                                                                           ACCEPTED
                                                                        04-14-00551-cv
                                                           FOURTH COURT OF APPEALS
                                                                SAN ANTONIO, TEXAS
                                                                  9/8/2015 11:27:49 PM
                                                                        KEITH HOTTLE
                                                                                CLERK




                       NO. 04-14-00551-CV
                                                  FILED IN
                                           4th COURT OF APPEALS
                IN THE COURT OF APPEALS     SAN ANTONIO, TEXAS
                        FOR THE            09/8/2015 11:27:49 PM
            FOURTH JUDICIAL DISTRICT OF TEXAS KEITHClerk
                                                     E. HOTTLE

                     SAN ANTONIO, TEXAS

PABLO SOLIZ                    §        APPELLANT
                               §
V.                             §
                               §
STATE OF TEXAS                 §        APPELLEE


         APPEAL FROM 79th JUDICIAL DISTRICT COURT
                  BROOKS COUNTY, TEXAS
              TRIAL COURT NO. 14-02-16542-CV

________________________________________________________________


           APPELLANT’S MOTION FOR REHEARING


                                        Rick Soliz
                                        Attorney at Law
                                        Texas Bar Number 00785013
                                        P.O. Box 4051
                                        Houston, Texas 77210
                                        713-228-1900
                                        Counsel Pro Bono



                ORAL ARGUMENT REQUESTED




                               1
                            NO. 04-14-00551-CV

                   IN THE COURT OF APPEALS
                           FOR THE
               FOURTH JUDICIAL DISTRICT OF TEXAS
                      SAN ANTONIO, TEXAS

PABLO SOLIZ                            §          APPELLANT
                                       §
V.                                     §
                                       §
STATE OF TEXAS                         §          APPELLEE


           APPEAL FROM 79th JUDICIAL DISTRICT COURT
                    BROOKS COUNTY, TEXAS
                TRIAL COURT NO. 14-02-16542-CV

________________________________________________________________



               APPELLANT'S MOTION FOR REHEARING


TO THE HONORABLE JUSTICES OF SAID COURT:

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

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

this First Motion for Rehearing. For good cause, Appellant shows as follows:




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                                            FACTS

       Constable Soliz has had more education and training than any other elected law

enforcement officer in Brooks County or adjacent counties. Historically in Texas, elected

constables had 2 years from taking office to receive required training. And prior to that,

permanently appointed constables need never reach certification. Constable Soliz has

received some formal training at Sam Houston State University since taking office. Constable

Soliz has a 4 year college degree and additional training. He has been certified as a Texas

licensed peace officer and has served multiple jurisdictions through employment and election.


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

educated, competent and moral law enforcement. When one happens to appear as with

Appellant, an "all points bulletin" is put out to destroy. By way of just a few examples

pertaining to Brooks County's recent history: An elected districted attorney has been

disbarred and jailed. Prior to election, he was trained and personally assisted as first assistant,

the elected district attorney ran against and beat. The loser is now the district judge, who

replaced the last judge who was prosecuted, convicted and removed from the bench for life.

The current judge recused himself from this proceeding since Constable Soliz simply knows

too much history about the court's inner workings and related offices. The sheriff during these

times was booted out of town by votes and investigated. He avoided prosecution multiple

times as do most local cops who are merely fired, demoted or transferred among the various

local agencies, instead of prosecuted. In the last few months though, more than half a dozen

cops in the very small county seat and only city, have been merely fired for illegal and

felonious conduct or actually prosecuted and sent to jail. And more investigation is at hand of



                                                 3
several at multiple levels. And of course the appellee's office's head has been indicted for

serious crimes. I'm sure I have failed to mention others. And that gets us to Constable Soliz.

Persecuted over the years by those I have mentioned above for investigating and complaining

about their illegal conduct, and now prosecuted for lack of training by the indicted attorney

general opposing this appeal. This is somewhat of a joke since Constable Soliz has more

experience and training than anyone else on any local police force and including the bloating

number of unnecessary state and federal officers in the area tripping over themselves.

