Volkswagen Group of America, Inc. And Audi of America, Inc. v. John Walker III, in His Official Capacity as Chairman of the Texas Department of Motor Vehicles Board The Honorable Michael J. O'Malley, the Honorable Penny A. Wilkov, in Their Official Capacities as Administrative Law Judges for the State Office ( 2015 )

ACCEPTED
03-15-00285-CV
6498582
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/14/2015 10:40:14 AM
JEFFREY D. KYLE
CLERK
CAUSE NO. 03-15-00285-CV
FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS
8/14/2015 10:40:14 AM
AUSTIN, TEXAS
JEFFREY D. KYLE
Clerk
Volkswagen Group of America, Inc. and Audi of America, Inc. of Texas
Appellants,
v.
John Walker III, in his official capacity as Chairman of the Texas Department
of Motor Vehicles Board, and the Honorable Michael J. O’Malley and the
Honorable Penny A. Wilkov, in their official capacities as Administrative Law
Judges for the State Office of Administrative Hearings
Appellees.
On Appeal from the 201st Judicial District Court, Travis County, Texas
Honorable Amy Clark Meachum, Presiding Judge
BRIEF OF APPELLEES O’MALLEY AND WILKOV
KEN PAXTON KIMBERLY L. FUCHS
Attorney General of Texas State Bar No. 24044140
Administrative Law Division
CHARLES E. ROY Office of the Attorney General of Texas
First Assistant Attorney General P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
SHELLEY DAHLBERG Telephone: (512) 475-4195
Associate Deputy Attorney General for Facsimile: (512) 320-0167
Civil Litigation
ATTORNEYS FOR APPELLEES
DAVID A. TALBOT, JR. THE HONORABLE MICHAEL J. O’MALLEY
Chief, Administrative Law Division AND THE HONORABLE PENNY A. WILKOV
August 14, 2015
REFERENCE TO THE PARTIES
Appellants, Volkswagen Group of America, Inc. and Audi Group of America,
Inc., will be referred to as “Audi.” Appellee John Walker III will be referred to as
“Walker.” Appellee Budget Leasing and Appellees Ricardo M. Weitz, Hi Tech
Imports North, LLC, Hi Tech Imports South, LLC, and Hi Tech Imports, LLC, will
be referred to collectively as “Intervenors.” Appellees Michael J. O’Malley and
Penny A. Wilkov will be referred to as “SOAH ALJs.”
REFERENCES TO THE RECORD
Clerk’s record will be referenced as: C.R. [Page]
Appendix will be referenced as: App. [Letter]
ii
TABLE OF CONTENTS
Reference to the Parties............................................................................................. ii
References to the Record .......................................................................................... ii
Table of Contents ..................................................................................................... iii
Table of Authorities ...................................................................................................v
Statement of the Case.............................................................................................. vii
Statement Regarding Oral Argument ..................................................................... vii
Statement Regarding Oral Argument ..................................................................... vii
Issues Presented ..................................................................................................... viii
1. Response to Audi’s issue 1: The trial court did not err in finding Audi had
failed to state a proper ultra vires claim capable of overcoming Defendants’
entitlement to immunity and granting Defendants O’Malley and Wilkov’s
plea to the jurisdiction ................................................................................. viii
2. Response to Audi’s issue 2: The trial court did not err in dismissing Audi’s
case because no proper ultra vires claim was asserted, and Audi has the
opportunity to challenge the remand through a suit brought under the APA
after exhaustion of administrative remedies ................................................ viii
Statement of Facts ......................................................................................................1
Summary of the Argument.........................................................................................2
Argument....................................................................................................................3
I. The trial court did not err in finding Audi had failed to state a proper ultra
vires claim capable of overcoming Defendants’ entitlement to immunity and
granting Defendants O’Malley and Wilkov’s plea to the jurisdiction ............ 3
A. Audi has not stated a proper ultra vires claim ...................................... 3
1. None of the cases cited by Audi involve cases on remand .........4
2. SOAH’s interpretation of Rule 155.153 must be given
deference .....................................................................................5
iii
B. Audi cannot overcome the SOAH ALJs entitlement to sovereign
