Johnny Partain v. State of Texas

Opinion

ACCEPTED 15-25-00005-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 5/28/2025 5:18 PM No. 15-25-00005-CV CHRISTOPHER A. PRINE CLERK FILED IN 15th COURT OF APPEALS AUSTIN, TEXAS

In The 5/28/2025 5:18:57 PM CHRISTOPHER A. PRINE

Fifteenth Court Of Appeals Clerk

JOHNNY PARTAIN Appellant

v.

STATE OF TEXAS Appellee

Appellant’s Reply Brief

JOHNNY R. PARTAIN 7020 N 16th Street McAllen, Texas 78504 956-240-1821

1 No. 15-25-00005-CV

In The Fifteenth Court Of Appeals

TO THE HONORABLE JUSTICES OF THIS COURT:

COMES NOW JOHNNY PARTAIN, Appellant in the above

styled and numbered cause and files his Appellant’s Reply Brief,

and respectfully shows unto the Court the following.

ii TABLE OF CONTENTS

Page INTRODUCTION ……………. ii TABLE OF CONTENTS ……………. iii INDEX OF AUTHORITIES ……………. iv REPLY (ARGUMENT) ……………. 1 Texas Business and Commerce Code section ……………. 2 9.5185 is Irrelevant

Texas’ Complaint is Mootness (Moot) ……………. 3

Declaratory Relief is Inappropriate ……………. 5

Texas Avoids Addressing Constitutional Law ……………. 7 Restraints

Civil Liberties Do Not Require A Court Order ……………. 8

The Clerk’s Record Should Be Stricken ……………. 9

Texas’ Arguments are Non-Responsive and ……………. 11 Misunderstand the Constitution

Solution ……………. 14

CERTIFICATE OF COMPLIANCE ……………. 14 CERTIFICATE OF SERVICE ……………. 15

iii INDEX OF AUTHORITIES

CASELAW Page Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. ……………… 6 2002)

City of Galveston v. Giles, 902 S.W.2d 167 (We look ……………… 6 to the procedure used to resolve the issue at trial to determine the standard of review on appeal)

DeVillier v. Texas, 601 U.S. 285 (2024) ……………… 13

In MBM Financial Corp. v. Woodlands Operating Co., ……………… 5 L.P., 292 S.W.3d 660 (Tex. 2009) (when traditional cause of action offers a complete remedy, declaratory relief is inappropriate) Reno v. Flores, 507 U.S. 292, 301-02 (1993) (Fifth and ……………… 3 Fourteenth Amendments' guarantee of "due process of law" which forbids the government to infringe certain "fundamental" liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest)

State v. Loe, 692 S.W.3d 215, 250-53 (Tex. 2024) ……………… 3, 12 (Busby, J., concurring) (citing TEX. CONST. ART. I SEC. 29) (describing when section 29 takes effect and prohibits certain legislation)

TEXAS CIVIL PRACTICE & REMEDY CODE TEX. CIV. PRAC. & REM. CODE §37.004 ……………… 6 TEX. CIV. PRAC. & REM. CODE §37.007 ……………… 6

TEXAS BUSINESS AND COMMERCE CODE Texas Business and Commerce Code section 9.5185 ……………… 2, 5, 6, 12

iv TEXAS CONSTITUTION Tx. Const. Art. 1, Sec. 17 ……………… 2, 6, 12

Tx. Const. Art. 1, Sec. 29 ……………… 2, 3, 4, 5, 6, 12

UNITED STATES CONSTITUTION Supremacy Clause, Art. VI, Cl. 2, of the US ……………… 1 Constitution US Const. Amd. 5 ……………… 6, 12

