NO. 04-15-00012-CV 

THE COURT OF APPEALS 

FOR THE FOURTH DISTRICT OF TEXAS 

SITTING AT SAN ANTONIO, TEXAS 

JOHN E. RODARTE SR. 

Appellant, 

V. 

BEXAR COUNTY, TEXAS AND SHERIFF RALPH LOPEZ, ET AL 

Appellees 

_________________________________________________________________ 

BRIEF OF APPELLEES, 

BEXAR COUNTY, TEXAS AND SHERIFF RALPH LOPEZ, ET AL 

_________________________________________________________________ 

ORAL ARGUMENT NOT REQUESTED 

 _________________________________________________________________ 

Clarkson F. Brown 

State Bar No. 00798082 

Assistant Criminal District Attorney 

-Civil Division 

101 W. Nueva, Suite 735 

San Antonio, Texas 78205-3030 

Telephone: (210) 335-3918 

Telecopier: (210) 335-2773 

Attorney for Appellees 

ACCEPTED

04-15-00012-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

8/3/2015 1:15:10 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 08/03/15 1:15:10 PM KEITH E. HOTTLE Clerk
i 

IDENTITY OF PARTIES AND COUNSEL 

Appellant Appellees

John E. Rodarte Sr. Bexar County, Texas And Sheriff 

Ralph Lopez, et al 

Trial and Appellate Counsel Trial and Appellate Counsel 

Pro-Se Clarkson F. Brown 

T.D.C.J. 1263270 SBN: 00798082 

Clements Unit 101 W. Nueva, Suite 735 

9601 Spur 591 Assistant Criminal District 

Amarillo, Texas 79107 Attorney—Civil Division 

 San Antonio, Texas 78205 

210-335-3918 

cbrown@bexar.org 

 
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TABLE OF CONTENTS 

PAGE(S) 

IDENTITY OF PARTIES AND COUNSEL ................................................................... i

TABLE OF CONTENTS .................................................................................................. ii

INDEX OF AUTHORITIES ........................................................................................... iii

BRIEF OF APPELLEES BEXAR COUNTY, TEXAS AND SHERIFF RALPH 

LOPEZ, ET AL ........................................................................................................ 1

STATEMENT OF THE CASE ........................................................................................ 1

ISSUES PRESENTED ...................................................................................................... 1

STATEMENT OF THE FACTS ...................................................................................... 2

ARGUMENTS AND AUTHORITIES ............................................................................ 2

A. Appellant has no grounds for a Bill of Review ........................................................ 2

CONCLUSION .................................................................................................................. 5

PRAYER FOR RELIEF ................................................................................................... 5

CERTIFICATE OF SERVICE ........................................................................................ 6

APPENDIX ......................................................................................................................... 7
iii 

INDEX OF AUTHORITIES 

CASES PAGE(S) 

Rodarte v. Bexar County, 2013 Tex. LEXIS 812 (Tex. Sept. 27, 2013) ............................. 1 

Rodarte v. Bexar County, 2013 Tex. LEXIS 1027 (Tex. Dec. 6, 2013) ............................. 1 

Rodarte v. Bexar County, 2013 Tex. App. LEXIS 5576 (Tex. App. San Antonio May 8, 

2013) ................................................................................................................................ 1 

Mabon Ltd. v. Afri-Carib Enters., 369 S.W.3d 809, 812 .................................................... 2 

Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam) .................................. 2, 3 

Orion Enterprises, Inc. v. Pope, 927 S.W.2d 654, 658 (Tex. App.--San Antonio 1996, 

writ ref’d.) ........................................................................................................................ 4 

RULES 

Section 101.001 et. al. of the Texas Civil Practice and Remedies Code, and the Texas 

Tort Claims Act (“TTCA”) .............................................................................................. 2 

 
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BRIEF OF APPELLEES BEXAR COUNTY, TEXAS AND SHERIFF RALPH 

LOPEZ, ET AL 

TO THE HONORABLE FOURTH COURT OF APPEALS: 

Bexar County, Texas and Sheriff Ralph Lopez, et al, appellees and defendants 

below, respectfully submits this brief for your consideration. 

I.

STATEMENT OF THE CASE

This is an appeal from the denial of a Bill of Review by the Honorable Michael E. 

Mery on October 20, 2014. This same trial court case was appealed to this court and 

dismissed for lack of jurisdiction on May 8, 2013 in Rodarte v. Bexar County, 2013 Tex. 

