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

• Court: Court of Appeals of Texas
• Decided: June 2, 2016
• Docket: 03-16-00070-CV
• Status: Published

Opinion

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

Gardere01 -- 8745155v.1 Gardere01 8745155v.1 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

Gardere01 - 8745155v.1 8745155v.1 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

Gardere01 - 8745155v.1 8745155v.1 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 Gardere01 - 8745155v.1 8745155v.1 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

Gardere01 - 8745149v.1 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

Gardere01 - 8745149v,1