ACCEPTED 03-15-00374-CV 7783219 THIRD COURT OF APPEALS AUSTIN, TEXAS 11/11/2015 2:02:53 PM JEFFREY D. KYLE November 12, 2015 CLERK No. 03-15-00374-CV
In the Third Court of Appeals Austin, Texas ____________________________________________
JAMAR OSBORNE, APPELLANT, V.
WARREN KENNETH PAXTON, APPELLEE. ____________________________________________
On Appeal from the 250th District Court, Travis County, Texas (No. D-1-GN-14-004694) The Hon. Stephen Yelenosky, Presiding ____________________________________________
BRIEF FOR APPELLEE _____________________________________________
Kevin J. Terrazas State Bar No. 24060708 Julie A. Springer State Bar No. 18966770 WEISBART SPRINGER HAYES LLP 212 Lavaca Street, Suite 200 Austin, Texas 78701 [Tel.] (512) 652-5780 [Fax] (512) 682-2074
ATTORNEYS FOR APPELLEE TABLE OF CONTENTS
Page
INDEX OF AUTHORITIES ................................................................................ii
STATEMENT REGARDING ORAL ARGUMENT ................................................. iv
INTRODUCTION ............................................................................................. 1
STATEMENT OF FACTS .................................................................................. 2
SUMMARY OF THE ARGUMENT ...................................................................... 4
ARGUMENT ................................................................................................... 5
I. SEPARATION OF POWERS DOES NOT PROHIBIT A LICENSED ATTORNEY FROM SERVING AS ATTORNEY GENERAL. ........................... 5
A. The Texas Supreme Court Has Already Determined That the Judicial Nature of the Office of Attorney General Does Not Violate Separation of Powers. ................... 5
B. Appellant’s Requested Relief Would Have Far-Reaching and Detrimental Consequences at the Highest Levels of Texas Government. .................................................................. 9
II. THERE WERE NO FACT ISSUES PRECLUDING SUMMARY JUDGMENT. ....................................................................................... 10
III. APPELLANT’S OTHER ARGUMENTS ARE UNAVAILING AND HAVE BEEN WAIVED. .................................................................................. 11
PRAYER....................................................................................................... 13
CERTIFICATE OF COMPLIANCE .................................................................... 14
CERTIFICATE OF SERVICE ........................................................................... 15
i INDEX OF AUTHORITIES
CASES PAGE(S) Brady v. Brooks, 89 S.W. 1052 (Tex. 1905)............................................................... 5, 6 Medrano v. Texas, 421 S.W.3d 869 (Tex. App.—Dallas 2014, pet. denied) ............... 6, 7 Moody v. Baum, 452 S.W.2d 699 (Tex. 1970)............................................................... 9 Osborne v. Beacon Hill Staffing Group, 2014 U.S. Dist. LEXIS 60725 (N.D. Tex. Apr. 14, 2014) ................. 2 Osborne v. State of Texas, et al., 2013 U.S. Dist. LEXIS 145044 (W.D. Tex. Oct. 7, 2013) ................. 2 Poole v. U.S. Life Title Ins. Co., 1975 Tex. App. LEXIS 3334 (Tex. Civ. App.—Waco Nov. 1, 1975, no writ) ...................................................................... 11 Richard v. Reynolds Metal Co., 108 S.W.3d 908 (Tex. App.—Corpus Christi 2003, no pet.) .......... 12 Southwestern Fire & Casualty Co. v. Larue, 367 S.W.2d 162 (Tex. 1963)............................................................. 11 Stiles v. Resolution Trust Corp., 867 S.W.2d 24 (Tex. 1993)............................................................... 12 Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640 (Tex. 1996)............................................................. 12 Willis v. Potts, 377 S.W.2d 622 (Tex. 1964)............................................................... 9 STATUTES TEX. GOV’T CODE § 81.101 ........................................................................... 7 TEX. CONST. ART. II ..................................................................................... 5 TEX. CONST. ART. IV .................................................................................... 7
OTHER AUTHORITIES http://ballotpedia.org/Texas_Attorney_General_election,_2014 .............. 3
ii Statistical Profile of the State Bar of Texas Membership, available at https://www.texasbar.com/AM/Template.cfm?Section=Demographi c_and_Economic_Trends&Template=/CM/ContentDisplay.cfm&Co ntentID=30865. ................................................................................. 8
iii STATEMENT REGARDING ORAL ARGUMENT
This case involves a straightforward legal question of whether a
licensed attorney can serve as an elected officer other than in the
Judiciary Department as has been done for decades in Texas and
throughout the country. This issue has already been effectively decided
by the Texas Supreme Court and oral argument is unlikely to assist the
Court in deciding the merits. Therefore, Appellee respectfully requests
that the Court decide this appeal without oral argument. However, if the Court should require oral argument, Appellee requests that he be
given an opportunity to participate.
