                                                                      ACCEPTED
                                                                  03-15-00374-CV
                                                                          7341140
                                                       THIRD COURT OF APPEALS
                                                                  AUSTIN, TEXAS
                                                            10/12/2015 9:30:36 PM
                                                                JEFFREY D. KYLE
                No. 03-15-00374-CV                                         CLERK

           IN THE COURT OF APPEALS
       FOR THE THIRD DISTRICT OF TEXAS
                                                 FILED IN
                AUSTIN, TEXAS             3rd COURT OF APPEALS
                                               AUSTIN, TEXAS
               JAMAR OSBORNE,             10/12/2015 9:30:36 PM
                                         Appellant,
                                              JEFFREY D. KYLE
                    vs.                             Clerk
          WARREN KENNETH PAXTON,
                                       Appellee.
APPEAL FROM THE 250TH JUDICIAL DISTRICT COURT
            TRAVIS COUNTY, TEXAS
     TRIAL COURT CASE NO. D-1-GN-14-004694


             _______________________
             BRIEF FOR APPEALANT



                   JAMAR OSBORNE, J.D., M.P.A
                   APPELLANT SUI JURIS
                   P.O. Box 195226
                   Dallas, TX 75219
                   Osbr117@aol.com

                   ORAL ARGUMENT REQUESTED
                     IDENTITY OF PARTIES AND COUNSEL
      Pursuant to Tex. R. App. P. 38.1(a), the following is a complete list of the names

and addresses of all parties and counsel in this case.

      Appellant: Jamar Osborne, P.O. Box 195226, Dallas, TX 75219.

      Appellee: Warren Kenneth Paxton “Paxton.”

      Appellee’s Counsel: Julie A. Springer and Kevin J. Terrazas, 212 Lavaca St.,
Suite 200,
       Austin TX 78701.




                                STATEMENT OF THE CASE
      Nature of the Case:       In this statewide election contest, Green Party Candidate

                                 for Texas Attorney General Jamar Osborne “Appellant,”

                                 seeks to disqualify Paxton, Republican Candidate for

                                 Attorney General based primarily upon the separation of

                                 powers doctrine.

      Trial court and judge: Stephen Yelenosky, Presiding Judge, 201st District Court

                                 of Travis County, Texas, Cause No. D-1-GN-14-004694.

      Trial Court Disposition:On January 22, 2015, the trial court entered an order
                              granting Paxton partial summary judgment as to
                              Appellant’s Original Petition. C.R. 37.

                                 On March 12, 2015, the trial court entered an final
                                 order granting Paxton summary judgment. C.R. 46. On
                                 April 6, 2015, Appellant filed a Motion for New Trial
                                 and For Appointment of Master in Chancery. C.R. 54-
                                 60. On April 8, 2015, the trial court denied Appellant’s
                                 Motion. C.R. 53.
                                              i
On June 10, 2015, Appellant filed a Notice of Appeal.
C.R. 61.




           ii
                       TABLE OF CONTENTS
Identity of Parties………….……………………………………………………….i

Statement of the case…………………………………………………………….i-ii

Table of contents…………………………………………………………….........iii

Index of authorities………..…………………………………………………...iv-vi

Statement of facts……………………………………………………………….1-2

Issues Presented…………………………………………………………………...2

Standard of review………………………………………………………...…….2-3

Summary of the argument……………………………………………………….3-4

Argument………………………………………………………………………4-16

      It was Improper For the District Court to Grant Paxton Summary Judgment

      Without Any Evidence and In Conjunction with a General Denial……4-10

      As a De Facto Member of the Judiciary, Paxton is Ineligible to Serve as

      Attorney General Under the Doctrine of Separation of Powers…….…10-14

      The Court has a Duty to Prevent Paxton from Intruding Upon Appellant's

      Property and Political Rights by Occupying an Office For Which He is

      Lawfully Ineligible……………………………………………………15-16

Conclusion and Prayer…………………………………………………………...16

Certificate of service

Certificate of compliance

Appendix


                                    iii
                               INDEX OF AUTHORITIES

      Cases

Aldine Independent School District v. Standley, 280 S.W. 2d. 578 (Tex. 1955)…….......12

Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Cr. App. 1990)………........14

Arrellano v. Texas Employment Comm'n, 810 S.W.2d 767 (Tex. 1991)…….………........6

Boswell v. Handley, 397 S.W. 2d 213 (Tex. 1965)……………………………………….4


Brooks v. First Assembly of God Church of Cleburne, 86 S.W.3d 793 (Tex. App. --Waco


      2002)…………………………………………………………………………… 8-9

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979)………...…… 7


Commission For Lawyer Discipline v. Benton, 1998 Tex. Lexis 121 (Tex. 1998)……...10


Cerda v. BarClays Capital Real Estate Inc., 612 F.3d 781 (5th Cir. 2010)……….…12-13

City of Dallas v. Dallas Consolidated Street Railway Co., 105 Tex. 337 (Tex. 1912)….15


Crain v. Smith, 2000 Tex. App. Lexis 3582 (Tex App. – Corpus Christi 2000.....……...11


Cuyler v. Minns, 60 S.W.3d 209 (Tex. App. – Houston 2001, pet. Denied)……...…….....8

Dickson v. Strickland, 114 Tex. 176 (Tex. 1924)…………………...…………………...15

Ex Parte Wall, 107 U.S. 265 (1883)…………………...………………………………...11

Fung's Kitchen Inc., 2007 Tex. App. LEXIS 4812 (Tex. App. – Houston 2007)…….......8

Gilmore v. Waples, 108 Tex. 167 (Tex. 1916)…………………………......……………15


                                          iv
Great American Reserve Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.

      1965)…………….……………………………………………………………...…7

Hatton v. Griggar, 2006 Tex. App. LEXIS 10066 (Tex. App. – Houston 2006)………....6


Hankamer v. Templin. 143 Tex. 572 (Tex. 1945)………………......…………………...10

In re Allcat Claims Service, L.P., 356 S.W.3d 455 (Tex. 2011)………………………....14

In Re Guerra, 235 S.W.3d 392 (Tex. App. – Corpus Christi-Edinburg 2007)…………...3

In Re Lowery, 999 S.W.2d 639 (Review Tribunal of Texas 1998)………………......….13

Irwin v. State, 177 S.W. 2d 970 (Tex. Crim. App. 1994)…………..…………………....12

Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010)…………………………………………7-8

Langever v. Miller, 124 Tex. 80 (Tex. 1934)…………..………………………………..14

McConnell v. Southside Indep. Sch. Dist., 858 S.W. 2d 337 (Tex. 1993)……...……….. 7

Mccullouch v. Maryland, 4 L. Ed. 579 (1819)……………………………………….....11

Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex. 1985)……………..……7

Opal Dent Gibbs et al. v. General Motors Corporation Tex., 450 S.W.2d 827 (Tex.

      1970)…................................................................................................................... 7

Poole v. Poole, 1975 Tex. App. Lexis 3334 (Tex. App. – Waco 1975)…………………..5

Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003)…………....…2

Public Utility Commission v. Cofer, 754 S.W.2d 121 (Tex. 1988)…………………….....3

Reynolds v. State of Texas, 967 S.W.2d 493 (Tex. App. – Houston 1998)………..…15-16




                                                              v
Rogers v. Ricane Enterprises, Inc. 772 S.W.2d 76 (Tex. 1989)………………………….3

Southwestern Fire & Casualty Company v. Larue, 367 S.W.2d. 162 Tex. 1963)……...4-5

