## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 18

- 00051

- CV

JERRY LAZA , Appellant

V. CITY OF PALESTINE, TEXAS , Appellee

On Appeal from the 349th District Court Anderson County, Texas Trial Court No. DCCV16

- 356

- 349

Before Morriss, C.J., Stevens and van Cleef , JJ.2 

### R E V I S E D O R D E R

P ending before this Court is the decision on the possib ility of sanction ing Jerry Laza’s attorney, Nicholas D. Mosser , for statements by Mosser while representing Laz a befo re t his
Court , statements that we have concluded transgress his obligation as an attorney to c onduct himself in a professional and ethical ma nn er
. While this Court does not take the matter of sanctions lightly, we cannot ignore the many disrespectfu l stat ements Mosser h as made to this
Court

— about this Court, the trial court, and the administrative judge

— that are without a ny basis in fact. Having considered all relevant pleadings, the Court finds that sanctions are appropriate and necessary.
I. B ackgroun d
In 2016, t h e City of P alestine sued Laza , alleging that Laza violated various c ity ordinances by improperly maintaining certain of his properties within the c ity and by unlawfully keeping junk, vehicles, equipment, and other unsi ghtly items on those pro perties

. The c ase
proc eeded to trial , and the trial court entered judgment in favor of the c ity in February 2018. On appeal, Laza was represented by Nicholas D. Mosser

. The clerk’s and reporter’s records were fi led in November 2020 . In a second motion for
extensio n of time in which to f ile his brief, Laza complai ned about an omission from the reporter’s record. On February 2, 2021, after Laza filed two additional motions for extension s of
time in which to file h is brief , this C ourt abated this appeal to the trial c o u rt pursuant to Rule
3 4.6 of the Texas Rules of A ppellate Procedure. See T EX

. R. A PP . P. 34.6(e), (f). Our order3

instructed the trial court to take evidence on, and enter findings with respect to, ea ch exhibit or portion of the record that was determine d to be lost or destroy ed. Pursuant to our order, the trial court held two evidentiary hearings , the first of which was
conducted on July 13, 2 02 1

. 1 After the first hearing, Mosser filed an emergenc y motion on August 26, 2021, seeking the trial court’s r ecusal. The motion c l aimed, among other things, that the trial judge “interjected himself into the facts of this case by personally conducting e x
- parte investigations, calling himself as witness, t estifying about his recollection of events , [and]
inte r r o g ating witnesses bas e d on his ex

- parte investigations.” The trial court declined to recuse and signed an order referring the motion to recuse t o the presi ding judge of the Tenth
Administrative Judic ial Region. On September 27, 2021, the pr esiding judg e o f the Tenth Administrative Judicial Region i ssued an order denying the emergency motion to recuse, finding
that “ t he movant did not file the motion as soon as practi cable after the movant knew th e grounds
stated in the motion.” Laza v. City of Palestin e , N o. 06

- 18

- 00051

- CV, 2022 WL 344 9819, at

* 17 (T ex. App.

— Texarkana Aug. 18, 2022, no pet. h.) (mem. op.)

. The trial court held a second evidentiary hearing in connection with the accuracy of the

re cord and , thereafter , submitted its findings r egarding the a p p ellate record in a report dated
Decemb e r 14, 2021. By separate order dated December 28, 2021, this Court adopted each of the trial court’s findings and its conclusion that there was no error or omission in the appellate record

1 On January 17, 2017 , the pres idin g jud g e of the First Administrativ e Judicial Region of Texas a ssign e d the Honorable Dwig ht Phif

er, s enior j udg e of the 2nd Judici al District Court, to the 349th Judicial District C ou rt of An d er s on Co unty, Texas, to hear cause number DCCV 16

- 356

- 349, Ci ty o f Pal e stine v. Jerry Laza

. On Jul y 13, 2021, the presiding ju dge o f the Tenth Administr ative J udici al Region assigned Judge Phif er to the Anderson Coun ty district court to the sam e cau se num be r , thi s time on abate ment by the order of this Court. The tria l cou r t did not sign any contested order p rior to the second order o f assig nment.4

that was sig nificant or t h a t would affect the resolution of th e ap p eal. The appellate record was completed and filed in this Court. Despite our December 28 order adopting the trial court’s findings and conclusion s , Moss er filed a motion to abate th e appeal to the t rial court o n J a nuary 14 , 2022 , complaining
about the r e cord a nd stating , “This Court accepts false statements of fact as conclusiv e, such as the trial court’s ‘finding’ that certain exhibits were in the r ecord, except had anyone actually looked, it would be clear the y w e re not .” We denied the motion to a bate. After the Court denied
the motion, Mosser attempted to file “Appellant’s EMERGENCY Supplemental Motion to
Abate” (Emergency Motion). Mosser design ated that document as an “Other Document,” rather

t han a motion , i n the statewide e

- filing system . B e cause t here was no motion pending before this
Court when Mosser attempted to file the Emer gency Motion , our clerk’s office deemed the document a motion, s ee T EX

. R. A PP

. P. 10.1(a), which requires the paym ent of a $10

. 0 0 filing
fee , s ee T EX

. R. A PP

. P

. ap p
. A, § B(3)(a). Accordingly, the clerk’s office attempted to file the
document as a motion, and the statewide e

- filing system attempted, unsuccessfully , to process the payment . As a result, the filing wa s rejected.
A. M o sser’s Conduct Leads to An Order o f Admon i shment
After our clerk’s office explained the reason for the rejected filing to Mosser, Mosser responded in an unprofessional and disrespectful man ner towards our clerk and deputy clerk s through a s eries of te l e p h o ne calls, emails, and letters. As a resu l t of those actions, among others, this Court issued an order admonishing Mosser to cease engaging in th at conduct. In our5

order, we out lined a few examples of Mosser’s “disrespectful behavior towar ds our cler k a n d
court staff in this case,” including the following :

• On December 6, 2021, Mosser made accusations regarding this Court’s responsibility for the May 2020 ransomware attack that affected not onl y this Court, but all appellate courts, the Texa s Court of C r i m i nal Appeals, and the Texas Supreme Court. He inappropriately suggested that someone from this office caused the statewide ransomware attack by watching “porn” on a state computer. Mosser als o used profanity while speaking with the clerk d uring this t e l e p hone convers a tion.

• In a different conversation on December 6, 2021, Mosser called this Court’s clerk’s office and asked to speak with the Court’s chief staff attorney. Mosser was advised by the clerk that, in accordance with Rule 9.6 of the Texas R u l e s of Appellate Procedure, all communi cations about a case must be made only through the clerk. See T EX

. R. A PP . P. 9.6. When Mosser disputed that stateme nt, the clerk read him the text of Rule 9.6. Nevertheless, Mosser emailed this Court’s chief staf f a t t orney direct l y on December 6

. Laz a v. City of Palestine , No. 06

- 18

- 00051

- CV, 2022 WL 258495, at * 3 (Tex. App.

