                                                                                                   ACCEPTED
                                                                                              13-14-00584-CV
                                                                                THIRTEENTH COURT OF APPEALS
                                                                                      CORPUS CHRISTI, TEXAS
                                                                                        2/14/2015 10:27:37 PM
                                                                                             DORIAN RAMIREZ
                                                                                                       CLERK

                                   No. 13-14-00584-CV

                                                                        FILED IN
                                                                13th COURT OF APPEALS
                                                             CORPUS CHRISTI/EDINBURG, TEXAS
                                                                 2/17/2015 8:00:00 AM
                                                                  DORIAN E. RAMIREZ
                                          In The                         Clerk


                         Thirteenth Court of Appeals
                                             

                                     JOHNNY PARTAIN,

                                                     Appellant

                                              v.

                             ESTATE OF JAMES HAROLD MAPLES

                                                      Appellee



                                 From County Court at Law No. 5

                                     Hidalgo County, Texas

                                           

                                       Apellee’s Brief

                                             


Oral argument requested if
necessary                                       William McCarthy, Attorney at Law
                                                124 S. 12th Street
                                                Edinburg, Texas 78539
                                                P: 956-383-5654
                                                F: 956-382-0001
                             No. 13-14-00584-CV




                                  In The
                 Thirteenth Court of Appeals
                                     

                              JOHNNY PARTAIN,

                                            Appellant

                                      v.

                    ESTATE OF JAMES HAROLD MAPLES

                                            Appellee

                                     

                               Apellee’s Brief

                                     

TO THE HONORABLE JUSTICES OF THIS COURT:


      COMES NOW William McCarthy Appellee in the above styled and

numbered cause and files his Appellee’s Brief, and respectfully shows unto

the Court the following. Defendant will be referred to as Appellee. Partain

will be referred to as Appellant. Reference to the clerk’s record will be

CR(page). References to the Reporter’s record will be RR(page).


                                                                              ii
                IDENTITY OF PARTIES AND COUNSEL



Appellant:


   A. JOHNNY PARTAIN, 7020 N. 16th Street, McAllen, Texas 78504; phone

      956-240-1821; partain@atlastechnologies.biz.




Appellee:


   B. The Estate of James Harold Maples, through William John McCarthy

      attorney for the estate off James Harold Maples, 124 S. 12th Street,

      Edinburg, Texas 78539; mccarthy.625@gmail.com.




                                                                             iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................................. iii
INDEX OF AUTHORITIES ......................................................................................................... v
STATEMENT OF THE CASE ..................................................................................................... 1
ISSUES PRESENTED .................................................................................................................. 2
SUMMARY OF ARGUMENT ..................................................................................................... 6
ARGUMENTS ............................................................................................................................... 7
CONCLUSION ............................................................................................................................ 16




                                                                                                                                        iv
                              INDEX OF AUTHORITIES

1. Bellore SA v. Import Warehouse, 448 F2d 317, (5th Circuit) ............ 15

2. Breceda v. Wii, 224 3d 237, (App8 2005) .......................................... 8

3. Chenault v. Phillips, 914 SW2d 140, 141 (TX 1996) ........................... 7

4. Constitution Article 5 § 19 ................................................................ 7

5. Craven v. Daugin Travers Company 770 SW2d 573 (Houston 14th Dist.

    1989) writ denied. .......................................................................... 15

6. Ex Parte Tucci, 859 SW2d 1, 2, n. 4 (TX 1993) .................................. 7

7. Gerjets v. Davila 116 SW3d 864 (Corpus Christi, 2003) ................... 15

8. Government Code § 27.03 (a)(2)....................................................... 7

9. Gilliam v. Baker, 195 SW2d 824 (Houston, 1946) ref nre .................. 8

10. Hennigan v. Hennigan, 677 SW2d 495, 496 (TX 1984) ...............13, 17

11. Henke v. Peoples State Bank, 6 SW3d 717, 720 (Corpus Christi 1999,

    pet. dismissed) .................................................................................. 7

12. In re TX Nat. Res – Conserve, Comm’n., 85 SW3d, 201, 205 (TX.

    2002). ............................................................................................... 7

13. Kassim v. Carlisle Interests (App 5 2010) 308 SW3d 537 .................. 8

14. Loville v. Loville, 944 SW2d 818, 819 (Beaumont - 1997) writ

    denied.” ............................................................................................ 9
                                                                                                           v
15. Republic Ins. v. Millar 525 SW2d 780 (Houston 14th Dist. 1992) ..... 15

