i 

Case No. 03-14-00739-CV

IN THE THIRD COURT OF APPEALS

AUSTIN, TEXAS

EX PARTE ROBERT BURNS SPRINGSTEEN IV,

Appellant

APPELLEE ROSEMARY LEHMBERG’S BRIEF 

Respectfully Submitted,

DAVID ESCAMILLA

County Attorney, Travis County

Travis County Attorney’s Office

P.O. Box 1748

Austin, Texas 78767

Telephone: (512) 854-9513

Facsimile: (512) 854-4808

sherine.thomas@traviscountytx.gov

andrew.williams@traviscountytx.gov

pat.kelly@traviscountytx.gov

/s/ Andrew M. Williams

Sherine E. Thomas

State Bar No. 00794734

Andrew M. Williams

State Bar No. 24068345

Patrick M. Kelly

State Bar No. 11228000

ATTORNEYS FOR APPELLEE

DATE: February 6, 2015 

ORAL ARGUMENT NOT REQUESTED 

ACCEPTED

03-14-00739-CV

4080797

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/9/2015 5:04:47 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 2/9/2015 5:04:47 PM JEFFREY D. KYLE Clerk
ii

IDENTITY OF THE PARTIES

Trial Court Cause Number: D-1-GN-14-001847

Robert Burns Springsteen IV, 

Appellant

Broadus A. Spivey

Texas Bar No. 00000076

LAW OFFICES OF BROADUS A. 

SPIVEY

3303 Northland Drive, Suite 205

Austin, Texas 78731

bas@spivey-law.com

James W. Hackney

Texas Bar No. 08671000

LAW OFFICES OF JIM HACKNEY

5109 McDade Dr.

Austin, TX 78735

jim@jameshackneylaw.com

Charles F. Baird

Texas Bar No. 00000045

Amber Farrelly

Texas Bar No. 24069671

BAIRD☆FARRELLY CRIMINAL 

DEFENSE

2312 Western Trails Blvd Ste. 102-A

Austin, TX 78745

jcfbaird@gmail.com

adfelaw@gmail.com

Rosemary Lehmberg, Travis County 

District Attorney, Appellee

Sherine E. Thomas

Texas Bar No. 00794734

sherine.thomas@traviscountytx.gov

Andrew M. Williams

Texas Bar No. 24068345

andrew.williams@traviscountytx.gov

Patrick M. Kelly

Texas Bar No. 11228000

pat.kelly@traviscountytx.gov

Travis County Attorney’s Office 

P. O. Box 1748

Austin, Texas 78767

Tel. 512-854-9513

Fax 512-854-4808
iii

TABLE OF CONTENTS

IDENTITY OF THE PARTIES................................................................................ ii

TABLE OF CONTENTS......................................................................................... iii

INDEX OF AUTHORITIES......................................................................................v

STATEMENT OF THE CASE..................................................... ...........2

STATEMENT ON ORAL ARGUMENT....................................................3

ISSUES PRESENTED...............................................................................................4

STATEMENT OF FACTS ........................................................................................4

A. Factual Background and Procedural History of Underlying Criminal Matter 4

B. Procedural History in Request for Ex Parte Declaratory Judgment................6

SUMMARY OF ARGUMENT...............................................................................10

ARGUMENT AND AUTHORITIES......................................................................11

A. The trial court’s subject-matter jurisdiction, or lack thereof, is a question of 

law that is reviewed de novo............................................................................. 11

B. By failing to assert even a single cause of action recognized under Texas 

law, Springsteen failed to trigger the Trial Court’s jurisdiction. ..................13

1. ISSUE 1 (Restated): The UDJA does not create an independent cause of 

action or a waiver of immunity as alleged.............................................15

a. Appellant fails to establish jurisdiction because the UDJA does not 

create jurisdiction when there is no underlying cause of action....16

b. As pled, Appellant fails to trigger the trial court’s jurisdiction by 

failing to identify a waiver of immunity. .......................................18

2. ISSUE 2 (Restated): Appellant complains of a non-justiciable issue that 

renders the court without jurisdiction....................................................21

3. ISSUE 3 (Restated): The Open Courts Provision of the Texas 

Constitution does not provide jurisdiction without a cause of action. ..25

4. ISSUE 4 (Restated): The civil trial court has no jurisdiction over 

criminal matters .....................................................................................26

5. ISSUE 5 (Restated): Appellant cannot establish jurisdiction in state 

court when a federal court has already dismissed his similarly defective 

pleading seeking a declaration of actual innocence...............................27
iv

CONCLUSION AND PRAYER .............................................................................28

CERTIFICATE OF COMPLIANCE ......................................................................30

CERTIFICATE OF SERVICE ................................................................................31
v

INDEX OF AUTHORITIES

CASE LAW

Bland Indep. Sch. Dist. v. Blue, 34 S.W. 3d 547 (Tex. 2000)..................................... 11

Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978) ....... 19

Board of Water Engineers v. City of San Antonio, 283 S.W.2d 722 (Tex. 1955)...... 22

Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704 (Tex. 2003).................19

City of Dallas v. VSC, LLC, 347 S.W.3d 231 (Tex. 2011) ................................... 21, 22

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)......................................19

Cloud v. McKinney, 228 S.W.3d 326 (Tex.App.--Austin 2007, no pet.)................... 19

Combs v. Metropolitan Life Ins. Co., 298 S.W.3d 793 (Tex.App.--Austin 2009, pet. 

denied)......................................................................................................................13

Demouchette v. State, 731 S.W.2d 75 (Tex. Crim. App. 1986).................................. 27

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009) ......................13

Frasier v. Yanes, 9 S.W.3d 422 (Tex. App. – Austin 1999, no writ)......................22

First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627 (Tex. 2008) ............................13

Gattis v. Duty, 349 S.W.3d 193 (Tex. App. – Austin 2011, no pet.).......................... 12

General Motors Corp. v. Bray, 243 S.W.3d 678 (Tex. App. – Austin 2007, no 

pet.)...........................................................................................................................13

Gomez v. Pasadena Health Care Management, 246 S.W.3d 306 (Tex.App.--Houston 

[14th Dist.] 2008, no pet.)............................................................................................. 25

In Re Allen, 366 S.W.3d 696 (Tex. 2012)..................................................................8

In re Thompson, 330 S.W.3d 411 (Tex.App.--Austin 2010, no pet.)............3, 14, 15

