NO. 04-14-00551-CV
IN THE COURT OF APPEALS

FOR THE FOURTH JUDICIAL DISTRICT OF TEXAS

SAN ANTONIO, TEXAS PABLO SOLIZ § APPELLANT § V. § § STATE OF TEXAS § APPELLEE

APPEAL FROM 79 thJUDICIAL DISTRICT COURT

BROOKS COUNTY, TEXAS TRIAL COURT NO. 14-02-16542-CV

APPELLANT’S MOTION FOR RECONSIDERATION EN BANC **Rick Soliz Attorney at Law**  **Texas Bar Number 00785013 P.O. Box 4051**  **Houston, Texas 77210 713-228-1900**  **Counsel Pro Bono**

ORAL ARGUMENT REQUESTED

1 ACCEPTED 04-14-00551-cv FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 11/5/2015 11:11:01 PM KEITH HOTTLE CLERKTO THE HONORABLE JUSTICES OF SAID COURT:

**Now comes, Pablo Soliz** , **Appellant in the above entitled and numbered cause, by and through his pro bono attorney of reco**  **rd, Rick Soliz, and submits this First Motion for Reconsideration En Banc. For**  **good cause, Appellant shows as follows.** 
ISSUES PRESENTED FOR RECONSIDERATION EN BANC **Appellant submits this response to the opinion issu ed by the Court on July**  **22, 2015, and subsequent denial of a motion for reh earing and requests that the**  **Court consider the following issues: Issue 1: The Court of Appeals erred in finding tha** **t Appellant should have done the impossible of enrolling in required training wh**  **en not allowed by those conspiring to remove him from office and by holding** **that any particular summary judgment defense need be stated in the remo**  **val statute itself. Issue 2: The Court of Appeals erred in finding tha** **t Appellant is not entitled to his requested and constitutionally protected right**  **to a jury trial. Issue 3: The Court of Appeals erred in ruling that**  **Appellant has not claimed a due process violation, that he must use the words “**  **due process” when pointing out a due process violation and that he is required**  **to do either or the issue is waived.** 

2I. SUMMARY **Constable Soliz has more education and training tha n other elected law**  **enforcement officer in Brooks County or adjacent co unties. Historically in**  **Texas, elected constables had 2 years from taking o ffice to receive required**  **training. And prior to that, permanently appointed constables need never reach**  **certification. Constable Soliz has received some f ormal training at Sam Houston**  **State University since taking office. Constable So liz has a 4 year college degree**  **and additional training. He has been certified as a Texas licensed peace officer**  **and has served multiple jurisdictions through emplo yment and election.** 
**Brooks County is one of the most impoverished in th e state. And it has**  **always lacked educated, competent and moral law enf orcement. Many law**  **enforcement agents, including several cops, an elec ted district judge and an**  **elected district attorney have been arrested and co nvicted in recent times in**  **Brooks County alone. All of who had one thing in co mmon – formal complaints**  **against them by Constable Soliz. When an agent wit h morals happens to appear**  **as with Appellant, an "all points bulletin" is put out to destroy him. How dare**  **someone question inept and law violating authority in South Texas! By way of**  **just a few specific examples pertaining to Brooks C ounty's recent history: An** 

3**elected district attorney has been disbarred and ja iled. Prior to his election, he** 

**was trained and personally assisted as first assist ant, by the elected district**  **attorney he later ran against and beat. The mentor is now the district judge, who**  **replaced the last judge who was prosecuted, convict ed and removed from the**  **bench for life. The current judge recused himself from this proceeding since**  **Constable Soliz simply knows too much history about the judge, the court's**  **inner workings and related offices. The sheriff du ring these times was booted**  **out of town by votes and investigated as was his su ccessor. They avoided**  **prosecution multiple times as do most local cops wh o are merely fired, demoted**  **or transferred among the various local agencies, in stead of prosecuted. In the**  **last few months though, more than half a dozen cops in the very small county**  **seat and only city, have been merely fired for ille gal and felonious conduct or**  **actually prosecuted and sent to jail. And more inv estigation is at hand of several**  **at multiple levels. And of course the appellee's o ffice's head has been indicted**  **for serious crimes as has our governor. I'm sure I have failed to mention others.**  **And that gets us to Constable Soliz. Persecuted ov er the years by those I have**  **mentioned above for investigating and complaining a bout their illegal conduct,**  **and now persecuted for lack of training by the indi cted attorney general**  **opposing this appeal. Training denied to him by th ose who reported him to** 

