Bradley B. Ware v. Texas Commission on Environmental Quality

Opinion

ACCEPTED 03-14-00416-CV 4139454 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/13/2015 10:07:30 AM JEFFREY D. KYLE CLERK

No. 03-14-00416-CV FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS2/13/2015 10:07:30 AM JEFFREY D. KYLE AT AUSTIN Clerk ______________________________________

BRADLEY B. WARE, Appellant, v.

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, Appellee.

______________________________________

Appeal from the 53rd Judicial District Court Travis County, Texas Cause No. D-1-GN-10-002342 ______________________________________

UNOPPOSED MOTION FOR EXTENSION OF TIME FOR APPELLEE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY TO FILE BRIEF ______________________________________

TO THE HONORABLE COURT OF APPEALS:

Texas Commission on Environmental Quality, Appellee, requests, pursuant to

Rules 10.5(b) and 38.6(d) of the Texas Rules of Appellate Procedure, that this Court

grant the Commission a fifty-nine (59) day extension of time in which to file its

Appellee’s Brief. I. Background Information

The Commission’s Brief is due February 17, 2015. The Commission seeks an

extension of fifty-nine days, which will create a new due date of April 17, 2015, for

filing its brief. This is the first request for extension sought by the Commission.

There is no objection to this motion.

II. Basis for the Motion

Lead Counsel for the Commission is unable to devote the time necessary to

adequately prepare a response to the Appellant’s Brief filed by Bradley B. Ware.

Lead Counsel suffered a broken ankle that required surgery in early January 2015.

This injury has prevented, and continues to prevent, her from working either in her

office or full-time. Counsel recognizes that the requested extension is for an

unusually long period of time, being in excess of a thirty-day extension that would

normally be requested. But Lead Counsel does not expect to return to work full time

before March 15, 2015.

Lead Counsel appeared and argued this case in the district court on behalf of

the Commission, having at that time taken over the case from another Assistant

Attorney General. She has become familiar with the facts and issues in the case.

Therefore, it is appropriate for the Lead Counsel to be the Assistant Attorney General

predominantly responsible for the drafting of the Commission’s brief on the merits.

-2- Due to her injury, she has been unable to devote substantial time to working on this

appeal to date, and for this reason, the Commission is requesting an extension of time

in which to file its response brief.

Accordingly, and in order to provide a full and helpful response to the Court,

counsel for the State requests a fifty-nine day extension.

This extension is not sought for delay and no party’s rights will be prejudiced

by the requested delay. The case has not yet been set for argument, so granting this

extension should not delay submission of the case.

III. Certificate of Conference

Counsel for the Commission has conferred with counsel for the Appellant and

is authorized to represent that the Commission’s request for an extension of time up

to sixty days in which to file its brief is not opposed.

PRAYER FOR RELIEF

The Commission requests that this Court grant its motion for extension of time

until April 17, 2015, to file its brief.

Respectfully submitted,

KEN PAXTON Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

-3- JAMES E. DAVIS Deputy Attorney General for Civil Litigation

JON NIERMANN Chief, Environmental Protection Division

/s/Linda B. Secord LINDA B. SECORD Assistant Attorney General State Bar No. 17973400 Linda.Secord@TexasAttorneyGeneral.gov

PRISCILLA M. HUBENAK Assistant Attorney General State Bar No. 10144690 Priscilla.Hubenak@TexasAttorneyGeneral.gov

OFFICE OF THE ATTORNEY GENERAL Environmental Protection Division P. O. Box 12548, MC 066 Austin, Texas 78711-2548 Tel: (512) 463-2012 Fax: (512) 320-0911

ATTORNEYS FOR APPELLEE, TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

-4- Certificate of Service

On February 13, 2015, a true and correct copy of the foregoing Unopposed

Motion for Extension of Time for Appellee Texas Commission on Environmental

Quality to File Brief was served on the following counsel electronically through an

electronic service provider and by email:

Stephen P. Webb Attorneys for Appellant, s.p.webb@webbwebblaw.com Bradley B. Ware Gwendolyn Hill Webb g.hill.webb@webbwebblaw.com Webb & Webb 211 East Seventh Street Austin, Texas 78701 Tel: (512) 472-9990 Fax: (512) 472-3183

/s/Priscilla M. Hubenak

-5-