immunity ............................................................................................... 5
C. The trial court was correct in deciding the plea to the jurisdiction
without looking at additional evidence ................................................. 7
II. The trial court did not err in dismissing Audi’s case because no proper ultra
vires claim was asserted, and Audi has the opportunity to challenge the
remand through a suit brought under the APA after exhaustion of
administrative remedies ................................................................................... 9
A. Immunity and the exhaustion requirement are not waived if no proper
ultra vires claim is pled ......................................................................... 9
B. Even if a proper ultra vires claim is pled, sovereign immunity is only
waived for claims for prospective injunctive relief .............................. 9
C. Audi’s claims are properly brought in a suit for judicial review after
exhaustion of administrative remedies ................................................ 11
Conclusion and Prayer .............................................................................................11
Certificate of Compliance ......................................................................................133
Certificate of Service ...............................................................................................13
iv
TABLE OF AUTHORITIES
CASES
Andrade v. NAACP of Austin,
345 S.W.3d 1 (Tex. 2011) ..........................................................................................8
City of El Paso v. Heinrich,
284 S.W.3d 366 (Tex. 2009) ........................................................................... 3, 9, 10
Coastal Habitat Alliance v. Pub. Util. Comm’n of Tex.,
294 S.W.3d 276 (Tex. App.—Austin 2009, no pet.) .................................................6
Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on Envtl. Quality,
307 S.W.3d 505 (Tex. App.—Austin 2010, no pet.) .................................................8
Hendee v. Dewhurst,
228 S.W.3d 354 (Tex. App.—Austin 2007, pet. denied) ..........................................7
KEM Tex., Ltd. v. Tex. Dep’t of Transp.,
No. 03-08-00468-CV, 2009 WL 1811102
(Tex. App.—Austin Jun. 26, 2009, no pet.)...............................................................6
Klumb v. Houston Mun. Emps. Pension Sys.,
405 S.W.3d 204 (Tex. App.—Houston [1st Dist.] 2013) ..........................................8
N. Alamo Water Supply Corp. v. Tex. Dep’t of Health,
839 S.W.2d 455 (Tex. App.—Austin 1992, writ denied)
aff’d 458 S.W.3d 1 (Tex. 2015) .................................................................................6
State v. Sledge,
36 S.W.3d 152 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) ........................6
Sw. Pharmacy Solutions, Inc. v. Tex. Health and Human Servs. Comm'n,
408 S.W.3d 549 (Tex. App.–Austin 2013, pet. denied) ............................................5
Westheimer Indep. Sch. Dist. v. Brockette,
567 S.W.2d 780 (Tex. 1978) ......................................................................................5
v
STATUTES
Tex. Gov't Code
Tex. Gov’t Code § 2001.171....................................................................................10
Tex. Gov’t Code § 2001.174(2)(A) .........................................................................11
STATE OFFICE OF ADMINISTRATIVE HEARINGS ORDERS1
In the Matter of Ricardo M. Weitz, et al. v. Volkswagen Group of America, Inc.,
et al., SOAH Docket No. 0608-13-4599.LIC, Remand Order No. 15 (Jun. 16,
2015) ........................................................................................................................10
RULES
1 Tex. Admin. Code § 155.153 (2008) .....................................................................9
Tex. R. Civ. P. 329b ...................................................................................................5
1
Proposal for decisions and orders of the State Office of Administrative Hearings are available on
the internet at: http://www.soah.state.tx.us/PFDSearch/Search.asp and Westlaw©.
vi
STATEMENT OF THE CASE
Nature of the case: Audi filed suit against ALJs Michael J. O’Malley
and Penny A. Wilkov and Department of Motor
Vehicles (DMV) Chairman John Walker III. In
its lawsuit, Audi alleged Defendants committed
ultra vires acts by remanding a case to the State
Office of Administrative Hearings (SOAH).
Budget Leasing and Appellees Ricardo M. Weitz,
Hi Tech Imports North, LLC, Hi Tech Imports
South, LLC, and Hi Tech Imports, LLC
intervened in the case. After the trial court denied
Audi’s request for a temporary restraining order,
Defendants filed pleas to the jurisdiction,
asserting that Audi had failed to state proper ultra
vires claims against any of the Defendants and had
failed to overcome Defendants’ entitlement to
immunity.
