Seeking Absent Defendants in Harris County District Court



234th Judicial District



Originally Published:  Jun 27, 2023 | Republished: Jun 27, 2023

Judicial Notice re Proposed Motion to Transfer and Consolidate

Mark Burke, Plaintiff seeks to confer with Defendants but – as recently advised – is unable to do so without sending filings via the gatekeeper, the assigned judge in this ‘severed’ civil action.

Recap (Extracts from Prior Notice docketed Jun. 23, 2023)

Here is a pertinent extract from Plaintiff’s last filing:

“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…

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.”

Motion to Transfer and Consolidate Civil Actions No. 2022-68307 and 2022-68307-A with Civil Action No. 2023-11266

Consolidation applies when two or more cases are pending before a single court. See TEX. R. CIV. P. 174(a). Transfer involves moving a case from one court to another. See; In re J. V. O., No. 04-20-00346-CV, at *5 (Tex. App. Aug. 25, 2021); In re S.J.S., No. 04-22-00249-CV, at *4-5 (Tex. App. Oct. 26, 2022) (“We explained “[c]onsolidation applies when two or more cases are pending before a single court,” and “[t]ransfer involves moving a case from one court to another.” We further explained when a motion and an order to consolidate make clear separate proceedings are pending before different courts, the request to consolidate implies a request to transfer because a transfer is “a necessary condition precedent to consolidation.””)

Mark Burke seeks a determination from defendants if they are opposed to, or unopposed to Plaintiff’s proposed motion, or whether defendants take no position.

Request for Response from Absent Defendants

Tex. R. Civ. P. 191 (“191.2 Conference. Parties and their attorneys are expected to cooperate in discovery and to make any agreements reasonably necessary for the efficient disposition of the case. All discovery motions or requests for hearings relating to discovery must contain a certificate by the party filing the motion or request that a reasonable effort has been made to resolve the dispute without the necessity of court intervention and the effort failed.”).

The civil action to be transferred out,  2022-68307 is currently active in court 234, and which is in discovery. The civil action receiving, 2023-11266 is also in discovery. However, this disputed civil action has no defendants at the time of this filing, and for the reasons which will come to light in the proposed motion when filed, provides good reason for the receiving court to grant the motion.

As such, Mark Burke seeks a determination from defendants if they are opposed or unopposed to this proposed motion.

RESPECTFULLY submitted this 27th day of June, 2023.

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