16. Rusk v. Rusk 5 SW3d 299 (Houston 14th Dist. 1999) ....................... 14

17. Tanner v. McCarthy 274 SW3d 311 (Houston 1st Dist. 2008). ........ 14

18. Texas Civil Practices and Remedies Code § 31.002......................... 14

19.TRCP 680 ........................................................................................... 7




                                                                                                        vi
                      STATEMENT OF THE CASE

Appellant is appealing from the dissolution of a Temporary Restraining

Order following a hearing in County Court at Law No. 5.




                                                                         1
                            ISSUES PRESENTED

1. Denial of a Temporary Restraining Order is not appealable.



2. Neither County, District, Appellate Courts nor the Supreme Court has

   jurisdiction to rule on a final judgment by a Justice Court in the absence

   of a timely appeal.



3. County Court No. 5 did not abuse its authority in denying injunctive

   relief. The exercise of its judgment is an integral part of the judicial

   process and not an abuse of discretion.



4. Texas Property Code § 24 is intrinsically constitutional. Statutes, acts

   and codes passed and adopted by the legislature are enacted under the

   authority of and pursuant to the constitution.



5. Turnover Order No. 5 was eradicated by a Federal Court judgment which

   became final.




                                                                                2
                          STATEMENT OF FACTS


        FACT, Mr. Partain broke into and occupied a condo from which he

was evicted and which judgment became final. He illegally leased the

premises to Dora Martinez. See Appendix 1 and 2.


        FACT, an FED action was filed and Mrs. Martinez, having twice failed

to appear was evicted. Mr. Partain attempted to represent Mrs. Martinez,

but not being a licensed attorney was not allowed to practice law without a

license. That judgment became final and was not timely appealed. See

Appendix 3.


        FACT, Mr. Partain then filed a Motion for TRO with County Court at

Law No. 5 which was argued and subsequently dissolved. See Appendix 4.


        FACT, Mr. Partain then attempted to get another TRO from County

Court at Law No. 7 to bar any enforcement action, which was denied. Mr.

Partain then filed an Emergency Motion with the Court of Appeals, which

was dismissed. See Appendix 5.


        FACT, A Writ of Possession was issued and executed in October,

2014.


                                                                               3
      FACT, Mr. Partain then sought in an ex parte action relief from

County Court at Law No. 8 after his motion was denied by County Court at

Law No. 7. Partain asked for incarceration and disbarment of adverse

Counsel, which County Court of Law No. 8 did not act upon. In addition, Mr.

Partain filed a grievance with the State Bar. The State Bar denied his action.


      FACT, Mr. Partain is not an attorney; has never gone to law school; is

not licensed to practice, has no legal training and is a frustrated, wannabe

lawyer.


      FACT, layman Partain never filed a Petition for a Turnover Order

pursuant to the statute and never invoked the assistance of the Court or

had a receiver appointed. He drafted his own order and subsequently

obtained Turnover Order No. 5 after the jurisdiction of the issuing court,

County Court of Law 1, had expired. During this time, Mr. Partain resorted

to self-help broke into premises, seized assets, cash, checks, mail, records

and other property.


      FACT, Mr. Partain’s Turnover Orders were eviscerated in a Federal

Court Adversary Proceeding which he did not appeal and which, became a

final judgment. See Appendix 6. Mr. Partain clings to his Turnover Order


                                                                               4
No. 5, like a rabbit’s foot because he has no concept of final judgments and

the full faith and credit effect accorded to them.


      FACT, Mr. Partain has been through over 17 legal proceedings since

Counsel’s involvement with this case. Mr. Partain resents anyone

responding to his complaints and has steadfastly refused to appear in court

proceedings that required him to account for assets illegally seized.


      FACT, Mr. Partain’s frustrations are reflected in his suits against:


    Four Federal District Court judges

    Two Justices of the Peace

    The Mayor of McAllen

    The Mayor of Edinburg

    Deputies who served writs

    The Sheriff of Edinburg

    The Police Chief of McAllen

    Four District and County Courts

    The Hidalgo County District Attorney


and multiple Appellate actions arising from his endless attempts to

relitigate adversely decided issues.
                                                                             5
                  SUMMARY OF ARGUMENT


1. Denial of a Temporary Restraining Order is not appealable.

2. County Court at Law No. 5 and the Court of Appeals are without

   jurisdiction to pass on an FED judgment, which has become final.

