ACCEPTED
03-15-00374-CV
7341140
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/12/2015 9:30:36 PM
JEFFREY D. KYLE
No. 03-15-00374-CV CLERK
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS FILED IN
AUSTIN, TEXAS 3rd COURT OF APPEALS AUSTIN, TEXAS
JAMAR OSBORNE, 10/12/2015 9:30:36 PM Appellant,
JEFFREY D. KYLE
vs. Clerk WARREN KENNETH PAXTON,
Appellee.
APPEAL FROM THE 250TH JUDICIAL DISTRICT COURT TRAVIS COUNTY, TEXAS
TRIAL COURT CASE NO. D-1-GN-14-004694
_______________________
BRIEF FOR APPEALANT
JAMAR OSBORNE, J.D., M.P.A APPELLANT SUI JURIS
P.O. Box 195226
Dallas, TX 75219
Osbr117@aol.com
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL Pursuant to Tex. R. App. P. 38.1(a), the following is a complete list of the names
and addresses of all parties and counsel in this case.
Appellant: Jamar Osborne, P.O. Box 195226, Dallas, TX 75219.
Appellee: Warren Kenneth Paxton “Paxton.”
Appellee’s Counsel: Julie A. Springer and Kevin J. Terrazas, 212 Lavaca St., Suite 200, Austin TX 78701.
STATEMENT OF THE CASE
Nature of the Case: In this statewide election contest, Green Party Candidate
for Texas Attorney General Jamar Osborne “Appellant,”
seeks to disqualify Paxton, Republican Candidate for Attorney General based primarily upon the separation of powers doctrine.
Trial court and judge: Stephen Yelenosky, Presiding Judge, 201st District Court of Travis County, Texas, Cause No. D-1-GN-14-004694.
Trial Court Disposition:On January 22, 2015, the trial court entered an order granting Paxton partial summary judgment as to Appellant’s Original Petition. C.R. 37.
On March 12, 2015, the trial court entered an final order granting Paxton summary judgment. C.R. 46. On April 6, 2015, Appellant filed a Motion for New Trial and For Appointment of Master in Chancery. C.R. 54-
60. On April 8, 2015, the trial court denied Appellant’s Motion. C.R. 53.
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On June 10, 2015, Appellant filed a Notice of Appeal. C.R. 61.
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TABLE OF CONTENTS
Identity of Parties………….……………………………………………………….i
Statement of the case…………………………………………………………….i-ii Table of contents…………………………………………………………….........iii Index of authorities………..…………………………………………………...iv-vi Statement of facts……………………………………………………………….1-2 Issues Presented…………………………………………………………………...2 Standard of review………………………………………………………...…….2-3 Summary of the argument……………………………………………………….3-4 Argument………………………………………………………………………4-16 It was Improper For the District Court to Grant Paxton Summary Judgment Without Any Evidence and In Conjunction with a General Denial……4-10 As a De Facto Member of the Judiciary, Paxton is Ineligible to Serve as Attorney General Under the Doctrine of Separation of Powers…….…10-14 The Court has a Duty to Prevent Paxton from Intruding Upon Appellant's Property and Political Rights by Occupying an Office For Which He is Lawfully Ineligible……………………………………………………15-16 Conclusion and Prayer…………………………………………………………...16 Certificate of service Certificate of compliance Appendix
iii
INDEX OF AUTHORITIES
Cases Aldine Independent School District v. Standley, 280 S.W. 2d. 578 (Tex. 1955)…….......12 Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Cr. App. 1990)………........14 Arrellano v. Texas Employment Comm'n, 810 S.W.2d 767 (Tex. 1991)…….………........6 Boswell v. Handley, 397 S.W. 2d 213 (Tex. 1965)……………………………………….4
Brooks v. First Assembly of God Church of Cleburne, 86 S.W.3d 793 (Tex. App. --Waco
2002)…………………………………………………………………………… 8-9 City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979)………...…… 7
Commission For Lawyer Discipline v. Benton, 1998 Tex. Lexis 121 (Tex. 1998)……...10
Cerda v. BarClays Capital Real Estate Inc., 612 F.3d 781 (5th Cir. 2010)……….…12-13 City of Dallas v. Dallas Consolidated Street Railway Co., 105 Tex. 337 (Tex. 1912)….15
Crain v. Smith, 2000 Tex. App. Lexis 3582 (Tex App. – Corpus Christi 2000.....……...11
Cuyler v. Minns, 60 S.W.3d 209 (Tex. App. – Houston 2001, pet. Denied)……...…….....8 Dickson v. Strickland, 114 Tex. 176 (Tex. 1924)…………………...…………………...15 Ex Parte Wall, 107 U.S. 265 (1883)…………………...………………………………...11 Fung's Kitchen Inc., 2007 Tex. App. LEXIS 4812 (Tex. App. – Houston 2007)…….......8 Gilmore v. Waples, 108 Tex. 167 (Tex. 1916)…………………………......……………15
iv
Great American Reserve Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.
