Llano County Defendants’ Reply Brief in Support of Motion to Dismiss /25210 Page 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

DAVID ROY HUTCHINGS,

Plaintiff,

VS.

COUNTY OF LLANO, TEXAS, 

LLANO CENTRAL APPRAISAL

DISTRICT, LLANO INDEPENDENT 

SCHOOL DISTRICT, LLANO 

COUNTY TAX 

ASSESSOR/COLLECTOR, LLANO 

COUNTY EMERGENCY SERVICES, 

424TH JUDICIAL DISTRICT, LLANO 

COUNTY SHERIFF’S OFFICE, JUDGE 

EVAN STUBBS, RONALD 

CUNNIGHAM, BILL BLACKBURN, 

SCOTT DUDLEY, KRIS FOGELBERG, 

MAC EDWARDS, GILBRT BENNETT, 

AND JOYCE GILLOW,

Defendants.

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CASE NO. 1:20-CV-00308-LY

 

LLANO COUNTY DEFENDANTS’ REPLY BRIEF IN SUPPORT OF

MOTION TO DISMISS

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Llano County (which includes the County offices of the Tax 

Assessor/Collector, Emergency Management—incorrectly referred to as Emergency Services, 

and the Sheriff’s Office), County Judge Ronald Cunningham, Sheriff Bill Blackburn, Tax 

Assessor-Collector Kris Fogelberg, Emergency Services Coordinator Gilbert Bennett, and 

District Clerk Joyce Gillow (hereinafter collectively referred to as the “Llano County 

Defendants”), Defendants in the above styled and numbered cause, and file this Reply Brief in 

Support of their Motion to Dismiss Plaintiff’s Original Complaint.
Llano County Defendants’ Reply Brief in Support of Motion to Dismiss /25210 Page 2

I.

REPLY BRIEF

Plaintiff files suit arising from the taxation of certain real property located in Llano 

County, Texas. Plaintiff claims that the real property at issue was not properly subjected to real 

property taxation and thus the alleged efforts by Defendants to collect past due tax payments, 

including a court proceeding, judgment and sale of the property, violated his rights. Plaintiff files 

suit alleging violation of The Racketeer Influenced and Corrupt Organizations (RICO) Act, 

deprivation of due process, violation of the excessive fines clause, violation of the Texas Theft 

Liability Act, fraud, conversion and intentional infliction of emotional distress.

The Llano County Defendants filed their Motion to Dismiss seeking dismissal of all of 

Plaintiff’s claims on the basis of the Tax Injunction Act, Texas Tort Claims Act, and sovereign 

and qualified immunities. In response to these Defendants’ Motion, Plaintiff has filed a response 

asserting only that the individual Defendants failed to establish that they properly assumed and 

swore the appropriate oaths for their respective County offices. [Document 23]. Plaintiff offers 

no response or rebuttal to any of the statutory or common law bases of the Llano County 

Defendants’ Motion. Plaintiff only challenges the individual Defendants’ authority based on a 

lack of evidence of an allegedly required oath of office. Id.

The burden of proving jurisdiction in response to a motion to dismiss filed pursuant to 

Federal Rules of Civil Procedure Rule 12(b)(1) falls to the party asserting jurisdiction. Ramming 

v. United States, 281 F.3d 158, 161 (5th Cir. 2001). To survive a Rule 12(b)(6) motion to dismiss,

the claimant must assert legally and factually plausible claims for relief. Ashcroft v. Iqbal, 556 

U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). There must be enough facts plead 

to "raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

570, 127 S. Ct. 1955, 1974, 167 L.Ed.2d 209 (2007).
Llano County Defendants’ Reply Brief in Support of Motion to Dismiss /25210 Page 3

Plaintiff’s response to the Llano County Defendants’ Motion fails to meet his burden of 

establishing that he has a plausible claim for relief that rises above the speculative level. Without 

any evidentiary basis, Plaintiff questions the legal authority of the individuals named. Plaintiff 

offers no probative corroboration of his conclusory allegation other than to state that “the public 

record is barren of evidence.” [Document 23, p. 2]

Plaintiff fails to offer any legal or factual argument to controvert that his causes of action 

are barred by the Tax Injunction Act, 28 U.S.C. §1341. Pursuant to this statute, federal district 

courts “shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under 

State law where a plain, speedy and efficient remedy may be had in the courts of such State.”

28 U.S.C. §1341. Plaintiff does not dispute or controvert Defendants’ evidence that the State of 

Texas provides for a plain, speedy and efficient remedy for taxpayers who have a grievance 

with state taxation and therefore satisfies the requirements of this Act. See Chapter 41 of the

Texas Tax Code. As such, this Court has no jurisdiction over any of the claims alleged, and 

Plaintiff’s lawsuit should be dismissed. 

