Reference Material - For Information Only!

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Cases Thoughts on Miranda
Here is an addendum to the Michigan Legal Guide. The Guide is excellent information.
As the ACLU states - shut up, don't say anything, keep your mouth closed.
The following is culled from "Criminal Procedure Handbook" (West Group, 2000/2001 edition). It seems to be a pretty good book. West Group, 620 Opperman Drive, St. Paul, MN 55162; 800-3284880.

A confession must be voluntary to be admitted into evidence. Dickerson v. U.S., 120 S.Ct. 2326 (2000).
An involuntary confession obtained through police coercion violates the Due Process Clause. U.S. v Carroll, 207 F.3d 465 (8th Cir. 2000).
No Miranda warning required while being detained for traffic violation and driver made spontaneous statement which was not made in response to questioning by officer. U.S. v. McCoy, 200 F.3d 582 (8th Cir. 2000).

The statement was made after the officer told the driver that he was going to search the car without his consent.
A statement made to the media after a prior involuntary statement, is admissible, even though the original statement to the detective would have been inadmissible.
Clagett v. Angelone, 209 F.3d 370 (4th Cir. 2000).

"Police officers are not required to administer Miranda warnings to everyone they question. Instead, the warnings mandated by Miranda apply only to statements obtained from an individual who is subjected to custodial police interrogation. The question to ask when determining whether custody existed at the time of police questioning is whether there is a formal arrest or restraint on the freedom of movement of the degree associated with a formal arrest. The standard to be used in asking the question is whether a reasonable person in the suspect's position would have understood this situation as the functional equivalent of a formal arrest." (Section 2:6)
No Miranda warning required where the interview occurred in defendant's home, in the afternoon, after defendant invited the agents in, defendant was never handcuffed, and neither agent exhibited any sign of force, defendant never asked for an attorney and he never refused to answer a question, and the interview lasted only twenty to thirty minutes.
U.S. v. Kennedy, 81 F.Supp.2d 1103 (D. Kan. 2000).

"For purposes of determining if a suspect is in custody, as would require Miranda warnings, the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation. However, Miranda warnings are not required prior to routine questioning when officers have no details concerning what happened when they arrive on the scene. Section 2:6.)

"Statements taken during legal custody are inadmissible if they were the product of coercion, if Miranda warnings were not given, or if there was a violation of the rule of Edwards v. Arizona, concerning the right to have counsel present during custodial interrogation. Two requirements must be met before Miranda is applicable: the suspect must be in 'custody,' and the questioning must meet the legal definition of 'interrogation.' Therefore, it was held in U.S. v. Miles [82 F.Supp.2d 1201 (D. Kan. 1999)], a person is 'in custody' for the purposes of Miranda if he has been deprived of his freedom of action in any significant way, or his freedom of action has been curtailed to a degree associated with a formal arrest." (Section 2:6.)

"A factor in determining if a suspect was in custody, for Miranda purposes, that looks to whether the suspect possessed unrestrained freedom of movement during the questioning focuses on any restraint on a suspect's freedom of movement during questioning. While suspects are often escorted or chaperoned during questioning for reasons unrelated to custody such as a concern for officer safety, the relevant inquiry is the effect on the suspect. However, physical restraint of a suspect alone does not invoke a suspect's Miranda rights. Yet, custody may be found even though no strong-arm tactics are used during questioning of a suspect. For purposes of deciding whether suspect was in custody when interrogated, and thus entitled to protections under Miranda, some considerations in determining whether the atmosphere of interrogation is dominated by police are whether the police assume control of the interrogation site, whether police dictate the course of conduct followed by the suspect, and whether other persons are present at the scene. Applying these principles in Evans v. Rogerson [ 77F.Supp.2d 1014 (S.D. Iowa 1999)], defendant was in custody when he was interrogated by law enforcement officers in his home, even though officers informed him that he was not under arrest, where officer chaperoned defendant as he checked his mail and had defendant leave bathroom door open as he used facilities, without informing defendant that safety concerns dictated such precautions, defendant asked permission to use his own telephone, officers initiated interview by asking him to agree to questioning, officer gave misleading advice in telling defendant that he would not get into trouble by signing waiver form, officer returned to topic of investigation after defendant, who had invoked right to silence, initiated conversation on personal matters, and officers controlled situation despite being in defendant's home." (Section 2:6.)

