ACCEPTED
03-15-00285-CV
6504860
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/14/2015 2:09:28 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00285-CV
____________________________________________________
FILED IN
3rd COURT OF APPEALS
IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
AT AUSTIN, TEXAS 8/14/2015 2:09:28 PM
____________________________________________________
JEFFREY D. KYLE
VOLKSWAGEN GROUP OF AMERICA, INC., and AUDI OF Clerk AMERICA,
INC.,
Appellants,
v.
JOHN WALKER III, in his Official Capacity as Chairman of the Texas
Department of Motor Vehicles Board, and the HONORABLE MICHAEL J.
O’MALLEY, and the HONORABLE PENNY A. WILKOV, in their Official
Capacities as Administrative Judges for the State Office of Administrative
Hearings,
Appellees.
____________________________________________________
On Appeal from the 353rd District Court, Travis County, Texas
___________________________________________________
JOHN WALKER, III’S APPELLEE BRIEF
____________________________________________________
KEN PAXTON DENNIS M. MCKINNEY
Attorney General of Texas Assistant Attorney General
State Bar No. 13719300
CHARLES E. ROY OFFICE OF THE TEXAS ATTORNEY GENERAL
First Assistant Attorney General ADMINISTRATIVE LAW DIVISION
P.O. Box 12548
JAMES E. DAVIS Austin, Texas 78711-2548
Deputy Attorney General for Telephone: (512) 475-4020
Civil Litigation Facsimile: (512) 320-0167
dennis.mckinney@texasattorneygeneral.gov
DAVID A. TALBOT, JR. Attorneys for John Walker III
Chief, Administrative Law Division
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Parties to the Trial Court’s Order:
Defendants/Appellees: John Walker III, in his Official Capacity as
Chairman of the Texas Department of Motor
Vehicles Board
The Honorable Michael J. O’Malley, and the
Honorable Penny A. Wilkov, in their Official
Capacities as Administrative Law Judgment for the
State Office of Administrative Hearings
Intervenors/ Appellees: Ricardo Weitz, Hi Tech Imports North, LLC, Hi
Tech Imports South, LLC, Budget Leasing, Inc.
d/b/a Audi North Austin and Audi South Austin
Plaintiffs/Appellants:
Volkswagen Group of America, Inc., and Audi of
America, Inc.
__________________________________
Counsel:
For Appellee Walker:
Dennis M. McKinney
Assistant Attorney General
State Bar No. 13719300
OFFICE OF THE TEXAS ATTORNEY GENERAL
ADMINISTRATIVE LAW DIVISION
P.O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 475-4020
Facsimile: (512) 320-0167
dennis.mckinney@texasattorneygeneral.gov
ii
For Appellees O’Malley and Wilkov:
Kimberly Fuchs
Assistant Attorney General
State Bar No. 24044140
Chief, Open Records Litigation
Administrative Law Division
Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-4195
Facsimile: (512) 320-0167
kimberly.fuchs@texasattorneygeneral.gov
For Appellees Ricardo Weitz, et al.:
J. Bruce Bennett
Cardwell, Hart & Bennett
State Bar. No. 02145500
807 Brazos Suite 1001
Austin, Texas 78701
jjb.chblaw@abcglobal.net
Telephone: (512) 322-0011
Facsimile: 512-322-0808
William R. Crocker
State Bar. No. 05091000
P.O. Box 1418
Austin, Texas 78767
crockerlaw@earthlink.net
Telephone: (512) 478-5611
Facsimile: 512-474-2540
iii
For Appellants:
BAKER & HOSTETLER LLP
Billy M. Donley
State Bar No. 05977085
Mark E. Smith
State Bar No. 24070639
811 Main Street, Suite 1100
Houston, Texas 77002
(713) 751-1600 (Telephone)
(713) 751-1717 (Facsimile)
bdonley@bakerlaw.com
mesmith@bakerlaw.com
KING & SPALDING
S. Shawn Stephens
State Bar No. 19160060
James P. Sullivan
State Bar No. 24070702
1100 Louisiana Suite 4000
Houston, Texas 77002
Telephone: (713) 751-3200
Facsimile: (713) 751-3290
iv
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF CONTENTS ...........................................................................................v
INDEX OF AUTHORITIES.................................................................................... vi
RECORD AND PARTY REFERENCES ............................................................... ix
STATEMENT REGARDING ORAL ARGUMENT ...............................................x
STATEMENT OF FACTS ........................................................................................x
ISSUES PRESENTED FOR REVIEW .................................................................. xii
STANDARD OF REVIEW .......................................................................................2
SUMMARY OF THE ARGUMENT ........................................................................2
ARGUMENT .............................................................................................................3
A. The trial court properly granted Walker’s Plea to the Jurisdiction. ................3
B. Remand of the matter to SOAH for consideration of additional
evidence was not an ultra vires act. .................................................................9
C. The remand order complies with the motion to remand the case as
passed by the Board. ......................................................................................11
