Response in Opposition to Plaintiff's Motion for New Trial¶

Bass v. D'Agostino and McSween, No. DC-2025-CV-1817 / No. 15-26-00132-CV · 2026-04-14 · PDF

Text extracted from the PDF; scanned pages were read by OCR. The PDF is the authoritative copy.

Filed 4/14/2026 3:28 PM
Sara L. Smith
Lubbock County - 237th District Court
Lubbock County, Texas

CAUSE NO. DC-2025-CV-1817
KEVIN N. BASS,
Plaintiff,
vs.
DARRIN D’AGOSTINO, D.O.,
M.P.H., M.B.A., in his official capacity
as Provost and Executive Vice
President of Academics of Texas Tech
University Health Sciences Center; and
AMANDA McSWEEN, in her official
capacity as Managing Director of
Enrollment Services and University
Registrar of Texas Tech University
Health Sciences Center,
Defendants.

§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§

IN THE DISTRICT COURT

OF LUBBOCK COUNTY, TEXAS

237th JUDICIAL DISTRICT

DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S SWORN MOTION
UNDER RULE 306a(5) AND MOTION FOR NEW TRIAL
TO THE HONORABLE JUDGE OF SAID COURT:
Defendants file this Response to Plaintiff’s Sworn Motion Under Rule 306a(5) and Motion
for New Trial and respectfully show as follows:
I.

INTRODUCTION

Plaintiff asks the Court to set aside its Order granting Defendants’ Plea to the Jurisdiction
based on an alleged lack of notice. Plaintiff’s motion rests on the premise that he was unaware of
filings and the Court’s ruling due to a defect in the electronic service system. The record, however,
demonstrates that Plaintiff was aware of that defect at the time it arose and simply failed to act.
On March 3, 2026, Plaintiff received system-generated notifications advising that service
to him was undeliverable and identifying the precise error in his email address. That notice put
Plaintiff on clear alert that his ability to receive filings in this case had been compromised. Yet he

Copy from re:SearchTX

TB

did not log in to his eFileTexas account, correct his contact information, or notify the Court or
opposing counsel of any issue. Instead, he took no action and now seeks to convert that inaction
into a basis to undo an adverse ruling.
Texas courts have long held that Rule 306a does not protect a party who fails to exercise
diligence after receiving information that would lead a reasonable person to inquire further. See
Mem’l Hosp. v. Gillis, 741 S.W.2d 364, 365–66 (Tex. 1987). When the record is viewed as a
whole, Plaintiff’s motion reflects a failure to maintain his own contact information rather than any
defect in the proceedings. For that reason, and for the additional reasons set forth below, the
Motion should be denied.
II.

BACKGROUND

Plaintiff actively participated in this case leading up to the Court’s ruling. On March 3,
2026, he filed a 78-page response to Defendants’ Plea to the Jurisdiction along with an amended
pleading. The same day, the eFileTexas system generated notifications stating that electronic
service to Plaintiff was undeliverable and identified his email address in truncated form. The
notification further instructed that the document should be served by a different method.
Thus, as of March 3, 2026, Plaintiff knew that there was a problem with service to his email
address and that filings in the case might not be reaching him. Despite that knowledge, he did not
take any steps to correct his email address, update his service contacts, or otherwise ensure that he
would continue receiving filings. The case then proceeded in the ordinary course, and on March
26, 2026, the Court signed the Order granting Defendants’ Plea to the Jurisdiction.
This sequence of events is critical. It establishes that any breakdown in communication
was not hidden from Plaintiff but instead was expressly brought to his attention at the time it
occurred. The dispositive question is whether a party who is alerted to a defect and declines to

2

Copy from re:SearchTX

address it may later rely on that same defect to obtain relief. Texas law answers that question in
the negative.
III.
A.

