Response to Plaintiff's Motion to Set Evidentiary Hearing¶
Bass v. D'Agostino and McSween, No. DC-2025-CV-1817 / No. 15-26-00132-CV · 2026-04-29 · PDF
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Filed 4/29/2026 1:29 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 TO PLAINTIFF’S MOTION TO SET EVIDENTIARY HEARING TO THE HONORABLE JUDGE OF SAID COURT: Defendants file this Response to Plaintiff’s Motion to Set Evidentiary Hearing and respectfully show: Defendants do not oppose the Court setting Plaintiff’s Sworn Motion Under Rule 306a(5) and Motion for New Trial for hearing or submission at the Court’s convenience. Defendants likewise do not oppose the proposed setting of May 14, 2026, or another date selected by the Court. Defendants do, however, oppose Plaintiff’s request for a broad “evidentiary hearing” as framed. Rule 306a(5) presents a narrow, threshold issue—whether and when a party received notice or acquired actual knowledge of the judgment. It does not authorize reopening the record to introduce new evidence on the merits or to re-litigate issues already decided by the Court. Copy from re:SearchTX TB Plaintiff asserts that an evidentiary hearing is required because Rule 306a(5) requires proof “in the trial court.” But Texas courts routinely resolve Rule 306a issues based on sworn filings, declarations, and the existing record where, as here, the relevant facts concerning notice and actual knowledge are not genuinely disputed. Nor does the rule entitle a movant to present live testimony where the material facts are established by the movant’s own sworn filings. Here, Plaintiff’s own filings establish that he had actual notice that service to him was failing well before the Court’s ruling and took no action to correct it. The parties’ dispute is therefore legal, not factual, and does not require the development of additional testimony. Plaintiff’s request for an evidentiary hearing would improperly expand this narrow procedural inquiry into a broader re-litigation of issues the Court has already resolved. Under these circumstances, no live testimony or further evidentiary development is warranted. If the Court determines that a hearing would assist in resolving the motion, any such hearing should be strictly limited to the Rule 306a(5) issues concerning notice and actual knowledge. Accordingly, Defendants respectfully request that the Court deny Plaintiff’s request for a broad evidentiary hearing and, if a hearing is set, limit it to the narrow Rule 306a issues presented. 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 Copy from re:SearchTX 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 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 29th 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 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: 114263350 Filing Code Description: RSPN - Response Filing Description: 20260429_Defendants Response to Plaintiffs Motion to Set Evidentiary Hearing Status as of 4/29/2026 1:31 PM CST Associated Case Party: Darrin D'Agostino Name BarNumber Email TimestampSubmitted Status Karla Gutierrez karla.gutierrez@oag.texas.gov 4/29/2026 1:29:17 PM SENT Scott D. Smith scott.smith@oag.texas.gov 4/29/2026 1:29:17 PM SENT Associated Case Party: Kevin Bass Name Kevin N. Bass Copy from re:SearchTX BarNumber Email TimestampSubmitted Status kbassphiladelphi@gmail.com 4/29/2026 1:29:17 PM ERROR