Jose A. Perez v. Texas Medical Board and Mari Robinson, JD, in Her Official Capacity

Opinion

ACCEPTED 03-14-00644-CV 4217422 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/19/2015 3:41:35 PM JEFFREY D. KYLE CLERK NO. 03-14-00644-CV _____________________________________________________________ FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS THIRD DISTRICT OF TEXAS 2/19/2015 3:41:35 PM AUSTIN, TEXAS JEFFREY D. KYLE Clerk _____________________________________________________________

JOSE A. PEREZ, Appellant, v.

TEXAS MEDICAL BOARD, et al., Appellees. ____________________________________________________

On Appeal from the 53rd Judicial District Court of Travis County, Texas No. D-1-GN-14-001172 ____________________________________________________

APPELLEES’ RESPONSE TO APPELLANTS’ MOTION TO ABATE APPEAL AND AMEND APPELLATE BRIEF ____________________________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

Appellees, the Texas Medical Board and Mari Robinson, in her Official

Capacity (collectively “TMB”), by and through the Office of the Attorney General

of Texas and the undersigned Assistant Attorney General, submit the following

response to the Motion to Abate Appeal and Amend Appellate Brief filed by

Appellant, Jose Perez (“Perez”). In support, the TMB shows the Court as follows: 1. Perez wants this Court to abate the captioned appeal so he can amend

his initial brief. The basis for the request is that he did not receive the supplemental

clerk’s record before filing his initial brief.

2. There is nothing in the supplemental clerk’s record that Perez did not

have in his possession long before he filed his brief in this appeal. See Exhibit A

(Index to supplemental clerk’s record). As shown on the index, there are only four

substantive documents in the record, those being (1) Perez’s own petition; (2) the

TMB’s Plea to the Jurisdiction and Original Answer and General Denial, and

Affirmative Defenses; (3) the TMB’s First Amended Plea to the Jurisdiction; and

(4) the TMB’s brief in support of its Amended Plea to the Jurisdiction. The TMB

filings were all served on Perez on the date they were filed, the latest date being

August 13, 2014. Suppl. CR 55, 59, 69. The initial clerk’s record was filed on

November 14, 2014, and Perez had thirty days thereafter to file his initial brief.1

3. In addition, the TMB requested its filings which are contained in the

supplemental record through its counter-designation filed in the district court on

October 15, 2014. That document was also served on Perez on that date.2

1 There is no reporter’s record in this appeal.

2 For reasons unknown to the TMB, the District Clerk did not actually assemble the supplemental record and submit it to the Clerk of this Court until the TMB had discovered in early February that it had not been filed. The TMB sent a reminder to the clerk at that time. 2 4. Moreover, Perez has the right to file a reply brief on or before March

10, 2015 to address the issues raised in the TMB’s brief (filed on February 18, 2015).

5. There is simply no way Perez can claim surprise by anything in the

supplemental clerk’s record.

For the foregoing reasons, the TMB respectfully requests that Perez’s motion

be denied.

Dated: February 19, 2015.

Respectfully submitted,

KEN PAXTON Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

JAMES E. DAVIS Deputy Attorney General for Civil Litigation

DAVID A. TALBOT, JR. Division Chief, Administrative Law Division

3 /s/ Ted A. Ross Ted A. Ross Assistant Attorney General State Bar No. 24008890 OFFICE OF THE TEXAS ATTORNEY GENERAL ADMINISTRATIVE LAW DIVISION P. O. Box 12548 Austin, Texas 78711-2548 Telephone: (512) 475-4191 Facsimile: (512) 457-4674 Email: ted.ross@texasattorneygeneral.gov Attorneys for Appellees Texas Medical Board and Mari Robinson

CERTIFICATE OF SERVICE

I hereby certify that, in compliance with Rule 9.5 of the Texas Rules of Appellate Procedure, a true and correct copy of the above and foregoing document has been served on the following on this the 19th day of February 2015:

Jose A. Perez, pro se Via: Electronic Mail and 34 Candle Pine Place CMRRR #7006 2150 0005 6812 6434 The Woodlands, Texas 77381 Email: theaesculapius@gmail.com /s/ Ted A. Ross Ted A. Ross Assistant Attorney General

4 EXHIBIT A FILED DATE DOCUMENT DESCRIPTION DOCUMENT CATEGORY PAGE

ANSWER & ADDITIONAL ANSWER & ADDITIONAL PLEADING PLEADING

8lßl2al4 BRIEF