                                            August           21/2015




Fourth    Court       of    Appeals

Deputy    Clerk,       r,Uz       Rstrada      I    3219


RK:    Piling    Of    Mandamus




Dear    Deputy       Clerk        Rstrada




       °lease    find       enclosed        my      Mandamus       for   filing.       There         is    a    copy

for    stamping       and     returning            to   me   via   the   provided       SASE.         If       there

is    anything       else     I    need   to       do   please     contact      me.    Thank         you         for

your    help    in    this        matter.




                                                                   Respectfully         yours




                                                                   David   A.    Edwards         a    907246
                                                                   Pla inti ff,       pro   se
                                                                   Ellis   Hnit,       1^^7      FM       QRO
                                                                   Huntsville,         Texas         77343




c/c    file
                                      Civil Action No:       12-02-0185-CVA

                                                                                                                on




David Allan Edwards I 907246                                                                      £    "        ^a
Ellis Unit,        1697 FM 980                                                                                   c*3
                           ___„_                       -           In The Court of App^^lS of She 5f
Huntsville, Texas 77343                                ?                                     ;»*
                                                                   Fourth    Supreme

           Plaintiff                                   §           of Texas


             ~V~                                                                             AND
                                                       5
County Court of Commissioners,                                        _  _,  on t/-n o*.u t j- ■ n
                                                                      In The Rlst/21Rth Judicial
Atascosa County,          Texas                                       _. . .
              1                                        c              District    Court,      Atascosa
                                                       §
           Defendant[s]                                               County, Texas




     HflNDAHUS      TO    COMPEL       FOR    PERFORMANCE          OP    PROCESS       FOR    A       JODGEMENT


     FOR    ACCEPTED       SERVICE          AND    APPEARANCE,          PURSUANT       TO    TRCP,         15,21,


                           21a,99,103,106,107,119,120a,121, 122

                                                       AND


     FOR    N0-AN5WER       SUMMARY          JUDGEMENT       WITH       5EVERF.NCE,         PURSUANT            TO,


                                41,    166aCc),237,237a,239,240,26«


 FOR       DEFENDANT[S]          COUNTY COURT OF COMMISSIONERS,                         ATASCOSA COUNTY

                                                      TEXAS



To    Honorable          Judges       of    Said    Court,



     Paupers            Oath,    I    DAVID       ALLAN EDWARDS,          have    no material               wealth,

no     money        and     no        income        from     any    source       to    pay    fees         or    cost,

attorney,etc.              See       TRCP    145,   who    is   incarcerated            and    pro         se    liti

gant,      see     Armstrong          8P1    S.W.    2nd   at   53,     as   a   pro    se    litigant               T   am

subject       to    "    less stringent standards                   than     formal      pleadings draft

ed by real          lawyers."          See    Spellman       819    S.W.     2d at      206.
Writ        of         Mandamus       is     proper        remedy       when District Judge fails

to      rule,           it arbitrarily becomes a refusal                     to rule on Plaintiffs

Motion           to      Compel       Judgement          and      Motion     for No-Answer Summary

Judgement for defendants County Court of Commissioners of Atascosa

County,           Texas.           Hearing        Courts        failure    to consider and rule on

this motion properly filed and served upon defendants/                                          see exhibit

"A"        is     a      failure          to exercise          its authority when            it has a duty

to    do    so.



In Re Bonds                 57     S.W.3d     at     456        (Tex-App-San       Antonio,2001)             "    A

trial court is required to consider and rule upon a motion within

a     reasonable                 time."     Safety-Kleen          Corp V Garcia          945    S.W.    2d       at

268-269           (     Tex-App-San Antonio 1997)                   " When a motion            is properly

filed           and     pending           before a trial court,            the act of giving con

sideration              to       and ruling upon that motion                is a ministerial act,

and Mandamus may                   issue    to compel      trial    judge    to act."


Plaintiff filed his original Due Course of Law Complaint February

28,   2012 and timely served defendants.                            On April       5,    2012 plaintiff

filed       a Supplement 69,80 adding defendants County Court of Comm

issioners,              properly           serving       them     with certified mail receipt.

See     exhibit              "A"     attachment exhibit            "A".     There have been             three

hearings              and     defendants          have     not     made     an appearance or have

not     filed           any        answer     after being properly served by certified

mail.       see         exhibit           "A" attachment exhibit            "A".        At    last hearing

on    May         9,        2014 plaintiff requested               hearing Judge Thomas                F.   Lee

to    make a           ruling concerning the defendants County Court of Comm

issioners.              Hearing           judge    just        stated     he wasn't          there   to rule


                                                         (2)
on that and had no knowledge of anything concerning them.                                        Plain

tiff     timely           filed        and        served a No-Answer Summary Judgement on

8/1/2013,see              exhibit           "A"     attachment              exhibit   "C" and "D"clerks

index. This              No-Answer Summary Judgement was signed for as defen

dants     have           had     every           opportunity           to     file an answer and have

failed        to     defend           themselves.           The        Hearing Court has had every

opportunity              to     rule        on     this     motion as it was filed 8/1/2013.


                                                          II



See     exhibit           "A",        attachment           "B"        page 9, last paragraph. This

document           was        filed     by        County Attorney of Atascosa, Mr. Dennis

Arriaga, in              The     Fourth           Court     of        Appeals, San Antonio, Texas.

Mr.     Arriaga           for        what ever reason felt the need to include this

Appearance/Excuse for the defendants County Court of Commissioners

of     Atascosa.              This     constitutes              an     appearance in a Texas Court

of     Law.         This        confirms           the     facts A) they were served,B) They

were     aware           they        were     defendants in a suit/C) They had a legal

obligation/responsibility                         by      statute        to    either    object to the
alleged        improper              service       with a Motion to Quash within 20 days
of     service           improper or not, or waive their right to complain,D)
By     this     admission             and written and filed declaration in a Texas

Court     of        Law        Mr.     Arriaga,          has         taken it upon himself to both

make     an     appearance              for       the     County        Court of Commissioners of

Atascosa        and        represent             them.      "A       general     denial of a alleged
improper service as defense."


Burger V Burger 298 S.W.2d at 119,156." A special appearance is -
unknown        to     Texas          practice and the filing by a defendant of any

                                                          (3)
defensive              pleading/              though        it    be only          for    the       purpose of             chal

lenging           the       jurisdiction of the court,                            constitutes an                appearance

and     a        submission              to    the    jurisdiction                of    the    court          for    all    pur

poses . "



This    pleading can                be    termed a          defensive             explanation             by    Mr.    Arriaga

and    by doing             so submits          the defendants                County Court                of Commissio

ners        to        the     jurisdiction                 of hearing             court       and any other                court

for     all           purposes.           Cotton          V Cotton       57       S.W.3d       at    506,Constitutes

an    answer or             appearance          with       this    defensive             theory          or    pleading.


Plaintiff              pursuant           to        TRCP 99,106(2),"mailing                         to    the defendant

by     registered              or        certified              mail,return              receipt              requested,          a

true        copy        of     the       citation          with    a    copy       of    the    petition             attached

thereto."              Tx.Civil.Prac.Statute,$136.001                                   (certified              mail).       See

exhibit           "A",attachment                    "A"     certified              receipts,              signed by          the

defendants              or     their           agents,           which        satisfys              TRCP       107    "return

of    service          (ll)(c)."


Rule    502.5          Answer,        which          defendant          County          Court       of    Commissioners


failed           to comply with.                Rule       503.1,       If defendant                fails       to    answer,

(a)    Default          Judgement,"If                 defendant           fails           to        file        an     answer

by     the        date        stated           in     Rule       502.5,       the       judge       must       ensure      that


service           was        proper,           and        may     hold        a   hearing           for       the    purpose.

If     it        is     determined              that        service           was       proper,          the    judge      must

render a          default       judgement."                See    Rule    503.1.



The     law           and     rules        are        clear        on    this          issue    and       plaintiff         has


shown        due       diligence          in    pursuing these rulings                        from hearing             court.

Plaintiff              request           through          Mandamus       that       This       Court renderjudge-


                                                            (4)
ment    for No-Answer                Summary Judgement                   and make          ruling on          Appearance

or     make        an    order       for Hearing Court                   to    fulfill       its    legal          obliga

tion    by doing          same as             law and statute               dictate. Celotex             Corp V Cat-

rett,    477       U.S.    317,322.                106    S.Ct.      Entitled        to    judgement          as    a    mat

ter of       law.       See Chesser V McNabb/619 S.W.2d at 420,                                     Loe       V Murphy,

611    S.W.2d       at    449.


Defendants              have    failed             in all      respects        to    file anything             remotely

answering           to     the           merits           of     plaintiffs          complaint.          The hearing

court        has        failed           in        all    respects       to    adhere       and    to    comply          with

normal        law        and        statute.              It     has     been       more    than    30 days             since

last    hearing.




                                                           PRAYER




WHEREFORE           premises                 considered           plaintiff           prays        this       Honorable

Court        GRANT        this           WRIT        OF    MANDAMUS and             GRANT    No-Answer             Summary

Judgement           in    favor of plaintiff giving                            plaintiff          all     the       relief

entitled           to,     cost              of     court,past           expenses           and    attorney             fees.

If     not     then        GRANT              ORDER        for    hearing       court       to    hold    hearing          on

the     pleadings              in        a        reasonable         time     and    have    plaintiff             present

for     hearing.           Plaintiff                 also        prays        that     this       Honorable             Court

allow        plaintiff              to        correct          any     defects         within       this      pleading

if necessary before                      ruling.



                                                                         Respectfully             submitted




                                                                         David Allan Edwards                   #    907246
                                                                         Plaintiff,pro se
                                                                         Ellis       Unit,       1697    FM   980
                                                                         Huntsville,             Texas    77343




                                                               (5)
                                                       DECLARATION



I    DAVID       ALLAN    EDWARDS/declare                     under       penalty   of   perjury,     pursuant


to     §        132.001        and         TRCP        Codes,        that    I   have read and      subscribe

to     the        above       and    I     swear       that    the       information     contained     therein

is    true       and correct             to     the    best of my knowledge.



Executed          on      'Ql" (S                       ,at    the       Ellis   Unit,   Huntsville,        Texas



                                           CERTIFICATE              OF   SERVICE




I    DAVID       ALLAN    EDWARDS,hereby                    certify         under    penalty     of    perjury

that        a     true        and    correct          copy of        the WRIT QP MANDAMUS,            has    been

provided           to     the        below            listed         parties      by placing   said motion

in     an       envelope sending                 it   USPS certified mail with               reciept        requ

ested on this day                        J(^           of      ^3Xa3T"               2015.



County          Court    of    Commissioners

Courthouse,             suite       102
One    Courthouse             Circle           Dr.
Jourdanton,             Texas       78026




                                                                     Respectfully        submitted


                                                                             A A-
                                                                     David Allan Edwards # 907246
                                                                     Plaintiff, pro se
                                                                     Ellis Unit, 1697 FM 980
                                                                     Huntsville, Tx 77343




                                                              (6)
EXHIBIT



  A
SENDER: COMPLETE THIS SECTION                           COMPLETE THIS SECTION ON DELIVERY


a Complete items 1,2, and 3. Also complete
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B Print your name and address on the reverse                                                       □ Addressee
  so that we can return the card to you.
■ Attach this card to the back of the mailplece.
  or on the front if space permits.
                                                        D. b delivery address different from iterni? D Yes
1. Article Addressed to:
                                                           If YES. enter delivery address below:     □ No




                    /O
                                                           D Certified Man     Q Express Mail
                                                           D Registered        D Return Receipt for Merchandise
                                                           D Insured Mail      D C.O.D.
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2. Article Number
   (Transfer from service labs!)
                                            ?D14 DS1D 0001 BSflfl
PS Form 3811, February 2004               Domestic Return Receipt                                1025SM)2-M-1540




                                                                                        First-Class Mail
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             •Sender Please print your name, address, and ZIP+4 in thi
                                                                   this box
                                                                              FILEf               O'CLOCK_niM
                                                                                                  OCLOCK_iM
                                        Civil Action No; 12-02-0185-CVA      ^/ARGARET E. LITTLETON,
                                                                                                 ON DISTRICT
                                                                                                     DISTRICT CLERK


                                                                                              2 2 2015
 David Allan Edwards #907246
 Ellis Unit,1697 FM 980
 Huntsville, Texas 77343                                                     CLERK DC
                                                                             BY_

          Plaintiff
                                                                     In The 81st/218th
              -V-
                                                                     Judicial Dist. Court
                                                                     Atascosa County,     Texas
 County Court of Commissioners
 of Atascosa County, Texas

         Defendant's




                                          MOTION TO CCMPEL JUDGEMENT


        FOR ACCEPTED SERVICE AND APPEARANCE, PORSOANT TO T.R.C.P. 15,21,21a,

                                        99,103,106,107,119,120a,121,122


                                                       AND



     FOR NO-ANSWER DEFAULT AND/OR SUMMARY JODGEMENT WITH SEVERENCE,RORSOANT TO,

                                        41,166a(c),237,237a,239,240,268

       FOR DEFENDANT'S, COUNTY COURT OF COMMISSIONERS, ATASOOSA COUNTY, TEXAS




       See    exhibit       "B»        appeal filed by County Attorney of Atascosa, Mr. Dennis
Arriaga,       in     the    Fourth        Court of Appeals, San Antonio, Texas. Expressly see
page     9,    last      paragraph.         For   what ever reason Mr. Arriaga felt the need to

include this APPEARANCE/EXCUSE for defendant's County Court of Commissioners
of     Atascosa     in      this        bi-line   both including the facts that defendant's had
been served and              in        doing so making air appearance in a Texas Court of law.
This    appeal      filed         by     Mr. Arriaga, and the defendant Sheriff had nothing to
do with       the other defendant's                County    Court of Commissioners of Atascosa.
       That     stated/ the usual and accepted practice is that the County Attorney,

 represent County entities, such as Sheriff's and County Court of Commissioners.

 No    matter        what        faux          disclaimers          and artfully crafted excuses Mr. Arriaga,

uses      to    disguise              this        explanation on behalf of defendant's County Court of

Commissioners/                 the        fact        remains       this   by Texas Law confirms an Appearance.

This     also        confirms              the        facts (A) they were served, (B) They were aware they

were     defendant's                 in    a      suit,(C)          They   had legal obligation/responsibility

by     statute           and    law         to        either    object to the alleged improper service with

a     Motion        To     Ouash          within         20    days of service proper or not,or waive their

right     to        complain,(D)                 By     this    admission and written and filed declaration

in a Texas Court of Law, Mr. Arriaga, has taken it upon himself to both repre

sent     defendant's             County Court of Commissioner's of Atascosa County, and make

an    appearance           with           his         faux answer of general denial of a alleged improper

service        as    defense.                  The     law     is    clear and concise on this issue and will
explain as follows.



Burger V Burger                298        s.W.2d        at     119,156,      -   a special appearance is unknown

to    Texas      practice,                and the filing by a defendant of any defensive pleading,

though     it       be only               for     the     purpose of challenging the jurisdiction of the
court,     constitutes -an                      "APPEARANCF;"         and a submission to the jurisdiction of
the court for all purposes."


