thank you may be seated please the court brandon moon spent seventeen years in prison for a rape that he did not commit he was exonerated when d n a testing proved he was innocent man was put in prison by the biased work of the paso police all along actors who caused and prolonged his wrongful imprisonment but that is not the end of the ways the justice system has failed them because at that point this case then sat at the district court for more than ten years w stay on merits discovery waiting for a ruling at the twelve b six stage which brings us to today this appeal involves three claims against three sets of defendants first the city defendants second the county defendants moon asserts a state law cause of action for false imprisonment against the city defendants this is a straightforward plain vanilla theory issues state substantive brief they take the position that texas law provides that false imprisonment is a continuing toward but need this court reach that issue yes your honor there are multiple intermediate courts of appeals in texas that held that false imprisonment continuing toward the cause of action for which occurs upon released from detention but we could if we agreed with you that it's supposed to be state and not federal and that they do have that can that they state that we could send it back and let the district court do that analysis are you saying we should do that analysis your honor i believe that issues before this court to decide but we would not be opposed to this court remaining with instructions to consider the the dismissal from which we're appealing so we would have to if we didn't choose to address it if we won if the district court was to have an option we would send it back and say this is these are state law and this is the this is the and remain with instructions for further proceedings on those claims carried on to the marriage stage and to be clear this this court has never addressed the precise issue that's before it today on the claims against the city defendant that the question as your honour's are bringing into relief as is what rule of a cruel applies to a purely state law cause of action that is that happens to be brought alongside section one thousand nine hundred three causes of action that arise from similar facts and we have to follow the texas from this court must follow the texas rule and what i'm getting at is in in the handful of prior cases from this court that address similar situations that involved purely state law claims that happen to be brought alongside section one thousand nine hundred three claims this court has never fully articulated the correct analysis it's really never had an opportunity to do so squarely address this question but it has come awfully close to endorsing the rule that is set out in the intermediate appellate courts i mean three years ago the court said we've neither help me put it we've neither end ways that intermediate courts of appeals have addressed the continuing tort doctrine of texas and that supreme court gave us no reason to doubt that that is the way the stream is going in texas l turning to men's claims against the county defendants keeping in mind that merits discovery has been stayed to this point on the facts in the record currently a reasonable juror could conclude from this record viewing it in the light most favorable to men that the clerks policy of disorganization caused created conditions that caused the failure to locate the critical checkout document in  i believe the facts that are relevant for this claim would not have been known to him until the limited narrow discovery in this case and that's because we did not know that the check out document actually existe until a limited immunity discovery was allowed in this lawsuit i thought his counsel had signed the check out document by all accounts and the kind of nuance and or play there but doing this record in the light most favorable to men and as as the party not moving for summary judgment or dismissal i think that this court could reasonably conclude that mean did not know of the material facts necessary to bring this claim until the limited discovery was allowed in this case moreover a reasonable j employees the check out document cannot be found now that that could cut both ways on one hand it a reasonable juror may be able to conclude that that means that the county clerk really cared a lot about finding the check out document but importantly and getting more to the core of this court's inquiry a reasonable reasonable juror could also conclude from that fact that the office was so disorganized that no person could have found the checkout document you can't you can't say that the office was totally just organized on the basis that they can find one document and i should be more than your honor we would respectfully encourage the panel if it has not already to view the video of the news report that the clerk's successors agreed to sit for it is located at page two two two seven of the record but that it is available in this part of the record and to answer your question judge to what you would see is a sitting clerk at the paso county walking through a labyrinth of not labeled stroman about boxes and evidence with absolutely no system of filing record keeping the organization it leaves little doubt as to why the check out document could not be located in ninety six if you can put your eyes on what the inside of that building looked like and secure right on the fact that millions council agreed to be totally there was no break in the chain of custody that is a fact we know today that there was no break in the chain so the stipulation doesn't apply in the first place the evidence went from proper custodian to proper custodian to proper  n and there was proctor proper documentation for each transfer between each custodian it went out of the clerk's office to the sheriff's that transfer was documented by the check out document and the two raise then went from the sheriff's to live codes for d n a testing that transfer was documented by the second race report which i believe is ten thirty two of the record and then the next page is a fed ex or u p s air bill showing into live codes and then a live currents evidence the receipt of the evidence by a letter by multiple letters i believe that said we received the evidence there is not a single break in that chain so the stipulate that the assertion that  harm here should be borne by moon is illusory in the first place because it's the problem is not that there is a break in the chain the problem is that one of the links in the chain was lost temporarily i'm not sure if that's a false impression but that is not the core of the chain of custody argument that stand that the state asserted i going to make he would have he would have known it seems if you charge knowledge of laurie which may