Sowell v. The Kroger Co., 263 S.W.3d 36 (Tex. App. --Houston 2006). ………………...3

The Finance Commission of Texas v. Norward, 418 S.W.3d 566 (Tex. 2013)………….14

The State ex rel. Owners, 63 Tex. 261 (Tex. 1885)…………………………………......15

Texas Workers Compensation Commission v. Garcia, 862 S.W.2d 61 (Tex. App. – San

     Antonio 1993)…...………………………...…………………………………..…16

Thomas v. Abernathy County Line Indep. Sch. Dist. 290 S.W. 152, 153 (Tex. Comm'n

     App. 127 judgment adopted)………………….……..…………………………...13

Zorilla v. Aypco Construction II, 2015 Lexis 555 (Tex. 2015)………………...………... 5



Statutes, Rules, and Constitutional Provisions

State Bar Rules…………………………………………………………………...……..11

Tex. Att'y Gen. Op. No. GA-0214 (2004)…………………………………………........13

Tex. Const………………………………………………………………………...1, 10, 12

Tex. Elec. Code……………………………………………………………………...….12

Tex. Gov. Code Sect. ………………………………………………………...……..10, 11

Tex. Rev. Civ. Stat. Ann. Art. 320a-1 Sect. 3……………………………………………11

Tex. R. Civ. P.. ……………………………...………………………………………4, 6, 9




                                         vi
                               STATEMENT OF FACTS
      Jamar Osborne ( Appellant ) is the 2014 Green Party Candidate for Texas

Attorney General. C.R. 4 at ¶ 5. Appellant is a United States Citizen, over the age

of 18, has not been determined to be mentally incapacitated, has not been

convicted of a felony and has resided continuously in the State of Texas for at least

twelve months prior to the Texas statewide election in November 2014. C.R. 4 at ¶

5. Accordingly, Appellant is a legally qualified candidate for the position of Texas

Attorney General. C.R. 4 at ¶ 5.

      Warren Kenneth Paxton ( Paxton ) is the 2014 Republican Party Candidate

for Texas Attorney General. C.R. 4 at ¶ 6. Paxton is the candidate for Texas

Attorney General who received the most number of votes. C.R. 4 at ¶ 6. Paxton is

an attorney licensed in the State of Texas and is a member of the State Bar of

Texas. C.R. 4 at ¶ 6. As a member of the State Bar of Texas, Paxton is a de facto

member of the judiciary and is therefore ineligible to contemporaneously serve as

an executive officer. C.R. 4 at ¶ 10. Paxton was not even eligible to be placed on

the ballot. C.R. 4 at ¶ 10. Appellant is the only 2014 candidate for Texas Attorney

General who is neither a licensed attorney in the State of Texas, nor a member of

the State Bar of Texas. C.R. 4 at ¶ 8.

      Under Article 4, Section 4 of the Texas Constitution, a person is not elected

until the Secretary of State has delivered the election returns to the Speaker of the




                                         1 of 17
House during the first week of the legislative session after being declaring the

person as having the highest number of voters and being constitutionally eligible.

C.R. 30. The current legislative session did not begin until January 13, 2015. C.R.

30. However, once Paxton received notice that the election was being challenged,

he made arrangements to have former Attorney General Greg Abbott administer

his oath of office prior to his term of office and during the wrong legislative

session. C.R. 31. The Speaker of the House never had a chance to declare Paxton

as the candidate receiving the highest number of votes, nor did the Speaker of the

House have a chance to declare Paxton constitutionally eligible. C.R. 31. If Greg

Abbott had not sworn-in Paxton prior to his term of office, Greg Abbott would

have been required to continue serving as Attorney General and could not be

sworn-in as governor. C.R. 31.

Issue 1: Whether the district court erred by granting summary judgment.

Issue 2. Whether the district court abused its discretion by denying Appellant

an opportunity to conduct discovery.

All other sections are incorporated by reference.

                               Standard of Review

      A trial court's summary judgment is reviewed de novo. Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Courts must review




                                       2 of 17
summary judgment motions in the light most favorable to the non-movant,

disregarding all contrary evidence and inferences. Sowell v. The Kroger Co., 263

S.W.3d 36, 38 (Tex. App. --Houston 2006). When the trial court does not specify

the basis for its summary judgment, the appealing party must show that the

summary judgment was granted in error base on any ground asserted in the motion.

