prima facie violation in Texas

2024The State may rebut the prima facie violation by “showing that the disproportionate exclusion manifestly and primarily advances a significant governmental interest.” Id. (citing Duren, 439 U.S. at 367–68).

2024The United States Supreme Court has created a three-prong test, applicable to cases involving Texas juries, by which a defendant may establish a prima facie violation of the fair-cross-section requirement: “(1) the group allegedly excluded is a ‘distinctive’ group in the community; (2) the group was not fairly represented on the jury panel from which the petit jury was chosen; and (3) the underrepresentation resulted from a systematic exclusion of the group in the jury selection process.” Id. (citing Duren, 439 U.S. at 364 .

2019“The prima facie standard requires only the ‘minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.’” DuPont, 136 S.W.3d at 223 (quoting Tex. Tech Univ.

2016Sloat v. Rathbun, 2015 WL 6830927, at *3 (Tex.App.-Austin, 2015) ("we view the pleadings in the light most favorable to [the non-movant]; i.e., favoring the conclusion that her claims are not predicated on protected expression."); see also Cheniere Energy, Inc. v. Lotfl, 449 S.W.3d 210, 214 (Tex.App.-Houston [1st Dist.] 2014, no pet.) (reviewing pleadings and evidence in light most favorable to non-movant) RESPONSE TO MOTION TO DISMISS OF SAN ANGELO COMMUNITY MEDICAL CENTER- PAGE20F 7 226 A prima facie standard generally requires only the "minimum quantum of evidence necessary to support a rat

2009In <EM>Pondexter v. State</EM>, the court instructed that to establish a prima-facie violation of this requirement, an accused "must show: (1) the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process." 942 S.W.2d 577, 580 (Tex. Crim.

2009The only requirement is that "the jury wheels, pools of names, panels, or venires from which jurors are drawn must not systematically exclude distinctive groups, and [thus] fail to be reasonably representative." <EM>Id.</EM> at 538; <EM>see Holland v. Illinois</EM>, 493 U.S. 474, 482-83 (1990) (reiterating that the fair cross section requirement did not apply to the petit jury). </SPAN></SPAN></P> <P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"> In <EM>Pondexter,</EM> the court instructed that to establish a prima-facie violation of the fair

2023A prima facie standard generally requires only the “minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.” Id. (quoting In re E.I.

2021See id. at 591 ; see also Innovative Block of S. Tex., Ltd. v. Valley Builders Supply, Inc., 603 S.W.3d 409 , 418 (Tex. 2020) (explaining that in Texas defamation suits, damages for injury to reputation, personal humiliation, and mental anguish and suffering are considered general damages). 16 To state a prima facie claim, Cronan must also present evidence of negligence.

2012For all of these reasons, we hold that under rule 21a, appellee‘s certificate of service constituted prima facie evidence that he served the expert report on appellant on November 22, and that under the facts of this case, appellant‘s evidence of a postmark of November 23 did not obligate the trial court to find that the prima facie presumption had been overcome.7 See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (stating that to establish an abuse of discretion on a trial court‘s resolution of a factual issue, a party must show that the ―trial court could reasonably have reached only one

2012For all of these reasons, we hold that under rule 21a, appellee’s certificate of service constituted prima facie evidence that he served the expert report on appellant on November 22, and that under the facts of this case, appellant’s evidence of a postmark of November 23 did not obligate the trial court to find that the prima facie presumption had been overcome. [7] See Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992) (stating that to establish an abuse of discretion on a trial court’s resolution of a factual issue, a party must show that the “trial court could reasonably have reached only

2024The defendant in a criminal case bears the burden of establishing a prima facie claim of selective enforcement, by showing the law enforcement “policy ‘had a discriminatory effect and that it was motivated by a discriminatory purpose.’” United States v. Armstrong, 517 U.S. 456, 465 (1996) (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)); see Aparicio, 672 S.W.3d at 708 (quoting Armstrong, 517 U.S. at 465 ); Washington, 869 F.3d at 214 ; United States v. Eshetu, — F.Supp.3d —, 2023 WL 7384996 , at *12 (D.D.C.

2024We next consider whether appellant met his burden of proving a prima-facie claim.6 To establish a prima-facie case of selective prosecution, appellant must show the “prosecutorial policy ‘had a discriminatory effect and that it was motivated by a discriminatory purpose.’” United States v. Armstrong, 517 U.S. 456, 465 (1996) (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)).

