in Re David Allan Edwards

August 21/2015
Fourth Court of Appeals
Deputy Clerk, r,Uz Rstrada I 3219
RK: Piling Of Mandamus
Dear Deputy Clerk Rstrada
°lease find enclosed my Mandamus for filing. There is a copy
for stamping and returning to me via the provided SASE. If there
is anything else I need to do please contact me. Thank you for
your help in this matter.
Respectfully yours
David A. Edwards a 907246
Pla inti ff, pro se
Ellis Hnit, 1"7 FM QRO
Huntsville, Texas 77343
c/c file
Civil Action No: 12-02-0185-CVA
on
David Allan Edwards I 907246 £ " ^a
Ellis Unit, 1697 FM 980 c*3
___„_ - In The Court of App"lS of She 5f
Huntsville, Texas 77343 ? ;»*
Fourth Supreme
Plaintiff § of Texas
~V~ AND
5
County Court of Commissioners, _ _, on t/-n o*.u t j- ■ n
In The Rlst/21Rth Judicial
Atascosa County, Texas _. . .
1 c District Court, Atascosa
§
Defendant[s] County, Texas
HflNDAHUS TO COMPEL FOR PERFORMANCE OP PROCESS FOR A JODGEMENT
FOR ACCEPTED SERVICE AND APPEARANCE, PURSUANT TO TRCP, 15,21,
21a,99,103,106,107,119,120a,121, 122
AND
FOR N0-AN5WER SUMMARY JUDGEMENT WITH 5EVERF.NCE, PURSUANT TO,
41, 166aCc),237,237a,239,240,26«
FOR DEFENDANT[S] COUNTY COURT OF COMMISSIONERS, ATASCOSA COUNTY
TEXAS
To Honorable Judges of Said Court,
Paupers Oath, I DAVID ALLAN EDWARDS, have no material wealth,
no money and no income from any source to pay fees or cost,
attorney,etc. See TRCP 145, who is incarcerated and pro se liti
gant, see Armstrong 8P1 S.W. 2nd at 53, as a pro se litigant T am
subject to " less stringent standards than formal pleadings draft
ed by real lawyers." See Spellman 819 S.W. 2d at 206.
Writ of Mandamus is proper remedy when District Judge fails
to rule, it arbitrarily becomes a refusal to rule on Plaintiffs
Motion to Compel Judgement and Motion for No-Answer Summary
Judgement for defendants County Court of Commissioners of Atascosa
County, Texas. Hearing Courts failure to consider and rule on
this motion properly filed and served upon defendants/ see exhibit
"A" is a failure to exercise its authority when it has a duty
to do so.
In Re Bonds 57 S.W.3d at 456 (Tex-App-San Antonio,2001) " A
trial court is required to consider and rule upon a motion within
a reasonable time." Safety-Kleen Corp V Garcia 945 S.W. 2d at
268-269 ( Tex-App-San Antonio 1997) " When a motion is properly
filed and pending before a trial court, the act of giving con
sideration to and ruling upon that motion is a ministerial act,
and Mandamus may issue to compel trial judge to act."
Plaintiff filed his original Due Course of Law Complaint February
28, 2012 and timely served defendants. On April 5, 2012 plaintiff
filed a Supplement 69,80 adding defendants County Court of Comm
issioners, properly serving them with certified mail receipt.
See exhibit "A" attachment exhibit "A". There have been three
hearings and defendants have not made an appearance or have
not filed any answer after being properly served by certified
mail. see exhibit "A" attachment exhibit "A". At last hearing
on May 9, 2014 plaintiff requested hearing Judge Thomas F. Lee
to make a ruling concerning the defendants County Court of Comm
issioners. Hearing judge just stated he wasn't there to rule
(2)
on that and had no knowledge of anything concerning them. Plain
tiff timely filed and served a No-Answer Summary Judgement on
8/1/2013,see exhibit "A" attachment exhibit "C" and "D"clerks
index. This No-Answer Summary Judgement was signed for as defen
dants have had every opportunity to file an answer and have
failed to defend themselves. The Hearing Court has had every
opportunity to rule on this motion as it was filed 8/1/2013.
II
See exhibit "A", attachment "B" page 9, last paragraph. This
document was filed by County Attorney of Atascosa, Mr. Dennis
Arriaga, in The Fourth Court of Appeals, San Antonio, Texas.
Mr. Arriaga for what ever reason felt the need to include this
Appearance/Excuse for the defendants County Court of Commissioners
of Atascosa. This constitutes an appearance in a Texas Court
of Law. This confirms the facts A) they were served,B) They
were aware they were defendants in a suit/C) They had a legal
obligation/responsibility by statute to either object to the
alleged improper service with a Motion to Quash within 20 days
of service improper or not, or waive their right to complain,D)
By this admission and written and filed declaration in a Texas
Court of Law Mr. Arriaga, has taken it upon himself to both
make an appearance for the County Court of Commissioners of
Atascosa and represent them. "A general denial of a alleged
improper service as defense."
Burger V Burger 298 S.W.2d at 119,156." A special appearance is -
unknown to Texas practice and the filing by a defendant of any
(3)
defensive pleading/ though it be only for the purpose of chal
lenging the jurisdiction of the court, constitutes an appearance
and a submission to the jurisdiction of the court for all pur
poses . "
This pleading can be termed a defensive explanation by Mr. Arriaga
and by doing so submits the defendants County Court of Commissio
ners to the jurisdiction of hearing court and any other court
for all purposes. Cotton V Cotton 57 S.W.3d at 506,Constitutes
an answer or appearance with this defensive theory or pleading.
Plaintiff pursuant to TRCP 99,106(2),"mailing to the defendant
by registered or certified mail,return receipt requested, a
true copy of the citation with a copy of the petition attached
thereto." Tx.Civil.Prac.Statute,$136.001 (certified mail). See
exhibit "A",attachment "A" certified receipts, signed by the
defendants or their agents, which satisfys TRCP 107 "return
of service (ll)(c)."
Rule 502.5 Answer, which defendant County Court of Commissioners
failed to comply with. Rule 503.1, If defendant fails to answer,
(a) Default Judgement,"If defendant fails to file an answer
by the date stated in Rule 502.5, the judge must ensure that
service was proper, and may hold a hearing for the purpose.
If it is determined that service was proper, the judge must
render a default judgement." See Rule 503.1.
The law and rules are clear on this issue and plaintiff has
shown due diligence in pursuing these rulings from hearing court.
Plaintiff request through Mandamus that This Court renderjudge-
(4)
ment for No-Answer Summary Judgement and make ruling on Appearance
or make an order for Hearing Court to fulfill its legal obliga
tion by doing same as law and statute dictate. Celotex Corp V Cat-
rett, 477 U.S. 317,322. 106 S.Ct. Entitled to judgement as a mat
ter of law. See Chesser V McNabb/619 S.W.2d at 420, Loe V Murphy,
611 S.W.2d at 449.
Defendants have failed in all respects to file anything remotely
answering to the merits of plaintiffs complaint. The hearing
court has failed in all respects to adhere and to comply with
normal law and statute. It has been more than 30 days since
last hearing.
PRAYER
WHEREFORE premises considered plaintiff prays this Honorable
Court GRANT this WRIT OF MANDAMUS and GRANT No-Answer Summary
Judgement in favor of plaintiff giving plaintiff all the relief
entitled to, cost of court,past expenses and attorney fees.
If not then GRANT ORDER for hearing court to hold hearing on
the pleadings in a reasonable time and have plaintiff present
for hearing. Plaintiff also prays that this Honorable Court
allow plaintiff to correct any defects within this pleading
if necessary before ruling.
Respectfully submitted
David Allan Edwards # 907246
Plaintiff,pro se
Ellis Unit, 1697 FM 980
Huntsville, Texas 77343
(5)
DECLARATION
I DAVID ALLAN EDWARDS/declare under penalty of perjury, pursuant
to § 132.001 and TRCP Codes, that I have read and subscribe
to the above and I swear that the information contained therein
is true and correct to the best of my knowledge.
Executed on 'Ql" (S ,at the Ellis Unit, Huntsville, Texas
CERTIFICATE OF SERVICE
I DAVID ALLAN EDWARDS,hereby certify under penalty of perjury
that a true and correct copy of the WRIT QP MANDAMUS, has been
provided to the below listed parties by placing said motion
in an envelope sending it USPS certified mail with reciept requ
ested on this day J(^ of ^3Xa3T" 2015.
County Court of Commissioners
Courthouse, suite 102
One Courthouse Circle Dr.
Jourdanton, Texas 78026
Respectfully submitted
A A-
David Allan Edwards # 907246
Plaintiff, pro se
Ellis Unit, 1697 FM 980
Huntsville, Tx 77343
(6)
EXHIBIT
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FILEf O'CLOCK_niM
OCLOCK_iM
Civil Action No; 12-02-0185-CVA ^/ARGARET E. LITTLETON,
ON DISTRICT
DISTRICT CLERK
2 2 2015
David Allan Edwards #907246
Ellis Unit,1697 FM 980
Huntsville, Texas 77343 CLERK DC
BY_
Plaintiff
In The 81st/218th
-V-
Judicial Dist. Court
Atascosa County, Texas
County Court of Commissioners
of Atascosa County, Texas
Defendant's
MOTION TO CCMPEL JUDGEMENT
FOR ACCEPTED SERVICE AND APPEARANCE, PORSOANT TO T.R.C.P. 15,21,21a,
99,103,106,107,119,120a,121,122
AND
FOR NO-ANSWER DEFAULT AND/OR SUMMARY JODGEMENT WITH SEVERENCE,RORSOANT TO,
41,166a(c),237,237a,239,240,268
FOR DEFENDANT'S, COUNTY COURT OF COMMISSIONERS, ATASOOSA COUNTY, TEXAS
See exhibit "B» appeal filed by County Attorney of Atascosa, Mr. Dennis
Arriaga, in the Fourth Court of Appeals, San Antonio, Texas. Expressly see
page 9, last paragraph. For what ever reason Mr. Arriaga felt the need to
include this APPEARANCE/EXCUSE for defendant's County Court of Commissioners
of Atascosa in this bi-line both including the facts that defendant's had
been served and in doing so making air appearance in a Texas Court of law.
This appeal filed by Mr. Arriaga, and the defendant Sheriff had nothing to
do with the other defendant's County Court of Commissioners of Atascosa.
That stated/ the usual and accepted practice is that the County Attorney,
represent County entities, such as Sheriff's and County Court of Commissioners.
No matter what faux disclaimers and artfully crafted excuses Mr. Arriaga,
uses to disguise this explanation on behalf of defendant's County Court of
Commissioners/ the fact remains this by Texas Law confirms an Appearance.
This also confirms the facts (A) they were served, (B) They were aware they
were defendant's in a suit,(C) They had legal obligation/responsibility
by statute and law to either object to the alleged improper service with
a Motion To Ouash within 20 days of service proper or not,or waive their
right to complain,(D) By this admission and written and filed declaration
in a Texas Court of Law, Mr. Arriaga, has taken it upon himself to both repre
sent defendant's County Court of Commissioner's of Atascosa County, and make
an appearance with his faux answer of general denial of a alleged improper
service as defense. The law is clear and concise on this issue and will
explain as follows.
Burger V Burger 298 s.W.2d at 119,156, - a special appearance is unknown
to Texas practice, and the filing by a defendant of any defensive pleading,
though it be only for the purpose of challenging the jurisdiction of the
court, constitutes -an "APPEARANCF;" and a submission to the jurisdiction of
the court for all purposes."
The pleading as it can be termed in exhibit (B) on page 9 can be construed
and termed a defensive explanation by Mr. Arriaga and the defendant's County
Court of Commissioners and by doing so submitting to the jurisdiction of
hearing court and any other court for all purposes. This constitues an appea
rance and pleading in substance and form and should be recognized as such.
Cotton V Cotton 57,S.W.3d at 506,Constitutes an answer or appearance.
(2)
Defendant complains about alleged improper service. The law is clears this.
TRCP 15/Writs S Process
Williams V Williams 150 S.W.3d at 436,445/" [W]e hold that citations must be
expressly directed to the defendant under TRCP 99 and may also be addressed
to the Sheriff or Constable under TRCP 15,BUT FAILURE TO INCLUDE THE SHERIFF
OR CONSTABLE ON THE FORM OF CITATION WILL NOT RENDER IT VOID", See also
Barker CATV Constr,Inc V Ampro/Inc 989 S-W 2d at 789,792.
Plaintiff pursuant to TRCP 99,106(2),"mailing to the defendant by registered
or certified mail,return receipt requested, a true copy of the citation with
a copy of the petition attached thereto." Tx.Civil.Prac.Statute,$136,001
(certified mail).See exhibit "A"pages 2 and 3,certified receipts signed by
defendant's or their agents, which satisfy's TRCP 107 return op SERVICE (ll)(c)
When the citation was served by registered or certified mail as authorized
by Rule TRCP 106,The return by the officer or authorized person must also
contain the return receipt with the addressee's signature." See exhibit "A",
pages 2 and 3,return receipt green card,top right hand corner. This satisfy's
the requirements for proper and accepted service of citation. Defendant's
County Court of Commissioner's by and through County Attorney Mr. Arriaga,
and his filing of appeal in the Fourth Court of Appeals satisfy's the standards
for Appearance in a court of law. See exhibits "A","B","C","D".
