a substantial liberty interest is implicated when one is detained in a mental health facility
How later courts described this case
- a substantial liberty interest is implicated when one is detained in a mental health facility
- decision of court clerk acting as bail commissioner in setting bail did not insulate police officer from liability for violating plaintiffs right to be free from excessive bail
- “No final relief, including a permanent injunction, can be granted in a contested case without a determination of legal liability . . . .”
- characterizing arrest as 'curtailment of a person's liberty"
Written by the judges who cited it.
The opinion
ACCEPTED
03-15-00642-CV
7749114
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/9/2015 3:35:08 PM
JEFFREY D. KYLE
CLERK
CASE NO. 03-15-00642-CV
IN THE THIRD COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
AT AUSTIN AUSTIN, TEXAS
11/9/2015 3:35:08 PM
OFFICER DENNIS TUMLINSON, JEFFREY D. KYLE
Appellant, Clerk
vs.
CAROLYN BARNES,
Appellee.
APPELLANT TRAVIS COUNTY SHERIFF’S OFFICE SENIOR
CERTIFIED PEACE OFFICER DENNIS TUMLINSON’S BRIEF
Respectfully Submitted,
DAVID ESCAMILLA
County Attorney, Travis County
Travis County Attorney’s Office
P.O. Box 1748
Austin, Texas 78767
Telephone: (512) 854-9513
Facsimile: (512) 854-4808
andrew.williams@co.travis.tx.us
pat.kelly@co.travis.tx.us
/s/ Andrew M. Williams
Andrew M. Williams
State Bar No. 24068345
Patrick M. Kelly
State Bar No. 11228000
ATTORNEYS FOR APPELLANT
DATE: November 9, 2015
ORAL ARGUMENT NOT REQUESTED
IDENTITIES OF PARTIES AND COUNSEL
Trial Court Cause Number: D-1-GN-15-000877
Plaintiff: Carolyn Barnes
Attorneys for Plaintiff: Carolyn Barnes, Pro se
419 Indian Trail
Leander, Texas 78641
Barnes.legalguidance@gmail.com
Defendant: Officer Dennis Tumlinson
Attorneys for Defendant: Andrew Williams
Patrick Kelly
Assistant County Attorneys
P.O. Box 1748
Austin, Texas 78767
andrew.williams@co.travis.tx.us
pat.kelly@co.travis.tx.us
339216-1 214.1281 ii
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL ........................................................ ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES.....................................................................................iv
STATEMENT OF THE CASE .................................................................................vi
ISSUES PRESENTED............................................................................................ vii
STATEMENT OF THE FACTS ............................................................................... 1
SUMMARY OF THE ARGUMENT ........................................................................ 4
ARGUMENT AND AUTHORITIES ........................................................................ 5
Issue 1: Subject Matter Jurisdiction Precludes Appellee’s Claims Against a
Government Official Because Appellee Failed to Establish
Jurisdiction. ...........................................................................................6
1. Appellee failed to demonstrate the trial court’s jurisdiction and
failed to plead a viable cause of action in law or fact based on the
facts alleged, regardless of whether they were true. ........................6
2. Appellee’s claims cannot trigger the injunctive relief sought, since
merely requesting a declaratory judgment does not confer
jurisdiction where it would not otherwise exist. ..............................8
Issue 2: Affirmative Defenses of Official Immunity, Statute of Limitations and
Res Judicata are Dispositive on the Question of the Court’s
Jurisdiction, Notwithstanding the Merits of Any Potential Claim. ..... 11
1. Official Immunity Precludes Appellee’s Claims Because She
Failed to Properly Invoke a Waiver of Immunity. .........................11
2. Even if Appellee could successfully invoke a waiver of official
immunity, the statute of limitations has run on any potential claim.
........................................................................................................14
3. Res judicata bars this reiteration of Appellee’s previous lawsuit. .15
4. This cause of action is a collateral attack on a criminal judgment.
........................................................................................................16
CONCLUSION ........................................................................................................17
PRAYER ..................................................................................................................18
CERTIFICATE OF COMPLIANCE .......................................................................20
CERTIFICATE OF SERVICE ................................................................................20
339216-1 214.1281 iii
INDEX OF AUTHORITIES
Cases
Bagg v. University of Tex. Medical Branch, 726 S.W.2d 582 (Tex. App.—Houston
[14th Dist.] 1987, writ ref'd n.r.e.) ...........................................................................12
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) ................................5, 6
Carpenter v. Barner, 797 S.W.2d 99 (Tex. App.—Waco 1990, writ denied) ........12
City of Arlington v. Randall, 301 S.W.3d 896, (Tex. App.—Fort Worth Dec. 10,
2009, pet. filed) ..........................................................................................................7
City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex. 1994) ................................12
Cox v. Klug, 855 S.W.2d 276 (1993) .......................................................................14
Dear v. City of Irving, 902 S.W.2d 731 (Tex. App.—Austin 1995, writ requested)
..................................................................................................................................12
Financial Acquisition Partners, LP v. Blackwell, 440 F. 3d 278 (5th Cir. 2006) .....1
Ford v. Landmark Graphics Corporation, 875 S.W.2d 33 (Tex. App.— Texarkana
1994, no writ) ...........................................................................................................10
Hailey v. Glaser, No. 06-12-00065-CV, 2012 Tex. App. LEXIS 9657, at *3 (Tex.
App.—Texarkana Nov. 21, 2012, no pet. h.).............................................................8
Hinojosa v. Tarrant County, 355 S.W.3d 812 (Tex. App.—Amarillo 2011, no pet.)
..................................................................................................................................11
Lazarides v. Farris, 367 S.W.3d 788 (Tex. App.—Houston [14th Dist.] 2012, no
pet.).............................................................................................................................9
Rylander v. Caldwell, 23 S.W.3d 132 (Tex. App.—Austin 2000, no pet.) ...............5
Test Masters Educational Services v. Singh, et al. 428 F. 3d 559 (5th Cir. 2005)..16
Tex. A & M Univ. Sys. v. Luxemburg, 93 S.W.3d 410 (Tex. App.—Houston [14th
Dist.] 2002, pet. denied) .............................................................................................7
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W. 3d 217 (Tex. 2004) ..............5
Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002) 11
Tex. Natural Res. Conservation Comm’n v. Lakeshore Util. Co., 164 S.W.3d 368
(Tex. 2005) ...............................................................................................................11
Travis County v. Pelzel & Assocs., 77 S.W.3d 246 (Tex. 2002) .................. 6, 10, 11
Valenzuela v. Aquino, 853 S.W.2d 512 (Tex. 1993) ...............................................10
339216-1 214.1281 iv
Wayne Duddlesten, Inc. v. Highland Ins. Co., 110 S.W. 3d 85 (Tex.App – Houston
[1st Dist.] 2003, pet. denied) ....................................................................................14
Webb v. Glenbrook Owners Ass'n, 298 S.W.3d 374 (Tex. App.—Dallas 2009, no
pet.).............................................................................................................................9
Statutes
Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) ...................................................... vi, 5
Tex. Civ. Prac. & Rem. Code §101.026 ........................................................... 12, 13
Tex. Civ. Prac. & Rem. Code §101.101 ..................................................................14
Tex. Civ. Prac. and Rem. Code §16.003..................................................................14
Texas Code of Criminal Procedure Article 46B ........................................... 2, 16, 17
Rules
Fed. R. Civ. P. 41(b) ................................................................................................16
Tex. R. App. P. 28.1................................................................................................. vi
Tex. R. App. P. 9.4...................................................................................................20
Tex. R. App. P. 9.4(i)(3) ..........................................................................................20
Tex. R. Civ. P. 683 .....................................................................................................9
339216-1 214.1281 v
STATEMENT OF THE CASE
Nature of the Case: Carolyn Barnes (“Appellee”) sued Dennis Tumlinson,
Travis County Sheriff’s Office Senior Certified Peace
Officer (“Appellant”) and five other Travis County
employees, alleging violations of civil and
constitutional rights under the Texas Constitution, a
“continuing tort”, global conspiracy, assault and
aggravated perjury, seeking monetary damages,
injunctive relief and a declaratory judgment. Travis
County Defendants moved the trial court to dismiss the
cause of action for lack of subject matter jurisdiction,
because Barnes failed to establish a waiver of
immunity. Travis County Defendants filed an amended
plea to the jurisdiction and a motion to dismiss pursuant
to Chapter 13, because Barnes filed an impermissible
retrospective ultra vires action, filed outside the statute
of limitations and re-plead a matter already foreclosed
by res judicata. The trial court granted the Chapter 13
Motion to Dismiss and Amended Plea to the
Jurisdiction with respect to all but one Travis County
Defendant, Officer Tumlinson. Appellant files this
accelerated interlocutory appeal under Tex. Civ. Prac.
& Rem. Code § 51.014(a)(8) and Tex. R. App. P. 28.1.
The Trial Court: The Honorable Orlinda Naranjo in the 419th Judicial
District Court of Travis County, Texas heard the
Chapter 13 Motion to Dismiss and Amended Plea to the
Jurisdiction on behalf of Appellant.
Trial Court’s Disposition: The trial court denied Appellant’s Chapter 13 Motion to
Dismiss and Amended Plea to the Jurisdiction with
respect to Officer Tumlinson.
Parties at Trial: Plaintiff: Carolyn Barnes
Defendant: Dennis Tumlinson
339216-1 214.1281 vi
ISSUES PRESENTED
Issue 1: Subject Matter Jurisdiction Precludes Appellee’s Claims Against a
Government Official Because Appellee Failed to Establish
Jurisdiction.
Issue 2: Affirmative Defenses of Official Immunity, Statute of Limitations and
Res Judicata are Dispositive on the Question of the Court’s
Jurisdiction, Notwithstanding the Merits of Any Potential Claim.
339216-1 214.1281 vii
STATEMENT OF THE FACTS
On January 8, 2010, Carolyn Barnes (“Appellee1” and/or “Barnes”) was
arrested by Travis County Sheriff’s Office Senior Certified Peace Officer Dennis
Tumlinson (“Officer Tumlinson”) for assaulting Officer Tumlinson while going
through the security screening process at the Travis County Criminal Justice
Complex. Barnes was charged with Assault on a Public Servant, Cause Number D-
1-DC-10-200140, State of Texas vs. Carolyn Machalec Barnes, 147th Judicial District
Court, Travis County, Texas. 2
While out on personal bond, on May 11, 2010, Barnes was arrested for
shooting at a United States Census Worker. She was charged with the offense of
Aggravated Assault with a Deadly Weapon by the Williamson County Sheriff’s
Office deputies, Cause Number 10-663-K368, State of Texas vs. Carolyn M. Barnes,
368th Judicial District Court, Williamson County, Texas.
Travis County Cause Number D-1-DC-10-200140 was dismissed on July 12,
2010. The case was refiled on July 12, 2010, as an Interference with the Duties of a
Public Servant in State of Texas vs. Carolyn Barnes, Cause Number C-1-CR-10-
401111, County Court at Law Number 3, Travis County, Texas. Barnes was found
1
Plaintiffs in the District Court Cause Number D-1-GN-15-000877 are listed as Carolyn
Barnes, individually and on behalf of her children.
2
A District Court may rely on public documents in deciding a Motion to Dismiss without
converting it into a motion for summary judgment. Financial Acquisition Partners, LP v.
Blackwell, 440 F. 3d 278, 286 (5th Cir. 2006).
339216-1 214.1281 1
incompetent to stand trial and was committed to the Kerrville State Hospital for
mental health services. Cause Number C-1-CR-10-401111 was dismissed on
October 23, 2012, pursuant to Texas Code of Criminal Procedure Article 46B.009
which provides time credits towards sentencing for persons who are confined in a
mental health facility.
A jury found Barnes guilty on June 11, 2013, in Williamson County Cause
Number 10-663-K368, and she was sentenced to three years in the Texas Department
of Criminal Justice Institutional Division. Barnes has filed numerous mandamus
writs, habeas corpus applications and/or writs of prohibition regarding Cause
Number 10-663-K368.
Barnes filed suit on January 11, 2011, against media individuals as well as
Officer Tumlinson in Cause Number D-1-GN-11-000106, Carolyn Barnes vs. Austin
American Statesman, et al., in the 353rd Judicial District Court, Travis County, Texas.
In the 2011 civil lawsuit, Barnes alleged the defendants in the 2011 civil lawsuit
engaged in defamation per se and re-publication of libel, slander and defamation,
among many other allegations. The matter was ultimately dismissed for want of
prosecution on August 20, 2013.
On January 9, 2012, Barnes filed a lawsuit in Federal District Court, Cause
Number 1:12-CV-00028LY. In that cause, she sued many of the same individuals
that she has sued in the instant case including Officer Tumlinson. Her claims were
339216-1 214.1281 2
dismissed with prejudice for failure to comply with a court order to clarify and
shorten her pleadings. March 18, 2014, a Final Order was issued in Federal District
Court on March 18, 2014, barring Plaintiff from further filings in that Cause of
Action. On March 17, 2015, in appeal number 14-50350, The Fifth Circuit affirmed
the District Court’s order in dismissing her case in 1:12-CV-00028-LY.
On March 6, 2015, Barnes filed the case at bar against approximately 79
individuals, which included the Appellant. Barnes alleged gross abuses of power,
acts of violence, fraud on the court, obstruction of justice, usurpation of power,
global conspiracy, violations of public trust and unwarranted impositions of cruel and
unusual punishment by all named Defendants. Barnes requested that the court enter
declaratory judgment and injunctive relief based on actions taken pursuant to the
criminal arrests and subsequent prosecution in the above-referenced criminal cases.
One of her claims was against a federal worker. For that reason, the Federal
Defendant filed Notice of Removal in State Court on April 17, 2015, and the case
was removed to Federal District Court. However, Officer Tumlinson, along with five
other Travis County Defendants, having not yet answered, did not receive this notice
when filed.
On April 20, 2015, Officer Tumlinson, along with five other Travis County
Defendants, filed their Rule 91a Motion to Dismiss, Plea to the Jurisdiction, and in
the Alternative, Original Answer to Plaintiff’s Original Petition. Barnes was properly
339216-1 214.1281 3
noticed and served with that filing. Once Officer Tumlinson received notice of the
removal and out of an abundance of caution, Officer Tumlinson, along with five
other Travis County Defendants, filed a Rule 12(b)(6) Motion to Dismiss in Federal
Court on April 24, 2015. Federal Court entered an order on June 4, 2015, severing
all defendants who are not United States Employees and remanding those claims to
state court.
On July 9, 2015, Officer Tumlinson, along with five other Travis County
Defendants, filed their Amended Rule 91(a) Motion to Dismiss, Plea to the
Jurisdiction and Amended Answer to incorporate 12(b)(6) motion into state court
pleadings. On July 23, 2015, Officer Tumlinson, along with five other Travis County
Defendants, filed their Chapter 13 Motion to Dismiss. On September 9, 2015, the
419th Judicial District Court, Travis County, Texas, heard the Travis County
Defendant’s Chapter 13 Motion to Dismiss and their Amended Plea to the
Jurisdiction. The motion was granted with respect to all other Travis County
Defendants and Denied with respect to Officer Tumlinson.
SUMMARY OF THE ARGUMENT
Carolyn Barnes sued approximately 79 defendants in Travis County alleging
conspiracy, violation of civil and constitutional rights under the Texas
Constitution, assault on the job by an officer and aggravated perjury, allegedly
arising in part out of her 2010 arrest. Officer Tumlinson, along with five other
339216-1 214.1281 4
Travis County Defendants, moved the trial court to dismiss the case for lack of
jurisdiction, due to a variety of defenses. The trial court granted the Chapter 13
Motion to Dismiss and Amended Plea to the Jurisdiction with respect to all Travis
County Defendants except the arresting Travis County Sheriff’s Officer,
Tumlinson. While typically only a final adjudication on the merits can be appealed,
interlocutory appeals are permitted in the case of a plea to the jurisdiction. Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). A plea to the jurisdiction, without
regard to the merits of the case, would properly be extended to include Officer
Tumlinson, as well. Officer Tumlinson retains immunity from suit, since the trial
court lacks subject matter jurisdiction and due to the affirmative defenses of
immunity, statute of limitations and res judicata.
