy Hohengarten, Brandy Mueller,

           Elisabeth A Earle, Carlos H. Barrera, Cliff Brown, David Wahlberg, Karen Sage, David Crain,

           Julie Kocurek, Brenda Kennedy, Jim Coronado, and Leon Grizzard.


                       o   AGREES to recuse herself or himself

                       o   REFUSES to recuse herself or himself and refer this motion to another judge to

                           hear the matter.



                    Signed this     f\ day of (AA^y^iJ.                       j 2014, Austin, (Travis County)

           Texas.




                                                         HONO


           Solo Page




                                                                                                                545
IfSV




pS




            Exhibit "5"
       Order on Appellant's Motion for Nonsuit


s?




fs




p?»




ps\




p,
                           DC               BK14231 PG367                            R!td InThe DistrictCourt
                                                                                      of Travis County, Texas
                                                                                 EM AUG H 20ft
                                  CAUSE NO: D-l-GIN-14-001215
                                                                                     At        OpCtI        Pn
  ERIC DRAKE                                        §          IN THE DlSTRl6T%?glftBW*efl<te^
                           Plaintiff                          TRAVIS COUNTY, TEXAS

  VS



  KASTL LAW P.C. ET AL                                         200™ JUDICIAL DISTRICT

                           Defendants




                  ORDER ON PLAINTIFFS MOTION FOR NONSUIT

    •Having reviewed Um Plaintiffs motlort for nonSUlt, MM the fan Uiat lite DUindnnti did.
t conftmnci witli Uiu PlalHUff pi101' 10 filing Uipii motions iulu Un Cowl's leTiUwhv         m ' /     *    tu ,./

     THE COURT GRANTS Plaintiffs motion for nonsuit, nonsuiting all defendants in the
 ve entitled, numbered, and styled cause of action.



       This the   n     _day of August, 2014, Austin (Travis County) Texas.




                                                HONORABLE




                                              Nntfcrc ncrr    Hnrri—Inter lotuluiy    None
                                              Disp Parties:    A U
                                              Dlspcode: cvo/as HUl^C
                                              Redact pgs:          ZH                     -
                                              Judge_LiL_              Clerk l2^T



                                                                                                            544
rss




R5\




R0b




{SSI




       Exhibit "6"
       Appellant's Motion for Nonsuit


(S5>




rSI




^*f




r



fiw
                                 CAUSE NO: D-l-GIN-14-001215

  ERIC DRAKE                                       §       IN THE DISTRICT COURT g £
                                                   §
                          Plaintiff                §       TRAVIS COUNTY,TEXAS g^
                                                                                          "to c
                                                   §
  VS                                               §                                      ClO

                                                   §                                      .- >
                                                   §                                        .2
  KASTL LAW P.C. ET AL                             §       200
                                                                TH
                                                                     JUDICIAL DISTRICT £
                                                                                         •= o


                           Defendants


                          PLAINTIFFS MOTION FOR NONSUIT




TO HONORABLE SAID JUDGE:

       COMES NOW, Plaintiff, Eric Drake and respectfully moves this Court for nonsuit of the
above cause of action without prejudice.

        1.      Defendants have filed several motions with the Court Motions to transfer,
motions to determine the Plaintiff as a vexatious litigate and motions to change venue. None of
the defendants conferenced with the Plaintiff prior to filing their motions with the Court, thus
violating the local rules. And because there are no pending motions that the Court can hear, for
the reason that defendants motions were Hied improperly and in violation of the local rules and
TRCP, Plaintiff nonsuit motion should be granted or he wiU file appeal to correct.

        2.      Plaintiff finds that the Court have possibly conspired against him with the
defendants. Since the defendants have failed to conference with the Plaintiff the Court must deny
their motions, though they may re-file but their refilling will come too late. Plaintiff therefore
files this nonsuit without prejudice. Plaintiff has not witnessed such corruption as in Travis
County courts judges which exceeds Dallas County, and those issues will addressed with further
litigation.

        WHEREFORE, PLAINTIFF, Eric Drake pray that the Court nonsuit the above cause of
action without prejudice of its refilling.



                                                        Respectfully submitted;




                                                        Eric Drake

                                                        PO Box 25565, Dallas, Tx 75225

                                                        214-477-9288




                                                          527
                                    CERTIFICATION OF CONFERNECE


        Plaintiff attempted to conference with defendants and or their respected attorneys but was
unable to reach them regarding the Plaintiffs motion for nonsuit. Plaintiff files this motion for nonsuit
for the Court's consideration.




                                                        Eric Drake




                                   CERTIFICATION OF SERVICE



           I HEREBY certify that a true and correct copy of the foregoing document has been

   delivered to the opposing attorneys of record via US Mail on this the         />£— of August,
   2014.




                                                   Eric Drake




                                                                 528
   Exhibit "7"
Appellees Order Declaring Appellant
       As a vexatious litigant
                                 DC             BK14237 PG16




                                                                                            ^ ,„     S&£ 1
                               CAUSE NO. D-l-GN-14-001215                                   og       S*
ERIC DRAKE,                                 §             IN THE DISTRICT COURT OF | f S
       Plaintiff,                           §                                               Qo Z?
                                            §                                                 w)    CO
v.                                          §                  TRAVIS COUNTY, TEXAS eg ^
                                            §                                               "§£            1*1
KASTL LAW P.C., SEANA                       §                                               1°            <I
WILLING, CARL GINSBERG, AND                 §
THE COURT OF REPORTERS                      §
CERTIFICATION BOARD.                        §
       Defendants.                          §                  2001" JUDICIAL DISTRICT

               ORDER DECLARING PLAINTIFF A VEXATIOUS LITIGANT

        On August 19, 2014, in accordance with Tex. Civ. Prac. & Rem. Code § 11.053, this

Court held a hearing on Defendant Seana Willing's Motion to Declare Eric Drake a Vexatious

Litigant. Plaintiffhas filed a Motion to Recuse and seeks to recuse every DistrictJudge in Travis


County-                                          cJ^^^l*M u ^'^cecviZ
        In accordance with Tex. R. Civ. P. 18a(f)(2)(A), thia Court-"must take no further action
                                                                    A
in the case until the motion has been decided, except for good cause stated in writing or on the

record."

        This Court FINDS that good cause exists for hearing Defendant Seana Willing's Motion

to Declare Eric Drake a Vexatious Litigant, noticed for hearing on August 19, 2014 at 9 a.m.

The good cause supporting proceeding with said Defendant Seana Willing's Motion to Declare

Eric Drake a Vexatious Litigant includes the following:

     1. Plaintiff Eric Drake was notified that on August 19, 2014, multiple motions to

        have him declared a vexatious litigant were set to be heard, including Defendant

        Seana Willing's Motion to Declare Eric Drake a Vexatious Litigant;

     2. The purpose of the vexatious litigant statute is to prevent abuse of the judicial




                                                                                                    547
                                          DC               BK14237 PG17




          system bypro se litigants1;
     3. Plaintiff Eric Drake filed a Motion for Non-Suit on August 7,2014, beginning the

          30 day plenary jurisdiction ofthe trial court;

     4. Plaintiff Eric Drake filed a Motion to Recuse on August 7, 2014, seeking recusal

          of "all judges so that the judge that have (sic) ruled improperly against him does

          not continue his or her abusive behavior." (Plaintiffs Motion to Recuse, page 2,

          II4);

     5.   Plaintiff Eric Drake's Motion to Recuse is defective on its face in that it:

               a. is based solely on the judge's rulings in the case (Plaintiff's Motion to

                   Recuse, page 1,^4 [second ^J 4 on that page] ); and

               b. does not state with detail and particularity facts that would be sufficient to

                  justify recusal;

     6. In the event that this Court does not proceed with the hearing on August 19, 2014,

          it is likely that the recusal process will allow Plaintiff Eric Drake to evade the

          purposes of the vexatious litigant statute by allowing him to improperly exhaust

          the trial court's plenary jurisdiction; and

    7. Plaintiff Eric Drake has additionally demonstrated the bad faith of his Motion to

          Recuse and this litigation as a whole by stating his intent to file suit against the

          spouses of District Judges in Travis County as well as the spouses of other state

1 In enacting Chapter 11 of the Texas Civil Practice and Remedies Code, Texas legislature sought to strike a
balance between Texans' right of access to their courts and the public interest in protecting defendants from those
who abuse the Texas court system by systematically filing lawsuits with little or no merit. Drum v. Calhoun, 299
S.W.3d 360,364 (Tex.App.-Dallas 2009, pet. denied). Additionally, purposeofthe statute is to make it possible for
courts to control their dockets rather than permitting courts to be burdened with repeated filings of frivolous and
malicious litigation by litigants without hope of success while, at the same time, providing protections for litigants'
constitutionalrights to open courts when they have genuine claims that can survive the scrutiny ofthe administrative
judge and the posting of security to protect defendants. In re Potts, 399 S.W.3d 685, 688 (Tex.App.Houston [14th
Dist.] 2013, orig. proceeding) citing In re Potts, 357 S.W.3d 766, 768 (Tex.App.-Houston [14th DisL] 2011, orig.
proceeding).



                                                                                                                          548
                                  DC             BK14237PG18




       officials in an effort to evade any immunitiesthat attach to those officials;

   8. Plaintiff Eric Drake brought his Motion to Recuse without sufficient cause and

       solely for the purpose of delay, specifically to exhaust the trial court's plenary

       jurisdiction without allowing the trial court to consider DefendantSeana Willing's

       Motion to Declare Eric Drake a Vexatious Litigant;

   9. In the event that the Motion to Recuse is later granted, any order related to

       Defendant Seana Willing's Motion to Declare Eric Drake a Vexatious Litigant

       can be vacated, so no irreversible harm exists in hearing the matter.

   Accordingly, this Court FINDS that good cause exists to hear Defendant Seana Willing's

Motion to Declare Eric Drake a Vexatious Litigant on August 19, 2014 at 9 a.m. and the Court

having reviewed the motion, pleadings, the law, evidence and arguments of all parties, enters the

following order:

       On April 28, 2014, Eric Drake filed this lawsuit, claiming federal civil rights violations

against Defendant Seana Willing, alleging violations of 42 U.S.C. §§ 1983. Eric Drake also

made multiple claims against other defendants in this litigation.

       In the instant suit, Eric Drake makes the conclusory assertion that although Defendant

Seana Willing conducted an investigation initiated by Eric Drake, including evidence provided

by Eric Drake, because Eric Drake did not like the outcome of the investigation, "Plaintiff

identifies the following rights he opines were violated: "the Plaintiff (sic) First Amendment

Rights have been violated, his Equal Protection Rights have been violated, his Due Process

clause." (Complaint %97).




                                                                                                    549
                                  DC             BK14237 PG19




       These assertions are unaccompanied by the pleading of any specific allegation of what

legal interest he has in the outcome of an investigation by a state agency, or howthe actions of

Seana Willing deprived him of a constitutionally protected interest.

       Despite the absence of such allegations of fact, Eric Drake seeks monetary damages and

injunctive relief requiring Seana Willing to provide this Court with the complaintmade by Eric

Drake and to justify to this Court the administrative determination ofthe Texas Commission on

Judicial Conduct regardinga specific complaint. Eric Drake does not identify any legal authority

that allows for a judicial review of such an investigation, nor does he explain how this Court

should have jurisdiction to evaluate the judicial conduct of another district judge, when such

jurisdiction is providedunder Article V, sec. l-a(10) ofthe Texas Constitution to reside with the

Commission on Judicial Conduct.

       Accordingly, there is not a reasonable probabilitythe plaintiff will prevail in the litigation

against Seana Willing.