not be in this case he would have did the lawyer have to check out document your honor at all times to check a document was in the county clerk's office that's where it was when it was created have it with the lawyer now and knowledge up it was when it was created he of history you're out to really i'm drawing a distinction here and i want to be clear about it the problem is not that they didn't know where the evidence was in one thousand nine hundred six the evidence was with life codes we know that it did not get sent back to man's attorney that means attorney may have known the problem as that the check out document which at all times was in the district clerk's office could not be located and that is the that is the problem and the only problem that underlies the chain of custody argument against men who were going to let every each side have four more minutes because you haven't even talked about your other point yet but i'm sorry judge charlie did you have something else on this or something but that's not the reason the havey is corpus application was denied that so is it was denied i mean it was denied also because the results are not reliable they don't eliminate him so even if if we don't hold the stipulation against your client how do you still prevail well and judge all right that that really wades into the essence of a right of access claim here are some things we know about the circumstances surrounding the denial of the fourth tape as one davis testified he would not signed them mere hours later without issue because this is a right of access claim unfortunately we can't get in a time machine and go back to nineteen ninety six and ask how testing might have appointed because counsel for men or or some other outcomes we can't say for sure but that's the law doesn't require us to say for sure under christopher v harbury what the law requires us to do establish three things first and arguable a non criminal is claim second and official action that frustrated litigation of that claim and third an injury that is not that cannot be recovered today and we've established all those three things first the arguable and non tribal is claim that man would have brought that was available to him in one thousand nine hundred six was that he was actually in a set of the rape for which he was convicted and d n a evidence would have proved second official action that frustrated that claim missing check out document was caused by the clerk's disorganization and i just spoke a moment ago about all of the ways that the fourth baby is reasonably could have come out in a way that led to moon's exoneration soon and finally a harm that cannot be rectified today moon cannot get those eight years of his life back there is no cause of action available to him today this trial occur before i was born so i cannot speak from personal experience but not for long hours but what i can say is that by all accounts in this record there was no physical evidence ever linking men to the alleged crime i believe that the crime was committed using a ski mask and in some sort of weapon and none of that evidence was ever recovered or tied to me so i believe that it really hangs on and other words i don't think there is evidence tending to show that tending to show his guilt that would not be answer i guess actually you were born that happened after your board said that even during that time period while that may had to be a different law now we have all sorts of remedies in the innocence that that was not there during that time and let's let's par that out a little a little bit because i want to be clear about the nature of the claim against davis it is similar to the claim against the county defendants but it's different the claim against davis and for the purpose of this course  disclose some fact in the process that you have a constitutional duty to disclose that here's here's here's how we get there you are one state a step outside of the umbrella of absolute immunity after the fourth a b s proceedings ended and he testified that his role as an advocate ended on spotting you were doing qualified immunity by the weakest standard and i guess still what is the case so so we get outside the umbrella of qualified the at that point davis did not just happen upon its scope for material he injected himself into the conversation between what would have been the cork had heaviest on a different direction but in reality was probably moon davis injected himself into that conversation between stanley cases injecting yourself in the conversation somehow  which says that the right of access must be adequate meaningful and effectiveness and when davis put himself in the position as the go between running the water between stanley  good morning i'm signaling namer i'm here representing the county defendants and assistant district attorney davis i need to make three points during my argument today the first regarding access to the court that this court lacks jurisdiction and nine hundred eighty three case requires the identification of a constitutional issue and no such constitutional argument that has been preserved in the court below and there is no such argument in this case the second one is that a davis should protected by absolute immunity in the context of this case and that the plaintiff has failed to review his record and is not accurate on his facts and we need to straighten some of that out with the respect that he lacked jurisdiction is that the right terminology or are you just saying that they waived it in order to have the jurisdiction you have to have the access to the court claim which is the only thing that they brought forth in their original brief to this cork access to the court i had never seen those words in twenty five hundred pages of record there were at least seven defense attorneys not one person recognize that issue not one person brief that issue the court did not address that issue it is nowhere in the pleading as you open the door a few minutes ago there are pleading requirements for access to the court it is not enough to say i have a right to access to the court you have to identify the scope of that access what is that case or that group of cases that tells us that the underlying activity of the official was wrong why isn't his due process claim adequate it's a rose by any other name would smell as sweet perhaps because he said in his due process claim it was about access the factual underpinning is there's absolutely no question that the issue of due process was raised below in count twelve it says you failed to supervise district clerk and this violated due process it said that you failed to train this violated due process that you met failed to turn over evidence that you hand and this violated due the but they were dan's in the context of a very specific claims that were addressed on their merits