No. 04-14-00922-CV 

In the Court of Appeals

Fourth Court of Appeals District of Texas

San Antonio, Texas

____________________

JOHN E. RODARTE

Appellant,

v.

TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,

TEXAS CHILD PROTECTIVE SERVICES

Appellee.

____________________

From the 57TH Judicial District Court, Bexar County, Texas

Trial Court No. 2010-CI-12625

Honorable Antonia Arteaga, Judge Presiding

APPELLEE’S BRIEF

____________________

REQUEST FOR ORAL ARGUMENT

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for Civil 

Litigation

ANGELA V. COLMENERO

Chief, General Litigation Division

JASON CONTRERAS

Texas Bar No. 24032093

Assistant Attorney General

Office of the Attorney General

General Litigation Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 463-2120

(512) 320-0667 (FAX)

Email: 

Jason.Contreras@texasattorneygeneral.gov

COUNSEL FOR APPELLEE

ACCEPTED

04-14-00922-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

7/17/2015 10:49:31 AM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 07/17/15 10:49:31 AM KEITH E. HOTTLE Clerk
IDENTITIES OF PARTIES AND COUNSEL

Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellee 

herein provides this Court with the following list of parties and the names and 

addresses of all trial and appellee counsel:

Appellant: Appellee:

John E. Rodarte, Sr. Texas Department of Family and

Protective Services; Texas Child 

Protective Services1

Trial and Appellate Counsel: Trial and Appellate Counsel:

John E. Rodarte, Sr., Pro Se Jason T. Contreras

TDCJ # 1263270 Assistant Attorney General

Clements Unit State Bar No. 24032093

9601 Spur 591 Office of the Attorney General

Amarillo, Texas 79107-9606 P.O. Box 12548

Austin, Texas 78711-2548

Phone: 512-463-2120

Fax: 512-320-0667

1 Plaintiff incorrectly named Defendant-Appellee as the “Child Protective and Regulatory Services.” CR 1. 

It was previously named the Texas Department of Protective and Regulatory Services, and is currently named the 

Texas Department of Family and Protective Services. A reference in law to the Department of Protective and 

Regulatory Services means the Department of Family and Protective Services. Act of June 1, 2003, 78th Leg., R.S., § 

1.27, 2003 Tex. Gen. Laws 611, 641.

ii

 
TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL ........................................................II

TABLE OF CONTENTS.........................................................................................III

APPENDIX............................................................................................................. IV

INDEX OF AUTHORITIES.....................................................................................V

STATEMENT OF THE CASE..............................................................................VII

STATEMENT REGARDING ORAL ARGUMENT ..........................................VIII

ISSUES PRESENTED............................................................................................ IX

STATEMENT OF THE FACTS ...............................................................................1

SUMMARY OF ARGUMENT.................................................................................3

ARGUMENT.............................................................................................................4

A. Appellant Obtained All Of The Relief Sought In His Lawsuit 

And His Tort Claims Against DFPS Are Barred By Sovereign 

Immunity .....................................................................................................4

B. The Discovery Rule Does Not Apply And Cannot Serve As A 

Basis To Permit Appellant To Proceed With Any Tort Claims 

Against Appellee .........................................................................................7

C. No Due Process Rights Attach To The Denial of Production 

Of The 1995 Investigation File....................................................................8

PRAYER....................................................................................................................9

CERTIFICATE OF COMPLIANCE.......................................................................10

CERTIFICATE OF SERVICE ................................................................................11

iii
APPENDIX

CR 1–4, Original Petition for Lawsuit........................................................TAB A

CR 11–19, Defendant’s Plea to the Jurisdiction.........................................TAB B

CR 29, Order Granting Defendant’s Plea to the Jurisdiction .....................TAB C

CR 86–94, Memorandum Opinion .............................................................TAB D

CR 82–98, Defendant’s Motion to Dismiss................................................TAB E

CR 99, Order Granting Defendant’s Motion to Dismiss............................ TAB F

iv
INDEX OF AUTHORITIES

Cases

Barker v. Eckman, 

213 S.W.3d 306 (Tex.2006)...................................................................................7

Byers v. Patterson, 

219 S.W.3d 514 (Tex.App.-Tyler 2007, no pet.)...............................................8, 9

City of Dallas v. Carbajal, 

324 S.W.3d 537 (Tex.2010) (per curiam)..............................................................6

County of Cameron v. Brown, 

80 S.W.3d 549 (Tex.2002).....................................................................................4

Darr Equipment Co. v. Allen, 

824 S.W.2d 710 (Tex.App.-Amarillo 1992, writ denied)......................................7

Gray v. City of Galveston, 

No. 14–03–00298–CV, 2003 WL 22908145 (Tex.App.—Houston [14th Dist.] 