       Over the last seven years, Eric Drake has filed this and commenced, prosecuted, or

maintained as a pro se litigant numerous other litigations other than in small claims court that

have been finally determined adversely to him. These include, but are not limited to the

following litigations finally determined adversely to "Eric Drake":

       1.      Eric Drake v. Travelers Indemnity Company and Consumer CountyMutual
               Insurance Co., In the United States District Court for the Eastern District of
               Texas, Marshall Division; Civil Action No. 2:1l-CV-318;

       2.      Eric Drake v. Travelers Casualty Insurance Co., et al., In the United States
               District Courtfor the Eastern District of Texas, Marshall Division; Civil Action
               No. 2.1I-CV-516;

       3.      Eric Drake v. Bank ofAmerica, In the United States DistrictCourt for the Eastern
               District ofTexas, Marshall Division; Civil Action No. 2:1l-CV-515;

       4.      Eric Drake v. Travelers Indemnity Company and Consumer County Mutual




                                                                                                        550
                         DC            BK14237 PG20




      Insurance Company; In the United States District Court for the Western District
      of Texas, San Antonio Division; Civil Action No. 5:12-CV-00346;

5.    Eric Drake v. Mary Smith, et al; In the United States District Court for the
      Western District of Texas, Waco Division; Civil Action No. W-12-MC-152;

6.    Eric Drake v. Wendell Withrow, et al; In the United States District Court for the
      Eastern District ofTexas, Marshall Division; Civil Action No. 2:1 l-CV-303;

7.    Eric Drake v. Mercedes Benz U.S.A.; In the United States District Court for the
      Eastern District of Texas, Marshall Division; Civil Action No. 2:12-CV-00041;

8.    Eric Drake v. Robert Burns, et al; In the United States District Court for the
      Southern District ofTexas, Houston Division; Civil Action No. 4:09-MC-606;

9.    Eric Drake v. Penske Truck Leasing Co., L.P., Navistar International Corp.,
      Gallagher Basset Services, Inc.; In the United States District Court for the Eastern
      District ofTexas, Marshall Division; Civil Action No. 2:1 l-CV-00183;

10.   Eric Drake v. Penske TruckLeasing Co., LP., et. al.; In the United States District
      Court for the Eastern District of Texas, Sherman Division; Case No. 4:12-CV-
      264;

11.   In re: Eric Drake; In the United States District Court for the Eastern District of
      Texas, Sherman Division; Case No. 4:1 l-MC-037;

12.   In re: Eric Drake; In the United States District Court for the Eastern District of
      Texas, Sherman Division; Case No. 4:1 l-MC-043;

13.   In re: Eric Drake; In the United States District Court for the Northern District of
      Texas, Dallas Division; Case No. 3:13-MC-078;

14.   In re: Eric Drake; In the United States District Court for the Southern District of
      Texas, McAllen Division; Action No. 7:14-MC-669;

15.   Eric Drake v. Kristina Nadine Kastl, et. al; In the 193rd District Court of Dallas
      County, Texas; Cause No. DC-13-14911;

16.   Eric Drake v. Wendell Withrow, et. al; In the 191st District Court of Dallas
      County, Texas; Cause No. DC-12-03942;

17.   Eric Drake v. Consumer County Mutual Insurance Co.; In the 44th District Court
      of Dallas County, Texas; Cause No. DC-09-04284;

18.   Eric Drake v. Kristina Nadine Kastl, et. al; In County Court at Law No. 5 of
      DallasCounty, Texas; Cause No. CC-13-03247;




                                                                                             551
                                   DC             BK14237 PG21




        19.    Eric Drake v. James Selaiden; In County Court at Law No. 3 of Tarrant County,
               Texas; Cause No. 2013-005772-3;




       20.     Eric Drake vs. United States ofAmerica; In the United States District Court for
               the Middle District of Louisiana, Baton Rouge Division; Civil Action No. 3:12-
               cv-00372; and

       21.     Eric Drake vs. St. Paul Travelers Insurance, et al; In the United States District
               Court for the Eastern District of Texas, Tyler Division; Civil Action No. 6:08-
               CV-301.


       In addition, over the last seven years, Eric Drake has commenced, prosecuted, or

maintained as a. pro se litigant the following litigations other than in small claims court that have

been finally determined adversely to him under the name "Eric Von Drake":


       22.     Eric Von Drake, In the United States District Court for the Northern District of
               Texas, Dallas Division; Civil Action No. 3.08-MC-064;

       23.     In re: Eric Von Drake, In the United States District Court for the Northern
               District ofTexas, Fort Worth Division; Civil Action No. 4-.08-MC-023;

       24.     Eric Von Drake vs. Edgar Lynn Rogers, et al; In the United States District Court
               for the Western District of Louisiana, Shreveport Division; Civil Action No. 08-
               0038; and

       25.     In re: Eric Von Drake; In the United States District Court for the Western District
               of Texas, Austin Division; Action No. 1:08-MC-717.


       Further, Eric Drake has previously been declared to be a vexatious litigant by a state or

federal court in an action or proceeding based on the same or substantially similar facts,

transition, or occurrence. As with this instant litigation, a substantial part of the litigations

identified supra arise out of the common occurrence of a car accident in February of 2007 and

the litigation that followed. In three ofthe litigationsthat arose out of these same or substantially




                                                                                                        552
                                  DC             BK14237 PG22




similar facts, transition, or occurrence, a federal judge declared Eric Drake a vexatious litigant.

These cases are:


       1.      Eric Drake v. Travelers Indemnity Company and Consumer CountyMutual
               Insurance Co., In the United States District Court for the Eastern District of
               Texas, Marshall Division; Civil Action No. 2:1 l-CV-318;

       2.      Eric Drake v. Travelers Casualty Insurance Co., et al, In the United States
               District Courtfor the Eastern District of Texas, Marshall Division; Civil Action
               No.2:ll-CV-516;and

       3.      Eric Drake v. Bank ofAmerica, In the United States District Court for the Eastern
               District of Texas, Marshall Division; Civil Action No. 2:1 l-CV-515.


       Despite repeated warnings from both state and federal courts, Eric Drake has

commenced, prosecuted, and maintained the instant litigation as a pro se litigant against

Defendant Seana Willing and other defendants, arising out of litigation following the February of

2007 car accident.


       Courts cannot allow litigants to abuse the judicial system and harass their victims without

consequence. Accordingly, the Court FINDS that Eric Drakeis such a litigant and his conduct is

subject to review and action by this Court.

       Chapter 11 of the Civil Practice And Remedies Code, provides this Court with the

authority to prevent Eric Drake from using the judicial system to retaliate against and harass

Defendant Seana Willing or any other party.

                                              Order


       Chapter 11 of the Texas Civil Practice And Remedies Code governs suits brought by

vexatious litigants. The Court may, on defendant's motion or sua sponte, designate a party as a

vexatious litigant. Tex. Civ. Prac. Rem. Code § 11.101.




                                                                                                      553
                                   DC            BK14237 PG23




       A party may be declared a vexatious litigant if there is not a reasonable probability that

he will prevail in litigation and the party has either (1) in the seven-year period immediately

preceding the date the defendant makes the motion under Section 11.051, has commenced,

prosecuted, or maintained at least five litigations as a pro se litigant other than in a small claims

court that have been finally determined adversely to the plaintiff or (2) the plaintiff has

previously been declared to be a vexatious litigant by a state or federal court in an action or

proceeding based on the same or substantially similar facts, transition, or occurrence. Tex. Civ.

Prac. Rem. Code § 11.054 (1) and (3).

       As discussed above, Eric Drake does not allege or produce any evidence to establish a

waiver of the sovereign immunity of Defendant Seana Willing with respect to his claims, nor

does Eric Drake have standing to bring any cause of action against Defendant Seana Willing.

       Accordingly, after reviewing the record and all the pleadings in the case, this Court

FINDS that there IS NOT a reasonable probability that Eric Drake will prevail.

       The Court also FINDS that Eric Drake has in the seven-year period immediately

preceding the date the defendant makes the motion under Section 11.051, has commenced,

prosecuted, or maintained at least five litigations as apro se litigant other than in a small claims

court that have been finally determined adversely to Eric Drake.

       The Court also FINDS that Eric Drake has previously been declared to be a vexatious

litigant by a state or federal court in an action or proceeding based on the same or substantially

similar facts, transition, or occurrence.

       The Court ORDERS that ERIC DRAKE is prohibited from filing pro se any new

litigation in a court in this state, under the name "Eric Drake," "Eric Von Drake," or any

other name, without first being granted permission to file by the local administrative judge,


                                                  8

                                                                                                        554
                                 DC           BK14237 PG24




pursuant to Tex. Civ. Prac. Rem. Code § 11.101. Such permission shall be granted only if the

litigation appears to have merit and is not filed for purposes of harassment or delay; such

permission may also be conditioned on the furnishing of a security.

       ERIC DRAKE is hereby NOTIFIED that he is subject to punishment pursuant to the

inherentpowers ofthe court or by contempt if he fails to obey this pre-filing order.

       The Court further ORDERS that the Clerk ofthe Court is directed to notify the Office of

Court Administration of this Court's declaration of Eric Drake as a vexatious litigant and this

prefiling order, pursuant to Tex. Civ. Prac. Rem. Code § 11.103 (a). The Office of Court

Administration ofthe Texas Judicial System shall list Eric Drake a/k/a "Eric Von Drake" on the

list of vexatious litigants subject to prefiling orders on the agency's Internet website. TEX. Crv.

Prac. Rem. Code § 11.103(b).

       Finally, the Court ORDERS that ppoceedings in this matter are hereby stayed; that

ERIC DRAKE is ORDERED to provide security tbi Defendant Seana>Willing by posting a

bond with this Court in the airfount of $                to cWer reasonable expenses incurred in

connection with the legation commenced by Eric Drake, iaciuding costs and attorney's fees;
that, if Eric Drakefails tojrost a $               bond Within ten calendar days ofthe signing of

this Ordet/men this suit will ok dismissed in its entirety, pursuant to Tex. Civ. Prac. Rem.Code

§11.056.




Date


                                                     JUDGE PRESIDING




                                                                                                      555
      Exhibit "8"
Appellant's Amended Response to Appellees
   Declaring him as a vexatious litigant
                                                                       Hted inThe District Court
                                                                        «trim County, Tmw

                              CAUSE NO: D-l-GIN-14-001215      AUG 28 2014 ok.
 ERIC DRAKE                                §     IN THE DISTR^£j$g^ H i K «-
                                                 ™TO™rCTo£W™iU^
                                                                                     *tan<toza, Clerk
                                                §
                        Plaintiff               §    TRAVIS COUNTY, TEXAS
                                                §
 VS                                             §
                                                §
                                                §
 KASTL LAW P.C. ET AL ETAL                      §    200™ JUDICIAL DISTRICT

                        Defendants




               PLAINTIFFS AMENDED RESPONSE TO DEFENDANTS
                 TO DELCARE HIM AS A VEXATIOUS LITIGATE


TO HONORABLE JUDGE IN SAID COURT:

                PLAINTIFF, ERIC DRAKE, comes forth and amends his response to
Defendant Willing declaring him asa vexatious litigate and set forth thefollowing:
          1.    TheCourt violated Chapter 11 of the Tex. Civ. P. Rem. Code in declaring
the Plaintiffa vexatious litigate.

       2.       Plaintiffobjectsto the order signed byjudge Charles Ramsay in form and
content


       3.      Defendant Willing and her attorney Graydon failed to prove that he

conference with the Plaintiff prior to filing their motion to declare the Plaintiff as a

vexatious litigate, which was a violation of local rules. The trial court failed to make a

legal finding that Willing and Graydon proved that he did conference with the Plaintiff.

Defendant Willing motion is voidandso is the ordersignedon August 19,2014.

       4.      As referenced by Exhibit I, the docket sheet from Plaintiffs previous case

againstKastl, the defendant Willing failed to provethat the court's ruling in Dallaswas

                                            1




                                                          564
correct and thusthe Plaintiffhad no reasonably probability ofsuccess against Kastl in the

above suit Defendant Willing failed to prove that the Plaintiff had no reasonably

probability of success against her. Defendant Willing pled to the trial court that Plaintiff

sued her in her official capacity, but Plaintiff was requesting an injunction against

Willing in her official capacity, and damages in her unofficial capacity.

       5.      Plaintiff objects to the hearing that was conducted on August 19, 2014 to

declare Plaintiff is a vexatious litigate. Plaintiff objects to the assignment of judges

Strauss and Ramsay. Plaintiff asserts that Judge Charles Ramsay did not have the

authority or jurisdiction to hear Willing vexatious litigate motion. Plaintiff objects to the

prefiling order that was signed by judge Charles Ramsay entirety, in form and content,

and Plaintiff objects Judge Ramsay hearing the motion and his ability to sign the order.

       6.      It is Plaintiffs opinion that the vexatious litigate statute is a violation of the

Plaintiffs constitutional rights and due process rights. The Texas vexatious litigate statute

requires pro-se litigates to have a better litigation record than attorneys who attend law

school which denotes that the statute is grossly unfair to nonlawyers. The terminology

"reasonable probability of success" is so vague that even attorneys is unable to define it

or adhere to its standards. In cases like the Michael Jackson criminal case and O. J.

Simpson criminal case, there was no reasonable probability of success. If these attorneys

were likewise put to the same test as Chapter 11 of TCRC, with the same standards,

Jackson and Simpson would have been found guilty and the attorneys would have been

deemed as vexatious litigates. No attorney can say what litigation would be successful

when a jury is requested. Plaintiffasked for a jury in the above cause ofaction.




                                                              565
        7.      There have been many attorneys who put thousands of dollars into cases,

whether they are malpractice or othercivil cases and the jury awarded nothing. How can

we intelligently say that's ok, but if you were pro-se, its strike against you. There is a

ruling that once a person is declared vexatious, it affects the person even if they are

represented by counsel. The statute was developed only to make sure that the litigation

filed by pro-se litigates has merit If an attorney does not have the ability to review a case

to determine if it has merit, then what is the statutereally meant for. It is meant to punish

pro-se litigate who use the civil justice system. And this mentality sends a clear message

to the gangs in South Central LA and Chicago; to continue to take matters into your own

hands. This statute needs to be brought to the attention ofthe U.S. Supreme Court, either

through this appeal or a federal suit And Plaintiff is ready for either.

        8.      Kristina Kastl of Kastl law firm was about to settle Plaintiffs claims

against her until she heard Plaintiff was declared a vexatious litigate. The statute does

more harm than good, but it only harms pro-se litigates. If Plaintiffs claims against Kastl

were so frivolous, why would she even consider settling the case?

        9.     The vexatious litigate hearing on August 19, 2014 in the above entitled,

numbered and styled cause violated the Plaintiff due process rights and Chapter 11 ofthe

Tex. Civ. P. Rem. Code.


