                                                                                    ACCEPTED
                                                                                06-16-00008-CV
                                                                     SIXTH COURT OF APPEALS
                                                                           TEXARKANA, TEXAS
                                                                          6/16/2016 11:18:17 AM
                                                                               DEBBIE AUTREY
                                                                                         CLERK

                     NO. 06-16-00008-CV

             IN THE SIXTH COURT OF APPEALS       FILED IN
                                           6th COURT OF APPEALS
                  AT TEXARKANA, TEXAS        TEXARKANA, TEXAS
                                                      6/16/2016 11:18:17 AM
 JOHN VERNON                                               DEBBIE AUTREY
 HEARNSBERGER,                                                 Clerk
     APPELLANT,

 VS.

 PANOLA COUNTY, TEXAS;
 JACK ELLECT; DAVID JETER
 AND RONALD CLINTON,
     APPELLEES.



 BRIEF OF APPELLEES PANOLA COUNTY, JACK ELLECT, DAVID
               JETER AND RONALD CLINTON




                            Respectfully Submitted,

                            /s/ Stephen R. Marsh
                            STEPHEN R. MARSH
                            Texas Bar No. 13019700
                            DAVID KLOSTERBOER & ASSOCIATES
                            1301 E. Collins Blvd., Suite 490
                            Richardson, Texas 75081
                            Telephone: (214) 570-6300
                            Facsimile: (214) 570-6262
                            Email: smarsh@travelers.com
                            ATTORNEY FOR APPELLEES

ORAL ARGUMENT REQUESTED
                                          TABLE OF CONTENTS

INDEX OF AUTHORITIES ................................................................................... ii

STATEMENT OF THE CASE ................................................................................. 1

ISSUES PRESENTED

         ISSUE NO. 1 RESTATED: The procedural irregularities in this
         case violate the Texas Rules of Civil Procedure and Constitutional
         due process because Appellant received only the notice required by
         the rules of the setting of the motion to dismiss and because the trial
         court heard the matter under the statute authorizing concurrent
         jurisdiction ......................................................................................................2

         ISSUE NO. 2 RESTATED: There were no relevant procedural
         irregularities because no order of transfer was required for the
         Court to hear the matter. The complaints about notice and the
         timing of the transfer have nothing to do with the relevant
         procedural law about which Court can hear and enter orders in
         the case ............................................................................................................2

STATEMENT OF FACTS .......................................................................................3

SUMMARY OF THE ARGUMENT ....................................................................... 6

ARGUMENT ............................................................................................................8

PRAYER .................................................................................................................12

CERTIFICATE OF SERVICE ...............................................................................13

CERTIFICATE OF COMPLIANCE WITH TRAP 9.4(i)(3) ................................14




                                                              i
                                       INDEX OF AUTHORITIES

CASES

City of Corpus Christi, 51 S.W.3d at 262, 264 ......................................................... 9

Faddoul, Glasheen & Valles, P.C. v. Oaxaca, 52 S.W.3d 209, 213
(Tex. App. 2001) .................................................................................................... 12

In re M.A.W., 31 S.W.3d 372, 374 (Tex. App. 2000) ...................................8, 10, 11

In re U.S. Silica Co., 157 S.W.3d 434, 439 (Tex. 2005) .......................................... 8

Mission Consol. Independent School Dist. v. Garcia, 253 S.W.3d 653
(Tex. 2008) ................................................................................................1, 4, 5, 7, 9

Office of Pub. Util. Counsel v. Pub. Util. Comm’n, 185 S.W.3d 555, 576
(Tex. App. 2006) ...................................................................................................... 9

Smith v. Brown, 51 S.W.3d 376, 380 (Tex. App. 2001) ........................................ 11

STATUTES AND PUBLICATIONS

48B Tex. Prac., Tex. Lawyer & Jud. Ethics § 40:81
(2016 ed.) ............................................................................................................... 10

Tex.R.App.P. 33.1 .............................................................. 1, 2, 3, 6, 7, 8, 10, 11, 12

Tex.R.App.P 45 ...............................................................................................3, 6, 11

Tex.R.App.P. 74(d) ...........................................................................1, 3, 6, 8, 11, 12

Texas Tort Claims Act ......................................................................................1, 3, 7

V.T.C.A., Government Code § 74.094 .................................................................5, 7

RULES

TX R PANOLA CTY DIST Rule 1.13 .............................................................5, 6, 7



                                                             ii
                             BRIEF OF APPELLEES

                          STATEMENT OF THE CASE

      After failing to serve timely notice of a claim under the Texas Tort Claims

Act, Appellant filed a suit subject to dismissal under Mission Consol. Independent

School Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008). Appellant sued both the

individuals and the governmental entity in the same suit and both moved to

dismiss, setting the matter after Appellant had the thirty days set by statute to

voluntarily comply.

