ACCEPTED
04-14-00922-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
7/17/2015 10:49:31 AM
KEITH HOTTLE
CLERK
No. 04-14-00922-CV
In the Court of Appeals FILED IN
4th COURT OF APPEALS
Fourth Court of Appeals District of Texas SAN ANTONIO, TEXAS
San Antonio, Texas 07/17/15 10:49:31 AM
____________________ KEITH E. HOTTLE
Clerk
JOHN E. RODARTE
Appellant,
v.
TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
TEXAS CHILD PROTECTIVE SERVICES
Appellee.
____________________
From the 57TH Judicial District Court, Bexar County, Texas
Trial Court No. 2010-CI-12625
Honorable Antonia Arteaga, Judge Presiding
APPELLEE’S BRIEF
____________________
REQUEST FOR ORAL ARGUMENT
KEN PAXTON JASON CONTRERAS
Attorney General of Texas Texas Bar No. 24032093
Assistant Attorney General
CHARLES E. ROY Office of the Attorney General
First Assistant Attorney General General Litigation Division
P.O. Box 12548, Capitol Station
JAMES E. DAVIS Austin, Texas 78711-2548
Deputy Attorney General for Civil (512) 463-2120
Litigation (512) 320-0667 (FAX)
Email:
ANGELA V. COLMENERO Jason.Contreras@texasattorneygeneral.gov
Chief, General Litigation Division
COUNSEL FOR APPELLEE
IDENTITIES OF PARTIES AND COUNSEL
Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellee
herein provides this Court with the following list of parties and the names and
addresses of all trial and appellee counsel:
Appellant: Appellee:
John E. Rodarte, Sr. Texas Department of Family and
Protective Services; Texas Child
Protective Services 1
Trial and Appellate Counsel: Trial and Appellate Counsel:
John E. Rodarte, Sr., Pro Se Jason T. Contreras
TDCJ # 1263270 Assistant Attorney General
Clements Unit State Bar No. 24032093
9601 Spur 591 Office of the Attorney General
Amarillo, Texas 79107-9606 P.O. Box 12548
Austin, Texas 78711-2548
Phone: 512-463-2120
Fax: 512-320-0667
1
Plaintiff incorrectly named Defendant-Appellee as the “Child Protective and Regulatory Services.” CR 1.
It was previously named the Texas Department of Protective and Regulatory Services, and is currently named the
Texas Department of Family and Protective Services. A reference in law to the Department of Protective and
Regulatory Services means the Department of Family and Protective Services. Act of June 1, 2003, 78th Leg., R.S., §
1.27, 2003 Tex. Gen. Laws 611, 641.
ii
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL ........................................................ II
TABLE OF CONTENTS .........................................................................................III
APPENDIX ............................................................................................................. IV
INDEX OF AUTHORITIES..................................................................................... V
STATEMENT OF THE CASE .............................................................................. VII
STATEMENT REGARDING ORAL ARGUMENT .......................................... VIII
ISSUES PRESENTED............................................................................................ IX
STATEMENT OF THE FACTS ............................................................................... 1
SUMMARY OF ARGUMENT ................................................................................. 3
ARGUMENT .............................................................................................................4
A. Appellant Obtained All Of The Relief Sought In His Lawsuit
And His Tort Claims Against DFPS Are Barred By Sovereign
Immunity .....................................................................................................4
B. The Discovery Rule Does Not Apply And Cannot Serve As A
Basis To Permit Appellant To Proceed With Any Tort Claims
Against Appellee .........................................................................................7
C. No Due Process Rights Attach To The Denial of Production
Of The 1995 Investigation File.................................................................... 8
PRAYER ....................................................................................................................9
CERTIFICATE OF COMPLIANCE .......................................................................10
CERTIFICATE OF SERVICE ................................................................................11
iii
APPENDIX
CR 1–4, Original Petition for Lawsuit ........................................................TAB A
CR 11–19, Defendant’s Plea to the Jurisdiction ......................................... TAB B
CR 29, Order Granting Defendant’s Plea to the Jurisdiction ..................... TAB C
CR 86–94, Memorandum Opinion .............................................................TAB D
CR 82–98, Defendant’s Motion to Dismiss ................................................ TAB E
CR 99, Order Granting Defendant’s Motion to Dismiss ............................ TAB F
iv
INDEX OF AUTHORITIES
Cases
Barker v. Eckman,
213 S.W.3d 306 (Tex.2006)...................................................................................7
Byers v. Patterson,
219 S.W.3d 514 (Tex.App.-Tyler 2007, no pet.) ...............................................8, 9
City of Dallas v. Carbajal,
324 S.W.3d 537 (Tex.2010) (per curiam) ..............................................................6
County of Cameron v. Brown,
80 S.W.3d 549 (Tex.2002).....................................................................................4
Darr Equipment Co. v. Allen,
824 S.W.2d 710 (Tex.App.-Amarillo 1992, writ denied)......................................7
Gray v. City of Galveston,
No. 14–03–00298–CV, 2003 WL 22908145 (Tex.App.—Houston [14th Dist.]
