                                                                           ACCEPTED
                                                                        04-14-00551-cv
                                                           FOURTH COURT OF APPEALS
                                                                SAN ANTONIO, TEXAS
                                                                 11/5/2015 11:11:01 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
                                           11/5/2015 11:11:01 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



     APPELLANT’S MOTION FOR RECONSIDERATION EN BANC

                                       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




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      TO THE HONORABLE JUSTICES OF SAID COURT:

      Now comes, Pablo Soliz, Appellant in the above entitled and numbered

cause, by and through his pro bono attorney of record, Rick Soliz, and submits

this First Motion for Reconsideration En Banc. For good cause, Appellant

shows as follows.

       ISSUES PRESENTED FOR RECONSIDERATION EN BANC

      Appellant submits this response to the opinion issued by the Court on July

22, 2015, and subsequent denial of a motion for rehearing and requests that the

Court consider the following issues:

Issue 1: The Court of Appeals erred in finding that Appellant should have done

the impossible of enrolling in required training when not allowed by those

conspiring to remove him from office and by holding that any particular

summary judgment defense need be stated in the removal statute itself.

Issue 2: The Court of Appeals erred in finding that Appellant is not entitled to

his requested and constitutionally protected right to a jury trial.

Issue 3: The Court of Appeals erred in ruling that Appellant has not claimed a

due process violation, that he must use the words “due process” when pointing

out a due process violation and that he is required to do either or the issue is

waived.


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                                            I.

                                     SUMMARY

      Constable Soliz has more education and training than other elected law

enforcement officer in Brooks County or adjacent counties. Historically in

Texas, elected constables had 2 years from taking office to receive required

training. And prior to that, permanently appointed constables need never reach

certification. Constable Soliz has received some formal training at Sam Houston

State University since taking office. Constable Soliz has a 4 year college degree

and additional training. He has been certified as a Texas licensed peace officer

and has served multiple jurisdictions through employment and election.

      Brooks County is one of the most impoverished in the state. And it has

always lacked educated, competent and moral law enforcement. Many law

enforcement agents, including several cops, an elected district judge and an

elected district attorney have been arrested and convicted in recent times in

Brooks County alone. All of who had one thing in common – formal complaints

against them by Constable Soliz. When an agent with morals happens to appear

as with Appellant, an "all points bulletin" is put out to destroy him. How dare

someone question inept and law violating authority in South Texas! By way of

just a few specific examples pertaining to Brooks County's recent history: An



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elected district attorney has been disbarred and jailed. Prior to his election, he

was trained and personally assisted as first assistant, by the elected district

attorney he later ran against and beat. The mentor is now the district judge, who

replaced the last judge who was prosecuted, convicted and removed from the

bench for life. The current judge recused himself from this proceeding since

Constable Soliz simply knows too much history about the judge, the court's

inner workings and related offices. The sheriff during these times was booted

out of town by votes and investigated as was his successor. They avoided

prosecution multiple times as do most local cops who are merely fired, demoted

or transferred among the various local agencies, instead of prosecuted. In the

last few months though, more than half a dozen cops in the very small county

seat and only city, have been merely fired for illegal and felonious conduct or

actually prosecuted and sent to jail. And more investigation is at hand of several

at multiple levels. And of course the appellee's office's head has been indicted

for serious crimes as has our governor. I'm sure I have failed to mention others.

And that gets us to Constable Soliz. Persecuted over the years by those I have

mentioned above for investigating and complaining about their illegal conduct,

and now persecuted for lack of training by the indicted attorney general

opposing this appeal. Training denied to him by those who reported him to



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appellee's offices and asked for removal proceedings. This is somewhat of a

joke since Constable Soliz has more experience and training than anyone else on

any local police force and including the bloating number of unnecessary state

and federal officers in the area now tripping over themselves. Moreover, it does

not take any legal action to note that the law cannot require the impossible.

Constable Soliz was specifically targeted and illegally prevented from enrolling

in the training facility Brooks County utilizes - based on Constable Soliz's age –

according the head of the training academy. As an aside, why hasn't anyone

checked training and test records for all other peace officers in the County,

including the illiterate ones. Could it be no one would be left to police the area?