2024The defendant in a criminal case bears the burden of establishing a prima facie claim of selective enforcement, by showing the law enforcement “policy ‘had a discriminatory effect and that it was motivated by a discriminatory purpose.’” United States v. Armstrong, 517 U.S. 456, 465 (1996) (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)); see Aparicio, 672 S.W.3d at 708 (quoting Armstrong, 517 U.S. at 465 ); Washington, 869 F.3d at 214 ; United States v. Eshetu, — F.Supp.3d —, 2023 WL 7384996 , at *12 (D.D.C.

2024We next consider whether appellant met his burden of proving a prima-facie claim.6 To establish a prima-facie case of selective prosecution, appellant must show the “prosecutorial policy ‘had a discriminatory effect and that it was motivated by a discriminatory purpose.’” United States v. Armstrong, 517 U.S. 456, 465 (1996) (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)).

2025“The Texas Supreme Court’s time standards ‘provide the prima facie standard for what is unreasonable’ in terms of prosecuting a case.” Doss v. Robinson, No. 04-16-00560- CV, 2017 WL 2124488 , at *2 (Tex. App.—San Antonio May 17, 2017, no pet.) (quoting Hosey v. Cty. of Victoria, 832 S.W.2d 701, 704 (Tex. App.—Corpus Christi 1992, no writ)).

2021ADMIN. 6.1; see also Doss v. Robison, No. 04-16-00560-CV, 2017 WL 2124488 , at *2 (Tex. App.—San Antonio 2017, no pet.) (mem. op.) (“The Texas Supreme Court’s time standards ‘provide the prima facie standard for what is unreasonable’ in terms of prosecuting a case.”) (citing Hosey v. County of Victoria, 832 S.W.2d 701, 704 (Tex. App.—Corpus Christi–Edinburg 1992, no writ.)).

2023Tex. Dep’t of Criminal Justice v. Flores, 555 S.W.3d 656, 661 (Tex. App.—El Paso 2018, no pet.) (citing Garcia, 372 S.W.3d at 636 ).

2023Tex. Dep’t of Criminal Justice v. Flores, 555 S.W.3d 656, 661 (Tex. App.—El Paso 2018, no pet.) (citing Garcia, 372 S.W.3d at 636 ).

2016See Johnson v. Davis, 178 S.W.3d 230, 240 (Tex.App.—Houston [14th Dist.] 2005, pet’, denied) (“To establish a prima facie claim for civil assault, the plaintiff must establish the same elements required for criminal assault.”),- However, a civil assault claim is still a “tort”; it is called “an intentional tort.” City of Watauga v. Gordon, 434 S.W.3d 586, 588-94 (Tex.2014) (explaining that because the Texas Tort Claims Act does not waive governmental immunity for intentional torts and because claims for civil assault and battery are intentional torts, governmental immunity is not waived and su

2014See Johnson v. Davis, 178 S.W.3d 230, 240 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (“To establish a prima facie claim for civil assault, the plaintiff must establish the same elements required for criminal assault.”). 13 We find there is more than a scintilla of evidence in support of the jury’s finding that Norville was acting outside the scope of his employment when he assaulted Phelan.

2015DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding) (internal quotation marks and citation omitted); see, ― 13 ― e.g., Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (applying standard in Chapter 27 case and explaining that Legislature’s use of “prima facie case” implies imposition of minimal factual burden).

2015DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex.2004) (orig.proceeding) (internal quotation marks and citation omitted); see, e.g., Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80 (Tex.App.—Houston [1st Dist.] 2013, pet. denied) (applying standard in Chapter 27 case and explaining that Legislature’s use of “prima facie case” implies imposition of minimal factual burden).

2014Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex. 1996).

2011Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 208 (Tex. 1996).1 Assuming arguendo that a claim for malicious prosecution exists for an administrative disciplinary proceeding, Winfield failed to allege facts showing the disciplinary proceeding was sufficiently terminated in his favor.

2010Applicable Law "To establish a prima facie claim for civil assault, the plaintiff must establish the same elements required for criminal assault." Johnson v. Davis , 178 S.W.3d 230, 240 (Tex. App.-Houston [14th Dist.] 2005, pet. denied) (citing Moore's Inc. v. Garcia , 604 S.W.2d 261, 264 (Tex. Civ.

2010Applicable Law “To establish a prima facie claim for civil assault, the plaintiff must establish the same elements required for criminal assault.” Johnson v. Davis, 178 S.W.3d 230, 240 (Tex. App.–Houston [14th Dist.] 2005, pet. denied) (citing Moore’s Inc. v. Garcia, 604 S.W.2d 261, 264 (Tex. Civ.

