Friday, May 25, 2012

District Judge Jaclanel McFarland Advocates Anti-Gay Bias Intolerance | EmPac Texas

Advocating an intolerance of homosexuality, that gay people are inherently evil, Judge Jaclanel McFarland reminds Harris County that today’s black robes of justice are not that far removed from yesterday’s white sheets of hate.

This is an EmPac Texas article reprinted with permission.  Due to storage limitations, you should link over to the EmPac Texas site to read the article and be able to view the documents linked throughout.

Most of the time a judgment from a court is just that, the court’s opinion on the merits. However, occasionally a court’s judgment stems from an extrajudicial source and results in an opinion on the merits on some basis other than what the judge learned from his participation in the case1 – like publicly advocating a position of intolerance of homosexuals and a position that gays are inherently evil and not on an equal footing with “normal” Christians. Enter Judge Jaclanel McFarland.

Before getting into Judge McFarland’s issues, you’ll need a little background. This past July, two guys in a domestic partnership filed an expunction matter that was assigned to the 133rd District Court. These guys learned from a September 28, 2011, letter from the District Attorney (“DA”) that their criminal history records maintained by Texas DPS had been criminally tampered with by ADA Rachael Palmer and ADA Julie Klibert with the Harris County District Attorney’s Office. The DA was now a material witness in the matter and the two petitioners filed a motion to disqualify the DA. This motion was followed by an amended petition filed in late November 2011 which included a collateral attack on the underlying preceding and finally alternative pleadings filed on March 9, 2012.

The expunction matter was set for hearing on April 9, 2011, at 3:00 P.M. The petitioners discovered shortly before the hearing that Judge McFarland publicly advocates an intolerance against individuals in same-sex relationships. Judge McFarland expressed her opinions on family, religion and church membership from the bench for nearly forty (40) minutes before calling the first hearing on the afternoon docket on April 9, 2012. The petitioners quickly recognized that this was probably the last court before which a domestic partnership ever wanted to appear.

Judge McFarland has publicly advocated a position of intolerance of homosexuals and taken the position that gays are inherently evil and not on an equal footing with “normal” Christians demonstrating a clear judicial bias. Judge McFarland has been an active member of the Baptist General Convention of Texas2 (“BGCT”) for a number of years including serving as the BGCT’s First Vice President for two terms. She has worked tirelessly for years advocating the BGCT’s core beliefs which singles out only one group of individuals to which it is intolerant; homosexuals.3 She has advocated that “[t]he homosexual lifestyle is not normal or acceptable…”4

Judge McFarland was noted by a former President of the BGCT as “one of the impressive young leaders in Baptist life” with a “good grasp of…Baptist Principles.”5 She is noted as making impressive contributions to the BGCT and when asked about her vision on the BGCT’s direction stated:

“I have seen Texas Baptist history, both personally and from studying the writings of our Texas Baptist forebears. We must not lose sight of our heritage. Even as we look to the future and take risks, we can learn from our Baptist ancestors. They valued what we value – the priesthood of the believer, a regenerate membership, the autonomy of the church, a free church in a free world, missions and evangelism. I have teen-aged sons. I want them to live in the Baptist world with the freedom I’ve enjoyed.”6(emphasis in original).

This last sentence of this statement evidences a judicial bias and at its minimum, demonstrates that Judge McFarland is predisposed to rule based on a belief structure that deprives gays of a wide variety of rights.

While serving as First Vice President of the BGCT, the executive board of the BGCT issued a recommendation that further financial contributions from a member church that had ordained a homosexual as a deacon be declined. The board also asked the church to remove the convention’s name from its website and other materials. It was the opinion of the board that homosexuals were not on an equal footing with other Christians and that the BGCT must draw a line “when they are elected to leadership position[s].”7 (emphasis added). In fact, there is no other “sin” which can cost a member church its association with the BGCT except that of homosexuality.

It was specifically because of her adherence to these beliefs that the BGCT twice seated Judge McFarland on the Baylor University Board of Regents which also holds that a homosexual lifestyle represents understandings of sexuality that are contrary to biblical teachings, Baptist beliefs and Baylor’s Christian mission.8

Judge Jaclanel McFarland has espoused the core beliefs of the BGCT in every leadership role she has accepted from the BGCT, assuming her positions after swearing to act in every decision so as to foster those same beliefs. Additionally, she has served on the executive committee of Texas Baptists Committed, an organization principled on the denial of homosexuals of a wide variety of rights enjoyed by “normal” Christians. By accepting and serving in these leadership roles, the Court has publicly acknowledged her ascension to the core belief that “[t]he homosexual lifestyle is not normal or acceptable in God’s sight and is indeed called sin.”9 Such a belief demonstrates an intolerance not of just the “sin”, but of the individual. It demonstrates a belief that simply being gay is inherently evil. And when weighted against the Court’s stated desire to shape a world to fits her beliefs, announces a pre-disposed bias that denies the Petitioners due process and equal access to the courts.

