# Travis County Sheriff's Office Senior Certified Peace Officer Dennis Tumlinson v. Carolyn Barnes > Texas Court of Appeals, 3rd District (Austin) · November 9, 2015 URL: https://www.frixlaw.com/law-library/cases/4075128 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** November 9, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4075128 ## How later opinions describe it (automated extraction) - characterizing arrest as 'curtailment of a person's liberty" ## Opinion text 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 13 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 14 of 57 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 14 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 15 of 57 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 15 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 16 of 57 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, 16 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 17 of 57 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. 17 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 18 of 57 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 18 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 19 of 57 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. 19 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 20 of 57 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 20 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 21 of 57 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. 21 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 22 of 57 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 22 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 23 of 57 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 23 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 24 of 57 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. 24 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 25 of 57 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, 25 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 26 of 57 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 27 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 28 of 57 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 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 29 of 57 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. 29 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 30 of 57 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 30 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 31 of 57 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 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 32 of 57 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 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 33 of 57 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 33 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 34 of 57 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 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 35 of 57 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 35 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 36 of 57 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 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 37 of 57 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 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 38 of 57 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 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 39 of 57 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 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 40 of 57 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, 41 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 42 of 57 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 Case 1:12-cv-00028-LY Document 18 Filed 07/16/12 Page 44 of 57 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. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4075128. Public record. Not legal advice.