Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 11/21/2016 9:56:14 PM JEFFREY D. KYLE Clerk NO. 03-16-00353-CV THIRD COURT OF APPEALS 11/21/2016 9:56:14 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-16-00353-CV *1 ACCEPTED [13916912] CLERK IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTICT OF TEXAS at AUSTIN TEVE V EIGEL , Appellant/Defendant
v .
T EXAS OLL W EEVIL E RADICATION F OUNDATION , I NC .
Appellee/Plaintiff
Appealed from the County Court at Law No. 1 of Travis County, Texas APPELLANT’S REPLY BRIEF TEVE V EIGEL , PRO SE 105 Quince Street Hereford, Texas 79045 (806) 231-1008 SVeig@aol.com *2 T ABLE OF C ONTENTS Page C OVER P AGE .....................................................................................................1
R EPLY TO A ’ S S TATEMENT OF F ACTS ................................................. 5
R EPLY TO A ’ S UMMARY OF THE A RGUMENT .................................... 7
R EPLY TO A ’ S A GRUMENT I SSUE 1 ..................................................... 9
R EPLY TO A ’ S A RGUMENT I SSUE 2 ................................................... 14
R EPLY TO S RGUMENT I SSUE 3 ................................................... 17
R EPLY TO C ONCLUSION ............................................................. 18
C ONCLUSION AND P RAYER FOR ELIEF ......................................................... 20
C ERTIFICATE OF C OMPLIANCE ....................................................................... 21 ERTIFICATE OF ERVICE ............................................................................... 21
I NDEX OF A UTHORITIES Statutes
T EX . A DMIN . C ODE TIT . 4, § 3.502 ................................................................. 13
T EX . A DMIN . C ODE TIT . 4, § 3.70 ................................................................... 13
T EX . A DMIN . C ODE TIT . 4, § 3.75 .............................................................. 6, 14
T EX . A GRIC . C ODE § 74.101 ............................................................................ 5
T EX . A GRIC . C ODE § 74.109 .......................................................................... 11
T EX . A GRIC . C ODE § 74.115 ...................................................................... 6, 14
T EX . A GRIC . C ODE § 74.127 ............................................................................ 8
T EX . A GRIC . C ODE § 74.129 .......................................................................... 11
T EX . C IV . P RAC . & EM . C ODE § 16.061 ..................................................... 4, 7
T EX . T AX . C ODE § 171.2515............................................................................ 6
T EX . T AX . C ODE § 171.252........................................................................ 6, 15
T EX . T AX . C ODE § 171.255.............................................................................. 6
Other Authorities
50 Tex. Jur. 3d Limitation of Actions § 20 .................................................. 11
Texas Boll Weevil Eradication Foundation Self Evaluation Report to
the Texas Sunset Commission ................................................................... 8 Constitutional Provisions
T EX . C ONST . RT . III, § 52 ............................................................................. 4
T EX . C ONST . RT . XVI, § 59 .......................................................................... 4
T ONST RT . XVI, § 68 .................................................................... 4, 12
T O THE H ONORABLE J USTICES OF THE T HIRD C OURT OF A PPEALS :
COME NOW, the A PPELLANT named herein in the above styled and numbered appeal, and present the Court the following A PPELLANT ’ S R EPLY