ARGUMENT AND AUTHORITIES
Standard of Review
The trial court lacked subject matter jurisdiction over Barnes’ claims,
because the suit was not permitted by law. See Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W. 3d 217, 226 (Tex. 2004). A plea to the jurisdiction challenges
the trial court’s authority to determine the subject matter of a specific cause of
action. Rylander v. Caldwell, 23 S.W.3d 132, 135 (Tex. App.—Austin 2000, no
pet.). The purpose of a plea to the jurisdiction is to dismiss a cause of action
without regard to whether the claim has merit. Bland Indep. Sch. Dist. v. Blue, 34
339216-1 214.1281 5
S.W.3d 547, 554 (Tex. 2000). In order to prevail, the party asserting the plea to
the jurisdiction must show that even if all the allegations in the plaintiff’s pleadings
are taken as true, there is an incurable jurisdictional defect apparent from the face
of the pleadings, rendering it impossible for the plaintiff’s petition to confer
jurisdiction on the trial court. Id. It is plaintiff’s burden to plead a clear and
unambiguous waiver of immunity. Travis County v. Pelzel & Assocs., 77 S.W.3d
246 (Tex. 2002). Because subject matter jurisdiction presents a question of law,
the appellate court reviews the district court’s decision de novo. Mayhew v. Town
of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Further, “a court deciding a plea
to the jurisdiction is not required to look solely to the pleadings but may consider
evidence and must do so when necessary to resolve the jurisdictional issues
raised.” Bland Independent School Dist., 34 S.W.3d at 555.
Issue 1: Subject Matter Jurisdiction Precludes Appellee’s Claims Against
a Government Official Because Appellee Failed to Establish
Jurisdiction.
1. Appellee failed to demonstrate the trial court’s jurisdiction and
failed to plead a viable cause of action in law or fact based on the
facts alleged, regardless of whether they were true.
In a plea to the jurisdiction, it is plaintiff’s burden to plead a clear and
unambiguous waiver of immunity. Travis County v. Pelzel & Assocs., 77 S.W.3d
246 (Tex. 2002). Appellee did not establish a waiver of immunity, as is discussed
in more depth below, nor did she establish jurisdiction based on the facts she
339216-1 214.1281 6
alleged. Regardless of the merits of Appellee’s case, the trial court lacks
jurisdiction over this matter.
Appellee’s attempt to cast the suit as one of a personal nature fails to
circumvent the reality of the suit, which is filed against Appellant in his official
capacity. While immunity is further discussed in the affirmative defenses section
of this brief and while a plea to the jurisdiction does not depend on the truth or
falsity of the allegations, Appellee did bear the burden of establishing that, if
allegations were true, there would be a viable cause of action. Appellee, however,
did not invoke a waiver of immunity and did not establish jurisdiction.
Appellee’s claims should have been dismissed because her legal theories are
indisputably meritless. Specifically, she asserts her claims for declaratory,
injunctive and monetary relief arise out of violations of the Texas Constitution.
However, under the Texas Supreme Court’s decision in City of Beaumont v.
Bouillion and its progeny, no private cause of action exists against a governmental
entity or its officials for money damages relating to alleged violations of Texas
constitutional rights. See City of Arlington v. Randall, 301 S.W.3d 896 (Tex.
App.—Fort Worth Dec. 10, 2009, pet. filed) (citing City of Beaumont v. Bouillion,
896 S.W.2d 143, 147 (Tex. 1995), and holding that there is no private right of
action for damages arising from unconstitutional conduct under Texas
constitution’s free speech and free assembly clauses); Tex. A & M Univ. Sys. v.
339216-1 214.1281 7
Luxemburg, 93 S.W.3d 410, 425 (Tex. App.—Houston [14th Dist.] 2002, pet.
denied) (op. on reh’g) (holding Bouillion applies to bar private right of action for
damages arising from other alleged Texas constitutional violations); Univ. of Tex.
Sys. v. Courtney, 946 S.W.2d 464, 468-69, 471 (Tex. App.—Fort Worth 1997, writ
denied) (op. on reh’g) (holding Bouillion applies to alleged Texas constitutional
due process provision violations by individual public officials and governmental
entities).
Accordingly, Barnes’ claims for damages, which are based solely on alleged
violations of her Texas constitutional rights, are frivolous and lacking an arguable
basis in law. Moreover, because these claims rely on an indisputably meritless
legal theory, Barnes cannot remedy this deficiency by amending her pleadings.
Rather, the matter is jurisdictionally barred.
Appellee has failed to assert a cause of action or plead facts necessary to
overcome the immunities to which Appellant is entitled. Thus, Appellee’s claims
against Officer Tumlinson should be dismissed.
2. Appellee’s claims cannot trigger the injunctive relief sought, since
merely requesting a declaratory judgment does not confer
jurisdiction where it would not otherwise exist.
To the extent that Barnes seeks a general injunction requiring compliance
with the law, such an injunction cannot be granted. See Hailey v. Glaser, No. 06-
12-00065-CV, 2012 Tex. App. LEXIS 9657, at *3 (Tex. App.—Texarkana Nov.
339216-1 214.1281 8
21, 2012, no pet. h.). An injunction must be definite, clear and precise; it must
inform the defendant of the acts restrained without calling on the defendant to
make inferences. Tex. R. Civ. P. 683; Webb v. Glenbrook Owners Ass’n, 298
S.W.3d 374, 384 (Tex. App.—Dallas 2009, no pet.). An injunction is not available
to “prevent commission of wrongs not imminently threatened”. Webb, 298 S.W.3d
at 384. Barnes has not specified any imminently threatened wrong; her allegations
simply catalogue past events 3.
Moreover, injunctive relief is not available unless Barnes establishes that she
would have no adequate remedy at law. See Lazarides v. Farris, 367 S.W.3d 788,
803 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (party seeking injunctive
relief preventing alleged ultra vires acts must plead and prove, among other things,
existence of imminent harm, irreparable injury and absence of adequate remedy at
law). Here, if in the future Appellant fails to comply with duties in connection
with any future criminal charges against Barnes, Barnes may bring the matter to
the attention of the judge presiding over the proceeding. Enriquez v. Rodriguez-
Mendoza, 2013 Tex. App. LEXIS 1039, *7-8 (Tex. App.—Austin Feb. 1, 2013).
Appellee is not entitled to injunctive relief, as she has not pleaded a cause of
action against the Appellant or proven that he has engaged in a wrongful act.
Appellee pleads in general terms that a conspiracy exists and alleges gross abuses
3
Barnes currently has an adequate remedy at law for judicial review of her Williamson County
conviction, through her pending appeal, Cause Number 03-13-00434-CR.
339216-1 214.1281 9
of power, acts of violence, fraud on the court, obstruction of justice, usurpation of
power, violations of public trust and unwarranted impositions of cruel and unusual
punishment by Appellant and the other originally named Defendants. However, she
failed to show how Appellant committed a wrongful act.
Without a cause of action or a wrongful act, an applicant cannot prove a
probable right to recovery. Ford v. Landmark Graphics Corporation, 875 S.W.2d
33, 34-35 (Tex. App.—Texarkana 1994, no writ). These remedies are available
only if liability is established under a cause of action. See Valenzuela v. Aquino,
853 S.W.2d 512, 514 n.2 (Tex. 1993) (“No final relief, including a permanent
injunction, can be granted in a contested case without a determination of legal
liability . . . .”); Cooper v. Litton Loan Servicing, LP, 325 S.W.3d 766, 769 (Tex.
App.—Dallas 2010, pet. denied) (noting that “[a] permanent injunction is not a
cause of action but an equitable remedy,” and that “[t]o obtain an injunction a party
must first assert a cause of action”). The Petition failed to state any theory or basis
for this recovery. Appellee fails to identify a cause of action for which she may
recover. Appellee must plead and prove a clear and unambiguous waiver of
sovereign immunity to assert a viable cause of action. Travis County v. Pelzel, 77
S.W.3d 246 (Tex. 2002). Having failed to do so, on the face of the pleadings,
Appellee does not have a probable right to recovery. Because her case is
339216-1 214.1281 10
frivolous 4 and there is no prospective basis for her claims, there is no room to
consider injunctive or declaratory relief. Thus, those claims for relief are
jurisdictionally barred, as well.
Issue 2: Affirmative Defenses of Official Immunity, Statute of Limitations
and Res Judicata are Dispositive on the Question of the Court’s
Jurisdiction, Notwithstanding the Merits of Any Potential Claim.
1. Official Immunity Precludes Appellee’s Claims Because She
Failed to Properly Invoke a Waiver of Immunity.
The burden was on Appellee to plead a clear and unambiguous waiver of
immunity. Travis County v. Pelzel & Assocs., 77 S.W.3d 246 (Tex. 2002). It is
well established in Texas that only the legislature can waive governmental
immunity and it must do so by clear and unambiguous language. Hinojosa v.
Tarrant County, 355 S.W.3d 812, 818-819 (Tex. App.—Amarillo 2011, no pet.).
“This determination is singularly that of the legislature.” Id. citing Tex. Natural
Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, at 857 (Tex. 2002) and
Tex. Natural Res. Conservation Comm’n v. Lakeshore Util. Co., 164 S.W.3d 368,
377 (Tex. 2005). Here, there was no legislative waiver of immunity, nor did
Appellee try to invoke one.
A government agent who does not violate clearly established law is entitled
to sovereign/official immunity. City of Lancaster v. Chambers, 883 S.W.2d 650,
4
On November 5, 2015, in a related lawsuit that Barnes had filed against the Austin American
Statesman, KXAN TV and other media defendants arising out of the same episodes contained
here, Barnes’ case was dismissed and she was declared to be a vexatious litigant.
339216-1 214.1281 11
656 (Tex. 1994). Appellant asserts that in connection with the incident which
forms the basis of this lawsuit, he was performing discretionary duties within the
course and scope of his employment and is therefore immune from liability by
virtue of his official immunity (I C.R. at 358). See id. at 653. Appellant asserts
that official immunity acts as an affirmative bar to Appellee’s recovery. See Tex.
Civ. Prac. & Rem. Code §101.026.
Furthermore, official immunity is effective against all claims, regardless of
whether they are lodged against the individual possessing it in his official or
personal capacity. See Dear v. City of Irving, 902 S.W.2d 731, 737 (Tex. App.—
Austin 1995, writ requested); Carpenter v. Barner, 797 S.W.2d 99, 101 (Tex.
App.—Waco 1990, writ denied); Bagg v. University of Tex. Medical Branch, 726
S.W.2d 582, 586 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.).
Appellee’s claims for relief are affirmatively barred by the doctrine of
sovereign immunity. The Texas Tort Claims Act excludes recovery for those acts
that are the product of discretionary powers and insomuch as a suit against a public
official in his official capacity is a suit against the governmental entity. Travis
County is a political subdivision of the State of Texas and enjoys sovereign
immunity, both from suit and from liability, except insofar as the Texas Legislature
has provided a limited waiver of its sovereign immunity by way of the Texas Tort
Claims Act. Appellant hereby affirmatively pleads and asserts a claim to and defense
339216-1 214.1281 12
of sovereign immunity, including, but not limited to, the exemptions, exceptions and
limitations of the Texas Tort Claims Act.
At all times relevant to this cause of action, Appellant acted in his official
capacity as an employee of Travis County, Texas, and with the good faith belief that
his actions were proper under the Constitution and laws of the state (I C.R. at 358).
Further, a government agent who does not violate clearly established law is entitled
to official immunity. Appellant asserts that in connection with the incident which
forms the basis of this lawsuit, Travis County’s employee Officer Tumlinson was
performing discretionary duties within the course and scope of his employment, in
good faith and is therefore immune from liability by virtue of his official immunity.
Appellant asserts that his official immunity acts as an affirmative bar to Appellee’s
recovery. See also Tex. Civ. Prac. & Rem. Code §101.026.
Appellee failed to perform all of the conditions precedent to the filing of this
lawsuit under the Texas Tort Claims Act. She failed to provide the statutorily
required notice under §101.101 of the Texas Tort Claims Act. Failure of a
Claimant under the Texas Tort Claims Act to give requisite timely notice of claim
perpetually bars claimant’s action and is a plea in bar, the purpose of which is to
forever preclude the cause of action pleaded, even if all of plaintiffs’ allegations
are proven as true. See Cox v. Klug, 855 S.W.2d 276 (1993). Tex. Civ. Prac. &
Rem. Code §101.101.
339216-1 214.1281 13
2. Even if Appellee could successfully invoke a waiver of official
immunity, the statute of limitations has run on any potential
claim.
All claims against Officer Tumlinson arise out of the January 8, 2010 arrest
and subsequent prosecution of Appellee Barnes, therefore the statute of limitations
has run on any potential claim, pursuant to Tex. Civ. Prac. and Rem. Code §16.003.
If the plaintiffs’ suit is not permitted by law, the court by nature lacks jurisdiction
to hear it. See Wayne Duddlesten, Inc. v. Highland Ins. Co., 110 S.W. 3d 85, 96-
97 (Tex.App – Houston [1st Dist.] 2003, pet. denied). Appellee complains about
actions that occurred during Barnes’ January 2010 arrest and subsequent
prosecution in Travis County as well as Barnes’ May 2010 arrest and subsequent
prosecution in Williamson County. All Travis County criminal charges against
Appellant were dismissed October 23, 2012. Appellant has failed to state a claim
that would fall within the statute of limitations. The statute of limitations runs
from the time of the act itself, which was in 2010. This lawsuit was filed on March
6, 2015, well beyond the expiration of the statute of limitations.
Thus, acts alleged in relation to this claim are barred by limitations, since
they occurred more than two years before Appellee filed this suit. Thus, the suit
cannot be allowed, regardless of its merits.
339216-1 214.1281 14
3. Res judicata bars this reiteration of Appellee’s previous lawsuit.
Appellee previously filed suit against Officer Tumlinson in Federal Court,
alleging claims arising out of the same set of facts. Thus, this suit is barred by the
affirmative defense of res judicata. The case at bar is very similar to Barnes’
previous case that was dismissed by the United States District Court, Western
District of Texas, Cause Number 1:12-CV-00028-LY. The Travis County
Defendants sued in the previous case were the same ones sued in this case,
although Officer Tumlinson is the only one for whom the case is ongoing. The
facts are essentially the same in both cases. For example, in the current case,
Barnes complains about an alleged “conspiracy that began in 2010 in Travis
County and has continued unabated...” (I C.R. at 5). Likewise in the Third
Amended Complaint from her previous lawsuit, 1:12-CV-00028-LY, she alleges:
“[her constitutional rights] were clearly established in 2010” and “the conspiracy is
continuing and ongoing.” See Pl.’s Third Am. Comp. at 3-4, ¶2. Moreover,
Appellant stated in a recent hearing that the allegations were of, “a continuing tort
that started in May of 2010 with the same core men” (I R.R. at 53:22-24).
The test for whether res judicata applies has four elements: (1) the parties are
identical or in privity; (2) the judgment in the prior matter was rendered by a court
of competent jurisdiction; (3) the prior action was concluded by a judgment on the
merits; and (4) the same claim or cause of action was involved in both actions.
339216-1 214.1281 15
Test Masters Educational Services v. Singh, et al. 428 F. 3d 559, 571 (5th Cir.
2005). Here all of these elements are met: Appellant, like the other Travis County
Defendants named in the case at bar as originally filed, were all named in the
previous federal lawsuit. Certainly the United States District Court Western
District of Texas is a Court of Competent Jurisdiction. Under the black letter law
of Fed. R. Civ. P. 41(b), the prior action was concluded by a judgment on the
merits because a dismissal under that Rule, “operates as an adjudication on the
merits.” To determine the fourth element, whether two suits involve the same
claim or cause of action for res judicata purposes, courts use a transactional test
“under which a prior judgment’s preclusive effect extends to all rights of the
plaintiff with respect to all or any part of the transaction or series of connected
transactions out of which the original action arose.” Id. at 571.
As described above, both the case at bar and 1:12-CV-00028-LY deal with
allegations of conspiracy between Travis County and Williamson County officials
with an alleged intent to harm Ms. Barnes. For these reasons, res judicata applies
and thus the trial court does not have jurisdiction over it.
