Transcript of DuPuy hearing
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Transcript of Transcript of DuPuy hearing
1
REPORTER'S RECORD VOLUME 1 OF 1 VOLUMES
TRIAL COURT CAUSE NO. 09CV1183
MR. MARGARITA, L.P. ) IN THE DISTRICT COURT )
vs. ) GALVESTON COUNTY, TEXAS )
DUPUY & ASSOCIATES, ET AL ) 405TH JUDICIAL DISTRICT
_____________________________________________
HEARING ON MOTIONS _____________________________________________
On the 26th day of January, 2012, the following
proceedings came on to be held in the above-titled and
numbered cause before the Honorable Elizabeth Ray, Judge
Presiding, held in Galveston, Galveston County, Texas.
Proceedings reported by computerized stenotype
machine.
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APPEARANCES
Mr. David Bryant SBOT No. 00785730 Ms. Jessica Juren SBOT No. 24058577 5020 Montrose Blvd., 7th Floor Houston, Texas 77006 Telephone: 832-487-0880 Attorney for Plaintiff
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VOLUME 1
HEARING ON MOTIONS
January 26, 2012
PAGE VOL.
Greg Hughes Direct Cross V.Dire By Mr. Bryant 14 v1 Reporter's Certificate 25 1 ...........................
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INDEX OF EXHIBITS
Use is indicated as follows:
J - Jury R - Record Only D - Demonstrative EXHIBIT DESCRIPTION OFFERED ADMITTED USE
P-1 8 v1 8 v1 RRegister of Actions, Case No. 09-CV-1183
P-2 8 v1 8 v1 RDefendant's Notice
P-3 9 v1 9 v1 ROrder Setting Deposition and Rule 11 Agreement
P-4 9 v1 9 v1 REmergency Motion to Stay Proceedings Pending Mandamus
P-5 10 v1 11 v1 RLetter from Kathleen Collins
P-6 11 v1 11 v1 RLetter from David Bryant
P-7 12 v1 12 v1 RRelevant Timeline
P-8 13 v1 13 v1 RSecond Motion to Recuse and Disqualify Judge Shearn Smith
P-9 20 v1 20 v1 ROrder Denying Defendant's Requestion for a Stay of Proceedings
P-10 20 v1 20 v1 RMemorandum Opinion
P-11 21 v1 21 v1 RPetition for Writ of Mandamus
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January 26, 2012
THE COURT: This is Cause No. 09CV1183,
Mr. Margarita L.P. Vs. Dupuy & Associates, and this is
on a Motion to Recuse and Motion for Sanctions. So
would you please announce who is here and who is not.
MR. BRYANT: Thank you, Your Honor. My
name is David Bryant, and I'm here on behalf of the
plaintiff, Mr. Margarita. I have Jessica Juren here who
is also an attorney with my office. We are present.
The defendant and the movant is not.
THE COURT: And are the people in the
courtroom witnesses or --
MR. BRYANT: Greg Hughes is an attorney
here in Galveston. I might ask him a couple questions.
But Julie Hatcher is also an attorney here in town. I
don't think -- she is just here to listen, I think.
THE COURT: Well, you may or may not
know -- I don't know if you do or not -- but apparently
the court received a letter today from Rachel Morales
saying that the office is withdrawing and passing the
hearing. Well, of course, they cannot pass the hearing.
The hearing is set as a result of the Motion to Recuse
and it's set by the court. That's not an option. The
withdrawal, of course, is not in front of me because
that would be, depending on the ruling on the Motion to
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Recuse, that would be in front of the regular judge. So
I can't rule on that.
For the record purposes, the Motion to
Pass the Hearing is denied, and that puts the Motion to
Recuse -- what I believe to be the Second Motion to
Recuse -- although I believe they filed it as an Amended
Motion to Recuse -- that puts that at play; and since
there is no one here to promote that motion, that motion
is hereby denied.
That leaves, I believe, in front of me
your Motion for Sanctions.
MR. BRYANT: Yes, Judge.
THE COURT: Do you have any objection to
how I just proceeded?
MR. BRYANT: Not at all.
THE COURT: Because of the fact the other
side is not here, there is no lodged objection to the
way that I have proceeded, so we will now take up your
Motion for Sanctions.
