43724001;1 January 2, 2018

RE: Sullivan v. Texas Ethic Commission, No. 03-17-00392-CV, in the Court of Appeals for the Third Judicial District of Texas, in Austin.
The Honorable Justices David Puryear, Via E-filing Scott, Field, and Cindy Bourland Third Court of Appeals P.O. Box 12547 Austin, Texas 78711-2547 Appellant’s Response to the Post-Submission Letter Brief of the Texas Ethics Commission Dear Justices Puryear, Field, and Bourland: I. The Texas Ethics Commission (“TEC”) admits that the exemption contained in T EX . C IV . PRAC . & REM . C ODE §27.010(a) does not exempt this legal action from a motion to dismiss brought pursuant to T EX . C IV . PRAC . & REM . C ODE §27.003. First, this suit is not an “enforcement action” at all as the TEC has so admitted. RR 3:49; RR 3:58. Second, the TEC admits in its letter brief it did not vote to initiate a civil “enforcement action” as required by TEX
. G OV ’ T C ODE § 571.171. Nor did the TEC vote to initiate an investigation. TEX
. G OV ’ T C ODE § 571.124. This court has jurisdiction only because of a de novo review under TEX
. G OV ’ T C ODE § 571.133(a) and not because the TEC voted to initiate an enforcement action. Finally, the matter is not brought in the name of the state by the Attorney General. Joseph Nixon
Akerman LLP 1300 Post Oak Boulevard

Suite 2500 Houston, TX 77056 T: 713 623 0887 F: 713 960 1527

akerman.com ACCEPTED 03-17-00392-CV 21562872 THIRD COURT OF APPEALS

AUSTIN, TEXAS 1/2/2018 4:39 PM JEFFREY D. KYLE

CLERK43724001;1

II. The case may not proceed to trial on a notice of appeal and a general denial as the only live pleadings. The position of the TEC in its letter brief that this case could go to trial with only a notice of appeal and a general denial in not legally supportable. Indisputably, the TEC has the burden of proof in this case. TEX
. G OV ’ T C ODE § 571.133(d) very clearly states, in part:

“(d).... The reviewing court shall try all issues of fact and law in the manner applicable to the other civil suits in this state but may not admit in evidence the fact of prior action by the commission or the nature of that action, except to the limited extent necessary to show compliance with statutory provisions that vest jurisdiction in the court. A party is entitled, on demand, to a jury determination of any issue of fact on which a jury determination is available in other civil suites in their state.”
TEX .G OV ’ T C ODE § 571.133(d), therefore, requires, The Texas Rules of Civil Procedure and Evidence apply to this case. That a case may go to trial with live pleadings of only a notice of appeal by a respondent and a general denial by the TEC and be submitted to a jury is specifically contradicted by Rules 45, 47, 68, 78, 91, 265, 266 and 269 of the Texas Rules of Civil Procedure, at a minimum. Further, a notice of appeal and a general denial as the only live pleadings at trial would not give the trial court any basis to admit any evidence, as no evidence would have any tendency to make a fact plead more or less probable where there are no operative facts plead. TEX
. R. C IV
. EVID §401 AND 402. Respectfully submitted,

A KERMAN LLP By: /s/Joseph M. Nixon Joseph M. Nixon joe.nixon@akerman.com State Bar No. 15244800 1300 Post Oak Blvd. Suite 2500 Houston, Texas 77056 Tel: (713) 623-0887 Fax: (713) 9630-152743724001;1 James E. “Trey” Trainor, III trey.trainor@akerman.com 700 Lavaca Street, Suite 1400 Austin, Texas 78701 Tel: (512) 623-6700 Fax: (512)623-6701 COUNSEL FOR APPELLANT MICHAEL QUINN SULLIVAN

CERTIFICATE OF SERVICEI hereby certify that a true and correct cope of the foregoing Response to the PostSubmission Letter Brief of the Texas Ethics Commission has been electronically filed and served on all counsel below on January 2, 2018. Eric J. R. Nichols enichols@beckredden.com Amanda Taylor ataylor@beckredden.com Amy K. Penn apenn@beckredden.com B ECK R EDDEN , LLP 515 Congress Ave., Suite 1900 Austin, Texas 78701 (512) 708-1000 ATTORNEYS FOR APPELLEE