Ugalahi Offoboche v. Collin County, Texas, Collin County Sheriff's Deputies Mounger, Watson, and McMillan and Former Collin County Chief Deputy Constable Rumfield
Opinion
ACCEPTED 15-25-00044-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 6/25/2025 6:13 AM No. 15-25-00044-CV CHRISTOPHER A. PRINE CLERK In The Fifteenth Court of Appeals FILED IN 15th COURT OF APPEALS
at Austin, Texas AUSTIN, TEXAS 6/25/2025 8:06:00 AM CHRISTOPHER A. PRINE Clerk UGALAHI OFFOBOCHE, Appellant, V. COLLIN COUNTY, TEXAS, COLLIN COUNTY SHERIFF’S DEPUTIES MOUNGER, WATSON, AND MCMILLAN AND FORMER COLLIN COUNTY DEPUTY CONSTABLE RUMSFIELD Appellees.
On appeal from the 429th Judicial District Court, Collin County, Texas Cause No. 429-08578-2024, The Honorable Jill Willis, Presiding
APPELLANT’S AMENDED BRIEF
U. A. C. OFFOBOCHE LAW FIRM
/s/ Ugalahi Agbo Claire Offoboche Ugalahi Agbo Claire Offoboche State Bar No. 24068619 675 Town Square Blvd., Bldg. 1A, Ste. 200, Garland, TX 75040 Ph: 469-315-0358 Fax: 214-853-5708 ugy@uacoffobochelaw.com PRO SE APPELLANT UGALAHI OFFOBOCHE
ORAL ARGUMENT IS NOT REQUESTED IDENTITIES OF PARTIES AND COUNSEL
PARTIES COUNSEL
UGALAHI OFFOBOCHE UGALAHI OFFOBOCHE, PRO SE NONPARTY AT THE TRIAL U.A.C. OFFOBOCHE LAW FIRM COURT/APPELLANT 675 TOWN SQUARE BLVD., BLDG. 1A, SUITE 200, GARLAND, TEXAS 75040 TEL: (469) 315 0358 FAX: (214) 853 5708 ugy@uacoffobochelaw.com ATTORNEY APPELLANT AND
COLLIN COUNTY, TEXAS ROBERT J. DAVIS DEPUTIES MOUNGER, KYLE T. BARRY WATSON, MCMILLAN, AND MATTHEWS, SHIELDS, KNOTT, EDEN, DEPUTY CONSTABLE DAVIS & BEANLAND, L.L.P., RUMSFIELD 8131 LBJ FREEWAY., SUITE 700, NONPARTY AWARDEE DALLAS, TEXAS 75251 AND PLAINTIFFS AT THE TEL: (972) 234 3400 TRIAL COURT FAX: (972) 234 1750 bdavis@mssattorneys.com kbarry@mssattorneys.com ATTORNEYS FOR APPELLEES
APPELLANT’S AMENDED BRIEF Page 2 of 77 TABLE OF CONTENTS
Title Page Identities of Parties and Counsel…………………………………………………...2 Table of Contents…………………………………………………………………...3 Index of Authorities………………………………………………………………...6 Record references and abbreviations……………………………………………….9 Statement of the Case……………………………………………………………..10 Statement Regarding Oral Argument……………………………………………..12 Statement of Issues Presented...…………………………………………………..12 Statement of Relevant Facts ...……………………………………………………13 I. At the 193rd in November 2024…………………………………………13
II. At the 429th in November 2024…………………………………………14
(1) Alleged requests for information and records……………………….17
(2) Alleged reasons to quash the subpoena……………………………...19
(3) The unsubstantiated Motion for Protective Order…………………...20
(4) Alleged Rule 192.6(b) right to Nonparty-Collin County’s attorney’s fees…………………………………………………………………..23
III. The Browns’ Rule 176.8 Motion to Compel at the Issuing 193rd Court..24
IV. Contents and Appellees’ Response to Motion to Compel Compliance with Trial Subpoena filed at the 193rd trial court……………………….25
V. Supplement to Motion to Quash, Request for Issuance of Protective Order, and Award of Collin County’s Attorney’s fees…………………26
VI. The Motion for Sanctions……………………………………………….30
APPELLANT’S AMENDED BRIEF Page 3 of 77 VII. The Hearing……………………………………………………………..33
VIII. Judgment: the 429th’s findings………………………………………….34 Summary of Argument……………………………………………………………37 Law and Argument………………………………………………………………..38 Part I: PART I: THE 429TH COURT ABUSED HER DISCRETION BY MAKING FINDINGS WITH INSUFFICIENT EVIDENCE………………………………………….………38 A. Standard of Review………………………………………………………..38
B. Trial Subpoena jurisdiction of the 193rd vs. 429th Courts………………....39
(i) Trial subpoenas are treated differently from discovery subpoenas under Rule 176……………………………………………………..39
(ii) The 429th assumed jurisdiction based on a false assertion of improper service of subpoena even though there is unrebutted prima facie evidence to support a presumption of proper service on the record..43
(iii) Rules 176.6 and 176.7 authorize protective orders against the party causing the subpoena to issue and not the party’s attorney………...45
C. There is insufficient evidence to support the protective order as to privilege……………………………………………………………………49
D. The procedures under Tex. Civ. Prac. & Rem. Code §30.006 do not apply to trial subpoena………………………………………………………………57
E. There is insufficient evidence on the record to support the finding of undue burden, expense and harassment…………………………………………..60
Part II: THE ORDER FOR SANCTIONS IS UNWARRANTED……………….64 A. Standard of Review……………………………………………………......64
APPELLANT’S AMENDED BRIEF Page 4 of 77 B. No Statute or Rule permits the recovery of attorney’s fees in this case……64
C. No evidence of bad faith and significant interference with a core judicial function of the Court……………………………………………………….66 Conclusion……………………………….………………………………………..75
Prayer……………………………………………………………………………...75
Certificates
Certificate of Compliance…………………………………………………77
Certificate of Service………………………………………………………77
APPELLANT’S AMENDED BRIEF Page 5 of 77 INDEX OF AUTHORITIES Cases Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006) ................................................65 Austin Bulldog v. Leffingwell, 490 S.W.3d 240, 250 (Tex. App.—Austin 2016, no pet.). ...................... 56 Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 553 (Tex. 1990) ............................................................51 Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704, 717–18 (Tex. 2020). ......................... 67, 68, 69 Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 718-19 ........................................................ 69, 76 C.G. Giffin v. The Honorable R.L. Smith, 688 S.W.2d 112 (Tex.1985) .................................... 58, 59, 60 Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) ..........................................................................68 Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004) ..................................................................65 City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex.2000) (plurality op.) ..................... 58 City of Wilmer v. Laidlaw Waste Sys., Inc., 890 S.W.2d 459, 467 (Tex. App.—Dallas 1994), aff’d, 904 S.W.2d 656, 660-61 (Tex. 1995). ...............................................................................................53 Cosgrove v. Grimes, 774 S.W.2d 662, 664-65 (Tex. 1989) .................................................... 69, 72, 74 Dallas Central Appraisal Dist. v. Seven Investment Co., 835 S.W.2d 75, 77 (Tex.1992)....................... 66 Dike v. Peltier Chevrolet, Inc., 343 S.W.3d 179, 194 (Tex. App.—Texarkana 2011, no pet.) ...... 68, 69 75 Dike, 343 S.W.3d at 191 ...............................................................................................................72 Dr. Pepper v. Davis, 745 S.W.2d 470, 471 (Tex. App.—Austin 1988, orig. proceeding) ................ 41, 49 Elkins v. Stotts-Brown, 103 S.W.3d 664, 669 (Tex. App.—Dallas 2003, no pet.) .................................69 Fiberglas Corp. v. Malone, 972 S.W.2d 35, 52 n.7 (Tex.
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ACCEPTED 15-25-00044-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 6/25/2025 6:13 AM No. 15-25-00044-CV CHRISTOPHER A. PRINE CLERK In The Fifteenth Court of Appeals FILED IN 15th COURT OF APPEALS
at Austin, Texas AUSTIN, TEXAS 6/25/2025 8:06:00 AM CHRISTOPHER A. PRINE Clerk UGALAHI OFFOBOCHE, Appellant, V. COLLIN COUNTY, TEXAS, COLLIN COUNTY SHERIFF’S DEPUTIES MOUNGER, WATSON, AND MCMILLAN AND FORMER COLLIN COUNTY DEPUTY CONSTABLE RUMSFIELD Appellees.
On appeal from the 429th Judicial District Court, Collin County, Texas Cause No. 429-08578-2024, The Honorable Jill Willis, Presiding
APPELLANT’S AMENDED BRIEF
U. A. C. OFFOBOCHE LAW FIRM
/s/ Ugalahi Agbo Claire Offoboche Ugalahi Agbo Claire Offoboche State Bar No. 24068619 675 Town Square Blvd., Bldg. 1A, Ste. 200, Garland, TX 75040 Ph: 469-315-0358 Fax: 214-853-5708 ugy@uacoffobochelaw.com PRO SE APPELLANT UGALAHI OFFOBOCHE
ORAL ARGUMENT IS NOT REQUESTED IDENTITIES OF PARTIES AND COUNSEL
PARTIES COUNSEL
UGALAHI OFFOBOCHE UGALAHI OFFOBOCHE, PRO SE NONPARTY AT THE TRIAL U.A.C. OFFOBOCHE LAW FIRM COURT/APPELLANT 675 TOWN SQUARE BLVD., BLDG. 1A, SUITE 200, GARLAND, TEXAS 75040 TEL: (469) 315 0358 FAX: (214) 853 5708 ugy@uacoffobochelaw.com ATTORNEY APPELLANT AND
COLLIN COUNTY, TEXAS ROBERT J. DAVIS DEPUTIES MOUNGER, KYLE T. BARRY WATSON, MCMILLAN, AND MATTHEWS, SHIELDS, KNOTT, EDEN, DEPUTY CONSTABLE DAVIS & BEANLAND, L.L.P., RUMSFIELD 8131 LBJ FREEWAY., SUITE 700, NONPARTY AWARDEE DALLAS, TEXAS 75251 AND PLAINTIFFS AT THE TEL: (972) 234 3400 TRIAL COURT FAX: (972) 234 1750 bdavis@mssattorneys.com kbarry@mssattorneys.com ATTORNEYS FOR APPELLEES
APPELLANT’S AMENDED BRIEF Page 2 of 77 TABLE OF CONTENTS
Title Page Identities of Parties and Counsel…………………………………………………...2 Table of Contents…………………………………………………………………...3 Index of Authorities………………………………………………………………...6 Record references and abbreviations……………………………………………….9 Statement of the Case……………………………………………………………..10 Statement Regarding Oral Argument……………………………………………..12 Statement of Issues Presented...…………………………………………………..12 Statement of Relevant Facts ...……………………………………………………13 I. At the 193rd in November 2024…………………………………………13
II. At the 429th in November 2024…………………………………………14
(1) Alleged requests for information and records……………………….17
(2) Alleged reasons to quash the subpoena……………………………...19
(3) The unsubstantiated Motion for Protective Order…………………...20
(4) Alleged Rule 192.6(b) right to Nonparty-Collin County’s attorney’s fees…………………………………………………………………..23
III. The Browns’ Rule 176.8 Motion to Compel at the Issuing 193rd Court..24
IV. Contents and Appellees’ Response to Motion to Compel Compliance with Trial Subpoena filed at the 193rd trial court……………………….25
V. Supplement to Motion to Quash, Request for Issuance of Protective Order, and Award of Collin County’s Attorney’s fees…………………26
VI. The Motion for Sanctions……………………………………………….30
APPELLANT’S AMENDED BRIEF Page 3 of 77 VII. The Hearing……………………………………………………………..33
VIII. Judgment: the 429th’s findings………………………………………….34 Summary of Argument……………………………………………………………37 Law and Argument………………………………………………………………..38 Part I: PART I: THE 429TH COURT ABUSED HER DISCRETION BY MAKING FINDINGS WITH INSUFFICIENT EVIDENCE………………………………………….………38 A. Standard of Review………………………………………………………..38
B. Trial Subpoena jurisdiction of the 193rd vs. 429th Courts………………....39
(i) Trial subpoenas are treated differently from discovery subpoenas under Rule 176……………………………………………………..39
(ii) The 429th assumed jurisdiction based on a false assertion of improper service of subpoena even though there is unrebutted prima facie evidence to support a presumption of proper service on the record..43
(iii) Rules 176.6 and 176.7 authorize protective orders against the party causing the subpoena to issue and not the party’s attorney………...45
C. There is insufficient evidence to support the protective order as to privilege……………………………………………………………………49
D. The procedures under Tex. Civ. Prac. & Rem. Code §30.006 do not apply to trial subpoena………………………………………………………………57
E. There is insufficient evidence on the record to support the finding of undue burden, expense and harassment…………………………………………..60
Part II: THE ORDER FOR SANCTIONS IS UNWARRANTED……………….64 A. Standard of Review……………………………………………………......64
APPELLANT’S AMENDED BRIEF Page 4 of 77 B. No Statute or Rule permits the recovery of attorney’s fees in this case……64
C. No evidence of bad faith and significant interference with a core judicial function of the Court……………………………………………………….66 Conclusion……………………………….………………………………………..75
Prayer……………………………………………………………………………...75
Certificates
Certificate of Compliance…………………………………………………77
Certificate of Service………………………………………………………77
APPELLANT’S AMENDED BRIEF Page 5 of 77 INDEX OF AUTHORITIES Cases Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006) ................................................65 Austin Bulldog v. Leffingwell, 490 S.W.3d 240, 250 (Tex. App.—Austin 2016, no pet.). ...................... 56 Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 553 (Tex. 1990) ............................................................51 Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704, 717–18 (Tex. 2020). ......................... 67, 68, 69 Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 718-19 ........................................................ 69, 76 C.G. Giffin v. The Honorable R.L. Smith, 688 S.W.2d 112 (Tex.1985) .................................... 58, 59, 60 Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) ..........................................................................68 Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004) ..................................................................65 City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex.2000) (plurality op.) ..................... 58 City of Wilmer v. Laidlaw Waste Sys., Inc., 890 S.W.2d 459, 467 (Tex. App.—Dallas 1994), aff’d, 904 S.W.2d 656, 660-61 (Tex. 1995). ...............................................................................................53 Cosgrove v. Grimes, 774 S.W.2d 662, 664-65 (Tex. 1989) .................................................... 69, 72, 74 Dallas Central Appraisal Dist. v. Seven Investment Co., 835 S.W.2d 75, 77 (Tex.1992)....................... 66 Dike v. Peltier Chevrolet, Inc., 343 S.W.3d 179, 194 (Tex. App.—Texarkana 2011, no pet.) ...... 68, 69 75 Dike, 343 S.W.3d at 191 ...............................................................................................................72 Dr. Pepper v. Davis, 745 S.W.2d 470, 471 (Tex. App.—Austin 1988, orig. proceeding) ................ 41, 49 Elkins v. Stotts-Brown, 103 S.W.3d 664, 669 (Tex. App.—Dallas 2003, no pet.) .................................69 Fiberglas Corp. v. Malone, 972 S.W.2d 35, 52 n.7 (Tex. 1998) .........................................................44 First City Bank—Farmers Branch v. Guex, 677 S.W.2d 25, 30 (Tex.1984) .........................................66 Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex.2009) ...............................58 Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997)................................................................ 65, 71 Grant v. Espiritu, 470 S.W.3d 198, 203 (Tex. App.—El Paso 2015, no pet.). ........................... 52, 56, 63 Grass v. Golden, 153 S.W.3d 659, 663 (Tex. App.—Tyler 2004, orig. proceeding) .................. 53, 56, 63 In re Bennet, 960 S.W.2d at 36-37 .................................................................................................74 In re Bennett, 960 S.W.2d 35, 39 (Tex. 1997) .................................................................................70 In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) ......................................................................67, 69, 71 In re Berrenberg, 605 S.W.3d 922, 927 (Tex. App.—El Paso 2020, orig. proceeding) ................... 39, 64 In re Collins, 286 S.W.3d 911, 919 (Tex. 2009) (orig. proceeding) ............................ 51, 52, 57, passim In re E.I. DuPont De Nemours and Co., 136 S.W.3d 218, 225 (Tex. 2004, orig. proceeding) .......... 52, 54 In re E.I. DuPont De Nemours and Co., 136 S.W.3d at 223 ................................................... 52, 57, 58 In re E.I. DuPont De Nemours and Co., 136 S.W.3d at 224 ..............................................................52 In re E.I. DuPont De Nemours and Co., 136 S.W.3d at 226. .............................................................52 In re FedEx Ground Package Sys., Inc., 609 S.W.3d 153, 159–60 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding) ..................................................................................................41, 49, 50 In re J.M., No. 14-24-00478-CV (Tex. App.—Houston [14th Dist.] 2024, opinion delivered October 15, 2024) ................................................................................................................................ 42, 47 In re K.L. & J. Ltd P’ship, 336 S.W.3d 286, 294 (Tex. App.—San Antonio, 2010) (orig. proceeding).... 53 In re K.L. & J. Ltd. Partnership, 336 S.W.3d at 293 .................................................................. 64, 65 In re Memorial Herman Hosp. Sys., 464 S.W.3d 686, 698 (Tex. 2015, orig. proceeding) ........... 51, 55, 56 In re Memorial Herman Hosp. Sys., 464 S.W.3d at 695 and 698. .......................................................55 In re National Lloyds Ins. Co., 532 S.W.3d 794, 804 (Tex. 2017, orig. proceeding). ............................52