App. LEXIS 5576 (Tex. App. San Antonio May 8, 2013). That opinion was appealed to 

the Texas Supreme Court and petition for review was denied on September 27, 2013 in 

case number 13-0388 at Rodarte v. Bexar County, 2013 Tex. LEXIS 812 (Tex. Sept. 27, 

2013) with a motion for rehearing denied at Rodarte v. Bexar County, 2013 Tex. LEXIS 

1027 (Tex. Dec. 6, 2013). On July 16, 2015, this Court denied appellees’ Motion to 

Dismiss the Appeal. 

II. 

ISSUES PRESENTED 

1. Is appellant entitled to a Bill of Review for the actions taken by Judge Fred 

Shannon when he dismissed appellant’s case on December 5, 2015? 

 No. Appellant makes the incorrect assumption that Judge Shannon acted based on 

some motion by the defendants and thus he has a due process claim for failure to be 

served. Judge Shannon acted on his own, thus plaintiff has no right to a Bill of Review. 
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Judge Shannon was within his powers as a trial judge to review the file and reverse 

previous rulings and dismiss the case. 

III. 

STATEMENT OF THE FACTS

Plaintiff filed suit seeking unspecified damages against Bexar County via his 

claim against the Sheriff’s Department, the Adult Detention Center and Sheriff Lopez for 

negligence under Section 101.001 et. al. of the Texas Civil Practice and Remedies Code, 

and the Texas Tort Claims Act (“TTCA”), for injuries he claims he sustained while riding 

on a transport bus from the Bexar County Justice Center to the Bexar County jail. 

Plaintiff was an inmate housed at the Bexar County Adult Detention Center. 

Plaintiff alleges that on December 1, 2003, he was riding in a county transport bus taking 

him from the justice center back to the jail when the bus hit a pothole or curb, which 

caused him to fall off his seat and resulted in injury. Plaintiff contends he fell from his 

seat because the bench seat was not properly bolted to the floor. 

IV. 

ARGUMENTS AND AUTHORITIES 

A. Appellant has no grounds for a Bill of Review 

"A bill of review is an equitable proceeding, brought by a party seeking to set 

aside a prior judgment that is no longer subject to challenge by a motion for a new trial or 

direct appeal." Mabon Ltd. v. Afri-Carib Enters., 369 S.W.3d 809, 812 (citing Caldwell v. 

Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam)). Ordinarily, a plaintiff must plead 

and prove: "(1) a meritorious defense to the underlying cause of action, (2) which the 
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plaintiff [was] prevented from making by the fraud, accident or wrongful act of the 

opposing party or official mistake, (3) unmixed with any fault or negligence on [its] own 

part." Id. (quoting Caldwell, 154 S.W.3d at 96). But "when a bill-of-review plaintiff 

claims a due process violation for no service [of process] or notice [of a default 

judgment], it is relieved of proving the first two elements" and must only prove that its 

own fault or negligence did not contribute to cause the lack of service or notice. Id. 

Therefore, appellant must prove that he failed to receive notice of some document 

that resulted in an adverse judgment being taken against him. In this case, he cannot 

prove this element. 

Appellee never filed any document asking Judge Shannon to take the actions he 

did on the day of trial. Judge Shannon did this sua sponte. On December 5, 2011, the 

same day the case was set to begin trial, trial Judge Shannon reviewed and granted 

appellee’s no evidence motion for summary judgment because appellant failed to produce 

any summary judgment evidence of injury for the court. (CR 29). Appellees were given 

a copy of the Order dismissing the case when they appeared in court for the trial. 

Appellant admits on page 13 of his brief that he received Judge Shannon’s order 

dismissing the case. Thus, his whole argument is based on the false assumption that he 

was not served some document and Judge Shannon’s ruling was based on that. This is 

incorrect. As reflected in the CR, there was no document filed seeking any such relief 

from Judge Shannon. Nor was there a hearing held that appellant was not a part of. 

Judge Shannon used his inherent power to review the file and change previous rulings in 
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the case and dismissed the matter. 

