glenn-hegar-in-his-official-capacity-as-texas-comptroller-and-ken-paxton ( 2014 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00753-CV
Susan Combs, in her official capacity as Texas Comptroller, and Greg Abbott,
in his official capacity as Texas Attorney General, Appellants
v.
Texas Small Tobacco Coalition and Global Tobacco, Inc., Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-13-002414, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING
DISSENTING OPINION
The majority holds that the trial court did not have jurisdiction to consider appellees’
request for a hardship exemption because appellees did not timely file their request during the trial
court’s plenary jurisdiction. Although I do not quarrel with this conclusion relative to appellees’
request for relief under section 112.108 of the Tax Code, I believe appellees also sought alternative
relief from the trial court under Rule 24 of the Texas Rules of Appellate Procedure, which conferred
jurisdiction on the trial court. Therefore, I respectfully dissent.
A trial court may grant relief under Rule 24, which relates to the suspension of the
effect of a judgment pending appeal, even after its plenary power expires. Tex. R. App. P. 24.3(a).
Once a party invokes Rule 24, as appellees did, the trial court has jurisdiction to resolve the
requested relief, regardless of the merits of the request. See id. (giving trial court continuing
jurisdiction to order or modify security pending appeal). That is true even if the State is the party
that has superseded the judgment. See In re Dallas Area Rapid Transit, 967 S.W.2d 358, 359-60
(Tex. 1998); In re State Bd. of Educator Certification, 411 S.W.3d 576, 576-77 (Tex. App.–Austin
2013, orig. proceeding).
I would hold that the trial court had jurisdiction to consider the merits of appellees’
requested relief under Rule 24, and therefore I respectfully dissent.
__________________________________________
Scott K. Field, Justice
Before Justices Puryear, Goodwin, and Field
Filed: April 25, 2014
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