4. This cause of action is a collateral attack on a criminal judgment.
On or about October 23, 2012, the Travis County Court at Law Number 3
dismissed Cause Number C-1-CR-10-401111, State of Texas vs. Carolyn Barnes,
pursuant to Texas Code of Criminal Procedure Article 46B.009. On or about June
339216-1 214.1281 16
11, 2013, a jury found Barnes guilty in Williamson County Cause Number 10-663-
K368. As a result of being found guilty, Ms. Barnes was sentenced to three years
in the Texas Department of Criminal Justice Institutional Division (TDCJ-ID) on
June 11, 2013. Barnes appealed this conviction and said appeal is currently
pending with the Texas Third Court of Appeals, Case Number 03-13-00434-CR.
Further, Barnes has filed several Writs of Mandamus, Habeas Corpus Applications
and a Writ of Prohibition with the appeals courts and the Texas Supreme Court, all
of which have been denied.
Barnes has failed to plead any discernible cause of action against Officer
Tumlinson. Rather, it appears from Appellee’s pleading that she is attempting to
have the trial court enter a declaratory judgment that would contradict the findings
of the Williamson County Jury in June 11, 2013, in Cause Number 10-663-K368.
Further, Appellee is attempting to have the trial court enter a declaratory judgment
that would contradict the Travis County Court at Law Number 3’s court order for a
Texas Code of Criminal Procedure Article 46B commitment.
By asserting these claims in a civil court, Appellee is seeking to undo the
criminal judgment rendered against her. As such, the claim is a collateral attack
upon the judgment over which the trial court has no jurisdiction.
///
339216-1 214.1281 17
CONCLUSION
The trial court erred in not granting the Appellant’s Chapter 13 Motion to
Dismiss and/or Amended Plea to the Jurisdiction. It is a matter of law that a cause
of action does not exist for Barnes’ allegations under the procedural posture in
which she presented it. There are numerous incurable defects on the face of the
pleadings that foreclose the trial court’s jurisdiction in this matter. Even if there
were a basis for overcoming Appellant’s immunity, Appellee failed to invoke it.
Furthermore, if she had managed to properly invoke a waiver of immunity, the
statute of limitations would still prevent the claim. Independently of those
barricades, res judicata would independently foreclose the action. Moreover, the
injunctive relief Appellee seeks is not available under these retrospective
circumstances. Appellee has no viable claim, regardless of the truth or falsity of
her allegations.
PRAYER
Based on all of the above, Appellant requests the Court reverse the Trial
Court’s order and render judgment in favor of Travis County Sheriff’s Office
Senior Certified Peace Officer Dennis Tumlinson, dismissing all claims for lack of
subject matter jurisdiction. Appellant seeks all further relief to which he may be
justly entitled.
339216-1 214.1281 18
Respectfully Submitted,
DAVID ESCAMILLA
County Attorney, Travis County
Travis County Attorney’s Office
P.O. Box 1748
Austin, Texas 78767
Telephone: (512) 854-9513
Facsimile: (512) 854-4808
By: /s/ Andrew M. Williams
Andrew M. Williams
State Bar No. 24068345
Patrick M. Kelly
State Bar No. 11228000
ATTORNEYS FOR APPELLANT
DENNIS TUMLINSON
339216-1 214.1281 19
CERTIFICATE OF COMPLIANCE
By my signature below, pursuant to Tex. R. App. P. 9.4(i)(3), I hereby certify
that the foregoing Appellant Travis County Sheriff’s Office Senior Certified Peace
Officer Dennis Tumlinson’s Brief contains 4437 words and is compliant as to form
pursuant to Tex. R. App. P. 9.4.
/s/ Andrew M. Williams
Andrew M. Williams
Patrick M. Kelly
Assistant County Attorneys
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Appellant Travis
County Sheriff’s Office Senior Certified Peace Officer Dennis Tumlinson’s Brief
was served in accordance with the Texas Rules of Appellate Procedure by electronic
filing and electronic service on this 9th day of November, 2015, as follows:
Via Electronic Filing Via Electronic Service
Jeffrey D. Kyle, Clerk Carolyn Barnes
Court of Appeals 419 Indian Trail
Third District of Texas Leander, TX 78641
P.O. Box 12547 Barnes.legalguidance@gmail.com
Austin, Texas 78711
/s/ Andrew M. Williams
Andrew M. Williams
Patrick M. Kelly
Assistant County Attorneys
339216-1 214.1281 20
CASE NO. 03-15-00642-CV
IN THE THIRD COURT OF APPEALS
AT AUSTIN
OFFICER DENNIS TUMLINSON,
Appellant,
vs.
CAROLYN BARNES,
Appellee.
APPELLANT’S APPENDIX
LIST OF DOCUMENTS
1. Plaintiff’s Third Amended Original Complaint (Cause No. 1:CV-00028-LY)
............................................................................................................. TAB A
2. Order (Cause No. 1:12-CV-00028-LY) ............................................... TAB B
339216-1 214.1281 21
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 1 of 57
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
F R.ED
CAROLYN BARNES § ZZ
JUL 1 6
And Her Children §
Plaintiffs §
§
V. §
§
DENNIS G. TUMLINSON, §
GREG HAMILTON, TRAVIS COUNTY §
SHERIFF DEPARTMENT, BILL SWAIM, §
DAVID ESCAMILLA, IRMA GUERRERO, CIVIL ACTION # A-12-CA-028
ALLISON SAENZ, RON MORGAN, § 42 USC § 1983
COTTON, ROBERT LERMA, THREE § 42 USC § 1985 (2), § 1988
UNIDENTIFIED DEPUTIES, DEBORAH § 18 USC § 241, 242
KLEKAR, TRAVIS COUNTY, TEXAS § 18 USC § 1961-1968
AUSTIN AMERICAN STATESMAN, § 18USC 1512
AUSTIN LEGAL BLOG, ZACH RYALL, § 18 USC § 1513
ONE THAT KNOWS, ANOTHER THAT § 18 USC § 1343
KNOWS, LIBERALS R. CLUELESS, § 18 USC § 1957
NATIVESON, HURST, ANONYMOUS, § Tex. CCP 46B
ERIN CARGILE, KXAN, § Tex. Health & Safety Code,
NOELLE NEWTON, JIM BERGAMO, § Title 7, Subtitle C,
KVUE-TV, § Chapters 571, 574
KEYE, §
JAMES WILSON, WILLIAMSON § JURY TRIAL
COUNTY SHERIFF DEPARTMENT, §
KATHLEEN GITTEL, §
HAROLD POPPA, §
MICHAEL SCHEFFLER, §
D. "DIANE" HERNANDEZ, §
NICK RICHTER, §
RUSSELL TRAVIS, §
PAUL BOGAN, JOHN FOSTER, §
ROBERT NEWELL, §
PETE HUGHEY, §
DOUG WAGGONER, §
BELINDA BARTZ, §
JEREME BRINKMANN, §
RICHARD DE LA VEGA, §
JOHN FOSTER, §
DALE RYE, DEE HOBBS, §
SUZANNE BROOKS, §
JOHN BRADLEY, TRAVIS MCDONALD, §
Tab A
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 2 of 57
ROBERT MCCABE, ALAN SCHREIBER, §
KEN ANDERSON, §
BURT CARNES, §
DOUG SHAVER, §
MARTY GRIFFITH, §
JOHN CLIFTON, §
DUSTY HUMES, §
DAVID RUPPART, §
WILLIAMSON COUNTY, TEXAS §
Defendants §
PLAINTIFF'S THIRD AMENDED ORIGINAL COMPLAINT
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW Plaintiffs, Carolyn Barnes, (hereinafter referred to as "BARNES"),
and her children, and files this the Third Amended Original Complaint, and brings this
action against said Defendants, jointly and severally, because they have willfully
subjected Plaintiffs to the deprivation of rights, privileges, or immunities as guaranteed
by the Constitution and laws of the United States of America and the State of Texas, and
in support thereof would show the following:
I. VENUE
1. Venue is appropriate in the Western District of Texas, Austin Division
because the plaintiffs and the named defendants reside or conduct business in the
Western District.
2. Venue is also proper in the Western District of Texas, Austin Division, in
that all, or a substantial part of the acts and omissions forming the basis of these claims
occurred in the Western District of Texas.
3. Venue is proper in the Western District of Texas, Austin Division, as this
is the district where the claim arose in accordance to 29 U.S.C. § 139 1(b).
2
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 3 of 57
II. JURISDICTION
1. Jurisdiction over these claims and causes of action is appropriate in federal
district court pursuant to 18 U.S.C. §l96l et seq. and 42 U.S.C. §1983. This court has
jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question) and 28
U.S.C. § 1343(3) (civil rights) and (4). This court also has supplemental or pendent
jurisdiction pursuant to 28 u.s.c.s. § 1367 to hear and adjudicate the state claims that
will be set forth in this complaint. Defendants have violated 42 U.S.C. Sections 1983
and 1985(2), as well as 18 U.S.C. Sections 241, 242, 1961-68, 1512, 1513, 1343, 1957.
2. BARNES' deprivation of liberty, familial relationships, property, personal
effects, and reputation were legally cognizable results and reasonably foreseeable
consequences of and from the numerous and compounding violations of her right to be
left alone' and other constitutional violations set forth herein, which were clearly
established rights in 2010, and at all relevant times prior and subsequent thereto. All of
the constitutional rights that were violated by defendants were clearly established and
well-recognized at the time of each of the violations. Since all defendants (except the
media participants) are employees, agents, representatives, or attorneys of the
government, they enjoy qualified inmmnity for their actions and misconduct. Qualified
immunity protects a public official from liability for conduct that "does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982). The conduct of defendants does not fall within the protective parameters of
qualified immunity. Further the custom, policy, practice, and habit of the TRAVIS
1
"(The right to privacy is a person's) right to be left alone by the government.., the right most valued by
civilized men." - Former Supreme Court Justice Louis Brandeis
3
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 4 of 57
COUNTY Sheriffs Department (TCSD) of TRAVIS COUNTY, Texas, and the
WILLIAMSON COUNTY Sheriffs Department (WCSD) of WILLIAMSON COUNTY,
Texas amounted to a deliberate indifference and conscious disregard towards the rights,
safety, and welfare of the citizens, and that deliberate indifference and conscious
disregard were the moving forces behind the constitutional violations and the conspiracy
to violate the constitutional rights of BARNES and her children. The conspiracy is
continuing and on-going and the harm, injury, and damage continue to compound and
FIItIDI
JUDICIAL NOTICE
1. BARNES requests that this court take judicial notice of the entire contents
of the court's file in Cause No. l0-663-K368 pending in WILLIAMSON COUNTY
District Court, including the probable cause affidavit filed by BARNES and the motion
for a full Franks hearing and the Memorandum to the file making the Tex. Const. Art. I,
§ 10 election to appear as counsel and with co-counsel, and the entire contents of the
Arnold Garza case in Cause No. 09-08516-1 in Williamson County Court No. 1 and in
Case No. 03-10-00307-CR in the Third Court of Appeals, which are all incorporated
herein by reference the same as if set forth at length.
2. BARNES requests that this court take judicial notice of the entire contents
of the court's file in Case number 03-12-00073-CV and Case number 03-1 1-00647-CR
filed in the Third Court of Appeals; and Cause No. WR-75,685-02 filed in the Texas
Court of Criminal Appeals, which are incorporated herein by reference the same as if set
forth at length.
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 5 of 57
3. BARNES requests that this court take judicial notice of the entire contents
of the court's file in USDC No. 1:11 -CV-4 1 4-LY and USDC No. Cause No. A-li-CR-
237-LY filed in this court and Case number 11-50764 filed in the Fifth Circuit, which are
incorporated herein by reference the same as if set forth at length.
4. BARNES requests that this court take judicial notice of the entire contents
of the court's file in Cause No. 99-360-C368---(CARNES recused himself and brought in
"visiting judge" Don Humble to throw the casethe WCSD, WCSD sheriff, and RYE
were involved), filed in Williamson County District Court, and Case No. 01-00159-CV
filed in the Third Court of Appeals, which are incorporated herein by reference the same
as if set forth at length.
5. BARNES requests that this court take judicial notice of the entire contents
of the court's file in USDC No. A-0i-CV-547-H filed in this court and Case No. 02-
50937 in the U.S. Court of Appeals for the Fifth Circuit, which is incorporated herein by
reference the same as if set forth at length.
III. PARTIES
1. Plaintiff, Carolyn Barnes, (hereinafter referred to individually as
"BARNES") is a resident of WILLIAMSON COUNTY, Texas and is sui juris,
individually and on behalf of her children collectively referred to herein as Plaintiffs.
2. Defendant, DENNIS G. TUML1NSON (hereinafter referred to as
"TUMLINSON") is a resident of TRAVIS COUNTY, Texas and can be served with
citation and copy of this original petition at his place of employment with the TRAVIS
COUNTY Sheriff's Department, assigned to "security" at the Heman Marion Sweatt
TRAVIS COUNTY Courthouse, 1000 Guadalupe, Austin, TX 78701. Each of the acts
5
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 6 of 57
complained of herein arise from the conduct of Defendant while acting under color of
state law, and was committed within the scope of his employment and authority with the
TRAVIS COUNTY Sheriff's Department, TRAVIS COUNTY, Texas. TUML1NSON is
being sued in his personal and official capacity.
3. Defendant, GREG HAMILTON, (hereinafter referred to as
"HAMILTON") is a resident of TRAVIS COUNTY, Texas, is the Sheriff of TRAVIS
COUNTY, and may be served with citation in this cause by serving him at his place of
employment with the TRAVIS COUNTY Sheriff's Office at the Ruiz Building, 5555
Airport Blvd., Austin, TX 78751. Each of the acts complained of herein arise from the
conduct of Defendant while acting under color of state law, and was committed within
the scope of his employment and authority with the TRAVIS COUNTY Sheriff's
Department, TRAVIS COUNTY, Texas. HAMILTON is being sued in his official
capacity.
4. Defendant, TRAVIS COUNTY SHERIFF'S DEPARTMENT (hereinafter
referred to as "TCSD") operates in TRAVIS COUNTY, Texas, and may be served with
citation in this cause by serving the Sheriff, GREG HAMILTON, at the address noted
above.
5. Defendant, BILL SWAIM (hereinafter referred to as "SWAIM") is a
resident of TRAVIS COUNTY, Texas and may be served with citation in this cause by
serving him at his place of employment at the TRAVIS COUNTY Attorney's Office, 314
11th St W, Austin, TX 78701. Each of the acts complained of herein arise from the
conduct of Defendant while acting under color of state law, and was committed within
the scope of his employment and authority with the TRAVIS COUNTY Attorney's
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 7 of 57
Office, TRAVIS COUNTY, Texas. SWAIM is being sued in his personal and official
capacity.
6. Defendant, DAVID ESCAMILLA (hereinafter referred to as
"ESCAMILLA") is the TRAVIS COUNTY Attorney, who resides in TRAVIS
COUNTY, and who may be served with citation in this cause by serving him at his place
of employment at the TRAVIS COUNTY Attorney's Office, 314 11th St W, Austin, TX
78701. Each of the acts complained of herein arise from the conduct of Defendant while
acting under color of state law, and was committed within the scope of his employment
and authority with the TRAVIS COUNTY Attorney's Office, TRAVIS COUNTY,
Texas. ESCAMILLA is being sued in his personal and official capacity.
7. Defendant, IRMA GUERRERO (hereinafter referred to as
"GUERRERO") is a resident of TRAVIS COUNTY, Texas and may be served with
citation in this cause by serving her at her place of employment at the TRAVIS
COUNTY Probation Office, Blackwell-Thurman Criminal Justice Center, 509 W. 11th
St., Room 2.900, Austin, TX 78701. Each of the acts complained of herein arise from the
conduct of Defendant while acting under color of state law, and was committed within
the scope of her employment and authority with the TRAVIS COUNTY Probation
Department, Pretrial Services, TRAVIS COUNTY. GUERRERO is being sued in her
personal and official capacity.
8. Defendant, ALLISON SAENZ (hereinafter referred to as "SAENZ") is a
resident of TRAVIS COUNTY, Texas and may be served at her place of employment at
the TRAVIS COUNTY Probation Office, Blackwell-Thurman Criminal Justice Center,
509 W. 11th St., Room 2.900, Austin, TX 78701. Each of the acts complained of herein
7
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 8 of 57
arise from the conduct of Defendant while acting under color of state law, and was
committed within the scope of her employment and authority with the TRAVIS
COUNTY Probation Department, Pretrial Services, TRAVIS COUNTY, Texas. SAENZ
is being sued in her personal and official capacity.
