Let the Games Begin.
So, you’ve been [falsely] accused of committing a “transportation” offense by some improperly informed, improperly educated, and improperly trained authoritarian statist funded robot that seized you at your liberty and held you in an unreasonable custodial arrest without a proper warrant of arrest or any articulable probable cause just so that s/he could issue you a “[un]uniform traffic citation” that you must now deal with.
The citation tells you that you must appear on some future date and time before some particular magistrate presiding over some particular court named on the citation that allegedly has jurisdiction of the offense.
Although, it should be clear to anyone that can read and comprehend constitutional language and principles that it is a direct violation of the separation of powers provision of Article 2 of the Texas Constitution and Penal Code Sec. 32.48 for a municipal or state police officer to issue an ‘order’ via a “transportation” citation that simulates a legal process such as a subpoena or summons. Sheriffs and constables, however, might potentially be excluded as being capable of committing such violations. The basis for asserting that it’s a violation of the separation of powers and the law is that both municipal and state police officers are executive branch functionaries and agents, and the issuance of a summons or subpoena having the legal force of a full-fledged judicial order requiring an individual’s compliance is entirely a judicial branch power and function, which executive officers are constitutionally forbidden to exercise. The basis for asserting that sheriffs and constables are potentially exempted from being charged with such violations is that their offices are actually established, by the Texas Constitution in Art. 5, Secs. 23 and 18 respectively, as officers of the judicial branch of government rather than the executive. But this particular issue is not the focus of this article.
The Initial Appearance Requirements and Duties of the
When you eventually appear at the court named in the paperwork that accompanied the citation “on or before” the appointed date and time, as that phrase is typically printed on most of these citations, the magistrate is required by the Code of Criminal Procedure to perform the duties imposed upon him/her by Art. 15.17 of that code. And s/he is required to do so in simultaneous compliance with the provisions of Arts. 45.018(b), 16.01, 27.14(d), and 14.06(b) and (c) of that same code. It is imperative, however, that you make no oral response or written pleading to anything that happens in that court room without first reserving your right to special appearance by stating the phrase:
“Pursuant to Art. 1.02, Code of Criminal Procedure and Rule 120a, Texas Rules of Civil Procedure, I hereby reserve my right of special appearance for the purpose of challenging the jurisdiction of this court and these proceedings, and the court should be well aware that a challenge requiring an evidentiary determination of a court’s jurisdiction is both a civil matter and proceeding.”
The judge may try to tell you that, since this is presumed to be a criminal matter, a special appearance doesn’t apply. And if s/he does so, you should again state:
“Objection! A challenge to a court’s jurisdiction, and any proceeding convened for the purpose of determining that jurisdiction, is a civil matter, not criminal. There is no evidence of in personam or subject matter jurisdiction on the record, and as a matter of right I am challenging the jurisdiction of this court by demanding that the state be ordered to produce its evidence on and for the record proving that the officer’s warrantless arrest of the Accused was based upon both reasonableness and articulable probable cause establishing that the Accused is a person that was engaged in and had a legal duty to perform under the regulated subject matter of “transportation” as governed by the commercial regulatory code of the same name so as to properly establish and invoke this court’s subject matter and in personam jurisdiction over the Accused.”
What arrest? We Didn’t Do No Stinking Arrest!
Be aware that the prosecution will almost certainly object and attempt to claim that no arrest ever took place. However, the Texas Court of Criminals appeals ruled differently in the case of Azeez v. State, 248 S.W.3d 182, wherein the court said “We have construed this provision [Sec. 543.001, Transportation Code] to mean that, [**22] at least as a matter of state law, a restriction upon personal liberty that amounts to less than “full custodial arrest” may nevertheless constitute an ‘arrest.’” Like most federal courts, the Texas courts are notorious for making rulings that favor governmental power grabs over individual rights, the rule of law, and constitutional conformity, whether that conformity be state or federal. But this myopic analysis in Azeez that tries to make it appear that a law enforcement officer’s roadside seizure does not actually constitute a full-blown custodial arrest does not appear to harmoniously coexist with the United States Supreme Court’s idea of what constitutes a custodial arrest.
Justice Stewart’s opinion in the 1980 Mendenhall case first set the current standard whereby an individual may determine if they are being held via a warrantless custodial arrest “a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave, and as long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would require some particularized and objective justification.”
The Supreme court would soon set that bar even lower in the case of California v. Hodari D. when the court ruled that “To constitute a seizure of the person, just as to constitute an arrest — the quintessential “seizure of the person” under Fourth Amendment jurisprudence — there must be either the application of physical force, however slight, or, where that is absent, submission to an officer’s “show of authority” to restrain the subject’s liberty.” The latter being consistent with the level of detention found in your common everyday traffic stop. Even more so in Texas since the statute plainly states that the officer has arrested you and may release you from custody if you sign the citation promising to appear later in the designated court. The statute even uses the term “custody.” So why is the Texas Court of Criminal Appeals even having a discussion as to whether or not the arrest is a warrantless custodial arrest that is fully afforded 4th and 5th Amendment protections? Because they are attorneys who require and thrive on conflict in order to justify their existence and continuing theft of the people’s money in the form of salaries and benefits for themselves and fines and fees for the various levels of government, that’s why.
Therefore, the prosecutor is blatantly lying to the court when s/he says that what took place on the roadside was merely an investigative detention rather than a warrantless custodial arrest. So what do you do about it? I would suggest something like this:
“Objection! The prosecution appears to be misrepresenting the facts in an effort to mislead this court and deprive the Accused of the right to an examining trial for a proper determination of reasonableness and probable cause by a neutral and detached magistrate. The prosecution should be well aware of the Texas Court of Criminal Appeals case of Azeez v. State decided in 2008, wherein the court states that a traffic stop in Texas does constitute a warrantless arrest.