The excerpt in exhibit "B" on page 9, constitutes an appearance and explana
tion or defensive theory by defendant's County Court of Commissioners. This
admission of alleged improper service cannot be construed any other way.
The defendant admits service but complains it was not properly served. The
law and statute is clear as once service defective or not is established,the
burden falls upon the defendant to notify the court. Motion to Quash Service.
(3)
See TRCP 119," The defendant accepts service of process,(See exhibit "A",cert
ified receipts green cards) or waives the issuance of service thereof by
a written memorandum signed by him,or by his duly authorized agent or attorney
,after suit is brought/ sworn to before a proper officer other than an attor
ney in the case, and filed among the papers of the cause, and such waiver
or acceptance shall have the same force and effect as if the citation had
been issued and served as provided by law." See exhibit "B" page 9,Waiver
by defendant County Court of Commissioners, by and through the County Attorney
Mr. Arriaga, claiming improper service and lack of jurisdiction. This by
any reasonable person can be construed as an appearance in a court of law.
See TRCP,Rules and Statutes 120,120a,121,122.
Rule 502.5 Answer,which defendant County Court of Commissioners failed to com
ply with. Rule 503.1, If Defendant fails to answer.(a) Default judgement, " If
defendant fails to file an answer by the date stated in Rule 502.5, the Judge
must ensure that service was proper, and may hold a hearing for the purpose.
If it is determined that service was proper, the Judge must render a default
judgement." See Rule 503.1
Plaintiff request that this court to either render judgement for No-Answer
Default against the defendant County Court of Commissioners or hold a hearing
on the premise of proper service as cited and demanded by law and statute
contained within this pleading. Plaintiff also request to be present at said
hearing in person and will make objection to any further or future hearings
held by phone as it creates a bias and prejudice against Plaintiff to have any
real time ability to participate in the hearing. Plaintiff request the follow
ing dates for hearing. May 9,2015,June 16,2015,June 23,2015. Let this be noti
ce Of hearing dates for defendant County Court of Commissioners.
(4)
II
Plaintiff filed his original Due Course of Law Complaint on Feb 28,2012 and
timely served defendant's. On April 5,2012 Plaintiff filed Supplement 69,80,
adding defendant's County Court of Commissioners and Doctor of jail. On
April 17/ 2012 defendant County Court of Commissioners signed for service,see
exhibit "A" page 2. On October 24,2012 this cause was remanded back to State
District Court from Federal Court. Plaintiff timely served defendant County
Court of Commissioners with Reinstatement.See exhibit "A" page 3. This service
was signed for on October 25,2012 by defendant.Defendant County Court of
Commissioners was also served a Notice of Default on October 26/2012 for
failure to make an appearance in Federal Court,see exhibit "A" page 4,signed
certified receipt by defendant.
On December 12, 2012 Administrative Judge Thomas F. Lee was appointed to
over see this cause. The first hearing was held on April 17, 2013. Defendant
County Court of Commissioners had not at this time made any appearance or
filed any answer. On August 1,2013 Plaintiff filed another No-Answer Default
serving defendant County Court of Commissioners.see exhibit "C" signed cert
ified receipt and motion- No response was ever made by defendant. On Septem
ber 26,2013 there was another hearing held. No appearance or answer was made
by defendant County Court of Commissioners. There was no attempt by hearing
court to address any motions concerning defendant in question. There was
another hearing held on May 9, 2014 at the Atascosa Jail Facility. Defendant
County Court of Commissioners failed to make any appearance or file any answer.
There is no record of any filing contained in the District Clerks index.see
exhibit "D". On or around January 20,2015 defendant County Court of Commis
sioners made an appearance in the Fourth COA,by and through County Attorney,
(5)
Mr. Dennis Arriaga,see exhibit "B" page 9,bottom paragraph establishing an
appearance in a court of law.
A No-Answer Default judgement can be rendered when the defendant does not
file an answer. The court may render a default judgement on the pleadings
against a defendant that has not filed an answer,see TRCP 239 and exhibit
"A", "B'V'C'VD",clerks index as nothing has been filed by defendant County
Court of Commissioners as of the filing of this motion for No-Answer Default.
All allegations of facts including those establishing liability in the Plain
tiff's petition are deemed admitted except for the amount of unliquidated
damages,Dolgencorp,228 S.W.3d at 930,see TRCP 243.
More than 20 days have elapsed since the date on which the defendant's herein
were served with a copy of Plaintiff's Reinstatement by certified mail,TRCP
106,107, and No-Answer defaults,see exhibits "A","C". The defendant's have
failed to appear at any hearing held in this cause, the last being held on
May 9,2014. The defendant's did however make an appearance on or around
January 20, 2015 in the Fourth Court of Appeals, by and through the County
Attorney, Mr. Dennis Arriaga, confirming the fact that defendant was served
and had knowledge of the claims against them but,willing and knowingly refused
to file any answer or present any defense until this apearance, using the
defensive theory of faulty service and lack of jurisdiction. That said,
the time has passed for defendant to present any answer as after 20 days
of faulty service or not,defendant had an obligation to file with the court
a notice of this alleged faulty service. Defendant has now waived his right
to complain and this appearance has become an admission of service,knowledge
of being a defendant in a suit and an appearance giving the court the juris
diction to rule on this No-Answer Default.
(6)
The statute and law designed to "Pierce the Pleadings " No-Answer default,
TRCP 239, is clear and consice also along with TRCP 237a,"Remand After Rein
statement" 15 days to file answer. See HBA.E.,Ltd V JEA Boxing Co.796 S.W.26
at 534/538/ is also clear and concise. Hearing Court and Judge Lee, has a
duty to hold a hearing and rule as law and statute dictate or continued Due
Process violations are happening out of this court creating a continued bias
or prejudice denying Plaintiff his 14th Amendment Right to a fair and impart
ial review and Due Process of Law.
Plaintiff has duly filed all pleadings and properly served defendant's County
Court of Commissioners. See exhibits "A","B","C","D". It is TO LATE for defen
dant to file any answer or for any answer to be allowed. See Matter of Pancake
106 F.3d at 1242 (5th) "Under Texas Law where No Answer is filed defendant
is deemed to admit plaintiff's pleadings and, thus judgement maybe entered
based upon those pleadings." Stoner V Thomson,578 S.W.2d at 679,682/"Defen
dant who neither answers nor appears has "ADMITTED" the facts properly pled
and the justice of the opponents claims" TRCP 166a(i).
On April 5/2012 when Plaintiff filed Supplement 69,80 adding defendant's
Doctor of jail and County Court of Commissioners. Plaintiff used same method
of proper service by certified return. The defendant Doctor had no problem
with the service or did court have any problem identifying jurisdiction to
render judgement concerning defendant Doctor. Plaintiff used same method
of proper service of certified return with Remand Reinstatement on all defen
dants. All defendants had NO PROBLEM with service and Hearing Court had no
problem establishing jurisdiction to render judgements concerning these defen
dants. Defendant County Court of Commissioners are not above the law and
Hearing Court has a duty to render judgement in favor of Plaintiff-See Celotex
Corp V Catrett,477/U.S.317,322,106 s.Ct,"Entitled to judgement as a matter of
(7)
law." See Chesser V McNabb,619 S.W.2d at 420, Loe V Murphy,611 S.W.2d at 499.
Defendants have failed in all respects to file anything remotely answering
to the merits of Plaintiffs complaint. It has been more than 30 days since
the last hearing held on May 9, 2014. This Court has a duty to set a date
for hearing and make a ruling as its set dates and rendered judgements for
all other defendants and they were served EXACTLY the same as defendant's Cou
nty Court of Commissioners. If for some erred opinion by this court that
service was not proper for defendant County Court of Commissioners and that
this court does not have jurisdiction to rule,then the prior Judgement-* hy
this court should by law be null and void concerning all other defendant's,
as they were all served EXACTLY THE SAME. See exhibits "A", »r»,"C","D"
Defendant's are not in the Military and are not infants or incompetant's.
REQUEST FOR HEARING DATES
Plaintiff hereby request the following dates for hearing. May 9,2015,June
16,2O15,June 23,2015. Let this be notice of hearing dates for defendant's
County Court of Commissioners,Atascosa County.
(8)
PRAYER
WHEREFORE premisses considered, Plaintiff herein prays this Honorable Court
GRANT this No-Answer Default if full, and defendant County Court of Commis
sioners take nothing. Plaintiff prays this Honorable Court GRANT all relief
requested within these pleadings. Plaintiff prays this honorable Court GRANT
all expenses Plaintiff is entitled to,cost of court,experts,past attorney
fees,service cost and filing fees and any other expenses this court deem
acceptable that Plaintiff has incurred pursuing the truth in this matter.
Plaintiff also prays this Honorable Court hold defendant's County Court of
Commissioners accountable in all things both jointly and severalty.
Respectfully submitted
David Allan Edwards # 907246
Plaintiff/Pro se
Ellis Unit, 1697 PM 980
Huntsville, Texas 77343
DECLARATION
I DAVID ALLAN EDWARDS/ declare under penalty of perjury, pursuant to § 132.001
and TRCP Oodes, that I have read and subscribe to the above and I swear that
the information contained therein is true and correct to the best of my know
ledge .
Executed on PQa*Sl ^.i^O\S / at the Ellis Unit, Huntsville, Texas.
CERTIFICATE OF SERVICE
I DAVID ALLAN EDWARDS/ hereby certify under penalty of perjury that a true
and correct copy of the MOTION TO COMPEL JUDGEMENT FOR NO-ANSWER DEFAULT , has
been provided to the below listed parties by placing said motion in a postage
paid envelope with certified return receipt requested on this day JL. }
of April 2015.
County Court of Commissioners
Courthouse/Suite 102
One Courthouse Circle/Dr.
Jourdanton/ Texas 78026
District Clerk/Margaret Littleton
1 Courthouse Circle Dr. Suite 4-B
Jourdanton, Texas 78026
Respectfully submitted
David Allan Edwards #907246
Plaintiff/Pro se
Ellis Unit, 1697 FM 980
Huntsvilie,Texas 77343
(10)
Civil Action No: 12-O2-O185-CVA
David Allan Edwards #907246
Ellis Unit, 1697 FM 980
Huntsville, Texas 77343
§
Plaintiff In The 81st/218th
§ Judicial Dist. Court
-V-
Atascosa County, Texas
county Court of Commissioners
5
of Atascosa County, Texas
Defendant's
ORDER GRANTING PLAINTIFF DAVID ALLAN EDWARDS,MOTION FOR NO-ANSWER DEFAULT/
NO-EVIDENCE SUMMARY JUDGEMENT WITH SEVERENCE
On this day of 2015,came to be considered plaintiff
DAVID ALLAN EDWARDS/ Motion for No-Answer default/No-Evidence Summary Judge
ment with Severence. Plaintiff and counsel for Defendant County Court of
Commissioners of Atascosa appeared and anounced ready. After hearing arguments
and reviewing the evidence contained within the pleadings,plaintiff's Motion
with exhibits attached, the Court is of the opinion that plaintiff DAVID ALLAN
EDWARDS, Motion should be GRANTED in all things.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED, plaintiff DAVID ALLAN EDWARDS,
Motion is hereby GRANTED in all things and that defendant County Court of
Commissioners take nothing from plaintiff. It is further ORDERED that defen
dant County Court of Commissioners of Atascosa pay reasonable expenses to
plaintiff and cost of court.
It is further ORDERED, ADJUDGED, AND DECREED that all of defendant's Co
unty Court of Commissioners actions concerning plaintiff DAVTD ALLAN EDWARDS ,
are hereby severed from plaintiff's actions against the remaining defendant's.
(ID
The defendant's County Court of Commisioner's are hereby made the subject
of a seperate suit styled DAVID ALLAN EDWARDS # 907246 V COUNTY COURT OF
COMMISSIONERS OF ATASCOSA COUNTY:Cause Number
SIGNED THIS DAY OF , 2015
JUDGE PRESIDING
SPECIAL INSTRUCTIONS:
(12)
' CSSS
(1, ORIGIN no. curse of Law Complaint ?
2) Motion to Supplement I-R.C.P. 69,80 / Fxled apr5
<3, ^Lt—
(4) Federal Sugary/Default Filed on OCT 25,2012
(5) summary Default/Atascosa County Filed DEC 6, 2012
(6) interogatories to Defendant Filed May 23, 2012
Civil Action Ko:
§
David Allan Edwards #907246 §
Sllis Unit, 1697 FB2 980
Huntsville, Texas 77343 §
i §
; Plaintiff In the 81sfc/218TH
Judicial Dist. Court,
Atascoss County, Texas
v.