US Const. Amd. 14 ……………… 8

U.S. Const. amend. XIV, § 1 ……………… 2

v REPLY

The State of Texas sued Johnny Partain to subvert and

undermine his civil liberties protected by the US and Texas

Constitutions and by the Supremacy Clause of the US Constitution,

which includes federal court opinions, by complaining that Partain

violated a lowly UCC lien statute after he collected approximately $340

million from the state. Partain advised the Governor and the Attorney

General that he would collect compensation required under the US and

Texas constitutions, and he gave the State of Texas every opportunity to

conform to the law. It didn’t. So it should have been no surprise and

required no discovery by the Attorney General that Partain enforced his

civil liberties on the recalcitrant state. In fact, it was Partain who

informed the State of Texas that he had executed against its property

which prompted the states discovery that Partain was fulfilling his

rights under the constitution[s]. Its almost pathetic that Texas’ only

adequate remedy against Partain could be litigating an irrelevant lien

statute for an equitable remedy after the debt had been collected - while

avoiding what was the debt (apparently an undefined and meaningless

word used by the state when it fails to compensate for property used,

1 taken, or destroyed) or a jury. On the other hand, there’s not much

Partain could have done that would have been illegal to enforce a civil

liberty short of violating someone else’s civil liberties. The State of

Texas itself doesn’t have civil liberties.

Texas Business and Commerce Code section 9.5185 is Irrelevant

The UCC lien statute is irrelevant because constitutional law,

especially civil liberties, are superior to all statutes, including civil and

criminal. However, the State of Texas avoided all constitutional

arguments with the help of the district judge who failed to lawfully

respond to Partain’s plea to the jurisdiction pursuant to his claims of

constitutional duties and protections under Tx. Const. Art. 1, Sec. 17

and 29. The judge also disallowed a jury. Government misbehavior

violating due process is a fundamental error not requiring preservation

of error for the appeals court as argued by the State, even assuming a

party had substantive and procedural due process which Partain did

not have. The Due Process Clause provides that no State shall "deprive

any person of life, liberty, or property, without due process of law." U.S.

Const. Amd. XIV,§ 1. In addition to guaranteeing fair process, the

2 Court has held that this Clause includes a substantive component that

forbids the government from infringing upon "certain 'fundamental'

liberty interests at all, no matter what process is provided, unless the

infringement is narrowly tailored to serve a compelling state interest."

Reno v. Flores, 507 U.S. 292, 301-02 (1993). Texas has no standing to

complain that Partain collected compensation against it because Texas

had a constitutional obligation to compensate him. It is in the interest

of the public that the state conforms to the law and does not shield itself

from the constitutions on claims of immunity. Texas had plenty of

opportunity to litigate and compensate Partain prior to being forced to

compensate him, but Texas claimed immunity to the law. Ironically,

Tx. Const. Art. 1, Sec. 29 gives a citizen immunity to the policing

powers of the state when exercising a civil liberty. State v. Loe, 692

S.W.3d 215, 250-53 (Tex. 2024) (Busby, J., concurring) (citing TEX.

CONST. ART. I SEC. 29) (describing when section 29 takes effect and

prohibits certain legislation).

Texas’ Complaint is Mootness (Moot)

3 Unlawfully appropriating property with the intent to deprive the

owner of it is theft in Texas. A felony of the 1st degree in this case, a

wholly adequate remedy at law, if it were applicable. It is not. Partain

deeded approximately $340 million worth of Texas’ real estate and

appropriated paying contracts to compensate himself after being

deprived of any recourse for civil rights violations and inverse

condemnation by the State of Texas as required under the

constitution[s]. But Texas didn’t sue for or prosecute for theft, fraud, or

to recover property, because Texas cant. Texas can’t directly

criminalize the exercise of a civil liberty (Tx. Const. Art. 1 Sec. 29) and

yet Texas had a duty to compensate Partain even as it avoided its own

courts. A jury would have found Texas’ gamesmanship, its dirty hands,

repugnant and would have never justified the state’s escape through

equitable relief. Texas merely sued for a UCC lien violation on a claim

that had already been collected which does nothing to recover property

or to address its constitutional duties to Partain. A mootness, allowing

a court only to denigrate a patriot and hide the state’s malfeasance on

the basis of false equity.