Rogers v. Ricane Enterprises, Inc. 772 S.W.2d 76, 79 (Tex. 1989).

      An abuse of discretion exists "when the trial court's decision is arbitrary,

unreasonable, and without reference to guiding principles." Id. A trial court's clear

failure to analyze or apply the law correctly even in an unsettled area of law, is an

abuse of discretion and may result in reversal by extraordinary writ. See In Re:

Guerra, 235 S.W.3d 392, 403 (Tex. App. – Corpus Christi-Edinburg 2007).

Courts not only have the power to ensure that judicial proceedings remain truly

adversary in nature, but have a duty to do so. Public Utility Commission v. Cofer,

754 S.W.2d 121, 124 (Tex. 1988).

                        SUMMARY OF THE ARGMENT

      In this case, Appellant argues that the district court erred by granting Paxton

summary judgment without presenting any evidence and despite the fact that he

filed a general denial, putting all material questions of fact at issue. Appellant

further argues that the district court treated Paxton's motion for summary judgment

as a no-evidence motion for summary judgment and was therefore improper given




                                        3 of 17
that Appellant was not given an opportunity for discovery and given that Appellant

presented more than a scintilla of probative evidence raising a genuine issue of

material fact.



                                   ARGUMENT

It was Improper For the District Court to Grant Paxton Summary Judgment

Without Any Evidence and In Conjunction with a General Denial

      A traditional summary judgment may only be granted where the pleadings,

depositions, and admissions on file, together with the affidavits, if any, show that

except as to the amount of damages, there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law. Tex. R.

Civ. P. 166(a). A traditional motion for summary judgment may also be based on

uncontroverted testimonial evidence of an interested witness if the evidence is

clear, positive and direct, otherwise credible and free from contradictions and

inconsistencies, and could have been readily controverted. Id. at 166(a)(c).

Pleadings simply outline the issues; they are not evidence, even for summary

judgment purposes. Boswell v. Handley, 397 S.W. 2d 213 at **6-7 (Tex. 1965). A

motion for summary judgment may only be treated as a pleading where it is

verified by a sworn affidavit. Id. at *12.




                                        4 of 17
      A general denial is not a plea; it merely imposes on the plaintiff the duty to

produce and offer evidence. Southwestern Fire & Casualty Company v. Larue,

367 S.W.2d. 162 at *9 (Tex. 1963). A general denial is sufficient in law to raise

issues of fact with respect to recovery matter essential to the plaintiff's right of

recovery, save only those matters required to be denied under oath and puts the

burden on the plaintiff to prove all such matters. Id. at *8. General denials raise

issues of fact; traditional summary judgments are therefore improper. Id. at *9. A

Texas Appellate Court reversed and remanded a trial court's decision to grant

summary judgment, holding that summary judgment was improper because the

defendant filed a general denial. See Poole v. Poole, 1975 Tex. App. Lexis 3334 at

**3 and 10 (Tex. App. – Waco 1975). By filing a general denial, the defendant

creates genuine issues of material fact. See Id.


      An affirmative defense is a defendant's assertion of facts and arguments that

if true, will defeat the plaintiff's claims even if all the allegations in the complaint

are true. Zorilla v. Aypco Construction II, 2015 Lexis 555 at **29-30 (Tex. 2015).

An affirmative defense acknowledges the existence of prima facie liability but

asserts a proposition which if true would avoid liability. Id. at 30. Affirmative

defenses are based on a different set of facts from those establishing the cause of

action. Id. Under Tex. Civ. P. 94 and 95, affirmative defenses must be specifically

plead and may not be shown under a general denial.



