                                                                                           ACCEPTED
                                                                                       04-14-00922-CV
                                                                           FOURTH COURT OF APPEALS
                                                                                SAN ANTONIO, TEXAS
                                                                                 7/17/2015 10:49:31 AM
                                                                                        KEITH HOTTLE
                                                                                                CLERK

                             No. 04-14-00922-CV

                         In the Court of Appeals                 FILED IN
                                                          4th COURT OF APPEALS
                 Fourth Court of Appeals District of Texas SAN ANTONIO, TEXAS
                           San Antonio, Texas             07/17/15 10:49:31 AM
                         ____________________               KEITH E. HOTTLE
                                                                   Clerk

                            JOHN E. RODARTE
                                Appellant,

                                     v.

TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
          TEXAS CHILD PROTECTIVE SERVICES
                       Appellee.
                 ____________________

         From the 57TH Judicial District Court, Bexar County, Texas
                      Trial Court No. 2010-CI-12625
               Honorable Antonia Arteaga, Judge Presiding

                             APPELLEE’S BRIEF
                            ____________________

                  REQUEST FOR ORAL ARGUMENT

KEN PAXTON                                JASON CONTRERAS
Attorney General of Texas                 Texas Bar No. 24032093
                                          Assistant Attorney General
CHARLES E. ROY                            Office of the Attorney General
First Assistant Attorney General          General Litigation Division
                                          P.O. Box 12548, Capitol Station
JAMES E. DAVIS                            Austin, Texas 78711-2548
Deputy Attorney General for Civil         (512) 463-2120
Litigation                                (512) 320-0667 (FAX)
                                          Email:
ANGELA V. COLMENERO                       Jason.Contreras@texasattorneygeneral.gov
Chief, General Litigation Division
                                          COUNSEL FOR APPELLEE
                       IDENTITIES OF PARTIES AND COUNSEL
      Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellee
herein provides this Court with the following list of parties and the names and
addresses of all trial and appellee counsel:

Appellant:                                                   Appellee:
John E. Rodarte, Sr.                                         Texas Department of Family and
                                                             Protective Services; Texas Child
                                                             Protective Services 1

Trial and Appellate Counsel:                                 Trial and Appellate Counsel:
John E. Rodarte, Sr., Pro Se                                 Jason T. Contreras
TDCJ # 1263270                                               Assistant Attorney General
Clements Unit                                                State Bar No. 24032093
9601 Spur 591                                                Office of the Attorney General
Amarillo, Texas 79107-9606                                   P.O. Box 12548
                                                             Austin, Texas 78711-2548
                                                             Phone: 512-463-2120
                                                             Fax: 512-320-0667




         1
           Plaintiff incorrectly named Defendant-Appellee as the “Child Protective and Regulatory Services.” CR 1.
It was previously named the Texas Department of Protective and Regulatory Services, and is currently named the
Texas Department of Family and Protective Services. A reference in law to the Department of Protective and
Regulatory Services means the Department of Family and Protective Services. Act of June 1, 2003, 78th Leg., R.S., §
1.27, 2003 Tex. Gen. Laws 611, 641.


                                                        ii
                                         TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL ........................................................ II
TABLE OF CONTENTS .........................................................................................III
APPENDIX ............................................................................................................. IV
INDEX OF AUTHORITIES..................................................................................... V
STATEMENT OF THE CASE .............................................................................. VII
STATEMENT REGARDING ORAL ARGUMENT .......................................... VIII
ISSUES PRESENTED............................................................................................ IX
STATEMENT OF THE FACTS ............................................................................... 1
SUMMARY OF ARGUMENT ................................................................................. 3
ARGUMENT .............................................................................................................4
   A.        Appellant Obtained All Of The Relief Sought In His Lawsuit
             And His Tort Claims Against DFPS Are Barred By Sovereign
             Immunity .....................................................................................................4
   B.        The Discovery Rule Does Not Apply And Cannot Serve As A
             Basis To Permit Appellant To Proceed With Any Tort Claims
             Against Appellee .........................................................................................7
   C.        No Due Process Rights Attach To The Denial of Production
             Of The 1995 Investigation File.................................................................... 8
PRAYER ....................................................................................................................9
CERTIFICATE OF COMPLIANCE .......................................................................10
CERTIFICATE OF SERVICE ................................................................................11




