NO CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS. TERRY RAY JAMES, Appellant, LUPE VALDEZ, ET AL, Appellee.

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1 NO CV ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 February 27 A10:53 Lisa Matz CLERK IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS TERRY RAY JAMES, Appellant, v. LUPE VALDEZ, ET AL, Appellee. Appealed from Cause N. DC-ll In the 192nd Judicial District Court of Dallas County, Texas APPELLEE'S BRIEF Respectfully submitted, Craig Watkins Criminal District Attorney Dallas County, Texas By: Jana Prigmore Ferguson Texas Bar No Assistant District Attorney 411 Elm Street, 5th Floor Dallas, TX Tel: (214) Facsimile: (214) J ana.f erguson@dallascounty.org Attorney for Appellee, Defendant APPELLEE REQUESTS ORAL ARGUMENT

2 NO.05-ll-0l506-CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS TERRY RAY JAMES, Appellant, v. LUPE VALDEZ, ET AL, Appellee. Appealed from Cause N. DC-l In the 192nd Judicial District Court of Dallas County, Texas APPELLEE'S BRIEF Respectfully submitted, Craig Watkins Criminal District Attorney Dallas County, Texas By: Jana Prigmore Ferguson Texas Bar No Assistant District Attorney 411 Elm Street, 5th Floor Dallas, TX Tel: (214) Facsimile: (214) J ana.f erguson@dallascounty.org Attorney for Appellee, Defendant APPELLEE REQUESTS ORAL ARGUMENT

3 IDENTITY OF PARTIES AND COUNSEL Appellant: Counsel for Appellant: Counsel for Appellant at Trial: Appellee: Counsel for Appellee: Counsel for Appellee at Trial: Trial Judge: Terry James Terry James, Pro Se P. O. Box Dallas, Texas Telephone: (214) Terry James, Pro Se P. O. Box Dallas, Texas Telephone: (214) Dallas County SheriffLupe Valdez Jana Prigmore Ferguson Assistant District Attorney Texas Bar No Elm Street, 5th Floor Dallas, TX Telephone: (214) Facsimile: (214) Jana Prigmore Ferguson Assistant District Attorney Texas Bar No Elm Street, 5th Floor Dallas, TX Telephone: (214) Facsimile: (214) Honorable Craig Smith 192nd Judicial District Court Dallas County, Texas

4 TABLE OF CONTENTS Page Identity of Parties and Counsel i Table of Contents ii Index of Authorities iii Statement of the Case I Statement on Oral Argument Appellee's Reply Points Statement of Facts Summary of the Argument Argument Reply Point 1: The trial court did not abuse its discretion in allowing Defendant, Sheriff Lupe Valdez, to object to mediation as the objection was timely filed Reply Point 2: The trial court did not abuse its discretion as Dallas County Sheriffs Department was not served as a Defendant in the suit as only Sheriff Lupe Valdez had been served as Defendant, and Plaintiff filed a First Amended Petition that did not list the Dallas County Sheriffs Department as a Defendant Reply Point 3: The trial court did not abuse its discretion in dismissing the Plaintiffs lawsuit as Terry James failed to file a second amended pleading and name Dallas County as a Defendant in the lawsuit after SheriffLupe Valdez was dismissed Prayer Certificate of Service Appellee's Appendix II

5 INDEX OF AUTHORITIES CASES Page Brandon v. Holt, 469 U.S. 464 (1985) Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002)... 12, 13, 16,23 City a/arlington v. Randall, 301 S.W.3d 896 (Tex. App.- Fort Worth 2009, pet. denied) Clarkson v. Potter County Sheriff's Department, et ai, 2004 U.S. Dist. LEXIS (N.D. Tex. December 13, 2004) Drake Ins. Co. v. King, 606 S.W.2d 812 (Tex. 1980) E1 du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995) FKM Prtshp. v. Board a/regents o/the Univ. o/houston Sys., 255 S.W.3d 619 (Tex. 2008) , 19 Fontenot v. Stinson, 2011 Tex. App. LEXIS 9624 (Tex. App.- Houston [14th Dist.] December 8, 2011, pet. filed) Franka v. Velasquez, 216 S.W.3d 409 (Tex. App.-San Antonio 2006), rev'd, 332 S.W.3d 367 (Tex. 2011) ,10,27,28 Harless v. Niles, 100 S.W.3d 390 (Tex. App.- San Antonio 2002, no pet.)... 17,21 Huntsville Indep. School District v. Briggs, 262 S.W.3d 390 (Tex. App.- Waco 2008, pet. denied) , 30 JM Huber Corp v. Santa Fe Energy Res., 871 S. W.2d 842 (Tex. App.- Houston [14th Dist.] 1994, writ denied) Keene Corp. v. Gardner, 837 S.W.2d 224 (Tex. App.- Dallas 1992, writ denied)... 12, 13 Kentucky v. Graham, 473 U. S. 159 (1985) Loftin v. Martin, 776 S.W.2d 145 (Tex. 1989) Nueces County v. Ferguson, 97 S. W.3d 205 (Tex. App.- Corpus Christi 2002), no pet.)... 16, 17,21 111

6 Phifer v. Nacogdoches Cty. Cent. Appr. Dist., 45 S.W.3d 159 (Tex. App.- Tyler 2000, pet. denied) Sepulveda v. County of El Paso, 170 S.W.3d 605 (Tex. App.- El Paso 2005, pet. denied)... 19,23 Terrell v. Sisk, 111 S.W.3d 274 (Tex. App.- Texarkana 2003, no pet.) Texas A&M Univ. v. Koseoglu, 233 S.W.3d 835 (Tex. 2007) Texas Dept. of Public Safety v. Petta, 44 S.W.3d 575 (Tex. 2001) Turner v. Zellers, 232 S.W.3d 414 (Tex. App.- Dallas 2007, no pet.) Univ. of Tex. Health Sci. Ctr. at San Antonio v. Bailey, 332 S.W.3d 395 (Tex. 2011) "'''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''' 31 Winslow v. Dallas County Sheriff's Department, 2004 U.S. Dist. LEXIS (N.D. Tex. December 13,2004) CONSTITUTIONS U.S. Constitution... 2 Tx. Const.... 2, 3 STATUTES AND RULES TEX. CIY. PRAC. & REM. CODE , 9,16,22,25, 27,28 TEX. CIY. PRAC. & REM. CODE (b) ,... 24, 25, 27 TEX. CIY. PRAC. & REM. CODE (e)...,...,...,..., TEX. CIY. PRAC. & REM. CODE (f)... 3, 4, 9, 10, 19,22,23,24,25,27,28,29, 30,31 TEX. CIY. PRAC. & REM. CODE ,...,.., TEX. CIY. PRAC. & REM. CODE ,...,... 12, 13 IV

