                                                                                       ACCEPTED
                                                                                  03-14-00739-CV
                                                                                         4080797
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                              2/9/2015 5:04:47 PM
                                                                                JEFFREY D. KYLE
                                                                                           CLERK
                         Case No. 03-14-00739-CV

                 IN THE THIRD COURT OF APPEALS                    FILED IN
                                                           3rd COURT OF APPEALS
                                                               AUSTIN, TEXAS
                            AUSTIN, TEXAS                  2/9/2015 5:04:47 PM
                                                             JEFFREY D. KYLE
                                                                   Clerk
             EX PARTE ROBERT BURNS SPRINGSTEEN IV,
                           Appellant


            APPELLEE ROSEMARY LEHMBERG’S BRIEF


                                 Respectfully Submitted,

                                 DAVID ESCAMILLA
                                 County Attorney, Travis County
                                 Travis County Attorney’s Office
                                 P.O. Box 1748
                                 Austin, Texas 78767
                                 Telephone: (512) 854-9513
                                 Facsimile: (512) 854-4808
                                 sherine.thomas@traviscountytx.gov
                                 andrew.williams@traviscountytx.gov
                                 pat.kelly@traviscountytx.gov



                                 /s/ Andrew M. Williams
                                 Sherine E. Thomas
                                 State Bar No. 00794734
                                 Andrew M. Williams
                                 State Bar No. 24068345
                                 Patrick M. Kelly
                                 State Bar No. 11228000
                                 ATTORNEYS FOR APPELLEE
DATE: February 6, 2015

                ORAL ARGUMENT NOT REQUESTED

                                    i
                       IDENTITY OF THE PARTIES

Trial Court Cause Number: D-1-GN-14-001847


Robert Burns Springsteen IV,               Rosemary Lehmberg, Travis County
Appellant                                  District Attorney, Appellee

Broadus A. Spivey                          Sherine E. Thomas
Texas Bar No. 00000076                     Texas Bar No. 00794734
LAW OFFICES OF BROADUS A.                  sherine.thomas@traviscountytx.gov
SPIVEY                                     Andrew M. Williams
3303 Northland Drive, Suite 205            Texas Bar No. 24068345
Austin, Texas 78731                        andrew.williams@traviscountytx.gov
bas@spivey-law.com                         Patrick M. Kelly
                                           Texas Bar No. 11228000
James W. Hackney                           pat.kelly@traviscountytx.gov
Texas Bar No. 08671000                     Travis County Attorney’s Office
LAW OFFICES OF JIM HACKNEY                 P. O. Box 1748
5109 McDade Dr.                            Austin, Texas 78767
Austin, TX 78735                           Tel. 512-854-9513
jim@jameshackneylaw.com                    Fax 512-854-4808

Charles F. Baird
Texas Bar No. 00000045
Amber Farrelly
Texas Bar No. 24069671
BAIRD☆FARRELLY CRIMINAL
DEFENSE
2312 Western Trails Blvd Ste. 102-A
Austin, TX 78745
jcfbaird@gmail.com
adfelaw@gmail.com




                                      ii
                                      TABLE OF CONTENTS

IDENTITY OF THE PARTIES ................................................................................ ii

TABLE OF CONTENTS ......................................................................................... iii

INDEX OF AUTHORITIES......................................................................................v

STATEMENT OF THE CASE…………………………………………….. ........... 2

STATEMENT ON ORAL ARGUMENT………………………………… ............. 3

ISSUES PRESENTED...............................................................................................4

STATEMENT OF FACTS ........................................................................................4
  A. Factual Background and Procedural History of Underlying Criminal Matter 4
  B. Procedural History in Request for Ex Parte Declaratory Judgment ................ 6

SUMMARY OF ARGUMENT ...............................................................................10

ARGUMENT AND AUTHORITIES ......................................................................11
  A. The trial court’s subject-matter jurisdiction, or lack thereof, is a question of
     law that is reviewed de novo. ............................................................................ 11
  B. By failing to assert even a single cause of action recognized under Texas
     law, Springsteen failed to trigger the Trial Court’s jurisdiction. .................. 13
     1. ISSUE 1 (Restated): The UDJA does not create an independent cause of
          action or a waiver of immunity as alleged. ............................................15
            a. Appellant fails to establish jurisdiction because the UDJA does not
                create jurisdiction when there is no underlying cause of action. ... 16
            b. As pled, Appellant fails to trigger the trial court’s jurisdiction by
                failing to identify a waiver of immunity. .......................................18
     2. ISSUE 2 (Restated): Appellant complains of a non-justiciable issue that
          renders the court without jurisdiction. ...................................................21
     3. ISSUE 3 (Restated): The Open Courts Provision of the Texas
          Constitution does not provide jurisdiction without a cause of action. .. 25
     4. ISSUE 4 (Restated): The civil trial court has no jurisdiction over
          criminal matters .....................................................................................26
     5. ISSUE 5 (Restated): Appellant cannot establish jurisdiction in state
          court when a federal court has already dismissed his similarly defective
          pleading seeking a declaration of actual innocence...............................27
                                                       iii
CONCLUSION AND PRAYER .............................................................................28