B RIEF to A PPELLEE ’ S B RIEF filed on October 31, 2016. UMMARY OF THE A ’ S EPLY B RIEF
1. In contradiction to the clear intent of the Texas Legislature and the
Texas Constitution, A ’ S B RIEF essentially request this Court to
ignore the expressed requirements of Tex. Civ. Prac & Rem. Code § 16.061
and declare A to be a qualifying “political subdivision” exempt from
any statute of limitations by judicial fiat. A B RIEF does not deny that A ’ formation was only
authorized and continued pursuant to Article XVI, Section 68 of the Texas
Constitution instead of pursuant to Section 52, Article III, or Section 59,
Article XVI, Texas Constitution required of qualifying “political
subdivisions” under Tex. Civ. Prac & Rem. Code § 16.061. does not cite any legal authority that the Texas
Legislature or the Texas Constitution expressly holds or provides that is a “political subdivision” as there is none. Instead, both the
governing Texas Agriculture Code [“T GRI ODE ”] Chapter 74 and
Texas Administrative Code Title 4 [“4 TAC”], Chapter 3 have clear
provisions that the Legislature provided that the A PPELLEE is a single
statewide quasi-government entity and a government unit in certain respects,
but is not and does not function as separate local political subdivisions in
each eradication zone exempt from statutes of limitations. Unlike political
subdivisions, the A is expressly “ acting under the supervision and
control of the commissioner ” of agriculture and the Texas Department of
Agriculture and is not governed by a separate locally elected and/or
appointed board for each eradication zone. Quite simply, A ’ S claims to collect debts are barred by the
four year limitations statute as the A is not exempt for such statutes
of limitations. EPLY TO ’ S TATEMENT OF F ACTS
B RIEF ’ Statement of Facts [Appellee’s Brief p. 1-2] does not assert that A is a political subdivision or deny that it is instead a
quasi statewide government entity/unit acting under the supervision and
control of the Texas Department of Agriculture and the Texas Commission
of Agriculture pursuant to T GRIC ODE § 74.101(a)(1). [A S p. 18-22.] A PPELLEE states that “ Veigel Farms, Inc. (“Veigel Farms”) is a Texas
corporation that farmed cotton for commercial production from 1999 to
2002… and, therefore, was subject to assessments… The Foundation levied
assessments against Veigel Farms … as a result of its cotton farming
operation… ”. [A ’ S B RIEF p. 1]. However, it is undisputed that
A only seeks to collect assessments including penalties and interest
for the 1999 and 2001 cotton crops which were undisputedly grown during
the time from August 27, 1996 until September 26, 2002 wherein Veigel
Farms, Inc. had lost its corporate privileges to legally transact any business
in Texas pursuant to Tex. Tax Code § 171.2515. As such, pursuant to Tex.
Tax Code § 171.255(b) Veigel Farms, Inc. is to be treated as a general
partnership consisting of Bob and Steve Veigel individually instead of a
corporation authorized to do business in Texas including growing cotton in
1999 and 2001. [A B RIEF p. 8, 10, and 14] states “[b] y letters dated March 8, 2000 and May 20, 2003
the Foundation demanded payment from Veigel Farms … and advised that
the Foundation will [sic] take legal action… ”. [A p. 1.]
However, such letters did not comply with T EX . GRIC . C ODE § 74.115 and
T DMIN ODE TIT . 4, § 3.75 which requires of right to an administrative
hearing concerning assessment of a penalty.
8. A PPELLEE states “ Appellant made his strategic legal decision to direct
Veigel Farms not to defend these lawsuits. ” [A PPELLEE ’ B RIEF p. 2.]