MR. BRYANT: Thank you very much, Judge.
I don't know if the court reporter has a
few exhibit stickers? If the court doesn't mind, I will
hand number my exhibits. I didn't know how it was going
to go today.
What I have done, Your Honor, is I have
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pulled from the record a few documents that I think
exemplify the sort of conduct that we have been dealing
with in this case from Day One. I have here as
Exhibit 1 that I'd offer into evidence, and Exhibit 1 is
basically a printout -- may I approach, Your Honor?
THE COURT: Sure.
MR. BRYANT: I will tender to the court
Exhibit 1. That is a printout from the records of this
case from the publicly available docket sheet indicating
the various documents that have been filed, motions, et
cetera. And I've highlighted for the court's
information some various items indicative of the delay
tactics and frivolity of the defendant's motions and the
things that they have tried to do for the sole purpose
of avoiding a single deposition. I have been
attempting, Judge -- as I know you know because you read
the whole file -- I have been trying to get a deposition
of our defendant, a lawyer and now sitting judge in this
county, for over eight months and every time I attempt
to get that deposition, whether it's by court order,
agreement or otherwise, I am met with something else.
I'm met with a Motion to Quash. I'm met with a, quote,
"notice."
I'll mark this as Exhibit 2. There was
a -- I'll offer Exhibit 1, Your Honor.
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THE COURT: Exhibit 1 is admitted.
MR. BRYANT: Exhibit 2, Your Honor, is a
document that was filed by the defendants on August the
29th on the eve of the deposition that was ordered in
this case for September the 1st of 2011. It says,
"Defendant's notice that plaintiff's pleadings are
stricken per court order and notice that dismissal is
now purely ministerial." This document was filed
because the defendant had a dispute about whether my
pleadings had been amended properly in response to a
special exceptions. That document was filed. I got a
letter on a fax saying that they are not going to appear
at the deposition, so we come back to court.
I'll mark Exhibit 3. Exhibit 3 -- I would
offer Exhibit 2, Your Honor.
THE COURT: Exhibit 2 is admitted.
MR. BRYANT: Exhibit 3 is actually two
documents. The first page is the order setting the
deposition of Christopher Dupuy. This was a hearing
held on September the 16th, 2011, as a result of the
failure to appear for his deposition the second time,
wherein the court orders that the deposition of
Christopher Dupuy is to take place on the 6th of
October, 2011, at 10:00 a.m. And then we have a Rule 11
agreement where the defendant agreed to pay $1,830 for
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attorney's fees and expenses in preparing the Motion for
Deposition and Motion to Compel as a result of the
defendant's failure to appear for two depositions
ordered by the court.
I would offer Exhibit 3.
THE COURT: Exhibit 3 is admitted.
MR. BRYANT: That document clearly
indicates, Your Honor, that the court for the second
time has ordered a deposition -- actually, the third
time -- second time, excuse me, has ordered the
deposition of the defendant; and on the morning of or
the afternoon before -- the morning of the October the
6th deposition, I get Exhibit 4 which is an Emergency
Motion to Stay Proceedings Pending Mandamus.
And I'd offer Exhibit 4.
THE COURT: Exhibit 4 is admitted.
MR. BRYANT: I also received at the same
time, Judge -- I think I probably have it here -- there
is a letter from Ms. Collins, who is the counsel for the
defendant, and in that letter she indicates that her
client will not be appearing at the deposition because
of the fact that they have filed -- here we go. This is
exhibit -- well, I'll just show the court this. If we
need to make it an exhibit, we will. It's actually part
of a larger set of exhibits that I had for my Motion to
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Compel, etc.
And in this letter she indicates that her
client is being released to serve the citizens of
Galveston County and, in other words, she is not going
to have her client appear for the deposition that was
clearly ordered by the court because she believes that
the mandamus stays the proceeding. It clearly did not.
I sent her back a letter saying that
that's going to be a problem. And I'm going to go
ahead, and if we could, just get a copy of this. I
apologize, Judge, for having this out of order, but I'm
going to say this is Exhibit 5 and the next letter is
Exhibit 6. And we will make a copy of this, if we
could, Judge. I will tender it to the court and I will
offer it into evidence pending a copy, if we can do
that.