CERTIFICATE OF COMPLIANCE ......................................................................30

CERTIFICATE OF SERVICE ................................................................................31




                                                   iv
                                          INDEX OF AUTHORITIES

CASE LAW

Bland Indep. Sch. Dist. v. Blue, 34 S.W. 3d 547 (Tex. 2000)..................................... 11
Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978) ....... 19
Board of Water Engineers v. City of San Antonio, 283 S.W.2d 722 (Tex. 1955) ...... 22
Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704 (Tex. 2003) ................. 19
City of Dallas v. VSC, LLC, 347 S.W.3d 231 (Tex. 2011) ................................... 21, 22
City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ......................................19
Cloud v. McKinney, 228 S.W.3d 326 (Tex.App.--Austin 2007, no pet.) ................... 19
Combs v. Metropolitan Life Ins. Co., 298 S.W.3d 793 (Tex.App.--Austin 2009, pet.
denied) ......................................................................................................................13
Demouchette v. State, 731 S.W.2d 75 (Tex. Crim. App. 1986).................................. 27
Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009) ......................13
Frasier v. Yanes, 9 S.W.3d 422 (Tex. App. – Austin 1999, no writ) ......................22
First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627 (Tex. 2008) ............................13
Gattis v. Duty, 349 S.W.3d 193 (Tex. App. – Austin 2011, no pet.) .......................... 12
General Motors Corp. v. Bray, 243 S.W.3d 678 (Tex. App. – Austin 2007, no
pet.)...........................................................................................................................13
Gomez v. Pasadena Health Care Management, 246 S.W.3d 306 (Tex.App.--Houston
[14th Dist.] 2008, no pet.) ............................................................................................. 25
In Re Allen, 366 S.W.3d 696 (Tex. 2012).................................................................. 8
In re Thompson, 330 S.W.3d 411 (Tex.App.--Austin 2010, no pet.) ............3, 14, 15
Lone Starr Multi Theaters, Inc. v. State, 922 S.W.2d 295 (Tex.App.--Austin 1996, no
writ.) ....................................................................................................................... 14, 23
Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995)............................................. 25
Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006)................12, 16
Shook v. Walden, 304 S.W.3d 910 (Tex.App.--Austin 2010, pet. denied) .............. 13
Short v. W.T. Carter & Bro., 126 S.W.2d 953 (Tex. 1938) ........................................ 19
Southwest Airlines Co. v. Texas High-Speed Rail Authority, 863 S.W.2d 123
(Tex.App.--Austin 1993, writ denied)................................................................... 14, 22
State v. Epperson, 121 Tex. 80, 42 S.W.2d 228 (Tex. 1931) ..................................19
State v. Malone Serv. Co., 829 S.W.2d 763 (Tex. 1992).........................................19
State v. Margolis, 439 S.W.2d 695 (Tex.App.--Austin 1969, writ ref’d n.r.e.) ... 14, 23
State v. Morales, 869 S. W. 2d 941 (Tex. 1994) ................................................... 17, 26
State v. Oakley, 227 S.W.3d 58 (Tex. 2007) ............................................................... 21
State v. Young, 265 S.W.3d 697 (Tex.App.--Austin 2008, pet. denied)......................
......................................................................................................3, 17, 18, 20, 21, 23


                                                                 v
Springsteen v. State, 2006 Tex. Crim. App. LEXIS 2340 (Tex. Crim. App. May 24,
2006), cert. denied 549 U.S. 1253 (2007) .............................................................4, 5
Springsteen v. Combs, 2013 U.S. Dist. LEXIS 133971 (W.D. Tex. Sept. 19,
2013) ......................................................................................................................7, 8
Tex. Ass’n. of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993)......... 22, 24
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)................. 12
Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636 (Tex. 1999)......................................... 15
Texas Natural Resources Conservation Comm’n v. IT-Davy, 74 S.W.3d 849 (Tex.
2002)....................................................................................................................... 16, 17
Trantham v. Isaaks, 218 S.W. 3D 750 (Tex.App.--Fort Worth 2007, pet. denied) ... 26
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003) ............................ 16
Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007) .................................................... 12
W. D. Haden Co. v. Dodgen, 308 S.W.2d 838 (Tex. 1958) ..............................17, 20

STATUTES CODES AND CONSTITUTION

Tex. Civ. Prac. & Rem. Code §10.001 ........................................................................ 26
Tex. Civ. Prac. & Rem. Code §37.001-.011 ............................................................... 14
Tex. Civ. Prac. & Rem. Code §37.002 ........................................................................ 16
Tex. Civ. Prac. & Rem. Code §37.004 ........................................................................ 16
Tex. Civ. Prac. & Rem. Code §37.006 ........................................................................ 14
Tex. Civ. Prac. & Rem. Code §37.008 ........................................................................ 24
Tex. Civ. Prac. & Rem. Code §103.001 ...................................................... 6, 17, 20, 24
Tex. Civ. Prac. & Rem. Code §103.051(a)(2)............................................................... 6
Tex. Const. art. I, §13................................................................................................... 25
Tex. Code Crim. Proc. Art. 12.01(1)(A) ..................................................................... 27
Tex. R. App. P. 45.......................................................................................................... 8




                                                                vi
                           Case No. 03-14-00739-CV

                    IN THE THIRD COURT OF APPEALS

                                AUSTIN, TEXAS

               EX PARTE ROBERT BURNS SPRINGSTEEN IV,
                             Appellant


              APPELLEE ROSEMARY LEHMBERG’S BRIEF


TO THE HONORABLE COURT:

      Appellee, Travis County District Attorney, Rosemary Lehmberg, moves the

Court to affirm the judgment of the Trial Court in the above styled and numbered

appeal, and to grant Appellee judgment for costs.




323509-1                                 1
                          STATEMENT OF THE CASE

      On February 19, 2014, in his fourth attempt to recover money, Appellant

filed his First Amended Petition for Declaratory Judgment in Bexar County, Texas,

asking the Court to declare him “actually innocent”. Supplemental Clerk’s Record

(“S.C.R.”) 135-147. In his First Amended Petition, Springsteen added “the District

Attorney of Travis County, Texas, Rosemary Lehmberg, is an ‘interested party’,

and as such should be served with process and notice to appear.’” S.C.R. 135.

Subsequently, on May 9, 2014, Appellant filed his Second Amended Petition for

Declaratory Judgment requesting a declaration of actual innocence and maintained

the District Attorney Lehmberg as an “interested party”. S.C.R. 224-237. On May

23, 2014, the Bexar County Court granted Travis County District Attorney

Lehmberg’s Motion to Transfer Venue to Travis County. C.R. 64.

      On September 25, 2014, after transfer of venue to Travis County, Appellant

filed his Third Amended Petition for Declaratory Judgment which also sought a

declaration of actual innocence. He continued to name District Attorney Lehmberg

as an “interested party”. C.R. 419-432. After a hearing and on October 16, 2014,

the Travis County District Court granted Travis County District Attorney

Lehmberg’s Plea to the Jurisdiction and dismissed the case with prejudice.

Appellant appeals the dismissal for lack of jurisdiction.




323509-1                                  2
                      STATEMENT ON ORAL ARGUMENT

       Appellant does not request oral argument because the controlling issues of

jurisdiction, declaratory judgment, statutory construction and sovereign immunity

under the Tim Cole Act have been decided by this Court1 and the Texas Supreme

Court. The relevant facts and legal arguments are adequately presented in the

record and the briefs, given this appeal challenges dismissal on jurisdictional

grounds previously raised to the trial court. For the foregoing reasons, oral

argument would not significantly aid the court in its decision.

