                                                                                                ACCEPTED
                                                                                            03-14-00552-CV
                                                                                                    5436756
                                                                                 THIRD COURT OF APPEALS
                                                                                            AUSTIN, TEXAS
                                                                                       5/27/2015 2:53:47 PM
                                                                                          JEFFREY D. KYLE
                                                                                                     CLERK
                                NO. 03-14-00552-CV

                      IN THE COURT OF APPEALS              FILED IN
         FOR THE THIRD JUDICIAL DISTRICT AT AUSTIN, 3rd COURT
                                                        TEXAS   OF APPEALS
                                                        AUSTIN, TEXAS
                 ___________________________________5/27/2015 2:53:47 PM
                                                                     JEFFREY D. KYLE
                             RAGHUNATH DASS, P.E.,                        Clerk
                                  Appellant,

                                           v.

               TEXAS BOARD OF PROFESSIONAL ENGINEERS,
                                 Appellee.
                   ___________________________________

                                 On Appeal from the
                 201st Judicial District Court, Travis County, Texas
                    ___________________________________

              MOTION TO STRIKE APPELLANT’S EXHIBIT 7
                _____________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      Now comes Appellee, Texas Board of Professional Engineers (“Board”), and

files this Motion to Strike Appellant’s Exhibit 7 and would show as follows:

                                I. INTRODUCTION

      When appellant Raghunath Dass, P.E., (“Mr. Dass”) filed his appellant’s brief

with the Court he attached several documents as his appendix. One of the documents,

Exhibit 7, is not part of the administrative record in the instant matter; and the Board,

therefore, asks the Court to strike this document.
                       II. ARGUMENT AND AUTHORITY

      A.     The Administrative Record in this proceeding does not contain
             Exhibit 7.

      As explained in the Board’s Brief, the administrative record for the suit for

judicial review underlying the instant case contains only the following four

documents: (1) Board’s Amended Final Order; (2) Respondent’s Motion for

Rehearing; (3) Staff Memorandum to Board Members on Motion for Rehearing; and

(4) Notice to Respondent Overruling Motion for Rehearing. These documents were

provided to the Court by the district clerk. Appellee’s Br. 14-15.

      In the district court case, Mr. Dass filed a motion seeking to have the Board

file with the district court the transcript from the contested case hearing underlying

the first suit for judicial review. See Mot. for Def. to File SOAH Tr. with Dist. Clerk,

dated Apr. 21, 2014, C.R. at 59-61. The Board opposed this motion. C.R. at 99-202.

The transcript was not part of the administrative record, and the district court properly

granted the Board’s motion to strike these documents.

      The district court denied both Mr. Dass’s motion to supplement the record with

the SOAH transcript and PFD and his supplemental motion seeking the same

supplementation. C.R. at 316, 318. The court also granted the Board’s Amended

Motion to Strike. C.R. at 317.



                                                                                Page 2 of 5
      Mr. Dass then filed a bill of exception, seeking to have this Court determine

whether the administrative record in the first suit could be considered by the Court.

Supp. C.R. II at 12-13.

      B.     A court may not consider documents not part of the clerk’s record.

      A court may not consider documents that are not part of the clerk’s record. See,

e.g., Barker CATV Const. v. Ampro, Inc., 989 S.W.2d 789, 795-96 (Tex. App.—

Houston [1st Dist.] 1999, no pet.) (concluding that the court may not consider

documents that are not part of the clerk’s record); Tex. R. App. P. 34.

      C.     The Court would first have to rule on the district court’s excluding
             the transcript, but this issue has been waived.

      As noted in the Board’s brief, Mr. Dass failed to brief his issue regarding the

exclusion of evidence. Appellee’s Br. 43. Thus, Mr. Dass waived the issue of whether

the trial court erred in excluding the transcript, and the transcript is not properly

before the Court.

                                   III. PRAYER

      The Board respectfully requests that its Motion to Strike Exhibit 7 be granted.

                                       Respectfully submitted,

                                       KEN PAXTON
                                       Attorney General of Texas

                                       CHARLES E. ROY
                                       First Assistant Attorney General

                                                                             Page 3 of 5
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation

DAVID A. TALBOT, JR.
Chief, Administrative Law Division

/s/Jennifer L. Hopgood
Jennifer L. Hopgood
Assistant Attorney General
State Bar No. 24073010
OFFICE OF THE ATTORNEY GENERAL OF
TEXAS
Administrative Law Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 936-1660
Facsimile: (512) 320-0167
jennifer.hopgood@texasattorneygeneral.gov
ATTORNEY FOR APPELLEE,
TEXAS BOARD OF PROFESSIONAL
ENGINEERS




                                     Page 4 of 5
                       CERTIFICATE OF CONFERENCE

     I certify that I have conferred with Jimmy Alan Hall by telephone on this day,
May 27, 2015, and he is opposed to withdrawing the exhibit that is the subject of this
motion to strike.

                                       /s/Jennifer L. Hopgood
                                       JENNIFER L. HOPGOOD
                                       Assistant Attorney General


                          CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the above and forgoing
document has been served by e-service on this date, the 27th day of May 2015, on
the following:

Jimmy Alan Hall
JIMMY ALAN HALL, P.L.L.C.
4600 Mueller Boulevard, Suite 2121
Austin, TX 78723-3372
Facsimile: (512) 857-9195
jahall@fbjah.com

J. Woodfin Jones
ALEXANDER DUBOSE JEFFERSON
& TOWNSEND LLP
515 Congress Avenue, Suite 2350
Austin, Texas 78701-3562
Facsimile: (512) 482-9303
wjones@adjtlaw.com

Counsel for Appellee

                                       /s/Jennifer L. Hopgood
                                       JENNIFER L. HOPGOOD
                                       Assistant Attorney General


                                                                             Page 5 of 5