§ FH.SL
U4RGARET E. UT7LETON. DISTRJCT
County of Atascosa, District §
attorney of Atascosa Countv,
budge over Court, Sheriff of §
FEB 2 8 2012
atascosa County §
1 • Defendants
§
Plaintiffs Due Course of Law Complaint
t
■ To Honorable Judge of said Court, Comes now David Allan Edwards,
, and will show as follows,
j I Discovery
i
Discovery in this cause shall be conducted under Level 2, pursuant
, to T.R.C.P. 190.3 (Texas Rules Civil Procedure)
II Jurisdiction
, This is civil action authorized to redress the deprivations under
i
Color of State Law of Civil Rights secured by the Due Course of Law in
i "*
■ Conjunction with the Constitution of the United States.
" 2-02-G185-CTA O
ai-s-ii action sics. _m iCK L«
MARGARET E U7TLET0M DISTRICT OERit
??H - 5
Tjavtd Allan Edwards #5072*6
SlliS Unit 1697 ?B 9SG
Bustsvllie.* Texas 7734j
Plaintiff
the 8Ist/2ISth
s icic:! Distc Cour
§
of
Attoraey o£ ataeo ?^
■Judge ever- coart.-Sherxfi-
ataScosa CoustY.- Qiuaty Courr
of Commissioners of Hfeaecosa
bounty/efc.alrDr-Gerald B.
Phillips .Physicias. ^c
Jail, Atascosa CouE
Capacity
Defendants §
,? 69,30
-re So-icrable Judge £ saia
is i
sa»' s"w 2d 53'as a ?ro se liti
stringent standards than for.al plaaaings araftad by rea
lawyers "See SVSSiSasa, 819 S-W 26 206.
I DI-SCOlflEI
shall be conducted under Lavsl 2
Discovery in this case
T.R-C.P 1S0-3 (Texas Ruiea civil P.
A. Signs
3 Complete items 1,2, and 3. Also complete
item 4 if Restricted Delivery is desired.
a Print your name and address on the reverse
so that we can return the card to you. B. Received mtadNsms) IJSpate oi Delivery
a Attach this card to the back of the rnailpiece.
or on the front if space permits.
D. is delivery address different from item 1?
•s.._Articlo Addressed to: /\ \_ Jj If YES. enter dolivaiy addrass below. No
3. SarviceType
' D Csitined Mail D express Mail
□ Registered D Return Receipt for Merchandise
D Insured Mail D C.O.D.
4. Restricted Delivery? (Extrz Pea) D Yas
2. Article Number
(Transfer from service label) 7D11 USD DDD1
102595-01-M-2S03
PS Form 3811, August 2001 Domestic Return Receipt
Civil Action Mo:12-02-01g5-i\/A
David Allan Edwards 8507246
§
Ellis Unit,I967 FM 980
Hunfsvllle, Texas 77343 §
§
§
Plaintiff
§
V §
§ in the Slst/218th
§ judicial Dlst. Court
§ Atasccsa County. Texas
County of Atascosa, District
Attorney of Atascosa County.
§
judge over Court, Sheriff of
Atascosa County, County Court § mm IO
§
MARGARET E UmETON. DISTRICT
T CLERK
CERK
of Commissioners of Atascosa
County ,et a)., Dr. Gerald B.
Phillips, Physician of County § OCT 2 4 2012
§
Jail, Atascosa County, individual
IACO..TX
Capacity § ai
DEPUTY
BY.
5
Defendants
REIMSTATEMEKT FROH REMOVAL T.R.C.P. 237 a FOR
MOTION TO SUPPLEMENT T.R.CP. 69,80 AND / OR SUMMARY /
DEFAULT UM3ER T.R.CP. 237, 239., 166
Now comes D&VID ALLAH EDRfARDS, who is indigent. I have no material
wealth, no money and no income from any source to.pay fees or cost
attorney,etc. See,T.R.CP. 145, who is incarcerated and Pro se ,
See, ARMSTRONG, 881, S.W. 2<3 53, as Pro se litigant I'm subject to
" less stringent standards than formal pleadings drafted by real
lawyers ! See, SPELLMAN, 819,S.W. 2d 206.
On Febuary 28th,2012, Ifiled the Original Due Process Complaint and
timely served all defendants. On April 5th,2012, I filed Motion To
Supplement T.R.CP. 69, 80, and timely served ail defendants. The
District Attorney filed a Motion to Remove there after and was the
OBiLY DEFENDANT, that responed to filings, ALL OTHERS are in DEFAULT.
See, REK&MD ORDER, No.SA-12-CA-285-OG / 10/11/2012-
c Complete items 1,2, and 3. Also complete A.
item 4 if Restricted Delivery is desired. D Agent
a Print your name and address on the reverse G Adaresseo
so that we can return the card to you. B;/J^eceived by (Panted Name)- C. Date of Delivery
o Attach this card to the back of the maDpiece,
or on the front if space permits.
0. Is delivery address different from item i? D Yes
". Article Addressed to:
If YES, enter delivery address below: D No
3. Service Type
D Certified Mall Q Express Mall
D Registered D Rsturn Receipt for Merchandise
D Insured Mail D C.O.D.
4. Restricted Oeliveiy? (Exi/a res) □ Yes
2. Article Number
(Transfer from service label)- ■7QDT Q82D QQDD LS15
PS Form 3811. August 2001 Domestic Return Receipt 102595-O1-M-2503
UE1TED STAGES DISTRICT COSP.r
WES-TSEK DISTRICT OF TE2&S
S&H AEPOHIO DIVISION
OCT 2 5 2012
D&VXD ALLSia S3SaaRES # 307246 CLERK, U.S. DiJSJKiCT COURT
WSSTERW DISTRICT.-pF TEXAS
ELLIS OKJia?.- 1697 Wi 980 §
EOSHSVILLE, O^&S 77343 n
DEP.UTY CLERK
s
i
—"if—
dVZL ACSIOK NDS Sfi.-12-C&-O2S5-QS
OF &IS3C0S&,? DISTRICT
A530BWEY OP M&S00S& COTBEfr
JUDGE OVER OOORTj SERIEP OF
ATASCOSA CaDtlECIj !0P;.
keith h0t7lh
cler;
ORAL ARGUMENT CONDITIONALLY REQUESTED
NO. 04-14-00612-CV
FILED IN
4th COURT OF APPPAI S
SAN ANTONIO, TEXAS
IN THE COURT OF APPEALS 01/20/2015 4:48:40 PM
FOR THE FOURTH DISTRICT OF TEXAS KEITH E. HOTTLE
AT SAN ANTONIO, TEXAS Clerk
DAVID ALLAN EDWARDS,
Appellant
SHERIFF OF COUNTY OF ATASCOSA,
Appellee.
On Appeal from the 81st Judicial District Court.
Atascosa County. Texas
Cause No. 12-02-0185-CVA
The Honorable Thomas F. Lee Presiding
BRIEF OF APPELLEE SHERIFF OF COUNTY OF ATASCOSA
Respectfully submitted.
Lucinda A. Vickers
I ucinda.vickers@acao-tx.ort;
Texas Bar No. 16300800
Dennis Arriaga
dennis.arriaga@acao-tx.org
Texas Bar No. 24068021
ATASCOSA COUNTY ATTORNEY'S OFFICE
ft\ Courthouse Circle Drive #3-B
Jourdanton, Texas 78026
TEL: 830-769-3573
FAX: 830-769-2757
COUNSEL FOR APPELLEE
NO. 04-14-00612-CV
IN THE COURT OF APPEALS
FOR THE FOURTH DISTRICT OF TEXAS
AT SAN ANTONIO, TEXAS
DAVID ALLAN EDWARDS,
Appellant,
v.
SHERIFF OF COUNTY OF ATASCOSA,
Appellee.
On Appeal from the 81st Judicial District CourL
Atascosa County. Texas
Cause No. 12-02-0185-CVA
The Honorable Thomas F. Lee Presiding
IDENTITY OF PARTIES AND COUNSEL
Pursuant to rule 38.1(a) of the Texas Rules of Appellate Procedure, the following is a list
of the names and addresses of all parties to the trial court's judgment or order appealed from and
their counsel:
Appellant: David Allen Edwards
Counsel Pro Se
For Appellant: David Allen Edwards #907246
Ellis Unit, 697 FM 980
Huntsville. Texas 77343
Appellee: Sheriff of County of Atascosa
Appellate Counsel
For Appellee: Lucinda A. Vickers
County Attorney
Dennis Arriaga
Assistant County Attorney
Atascosa County Attorney's Office
2\ Courthouse Circle Drive #3-B
Jourdanton. Texas 78026
Trial Counsel
for Appellee: Lucinda A. Vickers
County Attorney-
Dennis Arriaga
Assistant County Attorney
Atascosa County Attorney's Office
#1 Courthouse Circle Drive #3-B
Jourdanton, Texas 78026
Defendant in
Trial Court: Gerald B. Phillips, M.D.
Counsel for Defendant: Rosemary L. Hollan
Hollan Law Firm. P.C.
711 Navarro. Suite 250
San Antonio. Texas 78205
Defendant in
Trial Court: District Attorney ofAtascosa County
Counsel for Defendant: Dannick Villasenor-Hernandez
Brandon E. Strey
Plunkett & Griesenbeck, Inc.
1635 RE. Loop 410. Suite 900
San Antonio. Texas 78209
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL .
i
TABLE OF CONTENTS
iii
INDEX OF AUTHORITIES
V
STATEMENT OF THE CASE
2
STATEMENT REGARDING ORAL ARGUMENT .
3
ISSUES PRESENTED
3
STATEMENT OF FACTS ..
A. Edwards's Complaint
B. Edwards's Motion for No-Answer Default Judgment ^l
C. Sheriffs Motion for Summary Judgment
D. The Trial Court Hearing on The Motions 8
E. Edwards's Post-Judgment Motions and Appeal n
SUMMARY OF THE ARGUMENT
11
ARGUMENT AND AUTHORITIES
I. Objections to Appellant's Brief ...
13
H. Sheriff Answered Edwards's Suit
13
A. Trial Court Could Not Properly Render a No-Answer
Default Judgment Against Sheriff
13
B. Notice ofRemoval Did Not Defeat Sheriffs Answer 15
III. Edwards Received Timely Notice of Hearing on Sheriffs MSJ 18
IV. Trial Court Correctly Granted Sheriffs MSJ Because Edwards's
Claims Are Barred
19
in
A. Standard of Review 20
B. Edwards's Suit is Barred by Four-Year Statute of Limitations 21
1. Edwards's Suit Does Not Allege a Specific Cause of Action
Against Sheriff 21
2. The Four-Year Residual Statute of Limitation Period Applies 21
3. Edwards' Claims Are Barred 22
4. Neither the Discovery Rule Nor Fraudulent Concealment Can
Save Edwards's Claims 23
C. Even if Edwards's Causes of Action Could Be Cast as a Section 1983
Claim. His Claims Are Barred .26
CONCLUSION AND PRAYER 28
CERTIFICATE OF COMPLIANCE 29
CERTIFICATE OF SERVICE 29
APPENDIX TO BRIEF OF APPELLEE 30
IV
INDEX OF AUTHQRIES
Case
Paaefs)
Advent Trust Co. v. Hyder.
!2 S.W.3d 534 (Tex. App.—San Antonio 1999, pet. denied) 22
AT&T Corp. v. Rylamler,
2 S.W.3d 546 (Tex. App.—Austin 1OQQ. pet. denied) 24
Baker v. McCollan.
443 U.S. 137 (1979) 27
Benefit Planners v. Rencare, Ltd..
81 S.W.3d 855 (Tex. App.—San Antonio 2002. pet. denied) 9
BP Am. Prod. Co. v. Marshall
342 S.W.3d 59 (Tex. 2011) 23. 24
Collins v. City ofHarker Heights.
112 S. Ct. 1061 (1992) 27
Davis v. James A. IV. & Houston Reporting Servs.,
433 S.W.3d 101 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) 15:18
Davis v. Jefferies,
764 S.W.2d 559 (Tex. 1989) 15
Doe v. Taylor Indep. Sch. Dist..
15 F.3d443 (5th Cir. 1994) 27
E.D. Sys. Corp. v. Southwestern Bed Tel. Co
674 F.2d 453 (5th Cir. 1982) 16
Haniin v. Straub,
109 S. Ct. 1998 (1989) 77
In the Interest ofER.,
385 S.W.3d 552 (Tex. 2012) 14
Jackson v. Johnson.
950 F.2d 263 (5th Cir. 1992) 27
Jefferson v. Jones.
74 Tex. 635 (Tex. 1889) 15
KPMG Peat Maverick v. Harrison CoumvHous Fin Corn
988 S.W.2d 749 (Tex. 1999) .*. '. /"'
KnykendaU v. Beverly.
436 S.W.3d 809 (Tex. App.-Texarkana 2014, no pet.) ]9
Lear Siegler, Inc. v. Perez.
819S.W.2d470(Tex 1991)
; 20
lewis v. Blake.
876 S.W.2d 314 (Tex. 1994) j
Moreno v. Sterling Drug, Inc..