However, pursuant to Tex. Tax Code § 171.252, Veigel Farms Inc. was
legally prohibited from defending itself from such lawsuits. [A PPELLANT ’ S
B RIEF p. 10 and 14.] EPLY TO PPELLEE ’ S UMMARY OF THE A RGUMENT
does not cite any facts or legal authority that A is a political subdivision much less a qualifying political subdivision exempt
from some statutes of limitations under Tex. Civ. Prac & Rem. Code §
16.061. A PPELLEE (and its board) are state agencies only for purposes of
indemnification and exemption from taxation and A is a government
unit for purposes of immunity. [Appellant’s Brief p. 21-22.] A
clearly is not and does not function as a political subdivision in any respect
and does not qualify to be exempt from any statue of limitations otherwise
applicable in this Case. Given that it is undisputed that A seeks to recover the 1999
assessment which was due almost 11 years prior to filing this suit and the
2001 assessment which was due almost 6 years prior to filing this suit, claims are barred by limitations [A p. 15-16,
18–24.] Unlike political subdivisions with limited geographical jurisdiction, PPELLEE is a non-profit corporation which serves as the single quasi state
wide government entity/unit that has statewide jurisdiction in Texas (and
portions of New Mexico) which unlike most political subdivisions is subject
to the Texas Sunset Act and has a statutory limited existence. See T GRIC ODE § 74.127. In A ’ S August 2007 Texas Boll Weevil
Eradication Foundation Self Evaluation Report to the Texas Sunset
Commission, A makes repeated references to its statewide agency
jurisdiction including A ’ answer to question A in Section VII
Guide to Agency Programs on report page 21 stating that its
location/division was “statewide”. Unlike political subdivisions A is constitutionally prohibited
from assessing any taxes. [A PPELLANT ’ S B RIEF p. 23-24.] Unlike political
subdivisions with local control, A is under the expressed control and
supervision of the Texas Department of Agriculture and the Texas
Agriculture Commissioner who appoints at least 5 of the 21 members of board of directors with only 1 member being elected locally
from each eradication zone. [A p. 23.] EPLY TO S GRUMENT I SSUE 1
states “[o] mission from section 16.061 does not mean the Foundation does not qualify as a political subdivision. ” [A
p. 7.] A argues that “[u] nder Texas law, “including” or “includes”
are words of enlargement and not limitation or exclusive enumeration… . ”
However, in holding that a plain and literal reading of section 16.061
demonstrates that it does not apply to a municipal utility district as a state
agency, the Texas Supreme Court in Monsanto Co. v. Cornerstones Mun.
Util. Dist., 865 S.W.2d 937, 939-940 (Tex.1993) stated:
The goal of statutory construction is to give effect to the intent of the legislature . … “Where language in a statute is unambiguous, this court must seek the intent of the legislature as found in the plain and common meaning of the words and terms used .” … When the legislature has failed to define a word or term, courts will apply its ordinary meaning . … When applying the ordinary meaning, courts “may not by implication enlarge the meaning of any word in the statute beyond its ordinary meaning, and implications from any statutory passage or word are forbidden when the legislative intent may be gathered from a reasonable interpretation of the statute as it is written. ” … The language of section 16.061 is clear and unambiguous . The statute applies to “[a] right of action of this state, a county, an incorporated city or town, or a school district....” … The legislature has not defined “state” as it is used in section 16.061. Consequently, we apply its ordinary meaning….
The ordinary meaning of “state,” as it used by the Texas courts, envisions an entity [*940] having statewide jurisdiction rather than an entity having local or limited *10 jurisdiction. In Guaranty Petroleum Corp. v. Armstrong, 609 S.W.2d 529 (Tex.1980), we held that a navigation district created pursuant to article XVI, section 59 of the Texas Constitution was a political subdivision of the state, and “not a ‘department, board or agency of the state’....” Id. at 530. In reaching that conclusion, we recognized that [a] political subdivision differs from a department board or agency of the State. A political subdivision has jurisdiction over a portion of the State; a department, board or agency of the State exercises its jurisdiction throughout the State. Members of the governing body of a political subdivision are elected in local elections or are appointed by locally elected officials; those who govern departments, boards or agencies of the State are elected in statewide elections or are appointed by State officials . Political subdivisions have the power to assess and collect taxes; departments, boards and agencies do not have that power . Our examination of a number of statutes shows that the legislature has consistently recognized these distinctions between departments, boards or agencies on the one hand and political subdivisions on the other . Id. at 531 (footnote omitted)
This interpretation of “state” comports with the legislature’s ordinary use of the word. State government is defined generally in terms of the executive, legislative, and/or judicial branches, excluding entities with limited jurisdiction .
To read “political subdivision” into “state” would by implication enlarge “state,” and section 16.061, beyond their plain and ordinary meaning. Such implication is forbidden when, as here, the legislative intent may be determined from a reasonable interpretation of the statute as written. Applying the ordinary meaning of “state” to section 16.061, we conclude that it was the intent of the legislature to include within “state” only those entities having statewide jurisdiction. Therefore, we hold that section 16.061 does [*941] not apply to municipal utility districts such as Cornerstones. [emphasis added] With knowledge of and subsequent to Monsanto Co. v. Cornerstones
Mun. Util. Dist. and Texas Boll Weevil Eradication Foundation, Inc. v.
