                                                                                         ACCEPTED
                                                                                    03-13-00075-CV
                                                                                           4602919
                                                                          THIRD COURT OF APPEALS
                                                                                     AUSTIN, TEXAS
March 27, 2015                                                                 3/23/2015 2:22:34 PM
                                                                                  JEFFREY D. KYLE
                                                                                             CLERK
                             NO. 03-13-00075-CV

                                                               RECEIVED IN
                                                          3rd COURT OF APPEALS
                   IN THE COURT OF APPEALS FOR          THE AUSTIN, TEXAS
                        THIRD DISTRICT OF TEXAS           3/23/2015 2:22:34 PM
                             AUSTIN, TEXAS                  JEFFREY D. KYLE
                                                                  Clerk


                         MICHAEL W. CARPENTER,
                                                                    Appellant

                                       v.

                           THE STATE OF TEXAS,
                                                                        Appellee


           Appeal from the 274th District Court of Hays County, Texas
                         Trial Court Cause No. 11-1960
               The Honorable Bert Richardson, Judge Presiding


                           BRIEF OF APPELLEE
                           THE STATE OF TEXAS



                               MARK D. KENNEDY
                               SBN 24032498 / mark.kennedy@co.hays.tx.us
                               OFFICE OF GENERAL COUNSEL
                               HAYS COUNTY, TEXAS
                               111 E. San Antonio, Suite 202
                               San Marcos, Texas 78666
                               512.393.2219 (telephone)
                               512.392.6500 (telecopier)

                               Attorney for Appellee
                  IDENTITY OF PARTIES AND COUNSEL

      A complete list of all parties to the trial court’s judgment, together with the

names and addresses of all trial and appellate counsel, appears below.

Appellant:                              Michael W. Carpenter
                                        Pro Se

                                        Inmate #1201045
                                        8 O.B. ELLIS UNIT
                                        1697 FM 980
                                        Huntsville, TX 77343


Appellee:                               Wes W. Mau, in his capacity as an
                                        Assistant District Attorney for Hays
                                        County, Texas, Representing the State of
                                        Texas

                                        Hays County Government Center
                                        712 S. Stagecoach Trail, Suite 2057
                                        San Marcos, Texas 78666

Trial Counsel for Appellee:             Mark Zuniga
                                        State Bar No. 24013804
                                        Mark.Zuniga@dfps.state.tx.us

Substitute/Appellate Counsel:           Mark D. Kennedy
                                        State Bar No. 24032498
                                        General Counsel – Hays County
                                        Mark.Kennedy@co.hays.tx.us
                                        111 E. San Antonio, Suite 202
                                        San Marcos, Texas 78666




                                         i
                                          TABLE OF CONTENTS

                                                                                                                     Page

IDENTITY OF PARTIES AND COUNSEL ........................................................... i

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES ....................................................................................iv

RECORD REFERENCES ......................................................................................... 1

STATEMENT OF THE CASE .................................................................................. 1 

ISSUES PRESENTED............................................................................................... 1 

STATEMENT OF FACTS ........................................................................................ 2 

SUMMARY OF THE ARGUMENT ........................................................................ 4 

ARGUMENT ............................................................................................................. 4 

         A.        Standard of Review. .............................................................................. 4

         B.        Statute of Limitations ............................................................................ 6

         C.        Res Judicata / Collateral Estoppel ......................................................... 8

         D.        Immunity ............................................................................................... 8

                   1.       Prosecutors Are Entitled to Absolute Immunity ......................... 8

                   2.       Counties Enjoy Governmental Immunity ................................. 10

                            a.        Purposes of Sovereign and Governmental
                                      Immunity......................................................................... 11

                            b.        Immunity from Suit is a Component Aspect of
                                      Sovereign/Governmental Immunity ............................... 12

PRAYER .................................................................................................................. 13

