ACCEPTED
04-10-00484-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/11/2015 10:42:22 AM
04-14-00551-CV KEITH HOTTLE
CLERK
NO. 04-10-00484-CV
IN THE COURT OF APPEALS FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
FOURTH JUDICIAL DISTRICT 03/11/2015 10:42:22 AM
KEITH E. HOTTLE
SAN ANTONIO, TEXAS Clerk
PABLO SOLIZ,
Appellant,
VS.
THE STATE OF TEXAS,
Appellee.
APPEAL FROM
THE 79TH JUDICIAL DISTRICT COURT
BROOKS COUNTY, TEXAS
STATE’S BRIEF
Kent S. Richardson
Assistant Attorney General
P.O. Box 12548
Austin, Texas 78711-2548
State Bar No.24003262
kent.richardson@texasattorneygeneral.gov
(512) 936-1348 Tel.
(512) 370-9741 Fax
Attorney for the State of Texas
NAMES OF PARTIES
Appellee: State of Texas
Attorneys for the State: Ken Paxton, Attorney General
At trial: Kent S. Richardson, Assistant Attorney General
Zindia Thomas, Assistant Attorney General
On appeal: Kent S. Richardson
Assistant Attorney General
P.O. Box 12548
Austin, Texas 78711-2548
State Bar No.24003262
Attorney for the State of Texas
Appellant: Pablo Soliz
Attorney:
At trial: Rick Soliz
P.O. Box 4051
Houston, Texas 77210
On appeal: Rick Soliz
P.O. Box 4051
Houston, Texas 77210
ii
TABLE OF CONTENTS
NAMES OF PARTIES ............................................................................................... II
TABLE OF CONTENTS ..........................................................................................III
INDEX OF AUTHORITIES .................................................................................... IV
STATEMENT OF THE CASE .................................................................................. 2
STATEMENT OF FACTS ......................................................................................... 3
SUMMARY OF THE ARGUMENT ........................................................................ 4
ARGUMENT................................................................................................................ 5
STATE’S RESPONSE TO POINT OF ERROR NO. 1 ....................................... 5
APPELLANT HAS NOT BEEN DENIED DUE PROCESS BY THE ADJUDICATION OF
THE CASE BY SUMMARY JUDGMENT.
STATE’S RESPONSE TO POINT OF ERROR NO. 2 ....................................... 6
THERE ARE NO GENUINE ISSUES OF MATERIAL FACT TO THE SOLE ISSUE OF
EVIDENCE OF LICENSURE.
CONCLUSION ............................................................................................................ 8
PRAYER ....................................................................................................................... 8
CERTIFICATE OF COMPLIANCE (TRAP 9.4)................................................... 9
CERTIFICATE OF SERVICE ................................................................................ 10
iii
INDEX OF AUTHORITIES
RULES AND STATUTES
TEX.CIV.PRAC. & REM.CODE § 66.001 et seq........................................................ 2
TEX.LOC.GOVT.CODE. § 86.0021 ................................................................... 2,3,6,7
Tex. R. App. Proc. 9.4 ................................................................................................... 9
Tex. R. App. Proc. 38.2 ................................................................................................. 2
Tex. R. Civ. Proc. 166a .................................................................................................. 6
CASES
Buck v. Palmer, 381 S.W.3d 525 (Tex. 2012) .............................................................. 7
Gulbenkian v. Penn, 252 S.W.2d 929 (Tex. 1952) ....................................................... 5
Knutson v. Ripson, 354 S.W.2d 575 (Tex. 1962) ......................................................... 5
MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986) ......................................................... 6
Querner Truck Lines, Inc. v. Alta Verde Indus., Inc., 747 S.W.2d 464
(Tex. App. - San Antonio 1988, no writ) ................................................................. 5
Siegler, Inc. v. Perez, 819 S.W.2d 470 (Tex. 1991) ...................................................... 6
Tribble & Stephens Co. v. Consol Svcs., Inc., 744 S.W.2d 945 (Tex.
App. - San Antonio 1987, writ denied) .................................................................... 5
iv
NO. 04-10-00484-CV
IN THE COURT OF APPEALS
FOR THE
FOURTH JUDICIAL DISTRICT
SAN ANTONIO, TEXAS
PABLO SOLIZ,
Appellant,
VS.
THE STATE OF TEXAS,
Appellee.