APPELLANT’S AMENDED BRIEF Page 6 of 77 In re Wal-Mart Stores, Inc., 545 S.W.3d 626, 636-37 (Tex. App.—El Paso, 2016)(orig. proceeding) ..... 64 Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004) ............................................50 Jordan v. Fourth Court of Appeals, 701 S.W.2d 644, 648-649 (Tex. 1985) .........................................52 Kennedy v. Kennedy, 125 S.W.3d 14, 19 (Tex. App.—Austin 2002, pet. denied) ........... 68, 71, 72, 73, 74 Knebel v. Capital Nat’l Bank in Austin, 518 S.W.2d 795, 804 (Tex. 1974)..........................................66 Kutch v. Del Mar Coll., 831 S.W.2d 506, 510 (Tex. App.—Corpus Christi 1992, no writ) .................... 68 Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 663 (Tex.2010). .............................................59 Martin v. Ventura, 493 S.W.2d 336, 338–39 (Tex. Civ. App.—Tyler 1973, no writ) ................. 44, 45, 46 Masinga v. Whittington, 792 S.W.2d 940, 940 (Tex. 1990) ...............................................................62 McWhorter v. Sheller, 993 S.W.2d 781 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) ......... 68, 70 Medlin v. King, 705 S.W. 3d 267 ............................................................................................. 41, 42 Monsanto v. Davis, 25 S.W.3d 773, 781 (Tex. App.—Waco 2000, pet. dism’d w.o.j.) ......................... 44 New Amsterdam Cas. Co. v. Texas Indus., 414 S.W.2d 914, 915 .......................................................66 Onwuteaka v. Gill, 908 S.W.2d 276, 280 (Tex. App.—Houston [1st Dist.] 1995, no writ) .............. 68, 71 Pearson v. Stewart, 314 S.W.3d 242, 248 (Tex. App.—Fort Worth 2010, no pet.) ...............................69 Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) .......................................................45 Railroad Comm'n v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex.2011) 58 Roadway Exp., 447 U.S. at 767. ....................................................................................................68 Roadway Exp., Inc. v. Piper, 447 U.S. 752, 764 (1980) .............................................................. 67, 68 Robson v. Gilbreath, 267 S.W.3d 401, 407 (Tex. App.—Austin 2008, pet. denied) ........................ 69, 75 Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 484-85 (Tex. 2019) ................... 65 Ryals v. Canales, 767 S.W.2d 226, 229 (Tex. App.—Dallas 1989, orig. proceeding) ...........................52 Sauve v. State, 638 S.W.2d 608, 610 (Tex. App.—Dallas 1982, pet. ref'd) ..........................................45 TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913,917 (Tex. 1991) ..................................50 University of Tex. v. Morris, 344 S.W.2d 426, 429 (Tex. 1961) .........................................................44 Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex. 1962)............................................................66 Zuehl Land Dev., LLC v. Zuehl Airport Flying Cmty. Owners Ass’n, Inc., 510 S.W.3d 41, 53 (Tex. App.—Houston [1st Dist.] 2015, no pet.) ....................................................................................69 Zuehl Land Dev., LLC, 510 S.W.3d at 54 ................................................................................. 69, 75 Statutes Tex. Civ. Prac. & Rem. Code §30.006(c)........................................................................................19 Tex. Civ. Prac. & Rem. Code §30.006(c)(1)(B) and (2) .............................................................. 57, 58 Tex. Civ. Prac. & Rem. Code §30.006(c)(2) ...................................................................................58 Tex. Gov’t Code §552.108(c).............................................................................................14, 22, 54 Tex. Gov't Code §30.006(d) .................................................................................................... 58, 59 Rules Tex. R. Civ. P. 176.6(a), 176.6(f), 176.3, 176.7 ...............................................................................47 Tex. R. Civ. P. 176.1(g) ......................................................................................................... 32, 72 Tex. R. Civ. P. 21a ......................................................................................................................74 Tex. R. Civ. P. 176.6(a), 176.6(f), 176.8 .........................................................................................71 Tex. R. Civ. P. 176.3(b) .............................................................................................. 39, 56, 58, 59 Tex. R. Civ. P. 176.4(a) ................................................................................................................47
APPELLANT’S AMENDED BRIEF Page 7 of 77 Tex. R. Civ. P. 176.4(b) ......................................................................................................8, 13, 40 Tex. R. Civ. P. 176.5(a) ................................................................................................................16 Tex. R. Civ. P. 176.6(a), 176.6(f), 176.7. .................................................................................. 46, 48 Tex. R. Civ. P. 176.6(e) .................................................................................. 16, 34, 42, 75, passim Tex. R. Civ. P. 176.6(e) and 192.6 .................................................................................................16 Tex. R. Civ. P. 176.6(f) ................................................................................................... 40, passim Tex. R. Civ. P. 176.7.............................................................................................................. 46, 60 Tex. R. Civ. P. 192.3....................................................................................................................49 Tex. R. Civ. P. 192.6(a) ................................................................................................................50 Tex. R. Civ. P. 192.6(b) ...............................................................................................................61 Tex. R. Civ. P. R. 192.6(b)(1)-(5) ..................................................................................................65 Tex. R. Civ. P. Rule 176.3(b) ........................................................................................................41 Tex. R. of Civ. P. 176.6(a) and 176.7 .............................................................................................45
APPELLANT’S AMENDED BRIEF Page 8 of 77 RECORD REFERENCES AND ABBREVIATIONS
In this brief, the following record citation forms and abbreviations will be used:
1. The Clerk’s record will be cited as CR.1 for (Volume).(Page)
2. The provisions in the Judgment will be cited from the clerk’s record as
CR.1(1) for (Volume).(Page)(findings)
3. The first volume of the Reporter’s record will cited as RR.1 for
(Volume).(Page)
4. The second volume of the Reporter’s record will be cited as 2RR.1 for
(Volume).(Page).
5. The third volume of the Reporter’s record will be cited as 3RR.1 for
6. The 193rd Judicial District Court in Dallas County, Texas will be referenced
as 193rd.
7. The 429th Judicial District Court in Collin County, Texas will be referenced
as 429th.
8. Any reference to the Texas Attorney General will be abbreviated as AG
9. “Davis” is a reference to Appellees’ counsel Robert Davis at the 429th.
APPELLANT’S AMENDED BRIEF Page 9 of 77 STATEMENT OF THE CASE Nature of the Case
In pending cause number DC-20-18978 before the 193rd in Dallas County,
Texas (“the trial court”), Appellant’s clients, Edward and Robin Brown, as Plaintiffs,
sued Crow-Billingsley Air Park Ltd and Tango Thirty One Aero Clube, Inc.,
defendants, seeking damages from defendants under the Theft Liability Act, the
Fraudulent Lien Statute, for fraud and conversion. CR.42. Trial subpoena issued by
Appellant as an officer of the 193rd in Dallas County, Texas pursuant to Tex. R. Civ.
P. 176.4(b) commanding the presence of the named officers to appear and testify
about the crime of theft which they investigated. CR.42, 47, 53, 59, 64. Deputy
Watson received personal service. CR.60. Deputy McMillan, Chief Deputy
Rumfield and Deputy Mounger electronically signed written memorandum
acknowledging receipt of the subpoena and waiving the method of service. CR.48-
49, 54-55, 65-66.
Course of the Proceedings
On November 25, 2024, a cause of action at the 429th in Collin County, Texas
was commenced in the name of the Officers by Motion to Quash the trial subpoena,
Motion for protective order and Motion for Attorney’s fees alleging that the
subpoenaed witnesses were harassed or unduly burdened by the trial subpoena, and
alleging that the trial subpoena is actually a discovery subpoena seeking privileged APPELLANT’S AMENDED BRIEF Page 10 of 77 information that is allegedly precluded by disclosure in opinion rulings of the AG.
CR.7-8. The AG however, expressly ordered 1 the disclosure of the basic information
being information about the arrest, the arrested person and the crime pursuant to Tex.
Gov’t Code §552.108(c). CR.21-22. The Motion for protective order requested
reimbursement of costs and attorney’s fees to be paid by Appellant—but not by the
parties—allegedly pursuant to Rule 192.6(b). CR.14-15.
At the 193rd in Dallas County, Texas, the Browns moved, pursuant to Tex. R.
Civ. P. Rule 176.8, to compel the appearance of their subpoenaed witnesses at the
193rd, as the issuing trial court. CR.42-70. On December 9, 2024, a conclusory
supplemental motion for protective order and for sanctions against Appellant only,
was filed at the 429th alleging that the 429th in Collin County has inherent
jurisdiction to hold Appellant in contempt of the 429th Court’s “Protective Order”
by sanctioning appellant, who did not appear before the 429th, without personal
service on the Browns or Appellant and without a show cause order, for, inter alia,
the alleged extra-judicial conduct of seeking an order to compel at the issuing 193rd
trial court. CR.27-32, 75-86. The 429th heard arguments from Davis without any
evidence to support the issuance of a protective order. 2RR.2. Neither Appellant nor
1 CR.21-22; September 29, 2021 and December 17, 2021 ruling “However, you must release the basic information pursuant to section 552.108(c) of the Government Code” being “information that is basic information about an arrested person, an arrest, or a crime.” APPELLANT’S AMENDED BRIEF Page 11 of 77 the parties to the 193rd case participated in the 429th case at any stage of those
proceedings. 2RR.2.
Trial court’s disposition
On January 30, 2025, the 429th signed a final judgment, not against the parties,
but against Appellant, granting all conclusory requests made by all Appellees against
Appellant, then granted all relief sought by first Appellee, which is not a party to
either proceeding signed on January 30, 2025. CR.94. Appellant filed a Notice of
Appeal on grounds of clear error on the record. CR.100.
STATEMENT REGARDING ORAL ARGUMENT Appellant does not request oral argument, however, if this court requires it to
aid the court to reach a just and fair decision, Appellant will appear and make
arguments.
STATEMENT OF ISSUES PRESENTED ISSUE 1: With respect to trial subpoenas under Tex. R. Civ. P. 176.6(f) as opposed
to discovery subpoenas, did the Collin County 429th have jurisdiction to quash the
Dallas County 193rd’s trial subpoena and issue a protective order against appellant
when the 193rd is the trial court and the specified place of compliance?
APPELLANT’S AMENDED BRIEF Page 12 of 77 ISSUE 2: Was there sufficient evidence on the record before the 429th to justify
quashing the 193rd’s trial subpoena and entering a protective order against the
appellant or even the 193rd Plaintiffs?
ISSUE 3: On the record before this court, and the conduct for which appellant was
sanctioned, was there sufficient evidence of bad faith abuse of the judicial process
that significantly interfered with the 429th’s core traditional judicial functions as to
justify sanctions against appellant in favor of a nonparty?
STATEMENT OF RELEVANT FACTS
I. AT THE 193RD IN NOVEMBER 2024
In cause number DC-20-18978, a pending suit for damages before the 193rd,
Appellant represents Edward and Robin Brown who sued Crow-Billingsley Air Park
Ltd and Tango Thirty One Aero Clube, Inc. under the Theft Liability Act, the
Fraudulent Lien Statute, and for fraud and conversion. CR.42. Being a 2020 case, at
least six prior trial subpoena had issued for each trial setting and over the years, the
officers had each agreed to be prepared for trial and had called appellant each time
but never mentioned being represented by counsel. CR.37.
For the trial setting of December 3, 2024, trial subpoena again issued by
Appellant as an officer of the 193rd pursuant to Tex. R. Civ. P. 176.4(b) commanding
the presence of the named officers to appear and testify about the crime of theft
APPELLANT’S AMENDED BRIEF Page 13 of 77 which they investigated. CR.42, 47, 53, 59, 64. On November 19, 2024, Officer
Watson received personal service and refused the witness fee but called Appellant
to discuss his availability. CR.60, CR.37. Between November 18 and November 20,
2024, Officers McMillan, Rumfield and Mounger electronically signed written
memoranda acknowledging receipt of the trial Subpoena and waiving the method of
service. CR.37, 48-49, 54-55, 65-66.
