ACCEPTED
03-14-00737-CV
4833576
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/9/2015 4:35:37 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00737-cv
_____________________________________
FILED IN
IN THE THIRD COURT OF APPEALS
3rd COURT OF APPEALS
AUSTIN, TEXAS AUSTIN, TEXAS
4/9/2015 4:35:37 PM
_____________________________________
JEFFREY D. KYLE
Clerk
CHASE CARMEN HUNTER, APPELLANT/PLAINTIFF v. DAVID
MATTAX1 IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF
INSURANCE, AND THE TEXAS DEPARTMENT OF INSURANCE,
APPELLEES/DEFENDANTS
APPELLANT’S REPLY BRIEF WITHOUT ORAL ARGUMENT
From Cause D-1-GN-13001957 In The 250th District Travis
County, Texas, The Honorable John K. Dietz Presiding
Chase Carmen Hunter, pro se
340 S. Lemon Ave. #9039
Walnut, CA 91789
Telephone: 707-706-3647
Facsimile: 703-997-5999
Chase_Hunter@yahoo.com
1
Texas Rule of Appellate Procedure 7.2(a): Substitution: Eleanor
Kitzman was named as one intended initial “Defendant” but her
term as Commissioner of Insurance ended on about May 30, 2013.
Her successor was unknown. “John/Jane Doe in his/her official
capacity as interim commissioner of insurance or commissioner of
insurance” was added to the initial petition as a second
intended “Defendant”. Later, Julia Rathgeber was appointed to
replace Eleanor Kitzman and “Julia Rathgeber” was added to this
lawsuit in place of “John/Jane Doe”. David Mattax recently
replaced Julia Rathgeber in the official capacity as
Commissioner of Insurance. Both “Eleanor Kitzman” and “Julia
Rathgeber” have been replaced by “David Mattax”.
CERTIFICATION.
I, Chase Carmen Hunter, state under penalty of perjury
that the following facts and argument are true and
correct.
April 9, 2015
STATEMENT OF THE CASE.
1.This petition for appeal (“Appeal”) addresses very
simple issues.
2.In June 2013, Hunter filed an Original Verified
Motion To Proceed In Forma Pauperis (“Motion IFP”) in
the Travis County Texas District Court (“TCTDC”)
along with her Original Verified Petition for
Declaratory Judgment (“Pet DJ”).
3.Pursuant to Texas Rule of Civil Procedure (“TRCP”)
145a, The Clerk of the TCTDC was required to issue
citations upon receipt of Hunter’s Motion IFP. But
she did not.
4.Subsequently, Hunter filed a Motion to Reinstate
(“MTR”). The TCTDC was required to hold a hearing
pursuant to TRCP 165a(3) and did not.
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5.This is reversible error because the outcome would be
very different if the TCTDC had complied with TRCP
165a(3): a hearing on the MTR would establish that
the record proves that Hunter made many, many
attempts to get the TCTDC Clerk to perform required
ministerial duties and to get the TCTDC to perform
required ministerial duties. No reasonable person
could agree that Hunter’s lawsuit was correctly
dismissed for “want of prosecution” under the
circumstances when the TCTDC Clerk and the TCTDC
abandoned many significant TRCP’s (and abandoned,
inter alia, the United States Constitution Due
Process Clause) and blocked Hunter’s lawsuit from
moving forward.
6.Texas Rule of Appellate Procedure (“TRAP”) 44.1(a)
states that “[n]o judgment may be reversed on appeal
on the ground that the trial court made an error of
law unless the court of appeals concludes that the
error complained of: (1) probably caused the
rendition of an improper judgment; or (2) probably
prevented the appellant from properly presenting the
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case to the court of appeals.” The record shows that
both TRAP 44.1(a)(1) and (2) apply to this appeal.
7.The Appellee Brief (“Appee Brief”) defends the
dismissal order (i.e. August Order) using the only
defense the Appellees could have asserted if they had
filed a response to Hunter’s MTR in the TCTDC and if
they had appeared at a hearing pursuant to TRCP
165a(3).
8.When Hunter filed her MTR in the TCTDC in September
2014, Hunter served her MTR upon the Appellees and
Cynthia Morales, their legal counsel. The Appellees
were permitted by TRCP to file a response to Hunter’s
MTR and were permitted to schedule a hearing on the
MTR. But they did not.
9.They therefore waived their right to assert any
defense of Hunter’s MTR for the first time in this
appellate record.
10. Please, take judicial notice of the underlying
record because it shows that the Appellees did not
participate in the lawsuit in the TCTDC. However,
please, take judicial notice of Texas Third Court of
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Appeals (“TTCA”) case 03-13-00468-CV which shows that
the Appellees participated in that case which arose
from this TCTDC case. They filed a response in TTCA
case 03-13-00468-CV on about September 20, 2013.
Therefore, the Appellees had actual knowledge of this
TCTDC case since July 2013, when Hunter filed TTCA
case 03-13-00468-CV. The Appelees refused to defend
this lawsuit it in the TCTDC.
11. The Appellees cannot use the Appee Brief to make a
record for the first time of how they would have
defended the MTR in the TCTDC if they had defended
the MTR in the TCTDC.
