STATEMENT OF PROBABLE CAUSE IN SUPPORT OF ALLEGATIONS AGAIST JOHNSON COUNTY PUB LIC OFFICIALS By Randall D. Kelton 1890 S. Main Cleburne, TX 76033 940-399-9922 On May 8, 2001 I went to the Johnson County Jail and requested to view the hearing about to be held there by Judge Judy Davis, and was denied access, the hearing was subsequently held deep in the jail in secret over my strenuous objections. On May 18, 2006, I filed, with the district attorney of Johnson County, a sworn, affirmed, and verified criminal affidavit, complete in accordance with Article 15.05 Texas Code of Criminal Procedure making it known to the district attorney that Judge Judy Davis committed the act of Official Oppression against me by the act alleged above. To my knowledge, to the date of this document, no present has been made to the grand jury in accordance with the specific duty stipulated by Article 2.03 Texas Code of Criminal Procedure. Consequent to that failure, I do, by this document and the included sworn, affirmed, and verified criminal affidavit, complete in accordance with Article 15.05 Texas Code of Criminal Procedure, charge the district attorney with the criminal act of Official Misconduct in violation of Section 39.02 Texas Code of Criminal Procedure, Tampering With a Government Document as defined by Section 37.10 Texas Penal Code, and Shielding from Prosecution as defined by Section 38.05 Texas Penal Code. Before you simply consider me a cook and trash this complaint, let me explain that I have no axe to grind against the Dale Hana. His office has been most cooperative, cordial, and professional in our dealings. It is partly because of the professionalism of his office that I am pursuing the current purpose. It is not my purpose to do any harm to Mr. Hana. There is something very wrong with the legal system in Texas not of Mr. Hana's making. As I will demonstrate by the following, Mr. Hana has inherited a broken system. His only fault is that he did not take action to fix it, but rather just kept doing things the way the had always been done. My reason for filing the particular compliant included in this document is for the specific purpose of brining to light a particular statute that has been given short shrift by prosecutors. By their chronic failure to follow the mandate of this law, they have created a situation whereby public officials feel at liberty to ignore the laws specifically enacted to limit and control their professional behaviors. This has led to horrendous abuse of the public and the legal system in Texas and I will be asking you to help me bring this to the courts so the issues can be aired and a proper determination of the intent of the laws in question clearly defined by the courts. In order to give substance to this cause and the need to indict the district attorney, some explanation is in order. The hearing in question was one of those held each morning in order that the Magistrate may have opportunity to examine into allegations made against persons arrested within the last 24 hours. I am reluctant to attempt a name for the hearing as different jurisdictions have varying names. Some call it a magistration, others a preliminary initial appearance (PIA) and still others an arraignment. Whatever the hearing is called by the specific jurisdiction, I am referring to the hearing held when a person is brought before a magistrate subject to an arrest, with our without a warrant. I realize the following may seem a bit dry and longwinded. I assure you, however, it is important that I frame the context of this particular hearing as it bares on the motivation of the prosecutor in the acts I allege. A warrant is clearly an order to a police officer to arrest the person named, but an officer can also arrest without a warrant. A police officer is given the power to arrest anyone for a violation of law, without first securing a warrant, when the infraction occurs with the sight or hearing of the officer. Art. 14.01. [212] [259] [247] OFFENSE WITHIN VIEW. A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace. A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view. The officer is allowed to arrest but has no authority to continue to hold the person beyond the time it takes to perform the duties incidental to arrest. Continued restriction of a citizen at his/her liberty may only occur after a neutral magistrate has held a hearing where evidence is presented to the court by the arresting officer, against the accused, showing cause as to why the liberty of the accused should be further restricted. At this hearing, as with any hearing where the liberty of a person is at stake and testimony is presented to the court, certain rights of the accused must be observed and protected. When probable cause exists, it is prudent and reasonable that an officer should have the power to immediately arrest, but with that power comes the potential for horrendous abuse and therefore must come with stipulations. While an officer is allowed to take the accused into custody on his/her judgement of the facts, s/he may not hold the person any longer than it reasonable takes, under all the circumstances to get the person before a magistrate. [29] Under this practical compromise, a policeman's on-the-scene assessment of probable cause provides legal justification*[ 420 U.S. Page 114]* for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest. Once the suspect is in custody, however, the reasons that justify dispensing with the magistrate's neutral judgment evaporate. GERSTEIN v. PUGH ET AL., 95 S. Ct. 854, 420 U.S. 103 (U.S. 02/18/1975 Once the arrest is made the officer must act in accordance with Article 14.06 Texas Code of Criminal Procedure, and bring the person before some magistrate. Art. 14.06. [217] [264] [252] Must take offender before magistrate Except as provided by Subsection (b), in each case enumerated in this Code, the person making the arrest or the person having custody of the person arrested shall take the person arrested or have him taken without unnecessary delay, but not later than 48 hours after the person is arrested, before the magistrate who may have ordered the arrest, before some magistrate of the county where the arrest was made without an order, or, if necessary to provide more expeditiously to the person arrested the warnings described by Article 15.17 of this Code, before a magistrate in a county bordering the county in which the arrest was made. The magistrate shall immediately perform the duties described in Article 15.17 of this Code. How long does the officer have to get the person before a magistrate? In fact, there is no acceptable delay except that necessitated by cause. The courts have held that a in the case of a delay of less than 48 hours, the onus to show unnecessary delay is on the accused to demonstrate the delay was unnecessary, however, when the delay exceeds that time limit, the burden shifts. Where an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving an unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. The fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends. A jurisdiction that chooses to offer combined proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest. COUNTY RIVERSIDE AND COIS BYRD v. MCLAUGHLIN, 111 S. Ct. 1661, 500 U.S. 44 (U.S. 05/13/1991) When this ruling was handed down, John Smith, then head attorney for the Department of Public Safety issued a memo telling DPS officers they could hold a person for 48 hours before seeking a magistrate. That is not what the court said or intended, but attorneys being what they are, that is what was made policy by the single policing agency having statewide jurisdiction and was subsequently adopted by most lesser jurisdictions. Consequently, people are not taken before a magistrate as soon as reasonably possible, but rather, when it is convenient, usually the next morning. Once the person is brought before a magistrate, then what? Well first, the arresting officer must present a complaint to the magistrate. In the example here I will deal primarily with cases where the accused is arrested without a warrant, however, in the even of an arrest subsequent to a warrant, the magistrate must also examine into the sufficiency of the warrant. When a person arrested without a warrant is brought before a commissioner or other officer, a complaint shall be filed forthwith." MALLORY v. UNITED STATES, 77 S. Ct. 1356, 354 U.S. 449 (U.S. 06/24/1957) This complaint must be sworn to by some credible citizen. The only restriction is that it may not be sworn to by the prosecutor who will prosecute the cause. Our founders well aware of the danger of a system where the government could make the allegations it would subsequently prosecute and forbade the state to be both accuser and prosecutor. Therefore, in order to prevent such a situation, our founders and subsequent legislators declared that prosecutions must commence on the filing of a complaint by a "credible person" with "some magistrate." The complaint is the sole source of jurisdiction, without it, any act by the court is void. The filing of a complaint confers jurisdiction upon the court. Bass v. State, 427 S.W.2d 624, 626 (Tex. Cr. App. 1968). When the magistrate is presented with a complaint, what must s/he do? A cursory reading of Article 14.07 and 15.17 would tend to give the impression that all the magistrate needs do is read the person their rights, set bail and leave. This represents a deliberate misrepresentation fostered by prosecutors in advice to magistrates. The plaintiff having been legally arrested, upon the charge of felony (namely, theft from a person), and turned over to the sheriff, W. T. Morgan, it was the duty of the sheriff to immediately take him before the nearest magistrate in order that the offense might be inquired into and an order made committing him to jail, allowing him bond or releasing him. Code of Criminal Procedure, arts. 252, 268, 280, 281, 329 to 334; Newby v. Gunn, 12 S.W. 67; Karner v. Stump, 34 S.W. 656; West v. Cabell, 38 U. S. L. ed., 643; Missouri, K. & T. Ry. Co. v. Warner, 49 S.W. 254; Newburn v. Durham, 32 S.W. 112; Clark v. Winn, 46 S.W. 915; Maddox v. Hudgeons, 72 S.W. 414; Legear v. Warner, 51 L. R. A., 193; Harness v. Steel, 64 N. E., 876. Petty v. Morgan, 53 Tex. Civ. App. 584 (Tex. App., 1909) When a police officer arrests a person, that officer will read the person their rights. The officer does not bring the arrestee before the magistrate so the magistrate can do what s/he has already done. The arresting officer brings the arrestee before some magistrate in order to acquire an order from the magistrate authorizing the continued detention of the accused. These warnings became necessary to prevent police and prosecutors from taking unfair advantage of those accused of crime. The magistrate is specifically directed to issue just such an order by Article 16.17 Texas Code of Criminal Procedure. Art. 16.17. [261] [308] [296] Decision of judge After the examining trial has been had, the judge shall