Lewellen, 952 S.W.2d 454 (Tex.1997), section 16.061 was amended in 1997
to expressly include “or a political subdivision of the state, including” “a
municipal utility district” and “, or an entity created under Section 52,
Article III, or Section 59, Article XVI, Texas Constitution” and the T EX . GRIC . C ODE C HAPTER 74 was amended. However, the legislature did not
and has not made any effort to include A in section 16.061 as a
political subdivision or otherwise expand A expressly limited
status as a “state agency” or “government unit” under T EX . GRIC . C ODE §
74.109 or T GRIC ODE § 74.129. As stated in 50 Tex. Jur. 3d Limitation of Actions § 20, the plain
section 16.061 does not apply to all political subdivisions just because of the
word “including”.
In addition to rights of actions brought by the State, a right of action of a political subdivision of the State, including a county, an incorporated city or town, a navigation district, a municipal utility district, a port authority, an entity acting under a statutorily specified chapter of the Transportation Code, a school district, or an entity created under statutorily specified constitutional provisions, is generally not barred by the statutory provisions governing limitations of actions. By the foregoing statute, the Legislature has exempted counties and certain, statutorily specified political subdivisions and entities —unlike ordinary litigants—from the limitations *12 defense in appropriate cases. [emphasis added] The intent of the legislature as found in the plain and common meaning of the words and terms used. Applying the ordinary meaning,
courts may not by implication enlarge the meaning of any word in the statute
beyond its ordinary meaning, and implications from any statutory passage or
word are forbidden when the legislative intent may be gathered from a
reasonable interpretation of the statute as it is written. The language of
section 16.061 is clear and unambiguous that it does not apply to the even if the A was nevertheless a political subdivision
created under Section 52, Article III, or Section 59, Article XVI, Texas
Constitution, which it is not. A was created under T ONST RT .
XVI, § 68. [A p. 20.] The A is expressly only a quasi government entity and
governmental unit for specially defined purposes whose jurisdiction is
statewide and not limited by a geographical region of each eradication zone.
There is one statewide foundation and one board that governs the entire state
under the expressed control and supervision of the Texas Department of
Agriculture and the Texas Agricultural Commission. There is not a
foundation and locally elected or appointed governing board for each
eradication zone required for each foundation to be considered or function as
a political subdivision. A tries to equate itself to the El Paso County Juvenile Board
held to be a political subdivision because the juvenile board’s ability to
impose fees not taxes under the Texas Family Code claiming that the has the authority to similarly impose assessments as fees.
[A p. 12.] However, unlike a juvenile board or other
political subdivision, A has no statutory authority to “impose” taxes,
assessments or penalties. A can only make recommendations of
assessment rates to the Texas Agriculture Commission through the Texas
Department of Agriculture. T EX . DMIN . C ODE TIT . 4, § 3.502 expressly
provides:
( a) Each year, the foundation shall recommend assessment rates , the date a notice of assessment will be sent, and assessment due dates for each active eradication zone to the department for consideration by the commissioner . (b) The Commissioner will review these proposals and determine the assessment rates and due dates for each zone. [emphasis added] T DMIN ODE TIT . 4, § 3.70 provides:
The Code, § 74.113, provides the foundation with the authority to collect assessments for each eradication zone as part of the foundation’s duties. The Code, § 74.121, provides that each person within an active eradication zone growing cotton shall furnish to the foundation, upon request, information *14 concerning the size and location of all commercial and noncommercial cotton. The Code, § 74.118, provides the department with the authority to require participation in an established eradication program. The Code, § 74.115, provides the department with the authority to place a lien on cotton produced and harvested that year from acreage that is subject to an assessment that is due and unpaid. The Code, § 74.115, also provides the department with the authority to assess administrative penalties for failure to pay an assessment when due, and the Code, § 74.118, provides the department with the authority to assess administrative penalties for failure to comply with department rules regarding participation in cost sharing and acreage reporting. The Code, § 74.116, provides the department with the authority to establish criteria for exemption from penalties assessed under the Code, § 74.115. [emphasis added] EPLY TO ’ S A RGUMENT I SSUE 2
, without citing any legal authority, asserts that PPELLANT ’s laches defense fails solely because of actions by A PPELLANT with knowledge of impending legal and not actions by the A .
