Johnny Partain v. State of Texas

ACCEPTED 15-25-00005-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 5/16/2025 1:00 PM No. 15-25-00005-CV CHRISTOPHER A. PRINE __________ CLERK FILED IN 15th COURT OF APPEALS In the AUSTIN, TEXAS Fifteenth Court of Appeals 5/16/2025 1:00:47 PM ___________ 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 ___________

APPELLEE’S BRIEF ___________ 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 (512) 475-4392 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

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IDENTITIES OF PARTIES AND COUNSEL

Trial Court Judge: Honorable F. Scott. McCown Presiding Judge 353rd District Court 1700 Guadalupe Austin, Texas 78701

Appellant: Johnny Ray Partain

Pro Se 7020 N. 16th Street McAllen, Texas 78504

Appellee: State of Texas

Attorneys of Record: Ali M. Thorburn Assistant Attorney General General Litigation Division Texas Bar No. 24125064 Ali.Thorburn@oag.texas.gov

Zachary L. Rhines Special Counsel Special Litigation Division Texas Bar No. 24116957 Zachary.Rhines@oag.texas.gov

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TABLE OF CONTENTS

Identities of Parties and Counsel................................................................. ii Table of Contents.......................................................................................... iii

Index of Authorities....................................................................................... v Statement Of The Case ................................................................................. 1

Statement Regarding Oral Argument ......................................................... 2 Issue Presented.............................................................................................. 3

Statement of the Facts .................................................................................. 4 I. Partain Has a Long History of Conflict with the State. .................. 4

II. Partain Filed and Attempted to Enforce a Fraudulent Financing Statement.............................................................................................. 6

III.The State Filed Suit to Remedy the Injuries Caused by Partain’s Filing and Attempted Enforcement of the Fraudulent Financing Statement.............................................................................................. 9 IV. Partain Brought This Appeal. .......................................................... 12 Summary of the Argument ......................................................................... 14

Argument...................................................................................................... 17

I. Partain Failed to Adequately Brief His Arguments and, As Such, They Are Not Properly Before This Court....................................... 17

II. The District Court Properly Granted the State’s Request for a Permanent Injunction, Release of the Financing Statement, and Declaratory Relief. ............................................................................. 19 A. The State had authority to sue Partain under § 9.5185. ........ 20

B. Partain violated § 9.5185. ........................................................... 22

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C. The district court properly granted the State’s request for permanent injunctive relief. ....................................................... 23

D. Partain’s due process rights were not denied........................... 24

E. The Texas Constitution does not prevent the State from Enforcing the Texas Business and Commerce Code................ 26

F. The State did not sue Partain to reverse Partain’s exercise of his constitutional right to compensation. ................................. 29 G. The State’s complaint is not moot.............................................. 30

H. Several of Partain’s points of error are raised for the first time on appeal and are therefore not properly before this court. ... 31 III. Prayer............................................................................................... 32

Certificate of Compliance............................................................................ 33 Certificate of Service ................................................................................... 33 Appendix ....................................................................................................... 34

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INDEX OF AUTHORITIES Cases City of Corpus Christi v. Five Citizens of Corpus Christi, 103 S.W.3d 660 (Tex. App.—Edinburg 2003, pet. denied) ...........................................................................................16, 23 Denmon v. Atlas Leasing, 285 S.W.3d 591 (Tex. App.–Dallas 2009, no pet.)........................... 18 Harris Cnty. Flood Control Dist. v. Kerr, 499 S.W.3d 793 (Tex. 2016)............................................................... 27 Heckman v. Williamson Cty., 369 S.W.3d 137 (Tex. 2012)....................................................... passim Huynh v. Blanchard, 694 S.W.3d 648 (Tex. 2024)............................................................... 16 Leibovitz v. Sequoia Real Estate Holdings, L.P., 465 S.W.3d 331 (Tex. App.—Dallas 2015, no pet.) ......................... 23 Mickens v. Longhorn DFW Moving Inc., 264 S.W.3d 875 (Tex. App.—Dallas 2008, pet. denied).................. 25 Mosely v. Tex. Health and Hum. Serv. Comm'n, 593 S.W.3d 250 (Tex. 2019)............................................................... 26 NexPoint Advisors, L.P. v. United Development Funding IV, 674 S.W.3d 437 (Tex. App.—Fort Worth 2023, pet. denied) ...........................................................................................18, 29 Partain v. Eddie Guerra, et al., No. C-0929-12-F (332nd District Ct., Hidalgo County, Tex.) ..................................................................................................... 27 Poretto v. Patterson, 251 S.W.3d 701 (Tex. App–Houston [1st Dist] 2007, no pet.) ...................................................................................................... 27 Ski River Development, Inc. v. McCalla, 167 S.W.3d 121 (Tex. App.—Waco 2005, pet. denied).................... 16 State v. Loe, 692 S.W.3d 215 (Tex. 2024)............................................................... 28

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Stringfellow v. Tex. Dep't of Pub. Safety, No. 15-24-00024-CV, 2025 WL 996361 (Tex. App.— Austin [15th Dist.] Apr. 3, 2025, pet. filed) ..................................... 17 Tex. Outfitters Ltd., LLC v. Nicholson, 572 S.W.3d 647 (Tex. 2019).................................................. 16, 23, 24

