                                                                                 ACCEPTED
                                                                             03-15-00374-CV
                                                                                     7783219
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                       11/11/2015 2:02:53 PM
                                                                           JEFFREY D. KYLE
November 12, 2015                                                                     CLERK
                             No. 03-15-00374-CV

                               In the
                        Third Court of Appeals
                            Austin, Texas
                ____________________________________________

                              JAMAR OSBORNE,
                                                     APPELLANT,
                                     V.


                          WARREN KENNETH PAXTON,
                                                     APPELLEE.
                ____________________________________________

                   On Appeal from the 250th District Court,
                 Travis County, Texas (No. D-1-GN-14-004694)
                    The Hon. Stephen Yelenosky, Presiding
                ____________________________________________

                            BRIEF FOR APPELLEE
                _____________________________________________

                                      Kevin J. Terrazas
                                      State Bar No. 24060708
                                      Julie A. Springer
                                      State Bar No. 18966770
                                      WEISBART SPRINGER HAYES LLP
                                      212 Lavaca Street, Suite 200
                                      Austin, Texas 78701
                                      [Tel.] (512) 652-5780
                                      [Fax] (512) 682-2074

                                      ATTORNEYS FOR APPELLEE
                                       TABLE OF CONTENTS

                                                                                                      Page

INDEX OF AUTHORITIES ................................................................................ii

STATEMENT REGARDING ORAL ARGUMENT ................................................. iv

INTRODUCTION ............................................................................................. 1

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

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

ARGUMENT ................................................................................................... 5

I.      SEPARATION OF POWERS DOES NOT PROHIBIT A LICENSED
        ATTORNEY FROM SERVING AS ATTORNEY GENERAL. ........................... 5

        A.       The Texas Supreme Court Has Already Determined
                 That the Judicial Nature of the Office of Attorney
                 General Does Not Violate Separation of Powers. ................... 5

        B.       Appellant’s Requested Relief Would Have Far-Reaching
                 and Detrimental Consequences at the Highest Levels of
                 Texas Government. .................................................................. 9

II.     THERE WERE NO FACT ISSUES PRECLUDING SUMMARY
        JUDGMENT. ....................................................................................... 10

III.    APPELLANT’S OTHER ARGUMENTS ARE UNAVAILING AND HAVE
        BEEN WAIVED. .................................................................................. 11

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

CERTIFICATE OF COMPLIANCE .................................................................... 14

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


                                                       i
                                    INDEX OF AUTHORITIES

CASES                                                                                        PAGE(S)
Brady v. Brooks,
    89 S.W. 1052 (Tex. 1905)............................................................... 5, 6
Medrano v. Texas,
    421 S.W.3d 869 (Tex. App.—Dallas 2014, pet. denied) ............... 6, 7
Moody v. Baum,
    452 S.W.2d 699 (Tex. 1970)............................................................... 9
Osborne v. Beacon Hill Staffing Group,
     2014 U.S. Dist. LEXIS 60725 (N.D. Tex. Apr. 14, 2014) ................. 2
Osborne v. State of Texas, et al.,
     2013 U.S. Dist. LEXIS 145044 (W.D. Tex. Oct. 7, 2013) ................. 2
Poole v. U.S. Life Title Ins. Co.,
     1975 Tex. App. LEXIS 3334 (Tex. Civ. App.—Waco
     Nov. 1, 1975, no writ) ...................................................................... 11
Richard v. Reynolds Metal Co.,
     108 S.W.3d 908 (Tex. App.—Corpus Christi 2003, no pet.) .......... 12
Southwestern Fire & Casualty Co. v. Larue,
     367 S.W.2d 162 (Tex. 1963)............................................................. 11
Stiles v. Resolution Trust Corp.,
      867 S.W.2d 24 (Tex. 1993)............................................................... 12
Tenneco, Inc. v. Enterprise Prods. Co.,
     925 S.W.2d 640 (Tex. 1996)............................................................. 12
Willis v. Potts,
      377 S.W.2d 622 (Tex. 1964)............................................................... 9
STATUTES
TEX. GOV’T CODE § 81.101 ........................................................................... 7
TEX. CONST. ART. II ..................................................................................... 5
TEX. CONST. ART. IV .................................................................................... 7