      Appellant was given the notice required by law of the hearing.

      The hearing on the motion to dismiss was heard by the County Court at Law

under concurrent jurisdiction as authorized by a statute that does not require that

the case be transferred. Appellant, with the advice of counsel, chose not to respond

to the motion or to appear at the hearing and to waive any error. Appellant then

chose not to comply with Tex.R.App.P. 33.1 or Tex.R.App.P. 74(d) in taking his

appeal. In the appeal the Appellant has not challenged the merits of the dismissal.

      Rather, the Appellant complains of the timing of the transfer of the case

between courts (which was not relevant to the jurisdiction or the statute authorizing

the trial court to hear the matter with or without transfer) and that he was given

only the notice required by law instead of additional notice.

      It is uncontested that the trial court entered appropriate relief on the merits.



BRIEF OF APPELLEES                                                              Page - 1
                            ISSUES PRESENTED

ISSUE NO. 1 RESTATED

     The procedural irregularities in this case violate the Texas Rules of
     Civil Procedure and Constitutional due process because Appellant
     received only the notice required by the rules of the setting of the
     motion to dismiss and because the trial court heard the matter under
     the statute authorizing concurrent jurisdiction.

ISSUE NO. 1 REPLY POINT

     There were no relevant procedural irregularities because no order of
     transfer was required for the Court to hear the matter. The complaints
     about notice and the timing of the transfer have nothing to do with the
     relevant procedural law about which Court can hear and enter orders
     in the case.

ISSUE NO. 2 RESTATED

     The Court erred in hearing the Appellee’s motion even though there
     was no requirement under governing law that the matter be transferred
     from the 123rd Judicial District Court to the County Court at Law.

ISSUE NO. 2 REPLY POINT

     The allegations of procedural irregularity are irrelevant because there
     is no showing of harm as the Appellant failed to address the
     underlying merits.

ISSUE NO. 3/ REPLY POINT

     Intentionally not attending the hearing because of alleged procedural
     irregularities, and failing to raise the issues as required by
     Tex.R.App.P. 33.1 before taking an appeal, waives any alleged
     irregularities.




BRIEF OF APPELLEES                                                         Page - 2
ISSUE NO. 4 / CROSS POINT

      Given the Appellant’s failure to comply with both Tex.R.App.P. 33.1
      and Tex.R.App.P. 74(d) and that the Appellant was so clearly put on
      notice of the well-established law before the filing of Appellant’s
      Brief, Tex.R.App.P 45 should be applied to this case and the
      Appellant charged $5.00.00 which should be sufficient to prevent any
      future violations of the rules.

                          STATEMENT OF FACTS

      Appellant was a deputy sheriff.      Appellant embezzled funds.   He also

defrauded a secured creditor. He was indicted for the embezzlement [ROA 14] by

the grand jury [ROA 19]. There were also other matters [e.g. see the Exhibit 4

referred to at ROA 14, ROA 15].

      Appellant had not been given Miranda warnings. Evidence was suppressed

and the case dismissed [ROA 14]. The causes of action that he alleged occurred in

October of 2012.

      Appellant then filed a federal suit alleging an enforceable interest in

employment as a deputy sheriff [cf ROA 19]. A motion for summary judgment

was filed and the Appellant non-suited his federal action before the Court ruled

[ROA 18ff]. Appellant never gave a timely Texas Tort Claims Act notice. [ROA

12-13].

      After dismissing his federal cause of action, he filed suit under the Texas

Tort Claims Act against both the governmental entity and the individuals in the

same litigation in October 2015 [ROA 4].

BRIEF OF APPELLEES                                                        Page - 3
      The Appellees filed a motion to dismiss which gave the Appellant thirty

days to voluntarily dismiss the individual parties. Appellant was put on notice that

if Appellant failed to properly dismiss the appropriate parties within thirty days,

then relief under Mission Consol. Independent School Dist. v. Garcia, 253 S.W.3d

653 (Tex. 2008) would be sought as to all parties under the Act. This was clearly

laid out [ROA 24].