Statutes TEX BUS. & COM. CODE § 9.5185 ......................................................... passim

Rules TEX. R. APP. P. 33.1. ...............................................................................15, 31 TEX. R. APP. P. 38.1 ......................................................................... 14, 17, 18

Constitutional Provisions TEX. CONST. ART. I SEC. 29.....................................................................15, 28

Record References The following record references will be used in Appellee's Brief:

Clerk's Record ............................................................................... C.R. [page] Supplemental Clerk's Record. .......................................... Supp. C.R. [page] Reporter's Record Volume 1 ............................................. R.R. Vol. 1 [page] Reporter's Record Volume 2 ............................................. R.R. Vol. 2 [page]

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STATEMENT OF THE CASE

Nature of the Case: The State alleges that Partain violated § 9.5185 of the Texas Business and Commerce Code by filing a fraudulent financing statement because Partain filed a financing statement claiming a security interest in all State property when he knew he did not have a judgment lien, security agreement, or any other interest in State property. C.R. 8- 20. The question on appeal is whether the trial court’s order declaring the financing statement fraudulent, void, and unenforceable, ordering its release, and enjoining Partain from enforcing it or from filing other fraudulent financing statements groundlessly claiming a security interest in State property was an abuse of discretion. C.R. 201-03.

Trial Court: 353rd Judicial District, Travis County Hon. F. Scott McCown presiding and ruling

Trial Court Disposition: The trial court granted the State’s requests for declaratory and injunctive relief, denied the State’s request for statutory damages and attorneys’ fees, and denied Partain’s Plea to the Jurisdiction. C.R. 201-03.

STATEMENT REGARDING ORAL ARGUMENT

The State does not believe Oral argument is necessary in this case. However, if the Court schedules oral argument, the State requests the opportunity to participate.

ISSUE PRESENTED

1. Partain unilaterally claims he has a security interest in all State property and filed a financing statement with the Texas Secretary of State attempting to secure that alleged interest. Did the district court properly declare that financing statement fraudulent, void, and unenforceable, order its release, and enjoin Partain from attempting to enforce it and from filing further fraudulent financing statements claiming State property absent a valid security agreement?

STATEMENT OF THE FACTS

The State contests all statements of fact made in Partain’s Brief. The State addresses the most relevant below. I. Partain Has a Long History of Conflict with the State.

More than five years ago, Partain brought an inverse condemnation claim against the State in Hidalgo County. C.R. 59-80, 87-89. While the suit was ongoing, but before a ruling was issued, on August 3, 2020, Partain wrote a letter to Governor Abbott “requesting a timely scheduled meeting” “to negotiate reasonable compensation for [his] property losses so that [he] might finally resume [his] life, liberty, property, privilege, and immunities with [his] family as promised under [the] Texas Constitution”. Supp. C.R. 85. This letter to Governor Abbott contains the only complete description of the property Partain claims the State took from him. Supp. C.R. 84-85. All Partain’s grievances revolve around a bitter legal dispute between Partain and a former business partner where Partain lost, and a court enforced the judgment against Partain. Supp. C.R. 84-85. None of the claims actually involve the State taking Partain’s property. See id.

Subsequently, on November 20, 2020, the Hidalgo County District Court dismissed Partain’s inverse condemnation claims with prejudice. C.R. 59. Unsatisfied with this outcome, on December 21, 2021, Partain wrote a letter to Governor Abbott and Attorney General Paxton stating “The State of Texas owes me $250 million for condemnation and destruction of my property through its efforts to protect official incompetence and corruption in South Texas.” Supp. C.R. 80. Partain further stated that “If you ignore me, I will be forced to take the $250 million, plus whatever costs to collect it, to make myself whole – to embarrass everyone involved and to destroy the status quo so I might finally live peacefully in Texas.” Supp. C.R. 81.

On August 11, 2022, Partain wrote a letter titled “Notice of Debt Collection” to the Governor Abbott and Attorney General Paxton informing them that “The State of Texas may pay its debt to Johnny Partain within 20 days of this letter without incurring additional costs, but note that no action is necessary from your office. If you protest and wish to justify your position, protest immediately and be very specific regarding the terms of your protest: Remember that the Texas judiciary has already waived and exhausted its jurisdiction to review this debt, *6 punting any reasonable and civil resolution to your offices if possible.” Supp. C.R. 79.

Shortly thereafter, Partain filed a miscellaneous claim with the Texas Comptroller for $250,000,000. Supp. C.R. 77. The Comptroller did not give Partain $250,000,000, but instead wrote to him and informed him that in order to claim just compensation for a taking, a court must rule that a taking occurred. Supp. C.R. 76.

Upset that he was not given $250,000,000 of State money and property, on May 18, 2023, Partain wrote a letter to the then-United States Attorney General Merrick Garland, claiming he was filing a criminal complaint against the Texas Governor and Attorney General for not giving him the now increased amount of $327,143,334. Supp. C.R. 73-75.

II. Partain Filed and Attempted to Enforce a Fraudulent Financing Statement.

On October 6, 2023, Partain filed financing statement No. 23-0043292984 (“the Financing Statement”) with the Texas Secretary of State (C.R. 201) claiming Partain has a security interest in “all assets, interests, and taxes, prospective and real, belonging to Texas…the sum *7 certain total including $250,000,000, plus 10% compounded interest per year accruing on the $250,000,000 since January 4, 2021” (C.R. 202).