make an order committing the defendant to the jail of the proper county, discharging him or admitting him to bail, as the law and facts of the case may require. Failure of the judge to make or enter an order within 48 hours after the examining trial has been completed operates as a finding of no probable cause and the accused shall be discharged. You will notice this statute is in Chapter 16 Texas Code of Criminal Procedure titled, THE COMMITMENT OR DISCHARGE OF THE ACCUSED. This entire chapter has been devoted to specifying the proper procedure to be followed when making a determination of probable cause. The process by which this is done is called an examining court and it is invoked whenever a person has been arrested. Art. 2.11. [35] [62] [63] Examining court When the magistrate sits for the purpose of inquiring into a criminal accusation against any person, this is called an examining court. Prosecutors will tell you that you only have a right to an examining court in the case of a felony. This is similar to what Roger Jones did in the example above. If you have been charged and not arrested or restricted at your liberty, then you do not, necessarily, have a right to an examination hearing except in the case of a felony. However, if you have been arrested or otherwise restricted at your liberty, an examining court always attaches. This requirement had been confused and hidden by prosecutors as, a cursory reading of Article 14.06 Code of Criminal Procedure supra, and Article 15.17 Code of Criminal Procedure can give the impression, all the magistrate needs do is what Article 15.17 Texas Code of Criminal Procedure stipulates. Jones has offered local magistrates no contrary legal instruction. Art. 15.17. Duties of arresting officer and magistrate In each case enumerated in this Code, the person making the arrest or the person having custody of the person arrested shall without unnecessary delay, but not later than 48 hours after the person is arrested, take the person arrested or have him taken before some magistrate of the county where the accused was arrested or, if necessary to provide more expeditiously to the person arrested the warnings described by this article, before a magistrate in a county bordering the county in which the arrest was made. The arrested person may be taken before the magistrate in person or the image of the arrested person may be broadcast by closed circuit television to the magistrate. The magistrate shall inform in clear language the person arrested, either in person or by closed circuit television, of the accusation against him and of any affidavit filed therewith, of his right to retain counsel, of his right to remain silent, of his right to have an attorney present during any interview with peace officers or attorneys representing the state, of his right to terminate the interview at any time, and of his right to have an examining trial. The magistrate shall also inform the person arrested of the person's right to request the appointment of counsel if the person cannot afford counsel. The magistrate shall inform the person arrested of the procedures for requesting appointment of counsel. If the person does not speak and understand the English language or is deaf, the magistrate shall inform the person in a manner consistent with Articles 38.30 and 38.31, as appropriate. The magistrate shall ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided to the person at the same time. If the person arrested is indigent and requests appointment of counsel and if the magistrate is authorized under Article 26.04 to appoint counsel for indigent defendants in the county, the magistrate shall appoint counsel in accordance with Article 1.051. If the magistrate is not authorized to appoint counsel, the magistrate shall without unnecessary delay, but not later than 24 hours after the person arrested requests appointment of counsel, transmit, or cause to be transmitted to the court or to the courts' designee authorized under Article 26.04 to appoint counsel in the county, the forms requesting the appointment of counsel. The magistrate shall also inform the person arrested that he is not required to make a statement and that any statement made by him may be used against him. The magistrate shall allow the person arrested reasonable time and opportunity to consult counsel and shall, after determining whether the person is currently on bail for a separate criminal offense, admit the person arrested to bail if allowed by law. A closed circuit television system may not be used under this subsection unless the system provides for a two-way communication of image and sound between the arrested person and the magistrate. A recording of the communication between the arrested person and the magistrate shall be made. The recording shall be preserved until the earlier of the following dates: (1) the date on which the pretrial hearing ends; or (2) the 91st day after the date on which the recording is made if the person is charged with a misdemeanor or the 120th day after the date on which the recording is made if the person is charged with a felony. The counsel for the defendant may obtain a copy of the recording on payment of a reasonable amount to cover costs of reproduction. Notice how long the above paragraph is. You might consider such a paragraph a little difficult to decipher. You might also consider such a paragraph ripe for mis-interpretation and prosecutors have certainly taken advantage of that as will be shown. Please look at the sentence fragment highlighted. In fact, when a person is restricted at his liberty by a police officer, a right to a judicial determination of probable cause always attaches. When you read this long paragraph, you may miss the importance of that tiny sentence fragment. You see, the magistrate, in order to determine what the law allows must make a determination of probable cause first. If probable cause attaches, the magistrate must then prepare an order binding the accused to the authority of the state. At the risk of belaboring a point, when a person has actually been taken into custody by arrest, an examining trial always attaches. That was the primary reason magistrates were created to start with. It was intended that no police officer hold the key to the jailhouse door, that no person be bound at his/her liberty except by the decision of a neutral judicial officer after a proper examination into the sufficiency of the allegation made. Therefore, the magistrate must, after issuing the warnings contained in Article 15.17, examine into the sufficiency of the allegation, or warrant (if the person was arrested subsequent to an existing warrant), and decide if sufficient cause exists to bind the accused to the court or rather s/he should be released at liberty. In light of Miranda, Article 15.17 was an addition to the duties of the magistrate, not a replacement for the entire Chapter 16 Texas Code of Criminal Procedure. Absent a proper determination of probable cause and the issuance of an order in accordance with Article 16.17, the police have no authority to continue to hold the accused. and the court has no jurisdiction. Any further detention of the accused will constitute the crime of Kidnapping, as defined by Section 20.03 Texas Penal Code:  20.03. KIDNAPPING. A person commits an offense if he intentionally or knowingly abducts another person. It is an affirmative defense to prosecution under this section that: the abduction was not coupled with intent to use or to threaten to use deadly force; the actor was a relative of the person abducted; and the actor's sole intent was to assume lawful control of the victim. An offense under this section is a felony of the third degree. I know we hear al lot about "false imprisonment' but, there is no statute called "False Imprisonment." Such is an act of kidnapping. The law is most clear. The officer is specifically directed to take the arrestee directly to the nearest magistrate so that the magistrate can make a proper examination into the sufficiency of the allegation. "The purpose of this impressively pervasive requirement of criminal procedure is plain. . . . The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. Legislation such as this, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard -- not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the 'third degree' which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime." MALLORY v. UNITED STATES, 77 S. Ct. 1356, 354 U.S. 449 (U.S. 06/24/1957) The need to clearly define the hearing I am addressing will become clear as this hearing is held at the jail and was the hearing I came to witness. Judge Davis, through Sheriff Lt. Powell, informed me it was her court and I would not be allowed in it and therefore would not be allowed to witness the hearing. I was informed by Lt. Powell that the hearing was being held in a secure area in the jail and I would be a security risk and would not be allowed in. So, I insisted Lt. Powell to ask the judge to hold the hearing in the Justice of Peace courtroom, which was in the jail in a non-secure area, but he refused. The Texas Constitution -- Article 1 - BILL OF RIGHTS Section 10 - RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger. (Amended Nov. 5, 1918.) The courts have long and consistently held that all shall be public except those involving juveniles and certain other rare exceptions. As it was clear I was being denied in a most basic Constitutional right, I asked Lt. Powell to go back in the jail and arrest the judge on a charge of Official Oppression as defined by Section 39.03 Texas Penal Code .  