CERTIFICATE OF SERVICE ................................................................................ 15



                                                             ii
CERTIFICATE OF COMPLIANCE ....................................................................... 16 




                                                 iii
                                        TABLE OF AUTHORITIES

Cases 
Ben Bolt-Palito Blanco Consol. Ind. Sch. Dist. v. Tex. Political
  Subdivisions Prop. Cas. Self Ins. Fund, 212 S.W.3d 320 (Tex.
  2006) ..................................................................................................................... 11
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) .................................. 13
Boyd v. Biggers, 31 F.3d 279 (5th Cir. 1994) ............................................................. 9
City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ...................................... 10
City of Houston v. Arney, 680 S.W.2d 867 (Tex. App.—
  Houston [1st Dist.] 1984, no writ) ........................................................................ 12
City of Houston v. Williams, 353 S.W.3d 128 (Tex. 2011) ..................................... 11
Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540 (Tex.
 2003) ....................................................................................................................... 6
Disreali v. Rotunda, 489 F.3d 628 (5th Cir. 2007) ..................................................... 9
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238
 (Tex.1985)(cert. denied), 476 U.S. 1159 (1986) .................................................... 5
Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401 (Tex. 1997) ......................................... 12
Francis v. Marshall, 841 S.W.2d 51 (Tex. App. – Houston
  [14th Dist.] 1992, no writ) ...................................................................................... 8
G&H Towing Co. v. Magee, 347 S.W.3d 293 (Tex. 2011) ....................................... 5
Harris County Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d
 838 (Tex. 2009) ..............................................................................................10, 12
Heigel v. Wichita County, 84 Tex. 392, 19 S.W. 562 (1892) .................................. 10
Holmes v. Texas A&M Univ., 145 F.3d 681 (5th Cir. 1988) .................................. 6, 7
Hulsey v. Owens, 63 F.3d 354 (5th Cir. 1994) ............................................................ 9
Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984 (1946) ....................................... 8, 9
Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099 (1985).................................... 10
Lowe v. Tex. Tech Univ., 540 S.W.2d 297 (Tex. 1976) ........................................... 10
Rolling Plains Groundwater Conservation Dist. v. City of
 Aspermont, 353 S.W.3d 756 (Tex. 2011) ............................................................. 10
Rusk State Hospital v. Black, 392 S.W.3d 88 (Tex. 2012) ...................................... 11


                                                              iv
Siegert v. Gilley, 600 U.S. 226, 111 S.Ct. 1789 (1991) ............................................. 9
Simpson v. Simpson, 727 S.W.2d 662 (Tex.App.-Dallas 1987,
  no writ).................................................................................................................... 5
State v. Lueck, 290 S.W.3d 876 (Tex. 2009) ........................................................... 12
Sw. Bell Tel., L. P. v. Harris County Toll Road Auth., 282
  S.W.3d 59 (Tex. 2009) ......................................................................................... 11
Tex. Ass’n of Bus. v. Tex. Air Control, 852 S.W.2d 440 (Tex.
  1993) ....................................................................................................................... 5
Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child
  Care, Inc., 145 S.W.3d 170 (Tex. 2004) .............................................................. 10
Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636 (Tex. 1999) ..................................... 12
Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618 (Tex. 2011) ................................. 11
Tex. Home Mgmt. v. Peavy, 89 S.W.3d 30 (Tex. 2002) .......................................... 11
Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) ............................................. 11
Trans. League, Inc. v. Morgan Express, Inc., 436 S.W.2d 378
  (Tex. Civ. App. – Dallas 1969, writ ref’d n.r.e.) .................................................... 7
Vacek Group, Inc. v. Clark, 95 SW.3d 439 (Tex.App.-Houston
 [1st Dislt.] 2002, no writ) ........................................................................................ 7
Van de Kamp v. Goldstein, 555 U.S. 335, 129 S.Ct. 855 (2009) .............................. 8
Walker v. Packer, 827 S.W.2d 833 (Tex.1992) ......................................................... 4
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex.
 2003) ..................................................................................................................... 11
Statutes 
TEX. CIV. PRAC. & REM. CODE § 101.021 ................................................................ 11
TEX. CIV. PRAC. & REM. CODE § 16.051.................................................................... 6




