Reply in Support of Motion to Set Evidentiary Hearing¶

Bass v. D'Agostino and McSween, No. DC-2025-CV-1817 / No. 15-26-00132-CV · 2026-05-04 · PDF

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

Filed 5/4/2026 8:48 AM
Sara L. Smith
Lubbock County - 237th District Court
Lubbock County, Texas

CAUSE NO. DC-2025-CV-1817
KEVIN N. BASS,

§ IN THE DISTRICT COURT
§ OF LUBBOCK COUNTY, TEXAS
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§ 237th JUDICIAL DISTRICT
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Plaintiff,
v.
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.

PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO SET
EVIDENTIARY HEARING ON SWORN MOTION UNDER RULE 306a(5)
AND MOTION FOR NEW TRIAL UNDER RULE 329b
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff Kevin N. Bass replies to Defendants’ Response to Plaintiff’s Motion to Set Evidentiary Hearing, filed April 29, 2026 (“Response”), and respectfully shows the following. Plaintiff
incorporates by reference his Reply in Support of Sworn Motion Under Rule 306a(5) and Motion
for New Trial Under Rule 329b, filed April 23, 2026, and the authorities and forensic record cited
therein.
I.
POINTS OF AGREEMENT AND CURRENT POSTURE
Defendants do not oppose setting Plaintiff’s Sworn Motion Under Rule 306a(5) and Motion for
New Trial for hearing. Defendants do not oppose the proposed setting of May 14, 2026, or another