Dec. 11, 2003, pet. denied)....................................................................................6

HECI Exploration Co. v. Neel, 

982 S.W.2d 881 (Tex.1998)...................................................................................7

Mansfield State Bank v. Cohn, 

573 S.W.2d 181 (Tex. 1978)..................................................................................6

Murray v. O&A Express, Inc., 

630 S.W.2d 633 (Tex. 1982)..................................................................................4

Tara Partners, Ltd. v. City of S. Houston, 

282 S.W.3d 564 (Tex.App.-Houston [14th Dist.] 2009, pet. denied)....................6

Tex. A & M Univ. Sys. v. Koseoglu, 

233 S.W.3d 835......................................................................................................6

Tex. Dep't of Parks & Wildlife v. Miranda, 

133 S.W.3d 217 (Tex.2004)...................................................................................4

Tex. Dep't of Pub. Safety v. Petta, 

44 S.W.3d 575 (Tex.2001).....................................................................................5

v
Univ. of N. Tex. v. Harvey, 

124 S.W.3d at 216 (Tex.App.-Fort Worth 2003, pet. denied)...............................4

Univ. of Tex. Med. Branch at Galveston v. York, 

871 S.W.2d 175 (Tex.1994)...................................................................................5

University of Tex. Med. Sch. at Houston v. Than, 

901 S.W.2d 926 (Tex.1995)...................................................................................8

Statutes

TEX. CIV. PRAC. & REM. CODE § 16.003(a)...............................................................8

TEX. CIV. PRAC. & REM. CODE ANN. Ch.101 ............................................................5

TEX. GOVT. CODE § 552.028(a) .................................................................................2

TEX. GOVT. CODE Ch. 553 .........................................................................................1

Other Authorities

Act of June 1, 2003, 

78th Leg., R.S., § 1.27, 2003 Tex. Gen. Laws 611, 641....................................... ii

Rules

TEX. R. CIV.PRO. 22 ...................................................................................................4

TEX. R. CIV.PRO. 45(b), 47(a)....................................................................................4

TEX.R.APP. P. 33.1(a) ................................................................................................6

vi
STATEMENT OF THE CASE

Nature of the Case: This case involves an open records 

request by Appellant, an incarcerated 

individual. On July 22, 2010, Appellant

filed a lawsuit in order to obtain a copy 

of a 1995 CPS Investigation file 

regarding child sexual abuse of his 

minor sons for which he was the alleged 

perpetrator and upon which he was 

subsequently imprisoned and is now

serving a life sentence. CR1–4 (TAB 

A).

Trial Court: The Honorable Antonia Arteaga

Trial Court Disposition: Appellee filed a plea to the jurisdiction 

and motion to dismiss on September 24, 

2010. CR 11–19 (TAB B). Appellee’s 

plea and motion was granted thereby 

dismissing Appellant’s claims. CR 29 

(TAB C). Appellant appealed on 

October 27, 2010 and after the parties 

submitted their respective briefing, the 

Fourth Court of Appeals affirmed in 

part and remanded in part. CR 86-94 

(TAB D). On remand, and consistent 

with the ruling of the Fourth Court of 

Appeals, the trial courted ordered 

Appellee to produce to Appellant the 

1995 investigation file. Accordingly, 

Appellant received a copy of the 

investigation file. Since there was 

nothing further to litigate and his tort 

claims were also dismissed, Appellee 

filed a motion to dismiss on November 

19, 2014, which was granted on 

December 5, 2014. CR 82–98 (TAB E); 

CR 99 (TAB F). This appeal followed.

vii
STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not likely to alter the outcome or to be a useful expenditure 

of scarce judicial resources. The legal principles relevant to this appeal are neither 

novel nor complex and the facts are straightforward. Accordingly, Appellee does not 

believe that oral argument is necessary. However, if the Court determines that oral 

argument is necessary in this case, Appellee respectfully requests to participate.

viii
ISSUES PRESENTED

The sole issue in this appeal is whether the trial court erred in dismissing this 

case after Appellant had obtained all of the relief sought in the lawsuit, the 

production of the 1995 investigation file, and had properly dismissed his tort claims.

ix
No. 04-14-00922-CV

In the Court of Appeals

Fourth Court of Appeals District of Texas

San Antonio, Texas

____________________

JOHN E. RODARTE

Appellant,

v.

TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,

TEXAS CHILD PROTECTIVE SERVICES

Appellee.

____________________

From the 57TH Judicial District Court, Bexar County, Texas

Trial Court No. 2010-CI-12625

Honorable Antonia Arteaga, Judge Presiding

APPELLEE’S BRIEF

____________________

TO THE HONORABLE COURT OF APPEALS:

Appellee, the Texas Department of Family and Protective Services (DFPS),

files this Brief. In support thereof, Appellee DFPS respectfully presents the 

following to the Court for consideration:

STATEMENT OF THE FACTS

This case involves a request for the production of documents by an 

incarcerated inmate pursuant to the Texas Public Information Act. Appellant

Rodarte is currently serving concurrent life sentences and twenty years 
imprisonment after being convicted of aggravated sexual assault of, and indecency,

with his two minor children. CR 1–4; Supp CR 2-18. He is currently imprisoned in 

the Bill Clements Unit of the Texas Department of Criminal Justice. CR 3.

On July 22, 2010, Appellant filed suit in order to obtain a copy of the 1995 

investigation conducted by Appellee of child sexual abuse of his sons whereby he 

was the alleged abuser, claiming that the investigation file was needed “for further 

litigation in other cases.” CR 1–4. His petition also alleged a tort claim against 

Appellee. Id. However, the only relief sought by Appellant was to obtain a copy of 

the 1995 investigation file. Id.

On September 24, 2010, Appellee filed a Plea to the Jurisdiction and Motion 

to Dismiss with the trial court arguing that 1) Appellant’s tort claims were barred by 

sovereign immunity, and 2) that under the Act, DFPS has discretionary authority to 

deny or comply with a request for documents by an incarcerated inmate pursuant to 

TEX. GOVT. CODE ANN. § 552.028(a) (West 2003) (a governmental body is not 

required to accept or comply with a request for information from incarcerated 

individuals). CR 11-19. The plea and motion were granted on October 11, 2010,

thereby dismissing the case with prejudice and without production of the 1995 

investigation file. CR 29.

Appellant subsequently filed an appeal before the Fourth Court of Appeals. 

CR 35-41. On appeal after the parties submitted their respective briefing, the Fourth 

2
Court affirmed in part and reversed and remanded in part. CR 86-93. On remand, 

consistent with the ruling by the Fourth Court, the trial court ordered Appellee to 

produce the 1995 investigation file to Appellant. CR 94-95. In accordance with the 

trial court’s Order, Appellee produced the file in October 2012. CR 96-97. Appellant

did not challenge the dismissal of his tort claims against DFPS and the trial court’s 

order dismissing his tort claims was affirmed. CR 92.

Since Appellant received all the relief he sought in his suit (i.e., the 1995 

investigation file in issue) and his tort claims had been dismissed, Appellee filed a 

motion to dismiss on November 19, 2014, and the motion was granted on December 

5, 2014. CR 82–98; CR 99. This appeal followed. CR 106.

SUMMARY OF ARGUMENT

This Court should affirm the trial court’s December 5, 2014 Order of 

Dismissal since Appellant’s claims against DFPS have been litigated and he has 

received all of the relief he sought namely, production of the 1995 investigation file. 

Further, Appellant’s tort claims against DFPS were dismissed for lack of subject 

matter jurisdiction because there is no waiver of sovereign immunity that would 

permit such claims to proceed. Finally, no due process rights attach to the denial of 

production of the investigation file. For these reasons, the trial court’s dismissal of 

the case should be affirmed.

3
ARGUMENT

A. Appellant Obtained All Of The Relief Sought In His Lawsuit And His 

Tort Claims Against DFPS Are Barred By Sovereign Immunity

This Court should affirm the trial court’s dismissal of this case because 

Appellant received all of his requested relief and his remaining claims are bared. The 

plaintiff initially decides who the parties are and what claims to assert. See TEX. R.

CIV. P. 22. The plaintiff’s petition defines the issues for trial. Murray v. O&A 

Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982). The pleadings must give a short 

statement of the cause of action sufficient to give the defendant fair and adequate 

notice of the claim involved. TEX. R. CIV. P. 45(b), 47(a).

Appellant’s suit only sought production of the 1995 investigation file. CR 1-

4. He did not request any other relief. CR 1-4. It is without dispute that he obtained 

the file. CR 96-97. Moreover, after receiving the file and prior to the dismissal of his 

suit, Appellant never amended his petition to add any further causes of action or to 

seek any additional forms of relief against DFPS.

