Shane Hawkins D/B/A Genesis II Church of Health and Healing Chapter 119 v. State ( 2018 )

Affirmed and Memorandum Opinion filed September 27, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00713-CV
SHANE HAWKINS D/B/A GENESIS II CHURCH OF HEALTH AND
HEALING CHAPTER #119, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Cause No. 2016-29921
MEMORANDUM OPINION
In this case under the Deceptive Trade Practices Act (“the DTPA”), appellant
Shane Hawkins d/b/a Genesis II Church of Health and Healing Chapter #119 appeals
the summary judgment and permanent injunction barring him from selling “MMS,”
which also is variously called “Miracle Mineral Solution,” “Master Mineral
Solution,” or “Miracle Mineral Supplement.” MMS is a sodium chlorite product
that when used as directed produces chlorine dioxide, a chemical used in
disinfectants and as an industrial bleaching agent. The Food and Drug
Administration warns that MMS poses significant health risks to humans when taken
at the doses recommended on the product’s label.
Hawkins promotes and sells MMS as a “health sacrament” of the Genesis II
Church, a “non-religious church” that is open to people that take the sacrament “no
matter what beliefs they may have.” Hawkins explains on his website that the church
teaches only the taking of its health sacraments, which he touts as a cure for 95% of
human diseases and conditions, including addiction, cancer, HIV, heart disease,
autism, and ebola. No medical research supports these claims. Hawkins holds
monthly “seminars,” styled as “Genesis II Church Sacraments: The Fundamentals
of MMS,” in which participants are taught to mix and consume MMS.
The trial court granted the State’s motion for traditional summary judgment
and permanently enjoined Hawkins and those in active concert or participation with
him, and their successors and assigns, from (a) promoting, marketing, selling,
offering for sale, advertising, or hosting events of any kind related in any way to
MMS, sodium chlorite, or chlorine dioxide; (b) promoting, marketing, selling,
offering for sale, advertising, or manufacturing any substance that is offered or
intended for use in treating a disease or condition of the human body unless the
substance has been legally approved by the Texas Food, Drug & Cosmetic Act;1 and
(c) promoting, marketing, selling, offering for sale, advertising, or manufacturing
any substance intended for use in treating a disease or condition of the human body
where the substance is adulterated or misbranded as defined in the Texas Food, Drug
& Cosmetic Act.
1
TEX. HEALTH & SAFETY CODE ANN. §§ 431.001–.460 (West 2017).
2
On appeal, Hawkins raises a variety of jurisdictional, legal, factual, and
procedural arguments. Finding no merit to these arguments, we affirm the trial
court’s judgment.
I. Issues Presented
Hawkins does not list the issues he presents for review, but so far as we can
discern, he makes the following arguments:
1. The trial court was required to rule upon Hawkins’s jurisdictional
challenge before any other action was taken;
2. the trial court lacked jurisdiction over the action;
3. the State was represented at trial by Harris County Attorney Vince Ryan
and Assistant County Attorney Rosemarie Donnelly, neither of whom are
licensed to practice law in Texas;
4. neither Ryan nor Donnelly has filed a valid oath of office or bond;
5. neither Harris County nor Ryan is authorized to act on behalf of the State
of Texas;
6. Hawkins is not doing business as Genesis II Church of Health and Healing
Chapter 119, and a church cannot be a “dba”;
7. there is no contract between Hawkins, on one hand, and opposing parties
and opposing counsel the State of Texas, Harris County, Harris County
Attorney Vince Ryan, or Assistant County Attorney Rosemarie Donnelly,
on the other hand;
8. no one has the right to prevent a church or its believers from teaching its
beliefs and offering its sacraments if the sacraments do not consist of
controlled or illegal substances;
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9. there is no evidence that any one has been injured by Hawkins or by
Genesis II Church’s teachings; and
10. he is entitled to judgment because the State’s brief was due on March 2,
2018, and the State waited until March 5, 2018, to request an extension of
time to file its brief.
II. Jurisdictional Arguments
We begin with Hawkins’s jurisdictional arguments. In the absence of subject-
matter jurisdiction, a trial court lacks authority to decide the case on the merits. See
Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 484 (Tex. 2018). The existence
of subject-matter jurisdiction is a question of law which we review de novo. Harris
County v. Annab, 547 S.W.3d 609, 612 (Tex. 2018).
Hawkins first argues that the trial court was required to rule on his
jurisdictional challenge before ruling on anything else. Although it is not clear when
or how Hawkins challenged the trial court’s jurisdiction, the record before us
demonstrates that the trial court expressly ruled on the matter in the only signed
order in the appellate record. In that order, the trial court expressly stated that it has
jurisdiction over the case, granted the State’s motion for final summary judgment,
and issued a permanent injunction against Hawkins. We overrule Hawkins’s first
issue.
