No. 03-14-00737-cv

_____________________________________

IN THE THIRD COURT OF APPEALS

AUSTIN, TEXAS

_____________________________________

CHASE CARMEN HUNTER, APPELLANT/PLAINTIFF v. DAVID

MATTAX1 IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF

INSURANCE, AND THE TEXAS DEPARTMENT OF INSURANCE,

APPELLEES/DEFENDANTS

APPELLANT’S REPLY BRIEF WITHOUT ORAL ARGUMENT

From Cause D-1-GN-13001957 In The 250th District Travis

County, Texas, The Honorable John K. Dietz Presiding

Chase Carmen Hunter, pro se

340 S. Lemon Ave. #9039

Walnut, CA 91789

Telephone: 707-706-3647

Facsimile: 703-997-5999

Chase_Hunter@yahoo.com

1 Texas Rule of Appellate Procedure 7.2(a): Substitution: Eleanor

Kitzman was named as one intended initial “Defendant” but her

term as Commissioner of Insurance ended on about May 30, 2013.

Her successor was unknown. “John/Jane Doe in his/her official

capacity as interim commissioner of insurance or commissioner of

insurance” was added to the initial petition as a second

intended “Defendant”. Later, Julia Rathgeber was appointed to

replace Eleanor Kitzman and “Julia Rathgeber” was added to this

lawsuit in place of “John/Jane Doe”. David Mattax recently

replaced Julia Rathgeber in the official capacity as

Commissioner of Insurance. Both “Eleanor Kitzman” and “Julia

Rathgeber” have been replaced by “David Mattax”.

ACCEPTED

03-14-00737-CV

4833576

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/9/2015 4:35:37 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/9/2015 4:35:37 PM JEFFREY D. KYLE Clerk
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CERTIFICATION.

I, Chase Carmen Hunter, state under penalty of perjury

that the following facts and argument are true and

correct.

April 9, 2015

STATEMENT OF THE CASE.

1.This petition for appeal (“Appeal”) addresses very

simple issues.

2.In June 2013, Hunter filed an Original Verified

Motion To Proceed In Forma Pauperis (“Motion IFP”) in

the Travis County Texas District Court (“TCTDC”)

along with her Original Verified Petition for

Declaratory Judgment (“Pet DJ”).

3.Pursuant to Texas Rule of Civil Procedure (“TRCP”)

145a, The Clerk of the TCTDC was required to issue

citations upon receipt of Hunter’s Motion IFP. But

she did not.

4.Subsequently, Hunter filed a Motion to Reinstate

(“MTR”). The TCTDC was required to hold a hearing

pursuant to TRCP 165a(3) and did not.
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5.This is reversible error because the outcome would be

very different if the TCTDC had complied with TRCP

165a(3): a hearing on the MTR would establish that

the record proves that Hunter made many, many

attempts to get the TCTDC Clerk to perform required

ministerial duties and to get the TCTDC to perform

required ministerial duties. No reasonable person

could agree that Hunter’s lawsuit was correctly

dismissed for “want of prosecution” under the

circumstances when the TCTDC Clerk and the TCTDC

abandoned many significant TRCP’s (and abandoned,

inter alia, the United States Constitution Due

Process Clause) and blocked Hunter’s lawsuit from

moving forward.

6.Texas Rule of Appellate Procedure (“TRAP”) 44.1(a)

states that “[n]o judgment may be reversed on appeal

on the ground that the trial court made an error of

law unless the court of appeals concludes that the

error complained of: (1) probably caused the

rendition of an improper judgment; or (2) probably

prevented the appellant from properly presenting the
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case to the court of appeals.” The record shows that

both TRAP 44.1(a)(1) and (2) apply to this appeal.

7.The Appellee Brief (“Appee Brief”) defends the

dismissal order (i.e. August Order) using the only

defense the Appellees could have asserted if they had

filed a response to Hunter’s MTR in the TCTDC and if

they had appeared at a hearing pursuant to TRCP

165a(3).

8.When Hunter filed her MTR in the TCTDC in September

2014, Hunter served her MTR upon the Appellees and

Cynthia Morales, their legal counsel. The Appellees

were permitted by TRCP to file a response to Hunter’s

MTR and were permitted to schedule a hearing on the

MTR. But they did not.

9.They therefore waived their right to assert any

defense of Hunter’s MTR for the first time in this

appellate record.

10. Please, take judicial notice of the underlying

record because it shows that the Appellees did not

participate in the lawsuit in the TCTDC. However,

please, take judicial notice of Texas Third Court of
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Appeals (“TTCA”) case 03-13-00468-CV which shows that

the Appellees participated in that case which arose

from this TCTDC case. They filed a response in TTCA

case 03-13-00468-CV on about September 20, 2013.

Therefore, the Appellees had actual knowledge of this

TCTDC case since July 2013, when Hunter filed TTCA

case 03-13-00468-CV. The Appelees refused to defend

this lawsuit it in the TCTDC.

11. The Appellees cannot use the Appee Brief to make a

record for the first time of how they would have

defended the MTR in the TCTDC if they had defended

the MTR in the TCTDC.