4**appellee's offices and asked for removal proceeding s. This is somewhat of a** 

**joke since Constable Soliz has more experience and training than anyone else on**  **any local police force and including the bloating n umber of unnecessary state**  **and federal officers in the area now tripping over themselves. Moreover, it does**  **not take any legal action to note that the law cann ot require the impossible.**  **Constable Soliz was specifically targeted and illeg ally prevented from enrolling**  **in the training facility Brooks County utilizes - b ased on Constable Soliz's age –**  **according the head of the training academy. As an aside, why hasn't anyone**  **checked training and test records for all other pea ce officers in the County,**  **including the illiterate ones. Could it be no one would be left to police the area?**  **This is selective and vindictive prosecution. None of what I say is meant to**  **disparage the good work of opposing counsel, who ha s been as professional and**  **competent as can be, under the circumstances.**

II.
ARGUMENT, AUTHORITY AND EVIDENCE **The standard upon summary judgment is, “whether, af ter considering all**  **evidence in a light most favorable to the** nonmoving party **, the moving party is entitled to judgment as a matter of law. Celotex C**  **orp. v. Catrett** , **477 U.S. 317, 106 S. Ct. 2548, 2552 (1986). The Supreme Court ou** **tlined three principals that**

5**would determine if summary judgment was appropriate : 1) The party moving for** 

**the summary judgment must meet an initial burden of showing no genuine issue**  **of material fact exists** , **2) The substantive law governing the cases will determine what issues are material. 3) If the movin**  **g party meets its burden, the party opposing the motion must present affirmative**  **evidence and must produce more than a**  mere scintilla **of evidence to overcome the motion; and 4) The court does not need to look to the entire record to**  **establish whether a genuine issue exists requiring trial, but need only look to**  **those portions of the record to which the parties point to the court.**  Id **at 2552-55; See also 3** ATLA’s Litigating
Tort Cases **§ 31.3. A fact is material if its resolution migh t affect the outcome**  **of the suit. See Anderson v. Liberty Lobby, Ins**

. **, 477 U.S. at 248. Rule 56(c) also requires the dispute be “genuine”.** 

**When facts are unavailable to the nonmovant. If a n onmovant shows by**  **affidavit or declaration that, for specified reason s, it cannot present facts**  **essential to justify its opposition, the court may: (1) defer considering the motion**  **or deny it; (2) allow time to obtain affidavits or declarations or to take**  **discovery; or (3) issue any other appropriate order**

**.** See**Fed. R. Civ. P. 56(d) (1- 3). Constable Soliz has a 4 year college degree and** **additional training. He has been certified as a Texas licensed peace officer.** 

6**A constable is elected to hold office “for four yea rs and until” his or her** 

**successor is elected and qualified. Tex. Const. V, sec. 18(a). Where the**  **constitution prescribes the qualifications for hold ing a particular office, the**  **legislature lacks the power to change or add to tho se qualifications unless the**  **constitution provides that power. Luna v. Blanton , 478 S.W. 2**  **nd 76 (Tex. 1972).** 

V.

