ACCEPTED
03-13-00075-CV
4671417
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/27/2015 12:00:15 PM
JEFFREY D. KYLE
CLERK
NO. 03-13-00075-CV
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS
THIRD DISTRICT OF TEXAS 3/27/2015 12:00:15 PM
AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
MICHAEL W. CARPENTER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
Appeal from the 274th District Court of Hays County, Texas
Trial Court Cause No. 11-1960
The Honorable Bert Richardson, Judge Presiding
MOTION TO SUBSTITUTE COUNSEL AND MOTION FOR LEAVE TO
FILE UNTIMELY APPELLEE’S BRIEF
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF
APPEALS:
Now comes Appellee, the State of Texas, and files this Motion for Leave to
File an Untimely Appellee’s Brief, and in support states the following:
1. Appellee’s Brief was due on April 12, 2013. Attorney for Appellee,
Mark Zuniga, was sent a Notice of Late Brief on or about April 24, 2013.
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2. Attorney for Appellee, Mark Zuniga, is no longer employed by Hays
County. Although he was still employed by Hays County at the time Appellee’s
Brief was due, and at the time the Notice of Late Brief was sent, it appears that Mr.
Zuniga did not file a Brief.
3. During the pendency of this appeal, Appellee, Wes Mau, sued in his
capacity as an Assistant District Attorney for Hays County, Texas - representing
the State of Texas, was employed at the Attorney General’s Office for the State of
Texas. However, at or about the time Mr. Zuniga failed to file Appellee’s Brief,
Mr. Mau had announced his candidacy for the office of Criminal District Attorney
for Hays County. It appears that, despite direction to proceed from the then-
incumbent Criminal District Attorney, Sherri Tibbe, Mr. Zuniga questioned
whether he should continue to represent Appellee, Mau. Regardless, no Brief was
timely filed for Appellee. Appellee, Mau, has since been elected the Criminal
District Attorney for Hays County, Texas, and currently serves in that post. He
recently discovered that no Brief was filed in the present case and phoned the
undersigned counsel, requesting an untimely filing.
4. This Motion is not sought for delay, but so justice may be served.
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5. For the foregoing reasons, the undersigned hereby requests leave to
serve as substitute counsel for Appellee and requests leave to untimely file this
Appellee’s Brief pursuant to Texas Rules of Appellate Procedure, Rule 38.6, which
provides for modifications of filing time.
/s/ Mark Kennedy
Mark D. Kennedy
SBN 24032498 / mark.kennedy@co.hays.tx.us
OFFICE OF GENERAL COUNSEL
HAYS COUNTY, TEXAS
111 E. San Antonio, Suite 202
San Marcos, Texas 78666
512.393.2219 (telephone)
512.392.6500 (telecopier)
Attorney for Appellee
CERTIFICATE OF CONFERENCE
I certify that I sent a letter by certified U.S. Mail (#7013 1090 0000 1397
5717) on March 27, 2015 to Michael Carpenter, at TDCJ# 1201045, 8 O.B. Ellis
Unit, 1697 FM 980, Huntsville, Texas, 77343, to ask about the extension. No
response has been received thus far.
/s/ Mark Kennedy
Mark D. Kennedy
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CERTIFICATE OF SERVICE
I hereby certify that, on the 23rd day of March, 2015, I electronically filed
(the filing was rejected that day due to having no Certificate of Conference) the
foregoing with the Clerk of the Court using the Texas Online eFiling for courts
system and sent a true and correct copy of the foregoing to the following individual
by certified U.S. Mail (#7011 3500 0000 2472 6604):
Michael Carpenter
Appellant - Pro Se
TDCJ# 1201045
8 O.B. Ellis Unit
1697 FM 980
Huntsville, Texas 77343
/s/ Mark Kennedy
Mark D. Kennedy
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