iv INTRODUCTION
Jamar Osborne, the Green Party Candidate for Attorney General
in 2014, filed suit against the election winner, Attorney General
Kenneth Paxton based on the novel theory that a licensed attorney can
serve in the Judiciary—but not in any other branch of government—
without violating the separation of powers doctrine. Ironically, had Mr.
Osborne passed the bar, he agrees that his own argument would
prevent him from serving as Attorney General. After losing two summary judgments in which he was given a full
opportunity to present his case,1 Mr. Osborne has appealed primarily
based on incorrect assertions that a general denial precludes a party
from seeking summary judgment and that the district court decided a
no-evidence motion for summary judgment. Of course, General
Paxton’s summary judgment motions were of the traditional variety
and were based on the legal premise that nothing in the Texas
Constitution, statutes, or common law prevents an attorney from
serving in the Executive Department (or in the Legislature).
Perhaps in an attempt to avoid having to directly respond to
General Paxton’s motions below, Mr. Osborne went on a rampage—
besmirching counsel, the Travis County District Court judges, and the
judiciary in the rest of the state. If Mr. Osborne had passed the bar, his
1Mr. Osborne did not appear at the second summary judgment out of protest. CR 48.
1 conduct would have likely led to a disciplinary proceeding. That he did
not does not excuse his conduct or create a basis for his suit. The district court correctly and professionally explained to Mr.
Osborne that he was not entitled to any relief. General Paxton
respectfully requests that the Court uphold the district court’s rulings
and affirm its take-nothing judgment.
STATEMENT OF FACTS Appellant Jamar Osborne is a citizen of Texas who attended law school but failed to pass the bar. CR 4, 13; RR 17. Unhappy with those
results, Osborne has since made it a practice of suing others on novel
constitutional claims related to that examination. For example, Osborne recently filed suit against the State of Texas claiming that the
bar exam is an unconstitutional restriction on his free speech. CR 13;
Osborne v. Texas, 2013 U.S. Dist. LEXIS 145044 (W.D. Tex. Oct. 7, 2013). Osborne also sued a legal staffing agency when he was not hired
for a job alleging that the bar admission requirement is unlawful and
racially discriminatory. CR 14; Osborne v. Beacon Hill Staffing Group, 2014 U.S. Dist. LEXIS 60725 (N.D. Tex. Apr. 14, 2014). This case is
another in the now-long line of Appellant’s challenges to the Texas bar
examination. In contrast to Appellant, General Paxton is a long-time public
servant who has paid his dues as a Texas State Senator and
Representative since 2003 and who is a licensed attorney. CR 4, 14.
2 Choosing not to seek reelection as a state senator, General Paxton ran
and was selected as the Republican nominee for the statewide race for Attorney General. CR 14. In the general election, General Paxton
defeated Democratic Party candidate Sam Houston, Libertarian Party
candidate Jaime Balagia, and Green Party candidate Appellant
Osborne. Id. Paxton received nearly 59% of the popular vote compared
to Appellant’s 0.6%. Id. (citing http://ballotpedia.org/Texas_Attorney_
General_election,_2014).
Following his loss, and in keeping with his modus operandi,
Appellant filed suit against General Paxton on November 12, 2014,
solely for the reason that General Paxton passed the Texas bar exam and Osborne did not. CR 3. After answering, on December 22, 2014,
General Paxton filed his first motion for summary judgment against all
of the claims in Appellant’s Original Petition. CR 13. While that
motion was pending, Appellant served a supplemental petition and
sought a temporary restraining order. CR 30-34. General Paxton’s first
motion for summary judgment was heard and granted on January 22,
2015. RR 1; CR 37.
General Paxton filed his second motion for summary judgment as
to all claims in Appellant’s supplemental petition on February 12, 2015. Mr. Osborne did not respond to General Paxton’s motion and, despite
knowledge of the hearing, did not attend the same. CR 48. The district
3 court granted General Paxton’s second motion for summary judgment
on March 12, 2015, rendering a take-nothing judgment. Following the judgment, Mr. Osborne filed a “Motion for New
Trial and for Appointment of Master in Chancery,” explaining that “all
judges who have presided over this action had a vested interest in
siding with Defendant.” CR 50. Appellant therefore sought to exclude
all judges in Texas because “It is impossible for any member of the
Texas Bar to be objective in handling Plaintiff’s claims.” Id. After the
motion for new trial was denied, Appellant filed his notice of appeal.
