Johnny Partain v. State of Texas

ACCEPTED
15-25-00005-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
9/5/2025 11:19 AM
No. 15-25-00005-CV CHRISTOPHER A. PRINE
__________ CLERK
FILED IN
In the 15th COURT OF APPEALS
AUSTIN, TEXAS
Fifteenth Court of Appeals 9/5/2025 11:19:07 AM
___________ CHRISTOPHER A. PRINE
Clerk
JOHNNY PARTAIN,
Plaintiff –Appellant,
v.

STATE OF TEXAS,
Defendant –Appellee.
___________

On Appeal from the
126th Judicial District Court, Travis County, Texas
___________

STATE OF TEXAS’S RESPONSE TO APPELLANT’S
EMERGENCY MOTION TO DISMISS THE DISTRICT
COURT CASE FOR MOOTNESS
___________
KEN PAXTON Ali Thorburn
Attorney General of Texas Texas Bar No. 24125064
Assistant Attorney General
BRENT WEBSTER General Litigation Division
First Assistant Attorney General P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
RALPH MOLINA (737) 330-4404
Deputy Attorney General for Civil FAX: (512) 320-0667
Litigation ali.thorburn@oag.texas.gov
Counsel for Appellee
AUSTIN KINGHORN
Deputy Attorney General for Civil
Litigation

KIMBERLY GDULA
Chief, General Litigation Division

1
INTRODUCTION

Appellant Johnny Partain (“Partain”) filed a fraudulent financing

statement (the “Fraudulent Financing Statement”) claiming a security

interest in all State property. C.R. at 201-02. Partain used the Financing

Statement to try to take State property. C.R. at 202. Partain does not deny he

filed the Financing Statement or that he tried to take State property. Partain’s

Emergency Motion to Dismiss the District Court Case for Mootness

(“Partain’s Motion”) p. 4 (“the State of Texas compensated Partain for the

debt mostly through execution on Partain’s UCC lien”). Instead, Partain

insists it was his constitutional right to do so. Partain’s Motion pp. 3-4

(claiming Partain “was compensated for that debt as per US and Texas

constitutional requirements for just and adequate compensation”).

Partain bases this “constitutional right” in a misreading of case law,

wherein he concludes that because a cause of action accrues upon an

unconstitutional taking, he has the right to self-execute his compensation

however he pleases the moment he believes an unconstitutional taking

occurred. Appellant’s Brief at 10-11. So, despite a Hidalgo County Court’s

order1 dismissing Partain’s takings claims with prejudice (C.R. at 59), Partain

1 Partain v. Guerra et al., No. C-0929-12-F (Hidalgo County Judicial District 332, Tex.

Nov. 2, 2021) (dismissing Partain’s takings claims with prejudice) (“the Hidalgo County
Case”).

2
filed the Fraudulent Financing Statement and attempted to take State

property to “compensate” himself (Partain’s Motion p. 4). Partain believes

he now owns State property and is therefore fully compensated for Texas’s

alleged taking against him. Partain’s Motion p. 1, 4. The State disputes that

a taking occurred and disputes that Partain’s attempts to take State property

“compensated” him for such alleged taking.

On July 24, 2025, Partain filed an affidavit in the Hidalgo County Case

stating he had been fully compensated by the State for the alleged taking and

thus his claims were moot. A certified copy of this affidavit is attached to this

Response as State Exhibit 1 and incorporated herein.2 Five days later, on July

29, 2025, the Hidalgo County Court entered an order (the “Hidalgo Order”)

dismissing the Hidalgo County Case as moot. Partain’s Motion Ex. 1. It is this

order Partain claims moots the present case. Partain’s Motion p. 5. The State

now files this Response to Partain’s Motion.3

2 The State requests this Court take judicial notice of the affidavit signed and filed by

Johnny Partain in the Hidalgo County Case attached as State’s Exhibit 1.
3 In Partain’s Certificate of Conference, he asserts that he attempted to contact the State

regarding its position on his Motion and did not receive a response. To clarify, Partain
contacted the State regarding his Motion at 9:53 A.M. and stated “I will be motioning the
15th Court of Appeals to dismiss the case. Are you opposed.” Partain filed the Motion just
hours later before the State had responded regarding its position. After the State reviewed
Partain’s Motion, it communicated its opposition to the relief sought.