Additionally, Appellant failed to plead facts supporting a viable tort claim 

under the Texas Tort Claims Act (TTCA). CR 1-4. A plaintiff must plead facts 

sufficient to invoke a waiver of sovereign immunity under the TTCA. County of 

Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002); Univ. of N. Tex. v. Harvey, 124 

S.W.3d at 216, 222 (Tex.App.-Fort Worth 2003, pet. denied); Tex. Dep't of Parks & 

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). The TTCA provides a very 

4
limited waiver of sovereign immunity. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 

101.001–109. Stated another way, the Legislature grants a party permission to sue a 

governmental unit for damages only to the extent allowed under the TTCA. Id. § 

101.025(b). Section 101.021 of the TTCA waives immunity in only three scenarios: 

(1) negligent operation or use of a motor-driven vehicle or equipment by a state 

employee; (2) negligent use of tangible personal property by a state employee, and 

3) premises defects. Id. at § 101.021(2).

Texas law is clear and it has “long held that information is not tangible 

personal property, since it is an abstract concept that lacks corporeal, physical, or 

palpable qualities.” Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 580 

(Tex.2001); see Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 

179 (Tex.1994). Because Appellant’s lawsuit was simply to obtain information 

contained in the 1995 investigation file, it did not involve tangible personal property 

upon which he could base a waiver of sovereign immunity to pursue a tort claim 

against DFPS under the TTCA. Nothing in his allegations fits within the very limited 

waiver of immunity for tort claims. CR 1-4.

Even if Appellant had alleged facts fitting with the limited waiver, his failure 

to comply with the TTCA’s requirement to notify a governmental unit of a claim 

before filing suit is another jurisdictional bar of his purported tort claim. TEX. CIV.

PRAC. & REM.CODE ANN. § 101.101. The failure to comply with the notice 

5
requirements in the Texas Tort Claims Act also deprives the trial court of subjectmatter jurisdiction. City of Dallas v. Carbajal, 324 S.W.3d 537, 537–38 (Tex.2010).

Appellant also did not amend his petition and therefore expressly waived any 

right to assert additional or different tort claims against DFPS. See Tex. A & M Univ. 

Sys. v. Koseoglu, 233 S.W.3d 835, 839–40 (Tex.2007); See Gray v. City of 

Galveston, No. 14–03–00298–CV, 2003 WL 22908145, at *2 (Tex.App.—Houston 

[14th Dist.] Dec. 11, 2003, pet. denied) (claimant waived any right to amend when 

he had an opportunity to amend his petition to attempt to allege facts sufficient to 

plead a claim within a waiver of sovereign immunity and did not do so); Tara 

Partners, Ltd. v. City of S. Houston, 282 S.W.3d 564, 578 (Tex.App.-Houston [14th 

Dist.] 2009, pet. denied).

The fact that Appellant is a pro se claimant does not excuse him from 

complying with the applicable substantive and procedural rules of law. See 

Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Accordingly, 

this Court should affirm the trial court’s dismissal of his suit for lack of jurisdiction 

and Appellant waived any right to assert new tort claims that might be within the 

waiver of immunity because he had an opportunity to amend and did not do so. 

TEX.R.APP. P. 33.1(a); See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d at 839–

40.

6
B. The Discovery Rule Does Not Apply And Cannot Serve As A Basis To 

Permit Appellant To Proceed With Any Tort Claims Against Appellee

Appellant’s contention on appeal2 that he should be allowed to proceed with 

his tort claims based on application of the discovery rule is flatly incorrect. The 

discovery rule defers a cause of action’s accrual date until the plaintiff knows, or by 

exercising reasonable diligence should know, of the facts giving rise to the claim. 

Barker v. Eckman, 213 S.W.3d 306, 311-12 (Tex. 2006). In order for the discovery 

rule to apply, the nature of the injury must be inherently undiscoverable and the 

injury itself must be objectively verifiable. HECI Exploration Co. v. Neel, 982 

S.W.2d 881, 886 (Tex.1998). The alleged injury here – of what appears to be 

negligent failure to protect – is not “inherently undiscoverable” or objectively 

verifiable.” Moreover, Appellant does not allege specific facts that he has discovered 

what were before “inherently discoverable.” Therefore, the discovery rule does not 

apply to permit him to now assert new allegations to support a tort claim. See Darr 

Equipment Co. v. Allen, 824 S.W.2d 710, 712 (Tex.App.-Amarillo 1992, writ 

denied).

