Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-14-00551-CV

Pablo SOLIZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 79th Judicial District Court, Brooks County, Texas

Trial Court No. 14-02-16542-CV

Honorable David Wellington Chew, Judge Presiding1

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Karen Angelini, Justice

Luz Elena D. Chapa, Justice

Jason Pulliam, Justice

Delivered and Filed: July 22, 2015

AFFIRMED

Pablo Soliz appeals the final summary judgment rendered against him in a quo warranto 

proceeding. We affirm the trial court’s judgment.

Soliz was elected constable for precinct 3 of Brooks County, Texas in November 2012, 

and he took office on January 1, 2013. On February 27, 2014, the Attorney General of the State 

of Texas initiated a quo warranto proceeding against Soliz pursuant to section 66.002 of the Texas 

Civil Practice and Remedies Code, alleging that Soliz had forfeited his office by failing to provide 

 1 Sitting by assignment
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evidence he had obtained a permanent peace officer license.2 The trial court found a probable 

ground for the proceeding and granted leave to file the information. The State filed a motion for 

summary judgment, asserting that Soliz forfeited his office by failing to provide evidence to the 

Brooks County Commissioners Court that he had been issued a permanent peace officer license. 

The trial court granted the motion, found Soliz guilty as charged in the information, and rendered 

judgment removing him from office. Soliz timely appealed.

The qualifications of office for an elected constable are set out in part in section 86.0021 

of the Local Government Code. See TEX. LOCAL GOV’T CODE ANN. § 86.0021 (West 2008). The 

statute requires:

On or before the 270th day after the date a constable takes office, 

the constable shall provide, to the commissioners court of the county 

in which the constable serves, evidence that the constable has been 

issued a permanent peace officer license under Chapter 1701, 

Occupations Code. 

Id. § 86.0021(b). A constable who fails to provide such evidence or who fails to maintain a 

permanent license while serving in office “forfeits the office and is subject to removal in a quo 

warranto proceeding under Chapter 66, Civil Practice and Remedies Code.” Id. 

The evidence attached to the State’s motion for summary judgment established that Soliz 

took office on January 1, 2013, that on February 11, 2014 (more than 270 days later), the Brooks 

County Commissioners Court requested Soliz to provide evidence he had been issued a permanent 

peace officer license under chapter 1701 of the Occupations Code, and that Soliz failed to provide 

such evidence. In addition, the State attached the affidavit of Candice Simon, a licensed peace 

officer and investigator for the Texas Commission on Law Enforcement (TCOLE), the Texas 

agency authorized to issue peace officer licenses. Simon’s affidavit, dated April 9, 2014, states 

 2 The State’s petition alleged two additional grounds for quo warranto removal that were subsequently nonsuited.
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that Soliz did not hold an active peace officer license when he assumed office and had not been 

issued one since taking office. 

In his response to the motion for summary judgment, Soliz did not deny he does not hold 

a permanent peace officer license under chapter 1701 of the Occupations Code. Instead, he asserted 

he was not allowed to take the licensing exam because he had not obtained the required training, 

and he had requested TCOLE to waive the training requirements. He also asserted he had not 

obtained the required training because one facility refused to admit him because of his age and 

disability and because the county would not pay for the training.

We review a summary judgment de novo. Provident Life & Acc. Ins. v. Knott, 128 S.W.3d 

211, 215 (Tex. 2003). We take as true all evidence favorable to the respondent and we indulge all 

reasonable inferences and resolve any doubts in the respondent’s favor. Id. Under Texas Rule of 

Civil Procedure 166a(c), the movant has the burden to establish that there is no genuine issue of 

material fact and he is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG 

Peat Marwick v. Harrison Co. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). If a claimant 

conclusively establishes its entitlement to judgment on a cause of action, the respondent may defeat 

the motion only by pointing to evidence that raises a fact issue as to one of the elements of the 

cause of action or by expressly presenting a defense and offering summary judgment evidence to 

establish a material fact issue on each element of the defense. City of Houston v. Clear Creek 

Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

On appeal, Soliz argues that he raised fact issues as to his “defenses” that his failure to 

obtain a permanent peace officer license was due to the wrongful conduct of third parties who 

failed to pay for his training and refused to admit him because of his age. However, section 

86.0021 of the Local Government Code does not contain any defenses for failing to timely present 

evidence of licensure to the commissioners court. The facts alleged by Soliz are not material in 
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that they are not relevant to the question of whether Soliz complied with the statute. The 

undisputed evidence established that Soliz failed to provide to the commissioners court, within 

270 days of taking office, evidence that he had been issued a permanent peace officer license under 

chapter 1701 of the Occupations Code. Section 86.0021(b) provides such failure results in 

forfeiture of the office. Soliz does not cite to any statutory or regulatory defenses to 

noncompliance or exceptions to forfeiture. The trial court therefore did not err in granting the 

State’s motion for summary judgment. 

Soliz next contends that by granting summary judgment, the trial court denied his right to 

a jury trial. The purpose of the summary judgment procedure is to avoid a conventional trial of 

clearly unmeritorious claims or untenable defenses. City of Houston, 589 S.W.2d at 678 n.5; 

Querner Truck Lines, Inc. v. Alta Verde Indus., Inc., 747 S.W.2d 464, 469 (Tex. App.—San 

Antonio 1988, no pet.). Its purpose is not to deprive parties of their right to a jury trial when there 

are material questions of fact to be decided. City of Houston, 589 S.W.2d at 678 n.5; Querner, 

747 S.W.2d at 469. “When a party cannot show a material fact issue, there is nothing to submit to 

a jury, and the grant of summary judgment to the opposing party does not violate the constitutional 

right to a jury trial.” Lattrell v. Chrysler Corp., 79 S.W.3d 141, 150 (Tex. App.—Texarkana 2002, 

pet. denied); see Querner, 747 S.W.2d at 469. Because there were no material fact issues to be 

decided in this case, the grant of summary judgment did not violate Soliz’s right to a jury trial.

Soliz next contends that section 86.0021 and the TCOLE licensing regulations violate due 

process because they require academy training “as an unfunded government mandate.” He also 

asserts that applying the statute to him violates due process because a training facility 

discriminated against him and therefore he was unable to obtain the training required for licensure. 

Soliz did not raise a constitutional challenge to section 86.0021 or the TCOLE regulations or to 

their application to him in his response to the motion for summary judgment. “Issues not expressly 
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presented to the trial court by written motion, answer or other response shall not be considered on 

appeal as grounds for reversal.” TEX. R. CIV. P. 166a(c). “Even constitutional challenges not 

expressly presented to the trial court by written motion, answer or other response to a motion for 

summary judgment have been held inappropriate for consideration for the first time on appeal as 

grounds for reversal.” Benson v. City of San Antonio, 715 S.W.2d 143, 144 (Tex. App.—San 

Antonio 1986, writ ref’d n.r.e.). Because Soliz did not raise his due process arguments in the trial 

court, he failed to preserve the issues for our review. See In re M.M.M., 428 S.W.3d 389, 397-98 

(Tex. App.—Houston [14th Dist.] 2014, pet. denied); Benson, 715 S.W.2d at 144-45.

The trial court’s judgment is affirmed.

Luz Elena D. Chapa, Justice