The prosecution should be as equally aware of the United States Supreme Court’s determinations in the cases of Mendenhall and Hodari, wherein the court ruled that a person was considered to be in a custodial arrest if the they believe that they were unable to leave because they are being subjected “to an officer’s “show of authority” to restrain the subject’s liberty,” which is precisely what occurred in this matter. The Accused specifically asked if they were free to leave and the arresting officer immediately responded that they were not free to leave.”
Don’t let them try to tell you or act like there wasn’t a warrantless custodial arrest, because there absolutely was.
However, you must be forewarned that none of this will ever happen in the manner and order prescribed by common sense, law or statute, which is precisely how I’ve laid it out here. And while you must expect that it will be either ignorantly or intentionally ignored or incorrectly done, you must not simply ignore it or allow it to happen. You must be prepared to object to everything that the magistrate/judge and the prosecutor fails to do that violates constitutional protections, the law, the rules of procedure, and your inherent fundamental rights, including demanding the judge’s or prosecutor’s immediate disqualification from the case. Be aware, however, that the disqualification of a Texas judge from a case requires a written pleading of the facts that support the disqualification, and it must be made and filed under oath, i.e. under penalty of perjury.
I Swear to Tell the Truth, Except I Don’t Really Do Either.
Isn’t it funny how you and I are required to do virtually everything “under penalty of perjury” and other threats of dire punishment for making any false writings, claims, or allegations whenever we have dealings with our public servants, but those same public servants aren’t required to verify the truth and validity of their own claims and actions “under penalty of perjury” when dealing with or moving against us? And to add insult to often serious injury resulting from any perjury they may commit, they are even more likely to simply walk away scot-free and unaccountable for doing so, even when they’ve been caught red-handed, and regardless of the harm they may have caused with their lies.
Since you are now somewhat forewarned that Texas municipal and justice courts are notorious for not playing by the rules, and very often prefer just making up their own as they go, you must learn to cope with their actions that are in violation of the law, the rules, and your rights. The best way I know of to do that is by knowing as much as possible about what their rules and procedures actually require them to do, while also being able to readily identify what they are actually doing that is in direct violation of those rules and procedures, and potentially your due process rights in the process. I am going to go into detail about several of the initial and most important violations that will almost certainly occur in your case.
One of the first of many things they do wrong is to violate your right of proper, sufficient and timely notice of the allegations against you by failing to serve you with a copy of a valid verified criminal complaint for each alleged offense, which is almost never done prior to the initial appearance proceeding you are “ordered” to appear for on the citation. That failure is a direct violation of the criminal procedures and your due process rights under the provisions of Arts. 45.018(b), 2.04, and 2.05, Code of Criminal Procedure. It is in no way proper, sufficient or timely when they serve you with the complaint on the day of a court proceeding since the code clearly states that the Accused “is entitled to” such service “no later than one day prior to any proceeding in the prosecution under that complaint.”
Which means that you must also fully understand that the phrase “is entitled to” “creates or recognizes a right,”  a right that the prosecution and the court just knowingly and willfully violated. It is also not in any way fair, impartial, or just, that the Accused would have been afforded absolutely no time prior to the proceeding in which to read and prepare a proper set of pleadings in relation to the jurisdiction and allegations as written into the criminal complaint(s), as it is a verifiable fact that the specific allegations and their language as written into the criminal complaint(s) is almost always vastly or completely different from that which is written on the face of the citation. This is precisely why the right to be served with a copy of the complaint(s) “no less than one day prior to any proceeding” is imperative and protected by the Code of Criminal Procedure, but entirely ignored or outright denied by the vast majority of our Texas justice and municipal courts.
The prosecutor may well stand up in court, especially if s/he is a city attorney in a large municipality, and try to say something like:
“Your honor, the criminal complaints have been available to the defense by simply going to the municipal web site and downloading a copy for themselves. Since they are publicly accessible the defendant has had ample opportunity to obtain a copy. Proper notice and service of the complaint has been done under those circumstances and conditions and would I ask that the court overrule the defendant’s objections relating to improper notice.”
This is where you better be listening to what you are hearing, so you can properly respond to this inept and underhanded dribble from the municipal, county, or district scumbag before it’s too late. Your immediate response needs to be:
“Objection! Is the prosecuting attorney seriously attempting to singlehandedly rewrite the law on proper, sufficient and timely service and notice as required by Arts. 28.01, Sec. 3, Code of Criminal Procedure, which requires service be performed by either personal service or by mail as it cannot be made in open court without violating the Accused’s protected right to have a copy (service) prior to any proceeding under 45.018(b)? I can find no statutory authority for the prosecution to provide notice by posting something on a web site, regardless of who controls it or how long its allegedly been posted there.
Therefore, I move that the court order the prosecution to produce any evidence that the Accused was even informed about the existence of this web site or how to access it, much less provided with any necessary information and instruction on how to obtain any specific documents or information from it relating to this matter.”
We Can Use the Citation as a Complaint, (But Only if You Let Us)!!
You will also find that they very often attempt to claim that they are automatically and fully authorized by Art. 27.14(d) of the Code of Criminal Procedure to use the citation alone as the complaint against you, and that you are required to enter a plea based solely upon the existence of the citation alone. This is yet another one of their outright lies made in a blatant attempt to violate your fundamental rights and the rules of criminal procedure. Coercing the Accused into entering a plea based solely upon the citation without properly and accurately informing him/her of their rights, and which ones they may be unknowingly waiving by doing so, is a direct violation of Arts. 2.04, 2.05, 27.14(d), and Chapter 21 of the Code of Criminal Procedure, and the due process rights of the Accused under the provisions of Art. 1, Sec. 10, Texas Constitution, and Arts. 1.05 and 45.018(b), Code of Criminal Procedure.