2 Appellee notes that that Rodarte did not allege in his Original Petition that it failed to 

protect his children by failing to remove them from an abusive environment. CR 1-4. Rather, the 

sole basis of his lawsuit relates to the denial of production of the 1995 investigation file. Id.

7

 
Additionally, waiting fifteen (15) years to obtain the 1995 investigation file 

clearly shows that Appellant did not exercise reasonable diligence in obtaining facts 

giving rise to any purported tort claims. CR 1-4. 

Moreover, since the discovery rule does not apply, any new tort claims are 

barred by the two-year statute of limitations period. TEX. CIV. PRAC. & REM. CODE 

ANN. § 16.003(a). Hence, even if Appellant “discovered” additional facts giving rise 

to a claim in October 2012 (i.e., when the investigation file was produced), Appellant

failed to timely amend his petition to properly pursue them within the two-year 

limitations period, which was no later than October 2014. Therefore, no valid legal 

basis exists for deferral of the accrual date of his purported tort claim and dismissal 

of his tort claims was proper. This Court should affirm that dismissal.

C. No Due Process Rights Attach To The Denial of Production Of The 1995 

Investigation File

Appellant’s due process violation argument fares no better than his contention 

that the discovery rule applies. A violation of substantive due process occurs only 

when the government deprives individuals of constitutionally protected rights by an 

arbitrary use of its power. Byers v. Patterson, 219 S.W.3d 514, 525 (Tex.App.-Tyler 

2007, no pet.). The procedural due process component provides that citizens are 

entitled to notice and an opportunity to be heard at a meaningful time in a meaningful 

manner before any rights in life, liberty, or property may be taken away by the state. 

University of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 930 (Tex.1995).

8
It is without dispute that the nature of Appellant’s lawsuit involved DFPS’s 

initial refusal to provide him the 1995 investigation file regarding sexual abuse of 

his children. CR 1-4. On appeal, he simply attempts to mischaracterize the nature of 

his lawsuit by raising the issue of parental rights. The status of his parental rights 

over his children was never an issue at the trial court level. CR 1-4. Rather, the only 

issue, and in fact the only basis of his Original Petition, related to the denial of his 

access to the 1995 investigation file. Id. Appellant is not entitled to any due process 

protections (or any other constitutional protections for that matter) relating to the 

investigation file because its production or non-production does not involve a 

constitutionally protected property right. Nor does he hold a property interest in 

DFPS’s investigation file to support any substantive due process claim, particularly 

since by way of his lawsuit he has received the investigation file in issue. Byers v. 

Patterson, 219 S.W.3d at 525.

PRAYER

For the reasons stated herein, Appellee respectfully requests that the Court 

overrule all of Appellant’s points of error and affirm the trial court’s dismissal.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

JAMES E. DAVIS

9
Deputy Attorney General for Civil 

Litigation

ANGELA V. COLMENERO

Chief, General Litigation Division

/s/ Jason T. Contreras

Jason T. Contreras

Texas Bar No. 24032093

Assistant Attorney General

Office of the Attorney General

General Litigation Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

Phone: 512-463-2120

Fax: 512-320-0667

Counsel for Appellee

CERTIFICATE OF COMPLIANCE

The undersigned counsel certifies that this Brief of Appellee complies with 

Rule 9.4 of the Texas Rules of Appellate Procedure. The text is set to 14-point font 

and the number of words in the document as calculated by the word count feature of 

Microsoft Word is 2005.

/s/ Jason T. Contreras

Jason T. Contreras

Assistant Attorney General

10
CERTIFICATE OF SERVICE

I hereby certify that on July 17, 2015, a true and correct copy of the foregoing 

document was served to John E. Rodarte by Certified Mail Return Receipt 

Requested 7013-0600-0001-9791-3104 and Regular Mail.

John E. Rodarte, Sr.

TDCJ # 1263270

Clements Unit

9601 Spur 591

Amarillo, Texas 79107-9606

/s/ Jason T. Contreras

Jason T. Contreras

Assistant Attorney General

11
TAB A
TAB A
TAB A
TAB A
TAB A
TAB B
TAB B
TAB B
TAB B
TAB B
TAB B
TAB B
TAB B
TAB B
TAB B
TAB C
TAB C
TAB D
TAB D
TAB D
TAB D
TAB D
TAB D
TAB D
TAB D
TAB D
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB E
TAB F
TAB F