Trial court: 201st Judicial District Court, Travis County,
Texas; The Honorable Judge Amy Clark
Meachum, presiding.
Trial court disposition: The trial court granted Defendants O’Malley and
Wilkov’s Plea to the Jurisdiction and Defendant
Walker’s Plea to the Jurisdiction, dismissing the
case.
STATEMENT REGARDING ORAL ARGUMENT
Defendants O’Malley and Wilkov take the position that oral argument is not
necessary in this case, but requests the right to make an argument should oral
argument be granted.
vii
ISSUES PRESENTED
1. Response to Audi’s issue 1: The trial court did not err in finding Audi had failed
to state a proper ultra vires claim capable of overcoming Defendants’
entitlement to immunity and granting Defendants O’Malley and Wilkov’s plea
to the jurisdiction.
2. Response to Audi’s issue 2: The trial court did not err in dismissing Audi’s case
because no proper ultra vires claim was asserted, and Audi has the opportunity
to challenge the remand through a suit brought under the APA after exhaustion
of administrative remedies.
viii
CAUSE NO. 03-15-00285-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AUSTIN, TEXAS
Volkswagen Group of America, Inc. and Audi of America, Inc. of Texas
Appellants,
v.
John Walker III, in his official capacity as Chairman of the Texas Department
of Motor Vehicles Board, and the Honorable Michael J. O’Malley and the
Honorable Penny A. Wilkov, in their official capacities as Administrative Law
Judges for the State Office of Administrative Hearings
Appellees.
On Appeal from the 201st Judicial District Court, Travis County, Texas
Honorable Amy Clark Meachum, Presiding Judge
BRIEF OF APPELLEES O’MALLEY AND WILKOV
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
STATEMENT OF FACTS
This case stems from a contested case proceeding involving Audi and the
intervenors. The contested case was referred to the State Office of Administrative
Hearings (SOAH) by the Department of Motor Vehicles (DMV). C.R. 117-148. The
underlying dispute involves the sale of two auto dealerships. C.R. 367-369. After a
hearing, SOAH issued a proposal for decision (PFD), agreeing with Audi that the
intervenors were not currently qualified buyers, but setting out the conditions that
the buyers would need to meet to become qualified. C.R. 399-502.
The DMV did not enter a final decision based on the PFD, but rather dismissed
the case for failure to comply with procedural requirements. C.R. 503-505. On
motion for rehearing, the DMV set aside its dismissal and remanded the case to
SOAH for a finding on whether the procedural requirements were, in fact, met. C.R.
168-169.
The only issue in this case is based on Audi’s claim that Chairman Walker
committed an ultra vires act by remanding a case to SOAH and that the SOAH ALJs
committed an ultra vires act by accepting a remand from the DMV and conducting
procedures in accordance with it.
SUMMARY OF THE ARGUMENT
Audi alleges the ALJs violated SOAH procedural Rule 155.153 by accepting
a case remanded to them by the DMV. The rule at issue states that an Administrative
Law Judge may reopen evidence in a case if the PFD has not issued. ALJs regularly
accept cases remanded to them, and that rule has never been interpreted by SOAH
or a court to prevent ALJs from reopening the record on remand. The ALJs have
not committed ultra vires acts, and Audi’s claim fails on its face. Audi is also
requesting retroactive relief, and such relief is barred by qualified immunity.
Because no proper ultra vires claim was stated, Audi is required to exhaust its
2
administrative remedies before complaining about the SOAH ALJs’ orders in district
court. The trial court rightly granted the Plea to the Jurisdiction.
ARGUMENT
I. The trial court did not err in finding Audi had failed to state a proper
ultra vires claim capable of overcoming Defendants’ entitlement to
immunity and granting Defendants O’Malley and Wilkov’s plea to the
jurisdiction.