CONCLUSION AND PRAYER .............................................................................12
CERTIFICATE OF COMPLIANCE .......................................................................13
CERTIFICATE OF SERVICE ................................................................................14
APPENDIX ..............................................................................................................16
v
INDEX OF AUTHORITIES
Cases
Appraisal Review Bd. of Harris Cnty. Appraisal Dist. v. O’Connor
& Assoc., 267 S.W.3d 413 (Tex. App.—Houston [14th Dist.] 2008,
no pet.) ..................................................................................................................7
Bd. of Trustees of Galveston Wharves v. O’Rourke, 405 S.W.3d 228
(Tex. App.—Houston [1st Dist.] 2013, no pet.) ..................................................8
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) .................................5
Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd. of Tex. Dep’t of
Transp., 156 S.W.3d 91 (Tex. App.—Austin 2004, pet. denied) ........................6
City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) .......................... xii, 5, 6
Coastal Habitat Alliance v. Pub. Util. Comm’n of Tex., 294 S.W.3d
276 (Tex. App.—Austin 2009, no pet.) ...........................................................7, 8
Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on Envtl.
Quality, 307 S.W.3d 505 (Tex. App.—Austin 2010, no pet.) .............................9
Dir. of Dep’t of Agric. & Envtl. v. Printing Indus. Ass’n of Tex.,
600 S.W.2d 264 (Tex. 1980) ................................................................................9
El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309
(Tex. 1999) ...........................................................................................................2
Friends of Canyon Lake, Inc. v. Guadalupe-Blanco River Auth.,
96 S.W.3d 519 (Tex. App.—Austin 2002, pet. denied).......................................7
Lindsay v. Sterling, 690 S.W.2d 560 (Tex. 1985)...................................................4
N. Alamo Water Supply Corp. v. Tex. Dep’t of Health, 839 S.W.2d
455 (Tex. App.—Austin 1992, writ denied) ........................................................8
vi
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) .........................7
Quick v. City of Austin, 7 S.W.3d 109 (Tex. 1998) ................................................2
Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006). .....................5
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) ..........4, 5
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004).............2
Tex. Logos, L.P. v. Tex. Dep’t of Transp., 241 S.W.3d 105 (Tex. App.
—Austin 2007, no pet.) ........................................................................................8
Tex. State Bd. Veterinary Med. Exam’rs v. Giggleman, 408 S.W.3d 696
(Tex. App.—Austin 2004, no pet.) ......................................................................5
Thomas v. Long, 207 S.W.3d 334 (Tex. 2006) .......................................................5
Statutes
Tex. Govt’ Code § 2001.058....................................................................................10
Tex. Gov’t Code § 2001.144(2) .................................................................................3
Tex. Gov’t Code § 2001.145..................................................................................3, 4
Tex. Gov’t Code § 2001.146..................................................................................... 4
Tex. Occ. Code § 2301.151 ........................................................................ x, 6, 9, 10
Tex. Occ. Code § 2301.153 .......................................................................................6
Tex. Occ. Code § 2301.359 ...................................................................................6, 8
Tex. Occ. Code § 2301.360 ...................................................................................6, 8
Tex. Occ. Code § 2301.458 ...................................................................................6, 8
vii
Tex. Occ. Code § 2301.702 .....................................................................................10
Tex. Occ. Code § 2301.709 .................................................................................9, 10
Tex. Occ. Code § 2301.709(b) .................................................................................10
Tex. Occ. Code § 2301.709(c) ...................................................................................7
Tex. Occ. Code § 2301.709(d) ...................................................................................7
Tex. Occ. Code § 2301.751 .....................................................................................10
viii
RECORD AND PARTY REFERENCES
References to the clerk’s record will be referred to as “CR ____.”
The reporter’s record will be referred to as “RR (Vol. ___) ____.”
