Harris County Courts and their Judges Lack Jurisdiction to Sever under Sec. 30.017

MARK BURKE (“PLAINTIFF”):  NOTICE

Reservation of Rights and Statement by Mark Burke Asserting this Severed Civil Action is Void for Want of Jurisdiction

To begin, it is important to document on the record that the severance order issued in this new civil action is void for want of jurisdiction and as such lacks authority or power to hear and decide this severed case. See;

Jones v. Bartlett, 189 S.W. 1107, 1109 (Tex. Civ. App. 1916) (“”It is a plain and undeniable principle that, to give any binding effect to the proceedings of a court, it must have jurisdiction of the person of the defendant and of the cause or subject-matter. The want of jurisdiction makes the judgment utterly void and unavailable for any purpose.””).

Therefore, the use of the naming convention “Plaintiff” should be understood loosely. Mark Burke, acting as the “Plaintiff” in this civil case, unequivocally disavows any proceedings and orders in this matter.

Any responses and filings by Mark Burke should not be construed as a waiver of his objection to this case. It is crucial to note that Plaintiff’s submissions to the court do not imply personal nor subject-matter jurisdiction and should not be interpreted as a waiver of his objection.

Judicial Notice

In order to avoid false accusations of non-participation in the proceedings and the potential risk of being held in contempt of court or facing similar consequences, Plaintiff invokes the court’s allowance to take judicial notice of its own files, and now provides his concerns in writing to add to those files in advance of any hearing(s). See;

In re K.F., 402 S.W.3d 497, 505 (Tex. App. 2013) (“A trial court may take judicial notice of the records in its own court filed in the same case, with or without the request of a party.”).

Facts

Moving on to the procedural posturing in this case, it is highly alarming.  The court itself severed the case, relying on Section 30.017.   Hon. Dan Hinde subsequently issued an Order to Show Cause, scheduling the hearing for Monday, June 19, 2023. However, due to the court’s closure for Juneteenth Day, an amended Order to Show Cause has been set for Friday, June 30, 2023.

The Order references Tex. Civ. Prac. & Rem. Code § 30.017(c), which states:

“The presiding judge of the administrative region or the presiding judge of the statutory probate courts shall assign the severed claim to a different judge. The judge shall dismiss the claim if the claim does not satisfy the requirements of Subsection (a)(1) or (2).”

Subsection (a)(1) is satisfied as the submission is made under oath, as evidenced by 202268307A – BURKE, MARK vs. REEDER, LAUREN HONORABLE THE (Court 234), Plaintiff & Counter-Defendant’s Second Amended Petition, dated 4/17/2023, image no. 108169168:

“RESPECTFULLY submitted this 17th day of April, 2023. I declare under penalty of perjury that the foregoing is true and correct. This declaration under Chapter 132, Civil Practice and Remedies Code. – [signed] Mark Burke, State of Texas / Pro Se”.

Subsection (a)(2) is satisfied as both judges (“Defendants”) acted and are still acting without jurisdiction in the original complaint, as witnessed in 202268307 – BURKE, MARK vs. KPH-CONSOLIDATION INC (DBA HCA HOUSTON HEALTHCARE KINGWOOD) (Court 234).

For instance, as recently as June 13, 2023, Judge Lauren Reeder issued an ORDER SIGNED DENYING MOTION TO DISMISS while lacking jurisdiction over the case due to the fiasco caused by both Defendants after Plaintiff submitted “Plaintiff’s Motion to Disqualify Judge Lauren Reeder and Verified Declaration,” docketed on March 17, 2023, in the original case and which was incorrectly treated as a recusal motion, leading to a series of missteps by the court, during which jurisdiction was lost and never regained. Despite these facts, the court has persisted with its void orders and judgments.

Alas, the court’s mishandling of the case has not ceased, as witnessed again by this suit. There are significant issues related to this Show Cause Order and Hearing.

This is a new case with a new civil action and cause number. Despite this, the docket does not indicate that the Defendants, namely Judges Reeder and Brown, will be attending, nor are they currently represented by counsel.

