Raghunath Dass, P.E. v. Texas Board of Professional Engineers ( 2015 )

ACCEPTED
03-14-00552-CV
5436756
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/27/2015 2:53:47 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00552-CV
IN THE COURT OF APPEALS FILED IN
FOR THE THIRD JUDICIAL DISTRICT AT AUSTIN, 3rd COURT
TEXAS OF APPEALS
AUSTIN, TEXAS
___________________________________5/27/2015 2:53:47 PM
JEFFREY D. KYLE
RAGHUNATH DASS, P.E., Clerk
Appellant,
v.
TEXAS BOARD OF PROFESSIONAL ENGINEERS,
Appellee.
___________________________________
On Appeal from the
201st Judicial District Court, Travis County, Texas
___________________________________
MOTION TO STRIKE APPELLANT’S EXHIBIT 7
_____________________________________
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
Now comes Appellee, Texas Board of Professional Engineers (“Board”), and
files this Motion to Strike Appellant’s Exhibit 7 and would show as follows:
I. INTRODUCTION
When appellant Raghunath Dass, P.E., (“Mr. Dass”) filed his appellant’s brief
with the Court he attached several documents as his appendix. One of the documents,
Exhibit 7, is not part of the administrative record in the instant matter; and the Board,
therefore, asks the Court to strike this document.
II. ARGUMENT AND AUTHORITY
A. The Administrative Record in this proceeding does not contain
Exhibit 7.
As explained in the Board’s Brief, the administrative record for the suit for
judicial review underlying the instant case contains only the following four
documents: (1) Board’s Amended Final Order; (2) Respondent’s Motion for
Rehearing; (3) Staff Memorandum to Board Members on Motion for Rehearing; and
(4) Notice to Respondent Overruling Motion for Rehearing. These documents were
provided to the Court by the district clerk. Appellee’s Br. 14-15.
In the district court case, Mr. Dass filed a motion seeking to have the Board
file with the district court the transcript from the contested case hearing underlying
the first suit for judicial review. See Mot. for Def. to File SOAH Tr. with Dist. Clerk,
dated Apr. 21, 2014, C.R. at 59-61. The Board opposed this motion. C.R. at 99-202.
The transcript was not part of the administrative record, and the district court properly
granted the Board’s motion to strike these documents.
The district court denied both Mr. Dass’s motion to supplement the record with
the SOAH transcript and PFD and his supplemental motion seeking the same
supplementation. C.R. at 316, 318. The court also granted the Board’s Amended
Motion to Strike. C.R. at 317.
Page 2 of 5
Mr. Dass then filed a bill of exception, seeking to have this Court determine
whether the administrative record in the first suit could be considered by the Court.
Supp. C.R. II at 12-13.
B. A court may not consider documents not part of the clerk’s record.
A court may not consider documents that are not part of the clerk’s record. See,
e.g., Barker CATV Const. v. Ampro, Inc., 989 S.W.2d 789, 795-96 (Tex. App.—
Houston [1st Dist.] 1999, no pet.) (concluding that the court may not consider
documents that are not part of the clerk’s record); Tex. R. App. P. 34.
C. The Court would first have to rule on the district court’s excluding
the transcript, but this issue has been waived.
As noted in the Board’s brief, Mr. Dass failed to brief his issue regarding the
exclusion of evidence. Appellee’s Br. 43. Thus, Mr. Dass waived the issue of whether
the trial court erred in excluding the transcript, and the transcript is not properly
before the Court.
III. PRAYER
The Board respectfully requests that its Motion to Strike Exhibit 7 be granted.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
Page 3 of 5
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation
DAVID A. TALBOT, JR.
Chief, Administrative Law Division
/s/Jennifer L. Hopgood
Jennifer L. Hopgood
Assistant Attorney General
State Bar No. 24073010
OFFICE OF THE ATTORNEY GENERAL OF
TEXAS
Administrative Law Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 936-1660
Facsimile: (512) 320-0167
jennifer.hopgood@texasattorneygeneral.gov
ATTORNEY FOR APPELLEE,
TEXAS BOARD OF PROFESSIONAL
ENGINEERS
Page 4 of 5
CERTIFICATE OF CONFERENCE
I certify that I have conferred with Jimmy Alan Hall by telephone on this day,
May 27, 2015, and he is opposed to withdrawing the exhibit that is the subject of this
motion to strike.
/s/Jennifer L. Hopgood
JENNIFER L. HOPGOOD
Assistant Attorney General
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and forgoing
document has been served by e-service on this date, the 27th day of May 2015, on
the following:
Jimmy Alan Hall
JIMMY ALAN HALL, P.L.L.C.
4600 Mueller Boulevard, Suite 2121
Austin, TX 78723-3372
Facsimile: (512) 857-9195
jahall@fbjah.com
J. Woodfin Jones
ALEXANDER DUBOSE JEFFERSON
& TOWNSEND LLP
515 Congress Avenue, Suite 2350
Austin, Texas 78701-3562
Facsimile: (512) 482-9303
wjones@adjtlaw.com
Counsel for Appellee
/s/Jennifer L. Hopgood
JENNIFER L. HOPGOOD
Assistant Attorney General
Page 5 of 5