                                                            iii
                                           APPENDIX

CR 1–4, Original Petition for Lawsuit ........................................................TAB A

CR 11–19, Defendant’s Plea to the Jurisdiction ......................................... TAB B

CR 29, Order Granting Defendant’s Plea to the Jurisdiction ..................... TAB C

CR 86–94, Memorandum Opinion .............................................................TAB D

CR 82–98, Defendant’s Motion to Dismiss ................................................ TAB E

CR 99, Order Granting Defendant’s Motion to Dismiss ............................ TAB F




                                                  iv
                                      INDEX OF AUTHORITIES
Cases
Barker v. Eckman,
  213 S.W.3d 306 (Tex.2006)...................................................................................7
Byers v. Patterson,
  219 S.W.3d 514 (Tex.App.-Tyler 2007, no pet.) ...............................................8, 9
City of Dallas v. Carbajal,
  324 S.W.3d 537 (Tex.2010) (per curiam) ..............................................................6
County of Cameron v. Brown,
  80 S.W.3d 549 (Tex.2002).....................................................................................4
Darr Equipment Co. v. Allen,
  824 S.W.2d 710 (Tex.App.-Amarillo 1992, writ denied)......................................7
Gray v. City of Galveston,
  No. 14–03–00298–CV, 2003 WL 22908145 (Tex.App.—Houston [14th Dist.]
  Dec. 11, 2003, pet. denied) ....................................................................................6
HECI Exploration Co. v. Neel,
 982 S.W.2d 881 (Tex.1998)...................................................................................7
Mansfield State Bank v. Cohn,
 573 S.W.2d 181 (Tex. 1978)..................................................................................6
Murray v. O&A Express, Inc.,
 630 S.W.2d 633 (Tex. 1982)..................................................................................4
Tara Partners, Ltd. v. City of S. Houston,
  282 S.W.3d 564 (Tex.App.-Houston [14th Dist.] 2009, pet. denied)....................6
Tex. A & M Univ. Sys. v. Koseoglu,
  233 S.W.3d 835 ......................................................................................................6
Tex. Dep't of Parks & Wildlife v. Miranda,
  133 S.W.3d 217 (Tex.2004)...................................................................................4
Tex. Dep't of Pub. Safety v. Petta,
  44 S.W.3d 575 (Tex.2001).....................................................................................5



                                                           v
Univ. of N. Tex. v. Harvey,
  124 S.W.3d at 216 (Tex.App.-Fort Worth 2003, pet. denied) ...............................4
Univ. of Tex. Med. Branch at Galveston v. York,
  871 S.W.2d 175 (Tex.1994)...................................................................................5
University of Tex. Med. Sch. at Houston v. Than,
  901 S.W.2d 926 (Tex.1995)...................................................................................8
Statutes
TEX. CIV. PRAC. & REM. CODE § 16.003(a) ...............................................................8
TEX. CIV. PRAC. & REM. CODE ANN. Ch.101 ............................................................5
TEX. GOVT. CODE § 552.028(a) .................................................................................2
TEX. GOVT. CODE Ch. 553 .........................................................................................1
Other Authorities
Act of June 1, 2003,
  78th Leg., R.S., § 1.27, 2003 Tex. Gen. Laws 611, 641....................................... ii
Rules
TEX. R. CIV.PRO. 22 ...................................................................................................4
TEX. R. CIV.PRO. 45(b), 47(a) ....................................................................................4
TEX.R.APP. P. 33.1(a) ................................................................................................6




                                                           vi
                           STATEMENT OF THE CASE
Nature of the Case:                       This case involves an open records
                                          request by Appellant, an incarcerated
                                          individual. On July 22, 2010, Appellant
                                          filed a lawsuit in order to obtain a copy
                                          of a 1995 CPS Investigation file
                                          regarding child sexual abuse of his
                                          minor sons for which he was the alleged
                                          perpetrator and upon which he was
                                          subsequently imprisoned and is now
                                          serving a life sentence. CR1–4 (TAB
                                          A).

