ACCEPTED
04-14-00551-cv
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
11/5/2015 11:11:01 PM
KEITH HOTTLE
CLERK
NO. 04-14-00551-CV
FILED IN
IN THE COURT OF APPEALS 4th COURT OF APPEALS
FOR THE SAN ANTONIO, TEXAS
11/5/2015 11:11:01 PM
FOURTH JUDICIAL DISTRICT OF TEXAS
KEITH E. HOTTLE
SAN ANTONIO, TEXAS Clerk
PABLO SOLIZ § APPELLANT
§
V. §
§
STATE OF TEXAS § APPELLEE
APPEAL FROM 79th JUDICIAL DISTRICT COURT
BROOKS COUNTY, TEXAS
TRIAL COURT NO. 14-02-16542-CV
APPELLANT’S MOTION FOR RECONSIDERATION EN BANC
Rick Soliz
Attorney at Law
Texas Bar Number 00785013
P.O. Box 4051
Houston, Texas 77210
713-228-1900
Counsel Pro Bono
ORAL ARGUMENT REQUESTED
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TO THE HONORABLE JUSTICES OF SAID COURT:
Now comes, Pablo Soliz, Appellant in the above entitled and numbered
cause, by and through his pro bono attorney of record, Rick Soliz, and submits
this First Motion for Reconsideration En Banc. For good cause, Appellant
shows as follows.
ISSUES PRESENTED FOR RECONSIDERATION EN BANC
Appellant submits this response to the opinion issued by the Court on July
22, 2015, and subsequent denial of a motion for rehearing and requests that the
Court consider the following issues:
Issue 1: The Court of Appeals erred in finding that Appellant should have done
the impossible of enrolling in required training when not allowed by those
conspiring to remove him from office and by holding that any particular
summary judgment defense need be stated in the removal statute itself.
Issue 2: The Court of Appeals erred in finding that Appellant is not entitled to
his requested and constitutionally protected right to a jury trial.
Issue 3: The Court of Appeals erred in ruling that Appellant has not claimed a
due process violation, that he must use the words “due process” when pointing
out a due process violation and that he is required to do either or the issue is
waived.
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I.
SUMMARY
Constable Soliz has more education and training than other elected law
enforcement officer in Brooks County or adjacent counties. Historically in
Texas, elected constables had 2 years from taking office to receive required
training. And prior to that, permanently appointed constables need never reach
certification. Constable Soliz has received some formal training at Sam Houston
State University since taking office. Constable Soliz has a 4 year college degree
and additional training. He has been certified as a Texas licensed peace officer
and has served multiple jurisdictions through employment and election.
Brooks County is one of the most impoverished in the state. And it has
always lacked educated, competent and moral law enforcement. Many law
enforcement agents, including several cops, an elected district judge and an
elected district attorney have been arrested and convicted in recent times in
Brooks County alone. All of who had one thing in common – formal complaints
against them by Constable Soliz. When an agent with morals happens to appear
as with Appellant, an "all points bulletin" is put out to destroy him. How dare
someone question inept and law violating authority in South Texas! By way of
just a few specific examples pertaining to Brooks County's recent history: An
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elected district attorney has been disbarred and jailed. Prior to his election, he
was trained and personally assisted as first assistant, by the elected district
attorney he later ran against and beat. The mentor is now the district judge, who
replaced the last judge who was prosecuted, convicted and removed from the
bench for life. The current judge recused himself from this proceeding since
Constable Soliz simply knows too much history about the judge, the court's
inner workings and related offices. The sheriff during these times was booted
out of town by votes and investigated as was his successor. They avoided
prosecution multiple times as do most local cops who are merely fired, demoted
or transferred among the various local agencies, instead of prosecuted. In the
last few months though, more than half a dozen cops in the very small county
seat and only city, have been merely fired for illegal and felonious conduct or
actually prosecuted and sent to jail. And more investigation is at hand of several
at multiple levels. And of course the appellee's office's head has been indicted
for serious crimes as has our governor. I'm sure I have failed to mention others.
And that gets us to Constable Soliz. Persecuted over the years by those I have
mentioned above for investigating and complaining about their illegal conduct,
and now persecuted for lack of training by the indicted attorney general
opposing this appeal. Training denied to him by those who reported him to
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appellee's offices and asked for removal proceedings. This is somewhat of a
joke since Constable Soliz has more experience and training than anyone else on
any local police force and including the bloating number of unnecessary state
and federal officers in the area now tripping over themselves. Moreover, it does
not take any legal action to note that the law cannot require the impossible.