Appellee, John Walker III, will be referred to as “Walker” or “the Board”.
Appellees, Honorable Michael J. O’Malley, and Honorable Penny A. Wilkov, will
be collectively referred to as “SOAH Appellees.”
Appellants, Volkswagen of America, Inc. and Audi of America, Inc., will be
collectively referred to as “Audi,” or “Appellants.”
Appellees Ricardo Weitz, Hi Tech Imports North, LLC, Hi Tech Imports south,
LLC, Budget Leasing, Inc. d/b/a Audi North Austin and Audi South Austin will be
collectively referred to as the “Weitz Appellees” or “Intervenors.”
ix
STATEMENT REGARDING ORAL ARGUMENT
There is no need for the Court to entertain oral argument in this case because
the issues in this appeal have been settled through prior case rulings. However, if
the Court determines that it would benefit from oral argument then Appellee
requests it be allowed to present argument as well as Appellant.
STATEMENT OF FACTS
Although Appellants’ Statement of Facts contains the operative facts of the
case it also contains improper argument and mischaracterizations of the facts that
make it impossible for Appellee Walker to adopt such Statement of Facts. The
operative facts of the case that are pertinent to this appeal are as follows:
Appellants and the Weitz Appellees are in a dispute over the proposed sale
and transfer of two Austin, Texas, Audi dealerships. CR 367-369. The Board has
the statutory authority to resolve such disputes. Tex. Occ. Code § 2301.151, et
seq. The dispute was submitted to the Board for a resolution and the Board
subsequently referred the case to SOAH for trial. CR 399-502. The SOAH
Appellees then issued a Proposal for Decision recommending that the Board issue
a final decision rejecting the proposed transferees, (the Weitz Appellees). CR 399-
502. The Board issued a final order dismissing the case for a lack of jurisdiction.
CR 503-505.
x
Rehearing was granted by the Board pursuant to a motion for rehearing filed
by the Weitz group. CR 1647-1667 and 1794. Upon such rehearing, the Board
voted to remand the case to SOAH for further proceedings, including consideration
of an April 30, 2013, letter between the parties to the dispute. CR 168-169. The
letter in question is attached hereto as Appendix Tab 8. On February 13, 2015,
Walker signed an Interim Order remanding the case to SOAH for further
proceedings. CR 1634-1635. Appellant Audi filed a suit in district court in Travis
County, Texas, alleging ultra vires acts in the remand of the case and the reopening
of evidence at SOAH and seeking to enjoin the remanded SOAH proceedings from
going forward. CR 117-148. After the denial of a request for temporary
restraining order, Walker filed his Plea to the Jurisdiction alleging the doctrine of
sovereign immunity protected him and the Board from suit. CR 821-827. The trial
court granted the Pleas to the Jurisdiction and dismissed the case for want of
subject matter jurisdiction. CR 2030-2031. Audi then filed this appeal and sought
temporary relief to prevent SOAH from taking further action on the remanded
case. Such request for temporary relief was denied by this Court on July 8, 2015.
xi
ISSUES PRESENTED FOR REVIEW
1. Defendants/Appellees were sued in their official capacities for ultra vires
acts as required by the Supreme Court’s City of El Paso v. Heinrich, 284 S.W.3d
366, 369-70, 73 (Tex. 2009) decision. Did the trial court err by dismissing this
case since the Defendants/Appellees were not entitled to governmental immunity
because their actions (reopening evidence and ordering/conducting a remand of the
administrative Contested Case after a PFD had issued) exceeded their statutory
powers?
2. Did the trial court err by dismissing the case below since the Texas Supreme
Court has held that exhaustion of administrative remedies is not required where, as
here, a government official’s actions exceed his or her powers?
Since both of Appellants’ issues set forth above contain self-serving argument and
can be combined into one issue, both will be addressed herein as one in the
following manner:
A. The trial court properly granted Walker’s Plea to the Jurisdiction.
B. Remand of the matter to SOAH for consideration of additional evidence
was not an ultra vires act.
C. The remand order of the Board complies with motion to remand the
case as it was passed by the Board.
xii
NO. 03-15-00285-CV
____________________________________________________
IN THE THIRD COURT OF APPEALS
AT AUSTIN, TEXAS
____________________________________________________
VOLKSWAGEN GROUP OF AMERICA, INC., and AUDI OF AMERICA,
INC.,
Appellants,
v.