Plaintiff fails to offer any legal or factual argument to controvert that his causes of action 

against Llano County are barred by sovereign immunity. As a government unit, Llano County is 

not a proper RICO defendant as a matter of law. Gil Ramirez Grp., L.L.C. v. Houston Indep. Sch. 

Dist., 786 F.3d 400, 413 (5th Cir. 2015). It is additionally entitled to sovereign immunity with 

respect to the state law claims, since there is no express waiver of immunity in either the Texas 

Tort Claims Act or any other statutory basis. A governmental unit is immune from suit unless the

immunity is waived by clear and unambiguous legislative consent. See TEX.GOV’T CODE

§311.034; Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). A plaintiff “must 

affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity.” Dallas 

Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Plaintiff has wholly failed to 
Llano County Defendants’ Reply Brief in Support of Motion to Dismiss /25210 Page 4

do so. 

Plaintiff’s pleadings and response fail to offer any substantive claim that states a plausible 

claim of relief from any of the individual Llano County Defendants and/or that would overcome 

their qualified immunity. There are no factual allegations stated against County Judge Ronald 

Cunningham, Tax Assessor-Collector Kris Fogelberg, and Emergency Services Coordinator 

Gilbert Bennett, while Sheriff Bill Blackburn and District Clerk Joyce Gillow are only accused 

of nondiscretionary acts following the issuance of and implementing a court final judgment. Once 

good-faith entitlement to qualified immunity is pled, the burden shifts to the plaintiff to rebut it. 

Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007); Cousin v. Small, 325 F.3d 627, 632 (5th 

Cir. 2003). To overcome the pleading assertion, Plaintiff must prove (1) violation of a clearly 

established constitutional right by each individual defendant, and (2) that each defendant’s 

conduct was not objectively reasonable in light of clearly established law at the time of the events 

giving rise to the suit. See, e.g., Reichle v. Howards, 566 U.S. 658, 664–65 (2012). Plaintiff fails 

to meet either requirement to overcome qualified immunity for any of the individual Llano 

County Defendants. The individual Llano County Defendants are additionally entitled to 

dismissal of the State law claims pursuant to the irrevocable waiver set out in 

TEX.CIV.PRAC.&REM.CODE §101.106(a).

Plaintiff asserts that there is no evidence that the individual Defendants took the oaths of 

office that allow them to hold their positions. He offers no probative evidence that specific oaths 

were required, that they were not taken, and/or that this alleged failure overcomes the statutory 

and common grounds that serve as the bases for the Llano County Defendants’ Motion to Dismiss. 

As a result, he has failed to meet his burden in providing this Court with evidence of a plausible 

claim for relief and these Defendants’ Motion should be granted. 
Llano County Defendants’ Reply Brief in Support of Motion to Dismiss /25210 Page 5

PRAYER

WHEREFORE, PREMISES CONSIDERED, the Llano County Defendants respectfully 

request that the Court grant their Motion to Dismiss and dismiss all of Plaintiff’s claims pursuant 

to FRCP l2(b)(1) and (6) and the Texas Tort Claims Act. Defendants further request such other 

and further relief to which they may show themselves to be justly entitled, at law and in equity.

Respectfully submitted,

FLETCHER, FARLEY,

SHIPMAN & SALINAS, L.L.P.

2530 Walsh Tarlton Lane, Suite 150

Austin, Texas 78746

(512) 476-5300

FAX (512) 476-5771

By/s/ Joanna Lippman Salinas 

Joanna Lippman Salinas

State Bar No. 00791122

joanna.salinas@fletcherfarley.com

Attorneys for Defendants,

Llano County, County Judge Ronald Cunningham, 

Sheriff Bill Blackburn, Tax Assessor-Collector Kris 

Fogelberg, Emergency Services Coordinator 

Gilbert Bennett, and District Clerk Joyce Gillow
Llano County Defendants’ Reply Brief in Support of Motion to Dismiss /25210 Page 6

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Llano County Defendants’

Reply Brief in Support of Rule 12(b)(6) Motion to Dismiss has been provided to the offices of:

Via Email: drroylyn@yahoo.com

David Roy Hutchings 

12705 Bullick Hollow Road 

Austin, Texas 78726

Via Electronic Service 

Kirk Swinney 

Ryan L. James 

James R. Evans, Jr. 

E. Barry Gaines 

Marjorie I. Bachman 

LOW SWINNEY EVANS & JAMES, PLLC

623 S. Baker Circle 

Leander, Texas 78641

Via Electronic Service 

Cory A. Scanlon, Assistant Attorney General 

Texas Attorney General 

General Litigation Division 

P.O. Box 12548, Capitol Station 

Austin, Texas 78711-2548

Via Electronic Service 

Bridget Robinson 

WALSH GALLEGOS TREVINO 

RUSSO & KYLE, PC

P.O. Box 2156

Austin, Texas 78768

in accordance with the Federal Rules of Civil Procedure, on May 11, 2020.

/s/ Joanna Lippman Salinas 

Joanna Lippman Salinas