The pleading as it can be termed in exhibit (B) on page 9 can be construed
and termed a defensive explanation by Mr. Arriaga and the defendant's County
Court     of     Commissioners                   and     by     doing      so submitting to the jurisdiction of
hearing        court and any other court for all purposes. This constitues an appea
rance     and       pleading              in     substance and form and should be recognized as such.

Cotton V Cotton 57,S.W.3d at 506,Constitutes an answer or appearance.



                                                                    (2)
Defendant       complains        about alleged improper service. The law is clears this.

TRCP 15/Writs S Process

Williams V Williams 150 S.W.3d at 436,445/"                     [W]e hold that citations must    be

expressly       directed        to    the defendant under TRCP 99 and may also be addressed


to     the    Sheriff or Constable under TRCP 15,BUT FAILURE TO INCLUDE THE SHERIFF

OR     CONSTABLE      ON      THE    FORM   OF    CITATION WILL NOT RENDER IT VOID",      See also


Barker CATV Constr,Inc V Ampro/Inc 989 S-W 2d at 789,792.


Plaintiff       pursuant        to TRCP 99,106(2),"mailing to the defendant by registered

or     certified      mail,return receipt requested, a true copy of the citation with

a     copy    of     the     petition    attached     thereto." Tx.Civil.Prac.Statute,$136,001

(certified mail).See             exhibit       "A"pages    2    and 3,certified receipts signed by

defendant's or their agents, which satisfy's TRCP 107 return op SERVICE (ll)(c)


      When the citation was served               by registered or certified mail as authorized

by     Rule    TRCP        106,The    return     by the officer or authorized person must also

contain       the    return receipt with the addressee's signature." See exhibit "A",

pages 2 and 3,return receipt green card,top right hand corner.                       This satisfy's

the     requirements          for     proper and accepted         service of citation. Defendant's

County       Court    of     Commissioner's       by and through County Attorney Mr. Arriaga,

and his filing of appeal in the Fourth Court of Appeals satisfy's the standards

for Appearance in a court of law.                 See exhibits "A","B","C","D".



The    excerpt       in exhibit "B" on page 9, constitutes an appearance and explana

tion    or    defensive        theory by defendant's County Court of Commissioners. This

admission      of     alleged        improper    service       cannot   be construed any other way.

The    defendant       admits        service but complains it was not properly served.          The

law    and    statute is clear as once service defective or not is established,the

burden falls upon the defendant to notify the court.                      Motion to Quash Service.



                                                    (3)
See TRCP 119," The defendant accepts service of process,(See exhibit "A",cert

ified        receipts        green        cards)       or    waives the issuance of service thereof by

a written memorandum signed by him,or by his duly authorized agent or attorney

,after       suit is brought/             sworn to before a proper officer other than an attor

ney     in    the     case,        and     filed among the papers of the cause, and such waiver

or    acceptance        shall        have        the    same force and effect as if the citation had

been        issued    and     served        as     provided by law." See exhibit "B" page 9,Waiver

by defendant County Court of Commissioners, by and through the County Attorney

Mr.     Arriaga,       claiming           improper          service   and     lack of jurisdiction. This by

any     reasonable          person        can     be construed as an appearance in a court of law.

See TRCP,Rules and Statutes 120,120a,121,122.



Rule 502.5 Answer,which defendant County Court of Commissioners failed to com


ply with. Rule 503.1,                If Defendant fails to answer.(a) Default judgement,               " If

defendant           fails to file an answer by the date stated in Rule 502.5,                     the Judge

must        ensure     that service was proper, and may hold a hearing for the purpose.

If     it     is determined that service was proper,                        the Judge must render a default

judgement." See Rule 503.1



Plaintiff           request        that    this        court to either render judgement for No-Answer

Default        against the defendant County Court of Commissioners or hold a hearing

on     the     premise        of     proper       service as cited and demanded by law and statute


contained           within    this pleading. Plaintiff also request to be present at said

hearing        in     person and          will make objection to any further or future hearings

held by phone as it creates a bias and prejudice against Plaintiff to have any

real time ability to participate in the hearing. Plaintiff request the follow

ing dates for hearing. May 9,2015,June 16,2015,June 23,2015.                             Let this be noti

ce Of hearing dates for defendant County Court of Commissioners.




                                                              (4)
                                                          II




Plaintiff       filed       his    original Due Course of Law Complaint on Feb 28,2012 and

timely    served        defendant's. On April 5,2012 Plaintiff filed Supplement 69,80,

adding    defendant's             County    Court       of     Commissioners       and Doctor of jail.   On

April     17/ 2012 defendant County Court of Commissioners signed for service,see

exhibit        "A"    page 2. On October 24,2012 this cause was remanded back to State

District       Court        from     Federal Court. Plaintiff timely served defendant County

Court of Commissioners with Reinstatement.See exhibit "A" page 3. This service

was      signed       for    on     October     25,2012 by defendant.Defendant County Court of

Commissioners          was    also     served       a    Notice of Default on           October 26/2012 for

failure        to make an appearance in Federal Court,see exhibit "A" page                         4,signed

certified receipt by defendant.


On     December       12,     2012     Administrative              Judge    Thomas F.   Lee was appointed to


over     see     this cause. The first hearing was held on April 17,                         2013. Defendant

County     Court       of     Commissioners         had       not at this time made any appearance or

filed     any answer. On             August 1,2013 Plaintiff filed another No-Answer Default

serving        defendant County Court of Commissioners.see exhibit                          "C" signed cert


ified receipt and motion-                  No response was ever made by defendant.                On Septem


ber     26,2013       there was another hearing held. No appearance or answer was made

by     defendant       County        Court of Commissioners.               There was no attempt by hearing


court     to     address       any     motions      concerning             defendant in question. There was

another        hearing held on May 9, 2014 at the Atascosa Jail Facility.                          Defendant

County Court of Commissioners failed to make any appearance or file any answer.

There     is     no    record of any filing contained in the District Clerks index.see

exhibit        "D".    On     or around January 20,2015 defendant County Court of Commis

sioners        made    an appearance in the Fourth COA,by and through County Attorney,




                                                             (5)
Mr. Dennis Arriaga,see exhibit "B" page 9,bottom paragraph establishing                            an

appearance in a court of law.



A     No-Answer         Default       judgement       can    be rendered when the defendant does not

file     an       answer.       The    court     may render a default judgement on the pleadings

against       a     defendant         that     has    not filed an answer,see TRCP 239 and exhibit

"A", "B'V'C'VD",clerks                 index    as     nothing      has been filed by defendant County

Court     of Commissioners as of the filing of this motion for No-Answer Default.

All     allegations of facts including those establishing liability in the Plain

tiff's       petition          are    deemed    admitted          except for the amount of unliquidated

damages,Dolgencorp,228 S.W.3d at 930,see TRCP 243.


More     than 20 days have elapsed since the date on which the defendant's herein

were     served         with    a copy of Plaintiff's Reinstatement by certified mail,TRCP

106,107,          and    No-Answer       defaults,see         exhibits "A","C". The defendant's have

failed       to     appear      at     any hearing held in this cause, the last being held on

May    9,2014.           The    defendant's          did    however    make an appearance on or around

January       20,       2015    in     the Fourth Court of Appeals, by and through the County

Attorney,         Mr.     Dennis      Arriaga, confirming the fact that defendant was served

and had knowledge of the claims against them but,willing and knowingly refused

to    file     any answer or                present any defense until this apearance, using the

defensive         theory of           faulty service          and    lack of jurisdiction.   That said,
the    time       has     passed      for    defendant        to present any answer as after 20 days

of    faulty        service      or not,defendant had an obligation to file with the court

a    notice       of     this alleged faulty service. Defendant has now waived his right

to    complain          and this appearance has become an admission of service,knowledge

of    being       a defendant in a suit and an appearance giving the court the juris

diction to rule on this No-Answer Default.



                                                            (6)
The     statute        and     law   designed to "Pierce the Pleadings             " No-Answer default,

TRCP     239,     is clear and consice also along with TRCP 237a,"Remand After Rein

statement"        15        days to file answer. See HBA.E.,Ltd V JEA Boxing Co.796 S.W.26

at     534/538/        is    also    clear       and concise. Hearing Court and Judge Lee,          has a


duty     to     hold        a hearing and rule as law and statute dictate or continued Due

Process        violations        are    happening out of this court creating a continued bias

or     prejudice denying Plaintiff his 14th Amendment Right to a fair and impart

ial review and Due Process of Law.


Plaintiff        has duly filed all pleadings and properly served defendant's County

Court of Commissioners. See exhibits "A","B","C","D".                          It is TO LATE for defen

dant to file any answer or for any answer to be allowed. See Matter of Pancake

106 F.3d at 1242 (5th) "Under                    Texas     Law    where    No Answer is filed defendant

is     deemed     to        admit    plaintiff's pleadings and, thus judgement maybe entered

based     upon     those        pleadings." Stoner V Thomson,578 S.W.2d at 679,682/"Defen

dant     who     neither       answers nor appears has "ADMITTED" the facts properly pled

and the justice of the opponents claims" TRCP 166a(i).



On     April     5/2012       when     Plaintiff         filed Supplement 69,80        adding defendant's

Doctor     of     jail and County Court of Commissioners. Plaintiff used same method

of     proper     service       by     certified return. The defendant Doctor had no problem

with     the    service        or    did court have any problem identifying jurisdiction to

render        judgement       concerning         defendant       Doctor.   Plaintiff    used same method

of    proper service of certified return with Remand Reinstatement on all defen

dants. All        defendants         had    NO     PROBLEM with service and Hearing Court had no

problem establishing jurisdiction to render judgements concerning these defen

dants.        Defendant        County      Court    of     Commissioners are not above the law and

Hearing       Court has a duty to render judgement in favor of Plaintiff-See Celotex

Corp V Catrett,477/U.S.317,322,106 s.Ct,"Entitled to judgement as a matter                            of


                                                          (7)
 law." See Chesser V McNabb,619 S.W.2d at 420, Loe V Murphy,611 S.W.2d at 499.

 Defendants      have     failed   in   all respects to file anything remotely answering

 to    the    merits    of Plaintiffs complaint. It has been more than 30 days since

 the   last     hearing    held    on May 9, 2014.   This Court has a duty to set a date

 for   hearing and make a ruling           as its set dates and rendered judgements for
 all other defendants and they were served EXACTLY the same as defendant's Cou

nty Court of Commissioners. If           for some erred opinion     by   this court that

service was not           proper for defendant County Court of Commissioners and that
this court does not have jurisdiction to rule,then the prior Judgement-* hy
this    court    should by law be null and void concerning all other defendant's,
as they were all served EXACTLY THE SAME. See exhibits "A", »r»,"C","D"


Defendant's are not           in   the Military and are not infants or incompetant's.




                                   REQUEST FOR HEARING DATES




Plaintiff hereby request the following dates for hearing. May 9,2015,June
16,2O15,June 23,2015. Let this              be notice of hearing dates for defendant's
County Court of Commissioners,Atascosa County.




                                             (8)
                                                PRAYER




WHEREFORE      premisses      considered,      Plaintiff herein prays this Honorable Court

GRANT   this     No-Answer      Default if full, and defendant County Court of Commis

sioners take nothing.          Plaintiff      prays     this Honorable Court GRANT all relief

requested    within      these pleadings. Plaintiff prays this honorable Court GRANT

all   expenses      Plaintiff     is   entitled        to,cost of court,experts,past attorney

fees,service     cost    and     filing      fees     and   any other expenses this court deem

acceptable     that     Plaintiff      has    incurred      pursuing the truth in this matter.

Plaintiff    also     prays     this    Honorable Court hold defendant's County Court of

Commissioners accountable in all things both jointly and severalty.




                                                              Respectfully submitted




                                                              David Allan Edwards   # 907246
                                                              Plaintiff/Pro se
                                                              Ellis Unit, 1697 PM 980
                                                              Huntsville,   Texas 77343
                                    DECLARATION



I DAVID ALLAN EDWARDS/ declare under penalty of perjury, pursuant to § 132.001

and   TRCP    Oodes, that I have read and subscribe to the above and I swear that

the   information contained therein is true and correct to the best of my know

ledge .


Executed on PQa*Sl ^.i^O\S       / at the Ellis Unit, Huntsville, Texas.



                              CERTIFICATE OF SERVICE


I DAVID ALLAN EDWARDS/ hereby    certify     under   penalty   of perjury that a true

and correct copy of the MOTION TO COMPEL JUDGEMENT FOR NO-ANSWER DEFAULT ,        has


been provided to the below listed parties by placing       said motion in a postage

paid envelope with certified return receipt requested on this day         JL. }
of April 2015.




County Court of Commissioners
Courthouse/Suite 102
One Courthouse Circle/Dr.
Jourdanton/   Texas 78026



District Clerk/Margaret  Littleton
1 Courthouse Circle Dr. Suite 4-B
Jourdanton, Texas 78026




                                               Respectfully submitted




                                                David Allan Edwards #907246
                                                Plaintiff/Pro se

                                                Ellis Unit, 1697 FM 980
                                                Huntsvilie,Texas 77343


                                      (10)
                                 Civil Action No:          12-O2-O185-CVA




David Allan Edwards #907246
Ellis Unit,        1697 FM 980
Huntsville,        Texas 77343
                                                       §
        Plaintiff                                                       In The 81st/218th
                                                       §                Judicial Dist.   Court
             -V-
                                                                        Atascosa County,    Texas

county Court of Commissioners
                                                       5
of Atascosa County,           Texas


        Defendant's




     ORDER GRANTING PLAINTIFF DAVID ALLAN EDWARDS,MOTION FOR NO-ANSWER DEFAULT/


                        NO-EVIDENCE SUMMARY JUDGEMENT WITH SEVERENCE




On     this     day                 of                        2015,came to be considered plaintiff

DAVID ALLAN EDWARDS/ Motion               for   No-Answer default/No-Evidence Summary Judge

ment     with      Severence.       Plaintiff    and       counsel   for Defendant County Court of

Commissioners of Atascosa appeared and anounced ready. After hearing arguments

and     reviewing       the evidence contained within the pleadings,plaintiff's Motion

with     exhibits attached, the Court is of the opinion that plaintiff DAVID ALLAN

EDWARDS, Motion should be GRANTED in all things.


IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED, plaintiff DAVID ALLAN EDWARDS,

Motion        is   hereby     GRANTED      in   all things and that defendant County Court of

Commissioners          take    nothing from plaintiff. It is further ORDERED that defen

dant        County    Court    of     Commissioners        of Atascosa pay reasonable expenses to

plaintiff and cost of court.



 It    is     further    ORDERED,        ADJUDGED,     AND    DECREED that all of defendant's Co

unty Court of Commissioners actions concerning plaintiff DAVTD ALLAN EDWARDS ,

are hereby severed from plaintiff's actions against the remaining defendant's.