       Should the Court grant argument in response to Appellant Springsteen’s

request, Appellee District Attorney Lehmberg does not waive her right to present

argument before the Court and respectfully requests an opportunity to articulate her

responses to the Court.




1
 State v. Young, 265 S.W.3d 697 (Tex.App.--Austin 2008, pet. denied);In re Thompson, 330
S.W.3d 411 (Tex. App. Austin 2010, no pet.)


323509-1                                     3
                              ISSUES PRESENTED

       The Trial Court properly granted Appellee’s Plea to the Jurisdiction because

Appellant failed to assert even a single cause of action recognized under Texas

law.

                           STATEMENT OF FACTS

       Ex Parte Robert Burns Springsteen, IV, Appellant, brought this case as an

“ex parte declaratory judgment” claim, asking the trial court for a finding of

"actual innocence" in order to receive compensation for time served in Texas state

prison, pursuant to Texas Civil Practice & Remedies Code §103. He named

District Attorney Rosemary Lehmberg, Appellee, as an “interested party” but not a

defendant.

A.     Factual Background and Procedural History of Underlying Criminal
       Matter

       This case stems from Springsteen’s capital murder conviction related to

what have become known as the “Yogurt Shop Murders.” Ap. Br. at p. 10. In

brief, late in the evening of December 6, 1991, four young women were sexually

assaulted and murdered in Austin, Texas, at an “I Can't Believe It’s Yogurt”

business. Springsteen v. State, 2006 Tex. Crim. App. LEXIS 2340 (Tex. Crim.

App. May 24, 2006), cert. denied 549 U.S. 1253 (2007)(citation omitted).

Springsteen, as well as others, was convicted of the crimes and sentenced to death.

Id. On June 22, 2005, Texas Governor Rick Perry commuted Springsteen’s death

323509-1                                 4
sentence to life in prison. Id. On May 24, 2006, the Texas Court of Criminal

Appeals reversed Springsteen’s capital murder conviction, and remanded the

matter to the district court for a new trial. Id. The remand was based upon the

finding that the admission of co-defendant Michael Scott’s confession, which

implicated Springsteen, violated the Confrontation Clause of the U.S. Constitution.

Id. The Court further found that sufficient evidence was presented at the trial court

to support the conviction, such that Springsteen’s re-trial would not violate the

Double Jeopardy or Due Process Clauses of the Constitution. Id.

      After remand, on April 17, 2008, evidence was presented to the trial court

showing that new DNA testing proved that none of the DNA samples found at the

crime scene and on the victims matched Springsteen. C.R. 435. On June 24, 2009,

Springsteen and a co-defendant were released from jail on bond pending their

upcoming trials. Id. On October 28, 2009, the Travis County District Attorney filed

a Motion for Dismissal, requesting that the charges be dismissed, as she was not

prepared to go to trial on the case because law enforcement was still investigating

matters raised by the DNA testing, and the trial court was unwilling to further

continue the re-trial. Id. The trial court granted the motion and dismissed all

charges against Springsteen.



///



323509-1                                 5
B.    Procedural History of Springsteen’s Numerous Attempts to Recover
      Compensation Pursuant to the Tim Cole Act

      The Tim Cole Act (The Act) provides compensation for certain individuals

who were wrongfully imprisoned and who have received a full pardon or habeas

corpus relief. Tex. Civ. Prac. & Rem. Code §103. The legislature set out specific

requirements and procedures for applications under the act. Id.

      1) Springsteen’s first attempt for compensation was denied by Comptroller
         Combs in December 2012 for failure to meet statutory requirements for
         compensation.

      On October 23, 2012, Springsteen made application to the Honorable Susan

Combs, Texas Comptroller of Public Accounts, for compensation for being

wrongfully imprisoned. An application under § 103.001 requires that the applicant

include “a verified copy of the pardon, court order, motion to dismiss, and

affidavit, as applicable, justifying the application for compensation.” Tex. Civ.

Prac. & Rem. Code 103.051(a)(2). On December 13, 2012, Combs denied

Springsteen's application stating that Springsteen’s application “did not include a

pardon based on innocence . . . did not include a habeas corpus order that met the

actual innocence requirement . . . did not include a court order habeas corpus . . .

[and] the required statements from the State’s prosecuting attorney.” C.R.380.



///




323509-1                                 6
      2) Springsteen’s second attempt for compensation was denied by
         Comptroller Combs in February 2013 for failure to meet statutory
         requirements for compensation.

      On December 21, 2012, Springsteen again requested compensation from the

Comptroller, and on February 14, 2013, Combs once again denied the application

for the same deficiencies previously identified. Specifically, Springsteen once

again failed to submit adequate documentation demonstrating eligibility for

compensation as required by the statute. Springsteen v. Combs, 2013 U.S. Dist.

LEXIS 133971, 4 (W.D. Tex. Sept. 19, 2013, no writ) (citing Complaint Ex. C.).

C.R. 42.

      3) Springsteen’s third attempt for compensation was framed as federal
         court petition for declaration of actual innocence and mandamus, which
         was dismissed, in part, because of his failure to meet the statutory
         mechanisms for recovery.

      On May 23, 2013, Springsteen first sought a declaration of actual innocence

for the purpose of qualifying for compensation under the Tim Cole Act in Federal

District Court in the Western District of Texas, Austin Division. Springsteen v.

Combs, 2013 U.S. Dist. LEXIS 133971 (W.D. Tex. Sept. 19, 2013). Appellant

named Texas State Comptroller Susan Combs as a defendant in that declaratory

judgment petition. The court dismissed the suit on November 6, 2013, holding that

Defendant Comptroller Combs was entitled to eleventh amendment immunity. Id.

Further, the court held that the federal court does not have mandamus jurisdiction

over a state official, but that Texas law vested jurisdiction for mandamus actions

323509-1                                7
under The Act in the Texas Supreme Court. Id. The court then questioned why

Springsteen did not request a writ of mandamus from the Texas Supreme Court

when there is clearly jurisdiction to make that request to that court. 2 Id. The court

further held that a declaratory judgment would not give Appellant the right to

recover under the Tim Cole Act because the statute does not allow for recovery

based on such a ruling. Id. Thus, this issue presented was not justiciable as the

court lacked the authority to redress the alleged wrong asserted therein. Id.

       4) Springsteen’s fourth attempt for recovery of compensation was filed in
          state court as an ex parte declaratory judgment and it was dismissed for
          lack of jurisdiction.