A. Audi has not stated a proper ultra vires claim.
Audi has not stated a valid cause of action against SOAH. Although Audi
mischaracterizes its complaint against the SOAH ALJs as an ultra vires claim, its
own pleadings fail to identify any actions that the SOAH ALJs have taken that could
be properly characterized as ultra vires. An ultra vires act occurs when an official
acts without constitutional or statutory authority, or in violation of the constitution
or a statute. City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Audi’s
claim against the SOAH ALJs is simply an allegation that they violated a procedural
rule, SOAH Rule 155.153, by accepting a case remanded to SOAH by the DMV.
SOAH has always interpreted Rule 155.153 to mean it cannot take new
evidence concerning a Proposal for Decision that has already been issued. However,
SOAH has also always interpreted Rule 155.153 to allow the taking of additional
evidence in a remand proceeding in which a new supplemental or amended proposal
for decision will be issued. This interpretation can only be an ultra vires act if Audi
3
can show that SOAH’s interpretation of its own rule is inconsistent with its statutory
authority. Audi has made no attempt to do so.
Audi asserts that Rule 155.153 provides an “express prohibition” on
reopening the record if a PFD is issued. Brief at 46. In fact, Rule 155.153(d) does
not prohibit anything. It simply gives SOAH ALJs the ability to reopen the record
if new issues arise after the record has been closed, but before the ALJ has issued a
proposal for decision. The rule does not address remands, and there is nothing in
the text of the rule suggesting that SOAH does not have the authority to accept
remands. In fact, the statutes cited by Audi show that SOAH does regularly accept
remands. Brief at 22-23. Further, Texas Government Code section 2001.175(c)
specifically authorizes a district court to order SOAH to consider evidence not
already in the record. If Rule 155.153 was meant to prohibit remands except where
explicitly authorized, it could have easily done so. But nothing in the Rule indicates
it applies to remands at all.
1. None of the cases cited by Audi involve cases on remand.
Audi argues that SOAH has consistently ruled that it cannot reopen cases once
a Proposal for Decision has issued. However, none of the cases they cite are
applicable, as none of them were on remand. A remand reopens a case, and will
result in a new Proposal for Decision.
4
The process at SOAH is akin to the process in the court system. If a district
court receives a request to reconsider an issue or admit new evidence outside of its
plenary power, it cannot do so. Tex. R. Civ. P. 329b. However, if a case is remanded
by an appellate court to develop the factual record, the trial court again has the ability
to admit evidence and make rulings in a case.
2. SOAH’s interpretation of Rule 155.153 must be given
deference.
An agency is given deference to its interpretation of its own rules. Sw.
Pharmacy Solutions, Inc. v. Tex. Health and Human Servs. Comm'n, 408 S.W.3d
549, 561 (Tex. App.–Austin 2013, pet. denied) (citing R.R. Comm'n v. Tex. Citizens
for a Safe Future & Clean Water, 336 S.W.3d 619, 629 (Tex. 2011)). It is certainly
reasonable for SOAH to interpret its rule in a way that allows it to consider additional
evidence in a remand proceeding when asked by an agency or a court. “Courts
generally hold that administrative bodies are entitled to and should exercise the
duties and functions conferred by statute without interference from the courts.”
Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 785 (Tex. 1978).
B. Audi cannot overcome the SOAH ALJs entitlement to sovereign
immunity.
As explained above, Audi failed to plead a proper cause of action. However,
even if it had, it would also be required to demonstrate that the cause of action waives
the state’s immunity. “A party who sues the State must have an independent waiver
5
of immunity from suit for each claim in the suit.” State v. Sledge, 36 S.W.3d 152,
156 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).
Texas courts have held that it is not ultra vires for an agency to incorrectly
interpret the law; thus, a claim based on this allegation will fail to waive sovereign
immunity or confer jurisdiction upon the court and may also be held as redundant to
a suit for judicial review. See Coastal Habitat Alliance v. Pub. Util. Comm’n of Tex.,
294 S.W.3d 276, 285 (Tex. App.—Austin 2009, no pet.); N. Alamo Water Supply
Corp. v. Tex. Dep’t of Health, 839 S.W.2d 455, 458-59 (Tex. App.—Austin 1992,
writ denied) (“The fact that the [agency] might decide ‘wrongly’ in the eyes of an
opposing party does not vitiate the agency’s jurisdiction to make an initial
decision.”); KEM Tex., Ltd. v. Tex. Dep’t of Transp., No. 03-08-00468-CV, 2009
WL 1811102 (Tex. App.—Austin Jun. 26, 2009, no pet.)(mem. op.).