7 TEX. CIV. PRAC. & REM. CODE IS4.022(a) TEX. ClV. PRAC. & REM. CODE IS4.022(b)... 13, 14, IS TEX. CIV. PRAC. & REM. CODE IS4.022(c) TEX. R. APP. P (d)... 2 TEX. R. APP. P (e)... 6 TEX. R. APP. P. 39.1(c) TEX. R. APP. P (d)... 6 TEX. R. CIV. P TEX. R. ClV. P. 6S TEX. R. EVID ,20,23 TEX. R. EVID. 201(b)... 9,20,24 OTHER AUTHORITIES LOC. R. Cry. COURTS OF DALLAS COUNTY, TEXAS 2.07(e) LOC. R. cry. COURTS OF DALLAS COUNTY, TEXAS 4.0S v

8 NO.05-ll-0l506-CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS TERRY RAY JAMES, Appellant, v. LUPE VALDEZ, ET AL, Appellee. Appealed from Cause N. DC-l In the 192nd Judicial District Court of Dallas County, Texas APPELLEE'S BRIEF TO THE HONORABLE FIFTH COURT OF APPEALS: Appellee, Dallas County Sheriff Lupe Valdez, files its brief. Appellant will be referred to as "Terry James," "Plaintiff' or "Appellant." Appellee, Dallas County Sheriff Lupe Valdez, will be referred to as "Sheriff Lupe Valdez," "Lupe Valdez," "Defendant," or "Appellee." STATEMENT OF THE CASE Appellee disagrees with the Appellant's statement of the case as in the Plaintiff, Appellant' s, First Amended Suit for Deprivation of Rights, his live pleading, he does not Page 1

9 cite any authority other than the Texas Constitution. (CR, 7). Plaintiff failed to list the federal constitution in his live pleading, his First Amended Suit for Deprivation of Rights, in comparison to what he alleges in his Statement of the Case portion of the Appellant's Brief. (CR, 7; Appellant's Brief, 1). Further, Appellant failed to list the course of the proceedings and disposition of the case by the trial court, and also failed to cite references to the record in his Statement of the Case as required by TEX. R. APP. P. 38.1(d). (Appellant's Brief, 4). Appellant, Terry James is a Pro se Plaintiff, who initially filed a Suit for Deprivation of Rights on March 4, 2011 in which he alleged that he was falsely accused of family violence assault, he was booked into the Dallas County Jail, he wrote a "kite" that requested to attend the jail's law library, he was released from jail prior to going to the law library, and he listed of the Civil Practice and Remedies Code and he was suing for a deprivation of a right secured by the Constitution of Texas and the United States. (CR, 5-6). An Amicus Curiae Motion to Quash Purported Service was filed by the Texas Attorney General's Office on July 13,2011. (2 nd SUpp. CR, 6-8). The motion was filed because the Plaintiff listed the Defendants in the style of the case in his original Suit for Deprivation of Rights as Lupe Valdez and the Dallas County Sheriffs Department, but tried to serve the Texas Attorney General Greg Abbott. (CR, 5). Plaintiff filed Objections to the Attorney General 's Amicus Curiae Motion to Quash Purported Service & Memorandum in Support. (2 nd Supp. CR, 9-12). Plaintiff then filed a First Amended Suit for Deprivation of Rights. (CR, 7-8). The Plaintiffs first amended and live pleading, his First Amended Suit for Deprivation of Rights, alleged that he was Page 2

10 falsely accused of family violence assault, he was booked into the Dallas County Jail, wrote a request to attend the law library but did not go to the law library prior to his release from jail, and that he mailed out legal mail but did not receive the return receipt before he was released from jail. (CR, 7-8). Plaintiffs amended pleading stated that it superseded any prior complaint that had been filed in the cause of action. (CR, 7). Plaintiff only listed a reference to the Texas Constitution in his prayer for relief in his First Amended Suitfor Deprivation of Rights. (CR, 7). Ultimately, Sheriff Lupe Valdez was served with Plaintiffs First Amended Suit for Deprivation of Rights and Defendant, Lupe Valdez 's, Original Answer was efiled on August 26, (2 nd SUpp. CR, 13-17). Lupe Valdez, the elected Sheriff of Dallas County, also filed a Demand for Jury Trial. (2 nd SUpp. CR, 18-19). Plaintiff filed a Response to Claims Made in Defendant's Original Answer. (2 nd SUpp. CR, 20-21). Defendant efiled Lupe Valdez, Sheriff of Dallas County 's, Motion to Dismiss on September 12, (CR, 9-37). Sheriff Lupe Valdez's initial Motion to Dismiss asked the trial court to dismiss the Plaintiffs claims against Sheriff Lupe Valdez unless the Plaintiff filed an amended pleading dismissing Defendant and naming Dallas County as a defendant within thirty days of the date the Motion was filed pursuant to Texas Civil Practice & Remedies Code 101.l06(f). (CR, 12,13-14). The Certificate of Conference in Deftndant, Lupe Valdez, Sheriff of Dallas County 's, Motion to Dismiss reflected that while Rule 2.07(e) of the Local Rules of the Civil Courts of Dallas County, Texas does not require a certificate of conference or conference be attempted on dispositive motions, Page 3