SUMMARY OF THE ARGUMENT The practice of attorneys running for and being elected to Attorney General is a long-standing tradition in Texas—including
Governor Abbott, who previously served as Attorney General. Nothing
in the Texas Constitution or any statute has ever precluded a licensed
attorney from serving in the Executive or Legislative Departments. In
fact, to sustain Appellant’s challenge would upend the entire structure
of Texas Government as it now exists. Thankfully, the Texas Supreme
Court has already decided this issue—holding that the Attorney
General serving in a judicial capacity would not violate the separation
of powers doctrine. And because a general denial does not preclude
summary judgment when, as here, there are no material fact issues, the
district court properly rendered a take-nothing judgment. Appellant’s
4 other arguments are similarly without merit and, in any case, have
been waived.
ARGUMENT
I. SEPARATION OF POWERS DOES NOT PROHIBIT A LICENSED ATTORNEY FROM SERVING AS ATTORNEY GENERAL.
A. The Texas Supreme Court Has Already Determined That the Judicial Nature of the Office of Attorney General Does Not Violate Separation of Powers. Appellant’s entire case is based on the erroneous conclusion that a
licensed attorney in Texas cannot serve in the Executive Department
solely because he/she passed the Texas bar examination. Appellant’s
argument rests on the incorrect application of the separation of powers
doctrine found in Texas Constitution, Art. II § 1.2 But the Texas
Supreme Court has already addressed and rejected the contention that
the Constitutional role of the Attorney General violates the separation
of powers doctrine.
In facing a challenge to the role of the Attorney General, the Supreme Court in Brady v. Brooks recognized the judicial nature of the
office:
The duties imposed upon [the Attorney General] are both executive and judicial, that is, they are judicial in the sense, that he is to represent the state in some cases brought in the court. The very name imports, even in ordinary language,
2 Article II § 1 provides, “no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.”
5 that he is the chief law officer of the state and is that in use in all common law statutes to designate such officer.
89 S.W. 1052, 1056 (Tex. 1905). The Court continued, “Section 22 of article 4 might appropriately have been placed in article 5, and we
think it should be construed precisely as if it had been so placed.” Id.
If, as the Supreme Court has explained, the Constitutional provision
related to the office of Attorney General—Article IV § 22—is to be
construed as if placed in Article 5 (the Judiciary), then there is little
question that it would be proper, albeit not required, for the Attorney
General to be a licensed attorney.
The Fifth Court of Appeals, relying on Brady v. Brooks, also
recently rejected a challenge related to the Attorney General’s executive and judicial roles based on the separation of powers doctrine. Medrano
v. Texas, 421 S.W.3d 869, 877-80 (Tex. App.—Dallas 2014, pet. denied).
In Medrano, a challenge was brought by a suspended Justice of the Peace to his conviction of illegal voting because he claimed that the
Texas Election Code Chapter 273 impermissibly vests the Attorney
General with judicial authority, despite the Attorney General being
part of the Executive Department. Id. at 877. In an analysis of
precedent from the Texas Supreme Court and Court of Criminal
Appeals, the Fifth Court held that the Attorney General’s prosecution
did not violate the separation of powers doctrine because “the
legislature’s enactment of chapter 273 does not delegate a power to one
6 branch that is more properly attached to another nor does it allow one
branch to unduly interfere with another.” Id. at 880. These decisions make perfect sense. Texas Constitution Article
IV, § 22 provides that “[t]he Attorney General shall represent the State
in all suits and pleas in the Supreme Court of the State in which the
State may be a party, and . . . from time to time, in the name of the
State, take such action in the courts as may be proper and
necessary . . . .” In addition, the Attorney General must “whenever
sufficient cause exists, . . . give legal advice in writing to the Governor
and other executive officers, when requested by them.” Id. Since only a
licensed attorney may give advice or render any service “requiring the use of legal skill or knowledge,” TEX. GOV’T CODE § 81.101,3 the
Constitution at least suggests that the citizens of Texas have approved
that the Attorney General could (and most likely should) be a licensed
3 Section 81.101(a) of the Texas Government Code states: In this chapter the “practice of law” means the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined. Section 81.102(a) of the Texas Government Code states who may practice law in Texas: Except as provided by Subsection (b), a person may not practice law in this state unless the person is a member of the state bar.