This is selective and vindictive prosecution. None of what I say is meant to

disparage the good work of opposing counsel, who has been as professional and

competent as can be, under the circumstances.


                                        II.


               ARGUMENT, AUTHORITY AND EVIDENCE


      The standard upon summary judgment is, “whether, after considering all

evidence in a light most favorable to the nonmoving party, the moving party is

entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,

106 S. Ct. 2548, 2552 (1986). The Supreme Court outlined three principals that

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would determine if summary judgment was appropriate: 1) The party moving for

the summary judgment must meet an initial burden of showing no genuine issue

of material fact exists, 2) The substantive law governing the cases will

determine what issues are material. 3) If the moving party meets its burden, the

party opposing the motion must present affirmative evidence and must produce

more than a mere scintilla of evidence to overcome the motion; and 4) The

court does not need to look to the entire record to establish whether a genuine

issue exists requiring trial, but need only look to those portions of the record to

which the parties point to the court. Id at 2552-55; See also 3 ATLA’s Litigating

Tort Cases § 31.3. A fact is material if its resolution might affect the outcome

of the suit. See Anderson v. Liberty Lobby, Ins., 477 U.S. at 248. Rule 56(c)

also requires the dispute be “genuine”.


      When facts are unavailable to the nonmovant. If a nonmovant shows by

affidavit or declaration that, for specified reasons, it cannot present facts

essential to justify its opposition, the court may: (1) defer considering the motion

or deny it; (2) allow time to obtain affidavits or declarations or to take

discovery; or (3) issue any other appropriate order. See Fed. R. Civ. P. 56(d) (1-

3). Constable Soliz has a 4 year college degree and additional training. He has

been certified as a Texas licensed peace officer.



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      A constable is elected to hold office “for four years and until” his or her

successor is elected and qualified. Tex. Const. V, sec. 18(a). Where the

constitution prescribes the qualifications for holding a particular office, the

legislature lacks the power to change or add to those qualifications unless the

constitution provides that power. Luna v. Blanton, 478 S.W. 2nd 76 (Tex. 1972).


                                         V.


                                   TRAINING


      The government alleges that Constable Soliz is not licensed because he

did not obtain training in the appropriate amount of time. The Constable replies

that he trained and was licensed long ago therefore there is a fact dispute.

Constable Soliz worked as an elected, licensed peace officer and hired licensed

peace officer for multiple agencies. That training and licensure does not

disappear in thin air as if it never happened simply because of the passage of

time. Are elderly people and their accomplishments to be discarded as if they

never occurred? As mentioned, Constable Soliz has more education, training

and experience than any other constable in Brooks County and possibly all of

South Texas. Additionally, Brooks County belongs to the Coastal Bend Council

of Governments therefore Brooks County officials always look to Del Mar

Police Academy in Corpus Christi as their home school for training purposes.

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And Brooks County officials are reimbursed expenses for training by Brooks

County. Constable Soliz met with Del Mar’s Director Stan Repka who refused

to provide an application to Constable Soliz and told him to look elsewhere

because of primarily because of his age and the fact that he would not be able to

pass the rigorous physical tests during the training. Constable Soliz then asked

Brooks County Commisioner’s Court and head of commissioner's court, County

Court Judge Raul Ramirez for financial support, just like they provide for every

other peace officer in the county when it deals with mandatory mandatory

training, in order to attend any alternative academy in order to begin and

complete his required training. Mr. Ramirez, who was not reelected and is

leaving office with the his county government in financial ruin for acts during

his tenure, blocked and denied financial assistance at any alternative school and

instead later reported this Constable to the attorney general’s office due to lack

of training. Such actions commenced these proceedings. Constable Soliz’s

income, less than $800.00 a month constable salary, was completely insufficient

to pay for travel expenses and additional training costs. Coincidentally, the

government about the same time, also took his place of business without

compensation for the construction of I 69 through town.