39.03. OFFICIAL OPPRESSION. (a)A public servant acting under color of his office or employment commits an offense if he: intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful; intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or intentionally subjects another to sexual harassment. For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity. In this section, "sexual harassment" means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly. An offense under this section is a Class A misdemeanor. As you might expect, Lt. Powell was reluctant to perform such an onerous duty. Judge Davis, whom he must know and work with regularly would not be pleased with him and he may even be called upon to explain himself to his boss. This would mean, enforcing law when it applied to one of his professional cronies and possibly even a little professional criticism, so, what could we expect? What I expect is, when the law is clearly written and specifically adopted to insure our public officials adhere to its basic principals, our policing officials will take those laws seriously. The law in question, is without question, basic to our form of juris prudence. The right to public courts is so well-entrenched in our justice system questions are begged by this behavior: why would Lt. Powell allow the judge to hold a secret court in the jail; and, why, when I insisted he perform his duty to enforce the laws, would he staunchly refuse even though, said refusal can be construed as an act intended to shield the judge from prosecution in violation of Section 38.05 Texas Penal Code?  38.05. HINDERING APPREHENSION OR PROSECUTION. A person commits an offense if, with intent to hinder the arrest, prosecution, conviction, or punishment of another for an offense or, with intent to hinder the arrest, detention, adjudication, or disposition of a child for engaging in delinquent conduct that violates a penal law of the state, or with intent to hinder the arrest of another under the authority of a warrant or capias, he: harbors or conceals the other; provides or aids in providing the other with any means of avoiding arrest or effecting escape; or warns the other of impending discovery or apprehension. it is a defense to prosecution under Subsection (a)(3) that the warning was given in connection with an effort to bring another into compliance with the law. An offense under this section is a Class A misdemeanor, except that the offense is a felony of the third degree if the person who is harbored, concealed, provided with a means of avoiding arrest or effecting escape, or warned of discovery or apprehension is under arrest for, charged with, or convicted of a felony, or is in custody or detention for, is alleged in a petition to have engaged in, or has been adjudicated as having engaged in delinquent conduct that violates a penal law of the grade of felony, and the person charged under this section knew that the person they harbored, concealed, provided with a means of avoiding arrest or effecting escape, or warned of discovery or apprehension is under arrest for, charged with, or convicted of a felony, or is in custody or detention for, is alleged in a petition to have engaged in, or has been adjudicated as having engaged in delinquent conduct that violates a penal law of the grade of felony. Wasn't he concerned he might be brought before a grand jury to answer for his refusal to perform a duty enjoined upon him and to which he bound himself on his sworn oath? As will be shown, he had reason to have no fear of facing a you. This arrogant disregard for the right of things and the rule of law is better understood in light of the existence of a pervasive notion, the casual acceptance of a largely unstated pre-supposition that, somehow, public officials are held to a different rule of law, that officials charged with enforcing law are somehow immune from the criminal consequences of their behavior. H.G. Wells, in his Outline of History, spoke eloquently to this tendency of the human kind while speaking to the corruption of he Popes during the Dark Ages when he aptly observed: The giver of the law most owes the law allegiance. He of all beings should behave as though the law compels him. But it is the universal failing of mankind that, that which we are given to administer we promptly presume we own. Contrary to what some officials may assert or imply, this is not an issue overlooked by our founders. As a matter of fact, there is a whole section in the Texas Penal Code which addresses just such circumstances. Section 39 of the Texas Penal Code addresses crimes only public officials can commit, or people acting under the color of official authority. Our founders and subsequent legislators were not being facetious when they carefully crafted laws intended to apply to public servants. They considered these laws as absolutely necessary to keep the governmental instruments we have created from becoming the instruments of our oppression. "No man in this country is so high that he is above the law. No officer of the law may set that law at deliance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it." And, "It is the only supreme power in our system of government, and every man who, by accepting office participates it its' functions, is only the more strongly bound to submit to that supremacy and to observe the limitations which it imposes on the exercise of the authority which it gives." US v. Lee, 106 US 196,220 1 S. Ct 240,261 27 L.Ed 171 (1882). While Lt. Powell may have no specific duty to protect me, he does have a specific duty to enforce law as clearly stipulated by Article 2.13 (b) Texas Code of Criminal Procedure. Art. 2.13. [37] [44] [45] Duties and powers (a) It is the duty of every peace officer to preserve the peace within the officer's jurisdiction. To effect this purpose, the officer shall use all lawful means. (b) The officer shall: (1) in every case authorized by the provisions of this Code, interfere without warrant to prevent or suppress crime; (2) execute all lawful process issued to the officer by any magistrate or court; (3) give notice to some magistrate of all offenses committed within the officer's jurisdiction, where the officer has good reason to believe there has been a violation of the penal law; and (4) arrest offenders without warrant in every case where the officer is authorized by law, in order that they may be taken before the proper magistrate or court and be tried. To my knowledge, Lt. Powell has no right or duty to act in concert and collusion with the circumvention of the very laws intended to insure the sanctity of our legal system and that he has sworn himself to the protection of. It is my considered presumption that the Texas Code of Criminal Procedure has been carefully crafted by our founders and subsequent legislators, in order to direct our public servants in their official behaviors so as to protect all the citizens of Texas from abuses by the very governmental instruments they have created. Could I be mistaken in this? Perhaps Article 1 Paragraph 10 of the Texas Constitution was put in there as a lark, just a frivolous flight of our founder's fancy. Or maybe Article 2.13 (supra) didn't mean that a police officer had a duty to arrest offenders when those offenders were friends or professional cronies. On it's face, an ordinary person of reasonable prudence would tend to consider the judge acted in arrogant disregard for the rule of law and denied me, a citizen, in my well-established right to access to a public court. Such an act has the effect of denying me in a Constitutional right (see Article 1 paragraph 10 supra) in violation of Section 39.03 (a) (2), Texas Penal Code (supra). And Lt. Powell, by supporting the judge in the act, is criminally culpable as well. Further, Lt. Powell, by refusing to enforce the law when it was broken in his sight and hearing, committed the act of Official Misconduct and specifically defined by Section 39,02 Texas Penal Code. 39.02. ABUSE OF OFFICIAL CAPACITY. (a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly: violates a law relating to the public servant's office or employment; or misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant's custody or possession by virtue of the public servant's office or employment. An offense under Subsection (a)(1) is a Class A misdemeanor. An offense under Subsection (a)(2) is: a Class C misdemeanor if the value of the use of the thing misused is less than $20; a Class B misdemeanor if the value of the use of the thing misused is $20 or more but less than $500 ; a Class A misdemeanor if the value of the use of the thing misused is $500 or more but less than $1,500; a state jail felony if the value of the use of the thing misused is $1,500 or more but less than $20,000; a felony of the third degree if the value of the use of the thing misused is $20,000 or more but less than $100,000; a felony of the second degree if the value of the use of the thing misused is $100,000 or more but less than $200,000; or a felony of the first degree if the value of the use of the thing misused is $200,000 or more. A discount or award given for travel, such as frequent flyer miles, rental car or hotel discounts, or food coupons, are not things of value belonging to the government for purposes of this section due to the administrative difficulty and cost involved in recapturing the discount or award for a governmental entity.) Lt. Powell further acted to shield the judge from prosecution in violation of Section 38.05 Texas Penal Code (supra). This seems an outrageous breach of the public trust, so why, when I bring it up am I told, "Oh, that's just the way we do things here in Johnson County." If that is the case and the Texas Code of Criminal Procedure does not bind and govern the behavior of policing and judicial officers in Johnson, then what does? Perhaps there is some rule or local custom not currently codified into code granting immunity from the rule of law. I can find a number of statutes, specifically devoted to abuse by public officials. Those laws seem to render public officials criminally liable for their actions. So, where is the Constitutional provision, statute, or court ruling which renders the statutes covering abuse of office by public officials moot and without legal force? Where lies this authority to ignore Constitution and law and by what precedence, practice, or procedure may public officials be held harmless from criminal violations of statutory stipulations? Judge Davis said it was her courtroom. I suggest such is not so. It is my courtroom and your courtroom. Judge Davis is simply one of our servants empowered to carry out our laws in our courtroom. If this were simply the excesses of a petulant judge and recalcitrant police officer things would only be seriously criminal. If these were but isolated improprieties in an otherwise ordered and just system it would be bad enough. But, they are not isolated acts; neither do they lack order and purpose. Considered in separation and isolation from the corpus juris (the body of law) the seemingly insignificant indiscretion of denying a single citizen from witnessing an apparently minor hearing may appear unimportant in the overall scheme of things. However, the corpus juris is not an amalgamation of disparate parts. It is a complete whole. Considering individual aberrations in isolation and separation is like viewing an elephant through a pinhole. When we look at what is going on in the criminal justice system in Johnson County, as a whole, a very ugly picture begins to emerge. When I bring up these improprieties, I often get reminded of how these officials are the front line in the war on crime and their job is tough. Well, I have been to war and can assure you, this is not one. According to FBI statistics, crime has been consistently down across the board for the last 20 years. The only ones who think of public policing as a war are those who wish to use that straw-man distortion to justify self-serving abuse and abridgment of citizen rights in order to ease the burden of the policing agents. You and I are not mere civilians of an occupied country to be treated as the potential enemy. We are the point and the purpose of the police presence. You and I are the sovereigns, masters over these governmental instruments we have created to serve our policing purposes. The police and courts are our governmental instruments. If