nobody was looking at access to the court and when you are pleading access to the court you are required besides saying you try the issue of access to the court you don't ride the underlying claim you say this is what caused the problem so that the court can make a determination as to whether or not that underlying claim is frivolous but i would submit to you that it was frivolous the underlying claim of course mr moon wants to prove that he is innocent but he had nothing to use to suit the county and prevailed his d n a evidence from the first test in one thousand nine hundred ninety was useless it said this was the d n a of a woman and you are in a moment give us the victim's blood and we'll tell you whether or not this was the victim's d n a the second test was one performed by the state lab years later and it was equally helpful to mr moon it said you have not been eliminated as the potential rapist in this case that's what it's said and those two claim those two d reports do not create a a valid underlying claim for which mr moon could have lost access to the court now to day for the very first time ever i heard of the explanation that had had this been done differently  judge littered who ruled on the fourth application for a b s really could have held a hearing and he could have done all of these different things judge ordered was never mentioned in any of the pleadings below and the record for this haiti was unlike any record i've seen it was seventy five pages long why did davis go to the links he went in this case and the answer is the law was changing in texas hundred ninety five the legislature passed a change to the hague be a statute it was article eleven point zero seven four eight two and that particular provisions say that if a defendant produces post conviction evidence that proves actual innocence he must be released from prison shortly after that about six months later a case came down that was a person on death row and the d in a in that case was used to to really look into this d n a evidence and that's the reason that he called the state lab and he said explain this d n a result to me evidence to be sent back and retested by the lab now in the brief that mr moon wrote he said that that all happened after the fourth the response to the fourth petition so that's what initiated this we know that back activity was protected by absolute immunity a very similar case it's cited and mr moon's brief and yet is the warning case and it was as i recall in its morning warning versus moreau and it was a two thousand and nine case and in that case it was a little different they were determining whether or not absolute immunity for d that was discovered to actually prove a person's innocence was withheld by the district attorneys for about seventy two days while they did additional testing and other things and the court was trying to determine whether to expand absolute immunity to cover the writ of habeas corpus portion of  this particular perceiving the announces that that court went to the bridge was to an ask what was the obligation of this prosecutor and they said he had a duty not to automatically oppose but to figure out whether on the merits he should apologise in a similar s this is what mr davis was doing he requested the d n a evidence he found it it nobody knew where it was it wasn't in the defense it wasn't in the plaintiff's hands it wasn't in the clerk's hands what had happened to it no one was clear on but it was found it was brought back and that day when mr davis seven months later received the results to look at that evidence he had to think about its legal significance just the same way was no there was no ongoing procedure he gets the stuff in the mail and so now he has to decide what do i do with the stuff i just see there's no life claim well i think that's exactly what he had to do jail it's very similar to what you have recognized and in rylan with her you say rolland versus shapiro where you say at the very beginning of a case when the prosecutor is looking at the evidence they're making that quantify judicial determination should i file this case or should i pass on and similarly he is making a decision should i file a motion to fill motion to get mr mann out of jail based upon actual innocence as is my obligation under the statute or should i pass and because this evidence told literally did not exonerate mr moon he's had to pass with respect to the check out document what you have is very clear evidence in the record at tach to the a b a davis is for three spots where he goes through him he describes in great detail what happened in the trial what happened in the previous response and he has evidence you have first the the defense attorney mr hughes talking about yes i wrote the letter no i didn't see in the evidence what he did there's also the testimony of the clerk and it says mr hughes checked out the evidence there is an affidavit attached for matthew it says i was there with him when he checked out the evidence i refused to sign that evidence law then it is that the clerk that evidence box was given to the court clerk for mailing eventually then it shows that the clerk quit his job and then they couldn't find the evidence the clerk had to call and say come back here you need to wrap it up you to get there was an extra four minutes do you not get that already but i get that i thought she got it at the beginning all over the place and finally it is since to the testing lab and so there is a break and mr moon is responsible for thank you thank here from the city next president and within the parameters of fair play as you know mr moon has argued that the court erred by not adopting the state law theory of a continuing tort with regard to false imprisonment claims so that the ac time for a cause of action he argues begins after mr moon's imprisonment ended in two thousand and four in the case of wallace versus cato the supreme court held that the statute of limitations for false imprisonment where the arrest is followed by criminal proceedings as the mr whose case began to run and to run a texas claim have we ever held that the a cruel statute that governs the accrual that governs is a federal or what have you cited to us to anytime we are taking a statute of limitations by a state the accrual aspects of any of that are always in the federal realm by the state ar continuing toward within the texas realm the some other courts have talked about that they are getting into the in cool aspects of the case whereas it role is limited to coming up with a sta limitations that's several that's what the federal court looks at whenever they get involved in a federal realm in this case a lawsuit in federal court this is not a federal claim that you understand that just they fall to claims or is the one under the fourteenth amendment and then they're got their over