                                         5 of 17
      In the instant case, Paxton filed a general denial and claimed an affirmative

defense with no accompanying facts. Paxton presented absolutely no summary

judgment evidence. Paxton presented no testimony, made no admissions, filed no

affidavits and took no depositions. Oral arguments are not permitted at a hearing

on a traditional motion for summary judgment.            See Arrellano v. Texas

Employment Comm'n, 810 S.W.2d 767, 770 (Tex. 1991) (citing Tex. R. Civ. P.

166a(c). However, the District Court ordered the parties to make oral argument

over Appellant's verbal objection. Therefore, the only reasonable conclusion that

can be made is that the District Court did not treat Paxton's motions for summary

judgment as traditional, but treated them as motions for no-evidence summary

judgment.

      The distinction between a traditional motion for summary judgment and a

no-evidence motion for summary judgment is important because they invoke

different standards of review. Hatton v. Griggar, 2006 Tex. App. LEXIS 10066 at

**8-9 (Tex. App. – Houston 2006). Under a traditional motion for summary

judgment, the movant must show that there is no genuine issue of material fact and

that judgment should be granted as a matter of law. Id. at *9. A defendant is only

entitled to traditional summary judgment if he conclusively negates at least one of

the essential elements of each of the plaintiff's causes of action or conclusively

establishes all elements of an affirmative defense is entitled to summary




                                      6 of 17
judgment. Id. at *10. A defendant moving for summary judgment must either (1)

disprove at least one element of the plaintiff's theory of recovery, or (2) plead and

conclusively establish each essential element of an affirmative defense. See City of

Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).

       [S]ummary judgments must stand or fall on their own merits; a

nonmovant's failure to answer or respond cannot supply by default the summary

judgment proof necessary to establish the movant's right.     McConnell v. Southside

Indep. Sch. Dist., 858 S.W. 2d 337, 343 (Tex. 1993). For the evaluation of a

motion for partial summary judgment, a court must take evidence favorable to the

non-movant as true. Nixon v. Mr. Property Management Co., 690 S.W.2d 546,

548-49 (Tex. 1985). Evidence favoring the movant's position cannot be considered

unless it is uncontroverted. Great American Reserve Co. v. San Antonio Plumbing

Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). In deciding a traditional motion for

summary judgment, the issue is not whether the summary judgment proof raises

fact issues with reference to the essential elements of a plaintiff's claim or cause of

action, but is whether the summary judgment proof establishes as a matter of law

that there is no genuine issue of fact as to one or more of the essential elements of

the plaintiff's cause of action.     Opal Dent Gibbs et al. v. General Motors

Corporation Tex., 450 S.W.2d 827, 828 (Tex. 1970).




                                        7 of 17
      No-evidence summary judgments may only be granted where there is: 1. a

complete absence of evidence of a vital fact; 2. the court is barred by the rules of

law or evidence from giving weight to the only evidence offered to prove a vital

fact; the evidence offered to prove a vital fact is no more than a mere scintilla; or 4.

the evidence establishes conclusively the opposite of the vital fact. Jelinek v.

Casas, 328 S.W.3d 526 at **10-11 (Tex. 2010). A no-evidence summary

judgment is improper if the respondent brings forth more than a scintilla of

probative evidence raising a genuine issue of material fact. Ton's Remodeling v.

Fung's Kitchen Inc., 2007 Tex. App. LEXIS 4812 at *6 (Tex. App. – Houston

2007).

      Conclusory or general motions for no-evidence summary judgment are not

permitted. See Cuyler v. Minns, 60 S.W.3d 209, 212 (Tex. App. – Houston 2001,

pet. Denied). No-evidence summary judgments must be reviewed in the light most

favorable to the non-movement. Brooks v. First Assembly of God Church of

Cleburne, 86 S.W.3d 793 at n.2 (Tex. App. --Waco 2002). A no-evidence

summary judgment motion will be defeated if the non-movant produces more than

a scintilla of probative evidence to raise a genuine issue of material fact. Id. A

movant for no-evidence summary judgment has the burden to produce

accompanying evidence to said motion showing that except as to the amount of

damages, there is no genuine issue as to any material fact and the moving party is




                                         8 of 17
entitled to judgment as a matter of law on the issues expressly set out in the

motion. Id. at 796.