2010See Pech v. Estate of Tavarez , 112 S.W.3d 282, 285 (Tex. App.-Corpus Christi 2003, no pet.) (citing Shah , 67 S.W.3d at 847 ; Nelson , 678 S.W.2d at 921-22 ; DeRuy v. Garza , 995 S.W.2d 748, 752 (Tex. App.-San Antonio 1999, no pet.)); see also Shah , 67 S.W.3d at 847 ("A plaintiff may not obtain relief under the open courts provision if he does not use due diligence and sue within a reasonable time after learning about the alleged wrong.").

2010See Pech v. Estate of Tavarez, 112 S.W.3d 282, 285 (Tex. App.–Corpus Christi 2003, no pet.) (citing Shah, 67 S.W.3d at 847 ; Nelson, 678 S.W.2d at 921-22 ; DeRuy v. Garza, 995 S.W.2d 748, 752 (Tex. App.–San Antonio 1999, no pet.)); see also Shah, 67 S.W.3d at 847 (“A plaintiff may not obtain relief under the open courts provision if he does not use due diligence and sue within a reasonable time after learning about the alleged wrong.”).

2006See Simpson , 119 S.W.3d at 268 .

2006See Simpson, 119 S.W.3d at 268 .

2025This preliminary showing at the prima facie hearing is necessary “to assure the court that valuable judicial resources will not be wasted by conducting a spurious ‘full-blown’ examination of the merits.” Id. 4 this matter.” The trial court made an oral finding that the property division in the Agreed Final Decree was “a void order because [this court] does not have jurisdiction over that property.”5 The trial court then set aside the entire Agreed Final Decree and declared that Wife’s requested modification was “no longer valid as the divorce has not happened.”6 On April 18, 2024, Wife filed a

2021A prima facie claim or defense is presented if it is determined by the trial court that the petitioner’s claim or defense “is not barred as a matter of law[,] and that he will be entitled to judgment on retrial if no evidence to the contrary is offered.” Baker, 582 S.W.2d at 409 .

2009That dismissal was appealed, and the reviewing court reversed the order and remanded the cause after finding that Ewton “established a prima facie claim in support of her bill . . . .” Ewton v. Gayken , 130 S.W.3d 382, 385 (Tex. App.–Beaumont 2004, pet. denied).

2008That dismissal was appealed, and the reviewing court reversed the order and remanded the cause after finding that Ewton “established a prima facie claim in support of her bill . . . .” Ewton v. Gayken , 130 S.W.3d 382, 385 (Tex. App.–Beaumont 2004, pet. denied).

2023Tex. Dep’t of Criminal Justice v. Flores, 555 S.W.3d 656, 661 (Tex. App.—El Paso 2018, no pet.) (citing Garcia, 372 S.W.3d at 636 ).

2023Tex. Dep’t of Criminal Justice v. Flores, 555 S.W.3d 656, 661 (Tex. App.—El Paso 2018, no pet.) (citing Garcia, 372 S.W.3d at 636 ).

2019Strata Res. v. State, 264 S.W.3d 832, 843 (Tex. App.— Austin 2008, no pet.) (citing In re Haga, 131 B.R. 320, 327 (Bankr.

1999See In re Haga, 131 B.R. 320, 327 (Bankr.W.D.Tex.1991) (stating that a discharge is an affirmative defense which establishes a prima facie defense to any claim based upon a pre-petition debt).

2019Instead, under the statutory scheme, the respondent must wait until specified and limited discovery, if any, is 12 However, any merits-based discovery that is necessarily implicated by discovery relevant to the motion to dismiss “must still be ‘specified and limited’ because a prima facie standard generally ‘requires only the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.’” Id. (quoting In re E.I.

2019See Serafine v. Blunt, 466 S.W.3d 352, 357 (Tex. App—Austin 2015, no pet.) (“A prima facie standard generally ‘requires only the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.’”). 8 CONCLUSION Having concluded that Lewis established by clear and specific evidence a prima facie case for the sole disputed element of her IIED claim, we affirm the district court’s denial of Appellants’ motion to dismiss. __________________________________________ Gisela D.

2010See Pech v. Estate of Tavarez , 112 S.W.3d 282, 285 (Tex. App.-Corpus Christi 2003, no pet.) (citing Shah , 67 S.W.3d at 847 ; Nelson , 678 S.W.2d at 921-22 ; DeRuy v. Garza , 995 S.W.2d 748, 752 (Tex. App.-San Antonio 1999, no pet.)); see also Shah , 67 S.W.3d at 847 ("A plaintiff may not obtain relief under the open courts provision if he does not use due diligence and sue within a reasonable time after learning about the alleged wrong.").