An individual is "in custody" at the point a reasonable person would feel that he was not free to terminate the interrogation. Bains v. Cambra, 204 F.3d 964 (9th Cir. 2000) (Targeted questioning, during which officers interrogating defendant lied to him about whether alleged accomplice had made statements incriminating him, was not custodial interrogation sufficient to trigger Miranda requirements solely by virtue of occurring at police station to which defendant voluntarily accompanied officers for purposes of questioning).

"The term 'interrogation' encompasses not only express questioning but also any words or actions on the part of the police, other than those normally attendant to arrest and custody, that the police should know are reasonably likely to elicit an incriminating response from the suspect." (Section 2:6.) U.S. v. Li, 206 F.3d 78 (1st Cir. 2000).

A waiver of Miranda may occur, although defendant was illegally arrested. Bradley v. Nagle, 212 F.3d 559 (11th Cir. 2000).

Miranda may not in effect be overruled by an Act of Congress. Dickerson v. U.S., 120 S.Ct. 2326 (2000).

"The fact that an individual is a suspect in a criminal case is not relevant to the issue of whether he is 'in custody' for Miranda purposes, as long as the police do not convey to the individual that he is a suspect. However, the fact that interrogation of a suspect occurred at the police station is not dispositive of the issue of whether the suspect was 'in custody;' some suspects are free to come and go until the police decide to make an arrest." (Section 2:7.)

The privilege against self-incrimination attaches either when a person is legally compelled to testify, or during custodial interrogation, where the compulsion comes from the custodial environment. U.S. v. Hunerlach, 197F.3d 1059 (11th Cir. 1999).

"For Miranda purposes, an individual is 'in custody at the point a reasonable person would feel that he was not free to terminate the interrogation. (Section 2:7.)

Opinion on Miranda: (1) When the Miranda warning is required, but not given, the police will usually lie about the facts, so that the court will rule that no Miranda warning was required (the courts nearly always believe the police lies), and (2) the best thing to do when confronted by the police is to assert one's 5th Amendment right to remain silent, whether or not Miranda is given. People have the right to remain silent, even if an interrogation without Miranda is "lawful." Of course this is only opinion and not meant to be legal advice.



IRS is not an agency of the United States government
The Real Truth of the Matter

"The real truth of the matter is, as you and I know that a financial element in the large centers has owned the government of the U.S. since the days of Andrew Jackson."

Franklin D. Roosevelt, U.S. President, in a letter written Nov. 21, 1933 to Colonel E. Mandell House.
The Internal Revenue Service is not an agency of the United States government. It is true that not only can it NOT be found in Title 31, but it is nowhere to be found in the entirety of Title 5 U.S.C.

Congress THOUGHT it created it but it didn't. Just look at the 1100 manual and it tells you so. Congress only created the Commissioner's Office. He then hired the private collection agency people and used them as the tax collectors. In fact, I defy you to find any IRS employee listed as an Employee of the United States Government with a United States Employee Identification number that has been hired by any District Director in the country. Now I suggest you look at 27 Code of Federal Regulations Section 250.11 and therein you will find the definition of "Revenue agent." That definition reads "Any duly authorized Commonwealth Internal Revenue Agent of the Department of the Treasury of Puerto Rico."

I now refer you to the "Secretary" described in 26 U.S.C. 6301. Does it not state, "The Secretary shall collect the taxes imposed by the internal revenue laws?" Yes it does. Now Congress mandated this by 68A Stat 775 and you cannot disagree. Does not 26 U.S.C. state that this "Secretary" may make a return based on the information he has if a person does not make a return? Yes it does. Does not 26 U.S.C. 6001, 6011 and 6012 refer to this "Secretary?" Yes it does.

Now, if the Revenue agent decides to prosecute, he approaches the Attorney General and this "Secretary" as noted in 26 USC 7401 to prosecute upon concurrence between both the Attorney General and this "Secretary," is this not correct? Yes it is and all the above is undisputable. Is it now contrary to any rational man that this "Secretary" can only be one person and not many?