Trial Court:                              The Honorable Antonia Arteaga

Trial Court Disposition:                  Appellee filed a plea to the jurisdiction
                                          and motion to dismiss on September 24,
                                          2010. CR 11–19 (TAB B). Appellee’s
                                          plea and motion was granted thereby
                                          dismissing Appellant’s claims. CR 29
                                          (TAB C). Appellant appealed on
                                          October 27, 2010 and after the parties
                                          submitted their respective briefing, the
                                          Fourth Court of Appeals affirmed in
                                          part and remanded in part. CR 86-94
                                          (TAB D). On remand, and consistent
                                          with the ruling of the Fourth Court of
                                          Appeals, the trial courted ordered
                                          Appellee to produce to Appellant the
                                          1995 investigation file. Accordingly,
                                          Appellant received a copy of the
                                          investigation file. Since there was
                                          nothing further to litigate and his tort
                                          claims were also dismissed, Appellee
                                          filed a motion to dismiss on November
                                          19, 2014, which was granted on
                                          December 5, 2014. CR 82–98 (TAB E);
                                          CR 99 (TAB F). This appeal followed.



                                    vii
              STATEMENT REGARDING ORAL ARGUMENT
      Oral argument is not likely to alter the outcome or to be a useful expenditure

of scarce judicial resources. The legal principles relevant to this appeal are neither

novel nor complex and the facts are straightforward. Accordingly, Appellee does not

believe that oral argument is necessary. However, if the Court determines that oral

argument is necessary in this case, Appellee respectfully requests to participate.




                                         viii
                              ISSUES PRESENTED
      The sole issue in this appeal is whether the trial court erred in dismissing this

case after Appellant had obtained all of the relief sought in the lawsuit, the

production of the 1995 investigation file, and had properly dismissed his tort claims.




                                          ix
                               No. 04-14-00922-CV

                            In the Court of Appeals
                    Fourth Court of Appeals District of Texas
                              San Antonio, Texas
                            ____________________

                              JOHN E. RODARTE
                                  Appellant,

                                            v.

  TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
            TEXAS CHILD PROTECTIVE SERVICES
                         Appellee.
                   ____________________

            From the 57TH Judicial District Court, Bexar County, Texas
                         Trial Court No. 2010-CI-12625
                  Honorable Antonia Arteaga, Judge Presiding

                              APPELLEE’S BRIEF
                             ____________________

TO THE HONORABLE COURT OF APPEALS:

      Appellee, the Texas Department of Family and Protective Services (DFPS),

files this Brief. In support thereof, Appellee DFPS respectfully presents the

following to the Court for consideration:

                        STATEMENT OF THE FACTS
      This case involves a request for the production of documents by an

incarcerated inmate pursuant to the Texas Public Information Act. Appellant

Rodarte is currently serving concurrent life sentences and twenty years
imprisonment after being convicted of aggravated sexual assault of, and indecency,

with his two minor children. CR 1–4; Supp CR 2-18. He is currently imprisoned in

the Bill Clements Unit of the Texas Department of Criminal Justice. CR 3.

      On July 22, 2010, Appellant filed suit in order to obtain a copy of the 1995

investigation conducted by Appellee of child sexual abuse of his sons whereby he

was the alleged abuser, claiming that the investigation file was needed “for further

litigation in other cases.” CR 1–4. His petition also alleged a tort claim against

Appellee. Id. However, the only relief sought by Appellant was to obtain a copy of

the 1995 investigation file. Id.