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date selected by the Court. (Resp. at 1.) Since Defendants filed their Response, the Court has
placed this matter on its Motions Docket for Thursday, May 21, 2026, at 9:00 a.m. Central Time.
(re:SearchTX Hearing ID 8020b55d-5a77-4484-8569-83cc13a5541f.) Those concessions and the
Court’s setting resolve the threshold issues of whether and when a hearing should occur.
The remaining disputes are (1) whether the May 21 hearing must be evidentiary or may be
conducted on the papers; (2) the scope of the matters properly before the Court at the hearing; and
(3) whether Defendants’ competing proposed order should be filed on the docket.
II.
CONTROLLING TEXAS SUPREME COURT AND SEVENTH COURT AUTHORITY
REQUIRES AN EVIDENTIARY HEARING
Defendants assert that “Texas courts routinely resolve Rule 306a issues based on sworn filings,
declarations, and the existing record.” (Resp. at 2.) Defendants cite no authority for that proposition
because the controlling authority is the other way.
A. The Texas Supreme Court Requires Trial Courts to Hold a Rule 306a Hearing.
In Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994) (per curiam), the Texas Supreme Court conditionally granted mandamus where a trial court refused to hold a Rule 306a hearing on a sworn
motion to determine the date of notice. The Court held: “The trial court clearly abused its discretion. … Such a party is required to prove the date of notice in the trial court, and the trial court
is required to hold a hearing and make the requested finding.” Id. at 132 (emphasis added). The
directive is mandatory.
The Texas Supreme Court has reaffirmed this procedural mechanism. In In re Lynd Co.,
195 S.W.3d 682, 685 (Tex. 2006) (per curiam), the Court held that the sworn motion under Rule
306a(5) “establishes a prima facie case that the party lacked timely notice and invokes a trial court’s
otherwise-expired jurisdiction for the limited purpose of holding an evidentiary hearing to determine the date on which the party or its counsel first received notice or acquired knowledge.” Id.
(emphasis added). The trial court in Lynd held precisely such a hearing, and the Court relied on the
live testimony of the movant’s president and his secretary in implying the date-of-notice finding.
Id. at 686–87.
The earlier controlling authority is to the same effect. In Memorial Hospital of Galveston
County v. Gillis, 741 S.W.2d 364 (Tex. 1987) (per curiam), the Court held that a Rule 306a movant
must “prove in the trial court, on sworn motion and notice, the date on which the party or his
attorney first either received a notice of the judgment or acquired actual knowledge of the signing.”
Id. at 365 (emphasis added). The Court vacated the order in Gillis because the record contained
“nothing . . . to indicate that the trial court considered” the relevant evidence “at the hearing”
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and no statement of facts demonstrated that the movant had “sustained her burden of proof at the
reinstatement hearing.” Id.
Texas appellate courts — including the Seventh Court of Appeals, within whose jurisdiction
this Court sits — have applied this rule with consistency. See Nathan A. Watson Co. v. Employers
Mut. Cas. Co., 218 S.W.3d 797, 800 (Tex. App.—Fort Worth 2007, no pet.) (Rule 306a sworn
motion “invokes a trial court’s otherwise-expired jurisdiction for the limited purpose of holding an
evidentiary hearing”); Cont’l Cas. Co. v. Davilla, 139 S.W.3d 374, 379 (Tex. App.—Fort Worth
2004, pet. denied) (same; live testimony elicited at the hearing from district clerk and claims
specialists); Corniello v. State Bank & Trust, 344 S.W.3d 601, 605 (Tex. App.—Dallas 2011, no
pet.) (same); Strong v. Brooks, No. 07-21-00004-CV, 2022 Tex. App. LEXIS 562, at *3 (Tex.
App.—Amarillo Jan. 26, 2022, no pet.) (mem. op.) (Seventh Court reversal where Rule 21a
presumption of notice was negated by proof of non-receipt and the record contained “no evidence
that Strong received notice of the trial setting”).
B. The Question Is Factual, Not Legal, and Turns on Credibility.
Defendants frame the dispute as “legal, not factual.” (Resp. at 2.) That characterization inverts the
inquiry. The Rule 306a(4) determination — when Plaintiff first received notice and when Plaintiff
first acquired actual knowledge of the signing — is a pure question of historical fact that, where
contested, turns on credibility. Texas appellate courts review the trial court’s Rule 306a finding
under “the legal and factual sufficiency standards of review.” Texaco, Inc. v. Anh Thi Phan, 137
S.W.3d 763, 767 (Tex. App.—Houston [1st Dist.] 2004, no pet.). And in Shull v. United Parcel
Service, 4 S.W.3d 46, 51 (Tex. App.—San Antonio 1999, pet. denied), the appellate court affirmed
because “the trial court, acting a factfinder, judged the credibility of the witnesses and information provided” at the new-trial hearing. (Emphasis added.) The procedure is evidentiary precisely
because the question is factual and credibility-bound.
C. Defendants’ Cite-Free “Courts Routinely” Assertion Is Unsupported.
Defendants ask the Court to resolve a contested factual question on the papers without identifying
a single Texas case in which a trial court did so over the movant’s request for a hearing. There is no
such case. To the contrary, where a trial court has refused to hold the Rule 306a hearing the Texas
Supreme Court has issued mandamus to compel it. See Cantu, 878 S.W.2d at 132.
Defendants drafted their April 29 Response with Plaintiff’s April 23, 2026 Reply in Support
of Sworn Motion Under Rule 306a(5) and Motion for New Trial in front of them. That Reply, on the
docket six days before Defendants filed their Response, marshals the controlling 2024–2025 Texas
Supreme Court authority on actual-versus-constructive knowledge (Red Bluff, LLC v. Tarpley, 713
S.W.3d 412 (Tex. 2025); Tabakman v. Tabakman, No. 24-0919 (Tex. Dec. 5, 2025)), the rule that