The Hearing

On April 9, 2012, the Court called the hearing on expunction from docket. The petitioners were denied a hearing on their motion to disqualify the DA. No argument or discussion was allowed on the motion. Judge McFarland made it clear that she had not seen or read the motion but nevertheless, denied it on the record. The Petitioners attempted to obtain a ruling on another preliminary matter but were interrupted and thereafter, Judge McFarland would not allow any further argument from the petitioners. McFarland also prohibited the petitioners from even discussing the expunction matter or arguing their petition for expunction and prohibited them the opportunity to introduce evidence in support of their petition.

Judge Jaclanel McFarland

The petitioners were denied a fair hearing because they are gay. Judge McFarland ran roughshod over the petitioners because her “conscience” told her to do so and because she believed that the gay couple standing before her bench were lesser persons not deserving of the rights and dignity due “normal” Christians.

Judicial responsibility is for the regularity of the law, not the regularity of pedigrees.

The Final Orders

The final orders signed by Judge McFarland in the instant case demonstrate a moral disapproval of homosexuality as a consideration when the rights of gay people hang in the balance. Judge McFarland issued two final judgments, each stating, “[a]ll other relief, not specifically granted herein, is denied.” Given that there can be only one final judgment for the purposes of appeal,10 the petitioners are left without an appealable order. Further, to be final, a judgment rendered after a proceeding that is other than a “conventional trial on the merits” must actually and explicitly dispose of all claims and parties, or must state “with unmistakable clarity that it is a final judgment as to all claims and all parties.”11 The “unmistakable clarity” standard is satisfied by a statement that “this judgment finally disposes of all parties and all claims and is appealable.”12

Neither of these judgments offer the Petitioners the unmistakable clarity of finality.
Judge McFarland styles each order separately and incorrectly. The case styles referenced by these orders do not exist. This was a deliberate obfuscation as both Judge McFarland’s order setting hearing and her order denying findings of fact and conclusions at law13 demonstrate the Judge McFarland’s familiarity with the proper style of the matter. Further, by deliberately misrepresenting the nature of the hearing, not as an evidentiary hearing but one based only on the pleadings, Judge McFarland finds purchase in exercising her ability to deny any requests for findings of facts and conclusions of law.

Additionally, both Final Orders incorrectly rely entirely on the records of the County Criminal Court at Law 8 of Harris County.  The orders recite that the trial court determined “that all procedural and substantive requirements for expunction of criminal records regarding Cause No. 1464186 have not been met.”14 (emphasis in original). Based solely on this determination Judge McFarland rules by taking judicial notice of the records of some other domestic court and does so without reference to an evidentiary hearing. While those records were obviously available to the trial court–it based its ruling on them, satisfying itself that the petition’s claims were meritless–the Court apparently ruled entirely on the basis of its judicial notice of another court’s records.

Before courts can take judicial notice of facts, those facts cannot be seriously subject to debate and must be easily ascertainable.15 Judicial records from a domestic court other than the court being asked to take judicial notice, have not been deemed so easily ascertainable that no proof is required; they are to be established by introducing into evidence authenticated or certified copies, respectively, of those records.16 No such records were introduced. Because the trial court’s ruling rested necessarily on its taking judicial notice of unspecified court records from another court, dispensing with an evidentiary hearing would be in error. Moreover, the courts of appeals ordinarily presume that records not made a part of the appellate record support the trial court’s decision.17 But, because the trial court’s judgment was rendered without properly taken judicial notice and without reference to an evidentiary hearing, they are in error.

Both final orders would attempt to mislead the appellate courts that there was no evidentiary hearing. The hearing on April 9, 2012, was, in fact, an evidentiary hearing. These two Final Orders do nothing more than provided an authoritative cover for judicial bias and outright judicial homophobia. They do nothing more than serve Judge McFarland’s well-publicized advocacy of disabling gays of a wide variety of rights based on her belief that homosexuals are inherently evil and not to be placed on an equal footing with “normal” Christians.

Judge McFarland has intentionally obfuscated the appellate path in her effort to shape a “Baptist world.”

