WorldPeace - "WorldPeace verses The State Bar of Texas" - World Peace

NO. 2002-42081

COMMISSION FOR LAWYER                 §          IN THE DISTRICT COURT
DISCIPLINE                                                 §
                                                                        §
V.                                                                    §          HARRIS COUNTY, TEXAS
                                                                        §
JOHN WORLDPEACE                                §          269TH JUDICIAL DISTRICT

RESPONDENT’S AMENDED MOTION FOR REHEARING
AND
RESPONDEN’TS SECOND AMENDED RESPONSE TO
PETITIONER’S SECOND MOTION FOR NO EVIDENCE SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF THIS COURT

COMES NOW, WorldPeace and files this RESPONDENT’S AMENDED MOTION FOR REHEARING ON PETITIONER’S SECOND MOTION FOR NO EVIDENCE SUMMARY JUDGMENT and would show the court the following:

NOTE # 1: WorldPeace prays the court to take judicial notice of the file.

NOTE # 2: WorldPeace incorporates RESPONDENT’S SHORT HAND RENDITION

REGARDING RESPONDENT’S MOTION FOR NEW TRIAL,

RESPONDENT’S MOTION TO MODIFY, AND PETITIONER’S SUMMARY

JUDGMENT into this motion.

TABLE OF CONTENTS

--- ONE ---

WORLDPEACE’S GLOBAL RESPONSE TO

THE COMMISSION’S MOTION FOR NO-EVIDENCE SUMMARY JUDGMENT

I. Abuse of Discretion – Authorities

II. The Commission’s Second Amended Motion for No-Evidence Summary Judgment

--- TWO ---

WorldPeace’s line by line response to

Petitioners Second No-evidence Motion for Summary Judgment

I. INTRODUCTION…..………………………………….……………………………………12

II. HISTORY & FACTS……………………………………….……………………………...12

III. NO-EVIDENCE SUMMARY JUDGMENT STANDARDS UNDER RULE 166a(i)…14

IV. ARGUMENT AND AUTHORITIES……………………………………….……………15

A. COUNTERCLAIMS- RULE 13 SANCTIONS AGAINST THE COMMISSION’S ATTORNEYS……………………………………….……………………………………….….15

ELEMENTS AS TO WHICH RESPONDENT HAS NO EVIDENCE AS TO COUNTERCLAIMS REGARDING STATE BAR’S VIOLATION OF WORLDPEACE’S EQUAL RIGHTS……………………………………….……………………………………….………..16

B. COUNTERCLAIMS REGARDING STATE BAR’S VIOLATION OF RESPONDENT’S EQUAL RIGHTS……………………………………….…………………22

ELEMENTS AS TO WHICH RESPONDENT HAS NO EVIDENCE AS TO COUNTERCLAIMS REGARDING STATE BAR’S VIOLATION OF WORLDPEACE’S EQUAL RIGHTS……………………………………….………………………………………23

C. COUNTERCLAIMS REGARDING ATTORNEY FEES……………………………….25

ELEMENTS AS TO WHICH RESPONDENT HAS NO EVIDENCE AS TO COUNTERCLAIMS REGARDING ATTORNEYS FEES…………………………………26

D. COUNTERCLAIMS REGARDING UNCONSTITUTIONAL – DUE PROCESS……32

ELEMENTS AS TO WHICH RESPONDENT HAS NO EVIDENCE AS TO COUNTERCLIMS REGARDING UNCONSTITUTIONAL – DUE PROCESS………….33

E. COUNTERCLAIMS REGARDING UNCONSTITUTIONAL RANGE OF PUNISHMENT……………………………………….………………………………………...34

ELEMENTS AS TO WHICH RESPONDENT HAS NO EVIDENCE AS TO COUNTERCLAIMS REGARDING UNCONSTITUTIONAL RANGE OF PUNISHMENT……………………………………….………………………………………...35

F. COUNTERCLAIMS REGARDING UNCONSTITUTIONAL – THE GRIEVANCE PROCESS IS OPPRESSIVE, ARBITRARY AND CAPRICIOUS…………………………37

ELEMENTS AS TO WHICH RESPONDENT HAS NO EVIDENCE REGARDING UNCONSTITUTIONAL – THE GRIEVANCE PROCESS IS OPPRESSIVE, ARBITRARY AND CAPRICIOUS……………………………………….…………………..39

G. COUNTERCLAIM REGARDING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS……………………………………….……………………………………….……..42

ELEMENTS AS TO WHICH RESPONDENT HAS NO EVIDENCE REGARDING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS…………………………….45

IMMUNITY……………………………………….……………………………………….……47

CONCLUSION……………………………………….………………………………………...50

WORLDPEACE’S CONCLUSION……………………………………….…………………..50

PRAYER FOR RELIEF……………………………………….………………………………51

--- ONE ---

WORLDPEACE’S GLOBAL RESPONSE TO

THE COMMISSION’S MOTION FOR NO-EVIDENCE SUMMARY JUDGMENT

I. ABUSE OF DISCRETION -- AUTHORITIES

The trial court abused its discretion by granting a partial No-evidence Summary Judgment that did not list same of the elements of some of Respondent’s causes of action per Rule 166a(i) TRCP.

“A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts.”

In re: News America Publishing, Inc., 974 S.W. 2d 97, 106 (Tex. App. – San Antonio 1998)

“A trial court abuses its discretion when it acts in an unreasonable or arbitrary manner or, stated differently, when it acts without any reference to guiding rules or principles. See Beaumont Bank, N.A. v. Buller, 806 S.W. 2d 233, 226 (Tex. 1991); Downer v. Aquamarine Operators, Inc., 701 S.W. 2d 238, 241-42 (Tex. 1985)’

In re: Meador, 968 S.W. 2d 346, 353 (Tex. 1997)

“Aside from the “clear abuse of discretion” threshold set forth in Walker, supra, the supreme court has also stated that mandamus will lie to correct a “gross” abuse of discretion by the trial court. State v. Sewell, 487 S.W. 2d 713, 718 (Tex. 1972). “The relator must establish, under the facts of the case, that the facts and law permit the trial court to make but one decision.” Johnson v. Fourth Court of Appeals, 700 S.W. 2d 916, 917 (Tex. 1985). Put differently: “[A] clear abuse of discretion, when utilized as the basis for an original mandamus proceeding, refers to the unique situation wherein the lower court, exercising a ‘discretionary’ authority, has but one viable course to follow and one legitimate way to decide the question presented, but instead issues a contrary ruling.” Cessna Aircraft Co. v. Kirk, 702 S.W. 2d 321, 323 (Tex. App. – Eastland 1986, orig. proceeding).”

Monroe v. Blackmon, 946 S.W. 2d 533, 536 (Tex. App. – Corpus Christi 1997)

“A trial court “abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Johnson v. Fourth Court of Appeals, 700 S.W. 2d 916, 917 (Tex. 1985, orig. proceeding).”

Crouch v. Gleason, 875 S.W. 2d 738, 739 (Tex. App. – Amarillo 1994)

“Following its holding in Walker v. Packer, 827 S.W. 2d 833 (Tex. 1992), the Court noted that “[A] clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion…” 842 S.W. 2d at 271.”

Trinity Capital Corporation v. Briones, 847 S.W. 324, 326 (Tex. App. – El Paso 1993)

“On the other hand, review of a trial court’s determination of the legal principles controlling its ruling is much less deferential. A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion and may result in appellate reversal by extraordinary writ…

Walker v. Packer, 827 S.W. 2d 833, 839-40 (1992) (citations omitted).”

Hartford Accident & Indemnity Company v. Abascal, 831 S.W. 2d 559, 563 (Tex. App. – San Antonio 1992)

“A trial court abuses its discretion by (1) acting arbitrarily and unreasonably, without reference to any guiding rules or principles, or (2) misapplying the law to the established facts of the case. Downer v. Aquamarine Operators, Inc., 701 S.W. 2d 238, 241-42 (Tex. 1985)”

Appleton v. Appleton, 76 S.W. 3d 78, 86 (Tex. App. – Hous. [14^th Dist] 2002)

Ii. THE COMMISSION’S SECOND AMENDED MOTION FOR

NO-EVIDENCE Summary Judgment

The court’s order granting the Commission’s Second Amended Motion for Summary Judgment did not contain a mother hubbard clause. Therefore, all issues and parties in DEFENDAN’T SEVENTH AMENDED ORIGINAL ANSWER AND COUNTERCLAIM AND THIRD PARTY CLAIMS not specifically addressed in the Commission’s Second Amended Motion for No-evidence Summary Judgment and not tried (only the rule violations were tried) (Exhibit “B”) were not adjudicated and the August 27, 2003, Judgment for Disbarment is interlocutory because it is not a final judgment per Rule 301 TRCP.

NOTE: It is an abuse of discretion for the court to use a “mother hubbard” clause as a vehicle to arbitrarily dismiss issues and parties which have not been adjudicated.

A. The following issues in DEFENDANT’S SEVENTH AMENDED ORIGINAL ANSWER AND THIRD PARTY CLAIMS were not addressed in the Commission’s Second Amended Motion for No Evidence Summary Judgment nor were they tried to the jury.

1. WorldPeace’s defense regarding a “suit within a suit”.

2. WorldPeace’s Constitutional counterclaim for violations of his Constitutional rights against self incrimination. (Under the heading regarding Rule 801 and 804 TDRPC)

3. WorldPeace’s affirmative defense of Res Judicata regarding Johnell Collins and the Commission.

4. WorldPeace defense and Constitution counterclaim regarding multiple complainants in one disciplinary petition.

Since the above issues were not adjudicated, the August 27, 2003, Judgment for Disbarment, is interlocutory per Rule 301 TRCP.