12. Waiver is an intentional relinquishment of a known

right or intentional conduct inconsistent with

claiming that right. See Palladian, 165 S.W.3d at 434;

see also Jernigan v. Langley, 111 S.W.3d 153, 156

(Tex.2003); Sun Exploration & Prod. Co. v. Benton,

728 S.W.2d 35, 37 (Tex.1987).

NO STANDING AND WAIVER TO DEFEND THE TCTDC CLERK

13. Further, the Appee Brief defends the TCTDC Clerk’s

actions and inactions, and the Appellees have no
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standing or right to do so. The Appellees are a

governor appointee and a state agency and are

represented by the Texas Attorney General. The TCTDC

Clerk is a publicly-elected official. Please, take

judicial notice. The Texas Constitution does not

establish the Texas Attorney General as the legal

counsel to publicly-elected officials. See Texas

Constitution Article 4, Section 22.

14. Also, the record in TTCA case 03-13-00468-CV shows

that the clerk of this court sent a letter dated

September 6, 2013, to the TCTDC Clerk requesting that

the “District Clerk’s Office” file a response to

Hunter’s petition for a writ of mandamus. See Exhibit

A. The “District Clerk’s Office” did not file a

response. Please, take judicial notice. Therefore,

the TCTDC Clerk’s Office knowingly defaulted on

Hunter’s petition for a writ of mandamus and

therefore admitted that the TCTDC Clerk violated,

among other things, TRCP 145a, and admitted that

Hunter did not agree by telephone to pay the TCTDC

Clerk’s filing fee.
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15. Even if the Appellees had a right to defend the

TCTDC Clerk’s action and inaction as described in

this record, the Appellees waived their right, if any,

to defend the TCTDC Clerk. If the Appellees wanted

to assert any right to defend the TCTDC Clerk, they

were required to do so in September 2013, in TTCA

case 03-13-00468-CV. But they did not. See ¶ 12 above

for citation on “waiver”.

NOTWITHSTANDING THE FACT THAT THE UNDERLYING RECORD AND

TTCA CASE 03-13-00468-CV ESTABLISH THAT THE APPELLEES

WAIVED THEIR RIGHT TO DEFEND HUNTER’S MTR FOR THE FIRST

TIME IN THIS APPEAL, HUNTER FURTHER REPLIES AS FOLLOWS:

FIRST FALSE AND FRAUDULENT POINT MADE IN APPEE BRIEF

16. Page ii of Appee Brief falsely states that

Appellant’s Brief (“Appnt Brief”) seeks mandamus

relief; falsely implying that Hunter is somehow not

entitled to mandamus relief in a direct appeal.

However, TRAP 44.1 specifically permits mandamus

relief: “If the error affects part of, but not all,

the matter in controversy and that part is separable
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without unfairness to the parties, the judgment must

be reversed and a new trial ordered only as to the

part affected by the error.” (mandamus relief shown

with double underline). TRAP 44.4 also specifically

permits mandamus relief: “(b) Court of Appeals

Direction if Error Remediable. If the circumstances

described in (a) exist, the court of appeals must

direct the trial court to correct the error. The

court of appeals will then proceed as if the

erroneous action or failure to act had not occurred.”

17. The Appnt Brief asks that this Court “grant this

petition”. See Appnt Brief ¶ 33, request (1).

18. This court can grant this petition for appeal and

direct the lower court to perform ministerial duties,

as it did in an order this Court entered on January

21, 2015 (“January Order”). Also TRAP 43.2 (d)

explicitly authorizes this Court to “remand the case

for further proceedings” which constitutes mandamus

relief.

19. This Court has already sua sponte granted Hunter

mandamus relief in its January Order.
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20. The Appee Brief erroneously relies upon Pinnacle

Gas Treating, Inc. v. Read, 13 S.W.3d 126, 127

(Tex.App.-Waco 2000, no pet.) and falsely states that

the court in Pinnacle Gas Treating, Inc. held that a

party could not seek mandamus relief in a direct

appeal. See p. 9 of Appee Brief. The truth is that

this Pinnacle Pinnacle Gas Treating, Inc. appeal was

dismissed because the appeal was interlocutory.

See Pinnacle Gas Treating, Inc. v. Read, 13 S.W.3d

126, 127 (Tex.App.-Waco 2000, no pet.). Further, the

Appee Brief erroneously relies upon Brown v. Burks,

01-10-000219-cv, 2001 WL 2418475, at *2, n.1(Tex. App.

- Houston [1st Dist.] May 25, 2011, no pet.) to

falsely state that the Brown v. Burks court could not

consider an attempted appeal as a writ of mandamus.

See p. 9 of Appee Brief. The truth is that the Brown

v. Burks court denied the appeal because it was an

unauthorized interlocutory appeal: it was an appeal

of non-final order(s).

21. Therefore, it is obvious that the Appee Brief

contains blatant and intentional false statements in
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p. ii and p. 9 and in any other part that claims that

this Court should not grant mandamus relief.

SECOND FALSE AND FRAUDULENT POINT MADE IN APPEE BRIEF

22. The Appee Brief falsely claims that Hunter’s NOA

was untimely.

23. The Appellees waived any defense based on

untimeliness of Hunter’s NOA. The Appellees did not

promptly assert the defense of untimeliness. The

Appellees’ only immediate objection to Hunter’s NOA

was a contest (“Contest”) of Hunter’s Motion IFP

which Appellees filed erroneously with this court in

about December 2014. (TRCP requires such a Contest

to be filed in the TCTDC.) Waiver is an intentional

relinquishment of right. See Palladian, 165 S.W.3d at

434; see also Jernigan v. Langley, 111 S.W.3d 153,

156 (Tex.2003); Sun Exploration & Prod. Co. v. Benton,

728 S.W.2d 35, 37 (Tex.1987) which establish that the

Appellees waived their right to assert the defense of

untimeliness.