      A no-evidence motion for summary judgment is proper only after [emphasis

added] adequate time for discovery has been given. Tex. R. Civ. P. 166(a)(i).

Additionally, a no-evidence motion for summary judgment must expressly state the

elements as to which there is no evidence. Id. The court may grant the motion

only after the respondent is given an opportunity to produce summary judgment

evidence raising a genuine issue of material fact. See Id.

      In the instant case, Paxton's motion for summary judgment was entirely

conclusory with no supporting facts or evidence and failed to identify any element

of Appellant's claim for which there was no evidence. The district court granted a

partial summary judgment despite the fact that Paxton had filed a general denial

and an affirmative defense putting all material issues of fact in dispute. See C.R.

10-19; See also C.R. 37. Paxton has not even admitted that as member of the

Texas Bar, he is a de facto member of the Texas judiciary.

      Appellant specifically requested an opportunity to conduct discovery. C.R.

28. However, the district court granted summary judgment without ever permitting

Appellate an opportunity to conduct discovery. Given that Paxton has presented

no summary evidence, this was clearly improper. The district court based its




                                        9 of 17
judgments on improper oral testimony and improper inferences drawn based on its

bias that a licensed attorney should not be precluded from serving in an executive

office. The district court did not view Appellant's Petition in the light most

favorable to Appellant, but viewed it in the light most favorable to Paxton simply

based on the controversial nature of this case.

As a De Facto Member of the Judiciary, Paxton is Ineligible to Serve as Attorney

General Under the Doctrine of Separation of Powers

      It is beyond dispute that attorneys are members of the judiciary. District

Attorneys and County Attorneys fall directly under the judicial branch. See Tex.

Const. Art. 5 Sect. 21. Additionally, law licenses are issued by the Supreme Court

of Texas. See Tex. Gov. Code Sect. 82.021. Attorneys are required to take an oath

of office [emphasis added] and to become officers of the court. Hankamer v.

Templin. 143 Tex. 572, 576 (Tex. 1945). Attorneys may be disciplined by the

Supreme Court of Texas, held liable for punishment, held in contempt and/or

removed from office [emphasis added]. Id.

      An attorney is not merely a person or a lawyer. Commission For Lawyer

Discipline v. Benton, 1998 Tex. Lexis 121 at *11 (Tex. 1998). He is an intimate

and trusted and essential part of the machinery of justice, an 'officer of the court

in the most compelling sense. Id. The license granted by the court requires




                                       10 of 17
members of the bar to conduct themselves in a manner compatible with the role of

the courts in the administration of justice. Id. at **13-14. The state may even

regulate an attorney's speech. Id. at 11.

      A lawyer has always been regarded as an officer of the court. Crain v.

Smith, 2000 Tex. App. Lexis 3582 at *6 (Tex App. – Corpus Christi 2000). By

preparing pleadings and affidavits, attorneys        set the judicial machinery in

motion.    Id. at *12. Similar to judicial immunity, attorneys are protected with

absolute privilege. This privilege protects an attorney who makes defamatory

statements in relation to a judicial proceeding, even if the attorney is aware that the

statement is false. Id.

      A state officer may not have a direct or indirect interest, including financial

and other interests, or engage in a business transaction or professional activity, or

incur any obligation of any nature that is in substantial conflict with the proper

discharge of the officer's or employee's duties in the public interest.     Tex. Gov.

Code Sect. 572.001. The State Bar of Texas is the administrative agency of the

judiciary. Tex. Gov. Code Sect. 81.011. Members of the State Bar are required to

pay dues in order to maintain active law licenses. State Bar Rule, Art. 1 Section 6.