                                                       (ID
The defendant's    County Court     of Commisioner's are hereby made the subject
of a seperate suit      styled DAVID ALLAN EDWARDS # 907246 V COUNTY COURT OF
COMMISSIONERS OF ATASCOSA COUNTY:Cause Number



SIGNED THIS                DAY OF                               ,   2015




                                              JUDGE PRESIDING




SPECIAL INSTRUCTIONS:




                                       (12)
                        ' CSSS




(1, ORIGIN no. curse of Law Complaint      ?
 2) Motion to Supplement I-R.C.P. 69,80 / Fxled apr5
<3, ^Lt—
(4) Federal Sugary/Default Filed on OCT 25,2012
(5) summary Default/Atascosa County Filed DEC 6, 2012
(6) interogatories to Defendant Filed May 23, 2012
                                            Civil Action Ko:




                                                            §

                    David Allan Edwards        #907246      §
                    Sllis Unit,    1697    FB2 980
                    Huntsville,    Texas 77343              §
                     i                                      §
                     ;       Plaintiff                                  In the   81sfc/218TH

                                                                        Judicial Dist.        Court,
                                                                        Atascoss   County,          Texas

                                  v.

                                                            §                      FH.SL
                                                                                   U4RGARET E. UT7LETON. DISTRJCT
                    County of Atascosa,        District     §

                    attorney of Atascosa Countv,
                    budge over Court, Sheriff of            §
                                                                                         FEB 2 8 2012
                    atascosa   County                       §
                    1 •      Defendants
                                                            §




                                         Plaintiffs Due Course of Law Complaint

                t



                ■         To Honorable Judge of said Court,      Comes now David Allan Edwards,

                , and will     show as    follows,




            j                                            I Discovery


            i




                          Discovery in this cause shall be conducted under Level 2, pursuant

        ,           to T.R.C.P.   190.3    (Texas Rules Civil Procedure)




                                                     II Jurisdiction




    ,                     This is civil action authorized to redress the deprivations under
i


                    Color of State Law of Civil Rights secured by the Due Course of Law in
i                                                                                              "*

■                   Conjunction with the     Constitution of the United States.
                                                 " 2-02-G185-CTA                                    O
                      ai-s-ii action sics.                               _m                     iCK L«
                                                                       MARGARET E U7TLET0M DISTRICT OERit



                                                                              ??H    - 5

Tjavtd Allan Edwards #5072*6
SlliS Unit 1697 ?B 9SG
Bustsvllie.* Texas 7734j

         Plaintiff
                                                          the      8Ist/2ISth
                                         s                icic:! Distc        Cour
                                         §


          of
Attoraey o£ ataeo           ?^
■Judge ever- coart.-Sherxfi-
ataScosa CoustY.- Qiuaty Courr
of    Commissioners of     Hfeaecosa
 bounty/efc.alrDr-Gerald       B.

 Phillips .Physicias.      ^c
 Jail, Atascosa CouE
 Capacity

          Defendants                         §




                                                              ,?   69,30




  -re So-icrable Judge       £ saia


                                                       is i
               sa»'        s"w 2d 53'as a ?ro se liti
           stringent standards than for.al plaaaings araftad by rea

     lawyers "See SVSSiSasa, 819 S-W 26 206.


                                       I DI-SCOlflEI


                                       shall be conducted under Lavsl 2
        Discovery in this       case

                  T.R-C.P 1S0-3        (Texas Ruiea civil P.
                                                             A. Signs
3 Complete items 1,2, and 3. Also complete
   item 4 if Restricted Delivery is desired.
a Print your name and address on the reverse
   so that we can return the card to you.                    B. Received             mtadNsms)         IJSpate oi Delivery
a Attach this card to the back of the rnailpiece.
  or on the front if space permits.
                                                             D. is delivery address different from item 1?
•s.._Articlo Addressed to:          /\   \_    Jj                  If YES. enter dolivaiy addrass below.        No




                                                                 3. SarviceType
                                                             '      D Csitined Mail     D express Mail
                                                                    □ Registered        D Return Receipt for Merchandise
                                                                    D Insured Mail      D C.O.D.
                                                                 4. Restricted Delivery? (Extrz Pea)          D Yas

2. Article Number
    (Transfer from service label)                   7D11 USD DDD1
                                                                                                             102595-01-M-2S03
PS Form 3811, August 2001                       Domestic Return Receipt
                                  Civil Action Mo:12-02-01g5-i\/A




David Allan Edwards 8507246
                                                 §
Ellis Unit,I967 FM 980
Hunfsvllle, Texas 77343                          §
                                                 §
                                                 §
        Plaintiff
                                                 §

         V                                       §
                                                 §                   in the Slst/218th
                                                 §                  judicial Dlst. Court
                                                 §                  Atasccsa County. Texas
County of Atascosa, District
Attorney of Atascosa County.
                                                 §
judge over Court, Sheriff of
Atascosa County, County Court                    §                     mm      IO
                                                 §
                                                                       MARGARET E UmETON. DISTRICT
                                                                                                 T CLERK
                                                                                                   CERK
of Commissioners of Atascosa
County ,et a)., Dr. Gerald B.
Phillips, Physician of County                    §                            OCT 2 4 2012
                                                 §
Jail, Atascosa County, individual
                                                                                                 IACO..TX
Capacity                                          §                    ai
                                                                                                  DEPUTY
                                                                      BY.
                                                  5


        Defendants




                    REIMSTATEMEKT FROH REMOVAL T.R.C.P.                237 a FOR

          MOTION TO SUPPLEMENT T.R.CP. 69,80 AND / OR SUMMARY /
                           DEFAULT UM3ER T.R.CP.            237, 239., 166


 Now comes D&VID ALLAH EDRfARDS, who is indigent. I have no material
 wealth,      no money and no income from any source to.pay fees or cost
 attorney,etc. See,T.R.CP. 145, who is incarcerated and Pro se ,
 See,    ARMSTRONG, 881, S.W.          2<3 53, as Pro se litigant I'm subject                          to
 " less stringent standards than formal pleadings drafted by real
 lawyers       !    See,   SPELLMAN,    819,S.W.      2d   206.

 On Febuary 28th,2012,              Ifiled the Original Due Process Complaint and

 timely served all defendants. On April 5th,2012, I filed Motion To
 Supplement T.R.CP. 69,                80, and timely served ail defendants. The
 District Attorney filed a Motion to Remove there after and was the
 OBiLY DEFENDANT,           that responed to filings, ALL OTHERS are in DEFAULT.
 See,    REK&MD ORDER,          No.SA-12-CA-285-OG          /   10/11/2012-
c Complete items 1,2, and 3. Also complete                A.
  item 4 if Restricted Delivery is desired.                                                               D Agent
a Print your name and address on the reverse                                                              G Adaresseo
  so that we can return the card to you.                  B;/J^eceived by (Panted Name)-           C. Date of Delivery
o Attach this card to the back of the maDpiece,
   or on the front if space permits.
                                                          0. Is delivery address different from item i?   D Yes
". Article Addressed to:
                                                             If YES, enter delivery address below:        D No




                                                          3. Service Type
                                                               D Certified Mall    Q Express Mall
                                                               D Registered        D Rsturn Receipt for Merchandise
                                                               D Insured Mail      D C.O.D.
                                                          4. Restricted Oeliveiy? (Exi/a res)              □ Yes

2. Article Number
   (Transfer from service label)-   ■7QDT     Q82D      QQDD                      LS15
PS Form 3811. August 2001                   Domestic Return Receipt                                       102595-O1-M-2503
                                UE1TED STAGES DISTRICT            COSP.r

                                  WES-TSEK DISTRICT OF TE2&S

                                       S&H AEPOHIO DIVISION

                                                                                 OCT 2 5 2012
D&VXD ALLSia S3SaaRES # 307246                                        CLERK, U.S. DiJSJKiCT COURT
                                                                      WSSTERW DISTRICT.-pF TEXAS
ELLIS OKJia?.- 1697 Wi 980                         §
EOSHSVILLE, O^&S 77343                             n
                                                                                         DEP.UTY CLERK

                                                   s

                                                   i
         —"if—


                                                         dVZL ACSIOK NDS         Sfi.-12-C&-O2S5-QS
         OF &IS3C0S&,? DISTRICT
A530BWEY OP M&S00S& COTBEfr
JUDGE OVER OOORTj SERIEP OF
ATASCOSA CaDtlECIj <XOKTT COURT
OF C0MEESSIOHE8S OF AfCSSOOSa                       §
C30DNTT» SD SLr OR. (^EifiLD 5.                     S
PHILLIPS, PHZSlCiaBI OF GOOSES^                     §
JAIL, A32&SGOS& CCRSHSSt                            §
                                                    i
                                                    §
                                                    s




                        / OR                           : F.R-C.P, 50^55.^56., ALL

                                OF flaSSCOSA, RBB1E H. PB^ft/ 3fclKK.U# OF JfflBSOOSft
         KILEiaMS/                     000H3:, S5SLL& SflSOK?/ COIHSgg 0305!? OF

                 codms-.- soes sili^fie.- wteeibb               * bSEDDIS              ^ laBLDoag cods /

        PB25ICZfiJ3 OF O0iB3Tg J»IE« DR. GB&SD B. PHIELIPS, ISDIITDD&L C&PACITg



 Nov:   Comas, DAYX5 a.SSiAlg 5DWARDS.-            I    have   nc mafcs-ia.1          »aolth,no   money

 and      no        income from any aource to pay fee!s or cost,                            attorney.•

 etc.    See T.R.CP.             145 who is incarcerated and Pro se;                      See ARMSTRONG.

 881.. S-W.2d.-53,         as    Pro   ss   litigant I'm       subject      to    "    lass stringent

 standards          than        formal      pleadings       draftee    by    real       lawyers."     See

 SPELLMAH / 819 / S. W. 2d .. 206
                                                                                                  ©Agent
 a Print your name and address on the reveres
                                                                                                      Addressee
in

     or on the front it space permits.
                                                         D-BoetweryariarBsgdHferiitlromftomi? D Yos
                                                            "YES'enterdeHv8'y address Mow         ^




                                                         3. Service Typa
                                                           jS'certffled Mall   D egress Man
                                                           Q Reglstowi         Q Rehu,, Recelptfor Merchandise
                                                           □ Insured MaH       D

2. Arttete Number
   <7?ansfer#oms                         7D11   1S7D      DDD2       5SDT      38ST
PS Form 3811, February 2004                Domestic Rslum Receipt




                                                        :au\ V
                                                                                               i   ;   * 'j         7 '


                                                                                            "if1.1 U oo.oo«xk*


David Alian Edwards #90724§
Ellis Unit,1967 FM 980                               §
Hunfcsville, Texas 7734S                             §


        Piaintiff


         V                                           s
                                                     §                         intheglrt/21Sth
                                                                           iudicia! Dist. Court
                                                                           Atascosa County, Tesss
County of Atascosa,- District
Attorney of Atascoss County.-                        §
judge over Court, Sheriff of                         §
                                                      §
Atascosa County, County Coust
of Commissioners of Atascosa
County ,et al., Dr. Gerald B.
Phillips, Physician of County
Jaii, Atascosa County, individual
Capacity


         Defendants




   SPMK&RY AMD/OR DEFAULT JUDGEMENT UNDER ToR.CF. 166,237,238,239
    DISTRICT ATTORNEY OF ATASCOSA ? REME PEKA/SHERIFF OF ATASCOSA
    COUHTY, TOMMY WILLIAMS/JUDGE OVER COURTrSTEZ-LA SASOM/COUNTY
        COORT    OF COMMISSIOHERf ATASCOSA COOHTYjLOH GILLESPXS/WILZ.XAH

                              TORAHS,FREDDIE OGDEK,WELDOH                      CODE




  Wow        comes    DAVID        ALLAN EDWARDSc           I     have         no     material                wealth,

  no     money        and     no     income     from        any    source       to    pay   fees         or     cost.,

  attorney,           etc.     see        T.R.c.P-        145     who     is    incarcerated and                  Pro


  se,    See ARMSTRONG,881,3.W.2d                    53,        as Pro se Litigant I'm subject

  to     "     less       stringent         standards           than     formal       pleadings               drafted

  by    real    lawyers."          See    SPELLMAN,819,S.W.Zd             206.



  Plaintiff           moves        this     Court     for a       judgement by default in                        this

  action,           and     show     that      the REINSTATEMENT FROM REMOVAL                                  in the




                                    OSP.S
                           i-l Action Mo: 12-02-0185-CVit
                                                            FLED.                O'CLOCK ^   hi
                                                                      E UTTLETOH DISTRICT O£BK




David fillan Edwards #907246                                        MAY 2 3 2012
Ellis Unit ..1697 PM.980                 §
Euntsville,Texas 77343                   §
                                         §
                                         §
       Plaintiff
                                         §
           -V-


                                                   in the    81st/218th
County of Atascosa,-District
                                         §         Judicial Dist.court
Attorney o£ Atascosa Countyc
                                                   Atascosa         County/Tesas
Judge over CourtfSheriff of
Atascosa    County/county court
of   Coamissioners    of   Atascosa
                                         §
County,et al»*Dr.Gerald B-
Phillips,Physician of        County
                                         §
Jail.Atascosa County,Individual
                                         §
Capacity-
                                         §
         Defendants




        Plaintiffs First Set of Interrogatories to Defendants



     In accordance with Discovery Level 2 and t.R.cp.190.3

procedure,Plaintiff request that Defendant,County Commissioners

 Goartj Atascosa County .-answer the following interrogatories under

 oath,and that the answers be signed by the person making them and
 be served on Plaintiff within 30 days of service of these interr

 ogatories.



     If you cannot answer the following interrogatories in full

 after exercising due diligence to secure the information to do so
 ,so state and answer to the extent possible,specifying your in

 ability to answer the remainder and stating what ever information

 or knowledge you have concerning the unanswered portions.
        EXHIBIT




APPEAL FILED BY COUNTY- ATTORNEY OP ATASCOSA

       Mr. ARRIAGA IN THE FOURTH COA
                                                                                       ACCEPTED
                                                                                  0-4-14-00612-0.
                                                                        FOURTH COURT OF APPEAL:
                                                                             SAW ANTONIO. TEXAS
                                                                              1/20/2015 4:48>!0P;.
                                                                                    keith h0t7lh
                                                                                           cler;


   ORAL ARGUMENT CONDITIONALLY REQUESTED

                    NO. 04-14-00612-CV
                                                                FILED IN
                                                          4th COURT OF APPPAI S
                                                           SAN ANTONIO, TEXAS
             IN THE COURT OF APPEALS                      01/20/2015 4:48:40 PM
       FOR THE FOURTH DISTRICT OF TEXAS                      KEITH E. HOTTLE
             AT SAN ANTONIO, TEXAS                                Clerk


               DAVID ALLAN EDWARDS,
                         Appellant




        SHERIFF OF COUNTY OF ATASCOSA,
                          Appellee.



       On Appeal from the 81st Judicial District Court.
                   Atascosa County. Texas
               Cause No. 12-02-0185-CVA
          The Honorable Thomas F. Lee Presiding



BRIEF OF APPELLEE SHERIFF OF COUNTY OF ATASCOSA



                   Respectfully submitted.


