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.
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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
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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
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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
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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
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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.
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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.
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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.
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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
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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
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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.
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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
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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
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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.
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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.
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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).
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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
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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
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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
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