II. AT THE 429TH IN NOVEMBER 2024
On November 25th, 2024, Davis, initiated a new cause of action No. 429-
08578-2024 at the 429th by Motion to Quash the trial subpoena, Motion for
protective order and Motion for Attorney’s fees wherein without evidence, he made
conclusory allegations that (1) the officers were being harassed or unduly burdened
by the trial subpoena, (2) that the trial subpoena is actually a discovery subpoena
seeking privileged information and records allegedly precluded from disclosure by
opinion rulings of the AG, when the AG expressly ordered 2 release of the basic
information about the arrest, the arrested person and the crime pursuant to Tex. Gov’t
Code §552.108(c). CR.7-8, 21-22. The Motion offered no evidence by affidavit or
2 CR.21-22; September 29, 2021 and December 17, 2021 ruling “However, you must release the basic information pursuant to section 552.108(c) of the Government Code” being “information that is basic information about an arrested person, an arrest, or a crime.” APPELLANT’S AMENDED BRIEF Page 14 of 77 testimony in support of any of the allegations and no evidence was tendered for in
camera inspection by the 429th. CR.17-26.
The Motion requested reimbursement of costs and attorney’s fees to be paid
by Appellant 3—not by the parties—allegedly pursuant to Rule 192.6(b) and
requested that the attorney’s fees be paid, not to the officers, but to Collin County.
CR.14-15. Davis emailed appellant to decline appearance at the 193rd unless the
429th ordered 4 them to appear. CR.38. The documents attached to the Motion were
images of the trial subpoenas and opinion rulings of the AG with unidentified
requestors. CR.17-20, 21-26.
The motion alleged without evidence, that the trial subpoena is “the latest
attempt by Counsel Offoboche to obtain law enforcement records from Collin
County for what is essentially a civil dispute” when there is nothing in the attached
opinion rulings that shows that appellant was the requestor or was attempting to
obtain law enforcement records. CR.8, 21-26. The motion alleged that the trial
subpoena was a request for information through the testimony of appellees which
the AG had, allegedly, repeatedly advised is not subject to public disclosure, when
the opinion rulings contain the AG’s express instruction to release the basic
3 The attempt to intimidate appellant by personal attacks over a dispute of jurisdiction, resulted in extra-judicial adversarial between appellant and Robert J. Davis which Davis then used in the supplement to redirect the 429th’s focus to appellant instead of the absence of prima facie evidence to support the protective order claims of privilege, undue harm or harassment. CR.33-39. 4 Implying no inherent authority of the 193rd to order their appearance at trial in that court. APPELLANT’S AMENDED BRIEF Page 15 of 77 information pursuant to section 552.108(c) of the Government Code which requires
release of information about the crime, arrest and arrested person. CR.8, 21,22, 24,
25.
The trial subpoena5 did not require that the officers bring any records with
them to court other than some form of government issued identification to enable
the 193rd identify each witness, hence, while there is no factual basis for alleging that
the trial subpoena was a discovery subpoena, per the AG’s opinion rulings on which
appellees rely, the Browns were entitled to have the officers testify about the basic
information being the crime, arrest and arrested person. CR. 8, 21-26.
Davis argued via motion and hearing that the 429th has exclusive jurisdiction
to hear the motion for protective order. CR.9 citing Tex. R. Civ. P. 176.6(e) and
176.5(a) and alleging improper service on the officers. CR.9, 12, 2RR.7 lines 11-14.
To support the assertions, though each officer had either been served in person or
signed written memoranda receiving service and waiving the method of service,
Davis lied to the 429th Court that service was not proper because allegedly, they were
all served by email. CR.9, 12; CR.60 (Watson Personal Service Affidavit); CR.48-
49 (McMillan Waiver); CR.54-55 (Rumfield Waiver); and CR.65-66 (Mounger
Waiver). Appellees concluded that they need not comply with the part of the trial
5 CR.47, 53, 59, 64 APPELLANT’S AMENDED BRIEF Page 16 of 77 subpoena from which protection is sought under Tex. R. Civ. P. 176.6(e) and 192.6
being their appearance at the 193rd trial court. CR.9.
(1) ALLEGED REQUESTS FOR INFORMATION AND RECORDS
In the motion, without stating what law enforcement records were allegedly
requested by “appellant”, Davis argued that they have been at least four Public
Information Act requests for the same unidentified law enforcement records all of
which allegedly, the AG decided, are not subject to public release. CR.9. The
description of each request failed to indicate who the requestors are, what specific
information was requested and most importantly, it failed to notify the 429th that the
AG ordered the release of the basic information-about the crime, arrest and arrested
person. CR.9-10 but see CR.21-22 (OR2021-26709; OR2021-36193 ordering “you
must release the basic information pursuant to section 552.108(c) of the Government
Code”); CR.23-26; CR.24, 25 respectively (instructing appellees to rely on the
previous determination in OR2021-36193 ordering the release of the basic
information pursuant to section 552.108(c) of the Government Code).
In the motion, appellees offered inapplicable case law asserting that when law
enforcement records are requested during discovery in a civil proceeding, the Public
Information Act governs, when that case applies to requests for information made
during discovery and not when officers are commanded to testify by trial subpoena.
APPELLANT’S AMENDED BRIEF Page 17 of 77 CR.10 citing Hobson v. Moore, 734 S.W.2d 340, 341 (Tex. 1987) to propose that
the exceptions in the Public Information Act create a privilege from discovery in
civil litigation, when the trial subpoenas served were not discovery subpoena and
were served post-discovery from the 193rd. CR.21-26.
In the motion, Davis laid out in detail the alleged process for obtaining law
enforcement records during discovery and the statutory restrictions on discovery
orders in civil actions, though no discovery was sought by the trial subpoena. CR.11;
CR.47, 53, 59, 64. To compensate for sidestepping this small but important detail,
Davis misdirected the 429th by asserting that appellant, and not the party in the 193rd
lawsuit, was seeking the release of records through witness testimony by allegedly
improper use of subpoenas. CR.11. However, neither appellant nor the Plaintiffs at
the 193rd served subpoenas during discovery on any officer or witness rather the
officers were subpoenaed to testify at the trial and not required to bring any records
to court. CR.47, 53, 59, 64.
Further, Davis argued that “the records which counsel Offoboche seeks fall
squarely within Tex. Civ. Prac. & Rem. Code §30.006(c)” without alleging that the
release of the information, records, documents or evidentiary materials or tangible
things would interfere with the detection, investigation, or prosecution of criminal
acts, when that statute applies to discovery subpoena served during discovery, and
APPELLANT’S AMENDED BRIEF Page 18 of 77 does not apply to trial subpoena; and when no party was seeking records from any
of the officers, much less appellant, who is not a party. CR.11, 47, 53, 59, 64.
(2) ALLEGED REASONS TO QUASH THE SUBPOENAS
Davis argued that the 429th had three reasons for quashing the subpoena. First,
counsel argued that the subpoena should be quashed because the “subpoenas were
merely emailed to the four witnesses.” CR.12. This assertion is negated by the record
filed with the supplement which shows that Officer Watson was personally served.
CR.60. And the waivers on file show that Officer McMillan, Officer Rumfield and
Officer Mounger all electronically signed written memoranda acknowledging
receipt of service and waiving the method of service. CR.48-49, 54-55, 65-66. Thus,
even the “evidence” attached to the motion at the 429th court, did not support the
motion to quash or for protective order. CR.12; CR.48-49, 54-55, 60, 65-66.
Second, Davis argued, without tendering the open records request or the
records for in camera inspection, that the “requested records” are privileged from
public disclosure based on the AG’s Opinion rulings, when no records were
requested by the trial subpoena; and when the AG’s Opinion showed that the AG
Ordered the release of the basic information pursuant to section 552.108(c) of the
Government Code. CR.12, 47, CR.21-22.
APPELLANT’S AMENDED BRIEF Page 19 of 77 Third, Davis argued that the trial subpoena, which did not request any
discovery from the officers, and which was not tendered during discovery, required
appellant to follow the procedures set out in Tex. Civ. Prac. & Rem. Code
§30.006(c), and allegedly appellant having failed to follow the procedures set forth
therein, had “conflated the process” and foisted the obligation on the witnesses to
respond to the allegedly improperly issued subpoena. CR.12-13. However, the trial
subpoena attached to the motion at the 429th Court ordered the officers to appear at
a trial setting without any records and were not issued during discovery. CR.47, 53,
59, 60.
(3) THE UNSUBSTANTIATED MOTION FOR PROTECTIVE ORDER
In seeking the protective order, Davis emphasized the provisions of Texas
Rule of Civil Procedure 176.7 which requires a court, upon objection or motion6 to
provide a person served with a subpoena with protection from disclosure of
privileged material or information, and protection from undue burden and expense.
CR.13. Davis emphasized specific provisions of Texas Rule of Civil Procedure
176.6(e) stating that a “person commanded to appear at a trial may move for a
protective order under Rule 192.6(b). A person need not comply with the part of a
6 Placing the burden on the party opposing the subpoena to prove that the information requested is privileged and that the movant will suffer undue burden and expense if a protective order is not granted. APPELLANT’S AMENDED BRIEF Page 20 of 77 subpoena from which protection is sought under this paragraph unless ordered to do
so by the court.” CR.13 (emphasis added).
Davis relied on Texas Rule of Civil Procedure Rule 192.6(b)’s provision that
“to protect the movant from undue burden, unnecessary expense, harassment,
annoyance, or invasion of personal, constitutional, or property rights, the court may
make any order in the interest of justice.” CR.13. However, having laid out the rules
on which appellees rely, Davis for appellees then concluded, without tendering any
evidence of harassment, annoyance, disruption from their duties 7 or requested
privileged information, that a protective order be issued so that they are not harassed
or annoyed by subpoena seeking to force them to appear in Dallas County, disclose
privileged law enforcement information, and also subjecting them to unnecessary
disruption from their duties. CR.14; but see CR.21-22.
Ignoring the obligation to release basic information about the crime, the arrest
and the arrested person in the AG’s opinions, Davis requested that the 429th court
issue a protective order to protect “the law enforcement records being sought,” when
no law enforcement records were sought in the trial subpoena. CR.14, 21-22 and
CR.47, 53, 59, 64.
7 Officers’ duties typically include testifying in court about the crime, the arrest and the arrested person in a matter that they investigated which is the basic information ordered to be released by the attorney general’s opinion pursuant to Tex. Gov’t Code §552.108(c). CR.21-22. APPELLANT’S AMENDED BRIEF Page 21 of 77 Counsel for appellee argued, without evidence, that the 429th court should
issue the protective order to protect allegedly requested law enforcement records
“particularly those which may be involved in investigations and/or implicate
personal, statutory, or constitutional confidentiality and/or privacy rights” without
tendering any evidence by records or affidavits to show that any alleged records were
involved in investigations, or implicated personal, statutory, constitutional
confidentiality or privacy rights or even that the trial subpoena requests any such
records. CR.14, 47.
Without any evidence, Davis concluded that the factually unsubstantiated
request for a protective order is consistent with the public policy underlying the
Texas Public Information Act, the holdings of the Texas Supreme Court and the
Texas Rules of Civil Procedure without meeting the prima facie threshold for
obtaining a protective order from any court. CR.14. However, having identified the
imagined part of the trial subpoena that appellees would not comply with, counsel
for the officers informed appellant that the officers would not be attending the trial
even though, they did not seek protection from the basic information about the crime,
the arrest and the arrested person, that the AG required them to release. CR.39,
CR.21-22 (requiring disclosure of information about the crime, the arrest and the
arrested person pursuant to §552.108(c) of the Tex. Gov’t Code).
APPELLANT’S AMENDED BRIEF Page 22 of 77 (4) ALLEGED RULE 192.6(B) RIGHT TO NONPARTY COLLIN COUNTY’S ATTORNEY’S FEES For the sole purpose of intimidating appellant, though not authorized under the
rule, the officers cited Tex. R. Civ. P. Rule 192.6(b)’s authorization for the court to
make “any order in the interest of justice” allegedly to protect the movant from
unnecessary expense,” as a basis for ordering reimbursement of Attorney’s fees
payable to Collin County, which is not a party to the case at the 429th District Court
or the case at the 193rd, and requested that the attorney’s fees be borne by appellant.
CR.14-15. Davis made factually unsubstantiated arguments alleging rule-based
proscription of unnecessary expense without stating how attendance at the trial
would be an unnecessary expense8; alleging witness ambush 9 when the witnesses
had received the exact same trial subpoena at least six times before for prior trial
settings and communicated with appellant severally regarding the trial 10; and
alleging compulsion of expedited production of allegedly privileged/confidential
law enforcement records all allegedly arising from trial subpoena that does not
request the production of any records. CR.14 but see CR.47, 53, 59, 64. The motion,
however, offers no legal or evidentiary basis for the award of attorney’s fees under
Rule 192.6(b). CR.7-26.
8 CR.14 but see CR.17-26 showing evidence that attendance at trial would be an unnecessary expense. 9 CR.14. 10 CR.37. APPELLANT’S AMENDED BRIEF Page 23 of 77 III. The Browns’ Rule 176.8 Motion to Compel at the Issuing 193rd Court
Appellee’s counsel served the Motion for protective order asserting then that
they will not comply with any order from the issuing11 court and arguing that the
mere filing of their motion constitutes a protective order precluding the officers from
appearing “in Dallas County until and unless the Collin County District Court 12
orders them to do so.” CR.39. This preemptive refusal to comply with any order
from the 193rd unless the court of equal jurisdiction, the 429th, ordered them to do
so, led appellant, on behalf of the Browns, to warn the officers-through their counsel,
that the Dallas County Judge may have the officers escorted into court if they refused
to comply with a 193rd court order and confirmed the intent to file a Motion to
Compel. CR.28.
Per Texas Rule of Civil Procedure Rule 176.8 therefore, on November 28,
2024, at 5:39 AM CST, at the issuing 193rd Court, the Browns filed their Motion to
Compel 13 compliance with their trial Subpoena and order attendance of witnesses
subpoenaed to testify at trial, then served all parties including Davis through the
efiletexas.gov e-file service per Rule 21a. CR.42-70 (showing submission and
service on 11/28/2024 at 5:39AM CST as the date and time on which the motion
11 The Judge of the 193rd Court in Dallas County, Texas 12 The 429th Court 13 The Motion was supported by Exhibits 14 being e-filed returns of service of each subpoena, with the process server’s affidavits and the officers’ waivers.
APPELLANT’S AMENDED BRIEF Page 24 of 77 was submitted for “Efile And Serve” to all including Appellee’s counsel-Bob Davis).
CR.71. The filing was accepted by the Dallas County Clerk’s Office on Monday,
December 2, 2024 at 12:00AM. CR.42. For some inexplicable reason, counsel for
the officers’ claims that the efiletexas.gov system singled him out for unique service
on December 1, 2024 and blames appellant for his allegedly receiving service on
December 1, 2024 instead of November 28, 2024 when his proof of service clearly
shows that the filing was submitted for e-filing and eservice on everyone at 5:39AM
on December 28, 2024. CR.71, 30.
IV. Contents and Response to Motion to Compel Compliance with trial subpoena filed at the 193rd On November 28, 2024, Plaintiffs at the 193rd filed a Motion for Compliance
with their trial subpoena and served all parties on November 28, 2024. CR.42-71.