      Appellant’s merits below were [ROA 25]:

      1.     Embezzlement is not a crime.

      2.     He had a property right in his employment as a sheriff’s deputy.

      3.     He had a right to have the Appellees interfere with the independent

             Texas Ranger investigation to keep him from being arrested on a

             grand jury indictment.

      Under the Act, the Appellant’s case in chief below was subject to mandatory

dismissal of the individual parties and to dismissal of the governmental entity due

to immunity. The Act gives thirty days for voluntarily dismiss after the appropriate

motion is filed [ROA 25-30]. Because of the thirty day period, the matter would

not be ripe for being set until that period of time passed.

      Since the Appellant had thirty days to dismiss on his own initiative,

Appellees noted that they would give Appellant thirty days in order to make all

matters ripe in their pleading. When Appellant failed to take advantage of the



BRIEF OF APPELLEES                                                          Page - 4
statutory procedures, the matter was then set for hearing and the Plaintiff was

given notice of the hearing as follows [ROA 47]:

             This is to give you notice that the Motion to Dismiss has been
      set for hearing at 10:00 a.m. on December 15, 2015 before the County
      Court at Law for Panola County. The Panola County Court at Law
      has unlimited jurisdiction (not all county courts at law do).

      That letter does not suggest any transfer. There is nothing to suggest that the

hearing was set well in advance of the notice, though the only requirement of

notice is meeting the statutory time. The other conclusions appear to have been

raised because Appellant’s counsel fails to remember the Mission Consol.

Independent School Dist. v. Garcia factors explained to him earlier.

      Under the local rules both the District Court and the County Court at Law

had authority to hear any matter pending in either Court without a transfer which is

why there was no indication of a transfer. The local rules are clear and state

[emphasis added][Note this is also at ROA 43]:

      1.    A case over which the District Court and the County Court at
            Law have concurrent jurisdiction may be transferred from one
            Court to the other by order of the judge of the Court in which the
            case is pending with the consent of the judge of the Court to
            which it is transferred.

      2.    Pursuant to V.T.C.A., Government Code Section 74.094, the
            District Judge or the County Court at Law Judge may hear
            and determine a matter pending in either Court regardless of
            whether the matter is preliminary or final or whether there is a
            judgment in the matter. Either judge may sign a judgment or
            order in either court regardless of whether the case is
            transferred. The judgment, order or action is valid and binding

BRIEF OF APPELLEES                                                           Page - 5
             as if the case were pending in the Court of the judge who acts on
             the matter.

             TX R PANOLA CTY DIST Rule 1.13

      The Appellant chose not to appear for the hearing [Appellant’s Brief 5] after

his attorney stated that he would be there [ROA 53].

      Because of his willful choice not to appear, and because of the merits, his

claims were dismissed. Following dismissal, Appellant chose not to file any

Tex.R.App.P. 33.1 pleading [cf ROA 35].

      In the Appeal, Appellant has chosen not to contest that the Texas Tort

Claims Act applies to this matter and is dispositive of his case.          Appellant

challenges only the details of the irrelevant transfer of the case from District Court

to County Court-at-Law without addressing the issue of concurrent jurisdiction or

the underlying merits of the case. In addition, Appellant fails to comply with

Tex.R.App.P. 74(d).

      Given the well-established law, the failure to comply with Tex.R.App.P.

74(d) and Tex.R.App.P. 33.1 means that Tex.R.App.P. 45 applies to this matter.

                       SUMMARY OF THE ARGUMENT

      The key factor in the argument is that the matter below was not required to

be transferred between the Courts for either judge to hear the motion to dismiss

and enter a final judgment because of the local rules and the appropriate statute.

Citing, with emphasis added:

BRIEF OF APPELLEES                                                            Page - 6
         Pursuant to V.T.C.A., Government Code Section 74.094, the
         District Judge or the County Court at Law Judge may hear and
         determine a matter pending in either Court regardless of
         whether the matter is preliminary or final or whether there is a
         judgment in the matter. Either judge may sign a judgment or
         order in either court regardless of whether the case is
         transferred. The judgment, order or action is valid and binding as
         if the case were pending in the Court of the judge who acts on the
         matter.