Moreover, it does not take any legal action to note that the law cannot require the impossible.

Constable Soliz was specifically targeted and illegally prevented from enrolling in the training

facility Brooks County utilizes - based on Constable Soliz's age. As an aside, why hasn't

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

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


                                               II.


                      ARGUMENT, AUTHORITY AND EVIDENCE


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

light most favorable to the nonmoving party, the moving party is entitled to judgment as a

matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552 (1986). The

Supreme Court outlined three principals that would determine if summary judgment was

appropriate: 1) The party moving for the summary judgment must meet an initial burden of

showing no genuine issue of material fact exists, 2) The substantive law governing the cases

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

opposing the motion must present affirmative evidence and must produce more than a mere


                                                4
scintilla of evidence to overcome the motion; and 4) The court does not need to look to the

entire record to establish whether a genuine issue exists requiring trial, but need only look to

those portions of the record to which the parties point to the court. Id at 2552-55; See also 3

ATLA’s Litigating Tort Cases § 31.3. A fact is material if its resolution might affect the

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

requires the dispute be “genuine”.


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

declaration that, for specified reasons, it cannot present facts essential to justify its opposition,

the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits

or declarations or to take discovery; or (3) issue any other appropriate order. See Fed. R. Civ.

P. 56(d) (1-3).


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

certified as a Texas licensed peace officer.


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

elected and qualified. Tex. Const. V, sec. 18(a). Where the constitution prescribes the

qualifications for holding a particular office, the legislature lacks the power to change or add

to those qualifications unless the constitution provides that power. Luna v. Blanton, 478 S.W.

2nd 76 (Tex. 1972).




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                                              III.


                                          TRAINING


       The government alleges that Constable Soliz is not licensed because he did not obtain

training in the appropriate amount of time. The Constable replies that he trained and was

licensed long ago therefore there is a fact dispute. Constable Soliz worked as an elected,

licensed peace officer and hired licensed peace officer for multiple agencies. That training

and licensure does not disappear in thin air as if it never happened simply because of the

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

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

than any other constable in Brooks County and possibly all of South Texas. Additionally,

Brooks County belongs to the Coastal Bend Council of Governments therefore Brooks

County officials always look to Del Mar Police Academy in Corpus Christi as their home

school for training purposes. And Brooks County officials are reimbursed expenses for

training by Brooks County. Constable Soliz met with Del Mar’s Director Stan Repka who

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

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

physical tests during the training. Constable Soliz then asked Brooks County Commisioner’s

Court and head of commissioner's court, County Court Judge Raul Ramirez for financial

support, just like they provide for every other peace officer in the county when it deals with

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

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

with the his county government in financial ruin for acts during his tenure, blocked and denied



                                               6
financial assistance at any alternative school and instead later reported this Constable to the

attorney general’s office due to lack of training. Such actions commenced these proceedings.

Constable Soliz’s income, less than $800.00 a month constable salary, was completely

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

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

construction of I 69 through town.


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

Antonio, TX to appear for a previously scheduled appointment to complete the TCOLE

(Texas Commission on Law Enforcement) State Test in order to recertify. Constable Soliz

had studied for two months for this test and paid the $20.00 fee. Mr. Soliz was not allowed to

participate in the exam by the same entity that scheduled his appointment, presumably

because he had not completed training.


       So to summarize, there is clearly a disputed fact relative to training. Appellee has not

disproved Appellant's fact of being disallowed and blocked from obtaining his training.

Constable Soliz's efforts to obtain additional training were stifled by gatekeepers who held the

gate shut. Therefore, it was in every way impossible to comply with any mandatory training,

if any, during the time period in question.


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

hands of abusive government efforts to prevent training and remove a qualified,

constitutionally elected public servant?




                                                7
       The trial court erred by refusing to recognize the fact issues raised by Appellant

regarding his defenses, of not being provided with funds for training and not being admitted to

training based on age, sufficient to materially dispute movant’s summary judgment evidence.