The judge and the prosecutor are knowingly and willfully acting in concert and collusion to misinform the Accused in a such way that one can only assume is specifically intended to violate his/her rights by falsely stating how Art. 27.14(d) actually operates. Neither the prosecution nor the court is authorized to use the citation in place of a complaint unless the requirements of 27.14(d) have been complied with, and they most certainly have not at this point unless someone is criminally forging the signature of the Accused on the required written waiver.
In its operation as written, Art. 27.14(d) makes it mandatory that, before the court may use the citation in lieu of a properly verified criminal complaint, the Accused and the prosecutor must both agree to, and both sign, a written waiver allowing the court to accept a plea of “guilty” or “nolo contender” only, and then proceed to adjudicate and rule on that entered plea absent a verified complaint. And that waiver must be filed in the trial record of the court prior to taking these actions.
Obviously, if you haven’t ever signed such a waiver, then the court’s authority to use the citation in place of a valid verified complaint under Art. 27.14(d) must be non-existent, and therefore, a knowing and willful lie intended to deceive the Accused into unwittingly waiving their fundamental right to being served with a valid complaint that provides the otherwise mandatory proper, sufficient and timely notice of the allegation(s). Not to mention an underhanded due process denying attempt to cause you to waive your right to challenge the form and substance of the complaint(s) by failing to object to either issue, thus, allowing them to continue with the prosecution against you even if the complaint is faulty in form or entirely false in substance.
So, be sure to object to the prosecutor and the court trying to tag-team bully you into allowing them to use the citation as a complaint:
I object! The Accused has never seen nor signed the written waiver required by Art. 27.14(d) of the Code of Criminal Procedure. If such a waiver exists in the court record it is a fraud and I demand the court find the person or persons responsible for forging my signature and placing it there.
I have not and do not consent to the use of the citation as a verified complaint for any purposes whatsoever, and object to this obvious attempted denial and subversion of my due process rights in this matter. This is grounds for immediate judicial disqualification and prosecutorial sanctions for misconduct.
I therefore move that the judge of this court be disqualified and the prosecutor responsible for this case be sanctioned, removed, and disbarment proceedings initiated for these knowing and willful criminal acts in violation of the rights of the Accused.
Neither Citations nor Complaints Alone Can Constitutionally or Legally Invoke a Court’s Jurisdiction.
The use of the citation as the complaint also raises yet another issue, that of jurisdiction being properly invested in the court. If you read any number of Texas court cases relating to a criminal complaint as being the only charging instrument necessary to invest a justice or municipal court with jurisdiction of the offense for the purpose of trial, you will find that those cases have set the existence of such a complaint as the minimum bar by which the court may be invested with such jurisdiction. And there should be no legitimate question that a mere citation is well below that minimum bar in that it does not meet all of the statutorily mandated requirements for a valid complaint under the provisions of Art. 45.019(a), Code of Criminal Procedure.
Furthermore, these court opinions are themselves formulated in direct violation of both Art. 5, Secs. 12(b) and 17 of the Texas Constitution, as well as Arts. 2.04, and 2.05 of the Texas Code of Criminal Procedure. All of which require that an indictment and/or information be filed in conjunction with a criminal statement/affidavit and a separate criminal complaint in order to initially invest a trial court with jurisdiction of the cause.
The Texas district courts of appeals and the court of criminal appeals have all penned opinions stating that these constitutional provisions requiring a court’s jurisdiction to be invoked by the filing of a valid indictment or information are somehow irrelevant and of no legal value or authority. However, it is not any real problem at all to prove that they have knowingly and willfully erred in their logical and literal analysis of the language of these constitutional provisions.
For instance, the Texas Constitution never states that jurisdiction, once properly invested in a court by the filing of such charging instruments, is later lost if an indictment or information is quashed or otherwise found to be invalid, as it states plainly that if the indictment be quashed in the county, then the accused is not required to be discharged, but can still be held to answer the allegations in the sworn criminal affidavit. The Texas Constitution states only that the indictment and information must initially exist (and be facially and lawfully valid) for jurisdiction to be initially invested in the court. The due process benefits and protections for the rights of the Accused inherent in following this procedure should be rather obvious.
Furthermore, the Texas Constitution also alludes to the fact that a sworn statement/affidavit that was filed in conjunction with an indictment or information, which is the only thing that can lawfully provide the basis for either of those charging instruments, may continue to serve as the basis for the court to maintain its now properly invoked jurisdiction, and allows the court to continue with the necessary proceedings and any resulting trial even if the indictment or information has been quashed.
But absolutely nowhere does the Texas Constitution state or infer that a mere verified but unsworn criminal complaint alone is in any way authorized to form the basis for initially invoking any court’s jurisdiction. Nor does it state that a criminal complaint is the lawful or legal equivalent of a criminal statement/affidavit, which it legally can’t be, because a statement/affidavit is normally written and then signed by a person with competent firsthand knowledge of the facts alleged within it, and it will also contain a proper jurat declaring that it is signed under penalty of perjury.
Who Can File a Criminal Complaint?
While a statement/affidavit is only valid and admissible if the person that made it has competent firsthand knowledge of all the facts alleged in it and can both swear and testify to the validity of those facts under penalty of perjury, a criminal complaint does not require any such criteria. In fact, a criminal complaint such as is filed in most traffic cases is almost always an instrument of hearsay rather than an actual firsthand accounting of facts.
There is a very important legal difference that exists between a legally sworn criminal statement/affidavit made under penalty of perjury and an unsworn criminal complaint that is not made under penalty of perjury and is more often than not totally hearsay in its nature and content. That is why I argue that a criminal complaint and a criminal statement/affidavit are absolutely not the same instrument, and only the properly sworn criminal statement/affidavit would be constitutionally and legally valid as a proper prosecutorial instrument after the quashing of an indictment or information has occurred.
Citations and Complaints Consist Entirely of Speculation and Hearsay, Not Irrefutable Fact.