OTHER AUTHORITIES
http://ballotpedia.org/Texas_Attorney_General_election,_2014 .............. 3


                                                    ii
Statistical Profile of the State Bar of Texas Membership, available at
      https://www.texasbar.com/AM/Template.cfm?Section=Demographi
      c_and_Economic_Trends&Template=/CM/ContentDisplay.cfm&Co
      ntentID=30865. ................................................................................. 8




                                                  iii
              STATEMENT REGARDING ORAL ARGUMENT

     This case involves a straightforward legal question of whether a

licensed attorney can serve as an elected officer other than in the

Judiciary Department as has been done for decades in Texas and

throughout the country. This issue has already been effectively decided

by the Texas Supreme Court and oral argument is unlikely to assist the

Court in deciding the merits. Therefore, Appellee respectfully requests

that the Court decide this appeal without oral argument. However, if
the Court should require oral argument, Appellee requests that he be

given an opportunity to participate.




                                   iv
                              INTRODUCTION

     Jamar Osborne, the Green Party Candidate for Attorney General

in 2014, filed suit against the election winner, Attorney General

Kenneth Paxton based on the novel theory that a licensed attorney can

serve in the Judiciary—but not in any other branch of government—

without violating the separation of powers doctrine. Ironically, had Mr.

Osborne passed the bar, he agrees that his own argument would

prevent him from serving as Attorney General.
     After losing two summary judgments in which he was given a full

opportunity to present his case,1 Mr. Osborne has appealed primarily

based on incorrect assertions that a general denial precludes a party

from seeking summary judgment and that the district court decided a

no-evidence motion for summary judgment.              Of course, General

Paxton’s summary judgment motions were of the traditional variety

and were based on the legal premise that nothing in the Texas

Constitution, statutes, or common law prevents an attorney from

serving in the Executive Department (or in the Legislature).

     Perhaps in an attempt to avoid having to directly respond to

General Paxton’s motions below, Mr. Osborne went on a rampage—

besmirching counsel, the Travis County District Court judges, and the

judiciary in the rest of the state. If Mr. Osborne had passed the bar, his


1Mr. Osborne did not appear at the second summary judgment out of protest. CR
48.

                                     1
conduct would have likely led to a disciplinary proceeding. That he did

not does not excuse his conduct or create a basis for his suit.
     The district court correctly and professionally explained to Mr.

Osborne that he was not entitled to any relief.           General Paxton

respectfully requests that the Court uphold the district court’s rulings

and affirm its take-nothing judgment.

                          STATEMENT OF FACTS
     Appellant Jamar Osborne is a citizen of Texas who attended law
school but failed to pass the bar. CR 4, 13; RR 17. Unhappy with those

results, Osborne has since made it a practice of suing others on novel

constitutional claims related to that examination.          For example,
Osborne recently filed suit against the State of Texas claiming that the

bar exam is an unconstitutional restriction on his free speech. CR 13;

Osborne v. Texas, 2013 U.S. Dist. LEXIS 145044 (W.D. Tex. Oct. 7,
2013). Osborne also sued a legal staffing agency when he was not hired

for a job alleging that the bar admission requirement is unlawful and

racially discriminatory. CR 14; Osborne v. Beacon Hill Staffing Group,
2014 U.S. Dist. LEXIS 60725 (N.D. Tex. Apr. 14, 2014). This case is

another in the now-long line of Appellant’s challenges to the Texas bar

examination.
     In contrast to Appellant, General Paxton is a long-time public

servant who has paid his dues as a Texas State Senator and

Representative since 2003 and who is a licensed attorney. CR 4, 14.