 A trial court has plenary power over, and therefore the jurisdiction and authority to 

reconsider, not only its judgment, but also its interlocutory orders until 30 days after the 

date a final judgment is signed. Orion Enterprises, Inc. v. Pope, 927 S.W.2d 654, 658 

(Tex. App.--San Antonio 1996, writ ref’d.). In Orion, relators, a corporation, its 

employee and another corporation, sought a writ of mandamus ordering respondent trial 

court judge to exercise his plenary power and jurisdiction to reconsider another judge’s 

order denying motions to transfer venue in a products liability and wrongful death action. 

Id. at 656. The court held that, like any other order, an order denying a motion to transfer 

may be considered at any time within the trial court’s plenary power. See id. at 658-59 

(stating “[p]lenary power is that which is full, entire, complete, absolute, perfect, 

unqualified”). 

 Similar to the situation in Orion, Judge Shannon exercised his plenary power and 

reconsidered and reversed a previously denied motion prior to final judgment. (CR 29). 

Judge Shannon’s December 5, 2011 Order granting appellee’s no evidence motion for 

summary judgment was a proper exercise of the trial court’s plenary power. The fact that 

appellant does not like the ruling or wrongly assumes Judge Shannon was acting pursuant 

some motion filed by appellees is not grounds for being granted a bill of review. 

Appellant also seems to be making some argument that what occurred at the 

hearing on his bill of review somehow entitles him to a bill of review. While it is unclear 

from his brief what he is arguing, whatever it is does not entitle him to a bill of review. 
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 On October 24, 2014 Judge Michael E. Mery heard appellant’s bill of review. 

Appellant was present and allowed to make his arguments. (CR 49-50) Judge Mery 

denied the bill of review, a fact appellant acknowledges on page 7 of his brief. 

Therefore, he has no basis to contend the bill of review hearing occurred without his 

participation or that he did not know of the ruling. Judge Mery heard the arguments and 

ruled that the bill of review should not be granted. This was the proper ruling based on 

the arguments set forth above. Thus, nothing occurring on October 24, 2014 entitles him 

to a bill of review. The ruling Judge Mery made was correct and should be upheld. 

V.

CONCLUSION 

 This Court should deny this appeal. Plaintiff cannot meet the one element needed 

to prove his entitlement to a bill of review. That is, he cannot show his due process was 

denied due to lack of service. His mistaken belief that Judge Shannon acted based on 

some motion filed by appellees is not grounds for a bill of review. Judge Mery correctly 

denied the bill of review because no facts supported the grating of the bill. 

VI. 

PRAYER FOR RELIEF

 For these reasons, appellees respectfully request that this Court deny this appeal 

and uphold the denial of the bill of review. Further, appellees pray that this court grant 

all other relief to which it is entitled in law and equity. 

Respectfully submitted, 

/s/Clarkson F. Brown 

Clarkson F. Brown 
-6-

State Bar No. 00798082 

Assistant Criminal District Attorney 

 - Civil Division 

101 W. Nueva, Suite 735 

San Antonio, Texas 78205-3030 

Telephone: (210) 335-3918 

Telecopier: (210) 335-2773 

Attorney for Defendants –Appellees Bexar 

County, Texas and Sheriff Ralph Lopez, et al 

CERTIFICATE OF SERVICE 

I do hereby certify that a true and correct copy of the above and foregoing 

document has been served on this 3rd day of August, 2015 to the following: 

John E. Rodarte Sr. CMRRR 7014 1200 0001 2586 7820 

TDCJ 1263270 

Clements Unit 

9601 Spur 591 

Amarillo, TX 79107-9606 

Pro Se 

Fourth Court of Appeals By Efile 

300 Dolorosa, 3rd Fl., Suite 3200 

San Antonio, Texas 78205 

/s/Clarkson F. Brown 

Clarkson F. Brown 

 
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NO. 04-15-00012-CV 

THE COURT OF APPEALS 

FOR THE FOURTH DISTRICT OF TEXAS 

SITTING AT SAN ANTONIO, TEXAS 

JOHN E. RODARTE SR. 

Appellant, 

V. 

BEXAR COUNTY, TEXAS AND SHERIFF RALPH LOPEZ, ET AL 

Appellees 

_________________________________________________________________ 

BRIEF OF APPELLEES, 

BEXAR COUNTY, TEXAS AND SHERIFF RALPH LOPEZ, ET AL 

_________________________________________________________________ 

APPENDIX 

1. Judge Shannon’s Order-CR 29 

2. Order Denying Bill of Review-CR 49 

3. Judge’s Notes regarding Bill of Review Hearing-CR 50 

 
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