Lone Starr Multi Theaters, Inc. v. State, 922 S.W.2d 295 (Tex.App.--Austin 1996, no 

writ.)....................................................................................................................... 14, 23

Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995)............................................. 25

Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006)................12, 16

Shook v. Walden, 304 S.W.3d 910 (Tex.App.--Austin 2010, pet. denied)..............13

Short v. W.T. Carter & Bro., 126 S.W.2d 953 (Tex. 1938)........................................ 19

Southwest Airlines Co. v. Texas High-Speed Rail Authority, 863 S.W.2d 123 

(Tex.App.--Austin 1993, writ denied)................................................................... 14, 22

State v. Epperson, 121 Tex. 80, 42 S.W.2d 228 (Tex. 1931)..................................19

State v. Malone Serv. Co., 829 S.W.2d 763 (Tex. 1992).........................................19

State v. Margolis, 439 S.W.2d 695 (Tex.App.--Austin 1969, writ ref’d n.r.e.)... 14, 23

State v. Morales, 869 S. W. 2d 941 (Tex. 1994)................................................... 17, 26

State v. Oakley, 227 S.W.3d 58 (Tex. 2007)............................................................... 21

State v. Young, 265 S.W.3d 697 (Tex.App.--Austin 2008, pet. denied)......................

......................................................................................................3, 17, 18, 20, 21, 23
vi

Springsteen v. State, 2006 Tex. Crim. App. LEXIS 2340 (Tex. Crim. App. May 24, 

2006), cert. denied 549 U.S. 1253 (2007) .............................................................4, 5

Springsteen v. Combs, 2013 U.S. Dist. LEXIS 133971 (W.D. Tex. Sept. 19, 

2013) ......................................................................................................................7, 8

Tex. Ass’n. of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993)......... 22, 24

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)................. 12

Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636 (Tex. 1999)......................................... 15

Texas Natural Resources Conservation Comm’n v. IT-Davy, 74 S.W.3d 849 (Tex. 

2002)....................................................................................................................... 16, 17

Trantham v. Isaaks, 218 S.W. 3D 750 (Tex.App.--Fort Worth 2007, pet. denied)... 26

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003)............................ 16

Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007).................................................... 12

W. D. Haden Co. v. Dodgen, 308 S.W.2d 838 (Tex. 1958) ..............................17, 20

STATUTES CODES AND CONSTITUTION

Tex. Civ. Prac. & Rem. Code §10.001........................................................................ 26

Tex. Civ. Prac. & Rem. Code §37.001-.011 ............................................................... 14

Tex. Civ. Prac. & Rem. Code §37.002........................................................................ 16

Tex. Civ. Prac. & Rem. Code §37.004........................................................................ 16

Tex. Civ. Prac. & Rem. Code §37.006........................................................................ 14

Tex. Civ. Prac. & Rem. Code §37.008........................................................................ 24

Tex. Civ. Prac. & Rem. Code §103.001......................................................6, 17, 20, 24

Tex. Civ. Prac. & Rem. Code §103.051(a)(2)............................................................... 6

Tex. Const. art. I, §13................................................................................................... 25

Tex. Code Crim. Proc. Art. 12.01(1)(A) ..................................................................... 27

Tex. R. App. P. 45.......................................................................................................... 8
323509-1 1

Case No. 03-14-00739-CV

IN THE THIRD COURT OF APPEALS

AUSTIN, TEXAS

EX PARTE ROBERT BURNS SPRINGSTEEN IV,

Appellant

APPELLEE ROSEMARY LEHMBERG’S BRIEF

TO THE HONORABLE COURT:

Appellee, Travis County District Attorney, Rosemary Lehmberg, moves the 

Court to affirm the judgment of the Trial Court in the above styled and numbered 

appeal, and to grant Appellee judgment for costs.
323509-1 2

STATEMENT OF THE CASE

On February 19, 2014, in his fourth attempt to recover money, Appellant 

filed his First Amended Petition for Declaratory Judgment in Bexar County, Texas, 

asking the Court to declare him “actually innocent”. Supplemental Clerk’s Record 

(“S.C.R.”) 135-147. In his First Amended Petition, Springsteen added “the District 

Attorney of Travis County, Texas, Rosemary Lehmberg, is an ‘interested party’, 

and as such should be served with process and notice to appear.’” S.C.R. 135. 

Subsequently, on May 9, 2014, Appellant filed his Second Amended Petition for 

Declaratory Judgment requesting a declaration of actual innocence and maintained 

the District Attorney Lehmberg as an “interested party”. S.C.R. 224-237. On May 

23, 2014, the Bexar County Court granted Travis County District Attorney 

Lehmberg’s Motion to Transfer Venue to Travis County. C.R. 64.

On September 25, 2014, after transfer of venue to Travis County, Appellant 

filed his Third Amended Petition for Declaratory Judgment which also sought a 

declaration of actual innocence. He continued to name District Attorney Lehmberg 

as an “interested party”. C.R. 419-432. After a hearing and on October 16, 2014, 

the Travis County District Court granted Travis County District Attorney 

Lehmberg’s Plea to the Jurisdiction and dismissed the case with prejudice. 

Appellant appeals the dismissal for lack of jurisdiction.
323509-1 3

STATEMENT ON ORAL ARGUMENT

Appellant does not request oral argument because the controlling issues of 

jurisdiction, declaratory judgment, statutory construction and sovereign immunity 

under the Tim Cole Act have been decided by this Court1 and the Texas Supreme 

Court. The relevant facts and legal arguments are adequately presented in the 

record and the briefs, given this appeal challenges dismissal on jurisdictional 

grounds previously raised to the trial court. For the foregoing reasons, oral 

argument would not significantly aid the court in its decision.

Should the Court grant argument in response to Appellant Springsteen’s 

request, Appellee District Attorney Lehmberg does not waive her right to present 

argument before the Court and respectfully requests an opportunity to articulate her 

responses to the Court.

 1 State v. Young, 265 S.W.3d 697 (Tex.App.--Austin 2008, pet. denied);In re Thompson, 330 

S.W.3d 411 (Tex. App. Austin 2010, no pet.)
323509-1 4

ISSUES PRESENTED

The Trial Court properly granted Appellee’s Plea to the Jurisdiction because 

Appellant failed to assert even a single cause of action recognized under Texas 

law.