11 Defendant conducted a conference since some local courts do not follow that rule, and counsel were not able to resolve the matters. (CR,14-15). Defendant, Lupe Valdez, Sheriff of Dallas County 's Unopposed First Amended Motion to Dismiss was efiled on September 13, (lst Supp. CR, 4-33). In Sheriff Lupe Valdez's First Amended Motion to Dismiss, Defendant pointed out and requested that the court dismiss the suit unless Plaintiff filed an amended pleading dismissing her and naming Dallas County as a Defendant within thirty days of the date the amended motion was filed pursuant to Texas Civil Practice & Remedies Code 101.l06(f). (lst Supp. CR, 8, 9). Plaintiff filed the Plaintiff's Motion to Dismiss Lupe Valdez as a Defendant. (CR, 38). The trial court signed a Mediation Order on September 21, 2011, which set forth that any objection to it must be filed within ten days from the date of receipt of the Mediation Order. (2 nd SUpp. CR, 81). The trial court also signed a Pre Trial Order. (2 nd Supp. CR, 83). The trial court signed an Order Granting Defendant, Lupe Valdez, Sheriff of Dallas County 's, Unopposed First Amended Motion to Dismiss on September 26, 2011 wherein Sheriff Lupe Valdez was ordered dismissed with prejudice to refile. (CR, 39). The initial Order signed by the trial court on September 26, 2011 did not dismiss the lawsuit entirely as Plaintiffs thirty days from September 13, 2011, the date the Unopposed First Amended Motion to Dismiss was filed, had not lapsed yet for him to file a second amended pleading to insert Dallas County as a Defendant. (CR, 39). The trial court's September 26, 2011 order merely dismissed Defendant, Sheriff Lupe Valdez, from the lawsuit with prejudice. (CR, 39). Page 4

12 Defendant, Sheriff Lupe Valdez efiled her Objection to Mediation on October 6, 2011, which was filed within the ten day deadline upon receipt of the Mediation Order set forth by the trial court. (2 od Supp. CR, 86-94). Sheriff Lupe Valdez included two exhibits, which reflected that the Dallas County District Attorney, Civil Division, received the trial court's Pre-Trial Order and Mediation Order on September 28, 2011 pursuant to the date stamps. (2 nd SUpp. CR, 92-93). The Texas Attorney General's Office efiled an Amicus Curiae Motion for Extension of Time in Which to Negotiate a Mediation Date on October 11, (2 od Supp. CR, 95-98). Plaintiff filed Objections to Defendant, Sheriff Lupe Valdez's, Objections to Mediation on October 14, 2011 and asserted the date that he received the trial court's Mediation Order and he surmised that Defendant must have also received its copy of the order the same day, and requested that the Defendant's objections to mediation be denied as untimely. (2 nd Supp. CR, 99). Plaintiff filed Objections to Amicus Curiae Motion for Extension of Time in Which to Negotiate a Mediation Date. (2 nd SUpp. CR, 100). The trial court signed an Order on Objection to Mediation on October 24, (2 nd SUpp. CR, 10 I). The trial court signed its Order Granting Defendant, Lupe Valdez, Sheriff of Dallas County's, Unopposed First Amended Motion to Dismiss and Dallas County on October 25, 2011 after a hearing was held. (CR, 40). The Order Granting Defendant, Lupe Valdez, Sheriff of Dallas County 's, Unopposed First Amended Motion to Dismiss and Dallas County, stated that the Motion should be granted and that the suit be dismissed and that all claims asserted by Plaintiff in the suit against the Defendant, Dallas County Sheriff Lupe Valdez, and any that could be asserted against Dallas County, who Page 5

13 was not named as a Defendant in a timely manner, were dismissed. (CR, 40). The Plaintiff filed a Notice of Appeal on November 3, (CR,41-42). STATEMENT ON ORAL ARGUMENT Defendant, Appellee, requests that the Court grant oral argument for the following reasons: 1. Oral argument would give the court a more complete understanding of the facts presented in this appeal pursuant to Tex. R. App. P. 39.1(c). Defendant believes the facts are not complex, but that the large number of pleadings filed in the case can be confusing to the Pro Se Plaintiff, the Appellant. 2. Oral argument would significantly aid the Court in deciding this case pursuant to Tex. R. App. P. 38.1(e) and 39.1 (d). Defendant believes the Court during oral arguments can help the Pro Se Plaintiff understand the legal authority including statutes and cases that support its contentions set forth in its pleadings and motions. APPELLEE'S REPLY POINTS 1. Reply Point No. 1: The trial court did not abuse its discretion in allowing Defendant, Sheriff Lupe Valdez, to object to mediation as the objection was timely filed. 2. Reply Point No. 2: The trial court did not abuse its discretion as Dallas County Sheriffs Department was not served as a Defendant in the suit, and only Sheriff Lupe Valdez had been served as Defendant, and Plaintiff filed a First Page 6

14 Amended Petition that did not list the Dallas County Sheriffs Department as a Defendant. 3. Reply Point No.3: The trial court did not abuse its discretion in dismissing the Plaintiffs lawsuit as Terry James failed to file a second amended pleading and name Dallas County as a Defendant in the lawsuit after Sheriff Lupe Valdez was dismissed. STATEMENT OF FACTS Per the Plaintiff, Terry James, he was booked into the Dallas County Jail on December 16,2010 and charged with a felony charge offamily violence assault. (CR,7). He was released from the jail on January 4, (CR, 7). Plaintiff originally named Lupe Valdez and the Dallas County Sheriffs Department as Defendants in his previously filed Suit for Deprivation of Rights, but attempted to serve the Texas Attorney General Greg Abbott as listed in the style of the case. (CR, 5). Subsequently, the Plaintiff filed his First Amended Suit for Deprivation of Rights and only served Defendant, Sheriff Lupe Valdez at 133 North Industrial Blvd., LB 31, Dallas, Texas 75207, as the sheriff was listed in the style of the case of his amended petition. (CR, 7-8). Plaintiffs amended petition listed that he wrote an inmate grievance and directed it to Sheriff Valdez and he complained about allegedly being deprived access to the jail's law library. (CR,7). Sheriff Lupe Valdez was the only defendant served, and Defendant, Sheriff Lupe Valdez, efiled an Original Answer after being served with the Plaintiff's First Amended Suit for Deprivation of Rights. (2 nd Supp. CR, 13-17). Sheriff Lupe Valdez's Original Answer contained verified denials that no notice of the claim and proof of loss or claim Page 7

