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Partain v. State

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

April 20, 2017


         On appeal from the 404th District Court of Cameron County, Texas.

         Before the Court En Banc

         Order Per Curiam


          PER CURIAM

         This cause is before this Court on appellant's "Motion to Transfer this Case to the 14th Court of Appeals." In this motion, appellant requests that the Chief Justice of this Court and Chief Justice Kem Thompson Frost of the Fourteenth Court of Appeals to "consider this request and to forward a copy of this motion to the Supreme Court, along with a letter stating your concurrence or non-concurrence with his request to transfer." Appellant's motion broadly asserts that he has been the subject of official oppression, abuse of office, and political retaliation by various trial court judges, the Hidalgo County District Attorney's Office, and the Justices of the Thirteenth Court of Appeals. We construe appellant's motion as containing an implicit request for the recusal of the Justices of the Thirteenth Court of Appeals. As discussed herein, we deny the implicit motion to recuse and, by way of this order, notify the Texas Supreme Court that we have no objection to the proposed transfer.

         I. Background

         In this cause, appellant has appealed a conviction for theft in the amount of $1, 500 or more, but less than $20, 000. See Tex. Penal Code Ann. § 31.03 (West, Westlaw through 2015 R.S.). Appellant has frequently appeared before this Court in various other appeals and original proceedings. See, e.g., In re Partain, No. 13-16-00516-CV, 2016 WL 5846549, at *1 (Tex. App.-Corpus Christi Sept. 3, 2016, orig. proceeding) (per curiam mem. op.); Partain v. Guerra, No. 13-13-00341-CV, 2015 WL 4116727, at *1 (Tex. App.-Corpus Christi July 2, 2015, no pet.) (mem. op.); Partain v. Estate of Maples, No. 13-14-00584-CV, 2015 WL 5092167, at *1 (Tex. App.-Corpus Christi June 25, 2015, pet. dism'd w.o.j.) (mem. op.); Partain v. Maples, 438 S.W.3d 69, 70 (Tex. App.-Corpus Christi 2013, no pet.); Partain v. Maples, No. 13-11-00289-CV, 2012 WL 29258, at *1 (Tex. App.-Corpus Christi Jan. 5, 2012, no pet.) (per curiam mem. op.); In re Maples, No. 13-08-00524-CV, 2008 WL 4515808, at *1 (Tex. App.-Corpus Christi Oct. 8, 2008, orig. proceeding [mand. denied]) (per curiam mem. op.); In re Partain, No. 13-11-00276-CV, 2011 WL 1936057, at *1 (Tex. App.-Corpus Christi May 18, 2011, orig. proceeding) (per curiam mem. op.).

         Appellant asserts that the Justices of this Court should not hear or consider appellant's case in this cause because of official oppression and corruption. Appellant's motion to transfer reads in part:

Appellant does not bring this motion lightly, but on the weight of a long solid history of serious abuses of judicial discretion, official oppression in the South Texas judiciary and Hidalgo District Attorney's Office, and a warning of political retaliation from public officials through the Hidalgo County Sheriff's Office which are intertwined with this instant criminal process. Consider the following.
It is difficult to precisely or richly communicate years of successful yet antagonistic process in this relatively short motion, but it should be blatantly clear on the aforementioned considerations that the Appellant has been the target of unconstitutional acts and official oppressions which have reached and sullied the 13th Court of Appeals through politics with the Hidalgo County District Attorney's Office since about 2012. Appellant has a right to a fair and unbiased judiciary and no citizen should ever be exposed to what the Appellant has suffered in South Texas ("third world corruption" quoting Governor Greg Abbott, former Attorney General of Texas, describing South Texas). Appellant looks forward to oral arguments.

         Appellant contends that this Court has "[m]anufactured facts" and made "misrepresentations of law" with regard to his previous appeals. He asserts that "[s]o many outrageous errors of fact and law prove official oppression, not accident or incompetence." Appellant thus requests that the Texas Supreme Court transfer this case to the Fourteenth Court of Appeals.

         II. Recusal

          The Court, having examined and fully considered appellant's motion, is of the opinion that it in substance seeks the recusal of the Justices of this Court. See State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) ("We look to the substance of a plea for relief to determine the nature of the pleading, not merely at the form of title given to it."). We treat it accordingly. "The manner in which our judicial system handles the recusal of judges affects public confidence in the judiciary, as it goes to the 'very heart of the promise of impartiality.'" Ex parte Thuesen, No. WR-81, 584-01, 2017 WL 510563, at *4, __S.W.3d__, __ (Tex. Crim. App. Feb. 8, 2017) (per curiam) (quoting Johnson v. Pumjani, 56 S.W.3d 670, 672 (Tex. App.-Houston [14th Dist.] 2001, no pet.)).

         “All judges have the duty to sit and decide matters brought before them, unless there is a basis for disqualification or recusal.” Rogers v. Bradley, 909 S.W.2d 872, 879 (Tex. 1995) (Enoch, J., concurring); see Ex parte Ellis,275 S.W.3d 109, 115 (Tex. App.-Austin 2008, no pet.); In re K.E.M., 89 S.W.3d 814, 819 (Tex. App.-Corpus Christi 2002, no pet.); see also TEX. CODE JUD. CONDUCT, Canon 2(A), reprinted in TEX. GOV'T. CODE ANN., tit. 2, subtit. G, app. B (West, Westlaw through 2015 R.S.) (“A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate.”). In fact, judges have “as much of an obligation not to step down from a case when there is no reason to do so as they have to do so when there is a reason.” In re K.E.M., 89 S.W.3d at 819; see Rogers, 909 S.W.2d at 879 (Enoch, J., concurring); Ex parte ...

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