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Reporter's Record, Volume 1 of 1 — hearing of May 21, 2026

Bass v. D'Agostino and McSween, No. DC-2025-CV-1817 / No. 15-26-00132-CV · 2026-05-21 · PDF

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Hearing on Motion for New Trial
May 21, 2026

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REPORTER'S RECORD
VOLUME 1 OF 1 VOLUMES
COURT OF APPEALS CASE NO. 15-26-00132
TRIAL COURT CAUSE NO. DC-2025-CV-1817

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KEVIN N. BASS,

) IN THE DISTRICT COURT
)
PLAINTIFF,
)
)
vs.
) LUBBOCK COUNTY, TEXAS
)
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.
) 237TH JUDICIAL DISTRICT
_____________________________________________
HEARING ON MOTION FOR NEW TRIAL
_____________________________________________

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On the 21st day of May, 2026, the following

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proceedings came on to be held in the above-titled and

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numbered cause before the Honorable Les Hatch, Judge

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Presiding, held in Lubbock, Lubbock County, Texas.

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Proceedings reported by computerized stenotype

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machine.

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Hearing on Motion for New Trial
May 21, 2026

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APPEARANCES

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PRO SE PLAINTIFF (VIA ZOOM):

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Mr. Kevin N. Bass

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Email:

kbassphiladelphia@gmail.com

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ATTORNEY FOR DEFENDANTS (VIA ZOOM):
Mr. Scott D. Smith
SBOT NO. 24011874
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

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Hearing on Motion for New Trial
May 21, 2026

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VOLUME 1

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HEARING ON MOTION FOR NEW TRIAL

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May 21, 2026
PAGE VOL.

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Proceedings ......................................4

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Plaintiff's Oral Argument .........................6

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Defendants' Oral Argument .........................9

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Court's Closing Comments .........................12

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Adjournment .....................................13

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Reporter's Certificate ...........................14

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Hearing on Motion for New Trial
May 21, 2026

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P R O C E E D I N G S

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THE COURT: The Court calls

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Cause No. DC-2025-CV-1817. This is Dr. Bass vs.

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Rice-Spearman, et al. And we are here on Plaintiff's

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306a motion to extend the applicable periods of time

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from the signing of the judgment. We're also here on

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Plaintiff's Motion for New Trial pursuant to Rule 329b.

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The Court -- before we have an

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evidentiary hearing on the 306a motion as to when the

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Plaintiff got notice of the -- the order granting the

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plea to the jurisdiction, the Court finds that 306a does

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not apply because the Plaintiff, pursuant to his

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pleadings, acknowledges notice of the order granting the

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plea to the jurisdiction within either seven or eight

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days, for sure by eight days, and that 306a(4) only

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applies if you did not receive notice within 20 days.

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As a result of that finding by the Court,

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the Court finds that whether or not the Plaintiff

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received notice and why he didn't receive it of the

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order granting the plea to the jurisdiction is

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irrelevant because the Motion for New Trial was filed, I

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think, on day eight of the signing of the order granting

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the plea to the jurisdiction.

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And the -- again, the Plaintiff
acknowledges knowledge, actual knowledge of the order

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Hearing on Motion for New Trial
May 21, 2026

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granting the plea to the jurisdiction within eight days,

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which is within 20 days; and, therefore the -- the 306a

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motion to extend the appellate deadline is not

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applicable in this case.

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So, the court denies the Plaintiff --

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without hearing evidence, the Court denies the

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Plaintiff's 306a motion to extend the periods of time.

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And by -- as a result of such denial, the Plaintiff is

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required to comply with the deadlines as if he had

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knowledge of the order when it was signed.

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And I know, Dr. Bass, that you're ready

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to put on all kinds of evidence about when you received

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the notice, and -- and I know that the Defense is ready

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to argue why you should have corrected the reason why

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you didn't receive the notice earlier.

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But for purposes of the 306a motion, the

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Court finds none of that to be relevant, and that the

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Plaintiff has timely perfected the ability to complain

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about the order granting the plea to the jurisdiction.

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And, so, the Court now moves to

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Plaintiff's Rule 329 Motion for New Trial, would call on

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Dr. Bass to argue that.

MR. BASS: Could I have a short break to

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orient myself?

THE COURT: Sure.

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Hearing on Motion for New Trial
May 21, 2026

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(Recess taken)

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THE COURT: All right. I'm back, if

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y'all are ready.

MR. BASS: Your Honor, should I begin

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or...

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THE COURT: Yes.