        10.     Defendant Willing and assistant attorney general Scot Graydon committed

fraud to obtain the order to declare the Plaintiff as a vexatious litigate. The order is

therefore void. Ramsay had no authority or jurisdiction to sign the order declaring the

Plaintiffas a vexatious litigate, thus the order should be vacated. Plaintiff will file suit




                                                              566
against both assistant attorney general Scot Graydon in his unofficial capacity and Seanna

Willing in her unofficial capacity in federal court for conspiracy to commit fraud, race

discrimination, interstate fraud, violations of §1983, 1981, and 1985. Plaintiff do not

believe that the Texas Attorney General Abbott instructed Graydon to commit fraud and

lie to the trial court, nor do the Plaintiff believe the Judicial Commission instructed

Willing to conspire to harm the Plaintiff. These actions were taken by Graydon and

Willing on their own personal vendettas. However, it is apparent that the Travis County

state court could careless ifan assistant attorney general lies before the court and commit

fraud to obtain an order. But the federal courts hopefully will look at these federal

violations ofthe Plaintiffs rights much differently.


                                                       Respectfully submitted,




                                                       ERIC DRAKE
                                                       PO BOX 833688
                                                       RICHARDSON, TEXAS 75083
                                                       214-477-9288




                            CERTIFICATION OF SERVICE

       I HEREBY certify that a true and correct copy of the foregoing document has

been delivered to the opposing attorneys of record via US Mail on this the 29th of

August, 2014.




                                              Eric Drake


                                             4




                                                            567
       II <* 99
Exhibit "1




        568
                                         Gary Fitzsimmons, District Clerk

                                              Case Summary
                                              CASE NO. DC-13-14911
  ERIC DRAKE                                                                    Location:   193rd District Court
 vs.                                                                   Judicial Officer: GINSBERG, CARL
 KRISTINA KASTLet al                                                            Filed on:   12/20/2013



                                                   Case information


Statistical Closures                                                        r„«.-iw. OTHER PROFESSIONAL
02/24/2014      ALL OTHER DISPOSITIONS                                      CaSC TypC- MALPRACTICE
                                                                                Subtype: LEGAL

                                                                            Case Flags: DISCOVERY LEVEL 3

                                                   Party information

                                                                                                   Lead Attorneys
PLAINTIFF          DRAKE, ERIC                                                                                         ProSe
                      PO BOX25565                                                                           214-492-9269(H)
                      DALLAS. TX 75225

DEFENDANT          KASTL LAW PC                                                                             JEE, ANDREW
                      BY SERVING LTS REGISTERED AGENT                                                               Retained
                      KRISTINA N. KASTL                                                                    214-965-0011(W)
                      4144 N. CENTRAL EXPRESSWA Y, SUITE 640
                      DALLAS. TX 75204

                   KASTL, KRISTINA NADINE
                      MAY BE SERVED AT HER PLACE OF EMPLOYMENT
                      KASTL LAW FIRM
                      4144 NORTH CENTRAL EXPRESSWA Y. SUITE 640
                      DALLAS. TX 75204

                   OGDEN, VIKKI                                                                   PAYMA, MICHAEL D
                      GEORGE ALLEN COURT BUILDING                                                                   Retained
                      600 COMMERCE STREET 5T11 FLOOR                                                       2l4-999-0000(W)
                      DALLAS TX 75202


       Date                                Events & Orders of hie court                                       Index

                                                                                                      VoUBook532L.
 02/0672007   Q ORDER-LIMINE                                                                          Page 0497. 5 pages

 12/20/2013   NEW CASE FILED (OCA) - CIVIL

 12/20/2013   55 ORIGINAL PETITION

 12/20/2013   Ql CASE FILING COVER SHEET
 12/20/2013   Q ISSUE CITATION
 12/20/2013   £5 AFFIDAVIT INABILITY TO PAY
                Party: PLAINTIFF DRAKE, ERIC

 12/26/2013   Q NOTICE OF HEARING / FIAT
                DISMISSAL HEARING


 12/31/2013   S\ CERTIFICATE OF DEPOSITION
                P/REQUEST TAKE DEPO OF KRISTINA N KASTL & SUBP DUCES TECUM

01/17/2014    "@ ORIGINAL ANSWER -GENERAL DENIAL
                Original Answer - General Denial




                                                       PAGE I OF 3                                       Printed on 08/25/2014 at 10:09 AM

                                                                          569
                                          Gary Fttzsimmons, District Clerk
                                              Case Summary
                                              CASENo.DC-13-14911

01/17/2014    S ORIGINAL ANSWER -GENERAL DENIAL
               Original Answer - General Denial

01/20/2014    1§ MOTION - MISCELLANOUS
               Motion - Contest ofPlaintiff's Pauper'sAffidavit

01/21/2014    53 MOTION -COMPEL
               Party: PLAINTIFF DRAKE, ERIC
               & M/COURT TO SEIZE ORIGINAL TAPE RECORDING


01/22/2014    S NOTICE OF HEARING / FIAT
               Notice OfHearing/Fiat

01/23/2014   |§ORIGINAL ANSWER - DEFENDANT
               DefendantVikkiOgden'sOriginal Answerand Request For Disclosure

                                                                                   VoUBook532L,
01/27/2014    53ORDER - MEDIATION                                                  Page 0496. 5 pages

                                                                                   VolJBook532L.
01/27/2014    53 SCHEDULING ORDER                                                  Page 0498. 5 pages

01/29/2014   "B RESPONSE
               Response

                                                                                   Vol./Book532l.
01/31/2014    53 ORDER -DENY                                                       Page 0469, 1 pages
               Motion to Compel

02/03/2014   CANCELED MOTION HEARING (1:30 PM) (Judicial Oflicen GINSBERG, CARL)
               REQUESTED BY JUDGE
               ERIC DRAKE M/COMPEL 30 MIN FILED 1/21/14


02/05/2014   HI MOTION -DISMISS
               Defendant VikkiOgden's Motion To Dismiss Under Tex.RCiv.P.91a

02/0672014   ©NOTICE OF HEARING / FIAT
               Notice ofHearing

02/07/2014   © MOTION-QUASH
               Motion - Quash

02/10/2014   ® MOTION -QUASH
               Defendant VikkiOgden's Motion to Quash Deposition

02/10/2014   53 MOTION -RECONSIDER
               Party: PLAINTIFF DRAKE, ERIC

02/10/2014   53 NON-SIGNED PROPOSED ORDER/JUDGMENT
               ORDER ON P M/RECONSIDER (ORDER NOT SIGNED)

                                                                                   VoUBook532L.
02/10/2014   53 ORDER-ABATE                                                        Page 0675. I pages
               and Notice ofPotential Dismisssal

02/10/2014   MOTION HEARING (10:30 AM) (Judicial Officer GINSBERG, CARL)
               Events: 01/20/2014 MOTION - MISCELLANOUS
               Contest Pauper Affidavit


                                                        PAGE 2 OF 3                Printed on 0&25/2014 at 10:09 AM

                                                                           570
                                             Gary Fttzsimmons, District Clerk
                                                Case Summary
                                                Case No. DC-13-14911

 02/11/2014    Si MISCELLANOUS EVENT
                 Party: PLAINTIFF DRAKE, ERIC
                 DEF FAILED TO STATEWHYTHEYARECHALLENGING INDIGENT STATUS

02/14/2014     53 CORRESPONDENCE - LETTER TO FILE
                 E-FILEDRE: ORDER DENYP M/PROCEEDW/OUTPAYMENTOF COSTS

02/14/2014     HI MOTION - PROTECT
                 Defendant Vikki Ogden's Motion ForProtection From Discovery

02/14/2014     § MOTION -PROTECT
                 Party: DEFENDANT KASTL LAW PC; DEFENDANT KASTL, KRISTINA NADINE
                 From Discovery

02/14/2014     113 MOTION - PROTECT
                 Party: DEFENDANT KASTL LAW PC; DEFENDANT KASTL, KRISTINA NADINE
                 From Discovery

02/24/2014                                                                             VoUBook532L.
               53 ALL OTHER DISPOSITIONS (Judicial Officer: GINSBERG, CARL)           Page 0895.1 pages

02/25/2014    COLLECTIONS - FINANCIALS

02/26/2014    CANCELED Motion - Dismiss (9:00 AM) (Judicial Officer GINSBERG, CARL)
                CASE CLOSED


03/10/2014     W RETURN OF SERVICE
                Return ofService Affidavit

                                                                                      VoUBook532L
03/26/2014     53 ORDER - VEXATIOUS                                                   Page 1299, 1 pages
                Concerning Eric Drake

03/27/2014    NOTE-CLERKS
                O/Vexatioushand Delivered to Civ Cts Stipv

04/03/2014
              CANCELED DISMISSAL FOR WANT OF PROSECUTION (1:30 PM) (Judicial
              Officer: GINSBERG, CARL)
                BY COURT ADMINISTRATOR
                INITIAL DISMISSAL


01/13/2015    CANCELED JURY TRIAL (9:30 AM) (JudicialOflicen GINSBERG, CARL)
                CASE CLOSED

   Date                                               Financial information

               PLAINTIFF DRAKE, ERIC
               Total Charges                                                                     288.00
               Total Payments and Credits                                                          0.00
               Balance Due as of 8/25/2014                                                       288.00




                                                       PAGE 3 OF 3                    Printed on 08/25/2014 at 10:09 AM

                                                                               571
          Exhibit "9"
    Recorders Record ofthe August 19, 2014
Hearing to declare Appellant as a vexatious litigant
          Before Judge Charles Ramsay
 1                              REPORTER'S    RECORD
                            VOLUME 3 OF 4 VOLUME (S)
2                  TRIAL COURT CAUSE NO. D-l-GN-14-001215
                     COURT OF APPEALS NO.
 3


 4
      ERIC    DRAKE                           IN   THE    DISTRICT   COURT
5


 6
      VS                                      TRAVIS COUNTY,         TEXAS
 7
      KASTL LAW P.C., SEANA
 8    WILLING, CARL GINSBERG,
     AND     THE    COURT   REPORTERS
 9    CERTIFICATION         BOARD             200TH      JUDICIAL    DISTRICT


10

11


12


13                  DEFENDANT      SEANA WILLING'S       MOTION TO

14             DECLARE      ERIC    DRAKE A   VEXATIOUS     LITIGANT

15


16


17


18


19             On the 19th day of August,             2014, the following

20   proceedings came on to be heard in the above-entitled

21   and   numbered cause       before   the Honorable Charles

22   Ramsay,       Judge Presiding, held in Austin, Travis

23   County,       Texas:

24             Proceedings reported by machine shorthand.

25
 1                                    APPEARANCES

 2


 3   FOR THE   PLAINTIFF:

 4             Mr.    Eric Drake
               Pro    Se
 5             P.O.    Box    25565
               Dallas, Texas  75225
 6             (214) 477-9288

 7


 8


 9   FOR THE   DEFENDANT       SEANA WILLING:

10             Mr.    Scot M.    Graydon
               SBOT No. 24002175
11             ASSISTANT ATTORNEY GENERAL
               P.O.    Box 12548, Capitol Station
12             Austin,       Texas     78711-2548
               (512)       463-2120
13


14


15


16

17


18


19


20


21


22


23


24


25
      1                      THE COURT:         Be seated.        Good morning.

      2                      MR.     DRAKE:     Good morning.

      3                      MR.     GRAYDON:        Good morning,    Your Honor.

      4                      THE COURT:         What    do we have?        Is    it

ii:i2 5    Drake versus —       what is the style?            And could I have

      6    announcements?

      7                      MR.     GRAYDON:        Yes,    Your Honor.        It is

      8    Drake vs. Kastl Law,           PC, et al.        My name is Scot

      9    Graydon.    I'm with the Office of the Attorney General.

ii:i3l0    I am representing one of the defendants in this

     11    matter,    Defendant Seana Willing,              who is the executive

     12    director of the      State Commission on Judicial               Conduct.

     13    And we're here on my motion.

     14                      MR.     DRAKE:     Your Honor,       my name is Eric

ii:i3l5    Drake.     I'm the plaintiff.         And I would like to make

     16    sure that my objection to you hearing this case is on

     17    the record.    The    —    I    filed a   motion to recuse.           No

     18    action was taken in the court whatsoever.                  I get here

     19    and all of a sudden I'm waiting —                  I've been here

ii:i3 20   since 8:00 o'clock and I have waited until 11:00,

     21    which is four hours,           then they put me with a judge who

     22    is a visiting judge.

     23                      Pursuant to the TRCP,              I can object to

     24    any visiting judge that is going to hear a case, and I

ii:i4 25   just —     since this case is going to the appellate
         1   court without question, I just wanted to have that
         2   objection on the record because it certainly —       the
         3   Court should have taken action on my motion to recuse.

         4   None of the judges did anything.

11:14    5                      Pursuant to the TRCP, if you don't do

         6   anything at all, even if you hear this case, it's

         7   going to get reversed.      No question about that in my
         8   mind.     The TRCP clearly states that you cannot do

         9   nothing.     And that's exactly what this Court has done,
11:14 10     nothing.     Then they surprise me, like they did on the
        11   7th, sabotaged me.      Here I am waiting on my motion to
        12   compel,    and Mr. Graydon here gets together with

        13   Ms. Kastl's employee, tells them to go downstairs on

        14   the first floor to Judge Orlinda to sign an order, and

11:15 15     I didn't even know the hearing was going on.
        16                      Now I come back today and they have

        17   more surprises for me.      They didn't take any action
        18   whatsoever on my motion to recuse.      TRCP says, fine,
        19   you don't want —      you don't want to take action on it,
11:15 20     Judge,    fine.   Any other judge that hears this, it's

        21   going to get reversed and remanded.     No question about
        22   that.     And there's a lot of case law on that.

        23                      I actually pulled a docket sheet this

        24   morning and had it certified just for that particular
11:15 25     reason.     I have nothing against you personally,
         1   Your Honor, but they are not following the TRCP here.