Now, I direct your attention to 27 CFR 250.11 again for the definition of "Secretary" as found in all the above. The defining term for "Secretary" is, "The Secretary of the Treasury of Puerto Rico." That man is Manual Diaz Saldana. Those revenue agents operating in all the states are not United States employees. The Statute mandated to be at the end of each regulation by 1 Code of Federal Regulations (CFR) is 68A State 775 (26 USC 6301).

I now direct your attention to the House of Representatives, 39th Congress, 2nd Session, Ex. Doc. 99, titled Salary Tax Upon Clerks to Postmasters, LETTER from THE SECRETARY OF THE TREASURY dated Feb. 20, 1867, referred to the House Ways and Means committee and ordered to be printed. I am now going to prove that the IRS agents are not now nor were they ever employees of the United States. You can obtain the document faster than the man on the street. The postmaster wanted to know why postal clerks had to pay income taxes and why the IRS clerks did not have to. The "clerks" are today called "revenue agents." I quote part of the response that is not taken out of context concerning the IRS employees. Why should I, because it is verifiable by anyone.

"No money is advanced by the United States for the payment of such salaries, nor do the assessors perform the duties of disbursing agents of the United States in paying their clerks. The entire amount allowed is paid directly to the assessor, and he is not accountable to the United States for its payment to his clerks, for the reason he has paid them in advance, out of his own funds, and this is reimbursement to him of such amount as the department decides to be reasonable. No salary tax is therefore collected, or required by the Treasury Department to be accounted for, or paid, on account of payments to assessors' clerks, as the United States pays no such clerks nor has them in its employ or service, and they do not come within the provisions of existing laws imposing such a tax." This was signed by H. McCULLOCH Secretary of the Treasury.

Then to clarify it he included Section 165 which states that the only people to pay income taxes are, and I quote ". . . persons in the civil, military, naval, or other employment service of the United States, including senators and representatives and delegates in Congress,. .
Since the postal clerks are paid by the United States and the IRS agents were not, those revenue agents were just like me and the millions that do not work or contract with the United States. Therefore they were not subject to the income tax. And so it is today, and that explains why the private collection agency agents cannot be sued under 26 USC 7214 because they are not employees of the United States. Today they are based out of and under the direction of the Secretary of the Treasury of Puerto Rico, strictly to collect alcohol, tobacco, and firearms taxable activities.

The identity of the Secretary is not found in title 26 U.S.C. The only reference to the identity of the Secretary of the Treasury is in 27 C.F.R. at section 250.11 (definitions) which specifically states: "Secretary means Secretary of the Treasury of Puerto Rico".

Departamento De Hacienda Secretary of the Treasury Manuel Diaz Saldana
P.O. Box 4515
San Juan, Puerto Rico, 00902 1-787-721-2020

He's the head honcho. Also, you are usually dealing with an agent with a title of "Revenue Agent." The only definition of revenue agent is in 27 C.F.R. section 250.11 and is defined as: "Revenue Agent means any duly authorized Commonwealth Internal Revenue Agent of the Department of the Treasury of Puerto Rico."


When you send money to the IRS it first goes to a Federal Reserve Bank which is a quasi-government owned bank.

From there it goes into the International Bank for Reconstruction and Development into what they call a Quad Zero account with a drawback fund from which the IRS refunds are distributed. (Title 22 section 286 United States Code) (31 CFR chapter 11, section 214.7)
What is left is then transferred to the International Monetary Fund (United Nations Monetary and Financial Conference, July 22, 1944) this money is then loaned out to other countries around the world including the United States. They must then pay back these loans (with interest) to the Central Bankers, not the united States of America.


Lawyers and Attorneys Are Not Licensed To Practice Law
The LEGAL CRAFT -- Lawyer Deceptions!
By Ben Gates  August 03, 2006

The practice of Law is AN OCCUPATION OF COMMON RIGHT! (Sims v. Aherns, 271 S.W. 720 (1925))



1. like the Actors' Union, Painters' Union, etc.
2. No other association, EVEN DOCTORS, issue their own license. ALL ARE ISSUED BY THE STATE.
3. The State Bar is a NON-GOVERNMENTAL PRIVATE ASSOCIATION - and dues must be current to sustain membership.