       Despite the federal court’s ruling instructing him of the law, Appellant

continued to attempt to circumvent the existing law and to ignore the due process

available to him. Rather than filing an original mandamus action to the Texas

Supreme Court, Appellant instead engaged in legal fiction, an ex parte declaratory

judgment of actual innocence. 3 On December 10, 2013, in a blatant attempt at

forum shopping outside of Travis County, Appellant filed his Original Petition for

2
  Citing In Re Allen, 366 S.W.3d 696, 701 (Tex. 2012) and answering its own musing with, “In
all likelihood, he did not do so because he is aware that he cannot meet the requirements of the
statute until he obtains a finding of actual innocence in a habeas proceeding, or receives some
sort of habeas relief, along with a dismissal of the charges based on a motion to dismiss in which
the prosecutor states the she believes he is actually innocent of the crimes.” Springsteen v.
Combs at 16-17.
3
  If the court of appeals determines that an appeal is frivolous, it may on motion of any party or
on its own initiative, after notice and a reasonable opportunity for response award each
prevailing party just damages. In determining whether to award damages, the court must not
consider any matter that does not appear in the record, briefs, or other papers filed in the court of
appeals. Tex. R. App. P. 45


323509-1                                         8
Declaratory Judgment in Bexar County, Texas, asking the Court to declare him

“actually innocent” of crimes he alleges he did not commit and stating, “This is an

Ex Parte proceeding, and thus there is no ‘adverse party.’” Appellant’s Original

Petition for Declaratory Judgment. C.R. 3. However, in accord with the Uniform

Declaratory Judgments Act (UDJA) Appellant stated the “State of Texas may have

an interest in the proceeding, so a copy of the filed petition will be forwarded to the

Attorney General of Texas.” C.R. 57.

      On February 19, 2014, Appellant filed his First Amended Petition for

Declaratory Judgment in Bexar County, Texas, again asking the Court to declare

him “actually innocent.” Supplemental Clerk’s Record (“S.C.R.”) 135-147. In his

First Amended Petition, Appellant added “the District Attorney of Travis County,

Texas, Rosemary Lehmberg, is an interested party, and as such should be served

with process and notice to appear.” S.C.R. 135. Subsequently, on May 9, 2014,

Appellant filed his Second Amended Petition for Declaratory Judgment requesting

a declaration of actual innocence and maintained the District Attorney Lehmberg

as an interested party. S.C.R. 224-237. On May 23, 2014, the Bexar County Court

granted Travis County District Attorney Lehmberg’s Motion to Transfer Venue to

Travis County. C.R. 64.

      On September 25, 2014, after transfer of venue to Travis County, Appellant

filed his Third Amended Petition for Declaratory Judgment which also sought a



323509-1                                  9
declaration of actual innocence. He continued to name District Attorney Lehmberg

as an interested party. C.R. 419-432. After a hearing and on October 16, 2014, the

Travis County District Court granted Travis County District Attorney Lehmberg’s

Plea to the Jurisdiction and dismissed the case with prejudice. Appellant appeals

the dismissal for lack of jurisdiction, taking a fifth bite at the apple.

                           SUMMARY OF ARGUMENT

      Appellant Springsteen attempts to create a never before recognized

mechanism for recovery. He asks this Court to ignore existing law, trample the

authority expressly given to District Attorney’s Office, and impede upon the

criminal justice process. This Court should affirm the trial court’s dismissal of

Appellant’s ex parte declaratory judgment because the trial court correctly rejected

Appellant’s invitation to accept a series of legal fictions. Appellant Springsteen’s

pleading fails to demonstrate jurisdiction in that the UDJA does not contemplate ex

parte proceedings and the Appellant wholly fails to assert a valid cause of action.

In response to Appellant’s assertions otherwise, Appellee District Attorney

Lehmberg argues the following:

      First, the trial court’s dismissal should be affirmed because a) the UDJA

does not create jurisdiction where there is none and b) the UDJA does not waive

immunity for actions that do not challenge the constitutionality of a statue but

instead seek to encroach upon an official’s discretionary duties.



323509-1                                    10
       Second, the trial court correctly dismissed the case because there is no

justiciable issue when there are no adverse parties and the court’s ruling would not

resolve a dispute.

       Third, the dismissal should be affirmed because the Open Courts provision

of the Texas Constitution does not apply where the Appellant lacks a well-defined

cause of action under common law.

       Fourth, the trial court’s dismissal should be affirmed because no Texas court

has subject-matter jurisdiction to use a civil remedy and proceeding to obviate an

action that can only be resolved under penal law, such as the indictment,

conviction, punishment or a declaration of innocence for capital murder.

       Fifth, the trial court correctly dismissed Appellant’s claim because collateral

estoppel, or issue preclusion, bars the re-litigation of issues already determined in a

prior suit.

       For the foregoing reasons, the trial court lacked jurisdiction and properly

dismissed this case. Appellee requests that this Court affirm the Trial Court’s order

dismissing Springsteen’s claims for lack of jurisdiction.

                       ARGUMENT AND AUTHORITIES

A.     The trial court’s subject-matter jurisdiction, or lack thereof, is a
       question of law that is reviewed de novo.

       A plea to the jurisdiction is a dilatory plea that challenges the trial court’s

authority to determine the subject matter of a specific cause of action. See Bland

323509-1                                  11
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000). Sovereign immunity

from suit deprives a court of subject-matter jurisdiction and therefore is properly

asserted in a plea to the jurisdiction. Reata Constr. Corp. v. City of Dallas, 197

S.W.3d 371, 374 (Tex. 2006). The ultimate question of whether a trial court has

subject-matter jurisdiction is a question of law that is reviewed de novo. Westbrook

v. Penley, 231 S.W.3d 389, 394 (Tex. 2007).


      When, the plea to the jurisdiction challenges the pleadings, the pleadings are

construed liberally in favor of the plaintiff, and all allegations are accepted as true,

unless negated by sufficient evidence. Texas Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226-27 (Tex. 2004); Gattis v. Duty, 349 S.W.3d 193, 200-01

(Tex.App.--Austin 2011, no pet.) (“Our ultimate inquiry is whether the plaintiff’s

pled and un-negated facts, taken as true . . . affirmatively demonstrate a claim or

claims within the trial court's subject matter jurisdiction.”). If the pleadings do not

contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction

but do not affirmatively demonstrate an incurable defect in jurisdiction, the

plaintiff should be afforded the opportunity to amend his pleadings. Miranda, 133

S.W.3d at 226-27. However, if the pleadings affirmatively negate the existence of

jurisdiction, then a plea to the jurisdiction should be granted without allowing the

plaintiff an opportunity to amend his pleadings. Id.




