Texas Education Agency and Mike Morath, Commissioner of Education, in His Official Capacity v. American Youthworks, Inc., D/B/A American Youthworks Charter School Honors Academy, Inc., D/B/A Honors Academy And Azleway Inc., D/B/A Azleway Charter School

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ACCEPTED 03-14-00360-CV 7277082 THIRD COURT OF APPEALS AUSTIN, TEXAS 10/7/2015 4:04:52 PM JEFFREY D. KYLE CLERK NOS. 03-14-00283-CV & 03-14-00360-CV In the Court Of Appeals 3rd AUSTIN,FILED IN COURT OF APPEALS TEXAS for the Third Judicial District10/7/2015 4:04:52 PM JEFFREY D. KYLE Austin, Texas Clerk TEXAS EDUCATION AGENCY and MICHAEL L. WILLIAMS, COMMISSIONER OF EDUCATION, in his OFFICIAL CAPACITY, Appellants/Defendants, V. AMERICAN YOUTHWORKS, INC., d/b/a AMERICAN YOUTHWORKS CHARTER SCHOOL, HONORS ACADEMY, INC., d/b/a HONORS ACADEMY, and TWO AZLEWAY, INC. d/b/a/ AZLEWAY CHARTER SCHOOL, Appellees/Plaintiffs/Intervenors. On Appeal from the 261st District Court Travis County, Texas Cause No. D-1-GN-14-000672 APPELLANTS’ OPPOSED MOTION FOR LEAVE TO FILE POST SUBMISSION LETTER KEN PAXTON SHELLEY NIETO DAHLBERG Attorney General of Texas Associate Deputy Attorney General For Civil Litigation CHARLES E. ROY State Bar No. 24012491 First Assistant Attorney OFFICE OF THE ATTORNEY GENERAL General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 JAMES E. DAVIS Tel.: (512) 936-1864 Deputy Attorney General for Fax: (512) 320-0667 Civil Litigation shelley.dahlberg@texasattorneygeneral.gov ATTORNEYS FOR RESPONDENT TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS: This motion seeks leave to file a post-submission letter brief. Oral argument in the above-referenced matter was held on September 24, 2015. During argument, Justice Field inquired whether amendments to TEX. EDUC. CODE § 12.115(c), enacted in Senate Bill 2 in 2013, are unconstitutionally retroactive under the Supreme Court’s analysis in Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126 (Tex. 2010). Appellants submit that under Robinson and the Court’s later opinion in Union Carbide Corp. v. Synatzske, 438 S.W.3d 39 (Tex. 2014), the statute is not unconstitutionally retroactive. Given the length of Appellees’ argument, Counsel for Appellants seeks this leave to further explain the Commissioner’s argument related to Justice Field’s question for which there was little time allotted during rebuttal. Accordingly, Appellants request that the Court grant leave to file their Post Submission Letter Brief. Respectfully submitted, KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General JAMES E. DAVIS Deputy Attorney General for Civil Litigation 2 General Litigation Division Post Office Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 (Telephone) (512) 320-0667 (Facsimile) CERTIFICATE OF CONFERENCE I certify that my legal assistant, at my direction, emailed Appellees’ counsel on October 6, 2015 at 9:13 a.m. to determine whether they are opposed to this motion. I was copied on the email. Mr. O’Hanlon indicated that he was unopposed to the motion but deferred to Mr. Schulman given that the issues addressed in the letter pertain to American YouthWorks’ claim. Mr. Schulman asked for additional time to consider the content of the letter. As of the filing of this motion, I have not heard further from Appellees’ counsel. I therefore assume the motion is opposed. 3 CERTIFICATE OF SERVICE I hereby certify that on October 7, 2015 the foregoing document was filed electronically and sent to the following counsel of record via email and/or ECF Notification: Robert A. Schulman Kevin O'Hanlon SCHULMAN, LOPEZ& HOFFER, L.L.P. Leslie McCollom Joseph E. Hoffer 808 West Avenue 517 Soledad Street Austin, Texas 78701 San Antonio, Texas 78205-1508 kohanlon@808west.com rschulman@slh-law.com lmccollom@808west.com jhoffer@slh-law.com Attorneys for Plaintiff-Intervenor Honors Academy, Inc. Cris Feldman 3355 West Alabama Street, Suite 1220 Susan G. Morrison Houston, Texas 77098 The Fowler Law Firm, PC cris.feldman@thefeldmanfirmpc.com 919 Congress Ave. Suite 900 Attorneys for Plaintiff Austin, TX 78701 smorrison@thefowlerlawfirm.com Attorneys for Plaintiff- IntervenorAzleway Charter School 4