JOHN WALKER III, in his Official Capacity as Chairman of the Texas
Department of Motor Vehicles Board, and the HONORABLE MICHAEL J.
O’MALLEY, and the HONORABLE PENNY A. WILKOV, in their Official
Capacities as Administrative Judges for the State Office of Administrative
Hearings,
Appellees.
____________________________________________________
On Appeal from the 353rd District Court, Travis County, Texas
___________________________________________________
JOHN WALKER, III’S APPELLEE BRIEF
____________________________________________________
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
Appellee, John Walker III, in his Official Capacity as Chairman of the Texas
Department of Motor Vehicles Board (“Walker”), by and through the Office of the
Attorney General of Texas and the undersigned Assistant Attorney General,
submits the following brief in the above-captioned appeal.
1
STANDARD OF REVIEW
A question of law is reviewed de novo. El Paso Natural Gas Co. v. Minco
Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999). Therefore, the granting of a plea
to the jurisdiction shall be reviewed de novo. Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In a de novo review, the reviewing
court conducts a review of the record to make its own legal determinations and
conclusions. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998).
SUMMARY OF THE ARGUMENT
The trial court does not have subject matter jurisdiction of this case because
there is no final order of the Board and no motion for rehearing has been denied.
The order being complained of by Appellants is an interim order. Therefore,
Appellants have not exhausted their administrative remedies and the trial court has
no jurisdiction of this case. Until a motion for rehearing is overruled, the
administrative order is not a final and appealable order. In short, the Appellants
sought to enjoin the administrative process where there is not a final decision.
Appellee Walker and the Board’s action in remanding the case to SOAH for
the consideration of additional evidence was not an ultra vires act. The Legislature
endowed upon the Texas Department of Motor Vehicles (“TxDMV”) the exclusive
jurisdiction to determine disputes between manufacturers and dealers concerning
2
sales of automobile dealerships within the State of Texas. Appellants allege the
remand order was ultra vires because that power was not specified by statute.
However, TxDMV’s jurisdiction over manufacturer/ dealer disputes is undisputed.
The fact that TxDMV’s Board made a decision that Appellants did not like does
not make that decision ultra vires. Even if the remand order was given in error,
Appellants have a legal remedy to correct such alleged mistake by virtue of its suit
for judicial review upon the issuance of a final order of the Board.
ARGUMENT
A. The trial court properly granted Walker’s Plea to the Jurisdiction.
The trial court does not have subject matter jurisdiction of this case because
there is no final order of the Board and no motion for rehearing has been denied.
The order of remand being complained of by Appellants is an interim order. CR
168-169. Appellants have not exhausted their administrative remedies and the
trial court properly dismissed the case for lack of subject matter jurisdiction of this
case. Tex. Gov’t Code § 2001.145 states that a timely filed Motion for Rehearing
is a prerequisite to the filing of an appeal of an administrative order. Tex. Gov’t
Code § 2001.144(2) states that when a motion for rehearing is timely filed a
decision is final when “(A) the order overruling the motion for rehearing is
rendered; or (B) the motion is overruled by operation of law.”
3
Tex. Gov’t Code § 2001.146 provides that a motion for rehearing is overruled as a
matter of law if, in the absence of a date fixed by order, no order on the motion for
rehearing is rendered within 90 days after the date the party received notice of the
decision. Until a motion for rehearing is overruled, the administrative order is not
a final and appealable order. The Appellants continue to seek to enjoin the
administrative process, their legislatively mandated legal remedy, but there is not a
final decision until such time as the Motion for Rehearing is overruled, by order or
as a matter of law. Until such time, said decision by the Board is not a final and
appealable order as provided in the Administrative Procedures Act. Tex. Gov’t
Code § 2001.145. In this case, Appellants seek to enjoin the enforcement of an
administrative order prior to the issuance of a final order, much less the disposition
of a motion for rehearing. This action is inappropriate because the trial court
cannot obtain jurisdiction over the dispute until the Appellants have exhausted
their administrative remedies. See Lindsay v. Sterling, 690 S.W.2d 560 (Tex.
1985). This matter is just not ripe for adjudication because the administrative
process is not completed.
Subject matter jurisdiction is essential to the authority of a court to decide a
case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).
In any lawsuit, a plaintiff must allege facts that affirmatively demonstrate the
4
court’s jurisdiction to hear the cause of action. Id. at 446. A plea to the
jurisdiction is the vehicle through which a party contests the trial court’s authority
to determine the subject matter of a cause of action. Bland Indep. Sch. Dist. v.