1965)…………….……………………………………………………………...…7 Hatton v. Griggar, 2006 Tex. App. LEXIS 10066 (Tex. App. – Houston 2006)………....6
Hankamer v. Templin. 143 Tex. 572 (Tex. 1945)………………......…………………...10 In re Allcat Claims Service, L.P., 356 S.W.3d 455 (Tex. 2011)………………………....14 In Re Guerra, 235 S.W.3d 392 (Tex. App. – Corpus Christi-Edinburg 2007)…………...3 In Re Lowery, 999 S.W.2d 639 (Review Tribunal of Texas 1998)………………......….13 Irwin v. State, 177 S.W. 2d 970 (Tex. Crim. App. 1994)…………..…………………....12 Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010)…………………………………………7-8 Langever v. Miller, 124 Tex. 80 (Tex. 1934)…………..………………………………..14 McConnell v. Southside Indep. Sch. Dist., 858 S.W. 2d 337 (Tex. 1993)……...……….. 7 Mccullouch v. Maryland, 4 L. Ed. 579 (1819)……………………………………….....11 Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex. 1985)……………..……7 Opal Dent Gibbs et al. v. General Motors Corporation Tex., 450 S.W.2d 827 (Tex.
1970)…................................................................................................................... 7 Poole v. Poole, 1975 Tex. App. Lexis 3334 (Tex. App. – Waco 1975)…………………..5 Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003)…………....…2 Public Utility Commission v. Cofer, 754 S.W.2d 121 (Tex. 1988)…………………….....3 Reynolds v. State of Texas, 967 S.W.2d 493 (Tex. App. – Houston 1998)………..…15-16
v
Rogers v. Ricane Enterprises, Inc. 772 S.W.2d 76 (Tex. 1989)………………………….3 Southwestern Fire & Casualty Company v. Larue, 367 S.W.2d. 162 Tex. 1963)……...4-5 Sowell v. The Kroger Co., 263 S.W.3d 36 (Tex. App. --Houston 2006). ………………...3 The Finance Commission of Texas v. Norward, 418 S.W.3d 566 (Tex. 2013)………….14 The State ex rel. Owners, 63 Tex. 261 (Tex. 1885)…………………………………......15 Texas Workers Compensation Commission v. Garcia, 862 S.W.2d 61 (Tex. App. – San Antonio 1993)…...………………………...…………………………………..…16 Thomas v. Abernathy County Line Indep. Sch. Dist. 290 S.W. 152, 153 (Tex. Comm'n App. 127 judgment adopted)………………….……..…………………………...13 Zorilla v. Aypco Construction II, 2015 Lexis 555 (Tex. 2015)………………...………... 5
Statutes, Rules, and Constitutional Provisions State Bar Rules…………………………………………………………………...……..11 Tex. Att'y Gen. Op. No. GA-0214 (2004)…………………………………………........13 Tex. Const………………………………………………………………………...1, 10, 12 Tex. Elec. Code……………………………………………………………………...….12 Tex. Gov. Code Sect. ………………………………………………………...……..10, 11 Tex. Rev. Civ. Stat. Ann. Art. 320a-1 Sect. 3……………………………………………11 Tex. R. Civ. P.. ……………………………...………………………………………4, 6, 9
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STATEMENT OF FACTS
Jamar Osborne ( Appellant ) is the 2014 Green Party Candidate for Texas
Attorney General. C.R. 4 at ¶ 5. Appellant is a United States Citizen, over the age of 18, has not been determined to be mentally incapacitated, has not been convicted of a felony and has resided continuously in the State of Texas for at least twelve months prior to the Texas statewide election in November 2014. C.R. 4 at ¶ 5. Accordingly, Appellant is a legally qualified candidate for the position of Texas Attorney General. C.R. 4 at ¶ 5.
