1 CAUSE NO. 95-63

2 WILLIAM B. JONES X IN THE DISTRICT COURT
3 vs. X VAN ZANDT COUNTY, TX
4 UDO BIRNBAUM X 294TH JUDICIAL DISTRICT

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11 STATEMENT OF FACTS

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13 APPEARANCES:

14 Mr. Richard L. Ray
Attorney at Law
15 300 S. Hwy. 19
Canton, Tx 75103
16 FOR THE PLAINTIFF

17 Mr. Udo Birnbaum
Rt. 1 Box 295
18 Eustace, Tx 75124
PRO SE
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21 On this the 22nd day of July, A. D., 1997,

22 the above and foregoing cause came on to be heard

23 before the Court.*, HONORABLE PAT MCDOWELL, Judge

24 Presiding, and the following proceedings were held
 

25 to-wit: C 0(y Py

I THE COURT: The case I'm here on is
2 Jones versus Birnbaum. I'm sorry, I don't
3 know either of the two parties.
4 MR. RAY: I represent Mr. Jones.
5 THE COURT: You are Mr. Birnbaum. I
6 have never met you before.
7 Let me call this formally. This is
8 95-63, Jones versus Birnbaum. This is a
9 motion to recuse Judge Wallace.
10 Mr. Birnbaum, I think I have read your
11 motion. I got some correspondence which I
12 just opened today.
13 Mr. Ray, have you seen it?
14 MR. RAY: Judge, I haven't seen
15 anything recently on the case. I think
16 Judge Wallace has recused -- he wishes to.
17 THE COURT: This is directed towards
18 Judge Zimmerman.
19 MR. BIRNBAUM: Your Honor, I object. I
20 object to these proceedings.
21 THE COURT: All right. Go ahead, make
22 your objection.
23 MR. BIRNBAUM: The motion has been
24 superseded long ago by my notification of
25 official oppression and of both in this

BECKY K. MALONE
OFFICIAL COURT REPORTER
294TH JUDICIAL DISTRICT COURT

1 Court and your office.
2 THE COURT:, Mr. Birnbaum, I note your
3 objection. I overrule it.
4 Now, I am trying to -- I think you are
5 correct, Mr. Ray. I think it was directed
6 towards Judge Zimmerman.
7 Is that, in fact, is your motion
8 directed towards Judge Zimmerman, the most
9 recent motion you filed?
10 MR. BIRNBAUM: Let me -- I don't have
11 the original. You have all the originals in
12 front of you.
13 THE COURT: Let me keep looking. Go
14 ahead.
15 MR. BIRNBAUM: Did you find the motion
16 for recusal7
17 THE COURT: I've got one from date June
18 10, 1996.
19 MR. BIRNBAUM: 1996?
20 THE COURT: Yes, sir.
21 MR. BIRNBAUM: Yes, I believe. Let me
22 see if I can find that. All I have is a
23 working copy here, right.
24 THE COURT: I just want to make sure I
25 have the right one in front of me. Here's

BECKY K. MALONE
OFFICIAL COURT REPORTER
294TH JUDICIAL DISTRICT COURT

I one dated August 15th.
2 MR. BIRNBAUM: August 15th, 195, let's
3 refer to that one.
4 THE COURT: Well, at any rate -
5 MR. BIRNBAUM: Which one do you want to
6 refer to?
7 THE COURT: Whatever is before the
8 Court. I'm trying to figure out which judge
9 you are after frankly. I'm not laughing at
10 you, I'm laughing
11 MR. BIRNBAUM: Which of my documents do
12 you wish to address?
13 THE COURT: You have a motion?
14 MR. BIRNBAUM: I have a motion to Judge
15 Zimmerman. I have a motion to Judge
16 Wallace.
17 THE COURT: Why don't we hear them both
18 at the same time. Why don't you tell me
19 what it is Judge Zimmerman or Judge Wallace

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21 MR. BIRNBAUM: Your Honor, I don't have
22 all my documents in front of you. If you
23 would refer what the question is, I will try
24 to answer it.
25 THE COURT: I want to know what it is

BECKY K. MALONE
OFFICIAL COURT REPORTER
294TH JUDICIAL DISTRICT COURT

1 about this conduct that you think makes them
2 subject to recusal?
3 MR. BIRNBAUM: Your Honor, my motion
4 and petition, I don't know what the question
5 is. I have all these things before the
6 Court for three years and I don't know what
7 the problem is.
8 THE COURT: I don't either,
9 Mr. Birnbaum.
10 MR. BIRNBAUM: Which one of these do
11 you have a question about?
12 THE COURT: What I'm asking is, I would
13 like to hear what your basis is for alleging
14 Judge Zimmerman or Judge Wallace ought to be
15 recused from these cases?
16 MR. BIRNBAUM: No, sir. Let me repeat
17 my statement. My statement is the objection
18 to these proceedings for recusals have been
19 long superseded by my notification of
20 official oppression and of both of their
21 courts and at your office.
22 I'm objecting to your proceeding.
23 THE COURT: All right. And I overruled
24 that motion a few moments ago. So we are
25 back to square one. I still need to know

BECKY K. MALONE
OFFICIAL COURT REPORTER
294TH JUDICIAL DISTRICT COURT

1 what it is Judge Wallace and Judge Zimmerman
2 did to -
3 MR. BIRNBAUM: Your Honor, I object to
4 these proceedings on the ground of official
5 oppression.
6 THE COURT: By who, Mr. Birnbaum?
7 MR. BIRNBAUM: I plead duress by
8 official oppression at this hearing.
9 THE COURT: At this hearing. okay.
10 Mr. Birnbaum, I will give you one more
11 chance.
12 MR. BIRNBAUM: I will pardon that. I
13 plead duress by official oppression. I take
14 that back. That was a slip of tongue.
15 THE COURT: By whom are you being
16 oppressed?
17 MR. BIRNBAUM: By those things that I
18 presented before the Court.
19 THE COURT: Mr. Birnbaum, I understand
20 what you are saying. Mr. Ray, you want to
21 jump in here and shed any light on this for
22 us?
23 MR. RAY: Judge, my recollection is
24 this is a case that Judge Wallace recused
25 himself and Judge Zimmerman has been