Blue, 34 S.W.3d 547, 554 (Tex. 2000). The purpose of a plea to the jurisdiction is
to dismiss a cause of action without regard to whether it has merit. Id. Sovereign
immunity from suit deprives a court of subject matter jurisdiction if jurisdictional
prerequisites are not followed. Reata Const. Corp. v. City of Dallas, 197 S.W.3d
371, 374 (Tex. 2006). When an administrative agency has exclusive jurisdiction
over a dispute dismissal of the action is mandatory. Thomas v. Long, 207 S.W.3d
334, 340 (Tex. 2006). Plaintiffs’ claims for declaratory relief against Walker are
barred because, in City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009), the
Texas Supreme Court expressly held that ultra vires suits for declaratory relief
may only be brought against state officials in their official capacities and not
against the state itself or its agencies. Heinrich, 284 S.W.3d at 372-73; accord
Tex. State Bd. Veterinary Med. Exam’rs v. Giggleman, 408 S.W.3d 696 (Tex.
App.—Austin 2004, no pet.), at *2 n.10. These ultra vires acts must either involve
actions that exceed that state official’s authority or involve a refusal to perform a
purely ministerial act. Suit for ultra vires acts will not lie when an official is
required to exercise his or her discretion in the performance of his or her duties.
5
Heinrich at 372. Here, all of Appellants’ claims for declaratory relief are premised
on alleged ultra vires acts involving the Board’s decision to remand the
administrative case to SOAH for consideration of additional evidence. Appellants
claim that the Board exceeded its authority by remanding the matter to SOAH for
further evidence. Clearly, the actions of Walker and the Board in the
administrative process did not exceed their statutory authority in as much as
TxDMV and it’s Board are granted exclusive jurisdiction to over all aspects of the
distribution and sale of motor vehicles in the State of Texas, including original
jurisdiction to determine its own jurisdiction. Tex. Occ. Code § 2301.151. See
Appendix Tab 1. Specifically, the Board may take “any action that is specifically
designated or implied under [Chapter 2301] or that is necessary or convenient to
the exercise of the power and jurisdiction granted under Subsection (a). Tex. Occ.
Code § 2301.151. Additionally, “the board has all powers necessary, incidental, or
convenient to perform a power or duty expressly granted under this chapter.” Tex.
Occ. Code § 2301.153. See Appendix Tab 2. TxDMV and it’s Board are further
vested with authority to regulate all aspects of the sales of dealerships and
dealership/manufacturer disputes. Tex. Occ. Code §§ 2301.359, 2301.360,
2301.458. See Appendix Tabs 3 and 4. See also Buddy Gregg Motor Homes, Inc.
v. Motor Vehicle Bd. of Tex. Dep’t of Transp., 156 S.W.3d 91 (Tex. App.—Austin
6
2004, pet. denied). In the dispute between Appellants and the Weitz Appellees, the
Legislature has given the Board the unambiguous authority to rule on all issues.
The Board’s remand order in this case cannot be ultra vires since it related directly
to the dispute over the sale of the Audi dealerships in question and was conducive
to the issuance of a final order as that power was granted to the Board in Tex. Occ.
Code § 2301.709(c). See Tex. Occ. Code § 2301.709(d). See Appendix Tab 5. An
action is ultra vires only when an agency issues an order completely outside its
statutory jurisdiction or “without any authority whatsoever.” Friends of Canyon
Lake, Inc. v. Guadalupe-Blanco River Auth., 96 S.W.3d 519 (Tex. App.—Austin
2002, pet. denied); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89
(1984). The ultra vires exception to the requirement of exhaustion of
administrative remedies only applies when “the administrative agency lacks
jurisdiction. Appraisal Review Bd. of Harris Cnty. Appraisal Dist. v. O’Connor &
Assoc., 267 S.W.3d 413, 419 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
Mere mistakes or errors in procedure in the exercise of the Board’s authority do
not render the Board’s action ultra vires. Friends of Canyon Lake, Inc. v.
Guadalupe-Blanco River Auth., 96 S.W.3d at 528; Coastal Habitat Alliance v.
