Rent-A-Center, Inc. v. Glenn Hegar, in His Capacity as Comptroller of Public Accounts of the State of Texas And Ken Paxton, in His Capacity as Attorney General of the State of Texas

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ACCEPTED 03-13-00101-CV 6038669 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/13/2015 1:51:14 PM JEFFREY D. KYLE CLERK No. 03-13-00101-CV FILED IN In the Court of Appeals 3rd COURT OF APPEALS AUSTIN, TEXAS for the Third Judicial District 7/13/2015 1:51:14 PM JEFFREY D. KYLE Austin, Texas Clerk RENT-A-CENTER, INC., Appellant, v. GLENN HEGAR, COMPTROLLER OF PUBLIC ACCOUNTS; AND KEN PAXTON, ATTORNEY GENERAL, Appellees. On Appeal from the 250th Judicial District Court of Travis County, Texas APPELLEES’ RESPONSE IN OPPOSITION TO APPELLANT’S MOTION FOR REHEARING KEN PAXTON SCOTT A. KELLER Attorney General of Texas Solicitor General CHARLES E. ROY MATTHEW H. FREDERICK First Assistant Attorney Deputy Solicitor General General State Bar No. 24040931 OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-6407 Fax: (512) 474-2697 Matthew.Frederick @texasattorneygeneral.gov COUNSEL FOR APPELLEES ISSUE PRESENTED Whether the Court of Appeals should decide, in the first instance, a question that the district court did not reach, rather than remand and allow the district court to make appropriate findings of fact and conclusions of law. ARGUMENT AND AUTHORITIES Rent-A-Center’s motion for rehearing should be denied because remand is necessary for further proceedings. The motion for rehearing rests on an incomplete statement of Texas Rule of Appellate Procedure 43.3, which provides: When reversing a trial court’s judgment, the court must render the judgment that the trial court should have rendered, except when: (a) a remand is necessary for further proceedings; or (b) the interests of justice require a remand for another trial. TEX. R. APP. P. 43.3. Rent-A-Center argues that the Court should rule, in the first instance, on the cost-of-goods-sold issue because it “must render the judgment that the trial court should have rendered.” Mot. for Reh’g. 3. But Rent-A-Center omits the qualifying clause, “except when . . . a remand is necessary for further proceedings.” TEX. R. APP. P. 43.3. In this case, remand is necessary because the trial court did not rule on Rent-A-Center’s claim regarding its cost of goods sold. The district court concluded, in light of its ruling on the retail-trade issue, that “the issue regarding cost of goods sold is moot.” CR 114. Accordingly, the trial court did not determine the cost of goods sold by Rent-A-Center in 2007, nor did it determine whether that figure must be reduced to account for depreciation claimed by Rent-A-Center. “[A] court of appeals can reverse the trial court’s judgment only when the trial court is in error.” Chrismon v. Brown, 246 S.W.3d 102, 116 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Because the trial court entered no judgment on the cost-of-goods-sold issue, there is no error to address. The trial court’s only error, as determined by this Court, concerned the question whether Rent-A-Center was engaged primarily in retail trade. Because the trial court’s ruling on that issue prevented it from reaching the cost-of-goods-sold issue, the appropriate remedy is to remand so that the trial court may address that question in the first instance. 2 PRAYER Appellees respectfully request that the Court deny Rent-A-Center’s motion for rehearing and remand for further proceedings. Respectfully submitted. KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General SCOTT A. KELLER Solicitor General /s/ Matthew H. Frederick MATTHEW H. FREDERICK Deputy Solicitor General State Bar No. 24040931 OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-6407 Fax: (512) 474-2697 Matthew.Frederick @texasattorneygeneral.gov COUNSEL FOR APPELLEES 3 CERTIFICATE OF SERVICE On July 13, 2015, this Appellees’ Motion for Rehearing was served via CaseFileXpress on: Farley P. Katz Forrest M. Seger III STRASBURGER PRICE OPPENHEIMER BLEND 300 Convent Street, Suite 900 San Antonio, Texas 78204 Daniel L. Butcher P. Michael Jung STRASBURGER PRICE 901 Main Street, Suite 4300 Dallas, Texas 75202 Robert M. O’Boyle Clinton A. Rosenthal STRASBURGER & PRICE, LLP 720 Brazos Street, Suite 700 Austin, Texas 78701 COUNSEL FOR APPELLANT /s/ Matthew H. Frederick MATTHEW H. FREDERICK 4 CERTIFICATE OF COMPLIANCE In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this brief contains 380 words, excluding the portions of the brief exempted by Rule 9.4(i)(1). /s/ Matthew H. Frederick MATTHEW H. FREDERICK 5