787 S.W.2d 348 (Tex. 1990) ,,
Morriss v. Enron Oil & Gas Co..
948 S.W.2d 858 (Tex. App.—San Antonio 1997, no pet.) n
Murray v. 0 &A Express, Inc.,
630 S.W.2d 633 (Tex. 1982) n
Owens v. Okure.
488 U.S. 235 (1989)
Quaestor Invs., Inc. v. Chiapas
997 S.W.2d 226 (Tex. 1999)
Ross v. Nat 7 Ctr. For the EmpL ofthe Disabled
197 S.W.3d 795 (Tex. 2006)
Santex Roofing & Sheet Metal. Inc. v. Venture Steel. Inc..
737 S.W.2d 55 (Tex. App.—San Antonio 1987, no writ) i4
Shah v. Moss.
67 S.W.3d 836 (Tex. 2001)
2{j. 2.h
Spencer v. Seagoville,
700 S.W.2d 953 (Tex. App.-Dallas 1985, no writ) 0J
Stoner v. Thompson,
578 S.W.2d 679 (Tex. 1979)
Texas Nat. Res. Conserv. Comm 'n v. Sierra Club
70S.W.3d809(Tex.2002)...
14
Toliver v. Dallas Fort Worth Hasp. Council,
VI
198 S.W.3d 444 (Tex. App.—Dallas 2006, no pet.) 17
Velsicol Chem. Corp. v. Winorgrad,
956 S.W.2d 529 (Tex. 1997) 25
Werner v. Cohvell.
909 S.W.2d 866 (Tex. 1995) 14
Wilson v. Dunn,
197 S.W.3d 795 (Tex. 2006) 9
Wright v. Greenberg.
2 S.W.3d 666 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) 24,25
Statutes Page(s)
28 U.S.C § 1446 16
42 U.S.C § 1983 26
Tex. Civ. Prac. & Rem. Code § 16.051 22
Rules Pagefs)
Tex. R. App. P. 9.4 1, 29
Tex. R. App. P. 38 1
Tex. R. App. P. 38.1 i
Tex. R. App. P. 38.2 31
Tex. R. App. P. 39.1 •. 3
Tex. R. App. P. 39.7 3
Tex. R. Civ. P. 21a 18
Tex. R. Civ. P. 94 14
Tex. R. Civ. P. 99 14.15
Tex. R. Civ. P. 106 14
Tex. R. Civ. P. 107 15
VII
Tex. R. Civ. P. 109 14
Tex. R. Civ. P. 109a 14
Tex. R. Civ. P. 124 14
Tex. R. Civ. P. 166a 18
Tex. R. Civ. P. 237a 16
Tex. R. Civ. P. 239 14. i
VIII
NO. 04-14-00612-CV
IN THE COURT OF APPEALS
FOR THE FOURTH DISTRICT OF TEXAS
AT SAN ANTONIO, TEXAS
DAVID ALLAN EDWARDS,
Appellant
v.
SHERIFF OF COUNTY OF ATASCOSA,
Appellee.
On Appeal from the 81st Judicial District Court,
Atascosa County, Texas
Cause No. 12-02-0185-CVA
The Honorable Thomas F. Lee Presiding
BRIEF OF APPELLEE SHERIFF OF COUNTY OF ATASCOSA
TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS:
Appellee Sheriff of County of Atascosa ("Sheriff or "Appellee"), submits this Brief of
Appellee in accordance with rules 9.4 and 38 oflhe Texas Rules of Appellate Procedure and all
local rules of this Court. In opposition to the appeal by David Allen Edwards ("Edwards" or
"Appellant"), Appellee urges this Court to affirm the trial court's order granting Appellee's Motion
for Summary Judgment and Motion to Sever.
■STATEMENT OF THE CASE
Appellant is a pro se inmate of the Texas Department of Criminal Justice. (T. Clerk R. 56.
61)'. Appellant initiated this suit on February 28,2012, when Appellant filed suit against various
government defendants in the 81st/218th Judicial District Court of Atascosa County. (T. Clerk R.
1-2). Appellant alleged that, while incarcerated at the Atascosa County Jail, he was improperly
medicated at the direction ofjail staff and administrators. (T. Clerk R. 3-7). Appellant alleged
thai the inadequate medical care proximaiely caused him harm. (T. Clerk R. 10). On January 7.
2014, Appellant filed a motion for no-answer default judgment against Appellee and the Atascosa
County Commissioners' Court. (T. Clerk R. Vol. 2, 400). Appellee filed., on April 3? 2014. his
Motion for Summary Judgment and Motion to Sever (hereinafter "MSJ"). (S. Clerk R. 888)*.
Both. Appellant's and Appellee's motions were heard by the trial court on May 9, 2014. (Rep. R.
3-4).
On May 10, 2014. the trial court signed an order granting Appellee's motion for summary
judgment and ordered thai Appellant recover nothing from Appellee. (Clerk R. 1). The court also
granted Appellee's motion for severance (Clerk R. I) and. on June 13. 2014, an order was entered
wherein the trial court denied Appellant's motion for default judgment. (Clerk R. 46). Appellant
now appeals the order of the trial court granting Appellee summary judgment and severance.
(Clerk R. 56).
: Appellee Sheriff will refer to the Clerk's Record filed with the Court on August 28, 2014, as
(Clerk R. [page no.]), the Supplemental Clerk's Record filed with the Court on January 14. 2015,
as (S. Clerk R. [page no.]), the Clerk's Record filed with the Court on June 28. 2013, and
transferred from Court of Appeals No. 04-13-00725-CV to this cause on January 7, 2015. as (T.
Clerk R. [page no.]), and the Clerk's Record. Volume 2 of 2. delivered to the Court on June 25.
2014, and transferred from Court of Appeals No. 04-13-00725-CV to this cause on lanuarv 7
2015. as (T. Clerk R. Vol. 2, [page no.]).
STATEMENT REGARDING ORAL ARGUMENT
Appellant David Allen Edwards did not request oral argument in his opening brief. Should
the Court grant oral argument, and only then. Appellee Sheriff of Count}- of Atascosa respectfully
requests oral argument in this case. It is Appellee's belief that consideration ofthe issues presented
would not be aided, specifically, by oral argument as such arguments can be adequately articulated
within the appellate briefs. Tex. R. App. P. 39.1. 39.7.
ISSUES PRESENTED
1. Did the trial court correctly deny Edwards!s motion for no-answer default judgment,
where Sheriff filed an answer on April 4.2012, the same day the notice of removal was
tiled in state court, but prior to the filing of the notice of removal?
2. Did Edwards receive timely notice of the hearing on Sheriffs motion for summary
judgment, where Sheriff mailed the hearing notice return receipt requested thirty-five days
prior to the hearing and included a certificate of service?
3. Did the trial court correctly grant Sheriffs motion for summary judgment on the basis
that Edwards's suit was barred by the four-year residual statute of limitations period
provided for in Section 16.05L Civil Practice and Remedies Code, where the pleadings
filed by Edwards did not precisely or concisely demonstrate the causes of action relied
upon or asserted by Edwards against Sheriff?
STATEMENT OF FACTS
ShenffofCounty ofAtascosa does not concur in Edwards's statement offacts2 and submits
{he following;
' Sheriff construes Edvvards^s "History of the Case'" as his Statement of the Case and Statement
of Facts. (Appellant Br. 1-2).
A. Edwards's Complaint
Edwards, a pro se inmate incarcerated in the Texas Department of Criminal Justice, filed
his -Plaintiffs Due Course of Law Complaint" on February 28. 2012, in the 81st/218th Judicial
District Court of Atascosa County. (T. Clerk R. 1). Edwards named the District Attorney of
Atascosa County, the "Judge over Court." the Sheriff, the County of Atascosa (T. Clerk R. 2), and.
on April 5, 2012, through a motion to supplement. Dr. Phillips and the Atascosa County
Commissioners' Court (hereinafter "Commissioners") as defendants in his suit. (T. Clerk R. 28).
Edwards alleged, in his complaint, "deprivations under Color of State Law of Civil Rights
secured by the Due Course of Law in Conjunction with the Constitution of United States." (T.
Clerk R. 1). Edwards declared that upon release from Wiliford Hall iMedical Center, he was placed
into the custody of the Atascosa County Jail. (T. Clerk R. 3). Edwards declared that during his
incarceration at the Atascosa County JaiL and while he awaited trial, the Atascosa County Jail staff
substituted his prescribed medications for various narcotics without a prior medical evaluation.
(T. Clerk R. 3-4). Edwards alleged that he suffered anxiety, confusion, and behavioral problems
as a result of the psychotropic medications administered to him. (T. Clerk R. 3).
Edwards stated that he was denied competent and professional medical sen-ices. (T. Clerk
R. 4-5). He claimed that the various narcotics caused him to be heavily sedated during his criminal
trial and he asserted that he was coerced into pleading guilty in his criminal trial. (T. Clerk R. 6).
Edwards alleged that he was never medically diagnosed with a disorder, never medically
evaluated, and that he never consented to the medications. (T. Clerk R. 9-10).
Edwards contended that the County of Atascosa exercised indifference with regard to his
rights by. among other things, failing to oversee and train its court officers, failing to provide
competent counsel, and failing to provide professional medical care. (T. Clerk R. 8). Edwards
claimed that the Judge of Said Court. Stella Saxon, was indifferent to his rights by. among other
things, failing to appoint competent counsel, failing to provide a fair and impartial trial, and by
allowing false testimony to be entered into evidence. (T. Clerk R. 8-9). Edwards further alleged
that the District Attorney of Atascosa County, through Jackie Sparks, was indifferent to his rights
byr among other things, using false testimony and fictitious extraneous acts against him during his
criminal trial. (T. Clerk R. 9). Finally. Edwards stated that the Sheriff of County of Aiascosa,
Tommy Williams, was indifferent to his rights by denying him professional medical services and
by illegally prescribing and sedating him with medications such as Valium, Ambien, and Effexor
XR. (T. Clerk R. 9).
Edwards claimed that his criminal plea was performed under illegally forced sedation and
that, as a whole, the named defendants conspired to deny him the Due Course of Law. (T. Clerk
R. 10). Edwards asserted that the pattern of conduct caused him substantial and irreparable mental
anguish. (T. Clerk R. 10).
Edwards prayed for a declaratory judgment declaring the defendants" acts violated his
rights under the Texas Constitution and die laws of the United States, a permanent injunction
ordering the defendants to admit the acts committed, an order directing the defendants to comply
with the Constitution, compensation for the costs of suit, including reasonable attorney's fees and
for all other proper relief. (T. Clerk R. 11).
B. Edwards's Motion for No-Answer Default Judgment
On January 7, 2014. Edwards filed his motion entitled "Motion to Compel Judgment for
No-Answer Default and/or Summary Default Judgment with Severances Pursuant to T.R.C.P. 41.
166a(c), 237, 237a. 239, 240, 268 For Defendant's County Court of Commissioners. Atascosa
County, Lon Gillespie, William Torans, Freddie Ogden, Weldon Cude, Atascosa County Sheriff.
Tommy Williams."3 (T. Clerk R. Vol. 2? 400).
In his motion. Edwards asserted that this suit was fried on February 28,2012. (T. Clerk R.
Vol. 2. 401). Edwards stated that on March 30, 2012. the District Attorney filed for removal to
federal court. (T. Clerk R. Vol. 2,401). Edwards claimed that the SherifiTiled an original answer
on April 4, 2012. (T. Clerk R. Vol. 2, 401). Edwards further stated that on October 24. 2012. a
remand order was signed by the federal court. (T. Clerk R. Vol. 2, 401). He asserted that he
properly served all defendants with a copy of the reinstatement order. (T. Clerk R. Vol. 2, 401).
Edwards claimed that, after reinstatement, the first hearing held by the trial court was on
April 17, 2013, in which neither Sheriff nor Commissioners made an appearance. (T. Cleric R.
Vol. 2,401). Edwards further claimed that a second hearing was held on September 26, 2013, and
that neither defendant made an appearance at that hearing. (T. Clerk R. Vol. 2,401).
Edwards argued, in his motion, that a no-answer default judgment was proper because the
Sheriff did not file an appropriate and timely answer in response to this suit. (T. Clerk R. Vol. 2.
402-03). In support, Edwards argued that more than twenty days elapsed since the date the Sheriff
and Commissioners were served with a copy of die reinstatement. (T. Clerk R. Vol. 2. 402-03).
Furthermore, Edwards complained that neither Sheriff nor Commissioners addressed or answered
the pleadings filed by him in this suit. (T. Clerk R. Vol. 2,402-03).
Edwards asked the trial court to grant a no-answer default judgment against Sheriff and
Commissioners, and prayed for the costs of suit, including reasonable attorney's fees, and all other
relief. (T. Clerk R. Vol. 2,403).
C. Sheriff's Motion for Summary Judgment
1 For ease of reading, Sheriff will refer to this motion as Edwards's motion for default judgment.
6
On April 4, 2014, Sheriff filed with the clerk of the trial court his MSJ. (S. Clerk R. 4j.