Partain attempted to collect on the debt alleged in the Financing Statement; specifically, Partain filed general warranty deeds purporting to deed State property to himself and from himself (C.R. 91-117) and harassed private oil and gas companies in an attempt to get them to pay royalties due to the Texas Permanent School Fund 1 (“PSF”) to him, rather than the PSF (C.R. 11, 201-202; R.R. Vol. 2 24:1-37:19). Partain sent at least 18 of these threatening letters to private oil and gas lessees. R.R. Vol. 2 at 30:19-31:5. These letters included statements such as “I am giving you a final opportunity to correct your trespass. If I don’t receive an appropriate response from you to resolve this problem by December 1, 2024, I will shut down your production, possibly confiscating your equipment in the process, and cancel your lease rights.” E.g. R.R. Vol. 2 at 36:18-24. Partain also attached “transfer statements” to the letters he sent to the oil and gas lessees (e.g. R.R. Vol. 2 at 27:22-29:11). It is from 1 The Permanent School Fund was created by Texas’s first Constitution in 1845 as a

perpetual fund to support the State’s public schools. The PSF’s mission is to provide for Texas public schools. PSF lands, including the leasing of surface and mineral rights, are managed by the General Land Office (“GLO”). The proceeds from these lands, particularly oil and natural gas royalty revenue, go to support Texas public schools. C.R. 28.

these transfers Partain claims to have “already collected his compensation[.]” Appellant’s Brief at 2.

Upon discovering Partain’s filing of the Financing Statement and attempts to enforce it, on January 31, 2024, the Office of the Attorney General sent Partain a Cease and Desist letter informing him his representations of a security interest in State property in the Financing Statement were “wholly inaccurate and entirely without authority” and requesting he stop contacting companies and claiming an interest in State property, file a UCC termination statement, and send copies of the termination statement to all companies who he had previously contacted and claimed a security interest in State property. Supp. C.R. 71-72.

On February 16, 2024, Partain responded to the Cease and Desist letter with a letter of his own stating that “[a]s of February 16, 2024, the State of Texas is indebted to me for approximately $337 million, minus the estimated over $100 million in assets I possess through execution against the State. That’s comes out to about $237 million…I’ve developed a lot of tools and I will collect the full amount of the State’s debt…Please make certain that the GLO returns my royalties back to me.” C.R. 70.

III. The State Filed Suit to Remedy the Injuries Caused by Partain’s Filing and Attempted Enforcement of the Fraudulent Financing Statement.

The State filed suit under section 9.5185 of the Texas Business and Commerce Code and requested the district court (1) declare the Financing Statement fraudulent, void, and unenforceable, (2) order the release of the Financing Statement, (3) permanently enjoin Partain from attempting to collect on the Financing Statement, (4) permanently enjoin Partain from filing more fraudulent financing statements falsely claiming a security interest in State property, and (5) grant the State statutory monetary relief and attorney’s fees and costs. C.R. 29.

The State set a hearing on its request for temporary injunction for December 17, 2024, and all parties received notice (C.R. 21-22) and were present at the hearing (C.R. 201). At the hearing, the Court asked if both parties were amenable to proceeding with a hearing on the State’s request for permanent injunction. R.R. Vol. 2 69:23-70:5. Both parties agreed to proceed with a permanent injunction trial on the merits. C.R. 201; R.R. Vol. 2 69:23-70:5. But before proceeding with the merits, the Court heard argument on Partain’s plea to the jurisdiction. R.R. Vol. 2 11:23-17:11.

On December 19, 2024, the district court signed an order denying Partain’s Plea to the Jurisdiction and Motion to Dismiss (C.R. 203) and entering declaratory judgment for the State (C.R. 202). The district court’s order declared the Financing Statement fraudulent, void, and unenforceable and declared that the State does not owe the debt alleged in the Financing Statement. C.R. 202.

In that order, the district court also granted the State’s request for injunctive relief and enjoined Partain from enforcing or attempting to enforce the security interest alleged in the Financing Statement (preventing Partain from taking actions to interfere with State property and the Texas Permanent School Fund) and further enjoined Partain from filing additional financing statements claiming a security interest in the collateral covered in the Financing Statement or any other State property absent a valid security agreement or judgment lien. C.R. 203.

The district court ordered the release of the Financing Statement and ordered the Texas Secretary of State to file a UCC Financing Statement Amendment terminating the Financing Statement. C.R. 202. The district court attached a proposed UCC Financing Statement Amendment to its order. C.R. 205.

The district court supported its order with findings of fact and conclusions of law. See C.R. 201-03. Specifically, the district court found: (1) Partain filed the Fraudulent Financing Statement with the Texas Secretary of State on October 6, 2023 (C.R. 201); (2) the Financing Statement is groundless and contains a material false statement (C.R. 202); (3) the Financing Statement is not predicated on a security agreement (id.); (4) Partain has no security interest in the collateral listed in the Financing Statement,(id.); (5) Partain attempted to enforce the Financing Statement by attempting to collect or otherwise transfer the property listed in the Financing Statement (id.); and (6) Partain’s attempts to enforce the Financing Statement caused the State imminent and irreparable harm for which there is no adequate remedy at law other than a writ of injunction (C.R. 201-02).