3. The dissolution after hearing of a TRO by the issuing court cannot

   constitute an abuse of discretion.

4. Texas Property Code Provision, § 24 cannot be unconstitutional. The

   Code provision was enacted pursuant to constitutional authority.

5. The Turnover Order was eradicated by a Federal Court.




                                                                         6
                                  ARGUMENTS

1. DENIAL OF A TEMPORARY RESTRAINING ORDER IS NOT APPEALABLE


  The denial of a Temporary restraining order cannot be appealed. In re

  TX Nat. Res – Conserve, Comm’n., 85 SW3d, 201, 205 (TX. 2002); Ex

  Parte Tucci, 859 SW2d 1, 2, n. 4 (TX 1993); Henke v. Peoples State Bank,

  6 SW3d 717, 720 (Corpus Christi 1999, pet. dismissed); TRCP 680 (TRO

  “shall expire by its terms.’)


2. COUNTY COURTAT LAW NO. 5 DID NOT HAVE JURISDICTION TO PASS

ON A JUSTICE COURT JUDGMENT WHICH BECAME FINAL


          Justice Courts have original and exclusive jurisdiction over

     Forcible Entry and Detain (FED) actions. The jurisdiction of Texas

     courts is conferred solely by the Texas Constitution and state

     statutes. Chenault v. Phillips, 914 SW2d 140, 141 (TX 1996). The

     justice courts were created by the Texas Constitution. See Texas

     Constitution Article 5, § 19. Justice courts in the precinct where the

     real property is located have original and exclusive jurisdiction over

     eviction suits. Government Code § 27.03 (a)(2).



                                                                              7
    District Courts lack jurisdiction to issue an injunction restraining

a landlord from terminating a lease since the issue was subject to

Justice Court’s possessive, original and exclusive jurisdiction over FED

actions. Kassim v. Carlisle Interests (App 5 2010) 308 SW3d 537.

    “…District Court’s order did not restrain landlord from pursuing

their FED action in Justice of the Peace Court.” Breceda v. Wii (App 8

Dist 2005) 224 SW3d 237.

    In short, District Courts and County Courts have no authority to

restrain Justice Courts from determining a right of immediate

possession. The 11th District Court of Houston was without

jurisdiction to grant injunctive relief against FED proceedings in the

absence of showing that the County Court was without jurisdiction to

proceed or that the judgment entered was void. Gilliam v. Baker, 195

SW2d 824 (Houston, 1946) ref nre.

    Appellant has advanced the argument that if the value of the

property exceeds $10,000 a Justice Court exceeds its jurisdiction in

deciding an FED action. Appellant has confused monetary jurisdiction

with subject matter jurisdiction. Monetary jurisdiction concerns itself

with the amount in controversy. Subject matter jurisdiction focuses

                                                                           8
on the type of case a particular tribunal can hear, for example, an

Admiralty Court or the Railroad Commission.

     Historically, the distinction between those legal concepts is

clear. The difference is so fundamental that it exists in all legal

systems in being.

     In fact, Appellant’s argument was applied in an effort to extend

the subject matter jurisdiction of County Courts to resolve the

determination of title to land because their monetary jurisdiction had

been increased. In rejecting this analysis, the Court of Appeals noted:

     Appellees provided neither authority nor good
     reason for this court to ignore completely § 26-043,
     which clearly and specifically limits the subject
     matter jurisdiction of County Court regardless of
     the amount in controversy; limitations placed on
     statutory County Courts by § 25.0003(c). Loville v.
     Loville, 944 SW2d 818, 819 (Beaumont - 1997) writ
     denied.”


     The equation of monetary and subject matter jurisdiction is

error and does violence to settled legal principles that are too plain

for argument.




                                                                         9
3. THE DISSOLUTION OF THE TRO FOLLOWING A HEARING IN THE COURT

WHERE APPELLANT FILED HIS ACTION CANNOT CONSTITUTE AN ABUSE OF

DISCRETION


         The decision of the County Court on the action pending before it

     is nothing more and nothing less than the exercise of judicial

     judgment over a controversy pending before it. This is the essence of

     judicial resolution of a legal matter. What else is the judge to do

     except decide the case before him?