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“any doubts about a default judgment must be resolved against the party who secured the default”
— a principle Lakeside expressly extends “more broadly than doubts about service” (In re Lakeside
Resort JV, LLC, 689 S.W.3d 916, 922 (Tex. 2024)), and the dispositive-hearing due-process rule
of Mabon Ltd. v. Afri-Carib Enterprises, Inc., 369 S.W.3d 809, 813 (Tex. 2012) (per curiam).
Defendants’ Response engages none of these authorities and offers no contrary controlling authority.
The asserted “courts routinely” proposition is contradicted by the very authorities Defendants chose
not to address.
III.
THE QUESTIONS ARE FACTUAL AND CREDIBILITY-BOUND
Defendants’ merits position is that “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.” (Resp. at
2.) That position presents a contested question of subjective fact. Under Rule 306a(4), the trigger is
actual knowledge of the signing of the order — and “[t]o acquire actual knowledge of information,
a person must in fact become subjectively aware of the information. That the information was
available to the person does not establish his actual knowledge, even if he reasonably should have
become aware of it.” Red Bluff, LLC v. Tarpley, 713 S.W.3d 412, 415 (Tex. 2025) (per curiam)
(citation omitted); accord LDF Construction, Inc. v. Texas Friends of Chabad Lubavitch, Inc., 459
S.W.3d 720, 725 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (“The rules do not impose a
prerequisite obligation on the party to inquire about whether an order has been signed.”); Tabakman
v. Tabakman, No. 24-0919 (Tex. Dec. 5, 2025) (per curiam). Plaintiff’s April 23 Reply MNT §III
sets forth the full doctrinal framework. The point for present purposes is procedural: contested
subjective awareness is credibility-bound and cannot be resolved on the papers in Defendants’ favor
without affirmative evidence taken at a hearing. Cf. Mathis v. Lockwood, 166 S.W.3d 743, 745
(Tex. 2005) (per curiam) (“Even if the trial judge disbelieved Mathis’s testimony, that would not
provide affirmative evidence that service occurred.”).
IV.
DUE PROCESS REQUIRES THE OPPORTUNITY TO BE HEARD WHERE THE
ADVERSE PARTY’S THEORY IS A CREDIBILITY ATTACK
Where the adverse party seeks to defeat a Rule 306a motion by attacking the movant’s credibility
on subjective knowledge, due process requires the movant be permitted to be heard and examined.
Federal due process requires “notice reasonably calculated, under the circumstances, to apprise
interested parties of the pendency of the action and afford them the opportunity to present their
objections.” Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988) (quoting Mullane v. Cent.

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Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). The Texas Supreme Court has applied
that requirement to any “dispositive hearing” entered without the non-moving party’s participation.
Mabon Ltd. v. Afri-Carib Enterprises, Inc., 369 S.W.3d 809, 813 (Tex. 2012) (per curiam). And the
principle that “any doubts about a default judgment must be resolved against the party who secured
the default” extends “more broadly than doubts about service.” In re Lakeside Resort JV, LLC, 689
S.W.3d 916, 922 (Tex. 2024). Plaintiff’s April 23 Reply MNT §VI sets forth the full Peralta /
Lopez / Mathis / Mabon / LBL Oil / Lakeside framework, including the Seventh Court’s application
of the rule in McDaniel v. Hale, 893 S.W.2d 652 (Tex. App.—Amarillo 1994, writ denied), and
Strong v. Brooks, No. 07-21-00004-CV, 2022 Tex. App. LEXIS 562 (Tex. App.—Amarillo Jan. 26,
2022, no pet.) (mem. op.). Resolving Plaintiff’s contested actual-knowledge date on the papers, in
Defendants’ favor, would invert the Lakeside tiebreaker and deny Plaintiff the Peralta opportunity
to be heard.
V.
SCOPE: 306a AND THE 329b MOTION IT MAKES TIMELY ARE BOTH PROPERLY
BEFORE THE COURT
Plaintiff agrees that the hearing’s scope is set by what is properly before the Court. The Sworn
Motion presents (1) the Rule 306a(5) determination of the date Plaintiff first received notice and
the date he first acquired actual knowledge, and (2) the Motion for New Trial under Rule 329b. As
Plaintiff’s Reply in Support of the Sworn Motion (filed April 23, 2026) establishes, the Motion for
New Trial is timely under Rule 329b(a) on its face — independent of any Rule 306a(5) finding —
because Plaintiff filed it eight days after the March 26 signing, well within the thirty-day window.
The Rule 306a(5) finding is properly sought as a record-preservation measure under Texas Rule of
Appellate Procedure 4.2(c). Both grounds are properly evidentiary.
Defendants’ competing proposed order would restrict the hearing to “narrow Rule 306a(5)
issues” only, foreclosing the development of any record on the Rule 329b grounds the Sworn Motion
already places before the Court. That restriction has no basis in the rules. Once the Court reaches the
Rule 329b grounds — including the Peralta/Lopez/Mathis/Mabon due-process grounds the Sworn
Motion presents — reaching the merits of those grounds is not “re-litigation”; it is the relief Rule
329b authorizes. Treating Rule 329b new-trial review as forbidden re-litigation would collapse the
rule itself.
What the hearing properly will not relitigate is the substance of the Court’s prior Plea-tothe-Jurisdiction ruling on its own terms. Plaintiff does not seek to do so. The Sworn Motion seeks
Rule 329b new-trial relief on independently sufficient due-process grounds.

