                                                                 ACCEPTED
                                                            04-10-00484-CV
                                                 FOURTH COURT OF APPEALS
                                                      SAN ANTONIO, TEXAS
                                                      3/11/2015 10:42:22 AM
       04-14-00551-CV                                         KEITH HOTTLE
                                                                     CLERK

        NO. 04-10-00484-CV

    IN THE COURT OF APPEALS                  FILED IN
                                      4th COURT OF APPEALS
                                       SAN ANTONIO, TEXAS
   FOURTH JUDICIAL DISTRICT          03/11/2015 10:42:22 AM
                                        KEITH E. HOTTLE
      SAN ANTONIO, TEXAS                      Clerk




          PABLO SOLIZ,
            Appellant,

               VS.

      THE STATE OF TEXAS,
             Appellee.


         APPEAL FROM

THE 79TH JUDICIAL DISTRICT COURT

    BROOKS COUNTY, TEXAS


         STATE’S BRIEF


              Kent S. Richardson
              Assistant Attorney General
              P.O. Box 12548
              Austin, Texas 78711-2548
              State Bar No.24003262
              kent.richardson@texasattorneygeneral.gov
              (512) 936-1348 Tel.
              (512) 370-9741 Fax
              Attorney for the State of Texas
                           NAMES OF PARTIES

Appellee:                  State of Texas

Attorneys for the State:   Ken Paxton, Attorney General
      At trial:            Kent S. Richardson, Assistant Attorney General
                           Zindia Thomas, Assistant Attorney General
      On appeal:           Kent S. Richardson
                           Assistant Attorney General
                           P.O. Box 12548
                           Austin, Texas 78711-2548
                           State Bar No.24003262
                           Attorney for the State of Texas

Appellant:                 Pablo Soliz

Attorney:
      At trial:            Rick Soliz
                           P.O. Box 4051
                           Houston, Texas 77210


      On appeal:           Rick Soliz
                           P.O. Box 4051
                           Houston, Texas 77210




                                                                            ii
                                           TABLE OF CONTENTS

NAMES OF PARTIES ............................................................................................... II
TABLE OF CONTENTS ..........................................................................................III
INDEX OF AUTHORITIES .................................................................................... IV
STATEMENT OF THE CASE .................................................................................. 2
STATEMENT OF FACTS ......................................................................................... 3
SUMMARY OF THE ARGUMENT ........................................................................ 4
ARGUMENT................................................................................................................ 5
  STATE’S RESPONSE TO POINT OF ERROR NO. 1 ....................................... 5
   APPELLANT HAS NOT BEEN DENIED DUE PROCESS BY THE ADJUDICATION OF
   THE CASE BY SUMMARY JUDGMENT.
  STATE’S RESPONSE TO POINT OF ERROR NO. 2 ....................................... 6
   THERE ARE NO GENUINE ISSUES OF MATERIAL FACT TO THE SOLE ISSUE OF
   EVIDENCE OF LICENSURE.
CONCLUSION ............................................................................................................ 8
PRAYER ....................................................................................................................... 8
CERTIFICATE OF COMPLIANCE (TRAP 9.4)................................................... 9
CERTIFICATE OF SERVICE ................................................................................ 10




                                                                                                                             iii
                                        INDEX OF AUTHORITIES

RULES AND STATUTES

TEX.CIV.PRAC. & REM.CODE § 66.001 et seq........................................................ 2
TEX.LOC.GOVT.CODE. § 86.0021 ................................................................... 2,3,6,7
Tex. R. App. Proc. 9.4 ................................................................................................... 9
Tex. R. App. Proc. 38.2 ................................................................................................. 2
Tex. R. Civ. Proc. 166a .................................................................................................. 6