These dues are analogous to a tax. It violates the separation of powers doctrine for

the judiciary to exercise tax authority over the executive branch. The power to tax

is the power to destroy. See Mccullouch v. Maryland, 4 L. Ed. 579, 607 (1819).



                                        11 of 17
Attorneys are regulated by the Supreme Court of Texas. See Tex. Rev. Civ. Stat.

Ann. Art. 320a-1 Sect. 3. Courts have the power to discipline attorneys through

fines and imprisonment; courts may also strike an attorney's name from the roll.

Ex Parte Wall, 107 U.S. 265, 272 (1883).

      A candidate is not eligible for public office where a provision in the Texas

Constitution or state statute prescribes eligibility requirements. See Tex. Elec.

Code. Ann. § 141.001. An elected state officer may only hold a non-elective office

contemporaneously where there is no conflict between the two offices. See Tex.

Const. Art. 16 Sect. 40 (c). To determine whether there is a conflict, courts may

look to statutes, ordinances, or constitutional provisions governing the officer to

determine whether any sovereign function of the government is conferred upon

the individual to be exercised by him for the benefit of the public largely

independent of the control of others.      Aldine Independent School District v.

Standley, 280 S.W. 2d. 578, 583 (Tex. 1955). In Irwin v. State, the court held that

Article XVI, Section 40 of the Texas Constitution barred police officers from

contemporaneously serving as special deputy sheriffs. See Irwin v. State, 177 S.W.

2d 970, 973 (Tex. Crim. App. 1994). The court reasoned that police officers and

deputy sheriffs were both civil office[s] of emolument in violation of Article

XVI, Section 40 of the Texas Constitution. Id.




                                      12 of 17
   The Texas Attorney General’s Office falls under the executive branch. See Tex.

Const. Art. § 22. Attorneys are de facto members of the judiciary. See Supra.

Tex. Const. Art. 2, Section 1 requires separation of powers within Texas

government. In interpreting the Texas Constitution, courts must "rely heavily on

its literal text and . . . give effect to its plain language." Cerda v. BarClays Capital

Real Estate Inc., 612 F.3d 781, 788 (5th Cir. 2010).

      When a public official is employed by two different governmental entities,

he is responsible to two different masters. See Tex. Att'y Gen. Op. No. GA-0214

(2004) at 3. Certain dual government employments violate the common doctrine

of incompatibility.   Id. Dual employments are incompatible when the public

official has conflicting allegiances or is subject to conflicting orders. A person

may not hold two offices where his loyalties and duties conflict. See Thomas v.

Abernathy County Line Indep. Sch. Dist. 290 S.W. 152, 153 (Tex. Comm'n App.

127 judgment adopted).

      "The complete independence of the courts of justice is peculiarly essential in

a limited constitution." In Re Bill R. Lowery, 999 S.W.2d 639 at *22 (Review

Tribunal of Texas 1998) (quoting Alexander Hamilton, The Federalist No. 78, at

2:292 (1788). An independent and vigorous judiciary is essential as a bulwark to

protect the rights of our citizens. Id.




                                          13 of 17
      The principle of separation of powers is foundational for federal and state

governments in this country and firmly embedded in our nation's history. The

Texas Constitution mandates:

             The powers of the Government of the State of Texas shall be divided

             into three distinct departments, each of which shall be confided to a

             separate body of magistracy, to wit: Those which are Legislative to

             one; those which are Executive to another, and those which are

             Judicial to another; and no person, or collection of persons, being of

             one of these departments, shall exercise any power properly attached

             to either of the others, except in the instances herein expressly

             permitted. The Finance Commission of Texas v. Norward, 418

             S.W.3d 566 at **3-4 (Tex. 2013).

       Exceptions to the constitutionally mandated separation of powers are never

to be implied in the least; they must be 'expressly permitted' by the Constitution

itself. Id. at *4. The doctrine of separation of powers is neither subtle nor

unimportant. In re Allcat Claims Service, L.P., 356 S.W.3d 455, 473 (Tex. 2011).