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VI.
ANTICIPATED EVIDENCE
To assist the Court in setting the hearing, Plaintiff identifies the categories of evidence he will
present:
1. Plaintiff’s testimony. Plaintiff will testify to his subjective knowledge state on the dates
relevant under Red Bluff ’s subjective-awareness standard — specifically, on March 26
(the signing date), April 2 (the date of his re:SearchTX docket discovery), and April
3, 2026, at 12:15 a.m. Central Time (the time of the FDB52DC0.zip eFileTexas download corroborating that discovery on the forensic record). The questions are credibilitybound and require live examination.
2. The FDB52DC0.zip forensic record. The eFileTexas zip-package download identified by Order number fdb52dc0-204e-46f1-a4c6-fde614a3b931 and Zip Reference
number 7736a2c5-5cd1-4845-ba72-b58e46365846, with file-system modification time
00:15:45 Central Time on April 3, 2026, and SHA-256 digest fbe7ca4c2e6c1608bcc6f
ff96885f6248b4fef46a853a36f913815304ad466b5 — fixing the outer bound of Plaintiff’s actual knowledge as a matter of machine-generated record. This evidence is described in detail in Plaintiff’s April 23 Reply Supplemental Declaration and the Exhibit
H Metadata document.
3. The eFileTexas service-error documentary record.
The Automated Certificates of eService on multiple filings have shown service to Plaintiff at
“kbassphiladelphi@gmail.com” — a misspelled, nonexistent address (omitting
the second “a” in “philadelphia”) that originated in the Court’s case-management
system rather than Plaintiff’s eFileTexas user profile. The error has continued to
produce ERROR-status entries through the most recent filings: Plaintiff’s April 28,
2026 Motion to Set Evidentiary Hearing (Envelope 114179135) and Defendants’ April
29, 2026 Response (Envelope 114263350) both reflect ERROR status. The defect
was the subject of Plaintiff’s April 14, 2026 Notice of Correction of Case Contact
Information.
4. Counsel’s direct-email-channel record. AAG Scott D. Smith’s January 26, 2026
email in this state case acknowledging that “Service via this email is fine” (Reply
Ex. K), and counsel’s continuing direct-email correspondence with Plaintiff at the correct address through March 30, 2026 (Reply Exs. F-1 through F-4), bearing on the
Mathis/Ewton analysis of whether Defendants’ continued reliance on the failing eFileTexas channel — when they held and used the correct direct-email channel — was ser-