Dec. 11, 2003, pet. denied) ....................................................................................6
HECI Exploration Co. v. Neel,
982 S.W.2d 881 (Tex.1998)...................................................................................7
Mansfield State Bank v. Cohn,
573 S.W.2d 181 (Tex. 1978)..................................................................................6
Murray v. O&A Express, Inc.,
630 S.W.2d 633 (Tex. 1982)..................................................................................4
Tara Partners, Ltd. v. City of S. Houston,
282 S.W.3d 564 (Tex.App.-Houston [14th Dist.] 2009, pet. denied)....................6
Tex. A & M Univ. Sys. v. Koseoglu,
233 S.W.3d 835 ......................................................................................................6
Tex. Dep't of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex.2004)...................................................................................4
Tex. Dep't of Pub. Safety v. Petta,
44 S.W.3d 575 (Tex.2001).....................................................................................5
v
Univ. of N. Tex. v. Harvey,
124 S.W.3d at 216 (Tex.App.-Fort Worth 2003, pet. denied) ...............................4
Univ. of Tex. Med. Branch at Galveston v. York,
871 S.W.2d 175 (Tex.1994)...................................................................................5
University of Tex. Med. Sch. at Houston v. Than,
901 S.W.2d 926 (Tex.1995)...................................................................................8
Statutes
TEX. CIV. PRAC. & REM. CODE § 16.003(a) ...............................................................8
TEX. CIV. PRAC. & REM. CODE ANN. Ch.101 ............................................................5
TEX. GOVT. CODE § 552.028(a) .................................................................................2
TEX. GOVT. CODE Ch. 553 .........................................................................................1
Other Authorities
Act of June 1, 2003,
78th Leg., R.S., § 1.27, 2003 Tex. Gen. Laws 611, 641....................................... ii
Rules
TEX. R. CIV.PRO. 22 ...................................................................................................4
TEX. R. CIV.PRO. 45(b), 47(a) ....................................................................................4
TEX.R.APP. P. 33.1(a) ................................................................................................6
vi
STATEMENT OF THE CASE
Nature of the Case: This case involves an open records
request by Appellant, an incarcerated
individual. On July 22, 2010, Appellant
filed a lawsuit in order to obtain a copy
of a 1995 CPS Investigation file
regarding child sexual abuse of his
minor sons for which he was the alleged
perpetrator and upon which he was
subsequently imprisoned and is now
serving a life sentence. CR1–4 (TAB
A).
Trial Court: The Honorable Antonia Arteaga
Trial Court Disposition: Appellee filed a plea to the jurisdiction
and motion to dismiss on September 24,
2010. CR 11–19 (TAB B). Appellee’s
plea and motion was granted thereby
dismissing Appellant’s claims. CR 29
(TAB C). Appellant appealed on
October 27, 2010 and after the parties
submitted their respective briefing, the
Fourth Court of Appeals affirmed in
part and remanded in part. CR 86-94
(TAB D). On remand, and consistent
with the ruling of the Fourth Court of
Appeals, the trial courted ordered
Appellee to produce to Appellant the
1995 investigation file. Accordingly,
Appellant received a copy of the
investigation file. Since there was
nothing further to litigate and his tort
claims were also dismissed, Appellee
filed a motion to dismiss on November
19, 2014, which was granted on
December 5, 2014. CR 82–98 (TAB E);
CR 99 (TAB F). This appeal followed.
vii
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not likely to alter the outcome or to be a useful expenditure
of scarce judicial resources. The legal principles relevant to this appeal are neither
novel nor complex and the facts are straightforward. Accordingly, Appellee does not
believe that oral argument is necessary. However, if the Court determines that oral
argument is necessary in this case, Appellee respectfully requests to participate.
viii
ISSUES PRESENTED
The sole issue in this appeal is whether the trial court erred in dismissing this
case after Appellant had obtained all of the relief sought in the lawsuit, the
production of the 1995 investigation file, and had properly dismissed his tort claims.
ix
No. 04-14-00922-CV
In the Court of Appeals
Fourth Court of Appeals District of Texas
San Antonio, Texas
____________________
JOHN E. RODARTE
Appellant,
v.
TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
TEXAS CHILD PROTECTIVE SERVICES
Appellee.
____________________
From the 57TH Judicial District Court, Bexar County, Texas
Trial Court No. 2010-CI-12625
Honorable Antonia Arteaga, Judge Presiding
APPELLEE’S BRIEF
____________________
TO THE HONORABLE COURT OF APPEALS:
Appellee, the Texas Department of Family and Protective Services (DFPS),
files this Brief. In support thereof, Appellee DFPS respectfully presents the
following to the Court for consideration:
STATEMENT OF THE FACTS
This case involves a request for the production of documents by an
incarcerated inmate pursuant to the Texas Public Information Act. Appellant
Rodarte is currently serving concurrent life sentences and twenty years
imprisonment after being convicted of aggravated sexual assault of, and indecency,
with his two minor children. CR 1–4; Supp CR 2-18. He is currently imprisoned in
the Bill Clements Unit of the Texas Department of Criminal Justice. CR 3.
On July 22, 2010, Appellant filed suit in order to obtain a copy of the 1995
investigation conducted by Appellee of child sexual abuse of his sons whereby he
was the alleged abuser, claiming that the investigation file was needed “for further
litigation in other cases.” CR 1–4. His petition also alleged a tort claim against
Appellee. Id. However, the only relief sought by Appellant was to obtain a copy of
the 1995 investigation file. Id.
On September 24, 2010, Appellee filed a Plea to the Jurisdiction and Motion
to Dismiss with the trial court arguing that 1) Appellant’s tort claims were barred by
sovereign immunity, and 2) that under the Act, DFPS has discretionary authority to
deny or comply with a request for documents by an incarcerated inmate pursuant to
TEX. GOVT. CODE ANN. § 552.028(a) (West 2003) (a governmental body is not
required to accept or comply with a request for information from incarcerated
individuals). CR 11-19. The plea and motion were granted on October 11, 2010,
thereby dismissing the case with prejudice and without production of the 1995
investigation file. CR 29.
Appellant subsequently filed an appeal before the Fourth Court of Appeals.
CR 35-41. On appeal after the parties submitted their respective briefing, the Fourth
2
Court affirmed in part and reversed and remanded in part. CR 86-93. On remand,
consistent with the ruling by the Fourth Court, the trial court ordered Appellee to
produce the 1995 investigation file to Appellant. CR 94-95. In accordance with the
trial court’s Order, Appellee produced the file in October 2012. CR 96-97. Appellant
did not challenge the dismissal of his tort claims against DFPS and the trial court’s
order dismissing his tort claims was affirmed. CR 92.
Since Appellant received all the relief he sought in his suit (i.e., the 1995
investigation file in issue) and his tort claims had been dismissed, Appellee filed a
motion to dismiss on November 19, 2014, and the motion was granted on December
5, 2014. CR 82–98; CR 99. This appeal followed. CR 106.
SUMMARY OF ARGUMENT
This Court should affirm the trial court’s December 5, 2014 Order of
Dismissal since Appellant’s claims against DFPS have been litigated and he has
received all of the relief he sought namely, production of the 1995 investigation file.
Further, Appellant’s tort claims against DFPS were dismissed for lack of subject
matter jurisdiction because there is no waiver of sovereign immunity that would
permit such claims to proceed. Finally, no due process rights attach to the denial of
production of the investigation file. For these reasons, the trial court’s dismissal of
the case should be affirmed.
3
ARGUMENT
A. Appellant Obtained All Of The Relief Sought In His Lawsuit And His
Tort Claims Against DFPS Are Barred By Sovereign Immunity
This Court should affirm the trial court’s dismissal of this case because
Appellant received all of his requested relief and his remaining claims are bared. The
plaintiff initially decides who the parties are and what claims to assert. See TEX. R.
CIV. P. 22. The plaintiff’s petition defines the issues for trial. Murray v. O&A
Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982). The pleadings must give a short
statement of the cause of action sufficient to give the defendant fair and adequate
notice of the claim involved. TEX. R. CIV. P. 45(b), 47(a).