STATEMENT OF FACTS

Ex Parte Robert Burns Springsteen, IV, Appellant, brought this case as an 

“ex parte declaratory judgment” claim, asking the trial court for a finding of 

"actual innocence" in order to receive compensation for time served in Texas state

prison, pursuant to Texas Civil Practice & Remedies Code §103. He named 

District Attorney Rosemary Lehmberg, Appellee, as an “interested party” but not a 

defendant.

A. Factual Background and Procedural History of Underlying Criminal 

Matter

This case stems from Springsteen’s capital murder conviction related to 

what have become known as the “Yogurt Shop Murders.” Ap. Br. at p. 10. In 

brief, late in the evening of December 6, 1991, four young women were sexually 

assaulted and murdered in Austin, Texas, at an “I Can't Believe It’s Yogurt”

business. Springsteen v. State, 2006 Tex. Crim. App. LEXIS 2340 (Tex. Crim. 

App. May 24, 2006), cert. denied 549 U.S. 1253 (2007)(citation omitted).

Springsteen, as well as others, was convicted of the crimes and sentenced to death.

Id. On June 22, 2005, Texas Governor Rick Perry commuted Springsteen’s death 
323509-1 5

sentence to life in prison. Id. On May 24, 2006, the Texas Court of Criminal 

Appeals reversed Springsteen’s capital murder conviction, and remanded the 

matter to the district court for a new trial. Id. The remand was based upon the 

finding that the admission of co-defendant Michael Scott’s confession, which 

implicated Springsteen, violated the Confrontation Clause of the U.S. Constitution.

Id. The Court further found that sufficient evidence was presented at the trial court 

to support the conviction, such that Springsteen’s re-trial would not violate the

Double Jeopardy or Due Process Clauses of the Constitution. Id.

After remand, on April 17, 2008, evidence was presented to the trial court 

showing that new DNA testing proved that none of the DNA samples found at the 

crime scene and on the victims matched Springsteen. C.R. 435. On June 24, 2009, 

Springsteen and a co-defendant were released from jail on bond pending their 

upcoming trials. Id. On October 28, 2009, the Travis County District Attorney filed 

a Motion for Dismissal, requesting that the charges be dismissed, as she was not 

prepared to go to trial on the case because law enforcement was still investigating 

matters raised by the DNA testing, and the trial court was unwilling to further 

continue the re-trial. Id. The trial court granted the motion and dismissed all 

charges against Springsteen.

///
323509-1 6

B. Procedural History of Springsteen’s Numerous Attempts to Recover 

Compensation Pursuant to the Tim Cole Act

The Tim Cole Act (The Act) provides compensation for certain individuals 

who were wrongfully imprisoned and who have received a full pardon or habeas 

corpus relief. Tex. Civ. Prac. & Rem. Code §103. The legislature set out specific 

requirements and procedures for applications under the act. Id.

1) Springsteen’s first attempt for compensation was denied by Comptroller 

Combs in December 2012 for failure to meet statutory requirements for 

compensation.

On October 23, 2012, Springsteen made application to the Honorable Susan 

Combs, Texas Comptroller of Public Accounts, for compensation for being 

wrongfully imprisoned. An application under § 103.001 requires that the applicant 

include “a verified copy of the pardon, court order, motion to dismiss, and 

affidavit, as applicable, justifying the application for compensation.” Tex. Civ. 

Prac. & Rem. Code 103.051(a)(2). On December 13, 2012, Combs denied 

Springsteen's application stating that Springsteen’s application “did not include a 

pardon based on innocence . . . did not include a habeas corpus order that met the 

actual innocence requirement . . . did not include a court order habeas corpus . . . 

[and] the required statements from the State’s prosecuting attorney.” C.R.380.

///
323509-1 7

2) Springsteen’s second attempt for compensation was denied by 

Comptroller Combs in February 2013 for failure to meet statutory 

requirements for compensation.

On December 21, 2012, Springsteen again requested compensation from the 

Comptroller, and on February 14, 2013, Combs once again denied the application

for the same deficiencies previously identified. Specifically, Springsteen once 

again failed to submit adequate documentation demonstrating eligibility for 

compensation as required by the statute. Springsteen v. Combs, 2013 U.S. Dist. 

LEXIS 133971, 4 (W.D. Tex. Sept. 19, 2013, no writ) (citing Complaint Ex. C.).

C.R. 42.

3) Springsteen’s third attempt for compensation was framed as federal 

court petition for declaration of actual innocence and mandamus, which 

was dismissed, in part, because of his failure to meet the statutory 

mechanisms for recovery.

On May 23, 2013, Springsteen first sought a declaration of actual innocence 

for the purpose of qualifying for compensation under the Tim Cole Act in Federal 

District Court in the Western District of Texas, Austin Division. Springsteen v. 

Combs, 2013 U.S. Dist. LEXIS 133971 (W.D. Tex. Sept. 19, 2013). Appellant

named Texas State Comptroller Susan Combs as a defendant in that declaratory 

judgment petition. The court dismissed the suit on November 6, 2013, holding that 

Defendant Comptroller Combs was entitled to eleventh amendment immunity. Id. 

Further, the court held that the federal court does not have mandamus jurisdiction 

over a state official, but that Texas law vested jurisdiction for mandamus actions 
323509-1 8

under The Act in the Texas Supreme Court. Id. The court then questioned why 

Springsteen did not request a writ of mandamus from the Texas Supreme Court 

when there is clearly jurisdiction to make that request to that court.

2 Id. The court 

further held that a declaratory judgment would not give Appellant the right to 

recover under the Tim Cole Act because the statute does not allow for recovery 

based on such a ruling. Id. Thus, this issue presented was not justiciable as the 

court lacked the authority to redress the alleged wrong asserted therein. Id.

4) Springsteen’s fourth attempt for recovery of compensation was filed in 

state court as an ex parte declaratory judgment and it was dismissed for 

lack of jurisdiction.

Despite the federal court’s ruling instructing him of the law, Appellant

continued to attempt to circumvent the existing law and to ignore the due process 

available to him. Rather than filing an original mandamus action to the Texas 

Supreme Court, Appellant instead engaged in legal fiction, an ex parte declaratory 

judgment of actual innocence.3 On December 10, 2013, in a blatant attempt at 

forum shopping outside of Travis County, Appellant filed his Original Petition for 

 2 Citing In Re Allen, 366 S.W.3d 696, 701 (Tex. 2012) and answering its own musing with, “In 

all likelihood, he did not do so because he is aware that he cannot meet the requirements of the 

statute until he obtains a finding of actual innocence in a habeas proceeding, or receives some 

sort of habeas relief, along with a dismissal of the charges based on a motion to dismiss in which 

the prosecutor states the she believes he is actually innocent of the crimes.” Springsteen v. 