there is to be freedom, justice, and equity under law, public servants must be bound even more closely to the rule of law than the average citizen. Even in combat, our rules of engagement were clear and inviolate. Even in the most difficult of straights, or under the worst of fire, we could not allow ourselves to succumb to our personal passions or indulge our individual animosities. The more dire and consequential the outcome of ones actions, the greater the need for clear direction and stern prohibitions. The acts alleged above are not innocent incursions upon the due course of the laws. The above alleged are deliberately self-serving criminal violations of specific statutory stipulations. While I allege wrongdoing, it is not my contention these acts are necessarily malicious. Neither do I feel I have been singled out for special persecution. All this would be much easier if there were some outrageous wrongdoer I could single out for special condemnation, demonize beyond all compassion, then rail at in righteous indignation. While the acts alleged reek of arrogance to the point of hubris, bred of a malignant calculus, I have no reason to believe the judge or officer above have acted in anything more than deliberate ignorance. Whether knowingly or not, I allege, Judge Davis did not refuse to allow access to her court out of insolent caprice. Judge Davis held that hearing in secret in order to avoid prying eyes that would reveal dastardly deeds of deceit and deception. Whether she knew it or not, the hearing she was about to hold was a farce, a legal fiction, a conniving concoction of practices and procedures orchestrated to serve the administrative convenience and judicial expediency of those public employees put in place to protect us from just such ignorant disregard for the rule of law. Section 39.03 (a)(2) Texas Penal Code above ends with the line "knowing his conduct is unlawful." This issue was clearly addressed by the courts in Screws v US, on speaking to notice, the courts held that while a citizen could not claim ignorance as a defense under law, a public official, in a position to effect the rights of citizens, are held to a much higher standard. Ellis v. United States, 206 U.S. 246, 257, as follows: "If a man intentionally adopts certain conduct in certain circumstances known to him, and that conduct is forbidden by the law under those circumstances, he intentionally breaks the law in the only sense in which the law ever considers intent." He who defies a decision interpreting the Constitution knows precisely what he is doing. If sane, he hardly may be heard to say that he knew not what he did. Of course, willful conduct cannot make definite that which is undefined. But willful violators of constitutional requirements, which have been defined, certainly are in no position to say that they had no adequate advance notice that they would be visited with punishment. When they act willfully in the sense in which we use the word, they act in open defiance or in reckless disregard of a constitutional requirement which has been made specific and definite. When they are convicted for so acting, they are not punished for violating an unknowable something. Screws v U.S. 325 U.S. 91 @ 106 Lt. Powell knew, or should have known, access to that hearing would reveal a crafted connivance intended to bypass the due course of the laws and place those accused of crime in such an impossible legal position they would have virtually no reasonable alternative to a plea of guilty. These contrivances have become so well structured as to achieve a conviction rate in Johnson County, at statistically, 100%; not exactly 100% but within half a percent. Almost every person accused of crime in the district winds up entering a plea of guilty. Consider how many people you know of, who, when accused of crime say, "Oh yeah. I'm guilty. Punish me." Conviction rates are outrageously high because everyone takes the deal, and everyone takes the deal because most every step, as presently practiced from arrest to trial in Johnson County is in clear, direct, and specific violation of particular law. Although the particulars are too long and complex to present here, it is an assertion I am prepared to demonstrate with what the prosecutor would call specificity and particularity. In a 60 page document I call The Frog Farm Conspiracy, I demonstrate with said specificity and particularity, not only that most every step as presently practiced is in clear and direct violation of law, but how it got this way and how it serves the professional purpose of prosecutors. It will show how these practices allow prosecutors to avoid due course considerations of guilt or innocence, the right of things, and rather or not justice is served, and how it dramatically reduces their workload to simply cranking out "The Deal." I say we have trouble, right here in Johnson County, yes we have trouble. It's not Gene Kelly's demon pool but it is a problem, and we have no music man to set things to right. What we do have is you, the grand jury. While I will allege against the prosecutor and other public officials, let it not be construed I have any axe to grind with any of them; neither do I consider them anything but earnest and conscientious public servants. I do maintain they have inherited a system that is terribly flawed. They stepped into the way things have long been done. The fact that they way things have been done are incredibly illegal may never have occurred to them, but that does not excuse their acts. Whatever those who came before may or may not have done is irrelevant. All that matters at this point are that things are broken and it is your duty to set them to right by indicting those responsible for perpetuation of horrendous wrongs. Things have gone terribly wrong and it starts with the hearing I was trying to witness and ultimately lands at your feet. Judge Davis and Lt. Powell feel comfortable violating what appears to be clear and specific law as they have good reason to believe they can do as they please with impunity as no prosecutor will present them for the acts they commit which serve the prosecutoral purpose, and they are right. The system took a terrible turn when prosecuting attorneys simply decided to refuse to abide by a law put in place to handle the specific problems associated with this particular circumstance, the circumstance where a public official is accused of a crime. Chapter 2 of the Texas Code of Criminal Procedure was written to direct our public officials in their duties and, primarily, to limit their powers and authority in certain areas and situations in order to avoid the terrible potential for abuse. We did not give them carte blanch to act as they please. In order to insure that these laws were enforced, the very first law in the Texas Code of Criminal Procedure which direct a public official in a specific duty is Article 2.03 Texas Code of Criminal Procedure. The first article under "Duties of Officers" is Article 2.01. It directs prosecutors as follows: Art. 2.01. DUTIES OF DISTRICT ATTORNEYS. Each district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom, except in cases where he has been, before his election, employed adversely. When any criminal proceeding is had before an examining court in his district or before a judge upon habeas corpus, and he is notified of the same, and is at the time within his district, he shall represent the State therein, unless prevented by other official duties. It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused. Article 2.02 addresses county attorneys. Art. 2.02. DUTIES OF COUNTY ATTORNEYS. The county attorney shall attend the terms of court in his county below the grade of district court, and shall represent the State in all criminal cases under examination or prosecution in said county; and in the absence of the district attorney he shall represent the State alone and, when requested, shall aid the district attorney in the prosecution of any case in behalf of the State in the district court. He shall represent the State in cases he has prosecuted which are appealed. Article 2.03, the first specific statute governing specific behavior of a prosecutor directs him to present allegations against public officials to the grand jury. Art. 2.03. Neglect of duty (a) It shall be the duty of the attorney representing the State to present by information to the court having jurisdiction, any officer for neglect or failure of any duty enjoined upon such officer, when such neglect or failure can be presented by information, whenever it shall come to the knowledge of said attorney that there has been a neglect or failure of duty upon the part of said officer; and he shall bring to the notice of the grand jury any act of violation of law or neglect or failure of duty upon the part of any officer, when such violation, neglect or failure is not presented by information, and whenever the same may come to his knowledge. (b) It is the duty of the trial court, the attorney representing the accused, the attorney representing the state and all peace officers to so conduct themselves as to insure a fair trial for both the state and the defendant, not impair the presumption of innocence, and at the same time afford the public the benefits of a free press. Our founders recognized the potential for abuse if a prosecutor was given even the semblance of discretion in these matters. It would put the prosecutor in an intrinsically compromising position. No prosecutor should be put in the position of exercising discretion on matters affecting people who when they act under his legal advise. It is the very first directive; it may not be construed an afterthought. It is separate from the normal prosecutorial procedures as specified by Articles 2.04 and 2.05. You will notice they essentially tell the prosecutor to do the same thing as Article 2.03, except, under 2.03 all crimes, felony or misdemeanor, are to be presented to the grand jury. Art. 2.04. SHALL DRAW COMPLAINTS. Upon complaint being made before a district or county attorney that an offense has been committed in his district or county, he shall reduce the complaint to writing and cause the same to be signed and sworn to by the complainant, and it shall be duly attested by said attorney. Art. 2.05. WHEN COMPLAINT IS MADE. If the offense be a misdemeanor, the attorney shall forthwith prepare an information based upon such complaint and file the same in the court having jurisdiction; provided, that in counties having no county attorney, misdemeanor cases may be tried upon complaint alone, without an information, provided, however, in counties having one or more criminal district courts an information must be filed in each misdemeanor case. If the offense be a felony, he shall forthwith file the complaint with a magistrate of the county. Being well aware of the mandate contained in Article 2.03, I took a verified criminal affidavit, complete in accordance with Article 15.05 Texas Code of Criminal Procedure to