— Texarkana Jan. 26, 2022, o rder)

. We fur ther recited that “Mosser penned a letter to the clerk in which he accused members
of ou r clerk’s o f

f ic e of inappro p riate behavior and acc used this Court of engaging in subterfuge by entering secret orders

. ” Id

. at *2 . Our order continued,
I n addition to his disrespectful, unprofessional, and inappropriate manner of communicating with our c lerk ’ s off i c e , Mosser ha s , in several fili n gs with this Court, im pugned the integrity of this Court; and, just as in Jabary [ v. McCollough , 325 F.D.R. 175 ( E.D. Tex . 2018, order)] , his attacks a re not suppo rted by facts or evidence. By way of example, in his Motio n t o A bate, Mosser state s , “[T]his Court has improperly s ea l ed matters concerning ex parte communications w ith witnesses in the Trial Court as to instructions on the exhibits in this case. See T EX

. R. C IV

. P . 76a.” Later in the same motion, Moss e r state s t h a t “this Court has improperly sealed matters without c om p liance with Rule 76 or 76a.” Mosser ’ s assert ions that this Court ha s sealed any records in this6

appeal [are] patently false, and the inferences of impropriety enveloped in his accu sation s are bas el e s s and unsupported by facts or evidence.
Id

. at *3 ( second alteration in orig inal)

. As a result of that conduct and other co nduct outlined in our order, this Court adm onished Mosser as follows:
1. The clerk ’ s office of this Court is the mou thpiece of t h i s Court, and Mosser is admonished to treat it as such

. Mosser is admonished not to use profanity in hi s verbal communications with the clerk of this Court or the deputy clerks of this Court and is admonished not to address the clerk of this Court, or th e d e puty clerks of this court, in a disrespectful, rude , o r hostile manner.
2. Mosser is admonished not t o engage in further vi olations of Rule 9.6 of the Texas Rules of Appellate Procedure.
3. Statements made to this Court, both in filings w ith this C ou r t a nd through representations made to this Court ’ s cle rk ’ s office, must be ba sed in fact, must have evid e ntiary support, and mu st be made without reckless disregard as to their truth or falsity. Mosser is admonished that unfounded, baseless a ttacks on th e i n tegrity of this Court or its staff will not be tole ra t ed.
Mosser is admon ished to heed these warning s and not to engage in similar conduct. He is further admonished that this Court continues to have the authority to take further action, n ot only as t o a n y future conduct, but also as to the conduct descri be d herein.
Id . at *4. Mosser did not heed our w a rning set forth in par agraph three of our admonishment
order

. B. Despite Admonishment, Mosser Continued to Engage in Sanctionable

Conduct
Followin g t h e issuance of our admonishment order, Mosser made san ct i onable statements
in his briefing filed with th i s Court. Among many inapp ropriate statements, Mosser made si x

statements that we find particularly s anctionable. Five statements , furthe r discusse d b e l o w , accused the a dministrative j udge and Judge Phife r o f committing “atroc ities” and accused Jud g e7

Phifer of “masquerading as a judge,” becoming “personally invested in the creation of a record,”

“ conducting ex parte investigation,” changing witness t es t i m o ny, suborning perjury, attempting
to influence the a d m inistrative j udge , and “manipulating tria l exhibits.” In a sixth st atement,
Mosse r accused this Court of unnecessarily expending judicial resources and making “ spurious ad hominin [sic] attacks o n ” h i m
. 2
II. Notice and Show Cause Order
As a result of t he se sanctionable statements , o n September 1 6, 2022, we issued a notic e and order to show cause to Mosser, commanding Mosser to show cause why he should not be sanctioned by this C ourt for such stat em e n t s
. In our notice and order, we commanded Mosser to

a pp ear on “Monday, October 31, 2022, at 11: 0 0 a.m. at the Court of Appe als, Sixth Ap pellate District, State of Texas, Bi

- State Justice Building , 100 N. State Line Ave., Texarkana, Texas
755 0 1 to show c a u s e why he should not be sanctioned by this Court for t he statements specified
in the Order of Se p tember 16, 2022.” Our orde r admonished Mosser that “ [f] ailure to attend the hearing [would] result in the imposition of just sanctions.” E ven t hough Mosser ha d a c tu al notice of the show cause hearing, he chose n ot to p ersonally appear.
III. Service and Actu a l Notice
The notice and or der to show c ause were delivered to the Collin County Sheriff on September 19, 2022 , and w ere returned unserved b y Collin County D e p ut y Sheriff Bryan Borton

2 Mosser also made the follo w in g unprofessional statements, which are no t addr essed in this order: ( 1) “Justi ce Morri ss failed to a ppreciate the law of Texas on where to file , how to file, and what to file th at creat es a case in the C ourt of Appeals , ” (2) Justice Morriss’ s “desire to re tain the case w ithout jurisdiction has bl in ded him to” the law, (3) J ust ice Mo rr iss m ade “erroneous co mments and [an] impassioned plea to re tain a ca s e that he has no jurisdictio n over,” (4) “ Anderson Co unty te n d s to lo se files, which suddenly re
- appear sp oradically during the process of trying t o get a complete record on a ppe al,” ( 5) the District Clerk an d Court of Appeals Clerk do not “know what a Do c ket Sheet is,” and (6) this Court’s opin ion distingui shing t h e cas es cite d by Mosser was “abs urd .”8

on September 29, 2022. On be ha lf of the Court, a private process serve r then attempted to personal ly serve the notice and order on Mosser on September 30, October 4, October 6,
October 7, October 8, and October 10

. I n an affi davit f iled with t hi s Court, the process server , Roger Bigony, PSC #5307 of Malone Process Service, LLC, stated that Mosser called him at approximately 4:00 p.m. on October 6 and asked if the service documents were stam pe d b y a judge. Accord ing to Bigony, Mosser called from a 2 14

- area code. Bigony was ultimately

un s u ccessful in his efforts to personally se rve Mosser with the notice and order to show cause.
On October 6, 2022, the c lerk of this Court e mailed Mosser t hi s C ourt’s o rder and n otice

to s how c ause. On Octobe r 21 , Mosser f iled a motion in this Court ca p tioned Verified Motion to R ecuse, Disqualify, and Transfer, asking that each of the three justices of this Court recuse or disqualify themselves from presi di n g over the show caus e hearing sched uled fo r Monday, O ct ob er 31

. Mosser sought recusal or disqual i fication because he claimed that t he justices of this Court made false allegations against him and could not “ be entrusted with presiding over this matter wi t h impartiality.” Mo sser attached t o his m otion a cop y of the c lerk’s October 6 email and letter notifying him to show cause

. 3 He further claimed that he gained knowledge of the order to show

cause when a Law360 reporter requested comment.

3 P ursu ant to the procedure set forth in Rule 1 6. 3(b), th e justices consi de red the m ot ion i n chambers and found no reason to recuse or disqualify them selve s and certified the matter to the remaini ng members of the Co u rt, e n banc. See T EX

. R. A PP

. P . 16.3(b); Man ges v. Guerra , 673 S.W.2d 180, 185 (Tex. 1 984); Mc Cullough v. Kitz ma n , 50 S.W .3 d 87, 88 (Tex. App.