7 attorney.4 Put another way, although being a licensed attorney is not
explicitly required by state law, it is definitely not prohibited. Appellant’s separation of powers argument finds its foundation in
an erroneous premise—that a member of the bar automatically holds an
office in the Judiciary of the state government. Appellant Br. at 10.
Although it is true that licensed attorneys have been called officers of
the court, that is far different from holding an elected office in the
Judiciary. Indeed, to accept Appellant’s argument would suggest that
the over 86,000 active attorneys in the state each holds a government
office—the vast majority of which without any duties, responsibilities,
or compensation. See Statistical Profile of the State Bar of Texas Membership, available at https://www.texasbar.com/AM/Template.cfm?
Section=Demographic_and_Economic_Trends&Template=/CM/Content
Display.cfm&ContentID=30865. That simply is not the case. An
attorney, while an officer of the court, does not hold office in the
government simply by being licensed. The corollary also is true—an
elected official does not hold a non-elective office (and is not otherwise
employed by the Judiciary) simply by being a licensed attorney.
Appellant also is incorrect that paying bar dues would violate
separation of powers. Appellant Br. at 11-12. Bar dues are not taxes
and the Judiciary does not exercise authority over a licensed
4 While not at issue in this proceeding, as a non-licensed attorney, such language could arguably prevent Appellant from serving as Attorney General because ethically he would not be able to fulfill the constitutional requirements of the office.
8 practitioner through bar dues.5 Regardless, the harshest recourse for
failure to pay bar dues is the suspension or revocation of the attorney’s license—something that is not statutorily required to hold the office of
Attorney General. Therefore, there would be no way for the State Bar
to exercise authority over the Attorney General’s office simply due to
the requirement to pay a bar due.
The Texas Supreme Court has explicitly stated that
“constitutional and statutory provisions which restrict the right to hold
public office ‘should be strictly construed against ineligibility.’” Moody v.
Baum, 452 S.W.2d 699, 702 (Tex. 1970) (quoting Willis v. Potts, 377
S.W.2d 622, 623 (Tex. 1964)). Here, there is no constitutional or statutory prohibition on a licensed attorney serving in the Executive
Department, much less a provision that must be construed against
ineligibility.
B. Appellant’s Requested Relief Would Have Far- Reaching and Detrimental Consequences at the Highest Levels of Texas Government. Not only are Appellant’s claims unsupported by law, if accepted,
they would have far reaching and detrimental consequences. What
Appellant seeks here is to be sworn in as Attorney General of Texas,
having received only 0.6% of the popular vote as the Green Party
candidate. But what Appellant seeks is actually much more; he seeks
5The State Bar does “tax” attorneys through the Attorney Occupation Tax, but as a government employee, the Attorney General is exempted from this tax.
9 to upend the entire electoral scheme and current government in one fail
swoop. If Appellant is successful, Governor Abbott (a licensed attorney) would also be at risk to resign. Indeed, Appellant’s argument suggests
that the only elected offices that a licensed attorney could fill would be
in the Judiciary Department—meaning all licensed attorneys who
currently serve as state legislators or senators are violating the
Constitution. Practically, Appellant’s argument could not possibly be
correct. Ironically, had Appellant passed the bar as intended, his
requested relief would prohibit even him from serving as Attorney
General.
II. THERE WERE NO FACT ISSUES PRECLUDING SUMMARY JUDGMENT. Appellant’s first and primary argument is that summary judgment was improper because General Paxton filed a general denial.
Appellant Br. at 4. But as the district court explained to Mr. Osborne
at the first summary judgment hearing, “for the sake of summary judgment, the Court has to assume that your facts are true. And in
fact, their motion does assume that your facts are true. So that’s sort of
Law 101.” RR 19. The only important fact in this case is whether
General Paxton passed the bar. See RR 20 (“The fact that’s important
to your argument is that Mr. Paxton is a licensed attorney. You are
alleging that he’s a licensed attorney and because he is, he cannot hold
the office of attorney general. Those are the facts. They’re agreeing.”).