B. The ELEMENTS of the following issues in WorldPeace’s Seventh Amended Original Answer and Counterclaim that were listed in the Commission’s Second Amended Motion for No-Evidence Summary Judgment were not specifically listed as mandated by Rule 166a(i). (No elements)

1. WorldPeace’s equal protection rights

2. WorldPeace’s issue regarding awarding attorney fees to the Commission and WorldPeace’s counterclaim for attorneys fees.

3. Violations of WorldPeace Constitutional due process rights

The basic elements of due process are notice, hearing, and an impartial trier of facts. See City of Houston v. Fore, 412 S.W. 2d 35 (Tex. 1967).

4. WorldPeace issue regarding unconstitutional range of punishment

5. WorldPeace’s Constitutional counterclaims regarding oppressive, arbitrary, and capricious nature of the Texas Rules of Disciplinary Procedure.

5. WorldPeace’s counterclaims for Rule 13 TRCP and Chapter 9 & 10 TCP & RC violations (The Commission did not list all the elements in Chapter 9 & 10).

It was an abuse of discretion for the court to grant a summary judgment on these issues where the Commission did not follow the mandatory (MUST) dictates of Rule 166a(i) TRCP and specifically list the ELEMENTS of the issues which the Commission claims WorldPeace had no evidence.

Since the ELEMENTS of these issues were not specifically identified by the Commission in its Second Amended Motion for No-Evidence Summary Judgment, they could not be adjudicated and the August 27, 2003, Judgment for Disbarment is interlocutory per Rule 301 TRCP.

TRCP Rule 166a(i) states, to wit: After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

“The motion must be specific in alleging a lack of evidence on an essential element of a cause of action, but need not specifically attack the evidentiary components that may prove an element of the cause of action.”

Miller v. Elliott, 94 S.W. 3d 38, 42 (Tex. App. – Tyler 2002)

“After adequate time for discovery and without presenting summary judgment evidence, a party is permitted by rule of civil procedure 166a(i) to move for summary judgment on the ground that no evidence supports one or more essential specified elements of an adverse party’s claim or defense on which the adverse party would have the burden of proof at trial.”

Howell v. Hilton Hotels Corp, 84 S.W. 3d 708, 715 (Tex. App. – Hous. [1^st Dist.] 2002)

“The motion for summary judgment may not be general, but must state the elements on which there is no evidence”

Jordan v. Landry’s Seafood Restaurant, Inc., 89 S.W. 3d 737, 741 (Tex. App. – Hous. [1^st Dist.] 2002)

The Commission has tried to rename the facts alleged by WorldPeace in his Seventh Amended Answer and Counterclaim as elements. Facts are not elements. Facts support elements.

All the Commission has done is to try to controvert with unsworn testimony the facts alleged by WorldPeace in his Seventh Amended Answer and Counterclaim.

Mr. Molleston seems to be saying that regardless of whatever the elements are, I controvert each of the facts alleged by WorldPeace.

WorldPeace’s affidavit could not relate the facts to any particular element of the majority of WorldPeace’s causes of action and defenses because no elements were specified by Mr. Molleston.

C. WORLDPEACE’S SEVENTH AMENDED ORIGINAL ANSWER AND COUNTERLAIM AND THIRD PARTY CLAIMS timely filed seven days prior to the date of the Commission’s submission date of July 28, 2003, for its Second Amended Motion for No-Evidence Summary Judgment, added a cause of action for injunctive relief that was not pled in the Commission’s Second Amended Motion for No-Evidence Summary Judgment or in any subsequently filed motion.

Because the injunction issue was not pled in the Commission’s Second Amended Motion for No-Evidence Summary Judgment and because, it was not otherwise adjudicated, the August 27, 2003, Judgment for Disbarment is interlocutory per Rule 301 TRCP.

“Jones is not inconsistent with our holding today to the extent Jones is understood as approving suits for injunctive relief.”

City of Beaumont v. Bouillion, 896 SW2d 143 (Tex. 1995)

“In Bouillion, the Texas Supreme Court held that the Texas Constitution does not create a private right of action for money damages, but that this rule does not preclude plaintiffs from seeking “equitable” relief for violations of their constitutional rights.”

O’Bryant v. City of Midland, 949 SW2d 406 (Tex.App.- Austin, 1997)

“However, suits brought pursuant to constitutional provisions are limited to equitable relief and do not allow a claim for monetary damages except to the extent specifically enunciated in the constitutional provision.”

Nueces County v. Ferguson, 97 SW3d 205 (Tex.App – Corpus Christi, 2003)

Further, Mr. Molleston did not plead that there was no evidence of the elements of a cause of action for injunctive relief.

“A successful applicant for injunctive relief must demonstrate the following four grounds for relief: 1) the existence of a wrongful act; 2) the existence of imminent harm; 3) the existence of irreparable injury; and 4) the absence of an adequate remedy at law. Frey v. DeCordova Bend Estates Owners Ass’n, 632 S.W. 2d 877, 881 (Tex. App. – Fort Worth 1982), aff’d, 647 S.W. 2d 246 (Tex. 1983)”

Priest v. Texas Animal Healt Comm’n, 780 S.W. 2d 874, 875 (Tex. App. – Dallas 1989)

D. The Commission entered a general demurrer when it wrongly stated in its Second Amended Motion for No-evidence Summary Judgment that the only cause of action for Constitutional violations that Respondent WorldPeace had was provided by 42 USCA § 1983. (See Page 7, last sentence in the Commission’s Second Amended Motion for No-evidence Summary Judgment) WorldPeace never pled for damages related to his Constitutional issues but pled only for injunctive relief.

Summary judgment should not be based on a pleading deficiency such as whether a cause of action has been sufficiently pled. Massey v. Armco Steel Co., 652 S.W. 2d 932, 934 (Tex. 1983); Texas Dep’t of Corrections v. Herring, 513 S.W. 2d 6, 10 (Tex. 1974). A plaintiff should be allowed to amend an insufficient pleading to cure the defect. Herring, 513 S.W. 2d at 10. Special exceptions are used to challenge the sufficiency of a pleading. Tex. R. Civ. P. 91. Amendment is a matter of right under special exception practices. Estate of Bourland v. Hanes, 526 S.W. 2d 156, 159 (Tex. Civ. App. – Corpus Christi 1975, writ ref’d n.r.e.). The right to replead should not be circumvented by a motion for summary judgment on the pleadings.

Garza v. State of Texas, 878 S.W. 2d 671, 673-4 (Tex App. – Corpus Christi 1994).

In general, it is improper to grant a summary judgment on a deficient pleading’s failure to state a cause of action when the deficiency can be attacked through a special exception. Texas Dep’t of Corrections v. Herring, 513 S.W. 2d 6, 9-10 (Tex. 1974). To grant summary judgment on that ground would revive the general demurrer discarded by rule 90 of the Texas Rules of Civil Procedure. Id. at 10; see also In re B.I.V., 870 S.W. 2d 12, 13 (Tex. 1994). Before a court may grant a “no cause of action” summary judgment, the nonmovant must be given adequate opportunity to plead a viable cause of action. Pietila v. Crites, 851 S. W. 2d 185, 186 n. 2 (Tex. 1993); Massey v. Armco Steel Co., 652 S.W. 2d 932, 934 (Tex. 1983).

Lewis v. Skippy’s Mistake Bar, 944 S.W. 2d 1, 1 (Tex. App. – Fort Worth 1996)

Texas does not have a general demurrer due to Rule 90 TRCP and therefore the Commission was required to file a motion for special exceptions before WorldPeace’s Constitutional issues or any other non TDRPC Rule issues (which were tried) could be dismissed by summary judgment.

Since the Commission did not file for special exceptions, the issues listed in Section I. A, B and C were not adjudicated and therefore the August 27, 2003, Judgment for Disbarment is interlocutory per Rule 301 TRCP.

E. REGARDING SEVERANCE

In pretrial, the court severed WorldPeace’s mandatory counter claims against Apodaca and Lang. The court also severed WorldPeace’s mandatory constitutional counter claims. The court made no comment specifically about WorldPeace’s mandatory counter claim for intentional infliction of emotional distress. The court did however state that it was going to try only the TDRPC Rule violations. (Exhibit “B”)

The trial court did not sign a formal order severing the case prior to trial but the court did in fact try only the Rule violations to the jury. Since the court did not sign a formal order severing the case, the local rules were not followed in that each of the severed cases were not assigned a new case number before trial.

Harris County local rules for Civil District Courts 3.2.4 Severance. If a severance is granted, the new case will be assigned to the court where the original case pends, bearing the same file date and the same number as the original case with a letter designation;

In WorldPeace’s July 21, 2003, Response to the Commission’s Motion for No Evidence for Summary Judgment, he complained about the court’s refusal to severe the lawsuit per the court’s pre and post trial oral order.

On August 5, 2003, WorldPeace filed his Motion to Sever which the court refused to hear prior to signing a Judgment for Disbarment on August 27, 2003, which incorporated an order which granted Summary Judgment for the Commission and an order severing the Lang and Apodaca lawsuits into an “A” case.

Petitioner’s Motion for No Evidence Summary Judgment was invalid because it referenced a case that was in limbo. According to the court’s pre trial verbal order of severance, Cause Number: 2002-42081, was tried to the jury.

There was no severance order signed by the court and therefore, per the local rules, there was no new case numbers assigned to the severed cases. Therefore, the summary judgment filed by Petitioner could not relate to any specific cause number other than the primary cause number that had been tried to finality.

Without a letter designation, it is impossible to know which severed lawsuit the Commission’s Motion for No-evidence Summary Judgment was filed under and that would have an effect on how that severed case proceeded.

WorldPeace was put at a great disadvantage due to the court’s refusal to sign an order severing the lawsuit in line with its order. WorldPeace would have presented his case differently at trial if he knew the judge was trying the lawsuit under Rule 174(b) TRCP as opposed to Rule 41 TRCP.