Pub. Util. Comm’n of Tex., 294 S.W.3d 276, 285 (Tex. App.—Austin 2009, no
pet.). Appellants claim the Board made a mistake in remanding the case to SOAH
7
because it did not have statutory authority to do so. It is clear that the Board has
exclusive jurisdiction over manufacturer/dealership disputes. Tex. Occ. Code §§
2301.359, 2301.360, 2301.458. Even assuming arguendo that the Board made a
mistake in issuing such order, it had clear statutory jurisdiction to rule on the
dispute. It is not ultra vires for an agency to incorrectly interpret the law nor does
the mere allegation of ultra vires acts avoid the sovereign immunity enjoyed by
State entities. Coastal Habitat Alliance v. Pub. Util. Comm’n of Tex., 294 S.W.3d
276, 285 (Tex. App.—Austin 2009, no pet.). “The fact that the [agency] might
decide ‘wrongly’ in the eyes of an opposing party does not vitiate the agency’s
jurisdiction to make an initial decision.” N. Alamo Water Supply Corp. v. Tex.
Dep’t of Health, 839 S.W.2d 455, 458-59 (Tex. App.—Austin 1992, writ denied).
Further, rulings in the administrative process necessarily involve the exercise of
statutory discretion by the agency officials, so the ultra vires exception to the
doctrine of sovereign immunity is not implicated.
Finally, the trial court lacks jurisdiction over this matter because Appellants
seek to control State action in contravention of the doctrine of sovereign immunity.
Bd. of Trustees of Galveston Wharves v. O’Rourke, 405 S.W.3d 228 (Tex. App.—
Houston [1st Dist.] 2013, no pet.); Tex. Logos, L.P. v. Tex. Dep’t of Transp., 241
S.W.3d 105, 118 (Tex. App.—Austin 2007, no pet.). A suit seeks to control state
8
action when the trial court’s judgment would “effectively direct or control a
government official in the exercise of his or her statutory authority.”
(Emphasis added). Dir. of Dep’t of Agric. & Envtl. v. Printing Indus. Ass’n of
Tex., 600 S.W.2d 264 (Tex. 1980). In this case, Appellants sought an order of the
trial court enjoining Appellees Walker and the SOAH Appellees from taking any
further action in the administrative process. CR 117-148. When a suit alleges
“acts within the officer’s legal authority and discretion, the claim seeks to control
state action, and is barred by sovereign immunity.” Creedmoor-Maha Water
Supply Corp. v. Tex. Comm’n on Envtl. Quality, 307 S.W.3d 505, 515-516 (Tex.
App.—Austin 2010, no pet.). This suit is clearly attempting to control state action
in as much as Audi was seeking an order from the trial court directing Walker and
SOAH how to proceed in an administrative process that is solely within their
statutory purview and is, therefore, barred by sovereign immunity.
B. Remand of the matter to SOAH for consideration of additional evidence
was not an ultra vires act.
While no statute specifically authorizes the Board to issue a remand order
such as the one in question, the broad powers granted to the Board by Tex. Occ.
Code § 2301.151 and § 2301.709 allow the Board to take any action it deems
advisable to aid in the resolution of the dispute. Consideration of the April 30,
2013 letter at issue certainly concerned a matter over which the Board had
9
jurisdiction since the case involved the dispute over the proposed transfer of
ownership of the two dealerships. See Appendix Tab 8. Perhaps, as alleged by
Appellants, the consideration of the April 30th letter violated the Tex. Occ. Code §
2301.709(b) requirement that only evidence presented in a “timely manner” should
be reviewed by the Board but the consideration of such evidence was certainly not
ultra vires. If a mistake was made by including such letter in the evidence
reviewed by SOAH then that mistake can by rectified in Appellants’ suit for
judicial review as provided in Tex. Occ. Code § 2301.751.
Further, the powers granted to the Board by Tex. Occ. Code § 2301.151 and
§ 2301.709 are specific to the TxDMV and its Board while provisions in the APA,
including Tex. Govt’ Code § 2001.058, are more general in nature in that they
apply broadly to all administrative agency actions at SOAH. Moreover, in the
event of a conflict with the Government Code, Chapter 2301 of the Occupations
Code will prevail. Tex. Occ. Code §2301.702. See Appendix Tab 6. Chapter 2301
allows the Board to take virtually any action necessary to issue a final order and
that power cannot be subverted or limited by provisions of the APA as argued by
Appellants.
10
C. The remand order complies with the motion to remand the case as
passed by the Board.