4 Declaratory Relief is Inappropriate

What TBCC Sec. 9.51851 does is designate an act to be fraudulent,

or in this case provide a cause of action for injunctive relief and

declaratory opinion. Again illegal in this case under Tx. Const. Art. 1

Sec. 29, since its being used to interfere with Partain’s civil liberty for

just and adequate compensation. Besides, declaratory relief is

inappropriate when a traditional cause of action offers a complete

remedy. In MBM Financial Corp. v. Woodlands Operating Co., L.P.,

292 S.W.3d 660 (Tex. 2009). Texas claims it acquired a declaratory

judgment under its TBCC Sec. 9.5185 complaint, through the setting of

the temporary restraining order hearing: A TRO hearing does not

require a litigant to marshal all his evidence or arguments, or

apparently a jury per the district judge. A temporary injunction’s

1 Texas has historically paid its debts with real estate, so there’s some consistency in Partain’s executions. While Partain’s efforts might be unusual, he was consistently deprived of recourse and even an open court which is illegal. However, the Texas 89th Legislature is currently amending Texas Business and Commerce Code Sec. 9.5185, the same code Texas is using in this complaint, through Senate Bill 2221 and House Bill 5377 which Partain has seen the legislature do many times before when a citizen uses the law to enforce a right against political rivals. Said amendments will allow Texas to avoid future litigation in cases like ours by only requiring an affidavit by the state to avoid a lien which it will then claim is protected by immunity to suit. The amendment is probably unconstitutional if it becomes relevant to another collections action, but relevance is key. So if the State of Texas has to change the law to protect itself against Partain’s collection of the state’s debts, did Partain actually violate it in the first place? Of course not. It’s not even relevant.

5 purpose is to preserve the status quo of the litigation’s subject matter

pending a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d

198, 204 (Tex. 2002).

But how can a declaratory judgment determine legal

relationships when all of the relevant and dominant constitutional legal

issues, including jurisdiction and standing, are being avoided? It cant.

CPRC §37.004. Texas still fails to address jurisidiction and standing

pursuant to constitutional restraints in its Appellee’s Brief when it has

had all the time it needs to do so. The District Court’s declaratory

judgment doesn’t even begin to address all the issues or remedies

pertinant to this case, and as required by the Declaratory Judgment

Act. The Court and Texas purposely avoided the constitutional issues

which brought their complaint to bar in the first place. It can’t be a

proper declaratory judgment. Moreover, even declaratory orders

require a jury as a fact finder - as requested in this case. CPRC

§37.007. A clear abuse of discretion. City of Galveston v. Giles, 902

S.W.2d 167 (We look to the procedure used to resolve the issue at trial to

determine the standard of review on appeal). Further, a district judge

has no discretion under Tx. Const. Art. 1 Sec. 29, to annul or attack

6 required compensation under US Const. Amd 5 and Tx. Const. Art. 1,

Sec. 17, making the judgment void.

Texas Avoids Addressing Constitutional Law Restraints

The first evidence that Texas lost its argument in its Appellee’s

Brief is the complete avoidance of the constitutional issues raised by

Partain, while at the same time clumsily admitting some of the most

maligning constitutional basis for the existence of this case in the

Appellee’s own version of its Statement of Facts at Appellee’s Brief, p:4-

6. While Texas protests Partain’s documented (using public

documents) Statement of Facts through it own questionable version of

its Statement of Facts, one thing that the Appellee demonstrates in

spades is that this is a case based completely on constitutional law and

that the parties don’t even agree with the facts presented. At least

Texas included that Partain had constitutional claims which were

completely avoided by the Court and its final judgment. What are the

facts that a jury might have adjudge applicable? The District Court’s

traveling judge declared Partain had no right to a jury, so there was no

jury, and yet Texas protests Partain’s documented Statement of Facts

7 which certainly deserves scrutiny by a lawful fact finder. Texas wrote

and defrauded the court with its own findings of facts, omitting and

excluding relevant controlling laws and facts, washed through the

signature of a traveling judge with no time to empanel a jury

somewhere in an undisclosed court. Even the district judge knew it was

wrong which is why he denied Texas’ request for its $5000 fine required

under the statute.