Although Audi recognizes SOAH does have the authority to accept remands
in certain cases, it argues SOAH should have “honored” section 2001.058(e) of the
APA by telling the Board that it only has the authority to change a finding, not issue
a remand. Brief at 41-42. Audi has not explained how failing to handle the situation
this way is an ultra vires act. Even if Audi’s interpretation of the APA was correct,
6
the SOAH ALJ’s decision to accept the remand from the DMV could be, at most, an
incorrect decision, not an ultra vires act. 2
As explained above, misinterpreting the law is not an ultra vires act, and
sovereign immunity is not waived. Not only has Audi failed to show its
interpretation of the APA is correct, but it has failed to state an ultra vires claim
capable of overcoming immunity against the SOAH ALJs even if Audi’s position
were taken as true. At best, Audi has claimed the SOAH ALJs have misinterpreted
the law in terms of the remand. This assertion is inadequate to state an ultra vires
claim, and Audi has failed to waive the SOAH ALJs entitlement to sovereign
immunity.
C. The trial court was correct in deciding the plea to the jurisdiction
without looking at additional evidence.
In Hendee v. Dewhurst, the Third Court of Appeals clearly explained:
It is also well-established that where a trial court’s jurisdiction depends
upon whether a state official’s acts are within her constitutional or
statutory authority, such as when a plaintiff alleges ultra vires action to
avoid sovereign immunity, the trial court may sometimes be able to
decide the jurisdictional issue as a matter of law based on the pleadings
by construing the constitutional and statutory provisions defining the
actor’s authority and ascertaining whether the acts alleged would
exceed that authority.
2
SOAH disagrees with Audi’s interpretation of Government Code section 2001.058(e). That
section merely sets out the criteria for an agency to change a finding of fact or conclusion of law,
or to vacate or modify an order issued by a SOAH ALJ. That section does not otherwise limit the
authority of a state agency, and specifically does not preclude an agency from remanding a
contested case hearing to SOAH for further actions.
7
Hendee v. Dewhurst, 228 S.W.3d 354, 368 (Tex. App.—Austin 2007, pet. denied).
Plaintiffs must plead facts that demonstrate the Defendants acted in contravention of
constitutional or statutory authority or failed to perform a ministerial act; suits that
seek to control discretionary decisions are barred. See, e.g., Andrade v. NAACP of
Austin, 345 S.W.3d 1, 10-12 (Tex. 2011) (failure to plead viable constitutional claim
bars suit against government entity); Klumb v. Houston Mun. Emps. Pension Sys.,
405 S.W.3d 204, 224 (Tex. App.—Houston [1st Dist.] 2013) aff’d 458 S.W.3d 1
(Tex. 2015) (when “plaintiff’s constitutional claim is facially invalid, the trial court
must grant a . . . plea to the jurisdiction asserting governmental immunity”);
Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on Envtl. Quality, 307
S.W.3d 505, 515-16 (Tex. App.—Austin 2010, no pet.) (“if the plaintiff alleges only
facts demonstrating acts within the officer’s legal authority and discretion, the claim
seeks to control state action, and is barred by sovereign immunity”).
Here, Audi failed to state an ultra vires claim against the SOAH ALJs or
overcome sovereign immunity as a matter of law, and additional evidence would not
have aided the court in determining whether SOAH can accept a remand from the
DMV, the only issue in the case against SOAH. The sole issue is whether the SOAH
rules expressly prohibit remands and if so, whether the SOAH procedural rules can
form the basis of an ultra vires claim. The issue is purely one of legal interpretation.
8
Audi’s evidence, mainly related to the procedural history of the underlying case, is
irrelevant to the very narrow issue here.