— Waco 2 001, pet . denied) (per curiam) (or der) . Th e motion was denied as to eac h justice in separate ord ers. T h e tran sfer is sue was submitted t o the Texa s Su pre me Court. Th e Texas Supreme Court is su ed its or der on October 27 , 2 022, d en ying the request to transfer this matter from th is Court

.9

On Octobe r 2 8 , Mosser filed h is response to thi s Court ’s show cau se o rder, claiming that
his statements did n ot constitute a threat to th e admi nistration of justice, his speech was protected by the First Amendment to the United States Constitution, his statements w e r e f actual, there w as no seal affixed to the order, the s ho w cause order was insufficiently specif i c and thus violated due proc ess, t he Court failed to personally serve Mosser, this Court lacked jurisdiction, and the justices on this Court improperly fail e d t o recuse or disq ual ify. Mosser th en a tte mpted to ex pl ai n the alleged factual basis of each spe c ific statement set forth in the sh ow cause order. It is apparent that Mosser had actual notice of the show cause hearing on October 31 based on (1) his t e l e p h one conversatio n w ith the process server , (2) this Co ur t’s e

- service of the
notice and order t o show cause on October 6, (3 ) the request for comment from a Law360 reporter, (4) the filing of the motion to recuse , disqualify, and transfer, and (5) t h e fi l i n g of a
response to the show cause order

. R u le 15 .2 of the Texas Rules of Appellate Procedur e states: A party who appears in p erson or by attorney in an appellate court proceeding

-- or who has actual knowledge of the court’s opinion, judgme n t, or orde r re l a ted to a writ or p rocess
-- is bo u n d by th e o p in i on , judgment, or order to the same extent as i f personally served under 15 .1.
T EX

. R. A PP

. P . 15.2. In addition to having actual knowledge of this Court’s show c ause order, Mosser appeared i n t his proc eedi n g by virtue of his October 21 and October 28 fi l in gs in this
C ourt

. See T EX

. R. A PP

. P . 6.2. As a result, and in accorda nce w ith Rule 15.2, Mosser was bound by this Court’s show cause order to the same extent as if he had been personally s er ved
und er R u l e 15.1.10

I V
. Sh ow Cause Hearing
In Moss er’ s p l ac e, James C. Mosser appeared at the October 3 1 show cause hearing

. James C. Mosse r represented to the Court th at Mosser had actual knowledge of the hearing. He
further claimed that Mosser d i d not att end t h e hearing because h e lived in Mich igan. In o ur

or der , this Court warned Mosser that “ [f] ailure to attend t h e hearing [would] result in t he imposition of just sancti ons.” At the hearing, this Court advised James C. Mosser that Mos ser faile d t o a tten d the h earing at his peri l.
V. Authori ty and Due Pr o ce ss Requirements
As stated in our admonishment order ,

“ I t has long been understood tha t ‘[c]ertain implied powers m ust necessarily result to our Courts of justice from the nature of their in s ti tut ion, ’ pow e r s ‘which cannot be dispensed with in a Co urt , b e ca use they are necessary to the exercise of all others

. ’ ” Chambers v. NASCO, Inc

. , 501 U .S. 32, 43 (1991) (quoting U nited States v. Hudson , 1 1 U.S. 32, 34 (1812)). “For this reason, ‘[c]ourt s o f j usti ce ar e universally acknow ledged to be ve sted, b y t h ei r v ery creation, with power to impose silence, respect, a nd decorum, in their presence, a n d submission to their lawful mandates.’” Id

. (quoting Anderson v. Dunn , 19 U.S. 204, 227 (1821 )). “Te x as co urts , lik e all civilized cour ts of justice, have th ese in h er ent powers .” Kutch v. Del Mar College , 831 S.W.2d 5 0 6 , 509 (Tex. App.

— Corpus Christi 1 992, no pet.).
Laza , 2022 W L 258495, at * 4 (altera tions in original) . This means that , “ [ w ] hen an att o rn ey
enga ges i n misconduct before our court

. . . we ret ain th e i nherent power to discipline such
behavior when reaso n a

bly necessary to the extent deemed appropriate.” Johnson v . Johnson , 948 S.W.2d 835 , 8 4 0 (Tex. App.

— San Antonio 1997, writ denied) (cit i ng Ca mpos v. I n v
. Mgmt. Prop s. , In c
. , 917 S.W.2d 351, 35 8 ( T ex
. A pp.

— San Antonio 1996, writ denied) (Green, J.,

concu rr ing) (citing Pub

. Util. Comm ’ n of Tex

. v. Cofer , 754 S. W.2 d 121, 124 (T ex. 1988); Kutch11

v. Del Mar Coll

. , 831 S.W.2d 506, 509 (Tex. App.

— Co rpu s Ch risti 1 992, no writ) ). A s stated by the Texas Sup r em e C ourt, “Courts possess inherent power to discipline a n attorney’s
behavior.” Merrell Dow Pharm s. , Inc. v. Havner , 95 3 S.W.2d 706, 732 (Tex. 1 997) ( reh ’ g, order ) ; see Brewer v. Lennox Hearth P ro d s
. , LL C , 60 1 S.W.3d 704, 707 (T ex. 2020 ).
Al though we m ay as sess sanctions based on our inherent authority , we a r e required to provide notice to the affecte d party that we i ntend to do so to a llow the party to prepare a
defense. Greene v. Young , 174 S. W.3 d 29 1, 30 0 n. 4 (Tex. App

. — Hou ston [1st Dist. ] 2005, pe t

. d en ied) (citing Kutch , 831 S.W.2d at 511) ( “The traditi o n al Due Process protections of notice
and he aring are also n ecess ary before im position o f sanctions.”)

. We conclude that Mosser
received th ose due proc e s s protections as h e was afforded notice of t he he aring , had actual knowledge of this Court’s or d e r and of the hearing date , and was provided the opportunity to
attend t he hearing to mak e his defense. Our order pro vided the basis for the p r op ose d sa nctio n s based on this Cou rt’s inherent p ower an d d e sc r ib ed the sanctionable conduct by directly quotin g the statements the Court found sanctionable. And, although our order s et a deadline of M onday,
October 2 4, 2022 , in which to file a response t o the ord er, w e nevertheless filed Mosser’s

respo nse sub mit t ed to this Court on Friday, October 28 , 2022, at 5: 5 4 p.m. We have likewise considered the merits of Mosser’s response. In addition, sanc t ions must be just

. This mea ns that a sanction “must b e dir ecte d aga i n st
the abuse and t oward remedying the pr eju d ic e c aused the innocent party . It also means that t h e sanction should be visited on the offender.” Transamerican Nat

. G as Corp. v. Powell , 8 11
S.W.2d 913 , 917 (T ex
. 199 1) . Sanctions must also n ot be exc essiv e , that is, “ [ t ] he p unishment12

shoul d fit t he c ri m e. ” Id

. A court must therefore “consider the a v a ilability of less stringent
sanctions and whether such lesser sanct ions woul d fully prom o te compliance.” Id

. T his i s not the first time that Mo sse r ha s eng a g ed in less than ex emplary conduct before a

c ou r t

. A s we noted in our admonishment order, Speci f i cally, four years ago, Mosser was sanctioned by Judge Amos Mazzant, Presiding Judge of the United States Fe deral Cou rt for the E a stern Distric t o f Texas , She r m an Division. See Jabary

. . . . Laza , 2022 WL 2 5 8495, at * 2. In Jabary , the court listed every sanctionable statement in its order and explained why each statement was devoid o f factual su p por t. Aft er ha ving analyzed each such statement, the cou rt ob s e rv ed , Mosser makes such bold, dis respect ful, and i nappropriate comments with a complete and absolute lack of factual or e videntiary support. Mosser repea ted ly attempts to impose hi s view of h ow this ca se ha s proceeded, his perception of why the Cou rt ru l e d the way it did, and his own per sonal f rustrati o n s as evidence of how the Court allegedly acted inappropriately. Mosser ’s actions demonstrate the utmost di srespect. Jabary , 32 5 F .R.D. at 1 9 9 ( footnote omi tted)

. The co urt further observed that , a lt hou g h
M osser’s “ stateme nts were disres pectful and uns u p ported in fact, Mosser did not apologize for making the statements or even admit they were disrespectful .” Id

. at 200 (footnote om itted)

. T h e c ourt imposed “ a monetary sanction of $250 for each of th e t w e lv e [ sanctionable ]

statements ” at issue , reasoni n g that such amount was “appropriate to deter such conduct.” Id