WorldPeace amended his Seventh Amended Answer and Counterclaims with two supplemental petitions on August 5, 2003 and August 13, 2003 but since there was no case number assigned to the severed lawsuits, WorldPeace was forced to file his Seventh Amended Petition under the only cause number that existed.

If this matter had been properly severed per the local rules, WorldPeace would have been able to properly sever his Seventh Amended Answer and Mandatory Counterclaims and his supplemental petitions and file them under the proper severed case numbers.

It is an abuse of discretion for the court to sever the lawsuit in its Judgment for Disbarment in a way that supports the Commission’s Motion for No-evidence Summary Judgment after the court grants the Summary Judgment.

WorldPeace had a right to know which causes of action are grouped together and which are not after the severance was ordered and before responding to the Commission’s Motion for No-evidence Summary Judgment.

--- TWO ---

RESPONDENT’S LINE BY LINE RESPONSE TO

PETITIONERS SECOND MOTION FOR NO-EVIDENCE SUMMARY JUDGMENT

INTRODUCTION

This is an attorney disciplinary lawsuit.

Petitioner in this cause of action is the CFLD.

Respondent in this cause of action is John WorldPeace (hereinafter referred to as “WorldPeace’).

The CFLD’s pleading in its Second Amended Disciplinary Petition (hereinafter referred to as “Petition”), which alleges professional misconduct as outlined in Paragraph(s) IV-XLIII of the Petition.

II.

HISTORY & FACTS

On or about November 21, 2002, WorldPeace served the CFLD with his Second Amended Answer and Counterclaim in this cause of action. In that Second Amended Answer and Counterclaim sues Dawn Miller, Leigh Arnemann, and J.G. Molleston.

On or about February 13, 2002, WorldPeace served the CFLD with his Third Amended Answer and Counterclaim in this cause of action. In that Third Amended Answer and Counterclaim sues Dawn Miller, Leigh Arnemann, and J.G. Molleston.

On or about March 26, 2003, WorldPeace served the CFLD with his Fourth Amended Answer and Counterclaim in this cause of action. In that Fourth Amended Answer and Counterclaim sues Dawn Miller, Leigh Arnemann, and J.G. Molleston.

On or about April 3, 2003, WorldPeace served the CFLD with his Fifth Amended Answer and Counterclaim in this cause of action. In that Fifth Amended Answer and Counterclaim sues Dawn Miller, Leigh Arnemann, and J.G. Molleston.

On or about March 7, 2003, WorldPeace served the CFLD with his Sixth Amended Answer and Counterclaim in this cause of action. In that Sixth Amended Answer and Counterclaim and Third Party Claims Respondent sues Dawn Miller, Leigh Arnemann, and J.G. Molleston, the State Bar of Texas, John Lang and Philip Apodaca.

The Court severed the claims against John Lang and Philip Apodaca.

> The Court did not sever the Lang and Apodaca counterclaims until it signed the August 27, 2003, Judgment for Disbarment.

Dawn Miller, Leigh Arneman, J.G. Molleston and the State Bar of Texas (including the Commission for Lawyer Discipline) are sometimes referred to herein as “Counterdefendants.” The Respondent’s Sixth Amended Answer and Counterclaim is Respondent’s live pleading herein.

> Wrong.

> At the time the Commission’s Second Amended Motion for Summary Judgment was submitted to the court on July 28, 2003, WorldPeace’s Seventh Amended Answer and counterclaim had been filed on July 21, 2003, seven days prior to the submission date, adding a cause of action for injunctive relief against Miller, Arneman, and Molleston. The court stated in its order granting the Commission’s Second Amended Motion for No-evidence Summary Judgment that it considered Respondent’s Seventh Amended Answer and Counterclaim.

III.

NO-EVIDENCE SUMMARY JUDGMENT STANDARDS UNDER RULE 166a(i)

Texas summary judgment standards are familiar. Summary judgment is appropriate where: (1) no genuine issue of material fact exists; and (2) the movant is entitled to judgment as a matter of law. Tex.R.Civ.P.166a(c); Nixon v. Mr. Property Management Co., Inc. 690 S.W. 2d 546, 548-49 (Tex. 1985). The function of a summary judgment has long been to eliminate patently unmeritorious claims and untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W. 2d 929, 931 (1952). The purpose of the summary judgment rule is to provide a method of summarily terminating a case when only a question of law is involved and no genuine issue of material fact exists. Gaines v. Hamman, 163 Tex. 618, 358 S.W. 2d 557, 563 (1962).

Joining these familiar summary judgment standards is a no-evidence standard. Its application is particularly appropriate in this context. CFLD moves for a No-Evidence Summary Judgment on Respondent’s assertions on the grounds that there is no evidence to his claims to sue Dawn Miller, Leigh Arnemann, J.G. Molleston and the Commission for Lawyer Discipline.

> The Commission has moved for a No-evidence Summary Judgment Rule 166a(i) and not a 166a(c) Motion for Summary Judgment.

> Rule 166a(i) states, to wit: “After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence.”

“A no-evidence summary judgment is equivalent to a pretrial directed verdict, and this Court applies the same legal sufficiency standard on review. Zapata v. Children's Clinic, 997 S.W.2d 745, 747 (Tex.App.-Corpus Christi 1999, pet. denied). In an appeal of a no-evidence summary judgment, this Court reviews the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). If the nonmovant produces evidence to raise a genuine issue of material fact, summary judgment is improper. Tex. R. Civ. P. 166a(i). All that is required of the non-movant is to produce a scintilla of probative evidence to raise a genuine issue of material fact. Zapata, 997 S.W.2d at 747. "Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or suspicion of a fact.'" Id. (citing Moore v. KMart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied)(quoting Kindred v. Con/Chem Inc., 650 S.W.2d 61, 63 (Tex. 1983)). Conversely, more than a scintilla exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994). The burden of producing evidence is entirely on the non-movant; the movant has no burden to attach any evidence to the motion. Tex. R. Civ. P. 166a(i).”

Ortega v. City National Bank; 97 S.W. 3d 765, 772 (Tex. App. – Corpus Christi 2003)

IV.

ARGUMENT AND AUTHORITIES

A. COUNTERCLAIMS- RULE 13 SANCTIONS AGAINST THE COMMISSION’S ATTORNEYS

WorldPeace filed in his Sixth Counterclaim which states, in its entirety:

“WorldPeace counter sues Dawn Miller, Leigh Arnemann and J.G. Molleston for TRCP Rule 13 Sanctions and sanctions under Chapter 9 and 10 of the Texas Civil Practice and Remedies Code for filing and perpetuating a frivolous and groundless cause of action”.

Additionally, WorldPeace filed in his Sixth Counterclaim which states, in its entirety:

“WorldPeace would show the court that each complaint should be considered separately such that sanctions should be awarded on each frivolous and groundless grievance as opposed to the entire lawsuit.”

ELEMENTS AS TO WHICH RESPONDENT HAS NO EVIDENCE AS TO COUNTERCLAIMS REGARDING STATE BAR’S VIOLATION OF WORLDPEACE’S EQUAL RIGHTS

Although the court previously granted Counterdefendant’s Summary Judgment upon Respondent’s Second Amended Counterclaim alleging violation of Rule 13 Tex. R. Civ. P and Sections 9 and 10 of the Texas Civil Practice and Remedies Code, in order to permit the Court to consider any new claim under these rules which may be implied in Respondent’s Sixth Amended Counterclaim, the following analysis is provided again:

An essential element which must be proved for a recovery under Rule 13, T.R.C.P. is that a pleading signed by a party or attorney is “groundless and brought in bad faith or groundless and brought for the purpose of harassment.”

Groundless is defined by Rule 13 T.R.C.P. as follows: “’Groundless’ for purposes of this rule means no basis in law or fact and not warranted by good faith argument for the extension, modification or reversal of existing law.”

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have signed an instrument with no basis in law.

> The additional five grievances filed by the Commission on November 15, 2002, was a violation of Rule 3.01 TRDP and was therefore without basis in law. Further, at the time of trial Dawn Miller, Leigh Arnemann, and J.G. Molleston knew the Collins complaint was bared by res judicata.

> This is more than a scintilla of evidence to support this element of Rule 13 Sanctions.

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have signed and instrument with no basis in fact.

> The additional five grievances filed by the Commission on November 15, 2002, was a violation of Rule 3.01 TRDP and was therefore without basis in fact. Further, at the time of trial Dawn Miller, Leigh Arnemann, and J.G. Molleston knew the Collins suit was bared by res judicata.

> This is more than a scintilla of evidence to support this element of Rule 13 Sanctions.

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have signed an instrument not warranted by good faith argument for the extension, modification or reversal of existing law.

> The additional five grievances filed by the Commission on November 15, 2002, was a violation of Rule 3.01 TRDP and was not warranted by a good faith argument for the extension, modification or reversal of existing law. Further, at the time of filing, Dawn Miller, Leigh Arnemann, and J.G. Molleston knew the Collins suit was bared by res judicata; a core principle of the common law.

> This is more than a scintilla of evidence to support this element of Rule 13 Sanctions.

SUMMARY WITH REGARDS TO RULE 13 TRCP

> WorldPeace would show the court that the elements of Rule 13 Sanctions are 1) groundless and brought in bad faith and 2) groundless and brought for purposes of harassment.

> The Commission for Lawyer Discipline has only addressed the elements of groundless part of Rule 13 Sanctions and not the bad faith and harassment elements.

> There was no basis in law or fact for the Commission to add additional complainants to the original disciplinary petition outside Rule 3.01 TRDP nor to file a complaint that is barred by res judicata. WorldPeace has produced more than a scintilla of evidence to prove the elements of groundless per Rule 13 TRCP.