[A B RIEF p. 16-17.] However, A does not deny that it
does not have the records or other evidence to explain how or why it or the
Texas Department of Agriculture did not enforce its statutory lien or
otherwise actually received timely payment of the assessments from Veigel
Farms Inc.’s sale of cotton with checks jointly paid to the Texas Department
of Agriculture. [A p. 11, and 17.] A does not deny
that relevant evidence and documents in the possession and control of the
A , Texas Department of Agriculture, the Plains Cotton Cooperative
Association, Ag Services of America, Inc., and Ag Acceptance Corporation
have also been lost or destroyed during the approximate 15 year delay in
A prosecuting this Case. [A PPELLANT S B RIEF p. 11-12, 14, 16-17.]
21. A has apparently also lost any record or evidence to show that
it complied with T GRIC ODE § 74.115 and T EX . A DMIN . C ODE TIT . 4, §
3.75 which requires of right to an administrative hearing concerning
assessment of a penalty. states Appellant “ … made his “strategic legal decision” to
direct Veigel Farms not to defend the lawsuits…. ” [A p. 16.]
However, pursuant to Tex. Tax Code § 171.252, Veigel Farms Inc. was
legally prohibited from defending itself from such lawsuits. Furthermore,
there is no evidence showing or otherwise indicating that A PPELLANT had
any knowledge of any impending legal action against him personally prior to
the filing of this suit on August 3, 2010 or that A PPELLANT was aware that
Veigel Farms Inc.’s corporate privileges had been forfeited until he filed
documents to reinstate with the Secretary of State in September 2002. has offer no reasonable justification for its almost 15 year
delay in prosecuting this Case or any evidence that A did not
change his position to his detriment and is not prejudiced by A PPELLEE S
unreasonable delay.
24. contends that A PPELLANT submitted no authority supporting
his contention of constructive notice that Veigel Farms Inc. had lost its
corporate privileges and that A did not have actual knowledge of
such until May 19, 2010. However, there is no evidence that A did
not have actual knowledge of Veigel Farms Inc.’s corporate forfeiture long
before 2010. PPELLANT cited that Veigel Farms Inc.’s corporate status was a
matter of public record that A had access which serves as a legal
basis for such contention. [A PPELLANT p. 10, 12, 16, and 26.] As surely knows, “constructive notice” or “constructive knowledge”
are common legal terms for notice or knowledge implied or imputed by the
law with regard to facts shown to the world properly recorded as matters of
public record. Although A has not found a case holding that A had
a legal duty to check Veigel Farms Inc.’s corporate status prior to making
the assessments at issue as there involving in rem actions where there is a
legal duty to check public deed and probate records, it is not uncommon
business and legal practice in the context of extending credit or contracting
with entities. For example, creditors commonly conduct lien and corporate
searches of the Secretary of State’s public records before extending credit
ensuring that the corporate debtor is in good standing and allowed to
conduct business in Texas. Given that the A PPELLEE relies on cotton acres
planted as reported to the Farm Service Agency, it is not an unreasonable
burden for the A PPELLEE to similarly search the Secretary of State’s online
records to confirm a cotton grower’s good standing as a proper party prior to
be given notice of assessments by the A . Had A PPELLEE taken
such reasonable legal precautions, it could not and should not have accessed
Veigel Farms Inc. as a “cotton grower”. EPLY TO RGUMENT I SSUE 3
contends that A PPELLANT failed to present and brief relevant material facts or argument or authority of his waiver defense.