On April 3, 2014, Edwards was served by certified mail, return receipt requested, with Sheriffs
MSJ. (S. Clerk R. 10).
In his motion, Sheriff acknowledged that while Edwards awaited criminal prosecution.
Edwards was in the custody of the Atascoga County Jail. (§. Clerk R. 4-5. 13-15). Sheriff stated
that, after various transfers in and out of the Atascosa County Jail, Edwards was finally transferred
on November 6, 2000r to the Texas Department of Criminal Justice. (S. Clerk R. 7.11). As
support. Sheriff attached the affidavit of Captain Martin Gonzales, the jail administrator and
custodian of records, attesting to Edwards's custody in the Atascosa County Jail. (S. Clerk R. 11).
Captain Gonzales attested that the last date of incarceration of Edwards, in the Atascosa County-
Jail, was November 6,2000. (S. Clerk R. 11).
Sheriff complained that Edvvards's claims against the Sheriff were unclear and that the
pleadings failed to state a specific cause of action. (S. Clerk R. 5). Because no specific statute
was cited for any wrongdoing or injury suffered by Edwards. Sheriff argued that the accrual date
for any supposed injury or wrongdoing was inescapably restricted to a date Edwards was
incarcerated in the Atascosa County Jail. (S. Clerk R. 7). Thus, Sheriff argued, EdwardsTs cause
of action began to accrue on November 6, 2000, at the latest. (S. Clerk R. 7).
Sheriff claimed that without any specific cause of action asserted by Edwards, the four-
year residual statute of limitation period, by default, applied. (S. Clerk R. 7-8). Sheriff contended
that the four-year statute of limitations barred Edwards' suit, filed on February 28, 2012. because
more than four years elapsed between the accrual of any potential cause of action, being no later
than November 6. 2000. and the date suit was filed. (S. Clerk R. 8).
Sheriff recognized that the discovery rule, an exception to the general rule for the accrual
of a cause of action, could toll the statute of limitation period., if applied. (S. Clerk R. 7). But
Sheriff argued that Edwards was aware of any wrongdoing or injury when the act occurred and
that Edwards failed to plead the discover)' rule or any other defensive theory that tolled the statute
of limitations for the events thai formed the basis of this suit. (S. Clark R. 7-8).
Sheriff argued that, as a matter of law, he was entitled to summary judgment because
Edwards's lawsuit was barred by the four-year residual statute of limitation period. (S. Clerk R.
8-9). Sheriff prayed for the court to grant the motion for summary judgment, as a matter of law,
and that the trial court severjudgment in favor of Sheriff from the remaining suit. (S. Clerk R. 9).
D. The Trial Court Hearing on the Motions
On May 9, 2014. the trial court held a hearing to consider Edwards" motion for no-answer
default judgment and Sheriffs MSJ. (Rep.R.1). Edwards appeared in person. (Rep. R. 3).
The court first considered arguments regarding Edwards' request for a no-answer default
judgment. (Rep. R. 4). Edwards argued that removal to federal court was filed on March 30.2012.
(Rep. R. 6). Edwards stated that the reinstatement was served on the Sheriff on October 25.2012.
(Rep. R. 6). Edwards claimed that since October 25, 2012, the Sheriff has failed to file an answer.
(Rep. R. 6). Edwards argued that he filed a certified copy of the order remanding the case and that
he gave written notice of the filing to all defendants. (Rep. R. 6). Edwards further argued that an
answerwasrequired to be filed by Sheriff within fifteen days fromthe date he received suchnotice.
(Rep. R. 17-18).
The trial court then considered the second part ofEdwards' motion for summary judgment.
(Rep. R. 8). Edwards asked the trial court to render judgment in his favor, because Sheriff failed
to respond to his discovery requests. (Rep. R. 8). Edwards suggested that anything less than a
complete answer to his discovery requests amounted to a failure to answer. (Rep. R. 8).
In response to the no-answer default judgment request. Sheriff argued that an answer was
filed on behalf of the Sheriff, as the only county entity properly served with citation.4 (Rep. R. 9).
Sheriff urged that the answer filed on April 4,2012. constituted a sufficient answer and that Sheriff
was not required to file an additional answer when the case was remanded to state court. (Rep. R.
10).
Additionally, Sheriff argued that he appeared by telephone at past hearings held during the
suit, but that he did not present any arguments, because the puiposes of those hearings did not
directly involve him. (Rep. R. 10).
In addressing the discovery issue. Sheriff stated that a response or objection was. in fact,
filed for the discover}' requests filed by Edwards and directed to Sheriff. (Rep. R. 10).
The court lastly considered Sheriffs motion for summary judgment. (Rep. R. 28). Sheriff
adopted the arguments articulated by counsel for District Attorney of Atascosa County. (Rep. R.
28). The argument rested on the premise that Edwards was last incarcerated at the Atascosa
County Jail in 2000. (Rep. R. 28-9). Sheriff argued that the four-year statute of limitations barred
Edwards?s suit, because Edwards' claims were brought beyond the four-year limitation period.
1 Solely for the purposes of clarity, and without the intent to be construed, in any manner,
as an appearance on behalf of Alascosa County Commissioners" Court, Appellee notes that the
Atascosa County Commissioners' Court was not served with process in this suit. Absent service
ot process, an answer or an appearance by the Commissioners, the trial court did not have
jurisdiction over the defendant. Benefit Planners v. Rencare, Ltd, 81 S.W.Sd 855. 858 (Tex
App.—San Antonio 2002, pet. denied) (holding that because the trial court did not acquire in
personam jurisdiction, the trial court's judgment was void). A defendant's actual notice of the
pending litigation is insufficient and does not constitute proper service Ross v \'at 7 Ctr for the
Empi ofthe Disabled, 197 S.W.3d 795. 796-98 (Tex. 2006) (holding that without proper service
of process, a party has no duty to act. participate in court proceedings, or comply with anv
judgment rendered); Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990).
(Rep. R. 28-9). Edwards's suit was filed in 2012, more than four years after the accrual of any
justiciable cause of action. (Rep. R. 28-9). Sheriff complained that the causes of action asserted
by Edwards against the Sheriff were indiscernible and, thus, use of the four-year residual statute
of limitations was appropriate for this case. (Rep. R 28). Sheriff alleged that Edwards failed xo
plead the discovery rule or any other rule that would toll the accrual of the statute of limitations in
any pleading filed by Edwards. (Rep. R. 28).
Edwards, in response, objected to Sheriff's MSJ; on the basis that he did not receive timely
nonce. (Rep. R. 30). Edwards claimed that he received notice of the MSJ hearing on April 23.
2014, which was less than twenty-one days prior to the hearing date. (Rep. R. 30).
Sheriff argued that notice of the motion for summary judgment was properly served on
Edwards, because it was mailed to Edwards on April 3, 2014, and received by the Ellis Unit in
Huntsville, on April 9, 2014. (Rep. R. 30-31). The trial coun judge took note of and referenced
the certificate of service verifying service on April 3, 2014. (Rep. R. 30-31). Sheriff stated that
notice of the hearing was mailed to the Ellis Unit as the last known address for Edwards at the
time. (Rep. R. 32-33).
The court overruled Edwards's objection. (Rep. R. 32). Edwards then argued that Sheriff
was responsible for the employees who gave perjured testimony during his criminal trial. (Rep. R
34). Edwards argued that the fraudulent concealment doctrine was applicable in this case and that
the doctrine prevented the four-year statute of limitation period from barring his suit. (Rep. R.
34).
The trial court overruled Edwards's motion for default judgment. (Rep. R. 35).
Meanwhile, the coun granted the motion for summary judgment filed by Sheriff. (Rep. R. 35).
On May 10. 2014, the court signed an order granting Sheriffs motion for summary judgment and
10
motion to sever. (Clerk R. 1). In the order, the court held that Edwards was to recover nothing
from the Sheriff by way of this suit. (Clerk R. 1).
E. Edwards's Post-Judgment Motions and Appeal
On June 4. 2014, Edwards filed a motion for new trial, arguing that he was not properly
served with notice of the heaiing for the motion for summary judgment and that the Sheriff failed
to file an answer in the federal court, while the case was removed, or in the state court, after
remand. (Clerk R. 3). The Sheriff did not respond to Edwards's motion for new trial.
On May 22T 2014, Edwards filed a request for findings of fact and conclusions of law. (T.
Clerk R. Vol. 2, 637). On June 19, 2014. Edwards filed a notice of past due findings of fact and
conclusions of law (Clerk R. 47), and on July 10,2014. he filed his third notice of past due findings
of fact and conclusions of law. (Clerk R. 51). The trial court did not enter findings of fact or
conclusions of law.
Edwards filed his notice of appeal on August 28,2014 (Clerk R. 56), and his brief followed
on November 17. 2014. The Sheriff now responds.
SUMMARY OF THE ARGUMENT
This Court should affirm the trial court's order granting Appellee's motion for summary
judgment and granting severance.
The trial court judge correctly determined that Appellant was not entitled to a default
judgment against Appellee on the basis that Appellee failed to answer this suit. Appellee filed an
answer on April 4, 2012. (S. Clerk R. 24). The answer filed by Appellee in state court was a
sufficient answer in the case. Prior to April 4, 2012, the trial court had not entered a default
judgment against Appellee, and, after such date, the trial court was barred from entering a no-
answer default judgment against Appellee. The notice of removal had no effect upon the answer
11
filed by Appellee, and Appellee was not required to file a subsequent answer after removal or
remand.
The trial court correctly found and Appellee conclusively established that Appellant
received timely notice of the hearing on Appellee's motion for summary judgment. Notice of the
hearing was mailed by Appeilee to the Ellis Unit in Huntsville as the last known address for
Appellant. Appellee mailed Appellant notice of the hearing on April 3. 2014. and an Amanda
Beltran, at the Ellis Unit, signed for delivery ofthe notice on April 9.2014. The notice was mailed
thirty-five days prior to the hearing date and received by the Ellis Unit twenty-nine days prior to
the hearing date. Appellee attached a certificate of service to the Notice of Hearing reflecting mat
Appellant was served on April 3. 2014. which constitutes prima facie evidence of proper service.
Appellant did not provide any evidence reflecting a date of service other than April 3, 2014 or
April 9, 2014. Therefore, Appellant had timely notice of the hearing on the Sheriffs summary
judgment morion.
The .suran.myjudgn.en, evidence conclusively established that the las, comae, between
Appellan, and the Appellee occurred on November 6. 2000. when Appellant v* la« incarcera,ed
in .he Atascosa County Jail. Appellant's claims against Appellee are general in nMure and
superficially suggest that Appellee violated Appe.lan.'s due process rights through participation
in a conspiracy tha, provided Appellan. improper medical service, Consequent*, because no
Spe=inc cause of»c,ion wm verted by Appellant, his claims were subject .o the four-year residual
limilations period. Nearly fcvelve yea. dapsed before Appellant filed suit against Appcliee.
Appellant presented no evidence during the hearing to raise a lac, issue ,o defeat the statute of
limitations. The .rial court comely ruled that Appellant's claims were barred by .he four-vear
12
residual statute of limitations period found in section 16.051. Texas Civil Practice and Remedies
Code. Therefore, Appellee was entitled to summary judgment.
This Court should affirm the trial court's order granting Appellee's morion for summary
judgment and severance.
ARGUMENT AND AlITHORTTIFS
1. Objections to Appellant's Brief
Prior to presenting the arguments and authorities provided by Appellee, Appellee objects
to the arguments and exhibits provided by Appellant to this Court that were never admitted into
evidence or argued during the summary judgment hearing held on May 9, 2014. Many of the
•Tacts" or "issues" that Appellant declares are outside of the record of this case. For example.
Appellant's second Exhibit C consists of declarations by Chelsea Marie Edwards Ogden, Roaer
Edwards, and Susan Edwards, an internet printout about the Fourth Administrative Judicial Region
and two internet article printouts discussing die trial court judge. (Appellant Br. Ex. C). Exhibit
E to Appellant's brief consists of three half-page leaflets containing handwritten notes by
Appellant, and an unknown individual. (Appellant Br. Ex. E). Exhibit G to Appellant's brief is a
Supplemental Notice of Intent to Use Extraneous Acts that was filed for use in Appellant's criminal
trial. (Appellant Br. Ex. G). These exhibits, and the "facts" or arguments made within them, were
never admitted as summary judgment evidence and are improperly before this Court.
II. Sheriff Answered Edwards's Suit
A. Trial Court Could Not Properly Render a No-Answer Default Judgment
Against Sheriff 6
In the first section to his Point of Error Number Tour, Appellant states that Appellee never
filed a proper answer to this suit in federal or state court. (Appellant Br. 8). Appellant argues that,
because Appellee did not file an answer in this suit, Appellee had no right to file his MSJ.