Warren Kenneth Paxton ( Paxton ) is the 2014 Republican Party Candidate for Texas Attorney General. C.R. 4 at ¶ 6. Paxton is the candidate for Texas Attorney General who received the most number of votes. C.R. 4 at ¶ 6. Paxton is an attorney licensed in the State of Texas and is a member of the State Bar of Texas. C.R. 4 at ¶ 6. As a member of the State Bar of Texas, Paxton is a de facto member of the judiciary and is therefore ineligible to contemporaneously serve as an executive officer. C.R. 4 at ¶ 10. Paxton was not even eligible to be placed on the ballot. C.R. 4 at ¶ 10. Appellant is the only 2014 candidate for Texas Attorney General who is neither a licensed attorney in the State of Texas, nor a member of the State Bar of Texas. C.R. 4 at ¶ 8.
Under Article 4, Section 4 of the Texas Constitution, a person is not elected until the Secretary of State has delivered the election returns to the Speaker of the
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House during the first week of the legislative session after being declaring the person as having the highest number of voters and being constitutionally eligible. C.R. 30. The current legislative session did not begin until January 13, 2015. C.R. 30. However, once Paxton received notice that the election was being challenged, he made arrangements to have former Attorney General Greg Abbott administer his oath of office prior to his term of office and during the wrong legislative session. C.R. 31. The Speaker of the House never had a chance to declare Paxton as the candidate receiving the highest number of votes, nor did the Speaker of the House have a chance to declare Paxton constitutionally eligible. C.R. 31. If Greg Abbott had not sworn-in Paxton prior to his term of office, Greg Abbott would have been required to continue serving as Attorney General and could not be sworn-in as governor. C.R. 31. Issue 1: Whether the district court erred by granting summary judgment. Issue 2. Whether the district court abused its discretion by denying Appellant an opportunity to conduct discovery. All other sections are incorporated by reference.
Standard of Review
A trial court's summary judgment is reviewed de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Courts must review
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summary judgment motions in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Sowell v. The Kroger Co., 263 S.W.3d 36, 38 (Tex. App. --Houston 2006). When the trial court does not specify the basis for its summary judgment, the appealing party must show that the summary judgment was granted in error base on any ground asserted in the motion. Rogers v. Ricane Enterprises, Inc. 772 S.W.2d 76, 79 (Tex. 1989).
An abuse of discretion exists "when the trial court's decision is arbitrary, unreasonable, and without reference to guiding principles." Id. A trial court's clear failure to analyze or apply the law correctly even in an unsettled area of law, is an abuse of discretion and may result in reversal by extraordinary writ. See In Re: Guerra, 235 S.W.3d 392, 403 (Tex. App. – Corpus Christi-Edinburg 2007). Courts not only have the power to ensure that judicial proceedings remain truly adversary in nature, but have a duty to do so. Public Utility Commission v. Cofer, 754 S.W.2d 121, 124 (Tex. 1988).
SUMMARY OF THE ARGMENT
In this case, Appellant argues that the district court erred by granting Paxton summary judgment without presenting any evidence and despite the fact that he filed a general denial, putting all material questions of fact at issue. Appellant further argues that the district court treated Paxton's motion for summary judgment as a no-evidence motion for summary judgment and was therefore improper given
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that Appellant was not given an opportunity for discovery and given that Appellant presented more than a scintilla of probative evidence raising a genuine issue of material fact.