      On September 24, 2010, Appellee filed a Plea to the Jurisdiction and Motion

to Dismiss with the trial court arguing that 1) Appellant’s tort claims were barred by

sovereign immunity, and 2) that under the Act, DFPS has discretionary authority to

deny or comply with a request for documents by an incarcerated inmate pursuant to

TEX. GOVT. CODE     ANN.     § 552.028(a) (West 2003) (a governmental body is not

required to accept or comply with a request for information from incarcerated

individuals). CR 11-19. The plea and motion were granted on October 11, 2010,

thereby dismissing the case with prejudice and without production of the 1995

investigation file. CR 29.

      Appellant subsequently filed an appeal before the Fourth Court of Appeals.

CR 35-41. On appeal after the parties submitted their respective briefing, the Fourth



                                           2
Court affirmed in part and reversed and remanded in part. CR 86-93. On remand,

consistent with the ruling by the Fourth Court, the trial court ordered Appellee to

produce the 1995 investigation file to Appellant. CR 94-95. In accordance with the

trial court’s Order, Appellee produced the file in October 2012. CR 96-97. Appellant

did not challenge the dismissal of his tort claims against DFPS and the trial court’s

order dismissing his tort claims was affirmed. CR 92.

      Since Appellant received all the relief he sought in his suit (i.e., the 1995

investigation file in issue) and his tort claims had been dismissed, Appellee filed a

motion to dismiss on November 19, 2014, and the motion was granted on December

5, 2014. CR 82–98; CR 99. This appeal followed. CR 106.

                          SUMMARY OF ARGUMENT
      This Court should affirm the trial court’s December 5, 2014 Order of

Dismissal since Appellant’s claims against DFPS have been litigated and he has

received all of the relief he sought namely, production of the 1995 investigation file.

Further, Appellant’s tort claims against DFPS were dismissed for lack of subject

matter jurisdiction because there is no waiver of sovereign immunity that would

permit such claims to proceed. Finally, no due process rights attach to the denial of

production of the investigation file. For these reasons, the trial court’s dismissal of

the case should be affirmed.




                                           3
                                    ARGUMENT
   A. Appellant Obtained All Of The Relief Sought In His Lawsuit And His
      Tort Claims Against DFPS Are Barred By Sovereign Immunity

      This Court should affirm the trial court’s dismissal of this case because

Appellant received all of his requested relief and his remaining claims are bared. The

plaintiff initially decides who the parties are and what claims to assert. See TEX. R.

CIV. P. 22. The plaintiff’s petition defines the issues for trial. Murray v. O&A

Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982). The pleadings must give a short

statement of the cause of action sufficient to give the defendant fair and adequate

notice of the claim involved. TEX. R. CIV. P. 45(b), 47(a).

      Appellant’s suit only sought production of the 1995 investigation file. CR 1-

4. He did not request any other relief. CR 1-4. It is without dispute that he obtained

the file. CR 96-97. Moreover, after receiving the file and prior to the dismissal of his

suit, Appellant never amended his petition to add any further causes of action or to

seek any additional forms of relief against DFPS.

      Additionally, Appellant failed to plead facts supporting a viable tort claim

under the Texas Tort Claims Act (TTCA). CR 1-4. A plaintiff must plead facts

sufficient to invoke a waiver of sovereign immunity under the TTCA. County of

Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002); Univ. of N. Tex. v. Harvey, 124

S.W.3d at 216, 222 (Tex.App.-Fort Worth 2003, pet. denied); Tex. Dep't of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). The TTCA provides a very


                                           4
limited waiver of sovereign immunity. See TEX. CIV. PRAC. & REM.CODE ANN. §§

101.001–109. Stated another way, the Legislature grants a party permission to sue a

governmental unit for damages only to the extent allowed under the TTCA. Id. §

101.025(b). Section 101.021 of the TTCA waives immunity in only three scenarios:

(1) negligent operation or use of a motor-driven vehicle or equipment by a state

employee; (2) negligent use of tangible personal property by a state employee, and

3) premises defects. Id. at § 101.021(2).