THIRD FALSE AND FRAUDULENT POINT MADE IN THE APPEE

BRIEF
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24. Appee Brief contains a false statement on page 1 in

which it states that Hunter “advances no argument nor

provides any authority in support of her contention

that such order should be reversed”. See Appee Brief

p. 1.

25. The Appnt Brief establishes that the TCTDC

abandoned the U.S. Constitution Due Process Clause

and state laws and refused to perform required

ministerial duties in the underlying lawsuit. As a

result, Hunter’s underlying lawsuit did not move

forward. Subsequently, the underlying court

performed the discretionary ministerial duty of

dismissing Hunter’s lawsuit only because Hunter’s

lawsuit did not move forward (i.e. “want of

prosecution”). These are reversible errors because

without these errors, the final result of this

lawsuit would be significantly different: it would

not have been dismissed for want of prosecution. And

if it was dismissed for want of prosecution; a

hearing on Hunter’s MTR would have resulted in the

TCTDC reinstating Hunter’s lawsuit.
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26. Appnt Brief establishes on pages 8 and 9 that the

underlying court refused to hold a hearing on

Hunter’s Motion To Reinstate (“MTR”); and such a

hearing is required pursuant to TRCP 165a(3).

27. It is reversible error that the TCTDC, inter alia,

failed to conduct the required hearing on Hunter’s

MTR.

FOURTH FALSE AND FRAUDULENT POINT MADE IN THE APPEE

BRIEF

28. Page 2 of Appee Brief falsely states that “[t]his

Court has previously heard and denied such requests

for [mandamus] relief in Appellant’s mandamus

proceeding, In re Chase Carmen Hunter, No. 03-13-

00468-CV”.

29. This is a false statement for many reasons. This

court’s case 03-13-00468-CV was a petition for a writ

of mandamus that was filed in about July 2013. This

present case is a petition for appeal that was filed

in about November 2014. The issues have changed from

July 2013 to November 2014. The issues may look

similar, and they may or may not be similar. But the
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look of similarity does not establish that the

requests for relief in this appeal are barred.

30. And even if such requests for relief were

previously “heard and denied” in this court’s case

03-13-00468-CV, the legal standards for a petition

for a writ of mandamus (this court’s case 03-13-

00468-CV) and for a petition for appeal (this court’s

case 03-14-00737-CV) are not the same. As one

example of the difference, a petition for a writ of

mandamus seeks relief regarding required ministerial

judicial duties; whereas a petition for appeal has a

much broader scope of available relief. As another

example, a petition for a writ of mandamus requires

that the petitioner have no other remedy available;

whereas, a petition for appeal is no so restricted.

In fact, Hunter has a guaranteed right to file this

petition for appeal. The same issues presented in

such petition for a writ of mandamus may be presented

again in a petition for appeal after an appealable

order is entered.
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31. The second paragraph on page 9 of Appee Brief,

which carries over to page 10, is irrelevant to this

petition for appeal. This is a petition of appeal of

the TCTDC order dated August 25, 2014. And the

issues regarding the TCTDC’s Clerk refusal to perform

ministerial duties is subordinate to the main issue

which is the petition for appeal of the August Order.

However, if this court grants this appeal and

reverses the August Order, the TCTDC Clerk and TCTDC

judges will likely continue to refuse to perform

ministerial duties; and the underlying lawsuit will

continue to stagnate absent the granting of mandamus

relief. But first and foremost, this is a petition

for appeal of the August Order. It is this court’s

sole discretion to grant mandamus relief. However,

in the interest of judicial economy, if this court

reverses the August Order and does not grant mandamus

relief, Hunter will likely need to appeal a second

subsequent TCTDC dismissal order which the TCTDC

could enter a second time on the basis of “want of

prosecution” arising only from the TCTDC and TCTDC
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Clerk’s failure to perform ministerial duties, and

not due to any fault of Hunter’s.

32. Morales’ statement on page 9 of Appee Brief which

states that “there is no evidence in the record that

Appellant filed an actual petition for writ of

mandamus against the clerk in the trial court which

was not ruled on by the district court judge ---

instead, she filed a motion seeking such relief...”

is without logic. See Appee Brief p. 9. On page 3 of

the Appee Brief, Morales states that Hunter “filed a

document entitled, ‘Verified Motion Directly Filed

With Judge John K. Dietz for Writ of Mandamus And

Prohibition Directed To the Honorable Amalia

Rodriguez-Mendoza, Clerk of the District Court of

Travis County Texas’. CR83-97” It is well

established that a pleading filed with a court is

classified based on the relief requested. Therefore,

a reasonable person would conclude that a “motion

filed [directly with the judge] seeking such

[mandamus] relief” is a “petition for writ of

mandamus”. Further, there may not always be a record
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in the TCTDC’s “clerk’s record” of motions and

petitions filed directly with Judge Dietz because

such motions and petitions are not filed with the

TCTDC Clerk but are filed directly with the judge and

a judge may not accept such documents for filing:

“When a district clerk refuses to accept a pleading

presented for filing, the party presenting the

document may seek relief by filing an application

for writ of mandamus in the district court. TEX.