Appellants argue that Appellee Walker failed to sign an order that
accurately reflected the Board’s motion and that the motion did not include
consideration the letter in question. However, Appellants ignore the portion of the
motion that directs remand “for the reasons outlined by Mr. Duncan” and “for all
the reasons set forth” by Mr. Duncan (as well as a determination concerning
certain conditions suggested in the PFD). CR 158-159. As General Counsel for
TxDMV and the Board, it is undisputed that, prior to the motion being passed,
David Duncan had recommended the matter be remanded to SOAH for
consideration of the April 30, 2013 letter “to remand to SOAH to consider the
document we received in the period between the Board’s last action and today”.
CR 158-159. See Appendix Tab 9. Appellants blatantly ignore that portion of the
motion that encompassed consideration of the letter (“for the reasons outlined by
Mr. Duncan”) in question to claim that the remand order did not comport with the
corresponding motion passed by the Board. Simply put, the motion to remand the
case to SOAH that was passed by the Board included a number of items to be
considered, including the April 30, 2013 letter. The remand order signed by
Walker comports with the motion. See Appendix Tab 7. However, once again, in
the event that the remand order somehow does not agree with the motion as argued
11
by Appellants then such alleged defect may be rectified in Appellants’ suit for
judicial review as was contemplated by the Legislature.
CONCLUSION AND PRAYER
For the foregoing reasons, Appellee Walker respectfully requests that this
Court affirm the Trial Court’s Order Granting of Walkers’ Plea to the Jurisdiction
and for such other and further relief to which Appellee may be entitled.
Dated: August 14, 2015
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation
DAVID A. TALBOT, JR.
Division Chief, Administrative Law Division
12
/s/ Dennis M. McKinney
Dennis M. McKinney
Assistant Attorney General
State Bar No. 13719300
OFFICE OF THE TEXAS ATTORNEY GENERAL
ADMINISTRATIVE LAW DIVISION
P. O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 475-4020
Facsimile: (512) 320-0167
dennis.mckinney@texasattorneygeneral.gov
Attorneys for Appellee Walker
CERTIFICATE OF COMPLIANCE
I hereby certify compliance with Texas Rules of Appellate Procedure 9 and
that there are 4,490 words in this document. Microsoft Word was used to prepare
this filing and calculate the number of words in it.
/s/ Dennis M. McKinney
Dennis M. McKinney
Assistant Attorney General
13
CERTIFICATE OF SERVICE
I hereby certify that, in compliance with Rule 9.5 of the Texas Rules of
Appellate Procedure, a true and correct copy of the above and foregoing document
has been served on the following on this the 14th day of August, 2015:
Billy M. Donley
Mark E. Smith
811 Main Street, Suite 1100
Houston, Texas 77002-6111
bdonley@bakerlaw.com
mesmith@bakerlaw.com
S. Shawn Stephens
James P. Sullivan
King and Spalding
1100 Louisiana Suite 4000
Houston, Texas 77002
Fax 713-751-3290
Attorney for Appellants Volkswagon Group of America, Inc., and Audi of
America, Inc.
Kimberly Fuchs
Assistant Attorney General
Texas Attorney General’s Office
P.O. Box 12548
Austin, Texas 78711
kimberley.fuchs@texasattorneygeneral.gov
Attorney for Appellees the Honorable Michael J. O’Malley and the Honorable
Penny A. Wilkov, in their Official Capacities as Administrative Law Judges for
the State Office of Administrative Hearings
J. Bruce Bennett
Cardwell, Hart & Bennett
807 Brazos Suite 1001
Austin, Texas 78701
jjb.chblaw@abcglobal.net
Fax 512-322-0808
14
William R. Crocker
807 Brazos Suite 1014
Austin, Texas 78701
crockerlaw@earthlink.net
Fax 512-474-2540
Attorneys for Appellees
Ricardo M. Weitz, et al
/s/ Dennis M. McKinney
Dennis M. McKinney
Assistant Attorney General
15
NO. 03-15-00285-CV
____________________________________________________
IN THE THIRD COURT OF APPEALS
AT AUSTIN, TEXAS
____________________________________________________
VOLKSWAGEN GROUP OF AMERICA, INC., and AUDI OF AMERICA,
INC.,
Appellants,
v.
JOHN WALKER III, in his Official Capacity as Chairman of the Texas
Department of Motor Vehicles Board, and the HONORABLE MICHAEL J.