BECKY K. MALONE
OFFICIAL COURT REPORTER
294TH JUDICIAL DISTRICT COURT
1 assigned.
2 As a matter of fact, we appeared at a
3 couple of different hearings and Judge
4 Zimmerman had ordered the case to mediation;
5 and at the setting on mediation,
6 Mr. Birnbaum did not appear.
7 1 think Richard Davis was appointed as
8 mediator at that time. And then it was
9 recently reset, Your Honor. I think it was
10 reset really on the motions of Mr. Birnbaum.
11 And I believe the motion for recusal that
12 would bring your presence today, Judge,
13 would be the one filed June 18th, 1996,
14 which is a motion for recusal and
15 disqualification.
16 THE COURT: Judge Zimmerman?
17 MR. RAY: At least that's the way Judge
18 Zimmerman -- and at that time, I didn't have
19 a copy. Periodically, Mr. Birnbaum sends me
20 copies.
21 MR. BIRNBAUM: I object to that
22 interpretation.
23 THE COURT: Give me yours and I will
24 listen. I'm looking at the docket sheet,
25 Mr. Birnbaum, which is the best thing judges

BECKY K. MALONE
OFFICIAL COURT REPORTER
294TH JUDICIAL DISTRICT COURT

1 go by.
2 It looks like on April 21st, this year,
3 1997, and I recognize Judge Zimmerman's
4 signature, almost as bad as mine. Motion to
5 recus.e, notice and refer to regional
6 administrative judge. I'm the regional
7 administrative judge.
8 The motion is directed towards Judge
9 Zimmerman and I do find that in the file.
10 MR. BIRNBAUM: Have you looked at the
11 document you have in front of you?
12 THE COURT: Which particular document,
13 the one directed towards Judge Zimmerman?
14 MR. BIRNBAUM: The one you got in your
15 envelope, I believe.
16 THE COURT: That is some more, that's
17 an objection. That's the same objection
18 you've been stating?
19 MR. BIRNBAUM: No, sir.
20 THE COURT: It's not? How is it
21 different, Mr. Birnbaum?
22 MR. BIRNBAUM: It's a different one.
23 It has a different date. It raises
24 different issues.
25 The last one was -- which one are you

BECKY K. MALONE
OFFICIAL COURT REPORTER
294TH JUDICIAL DISTRICT COURT

1 referring to that I have before you?
2 THE COURT: I've got something dated
3 July 27, 1997, says objection to the
4 diversionary proceedings and -
5 MR. BIRNBAUM: That is the most recent
6 one. That is my objection.
7 THE COURT: All right. That's not a
8 recusal. That's a different matter.
9 MR. BIRNBAUM: That is my objection.
10 THE COURT: I denied that.
11 MR. BIRNBAUM: That is my objection to
12 the proceedings on the recusal at this time.
13 THE COURT: Mr. Birnbaum, I have given
14 you three or four chances for you to give me
15 grounds. I haven't heard any. I'm going to
16 deny any motion
17 MR. BIRNBAUM: I object. I pleaded, I
18 have pleaded official duress by official
19 oppression.
20 THE COURT: That is not a ground for
21 recusal, sir.
22 MR. BIRNBAUM: The matter before the
23 Court has nothing to do with recusal.
24 THE COURT: I understand what your
25 position is. I just don't agree with you.

BECKY K. MALONE
OFFICIAL COURT REPORTER
294TH JUDICIAL DISTRICT COURT

1 MR. BIRNBAUM: I withstand from any
2 further comments.
3 THE COURT: The motion for recusal is
4 denied. I will sign it. Mr. Birnbaum, good
5 luck to you.
6 This case is in recess.
7 MR. RAY: Judge, do I need to send an
8 order?
9 THE COURT: I will enter an order.
10 Mr. Birnbaum, I will enter an order on this.
11 It.will not be a very fancy one but it will
12 be done.

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14 (Proceedings concluded.)

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BECKY K. MALONE
OFFICIAL COURT REPORTER
294TH JUDICIAL DISTRICT COURT

2 COUNTY OF VAN ZANDT X
3 1, BECKY K. MALONE, Official Court Reporter in
4 and for the 294th Judicial District Court, County of
5 Van Zandt, State of Texas, do hereby certify that the
6 foregoing 10 pages constitute a full, true and
7 correct transcript, in question and answer form, of
8 all evidence admitted and proceedings had in the trial
9 of the above and foregoing numbered cause, together
10 with exhibits introduced and admitted into evidence
11 of the STATEMENT OF FACTS.
12 1 FURTHER CERTIFY that the foregoing STATEMENT
13 OF FACTS contains all objections to the admission
14 or exclusion of evidence, the rulings of the Court
15 thereon, and the evidence in connection therewith,
16 to the best of my skill and ability.

17 GIVEN UNDER MY HAND AND SEAL OF OFFICE, this
18 the 1st day of March, A. D.,1999.
19
20 L LL~L=6
BECKY K' MALONE, CSR
21 OFFICIAL COURT REPORTER
P. 0. BOX 1707
22 QUITMAN, TEXAS 75783
(903)763-2332
23 CERTIFICATE NO. 2564
EXPIRES: 12/31/99
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BECKY K. MALONE
OFFICIAL COURT REPORTER
294TH JUDICIAL DISTRICT COURT