The district court further found Partain knowingly filed the Financing Statement in violation of Texas Business and Commerce Code section 9.5185 (C.R. 201) and Partain’s attempts to collect or otherwise transfer the property covered in the Financing Statement have caused and will continue to cause the State imminent, irreparable harm for *12 which there is no other adequate remedy at law besides a writ of injunction (C.R. 202).

Partain filed a Motion for New Trial, but the district court denied it because “[g]ranting a new trial so that [Partain] can request a jury is pointless.” Supp. C.R. 1033. “As the trial record shows, the State prevails as a matter of law. There are no fact issues for the Court to submit to a jury.” Id. IV. Partain Brought This Appeal.

Partain filed this appeal, seeking to overturn the district court’s order entered against him in its entirety and requests dismissal of the State’s suit with prejudice. Appellant’s Brief at 40. Partain’s appeal is based on his argument that because he proclaims the State committed a taking against him, he has the constitutional right to take State property absent a court order. Appellant’s Brief at 1.

Partain claims “[t]he district court case included no discovery[.]” Appellant’s Brief at 13. This is false. See C.R. 29. “On July 17, 2024, the State served Partain with Plaintiff State of Texas’ First Set of Discovery Requests.” Id. Partain did not respond or serve discovery on the State. See id.

Partain also claims “the district case is not developed” because “the hearings are alleged to have no reporter record available” and “significant amounts of evidence were electronically filed in the court’s “Box” but are “not with the clerk as required by the court.” Appellant’s Brief at 4. This is similarly untrue. See e.g. R.R. Vol. 2 3-5; R.R. Vol. 1 1-8.

SUMMARY OF THE ARGUMENT

This Court should affirm the district court because “[a]s the trial record shows, the State prevails as a matter of law.” Supp. C.R. 1033. The State prevails as a matter of law for several reasons.

First, Partain failed to support his arguments as required by the Texas Rules of Civil Procedure and has, therefore, waived any error that may have existed. TEX. R. APP. P. 38.1(g-i).

Second, the district court properly granted the State’s request for a permanent injunction, release of the Financing Statement, and declaratory relief. This is true for several reasons.

The State had statutory authority and legal standing to sue Partain. See TEX. BUS. & COM. CODE § 9.5185; Heckman v. Williamson Cty., 369 S.W.3d 137, 154-55 (Tex. 2012). The relief the State requested is authorized by statute. TEX. BUS. & COM. CODE§ 9.5185(d).

The evidence supports the Court’s granting of the State’s request for declaratory judgment, release of the Financing Statement, and entry of a permanent injunction. C.R. 201-03; see e.g. R.R. Vol 2 57:18-22. The facts of the proceeding show Partain’s due process rights were not violated in reaching this result. E.g., C.R. 21-22, 201; R.R. Vol. 2 69:23-*15 70:9. No court has found the State committed a taking against Partain. See R.R. Vol 2 57:18-22. The Texas Constitution does not prevent the State from Enforcing the Texas Business and Commerce Code. TEX.

CONST. ART. I SEC. 29.

The State brought the lawsuit against Partain because Partain filed a fraudulent financing statement claiming a security interest in all State property and used that Financing Statement to harass and extort private and public individuals into giving him money. C.R. 29, 91-117; Supp. C.R. 8-11; R.R. Vol. 2 34:9-39:25. This complaint is not moot. See Heckman, 369 S.W.3d at 162; C.R. 8-11. To the extent Partain presents other arguments for reversal, they were not properly raised and preserved at the district court and are therefore not before this Court. TEX. R. APP. P. 33.1. For these reasons, this Court should affirm the district court judgment in full.

STANDARD OF REVIEW

This Court reviews orders granting permanent injunctions under an abuse of discretion standard. Huynh v. Blanchard, 694 S.W.3d 648, 673 (Tex. 2024); City of Corpus Christi v. Five Citizens of Corpus Christi, 103 S.W.3d 660, 662 (Tex. App.—Edinburg 2003, pet. denied). This Court reviews a trial court’s granting of declaratory judgment under the same standards as other judgments and decrees. Ski River Development, Inc. v. McCalla, 167 S.W.3d 121, 133 (Tex. App.—Waco 2005, pet. denied). To determine the proper standard, this Court looks to the procedure used to resolve the issue at trial. Id. This Court reviews a trial court’s findings of fact issued after a bench trial by the same appellate standards as a jury verdict, for legal sufficiency of the evidence. Tex. Outfitters Ltd., LLC v. Nicholson, 572 S.W.3d 647, 653 (Tex. 2019).

ARGUMENT

I. Partain Failed to Adequately Brief His Arguments and, As Such, They Are Not Properly Before This Court.

As a preliminary matter, this Court may uphold the district court’s ruling because Partain failed to support his arguments as required by the Texas Rules of Appellate Procedure and has, therefore, waived any error that may have existed. “Although we liberally construe the arguments in a pro se litigant’s brief, a pro se litigant nevertheless must comply with the Texas Rules of Appellate Procedure.” Stringfellow v. Tex. Dep't of Pub. Safety, No. 15-24-00024-CV, 2025 WL 996361, at *3 (Tex. App.— Austin [15th Dist.] Apr. 3, 2025, pet. filed) (citing Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005)) (“pro se litigants are not exempt from the rules of procedure”).