12. Waiver is an intentional relinquishment of a known
right or intentional conduct inconsistent with
claiming that right. See Palladian, 165 S.W.3d at 434;
see also Jernigan v. Langley, 111 S.W.3d 153, 156
(Tex.2003); Sun Exploration & Prod. Co. v. Benton,
728 S.W.2d 35, 37 (Tex.1987).
NO STANDING AND WAIVER TO DEFEND THE TCTDC CLERK
13. Further, the Appee Brief defends the TCTDC Clerk’s
actions and inactions, and the Appellees have no
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standing or right to do so. The Appellees are a
governor appointee and a state agency and are
represented by the Texas Attorney General. The TCTDC
Clerk is a publicly-elected official. Please, take
judicial notice. The Texas Constitution does not
establish the Texas Attorney General as the legal
counsel to publicly-elected officials. See Texas
Constitution Article 4, Section 22.
14. Also, the record in TTCA case 03-13-00468-CV shows
that the clerk of this court sent a letter dated
September 6, 2013, to the TCTDC Clerk requesting that
the “District Clerk’s Office” file a response to
Hunter’s petition for a writ of mandamus. See Exhibit
A. The “District Clerk’s Office” did not file a
response. Please, take judicial notice. Therefore,
the TCTDC Clerk’s Office knowingly defaulted on
Hunter’s petition for a writ of mandamus and
therefore admitted that the TCTDC Clerk violated,
among other things, TRCP 145a, and admitted that
Hunter did not agree by telephone to pay the TCTDC
Clerk’s filing fee.
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15. Even if the Appellees had a right to defend the
TCTDC Clerk’s action and inaction as described in
this record, the Appellees waived their right, if any,
to defend the TCTDC Clerk. If the Appellees wanted
to assert any right to defend the TCTDC Clerk, they
were required to do so in September 2013, in TTCA
case 03-13-00468-CV. But they did not. See ¶ 12 above
for citation on “waiver”.
NOTWITHSTANDING THE FACT THAT THE UNDERLYING RECORD AND
TTCA CASE 03-13-00468-CV ESTABLISH THAT THE APPELLEES
WAIVED THEIR RIGHT TO DEFEND HUNTER’S MTR FOR THE FIRST
TIME IN THIS APPEAL, HUNTER FURTHER REPLIES AS FOLLOWS:
FIRST FALSE AND FRAUDULENT POINT MADE IN APPEE BRIEF
16. Page ii of Appee Brief falsely states that
Appellant’s Brief (“Appnt Brief”) seeks mandamus
relief; falsely implying that Hunter is somehow not
entitled to mandamus relief in a direct appeal.
However, TRAP 44.1 specifically permits mandamus
relief: “If the error affects part of, but not all,
the matter in controversy and that part is separable
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without unfairness to the parties, the judgment must
be reversed and a new trial ordered only as to the
part affected by the error.” (mandamus relief shown
with double underline). TRAP 44.4 also specifically
permits mandamus relief: “(b) Court of Appeals
Direction if Error Remediable. If the circumstances
described in (a) exist, the court of appeals must
direct the trial court to correct the error. The
court of appeals will then proceed as if the
erroneous action or failure to act had not occurred.”
17. The Appnt Brief asks that this Court “grant this
petition”. See Appnt Brief ¶ 33, request (1).
18. This court can grant this petition for appeal and
direct the lower court to perform ministerial duties,
as it did in an order this Court entered on January
21, 2015 (“January Order”). Also TRAP 43.2 (d)
explicitly authorizes this Court to “remand the case
for further proceedings” which constitutes mandamus
relief.
19. This Court has already sua sponte granted Hunter
mandamus relief in its January Order.
-8-
20. The Appee Brief erroneously relies upon Pinnacle
Gas Treating, Inc. v. Read, 13 S.W.3d 126, 127
(Tex.App.-Waco 2000, no pet.) and falsely states that
the court in Pinnacle Gas Treating, Inc. held that a
party could not seek mandamus relief in a direct
appeal. See p. 9 of Appee Brief. The truth is that
this Pinnacle Pinnacle Gas Treating, Inc. appeal was
dismissed because the appeal was interlocutory.
See Pinnacle Gas Treating, Inc. v. Read, 13 S.W.3d
126, 127 (Tex.App.-Waco 2000, no pet.). Further, the
Appee Brief erroneously relies upon Brown v. Burks,
01-10-000219-cv, 2001 WL 2418475, at *2, n.1(Tex. App.
- Houston [1st Dist.] May 25, 2011, no pet.) to
falsely state that the Brown v. Burks court could not
consider an attempted appeal as a writ of mandamus.
See p. 9 of Appee Brief. The truth is that the Brown
v. Burks court denied the appeal because it was an
unauthorized interlocutory appeal: it was an appeal
of non-final order(s).
21. Therefore, it is obvious that the Appee Brief
contains blatant and intentional false statements in
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p. ii and p. 9 and in any other part that claims that
this Court should not grant mandamus relief.
SECOND FALSE AND FRAUDULENT POINT MADE IN APPEE BRIEF
22. The Appee Brief falsely claims that Hunter’s NOA
was untimely.