Plaintiff has thoroughly reviewed the retooled new case docket, and as of the time of writing, no counsel for Defendants has appeared. Consequently, Plaintiff is unable to communicate with Defendants through appointed counsel. Therefore, Plaintiff is left with no choice but; (i) to express concerns directly to the assigned Judge, and; (ii) to attend a one-sided hearing before the same Judge who intends to make a swift determination.

This would violate the protections put in place to ensure a fair tribunal and hearing for Plaintiff. Under normal circumstances, this scenario would infringe upon the absent parties’ rights, similar to the ‘Ex Parte’ hearing Judge Reeder held in January 2023, and which does not benefit from judicial immunity.

However, this is not a normal circumstance, and as the ‘Defendants’ are fellow judges and colleagues, they may be extremely willing to trust in the Hon. Dan Hinde to represent them, present their case and raise legal objections.

Despite this, Mark Burke objects to another hearing which carries the potential for an appearance of impropriety – and having no Defendants or counsel goes far beyond any imagined scenario.  See;

State of Texas v. Perkins, 143 Tex. 386, 391 (Tex. 1945) (“If plaintiff had duly appeared on the day fixed by the fiat for appearance of the defendants, and defendants had not appeared on that date in response to the show-cause notice, the trial court could not rightly have granted plaintiff a judgment upon plaintiff’s ex parte hearing decreeing that the hotel be closed and padlocked and that the defendants be permanently enjoined as prayed. For the court to have taken such action was within his power, but would have been an erroneous use of such power. Such action by the court would have been no more arbitrary, however, than his action in the present ex parte dismissal of plaintiff’s case.”).

It is recognized the facts in the cited case pertains to a TRO hearing and does not rely upon Section 30.017’s allowance to dismiss  the claim. That said, the fact remains that this is a new civil action, a trial case which is proceeding in an untenable format.  See;

State of Texas v. Perkins, 143 Tex. 386, 391 (Tex. 1945) (“It had not been placed upon a trial calendar or set for trial on the merits and had been pending less than a month. Two of the defendants had not been served, either with show-cause notices, or regular citation.”).

In short, all Defendants and/or their counsel should be available for Plaintiff to communicate and examine. Failure of this natural right is, at minimum, a due process violation. However, due to the aforementioned restrictions, Plaintiff is unable to confer with Defendants, as the court is acting as a  judicial gatekeeper.

Plaintiff assumes that there is no need to provide specific reasoning as to why this presents a major due process and constitutional issue. If ordered, Plaintiff can provide a brief on these issues.

Relief

In summary, Mark Burke seeks a determination from the court on the issues raised in advance of any planned hearing(s).  Plaintiff reserves the right to request a hearing on any determination this court provides.

Conclusion

Until that time, Plaintiff respectfully notifies the court that he will not be attending any scheduled hearing(s) that violate his rights to a fair tribunal and hearing.

RESPECTFULLY submitted this 23rd day of June, 2023.

I declare under penalty of perjury that the foregoing is true and correct. This declaration under Chapter 132, Civil Practice and Remedies Code.

Current with legislation from the 2023 Regular Session effective as of June 2, 2023.

Section 30.017 – Claims Against Certain Judges

(a) A claim against a district court, statutory probate court, or statutory county court judge that is added to a case pending in the court to which the judge was elected or appointed:(1) must be made under oath;

(2) may not be based solely on the rulings in the pending case but must plead specific facts supporting each element of the claim in addition to the rulings in the pending case;

and

(3) is automatically severed from the case.

(b) The clerk of the court shall assign the claim a new cause number, and the party making the claim shall pay the filing fees.

(c) The presiding judge of the administrative region or the presiding judge of the statutory probate courts shall assign the severed claim to a different judge.

The judge shall dismiss the claim if the claim does not satisfy the requirements of Subsection (a)(1) or (2).

Tex. Civ. Prac. and Rem. Code § 30.017
Added by Acts 1999, 76th Leg., ch. 608, Sec. 1, eff. 9/1/1999.