                                                                                                              ACCEPTED
                                                                                                          03-17-00392-CV
                                                                                                                21562872
                                                                                                THIRD COURT OF APPEALS
                                                                                                          AUSTIN, TEXAS
                                                                                                         1/2/2018 4:39 PM
                                                                                                        JEFFREY D. KYLE
                                                                                                                   CLERK
                                                                                            Joseph Nixon

                                                                                             Akerman LLP
                                                                                  1300 Post Oak
                                                                                     FILED   IN Boulevard
                                                                                                Suite 2500
                                                                             3rd COURT OF APPEALS
                                                                                       Houston,
                                                                                 AUSTIN,    TEXASTX 77056
                                                                             1/2/2018 4:39:29
                                                                                         T: 713 PM
                                                                                                623 0887
                                           January 2, 2018                     JEFFREYF:D.  713 960 1527
                                                                                              KYLE
                                                                                     Clerk
RE:      Sullivan v. Texas Ethic Commission, No. 03-17-00392-CV, in the Court of Appeals for
         the Third Judicial District of Texas, in Austin.


The Honorable Justices David Puryear,                                                 Via E-filing
Scott, Field, and Cindy Bourland
Third Court of Appeals
P.O. Box 12547
Austin, Texas 78711-2547

Appellant’s Response to the Post-Submission Letter Brief of the Texas Ethics Commission

Dear Justices Puryear, Field, and Bourland:

         I.     The Texas Ethics Commission (“TEC”) admits that the exemption contained

in TEX. CIV. PRAC. & REM. CODE §27.010(a) does not exempt this legal action from a

motion to dismiss brought pursuant to TEX. CIV. PRAC. & REM. CODE §27.003.

         First, this suit is not an “enforcement action” at all as the TEC has so admitted. RR 3:49;

RR 3:58.

         Second, the TEC admits in its letter brief it did not vote to initiate a civil “enforcement

action” as required by TEX. GOV’T CODE § 571.171. Nor did the TEC vote to initiate an

investigation. TEX. GOV’T CODE § 571.124. This court has jurisdiction only because of a de novo

review under TEX. GOV’T CODE § 571.133(a) and not because the TEC voted to initiate an

enforcement action.

         Finally, the matter is not brought in the name of the state by the Attorney General.




akerman.com
43724001;1
         II.    The case may not proceed to trial on a notice of appeal and a general denial

as the only live pleadings.

         The position of the TEC in its letter brief that this case could go to trial with only a notice

of appeal and a general denial in not legally supportable. Indisputably, the TEC has the burden of

proof in this case. TEX. GOV’T CODE § 571.133(d) very clearly states, in part:

                “(d)…. The reviewing court shall try all issues of fact and law in
                the manner applicable to the other civil suits in this state but may
                not admit in evidence the fact of prior action by the commission or
                the nature of that action, except to the limited extent necessary to
                show compliance with statutory provisions that vest jurisdiction in
                the court. A party is entitled, on demand, to a jury determination of
                any issue of fact on which a jury determination is available in other
                civil suites in their state.”

         TEX.GOV’T CODE § 571.133(d), therefore, requires, The Texas Rules of Civil Procedure

and Evidence apply to this case. That a case may go to trial with live pleadings of only a notice

of appeal by a respondent and a general denial by the TEC and be submitted to a jury is

specifically contradicted by Rules 45, 47, 68, 78, 91, 265, 266 and 269 of the Texas Rules of Civil

Procedure, at a minimum. Further, a notice of appeal and a general denial as the only live

pleadings at trial would not give the trial court any basis to admit any evidence, as no evidence

would have any tendency to make a fact plead more or less probable where there are no operative

facts plead. TEX. R. CIV. EVID §401 AND 402.

                                                               Respectfully submitted,


                                                               AKERMAN LLP

                                                               By: /s/Joseph M. Nixon
                                                               Joseph M. Nixon
                                                               joe.nixon@akerman.com
                                                               State Bar No. 15244800
                                                               1300 Post Oak Blvd. Suite 2500
                                                               Houston, Texas 77056
                                                               Tel: (713) 623-0887
                                                               Fax: (713) 9630-1527


43724001;1
                                                         James E. “Trey” Trainor, III
                                                         trey.trainor@akerman.com
                                                         700 Lavaca Street, Suite 1400
                                                         Austin, Texas 78701
                                                         Tel: (512) 623-6700
                                                         Fax: (512)623-6701

                                                         COUNSEL FOR APPELLANT
                                                         MICHAEL QUINN SULLIVAN



                                CERTIFICATE OF SERVICE

        I hereby certify that a true and correct cope of the foregoing Response to the Post-
Submission Letter Brief of the Texas Ethics Commission has been electronically filed and served
on all counsel below on January 2, 2018.

Eric J. R. Nichols
enichols@beckredden.com
Amanda Taylor
ataylor@beckredden.com
Amy K. Penn
apenn@beckredden.com
BECK REDDEN, LLP
515 Congress Ave., Suite 1900
Austin, Texas 78701
(512) 708-1000

ATTORNEYS FOR APPELLEE




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