23. The Appellees waived any defense based on
untimeliness of Hunter’s NOA. The Appellees did not
promptly assert the defense of untimeliness. The
Appellees’ only immediate objection to Hunter’s NOA
was a contest (“Contest”) of Hunter’s Motion IFP
which Appellees filed erroneously with this court in
about December 2014. (TRCP requires such a Contest
to be filed in the TCTDC.) Waiver is an intentional
relinquishment of right. See Palladian, 165 S.W.3d at
434; see also Jernigan v. Langley, 111 S.W.3d 153,
156 (Tex.2003); Sun Exploration & Prod. Co. v. Benton,
728 S.W.2d 35, 37 (Tex.1987) which establish that the
Appellees waived their right to assert the defense of
untimeliness.
THIRD FALSE AND FRAUDULENT POINT MADE IN THE APPEE
BRIEF
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24. Appee Brief contains a false statement on page 1 in
which it states that Hunter “advances no argument nor
provides any authority in support of her contention
that such order should be reversed”. See Appee Brief
p. 1.
25. The Appnt Brief establishes that the TCTDC
abandoned the U.S. Constitution Due Process Clause
and state laws and refused to perform required
ministerial duties in the underlying lawsuit. As a
result, Hunter’s underlying lawsuit did not move
forward. Subsequently, the underlying court
performed the discretionary ministerial duty of
dismissing Hunter’s lawsuit only because Hunter’s
lawsuit did not move forward (i.e. “want of
prosecution”). These are reversible errors because
without these errors, the final result of this
lawsuit would be significantly different: it would
not have been dismissed for want of prosecution. And
if it was dismissed for want of prosecution; a
hearing on Hunter’s MTR would have resulted in the
TCTDC reinstating Hunter’s lawsuit.
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26. Appnt Brief establishes on pages 8 and 9 that the
underlying court refused to hold a hearing on
Hunter’s Motion To Reinstate (“MTR”); and such a
hearing is required pursuant to TRCP 165a(3).
27. It is reversible error that the TCTDC, inter alia,
failed to conduct the required hearing on Hunter’s
MTR.
FOURTH FALSE AND FRAUDULENT POINT MADE IN THE APPEE
BRIEF
28. Page 2 of Appee Brief falsely states that “[t]his
Court has previously heard and denied such requests
for [mandamus] relief in Appellant’s mandamus
proceeding, In re Chase Carmen Hunter, No. 03-13-
00468-CV”.
29. This is a false statement for many reasons. This
court’s case 03-13-00468-CV was a petition for a writ
of mandamus that was filed in about July 2013. This
present case is a petition for appeal that was filed
in about November 2014. The issues have changed from
July 2013 to November 2014. The issues may look
similar, and they may or may not be similar. But the
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look of similarity does not establish that the
requests for relief in this appeal are barred.
30. And even if such requests for relief were
previously “heard and denied” in this court’s case
03-13-00468-CV, the legal standards for a petition
for a writ of mandamus (this court’s case 03-13-
00468-CV) and for a petition for appeal (this court’s
case 03-14-00737-CV) are not the same. As one
example of the difference, a petition for a writ of
mandamus seeks relief regarding required ministerial
judicial duties; whereas a petition for appeal has a
much broader scope of available relief. As another
example, a petition for a writ of mandamus requires
that the petitioner have no other remedy available;
whereas, a petition for appeal is no so restricted.
In fact, Hunter has a guaranteed right to file this
petition for appeal. The same issues presented in
such petition for a writ of mandamus may be presented
again in a petition for appeal after an appealable
order is entered.
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31. The second paragraph on page 9 of Appee Brief,
which carries over to page 10, is irrelevant to this
petition for appeal. This is a petition of appeal of
the TCTDC order dated August 25, 2014. And the
issues regarding the TCTDC’s Clerk refusal to perform
ministerial duties is subordinate to the main issue
which is the petition for appeal of the August Order.
However, if this court grants this appeal and
reverses the August Order, the TCTDC Clerk and TCTDC
judges will likely continue to refuse to perform
ministerial duties; and the underlying lawsuit will
continue to stagnate absent the granting of mandamus
relief. But first and foremost, this is a petition
for appeal of the August Order. It is this court’s
sole discretion to grant mandamus relief. However,
in the interest of judicial economy, if this court
reverses the August Order and does not grant mandamus
relief, Hunter will likely need to appeal a second
subsequent TCTDC dismissal order which the TCTDC
could enter a second time on the basis of “want of
prosecution” arising only from the TCTDC and TCTDC
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Clerk’s failure to perform ministerial duties, and
not due to any fault of Hunter’s.
32. Morales’ statement on page 9 of Appee Brief which
states that “there is no evidence in the record that
Appellant filed an actual petition for writ of
mandamus against the clerk in the trial court which
was not ruled on by the district court judge ---
instead, she filed a motion seeking such relief...”
is without logic. See Appee Brief p. 9. On page 3 of
the Appee Brief, Morales states that Hunter “filed a
document entitled, ‘Verified Motion Directly Filed
With Judge John K. Dietz for Writ of Mandamus And
Prohibition Directed To the Honorable Amalia
Rodriguez-Mendoza, Clerk of the District Court of
Travis County Texas’. CR83-97” It is well
established that a pleading filed with a court is
classified based on the relief requested. Therefore,
a reasonable person would conclude that a “motion
filed [directly with the judge] seeking such
[mandamus] relief” is a “petition for writ of
mandamus”. Further, there may not always be a record
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in the TCTDC’s “clerk’s record” of motions and
petitions filed directly with Judge Dietz because
such motions and petitions are not filed with the
TCTDC Clerk but are filed directly with the judge and
a judge may not accept such documents for filing:
“When a district clerk refuses to accept a pleading
presented for filing, the party presenting the
document may seek relief by filing an application
for writ of mandamus in the district court. TEX.