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      Later, on April 23, 2013, Constable Soliz traveled to St. Mary’s

University in San Antonio, TX to appear for a previously scheduled appointment

to complete the TCOLE (Texas Commission on Law Enforcement) State Test in

order to recertify. Constable Soliz had studied for two months for this test and

paid the $20.00 fee. Mr. Soliz was not allowed to participate in the exam by the

same entity that scheduled his appointment, presumably because he had not

completed training.


      So to summarize, there is clearly a disputed fact relative to training.

Appellee has not disproved Appellant's fact of being disallowed and blocked

from obtaining his training. Constable Soliz's efforts to obtain additional

training were stifled by gatekeepers who held the gate shut. Therefore, it was in

every way impossible to comply with any mandatory training, if any, during the

time period in question.


      What are our appellate courts created for if not to rectify situations like

this from the hands of abusive government efforts to prevent training and

remove a qualified, constitutionally elected public servant?


      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



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

movant’s summary judgment evidence.

                                              VI.


               ARGUMENT AND AUTHORITIES IN ORDER

                                     ISSUE 1

      Appellant cannot be expected to do the impossible. The law must allow

for the mandated procedures to be possible. Some things do not have to be

written into the law but are common judicial sense. What should Constable

Soliz do? Should he begin arresting those who prevent him from fulfilling the

training mandate. Or should he shoot his way into the training facility and sit

down for classes? For the government to mandate actions, then purposely single

out an individual to prevent the individual from fulfilling those actions, is

beyond sinister and plainly illegal. This defense has a built in fact dispute that

Appellee must disprove to prevail upon summary judgment. The appellee must

disprove Appellant's allegation or show there is no dispute of a material fact. To

interpret the statute as this court has done makes the statute unconstitutional.

Appellant cannot contest what he cannot foresee until he sees it as he has here.

      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



                                         10
provided with money to obtain training and licensure, in response to a motion

for summary judgment. 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.

      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. And that the Brooks

County Judge (appellee’s affiant in the motion for partial summary judgment)

refused to provide funding, provided to all other regularly, for appellant to

attend mandatory training that is the subject of this court’s judgment. I stress

that 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



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appellant had already been through this same academy years earlier and had

obtained his license after such enrollment and completion of academy training.

                                     ISSUE 2

      The government often utilizes motions such as this to prevent its

opposition from getting his day in court. What do they have to lose? When are

they sanctioned for doing so? Constable Soliz probably wins his jury trial on the

merits in this case and the government is aware of this. What jury would not

apply common sense and heavy weight to the prohibition appellant faced while

trying to comply with training? This court has prevented such jury reasoning.

Not only does the government file frivolous motions to the government courts

on a regular basis, but it simultaneously knowingly protects lawbreaking

government agents from exposure at trial under oath.

                                         ISSUE 3

      Appellant has raised due process as a violation below. Not only does

appellant clearly raise due process in his answer to the lawsuit, but the trial court

preferred and held a hearing on this motion and appellant raised all the issues

expressed here, and answered the court's questions and more at such hearing.

Appellant did so by way of explanation of his points in his response to the

motion for partial summary judgment. This discussion was recorded and has



                                         12
been provided to this court. But beyond that, when is not ruling correctly on a

motion for summary judgment, and not ruling correctly on appeal, therefore not

providing a litigant with his properly requested jury trial, not a due process

violation? This court may on its own volition, recognize and rule upon due

process violations. It may not, though, pretend they do not exist if not raised.

Such rulings are left for other issues not of constitutional dimentions. For this

court to allow such a travesty is in and of itself a due process violation.

Appellate courts exist to rectify errors below and such is not occurring here.

                                     PRAYER

      Wherefore, premises considered, Appellant prays that this motion for

reconsideration en banc be unconditionally granted, that this Court grant the

relief sought (allow a trial on the merits to proceed) or set the matter for oral

argument and after argument, reverse the judgment of the courts below and

remand the case for trial on the merits.



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

document will be served on opposing counsel.




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                   CERTIFICATE OF COMPLIANCE

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

to be well under the maximum limit.

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




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