In his argument that the trial court lacked jurisdiction over the action, Hawkins
contends that no court can determine for itself whether it has jurisdiction. Hawkins
is mistaken, for “[c]ourts always have jurisdiction to determine their own
jurisdiction.” Hous. Mun. Emps. Pension Sys. v. Ferrell, 248 S.W.3d 151, 158 (Tex.
2007).
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Hawkins also asserts that he is a bishop of Genesis II Church, and that both
he and the church are sovereign so that no court has jurisdiction over them. It is
well-established, however, that such “sovereignty” arguments are frivolous. Lewis
v. State, 532 S.W.3d 423, 430–31 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d)
(recounting that “sovereign citizens” share a common courtroom strategy of, among
other things, “arguing over the proper format and meaning of their names [and]
raising nonsensical challenges to subject matter jurisdiction”); Barcroft v. County of
Fannin, 118 S.W.3d 922, 926 (Tex. App.—Texarkana 2003, pet. denied) (explaining
that a person’s claim of “[sovereign] status is, at this point in our history,
imaginary”); see also See Ex parte Blakely, No. 02-17-00393-CR, 2018 WL
1191875, at *2 (Tex. App.—Fort Worth Mar. 8, 2018, pet. ref’d) (mem. op., not
designated for publication) (“Appellant argued that he is exempt from the
jurisdiction of the trial court because he is a sovereign citizen of the state. The law
is well-established that this argument is frivolous.”).
Hawkins further contends that the trial court lacked jurisdiction because there
is no evidence of damages in excess of $500. See TEX. GOV’T CODE ANN.
§ 24.007(b) (West Supp. 2017) (“A district court has original jurisdiction of a civil
matter in which the amount in controversy is more than $500, exclusive of
interest.”). But, the district court’s jurisdiction in this case is not dependent on the
amount in controversy because the case was brought under the DTPA. See TEX.
BUS. & COM. CODE ANN. §§ 17.41–.63 (West 2011 & Supp. 2017). The DTPA
states,
Whenever the consumer protection division has reason to believe that
any person is engaging in, has engaged in, or is about to engage in any
act or practice declared to be unlawful by this subchapter, and that
proceedings would be in the public interest, the division may bring an
action in the name of the state against the person to restrain by
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temporary restraining order, temporary injunction, or permanent
injunction the use of such method, act, or practice.
Id. § 17.47(a). Acts that are unlawful under the DTPA and that have been alleged
in this case include representing that goods or services have characteristics, uses, or
benefits that they do not have, and “failing to disclose information concerning goods
or services which was known at the time of the transaction if such failure to disclose
such information was intended to induce the consumer into a transaction into which
the consumer would not have entered had the information been disclosed.” See id.
§ 17.46(b)(5), (b)(24). The DTPA expressly authorizes a district or county attorney
to institute and prosecute a suit for injunctive relief to restrain such practices. Id.
§ 17.48(b). The district court’s jurisdiction over such a suit for injunctive relief is
not dependent on allegations or proof that a particular individual has sustained
damages. See id. § 17.47(a).
Here, the suit was filed on behalf of the State of Texas by Vince Ryan in his
capacity as the County Attorney of Harris County, acting through Rosemarie
Donnelly, the Assistant County Attorney. As permitted by the statute, the action
was brought in the district court of the county where the defendant has done business.
Id. § 17.47(b). The suit was brought as authorized by the DTPA, and the trial court
had subject-matter jurisdiction to adjudicate the claims presented.
We overrule Hawkins’s second and ninth arguments.
III. Opposing Counsel’s Authority
In issues three through five, Hawkins challenges opposing counsel’s
qualifications or authorization to bring this suit.
Hawkins asserts in his third issue that neither Ryan nor Donnelly are licensed
to practice law in this state. We may judicially notice whether a person is licensed
to practice law in Texas. Hunnicutt v. State, 531 S.W.2d 618, 623 (Tex. Crim. App.
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1976), overruled on other grounds by Hurley v. State, 606 S.W.2d 887 (Tex. Crim.
App. 1980); Landale v. Villamil, 813 S.W.2d 187, 190 (Tex. App.—Houston [14th
Dist.] 1991, no pet.). As their titles indicate and the State Bar of Texas confirms,
Harris County Attorney Vince Ryan and Assistant County Attorney Rosemarie
Donnelly are attorneys licensed to practice law in this state.2 We overrule Hawkins’s
third issue.