> Therefore, the Commission for Lawyer Discipline’s Motion for No-Evidence Summary Judgment on Rule 13 Sanctions must be denied.

Sections 9 and 10 of the Texas Civil Practice and Remedies Code mirror Rule 13 T.R.C.P. Elements required by Sections 9 and 10 of the Texas Civil Practice and Remedies code include:

1. Signing a pleading which is groundless and brought in bad faith.

> Texas Statutes and Code § 9.011 Signing of Pleadings: 9.011 The signing of a pleading as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory’s best knowledge, information, and belief, formed after reasonable inquiry, the pleading is not: (1) groundless and brought in bad faith.

2. Signing a pleading which is groundless and brought for the purpose of harassment.

3. Signing a pleading which is groundless and interposed for any improper purpose, such as to cause unnecessary delay or needless increase in the cost of litigation.

> * 3(a) The following element was not pled by the Commission and therefore was not adjudicated making the court’s August 27, 2003, Judgment for Disbarment interlocutory.

> Texas Statutes and Code § 10.001 Signing of Pleadings and Motions: 10.001 The signing of a pleading as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory’s best knowledge, information, and belief, formed after reasonable inquiry: (1) the pleading or motion is not being presented for any improper purpose, including to harass or to cause unnecessary delay or needless increase in the cost of litigation.

4. Signing a pleading not warranted by existing law or by a non-frivolous argument for the extension, modification or reversal of existing law or the establishment of new law.

> Texas Statutes and Code § 10.001 Signing of Pleadings and Motions: 10.001 The signing of a pleading as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory’s best knowledge, information, and belief, formed after reasonable inquiry: (2) each claim, defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

5. Signing a pleading in which allegations and factual contentions lack evidentiary support or are unlikely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

> Texas Statutes and Code § 10.001 Signing of Pleadings and Motions: 10.001 The signing of a pleading as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory’s best knowledge, information, and belief, formed after reasonable inquiry: (3) each allegation or other factual contention in the pleading or motion has evidentiary support or, for a specifically identified allegation or factual contention, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

6. Placing denials in pleadings or motions which are not warranted on the evidence.

> Texas Statutes and Code § 10.001 Signing of Pleadings and Motions: 10.001 The signing of a pleading as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory’s best knowledge, information, and belief, formed after reasonable inquiry: (4) each denial in the pleading or motion of a factual contention is warranted on the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.

Section 9.001(3) of the Texas Civil Practice and Remedies Code states, “(3) ‘Groundless’ means:

A. no basis in fact; or

B. not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.

(4) “Pleading” includes a motion.

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have signed a pleading with no basis in law.

> * No basis in law is not an element of Chapter 9 and 10 TCP & RC.

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have signed a pleading with no basis in fact.

> The additional five grievances filed by the Commission on November 15, 2002, was a violation of Rule 3.01 TRDP and was therefore without basis in fact. Further, at the time of filing Dawn Miller, Leigh Arnemann, and J.G. Molleston knew the Collins suit was bared by res judicata and had no basis in fact.

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have signed a pleading not warranted by good faith argument for the extension, modification or reversal of existing law.

> The additional five grievances filed by the Commission on November 15, 2002, was a violation of Rule 3.01 TRDP and was therefore not warranted by good faith argument for the extension, modification or reversal of existing law. Further, at the time of filing Dawn Miller, Leigh Arnemann, and J.G. Molleston knew the Collins suit was bared by res judicata and not warranted by good faith argument for the extension, modification or reversal of existing law.

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have signed a pleading for the purpose of harassment.

> The additional five grievances filed by the Commission on November 15, 2002, was a violation of Rule 3.01 TRDP and was therefore groundless and brought for the purpose of harassment. Further, at the time of filing Dawn Miller, Leigh Arnemann, and J.G. Molleston knew the Collins suit was bared by res judicata and groundless and brought for the purpose of harassment.

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have signed a pleading for any improper purpose.

> The additional five grievances filed by the Commission on November 15, 2002, was a violation of Rule 3.01 TRDP and was therefore for an improper purpose. Further, at the time of filing Dawn Miller, Leigh Arnemann, and J.G. Molleston knew the Collins suit was bared by res judicata and was therefore for an improper purpose.

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have signed a pleading in which allegations and factual contentions lack evidentiary support or are unlikely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

> * This element was wrongly entered by the Commission. It is the 10.001(3) element and should be 10.001(1) which was not pled and therefore was not adjudicated making the court’s August 27, 2003, Judgment for Disbarment interlocutory.

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have signed a pleading not warranted by existing law or by a non-frivolous argument for the extension, modification or reversal of existing law or the establishment of new law.

> Texas Statutes and Code § 10.001 Signing of Pleadings and Motions: 10.001 The signing of a pleading as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory’s best knowledge, information, and belief, formed after reasonable inquiry: (2) each claim, defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

> The additional five grievances filed by the Commission on November 15, 2002, was a violation of Rule 3.01 TRDP and was therefore defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. Further, at the time of filing Dawn Miller, Leigh Arnemann, and J.G. Molleston knew the Collins suit was bared by res judicata and defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann a pleading in which allegations and factual contentions lack evidentiary support or are unlikely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

> Texas Statutes and Code § 10.001 Signing of Pleadings and Motions: 10.001 The signing of a pleading as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory’s best knowledge, information, and belief, formed after reasonable inquiry: (3) each allegation or other factual contention in the pleading or motion has evidentiary support or, for a specifically identified allegation or factual contention, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

> The additional five grievances filed by the Commission on November 15, 2002, was a violation of Rule 3.01 TRDP and was therefore each allegation or other factual contention in the pleading or motion has evidentiary support or, for a specifically identified allegation or factual contention, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. Further, at the time of filing Dawn Miller, Leigh Arnemann, and J.G. Molleston knew the Collins suit was bared by res judicata and each allegation or other factual contention in the pleading or motion has evidentiary support or, for a specifically identified allegation or factual contention, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have placed denials in pleadings or motions which are not warranted on the evidence.

> Texas Statutes and Code § 10.001 Signing of Pleadings and Motions: 10.001 The signing of a pleading as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory’s best knowledge, information, and belief, formed after reasonable inquiry: (4) each denial in the pleading or motion of a factual contention is warranted on the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.

> The additional five grievances filed by the Commission on November 15, 2002, was a violation of Rule 3.01 TRDP and was therefore each denial in the pleading or motion of a factual contention is warranted on the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief. Further, at the time of filing Dawn Miller, Leigh Arnemann, and J.G. Molleston knew the Collins suit was bared by res judicata and each denial in the pleading or motion of a factual contention is warranted on the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.

SUMMARY

> Not only is there evidence of each element of Rule 13 TRCP and Chapter 9 & 10 TCP & RC violations, but the Commission did not plead several elements of Rule 13 and Chapter 9 & 10 and as to these unpled elements the courts August 27, 2003, Judgment for Disbarment is interlocutory.

B. COUNTERCLAIMS REGARDING STATE BAR’S VIOLATION OF RESPONDENT’S EQUAL RIGHTS

WorldPeace filed in his Sixth Amended Counterclaim which states, in pertinent part:

On February 11, 2003, the State Bar via the Commission for Lawyer Discipline sent to WorldPeace a supplement to WorldPeace’s request for discovery. The supplement consisted of four articles from the Houston Chronicle that were written about WorldPeace when he ran for governor of Texas in 2001 and 2002. A fifth article is about WorldPeace suing the minister and others of his church; an undeniable religious matter unrelated to this lawsuit.

There [sic] articles have nothing to do with any of the six complainants who are in this lawsuit. Four articles seem to hold a common theme about race which was a high profile issue in the 2002 Texas Governor’s race. There are no allegation in this lawsuit by the Commission that even remotely relate to these articles.

“The implication is that the Commission filed suit against WorldPeace for his political activism.

> Actually this is a Constitutional free speech cause of action couched in terms of political activism.

“In addition, to the above articles the Commission also included WorldPeace’s web page regarding his present run for Mayor of Houston. Within the WorldPeace for Mayor Page, there is a reference to WorldPeace’s religious beliefs and there is a link from that page to the WorldPeace Peace Page where WorldPeace has extensive writings about religion and the interrelationship between religion and politics and the law.

“There can be little doubt that the Commission has no other reason to bring WorldPeace’s web pages into evidence in this case for any reason except to attempt to try WorldPeace’s religious and political beliefs to the jury.

“It is a violation of Article I, Section 3 of the Texas Constitution to discriminate based on religious beliefs.

“WorldPeace would show the court that when an opponent in any lawsuit begins to personally attack the opposing lawyer or party, it is because there is no basis for the underlying case.

“WorldPeace has filed for Rule 13 sanctions but now has undeniable evidence that the State Bar maliciously filed suit on WorldPeace by way of five frivolous complaints and one complaint that had already been tried.

“WorldPeace sues the State Bar for religious discrimination.”

ELEMENTS AS TO WHICH RESPONDENT HAS NO EVIDENCE AS TO COUNTERCLAIMS REGARDING STATE BAR’S VIOLATION OF WORLDPEACE’S EQUAL RIGHTS

> The Commission does not state the elements of a cause of action for constitutional religious or political discrimination. Political discrimination is actually a violation of free speech.

> Therefore, the Commission’s No-evidence Summary Judgment is not in conformity with the actual Rule 166a(i) TRCP requirements that the elements of a cause of action which are not supported by the evidence must be listed in the Commission’s Second Amended Motion for No-evidence Summary Judgment. No specific element is alleged by WorldPeace to be supported by the evidence because no elements of religious and political discrimination are listed by the Commission in its Motion for No-evidence Summary Judgment.