GOV'T CODE § 24.011. However, that is not likely to
help the relator here. If the district clerk
refused to file a writ of mandamus against the
prison official, the district clerk is not likely
to accept a writ of mandamus filed against her
office. When a district clerk refuses to accept a
pleading for filing, the party should attempt to
file the pleading directly with the district judge,
explaining in a verified motion that the clerk
refused to accept the pleading for filing. TEX.R.
CIV. P. 74. Should the district judge refuse to
accept the pleading for filing, this Court would
have jurisdiction under our mandamus power to
direct the district judge to file the pleading.”
see In re Bernard, 993 S.W.2d 453, 454-544 (Tex.
App.-Houston [1st Dist.] 1999, orig.
proceeding)(O’Connor, J., concurring.)
33. Take notice that In re Bernard uses the phrases
“application for writ of mandamus”, “refused to file
a writ of mandamus”, and “verified motion that the
clerk refused to accept the pleading for filing” and
does not indicate that mandamus relief directed to
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the TCTDC Clerk can only be considered by the TCTDC
if Hunter’s document sent directly to Judge Dietz
used the specific phrase, “petition for writ of
mandamus”. see In re Bernard, 993 S.W.2d 453, 454-544
(Tex. App.-Houston [1st Dist.] 1999, orig.
proceeding)(O’Connor, J., concurring.)
34. Because the record shows that Judge Dietz did not
inform Hunter of whether or not he “accepted [her]
pleading for filing”, it is possible that Hunter’s
motions and petitions filed directly with Judge Dietz
were not accepted for filing.
35. But the record proves that Judge Dietz ignored
Hunter’s request for mandamus relief directed to the
TCTDC Clerk (regardless of whether such requests were
classified as a motion or a petition). And it is
irrelevant if Hunter’s document sent directly to
Judge Dietz was titled “petition for writ of
mandamus” (as Morales contends was required) or
titled “application for writ of mandamus”, “writ of
mandamus”, or “verified motion” which are phrases
established in In re Bernard. see In re Bernard, 993
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S.W.2d 453, 454-544 (Tex. App.-Houston [1st Dist.]
1999, orig. proceeding)(O’Connor, J., concurring.)
36. Further, whether or not “there is [no] evidence in
the record that Appellant filed an actual petition
for writ of mandamus against the clerk in the trial
court which was not ruled on by the district court
judge --- instead, she filed a motion seeking such
relief...” is irrelevant to Hunter’s Appeal of the
August Order because the August Order is appealable
and is being appealed. And the issues regarding “the
petition for writ of mandamus against the clerk” are
not the direct subject of the August Order. The fact
that the TCTDC refused to hold a hearing required
pursuant to 165a(3) is the direct subject of the
August Order.
37. Further, the TCTDC record proves that Hunter
repeatedly filed documents in which she attempted to
move her lawsuit forward and that she was blocked by
the Clerk of the TCTDC who refused to perform
ministerial duties. There is no factual basis to sua
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sponte dismiss Hunter’s lawsuit for “want of
prosecution”.
38. In addition, Morales makes the ridiculous statement
beginning on page 9 and continuing on page 10 of
Appee Brief that “nor is there any evidence that
Appellant complied with the requirements of the
Travis County Local Rules to assign her motion to
Judge Dietz or set such the matter for a hearing so
that it might be ruled on.” This statement is
ridiculous because Travis County Civ. Dist. Ct. Loc.
Rule (“TCTDC Loc. Rule”) 2.6 sets forth the procedure
for assigning a specific judge to a specific case.
It does not establish a procedure for seeking relief
directly from a judge when the Clerk refuses to
perform ministerial duties. TRCP 74 states that
“[w]hen a district clerk refuses to accept a pleading
for filing, the party should attempt to file the
pleading directly with the district judge, explaining
in a verified motion that the clerk refused to accept
the pleading for filing.” TRCP 74 does not specify
which “district judge” the party must attempt to file
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said pleading. Any judge in the TCTDC, upon receipt
of receiving a request for relief under such
circumstances has no basis upon which he can ignore
having received said request for relief.
39. In addition, TCTDC Loc. Rules 2.1, 2.2, 2.4, and
2.6, do not establish requirements; they establish
procedures; TCTDC Loc. Rule 2.2 establishes that a
party can set a matter for a hearing online using
civilcourtsonline.org but this online service is only
available to attorneys and Hunter is acting pro se
and is not an attorney; and TCTDC Loc. Rule 2.2
establishes that a party can set a matter for a
hearing by making an oral request. The facts show
that that TCTDC Clerk would not respond to Hunter’s
faxes sent, would not answer the telephone when
Hunter called, and would not return Hunter’s
telephone messages. See Appnt Brief p. 13, ¶ 29.
40. Finally, the Appellant’s Appendix page 109 shows
that Hunter made a written request directly with
Judge Dietz that he hold a hearing on her MTR.