TRAINING **The government alleges that Constable Soliz is not licensed because he**  **did not obtain training in the appropriate amount o f time. The Constable replies**  **that he trained and was licensed long ago therefore there is a fact dispute.**  **Constable Soliz worked as an elected, licensed peac e officer and hired licensed**  **peace officer for multiple agencies. That training and licensure does not**  **disappear in thin air as if it never happened simpl y because of the passage of**  **time. Are elderly people and their accomplishments to be discarded as if they**  **never occurred? As mentioned, Constable Soliz has more education, training**  **and experience than any other constable in Brooks C ounty and possibly all of**  **South Texas. Additionally, Brooks County belongs t o the Coastal Bend Council**  **of Governments therefore Brooks County officials al ways look to Del Mar**  **Police Academy in Corpus Christi as their home scho ol for training purposes.** 

7**And Brooks County officials are reimbursed expenses for training by Brooks** 

**County. Constable Soliz met with Del Mar’s Directo r Stan Repka who refused**  **to provide an application to Constable Soliz and to ld him to look elsewhere**  **because of primarily because of his age and the fac t that he would not be able to**  **pass the rigorous physical tests during the trainin g. Constable Soliz then asked**  **Brooks County Commisioner’s Court and head of commi ssioner's court, County**  **Court Judge Raul Ramirez for financial support, jus t like they provide for every**  **other peace officer in the county when it deals wit h mandatory mandatory**  **training, in order to attend any alternative academ y in order to begin and**  **complete his required training. Mr. Ramirez, who w as not reelected and is**  **leaving office with the his county government in fi nancial ruin for acts during**  **his tenure, blocked and denied financial assistance at any alternative school and**  **instead later reported this Constable to the attorn ey general’s office due to lack**  **of training. Such actions commenced these proceedi ngs. Constable Soliz’s**  **income, less than $800.00 a month constable salary, was completely insufficient**  **to pay for travel expenses and additional training costs. Coincidentally, the**  **government about the same time, also took his place of business without**  **compensation for the construction of I 69 through t own.** 

8**Later, on April 23, 2013, Constable Soliz traveled to St. Mary’s** 

**University in San Antonio, TX to appear for a previ ously scheduled appointment**  **to complete the TCOLE (Texas Commission on Law Enfo rcement) State Test in**  **order to recertify. Constable Soliz had studied fo r two months for this test and**  **paid the $20.00 fee. Mr. Soliz was not allowed to participate in the exam by the**  **same entity that scheduled his appointment, presuma bly because he had not**  **completed training.**
**So to summarize, there is clearly a disputed fact r elative to training.**  **Appellee has not disproved Appellant's fact of bein g disallowed and blocked**  **from obtaining his training. Constable Soliz's eff orts to obtain additional**  **training were stifled by gatekeepers who held the g ate shut. Therefore, it was in**  **every way impossible to comply with any mandatory t raining, if any, during the**  **time period in question.**
**What are our appellate courts created for if not to rectify situations like**  **this from the hands of abusive government efforts t o prevent training and**  **remove a qualified, constitutionally elected public servant?**  **The trial court erred by refusing to recognize the fact issues raised by**  **Appellant regarding his defenses, of not being prov ided with funds for training** 

9**and not being admitted to training based on age, su fficient to materially dispute** 

**movant’s summary judgment evidence.**
VI.

ARGUMENT AND AUTHORITIES IN ORDER

ISSUE 1 **Appellant cannot be expected to do the impossible. The law must allow**  **for the mandated procedures to be possible. Some t hings do not have to be**  **written into the law but are common judicial sense. What should Constable**  **Soliz do? Should he begin arresting those who prev ent him from fulfilling the**  **training mandate. Or should he shoot his way into the training facility and sit**  **down for classes? For the government to mandate ac tions, then purposely single**  **out an individual to prevent the individual from fu lfilling those actions, is**  **beyond sinister and plainly illegal. This defense has a built in fact dispute that**  **Appellee must disprove to prevail upon summary judg ment. The appellee must**  **disprove Appellant's allegation or show there is no dispute of a material fact. To**  **interpret the statute as this court has done makes the statute unconstitutional.**  **Appellant cannot contest what he cannot foresee unt il he sees it as he has here.**  **Defendant, as the nonmovant, chooses his own defens e and is not required**  **to prove his defense of not being allowed to enroll in the academy and not being** 