ARGUMENT
It was Improper For the District Court to Grant Paxton Summary Judgment Without Any Evidence and In Conjunction with a General Denial A traditional summary judgment may only be granted where the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Tex. R. Civ. P. 166(a). A traditional motion for summary judgment may also be based on uncontroverted testimonial evidence of an interested witness if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. Id. at 166(a)(c). Pleadings simply outline the issues; they are not evidence, even for summary judgment purposes. Boswell v. Handley, 397 S.W. 2d 213 at **6-7 (Tex. 1965). A motion for summary judgment may only be treated as a pleading where it is verified by a sworn affidavit. Id. at *12.
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A general denial is not a plea; it merely imposes on the plaintiff the duty to produce and offer evidence. Southwestern Fire & Casualty Company v. Larue, 367 S.W.2d. 162 at *9 (Tex. 1963). A general denial is sufficient in law to raise issues of fact with respect to recovery matter essential to the plaintiff's right of recovery, save only those matters required to be denied under oath and puts the burden on the plaintiff to prove all such matters. Id. at *8. General denials raise issues of fact; traditional summary judgments are therefore improper. Id. at *9. A Texas Appellate Court reversed and remanded a trial court's decision to grant summary judgment, holding that summary judgment was improper because the defendant filed a general denial. See Poole v. Poole, 1975 Tex. App. Lexis 3334 at **3 and 10 (Tex. App. – Waco 1975). By filing a general denial, the defendant creates genuine issues of material fact. See Id.
An affirmative defense is a defendant's assertion of facts and arguments that if true, will defeat the plaintiff's claims even if all the allegations in the complaint are true. Zorilla v. Aypco Construction II, 2015 Lexis 555 at **29-30 (Tex. 2015). An affirmative defense acknowledges the existence of prima facie liability but asserts a proposition which if true would avoid liability. Id. at 30. Affirmative defenses are based on a different set of facts from those establishing the cause of action. Id. Under Tex. Civ. P. 94 and 95, affirmative defenses must be specifically plead and may not be shown under a general denial.
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In the instant case, Paxton filed a general denial and claimed an affirmative defense with no accompanying facts. Paxton presented absolutely no summary judgment evidence. Paxton presented no testimony, made no admissions, filed no affidavits and took no depositions. Oral arguments are not permitted at a hearing on a traditional motion for summary judgment. See Arrellano v. Texas Employment Comm'n, 810 S.W.2d 767, 770 (Tex. 1991) (citing Tex. R. Civ. P. 166a(c). However, the District Court ordered the parties to make oral argument over Appellant's verbal objection. Therefore, the only reasonable conclusion that can be made is that the District Court did not treat Paxton's motions for summary judgment as traditional, but treated them as motions for no-evidence summary judgment.
The distinction between a traditional motion for summary judgment and a no-evidence motion for summary judgment is important because they invoke different standards of review. Hatton v. Griggar, 2006 Tex. App. LEXIS 10066 at **8-9 (Tex. App. – Houston 2006). Under a traditional motion for summary judgment, the movant must show that there is no genuine issue of material fact and that judgment should be granted as a matter of law. Id. at *9. A defendant is only entitled to traditional summary judgment if he conclusively negates at least one of the essential elements of each of the plaintiff's causes of action or conclusively establishes all elements of an affirmative defense is entitled to summary
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judgment. Id. at *10. A defendant moving for summary judgment must either (1) disprove at least one element of the plaintiff's theory of recovery, or (2) plead and conclusively establish each essential element of an affirmative defense. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).
[S]ummary judgments must stand or fall on their own merits; a nonmovant's failure to answer or respond cannot supply by default the summary judgment proof necessary to establish the movant's right. McConnell v. Southside Indep. Sch. Dist., 858 S.W. 2d 337, 343 (Tex. 1993). For the evaluation of a motion for partial summary judgment, a court must take evidence favorable to the non-movant as true. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Evidence favoring the movant's position cannot be considered unless it is uncontroverted. Great American Reserve Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). In deciding a traditional motion for summary judgment, the issue is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff's claim or cause of action, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. Opal Dent Gibbs et al. v. General Motors Corporation Tex., 450 S.W.2d 827, 828 (Tex. 1970).
