City of Austin v. Travis Central Appraisal District The State of Texas And Individuals Who Own C1 Vacant Land and/or F1 Commercial Real Property Within Travis County, Texas

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ACCEPTED 03-16-00038-CV 11224329 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/20/2016 11:15:09 AM JEFFREY D. KYLE CLERK NO. 03-16-00038-CV IN THE COURT OF APPEALS FILED IN FOR THE THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS AUSTIN, TEXAS AT AUSTIN, TEXAS 6/20/2016 11:15:09 AM JEFFREY D. KYLE CITY OF AUSTIN, Clerk Appellant, v. TRAVIS CENTRAL APPRAISAL DISTRICT; INDIVIDUALS WHO OWN C1 (VACANT LAND) OR F1 (COMMERCIAL REAL) PROPERTY WITHIN TRAVIS COUNTY, TEXAS and THE STATE OF TEXAS, Appellees. ON APPEAL FROM THE 126TH DISTRICT COURT TRAVIS COUNTY, TEXAS CAUSE NO. D-1-GN-15-003492 SUR-REPLY OF APPELLEES TEXAS ASSOCIATION OF REALTORS, LOWE’S HOME CENTERS, LLC AND H E DRISKILL, LLC JAMES E. POPP State Bar No. 16139280 Jim.Popp@property-tax.com MARK S. HUTCHESON State Bar No. 00796805 Mark.Hutcheson@property-tax.com DANIEL R. SMITH State Bar No. 24013525 Daniel.Smith@property-tax.com POPP HUTCHESON PLLC 1301 S. Mopac, Suite 430 Austin, Texas 78746 (512) 473-2661 - Telephone (512) 479-8013 – Facsimile COUNSEL FOR APPELLEES ARGUMENT Appellees Texas Association of Realtors, Lowe’s Home Centers, LLC, and H E Driskill, LLC (collectively the “TAR Defendants”) hereby file this sur-reply to address Part V of the reply filed by Appellant City of Austin (the “City”). (City’s Reply at pp. 17-18). The City cites Neeley v. West Orange-Cove Consolidated Independent School District for the general test for standing, i.e., that there is (a) a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought. 176 S.W.3d 746, 773 (Tex. 2005); (City’s Reply at pp. 17-18). The City contends that the issue of standing to bring its constitutional challenge is broader than the scope of the word “implement,” and that it must have a remedy to challenge statutes that it deems “unconstitutional.” Citing the same general test for standing, Harris County Emergency Services District No. 2 v. Harris County Appraisal District made clear that, in order for a political subdivision to have standing, “the Texas Supreme Court has recognized that the subdivision must be charged with implementing a statute it believes violates the Texas Constitution.” 132 S.W.3d 456, 461 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). As with the appraisal district challenging the open-space agricultural exemption in Nootsie and the municipality challenging the police officer disciplinary hearing statute in Proctor, the school districts in Neeley SUR-REPLY OF APPELLEES CAUSE NO. 03-16-00038-CV 1 implemented the school finance ad valorem tax rate setting and collection statutes that they were challenging. Neeley is consistent with the holding in Harris County Emergency Services District and does not support the City’s position. The City continues to bring the concept of “motive” into the analysis on standing. It attempts to distinguish Harris County Emergency Services District by characterizing the alleged injury in that case as “loss of revenue,” as opposed to a requirement “to impose an unconstitutional tax.”1 The City’s motive in bringing its constitutional challenge is irrelevant. The test is whether the City implements the statutes that it challenges. Because it does not, the City has no standing to challenge their constitutionality. For the foregoing reasons and the reasons stated in the TAR Defendants’ response, the TAR Defendants respectfully request that the Court affirm the trial court’s dismissal of the City’s lawsuit. 1 The City’s counsel argued a different motive to the trial court. At the summary judgment hearing on October 7, 2015, counsel for the City stated: Our constitutionality argument has to do with the fact that the appraisals and the process in general on how they are done really deprives the City of revenue, so to speak. Because there is unequal and uniform taxation, the City is not getting at the additional revenue that is being lost by these provisions. (2 RR 49:12-18). SUR-REPLY OF APPELLEES CAUSE NO. 03-16-00038-CV 2 Respectfully Submitted, POPP HUTCHESON PLLC 1301 S. Mopac, Suite 430 Austin, Texas 78746 (512) 473-2661 - Telephone (512) 479-8013 – Facsimile /s/ Daniel R. Smith JAMES E. POPP State Bar No. 16139280 Jim.Popp@property-tax.com MARK S. HUTCHESON State Bar No. 00796805 Mark.Hutcheson@property-tax.com DANIEL R. SMITH State Bar No. 24013525 Daniel.Smith@property-tax.com ATTORNEYS FOR APPELLEES TEXAS ASSOCIATION OF REALTORS, LOWE’S HOME CENTERS, LLC, AND H E DRISKILL, LLC SUR-REPLY OF APPELLEES CAUSE NO. 03-16-00038-CV 3 CERTIFICATE OF COMPLIANCE I certify that the foregoing document contains 4035 words, in compliance with Rule 9,.4 of the Texas Rules of Appellate Procedure. /s/ Daniel R. Smith DANIEL R. SMITH SUR-REPLY OF APPELLEES CAUSE NO. 03-16-00038-CV 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of foregoing instrument has been served, on this the 20th day of June, 2016 to the following: Via E-Service Andralee Cain Lloyd Cynthia A. Morales Michael Siegel Attorney General’s Office City of Austin – Law Department Financial Litigation and Charitable Trusts andralee.lloyd@austintxas.gov Division michael.siegel@austintexas.gov cynthia.morales@texasattorneygeneral.gov Attorneys for Appellant The City of Attorney for Appellee State of Texas Austin G. Todd Stewart Lorri Michel Tammy White-Chaffer Raymond Gray Deborah S. Cartwright Shane Rogers OLSON & OLSON, LLP MICHEL GRAY LLP tstewart@olsonllp.com lorri@michelgray.com tchaffer@olsonllp.com raymond@michelgray.com dcartwright@olsonllp.com shane@michelgray.com Attorneys for Appellee Travis County Attorneys for Homeowners Intervenors Appraisal District and Defendant Junkyard Dogs Bill Aleshire Thomas Michel Aleshire Law, PC Griffith, Jay & Michel, LLP bill@aleshirelaw.com thomasm@lawgjm.com Attorneys for Appellee/Cross- Appellant Junk Yard Dogs /s/ Daniel R. Smith DANIEL R. SMITH SUR-REPLY OF APPELLEES CAUSE NO. 03-16-00038-CV 5