ACCEPTED 04-14-00551-cv FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 2/19/2015 10:20:05 PM KEITH HOTTLE CLERK
NO. 04-14-00551-CV FILED IN IN THE COURT OF APPEALS 4th COURT OF APPEALS FOR THE SAN ANTONIO, TEXAS 2/19/2015 10:20:05 PM FOURTH JUDICIAL DISTRICT OF TEXAS KEITH E. HOTTLE SAN ANTONIO, TEXAS Clerk
PABLO SOLIZ § APPELLANT § V. § § STATE OF TEXAS § APPELLEE
APPEAL FROM 79th JUDICIAL DISTRICT COURT BROOKS COUNTY, TEXAS TRIAL COURT NO. 14-02-16542-CV
________________________________________________________________
FIRST SUPPLEMENTED BRIEF OF APPELLANT
Rick Soliz Attorney at Law Texas Bar Number 00785013 P.O. Box 4051 Houston, Texas 77210 713-228-1900 Counsel Pro Bono
ORAL ARGUMENT REQUESTED
1 STATEMENT REGARDING ORAL ARGUMENT
The appellant requests oral argument because of the importance of the
issue presented concerning whether a Texas Constable may be removed from
office without government financial assistance for required training, without a
training facility available for required training, and without appellee meeting its
burden of proof in summary judgment evidence.
2 TABLE OF AUTHORITIES
City of Houston v. Clear Crk Basin Auth., 589 S.W.2nd 671 (Tex. 1979) 15
Mathews v. Eldridge, 424 U.S. 319, 344 (1976) 15
Marchant v. Pennsylvania R.R., 153 U.S. 380, 386 (1894). 16
Fuentes v. Shevin, 407 U.S. 67, 81 (1972) 16
American Pertrofina. Inc. v. Allen, 887 S.W.2nd 829 (Tex. 1994) 17
Brownlee v. Brownlee, 665 S.W. 2nd 111 (Tex. 1984) 17
INTERESTED PARTIES
Appellant - Constable Pablo Soliz
Appellee Texas Attorney General’s Office – Attorney Kent Richardson
Brooks County Judge Raul Ramirez (until December 31, 2014)
Presiding and Visiting Judge of the 79th Judicial District Court
3 TABLE OF CONTENTS
Statement Regarding Oral Argument 2
Table of Authorities 3
Interested Parties 3
Statement of the Case 5
Appellant’s Points of Error 6
Statement of Facts 6
Argument 12
Conclusion 18
Certificate of Compliance 19
Certificate of Service 19
4 TO THE HONORABLE JUSTICES OF SAID COURT:
Now comes, Pablo Soliz Jr., Texas Constable and Appellant in the above
entitled and numbered cause, by and through his pro bono attorney of record,
Rick Soliz, and respectfully requests that this court reverse the Order of
Removal dated August 1, 2014, of Visiting Judge David Chew, and temporarily
or permanently reinstate appellant to his properly held position as elected
Constable of his precinct in Brooks County Texas.
STATEMENT OF THE CASE
A hearing was held in the 79th Judicial District Court whereby the State of
Texas moved for partial summary judgment based on two grounds. Appellant
defended against the removal action and after arguments based on pleadings
previously filed, the court granted partial summary judgment solely on the
allegation that appellant did not receive training and licensure within 270 days of
taking the office of constable, after being duly elected. Appellant timely filed
notice of appeal and a motion for new trial, which was denied.
5 APPELLANT’S POINTS OF ERROR
I. The trial court erred by refusing to recognize the due process violations of denying appellant his right to a jury trial, requiring Appellant to receive academy training as an unfunded government mandate, and requiring Appellant to attend academy training even though the academy historically servicing Brooks County openly and illegally discriminated against Appellant by refusing to accept his application for retraining and relicensure based on his age.
II. The trial court erred by refusing to recognize the fact issues raised by Appellant regarding his defenses, of not being provided with funds for training and not being admitted to training based on age, sufficient to materially dispute movant’s summary judgment evidence.
STATEMENT OF FACTS
The Texas constable is provided for in the Texas Constitution of 1876
(Article 5, Section 18). Elected officials in Texas are thus constitutionally
protected and removal proceedings should be carefully scrutinized. Over the
decades, most removal proceedings have had some relation to town politics.
This case is no different.
Pablo Soliz Jr. is the appellant in this matter. Mr. Soliz is the oldest of
eight children and was raised in Falfurrias, Texas (the Brooks County Seat). He
graduated from a nearby university in 1984 with a degree in political science.