323509-1                                  12
      When jurisdictional issues turn on the interpretation of statutes, which itself

is a question of law, decisions are reviewed de novo. See First Am. Title Ins. Co. v.

Combs, 258 S.W.3d 627, 631 (Tex. 2008). When construing a statute, the primary

objective is to ascertain and give effect to the legislature’s intent. Id. at 631-32. In

determining legislative intent, the court first considers the plain language of the

statute. General Motors Corp. v. Bray, 243 S.W.3d 678, 685 (Tex.App.--Austin

2007, no pet.). When statutory text is clear, it is determinative of legislative intent,

unless enforcing the plain meaning of the statute’s words would produce an absurd

result. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009).

Only when the statutory text is ambiguous should the court “resort to rules of

construction or extrinsic aids.” Shook v. Walden, 304 S.W.3d 910, 917 (Tex.App.--

Austin 2010, pet. denied) (internal quotations omitted); see also, Combs v.

Metropolitan Life Ins. Co., 298 S.W.3d 793, 796-97 (Tex.App.--Austin 2009, pet.

denied).

B.    By failing to assert even a single cause of action recognized under Texas
      law, Springsteen failed to trigger the Trial Court’s jurisdiction.

      Appellant asks the Court to accept a series of legal fictions in order to

circumvent existing law and create jurisdiction where there is none. Most recently,

he filed an “Ex Parte Declaratory Judgment.” Appellant argues that sovereign

immunity is not implicated because he has not brought suit against a political




323509-1                                  13
subdivision of the state, insisting that there is no named defendant, but only an

interested party. Appellant’s brief p. 14.

      However, any authority a trial court has to grant declaratory relief would

stem from the Uniform Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code

§§ 37.001-.011, which does not contemplate ex parte proceedings. In re

Thompson, 330 S.W.3d 411, 413. (Tex.App.--Austin 2010, no pet.). To the

contrary, the UDJA requires that all interested persons must be made parties and

states that a declaration does not prejudice the rights of a non-party. Id.; Tex. Civ.

Prac. & Rem. Code 37.006. If there is no adverse party, or proper parties have not

been named, the judgment amounts to no more than an advisory opinion, which a

court does not have the power to give. Southwest Airlines v. Texas High-Speed Rail

Auth., 863 S.W.2d 123, 125 (Tex. App.--Austin 1993, writ denied); see also, State

v. Margolis, 439 S.W.2d 695, 698 (Tex. Civ. App.--Austin 1969, writ ref’d n.r.e.)

(suit for declaratory relief against attorney general dismissed for want of

jurisdiction because no showing attorney general had enforced anti-trust laws).

Lone Starr Multi Theaters, Inc. v. State, 922 S.W.2d 295, 297-8 (Tex.App.--Austin

1996, no writ).

      When a party is excluded, the declaratory judgment case is dismissed for

lack of jurisdiction. See Lone Starr, 922 S.W.2d at 298 (case dismissed for lack of

jurisdiction when appropriate county and district attorneys were not named in the



323509-1                                     14
action). Furthermore, a declaration judgment ruling that conflicts with a criminal

courts ruling would necessarily require the state’s prosecutor be named as a party.

In re Thompson, 330 S.W.3d at 416. Here, should Appellant prevail in obtaining a

declaration of actual innocence, that declaration would encroach on Travis County

District Attorney Lehmberg’s prosecutorial discretion. Thus, she should be

properly named as a defendant.

      Assuming, arguendo, the court liberally construes the Appellant’s pleadings

as properly naming and noticing District Attorney Lehmberg as a party, Appellee

asserts the following arguments which support the trial court’s dismissal and

demonstrate that the jurisdictional defects could not be cured by repleading:

      1.     ISSUE 1 (Restated)
             The UDJA does not create an independent cause of action or a
             waiver of immunity as alleged.

      The trial court’s dismissal should be affirmed because a) the UDJA does not

create jurisdiction where there is none and b) the UDJA does not waive immunity

for actions that do not challenge the constitutionality of a statue but instead seek to

encroach upon an official’s discretionary duties.

      Sovereign immunity encompasses immunity from suit, which bars a suit

unless the governmental entity has consented, and immunity from liability, which

protects the entity from judgments even if it has consented to the suit. Texas Dep’t

of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). “Political subdivisions of the



323509-1                                  15
state . . . are entitled to such immunity-- referred to as governmental immunity--

unless it has been waived.” Reata Construction Corp. v. City of Dallas, 197

S.W.3d 371, 374 (Tex. 2006)(citations omitted); see also, Wichita Falls State

Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). The Texas Supreme Court

has said repeatedly that the Legislature is in the best position to waive or abrogate

immunity, “because this allows the Legislature to protect its policymaking

function.” Texas Natural Resources Conservation Comm’n v. IT-Davy, 74 S.W.3d

849 (Tex. 2002) (citations omitted).

      a) Appellant fails to establish jurisdiction because the UDJA does not
         create jurisdiction when there is no underlying cause of action.

      The dismissal should be affirmed because the Appellant attempts to cloak a

claim which would be barred by sovereign immunity in the guise of a declaratory

judgment as an effort to circumvent that immunity.

      The UDJA is a remedial statute designed “to settle and to afford relief from

uncertainty and insecurity with respect to rights, status, and other legal relations.”

Tex. Civ. Prac. & Rem. Code § 37.002(b). It provides: “A person . . . whose rights,

status, or other legal relations are affected by a statute, municipal ordinance,

contract, or franchise may have determined any question of construction or validity

arising under the . . . statute, ordinance, contract, or franchise and obtain a

declaration of rights, status, or other legal relations thereunder.” Tex. Civ. Prac. &

Rem. Code §37.004(a). The Act, however, does not enlarge a trial court’s

323509-1                                 16
jurisdiction, and a litigant’s request for declaratory relief does not alter a suit's

underlying nature. IT-Davy, 74 S.W.3d at 855; State v. Morales, 869 S.W.2d 941,

947 (Tex. 1994). It is well settled that “private parties cannot circumvent the

State’s sovereign immunity from suit by characterizing a suit for money damages .