II. The trial court did not err in dismissing Audi’s case because no proper
ultra vires claim was asserted, and Audi has the opportunity to challenge
the remand through a suit brought under the APA after exhaustion of
administrative remedies.
A. Immunity and the exhaustion requirement are not waived if no
proper ultra vires claim is pled.
For the reasons stated above, Audi’s ultra vires claim against the SOAH ALJs
is not proper. In addition, the SOAH ALJs are immune to the type of relief requested
by Audi. Audi asks this Court to declare that the SOAH ALJs have committed ultra
vires acts by 1) reopening the record; 2) considering untimely evidence;
3) conducting a remand hearing; and 4) conducting the remand procedure on a
compressed schedule. Brief at 39. A judgment declaring these acts to be ultra vires
would be barred by sovereign immunity.
B. Even if a proper ultra vires claim is pled, sovereign immunity
is only waived for claims for prospective injunctive relief.
As the state’s waiver of immunity for ultra vires claims is limited to
prospective injunctive relief, an order declaring this previous act to be ultra vires
would be retrospective relief, and thus barred by sovereign immunity. City of El
Paso v. Heinrich, 284 S.W.3d at 376.
Rule 155.153 says:
(a) Judge’s authority and duties. The judge shall have the authority and duty to:
9
(1) conduct a full, fair, and efficient hearing;
(2) take action to avoid unnecessary delay in the disposition of the proceeding;
(3) maintain order; and
(4) reopen the record when justice requires, if the judge has not issued a
dismissal, proposal for decision, or final decision.
1 TEX. ADMIN. CODE § 155.153 (2008) (State Office of Admin. Hearings, Rules of
Procedure
The rule only involves SOAH’s ability to reopen the record. The record has
already been reopened and closed again. State Office of Admin. Hearings, In the
Matter of Ricardo M. Weitz, et al. v. Volkswagen Group of America, Inc., et al.,
SOAH Docket No. 0608-13-4599.LIC, Remand Order No. 15 (Jun. 16, 2015)
(remand order closing the record).3 As the state’s waiver of immunity for ultra vires
claims is limited to prospective injunctive relief, an order declaring this previous act
to be ultra vires would be retrospective relief, and thus barred by sovereign
immunity. City of El Paso v. Heinrich, 284 S.W.3d at 376.
Audi has not stated a proper ultra vires claim, and its claim against the SOAH
ALJs is redundant to a suit for judicial review. To complain about the SOAH ALJs’
rulings, Audi must exhaust its administrative remedies before challenging those
orders in district court.
Audi has a right to judicial review of the final decision that will be issued in
the pending contested case, pursuant to section 2001.171 of the Administrative
3
The second PFD was issued on August 13, 2015. The parties will now have the opportunity to
file exceptions to the PFD in the SOAH case.
10
Procedure Act (APA). However, that right accrues only to a person “who is
aggrieved by a final decision in a contested case” and “who has exhausted all
administrative remedies.” Tex. Gov’t Code § 2001.171. Upon such a judicial review
after the DMV issues its final decision in this case, section 2001.174 of the APA
provides for reversal or remand of a decision in a contested case if the substantial
rights of the appellant have been prejudiced because the decision was entered in
violation of a constitutional or statutory provision. Tex. Gov’t Code
§ 2001.174(2)(A).
C. Audi’s claims are properly brought in a suit for judicial review
after exhaustion of administrative remedies.
If Audi is dissatisfied with this PFD and the subsequent final decision issued
by the DMV, it will have a chance to argue and develop its case through a suit for
judicial review in district court under the Administrative Procedure Act. Audi can
then argue that the remand was improper. If it is dissatisfied with the actions of the
district court, it will once again have the opportunity to appeal to this Court. This
Court will, ultimately, have the opportunity to rule on whether the remand was
proper.
CONCLUSION AND PRAYER
For the reasons stated above, SOAH ALJs ask this Court to affirm the trial
court’s granting of the SOAH ALJ’s Plea to the Jurisdiction.
11
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
SHELLEY DAHLBERG
Associate Deputy Attorney General for Civil
Litigation
DAVID A. TALBOT, JR.
