Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 8/19/2015 2:24:46 PM JEFFREY D. KYLE Clerk Case No. 03-14-00665-CV THIRD COURT OF APPEALS 8/19/2015 2:24:46 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-14-00665-CV *1 ACCEPTED [6564923] CLERK ______________________________ IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT AUSTIN, TEXAS ______________________________ ERIC DRAKE Plaintiff - Appellant, vs.
KASTL LAW FIRM P.C., ET . AL . Defendants - Appellees . ______________________________ On Appeal from the 200th District Court, Travis County Case No. D-1-GN-14-001215 APPELLEE’S RESPONSE IN OPPOSITION TO APPELLANT’S
MOTION TO RECUSE
TO THE HONORABLE COURT OF APPEALS:
COMES NOW Seana Willing, Appellee herein, and files this Response in
Opposition to Appellant’s Motion to Recuse, which was filed by Appellant Eric
Drake (“Appellant”) on August 13, 2015, and would respectfully show this Court
the following:
I. PROCEDURAL BACKGROUND On April 7, 2015, this Court, having received briefing from parties, denied
oral argument and determined that this case would be decided on submission.
The case is set for submission on briefs on August 27, 2015.
On August 13, 2015, Appellant filed a motion to recuse three justices of this
Court.
This is a delaying tactic and the motion to recuse should be denied.
II. RESPONSE TO APPELLANT’S MOTION TO RECUSE “A party seeking recusal must satisfy a ‘high threshold’ before a judge must
be recused.” Ex parte Ellis , 275 S.W.3d 109, 115–17 (Tex.App.-Austin 2008), citing
Liteky v. United States , 510 U.S. 540, 558, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)
(Kennedy, J., concurring). The movant’s “burden is only satisfied when the movant
provides facts demonstrating the presence of bias or partiality ‘of such a nature and
extent as to deny the movant due process of law.’ ” Id ., at 117. (citations omitted).
Conclusory statements, conjecture, or mere assertions of bias will not satisfy
the burden or overcome the presumption of impartiality. Id .
Appellant’s Motion to Recuse is not based on any specific factual assertion of
a bias, only his unsupported conclusory statements, conjecture, and mere assertions
of bias.
For example, in attempting to recuse Chief Justice Rose, Appellant’s
reasoning consists solely of Appellant’s statement that he “does not believe” that
Chief Justice Rose can be unbiased in determining a legal matter, solely because
“[a]t one time he was an assistant Attorney General” and Appellant does not like
Assistant Attorneys General. (Motion to Recuse, ¶ 2).
Appellant’s reasoning related to Justice Goodwin is even more speculative, as
Appellant’s sole suggestion is that he “believes that it is reasonable that Justice
Goodwin have white friend judges…” (Motion to Recuse, ¶ 3).
Appellant also seeks recusal of Justice Puryear “because he at one time was
an assistant Attorney General.” (Motion to Recuse, ¶ 4). Justice Puryear is
apparently not on the panel of judges who would be determining this matter anyway.
None of these conclusory assertions support Appellant’s assertions of bias.
Rather, this motion to recuse, like his contemporaneous filing in which he
threatens litigation against the spouses, children, and other relatives of the Justices
(Appellant’s Response to the Court’s Inquiry Regarding Jurisdiction, filed August
*4 13, 2015, ¶ 4), is just another vexatious litigation tactic [1] employed by Appellant,
who also tried to recuse Justices of this Court with similar logic after his petition for
mandamus was denied. See In re Drake , Cause No. 03-14-00583-CV, in the Third
Court of Appeals of Texas. (Motion filed September 26, 2014 and denied on
October 14, 2014).
Because there is no basis in fact or law for Appellant’s Motion for Recusal,
that motion should be denied.
Respectfully submitted, KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General JAMES E. DAVIS Deputy Attorney General for Defense Litigation ANGELA V. COLMENERO Chief–General Litigation Division /s/ Scot M. Graydon Scot M. Graydon Assistant Attorney General State Bar No. 24002175 *5 Office of the Attorney General P.O. Box 12548 Austin, Texas 78711-2548 (512) 463-2120 (512) 320-0667 - facsimile ATTORNEYS FOR APPELLEE SEANA WILLING CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was
sent via regular mail and certified mail, return receipt requested on August 19, 2015
to:
Eric Drake
PO Box 833688
Richardson, Texas 75083
Pro Se Appellant
/s/ Scot M. Graydon Scot M. Graydon Assistant Attorney General
[1] One week before Appellant filed these documents, in an unpublished opinion, the United States Court of Appeals for the Fifth Circuit upheld the federal equivalent of a vexatious litigant finding, “pre-filing sanctions based on Drake's abusive filing history…” See Drake v. Navstar Intern. Corp., Cause No. No. 14–51240, 2015 WL 4646361 *2 (5th Cir. - August 6, 2015)(Emphasis added).