ACCEPTED
03-15-00521-CV
8424233
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/31/2015 1:29:05 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00521-CV
_____________________________
FILED IN
In the Court of Appeals 3rd COURT OF APPEALS
AUSTIN, TEXAS
for the Third Judicial District 12/31/2015 1:29:05 PM
JEFFREY D. KYLE
Austin, Texas Clerk
______________________________
Roger Fay,
Appellant-Plaintiff,
v.
Texas A&M University; Geochemical and Environmental Research Group;
The College of Geosciences and Maritime Studies; Dr. Ray Bowen; Dr. Robert
Duce; Dr. Norman Guinasso; Dr. Roger Sassen; and Dr. David Schink,
Appellees-Defendants.
______________________________
On Appeal from the 200TH Judicial District Court of Travis County, Texas
Honorable Amy Clark Meacham, Presiding
______________________________
APPELLEES’ RESPONSE TO
APPELLANT’S MOTION TO REINSTATE APPEAL
______________________________
KEN PAXTON LAURA A. BARBOUR
Attorney General of Texas Texas Bar No. 24069336
CHARLES E. ROY Assistant 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 Phone (512) 463-0447
Litigation Fax (512) 320-0667
ANGELA V. COLMENERO
Chief, General Litigation Division
ATTORNEYS FOR APPELLEES
Even if this Court accepts as true all of the conclusory statements in
Appellant Roger Fay’s Motion to Reinstate Appeal (“Motion”), Appellant Fay
still fails to provide this Court with an adequate basis to reverse the Court’s
dismissal of his appeal because once Appellant paid the appropriate fee to
have the clerk’s record transmitted to the Court of Appeals, his brief was due
within 30 days, as specified by Texas Rule of Appellate Procedure 38.6.
Fay’s counsel, Brian Cantrell, contends that he “never received notice
of a briefing schedule or any other communication from the Court due to a
problem with Counsel’s electronic mail system.” (Motion ¶ 2.) Mr. Cantrell
was, however, apparently receiving correspondence from the trial court, as
evidenced by the payment of costs for the clerk’s record on September 22,
2105. (Exhibit A.) Also on September 22, 2015, the clerk’s record was
transmitted to this Court as a result of the payment, as evidenced by the
attached confirmation filed in the District Court of Travis County. (Exhibit
B.)
Texas Rule of Appellate Procedure 38.6 states that “an appellant must
file a brief within 30 days . . . after the later of: (1) the date the clerk’s record
was filed . . . .” Accordingly, as of September 22, 2015, Mr. Cantrell was
aware that the clerk’s record had been filed because: (1) someone paid
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$539.00 to have the clerk’s record transferred on behalf of Appellant Fay, and
(2) there is no evidence to suggest Mr. Cantrell did not receive the notice of
transmission filed in the district court. Consequently, under Rule 38.6,
Appellant Fay had until October 22, 2015 to either file his brief or move for
an extension of that deadline.
Even absent any other correspondence from this Court, as the party
pursuing the appeal, Appellant knew—at the very least—that he had to file an
appeal in accordance with the schedule set forth in the Texas Rules of
Appellate Procedure. Moreover, absent any other correspondence from this
Court, Mr. Cantrell’s purported electronic mail issues did not prevent him
from calling the Court or checking the “Case Information” available publicly
online: http://www.search.txcourts.gov/Case.aspx?cn=03-15-00521-
CV&coa=coa03.
The party whose action starts the clock should not later be permitted to
claim ignorance of the standard deadlines that result from that party’s action.
Accordingly, Defendants Texas A&M University, Geochemical and
Environmental Research Group, The College of Geosciences and Maritime
Studies, Dr. Ray Bowen, Dr. Robert Duce, Dr. Norman Guinasso, Dr. Roger
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Sassen, and Dr. David Schink respectfully request that the Court deny
Appellant’s Motion to Reinstate Appeal.
PRAYER
For the foregoing reasons, this Court should deny Appellant’s Motion
to Reinstate Appeal.
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Respectfully submitted.
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil
Litigation
ANGELA V. COLMENERO
Chief, General Litigation Division
/s/ Laura A. Barbour
LAURA A. BARBOUR
Texas Bar No. 24069336
Assistant Attorney General
General Litigation Division
P. O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 463-0447
(512) 320-0667 fax
laura.barbour@texasattorneygeneral.gov
Attorneys for Appellees-Defendants
Texas A&M University, Geochemical
and Environmental Research Group,
The College of Geosciences and
Maritime Studies, Dr. Ray Bowen,
Dr. Robert Duce, Dr. Norman Guinasso,
Dr. Roger Sassen and Dr. David Schink
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CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document has been
served electronically through the electronic filing manager in accordance with
Tex. R. App. P. 9.5(b)(1) and via facsimile transmission on the 31st day of
December 2015, to:
C. Bryan Cantrell
CANTRELL, RAY & BARCUS, L.L.P.
P. O. Box 1019
Huntsville, Texas 77342
Fax: (936) 730-8535
Counsel for Appellant-Plaintiff Roger Fay
/s/ Laura A. Barbour
LAURA A. BARBOUR
Assistant Attorney General
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Exhibit A
Exhibit B