9. Defendant, RON MORGAN, (hereinafter referred to as "MORGAN") is a
resident of TRAVIS COUNTY, Texas and may be served at his place of employment at
the TRAVIS COUNTY Probation Office, Blackwell-Thurman Criminal Justice Center,
509 W. 11th St., Room 2.900, Austin, TX 78701. Each of the acts complained of herein
arise from the conduct of Defendant while acting under color of state law, and was
committed within the scope of his employment and authority with the TRAVIS
COUNTY Probation Department, Pretrial Services, TRAVIS COUNTY, Texas.
MORGAN is being sued in his personal and official capacity.
10. Defendant, unknown first name COTTON, (hereinafter referred to as
"COTTON") is a resident of TRAVIS COUNTY, Texas, and may be served at her place
of employment in the TRAVIS COUNTY Jail, 509 W. Austin, TX 78701. Each of
the acts complained of herein arise from the conduct of Defendant while acting under
color of state law, and was committed within the scope of her employment and authority
with the TRAVIS COUNTY Jail, TRAVIS COUNTY, Texas. COTTON is being sued in
her personal and official capacity.
11. Defendant, DEBORAH KLEKAR, (hereinafter referred to as
"KLEKAR") is a resident of TRAVIS COUNTY, Texas, and may be served at her place
of employment in the TRAVIS COUNTY Jail, 509 W. Austin, TX 78701. Each of
the acts complained of herein arise from the conduct of Defendant while acting under
8
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 9 of 57
color of state law, and was committed within the scope of her employment and authority
with the TRAVIS COUNTY Jail, TRAVIS COUNTY, Texas. KLEKAR is being sued in
her personal and official capacity.
12. Defendant, ROBERT LERMA, (hereinafter referred to as "LERMA") is a
resident of TRAVIS COUNTY, Texas, and may be served at his place of employment in
the TRAVIS COUNTY Jail, 509 W. 11th, Austin, TX 78701. Each of the acts
complained of herein arise from the conduct of Defendant while acting under color of
state law, and was committed within the scope of his employment and authority with the
TRAVIS COUNTY Jail, TRAVIS COUNTY, Texas. LERMA is being sued in his
personal and official capacity.
13. Defendant, three unidentified female deputies employed in the TCJ,
(hereinafter referred to as "UNIDENTIFIED THREE") are residents of TRAVIS
COUNTY, Texas, and may be served at their place of employment in the TRAVIS
COUNTY Jail, 509 W. ll, Austin, TX 78701. Each of the acts complained of herein
arise from the conduct of Defendant while acting under color of state law, and was
committed within the scope of their employment and authority with the TRAVIS
COUNTY Jail, TRAVIS COUNTY, Texas. UNIDENTIFIED THREE are being sued in
their personal and official capacity.
14. Defendant, TRAVIS COUNTY, TE)(AS may be served with citation in
this cause by serving the County Judge, Samuel T. Biscoe, at his place of employment,
314 W. 11th St., #520, Austin, TX 78701.
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 10 of 57
15. Defendant, AUSTIN AMERICAN STATESMAN, (hereinafter referred to
as "STATESMAN"), may be served with citation in this cause by serving its registered
agent at 305 S. Congress Ave., Austin, Texas 78704.
16. Defendant, ONE TFIAT KNOWS, is a competitor of Plaintiff and may be
served with citation in this cause when he is identified by the AUSTIN AMERICAN
STATESMAN.
17. Defendant, ANOTHER THAT KNOWS, is a competitor of Plaintiff and
may be served with citation in this cause when he is identified by the AUSTIN
AMERICAN STATESMAN.
18. Defendant, LIBERALS R. CLUELESS, is a competitor of Plaintiff and
may be served with citation in this cause when he is identified by the AUSTIN
AMERICAN STATESMAN.
19. Defendant, NATIVESON, is a competitor of Plaintiff and may be served
with citation in this cause when he is identified by the AUSTIN AMERICAN
STATESMAN.
20. Defendant, I{URST, is a competitor of Plaintiff and may be served with
citation in this cause when he is identified by the AUSTIN AMERICAN STATESMAN.
21. Defendant, ANONYMOUS, has not been identified and will be served
with citation when the identity and address is discovered.
22. Defendant, AUSTIN LEGAL BLOG, is an online blog sponsored by the
AUSTIN AMERICAN STATESMAN, and may be served with citation in this cause at
the above address for the Austin American Statesman.
10
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 11 of 57
23. Defendant, ZACH RYALL, (hereinafter referred to as "RYALL"), is an
employee of the AUSTIN LEGAL BLOG, AUSTIN AMERICAN STATESMAN, and
may be served with citation in this cause at his place of employment at the AUSTIN
AMERICAN STATESMAN.
24. Defendant, ERIN CARGILE, (hereinafter referred to as "CARGILE"), is a
resident of TRAVIS COUNTY and a reporter for KXAN Austin News, and may be
served with citation in this cause at her place of employment at KXAN Austin News, 908
W Martin Luther King Jr. Blvd., Austin, Texas 78701.
25. Defendant, KXAN Austin News, may be served with citation in this cause
by serving the station manager, Eric Lassberg, president and general manager of KXAN,
or registered agent at its place of business at 908 W Martin Luther King Jr. Blvd., Austin,
Texas 78701.
26. Defendant, NOELLE NEWTON, (hereinafter referred to as "NEWTON"),
is a resident of TRAVIS COUNTY and a reporter for KVUE-TV, and may be served
with citation in this cause at her place of employment at KVUE-TV, 3201 Steck Avenue,
Austin, Texas 78757.
27. Defendant, JIM BERGAMO, (hereinafter referred to as "BERGAMO"), is
a resident of TRAVIS COUNTY and a reporter for KVUE-TV, and may be served with
citation in this cause at his place of employment at KVUE-TV, 3201 Steck Avenue,
Austin, Texas 78757.
28. Defendant, KVUE-TV, is a news station in TRAVIS COUNTY, Texas,
who may be served with citation in this cause by serving the station manager or
registered agent at its place of business at 3201 Steck Avenue, Austin, Texas 78757.
11
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 12 of 57
29. Defendant, KEYE, is a news station in TRAVIS COUNTY, Texas, who
may be served with citation in this cause by serving the station manager or registered
agent at its place of business at 10700 Metric Blvd., Austin, TX 78758.
30. Defendant, JAMES WILSON, (hereinafter referred to as "WILSON") is a
resident of WILLIAMSON COUNTY, Texas, is the Sheriff of WILLIAMSON
COUNTY, and may be served with citation in this cause by serving him at his place of
employment with the WILLIAMSON COUNTY Sheriff's Office at 508 Rock Street,
Georgetown, Texas 78626. Each of the acts complained of herein arise from the conduct
of Defendant while acting under color of state law, and was committed within the scope
of his employment and authority with the WILLIAMSON COUNTY Sheriffs
Department, WILLIAMSON COUNTY, Texas. WILSON is being sued in his personal
and official capacity.
31. Defendant, WILLIAMSON COUNTY SHERIFF'S DEPARTMENT
(hereinafter referred to as "WCSD") operates in WILLIAMSON COUNTY, Texas, and
may be served with citation in this cause by serving the Sheriff, JAMES WILSON, at 508
Rock Street, Georgetown, Texas 78626.
32. Defendant, KATHLEEN GITTEL, (hereinafter referred to as "GITTEL"),
is a resident of WILLIAMSON COUNTY, Texas, and may be served with citation in this
cause by serving her at Liberty Hill, Texas 78642.
33. Defendant, HAROLD POPPA, (hereinafter referred to as "POPPA"), is a
resident of Burnet County, Texas, and may be served with citation in this cause by
serving him at 642 Balcones Ridgeway, Bertram, Texas 78605-4075.
12
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 13 of 57
34. Defendant, MICHAEL SCHEFFLER, (hereinafter referred to as
"SCHEFFLER"), is a resident of WILLIAMSON COUNTY, Texas, and may be served
with citation in this cause by serving him at his place of employment with Texas
Department of Public Safety at 5805 North Lamar Boulevard or 6121 North Lamar
Boulevard, Austin, Texas (512) 424-2076; (512) 424-2000. Each of the acts complained
of herein arise from the conduct of Defendant while acting under color of state law, and
was committed within the scope of his employment and authority with the Texas
Department of Public Safety. SCHEFFLER is being sued in his personal and official
capacity.
35. Defendant, D. HERNANDEZ, (hereinafter referred to as
"HERNANDEZ"), is a resident of WILLIAMSON COUNTY and a deputy for the
WCSD, who may be served with citation in this cause at her place of employment at the
WCSD at 508 Rock Street, Georgetown, Texas 78626. Each of the acts complained of
herein arise from the conduct of Defendant while acting under color of state law, and was
committed within the scope of his employment and authority with the WILLIAMSON
COUNTY Sheriff's Department of WILLIAMSON COUNTY, Texas. HERNANDEZ is
being sued in her personal and official capacity.
36. Defendant, NICK RICHTER, (hereinafter referred to as "RICHTER"), is a
resident of WILLIAMSON COUNTY and a deputy for the WCSD, who may be served
with citation in this cause at his place of employment at the WCSD at 508 Rock Street,
Georgetown, Texas 78626. Each of the acts complained of herein arise from the conduct
of Defendant while acting under color of state law, and was committed within the scope
of his employment and authority with the WILLIAMSON COUNTY Sheriffs
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Department of WILLIAMSON COUNTY, Texas. RICHTER is being sued in his
personal and official capacity.
37. Defendant, RUSSELL TRAVIS, (hereinafter referred to as "TRAVIS"), is
a resident of WILLIAMSON COUNTY and a deputy for the WCSD, who may be served
with citation in this cause at his place of employment at the WCSD at 508 Rock Street,
Georgetown, Texas 78626. Each of the acts complained of herein arise from the conduct
of Defendant while acting under color of state law, and was committed within the scope
of his employment and authority with the WILLIAMSON COUNTY Sheriff's
Department of WILLIAMSON COUNTY, Texas. TRAVIS is being sued in his personal
and official capacity.
38. Defendant, PAUL BOGAN, (hereinafter referred to as "BOGAN"), is a
resident of WILLIAMSON COUNTY and a deputy for the WCSD, who may be served
with citation in this cause at his place of employment at the WCSD at 508 Rock Street,
Georgetown, Texas 78626. Each of the acts complained of herein arise from the conduct
of Defendant while acting under color of state law, and was committed within the scope
of his employment and authority with the WILLIAMSON COUNTY Sheriff's
Department of WILLIAMSON COUNTY, Texas. BOGAN is being sued in his personal
and official capacity.
39. Defendant, ROBERT NEWELL, (hereinafter referred to as "NEWELL"),
is a resident of WILLIAMSON COUNTY and a deputy for the WCSD, who may be
served with citation in this cause at his place of employment at the WCSD at 508 Rock
Street, Georgetown, Texas 78626. Each of the acts complained of herein arise from the
conduct of Defendant while acting under color of state law, and was committed within
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the scope of his employment and authority with the WILLIAMSON COUNTY Sheriffs
Department of WILLIAMSON COUNTY, Texas. NEWELL is being sued in his
personal and official capacity.
40. Defendant, PETE HUGHEY, (hereinafter referred to as "HUGHEY"), is a
resident of WILLIAMSON COUNTY and a deputy for the WCSD, who may be served
with citation in this cause at his place of employment at the WCSD at 508 Rock Street,
Georgetown, Texas 78626. Each of the acts complained of herein arise from the conduct
of Defendant while acting under color of state law, and was committed within the scope
of his employment and authority with the WILLIAMSON COUNTY Sheriffs
Department of WILLIAMSON COUNTY, Texas. HUGHEY is being sued in his
personal and official capacity.
41. Defendant, DOUG WAGGONER, (hereinafter referred to as
"WAGGONER"), is a resident of WILLIAMSON COUNTY and a deputy for the
WCSD, who may be served with citation in this cause at his place of employment at the
WCSD at 508 Rock Street, Georgetown, Texas 78626. Each of the acts complained of
herein arise from the conduct of Defendant while acting under color of state law, and was
committed within the scope of his employment and authority with the WILLIAMSON
COUNTY Sheriffs Department of WILLIAMSON COUNTY, Texas. WAGGONER is
being sued in his personal and official capacity.
42. Defendant, BELINDA BARTZ, (hereinafter referred to as "BARTZ"), is a
resident of WILLIAMSON COUNTY and a deputy for the WCSD, who may be served
with citation in this cause at her place of employment at the WCSD at 508 Rock Street,
Georgetown, Texas 78626. Each of the acts complained of herein arise from the conduct
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of Defendant while acting under color of state law, and was committed within the scope
of his employment and authority with the WILLIAMSON COUNTY Sheriff's
Department of WILLIAMSON COUNTY, Texas. BARTZ is being sued in her personal
and official capacity.
43. Defendant, JEREME BRINKMANN, (hereinafter referred to as
"BRINKMAINN"), is a resident of WILLIAMSON COUNTY and a deputy for the
WCSD, who may be served with citation in this cause at his place of employment at the
WCSD at 508 Rock Street, Georgetown, Texas 78626. Each of the acts complained of
herein arise from the conduct of Defendant while acting under color of state law, and was
committed within the scope of his employment and authority with the WILLIAMSON
COUNTY Sheriff's Department of WILLIAMSON COUNTY, Texas. BRINKMANN is
being sued in his personal and official capacity.
44. Defendant, RICHARD DE LA VEGA, (hereinafter referred to as "DE LA
VEGA"), is a resident of WILLIAMSON COUNTY and a deputy for the WCSD, who
may be served with citation in this cause at his place of employment at the WCSD at 508
Rock Street, Georgetown, Texas 78626. Each of the acts complained of herein arise from
the conduct of Defendant while acting under color of state law, and was committed
within the scope of his employment and authority with the WILLIAMSON COUNTY
Sheriff's Department of WILLIAMSON COUNTY, Texas. DE LA VEGA is being sued
in his personal and official capacity.
45. Defendant, JOHN FOSTER, (hereinafter referred to as "FOSTER"), is a
resident of WILLIAMSON COUNTY and a deputy for the WCSD, who may be served
with citation in this cause at his place of employment at the WCSD at 508 Rock Street,
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Georgetown, Texas 78626. Each of the acts complained of herein arise from the conduct
of Defendant while acting under color of state law, and was committed within the scope
of his employment and authority with the WILLIAMSON COUNTY Sheriff's
Department of WILLIAMSON COUNTY, Texas. FOSTER is being sued in his personal
and official capacity.
46. Defendant, DALE RYE, (hereinafter referred to as "RYE"), is a resident
of WILLIAMSON COUNTY and a prosecutor for WILLIAMSON COUNTY, Texas,
who may be served with citation in this cause at his place of employment at 405 M.L.K.,
Suite 240, Georgetown, Texas 78626. Each of the acts complained of herein arise from
the conduct of Defendant while acting under color of state law, and was committed
within the scope of his employment and authority with the WILLIAMSON COUNTY
Attorney's Office of WILLIAMSON COUNTY, Texas. RYE is being sued in his
personal and official capacity.
47. Defendant, DEE HOBBS, (hereinafter referred to as "HOBBS"), is a
resident of WILLIAMSON COUNTY and a prosecutor for WILLIAMSON COUNTY,
Texas, who may be served with citation in this cause at his place of employment at the
WILLIAMSON COUNTY Attorney's Office at 405 M.L.K., Suite 240, Georgetown,
Texas 78626. Each of the acts complained of herein arise from the conduct of Defendant
while acting under color of state law, and was committed within the scope of his
employment and authority with the WILLIAMSON COUNTY Attorney's Office of
WILLIAMSON COUNTY, Texas. HOBBS is being sued in his personal and official
capacity.
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48. Defendant, SUZANNE BROOKS, (hereinafter referred to as
"BROOKS"), is a resident of WILLIAMSON COUNTY and a county court at law judge
for WILLIAMSON COUNTY, Texas, who may be served with citation in this cause at
her place of employment at the WILLIAMSON COUNTY Courthouse, County Court at
Law No. 2, 405 MLK, Georgetown, Texas 78626. Each of the acts complained of herein
arise from the conduct of Defendant while acting under color of state law, and was
committed within the scope of her employment and authority with WILLIAMSON
COUNTY, Texas. BROOKS is being sued in her personal and official capacity.