. . as a declaratory-judgment claim.” IT-Davy, 74 S.W.3d at 856 (citing W. D.

Haden Co. v. Dodgen, 308 S.W.2d 838, 842 (Tex. 1958)).

       Here, Appellant makes it clear that he seeks a declaration of actual

innocence so that he may obtain compensation under the Tex. Civ. Prac. & Rem.

Code §103.001. Appellant admits his claim seeks money damages for wrongful

imprisonment when he states, “If the trial court were to grant Appellant’s request

for a hearing on a declaratory judgment and therefore later require the Comptroller

to issue payment to Appellant, the State’s immunity would be waived then as

well.” App. Brief p. 16.

       However, this Court issued a salient opinion in State v. Young. State v.

Young, 265 S.W.3d 697 (Tex. App.--Austin 2008, pet. denied). Young, like

Appellant Springsteen, had his conviction overturned on direct appeal 4 and sought

compensation under The Act. This Court held that such an individual who did not

4 The distinction between Springsteen’s acquittal and Young’s acquittal is that Young’s
conviction was overturned when the appellate court determined, "the evidence is, due to the
application of statutes, legally insufficient to support a conviction." Young, 265 S.W.3d 697,
704. Appellant’s conviction was overturned when the court held, “the evidence of [Appellant’s]
guilt was legally sufficient” to support the conviction and explicitly stated that neither the
Double Jeopardy nor Due Process Clause prohibits the retrial of Appellant for the crime of
capital murder. Springsteen v. State, No. AP-74,223 (May 24, 2006) (C.R. 11-25).


323509-1                                     17
obtain relief from his criminal conviction based on “actual innocence,” much less

obtain habeas corpus relief from his conviction on that ground, had not “been

granted relief on the basis of actual innocence for the crime for which the person

was sentenced,” as the legislature used that phrase in chapter 103 of the civil

practice and remedies code. Id. Accordingly, sovereign immunity barred Young’s

claims for damages from wrongful imprisonment. Id. at 708.

      Likewise, sovereign immunity bars Appellant’s claims for damages from

wrongful imprisonment. Characterizing the claim as a declaratory judgment does

alter the suits underlying nature and cannot circumvent immunity. Thus, the trial

court’s dismissal should be affirmed.

      b.     As pled, Appellant fails to trigger the trial court’s jurisdiction by
             failing to identify a waiver of immunity.

      The trial court correctly dismissed this case. Appellant’s claims are barred

by sovereign immunity because only declaratory judgment claims that seek an

injunction that falls within the ultra vires exception waive sovereign immunity. In

contrast, Appellant’s request for naked declarations of rights that would encroach

upon District Attorney Lehmberg’s prosecutorial discretion does not waive

immunity.

      The doctrine of sovereign immunity and its dual protections also extend to

protect a government employee, including constitutional officers such as District

Attorney Lehmberg, acting in their official capacity, pursuant to their constitutional

323509-1                                 18
and statutory authorization. Cloud v. McKinney, 228 S.W.3d 326 (Tex.App.--

Austin 2007, no pet.); Short v. W.T. Carter & Bro., 126 S.W.2d 953 (Tex. 1938).

“[B]oth Texas and federal courts recognize that prosecutors have broad discretion

in deciding which cases to prosecute. Thus, ‘[i]f the prosecutor has probable cause

to believe that the accused committed an offense defined by statute, the decision

whether to prosecute and what charge to file generally rests entirely within his or

her discretion.’” State v. Malone Serv. Co., 829 S.W.2d 763, 769 (Tex. 1992) and

Bordenkircher v. Hayes, 434 U.S. 357, 364, (1978).

       The Texas Supreme Court contemplates the intersection of sovereign

immunity, discretionary acts, and declaratory judgment in the City of El Paso v.

Heinrich. City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Heinrich

explains:

       Suits to require state officials to comply with statutory or
       constitutional provisions are not prohibited by sovereign immunity,
       even if a declaration to that effect compels the payment of money. To
       fall within this ultra vires exception, a suit must not complain of a
       government officer’s exercise of discretion, but rather must allege,
       and ultimately prove, that the officer acted without legal authority or
       failed to perform a purely ministerial act . . . . Thus, ultra vires suits
       do not attempt to exert control over the state--they attempt to reassert
       the control of the state. Stated another way, these suits do not seek to
       alter government policy but rather to enforce existing policy.

Heinrich at 372 5.


5
 The Court compared State v. Epperson, 121 Tex. 80, 42 S.W.2d 228, 231 (Tex. 1931) (“the tax
collector’s duty . . . is purely ministerial”) with Catalina Dev., Inc. v. County of El Paso, 121


323509-1                                       19
       Here, Appellant argues that he is not challenging the constitutionality of a

statute, but rather is seeking “affirmation of his rights under the statute.” App. Br.

p. 16. He goes on to state that, under one theory, he is seeking compensation under

Tex. Civ. Prac. & Rem. Code 103.001(a)(2)(C). This section requires that the

state’s attorney declare under oath that “no credible evidence exists that inculpate

the defendant . . . [and] that [she] believes that the defendant is actually innocent of

the crime for which the person was sentenced.” Tex. Civ. Prac. & Rem Code

103.001(a)(2)(C)(ii).

       In this case, District Attorney Lehmberg dismissed the pending court case,

but did so pending further investigation. Appellant complains that district attorneys

could frustrate the statute and “circumvent any possibility of a similarly situated

and wrongfully imprisoned person . . . by releasing any possible applicants pending

‘further investigation’.” App. Br. P. 26.

       Appellant further argues that he should not be precluded from compensation

simply because he obtained relief on direct appeal and can no longer pursue habeas

corpus relief. Despite this seemingly harsh reality, this Court recognized in Young

that, “All things being equal, sovereign immunity would bar a suit against the State

for damages caused by wrongful imprisonment. Consequently, at common law,

S.W.3d 704, 706 (Tex. 2003) (newly elected commissioners court immune from suit where it
“acted within its discretion to protect the perceived interests of the public” in rejecting contract
approved by predecessor), and W. D. Haden Co. v. Dodgen, 308 S.W.2d 838 at 842 (Tex. 1958)
(suit seeking “enforcement of contract rights” barred by immunity in the absence of any
“statutory provision governing or limiting the manner of sale”).


323509-1                                        20
claimants could recover ‘nothing from a state that wrongfully imprisoned them.’”