15 was actually provided and that the Defendant was not liable in the capacity in which she had been sued. (2 nd SUpp. CR, 13-17). Sheriff Lupe Valdez's Original Answer also include a general denial and plea to the jurisdiction. (2 nd SUpp. CR, 13). Defendant also asserted affirmative defenses, which included but were not limited to governmental immunity; limit of liability; statutory prerequisites to suit were not followed by Plaintiff; election of remedies pursuant to of the Civil Practice and Remedies Code, as the filing of a lawsuit under the chapter against a governmental unit constitutes an irrevocable election by the Plaintiff and immediately and forever bars any suit or recovery by Plaintiff against any individual employee of the governmental unit regarding the same subject matter. (2 nd SUpp. CR, 14-15). Defendant, Sheriff Lupe Valdez, subsequently efiled a Motion to Dismiss. (CR,9-37). The certificate of conference in the Motion reflected that the parties were not able to resolve the matters. (CR, 14-15). The next day, on September 13,2011, Defendant, Sheriff Lupe Valdez, filed an Unopposed First Amended Motion to Dismiss. (1 st Supp. CR, 4-33). After the conference was held between counsel prior to Defendant's filing of the original Motion to Dismiss, the Plaintiff changed his mind and left a message for Defendant's counsel, which stated he did not have an objection to the motion and no objection to Lupe Valdez being dismissed from the case. (1 st Supp. CR, 4, 11). The Plaintiff's changing of his position from being opposed to not being opposed to the dismissal motion necessitated the Defendant's filing of the Unopposed First Amended Motion to Dismiss. (1 st Supp CR, 4, 10-11). The Plaintiff's thirty day deadline to file a second amended pleading dismissing Page 8

16 Defendant, Sheriff Lupe Valdez, and naming Dallas County as a Defendant in the suit started to run from September 13, 2011, when the Unopposed First Amended Motion to Dismiss was filed. (l't Supp. CR, 4-33). The Defendant asserted that all claims made by Plaintiff were against the sheriff in her official capacity alone in the Unopposed First Amended Motion to Dismiss. (1st Supp. CR, 5-6, 7). Lupe Valdez also asserted that an elected sheriff such as she is, is an employee under the statute. (1st Supp. CR, 7). Defendant requested that the trial court take judicial notice that Lupe Valdez is the elected sheriff of Dallas County pursuant to the TEX. R. EVID.201. (1st Supp. CR, 7-8). Sheriff Lupe Valdez also asserted that the fact that she is the elected sheriff of Dallas County is not subject to reasonable dispute in that it is generally known within the territorial jurisdiction of the trial court or is capable of accurate and ready determination by resorting to resources whose accuracy cannot reasonably be questioned pursuant to TEX. R. EVID.201(b). (1st Supp. CR, 8). Defendant's Unopposed First Amended Motion to Dismiss also asserted that to the extent that a plaintiff seeks damages for alleged constitutional violations, his claims are considered to have been brought under the Texas Tort Claims Act for purposes of in the Civil Practice and Remedies Code. (I st Supp. CR, 7). Defendant further asserted that pursuant to Franka v. Velasquez, 216 S.W.3d 409 (Tex. App.-San Antonio 2006), rev 'd, 332 S.W.3d 367, 369 (Tex. 2011), the Texas Supreme Court held that pursuant to (f), a governmental employee is entitled to dismissal of any tort claim asserted against her, regardless of whether or not the Texas Tort Claims Act waives the immunity of the employing entity for the claim. (I st Supp. CR, 9). Defendant Page 9

17 asserted that based on Franka, the Plaintiffs claims could have been asserted against Dallas County under the Texas Tort Claims Act for purposes of section (f). (Ist Supp. CR, 9). Defendant, Sheriff Lupe Valdez, requested that the trial court dismiss the Plaintiff s claims against her unless Plaintiff filed amended pleadings dismissing Defendant and naming Dallas County as a defendant within thirty days of the date the amended motion was filed pursuant to TEX. CIY. PRAC. & REM. CODE (f). (I st Supp. CR, 9). The Plaintiff filed a Motion to Dismiss Lupe Valdez as a Defendant. (CR, 38). The trial court signed an Order Granting Defendant, Lupe Valdez, Sheriff of Dallas County's, Unopposed First Amended Motion to Dismiss on September 26, 2011 wherein SheriffLupe Valdez was ordered dismissed with prejudice to refile. (CR,39). The trial court signed a Mediation Order on September 21, (2 nd Supp. CR, 81, 93). The Mediation Order set forth a deadline for Defendant to file an objection within ten days from the date of receipt of the Order. (2 nd SUpp. CR, 81, 93). Defendant's counsel's office received the trial court's Mediation Order on September 28, 2011 as evidenced by the dated receipt stamp. (2 nd SUpp. CR, 93). Defendant, Sheriff Lupe Valdez, efiled her Objection to Mediation on October 6, 20 II which was filed within the ten day deadline to object to mediation upon receipt of the trial court's Mediation Order. (2 nd SUpp. CR, 86-94). Plaintiff filed Objections to Defendant's Objections to Mediation on October 14, (2 nd SUpp. CR, 99). In the Plaintiffs objections to Defendant, Sheriff Lupe Valdez's, Objection to Mediation, he asserted the date that he received the trial court's Mediation Order and surmised that Defendant, Sheriff Lupe Valdez, must have also received her copy of the order the same day, and he Page 10