                                     2
Choosing not to seek reelection as a state senator, General Paxton ran

and was selected as the Republican nominee for the statewide race for
Attorney General.    CR 14.   In the general election, General Paxton

defeated Democratic Party candidate Sam Houston, Libertarian Party

candidate Jaime Balagia, and Green Party candidate Appellant

Osborne. Id. Paxton received nearly 59% of the popular vote compared

to Appellant’s 0.6%. Id. (citing http://ballotpedia.org/Texas_Attorney_

General_election,_2014).

     Following his loss, and in keeping with his modus operandi,

Appellant filed suit against General Paxton on November 12, 2014,

solely for the reason that General Paxton passed the Texas bar exam
and Osborne did not. CR 3. After answering, on December 22, 2014,

General Paxton filed his first motion for summary judgment against all

of the claims in Appellant’s Original Petition.    CR 13.   While that

motion was pending, Appellant served a supplemental petition and

sought a temporary restraining order. CR 30-34. General Paxton’s first

motion for summary judgment was heard and granted on January 22,

2015. RR 1; CR 37.

     General Paxton filed his second motion for summary judgment as

to all claims in Appellant’s supplemental petition on February 12, 2015.
Mr. Osborne did not respond to General Paxton’s motion and, despite

knowledge of the hearing, did not attend the same. CR 48. The district




                                   3
court granted General Paxton’s second motion for summary judgment

on March 12, 2015, rendering a take-nothing judgment.
     Following the judgment, Mr. Osborne filed a “Motion for New

Trial and for Appointment of Master in Chancery,” explaining that “all

judges who have presided over this action had a vested interest in

siding with Defendant.” CR 50. Appellant therefore sought to exclude

all judges in Texas because “It is impossible for any member of the

Texas Bar to be objective in handling Plaintiff’s claims.” Id. After the

motion for new trial was denied, Appellant filed his notice of appeal.

                     SUMMARY OF THE ARGUMENT
     The practice of attorneys running for and being elected to
Attorney General is a long-standing tradition in Texas—including

Governor Abbott, who previously served as Attorney General. Nothing

in the Texas Constitution or any statute has ever precluded a licensed

attorney from serving in the Executive or Legislative Departments. In

fact, to sustain Appellant’s challenge would upend the entire structure

of Texas Government as it now exists. Thankfully, the Texas Supreme

Court has already decided this issue—holding that the Attorney

General serving in a judicial capacity would not violate the separation

of powers doctrine. And because a general denial does not preclude

summary judgment when, as here, there are no material fact issues, the

district court properly rendered a take-nothing judgment. Appellant’s



                                    4
other arguments are similarly without merit and, in any case, have

been waived.

                                    ARGUMENT

I.    SEPARATION OF POWERS DOES NOT PROHIBIT                          A   LICENSED
      ATTORNEY FROM SERVING AS ATTORNEY GENERAL.

      A.     The Texas Supreme Court Has Already Determined
             That the Judicial Nature of the Office of Attorney
             General Does Not Violate Separation of Powers.
      Appellant’s entire case is based on the erroneous conclusion that a

licensed attorney in Texas cannot serve in the Executive Department

solely because he/she passed the Texas bar examination. Appellant’s

argument rests on the incorrect application of the separation of powers

doctrine found in Texas Constitution, Art. II § 1.2                But the Texas

Supreme Court has already addressed and rejected the contention that

the Constitutional role of the Attorney General violates the separation

of powers doctrine.

      In facing a challenge to the role of the Attorney General, the
Supreme Court in Brady v. Brooks recognized the judicial nature of the

office:

      The duties imposed upon [the Attorney General] are both
      executive and judicial, that is, they are judicial in the sense,
      that he is to represent the state in some cases brought in the
      court. The very name imports, even in ordinary language,

2 Article II § 1 provides, “no person, or collection of persons, being of one of these
departments, shall exercise any power properly attached to either of the others,
except in the instances herein expressly permitted.”

                                          5
     that he is the chief law officer of the state and is that in use
     in all common law statutes to designate such officer.