the district attorney. Art. 15.05. REQUISITES OF COMPLAINT. The complaint shall be sufficient, without regard to form, if it have these substantial requisites: It must state the name of the accused, if known, and if not known, must give some reasonably definite description of him. It must show that the accused has committed some offense against the laws of the State, either directly or that the affiant has good reason to believe, and does believe, that the accused has committed such offense. It must state the time and place of the commission of the offense, as definitely as can be done by the affiant. It must be signed by the affiant by writing his name or affixing his mark. The term of the last grand jury expired with no presentation of said compliant or the specifically mandated "information" ever having been presented. Neither has the complaint been presented to some magistrate. One thing to understand, when I went to the prosecutor's office with a complaint, I was not complaining. I presented the district attorney with a verified criminal affidavit. Under law, as a citizen, I have the same power to report crime as any police officer. As a matter of fact and well-established law, when a police officer presents a complaint to a magistrate, s/he does so, not in his/her official capacity, but in a personal capacity. Affidavits may not be presented in official capacity, they may only be presented in personal capacity as the affidavit must be sworn to under penalty of perjury. This prevents the state from being the position of becoming both accuser and prosecutor. When I presented the prosecuting attorney with a verified criminal accusation, he was officially made known that a public official had violated a law relating to her office. We hear a lot of radical reactionary groups ranting about how they are sovereign citizens. While they only talk about it, in this particular context, I (as a credible citizen as defined by law) am a sovereign. As a sovereign citizen in this republic, I enjoy certain rights and, as with any sovereign, I have a duty to endure that all the governmental instruments under my sovereign control act in accordance with the laws I, and all the other sovereigns in this country have enacted, are followed by our servants. Therefore, I come before you in an equal capacity to any public official, be he police officer, prosecutor, or anyone else and discharge my duty to report crime. The prosecutor in this circumstance had a very specific duty. However, instead of acting in accordance with the clear mandate of Article 2.03 Texas Code of Criminal Procedure (supra), I was instead directed to the Sheriff's Department to file a complaint there (see letter attached). Perhaps I misread Article 2.03. It seems to place, on the prosecuting attorney, a specific duty but I could be wrong. We should look to the starie decisis, the rulings of the court to find the meaning of the legislation. I have been able to find only one case on point, and it is directly on point. The courts seem to think the same as I when it rendered the decision in Miller v State 874 S.W.2d 908; 1994 Tex. App. 836. Twenty persons were arrested for class C misdemeanor gambling but only one was prosecuted. On objection to selective prosecution the court held: No other participants at the lake house were similarly situated as appellant, the sheriff of Brazos County. Further, the district attorney has a duty to present to the grand jury any information of official misconduct by an officer. Tex. Code Crim. P. Ann. art. 2.03 (Vernon 1977). Miller v State 874 S.W.2d 908, *; 1994 Tex. App. 836 at 19 I made it clear to the district attorney's office that I felt going to the Sheriff's Department was a bad idea, but the office insisted, so I relented and went with a verified criminal affidavit and the letter from the district attorney directing me there. I presented both the verified criminal complaint against Judge Davis to Corporal Nowell. After reading the complaint and the letter from the district attorney, he left, apparently to confer with his superiors. He returned shortly and told me I would have to get an attorney and that he could not help me. I insisted this was not a civil matter, but rather criminal and he had a specific duty to take my complaint and act on it in accordance with Article 2.13 Texas Code of Criminal Procedure. At that point he ordered me to leave the building. When I declined he told me to either leave the building or he would arrest me. The Sheriff's Department finally took the complaint, but not until I had been ordered to leave the building three different times by three different deputies and threatened with arrest for criminal trespass each time, if I refused. The highest-ranking officer who made such a threat was Chief Deputy Bill Smith. Let me put this in perspective. I go to the jail and ask to view a public hearing; I am denied access by jail personnel in the name of the judge holding the hearings; I then go to the prosecuting attorney and make it known to him that a public official has violated a law related to his office; in spite of his very specific duty to take that complaint, reduce it to an information, and present it to you, the district attorney sent me back to the jail where I was repeatedly threatened with arrest if I didn't leave without filing the complaint. The threats and intimidation having no effect, the Sheriff's Department finally took the complaint and have presented it to no one, not some magistrate as directed by law, not the prosecuting attorney who has been waiting for it, no one. Have I missed something here? I almost feel like I am dealing with the Mad Hatter, through the looking glass, where words are not substantial and meaning morphs to some self-serving mantra. Are the laws only laws when applied to citizens like you and I, or is something terribly wrong? It is important you understand why the prosecutor sent me to the Sheriff's Department to file the complaint. By filing it with the Sheriff's Department, the prosecutor could have the compliant sent to him under the auspices of requesting legal advise as there is nothing in law that directs a complaint to a prosecuting attorney. All law directs complaints to "some magistrate." By getting the policing agencies to send complaints to the prosecuting attorney, he gets opportunity to exercise an authority specifically denied to him by statute. By this avenue, he can claim he has not been officially notified and can, therefore, render advice to the police. He can advise them not to pursue prosecution and simply throw the complaint in the trash. This way he can give the appearance of not being bound by Article 2.03. In fact that is not true, but if I didn't know better, I could easily get lost in the fluff and bluster and the prosecutor could simply toss the complaint in the trash and keep doing the things he has been doing. The things he has been doing bear directly on the case for public access to the courts. In case you consider witnessing the hearing simply an academic exercise, let me assure you it was not. The reason I went to the court was in an effort to find the single most important document to any prosecution, the original criminal complaint. In fact, it has been held, long ago and recently, that the filing of a complaint accusing one of a felony offense with a justice of the peace is the initial step in the commencement of a prosecution under Texas law. Baskins v. State, 75 Tex. Crim. 537, 171 S.W. 723, 725 (1914); Ex parte Clear, 573 S.W.2d 224, 228 (Tex.Cr.App. 1978). The above cited by the court in Rios v State 688 S.W.2d 642 Specifically, I was looking for the criminal accusation the arresting officer was required to prepare and present to the magistrate as, without such a document, the court would lack jurisdiction of any kind to hold hearings or render any rulings. I had looked in the records of the clerk of the district and county courts. In all the cases I examined the original complaint was not there. In the District Court there was no complaint of any kind. People are being prosecuted when no credible person has ever accused them of a crime, at least not according to the court record and the court record is all that counts. I found indictments and informations but no complaints. While a 1985 Constitutional Amendment asserted that the information or indictment confers jurisdiction on the court, it did not change the requirements for indictments or informations and the courts have long and consistently held that an information or indictment not based on a valid criminal complaint is void and worthless for any purpose. OPINION: [*37] Winkler, J. From all we can gather from the transcript of the record, the information upon which the appellant was tried and convicted was filed without any written affidavit that any offense against the law had been committed by the defendant; and without this the information was worthless and totally insufficient to support a conviction. The Bill of Rights declares, among other things, that "no warrant to search any place, or seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation." Const., art. 1, sec. 9. This declaration, being among high powers excepted out of the general powers of government, is placed beyond the control of courts and legislatures. By article 404 of the Code of Criminal Procedure it is declared that an information shall not be presented until oath has been made by some credible person charging the defendant [**2] with an offense. There is no conflict between the provision of the Code above referred to and the act of the fifteenth Legislature defining and regulating the duties of county attorneys (Acts 1876, p. 85), the 13th section of which (p. 87) provides that, "upon complaint being made before any county attorney that an offense has been committed which the county court or a justice of the peace has jurisdiction to try, it shall be the duty of said county attorney to reduce the complaint to writing and cause the same to be signed and sworn to by the complainant, and it shall be duly attested by said county attorney. Said complaint shall state the name of the accused, if his name is known, and the offense for which he is charged shall be stated in plain and intelligible words, and it must appear that the offense was committed in the county where the complaint is filed; and the complaint must show, from the date of the offense stated therein, that the offense is not barred by limitation." [*38] Section 15 of the same act provides that "it shall be the duty of the county attorney, upon the filing of said complaint, to prepare an information in writing, which shall be in compliance with [**3] article 403, part 3, title 4, chapter 3, of the Code of Criminal Procedure. See Davis v. The State, 2 Tex. Ct. App. 184. After conviction the accused moved the court to grant him a new trial, alleging in the motion, among other grounds, that the verdict was contrary to the law and the evidence; which motion being overruled, the defendant excepted