GOV'T CODE § 24.011. However, that is not likely to

help the relator here. If the district clerk

refused to file a writ of mandamus against the

prison official, the district clerk is not likely

to accept a writ of mandamus filed against her

office. When a district clerk refuses to accept a

pleading for filing, the party should attempt to

file the pleading directly with the district judge,

explaining in a verified motion that the clerk

refused to accept the pleading for filing. TEX.R.

CIV. P. 74. Should the district judge refuse to

accept the pleading for filing, this Court would

have jurisdiction under our mandamus power to

direct the district judge to file the pleading.”

see In re Bernard, 993 S.W.2d 453, 454-544 (Tex.

App.-Houston [1st Dist.] 1999, orig.

proceeding)(O’Connor, J., concurring.)

33. Take notice that In re Bernard uses the phrases

“application for writ of mandamus”, “refused to file

a writ of mandamus”, and “verified motion that the

clerk refused to accept the pleading for filing” and

does not indicate that mandamus relief directed to
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the TCTDC Clerk can only be considered by the TCTDC

if Hunter’s document sent directly to Judge Dietz

used the specific phrase, “petition for writ of

mandamus”. see In re Bernard, 993 S.W.2d 453, 454-544

(Tex. App.-Houston [1st Dist.] 1999, orig.

proceeding)(O’Connor, J., concurring.)

34. Because the record shows that Judge Dietz did not

inform Hunter of whether or not he “accepted [her]

pleading for filing”, it is possible that Hunter’s

motions and petitions filed directly with Judge Dietz

were not accepted for filing.

35. But the record proves that Judge Dietz ignored

Hunter’s request for mandamus relief directed to the

TCTDC Clerk (regardless of whether such requests were

classified as a motion or a petition). And it is

irrelevant if Hunter’s document sent directly to

Judge Dietz was titled “petition for writ of

mandamus” (as Morales contends was required) or

titled “application for writ of mandamus”, “writ of

mandamus”, or “verified motion” which are phrases

established in In re Bernard. see In re Bernard, 993
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S.W.2d 453, 454-544 (Tex. App.-Houston [1st Dist.]

1999, orig. proceeding)(O’Connor, J., concurring.)

36. Further, whether or not “there is [no] evidence in

the record that Appellant filed an actual petition

for writ of mandamus against the clerk in the trial

court which was not ruled on by the district court

judge --- instead, she filed a motion seeking such

relief...” is irrelevant to Hunter’s Appeal of the

August Order because the August Order is appealable

and is being appealed. And the issues regarding “the

petition for writ of mandamus against the clerk” are

not the direct subject of the August Order. The fact

that the TCTDC refused to hold a hearing required

pursuant to 165a(3) is the direct subject of the

August Order.

37. Further, the TCTDC record proves that Hunter

repeatedly filed documents in which she attempted to

move her lawsuit forward and that she was blocked by

the Clerk of the TCTDC who refused to perform

ministerial duties. There is no factual basis to sua
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sponte dismiss Hunter’s lawsuit for “want of

prosecution”.

38. In addition, Morales makes the ridiculous statement

beginning on page 9 and continuing on page 10 of

Appee Brief that “nor is there any evidence that

Appellant complied with the requirements of the

Travis County Local Rules to assign her motion to

Judge Dietz or set such the matter for a hearing so

that it might be ruled on.” This statement is

ridiculous because Travis County Civ. Dist. Ct. Loc.

Rule (“TCTDC Loc. Rule”) 2.6 sets forth the procedure

for assigning a specific judge to a specific case.

It does not establish a procedure for seeking relief

directly from a judge when the Clerk refuses to

perform ministerial duties. TRCP 74 states that

“[w]hen a district clerk refuses to accept a pleading

for filing, the party should attempt to file the

pleading directly with the district judge, explaining

in a verified motion that the clerk refused to accept

the pleading for filing.” TRCP 74 does not specify

which “district judge” the party must attempt to file
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said pleading. Any judge in the TCTDC, upon receipt

of receiving a request for relief under such

circumstances has no basis upon which he can ignore

having received said request for relief.

39. In addition, TCTDC Loc. Rules 2.1, 2.2, 2.4, and

2.6, do not establish requirements; they establish

procedures; TCTDC Loc. Rule 2.2 establishes that a

party can set a matter for a hearing online using

civilcourtsonline.org but this online service is only

available to attorneys and Hunter is acting pro se

and is not an attorney; and TCTDC Loc. Rule 2.2

establishes that a party can set a matter for a

hearing by making an oral request. The facts show

that that TCTDC Clerk would not respond to Hunter’s

faxes sent, would not answer the telephone when

Hunter called, and would not return Hunter’s

telephone messages. See Appnt Brief p. 13, ¶ 29.

40. Finally, the Appellant’s Appendix page 109 shows

that Hunter made a written request directly with

Judge Dietz that he hold a hearing on her MTR.

