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

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

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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

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

3

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

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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

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

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