APPEAL FROM
THE 79TH JUDICIAL DISTRICT COURT
BROOKS COUNTY, TEXAS
TRIAL COURT CAUSE NO. 14-02-16542-CV
STATE’S BRIEF
TO THE HONORABLE JUSTICE OF THE COURT OF APPEALS:
COMES NOW the State of Texas, by and through her Assistant Attorney
General, Kent S. Richardson, and files this Brief in Opposition to Appellant’s First
Page 1
Supplemental Brief pursuant to TEX.R.APP.PROC. Rule 38.2 and would show the
Court the following:
STATEMENT OF THE CASE
This is a quo warranto case filed pursuant to Chapter 66 of the Civil Practice
and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 66.001 et seq (Vernon
1985). Section 86.0021(b) of the Texas Local Government Code requires elected
constables to provide to the commissioners court evidence the constable has been
issued a permanent peace officer license under Chapter 1701 of the Occupations Code
on or before the 270th day after taking office. Tex. Loc. Gov. Code Ann. §86.0021(b)
(Vernon 2005). Failure to comply with the requirement operates as a forfeiture of
office for which a quo warranto action may be initiated. Id. The State of Texas through
the Attorney General, filed an information in the nature of quo warranto concerning
Appellant Pablo Soliz, who was the elected constable for Precinct Three of Brooks
County1. SCR 3.2 After considering a motion for partial summary judgment, the trial
1
The state filed a quo warranto action based on three allegations: (1) failure to meet a licensure
deadline for which judgment was granted, (2) that Appellant was a convicted felon and (3) that
Appellant was not a resident of the precinct in which he was elected constable. This appeal deals only
with the first issue for which judgment was granted by through a motion for partial summary
judgment.
2
“CR” refers to the Clerk’s Record of papers filed in the trial court and followed by the page number.
“SCR” refers to the Supplemental Clerk’s Record of papers filed in the trial court and followed by
the page number. “RR” will refer to the Reporter’s Record and followed by the page number.
Page 2
court granted the motion and rendered judgment removing Appellant from office. CR
81-82 and 97-98, respectively.
STATEMENT OF FACTS
Appellant Pablo Soliz was elected constable for Precinct 3 of Brooks County on
November 6, 2012. SCR 28-32. Appellant took office on January 1, 2013. See Tex.
Govt. Code Ann. 601.003(a) (Vernon 1993). Appellant was required to obtain and
present evidence of a permanent peace officer license to the commissioners court by
the 270th day after taking office. Tex. Loc. Gov. Code Ann. §86.0021(b) (Vernon
2005). Appellant did not present evidence that he had obtained a permanent peace
officer license by the statutory deadline. CR 35; SCR 19. This fact has not been
disputed by Appellant. SCR 34-37; RR 28. The State of Texas filed a motion for
summary judgment based on the undisputed fact that no evidence of licensure had been
presented to the Brooks County Commissioners Court. SCR 8-15. Based upon the
undisputed fact that there was no evidence of licensure presented by Appellant, the
district court granted partial summary judgment. CR 81-82. After disposing of other
grounds for removal, the district court then signed and entered a final judgment of
removal. CR 97-98.
Page 3
SUMMARY OF THE ARGUMENT
Appellant has not been denied any rights in this case to a jury trial. Juries are
factfinders as to the elements of a cause of action. In this case, only one factual element
is required to be proven by the state – whether an elected constable has provided
evidence to the commissioners court that he has obtained a permanent peace officer
license by the 270th day after taking office. There is no other question for a jury to
decide. In this case, it has always been undisputed that Appellant had not provided
such evidence of licensure to the commissioners court. In fact, Appellant never
obtained a peace officer license at all during his time as elected constable. Appellant
bases his case and this appeal on reasons why he did not obtain a peace officer license,
which is itself additional admission of the sole element to the state’s case. The
arguments made by Appellant operate as a type of affirmative defense to the violation
of the licensure statute at issue. However, there is no affirmative defense available in
the statute for the failure to provide evidence of licensure as a peace officer.
There is no genuine issue of material fact in this case. Again, there is no dispute
that Appellant did not present evidence of obtaining a peace officer license by the
statutory deadline. Appellant claims that his reasons for not obtaining the license
operate as a defense to not meeting the deadline. As stated above, these reasons operate
in practice as a type of affirmative defense which is not found in the statute and is not
available to Appellant to defeat this action.
Page 4
ARGUMENT
STATE’S RESPONSE TO POINT OF ERROR NO. 1
APPELLANT HAS NOT BEEN DENIED DUE PROCESS BY THE
ADJUDICATION OF THE CASE BY SUMMARY JUDGMENT.
The jury functions as the finder of fact. Tribble & Stephens Co. v. Consol.
Services, Inc., 744 S.W.2d 945, 949 (Tex. App. - San Antonio 1987, writ denied).
The jury does not answer questions of law. Knutson v. Ripson, 354 S.W.2d 575, 576
(Tex. 1962).
This court stated that summary judgment does not violate a party's right to a
trial by jury where there are no material issues of fact. Querner Truck Lines, Inc. v.
Alta Verde Indus., Inc., 747 S.W.2d 464, 469 (Tex. App. – San Antonio 1988, no
writ). The court reasoned that the purpose of summary judgment is to avoid the
“conventional trial of clearly unmeritorious claims or untenable defenses”. Id. The
Supreme Court of Texas held that when courts hear motions for summary judgment
they determine if there are any issues of fact to be tried, and do not weigh the
evidence or determine its credibility. Gulbenkian v. Penn, 252 S.W.2d 929, 931
(Tex. 1952). Therefore summary judgment does not violate the party's right to a trial
by jury. Id.