here talking about the state we're talking about his state law he only appeals his state law because claim for false imprisonment not the dismissal of the one nine hundred eighty three he didn't appeal the nine six was in any way shape or form something that they were not legally able to do now whether it's doing away with it and then it's be a supplement situation or remand that i will speak to that i'm only speaking to the fact that they brought into this  dismissed the case failed state a claim for where the federal court can actually come and do something with it and now they're bringing it up on appeal again back within the case they're beginning a concept of continuing torque that's a texas ideology consideration by judge garcia questions asked by the court this continuing tort theory was never raised at the trial court wasn't pleading and it wasn't argued in response to the twelve b six and for those reasons it was not addressed by judge garcia further your honor there were questions asked about texas state law and the continuous tort theory it is far from clear that continuing to work theory is recognized by texas at all there is one case  adler which identified it and from that it seemingly all other cases have sprung eller was a very peculiar case it was a mental institution confinement it lasted twenty four hours and the question before the court was a case that was filed two years from the second day of confinement is that timely as to the individuals who instigated the confinement and the court's main reasoning was that it was not because of what we now think of as the contagion tort theory but because the individual was held without access to legal representation in fact the court used the word incommunicado so if if you read adler opinion it really says that if you are held without recourse to legal resources for a period of time you are disabled under the texas statute of limitations and it should be extended to cover the end of your disability from that other cases the upjohn case which the appellant cite is a house see on a drug product case it has nothing to do with false imprisonment and  whether taking drugs over time when the cause of action occurs the chronon case which they cite was actually filed within the two year statute of limitations but the court gratuitously identify the continuous toward siri the thorough case was a hospital false imprisonment case where a woman had a kidney transferred and she alleged even though she missed  statute of limitations by three months she alleged that her forty five ninety in that or extended the statute of limitations which the court denied but during the course of the analysis again they gratuitously mentioned the continuous tort theory and finally the jackson case the plaintiff missed the statute of limitations by three years and again for no reason the court identified the continuous tort theory so the only case that ever actually held a continuous tort was one single intermediate court case the adler case more notably the exxon mobil vs ring conus case which just came out last year from the texas supreme court specifically indicated that we have not accepted we have not written on this theory we acknowledge that there is this theory out there they did not apply it to the case before them it did not offer any relief to the litigants but most importantly they articulated the elements of the theory the doctrine of continuing tort is rooted in the plaintiff's inability to know that ongoing conduct is causing him injury that absolutely cannot apply to a false imprisonment ok so it's very unlikely that when the case is squarely before the texas supreme court they will adopt that there could even argue that in your premise you're right you didn't argue an eery gas and what whether an intermediate core you didn't argue that instead you argued federal a cruel argued that this court should not accept a continuous tort for the application of a state law false imprisonment and i did not you didn't do any eerie analysis no it's a matter of to my knowledge it's entirely up in the private of the of this court what a cruel day to apply whether the fit state or federal even if this was state law it would not be binding on this court and there are good reasons why this court should not accept it even if it were state law it would be inconsistent with the one nine hundred eighty three law so that you would have a different a cool date for a false imprisonment pradhan one thousand nine hundred eighty three than a false imprisonment under state law says that's not appropriate well it just creates inconsistency in the application of false imprisonment law well the plaintiff gets to pick whether they come to us or come go and state and and the state cl understood i would briefly like to answer the court question of whether you have ever decided this not in so many words you have ruled several times and your honor to to clarify on what what is the theory the policy purpose underlying the application of the continuing tort doctrine in texas it's really not what counsel just describe the theory is this in texas when a person is falsely or wrongfully imprisoned the it's not it's not that they don't know they're being harmed it's that texas regards the cost of that harm as an first if this court first mover is not required to provide an eloquent and a labyrinth and detailed articulate theory of every possible legal claim that he wants to bring the law requires a shortened plain state here are places in his complaint where he met that standard first he pled at paragraph seventy nine this is a city county defendant the clerk did not have a proper system in place to keep track of and document evidence then paragraphs ninety seven and ninety eight the clerk had no process to preserve the chain of custody and men's incarceration was prolonged as a result that says to the forty four that error caused him to remain incarcerated until two thousand and four he may not have used the magic words access in the time that that words can or pot your various theories of law and causes of action said plaintiff's claims that these defendants stored attempts to secure additional d n a testing and violated his due process rights by slowing down the process for him to get exonerated that's the essence of his right of access claim is that he could have been free in one thousand nine hundred six but they slowed that process down by their various failures and he ultimately was exonerated only eight years later that's the gist of the right of access argument honor as to the state law claim against the city defendants this is a straightforward pure legal question of application of erie and we request that this court address that question respectfully moon pleaded such a limitations does not apply at paragraph one thirty three of the complaint and judicial economy suggest that