                                                           Lucinda A. Vickers
                                                  I ucinda.vickers@acao-tx.ort;
                                                       Texas Bar No. 16300800
                                                              Dennis Arriaga
                                                   dennis.arriaga@acao-tx.org
                                                      Texas Bar No. 24068021
                           ATASCOSA COUNTY ATTORNEY'S OFFICE
                                              ft\ Courthouse Circle Drive #3-B
                                                      Jourdanton, Texas 78026
                                                            TEL: 830-769-3573
                                                           FAX: 830-769-2757

                                               COUNSEL FOR APPELLEE
                                    NO. 04-14-00612-CV




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



                                DAVID ALLAN EDWARDS,
                                          Appellant,


                                               v.



                         SHERIFF OF COUNTY OF ATASCOSA,
                                           Appellee.




                        On Appeal from the 81st Judicial District CourL
                                    Atascosa County. Texas
                                 Cause No. 12-02-0185-CVA
                            The Honorable Thomas F. Lee Presiding



                         IDENTITY OF PARTIES AND COUNSEL



       Pursuant to rule 38.1(a) of the Texas Rules of Appellate Procedure, the following is a list

of the names and addresses of all parties to the trial court's judgment or order appealed from and


their counsel:


Appellant:                                                  David Allen Edwards

Counsel Pro Se
For Appellant:                                              David Allen Edwards #907246
                                                            Ellis Unit, 697 FM 980
                                                             Huntsville. Texas 77343

Appellee:                                                    Sheriff of County of Atascosa

Appellate Counsel
For Appellee:                                                Lucinda A. Vickers
                                                             County Attorney
                                                             Dennis Arriaga
                         Assistant County Attorney
                         Atascosa County Attorney's Office
                         2\ Courthouse Circle Drive #3-B
                         Jourdanton. Texas 78026


Trial Counsel
for Appellee:            Lucinda A. Vickers
                         County Attorney-
                         Dennis Arriaga
                         Assistant County Attorney
                         Atascosa County Attorney's Office
                         #1 Courthouse Circle Drive #3-B
                         Jourdanton, Texas 78026


Defendant in
Trial Court:             Gerald B. Phillips, M.D.

Counsel for Defendant:   Rosemary L. Hollan
                         Hollan Law Firm. P.C.
                         711 Navarro. Suite 250
                         San Antonio. Texas 78205


Defendant in
Trial Court:             District Attorney ofAtascosa County


Counsel for Defendant:    Dannick Villasenor-Hernandez
                          Brandon E. Strey
                          Plunkett & Griesenbeck, Inc.
                          1635 RE. Loop 410. Suite 900
                          San Antonio. Texas 78209
                                       TABLE OF CONTENTS


                                                                       Page
     IDENTITY OF PARTIES AND COUNSEL .
                                                                                 i
     TABLE OF CONTENTS
                                                                            iii
     INDEX OF AUTHORITIES
                                                                                V
     STATEMENT OF THE CASE
                                                                             2

  STATEMENT REGARDING ORAL ARGUMENT .
                                                                             3

  ISSUES PRESENTED
                                                                             3

 STATEMENT OF FACTS ..

         A.      Edwards's Complaint

         B.      Edwards's Motion for No-Answer Default Judgment            ^l




         C.      Sheriffs Motion for Summary Judgment
         D.      The Trial Court Hearing on The Motions                     8

         E.      Edwards's Post-Judgment Motions and Appeal             n
 SUMMARY OF THE ARGUMENT
                                                                        11
ARGUMENT AND AUTHORITIES

I.       Objections to Appellant's Brief ...
                                                                       13

H.       Sheriff Answered Edwards's Suit
                                                                       13

         A.     Trial Court Could Not Properly Render a No-Answer
                Default Judgment Against Sheriff
                                                                       13

        B.      Notice ofRemoval Did Not Defeat Sheriffs Answer        15
III.    Edwards Received Timely Notice of Hearing on Sheriffs MSJ      18
IV.     Trial Court Correctly Granted Sheriffs MSJ Because Edwards's
        Claims Are Barred
                                                                       19


                                               in
     A.   Standard of Review                                                   20


     B.   Edwards's Suit is Barred by Four-Year Statute of Limitations         21

          1.     Edwards's Suit Does Not Allege a Specific Cause of Action
                 Against Sheriff                                               21


          2.     The Four-Year Residual Statute of Limitation Period Applies   21

          3.     Edwards' Claims Are Barred                                    22

          4.     Neither the Discovery Rule Nor Fraudulent Concealment Can
                 Save Edwards's Claims                                         23

     C.   Even if Edwards's Causes of Action Could Be Cast as a Section 1983
          Claim. His Claims Are Barred                                         .26

CONCLUSION AND PRAYER                                                           28

CERTIFICATE OF COMPLIANCE                                                      29

CERTIFICATE OF SERVICE                                                          29

APPENDIX TO BRIEF OF APPELLEE                                                   30




                                          IV
                                     INDEX OF AUTHQRIES

Case
                                                                           Paaefs)

Advent Trust Co. v. Hyder.
        !2 S.W.3d 534 (Tex. App.—San Antonio 1999, pet. denied)                22

AT&T Corp. v. Rylamler,
        2 S.W.3d 546 (Tex. App.—Austin 1OQQ. pet. denied)                      24

Baker v. McCollan.
        443 U.S. 137 (1979)                                                    27

Benefit Planners v. Rencare, Ltd..
        81 S.W.3d 855 (Tex. App.—San Antonio 2002. pet. denied)                  9

BP Am. Prod. Co. v. Marshall
      342 S.W.3d 59 (Tex. 2011)                                             23. 24

Collins v. City ofHarker Heights.
        112 S. Ct. 1061 (1992)                                                 27

Davis v. James A. IV. & Houston Reporting Servs.,
        433 S.W.3d 101 (Tex. App.—Houston [1st Dist.] 2014, pet. denied)    15:18

Davis v. Jefferies,
        764 S.W.2d 559 (Tex. 1989)                                             15

Doe v. Taylor Indep. Sch. Dist..
        15 F.3d443 (5th Cir. 1994)                                             27

E.D. Sys. Corp. v. Southwestern Bed Tel. Co
        674 F.2d 453 (5th Cir. 1982)                                           16

Haniin v. Straub,
        109 S. Ct. 1998 (1989)                                                 77

In the Interest ofER.,

        385 S.W.3d 552 (Tex. 2012)                                             14

Jackson v. Johnson.
       950 F.2d 263 (5th Cir. 1992)                                            27

Jefferson v. Jones.
       74 Tex. 635 (Tex. 1889)                                                 15
 KPMG Peat Maverick v. Harrison CoumvHous Fin Corn
         988 S.W.2d 749 (Tex. 1999)       .*.          '.    /"'
 KnykendaU v. Beverly.
         436 S.W.3d 809 (Tex. App.-Texarkana 2014, no pet.)               ]9
 Lear Siegler, Inc. v. Perez.
         819S.W.2d470(Tex 1991)
                                     ;                                    20
 lewis v. Blake.
        876 S.W.2d 314 (Tex. 1994)                                   j

 Moreno v. Sterling Drug, Inc..
        787 S.W.2d 348 (Tex. 1990)                                        ,,

 Morriss v. Enron Oil & Gas Co..
        948 S.W.2d 858 (Tex. App.—San Antonio 1997, no pet.)              n
 Murray v. 0 &A Express, Inc.,
        630 S.W.2d 633 (Tex. 1982)                                        n

 Owens v. Okure.
        488 U.S. 235 (1989)

Quaestor Invs., Inc. v. Chiapas
        997 S.W.2d 226 (Tex. 1999)

Ross v. Nat 7 Ctr. For the EmpL ofthe Disabled
        197 S.W.3d 795 (Tex. 2006)

Santex Roofing & Sheet Metal. Inc. v. Venture Steel. Inc..
       737 S.W.2d 55 (Tex. App.—San Antonio 1987, no writ)               i4
Shah v. Moss.
       67 S.W.3d 836 (Tex. 2001)
                                                                   2{j. 2.h

Spencer v. Seagoville,

       700 S.W.2d 953 (Tex. App.-Dallas 1985, no writ)                   0J
Stoner v. Thompson,
       578 S.W.2d 679 (Tex. 1979)

Texas Nat. Res. Conserv. Comm 'n v. Sierra Club
       70S.W.3d809(Tex.2002)...
                                                                         14

Toliver v. Dallas Fort Worth Hasp. Council,


                                                VI
        198 S.W.3d 444 (Tex. App.—Dallas 2006, no pet.)                             17

Velsicol Chem. Corp. v. Winorgrad,
        956 S.W.2d 529 (Tex. 1997)                                                 25

Werner v. Cohvell.
        909 S.W.2d 866 (Tex. 1995)                                                 14

Wilson v. Dunn,
        197 S.W.3d 795 (Tex. 2006)                                                   9

Wright v. Greenberg.
        2 S.W.3d 666 (Tex. App.—Houston [14th Dist.] 1999, pet. denied)         24,25

Statutes                                                                       Page(s)

28 U.S.C § 1446                                                                     16


42 U.S.C § 1983                                                                    26


Tex. Civ. Prac. & Rem. Code § 16.051                                               22


Rules                                                                          Pagefs)

Tex. R. App. P. 9.4                                                              1, 29

Tex. R. App. P. 38                                                                   1


Tex. R. App. P. 38.1                                                                 i


Tex. R. App. P. 38.2                                                               31

Tex. R. App. P. 39.1                                                      •.         3


Tex. R. App. P. 39.7                                                                 3

Tex. R. Civ. P. 21a                                                                 18


Tex. R. Civ. P. 94                                                                  14


Tex. R. Civ. P. 99                                                              14.15

Tex. R. Civ. P. 106                                                                 14

Tex. R. Civ. P. 107                                                                 15




                                              VII
Tex. R. Civ. P. 109             14

Tex. R. Civ. P. 109a            14


Tex. R. Civ. P. 124             14

Tex. R. Civ. P. 166a            18

Tex. R. Civ. P. 237a            16

Tex. R. Civ. P. 239           14. i




                       VIII
                                      NO. 04-14-00612-CV



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



                                  DAVID ALLAN EDWARDS,
                                            Appellant


                                                 v.




                          SHERIFF OF COUNTY OF ATASCOSA,
                                             Appellee.




                         On Appeal from the 81st Judicial District Court,
                                     Atascosa County, Texas
                                   Cause No. 12-02-0185-CVA
                             The Honorable Thomas F. Lee Presiding


             BRIEF OF APPELLEE SHERIFF OF COUNTY OF ATASCOSA


TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS:

       Appellee Sheriff of County of Atascosa ("Sheriff or "Appellee"), submits this Brief of

Appellee in accordance with rules 9.4 and 38 oflhe Texas Rules of Appellate Procedure and all

local rules of this Court. In opposition to the appeal by David Allen Edwards ("Edwards" or

"Appellant"), Appellee urges this Court to affirm the trial court's order granting Appellee's Motion

for Summary Judgment and Motion to Sever.
                                ■STATEMENT OF THE CASE

        Appellant is a pro se inmate of the Texas Department of Criminal Justice. (T. Clerk R. 56.

61)'. Appellant initiated this suit on February 28,2012, when Appellant filed suit against various

government defendants in the 81st/218th Judicial District Court of Atascosa County. (T. Clerk R.

1-2). Appellant alleged that, while incarcerated at the Atascosa County Jail, he was improperly

medicated at the direction ofjail staff and administrators. (T. Clerk R. 3-7). Appellant alleged

thai the inadequate medical care proximaiely caused him harm. (T. Clerk R. 10). On January 7.

2014, Appellant filed a motion for no-answer default judgment against Appellee and the Atascosa

County Commissioners' Court. (T. Clerk R. Vol. 2, 400). Appellee filed., on April 3? 2014. his

Motion for Summary Judgment and Motion to Sever (hereinafter "MSJ"). (S. Clerk R. 888)*.

Both. Appellant's and Appellee's motions were heard by the trial court on May 9, 2014. (Rep. R.

3-4).


        On May 10, 2014. the trial court signed an order granting Appellee's motion for summary

judgment and ordered thai Appellant recover nothing from Appellee. (Clerk R. 1). The court also

granted Appellee's motion for severance (Clerk R. I) and. on June 13. 2014, an order was entered

wherein the trial court denied Appellant's motion for default judgment. (Clerk R. 46). Appellant

now appeals the order of the trial court granting Appellee summary judgment and severance.

(Clerk R. 56).




: Appellee Sheriff will refer to the Clerk's Record filed with the Court on August 28, 2014, as
(Clerk R. [page no.]), the Supplemental Clerk's Record filed with the Court on January 14. 2015,
as (S. Clerk R. [page no.]), the Clerk's Record filed with the Court on June 28. 2013, and
transferred from Court of Appeals No. 04-13-00725-CV to this cause on January 7, 2015. as (T.
Clerk R. [page no.]), and the Clerk's Record. Volume 2 of 2. delivered to the Court on June 25.
2014, and transferred from Court of Appeals No. 04-13-00725-CV to this cause on lanuarv 7
2015. as (T. Clerk R. Vol. 2, [page no.]).
                      STATEMENT REGARDING ORAL ARGUMENT

        Appellant David Allen Edwards did not request oral argument in his opening brief. Should

the Court grant oral argument, and only then. Appellee Sheriff of Count}- of Atascosa respectfully

requests oral argument in this case. It is Appellee's belief that consideration ofthe issues presented

would not be aided, specifically, by oral argument as such arguments can be adequately articulated
within the appellate briefs. Tex. R. App. P. 39.1. 39.7.

                                      ISSUES PRESENTED

        1. Did the trial court correctly deny Edwards!s motion for no-answer default judgment,

       where Sheriff filed an answer on April 4.2012, the same day the notice of removal was

       tiled in state court, but prior to the filing of the notice of removal?

       2. Did Edwards receive timely notice of the hearing on Sheriffs motion for summary

       judgment, where Sheriff mailed the hearing notice return receipt requested thirty-five days

       prior to the hearing and included a certificate of service?

       3. Did the trial court correctly grant Sheriffs motion for summary judgment on the basis

       that Edwards's suit was barred by the four-year residual statute of limitations period

       provided for in Section 16.05L Civil Practice and Remedies Code, where the pleadings

       filed by Edwards did not precisely or concisely demonstrate the causes of action relied

       upon or asserted by Edwards against Sheriff?

                                   STATEMENT OF FACTS


       ShenffofCounty ofAtascosa does not concur in Edwards's statement offacts2 and submits
{he following;




' Sheriff construes Edvvards^s "History of the Case'" as his Statement of the Case and Statement
of Facts. (Appellant Br. 1-2).
        A.      Edwards's Complaint


        Edwards, a pro se inmate incarcerated in the Texas Department of Criminal Justice, filed
 his -Plaintiffs Due Course of Law Complaint" on February 28. 2012, in the 81st/218th Judicial

District Court of Atascosa County. (T. Clerk R. 1). Edwards named the District Attorney of

Atascosa County, the "Judge over Court." the Sheriff, the County of Atascosa (T. Clerk R. 2), and.
on April 5, 2012, through a motion to supplement. Dr. Phillips and the Atascosa County

Commissioners' Court (hereinafter "Commissioners") as defendants in his suit. (T. Clerk R. 28).