49. Defendant, JOHN BRADLEY, (hereinafter referred to as "BRADLEY"),
is a resident of WILLIAMSON COUNTY and a prosecutor for WILLIAMSON
COUNTY, Texas, who may be served with citation in this cause at his place of
employment at the WILLIAMSON COUNTY District Attorney's Office at 405 M.L.K.
Street, Suite 265, Georgetown, TX 78626. Each of the acts complained of herein arise
from the conduct of Defendant while acting under color of state law, and was committed
within the scope of his employment and authority with WILLIAMSON COUNTY,
Texas. BRADLEY is being sued in his personal and official capacity.
50. Defendant, TRAVIS MCDONALD, (hereinafter referred to as
"MCDONALD"), is a resident of WiLLIAMSON COUNTY and a prosecutor for
WILLIAMSON COUNTY, Texas, who may be served with citation in this cause at his
place of employment at the WILLIAMSON COUNTY District Attorney's Office at 405
M.L.K. Street, Suite 265, Georgetown, TX 78626. Each of the acts complained of herein
arise from the conduct of Defendant while acting under color of state law, and was
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committed within the scope of his employment and authority with WILLIAMSON
COUNTY, Texas. MCDONALD is being sued in his personal and official capacity.
51. Defendant, ROBERT MCCABE, (hereinafter referred to as "MCCABE"),
is a resident of WILLIAMSON COUNTY and a prosecutor for WILLIAMSON
COUNTY, Texas, who may be served with citation in this cause at his place of
employment at the WILLIAMSON COUNTY District Attorney's Office at 405 M.L.K.
Street, Suite 265, Georgetown, TX 78626. Each of the acts complained of herein arise
from the conduct of Defendant while acting under color of state law, and was committed
within the scope of his employment and authority with WILLIAMSON COUNTY,
Texas. MCCABE is being sued in his personal and official capacity.
52. Defendant, ALAN SCHREIBER, (hereinafter referred to as
"SCHREIBER"), is a resident of WILLIAMSON COUNTY and a court appointed
lawyer for WILLIAMSON COUNTY, Texas, who may be served with citation in this
cause at his place of employment at 1708 Blue Heron Cove, Round Rock TX 78681.
53. Defendant, KEN ANDERSON, (hereinafter referred to as
"ANDERSON"), is a resident of WILLIAMSON COUNTY and a former district
attorney, magistrate, and district judge for WILLIAMSON COUNTY, Texas, who may
be served with citation in this cause at his place of employment at WILLIAMSON
COUNTY Courthouse, 277th Judicial District Court, 405 MLK, Georgetown, Texas
78626. Each of the acts complained of herein arise from the conduct of Defendant while
acting under color of state law, and was committed within the scope of his employment
and authority with WILLIAMSON COUNTY, Texas. ANDERSON is being sued in his
personal and official capacity.
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54. Defendant, BURT CARNES, (hereinafter referred to as "CARNES"), is a
resident of WILLIAMSON COUNTY and a district judge for WILLIAMSON
COUNTY, Texas, who may be served with citation in this cause at his place of
employment at WILLIAMSON COUNTY Courthouse, 368th Judicial District Court, 405
MLK, Georgetown, Texas 78626. Each of the acts complained of herein arise from the
conduct of Defendant while acting under color of state law, and was committed within
the scope of his employment and authority with WILLIAMSON COUNTY, Texas.
CARNES is being sued in his personal and official capacity.
55. Defendant, LLOYD DOUG SHAVER, (hereinafter referred to as
"SHAVER"), P.O. Box 8693, Horseshoe Bay, TX 78657, Office: 830-598-8242, or
through the WILLIAMSON COUNTY Courthouse, 368th Judicial District Court at 405
MLK, Georgetown, Texas 78626, where he is serving as a visiting judge. SHAVER is
being sued in his personal and official capacity.
56. Defendant, MARTY GRIFFITH, (hereinafter referred to as "GRIFFITH"),
is a resident of WILLIAMSON COUNTY and a probation officer for WILLIAMSON
COUNTY, Texas, who may be served with citation in this cause at his place of
employment at WILLIAMSON COUNTY Adult Probation - Main Office, 301 Timer
Loop Road, Georgetown, TX 78626. Each of the acts complained of herein arise from
the conduct of Defendant while acting under color of state law, and was committed
within the scope of his employment and authority with WILLIAMSON COUNTY,
Texas. GRIFFITH is being sued in his personal and official capacity.
57. Defendant, WILLIAMSON COUNTY, TEXAS, may be served with
citation in this cause by serving the County Judge, Dan A. Gattis, at his place of
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employment at WILLIAMSON COUNTY Courthouse at 710 5. Main Street, Ste. 101,
Georgetown, TX 78626, Phone: (512) 943-1550.
58. Defendant, JOHN CLIFTON, (hereinafter referred to as "CLIFTON"), is a
resident of TRAVIS COUNTY and an investigator for the federal marshals or federal
courthouse security, and may be served with citation in this cause at his place of
employment at the U.S. District Courthouse, 200 West 8th Street Austin, TX 78701.
Each of the acts complained of herein arise from the conduct of Defendant while acting
under color of state law, and was committed within the scope of his employment and
authority with the federal government. CLIFTON is being sued in his personal and
official capacity.
59. Defendant, DUSTY HUMES, (hereinafter referred to as "HIJMES"), is a
resident of TRAVIS COUNTY and a clinical psychologist, who may be served with
citation at her place of business at 901 5. Mo-Pac, Ste. 1-480, Austin, Texas 78746 or at
2201 San Pedro NE, Building 4, Ste. 102, Albuquerque, New Mexico 87110. See
www.dustyhumesphd.net
60. Defendant, DAVID RUPPART, (hereinafter referred to as "RUPPART"),
is a resident of WILLIAMSON COUNTY and a deputy for the WCSD, who may be
served with citation in this cause at his place of employment at the WCSD at 508 Rock
Street, Georgetown, Texas 78626. Each of the acts complained of herein arise from the
conduct of Defendant while acting under color of state law, and was committed within
the scope of his employment and authority with the WILLIAMSON COUNTY Sheriff's
Department of WILLIAMSON COUNTY, Texas. RUPPART is being sued in his
personal and official capacity.
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IV. ALLEGATION OF BASIC FACTS AND
EVENTS FORMING THE BASIS OF THE CLAIMS
1. Whenever, in this complaint it is alleged that any Defendant did any act,
thing, and/or omission, it is meant that Defendant and/or Defendant's co-conspirators,
agents, servants, employees, attorneys, or representatives did such act, thing and/or
omission and that at the time it was done with full authorization and/or ratification by
said Defendant.
2. On January 8, 2010, BARNES was physically assaulted from behind by
TUMLINSON as she was leaving the Heman Marion Sweatt TRAVIS COUNTY
Courthouse simply because she was calling to report his abusive behavior.
3. TUML1NSON jumped up and ran at BARNES and knocked her cell
phone out of her right hand as she attempted to place a call when she was leaving the
courthouse. BARNES had a legal right to make a telephone call from her cell phone as
she was exiting the building.
4. TUMLINSON was wearing a heavy, square, metal plate or vest under his
shirt and he forcefully rammed BARNES into the exit ropes after he forcefully slapped
her cell phone from her hand, causing it to crash to the floor. This brutal assault caused
the destruction and loss of the Blackberry cell phone and the loss of BARNES' diamond
bracelet.
5. After violently knocking the phone out of her hand and ramming her into
the exit ropes, TUMLINSON forcefully grabbed BARNES' right wrist and pulled her
right arm and twisted it up behind her back and violently rammed her into the brick wall
and announced loudly that she was under arrest. When BARNES responded that there
was nothing illegal about making a cell phone call, TUML1NSON stated that BARNES
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had hit him when it was only TUMLINSON doing the hitting and engaging in aggressive,
violent, and retaliatory behavior.2
6. The unwarranted and brutal assault occurred in a public building during
business hours. BARNES was not engaging in any illegal activity or criminally
trespassing as this was public property, and BARNES was there conducting business with
the court and engaging in her profession as an officer of the court. This was not the first
time that TUML1NSON had behaved inappropriately and obnoxiously towards an officer
of the court.3
7. TUML1NSON was not lawfully discharging any official duty under the
law. TUMLINSON enjoys no immunity, qualified or otherwise, for his malicious and
unconstitutional actions because no reasonable law enforcement officer would have
reasonably believed that his actions were lawful, legal, and constitutional.
8. BARNES told TUMLINSON very clearly that he would have to commit
aggravated perjury if he persisted with his false allegations, but TUMLINSON proceeded
nevertheless with a conscious disregard and deliberate indifference towards the rights,
safety, and welfare of Plaintiffs. TUMLINSON acted with utmost confidence in his
criminal behavior because he knew he would get away with it because his fellow
employees and the TRAVIS COUNTY attorneys, agents, elected officials, and
representatives would cover-up his illegal and unconstitutional activity as it is in their
mutual best interests to do so, including but not limited to, KLEKAR, COTTON,
2
TTJMLINSON had a known history of being abusive and obnoxious to others; but there was a complete
failure to properly discipline, train, and supervise him. He should never have been placed in a position to
be in contact with the public, untrained and unsupervised.
The prior January 2009, TUMLINSON had intentionally knocked another lawyer's personal property and
papers to the ground after engaging in a rude altercation. A complaint was filed against TUMLThTSON,
however, the TCSD and TRAVIS COUNTY failed to take any corrective or remedial action, such as
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LERMA, UNIDENTIFIED THREE, HAMILTON, SWAIM, ESCAMILLA, MORGAN,
GUERRERO, and SAENZ.
9. TUMLINSON, HAMILTON, and KLEKAR also received encouragement
and false defamatory per se information from WCSD and WILLIAMSON COUNTY
when they were contacted immediately after the false arrest of BARNES, due to the
malicious flags they have kept on BARNES' driver's license for the past decade.
10. TRAVIS COUNTY, TCSD, TRAVIS COUNTY ATTORNEY'S
OFFICE, HAMILTON, KLEKAR, ESCAMILLA, SWAIM, and others were negligent
and grossly negligent in placing TUMLINSON in a position to interact with the public
based upon his known propensities to engage in bullying, inappropriate behavior, and
violence. These Defendants were negligent and grossly negligent in hiring, retaining, and
failing to supervise, train, and discipline TUMLINSON when he exhibited all these anti-
social propensities from the inception of his employment.4 Had these Defendants taken
appropriate action even as late as the year prior to this latest assault when they received a
complaint from another lawyer about TUMLINSON's bad behavior in this position
interacting with the public, BARNES would not have been assaulted and sustained such
irreparable injury, harm, and damage.
11. After the brutal assault and false arrest, BARNES was initially taken to a
small room in the Jail where TUML1NSON grabbed her purse and started going through
it without her consent and confiscated her driver's license. TUMLINSON went to a
training or classes, or supervision, or appropriate disciplinary action. Had corrective or remedial action
been taken, perhaps the assault on BARNES would not have occurred in January 2010.
the end of his probationary period, the recommendation was NOT to hire, however, TUMLINSON was
able to convince his supervisor/evaluator that it was their fault for failing to properly train him. So, he was
hired in spite of the clear propensities he was already exhibiting. Also, he listed his prior employment with
Hays County and Gonzalez County; however, BARNES' freedom of information and open records requests
yielded no history of these entities ever employing him.
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computer and put in BARNES information from her driver's license and then said, "Well,
it looks like we need to call WILLIAMSON COUNTY; she may have some warrants out
for her arrest there." TUMLINSON and his superiors called WCSD and other employees
of WILLIAMSON COUNTY prior to drafting his probable cause affidavit. KLEKAR
came into the room and BARNES told her that someone needed to pull the video at the
courthouse immediately and see the truthBARNES had not assaulted TUML1NSON
and the video recording would prove that TUML1NSON ran at BARNES from behind
and assaulted her repeatedly. KLEKAR stated that she was a supervisor and assured
BARNES that she would immediately secure the videotape to ascertain the truth.
12. BARNES was subjected to a violent loss of rights, property, and
reputation as she was subjected to a false arrest, aggravated kidnapping, and further
aggravated sexual assault by the UNIDENTIED THREE while in custody. These
Defendants, TUML1NSON, HAMILTON, KLEKAR, and TCSD intentionally and
maliciously published a fabricated lie and committed aggravated perjury when they
released the knowingly false press release to the AUSTIN AMERICAN STATESMAN,
knowing that the newspaper would simply publish whatever they were told without a
good faith investigation into the facts or truth, and that it would then be republished on
the AP wire and become national news. These Defendants also knew that the AUSTIN
AMERICAN STATESMAN, through the use of the Internet and AUSTIN LEGAL
BLOG, would invite and allow further and continuing defamation against BARNES by
competitors and co-conspirators and even allow them to hide behind a cloak of secrecy as
they maliciously engaged in false and fraudulent personal attacks on BARNES and her
character, further destroying her right to be free from unreasonable searches and seizures,
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defamation, libel, character assassination, and right to be left alone, and thereby, deprived
her of a right to a fair jury trial before a fair and impartial tribunal, equal protection under
the law, due process, and due course of law. The false probable cause affidavit, false
arrest, and false imprisonment created a media frenzy whereby the media defendants,
STATESMAN, AUSTIN LEGAL BLOG, KXAN, KEYE, and KVUE television stations
published defamatory per se allegations causing further harm and damage to Plaintiffs
ist 4th 5th 6th
and this was a reasonably foreseeable result of the violations of BARNES' 1, , ,
14th
and amendment rights. The STATESMAN, RYALL, and AUSTIN LEGAL BLOG
further allowed ONE THAT KNOWS, ANOTHER THAT KNOWS, LIBERALS R.
CLUELESS, NATIVESON, and HURST to maliciously malign and personally attack
BARNES and further defame her with utmost malice and a specific intent to harm, injure,
and damage BARNES.
13. It has become the habit, practice, custom, policy and procedure of
TRAVIS COUNTY and WILLIAMSON COUNTY law enforcement and prosecutors to
use the media to deprive the accused of their constitutional rights; and they intentionally
draft and redraft probable cause affidavits to justify their arrests knowing that they will
serve as the press release and taint the public against the accused and reinforce the
public's misplaced trust in certain law enforcement employees and prosecutors who
abuse their position of public trust and power to oppress the citizens of this State and
Nation with malicious prosecutions motivated by hate, greed, and political ambition.
14. BARNES sustained bodily injury from the brutal aggravated assault by
TUMLINSON; however, when BARNES was taken to jail, she was deprived of medical
attention and not allowed to make any telephone calls. When BARNES arrived at the jail
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 27 of 57
and asked to speak to TUMLINSON's supervisor, she was told he had no supervisor.
BARNES diligently sought to have the video recording reviewed and have these false
allegations cleared up, so that she could be released. BARNES was scheduled to be in
court for a hearing and they would not even allow her to call and let the Judge know what
had happened.
15. BARNES repeatedly told every deputy present that TUMLINSON had
been the one who assaulted her and that she wanted to file a report and complaint against
him. All deputies absolutely refused to file a report or take any information from her.
BARNES was deprived of equal protection under the law, due process, and due course of
law in connection with the State's refusal to take her complaint, information, and file the
report of the criminal law violations by TUMLINSON. It is the habit, custom, policy
and procedure of the TCSD and WCSD to refuse to take any information or complaint
against one of their employees. A citizen assaulted by a law enforcement officer has no
recourse or remedy, which violates the Texas Open Courts Doctrine.
16. BARNES repeatedly told TUML1NSON, all deputies present, and
KLEKAR, that she had not assaulted TUMLINSON, that it was TUMLINSON who
brutally assaulted her, and that the security video tape would prove who assaulted whom.
TUMLINSON, KLEKAR, and Deputy Hill all assured BARNES that the video tape
would be secured and preserved. Both KLEKAR and Deputy Hill led BARNES to
believe that KLEKAR had actually pulled the video and was reviewing it.