FIFTH FALSE AND FRAUDULENT POINT MADE IN APPEE BRIEF
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41. On pages 3 and 4 of the Appee Brief, Morales

falsely manipulates the issues. See Appee Brief pp

3-4. Morales claims that the TCTDC Clerk sent Hunter

a request (“Request”) for a “copy of the petition for

each party to be attached to the citation and the

name and address of each party whom Appellant wished

to have served...” and that Hunter characterized this

Request as the TCDC Clerk’s manipulation of the

record and “to cause confusion.” See Appee Brief pp

3-4. Morales manipulates the facts to paint Hunter

in a false light by falsely stating that “[n]o

response to this letter [request] or any completed

issuance request form appears in the record CR1-262;

SuppCR1-10.” Morales falsely twists the facts to

make it look like the only reason why the TCTDC Clerk

did not issue citations is because she did not

receive a “response to this letter or any completed

issuance request form”.

42. The TCTDC Clerk was required to provide Hunter with

services without first requiring Hunter’s response to

this Request.
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43. The TCTDC’s Request falsely implies that the TCTDC

did not have the full names and addresses of the

Defendants and did not have copies of the Pet DJ to

attach to the citations. The Pet DJ shows the full

name and address of the Defendants to be served on

pages 2 and 3. See Appnt Appendix pp. 8 and 9 which

show Pet DJ, p 2, ¶ 2; and p. 3 ¶ 7. The Defendants’

full names are shown on the first page of the Pet DJ.

See Appnt Appendix p. 7. In addition, the Defendants

to be served are public officials of Texas, who are

located in Travis County, and their names and address

are public information. Therefore, the TCTDC Clerk

already knew the Defendants’ full names and addresses.

Therefore, there was no reason to request the full

name and address of the Defendants to be served. In

addition, neither the TRCP nor the TCTDC Loc. Rules a)

require the plaintiff to provide the TCTDC Clerk with

more than one original document, or b) authorize the

TCTDC Clerk to require an indigent party to provide

copies of the original complaint. Notwithstanding,

Hunter included two copies of the Pet DJ and two
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copies of the Motion IFP in the same mailing envelope

when Hunter filed her original Pet DJ and Motion IFP

with the TCTDC Clerk. Therefore, there was no reason

to request copies of Hunter. Further, the TCTDC

Clerk had sent Hunter many emails telling Hunter that

she would not issue citations only because Hunter had

not paid the TCTDC Clerk’s filing fee. See Appnt’s

Appendix p. 102 as one example. The TCTDC Clerk

falsely inserted this Request into the record to

manipulate the facts. The fact is that the TCTDC

Clerk had everything she needed to issue citations

and refused to issue citations only because Hunter

had not paid the TCTDC Clerk’s filing fee. Page 102

of the Appnt Appendix, which is dated June 25, 2013,

does not ask Hunter to provide the full names and

addresses of the parties to be served and does not

ask Hunter to provide additional copies.

IRRELEVANT WORDS IN THE APPEE BRIEF

44. From the second paragraph of page 4 to the middle

of page 5 of Appee Brief: these words are irrelevant

to this appeal. They seem to provide only procedural
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history of this court’s case 03-13-00468-CV. Hunter

does not admit or deny the accuracy of these words

because the petition for a writ of mandamus in TTCA

case 03-13-00468-CV is not relevant to this direct

appeal.

45. The second paragraph on page 5 of Appellee’s Brief

is irrelevant to this appeal. Hunter does not admit

or deny the accuracy of these words because they are

not relevant to this direct appeal.

SIXTH FALSE AND FRAUDULENT POINT MADE IN THE APPEE

BRIEF

46. The first paragraph of page 6 of Appee Brief

contains a false statement. The Appellee states:

“[o]n September 26, 2014, thirty-two days after the

dismissal of the case, Appellant filed a document

entitled...” The use of the word “filed” is false.

Pursuant to TRCP 21a(b)(1), a document is filed when

it is deposited in the mail. Hunter did not file said

document on September 26, 2014. Instead, said

document was marked by the TCTDC Clerk as having been

received on September 26, 2014.
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47. The second paragraph of page 6 of Appee Brief

falsely states, “[i]f the motion had been timely

filed on September 24...” said motion to reinstate

(“MTR”) was timely filed. This is a false statement

because the “motion” (i.e. MTR) was timely filed. The

notice of dismissal was sent to Hunter by mail.

Pursuant to TRCP 4 and 21a(c), any deadline to

perform an action is extended by three days when

notice of the chance to perform such action is made

my mail. Therefore, Hunter’s MTR was timely if

deposited in the mail no later than 33 days after

August 25, 2014. Therefore, if Hunter deposited her

MTR in the mail on or before September 27, 2014, her

MTR was timely filed pursuant to TRCP 4, 21a(c), and

21a(b)(1). Therefore, if the TCTDC Clerk received

Hunter’s MTR on September 26, 2014, it was received

in advance of the filing deadline and was timely

filed. Because Hunter’s MTR was timely filed, then

according to the Appee Brief, footnote 10, Hunter’s

Notice of Appeal (“NOA”) was timely filed.

SEVENTH FALSE AND FRAUDULENT POINT MADE IN APPEE BRIEF
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48. The Appellees’ footnote 8 contains manipulations of

the facts to assert that Hunter has lied about the

date of mailing of her MTR. This footnote claims that

“[n]o such records or any other proof of date of

mailing appear in the record of this case.” However,

Hunter does not need to provide any proof of date of

mailing because Hunter’s MTR was timely filed when

she deposited her MTR in the mail on or before

September 27, 2014, pursuant to TRCP 4, 21a(c), and

21a(b)(1). And we know that Hunter deposited her MTR

in the mail on or before September 27, 2014, because

the TCTDC Clerk indicated receiving Hunter’s MTR on

September 26, 2014.