                                                               v
                              RECORD REFERENCES

      Appellees will make use of the following abbreviations in their Brief:

      Clerk’s Record                            CR page
      Reporter’s Record                         RR page
      Appellant’s Brief                         Brief page

                            STATEMENT OF THE CASE

Description:            Suit for Injunction and “Declaration that the acts and
                        omissions alleged [by Appellant] violated [Appelant’s]
                        Rights under Due Course of Law and Constitutional Laws of
                        the United States.”
Trial Court Judge:      The Honorable Bert Richardson
Trial Court:            22nd Judicial District Court, Hays County, Texas
Trial Court             Final Summary Judgment
Disposition:
Appellant:              Michael W. Carpenter
Appellee:               Wes W. Mau, in his capacity as an Assistant District
                        Attorney for Hays County, Texas, Representing the State of
                        Texas
Action for which        Review of district court’s entry of final judgment granting
Relief is Sought:       Appellee’s plea to the jurisdiction and dismissing the suit.



                                ISSUES PRESENTED

      1.       Did Appellant file suit after the expiration of the applicable statute of
               limitations for an action seeking injunctive and declaratory relief?

      2.       Is Appellant raising issues that have already been raised and decided
               in the context of his criminal case and its various appeals?

      3.       Is Appellee entitled to immunity from suit based on absolute
               immunity or based upon sovereign/governmental immunity enjoyed



                                            1
                by his employer, Hays County, a political subdivision of the State of
                Texas?



                              STATEMENT OF FACTS

      On October 8, 2003 a judgment was rendered pursuant to a jury verdict

finding Appellant, Michael W. Carpenter, guilty of Aggravated Assault with a

Deadly Weapon, a charge which was enhanced to a habitual offender. Appellant

was sentenced by that jury to serve forty years’ confinement. (CR, Vol.1, p.80).

Appellee, Wesley Mau was the State’s Attorney in that prosecution, and Judge

Gary Steel was the District Court Judge presiding over the criminal trial. (CR,

Vol.1, p.80).

      Having lost his original criminal appeal, Carpenter filed his first application

for writ of habeas corpus on or about September 7, 2007. (CR, Vol.1, pp.94-129).

In that application, Appellant made several complaints, including 1) ineffective

assistance of counsel, for several grounds, 2) Brady violation(s) associated with

Appellant’s allegation that a) the jury was not allowed to hear what deals were

made in exchange for testimonies, b) the jury was not informed of prior criminal

history of witnesses. Separately, but on a seemingly related theme, Appellant

complained of “violations of states [sic] duty to all disclosures.” (CR, Vol.1,

p.100). Appellant subsequently complained that his attorney “allowed the State of

By pass [sic] Brady requirements as to allowing [sic] the jury to know that the


                                           2
alleged victim had no credibility, see ‘in limine’ motion by state as to victims [sic]

priors.” (CR, Vol.1, p.100). He further complained “that the testimony by the

alleged victim is suspect and not credible nor trustworthy from a convicted felon.”

(CR, Vol.1, p.101).          The Writ of Habeas Corpus was summarily denied without a

written order. (CR, Vol.1, p. 128).

        Appellant filed his second Application for Writ of Habeas Corpus on or

about June 30, 2011. (CR, Vol.1, pp.130-142). It was also summarily denied.

(CR, Vol.1, p.144).

        Having exhausted his appellate and remedial avenues by way of his criminal

case, Appellant then decided to file (on or about October 6, 2011) the civil action

that is the subject of this appeal, seeking Injunctive and Declaratory relief, and

alleging that Appellee violated his duties under the Texas Code of Criminal

Procedure when he failed to timely comply with a pretrial scheduling order and,

apparently, Brady and its progeny.1 (CR, Vol.1, p.6). Appellee’s civil action

sought “adeclaration [sic] that the acts and omissions described herein violated the

Complainant’s Rights under Due Course of Law” and “a permanent injunction”

requiring Appellee “to comply with Due Course of Law . . . by admitting Abuse of

descretion [sic], Brady violation and neglect of duty.” (CR, Vol.1, p.7).