In this case, the sole issue that could have been presented to a jury for
determination was whether Appellant had provided evidence of his licensure to the
Page 5
commissioners court by the statutory deadline of 270 days after taking office. Tex.
Loc. Gov. Code Ann. §86.0021(b) (Vernon 2005). As the record reflects, there is no
dispute that Appellant had failed to meet the statutory deadline and the implicit
requirement of obtaining a peace officer license. SCR 34-37; RR 28.
The arguments and facts that Appellant would like to rely upon are those that
operate as a kind of affirmative defense. See Appellant’s First Supp. Br. at 6-11; 12-
14. However, no such defense can be found in the statute. See generally Tex. Loc.
Gov. Code Ann. §86.0021 (Vernon 2005). Because no such defense is available for
a quo warranto action based upon a violation of §86.0021, any such facts would be
irrelevant to a factfinder. Therefore, no violation of due process occurred as a result
of the trial court’s granting of a motion for summary judgment.
STATE’S RESPONSE TO POINT OF ERROR NO. 2
THERE ARE NO GENUINE ISSUES OF MATERIAL FACT TO THE
SOLE ISSUE OF EVIDENCE OF LICENSURE.
When a plaintiff moves for summary judgment on her cause of action, she is
entitled to summary judgment if she proves all essential elements of her claim as a
matter of law. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). The plaintiff
must show there are no genuine issues of material fact. TEX. R. CIV. P. 166a(c); Lear
Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). A grant of summary
Page 6
judgment is reviewed de novo by the appellate court. Buck v. Palmer, 381 S.W.3d
525, 527 (Tex. 2012).
The state filed a motion for partial summary judgment on the issue of whether
Appellant had failed to meet his duty to provide evidence of obtaining a permanent
peace officer license to the Brooks County Commissioners Court by the 270th day
after taking office.3 SCR 7-34. Tex. Loc. Gov. Code Ann. §86.0021(b) (Vernon
2005). This fact was established by the affidavit of County Judge Raul M. Ramirez
showing that as of the date of that affidavit, and after the 270th day after taking office,
Appellant did not present evidence of his licensure as a peace officer as required.
CR 35; SCR 19. As noted above, there is no dispute that Appellant did not provide
such evidence to the commissioners court. SCR 34-37; RR 28. The failure to meet
the statutory deadline operates as a forfeiture of the office held and removal by quo
warranto proceeding is warranted. Tex. Loc. Gov. Code Ann. §86.0021(b) (Vernon
2005).
The facts which Appellant argues create an issue of material fact do not
address the simple question whether evidence of his licensure as a peace officer was
presented to the commissioners court as required by the statute. See Appellant’s
3
The state’s motion for partial summary judgment addressed the allegations of failure to show
evidence of licensure by the statutory deadline and status as a convicted felon making Appellant
ineligible for his office.
Page 7
First Supp. Br. at 17-18. The facts Appellant argues create the fact issue operate
more as an excuse for not obtaining the required license. Id. The facts urged by
Appellant do not create an issue of material fact in determining whether a violation
of the statute occurred. Therefore, the granting of the motion for summary judgment
as to the sole issue of evidence of licensure was proper by the trial court.
CONCLUSION
For the reasons stated herein, there was no violation of due process in the trial
court’s grant of summary judgment where a jury would have no additional facts to
determine than those which were not in dispute. For the same reason, there was no
genuine issue of material fact as the dispositive facts were not in dispute. Therefore,
disposition of this case by summary judgment was appropriate.
PRAYER
FOR ALL THESE REASONS, the State respectfully requests that this
Honorable Court overrule Appellant’s points of error and affirm the judgment of the
trial court.
Respectfully submitted,
/s/ Kent S. Richardson
KENT S. RICHARDSON
Assistant Attorney General
Page 8
Criminal Prosecutions Division
State Bar No. 24003262
P. O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 936-1348
(512) 370-9741 (FAX)
ATTORNEY FOR THE STATE
CERTIFICATE OF COMPLIANCE WITH
TEXAS RULE OF APPELLATE PROCEDURE 9.4
I do hereby certify that this brief does complies with Tex. R. App. Proc. 9.4 in
that it contains 1,302 words, in Microsoft Word 14.0, Times New Roman, 14 point
font.
/s/ Kent S. Richardson
KENT S. RICHARDSON
Assistant Attorney General
Page 9
CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing brief has been e-mail-delivered to:
Pablo Soliz, Appellant
by and through his attorney of record:
Rick Soliz
P.O. Box 4051
Houston, Texas 77210-4051
jrsoliz@att.net
on this the 11th day of March, 2015.
/s/ Kent S. Richardson
KENT S. RICHARDSON
Assistant Attorney General
Page 10
Pablo Soliz v. State
Combined Opinion