In Texas you see, and probably everywhere else in the entire world, anyone can make a criminal complaint about anything that they actually believe may be a crime, whether they actually have firsthand knowledge of the crime alleged or merely believe that a crime they have only heard about from someone else has actually occurred. But, in neither case involving Class C misdemeanors is the actual criminal complaint signed under penalty of perjury, nor is it based upon a sworn criminal statement/affidavit that is. It is simply not required that the person making the criminal complaint actually have firsthand knowledge of the facts of the crime they only believe to have been committed and are reporting. Thus, potentially making the criminal complaint an accusatory instrument comprised entirely of hearsay and not actual facts, which is precisely what occurs far more often than not.
And even if the person who writes up and signs a criminal complaint actually does have firsthand knowledge of everything in it, it still contains no proper jurat requiring that the instrument be sworn to and signed “under penalty of perjury” attesting that all the facts stated in the complaint are personally known to the Affiant and are true and correct. Which means that everything written in the criminal complaint could be completely fabricated and false, but no one could legally do a thing to the individual(s) that knowingly and willfully bore false witness by making and signing a document that they knew contained nothing but a total lie.
Furthermore, to add total insult to actual injury, you cannot sue the person who made and signed the criminal complaint even when they knew that they were making a false allegation against you, as the filing of the complaint is an act protected by law. This holds true even though you could and would suffer an actual tangible harm from the false criminal complaint in the form of defamation of character, slander, and liable because that document will now exist as a matter of permanent public record that anyone can request and get a copy of.
To make these matters even worse, even when such a criminal complaint does turn out to be false, the person who signed it will most likely never be charged with falsifying a governmental record and making a false statement like they would have been if they had done the same thing in a proper criminal statement/affidavit that is required to be sworn “under penalty of perjury.” But the law says that they cannot be so charged. Which makes a verified criminal complaint the exact constitutional and legal opposite of a sworn criminal statement/affidavit which must be made under penalty of perjury and based upon the firsthand knowledge of the Affiant.
This is why I make the argument that a signed (and merely verified) criminal complaint alone, without an indictment or information that is also based upon a properly sworn criminal statement/affidavit made “under penalty of perjury,” is completely insufficient to invest any kind of court whatsoever with any form of jurisdiction, as any such criminal complaint is nothing more than an unsubstantiated accusatory instrument that may be used solely for the purpose of initiating an evidentiary investigation into a matter, but not actually prosecuting it.
Who Actually Filed the Complaint?
Furthermore, there is the question of the actual source of the criminal complaint that is filed with the court as to whether it came from either the officer, prosecutor, or the clerk of the court. A criminal statement/affidavit that is signed under penalty of perjury is almost always one that was written by the person that will sign it as swearing to the facts alleged in it, while the criminal complaint filed by the officer, prosecutor, or clerk of the court, is never written by the officer that signs it as the Affiant. Most likely due to the fact that the officer does not know if a crime was actually committed or not, as s/he has no real clue as to what the necessary elements of the alleged offense(s) even are, much less if they all even existed at the time of the alleged offense. So someone else usually writes it up and just has the officer sign it while they simply verify that the officer is the one who signed it.
But, when the criminal complaint is both written and signed by the clerks of the very same court that is adjudicating the case, it raises yet another series of due process issues relating to the agency of the clerk to the court, the fundamental lack of impartiality by the court, and the physical custody of the official records in relation to the case file and evidence. The potential due process dangers of this situation are egregious and unacceptable, and should be blatantly obvious, even to the morons that populate and control our so-called justice system.
Hey!! That’s A Conflict of Interest and Highly Inappropriate!!
Let’s begin with the fact that the clerks of the court, the same clerks that just acted in unison to sign and verify the criminal complaint that is being used against the Accused, actually do so as direct agents of the judge, just as they do in all other things involving and relating to that court. And that same judge is now presiding over a case in which s/he is, legally speaking, now also the actual accuser since the judge’s direct agent(s), the clerk(s), is/are the Affiant(s) and the Verifier(s) on the criminal complaint, but not a single one of them has any actual personal knowledge of the facts alleged therein.
Then, in addition to those issues, the same combination of clerk(s) and judge who are now legally acting as a singular entity serving as the accuser in the matter via this agency, are also acting as both the trial judge and the official custodian of the trial record, which includes all the admitted evidence from both sides. Do you understand yet? They are doing all of this in the same legal matter that is now being adjudicated before that very same court where they also control the entire court record, including what information is to be found in it. There could be no bigger corrupt influence and conflict of interest or denial of due process outside of an actual extra-judicial lynching or firing squad.
Probable Cause: Who Found It, When, Where and How Did They Find It, and Why Was it Hiding to Begin With?
Another way the Texas courts screw the Accused in their right of due process is to refuse to provide him/her with an “examining trial” under the provisions of Art. 16.01, Code of Criminal Procedure. It is well established law that, in any case where a warrantless arrest is perpetrated, the initial presumption under the law is that the arrest is unlawful absent a valid warrant until a favorable determination of both reasonableness and probable cause have been made by a neutral and detached magistrate. However, the Accused individual is being required to raise the issue of the initial seizure and arrest being unconstitutional and illegal in order to preserve this right, and Texas law provides for only one kind of criminal proceeding for testing the reasonableness and probable cause validity of a warrantless arrest, and that is in an examining trial under Chapter 16 of the Texas Code of Criminal Procedure.
However, through one of the most myopic readings of statutes I have ever seen, the Texas courts began ruling that an examining trial is available only to those charged with a felony offense. You need to understand what this idiotic proclamation actually means across the board in relation to the right of due process. What these courts are really saying is that anyone accused of any alleged misdemeanor criminal offense is not to be provided with the right to any probable cause determination via the process of an examining trial, or any other process at all. They are saying that probable cause is to simply be presumed, and the accused individual is being made to unknowingly and unwittingly sign documents presuming that probable cause was found by their own admission to the offense, thus they are waiving the right to an examining trial. While this is not actually stated in plain words upon the face of any documents being signed by the Accused, the effect remains exactly the same as if it were.
