                                   NO. 07-09-0112-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                DECEMBER 7, 2009
                         ______________________________

                                   TERRY LYNN SMITH,

                                                                     Appellant

                                            V.

                   ROY CLINTON FARRELL, JR., individually and as
                 trustee of the ROY CLINTON FARRELL, JR. TRUST,

                                                                     Appellee
                       _________________________________

            FROM THE 46th DISTRICT COURT OF WILBARGER COUNTY;

                  NO. 24,777-A; HON. DAN MIKE BIRD, PRESIDING
                       ________________________________

                              MEMORANDUM OPINION
                         ___________________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Terry Lynn Smith appealed from a final summary judgment and contends that the

trial court erred in granting it because he invoked his right against self-incrimination.

Instead, it allegedly should have abated the suit until the State completed its criminal

investigation of him. We affirm.

      Abatement

      We first address the contention that the trial court should have indefinitely abated

the suit because of an allegedly pending criminal investigation involving Smith. He did not
want to have to invoke his privilege against self-incrimination and thereby risk the

consequences that may arise for doing so. The issue is overruled.

        The record before us contains neither affidavits nor evidence supporting the

allegations about the pendency of criminal proceedings, their scope, their duration, the

entity pursuing them or the like. Rather, Smith’s then attorney simply mentioned their

existence through the motion to abate.1 Yet, allegations by an attorney appearing in

pleadings or motions are not evidence. Love v. Moreland, 280 S.W.3d 334, 338 (Tex.

App.–Amarillo 2008, no pet.). Without evidence of record establishing the legitimacy of his

allegations, we have no way of assessing the bona fides of the claim or the trial court’s

action viz it. Or, to paraphrase ipse dixit, “it ain’t so just because you say it’s so,” you have

to prove it. See In re Edge Capital Group, Inc.,161 S.W.3d 764, 768 (Tex. App.–Beaumont

2005, no pet.) (involving the invocation of the Fifth Amendment to halt discovery in a civil

proceeding and noting that the trial court erred in granting a protective order because,

among other things, the complainant presented no evidence to support his claim).

        Summary Judgment

        Next, Smith complains about the trial court’s entry of summary judgment. This was

purportedly improper because he invoked his claim against self-incrimination and the trial

court used that claim as basis for entering the judgment. We overrule the issue.

        Smith cites to nothing in the judgment that begins to suggest that the trial court

granted summary judgment because he invoked his privilege against self-incrimination.

Instead, the record discloses that Farrell served Smith with requests for admissions which


        1
         It does appear that all litigants concede that any crim inal investigation did not involve property owned
by Farrell.

                                                        2
Smith failed to timely answer. Consequently, the requests were deemed admitted without

court action. TEX . R. CIV. P. 198.2(c). Those admissions and the affidavit attached to the

motion for summary judgment provided the evidentiary basis for entry of the judgment.

Finally, nothing of record illustrates that Smith ever sought to be relieved of the deemed

admissions.

       Accordingly, the summary judgment is affirmed.



                                                Brian Quinn
                                                Chief Justice




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