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PLAINTIFF'S ORAL ARGUMENT

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MR. BASS: Sorry. First of all,

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Your Honor, for the record, I respectfully except to the

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denial of the Rule 306a motion to have an evidentiary

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hearing.

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And, Your Honor, this is my Motion for
New Trial under Rule 329b to set aside the March 26th

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order dismissing my case. The motion is timely under
Rule 329b(a). The order was signed March 26th and

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then filed on April 3rd, within the 30-day window, --

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It rests on two grounds, both procedural.

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First, Peralta vs. Heights Medical Center, a judgment

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entered without notice and without opportunity to be

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heard is void.

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Between March 13th and 19th, I was shut

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out of four procedural moments in the submission

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proceeding -- proceeding on the plea, the notice of

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submission, the pre-draft proposed order, reply making
three new arguments, and the March 19th submission

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Hearing on Motion for New Trial
May 21, 2026

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date that closed the paper record. I had notice of none

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of them.

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Second, Rule 21a, service to me was

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defective. The certificates of error in this case

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record serviced me as error or as sent to an address

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that does not exist in one particular case.

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Your Honor, these are contested factual

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questions. I ask the Court to take evidence on them

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today, to admit my exhibits and hear my testimony,

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because Peralta requires findings of facts, and findings

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cannot be made on papers alone. Today is where the

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record, I hope, gets built.

THE COURT: Okay. So, I do have a

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question. You received the plea to the jurisdiction

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that was filed by the Defendants, because you filed a

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response to that plea.

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What you didn't get, because of the email

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address issue, you didn't get the notice of the hearing

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on the plea, which was by submission, not oral argument.

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You didn't get the proposed order granting the plea.

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You didn't get the Defendants' reply to your response to

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the plea.

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And what was the fourth thing that you
didn't get?

MR. BASS: The -- the March 19th

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Hearing on Motion for New Trial
May 21, 2026

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submission date that closed the paper record.

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THE COURT: That's -- so, there was --

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there were two orders setting hearing that you didn't

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get. One of them I looked up last night, and it was

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actually set for hearing before the order setting

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hearing was signed. So, that couldn't have happened.

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And, so, somebody realized that --

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somebody on behalf of the Defendants realized that and

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promptly submitted me an amended order setting hearing,

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setting it for hearing again, by submission, at a date

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after the order setting hearing.

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And, so, those were two documents you

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didn't get, and then the proposed order granting the

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plea to the jurisdiction and then the reply by the

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Defendants to your response.

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What -- what would you have done

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differently had you had notice of those four documents?

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MR. BASS: One moment, Your Honor. So,

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for the -- so, Your Honor, for the 3-13th, the notice of

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submission, plus submitted notice of submission, I would

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have objected, requested an oral argument. For 3-13,

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the pre-drafted proposed order, I would have objected to

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form and substance. 3-18, for the reply through the

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arguments, ripeness futility, and academic deference, I

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would have moved for a leave to file surreply.

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Hearing on Motion for New Trial
May 21, 2026

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And, then, for the -- for the 3-19 one, I

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would have filed a surreply answering the -- the 3-18

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before the submission closed.

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And to add onto that, however, I would

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also say, or at least it is my understanding that

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Peralta forecloses the same result argument entirely,

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independent of what I might have done.

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As Peralta says, for 85 U.S. 80 at 86 to

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87, it is no answer saying that in his particular case

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due process of law would have led to the same result

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because he had no adequate defense on the merits.

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And, so, independent of what I might have

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done, the lack of notice and opportunity was itself the

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Peralta violation. No showing of a different outcome is

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required.

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THE COURT: All right. Thank you.

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Mr. Smith?

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DEFENDANT'S ORAL ARGUMENT

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MR. SMITH: Yes, Your Honor.

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So, the first point I want to make is

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that Mr. Bass was not deprived of any due process

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rights. He had his notice and opportunity to be heard,

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which is evidenced by his comprehensive 78-page response

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addressing Defendants' plea to the jurisdiction.

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Mr. Bass's assertion that he didn't

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Hearing on Motion for New Trial
May 21, 2026

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receive Defendants' reply on the notice of submission,

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that does not establish a Constitutional violation.

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There is no right to file a surreply absent leave of

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court. A movant can request submission without an oral

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hearing, as Defendants did.

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So, Plaintiff's disagreement with the

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outcome doesn't make a -- you know, the procedural

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events doesn't transform them into some kind of

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deprivation of his -- of his rights.

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Further, a Motion for New Trial requires

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showing that the alleged error, in this case the

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granting of Defendants' plea to the jurisdiction,

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probably caused the rendition of an improper judgment.