CASES

Buck v. Palmer, 381 S.W.3d 525 (Tex. 2012) .............................................................. 7
Gulbenkian v. Penn, 252 S.W.2d 929 (Tex. 1952) ....................................................... 5
Knutson v. Ripson, 354 S.W.2d 575 (Tex. 1962) ......................................................... 5
MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986) ......................................................... 6
Querner Truck Lines, Inc. v. Alta Verde Indus., Inc., 747 S.W.2d 464
    (Tex. App. - San Antonio 1988, no writ) ................................................................. 5
Siegler, Inc. v. Perez, 819 S.W.2d 470 (Tex. 1991) ...................................................... 6
Tribble & Stephens Co. v. Consol Svcs., Inc., 744 S.W.2d 945 (Tex.
    App. - San Antonio 1987, writ denied) .................................................................... 5




                                                                                                                         iv
                              NO. 04-10-00484-CV

                         IN THE COURT OF APPEALS

                                    FOR THE

                         FOURTH JUDICIAL DISTRICT

                            SAN ANTONIO, TEXAS


                                 PABLO SOLIZ,
                                   Appellant,

                                        VS.

                            THE STATE OF TEXAS,
                                   Appellee.


                                 APPEAL FROM

                   THE 79TH JUDICIAL DISTRICT COURT

                          BROOKS COUNTY, TEXAS

                 TRIAL COURT CAUSE NO. 14-02-16542-CV


                                STATE’S BRIEF


TO THE HONORABLE JUSTICE OF THE COURT OF APPEALS:

      COMES NOW the State of Texas, by and through her Assistant Attorney

General, Kent S. Richardson, and files this Brief in Opposition to Appellant’s First



                                                                             Page 1
Supplemental Brief pursuant to TEX.R.APP.PROC. Rule 38.2 and would show the

Court the following:


                               STATEMENT OF THE CASE

       This is a quo warranto case filed pursuant to Chapter 66 of the Civil Practice

and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 66.001 et seq (Vernon

1985). Section 86.0021(b) of the Texas Local Government Code requires elected

constables to provide to the commissioners court evidence the constable has been

issued a permanent peace officer license under Chapter 1701 of the Occupations Code

on or before the 270th day after taking office. Tex. Loc. Gov. Code Ann. §86.0021(b)

(Vernon 2005). Failure to comply with the requirement operates as a forfeiture of

office for which a quo warranto action may be initiated. Id. The State of Texas through

the Attorney General, filed an information in the nature of quo warranto concerning

Appellant Pablo Soliz, who was the elected constable for Precinct Three of Brooks

County1. SCR 3.2 After considering a motion for partial summary judgment, the trial




1
  The state filed a quo warranto action based on three allegations: (1) failure to meet a licensure
deadline for which judgment was granted, (2) that Appellant was a convicted felon and (3) that
Appellant was not a resident of the precinct in which he was elected constable. This appeal deals only
with the first issue for which judgment was granted by through a motion for partial summary
judgment.
2
  “CR” refers to the Clerk’s Record of papers filed in the trial court and followed by the page number.
“SCR” refers to the Supplemental Clerk’s Record of papers filed in the trial court and followed by
the page number. “RR” will refer to the Reporter’s Record and followed by the page number.

                                                                                               Page 2
court granted the motion and rendered judgment removing Appellant from office. CR

81-82 and 97-98, respectively.


                            STATEMENT OF FACTS

      Appellant Pablo Soliz was elected constable for Precinct 3 of Brooks County on

November 6, 2012. SCR 28-32. Appellant took office on January 1, 2013. See Tex.

Govt. Code Ann. 601.003(a) (Vernon 1993). Appellant was required to obtain and

present evidence of a permanent peace officer license to the commissioners court by

the 270th day after taking office. Tex. Loc. Gov. Code Ann. §86.0021(b) (Vernon

2005). Appellant did not present evidence that he had obtained a permanent peace

officer license by the statutory deadline. CR 35; SCR 19. This fact has not been

disputed by Appellant. SCR 34-37; RR 28. The State of Texas filed a motion for

summary judgment based on the undisputed fact that no evidence of licensure had been

presented to the Brooks County Commissioners Court. SCR 8-15. Based upon the

undisputed fact that there was no evidence of licensure presented by Appellant, the

district court granted partial summary judgment. CR 81-82. After disposing of other

grounds for removal, the district court then signed and entered a final judgment of

removal. CR 97-98.