18 requested that the Defendant's objections to mediation be denied as untimely. (2 nd SUpp. CR, 99). The trial court signed an Order on Objection to Mediation on October 24, (2 nd SUpp. CR, 101). The trial court signed an Order Granting Defendant, Lupe Valdez, Sheriff of Dallas County's, Unopposed First Amended Motion to Dismiss and Dallas County on October 25, (CR, 40). In this second Order to Dismiss signed by the trial court, the court ordered that the Unopposed First Amended Motion to Dismiss should be granted and that the suit be dismissed and that all claims asserted by Plaintiff in the suit against the Defendant, Dallas County Sheriff Lupe Valdez, and any that could be asserted against Dallas County, who was not named as a Defendant in a timely manner, were dismissed. (CR,40). SUMMARY OF ARGUMENT Defendant timely filed its Objection to Mediation within ten days of receipt of the trial court's Mediation Order. The trial court did not abuse its discretion since the Plaintiff filed a first amended petition, which did not name the Dallas County Sheriffs Department as a Defendant. Further, Sheriff Lupe Valdez was the only Defendant who was named and served in this suit. Even if the Plaintiff had actually named and served the Dallas County Sheriffs Department, which is not the case, that department is not a legal entity that is subject to suit. Plaintiffs lawsuit was properly dismissed by the trial court as he only did half of what was required of him. Plaintiff agreed to a dismissal of Sheriff Lupe Valdez after she was the only Defendant to be served in the lawsuit, but he failed to file a second amended pleading naming Dallas County as a Defendant, and Page 11

19 never tried to serve Dallas County. The trial court did not abuse its discretion in first ordering that Defendant, Sheriff Lupe Valdez, was dismissed with prejudice. The trial court also did not abuse its discretion when it later ordered that Dallas County, who was never named as a Defendant within thirty days of the Defendant' s Unopposed First Amended Motion to Dismiss being filed, was also dismissed. ARGUMENT Reply Point No.1: The trial court did not abuse its discretion in allowing Defendant, SheriffLupe Valdez, to object to mediation as the objection was timely filed. A trial court may be found to have abused its discretion if it rendered an umeasonable and arbitrary decision or acted without reference to any guiding principles or rules. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002). A trial court's mere error in its judgment in a case does not amount to an abuse of discretion. E.l du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995), Loftin v. Martin, 776 S.W.2d 145, 146 (Tex. 1989). Appellate courts do not reverse a trial court's decision because that court disagrees with the trial court. Butnaru v. Ford Motor Co., 84 S.W.3d at 211. Appellate courts only will reverse a trial court's decision if the reviewing court finds that the lower court acted in an arbitrary or umeasonable manner. Id. Alternative dispute resolution's purpose, including mediation is to encourage a resolution of civil disputes and the settlement of lawsuits through settlement procedures. Keene Corp. v. Gardner, 837 S.W.2d 224, 232 (Tex. App.- Dallas 1992, writ denied). Section of the Texas Civil Practice and Remedies Code states that courts may order a dispute for resolution by an alternative dispute resolution procedure, which Page 12

20 includes mediation and other methods. Section (a) of the Texas Civil Practice and Remedies Code provides that a court may notify parties of its decision to refer the litigation to mediation or other alternative dispute resolution procedure. If a court decides that a pending lawsuit is appropriate for referral to an alternative dispute resolution procedure pursuant to , the court notifies the parties of its decision. Any party may, within 10 days after receiving the notice under Subsection (a), file a written objection to the referral. Civ. Prac. & Rem. Code, (b). If the referring court decides that there is a reasonable basis for an objection to the alternative dispute resolution procedure under (b), that court may not refer the litigation or matter under Civ. Prac. & Rem. Code, (c). If a trial court is allowed to force a party that is resistant to participating in an alternative dispute resolution procedure without following the ten day objection period in the statute, that portion of the statute has been rendered meaningless. Keene Corp. v. Gardner, 837 S. W.2d at 232. Courts cannot force parties to litigation to follow a timetable, which is less than the statute dictates, which is ten days after receipt of the order to mediate. A trial court that has rendered an unreasonable and arbitrary decision or else has acted without reference to any guiding principles or rules may be found to have abused its discretion by an appellate court. Butnaru v. Ford Motor Co., 84 S.W.3d 198,211 (Tex. 2002). A court's decision should not to be reversed because an appellate court disagrees with the trial court. Butnaru v. Ford Motor Co., 84 S.W.3d at 211. Appellate Page 13

21 courts will only reverse a trial court's decision if the reviewing court finds that the lower court acted in an arbitrary or unreasonable manner. Id. Pursuant to the statute, a party may file a written objection to mediation within ten days after receiving the trial court's notice to mediate the case. Civ. Prac. & Rem. Code, l54.022(b). The trial court did not abuse its discretion as it did not make an unreasonable or arbitrary decision and it likewise used guiding principles or rules III signing the Order on Objection to Mediation. (2 nd SUpp. CR, 101). Defendant, Sheriff Lupe Valdez efiled an Objection to Mediation on October 6, 2011, which was filed within the ten day deadline upon receipt of the Mediation Order set forth by the trial court pursuant to Civ. Prac. & Rem. Code, IS4.022(b) (2 nd SUpp. CR, 86-94). Plaintiff filed Objections to Defendant, Sheriff Lupe Valdez's, Objections to Mediation and asserted the date he received the trial court's Mediation Order and surmised that Defendant must have also received its copy of the order the same day, and he requested that the Defendant's objections to mediation be denied as untimely. (2 nd SUpp CR, 99). The trial court signed an Order on Objection to Mediation on October 24, (2 nd SUpp. CR, 101). Pursuant to Rule 4.05 of the Local Rules of the Civil Courts of Dallas County, Texas, all requirements of the rules applicable to attorneys shall equally apply to pro se litigants. Plaintiff alleges that the trial court abused its discretion when it disregarded its own Mediation Order, but the language of the order specifically stated that the deadline to file an objection to mediation was within ten days of that party's receipt of the Mediation Order, and not within ten days from the date the Order was signed or within Page 14