17. BARNES was taken to a filthy closet and thrown inside still in handcuffs.
The deputies started stripping off BARNES jewelry behind her back without even
removing the handcuffs. BARNES' watch was damaged and had to be repaired because
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they were not even trying to be careful, they were just forcefully yanking everything off
Deputy Hill had told BARNES that she would be allowed to make a call. COTTON
came in and started bullying BARNES and stated that BARNES would not be allowed to
make a call to anyone. Requests for medical attention for the injuries sustained during
TUMLINSON's assault were denied. COTTON, KLEKAR, TUMLINSON, and
LERMA refused to clean the open bleeding wounds and just tossed one band-aid at
BARNES. BARNES was left alone in an extremely filthy closet. It was several hours
later when BARNES was allowed to make a call after COTTON had left for the day.
18. After KLEKAR reviewed the video and saw the truth, she came to the jail
and pulled LERMA off to the side and discussed BARNES with him. They discussed
what to do with BARNES due to the obvious false arrest, aggravated assault, aggravated
kidnapping, and other crimes committed by TUMLINSON and his use of excessive force
on an officer of the court. LERMA had previously told BARNES he would talk to her
"in a minute" before KLEKAR pulled him aside. When LERMA finished the discussion
with KLEKAR, he came back to the small window on the door of the filthy closet and
said "Second thought, I don't need to talk to you." Then, in a menacing and snide tone,
he said, "Enjoy the ride." BARNES was then allowed to make a call and then told that
she was being taken to "special housing for people who hit cops." Everyone just kept
pretending that BARNES had actually assaulted TUMLINSON and they were therefore
punishing her for his bad behavior.
19. BARNES was then taken to a back area of the jail where she was held
down and violently stripped completely naked and brutally assaulted by the
UNIDENTIFIED THREE while LERMA watched with another male and laughed. This
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brutal and barbaric behavior was clearly the habit, practice, and custom of these jail
personnel who brutally assault and violently punish and injure arrestees in violation of
the law and the Constitution. This conduct was shocking, outrageous, against public
policy, and not tolerated in a civilized society.
20. BARNES was left in a freezing cold room without pants, blanket, or food.
BARNES was deprived of any and all medical care and had to go directly to the
emergency room when she was finally released.
21. BARNES was held until after midnight even though her lawyer posted her
bond hours earlier. Due to calls made to WCSD, the WCSD flags on her driver's license,
and the fact that TUMLINSON had assaulted BARNES, COTTON and/or LERMA had
placed a "medical hold" on BARNES so that she could not be released even though her
bond had been posted. BARNES was held for 12 hours without being afforded any
medical care for the injuries sustained in the aggravated assault, food or water, or any
other basic necessities.
22. While BARNES was being released, she immediately reported the missing
diamond bracelet and missing money taken from her purse. In response, she was
assaulted again. TUML1NSON had also stepped on BARNES' coat and ripped it in the
back when he yanked it up while still standing on the sleeve. Immediately upon her
release BARNES was barely able to drive to the emergency room, where she spent the
next 8 hours; then another 4 hours in waiting area and car before she was able to drive
home. BARNES had to cancel all her appointments the following week. BARNES
suffered an extreme infection all over her face that took over a year to get rid of as a
direct and proximate result of the filthy jail conditions.
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23. TUML1NSON and his superiors emailed the probable cause affidavit back
and forth until it was defamatory enough to destroy BARNES' credibility, presumption
of innocence, and reputation in the media. TCSD and TRAVIS COUNTY have at all
times failed and refused to produce the different drafts of the probable cause affidavits,
despite numerous requests for same. They clearly wanted to maximize the damage to
BARNES to protect TUMLINSON and cover-up for his assault on an officer of the court
while acting under color of state law. TCSD made the deliberate, intentional, and
knowing decision to help cover-up for TUMLINSON and protect him from the
consequences of his actions because these were his superiors assisting him and editing
and approving his drafts of the probable cause affidavit.
24. Predictably, the AUSTiN AMERICAN STATESMAN, KXAN, KVUE,
and KEYE, not only ran the defamatory per se false accusations contained in the
probable cause affidavit without even attempting to get BARNES' side or talk to
BARNES' attorney, but the AUSTiN AMERICAN STATESMAN also provided a forum
that allowed BARNES' competitors and the co-conspirators to defame and personally
attack BARNES even more on the Internet. This forum is called the AUSTIN LEGAL
BLOG and RYALL is employed by the AUSTIN AMERICAN STATESMAN and was
permitted to make his own rude and derogatory comments on the Internet. The other
lawyers who were allowed to post defamatory per se statements and personal attacks on
BARNES were allowed to hide behind aliases; to-wit: "ONE THAT KNOWS,"
"ANOTHER THAT KNOWS," "LIBERALS R. CLUELESS," "NATIVE SON," and
"HURST," in order to deprive BARNES of a fair trial and the presumption of innocence.
This defamation is permanent and irreversible. The AUSTIN AMERICAN
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STATESMAN has failed and refused to disclose the names of these malicious individuals
despite formal discovery requests for same. BARNES has been deprived of her right to
pursue her claims by this policy of providing a forum for defamation and then protecting
those who defame their competitors. This action violates the Texas Open Courts
Doctrine and Texas Deceptive Trade Practices Consumer Protection Act, Sec. 17.46(8)
"Disparaging the goods, services, or business of another by false or misleading
representation of fact"), because it allows competitors and the coconspirators to disparage
BARNES with impunity, in violation of Texas Constitution, Art. I, § 8.
25. An equally foreseeable consequence of the false and fraudulent probable
cause affidavit was the media sensationalism by CARGILE for KXAN, by NEWTON
and BERGAMO for KVUE, and by reporters at KEYE. These reports repeated the false
allegations made by TUML1NSON andlor his supervisors who edited and approved the
probable cause affidavit, knowing it would serve as a press release and be repeated all
over the mass media on a national level.
26. Another foreseeable consequence, were the numerous blogs making
defamatory comments and statements in response to the false and fraudulent probable
cause affidavit, particularly LAWYERSTIGERSANDBEARS.BLOGSPOT.COM.
27. It was reasonably foreseeable that the false arrest and imprisonment, false
and fraudulent affidavit, media sensationalism, and Internet publication would result in
permanent harm, injury, and damage to BARNES' reputation, credibility, and livelihood;
and would cause serious mental anguish and extreme emotional distress to Plaintiffs. All
of this media frenzy was encouraged and fueled by the defamation per se from
WILLIAMSON COUNTY, WCSD, and various employees, deputies, and prosecutors
31
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employed by WILLIAMSON COUNTY.
28. BARNES diligently attempted to secure a copy of the video recording of
TUMLINSON's violent assault from behind that was captured on the courthouse security
cameras to prove the truth, clear her name, and mitigate damages, to no avail. All of
BARNES' efforts at discovery were blocked, stalled, and thwarted by TCSD and
TRAVIS COUNTY and their prosecutors, including but not limited to SWAIM and
ESCAMILLA. BARNES even sought the assistance of the Texas Attorney General
under the Texas Open Records and Public Information Act, but ESCAMILLA fought
those requests as well.
29. BARNES attempted to visit with the TRAVIS COUNTY prosecutors
concerning the presentation of this incident to the grand jury and attempted to secure a
copy of the video recording or at least view the recording and other pertinent discovery,
to no avail. Calls were not returned and no one would come out and visit with BARNES.
The prosecutors refused to provide any means for BARNES to present her charges
against TUMLINSON to the grand jury. BARNES was told that only the district attorney
could present cases to the grand jury. BARNES went to TRAVIS COUNTY Victim's
Services, but they refused to see her or offer her any assistance because she was "in the
system," so they could not talk to her. There literally is no avenue for citizens assaulted,
harmed, injured, or damaged by a law enforcement officer or employee of TRAVIS
COUNTY or WILLIAMSON COUNTY to gain access to the criminal justice system or
pursue a claim. BARNES even called the Austin Police Department since the assault
took place within the city limits of Austin, Texas; however, she was told that the TCSD
had exclusive jurisdiction over investigations of assaults in the TRAVIS COUNTY
32
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courthouse. Therefore, it is the intentional, deliberate, and knowing policy, practice, and
custom of TCSD and TRAVIS COUNTY to make sure that no person attacked or injured
by a TCSD employee or other TRAVIS COUNTY employee can file a complaint or
"petition the Government for a redress of grievances." (U.S.Const. Amend. 1). This
violates the Texas Bill of Rights, equal protection under the law and due process.
30. BARNES then prepared packets for presentment to the grand jury and sent
those packets to the next four grand juries that were impaneled, to no avail. The TRAVIS
COUNTY employees and prosecutors would intercept the mail that was clearly addressed
to the Foreman of the Grand Jury, and fail to present it to the respective grand juries.
BARNES sent the packets certified mail return receipt requested and properly addressed
to the Foreman of the Grand Jury in care of the District Judge who impaneled the grand
jury. BARNES reported the interception and interference with the mail to the U.S.
Postmaster, who following an investigation, stated that the four packets were delivered to
the TRAVIS COUNTY courthouse and were then diverted by the TRAVIS COUNTY
internal mail room. It costs BARNES great time and expense to prepare and deliver these
packets. The law provides that "any credible person" may present maters to the grand
jury for investigation. However, it is the policy, habit, custom, and practice of TRAVIS
COUNTY and WILLIAMSON COUNTY to block ordinary citizens from having access
to the grand juries and to ensure that only its prosecutors can access and control the grand
jury process. Thus, the grand juries have lost their independence and are nothing more
than puppets of the prosecutors. The system is intentionally designed to provide only one
side to the grand jurythe State's side; thereby depriving the citizens of their right to
grand jury protection from vindictive or malicious prosecutions, due process, redress of
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grievances, and equal protection under the law.
31. BARNES still has not been able to view the videotaped recording from the
courthouse security camera or obtain a copy of it. TRAVIS COUNTY, acting through
TCSD, HAMILTON, KLEKAR, ESCAMILLA, SWAIM, and the TRAVIS COUNTY
Attorney's Office have obstructed and prevented BARNES from timely and meaningful
access to the best evidence of the truth in order to prevent her from proving that
TUML1NSON had assaulted her from behind and that BARNES did not ever hit
TUML1NSON. These Defendants were not concerned about the truth, but were only
concerned with cover-up and escaping any liability or accountability. These Defendants
knew that TUMLINSON had committed an aggravated assault, aggravated kidnapping,
and aggravated perjury; but they not only covered-up for him, they continued to place
him in the same position to interact with the public with absolutely no supervision
whatsoever.
32. While covering up for TUML1NSON, TRAVIS COUNTY and its
prosecutors, SWAIM and ESCAMILLA, also obstructed justice. Employees and
attorneys for TRAVIS COUNTY, Texas, including SWAIM, and ESCAMILLA have at
all times blocked, obstructed, hindered, and prevented BARNES from obtaining
exculpatory evidence and a fair and speedy trial; as well as from filing any complaint
against TUMLINSON or any of the other deputies who brutally assaulted, stripped, and
violated her rights while in custody, and who subjected her to repeated false arrests and
false imprisonments in retaliation against her for attempting to pursue her complaints and
secure justice.5
Just in Travis County alone, BARNES was subjected to three false arrests and false imprisonments within
a 6 month time frame, arising out of the same TUMILINSON incident. These were all as a result of the
34
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33. Thus, the violent offender is protected and the real victim is retaliated
against in violation of equal protection, due process, due course of law and other valuable
rights secured by the 1st 4th 5th 6th 8th 9th
and 14th amendments to the United States
Constitution and by Texas Constitution, Art. I, Sections 3, 3a, 8, 9, 10, 11, 13, 16, 17, 19,
27, 28, and 29.
34. The unconstitutional actions, misbehavior, and abuse by TRAVIS
COUNTY, TCSD, TUMLINSON, KLEKAR, LERMA, COTTON, UNIDENTIFIED
THREE, SWAIM, MORGAN, SAENZ, GUERRERO, ESCAMILLA, and HAMILTON
were caused by the defamation and hatred from WILLIAMSON COUNTY, WCSD,
WILSON, RYE, HOBBS, and various employees and policy makers of WILLIAMSON
COUNTY, who have harassed, assaulted, subjected to repetitive false arrests, malicious
prosecutions, and defamation for 15 years in retaliation against her for her zealous
representation of clients, exposure of their corruption, and filing civil suits against them.
35. In WILLIAMSON COUNTY, for the past 15 years BARNES has been a
vocal critic of the customs, habits, practices, policies, and procedures of the
WILLIAMSON COUNTY Criminal Justice system, especially the wayward deputies
who trample on civil and constitutional rights with great pride, bravado, and fanfare, the
malicious prosecutors who train and encourage these overt violations, and certain
politically motivated or self-interested judges who do absolutely nothing to correct it.6
criminal conspiracy with WCSD, WILLIAMSON COUNTY, HOBBS, RYE, BRADLEY, MCCABE,
MCDONALD, and other employees of WILLIAMSON COUNTY.
6
Once BARNES is able to access her files, records, and evidence, BARNES will be able to present
numerous incidents, misbehavior, criminal activity, abuses, malicious and politically motivated
prosecutions, and retaliation over the past 15 years of BARNES, her clients, and others similarly situated to
show the habit, practice, custom, practice, policy, and procedure of WILLIAMSON COUNTY derived
from its extensive KKK affiliations and that same resulting mentality, which they like to euphuistically
refer to as the "good ole boy" system to cover up the racist, sexist, and "economic cleansing" intent.
BARNES has sought and been denied any recourse by the state and federal courts, which has only fueled
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BARNES has repeatedly placed WILLIAMSON COUNTY on notice of this criminal
activity by the deputies, prosecutors, and other employees. WILLIAMSON COUNTY
has been on notice since 1997, and especially since 1999 when BARNES filed her initial
action against the WCSD, sheriff, and WILLIAMSON COUNTY under Cause No. 99-
360-C368 filed in CARNES' court. The WILLIAMSON COUNTY commissioner's
court would have executive session meetings with RYE and others concerning the
allegations in that litigation, and they led a vicious and malicious retaliatory campaign
against BARNES and subjected her to numerous false arrests, harassment, and abuse ever
since that time. The attorney for WILLIAMSON COUNTY, WCSD, and
WILLIAMSON COUNTY Commissioner's Court, for civil litigation, Mike Davis, was
the first to start the "mental illness" defamatory per se campaign during that litigation and
conspired with Kevin Madison to have BARNES arrested from her office on Main Street,
the first day she moved her office from TRAVIS COUNTY to WILLIAMSON
COUNTY on another false and bogus arrest. Thus, WILLIAMSON COUNTY, WCSD,
WILSON, WILLIAMSON COUNTY Commissioner's Court, and all the top policy
makers of WILLIAMSON COUNTY have known about this malicious conspiracy
against BARNES for over a decade, and they have encouraged it and done nothing to
resolve it or rectify the situation caused by the false arrests, compounding harassment,
and flamed, encouraged and escalated, the abuse and open hostility. BARNES has been assaulted from
behind three times by male deputies at a courthouse while conducting business. BARNES has been
subjected to over a dozen false arrests, and her children have been subjected to harassment, accusations,
and abuses in school because it is the habit, practice, and custom of WILLIAMSON COUNTY and WCSD,
to attack their targets through children and often use school employees and CPS investigators to harass,
injure, and harm the children to get to the parents or get to the parents though the schools or CPS. Both of
BARNES' children were subjected to false accusations of crime, illegal searches and seizures, and had their
personal property stolen from them by WILLIAMSON COUNTY law enforcement employees. The events
covered in this pleading are the tip of the iceberg of what BARNES and her children have been subjected to
over the past 15 years, just for BARNES standing up to these corrupt bullies. The custom, habit and
36
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malicious prosecutions, and defamatory "caution flags" and other derogatory comments
made when anyone runs BARNES' driver's license number. They have not even
attempted to make a good faith investigation into these matters and have failed and
refused to respond in any meaningful manner to the numerous letters and attempts to
resolve this dispute sent by BARNES over the years. BARNES even deposed the sheriff
and county judge during the second case against WILLIAMSON COUNTY. Thus, all of
these unlawful acts were done or approved by the persons with final policy-making
authority.