[A p. 23.] However, there is un-contradicted evidence in
the record that A or the Texas Department of Agriculture were
instructed by A to receive jointly payable checks for the 1999 and
2001 cotton sales in a sufficient amount to timely satisfy the respective
assessments due at the time and that such checks must have been endorsed
by the A or the Texas Department of Agriculture as the checks were
apparently cashed. Yet, apparently the A PPELLEE or the Texas Department
of Agriculture did nothing to protect their statutory security interest in the
proceeds or show the assessments timely satisfied. [CR 198-199, 204-206] There is nothing in the record to contradict the likely reasonable
possibility that the Texas Department of Agriculture or A actually
received and endorsed the assessment payment from such joint checks but
somehow failed to have the A give the appropriate credit to satisfy
the assessments. Such documents and records of this transaction have
apparently been lost or destroyed by the A , the Texas Department of
Agriculture, Veigel Farms Inc., A , or other third parties over the
15 year delay of Appellee’s prosecution of this Case. Whether it is viewed
waiver, negligence, release, failure to mitigate, or something else there is a
least a dispute of material facts in the record concerning the endorsement of
the jointly payable checks and the actual receipt/application of such funds
sufficient to preclude summary judgment. EPLY TO ONCLUSION
makes a partial quote apparently from 50 Tex. Jur. 3d Limitations of Actions § 20. [A p. 23] The next sentence
therein indicates there are exceptions which are applicable in this Case
stating “ Therefore, the State is not bound by any statute of limitations unless
that statute expressly provides that it applies to the State … ”. In this Case, admits that its is not a state agency exempt from some limitations
but rather tries to argue that it should be exempt from some limitations
statutes pursuant to section 16.061 merely because it claims that it is a
political subdivision and that all political subdivisions are exempt under
section 16.061. There is simply no statute, regulation, or court case that supports contention that it is a political subdivision in form or function in
any context including exemption from some limitation statutes pursuant to
section 16.061. A jurisdiction is clearly statewide and not limited
to a local geographical area and is under the control and supervision of the
Texas Department of Agriculture and its Commissioner instead of a locally
elected or appointed board in each eradication zone. A does not even
set or impose its own assessment rates and penalties for non-payment. If the
Legislature ever intended A to be a political subdivision or any
other type of quasi government entity or governmental unit exempt from
some limitations pursuant to section 16.061, it could have clearly done so,
but it has not. ONCLUSION AND P RAYER FOR ELIEF
For these reasons stated herein above, A PPELLANT prays that the Court that determine that the Trial Court erred in reinstating the Case to the Docket
and subsequently denying A PPELLANT M F SJ and granting A S
M F SJ and reverse and rendered that A should take nothing and
immediate file releases of record of its judgment in this Case and any other
relief in law or equity that A PPELLANT may be entitled.
Respectfully submitted, : / / S TEVE V EIGEL _______________ TEVE V EIGEL , PRO SE 105 Quince Street Hereford, Texas 79045 (806) 231-1008 SVeig@aol.com *21 C ERTIFICATE OF C OMPLIANCE I certify that this document was produced on a computer using Microsoft Word 2003 using 14 point New Times Roman font and contains
3,678 words, as determined by Microsoft Word 2003 word-count function,
excluding the sections of the document listed in Texas Rule of Appellate
Procedure 9.4(i)(1).
/ S / S TEVE V EIGEL ____________ Steve Veigel, pro se ERTIFICATE OF S ERVICE I hereby certify that when a true and correct file marked copy of this e-filed document is available to me, it will be e-mailed that day to S counsel as follows:
Mr. Matt Dow at MDow@JW.com Mr. Andrew J. McKeon at AMcKeon@JW.com Jackson Walker L.L.P
100 Congress Avenue, Suite 1100 Austin, Texas 78701
/ / TEVE V EIGEL _____________ Steve Veigel