THE COURT: Sure.
MR. BRYANT: Exhibit 5. That's the letter
I just showed you.
THE COURT: Okay.
MR. BRYANT: If we go to the next page,
Exhibit 6, this is the letter that I sent back to
Ms. Collins explaining to her that her mandamus
application did not stay the proceedings, that I intend
to seek sanctions. And at the very end you notice I say
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specifically I'm going to send my court reporter down
there. I don't want to come down there for no reason.
I'm going to send somebody to take a certificate of
nonappearance. I don't get a response to that.
I would offer Exhibit 6, also.
THE COURT: 5 and 6 are both admitted.
MR. BRYANT: I didn't get a response to
that letter. What she indicated to me was that her
client was going to be released. That morning of the
deposition I got a call from my court reporter saying
that the defendant is here, what do we do; he wants to
make a statement on the record. And so, as you might
imagine, I'm very upset about the fact that these games
are being played with myself and my client and my staff,
and so I basically indicate on the record that we
disagree with how this was happening and we are going to
seek sanctions, etc. So I filed a Motion for Sanctions.
And if you can imagine what's going to
happen at the deposition, Judge, based upon what's going
on in this case, I can't imagine a situation where the
defendant is going to answer my questions correctly,
properly, according to the rules. So I asked for the
appointment of a special master. I asked for fees, a
Motion to Compel, appointment of a special master, and I
set that hearing.
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In response -- what are we on, Exhibit 7?
I've got Exhibit 7 here which is actually a timeline,
Judge, that I took from the docket sheet. In response
to my Motion to Compel and for Sanctions that was set
for November the 8th, 2011, I show up at this courthouse
for a hearing and we receive a Motion to Recuse. We
don't receive a response, we receive a Motion to Recuse.
As you know, we appeared for the hearing
on that Motion to Recuse and the defendant failed to
show up. I filed a response. We were here. You denied
that motion. Then I filed a Motion to Show Authority.
By the way, Exhibit 7, I'll offer
Exhibit 7, which is the summary of the relevant events
in this case.
THE COURT: 7 is admitted.
MR. BRYANT: I also filed a Motion to Show
Authority because what the defendant in this case has
been doing, even though he's a sitting judge and is not
allowed to practice law by statute, he has been filing
documents, motions, signing with permission as if he is
acting on behalf of his counsel when, in fact, he's just
practicing law. So I filed a Motion to Show Authority
and asked for a standing order that each time he does
that, he has to pay a $500 fine, because I'm entitled to
know who the counsel is so I can communicate with him.
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Well, all these motions get set again, and
now we have this, Exhibit 8, which is the Second -- what
I call -- it's not a First Amended, it's a Second Motion
to Recuse because it states a different basis. This is
Exhibit 8. And I know the court has seen this, Exhibit
8. I'd offer it into evidence.
THE COURT: Exhibit 8 is admitted.
MR. BRYANT: The only difference in the
first motion and the second motion, Judge, is that Judge
Dupuy claims that he has filed a complaint against Judge
Smith with the judicial committee because he hasn't
acted however Judge Dupuy wants him to act. I don't
know what the basis of it is. I have never seen it. I
don't even know if it's really been filed. I have no
clue. So, fine, I filed my response and I asked for
sanctions because under Rule 18a if you determine that
these motions have been filed for the purpose of delay
and there is no substantial or significant cause for the
motions, you can grant sanctions under Rule 250.
I have Greg Hughes here, and I would like
to ask him a couple questions, if I could, Judge.
THE COURT: That's fine.
MR. BRYANT: I don't know if you want to
swear him or not. He's an officer of the court.
THE COURT: Do you mind?
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(Witness sworn)
MR. BRYANT: The purpose of this
testimony, Judge, is so -- I think you need to hear how
our defendant views recusals, because in this case he
has filed two frivolous Motions to Recuse, didn't show
up for either one of them. In the Mayville case, which
you have also been assigned to hear, in gathering
information about my client's case, I did some research
and found this case that was sealed so I filed my Motion
to Unseal the Record and on the day of the hearing,
Judge Trapp travels from Coldspring, Texas, all the way
down here only to receive another Motion to Recuse,
supposedly because he had spoken with the other attorney
or something and said, Well, you don't have to come to
some hearing, some kind of supposed ex parte
communication that would violate the ethical rules,
which he didn't. So you can see a pattern here, I
think. Now Mr. Hughes has a personal experience as well
that I wanted to share with the court.
