                                                                             ACCEPTED
                                                                        04-14-00551-cv
                                                             FOURTH COURT OF APPEALS
                                                                  SAN ANTONIO, TEXAS
                                                                  2/19/2015 10:20:05 PM
                                                                          KEITH HOTTLE
                                                                                 CLERK


                       NO. 04-14-00551-CV
                                                      FILED IN
                IN THE COURT OF APPEALS    4th COURT OF APPEALS
                        FOR THE             SAN ANTONIO, TEXAS
                                           2/19/2015 10:20:05 PM
            FOURTH JUDICIAL DISTRICT OF TEXAS
                                               KEITH E. HOTTLE
                   SAN ANTONIO, TEXAS               Clerk

PABLO SOLIZ                    §        APPELLANT
                               §
V.                             §
                               §
STATE OF TEXAS                 §        APPELLEE


        APPEAL FROM 79th JUDICIAL DISTRICT COURT
                 BROOKS COUNTY, TEXAS
             TRIAL COURT NO. 14-02-16542-CV



________________________________________________________________


         FIRST SUPPLEMENTED BRIEF OF APPELLANT


                                        Rick Soliz
                                        Attorney at Law
                                        Texas Bar Number 00785013
                                        P.O. Box 4051
                                        Houston, Texas 77210
                                        713-228-1900
                                        Counsel Pro Bono



                ORAL ARGUMENT REQUESTED




                               1
             STATEMENT REGARDING ORAL ARGUMENT



      The appellant requests oral argument because of the importance of the

issue presented concerning whether a Texas Constable may be removed from

office without government financial assistance for required training, without a

training facility available for required training, and without appellee meeting its

burden of proof in summary judgment evidence.




                                         2
                         TABLE OF AUTHORITIES



City of Houston v. Clear Crk Basin Auth., 589 S.W.2nd 671 (Tex. 1979) 15

Mathews v. Eldridge, 424 U.S. 319, 344 (1976)                         15

Marchant v. Pennsylvania R.R., 153 U.S. 380, 386 (1894).              16

Fuentes v. Shevin, 407 U.S. 67, 81 (1972)                             16

American Pertrofina. Inc. v. Allen, 887 S.W.2nd 829 (Tex. 1994)       17

Brownlee v. Brownlee, 665 S.W. 2nd 111 (Tex. 1984)                    17




                           INTERESTED PARTIES



Appellant - Constable Pablo Soliz

Appellee Texas Attorney General’s Office – Attorney Kent Richardson

Brooks County Judge Raul Ramirez (until December 31, 2014)

Presiding and Visiting Judge of the 79th Judicial District Court




                                        3
                            TABLE OF CONTENTS




Statement Regarding Oral Argument               2

Table of Authorities                            3

Interested Parties                              3

Statement of the Case                           5

Appellant’s Points of Error                     6

Statement of Facts                              6

Argument                                        12

Conclusion                                      18

Certificate of Compliance                       19

Certificate of Service                          19




                                    4
TO THE HONORABLE JUSTICES OF SAID COURT:

      Now comes, Pablo Soliz Jr., Texas Constable and Appellant in the above

entitled and numbered cause, by and through his pro bono attorney of record,

Rick Soliz, and respectfully requests that this court reverse the Order of

Removal dated August 1, 2014, of Visiting Judge David Chew, and temporarily

or permanently reinstate appellant to his properly held position as elected

Constable of his precinct in Brooks County Texas.



                        STATEMENT OF THE CASE


      A hearing was held in the 79th Judicial District Court whereby the State of

Texas moved for partial summary judgment based on two grounds. Appellant

defended against the removal action and after arguments based on pleadings

previously filed, the court granted partial summary judgment solely on the

allegation that appellant did not receive training and licensure within 270 days of

taking the office of constable, after being duly elected. Appellant timely filed

notice of appeal and a motion for new trial, which was denied.




                                         5
                     APPELLANT’S POINTS OF ERROR


 I.   The trial court erred by refusing to recognize the due process violations of
      denying appellant his right to a jury trial, requiring Appellant to receive
      academy training as an unfunded government mandate, and requiring
      Appellant to attend academy training even though the academy
      historically servicing Brooks County openly and illegally discriminated
      against Appellant by refusing to accept his application for retraining and
      relicensure based on his age.


II.   The trial court erred by refusing to recognize the fact issues raised by
      Appellant regarding his defenses, of not being provided with funds for
      training and not being admitted to training based on age, sufficient to
      materially dispute movant’s summary judgment evidence.