Combs at 16-17.

3 If the court of appeals determines that an appeal is frivolous, it may on motion of any party or 

on its own initiative, after notice and a reasonable opportunity for response award each

prevailing party just damages. In determining whether to award damages, the court must not 

consider any matter that does not appear in the record, briefs, or other papers filed in the court of 

appeals. Tex. R. App. P. 45
323509-1 9

Declaratory Judgment in Bexar County, Texas, asking the Court to declare him 

“actually innocent” of crimes he alleges he did not commit and stating, “This is an 

Ex Parte proceeding, and thus there is no ‘adverse party.’” Appellant’s Original

Petition for Declaratory Judgment. C.R. 3. However, in accord with the Uniform 

Declaratory Judgments Act (UDJA) Appellant stated the “State of Texas may have 

an interest in the proceeding, so a copy of the filed petition will be forwarded to the 

Attorney General of Texas.” C.R. 57.

On February 19, 2014, Appellant filed his First Amended Petition for 

Declaratory Judgment in Bexar County, Texas, again asking the Court to declare 

him “actually innocent.” Supplemental Clerk’s Record (“S.C.R.”) 135-147. In his 

First Amended Petition, Appellant added “the District Attorney of Travis County,

Texas, Rosemary Lehmberg, is an interested party, and as such should be served 

with process and notice to appear.” S.C.R. 135. Subsequently, on May 9, 2014, 

Appellant filed his Second Amended Petition for Declaratory Judgment requesting 

a declaration of actual innocence and maintained the District Attorney Lehmberg 

as an interested party. S.C.R. 224-237. On May 23, 2014, the Bexar County Court 

granted Travis County District Attorney Lehmberg’s Motion to Transfer Venue to 

Travis County. C.R. 64.

On September 25, 2014, after transfer of venue to Travis County, Appellant

filed his Third Amended Petition for Declaratory Judgment which also sought a 
323509-1 10

declaration of actual innocence. He continued to name District Attorney Lehmberg 

as an interested party. C.R. 419-432. After a hearing and on October 16, 2014, the 

Travis County District Court granted Travis County District Attorney Lehmberg’s 

Plea to the Jurisdiction and dismissed the case with prejudice. Appellant appeals 

the dismissal for lack of jurisdiction, taking a fifth bite at the apple.

SUMMARY OF ARGUMENT

Appellant Springsteen attempts to create a never before recognized

mechanism for recovery. He asks this Court to ignore existing law, trample the 

authority expressly given to District Attorney’s Office, and impede upon the 

criminal justice process. This Court should affirm the trial court’s dismissal of 

Appellant’s ex parte declaratory judgment because the trial court correctly rejected 

Appellant’s invitation to accept a series of legal fictions. Appellant Springsteen’s 

pleading fails to demonstrate jurisdiction in that the UDJA does not contemplate ex 

parte proceedings and the Appellant wholly fails to assert a valid cause of action. 

In response to Appellant’s assertions otherwise, Appellee District Attorney 

Lehmberg argues the following:

First, the trial court’s dismissal should be affirmed because a) the UDJA 

does not create jurisdiction where there is none and b) the UDJA does not waive 

immunity for actions that do not challenge the constitutionality of a statue but 

instead seek to encroach upon an official’s discretionary duties.
323509-1 11

Second, the trial court correctly dismissed the case because there is no 

justiciable issue when there are no adverse parties and the court’s ruling would not 

resolve a dispute.

Third, the dismissal should be affirmed because the Open Courts provision 

of the Texas Constitution does not apply where the Appellant lacks a well-defined 

cause of action under common law.

Fourth, the trial court’s dismissal should be affirmed because no Texas court 

has subject-matter jurisdiction to use a civil remedy and proceeding to obviate an 

action that can only be resolved under penal law, such as the indictment, 

conviction, punishment or a declaration of innocence for capital murder.

Fifth, the trial court correctly dismissed Appellant’s claim because collateral 

estoppel, or issue preclusion, bars the re-litigation of issues already determined in a 

prior suit.

For the foregoing reasons, the trial court lacked jurisdiction and properly 

dismissed this case. Appellee requests that this Court affirm the Trial Court’s order 

dismissing Springsteen’s claims for lack of jurisdiction.

ARGUMENT AND AUTHORITIES

A. The trial court’s subject-matter jurisdiction, or lack thereof, is a 

question of law that is reviewed de novo.

A plea to the jurisdiction is a dilatory plea that challenges the trial court’s 

authority to determine the subject matter of a specific cause of action. See Bland 
323509-1 12

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000). Sovereign immunity

from suit deprives a court of subject-matter jurisdiction and therefore is properly 

asserted in a plea to the jurisdiction. Reata Constr. Corp. v. City of Dallas, 197 

S.W.3d 371, 374 (Tex. 2006). The ultimate question of whether a trial court has 

subject-matter jurisdiction is a question of law that is reviewed de novo. Westbrook 

v. Penley, 231 S.W.3d 389, 394 (Tex. 2007).

When, the plea to the jurisdiction challenges the pleadings, the pleadings are 

construed liberally in favor of the plaintiff, and all allegations are accepted as true, 

unless negated by sufficient evidence. Texas Dep’t of Parks & Wildlife v. Miranda, 

133 S.W.3d 217, 226-27 (Tex. 2004); Gattis v. Duty, 349 S.W.3d 193, 200-01 

(Tex.App.--Austin 2011, no pet.) (“Our ultimate inquiry is whether the plaintiff’s 

pled and un-negated facts, taken as true . . . affirmatively demonstrate a claim or 

claims within the trial court's subject matter jurisdiction.”). If the pleadings do not 

contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction 

but do not affirmatively demonstrate an incurable defect in jurisdiction, the 

plaintiff should be afforded the opportunity to amend his pleadings. Miranda, 133 

S.W.3d at 226-27. However, if the pleadings affirmatively negate the existence of 

jurisdiction, then a plea to the jurisdiction should be granted without allowing the 

plaintiff an opportunity to amend his pleadings. Id.
323509-1 13

When jurisdictional issues turn on the interpretation of statutes, which itself 

is a question of law, decisions are reviewed de novo. See First Am. Title Ins. Co. v. 

