Pablo Soliz v. State ( 2015 )

ACCEPTED
04-14-00551-cv
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/8/2015 11:27:49 PM
KEITH HOTTLE
CLERK
NO. 04-14-00551-CV
FILED IN
4th COURT OF APPEALS
IN THE COURT OF APPEALS SAN ANTONIO, TEXAS
FOR THE 09/8/2015 11:27:49 PM
FOURTH JUDICIAL DISTRICT OF TEXAS KEITHClerk
E. HOTTLE
SAN ANTONIO, TEXAS
PABLO SOLIZ § APPELLANT
§
V. §
§
STATE OF TEXAS § APPELLEE
APPEAL FROM 79th JUDICIAL DISTRICT COURT
BROOKS COUNTY, TEXAS
TRIAL COURT NO. 14-02-16542-CV
________________________________________________________________
APPELLANT’S MOTION FOR REHEARING
Rick Soliz
Attorney at Law
Texas Bar Number 00785013
P.O. Box 4051
Houston, Texas 77210
713-228-1900
Counsel Pro Bono
ORAL ARGUMENT REQUESTED
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NO. 04-14-00551-CV
IN THE COURT OF APPEALS
FOR THE
FOURTH JUDICIAL DISTRICT OF TEXAS
SAN ANTONIO, TEXAS
PABLO SOLIZ § APPELLANT
§
V. §
§
STATE OF TEXAS § APPELLEE
APPEAL FROM 79th JUDICIAL DISTRICT COURT
BROOKS COUNTY, TEXAS
TRIAL COURT NO. 14-02-16542-CV
________________________________________________________________
APPELLANT'S MOTION FOR REHEARING
TO THE HONORABLE JUSTICES OF SAID COURT:
Now comes, Pablo Soliz, Appellant in the above entitled and numbered
cause, by and through his pro bono attorney of record, Rick Soliz, and submits
this First Motion for Rehearing. For good cause, Appellant shows as follows:
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FACTS
Constable Soliz has had more education and training than any other elected law
enforcement officer in Brooks County or adjacent counties. Historically in Texas, elected
constables had 2 years from taking office to receive required training. And prior to that,
permanently appointed constables need never reach certification. Constable Soliz has
received some formal training at Sam Houston State University since taking office. Constable
Soliz has a 4 year college degree and additional training. He has been certified as a Texas
licensed peace officer and has served multiple jurisdictions through employment and election.
Brooks County is one of the most impoverished in the state. And it has always lacked
educated, competent and moral law enforcement. When one happens to appear as with
Appellant, an "all points bulletin" is put out to destroy. By way of just a few examples
pertaining to Brooks County's recent history: An elected districted attorney has been
disbarred and jailed. Prior to election, he was trained and personally assisted as first assistant,
the elected district attorney ran against and beat. The loser is now the district judge, who
replaced the last judge who was prosecuted, convicted and removed from the bench for life.
The current judge recused himself from this proceeding since Constable Soliz simply knows
too much history about the court's inner workings and related offices. The sheriff during these
times was booted out of town by votes and investigated. He avoided prosecution multiple
times as do most local cops who are merely fired, demoted or transferred among the various
local agencies, instead of prosecuted. In the last few months though, more than half a dozen
cops in the very small county seat and only city, have been merely fired for illegal and
felonious conduct or actually prosecuted and sent to jail. And more investigation is at hand of
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several at multiple levels. And of course the appellee's office's head has been indicted for
serious crimes. I'm sure I have failed to mention others. And that gets us to Constable Soliz.
Persecuted over the years by those I have mentioned above for investigating and complaining
about their illegal conduct, and now prosecuted for lack of training by the indicted attorney
general opposing this appeal. This is somewhat of a joke since Constable Soliz has more
experience and training than anyone else on any local police force and including the bloating
number of unnecessary state and federal officers in the area tripping over themselves.
Moreover, it does not take any legal action to note that the law cannot require the impossible.
Constable Soliz was specifically targeted and illegally prevented from enrolling in the training
facility Brooks County utilizes - based on Constable Soliz's age. As an aside, why hasn't
anyone checked training and test records for all other peace officers in the County, including
the illiterate ones. Could it be no one would be left to police the area?
II.
