Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/31/2015 1:29:05 PM JEFFREY D. KYLE Clerk
*1 ACCEPTED 03-15-00521-CV [8424233] THIRD COURT OF APPEALS AUSTIN, TEXAS 12/31/2015 1:29:05 PM JEFFREY D. KYLE CLERK No. 03-15-00521-CV _____________________________ In the Court of Appeals for the Third Judicial District Austin, Texas ______________________________ Roger Fay, Appellant-Plaintiff , v. Texas A&M University; Geochemical and Environmental Research Group; The College of Geosciences and Maritime Studies; Dr. Ray Bowen; Dr. Robert Duce; Dr. Norman Guinasso; Dr. Roger Sassen; and Dr. David Schink, Appellees-Defendants. ______________________________ On Appeal from the 200 TH Judicial District Court of Travis County, Texas Honorable Amy Clark Meacham, Presiding ______________________________ APPELLEES’ RESPONSE TO APPELLANT’S MOTION TO REINSTATE APPEAL ______________________________ KEN PAXTON LAURA A. BARBOUR Attorney General of Texas Texas Bar No. 24069336
Assistant Attorney General CHARLES E. ROY General Litigation Division First Assistant Attorney General P.O. Box 12548, Capitol Station JAMES E. DAVIS Austin, Texas 78711-2548 Deputy Attorney General for Civil Phone (512) 463-0447 Litigation Fax (512) 320-0667 ANGELA V. COLMENERO Chief, General Litigation Division
A TTORNEYS FOR A PPELLEES *2
Even if this Court accepts as true all of the conclusory statements in Appellant Roger Fay’s Motion to Reinstate Appeal (“Motion”), Appellant Fay still fails to provide this Court with an adequate basis to reverse the Court’s dismissal of his appeal because once Appellant paid the appropriate fee to have the clerk’s record transmitted to the Court of Appeals, his brief was due within 30 days, as specified by Texas Rule of Appellate Procedure 38.6.
Fay’s counsel, Brian Cantrell, contends that he “never received notice of a briefing schedule or any other communication from the Court due to a problem with Counsel’s electronic mail system.” (Motion ¶ 2.) Mr. Cantrell was, however, apparently receiving correspondence from the trial court, as evidenced by the payment of costs for the clerk’s record on September 22, 2105. (Exhibit A.) Also on September 22, 2015, the clerk’s record was transmitted to this Court as a result of the payment, as evidenced by the attached confirmation filed in the District Court of Travis County. (Exhibit
B.)
Texas Rule of Appellate Procedure 38.6 states that “an appellant must file a brief within 30 days . . . after the later of: (1) the date the clerk’s record was filed . . . .” Accordingly, as of September 22, 2015, Mr. Cantrell was aware that the clerk’s record had been filed because: (1) someone paid *3 $539.00 to have the clerk’s record transferred on behalf of Appellant Fay, and (2) there is no evidence to suggest Mr. Cantrell did not receive the notice of transmission filed in the district court. Consequently, under Rule 38.6, Appellant Fay had until October 22, 2015 to either file his brief or move for an extension of that deadline.
Even absent any other correspondence from this Court, as the party pursuing the appeal, Appellant knew—at the very least—that he had to file an appeal in accordance with the schedule set forth in the Texas Rules of Appellate Procedure. Moreover, absent any other correspondence from this Court, Mr. Cantrell’s purported electronic mail issues did not prevent him from calling the Court or checking the “Case Information” available publicly online: http://www.search.txcourts.gov/Case.aspx?cn=03-15-00521- CV&coa=coa03.
The party whose action starts the clock should not later be permitted to claim ignorance of the standard deadlines that result from that party’s action. Accordingly, Defendants Texas A&M University, Geochemical and Environmental Research Group, The College of Geosciences and Maritime Studies, Dr. Ray Bowen, Dr. Robert Duce, Dr. Norman Guinasso, Dr. Roger *4 Sassen, and Dr. David Schink respectfully request that the Court deny Appellant’s Motion to Reinstate Appeal.
PRAYER
For the foregoing reasons, this Court should deny Appellant’s Motion to Reinstate Appeal. *5 Respectfully submitted.
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 /s/ Laura A. Barbour
LAURA A. BARBOUR
Texas Bar No. 24069336 Assistant Attorney General General Litigation Division P. O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-0447 (512) 320-0667 fax laura.barbour@texasattorneygeneral.gov Attorneys for Appellees-Defendants Texas A&M University, Geochemical and Environmental Research Group, The College of Geosciences and Maritime Studies, Dr. Ray Bowen, Dr. Robert Duce, Dr. Norman Guinasso, Dr. Roger Sassen and Dr. David Schink
CERTIFICATE OF SERVICE
*6 I certify that a true and correct copy of the foregoing document has been served electronically through the electronic filing manager in accordance with Tex. R. App. P. 9.5(b)(1) and via facsimile transmission on the 31 st day of December 2015, to: C. Bryan Cantrell C ANTRELL , R AY & B ARCUS , L.L.P. P. O. Box 1019 Huntsville, Texas 77342 Fax: (936) 730-8535 Counsel for Appellant-Plaintiff Roger Fay
/s/ Laura A. Barbour
LAURA A. BARBOUR
Assistant Attorney General
*7 Exhibit A *8 Exhibit B