The rulings of the Texas courts on this subject violates an already standing, and as yet not overturned, Texas Court of Criminal Appeals opinion on the examining trial being just as applicable to misdemeanor cases as it is to felonies, just as the right of due process would seem to make perfectly clear to anyone actually interested and concerned with fair and impartial proceedings for those accused of any criminal act. In the case of Ex parte Garcia, 547 S.W.2d 271, 273,274 (Crim. App. 1977), the court stated:
“ The record reflects that Garcia was arrested and charged by complaint and information with the offense of reckless conduct, V.T.C.A., Penal Code Sec. 22.05, a Class B misdemeanor.
The evidence introduced by the State consisted solely of the complaint and information filed against Garcia and the capias that was issued thereon. Art. 23.04, V.A.C. C.P. Garcia produced no evidence.
Appellant relies on Ex parte Wright, 138 Tex.Cr.R. 350, 136 S.W.2d 212. In that case the accused petitioner challenged the existence of probable cause for his confinement. The State showed a complaint and warrant of arrest, but nothing more. With reliance on Art. 155, C.C.P. (1925), now Art. 11.43, V.A.C.C.P., which provides that in the hearing of a habeas corpus writ, “No presumption of guilt arises from the mere fact that a criminal accusation has been made before a competent authority”, the Court in Wright found the complaint and arrest warrant insufficient to show probable cause for confinement and ordered the petitioner discharged.
… … … …
 Chapters 14 through 17 of the Code of Criminal Procedure govern arrest, commitment and bail; i. e., the decision-making process pursuant to which the State takes a citizen into custody and determines what restraints should or should not be placed on him after arrest. The State performs these functions through two agents: the peace officer and the magistrate. The peace officer has some discretion, but the primary and ultimate decision to restrict the citizen’s liberty must be made by a neutral and detached magistrate. This fact is fundamental to our system of criminal justice. Whether the arrest is made with or without warrant, one of the arresting officer’s first duties after arrest is to have the arrested person taken before a magistrate (Arts. 14.06, 15.16, 15.17, V.A.C.C.P.), and the magistrate must then inform the accused of his right to an examining trial (Art. 15.17, supra).
… … … …
Chapter 16 governs the examining trial, which is a proceeding “to examine into the truth of the accusation made” (Art. 16.01, V.A.C.C.P.). It is clear from the provisions of this chapter, from those of the preceding chapter, and from the very language stating the purpose of the examining trial, that the truth of the accusation may not be based upon the accusation alone: such a conclusion, if valid, would render the examining trial a useless thing, a mere re-enactment of the earlier determination of whether the arrest warrant should issue. In contrast to this principle being an implied underpinning of the examining trial process, when probable cause for continued detention is challenged by habeas corpus, the same principle is stated expressly in Art. 11.43, supra, to-wit: “No presumption of guilt arises from the mere fact that a criminal accusation has been made before a competent  authority.” In habeas corpus, as at an examining trial, to allow the continued *275 commitment to rest solely upon the original accusation is to render the hearing a useless thing. The purpose of such a hearing would then be equally satisfied by merely attaching the affidavit to the respondent’s return, and dispensing with the hearing altogether. The issue would be reduced to one of whether a lawful arrest warrant had issued, rather than whether probable cause for his continued detention existed independently of the accusation (Art. 11.43, supra).“
Now, while the specific issues of Ex parte Garcia relate to habeas corpus and the purpose of an examining trial in order for the state to lawfully and legitimately continue to hold someone in pretrial custody, it also goes to the point that even those charged with a Class B misdemeanor have the right to an examining trial, and that probable cause cannot be found upon the face of a complaint or information alone, which is itself a very big deal since it is precisely the process that is being used in the Texas courts to deny the Accused of an examining trial in misdemeanor cases. This is an issue of unequal protection of the laws and blatant due process violations of the most fundamental and essential nature of our system of jurisprudence.
In short, in any criminal allegation, especially in warrantless misdemeanor arrests, including those involving Class C or other misdemeanor offenses, the protection of due process rights means the court is required to perform an examining trial for the purpose of reaching two separate and distinct probable cause determinations:
- whether or not the warrantless arrest was lawful; and
- whether or not enough facts and evidence actually exist to establish the necessary probable cause that would lead a reasonable person of average intelligence to actually believe the Accused is most likely guilty of having committed the crime alleged.
Warrantless Arrests Require That Not One, But TWO Probable Cause Determinations Be Made.
Our Texas courts consistently violate the due process rights of those accused of having committed virtually any class of misdemeanor offense by denying them in their right to have both of these probable cause determinations made by a neutral and detached magistrate. The existence of reasonableness and probable cause are simply and unlawfully presumed as a matter of governmental expediency and conservation of expense in total disregard for the rights of the Accused to have such determinations made based solely upon admissible facts and evidence, rather than merely rubber-stamping the personal presumptions and opinions of the arresting officer and prosecutor based upon the allegation(s) in the complaint(s) and Information(s) alone. This is precisely why the procedure set forth in Art. 15.17 of the Texas Code of Criminal Procedure is not the same thing as the actual examining trial, and why Art. 15.17(a) alludes to the fact that the arraignment and examining trial can (and most likely should) be held at a later date.
We now come to yet another “screw you” by our courts, which is their consistent failure to inform the Accused of their rights as required by Arts. 15.17, 38.22, and 38.23, Code of Criminal Procedure, and to afford them assistance of counsel as is constitutionally and statutorily protected and required in all criminal prosecutions by Art. 1, Sec. 10, Texas Constitution, and Art. 1.05, Code of Criminal Procedure.
Let it also be known that I have personally witnessed a district judge state in open court that “Texas does not recognize bifurcated representation.” Now, what this judge was really saying is, “The Texas courts have created their own ‘law’ that forbids you to speak for yourself if you happen to have hired a bar card carrying attorney to act as your legal counsel and mouthpiece.”