2010See Pech v. Estate of Tavarez , 112 S.W.3d 282, 285 (Tex. App.-Corpus Christi 2003, no pet.) (citing Shah , 67 S.W.3d at 847 ; Nelson , 678 S.W.2d at 921-22 ; DeRuy v. Garza , 995 S.W.2d 748, 752 (Tex. App.-San Antonio 1999, no pet.)); see also Shah , 67 S.W.3d at 847 ("A plaintiff may not obtain relief under the open courts provision if he does not use due diligence and sue within a reasonable time after learning about the alleged wrong.").

2010See Pech v. Estate of Tavarez , 112 S.W.3d 282, 285 (Tex. App.-Corpus Christi 2003, no pet.) (citing Shah , 67 S.W.3d at 847 ; Nelson , 678 S.W.2d at 921-22 ; DeRuy v. Garza , 995 S.W.2d 748, 752 (Tex. App.-San Antonio 1999, no pet.)); see also Shah , 67 S.W.3d at 847 ("A plaintiff may not obtain relief under the open courts provision if he does not use due diligence and sue within a reasonable time after learning about the alleged wrong.").

2010See Pech v. Estate of Tavarez, 112 S.W.3d 282, 285 (Tex. App.–Corpus Christi 2003, no pet.) (citing Shah, 67 S.W.3d at 847 ; Nelson, 678 S.W.2d at 921-22 ; DeRuy v. Garza, 995 S.W.2d 748, 752 (Tex. App.–San Antonio 1999, no pet.)); see also Shah, 67 S.W.3d at 847 (“A plaintiff may not obtain relief under the open courts provision if he does not use due diligence and sue within a reasonable time after learning about the alleged wrong.”).

2005See Beck v. Beck, 771 S.W.2d 141 (Tex.1989); Baker v. Goldsmith, 582 S.W.2d 404, 408-09 (Tex.1979).

2005See Beck v. Beck, 771 S.W.2d 141 (Tex.1989); Baker v. Goldsmith, 582 S.W.2d 404, 408-09 (Tex. 1979).

1954The *135 superintendent’s statement, when filed, could have no greater effect than to create a presumption and in Weatherly v. Jackson, 123 Tex. 213 , 71 S.W.2d 259 , at page 267, the Commission said: “A law which'gives to the act of a public official the effect of raising a prima facie presumption and does not deprive the party affected of the right to rebut' the presumption is not in denial of due process.” Provisions already quoted from Article 3196a put the forcible collection of the obligation due the State into the courts.

1954The *135 superintendent’s statement, when filed, could have no greater effect than to create a presumption and in Weatherly v. Jackson, 123 Tex. 213 , 71 S.W.2d 259 , at page 267, the Commission said: “A law which'gives to the act of a public official the effect of raising a prima facie presumption and does not deprive the party affected of the right to rebut' the presumption is not in denial of due process.” Provisions already quoted from Article 3196a put the forcible collection of the obligation due the State into the courts.

2022CODE § 27.005(d) (stating, in part, “[T]he court shall dismiss a legal action against the moving party if the moving party establishes an 15 Batra stated, “[I]n order to defeat the [nonmovant’s] establishment of a prima facie claim, the [movant] must establish, as a matter of law, each essential element of at least one valid defense as to each of the [nonmovant’s] claims.”). 562 S.W.3d at 708. 16 Rosales stated, “The standard of review employed in considering whether a movant established a valid defense so as to be entitled to dismissal is ‘essentially equivalent to a motion for summary judgme

2020See Batra v. Covenant Health Sys., 562 S.W.3d 696, 708 (Tex. App.—Amarillo 2018, pet. denied) (explaining this and stating, “[I]n order to defeat the [nonmovant’s] establishment of a prima facie claim, the [movant] must establish, as a matter of law, each essential element of at least one valid defense as to each of the [nonmovant’s] claims.”); Rosales v. Comm’n for Lawyer Discipline, No. 03-18-00725-CV, 2020 WL 1934815 , at *4 (Tex. App.—Austin Apr. 22, 2020, no pet.) (mem. op.) (“The standard of review employed in considering whether a movant established a valid defense so as to be entitled

2020See Shoukfeh, 943 S.W.2d at 445 .

2020See Goode, 943 S.W.2d at 445 .