10**provided with money to obtain training and licensur e, in response to a motion** 

**for summary judgment. But the mere raising of a fac t issue is enough to defeat**  **the summary judgment,** American Pertrofina. Inc. v. Allen **, 887 S.W.2 nd**  **829 (Tex. 1994);**  Brownlee v. Brownlee **, 665 S.W. 2 nd**  **111 (Tex. 1984). In the case at hand, appellant and appellee (in their evid**  **ence submitted of appellant’s complaint letter to the attorney general’s office p**  **rior to the 270 days) both did in fact raise a fact issue regarding appellant’s defen**  **se sufficient to materially dispute movant’s summary judgment evidence.**  **Appellant points to the mentioned evidence regardin g appellant’s defense**  **that the training academy director refused to allow him to apply for admission**  **based on age and refused to accommodate a disabilit y. And that the Brooks**  **County Judge (appellee’s affiant in the motion for partial summary judgment)**  **refused to provide funding, provided to all other r egularly, for appellant to**  **attend mandatory training that is the subject of th is court’s judgment. I stress**  **that such funding was commonplace for Brooks County officials attending**  **mandatory training. And the movant representing th e Texas attorney general’s**  **office presented evidence as well that defendant wr ote to the attorney general**  **complaining of this, prior to the 270 day deadline to receive training for**  **licensure (and this may be the best evidence to rev iew). Of note is the fact that** 

11**appellant had already been through this same academ y years earlier and had** 

**obtained his license after such enrollment and comp letion of academy training.** 
ISSUE 2 **The government often utilizes motions such as this to prevent its**  **opposition from getting his day in court. What do they have to lose? When are**  **they sanctioned for doing so? Constable Soliz prob ably wins his jury trial on the**  **merits in this case and the government is aware of this. What jury would not**  **apply common sense and heavy weight to the prohibit ion appellant faced while**  **trying to comply with training? This court has pre vented such jury reasoning.**  **Not only does the government file frivolous motions to the government courts**  **on a regular basis, but it simultaneously knowingly protects lawbreaking**  **government agents from exposure at trial under oath**

**.** ISSUE 3 **Appellant has raised due process as a violation bel ow. Not only does**  **appellant clearly raise due process in his answer t o the lawsuit, but the trial court**  **preferred and held a hearing on this motion and app ellant raised all the issues**  **expressed here, and answered the court's questions and more at such hearing.**  **Appellant did so by way of explanation of his point s in his response to the**  **motion for partial summary judgment. This discussi on was recorded and has** 

12**been provided to this court. But beyond that, when is not ruling correctly on a** 

**motion for summary judgment, and not ruling correct ly on appeal, therefore not**  **providing a litigant with his properly requested ju ry trial, not a due process**  **violation? This court may on its own volition, rec ognize and rule upon due**  **process violations. It may not, though, pretend th ey do not exist if not raised.**  **Such rulings are left for other issues not of const itutional dimentions. For this**  **court to allow such a travesty is in and of itself a due process violation.**  **Appellate courts exist to rectify errors below and such is not occurring here.** 
PRAYER **Wherefore, premises considered, Appellant prays tha t this motion for**  **reconsideration en banc be unconditionally granted, that this Court grant the**  **relief sought (allow a trial on the merits to proce ed) or set the matter for oral**  **argument and after argument, reverse the judgment o f the courts below and**  **remand the case for trial on the merits.**

CERTIFICATE OF SERVICE **This is to certify that a true and correct copy of the attached and foregoing**  **document will be served on opposing counsel.**

13CERTIFICATE OF COMPLIANCE

**The undersigned does hereby certify the word count in the body of motion**  **to be well under the maximum limit. Respectfully submitted,**  **/s/ Rick Soliz**  **T.B.N. 00785013 P.O. Box 4051**  **Houston, Texas 77210 713-228-1900**  **Pro Bono Attorney for Appellant**

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