        Edwards alleged, in his complaint, "deprivations under Color of State Law of Civil Rights

secured by the Due Course of Law in Conjunction with the Constitution of United States." (T.

Clerk R. 1). Edwards declared that upon release from Wiliford Hall iMedical Center, he was placed

into the custody of the Atascosa County Jail. (T. Clerk R. 3). Edwards declared that during his

incarceration at the Atascosa County JaiL and while he awaited trial, the Atascosa County Jail staff

substituted his prescribed medications for various narcotics without a prior medical evaluation.

(T. Clerk R. 3-4). Edwards alleged that he suffered anxiety, confusion, and behavioral problems

as a result of the psychotropic medications administered to him. (T. Clerk R. 3).

       Edwards stated that he was denied competent and professional medical sen-ices. (T. Clerk

R. 4-5). He claimed that the various narcotics caused him to be heavily sedated during his criminal

trial and he asserted that he was coerced into pleading guilty in his criminal trial. (T. Clerk R. 6).

Edwards alleged that he was never medically diagnosed with a disorder, never medically

evaluated, and that he never consented to the medications. (T. Clerk R. 9-10).

       Edwards contended that the County of Atascosa exercised indifference with regard to his

rights by. among other things, failing to oversee and train its court officers, failing to provide

competent counsel, and failing to provide professional medical care. (T. Clerk R. 8). Edwards
claimed that the Judge of Said Court. Stella Saxon, was indifferent to his rights by. among other


things, failing to appoint competent counsel, failing to provide a fair and impartial trial, and by


allowing false testimony to be entered into evidence. (T. Clerk R. 8-9). Edwards further alleged

that the District Attorney of Atascosa County, through Jackie Sparks, was indifferent to his rights


byr among other things, using false testimony and fictitious extraneous acts against him during his

criminal trial.   (T. Clerk R. 9).   Finally. Edwards stated that the Sheriff of County of Aiascosa,


Tommy Williams, was indifferent to his rights by denying him professional medical services and


by illegally prescribing and sedating him with medications such as Valium, Ambien, and Effexor


XR. (T. Clerk R. 9).

        Edwards claimed that his criminal plea was performed under illegally forced sedation and

that, as a whole, the named defendants conspired to deny him the Due Course of Law. (T. Clerk


R. 10). Edwards asserted that the pattern of conduct caused him substantial and irreparable mental


anguish. (T. Clerk R. 10).


         Edwards prayed for a declaratory judgment declaring the defendants" acts violated his

rights under the Texas Constitution and die laws of the United States, a permanent injunction

ordering the defendants to admit the acts committed, an order directing the defendants to comply

with the Constitution, compensation for the costs of suit, including reasonable attorney's fees and


 for all other proper relief. (T. Clerk R. 11).

         B.       Edwards's Motion for No-Answer Default Judgment


         On January 7, 2014. Edwards filed his motion entitled "Motion to Compel Judgment for

 No-Answer Default and/or Summary Default Judgment with Severances Pursuant to T.R.C.P. 41.

 166a(c), 237, 237a. 239, 240, 268 For Defendant's County Court of Commissioners. Atascosa
County, Lon Gillespie, William Torans, Freddie Ogden, Weldon Cude, Atascosa County Sheriff.
Tommy Williams."3 (T. Clerk R. Vol. 2? 400).

        In his motion. Edwards asserted that this suit was fried on February 28,2012. (T. Clerk R.

Vol. 2. 401). Edwards stated that on March 30, 2012. the District Attorney filed for removal to

federal court. (T. Clerk R. Vol. 2,401). Edwards claimed that the SherifiTiled an original answer
on April 4, 2012. (T. Clerk R. Vol. 2, 401). Edwards further stated that on October 24. 2012. a

remand order was signed by the federal court. (T. Clerk R. Vol. 2, 401). He asserted that he

properly served all defendants with a copy of the reinstatement order. (T. Clerk R. Vol. 2, 401).

        Edwards claimed that, after reinstatement, the first hearing held by the trial court was on

April 17, 2013, in which neither Sheriff nor Commissioners made an appearance. (T. Cleric R.

Vol. 2,401). Edwards further claimed that a second hearing was held on September 26, 2013, and

that neither defendant made an appearance at that hearing. (T. Clerk R. Vol. 2,401).

        Edwards argued, in his motion, that a no-answer default judgment was proper because the

Sheriff did not file an appropriate and timely answer in response to this suit. (T. Clerk R. Vol. 2.

402-03). In support, Edwards argued that more than twenty days elapsed since the date the Sheriff

and Commissioners were served with a copy of die reinstatement. (T. Clerk R. Vol. 2. 402-03).

Furthermore, Edwards complained that neither Sheriff nor Commissioners addressed or answered

the pleadings filed by him in this suit. (T. Clerk R. Vol. 2,402-03).

       Edwards asked the trial court to grant a no-answer default judgment against Sheriff and

Commissioners, and prayed for the costs of suit, including reasonable attorney's fees, and all other
relief. (T. Clerk R. Vol. 2,403).

       C.      Sheriff's Motion for Summary Judgment




1 For ease of reading, Sheriff will refer to this motion as Edwards's motion for default judgment.
                                                 6
        On April 4, 2014, Sheriff filed with the clerk of the trial court his MSJ. (S. Clerk R. 4j.

On April 3, 2014, Edwards was served by certified mail, return receipt requested, with Sheriffs
MSJ. (S. Clerk R. 10).

        In his motion, Sheriff acknowledged that while Edwards awaited criminal prosecution.

Edwards was in the custody of the Atascoga County Jail. (§. Clerk R. 4-5. 13-15). Sheriff stated

that, after various transfers in and out of the Atascosa County Jail, Edwards was finally transferred

on November 6, 2000r to the Texas Department of Criminal Justice. (S. Clerk R. 7.11). As

support. Sheriff attached the affidavit of Captain Martin Gonzales, the jail administrator and

custodian of records, attesting to Edwards's custody in the Atascosa County Jail. (S. Clerk R. 11).

Captain Gonzales attested that the last date of incarceration of Edwards, in the Atascosa County-

Jail, was November 6,2000. (S. Clerk R. 11).

        Sheriff complained that Edvvards's claims against the Sheriff were unclear and that the

pleadings failed to state a specific cause of action. (S. Clerk R. 5). Because no specific statute

was cited for any wrongdoing or injury suffered by Edwards. Sheriff argued that the accrual date

for any supposed injury or wrongdoing was inescapably restricted to a date Edwards was

incarcerated in the Atascosa County Jail. (S. Clerk R. 7). Thus, Sheriff argued, EdwardsTs cause

of action began to accrue on November 6, 2000, at the latest. (S. Clerk R. 7).

       Sheriff claimed that without any specific cause of action asserted by Edwards, the four-

year residual statute of limitation period, by default, applied. (S. Clerk R. 7-8). Sheriff contended

that the four-year statute of limitations barred Edwards' suit, filed on February 28, 2012. because

more than four years elapsed between the accrual of any potential cause of action, being no later

than November 6. 2000. and the date suit was filed. (S. Clerk R. 8).
         Sheriff recognized that the discovery rule, an exception to the general rule for the accrual
  of a cause of action, could toll the statute of limitation period., if applied. (S. Clerk R. 7). But
  Sheriff argued that Edwards was aware of any wrongdoing or injury when the act occurred and
 that Edwards failed to plead the discover)' rule or any other defensive theory that tolled the statute
 of limitations for the events thai formed the basis of this suit. (S. Clark R. 7-8).
         Sheriff argued that, as a matter of law, he was entitled to summary judgment because
 Edwards's lawsuit was barred by the four-year residual statute of limitation period. (S. Clerk R.
 8-9). Sheriff prayed for the court to grant the motion for summary judgment, as a matter of law,
 and that the trial court severjudgment in favor of Sheriff from the remaining suit. (S. Clerk R. 9).
        D.      The Trial Court Hearing on the Motions

        On May 9, 2014. the trial court held a hearing to consider Edwards" motion for no-answer
 default judgment and Sheriffs MSJ. (Rep.R.1). Edwards appeared in person. (Rep. R. 3).
        The court first considered arguments regarding Edwards' request for a no-answer default
judgment. (Rep. R. 4). Edwards argued that removal to federal court was filed on March 30.2012.
(Rep. R. 6). Edwards stated that the reinstatement was served on the Sheriff on October 25.2012.
(Rep. R. 6). Edwards claimed that since October 25, 2012, the Sheriff has failed to file an answer.
(Rep. R. 6). Edwards argued that he filed a certified copy of the order remanding the case and that
he gave written notice of the filing to all defendants. (Rep. R. 6). Edwards further argued that an
answerwasrequired to be filed by Sheriff within fifteen days fromthe date he received suchnotice.
(Rep. R. 17-18).

       The trial court then considered the second part ofEdwards' motion for summary judgment.
(Rep. R. 8). Edwards asked the trial court to render judgment in his favor, because Sheriff failed
to respond to his discovery requests. (Rep. R. 8).    Edwards suggested that anything less than a


complete answer to his discovery requests amounted to a failure to answer. (Rep. R. 8).

        In response to the no-answer default judgment request. Sheriff argued that an answer was

filed on behalf of the Sheriff, as the only county entity properly served with citation.4 (Rep. R. 9).

Sheriff urged that the answer filed on April 4,2012. constituted a sufficient answer and that Sheriff

was not required to file an additional answer when the case was remanded to state court. (Rep. R.

10).


        Additionally, Sheriff argued that he appeared by telephone at past hearings held during the

suit, but that he did not present any arguments, because the puiposes of those hearings did not

directly involve him. (Rep. R. 10).

        In addressing the discovery issue. Sheriff stated that a response or objection was. in fact,

filed for the discover}' requests filed by Edwards and directed to Sheriff. (Rep. R. 10).

        The court lastly considered Sheriffs motion for summary judgment. (Rep. R. 28). Sheriff

adopted the arguments articulated by counsel for District Attorney of Atascosa County. (Rep. R.

28). The argument rested on the premise that Edwards was last incarcerated at the Atascosa

County Jail in 2000. (Rep. R. 28-9). Sheriff argued that the four-year statute of limitations barred

Edwards?s suit, because Edwards' claims were brought beyond the four-year limitation period.



        1 Solely for the purposes of clarity, and without the intent to be construed, in any manner,
as an appearance on behalf of Alascosa County Commissioners" Court, Appellee notes that the
Atascosa County Commissioners' Court was not served with process in this suit. Absent service
ot process, an answer or an appearance by the Commissioners, the trial court did not have
jurisdiction over the defendant. Benefit Planners v. Rencare, Ltd, 81 S.W.Sd 855. 858 (Tex
App.—San Antonio 2002, pet. denied) (holding that because the trial court did not acquire in
personam jurisdiction, the trial court's judgment was void). A defendant's actual notice of the
pending litigation is insufficient and does not constitute proper service Ross v \'at 7 Ctr for the
Empi ofthe Disabled, 197 S.W.3d 795. 796-98 (Tex. 2006) (holding that without proper service
of process, a party has no duty to act. participate in court proceedings, or comply with anv
judgment rendered); Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990).
(Rep. R. 28-9). Edwards's suit was filed in 2012, more than four years after the accrual of any

justiciable cause of action. (Rep. R. 28-9). Sheriff complained that the causes of action asserted

by Edwards against the Sheriff were indiscernible and, thus, use of the four-year residual statute

of limitations was appropriate for this case. (Rep. R 28). Sheriff alleged that Edwards failed xo

plead the discovery rule or any other rule that would toll the accrual of the statute of limitations in

any pleading filed by Edwards. (Rep. R. 28).

        Edwards, in response, objected to Sheriff's MSJ; on the basis that he did not receive timely

nonce. (Rep. R. 30). Edwards claimed that he received notice of the MSJ hearing on April 23.

2014, which was less than twenty-one days prior to the hearing date. (Rep. R. 30).

       Sheriff argued that notice of the motion for summary judgment was properly served on

Edwards, because it was mailed to Edwards on April 3, 2014, and received by the Ellis Unit in

Huntsville, on April 9, 2014. (Rep. R. 30-31). The trial coun judge took note of and referenced

the certificate of service verifying service on April 3, 2014. (Rep. R. 30-31). Sheriff stated that

notice of the hearing was mailed to the Ellis Unit as the last known address for Edwards at the

time. (Rep. R. 32-33).


       The court overruled Edwards's objection. (Rep. R. 32). Edwards then argued that Sheriff

was responsible for the employees who gave perjured testimony during his criminal trial. (Rep. R

34). Edwards argued that the fraudulent concealment doctrine was applicable in this case and that

the doctrine prevented the four-year statute of limitation period from barring his suit. (Rep. R.

34).


       The trial court overruled Edwards's motion for default judgment.               (Rep. R. 35).

Meanwhile, the coun granted the motion for summary judgment filed by Sheriff. (Rep. R. 35).

On May 10. 2014, the court signed an order granting Sheriffs motion for summary judgment and


                                                 10
motion to sever. (Clerk R. 1). In the order, the court held that Edwards was to recover nothing

from the Sheriff by way of this suit. (Clerk R. 1).


       E.      Edwards's Post-Judgment Motions and Appeal


       On June 4. 2014, Edwards filed a motion for new trial, arguing that he was not properly


served with notice of the heaiing for the motion for summary judgment and that the Sheriff failed

to file an answer in the federal court, while the case was removed, or in the state court, after


remand. (Clerk R. 3). The Sheriff did not respond to Edwards's motion for new trial.


        On May 22T 2014, Edwards filed a request for findings of fact and conclusions of law. (T.


Clerk R. Vol. 2, 637). On June 19, 2014. Edwards filed a notice of past due findings of fact and


conclusions of law (Clerk R. 47), and on July 10,2014. he filed his third notice of past due findings


of fact and conclusions of law. (Clerk R. 51). The trial court did not enter findings of fact or

conclusions of law.


        Edwards filed his notice of appeal on August 28,2014 (Clerk R. 56), and his brief followed

on November 17. 2014. The Sheriff now responds.


                              SUMMARY OF THE ARGUMENT


        This Court should affirm the trial court's order granting Appellee's motion for summary

judgment and granting severance.

        The trial court judge correctly determined that Appellant was not entitled to a default

judgment against Appellee on the basis that Appellee failed to answer this suit. Appellee filed an


answer on April 4, 2012. (S. Clerk R. 24). The answer filed by Appellee in state court was a


sufficient answer in the case.   Prior to April 4, 2012, the trial court had not entered a default

judgment against Appellee, and, after such date, the trial court was barred from entering a no-


answer default judgment against Appellee. The notice of removal had no effect upon the answer




                                                 11
  filed by Appellee, and Appellee was not required to file a subsequent answer after removal or
  remand.