Appellant’s suit only sought production of the 1995 investigation file. CR 1-
4. He did not request any other relief. CR 1-4. It is without dispute that he obtained
the file. CR 96-97. Moreover, after receiving the file and prior to the dismissal of his
suit, Appellant never amended his petition to add any further causes of action or to
seek any additional forms of relief against DFPS.
Additionally, Appellant failed to plead facts supporting a viable tort claim
under the Texas Tort Claims Act (TTCA). CR 1-4. A plaintiff must plead facts
sufficient to invoke a waiver of sovereign immunity under the TTCA. County of
Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002); Univ. of N. Tex. v. Harvey, 124
S.W.3d at 216, 222 (Tex.App.-Fort Worth 2003, pet. denied); Tex. Dep't of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). The TTCA provides a very
4
limited waiver of sovereign immunity. See TEX. CIV. PRAC. & REM.CODE ANN. §§
101.001–109. Stated another way, the Legislature grants a party permission to sue a
governmental unit for damages only to the extent allowed under the TTCA. Id. §
101.025(b). Section 101.021 of the TTCA waives immunity in only three scenarios:
(1) negligent operation or use of a motor-driven vehicle or equipment by a state
employee; (2) negligent use of tangible personal property by a state employee, and
3) premises defects. Id. at § 101.021(2).
Texas law is clear and it has “long held that information is not tangible
personal property, since it is an abstract concept that lacks corporeal, physical, or
palpable qualities.” Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 580
(Tex.2001); see Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175,
179 (Tex.1994). Because Appellant’s lawsuit was simply to obtain information
contained in the 1995 investigation file, it did not involve tangible personal property
upon which he could base a waiver of sovereign immunity to pursue a tort claim
against DFPS under the TTCA. Nothing in his allegations fits within the very limited
waiver of immunity for tort claims. CR 1-4.
Even if Appellant had alleged facts fitting with the limited waiver, his failure
to comply with the TTCA’s requirement to notify a governmental unit of a claim
before filing suit is another jurisdictional bar of his purported tort claim. TEX. CIV.
PRAC. & REM.CODE ANN. § 101.101. The failure to comply with the notice
5
requirements in the Texas Tort Claims Act also deprives the trial court of subject-
matter jurisdiction. City of Dallas v. Carbajal, 324 S.W.3d 537, 537–38 (Tex.2010).
Appellant also did not amend his petition and therefore expressly waived any
right to assert additional or different tort claims against DFPS. See Tex. A & M Univ.
Sys. v. Koseoglu, 233 S.W.3d 835, 839–40 (Tex.2007); See Gray v. City of
Galveston, No. 14–03–00298–CV, 2003 WL 22908145, at *2 (Tex.App.—Houston
[14th Dist.] Dec. 11, 2003, pet. denied) (claimant waived any right to amend when
he had an opportunity to amend his petition to attempt to allege facts sufficient to
plead a claim within a waiver of sovereign immunity and did not do so); Tara
Partners, Ltd. v. City of S. Houston, 282 S.W.3d 564, 578 (Tex.App.-Houston [14th
Dist.] 2009, pet. denied).
The fact that Appellant is a pro se claimant does not excuse him from
complying with the applicable substantive and procedural rules of law. See
Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Accordingly,
this Court should affirm the trial court’s dismissal of his suit for lack of jurisdiction
and Appellant waived any right to assert new tort claims that might be within the
waiver of immunity because he had an opportunity to amend and did not do so.
TEX.R.APP. P. 33.1(a); See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d at 839–
40.
6
B. The Discovery Rule Does Not Apply And Cannot Serve As A Basis To
Permit Appellant To Proceed With Any Tort Claims Against Appellee
Appellant’s contention on appeal 2 that he should be allowed to proceed with
his tort claims based on application of the discovery rule is flatly incorrect. The
discovery rule defers a cause of action’s accrual date until the plaintiff knows, or by
exercising reasonable diligence should know, of the facts giving rise to the claim.
Barker v. Eckman, 213 S.W.3d 306, 311-12 (Tex. 2006). In order for the discovery
rule to apply, the nature of the injury must be inherently undiscoverable and the
injury itself must be objectively verifiable. HECI Exploration Co. v. Neel, 982
S.W.2d 881, 886 (Tex.1998). The alleged injury here – of what appears to be
negligent failure to protect – is not “inherently undiscoverable” or objectively
verifiable.” Moreover, Appellant does not allege specific facts that he has discovered
what were before “inherently discoverable.” Therefore, the discovery rule does not
apply to permit him to now assert new allegations to support a tort claim. See Darr
Equipment Co. v. Allen, 824 S.W.2d 710, 712 (Tex.App.-Amarillo 1992, writ
denied).