      An order of transfer was never required and the discussion about the transfer

is a red herring. Even if an order of transfer was required, Appellant’s intentional

non-appearance at the hearing waived any error. Appellant’s subsequent failure to

meet the burden of Tex.R.App.P. 33.1 means that had he not waived error by non-

attendance, he waived error by failure to comply with Tex.R.App.P. 33.1.

      Failure to address the merits also waives error. Since the Texas Tort Claims

Act and the Texas Supreme Court’s decision in Mission Consol. Independent

School Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008) clearly dispose of the merits

there is nothing that Appellant could have addressed.

ISSUE NO. 1 RESTATED/REPLY POINT

      There were no relevant procedural irregularities because no order of
      transfer was required for the Court to hear the matter. The complaints
      about the timing of the transfer have nothing to do with the relevant
      procedural law about which Court can hear and enter orders in the
      case with or without a transfer.




BRIEF OF APPELLEES                                                          Page - 7
ARGUMENT

       The law that either Court was empowered to hear any matter without an

order of transfer was clearly set out in the Response to the Motion for Extension of

Time. Rather than respond to the clear language of the statute “Either judge may

sign a judgment or order in either court regardless of whether the case is

transferred” the Appellant instead complains about the timing of the irrelevant

order of transfer without complying with Tex.R.App.P. 74(d). That is probably

because the clear law on point disagrees completely with his argument. Viz.

             The next question is whether Judge Lewis's termination of
       appellant's parental rights was void due to the fact that the case was
       not transferred to his court until after the termination decree was
       signed. Appellant failed to object on the basis that the case had not
       been transferred to County Court at Law No. Five and, therefore, has
       not preserved this issue for our review. Tex.R.App.P. 33.1. However
       even if appellant had objected on this basis we conclude that Judge
       Lewis had the authority to terminate appellant's parental rights even
       though the case had not been transferred to him.
       In re M.A.W., 31 S.W.3d 372, 374 (Tex. App. 2000).

       See also other cases such as In re U.S. Silica Co., 157 S.W.3d 434, 439 (Tex.

2005), etc. The timing of the transfer is irrelevant and there were no procedural

irregularities.




BRIEF OF APPELLEES                                                          Page - 8
ISSUE NO. 2 RESTATED/REPLY POINT

      The allegations of procedural irregularity are irrelevant because there
      is no showing of harm as the Appellant failed to address the
      underlying merits.

ARGUMENT

      Under the Mission Consol. Independent School Dist. v. Garcia, 253 S.W.3d

653 (Tex. 2008) standards, the Appellant has no defense to the dismissal of the

individual parties and no defense to the immunity of the governmental entity.

Appellant can show no harm and can show nothing that the Court below should

have done differently on the merits.

      This is fatal to the appeal, even if there were irregularities since the rule is

that a party must show that there are merits to their case. That is clear law.

             Procedural irregularities do not warrant reversal absent a
      showing of harm. City of Corpus Christi, 51 S.W.3d at 262, 264
      (Commission's “failure to follow procedural requirements of statutes
      or rules is not reversible error without a showing of harm”).

      Office of Pub. Util. Counsel v. Pub. Util. Comm'n, 185 S.W.3d 555, 576
      (Tex. App. 2006).

      Appellant cannot meet that burden because the well-established law is that if

a party sues individuals and a governmental entity in the same suit, on motion the

individuals must be dismissed within thirty days. Further, the law is clear that as to

all causes of action alleged, the governmental entity has immunity. There are no

underlying merits in Appellant’s favor.



BRIEF OF APPELLEES                                                               Page - 9
ISSUE NO. 3 / REPLY POINT

     Intentionally not attending the hearing because of alleged procedural
     irregularities, and failing to raise the issues as required by
     Tex.R.App.P. 33.1 before taking an appeal, waives any alleged
     irregularities.

ARGUMENT

     Appellant twice waived all error. As to Tex.R.App.P. 33.1. the Rule has

approximately 21,693 citing references showing in Westlaw.          They are well

summarized as follows:

            If, however, the complaint is that the judge acted in a case
     without statutory or procedural authority, the alleged error is not void,
     but voidable, and must therefore be raised by objection or complaint
     to be preserved for appellate review
     48B Tex. Prac., Tex. Lawyer & Jud. Ethics § 40:81 (2016 ed.)

          Timing of an objection to a judge's lack of procedural
     compliance is critical to the success of the objection, in that a party
     may not raise that issue for the first time on appeal:
     48B Tex. Prac., Tex. Lawyer & Jud. Ethics § 40:81 (2016 ed.)