1
  Judge Gary Steel, the District Court Judge who presided over Appellant’s criminal trial, was also named in
Appellant’s original petition, but a Motion to Dismiss filed by the Attorney General’s Office on behalf of Judge
Steel was granted by Judge Charles Ramsay, the Local Administrative Judge for District Courts in Hays County,
before a visiting judge (Bert Richardson) was appointed to hear defenses asserted by Appellee, Wes Mau. (CR,
Vol.1, p.44).


                                                       3
      The trial court held a non-evidentiary hearing on Appellee’s Motion for

Summary Judgment on October 12, 2012. (RR Vol. 1, p.1). No ruling was made at

that time. (RR Vol. 1; p.41, ll. 21-25; p.42, ll. 1-5). However, on or about January

3, 2013, the Trial Court granted Appellee’s Motion for Summary Judgment. (Brief

Appendix A). Appellant filed his Notice of Appeal on or about January 16, 2013.

(Brief p.1)

                          SUMMARY OF ARGUMENT

      Appellee’s Motion for Summary Judgment was properly granted by the trial

court, based on one or more of the following limitations: a) Appellant’s action for

Declaratory and Injunctive relief was filed after the applicable statutes of limitation

had expired; b) relief sought by Appellant in the present case has already been

asserted, considered and denied by the Court of Criminal Appeals; c) while acting

in his capacity as an officer of the court and an Assistant District Attorney,

Appellee enjoyed absolute immunity from liability and suit; and d) the State of

Texas and subdivisions thereof enjoy governmental immunity, which, in part,

makes it immune from suit.

                                    ARGUMENT

      A.      Standard of Review


      Abuse of Discretion is the standard of review in this case. “[A] clear failure

by the trial court to analyze or apply the law correctly will constitute an abuse of


                                          4
discretion.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). A trial court

abuses it discretion when it acts “without reference to any guiding rules or

principles. Another way of stating the test is whether the act was arbitrary or

unreasonable. The mere fact that a trial judge may decide a matter within his

discretionary authority in a different manner than an appellate judge in a similar

circumstance does not demonstrate that an abuse of discretion has occurred.”

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)(cert.

denied), 476 U.S. 1159 (1986). Conclusions of law shall be upheld on appeal if the

trial court’s judgment can be sustained on any legal theory supported by the

record. See Simpson v. Simpson, 727 S.W.2d 662, 664 (Tex.App.-Dallas 1987, no

writ)

        In the present case, the trial court granted summary judgment in favor of

Appellee, summarily ending a case when only a question of law was involved and

there was no genuine issue of fact. See G&H Towing Co. v. Magee, 347 S.W.3d

293, 296-7 (Tex. 2011).

        While the Court must liberally construe the Appellant’s pleading to

determine the intent of the pleading, the Court cannot liberally construe the

question of law regarding whether the action is time-barred and whether there is

immunity from suit. When a plea to the jurisdiction is based on the plaintiff’s

pleadings, as opposed to plaintiff’s ability to prove jurisdictional facts, the trial



                                         5
court and court of appeals’ review is limited to the four-corners of the plaintiff’s

live pleading. Tex. Ass’n of Bus. v. Tex. Air Control, 852 S.W.2d 440, 446 (Tex.

1993). In addition to timely filing suit, Appellant has the burden of overcoming

Appellee’s affirmative defense of absolute and sovereign immunities and/or of

affirmatively pleading a valid waiver of immunity from suit that vests the trial

court with jurisdiction. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540

(Tex. 2003).