Constable Soliz was specifically targeted and illegally prevented from enrolling
in the training facility Brooks County utilizes - based on Constable Soliz's age –
according the head of the training academy. As an aside, why hasn't anyone
checked training and test records for all other peace officers in the County,
including the illiterate ones. Could it be no one would be left to police the area?
This is selective and vindictive prosecution. None of what I say is meant to
disparage the good work of opposing counsel, who has been as professional and
competent as can be, under the circumstances.
II.
ARGUMENT, AUTHORITY AND EVIDENCE
The standard upon summary judgment is, “whether, after considering all
evidence in a light most favorable to the nonmoving party, the moving party is
entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
106 S. Ct. 2548, 2552 (1986). The Supreme Court outlined three principals that
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would determine if summary judgment was appropriate: 1) The party moving for
the summary judgment must meet an initial burden of showing no genuine issue
of material fact exists, 2) The substantive law governing the cases will
determine what issues are material. 3) If the moving party meets its burden, the
party opposing the motion must present affirmative evidence and must produce
more than a mere scintilla of evidence to overcome the motion; and 4) The
court does not need to look to the entire record to establish whether a genuine
issue exists requiring trial, but need only look to those portions of the record to
which the parties point to the court. Id at 2552-55; See also 3 ATLA’s Litigating
Tort Cases § 31.3. A fact is material if its resolution might affect the outcome
of the suit. See Anderson v. Liberty Lobby, Ins., 477 U.S. at 248. Rule 56(c)
also requires the dispute be “genuine”.
When facts are unavailable to the nonmovant. If a nonmovant shows by
affidavit or declaration that, for specified reasons, it cannot present facts
essential to justify its opposition, the court may: (1) defer considering the motion
or deny it; (2) allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order. See Fed. R. Civ. P. 56(d) (1-
3). Constable Soliz has a 4 year college degree and additional training. He has
been certified as a Texas licensed peace officer.
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A constable is elected to hold office “for four years and until” his or her
successor is elected and qualified. Tex. Const. V, sec. 18(a). Where the
constitution prescribes the qualifications for holding a particular office, the
legislature lacks the power to change or add to those qualifications unless the
constitution provides that power. Luna v. Blanton, 478 S.W. 2nd 76 (Tex. 1972).
V.
TRAINING
The government alleges that Constable Soliz is not licensed because he
did not obtain training in the appropriate amount of time. The Constable replies
that he trained and was licensed long ago therefore there is a fact dispute.
Constable Soliz worked as an elected, licensed peace officer and hired licensed
peace officer for multiple agencies. That training and licensure does not
disappear in thin air as if it never happened simply because of the passage of
time. Are elderly people and their accomplishments to be discarded as if they
never occurred? As mentioned, Constable Soliz has more education, training
and experience than any other constable in Brooks County and possibly all of
South Texas. Additionally, Brooks County belongs to the Coastal Bend Council
of Governments therefore Brooks County officials always look to Del Mar
Police Academy in Corpus Christi as their home school for training purposes.
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And Brooks County officials are reimbursed expenses for training by Brooks
County. Constable Soliz met with Del Mar’s Director Stan Repka who refused
to provide an application to Constable Soliz and told him to look elsewhere
because of primarily because of his age and the fact that he would not be able to
pass the rigorous physical tests during the training. Constable Soliz then asked
Brooks County Commisioner’s Court and head of commissioner's court, County
Court Judge Raul Ramirez for financial support, just like they provide for every
other peace officer in the county when it deals with mandatory mandatory
training, in order to attend any alternative academy in order to begin and
complete his required training. Mr. Ramirez, who was not reelected and is
leaving office with the his county government in financial ruin for acts during
his tenure, blocked and denied financial assistance at any alternative school and
instead later reported this Constable to the attorney general’s office due to lack
of training. Such actions commenced these proceedings. Constable Soliz’s
income, less than $800.00 a month constable salary, was completely insufficient
to pay for travel expenses and additional training costs. Coincidentally, the
government about the same time, also took his place of business without
compensation for the construction of I 69 through town.
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Later, on April 23, 2013, Constable Soliz traveled to St. Mary’s
University in San Antonio, TX to appear for a previously scheduled appointment
to complete the TCOLE (Texas Commission on Law Enforcement) State Test in
order to recertify. Constable Soliz had studied for two months for this test and
paid the $20.00 fee. Mr. Soliz was not allowed to participate in the exam by the
same entity that scheduled his appointment, presumably because he had not
completed training.
So to summarize, there is clearly a disputed fact relative to training.
Appellee has not disproved Appellant's fact of being disallowed and blocked
from obtaining his training. Constable Soliz's efforts to obtain additional
training were stifled by gatekeepers who held the gate shut. Therefore, it was in
every way impossible to comply with any mandatory training, if any, during the
time period in question.