13
(Appellant Br. 8). Appellant insinuates that, in failing to file an answer, Appellee legally admitted
to the pleadings filed by Appellant. (Appellant Br. 81
The process by which a plaintiff gives a defendant notice that it has been sued is referred
to as "service of citation.'" Texas Nat. Res. Conserv. Comm 'n v. Sierra Club, 70 S.\V.3d 809. 813
(Tex. 2002). When a copy of the citation and a copy of the petition are served to the defendant,
"service of process" is accomplished. See Tex. R. Civ. P. 99.
Process may be served by United States certified mail, return receipt requested, by personal
delivery to the defendant, or by some method of substituted service authorized by a court order.
See Tex. R. Civ. P. 106, 109, 109a; see also In the Interest ofE.R.. 385 S.W.3d 552, 558-61 (Tex.
2012) (discussing sen-ice of citation by publication). The record must demonstrate strict
compliance with the type of service used and a default judgment may not be taken against a
defendant unless the defendant was served with process, accepted process; or waived service of
process, and. thereafter, failed to file an answer or make an appearance in the proceedings. Tex.
R. Civ. P. 124,239; Werner v. Colweih 909 S.W.2d 866, 869-870 (Tex. 1995). The law detests
default judgments. Sanrex Roofing & Sheet Metal v. Venture Steel, Inc., 737 S.W.2d 55, 56-57
(lex. App.—San Antonio 1987, no writ) (discussing the reluctance of Texas courts to enter a
default judgment when certain forms of written pleadings have been filed by a defendant).
After service of process, a defendant's answer must generally be filed by 10:00 a.m. on the
first Monday following the expiration of twenty days from the date of service. Tex. R. Civ. P.
99(b). An answer should contain a general denial denying the allegations in the plaintiffs petition,
and. if a defendant wishes to rely upon an affirmative defense, should specifically plead the
affirmative defenses he expects to rely upon. Tex. R. Civ. P. 94. An affirmative defense is an
independent reason why the plaintiff is not entitled to the relief requested. Id. If the defendant has
14
not filed an answer by the time required to do so, the plaintiff may take a judgment by default
agaxnst the defendant, as long as the return of service has been on file with the clerk for at least ten
days. Tex. R. Civ. P. 107. 239. Nonetheless, a defendant has a right to file an answer at any time
before a judgment by default has been entered by the court. Dam v. Jeffries, 764 S.\V.2d 559.
560 (Tex. 1989); Jefferson v. Jones. 74 Tex. 635,636 (Tex. 1889). Upon answer by a defendant,
the court can no longer enter a judgment by no-answer default. Davis v. James A. W. & Houston
Report Sen,,, 433 S.W.3d 101, 108-09 (Tex. App.-Houston [1st Dist] 20.4. pe, denied)
(quoting Jefferson v. Jones, 74 Tex. 635. 12 S.W. 749, 749 (Tex. 1889)).
Appellee was served with citation on March 5. 2012, by mail. Pursuant to Texas Rule of
Civil Procedure 99(b). Appellee's answer was due by March 26, 2012. Tex. R. Civ. P. Q9(b).
Appellee, in fact, filed his answer on April 4.. 2O12: nine days after the required time to do so. (T.
Clerk R. 24). In his answer, Appellee plead the affirmative defense that Appellant's suit was
barred by the expiration of the statute of limitation period. (T. Clerk R. 24).
Notwithstanding, the trial court had not announced a judgment by no-answer default in
fevor of Appellant and against Appellee prior to April 4, 2012. Appellee filed his answer to this
suit on April 4f 2012. which was, although ntne days after the required tune to do so. tnnely and
appropriate in the sense that it was filed prior to the entry of a default judgment. Appellants
argument that the trial court judge incorrectly denied his motion for no-answer default judgment
fail, because the fi.ed answer prohibited the tria, court from granting a no-answer default
judgment against Appellee. Davis, 433 S.W.3d at 108-09.
B. Notice of Removal Did Not Defeat Sheriffs Answer
In the first section of his Point of Error Number Four. Appellant argues that Appellee did
not file an answer to this suit. (Appellant B, 7-8). Appellant acknowledges that Appellee filed
15
an answer on April 4,2012 (Clerk R. 58), but asserts that such an answer was insufficient, because
the answer was not filed in federal court after removal or in state court after remand. (Appellant
Br. 7-8).
The procedure for removal of a cause of action to federal court is found at 28 U.S.C. §
1446. After filing a notice of removal in the federal court, the defendant seeking removal must
file a copy of the notice of removal in the state court. 28 U.S.C. § 1446(d). The filing of the notice
of removal in the state court effects the removal and the state court cannot proceed any llirther in
the case unless the case is remanded. Id. All action in state court is stayed while the case remains
removed, and the slate court has no power to act. E.D. Sys. Corp. v. Southwestern Ball Tel. Co.,
61A F.2d 453,458 (5th Cir. 1982).
Upon remand, a remand order is executed and a certified copy of the order is sent to the
state court. Quaestor Invs.. Inc.. v. Chiapas, 997 S.W.2d 226, 228 (Tex. 1999). Remanding a case
to state court terminates the jurisdiction of the federal court. Id. When the federal court maiis a
certified copy of the remand order to the state court, jurisdiction re-vests in the state court. Id. at
229. The state court may then proceed with the case. Id. at 228.
Rule 237a of the Texas Rules of Civil Procedure imposes a deadline for filing an answer if
an answer was not filed in state court prior to removal or in federal court after removal. The rule
provides:
All such adverse parties shall have fifteen days from the receipt of such notice
within which to file an answer. No default judgment shall be rendered against a
part}' in a removed action remanded from federal court if that party filed an answer
in federal court during removal.
Tex. R. Civ. P. 237a. Rule 237a does not establish a deadline to answer, in the sense that an answer
not filed by the deadline is waived, but provides a time cenain after which the plaintiff may move
for default judgment if no answer is filed. Toliver v. Dallas Fort Worth Hasp. Council. 198 S.W.3d
444.449 (Tex. App.—Dallas 2006, no pet.}.
Here, notice of removal to the United States District Court. Western District of Texas. San
Antonio Division was filed with the clerk of the trial court on April 4. 2012. (T. Clerk R. 19).
Appellee's answer was filed in the trial conn on the same day. (T. Clerk R. 24). On October 10.
2012, a remand order was signed and the case was remanded to the District Court of Atascosa
County. (S. Clerk R. 30-32). Appellant filed notice of the remand order in the state court on
October 24, 2014. (T. Clerk R. 309).
Appellee's answer was properly filed. By simple coincidence, the two documents were
tiled on the same date, but that in no way defeats the purpose or intent of the answer. The file
stamp on Appellee's answer reflects that it was filed at 3:09 p.m. (T. Clerk R. 24). The notice of
removal was file stamped at 4:46 p.m. on the same day. (T. Clerk R. 19). The notice of removal
had no consequence upon the answer filed by Appellee. When Appellee filed his answer, the state
district court had unfettered jurisdiction of the cause. It was not until 4:46 p.m., on April 4. 2012.
that the state district courfs jurisdiction was interrupted by the filing of the notice of removal.
Being that Appellee:s answer was filed approximately one and a hair hours prior to the federal
court acquiring jurisdiction, Appellee's answer was properly filed.
No additional answer was required to be filed, either in federal or state court, by Appellee.
The April 4, 2012, answer filed by Appellee constituted a live pleading and remained in effect
upon the filing for removal to federal court, while the case was removed to federal court, and after
remand to state court. The pleading by Appellee was neither waived nor withdrawn by Appellee.
17
Upon remand to state court the answer re-emerged as a live pleading when the state cour.
reacquired jurisdiction of the case. With an answer on file in the state court, the trial court could
no longer enter ajudgment by no-answer default against Appellee. Davis. 433 S.W.3d at 108-09.
The Appellee conclusively established that he filed a timely answer to this suit. Because a
secondary answer Was not required to be filed in federal court after removal. or in state cour1. after
remand, the trial court correctly denied Appellant's motion for no-answer default judgment.
This Court should affirm the trial court's order granting Appellee's motion for summary
judgment.
III. Edwards Received Timely Notice of Hearing on Sheriff's MSJ
In his Point of Error Number Two and Point of Error Number Five, Appellant contends
that he did not receive timely notice of the scheduled hearing of the Appellee's summary judgment
motion. (Appellant Br. 4, 12). Appellant asserts that he received notice of the hearing on April
23,2014. (Appellant Br. 4.12). Appellant complains that, based on the lack ofnotice, he properly
moved for a continuance, which the court improperly denied. (Appellant Br. 4).
Texas Rule of Civil Procedure 166a provides that a non-movant is entitled to a minimum
of twenty-one days' notice of the date set for a summary judgment hearing. Tex. R. Civ. P. 166a.
However, when a motion and notice of a hearing are served by mail, three days are added, and.
they must be mailed at least twenty-four days before date of the hearing. Tex. R. Civ. P. 21 a; see
also z™& , Blake, 876 s.w.2d 314, 31(5 (Tex. 1994). Service by mail is accomplished when
the properly addressed document is deposited in the mail. Tex. R. Civ. P. 21a. With certain
limitations, every notice required by the rules of civil procedure may be served by certified or
registered mail to the party's last known address. Id. A written certificate of service by a party
constitutes prima facie evidence of proper service. M Absent proof of non.ecip, the
18
presumption has the force of a rule of law. Kuykendall v. Beverly, 436 S.W.3d 809, 813 (Tex.
App.—Texarkana 2014. no pet.).
Appellant did receive timely notice of the hearing on Appellee's motion for summary
judgment. The MSJ filed by Appellee included a Notice of Hearing setting the hearing date for
May 9, 2014. (S. Clerk R. 10). The summary judgment motion further contained a certificate of
sen-ice stating that the motion was mailed to Appellant at the Ellis Unit in Huntsville. his las.
known address at the time, by certified mail, return receipt requested, on April 3. 2014. Kuykendall, 436 S.W.3d at 813.
The green domestic return receipt was signed for by Amanda Beltran on April 9, 2014.
(Rep. R. 31). The summary judgment hearing was held on May 9. 2014. (Rep. R.I). Excluding
the day of mailing and the date of the hearing, Appellee's MSJ was heard thirty-five days after the
mailing of the notice of the hearing and twenty-nine days after receipt of the correspondence. No
fewer than twenty-four days intervened between the date the notice was mailed and the date the
hearing was conducted. Lewis, 876 S.W.2d at 316.
The Notice of Hearing provided Appellant ample and adequate notice of the setting of
Appellee's motion for summary judgment. Appellant does not deny that he received the notice of
the hearing and he has offered no evidence rebutting the certificate of service, other than his
assertions that he did not receive the notice of the setting. The trial court correctly granted
Appellee's motion for summary judgment and this Court should affirm.
IV. Trial Court Correctly Granted Sheriffs MSJ Because Edwards's Claims Are Barred
In the second section to his Point of Error Number Four, Appellant asserts that Appellee
enlisted two employees to perjure themselves during Appellant's criminal trial through submission
19
of a false extraneous offense report. (Appellant Br. 10). Appellant argues that the false extraneous
offense report violated his due process and civil rights. (Appellant Br. 10). He contends that the
act of submitting the false offense report was part of a conspiracy to incite the jury and cause the
jury to assess a harsher punishment. (Appellant Br. 10).
The trial court correctly granted Appellee summary judgment, because Appellee
conclusively established that Appellant's claims were barred by the residual four-year limitations
period. The summary judgment evidence attached to Appellee's MSJ conclusively established
that any potential cause of action against Appellee necessarily accrued on or before November of
2000, when Appellant was last incarcerated in the Atascosa County Jail. (S. Clerk R. 11-15).
Appellant does not assert any further contact between Appellant and Appellee beyond November
6,2000. that could form the basis of the allegations proclaimed in this suit.
While Appellant does not clearly and concisely state a cause of action, his purported
allegations involve a conspiracy to deny him proper medical treatment that occurred approximately
twelve years prior to the filing of this suit. (T. Clerk. R. 3-9). Because the claims asserted by
Appellant exceed the four-year statute of limitations period, the claims are barred.
A. Standard of Review
The standard for reviewing a summary judgment is whether the moving party carried its
burden to show that there is no genuine issue of material fact and that the moving party is entitled
to judgment as a matter of law. Lear Siegler. Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). A
defendant moving for summary judgment on an affirmative defense, such as a statute of limitation
defense, must prove each element of the affirmative defense. Shah v. Moss, 67 S.W.3d 836. 842
(Tex. 2001). In reviewing a trial court's summary judgment, the appellate court resolves all doubts
against the movant and reviews the evidence in the manner most favorable to the xion-niovant. Id.
20
B. Edwards's Suit Is Barred by Four-Year Statute of Limitations
1. Edwards's Suit Does Not Allege a Specific Cause of Action Against
Sheriff
The plaintiffs petition defines the issues for trial. Murray v. O & A Express. Inc.. 630
S.W.2d 633:636 (Tex. 1982). The petition should provide sufficient facts as to provide fair notice
of the allegations asserted against the defendant. Id A plaintiff relying upon a statutory violation
should state that fact in the pleadings, if he is to recover on that basis, and identify the suitute relied
upon. Id. For a cause of action to be properly pleaded, sufficient facts must be provided, which
permit the trial court to determine with reasonable certainty the elements of the cause of action
and the relief sought. Stoner v. Thompson, 578 S.\V.2d 679, 683 (Tex. 1979).