22 ten days from the date that the opposing side alleges the order may have been received by the objecting party. (2 nd SUpp. CR, 93). Sheriff Lupe Valdez filed an Objection to Mediation on October 6, 2011, which was filed within the ten day deadline upon receipt of the Mediation Order set forth by the trial court. (2 nd SUpp. CR, 81, 93, 86-94). On October 24, 2011, the trial court held a hearing on Defendant's Objection to Mediation, and signed the Order on Objection to Mediation. (2 nd SUpp. CR, 101). Defendant complied with (b) of the Civ. Prac. & Rem. Code when she filed a written objection to the referral of the case to mediation by the trial court within ten days after receiving the notice. (2 nd SUpp. CR, 86-94). Plaintiff presented no proof to contradict the date, September 28, 2011, the date that Defendant's counsel received her copy of the trial court's Mediation Order from the trial court, as shown by the date receipt stamp that is part of the record before this Court. (2 nd SUpp. CR, 93). Defendant complied with the statute when objecting to mediation and timely filed the written objection to mediation within ten days of receipt of the trial court's order to mediate as required. (2 nd Supp. CR, 86-94). Plaintiff has no legal basis for his unsupported allegation that the trial court abused its discretion in allowing Defendant to object to mediation in an untimely manner since he received his copy of the order on an earlier date and believed Defendant's counsel also received their copy the same day. (2 nd SUpp. CR, 99). The trial court did not abuse its discretion in signing the Mediation Order. (2 nd SUpp. CR, 101). Further, the trial court did not dismiss the lawsuit due to any mediation order signed by the trial court, and this assertion is merely a red herring brought up by the Pro Page 15

23 se Plaintiff and has no bearing on the outcome of the case having being dismissed because he failed to file a second amended petition and name Dallas County as a Defendant in a timely manner. (CR, 40). The judge dismissed the suit against Sheriff Lupe Valdez and Dallas County, who was not named as a Defendant within the thirty day deadline of Sheriff Lupe Valdez's amended motion to dismiss being filed, due to Plaintiffs failure to comply with of the Texas Civil Practice and Remedies Code, and not due to any mediation order. (CR, 40). Thus, Plaintiffs argument concerning mediation should be disregarded by this Court. Reply Point No.2: The trial court did not abuse its discretion as Dallas County Sheriffs Department was not served as a Defendant in the suit as only Sheriff Lupe Valdez had been served as Defendant, and Plaintiff filed a First Amended Petition that did not list the Dallas County Sheriffs Department as a Defendant. A trial court, which has rendered an unreasonable and arbitrary decision or else acted without reference to any guiding principles or rules may be found to have abused its discretion. Butnaru v. Ford Motor Co., 84 S.W.3d at 21l. However, a trial court' s decision is not to be reversed because the court disagrees with the trial court. Id. Appellate courts only will reverse a trial court's decision if the reviewing court finds that the lower court acted in an arbitrary or unreasonable manner. Id. Under the common law, a governmental employee or official may be sued in her official capacity, individual capacity, or both. Texas A&M Univ. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007); Nueces County v. Ferguson, 97 S.W.3d 205, 213 (Tex. Page 16

24 App.-Corpus Christi 2002, no writ). A claim against a governmental official in her official capacity is a suit against the governmental entity she represents. Kentucky v. Graham, 473 U.S. 159, (1985); Texas Dept. of Public Safety v. Petta, 44 S.W.3d 575, (Tex. 2001). Courts generally look to "the course of the proceedings" to determine the capacity in which an official has been sued. Kentucky v. Graham, 473 U.S. at 166 n.14 (citing Brandon v. Holt, 469 U.S. 464 (1985)); Terrell v. Sisk, 111 S.W.3d 274,281 (Tex. App. Texarkana 2003, no pet.); Harless v. Niles, 100 S.W.3d 390, 395 (Tex. App.- San Antonio 2002, no pet.); Nueces County v. Ferguson, 97 S.W.3d 205, (Tex. App. Corpus Christi 2002, no pet). In examining "the course of the proceedings," Texas courts have examined several factors, including but not limited to the following: the substance of the allegations made against the individual defendant, Terrell v. Sisk, III S.W.3d at ; whether the petition refers to the defendant as an individual or as an official of a governmental entity, Harless v. Niles, 100 S.W.3d at 395; whether the petition states that the acts complained of by the defendant were acts within or outside the scope of the defendant's employment, Nueces County v. Ferguson, 97 S.W.3d at ; whether liability is sought against the defendant individually and/or against the defendant's employer, Id.; and the manner of service of the petition on the defendant. /d. An amended pleading adds or withdraws matters to change or correct a previous pleading. TEX. R. CIV. P. 62; J.M Huber Corp. v. Santa Fe Energy Res., 871 S.W.2d 842, 844 (Tex. App.-Houston [14th Dist.] 1994, writ denied). The filing of an amended pleading, which does not include a party or a cause of action effectively has nonsuited or Page 17