However, the problem with this statement, or rather, this obvious lie, is that it is a knowing and willful violation of the protected rights of the Accused under both Art. 1, Sec. 10, Texas Constitution, and Art. 1.05, Code of Criminal Procedure. In practice, this criminally inept judge’s statement in open court demonstrates a complete violation of both articles, where it is clearly stated verbatim in each that the Accused individual “… shall have the right of being heard by himself or counsel, or both… .” So, just what the hell does this district judge and those sitting in the higher Texas courts think the term “both” actually means in these clauses of the Bill of Rights and Code of Criminal Procedure? And by what authority does he or any other judge sitting in any other court act to declare those provisions void and of no effect? The courts are unconstitutionally and illegally altering the Texas Constitution, including the Bill of Rights, to suit governmental desires and expediency, not to provide justice for the people.
In other words, the district and higher level courts have declared sua sponte (in law, sua sponte (Latin: “of his, her, its or their own accord”)) that their rulings and the rules of the state bar association are to be construed as being totally superior to the Texas Constitution’s Bill of Rights and separation of powers clause, as well as the laws created by the legislature (a legislature that is also unconstitutionally and illegally populated and controlled by attorneys).
Can you not yet understand that these acts in violation of law and individual rights, and this judge’s statement, signifies a clear-cut case of sedition and treason by our judges, our courts, and our legislature, under both the Texas and United States Constitutions? Anyone?
No Notice, No Due Process, No Entering of a Plea.
So, it shouldn’t surprise you that the moment will eventually arrive where the court is going to unlawfully act yet again in concert and collusion with and on the behalf of the prosecution to unlawfully coerce or deny you in each of these aforementioned due process rights that rightfully belong to you. And that moment will come when the municipal judge or justice of the peace utters the words “how do you plead?”
And this is where a cunningly designed and placed due process “gotcha’” is lurking, hidden from obvious observation like a pool of quicksand in the open desert, but there nonetheless. And it begins and ends with an unlawful and unjust collusion between the prosecutor and the court to knowingly and willfully rearrange the sequencing of the criminal procedures in such a way that you are unlawfully coerced or tricked into automatically waiving and losing several very important due process rights.
The court will usually attempt to get a plea from you during the course of your initial appearance proceeding. And if you come in earlier than the date and time specified on the citation, then it is more than likely that a clerk of the court will try to get you to enter a plea with them. They might even threaten you by stating that that failure to enter a plea while you are appearing now could very well result in a warrant being issued for your arrest that will falsely allege that you failed to appear as ‘required’ by the citation or some other legal instrument.
It is imperative to the protection of your right of due process and proper procedure, however, that you decline to do so in either instance. Note that I said “decline,” not “refuse.” You must never use the term “refuse” in relation to entering a plea, as your refusal is the specific legal mechanism that, by law, authorizes the judge to enter a plea on your behalf. So don’t engage the mechanism by doing so. See Arts. 26.12 and 45.024, Code of Criminal Procedure. I will later get into a much more detailed explanation as to why this creates a serious and unrecoverable problem with your due process rights.
Remember that neither the prosecutor nor the clerk is or can be authorized to request or accept a plea in a case, and doing so is a criminal act by them, as they are impersonating a judicial officer having the proper delegated power and authority to sit as a judge over an official ‘open court’ proceeding, and they do not. It is also an unconstitutional and illegal delegation of authority by the judge to allow either of them to do so.
It is also highly unlikely at this point that you’ve been served with a copy of any actual verified complaint, which is something you have a right to have a copy of before you make an appearance in court for any proceeding relating to the case. It is even more likely that no complaint has even been filed in the court record at all. This creates a jurisdictional problem for the court, as there is nothing in the court record that would serve to invoke the court’s jurisdiction in the matter. But that won’t stop them from trying to proceed as if they actually have jurisdiction.
So, if the judge or anyone else does try to get you to enter a plea, especially when there is no complaint accompanied by an information or indictment, or you haven’t been properly served with copies of the complaint and information for each allegation being made against you, you have to object and state good cause as to why you are incapable of entering a plea at this time. But never ever say that you refuse to enter a plea.
Protect Your Rights, Because No One Else Here is Going To.
The problem with this statutory authorization in relation to Class C misdemeanor cases, is that it allows the court to knowingly and willfully waive several very important due process rights without either your knowledge or consent. Making it very easy for the prosecutor and the court to gain a jurisdictional advantage over you that they otherwise would be unable to achieve without first following proper procedures that would normally act to protect the Accused’s due process rights.
At our current point in time, however, the Code of Criminal Procedure literally serves to directly authorize the prosecutors and courts to commit due process rights violations at their discretion by simply entering a plea on your behalf, regardless of how many other rules or procedures that they may have broken or skipped over so far, and whether you have objected to their actions or not.
You must understand this. This entering of a plea by the justice or judge is an action that results in the immediate nonconsensual waiver of fundamental rights belonging to you, the Accused. Rights to which you are absolutely entitled, and which are simply being spat upon by these courts as if they never existed. What’s worse is the fact that these justices and judges can do so without fear of repercussions, culpability, or accountability, because they are allegedly doing so while acting in their “judicial” capacity, where the judicially concocted, usurped, and totally unconstitutional protection of absolute immunity exists, rather than in their magisterial capacity where no such immunity exists at all. And all of this is done by simply changing the order in which s/he performs certain procedures while simultaneously ‘forgetting’ to properly and timely inform you of your rights.
Before we continue on with the discussion of how to object to this out-of-place rights-violating demand for a plea, consider everything you have learned from the included statutory links up to this point about the proper and required procedures these judges and prosecutors are required by law to follow, and exactly what you may have witnessed with your own eyes so far as to where and how they have failed or refused to do so. Because you are going to need that information to protect yourself from the highly unconstitutional and illegal shenanigans of these public serpents (not a typo).