The State Bar is; an unconstitutional Monopoly. AN ILLEGAL Et CRIMINAL ENTERPRISE; Violates Article 2, Section 1, Separation of Powers clause of the Constitution. There is NO POWER OR AUTHORITY for joining of Legislative, Judicial, or Executive within a state as the BAR is attempting. BAR members have invaded all branches of government and are attempting to control de jure government as agents of a foreign entity!

It is quite simple to see that a great fraud and conspiracy has been perpetrated on the people of America. The American Bar is an offshoot from London Lawyers' Guild and was established by people with invasive monopolistic goals in mind. In 1909 they incorporated this TRAITOROUS group in the state of Illinois and had the State Legislature (which was under the control of lawyers) pass an unconstitutional law that only members of this powerful union of lawyers, called the ABA, could practice law and hold all the key positions in law enforcement and the making of laws. At that time, Illinois became an outlaw state and for all practical purposes, they seceded from the United States of America.

The BAR ASSOCIATION then sent organizers to all the other states and explained to the lawyers there how much more profitable and secure it would be for them, as lawyers, to join this union and be protected by its bylaws and cannons. They issued to the lawyers in each state a charter from the Illinois organization. California joined in 1927 and a few reluctant states and their lawyers waited until the 1930's to join when the treasonous act became DE FACTO and the Citizen's became captives. Under this system, the lawyers could guarantee prejudged decisions for the privileged class against the lower class.

This was all made possible by the AMERICAN BAR ASSOCIATION to favor the right and have unlawfully substituted them in place of Constitutional Laws. The Constitution was written in plain English and the Statutes passed by Congress were also in plain English, with the intent of Congress how each law should be used and not the opinions of various Judges as the codes list. Any normal person can read the Constitution and Statutes and understand them without any trouble.

The public in California was shocked to learn that the State Government has no control or jurisdiction over the Bar Association or its members. The state does not accredit the law schools or hold Bar examinations. They do not issue state licenses to LAWYERS. The Bar Association accredits all the law schools, holds their private examinations and selects the students they will accept in their organization and issues them so-called license but keeps the fees for themselves. The Bar is the only one that can punish or disbar a Lawyer.

They also select the lawyers that they consider qualified for Judgeships and various other offices in the State. Only the Bar Association or their designated committees can remove any of these lawyers from public office. The State Legislature will not change this system as they are also a designated committee of the Bar.

On August 21, 1984, Rose Bird, Chief Justice of the California State Supreme Court, another of the Bar Associations Judicial Committee's, stated in essence that the Bar should determine the legality of all initiatives before they were allowed to go on the ballot. This is contrary to both State and Federal Constitutions, as well as the Laws of this Nation instituted By and For the People as a Sovereign UNITY of Independent States of We The People, not a fraudulent Corporate entity of Lawyers. This is a tremendous amount of power for a PRIVATE union that is incorporated and headquartered in Illinois to hold over the Citizens of California or any other state. The only recourse is through this initiative process and vote by the people.

After the Founding Fathers had formed the Constitution, outlining the laws as to the way our government was to be run, Thomas Jefferson said, in essence, "This proves that plain people, if given the chance, can enact laws and run a government as well as or better than royalty and the blue bloods of Europe." The American people must stop thinking that lawyers are better than they are and can do a better job than they can before the courts of America. Under the Common Law and the Laws of America, no where is it expressly given for anyone to have the power or the right to form a Corporation. Corporations are given birth because of ignorance on the part of the American people and are operating under implied consent and power which they have usurped and otherwise stolen from the people. By RIGHT AND LAW THEY HAVE NO POWER, AUTHORITY OR JURISDICTION, and must be put out of business by the good Citizens of America in their fight for FREEDOM

The U.S. Constitution GUARANTEES to every state in this union a REPUBLICAN FORM of government. Any other form of government is FORBIDDEN. No public officer or branch of government can be limited to a RULING CLASS of any kind, or the states become ARISTOCRACIES and NOT republics. Also, the lawyers have made themselves 1st Class Citizens, where many public offices and branches of government are open to lawyers only. All other people are limited to only two branches of government and to only certain offices in those two branches of government, making all people who are non-lawyers into 2nd class subject citizens.