In his fourth issue, Hawkins asserts that neither Ryan nor Donnelly has taken
an oath of office or filed a bond. See TEX. CONST. art. XVI, § 1 (requiring oath of
office); TEX. GOV’T CODE ANN. § 45.001 (West 2004) (county attorney must execute
bond payable to the governor conditioned on attorney’s paying over all money
received for a county or the state); id. § 41.104 (prosecuting attorney may require
assistant prosecuting attorneys to execute a bond). This argument was not raised in
the trial court, and thus, there is no evidence in the appellate record to support this
contention. We accordingly overrule Hawkins’s sixth argument. Cf. Davis v. State,
227 S.W.3d 766, 768 (Tex. App.—Tyler 2005) (refusing to address argument raised
for the first time on appeal that the county attorney had not taken oath of office at
the time of appellant’s conviction), aff’d, 227 S.W.3d 733 (Tex. Crim. App. 2007).
Hawkins asserts in his fifth issue that neither Harris County nor Ryan is
authorized to act on behalf of the State of Texas. The contention that a suit is being
prosecuted or defended without authority must be raised by a sworn motion, and the
moving party must set it for a hearing. TEX. R. CIV. P. 12. Because the record does
not show that these requirements were met, we overrule Hawkins’s fifth issue.
2
See Find a Lawyer, STATE BAR OF TEXAS, https://www.texasbar.com/ (last visited Sept.
25, 2018).
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IV. Hawkins’s Capacity
In his sixth issue, Hawkins asserts that he is not doing business as Genesis II
Church of Health and Healing Chapter 119. This appears to be a challenge to the
capacity in which Hawkins was sued, and such a challenge must be raised in a
verified answer. See TEX. R. CIV. P. 93. Because Hawkins did not file a verified
answer challenging capacity, this argument has not been preserved for our review.
See TEX. R. APP. P. 33.1(a).
In a related argument, Hawkins contends that a church cannot be a “dba.”
Hawkins cites no authority for this assertion. Moreover, it is well-established that a
person may do business under an assumed name. See TEX. R. CIV. P. 28
(“Any . . . individual doing business under an assumed name may sue or be sued in
its . . . assumed or common name . . . .”). This is true even if the assumed name
includes the word “church.” See, e.g., Bonner v. Austin, No. 01-09-01059-CV, 2012
WL 3038511, at *1, *4 n.5 (Tex. App.—Houston [1st Dist.] July 14, 2012, no pet.)
(per curiam) (mem. op.). (judgment partly for and partly against “Feldon Bonner, II,
individually and d/b/a Powerhouse Ministry/Church”); Johnson v. Direct Lending
Grp., Inc., No. 05-07-01503-CV, 2010 WL 3749481, at *1 (Tex. App.—Dallas Sept.
28, 2010, no pet.) (per curiam) (mem. op.) (dismissing appeal by “J. Wayne Johnson
d/b/a New Community Baptist Church of Dallas County Texas” due to Johnson’s
bankruptcy); First Assembly of God, Inc. v. Tex. Utils. Elec. Co., 52 S.W.3d 482,
482 (Tex. App.—Dallas 2001, no pet.) (appeal filed by “First Assembly of God, Inc.
d/b/a Assembly of God Church”). We overrule Hawkins’s sixth issue.
V. Absence of a Contract
In his seventh issue, Hawkins contends that he has no contract with the State
of Texas, Harris County, Ryan, or Donnelly. Elsewhere in his brief, he additionally
asserts that there is no contract between himself and Genesis II Church. But, this is
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not a contract action, and no one has alleged the existence of a contract between
Hawkins and any other person or entity. Because we cannot divine the significance
of these assertions and Hawkins has not explained them, his seventh issue presents
nothing for our review.
VI. Availability of Injunctive Relief
Hawkins maintains in his eighth issue that no one has the right to prevent a
church or its believers from teaching its beliefs and offering its sacraments so long
as the sacraments are not controlled or illegal substances. We construe this as a
challenge to the trial court’s grant of its final summary judgment and permanent
injunction, which prohibits Hawkins from (a) promoting, marketing, selling,
offering for sale, advertising, or hosting events of any kind related in any way to
MMS, sodium chlorite, or chlorine dioxide; (b) promoting, marketing, selling,
offering for sale, advertising, or manufacturing any substance that is offered or
intended for use in treating a disease or condition of the human body unless the
substance has been legally approved by the Texas Food, Drug & Cosmetic Act; and
(c) promoting, marketing, selling, offering for sale, advertising, or manufacturing
any substance intended for use in treating a disease or condition of the human body
where the substance is adulterated or misbranded as defined in the Texas Food, Drug
& Cosmetic Act.