89 S.W. 1052, 1056 (Tex. 1905). The Court continued, “Section 22 of
article 4 might appropriately have been placed in article 5, and we

think it should be construed precisely as if it had been so placed.” Id.

If, as the Supreme Court has explained, the Constitutional provision

related to the office of Attorney General—Article IV § 22—is to be

construed as if placed in Article 5 (the Judiciary), then there is little

question that it would be proper, albeit not required, for the Attorney

General to be a licensed attorney.

     The Fifth Court of Appeals, relying on Brady v. Brooks, also

recently rejected a challenge related to the Attorney General’s executive
and judicial roles based on the separation of powers doctrine. Medrano

v. Texas, 421 S.W.3d 869, 877-80 (Tex. App.—Dallas 2014, pet. denied).

In Medrano, a challenge was brought by a suspended Justice of the
Peace to his conviction of illegal voting because he claimed that the

Texas Election Code Chapter 273 impermissibly vests the Attorney

General with judicial authority, despite the Attorney General being

part of the Executive Department.        Id. at 877.   In an analysis of

precedent from the Texas Supreme Court and Court of Criminal

Appeals, the Fifth Court held that the Attorney General’s prosecution

did not violate the separation of powers doctrine because “the

legislature’s enactment of chapter 273 does not delegate a power to one


                                     6
branch that is more properly attached to another nor does it allow one

branch to unduly interfere with another.” Id. at 880.
        These decisions make perfect sense. Texas Constitution Article

IV, § 22 provides that “[t]he Attorney General shall represent the State

in all suits and pleas in the Supreme Court of the State in which the

State may be a party, and . . . from time to time, in the name of the

State, take such action in the courts as may be proper and

necessary . . . .”    In addition, the Attorney General must “whenever

sufficient cause exists, . . . give legal advice in writing to the Governor

and other executive officers, when requested by them.” Id. Since only a

licensed attorney may give advice or render any service “requiring the
use of legal skill or knowledge,” TEX. GOV’T CODE § 81.101,3 the

Constitution at least suggests that the citizens of Texas have approved

that the Attorney General could (and most likely should) be a licensed



3   Section 81.101(a) of the Texas Government Code states:
        In this chapter the “practice of law” means the preparation of a
        pleading or other document incident to an action or special proceeding
        or the management of the action or proceeding on behalf of a client
        before a judge in court as well as a service rendered out of court,
        including the giving of advice or the rendering of any service requiring
        the use of legal skill or knowledge, such as preparing a will, contract,
        or other instrument, the legal effect of which under the facts and
        conclusions involved must be carefully determined.
Section 81.102(a) of the Texas Government Code states who may practice law in
Texas:
        Except as provided by Subsection (b), a person may not practice law in
        this state unless the person is a member of the state bar.


                                           7
attorney.4 Put another way, although being a licensed attorney is not

explicitly required by state law, it is definitely not prohibited.
      Appellant’s separation of powers argument finds its foundation in

an erroneous premise—that a member of the bar automatically holds an

office in the Judiciary of the state government. Appellant Br. at 10.

Although it is true that licensed attorneys have been called officers of

the court, that is far different from holding an elected office in the

Judiciary. Indeed, to accept Appellant’s argument would suggest that

the over 86,000 active attorneys in the state each holds a government

office—the vast majority of which without any duties, responsibilities,

or compensation.        See Statistical Profile of the State Bar of Texas
Membership, available at https://www.texasbar.com/AM/Template.cfm?

Section=Demographic_and_Economic_Trends&Template=/CM/Content

Display.cfm&ContentID=30865.              That simply is not the case.              An

attorney, while an officer of the court, does not hold office in the

government simply by being licensed. The corollary also is true—an

elected official does not hold a non-elective office (and is not otherwise

employed by the Judiciary) simply by being a licensed attorney.