25 else voluntarily dismissed the omitted claim or party once the amended pleading was filed. FKM Prtshp. v. Board of Regents of the Univ. of Houston Sys., 255 S.W.3d 619, 632 (Tex. 2008). The amended pleading's effect is to completely supersede and replace the prior pleading. TEX. R. CIV. P. 65; Phifer v. Nacogdoches Cty. Cent. Appr. Dist., 45 S.W.3d 159, 172 (Tex.App.-Tyler 2000, pet. denied). As a result, once a party has filed an amended pleading, the prior pleading is no longer part of the lawsuit. Drake Ins. Co. v. King, 606 S.W.2d 812, 817 (Tex. 1980). The Plaintiff listed Lupe Valdez and the Dallas County Sheriff's Department in the style of the case of his original petition, titled the Suit for Deprivation of Rights. (CR, 5-6). Plaintiff listed Lupe Valdez and the Dallas County Sheriff's Department in the style of the case in his original petition, and listed service for them as being to serve Greg Abbott, the Texas Attorney General. (CR, 5-6). The Texas Attorney General's Office filed an Amicus Curiae Motion to Quash Purported Service. (2 nd SUpp. CR, 6-8). The Plaintiff filed a First Amended Suit for Deprivation of Rights. (CR, 7-8). The Plaintiff's original petition was superseded when he filed his amended pleading. (CR, 5-6, 7-8). The Dallas County Sheriff's Department was not listed in the Plaintiff's live pleading, his amended petition titled the Plaintiff's First Amended Suit for Deprivation of Rights. (CR, 7-8). Plaintiff's amended petition stated that the amended complaint superseded any prior complaint, which he had previously filed in the cause of action. (CR,7). Thus, the Plaintiff was aware that he only intended to sue Sheriff Lupe Valdez as Defendant since he deleted the Dallas County Sheriff's Department from the style of the case, did not mention it, and did not attempt to serve the Dallas County Sheriff's Page 18

26 Department in his First Amended Suit for Deprivation of Rights. (CR, 7-8). The Plaintiffs amended pleading did not include the Dallas County Sheriffs Department, and he thus effectively nonsuited or dismissed the omitted party once his amended pleading was filed. FKM Prtshp. v. Board of Regents of the Univ. of Houston Sys., 255 S.W.3d at 632. Only Defendant, Sheriff Lupe Valdez, was to be served with the lawsuit per the Plaintiffs style of the case in his amended petition. (CR, 7). The Plaintiffs amended pleading only listed Sheriff Lupe Valdez as a Defendant and asked that she be served at her work address as sheriff of Dallas County, and complained about her in her official capacity as sheriff concerning his allegedly being deprived of going to the law library. (CR,7-8). The Plaintiffs amended petition also stated that he wrote an inmate grievance and directed it to the Defendant, Sheriff Lupe Valdez, about his allegation that he was deprived of access to the law library while incarcerated in jail. (CR, 7). Sheriff Lupe Valdez, Defendant, filed an Original Answer to the Plaintiffs amended lawsuit. (2 nd SUpp. CR, 13-17). The Defendant likewise asserted that all claims made by Plaintiff were against her in her official capacity alone as the sheriff in the Unopposed First Amended Motion to Dismiss. (1 st Supp. CR, 5-6, 7). Lupe Valdez also asserted that an elected sheriff such as she is, is an employee under the statute. (1 st Supp. CR, 7). A sheriff is an employee under TEX. CIV. PRAC. & REM. CODE (f). Sepulveda v. County of El Paso, 170 S.W.3d 605, (Tex. App.-El Paso 2005, pet. denied). Defendant requested that the trial court take judicial notice that Lupe Valdez is the elected sheriff of Dallas Page 19

27 County pursuant to the TEX. R. EVID.201. (1" Supp. CR, 7-8). Sheriff Lupe Valdez also asserted that the fact that she is the elected sheriff of Dallas County is not subject to reasonable dispute in that it is generally known within the territorial jurisdiction of the trial court or is capable of accurate and ready determination by resorting to resources whose accuracy cannot reasonably be questions pursuant to TEX. R. EVID.201(b). (lst Supp. CR, 8). In addition, the Dallas County Sheriffs Department, even if it had actually been listed or served pursuant to the Plaintiffs amended pleading, which is not the case, it does not possess the power to sue or be sued, and does not exist separate from the governmental entity of Dallas County. Many courts have specifically determined that a department of a county is not an entity subject to suit. Winslow v. Dallas County Sheriff's Department, 2004 U.S. Dist. LEXIS (N. D. Tex. December 13, 2004) (Dallas County Sheriffs Department is not a legal entity subject to suit); Clarkson v. Potter County Sheriff's Department, et ai, 2004 U.S. Dist. LEXIS (N. D. Tex. December 13, 2004 ) (Potter County Sheriffs Department is not a legal entity subject to suit). In Winslow v. Dallas County Sheriff's Department, 2004 U.S. Dist. LEXIS (N. D. Tex. December 13, 2004), the court concluded that it is well settled that a plaintiff may not bring a claim against a servient political department or agency unless that department or agency enjoys a separate and distinct legal existence. Unless the true political entity has taken explicit steps to grant the servient political department or agency with jural authority, it cannot engage in any litigation except with the government itself. Id. In Clarkson v. Potter County Sheriff's Department, et ai, 2004 U.S. Dist. LEXIS Page 20

28 25004 (N. D. Tex. December 13, 2004), the court concluded that it had already been determined that governmental subdivisions such as sheriffs and police departments lack the capacity for independent legal action, and if a governmental subdivision does not have the capacity for independent legal action, it cannot be joined as a defendant in a lawsuit. Id. The Plaintiffs live pleadings, Plaintiff's First Amended Suit for Deprivation of Rights, indicate that Plaintiffs claims are solely asserted against Defendant, Lupe Valdez, in her official capacity as sheriff of Dallas County since only Lupe Valdez was named and listed to be served by Plaintiff in the style of his case, which he signed. (CR, 7). Plaintiff alleged in his live pleading that he wrote an "inmate grievance," which was directed to Defendant, Lupe Valdez in her official capacity as sheriff, as he complained about being deprived of access to the law library. (CR,7). In the case before this Court, Plaintiffs live pleading makes no allegation that Defendant ever acted outside the course and scope of employment as the elected Sheriff of Dallas County, it refers to Defendant exclusively in her capacity as an elected official, and requested that Defendant be served with process at her work address of 133 North Industrial Boulevard LB 31 in Dallas, Texas. (CR, 7). All claims made by Plaintiff against Defendant, were made in her official capacity as the sheriff of Dallas County. Harless v. Niles, 100 S.W.3d at 395; Nueces County v. Ferguson, 97 S.W.3d at Plaintiff, Terry James, asserted claims in his live pleading against Defendant, Sheriff Lupe Valdez, for false imprisonment arising from a false arrest on December 16, 2010, he alleged he was falsely accused of a felony charge of family violence assault, he Page 21