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No-evidence summary judgments may only be granted where there is: 1. a complete absence of evidence of a vital fact; 2. the court is barred by the rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; the evidence offered to prove a vital fact is no more than a mere scintilla; or 4. the evidence establishes conclusively the opposite of the vital fact. Jelinek v. Casas, 328 S.W.3d 526 at **10-11 (Tex. 2010). A no-evidence summary judgment is improper if the respondent brings forth more than a scintilla of probative evidence raising a genuine issue of material fact. Ton's Remodeling v. Fung's Kitchen Inc., 2007 Tex. App. LEXIS 4812 at *6 (Tex. App. – Houston 2007).
Conclusory or general motions for no-evidence summary judgment are not permitted. See Cuyler v. Minns, 60 S.W.3d 209, 212 (Tex. App. – Houston 2001, pet. Denied). No-evidence summary judgments must be reviewed in the light most favorable to the non-movement. Brooks v. First Assembly of God Church of Cleburne, 86 S.W.3d 793 at n.2 (Tex. App. --Waco 2002). A no-evidence summary judgment motion will be defeated if the non-movant produces more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. A movant for no-evidence summary judgment has the burden to produce accompanying evidence to said motion showing that except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is
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entitled to judgment as a matter of law on the issues expressly set out in the motion. Id. at 796.
A no-evidence motion for summary judgment is proper only after [emphasis added] adequate time for discovery has been given. Tex. R. Civ. P. 166(a)(i). Additionally, a no-evidence motion for summary judgment must expressly state the elements as to which there is no evidence. Id. The court may grant the motion only after the respondent is given an opportunity to produce summary judgment evidence raising a genuine issue of material fact. See Id.
In the instant case, Paxton's motion for summary judgment was entirely conclusory with no supporting facts or evidence and failed to identify any element of Appellant's claim for which there was no evidence. The district court granted a partial summary judgment despite the fact that Paxton had filed a general denial and an affirmative defense putting all material issues of fact in dispute. See C.R. 10-19; See also C.R. 37. Paxton has not even admitted that as member of the Texas Bar, he is a de facto member of the Texas judiciary.
Appellant specifically requested an opportunity to conduct discovery. C.R.
28. However, the district court granted summary judgment without ever permitting Appellate an opportunity to conduct discovery. Given that Paxton has presented no summary evidence, this was clearly improper. The district court based its
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judgments on improper oral testimony and improper inferences drawn based on its bias that a licensed attorney should not be precluded from serving in an executive office. The district court did not view Appellant's Petition in the light most favorable to Appellant, but viewed it in the light most favorable to Paxton simply based on the controversial nature of this case. As a De Facto Member of the Judiciary, Paxton is Ineligible to Serve as Attorney General Under the Doctrine of Separation of Powers It is beyond dispute that attorneys are members of the judiciary. District Attorneys and County Attorneys fall directly under the judicial branch. See Tex. Const. Art. 5 Sect. 21. Additionally, law licenses are issued by the Supreme Court of Texas. See Tex. Gov. Code Sect. 82.021. Attorneys are required to take an oath of office [emphasis added] and to become officers of the court. Hankamer v. Templin. 143 Tex. 572, 576 (Tex. 1945). Attorneys may be disciplined by the Supreme Court of Texas, held liable for punishment, held in contempt and/or removed from office [emphasis added]. Id.
An attorney is not merely a person or a lawyer. Commission For Lawyer Discipline v. Benton, 1998 Tex. Lexis 121 at *11 (Tex. 1998). He is an intimate and trusted and essential part of the machinery of justice, an 'officer of the court in the most compelling sense. Id. The license granted by the court requires
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members of the bar to conduct themselves in a manner compatible with the role of the courts in the administration of justice. Id. at **13-14. The state may even regulate an attorney's speech. Id. at 11.