                    ISSUES PRESENTED FOR REHEARING



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

22, 2015, and requests that the Court consider the following issues:



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

the impossible and that any particular defense need be stated in the punitive

removal statute itself.

Issue 2: The Court of Appeals erred in finding that Appellant should not have

his requested and constitutionally protected jury trial.

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

process violation.




                                               8
                          ARGUMENT AND AUTHORITIES



                                            ISSUE 1

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

mandated procedures to be possible. Some things do not have to be written into the law but

are common judicial sense. What should Constable Soliz do? Should he begin arresting those

who prevent him from fulfilling the training mandate. Or should he shoot his way into the

training facility and sit down for classes? For the government to mandate actions, then

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

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

disprove to prevail upon summary judgment. The appellee must disprove Appellant's

allegation or show there is no dispute of a material fact. To interpret the statute as this court

has done makes the statute unconstitutional. Appellant cannot contest what he cannot foresee

until he sees it as he has here.

        Defendant, as the nonmovant, chooses his own defense and is not required to prove his

defense of not being allowed to enroll in the academy and not being provided with money to

obtain training and licensure, in response to a motion for summary judgment. But the mere

raising of a fact issue is enough to defeat the summary judgment, American Pertrofina. Inc.

v. Allen, 887 S.W.2nd 829 (Tex. 1994); Brownlee v. Brownlee, 665 S.W. 2nd 111 (Tex.

1984). In the case at hand, appellant and appellee (in their evidence submitted of appellant’s

complaint letter to the attorney general’s office prior to the 270 days) both did in fact raise a




                                                 9
fact issue regarding appellant’s defense sufficient to materially dispute movant’s summary

judgment evidence.

       Appellant points to the mentioned evidence regarding appellant’s defense that the

training academy director refused to allow him to apply for admission based on age and

refused to accommodate a disability. And that the Brooks County Judge (appellee’s affiant in

the motion for partial summary judgment) refused to provide funding, provided to all other

regularly, for appellant to attend mandatory training that is the subject of this court’s

judgment. I stress that such funding was commonplace for Brooks County officials attending

mandatory training.    And the movant representing the Texas attorney general’s office

presented evidence as well that defendant wrote to the attorney general complaining of this,

prior to the 270 day deadline to receive training for licensure (and this may be the best

evidence to review). Of note is the fact that appellant had already been through this same

academy years earlier and had obtained his license after such enrollment and completion of

academy training.




                                          ISSUE 2

       The government often utilizes motions such as this to prevent its opposition from

getting his day in court. What do they have to lose? When are they sanctioned for doing so?

Constable Soliz probably wins his jury trial on the merits in this case and the government is

aware of this. What jury would not apply common sense and heavy weight to the prohibition

appellant faced while trying to comply with training? This court has prevented such jury

reasoning. Not only does the government file frivolous motions to the government courts on a




                                              10
regular basis, but it simultaneously knowingly protects lawbreaking government agents from

exposure at trial under oath.




                                                ISSUE 3



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

raise due process in his answer to the lawsuit, but the trial court preferred a hearing on this

motion and appellant raised all the issues expressed here and more at such hearing. Appellant

did so by way of explanation of his points in his response to the motion for partial summary

judgment. This discussion was recorded and has been provided to this court. But beyond

that, when is not ruling correctly on a motion for summary judgment, and not ruling correctly

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

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

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

appeal what he has not seen yet, but such interpretation is a due process violation standing

alone.




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                                   PRAYER

        Wherefore, premises considered, Appellant prays that this motion for

 rehearing be unconditionally granted, that this Court grant the relief sought or

set the matter for oral argument and after argument, reverse the judgment of the

            court below and remand the case for trial on the merits.



                        CERTIFICATE OF SERVICE


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

document will be served on opposing counsel.


                    CERTIFICATE OF COMPLIANCE

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

brief to be well under the maximum limit and about 1,300 words.




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


                                       12