      Texas law is clear and it has “long held that information is not tangible

personal property, since it is an abstract concept that lacks corporeal, physical, or

palpable qualities.” Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 580

(Tex.2001); see Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175,

179 (Tex.1994). Because Appellant’s lawsuit was simply to obtain information

contained in the 1995 investigation file, it did not involve tangible personal property

upon which he could base a waiver of sovereign immunity to pursue a tort claim

against DFPS under the TTCA. Nothing in his allegations fits within the very limited

waiver of immunity for tort claims. CR 1-4.

      Even if Appellant had alleged facts fitting with the limited waiver, his failure

to comply with the TTCA’s requirement to notify a governmental unit of a claim

before filing suit is another jurisdictional bar of his purported tort claim. TEX. CIV.

PRAC. & REM.CODE ANN. § 101.101. The failure to comply with the notice



                                            5
requirements in the Texas Tort Claims Act also deprives the trial court of subject-

matter jurisdiction. City of Dallas v. Carbajal, 324 S.W.3d 537, 537–38 (Tex.2010).

      Appellant also did not amend his petition and therefore expressly waived any

right to assert additional or different tort claims against DFPS. See Tex. A & M Univ.

Sys. v. Koseoglu, 233 S.W.3d 835, 839–40 (Tex.2007); See Gray v. City of

Galveston, No. 14–03–00298–CV, 2003 WL 22908145, at *2 (Tex.App.—Houston

[14th Dist.] Dec. 11, 2003, pet. denied) (claimant waived any right to amend when

he had an opportunity to amend his petition to attempt to allege facts sufficient to

plead a claim within a waiver of sovereign immunity and did not do so); Tara

Partners, Ltd. v. City of S. Houston, 282 S.W.3d 564, 578 (Tex.App.-Houston [14th

Dist.] 2009, pet. denied).

      The fact that Appellant is a pro se claimant does not excuse him from

complying with the applicable substantive and procedural rules of law. See

Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Accordingly,

this Court should affirm the trial court’s dismissal of his suit for lack of jurisdiction

and Appellant waived any right to assert new tort claims that might be within the

waiver of immunity because he had an opportunity to amend and did not do so.

TEX.R.APP. P. 33.1(a); See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d at 839–

40.




                                            6
   B. The Discovery Rule Does Not Apply And Cannot Serve As A Basis To
      Permit Appellant To Proceed With Any Tort Claims Against Appellee

       Appellant’s contention on appeal 2 that he should be allowed to proceed with

his tort claims based on application of the discovery rule is flatly incorrect. The

discovery rule defers a cause of action’s accrual date until the plaintiff knows, or by

exercising reasonable diligence should know, of the facts giving rise to the claim.

Barker v. Eckman, 213 S.W.3d 306, 311-12 (Tex. 2006). In order for the discovery

rule to apply, the nature of the injury must be inherently undiscoverable and the

injury itself must be objectively verifiable. HECI Exploration Co. v. Neel, 982

S.W.2d 881, 886 (Tex.1998). The alleged injury here – of what appears to be

negligent failure to protect – is not “inherently undiscoverable” or objectively

verifiable.” Moreover, Appellant does not allege specific facts that he has discovered

what were before “inherently discoverable.” Therefore, the discovery rule does not

apply to permit him to now assert new allegations to support a tort claim. See Darr

Equipment Co. v. Allen, 824 S.W.2d 710, 712 (Tex.App.-Amarillo 1992, writ

denied).




       2
         Appellee notes that that Rodarte did not allege in his Original Petition that it failed to
protect his children by failing to remove them from an abusive environment. CR 1-4. Rather, the
sole basis of his lawsuit relates to the denial of production of the 1995 investigation file. Id.


                                                7
      Additionally, waiting fifteen (15) years to obtain the 1995 investigation file

clearly shows that Appellant did not exercise reasonable diligence in obtaining facts

giving rise to any purported tort claims. CR 1-4.

