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 TEX. CIV. PRAC. & REM. CODE §27.010(a) does not exempt this legal action from a 

motion to dismiss brought pursuant to TEX. CIV. PRAC. & REM. CODE §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. GOV’T CODE § 571.171. Nor did the TEC vote to initiate an 

investigation. TEX. GOV’T CODE § 571.124. This court has jurisdiction only because of a de novo 

review under TEX. GOV’T CODE § 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

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 1/2/2018 4:39:29 PM JEFFREY D. KYLE Clerk
43724001;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. GOV’T CODE § 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.GOV’T CODE § 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. CIV. EVID §401 AND 402. 

Respectfully submitted, 

AKERMAN 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) 9630-1527 
43724001;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 SERVICE 

I 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

BECK REDDEN, LLP 

515 Congress Ave., Suite 1900 

Austin, Texas 78701 

(512) 708-1000 

ATTORNEYS FOR APPELLEE