FIFTH FALSE AND FRAUDULENT POINT MADE IN APPEE BRIEF
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41. On pages 3 and 4 of the Appee Brief, Morales
falsely manipulates the issues. See Appee Brief pp
3-4. Morales claims that the TCTDC Clerk sent Hunter
a request (“Request”) for a “copy of the petition for
each party to be attached to the citation and the
name and address of each party whom Appellant wished
to have served...” and that Hunter characterized this
Request as the TCDC Clerk’s manipulation of the
record and “to cause confusion.” See Appee Brief pp
3-4. Morales manipulates the facts to paint Hunter
in a false light by falsely stating that “[n]o
response to this letter [request] or any completed
issuance request form appears in the record CR1-262;
SuppCR1-10.” Morales falsely twists the facts to
make it look like the only reason why the TCTDC Clerk
did not issue citations is because she did not
receive a “response to this letter or any completed
issuance request form”.
42. The TCTDC Clerk was required to provide Hunter with
services without first requiring Hunter’s response to
this Request.
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43. The TCTDC’s Request falsely implies that the TCTDC
did not have the full names and addresses of the
Defendants and did not have copies of the Pet DJ to
attach to the citations. The Pet DJ shows the full
name and address of the Defendants to be served on
pages 2 and 3. See Appnt Appendix pp. 8 and 9 which
show Pet DJ, p 2, ¶ 2; and p. 3 ¶ 7. The Defendants’
full names are shown on the first page of the Pet DJ.
See Appnt Appendix p. 7. In addition, the Defendants
to be served are public officials of Texas, who are
located in Travis County, and their names and address
are public information. Therefore, the TCTDC Clerk
already knew the Defendants’ full names and addresses.
Therefore, there was no reason to request the full
name and address of the Defendants to be served. In
addition, neither the TRCP nor the TCTDC Loc. Rules a)
require the plaintiff to provide the TCTDC Clerk with
more than one original document, or b) authorize the
TCTDC Clerk to require an indigent party to provide
copies of the original complaint. Notwithstanding,
Hunter included two copies of the Pet DJ and two
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copies of the Motion IFP in the same mailing envelope
when Hunter filed her original Pet DJ and Motion IFP
with the TCTDC Clerk. Therefore, there was no reason
to request copies of Hunter. Further, the TCTDC
Clerk had sent Hunter many emails telling Hunter that
she would not issue citations only because Hunter had
not paid the TCTDC Clerk’s filing fee. See Appnt’s
Appendix p. 102 as one example. The TCTDC Clerk
falsely inserted this Request into the record to
manipulate the facts. The fact is that the TCTDC
Clerk had everything she needed to issue citations
and refused to issue citations only because Hunter
had not paid the TCTDC Clerk’s filing fee. Page 102
of the Appnt Appendix, which is dated June 25, 2013,
does not ask Hunter to provide the full names and
addresses of the parties to be served and does not
ask Hunter to provide additional copies.
IRRELEVANT WORDS IN THE APPEE BRIEF
44. From the second paragraph of page 4 to the middle
of page 5 of Appee Brief: these words are irrelevant
to this appeal. They seem to provide only procedural
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history of this court’s case 03-13-00468-CV. Hunter
does not admit or deny the accuracy of these words
because the petition for a writ of mandamus in TTCA
case 03-13-00468-CV is not relevant to this direct
appeal.
45. The second paragraph on page 5 of Appellee’s Brief
is irrelevant to this appeal. Hunter does not admit
or deny the accuracy of these words because they are
not relevant to this direct appeal.
SIXTH FALSE AND FRAUDULENT POINT MADE IN THE APPEE
BRIEF
46. The first paragraph of page 6 of Appee Brief
contains a false statement. The Appellee states:
“[o]n September 26, 2014, thirty-two days after the
dismissal of the case, Appellant filed a document
entitled...” The use of the word “filed” is false.
Pursuant to TRCP 21a(b)(1), a document is filed when
it is deposited in the mail. Hunter did not file said
document on September 26, 2014. Instead, said
document was marked by the TCTDC Clerk as having been
received on September 26, 2014.
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47. The second paragraph of page 6 of Appee Brief
falsely states, “[i]f the motion had been timely
filed on September 24...” said motion to reinstate
(“MTR”) was timely filed. This is a false statement
because the “motion” (i.e. MTR) was timely filed. The
notice of dismissal was sent to Hunter by mail.
Pursuant to TRCP 4 and 21a(c), any deadline to
perform an action is extended by three days when
notice of the chance to perform such action is made
my mail. Therefore, Hunter’s MTR was timely if
deposited in the mail no later than 33 days after
August 25, 2014. Therefore, if Hunter deposited her
MTR in the mail on or before September 27, 2014, her
MTR was timely filed pursuant to TRCP 4, 21a(c), and
21a(b)(1). Therefore, if the TCTDC Clerk received
Hunter’s MTR on September 26, 2014, it was received
in advance of the filing deadline and was timely
filed. Because Hunter’s MTR was timely filed, then
according to the Appee Brief, footnote 10, Hunter’s
Notice of Appeal (“NOA”) was timely filed.
SEVENTH FALSE AND FRAUDULENT POINT MADE IN APPEE BRIEF
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48. The Appellees’ footnote 8 contains manipulations of
the facts to assert that Hunter has lied about the
date of mailing of her MTR. This footnote claims that
“[n]o such records or any other proof of date of
mailing appear in the record of this case.” However,
Hunter does not need to provide any proof of date of
mailing because Hunter’s MTR was timely filed when
she deposited her MTR in the mail on or before
September 27, 2014, pursuant to TRCP 4, 21a(c), and
21a(b)(1). And we know that Hunter deposited her MTR
in the mail on or before September 27, 2014, because
the TCTDC Clerk indicated receiving Hunter’s MTR on
September 26, 2014.