Therein, Plaintiffs sought to have the 193rd Court, as the issuing trial court, compel
the attendance of their trial witnesses who are the officers. CR.42-45. In support of
the motion to compel, Plaintiffs attached Exhibits 1-4 being the trial subpoena that
issued from the 193rd and the independent process server’s affidavit of personal
service along with affidavits of service with waivers to prove that the subpoena were
served. CR.46-70. Upon receipt of the Motion to Compel, Appellees filed a Motion
to Quash, Supplement Requesting issuance of Protective Order and Motion for
Sanctions by award of non-party Collin County’s Attorney’s fees at the 429th.
CR.27-83. APPELLANT’S AMENDED BRIEF Page 25 of 77 V. Supplement to Motion to Quash, Request for Issuance of Protective Order, and Award of Collin County’s Attorney’s Fees At the 429th, Davis filed a supplement to their motion to quash and requested
issuance of a protective order and award of non-party Collin county’s attorney’s fees
(“the supplement”). CR.7, 47, 53, 59, 64. First, attached to the supplement is a series
of email communications between appellant as counsel for the 193rd Plaintiffs and
Davis in this court, disagreeing about how a protective order works and which court
has jurisdiction as well as allegations by Davis accusing appellant without evidence
of attempting to serve new subpoena on the witnesses and alleging without evidence
that Appellant had been trying to contact appellees. CR.33-39. Secondly, a copy of
the Browns’ Motion to Compel which was filed at the 193rd with all its exhibits was
attached to the supplement. CR.42-70. And thirdly, copies of efiling envelope
courtesy notifications showing that the motion to compel compliance was efiled and
eserved on November 28, 2024 highlighting December 1, 2024 on the printed email
communication. CR.71-73. No evidence was offered in the form of Affidavits,
testimony or other evidence tendering any privileged information for in camera
review or any supporting any claim to attorney’s fees or any basis for a motion for
sanctions. CR.33-74.
In the supplement Davis complained to the 429th District Court that even
though he had filed but failed to establish a basis for obtaining a protective order,
appellant’s extrajudicial communications with him as the opposing counsel, to the APPELLANT’S AMENDED BRIEF Page 26 of 77 effect that there was no protective order yet and warning of what may happen at the
Dallas County Court when the planned motion to compel is filed and heard,
constituted allegedly “repeated threats to subjugate and thwart the 429th Court’s
jurisdiction and authority over the” officers pending motion and by alleged improper
contact with the officers. CR.28. Again, no evidence of misconduct was actually
tendered. CR.28. Davis claimed that being informed of the Browns’ intent to obtain
an order to comply with the trial subpoena at the issuing 193rd Dallas County Court
per Tex. R. Civil Proc. Rule 176.6(e) constituted intentionally ignoring the effect of
filing a motion to quash which merely stops the objecting party from complying with
the part of the subpoena objected to. CR.28.
Even though appellant had notified opposing counsel that a Motion to compel
was being filed at the 193rd District Court, Davis alleged without evidence, that
Appellant, who is not a process server, was attempting to serve new subpoenas on
the officers. CR.28-29. Then, Davis absurdly alleged that the Browns filing of their
Motion to Compel at the issuing 193rd District Court was an attempt by appellant to
get the Dallas County Court to rule on the officers’ motion rather than the Browns
motion to compel. CR.29.
Davis accused Appellant of misstating the provisions of TRCP 176.8. CR.29.
Specifically, in the motion to compel, the Browns had invoked the jurisdiction of the
193rd District Court as the issuing Court to enforce its subpoena pursuant to Rule APPELLANT’S AMENDED BRIEF Page 27 of 77 176.8 which authorizes the issuing court to punish a person who fails without
adequate excuse to obey a subpoena. CR.44. Davis argued, that the Browns’
invocation of the issuing court’s jurisdiction to enforce its subpoena is a
misstatement of the law by appellant because he believed that it was the district court
in the county in which the subpoena is served that had jurisdiction to enforce the
issuing court’s subpoena when Rule 176.8 first invokes [or prioritizes] the issuing
court as the contempt court and in the alternative (or), a district court in the county
in which the subpoena is served. CR.29; Tex. R. Civ. P. 176.8(a).
Counsel for appellee then confused the issues regarding the Motion to Compel
which is still pending in the issuing Dallas County District Court and the Motion for
protective order in Collin County, by arguing that Rules 176.6(e) and Rule 176.8
give the alternative court in Collin County jurisdiction to conduct a hearing on the
Motion for Protective order insinuating that the Collin County Court has jurisdiction
of the Motion to Compel as well. CR.30.
The Motion to Compel which was filed in Dallas County and served on the
same date and time on all parties including counsel for the officers, became the
subject matter of a sanctions complaint at the Collin County Court, wherein Davis
argued that the Dallas County Motion to Compel was served on Thanksgiving day
with a “Certificate of Conference” that alleged that appellant served a copy of the
Motion to Compel on opposing counsel on November 28, 2024 but allegedly did APPELLANT’S AMENDED BRIEF Page 28 of 77 not. CR.30. However, the motion to compel does not contain a certificate of
conference at all. CR.45. Rather, it contained a Certificate of Service which shows
that counsel for the officers-Robert Davis-was served per TRCP Rule 21a by
simultaneous efile.texascourts.gov eservice upon e-filing on November 28, 2024 at
5:39AM like everyone else. CR.45. Counsel for the officers then claimed,
inexplicably, that he received courtesy notification that the motion had been filed on
December 1, 2024. CR.30.
Davis argued that the mere filing of a Motion for protective order granted the
429th jurisdiction over the trial subpoenas and not just the Motion for Protective
order. CR.30. Therein, Davis accuses appellant, as counsel for the Browns, of
continuing intentional harassment of the officers and alleged clear defiance of the
pending motion which he claims conferred exclusive jurisdiction of the 193rd trial
subpoena, on the 429th Court as if the latter court has appellate or superior
jurisdiction. CR.30.
The alleged “continuing intentional harassment…and alleged clear defiance”
of the 429th Courts alleged jurisdiction of the subpoenas, allegedly arose from the
Browns filing their November 28, 2024 Motion to compel compliance with the
November 18, 2024 subpoena at the issuing court in Dallas County for the
December 3, 2024 trial setting, upon receipt of the November 25-27, 2024
communication from opposing counsel that the officers would not be complying APPELLANT’S AMENDED BRIEF Page 29 of 77 with any part of the subpoena to appear. CR.30. Therein, Davis alleges without
evidence, that new subpoena had issued and should be quashed, a protective order
issued, confirming that none was yet in place, and that non-party, Collin County
should be reimbursed for its attorney’s fees and costs associated with the motion and
the supplement. CR.30.
Thereafter, Davis claimed without evidence of any harassment by appellant
or the Browns that there was a threat and substantial likelihood of ongoing
harassment by appellant which required the 429th Court to hear their motion for
protective order asserting that non-party, Collin County, was entitled to
reimbursement of its attorney’s fees and asserted that they had filed a Motion for
Sanctions against appellant. CR.31.
VI. The Motion for Sanctions
Davis filed a motion for sanctions, not on behalf of the officers, but on behalf
of Collin County, an entity that was not served with subpoena, and offered no
evidence in support of the motion for sanctions. CR.75, 78. There, Counsel for non-
party Collin County alleged without evidence that appellant should be sanctioned by
the 429th Court for allegedly subjugating and thwarting the 429th court’s jurisdiction
and authority over appellees then pending motion to quash and for protective order,
by (1) allegedly attempting to serve movants with new subpoena when there was a
APPELLANT’S AMENDED BRIEF Page 30 of 77 pending motion to quash and for protective order in the 429th court; (2) for allegedly
threatening to have movants found in contempt of the 193rd court before the 429th
Court had held any hearing or issued any orders; (3) for allegedly filing a motion to
compel in the issuing 193rd Court allegedly despite the alleged 429th’s jurisdiction
over the 193rd Court’s trial subpoena; and (4) for allegedly disingenuous and dilatory
service of the motion to compel pending at the 193rd court on Davis. CR.76.
All the accusations in the motion involved conduct that allegedly took place
outside the presence of the 429th Court. CR.75-76, 78-81. The evidentiary bereft
motion was allegedly based on the 429th’s inherent power to sanction on behalf of
Collin County-an entity that was not a party to the 429th case or the case at the 193rd
Court. CR.76.
With respect to the unsubstantiated allegation that appellant was attempting
to serve new subpoena when the motion to quash and for protective order was
pending before the 429th, Davis offered allegations and flowery accusations which
allegedly took place outside the presence of the 429th Court, intended to inflame the
passions of the 429th Court but offered but no evidence to support any of the
allegations and accusations. CR.79.
With respect to the allegation that the use of the word “may” is a threat to have
the officers held in contempt of the 193rd court, no competent evidence was tendered
APPELLANT’S AMENDED BRIEF Page 31 of 77 to the 429th Court to support the allegation when the risk of contempt for disobeying
a trial subpoena set out in Rule 176.8(a) is required on the face of subpoena by Rule
176.1(g), Tex. R. Civ. P. CR.79.
Davis’s claim that the Brown’s filing a Motion to Compel compliance with
their trial subpoena at the issuing 193rd Court, on November 28, 2024 for the
December 3, 2024 jury trial setting, was an attempt to interfere with the 429th Court’s
ability to decide issues of fact, questions of law and control management of its docket
was based on conduct occurring at the 193rd and lacked a legal or evidentiary basis
for a motion for sanctions because the 193rd is the trial court, not the 429th. CR.80.
Because there was no statutory or rule-based authority for Collin County
seeking the motion for sanctions against appellant, appellee’s counsel invoked the
inherent jurisdiction of the 429th court disregarding the inherent jurisdiction of the
193rd Court over its trial subpoena. CR.80. Davis argued that appellant interfered
with the 429th’s jurisdiction, the administration of justice and the independence and
integrity of the 429th Court and that this merited the award of sanctions against
appellant in favor of Collin County, a non-party entity. CR.80. Again, no evidence
was offered or relied upon. CR.80.
Lastly, Davis relied on his prior arguments in the supplement wherein he
alleged that appellant lied in the Certificate of Conference to the Browns’ Motion to
APPELLANT’S AMENDED BRIEF Page 32 of 77 Compel filed at the 193rd Court, that Davis had been served on November 28, 2024
but that he had been served on December 1, 2024 when the Motion to Compel does
not even contain a Certificate of Conference. CR.80-81, CR.30(3rd paragraph) but
see CR.45 showing no Certificate of Conference. CR.45.
VII. The hearing
The 429th Court heard Appellees’ motions. 2RR.2. Neither appellant nor any
other 193rd Court party participated at the 429th Court at any stage of those
proceedings. 2RR.2. At the hearing regarding the motions, no evidence was offered
or admitted to support any of the allegations in the Motion to Quash, the Motion for
Protective Order, the supplement and motion for sanctions, and no affidavit or
witness testimony was presented to the court. 2RR.1-13. No documents were
tendered to the 429th court for in-camera inspection regarding the privilege claims.
2RR.1-12, 3RR.1-5. Appellee’s counsel ended his argument with his testimony
regarding attorney’s fees only and tendered Exhibit A. 2RR.10-12. The Court
Reporter certifies that the 2-page attorney time entry sheet was the only evidence
offered or admitted during the hearing. 3RR.1. Without evidence, the Court signed
a judgment against appellant only and granted the application for fees as prayed.
1SCR.8.
VIII. Judgment: the 429th’s findings
APPELLANT’S AMENDED BRIEF Page 33 of 77 In the judgement were the 429th Court’s asserted jurisdiction over the matter
pursuant to Tex. R. Civ. P. 176.6(e) and found that appellant was the issuing attorney
but did not acknowledge that appellant was acting as an officer of the 193rd Court.
CR.95 (1)-(2). The 429th made the finding that appellant had been properly served
with the appellees’ motions including the motion for contempt which was labeled a
motion for sanctions when the record does not show that appellant was personally
served with a show cause order. CR.95(3), (5)-(6); CR.2.
Without sufficient evidence on the record, the court made the following
findings: (1) appellees were subpoenaed to testify about law enforcement records
arising from Public Information Act requests without viewing any Public
Information Act requests, and when there is no evidence on the record to show that
the claimed information was privileged since the AG’s Opinions before the court,
commanded the release of the basic information.14 (2) The court made the finding
that appellant improperly sent an email directly to the court when there is no
evidence in the record to show that appellant improperly sent an email to the court15
(3) that appellant failed to follow TCPRC Chapter 30 procedures when the trial
subpoena was not issued during discovery16, (4) that appellant did not take
14 CR.95(7) 15 CR.95(6) 16 CR.96 (8) APPELLANT’S AMENDED BRIEF Page 34 of 77 reasonable steps to avoid imposing undue burden or expense on the officers 17, (5)
that appellant ignored clearly established rules and case law regarding the effect of
a filed Motion to Quash/Motion for Protective Order and “basically” threatened to
have movants seized and brought to a Dallas Courthouse 18, (6) that appellant
continued to try to have the four Collin County witnesses served with new
Subpoena19, (7) that appellant had filed a Rule 176.8 Motion to Compel with the
Issuing 193rd Court in Dallas County 20, (8) that appellant falsely represented in a
Certificate of Conference in the Motion to Compel filed on Thanksgiving day,
November 28, 2024 that appellant served a copy of the same on the undersigned that
same day but did not, rather the court found that Davis received a Courtesy
Notification on December 1, 2024, when the Motion to Compel does not even
contain a Certificate of Conference21, (9) that appellant has engaged in “a series of
behavior constituting bad faith abuse of the judicial process and interference with”
the 429th’s “traditional core functions,” 22 (10) that appellant has allegedly been
disingenuous and dilatory in appellant’s service of appellant’s Motion to Compel in
a Certificate of Conference23, and that the above, all amounted to appellant seeking
17 CR.96 (9) 18 CR.96 (10) 19 CR.96 (11) 20 CR.96 (12) 21 CR.96 (13) 22 CR.96 (14) 23 CR.96 (14) APPELLANT’S AMENDED BRIEF Page 35 of 77 to subjugate and thwart the 429th’s jurisdiction and authority over the pending
Motion for protective order. 24
Having made the above findings, albeit without any actual evidence, and even
though the 429th held a hearing on the Motion to quash, for protective order and for
attorney’s fees and sanctions at the request of a nonparty, the 429th concluded that
appellant has infringed upon and interfered with the 429th Court’s ability to perform
its core judicial functions effectively and protect the court’s jurisdiction, dignity,
independence, and integrity and was sanctionable under the Court’s inherent powers
to deter, alleviate, and counteract bad faith abuse of the judicial process which
significantly interfered with the traditional functions of the 429th Court.25
The Court then granted the Motion to quash subpoena though not authorized
to do so under TEX.R. CIV. P. 176.6(d)-(e). CR.97. Though the subpoena at issue
is a trial subpoena and not issued during discovery, the 429th Court granted the
protective order precluding testimony related to and/or records governed by
§30.006(c) of the Texas Civil Practice and Remedies Code and precluding subpoena
to be requested and/or served upon the officers for their personal appearance at the
193rd Court without the 429th Court’s authorization. CR.97 (1)-(2). Lastly, the 429th
ordered appellant to pay $7,697.19, $15,000.00 and $20,000.00 in attorney’s fees
24 CR.96 (14) 25 CR.97 (16) APPELLANT’S AMENDED BRIEF Page 36 of 77 within 30 days of signing, and contingent attorney’s fees for appeal to the Dallas
Court of Appeals and Texas Supreme Court respectively, within 45 days of the
mandate, to nonparty Collin County, Texas, an entity that did not receive a trial
subpoena for allegedly being the attorney’s fees and cost incurred in preparing and
presenting the Motion to Quash, motion for protective order, for award of attorney’s
fees and for sanctions. CR.98. This appeal ensued.