         2   They are waiting until I get here, and then throw all

         3   these- surprises at me,         which is unethical.            It's

         4   unfair to me.       If you're going to appoint a visiting

ii:i5    5   judge, the court should have sent out a notice that

         6   we're appointing this visiting judge to hear your

         7   case.   But they didn't follow that procedure.

         8                       Pursuant to that, and pursuant to even

         9   this,   I mean,    as I said,        I have nothing against you

ii:i6l0      personally, but it —        the —        procedurally wise,           it --

        11   the court has really not followed procedure, and this

        12   case will go to the appellate court.

        13                       If you should rule in favor of the

        14   defense,     I will file a motion for new trial and put

ii:i6l5      everything that I believe that the appellate court

        16   should see, and then file my motion to appeal.

        17                       And I have been in appellate courts in

        18   Texas and beat some of the finest appellate attorneys

        19   there   is   in Texas.    And    I    can tell   the   Court    that

ii:i620      procedurally wise,        you should not hear this case,                that

        21   the court has circumvented what they should have done.

        22   The court has surprised me.              The court has done things

        23   improperly.       And that's all that I can say.

        24                       THE COURT:         A brief reply?

ii:i6 25                         MR.   GRAYDON:       Your Honor,     as a
                1   preliminary matter,     I would like to make it clear to
p

                2   the Court that while there was an order resetting the

s>              3   hearing that Mr.   Drake filed that was on August 7th,        I

                4   had no knowledge that that was being done prior to the
W)

       11:17    5   signature on the paper.      I was aware of it after the

                6   fact.   So any suggestion that I was involved in
Si


                7   signing an order on that,    without his knowledge,      is
SJ
                8   simply not true.

                9                   Having said that,    Mr.   Drake has already
£$£1

       11:17 10     objected to one visiting judge today,      and it's my

               11   understanding that he does not get to do that on more
^


               12   than one occasion on one particular judge.

               13                   With respect to the motion to recuse,
r
               14   the ordinary course of business is for a respondent
pl^t
       11:17 15     judge to send something to a —      to the regional

               16   administrative judge.      And the respondent judge who
^V


               17   has had a motion to recuse filed against him or her

IPI            18   should not proceed further unless good cause is shown.

               19                   Now,    you were not named in the motion
p>
       11:18 20     to recuse.   And out of an abundance of caution,      I can

               21   provide the Court with good cause as to why this
IB


               22   should go forward today.     And I am prepared to do that

W&             23   if the Court would like.

               24                   My understanding was that this was just
SI

       11:18 25     the announcements,     but if you will tell me what you
      1    would like me to —               procedurally,          what you would like

      2    me   to    address   —

      3                             MR.    DRAKE:     Your       Honor   —

      4                             MR.    GRAYDON:        —     I will be happy to.

ii:i8 5                             MR.    DRAKE:     —        pretty much Mr. Graydon

      6    has already said —               I mean,       I'm not trying to —          to

      7    really circumvent what he's saying by any stretch of

      8    the imagination.               But I —     he may have never recused a

      9    judge before and he may not understand the recusal

ii:i8l0    process.

     11                             The recusal process,               there is tons of

     12    case      law on it that demands            that when I file         that

     13    motion of recusal that the court can't do anything.

     14    What the court has done is taken no action.                         Again,

ii:i9l5    wait until I got here, and then surprised me.                          You

     16    can't do that.            You    —     the court      should have    sent out

     17    notices saying, okay, Mr. Drake,                      you want to recuse

     18    all of us, we're all recused.                       We're appointing this

     19    judge here to hear your case, will give me a chance to

ii:i9 20   see, A, are there any conflicts,                      are there any

     21    problems,      et cetera,            et cetera,      et cetera.

     22                             I mean,       literally, due process-wise,

     23    the court has just run over me with a Mack truck,

     24    thinking because I am a pro se litigant that I'm not

ii:i9 25   going to say anything about it.                       No.
      1                      MR.   GRAYDON:       If I may,     Your Honor.

      2                      THE COURT:       You may proceed with your

      3    reasons and your evidence.

      4                      MR.   GRAYDON:       Yes,   Your Honor.        First

ii:i9 5    of all, I would like to present the Court and opposing

      6    party with Rule 18a, the recusal.

      7                      THE COURT:       Mr.    Drake,    you may be

      8    seated —


      9                      MR.   DRAKE:     Yes,    sir.

ii:20 10                     THE COURT:       —     while he's    —

     11                      MR.   DRAKE:     Yes,    sir.     Thank you.

     12                      MR.   GRAYDON:       Additionally,       I'm

     13    providing the Court with Watkins v.               Pearson,   which is

     14    795 S.W.2d 257.     I have   tabbed for the          Court and for

ii:2015    opposing party the relevant section, which clearly

     16    says that if I am able to demonstrate good cause as to

     17    why a court should go forward, even with a judge who

     18    is named in a recusal motion, the court may go forward

     19    on the matter without -- as required —                excuse me —

u:2o20     within Rule 18a (f) (2) (A) , which is the Texas Rule of

     21    Civil   Procedure that is    relevant to this matter.

     22                      The good cause that I would put forth

     23    is as follows:     Within the Court's file it can be

     24    noted that   there were various motions             to declare

ii:2i 25   Mr.   Drake a vexatious litigant that were filed and set
         1   for August the 19th.        The first motion was filed on

         2   June the 18th of 2014.        Mine was filed more recently,

         3   on August the 5th of 2014.        Mr. Drake received notice

         4   of it.     It was mailed to him on August the 5th of

ii:2i    5   2014.     And there was a supplemental notice of hearing

         6   that was sent to him on August the 7th of 2014,          which,

         7   in addition,    attempted to correct procedural —        any

         8   potential procedural defect with respect to

         9   conferring; because I conferred on August the 7th with

ii:2i 10     Mr.   Drake to ascertain the fact that he was,       first of

        11   all, opposed to the motion to have him declared a

        12   vexatious litigant that I filed; and also that he was

        13   aware of and would be present at the hearing today.

        14   And so I filed the supplemental notice,         which,   in the

ii:2215      event that a court might construe there to be some

        16   kind of defect,       cures that defect.

        17                     Moreover,    the purpose of the matter

        18   here today is to entertain the motion to have him

        19   declared vexatious litigant under Civil Practices and

ii:22 20     Remedies Code Chapter 11.        The purpose of that is to

        21   prevent abuse of the judicial system by pro se

        22   litigants,    that it —     the Legislature,    according to

        23   Drum v.    Calhoun,    299 S.W.3d 360 at 364,    out of the

        24   appellate court of Dallas was —        indicates that the

ii:22 25     Texas Legislature sought to strike a balance between
                                                                                 10




         1   Texans'   right to access their court and the public

         2   interest in protecting defendants from those who abuse

         3   the Texas court system by systematically filing

         4   lawsuits with little or no merit.

ii:23    5                    Moreover,      In re:   Potts,   399 S.W. 3d 685

         6   at 688,   out of the 14th Court of Appeals in Houston,

         7   indicates that the purpose of the statute is to make

         8   it possible for courts to control their dockets rather

         9   than permitting courts to be burdened with repeated

ii:2310      filings of frivolous and malicious litigation by

        11   litigants without hope of success,          while at the same

        12   time providing protection for litigants'

        13   constitutional rights to open court when they have

        14   genuine claims that can survive the scrutiny of

ii:23l5      administrative —      of the administrative judge and the

        16   posting of security to protect defendants.

        17                   The purpose of this statute is to

        18   protect the judicial system from the abuse that

        19   Mr. Drake is perpetrating in this case and has done

ii:23 20     for years.

        21                   Mr.    Drake,   while aware of this,      filed a

        22   motion for nonsuit on August the 7th of 2014,            which as

        23   the Court would be aware, begins the Court's plenary

        24   jurisdiction to entertain matters and that would be

ii:24 25     entertained for 30 days.
                                                                              11




       1                    He then, on the same day,         filed a

      2    motion to recuse every judge in the county so that

       3   nobody could hear the motion to have him declared a

      4    vexatious litigant; in the hopes that the process

ii:24 5    involved in filing a motion to recuse would take long

       6   enough to run out the Court's plenary jurisdiction so

      7    that no hearing could be held on the motion to have

      8    him declared a vexatious litigant.

      9                     There's no other purpose in filing a

ii:24l0    motion to recuse    in a   case   that was   nonsuited.

     11                     MR.   DRAKE:     I would have to object to

     12    him saying what my mindset is,        Your Honor.

     13                     THE COURT:       Sustain the objection.

     14                     MR.   GRAYDON:     The motion   itself    seeks

ii:25l5    to recuse all judges so that the judge -- the judges

     16    that improperly ruled against him do not continue his

     17    or her abusive behavior, which is on page two of his

     18    motion to recuse.

     19                     Mr.   Drake filed the motion       to   recuse on

ii:2s20    the date   in which courts did      not hear his    motion to

     21    compel.    They did not hear his motion to compel

     22    because, as per Civil Practice and Remedy Code 11.052,

     23    upon the filing of a motion to have him declared a

     24    vexatious litigant, all litigation —          all other

ii:25 25   aspects of the litigation must cease until that matter
                                                                        12




         1   is heard.   And so the courts were without power to
         2   hear his motions to compel that he set after the

         3   motion to recuse was file =— or after the motion to

         4   have him declared vexatious was filed.      And then

11:26    5   subsequently he filed that motion to compel, and then
         6   tried to have it set when he was aware that all

         7   litigation aspects were stayed.

         8                   In the motion to recuse,    it is

         9   defective on its face.   It does not —     first of all,

11:26 10     it is based solely upon the judge's rulings from July
        11   the 7th —   or from August the 7th of 2014, which under

        12   Rule of Civil Procedure A —    18a (a) (3) says that the
        13   motion to recuse must not be based solely on the
        14   judge's rulings in the case.   And you can ascertain
11:26 15     from plaintiff's filings that the only reason that he
        16   puts forth why people should be recused is based upon
        17   the rulings on his motion to compel and the subsequent
     18      motions to quash.   That is listed in his motion to

     19      recuse on page one, paragraph four.    Just for clarity,

11:27 20     there are two paragraph fours listed on page one, and
     21      I am referring to the second paragraph four on page
     22      one of his motion to recuse.

     23                      In the event that the Court does not

     24      proceed with hearing on this today, it is very likely
11:27 25     that the recusal process will allow Mr. Drake to evade
                                                                                             13




         1   the purpose of the pro se litigant stat —                     of the

         2   vexatious litigant statute by allowing him to

         3   improperly exhaust the Court's plenary jurisdiction,

         4   or at least       benefit from the exhaustion of the Court's

ii:27    5   plenary jurisdiction due to the filing of his motion

         6   to    recuse.


         7                           Additionally,      I'd like to show the

         8   Court what I am going to refer to as Exhibit A.                        I

         9   have filed some exhibits that,               if the Court hears me,

ii:28l0      there are 62 other exhibits,               so I can either call this

        11   A in an attempt to not be confusing with those other

        12   exhibits,       or I can call it 63,         I believe.       What would

        13   the Court prefer?

        14                           THE COURT:       It's your case.

ii:28l5                              MR. GRAYDON:       Okay.     I'm going to go

        16   with Exhibit A simply to avoid confusion.

        17                           THE COURT:       All right.

        18                           MR.   GRAYDON:     Your Honor,      I move to

        19   have Exhibit A          admitted.    This    is a   letter that

ii:29 20     Mr.    Drake sent to me in —             along with some other

        21   motions that       he    filed in this      lawsuit      that relates      to

        22   his intent to file suit against the judges who refused

        23   to have the hearings against him.                   I would ask that

        24   this be admitted for this hearing.

ii:29 25                             THE COURT:       Number A   is    admitted.
                                                                              14




       1                     (Defendant's Exhibit A admitted.)

       2                     MR. GRAYDON:     I would also point out,

       3   Judge,    that this shows the bad faith that Mr.      Drake

       4   shows, as exhibited in this litigation, not only by

ii:3o 5    identifying that he intends —          and my understanding

       6   from this morning is that he has filed the lawsuit

       7   that he is referring to in this letter.

       8                     Is that   correct?

       9                     THE COURT:     You don't   need to answer

ii:30 10   the question.

     11                      MR. GRAYDON:     Your Honor, yes, sir.      It

     12    is my understanding that he has filed the federal

     13    litigation that he is referring to in this law —

     14    letter,    that includes not only the filing of suit

ii:3o 15   against the three judges who statutorily could not

     16    hear his motion to compel; but it also indicates that

     17    he intends to sue their spouses and the spouses of the

     18    other State officials and other State officials        in an

     19    effort to avoid any kind of immunity that might attach

ii:3o 20   to a State official.     He's intending to go after

     21    spouses.

     22                      This demonstrates the vexatious nature

     23    of his litigation, as well as the bad faith that he is

     24    showing in his actions.        You may certainly infer from

ii:3i 25   his actions that he is providing bad faith.
                                                                               15




      1                     In light of that,        Mr.   Drake brought his

      2    motion to recuse without sufficient cause, and I think

      3    the evidence shows it can be inferred solely for the

      4    purpose of delay,    specifically to try to exhaust the

ii:3i 5    Court's plenary jurisdiction while the case has

      6    already been nonsuited, so that he may avoid having

      7    the hearing on the motion to have him declared a

      8    vexatious litigant.

