Roger Fay v. Texas A&M University, Geochemical and Environmental Research Group The College of Geosciences and Maritime Studies Dr. Ray Bowen Dr. Robert Duce Dr. Norman Guinasso Dr. Roger Sassen And Dr. David Schink

Opinion

ACCEPTED

03-15-00521-CV

8424233

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/31/2015 1:29:05 PM

JEFFREY D. KYLE

CLERK

No. 03-15-00521-CV

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FILED IN

In the Court of Appeals 3rd COURT OF APPEALS AUSTIN, TEXAS

for the Third Judicial District 12/31/2015 1:29:05 PM JEFFREY D. KYLE

Austin, Texas Clerk

______________________________

Roger Fay, Appellant-Plaintiff,

v.

Texas A&M University; Geochemical and Environmental Research Group; The College of Geosciences and Maritime Studies; Dr. Ray Bowen; Dr. Robert Duce; Dr. Norman Guinasso; Dr. Roger Sassen; and Dr. David Schink, Appellees-Defendants.

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On Appeal from the 200TH Judicial District Court of Travis County, Texas Honorable Amy Clark Meacham, Presiding

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APPELLEES’ RESPONSE TO

APPELLANT’S MOTION TO REINSTATE APPEAL

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KEN PAXTON LAURA A. BARBOUR Attorney General of Texas Texas Bar No. 24069336 CHARLES E. ROY Assistant 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 Phone (512) 463-0447 Litigation Fax (512) 320-0667 ANGELA V. COLMENERO Chief, General Litigation Division ATTORNEYS FOR APPELLEES

Even if this Court accepts as true all of the conclusory statements in

Appellant Roger Fay’s Motion to Reinstate Appeal (“Motion”), Appellant Fay

still fails to provide this Court with an adequate basis to reverse the Court’s

dismissal of his appeal because once Appellant paid the appropriate fee to

have the clerk’s record transmitted to the Court of Appeals, his brief was due

within 30 days, as specified by Texas Rule of Appellate Procedure 38.6.

Fay’s counsel, Brian Cantrell, contends that he “never received notice

of a briefing schedule or any other communication from the Court due to a

problem with Counsel’s electronic mail system.” (Motion ¶ 2.) Mr. Cantrell

was, however, apparently receiving correspondence from the trial court, as

evidenced by the payment of costs for the clerk’s record on September 22,

2105. (Exhibit A.) Also on September 22, 2015, the clerk’s record was

transmitted to this Court as a result of the payment, as evidenced by the

attached confirmation filed in the District Court of Travis County. (Exhibit

B.)

Texas Rule of Appellate Procedure 38.6 states that “an appellant must

file a brief within 30 days . . . after the later of: (1) the date the clerk’s record

was filed . . . .” Accordingly, as of September 22, 2015, Mr. Cantrell was

aware that the clerk’s record had been filed because: (1) someone paid

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$539.00 to have the clerk’s record transferred on behalf of Appellant Fay, and

(2) there is no evidence to suggest Mr. Cantrell did not receive the notice of

transmission filed in the district court. Consequently, under Rule 38.6,

Appellant Fay had until October 22, 2015 to either file his brief or move for

an extension of that deadline.

Even absent any other correspondence from this Court, as the party

pursuing the appeal, Appellant knew—at the very least—that he had to file an

appeal in accordance with the schedule set forth in the Texas Rules of

Appellate Procedure. Moreover, absent any other correspondence from this

Court, Mr. Cantrell’s purported electronic mail issues did not prevent him

from calling the Court or checking the “Case Information” available publicly

online: http://www.search.txcourts.gov/Case.aspx?cn=03-15-00521-

CV&coa=coa03.

The party whose action starts the clock should not later be permitted to

claim ignorance of the standard deadlines that result from that party’s action.

Accordingly, Defendants Texas A&M University, Geochemical and

Environmental Research Group, The College of Geosciences and Maritime

Studies, Dr. Ray Bowen, Dr. Robert Duce, Dr. Norman Guinasso, Dr. Roger

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Sassen, and Dr. David Schink respectfully request that the Court deny

Appellant’s Motion to Reinstate Appeal.

PRAYER

For the foregoing reasons, this Court should deny Appellant’s Motion

to Reinstate Appeal.

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Respectfully submitted.

KEN PAXTON Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

JAMES E. DAVIS Deputy Attorney General for Civil Litigation

ANGELA V. COLMENERO Chief, General Litigation Division

/s/ Laura A. Barbour LAURA A. BARBOUR Texas Bar No. 24069336 Assistant Attorney General General Litigation Division P. O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-0447 (512) 320-0667 fax laura.barbour@texasattorneygeneral.gov

Attorneys for Appellees-Defendants Texas A&M University, Geochemical and Environmental Research Group, The College of Geosciences and Maritime Studies, Dr. Ray Bowen, Dr. Robert Duce, Dr. Norman Guinasso, Dr. Roger Sassen and Dr. David Schink

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CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing document has been

served electronically through the electronic filing manager in accordance with

Tex. R. App. P. 9.5(b)(1) and via facsimile transmission on the 31st day of

December 2015, to:

C. Bryan Cantrell CANTRELL, RAY & BARCUS, L.L.P. P. O. Box 1019 Huntsville, Texas 77342 Fax: (936) 730-8535

Counsel for Appellant-Plaintiff Roger Fay

/s/ Laura A. Barbour LAURA A. BARBOUR Assistant Attorney General

Exhibit A

Exhibit B