         The trial court correctly found and Appellee conclusively established that Appellant
 received timely notice of the hearing on Appellee's motion for summary judgment. Notice of the
 hearing was mailed by Appeilee to the Ellis Unit in Huntsville as the last known address for
 Appellant. Appellee mailed Appellant notice of the hearing on April 3. 2014. and an Amanda
 Beltran, at the Ellis Unit, signed for delivery ofthe notice on April 9.2014. The notice was mailed
 thirty-five days prior to the hearing date and received by the Ellis Unit twenty-nine days prior to
 the hearing date. Appellee attached a certificate of service to the Notice of Hearing reflecting mat
 Appellant was served on April 3. 2014. which constitutes prima facie evidence of proper service.
 Appellant did not provide any evidence reflecting a date of service other than April 3, 2014 or
 April 9, 2014. Therefore, Appellant had timely notice of the hearing on the Sheriffs summary
judgment morion.


        The .suran.myjudgn.en, evidence conclusively established that the las, comae, between
Appellan, and the Appellee occurred on November 6. 2000. when Appellant v* la« incarcera,ed
in .he Atascosa County Jail. Appellant's claims against Appellee are general in nMure and
superficially suggest that Appellee violated Appe.lan.'s due process rights through participation
in a conspiracy tha, provided Appellan. improper medical service, Consequent*, because no
Spe=inc cause of»c,ion wm verted by Appellant, his claims were subject .o the four-year residual
limilations period. Nearly fcvelve yea. dapsed before Appellant filed suit against Appcliee.
Appellant presented no evidence during the hearing to raise a lac, issue ,o defeat the statute of
limitations. The .rial court comely ruled that Appellant's claims were barred by .he four-vear



                                               12
 residual statute of limitations period found in section 16.051. Texas Civil Practice and Remedies

 Code. Therefore, Appellee was entitled to summary judgment.

         This Court should affirm the trial court's order granting Appellee's morion for summary

judgment and severance.

                               ARGUMENT AND AlITHORTTIFS

 1.     Objections to Appellant's Brief

         Prior to presenting the arguments and authorities provided by Appellee, Appellee objects

to the arguments and exhibits provided by Appellant to this Court that were never admitted into

evidence or argued during the summary judgment hearing held on May 9, 2014. Many of the

•Tacts" or "issues" that Appellant declares are outside of the record of this case. For example.

Appellant's second Exhibit C consists of declarations by Chelsea Marie Edwards Ogden, Roaer

Edwards, and Susan Edwards, an internet printout about the Fourth Administrative Judicial Region

and two internet article printouts discussing die trial court judge. (Appellant Br. Ex. C). Exhibit

E to Appellant's brief consists of three half-page leaflets containing handwritten notes by

Appellant, and an unknown individual. (Appellant Br. Ex. E). Exhibit G to Appellant's brief is a
Supplemental Notice of Intent to Use Extraneous Acts that was filed for use in Appellant's criminal

trial. (Appellant Br. Ex. G). These exhibits, and the "facts" or arguments made within them, were

never admitted as summary judgment evidence and are improperly before this Court.
II.     Sheriff Answered Edwards's Suit


        A.     Trial Court Could Not Properly Render a No-Answer Default Judgment
               Against Sheriff                                                            6

        In the first section to his Point of Error Number Tour, Appellant states that Appellee never

filed a proper answer to this suit in federal or state court. (Appellant Br. 8). Appellant argues that,

because Appellee did not file an answer in this suit, Appellee had no right to file his MSJ.

                                                  13
(Appellant Br. 8). Appellant insinuates that, in failing to file an answer, Appellee legally admitted

to the pleadings filed by Appellant. (Appellant Br. 81


       The process by which a plaintiff gives a defendant notice that it has been sued is referred

to as "service of citation.'" Texas Nat. Res. Conserv. Comm 'n v. Sierra Club, 70 S.\V.3d 809. 813

(Tex. 2002). When a copy of the citation and a copy of the petition are served to the defendant,

"service of process" is accomplished. See Tex. R. Civ. P. 99.


       Process may be served by United States certified mail, return receipt requested, by personal

delivery to the defendant, or by some method of substituted service authorized by a court order.

See Tex. R. Civ. P. 106, 109, 109a; see also In the Interest ofE.R.. 385 S.W.3d 552, 558-61 (Tex.

2012) (discussing sen-ice of citation by publication).        The record must demonstrate strict

compliance with the type of service used and a default judgment may not be taken against a

defendant unless the defendant was served with process, accepted process; or waived service of

process, and. thereafter, failed to file an answer or make an appearance in the proceedings. Tex.

R. Civ. P. 124,239; Werner v. Colweih 909 S.W.2d 866, 869-870 (Tex. 1995). The law detests

default judgments. Sanrex Roofing & Sheet Metal v. Venture Steel, Inc., 737 S.W.2d 55, 56-57

(lex. App.—San Antonio 1987, no writ) (discussing the reluctance of Texas courts to enter a

default judgment when certain forms of written pleadings have been filed by a defendant).

       After service of process, a defendant's answer must generally be filed by 10:00 a.m. on the

first Monday following the expiration of twenty days from the date of service. Tex. R. Civ. P.

99(b). An answer should contain a general denial denying the allegations in the plaintiffs petition,

and. if a defendant wishes to rely upon an affirmative defense, should specifically plead the

affirmative defenses he expects to rely upon. Tex. R. Civ. P. 94. An affirmative defense is an

independent reason why the plaintiff is not entitled to the relief requested. Id. If the defendant has




                                                 14
  not filed an answer by the time required to do so, the plaintiff may take a judgment by default
  agaxnst the defendant, as long as the return of service has been on file with the clerk for at least ten

  days. Tex. R. Civ. P. 107. 239. Nonetheless, a defendant has a right to file an answer at any time
  before a judgment by default has been entered by the court. Dam v. Jeffries, 764 S.\V.2d 559.
 560 (Tex. 1989); Jefferson v. Jones. 74 Tex. 635,636 (Tex. 1889). Upon answer by a defendant,
 the court can no longer enter a judgment by no-answer default. Davis v. James A. W. & Houston
 Report Sen,,, 433 S.W.3d 101, 108-09 (Tex. App.-Houston [1st Dist] 20.4. pe, denied)
 (quoting Jefferson v. Jones, 74 Tex. 635. 12 S.W. 749, 749 (Tex. 1889)).

         Appellee was served with citation on March 5. 2012, by mail. Pursuant to Texas Rule of
 Civil Procedure 99(b). Appellee's answer was due by March 26, 2012. Tex. R. Civ. P. Q9(b).
 Appellee, in fact, filed his answer on April 4.. 2O12: nine days after the required time to do so. (T.
 Clerk R. 24). In his answer, Appellee plead the affirmative defense that Appellant's suit was
 barred by the expiration of the statute of limitation period. (T. Clerk R. 24).

        Notwithstanding, the trial court had not announced a judgment by no-answer default in
fevor of Appellant and against Appellee prior to April 4, 2012. Appellee filed his answer to this
suit on April 4f 2012. which was, although ntne days after the required tune to do so. tnnely and
appropriate in the sense that it was filed prior to the entry of a default judgment. Appellants
argument that the trial court judge incorrectly denied his motion for no-answer default judgment
fail, because the fi.ed answer prohibited the tria, court from granting a no-answer default
judgment against Appellee. Davis, 433 S.W.3d at 108-09.

       B.      Notice of Removal Did Not Defeat Sheriffs Answer

       In the first section of his Point of Error Number Four. Appellant argues that Appellee did
not file an answer to this suit. (Appellant B, 7-8). Appellant acknowledges that Appellee filed


                                                 15
an answer on April 4,2012 (Clerk R. 58), but asserts that such an answer was insufficient, because

the answer was not filed in federal court after removal or in state court after remand. (Appellant

Br. 7-8).


        The procedure for removal of a cause of action to federal court is found at 28 U.S.C. §

1446. After filing a notice of removal in the federal court, the defendant seeking removal must

file a copy of the notice of removal in the state court. 28 U.S.C. § 1446(d). The filing of the notice

of removal in the state court effects the removal and the state court cannot proceed any llirther in

the case unless the case is remanded. Id. All action in state court is stayed while the case remains

removed, and the slate court has no power to act. E.D. Sys. Corp. v. Southwestern Ball Tel. Co.,

61A F.2d 453,458 (5th Cir. 1982).


        Upon remand, a remand order is executed and a certified copy of the order is sent to the

state court. Quaestor Invs.. Inc.. v. Chiapas, 997 S.W.2d 226, 228 (Tex. 1999). Remanding a case

to state court terminates the jurisdiction of the federal court. Id. When the federal court maiis a

certified copy of the remand order to the state court, jurisdiction re-vests in the state court. Id. at

229. The state court may then proceed with the case. Id. at 228.

       Rule 237a of the Texas Rules of Civil Procedure imposes a deadline for filing an answer if

an answer was not filed in state court prior to removal or in federal court after removal. The rule

provides:


       All such adverse parties shall have fifteen days from the receipt of such notice
       within which to file an answer. No default judgment shall be rendered against a
       part}' in a removed action remanded from federal court if that party filed an answer
       in federal court during removal.


Tex. R. Civ. P. 237a. Rule 237a does not establish a deadline to answer, in the sense that an answer

not filed by the deadline is waived, but provides a time cenain after which the plaintiff may move
for default judgment if no answer is filed. Toliver v. Dallas Fort Worth Hasp. Council. 198 S.W.3d

444.449 (Tex. App.—Dallas 2006, no pet.}.

        Here, notice of removal to the United States District Court. Western District of Texas. San

Antonio Division was filed with the clerk of the trial court on April 4. 2012. (T. Clerk R. 19).

Appellee's answer was filed in the trial conn on the same day. (T. Clerk R. 24). On October 10.

2012, a remand order was signed and the case was remanded to the District Court of Atascosa

County. (S. Clerk R. 30-32). Appellant filed notice of the remand order in the state court on

October 24, 2014. (T. Clerk R. 309).


       Appellee's answer was properly filed. By simple coincidence, the two documents were

tiled on the same date, but that in no way defeats the purpose or intent of the answer. The file

stamp on Appellee's answer reflects that it was filed at 3:09 p.m. (T. Clerk R. 24). The notice of

removal was file stamped at 4:46 p.m. on the same day. (T. Clerk R. 19). The notice of removal

had no consequence upon the answer filed by Appellee. When Appellee filed his answer, the state

district court had unfettered jurisdiction of the cause. It was not until 4:46 p.m., on April 4. 2012.

that the state district courfs jurisdiction was interrupted by the filing of the notice of removal.

Being that Appellee:s answer was filed approximately one and a hair hours prior to the federal

court acquiring jurisdiction, Appellee's answer was properly filed.

       No additional answer was required to be filed, either in federal or state court, by Appellee.

The April 4, 2012, answer filed by Appellee constituted a live pleading and remained in effect

upon the filing for removal to federal court, while the case was removed to federal court, and after

remand to state court. The pleading by Appellee was neither waived nor withdrawn by Appellee.




                                                 17
         Upon remand to state court the answer re-emerged as a live pleading when the state cour.
 reacquired jurisdiction of the case. With an answer on file in the state court, the trial court could
 no longer enter ajudgment by no-answer default against Appellee. Davis. 433 S.W.3d at 108-09.
         The Appellee conclusively established that he filed a timely answer to this suit. Because a
 secondary answer Was not required to be filed in federal court after removal. or in state cour1. after
 remand, the trial court correctly denied Appellant's motion for no-answer default judgment.

        This Court should affirm the trial court's order granting Appellee's motion for summary
 judgment.


 III.   Edwards Received Timely Notice of Hearing on Sheriff's MSJ

        In his Point of Error Number Two and Point of Error Number Five, Appellant contends
 that he did not receive timely notice of the scheduled hearing of the Appellee's summary judgment
 motion. (Appellant Br. 4, 12). Appellant asserts that he received notice of the hearing on April
23,2014. (Appellant Br. 4.12). Appellant complains that, based on the lack ofnotice, he properly
moved for a continuance, which the court improperly denied. (Appellant Br. 4).

        Texas Rule of Civil Procedure 166a provides that a non-movant is entitled to a minimum
of twenty-one days' notice of the date set for a summary judgment hearing. Tex. R. Civ. P. 166a.
However, when a motion and notice of a hearing are served by mail, three days are added, and.
they must be mailed at least twenty-four days before date of the hearing. Tex. R. Civ. P. 21 a; see
also z™& , Blake, 876 s.w.2d 314, 31(5 (Tex. 1994). Service by mail is accomplished when

the properly addressed document is deposited in the mail. Tex. R. Civ. P. 21a. With certain
limitations, every notice required by the rules of civil procedure may be served by certified or
registered mail to the party's last known address. Id. A written certificate of service by a party
constitutes prima facie evidence of proper service.        M    Absent proof of non.ecip, the


                                                18
  presumption has the force of a rule of law. Kuykendall v. Beverly, 436 S.W.3d 809, 813 (Tex.
  App.—Texarkana 2014. no pet.).


         Appellant did receive timely notice of the hearing on Appellee's motion for summary

 judgment. The MSJ filed by Appellee included a Notice of Hearing setting the hearing date for
 May 9, 2014. (S. Clerk R. 10). The summary judgment motion further contained a certificate of
 sen-ice stating that the motion was mailed to Appellant at the Ellis Unit in Huntsville. his las.
 known address at the time, by certified mail, return receipt requested, on April 3. 2014. <Rep. R.
 30-31: S. Clerk R. 10). This certificate of service constitutes prima racie evidence of service.
 Kuykendall, 436 S.W.3d at 813.


        The green domestic return receipt was signed for by Amanda Beltran on April 9, 2014.
 (Rep. R. 31). The summary judgment hearing was held on May 9. 2014. (Rep. R.I). Excluding
the day of mailing and the date of the hearing, Appellee's MSJ was heard thirty-five days after the

mailing of the notice of the hearing and twenty-nine days after receipt of the correspondence. No
fewer than twenty-four days intervened between the date the notice was mailed and the date the
hearing was conducted. Lewis, 876 S.W.2d at 316.

        The Notice of Hearing provided Appellant ample and adequate notice of the setting of

Appellee's motion for summary judgment. Appellant does not deny that he received the notice of
the hearing and he has offered no evidence rebutting the certificate of service, other than his
assertions that he did not receive the notice of the setting. The trial court correctly granted

Appellee's motion for summary judgment and this Court should affirm.
IV.    Trial Court Correctly Granted Sheriffs MSJ Because Edwards's Claims Are Barred
       In the second section to his Point of Error Number Four, Appellant asserts that Appellee
enlisted two employees to perjure themselves during Appellant's criminal trial through submission


                                               19
of a false extraneous offense report. (Appellant Br. 10). Appellant argues that the false extraneous

offense report violated his due process and civil rights. (Appellant Br. 10). He contends that the

act of submitting the false offense report was part of a conspiracy to incite the jury and cause the

jury to assess a harsher punishment. (Appellant Br. 10).

       The trial court correctly granted Appellee summary judgment, because Appellee

conclusively established that Appellant's claims were barred by the residual four-year limitations

period. The summary judgment evidence attached to Appellee's MSJ conclusively established

that any potential cause of action against Appellee necessarily accrued on or before November of

2000, when Appellant was last incarcerated in the Atascosa County Jail.         (S. Clerk R. 11-15).