Combs, 258 S.W.3d 627, 631 (Tex. 2008). When construing a statute, the primary 

objective is to ascertain and give effect to the legislature’s intent. Id. at 631-32. In 

determining legislative intent, the court first considers the plain language of the 

statute. General Motors Corp. v. Bray, 243 S.W.3d 678, 685 (Tex.App.--Austin 

2007, no pet.). When statutory text is clear, it is determinative of legislative intent, 

unless enforcing the plain meaning of the statute’s words would produce an absurd 

result. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009).

Only when the statutory text is ambiguous should the court “resort to rules of 

construction or extrinsic aids.” Shook v. Walden, 304 S.W.3d 910, 917 (Tex.App.--

Austin 2010, pet. denied) (internal quotations omitted); see also, Combs v. 

Metropolitan Life Ins. Co., 298 S.W.3d 793, 796-97 (Tex.App.--Austin 2009, pet. 

denied).

B. By failing to assert even a single cause of action recognized under Texas 

law, Springsteen failed to trigger the Trial Court’s jurisdiction.

Appellant asks the Court to accept a series of legal fictions in order to

circumvent existing law and create jurisdiction where there is none. Most recently,

he filed an “Ex Parte Declaratory Judgment.” Appellant argues that sovereign 

immunity is not implicated because he has not brought suit against a political
323509-1 14

subdivision of the state, insisting that there is no named defendant, but only an 

interested party. Appellant’s brief p. 14.

However, any authority a trial court has to grant declaratory relief would 

stem from the Uniform Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code 

§§ 37.001-.011, which does not contemplate ex parte proceedings. In re

Thompson, 330 S.W.3d 411, 413. (Tex.App.--Austin 2010, no pet.). To the 

contrary, the UDJA requires that all interested persons must be made parties and 

states that a declaration does not prejudice the rights of a non-party. Id.; Tex. Civ. 

Prac. & Rem. Code 37.006. If there is no adverse party, or proper parties have not 

been named, the judgment amounts to no more than an advisory opinion, which a 

court does not have the power to give. Southwest Airlines v. Texas High-Speed Rail 

Auth., 863 S.W.2d 123, 125 (Tex. App.--Austin 1993, writ denied); see also, State 

v. Margolis, 439 S.W.2d 695, 698 (Tex. Civ. App.--Austin 1969, writ ref’d n.r.e.) 

(suit for declaratory relief against attorney general dismissed for want of 

jurisdiction because no showing attorney general had enforced anti-trust laws).

Lone Starr Multi Theaters, Inc. v. State, 922 S.W.2d 295, 297-8 (Tex.App.--Austin 

1996, no writ).

When a party is excluded, the declaratory judgment case is dismissed for 

lack of jurisdiction. See Lone Starr, 922 S.W.2d at 298 (case dismissed for lack of 

jurisdiction when appropriate county and district attorneys were not named in the 
323509-1 15

action). Furthermore, a declaration judgment ruling that conflicts with a criminal 

courts ruling would necessarily require the state’s prosecutor be named as a party. 

In re Thompson, 330 S.W.3d at 416. Here, should Appellant prevail in obtaining a 

declaration of actual innocence, that declaration would encroach on Travis County 

District Attorney Lehmberg’s prosecutorial discretion. Thus, she should be 

properly named as a defendant.

Assuming, arguendo, the court liberally construes the Appellant’s pleadings 

as properly naming and noticing District Attorney Lehmberg as a party, Appellee 

asserts the following arguments which support the trial court’s dismissal and 

demonstrate that the jurisdictional defects could not be cured by repleading:

1. ISSUE 1 (Restated)

The UDJA does not create an independent cause of action or a 

waiver of immunity as alleged.

The trial court’s dismissal should be affirmed because a) the UDJA does not 

create jurisdiction where there is none and b) the UDJA does not waive immunity

for actions that do not challenge the constitutionality of a statue but instead seek to 

encroach upon an official’s discretionary duties.

Sovereign immunity encompasses immunity from suit, which bars a suit 

unless the governmental entity has consented, and immunity from liability, which 

protects the entity from judgments even if it has consented to the suit. Texas Dep’t 

of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). “Political subdivisions of the 
323509-1 16

state . . . are entitled to such immunity-- referred to as governmental immunity--

unless it has been waived.” Reata Construction Corp. v. City of Dallas, 197 

S.W.3d 371, 374 (Tex. 2006)(citations omitted); see also, Wichita Falls State 

Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). The Texas Supreme Court 

has said repeatedly that the Legislature is in the best position to waive or abrogate 

immunity, “because this allows the Legislature to protect its policymaking 

function.” Texas Natural Resources Conservation Comm’n v. IT-Davy, 74 S.W.3d 

849 (Tex. 2002) (citations omitted).

a) Appellant fails to establish jurisdiction because the UDJA does not 

create jurisdiction when there is no underlying cause of action.

The dismissal should be affirmed because the Appellant attempts to cloak a 

claim which would be barred by sovereign immunity in the guise of a declaratory 

judgment as an effort to circumvent that immunity.

The UDJA is a remedial statute designed “to settle and to afford relief from 

uncertainty and insecurity with respect to rights, status, and other legal relations.” 

Tex. Civ. Prac. & Rem. Code § 37.002(b). It provides: “A person . . . whose rights, 

status, or other legal relations are affected by a statute, municipal ordinance, 

contract, or franchise may have determined any question of construction or validity 

arising under the . . . statute, ordinance, contract, or franchise and obtain a 

declaration of rights, status, or other legal relations thereunder.” Tex. Civ. Prac. & 

Rem. Code §37.004(a). The Act, however, does not enlarge a trial court’s 
323509-1 17

jurisdiction, and a litigant’s request for declaratory relief does not alter a suit's 

underlying nature. IT-Davy, 74 S.W.3d at 855; State v. Morales, 869 S.W.2d 941, 

947 (Tex. 1994). It is well settled that “private parties cannot circumvent the 

State’s sovereign immunity from suit by characterizing a suit for money damages . 

. . as a declaratory-judgment claim.” IT-Davy, 74 S.W.3d at 856 (citing W. D. 

Haden Co. v. Dodgen, 308 S.W.2d 838, 842 (Tex. 1958)).