29 was arrested, booked into the Dallas County Jail, and subsequently detained in the Dallas County jaii.(cr, 7). To the extent that a plaintiff seeks damages for alleged constitutional violations, his claims are considered to have been brought under the Texas Tort Claims Act for purposes of City of Arlington v. Randall, 301 S.W.3d 896, 904 (Tex. App.-Fort Worth 2009, pet. denied). Section applies to negligence claims and claims for damages for alleged constitutional violations. Id. at 905. If a plaintiff files suit against a governmental employee for conduct within the general scope of her employment and if the suit could have been brought against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. TEx. CIV. PRAC. & REM. CODE (f). The Plaintiffs live pleading was against the lone Defendant, Lupe Valdez in her official capacity as sheriff of Dallas County. (CR 7). Plaintiff amended his pleading and deleted as a possible defendant, the Dallas County Sheriffs Department, since he failed to list it as a Defendant in his First Amended Suit for Deprivation of Rights, he also failed to attempt service on the Dallas County Sheriffs Department, and it has no separate legal identity from the governmental entity, Dallas County. (CR, 7-8). Plaintiff even admitted that he named the Dallas County Sheriffs Department only in his original petition, but not subsequently in the amended petition. (See Appellant's Brief, Pages 4-5). Plaintiff amended his petition and deleted all reference to the Dallas County Sheriffs Department. Only Sheriff Lupe Valdez was named as a Defendant and served, and subsequently filed an answer in this lawsuit. The trial court did not abuse his discretion since the Dallas County Sheriffs Department was not a party to the suit. Page 22

30 Reply Point No.3: The trial court did not abuse its discretion in dismissing the Plaintiffs lawsuit as Terry James failed to file a second amended pleading and name Dallas County as a Defendant in the lawsuit after Sheriff Lupe Valdez was dismissed. A trial court that has rendered an unreasonable and arbitrary decision or else acted without reference to any guiding principles or rules may be found to have abused its discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198,211 (Tex. 2002). A trial court' s decision is not to be reversed by an appellate court because it disagrees with the trial court. Butnaru v. Ford Motor Co., 84 S.W.3d at 211. Appellate courts will only reverse a trial court's decision if that court finds that the lower court acted in an arbitrary or unreasonable manner. Id. Section (f) of the Civil Practice and Remedies Code mandates dismissal of a Plaintiffs lawsuit unless he files amended pleadings and names the governmental unit as a defendant within thirty days of the date the motion to dismiss was filed. In the instant case, the trial court did not abuse its discretion in dismissing Sheriff Lupe Valdez with prejudice to refile in its September 26, 2011 Order. (CR, 39). The trial court also did not abuse its discretion in also ordering on October 25, 2011 that the any claim that could be asserted by Plaintiff against Dallas County, which was not named by Plaintiff as a defendant in a timely manner, was dismissed. (CR, 40). An elected sheriff is an "employee" under this statute. Sepulveda v. County of El Paso, 170 S.W.3d 605, 611 (Tex.App.- EI Paso 2005, pet. denied). Defendant requested that the trial court take judicial notice of the adjudicative fact that Lupe Valdez is the elected Sheriff of Dallas County pursuant to Rule 201 of the Texas Rules of Evidence Page 23

31 The fact that Lupe Valdez is the elected Sheriff of Dallas County was not subject to reasonable dispute in that it is either generally known within the territorial jurisdiction of the trial court or else is capable of ready and accurate determination by resort to sources whose accuracy could not reasonably be questioned. TEX. R. EVID. 201(b). An employee who has been sued in her official capacity may move the Court to dismiss the suit, and the Court shall dismiss the suit unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant within thirty days of the date the motion is filed. ld. at TEX. ClV. PRAC. & REM. CODE I Ol.106(f). Pursuant to I01.106(b) of the Code, the filing of a lawsuit against any employee of a governmental unit will constitute an irrevocable election by the plaintiff and will immediately and forever act as a bar to any lawsuit or recovery by the plaintiff against the governmental unit concerning the same subject matter unless the governmental unit consents. TEX. ClV. PRAC. & REM. CODE I01.106(b). Section I01.106(f) of the applicable statute states: If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee' s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee' s official capacity only. On the employee's motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30 th date after the date the motion is filed. TEX. ClV. PRAC. & REM. CODE (f). Courts have concluded that a plaintiff must file an amended pleading that dismisses the employee and also substitutes the governmental unit as the defendant Page 24

32 within thirty days of the employee's motion to dismiss being filed. Huntsville Indep. School District v. Briggs, 262 S.W.3d 390, 394 (Tex. App.-Waco 2008, pet. denied). In Huntsville Indep. School District v. Briggs, the court discussed that twenty-six days after the Defendant employee of the governmental unit filed a motion to dismiss, the plaintiff filed an amended petition to add the school district as a defendant. Id. at 391. Then, forty-one days after the Defendant employee filed her motion to dismiss pursuant to (f), the plaintiff again filed another amended petition to delete that employee as a defendant. Id. The court reasoned in that case, the plaintiff failed to comply with the procedural requirements of (f) since he only added the school district as defendant and failed to dismiss the employee during the thirty day deadline after that employee's motion to dismiss was filed. Id. at 395. The court also discussed that (b) of the statute states that the filing of a lawsuit against any employee of a governmental unit is an irrevocable election by the plaintiff and will immediately and forever bar any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents. Huntsville Indep. School District v. Briggs, 262 S.W.3d at 393. The court concluded that of the statute forces a plaintiff to choose if he will seek to impose liability on a governmental unit or else on a governmental employee acting as an individual outside the employee's official capacity. Id. at 393. The court noted that the choice of one by a plaintiff immediately and irrevocably bars his claims against the other. Id. A plaintiff who makes an unwise choice potentially faces an irrevocable bar against suing both the employee and governmental unit. Id. The court concluded that a plaintiff Page 25