6 Mr. Soliz is an honorably discharged veteran with 5 children. He has held
certified law enforcement positions in several decades for multiple agencies in
two counties and is probably the most experienced peace officer in Brooks
County. He certainly is the most educated. There does not seem to be any other
local peace officer in the last six decades that has served Brooks County while
maintaining a college degree. In this county, there have always been several
peace officers at any particular time, elected and otherwise, over the last six
decades, that would be considered illiterate by any standardized gauge or exam.
It makes many wonder how they obtained and maintain their peace officer
licenses (with the required testing and training) and why Mr. Soliz, the most
educated, the most qualified, and the most experienced elected official in Brooks
County, was singled out by the now outgoing county judge (lost recent election)
for proof or licensure and training. And with so many new and more difficult
qualification standards in Texas, one must wonder how all these other officials
meet and maintain requirements. The answer is they do not, but who wants a
community with no law enforcement available?
Brooks County was on the front page of the Corpus Christi Caller Times
newspaper this summer. The piece indicated Brooks County as one of the
poorest counties in the state. CR 56 The newspaper reported that peace officers
7 are leaving to nearby counties to work for higher pay and benefits. Brooks
County recently administered pay cuts, layoffs and removal of benefits. Officers
are in short supply yet the most qualified officer must now defend himself
against a removal action. What Brooks County voters and taxpayers were asked
about this or wanted this? Appellant’s constable precinct is the largest and
encompasses the far reaches of Southern Brooks County where dozens of
immigrants have perished lately in the heat and sand and tons of drugs are
transported yearly. This Constable is needed to help in that regard and regularly
patrols those rural roads. He is familiar with the area and patrolled with his
deputy (when he had one) prior to huge county budget cuts because of the
incompetency of some including the outgoing county judge. Appellant’s salary
as constable is less than $800.00 per month and is his sole source of income
other than minor benefits. He still has a middle school aged student at home.
The State of Texas recently took his business and method of making a living
without compensation. The welding shop (he is a welder by trade) was illegally
taken without a single cent of compensation for the construction of Interstate 69
and now the state seeks to take away his last job as constable and his final
source of income. CR 56
These removal proceedings were initiated with a complaint by a county
8 judge that is a political adversary of this constable. This same judge, who lost
the March primary election and was not selected for the runoff either, is
responsible for the recent demise of Brooks County. He is also being
investigated for receiving a personal, yearly $15,000.00 state supplement for
submitting affidavits about the number of hours (or lack thereof) he spends in
the courtroom. Appellant would ask that this judge’s affidavit in the previous
proceedings be scrutinized thoroughly and discounted accordingly.
This court is here reminded that the Appellant has also suffered health
issues, documented in the record below, with hospitalization and therapy for
months. Such occurred after the petition for removal was filed.
Reading the state’s petition, one would think I was representing some
lawless gangster. The truth of the matter is that Brooks County and surrounding
Counties have some of the most corrupt law enforcement anywhere. Recent
federal prosecutions attest to that. But there is also crooked state and federal law
enforcement as well in the area. And it is no secret appellant cannot be bought
or compromised, so efforts to rid the area of him have become common place. It
is no coincidence this case was heard by a visiting judge either. The only
professional in every way associated with the investigation or prosecution of this
9 case is actually Kent Richardson, the assistant attorney general, who of course is
not from the Brooks County area.
This is an effort by uneducated, incompetent, ill-trained, or self-
aggrandizing folks to keep only like individuals in control of the Brooks County
area. The most educated, experienced, truthful and professional person in
Brooks County law enforcement is being singled out here by the local
establishment.
Words can be cheap so appellant will provide examples. Just since the
removal of appellant by the lower court recently, this officer of the court has
learned appellant’s constable truck has been stolen by an individual in law
enforcement and disguised as a work truck. Another constable shakes down the
dozen game rooms in the city of Falfurrias on a regular basis and pockets the
money. The county judge refuses to try to remove a deputy constable who does
not have proper training or licensure and who was not prosecuted, because of the
interference of a Texas Ranger, for sexual assault of a minor. And there is more,
but is there any use of continuing? Does anyone who can act really care – other
than appellant?