      Appellant also is incorrect that paying bar dues would violate

separation of powers. Appellant Br. at 11-12. Bar dues are not taxes

and the Judiciary does not exercise authority over a licensed

4 While not at issue in this proceeding, as a non-licensed attorney, such language
could arguably prevent Appellant from serving as Attorney General because
ethically he would not be able to fulfill the constitutional requirements of the office.

                                           8
practitioner through bar dues.5 Regardless, the harshest recourse for

failure to pay bar dues is the suspension or revocation of the attorney’s
license—something that is not statutorily required to hold the office of

Attorney General. Therefore, there would be no way for the State Bar

to exercise authority over the Attorney General’s office simply due to

the requirement to pay a bar due.

      The        Texas   Supreme    Court    has    explicitly    stated    that

“constitutional and statutory provisions which restrict the right to hold

public office ‘should be strictly construed against ineligibility.’” Moody v.

Baum, 452 S.W.2d 699, 702 (Tex. 1970) (quoting Willis v. Potts, 377

S.W.2d 622, 623 (Tex. 1964)).          Here, there is no constitutional or
statutory prohibition on a licensed attorney serving in the Executive

Department, much less a provision that must be construed against

ineligibility.

      B.    Appellant’s Requested Relief Would Have Far-
            Reaching and Detrimental Consequences at the
            Highest Levels of Texas Government.
      Not only are Appellant’s claims unsupported by law, if accepted,

they would have far reaching and detrimental consequences.                 What

Appellant seeks here is to be sworn in as Attorney General of Texas,

having received only 0.6% of the popular vote as the Green Party

candidate. But what Appellant seeks is actually much more; he seeks

5The State Bar does “tax” attorneys through the Attorney Occupation Tax, but as a
government employee, the Attorney General is exempted from this tax.


                                       9
to upend the entire electoral scheme and current government in one fail

swoop. If Appellant is successful, Governor Abbott (a licensed attorney)
would also be at risk to resign. Indeed, Appellant’s argument suggests

that the only elected offices that a licensed attorney could fill would be

in the Judiciary Department—meaning all licensed attorneys who

currently serve as state legislators or senators are violating the

Constitution. Practically, Appellant’s argument could not possibly be

correct.   Ironically, had Appellant passed the bar as intended, his

requested relief would prohibit even him from serving as Attorney

General.

II.   THERE WERE        NO   FACT    ISSUES    PRECLUDING      SUMMARY
      JUDGMENT.
      Appellant’s first and primary argument is that summary
judgment was improper because General Paxton filed a general denial.

Appellant Br. at 4. But as the district court explained to Mr. Osborne

at the first summary judgment hearing, “for the sake of summary
judgment, the Court has to assume that your facts are true. And in

fact, their motion does assume that your facts are true. So that’s sort of

Law 101.” RR 19. The only important fact in this case is whether

General Paxton passed the bar. See RR 20 (“The fact that’s important

to your argument is that Mr. Paxton is a licensed attorney. You are

alleging that he’s a licensed attorney and because he is, he cannot hold

the office of attorney general. Those are the facts. They’re agreeing.”).


                                    10
The filing of a general denial (along with an affirmative defense that

Mr. Osborne’s petition fails to state a claim for which relief can be
granted, CR 10-11) does not create a fact issue that would prevent

summary judgment.6

III. APPELLANT’S OTHER ARGUMENTS ARE UNAVAILING                        AND   HAVE
     BEEN WAIVED.
      Mr. Osborne other arguments—that the district court decided a

no-evidence motion for summary judgment and that Mr. Osborne has a

property right in the office of Attorney General—also are unavailing

and, regardless, have been waived.
      First, despite devoting nearly a quarter of his brief to the issue,

there is no support for Appellant’s contention that General Paxton filed

a no-evidence motion for summary judgment. Indeed, nowhere in the
record are the words “no evidence.” Instead, Mr. Osborne repeatedly

asserted below that General Paxton’s motion was a traditional motion

for summary judgment.            CR 27 (“When a defendant moves for
traditional summary judgment”); CR 48 (same); CR 26 (describing

General Paxton’s motion as a “Tex. R. Civ. P. 166A” motion); CR 48

(providing standard for traditional motion for summary judgment).

