                                                                                       ACCEPTED
                                                                                   03-14-00665-CV
                                                                                           6564923
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                              8/19/2015 2:24:46 PM
                                                                                 JEFFREY D. KYLE
                                                                                            CLERK
                          Case No. 03-14-00665-CV
                      ______________________________
                                                            FILED IN
                                                     3rd COURT OF APPEALS
                   IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS
                        THIRD JUDICIAL DISTRICT      8/19/2015 2:24:46 PM
                              AUSTIN, TEXAS            JEFFREY D. KYLE
                      ______________________________         Clerk


                                 ERIC DRAKE

                              Plaintiff - Appellant,

                                       vs.

                        KASTL LAW FIRM P.C., ET. AL.

                           Defendants - Appellees.
                      ______________________________

             On Appeal from the 200th District Court, Travis County
                         Case No. D-1-GN-14-001215



     APPELLEE’S RESPONSE IN OPPOSITION TO APPELLANT’S
                    MOTION TO RECUSE

TO THE HONORABLE COURT OF APPEALS:

      COMES NOW Seana Willing, Appellee herein, and files this Response in

Opposition to Appellant’s Motion to Recuse, which was filed by Appellant Eric

Drake (“Appellant”) on August 13, 2015, and would respectfully show this Court

the following:
                                    I.
                          PROCEDURAL BACKGROUND

         On April 7, 2015, this Court, having received briefing from parties, denied

oral argument and determined that this case would be decided on submission.

         The case is set for submission on briefs on August 27, 2015.

         On August 13, 2015, Appellant filed a motion to recuse three justices of this

Court.

         This is a delaying tactic and the motion to recuse should be denied.

                                   II.
                RESPONSE TO APPELLANT’S MOTION TO RECUSE

         “A party seeking recusal must satisfy a ‘high threshold’ before a judge must

be recused.” Ex parte Ellis, 275 S.W.3d 109, 115–17 (Tex.App.-Austin 2008), citing

Liteky v. United States, 510 U.S. 540, 558, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)

(Kennedy, J., concurring). The movant’s “burden is only satisfied when the movant

provides facts demonstrating the presence of bias or partiality ‘of such a nature and

extent as to deny the movant due process of law.’ ” Id., at 117. (citations omitted).

         Conclusory statements, conjecture, or mere assertions of bias will not satisfy

the burden or overcome the presumption of impartiality. Id.
      Appellant’s Motion to Recuse is not based on any specific factual assertion of

a bias, only his unsupported conclusory statements, conjecture, and mere assertions

of bias.

      For example, in attempting to recuse Chief Justice Rose, Appellant’s

reasoning consists solely of Appellant’s statement that he “does not believe” that

Chief Justice Rose can be unbiased in determining a legal matter, solely because

“[a]t one time he was an assistant Attorney General” and Appellant does not like

Assistant Attorneys General. (Motion to Recuse, ¶ 2).

      Appellant’s reasoning related to Justice Goodwin is even more speculative, as

Appellant’s sole suggestion is that he “believes that it is reasonable that Justice

Goodwin have white friend judges…” (Motion to Recuse, ¶ 3).

      Appellant also seeks recusal of Justice Puryear “because he at one time was

an assistant Attorney General.” (Motion to Recuse, ¶ 4). Justice Puryear is

apparently not on the panel of judges who would be determining this matter anyway.

      None of these conclusory assertions support Appellant’s assertions of bias.

      Rather, this motion to recuse, like his contemporaneous filing in which he

threatens litigation against the spouses, children, and other relatives of the Justices

(Appellant’s Response to the Court’s Inquiry Regarding Jurisdiction, filed August
13, 2015, ¶ 4), is just another vexatious litigation tactic 1 employed by Appellant,

who also tried to recuse Justices of this Court with similar logic after his petition for

mandamus was denied. See In re Drake, Cause No. 03-14-00583-CV, in the Third

Court of Appeals of Texas. (Motion filed September 26, 2014 and denied on

October 14, 2014).

       Because there is no basis in fact or law for Appellant’s Motion for Recusal,

that motion should be denied.

                                              Respectfully submitted,

                                              KEN PAXTON
                                              Attorney General of Texas

                                              CHARLES E. ROY
                                              First Assistant Attorney General

                                              JAMES E. DAVIS
                                              Deputy Attorney General for Defense
                                              Litigation

                                              ANGELA V. COLMENERO
                                              Chief–General Litigation Division


                                              /s/ Scot M. Graydon
                                              Scot M. Graydon
                                              Assistant Attorney General
                                              State Bar No. 24002175

1
  One week before Appellant filed these documents, in an unpublished opinion, the United States
Court of Appeals for the Fifth Circuit upheld the federal equivalent of a vexatious litigant finding,
“pre-filing sanctions based on Drake's abusive filing history…” See Drake v. Navstar Intern.
Corp., Cause No. No. 14–51240, 2015 WL 4646361 *2 (5th Cir. - August 6, 2015)(Emphasis
added).
                                       Office of the Attorney General
                                       P.O. Box 12548
                                       Austin, Texas 78711-2548
                                       (512) 463-2120
                                       (512) 320-0667 - facsimile

                                       ATTORNEYS FOR APPELLEE SEANA
                                       WILLING




                         CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing document was
sent via regular mail and certified mail, return receipt requested on August 19, 2015
to:

      Eric Drake
      PO Box 833688
      Richardson, Texas 75083
      Pro Se Appellant

                                       /s/ Scot M. Graydon
                                       Scot M. Graydon
                                       Assistant Attorney General
