United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE
Sarah Marie Bucklew removed to this Court her ongoing state
misdemeanor criminal prosecution pending in Dallas County.
See Dkt. No. 1; see also State v.
Bucklew, No. M-1804091-D (Cnty. Ct. of Crim. App. No. 1,
Dallas Cnty., Tex.). Her action has been referred to the
undersigned United States magistrate judge for screening
under 28 U.S.C. § 636(b) and a standing order of
reference from United States District Judge Jane J. Boyle.
The undersigned enters these findings of fact, conclusions of
law, and recommendation that the Court should sua
sponte remand this action to the County Court of
Criminal Appeals No. 1 of Dallas County, Texas.
Standards and Analysis
federal courts' jurisdiction is limited, and federal
courts generally may only hear a case if it involves a
question of federal law or where diversity of citizenship
exists between the parties. See 28 U.S.C.
§§ 1331, 1332; see also Borden v. Allstate Ins.
Co., 589 F.3d 168, 172 (5th Cir. 2009) (federal question
jurisdiction under Section 1331 “exists when ‘a
well-pleaded complaint establishes either that federal law
creates the cause of action or that the plaintiff's right
to relief necessarily depends on resolution of a substantial
question of federal law'” (quoting Franchise
Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1,
27-28 (1983))); cf. Ruhrgas AG v. Marathon Oil Co.,
526 U.S. 574, 583-84 (1999) (federal courts have an
independent duty to examine their own subject matter
U.S.C. § 1455, however, provides for the removal of
criminal prosecutions. “When a defendant removes a
criminal prosecution from state court, it is incumbent upon
the United States District Court ‘in which such notice
is filed [to] examine the notice promptly.'”
Texas v. Kearns, No. 5:14-cv-27-DAE, 2014 WL 258786,
at *1 (W.D. Tex. Jan. 23, 2014) (quoting 28 U.S.C. §
1455(b)(4)). And, “[i]f it clearly appears on the face
of the notice and any exhibits annexed thereto that removal
should not be permitted, the court shall make an order for
summary remand.” 28 U.S.C. § 1455(b)(4); cf.
Pennsylvania v. Brown-Bey, 637 Fed.Appx. 686 (3d Cir.
2016) (per curiam) (“summarily affirm[ing] the order of
the District Court summarily remanding [defendant's]
criminal case to state court”).
United States Court of Appeals for the Fifth Circuit has now
explained, Section 1455
does not provide criminal defendants with a separate right to
remove their cases from state court. Rather, as the
provision's heading and plain language indicate, §
1455 merely provides procedures that must be followed in
order to remove a criminal case from state court when a
defendant has the right to do so under another provision,
such as 28 U.S.C. § 1443.
Kruebbe v. Beevers, 692 Fed.Appx. 173, 176 (5th Cir.
2017); accord SolamunBey v. City of
Mesquite, No. 3:17-cv-1750-G-BN, 2017 WL 3173019, at *1
(N.D. Tex. July 4, 2017) (collecting cases), rec.
accepted, 2017 WL 3149368 (N.D. Tex. July 25, 2017);
see also Mnuk v. Texas, No.
A-14-cv-1128-SS, 2015 WL 1003863, at *2 (W.D. Tex. Mar. 5,
2015) (“Only a very small class of criminal cases are
removable to federal court. 28 U.S.C. § 1442 (criminal
actions against federal law enforcement officers or officials
for acts taken in their official duties); 28 U.S.C. §
1442a (prosecutions of members of the armed forces); 28
U.S.C. § 1443 (prosecutions against officials enforcing
or persons protected by civil rights statutes).”),
rec. adopted, 2015 WL 4395376 (W.D. Tex. July 16,
to Section 1443, the only substantive provision of the
federal removal statute that could be applicable here, this
provision “is construed narrowly, ” City
of Houston v. Club Fetish, Civ. A. No.
H-13-0944, 2013 WL 1767777, at *3 (S.D. Tex. Apr. 24, 2013)
(citing Smith v. Winter, 717 F.2d 191, 194 (5th Cir.
1983)), and in pertinent part provides that
of the following civil actions or criminal prosecutions,
commenced in a State court may be removed by the defendant to
the district court of the United States for the district and
division embracing the place wherein it is pending:
(1) Against any person who is denied or cannot enforce in the
courts of such State a right under any law providing for the
equal civil rights of citizens of the United States, or of
all persons within the jurisdiction thereof[.]
28 U.S.C. § 1443(1).
another judge of this Court has explained,
[i]n Texas v. Gulf Water Benefaction Co., 679 F.2d
85 (5th Cir. 1982), the Fifth Circuit articulated a two-prong
test to determine whether ...