> The Commission’s Second Amended Motion for No-evidence Summary Judgment regarding this cause of action is defective and must be denied.

There is no evidence that “The implication is that the Commission filed suit against WorldPeace for his political activism.”

> The Commission did not specify what elements of political activists or free speech to which WorldPeace had no evidence.

There is no evidence that “There can be little doubt that the Commission has no other reason to bring WorldPeace’s web pages into evidence in this case for any reason except to attempt to try WorldPeace’s religious and political beliefs to the jury.”

> The Commission did not specify any elements as required by Rule 166a(i) but is simply challenging facts alleged by WorldPeace with out any reference to any element.

There is no evidence that any CounterDefendant discriminated against Respondent based upon his religious beliefs in violation of Article I, Section 3 of the Texas Constitution.

> The Commission did not specify any elements as required by Rule 166a(i) but is simply challenging facts alleged by WorldPeace with out any reference to any element.

There is no evidence that any CounterDefendant personally attacked Respondent.

> The Commission did not specify any elements as required by Rule 166a(i) but is simply challenging facts alleged by WorldPeace with out any reference to any element.

There is no evidence that the State Bar maliciously filed suit on Respondent by way of five frivolous complaints and one complainant that had already been tried.

> The Commission did not specify any elements as required by Rule 166a(i) but is simply challenging facts alleged by WorldPeace with out any reference to any element.

In the case of City of Beaumont v. Boullion, 896 S.W. 2d 413 (Tex. 1995), the court, in considering claims of damage for free speech violations held that:

“Because Texas has no provision comparable to § 1983, the first questions must be answered by determining whether a private right of action for damages can be implied under the Texas Constitution. We hold there is no implied private right of action for damages arising under the free speech and free assembly sections of the Texas Constitution. Id. at 147.

Likewise, the case of Favero v. Huntsville Independent School Dist. 939 F.Supp. 1281 (S.D.Tex.,1996), after reviewing Texas Courts of Appeals cases extending the rule of Bouillion to other constitutional claims, held that there is no implied right to cause of action for damages for violation of Texas Constitutional Provisions prohibiting religious discrimination.

Thus, Respondent is limited in his claims for constitutional violations to the cause of action provided by 42 U.S.C. 1983.

> Wrong. WorldPeace has a cause of action for injunctive relief.

> Also, this is an attempt at a general demurrer by the Commission which is not allowed per Rule 90 TRCP.

> In general, it is improper to grant a summary judgment on a deficient pleading’s failure to state a cause of action when the deficiency can be attacked through a special exception. Texas Dep’t of Corrections v. Herring, 513 S.W. 2d 6, 9-10 (Tex. 1974). To grant summary judgment on that ground would revive the general demurrer discarded by rule 90 of the Texas Rules of Civil Procedure. Id. at 10; see also In re B.I.V., 870 S.W. 2d 12, 13 (Tex. 1994). Before a court may grant a “no cause of action” summary judgment, the nonmovant must be given adequate opportunity to plead a viable cause of action. Pietila v. Crites, 851 S. W. 2d 185, 186 n. 2 (Tex. 1993); Massey v. Armco Steel Co., 652 S.W. 2d 932, 934 (Tex. 1983).

Lewis v. Skippy’s Mistake Bar, 944 S.W. 2d 1, 1 (Tex. App. – Fort Worth 1996)

“A cause of action under § 1983 involves two essential elements: (1) the conduct complained of was committed by a person acting under a color of state law, and (2) the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or the laws of the United States.”

Robles v. City of Fort Worth, 51 S.W. 3d 436 (Tex.App. –Fort Worth, 2001).

> This section along with the section regarding Rule 13 TRCP and Chapter 9 and 10 TCP & RC above proves the Commission understands the Rule 166a(i) TRCP mandate to list the elements of a cause of action for which there is no evidence. However, because WorldPeace did not plead § 1983, this section is irrelevant.

There is no evidence that a person acted under color of state law.

> Irrelevant, because WorldPeace did not plead § 1983.

There is no evidence that any conduct committed by a person acting under color of state law deprived Respondent of rights, privileges, or immunities secured by the Constitution or laws of the United States.

> Irrelevant, because WorldPeace did not plead § 1983.

C. COUNTERCLAIMS REGARDING ATTORNEY FEES

WorldPeace filed his Sixth Counterclaim which states, in pertinent part:

“Since the State Bar per the TRDP and TDRPC claim they can receive attorney fees when none have been incurred, WorldPeace alleges he can as an attorney be awarded attorney fees for the time he had to spend defending himself in this lawsuit.

“It does not matter that WorldPeace is pro se.

“The principal seems to be that time spent by the Commission’s attorney is compensible even through no fees were incurred and it is unjust to allow those fees to the Bar and then deny attorneys fees to the Respondent’s attorney.

ELEMENTS AS TO WHICH RESPONDENT HAS NO EVIDENCE AS TO COUNTERCLAIMS REGARDING ATTORNEYS FEES

Rule 1.06(T)(b), TEXAS RULES OF DISCIPLINARY PROCEDURE “sanction” may include the following additional ancillary requirement: “payment of reasonable attorneys’ fees and all direct expenses associated with the proceedings.

The Commission for Lawyer Discipline is entitled to recover award of reasonable attorney fees in attorney disciplinary proceedings even though lawyers represent the Commision on a pro bono basis. See V.T.C.A., Government Code Title 2, Subtitle G App. A-1.

Rule 1.06(T)(b), TEXAS RULES OF DISCIPLINARY PROCEDURE allows the Commission to receive an award for attorney fees commensurate with reasonable fees charged by a private attorney for comparable work under the circumstances.

There is no evidence that any counterdefendant contractually agreed to pay attorneys fees to Respondent.

> What element does this relate to? And this seems to be repetitive from above.

There is no evidence that Respondent has prevailed in a declaratory judgment action against any Counterclaimant.

> What element does this relate to?

There is no evidence that Respondent has prevailed against any ConterDefendant in any action supporting attorneys fees under the Texas family code.

> What element does this relate to?

Although the court previously granted Counterdefendant’s Summary Judgment upon Respondent’s Second Amended Counterclaim alleging violation of Rule 13 Tex. R. Civ. P. and Sections 9 and 10 of the Texas Civil Practice and Remedies Code, in order to permit the Court to consider any new claim under these rules which may be implied in Respondent’s Sixth Amended Counterclaim, the following analysis is provided again:

> What element does this relate to and this seems to be repetitive from above?

“An essential element which must be proved for a recovery under Rule 13, T.R.C.P. is that an pleading signed by a party or attorney is “groundless and brought in bad faith or groundless and brought for the purpose of harassment.”

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have signed an instrument with no basis in law.

> The additional five grievances filed by the Commission on November 15, 2002, was a violation of Rule 3.01 TRDP and was therefore without basis in law. Further, at the time of filing Dawn Miller, Leigh Arnemann, and J.G. Molleston knew the Collins suit was bared by res judicata and was therefore without basis in law.

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have signed an instrument with no basis in fact.

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have signed an instrument with not warranted by good faith argument for the extension, modification or reversal of existing law.

> The additional five grievances filed by the Commission on November 15, 2002, was a violation of Rule 3.01 TRDP and was therefore not warranted by good faith argument for the extension, modification or reversal of existing law. Further, at the time of filing Dawn Miller, Leigh Arnemann, and J.G. Molleston knew the Collins suit was bared by res judicata and was therefore not warranted by good faith argument for the extension, modification or reversal of existing law.

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> This section is repetitive.

Sections 9 and 10 of the Texas Civil Practice and Remedies Code mirror Rule 13 T.R.C.P. Elements required by Sections 9 and 10 of the Texas Civil Practice and Remedies code include:

1. Signing a pleading which is groundless and brought in bad faith.

2. Signing a pleading which is groundless and brought for the purpose of harassment.

3. Signing a pleading which is groundless and interposed for any improper purpose, such as to cause unnecessary delay or needless increase in the cost of litigation.

4. Signing a pleading not warranted by existing law or by a non-frivolous argument for the extension, modification or reversal of existing law or the establishment of new law.

6. Placing denials in pleadings or motions which are not warranted on the evidence.

Section 9.001(3) of the Texas Civil Practice and Remedies Code states, “(3) ‘Groundless’ means:

A. basis in fact; or

B. not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.

(4) “Pleading” includes a motion.

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have signed a pleading with no basis in law.

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have signed a pleading with no basis in fact.

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have signed a pleading no warranted by good faith argument for the extension, modification or reversal of existing law.

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have signed a pleading for the purpose of harassment.

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have signed a pleading for nay improper purpose.

There is no evidence that Dawn Miller, J.G. Molleston or Leigh Arnemann have placed denials in pleadings or motions which are not warranted on the evidence.

******************************************************************************

There is no evidence that Respondent can prevail under any theory of law which supports an award of attorneys fees to an opposing party.

> There is another general demurrer like the statement above that Respondent has no cause of action other than 42 U.S.C.A. § 1983.

Lewis v. Skippy’s Mistake Bar, 944 S.W. 2d 1, 1 (Tex. App. – Fort Worth 1996)

That being said, attorney fees as Rule 13 TRCP and Chapter 9 and 10 TCP & PC sanction are supported due to the additional five grievances filed by the Commission on November 15, 2002, which was a violation of Rule 3.01 TRDP and at the time of trial Dawn Miller, Leigh Arnemann, and J.G. Molleston knew the Collins complaint was bared by res judicata.

D. COUNTERCLAIMS REGARDING UNCONSTITUTIONAL – DUE PROCESS

WorldPeace filed in his Sixth Counterclaim which states, in its entirety:

“WorldPeace would allege that the State Bar in the complaints of Collins, Apodaca and Lynch recommended a sanction of public reprimand for WorldPeace. WorldPeace would show the court that his rights of due process were violated under both the United States and Texas Constitution because the filing of a lawsuit against WorldPeace places into the permanent public record a public reprimand.

