Raghunath Dass, P.E. v. Texas Board of Professional Engineers

Opinion

ACCEPTED 03-14-00552-CV 5436756 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/27/2015 2:53:47 PM JEFFREY D. KYLE CLERK NO. 03-14-00552-CV

IN THE COURT OF APPEALS FILED IN FOR THE THIRD JUDICIAL DISTRICT AT AUSTIN, 3rd COURT TEXAS OF APPEALS AUSTIN, TEXAS ___________________________________5/27/2015 2:53:47 PM JEFFREY D. KYLE RAGHUNATH DASS, P.E., Clerk Appellant,

v.

TEXAS BOARD OF PROFESSIONAL ENGINEERS, Appellee. ___________________________________

On Appeal from the 201st Judicial District Court, Travis County, Texas ___________________________________

MOTION TO STRIKE APPELLANT’S EXHIBIT 7 _____________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

Now comes Appellee, Texas Board of Professional Engineers (“Board”), and

files this Motion to Strike Appellant’s Exhibit 7 and would show as follows:

I. INTRODUCTION

When appellant Raghunath Dass, P.E., (“Mr. Dass”) filed his appellant’s brief

with the Court he attached several documents as his appendix. One of the documents,

Exhibit 7, is not part of the administrative record in the instant matter; and the Board,

therefore, asks the Court to strike this document. II. ARGUMENT AND AUTHORITY

A. The Administrative Record in this proceeding does not contain Exhibit 7.

As explained in the Board’s Brief, the administrative record for the suit for

judicial review underlying the instant case contains only the following four

documents: (1) Board’s Amended Final Order; (2) Respondent’s Motion for

Rehearing; (3) Staff Memorandum to Board Members on Motion for Rehearing; and

(4) Notice to Respondent Overruling Motion for Rehearing. These documents were

provided to the Court by the district clerk. Appellee’s Br. 14-15.

In the district court case, Mr. Dass filed a motion seeking to have the Board

file with the district court the transcript from the contested case hearing underlying

the first suit for judicial review. See Mot. for Def. to File SOAH Tr. with Dist. Clerk,

dated Apr. 21, 2014, C.R. at 59-61. The Board opposed this motion. C.R. at 99-202.

The transcript was not part of the administrative record, and the district court properly

granted the Board’s motion to strike these documents.

The district court denied both Mr. Dass’s motion to supplement the record with

the SOAH transcript and PFD and his supplemental motion seeking the same

supplementation. C.R. at 316, 318. The court also granted the Board’s Amended

Motion to Strike. C.R. at 317.

Page 2 of 5 Mr. Dass then filed a bill of exception, seeking to have this Court determine

whether the administrative record in the first suit could be considered by the Court.

Supp. C.R. II at 12-13.

B. A court may not consider documents not part of the clerk’s record.

A court may not consider documents that are not part of the clerk’s record. See,

e.g., Barker CATV Const. v. Ampro, Inc., 989 S.W.2d 789, 795-96 (Tex. App.—

Houston [1st Dist.] 1999, no pet.) (concluding that the court may not consider

documents that are not part of the clerk’s record); Tex. R. App. P. 34.

C. The Court would first have to rule on the district court’s excluding the transcript, but this issue has been waived.

As noted in the Board’s brief, Mr. Dass failed to brief his issue regarding the

exclusion of evidence. Appellee’s Br. 43. Thus, Mr. Dass waived the issue of whether

the trial court erred in excluding the transcript, and the transcript is not properly

before the Court.

III. PRAYER

The Board respectfully requests that its Motion to Strike Exhibit 7 be granted.

Respectfully submitted,

KEN PAXTON Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

Page 3 of 5 JAMES E. DAVIS Deputy Attorney General for Civil Litigation

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

/s/Jennifer L. Hopgood Jennifer L. Hopgood Assistant Attorney General State Bar No. 24073010 OFFICE OF THE ATTORNEY GENERAL OF TEXAS Administrative Law Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 936-1660 Facsimile: (512) 320-0167 jennifer.hopgood@texasattorneygeneral.gov ATTORNEY FOR APPELLEE, TEXAS BOARD OF PROFESSIONAL ENGINEERS

Page 4 of 5 CERTIFICATE OF CONFERENCE

I certify that I have conferred with Jimmy Alan Hall by telephone on this day, May 27, 2015, and he is opposed to withdrawing the exhibit that is the subject of this motion to strike.

/s/Jennifer L. Hopgood JENNIFER L. HOPGOOD Assistant Attorney General

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and forgoing document has been served by e-service on this date, the 27th day of May 2015, on the following:

Jimmy Alan Hall JIMMY ALAN HALL, P.L.L.C. 4600 Mueller Boulevard, Suite 2121 Austin, TX 78723-3372 Facsimile: (512) 857-9195 jahall@fbjah.com

J. Woodfin Jones ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP 515 Congress Avenue, Suite 2350 Austin, Texas 78701-3562 Facsimile: (512) 482-9303 wjones@adjtlaw.com

Counsel for Appellee

/s/Jennifer L. Hopgood JENNIFER L. HOPGOOD Assistant Attorney General

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