Glenn Hegar, in His Official Capacity as Texas Comptroller of Public Accounts And the State of Texas v. Texas Horsemen's Partnership, LLP ( 2016 )

ACCEPTED
03-16-00070-CV
10931800
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/2/2016 9:41:45 AM
JEFFREY D. KYLE
CLERK
No. 03-16-00070-CV
No. 03-16-00070-CV
_____________________________________________________________
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
In
In the
the Third
Third Court
Court of
of Appeals
Appeals
6/2/2016 9:41:45 AM
Austin, Texas
Austin, Texas JEFFREY D. KYLE
_____________________________________________________________
Clerk
T EXAS H
TEXAS ORSEMEN’S P
HORSEMEN'S ARTNERSHIP, LLP,
PARTNERSHIP,
Plaintiff/Appellee,
Plaintiff/ Appellee,
v.
v.
GLENNHEGAR,
GLENN HEGAR,IN
INHIS OFFICIALCAPACITY
HISOFFICIAL CAPACITYAS
ASTHE TEXAS COMPTROLLER
THETEXAS COMPTROLLER OF
P UBLIC A
PUBLIC CCOUNTS, AND
ACCOUNTS, AND THE STATE OF TEXAS,
THE STATE TEXAS,
Defendants/Appellants.
Defendants/Appellants.
_____________________________________________________________
Motion to Remand,
Motion to Remand, or
or in
in the
the Alternative,
Alternative, to
to Dismiss for
Dismiss for
Lack
Lack ofof Jurisdiction
Jurisdiction
_____________________________________________________________
TO THE H
To JUSTICES OF
ONORABLE JUSTICES
HONORABLE THETTHIRD
OF THE HIRD C OURT OF A
COURT PPEALS:
APPEALS:
Pursuant to
Pursuant to Texas
Texas Rule
Rule of Appellate Procedure
Procedure 10,
10, Plaintiff/Appellee Texas
Horsemen’s Partnership,
Horsemen's Partnership, LLP (the "Horsemen's
LLP (the “Horsemen’s Partnership")
Partnership”) respectfully
respectfully files
this Motion to Remand, or in the Alternative, to Dismiss for Lack
Dismiss for Lack of
of Jurisdiction.
Jurisdiction.
On June
On 2016, the
June 1, 2016, the Horsemen's
Horsemen’s Partnership
Partnership filed
filed aa Notice Nonsuit
Notice of Nonsuit
Without Prejudice
Without Prejudiceinin the trial court,
the trial court, nonsuiting
nonsuiting all
all claims
claims against
against
Defendants/Appellants Glenn
Defendants/Appellants Hegar,
Glenn in inhis
Hegar, hisofficial
official capacity
capacity as the Texas
as the Texas
1
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Comptroller of Public
Public Accounts,
Accounts, and
and the
the State
State of
of Texas.
Texas. A True and Correct Copy
of the Notice
of the Notice of
of Nonsuit
Nonsuit is
is attached
attached hereto
hereto as Exhibit
Exhibit A. The Horsemen’s
The Horsemen's
Partnership’s Notice of
Partnership's Notice of Nonsuit
Nonsuit became
became effective
effective immediately
immediately when
when it was filed
completely extinguished
and it completely extinguished the underlying
underlying case controversy between
case or controversy between the
parties. See, e.g.,
See, e.g., University
University of Tex. Med.
of Tex. Med. Branch
Branch at Galveston
Galveston v. Estate of
v. Estate
195 S.W.3d
Blackmon, 195 S.W.3d 98, 100
100 (Tex.
(Tex. 2006).
2006). Accordingly, this Court
Accordingly, this Court lacks
lacks
jurisdiction over this interlocutory appeal. Id. at 99-101.
Because there is no longer a justiciable controversy between the parties, the
Horsemen’s Partnership
Horsemen's Partnership respectfully
respectfully requests
requests that
that the
the Court
Court remand
remand this
this case
case to
to the
the
that the
trial court so that the trial
trial court
court can
can perform
perform the
the ministerial
ministerial duty of entering
entering an
order
order dismissing
dismissing the
the case. Alternatively, the
case. Alternatively, the Horsemen's
Horsemen’s Partnership
Partnership respectfully
respectfully
requests that the Court dismiss this interlocutory appeal for lack of jurisdiction.
Respectfully
Respectfully submitted,
submitted,
GARDERE WYNNE
GARDERE WYNNESEWELL
SEWELL LLP
LLP
By: /s/ David
By: /s/ G. Cabrales
David G. Cabrales
David G.
David G. Cabrales
Cabrales
Texas Bar
Texas Bar No.
No. 00787179
00787179
dcabrales@gardere.com
dcabrales@gardere.com
Lucas
Lucas C.