“In other words, the State Bar has the power to impose a sanction of private or public reprimand on WorldPeace without WorldPeace being given any real alternative. WorldPeace would show the court that even the most frivolous of grievances can put pressure on an attorney to accept a private or public reprimand even when it is not deserved because the alternative is a trial de novo in the District Court which amounts to a public reprimand.

“WorldPeace would also show the court that the alternative to a trial de novo is a Evidentiary Hearing where the attorney has less rights than he does in a civil trial. No one can doubt that an Evidentiary Hearing is little more than the reinforcement of the State Bar grievance process.

“WorldPeace would show the court that the only real option for an attorney to get a fair hearing in a grievance is a trial de novo in the civil court where he can level the playing field between himself and the State Bar.

ELEMENTS AS TO WHICH RESPONDENT HAS NO EVIDENCE AS TO COUNTERCLIMS REGARDING UNCONSTITUTIONAL – DUE PROCESS

There is no evidence that Respondent’s rights of due process were violated under both the United States and Texas Constitution because the filing of a lawsuit against WorldPeace places into the permanent public record a public reprimand.

The basic elements of due process are notice, hearing, and an impartial trier of facts. See City of Houston v. Fore, 412 S.W. 2d 35 (Tex. 1967).

> The Commission has not listed the elements of due process as is required by Rule 166a(i) TRCP. What element of due process does the above relate to?

There is no evidence that the Bar had the power to impose a sanction of public reprimand on WorldPeace and he was not given any real alternative.

> What element of due process does this relate to?

There is no evidence that even the most frivolous of grievances can put pressure on an attorney to accept a public reprimand even when it is not deserved because the alternative is a Trial de Novo in the District Court which amounts to a public reprimand.

> What element of due process does this relate to?

Respondent’s statement that, “WorldPeace would show the court that the only real option for an attorney to get a fair hearing in a grievance is a trial de novo in the civil court where he can level the playing field between himself and the State Bar.” Is a judicial admission and thus negates the existence of evidence of the factual allegations described in the three paragraphs immediately above this one.

> What element of due process does this relate to?

There is no evidence that an attorney in an Evidentiary Hearing has less rights than he does in a civil trial.

> What element of due process does this relate to?

There is no evidence that an Evidentiary Hearing is little more than the reinforcement of the State Bar grievance process and the overall bureaucracy.

> What element of due process does this relate to?

As discussed under item B above, Respondent’s only constitutional claim would be under 42 U.S.C. 1983.

> No. Injunctive Relief can be had outside § 1983.

There is no evidence that a person acted under color of state law regarding Respondent’s claim of due process violations.

> What element of due process does this relate to?

E. COUNTERCLAIMS REGARDING UNCONSTITUTIONAL RANGE OF PUNISHMENT

WorldPeace filed in his Sixth Counterclaim which states, in its entirety:

“WorldPeace would show the court that the range of punishment which allows disbarment for the most minor acts of Professional Misconduct, such that failing to return one phone call, can result in disbarment and is therefore arbitrary and therefore unconstitutional.

“WorldPeace would show the court that virtually all lawsuits have a range of punishment for damages in civil cases to a definite strata of punishments in the criminal cases such that the punishment fits the crime.

“The grievance process is a quasi criminal procedure. The grievance process gives a Fifth Amendment warning at the grievance hearings: they are related to grand jury proceedings.

“Therefore, there should be a range of punishment applied to various violations.

ELEMENTS AS TO WHICH RESPONDENT HAS NO EVIDENCE AS TO COUNTERCLAIMS REGARDING UNCONSTITUTIONAL RANGE OF PUNISHMENT

As discussed under item B above, Respondent’s only constitutional claim would be under 42 U.S.C. 1983.

> This is a repeat at the same general demurrer as above.

> Irrelevant, § 1983 was not pled by WorldPeace and it is not true because WorldPeace has a cause of action for injunctive relief as was plead in his Seventh Amended Petition and Counterclaim.

There is no evidence that a person acted under color of state law regarding an alleged unconstitutional range of punishment.

> Irrelevant, § 1983 was not pled by WorldPeace and WorldPeace does have a cause of action for injunctive relief.

> Irrelevant, § 1983 was not plead by WorldPeace and WorldPeace does have a cause of action for injunctive relief.

The range of sanction provided for in Lawyer Discipline Cases is subject to the factor set forth in Rule 3.10 TRDP and to an abuse of discretion standard.

In the case of Love v. State Bar of Texas 982 S.W. 2d 939 (Tex.App. – Houston [1 Dist.], 1998) the court held:

“A trial court has broad discretion to determine the consequences of professional misconduct. State Bar of Texas v. Kilpatrick, 874 S.W.2d 656, 659 (Tex.1994). However, the judgment of a trial court in a disciplinary proceeding may be so light or heavy as to amount to an abuse of discretion. Id. The guiding rules and principles to determine the appropriate sanction for an attorney guilty of professional misconduct are set out in Texas Rule of Disciplinary Procedure 3.10. TEX.R. DISCIPLINARY P. 3.10. To determine the appropriate sanction, the trial court must consider the relevant factors set forth in Rule 3.10, including: (1) the nature and degree of the misconduct; (2) loss or damage to clients; (3) damage to the profession, assurance that others will be insulated from the type of misconduct found; (4) profit to the attorney; (5) avoidance of repetition; (6) deterrent effect on others; (7) maintenance of respect for the legal profession; (8) conduct of the attorney during Committee action; (9) trial of the cause; and (10) other relevant evidence concerning attorney's personal and professional background. Id. We will only reverse the trial court's decision if an abuse of discretion is shown. A trial court abuses its discretion when it acts without reference to any guiding rules and principles and the test is whether the trial court's act was arbitrary and unreasonable. 982 S.W. 2d 939,944.”

There is no evidence that the abuse of discretion standard for attorney sanctions under Texas case law and the Rules of Disciplinary Procedure are unconstitutional.

> The Commission did not list the elements of WorldPeace’s cause of action for unconstitutional range of punishment as is mandated by Rule 166a(i) TRCP.

Further, Judge Fry had no jurisdiction to hear the five additional grievances per Rule 3.01 TRDP and did not have jurisdiction of the Collins grievance because it was barred by res judicata.

F. COUNTERCLAIMS REGARDING UNCONSTITUTIONAL – THE GRIEVANCE PROCESS IS OPPRESSIVE, ARBITRARY AND CAPRICIOUS

WorldPeace filed in his Sixth Counterclaim which states, in its entirety:

“WorldPeace would show that the grievance process is unconstitutional due to its oppressive, arbitrary and capriciousness as exemplified by: 1) Attorney respondents in the grievance process are subject to being sanctioned for revealing any confidences in the process but if the complainant non-attorney reveals those confidences there is no sanctions applicable to the complainant, 2) There is a conflict in laws such that confidences that are prohibited from being revealed can be revealed in a pleading in a lawsuit without repercussions: 3) The senior investigator can designate intolerant grievance panels to hear grievances against attorneys the investigator wants sanctioned; 4) the offer of a private or public reprimand by the grievance committee can be forced upon an attorney because the filing of a civil suit against the attorney acts as a public reprimand thus making a settlement offer of a private or public reprimand an empty offer; 5) the commission can enforce double sanctions through Rule 8.04 (a)(1) which boosts any violation of the TDRPC; 6) the attorney is intimidated and coerced into presenting to the grievance panel evidence that will violate his rights against self incrimination - all demands for information from the State Bar stating that the information can be forwarded to law enforcement and all grievance hearings open with an admonition to the attorney about his rights against self incrimination; 7) the grievance process can be abused to influence legitimate attorney client fee disputes ; 8) the Commission can seek attorney fees even when it incurs none; 9) attorney fees can be calculated on the rates charged by private attorneys when the State Bar’s in house attorneys make about 20% of the private rate - the best evidence of reasonable attorney fees is what the State Bar attorneys are paid; 10) attorney fees can be charged for attorneys who are employed by the State Bar and no proof is required to be offered by the State Bar that “but for” the acts of the Respondent, the State Bar would not have employed an attorney; 11) there is no range of punishment that limits the sanctions available to the court in a disciplinary action so not returning one phone call can result in disbarment; there is no standard for which the various judges who hear these matters can use as a guideline. (12) the attorneys for the State Bar are immune from prosecution for their tortious and even criminal acts committed during the course of attempting to sanction an attorney; (13) the most abusive attorneys, like Jim Adler of Houston, can avoid prosecution by becoming members of the grievance panels; (14) the grievance process is so skewed against the respondent attorney that his best strategy is to not cooperate with the State Bar and let the grievance go into a civil lawsuit where the respondent has a level playing field under the law and the TRCP. 15) The process allows for arbitrary application of the TDRPC to attorneys. 16) A pro se Respondent attorney is not allowed attorney fees. 17) The State Bar is allowed to combine grievances into one lawsuit by alleging common violations of the TDRPC even though those violations do not apply to every grievance.

“The solution to all these issues is to disband the grievance process and open the TDRPC to the client in a civil lawsuit. Any other system allows for abuses by the grievance bureaucracy”.

ELEMENTS AS TO WHICH RESPONDENT HAS NO EVIDENCE REGARDING UNCONSTITUTIONAL – THE GRIEVANCE PROCESS IS OPPRESSIVE, ARBITRARY AND CAPRICIOUS

> The Commission did not list the elements of a constitutional counterclaim for oppressive, arbitrary and capricious acts as in required by Rule 166a(i) TRCP.

There is no evidence that attorney respondents in the grievance process are subject to being sanctioned for revealing any confidences in the process but if the complainant non-attorney reveals those confidences there is no sanctions applicable to the complaint.