Civil Liberties Do Not Require A Court Order

Partain was entitled to compensation pursuant to the US and

Texas constitutions, although Texas removed itself from the process by

claiming immunity to litigation or complaints in Partain’s inverse

condemnation complaint against it. Texas used it greatest power,

sitting on its hands and doing nothing, attempting to force Partain to do

nothing. However, the constitutions do not require judicial review or

orders to compensate an individual. Otherwise the constitutions would

have stated a judicial remedy was required. It doesn’t. Congress has

the authority to write a process to compensate victims of the state

through the US 14th Amendment or to streamline Texas’ own

8 conformance, but it never has. That doesn’t mean the right to

compensation is annulled. Partain collected his compensation anyways,

despite the state’s boot on his throat, and then Texas complained that

its property had been taken and its lessees harassed – they are actually

Partain’s lessees since he owns the property.

The Clerk’s Record Should Be Stricken

Texas’ first argument in it’s Appellee’s Brief is a technicality

created by the court’s officer. Not Partain. Texas argues that Partain

failed to cite the Reporter’s Record. There was no Reporter’s Record

available according to the Court’s Reporter Kasi Chapman. See also

Fifteenth Court Of Appeals Information Sheet By Court Reporter filed by

Kasi Chapman in this case on February 12, 2025, stating that [sic] “No

record was made in the 126th Court. An order was signed by a visiting

judge.” Partain did request a Reporter’s Record. C.R. 261-263. The

Court Reporter represented that a record did not exist, removing the

Appellant Court’s duty under TRAP 35.3 (c) to ensure that the record

was timely filed. The Court Reporter’s representation deprived Partain

of a Reporter’s Record and deprived this Appeals Court of its authority

9 to enforce its production. It was not until after Partain filed his

Appellant’s Brief that the Appellee discovered that the record was

really lost in another court because of the way Travis County courts

assign judges. This discovery of a lost record after the appellate rules

have run prejudices Partain’s appeal: The Clerk’s Record should be

stricken because of the first court officer’s misrepresentations to this

Court that it didn’t exist, then later that the hearing was purported to

be held in a different court that Partain did not appear at and is not

documented anywhere, and finally because fraud vitiates everything it

touches. Appellee explained in its Motion For Extension Of Time To

File Appellee Brief filed in this appeals court that although the trial

court was listed as the 126th District Court, that due to Travis County’s

central docket, the case was not heard in the 126th but in the 353rd.

This doesn’t pass the smell test because Notice of Hearing (C.R. 21-22)

specifically named the 126th District Court and Partain went to the

126th District Court on the 7th floor where a minor temporary injunction

hearing was held on December 17, 2024. Partain has never stepped foot

in the 353rd District Court. Partain can find no reference to a 353rd

District Court anywhere in the Clerk’s Record or in any documentation

10 he’s received in the district case, but there are consistent references to

the 126th Court. Then the Appellee introduces the traveling district

judge in its brief as Presiding Judge in the 353 District Court to nail

down the discrepancy, although Honorable Sherine Thomas has been

the actual Presiding Judge of the 353rd District Court since January,

2025, succeeding the Honorable Madeleine Connor in 2024. Thats not

gamesmanship, that’s just disrespectful and dishonest. This Court

should strike the record for being lost and unavailable, depriving the

Appellant and this Appeals Court of its existence when we actually

needed it to conform to the rules, prejudicing Partain’s appeal.

Texas’ Arguments are Non-Responsive and Misunderstand the

Constitution

Texas’ second argument is broad and mostly conclusory with

almost no response to the Appellant’s Brief. Texas claims that Partain

needs a court order to enjoy or exercise a civil liberty, and that Texas’

UCC lien complaint gives the state all the authority it needs - despite

constitutional restraints to the contrary which Texas does not address.

Texas only cites the minor UCC lien statute for its authority. Partain

11 has already addressed Texas’ argument in his Appellant’s Brief and

won’t burden the Court by pounding on the sames points, but Texas

should really read its own citations before blindly relying on them

because their citations actually support Partain’s arguments.