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And with respect to his -- Plaintiff's

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assertion that Defendants raised three new arguments,

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I -- I disagree with that. Defendants submitted their

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plea to the jurisdiction. Plaintiff filed his response

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addressing and rebutting a lot of Defendants' arguments.

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With respect to the three issues that

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Plaintiff says were newly raised, the first is academic

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deference. This was already squarely in Defendants'

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original plea, the plea regarding academic discipline

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and transcript determinations are discretionary

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institutional judgments and courts should defer to

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academic decision-making, cited some cases. And

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Hearing on Motion for New Trial
May 21, 2026

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Plaintiff directly responded to those authorities and

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arguments in his response.

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And, so, all the reply did was reiterate

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that academic record administration is discretionary.

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Courts defer to universities. And the requested relief

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would improperly supervise academic record

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administration.

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His second argument or issue that he says

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is newly raised in the reply is -- is this FERPA analogy

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ripeness. But the original plea that Defendants filed

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argue that the case was not ripe, that institutional

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review remained ongoing, no final refusal had occurred,

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and there were administrative avenues that remained

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open.

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Plaintiff responded extensively in his

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response, arguing that the 45 deadline -- day deadline

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expired, arguing the process had lapsed, arguing that

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the inspection structure was impossible, and argued the

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dispute was not concrete and ripe.

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So, all the reply did was argue that

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neither FERPA nor OP 77.13 prescribed exact and special

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logistics, and Plaintiff received multiple opportunities

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that the dispute was over implementation details rather

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than denial of access.

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So -- and, then, the last point that he raises

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Hearing on Motion for New Trial
May 21, 2026

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is the futility argument under Miranda that Defendants'

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original plea was fundamentally jurisdictional, and so a

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dismissal for lack of subject matter jurisdiction. And,

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so, the -- by simply arguing that any amendment is

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futile. That -- that all the Defendants were arguing is

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that Plaintiff had already amended, repeatedly, the

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defect was legal rather than factual. So, further

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amendment could not convert discretionary conduct into

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administerial duties.

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That's it. It's not a new jurisdictional

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ground. There's no new arguments that are raised.

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Simply, what Plaintiff is seeking is a second

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opportunity to litigate issues that have already been

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fully briefed. So, Defendants would respectfully submit

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that his Motion for New Trial be denied. Thank you.

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COURT'S CLOSING COMMENTS

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THE COURT: Okay. All right. So, I

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think the Court has discretion as to whether or not to

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entertain evidence at a Motion for New Trial hearing.

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The Court finds that the Plaintiff has sufficiently

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briefed everything that's necessary to support his

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argument here today on the Motion for New Trial, that

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there's no factual evidence that would bolster or be

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germane to the Motion for New Trial. It's a procedural

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issue.

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Hearing on Motion for New Trial
May 21, 2026

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And the Court finds that evidence is -is not necessary and will not entertain evidence.

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So, the Court will consider the Motion

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for New Trial based on the pleadings and the arguments

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by the Plaintiff here today and the response by the

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Defense. And the Court will let the parties know of its

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ruling on the Motion for New Trial probably, oh, say,

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Wednesday or so of next week.

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All right. Thank you very much.

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MR. BASS: Thank you, Your Honor.

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THE COURT: All right. Bye-bye.

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(Proceedings adjourned)

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Hearing on Motion for New Trial
May 21, 2026

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STATE OF TEXAS

)

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COUNTY OF LUBBOCK

)

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I, Joy Annette Goodman, Official Court Reporter in

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and for the 237th District Court, City of Lubbock,

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County of Lubbock, State of Texas, do hereby certify

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that the above and foregoing contains a true and correct

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transcription of all portions of evidence and other

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proceedings requested in writing by counsel for the

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parties to be included in this volume of the Reporter's

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Record, in the above-styled and numbered cause, all of

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which occurred in open court or in chambers and were

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reported by me.

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I further certify that this Reporter's Record of

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the proceedings truly and correctly reflects the

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exhibits, if any, admitted, tendered in an offer of

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proof or offered into evidence.

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I further certify that the total cost for the

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preparation of this Reporter's Record is $100.00 and was

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paid by Mr. Kevin Bass.

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Hearing on Motion for New Trial
May 21, 2026

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WITNESS MY OFFICIAL HAND this the 24th day of June,
2026.

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/s/ Joy Annette Goodman____________

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Joy Annette Goodman, Texas CSR 4741
Expiration Date: 10/31/2027
Official Court Reporter
237th District Court
904 Broadway (79401)
PO Box 10536
Lubbock, Texas 79408
Tel: 806.775.1028
Fax: 806.775.7996

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