      9                     In the event that the Court goes

ii:3i 10   through and has this hearing, and the Court of Appeals

     11    or the regional administrative judge later determines

     12    that a motion to recuse would have been proper,             then

     13    if the Court enters an order today granting my motion,

     14    it can simply be vacated.        It is within the Court's

ii:32l5    ongoing authority to vacate an order or judgment that

     16    the Court has entered.      So there is no harm,       no

     17    permanent and irreversible harm,          that would occur if

     18    the Court hears this matter today,          even if the Court

     19    granted this matter today.           Even if the Court granted

ii:32 20   this matter today in error, there would be no

     21    irreversible harm.

     22                     On the other hand,        if the Court does

     23    not allow this matter to go forward today, then it is

     24    very likely that the plenary jurisdiction will expire

ii:32 25   and that Mr.   Drake,   who is   —    was at the time faced
                                                                                             16




                  1   with at least three motions to have him declared a
M

                  2   vexatious litigant, will have been able to evade that

m                 3   by filing a motion to nonsuit when it became clear
-


                  4   that the Court was not going to enter any other aspect
pf
         11:33    5   of litigation before entertaining the motion as is

                  6   required by statute.
^



                  7                         I can certainly call Mr.      Drake to the

i-                8   stand to testify as to whether or not he filed the

                  9   lawsuit.       And,   in fact,   I would like to call Mr.      Drake
wt
         11:33 10     to    the   stand.


Sis?
                 11                         THE COURT:     Would you raise your right

                 12   hand and be      sworn.

                 13                         MR.   DRAKE:   I object.    He has not
r
    -


                 14   subpoenaed me to —           to testify and he cannot call me
fS?
         11:33 15     to the stand unless he has subpoenaed me to do so.

                 16   And I object.
^1


                 17                         THE COURT:     Objection is overruled, but

^?               18   I'm not going to require you to take the stand.

                 19                         MR.   DRAKE:   All right.   Thank you.
SSI

         11:33 20                           May I respond to some of this that he's

                 21   saying?
w


r                22                         THE COURT:     You may later.

IssssJ           23                         MR.   DRAKE:   Okay.

                 24                         THE COURT:     When he gets through,     you
    V
         11:33 25     may
                                                                                                 17




         1                       MR. GRAYDON:        Mr.    Drake,      did you

         2   recently file a lawsuit in the Northern District —                             in

         3   the United States District Court               for the Northern

         4   District   of Texas?

ii:33    5                       THE COURT:        I'm not going to force him

         6   to answer.     You need to move on.

         7                       MR.    GRAYDON:     Okay.       Mr.    —    Mr.    Drake,

         8   did you file all of the lawsuits identified in

         9   Exhibits 1 through 62 that were attached to the motion

ii:3410      that was   filed?

        11                       MR.    DRAKE:     I haven't      had a      chance    to

        12   look at them yet,         at this point in time.               You'll have

        13   to identify —

        14                       MR. GRAYDON:        Please —          please,      take

ii:34l5      your time.

        16                       MR.    DRAKE:     No.     No.

        17                       MR. GRAYDON:        Take your time.               They're

        18   right here,    they're in front of you.               I've handed them

        19   to you.

ii:34 20                         MR. DRAKE:        Objection.          I object.       I

        21   object.    We're not -- we're not going to have an

        22   argument —     Your Honor, we shouldn't be arguing here.

        23   Let him just go ahead and present his case because

        24   there are some procedural problems with his motion.

ii:34 25     He did not —    he stood here and told the Court that he
                                                                                             18




         1   conferenced with me         and he did not          conference with me.

         2   That's    number one.

         3                       Under the local 'rules,            he has to

         4   conference with me         before he       filed his motion.          He

11:34    5   failed to do so.          And he realized that,          so on the 7th,

         6   he tried to botch it up.             With —     with him filing this

         7   motion without conferencing with me,                  it is defective.

         8   And I am quite sure that the appellate court will

         9   reverse a ruling to declare me as a vexatious litigant

11:35 10     when his motion itself is defective.                   He needs    to

        11   stand —     he needs to stay with the Chapter 11 of the

        12   Texas civil code of remedy and prove his case based

        13   upon that.       And he has failed to do so.

        14                       MR.    GRAYDON:        I haven't even begun,

11:35 15     Your    Honor.


        16                       MR.    DRAKE:     Well,    I'm waiting.        Go

        17   ahead.

        18                       THE    COURT:     Be   seated.

        19                       And you may proceed.

11:35 20                         MR. GRAYDON:           I'm going to move to have

        21   Exhibits 1 through 60 —             1 through 62, which were

        22   attached to the motion to dismiss               —    excuse me    —        to

        23   the —     Seana Willing's Motion to Declare Eric Drake a

        24   Vexatious Litigant that was filed with the Court on

11:36 25     August the 5th of 2014.             I would ask that Exhibits 1
                                                                                 19




         1   through 62 be admitted into evidence.

         2                   THE COURT:       1 through 62 are admitted.

         3                   (Defendant's Exhibits            1-62 admitted.)

         4                   MR.   DRAKE:     I would like to also object

ii:36    5   to those exhibits being that -- for what he's trying

         6   to use them for, they are defective.             And I note my

         7   objection.

         8                   THE COURT:       Objection overruled.

         9                   MR.   DRAKE:     Okay.

ii:36l0                      MR.   GRAYDON:     In    fact,    Your Honor,   I

        11   have certified copies,    if I can give them to the

        12   Court.


        13                   THE COURT:       You may.

        14                   MR.   GRAYDON:     One moment,       please,

ii:37l5      Your   Honor.


        16                   Your Honor, Chapter 11 requires that a

        17   defendant show a couple of different things in order

        18   to have an order entered declaring Mr.             Drake a

        19   vexatious litigant.     The first is       that Mr.    Drake

ii:38 20     has -- I want to get the language correct here -- that

        21   there is not a reasonable probability that the

        22   plaintiff will prevail in the litigation.

        23                   In the instant case,         Ms.    Willing filed

        24   a plea to the jurisdiction in which she identifies

ii:38 25     that she has sovereign immunity and that Mr.             Drake has
                                                                               20




      1    articulated no waiver of sovereign immunity.             In

      2    addition,    it demonstrates that Mr.      Drake did not

      3    establish his standing to bring any claims against

      4    Ms.   Willing.    And he has not alleged even a prima

ii:38 5    facie case against Ms. Willing.          Moreover, because he

      6    sued Ms. Willing in her official capacity, the

      7    underlying charges against him were under 42 U.S.C.

      8    1983,   a violation of his constitutional rights,             and

      9    Ms. Willing in her official capacity is not legally

ii:39l0    considered a person within the meaning of 42 U.S.C.

     11    1983.    That matter is fully briefed in the Defendant

     12    Seana Willing's plea to the jurisdiction, which was on

     13    file before the filing of the motion to declare Eric

     14    Drake a vexatious litigant.          So there is no likelihood

ii:3915    that he would succeed in this matter against

     16    Ms. Willing even before he filed his nonsuit in this

     17    case.


     18                        Once that's established,    then he —

     19    the —    there are a couple of different ways in which

ii:39 20   Mr.   Drake's vexatious litigant history may qualify

     21    under Chapter 11.       He has previously been declared a

     22    vexatious litigant in federal court,         which is

     23    articulated on Exhibit 1, in which the Eastern

     24    District —       the federal court    in the Eastern    District

ii:4o 25   of Texas, in three separate lawsuits, entered a single
                                                                              21




      1    opinion declaring him a vexatious litigant and barring

      2    him from filing any further suits in that district

      3    without the permission of the senior judge.

      4                          So pursuant to Texas Civil Practice and

ii:4o 5    Remedies Code 11.054, paragraph 3, Mr. Drake qualifies

      6    to be declared a vexatious litigant under that section

      7    of   the   statute.


      8                          In addition,   under 11.054(1)(A)   and

      9    (B),   if —     it may be shown that the plaintiff has

ii:4o 10   commenced, prosecuted, or maintained as a pro se

     11    litigant at least five litigations, other than in

     12    small claims court,        that have been,    (A), finally

     13    determined adversely to the plaintiff;           (B) , permitted

     14    to remain pending at least two years without having

ii:4i 15   been brought to trial or hearing; or (C) , determined

     16    by a trial or appellate court to be frivolous or

     17    groundless under state or federal laws or rules of

     18    procedure.

     19                          The relevant portion will be that I

ii:4i 20   have —      I   have demonstrated and provided the Court

     21    with evidence of at least five litigations,           other than

     22    in small claims court,        that have been finally

     23    determined adversely to the defendant,          which all were

     24    filed within the last seven years,           as is required by

ii:4i 25   CPRC   11.054.
                                                                            22




      1                      In fact,   I have not provided the Court

      2    with evidence of only five,       I have provided the Court

      3    with evidence of 25 different lawsuits within that

      4    relevant time period that Mr.       Drake has filed as a

ii:4i 5    pro se litigant that have been adversely determined

      6    against him.

      7                      In addition to that,    in the motion to

      8    declare a vexatious litigant,       I have identified —      I

      9    have identified some lawsuits       that he has    filed that

ii:42 10   have been adversely determined at the trial court

     11    level, but that are on appeal.        I believe that is in

     12    15 —   page 15 and 16 of Defendant Willing's Motion to

     13    Declare Eric Drake a Vexatious Litigant.           He has not

     14    had a final adverse determination,       so those are not

ii:42l5    included in the 25 that have been adversely determined

     16    against him.

     17                      Your Honor,    in light of the fact that

     18    this lawsuit has been nonsuited, but apparently he has

     19    refiled in federal court,       with respect to this

ii:42 20   litigation,    I do not know that requiring Mr.       Drake to

     21    put forth security in this cause number,          which is

     22    D-l-GN-14-001215,    I don't know that asking him or

     23    ordering him to furnish security would be appropriate

     24    at this time.     But what we would ask the Court to do

ii:43 25   is declare him a vexatious litigant and,          further, to
                                                                                        23




         1   enter the prefiling order that that chapter allows.

         2                       In the event that you have —              in the

         3   event that you grant this,           I do have a proposed order

         4   that contains the good cause that I have presented,

ii:43    5   and so I   would ask the Court         to —    in    the event    that

         6   it grants the motion to file that order,                that I can

         7   provide it to the Court.

         8                       THE COURT:       Anything —       anything

         9   further?

ii:44l0                          MR.   GRAYDON:     No,    Your Honor.

        11                       THE COURT:       Reply.

        12                       MR.   DRAKE:     Thank you,      Your Honor.

        13                       The plaintiff will reply first by

        14   saying that,      again, the motion is defective because

ii:44l5      Defendant Willing failed to follow local rules and

        16   conference with me.         In fact,    none of the defendants

        17   conferenced with me.        We got some defendants that

        18   won't talk to me on the telephone, won't even —                    won't

        19   talk to me   at    all.

ii:44 20                         In regards to Mr. Graydon's false

        21   testimony that he conferenced with you,                he has

        22   perjured himself, and I am going to find it pleasure

        23   to prove that he did so.           But that's       for another

        24   court.


ii:45 25                         In order to declare me           as a   vexatious
                                                                               24




      1    litigant, the defendant will have to prove that the

      2    case that I filed,    not just Ms.      Willing, but the case

      3    itself against each and every defendant —            this is the

      4    difference between    someone who don't      understand and

ii:45 5    has not researched the vexatious litigant statute as

      6    well as I have.     When there is multiple defendants,

      7    you have to prove that each one of the defendants that

      8    the plaintiff could not prevail against, not just one.

      9    Case   law substantiates    that.

ii:45l0                      Number two,   he can't prove —        I haven't

     11    been allowed to prove that Ms.         Willing is not because

     12    of due process.     I have tried to subpoena witnesses on

     13    my behalf to testify and each time they have had

     14    motions to quash,    whether I'm trying to take

ii:46l5    depositions,   or subpoenaed them here.           I believe that

     16    the appellate court will agree with me that you can't

     17    have it both ways,    Ms.   Willing.     You cannot cut my arm

     18    off and say that you cannot have your witnesses that

     19    you need for this hearing to declare me as a vexatious

ii:46 20   litigant,   and at the same time say,       Mr.   Drake,   now go

     21    swim with these iron shoes on,         as you —    and compete

     22    with Mark Spitz.     He cannot say I cannot have the

     23    witnesses that I need without violating my due process

     24    rights.

ii:46 25                     In regards to the motions itself for
                                                                                  25




         1   transfer, there is case law that says that the

        2    appellate court will reverse if I am not allowed to

         3   take depositions.         I tried my best to get my discovery

         4   together so that I could properly bring this case

ii:46   5    before the Court     so that the Court      could see that       I

         6   have a strong case, but I cannot possibly prove my

         7   case if I'm hindered from discovery,          if I'm hindered

         8   from getting my witnesses here today.             Each one of the

         9   defendants has systematically filed their motions to

ii:47l0      quash any effort that I've made in order to try to

        11   establish that.

        12                      They want to declare me as a vexatious

        13   litigant, but they do not want me to be able to prove

        14   my case, that these cases does have vitality,             that

ii:47l5      they are —     that it does have merit.

        16                      But,    again,   Your Honor,    based on case

        17   law,   Mr.   Graydon here would have to prove that every

        18   defendant on that —         that's in this case,      that I have

        19   no probability of proving that case.              And that has

ii:47 20     been tried against me with much better attorneys than

        21   he do,   with Drake v.      Andrews,   and I'm the Drake,    and

        22   they lost in the appellate court because the court

        23   says they failed to prove that Mr.          Drake didn't have

        24   any reasonable probability of success.

ii:48 25                        And I'm pretty sure that the appellate
                                                                                     26




      1    court will agree with me that if you're going to

      2    restrict me from being able to have the witnesses that

      3    I need, that that in itself is stopping me from being

      4    able to prove my case,          that it does have merit.             Every

ii:48 5    turn,       they have stopped me from being able to get the

      6    witnesses to show that those             cases are      —    that this

      7    case is —        you know,    that it has merit.