      The separation of powers principle is the very foundation of the government

of the United States and of the several States, is essential to the preservation of the

rights and liberties of the people, and should be thoughtfully and faithfully

observed by all clothed with the powers of government. Langever v. Miller, 124



                                        14 of 17
Tex. 80, 99 (Tex. 1934).        [T]he Judicial Department cannot be clothed with

Executive or Legislative power; and the Legislative 'magistracy' cannot exercise

the functions of either the Executive or the Judicial Departments.            Id.    The

greatest threat to liberty is the accumulation of power in a single branch of

government. Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Cr. App.

1990).

The Court has a Duty to Prevent Paxton from Intruding Upon Appellant's Property

and Political Rights by Occupying an Office For Which He is Lawfully Ineligible

      The Texas Supreme Court has consistently drawn a distinction between the

power to decide the result of an election which is a political question, and the

power to decide the right to hold an office after an election which is a judicial

question. Dickson v. Strickland, 114 Tex. 176, 192 (Tex. 1924). Courts have the

authority to determine the validity of elections and in cases of invalidity to protect

property rights which may be wrongfully impaired if such rights are not enforced.

City of Dallas v. Dallas Consolidated Street Railway Co., 105 Tex. 337, 341 (Tex.

1912).

         An office of profit is property, as much as any other article that can be

possessed. The State ex rel. Owners, 63 Tex. 261, 267 (Tex. 1885). When the

lawful owner of it is kept out of its possession by an intruder, he has just as much




                                         15 of 17
right to avail himself of this property through the courts as he would be able to

recover any other property through the courts. Id.

There is no distinction between civil rights and political rights; a court may not

shut its doors against the enforcement of such rights. Gilmore v. Waples, 108 Tex.

167 at *31 (Tex. 1916).

      When dealing with an issue of constitutional law, "It is emphatically the

province and duty of the judicial department to say what the law is. Reynolds v.

State of Texas, 967 S.W.2d 493, 497 (Tex. App. – Houston 1998) (quoting

Marbury v. Madison, 5 U.S. 137, 176 (1803).            If judges were to take their

constitutional duties seriously, they would not dismiss due course of law, equal

protection and the right to trial by jury guaranteed by the sovereign people as a

mere grab, smoke-screen or window dressing.           Texas Workers Compensation

Commission v. Garcia, 862 S.W.2d 61 at *157 (Tex. App. – San Antonio 1993).

                          CONCLUSION AND PRAYER

      Based on the foregoing reasons, the district court erred by granting partial

summary judgment and summary judgment and abused its discretion by denying

Appellant an opportunity to conduct discovery. Accordingly, the district court's

judgment should be reversed and remanded. Appellant further requests such

additional relief to which he may be entitled.




                                       16 of 17
       /s/ Jamar Osborne
       Jamar Osborne, J.D., M.P.A.
       Appellant Sui Juris
       P.O. Box 195226
       Dallas, TX 75219
       817-400-0091




17 of 17
                                    CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing document has been filed and

forwarded on October 9, 2015 to Julie A. Springer of Weisbart Springer Hayes, L.L.P, counsel for

Defendant Warren Kenneth Paxton electronically through eFileTexas.



                                                      /s/ Jamar Osborne
                                                      Jamar Osborne, J.D., M.P.A.
                                                      Appellant Sui Juris
                                                      P.O. Box 195226
                                                      Dallas, TX 75219
                                                      817-400-0091




                                CERTIFICATE OF COMPLAINCE

       I hereby certify that this brief is in compliance with the rules governing the length of briefs

prepared by electronic means. The brief was prepared using Microsoft Word 2010 to prepare this brief,

the total word count, not including those section excluded by rule is 3,785.


                                                      /s/ Jamar Osborne
                                                      Jamar Osborne, J.D., M.P.A.
                                                      Appellant Sui Juris
                                                      P.O. Box 195226
                                                      Dallas, TX 75219
                                                      817-400-0091
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