. In addition, the court ordered Mosser to a ttend two Texas Bar Cont inu ing Leg a l E ducation class es on ethical courtro om behavior, as it be lie v e d that woul d “assi st in educating Mosse r on appropriate courtroom demeanor ” and that the classes would “ serve Mosser well going forward in the profession.” Id

.13

V I
. Sanction a ble C o nduct
We c o nsi der the Texas Rules of Professional Conduct in our eva lu ati o n o f Mosser’s

state ments. Among o ther t h i ngs, these rules state that “[a] lawyer shall not knowingly . . . make
a false statement of material fact or law to a tribunal.” T EX

. D ISC I PLINARY R U L ES OF P ROF ’ L
C ONDUCT R. 3.03(a)(1), re printed in T EX

. G OV ’ T C O D E A NN ., tit. 2 , sub tit. G, app. A. In

a d d ition, “[a] lawyer shall not make a statement that the lawyer kno ws to be false or with reckless disregard as to its truth or falsity conce r ning the q u ali fications or integrity of a judge, adjudicatory offici al or p ub lic legal o ffice r . . . .” T EX

. D ISC I P LINARY R ULES OF P ROF ’ L
C ONDUCT R. 8.02(a) , reprinted in T EX

. G OV ’ T C ODE A NN ., tit. 2, subtit. G, app. A. Finally, “A lawyer should de m onstr ate respec t fo r the legal system and for those who serve it, includi ng ju d g es , other lawye rs and public offi cials. ” T EX

. D ISCIPLINARY R ULES OF P ROF ’ L C ONDUCT R.

p reamble ¶ 4, reprinted in T EX

. G OV ’ T C ODE A NN ., tit. 2, subtit. G, app. A

. We address a ll si x of
Mosse r ’s sanctionable statements separately.
1. “Settin g [sic] the a tr oci t i es that were committe d by t he Administr

a t ive Judge and the ‘ Trial Judge , ’ one of them should have determined that Judge Phifer became personally invested in the creation of a r ecord , the inve s tig ation into the lost records, the man ipulation of trial e xhi b i ts , and thro ugh the i nforma tion he gain e d while not presiding over the ca se should have recused him from sitting after he conducted this ex parte investigation .” ( Emphasis ad d ed ).
This clai m ap pears on pages 64 through 65 of the brief Mo sser filed o n b e h al f of Laza.
In this stat ement, Moss e r claims that the a dministrative j udge and the t rial j udge
committed atro cities and that the trial judge conducted an ex parte investig a tion , am ong othe r th ings. By accusing the administrative judge and the tr ia l j u d ge of commit ting atrocities , Mosser
i s c laimin g that they committed “a shockingly bad or atr ocious act .” Atrocities , Merriam

-14

Web ster .com , https://w ww.merriam

- webster.com/dic t ionary /atrocitie s ( l ast visited Nov

. 9 , 2022). An “atrocious” act is one that i s “extremely wicked, b r utal, o r cruel .” Atrocious , Merriam

- Webste r .com , https://www.merriam

- webster.com/dictionary/at rocious ( last visited
Nov

. 9 , 2022).
In his response t o our order to s h ow cause, Mosser claims that this statement is merely a

“ si m p l e su mmation abo ut conduct of J udge Phifer and [and the administrative judge] in isolation, disregarding the some 15 pages of di scussion and citations and claims that Mosser cannot say
this , ag a i n f

or some reason.” He further states , “ I f these stateme nt s a r e v iewed as a violation of
th ose justice’ s integrity , there is no rule against such briefing. However, if the Court belie ves that these statements are without support, then it need on l y look t o t he record and the 15 pages of briefing d iscussion [ sic ] tho s e a ctions and their conduct.”
The state ment quoted above appeared in Laza’s brief on appeal under the heading
“Whether the Tr ial C ourt exceeded its authority by failing to recuse h imself a nd by failing to
follow the mandates of thi s Court’s Order.” In t h at section of his brief, Laz a complain ed that
this case was abated on February 2, 2021 , and that Judge Phifer was not assigned to the case by the administrative judge until July 13, 2021

. He f u r ther complained that the trial c o u rt investigated “mat te rs f

o r mon ths and had become a ma terial witne ss to his own investi gation.”
He claimed this was so because Judge Ph ifer apparently familiarized himself with the state of the
record b efor e he condu c t e d the first of two evidentiary he a r ings on July 13, 202 1. T h e b rie f
claim e d that Judge Ph ifer offered exhibits, le d witne sses through the admission of those e xhibits ,15

and suborned perjury

— an allegation that will be addressed below

— and therefo re shoul d ha v e recused.
Context is i m portant to an understandin g of t h e i ssue s with t he record in th is matter. The
notice of appeal was filed in June 2018. The clerk’s record was f iled in August 2018 , and the reporter’s record was filed in S eptember 2 018. Af te r t h e reporter’s record was f i led, Laza filed a suggesti on of b a n kruptc y , and the case was ad ministrative ly abated

. In May 2020, all appellate courts in the State of Texas, inc luding this Court , the Texas Court of Criminal Appeals, and t he
Texas Supreme C ou rt , were subjected to a ra n s omware attack that had the e ffec t , a mong o ther

t hings, of delet ing the cler k’s and reporter’s recor d s in this matter from our case manag ement system . When the case w as re
- instated, the clerk and the court reporter w ere requ ir ed t o re
- file
their rec o rds . There were discrepancies i n the r e c o rd that requ ired abateme nt to the trial court to resolve. Complicating the entire matter was the fact that three court reporters recorded the trial.
The record indicates that , on July 1 3 , 2021, the regional p r esiding judge signed the order

ap po inti n g J udge Phifer as the judge to preside ove r the abatement proceeding , presumably because Judge Phifer was appointed to preside over the trial. The re cord reflects that Judge
Phifer c onducted n o hearings before the July 13, 2021 , orde r
. The trial court un dertook the t ask of ensuring that a complete and accurate re cord was filed in this appeal. T he trial court conducted a len gthy evidentiary he a r ing on July 13, 2021

. T ha t hearing was rec e ssed to afford Laza additional time to i dent i f y any alleged defects i n the
record

. The day before the h earing was scheduled to commence again in August 2021, Laza filed a motion to recuse Judge Phifer based so l e ly on what Judge Phifer sa id on the record a t the16

prior July hearing regarding his e ffor t s t o address Laza’s comp laints as to th e r ecord. After tha t motion was denied by the administrative judge, the trial court conducted a second lengthy hearing on No v e mber 30, 2021. T he trial c ou rt made findin g s and conclusions regarding the record, w hich w e adopted.
As for L aza’s a sserti on tha t the trial judg e and the administrative judge committed
atrocities , meaning they committed act s that were “shockingly ba d ” or “extremely wi cked,
br ut al , or cruel , ” n e ither Mosser ’s explanations nor the rec or d it s e l f provide factual sup port for
this s tate ment. According ly, we conclude that this statement has no factual support and is a
violation of Rule 8.0 2 ( a) of the Texas Disciplinary Rules of Prof es si ona l Conduct , s e e T EX

. D ISCIPLINARY R ULES OF P ROF ’ L C O ND UCT R

. 8 .02(a) re printed in T EX

. G OV ’ T C OD E A NN ., t it. 2, subtit. G, app. A. , and of admonishment number 3 of our admonishment order.
As for Laza’s as s e rtion that the trial judge conduct ed an ex p ar te i nvestigation or
otherwise created the record or ma ni pula t e d exhibits , we find such asser tions devoi d of any factual basis and , thus , violat ive of Rule 8.02(a) of the Texas Disciplinary Rules of Profession a l
Conduct , s ee T EX