and gave notice of appeal, and took a bill of exceptions to several rulings of the court on the trial, and among them the overruling of the motion for a new trial. It is unnecessary that we should go back to Runnymede and to the days of King John and trace the progress from its origin down, or notice that the same principle is embodied in the Constitution of the United States, as well as in all the Constitutions of the republic and state of Tex. and ingrafted in the Bill of Rights of our present organic law, that "No citizen of this state shall be deprived of life, liberty, property, privileges, or immunities, or in any manner disfranchised, except by due course of the law of the land." In order to show that the case we are considering has no legal foundation upon which it can stand, it suffices that the information was filed [**4] without an affidavit or sworn complaint in writing, which, under the law, as we have seen, was an indispensable prerequisite to the information. It will not do to say that the present case is a comparatively small matter, and that, therefore, the defects should be overlooked. The constitutional guaranties and legal requirements here involved, and which, as we think, have been violated, are the same as those upon which rest our most sacred rights of life, liberty, and property. For the reason that there was no affidavit charging the [*39] appellant with any offense against the law filed either prior to, or simultaneously with, the information, the judgment against the accused is reversed and this prosecution is dismissed. J. M. Thornberry v. The State.3 Tex. Ct. App. 36; 1877 Tex. 202 1877, Decided In the County Court records I found complaints prepared long after the fact. The original compliant, the one, which was necessary to confer original jurisdiction on the court, and the one that would start the speedy trial clock, was not in the record of the courts. Our law consists of numerous interlacing checks and balances which must always be maintained in order to preserve our constitutional form of government. It is apparent that our procedure, which authorizes prosecutions by information presented by the prosecuting attorney, is bottomed upon the proposition that there must be a supporting affidavit, without which an information cannot be lawfully presented. WILMA HAZEL KENNEDY v. STATE (02/09/55) 276 S.W.2d 291, 161 Tex. Crim. 303 So, since that document is not in the court record, I was interested in what happened to it after it was presented to the judge who held the morning hearing at the jail for people arrested and held there? Article 17.30 Texas Code of Criminal Procedure specifically directs the magistrate to forward all documents had in any examination into any allegation, to the clerk of the proper court. Art. 17.30. [296] [347] [335] Shall certify proceedings The magistrate, before whom an examination has taken place upon a criminal accusation, shall certify to all the proceedings had before him, as well as where he discharges, holds to bail or commits, and transmit them, sealed up, to the court before which the defendant may be tried, writing his name across the seals of the envelope. The voluntary statement of the defendant, the testimony, bail bonds, and every other proceeding in the case, shall be thus delivered to the clerk of the proper court, without delay. The magistrate holding these hearings is not necessarily learned counsel. S/he could be a mayor, city recorder, or justice of the peace who are not necessarily learned legal professionals, therefore, the records of the hearing must be maintained so that the accused my have the right to raise an objection to the propriety of the proceedings before a court of record where the judge will be learned counsel. This, however, cannot happen as the records never reach the proper court, so there is no way to challenge the original determination of probable cause. In spite of the clear mandate contained in Article 17.30 above, the records were not sealed up and put in the protection of the clerk of the proper4 court. Someone misdirected the criminal accusation and other documents had in the hearing; someone has those records; and that someone is in violation of Section 37.10 Texas Penal Code. 37.10 Texas Penal Code, Tampering With A Government Document: A person commits an offense if he: knowingly makes a false entry in, or false alteration of, a government record: Makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine government record. intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record; (Exception) Except as provided in Subsection (d), an offense under this section is a Class A misdemeanor unless the actor's intent is to defraud or harm another, in which event the offense is a state jail felony. So, I went to observe the hearing find out what was done with the documents. All this begs a question: Why would the magistrate hold the morning examination hearing in secret, deep in the jail where no citizen can observe the procedure? I suggest it is precisely because those hearings are not held according to law that they are kept out of the public eye. They are held deep in the secure section of the jail, even though a perfectly adequate court facility exists in an area that would not pose a security risk for the public. Remember, at the beginning, I indicated I was unsure of what to call the hearing? This is the reason. It is not called an examining trial as that would clearly trigger the protections laid down in Chapter 16 Texas Code of Criminal Procedure. The prosecutor would have to be present (which would be most inconvenient), there would have to be counsel for the accused, there would have to be a proper examination into the sufficiency of the allegation before remanding the person to the court, a proper warrant would have to be prepared by the magistrate conferring jurisdiction on the court which, most important of all, would start the speedy trial clock. Article 16.17 Decision of the Judge After the examining trial has been had, the judge shall make an order committing the defendant to the jail of the proper county, discharging him or admitting him to bail, as the law and facts of the case may require. Failure of the judge to make or enter an order within 48 hours after the examining trial has been completed operates as a finding of no probable cause and the accused shall be discharged. I find no such orders in the records of the court. Also, the requirement to prepare a warrant in accordance with Article 16.17 would make it clear to the magistrate that the hearing being held was an examining trial, held under Chapter 16 Texas Code of Criminal Procedure, and the records would have to be forwarded to the clerk of the proper court. Regardless of the reason, the holding of secret courts is forbidden by Constitution and law. I, as a citizen of the State of Texas, have a specific right to a public court and to deny me access to same is to deny me in one of my most basic rights. To go to great effort to provide a redundant courtroom deep in the jail in order to hold hearings that would exclude the public can only be construed as a deliberate attempt to circumvent Constitutional and statutory requirements. Having personal knowledge that a public official had violated a law relating to her office, I, as a citizen in this democratic republic, had a civic duty to report that crime. My right and duty to report crime is the same as that of any police officer or other member of the public. When I made it known to the district attorney that a public official had violated a law relating to her office, by way of a verified criminal affidavit complete in accordance with Article 15.05 Texas Code of Criminal Procedure, the district attorney had a specific duty as clearly specified by Article 2.03 Texas Code of Criminal Procedure. On May 19, 2006, I made personal service of the document to the office of Dale Hana and after presenting the document to the clerk in the office, security was called and I was rather unceremoniously evicted from the building. Actually I was only sort of evicted. One officer ordered me to leave and another, an Officer Jones, was having fun showing me how aggressive and threatening he could be with his face inches from mine and his hand on his pistol. On May 30, 2006, I received a letter form the office of Mr. Hana informing me that I must file the compliant with the Sheriff's Department and they would prepare a case file and submit the complaint to the District Attorney's office for consideration. On cursory consideration this may appear a reasonable practice. The problem is, it is against law. It is a deliberate tactic of the prosecutor to avoid certain restrictions placed on his office. Prosecutors are the only persons forbidden to swear out a criminal complaint in the court the prosecutor represents. This is to keep the prosecutor from having the power to initiate a prosecution. Our founders absolutely forbade the government from being both the accuser and the prosecutor as the King of England once was. Officials could accuse in the name of the King then prosecute in the name of the King with impunity and it lead to horrendous abuse. So, when our founders structured this country and this State, they forbade the State from being both accuser and prosecutor, thus the requirement that all prosecutions commence by the presentation of a criminal accusation by some credible citizen to some magistrate, and the courts have consistently held that a prosecution commences when a person is arrested or when a complaint is presented to some magistrate. An information is a "primary pleading in a criminal action on the part of the State," Article 27.01, V.A.C.C.P., a written pleading in behalf of the State drawn, filed and presented by a prosecuting attorney charging an accused with an offense that may be prosecuted under the law. Article 21.20, V.A.C.C.P. in order to "protect its citizens from the inherent dangers arising from the concentration of power in any one individual," Kennedy v. State, 161 Tex. Crim. 303, 276 S.W.2d 291 (1955) (Opinion on Motion for Rehearing, at 664), the Legislature precluded a prosecutor from presenting an information "until affidavit has been made by some credible person charging the defendant with an offense," and also mandated, "The affidavit shall be filed with the information." Article 21.22, supra. Such an affidavit is, of course, a complaint within the meaning of Article 15.04, V.A.C.C.P. "In other words, a prosecuting attorney is not authorized to institute prosecutions in the county court upon his independent act or of his own volition." Kennedy v. State, supra, at 294. One may not be "both the accuser and the prosecutor is misdemeanor cases." Wells v. State, 516 S.W.2d 663, at 664 (Tex.Cr.App. 1974). Compare Glass v. State, 162 Tex. Crim. 598, 288 S.W.2d 522 (1956); Catchings v. State, 162 Tex. Crim. 342, 285 S.W.2d 233, at 234 (1955). Nothing in law directs a complaint to a prosecuting attorney. Complaints are always directed to