GREG HUGHES,
having been first duly sworn, testified as follows:
DIRECT EXAMINATION
Q. (BY MR. BRYANT) Greg, you can tell the court a
little bit about your practice, what you do here in
Galveston or in Friendswood. I guess you're in
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Friendswood?
A. I practice in Friendswood. I have a general
practice, solo, primarily family law. I have been doing
that for about 21 years.
Q. Are you familiar with Judge Dupuy --
A. Yes.
Q. -- who is in County Court 3 here in Galveston
County?
A. Yes.
Q. How are you familiar with him?
A. Well, I first really got to know him, I had a
case that was in his court. I went to mediation, and
someone told me that the -- my opposing counsel was
dating him and I might want to look into a recusal.
Q. Who was that opposing counsel?
A. It's Kathleen Collins.
Q. That's the same lawyer that's representing
Judge Dupuy in this case, right?
A. I believe so.
Q. Okay. So what did you do? Did you --
A. Well, first, I spoke with Kathleen a little bit
on a break at the mediation. She asked me if I was
going to try to recuse him; and I said, Do I need to?
And she said, Well, we don't have a relationship. Okay.
So I went ahead with the mediation. I didn't think
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anything more about it. I heard later from other people
more persistent rumors and started looking into it and
believed that they probably did have a relationship. So
that case was set for hearing and I prepared a Motion to
Recuse but I got there first and told Kathleen, Look, I
want to go talk to the Judge about the recusal. She
said, You don't need to do that. He's already heard a
bunch of cases. He's already turned them down. He's
already told me he's not going to recuse himself
anymore.
Q. He told her that?
A. Told her that, yeah. I insisted that she come
back with me because I didn't want to talk to him
ex parte. It's actually the first time I'd ever spoken
to him. Finally she agreed to go. We went back in his
chambers; and I told him before I went on the record, I
asked him if he would like to recuse himself because we
perceived that there was a relationship between them.
He said, No, file your motion. So I went and filed my
motion, brought him a courtesy copy and waited in the
courtroom for a while. He came out for our hearing. He
announced that he read the motion, it had no basis in
law or fact or we were going to go forward with the
hearing. And then I reminded him that he couldn't do
anything after I filed the motion, and so he said fine.
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Q. Did he do something?
A. He --
Q. Did he enter any orders at that point?
A. No, he didn't enter an official order, but
Kathleen reminded him that the TRO in the case was
expiring that day and she wanted to renew it.
Q. The temporary orders on the child support?
A. Yes. He said, I will do that. I reminded him
that he could not do that, that he didn't have authority
to do that. He got very angry, started talking to my
client and told the client that the orders were expiring
that day, but he had better continue following them and
if he found out that he wasn't following them, that he
would have problems when he came back to his courtroom.
So we went on. Eventually I had the
recusal hearing in front of Judge Underwood; and in the
meantime, I had found Mr. Dupuy's ex-wife, Adrienne
Viterna, who was the first witness that was able to
specifically testify that he did have a relationship
with Kathleen because Kathleen had been picking their
children up from school. They had been -- she had been
keeping the children at her house. They were visiting
back and forth. I mean, they were, you know, buddies
everywhere, not just in the courtroom.
That was on a Thursday which was, I
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believe, August the 3rd. The next morning I get a call
from Judge Dupuy who is in San Antonio at the Advanced
Family Law Conference, and he's very angry. He
identifies himself.
Q. Do you know what day that was?
A. That was August 4th, 2011, at 11:58 a.m. I
wrote notes down as he called me. He identified
himself. He asked me how I had gotten his ex-wife to
testify.
Q. Did you recognize his voice?
A. Oh, absolutely. I told him that I had heard
his ex-wife knew information and I called her and
eventually subpoenaed her. He was very mad, told me it
was a very sleezy thing to do to get his ex-wife
involved and went on and on about how inappropriate it
was, what a sleezy attorney I was, one thing or another.