. D ISCIPLINARY R U LES OF P RO F ’ L C O N D UCT R. 8.02(a) reprinted in T EX

. G OV ’ T
C ODE A NN

. , tit. 2 , subtit. G, app. A. , and of a dmonis hment numb er 3 of our admonishment order.
As we explained in our opinion : The fact that the trial judge h ad personal knowledge of what occurred a t trial an d th e r efore had unique knowledge of the record is not a ba sis f o r recusal u nder the Rule. The trial judg e e xplained, on the record, that he had viewed the voluminous trial record to prepare for the abate me nt hearing and to enable the hearing to proceed ef

fi ci e n tly. The trial court acted appropriately in speak in g wi t h c ourt pers onnel about the rec ord to prep are for the hearing. Canon 3.B.(8)(d) of the Code of Judicial Conduct specifically recognizes that a ju dge’s communication with court person nel does n ot c o n stitute an impermissible ex parte17

communication. T E X

. C O D E J UD

. C OND UCT , Canon 3.B.(8)( d), re print ed in T EX

. G OV ’ T C ODE A NN ., tit. 2, subtit. G, app. C. The trial court’s groundwork in preparing f

or th e abatement hearing was conducted for the pur po se of clarifying the issues and expediting the hearing. T he t r i a l court wa s, after all, taske d with dete rmi ning the accuracy of the record. Allegations that hi s efforts in doing so formed the basis of a v ali d recusal motion are meritless.
Laza , 2022 W L 34 498 1 9 , at * 16 n.17. Mosser’s claims that Judge Phifer a nd t h e a dministra tive judge acted in approp riate l y in any fashion lack any factual basis and are therefor e sanctionable.
2
. “ Judge Phifer suborned p erj ury by soliciting the testimony of Ms . Vick w ho t est i fied under oath that the Court of Appeals, on Marc h 10, 2 0 2 1 , instruc ted her to change v olumes or i nde xes, and then told Ms. Vick that the ‘court of appeals said they would pull everything and refil e. ” This claim appears on page 67 of the brief M os se r f i led on behalf of Laza. In this statement, Mosser c laim s t h at Judge Phifer suborned per jury b y sol ici ting Vick’s 4 testimony

. “Perjury” means “the voluntary violation of an oath or vow either by swe arin g to
what is untrue or by omission to do what h as bee n promised under oath : false swearing .” Perjury , M erri a m
- W ebster .com , https://www .merr iam

- we bster .com/dictionary/perjury ( last
visited Nov

. 9 , 2022). “Suborned” means “to ind uce to commit perjury.” Suborned , Merriam

Webster.com , https:/

/www.mer ri am
- web s ter. com/dictionary/suborned (last visited Nov. 9,
2 022)

. M osser must therefore establi sh a f actua l basis f

or the proposition s (1) that Vi ck lied under oath and (2) that the t rial court induced her to do so. In his response to our order to show c a u se, Moss er claims that this Court has disregarded
the ev iden t i a r y support for this “factual statem ent.” Mosser t hen cite s a specific por tio n of the
record in which Vick testified , “ I’ve got a letter from the court of appeals, March the 10 th

4 Vic k is S usan Waldrip Vick and is ide ntified in th e record at times a s Ms. W aldrip. Vick was one of t he three c ourt reporters who tran sc ribed the trial p roceedings in th is matter.18

20 21, [ 5 ] w he r e it was filed and then they came back and wanted the i nd ex c h a n g ed, so Vol umes 2, 3 and 4, a nd the cour t of appeals said they would pull ev eryt hing and refile. ” M osser stated
that he “ specifically asked the clerk’s office to provide these comm un icatio ns t o him,” citing a December 7, 2021, letter to our c lerk

. In t h a t letter, Mos ser expressed co ncern about
communications between this Cou rt and u nknown persons . Mosser stated that he “called the
clerk [’] s of

fice to determine t he veracity of a st atement m a de by the Court Reporter, that she had been told by [the c lerk ’ s ] office that the exhib its fil ed wit h the Court of Appeals were suff ici ent

. ”
Mosser’s lett er continues, “Your clerks informed me, unequivocally, that the re had been no
writ ten commu nication s fr om the Court of Appeals to anyone regarding this case

. Howe v e r , a simple review of th e dock et she et, a term that seems to continu all y el ude everyone in this case, demonstrates that your clerks were not entirely hone st.”
The written communica tions re fe re nced b y Mosser as reflected in the docket sheet were

e ma ils b e t w een the clerk’s office and t he dis trict court coordinator and the dis tric t clerk regardin g the scheduling of the evidentiary hearings in the trial court . Those emails wer e provide d to Mos se r by thi s Court

. Mosser ’s response stated that h e aske d o ur cl e r k , “So you
hav e no reco rdings or an y oth er communications that are not pub licly available online? Such as: (testimony of Vick above a s quoted above ). ” O ur clerk’s office responde d , “W e do not have anything else.” From this exchange, Mos se r po s it s tha t V ick must have been lyin g whe n she

5 By le tt er d at ed Ma rch 10, 2021, our clerk’s office notified the parties t hat th e c e rtified reporter’s record (v olumes 2, 3 , and 4) was e lectron i cally received and filed. Susan Waldrip, c ourt r eporter, was co pied on the letter, as was the trial court.19

testi fied (as quoted above). Mo sse r di d not attempt to ex plain a factual basis for his assertion that Judge Phifer subor ned perjury.
The record o f th e Jul y 13, 20 2 1, hearing indicates that Mosser filed, on beh a lf of L a z a , a document captioned Notic e of E rrors and Motion to Correct Co urt Rep orter’s Record

. At the hearing, t he first issue the court addressed based on that document “was a statement o f fa cts i n the court of appeals that did not relate to thi s case , c learl y d id not relate.” Vick explai ned :
T he po rtion that they ’ re all egin g that was attached to the court’s record was heard in 2020. The o r iginal court record was filed in September in 2 0 18 a nd it coul d not have been included since it was a CPS ca se t h at was h e a rd in 2020. I t would not ha ve bee n att ached to the or igin al cour t record or statement o f facts that was filed in 201 8 , September 20 1 8. The original court record that was filed in 2018 was filed and approved from the court of appeals. I ha ve l e tt ers s t a t ing that.
And then a s far a s that , the court of appea ls g ot hack ed and so I don’t know. What happened was the court records in the court of appeals, everything got mixed up.

. . . .