3
ARGUMENT

This Court should deny Partain’s Motion because the present case is

not moot and Partain’s other arguments for dismissal are not properly before

this Court.

I. The Hidalgo Order Does Not Moot the Present Case.

“The party asserting [mootness] must prove that intervening events

make it ‘impossible for a court to grant any effectual relief whatever to the

prevailing party.’” Texas Dep't of Fam. & Protective Servs. v. Grassroots

Leadership, Inc., No. 23-0192, 2025 WL 1642437, at *13 (Tex. May 30, 2025)

(citing In re Dallas Cnty., 697 S.W.3d 142, 151 (Tex. 2024). “A case becomes

moot if, since the time of filing, there has ceased to exist a justiciable

controversy between the parties—that is, if the issues presented are no longer

‘live,’ or if the parties lack a legally cognizable interest in the outcome.”

Heckman v. Williamson Cnty., 369 S.W.3d 137, 162 (Tex. 2012). “Put simply,

a case is moot when the court's action on the merits cannot affect the parties'

rights or interests.” Id. at 162.

Partain claims the Hidalgo Order moots the present case because it

“destroys the state’s standing[,]” “directly contradict[s] the State of Texas” in

the present case, and precludes this Court from offering relief to any parties

because Partain’s collection of State property “has been recognized as being

4
just and adequate compensation[.]” Partain’s Motion pp. 3, 5. Partain is

incorrect on all points.

A. The Hidalgo Order Does Not Condone the Taking of State
Property without Consent.

The Hidalgo Order comes on the heels of an affidavit Partain filed

requesting the Hidalgo County Court dismiss the case as moot because he

had been fully compensated and had no interest in pursing the case further.

State Ex. 1. There is no evidence the Hidalgo County Court knew how Partain

“compensated” himself or why Partain feels he was “compensated.” The

Hidalgo County Court’s acceptance of Partain’s claim that he was

compensated cannot be construed to condone or affirm the efficacy or the

methods Partain took to “compensate” himself.

The only holdings to glean from the Hidalgo Order are (1) Partain

believes he was fully compensated, (2) because Partain believes he has been

fully compensated and no longer wishes to pursue the case, the claims are

moot, and (3) all prior orders are vacated, and the entire case is dismissed

with prejudice. Ex. 1. None of these holdings require or imply that Partain

has the constitutional right to file fraudulent financing statements or take

State property without consent.

5
B. The Hidalgo Order is Consistent with the District Court’s Ruling
in the Present Case.

The relevant question presented in the Hidalgo County Case was

whether Partain suffered an unconstitutional taking. See Partain v. Guerra

et al., No. C-0929-12-F (Hidalgo County Judicial District 332, Tex. Nov. 2,

2021); see also C.R. at 59-79. The questions presented in the present case are

whether Partain filed a fraudulent financing statement and whether Partain’s

attempts to enforce that financing statement cause the State irreparable

harm.

While the outcome of the Hidalgo County Case explains Partain’s

actions in the present case, the outcome of the present case is not dependent

on the Hidalgo County Case. In fact, in making its ruling in the present case,

the district court specifically assumed the State did owe Partain a debt. R.R.

Vo. 2 at 70. (“But the -- let me begin with the saying let's assume that the

debt is valid. Let's assume the State owes you money. Let's just make that

assumption and not go behind that.”). Even assuming Partain had a valid

debt, the district court still properly held that Partain did not have a security

interest in State property and Partain could not take State property without

the State’s consent. R.R. Vol. 2 at 70-72. Thus, even assuming arguendo that

the Hidalgo Order meant the State committed a taking, it still would have no

effect on the present case.

6
C. The Hidalgo Order Does Not Affect the State’s Standing.

Standing requires a plaintiff suffer an actual, concrete injury in fact

that is traceable to the conduct of the defendant and redressable by the court.