      8                         Then further,       Your Honor,         as we look at

      9    this case, vexatious litigant case law says that if I

ii:4810    file suit against 35 defendants —                   now, this is case

     11    law.        This is not something that Mr.           Graydon could

     12    read.       And one of those defendants,             I settle with

     13    them,       they cannot declare me as being a vexatious

     14    litigant.

ii:49l5                         Also,    the same case law that I will

     16    plead to the appellate court,                if I have to do so, in

     17    the Third Circuit,        says that if I can prove that any

     18    one    of    those defendants    that    I   have    filed    suit

     19    against, Ms. Kastl,          any of them,       that that case has

ii:49 20   merit,      which Mr.   Graydon didn't say Ms. Kastl's

     21    lawsuit didn't have merit.              He only pointed to

     22    Ms.    Willing.     He would have to prove that each one of

     23    these defendants that I filed against them involve

     24    that.


ii:49 25                        Then, moreover,          Mr. Graydon,      what he
                                                                                                    27




                 1   has done is that he said,              here is all this evidence to
BR!


                 2   the court,      but he has not called out the cases that he

S^               3   and himself have determined that were against me, that

                 4   they were finally ruled against me.                   Yes,     there are
51
        11:50    5   cases that are on appeal,              but what I'd like to see,

                 6   Your Honor,         Mr.    Graydon to do is to say,           okay,
Itipi



                 7   Your Honor      —     and he said that         I   filed 25    cases in      the

«p)              8   last seven years, which is also a falsity.                       That's not

                 9   true.     There are cases right now on appeal, yes.                       In
SB!
        11:50 10     fact,    there are cases that he has probably included in

                11   here    that   have       been   settled    that   he don't    even   know
"3


                12   that they have been settled.

iijwV           13                             In regards to the Eastern District of

                14   Texas,    he told this Court that they declared me as a
iBSI

        11:50 15     vexatious litigant, and that is a lie.                    What the court

                16   did do is say that in order for you to come back to
S5I


                17   this court,         because one of the judges got upset with

"53             18   me filing pleadings there,                 the judge ruled that I

                19   would have to get permission before I could come back
Tf^t!

        11:50 20     as a pauper.          The court did not declare me as a

                21   vexatious litigant.              That court also made the
SI


                22   assumption that the Andrews case that I fought for

«fSl            23   seven years,         that I had been declared as a vexatious
1
                24   litigant.       That was overturned because the appellate
hS!
        11:51 25     court recognized that Mr.              Drake is not a vexatious
                                                                             28




        1   litigant.     In fact, Mr.    Drake has never been declared

        2   properly as a vexatious litigant,          ever.   Mr. Graydon

        3   here has stood before this Court and gave this Court

        4   false    information.

ii:5i 5                       Now,    before this Court makes any

        6   decisions,    I would respectfully request the Court —

        7   because I didn't know what he was going to say —            I

        8   would respectfully request this Court to take both

        9   arguments under advisement and allow each one of us to

ii:5i 10    file,    if we need be,    briefs.    And in my brief I will

       11   point out -- because either I'm going to file it here
   i


       12   or I'm going to file it in the Third Circuit,          either

       13   one.     I'm going to point out the fact that, number

       14   one,    that no federal court has declared me as a

ii:5i 15    vexatious litigant;       number two,    that I have not filed

       16   25 cases that have been adverse against me in the past

       17   seven years.     Some of those cases that he talked

       18   about,    I've settled.

       19                     And,    again, if I have 25 defendants -

ii:52 20    this is what case law says,          Your Honor - and I settle

       21   with any one of those defendants,          the case cannot be

       22   construed as being vexatious.           Because attorneys do

       23   that all the time.        They file suit and they have many,

       24   many different defendants,       and then they will let this

ii:52 25    guy go and let that guy go, and et cetera, et cetera.
                                                                                       29




      1    But I think the biggest issue here —             one of the

      2    biggest issues is my due process.            They're preventing

      3    me from calling my witnesses that I need.                I tried to

      4    call Ms. Willing.        No, motion to quash.          You can't

ii:52 5    quash me and then not allow me to bring them.

      6                      I tried to bring Ms. Ogden,            which that

      7    case,   if the court would allow me to put her on the

      8    stand and cross-examine her,         you'd say, wow,          yeah,

      9    Mr.   Drake got a case here.        But what do they do?              They

ii:52l0    file motions to quash.        Ms.   Kastl:     Motions to quash.

     11    Everybody has filed their motions to quash,                  and if

     12    this Court should rule in favor of Ms. Willing,                  I

     13    think the appellate court will say,            well,    Judge,       you

     14    can't —    you can't stop Mr.       Drake from putting on his

ii:53l5    evidence, if that's what they're trying to do,                  and at

     16    the same time declare him as a vexatious litigant.

     17    You cannot do    that.    And that's    what    their    —     that's

     18    what their goal.        They did not want me to be able to

     19    prove my case by trying to stop me from taking

ii:53 20   depositions.

     21                      When I file a lawsuit,         Your Honor,          I'm

     22    aggressive.     I am.     I filed a lawsuit and I come right

     23    out of the gates with discovery, written discovery,

     24    depositions.    And the only thing that they can do to

ii:53 25   stop me is file a frivolous motion like this to try to
                                                                              30




       1   stop me from moving forward.

       2                     Now, Mr.    Graydon also said that,      well,

       3   Mr. Drake knows that the statute itself stays

       4   everything.     I saw that they —     that they had filed

ii:54 5    notice that I was already a vexatious litigant,

       6   because the judge in Dallas County,          Judge Ginsberg, on

       7   his own declared me as a vexatious litigant based upon

       8   an older order that had already been reversed, part of

       9   what the appellate court had done.           Well,   but that

ii:54l0    came too late.     So Judge Ginsberg's order came too

     11    late.     And I can prove that.

     12                      Ms. Kastl,    that case,    I have over 32

     13    pieces of evidence.     Ms.    Kastl don't want to take that

     14    stand.     She already has perjured herself in Dallas,

ii:54l5    Texas.     And so I filed a suit here trying to get this

     16    together and to move forward.

     17                      But if the Court should grant the

     18    defense motion,    then it would force me to file an

     19    appeal,    and the appellate court is going to ask a

ii:55 20   simple question, was Mr. Drake's rights -- due process

     21    rights violated?     Yes, they were, because I can't get

     22    any witnesses here because they'll block them.            You

     23    can't do that,    and then declare me a vexatious

     24    litigant.     You can't block me from trying to prove my

ii:55 25   case and at the same time say, these cases doesn't
                                                                                            31




         1   have merit.        That's what they want.             They want it both

         2   ways,    Your Honor,         and you can't have that.

         3                          The motion is —        and it's improper

         4   before the Court because,            again,    Mr.    Graydon did not

ii:55    5   conference with me.             And he said -- he.stood here and

         6   said that he did.             Well, he's going to see that again

         7   in not only appellate court, but through the Bar

         8   association.

         9                          Procedurally, his motion is also -- it

ii:55l0      fails.     He    has   not    shown that the       entire case

        11   against —        that he's referring to is frivolous.                He's

        12   just only pointed out his one client,                  and he'll have

        13   to show that each one            of those defendants       is

        14   frivolous,       and he's failed to do so.

ii:56l5                             You can't pick and choose and say,

        16   well,    I want to pick this defendant and say,                  well,

        17   see,    this case, Your Honor,         is not good, but the rest

        18   of them,    he never commented on them.                He never

        19   commented       on Ms.   Kastl's    case.     He    never commented       on

ii:56 20     Ms. Ogden's case.             He never commented on any of these

        21   cases whatsoever.             So he's failed to prove the first

        22   prong,    and that is,         whether or not I would be

        23   successful or not against any and all of those,                     not

        24   just one.        And there's case law that will substantiate

ii:56 25     that,    too.
                                                                                            32




      1                         THE REPORTER:          Is    there —      is    it

      2    Ms. Olgen or —

      3                         MR.    DRAKE:     Ogden,      O-g-d-e-n.         Vikki

      4    Ogden.     Yes,   ma'am.

ii:56 5                         THE REPORTER:          Thank you.

      6                         MR.    DRAKE:     In many respects it's

      7    already brought up,          the court has failed to follow the

      8    TRCP as far as the recusal,             and Mr.      Graydon spent a

      9    lot of time with that.           But Mr.         Graydon., himself,

ii:56l0    failed to    follow       the local rules.          We were    here on the

     11    7th,   Your Honor,        sitting in court,         and Mr.    Graydon

     12    realized that he          hadn't conferenced with me                so he

     13    could try to fix it.           But you —          you don't try to fix

     14    it - I'm not going to tell him how to fix these

ii:57l5    pleadings.        He's an attorney - to have —                to have made

     16    that work for him,          but he did not conference with me.

     17    And I can prove it.           He stood here and told the Court

     18    an outright,       flat-out lie, and I'm going to be able to

     19    prove that to the Court,             too.

ii:57 20                        He    told the Court         that   I   conferenced

     21    with Mr.    Drake,    and I asked Mr.            Drake whether or not,

     22    indeed,    you know,       through any —          when you're —           when

     23    you're talking about a conference,                  whether or not he

     24    was opposed to it, he didn't use that language.                             He

ii:57 25   knows that and I can prove that.
                                                                          33




      1                      The defendant's motion is moot because

      2    he   failed to do what he should have done.      And more

      3    importantly, Your Honor, because he failed to

      4    conference with me,    his motion,   itself —   and I'm not

ii:57 5    going to tell him how he should have fixed it.        But he

      6    was so in a hurry when he heard Judge Meachum, Amy

      7    Meachum, say that,    hey, we've got a new rule here that

      8    you have to conference, and he realized he hadn't

      9    conferenced with me,    so he tried to go out and put a

ii:58l0    Band-Aid on it,    and that's not how you should have

     11    done   it.

     12                      My motion for nonsuit has been signed

     13    by the court, by a judge, by a sitting judge, and that

     14    motion for nonsuit was filed before he had a       chance to

ii:58l5    file anything else to try to correct his motion.         And

     16    I will show the appellate court,      if I have to,   that.

     17    He has failed to file this timely and procedurally

     18    correct, and because he has,    the Court should deny it.

     19                      Not only that, but,   there again, as far

ii:58 20   as the prong of showing that each and every one of

     21    those defendants that I had no reasonable probability

     22    of being successful against,    he has failed.     And I

     23    have yet to hear,    in the last five years,    what cases

     24    he's referring to.     I'd like for him to put that on

ii:59 25   the record what cases he's referring to that were —
                                                                                                     34




w^
                     i   were ruled against me.              I don't —     I don't know what

                     2   those cases are.              I would like for him to put that on

Si
                     3   the    record.
    .




                     4                           The last —     the statute says that I —
19


r           11:59    5   he would have to be able to prove,                he said,     in seven

^v
                     6   years,      six years,        the last at least six cases that —

1                    7   excuse me —        five cases that I have had ruled against

w\
                     8   me.     I   have not        heard those cases at all.        And this is
--




                     9   going to be something that we'll have to deal with in
K5fr

            11:59 10     the appellate court, but the vexatious litigant

                    11   statute is a state injunction.                 It does not stop me
m


                    12   from filing federal lawsuits at all.                   It is a state

                    13   injunction.        It has —        and there is case law that
r
                    14   proves that.        That means that,          what he don't know,
w\

            11:59 15     that you can't even use,             technically speaking,           any

                    16   federal      lawsuits        because the   federal   lawsuits       have
155)


                    17   nothing to do with state claims.                 But the case law
1S9
                    18   will speak to this.              Of course,    he don't know this,

                    19   and he'll have to go research it.

r           12:00 20                             I    have been tried --      there   have    been

                    21   defendants       that       have tried to declare me as        a
si

i       •           22   vexatious litigant since 2004 and no one yet has been
W$k
                    23   able to withstand what the appellate court says, no,

                    24   that    won't work.
"-'
            12:00 25                             And in this particular case,           due
                                                                                         35




                    process rights have been violated.           He's failed to

                    show that each and every one of these defendants —              he

                    cannot show this —        that each one of the defendants,

                    that I    have no merit to it.        He can't show that.

       12:00    5   That's impossible.        It's literally impossible for him

                6   to show this.        And if I don't prove it to this Court,
r               7   I know very well that I'll prove it to the appellate

p^i             8   court.     There's no question about that.
L
                9                        I'll also prove to the Court that he's
s^
       12:00 10     failed to even show that there has been six cases that

               11   have been ruled against me.           I would like to see those
R}

1              12   cases, those state cases that have been ruled against

tfS            13   me.



               14                        Your Honor,    this motion for vexatious

       12:01 15     litigant is just a way to stop me from getting to the
               16   discovery in this case.
lap!
I
               17                        Now, let me explain to the Court very
f$^            18   quickly, and then I will close, what happened on the
               19   7th.     On the 7th,    I came to this Court with the
r
       12:01 20     expectation of having my motion to compel to be heard.
               21   And what happened was that Mr. Graydon here got
1

               22   together with Ms.       Kastl's assistant, he went out in

               23   the hall and he told him to go downstairs and get
r
               24   Ms.    Orlinda   —

r      12:01 25                          MR. GRAYDON:    Your Honor, I'm going to
                                                                                       36




         1   need to object.      This is not accurate as to what

         2   happened in the least.