Chief, Administrative Law Division
/s/ Kimberly L. Fuchs
KIMBERLY L. FUCHS
State Bar No. 24044140
Administrative Law Division
Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-4195
Facsimile: (512) 320-0167
kimberly.fuchs@texasattorneygeneral.gov
ATTORNEYS FOR APPELLEES, THE
HONORABLE MICHAEL J. O’MALLEY AND
THE HONORABLE PENNY A. WILKOV, IN
THEIR OFFICIAL CAPACITIES AS
ADMINISTRATIVE LAW JUDGES FOR THE
STATE OFFICE OF ADMINISTRATIVE
HEARINGS
12
CERTIFICATE OF COMPLIANCE
I certify that the Brief of Appellees O’Malley and Wilkov submitted complies
with Rule 9 of the Texas Rules of Appellate Procedure and the word count of this
document is 2,654. The word processing software used to prepare this filing and
calculate the word count of the document is Microsoft Word 2013.
Date: August 14, 2014
/s/ Kimberly L. Fuchs
KIMBERLY L. FUCHS
Attorney for Appellees
SOAH Administrative Law Judges
O’Malley and Wilkov
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Brief of Appellees
O’Malley and Wilkov has been served on August 14, 2015, on the following parties
and/or counsel-of-record via electronic transmission, e-mail and/or facsimile:
S. Shawn Stephens J. Bruce Bennett
Texas Bar No. 19160060 State Bar No. 02145500
James P. Sullivan Cardwell, Hart & Bennett, LLP
Texas Bar No. 24070702 807 Brazos, Suite 1001
King & Spalding LLP Austin, Texas 78701
1100 Louisiana, Suite 4000 Telephone: (512) 322-0011
Houston, Texas 77002 Facsimile: (512) 322-0808
Telephone: (713) 751-3200 jbb.chblaw@sbcglobal.net
Facsimile: (713) 751-3290
sstephens@kslaw.com Attorneys for Appellees
jsullivan@kslaw.com Ricardo M. Weitz, Hi Tech Imports North,
LLC, Hi Tech Imports South, LLC, and
Attorneys for Appellants Hi Tech Imports, LLC
Volkswagen Group of Americas, Inc.
and Audi of America, Inc.
13
Billy M. Donley Joseph W. Letzer
State Bar No. 05977085 State Bar No. 24030763
Mark E. Smith Dent M. Morton
State Bar No. 24070639 State Bar No. 24056645
Baker & Hostetler LLP Burr & Forman, LLP
811 Main Street, Suite 1100 420 20TH Street N, Suite 3400
Houston, Texas 77002 Birmingham, AL 35203-5210
Telephone: (713) 751-1600 Telephone: (205) 251-3000
Facsimile: (713) 751-1717 Facsimile: (205) 458-5100
bdonley@bakerlaw.com jletzer@burr.com
mesmith@bakerlaw.com dmorton@burr.com
Attorneys for Appellants Attorneys for Appellees
Volkswagen Group of Americas, Inc. Ricardo M. Weitz, Hi Tech Imports North,
and Audi of America, Inc. LLC, Hi Tech Imports South, LLC, and
Hi Tech Imports, LLC
William R. Crocker Dennis McKinney
State Bar No. 5091000 State Bar No. 13719300
Attorney at Law Assistant Attorney General
807 Brazos, Ste 1014 Administrative Law Division
Austin, Texas 78701 Office of the Attorney General of Texas
P.O. Box 1418 P.O. Box 12548, Capitol Station
Austin, Texas 78767 Austin, Texas 78711-2548
Telephone: (512) 478-5611 Telephone: (512) 475-4020
Facsimile: (512) 474-2540 Facsimile: (512) 320-0167
crockerlaw@earthlink.net dennis.mckinney@texasattorneygeneral.gov
Attorney for Appellee Attorney for Appellee
Budget Leasing, Inc. d/b/a John Walker III, in his official capacity as
Audi North Austin and Chairman of the Texas Department of
Audi South Austin Motor Vehicles Board
/s/ Kimberly L. Fuchs
KIMBERLY L. FUCHS
Attorney for Appellees
SOAH Administrative Law Judges
O’Malley and Wilkov
14