Wayne Novy, by and Through His Legal Guardian Forrest Novy v. Texas Health and Human Services Commission And Chris Traylor, in His Official Capacity as Executive Commissioner of the Texas Health and Human Services Commission

ACCEPTED
03-15-00201-CV
8090210
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/4/2015 11:07:40 AM
JEFFREY D. KYLE
CLERK
No. 03-15-00201-CV
_______________________________________
FILED IN
3rd COURT OF APPEALS
IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
AT AUSTIN, TEXAS 12/4/2015 11:07:40 AM
JEFFREY D. KYLE
_______________________________________ Clerk

WAYNE NOVY, by and through his legal guardian Forrest Novy,
Appellant,

vs.

TEXAS HEALTH AND HUMAN SERVICES COMMISSION and CHRIS TRAYLOR, in
his official capacity as Executive Commissioner of the Texas Health and
Human Services Commission,
Appellees.
_______________________________________

ON APPEAL FROM COUNTY COURT AT LAW NO. 1, TRAVIS COUNTY
______________________________________

APPELLANT’S CONDITIONAL, UNOPPOSED THIRD MOTION FOR EX-
TENSION OF TIME TO FILE OPENING BRIEF

Pursuant to Rule 10.5(b)(1) of the Texas Rules of Appellate Procedure,

Appellant Wayne Novy (“Mr. Novy”), by and through his legal guardian

Forrest Novy, moves the Court in this unopposed, but conditional, motion

for a thirty-day extension of time to file his opening brief in this matter.

1. Mr. Novy is appealing from the Order Granting Defendants’ Plea to

the Jurisdiction, signed on April 1, 2015, by the presiding judge of the Coun-

ty Court at Law No. 1, Travis County.

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 2. The current deadline for Mr. Novy to file his opening brief in this

appeal is—or, at least, appears to be*—December 18, 2015.

3. On November 13, 2015, all the parties to this appeal—that is, Mr.

Novy on one side and the Texas Health and Human Services Commission

and its Executive Commissioner on the other—jointly moved the Court to

extend the abatement period another three months, until March 18, 2016.

The reason was that the administrative action giving rise to the substantive

claim is under re-evaluation with the possibility that the parties’ dispute

could end up being resolved without the necessity of a court ruling. Included

in the parties’ request was a request that, for clarity, Mr. Novy’s opening

brief be made due fifteen days from the end of that abatement period.

4. The Court has not yet acted on the parties’ November 13th joint mo-

tion; it remains pending as of the filing of this conditional extension motion.

*
August 21, 2015, is the last deadline expressly set for filing Mr. Novy’s opening brief. See
Clerk Letter, July 13, 2015 (noting granting second extension motion). Before that August
21st deadline, all the parties to the case filed a joint motion to abate proceedings and,
among other things, requested that the deadline for Mr. Novy’s opening brief be set for
ten days after the end of the abatement period. See Joint Motion by All Parties to Abate
Appellate Proceedings (Aug. 13, 2015) at 3, ¶ 6.b. The Court granted the first joint
abatement request on August 21st, the same day that Mr. Novy’s opening brief would
have been due. See Mem. Op. (Aug. 21, 2015) (per curiam). The Court’s opinion, howev-
er, did not directly address the additional 10 days for briefing. Instead, it provided that
“appellate deadlines will be tolled during” the abatement and that, absent further order,
the appeal would be automatically reinstated on December 18, 2015. Id. at 1. Thus, it ap-
pears that, if the Court has not extended the abatement period requested by the parties
before December 18th, Mr. Novy’s brief is currently due on that date.

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In the absence of favorable action on that motion, then, Mr. Novy’s opening

brief will be due on December 18th. See fn. *, below.

5. As a precaution in the event that, by December 18, 2015, the Court

has not acted on and granted the parties’ joint motion to extend the abate-

ment period to March 18, 2016, Mr. Novy seeks an extension of thirty

days—until January 18, 2016—to file his opening brief in this case.

6. The additional thirty days requested here—conditionally and as a

precaution—are needed because otherwise the current briefing deadline of

December 18th would be virtually impossible for Mr. Novy’s counsel to

meet. Below-signed counsel represents the City of Austin, which is the de-

fendant in the pending case of Zimmerman v. City of Austin, 1:15cv628-LY,

U.S. Dist. Ct., West. Dist. of Tex., Austin Div’n. The presiding judge, Unit-

ed States District Judge Lee Yeakel, set an accelerated trial schedule for the

case. Trial is set to commence at 9:00 a.m. on Monday, December 14th. The

parties have estimated 2-3 days for trial. Afterwards, the scheduling order

provides for post-trial briefing. The first round of briefs are due eight days

after the close of evidence; the next round, January 8th; and the final round,

January 15th. Pretrial discovery, primarily in the form of nineteen deposi-

tions, has been compressed into the period starting October 21st and ending

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only this past Wednesay, December 2nd. The coming week is necessarily de-

voted to required pretrial filings and related trial preparation. In short, be-

low-signed counsel simply has not had time, and will not have time, to de-

vote to drafting and filing a brief in this case prepared with the requisite care

for his client and the Court. The requested additional time—only needed if

the joint abatement motion is not granted sometime soon—will allow the

time for preparation of a helpful brief.

7. This is Mr. Novy’s third request for an extension of time to file his

opening brief.

Based upon the foregoing matters, and in the event the Court has not

otherwise granted the pending joint motion to extend the current abatement

period to March 18, 2016, Mr. Novy urges the Court to grant this unopposed

motion and allow him thirty additional days—until January 18, 2016—to file

his opening brief in this case.

Respectfully submitted,

__/s/ Renea Hicks______

Renea Hicks
State Bar No. 09580400
LAW OFFICE OF MAX RENEA HICKS
101 West 6th Street, Suite 504
Austin, Texas 78701-2934
(512) 480-8231

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 (512) 480-9105 fax
rhicks@renea-hicks.com

ATTORNEY FOR WAYNE NOVY

CERTIFICATE OF CONFERENCE

I conferred by e-mail on December 4, 2015, with Eugene Clayborn, coun-
sel for Appellees, on whether his clients would oppose the conditional exten-
sion requested in this motion. By reply e-mail on the same day, he indicated
that he would not oppose the relief requested.

_/s/ Renea Hicks___________
Renea Hicks

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Appellant’s Condi-
tional, Unopposed Third Motion for Extension of Time to File Opening
Brief has been served through the electronic filing system on the following
counsel of record for the appellees on December 4, 2015:

Eugene A. Clayborn, Assistant Attorney General
Deputy Chief, Administrative Law Division
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
eugene.clayborn@texasattorneygeneral.gov.

_/s/ Renea Hicks___________
Renea Hicks

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