The Texas Rules of Appellate Procedure require parties to support their statement of facts with references to the record and make a “clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(g-i). Failure to provide citation to the record or citations for legal references constitutes inadequate briefing and waiver.” NexPoint Advisors, L.P. v. *18 United Development Funding IV, 674 S.W.3d 437, 446-47 (Tex. App.— Fort Worth 2023, pet. denied).

“For an issue to be properly before this court, the issue must be supported by argument and authorities and must contain appropriate citations to the record.” Denmon v. Atlas Leasing, 285 S.W.3d 591, 597 (Tex. App.–Dallas 2009, no pet.) (citing TEX. R. APP. P. 38.1(h)). “Bare assertions of error, without argument, authority, or citation to the record waive error.” Denmon, 285 S.W.3d at 597 (citing Sullivan, 943 S.W.2d at 486).

Partain’s brief contains little to no references to the record. See generally Appellant’s Brief. This Court is “not responsible for searching the record for facts that are favorable to the appellant’s position. NexPoint Advisors, L.P., 674 S.W.3d at 446 (citing Hornbuckle v. Cadillac, No. 02-15-00267-CV, 2016 WL 3157569, at *2 (Tex. App.—Fort Worth June 2, 2016, no pet.) (per curiam) (mem. op.).

The citations in Partain’s brief point generally to the Appendix attached to the brief and do not direct this Court to the points of error alleged to have occurred or support his factual assertions. E.g., Appellant’s Brief at 25 (“App. 9 Petition to the Texas Legislature”).

Likewise, Partain’s citations to legal authority are not supported by “a clear and concise argument for the contentions made” but are instead accompanied by unsupported legal conclusions which do not apply the facts of the case to the law cited. E.g., Appellant’s Brief at 37. As such, this Court should consider Partain’s arguments waived and affirm the district court in full.

II. The District Court Properly Granted the State’s Request for a Permanent Injunction, Release of the Financing Statement, and Declaratory Relief.

Each of Partain’s arguments for reversal are based in four incorrect assertions. First, a taking occurred. Appellant’s Brief at 1. Second, because a taking occurred, Partain has the right to take State property without a Court order. Id. at 11. Third, Partain now owns $340 million of State property. Id. at 1. Fourth, the Constitution prohibits the State from taking any action to get it back. Id. at 27. In Partain’s own words, “[b]asically, Texas stole Partain’s property and Partain took it back.” Id. at 1. “Partain could have filed a complete fabrication with the Secretary of State and it wouldn’t have mattered if it was necessary to collect compensation from the state.” Id. at 27. These arguments do not support reversal of the district court’s judgment.

To the contrary, State law prohibits the filing of fraudulent financing statements with the Secretary of State. TEX. BUS. & COM. CODE § 9.5185. Under § 9.5185(a), “a person may not intentionally or knowingly present for filing or cause to be presented for filing a financing statement that the person knows is (1) forged; (2) contains a material false statement; or (3) is groundless.” Id. § 9.5185(a). “An owner of property covered by a fraudulent financing statement described in Subsection (a) also may file suit in a court of suitable jurisdiction requesting specific relief, including, but not limited to, release of the fraudulent financing statement.” Id. § 9.5185(d).

A. The State had authority to sue Partain under § 9.5185.

The State had authority to sue Partain under § 9.5185 because the State is the owner of the property covered in the Financing Statement, (C.R. 202; Supp. C.R. 8-11), and Partain filed the Financing Statement (C.R. 201; TEX. BUS. & COM. CODE § 9.5185(d)). The relief the State requested is authorized by statute. TEX. BUS. & COM. CODE§ 9.5185(d).

Partain also claims the State lacks standing to bring suit against him. Appellant’s Brief at 12. Partain is incorrect.

Standing is a jurisdictional prerequisite to suit that requires a plaintiff plead (1) an injury in fact (2) that is fairly traceable to the defendant’s conduct and (3) is redressable by the court. Heckman, 369 S.W.3d at 154-55. The State fulfills each of these elements.

Partain harassed private companies who work with the State, interfered with the State’s business relationships (R.R. Vol 2 37:17-39:25), and claimed he had already taken millions of dollars of State property (id. at 9:22-25). These are injuries in fact that are traceable to Partain. See Heckman, 369 S.W.3d at 154-55.

The injuries were redressable: the Court remedied the injuries when it enjoined Partain from continuing to attempt to collect on the Financing Statement, ordered the release of the Financing Statement, and declared the Financing Statement fraudulent, void, and unenforceable. C.R. 201-03. As such, the evidence shows that the State fulfills all elements of standing. Heckman, 369 S.W.3d at 154-55. Partain has provided no citations to the record nor accurate legal analysis supporting a contrary conclusion. See generally Appellant’s Brief.

B. Partain violated § 9.5185.

The district court found Partain knowingly filed a fraudulent financing statement with the Secretary of State. C.R. 201; TEX. BUS. & COM. CODE § 9.5185(a). The evidence presented supports this conclusion.