                                                                             Page 3
                        SUMMARY OF THE ARGUMENT

      Appellant has not been denied any rights in this case to a jury trial. Juries are

factfinders as to the elements of a cause of action. In this case, only one factual element

is required to be proven by the state – whether an elected constable has provided

evidence to the commissioners court that he has obtained a permanent peace officer

license by the 270th day after taking office. There is no other question for a jury to

decide. In this case, it has always been undisputed that Appellant had not provided

such evidence of licensure to the commissioners court. In fact, Appellant never

obtained a peace officer license at all during his time as elected constable. Appellant

bases his case and this appeal on reasons why he did not obtain a peace officer license,

which is itself additional admission of the sole element to the state’s case. The

arguments made by Appellant operate as a type of affirmative defense to the violation

of the licensure statute at issue. However, there is no affirmative defense available in

the statute for the failure to provide evidence of licensure as a peace officer.

      There is no genuine issue of material fact in this case. Again, there is no dispute

that Appellant did not present evidence of obtaining a peace officer license by the

statutory deadline. Appellant claims that his reasons for not obtaining the license

operate as a defense to not meeting the deadline. As stated above, these reasons operate

in practice as a type of affirmative defense which is not found in the statute and is not

available to Appellant to defeat this action.

                                                                                    Page 4
                                   ARGUMENT


           STATE’S RESPONSE TO POINT OF ERROR NO. 1
      APPELLANT HAS NOT BEEN DENIED DUE PROCESS BY THE
      ADJUDICATION OF THE CASE BY SUMMARY JUDGMENT.

      The jury functions as the finder of fact. Tribble & Stephens Co. v. Consol.

Services, Inc., 744 S.W.2d 945, 949 (Tex. App. - San Antonio 1987, writ denied).

The jury does not answer questions of law. Knutson v. Ripson, 354 S.W.2d 575, 576

(Tex. 1962).

      This court stated that summary judgment does not violate a party's right to a

trial by jury where there are no material issues of fact. Querner Truck Lines, Inc. v.

Alta Verde Indus., Inc., 747 S.W.2d 464, 469 (Tex. App. – San Antonio 1988, no

writ). The court reasoned that the purpose of summary judgment is to avoid the

“conventional trial of clearly unmeritorious claims or untenable defenses”. Id. The

Supreme Court of Texas held that when courts hear motions for summary judgment

they determine if there are any issues of fact to be tried, and do not weigh the

evidence or determine its credibility. Gulbenkian v. Penn, 252 S.W.2d 929, 931

(Tex. 1952). Therefore summary judgment does not violate the party's right to a trial

by jury. Id.

      In this case, the sole issue that could have been presented to a jury for

determination was whether Appellant had provided evidence of his licensure to the


                                                                               Page 5
commissioners court by the statutory deadline of 270 days after taking office. Tex.

Loc. Gov. Code Ann. §86.0021(b) (Vernon 2005). As the record reflects, there is no

dispute that Appellant had failed to meet the statutory deadline and the implicit

requirement of obtaining a peace officer license. SCR 34-37; RR 28.

      The arguments and facts that Appellant would like to rely upon are those that

operate as a kind of affirmative defense. See Appellant’s First Supp. Br. at 6-11; 12-

14. However, no such defense can be found in the statute. See generally Tex. Loc.

Gov. Code Ann. §86.0021 (Vernon 2005). Because no such defense is available for

a quo warranto action based upon a violation of §86.0021, any such facts would be

irrelevant to a factfinder. Therefore, no violation of due process occurred as a result

of the trial court’s granting of a motion for summary judgment.


           STATE’S RESPONSE TO POINT OF ERROR NO. 2
      THERE ARE NO GENUINE ISSUES OF MATERIAL FACT TO THE
      SOLE ISSUE OF EVIDENCE OF LICENSURE.