ARGUMENT, AUTHORITY AND EVIDENCE
The standard upon summary judgment is, “whether, after considering all evidence in a
light most favorable to the nonmoving party, the moving party is entitled to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552 (1986). The
Supreme Court outlined three principals that would determine if summary judgment was
appropriate: 1) The party moving for the summary judgment must meet an initial burden of
showing no genuine issue of material fact exists, 2) The substantive law governing the cases
will determine what issues are material. 3) If the moving party meets its burden, the party
opposing the motion must present affirmative evidence and must produce more than a mere
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scintilla of evidence to overcome the motion; and 4) The court does not need to look to the
entire record to establish whether a genuine issue exists requiring trial, but need only look to
those portions of the record to which the parties point to the court. Id at 2552-55; See also 3
ATLA’s Litigating Tort Cases § 31.3. A fact is material if its resolution might affect the
outcome of the suit. See Anderson v. Liberty Lobby, Ins., 477 U.S. at 248. Rule 56(c) also
requires the dispute be “genuine”.
When facts are unavailable to the nonmovant. If a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its opposition,
the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits
or declarations or to take discovery; or (3) issue any other appropriate order. See Fed. R. Civ.
P. 56(d) (1-3).
Constable Soliz has a 4 year college degree and additional training. He has been
certified as a Texas licensed peace officer.
A constable is elected to hold office “for four years and until” his or her successor is
elected and qualified. Tex. Const. V, sec. 18(a). Where the constitution prescribes the
qualifications for holding a particular office, the legislature lacks the power to change or add
to those qualifications unless the constitution provides that power. Luna v. Blanton, 478 S.W.
2nd 76 (Tex. 1972).
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III.
TRAINING
The government alleges that Constable Soliz is not licensed because he did not obtain
training in the appropriate amount of time. The Constable replies that he trained and was
licensed long ago therefore there is a fact dispute. Constable Soliz worked as an elected,
licensed peace officer and hired licensed peace officer for multiple agencies. That training
and licensure does not disappear in thin air as if it never happened simply because of the
passage of time. Are elderly people and their accomplishments to be discarded as if they
never occurred? As mentioned, Constable Soliz has more education, training and experience
than any other constable in Brooks County and possibly all of South Texas. Additionally,
Brooks County belongs to the Coastal Bend Council of Governments therefore Brooks
County officials always look to Del Mar Police Academy in Corpus Christi as their home
school for training purposes. And Brooks County officials are reimbursed expenses for
training by Brooks County. Constable Soliz met with Del Mar’s Director Stan Repka who
refused to provide an application to Constable Soliz and told him to look elsewhere because
of primarily because of his age and the fact that he would not be able to pass the rigorous
physical tests during the training. Constable Soliz then asked Brooks County Commisioner’s
Court and head of commissioner's court, County Court Judge Raul Ramirez for financial
support, just like they provide for every other peace officer in the county when it deals with
mandatory mandatory training, in order to attend any alternative academy in order to begin
and complete his required training. Mr. Ramirez, who was not reelected and is leaving office
with the his county government in financial ruin for acts during his tenure, blocked and denied
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financial assistance at any alternative school and instead later reported this Constable to the
attorney general’s office due to lack of training. Such actions commenced these proceedings.
Constable Soliz’s income, less than $800.00 a month constable salary, was completely
insufficient to pay for travel expenses and additional training costs. Coincidentally, the
government about the same time, also took his place of business without compensation for the
construction of I 69 through town.
Later, on April 23, 2013, Constable Soliz traveled to St. Mary’s University in San
Antonio, TX to appear for a previously scheduled appointment to complete the TCOLE
(Texas Commission on Law Enforcement) State Test in order to recertify. Constable Soliz
had studied for two months for this test and paid the $20.00 fee. Mr. Soliz was not allowed to
participate in the exam by the same entity that scheduled his appointment, presumably
because he had not completed training.
So to summarize, there is clearly a disputed fact relative to training. Appellee has not
disproved Appellant's fact of being disallowed and blocked from obtaining his training.
Constable Soliz's efforts to obtain additional training were stifled by gatekeepers who held the
gate shut. Therefore, it was in every way impossible to comply with any mandatory training,
if any, during the time period in question.
What are our appellate courts created for if not to rectify situations like this from the
hands of abusive government efforts to prevent training and remove a qualified,
constitutionally elected public servant?
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The trial court erred by refusing to recognize the fact issues raised by Appellant
regarding his defenses, of not being provided with funds for training and not being admitted to
training based on age, sufficient to materially dispute movant’s summary judgment evidence.
ISSUES PRESENTED FOR REHEARING
Appellant submits this response to the opinion issued by the Court on July
22, 2015, and requests that the Court consider the following issues:
Issue 1: The Court of Appeals erred in finding that Appellant should have done
the impossible and that any particular defense need be stated in the punitive
removal statute itself.