      B.       Statute of Limitations
      Appellee was entitled to summary judgment based on his defense of statute

of limitations. The relevant limitations period for “[e]very action for which there

is no express limitations period” is four years after the date the cause of action

accrues. TEX. CIV. PRAC. & REM. CODE § 16.051. In this case, Appellant is

seeking relief from a criminal prosecution that resulted in a jury’s finding of guilt

approximately eight years prior to the filing of his “Due Course of Law

Complaint.” (CR, Vol.1, p.5). The cause of action in this case accrued, at the latest,

on the date of the rendering of judgment in Appellant’s criminal trial on October 8,

2003. Application of the above-stated limitation establishes that Appellant would

need to have filed suit prior to October 9, 2007, the date on which the four-year

limitation expired.




                                          6
      Appellant makes several claims that, despite their creativity, do not apply to

the present case.   Appellant first argues that the Court in Holmes v. Texas A&M

Univ., 145 F.3d 681 (5th Cir. 1988) limited Appellant “from filing any civil action

while he had legal matters pending.” (Brief p.4). However, the Court’s holding in

Holmes addressed the tolling of a statute of limitations in the context of an

employment claim, not a claim based on alleged civil rights violations in a criminal

trial. See Holmes at 684 (“Even if it was necessary for Holmes to exhaust his

remedies with the EEOC before bringing federal suit, under no circumstances was

Holmes required to exhaust his internal university remedies.”). Appellant also

argues that Vacek Group, Inc. v. Clark, 95 SW.3d 439 (Tex.App.-Houston [1st

Dist.] 2002, no writ) applies, even though the underlying claim in that case was for

professional malpractice and, as happened in Holmes, the statute of limitations was

actually enforced against the Plaintiff. Neither case asserted by Appellant applies

to the underlying issues in the present case. As was pointed out to the trial court in

Appellee’s Motion for Summary Judgment, if the Court wishes to concede that an

actual controversy occurred that would give rise to something more than a

frivolous civil suit, then Appellant cannot overcome that limitation by arguing that

he is bringing action to prevent similar wrongs in the future. (See CR, Vol.1, p.64-

65). (See also Trans. League, Inc. v. Morgan Express, Inc., 436 S.W.2d 378 (Tex.

Civ. App. – Dallas 1969, writ ref’d n.r.e.))(“ we hold here…that the statute does



                                          7
not begin to run against the right to maintain a suit for declaratory judgment until

an actual controversy has occurred, but that when such dispute or controversy does

arise then the cause of action accrues and the statute begins to run.”).

      C.     Res Judicata / Collateral Estoppel
      Alternatively, Appellee was entitled to summary judgment based on his

defense of res judicata/collateral estoppel. A party in a civil suit is subject to

offensive collateral estoppel based on a criminal conviction when (i) the issue at

stake was identical to that in a criminal case; (ii) the issue had been actually

litigated; and (iii) determination of the issue was a critical and necessary part of the

prior judgment. Francis v. Marshall, 841 S.W.2d 51, 54 (Tex. App. – Houston

[14th Dist.] 1992, no writ).

      In the present case, Appellant is attempting to raise issues that he has already

asserted in the context of both Writs of Habeas Corpus, which were denied (CR,

Vol.1, p.128 and p.144). Essentially, Appellant is attempting to bootstrap the issues

raised in his criminal appeals in the context of an action for Injunctive, and more

importantly, Declaratory relief.

      D.     Immunity

             1.     Prosecutors Are Entitled to Absolute Immunity

      It has long been held that criminal prosecutors are absolutely immune from

lawsuits concerning “prosecutorial actions that are ‘intimately associated with the



                                           8
judicial phase of the criminal process.’” Van de Kamp v. Goldstein, 555 U.S. 335,

340-41, 129 S.Ct. 855 (2009)(quoting Imbler v. Pachtman, 424 U.S. 409, 428, 96

S.Ct. 984 (1946)). During the time frame complained of, Appellee acted as an

Assistant District Attorney for Hays County. Appellant’s complaint(s) involve(s)

actions taken in the context of a criminal jury trial being prosecuted by Appellee,

Mau. The decision of whether a criminal prosecutor is entitled to absolute

immunity is (and should have been) a threshold question for the Court. The Court

is to decide, as early in the proceedings as possible whether a prosecutor is entitled

to absolute immunity in his role as an assistant district attorney. See Boyd v.