Here, Appellant makes it clear that he seeks a declaration of actual 

innocence so that he may obtain compensation under the Tex. Civ. Prac. & Rem. 

Code §103.001. Appellant admits his claim seeks money damages for wrongful 

imprisonment when he states, “If the trial court were to grant Appellant’s request 

for a hearing on a declaratory judgment and therefore later require the Comptroller 

to issue payment to Appellant, the State’s immunity would be waived then as 

well.” App. Brief p. 16.

However, this Court issued a salient opinion in State v. Young. State v. 

Young, 265 S.W.3d 697 (Tex. App.--Austin 2008, pet. denied). Young, like 

Appellant Springsteen, had his conviction overturned on direct appeal4 and sought

compensation under The Act. This Court held that such an individual who did not 

 4 The distinction between Springsteen’s acquittal and Young’s acquittal is that Young’s 

conviction was overturned when the appellate court determined, "the evidence is, due to the 

application of statutes, legally insufficient to support a conviction." Young, 265 S.W.3d 697, 

704. Appellant’s conviction was overturned when the court held, “the evidence of [Appellant’s] 

guilt was legally sufficient” to support the conviction and explicitly stated that neither the 

Double Jeopardy nor Due Process Clause prohibits the retrial of Appellant for the crime of 

capital murder. Springsteen v. State, No. AP-74,223 (May 24, 2006) (C.R. 11-25).
323509-1 18

obtain relief from his criminal conviction based on “actual innocence,” much less 

obtain habeas corpus relief from his conviction on that ground, had not “been 

granted relief on the basis of actual innocence for the crime for which the person 

was sentenced,” as the legislature used that phrase in chapter 103 of the civil 

practice and remedies code. Id. Accordingly, sovereign immunity barred Young’s 

claims for damages from wrongful imprisonment. Id. at 708.

Likewise, sovereign immunity bars Appellant’s claims for damages from 

wrongful imprisonment. Characterizing the claim as a declaratory judgment does 

alter the suits underlying nature and cannot circumvent immunity. Thus, the trial 

court’s dismissal should be affirmed.

b. As pled, Appellant fails to trigger the trial court’s jurisdiction by 

failing to identify a waiver of immunity.

The trial court correctly dismissed this case. Appellant’s claims are barred 

by sovereign immunity because only declaratory judgment claims that seek an 

injunction that falls within the ultra vires exception waive sovereign immunity. In 

contrast, Appellant’s request for naked declarations of rights that would encroach 

upon District Attorney Lehmberg’s prosecutorial discretion does not waive 

immunity.

The doctrine of sovereign immunity and its dual protections also extend to 

protect a government employee, including constitutional officers such as District 

Attorney Lehmberg, acting in their official capacity, pursuant to their constitutional 
323509-1 19

and statutory authorization. Cloud v. McKinney, 228 S.W.3d 326 (Tex.App.--

Austin 2007, no pet.); Short v. W.T. Carter & Bro., 126 S.W.2d 953 (Tex. 1938).

“[B]oth Texas and federal courts recognize that prosecutors have broad discretion 

in deciding which cases to prosecute. Thus, ‘[i]f the prosecutor has probable cause 

to believe that the accused committed an offense defined by statute, the decision 

whether to prosecute and what charge to file generally rests entirely within his or 

her discretion.’” State v. Malone Serv. Co., 829 S.W.2d 763, 769 (Tex. 1992) and 

Bordenkircher v. Hayes, 434 U.S. 357, 364, (1978).

The Texas Supreme Court contemplates the intersection of sovereign 

immunity, discretionary acts, and declaratory judgment in the City of El Paso v. 

Heinrich. City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Heinrich

explains:

Suits to require state officials to comply with statutory or 

constitutional provisions are not prohibited by sovereign immunity, 

even if a declaration to that effect compels the payment of money. To 

fall within this ultra vires exception, a suit must not complain of a 

government officer’s exercise of discretion, but rather must allege, 

and ultimately prove, that the officer acted without legal authority or 

failed to perform a purely ministerial act . . . . Thus, ultra vires suits 

do not attempt to exert control over the state--they attempt to reassert 

the control of the state. Stated another way, these suits do not seek to 

alter government policy but rather to enforce existing policy.

Heinrich at 3725

.

 5 The Court compared State v. Epperson, 121 Tex. 80, 42 S.W.2d 228, 231 (Tex. 1931) (“the tax 

collector’s duty . . . is purely ministerial”) with Catalina Dev., Inc. v. County of El Paso, 121 
323509-1 20

Here, Appellant argues that he is not challenging the constitutionality of a 

statute, but rather is seeking “affirmation of his rights under the statute.” App. Br. 

p. 16. He goes on to state that, under one theory, he is seeking compensation under 

Tex. Civ. Prac. & Rem. Code 103.001(a)(2)(C). This section requires that the 

state’s attorney declare under oath that “no credible evidence exists that inculpate 

the defendant . . . [and] that [she] believes that the defendant is actually innocent of 

the crime for which the person was sentenced.” Tex. Civ. Prac. & Rem Code 

103.001(a)(2)(C)(ii).

In this case, District Attorney Lehmberg dismissed the pending court case, 

but did so pending further investigation. Appellant complains that district attorneys 

could frustrate the statute and “circumvent any possibility of a similarly situated 

and wrongfully imprisoned person . . . by releasing any possible applicants pending 

‘further investigation’.” App. Br. P. 26.

Appellant further argues that he should not be precluded from compensation 

simply because he obtained relief on direct appeal and can no longer pursue habeas 

corpus relief. Despite this seemingly harsh reality, this Court recognized in Young 

that, “All things being equal, sovereign immunity would bar a suit against the State 

for damages caused by wrongful imprisonment. Consequently, at common law, 

 

S.W.3d 704, 706 (Tex. 2003) (newly elected commissioners court immune from suit where it 

“acted within its discretion to protect the perceived interests of the public” in rejecting contract 

approved by predecessor), and W. D. Haden Co. v. Dodgen, 308 S.W.2d 838 at 842 (Tex. 1958) 

(suit seeking “enforcement of contract rights” barred by immunity in the absence of any 

“statutory provision governing or limiting the manner of sale”).
323509-1 21

claimants could recover ‘nothing from a state that wrongfully imprisoned them.’” 