EIGHTH FALSE AND FRAUDULENT POINT MADE IN APPEE BRIEF
49. The Appellees’ footnote 9 contains assertions that
Hunter has lied about sending the letter to Judge
Dietz that is shown in Hunter’s Appendix p. 109
(“Dietz Letter”). The Appellee implies that Hunter
must be lying about having sent this Dietz Letter on
the basis that this Dietz Letter does not appear in
the “clerk’s record”. Hunter’s initial brief and
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appendix were drafted by Hunter and certified under
penalty of perjury by Hunter. Calling Hunter a liar
does not make Hunter a liar. Also, the Appee Brief
admits that the Appellees believe that the TCTDC
Clerk made an error with the first version of the
“clerk’s record” provided in this Appeal (“First
Clerk’s Record”). The Appee Brief states that the
Appellees believe that the TCTDC Clerk omitted parts
of the “clerk’s record” from the First Clerk’s Record.
See Appee Brief, Footnotes 5 and 7. Obviously, the
First Clerk’s Record did not provide this court with
all the documents in the “clerk’s record”: the TCTDC
Clerk provided a supplemental “clerk’s record” in
this Appeal, upon the Appellees’ request, and such
supplement included documents specifically requested
by the Appellees that pre-dated the First Clerk’s
Record. The Appee Brief admits that it believes that
the TCTDC Clerk made errors with the First Clerk’s
Record but also relies upon the admittedly erroneous
First Clerk’s Record to assert that Hunter lied about
sending the Dietz Letter.
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50. Even if Hunter lied about sending the Dietz Letter,
(but Hunter certifies that she did not lie about this
or anything else); Judge Dietz was required by
statute (TRCP 165a(3)) to hold a hearing on Hunter’s
MTR. There is no statute or rule that required Hunter
to perform any task to prompt Judge Dietz to perform
a required ministerial duty.
51. This court’s record proves that the TCTDC contacted
Hunter in January 2015 by telephone to schedule a
hearing that this court directed it to hold and that
it scheduled said hearing without first giving Hunter
an opportunity to participate in such scheduling.
See motions filed by Hunter with this Court on
February 3, 4, and 5th, 2015, in which she asks for
this Court’s assistance with scheduling said hearing.
This proves that the TCTDC is capable of contacting a
party to schedule a hearing and is capable of
scheduling a required hearing without first requiring
any specific action by the movant. TRCP 165a(3) does
not state that the TCTDC was required to hold a
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hearing on Hunter’s MTR only if the Hunter took
specific action.
52. In addition, the Dietz Letter (Appnt Appendix p.
109)(and attachments) were mailed via Certified,
Restricted Delivery, Return Receipt Requested, first-
class mail (see below) and faxed directly to Judge
Dietz as shown on the Dietz Letter. These documents
would appear in the “clerk’s record” only if Judge
Dietz gave them to the TCTDC Clerk to file.
53. There are many reasons why the Dietz Letter may not
be included in the “clerk’s record”. There is no
basis to call Hunter a liar.
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NINTH FALSE AND FRAUDULENT POINT MADE IN APPEE BRIEF
54. The top of page 7 of Appee Brief contains false
statements. The Appellant did not file a NOA on
December 1, 2014. Instead, the TCTDC Clerk indicated
that she received Hunter’s NOA on December 1, 2014.
Pursuant to TRCP 4, 21a(c), and 21a(b)(1); the date
of filing is the date the item is deposited in the
mail. Please, take judicial notice of the Texas
Supreme Court calendar for November 27th and November
28th, 2014, which were a Thursday and Friday. The
TCTDC was closed from November 27th to November 30th,
2014. If Hunter mailed her NOA on November 24, 2014,
and if the TCTDC Clerk received the NOA on December 1,
2014, the number of days during which the TCTDC was
open from November 24, 2014, to December 1, 2014, not
including the date of mailing, and including December
1, 2014, was three days. The NOA was apparently
entered by the TCTDC Clerk only three business days
after Hunter states that she mailed it. Also,
conspicuously and suspiciously, the TCTDC Clerk did
not make part of the “clerk’s record” the mailing
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envelopes she received from Hunter. Obviously, the
TCTDC Clerk preserved only parts of the record and/or
provided this court with only parts of the record.
55. Hunter also filed her NOA with this court
electronically on November 24, 2014. Therefore,
pursuant to TRAP 25.1(a), Hunter’s NOA was filed with
the TCTDC on November 24, 2014. The Appellee admits
that Hunter’s NOA was timely filed on November 24,
2014. See Appee Brief p. 7, Footnote 10. The
Appellees’ assertion that Hunter’s NOA was untimely
filed on December 1, 2014, with the TCTDC (see Appee
Brief p. 7, top) contradicts Appellees’ assertion
that Hunter’s NOA was timely filed on November 24,
2014. See Appee Brief p. 7, Footnote 10.
56. Obviously, the Appee Brief takes this court on a
futile circular journey of contradiction and
confusion with the sole purpose of deceiving this
court.