Along the same lines, information in the record and proceedings below
contains information about a felony conviction / non conviction. While it is true
10 that across the country police are seemingly protected and not prosecuted after
they murder unarmed citizens, such is not the case in Brooks County. Appellant
evidently did not have the right of lawful self-defense from a knife wielding,
drugged up hoodlum. Appellant was persecuted instead because of his
investigation of a murder, of a child molester in his precinct, which others
wanted covered up. And what a coincidence that the sheriff who investigated
appellant was run out of town after losing the next election, one prosecutor was
convicted of a felony and sent to jail, the other prosecutor is the current district
judge, and the previous district judge was prosecuted, convicted and removed
from the bench for life. This is typical of what happens to those that illegally
affect appellant since their true colors are eventually exposed. But by then the
damage has occurred to appellant. Such is a regular occurrence and appellant
has a hand in cleaning up the place time and time again. Another example is
appellant’s help purging a crooked DPS Trooper from the area through the
trooper’s recent firing (but of course no prosecution). And of course not so
much as a thank you since it was a bother to DPS to purge one of their own.
And today, with appellant as a concerned citizen in the area even without
his official capacity, everyone can be sure law violating law enforcement in the
Brooks County area will be hearing from him again soon.
11 ARGUMENT AND AUTHORITIES
POINT OF ERROR ONE
The trial court erred by refusing to recognize the due process violations of
denying appellant his right to a jury trial, RR 34 CR 2, 27, 38, 66, 87, requiring
Appellant to receive academy training as an unfunded government mandate, RR
20-23, and requiring Appellant to attend academy training even though the
academy historically servicing Brooks County openly and illegally
discriminated against Appellant by refusing to accept his application for
retraining and relicensure based on his age. RR 21-22
Appellant was not requested by the Brooks County commissioner’s court,
as the court order implies, to produce evidence of training or licensure. CR 3
Appellant was requested to do such by the county judge Raul Ramirez. RR20,
CR 1 Appellant has been a Constable or a licensed peace officer with other
titles, on and off, for decades, both as a hired and as an elected official. RR 20
The laws and regulations regarding training and therefor licensure have changed
in the recent past. Since current TCOLE (Texas licensing agency) rules are
wholly inadequate regarding grandfathering provisions for previously licensed
and certified officers, appellant sought his own training and did receive days of
12 training in Huntsville recently for several days at the Criminal Justice College.
RR20, 23
Current TCOLE requirements regarding grandfathering provisions work
for only those who are at an abnormally old age for law enforcement. Probably
to ensure there are no applicants being grandfathered. RR 20
To summarize, although Brooks County regularly provided assistance to
Brooks County law enforcement to attend their training academy in Corpus
Christi, county judge Raul Ramirez specifically denied funds to appellant to
attend the training academy. RR 22 The past procedure for law enforcement
was simply to ask the judge and the funding was forthcoming. RR 21
Notwithstanding this denial of funds, appellant made additional efforts to enroll
in the training academy and personally met with the head of the training
academy that is part of a Corpus Christi college. This person refused to allow
Constable Soliz to submit an application or enroll. RR 21 The reason given was
that appellant was too old and could not pass the physical part of the training
program. RR 21 Appellant objected and complained in person to the college
president who assured Appellant something would be done. Nothing was done.
During the conversation with the head of the training academy, it seemed to
appellant that the Brooks County judge had spoken to the head in advance.
13 Additionally, the academy head mentioned that the academy illegally could not
accommodate Appellant’s minor medical need (currently a disabled military
veteran) of getting up at least once per hour to walk a few steps to prevent back
problems form sitting too long.
Appellant made multiple well documented efforts to get funding and enter
the training facility encompassing Brooks County. Mr. Soliz was illegally
denied admission because of age and disability discrimination under federal and
state law. Mr. Soliz met face to face with the head of the facility and was
basically ridiculed and denied even the application process. RR 21 Other
efforts proved fruitless as well for various reasons, mostly lack of funding,
including at other facilities that Constable Soliz should not have even had to
inquire about because the Brooks County area has its own facility in Corpus
Christi. RR 22 The laws do not seem to contemplate this situation but justice
dictates that common sense be applied by all.
Constable Soliz cannot be held accountable under new TCOLE rules if he
has no control over the persons deciding who enters, by providing funding for
only whom they choose and select entry for training and licensure to only those
they choose. Where is an independent, elected, and constitutionally protected
constable supposed to turn?