Young, 265 S.W.3d at 703 citing State v. Oakley 227 S.W.3d 58, 62 (Tex. 2007)

(citations omitted). This Court explained:

. . . [W]e must conclude that the legislature intended to provide a 

remedy solely to the wrongfully convicted who cannot, for whatever reason, 

obtain relief through available direct appeals. It is not absurd to suggest that 

the legislature would have considered such claimants-who have sometimes 

languished in prison for decades--as uniquely deserving of damages from the 

State, while perceiving a less-compelling interest among those who succeed 

in obtaining relief from their convictions on direct appeal.

Young, 265 S.W.3d at 707.

Thus, the trial court lacked jurisdiction over this ex parte declaratory 

judgment the UDJA does not create jurisdiction where there is no underlying cause 

of action, nor does it create jurisdiction to challenge the discretionary acts of an 

official. The dismissal was properly issued and should be affirmed.

2. ISSUE 2 (Restated)

Appellant complains of a non-justiciable issue that renders the 

court without jurisdiction.

The trial court’s dismissal should be affirmed because there is no justiciable 

issue when there is no controversy between parties and relief sought is highly 

speculative and theoretical.

A declaratory judgment action may only lie where there is a substantial 

controversy involving a genuine conflict of tangible interests. City of Dallas v. 

VSC, LLC, 347 S.W.3d 231, 240 (Tex. 2011) (quotation marks omitted). The 
323509-1 22

Supreme Court holds that there can be no declaratory judgment action where a 

declaration would not settle an actual controversy between parties, or where “the 

relief sought is highly speculative and theoretical.” Id. (emphasis added).

Otherwise the declaration will act as nothing more than an advisory opinion and 

Texas courts lack the legal authority to issue advisory opinions. Texas Ass’n of 

Business v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Board of 

Water Engineers v. city of San Antonio, 283 S.W.2d 722, 724 (Tex. 1955), and 

Southwest Airlines Co. v. Texas High-Speed Rail Authority, 863 S.W.2d 123, 125 

(Tex.App.--Austin 1993, writ denied).

In the instance case, Appellant maintains that there is no adverse party in 

this case, having named no defendants. App. Br. P. 14. Further, Appellant does not 

allege an actual legal dispute or controversy that a declaratory judgment of “actual 

innocence” would solve. Even if the court issued a declaration of actual innocence, 

such a declaration would not qualify the appellant for compensation under The 

Act.

Furthermore, a claimant seeking a declaratory action must already have a 

cause of action at common law or under some statutory or constitutional provision. 

Frasier v. Yanes, 9 S.W.3d 422, 427 (Tex.App.--Austin 1999, no writ). A

declaratory judgment declares the rights and duties or the status of parties in a 

justiciable controversy. This Court has already determined that only those who 
323509-1 23

meet the specific requirements of “actual innocence” set out in The Act have a 

claim that falls within the waiver of immunity provided by The Act. Young, 265

S.W.3d 697. Without a waiver of immunity, there is no right of action. Thus, 

Appellant does not have a valid cause of action under Chapter 37 of the Civil 

Practice and Remedies Code.

Further, the notion that courts are without the power to issue advisory 

opinions is well settled under Texas law. In declaratory judgment actions, an 

essential component of this limitation on courts’ authority is the requirement that 

the defendant have the authority to enforce the statute, provision, or action in 

question. Lone Starr Multi Theaters, Inc. v. State, 922 S.W.2d 295, 297-298 

(Tex.App.--Austin 1996, no writ.) and State v. Margolis, 439 S.W.2d 695, 698 

(Tex.App.--Austin 1969, writ ref’d n.r.e.). When such a party is not the named 

defendant, as is the case in this matter, the court must dismiss the petition for 

declaratory judgment for want of jurisdiction. Id. Because the Travis County 

District Attorney has no authority to grant Appellant a pardon, habeas corpus, a 

finding of “actual innocence,” or compensation under The Act, the trial court 

lacked jurisdiction in this case, even if Appellee were actually named as a 

defendant.

In Appellant’s Second Amended Petition for Declaratory Judgment, he adds 

that he is seeking “a declaratory judgment from this court affirming that Appellant
323509-1 24

is qualified to receive compensation under C.P.R.C. § 103.001.” Appellant’s

Second Amended Petition for Declaratory Judgment pg. 11, ¶ 6.6. S.C.R. 234. 

Appellant continues to assert this declaration in Appellant’s Third Amended 

Petition for Declaratory Judgment pg. 11, ¶7.5. C.R. 429. To qualify for 

compensation, an applicant must proceed and qualify under The Act itself.6 The 

UDJA cannot be used to bootstrap an attempt to qualify to receive compensation 

under The Act because a declaratory judgment is not included as an order 

qualifying one to receive compensation under the statute. As Section 37.008 of the 

UDJA states, “The court may refuse to render or enter a declaratory judgment or 

decree if the judgment or decree would not terminate the uncertainty or 

controversy giving rise to the proceeding.” Tex. Civ. Prac. & Rem. Code §37.008;

See also, Texas Ass’n of Business, 852 S.W.2D at 446 (court may refuse to allow a 

declaratory judgment action where any judgment would purely be advisory and 

non-binding in any manner). Thus, this Court should not entertain Appellant’s 

most recent attempt at these legal fictions but should affirm the dismissal of this 

case.

///

 6 “Whether he is entitled to such compensation under Texas law is a question first for the Texas Comptroller, and 

then for the Texas Supreme Court.” S.C.R 304-305.
323509-1 25

3. ISSUE 3 (Restated)

The Open Courts Provision of the Texas Constitution does not 

provide jurisdiction without a cause of action.

Appellant pleads that he has brought his UDJA claim pursuant to Article 1, 

Section 13, (hereafter “Open Courts Provision”) of the Texas Constitution and that 

the Open Courts Provision ensures that, “[e]xcessive bail shall not be required, nor 

excessive fines imposed, nor cruel and unusual punishment inflicted. All courts 

shall be open, and every person for an injury done him, in his lands, goods, person, 

or reputation, shall have remedy by due course of law.” Tex. Const. art. I, § 13.