Heckman, 369 S.W.3d at 155. The State was injured by Partain’s filing of the

Fraudulent Financing Statement and Partain’s attempts to take State

property without the State’s consent. C.R. at 48, 202. This conduct is

traceable to Partain. C.R. at 49-50, 201-02. This harm was redressed by the

district court’s declaration that Partain did not have a security interest in

State property, release of the Fraudulent Financing Statement, and entry of

an injunction against Partain. See C.R. at 50-51, 201-03. This harm will

continue to be redressed by this Court’s affirmance of the district court’s

order in full. The Hidalgo Order has no effect on these facts and thus no effect

on the State’s continued standing. See supra I(B).

D. The Hidalgo Order Does Not Moot the Present Case.

Partain has not proven that the Hidalgo Order makes it impossible for

the Court to grant relief in the present case. See Grassroots Leadership, Inc.,

No. 23-0192, 2025 WL 1642437, at *13. The issue before this Court is

whether the district court properly declared the Fraudulent Financing

Statement fraudulent, void and unenforceable, properly ordered its release,

and properly enjoined Partain from attempting to enforce it and from filing

7
further fraudulent financing statements claiming State property absent a

valid security agreement. Appellee’s Brief at 3. The Hidalgo Order did not

address this issue. (see supra I(A)).

This Court’s decision will affect the rights of the parties in the present

case. Should this Court agree with Partain and dismiss the district court’s

case, the State’s property rights will be affected in that Partain will be allowed

to violate the law and take State property without the State’s consent. See

Partain’s Motion p. 4. Should the Court agree with the State, the State’s harm

will continue to be redressed. Notably, Partain requests affirmative relief

from the Court in his own Motion, illustrating this Court’s ongoing ability to

grant effectual relief to both parties. Partain’s Motion p. 7 (requesting the

Court “order the State of Texas to return Partain’s property that it took”).

As such, Partain has not proven the Court is unable to grant relief in

the present case. See Grassroots Leadership, Inc., No. 23-0192, 2025 WL

1642437, at *13. To the contrary, the Court’s decision will greatly affect the

rights and interests of the parties, rendering the case live and justiciable.

II. Partain’s Additional Arguments for Dismissal Are Not
Properly Before This Court.
The Texas Rules of Appellate Procedure do not permit an appellant to

raise new issues not included in the appellant’s original brief. TEX. R. APP. P.

38.1(f); see e.g. Lopez v. Montemayor, 131 S.W.3d 54, 61 (Tex. App.–San

8
Antonio 2003, pet. denied) (“A reply brief is not intended to allow an

appellant to raise new issues”); see also Hampton v. Equity Tr. Co., 607

S.W.3d 1, 6 (Tex. App.–Austin 2020, pet. denied). Here, the briefing process

has been complete for months. Appellant’s Reply at 15 (certifying Appellant’s

Reply Brief was served on May 28, 2025). The time for new arguments has

long passed.

Nevertheless, Partain now asserts new reasons the Court should grant

essentially the same relief Partain requested in his Appellant’s Brief. See

Partain’s Motion p. 7; see also Appellant’s Brief at 40. Specifically, Partain

claims (1) the present case is parallel litigation to the Hidalgo County Case

and the Hidalgo County Case had dominant jurisdiction and (2) the present

case was brought in the wrong venue. Partain’s Motion pp. 3-4.

These additional reasons are not caused by intervening events but were

present when Partain filed his Appellant’s Brief, yet Partain did not raise

them in his Appellant’s Brief (Appellant’s Brief at 10-40) or even in his Reply

Brief (Appellant’s Reply Brief at 1-14). These arguments are not subsidiary to

or remotely intertwined with any argument raised in Partain’s Appellant’s

Brief. See Stovall & Assocs., P.C. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790,

803 (Tex. App.–Dallas 2013, no pet.). Because Partain’s new arguments

would not be properly before this Court if they were presented in a reply

9
brief, they are certainly not properly before this Court in Partain’s second

post-brief Motion and should not be considered. See TEX. R. APP. P. 38.1(f).

III. Even if Properly Before This Court, Partain’s Additional
Arguments for Dismissal Fail on the Merits.

Even if Partain’s new arguments were properly before this Court, they

fail on the merits. As discussed supra, while the Hidalgo County Case

provides context for the present case, the present case is not so inherently

intertwined with the Hidalgo County Case that the dominant jurisdiction

rule applies. See In re J.B. Hunt Transport, Inc., 492 S.W.3d 287, 294 (Tex.