      Moreover, since the discovery rule does not apply, any new tort claims are

barred by the two-year statute of limitations period. TEX. CIV. PRAC. & REM. CODE

ANN. § 16.003(a). Hence, even if Appellant “discovered” additional facts giving rise

to a claim in October 2012 (i.e., when the investigation file was produced), Appellant

failed to timely amend his petition to properly pursue them within the two-year

limitations period, which was no later than October 2014. Therefore, no valid legal

basis exists for deferral of the accrual date of his purported tort claim and dismissal

of his tort claims was proper. This Court should affirm that dismissal.

   C. No Due Process Rights Attach To The Denial of Production Of The 1995
      Investigation File

      Appellant’s due process violation argument fares no better than his contention

that the discovery rule applies. A violation of substantive due process occurs only

when the government deprives individuals of constitutionally protected rights by an

arbitrary use of its power. Byers v. Patterson, 219 S.W.3d 514, 525 (Tex.App.-Tyler

2007, no pet.). The procedural due process component provides that citizens are

entitled to notice and an opportunity to be heard at a meaningful time in a meaningful

manner before any rights in life, liberty, or property may be taken away by the state.

University of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 930 (Tex.1995).

                                           8
      It is without dispute that the nature of Appellant’s lawsuit involved DFPS’s

initial refusal to provide him the 1995 investigation file regarding sexual abuse of

his children. CR 1-4. On appeal, he simply attempts to mischaracterize the nature of

his lawsuit by raising the issue of parental rights. The status of his parental rights

over his children was never an issue at the trial court level. CR 1-4. Rather, the only

issue, and in fact the only basis of his Original Petition, related to the denial of his

access to the 1995 investigation file. Id. Appellant is not entitled to any due process

protections (or any other constitutional protections for that matter) relating to the

investigation file because its production or non-production does not involve a

constitutionally protected property right. Nor does he hold a property interest in

DFPS’s investigation file to support any substantive due process claim, particularly

since by way of his lawsuit he has received the investigation file in issue. Byers v.

Patterson, 219 S.W.3d at 525.

                                      PRAYER
      For the reasons stated herein, Appellee respectfully requests that the Court

overrule all of Appellant’s points of error and affirm the trial court’s dismissal.

                                        Respectfully submitted,

                                        KEN PAXTON
                                        Attorney General of Texas
                                        CHARLES E. ROY
                                        First Assistant Attorney General
                                        JAMES E. DAVIS



                                           9
                                      Deputy Attorney General for Civil
                                      Litigation
                                      ANGELA V. COLMENERO
                                      Chief, General Litigation Division

                                      /s/ Jason T. Contreras
                                      Jason T. Contreras
                                      Texas Bar No. 24032093
                                      Assistant Attorney General
                                      Office of the Attorney General
                                      General Litigation Division
                                      P.O. Box 12548, Capitol Station
                                      Austin, Texas 78711-2548
                                      Phone: 512-463-2120
                                      Fax: 512-320-0667
                                      Counsel for Appellee


                      CERTIFICATE OF COMPLIANCE
      The undersigned counsel certifies that this Brief of Appellee complies with
Rule 9.4 of the Texas Rules of Appellate Procedure. The text is set to 14-point font
and the number of words in the document as calculated by the word count feature of
Microsoft Word is 2005.

                                      /s/ Jason T. Contreras
                                      Jason T. Contreras
                                      Assistant Attorney General




                                         10
                         CERTIFICATE OF SERVICE

     I hereby certify that on July 17, 2015, a true and correct copy of the foregoing
document was served to John E. Rodarte by Certified Mail Return Receipt
Requested 7013-0600-0001-9791-3104 and Regular Mail.

John E. Rodarte, Sr.
TDCJ # 1263270
Clements Unit
9601 Spur 591
Amarillo, Texas 79107-9606

                                       /s/ Jason T. Contreras
                                       Jason T. Contreras
                                       Assistant Attorney General




                                         11
TAB A
TAB A
TAB A
TAB A
TAB A
TAB B
TAB B
TAB B
TAB B
TAB B
TAB B
TAB B
TAB B
TAB B
TAB B
TAB C
TAB C
TAB D
TAB D
TAB D
TAB D
TAB D
TAB D
TAB D
TAB D
TAB D
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB F
TAB F