SUMMARY OF ARGUMENT
A juxtaposed reading of the plain language of Rules 176.6(a), 176.6(f) and
176.7 gives the 193rd Court, as the issuing trial court that is the place specified for
compliance with trial subpoena, exclusive jurisdiction over its trial subpoenas and
the judgment against appellant should be voided.
There is insufficient evidence on the record to support the 429th’s granting of
the motion for protective order on grounds of privilege or undue burden, harassment,
unnecessary expense or annoyance and the judgment should be reversed.
There is insufficient evidence of bad faith abuse of the judicial process by
appellant that significantly interfered with the 429th Court’s traditional core
functions and invoking the inherent power of that court to sanction appellant was an
abuse of discretion.
APPELLANT’S AMENDED BRIEF Page 37 of 77 LAW AND ARGUMENT
PART I: THE 429TH ABUSED HER DISCRETION BY MAKING FINDINGS WITH INSUFFICIENT EVIDENCE A. STANDARD OF REVIEW
The 429th’s judgment, not being substantiated by evidence on the record, is an
abuse of discretion and should be reversed. A trial court cannot exercise its discretion
in the absence of evidence. In re Berrenberg, 605 S.W.3d 922, 927 (Tex. App.—El
Paso 2020, orig. proceeding) (holding that a trial court abuses its discretion when it
limits discovery in the absence of substantiating evidence in the record). The trial
court has no discretion in determining the law or applying the law to the facts.
Pressley v. Casar, 567 S.W.3d 327, 333 (Tex. 2019).
When, as here, a complete reporter's record is part of the record, the trial
court's challenged findings of fact are not binding on the court of appeals. Pearl Res.
LLC v. Charger Servs., LLC, 622 S.W.3d 106, 115 (Tex. App.—El Paso 2020, pet.
denied). That is, the court of appeals may look to the record to assess whether the
evidence sufficiently supports the findings. Browne v. Ortiz, 657 S.W.3d 704, 708
(Tex. App.—El Paso 2022, no pet.).
“A trial court’s wrong decision in applying or analyzing the law, even in an
unsettled area of the law, is an abuse of discretion.” In re R.R., 26 S.W.3d 569, 573
(Tex. App.—Dallas 2000, orig. proceeding)(citing Huie v. DeShazo, 922 S.W.2d
920, 927–28 (Tex. 1996) (orig. proceeding))). “[A] clear failure by the trial court to APPELLANT’S AMENDED BRIEF Page 38 of 77 analyze or apply the law correctly will constitute an abuse of discretion . . .” Walker
v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). “[T]he abuse of discretion standard is
typically applied to procedural or other trial management” decisions, either when
challenged on appeal or by original proceeding. In re Doe, 19 S.W.3d 249, 253 (Tex.
2000).
B. TRIAL SUBPOENA JURISDICTION OF THE 193RD vs. 429TH COURT
(i) TRIAL SUPBOENAS ARE TREATED DIFFERENTLY FROM DISCOVERY SUBPOENAS UNDER RULE 176
The subpoenas in question being Trial Subpoena and not a discovery
subpoena, the 429th Court lacked subject matter jurisdiction over the trial subpoena
issued by appellant as an officer of the 193rd Court, the court with the place of
compliance and abused her discretion by assuming 26 jurisdiction. Tex. Civ. P. R.
176.6(f). Because subject matter jurisdiction is essential to the authority of a court
to decide a case, it cannot be waived and may be raised for the first time on appeal.
Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000).
Subpoena is defined as “[a] writ or order commanding a person to appear
before a court or other tribunal, subject to a penalty for failing to comply.” Black's
Law Dictionary (12th ed. 2024). It is only a discovery subpoena that “may not be
used for discovery to an extent, in a manner, or at a time other than as provided by
26 CR.95 (1)-(2) APPELLANT’S AMENDED BRIEF Page 39 of 77 the rules governing discovery.” See generally Medlin v. King, 705 S.W. 3d 267 citing
Tex. Civ. P. R. 176.3(b).
Texas Rules of Civil Procedure provides that a person may be subpoenaed
both to give testimony and produce documents at trial. Tex. R. Civ. P. 176.3(b);
Medlin v. King, 705 S.W. 3d 267, ___ (Tex. App.—El Paso 2024). Rule 176.6(c)
provides that it is only a “[a] person commanded to produce documents or tangible
things [that] need not appear in person at the time and place of production unless the
person is also commanded to attend and give testimony, either in the same subpoena
or a separate one.”). Medlin v. King, 705 S.W. 3d 267, ___ (Tex. App.—El Paso
2024).
“A trial court has the authority to require a witness…to attend trial if the
witness resides within 150 miles of the courthouse of the county in which the suit is
pending or if the witness may be found within such distance at the time of trial.” In
re FedEx Ground Package Sys., Inc., 609 S.W.3d 153, 159–60 (Tex. App.—Houston
[14th Dist.] 2020, orig. proceeding) (emphasis added) (citing Dr. Pepper v. Davis,
745 S.W.2d 470, 471 (Tex. App.—Austin 1988, orig. proceeding)).
Like a Clerk of the appropriate Court, Rule 176.4 permits an attorney
authorized to practice in the State of Texas, to issue a subpoena as an officer of that
court. Tex. R. Civ. P. 176.4(b). When a person is commanded by subpoena to attend
and give testimony or to produce documents or things, at a hearing or trial, that
APPELLANT’S AMENDED BRIEF Page 40 of 77 person has the option under Rule 176.6(f), to comply or “object or move for
protective order before the court at the time and place specified for compliance” but
not in accordance with paragraphs (d) and (e) as those apply to discovery subpoena.
Tex. R. Civ. P. 176.6(f).
The word “subpoena” being synonymous with Order in Black’s Law
Dictionary, and the fact that a case set for jury trial can only have one trial court, the
word “may” in rule 176.6(f) which is specifically entitled “Trial Subpoena”
authorizes the option to object or move for a protective order before the issuing court,
but does not mean that the objection or move for protective order may be filed at
some other court as that would interfere with the trial court’s ability to control the
trial docket and command the attendance of witnesses especially in a case that is set
for jury trial. See generally, Medlin v. King, 705 S.W. 3d 267, ____ (noting the
difference between the requirements of discovery subpoena under Rule 176.3(b) not
being applicable to trial subpoena); and see, In re J.M., No. 14-24-00478-CV (Tex.
App.—Houston [14th Dist.] 2024, opinion delivered October 15, 2024) (quoting
Black’s Law Dictionary that subpoenas are court orders and finding that it is only
discovery subpoena and not trial subpoena that is limited “to an extent, in a manner
or at a time other than as provided by the rules governing discovery” citing Tex. R.
Civ. P. Rule 176.3(b)).
APPELLANT’S AMENDED BRIEF Page 41 of 77 Understanding Rule 176.6(f) as applying specifically to “Trial Subpoenas”
which require any exercise of the option to object or to move for protective order to
be filed at the “place specified for compliance” being the 193rd trial court in this case,
appellant filed the Browns Motion to Compel their trial subpoena at the issuing 193rd
Court. CR.42-70. However, the 429th Court viewed the trial subpoena as a discovery
subpoena and foisted jurisdiction on itself by relying on the provisions of Rule
176.6(e) as Davis claimed in the Motion for Protective Order and supplement.
CR.95(1), CR.9.
The 429th’s action was an erroneous assumption of subject matter jurisdiction
because Rule 176.6(f) was specifically designated in the rules to cover trial
subpoenas whilst protective orders against discovery subpoenas fall under Rule
176.6(e). Tex. R. Civ. P.; CR.95(1). Because the 193rd Court is the trial court on
whose behalf, appellant issued the trial subpoena for testimony, the trial subpoena,
unlike discovery subpoena, is a court order and therefore should be subject only to
the issuing court’s jurisdiction as the place specified for compliance. Tex. R. Civ. P.
176.6(f). And since the 193rd trial Court is the specified place for compliance in the
trial subpoenas and is also the court for which appellant was acting as an officer, in
issuing the trial subpoena on behalf of the Browns, an exercise of the option to object
or move for a protective order was required to be filed at the Dallas County 193rd
APPELLANT’S AMENDED BRIEF Page 42 of 77 Court in response to the trial subpoenas and not the Collin County 429th Court.
CR.47, 53, 59, 64 (App. 1-4); Tex. R. Civ. P. 176.6(f).
Additionally, it is well-settled in Texas that an appellate court’s review is
confined to the record in the trial court when the trial court acted. Owens-Corning
Fiberglas Corp. v. Malone, 972 S.W.2d 35, 52 n.7 (Tex. 1998); University of Tex.
v. Morris, 344 S.W.2d 426, 429 (Tex. 1961); Monsanto v. Davis, 25 S.W.3d 773,
781 (Tex. App.—Waco 2000, pet. dism’d w.o.j.). Based on the record before this
court, the 429th Court is not the court with subject matter jurisdiction over the trial
subpoenas pursuant to Rule 176.6(f), hence the 429th Court abused her discretion
when she assumed subject matter jurisdiction over the trial subpoenas for which she
lacked jurisdiction and her judgment should be reversed for want of jurisdiction.
Gibson, 22 S.W.3d at 850; Tex. R. Civ. P. 176.6(f).
(ii) THE 429TH ASSUMED JURISDICTION BASED ON A FALSE ASSERTION OF IMPROPER SERVICE OF SUBPOENA EVEN THOUGH THERE IS UNREBUTTED PRIMA FACIE EVIDENCE TO SUPPORT A PRESUMPTION OF PROPER SERVICE ON THE RECORD
Because the record affirmatively shows personal service and waiver of the
method of service by the process server’s return of service on file, appellees “failed
to rebut the presumption of regularity of service of the trial subpoena by the
corroborated testimony of the person against whom service of process is presumed.
Martin v. Ventura, 493 S.W.2d 336, 338–39 (Tex. Civ. App.—Tyler 1973, no writ)
APPELLANT’S AMENDED BRIEF Page 43 of 77 (cited in Sauve, 638 S.W.2d at 610). “The return of service is not a trivial, formulaic
document.” Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). It is
prima facie evidence of the facts recited therein. Sauve v. State, 638 S.W.2d 608,
610 (Tex. App.—Dallas 1982, pet. ref'd). “The weight given to the return is no less
when the recitations impeach the judgment than when they support it.” Id.
“Ordinarily, an officer's return which is valid on its face carries a presumption of the
truth of the facts stated on the return and of regularity.” Id.
This presumption reiterates the long-standing principles that (1) a return of
service is “prima facie evidence of the facts therein cited” and (2) the “presumption
of accuracy of a return of service may not be impeached by the uncorroborated
testimony of the person against whom service of process is presumed.” Martin v.
Ventura, 493 S.W.2d 336, 338–39 (Tex. Civ. App.—Tyler 1973, no writ) (cited in
Sauve, 638 S.W.2d at 610). Rule 176.5 requires proof of service to be filed showing
either the witness’s signed written memorandum or the process server’s statement
stating the date, time and manner of service, and the name of the person served. Tex.
R. Civ. P. 176.5(b).
In the record before this court is a process server’s return of service from the
193rd Court for each of the officers showing in-person service on Deputy Watson;
and the witnesses electronically signed written memorandum waiving the method of
service for Deputy McMillan, Chief Deputy Constable Rumfield and Deputy
APPELLANT’S AMENDED BRIEF Page 44 of 77 Mounger. CR.60, 48-49, 54-55, and 65-66 respectively. The returns of service being
“prima facie evidence of the facts therein cited carrying a presumption of accuracy,
the burden shifted to the officers to rebut the presumption with evidence that
corroborates the testimony of the officers as the persons against whom service of
process is presumed. Martin v. Ventura, 493 S.W.2d 336, 338–39. There is no
testimony on the record offered by any of the officers to rebut the presumption of
accuracy of service and no corroborating evidence on the record. RR; 2RR.1-13,
3RR showing no witness testimony regarding any facts. There is no evidence on the
record to support the allegation of improper service of the four trial subpoenas by
which appellees had misled the 429th Court. CR.9.
(iii) RULES 176.6 AND 176.7 AUTHORIZE PROTECTIVE ORDERS AGAINST THE PARTY CAUSING THE SUBPOENA TO ISSUE AND NOT THE PARTY’S ATTORNEY
The 429th Court abused her discretion by entering judgment against appellant
when appellant is not a party to any litigation and only serves as attorney for the
Browns, who are the parties at the 193rd. CR.95 (1)-(9), (11)-(14), 16), CR.97-99,
CR.42. While Rule 176.6 requires compliance with a subpoena unless discharged by
the court or by the party summoning such witness, Rule 176.7 imposes a
responsibility on the party causing a subpoena to issue to take reasonable steps to
avoid imposing undue burden or expense on the person served. Tex. R. of Civ. P.
176.6(a) and 176.7.
APPELLANT’S AMENDED BRIEF Page 45 of 77 In both rules, compliance is required on behalf of the party, here the Browns, and
responsibility is imposed on the party, and not on the attorney for the party. Id. Thus,
by entering “a protective order and award of sanctions against appellant” as “the
attorney who issued the four subpoenas”27 instead of the party causing the subpoena
to issue, the 429th exceeded her protective order authority under Rule 176.6(f) and
176.7 by quashing the 193rd Court’s trial subpoenas, which are court orders. In re
J.M., No. 14-24-00478-CV (Tex. App.—Houston [14th Dist.] 2024, opinion
delivered October 15, 2024) (identifying subpoenas as court orders per Black’s Law
Dictionary28 and citing Rule 176.3(b) TRCP for the proposition that only discovery
subpoenas and limited by the need for compliance with the rules governing
discovery).
The Houston Appeals Court’s reading of Rule 176.3’s limitations regarding
discovery subpoenas being the only subpoenas limited by the rules governing
discovery, tracks with the rules specificity about the response required for trial
subpoenas providing: “Trial Subpoenas. A person commanded to attend and give
testimony or to produce documents or things, at a hearing or trial, may object or
move for protective order before the court at the time and place specified for
27 CR.95. 28 “Subpoena is defined as “[a] writ or order commanding a person to appear before a court or other tribunal, subject to a penalty for failing to comply.” Black's Law Dictionary (12th ed. 2024).” In re J.M., No. 14-24-00478-CV (Tex. App.— Houston [14th Dist.] 2024, opinion delivered October 15, 2024
APPELLANT’S AMENDED BRIEF Page 46 of 77 compliance, rather than under paragraphs (d) and (e)” as those paragraphs apply to
discovery subpoena responses. Tex. R. Civ. P. 176.7; and see In re J.M., No. 14-24-
00478-CV (Tex. App.— Houston [14th Dist.] 2024, opinion delivered October 15,
2024 (distinguishing trial subpoena from discovery subpoena).