Young, 265 S.W.3d at 703 citing State v. Oakley 227 S.W.3d 58, 62 (Tex. 2007)

(citations omitted). This Court explained:

             . . . [W]e must conclude that the legislature intended to provide a
      remedy solely to the wrongfully convicted who cannot, for whatever reason,
      obtain relief through available direct appeals. It is not absurd to suggest that
      the legislature would have considered such claimants-who have sometimes
      languished in prison for decades--as uniquely deserving of damages from the
      State, while perceiving a less-compelling interest among those who succeed
      in obtaining relief from their convictions on direct appeal.

Young, 265 S.W.3d at 707.

      Thus, the trial court lacked jurisdiction over this ex parte declaratory

judgment the UDJA does not create jurisdiction where there is no underlying cause

of action, nor does it create jurisdiction to challenge the discretionary acts of an

official. The dismissal was properly issued and should be affirmed.

      2.     ISSUE 2 (Restated)
             Appellant complains of a non-justiciable issue that renders the
             court without jurisdiction.

      The trial court’s dismissal should be affirmed because there is no justiciable

issue when there is no controversy between parties and relief sought is highly

speculative and theoretical.

      A declaratory judgment action may only lie where there is a substantial

controversy involving a genuine conflict of tangible interests. City of Dallas v.

VSC, LLC, 347 S.W.3d 231, 240 (Tex. 2011) (quotation marks omitted). The



323509-1                                 21
Supreme Court holds that there can be no declaratory judgment action where a

declaration would not settle an actual controversy between parties, or where “the

relief sought is highly speculative and theoretical.” Id. (emphasis added).

Otherwise the declaration will act as nothing more than an advisory opinion and

Texas courts lack the legal authority to issue advisory opinions. Texas Ass’n of

Business v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Board of

Water Engineers v. city of San Antonio, 283 S.W.2d 722, 724 (Tex. 1955), and

Southwest Airlines Co. v. Texas High-Speed Rail Authority, 863 S.W.2d 123, 125

(Tex.App.--Austin 1993, writ denied).

       In the instance case, Appellant maintains that there is no adverse party in

this case, having named no defendants. App. Br. P. 14. Further, Appellant does not

allege an actual legal dispute or controversy that a declaratory judgment of “actual

innocence” would solve. Even if the court issued a declaration of actual innocence,

such a declaration would not qualify the appellant for compensation under The

Act.

       Furthermore, a claimant seeking a declaratory action must already have a

cause of action at common law or under some statutory or constitutional provision.

Frasier v. Yanes, 9 S.W.3d 422, 427 (Tex.App.--Austin 1999, no writ). A

declaratory judgment declares the rights and duties or the status of parties in a

justiciable controversy. This Court has already determined that only those who



323509-1                                22
meet the specific requirements of “actual innocence” set out in The Act have a

claim that falls within the waiver of immunity provided by The Act. Young, 265

S.W.3d 697. Without a waiver of immunity, there is no right of action. Thus,

Appellant does not have a valid cause of action under Chapter 37 of the Civil

Practice and Remedies Code.

      Further, the notion that courts are without the power to issue advisory

opinions is well settled under Texas law. In declaratory judgment actions, an

essential component of this limitation on courts’ authority is the requirement that

the defendant have the authority to enforce the statute, provision, or action in

question. Lone Starr Multi Theaters, Inc. v. State, 922 S.W.2d 295, 297-298

(Tex.App.--Austin 1996, no writ.) and State v. Margolis, 439 S.W.2d 695, 698

(Tex.App.--Austin 1969, writ ref’d n.r.e.). When such a party is not the named

defendant, as is the case in this matter, the court must dismiss the petition for

declaratory judgment for want of jurisdiction. Id. Because the Travis County

District Attorney has no authority to grant Appellant a pardon, habeas corpus, a

finding of “actual innocence,” or compensation under The Act, the trial court

lacked jurisdiction in this case, even if Appellee were actually named as a

defendant.

      In Appellant’s Second Amended Petition for Declaratory Judgment, he adds

that he is seeking “a declaratory judgment from this court affirming that Appellant



323509-1                                23
is qualified to receive compensation under C.P.R.C. § 103.001.” Appellant’s

Second Amended Petition for Declaratory Judgment pg. 11, ¶ 6.6. S.C.R. 234.

Appellant continues to assert this declaration in Appellant’s Third Amended

Petition for Declaratory Judgment pg. 11, ¶7.5. C.R. 429. To qualify for

compensation, an applicant must proceed and qualify under The Act itself.6 The

UDJA cannot be used to bootstrap an attempt to qualify to receive compensation

under The Act because a declaratory judgment is not included as an order

qualifying one to receive compensation under the statute. As Section 37.008 of the

UDJA states, “The court may refuse to render or enter a declaratory judgment or

decree if the judgment or decree would not terminate the uncertainty or

controversy giving rise to the proceeding.” Tex. Civ. Prac. & Rem. Code §37.008;

See also, Texas Ass’n of Business, 852 S.W.2D at 446 (court may refuse to allow a

declaratory judgment action where any judgment would purely be advisory and

non-binding in any manner). Thus, this Court should not entertain Appellant’s

most recent attempt at these legal fictions but should affirm the dismissal of this

case.




///

6
  “Whether he is entitled to such compensation under Texas law is a question first for the Texas Comptroller, and
then for the Texas Supreme Court.” S.C.R 304-305.


323509-1                                               24
      3.     ISSUE 3 (Restated)
             The Open Courts Provision of the Texas Constitution does not
             provide jurisdiction without a cause of action.

      Appellant pleads that he has brought his UDJA claim pursuant to Article 1,

Section 13, (hereafter “Open Courts Provision”) of the Texas Constitution and that

the Open Courts Provision ensures that, “[e]xcessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishment inflicted. All courts

shall be open, and every person for an injury done him, in his lands, goods, person,

or reputation, shall have remedy by due course of law.” Tex. Const. art. I, § 13.

      While this may be a well-stated proposition, case law does not support this

application of the Open Courts Provision. This provision “acts as an additional due

process guarantee granted in the Texas Constitution, and prohibits the legislature

from arbitrarily withdrawing all legal remedies from anyone having a well-defined

cause of action under the common law.” Gomez v. Pasadena Health Care

Management, 246 S.W.3d 306, 312 (Tex.App.--Houston [14th Dist.] 2008, no

pet.)(emphasis added). Further, “[t]he ‘Open Courts’ provision of the Texas

Constitution applies only to statutory restrictions on cognizable common law

causes of action” not to legal fictions, no matter how creative. Peeler v. Hughes &

Luce, 909 S.W.2d 494, 499 (Tex. 1995)(emphasis added).