And then he wanted to know who had told me about his
ex-wife and who knew this information. And, of course,
I told him I didn't think those people would want me to
share that, so I didn't tell him that.
And then in closing, he told me that I was
a sleezy attorney and reminded me that I would have to
appear in his court again one day and that he would
remember me when I did. I very, very clearly took that
as a clear implication that he intended to punish me for
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filing the motion and involving his ex-wife. And since
the newspaper articles have come out about that, I have
heard from many, many other people similar stories.
Q. Have you filed a complaint with the judicial
committee?
A. I have.
Q. With the State Bar?
A. Yes. Actually, no, I don't think I have with
the State Bar, just with the judicial committee.
MR. BRYANT: I don't have anything further
from him. I wanted you to hear how this defendant views
recusals and his obligations under the law in the broad
scheme of things because I think what we have here is a
defendant who's never going to comply with anything this
court orders and the only way to make them comply is to
hit them in the pocketbook. It's the only thing we can
do. I don't think under National Tank I can ask you to
strike the pleadings. I don't think I ask you to strike
the pleadings. Maybe I can. But you might feel
uncomfortable doing that, and I don't want you to feel
uncomfortable.
I researched some of the case law you have
been involved with, and I know that you know all about
this. You know all about sanctions and how that works.
I'm asking for $7,500 which I don't think is too much to
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enforce the law in this courtroom, and so that's what
I'm asking for. I want you to see -- here is something
else that's very telling, very telling about the purpose
of this motion. And I think the court is very clear the
purpose of this motion is for the purpose of Judge
Dupuy's motions. I don't know if the court knows, but
there is another mandamus that was filed a couple days
ago in the First Court of Appeals. I have two more
exhibits.
THE COURT: Is it on this case?
MR. BRYANT: Yes, ma'am. I'm going to
mark Exhibit 9, 10 and 11. If I could, Judge, I would
like to show you, Exhibit 9 is an order from Judge
Shearn Smith dated October the 7th denying defendant's
request for a stay of proceedings. I'd offer Exhibit 9.
THE COURT: 9 is admitted.
MR. BRYANT: Here is -- and this is in
response to their first mandamus. In that mandamus,
Your Honor, they ask the Court of Appeals to force Judge
Smith to grant their summary judgment. Not to make a
ruling, to grant the summary judgment. They summarily
denied it, and here is the order, Exhibit 10. I would
offer it into evidence, dated October 28, 2011.
THE COURT: 10 is admitted.
MR. BRYANT: That very clearly indicates
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that the Court of Appeals, on its own motion, without
any response by myself or Judge Smith, denied that
motion. Now we have the defendant filing the Motion to
Recuse asking this court to prevent Judge Smith from
doing anything else in this case. Two days ago I
receive another mandamus. It's Exhibit 10, Your Honor.
I'll offer Exhibit 10 -- 11. Excuse me.
THE COURT: Admitted.
MR. BRYANT: Not only is that mandamus not
a proper mandamus because it has no official transcript
from this court or the district clerk, it's just merely
pages out of someone's file at their office, that
mandamus also seeks to have Judge Smith do something. I
don't think they can have it both ways. I think it
makes it very clear, Judge, that this Motion to Recuse,
the sole purpose of it is to delay the inevitable, which
is the deposition of Judge Dupuy.
Now, I think I've shown what I need to
show under Rule 18a. I have spent many hours dealing
with this case, Judge. In my motion I indicate that my
time dealing with just the recusal -- I'm not asking for
fees on the whole case, which maybe I should, and I will
at some point -- but I have -- and I'll represent to the
court as an officer of the court -- I don't know if you
need to swear me or not, Your Honor -- but I can tell
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you that I have spent at least 15 hours and my normal
hourly rate is $350 an hour. I have been practicing law
for 18 years. I have tried a lot of cases, and I think
that's a reasonable rate for me in this community and
that these services were necessary because of what's
been happening in this case. In order for me to get
compliance with the Rules of Procedure, I've had to go
through these hoops created solely by the defendant, not
created by me. That doesn't include the time -- and
that total would be $5,250. That does not include the
time of my associate lawyer, Jessica Juren, who is here
today. It doesn't include the time of my paralegal
which I normally bill at a hundred dollars an hour.