10 The filing of a general denial (along with an affirmative defense that
Mr. Osborne’s petition fails to state a claim for which relief can be granted, CR 10-11) does not create a fact issue that would prevent
summary judgment.6
III. APPELLANT’S OTHER ARGUMENTS ARE UNAVAILING AND HAVE BEEN WAIVED. Mr. Osborne other arguments—that the district court decided a
no-evidence motion for summary judgment and that Mr. Osborne has a
property right in the office of Attorney General—also are unavailing
and, regardless, have been waived. First, despite devoting nearly a quarter of his brief to the issue,
there is no support for Appellant’s contention that General Paxton filed
a no-evidence motion for summary judgment. Indeed, nowhere in the record are the words “no evidence.” Instead, Mr. Osborne repeatedly
asserted below that General Paxton’s motion was a traditional motion
for summary judgment. CR 27 (“When a defendant moves for traditional summary judgment”); CR 48 (same); CR 26 (describing
General Paxton’s motion as a “Tex. R. Civ. P. 166A” motion); CR 48
(providing standard for traditional motion for summary judgment).
6 Mr. Osborne’s case law support does not say otherwise. In fact, in his primary case on this point, Southwestern Fire & Casualty Co. v. Larue, summary judgment was affirmed despite a general denial. 367 S.W.2d 162, 163 (Tex. 1963). Also, Poole v. U.S. Life Title Ins. Co., did not reverse the grant of summary judgment because a general denial was filed but because material fact questions existed as shown by the evidence. 1975 Tex. App. LEXIS 3334, *8-10 (Tex. Civ. App.—Waco Nov. 1, 1975, no writ).
11 Moreover, “Where a summary judgment motion does not
unambiguously state that it is filed under rule 166a(i) and does not strictly comply with the requirements of that rule, it will be construed
as a traditional summary judgment motion.” Richard v. Reynolds Metal
Co., 108 S.W.3d 908, 910 (Tex. App.—Corpus Christi 2003, no pet.).
There is no question that General Paxton’s motions were of the
traditional variety. In addition, Mr. Osborne waived this issue by
failing to raise it below.7 Second, Mr. Osborne does not have a property right in an office to
which he was never elected. A candidate receiving 0.6% of the vote is
hardly the “lawful owner” of the office. Appellant Br. at 15. Regardless,
again, Mr. Osborne failed to raise this issue in the district court and is
thus precluded from raising it here. See Stiles v. Resolution Trust
Corp., 867 S.W.2d 24, 26 (Tex. 1993) (“The effect of the 1971 and 1978 changes . . . is to unequivocally restrict the trial court’s ruling to issues
raised in the motion, response, and any subsequent replies . . . . [W]e
believe that the reasons for the rule in the trial court apply equally in the appellate court . . . .”).
7 Similarly, to the extent the Court may determine that Appellant raises any issue as to the failure of the district court to order discovery, that issue was waived when Appellant failed to file a verified motion for continuance. See Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) (“When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance.”).
12 PRAYER General Paxton has rightfully been elected by the people to serve
as Attorney General of Texas. The fact that he is a licensed attorney
does not prevent him from effectuating the people’s will under either
the Constitution or State law. General Paxton, therefore, respectfully asks the Court to affirm the take-nothing judgment of the district court.
Respectfully submitted,
By: /s/ Kevin J. Terrazas Kevin J. Terrazas kterrazas@wshllp.com Julie A. Springer jspringer@wshllp.com WEISBART SPRINGER HAYES LLP 212 Lavaca Street, Suite 200 Austin, Texas 78701 [Tel.] (512) 652-5780 [Fax] (512) 682-2074
ATTORNEYS FOR APPELLEE
13 CERTIFICATE OF COMPLIANCE
I certify that:
1. This brief complies with the type-volume limitation of Federal
Rule of Appellate Procedure 9.4(i)(2)(B) because it contains 3,033
words, excluding the parts of the brief exempted by Federal Rule
of Appellate Procedure 9.4(i)(1).
/s/ Kevin J. Terrazas Kevin J. Terrazas
14 CERTIFICATE OF SERVICE
I certify that this Brief of Appellee was filed with the Court by
electronic format, on the 11th day of November, 2015, and a copy of the
Brief was served on Appellant, as listed below on the same date:
Jamar Osborne P.O. Box 195226 Dallas, TX 75219
APPELLANT