When the courts belong to the people, as the United States Constitution REQUIRES, (Article IV, Section 4, we the people, will NEVER rule against themselves.) In these unconstitutional courts foreign tribunals (hoodlum centers), "men" in black dresses, that are unconstitutional ROBES OF NOBILITY. (Article 1, Section 9 and 10) dispense a perverted ideology, where the people are terrorized by members of the BLACK ROBE CULT (lawyers and lawyer judges in the courtrooms).

The legislative branch of government does NOT have the Constitutional Power to issue Court Orders or any other kind of Orders to people, as a fiction court or a court/corporation for profit and gain cannot reach parity with a lawful man. ONLY presidents and governors have the Constitutional Power to grant PARDONS, but lawyers and lawyer-judges are unconstitutionally granting PARDONS with "immunity from prosecution." Citizens are not permitted to act like people in the courts. The Citizen (2nd class) is told that he does not know how to fill out fancy lawyer forms; that he is not trained in the law; that he does not know court rules and procedures; etc. This is unconstitutional "lawyer system" only HEARSAY SUBSTITUTES (lawyers) NOT under oath, have access to the fiction/for profit and gain courts, even though ONLY sworn testimony and evidence can be presented in court. Anything else is Bill of Attainder, NOT permitted under the U.S. Constitution Article 1, Sections 9 and 10. The U.S. Constitution does NOT give anyone the right to a lawyer or the right to counsel, or the right to any other HEARSAY SUBSTITUTE. The 6th Amendment is very SPECIFIC, that the accused ONLY has the right to the ASSISTANCE of counsel and this ASSISTANCE of counsel CAN BE ANYONE THE ACCUSED CHOOSES WITHOUT LIMITATION.

LAWYERS and LAWYER-JUDGES: Created unconstitutional "lawyer system" pre-trial "motions" and "Hearings" to have eternal EXTORTIONISTIC litigation's, which is BARRATRY and also is in violation of the U.S. Constitution, and Article 1, as this places defendants in DOUBLE JEOPARDY a hundred times over. Defendants only have a right to A TRIAL, NOT TRIALS.

When a criminal is freed on a TECHNICALITY, HE IS FREED BECAUSE OF A FIX and a PAY-OFF, as a defendant can only be freed if found innocent BY A JURY NOT BY ANY "TECHNICALITY." Whenever a lawyer is involved in a case directly or indirectly, as a litigant or assisting in counsel, ALL LAWYER-JUDGES HAVE TO DISQUALIFY THEMSELVES, AS THERE CANNOT BE A CONSTITUTIONAL TRIAL and also there would be a violation of the conflict of interest laws, along with the violation of separation of powers and checks and balances, because "OFFICERS" OF THE COURT ARE ON BOTH SIDES OF THE BENCH. These same LAWYER-JUDGES are awarding or approving LAWYER FEES, directly and indirectly, amounting to BILLIONS OF DOLLARS annually, all in violation of conflict of interest laws. As long as there are lawyers, there will never be any law, constitution or justice. There will only be MOB RULE, RULE BY A MOB OF LAWYERS.


When a lawyer-judge instructs, directs, or gives orders to a jury, the lawyer-judge is TAMPERING WITH THE JURY. He also tampers with testimony when he orders the answers to be either "Yes" or "No." The lawyer-judge also tampers, fixes, and rigs the trial when he orders anything stricken from the record, or when he "rules" certain evidence and the truth to be inadmissible. This makes the trial and transcript FIXED and RIGGED, because the jury does not hear the REAL TRUTH and ALL THE FACTS. Juries are made into puppets by the lawyers and lawyer-judges. All lawyers are automatically in the judicial branch of government, as they have the unconstitutional TITLE OF NOBILITY (Article 1, Section 9 and 10), "Officer of the court." Citizens have to be elected or hired to be in any branch of government but non-lawyer Citizens are limited to only 2 of the 3 branches of government. Lawyers as 1st class citizens can be hired or elected to any of the three branches of government. Lawyers, "Officers of the Court," in the Judicial Branch, are unconstitutionally in 2 branches of government AT THE SAME TIME whenever they are hired or elected to the executive or legislative branches. This is a violation of the separation of powers, checks and balances, and the conflict of interest laws.