ARGUMENT AND AUTHORITIES

Plaintiff is Not Entitled to Relief Under Rule 306a
Rule 306a extends deadlines only when a party neither receives notice nor acquires actual

knowledge of a judgment within the prescribed time. The rule does not apply when the party has
information that would lead a reasonably prudent person to inquire further into the status of the
case. The Texas Supreme Court’s decision in Mem’l Hosp. v. Gillis is instructive. There, the Court
held that a party who has knowledge of facts that would prompt a reasonable inquiry cannot rely
on Rule 306a to extend deadlines. 741 S.W.2d at 365–66. In other words, once a litigant is on
notice that something may be amiss, diligence is required.
That principle applies squarely here, and it controls the outcome. Plaintiff received notice
that service to his email address was failing and was informed of the precise defect. A reasonable
litigant, upon receiving that information, would have taken immediate steps to verify and correct
his contact information or to monitor the docket directly. Plaintiff did neither.
Texas courts have consistently rejected Rule 306a relief in similar circumstances where the
movant had information that should have prompted further inquiry. See, e.g., In re Lynd Co., 195
S.W.3d 682, 685 (Tex. 2006) (orig. proceeding) (explaining that Rule 306a relief depends on
compliance with the rule’s notice and timing requirements and does not extend deadlines absent
the required showing); John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 741–42 (Tex. 2001)
(per curiam) (explaining that Rule 306a extends deadlines only upon proof of late notice or actual
knowledge as required by the rule).

3

Copy from re:SearchTX

Under these authorities, Plaintiff’s knowledge of the service defect defeats his reliance on
Rule 306a. The rule does not extend deadlines or reopen judgments for parties who ignore
information that would have allowed them to protect their rights.
B.

Plaintiff’s Lack of Diligence Independently Defeats His Motion
Even if Rule 306a were implicated, Plaintiff’s motion fails for lack of diligence. A party

seeking to set aside a judgment must demonstrate that he acted reasonably under the circumstances.
When the movant’s own inaction contributes to the alleged lack of notice, relief is not warranted.
The Texas Supreme Court has emphasized that litigants have a duty to monitor their cases and to
take reasonable steps to protect their interests. See In re Lynd Co., 195 S.W.3d at 685. That duty
applies with particular force when the party has been alerted to a specific problem affecting notice.
Here, Plaintiff controlled his own eFileTexas account and received explicit notice that
service to his email address was failing. Rather than correct the problem, he took no action. This
lack of diligence precludes relief. Courts do not set aside judgments where the movant’s own
failure to act is the cause of the alleged lack of notice. In this respect, Plaintiff’s motion seeks to
shift responsibility for his own inaction to Defendants and the Court. Texas law does not permit
that shift. The obligation to maintain accurate contact information and to respond to known issues
rests with the litigant, not opposing counsel or the Court.
C.

Defendants Complied with Rule 21a and Had No Additional Duty
Plaintiff’s argument that Defendants should have taken additional steps to ensure service

is inconsistent with Rule 21a. Defendants served their filings through the eFileTexas system, an
authorized method of service under the Texas Rules of Civil Procedure.

4

Copy from re:SearchTX

Rule 21a does not impose a duty on a party to verify the accuracy of another party’s service
contact information or to ensure actual receipt beyond the electronic filing system. Nor does it
require counsel to troubleshoot a pro se litigant’s account or correct errors in that litigant’s profile.
The law instead places responsibility on each party to maintain accurate service information.
Plaintiff’s attempt to impose additional obligations on Defendants finds no support in the rules or
in Texas case law. The service procedures employed in this case were proper, and no further action
was required.
D.

Plaintiff Was Not Denied Due Process
Plaintiff’s due process argument similarly fails when examined against the record. Due

process requires notice and an opportunity to be heard, not perfection in the mechanics of service.
The United States Supreme Court has held that due process is satisfied where a party is afforded a
meaningful opportunity to present his case. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80,
84–86 (1988). Here, Plaintiff had that opportunity. He filed a comprehensive 78-page response
addressing Defendants’ Plea to the Jurisdiction.
Plaintiff’s assertion that he did not receive Defendants’ Reply or the Notice of Submission
does not establish a constitutional violation. There is no right to file a sur-reply absent leave of
court, and a movant may request submission without oral hearing. Plaintiff does not identify any
argument he was prevented from making or any evidence he was unable to present. In short,
Plaintiff received the process that was due. His disagreement with the outcome does not transform
routine procedural events into a constitutional deprivation.
E.