6 Mr. Osborne’s case law support does not say otherwise. In fact, in his primary
case on this point, Southwestern Fire & Casualty Co. v. Larue, summary judgment
was affirmed despite a general denial. 367 S.W.2d 162, 163 (Tex. 1963). Also, Poole
v. U.S. Life Title Ins. Co., did not reverse the grant of summary judgment because a
general denial was filed but because material fact questions existed as shown by the
evidence. 1975 Tex. App. LEXIS 3334, *8-10 (Tex. Civ. App.—Waco Nov. 1, 1975,
no writ).

                                        11
Moreover,      “Where      a     summary       judgment      motion      does     not

unambiguously state that it is filed under rule 166a(i) and does not
strictly comply with the requirements of that rule, it will be construed

as a traditional summary judgment motion.” Richard v. Reynolds Metal

Co., 108 S.W.3d 908, 910 (Tex. App.—Corpus Christi 2003, no pet.).

There is no question that General Paxton’s motions were of the

traditional variety.      In addition, Mr. Osborne waived this issue by

failing to raise it below.7
      Second, Mr. Osborne does not have a property right in an office to

which he was never elected. A candidate receiving 0.6% of the vote is

hardly the “lawful owner” of the office. Appellant Br. at 15. Regardless,

again, Mr. Osborne failed to raise this issue in the district court and is

thus precluded from raising it here.            See Stiles v. Resolution Trust

Corp., 867 S.W.2d 24, 26 (Tex. 1993) (“The effect of the 1971 and 1978
changes . . . is to unequivocally restrict the trial court’s ruling to issues

raised in the motion, response, and any subsequent replies . . . . [W]e

believe that the reasons for the rule in the trial court apply equally in
the appellate court . . . .”).



7 Similarly, to the extent the Court may determine that Appellant raises any issue
as to the failure of the district court to order discovery, that issue was waived when
Appellant failed to file a verified motion for continuance. See Tenneco, Inc. v.
Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) (“When a party contends
that it has not had an adequate opportunity for discovery before a summary
judgment hearing, it must file either an affidavit explaining the need for further
discovery or a verified motion for continuance.”).

                                         12
                                PRAYER
     General Paxton has rightfully been elected by the people to serve

as Attorney General of Texas. The fact that he is a licensed attorney

does not prevent him from effectuating the people’s will under either

the Constitution or State law. General Paxton, therefore, respectfully
asks the Court to affirm the take-nothing judgment of the district court.




                                 Respectfully submitted,

                                 By: /s/ Kevin J. Terrazas
                                    Kevin J. Terrazas
                                    kterrazas@wshllp.com
                                    Julie A. Springer
                                    jspringer@wshllp.com
                                    WEISBART SPRINGER HAYES LLP
                                    212 Lavaca Street, Suite 200
                                    Austin, Texas 78701
                                    [Tel.] (512) 652-5780
                                    [Fax] (512) 682-2074

                                 ATTORNEYS FOR APPELLEE




                                   13
                       CERTIFICATE OF COMPLIANCE

     I certify that:

1.   This brief complies with the type-volume limitation of Federal

     Rule of Appellate Procedure 9.4(i)(2)(B) because it contains 3,033

     words, excluding the parts of the brief exempted by Federal Rule

     of Appellate Procedure 9.4(i)(1).


                                 /s/ Kevin J. Terrazas
                                 Kevin J. Terrazas




                                   14
                       CERTIFICATE OF SERVICE

     I certify that this Brief of Appellee was filed with the Court by

electronic format, on the 11th day of November, 2015, and a copy of the

Brief was served on Appellant, as listed below on the same date:


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

APPELLANT


                                 /s/ Kevin J. Terrazas
                                 Kevin J. Terrazas




                                  15