. . . . So they wanted us to refile it again and t he n on c e these i s sues
- - I was aware t hese is sues w ere b rought up the y pull ed the record . So . . . as far as the whole statement of facts to be fi led we were supposed to refile ever ything again, b e caus e I’v e bee n talking back and forth to the court of app ea ls.
T he tr i a l court summarized , “ A nd I wi ll sta te it clearly is not

- - tha t pa rt of the record clearly was
not relat ed to this case and I assume both parties, even if it were still there, would stip ulate to t h e court of appeals that it has no t hing to d o with th is ap p e a l and it would not af fect i t

. ” Co unsel for
the c ity agr eed. James C. Mosser quest ion ed Vick about the certification of the original record filed in September 2018. The trial cou r t th en as ked V i ck whether the irrelevant portion of the

re co rd w a s inclu d e d in subse quent filing s, and she re spond ed t hat it had no t be en included.20

When James C. Mosser asked the court to clarify, the court stated that it was “ s peaking strictly
about on p age two o f you r Motion to Correct Court Reporter’s Records

. You ha ve a s e c tion called Inapplica ble Sec tions and y ou claim that the re’s a t le ast three volumes that relate to
matters other than Mr. Laza’s case

. ”
Our records further reflec t that the volum e s fi led o n Mar c h 10, 2021, are related t o this

case and th at our cl erk r e m o ved the misfiled volu mes
. T his is sue w as discu ssed a t t he h earing at length

. It is apparent from the record that the court reporter contacted this Court’s clerk’s office regardin g the misf

iled v olumes, those volumes were taken down, and th e co r re ct v o l u m es were filed in thei r stead

. Not hing in Moss er’s ex pla nati on provides a factual basis for the assertion s (1) that Vick perjured herself or (2) that Judge Phifer suborned perjury. Th i s sta t e ment is particularly egregious not o nly because i t la c k s any f a c tual basis, but becaus e it a ccuse s both Vi ck an d Ju dge
Phifer of criminal conduct . Th is statement violate s Rule 8.02(a) of the Texas Disciplinary Rules
of Professional Conduct , s e e T EX

. D IS C I PLINARY R ULES OF P ROF ’ L C ONDUCT R. 8.02(a) repr in ted
i n T EX

. G O V ’ T C ODE A NN ., tit. 2, subtit . G, a pp. A , and adm o nis hment number 3 of our
admonishment order and is therefore sanctionable.
3
. “Judge Phifer requested to stay on the case and attem p ted to in

fluence the Administrative Judge by i ndicating hi s wish e s on re m a i ning on the case
. All of th is was o ff th e re cor d, i n ex parte correspondence with the Administrative Judge.” (Emphasis added). This claim appears on page 68 of the brief Mosser f iled o n b ehalf of Laza. In response to our show cause or de r, M o ss er st a t e s that this statement was fa ctuall y

s up por ted by th e record and that the entirety of the statement in his brief was:21

Despite this, the Judge Phifer requested to stay on the case an d att em p te d to influence the Administrative Judge by indica ti ng h i s wishe s o n remaining on the case. Ap px. 6. All of th is was off the record, in ex parte correspondence with the Admini strative Judge.” Appx. 6 (“Judge Phifer does not wish to recuse in t h i s mat te r a nd has instructed me to forward this motion to yo u for r ul ing.” )

. Mosser poin ts ou t that he cited Rule 18a (c) (2) of the Texa s Rule s o f C i vil Procedure and caselaw in support of this statement , which stands for the proposition that the “rules plainly d i scou ra g e any attempt by the challenged judge t o influence th e ju d gm ent o f t he assigned ju dge.” Rule 18a(c)(2) sta tes , “ The ju d ge whose recusal or disqualification is sought should not file a response
to the motion.” T EX

. R. C IV

. P. 18 a (c ) (2). The recor d doe s n ot include any response to the motion by Ju dge Phif

er
. Th e s ta t e m ent quoted above rel ates t o Laza’s moti on to rec use Judge Phifer on August 26, 2021. In his response and in h is brief, Mosser refer red to Appendix 6 of the appellant’s brief

, whic h con si s ts of an email from Cindy Singletary, the d istrict c o ur t c oo rd ina t o r for Anderson County , to J udge Alfonso Charle s. T h i s email apparently is the “off the record” “ex parte correspondence with the Administrative Judge” to which Mosser refers in the stat em e nt quoted above . The email reads:
Good mor ning Jud ge C ha r le s,
W e w ere set this morning for a n evidentiary heari ng in t his matter when unbeknownst to us, this last

- minute Emergency Motion to Recuse was filed. The clerk did not have it pulled out o f th e e fi le system until this morning.
We have ca lled off t od ay ’ s he ari n g
. Judge Phifer does not w i sh to recuse in thi s m att e r and has instructed me to forward this motion to you for ruling. Due to the size of the exhibit

- it had to be broken up into s e vera l d oc uments, my apologies.22

Thank you, Cindy Singleta ry , Di s tr ic t C o u r t Coordinator
Rule 18a ( f

) states: (1) Respo ndi ng t o the Motion. Regardless of whether the motion complies with this rule, the respondent judge, within three business days after t he m ot i on is filed, must ei ther: (A) sign an d file with th e cl e rk an o r d e r of recusal or disq ualif i cation; or ( B) sig n a nd f ile with the clerk an order referring the motion to the regional presiding judge.
T EX

. R. C IV

. P . 18a(f)

. The record reflects t hat Ju d ge Phifer signed an d filed an o r der of referral

on th e mo t io n to r e c use to Judge Charles on A u gust 27, 2021 . The or der stated , “I respectfully decline to recuse myself and request the Presiding Judge of the Tenth Administrative Judicial Regi on t o as s ign a j udge to hear the motion t o recuse .” This or der w as proper ly si g n e d and filed
in accor d ance with , and as r equ ire d by, Rule 18a(f ).
The email from the docket coordinator to Judge Charles stating that Judge Phifer did not
wish to recus e provided n o f actu al basi s for the assertion that Judg e Phif e r attempted to inf

luenc e

t he Administrative Ju d ge by indicating h i s w ish e s to remain on the case . It merely echoed the
information in the order filed by Judge Phifer, as was required by Rule 18 a (f).
W e con cl u de t hat , be cause Mosser has failed to pr ov ide f actual support for this s t atement , Mosser’s st a temen t violates Ru l e 8 .02 ( a) of the Texas Disciplinary Rules of Professional Conduct, s ee T EX

. D ISCIPLINARY R ULES OF P ROF ’ L C ONDUCT R. 8.02(a) r epr i nted i n T EX

. G OV ’ T23

C O DE A NN ., tit. 2, subtit. G, app. A, and admonishment numbe r 3 o f o ur admonishment or de r and is therefor e s anc t ionable.
4. “The ‘ Trial Judge change[d] testimony of witnesses. ’ ”
This claim appears on page 75 of Laza’s brief and alle ges a violatio n o f S ectio n 37.09 , subse ctions (a) and (d) , o f th e Texas Penal Code

. See T E X

. P ENAL C ODE A N N

. § 37.09 (a), (d) (Sup p.) (classi fied as third

- degree felony offenses of tampering with or fabricating physical evidence).
In his res p onse to our sho w cause ord er, Mosser claims that this statem ent stems f rom

a dvocacy based on t he re c o r d. Mosser po int s ou t that , had we not omitte d the balance of the quotation , the statement would have read:
T he trial court issued its f indings in a report to this Cou rt on Decem ber 14, 20 2 1. Paragr aph five of the findin gs rea d s:
5

. CLAIM: “Vol . 2

- E x 1 1 & 12

- R ight of W ay?
FIN DINGS AND RES OLUTION : As he stated at the hearing, Appellant’s objection is that he cannot identify the Right o f Way marker in the p h otogr aph. Exhibit 1 1 is a pho t og raph of lawnmowers with high we eds o n Appellant’s prope rty ( a s identifi ed i n Vo l . 2 , p. 5 1). Exhibit 12 is a photograph of Appellant’s property taken in October, 201 6 (as identified in Vol 2, p. 152

– 153). This claim is n o t ab out an error or omission i n t he reco rd and is not valid.
In his response, Mosser st ates , W hen we l o ok to the t estimo ny that the J udge claims provides the evidence that this is a “ photograph of Appellant’s property taken in October 2016” no su c h testimony is present in t he pa g es r efe renced by the Judge (152