Partain admits he brought an inverse claim against the State and that it was dismissed. C.R. 87. After his takings claim was dismissed but prior to filing the Financing Statement, Partain admits he submitted a miscellaneous claims application to the Texas Comptroller requesting $250 million dollars. R.R. Vol. 2 55:13-22. The Comptroller informed him he was required to obtain a judgment from a Texas court to enforce his right to payment. R.R. Vol 2 57:2-22. Partain admits he does not have such a court order. R.R. Vol 2 57:18-22.

As such, the district court correctly found that the statement in the Financing Statement claiming a security interest in all State property is false and that Partain knew this when he filed the Financing Statement. C.R. 202. Therefore, the district court properly concluded Partain violated § 9.5185 and properly declared the Financing Statement fraudulent, void, and unenforceable and ordered the release of the *23 Financing Statement. TEX. BUS. & COM. CODE §§ 9.5185(a, d); C.R. 201-03.

Partain presents no arguments or facts to support any assertion that the conclusion the district court reached lacks even a scintilla of evidence supporting it. Texas Outfitters Ltd., LLC, 572 S.W.3d at 653. Therefore, this Court should affirm the district court’s granting of declaratory relief and release of the Financing Statement.

C. The district court properly granted the State’s request for permanent injunctive relief.

A party is entitled to a permanent injunction when they plead and prove “(1) a wrongful act; (2) imminent harm; (3) irreparable injury; and (4) no adequate remedy at law.” Leibovitz v. Sequoia Real Estate Holdings, L.P., 465 S.W.3d 331, 350 (Tex. App.—Dallas 2015, no pet.). A district court’s decision to grant a permanent injunction is reviewable by an abuse of discretion standard. Five Citizens of Corpus Christi, 103 S.W.3d at 662.

Partain’s failure to provide citations to the record and accurate legal analysis and support for why any of the district court’s decision was an abuse of discretion is one reason this Court should affirm the district court. See generally Appellant’s Brief; see Texas Outfitters Ltd., LLC, 572 *24 S.W.3d at 653. But more importantly, the evidence showed that Partain violated § 9.5185 (see supra) and that Partain’s actions constituted an imminent and irreparable injury for which there was no adequate remedy at law besides a writ of injunction. C.R. 202.

Partain’s attempts to enforce the Financing Statement included threatening and harassing private entities (R.R. Vol. 2 36:18-39:25), threatening State officials (R.R. Vol. 2 39:6-40:15), and filing fraudulent transfer statements and general warranty deeds (R.R. Vol. 2 27:10-31:3; 44:7-20; 46:1-7; C.R. 91-117). The evidence also showed Partain intended to continue to engage in this behavior absent a Court order. R.R. Vol. 2 41:9-15. As such, the district court properly found Partain committed a wrongful act which has caused and will continue to cause imminent and irreparable injury to the State absent injunctive relief. C.R. 202.

D. Partain’s due process rights were not denied.

Partain claims his due process rights were denied because “[t]he judge misrepresented to Partain that he was not entitled to a jury trial” and did not give him a jury. Appellant’s Brief at 36. To the extent Partain raised these claims in the lower court, the district court properly denied them and this Court should affirm for several reasons.

Partain’s failure to provide any citation to the record or legal authority to support his assertion that the judge “acted without reference to any guiding rules or principles” when finding there was no genuine issue of material fact is another reason this Court should affirm the district court’s ruling. Appellant’s Brief at 36 (internal quotations omitted). But more importantly, the facts of the proceeding show Partain’s due process rights were not violated. E.g., C.R. 21-22, 201; R.R. Vol. 2 69:23-70:9.

First, the judge’s statement was not a misrepresentation. The district court found there was no genuine issue of material fact to present to the jury. Supp. C.R. 1033. A person has no right to a jury trial in the absence of a genuine issue of material fact. Mickens v. Longhorn DFW Moving Inc., 264 S.W.3d 875, 880 (Tex. App.—Dallas 2008, pet. denied) (citing Walden v. Affiliated Computer Serv. Inc., 97 S.W.3d 303, 323-24 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)). Partain has provided no citations to the record nor accurate legal analysis supporting a conclusion that there were genuine issues of material fact. See generally Appellant’s Brief. Thus, the judge’s representation was not incorrect. See id.

Second, even if the judge did “misrepresent” Partain’s rights, a “misrepresentation” by a judge is not a denial of due process. Due process requires notice and an opportunity to be heard. Mosely v. Tex. Health and Hum. Serv. Comm'n, 593 S.W.3d 250, 265 (Tex. 2019). Partain received notice of a hearing (C.R. 21-22), was present at the hearing (C.R. 201), and was heard at the hearing (see generally R.R. Vol 2). Therefore, Partain received due process. See Mosley, 593 S.W.3d at 265.

Third, Partain agreed to proceed with a permanent injunction trial without a jury. R.R. Vol. 2 69:23-70:9. As such, Partain’s due process rights were not denied.