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vice “reasonably calculated . . . to apprise” Plaintiff of the proceedings under Mullane
and Peralta.
5. Cross-examination of any defense witness or affiant Defendants may offer to support
their assertion that Plaintiff had actual knowledge of the signing prior to April 2, 2026.
VII.
ANY COMPETING PROPOSED ORDER SHOULD BE FILED ON THE DOCKET
The parties have submitted competing proposed orders on this Motion. Plaintiff’s Proposed Order Setting Evidentiary Hearing is on the docket via the eFileTexas “Proposed Order” filing code
(ORSH1, Envelope 114179432, accepted April 29, 2026). Defendants’ competing proposed order,
titled “Order on Motion to Set Evidentiary Hearing,” was transmitted to the District Clerk by email
of Karla Gutierrez to Brittany Deatherage on April 29, 2026, with copy to Plaintiff and to Scott D.
Smith, Assistant Attorney General. Defendants’ competing order is not on the docket.
Texas Rule of Civil Procedure 21 requires every “pleading, plea, motion, or application to
the court for an order” to be “filed with the clerk of the court in writing.” Tex. R. Civ. P. 21(a). A
competing proposed order, by its nature, is an application to the court for an order, and the docket is
the public record of what is properly before the Court. The eFileTexas system is designed to receive
proposed orders through the dedicated “Proposed Order” filing code, and Plaintiff’s competing
order has already been received and entered through that mechanism. Plaintiff respectfully suggests
that any competing proposed order considered by the Court should be tendered through the same
channel so the record reflects both submissions and the basis for the Court’s selection between
them.
VIII.
CONCLUSION AND PRAYER
The May 21, 2026, 9:00 a.m. Central Time setting on the Court’s Motions Docket should be confirmed as an evidentiary hearing, properly scoped to the Sworn Motion under Rule 306a(5) and the
Motion for New Trial under Rule 329b that the Sworn Motion already places before the Court.
Plaintiff respectfully requests that the Court (1) confirm that the hearing set for May 21,
2026, at 9:00 a.m. Central Time is an evidentiary hearing on Plaintiff’s Sworn Motion Under Rule
306a(5) and Motion for New Trial Under Rule 329b, conducted by Zoom videoconference or in
person as the Court may direct; (2) direct the Clerk of this Court and the district’s case-managementsystem administrator to transmit notice of the hearing setting — and all subsequent notices in this
cause — to Plaintiff in parallel through the eFileTexas electronic filing system and by direct email to
kbassphiladelphia@gmail.com, and to continue to do so until the Automated Certificate of eService

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reports Plaintiff’s status as “SENT” to the correct email address; (3) direct that any competing
proposed order considered by the Court in this matter be filed on the docket through the eFileTexas
“Proposed Order” filing code; and (4) grant such other and further relief to which Plaintiff may be
justly entitled.
Respectfully submitted,
/s/ Kevin N. Bass
KEVIN N. BASS, PhD, MS

Telephone: (512) 333-4092
Email: kbassphiladelphia@gmail.com
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Reply was served on the following
counsel of record via the eFileTexas electronic filing system and via direct email on this 4th day of
May, 2026:
Scott D. Smith
Assistant Attorney General
Office of the Attorney General of Texas
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Email: scott.smith@oag.texas.gov

Karla Gutierrez
Office of the Attorney General of Texas
Email: karla.gutierrez@oag.texas.gov

Tristan Garza
Office of the Attorney General of Texas
Email: tristan.garza@oag.texas.gov

/s/ Kevin N. Bass
KEVIN N. BASS
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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.

Envelope ID: 114419400
Filing Code Description: RSPN - Response
Filing Description: Reply in Support of Motion to Set Evidentiary Hearing
on Sworn Motion Under Rule 306a(5) and Motion for New Trial Under
Rule 329b
Status as of 5/4/2026 8:57 AM CST
Case Contacts
Name

BarNumber Email

TimestampSubmitted Status

Tristan AGarza

tristan.garza@oag.texas.gov

5/4/2026 8:48:18 AM

SENT

Karla Gutierrez

karla.gutierrez@oag.texas.gov

5/4/2026 8:48:18 AM

SENT

Scott D. Smith

scott.smith@oag.texas.gov

5/4/2026 8:48:18 AM

SENT

Kevin N. Bass

kbassphiladelphi@gmail.com

5/4/2026 8:48:18 AM

ERROR

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