                                                                                                                  ACCEPTED
                                                                                                              03-14-00737-CV
                                                                                                                      7565097
                                                                                                   THIRD COURT OF APPEALS
                                                                                                              AUSTIN, TEXAS
                                                                                                        10/27/2015 3:57:33 PM
                                                                                                            JEFFREY D. KYLE
                                                                                                                       CLERK
                                        No. 03-14-00737-CV

                               In the Third Court of Appeals       FILED IN
                                                            3rd COURT OF APPEALS
                                      Austin, Texas              AUSTIN, TEXAS

                        ____________________________________10/27/2015 3:57:33 PM
                                                                JEFFREY D. KYLE
                                                                     Clerk
                           CHASE CARMEN HUNTER
                                                Appellant,
                                      v.
                            DAVID MATTAX 1 AND
                 AND THE TEXAS DEPARTMENT OF INSURANCE
                                                Appellees.
                 ____________________________________________
                    On Appeal from the 250th Judicial District Court
                            Cause No. D-1-GN-13-001957
                                 Travis County, Texas
                  ____________________________________________
               APPELLEES’ RESPONSE TO APPELLANT’S
       EMERGENCY MOTION FOR CLARIFICATION OF THE RECORD
            ____________________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

        Appellees David Mattax, and the Texas Department of Insurance,

(“Appellees”), hereby file their response to Appellant’s Emergency Motion for

Clarification of the Record.




1
   The underlying case was originally styled Chase Carmen Hunter v. Eleanor Kitzman and the Texas
Department of Insurance. Kitzman was sued only in her official capacity as the Commissioner of Insurance.
Kitzman was succeeded by Julia Rathgeber, and Appellant amended the case style to add Rathgeber’s name
(again only in her official capacity), but retained Kitzman’s name “in her official capacity.” Rathgeber has
since been succeeded by David Mattax, who as the current Commissioner of Insurance is the only person
with any official capacity as Commissioner of Insurance, is the proper appellee in this appeal along with
the Texas Department of Insurance. Tex. R. App. P. 7.2(a).
                                           I.

       In her Emergency Motion for Clarification of the Record, Appellant states

that: (1) there is no notice in the record of any court setting dated in June 2014; and

(2) the record does not contain a copy of any dismissal order dated August 25, 2015.

Appellant asks this Court to give her the relief requested in this appeal and the relief

requested in her petition for writ of mandamus, cause number 03-15-00218-CV.

                                          II.

       Appellant is partially correct about the state of the record. The record does not

contain a copy of the court setting dated in June 2014. Appellees were aware of the

setting because a notice of such setting was mailed to Appellees. Appellees attached

a copy of such notice as Appendix C to its brief and requested the District Clerk to

send a supplemental record with such notice to this Court. See Appellee’s Brief,

Appendix C, and p.5, n.7. No such supplemental record has been filed, leading

Appellees to assume that the District Clerk did not retain a copy of the sent notice in

the file.

       Appellee is incorrect in her assertion that no dismissal order dated

August 25, 2014 appears in the record. The dismissal order appears in the Clerk’s

Record at CR224–32. The underlying case is listed on the ninth page (p.231). A copy

was attached to Appellee’s Brief as Exhibit A. See Appellee’s Brief, Appendix A.




                                           2
Thus the record before this Court includes a copy of the dismissal order dated

August 25, 2014. See CR224–32.

      Thus the only document missing from the record is the notice of setting mailed

in June 2014. This document is not material to the resolution of this appeal and is

not relied upon by either party for any substantive arguments. It was mentioned by

Appellees in its recitation of the facts only and not referenced by Appellant at all.

                                          III.

      It is unclear what relief Appellant is seeking in her motion. She asks this Court

to grant the relief requested in her appeal in this cause and also the relief requested

in the disposed-of cause number 03-15-00218-CV.

      To the extent that Appellant is requesting that she prevail on the merits of her

appeal based on the failure of the record to contain a copy of the June 2014 notice,

Appellees would note that the record contains all the contents required by Texas

Rule of Appellate Procedure 34.5(a) (which does not include copies of any notices

or any mailings), and that Appellant did not file any written designation with the trial

court specifying the inclusion of such notice in the record, or indeed of any additional

items as would be required by Texas Rule of Appellate Procedure 34.5(b). No

designation under Rule 34.5(b) has been made by any party to this case. Thus, the

record is complete under the Rules.




                                           3
      To the extent that Appellant is requesting that she prevail on the merits of her

appeal based on the failure of the record to contain the August 25, 2014 order of

dismissal, Appellant is factually incorrect as that document is in the record at

CR224–32.

      To the extent that Appellant is requesting that this Court enter mandamus

relief against the District Clerk requested in 03-15-00218-CV, a motion is not the

appropriate vehicle for mandamus relief. Moreover, as noted, a supplemental record

including the two items mentioned in the motion is unnecessary for the resolution of

this appeal as the June 2014 notice is not material and the August 25, 2014 order

already appears in this Court’s record.

                                          III.

      Accordingly, Appellees respectfully request that this Court deny Appellant’s

Emergency Motion for Clarification of the Record.

                                Respectfully submitted,

                                KEN PAXTON
                                Attorney General of Texas

                                CHARLES E. ROY
                                First Assistant Attorney General

                                JAMES E. DAVIS
                                Deputy Attorney General for Civil Litigation

                                LESLI G. GINN
                                Division Chief
                                Financial Litigation and Charitable Trusts Division


                                           4
                                     /s/ Cynthia A. Morales
                               Cynthia A. Morales
                               Assistant Attorney General
                               Texas State Bar No. 14417420
                               Financial Litigation and Charitable Trusts Division
                               P.O. Box 12548
                               Austin, Texas 78711-2548
                               (512) 475-4470 Phone
                               (512) 477-2348 Fax
                               cynthia.morales@texasattorneygeneral.gov

                               Counsel for Appellees


                         CERTIFICATE OF SERVICE

      I hereby certify that on October 27, 2015, the above and foregoing Appellees’
Response to Appellant’s Emergency Motion for Clarification of the Record was filed
and served via e-service on:

      Chase Carmen Hunter
      340 S. Lemon Avenue #9039
      Walnut, CA 91789
      chase_hunter@yahoo.com
      Fax: (703) 997-5999

                                     /s/ Cynthia A. Morales
                               Cynthia A. Morales
                               Assistant Attorney General




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