EIGHTH FALSE AND FRAUDULENT POINT MADE IN APPEE BRIEF

49. The Appellees’ footnote 9 contains assertions that

Hunter has lied about sending the letter to Judge

Dietz that is shown in Hunter’s Appendix p. 109

(“Dietz Letter”). The Appellee implies that Hunter

must be lying about having sent this Dietz Letter on

the basis that this Dietz Letter does not appear in

the “clerk’s record”. Hunter’s initial brief and
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appendix were drafted by Hunter and certified under

penalty of perjury by Hunter. Calling Hunter a liar

does not make Hunter a liar. Also, the Appee Brief

admits that the Appellees believe that the TCTDC

Clerk made an error with the first version of the

“clerk’s record” provided in this Appeal (“First

Clerk’s Record”). The Appee Brief states that the

Appellees believe that the TCTDC Clerk omitted parts

of the “clerk’s record” from the First Clerk’s Record.

See Appee Brief, Footnotes 5 and 7. Obviously, the

First Clerk’s Record did not provide this court with

all the documents in the “clerk’s record”: the TCTDC

Clerk provided a supplemental “clerk’s record” in

this Appeal, upon the Appellees’ request, and such

supplement included documents specifically requested

by the Appellees that pre-dated the First Clerk’s

Record. The Appee Brief admits that it believes that

the TCTDC Clerk made errors with the First Clerk’s

Record but also relies upon the admittedly erroneous

First Clerk’s Record to assert that Hunter lied about

sending the Dietz Letter.
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50. Even if Hunter lied about sending the Dietz Letter,

(but Hunter certifies that she did not lie about this

or anything else); Judge Dietz was required by

statute (TRCP 165a(3)) to hold a hearing on Hunter’s

MTR. There is no statute or rule that required Hunter

to perform any task to prompt Judge Dietz to perform

a required ministerial duty.

51. This court’s record proves that the TCTDC contacted

Hunter in January 2015 by telephone to schedule a

hearing that this court directed it to hold and that

it scheduled said hearing without first giving Hunter

an opportunity to participate in such scheduling.

See motions filed by Hunter with this Court on

February 3, 4, and 5th, 2015, in which she asks for

this Court’s assistance with scheduling said hearing.

This proves that the TCTDC is capable of contacting a

party to schedule a hearing and is capable of

scheduling a required hearing without first requiring

any specific action by the movant. TRCP 165a(3) does

not state that the TCTDC was required to hold a
- 29 -

hearing on Hunter’s MTR only if the Hunter took

specific action.

52. In addition, the Dietz Letter (Appnt Appendix p.

109)(and attachments) were mailed via Certified,

Restricted Delivery, Return Receipt Requested, firstclass mail (see below) and faxed directly to Judge

Dietz as shown on the Dietz Letter. These documents

would appear in the “clerk’s record” only if Judge

Dietz gave them to the TCTDC Clerk to file.

53. There are many reasons why the Dietz Letter may not

be included in the “clerk’s record”. There is no

basis to call Hunter a liar.
- 30 -

NINTH FALSE AND FRAUDULENT POINT MADE IN APPEE BRIEF

54. The top of page 7 of Appee Brief contains false

statements. The Appellant did not file a NOA on

December 1, 2014. Instead, the TCTDC Clerk indicated

that she received Hunter’s NOA on December 1, 2014.

Pursuant to TRCP 4, 21a(c), and 21a(b)(1); the date

of filing is the date the item is deposited in the

mail. Please, take judicial notice of the Texas

Supreme Court calendar for November 27th and November

28th, 2014, which were a Thursday and Friday. The

TCTDC was closed from November 27th to November 30th,

2014. If Hunter mailed her NOA on November 24, 2014,

and if the TCTDC Clerk received the NOA on December 1,

2014, the number of days during which the TCTDC was

open from November 24, 2014, to December 1, 2014, not

including the date of mailing, and including December

1, 2014, was three days. The NOA was apparently

entered by the TCTDC Clerk only three business days

after Hunter states that she mailed it. Also,

conspicuously and suspiciously, the TCTDC Clerk did

not make part of the “clerk’s record” the mailing
- 31 -

envelopes she received from Hunter. Obviously, the

TCTDC Clerk preserved only parts of the record and/or

provided this court with only parts of the record.

55. Hunter also filed her NOA with this court

electronically on November 24, 2014. Therefore,

pursuant to TRAP 25.1(a), Hunter’s NOA was filed with

the TCTDC on November 24, 2014. The Appellee admits

that Hunter’s NOA was timely filed on November 24,

2014. See Appee Brief p. 7, Footnote 10. The

Appellees’ assertion that Hunter’s NOA was untimely

filed on December 1, 2014, with the TCTDC (see Appee

Brief p. 7, top) contradicts Appellees’ assertion

that Hunter’s NOA was timely filed on November 24,

2014. See Appee Brief p. 7, Footnote 10.

56. Obviously, the Appee Brief takes this court on a

futile circular journey of contradiction and

confusion with the sole purpose of deceiving this

court.