While this may be a well-stated proposition, case law does not support this 

application of the Open Courts Provision. This provision “acts as an additional due 

process guarantee granted in the Texas Constitution, and prohibits the legislature 

from arbitrarily withdrawing all legal remedies from anyone having a well-defined 

cause of action under the common law.” Gomez v. Pasadena Health Care 

Management, 246 S.W.3d 306, 312 (Tex.App.--Houston [14th Dist.] 2008, no 

pet.)(emphasis added). Further, “[t]he ‘Open Courts’ provision of the Texas 

Constitution applies only to statutory restrictions on cognizable common law 

causes of action” not to legal fictions, no matter how creative. Peeler v. Hughes & 

Luce, 909 S.W.2d 494, 499 (Tex. 1995)(emphasis added).
323509-1 26

4. ISSUE 4 (Restated)

The civil trial court has no jurisdiction over criminal matters.

Appellant’s UDJA claim regarding requesting a declaration of “actual 

innocence,” fails because a civil court has no jurisdiction to adjudicate and render 

declarations of “rights, status or other legal relationships arising under a penal 

statute.” Morales, 869 S.W.2d at 947. Requests for declaratory judgments 

regarding criminal liability have even been found to constitute frivolous pleadings 

filed for an “improper purpose,” in violation of Texas Civil Practice and Remedies 

Code § 10.001. See Trantham v. Isaacks, 218 S.W.3d 750, 754-755 (Tex.App.--

Fort Worth 2007, pet. denied) (holding declaratory judgment was an improper 

vehicle for determining Appellee’s potential criminal liability).

In this case, Appellant seeks a civil court’s declaration of “actually 

innocence” of a specific crime. By its very nature and on its face, the legal status, 

rights, and other legal relationships arising in the adjudication of, and from, murder 

fall under the purview of Texas penal statutes (in addition to the Texas 

Constitution). The District Attorney does not assert that this Court does not have 

general jurisdiction, under the Texas Constitution to adjudicate both criminal and 

civil matters, but rather, she asserts that neither this Court nor any other Texas 

court has subject-matter jurisdiction to use a civil remedy and proceeding to 

obviate an action that can only be resolved under penal law.
323509-1 27

Additionally, a court of competent jurisdiction, the Texas Court of Criminal 

Appeals held that, “the evidence of [Appellant’s] guilt was legally sufficient.” 

Springsteen v. State, No. AP-74,223 (May 24, 2006). C.R. 11-25. Appellant’s prior 

conviction was not reversed based on a finding of actual innocence, but rather on a 

Confrontation Clause violation. See Id. Despite Appellant’s claims to the contrary, 

the Court of Criminal Appeals held that neither the “Double Jeopardy” nor “Due 

Process Clauses” prohibit the retrial of Appellant for the crime of capital murder in 

this case. Id. Further, there is no statute of limitations for capital murder. See Tex. 

Code Crim. Proc. art. 12.0 l(l)(A); Demouchette v. State, 731 S.W.2d 75, 80 (Tex. 

Crim. App. 1986). Therefore, Appellant could be retried for murder at any time, 

and again, for this reason this court has no jurisdiction to issue a civil declaratory 

judgment of “actual innocence” in this case.

5. ISSUE 5 (Restated)

Appellant cannot establish jurisdiction in state court when a 

federal court has already dismissed his similarly defective 

pleading seeking a declaration of actual innocence.

Prior to filing this lawsuit, Appellant has previously attempted to obtain a 

similar, improper advisory opinion regarding his claim of actual innocence from 

Texas’s federal court system. That is, in May 2013, in the United States District 

Court, Western District of Texas, Austin Division, Appellant filed Appellant’s 

Original Complaint, Request for Declaratory Judgment and Request for 

Mandamus. C.R. 31-37. In a well-reasoned Report and Recommendation of 
323509-1 28

Magistrate Judge Andy Austin, the recommendation stated “that even a finding by 

this Court of Appellant’s actual innocence would not lead to his receipt of 

compensation under the statute, given that the statute requires such a finding take 

place in the context of a habeas corpus proceeding. C.R. 39-51. Thus...the Court 

lacks the authority to redress the wrong on which Springsteen bases this suit.” Id.

Thereafter, Judge Lee Yeakel issued an Order on Report and Recommendation 

dismissing Appellant’s Petition and rendered a Final Judgment Dismissing all 

claims on November 6, 2013. C.R. 53-54.

The federal court lacked jurisdiction because it lacked power to issue an 

order that redressed Appellant’s claimed injury. Likewise, this Court also lacks 

jurisdiction because it cannot issue an order that would redress any injury claimed 

by Appellant because no such cause of action exists for these circumstances. Thus, 

the dismissal should be affirmed.

CONCLUSION AND PRAYER

In conclusion, this court does not have jurisdiction over this action because 

Appellant failed to plead facts necessary to establish a waiver of sovereign 

immunity, has filed a defective pleading on a non-justiciable issue and a federal 

court has already ruled on this issue.
323509-1 29

For these reasons, Appellee, Travis County District Attorney, Rosemary 

Lehmberg, requests that the Court affirm the Trial Court’s judgment and dismiss 

this case for want of jurisdiction.
323509-1 30

CERTIFICATE OF COMPLIANCE

By my signature below, pursuant to Tex. R. App. P. 9.4(i)(3), I hereby certify 

that the foregoing Appellee Rosemary Lehmberg’s Brief contains 7,711 words 

and is compliant as to form pursuant to Tex. R. App. P. 9.4.

/s/ Andrew M. Williams

Andrew M. Williams

Patrick M. Kelly
323509-1 31

CERTIFICATE OF SERVICE

By my signature below, I certify that a true and correct copy of the above and 

foregoing Appellee Rosemary Lehmberg’s Brief was electronically submitted for 

filing pursuant to Third Court of Appeals Local Rule 4 regarding electronic filing 

of documents and/or facsimile on the 9th day of February, 2015, as follows:

Via Electronic Filing

Jeffrey D. Kyle, Clerk of the Court

Third Court of Appeals

P.O. Box 12547

Austin, Texas 78711

Via Electronic Filing

James W. Hackney

48 East Ave.

Austin, Texas 78701

jim@jameshackneylaw.com

Via Electronic Filing

Charles F. Baird

Amber Farrelly

BAIRD ☆ FARRELLY CRIMINAL 

DEFENSE

2312 Western Trails Blvd Ste. 102-A

Austin, Texas 78745

jcfbaird@gmail.com

adfelaw@gmail.com

Via Electronic Filing

Broadus A. Spivey

48 East Ave.

Austin, Texas 78701

bas@spivey-law.com

/s/ Andrew M. Williams

Sherine E. Thomas

Andrew M. Williams

Patrick M. Kelly

Assistant County Attorney