- 153 )

. How e ver, the witness on page 1 4 6, w hile testifying on Exh ibit 12 (as c onfirmed by the Judge several years before) he is able to “point out on 12 where [the right of way marker] is.” 2 0 210310. RR 2,14 6.24

Volume two o f the re porter’s record filed in thi s c ause states, on pages 15 2

– - 53 : Q. ( By M r . Stutes .) And wi th regard to Exhibit 12 , does that accurately represent what you saw on the property when you were at the pro

- - at Mr. Laza’ s property in A ugust of 2016

- - in Octo ber

- - I’m sorry

- - of 2016?
A. Yes. Mosser plays fast a nd lo o s e wi th h i s interpreta tion o f the record

. The record he relies on in support of his allegation is a record that was filed in this Court on March 10, 20 21 , prio r to the
tim e the tria l court en tered its findings as to the r eco rd. Volume two of the Ma rch 1 0 , 2021 , record include s the same testimo n y as volume two of the record filed in this C ourt on
December 14, 2021. It appears as if, though, the page num be rs do not prec ise ly correspo nd in
each of these volumes due to a dif fer enc e in font size. The s ame t e s t imony quoted above a s
appe aring on pag e s 152 through 153 of volume two of the December 14, 2021 , record appears on

page 149 of volume two of the Marc h 10, 2021 , r ecor d.
Furthe r, i n v olume two of the March 10, 2021 , rec ord the witness testified , o n pag e s 145 through 146 :
Nex t to t he driveway a pproach on the lower l e ft

- hand side, there’s piece of concrete with a

-- probably a brass circle in it that i s a TXDOT righ t of way marker , o r
- - right

- - establishing that’s the Ri ght

- of

- w ay line f

or the high w ay
- - TH E COURT: This is on 11 ?
MR. STUTES :
- - 11 and 12

. THE WITNESS: I’m sorry. 12. 12. MR. MOSSER: I’m going to object. He’s not qualified t o determine th at, and I d o ubt th a t he’s a surveyor, so I don’t think he can mak e that de termination, Judg e
. He doesn’t have the crede ntials.25

Thi s precise testi mony also appears i n volume two of the December 14, 2021 , record on page 149. The point is, e ve n though Jud ge P hifer wa s refe r ring to t he later version of the record

at the hearing rather than t he v e r sion Mosser points to in hi s response, b oth records inc lude the same testimony. Judge Phifer had all of the testimony before him to enable him to ma ke a determina tion as to t he exh i bits in t his case. The fact is, Judge Phi fer d etermine d that exhib i t 12
i s a p hotograph of app ellant ’s property t aken in October 2016. That is precisely what the testimony on pages 152 through 153 of volume two of the De ce mber 14, 2021 , re porter’s recor d

states

. That is also precisely what t he test i mony on page 149 of volum e two of the March 10,
2021 , reporter’s re cord states

. If Mosser believed that this was not the proper exhibit as identified by the testimony, he sim pl y should have poi nted that out to the tr i al court. Instead, Mosser ch ose to m ake the bold and fac tuall y uns u pported statement that the trial

cou rt changed the testimon y of the witness es , which he claims is a felonious act. We conclude that, because Mo ss er has failed to provide factua l support for this statement, Mosser’s s tat emen t violates Rule 8.02( a) of t he T exas Disciplinary Rules of Professio nal Conduct, s ee T EX

. D ISCIPLINARY R ULES OF P ROF ’ L C ONDUCT R. 8.02(a) repr inted in T EX

. G OV ’ T C ODE A NN ., tit

. 2, subtit. G, app . A , and a dm on ishme nt nu mber 3 of our admonishment ord er and i s therefore

sanct ion ab le.26

5
. “This Court has det ermine d that unnece ssary expenditure of judicial resources and spurious ad hominin [sic] attacks on counsel for Appellant , w it hout evidence, f

actu al hearings, o r tes timon y, make more sense than addres sin g th e jurisdictional i ssu es at t

h e outset of this mat

ter .” (Emphasis ad ded).
This stateme nt appeared on the last page of Laza’s brief, in the prayer. In his response to

our sh ow cause order, Moss er explain ed t hat t his s tatemen t is a response to the fol lowi n g language in thi s C ou rt’ s admonishment order :

O n Dece mber 6, 2021, Mosser made accusations regarding this Court’s responsibility for the May 2020 ransomware attack that affecte d not only th is C ourt, but all ap pellate courts, the Texas Court of Cri min a l A p p eals, and the Texas Supr e m e Court. He inapprop riatel y suggested t hat someone from this off

ice caused the statewide ransomware attack by watching “porn” on a state computer. M os ser also us ed p rofanity while s peaking with the cler k during this tel eph o ne c o nvers a tion.
Mosse r cla i m s that this statement is a spurious ad h omin e m attack on him. He base s this claim
on the assertion that th is Court’s clerk’s office denied that he ev er made such stat ements. Aga in, con tex t is important. O n January 26 , 2 0 22, M osser emailed the c lerk o f this
Court , stating , “ In l i ght of the C ourt’s order that nothing in th is matter has been sealed under Rule 76a, pleas e provide me with copies of al l t he email cor resp ondence the Co urt or it s staff has
had with any pa rty c on cer n i ng this case. ” I n r espon s e to that email, our c lerk e m ailed Mosser , also on January 27, 2022, sta ting, “Copies of the email correspondence you requested are
attached. ” As we explained earl ier, the ema ils ou r clerk se nt to Mosser were e mails betw e en the

c lerk’s office and th e dis t r ict cou rt coordinator and t he district c lerk regarding the scheduling o f the evidentiary hearings in the trial court. After Mosser received that inf ormation , Moss er

r e sponded ,27

So you have n o reco rding s or a ny other comm uni cati o ns that are not publ icly a v ailable online? Such as: “MS. VICK: T his is Susan Waldrip Vi ck . I’ve got a letter from the court of appeals, March the 10 th , 2021, whe re it was filed and th en they came back and wanted th e inde x cha nged, so Volumes 2, 3 and 4 , and the court of a ppeal s said they would pull everyt hing and refi le. ” Nothing from Ms. Vick and no recordings of any calls? Our clerk responded, “We do not have an ything else.”
Nowhe re in the email chai n set fort h abo ve do es th e clerk deny ha vin g re c eived any telephone calls f

rom Mosser on Decembe r 6, 2 021.
Mosse r also attached the ca se events sheet from our computer data base in support of his
claim that th e c lerk’ s office denied th at h e ever made th e statemen ts se t for th in our admonishme nt orde r as qu oted above. T he ca s e events sheet documen ts sev eral events n oted as “telephone ca ll received

. ” A pparently , Mosser relies on the absence of such a documente d

“ telep hone call receiv ed” on December 6, 20 21 , in sup port of h is cl a im that he did not cal l the
clerk’s office on th a t da te . As a matter o f cour se, the “even t type ” listed in the case events sheet typically documents only those telephone calls or emails th at pe rtain to filing dat es, securing the

r ecord, mon itor ing t he st a tus of an order to the t rial court, or miss ed de a d lines. Our clerk’s

o ffice does not docu ment every call regar ding case inquiries or complaints. Mosser’s
December 6, 2021, telephone ca ll was not listed in thi s C ourt ’s case events sheet bec ause it d id

no t pertain to the ma tter s typically documente d, as d escribed above. Inst ead, d uring Mosser’ s telephone call , he used profanity and made an improper accusation regarding the ransomware

att ack . I n any event, the a bsen ce of such doc umenta tion of th a t telephone call is not , a s Mo s se r suggests, a deni al by o ur clerk’s office that the ca ll happ ened.28