TENTH FALSE AND FRAUDULENT POINT MADE IN APPEE BRIEF

57. The Appee Brief implies that Hunter agreed to pay

the TCTDC Clerk’s filing fee. See Appee Brief p 3,
- 32 -

footnote 3. And the basis for this false assertion is

the existence of a document, apparently signed by

someone who does not provide her last name, who

states that Hunter agreed by telephone to pay the

TCTDC Clerk’s filing fee. See Appee Brief p. 3,

footnote 3 and Appnt Appendix p. 128.

58. Let’s first look at the facts. Appnt Appendix p.

128 is dated June 19, 2013. It states that Cristina M.

had a telephone conversation with Hunter on June 7,

2013, during which Hunter agreed to pay the TCTDC

Clerk’s filing fee. But this Appendix p. 128 is

fraudulent. Appnt Appendix p. 102 shows an email

Hunter received from Brooke Daniel who worked at the

TCTDC Clerk’s office that is dated June 25, 2013. It

states that Hunter’s “Affidavit of Inability to pay

costs was not approved.” The Appnt Appendix pp. 98-

99 shows a two-page fax dated June 16, 2013, which

Hunter sent to every court district in TCTDC in which

Hunter states that she believes that her Pet DJ and

motions have been lost and not docketed; and Hunter

asks every district to “look for my civil petition
- 33 -

and three motions and docket them expeditiously.” The

electronic correspondence and facsimiles to and from

the TCTDC Clerk establish that the Appnt Appendix p.

128 is false and fraudulent.

59. Hunter has always stated that Appnt Appendix p.

128 which states that Hunter agreed by telephone to

pay the TCTDC Clerk’s filing fee contains false

statements and is fraudulent. Hunter never agreed on

June 7, 2013, (or any other date) to pay the TCTDC

Clerk’s filing fee. Hunter filed a Motion IFP. Hunter

filed no documents indicating that she agreed to pay

the TCTDC Clerk’s filing fee. The TCTDC Clerk’s

record shows no instances in which Hunter sent

payment to the TCTDC Clerk. An unverified statement

made by someone other than Hunter (Cristina M.) which

states that Hunter agreed to pay the TCTDC Clerk’s

filing fee has no evidentiary value.

60. Further, the record in TTCA case 03-13-00468-CV

shows that the clerk of this court sent a letter

dated September 6, 2013, to the TCTDC Clerk

requesting that the “District Clerk’s Office” file a
- 34 -

response to Hunter’s petition for a writ of mandamus.

See Exhibit A. The “District Clerk’s Office” did not

file a response. Please, take judicial notice.

Therefore, the TCTDC Clerk’s Office knowingly

defaulted on Hunter’s petition for a writ of mandamus

and therefore admitted that the TCTDC Clerk violated,

among other things, TRCP 145a, and that Hunter did

not agree by telephone to pay the TCTDC Clerk’s

filing fee.

ELEVENTH FALSE AND FRAUDULENT POINT MADE IN APPEE BRIEF

61. Page ii falsely states that Hunter waived

complaints on appeal due to inadequate briefing. It

is not clear exactly what the Appellees classify as

inadequate briefing. The Appnt Brief follows the

format dictated by the TRAP and clearly sets forth

violations of, inter alia, more than one significant

TRCP and clearly establishes reversible error.

62. Page ii falsely states that Hunter made no showing

of reversible error. The fact that the TCTDC failed

to conduct the required hearing pursuant to TRCP

165a(3) is just one specific reversible error.
- 35 -

Perhaps the Appnt Brief did not explicitly refer to

this as “reversible error”. But a “reversible error”

is a “reversible error” regardless of what label it

is given. Names of things do not affect what they

really are. See e.g. “A rose by any other name would

smell as sweet.” William Shakespeare's play Romeo

and Juliet; "When I see a bird that walks like a duck

and swims like a duck and quacks like a duck, I call

that bird a duck." - James Whitcomb Riley, American

poet, writer, and best-selling author.

TWELFTH FALSE AND FRAUDULENT POINT MADE IN APPEE BRIEF

63. The bottom of page 13 of Appee Brief contains false

and illogical statements and argument: “...are

premised on Appellant’s erroneous assertion that she

is indigent; an assertion which has been found to be

false, as evidence by the trial court’s finding of

February 19, 2015. SuppCR3-4” First, the trial court

did not find such an assertion to be “false”. Please,

take judicial notice. Second, Hunter filed her

Motion IFP in June 2013. The TCTDC Clerk was required

pursuant to TRCP 145a to issue citations in 2013. No
- 36 -

order entered by the TCTDC dated in February 2015 is

relevant to the TCTDC Clerk’s failure to issue

citations in June 2013. For one reason, TRCP 145(d)

requires either the TCTDC Clerk or the adverse party

to contest Hunter’s Motion IFP in writing and

requires that a hearing be held on the contest. And

no contest was filed at any time in the TCTDC. The

Appellees waived their right to assert that Hunter is

not indigent. Waiver is an intentional

relinquishment of right. See Palladian, 165 S.W.3d at

434; see also Jernigan v. Langley, 111 S.W.3d 153,

156 (Tex.2003); Sun Exploration & Prod. Co. v. Benton,

728 S.W.2d 35, 37 (Tex.1987) which establish that the

Appellees waived their right to assert that Hunter is

not indigent.