A lawyer has always been regarded as an officer of the court. Crain v.
Smith, 2000 Tex. App. Lexis 3582 at *6 (Tex App. – Corpus Christi 2000). By preparing pleadings and affidavits, attorneys set the judicial machinery in motion. Id. at *12. Similar to judicial immunity, attorneys are protected with absolute privilege. This privilege protects an attorney who makes defamatory statements in relation to a judicial proceeding, even if the attorney is aware that the statement is false. Id.
A state officer may not have a direct or indirect interest, including financial and other interests, or engage in a business transaction or professional activity, or incur any obligation of any nature that is in substantial conflict with the proper discharge of the officer's or employee's duties in the public interest. Tex. Gov. Code Sect. 572.001. The State Bar of Texas is the administrative agency of the judiciary. Tex. Gov. Code Sect. 81.011. Members of the State Bar are required to pay dues in order to maintain active law licenses. State Bar Rule, Art. 1 Section 6. These dues are analogous to a tax. It violates the separation of powers doctrine for the judiciary to exercise tax authority over the executive branch. The power to tax is the power to destroy. See Mccullouch v. Maryland, 4 L. Ed. 579, 607 (1819).
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Attorneys are regulated by the Supreme Court of Texas. See Tex. Rev. Civ. Stat. Ann. Art. 320a-1 Sect. 3. Courts have the power to discipline attorneys through fines and imprisonment; courts may also strike an attorney's name from the roll. Ex Parte Wall, 107 U.S. 265, 272 (1883).
A candidate is not eligible for public office where a provision in the Texas Constitution or state statute prescribes eligibility requirements. See Tex. Elec. Code. Ann. § 141.001. An elected state officer may only hold a non-elective office contemporaneously where there is no conflict between the two offices. See Tex. Const. Art. 16 Sect. 40 (c). To determine whether there is a conflict, courts may look to statutes, ordinances, or constitutional provisions governing the officer to determine whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others. Aldine Independent School District v. Standley, 280 S.W. 2d. 578, 583 (Tex. 1955). In Irwin v. State, the court held that Article XVI, Section 40 of the Texas Constitution barred police officers from contemporaneously serving as special deputy sheriffs. See Irwin v. State, 177 S.W. 2d 970, 973 (Tex. Crim. App. 1994). The court reasoned that police officers and deputy sheriffs were both civil office[s] of emolument in violation of Article XVI, Section 40 of the Texas Constitution. Id.
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The Texas Attorney General’s Office falls under the executive branch. See Tex. Const. Art. § 22. Attorneys are de facto members of the judiciary. See Supra. Tex. Const. Art. 2, Section 1 requires separation of powers within Texas government. In interpreting the Texas Constitution, courts must "rely heavily on its literal text and . . . give effect to its plain language." Cerda v. BarClays Capital Real Estate Inc., 612 F.3d 781, 788 (5th Cir. 2010).
When a public official is employed by two different governmental entities, he is responsible to two different masters. See Tex. Att'y Gen. Op. No. GA-0214 (2004) at 3. Certain dual government employments violate the common doctrine of incompatibility. Id. Dual employments are incompatible when the public official has conflicting allegiances or is subject to conflicting orders. A person may not hold two offices where his loyalties and duties conflict. See Thomas v. Abernathy County Line Indep. Sch. Dist. 290 S.W. 152, 153 (Tex. Comm'n App. 127 judgment adopted).
"The complete independence of the courts of justice is peculiarly essential in a limited constitution." In Re Bill R. Lowery, 999 S.W.2d 639 at *22 (Review Tribunal of Texas 1998) (quoting Alexander Hamilton, The Federalist No. 78, at 2:292 (1788). An independent and vigorous judiciary is essential as a bulwark to protect the rights of our citizens. Id.