Furthermore, you must realize that it is your duty to make the record for appeal so as to prevent them from getting away with these violations. This is not the same thing as you having to shoulder the burden of proof so as to try and prove your innocence, so don’t confuse the two. Just understand that the way that you are going to have to do this is by making both spoken and written timely legal objections to everything that is wrong as it is being done. You can file the written objections into the court record asap after the fact to preserve them for the record, but you must get them written and filed or you will lose on any appeal that may be pursued.
I Object! There’s No Meat on my Burger!!
You should consider yourself forewarned that the judge will most likely attempt to prevent you from making the oral record (especially if the proceeding is being recorded), even when you are making a properly formulated and stated objection. Regardless, we really have only two options for doing so:
- make a rather short verbal objection that superficially touches on the legal points of the objection and then later file a more detailed written objection listing all the legal points thereof; or
- be detailed enough in both the oral and written record so as to be fully covered in the record on appeal.
The first option is more dangerous in my opinion in that the appellate court may, whether intentionally or unintentionally, mistake the legal basis and intent of your shorter oral objection, followed by failing or refusing to read your more detailed written one. Personally, I prefer doing the latter, making a more detailed oral objection that very nearly mirrors what will also become my written one for the record, and if the judge attempts to cut me off before I have completed stating it, then I object to that as well and demand that I be heard and allowed to complete my full objection for the record.
There is one more very important point on this issue, and that is that you must make some sort of verbal objection in order to preserve it on the record. Submitting a written objection later that does not verbally appear in at least some form and semblance in a recording or transcript of the court proceeding (if it was officially recorded), means that the written objection will be totally ignored on appeal, as the issue was not preserved by actual verbal objection in the proceeding.
Okay, the fateful moment now arrives and the judge asks “how do you plead?” Your response should automatically play out to be something very similar to the following:
You: “Is the court willing to accept a coerced and unconscionable plea from the Accused?”
Judge: “What do you mean by an ‘unconscionable’ plea?”
You: “The prosecution has failed to provide the Accused with proper notice in the manner and time required by law under the provisions of Art. 1, Sec. 10 and Art. 5, Sec. 12(b) of the Texas Constitution, and Arts. 1.05, 2.04, 2.05, and 45.018(b), and Chapter 21 of the Code of Criminal Procedure, thus depriving the Accused of sufficient opportunity to examine the complaint(s) and charging instrument(s) so as to have proper, sufficient and timely notice of the allegations being made, to prepare a proper challenge or response to same, or to know and understand the consequences of entering any plea. The Accused has never been served with a copy of the criminal complaint(s) and the aforementioned statutorily required charging instruments prior to this proceeding, which is a direct violation of the Accused’s due process rights under those same provisions of law.”
Judge: “Well, since you are refusing to enter a plea yourself, the court will enter a plea of “not guilty” on your behalf.”
You: “Objection! The court is intentionally misstating the statement made by the Accused as it relates to the facts of this matter, presumably to skew the record in favor of the state and to prejudice the rights of the Accused for the purpose of any appeal. At no time has the Accused refused to enter a plea. The court was specifically asked if it was willing to accept a coerced and unconscionable plea from the Accused. That question does not in any way constitute a refusal to plea by the Accused under the provisions of Art. 45.024 of the Code of Criminal Procedure.
Furthermore, the entering of a plea constitutes a waiver of fundamental due process rights that the Accused does not consent to having waived by the court, at this or any other time, especially, the right to proper, sufficient, and timely notice, the right to challenge in personam jurisdiction, the right to challenge the form and substance of the criminal complaint(s) and charging instrument(s), and the right to an examining trial to make a proper determination as to the reasonableness and probable cause allegedly authorizing the illegal warrantless arrest and criminal charging of the accused by Officer Shitforbrains. Nor does the Accused intend to allow the court to simply waive or gloss over the knowing and willful violations of law and procedure by the prosecution that are prejudicial to the rights of the Accused.”
Judge: “You are being charged with a misdemeanor. Texas law says that you only have a right to an examining trial if you are charged with a felony.”
You: “Objection! That too is a gross mischaracterization and misstatement of the law. The Code of Criminal Procedure does not state any such thing regarding an examining trial. That is a policy created by the misrepresentations of prosecutors and the courts, not the law. The controlling Texas case on the issue of an examining trial being a mandatory requirement of due process is Ex parte Garcia, 547 S.W.2d 271, 273, 274, 275 (Crim. App. 1977), which clearly states that even a misdemeanor case requires a probable cause determination and signed order, which can only be obtained from the examining trial process.
The very nature of a warrantless arrest, search, or seizure requires it to be considered unlawful from the very beginning, as the police officer is the only person making both the accusation and the probable cause determination as to whether or not any law was actually being broken, who is allegedly guilty, as well as whether or not his warrantless arrest, search, or seizure was lawful. The court knows full-well that a police officer has no lawful authority whatsoever to make a determination of probable cause for the purpose of adjudication or incarceration. Only a neutral and detached magistrate may make a determination of probable cause relating to a warrantless arrest, search, or seizure pursuant Gerstein v. Pugh, 420 U.S. 103, 114 (1975). The court and the prosecution are both very aware of the fact that no such order attesting to any such examination and determination exists in the court record, despite the Accused never waiving the right to an examining trial. The Accused has a due process right to have those determinations properly and lawfully made prior to any prosecution in a criminal matter, regardless of the Class of offense being alleged.”
Judge: “Well, your objections are overruled and the court is still entering a plea of ‘not guilty” on your behalf.”
You: “Objection! It is now clear that you are perfectly willing to ignore the law and the rulings of the higher courts of this state to further your prejudiced actions against the rights of the Accused and that you cannot and will not act fair and impartially in this matter. On and for the record, in open court, you are willfully refusing to comply with higher court precedent, the laws of this state, the rules of procedure, or to act in the best interest of the Accused’s protected due process rights. On those grounds, I hereby move for your immediate disqualification from this matter.