                             STATEMENT OF FACTS


      The Texas constable is provided for in the Texas Constitution of 1876

(Article 5, Section 18). Elected officials in Texas are thus constitutionally

protected and removal proceedings should be carefully scrutinized. Over the

decades, most removal proceedings have had some relation to town politics.

This case is no different.


      Pablo Soliz Jr. is the appellant in this matter. Mr. Soliz is the oldest of

eight children and was raised in Falfurrias, Texas (the Brooks County Seat). He

graduated from a nearby university in 1984 with a degree in political science.

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Mr. Soliz is an honorably discharged veteran with 5 children. He has held

certified law enforcement positions in several decades for multiple agencies in

two counties and is probably the most experienced peace officer in Brooks

County. He certainly is the most educated. There does not seem to be any other

local peace officer in the last six decades that has served Brooks County while

maintaining a college degree. In this county, there have always been several

peace officers at any particular time, elected and otherwise, over the last six

decades, that would be considered illiterate by any standardized gauge or exam.

It makes many wonder how they obtained and maintain their peace officer

licenses (with the required testing and training) and why Mr. Soliz, the most

educated, the most qualified, and the most experienced elected official in Brooks

County, was singled out by the now outgoing county judge (lost recent election)

for proof or licensure and training. And with so many new and more difficult

qualification standards in Texas, one must wonder how all these other officials

meet and maintain requirements. The answer is they do not, but who wants a

community with no law enforcement available?


      Brooks County was on the front page of the Corpus Christi Caller Times

newspaper this summer. The piece indicated Brooks County as one of the

poorest counties in the state. CR 56 The newspaper reported that peace officers



                                       7
are leaving to nearby counties to work for higher pay and benefits. Brooks

County recently administered pay cuts, layoffs and removal of benefits. Officers

are in short supply yet the most qualified officer must now defend himself

against a removal action. What Brooks County voters and taxpayers were asked

about this or wanted this? Appellant’s constable precinct is the largest and

encompasses the far reaches of Southern Brooks County where dozens of

immigrants have perished lately in the heat and sand and tons of drugs are

transported yearly. This Constable is needed to help in that regard and regularly

patrols those rural roads. He is familiar with the area and patrolled with his

deputy (when he had one) prior to huge county budget cuts because of the

incompetency of some including the outgoing county judge. Appellant’s salary

as constable is less than $800.00 per month and is his sole source of income

other than minor benefits. He still has a middle school aged student at home.

The State of Texas recently took his business and method of making a living

without compensation. The welding shop (he is a welder by trade) was illegally

taken without a single cent of compensation for the construction of Interstate 69

and now the state seeks to take away his last job as constable and his final

source of income. CR 56


      These removal proceedings were initiated with a complaint by a county



                                       8
judge that is a political adversary of this constable. This same judge, who lost

the March primary election and was not selected for the runoff either, is

responsible for the recent demise of Brooks County.             He is also being

investigated for receiving a personal, yearly $15,000.00 state supplement for

submitting affidavits about the number of hours (or lack thereof) he spends in

the courtroom. Appellant would ask that this judge’s affidavit in the previous

proceedings be scrutinized thoroughly and discounted accordingly.


      This court is here reminded that the Appellant has also suffered health

issues, documented in the record below, with hospitalization and therapy for

months. Such occurred after the petition for removal was filed.


      Reading the state’s petition, one would think I was representing some

lawless gangster. The truth of the matter is that Brooks County and surrounding

Counties have some of the most corrupt law enforcement anywhere. Recent

federal prosecutions attest to that. But there is also crooked state and federal law

enforcement as well in the area. And it is no secret appellant cannot be bought

or compromised, so efforts to rid the area of him have become common place. It

is no coincidence this case was heard by a visiting judge either. The only

professional in every way associated with the investigation or prosecution of this




                                         9
case is actually Kent Richardson, the assistant attorney general, who of course is

not from the Brooks County area.

      This is an effort by uneducated, incompetent, ill-trained, or self-

aggrandizing folks to keep only like individuals in control of the Brooks County

area. The most educated, experienced, truthful and professional person in

Brooks County law enforcement is being singled out here by the local

establishment.


      Words can be cheap so appellant will provide examples. Just since the

removal of appellant by the lower court recently, this officer of the court has

learned appellant’s constable truck has been stolen by an individual in law

enforcement and disguised as a work truck. Another constable shakes down the

dozen game rooms in the city of Falfurrias on a regular basis and pockets the

money. The county judge refuses to try to remove a deputy constable who does

not have proper training or licensure and who was not prosecuted, because of the

interference of a Texas Ranger, for sexual assault of a minor. And there is more,

but is there any use of continuing? Does anyone who can act really care – other

than appellant?


      Along the same lines, information in the record and proceedings below

contains information about a felony conviction / non conviction. While it is true

                                        10
that across the country police are seemingly protected and not prosecuted after

they murder unarmed citizens, such is not the case in Brooks County. Appellant

evidently did not have the right of lawful self-defense from a knife wielding,

drugged up hoodlum. Appellant was persecuted instead because of his

investigation of a murder, of a child molester in his precinct, which others

wanted covered up. And what a coincidence that the sheriff who investigated

appellant was run out of town after losing the next election, one prosecutor was

convicted of a felony and sent to jail, the other prosecutor is the current district

judge, and the previous district judge was prosecuted, convicted and removed

from the bench for life. This is typical of what happens to those that illegally

affect appellant since their true colors are eventually exposed. But by then the

damage has occurred to appellant. Such is a regular occurrence and appellant

has a hand in cleaning up the place time and time again. Another example is

appellant’s help purging a crooked DPS Trooper from the area through the

trooper’s recent firing (but of course no prosecution). And of course not so

much as a thank you since it was a bother to DPS to purge one of their own.


      And today, with appellant as a concerned citizen in the area even without

his official capacity, everyone can be sure law violating law enforcement in the

Brooks County area will be hearing from him again soon.



                                         11
                     ARGUMENT AND AUTHORITIES


                           POINT OF ERROR ONE

      The trial court erred by refusing to recognize the due process violations of

denying appellant his right to a jury trial, RR 34 CR 2, 27, 38, 66, 87, requiring

Appellant to receive academy training as an unfunded government mandate, RR

20-23, and requiring Appellant to attend academy training even though the

academy historically servicing Brooks County openly and illegally

discriminated against Appellant by refusing to accept his application for

retraining and relicensure based on his age. RR 21-22

      Appellant was not requested by the Brooks County commissioner’s court,

as the court order implies, to produce evidence of training or licensure. CR 3

Appellant was requested to do such by the county judge Raul Ramirez. RR20,

CR 1 Appellant has been a Constable or a licensed peace officer with other

titles, on and off, for decades, both as a hired and as an elected official. RR 20

The laws and regulations regarding training and therefor licensure have changed

in the recent past. Since current TCOLE (Texas licensing agency) rules are

wholly inadequate regarding grandfathering provisions for previously licensed

and certified officers, appellant sought his own training and did receive days of




                                        12
training in Huntsville recently for several days at the Criminal Justice College.

RR20, 23

      Current TCOLE requirements regarding grandfathering provisions work

for only those who are at an abnormally old age for law enforcement. Probably

to ensure there are no applicants being grandfathered. RR 20


      To summarize, although Brooks County regularly provided assistance to

Brooks County law enforcement to attend their training academy in Corpus

Christi, county judge Raul Ramirez specifically denied funds to appellant to

attend the training academy. RR 22 The past procedure for law enforcement

was simply to ask the judge and the funding was forthcoming. RR 21

Notwithstanding this denial of funds, appellant made additional efforts to enroll

in the training academy and personally met with the head of the training

academy that is part of a Corpus Christi college. This person refused to allow

Constable Soliz to submit an application or enroll. RR 21 The reason given was

that appellant was too old and could not pass the physical part of the training

program. RR 21 Appellant objected and complained in person to the college

president who assured Appellant something would be done. Nothing was done.

During the conversation with the head of the training academy, it seemed to

appellant that the Brooks County judge had spoken to the head in advance.


                                        13
Additionally, the academy head mentioned that the academy illegally could not

accommodate Appellant’s minor medical need (currently a disabled military

veteran) of getting up at least once per hour to walk a few steps to prevent back

problems form sitting too long.


      Appellant made multiple well documented efforts to get funding and enter

the training facility encompassing Brooks County. Mr. Soliz was illegally

denied admission because of age and disability discrimination under federal and

state law. Mr. Soliz met face to face with the head of the facility and was

basically ridiculed and denied even the application process. RR 21 Other

efforts proved fruitless as well for various reasons, mostly lack of funding,

including at other facilities that Constable Soliz should not have even had to

inquire about because the Brooks County area has its own facility in Corpus

Christi. RR 22 The laws do not seem to contemplate this situation but justice

dictates that common sense be applied by all.


      Constable Soliz cannot be held accountable under new TCOLE rules if he

has no control over the persons deciding who enters, by providing funding for

only whom they choose and select entry for training and licensure to only those

they choose. Where is an independent, elected, and constitutionally protected

constable supposed to turn?


                                        14
      Specifically, due process requires a jury trial when requested. Appellant

requested a jury trial. CR 66 Defendant has been denied his constitutional right

to a jury trial. Defendant has been denied due process of law. RR 34 A motion

for summary judgment should not deprive litigants of their right to a trial by jury

or to try a case by affidavit. City of Houston v. Clear Creek Basin Auth., 589

S.W.2nd 671 (Tex. 1979). Appellant states that with so many facts and issues in

this matter, it is not possible to get a fair decision without a trial, something the

government wants to ensure never happens. Why would they want appellant to

be judged by a jury of his peers instead of a solitary judge who works for the

government? Due process rules are shaped by the risk of error inherent in the

truth-finding process as applied to the generality of cases. Mathews v.

Eldridge, 424 U.S. 319, 344 (1976).

      Due process requires this mandatory process to be fair and evenly applied,

and not only for the affluent or for those who county officials choose to

arbitrarily fund. There is what has become an unfunded government mandate in

this case. RR 20 There are no sufficient safeguards to ensure the less affluent,

indigent, as appellant is, or for those otherwise financially incapable of

complying. The mandate should consider expenses of transportation, food,




                                          15
lodging and/or tuition to enroll and attend the required training. In the case at

hand, appellant was denied any financial procurement to comply. RR 22

      Due process requires that the procedures by which laws are applied must

be evenhanded, so that individuals are not subjected to the arbitrary exercise of

government power. Marchant v. Pennsylvania R.R., 153 U.S. 380, 386

(1894).


      Due process also requires that there be a process that is not impossible to

navigate. Here, appellant had no control over an illegal training school

admissions policy that discriminated against him because of a disability, or

because a policy (complained about in a letter, CR 34,37, from appellant to the

Attorney General’s office that appellee has submitted as evidence in this case)

that illegally discriminated against him based on age. RR 21, CR 68-70, 79-80


      Thus, the required elements of due process are those that "minimize

substantively unfair or mistaken deprivations" by enabling persons to contest the

basis upon which a State proposes to deprive them of protected interests.

Fuentes v. Shevin, 407 U.S. 67, 81 (1972).




                                        16
                            POINT OF ERROR TWO

      The trial court erred by refusing to recognize the fact issues raised by

Appellant regarding his defenses, of not being provided with funds for training

and not being admitted to training based on age, sufficient to materially dispute

movant’s summary judgment evidence. RR 22

      Defendant, as the nonmovant, chooses his own defense and is not required

to prove his defense of not being allowed to enroll in the academy and not being

provided with money to obtain training and licensure, in response to a motion

for summary judgment, by a preponderance of the evidence or as a matter of

law. But the mere raising of a fact issue is enough to defeat the summary

judgment, American Pertrofina. Inc. v. Allen, 887 S.W.2nd 829 (Tex. 1994);

Brownlee v. Brownlee, 665 S.W. 2nd 111 (Tex. 1984). In the case at hand,

appellant and appellee (in their evidence submitted of appellant’s complaint

letter to the attorney general’s office prior to the 270 days) both did in fact raise

a fact issue regarding appellant’s defense sufficient to materially dispute

movant’s summary judgment evidence. CR 34-37

      Appellant points to the mentioned evidence regarding appellant’s defense

that the training academy director refused to allow him to apply for admission

based on age and refused to accommodate a disability. RR 21 And that the



                                         17
Brooks County Judge (appellee’s affiant in the motion for partial summary

judgment) refused to provide funding for appellant to attend mandatory training

that is the subject of this court’s judgment.       RR 22     Such funding was

commonplace for Brooks County officials attending mandatory training. And

the movant representing the Texas attorney general’s office presented evidence

as well that defendant wrote to the attorney general complaining of this, prior to

the 270 day deadline to receive training for licensure (and this may be the best

evidence to review). Of note is the fact that appellant had already been through

this same academy years earlier and had obtained his license after such

enrollment and completion of academy training.


                          CONCLUSION AND PRAYER


      Wherefore, the appellant prays that this court reverse the Order of

Removal dated August 1, 2014 in the 79th Judicial District Court and allow the

people to decide the fact issues in this matter.




                         CERTIFICATE OF SERVICE


      This is to certify that a true and correct copy of the attached and foregoing

document will be electronically served on opposing counsel and the Attorney


                                         18
General’s Office.




                    CERTIFICATE OF COMPLIANCE

      The undersigned does hereby certify the word count in the body of this

brief to be well under the maximum limit and is about 3,200 characters.




                                            Respectfully submitted,

                                            /S/ Rick Soliz
                                            Rick Soliz
                                            T.B.N. 00785013
                                            P.O. Box 4051
                                            Houston, Texas 77210
                                            713-228-1900
                                            Pro Bono Attorney for Appellant




                                      19