Juxtaposing Rule 176.6(a)’s requirement for compliance until discharge by the
court or the party with Rule 176.6(f)’s requirement for any protective order move to
be made before the court at the time and place specified for compliance, with Rule
176.7’s imposition of the duty on the party to avoid imposing undue burden or
expense on the person served, it is clear that the subpoena provisions under Rule
176 as they relate to trial subpoena require any judgment in a protective order claim
to be imposed on the party causing the subpoena to issue and not on the party’s
attorney. Tex. R. Civ. P. 176.6(a), 176.6(f), 176.7.
Further, Rule 176.6(f) places jurisdiction over trial subpoena squarely with the
issuing court as the court of the place specified for compliance. Tex. R. Civ. P. Being
that the subject matter of the protective order are four trial subpoenas, Rule 176.6(f)
deprived the 429th Court of subject matter jurisdiction not only over the 193rd’s trial
subpoena but prevented the 429th Court from issuing a protective order judgment
against appellant being an attorney for parties in another court. R. 176.6(a) and (f),
R. 176.3 and R. 176.7.CR. Permitting any other interpretation would be authorize a
district court in one jurisdiction to issue protective order judgments against anyone
APPELLANT’S AMENDED BRIEF Page 47 of 77 who can issue a subpoena rather than on the party causing the subpoena to issue
under Rule 176.4 including, the 193rd District Court clerk, like the 429th court has
done against appellant, an attorney authorized to practice law and who acted as an
officer of the court. Tex. R. Civ. P. 176.4(a) and (b); CR.99.
Permitting the 429th court in Collin County to exercise subject matter jurisdiction
over a jury trial subpoena issued by the 193rd district court in Dallas County
interferes greatly with the 193rd Court’s authority to require witnesses to attend trial
if the witness resides within 150 miles of the courthouse of the county in which the
suit is pending or if the witness may be found within such distance at the time of
trial. In re FedEx Ground Package Sys., Inc., 609 S.W.3d 153, 159–60 (Tex. App.—
Houston [14th Dist.] 2020, orig. proceeding) (emphasis added) (citing Dr. Pepper v.
Davis, 745 S.W.2d 470, 471 (Tex. App.—Austin 1988, orig. proceeding)) (holding
that “A trial court has the authority to require a witness, including a party or an
officer of a party, to attend trial if the witness resides within 150 miles of the
courthouse of the county in which the suit is pending or if the witness may be found
within such distance at the time of trial.”).
Being the trial court, (1) the 193rd court is the only court that has the authority to
command a witness’s attendance at a trial in the 193rd court and therefore the court
with exclusive jurisdiction over trial subpoenas issuing from the 193rd court as the
place specified for compliance to the exclusion of the 429th and (2) any protective
APPELLANT’S AMENDED BRIEF Page 48 of 77 orders should be issued against the parties and not appellant, as the Browns’ attorney
otherwise the goal, as here, would simply be to intimidate the attorney into
withdrawing from representing that party and denying the party, their attorney of
choice. Rule 176.6(f) and 176.6(a) and 176.7 Tex. R. Civ. P.; In re FedEx Ground
Package Sys., Inc., 609 S.W.3d at 159–60. The judgment should be reversed for
want of jurisdiction. CR.99.
C. THERE IS INSUFFICIENT EVIDENCE TO SUPPORT THE PROTECTIVE ORDER AS TO PRIVILEGE
The 429th Court lacked jurisdiction and abused its discretion by granting the
motion for protective order on privilege grounds based solely on the conclusory
assertion that the trial subpoena was requesting the same information as the
unspecified information or records addressed by the AG’s rulings opinions when the
rulings command the release of the basic information, do not identify the requestor
or show that the Browns were requesting the information or records which form the
subject matter of those opinions and no evidence was offered to show that those
opinions relate to the trial subpoena. CR.21-26 but see CR.47.
Under Texas Law, a trial court’s actions denying discovery is reviewed for
abuse of discretion. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d
913,917 (Tex. 1991). A trial court abuses its discretion when it reaches a decision so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Joe
v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). A party may APPELLANT’S AMENDED BRIEF Page 49 of 77 obtain discovery regarding any matter that is not privileged and is “relevant to the
subject matter” of the pending action. Tex. R. Civ. P. 192.3. The phrase “relevant to
the subject matter” is to be “liberally construed to allow the litigants to obtain the
fullest knowledge of the facts and issues prior to trial.” Axelson, Inc. v. McIlhany,
798 S.W.2d 550, 553 (Tex. 1990). A less deferential standard applies to a trial court’s
determination of the legal principles governing discovery. In re Memorial Herman
Hosp. Sys., 464 S.W.3d 686, 698 (Tex. 2015, orig. proceeding) (citing Walker, 827
S.W.2d at 840).
When granting a protective order, the trial judge may exercise some
discretion, but that discretion is not without bounds. In re Collins, 286 S.W.3d 911,
919 (Tex. 2009) (orig. proceeding). Asserting that the trial subpoena was a discovery
subpoena, Appellee brought its motion for protective order under Rule 176.6(e)
rather than 176.6(f) and relied on Rule 192.6(b) as the basis for the 429th court’s
jurisdiction. CR.9 but see CR.47. Rule 192 authorizes a person from whom
discovery is sought to move for an order protecting that person from the discovery
sought. Tex. R. Civ. P. 192.6(a). Nothing, in the record in this case indicates that the
trial subpoenas at issue were seeking discovery from the witnesses who were served
with trial subpoenas only. CR.47, 53, 59, 64.
Though Rule 192.6 does not apply to trial subpoenas, assuming arguendo that
trial subpoenas are discover requests the party who seeks to limit discovery by
APPELLANT’S AMENDED BRIEF Page 50 of 77 asserting a privilege has the burden of proof. In re E.I. DuPont De Nemours and Co.,
136 S.W.3d at 223 citing Jordan v. Fourth Court of Appeals, 701 S.W.2d 644, 648-
649 (Tex. 1985). A party asserting privilege in opposition to a claimed discovery
request must establish by testimony or affidavit a prima facie case for privilege. In
re National Lloyds Ins. Co., 532 S.W.3d 794, 804 (Tex. 2017, orig. proceeding).
There is no presumption that documents are privileged. In re E.I. DuPont De
Nemours and Co., 136 S.W.3d at 225.
It is only when a party asserting a privilege has made a prima facie case for
its claim that the requesting party has the burden to point out to the court which
specific documents or groups of documents it believes require inspection. In re E.I.
DuPont De Nemours and Co., 136 S.W.3d at 226. Even when an affidavit is
tendered, it is of no probative value if it merely presents global allegations that
documents come within the asserted privilege. In re E.I. DuPont De Nemours and
Co., 136 S.W.3d at 224, citing Ryals v. Canales, 767 S.W.2d 226, 229 (Tex. App.—
Dallas 1989, orig. proceeding). The party seeking a protective order must show
particular, specific and demonstrable injury by facts sufficient to justify a protective
order. In re Collins, 286 S.W.3d 911, 919 (Tex. 2009) (orig. proceeding).
Even when the appellant “did not object to the lack of evidence in the trial
court”, it is well-settled that the argument of counsel is not evidence. Grant v.
Espiritu, 470 S.W.3d 198, 203 (Tex. App.—El Paso 2015, no pet.). A trial court
APPELLANT’S AMENDED BRIEF Page 51 of 77 cannot exercise its discretion in the absence of evidence. Grass v. Golden, 153
S.W.3d 659, 663 (Tex. App.—Tyler 2004, orig. proceeding) (a trial court abuses its
discretion when it limits discovery in the absence of substantiating evidence in the
record).
When the party seeking a protective order fails to specifically show how the
parties rights were being invaded, nor to show a particular, specific, and
demonstrable injury by facts sufficient to justify a protective order that party fails to
meet their burden to establish a protective order was necessary to provide protection
under the provisions of Rule 192.6(b) and a trial court abuses its discretion in
granting such a motion for protective order. In re K.L. & J. Ltd P’ship, 336 S.W.3d
286, 294 (Tex. App.—San Antonio, 2010) (orig. proceeding).
On the record before this court, there is simply no evidence of a particular,
specific and demonstrable injury by facts sufficient to justify a protective order. In
re Collins, 286 S.W.3d at 919. The AG’s opinion letters attached as evidence of a
privilege claim is insufficient to make a prima facie claim because it is conclusory
and not binding on the court. CR.21-26. An objection that evidence is conclusory is
an objection to the substance of the evidence that can be raised for the first time on
appeal. City of Wilmer v. Laidlaw Waste Sys., Inc., 890 S.W.2d 459, 467 (Tex.
App.—Dallas 1994), aff’d, 904 S.W.2d 656, 660-61 (Tex. 1995).
APPELLANT’S AMENDED BRIEF Page 52 of 77 The 429th Court’s sole basis for finding privilege, is those four copies of the
AG’s letter rulings which constitute conclusory evidence in this matter because, they
do not identify the information or records to be withheld, who the requestors are,
whether the information or records which is the subject matter of the opinions is the
same as the testimony required by the trial subpoena in this case, and expressly issue
a caveat that “this letter ruling is limited to the particular information at issue in this
request and limited to the facts as presented to the us, therefore the ruling must not
be relied upon as a previous determination regarding any other information or any
other circumstances.” CR.24, 26; CR.95. Appellees offered no testimony or
affidavits to substantiate the AG’s rulings in the form of the open records requests
referenced therein, a privilege log, or even tender of the documents for in camera
inspection by the 429th. CR.7-89, RR, 2RR, 3RR.
With no other evidence before it, the 429th presumed that the AG’s limited
ruling was evidence that all Collin County law enforcement records are not subject
to public release and thus privileged. CR.95(7); In re E.I. DuPont De Nemours and
Co., 136 S.W.3d 218, 225 (Tex. 2004, orig. proceeding) (holding that there is no
presumption that documents are privileged). This was harmful error because
“[p]leading and producing evidence establishing the existence of a privilege is the
burden of the party seeking to avoid discovery” and because the right to evidence is
important, “privileges must be strictly construed” hence with argument of counsel
APPELLANT’S AMENDED BRIEF Page 53 of 77 and the AG’s letter rulings being the only support for the 429th court’s finding, there
was insufficient evidence on the record to support a finding of privilege. In re
Memorial Herman Hosp. Sys., 464 S.W.3d at 695 and 698.
In In re Herman, the Texas Supreme Court held that the party asserting the
privilege needs to produce only the minimum quantum of evidence necessary to
support a rational inference that the allegation of fact is true and tender the
documents to the court, at which point the court must conduct an in camera
inspection of the documents or information before deciding the question of privilege.
In re Memorial Herman Hosp. Sys., 464 S.W.3d at 698. Here, the AG’s opinion
rulings negated the broad privilege ruling of the 429th Court because in each opinion
ruling upon which the 429th relied, the AG expressly ordered the release of the basic
information pursuant to §552.108(c), Texas Gov’t Code making that information not
privileged. CR.21, 22; CR.95(7).
The record shows no testimony or affidavit offered to support the claim of
privilege and no documents tendered for in camera inspection by the 429th hence
Appellees had failed to make a prima facie case for a protective order to be issued
on privilege grounds. In re Memorial Herman Hosp. Sys., 464 S.W.3d at 698. Hence,
while the 429th acted differently than other courts in Texas by granting the protective
order based on the presumption that the AG’s opinion rulings are binding, “Texas
courts generally give due consideration to AG decisions because the Legislature has
APPELLANT’S AMENDED BRIEF Page 54 of 77 directed the AG to determine whether records must be disclosed under the Public
Information Act, but those opinions are not binding.” Austin Bulldog v. Leffingwell,
490 S.W.3d 240, 250 (Tex. App.—Austin 2016, no pet.).
The 429th failed to require actual evidence of privilege in the form of
affidavits or testimony, at the minimum, along with the open records requests
referenced in her finding that would have identified the requested information
foreclosed by the AG’s opinions, or at least a privilege log identifying the
information sought to be withheld along with an in camera inspection of the
documents in order to arrive at the conclusion that the information was privileged.
In re Memorial Herman Hosp. Sys., 464 S.W.3d 686, 698 (Tex. 2015, orig.
proceeding) (“[t]he party asserting the privilege must establish by testimony or
affidavit a prima facie case for the privilege.”).
Even when the appellant “did not object to the lack of evidence in the trial
court”, it is well-settled that the argument of counsel is not evidence. Grant v.
Espiritu, 470 S.W.3d 198, 203 (Tex. App.—El Paso 2015, no pet.). A trial court
cannot exercise its discretion in the absence of evidence. Grass v. Golden, 153
S.W.3d 659, 663 (Tex. App.—Tyler 2004, orig. proceeding) (a trial court abuses its
discretion when it limits discovery in the absence of substantiating evidence in the
APPELLANT’S AMENDED BRIEF Page 55 of 77 Because AG’s opinions are not binding on a court and argument of counsel is
not evidence, the 429th was still required to receive evidence establishing privilege
by affidavit or testimony with tender of the records for in camera viewing before
granting a protective order on grounds of privilege, and the record before this court
contains no affidavits or testimony or tender of the records for in camera viewing
leaves the court with no option but to deny the motion for protective order. In re
Memorial Herman Hosp. Sys., 464 S.W.3d at 698 and In re E.I. DuPont De Nemours
and Co., 136 S.W.3d at 223.
Further, the party seeking a protective order must show particular, specific
and demonstrable injury by facts sufficient to justify a protective order. In re
Collins, 286 S.W.3d 911, 919 (Tex. 2009) (orig. proceeding). The record does not
contain even a scintilla of evidence to show particular, specific or demonstrable
injury sufficient to justify a protective order and there are no findings to that effect
hence the 429th abused her discretion by granting the motion for protective order
without evidence. Id.; and see the CR.1-111. Thus, even without appellant’s
objection at the 429th Court, appellees, having tendered no evidence to meet their
burden of establishing a prima facie case for privilege, the 429th Court abused its
discretion by granting the motion for protective order. In re E.I. DuPont De Nemours
and Co., 136 S.W.3d at 223; Grass, 153 S.W.3d at 663. City of Wilmer, 904 S.W.2d
at 660-61; CR.21-26, 95(7).
APPELLANT’S AMENDED BRIEF Page 56 of 77 D. THE PROCEDURES UNDER TEX. CIV. PRAC. & REM. CODE. §30.006 DO NOT APPLY TO TRIAL SUBPOENA
Even though trial subpoenas are not limited by the rules governing discovery,
the 429th court found that appellant had failed to follow the discovery procedures
under Texas Civil Practice and Remedies Code Chapter 30 with no evidence to
support the finding and thereby abused its discretion by relying solely on Davis’s
arguments.29 Tex. R. Civ. P. 176.3(b); CR.96(8); CR.47. In general, matters of
statutory construction are questions of law that appellate courts review de novo.