For the purpose of your disqualification and removal I will be preparing and filing a written and properly sworn Motion to Disqualify and the necessary supporting DOJ, judicial conduct, and professional ethics complaints relating to your actions in these proceedings.”
From this point forward the only thing you say in response to any questions, statements or rulings by this same judge should be:
“Objection! I have made a proper demand for your disqualification under the provisions of Sec. 29.052, Government Code, wherein you are directed by law to cease and desist in all proceedings until the motion to disqualify has been heard and ruled upon.”
I can almost the hemming and hawing from those that are already familiar with the contents and subject of Subchapter 29 A-1 of the Government Code about how those statutes don’t apply to justices of the peace. But, before you get all hot and bothered by my suggestion of disqualifying a justice of the peace under statutory provisions obviously written for a municipal judge, let me lay out a little logic for you on the matter as to why I would even make such a suggestion.
While it is true that the provisions of Sec. 29.052, Government Code, are written as being specifically directed at municipal judges and not justices of the peace, the fact is that there is no other provision or procedure identified in law or statute that describes a similarly specific procedure for disqualifying a justice of the peace who illegally acts in exactly the same manner as the municipal judge is doing. There simply is no other specifically described procedure for the disqualification of a judge (or justice of the peace) than that found in Subchapter 29 A-1 of the Government Code.
Furthermore, considering that both courts allegedly have the same type and level of criminal jurisdiction, logic dictates that it must be possible to disqualify a justice of the peace on any of the same legal grounds that can be used to justify the disqualification of a municipal judge. And since there is only the one defined procedure for doing so, logic says that we should be able to apply that same procedure to both in the absence of any other direction on the process. Let the higher courts tell us later if we are wrong or if there is a different disqualification procedure for justices of the peace than there is for municipal judges. But they would also have to show us where statute says that’s the case, and I doubt that they can actually do so.
There is one final but important distinction as how you go about making the record depending upon whether your trial court actually is or is not a court of record. All the phrase “court of record” means is that the court you are in is one that is required to provide the parties with an official verbatim record and transcription of any proceedings that occur in that court, provided at least one of the parties requests that it do so. While a court of no record will have neither the capability nor the statutory requirement to provide such a record, in which case your appeal will be conducted as a “trial de novo” (meaning “from the beginning”) in the court legislatively designated to handle such cases after the initial trial, which is usually the county court or the county court-at-law (which is a statutorily created and empowered court).
In a court of no record, the only record that goes forward to the de novo court will be whatever pleadings and other documents that were filed in the trial court record prior to the forwarding of that record for the purpose of the de novo trial. Remember, a de novo proceeding is not an appeal, although it should be, considering that the de novo court’s jurisdiction was invoked only because of the violations of rights that occurred in the lower court. The unlawful and illegal deprivations of rights perpetrated daily by the lower Texas courts of no record will virtually never be exposed and the judges held accountable, because the judicial system treats the entire de novo process and proceedings as a total “do over” or “mulligan” of the original trial as if the de novo proceeding is actually the original trial.
No review of the lower court’s unlawful and illegal actions will ever take place in such proceedings, and will be totally ignored by the real appellate courts as if they never happened at all, as they will defer instead to the proceedings of the de novo court as the only ones that actually matter. An act that means that the higher courts must completely ignore the fact that the de novo court’s jurisdiction could have never been invoked at all if the due process violations by the original justice or municipal court had been addressed as they should have been and the matter dismissed in the interest of justice.
You don’t have to believe me right now when I tell you that this will more or less be the actual process you will see unfold, but, just go through this process even once, and you will not be long in coming back and apologizing to me for your having ever doubted me.
Welcome to judicial corruption, sedition, and treason… Texas judiciary style.
 To understand why you are being falsely accused, you must first understand what the term “transportation” actually means in relation to a regulatory code and its statutes, and why the defined subject matter activity of “transportation” does not actually apply to you and most other American’s traveling upon the highways.
 Nowhere in any Texas law, code or statute does the Texas Legislature define the singular term “transportation.” But, that doesn’t mean that no definition exists in law. In the case of Interstate Commerce Com’n v. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 1047, the United States Supreme Court stated that the term “transportation” means “The movement of goods or persons from one place to another, by a carrier.”
The same analysis holds true for the singular term “carrier” in that it too is not defined by the Texas legislature in any law, code or statute whatsoever. So we must once again turn to the controlling definition as found in other law, and that definition is “… any person engaged in the transportation of passengers or property by land, as a common, contract, or private carrier, or freight forwarder as those terms are used in the Interstate Commerce Act, as amended, and officers, agents and employees of such carriers.”
The Interstate Commerce Act, in 18 U.S.C.A. § 831, defines “carrier” as an “Individual or organization engaged in transporting passengers or goods for hire.”
Both definitions can be found in Black’s Law Dictionary 6th Edition.
 See my previous articles titled “No Articulable Probable Cause,” “Understanding the Fruit of the Poison Tree Doctrine,” and “Challenging the Complaint in a “Transportation” Related Offense.”
 Chapter 543, Texas “Transportation” Code.
 IMPORTANT** – This Word document contains a statutory breakdown of Art. 15.17 of the Code of Criminal Procedure. Study it carefully so you can identify everything that isn’t done and that potentially deprived you of a due process right under both Texas and federal law.
 United States v. Mendenhall, 446 U. S. 544 (1980)
 California v. Hodari D., 499 U.S. 621 (1991)
 Texas Government Code Sec. 311.016(4).
 IMPORTANT** – This Word document contains a statutory breakdown and cross-reference of Art. 15.17 of the Code of Criminal Procedure. Study it carefully so you can identify everything that isn’t done and that potentially deprived you of a due process right under both Texas and federal law.