         Appellant filed his request for a TRO with County Court at Law

     No. 5. He did this without standing after he illegally occupied

     premises following the death of James H. Maples on March 29, 2015.

     This property was owned by James H. Maples since 1978. The Maples

     family insisted that Counsel reinstitute another FED action, which

     operated to the benefit of Mr. Partain.


         In the interim, Appellant misrepresented to a Dora Martinez

     that he owned the property. His tenant failed to show for two

     eviction proceedings and a judgment was taken and became final.

     The action in County Court at Law No. 5, came nine days after the


                                                                           10
rendition of judgment in the Justice Court and could not constitute

an appeal of the Justice Court proceeding.


     At the hearing, Appellant presented only argument. Appellant

requested the Court to make findings of fact and conclusions of law.

His suit for injunctive relief was not an appeal of the FED action. In

this respect, his pleadings did not comply with the requisites for

injunctive relief under the Texas Rules of Civil Procedure and the

court dissolved the injunction. The ruling was a negative finding that

Appellant did not prove his case. It is a failure to find that does not

need evidentiary support.


     His bizarre assignments of error do not raise a single factual

sufficiency issue. He has not shown himself entitled to judgment as a

matter of law so he has failed to raise any legal sufficiency points.

Nor has he alleged that the finding of the court was so against the

great weight and preponderance of the evidence that it was

manifestly unjust or erroneous. So that Appellate point has fallen by

the wayside. Appellant simply, in the words of a Federal Bankruptcy

judge predicated his complaint on the sole ground “…that he is dis-


                                                                          11
     satisfied with the result.” This is another classic mistake that a

     layman would make.


          After he lost, Appellant tried to have County Court at Law No. 7

     grant him injunctive relief in a matter that had already been decided

     by County Court at Law No. 5 in an effort to relitigate the case. After

     losing there, Appellant then went to County Court at Law No. 8 trying

     to duplicate his unsuccessful efforts and called for the incarceration

     and disbarment of adverse Counsel, where he lost again. See

     Appendix 12.


4. TEXAS PROPERTY CODE § 24 CANNOT BE UNCONSTITUTIONAL


          Appellant argues that a Property Code provision which has the

     force of a statute is inherently unconstitutional because after hearing

     by courts of competent jurisdiction, it deprives him of property

     without due process of law. First, without getting into what or how

     much process is due, in view of the previous 17 proceedings since

     this Counsel’s involvement, the argument is so obviously lunatic it

     does not warrant a response.




                                                                           12
     To state it simply, Federal and State Court judgments by courts

of competent jurisdiction, if allowed to become final are entitled to

full faith and credit throughout the nation. Simply because a litigant

loses a case, which may result in a loss of money or property, does

not constitute the substantial equivalent of a denial of due process,

exceeding the scope of judicial authority or a lack of constitutionality

because one side has lost and one side has won. That is the nature of

litigation.


     Appellate Courts have the authority to award damages for

frivolous appeals under the Texas Rules of Appellate Procedure

(TRAP) 62; Hennigan v. Hennigan, 677 SW2d 495, 496 (TX 1984). This

is a frivolous appeal. Appellee requests that he be awarded $45,000

in damages for the numerous, frequent and repeated filings and

associated legal costs in terms of time and energy reflective of the

infinite relitigation that is characteristic of Appellant’s endless refusal

to accept adverse judgments. This blank wall irrationality that seeks

to have the courts determine that black is white, up is down, in is out

and square is round needs to be brought to an end.



                                                                         13
5. THE TURNOVER NO 5 WAS ERRADICATED BY A FEDERAL COURT


          Infamous Turnover Order No 5 was neutralized and held for

     naught by Judge Marvin Isgur in a Federal Court Adversary

     Bankruptcy Proceeding. For Chronology, See Appendix 7; Judgment

     08-27-06 See Appendix 7; Motion for Contempt Exhibit 2, See

     Appendix 8-9. Despite this, he keeps clinging it to it like an amulet,

     ignoring the fact that it is without legal effect.