64. Also, the statement in the Appee Brief at the top

of page 3 is false. It states, “A notation appears on

the copy of the motion in the record, which reads,

‘Approved with payment plan. 6/18/13.’ CR71”

(footnote reference omitted) It is false for many

reasons. One main reason it is false is that this
- 37 -

statement seems to falsely imply that is relevant to

this appeal whether or not the TCTDC Clerk has

authority to “approve” a Motion IFP. This is an

appeal of the August Order, not of the TCTDC Clerk’s

refusal to perform ministerial duties. Also, the

Appee Brief is attempting to use this appeal to

assert the defense it would have asserted during a

hearing on Hunter’s MTR. But the Appellees knowingly

refused to defend Hunter’s MTR. Waiver is an

intentional relinquishment of right. See Palladian,

165 S.W.3d at 434; see also Jernigan v. Langley, 111

S.W.3d 153, 156 (Tex.2003); Sun Exploration & Prod.

Co. v. Benton, 728 S.W.2d 35, 37 (Tex.1987) which

establish that the Appellees waived their right to

assert the defense for the first time in this appeal

that they were permitted to assert in the TCTDC.

SUMMARY

65. The Appee Brief is a compilation of lies and false

argument. Lying and making false argument are not

legal strategies. They are crimes (known as perjury)

and violations of Texas Disciplinary Rules of
- 38 -

Professional Conduct, including but not limited to

Rule 3.03 “Candor Toward the Tribunal”.

PRAYER.

66. Hunter respectfully requests that this Court take

jurisdiction of this case, and that upon reviewing

this matter: (1) grant this Petition, (2) reverse

the Order of Dismissal, (3) direct the TCTDC to

direct the Clerk to (a) issue citations in TCDC case

D-1-GN-13001957, (b) cause service of process upon

the defendants in TCDC case D-1-GN-13001957, (c)

provide Hunter with all customary services provided

any other party without charge, (d) provide Hunter

with free access to http://www.idocket.com so that

Hunter can view her case progress, or in the

alternative, send Hunter a weekly statement by

facsimile at 703-997-5999 that accurately reflects

the activity of any cause pending in which Hunter is

a party, (4) direct the TCTDC to enter an order that

transfers this lawsuit to this Court for

adjudication since the TCTDC has refused to comply

with the United States Constitution and the
- 39 -

aforementioned TRCP’s and has refused to perform its

ministerial duties to adjudicate this lawsuit since

June 2013, (5) award Hunter her reasonable

attorney's fees and costs, and (6) award Hunter such

further relief to which she may be entitled.

Respectfully Submitted,

/s/ Chase Carmen Hunter

Chase Carmen Hunter

Appellant, pro se

340 S. Walnut Ave. #9039 :: Walnut, CA 91789

Tel: 707-706-3647 :: Fax: 703-997-5999

Email: Chase_Hunter@yahoo.com

CERTIFICATION

I, Chase Carmen Hunter, certify that I have reviewed

this Reply and conclude that every factual statement in

the Reply is supported by competent evidence included

in the appendix or record.

______________________

Chase Carmen Hunter

CERTIFICATION

I, Chase Carmen Hunter, swear under penalty of perjury

that the document shown in the one exhibit is true and

accurate.

______________________

Chase Carmen Hunter
- 40 -

CERTIFICATION IN COMPLIANCE WITH TEX. R. APP. P

9.4(i)(2)(B) and 9.4(i)(3)

I, Chase Carmen Hunter, certify that this Reply

contains 6,829 words and 37 pages.

Chase Carmen Hunter

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing Reply was served upon the parties shown below

as indicated:

Cynthia A. Morales, Assistant Attorney General

By Efile on April 9, 2015

Cynthia.Morales@texasattorneygeneral.gov

Facsimile: (512) 477-2348

Chase Carmen Hunter
COURT OF APPEALS

THIRD DISTRICT OF TEXAS

P.O. BOX 12547, AUSTIN, TEXAS 78711-2547

www.3rdcoa.courts.state.tx.us

(512) 463-1733

J. WOODFIN JONES, CHIEF JUSTICE

DAVID PURYEAR, JUSTICE

BOB PEMBERTON, JUSTICE

JEFF L. ROSE, JUSTICE

MELISSA GOODWIN, JUSTICE

SCOTT K. FIELD, JUSTICE

JEFFREY D. KYLE, CLERK

September 6, 2013

Ms. Sara Shiplet Waitt

Tx Dept Of Insurance

P.O. Box 149104

Austin, TX 78714-9104

* DELIVERED VIA E-MAIL *

The Honorable Amalia Rodriguez-Mendoza

Civil District Clerk

Travis County Courthouse

P. O. Box 1748

Austin, TX 78767

* DELIVERED VIA E-MAIL *

RE: Court of Appeals Number: 03-13-00468-CV

Trial Court Case Number: D-1-GN-13-001957

Dear Counsel and Honorable Amalia Rodriguez-Mendoza:

The Court requests that real party in interest and the District Clerk’s Office file a response to

relator’s petition for writ of mandamus that was filed in this court July 15, 2013. Please file your

response with the Clerk of this Court on or before Friday, September 20, 2013.

Very truly yours,

JEFFREY D. KYLE, CLERK

BY:Amy Strother

 Amy Strother, Deputy Clerk

cc: Ms. Chase Carmen Hunter

Style: In re Chase Carmen Hunter

 v.

FILE COPY

EXHIBIT A