We conclude that the statement that this Court made spurious ad hominem attacks on
Moss er is w ithout a basis in f act

. We further c onclu de th at Mo s ser has not attempted to pr ovid e

a factual basis for his a s sertions that this Court has unnece ssarily expended judicial r esources in personally attacking him rather than addressing the jurisdictio nal iss ues at the outset o f th e
matter. Mos ser’s opin ion o f the manner in which thi s c ase h as proceeded does no t pro v i de a
factual basis for a stat ement regardi ng the intent of thi s Court. Both statements violate Rule 8.02(a) of the Texas Disciplinary Ru les of Professional Conduc t, s ee T EX

. D ISCIP LINAR Y R UL ES

OF P ROF ’ L C ONDUCT R. 8.02(a ) r epri n ted in T EX

. G OV ’ T C O DE A N N

. , tit. 2, subtit. G, app. A, and
ad monishm ent number 3 of o ur admonishment order and are therefore sanctionable.
6. “ Combined with th e at roc ious conduct of the ind ivid ual masqueradi ng as a ju dg e . . . and the sheer volume of err o r attributed to the actio n s of this court and the lower court, this d ecision cannot st and . . . .” ( Emphasis added). In this final statement, Mosser accuses J udg e P hifer of committing atr ocio us conduct and

o f m asque r ading as a judge. Th is state men t ap p eared on the last pa ge of L aza’s brief, in the

prayer.
In h is resp onse to our show cause order, Mosser questions why this language would
strike the court’s i r e, as the Texas Court of Crim inal Appeals ha s m ade t his o b servation : There can be no co urt , in a legal sense, witho ut a j u dge, and there can be no judg e exce pt as h e may be elected and chosen under the Constitution and agreeably to law. It therefore resu l ts tha t, however eminent in l earn ing and howe ve r fai r in f act may be the person who pre sid es o v er the trial, unless he i s in a legal sense a district j udge t he gath ering masqueradin g as a court becomes of no higher dignity than the same number of respecta b le gen tlemen gathered by chan ce o n the street
c orner
. O a tes v. State , 56 Tex. Crim. 5 71, 584 (1909) (emphasis add ed).29

In the Oates case, the distr ict ju dge was disqualified

. Th e special judge who tried the case was appointed by the g overnor , who lac ked constitutional or statu to r y au thority to mak e the

app o i ntment. As a result, the ap poin tmen t was void. There ca n be n o claim in this case that Judg e Phif

er was not properly assign ed by the administrative judge to try this case.
To “ masqu erade” is to “assume the appearance of s om ethi ng one is not. ” Ma sq uer ade , Merriam

- Webster .com , htt ps:/ /www

. merriam

- webster.com/ dicti o n a ry/ m a s querade ( last visited
Nov

. 9 , 2022)

. The statemen t that Judge Phifer masquera ded as a judge is without a factual basis
and vi olates Rule 8.02(a) of the Tex as D i sciplinary Ru les of Pro fessional Conduct, s ee T EX

. D ISCI PLIN A RY R ULES OF P ROF ’ L C ONDUC T R

. 8.02(a) reprinted in T EX

. G OV ’ T C ODE A N N ., tit. 2,
sub tit. G, app. A, and admo nishmen t number 3 of our admonishment order an d i s therefore
sanctionable.
We ha v e p reviously expl ained, und er item number one above, why the re i s no factual
bas is fo r the s t atement that the trial court exhib ited at rocious cond uct. As a result, we find that
th is same statement listed under item six is likewise without a factual basis and violates Rule 8.02(a) o f the Texas Disciplinary Rule s of Pro f essional Conduc t, s e e T EX

. D ISCIPLINARY R ULES

OF P ROF ’ L C ONDUC T R. 8. 02(a) reprin ted in T EX

. G OV ’ T C ODE A NN

. , tit. 2, subtit. G, app. A, and
admonishme nt number 3 of our admonishment orde r a nd i s therefore sa nctionable

. Each of the statements li sted abo v e in items one throu gh si x l ikewise violate the preamble
of th e Texas Lawyer’s Creed, which states, “A l awyer s hould demonstrate respect for the legal

sys tem and for those who serve it, i ncl udin g judges, othe r lawyers and public officials.” T EX

. D ISC IPLI N ARY R ULES O F P ROF ’ L C ONDU C T R. p reamble ¶ 4 , reprinted i n T EX

. G OV ’ T C ODE A NN

. ,30

tit. 2, subtit. G, app. A

. As was true in Judge Mazzant’s c ourt , Mosse r’s conduct here “demonstrate[s] the ut most disrespect.” Jabary , 3 25 F.R.D. at 199.
VI I
. App ropr iate Sanct i ons
As outlin ed ab o v e , Mosser made factually unsu pporte d and d isrespect ful comments regarding the trial court, the administrative judge , and thi s C ourt

. One of Mosser’s comments

accu sed t he trial cour t and the court reporter of criminal co nduc t , a n d one of his comment s

acc u s e d the trial court of a separ ate in stance of crimin al conduct

. Over four y ears ag o, Judge Mazzant sanctioned Mosser $3,000

. 00 for similar conduct

. Judge Maz zan t al so order ed Mos ser to att end continuing legal educatio n on eth i cs. Given
Mosser’s conti n u e d sanctionable conduct despi te hav ing bee n previously sanctioned, w e conclu de that a sanction in the amount o f $ 3,000.00 was not sufficient to persuade Mosser to
ref rain from engag ing in sim ilar conduct in the future. A s a res u lt, and because of t he le v e l of disrespect Mosser has de monstr ated to the trial court, the admi n istrati ve judge, and this Court,

we find a monetary sanction of $600.00 for each of th e six identified stat ements app ropriate to
deter further co n d uc t in t he future. We also note M o s ser’s willful failure to person al ly att en d the show cause hearing on October 31, 2022, but decline to sanction th at willful conduct , since he
did cause an extens ive wri tten respons e to be fi led and did a rrange for his law partn e r, James Mosser, to appea r a t the hearing.
It is therefore OR DERED th at Nichola s D. Mosser pay mo netary sanctions in the amount $3 , 600 .00 for the statements made in briefing to this Court a s ou tlined above. Mosser i s31

ORDERED to pay the entirety of t he mo n etary sanctions to t his C o u r t within ten (10) days from
the d ate of t his Or der.
Fu rther, Mosser’s disparaging and fa ctu ally unsupported remarks about the trial court , the
administrative judge , and t hi s Co urt raise a substantial question about Moss er’s “ honesty,
trustworthines s or f

i tness as a l awyer.” T EX

. C ODE J U D

. C OND UC T , Ca non 3D( 2) , reprinted in
T EX

. G OV ’ T C ODE A NN

. , tit. 2, subtit. G, app. B

. As a result, we a re bound by Canon 3D (2) o f
the C od e of Judicial C onduct to inform the Office o f th e Gen e ral Counsel of the Stat e Bar o f
Texas of this matte r. See Johns on , 94 8 S.W.2 d at 84 1. We, therefore, ORDER the cler k o f this Court to promptly forward to the Office of the
General Couns el of the St at e Bar of Texas, for investigation and any ot her actio n it may deem

necessary , a co p y of ( 1 ) our order of admonish ment dated Ja nuary 26, 20 22, ( 2 ) our notice and
show ca use order dated September 16, 2022 , and (3) this o rder.

BY THE COURT
D a te: December 5 , 2022