          Examination of the forty-page docket sheet shows no action for

     a turnover proceeding pursuant to statute was ever initiated in

     County Court at Law No. 1, pursuant to TCPRC § 31.002. This order

     was concocted by Partain at his sweeping best. Preliminary

     requirements that the debtor own property that cannot be attached

     or levied upon by a court during a legal proceeding and that is not

     exempt from process were never met. Without this, the court can

     grant no relief under the statute. Tanner v. McCarthy 274 SW3d 311

     (Houston 1st Dist. 2008). This is an extraordinary remedy which

     courts are loath to utilize except as a last resort. Rusk v. Rusk 5 SW3d

     299 (Houston 14th Dist. 1999). It cannot be used to attach assets not


                                                                              14
subject to attachment or that can be levied on by ordinary legal

process. In Gerjets v. Davila 116 SW3d 864 (Corpus Christi, 2003);

Bellore SA v. Import Warehouse 448 F2d 317 (5th Circuit 2006).


    Partain, without the aid of an appointed receiver or the Court

and without making proof of necessary facts to authorize the

invocation of the Turnover Statute to remove property, without

showing a lack of other legal remedies and without determining the

exempt or non-exempt nature of property subject to attachment,

started kicking in doors and removing property. The Turnover Statute

cannot determine property rights of judgment debtors Bellore SA v.

Import Warehouse 448 F2d 317 (5th Circuit 2006). It cannot

determine ownership of funds Craven v. Daugin Travers Company

770 SW2d 573 (Houston 14th Dist. 1989) writ denied.


    Most importantly, the Turnover Statute can never be used to

pre-empt the jurisdiction of a sister court with dominant jurisdiction.

Republic Ins. v. Millar 525 SW2d 780 (Houston 14th Dist. 1992).




                                                                     15
                               CONCLUSION

      Acquiring a comfortable understanding of the law is a difficult task.

The law consists of 10 main headings, 500 topics and in excess of 80,000

subtopics. Law school exposes us to only 40 courses. In addition, the law is

an expanding, evolving, organic thing so civil law changes every Monday

and criminal law every Friday. Moreover, there is sustentative and

procedural law at the state and federal level to say nothing of the

labyrinthian morass of administrative law coexisting in there own state and

federal spheres that are likewise changing.


      As difficult as this task is, it becomes impossible without seasoned

professionals steeped in its rules who after a period of practice elect to

instruct students. Absent such guidance and their compass, it becomes a

mass of contradictions wherein rules are befuddled by so many exceptions

that nothing of an affirmative nature seems to be said.


      People untrained in the law can have things explained, but that does

not guarantee understanding. The more one reflects on legal questions the

more ramifications they present. This has been no more than a partial

reconnaissance. Nor has their applicability to a specific set of facts been
                                                                              16
addressed. The lack of legal training and its consequence has been amply

demonstrate by the appellant.


                                  PRAYER

      For the reasons stated, Appellee asks that the requested relief be

denied. Appellee further asks hat this Court consider an award of damages

for the filing of a frivolous appeal under the authority of TRAP rule 62 and

Hennigan v. Hennigan, 677 SW2d 495, 496 (TX 1984).




                                                                               17
                  Thirteenth Court of Appeals

                                     

                              JOHNNY PARTAIN,

                                            Appellant

                                      v.

                     ESTATE OF JAMES HAROLD MAPLES

                                             Appellee

                                     




                        CERTIFICATE OF COMPLIANCE


       I, William J. McCarthy, Attorney at Law, hereby certify that this

Appellee’s Brief has a word count of 3048 words within conformance of

trap 9.4(i)(1).




                                                                           18
                 Thirteenth Court of Appeals

                                    

                             JOHNNY PARTAIN,

                                            Appellant

                                      v.

                    ESTATE OF JAMES HAROLD MAPLES

                                            Appellee

                                    




                          CERTIFICATE OF SERVICE




      I, William J. McCarthy, Attorney at Law, hereby certify that I have

caused to be delivered a true and correct copy of the Appellee’s Brief on or

before the 17th day of February, 2015 via email to: Johnny and Theresa

Partain, through Johnny Partain, Pro Se Litigant, 7020 N. 16th Street,

McAllen, Texas 78504; partain@atlastechnologies.biz .


Note: (Misrepresentations have been made concerning Appellant’s e-mail

address. Sometimes that address has been deliberately stated by Johnny


                                                                            19
Partain to adverse counsel as partain@atlastechnologies.diz . Appellant has

dodged service prior to this proceeding.)




William J. McCarthy, Attorney at Law

Texas Bar # 13372500

124 S. 12th, Edinburg, Texas 78539

Phone: 956.383.5654

Fax: 956.381.0002

Email: mccarthy.625@gmail.com




                                                                         20