      When a plaintiff moves for summary judgment on her cause of action, she is

entitled to summary judgment if she proves all essential elements of her claim as a

matter of law. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). The plaintiff

must show there are no genuine issues of material fact. TEX. R. CIV. P. 166a(c); Lear

Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). A grant of summary




                                                                                Page 6
judgment is reviewed de novo by the appellate court. Buck v. Palmer, 381 S.W.3d

525, 527 (Tex. 2012).

       The state filed a motion for partial summary judgment on the issue of whether

Appellant had failed to meet his duty to provide evidence of obtaining a permanent

peace officer license to the Brooks County Commissioners Court by the 270th day

after taking office.3 SCR 7-34. Tex. Loc. Gov. Code Ann. §86.0021(b) (Vernon

2005). This fact was established by the affidavit of County Judge Raul M. Ramirez

showing that as of the date of that affidavit, and after the 270th day after taking office,

Appellant did not present evidence of his licensure as a peace officer as required.

CR 35; SCR 19. As noted above, there is no dispute that Appellant did not provide

such evidence to the commissioners court. SCR 34-37; RR 28. The failure to meet

the statutory deadline operates as a forfeiture of the office held and removal by quo

warranto proceeding is warranted. Tex. Loc. Gov. Code Ann. §86.0021(b) (Vernon

2005).

       The facts which Appellant argues create an issue of material fact do not

address the simple question whether evidence of his licensure as a peace officer was

presented to the commissioners court as required by the statute. See Appellant’s




3
  The state’s motion for partial summary judgment addressed the allegations of failure to show
evidence of licensure by the statutory deadline and status as a convicted felon making Appellant
ineligible for his office.

                                                                                        Page 7
First Supp. Br. at 17-18. The facts Appellant argues create the fact issue operate

more as an excuse for not obtaining the required license. Id. The facts urged by

Appellant do not create an issue of material fact in determining whether a violation

of the statute occurred. Therefore, the granting of the motion for summary judgment

as to the sole issue of evidence of licensure was proper by the trial court.


                                   CONCLUSION

       For the reasons stated herein, there was no violation of due process in the trial

court’s grant of summary judgment where a jury would have no additional facts to

determine than those which were not in dispute. For the same reason, there was no

genuine issue of material fact as the dispositive facts were not in dispute. Therefore,

disposition of this case by summary judgment was appropriate.


                                      PRAYER

       FOR ALL THESE REASONS, the State respectfully requests that this

Honorable Court overrule Appellant’s points of error and affirm the judgment of the

trial court.

                                        Respectfully submitted,



                                        /s/ Kent S. Richardson
                                        KENT S. RICHARDSON
                                        Assistant Attorney General

                                                                                 Page 8
                                         Criminal Prosecutions Division
                                         State Bar No. 24003262

                                         P. O. Box 12548, Capitol Station
                                         Austin, Texas 78711
                                         (512) 936-1348
                                         (512) 370-9741 (FAX)

                                         ATTORNEY FOR THE STATE


                   CERTIFICATE OF COMPLIANCE WITH
                TEXAS RULE OF APPELLATE PROCEDURE 9.4


        I do hereby certify that this brief does complies with Tex. R. App. Proc. 9.4 in

that it contains 1,302 words, in Microsoft Word 14.0, Times New Roman, 14 point

font.

                                         /s/ Kent S. Richardson
                                         KENT S. RICHARDSON
                                         Assistant Attorney General




                                                                                 Page 9
                          CERTIFICATE OF SERVICE

      I certify that a true copy of the foregoing brief has been e-mail-delivered to:

Pablo Soliz, Appellant
by and through his attorney of record:
Rick Soliz
P.O. Box 4051
Houston, Texas 77210-4051
jrsoliz@att.net


on this the 11th day of March, 2015.

                                         /s/ Kent S. Richardson
                                         KENT S. RICHARDSON
                                         Assistant Attorney General




                                                                                Page 10