> What element does this relate to?

There is no evidence that there is a conflict in laws such that confidences that are prohibited from being revealed can be revealed in a pleading in a lawsuit without repercussions.

> What element does this relate to?

There is no evidence that the senior investigator can designate intolerant grievance panels to hear grievances against attorneys the investigator wants sanctioned.

> What element does this relate to?

There is no evidence that the offer of a private or public reprimand by the grievance committee can be forced upon an attorney because the filing of a civil suit against the attorney acts as a public reprimand thus making a settlement offer of a private or public reprimand an empty offer.

> What element does this relate to?

There is no evidence that the commission can enforce double sanctions through Rule 8.04(a)(1) which boosts any violation of the TDRPC.

> What element does this relate to?

There is no evidence that the attorney is intimidated and coerced into presenting to the grievance panel evidence that will violate his rights against self incrimination.

> What element does this relate to?

There is no evidence that the grievance process can be abused to influence legitimate attorney client fee disputes.

> What element does this relate to?

There is no evidence that the Commission can seek attorney fees even when it incurs none.

> What element does this relate to?

There is no evidence that attorney fees can be calculated on the rates charged by private attorneys when the State Bar’s in house attorneys make about 20% of the private rate – the best evidence of attorney fees is what the State Bar attorneys are paid.

> What element does this relate to?

There is no evidence that attorney fees can be charged for attorneys who are employed by the State Bar and no proof is required to be offered by the State Bar that “but for” the acts of the Respondent, the State Bar would not have employed and attorney.

> What element does this relate to?

There is no evidence that there is no range of punishment that limits the sanctions available to the court in a disciplinary action so not returning one phone call can result in disbarment.

> What element does this relate to?

There is no evidence that there is not standard for which the various judges who hear these matters can use as a guideline.

> What element does this relate to?

There is no evidence that the most abusive attorneys, like Jim Adler of Houston, can avoid prosecution by becoming members of the grievance panels.

> What element does this relate to?

There is no evidence that the grievance process is so skewed against the respondent attorney that his best strategy is to not cooperate with the State Bar and let the matter go into a civil lawsuit where the respondent has an even playing field under the law and the TRCP.

> What element does this relate to?

There is no evidence that the process allows for arbitrary application of the TDRPC to attorneys.

> What element does this relate to?

There is no evidence that the solution to all these issues is to disband the grievance process and open the TDRPC to the client in a civil lawsuit.

> What element does this relate to?

There is no evidence that any other system allows for abuses by the grievance bureaucracy.

> What element does this relate to?

As discussed under item B above, Respondent’s only constitutional claim would be under 42 U.S.C. 1983.

> Again not true. There is injunctive relief and this is a repeat of a general demurrer.

There is no evidence that a person acted under color of state law.

> Irrelevant. WorldPeace did not sue under § 1983.

G. COUNTERCLAIM REGARDING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

WorldPeace filed in his Sixth Counterclaim which states, in its entirety:

“WorldPeace would show the court that the entire grievance process as applied to WorldPeace in this lawsuit has been abusive, malicious, and aggressive. Further, WorldPeace would show the court that the specific grievances have no basis in fact or law and therefore were frivolous and groundless.

“WorldPeace would show the court that the State Bar has a history of illegally filing a lawsuit against WorldPeace.

“Therefore, WorldPeace sues the State Bar for Intentional Infliction of Emotional Distress and sues for damages equal to the value of his legal fees in this lawsuit.

There is no evidence that the entire grievance process as applied to WorldPeace in this lawsuit has been abusive, malicious, and aggressive.

> What element does this relate to?

There is no evidence that the specific grievances have no basis in fact or law and therefore were frivolous and groundless.

> What element does this relate to?

There is no evidence that the State Bar has a history of illegally filing a lawsuit against WorldPeace.

> What element does this relate to?

> Dawn Miller, attorney for the State Bar did file a disciplinary petition against WorldPeace in 1993 that was barred by the statue of limitation and was dismissed with prejudice.

There is no evidence that WorldPeace is entitled to damages equal to the value of his legal fees in this lawsuit.

> What element does this relate to?

The elements of the tort of intentional infliction of emotional distress are set forth in the case of Morgan v. Anthon, 27 S.W. 3d 928 (Tex. 2000)

“We have held that to recover damages for intentional infliction of emotional distress, a plaintiff must establish that "(1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe." Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). 27 S.W. 2d 928, 929.

> In regards to Intentional Infliction of Emotional Distress the Commission did not list the elements of the cause of action per Rule 166a(i). The problem is that the court refused to rule whether this cause of action was severed or not. The court said it was only going to try the Rule violations under the main cause of action.

There is no evidence that any counterdefendant acted intentionally or recklessly with regard to creating emotional distress in the Respondent.

> Molleston, Arnemann, and Miller did not follow Rule 3.01 TRDP. The additional five grievances filed by the Commission on November 15, 2002, was a violation of Rule 3.01 TRDP and therefore acted intentionally and recklessly without basis. Further, at the time of filing Dawn Miller, Leigh Arnemann, and J.G. Molleston knew the Collins suit was bared by res judicata and therefore acted intentionally and recklessly.

There is no evidence that any counterdefendant’s conduct was extreme or outrageous.

> Molleston, Arnemann, and Miller, attorneys for the State Bar, did not follow Rule 3.01 TRDP. The additional five grievances filed by the Commission on November 15, 2002, was a violation of Rule 3.01 TRDP and was therefore extreme and outrageous. Further, at the time of filing Dawn Miller, Leigh Arnemann, and J.G. Molleston knew the Collins suit was bared by res judicata and was therefore extreme and outrageous.

There is no evidence that any counterdefendant’s actions caused Respondent emotional distress.

> Being sued by the State Bar is stressful and any attorney would testify that it would be so.

> Molleston, Arnemann, and Miller did not follow Rule 3.01 TRDP. The additional five grievances filed by the Commission on November 15, 2002, was a violation of Rule 3.01 TRDP and therefore created emotional distress in the form of potential loss of earnings. Further, at the time of filing Dawn Miller, Leigh Arnemann, and J.G. Molleston knew the Collins suit was bared by res judicata and therefore created emotional distress in the form of potential loss of earnings.

There is no evidence that the respondent suffered severe emotional distress.

> Molleston, Arnemann, and Miller did not follow Rule 3.01 TRDP. The additional five grievances filed by the Commission on November 15, 2002, was a violation of Rule 3.01 TRDP and and therefore created emotional distress in the form of potential loss of earnings. Further, at the time of filing Dawn Miller, Leigh Arnemann, and J.G. Molleston knew the Collins suit was bared by res judicata and therefore created emotional distress in the form of potential loss of earnings.

ELEMENTS AS TO WHICH RESPONDENT HAS NO EVIDENCE REGARDING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

******************************************************************************

> The following is repetitive from above.

There is no evidence that the entire grievance process as applied to WorldPeace in this lawsuit has been abusive, malicious, and aggressive.

There is no evidence that the specific grievances have no basis in fact or law and therefore were frivolous and groundless.

There is no evidence that the State Bar has a history of illegally filing a lawsuit against WorldPeace.

There is no evidence that WorldPeace is entitled to damages equal to the value of his legal fees in this lawsuit.

The elements of the tort of intentional infliction of emotional distress are set forth in the case of Morgan v. Anthon, 27 S.W. 3d 928 (Tex. 2000)

There is no evidence that any counterdefendant acted intentionally or recklessly with regard to creating emotional distress in the Respondent.

There is no evidence that any counterdefendant’s conduct was extreme or outrageous.

There is no evidence that any counterdefendant’s actions caused Respondent emotional distress.

There is no evidence that the respondent suffered severe emotional distress.

******************************************************************************

IMMUNITY

The CFLD, Dawn Miller, J.G. Molleston and Leigh Arnemann assert the defense of governmental and judicial immunity. Dawn Miller is the Chief Disciplinary Counsel. J.G. Molleston and Leigh Arnemann are assistant disciplinary counsels and staff of the Chief Disciplinary Counsel.

> The constitution is the supreme law of the land and the TRDP cannot have immunity from injunctive relief for their unconstitutional acts against WorldPeace.

> Further, this is a defense of the commission and is not appropriate for a Rule 166a(i) TRCP Motion for Summary Judgment. This is a Rule 166a(c) TRCP Motion for Summary Judgment pleading.

Texas Government Code § 81.011 states, “General Powers: (a) The state bar is a public corporation and an administrative agency of the judicial department of government.

Texas Government Code § 813071 states in pertinent part:

“Disciplinary Jurisdiction. Each attorney admitted to practice in this state and each attorney specially admitted by a court of this state for a particular proceeding is subject to the disciplinary and disability jurisdiction of the supreme court and the Commission for Lawyer Discipline, a committee of the state bar.”

Rule 15.11, Tex. R. Disc. P. states:

“Immunity: Communications to the Chief Disciplinary Counse or grievance committee relating to attorney misconduct or disability and testimony given at any disciplinary proceeding shall be absolutely privileged and no lawsuit predicated thereon may be instituted against any complainant or witness. All members of the Commission, the Chief Disciplinary Counsel and his or her staff (including Special Assistant Disciplinary Counsel appointed by the Commission and attorneys employed on a contract basis by the Chief Disciplinary Counsel), all members of Committees, all members of the Board of Disciplinary Appeals, all members of the District Disability Committees, and all officers and Directors of the State Bar are immune from suit for any conduct in the course of their official duties. The immunity is absolute and unqualified and extends to all actions at law or in equity.”

State v. Isabell, 127 Tex. 399, 94 S.W. 2d 423 (1936) and Bullock v. Electro Science Investors, Inc., 533 S.W. 2d 892 (Tex. Civ. App. – Austin 1976, no writ) stand for the propostion that the State, including its agencies such as the State Bar, cannot be sued without consent.