District attorneys and State's attorneys have taken over the Grand Juries FROM the people, where the people are DENIED ACCESS to the grand juries when they attempt to present evidence of crimes committed in the courtrooms by the lawyers and lawyer-judges. The U.S. Constitution, being the Supreme Fundamental Law, is not and CANNOT be ambiguous as to be interpreted, or it would be a worthless piece of paper (as recently stated by President Bush), and we would have millions of interpretations (unconstitutional amendments) instead of the few we have now. That is why all judges and public servants are SWORN TO SUPPORT the U.S. Constitution, NOT interpret it.

Under INTERNATIONAL ORDERS: ALL LAWYERS, whether they left law school yesterday or 50 years ago, are EXACTLY THE SAME. All lawyers have to file the same motions and follow the same procedures in using the same unconstitutional "lawyer system". In probate, the lawyers place themselves in everyone's will and estate. When there are minor children as heirs, the lawyer-judges appoint a lawyer (a child molesting Fagin) for EACH CHILD and, at times, the lawyer fees EXCEED the total amount of the estate. An OUTRAGEOUS amount of TAX "MONEY" is directly and indirectly STOLEN BY LAWYERS. Money that is budgeted to County Boards, School Boards and other local and federal agencies eventually finds its way into the pockets of lawyers, as ALL of these agencies are "TRICKED" and "FORCED" into ETERNAL EXTORTIONISTIC LITIGATION.



Texas Ruling Still Good Law
Texas Ruling Still Good Law: No Oath, Decision Void
The oath of office issue has been labeled a technicality by many and shoulders are shrugged, eyes rolled and deep sighs exuded when a litigant or defendant raises the issue if the judge or other public officer has taken and filed his or her oath, if he or she has the authority to sit on the case and if decisions are void if the judge has no oath or bond.

One of the biggest questions surrounding the oath issue is if rulings are void or deemed de facto if a judge has failed to take and file the Constitutional oath.

No oath, no office in Texas and rulings are void if the judge hasn't taken the oath, according to a 1999 Court of Appeals ruling which is still good law.

In the case of George W. Greer in Florida, who claims to be the Pinellas County probate court judge, public records clearly indicate that he failed to qualify for office as mandated by Florida Statutes by not properly executing his oath of office. As a matter of law, Greer vacated the office he claimed 30 days after the beginning of his term. He lacked legal jurisdiction in every case he's handled since he's claimed office in 1992. His judgments are void particularly the death sentence he handed down to disabled Terri Schindler Schiavo.
The issue becomes even more complex in the case of retired visiting judges who aren't elected and acquire their assignments, rotating among courts, by appointment of the Chief Justice.

Such is the case in Ohio with retiring visiting judge Richard Markus in the free speech case of Elsebeth Baumgartner, facing 109 years in state prison for having exercised her First Amendment right to make public criticism of public officers, including Markus. The matter of Markus is further exacerbated by his ownership of a private judicial service and in essence, his double dipping---collecting private fees for judicial services while at the same time collecting a public salary while utilizing state resources for his private business.

According to public records, retired visiting judge Richard Markus, appointed by Chief Justice Thomas Moyer, allegedly has not taken or filed his constitutional oath of office or filed the requisite bond. Therefore all actions he has undertaken against Elsebeth Baumgartner while acting as a retiring visiting judge, and in fact all cases adjudicated, would appear to be null and void.

Even appointed retired visiting judges have to file an oath of office, the Texas Court of Appeals has ruled, and if they have not done so, all acts and decisions rendered are indeed void.

Unfortunately, decisions in the Texas Court of Appeals aren't binding in Ohio or other states but the principles and applicable statutes are generally the same.
"Without the taking of the oath prescribed by the Constitution of this State, one cannot become either a de jure or de facto judge, and his acts as such are void."

