Michael Quinn Sullivan v. Texas Ethics Commission ( 2018 )

ACCEPTED
03-17-00392-CV
21562872
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/2/2018 4:39 PM
JEFFREY D. KYLE
CLERK
Joseph Nixon
Akerman LLP
1300 Post Oak
FILED IN Boulevard
Suite 2500
3rd COURT OF APPEALS
Houston,
AUSTIN, TEXASTX 77056
1/2/2018 4:39:29
T: 713 PM
623 0887
January 2, 2018 JEFFREYF:D. 713 960 1527
KYLE
Clerk
RE: Sullivan v. Texas Ethic Commission, No. 03-17-00392-CV, in the Court of Appeals for
the Third Judicial District of Texas, in Austin.
The Honorable Justices David Puryear, Via E-filing
Scott, Field, and Cindy Bourland
Third Court of Appeals
P.O. Box 12547
Austin, Texas 78711-2547
Appellant’s Response to the Post-Submission Letter Brief of the Texas Ethics Commission
Dear Justices Puryear, Field, and Bourland:
I. The Texas Ethics Commission (“TEC”) admits that the exemption contained
in TEX. CIV. PRAC. & REM. CODE §27.010(a) does not exempt this legal action from a
motion to dismiss brought pursuant to TEX. CIV. PRAC. & REM. CODE §27.003.
First, this suit is not an “enforcement action” at all as the TEC has so admitted. RR 3:49;
RR 3:58.
Second, the TEC admits in its letter brief it did not vote to initiate a civil “enforcement
action” as required by TEX. GOV’T CODE § 571.171. Nor did the TEC vote to initiate an
investigation. TEX. GOV’T CODE § 571.124. This court has jurisdiction only because of a de novo
review under TEX. GOV’T CODE § 571.133(a) and not because the TEC voted to initiate an
enforcement action.
Finally, the matter is not brought in the name of the state by the Attorney General.
akerman.com
43724001;1
II. The case may not proceed to trial on a notice of appeal and a general denial
as the only live pleadings.
The position of the TEC in its letter brief that this case could go to trial with only a notice
of appeal and a general denial in not legally supportable. Indisputably, the TEC has the burden of
proof in this case. TEX. GOV’T CODE § 571.133(d) very clearly states, in part:
“(d)…. The reviewing court shall try all issues of fact and law in
the manner applicable to the other civil suits in this state but may
not admit in evidence the fact of prior action by the commission or
the nature of that action, except to the limited extent necessary to
show compliance with statutory provisions that vest jurisdiction in
the court. A party is entitled, on demand, to a jury determination of
any issue of fact on which a jury determination is available in other
civil suites in their state.”
TEX.GOV’T CODE § 571.133(d), therefore, requires, The Texas Rules of Civil Procedure
and Evidence apply to this case. That a case may go to trial with live pleadings of only a notice
of appeal by a respondent and a general denial by the TEC and be submitted to a jury is
specifically contradicted by Rules 45, 47, 68, 78, 91, 265, 266 and 269 of the Texas Rules of Civil
Procedure, at a minimum. Further, a notice of appeal and a general denial as the only live
pleadings at trial would not give the trial court any basis to admit any evidence, as no evidence
would have any tendency to make a fact plead more or less probable where there are no operative
facts plead. TEX. R. CIV. EVID §401 AND 402.
Respectfully submitted,
AKERMAN LLP
By: /s/Joseph M. Nixon
Joseph M. Nixon
joe.nixon@akerman.com
State Bar No. 15244800
1300 Post Oak Blvd. Suite 2500
Houston, Texas 77056
Tel: (713) 623-0887
Fax: (713) 9630-1527
43724001;1
James E. “Trey” Trainor, III
trey.trainor@akerman.com
700 Lavaca Street, Suite 1400
Austin, Texas 78701
Tel: (512) 623-6700
Fax: (512)623-6701
COUNSEL FOR APPELLANT
MICHAEL QUINN SULLIVAN
CERTIFICATE OF SERVICE
I hereby certify that a true and correct cope of the foregoing Response to the Post-
Submission Letter Brief of the Texas Ethics Commission has been electronically filed and served
on all counsel below on January 2, 2018.
Eric J. R. Nichols
enichols@beckredden.com
Amanda Taylor
ataylor@beckredden.com
Amy K. Penn
apenn@beckredden.com
BECK REDDEN, LLP
515 Congress Ave., Suite 1900
Austin, Texas 78701
(512) 708-1000
ATTORNEYS FOR APPELLEE
43724001;1