36. BARNES has a wealth of experiences and cases that will prove this
pattern, practice, habit, custom, policy, and procedure that is ingrained and endemic in
WILLIAMSON COUNTY. However, this court has advised of the Rule 8 limits on
pleadings and notice of intent to dismiss, therefore, BARNES cannot plead them all now
to show the habit, practice, custom, policy and procedure of WILLIAMSON COUNTY,
WCSD, and the malicious prosecutors. The last case, the Arnold Garza case, starting in
early 2010, was so replete with corruption that it led to the immediate retaliation against
BARNES that actually began during the time BARNES was representing Arnold Garza.
37. In order to demonstrate the habit, practice, and custom of WILLIAMSON
COUNTY and its law enforcement officers and prosecutors, the Arnold Garza case is
relevant because the same tactics were used against BARNES as were used against
Arnold Garza and others. The Round Rock Police Department acted illegally and
unconstitutionally on December 14, 2009 when they unlawfully entered the habitation of
Arnold Garza without a warrant or probable cause in violation of United States
pattern will be amply established and there will be no doubt in any objective persons mind that these were
not isolated incidents, but were calculated, concerted efforts to run BARNES out of town and discredit her.
37
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Constitution Amend. 4, 14 and Texas Constitution, Art. I § 9. Arnold Garza was initially
thrown on the floor in his own home and told he was being arrested for "failure to ID;"
then when they took him to jail and discovered that he had given his correct name and
date of birth, they charged him with the vague and overly broad favorite, "interference
with the duties of a police officer."7
38. WILLIAMSON COUNTY Attorney's Office, (RYE, FIOBBS, and
Melissa Hervey, Justice of Texas Court of Criminal Appeals Barbara Flervey' s daughter),
consistent with their habit, practice, and custom maliciously prosecuted Arnold Garza,
and BROOKS blatantly violated Arnold Garza's constitutional and legal rights, as is her
custom, practice, and habit. BROOKS pulled out the play book to protect the county
from civil liability when rights are violated, and threw Arnold Garza in jail for six months
for "contempt of court" then court appointed a lawyer so she could institute C.C.P. art.
46B and thereby incarcerate him indefinitely without any semblance of due process until
he is ready to plead guilty to gain his freedom.
39. After the commitment order was entered, BARNES was retained and filed
a motion to recuse BROOKS. The case should have been transferred to one of the other
two county judges; however, BROOKS, as is the custom and habit of judges wanting to
throw a case, immediately caused Judge Stubblefield's secretary to abuse his rubber
stamp and assign a "visiting judge" to the case. The "visiting judge" selected was not
even on the approved list for appointments in this administrative district. This "visiting
Of all the frivolous and false arrests and malicious prosecutions heaped on BARNES since 1997,
"interference with the duties of a public servant" has been the only conviction because you can literally
convict anyone under that statute. That malicious prosecution was by RYE as well. BARNES was actually
arrested for "evading arrest and refusal to sign the traffic citation" but when those allegations proved to be
false, the charges morphed into "interference with duties" just like Arnold Garza' s false arrest was
transformed.
38
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judge" was selected because he was a close family friend and political cohort of Justice
Barbara Hervey and her daughter, Melissa Hervey, was the prosecutor maliciously
prosecuting the case with HOBBS and RYE.
40. BARNES has a long contentious history with HOBBS and RYE because
they engage in overt illegal, unethical, and retaliatory activities and have for years.8
BARNES has repeatedly reported their abuses of office, to no avail. All actions set forth
herein by RYE were supervised, directed, and ratified by HOBBS.
41. BARNES exposed the abuse and constitutional violations, and corruption
of the "forensic expert" and got the commitment order reversed because it was nothing
but a fraudulent ruse. BARNES was targeted when she represented Arnold Garza and
exposed the criminal conspiracy and illegal combination headed by RYE, HOBBS, and
the WILLIAMSON COUNTY Attorney's Office and BROOKS, which then, in
retaliation, turned on BARNES and her family. Thereafter, at the request and instigation
of HOBBS, RYE, BROOKS, and others, MCDONALD, MCCABE, BRADLEY, the
WILLIAMSON COUNTY District Attorney's Office, and the WCSD directly
participated in the criminal conspiracy to cover-up for the wrongdoing or criminal
activity of RYE, HOBBS, Melissa Hervey, WILLIAMSON COUNTY Attorney's Office,
and BROOKS on behalf of WILLIAMSON COUNTY.
42. Even though BROOKS was technically out of the case, she and her staff
deliberately defamed BARNES, controlled the case because they controlled the settings
8
BARNES has been involuntarily separated from her files and records, but when those records can be
accessed, BARNES has several incidents and patterns of illegal and unethical conduct by these two
prosecutors spanning yearsthey worked under the prior County Attorney, Eugene Taylor, and they have
continued in their same positions under the new County Attorney, who may be the next District Attorney,
replacing BRADLEY, who recently lost in the primaries to Jana Duty. RYE had been involved from the
very first false arrest of BARNES in 1997 and the ensuing civil litigation arising out of that false arrest and
39
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and the "visiting judge" and undermined the case. BROOKS ordered the WCSD deputies
who were assigned to courthouse security to follow and stay with BARNES and Arnold
Garza at all times. Ever since BROOKS instituted that protocol to harass, intimidate, and
oppress BARNES, she has not ever been allowed into the WILLIAMSON COUNTY
Courthouse without being escorted everywhere by a WCSD deputy. The WCSD deputies
have been ordered to stay with BARNES and watch and monitor her for the entire time
she is in the courthouse, in violation of United States Constitution, Amends. 1, 4, and 14,
as well as Texas Constitution, Art. I, § 3, 3a, 9, 13, 19, 27, and 29. That practice and
policy has continued unabated ever since the Arnold Garza case, and has substantially
impaired BARNES ability to practice law.
43. RYE unethically represented to the "visiting judge" at two separate pre-
trial hearings that there were no video or audio recordings to produce. This is the habit,
practice, and custom to withhold evidence that is clearly exculpatory (there were at least
twelve audio-video recordings and RYE finally produced 6 of them two days prior to trial
after BARNES served the subpoena duces tecum on the officers to appear and bring the
audio-video recording from their patrol car and on the dispatcher to bring his recording
had BARNES not subpoenaed them, RYE never would have produced them); RYE also
failed to disclose an exculpatory civilian witness who also had exculpatory photographs,
suborned perjury by the arresting officer, tampered with the witnesses by instructing the
officers to ignore the subpoenas BARNES served on them such that the main witnesses
were "out of town" during the trial and the "visiting judge" would not issue a writ of
attachment.
malicious prosecution, and was the prosecutor in the most recent Arnold Garza trial, out of which this
instant false arrest and malicious prosecution arose.
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 41 of 57
44. On May 3, 2010, two days prior to trial, while BARNES was back in the
WILLIAMSON COUNTY Attorney's office again attempting to get the discovery the
judge had ordered RYE to produce weeks before, RYE and an armed male escort used
their position with the County to gain the private security code to the front gate to
BARNES' residence. They intentionally and knowingly trespassed on BARNES' private
property with a loaded shotgun and firearm, despite bold "PRIVATE PROPERTY NO
TRESPASSiNG Violators Will Be Prosecuted" signs clearly and visibly displayed.
BARNES was not home, but they alarmed and frightened BARNES' minor child because
they were snooping around the house with a sidearm and loaded shotgun.
45. In keeping with the habit, practice, and custom of WCSD, WILLIAMSON
COUNTY, and its prosecutors, the deputies of WCSD will send out communications
defaming BARNES and contact other local law enforcement agencies and the law
enforcement officers at the schools where BARNES' children are in attendance to harass
and intimidate BARNES personally and through her children. This habit, custom,
pattern, and practice have been going on for over a decade and BARNES' children have
been harassed and traumatize repeatedly over the years. Just in connection with the
Arnold Garza case, BARNES' minor child was confronted by two men he did not know
at the house after school on Monday, May 3, 2010; these two men were at the house,
which is secluded and secure behind a locked security gate, and they were armed and
displaying the sidearm and the loaded shotgun; and they were in a civilian car, in civilian
clothes, and looking for his mother. On Friday, May 7, 2010, while the trial was in
progress, BARNES minor son was handcuffed at school in front of his friends and
teachers, and had to be rescued by the school's assistant principal. On Saturday, May 8,
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2010, BARNES' minor son and his minor friends were frightened and alarmed by three
marked WCSD units surrounding the home with weapons drawn and almost witnessed
his mother shot to deaththe first time he was forced to witness WCSD pull loaded
weapons on his mother was when he was only 7 years old and it severely traumatized
him: he has witnessed his mother being abused and subjected to false arrests and
violence at the hands of uniformed WCSD deputies ever since he was 2 years old. On
Monday, May 10, 2010, the same officer who had handcuffed him on Friday, May 7,
2010, and 4 other officers arrested BARNES' minor son at school in front of his friends
and teachers. These WILLIAMSON COUNTY law enforcement officers began stalking
him and filing frivolous criminal charges against him like "disruption of class," "curfew"
violation even though he does not reside in the city limits, and "possession of drug
paraphernalia" when they searched a car he was a passenger in and found something
down in one of the seats, and did not charge the driver or owner of the vehicle or any of
the other passengers, and would not even let him see what it was they found. They
stopped him and searched him and his vehicle constantly, made him miss lunch at school
one day claiming they saw "a joint" in his carwhen he went out and unlocked the car
door for them to search his car, it was a large grass bur stuck on his friend's backpack.
Yet, they did not go into the school and retract the defamatory statements made to school
personnel. They warned parents to keep their children away because he was "bad news."
They had circulated rumors that ATF was going to raid the BARNES' residencethis
was the rumor for weeks prior to RYE entering BARNES' property and the unwarranted
deadly force raid by WCSD on Saturday, May 8, 2010.
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 43 of 57
46. The Arnold Garza case was tried from May 5-7, 2010, and very vocal
complaints were made throughout the trial by BARNES concerning RYE's criminal,
dishonest, and unethical activities, including his criminal trespass to BARNES' residence
on May 3, 2010. On May 8, 2010, BARNES home was surrounded by seven or eight
armed WCSD deputies, who were crouched down with their weapons drawn and pointed
at BARNES through her open windows. The deputies would not tell BARNES why they
were there or if they had a warrant.
47. This malicious and retaliatory armed home invasion was at approximately
7:30 or 7:40 p.m. on Saturday evening, May 8, 2010. BARNES was subjected to a
vicious unlawful restraint, search, and seizure, by WCSD, HERNANDEZ, RICHTER,
TRAVIS, NEWELL, HUGHEY, BOGAN, FOSTER,, WAGGONER, FOSTER, DE LA
VEGA, BR1NKMANN, andlor BARTZ because SCHEFFLER with utmost malice
directed them to BARNES' residence.
48. WCSD had no warrant. There was no probable cause to surround
BARNES' home and endanger BARNES and minor children, and this gross violation of
4th
the amendment and Art. I, § 9 of the Texas Constitution was done intentionally,
deliberately, knowingly, and with malice. BARNES was not allowed to leave and keep
her social plans for that evening, and had to call others for assistance.
49. BARNES' habitation is 1.7 miles from the front gate, which can only be
accessed with a private, secret, and confidential security code, and which is clearly posted
with a bold red "PRIVATE PROPERTY NO TRESPASSING Violators Will Be
Prosecuted" sign, and over .6 miles from when the pavement ends so it is clearly a private
road, and then through another secondary gate with fencing around the 30 acres of private
43
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residential area. There is no way they did not know that this was private property and
that they were engaging in criminal trespass without a warrant, probable cause, or exigent
circumstances.
50. Not only was the property clearly posted as "PRIVATE PROPERTY NO
TRESPASSiNG, Violators Will Be Prosecuted," it was clearly private property with a
fence and secondary gate, and these criminal actors knew that they were restricting
BARNES' movement without BARNES' consent so as to alarm BARNES and interfere
substantially with her liberty and this restraint and seizure was accomplished by force,
intimidation, and threatened use of deadly force.
51. BARNES repeatedly advised these criminal actors that if they did not
have a warrant that they must immediately leave the private property and they failed and
refused to do so and held BARNES hostage for 20 minutes before a downpour of rain
sent them to the three WCSD vehicles that they had blocking the driveway. BARNES
was forced to retreat upstairs to escape their deadly conduct and threat of being caught in
a hostile cross-fire, and called 911. No assistance ever came in response to the 911 call
and the dispatcher employed by WCSD failed and refused to disclose whether or not they
had a warrant and failed and refused to instruct the criminal actors to leave, or cease and
desist from this criminal and unconstitutional activity. These criminal actors knew they
would have BARNES trapped and surrounded and that no one would come to BARNES'
aid or assistance because the WCSD would be the only entity answering a 911 call from
BARNESthis has been the habitual pattern ever since 1997 when BARNES called 911
for assistance during the first false arrest by WCSD.
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52. The recordings and reports later proved that two of the deputies had
already planted the excuse to kill BARNES by falsely claiming that they heard BARNES
"pumping a shotgun" and if it had not been for the sniper looking at BARNES through an
upstairs bedroom window with his scope and verifying that she did not have a gun, these
deputies were prepared to open fire and to utilize a sniper to kill BARNES. They would
have employed the same media frenzy and blamed BARNES for her own death; and as is
the habit, practice, and custom because they could count on the STATESMAN, KXAN,
KVUE, KEYE, and all the local papers and television stations to simply re-broadcast
their deliberate and calculated deceptions and cover-up schemes.
53. No reasonable law enforcement officer could have reasonably believed
that this conduct was lawful, and would perforce know that this conduct was
unconstitutional in violation of United States Constitution, Amends. 4, 14 and Texas
Constitution Art. I, § 9, 19 and 29. These rights were well established in 2010 and for at
least 15 years prior thereto when Plaintiffs' same rights have been repeatedly violated.
These officers knew that they had no warrant and that no valid exception to the warrant
requirement applied. The content of the dubious suspicion (SCHEFFLER's malicious
misdirection to them to go to BARNES' residence)9 failed to match the extreme degree of
The audio recording recovered from one of the WCSD deputy's vehicle revealed how the WCSD deputies
ended up at BARNES' residence on May 8, 2010, instead of at 33 Indian Trail, Liberty Hill, as reported by
GITTEL. When the deputy radioed to dispatch that they could not locate 33 Indian Trail, (because they
were in Leander, not Liberty Hill), SCHEFFLER interrupted and asked if they were on Indian Trail; when
they answered in the affirmative, SCHEFFLER then directed them to BARNES' residenceyou go
through the neighborhood and when the road ends, cross the river, and "Carolyn Barnes claims to own all
that property over there." That was their only "probable cause" to go to BARNES' residence four hours
after the alleged "shots" and surround BARNES' residence with weapons drawn. When the tapes were
reviewed, there was a four hour delay from the time GITTEL claims to have heard the shots and the time
that the WCSD deputies arrived at BARNES' residence, and BARNES was not even home at the time that
GITTEL claims to have heard the shots that POPPA assumed were aimed at her. After SCHEFFLER' s
misdirection to BARNES, no one ever looked for or found the vagrant woman who came out of the pasture
near a condemned house at 33 Indian Trail in Liberty Hill, as initially reported by GITTEL. Once the
WILLIAMSON COUNTY prosecutor, MCDONALD, met with the WCSD deputies that Saturday, May 8,
- -
--I
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the intrusion and the serious risk of death posed by the unreasonable conduct of these
officers.
54. On Monday, May 10, 2010, BARNES filed a letter and probable cause
affidavit with the WILLIAMSON COUNTY District Attorney and WILLIAMSON
COUNTY Attorney, seeking an investigation into all of this criminal activity, and to file
criminal charges against RYE's criminal activities surrounding the Arnold Garza trial and
the malicious retaliation of WCSD surrounding the residence the previous Saturday.
55. On Tuesday, May 11, 2010, BRINKMANN called and informed
BARNES that he had a warrant for her arrest for Aggravated Assault on a Public Servant.
BRINKMANN refused to tell her any details. BRINKMANN has made outlandish and
theatrical accusations in the past against BARNES, and BARNES assumed at the time
that one of the deputies who stormed her home on Saturday had claimed she drew a
weapon or shot at them.
56. When BARNES arrived at the WCSD on May 11, 2010, she was met by
BRINKMANN and BARTZ (this deputy tried for years to bring criminal charges against
BARNES accusing her of neglect and abuse of her children and threatened to take
BARNES' children from her during the times of intense retaliation). BARTZ took
BARNES' keys from her and they led her to an interrogation room.