323509-1                                 25
      4.     ISSUE 4 (Restated)
             The civil trial court has no jurisdiction over criminal matters.

      Appellant’s UDJA claim regarding requesting a declaration of “actual

innocence,” fails because a civil court has no jurisdiction to adjudicate and render

declarations of “rights, status or other legal relationships arising under a penal

statute.” Morales, 869 S.W.2d at 947. Requests for declaratory judgments

regarding criminal liability have even been found to constitute frivolous pleadings

filed for an “improper purpose,” in violation of Texas Civil Practice and Remedies

Code § 10.001. See Trantham v. Isaacks, 218 S.W.3d 750, 754-755 (Tex.App.--

Fort Worth 2007, pet. denied) (holding declaratory judgment was an improper

vehicle for determining Appellee’s potential criminal liability).

      In this case, Appellant seeks a civil court’s declaration of “actually

innocence” of a specific crime. By its very nature and on its face, the legal status,

rights, and other legal relationships arising in the adjudication of, and from, murder

fall under the purview of Texas penal statutes (in addition to the Texas

Constitution). The District Attorney does not assert that this Court does not have

general jurisdiction, under the Texas Constitution to adjudicate both criminal and

civil matters, but rather, she asserts that neither this Court nor any other Texas

court has subject-matter jurisdiction to use a civil remedy and proceeding to

obviate an action that can only be resolved under penal law.




323509-1                                 26
      Additionally, a court of competent jurisdiction, the Texas Court of Criminal

Appeals held that, “the evidence of [Appellant’s] guilt was legally sufficient.”

Springsteen v. State, No. AP-74,223 (May 24, 2006). C.R. 11-25. Appellant’s prior

conviction was not reversed based on a finding of actual innocence, but rather on a

Confrontation Clause violation. See Id. Despite Appellant’s claims to the contrary,

the Court of Criminal Appeals held that neither the “Double Jeopardy” nor “Due

Process Clauses” prohibit the retrial of Appellant for the crime of capital murder in

this case. Id. Further, there is no statute of limitations for capital murder. See Tex.

Code Crim. Proc. art. 12.0 l(l)(A); Demouchette v. State, 731 S.W.2d 75, 80 (Tex.

Crim. App. 1986). Therefore, Appellant could be retried for murder at any time,

and again, for this reason this court has no jurisdiction to issue a civil declaratory

judgment of “actual innocence” in this case.

      5.     ISSUE 5 (Restated)
             Appellant cannot establish jurisdiction in state court when a
             federal court has already dismissed his similarly defective
             pleading seeking a declaration of actual innocence.

      Prior to filing this lawsuit, Appellant has previously attempted to obtain a

similar, improper advisory opinion regarding his claim of actual innocence from

Texas’s federal court system. That is, in May 2013, in the United States District

Court, Western District of Texas, Austin Division, Appellant filed Appellant’s

Original Complaint, Request for Declaratory Judgment and Request for

Mandamus. C.R. 31-37. In a well-reasoned Report and Recommendation of

323509-1                                  27
Magistrate Judge Andy Austin, the recommendation stated “that even a finding by

this Court of Appellant’s actual innocence would not lead to his receipt of

compensation under the statute, given that the statute requires such a finding take

place in the context of a habeas corpus proceeding. C.R. 39-51. Thus…the Court

lacks the authority to redress the wrong on which Springsteen bases this suit.” Id.

Thereafter, Judge Lee Yeakel issued an Order on Report and Recommendation

dismissing Appellant’s Petition and rendered a Final Judgment Dismissing all

claims on November 6, 2013. C.R. 53-54.

      The federal court lacked jurisdiction because it lacked power to issue an

order that redressed Appellant’s claimed injury. Likewise, this Court also lacks

jurisdiction because it cannot issue an order that would redress any injury claimed

by Appellant because no such cause of action exists for these circumstances. Thus,

the dismissal should be affirmed.

                         CONCLUSION AND PRAYER

      In conclusion, this court does not have jurisdiction over this action because

Appellant failed to plead facts necessary to establish a waiver of sovereign

immunity, has filed a defective pleading on a non-justiciable issue and a federal

court has already ruled on this issue.




323509-1                                 28
      For these reasons, Appellee, Travis County District Attorney, Rosemary

Lehmberg, requests that the Court affirm the Trial Court’s judgment and dismiss

this case for want of jurisdiction.




323509-1                              29
                      CERTIFICATE OF COMPLIANCE

      By my signature below, pursuant to Tex. R. App. P. 9.4(i)(3), I hereby certify

that the foregoing Appellee Rosemary Lehmberg’s Brief contains 7,711 words

and is compliant as to form pursuant to Tex. R. App. P. 9.4.




                                      /s/ Andrew M. Williams
                                      Andrew M. Williams
                                      Patrick M. Kelly




323509-1                                30
                         CERTIFICATE OF SERVICE

      By my signature below, I certify that a true and correct copy of the above and

foregoing Appellee Rosemary Lehmberg’s Brief was electronically submitted for

filing pursuant to Third Court of Appeals Local Rule 4 regarding electronic filing

of documents and/or facsimile on the 9th day of February, 2015, as follows:



Via Electronic Filing                        Via Electronic Filing
Jeffrey D. Kyle, Clerk of the Court          Charles F. Baird
Third Court of Appeals                       Amber Farrelly
P.O. Box 12547                               BAIRD ☆ FARRELLY CRIMINAL
Austin, Texas 78711                          DEFENSE
                                             2312 Western Trails Blvd Ste. 102-A
Via Electronic Filing                        Austin, Texas 78745
James W. Hackney                             jcfbaird@gmail.com
48 East Ave.                                 adfelaw@gmail.com
Austin, Texas 78701
jim@jameshackneylaw.com                      Via Electronic Filing
                                             Broadus A. Spivey
                                             48 East Ave.
                                             Austin, Texas 78701
                                             bas@spivey-law.com




                                      /s/ Andrew M. Williams
                                      Sherine E. Thomas
                                      Andrew M. Williams
                                      Patrick M. Kelly
                                      Assistant County Attorney

323509-1                                31