Texas cites a new Supreme Court opinion regarding State v. Loe,

692 S.W.3d 215, 250-53 (Tex. 2024) (Busby, J., concurring) (citing TEX.

CONST. ART. I SEC. 29) (describing when section 29 takes effect and

prohibits certain legislation) which states that “An individual

constitutional right checks a broad grant of state power to legislate, not

the other way around.” “If there is no deprivation of a constitutionally

protected interest, then a statute satisfies the Due Course of Law

Clause as long as it is rationally related to a legitimate state purpose.”

The instant complaint that Texas brought against Partain for an

alleged fraudulent lien on a debt, that the state created, definitely

deprives Partain a constitutionally protected interest to being

compensated. At the same time, Texas’ complaint under TBCC Sec.

9.5185 serves no legitimate state purpose since evading constitutional

12 mandates under US Const. Amd. 5 and Tx. Const. Art. 1 Sec. 17, is not

a public interest.

Finally, Partain addresses Texas’ most egregious

misunderstanding of the constitutions when it states that, “Even if the

State did take Partain’s property, that does not give Partain a

constitutional right to commit fraud.” The constitution, especially

Article 1, is not a limit on Partain, it is a limit on the State of Texas.

Certainly the state can legislate and criminalize through statutes, or

even constitutional amendments, whatever the citizens and its

representatives can handle, but the state cannot criminalize the

exercise of a citizens civil liberties under Art. 1. When Texas is given

an affirmative duty under the constitutions to provide just and

adequate compensation, the state has no authority to immunize itself

from liability or to convert the compensation to a meaningless empty

debt. Texas Solicitor General Aaron Nielson instructed the US

Supreme Court in Devillier that the state owes a debt when it doesn’t

immediately provide compensation. DeVillier v. Texas, 601 U.S. 285

(2024), Appelant’s App. 5, R.R.p47:2-p48:24. Funny thing is that this

13 “debt” isn’t even in the constitution, its a construct of the State of

Texas. But of course compensation was intended to be made because

Texas agreed to the terms of the constitutions, agreed to provide

compensation, and provided the tools through the constitutions to

include all acts necessary to reach compensation being adequate and

just, including a security agreement if necessary, regardless of the

impediments the state may throw at it citizens. So what’s the problem

with Partain collecting his compensation?

Solution

This Appeal’s Court could wrestle with interpretations of the

constitutions which will certainly set a powerful precedent for other

victims of the State of Texas, or this Court could strike the Reporter’s

Record for being lost pursuant to TRAP 34.6 (f), find the state has no

standing to complain and that the district court has no authority to

effect Partain’s compensation, and then dismiss the case with prejudice.

The issue is done and the constitution is honored.

14 Respectfully Submitted,

______________________________ JOHNNY R. PARTAIN 7020 N 16th Street McAllen, Texas 78504 956-240-1821

CERTIFICATE OF COMPLIANCE

I, Johnny Partain, do hereby certify this Appellant’s Brief that pursuant to TRAP 9.4 (i) (3), the number of words in this document as provided by the LibreOffice Writer is 3350 words.

CERTIFICATE OF SERVICE I hereby certify that I have caused to be delivered a true and correct copy of the Appellant’s Brief and Appendix on this May 28, 2025, pursuant to the Texas Rules of Appellant Procedure to:

ZACHARY L. RHINES Assistant Attorney General General Litigation Division, Zachary.Rhines@oag.texas.gov and to ALI THORBURN Assistant Attorney General General Litigation Division, Ali.Thorburn@oag.texas.gov.

15 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Envelope ID: 101355251 Filing Code Description: Response Filing Description: Appellants Reply Brief Status as of 5/29/2025 7:09 AM CST

Associated Case Party: Johnny Partain

Name BarNumber Email TimestampSubmitted Status

Johnny Partain partain@atlastechnologies.biz 5/28/2025 5:18:57 PM SENT

Associated Case Party: State of Texas

Ali Thorburn Ali.Thorburn@oag.texas.gov 5/28/2025 5:18:57 PM SENT