2016) (applying the dominant jurisdiction rule when a claim was not the

subject of a pending action at the time of filing and the subject matter of the

claim in the other suits otherwise satisfied the compulsory counterclaim

rule); see also TEX. R. CIV. P. 97(a). Also, venue is proper in Travis County

because the main event giving rise to the claim was the filing of the

Fraudulent Financing Statement and the Fraudulent Financing Statement

was filed in Travis County. See TEX. CIV. PRAC. & REM. CODE § 15.002(a)(1);

C.R. at 9.

CONCLUSION

The State respectfully requests this Court deny Appellant Johnny

Partain’s Emergency Motion to Dismiss the District Court Case for Mootness

and affirm the district court’s ruling.

10
Respectfully submitted,

KEN PAXTON Ali Thorburn
Attorney General of Texas Texas Bar No. 24125064
Assistant Attorney General
BRENT WEBSTER General Litigation Division
First Assistant Attorney General P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
RALPH MOLINA (737) 330-4404
Deputy Attorney General for Civil FAX: (512) 320-0667
Litigation ali.thorburn@oag.texas.gov
Counsel for Appellee
AUSTIN KINGHORN
Deputy Attorney General for Civil
Litigation

KIMBERLY GDULA
Chief, General Litigation Division

11
CERTIFICATE OF COMPLIANCE

The undersigned counsel certifies that this Appellee Brief complies

with Texas Rule of Appellate Procedure 10 relating to Motions in the

Appellate Courts. The text is a conventional typeface set to 14-point and the

number of words in the document, not counting excepted sections, as

calculated by the word count feature of Microsoft Word is 2,376.

/S/ Ali Thorburn
ALI THORBURN
Assistant Attorney General

12
CERTIFICATE OF SERVICE

The undersigned counsel certifies that the above and foregoing

instrument has been served on all counsel of record in accordance with the

Texas Rules of Appellate Procedure on this September 5th, 2025, through the

electronic filing system, email, regular mail, and Certified Mail, return

receipt requested.

Johnny Partain Plaintiff –Appellant
7020 N. 16th Street
McAllen, Texas 78504
partain@atlastechnologies.biz
CM/RRR#: 9589 0710 5270 0480 2519 06

/S/ Ali Thorburn
ALI THORBURN
Assistant Attorney General

13
No. 15-25-00005-CV
__________

In the
Fifteenth Court of Appeals
___________

JOHNNY PARTAIN,
Plaintiff –Appellant,
v.

STATE OF TEXAS,
Defendant –Appellee.
___________

On Appeal from the
126th Judicial District Court, Travis County, Texas
___________

APPENDIX TO STATE OF TEXAS’S RESPONSE TO
APPELLANT’S EMERGENCY MOTION TO DISMISS THE
DISTRICT
COURT CASE FOR MOOTNESS
___________

Document Appx.
Certified Affidavit of Johnny Partain…………………………………………………….16

14
Exhibit 1
8/12/2025

16
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Ariana Ines on behalf of Ali Thorburn
Bar No. 24125064
ariana.ines@oag.texas.gov
Envelope ID: 105251723
Filing Code Description: Response
Filing Description: STATE OF TEXASS RESPONSE TO APPELLANTS
EMERGENCY MOTION TO DISMISS THE DISTRICT COURT CASE
FOR MOOTNESS
Status as of 9/5/2025 12:49 PM CST

Associated Case Party: STATE OF TEXAS Ali Thorburn Assistant Attorney General

Name BarNumber Email TimestampSubmitted Status

Zachary L.Rhines zachary.rhines@oag.texas.gov 9/5/2025 11:19:07 AM SENT

Ali Thorburn ali.thorburn@oag.texas.gov 9/5/2025 11:19:07 AM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Ariana Ines ariana.ines@oag.texas.gov 9/5/2025 11:19:07 AM SENT

Associated Case Party: JOHNNYPARTAIN

Name BarNumber Email TimestampSubmitted Status

Johnny Partain partain@atlastechnologies.biz 9/5/2025 11:19:07 AM SENT