         3                     THE COURT:        Overrule the objection.

         4   You can answer    later.

12:01    5                     MR.   GRAYDON:      Yes,   sir.

         6                     MR.   DRAKE:      And next thing you know,

         7   the case was moved to another court.                And Timothy

         8   Sulak says,   I'm sorry,      Mr.   Drake,   but,    you know,    we've

         9   got an order here.       I wasn't at all advised by the

12:0210      Court,   by anybody,    that there was a hearing going on

        11   for an order.     Mr.   Graydon knew that that was going

        12 'on,    and he's denying it, just like he just told the

        13   Court,   and he's perjured himself and said that he

        14   conferenced with me,       and that is not true.          And I will

12:0215      prove that not by a preponderance of evidence,

        16   Your Honor, but I'm going to prove it beyond a

        17   reasonable doubt that he's already perjured himself

        18   and   lied to this   Court.

        19                     He believes because he's an attorney,

12:0220      he comes from the attorney general's office that he

        21   can just say just about anything.             Yes,    I filed a lot

        22   of lawsuits, and some of them,          like Andrews,      I fought

        23   that case for eight years.          Eight years.        Eight years.

        24   But I filed that case with vigor because I knew,                  just

12:02 25     like with this case,       that I was right, and the
                                                                                 37




      1    appellate court agreed with me.           And the Texas Supreme

      2    Court    would not    even hear the   defense at all     because

      3    of    the circumstances.

      4                         Now,   this is the case that they say

12:03 5    that Mr.    Drake was declared a vexatious litigant,

      6    whereas the appellate court say this case has merit

      7    and the Texas Supreme Court says,          I agree.    You

      8    couldn't even get a better case than that.             A rear-end

      9    collision, medical bills,        and in the court's docket

12:03 10   I've got affidavits of medical records, affidavits of

     11    costs,    and Ms.    Andrews lied 37 times in her

     12    deposition.     Yet,    because I'm an African-American,            and

     13    a pro se litigant, we can declare Mr.          Drake a

     14    vexatious litigant.         That will stop him.

12:03 15                        I'm asking the Court to deny their

     16    motion to declare me as a vexatious litigant.                They

     17    have failed to prove the first prong as in Drake v.

     18    Andrews.     My due process rights has been violated.

     19    I —     I can't get any of my witnesses here.          It is

12:04 20   wrong.     It was wrong what they did with the motion to

     21    compel.     They waited until I got here.         There was no

     22    order,    nothing,    until I got here,    and then all of a

     23    sudden we've got an order, you know,          thank you very

     24    much,    sir, you drove six hours,      I'm sorry.     It's

12:04 25   wrong.
                                                                                      38




         1                       Thank you.

         2                       THE COURT:       Reply.

         3                       MR.   GRAYDON:      Your Honor,      to the extent

         4   that the Court might interpret a lack of certificate

12:04    5   of   conference in the motion to          declare him a      vexatious

         6   litigant that was filed on behalf of Seana Willing, I

         7   will stand here and I will tell the Court that prior

         8   to filing the motion,        I did not confer with Mr.          Drake.

         9                       However,   when I became aware that the

12:04 10     local rule required a conference,                 which was on August

        11   7th,   I asked Mr.    Drake on that date if he was aware

        12   that   the motion    had been filed.          I    confirmed that he

        13   was,   in fact,   opposed to the motion.              I confirmed that

        14   he was aware of the hearing that was scheduled for

12:05 15     this date, and he told me expressly that he was going

        16   to be here on this date,         and,   in fact,       he is here on

        17   this   date.

        18                       I filed on August 7th the supplemental

        19   notice of hearing in which I have that certificate of

12:05 20     conference in there.        To the extent that there might

        21   have been some sort of procedural defect,                 I believe I

        22   have cured it.       You have heard nothing from Mr. Drake

        23   as to how he was prejudiced by the fact that I

        24   conferenced with him on the matter on August the 7th,

12:05 25     which was 12 days before today's date.                 You have heard
                                                                               39




      1    nothing suggesting that he was in any way prejudiced

      2    by the fact that the conference occurred on

      3    August 7th.

      4                          With respect to the suggestion that in

12:06 5    order to succeed,        a   defendant must show that Mr.   Drake

      6    has no hope —         reasonable hope of success against any

      7    of the defendants,           you have heard no case law

      8    suggested to the Court that this is the case.             There

      9    have been no filings with the Court suggesting that

12:06 10   this is the case,        in which any of those cases were

     11    identified.

     12                          Moreover, Mr.    Drake has gone to the

     13    trouble of dismissing his case against all the

     14    defendants,     which certainly indicates that he will not

12:06 15   be successful in this cause of action against any of

     16    the litigants.

     17                          With respect to the motion to transfer,

     18    I'm not even addressing that,          because that's not set.

     19    I   didn't   file a   motion to transfer.     I have no idea

12:07 20   why that's being referenced.

     21                          With respect to the motion to compel,

     22    there's been no evidence presented to the Court that

     23    anyone could have been called to —           or a deposition

     24    was appropriate in this matter to demonstrate any of

12:07 25   the elements     to have him declared vexatious.
                                                                              40




      1                      With respect to the requirement to show

      2    that he would not have been successful against

      3    Ms. Kastl,    in the motion itself,     I number the 25

      4    things —     litigations that Mr. Drake has filed and

12:07 5    that have been adversely determined against him within

      6    the last seven years.        They are listed with the name,

      7    which court they're in,       and the cause number for them.

      8    And the exhibits that are admitted into evidence

      9    support each of these 25.        They are before the Court.

12:08 10   I have not gone to the trouble of listing them, but

     11    they are listed in the motion itself,         and the evidence

     12    is before the Court with respect to each of those 25.

     13                      Two of them are against Ms.       Kastl,   and

     14    they have been adversely determined against this

12:08 15   plaintiff.     In fact, one of them was against Ms. Kastl

     16    and Ms. Ogden and it has been determined adversely

     17    against the plaintiff;       that is, Eric Drake v.

     18    Kristina Nadine Kastl,       et al,   in the 193rd District

     19    Court of Dallas County,       Texas, Cause Number

12:0820    DC-13-14911.     It is the    15th of the 25 that I list.

     21    15th litigation.     It is documented on Exhibits 31

     22    through 33,    which are before the Court in evidence.

     23                      In addition to that,      the 18th

     24    litigation that I referenced is Eric Drake v. Kristina

12:09 25   Nadine Kastl, et al., in the County Court at Law
                                                                                          41




iSi
                 1   Number 5 of Dallas County,          Texas, Cause Number

                 2   CC-13-03247.    And that     is    Exhibits    49 and 50.

W$t              3                     And one moment,          please,   Your Honor.

                 4                     And that    also    —     Exhibits   49 and   50
!5ty

        12:09    5   indicate that this lawsuit was filed against Kristina

                 6   Nadine Kastle and Kastl Law,          PC.     And in the briefing,
HFN


                 7   I have quoted Mr. Drake,          who identifies the fact that
SSJ
                 8   Kristina Kastl and Kastl Law,             PC, are the same entity.

                                       Additionally,       he has been declared
    -




                 9
Wh

        12:10 10     vexatious by the Eastern District in Exhibit Number 1,

                11   and he was suggesting to the Court that that was not
s


                12   an order filing him —        finding him to be a vexatious
(ft!
                13   litigant.     I would ask the Court to look at Exhibit 1,

                14   particularly on page five,          in which the Court says —
B8>

        12:10 15     one moment,    please, Your Honor.           I want to make sure

rtft
                16   that I read this correctly to you.

1               17                     On page five of Exhibit 1, there's a

pi              18   paragraph that reads,      "As outlined by the Magistrate
1
1

                19   Judge, plaintiff has not only filed the current cases
#T

        12:11 20     in this district,    but he has also filed almost a dozen

                21   previous cases in the Eastern District of Texas alone.
[^(

                22   Given plaintiff's history of filing lawsuits involving
[&r^
                23   the same or similar allegations,             the Court agrees with

                24   the Magistrate Judge that the plaintiff is a vexatious
FW

        12:11 25     litigant."
                                                                                       42




                 1                        MR. DRAKE:     Your Honor,    that's a big
#>


                 2   difference between declaring me as a vexatious

S\
                 3   litigant.        That particular federal judge was going by

                ,4   the Andrews case, which she was incorrect in believing
w$

        12:11    5   that the       Andrews case    had declared me a   vexatious

                 6   litigant.        In fact,    the appellate court said, no,
1S\

!                7   Mr.   Drake is not.         And they wouldn't let me even come

rfff
                 8   in to have a hearing.

                 9                        Moreover,    Mr. Graydon just pointed out
lii?

        12:12 10     two cases of Ms. Kastl.           Okay.   Neither one of those

                11   cases was ruled against me improperly.             Neither one.
[*»

                12                        Number one,    the case that he's citing

S?<             13   that's in Dallas County,          that case got dismissed by

                14   me.     Now,    he doesn't have,    probably,   privilege to
9l
        12:12 15     this,    and I'll have to file that with the appellate

T!$f\
                16   court.     So if you do rule against me,          I will file a

1               17   motion for new trial and put all of that evidence in

                18   there so the appellate court can see it.
f
                19                        Secondly,    the case that he's talking
1ST

        12:12 20     about in the county court,          there was no case ruled

                21   against me either, neither one.            He's gotten
[Si
1               22   misinformation and he's given this information to the
T^
                23   Court erroneously.

                24                        Now,    I will say this,   with the
iM

        12:12 25     county —       with the Dallas Court, he may not have that
                                                                                         43




                 1   information for some reason or another.        But what       I'm
«

                 2   saying to you is that what he's doing is compiling a

s                3   lot of cases here that the appellate court is going to

                 4   look at, because, you know,       if you rule against me,
is^

        12:13    5   I'm going to file a motion for new trial and put all

                 6   of that stuff into the record so that        I can show it to

r                7   the appellate court.

Wmt
                 8                      The —    the case in Dallas County,       I'm

                 9   telling the Court —        I'm not an officer of the Court,
'*$$
        12:13 10     but I am a licensed minister for 32 years,          and I'm

                11   telling the Court that that case was dismissed by me.
•


                12   By me.    The judge couldn't do anything with that case.
^l              13   Ginsberg came too late,      just like he's coming too late
    .




                14   here with this case.       And the county court case that
St/
        12:13 15     he's referring to, no, again,       that's not true either.

                16   And if the Court make a decision based upon these kind

                17   of facts —     well,   these are not actually facts —

SI              18   these erroneous suggestions to the Court,       without

                19   giving me a chance to show the Court through
W

        12:14 20     briefing —     and I think that's the best way to handle

                21   this, is just to tell —       he's filed —   say,    okay,

                22   Mr.   Drake,   if you feel like that's incorrect,      file me

*s?             23   a brief by blah, blah, blah, or I'm going to file a

                24   motion for new trial and file that and all          of it is
13

        -12:14 25    going to be there.      And then right after I file that,
                                                                                                     44




                 1   then I'm going to come right behind that with a
p                2   motion —     a notice of appeal, and it's going to be in

3SI              3   the appellate court, and they're going to say, well,
l_               4   Judge,    I'm sorry,       Mr. Drake is right.
^7
        12:14    5                        He did dismiss          that case    in    Dallas.        He

                 6   may not have that information.                Mr. Drake,        as far as
33


                 7   the case that he's talking about in the county court

W                8   at law, Ms.      —   Ms.    —    there was a dispute over

                 9   Ms.   Kastl's attorney's fees.               This is where that
70H
        12:14 10     Ms. Ogden and Ms.          Kastl got in.       And Ms. Kastl lied

                11   under oath      three   times because she was            scared she was

P               12   going to lose her license.              So Ms. Ogden changed her

SpI             13   transcript so that it wouldn't seem like she had done

                14   so.     But the court gave her attorney's fees.                    That's
p!
        12:15 15     not —    that's not a case that's ruled against me and

                16   against Ms.      Kastl.         I'm sorry.    That —      that is not.
wfo


                17   That's not what the statute is for.                It's not to go

#•,             18   and hedge and find anything that Mr. Drake does.                          And

    -

                19   that case is on appeal right now.                And he's already
FriTT
        12:15 20     said —    Mr.   Graydon already said that,               hey,    cases that

                21   are on appeal is not found determined against me.                          I

r               22   expect for the appellate court to agree with me.

fiffl           23   Ms. Kastl did a horrible job.

                24                        But this Court does not have everything
».
        12:15 25     before it right now.             And to make a decision without
                                                                                   45




      1    giving me a chance to properly respond would be an

      2    error,    or,   you know,   if you-— if you declare it

      3    anyway,    then I'm going to just, like I said,              file a

      4    motion    for new trial.      I   know what   to do.   I've done

12:15 5    it many times.       And then turn around and file an

      6    appeal.     It's there.     The appellate court is going to

      7    look at it and they're going to say,            Mr. Drake is

      8    right again.       He's right.     He is right.

      9                        The cases that he's given the court,              he

i2:i6l0    does not have all the information.             I want to be able

     11    to get that to this Court, to the trial court.                  And

     12    I'm asking the Court to take this under advisement, to

     13. give me a chance to respond in a brief - and he can

     14    respond - where I can attach whatever I need;                but,

i2:i6l5    nevertheless,      it's still don't overcome the fact that

     16    I can't call in my witnesses here because they're —

     17    they're blocking me.         They're —    they're keeping me

     18    from proving my case.