Biggers, 31 F.3d 279, 284 (5th Cir. 1994). An early finding of absolute immunity

is important because “[o]ne of the purposes of immunity, absolute or qualified, is

to spare a defendant not only unwarranted liability, but unwarranted demands

customarily imposed upon those defending a long drawn out lawsuit.” Siegert v.

Gilley, 600 U.S. 226, 231-33, 111 S.Ct. 1789, 1893 (1991).

      While the Court in Imbler did limit a prosecutor’s absolute immunity to

situations when a prosecutor is acting as an “officer of the Court” (See Imbler at

431), it cannot be denied that Appellee’s actions that have been made the subject of

this suit, all of which occurred during a jury trial, are actions taken as an officer of

the Court. Since absolute immunity is effective against all causes of action, and all

species of relief sought against an individual defendant, whether in damages or in



                                           9
equity, Appellee was entitled to summary judgment. See Disreali v. Rotunda, 489

F.3d 628, 631 (5th Cir. 2007)(noting that absolute immunity denies all remedies to

an individual); See also Hulsey v. Owens, 63 F.3d 354, 356 (5th Cir. 1994)(holding

that absolute immunity is immunity from suit rather than simply a defnse against

liability).

              2.    Counties Enjoy Governmental Immunity

       A claim against a prosecutor acting in his or her official capacity is, in

effect, also an allegation against the governmental entity by which that prosecutor

is employed. See Kentucky v. Graham, 473 U.S. 159, 165-166, 105 S.Ct. 3099

(1985). Hays County enjoys sovereign immunity, which extends to the political

subdivisions of the state, including counties.    Lowe v. Tex. Tech Univ., 540

S.W.2d 297 (Tex. 1976); Heigel v. Wichita County, 84 Tex. 392, 19 S.W. 562, 563

(1892). However, sovereign immunity, as it applies to local governmental entities,

is referred to as governmental immunity.           Rolling Plains Groundwater

Conservation Dist. v. City of Aspermont, 353 S.W.3d 756, 759 (Tex. 2011) (per

curiam); Harris County Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842

(Tex. 2009). While the technical name of the immunity enjoyed is different,

governmental immunity offers counties and other local governmental entities the

same degree of protection from suit as afforded to state entities under sovereign

immunity.     Id.   (“[g]overnmental immunity, like the doctrine of sovereign



                                        10
immunity to which it is appurtenant, involves two issues: whether the State has

consented to suit and whether the State has accepted liability”).

                   a. Purposes of Sovereign and Governmental Immunity

      Sovereign immunity and governmental immunity serve two purposes. The

first purpose is to preclude second guessing of certain governmental actions and

decisions.   See Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care,

Inc., 145 S.W.3d 170, 198 (Tex. 2004); See also City of El Paso v. Heinrich, 284

S.W.3d 366, 371-73 & n.6 (Tex. 2009) (litigation cannot be utilized “to control

state action by imposing liability on the State” (italics in the original)). Second,

the courts recognize that sovereign immunity serves to protect the public treasury.

Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011) *4; Ben

Bolt-Palito Blanco Consol. Ind. Sch. Dist. v. Tex. Political Subdivisions Prop. Cas.

Self Ins. Fund, 212 S.W.3d 320 (Tex. 2006); Wichita Falls State Hosp. v. Taylor,

106 S.W.3d 692, 697 (Tex. 2003). An important purpose of sovereign immunity

and governmental immunity “is pragmatic: to shield the public from the costs and

consequences of improvident actions of their government.”           Tooke v. City of

Mexia, 197 S.W.3d 325, 332 (Tex. 2006); City of Houston v. Williams, 353 S.W.3d

128, 131 (Tex. 2011). In the Rusk State Hospital decision, the Supreme Court

again affirmed that one of the purposes of sovereign immunity and early rulings on

immunity from suit is to avoid the wasting of tax dollars on defending suits,



                                         11
including on discovery, where claims are barred by immunity from suit. Rusk State

Hospital v. Black, 392 S.W.3d 88, 97, 106 (Tex. 2012).