In his initial Due Course of Law Complaint. Appellant asserted that Appellee, by and
through the Atascosa County Jail adminisuaiion. coerced Appellant into entering a plea of auilty.
provided him ineffective counsel, and supplied him with improper medical care that caused him
;o be sedated for his criminal trial. (T. Clerk R. L 6).
Appellant does not allege Appellee violated any specific statute nor does Appellant cite to
any specific statute or specific cause of action as a basis for his claim. (T. Clerk R. 3-9).
Appellant's purported causes of action are couched in vague and general terms and are structured
in a convoluted manner, making it problematic to discern.
2. The Four-Year Residual Statute of Limitation Period Applies
"The statute of limitations is an affirmative defense/" Morris? v. Enron Oil & Gas Co..
948 S.W.2d 858, 867-68 (Tex. App—San Antonio 1997, no pet.). Its purpose is to compel
plaintiffs to assert claims within a reasonable period of time after injury, while the evidence
remains fresh in the minds of the parties and their witnesses. Id at 868.
21
The burden of proving the affirmative defense lies solely on the defendant asserting the
defense. Id. The defendant must specifically plead and prove the defense. Id.
In Texas, if no express limitation period for a cause of action is provided, the limitation
period is four years. Tex. Civ. P. & Rem. Code § 16.051. Without reference to a specific statute
or cause ofaction. Appellant's allegations would properly fall under the residual limitations period
of section 16.051 for limitations purposes. Id.
Appellant does not deny that the four-year residual limitation period applies to his suit, but
argues that fraudulent concealment tolled the accrual of his cause of action. (Rep. R. 25-29;
Appellant Br. 9-11). Appellant failed to argue that the four-year residual statute of limitation
period was not applicable in this suit, and thus waived such an argument.
3. Edwards's Claims Are Barred
A defendant seeking summary judgment upon the defense of statute of limitations must
demonstrate when the action accrued. KPMG Peat Maverick v. Harrison County Horn. Fin. Corp..
988 S.W.2d 746. 748 (Tex. 1999). When a cause of action accrued is a question of law for the
court to decide. Moreno v. Sterling Drug. Inc., 787 S.W.2d 348, 351 (Tex. 1990). Generally, a
cause of action begins to accrue on the date a wrongful act causes a legal injury, regardless of
when the plaintiff learned of the injury. Id.; see also Advent Trust Co. v. Hyder, 12 S.W.3d 534.
538 (Tex. App.—San Antonio 1999, pet. denied).
Appellant's suit involves allegations arising from incidents occurring during his
incarceration in the Atascosa County Jail. (Appellant Br. 10). Appellant was placed into the
custody of the Atascosa County Jail while he awaited triaJ on criminal charges, and after he was
released from a hospital for injuries he suffered during the commission of a criminal offense.
Appellant was transferred on multiple occasions beibre a final transfer to the Texas Department of
22
Criminal Justice. (S. Clerk R. 11-15). As indicated by the affidavit of Captain Gonzales made
part of Appellee's MSJ, the ultimate date of incarceration for Appellant in the Atascosa County
Jail was November 6, 2000. (S. Clerk R. 11-15). Appellant does not dispute the facts contained
within the affidavit.
Appellee nor his administration had any additional dealings with Appellant after Appellant
was transferred to the Texas Department of Criminal Justice on November 6, 2000. (S. Clerk R.
11-15). Nor does Appellant allege any further contact between Appellee and Appellant after such
a date. Appellant's alleged injuries were, accordingly, committed on or before November 6. 2000.
Appellee definitively established that Appellant's alleged causes of action necessarily
accrued on or before November 6. 2000, during his incarceration in the Atascosa County Jail.
Because Appellant filed suit on February 28, 2012, approximately twelve years after his last
incarceration in the Atascosa County Jail, approximately twelve years after Appellant's last contact
with Appellee or his administration, approximately twelve years after the alleged mistreatment
that Appellant contends caused him harm, and approximately twelve years after the accrual of anv
cause of action forming the basis of this suit. Appellee conclusively established his right to
summary judgment based on the four-year residual limitation period.
4. Neither the Discovery- Rule Nor Fraudulent Concealment Can Save
Edwards's Claims
There are two exceptions to the general accrual rule for the statute of] imitations defense
First, the accrual of a cause of action will be tolled when the nature of the injury is inherently
undiscoverable and the evidence of the injury is objectively verifiable. Wagner & Brown r.
Norwood, 58 S.W.3d 732, 734 (Tex. 2001). This is known as the discovery rule. Id Secondly,
the accrual of a cause of action will be lolled in cases where a defendant fraudulently conceals the
injury. BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59. 67 (Tex. 2011). If either doctrine applies.
23
the cause of action accrues on the date that the plaintiff realized the injury or should have realized
the injury through the exercise of reasonable diligence. Id.
The doctrine of fraudulent concealment is an equitable affirmative defense to a plea that
the statute of limitations bars a suit. AT&T Corp. v. Rylander. 2 S.W.3d 546, 557 (Tex. App.—
Austin 1999. pet. denied). A parly relying upon ihe doctrine of fraudulent concealment must raise
it in response to a motion for summary judgment and bears the burden to prove each element of
ihe doctrine to raise a genuine issue of material fact. Wright v. Greenberg, 2 S.W.3d 666, 677
(Tex. App.—Houston [14th DisL] 1999, pet. denied). To raise the doctrine of fraudulent
concealment., the plaintiff must prove that the defendant had actual knowledge of the wrong, that
the defendant had a fixed purpose to conceal the wrong and that the defendant, in fact, did conceal
the wrong from the plaintiff. Shah, 67 S.W.3d at 841. Unlike the discover}- rule, application of
the fraudulent concealment doctrine is fact-specific. BP Am. Prod. Co.. 342 S.W.3d at 67.
In the second section of his Point of Error Number Four, Appellant slates that fraudulent
concealment applies in this case, because Appellee either failed to disclose wrongful conduct or
lied about wrongful conduct. (Appellant Br. 9-10). Appellant charges that two employees of
Appellee gave perjured testimony in an extraneous offense report that was submitted to the jury at
his criminal trial. (Appellant Br. 10-11). Appellant states that "[ujntil this document is corrected
to reflect the true facts there is a continuing harm on going. Defendant Sheriff has no defense of
statute of limitations as long as this extraneous offense report remains fraudulent." (Appellant Br.
II).
However. Appellant failed to plead the discovery rule or the doctrine of fraudulent
concealment in any of his pleadings in this suit. At the hearing on Appellee's MSJ, Appellant did
raise the doctrine of fraudulent concealment (Rep. R. 27), but because Appellant failed to plead
the doctrine, he waived the defense. Wright, 2 S.W.3d al 677.
Should this Court find that Appellant properly raised and plead the doctrine of fraudulent
concealment, which Appellee does not concede. Appellee asserts that Appellant failed to prove the
doctrine at the MSJ hearing.
The doctrine of fraudulent concealment was not proved by Appellant. Appellant failed to
demonstrate or provide any evidence to prove that Appellee had actual knowledge of any
wrongdoing, that Appellee had a fixed purpose to conceal any such wrong, or that Appellee., in
fact., did conceal any wrong from Appellant. Appellant failed to prove that Appellee made an
affirmative misrepresentation in any document, or otherwise.
Appellant had personal knowledge of the criminal trial and personal knowledge of the
events involving him that transpired during his incarceration in the Atascosa County Jail, because
those acts personally involved Appellant. Hence, Appellant would have been aware ofany alleged
wrongdoing or injury as the legal injuries alleged by Appellant were perpetrated upon him while
he was incarcerated in the Atascosa County jail and they personally involved Appellant. (T. Clerk
R. 3-7).
Appellant does not dispute his knowledge of the alleged misconduct that forms the basis
of this suit. In his complaint, Appellant confirms that he was aware of the declared misconduct.
Appellant states thai he took action in response to the alleged improper medical services by
advising his court appointed criminal aitorney of the conduct, complaining, almost daily, of the
treatment to MHMR, and requesting relief. (T. Clerk R. 4); see Velsico! Chem. Corp. v. WinogracL
956 S.W.2d 529.531 (Tex. 1997) Qiolding that the fraudulent concealment doctrine did not apply
where legal injuries were identifiable).
25
Appellant has offered no evidence to prove fraudulent concealment, other than his self-
serving and conclusory assertions that the deputies committed perjury and that fraudulent
concealment applies in this case to toll the statute of limitations. The doctrine of fraudulent
concealment does not apply to save Appellant's claims from the residual statute of limitations.
Appellant's alleged causes of action accrued on or before November 6, 2000. Appellant
filed suit against Appellee approximately twelve years after the date of Appellant's last contact
with the Atascosa County Jail administration. He failed to provide any evidence establishing
fraudulent concealment. Appellant was aware of the alleged conduct, that he contends caused him
harm, at the time it occurred. Because that conduct occurred in 2000, and not later. Appellee
conclusively demonstrated that Appellant's claims are time-barred under the residual four-year
limitations period. The trial court correctly granted Appellee's motion for summary judgment.
This Court should affirm.
C. Even if Edwards's Causes of Action Could Be Cast as a Section 1983 Claim,
His Claims Are Barred
While Appellant does not assert a violation of any specific statute or concisely detail a
cause of action, in his complaint. Appellant generally alleges violations of his rights under the
Constitutions of the United States and Texas. (T. Clerk R. 1-2, 10). In the second section to his
Point of Error Number Four. Appellant alleges that a fraudulent extraneous offense report was
admitted into evidence during his criminal trial in violation of his due process and civil rights.
(Appellant Br. 10-11). Finally, during the summary judgment hearing. Appellant appeared to
argue that part of the injury suffered by him and forming the basis of this suit were due process
violations resulting from a denial of his writ of habeas corpus. (Rep. R. 23-26).
Claims based solely upon alleged violations of constitutional rights and due process rights
are properly brought under section 1983. 42 U.S.C. § 1983. Section 1983 imposes liability for
26
acts violating protected rights under the Constitution. Collins v. City ofMarker Heights. 112 S.
Ct. 1061.1066(1992); Bakery. McCoHan, 443 U.S. 137. 146(1979). To establish a viable section
1983 claim for violation of the Due Process Clause, the plaintiffmust prove that he has asserted a
recognized liberty or property interest encompassed within the Fourteenth Amendment, and that
he was deprived ofthat interest under color of state law. Doov. Taylor Indep. Sch. Dist.. 15 F.3d
443,450 (5th Cir. 1994). Because federal law does not provide a statute of limitations for section
1983 claims, the forum stale statute of limitations is adopted and applied. See generally On-ens v.
Okure, 488 U.S. 235 (1989) (holding that when a state has various tort statute of limitations, the
general statute applies to section 1983 claims); Harclin v. Straub. 109 S. Ct. 1998, 2000-2001
(1989). In Texas, the applicable statute of limitations period is two years. Jackson v. Johnson,
950 F.2d 263.265 (5th Cir. 1992): Spencer v. Seagoville, 700 S.W.2d 953.956 (Tex. App.-Dallas
1985, no pet.).
Even ifEdwards could reasonably cast his claims against Appellee as a section 1983 claim,
such claim would be barred by the statute of limitations. The limitations period applicable to
Constitutional claims arising under the Texas Constitution or the United Slates Constitution,
including section 1983 claims, are governed by Texas law. Owens, 488 U.S. at 249-50. A suit
alleging section 1983 claims must be filed within two years of the accrual of the cause of action.
Jackson, 950 F.2d at 265.
Thus, even cast as a section 1983 claim, it remains true, that Appellant was last incarcerated
in the Atascosa County Jail in 2000. and that he filed suit in 2012. Appellant's suit was filed
approximately twelve years after the accrual ofany alleged cause of action, well beyond the scope
of the two year statute of limitations provision. Even categorized as Constitutional claims.
Appellant's suit is barred.
27
CONCLUSION AND PRAYER
This Court should affirm the trial court's order granting Appellee's motion for summary-
judgment and granting severance.
The summary judgment evidence offered by Appellee conclusively established that
Appellee filed an answer on April 4.2012. The answer was properly filed prior to removal in the
state district court. Appellee's answer constituted a live pleading and no additional answer was
necessary to be filed in federal court or in state court.
Appellant received timely notice of the hearing on Appellee's motion for summary
judgment. A certificate of service attached to the notice ofhearing established a presumption of
service on April 3, 2014. The hearing was held on May 9, 2014. Appellant presented no evidence
to rebut the presumption of proper, timely notice. Therefore, Appellant had timely notice of the
hearing on Appellee's summary judgment motion.
The summary judgment evidence conclusively established that Appellant's claims were
barred by the residual four-year statute of limitations period. Appellant filed suit against Appellee
approximately twelve years after the accrual of any alleged cause of action. Appellant presented
no evidence during the hearing to raise a fact issue to defeat or toll the statute of limitations.