TENTH FALSE AND FRAUDULENT POINT MADE IN APPEE BRIEF
57. The Appee Brief implies that Hunter agreed to pay
the TCTDC Clerk’s filing fee. See Appee Brief p 3,
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footnote 3. And the basis for this false assertion is
the existence of a document, apparently signed by
someone who does not provide her last name, who
states that Hunter agreed by telephone to pay the
TCTDC Clerk’s filing fee. See Appee Brief p. 3,
footnote 3 and Appnt Appendix p. 128.
58. Let’s first look at the facts. Appnt Appendix p.
128 is dated June 19, 2013. It states that Cristina M.
had a telephone conversation with Hunter on June 7,
2013, during which Hunter agreed to pay the TCTDC
Clerk’s filing fee. But this Appendix p. 128 is
fraudulent. Appnt Appendix p. 102 shows an email
Hunter received from Brooke Daniel who worked at the
TCTDC Clerk’s office that is dated June 25, 2013. It
states that Hunter’s “Affidavit of Inability to pay
costs was not approved.” The Appnt Appendix pp. 98-
99 shows a two-page fax dated June 16, 2013, which
Hunter sent to every court district in TCTDC in which
Hunter states that she believes that her Pet DJ and
motions have been lost and not docketed; and Hunter
asks every district to “look for my civil petition
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and three motions and docket them expeditiously.” The
electronic correspondence and facsimiles to and from
the TCTDC Clerk establish that the Appnt Appendix p.
128 is false and fraudulent.
59. Hunter has always stated that Appnt Appendix p.
128 which states that Hunter agreed by telephone to
pay the TCTDC Clerk’s filing fee contains false
statements and is fraudulent. Hunter never agreed on
June 7, 2013, (or any other date) to pay the TCTDC
Clerk’s filing fee. Hunter filed a Motion IFP. Hunter
filed no documents indicating that she agreed to pay
the TCTDC Clerk’s filing fee. The TCTDC Clerk’s
record shows no instances in which Hunter sent
payment to the TCTDC Clerk. An unverified statement
made by someone other than Hunter (Cristina M.) which
states that Hunter agreed to pay the TCTDC Clerk’s
filing fee has no evidentiary value.
60. Further, the record in TTCA case 03-13-00468-CV
shows that the clerk of this court sent a letter
dated September 6, 2013, to the TCTDC Clerk
requesting that the “District Clerk’s Office” file a
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response to Hunter’s petition for a writ of mandamus.
See Exhibit A. The “District Clerk’s Office” did not
file a response. Please, take judicial notice.
Therefore, the TCTDC Clerk’s Office knowingly
defaulted on Hunter’s petition for a writ of mandamus
and therefore admitted that the TCTDC Clerk violated,
among other things, TRCP 145a, and that Hunter did
not agree by telephone to pay the TCTDC Clerk’s
filing fee.
ELEVENTH FALSE AND FRAUDULENT POINT MADE IN APPEE BRIEF
61. Page ii falsely states that Hunter waived
complaints on appeal due to inadequate briefing. It
is not clear exactly what the Appellees classify as
inadequate briefing. The Appnt Brief follows the
format dictated by the TRAP and clearly sets forth
violations of, inter alia, more than one significant
TRCP and clearly establishes reversible error.
62. Page ii falsely states that Hunter made no showing
of reversible error. The fact that the TCTDC failed
to conduct the required hearing pursuant to TRCP
165a(3) is just one specific reversible error.
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Perhaps the Appnt Brief did not explicitly refer to
this as “reversible error”. But a “reversible error”
is a “reversible error” regardless of what label it
is given. Names of things do not affect what they
really are. See e.g. “A rose by any other name would
smell as sweet.” William Shakespeare's play Romeo
and Juliet; "When I see a bird that walks like a duck
and swims like a duck and quacks like a duck, I call
that bird a duck." - James Whitcomb Riley, American
poet, writer, and best-selling author.
TWELFTH FALSE AND FRAUDULENT POINT MADE IN APPEE BRIEF
63. The bottom of page 13 of Appee Brief contains false
and illogical statements and argument: “...are
premised on Appellant’s erroneous assertion that she
is indigent; an assertion which has been found to be
false, as evidence by the trial court’s finding of
February 19, 2015. SuppCR3-4” First, the trial court
did not find such an assertion to be “false”. Please,
take judicial notice. Second, Hunter filed her
Motion IFP in June 2013. The TCTDC Clerk was required
pursuant to TRCP 145a to issue citations in 2013. No
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order entered by the TCTDC dated in February 2015 is
relevant to the TCTDC Clerk’s failure to issue
citations in June 2013. For one reason, TRCP 145(d)
requires either the TCTDC Clerk or the adverse party
to contest Hunter’s Motion IFP in writing and
requires that a hearing be held on the contest. And
no contest was filed at any time in the TCTDC. The
Appellees waived their right to assert that Hunter is
not indigent. Waiver is an intentional
relinquishment of right. See Palladian, 165 S.W.3d at
434; see also Jernigan v. Langley, 111 S.W.3d 153,
156 (Tex.2003); Sun Exploration & Prod. Co. v. Benton,
728 S.W.2d 35, 37 (Tex.1987) which establish that the
Appellees waived their right to assert that Hunter is
not indigent.