      Considering the purposes of immunity, the Texas Supreme Court has

repeatedly held that whether sovereign/governmental immunity should be waived

properly rests with the legislative branch, not the judicial branch. “As we have

often noted, the Legislature is best positioned to waive or abrogate sovereign

immunity....” Id. (internal quotation and citation omitted). See Tex. Home Mgmt. v.

Peavy, 89 S.W.3d 30, 43 (Tex. 2002); TEX. CIV. PRAC. & REM. CODE § 101.021.

Sw. Bell Tel., L. P. v. Harris County Toll Road Auth., 282 S.W.3d 59, 68 (Tex.

2009) (“[b]ut as we have often noted, the Legislature is best positioned to waive or

abrogate sovereign immunity ‘because this allows the Legislature to protect its

policymaking function”).

                   b. Immunity from Suit is a Component Aspect of

                        Sovereign/Governmental Immunity

      Sovereign immunity protects the State, its agencies, political subdivisions

and officials both from suit and liability. Fed. Sign v. Tex. S. Univ., 951 S.W.2d

401, 405 (Tex. 1997).

      Sovereign immunity embraces two principals: immunity from suit and
      immunity from liability. First, the State retains immunity from suit without
      legislative consent, even if the State’s liability is not disputed. Second, the
      State retains immunity from liability though the Legislature has granted
      consent to the suit.



                                         12
Id. (citations omitted); Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.

1999) (“[i]mmunity from liability and immunity from suit are two distinct

principles”).

State v. Lueck, 290 S.W.3d 876 (Tex. 2009) (“[i]mmunity from suit is a

jurisdictional question of whether the State has expressly consented to suit.…”);

Tomball Reg’l Hosp., 283 S. W.3d at 842. Accordingly, Appellant had and has the

burden of alleging facts that establish a waiver of immunity from suit. See City of

Houston v. Arney, 680 S.W.2d 867 (Tex. App.—Houston [1st Dist.] 1984, no writ).

         Because immunity from suit deprives a trial court of jurisdiction, it can

properly be raised through a plea to the jurisdiction. A plea to the jurisdiction

contests the trial court’s authority to determine the subject matter of a pending suit

or cause of action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.

2000).

                                      PRAYER

      Appellee, Wes W. Mau, in his capacity as an Assistant District Attorney for

Hays County, Texas, Representing the State of Texas, prays that this Court affirm

the final judgment of the trial court granting Summary Judgment in favor of

Appellee and declaring that Appellant, Michael Carpenter, take nothing from his

original petition in this case. (See CR, Vol.1, p.178).




                                          13
Respectfully submitted,

OFFICE OF GENERAL COUNSEL
HAYS COUNTY, TEXAS
111 E. San Antonio Street, Suite 202
San Marcos, Texas 78666
512.393.2219 (telephone)
512.392.6500 (telecopier)


By:    /s/ Mark Kennedy
       MARK D. KENNEDY
       State Bar No. 24032498
       Mark.Kennedy@co.hays.tx.us

       Attorney for Appellee




  14
                         CERTIFICATE OF SERVICE

       I hereby certify that, on the 23rd day of March, 2015, I electronically filed
the foregoing with the Clerk of the Court using the Texas Online eFiling for courts
system and sent a true and correct copy of the foregoing to the following individual
by certified U.S. Mail (#7011 3500 0000 2472 6604):

      Michael Carpenter
      Appellant - Pro Se
      TDCJ# 1201045
      8 O.B. Ellis Unit
      1697 FM 980
      Huntsville, Texas 77343



                                      /s/ Mark Kennedy
                                      Mark D. Kennedy




                                        15
                      CERTIFICATE OF COMPLIANCE

       In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this brief

contains 3,888 words, excluding the portions of the brief exempted by Rule

9.4(i)(1).



                                     /s/ Mark Kennedy
                                     Mark D. Kennedy




                                       16