some magistrate. When a prosecuting attorney had it made known to him that a crime has been committed, he is specifically directed to have the complaint reduced to writing, have it sworn to by the accuser, and present the complaint to some magistrate. A complaint may go through a district attorney's hands on the way to some magistrate, but may not stop with him. So, by what legal mechanism do complaints get sent to prosecutors in lieu of "some magistrate?" Well, prosecutors have been directed to give legal advice to the police and lower courts. As you will see, that is a prescription for disaster where you have a prosecutor advising the police and courts on matters that will be handled by them. You would expect prosecutors to advise the police and lowers courts to do things that server the interest of the prosecutors and that is exactly what has happened. By having the complaint forwarded to the prosecutor, ostensibly so the prosecutor can give legal advice to the sender, the prosecutor interrupts the prosecution, putting it essentially in a legal limbo. The accused has usually been arrested, put on bail or remanded to the jail to await trial, but no cause actually exists as there is no record in the court having jurisdiction. They are in a legal limbo until the prosecutor presents the complaint to the clerk of the proper court, which he will not do until he gets a deal. In the instant case, if the prosecutor could get me to accept the procedure of filing the complaint with the Sheriff's Department and have them forward it to the prosecutor, a prosecution never begins and the prosecutor can simply advise the Sheriff that the complaint is without merit and throw it all in the trash. If I filed the complaint with the Sheriff and did not follow up, I assure you, you would never be presented with the complaint and information as Article 2.03 Texas Code of Criminal Procedure commands. The statute clearly states that when the prosecutor is made known "in any manner" that a public official has violated a law relating to his office, he must present the fact to the grand jury, but it simply doesn't happen and this tactic of sending me to the Sheriff, even if I get by all the threats and bulling, the complaint will simply disappear. In the instant case, nothing has been presented to any magistrate by the Sheriff's Department and neither has the complaint been forwarded to the prosecuting attorney. In this particular case there is a special problem with this procedure as the Sheriff's Department is necessarily compromised as the hearing was held at the jail and kept secret by jail personnel. So, the prosecuting attorney would have me file complaints with co-conspirators. It would seem if one filed complaints against criminals with the criminals, one could expect somewhat less than enthusiastic cooperation. But then, we should keep in mind, I was only threatened with arrest three times. On the face of it, a reasonable person of ordinary prudence would conclude there should be some alternative method provided to remedy criminal acts by those entrusted with enforcing law, some method that would not involve the discretion of officials who may tend to have some personal or professional involvement. To our founder's and subsequent Legislator's credit, they had foresight enough to prepare just such a protection. It was never intended that a prosecuting attorney should be put in the position of having to take responsibility for initiating a prosecution against someone with whom he works or has a professional association. So, in the case of an allegation against a pubic official, the prosecutor was given a specific duty to present the accusation to the grand jury so that a grand jury of our peers (not their peers) could determine whether or not to pursue prosecution. All this begs a few questions: Why would the prosecuting attorney refuse to act on a complaint against a public official as directed by statute? Why would the prosecutor, in the case of a compliant against a judge, committing a crime in the jail in concert and collusion with jail personnel, send me to those very personnel? Why would the judge deny citizens access to otherwise public hearings then secret documents from the clerks of the proper courts? All of this is going on because something else is going on and the prosecutor is right in the middle of it. I am sure the prosecutor will tell you how this is the way things are done, have always been done, and the way he intends things will continue to be done. That is to be expected as the procedures I am here complaining of have been orchestrated, carefully crafted, and subtly implemented by prosecutors in order to ease their personal prosecutorial burden. It is not my contention that the current prosecutor created this entire horrible mess. It is enough that he inherited, then perpetuated it. That the current district attorney did not set things to right according to the rule of law is his evil deed. That he continues to exploit these improper procedures toward his personal and professional purpose is his crime. Prosecutors have long been trying to eliminate grand juries altogether. They consider you a worthless waste of their time. You are not necessarily attorneys, so what can you be expected to know about the intricacies of the legal process? What background do you have to decide what cases should be prosecuted and which should not? They feel they are much better qualified, suited, and situated to make those determinations, but still they have to present to you. Our Constitutional Framers and subsequent Legislators, while aware of the need for prosecutors, were also aware of the terrible potential. Toward the protection of all, they put in place the grand jury to stand squarely between the prosecuting attorney and the criminal courts. It was clearly intended that no person be held to answer for an infamous allegation except by your considered judgement. Prosecutors, for their part have been specifically forbidden to initiate or dismiss these prosecutions. That power has been entrusted to you. Again, it should always be kept firmly in mind that the Constitution and Code of Criminal Procedure was written for one reason: to protect the people from the terrible instruments of government they created. Therefore, we must insist our officials scrupulously follow and abide by the limitations and stipulations we have mandated for them without regard to their personal or professional opinions as to the necessity or wisdom of the statutes. Our founders were not so concerned with administrative convenience or adjudicative expediency of prosecutors as they were with justice. Each statute has been carefully crafted, meticulously structured, and continually honed to ensure the purpose of the just treatment of the citizens who are the purpose of all law. "Sovereignty itself is, of course, not subject to law, for it is the author and source of the law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom all government exists and acts." Yick Wo v. Hopkins 118 U.W. 356 Even though the body of law we have in place to protect us is the best in the world, our founders realized its terrible weakness. The weakness is that the law must be administered by human beings with all their flaws and weaknesses. Therefore, in order to ensure the sanctity of the law, our founders put in place two primary checks to the balance of official powers. They put me, the singular, individual citizen with the duty and authority to report crime, even when the criminal is one of our own public officials. They also put you in place as a grand jury of my peers to insure the public against personal or political prosecutions. I went to the office of the district attorney and made it known to the office that Judge Davis violated a law relating to her office. I made it known by verified criminal affidavit, complete in accordance with Article 15.05 Texas Code of Criminal Procedure. The district attorney, without regard to any personal or professional opinion he may have, had a specific duty to present said complaint to the grand jury. Instead, the district attorney directed me to the Sheriff's Department so they could threaten and try to intimidate me so that the facts of the missing complaints would not come to light. If you don't consider that sufficient motivation for the prosecutor to refuse to perform his specific duty, consider this. Remember the complaints I was looking for at the beginning? Well, I am pretty sure where they are. Those complaints are in the files of the District Attorney. For the purpose of clarity, I will only address felony allegations here. At the hearing I attempted to witness, the magistrate, instead of sealing all the documents had in the hearing in an envelope, causing her name to be written across the seal, and forwarding them to the clerk of the court having original jurisdiction as directed by Article 17.30 Texas Code of Criminal Procedure supra, the magistrate gave the file back to the jailer from whom she received it. Now, we have no idea what the jailer did to the file, what was subsequently put in or removed as it was not under the protection of the clerk of the court. The jailer then forwarded it to the District Attorney; it never reached the clerk of the proper court as commanded by law. So, you might wonder, why would they do a thing like that? Well, the reason they do that is so that the prosecuting attorney can circumvent a couple of laws he finds inconvenient. Article 32.02 Texas Code of Criminal Procedure specifically forbids a prosecuting attorney from dismissing a prosecution without first filing a motion with the court and by permission of the presiding judge. Art. 32.02. DISMISSAL BY STATE'S ATTORNEY. The attorney representing the State may, by permission of the court, dismiss a criminal action at any time upon filing a written statement with the papers in the case setting out his reasons for such dismissal, which shall be incorporated in the judgment of dismissal. No case shall be dismissed without the consent of the presiding judge. You should notice there are two sentences in this statute and both say the same thing. You will never see this in a statute again. It is as if the Legislature wanted to be sure there was no misunderstanding on this matter so they stated it twice. Prosecutorial discretion (where a prosecutor has discretion to decide what to prosecute and what not to), while it may be allowed somewhere, in Texas it is specifically forbidden. By secreting the complaint to the prosecuting attorney instead of filing it with the proper court, the prosecution is interrupted. The prosecutor manages to subvert the clearly stated intent of Article 32.02 Texas Code of Criminal Procedure. If you go to the jail and get a list of all the people recently arrested, then go to the corresponding courts and check the court records there, for the most part you will find nothing. Keep in mind, the person has been arrested, hauled before a magistrate who determined there was sufficient evidence