Railroad Comm'n v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d
619, 624 (Tex.2011). “Specifically, whether information is subject to the [Public
Information] Act and whether an exception to disclosure applies to the information
are questions of law.” City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357
(Tex.2000) (plurality op.). The burden is on the party asserting a privilege from
discovery to produce evidence concerning the applicability of a particular privilege.
C.G. Giffin v. The Honorable R.L. Smith, 688 S.W.2d 112 (Tex.1985). Our primary
concern is the express language. Galbraith Eng'g Consultants, Inc. v. Pochucha, 290
S.W.3d 863, 867 (Tex.2009). We apply the plain meaning of the text unless a
different meaning is supplied by legislative definition or is apparent from the context
29 CR.11. APPELLANT’S AMENDED BRIEF Page 57 of 77 or the plain meaning leads to absurd results. Marks v. St. Luke's Episcopal Hosp.,
319 S.W.3d 658, 663 (Tex.2010).
Applying the plain meaning of the text, with respect to the discovery subpoena
requirements claimed by appellees’ in Chapter 30, §30.006(c) limits a court in civil
matter’s ability to order discovery from a nonparty law enforcement agency of
information 30 if the information deals with an investigation by the nonparty law
enforcement agency that does ot result in conviction or deferred adjudication and the
release of the information would interfere with the detection, investigation, or
prosecution of criminal acts. Tex. Civ. Prac. & Rem. Code §30.006(c)(1)(B) and (2).
Applying the plain meaning of the text which uses the conjunctive “and” in
this provision, as the party with the burden of proof, a nonparty law enforcement
agency that resists discovery hereunder must base the resistance on the two-pronged
test by establishing not only that the information or records deal with an
investigation that does not result in conviction or deferred adjudication but must also
show that the release of the information or records would interfere with the detection,
investigation, or prosecution of criminal acts. Tex. Civ. Prac. & Rem. Code
§30.006(c)(1)(B) and (2); C.G. Giffin, 688 S.W.2d 112.
30 information, records, documents, evidentiary materials, and tangible things
APPELLANT’S AMENDED BRIEF Page 58 of 77 Appellees’ motion for protective order does not even pretend to meet the two-
pronged test and only relies on the first prong, to wit, an investigation by the
nonparty law enforcement agency that does not result in conviction or deferred
adjudication. CR.11; C.G. Giffin, 688 S.W.2d 112. Even though the entire provision
is set out in the motion for protective order, appellee’s counsel does not even argue
that the release of the information or records would interfere with the detection,
investigation, or prosecution of criminal acts. CR.11; Tex. Civ. Prac. & Rem. Code
§30.006(c)(2).
Having failed to meet this threshold requirement for resisting discovery under
§30.006(c) which would have triggered the need for a party seeking discovery by
subpoena pursuant to Tex. R. Civ. P. 176.3(b) to move for a discovery order to issue
under §30.006(d), §30.006(c) does not apply to these proceedings. Tex. Civ. Prac.
& Rem. Code; C.G. Giffin, 688 S.W.2d 112. This is more so, when the trial
subpoenas issued in this case are not discovery subpoenas and therefore not limited
by the rules governing discovery. Tex. R. Civ. P. 176.3(b).
Davis’s assertion in the heading that “Section 30.006(c) precludes Subpoena
is unsubstantiated even in the motion and was merely a misleading label. CR.11.
Davis argued, that by improper use of a Subpoena, appellant seeks through witness
testimony release of records without complying with §30.006(d) procedures31
31 CR.11, citing Tex. Civ. Prac. & Rem. Code §30.006. APPELLANT’S AMENDED BRIEF Page 59 of 77 disregarding the facts that (1) appellant is not a party and does not seek witness
testimony and (2) the subpoenas at issue in this case are trial subpoenas which are
not subject to the rules governing discovery like discovery subpoenas. Tex. R. Civ.
P. 176.3(b).
Since (1) appellant is not a party, (2) the trial subpoenas are not discovery
subpoena issued during discovery, (3) appellees failed to meet their burdens under
the two-pronged test in Tex. Civ. Prac. & Rem. Code §30.006(c), the procedures
under §30.006(d) do not apply to appellant and do not apply to trial subpoenas
pursuant to Tex. R. Civ. P. 176.3(b), and the 429th abused its discretion by finding
that appellant, rather than the party, failed to follow the procedures under Chapter
30, Tex. Civ. Prac. & Rem. Code. CR.96(8).
E. THERE IS INSUFFICIENT EVIDENCE ON THE RECORD TO SUPPORT THE FINDING OF UNDUE BURDEN, EXPENSE AND HARASSMENT
The 429th abused its discretion by finding that appellant, who is not a party,
did not take reasonable steps to avoid imposing undue burden or expense on the
officers when there is no evidence on the record to support the finding. CR.96(9);
R.176.7. When granting a protective order, the trial judge may exercise some
discretion, but that discretion is not without bounds. In re Collins, 286 S.W.3d at
919.
Rule 176 requires a party, causing a subpoena to issue to take reasonable steps
to avoid imposing undue burden or expense on the person served. Tex. R. Civ. P. R. APPELLANT’S AMENDED BRIEF Page 60 of 77 176.7. In ruling on motion for protection, the court must provide a person served
with subpoena an adequate time for compliance, protection from disclosure of
privilege material or information, and protection from undue burden or expense. Id.
The Court may impose reasonable conditions on compliance with a subpoena,
including compensating the witness for undue hardship. Id. However, "[a] party
seeking a protective order `must show particular, specific and demonstrable injury
by facts sufficient to justify a protective order." In re Collins, 286 S.W.3d at
919 (quoting Masinga v. Whittington, 792 S.W.2d 940, 940 (Tex. 1990)).
Citing Tex. R. Civ. P. 176.7, Davis asserted without any evidence that the
issuance of the four trial subpoenas was an “ongoing request to essentially continue
to harass Collin County law enforcement officers…for information [albeit through
the testimony of four Law Enforcement Officers] which the AG has repeatedly
advised is not subject to public disclosure.” CR.8. Davis then concluded that the four
trial subpoenas should be quashed, a protective order issue and Collin County
reimbursed for its attorney’s fees and costs associated with the instant motion. CR.8.
Later on, in the same motion, Davis then asserted that because Tex. R. Civ. P.
192.6(b) cited in 176.6(e) entitled the court to protect the movant from undue burden,
unnecessary expense, harassment, annoyance, or invasion of personal,
constitutional, or property rights, movants were entitled to have a Protective Order
be issued so that they are not harassed or annoyed by subpoenas seeking to force
APPELLANT’S AMENDED BRIEF Page 61 of 77 them to appear in Dallas County, disclose privileged law enforcement information
and also subject them to unnecessary disruption from their duties. CR.13-14.
However, no affidavit was attached to the motion showing how the trial
subpoenas were unduly burdensome, or how they caused unnecessary expense,
harassment, annoyance, or invasion of personal constitutional, or property rights.
CR.7-74; but see In re Collins, 286 S.W.3d at 919 ("[a] party seeking a protective
order `must show particular, specific and demonstrable injury by facts sufficient to
justify a protective order.").
At the hearing, no testimony was introduced showing how the trial subpoenas
were unduly burdensome, or how they caused unnecessary expense, harassment,
annoyance, or invasion of personal constitutional, or property rights. Reporter’s
entire record showing no factual testimony or tender; In re Collins, 286 S.W.3d at
919. Thus, even when as here, the appellant “did not object to the lack of evidence
in the trial court”, it is well-settled that the argument of counsel is not evidence.
Grant v. Espiritu, 470 S.W.3d 198, 203 (Tex. App.—El Paso 2015, no pet.). A trial
court cannot exercise its discretion in the absence of evidence. Grass v. Golden, 153
S.W.3d 659, 663 (Tex. App.—Tyler 2004, orig. proceeding). In In re Berrenberg,
the appellate court was faced with a record devoid of evidence of undue hardship
during the Covid19 pandemic and held that the trial court erred in reaching the
conclusion without evidence on the record, that travelling for a deposition would
APPELLANT’S AMENDED BRIEF Page 62 of 77 impose undue hardship on the movant. In re Berrenberg, 605 S.W.3d 922, 927 (Tex.
App.—El Paso 2020, orig. proceeding) (holding that “based on the record before us,
there is insufficient evidence to support a finding of undue hardship or unnecessary
expense for the deposition of Real Party in Interest to take place outside of the county
of suit).
Similarly, in In re Wal-Mart Stores, Inc., the appellate court found that Wal–
Mart did not present evidence establishing a particular, specific, and demonstrable
injury by facts sufficient to justify a protective order. In re Wal-Mart Stores, Inc.,
545 S.W.3d 626, 636-37 (Tex. App.—El Paso, 2016)(orig. proceeding) (holding that
because Wal–Mart failed to meet its burden of establishing that a protective order
was necessary, the trial court did not abuse its discretion by denying the request for
a protective order); and see In re K.L. & J. Ltd. Partnership, 336 S.W.3d at 293
(holding that a trial court abused its discretion by granting the motion for protective
order where the party failed to make the required showing in the trial court).
Without evidence of the alleged undue burden, unnecessary expense,
harassment, annoyance, or invasion of personal constitutional, or property rights on
the record, the 429th abused its discretion in finding that appellant did not take
reasonable steps to avoid imposing undue burden or expense and the protective order
should be reversed on this ground. In re Collins, 286 S.W.3d at 919; In re
APPELLANT’S AMENDED BRIEF Page 63 of 77 Berrenberg, 605 S.W.3d at 927; In re Wal-Mart Stores, Inc., 545 S.W.3d at 636-37;
and In re K.L. & J. Ltd. Partnership, 336 S.W.3d at 293.
PART II: THE ORDER FOR SANCTIONS IS UNWARRANTED
A. STANDARD OF REVIEW
Appellate courts review a trial court’s sanctions order for abuse of discretion.
Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). A trial court abuses its
discretion if it acts without reference to guiding rules and principles such that the
ruling is arbitrary or unreasonable. Id. Although appellate courts view conflicting
evidence favorably to the court’s decision, the appellate court is not bound by the
trial court’s findings or conclusions of law and must review the entire record
independently to determine whether the trial court abused its discretion. Am. Flood
Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006). A decision lacking factual
support is arbitrary and unreasonable and must be set aside. Goode v. Shoukfeh, 943
S.W.2d 441, 446 (Tex. 1997).
B. NO STATUTE OR RULE PERMITS THE RECOVERY OF ATTORNEY’S FEES IN THIS CASE
Texas follows the “American Rule,” which requires each party to pay its own
attorneys’ fees unless recovery is authorized by statute or contract. Rohrmoos
Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 484-85 (Tex. 2019).
Collin County was not entitled to seek an award of attorneys’ fees under Rule
192.6(b) because it is not a party to the suit at the 193rd or the 429th and because rule APPELLANT’S AMENDED BRIEF Page 64 of 77 192.6(b) does not expressly authorize an attorneys’ fees award to anyone. Rohrmoos
Venture, 578 S.W.3d at 484-85. In Texas, attorney’s fees may not be recovered from
an opposing party unless such recovery is provided for by statute or by contract
between the parties. Dallas Central Appraisal Dist. v. Seven Investment Co., 835
S.W.2d 75, 77 (Tex.1992); New Amsterdam Cas. Co. v. Texas Indus., 414 S.W.2d
914, 915 (Tex.1967). The authorization of attorney’s fees in civil cases may not be
inferred; rather it “must be provided for by the express terms of the statute in
question.” First City Bank—Farmers Branch v. Guex, 677 S.W.2d 25, 30
(Tex.1984).
Even when fee shifting statutes apply, they are strictly construed. Knebel v.
Capital Nat’l Bank in Austin, 518 S.W.2d 795, 804 (Tex. 1974) (citing Van Zandt v.
Fort Worth Press, 359 S.W.2d 893 (Tex. 1962) (“Statutory provisions for the
recovery of attorney’s fees are in derogation of the common law, are penal in nature
and must be strictly construed”). There is no statute which authorizes recovery of
attorney’s fees under the circumstances of this case. See Rule 192.6 (b); CR.14.
Thus, were the subpoenas in question discovery subpoenas instead of trial
subpoenas, while Rule 192.6(b) would permit a court to issue an order that discovery
not be sought in whole or in part, be limited, not be undertaken at a time or place
specified, by such method and circumstances as the court sets amongst other
APPELLANT’S AMENDED BRIEF Page 65 of 77 possibilities, it does not permit the court to award attorney’s fees. Tex. R. Civ. P. R.
192.6(b)(1)-(5).
Appellees were not entitled to seek attorney’s fees under Rule 192.6(b) because
Texas follows the “American Rule,” which requires each party to pay its own
attorneys’ fees unless recovery is authorized by statute or contract, and Rule 192.6(b)
does not expressly authorize the award of attorney’s fees. Rohrmoos Venture, 578
S.W.3d at 484-85.
C. NO EVIDENCE OF BAD FAITH AND SIGNIFICANT INTEFERENCE WITH A CORE JUDICIAL FUNCTION OF THE COURT
Appellant did not engage in any conduct in bad faith that significantly
interfered with a core judicial function of the 429th Court. “Various rules and statutes
imbue courts with authority to sanction attorneys” and parties. Brewer v. Lennox
Hearth Prods., LLC, 601 S.W.3d 704, 717–18 (Tex. 2020). “A court's inherent
authority includes the ‘power to discipline an attorney's behavior.” Id. at 718
(quoting In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997)). The inherent authority to
sanction is not boundless and is limited by due process, so sanctions must be just
and not excessive. In re Bennett, 960 S.W.2d at 40.
Because inherent powers are shielded from direct democratic controls, and
because of their very potency, inherent powers must be exercised with restraint,
discretion, and great caution. Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d
717–18 citing Roadway Exp., Inc. v. Piper, 447 U.S. 752, 764 (1980); Chambers v. APPELLANT’S AMENDED BRIEF Page 66 of 77 NASCO, Inc., 501 U.S. 32, 44 (1991) Chambers, 501 U.S. at 43. To that end,
invocation of the court’s inherent power to sanction necessitates a finding of bad
faith. Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 717–18 citing Roadway
Exp., 447 U.S. at 767.
With the understanding that inherent powers must be used sparingly, appellate
courts have consistently held that a court’s inherent power to sanction “exists to the
extent necessary to deter, alleviate, and counteract bad faith abuse of the judicial
process.” Dike v. Peltier Chevrolet, Inc., 343 S.W.3d 179 (Tex. App.—Texarkana
2011, no pet.); McWhorter v. Sheller, 993 S.W.2d 781 (Tex. App.—Houston [14th
Dist.] 1999, pet. denied); Onwuteaka v. Gill, 908 S.W.2d 276, 280 (Tex. App.—
Houston [1st Dist.] 1995, no writ); Kutch v. Del Mar Coll., 831 S.W.2d 506, 510
(Tex. App.—Corpus Christi 1992, no writ).
Some courts have further articulated, as an additional requirement, that the
conduct complained of significantly interfered with the court’s legitimate exercise
of one of its traditional core functions. Kennedy v. Kennedy, 125 S.W.3d 14, 19 (Tex.