Ms. Juren, I normally bill at $200 an hour. So there is
a lot more time involved in this. I think my estimate
here is low.
Judge, I'm not getting paid for this case.
I told my client a long time ago, it's not fair for me
to charge him any more. He can't afford it. And based
upon how this case has been handled, I said, You know
what, I'm going to do this. I'm just going to do it.
But that doesn't mean I shouldn't get my fees for what I
have had to go through. Just so the court knows, my
client doesn't owe me this money, but I think the court
should sanction the defendant for what I have had to do
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and what my staff has had to do needlessly and in clear
violation of the rules.
THE COURT: Counsel, I have read your
motion. I don't have it in front of me -- or I do have
it in front of me, but you can tell me faster than I can
find it. Is the sanction that you have asked for -- is
the only sanction that you have asked for is the payment
of this $7,500?
MR. BRYANT: Yes. Your Honor, to you,
that's all I'm asking for. When I go back -- when this
case goes back to Judge Smith, I will be asking to reset
all those other motions where I'm asking for a lot more.
THE COURT: My recollection from our last
hearing was that you had not reset the deposition of
Judge Dupuy? You were --
MR. BRYANT: We are still trying to get
that. That was part of my motion that got reset in
response to which we received these Motions to Recuse.
THE COURT: The case had been -- my
recollection, the case had been moved to maybe a July
trial setting?
MR. BRYANT: That was an error. I don't
know how that happened, but it's been set to April.
THE COURT: April?
MR. BRYANT: Yes, ma'am. April the 16th,
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I think, is the docket call and then the 23rd. She
might know.
THE COURT: And the next hearing that's
set for this case for any matter, is there one set?
MR. BRYANT: There is not because this
stopped the works.
I have an order, Judge, if you care to
look at it. I would ask this court to enter the order
for sanctions jointly and severally against counsel and
the defendant because it's clear that either Ms. Collins
is allowing her client to use her bar number and sign
her name with permission or vice vera. I don't know
what they are doing. But they are both creating this
problem in the case, and I think it should be jointly
and severally.
THE COURT: Okay. The court grants your
motion.
MR. BRYANT: Thank you.
THE COURT: And awards $7,500 jointly and
severally against both Judge Dupuy and his counsel to
cover attorney's fees and costs.
This payment is to be made within 10 days
of this date, which I believe to be the 26th of January.
Am I right, or is it the 25th?
MR. BRYANT: The 26th.
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THE COURT: So 10 days from today with the
possibility of non-payment may result in, depending on
what Judge Smith decides to do, but it may result in a
complete striking of the pleadings and other appropriate
sanctions. So I put that on the record just to make
sure that the record is clear that this is an interim
step, but there could be more to come depending on Judge
Smith's rulings --
MR. BRYANT: Thank you very much.
THE COURT: -- for sanctions.
So I have signed that order. Again, the
Motion to Recuse is denied. The court considers that to
be a second motion, not an amended motion, and that
motion is hereby denied.
MR. BRYANT: Thank you very much.
THE COURT: You're welcome.
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26
STATE OF TEXAS
COUNTY OF GALVESTON
I, Tamra M. Parks, Deputy Official Court Reporter in
and for the 405th District Court of Galveston, State of
Texas, do hereby certify that the above and foregoing
contains a true and correct transcription of all
portions of evidence and other proceedings requested in
writing by counsel for the parties to be included in
this volume of the Reporter's Record in the above-styled
and numbered cause, all of which occurred in open court
or in chambers and were reported by me.
I further certify that this Reporter's Record of the
proceedings truly and correctly reflects the exhibits,
if any, offered by the respective parties.
I further certify that the total cost for the
preparation of this Reporter's Record is ________ and
was paid/will be paid by ___________________.
Tamra M. Parks, CSR Texas CSR 167 Deputy Official Court Reporter 405th District Court Galveston County, Texas 600 59th Street Galveston, Texas 77550 Telephone: 713-502-6833 Expiration: 12/31/2012
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