57. After a while, BR1NKMANN entered the room and started playing his
childish deceptive games and told BARNES this outlandish and incredible story that
BARNES was standing at her front door talking to a census worker and just suddenly
pulled out a gun and starting shooting at her point blank several times. BARNES
2010, and planned the malicious arrest and prosecution, no one care any longer about the truth, they had
their desired target, and it was just a matter of tampering with the records, the witness, and manipulating
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 47 of 57
immediately felt that she was being charged with a murder or that the victim was in the
hospital. BARNES knew that no census worker had ever been on her property, so it was
clearly a bogus charge from the inception, and it was clear that they knew it was
groundless and bogus. When BARNES asked if the victim were dead, they said no; and
when BARNES asked if the victim was in the hospital, BRINKMANN said "no, you
missed." This was not even credible and BARNES could not even imagine how they
concocted such an outlandish story. So, BARNES asked "what would be my motive?"
and BRINKMANN sarcastically said "you thought she looked like Dale Rye."°
BARNES knew right then that this was a malicious charge and retaliation because of
BARNES' complaint against RYE for trespassing on her property and gaining access to
the security code through the misuse of his position with WILLIAMSON COUNTY.
58. Once again, RYE commits a crime, and rather than investigating and
charging him, they fabricate new charges against BARNES. This has been the habit,
practice, and custom of WILLIAMSON COUNTY, the WCSD, and the WILLIAMSON
COUNTY prosecutors for 15 years." RYE and HOBBS have escaped any accountability
the "facts."
10
BARNES has no idea what GI1TEL looks like because WCSD and MCCABE, MCDONALD, and
BRADLEY have failed and refused to provide BARNES with a photo or any other information about her
accuser; however, if she looks like Dale Rye, she is one ugly woman. Dale Rye is bald on the top of his
head, with long, gray, wavy hair surrounding his large bald spot, wears glasses, and walks on his tip-toes.
There is no way anyone could look like Dale Rye. However, the WCSD and MCDONALD, MCCABE,
BRADLEY, HOBBS, and RYE concocted this outlandish motive that BARNES, due to her severe mental
disease, persecutory delusions, and paranoia suffered a complete break with reality and thought GITTEL
was RYE and tried to kill her thinking she was RYE! HOBBS participated in a media interview
immediately on May 11, 2010 and stated that BARNES was a "disturbed individual."
During the 1999 lawsuit against WCSD and deputies during the first false arrests, the attorney
representing WCSD sent an open fax to BARNES' employees advising them that she was crazy and when
BARNES' took his deposition to find the basis for the defamatory per se statements made to BARNES'
employees, he brought in the DSM-IV and diagnosed BARNES, but could not back up his mere self-
serving defamatory statements. This has been the standard operating procedure for these boys ever since
that time because they feel they do not have to respond when their corruption is exposed if they can simply
dismiss BARNES as crazy, with no credibility. Due to the ingrained "good ole boy" sexual prejudice, this
tactic is often effective due to a like-minded audience.
47
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or liability for years of abusive and criminal conduct.
59. BARNES has been retaliated against ever since the Vanessa Marie
Stalling case in 1995 where the deputies planted evidence and perjured themselves and
the prosecutor had to dismiss the case in the middle of the trial. BARNES' first bogus
false arrest occurred in 1997. BARNES has been arrested over 12 times during the past
15 years, especially after BARNES was unsuccessful in obtaining relief from the courts
and redress of her grievances, with a lawsuit against WILLIAMSON COUNTY, WCSD,
and deputies in 1999, and another filed in 2002.12
60. On May 11, 2010, at the point where the "interrogation" became childish
and nonsensical, BARNES informed BRINKMANN that when he wanted to get serious,
she would answer his questions, but she was not going to play games with him.
BRINKMANN and BARTZ then informed BARNES she was going to jail and that they
were already in the process of searching her home. BRINKMANN refused to provide
BARNES with a copy of the arrest warrant or search warrant. BARNES requested a
copy of the warrants and probable cause affidavit repeatedly for over a week, and her
attorney also began requesting copies, because they were never filed of record.
61. BARNES was then placed in jail on May, 11, 2010,13 and not allowed to
make any phone calls for five hours while deputies employed by WILLIAMSON
COUNTY and the WCSD ransacked her home, vehicles, storage buildings, travel trailers,
12
BARNES cannot access her files or information at this time in order to provide the details from the prior
false arrests, abuses, and lawsuits, however, BARNES incorporates all those arrests, charges, discovery in
those cases, and the prior litigation against WILLIAMSON COUNTY, WCSD, employees of
WILLIAMSON COUNTY, and deputies of WCSD, by reference the same as if set forth at length in order
to prove the habit, practice, custom, policy, and procedure of WILLIAMSON COUNTY, WCSD, and
certain prosecutors and certain judges, and to prove the intent, motive, and malice of these Defendants. See
Paragraphs 1-5 in the Judicial Notice part of Section II above.
13
It is over two years later and BARNES is still in forced captivity, stripped of all her legal rights, with no
recourse in violation of the open courts doctrine.
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 49 of 57
and barn, taking what they wanted, without a warrant.
62. About two hours later, a deputy came and took BARNES back into the
interrogation room and demanded the combination to her private and business safe,
which would have significantly compromised attorney-client privilege with her clients
and invaded her right to privacy and right to be left alone. BARNES stated that she
would go with the deputy to open the safe for them, but that she had to be present when
they searched it. BARNES had nothing to hide, but had to protect the privacy and
privilege of her clients. WCSD refused to let BARNES go open the safe so they could
search it in her presence. Unlawfully and without a warrant, WCSD, HUGHEY,
BOGAN, FOSTER, WAGGONER, NEWELL, RICHTER, TRAVIS, HERNANDEZ,
BRINKMANN, BARTZ, DE LA VEGA, SCHEFFLER, HOBBS, RYE, BRADLEY,
MCDONALD, and MCCABE disrespectfully and forcefully removed the large safe from
BARNES' residence, scraping off the paint and destroying the tumbler in the process and
threw it in the back of an open truck bed. These WILLIAMSON COUNTY employees
knew they had no warrant to search the safe or to remove the safe from BARNES'
residence, and they also knew that BARNES had voluntarily agreed to open the safe for
them and allow them to search it, if it was done in her presence.
63. WILLIAMSON COUNTY, WCSD, HUGHEY, FOSTER, BOGAN,
WAGGONER, NEWELL, RICHTER, TRAVIS, HERNANDEZ, BRINKMANN,
BARTZ, DE LA VEGA, SCHEFFLER, HOBBS, RYE, BRADLEY, MCDONALD, and
MCCABE knew they had no warrant to search BARNES' vehicles, buildings, storage
units, barn, or travel trailers; however, they used the keys that BARTZ and
BRINKMANN took from BARNES at the jail to unlock and ransack her Jeep that was
Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 50 of 57
parked in the WILLIAMSON COUNTY parking garage; then, took the keys and entered
her locked residence, all of her locked vehicles at the residence, her locked barn, locked
storage units, locked buildings, and locked travel trailers. On May 11, 2010, the law was
clearly established that deputies could not enter and search locked vehicles, buildings,
barns, storage units, or travel trailers without a warrant; nevertheless, in keeping with the
habit, practice, custom, and policy of WILLIAMSON COUNTY and the WCSD, they
proceeded with a conscious disregard and deliberate indifference to the constitutional
rights, safety, and welfare of others. During this unauthorized search, the said deputies
took whatever they wanted from these locked premises, and caused damages and
destruction to the premises and contents of the premises. This was an unreasonable
search and seizure and it was conducted with utmost malice and deprived BARNES of
her right to privacy and to be left alone.14 This search was conducted like a general
warrant for an invasive fishing expedition. Further, when they were through, they left
everything wide open and unlocked.
64. BARNES had a reasonable expectation of privacy in her locked
automobiles, her locked safe, her locked travel trailers, and her locked buildings on her
property. It was not reasonable for these officers to search these areas without a warrant
and to remove the safe from her home and other items of personal property from her
locked buildings and automobiles without a warrant while holding BARNES in jail, and
refusing to serve her with a copy of the arrest warrant or the search warrant or probable
14
Hours later after the search and ransacking was concluded, BRINKMANN came into the jail and told the
jailers that the search was done and that they could turn the phones back on. The WCSD had turned off the
phones to prevent BARNES from making any calls for over 5 hours while they conducted the search, so
that there would be no witnesses to their crimes. BARNES was not even allowed to call her minor son to
warn him and his friends, so that they would not be in harm's way with the property and residence
swarming with armed and hostile WCSD deputies and prosecutors.
50
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cause affidavit. Further, the alleged arrest and search warrants obtained after the search
were not based on probable cause, but on a false and fraudulent probable cause affidavit
(signed by BRINKMANN and issued with a view toward creating media sensationalism
rather than the truth); were not obtained from a neutral and detached magistrate; and did
not specifically describe the things to be looked for, but allowed a general fishing
expedition.
65. These officers could not have reasonably believed that their conduct was
consistent with clearly established constitutional rights and the case law interpreting
same. Mere suspicion, animosity or hostility, andlor maliciously coached accusations
cannot substitute for probable cause.
66. There was never any impartial intermediary that intervened to break the
chain of causationno neutral and detached magistrate, and no independent review by a
district attorney because they were involved with the deputies from the inception and
during the conspiratorial "investigation" phase where MCDONALD was physically
present at the Cedar Park Annex when the WCSD deputies met on Saturday, May 8,
2010, to plan this bad faith and malicious "investigation" and arrest, when they concocted
a "crazy" motive for media sensationalism, and malicious prosecution. The prosecutors
were involved from the inception of this bogus "investigation" which consisted of
tampering with the governmental records and reports to make it look like BARNES was
the perpetrator and the shots were fired at her residence, tampering with the witnesses,
and manipulating GITTEL to fabricate accusations and identify BARNES from an
intentionally suggestive photo array. No reasonable investigation would have resulted in
the creation and fabrication of a felony crime when none was initially reported, especially
51
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when it would require a criminal trespasser (GITTEL) to be absolved of her crime and to
prosecute the landowner (BARNES) contrary to the clear intent of the Castle Doctrine.
No reasonable deputy or prosecutor, acting in good faith, would ever conclude that
BARNES perpetrated this crime or that a crime was committed, based on the initial
report and actions of GITTEL and POPPA.'5
67. GITTEL claimed that she encountered the vagrant woman with a revolver
coming out of a pasture near a condenmed house at 33 Indian Trail in Liberty Hill around
3:45 p.m., and that she called POPPA from her cell phone at 4:10 p.m. to arranged to
meet with him at Spoons Restaurant. At 5:20 p.m., POPPA called 911 to report shots
being fired as a requirement on the printed from for his report to the Census Bureau, and
GITTEL was heard in the background with him when he made the call. (The WCSD
showed up at BARNES' residence with weapons drawn at 7:30 or 7:40 p.m.) Since
POPPA was at the Spoons Restaurant in Leander with GITTEL when he made the call
from his cell phone, the call went to the Leander Police Department, and was then
transferred to WCSD. The initial report was that GITTEL had gone to 33 Indian Trail,
Liberty Hill, Texas not 419 Indian Trail, Leander, Texas (BARNES' residence).
GITTEL initially reported that she heard gunshots as she left, she did not say that she was
15
It is a fact that GITI'EL had a cell phone on her because she called POPPA, according to her account, at
4:10 p.m. to arrange to meet with him at the Spoon's Restaurant. Despite discovery requests and a court
order directing MCCABE, MCDONALD, and BRADLEY to produce GITTEL' s cell phone records, the
Defendants continue to fail and refuse to produce these exculpatory records. If GITTEL had a cell phone
on her and she was really being shot at and in fear of her life, why did she never call 911? These same
malicious prosecutors also continue to fail and refuse to produce the print out from the Census Bureau and
the map showing the location where GITTEL was scheduled to be on May 8, 2010, despite a court order to
produce this evidence, especially when GITTEL and POPPA had these in their hands on May 8, 2010 when
they met with HERNANDEZ. No reasonable investigator would fail to make copies of these documents
and preserve this crucial evidence. These documents are clearly exculpatory because they will show that
GITTEL was never sent to BARNES' residence at 419 Indian Trail in Leander, and the map certainly did
not direct her to BARNES' property or residence. No reasonable "investigator," deputy, or prosecutor,
acting in good faith would fail to preserve this exculpatory evidence or refuse to produce it. This is the
52
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"shot at;" however, when the dispatcher asked POPPA if the shots were fired at GITTEL,
he responded "well, that's the assumption, if you hear shots, you assume they're fired at
you." So, speculation, conjecture, and surmise by POPPA, (who was not even there),
when mixed with hatred and malice, is massaged into an absolute beyond a reasonable
doubt fact to convict someone of a first degree felony and destroy their life and
reputation. No reasonable investigator, whether a deputy or prosecutor, would have acted
in this manner. Also, GITTEL initially stated that the house was a "condenmed" house
"with everything pulled outside like it was being remodeled" when BARNES home was
built new in 2004; and she stated that the woman, who may have been a "vagrant," came
"out of a pasture," not out of the house. After WCSD got involved, everything got so
tampered with, manipulated, and twisted, that the truth may never be known.
68. Around 7:30 or 7:40 p.m., four hours after the alleged incident, WCSD,
including HERNANDEZ, who had met with GITTEL and POPPA at the Spoons
Restaurant, RICHTER, TRAVIS, and others, were attempting to locate 33 Indian Trail in
Leander, not Liberty Hill as initially reported. When they could not locate 33 Indian
Trail in Leander, they called dispatch and asked for better directions from GITTEL; but,
before they could get a response, SCHEFFLER, as is his habit, practice, and custom,
intervened and directed the deputies to go to BARNES' residence. SCEFFLER asked if
they were on Indian Trail, and when they responded in the affirmative, SCHEFFLER
directed them to go through the neighborhood, over the river, and "Carolyn Barnes
claims to own all that property over there." That misdirection and the long-standing
habit, practice, custom, and policy of Williamson County and its law enforcement agencies and
prosecutors.
53
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malice was the only "probable cause"16 for the WCSD, HERNANDEZ, TRAVIS,
RICHTER, and other deputies, to travel a mile away and surround BARNES' residence
with their weapons drawn and pointed at BARNES. They had no warrant, there were no
exigent circumstances since the alleged incident had occurred four hours previously, and
they had no legitimate probable cause because neither the mere speculation, conjecture,
and surmise of POPPA nor the malice of these deputies and SCHEFFLER (who has been
involved for a decade with numerous incidents of harassment, trespass on BARNES'
private property, assaults, and bogus charges filed against BARNES) is not probable
cause.
69. While BARNES was held in jail for three days, WCSD could not find one
shred of evidence to corroborate this concocted artifice.17 Rather than admit the obvious,
WSCD, WILLIAMSON COUNTY, its Sheriff, WILSON, its deputies, HUGHEY, DE
LA VEGA, BRINKMANN, BARTZ, BOGAN, FOSTER, WAGGONER, NEWELL,
HERNANDEZ, TRAVIS, RICHTER, and its malicious prosecutors, MCCABE,
BRADLEY, MCDONALD, proceeded nevertheless with a conscious disregard and
deliberate indifference to the rights, safety, and welfare of Plaintiffs. They immediately
began their usual delay tactics, hiding the evidence and witnesses, and bulling,
threatening, and intimidating BARNES and her attorney. Initially, MCCABE,
BRADLEY, and MCDONALD absolutely refused to produce a copy of the warrants, just
as BRINKMANN, BARTZ, and WCSD had done. These prosecutors absolutely refused
16
Malice, speculation, and suspicion are not probable cause to resort to deadly force to invade a private
habitation and engage in criminal trespass.
17
At the time of these retaliatory charges, the State was well aware of the fact that Arnold Garza and
BARNES were material witnesses against HOBBS, RYE, BROOKS, and Melissa Hervey and others acting
in concert with them, including numerous law enforcement officers and two court appointed persons who
also violated the laws and Constitution of the United States and Texas.
54
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to produce the exculpatory evidence even after the court ordered them to do so.
MCCABE, BRADLEY, and MCDONALD refused to disclose the location of the safe or
allow BARNES access to the content of her safe until May 18, 2010, despite numerous
requests.'8 This was an unreasonable invasion of privacy and it had noth
This text is long and has been trimmed here. Open the source document for the complete record.