64. Also, the statement in the Appee Brief at the top
of page 3 is false. It states, “A notation appears on
the copy of the motion in the record, which reads,
‘Approved with payment plan. 6/18/13.’ CR71”
(footnote reference omitted) It is false for many
reasons. One main reason it is false is that this
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statement seems to falsely imply that is relevant to
this appeal whether or not the TCTDC Clerk has
authority to “approve” a Motion IFP. This is an
appeal of the August Order, not of the TCTDC Clerk’s
refusal to perform ministerial duties. Also, the
Appee Brief is attempting to use this appeal to
assert the defense it would have asserted during a
hearing on Hunter’s MTR. But the Appellees knowingly
refused to defend Hunter’s MTR. Waiver is an
intentional relinquishment of right. See Palladian,
165 S.W.3d at 434; see also Jernigan v. Langley, 111
S.W.3d 153, 156 (Tex.2003); Sun Exploration & Prod.
Co. v. Benton, 728 S.W.2d 35, 37 (Tex.1987) which
establish that the Appellees waived their right to
assert the defense for the first time in this appeal
that they were permitted to assert in the TCTDC.
SUMMARY
65. The Appee Brief is a compilation of lies and false
argument. Lying and making false argument are not
legal strategies. They are crimes (known as perjury)
and violations of Texas Disciplinary Rules of
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Professional Conduct, including but not limited to
Rule 3.03 “Candor Toward the Tribunal”.
PRAYER.
66. Hunter respectfully requests that this Court take
jurisdiction of this case, and that upon reviewing
this matter: (1) grant this Petition, (2) reverse
the Order of Dismissal, (3) direct the TCTDC to
direct the Clerk to (a) issue citations in TCDC case
D-1-GN-13001957, (b) cause service of process upon
the defendants in TCDC case D-1-GN-13001957, (c)
provide Hunter with all customary services provided
any other party without charge, (d) provide Hunter
with free access to http://www.idocket.com so that
Hunter can view her case progress, or in the
alternative, send Hunter a weekly statement by
facsimile at 703-997-5999 that accurately reflects
the activity of any cause pending in which Hunter is
a party, (4) direct the TCTDC to enter an order that
transfers this lawsuit to this Court for
adjudication since the TCTDC has refused to comply
with the United States Constitution and the
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aforementioned TRCP’s and has refused to perform its
ministerial duties to adjudicate this lawsuit since
June 2013, (5) award Hunter her reasonable
attorney's fees and costs, and (6) award Hunter such
further relief to which she may be entitled.
Respectfully Submitted,
/s/ Chase Carmen Hunter
Chase Carmen Hunter
Appellant, pro se
340 S. Walnut Ave. #9039 :: Walnut, CA 91789
Tel: 707-706-3647 :: Fax: 703-997-5999
Email: Chase_Hunter@yahoo.com
CERTIFICATION
I, Chase Carmen Hunter, certify that I have reviewed
this Reply and conclude that every factual statement in
the Reply is supported by competent evidence included
in the appendix or record.
______________________
Chase Carmen Hunter
CERTIFICATION
I, Chase Carmen Hunter, swear under penalty of perjury
that the document shown in the one exhibit is true and
accurate.
______________________
Chase Carmen Hunter
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CERTIFICATION IN COMPLIANCE WITH TEX. R. APP. P
9.4(i)(2)(B) and 9.4(i)(3)
I, Chase Carmen Hunter, certify that this Reply
contains 6,829 words and 37 pages.
Chase Carmen Hunter
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing Reply was served upon the parties shown below
as indicated:
Cynthia A. Morales, Assistant Attorney General
By Efile on April 9, 2015
Cynthia.Morales@texasattorneygeneral.gov
Facsimile: (512) 477-2348
Chase Carmen Hunter
- 40 -
FILE COPY
COURT OF APPEALS
THIRD DISTRICT OF TEXAS
P.O. BOX 12547, AUSTIN, TEXAS 78711-2547
www.3rdcoa.courts.state.tx.us
(512) 463-1733
J. WOODFIN JONES, CHIEF JUSTICE JEFFREY D. KYLE, CLERK
DAVID PURYEAR, JUSTICE
BOB PEMBERTON, JUSTICE
JEFF L. ROSE, JUSTICE
MELISSA GOODWIN, JUSTICE
SCOTT K. FIELD, JUSTICE
September 6, 2013
Ms. Sara Shiplet Waitt The Honorable Amalia Rodriguez-Mendoza
Tx Dept Of Insurance Civil District Clerk
P.O. Box 149104 Travis County Courthouse
Austin, TX 78714-9104 P. O. Box 1748
* DELIVERED VIA E-MAIL * Austin, TX 78767
* DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 03-13-00468-CV
Trial Court Case Number: D-1-GN-13-001957
Style: In re Chase Carmen Hunter
v.
Dear Counsel and Honorable Amalia Rodriguez-Mendoza:
The Court requests that real party in interest and the District Clerk’s Office file a response to
relator’s petition for writ of mandamus that was filed in this court July 15, 2013. Please file your
response with the Clerk of this Court on or before Friday, September 20, 2013.
Very truly yours,
JEFFREY D. KYLE, CLERK
BY: Amy Strother
Amy Strother, Deputy Clerk
cc: Ms. Chase Carmen Hunter
EXHIBIT A