App.—Austin 2002, pet. denied) (party’s actions subjected her to contempt of court
but not sanctions under a statute or rule, or even under the court’s inherent power to
sanction for abuse of the judicial process, which requires evidence and findings of
significant interference with core judicial functions (citing Kutch, 831 S.W.2d 506,
APPELLANT’S AMENDED BRIEF Page 67 of 77 510 (Tex. App.—Corpus Christi 1992, no writ), which articulates bad faith as a
predicate to inherent-authority sanctions)).
“Bad faith” includes “conscious doing of a wrong for a dishonest,
discriminatory, or malicious purpose.” Brewer v. Lennox Hearth Prods., LLC, 601
S.W.3d 717–18 citing ; Zuehl Land Dev., LLC v. Zuehl Airport Flying Cmty. Owners
Ass’n, Inc., 510 S.W.3d 41, 53 (Tex. App.—Houston [1st Dist.] 2015, no pet.);
Robson v. Gilbreath, 267 S.W.3d 401, 407 (Tex. App.—Austin 2008, pet. denied).
Errors in judgment, lack of diligence, unreasonableness, negligence or even gross
negligence—without more—do not equate to bad faith. Brewer v. Lennox Hearth
Prods., LLC, 601 S.W.3d 718-19. Improper motive, not perfection is the touchstone.
Zuehl Land Dev., LLC, 510 S.W.3d at 54; Dike v. Peltier Chevrolet, Inc., 343 S.W.3d
at 194; Cosgrove v. Grimes, 774 S.W.2d 662, 664-65 (Tex. 1989) (good-faith
defense to a legal malpractice action is governed by an objective inquiry: “An
attorney who makes a reasonable decision in the handling of a case may not be held
liable if the decision later proves to be imperfect.”).
A case illustrative of bad faith is the attorney misconduct in In re Bennet,
which involved an attorney’s plan to deliberately circumvent rules implementing
random assignment of cases in the district courts. 960 S.W.2d 35, 36-37 (Tex. 1997).
The attorney sequentially filed seventeen lawsuits with the same factual allegations
and the same legal claims against the same defendants, but with different plaintiff
APPELLANT’S AMENDED BRIEF Page 68 of 77 groups receiving random assignments, and each time, instructing the clerk of court
not to prepare citation for the first sixteen filings. Id. Mere hours after securing
assignment to a particular judge for the seventeenth lawsuit, plaintiffs’ counsel
amended the petition in that case to add approximately seven hundred plaintiffs and
then attempted to nonsuit the sixteen previously filed lawsuits. Id.
The court that was first randomly assigned, sanctioned plaintiffs’ counsel for
knowingly and intentionally violating rules providing for random assignment under
the court’s inherent jurisdiction upon Plaintiffs’ counsel admitting to gaming the
system to ensure assignment to a particular court when such activities were expressly
prohibited. Id. Counsel’s conduct in In re Bennett was a clear abuse of the process
of random assignment of cases which, if tolerated, breeds disrespect for and
threatens the integrity of the judicial system. Id.
Thus, the decision to impose sanctions involves two distinct determinations:
(1) whether conduct is sanctionable and (2) what sanction to impose. In re Bennett,
960 S.W.2d 35, 39 (Tex. 1997) (sanctioning counsel requires the court to determine
whether the attorney has abused the judicial process and what sanction is
appropriate). An error, without more, is no evidence of improper motive, unless the
conduct could not have occurred without conscious wrongdoing. McWhorter v.
Sheller, 993 S.W.2d 781 (Tex. App.—Houston [14th Dist.] 1999, pet. denied);
Onwuteaka v. Gill, 908 S.W.2d at 280 (Tex. App.—Houston [1st Dist.] 1995, no
APPELLANT’S AMENDED BRIEF Page 69 of 77 writ). While the absence of authoritative guidance is not a license to act with
impunity, bad faith is required to impose sanctions under the court’s inherent
authority. In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997).
A court cannot invoke its inherent power to sanction without some evidence
and factual finding that the conduct complained of significantly interfered with the
court’s legitimate exercise of one of its traditional core functions. Kennedy v.
Kennedy, 125 S.W.3d at 19. A decision lacking factual support is arbitrary and
unreasonable and must be set aside. Goode, 943 S.W.2d at 446.
In this case, the 429th Court invoked its inherent jurisdiction against appellant
for allegedly engaging in “a series of behavior constituting bad faith abuse of the
judicial process and interference with the Court’s traditional core functions.” CR.96
(14). The first behavior in question is that Appellant allegedly “sought to subjugate
and thwart” the 429th Court’s jurisdiction and authority over the pending motion for
protective order which the Browns dispute because the subpoena in question are trial
subpoenas which the Browns believe falls within the jurisdiction of the 193rd Court
and not the 429th pursuant to Tex. R. Civ. P. 176.6(f) when read in conjunction with
Rule 176.6(a). CR.96 (14); CR.42-70. There is, however, no actual evidence of an
attempt to subjugate and thwart the 429th Court’s jurisdiction rather, there was a
genuine conflict between the 193rd Court’s jurisdiction and the 429th Court’s
jurisdiction based on the reading of Rules 176.6(a), 176.6(f) and 176.8, and
APPELLANT’S AMENDED BRIEF Page 70 of 77 appellant, appearing before the 429th Court could have waived the jurisdictional
issues being asserted by the Browns, for whom appellant is an advocate and not a
party. Tex. R. Civ. P. Cosgrove v. Grimes, 774 S.W.2d at 664-65; Dike, 343 S.W.3d
at 191. Further, there is no evidence of bad faith abuse of the judicial process by
appellant and no evidence that the dispute in jurisdiction between the 193rd Court
and the 429th Court significantly interfered with the 429th court’s traditional core
functions. Kennedy, 125 S.W.3d at 19.
The second allegation is that appellant attempted to serve movants with new
subpoenas when there was a pending Motion to Quash and for Protective Order in
the 429th Court yet other than argument of counsel and counsel’s self-serving emails,
there is no evidence on record of any attempt to serve any new subpoenas.
CR.96(14)(1); but see CR.27-74 (showing no new subpoenas or affidavits
confirming attempts to be served with new subpoenas). Even though the court
received no evidence or factual support for this allegation, the court sanctioned
appellant for the conduct anyway under the court’s inherent jurisdiction. Goode, 943
S.W.2d at 446.
The third allegation is that between opposing attorneys feuding over the
jurisdictional issue of whether the 429th has jurisdiction or the 193rd, Davis implied
that only an order of the 429th court would make them comply with the trial
subpoenas hence appellant’s informing Davis that there was no protective order yet
APPELLANT’S AMENDED BRIEF Page 71 of 77 and that disobedience of a motion to compel “may” result in the officers being
escorted into court by court order was presented to the 429th Court to skew32 that
court’s view of appellant and formed the basis for the sanctions. CR.79. This is
especially so, when trial subpoena carried the warning required by Rule 176.8(a) on
the face of subpoena by Rule 176.1(g), Tex. R. Civ. P. CR.79. There is no evidence
of bad faith abuse of the judicial process that significantly interfered with the 429th
Court’s jurisdiction and no sanctionable conduct on appellant’s part. CR.79.
Kennedy, 125 S.W.3d at 19.
The fourth allegation is that appellant’s allegedly filing a Motion to Compel
movants in the Dallas District Court, which is the trial court, despite the 429th’s
alleged jurisdiction over the Trial Subpoenas served in Collin County was an attempt
to subjugate and thwart the 429th Court’s jurisdiction when, Appellant, not being a
party, acts only as advocate for the Browns and showed no bad faith in following
Rule 176.8, Rule 176.6(f) and Rule 176.6(a), which read together justifies the
Browns claim that the court with jurisdiction over the trial subpoenas is the 193rd
Court and not the 429th. CR.42-44. With this genuine dispute about which court has
jurisdiction over trial subpoenas, appellant did not engage in any bad faith conduct
in representing the Browns by filing the Browns’ Motion to Compel at the 193rd as
32 Appellees initially alleged without testimony or affidavits that appellant violated the no contact rule but dropped that claim in the Judgment signed by the 429th. CR.28. APPELLANT’S AMENDED BRIEF Page 72 of 77 the issuing trial court. Cosgrove v. Grimes, 774 S.W.2d at 664-65. And there is no
evidence of significant interference with any traditional core functions of the 429th
Court. Kennedy, 125 S.W.3d at 19. Further, filing one Motion to Compel in the
actual trial court for the case cannot come remotely close to being called bad faith
significant interference with any traditional core judicial functions of any court
especially when there is a genuine dispute about which court has jurisdiction over
the trial subpoenas. In re Bennet, 960 S.W.2d at 36-37.
The fifth allegation is that appellant was disingenuous and dilatory in her
service of her Motion to compel when the appellant is not the party and does not
have a motion to compel as that claim belongs to the Browns as the parties.
CR.96(14). The alleged claim of appellant being disingenuous and dilatory in
serving the Browns’ Motion to Compel is that appellant allegedly “represented in
the Certificate of Conference that appellant served a copy of the same on the
undersigned that same day” but did not. CR.30 And that it was not until December
1, 2024 that the “undersigned” received courtesy notification of the motion being
filed. CR.30. The Motion to Compel, however, does not contain a Certificate of
Conference at all hence the allegation was not supported by the record. CR.45.
If appellee was referring to the Certificate of Service, it asserts “simultaneous
efile.texascourts.gov e-service upon filing” and not that the undersigned was served
the same day. CR.45. The Courtesy Notification shows that the document was Efiled
APPELLANT’S AMENDED BRIEF Page 73 of 77 and Eserved on 11/28/2024 at 5:39AM. Since appellant does not work for the
efiletexas.gov efile system, and since appellee does not represent a party at the 193rd,
appellant has no knowledge or control over how or when an original submission is
received or when a file stamped copy, such as here, is sent to the parties and
nonparties. CR.71. In essence, there was no bad faith conduct and no attempt to be
disingenuous and dilatory in any service, because if anything, the fact that the
Courtesy Notification reached appellee’s counsel is proof that there was no improper
motive. Zuehl, 510 S.W.3d at 54; Dike v. Peltier Chevrolet, Inc., 343 S.W.3d 179,
194 (Tex. App.—Texarkana 2011, no pet.); Robson, 267 S.W.3d at 407.
Interestingly, Rule 176.6(e) on which appellee’s counsel relies in filing the
Motion for Protective Order and Supplement requires service on all parties in
accordance with Rule 21a. Tex. R. Civ. P. However, when Davis filed the
Supplement to Motion to Quash Subpoenas and Request for Issuance of Protective
Order, only appellant was served. CR.74. Davis’s error in claiming that the
Certificate of Conference contained a false representation when it does not, Davis’s
failure to serve all parties with the Supplement to the Motion for protective Order in
violation of the express requirement of Tex. R. Civ. P. 176.6(e), and notably Davis’s
failure to tender any evidence to support the motion for protective order did not
trigger the 429th to sanction Davis for bad faith abuse of the judicial process and
APPELLANT’S AMENDED BRIEF Page 74 of 77 interference with its traditional core functions. CR.28, 45, 74 and see CR.7-26 and
27-74 (showing no evidence to support any protective order issues).
No Show Cause Order was issued to compel appellant’s appearance and no
email on the record showing impropriety in being sent to the court, without which
this court cannot determine the impropriety in doing a bad faith and significant
interference analysis. CR.95(5)-(6). Non-appearance, to avoid waiving the Browns’
jurisdiction exception, may be construed as an error in judgment but it was not in
bad faith. Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 718-19.
Because errors in judgment, lack of diligence, unreasonableness, negligence,
or even gross negligence—without more—do not equate to bad faith, the
unsubstantiated findings of bad faith conduct of which appellant is accused are
insufficient to support the Sanctions against appellant and should be reversed. Id.
CONCLUSION
In conclusion, the judgment of the trial court should be reversed and the 193rd
Court declared the court with jurisdiction over the trial subpoenas issued from the
193rd Court pursuant to Tex. R. Civ. P. 176.6(f).
PRAYER
Appellant prays that this Court reverse the entire judgment of the 429th Court
and declare the 193rd Court, the court with jurisdiction over the trial subpoenas for
the case pending at the 193rd Court.
APPELLANT’S AMENDED BRIEF Page 75 of 77 Respectfully submitted,
/s/ Ugalahi Agbo Claire Offoboche Ugalahi Agbo Claire Offoboche State Bar No. 24068619 675 Town Square Blvd., Bldg. 1A, Ste. 200, Garland, TX 75040 Ph: 469-315-0358 Fax: 214-853-5708 ugy@uacoffobochelaw.com PRO SE ATTORNEY APPELLANT
APPELLANT’S AMENDED BRIEF Page 76 of 77 CERTIFICATES
a. Certificate of Compliance
I, the undersigned attorney, do hereby certify that the brief herein does exceed the 15,000 word limit of Rule 9.4, T.R.A.P. by 111 words, relying on the word count of Microsoft 365, this brief contains 15,111 computer generated words, not including the caption, identity of parties and counsel, table of contents, index of authorities, statement of the case, statement regarding oral argument, issues presented, signature, proof of service, certificate of compliance, and certificate of service. The text in the body of the brief is a 14-point font, and the footnotes are in 12-point font.
/s/ Ugalahi Agbo Claire Offoboche Ugalahi Agbo Claire Offoboche
b. Certificate of Service
I certify that on June 25, 2025, I served a true and correct copy of above and
foregoing on all counsel of record for appellees via simultaneous efiletexas.org
eservice upon filing including on:
Robert J. Davis bdavis@mssattorneys.com and Kyle T. Barry kbarry@mssattorneys.com Counsel for Appellees
/s/ Ugalahi Agbo Claire Offoboche Ugalahi Agbo Claire Offoboche
APPELLANT’S AMENDED BRIEF Page 77 of 77 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.
Ugalahi Offoboche Bar No. 24068619 ugy@uacoffobochelaw.com Envelope ID: 102391590 Filing Code Description: Motion Filing Description: MOTION FOR LEAVE TO FILE UNTIMELY BRIEF BY 9 MINUTES AND TO FILE AMENDED APPELLANT'S BRIEF WITH EXCESS WORDS Status as of 6/25/2025 7:04 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Ugalahi UgyOffoboche ugy@uacoffobochelaw.com 6/25/2025 6:13:06 AM SENT
Robert J.Davis bdavis@mssattorneys.com 6/25/2025 6:13:06 AM SENT
Kyle T.Barry kbarry@mssattorneys.com 6/25/2025 6:13:06 AM SENT
Kyle T.Barry kbarry@mssattorneys.com 6/25/2025 6:13:06 AM SENT
Ugalahi Offoboche v. Collin County, Texas, Collin County Sheriff's Deputies Mounger, Watson, and McMillan and Former Collin County Chief Deputy Constable Rumfield (Ugalahi Offoboche v. Collin County, Texas, Collin County Sheriff's Deputies Mounger, Watson, and McMillan and Former Collin County Chief Deputy Constable Rumfield) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.