Plaintiff Has Not Demonstrated Harm or Grounds for a New Trial
A motion for new trial requires a showing that the alleged error probably caused the

rendition of an improper judgment. Plaintiff has not made that showing. He does not identify newly

5

Copy from re:SearchTX

discovered evidence, nor does he point to any argument that would alter the Court’s jurisdictional
analysis. Instead, he seeks a second opportunity to litigate issues that have already been fully
briefed. Texas courts do not grant new trial motions based on mere dissatisfaction with the
outcome, absent a showing that the complained-of error probably caused an improper judgment.
See Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984) (recognizing that a motion for new trial
is addressed to the trial court’s discretion and requires a sufficient showing under governing
standards). Plaintiff’s motion falls squarely within that category. Without a showing of harm, there
is no basis to set aside the Court’s Order.
IV.

CONCLUSION

Plaintiff’s motion rests on a premise the record does not support. He was expressly alerted
to a defect in his service information, understood that it affected his ability to receive filings, and
chose not to correct it. That sequence matters. Texas law requires diligence when a party is placed
on notice of a problem, and Plaintiff’s failure to act defeats his request for relief.
In sum, Plaintiff seeks to convert a problem he recognized into a basis for undoing an
adverse ruling. The eFileTexas system did not silently fail; it identified the error and warned that
service was not reaching him. Having ignored that notice, Plaintiff cannot recast his own inaction
as a lack of notice or a denial of due process. The rules do not permit a litigant to manufacture
reversible error from circumstances he could have readily corrected.
When the governing standards are applied to these facts, the result is straightforward.
Plaintiff has not satisfied Rule 306a, has not demonstrated diligence, and has not shown harm.
Accordingly, Plaintiff’s motion should be denied in its entirety.

6

Copy from re:SearchTX

V.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request that the
Court deny Plaintiff’s Sworn Motion Under Rule 306a(5) and Motion for New Trial and grant all
further relief to which Defendants are justly entitled.
Respectfully submitted,
KEN PAXTON
Attorney General
BRENT WEBSTER
First Assistant Attorney General
RALPH MOLINA
Deputy First Assistant Attorney General
AUSTIN KINGHORN
Deputy Attorney General for Civil Litigation
KIMBERLY GDULA
Chief, General Litigation Division
/s/ Scott D. Smith
SCOTT D. SMITH
Assistant Attorney General
Texas Bar No. 24011874
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711−2548
Telephone: (512) 917-3132
Division Fax: (512) 477-2348
Email: scott.smith@oag.texas.gov
Counsel for Defendants

7

Copy from re:SearchTX

CERTIFICATE OF SERVICE
This will certify that a true and correct copy of the foregoing instrument was served in
accordance with Rule 21a of the Texas Rules of Civil Procedure upon the counsel of record below
on this 14th day of April 2026.
Kevin N. Bass

Via E-File and E-Mail

Phone: 512-333-4092
Email: kbassphiladelphia@gmail.com
Pro Se Plaintiff
/s/ Scott D. Smith
SCOTT D. SMITH
Assistant Attorney General

8

Copy from re:SearchTX

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.
Karla Gutierrez on behalf of Scott Smith
Bar No. 24011874
karla.gutierrez@oag.texas.gov
Envelope ID: 113642659
Filing Code Description: RSPN - Response
Filing Description: 20260414_Defendants Response in Opposition to Ps
Motion for New Trial
Status as of 4/14/2026 3:37 PM CST
Associated Case Party: Darrin D'Agostino
Name

BarNumber Email

TimestampSubmitted Status

Tristan AGarza

tristan.garza@oag.texas.gov

4/14/2026 3:28:23 PM

SENT

Karla Gutierrez

karla.gutierrez@oag.texas.gov

4/14/2026 3:28:23 PM

SENT

Scott D. Smith

scott.smith@oag.texas.gov

4/14/2026 3:28:23 PM

SENT

Associated Case Party: Kevin Bass
Name
Kevin N. Bass

Copy from re:SearchTX

BarNumber

Email

TimestampSubmitted

Status

kbassphiladelphi@gmail.com

4/14/2026 3:28:23 PM

ERROR