In Slavin v. Curry, 574 F.2d 1256, 1266 (5^th Cir. 1978), the 5^th Circuit stated that:

“The members of the grievance committee were Joe Shannon, Jr., the assistant district attorney, Jack Wessler, and Dixon Holman. The district court dismissed the claims against those defendants because Slavin had failed to show facts that would support a denial of equal protection or to show a conspiracy against Slavin. In addition, the district court held that as an arm of the State Supreme Court the members of the grievance committee were protected against suit by judicial immunity. Since we have already determined that Slavin’s allegations were sufficient to state a cause of action, we need only consider whether the grievance committee is entitled to absolute, or judicial, immunity. We find that they are. Under Texas law, “The Grievance Committee is an administrative agency of the judicial department and is the arm of the Supreme Court in the discharge of its professional policing duties.” State v. Sewell, 487, S.W. 2d 716, 719 (Tex. 1972). See also Tex. Rev. Civ. Stat. Ann. art. 320a-1 (Vernon 1973 & Supp. 1978). As agents of the court, the members of the Grievance Committee are entitled to the same immunity that the judges would have if they exercised this function directly. As with Judge Lindsey, in the case above, however, that immunity does not extend to immunity from equitable relief. This portion of the case must also be remanded for additional proceedings to determine whether these defendants participated in a conspiracy and, if so, whether equitable relief is appropriate. (emphasis added)”.

> Molleston’s own cite proves the validity of WorldPeace’s cause of action for injunctive relief.

Additionally, in Bishop v. State Bar of Texas, 791 F.2d 435, 438 (5^th Cir. 1986), the 5^th Circuit has further held as follows:

“Bishop first challenges the district court’s holding that the State Bar of Texas is not a “person” within the meaning of 42 U.S.C. § 1983. This Court, however, has noted that the State Bar of Texas is a state agency such that an action for damages is barred by the eleventh amendment. Krempp v. Dobbs, 775 F.2d 1319, 1321 & n. 1 (5ht Cir. 1985). Thus, plaintiff Bishop cannot recover damages against the State Bar.”

Hernandez v. Hayes, 931 S.W. 2d 648, (Tex. App. – San Antonio 1996) stands for the proposition that quasi-judicial immunity extends to administrative grievance procedures such as the complaint which initiated the grievance against the Respondent.

> WorldPeace per above can sue for injunctive relief.

Petitioner, the Commission For Lawyer Discipline is immune from suit for any damages, costs, expenses and/or attorneys’ fees Respondent has requested based on established immunity.

> WorldPeace is suing for injunctive relief not monetary damages.

In order to defeat a claim of immunity, Respondent must demonstrate that Petitioner has consented to be sued.

Respondent has no evidence that any counterdefendant consented to be sued.

> What element of injunctive relief does this apply to?

CONCLUSION

To defeat CFLD’s No-Evidence Motion for Summary Judgment, Respondent must present evidence on the element of his claims. Moore v. K-mart, 981 S.W. 2d 266 (Tex. App. – San Antonio 1998, writ ref’d). If WorldPeace does not submit competent evidence on all of the essential elements of his claims, then Counterdefendants will be entitled to summary judgment as a matter of law as to the defenses alleged by WorldPeace against that State Bar of Texas.

WORLDPEACE’S CONCLUSION

> WorldPeace created a Bill of Exception on attorneys fees and religious discrimination. Judge Fry heard both at the trial of the Rule violations WorldPeace incorporates those Bills into this response.

The Commission did not specify elements for the majority of WorldPeace’s causes of action as in required by Rule 166a(i) TRCP.

The Commission attempted to assert a general demurrer which is not possible under Rule 90 TRCP.

On the issues where the Commission did specify the elements, WorldPeace presented more than a scintilla of evidence.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Petitioner, the CFLD, moves this Court to Vacate its order of August 27, 2003, granting Petitioner’s Second No-Evidence Motion for Summary Judgment and for such other and further relief at law or in equity as this court deems proper.

Respectfully submitted,

                                                                        __________________________________
                                                                        John WorldPeace
                                                                        TBA No. 21872800
                                                                        2620 Fountain View, Suite 106
                                                                        Houston, Texas   77057
                                                                        Tel: 713-784-7618
                                                                        Fax: 713-784-9063

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing pleading was forwarded to opposing counsel and Judge Fry on November 6, 2003 by fax.

_________________________________ John WorldPeace

NO. 2002-42081

AFFIDAVIT OF JOHN WORLDPEACE

STATE OF TEXAS §

COUNTY OF HARRIS §

BEFORE ME, the undersigned authority, on this day personally appeared John WorldPeace, who being by me first duly sworn, on his oath did depose and state as follows:

“My name is John WorldPeace. I am over the age of eighteen years, have never been convicted of a felony or crime of moral turpitude, and am competent to make this affidavit. I am duly authorized and qualified to make this affidavit. I have personal knowledge of the facts stated herein, and they are true and correct.

The fact that the State Bar submitted parts of my web page to me in response to discovery is evidence that they intended to use said evidence at trial and is evidence that they violated my rights of religious freedom. It is a fact question for the jury as to why the evidence was submitted to WorldPeace.

WorldPeace created a Bill of Exception at trial which proved that the State Bar was manipulating the committees which investigated the grievances against him because the majority of the grievances went to the same committee. Further, Alan Levine, a member of that committee is Jewish and was offended by WorldPeace’s statements regarding his article on Ariel Sharon on his web page.

Further, in the Nash grievance video, Levine was heard to say that she could go out the door and hire any number of legitimate attorneys. The reference is that WorldPeace is not a legitimate attorney and shows an additional bias against WorldPeace that was known by the State Bar. This is a fact question for the jury.

Further, as a Bill of Exception, WorldPeace proved that his grievance for an undeniable violation by McNab Miller of the confidentiality rule was dismissed by the State Bar.

Further, Collins admitted violating the confidentiality rule at trial is not an attorney and so there is not remedy against Collins for the violation and yet WorldPeace can be disbarred for the same. This is a violation of WorldPeace rights of equal protection.

WorldPeace would also show the court that he filed a grievance on J. G. Molleston for lying to this court about adding other complaints to an existing lawsuit and not filing them with the Clerk of the Supreme Court and other undeniable TDRPC violations and the complaint was dismissed by the State Bar because Molleston works for the State Bar.

There is no question but that the State Bar attorneys violated Rule 3.01 of the TRDP by not filing the additional five complaints added to this lawsuit with the clerk of the Supreme Court. This violated WorldPeace rights to due process.

It is a fact that Dawn Miller, attorney for the State Bar in this lawsuit, filed suit against WorldPeace ten years ago after the statute of limitations had run. There is evidence that Dawn Miller’s actions against WorldPeace in the grievance process such as violating Rule 3.01 TRDP is the same as her violation of the statute of limitations ten years ago.

It is a fact that the grievance filed by John Lynch was frivolous in that he never paid WorldPeace to take his case and the jury did not find against WorldPeace.

There is no question but that WorldPeace was disbarred for invoking his rights against self incrimination under the Texas and U S Constitutions. There is no question but the State Bar Rules attempt to deny an attorney of his right against self-incrimination.

There is no question but that WorldPeace was offered private and public reprimands in the Apodaca, Lynch and Collins grievances and when WorldPeace refused those offers suit was filed against WorldPeace which was a substantive public reprimand. Therefore, the offers were coercive and unconstitutional violation of WorldPeace due process rights.

There is evidence that the Rule violations for which the court signed a Judgment for Disbarment stated that WorldPeace was disbarred for each violation of the Rules. This punishment was arbitrary and abusive: not considering the fact that the court did not find that in its judgment against WorldPeace at trial but it was added by Molleston.

There was evidence at trial that the State Bar did not incur any attorney fees outside its staff attorneys who were not hired to specifically proceed against WorldPeace and therefore no attorney fees were incurred by the State Bar. Further, J G Molleston further testified that he is paid $27 per hour by the State Bar which is less than the $150 pled by Molleston as attorney fees which is a violation of the TDRPC in that Molleston lied to the court.

There is evidence that the State Bar did not put on expert testimony to prove what a reasonably prudent attorney would have done.

There is evidence that the grievance process is arbitrary and the case law in this state indicates that an attorney has no due process rights in the grievance process prior to the State Bar filing suit and yet an attorney does have due process rights if he elects an evidentiary hearing as opposed to a trial de novo. The grievance process either affords due process rights or it does not. It is a violation of WorldPeace due process rights when the grievance process is subject to due process or not depending on WorldPeace election regarding a trial de novo or evidential hearing after the fact that an investigatory hearing has taken place. In other words, rights exist or do not exist retroactively.

There is evidence that the State Bar prosecuted WorldPeace on the Colllins matter when the matter was barred by res judicata.

There is evidence that the State Bar sued for damages on behalf of WorldPeace ex-clients and these clients were awarded restitution when there were no trust monies proved to be owed to any complainant except Collins.

There is a violation of WorldPeace constitutional rights in that a non attorney is determining whether or not a grievance should be dismissed or classified as a complaint by way of the testimony of Robert Mapes at trial.

My rights to religious freedom, my rights against self-incrimination, my rights to due process and equal protection under the law have been violated as evidenced by the above facts which are all supported by the trial record.

There is more than a scintilla of evidence on each of these violations.

There is no question but that Dawn Miller has a pattern and practice of violating the law in filing suit against WorldPeace. She violated the statute of limitations and now she has violated Rule 3.01 of the TRDP.

Further affiant sayeth not.”

____________________________________

John WorldPeace

SUBSCRIBED AND SWORN TO BEFORE ME on this ____ day of _________, 2003.

____________________________________

NOTARY PUBLIC IN AND FOR THE

STATE OF TEXAS

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