E. The Texas Constitution does not prevent the State from Enforcing the Texas Business and Commerce Code.

Partain claims the United States and Texas Constitutions prevent the State’s action against Partain under § 9.5185. Appellant’s Brief at 13-18. Specifically, Partain claims “there is no order the district court could issue that wouldn’t violate Partain’s right to just and adequate compensation that he has already collected.” Id. at 12. To the extent Partain raised these claims in the lower court, the district court properly denied them and this Court should affirm for several reasons.

1. The State did not take Partain’s property and therefore Partain does not have a right to just compensation.

Over four years ago, Partain brought an inverse condemnation claim in Hidalgo County District Court. Partain v. Eddie Guerra, et al., No. C-0929-12-F (332nd District Ct., Hidalgo County, Tex.). The claims were dismissed with prejudice. C.R. 58-80. Partain admits his claim was dismissed. C.R. 87. As such, when Partain filed the Financing Statement, Partain knew no Court had found a taking had occurred. See id. Because no taking occurred, Partain is not entitled to compensation for a taking. See Harris Cnty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016).

2. Even if the State did take Partain’s property, that does not give Partain a constitutional right to commit fraud.

Even if a taking had occurred (and Partain had properly brought that claim), that fact would not grant Partain the right to file a fraudulent financing statement. Poretto v. Patterson, 251 S.W.3d 701, 708 (Tex. App–Houston [1st Dist] 2007, no pet.). The remedy for a taking is just compensation, not the right to commit fraud. See id. Therefore, to the extent Partain raised his claim in the lower court, the district court properly denied it and this Court should affirm.

3. Article 1 section 29 of the Texas Constitution does not prohibit the State from enforcing the Texas Business and Commerce Code.

Partain claims the Texas Constitution gives him the right to commit fraud if a taking has occurred. Appellant’s Brief at 27. Partain is incorrect.

Article I section 29 declares everything in the Bill of Rights “excepted out of the general power of government, and shall remain forever inviolate, and all laws contrary thereto, or the following provisions shall be void.” TEX. CONST. ART. I SEC. 29. Partain argues this means “statutory law cannot restrain the constitution[s] or Partain’s civil right to compensation, including through Section 9.5185(a) of the Texas Business and Commerce Code, even if Congress, Governor, or Judiciary wanted to.” Appellant’s Brief at 17. This is not true because regulations against committing fraud do not infringe in any way on the right to just compensation. See State v. Loe, 692 S.W.3d 215, 250-53 (Tex. 2024) (Busby, J., concurring) (citing TEX. CONST. ART. I SEC. 29) (describing when section 29 takes effect and prohibits certain legislation).

Partain cites no cases that support this interpretation of section 29. Appellant’s Brief at 17-18. The cases Partain does reference recite vague *29 principles which do not actually support Partain’s interpretation. Id. Partain provides no analysis or application of the facts of this case to the law he cites. Id. Additionally, Partain includes no citations to the record supporting this argument. Id. As such, this argument is both legally incorrect and inadequately briefed such as to be no argument at all. See NexPoint Advisors, L.P., 674 S.W.3d at 446-47. Therefore, to the extent Partain raised this argument in the lower court, the district court properly denied it and this Court should affirm.

F. The State did not sue Partain to reverse Partain’s exercise of his constitutional right to compensation.

First and foremost, as discussed supra, the State did not take Partain’s property. The reason Partain says the lawsuit was brought to “reverse Partain’s exercise of his constitutional right to compensation” is because Partain claims his filing of the fraudulent Financing Statement, transfer statements, general warranty deeds, and harassing of private and public individuals actually gave him ownership of State property. R.R. Vol. 2 9:22-10:13; Appellant’s Brief at 1. Therefore, according to Partain, any attempt by the State to clear the title to its property is actually the State stealing from Partain. R.R. Vol. 2 9:22-10:13; Appellant’s Brief at 30. This is incorrect.

The State brought the lawsuit against Partain because Partain filed a fraudulent financing statement claiming a security interest in all State property and used that Financing Statement to harass and extort private and public individuals into giving him money. C.R. 29, 91-117; Supp. C.R. 8-11; R.R. Vol. 2 34:9-39:25. Such conduct is a criminal violation as well as a civil violation for which the State had full authority to bring suit as the owner of the property covered in the Financing Statement. TEX. BUS. & COM. CODE §§ 9.5185(c-d).

G. The State’s complaint is not moot.

Partain’s claim that the case is moot is based in Partain’s claim that “Partain has already collected the debt[.]” Appellant’s Brief at 33. Partain does not point to where in the record he raised this claim in the lower court. Id. But the extent Partain raised it in the lower court, the district court properly denied it.

A case is moot when there is no controversy for the court to adjudicate. Heckman, 369 S.W.3d at 162. The case is not moot because the State continues to have an interest in the outcome—i.e. that Partain stop trying to enforce the fraudulent Financing Statement which falsely claims a security interest in all State property. C.R. 8-11. Therefore, the *31 issue is not moot. Heckman, 369 S.W.3d at 162. Partain again points to nothing in the record or in the case law that negates the conclusion that the case is not moot. See Appellant’s Brief at 33. As such, this Court should hold the case is not moot and affirm the district court in full.

H. Several of Partain’s points of error are raised for the first time on appeal and are therefore not properly before this court.

A prerequisite for presenting a complaint on appeal is that the complaint must have been made and preserved in the trial court. TEX. R.