THEREFORE. Appellee Sheriff of County of Atascosa respectfully prays this Court 10
affirm the trial court's May 10, 2014. order granting Sheriff of County of Atascosa's Motion for
Summary Judgment and Motion to Sever, and grant such other further and proper relief, both at
law or in equity to which Appellee may be justly entitled.
28
Respectfully submitted.
ATASCOSA COUNTY ATTORNEY'S OFFICE
<2,
Lucinda A. Vickers
lucinda.vickers@acao-tx.nrg
Texas Bar No. 16300800
Dennis Arriaga
denms.an1aga@.acao-tx.org
Texas Bar No. 24068021
#1 Courthouse Circle Drive #3-B
Jourdanton. Texas 78026
TEL: 830-769-3573
FAX: 830-769-2757
CERTIFICATE OF COMPLIANCE
I hereby certify that this Brief of Appellee was prepared using Microsoft Word 2013.
which indicated that the total word count, exclusive of those items enumerated in rule 9.4(i)(l) of
the Texas Rules of Appellate Procedure, as amended, docs not exceed 15,000 words (7.995).
Dennis Arriaga / .'
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of this Brief of Appellee upon
counsel pro se for Appellant, via certified mail, return receipt requested, on this the £& dav of
January, 2015, at the following address: ' '
Mr. David Allan Edwards #907246 VIA CiVIRRR
Ellis Unit, 697 FM 980
Huntsville, Texas 77343
Counsel Pro Se for Appellant
Dennis Arriaga
29
NO-ANSWER DEFAULT AND EXHIBITS SUPPORTING IT
COUNTY CODRT OP COMMISSIONERS
Civil Action No:12-Q2-018S-CVA
David Allan Edwards #907246
Ellis Unit,1697 pM 980 §
Huntsville, Texas 77343 §
§
Plaintiff §
§
V §
§ in the
§ Judicial Dist Court
County of Atescosa, District § Atascosa c
Attorney of Atascosa County, §
Judge over Court, Sheriff of §
Atascosa County, County Court §
of Commissioners of Atascosa §
County ,et al., Dr. Gerald B. § Q- \b
Phillips, Physician of County § ~K^
Jail, Atascosa County, Individual § ^
Capadty §
§
Defendants
FOR MO-ANSWER DEFAULT AND/ OR SOMMflRY DEFflDLT JDDGEMEMT WITH SEVEREHCB
PORSQBNT TO T.RoC.P. 41, 166a(c), 237, 237a, 239, 240, 268
FOR
C00MET CODRT OF OOMaiSSIOMERS, ATASOOSA COOMTT, LOW GILLESPIE, WILLIAM TORAK1S,
FREDDIE OGDEK^ WELDOW CODE
Paupers Oath,I DAVID ALLAN EDWARDS, have no material wealth, no money and
no income from any source to pay fees or cost, attorney, etc, See T.R.C.P*
145, who is incarcerated and Pro se Litigant, See ARMSTRONG 881 s.W.2d at
53, as a Pro se Litigant I am subject to " less stringent standards than
formal pleadings drafted by real lawyers." See SPELLMAN 819 s.w.2d at 206.
I
Plaintiff roves this court for a judgement by default in this action, and
in
to filed
or
the wmmmmi mm
M( m The defen.
on October *.
court
or at the
fexhibit "A" ).
II
a9ainst a aidant that has not aw w „.„. 239_
aoes no. fUe an
tea
S.K.3a at 930;Sae T.B.c.P. 243.
is interIocutmy
final j
Terence n.Jcing tne interlocuitory aefault juaoe^ent final,
313S M
at 387,388.
(2)
Ill
'»U such averse partles shaU have
f such notice «** Hhlch t0 fUe „
in . amma
in federal
to state court
or the remand notice the plalntiff,,
S.-.M at 534,538. see KM» V
:Austin
pounds for a m-wsxm DEpaDtT
IV
,0
elapsea since «. aate on which ^ de£endant
aervea with a copy of Pontiffs REr^ATE^ , „„„, ^
-U -...C..Z06.107. aefenaant haS fallea to
an Ktmam ,t
on 2013. has «« to
as to
defendant,or
copy of OTy answers any defense ,*ich it night have had
^■s a genuine iasue of ^ia! fcct stmBry j
Movant defenaant as a matter of Law T.R.c.P.166a (c)
in th6 MillCary
(3)
PRflSBR
WHEREFORE premisses considered Plaintiff herein prays this Honorable Court
GRANTS in total this No — Answer Default/Suniraary with Severence and grant
all other relief Plaintiff is entitled to, suGh as expenses/ cost of court/
and attorney fees* Plaintiff also prays this Honorable Court rule immediatly
as defendant has had almost two years to either answer or make an appearance..
Plaintiff also prays that this Honorable Court hold the defendants accountable
both jointly and severalty in all things.
Respectfully submitted
Qr \ x
DAVTD ALLAN EDWARDS # 907246
PLAINTIFF, PRO SE
ELLIS UNIT/ 1697 PM 980
HUNTSVILLE, TEXAS 77343
(A)
DECLARATION
1 DAVID SiSSiSaS EPTBaagPS, declare under penalty of perj-usy, pursuant to §
132.003 § T.C.P £ R Codes, that I have read and subscribe to the above
End 1 swear that the information contained therein is true and correct
to the best of my knowledge.
Executed Ba^lj 3»5.9£l3 , at Ellis Unit, Honteville, Tesas.
J^i« GL z&iJbCMA
David Alien Sdwesds #907246
Plaintiff, Pro se Litigant
Sllis Unit, 1697 FM 980
Huntsville, Tesas 77343
i'5)
OBBHFICMg Of SERVICE
'T ""' ««lf, under penalty of perjury
haa been provided to the below listed parties by placing said
««^ m . postage-paid envelope via^ mall thls^. day
DISTRICT ATTORHEYxATASfTn.qa rcarm-v
Attorney tor Defendant "
?niSSr A" Dou9lass/Plunket £ Gibson/ INC
70 NE Loop 410 Suite 1100
San Antonio, Tx 78216
SHERIFF OF ATASCOSA COOMTY
Attorney for Defendant
2!Ci^ii: Vickers' Atascosa County Attorney
One Courthouse Circle Dr. # 3B
Jourdanton/ Tx 78026
JDDGE STELLA SAXON, 81st/218th DIST
A. Harris
BOX 12548, Capitol Station
Austin, Texas 78711
COOMTY CODRT OF COMMISSIOMERS
Courthouse Suite 102
One Courthouse Circle,Dr.
Jourdanton, Tx 78026
Dr. GERALD B.PHILLIPS
Attorney for Defendant
Hollan Law Finn,Rosemary Hollan
711 Navarro St, Suite 250
San Antonio, Tx 78205
David Allan Edwards #907246
?laintiff/Pro se Litigant
21Iis Unit/1697 PM 9Q0
Huntsville, Texas 77343
Date. "7
■5}
Civil Action No:12-02-0185-CVA
David Allan Edwards #907246
Ellis Untt,1697FM 980 §
Huntsville, Texas 77343 §
§
Plaintiff §
§
§
§ Inthe81rt/218th
§ Judiciai Oist. Court
County of Atascosa, District § Atascosa County, Texas
Attorney of Atascosa County, §
Judge over Court, Sheriff of §
Atascosa County, County Court §
of Commissioners of Atascosa §
County ,et a!., Or. Gerald B. §
Phillips, Physician of County §
Jail, Atascosa County, Individual §
Capacity §
§
Defendants
JUDGEMENT
On the day of 20 came to be heard Plaintiff
DAVID ALLAN EDWARDS, Motion FOR HO - ANSWER DEFAULT/ SUMMARY
DEFAULT WITH SEVERENCEoAfter reviewing the Pleadings on file
herein, the Court is of the opinion that said motion is meritor
ious/ and should be in all things;
GRANTED GRANTED IN PART NOT GRANTED
EXPLANATION:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT PLAINTIFFS
MOTION BE .Signed this the day of 20
DISTRICT JUDGE PRESIDING
;«items/i ^.and 3. .Also complete
Jjpdmplefei
j i itprrvM jr Restrietep yelivery is desired. O Agent
; h* ffrirft your nirrje and address on the reverse □ Addressee
1 : so *a| we carj return the card to you. i by (Prinjgdjlame) C. Date of Delivery
'v AttaptiUhis 6artj to the'tack of the mailpiece,
0. Is delwery address i^arentfrorrritemi? E'Yes
If YES. aiter delivery address below: □ No
C. C-*(•-•! y -,!.'•, ^ ;
3. SepJiceTypa
^&Certrtied Mail D Express Mail
D Re^steied D Return Receipt for Merchandise
□ Insured Mall □ COO.
4. Restricted Delivery? (Ertra fise; □ Yes
7Q1S HH1D
Domestic Return Receipt 102S95O2-M-1540
nti 3. Also complete A. Signature
:■ □' Agent
, / 4;if pes'irlpt^a Beljuejfy is desired.
: 3 Print your r^rrje and address on the reverse X! \ I • v- * □ Addressee
'-.. !i.Wb that wJp ^4return thaicard to you. B. Received by ( Printed Name) C. Date of Delivery
s'.Aha'qh \n& card tt> tf\e Back of the mailpiece, 1 - -7,- , ,- >
;.:; br on'-th'B ffprtt itspacp permits.
D. IsdeTrveiyaddressdltferentframitem 1? C-TYes
1.-.
If YE9, enter dslivery address bslow: □ No
•a. JerviceType
/D-Certified MaB D Express Mai
D Rogbtered D Return Recoipt for Merchandise
□ Insured Mall □ C.O.D.
4. Restricted Delivery? (Ertra Ffes) □ Yes
.i ID:La
,P5 Fpcfh 3811/Fpbruaiyi6fl4 Domestic Return Receipt 102595-02-M-1540
■i a" ---w. J I' r :2
A. Signature
^ . Also complete
delivery is desired,
d" address on the reverse
fri the-card to you. by ( Printed NemB\ C. Date of Delivery
e babk of the mailpiece,
jjefmits. f fX 7 • 3o- is
0! Is delivery address different from item 1?
If YES. enter daKvery address below: □ No
Type
ed Mall D Express Mail
O Registered □ Return Receipt for Merchandise
D Insured Mall □ C.O.D.
4. Restricted Denvery? (Extra Fee?
7012 221D DQQH SL7=i
CLERKS INDEX
CLERK'S RECORD DUE
06/28/2013 COURT OF APPEALS
50.00 GBEN
RELATOR'S SUPPLEMENTAL PETITION FOR WRIT OF MANDAMUS
£ I LED
07/02/2013 COURT OF APPEALS
50.00 GBEN
ELECTRONIC CLERK'S RECORD FILED
07/03/2013 COURT OF APPEALS
SO.00 GBEN
* SUPPLEMENTAL PETITION FOR WRIT OF MANDAMUS
07/18/2013 MOTION
$0.00
ADMISSI0NS ™° W<** PRODUCT FROM DEFENDANT
COUNTY CIVH. CASE SUMMARY - PLEADINGS
CAUSE # 12-02-0185-CVA
PENA CONCERNING EXTRANEOUS
(A)(B)(C,(D,, 192.05(A)(ir.l9i
07/18/2013 OBJECTION ,_
m ^* ™ ?ODR*MMfNISTRATO* Kttsmur *° c.p.r.c/0-00 ^
07/30/2013
REQUEST FOR ADMISSIONS TO DEFENDANT
DR. GERALD B. PHILLIPS ?0.00 GBEN
08/01/2013
50.00 GBEN
08/01/2013
MOTION FOR NO-ANSWER DEFAULT JUDGMENT so on rRr«
COUNTY COURT OF COMMISSIONERS, ATASCOSA COUNTY LON
GILLESPIE, WILLXAM TORAH3, FREDDIE OGDEN, WELDON CUDE
09/03/2013 MOTION
$0.00 CDUN
TO REQUEST ADMISSIONS, WORK PRODUCT AND WITNESS
lS ra°M D£FENDANT DISTRICT ATTORNEY RENE PENA
09/03/2013 MOTION
SO.00 CDUN
FOR AN ORDER COMPELLING DEFENDANTS TO ANSWER AND
09/03/2013 NOTICE
$0.00 CDDN
LETTER TO DAVID ALLEN EDWARDS
09/03/2013 MOTION FOR SUMMARY JUDGMENT $0.00 NVIL
AND FOR SEVERANCE FILED ON BEHALF OF GERALD 3. PHILLIPS
09/17/2013
NOTICE OF HEARING so 00 rnnK
ON DEFENDANT GERALD PHILLIPS M.D.S MOTION FOR SUMMARV
JODGMENT AND FOR SEVERANCE '
09/17/2013
PLAINTIFFS
USHER AND OBJECTION TO DUEHMgx GERALD B. PHILLIPS,"°'°°
M.D. S MOTION FOR SUMMARY JUDGMENT AND SEVERANCE
09/26/2013 DEFENDANT
TOTAL PLEADINGS LISEED: 82