What are our appellate courts created for if not to rectify situations like
this from the hands of abusive government efforts to prevent training and
remove a qualified, constitutionally elected public servant?
The trial court erred by refusing to recognize the fact issues raised by
Appellant regarding his defenses, of not being provided with funds for training
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and not being admitted to training based on age, sufficient to materially dispute
movant’s summary judgment evidence.
VI.
ARGUMENT AND AUTHORITIES IN ORDER
ISSUE 1
Appellant cannot be expected to do the impossible. The law must allow
for the mandated procedures to be possible. Some things do not have to be
written into the law but are common judicial sense. What should Constable
Soliz do? Should he begin arresting those who prevent him from fulfilling the
training mandate. Or should he shoot his way into the training facility and sit
down for classes? For the government to mandate actions, then purposely single
out an individual to prevent the individual from fulfilling those actions, is
beyond sinister and plainly illegal. This defense has a built in fact dispute that
Appellee must disprove to prevail upon summary judgment. The appellee must
disprove Appellant's allegation or show there is no dispute of a material fact. To
interpret the statute as this court has done makes the statute unconstitutional.
Appellant cannot contest what he cannot foresee until he sees it as he has here.
Defendant, as the nonmovant, chooses his own defense and is not required
to prove his defense of not being allowed to enroll in the academy and not being
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provided with money to obtain training and licensure, in response to a motion
for summary judgment. But the mere raising of a fact issue is enough to defeat
the summary judgment, American Pertrofina. Inc. v. Allen, 887 S.W.2nd 829
(Tex. 1994); Brownlee v. Brownlee, 665 S.W. 2nd 111 (Tex. 1984). In the
case at hand, appellant and appellee (in their evidence submitted of appellant’s
complaint letter to the attorney general’s office prior to the 270 days) both did in
fact raise a fact issue regarding appellant’s defense sufficient to materially
dispute movant’s summary judgment evidence.
Appellant points to the mentioned evidence regarding appellant’s defense
that the training academy director refused to allow him to apply for admission
based on age and refused to accommodate a disability. And that the Brooks
County Judge (appellee’s affiant in the motion for partial summary judgment)
refused to provide funding, provided to all other regularly, for appellant to
attend mandatory training that is the subject of this court’s judgment. I stress
that such funding was commonplace for Brooks County officials attending
mandatory training. And the movant representing the Texas attorney general’s
office presented evidence as well that defendant wrote to the attorney general
complaining of this, prior to the 270 day deadline to receive training for
licensure (and this may be the best evidence to review). Of note is the fact that
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appellant had already been through this same academy years earlier and had
obtained his license after such enrollment and completion of academy training.
ISSUE 2
The government often utilizes motions such as this to prevent its
opposition from getting his day in court. What do they have to lose? When are
they sanctioned for doing so? Constable Soliz probably wins his jury trial on the
merits in this case and the government is aware of this. What jury would not
apply common sense and heavy weight to the prohibition appellant faced while
trying to comply with training? This court has prevented such jury reasoning.
Not only does the government file frivolous motions to the government courts
on a regular basis, but it simultaneously knowingly protects lawbreaking
government agents from exposure at trial under oath.
ISSUE 3
Appellant has raised due process as a violation below. Not only does
appellant clearly raise due process in his answer to the lawsuit, but the trial court
preferred and held a hearing on this motion and appellant raised all the issues
expressed here, and answered the court's questions and more at such hearing.
Appellant did so by way of explanation of his points in his response to the
motion for partial summary judgment. This discussion was recorded and has
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been provided to this court. But beyond that, when is not ruling correctly on a
motion for summary judgment, and not ruling correctly on appeal, therefore not
providing a litigant with his properly requested jury trial, not a due process
violation? This court may on its own volition, recognize and rule upon due
process violations. It may not, though, pretend they do not exist if not raised.
Such rulings are left for other issues not of constitutional dimentions. For this
court to allow such a travesty is in and of itself a due process violation.
Appellate courts exist to rectify errors below and such is not occurring here.
PRAYER
Wherefore, premises considered, Appellant prays that this motion for
reconsideration en banc be unconditionally granted, that this Court grant the
relief sought (allow a trial on the merits to proceed) or set the matter for oral
argument and after argument, reverse the judgment of the courts below and
remand the case for trial on the merits.
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the attached and foregoing
document will be served on opposing counsel.
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CERTIFICATE OF COMPLIANCE
The undersigned does hereby certify the word count in the body of motion
to be well under the maximum limit.
Respectfully submitted,
/s/
Rick Soliz
T.B.N. 00785013
P.O. Box 4051
Houston, Texas 77210
713-228-1900
Pro Bono Attorney for Appellant
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