Appellant does not assert any further contact between Appellant and Appellee beyond November

6,2000. that could form the basis of the allegations proclaimed in this suit.

       While Appellant does not clearly and concisely state a cause of action, his purported

allegations involve a conspiracy to deny him proper medical treatment that occurred approximately

twelve years prior to the filing of this suit. (T. Clerk. R. 3-9). Because the claims asserted by

Appellant exceed the four-year statute of limitations period, the claims are barred.

       A.      Standard of Review


       The standard for reviewing a summary judgment is whether the moving party carried its

burden to show that there is no genuine issue of material fact and that the moving party is entitled

to judgment as a matter of law. Lear Siegler. Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). A


defendant moving for summary judgment on an affirmative defense, such as a statute of limitation

defense, must prove each element of the affirmative defense. Shah v. Moss, 67 S.W.3d 836. 842

(Tex. 2001). In reviewing a trial court's summary judgment, the appellate court resolves all doubts

against the movant and reviews the evidence in the manner most favorable to the xion-niovant. Id.




                                                 20
        B.      Edwards's Suit Is Barred by Four-Year Statute of Limitations

                1.      Edwards's Suit Does Not Allege a Specific Cause of Action Against
                        Sheriff


        The plaintiffs petition defines the issues for trial. Murray v. O & A Express. Inc.. 630

S.W.2d 633:636 (Tex. 1982). The petition should provide sufficient facts as to provide fair notice

of the allegations asserted against the defendant. Id A plaintiff relying upon a statutory violation

should state that fact in the pleadings, if he is to recover on that basis, and identify the suitute relied

upon. Id. For a cause of action to be properly pleaded, sufficient facts must be provided, which

permit the trial court to determine with reasonable certainty the elements of the cause of action

and the relief sought. Stoner v. Thompson, 578 S.\V.2d 679, 683 (Tex. 1979).

        In his initial Due Course of Law Complaint. Appellant asserted that Appellee, by and

through the Atascosa County Jail adminisuaiion. coerced Appellant into entering a plea of auilty.

provided him ineffective counsel, and supplied him with improper medical care that caused him

;o be sedated for his criminal trial. (T. Clerk R. L 6).


        Appellant does not allege Appellee violated any specific statute nor does Appellant cite to

any specific statute or specific cause of action as a basis for his claim.            (T. Clerk R. 3-9).

Appellant's purported causes of action are couched in vague and general terms and are structured

in a convoluted manner, making it problematic to discern.


                2.      The Four-Year Residual Statute of Limitation Period Applies

        "The statute of limitations is an affirmative defense/" Morris? v. Enron Oil & Gas Co..

948 S.W.2d 858, 867-68 (Tex. App—San Antonio 1997, no pet.).                  Its purpose is to compel

plaintiffs to assert claims within a reasonable period of time after injury, while the evidence

remains fresh in the minds of the parties and their witnesses. Id at 868.




                                                   21
        The burden of proving the affirmative defense lies solely on the defendant asserting the
 defense. Id. The defendant must specifically plead and prove the defense. Id.

        In Texas, if no express limitation period for a cause of action is provided, the limitation

 period is four years. Tex. Civ. P. & Rem. Code § 16.051. Without reference to a specific statute

 or cause ofaction. Appellant's allegations would properly fall under the residual limitations period
of section 16.051 for limitations purposes. Id.

        Appellant does not deny that the four-year residual limitation period applies to his suit, but

argues that fraudulent concealment tolled the accrual of his cause of action. (Rep. R. 25-29;

Appellant Br. 9-11). Appellant failed to argue that the four-year residual statute of limitation

period was not applicable in this suit, and thus waived such an argument.

               3.      Edwards's Claims Are Barred

        A defendant seeking summary judgment upon the defense of statute of limitations must

demonstrate when the action accrued. KPMG Peat Maverick v. Harrison County Horn. Fin. Corp..

988 S.W.2d 746. 748 (Tex. 1999). When a cause of action accrued is a question of law for the

court to decide. Moreno v. Sterling Drug. Inc., 787 S.W.2d 348, 351 (Tex. 1990). Generally, a

cause of action begins to accrue on the date a wrongful act causes a legal injury, regardless of

when the plaintiff learned of the injury. Id.; see also Advent Trust Co. v. Hyder, 12 S.W.3d 534.

538 (Tex. App.—San Antonio 1999, pet. denied).

       Appellant's suit involves allegations arising from incidents occurring during his

incarceration in the Atascosa County Jail. (Appellant Br. 10). Appellant was placed into the
custody of the Atascosa County Jail while he awaited triaJ on criminal charges, and after he was

released from a hospital for injuries he suffered during the commission of a criminal offense.

Appellant was transferred on multiple occasions beibre a final transfer to the Texas Department of



                                                  22
Criminal Justice. (S. Clerk R. 11-15). As indicated by the affidavit of Captain Gonzales made

part of Appellee's MSJ, the ultimate date of incarceration for Appellant in the Atascosa County

Jail was November 6, 2000. (S. Clerk R. 11-15). Appellant does not dispute the facts contained

within the affidavit.


        Appellee nor his administration had any additional dealings with Appellant after Appellant

was transferred to the Texas Department of Criminal Justice on November 6, 2000. (S. Clerk R.

11-15). Nor does Appellant allege any further contact between Appellee and Appellant after such

a date. Appellant's alleged injuries were, accordingly, committed on or before November 6. 2000.

        Appellee definitively established that Appellant's alleged causes of action necessarily

accrued on or before November 6. 2000, during his incarceration in the Atascosa County Jail.

Because Appellant filed suit on February 28, 2012, approximately twelve years after his last

incarceration in the Atascosa County Jail, approximately twelve years after Appellant's last contact

with Appellee or his administration, approximately twelve years after the alleged mistreatment

that Appellant contends caused him harm, and approximately twelve years after the accrual of anv

cause of action forming the basis of this suit. Appellee conclusively established his right to

summary judgment based on the four-year residual limitation period.

               4.       Neither the Discovery- Rule Nor Fraudulent Concealment Can Save
                        Edwards's Claims

       There are two exceptions to the general accrual rule for the statute of] imitations defense

First, the accrual of a cause of action will be tolled when the nature of the injury is inherently

undiscoverable and the evidence of the injury is objectively verifiable.      Wagner & Brown r.

Norwood, 58 S.W.3d 732, 734 (Tex. 2001). This is known as the discovery rule. Id Secondly,

the accrual of a cause of action will be lolled in cases where a defendant fraudulently conceals the

injury. BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59. 67 (Tex. 2011). If either doctrine applies.


                                                23
the cause of action accrues on the date that the plaintiff realized the injury or should have realized
the injury through the exercise of reasonable diligence. Id.

        The doctrine of fraudulent concealment is an equitable affirmative defense to a plea that

the statute of limitations bars a suit. AT&T Corp. v. Rylander. 2 S.W.3d 546, 557 (Tex. App.—

Austin 1999. pet. denied). A parly relying upon ihe doctrine of fraudulent concealment must raise

it in response to a motion for summary judgment and bears the burden to prove each element of

ihe doctrine to raise a genuine issue of material fact. Wright v. Greenberg, 2 S.W.3d 666, 677

(Tex. App.—Houston [14th DisL] 1999, pet. denied).             To raise the doctrine of fraudulent

concealment., the plaintiff must prove that the defendant had actual knowledge of the wrong, that

the defendant had a fixed purpose to conceal the wrong and that the defendant, in fact, did conceal

the wrong from the plaintiff. Shah, 67 S.W.3d at 841. Unlike the discover}- rule, application of

the fraudulent concealment doctrine is fact-specific. BP Am. Prod. Co.. 342 S.W.3d at 67.

       In the second section of his Point of Error Number Four, Appellant slates that fraudulent

concealment applies in this case, because Appellee either failed to disclose wrongful conduct or

lied about wrongful conduct. (Appellant Br. 9-10). Appellant charges that two employees of

Appellee gave perjured testimony in an extraneous offense report that was submitted to the jury at

his criminal trial. (Appellant Br. 10-11). Appellant states that "[ujntil this document is corrected

to reflect the true facts there is a continuing harm on going. Defendant Sheriff has no defense of

statute of limitations as long as this extraneous offense report remains fraudulent." (Appellant Br.

II).

       However. Appellant failed to plead the discovery rule or the doctrine of fraudulent

concealment in any of his pleadings in this suit. At the hearing on Appellee's MSJ, Appellant did
 raise the doctrine of fraudulent concealment (Rep. R. 27), but because Appellant failed to plead
 the doctrine, he waived the defense. Wright, 2 S.W.3d al 677.

           Should this Court find that Appellant properly raised and plead the doctrine of fraudulent
 concealment, which Appellee does not concede. Appellee asserts that Appellant failed to prove the
 doctrine at the MSJ hearing.

           The doctrine of fraudulent concealment was not proved by Appellant. Appellant failed to
 demonstrate or provide any evidence to prove that Appellee had actual knowledge of any

 wrongdoing, that Appellee had a fixed purpose to conceal any such wrong, or that Appellee., in
 fact., did conceal any wrong from Appellant. Appellant failed to prove that Appellee made an
 affirmative misrepresentation in any document, or otherwise.

           Appellant had personal knowledge of the criminal trial and personal knowledge of the

events involving him that transpired during his incarceration in the Atascosa County Jail, because

those acts personally involved Appellant. Hence, Appellant would have been aware ofany alleged
wrongdoing or injury as the legal injuries alleged by Appellant were perpetrated upon him while

he was incarcerated in the Atascosa County jail and they personally involved Appellant. (T. Clerk
R. 3-7).


        Appellant does not dispute his knowledge of the alleged misconduct that forms the basis

of this suit. In his complaint, Appellant confirms that he was aware of the declared misconduct.
Appellant states thai he took action in response to the alleged improper medical services by

advising his court appointed criminal aitorney of the conduct, complaining, almost daily, of the
treatment to MHMR, and requesting relief. (T. Clerk R. 4); see Velsico! Chem. Corp. v. WinogracL

956 S. W.2d 529.531 (Tex. 1997) Qiolding that the fraudulent concealment doctrine did not apply
where legal injuries were identifiable).




                                                 25
        Appellant has offered no evidence to prove fraudulent concealment, other than his self-

serving and conclusory assertions that the deputies committed perjury and that fraudulent

concealment applies in this case to toll the statute of limitations. The doctrine of fraudulent

concealment does not apply to save Appellant's claims from the residual statute of limitations.

       Appellant's alleged causes of action accrued on or before November 6, 2000. Appellant

filed suit against Appellee approximately twelve years after the date of Appellant's last contact

with the Atascosa County Jail administration. He failed to provide any evidence establishing

fraudulent concealment. Appellant was aware of the alleged conduct, that he contends caused him

harm, at the time it occurred. Because that conduct occurred in 2000, and not later. Appellee

conclusively demonstrated that Appellant's claims are time-barred under the residual four-year

limitations period. The trial court correctly granted Appellee's motion for summary judgment.

This Court should affirm.


       C.      Even if Edwards's Causes of Action Could Be Cast as a Section 1983 Claim,
               His Claims Are Barred


       While Appellant does not assert a violation of any specific statute or concisely detail a

cause of action, in his complaint. Appellant generally alleges violations of his rights under the

Constitutions of the United States and Texas. (T. Clerk R. 1-2, 10). In the second section to his

Point of Error Number Four. Appellant alleges that a fraudulent extraneous offense report was

admitted into evidence during his criminal trial in violation of his due process and civil rights.

(Appellant Br. 10-11). Finally, during the summary judgment hearing. Appellant appeared to

argue that part of the injury suffered by him and forming the basis of this suit were due process

violations resulting from a denial of his writ of habeas corpus. (Rep. R. 23-26).

       Claims based solely upon alleged violations of constitutional rights and due process rights

are properly brought under section 1983. 42 U.S.C. § 1983. Section 1983 imposes liability for


                                                26
 acts violating protected rights under the Constitution. Collins v. City ofMarker Heights. 112 S.

 Ct. 1061.1066(1992); Bakery. McCoHan, 443 U.S. 137. 146(1979). To establish a viable section

 1983 claim for violation of the Due Process Clause, the plaintiffmust prove that he has asserted a

 recognized liberty or property interest encompassed within the Fourteenth Amendment, and that

 he was deprived ofthat interest under color of state law. Doov. Taylor Indep. Sch. Dist.. 15 F.3d
 443,450 (5th Cir. 1994). Because federal law does not provide a statute of limitations for section
 1983 claims, the forum stale statute of limitations is adopted and applied. See generally On-ens v.

 Okure, 488 U.S. 235 (1989) (holding that when a state has various tort statute of limitations, the
 general statute applies to section 1983 claims); Harclin v. Straub. 109 S. Ct. 1998, 2000-2001

 (1989). In Texas, the applicable statute of limitations period is two years. Jackson v. Johnson,
950 F.2d 263.265 (5th Cir. 1992): Spencer v. Seagoville, 700 S.W.2d 953.956 (Tex. App.-Dallas
 1985, no pet.).


        Even ifEdwards could reasonably cast his claims against Appellee as a section 1983 claim,
such claim would be barred by the statute of limitations. The limitations period applicable to
Constitutional claims arising under the Texas Constitution or the United Slates Constitution,
including section 1983 claims, are governed by Texas law. Owens, 488 U.S. at 249-50. A suit

alleging section 1983 claims must be filed within two years of the accrual of the cause of action.
Jackson, 950 F.2d at 265.

        Thus, even cast as a section 1983 claim, it remains true, that Appellant was last incarcerated

in the Atascosa County Jail in 2000. and that he filed suit in 2012. Appellant's suit was filed
approximately twelve years after the accrual ofany alleged cause of action, well beyond the scope
of the two year statute of limitations provision. Even categorized as Constitutional claims.
Appellant's suit is barred.




                                                 27
                                  CONCLUSION AND PRAYER

        This Court should affirm the trial court's order granting Appellee's motion for summary-

judgment and granting severance.


        The summary judgment evidence offered by Appellee conclusively established that

Appellee filed an answer on April 4.2012. The answer was properly filed prior to removal in the

state district court. Appellee's answer constituted a live pleading and no additional answer was

necessary to be filed in federal court or in state court.

        Appellant received timely notice of the hearing on Appellee's motion for summary

judgment. A certificate of service attached to the notice ofhearing established a presumption of

service on April 3, 2014. The hearing was held on May 9, 2014. Appellant presented no evidence

to rebut the presumption of proper, timely notice. Therefore, Appellant had timely notice of the
hearing on Appellee's summary judgment motion.

        The summary judgment evidence conclusively established that Appellant's claims were

barred by the residual four-year statute of limitations period. Appellant filed suit against Appellee

approximately twelve years after the accrual of any alleged cause of action. Appellant presented

no evidence during the hearing to raise a fact issue to defeat or toll the statute of limitations.

       THEREFORE. Appellee Sheriff of County of Atascosa respectfully prays this Court 10

affirm the trial court's May 10, 2014. order granting Sheriff of County of Atascosa's Motion for
Summary Judgment and Motion to Sever, and grant such other further and proper relief, both at

law or in equity to which Appellee may be justly entitled.