           … procedural irregularities that must be raised at trial to
     preserve appellate relief include the absence of an order assigning a
     judge at the time of the trial

     48B Tex. Prac., Tex. Lawyer & Jud. Ethics § 40:81 (2016 ed.)

     The lead case for this point states as follows:

           The next question is whether Judge Lewis's termination of
     appellant's parental rights was void due to the fact that the case was
     not transferred to his court until after the termination decree was
     signed. Appellant failed to object on the basis that the case had not
     been transferred to County Court at Law No. Five and, therefore, has

BRIEF OF APPELLEES                                                          Page - 10
      not preserved this issue for our review. Tex.R.App.P. 33.1. However
      even if appellant had objected on this basis we conclude that Judge
      Lewis had the authority to terminate appellant's parental rights even
      though the case had not been transferred to him.

      In re M.A.W., 31 S.W.3d 372, 374 (Tex. App. 2000)

      A party must properly object in order to preserve the issue for an appeal.

Deciding not to attend the hearing and to wait until an appeal to raise any error is a

decision to waive all error.

      Even if the Appellant had objected and then met the requirements of

Tex.R.App.P. 33.1, the objections would have been without merit. That explains

why the Appellant did not raise an objection in the Court below and why the

Appellant has failed to address the specific law and statute that apply in the appeal

but instead has focused on the provisions that do not apply and avoided any law

that discusses what the provisions mean.

ISSUE NO. 4 – CROSS ISSUE

      Given the Appellant’s failure to comply with both Tex.R.App.P. 33.1
      and Tex.R.App.P. 74(d) and that the Appellant was so clearly put on
      notice of the well-established law before the filing of Appellant’s
      Brief, Tex.R.App.P 45 should be applied to this case and the
      Appellant charged $5.00.00 which should be sufficient to prevent any
      future violations of the rules.

ARGUMENT

      The Court is authorized to award a prevailing party “just damages” if the

Court determines that an “appeal is frivolous” Smith v. Brown, 51 S.W.3d 376, 380



BRIEF OF APPELLEES                                                           Page - 11
(Tex. App. 2001).      Elements that go to an appeal being frivolous include “the

unexplained failure to file a motion for new trial when it is required” Faddoul,

Glasheen & Valles, P.C. v. Oaxaca, 52 S.W.3d 209, 213 (Tex. App. 2001) (i.e. the

failure to comply with Tex.R.App.P. 33.1, above) and a brief that fails to raise

arguable points of error (failure to comply with Tex.R.App.P. 74(d)).

       A sanction of $5.00.00 (five dollars) under the rules is appropriate and

sufficient.

                                        NOTE

       Appellant’s prayer addresses a temporary injunction that does not appear to

be relevant to this matter.

                                      PRAYER

       Appellees request the Court to affirm the judgment of the trial court. In the

alternative, the Court should render the matter in Appellees favor on the merits and

enter such other orders as are just and right.




BRIEF OF APPELLEES                                                         Page - 12
                                          Respectfully Submitted,
                                          DAVID KLOSTERBOER &
                                          ASSOCIATES

                                          /s/ Stephen R. Marsh
                                          STEPHEN R. MARSH
                                          Texas Bar No. 13019700
                                          1301 E. Collins Blvd., Suite 490
                                          Richardson, TX 75081
                                          Direct Telephone: 214-570-6292
                                          Telephone: 214-570-6300
                                          Facsimile: 214-570-6262
                                          Email: smarsh@travelers.com
                                          ATTORNEYS FOR APPELLEES


                          CERTIFICATE OF SERVICE

       This is to certify that on the 16th day of June, 2016 a true and correct copy of
the foregoing document was delivered in accordance with Rule 21a of the Texas
rules of Civil Procedure via First Class U.S. Mail to the counsel of record listed or
by electronic delivery for those counsel available through the e-filing system.

                                          /s/ Stephen R. Marsh
                                          STEPHEN R. MARSH

          CERTIFICATE OF COMPLIANCE WITH TRAP 9.4(i)(3)

       This document complies with the typeface requirements of Tex.R.App.P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
4,500 words or fewer, which includes any parts exempted by Tex. R. App. P.
9.4(i)(1).
                                      Stephen R. Marsh
                                      STEPHEN R. MARSH




BRIEF OF APPELLEES                                                            Page - 13