C. Wohlford
Wohlford
Texas Bar
Texas Bar No.
No. 24070871
24070871
lwohlford@gardere.com
lwohlford@gardere.com
Calli A.
Calli A. Turner
Turner
Texas Bar
Texas Bar No.
No. 24088558
24088558
2
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cturner@gardere.com
Gardere Wynne Sewell LLP
Sewell LLP
3000 Thanksgiving
3000 Thanksgiving Tower
1601 Elm Street
Dallas, Texas 75201
Telephone:(214)
Telephone: (214) 999-3000
999-3000
Facsimile: (214)
Facsimile: (214) 999-4667
ATTORNEYS FOR
PLAINTIFF/APPELLEE
TEXAS HORSEMEN’S
HORSEMEN'S
PARTNERSHIP, LLP
PARTNERSHIP, LLP
CERTIFICATE OF
CERTIFICATE OF SERVICE
SERVICE
By my
By my signature below,
below, II hereby
hereby certify
certify that
that aa true and correct
correct copy
foregoing was
of the above and foregoing served on all counsel
was served counsel of record via the
Court’s electronic
Court's electronic filing
filing system
systemononJune
June1,
1, 2016
2016 and
and again
againononJune
June2,
2, 2016.
2016.
/s/ David
/s/ DavidG.
G.Cabrales
Cabrales
David G. Cabrales
3
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CERTIFICATE
CERTIFICATE OF
OF CONFERENCE
CONFERENCE
Pursuant to
to Texas
Texas Rule
Rule ofof Appellate
Appellate Procedure
Procedure10.1(a)(5),
10.1(a)(5), I certify
certify
that
that onon June
June 1,1, 2016,
2016, IIattempted
attempted to to confer
confer with
with counsel
counsel forfor
Defendants/Appellants regarding
Defendants/Appellants regarding the merits of this Motion and whether
Defendants/Appellants
Defendants/Appellants oppose
oppose the Motion.
the Motion. Counsel for
Counsel for
Defendants/Appellants informed me via voicemailvoicemail that they are opposed
to Plaintiff/Appellee’s request
to Plaintiff/Appellee's requestforfor remand
remand but are unopposed
but are unopposed to to
Plaintiff/Appellee’s request to
Plaintiff/Appellee's request to dismiss this appeal.
/s/ Lucas
/s/ Lucas C. Wohlford
Lucas C. Wohlford
4
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EXHIBIT A
6/1/2016 4:11:22 PM
Velva L. Price
District Clerk
Travis County
NO. D-1-GN-16-000078 D-1-GN-16-000078
Bad Henson
TEXAS HORSEMEN'S PARTNERSHIP, LLP§ IN THE DISTRICT COURT OF
Plaintiff,
vs. TRAVIS COUNTY, TEXAS
GLENN HEGAR, in his official capacity as §
Texas Comptroller of Public Accounts; STATE§
OF TEXAS 250TH JUDICIAL DISTRICT
Defendants. §
NOTICE OF NONSUIT WITHOUT PREJUDICE
COMES NOW the Texas Horsemen's Partnership, LLP, plaintiff in the above styled and
numbered cause, and respectfully files this Notice of Nonsuit Without Prejudice. Pursuant to
Texas Rule of Civil Procedure 162, Plaintiff hereby gives notice that it is taking a nonsuit of its
entire case against Defendants Glenn Hegar, in his official capacity as Texas Comptroller of
Public Accounts, and the State of Texas. This nonsuit is without prejudice to refiling, and is
effective immediately on the filing of this notice on this date.
DATED: May 31, 2016
Respectfully submitted,
GARDERE WYNNE SEWELL LLP
By: /s/ David G. Cabrales
David G. Cabrales
Texas Bar No. 00787179
deabrales@gardere.com
Lucas C. Wohlford
NOTICE OF NONSUIT WITHOUT PREJUDICE Page 1
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Texas Bar No. 24070871
lwohlfordagardere.corn
Calli A. Turner
Texas Bar. No. 24088558
cturnerftardere.com
Gardere Wynne Sewell LLP
3000 Thanksgiving Tower
1601 Elm Street
Dallas, Texas 75201
Telephone: (214) 999-3000
Facsimile: (214) 999-4667
ATTORNEYS FOR PLAINTIFF THE
TEXAS HORSEMEN'S PARTNERSHIP,
LLP
CERTIFICATE OF SERVICE
By my signature below, I hereby certify that a true and correct copy of the foregoing was
served to all counsel of record in accordance with the Texas Rules of Civil Procedure on this the
31st day of May, 2016.
/s/ David G. Cabrales
David G. Cabrales
NOTICE OF NONSUIT WITHOUT PREJUDICE Page 2
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