APP. P. 33.1.

In his appeal, Partain raises issues of compliance with § 65.001 of the Texas Civil Practice and Remedies Code (Appellant’s Brief at 30), the defense of latches (Appellant’s Brief at 24), claims of extrinsic fraud (Appellant’s Brief at 37), and a supremacy clause defense (Appellant’s Brief at 28). None of these claims were brought or preserved in the lower court. See generally C.R. Partain does not cite to any portions of the record where he presented or preserved these claims. See generally Appellant’s Brief. Therefore, these claims are waived and not before this Court. TEX. R. APP. P. 33.1.

III. Prayer

The district court properly granted the State’s requests for relief. Partain has not presented persuasive evidence or arguments showing the district court’s decisions were an abuse of discretion or unsupported by a scintilla of evidence. To the contrary, the record shows a plethora of evidence and legal support for the Court’s decisions. As such, this Court should affirm the district court’s ruling in its entirety.

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 (512) 475-4392 Deputy Attorney General for Civil FAX: (512) 320-0667 Litigation ali.thorburn@oag.texas.gov

AUSTIN KINGHORN Counsel for Appellee Deputy Attorney General for Civil Litigation

KIMBERLY GDULA Chief, General Litigation Division

CERTIFICATE OF COMPLIANCE

The undersigned counsel certifies that this Appellee Brief complies with Texas Rule of Appellate Procedure 9.4(i). The text a conventional typeface and is set to 14-point font. The total number of words in the document, excluding the Appendix, as calculated by the word count feature of Microsoft Word is 6504.

/S/ Ali Thorburn ALI THORBURN Assistant Attorney General

CERTIFICATE OF SERVICE

This is to certify 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 May 16, 2025, through the Court’s electronic filing system, regular mail, and Certified Mail, Return Receipt Requested.

Johnny Partain Plaintiff –Appellant 7020 N. 16 Street th

McAllen, Texas 78504 CM/RRR#: 9589 0710 5270 0480 2516 92

/S/ Ali Thorburn ALI THORBURN Assistant Attorney General

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 ___________

DEFENDANT STATE OF TEXAS APPENDIX TO APPELLEE’S BRIEF

1. Order Granting Permanent Injunction and Other Relief................ 35 2. Texas Business and Commerce Code § 9.5185 ................................... 40

12/19/2024 09:51:06 AM Velva L. Price District Clerk Travis County D-1-GN-24-002560

35 36 37 38 39 § 9.5185. Fraudulent Filing, TX BUS & COM § 9.5185

Vernon's Texas Statutes and Codes Annotated Business and Commerce Code (Refs & Annos) Title 1. Uniform Commercial Code (Refs & Annos) Chapter 9. Secured Transactions (Refs & Annos) Subchapter E. Filing

V.T.C.A., Bus. & C. § 9.5185

§ 9.5185. Fraudulent Filing

Currentness

(a) A person may not intentionally or knowingly present for filing or cause to be presented for filing a financing statement that the person knows:

(1) is forged; (2) contains a material false statement; or (3) is groundless. (b) A person who violates Subsection (a) is liable to the owner of property covered by the financing statement for: (1) the greater of $5,000 or the owner's actual damages; (2) court costs; and (3) reasonable attorney's fees. (c) A person who violates Subsection (a) also may be prosecuted under Section 37.101, Penal Code.

(d) An owner of property covered by a fraudulent financing statement described in Subsection (a) also may file suit in a court of suitable jurisdiction requesting specific relief, including, but not limited to, release of the fraudulent financing statement. A successful plaintiff is entitled to reasonable attorney's fees and costs of court assessed against the person who filed the fraudulent financing statement. If the person who filed the fraudulent financing statement cannot be located or is a fictitious person, the owner of the property may serve the known or unknown defendant through publication in a newspaper of general circulation in the county in which the suit is brought.

Credits Added by Acts 1999, 76th Leg., ch. 414, § 1.01, eff. July 1, 2001.

40 U.S. Government Works. © 2025 Thomson Reuters. No claim to original 1

§ 9.5185. Fraudulent Filing, TX BUS & COM § 9.5185

V. T. C. A., Bus. & C. § 9.5185, TX BUS & COM § 9.5185 Current through the end of the 2023 Regular, Second, Third and Fourth Called Sessions of the 88th Legislature, and the Nov. 7, 2023 general election.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

41 U.S. Government Works. © 2025 Thomson Reuters. No claim to original 2

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: 100934542 Filing Code Description: Brief Not Requesting Oral Argument Filing Description: Appellee Brief Status as of 5/16/2025 1:49 PM CST

Associated Case Party: JOHNNYPARTAIN Name BarNumber Email TimestampSubmitted Status Johnny Partain partain@atlastechnologies.biz 5/16/2025 1:00:47 PM SENT Associated Case Party: STATE OF TEXAS Ali Thorburn Assistant Attorney General Name BarNumber Email TimestampSubmitted Status Ali Thorburn ali.thorburn@oag.texas.gov 5/16/2025 1:00:47 PM SENT Zachary L.Rhines zachary.rhines@oag.texas.gov 5/16/2025 1:00:47 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Ariana Ines ariana.ines@oag.texas.gov 5/16/2025 1:00:47 PM SENT