to bind the person over for trial and bail was set. The person was then either released on bail or remanded to the jail in the event the individual could not raise bail, however, as far as the court is concerned, they do not exist. The accused find themselves in a legal limbo where there is no cause in existence against them and, therefore, no place where they may seek legal remedy by the filing of motions. There will be no cause against the accused until the prosecutor manages to squeeze out a deal, then a record will be filed with the court. The original records of arrest never make it to the protection of the clerk of the court. They simply disappear into the prosecutor's files. No challenge can be made to the original determination of probable cause as there never is a proper determination made and the records of the hearing have been made to disappear. The courts have consistantly held that a prosecution commences when a person is arrested or when a complaint is presented to some magistrate. That is what was intended, but that is not how it works in Johnson County. In Johnson County, you can be arrested for any bogus allegation, hauled before a magistrate who will not perform a proper examination into the sufficiency of the allegation, but will rather, rubber stamp the arrest, bind you over for trial, then cast you into legal limbo by secreting the proper documents from the protection of the clerk of the proper court as clearly prescribed by law. By secreting the compliant and all other documents had in the hearing to the prosecuting attorney, there is no record in the proper court that you have ever been arrested. If you try to file a motion or any other document in the cause, you will find there isn't one. No cause, no record, no anything. Sure, there are records somewhere, but just try to find them. You will find misdirection, obfuscation, intimidation, and frustration as I have. If you persist, you will most certainly find yourself castigated, intimidated, pushed around, and subjected to all manner of threat by people displaying loaded pistols and bad attitudes. Putting the accused in a legal limbo serves two prosecutorial purposes: the first is that it keeps the speedy trial clock from starting and gives the prosecutor all the time he needs to work "The Deal." He has the person on bail or sitting in jail, in either case, he has leverage to start turning the screws. He will force them to attend bogus hearings specifically called to force the accused to meet with the prosecutor where he gets to threaten them with all the things he will do to them if they don't take his perfectly reasonable deal. The habitual criminal knows the score. He knows the prosecutor does not want to take him to court. Criminal trials are a real pain. What the prosecutor is interested in is making a deal and the criminal knows that and knows how to work the system. It is the innocent that are a problem. They don't want anything to do with a deal. They want their day in court, therefore, they take a little longer. The person wrongly accused and abused by the system is usually outraged and angry, in no mood to take the prosecutor's perfectly reasonable deal. What the prosecutor needs is time. He needs time and leverage. He needs the person at his beck and call, bound at his liberty, constantly subject to bail revocation and being tossed in the slammer. He needs time for the outrage the innocent justly feel to morph into dread, to fear, then to outright terror. This tends to take more than 180 days, even with the help of court appointed counsel. Oh, let me guess, you still think a person's attorney is going to go to bat for them and protect their rights. Not in this life; not in Texas. In Texas, most attorneys pay their overhead with the fees they get as court appointed counsel and this is how it works. The court appoints an attorney to represent a client; the attorney goes to the prosecutor and asks for a deal; the attorney then goes to the client and tells him, here is the deal, take it as it is your only chance. You may be wondering why your attorney will do that to you. Well it always goes back to money. If the attorney puts on a vigorous defense for you, he will be paid about $350 for his representation. If he gets you to take a quick deal, he gets paid (you guessed it) about $350. Besides, if he forces the judge to sit through a court trial, he can forget about getting appointed to represent any more clients. Just ask any attorney if judges will rule against subsequent clients to get back at any attorney who annoys them and they will tell you, as they have consistently told me, "You are damn right they will." I mentioned two purposes above. The second concerns certain obstinate citizens who simply refuse to be bullied and simply will not be reasonable and "cop a plea" in order to end the misery. When it becomes clear the accused will not give up his claim of innocence the prosecutor must then look at the feasibility of winning in court and if the case is worth his time and effort; if not, he my want to drop the case. With no record of the allegation, the prosecutor can just let the case ride indefinitely in the hope that, in the event the accused gets charged with something else, he can drag up this old charge and use it as leverage to get a deal on the second. Things are far more complex and much worse that I have indicated here. The prosecutor, by giving legal advise to the police and lower courts, have arranged practices and procedures to serve the prosecutorial purpose to the detriment of us all and that is the very reason he tried to send me back to the Sheriff. Besides interrupting the speedy trial clock, by having the compliant forwarded to the prosecutor's office, the prosecutor gets to take control of the prosecution. Something specifically forbidden by law is accomplished by getting other officials to simply ignore law. Since the complaint never gets to the clerk of the proper court, the cause never becomes a cause unless or until the prosecutor decides to file it. By having me file my complaint with the Sheriff, the prosecutor can be sure the Sheriff will not act in accordance with Article 2.13 Texas Code of Criminal Procedure. He can be certain the Sheriff will not present the complaint to `some magistrate' as clearly commanded by law. He can be sure the Sheriff will forward the complaint to him so he can throw it in the trash. The last thing the prosecutor wants is for magistrates to do what the law commands them to do. Pretty slick. He has all his bases covered, well, almost. Our founders were well aware of the potential for abuse and created grand juries just like yourself to stand squarely between the prosecutor and the court. I have come to you to ask you to do just that. I have come to ask you to indict the prosecuting attorney for his knowing and deliberate violation of Article 2.03 Texas Code of Criminal Procedure which proscribes a ministerial duty on the part of a prosecutor over which he has no discretion but is clearly directed to do a certain thing. Such a failure on the part of the prosecutor is defined as Official Misconduct by Section 39.02 Texas Penal Code. Before the making and filing of this compliant, I have attempted to find some legal footing or foundation on which the prosecutor can base his refusal to follow law. I have found nothing. An indictment will put the matter before the courts and if the prosecutor has some legal grounds, he should be put to it. With all that said, I feel I need to reiterate that I have no axe to grind against Dale Hana or anyone involved in any of the allegations made here. I will admit I don't like to be threatened and pushed around by people with guns but, that I have been thusly treated is simply part of the problem of letting public officials make their own law. What I address here is a problem beyond Johnson County. These practices and procedures have become common across Texas and someone needs to stand up and point out the fact that the emperor has no clothes. We need this issue before the courts where the practices and procedures can be held up against the Constitution and statutes and a legal determination of their validity made. As outrageous as it may seem, this has not been done. When I say it hasn't been done, I mean that it hasn't been done with statutory authority. Many civil cases have been filed concerning bits and pieces of the problem, but with judges who can rule with total disregard for the rules of civil procedure, there is effectively no law other than that dispensed by judicial caprice. Since no prosecutor in his right professional mind will take on a judge as all the other judges can rule against his future clients with impunity, in retaliation and ruin his career. Since judges can't be sued and prosecutors don't dare prosecute them, they are free from rule of law altogether. What attorney in his right professional mind would stand up for your rights and risk raising the ire of a judge by forcing them to follow procedures that will cause the judge to sit through the interminable cases that just go on and on? This sort of lets my cat out of the bag, so to speak. You see, prosecutors are not really the problem. They are a symptom of the problem. Judges are the problem, but how do we get to them? How do we bring them back to the rule of law? We bring them back to the rule of law by way of Article 2.03 Texas Code of Criminal Procedure. If prosecutors are taken out of the position of having any discretion concerning complaints against public officials, then complaints against judges will necessarily be sent to a grand jury to be ruled on and that will change everything. That will set the system to rights and put the grand jury back where it was intended to be in the first place, back to being the ultimate check to the balance of official indiscretion. Do this. Bring this indictment and put Dale Hana in a position to show legal grounds for refusing to obey law. I chose this county because the prosecutors office has shown such professionalism. I know it may seem contradictory to attack the good guys, but the intent is not to do anyone harm. By taking to task the best I could find, I get to get a clean airing of the problem not contaminated with side issues of malice or anger. I claim no malice in the actions of the prosecutor here. Neither do I have any reason to believe he has acted in anything but the best of faith. I only allege that, by following those before him, by perpetuating improper procedures, he has acted in violation of law and owes answers to us all. VERIFICATION I, Randall D. Kelton, do swear and affirm that all statements made herein are true and accurate, in all respects. _______________ Randall D. Kelton 1890 S Main Cleburne, TX 76033 SWORN TO AND SUBSCRIBED BEFORE ME, ___________________, by Randall D. Kelton, on the ______ day of ---------____________, 2006, which witnesses my hand and seal of office. _________________________________ NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS