                                                                                   ACCEPTED
                                                                               04-15-00012-CV
                                                                   FOURTH COURT OF APPEALS
                                                                        SAN ANTONIO, TEXAS
                                                                           8/3/2015 1:15:10 PM
                                                                                KEITH HOTTLE
                                                                                        CLERK

                       NO. 04-15-00012-CV

                   THE COURT OF APPEALS            FILED IN
             FOR THE FOURTH DISTRICT OF TEXAS4th COURT OF APPEALS
               SITTING AT SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS
                                                      08/03/15 1:15:10 PM
                                                        KEITH E. HOTTLE
                                                              Clerk

                     JOHN E. RODARTE SR.
                          Appellant,

                               V.

  BEXAR COUNTY, TEXAS AND SHERIFF RALPH LOPEZ, ET AL
                       Appellees

_________________________________________________________________

                     BRIEF OF APPELLEES,
   BEXAR COUNTY, TEXAS AND SHERIFF RALPH LOPEZ, ET AL
_________________________________________________________________

               ORAL ARGUMENT NOT REQUESTED
_________________________________________________________________


                        Clarkson F. Brown
                      State Bar No. 00798082
               Assistant Criminal District Attorney
                          -Civil Division
                     101 W. Nueva, Suite 735
                 San Antonio, Texas 78205-3030
                    Telephone: (210) 335-3918
                    Telecopier: (210) 335-2773
                      Attorney for Appellees
                      IDENTITY OF PARTIES AND COUNSEL

Appellant                                   Appellees
John E. Rodarte Sr.                         Bexar County, Texas And Sheriff
                                            Ralph Lopez, et al



Trial and Appellate Counsel                 Trial and Appellate Counsel
Pro-Se                                      Clarkson F. Brown
T.D.C.J. 1263270                            SBN: 00798082
Clements Unit                               101 W. Nueva, Suite 735
9601 Spur 591                               Assistant Criminal District
Amarillo, Texas 79107                       Attorney—Civil Division
                                            San Antonio, Texas 78205
                                            210-335-3918
                                            cbrown@bexar.org




                                     i
                                              TABLE OF CONTENTS
                                                                                                                    PAGE(S)
	
IDENTITY OF PARTIES AND COUNSEL ................................................................... i 
TABLE OF CONTENTS .................................................................................................. ii 
INDEX OF AUTHORITIES ........................................................................................... iii 
BRIEF OF APPELLEES BEXAR COUNTY, TEXAS AND SHERIFF RALPH
    LOPEZ, ET AL ........................................................................................................ 1 
STATEMENT OF THE CASE ........................................................................................ 1 
ISSUES PRESENTED ...................................................................................................... 1 
STATEMENT OF THE FACTS ...................................................................................... 2 
ARGUMENTS AND AUTHORITIES ............................................................................ 2 
     A.  Appellant has no grounds for a Bill of Review ........................................................ 2 
CONCLUSION .................................................................................................................. 5 
PRAYER FOR RELIEF ................................................................................................... 5 
CERTIFICATE OF SERVICE ........................................................................................ 6 
APPENDIX......................................................................................................................... 7 




                                                                ii
                                             INDEX OF AUTHORITIES

CASES                                                                                                                      PAGE(S)
 
Rodarte v. Bexar County, 2013 Tex. LEXIS 812 (Tex. Sept. 27, 2013)............................. 1
Rodarte v. Bexar County, 2013 Tex. LEXIS 1027 (Tex. Dec. 6, 2013) ............................. 1
Rodarte v. Bexar County, 2013 Tex. App. LEXIS 5576 (Tex. App. San Antonio May 8,
  2013) ................................................................................................................................ 1
Mabon Ltd. v. Afri-Carib Enters., 369 S.W.3d 809, 812 .................................................... 2
Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam) .................................. 2, 3
Orion Enterprises, Inc. v. Pope, 927 S.W.2d 654, 658 (Tex. App.--San Antonio 1996,
  writ ref’d.) ........................................................................................................................ 4
RULES

Section 101.001 et. al. of the Texas Civil Practice and Remedies Code, and the Texas
  Tort Claims Act (“TTCA”) .............................................................................................. 2




                                                                   iii
     BRIEF OF APPELLEES BEXAR COUNTY, TEXAS AND SHERIFF RALPH
                           LOPEZ, ET AL

TO THE HONORABLE FOURTH COURT OF APPEALS:

       Bexar County, Texas and Sheriff Ralph Lopez, et al, appellees and defendants

below, respectfully submits this brief for your consideration.

                                      I.
                             STATEMENT OF THE CASE

       This is an appeal from the denial of a Bill of Review by the Honorable Michael E.

Mery on October 20, 2014. This same trial court case was appealed to this court and

dismissed for lack of jurisdiction on May 8, 2013 in Rodarte v. Bexar County, 2013 Tex.

App. LEXIS 5576 (Tex. App. San Antonio May 8, 2013). That opinion was appealed to

the Texas Supreme Court and petition for review was denied on September 27, 2013 in

case number 13-0388 at Rodarte v. Bexar County, 2013 Tex. LEXIS 812 (Tex. Sept. 27,

2013) with a motion for rehearing denied at Rodarte v. Bexar County, 2013 Tex. LEXIS

1027 (Tex. Dec. 6, 2013).     On July 16, 2015, this Court denied appellees’ Motion to

Dismiss the Appeal.

                                         II.
                                 ISSUES PRESENTED

1.     Is appellant entitled to a Bill of Review for the actions taken by Judge Fred

Shannon when he dismissed appellant’s case on December 5, 2015?

       No. Appellant makes the incorrect assumption that Judge Shannon acted based on

some motion by the defendants and thus he has a due process claim for failure to be

served. Judge Shannon acted on his own, thus plaintiff has no right to a Bill of Review.
                                            -1-
Judge Shannon was within his powers as a trial judge to review the file and reverse

previous rulings and dismiss the case.

                                     III.
                            STATEMENT OF THE FACTS

       Plaintiff filed suit seeking unspecified damages against Bexar County via his

claim against the Sheriff’s Department, the Adult Detention Center and Sheriff Lopez for

negligence under Section 101.001 et. al. of the Texas Civil Practice and Remedies Code,

and the Texas Tort Claims Act (“TTCA”), for injuries he claims he sustained while riding

on a transport bus from the Bexar County Justice Center to the Bexar County jail.

       Plaintiff was an inmate housed at the Bexar County Adult Detention Center.

Plaintiff alleges that on December 1, 2003, he was riding in a county transport bus taking

him from the justice center back to the jail when the bus hit a pothole or curb, which

caused him to fall off his seat and resulted in injury. Plaintiff contends he fell from his

seat because the bench seat was not properly bolted to the floor.

                                    IV.
                         ARGUMENTS AND AUTHORITIES

A.     Appellant has no grounds for a Bill of Review

       "A bill of review is an equitable proceeding, brought by a party seeking to set

aside a prior judgment that is no longer subject to challenge by a motion for a new trial or

direct appeal." Mabon Ltd. v. Afri-Carib Enters., 369 S.W.3d 809, 812 (citing Caldwell v.

Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam)). Ordinarily, a plaintiff must plead

and prove: "(1) a meritorious defense to the underlying cause of action, (2) which the


                                            -2-
plaintiff [was] prevented from making by the fraud, accident or wrongful act of the

opposing party or official mistake, (3) unmixed with any fault or negligence on [its] own

part." Id. (quoting Caldwell, 154 S.W.3d at 96). But "when a bill-of-review plaintiff

claims a due process violation for no service [of process] or notice [of a default

judgment], it is relieved of proving the first two elements" and must only prove that its

own fault or negligence did not contribute to cause the lack of service or notice. Id.

       Therefore, appellant must prove that he failed to receive notice of some document

that resulted in an adverse judgment being taken against him. In this case, he cannot

prove this element.

       Appellee never filed any document asking Judge Shannon to take the actions he

did on the day of trial. Judge Shannon did this sua sponte. On December 5, 2011, the

same day the case was set to begin trial, trial Judge Shannon reviewed and granted

appellee’s no evidence motion for summary judgment because appellant failed to produce

any summary judgment evidence of injury for the court. (CR 29). Appellees were given

a copy of the Order dismissing the case when they appeared in court for the trial.

Appellant admits on page 13 of his brief that he received Judge Shannon’s order

dismissing the case. Thus, his whole argument is based on the false assumption that he

was not served some document and Judge Shannon’s ruling was based on that. This is

incorrect. As reflected in the CR, there was no document filed seeking any such relief

from Judge Shannon. Nor was there a hearing held that appellant was not a part of.

Judge Shannon used his inherent power to review the file and change previous rulings in

                                             -3-
the case and dismissed the matter.

       A trial court has plenary power over, and therefore the jurisdiction and authority to

reconsider, not only its judgment, but also its interlocutory orders until 30 days after the

date a final judgment is signed. Orion Enterprises, Inc. v. Pope, 927 S.W.2d 654, 658

(Tex. App.--San Antonio 1996, writ ref’d.).         In Orion, relators, a corporation, its

employee and another corporation, sought a writ of mandamus ordering respondent trial

court judge to exercise his plenary power and jurisdiction to reconsider another judge’s

order denying motions to transfer venue in a products liability and wrongful death action.

Id. at 656. The court held that, like any other order, an order denying a motion to transfer

may be considered at any time within the trial court’s plenary power. See id. at 658-59

(stating “[p]lenary power is that which is full, entire, complete, absolute, perfect,

unqualified”).

       Similar to the situation in Orion, Judge Shannon exercised his plenary power and

reconsidered and reversed a previously denied motion prior to final judgment. (CR 29).

Judge Shannon’s December 5, 2011 Order granting appellee’s no evidence motion for

summary judgment was a proper exercise of the trial court’s plenary power. The fact that

appellant does not like the ruling or wrongly assumes Judge Shannon was acting pursuant

some motion filed by appellees is not grounds for being granted a bill of review.

       Appellant also seems to be making some argument that what occurred at the

hearing on his bill of review somehow entitles him to a bill of review. While it is unclear

from his brief what he is arguing, whatever it is does not entitle him to a bill of review.

                                              -4-
       On October 24, 2014 Judge Michael E. Mery heard appellant’s bill of review.

Appellant was present and allowed to make his arguments. (CR 49-50) Judge Mery

denied the bill of review, a fact appellant acknowledges on page 7 of his brief.

Therefore, he has no basis to contend the bill of review hearing occurred without his

participation or that he did not know of the ruling. Judge Mery heard the arguments and

ruled that the bill of review should not be granted. This was the proper ruling based on

the arguments set forth above. Thus, nothing occurring on October 24, 2014 entitles him

to a bill of review. The ruling Judge Mery made was correct and should be upheld.

                                           V.
                                       CONCLUSION

       This Court should deny this appeal. Plaintiff cannot meet the one element needed

to prove his entitlement to a bill of review. That is, he cannot show his due process was

denied due to lack of service. His mistaken belief that Judge Shannon acted based on

some motion filed by appellees is not grounds for a bill of review. Judge Mery correctly

denied the bill of review because no facts supported the grating of the bill.

                                         VI.
                                  PRAYER FOR RELIEF

       For these reasons, appellees respectfully request that this Court deny this appeal

and uphold the denial of the bill of review. Further, appellees pray that this court grant

all other relief to which it is entitled in law and equity.

                                             Respectfully submitted,

                                             /s/Clarkson F. Brown
                                             Clarkson F. Brown
                                               -5-
                                         State Bar No. 00798082
                                         Assistant Criminal District Attorney
                                         - Civil Division
                                         101 W. Nueva, Suite 735
                                         San Antonio, Texas 78205-3030
                                         Telephone: (210) 335-3918
                                         Telecopier: (210) 335-2773
                                         Attorney for Defendants –Appellees Bexar
                                         County, Texas and Sheriff Ralph Lopez, et al
                            CERTIFICATE OF SERVICE

      I do hereby certify that a true and correct copy of the above and foregoing

document has been served on this 3rd day of August, 2015 to the following:



John E. Rodarte Sr.                              CMRRR 7014 1200 0001 2586 7820
TDCJ 1263270
Clements Unit
9601 Spur 591
Amarillo, TX 79107-9606
Pro Se

Fourth Court of Appeals                          By Efile
300 Dolorosa, 3rd Fl., Suite 3200
San Antonio, Texas 78205



                                                 /s/Clarkson F. Brown
                                                 Clarkson F. Brown




                                           -6-
                                NO. 04-15-00012-CV

                          THE COURT OF APPEALS
                    FOR THE FOURTH DISTRICT OF TEXAS
                      SITTING AT SAN ANTONIO, TEXAS



                             JOHN E. RODARTE SR.
                                  Appellant,

                                         V.

       BEXAR COUNTY, TEXAS AND SHERIFF RALPH LOPEZ, ET AL
                            Appellees

     _________________________________________________________________

                          BRIEF OF APPELLEES,
        BEXAR COUNTY, TEXAS AND SHERIFF RALPH LOPEZ, ET AL
     _________________________________________________________________

                                    APPENDIX

1.     Judge Shannon’s Order-CR 29
2.     Order Denying Bill of Review-CR 49
3.     Judge’s Notes regarding Bill of Review Hearing-CR 50




                                         -7-
29
49
50