That was the unanimous 3-0 decision rendered in May, 1999 by the Texas Court of Appeals in Prieto Bail Bonds v. the State of Texas and although there have been several challenges to the decision and there is some negative history to the finding, it hasn't been overturned and is still good law.

In fact, the State of Texas asked for a rehearing on the decision and was overruled in 1999.

The case involved the revocation of a bail bond for a defendant who failed to appear for a court proceeding and the judge revoked the bond which had been issued by Prieto. However, Prieto sued, saying that the judge lacked authority to order the bond forfeiture because as a retired appointed visiting judge, he had failed to take his oath of office.

The Texas high court agreed with Prieto and reversed the judge's order.

The decision ruled that judges have to take and file their Constitutional oath of office at the beginning of each and every term and that even after retiring, if judges are appointed to serve as senior judges or in other appointed judicial duties, they are deemed public officers and are required to take and file their Constitutional oaths. No oath, no office and all acts which the imposter judge engaged in during the term in which he acted without having taken the oath were ruled void.
After the criminal defendant failed to appear in court in the Texas case, the presiding judge of the 34th District Court in El Paso County entered judgment forfeiting the $40,000 bail bond. Prieto, the bondsman, appealed the decision. The Court of Appeals initially affirmed the judge's ruling but the Court of Criminal Appeals vacated the ruling and sent it back for reconsideration. Thereafter, the Court of Appeals in an opinion rendered by Judge Larsen, (994 SW 2d 316) held that the senior judge who had signed the judgment was required as an appointed official to take the Constitutional oath and because the judgment was invalid, the application the judge had made for bail forfeiture was supported. The Court reversed the lower court's decision of bail forfeiture.
The appeals court held that according to the Texas State Constitution, retired judges who exercise statutory election to become judicial officers are nevertheless "appointed" to a position of availability by the presiding judge who determined the retired judge's eligibility for service. Thus the retired judge who, as senior judge, signed the judgment ordering the bail forfeiture was not excused from taking the oath that is required of "appointed officers".
The Court found that a senior judge, who held no true permanent office and was merely assigned to various courts from time to time, nevertheless qualified as public "officer" by virtue of his being trusted with independent and sovereign powers, and thus, senior judge, who signed judgment nisi, was not excused from taking oath required of "appointed officers."
"An individual is a public 'officer' within meaning of constitutional provision requiring oaths of appointed officers, if any sovereign function of the government is conferred upon that individual to be exercised for the benefit of the public largely independent of the control of others; public officer is one who is authorized by law to independently exercise functions of either an executive, legislative, or judicial character according to the Texas Constitution, Art. 16, Section 1. Therefore, the court held, that senior judges, as retired visiting judges, must take the oaths of office required of appointed officers under the Texas Constitution.

Oaths of office that the senior judge previously took while serving as district judge and justice of the court of appeals did not survive expired terms of office and satisfy his current constitutional obligation to take oaths, the unanimous appeals court decision held. Those oaths taken previously while the judge had served as a district judge and justice of the court of appeals were incomplete as a matter of law and thus, even if such oaths somehow survived his expired terms of office, they did not satisfy the judge's current constitutional obligation while sitting on the case involving Prieto, where earlier oaths did not include the "anti-bribery" oath then required in Texas, much like the loyalty oath required in Florida.

Because Judge Jerry Woodward, acting as a senior judge, was required to take the constitutional oaths, but did not do so, all judicial actions taken by him, including signing of the judgment nisi in regard to the bond, were without authority, and the state's application for bail bond forfeiture, which depended on judgment nisi issued by Woodward, was unsupported.

In its first point of error, Prieto contended that athe judgment of forfeiture was invalid because the judgment nisi, a procedural prerequisite to the forfeiture, was defective as the judge who signed it failed to take an oath of office. The Court of Appeals initially affirmed the trial court's judgment by holding that the presiding judge was a de facto judge acting under color of title and the only means to challenge his authority was by quo warranto proceeding.