The ADA’s, Court Staff, District Clerk Staff and Post Trial Motions

ADA Brian Rose represented the DA’s office in this matter and to even the most casual courtroom observer it was obvious that he and Judge McFarland had engaged in ex parte communication. What was also obvious is that even with the advantage of a bias judge and ex parte communication, Rose mislead the Court regarding the TRO in the 129th District Court and specifically regarding his communications with the petitioners. As it happens, the petitioners recorded every single meeting, telephone conversation, conference room discussion and casual encounter with ADA Brian Rose, Evelyn Palmer, Darla Turner, Julie Klibert, Betsy Wall and others. All of these conversations will be posted here as soon as the transcriptions are finished.
Here is a list of the post trial motions that have been filed in this matter:
Request for Findings of Fact and Conclusions of Law;
Petitioners’ Joint Motion for New Trial
Petitioners Joint Motion for Judge to Disqualify or Recuse.


McFarland departs from the statutory scheme of Chapter 55 which is specifically about the expunction of arrest records. In this departure, Judge McFarland has vested the DA with authority never intended by the Legislature giving the DA the ability to wrongfully charge and arrest an individual for any number of crimes, stack them within a particular cause number, abandon those charges and then forever prohibit the defendants from expunging the wrongful arrests by incorrectly allowing the cause number in the criminal matter to control in matters of expunction.  Under McFarland’s scheme, the DA has new powers with which to brow beat defendants into submission to the will of the State least they be labeled for life with any number of wrongful arrests for heinous and depraved acts.  This is a complete departure from the Legislative intent expressed in Chapter 55 of the Tex.C.Crim.P. which sought to curtail procecutorial authority by providing relief from wrongful arrests and as such makes McFarland’s attempt at judicial activism plain.

  1. Kemp v. State, 846 S.W.2d 289, 306 (Tex. Crim. App. 1992); see also Quinn v. State, 958 S.W.2d 395, 402-03 (Tex. Crim. App. 1997); Chandler v. Chandler, 991 S.W.2d 367, 385-86 (Tex. App.-El Paso 1999, pet. denied), cert. denied, 529 U.S. 1054, 120 S.Ct. 1557, 146 L.Ed.2d 462 (2000); Stafford, 948 S.W.2d at 924.
  2. The Baptist General Convention of Texas is the largest Baptist convention in the country with over 2.4 million members. (Church & Ministries, April 22, 2012)
  3. Reference material available in the public domain.
  4. Id.
  5. Id.
  6. Id.; see also Jaclanel McFarland: nominee for first vice president. by Mary Knox, The Baptist Committed.
  7. Id.; see also
  8. Id.; see also Baylor student disciplined for organizing gay-rights march. By Robert Marus, Associated Baptist Press. May 21, 2004
  9. Id.
  10. See Tex. R. Civ. P. 301
  11. City of Glenn Heights v. Sheffield Dev. Co., 61 S.W.3d 634, 641 (Tex. App.–Waco 2001, pet. for review filed Jan. 11, 2002) (Mother Hubbard clause indicated final judgment following partial bench trial and partial jury trial on the merits).
  12. Id. at 206 (emphasis added); see also Kleven v. Texas Dept. of Criminal Justice, 2002 WL 221071 (Tex. App.–Texarkana Feb. 14, 2002) (unpublished) (“This is a final judgment and disposes of all issues and parties in this case”).
  13. On its own, the denial of the Petitioner’s request for findings of facts and conclusions at law could be argued from any number of positions, but here when taken as part of the totality of the Court’s actions, Judge McFarland demonstrates a judicial bias, the purpose of which appears to be to mislead the Appellate Courts and thereby deny the petitioners due process and equal access to the courts.
  14. This cause number is referenced in the Final Order titled Ex Parte Gregory J. Montelaro, the Final Order titled Ex Parte Steven M. Dekker references Cause No. 1464187.
  15. Fender v. St. Louis Sw. Ry. Co., 513 S.W.2d 131, 135 (Tex. Civ. App.–Dallas 1974, writ ref’d n.r.e.); Levlon v. Dallas Ry. & Terminal Co., 117 S.W.2d 876, 878 (Tex. Civ. App.–Dallas 1938, writ ref’d).
  16. Fender, 513 S.W.2d at 135; Adams v. State Bd. of Ins., 319 S.W.2d 750, 754 (Tex. Civ. App.–Houston 1958, writ ref’d n.r.e.).
  17. See State v. Pierce, 816 S.W.2d 824, 831 (Tex. App.–Austin 1991, no writ).

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