Issue 2: The Court of Appeals erred in finding that Appellant should not have
his requested and constitutionally protected jury trial.
Issue 3: The Court of Appeals erred in that Appellant has not claimed a due
process violation.
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ARGUMENT AND AUTHORITIES
ISSUE 1
Appellant cannot be expected to do the impossible. The law must allow for the
mandated procedures to be possible. Some things do not have to be written into the law but
are common judicial sense. What should Constable Soliz do? Should he begin arresting those
who prevent him from fulfilling the training mandate. Or should he shoot his way into the
training facility and sit down for classes? For the government to mandate actions, then
purposely single out an individual to prevent the individual from fulfilling those actions, is
beyond sinister and plainly illegal. This defense has a built in fact dispute that Appellee must
disprove to prevail upon summary judgment. The appellee must disprove Appellant's
allegation or show there is no dispute of a material fact. To interpret the statute as this court
has done makes the statute unconstitutional. Appellant cannot contest what he cannot foresee
until he sees it as he has here.
Defendant, as the nonmovant, chooses his own defense and is not required to prove his
defense of not being allowed to enroll in the academy and not being provided with money to
obtain training and licensure, in response to a motion for summary judgment. But the mere
raising of a fact issue is enough to defeat the summary judgment, American Pertrofina. Inc.
v. Allen, 887 S.W.2nd 829 (Tex. 1994); Brownlee v. Brownlee, 665 S.W. 2nd 111 (Tex.
1984). In the case at hand, appellant and appellee (in their evidence submitted of appellant’s
complaint letter to the attorney general’s office prior to the 270 days) both did in fact raise a
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fact issue regarding appellant’s defense sufficient to materially dispute movant’s summary
judgment evidence.
Appellant points to the mentioned evidence regarding appellant’s defense that the
training academy director refused to allow him to apply for admission based on age and
refused to accommodate a disability. And that the Brooks County Judge (appellee’s affiant in
the motion for partial summary judgment) refused to provide funding, provided to all other
regularly, for appellant to attend mandatory training that is the subject of this court’s
judgment. I stress that such funding was commonplace for Brooks County officials attending
mandatory training. And the movant representing the Texas attorney general’s office
presented evidence as well that defendant wrote to the attorney general complaining of this,
prior to the 270 day deadline to receive training for licensure (and this may be the best
evidence to review). Of note is the fact that appellant had already been through this same
academy years earlier and had obtained his license after such enrollment and completion of
academy training.
ISSUE 2
The government often utilizes motions such as this to prevent its opposition from
getting his day in court. What do they have to lose? When are they sanctioned for doing so?
Constable Soliz probably wins his jury trial on the merits in this case and the government is
aware of this. What jury would not apply common sense and heavy weight to the prohibition
appellant faced while trying to comply with training? This court has prevented such jury
reasoning. Not only does the government file frivolous motions to the government courts on a
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regular basis, but it simultaneously knowingly protects lawbreaking government agents from
exposure at trial under oath.
ISSUE 3
Appellant has raised due process as a violation below. Not only does appellant clearly
raise due process in his answer to the lawsuit, but the trial court preferred a hearing on this
motion and appellant raised all the issues expressed here and more at such hearing. Appellant
did so by way of explanation of his points in his response to the motion for partial summary
judgment. This discussion was recorded and has been provided to this court. But beyond
that, when is not ruling correctly on a motion for summary judgment, and not ruling correctly
therefor not providing a litigant with his properly requested jury trial, not a due process
violation? For this court to allow such a travesty is in and of itself a due process violation.
Appellate courts exist to rectify errors below and such is not occurring here. Appellant cannot
appeal what he has not seen yet, but such interpretation is a due process violation standing
alone.
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PRAYER
Wherefore, premises considered, Appellant prays that this motion for
rehearing be unconditionally granted, that this Court grant the relief sought or
set the matter for oral argument and after argument, reverse the judgment of the
court below and remand the case for trial on the merits.
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the attached and foregoing
document will be served on opposing counsel.
CERTIFICATE OF COMPLIANCE
The undersigned does hereby certify the word count in the body of this
brief to be well under the maximum limit and about 1,300 words.
Respectfully submitted,
/S/
/s/ Rick Soliz
T.B.N. 00785013
P.O. Box 4051
Houston, Texas 77210
713-228-1900
Pro Bono Attorney for Appellant
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