To prevail on a traditional motion for summary judgment, the movant must
show that there is no genuine issue of material fact and that it is entitled to judgment
as a matter of law. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,
215–16 (Tex. 2003). We review a summary judgment de novo, construing the
evidence in the light most favorable to the non-movant by crediting evidence
favorable to the non-movant if a reasonable juror could and disregarding contrary
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evidence unless a reasonable juror could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
As previously discussed, the State brought this action in the public interest
pursuant to the DTPA. The State alleges that Hawkins has engaged in false,
misleading, and deceptive acts and practices by, among other things, representing
that MMS has benefits it does not have and by inducing consumers into transactions
by failing to disclose the health risks of ingesting MMS as directed and the absence
of medical research supporting his claims about MMS’s health benefits. The State’s
summary-judgment motion was supported by evidence that the federal Food & Drug
Administration (“the FDA”) issued the following “safety alert” concerning MMS on
July 30, 2010:
[The] FDA warned consumers not to consume or use Miracle
Mineral Solution, an oral liquid solution also known as “Miracle
Mineral Supplement” or “MMS.” The product, when used as directed,
produces an industrial bleach that can cause serious harm to health. The
product instructs consumers to mix the 28 percent sodium chlorite
solution with an acid such as citrus juice. This mixture produces
chlorine dioxide, a potent bleach used for stripping textiles and
industrial water treatment. High oral doses of this bleach, such as those
recommended in the labeling, can cause nausea, vomiting, diarrhea, and
symptoms of severe dehydration.
In a subsequent “consumer update,” the FDA added that one person had a life-
threatening reaction after drinking MMS, but that some MMS labels claimed that
reactions such as vomiting and diarrhea instead were “evidence MMS is working.”
The FDA further stated,
FDA experts say MMS is dangerous, and they’re advising consumers
to stop using the product immediately.
....
Some distributors claim MMS mixed with citric acid is an
antimicrobial, antiviral, and antibacterial liquid that is a remedy for
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colds, acne, cancer, HIV/AIDS, hepatitis, H1N1 flu, and other
conditions. But FDA experts say they aren’t aware of any research that
shows the product can effectively treat any illnesses.
The State produced evidence that Hawkins is promoting and selling MMS to
be ingested as a miracle cure, and he states on his website that “[s]ome people, with
little understanding, say MMS is bleach. MMS is not bleach . . . .” According to
the evidence that the State obtained from Hawkins’s website, Hawkins teaches the
administration of the “sacrament” of MMS in his “Minister of Health & Healing
Training Course.” Hawkins states, “Those who finish this course know how to fix
95% of the diseases of mankind.” He represents on his website that those who take
the course can legally use the title “Reverend,” and after “treating and recording
info. for 50 people, you can be awarded a ‘Doctor of MMS’” and use the title
“Doctor.” Hawkins further represents that “Genesis II Church Care of Health” is
superior to health insurance, and that MMS’s “side effects” of nausea, diarrhea, and
flu-like symptoms “are due to ‘die off’ of pathogens and too many toxins entering
the blood too quickly.” Hawkins does not disclose that there is no known medical
research that MMS is effective in treating any of the diseases he claims. In sum, the
State’s summary-judgment evidence supports the trial court’s rendition of judgment
and its issuance of the permanent injunction at issue.
The State’s evidence is uncontroverted because Hawkins failed to timely
respond to the summary-judgment motion. Except on leave of court, the respondent
to a summary-judgment motion must file and serve a response and any evidence
seven days before the hearing on the motion. TEX. R. CIV. P. 166a(c). Hawkins filed
his summary-judgment response five days before the hearing. Because the record
does not show that the response was filed with leave of court or otherwise indicate
that the trial court considered it, we similarly do not consider Hawkins’s untimely
response and evidence. See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663
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(Tex. 1996); Tex. Windstorm Ins. Ass’n v. Dickinson Indep. Sch. Dist., No. 14-16-
00474-CV, __S.W.3d__, 2018 WL 2436924, at *6 (Tex. App.—Houston [14th
Dist.] May 31, 2018, no pet).
Because the State established its right to the relief awarded and Hawkins failed
to timely respond with evidence raising a genuine issue of material fact, we overrule
Hawkins’s eighth issue.
VII. Alleged Procedural Default on Appeal
In his final issue, Hawkins contends he is entitled to judgment because the
State’s appellate brief was due on March 2, 2018, and the State waited until March
5, 2018, to request an extension of time to file it. Hawkins cites no authority that the
State’s failure to timely request an extension to file an appellate brief is grounds for
reversing an otherwise-correct judgment. Moreover, the State’s request for an
extension was not untimely; a party may move to extend the time for filing a brief
before or after the brief is due. See TEX. R. APP. P. 38.6(c). We granted the State’s
timely motion for an extension of time to file its brief. Thus, we overrule Hawkins’s
tenth issue.
VIII. Conclusion
Having overruled all of the arguments we have gleaned from Hawkins’s brief
and that have been preserved for review, we affirm the trial court’s judgment.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Jamison, and Brown.
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