14 Specifically, due process requires a jury trial when requested. Appellant
requested a jury trial. CR 66 Defendant has been denied his constitutional right
to a jury trial. Defendant has been denied due process of law. RR 34 A motion
for summary judgment should not deprive litigants of their right to a trial by jury
or to try a case by affidavit. City of Houston v. Clear Creek Basin Auth., 589
S.W.2nd 671 (Tex. 1979). Appellant states that with so many facts and issues in
this matter, it is not possible to get a fair decision without a trial, something the
government wants to ensure never happens. Why would they want appellant to
be judged by a jury of his peers instead of a solitary judge who works for the
government? Due process rules are shaped by the risk of error inherent in the
truth-finding process as applied to the generality of cases. Mathews v.
Eldridge, 424 U.S. 319, 344 (1976).
Due process requires this mandatory process to be fair and evenly applied,
and not only for the affluent or for those who county officials choose to
arbitrarily fund. There is what has become an unfunded government mandate in
this case. RR 20 There are no sufficient safeguards to ensure the less affluent,
indigent, as appellant is, or for those otherwise financially incapable of
complying. The mandate should consider expenses of transportation, food,
15 lodging and/or tuition to enroll and attend the required training. In the case at
hand, appellant was denied any financial procurement to comply. RR 22
Due process requires that the procedures by which laws are applied must
be evenhanded, so that individuals are not subjected to the arbitrary exercise of
government power. Marchant v. Pennsylvania R.R., 153 U.S. 380, 386
(1894).
Due process also requires that there be a process that is not impossible to
navigate. Here, appellant had no control over an illegal training school
admissions policy that discriminated against him because of a disability, or
because a policy (complained about in a letter, CR 34,37, from appellant to the
Attorney General’s office that appellee has submitted as evidence in this case)
that illegally discriminated against him based on age. RR 21, CR 68-70, 79-80
Thus, the required elements of due process are those that "minimize
substantively unfair or mistaken deprivations" by enabling persons to contest the
basis upon which a State proposes to deprive them of protected interests.
Fuentes v. Shevin, 407 U.S. 67, 81 (1972).
16 POINT OF ERROR TWO
The trial court erred by refusing to recognize the fact issues raised by
Appellant regarding his defenses, of not being provided with funds for training
and not being admitted to training based on age, sufficient to materially dispute
movant’s summary judgment evidence. RR 22
Defendant, as the nonmovant, chooses his own defense and is not required
to prove his defense of not being allowed to enroll in the academy and not being
provided with money to obtain training and licensure, in response to a motion
for summary judgment, by a preponderance of the evidence or as a matter of
law. But the mere raising of a fact issue is enough to defeat the summary
judgment, American Pertrofina. Inc. v. Allen, 887 S.W.2nd 829 (Tex. 1994);
Brownlee v. Brownlee, 665 S.W. 2nd 111 (Tex. 1984). In the case at hand,
appellant and appellee (in their evidence submitted of appellant’s complaint
letter to the attorney general’s office prior to the 270 days) both did in fact raise
a fact issue regarding appellant’s defense sufficient to materially dispute
movant’s summary judgment evidence. CR 34-37
Appellant points to the mentioned evidence regarding appellant’s defense
that the training academy director refused to allow him to apply for admission
based on age and refused to accommodate a disability. RR 21 And that the
17 Brooks County Judge (appellee’s affiant in the motion for partial summary
judgment) refused to provide funding for appellant to attend mandatory training
that is the subject of this court’s judgment. RR 22 Such funding was
commonplace for Brooks County officials attending mandatory training. And
the movant representing the Texas attorney general’s office presented evidence
as well that defendant wrote to the attorney general complaining of this, prior to
the 270 day deadline to receive training for licensure (and this may be the best
evidence to review). Of note is the fact that appellant had already been through
this same academy years earlier and had obtained his license after such
enrollment and completion of academy training.
CONCLUSION AND PRAYER
Wherefore, the appellant prays that this court reverse the Order of
Removal dated August 1, 2014 in the 79th Judicial District Court and allow the
people to decide the fact issues in this matter.
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the attached and foregoing
document will be electronically served on opposing counsel and the Attorney
18 General’s Office.
CERTIFICATE OF COMPLIANCE
The undersigned does hereby certify the word count in the body of this
brief to be well under the maximum limit and is about 3,200 characters.
Respectfully submitted,
/S/ Rick Soliz Rick Soliz T.B.N. 00785013 P.O. Box 4051 Houston, Texas 77210 713-228-1900 Pro Bono Attorney for Appellant