2
Appellee notes that that Rodarte did not allege in his Original Petition that it failed to
protect his children by failing to remove them from an abusive environment. CR 1-4. Rather, the
sole basis of his lawsuit relates to the denial of production of the 1995 investigation file. Id.
7
Additionally, waiting fifteen (15) years to obtain the 1995 investigation file
clearly shows that Appellant did not exercise reasonable diligence in obtaining facts
giving rise to any purported tort claims. CR 1-4.
Moreover, since the discovery rule does not apply, any new tort claims are
barred by the two-year statute of limitations period. TEX. CIV. PRAC. & REM. CODE
ANN. § 16.003(a). Hence, even if Appellant “discovered” additional facts giving rise
to a claim in October 2012 (i.e., when the investigation file was produced), Appellant
failed to timely amend his petition to properly pursue them within the two-year
limitations period, which was no later than October 2014. Therefore, no valid legal
basis exists for deferral of the accrual date of his purported tort claim and dismissal
of his tort claims was proper. This Court should affirm that dismissal.
C. No Due Process Rights Attach To The Denial of Production Of The 1995
Investigation File
Appellant’s due process violation argument fares no better than his contention
that the discovery rule applies. A violation of substantive due process occurs only
when the government deprives individuals of constitutionally protected rights by an
arbitrary use of its power. Byers v. Patterson, 219 S.W.3d 514, 525 (Tex.App.-Tyler
2007, no pet.). The procedural due process component provides that citizens are
entitled to notice and an opportunity to be heard at a meaningful time in a meaningful
manner before any rights in life, liberty, or property may be taken away by the state.
University of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 930 (Tex.1995).
8
It is without dispute that the nature of Appellant’s lawsuit involved DFPS’s
initial refusal to provide him the 1995 investigation file regarding sexual abuse of
his children. CR 1-4. On appeal, he simply attempts to mischaracterize the nature of
his lawsuit by raising the issue of parental rights. The status of his parental rights
over his children was never an issue at the trial court level. CR 1-4. Rather, the only
issue, and in fact the only basis of his Original Petition, related to the denial of his
access to the 1995 investigation file. Id. Appellant is not entitled to any due process
protections (or any other constitutional protections for that matter) relating to the
investigation file because its production or non-production does not involve a
constitutionally protected property right. Nor does he hold a property interest in
DFPS’s investigation file to support any substantive due process claim, particularly
since by way of his lawsuit he has received the investigation file in issue. Byers v.
Patterson, 219 S.W.3d at 525.
PRAYER
For the reasons stated herein, Appellee respectfully requests that the Court
overrule all of Appellant’s points of error and affirm the trial court’s dismissal.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
9
Deputy Attorney General for Civil
Litigation
ANGELA V. COLMENERO
Chief, General Litigation Division
/s/ Jason T. Contreras
Jason T. Contreras
Texas Bar No. 24032093
Assistant Attorney General
Office of the Attorney General
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Phone: 512-463-2120
Fax: 512-320-0667
Counsel for Appellee
CERTIFICATE OF COMPLIANCE
The undersigned counsel certifies that this Brief of Appellee complies with
Rule 9.4 of the Texas Rules of Appellate Procedure. The text is set to 14-point font
and the number of words in the document as calculated by the word count feature of
Microsoft Word is 2005.
/s/ Jason T. Contreras
Jason T. Contreras
Assistant Attorney General
10
CERTIFICATE OF SERVICE
I hereby certify that on July 17, 2015, a true and correct copy of the foregoing
document was served to John E. Rodarte by Certified Mail Return Receipt
Requested 7013-0600-0001-9791-3104 and Regular Mail.
John E. Rodarte, Sr.
TDCJ # 1263270
Clements Unit
9601 Spur 591
Amarillo, Texas 79107-9606
/s/ Jason T. Contreras
Jason T. Contreras
Assistant Attorney General
11
TAB A
TAB A
TAB A
TAB A
TAB A
TAB B
TAB B
TAB B
TAB B
TAB B
TAB B
TAB B
TAB B
TAB B
TAB B
TAB C
TAB C
TAB D
TAB D
TAB D
TAB D
TAB D
TAB D
TAB D
TAB D
TAB D
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB F
TAB F