The court of Criminal Appeals, however reversed the ruling and remanded the case for analysis.
Woodard was District Judge of the 34th District Court of El Paso County for 17 years, from 1969 until 1986. He was justice on the Eighth Court of Appeals from 1986 until April 1992. In 1992, he retired and requested assignment as a senior judge pursuant to the Texas Government Code. Judge Woodard took his last oath of office as a judge when he became justice of the appellate court in 1986; that term of office expired upon his retirement in 1992. He had not taken the oaths required by the Texas Constitution since that time.

The Texas Constitution requires that all elected and appointed officers of the State, before taking the oath of office, shall swear or affirm that they have not paid or promised any money or thing of value or promised public office or employment to secure votes or an appointment (the "anti-bribery oath"). This oath must be filed with the Secretary of State before swearing or affirming to the oath of office, in which the officer swears to faithfully execute his or her duties and preserve, protect, and defend the Constitutions of the United States and of Texas.

Pursuant to the Texas Government Code, the presiding judge of the sixth administrative judicial region appointed Judge Woodard to preside over the West Texas Impact Court No. 1. Judge Woodard met all statutory requirements for the appointment. No statute explicitly requires that judges appointed under Section 74 take an oath of office before being assigned to cases as visiting judges.
Prieto contended that, when presiding over this case, Judge Woodard sat as a senior judge without taking the two oaths of office required by the Texas Constitution. Thus, having failed to fulfill the constitutional prerequisites to holding office, his judicial actions were void or voidable, including his signing of the judgment nisi forfeiting the bond in question.

The state made several arguments as to why a senior judge need not take the constitutional oaths upon electing that status. First, the state contended that Judge Woodard was not an officer subject to the oath requirement because he was not 'appointed' to the position of senior judge, nor did he "hold office" as a senior judge. He therefore was not an "appointed officer" required to take an oath under Article 16, Section 1 of the Texas Constitution. In the alternative, the state argued that the oaths Judge Woodard took as a Justice of the Eighth Court of Appeals and as a District Judge satisfied the constitutional requirements.

"Having found that senior judges are 'appointed' and are 'officers,' the appellate court concluded that they must take the oaths required of appointed officers when taking status as a senior judge subject to assignment. We recognize that the position of senior judge does not fit neatly within the traditional notion of an 'appointed officer.' We are hard pressed, however, to hold that one with authority to preside over litigation and adjudicate the interests of the litigants in a courtroom in the State of Texas should, or can, be exempt from taking an oath to preserve, protect, and defend the Constitution and laws of the United States and of the State of Texas", the court ruled.

"The State contends, in the alternative, that the oaths Judge Woodard took as District Judge and Justice of the Eighth Court of Appeals satisfy the constitutional requirements. The State offers no authority in support of this contention and we do not find the argument persuasive. Elected judges must take a new oath with each new term: we can see no logic whereby a senior judge's oath would survive an expired term of office, while that taken by a judge successfully seeking re-election would not. In any event, we find that Judge Woodard's prior oaths were incomplete as a matter of law. Judge Woodard's earlier oaths of office, which were taken in 1986 and before, did not include the 'anti-bribery' oath. This oath was added to the Texas Constitution only in 1989. It was required in 1992 when Judge Woodard took senior status and in 1993 when he entered the judgment nisi in question. Accordingly, even if Judge Woodard's previous oaths continued to bless his status as a senior judge, they did not meet the constitution's requirements at the time he presided over this case.

Because Judge Woodard was required to take the constitutional oaths, but did not do so, all judicial actions taken by him in the case below were without authority, the court held. The Judgment Nisi therefore is without authority. Actions taken by judge who failed to meet all requisites for qualification as retired judge subject to assignment held null and void  "Because Prieto Bail Bonds raised its complaint about Judge Woodard's qualifications at the trial level, as required  we need not reach the question of whether his actions in this case were done wholly without authority, and thus are void, or were simply procedurally infirm, and therefore merely voidable. Under either analysis, we must reverse. But we feel bound to observe that the Court of Criminal Appeals has held in a similar situation, involving an "alternative" municipal judge who had never taken the oaths of office, that: "without the taking of the oath prescribed by the Constitution of this State, one cannot become either a de jure or de facto judge, and his acts as such are void."
© 2006 North Country Gazette
Ed. Note: see also:
Texas Attorney General's Opinion jc/RQ0555JC.pdf


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