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The principle of separation of powers is foundational for federal and state governments in this country and firmly embedded in our nation's history. The Texas Constitution mandates:
The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. The Finance Commission of Texas v. Norward, 418 S.W.3d 566 at **3-4 (Tex. 2013).
Exceptions to the constitutionally mandated separation of powers are never to be implied in the least; they must be 'expressly permitted' by the Constitution itself. Id. at *4. The doctrine of separation of powers is neither subtle nor unimportant. In re Allcat Claims Service, L.P., 356 S.W.3d 455, 473 (Tex. 2011).
The separation of powers principle is the very foundation of the government of the United States and of the several States, is essential to the preservation of the rights and liberties of the people, and should be thoughtfully and faithfully observed by all clothed with the powers of government. Langever v. Miller, 124
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Tex. 80, 99 (Tex. 1934). [T]he Judicial Department cannot be clothed with Executive or Legislative power; and the Legislative 'magistracy' cannot exercise the functions of either the Executive or the Judicial Departments. Id. The greatest threat to liberty is the accumulation of power in a single branch of government. Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Cr. App. 1990). The Court has a Duty to Prevent Paxton from Intruding Upon Appellant's Property and Political Rights by Occupying an Office For Which He is Lawfully Ineligible The Texas Supreme Court has consistently drawn a distinction between the power to decide the result of an election which is a political question, and the power to decide the right to hold an office after an election which is a judicial question. Dickson v. Strickland, 114 Tex. 176, 192 (Tex. 1924). Courts have the authority to determine the validity of elections and in cases of invalidity to protect property rights which may be wrongfully impaired if such rights are not enforced. City of Dallas v. Dallas Consolidated Street Railway Co., 105 Tex. 337, 341 (Tex. 1912).
An office of profit is property, as much as any other article that can be possessed. The State ex rel. Owners, 63 Tex. 261, 267 (Tex. 1885). When the lawful owner of it is kept out of its possession by an intruder, he has just as much
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right to avail himself of this property through the courts as he would be able to recover any other property through the courts. Id. There is no distinction between civil rights and political rights; a court may not shut its doors against the enforcement of such rights. Gilmore v. Waples, 108 Tex. 167 at *31 (Tex. 1916).
When dealing with an issue of constitutional law, "It is emphatically the province and duty of the judicial department to say what the law is. Reynolds v. State of Texas, 967 S.W.2d 493, 497 (Tex. App. – Houston 1998) (quoting Marbury v. Madison, 5 U.S. 137, 176 (1803). If judges were to take their constitutional duties seriously, they would not dismiss due course of law, equal protection and the right to trial by jury guaranteed by the sovereign people as a mere grab, smoke-screen or window dressing. Texas Workers Compensation Commission v. Garcia, 862 S.W.2d 61 at *157 (Tex. App. – San Antonio 1993).
CONCLUSION AND PRAYER
Based on the foregoing reasons, the district court erred by granting partial summary judgment and summary judgment and abused its discretion by denying Appellant an opportunity to conduct discovery. Accordingly, the district court's judgment should be reversed and remanded. Appellant further requests such additional relief to which he may be entitled.
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/s/ Jamar Osborne Jamar Osborne, J.D., M.P.A.
Appellant Sui Juris P.O. Box 195226 Dallas, TX 75219 817-400-0091
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been filed and forwarded on October 9, 2015 to Julie A. Springer of Weisbart Springer Hayes, L.L.P, counsel for Defendant Warren Kenneth Paxton electronically through eFileTexas.
/s/ Jamar Osborne
Jamar Osborne, J.D., M.P.A.
Appellant Sui Juris
P.O. Box 195226
Dallas, TX 75219
817-400-0091
CERTIFICATE OF COMPLAINCE I hereby certify that this brief is in compliance with the rules governing the length of briefs prepared by electronic means. The brief was prepared using Microsoft Word 2010 to prepare this brief, the total word count, not including those section excluded by rule is 3,785.
/s/ Jamar Osborne
Jamar Osborne, J.D., M.P.A.
Appellant Sui Juris
P.O. Box 195226
Dallas, TX 75219
817-400-0091
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