     19                        I   would love to have     Ms.   Kastl    be on

i2:i6 20   the stand.       I would love to have Ms.       Vikki Ogden there

     21    on the stand.       I would love to have Ginsberg there on

     22    the stand.       But I can't,     because they'll stop me.

     23    They're tying my hands and then want me to —                  want to

     24    declare me as a vexatious litigant.             That is wrong.

12:16 25                       MR. GRAYDON:      May I continue,
                                                                                              46




           1   Your    Honor?


           2                       THE    COURT:     Could       I    have the    exhibits?

           3                       MR.    GRAYDON:     Yes,          sir.

           4                       THE COURT:        And you may reply.

12   17    5                       MR.    GRAYDON:     They are tabbed

           6   (indicating).

           7                       THE COURT:        All right.

           8                      MR.     GRAYDON:     But they don't have

           9   stickers on them,         do they?

          10                       THE REPORTER:           Yeah,       I've been

          11   stickering them while I've been writing.

          12                       MR.    GRAYDON:     Okay.           Sorry.

          13                       THE REPORTER:           No,       they're not

          14   stickered.

12   17 15                         THE COURT:        No,    they're not attached.

          16                       You may reply.

          17                      MR.     GRAYDON:     Yes,          Your Honor.

          18                       The evidence before the Court speaks

          19   for itself as to whether these have been adversely

12   •17 20    determined against Mr.         -- Mr. Drake.                 They are

          21   supporting the 25 cases that are listed in the motion.

          22   The    Court   can review all       the evidence that's             before

          23   the Court, and it speaks for itself as to whether they

          24   have    —   whether Mr.     Drake has had at             least five

12   17 25     lawsuits that he filed, maintained,                     or prosecuted
                                                                            47




      1    within the last seven years that were adversely

      2    determined against him.     I do not need to demonstrate

      3    all 25;   I only need to show five.     I have,   in fact,

      4    provided the evidence to meet all 25.

12:18 5                     I will suggest to the Court that it

      6    look on Exhibit 1, on page five,      in which it says that

      7    it agrees that he is a vexatious litigant.         I will ask

      8    the Court to turn the page and see the prefiling order

      9    that is the federal analog to the order that we are

i2:i8l0    asking this Court to file.    The suggestion that that

     11    court did not find him a vexatious litigant as —            in

     12    the understanding of Civil Practice and Remedies Code

     13    Chapter 11 is simply factually and legally incorrect.

     14                    Moreover,   I would suggest that the

i2:i8l5    Court look at Exhibit 48.    Exhibit 48 is an opinion

     16    from the Court of Appeals in Drake v. Consumer County

     17    Mutual Insurance Company.    It demonstrates two things

     18    that are significant to this.    One is that that case,

     19    the opinion of which was handed down on September the

i2:i9 20   28th of 2010, was maintained by Mr. Drake as a pro se

     21    litigant within the last seven years; and that it was

     22    finally and adversely determined against him.         But

     23    more significantly,   this demonstrates, in the first

     24    paragraph, that in this case, Mr. Drake was attempting

i2:i9 25   to appeal an order declaring him a vexatious litigant.
                                                                                                 48




                1   And that order apparently came about,              according to
mj



                2   this document,      on appeal from the 44th Judicial

mt              3   District Court of Dallas County in Cause Number

                4   09-04284; that he was attempting to appeal an order
^1

       12:20    5   declaring him a vexatious litigant, and that his

                6   appeal was dismissed.          That it was not reversed.               The
^5



                7   trial court's judgment was not reversed.                 It was

S3|
                8   dismissed on appeal, which is an adverse determination

                9   against him.
S

       12:20 10                         MR.    DRAKE:     No,   it's not,   Your Honor.

               11   And, again, he is misconstruing things.                 The reason
i^l



               12   why it was dismissed is because the appellate court

«3f|           13   had agreed that -- and, of course,              I'd have to file

               14   all of this with the appellate court to review.                    But
Wl

       12:20 15     the Andrews case,         that's what this is from.         He's

               16   talking about the 44, that's from the Andrews case.
fS)

               17   That because the court had made a determination that

W®             18   the Andrews case had merit,            when the 4 4th had signed

               19   that order back in 2004 regarding that same case, that
W9

       12:21 20     when you have two cases that are of the same

               21   circumstances,      that a court has made a ruling,             then
HI


               22   the   latter case    also is    considered to be        moot.     So

SI             23   what he's doing now is trying to —               to alter the

               24   circumstances completely.

       12:21 25                         MR.    GRAYDON:     If I may continue,
                                                                                        49




         1   Your    Honor.


         2                        THE COURT:       Yeah.

         3                        MR. GRAYDON:       As you will see, the

         4   evidence speaks for itself.             It is not in the Andrews

12:21    5   case.     It is in a different lawsuit.                It is my

         6   understanding that the Andrews case was actually in

         7   the 68th District Court,            which is    —

         8                        MR.   DRAKE:     And that's where you're

         9   actually wrong,       sir.   And as I was saying, Your Honor,

12:2110      he's giving you --

        11                        MR. GRAYDON:       If I may continue,

        12   Your Honor.


        13                        THE COURT:       You can       answer later.

        14                        MR.   DRAKE:     All right,       sir.

12:21 15                          MR.   GRAYDON:     This    shows that the      court

        16   did not overrule an order declaring him a vexatious

        17   litigant out of the 44th District Court against —                     in

        18   the lawsuit,      Drake v.    Consumer County Mutual Insurance

        19   Company.

12:2220                           Your Honor,      the evidence is here.         As I

        21   have said,       I have not included in my 25, which is

        22   expressly stated in the motion itself -- I have not

        23   included the additional litigations that have not been

        24   adverse —        finally adversely determined against him.

12:2225                           The motion is clear,            and I don't want
                                                                                                     50




      1    the Court to get confused that some of these aren't

      2    final findings.            The ones that are not final,                     I have

      3    not    listed in those 25 cases.                I have also not               listed

      4    in those 25 cases,             because it,      under the statute,                 does

12:23 5    not qualify, but it is relevant for considering the

      6    nature of Mr.           Drake's actions.            A       case in the     Third JP

      7    Court here in Travis County that Mr.                           Drake filed

      8    against the Fifth Court of Appeals,                           the Court of

      9    Appeals for Dallas, when they ruled in a way that he

12:23 10   did not         like.

     11                             MR.   DRAKE:    Objection.              Small claims

     12    courts cases are not relevant,                  and it's just hearsay.

     13                             THE REPORTER:         It's just what?

     14                             MR.   DRAKE:    It    is       not    relevant.       Those

12:23 15   small      claims court        cases are      not       relevant.

     16                             And moreover,        Your Honor,          the biggest

     17    thing here,         as in the Andrews case, Mr. Graydon has

     18    filed a lot of paperwork with the Court,                           just like the

     19    previous attorneys have.                But one thing he has failed

12:23 20   to    do   is    to show   this Court        that       I    would be   —     it

     21    would be impossible or unlikely for me to be

     22    successful against each and every one of those

     23    defendants         in this     case.    He    has       failed to do        so.     He

     24    has given this Court misinformation,                           false

12:24 25   information.            And because the        Fifth Circuit            has
                                                                                                              51




                l   already said that you have to —                        that prong,          you have
"^1


                2   to prove that it is a reasonable probability that I

•               3   won't be successful.                   And he   has    failed to       do    so

                4   against each and every one of the defendants in this
1^1

       12:24    5   case.        He'll have to do that.                  He's avoided it,             but he

                6   cannot do so, and I know he can't.                           And without doing
w\


                7   that,    the Court cannot declare me as a vexatious

«a
                8   litigant without the appellate court reversing it.

                9   Just like in the Andrews case,                       I will bring it right
^^

       12:24 10     back up again.            And then, too,             with the due process

ji5|
               11   problems, stopping me from getting my witnesses here

               12   so that I can show the Court that this case is good,

SJ
               13   this case is good,                  this case has merit,         I have a right

               14   to be able to call these people.                        I did everything I
S|

       12:24 15     could do.          I did everything that is humanly possible.

               16   I tried to notice them for deposition.                           They quashed
«U


               17   that.        I   tried    to    —

mt             18                             THE COURT:          You're repeating now.                 You

               19   said that several               times.
p»
       12:25 20                               MR.       DRAKE:    Yes,    sir.     Well,    he's

               21   repeating himself,                  too,   quite a few times.
r
1
               22                             THE COURT:          I agree.

               23                             MR.       DRAKE:    Quite a few times.
r
               24                             What I'm saying here,               Your Honor,          is
pi)

       12:25 25     that    he       failed   to    —     to show the Court that            first
                                                                                          52




         1   prong, and that's what in the Andrews case was so

         2   significant to the appellate court.                    I argued that

         3   case where the —             where the judges said to the

         4   defense,     now,    show me how this case does not have

12:25    5   merit.      And,    of course, he just about swallowed the

         6   whole courtroom,           but he couldn't.         Neither can

         7   Mr. Graydon show this Court that.                   He can't show this

         8   Court that.

         9                          THE COURT:        Anything further?

12:25 10                            MR.    GRAYDON:     Your Honor,     Mr.    Drake was

        11   noticed for the hearing today.                  All evidence has been

   . 12      put forth for the hearing.                I have nothing further.

        13                          THE COURT:        Defendant's     motion    is

        14   granted.

12:26 15                            MR.    GRAYDON:     May I present the Court

        16   with a proposed order?

        17                          THE COURT:        You may.      Give Mr.    Drake a

        18   copy.

        19                          MR.    DRAKE:     I will be filing a motion

12:26 20     for a    new t r i a l ,   and then I     will file a     motion for

        21   appeal.

        22                          THE COURT:        That's your right.

        23                          MR.    DRAKE:     Yes,   sir.

        24                          MR.   GRAYDON:      And,   Your Honor,     so that

12:26 25     the Court is aware, on the first page of the proposed
                                                                                                53




                     1   order that I —     I wrote, I start a paragraph saying,
pS)

                     2   "In accordance with Texas Rules of Civil Procedure,"

    3*1              3   and I say, "this Court," I would suggest to the Court

                     4   that when I drafted this, I did not know a visiting
    «S)

            12:26    5   judge who was not subject to the motion to recuse

                     6   would be hearing it.        I would suggest that instead of
[3S|

r                    7   the words "this Court," it could be substituted with a

    iw               8   judge subject to a motion to recuse or the respondent

                     9   judge, either one of which I think - I presented you
    SI
            12:26 10     with Rule 18a - might be a better language for those

                    11   two    words.
    m


                    12                     THE COURT:        You may print it in.

    iffil           13                     MR.    GRAYDON:     Yes,    sir.
_




                    14                     MR.    DRAKE:     The plaintiff would also
    ™a
            12:27 15     like to have your reasons for your decision,

                    16   Your    Honor.

P                   17                     THE COURT:        That's not proper at this

    nSI             18   time.     Request is denied.

                    19                     MR.    DRAKE:     Well,    I will be filing,
    ?S|
            12:27 20     like I said, my motion for new trial,                and then I will

                    21   put everything in there,          and then I will also file a
    W|


                    22   motion for appeal.

    TSI             23                     Now,    you realize,       Mr.   —   Mr. Graydon,

                    24   that this order here is not going to be effective to
    WB
            12:27 25     stopping me from filing anything in state court until
                                                                                      54




           1   after the appellate court has made a ruling on it.

           2   You realize that,       don't you?

           3                     THE    COURT:     Also    —

           4                     MR.    DRAKE:     Then he don't know.        Okay.

12   28    5                     THE COURT:        Also,       there will be no

           6   security.     I'm going to mark that out.

           7                     MR.    GRAYDON:     Yes,       sir.

           8                     MR.    DRAKE:     No,    he couldn't get

           9   security.     Thank you,    Judge.

12   28 10                       So now we've -- so now that you've

          11   declared me as a vexatious litigant, and everything

          12   else,   and the Court is —        and the case is -- is

          13   nonsuited,    I guess I can't file a —              I won't be able

          14   to file a —     well,    then, procedurally, the —

12   28 15                       THE COURT:        I can't give you legal

          16   advice.     You'll have to do it on your own.

          17                     Court    is   recessed.

          18


          19


          20


          21


          22


          23


          24


          25
                                                               55




 1                      REPORTER'S   CERTIFICATE


 2   STATE   OF TEXAS         )
                              )
 3   COUNTY OF TRAVIS         )

 4            I, Rhonda Watson, Official Court Reporter in

 5   and for the 353rd District Court of Travis County,

 6   Texas, do hereby certify that the above and foregoing

 7   contains a true and correct transcription of all

 8   portions of evidence and other proceedings requested

 9   in writing by counsel for the parties to be included

10   in this volume of the Reporter's Record,        in the

11   above-styled and numbered cause,      all of which occurred

12   in open court or in chambers and were reported by me.

13            I further certify that this Reporter's Record

14   of the proceedings does not include the exhibits

15   offered in evidence, per the request of Plaintiff.

16            I further certify that the total cost for the

17   preparation of this Reporter's Record is $378.00 and

18   was not paid by Plaintiff due to claim of indigency.

19            WITNESS MY OFFICIAL HAND this the 2nd day of

20   October,   2014.

21
                   /s/ Rhonda Watson
22            Rhonda Watson, Texas CSR No.    2022
             Expiration Date:  12/31/2014
23           Official Court Reporter, 353rd District Court
              Travis County, Texas
24            P.O. Box 1748, Austin, Texas     78767
              Telephone (512) 854-9356
25