                                                  28
                                             Respectfully submitted.

                                             ATASCOSA COUNTY ATTORNEY'S OFFICE




                                                                  <2,
                                             Lucinda A. Vickers
                                             lucinda.vickers@acao-tx.nrg
                                             Texas Bar No. 16300800

                                             Dennis Arriaga
                                             denms.an1aga@.acao-tx.org
                                             Texas Bar No. 24068021

                                             #1 Courthouse Circle Drive #3-B
                                             Jourdanton. Texas 78026
                                             TEL: 830-769-3573
                                             FAX: 830-769-2757



                             CERTIFICATE OF COMPLIANCE

       I hereby certify that this Brief of Appellee was prepared using Microsoft Word 2013.
which indicated that the total word count, exclusive of those items enumerated in rule 9.4(i)(l) of
the Texas Rules of Appellate Procedure, as amended, docs not exceed 15,000 words (7.995).




                                             Dennis Arriaga       / .'


                                CERTIFICATE OF SERVICE

       I hereby certify that I served a true and correct copy of this Brief of Appellee upon
counsel pro se for Appellant, via certified mail, return receipt requested, on this the £& dav of
January, 2015, at the following address:                                                  '   '


Mr. David Allan Edwards #907246                                     VIA CiVIRRR
Ellis Unit, 697 FM 980
Huntsville, Texas 77343
Counsel Pro Se for Appellant



                                             Dennis Arriaga



                                               29
NO-ANSWER DEFAULT AND EXHIBITS SUPPORTING IT


       COUNTY CODRT OP COMMISSIONERS
                                      Civil Action No:12-Q2-018S-CVA




  David Allan Edwards #907246
  Ellis Unit,1697 pM 980                                 §
  Huntsville, Texas 77343                                §

                                                         §
          Plaintiff                                      §

                                                         §
           V                                             §
                                                         §               in the
                                                         §               Judicial Dist Court
 County of Atescosa, District                            §               Atascosa c
 Attorney of Atascosa County,                            §
 Judge over Court, Sheriff of                            §
 Atascosa County, County Court                           §
 of Commissioners of Atascosa                            §
 County ,et al., Dr. Gerald B.                           §                          Q- \b
 Phillips, Physician of County                           §                        ~K^
 Jail, Atascosa County, Individual                       §                          ^
 Capadty                                                 §

                                                         §
         Defendants




          FOR MO-ANSWER DEFAULT AND/ OR SOMMflRY DEFflDLT JDDGEMEMT WITH SEVEREHCB

                 PORSQBNT TO T.RoC.P. 41, 166a(c), 237, 237a, 239, 240, 268

                                            FOR


C00MET CODRT OF OOMaiSSIOMERS, ATASOOSA COOMTT, LOW GILLESPIE, WILLIAM TORAK1S,
                                   FREDDIE OGDEK^ WELDOW CODE




Paupers Oath,I        DAVID   ALLAN       EDWARDS,       have   no material wealth, no money and

no     income from any source to pay fees or cost, attorney, etc, See T.R.C.P*

145,    who    is     incarcerated and Pro se Litigant, See ARMSTRONG 881 s.W.2d at
53,    as a Pro se Litigant I am subject to " less stringent standards than
formal pleadings         drafted     by    real lawyers." See SPELLMAN 819 s.w.2d at 206.

                                                     I



Plaintiff roves this court for a judgement by default in this action, and
          in




  to                    filed



  or
               the wmmmmi mm
                                                                   M(   m   The defen.



  on   October    *.


                                 court




                 or         at    the




  fexhibit "A" ).


                                                   II




 a9ainst a aidant that has not aw w                     „.„.       239_




       aoes    no. fUe an




tea
                                 S.K.3a at 930;Sae T.B.c.P. 243.
                             is    interIocutmy



                            final        j




Terence n.Jcing tne interlocuitory aefault juaoe^ent final,
                                                                            313S M
at 387,388.




                                             (2)
                                                           Ill


   '»U such averse partles shaU have

   f   such       notice    «**        Hhlch        t0 fUe „

                                               in    .   amma




                                                in   federal




             to   state    court



  or   the     remand      notice             the    plalntiff,,


  S.-.M      at    534,538.             see KM» V


 :Austin

 pounds for a m-wsxm DEpaDtT



                                                         IV




                  ,0
                                     elapsea since «. aate on which ^ de£endant
       aervea with         a copy of Pontiffs REr^ATE^ , „„„,                                  ^
-U -...C..Z06.107.                          aefenaant         haS   fallea   to
                                                                                      an Ktmam     ,t
             on                     2013.                           has «« to

          as      to
                                                                                    defendant,or



copy of OTy answers any defense ,*ich it night have had

^■s a genuine iasue of ^ia! fcct                                                  stmBry   j




Movant defenaant as a matter of Law T.R.c.P.166a (c)
                        in th6 MillCary




                                                     (3)
                                            PRflSBR




WHEREFORE      premisses     considered   Plaintiff    herein prays this Honorable Court

GRANTS    in    total    this   No — Answer Default/Suniraary with Severence     and grant

all    other    relief     Plaintiff is entitled to,    suGh as expenses/   cost of court/


and    attorney    fees* Plaintiff also prays this Honorable Court rule immediatly

as    defendant has had almost two years to either answer or make an appearance..


Plaintiff also prays that this Honorable Court hold the defendants accountable

both jointly and severalty in all things.




                                                          Respectfully submitted



                                                                   Qr \                x

                                                          DAVTD ALLAN EDWARDS # 907246
                                                          PLAINTIFF, PRO SE
                                                          ELLIS UNIT/ 1697 PM 980
                                                          HUNTSVILLE, TEXAS 77343




                                              (A)
                                     DECLARATION




1 DAVID SiSSiSaS EPTBaagPS,   declare under penalty of perj-usy, pursuant to §

132.003 § T.C.P £ R Codes, that I have read and subscribe to the above

End 1 swear that the information contained therein is true and correct

to the best of my knowledge.




Executed Ba^lj 3»5.9£l3 , at Ellis Unit, Honteville, Tesas.




                                               J^i« GL z&iJbCMA
                                               David Alien Sdwesds #907246
                                               Plaintiff, Pro se Litigant
                                               Sllis Unit,   1697 FM 980
                                               Huntsville,   Tesas 77343




                                       i'5)
                              OBBHFICMg Of SERVICE



  'T ""'                                      ««lf, under penalty of perjury




 haa been provided to the below listed parties by placing said
 ««^ m          .   postage-paid         envelope via^ mall thls^. day


 DISTRICT ATTORHEYxATASfTn.qa rcarm-v
 Attorney tor Defendant     "
 ?niSSr A" Dou9lass/Plunket £ Gibson/ INC
 70 NE Loop 410 Suite 1100
 San Antonio, Tx 78216
 SHERIFF OF ATASCOSA COOMTY
Attorney for Defendant
2!Ci^ii: Vickers' Atascosa County Attorney
One Courthouse Circle Dr. # 3B
Jourdanton/ Tx 78026
JDDGE STELLA SAXON, 81st/218th DIST
                                                  A. Harris
     BOX 12548, Capitol Station
Austin, Texas 78711

COOMTY CODRT OF COMMISSIOMERS
Courthouse Suite 102
One Courthouse Circle,Dr.
Jourdanton, Tx 78026
Dr. GERALD B.PHILLIPS
Attorney for Defendant
Hollan Law Finn,Rosemary Hollan
711 Navarro St, Suite 250
San Antonio, Tx 78205




                                               David Allan Edwards #907246
                                               ?laintiff/Pro se Litigant
                                               21Iis Unit/1697 PM 9Q0
                                               Huntsville, Texas 77343

                                               Date.   "7




                                        ■5}
                                    Civil Action No:12-02-0185-CVA




David Allan Edwards #907246
Ellis Untt,1697FM 980                             §
Huntsville, Texas 77343                           §
                                                  §
        Plaintiff                                 §
                                                  §
                                                  §
                                                  §                     Inthe81rt/218th
                                                  §                    Judiciai Oist. Court
County of Atascosa, District                      §                    Atascosa County, Texas
Attorney of Atascosa County,                      §
Judge over Court, Sheriff of                      §
Atascosa County, County Court                     §
of Commissioners of Atascosa                      §
County ,et a!., Or. Gerald B.                     §
Phillips, Physician of County                     §
Jail, Atascosa County, Individual                 §
Capacity                                          §
                                                  §
        Defendants




                                           JUDGEMENT


     On    the             day of                     20        came to be heard Plaintiff
DAVID      ALLAN     EDWARDS, Motion            FOR        HO   - ANSWER DEFAULT/ SUMMARY
DEFAULT WITH SEVERENCEoAfter                  reviewing          the    Pleadings       on    file
herein,       the Court is of the opinion that said motion is meritor
ious/     and should be         in all things;



                 GRANTED                  GRANTED          IN PART                 NOT GRANTED


EXPLANATION:




IT   IS     THEREFORE       ORDERED,         ADJUDGED AND DECREED THAT PLAINTIFFS
MOTION BE                               .Signed this the                  day           of 20




                                                       DISTRICT        JUDGE    PRESIDING
          ;«items/i ^.and 3. .Also complete
 Jjpdmplefei
 j i itprrvM jr Restrietep yelivery is desired.                                                                           O Agent
; h* ffrirft your nirrje and address on the reverse                                                                       □ Addressee
1 : so *a| we carj return the card to you.                                           i by (Prinjgdjlame)            C. Date of Delivery
          'v AttaptiUhis 6artj to the'tack of the mailpiece,

                                                                          0. Is delwery address i^arentfrorrritemi?       E'Yes
                                                                             If YES. aiter delivery address below:        □ No



                                                                                   C. C-*(•-•!                       y   -,!.'•, ^ ;


                                                                         3. SepJiceTypa
                                                                          ^&Certrtied Mail         D Express Mail
                                                                             D Re^steied           D Return Receipt for Merchandise
                                                                             □ Insured Mall        □ COO.
                                                                          4. Restricted Delivery? (Ertra fise;             □ Yes

                                                        7Q1S       HH1D

                                                           Domestic Return Receipt                                       102S95O2-M-1540




                                           nti 3. Also complete           A. Signature
                                                                                                                    :■    □' Agent
      ,     / 4;if pes'irlpt^a Beljuejfy is desired.
: 3 Print your r^rrje and address on the reverse                          X! \                 I                    • v- * □ Addressee
 '-.. !i.Wb that wJp ^4return thaicard to you.                            B. Received by ( Printed Name)            C. Date of Delivery
     s'.Aha'qh \n& card tt> tf\e Back of the mailpiece,                                                             1 - -7,-       , ,- >
;.:; br on'-th'B ffprtt itspacp permits.
                                                                          D. IsdeTrveiyaddressdltferentframitem 1? C-TYes
      1.-.
                                                                             If YE9, enter dslivery address bslow: □ No




                                                                        •a. JerviceType
                                                                          /D-Certified MaB         D Express Mai
                                                                             D Rogbtered           D Return Recoipt for Merchandise
                                                                             □ Insured Mall        □ C.O.D.
                                                                          4. Restricted Delivery? (Ertra Ffes)             □ Yes


     .i                                                   ID:La
 ,P5 Fpcfh 3811/Fpbruaiyi6fl4                              Domestic Return Receipt                                       102595-02-M-1540
■i        a"   ---w.    J   I'   r    :2




                                                                        A. Signature
                                      ^        . Also complete
                                 delivery is desired,
                                     d" address on the reverse
                                     fri the-card to you.                              by ( Printed NemB\        C. Date of Delivery
                                        e babk of the mailpiece,
                                           jjefmits.                                   f      fX                    7 • 3o- is
                                                                        0! Is delivery address different from item 1?
                                                                            If YES. enter daKvery address below:          □ No




                                                                                     Type
                                                                                    ed Mall        D Express Mail
                                                                            O Registered           □ Return Receipt for Merchandise
                                                                            D Insured Mall         □ C.O.D.
                                                                        4. Restricted Denvery? (Extra Fee?




                                                       7012 221D DQQH SL7=i
CLERKS   INDEX
                 CLERK'S RECORD DUE

  06/28/2013                 COURT OF APPEALS
                                                                             50.00     GBEN
                 RELATOR'S SUPPLEMENTAL PETITION FOR WRIT OF MANDAMUS
                 £ I LED


  07/02/2013                 COURT OF APPEALS
                                                                             50.00     GBEN
                ELECTRONIC CLERK'S RECORD FILED
 07/03/2013                  COURT OF APPEALS
                                                                             SO.00     GBEN
                            * SUPPLEMENTAL PETITION FOR WRIT OF MANDAMUS

 07/18/2013                  MOTION
                                                                            $0.00
                                ADMISSI0NS ™° W<** PRODUCT FROM DEFENDANT
                             COUNTY CIVH. CASE SUMMARY - PLEADINGS
                                    CAUSE # 12-02-0185-CVA




                                            PENA CONCERNING EXTRANEOUS

                           (A)(B)(C,(D,, 192.05(A)(ir.l9i
07/18/2013                  OBJECTION                                       ,_

               m ^* ™ ?ODR*MMfNISTRATO* Kttsmur *° c.p.r.c/0-00 ^

07/30/2013
                            REQUEST FOR ADMISSIONS TO DEFENDANT
               DR. GERALD B. PHILLIPS                                      ?0.00     GBEN

08/01/2013
                                                                           50.00     GBEN

08/01/2013
                            MOTION FOR NO-ANSWER DEFAULT JUDGMENT          so on     rRr«
               COUNTY COURT OF COMMISSIONERS, ATASCOSA COUNTY LON
               GILLESPIE, WILLXAM TORAH3, FREDDIE OGDEN, WELDON CUDE

09/03/2013             MOTION
                                                                           $0.00     CDUN
               TO REQUEST ADMISSIONS, WORK PRODUCT AND WITNESS
                   lS ra°M D£FENDANT DISTRICT ATTORNEY RENE PENA
09/03/2013                 MOTION
                                                                           SO.00     CDUN
               FOR AN ORDER COMPELLING DEFENDANTS TO ANSWER AND

09/03/2013                 NOTICE
                                                                           $0.00     CDDN
               LETTER TO DAVID ALLEN EDWARDS

09/03/2013                 MOTION FOR SUMMARY JUDGMENT                     $0.00     NVIL
              AND FOR SEVERANCE FILED ON BEHALF OF GERALD 3. PHILLIPS

09/17/2013
                      NOTICE OF HEARING                               so 00   rnnK
              ON DEFENDANT GERALD PHILLIPS M.D.S MOTION FOR SUMMARV
              JODGMENT AND FOR SEVERANCE                          '
09/17/2013
                      PLAINTIFFS
              USHER AND OBJECTION TO DUEHMgx GERALD B. PHILLIPS,"°'°°
              M.D. S MOTION FOR SUMMARY JUDGMENT AND SEVERANCE
09/26/2013            DEFENDANT




TOTAL PLEADINGS LISEED: 82