O’MALLEY, and the HONORABLE PENNY A. WILKOV, in their Official
Capacities as Administrative Judges for the State Office of Administrative
Hearings,
Appellees.
____________________________________________________
On Appeal from the 353rd District Court, Travis County, Texas
___________________________________________________
APPENDIX TO JOHN WALKER, III’S APPELLEE BRIEF
____________________________________________________
1. Texas Occupations Code § 2301.151
2. Texas Occupations Code § 2301.153
3. Texas Occupations Code § 2301.359
4. Texas Occupations Code § 2301.360
5. Texas Occupations Code § 2301.709
6. Texas Occupations Code § 2301.702
7. Remand Order (02/13/2015)
8. April 30, 2013 Letter
9. Pages 13 & 14 from the transcript of the February 13, 2015 Texas
Department of Motor Vehicles Board Meeting
16
APPENDIX
TAB 1
S 2301.151. General Jurisdiction of Board, TX OCC S 2301.151
Texas Statutes and Codes Annotated
of MotorVehicles & Annos
Sale or of Motor &
V.T.C.A., Occupations Code 5 z3or.r5r
g z3or.r5r. General Jurisdiction of Board
Effective: June 1, zoo3
Currentness
(a) The board has the exclusive original jurisdiction to regulate those aspects of the distribution, sale, or lease of motor
vehicles that are governed by this chapter, including the original jurisdiction to determine its own jurisdiction.
(b) The board may take any action that is specifically designated or implied under this chapter or that is necessary or
convenient to the exercise of the power and jurisdiction granted under Subsection (a).
Credits
Added by Acts 200l,//thl-eg., ch. 1421, $ 5, eff. June 1,2003. Amended by Acts 2003, 78th Leg., ch. 1276, þ l4A'605(a),
eff. Sept. 1,2003.
V. T. C. 4., Occupations Code $ 2301.151, TX OCC $ 2301.151
Current through effective immediately through Chapter 46 of the 2015 Resular Session of the 84th Legislature
End ofDocumcnt @ 2015 Thomson Reuters. No claim to original U.S. Govemment Works.
@ 2015 Thomson Reuters. No claim to original U.S. Government Works. I
":,-.,t;:,..';Np:çt
APPENDIX
TAB 2
S 2301.153. General Powers of Board, TX OCC S 2301.153
ernon's Texas Statutes Annotated
Motor Vehicles and
A.
V.T.C.A., Occupations Code $ 23o1.153
g zgor.r53. General Powers of Board
Effective: September L, 2ort
Currentness
(a) Notwithstanding any other provision of law, the board has all powers necessary, incidental, or convenient to perform a
power or duty expressly granted under this chapter, including the power to:
(l) initiate and conduct proceedings, investigations, or hearings;
(2) administer oaths;
(3) receive evidence and pleadings;
(4) issue subpoenas to compel the attendance ofany person;
(5) order the production ofany tangible property, including papers, records, or other documents;
(6) make findings of fact on all factual issues arising out of a proceeding initiated under this chapter;
(7) specify and govern appearance, practice, and procedures before the board;
(8) adopt rules and issue conclusions oflaw and decisions, including declaratory decisions or orders;
';'.t;;;.ii:1,"';Next @ 2015 Thomson Reuters. No claim to original U.S. Government Works I
S 2301 .1 53. General Powers of Board, TX OCC S 2301.1 53
(9) enter into contracts;
(10) execute instruments;
(l l) retain counSel;
( 12) use the services of the attorney general and institute and direct the conduct of legal proceedings in any forum;
(13) obtain other professional services as necessary and convenient;
(14) impose a sanction for contempt;
(15) assess and collect fees and costs, including attorney's fees;
(16) issue, suspend, or revoke licenses;
(17) prohibit and regulate acts and practices in connection with the distribution and sale of motor vehicles or \varranty
performance obligations;
(18) issue cease and desist orders in the nature oftemporary or permanent injunctions;
(19) impose a civil penalty;
(20) enter an order requiring a person to:
(A) repurchase property under Section 2301.465 and pay costs and expenses of a parfy in cormection with an order
entered under that section;
llestla-øNexf @ 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
S 2301.153. General Powers of Board, TX OCC S 2301.153
(B) perform an act other than the payment of money; or
(C) refrain from performing an act; and
(21) enforce a board order,
(b) The board may inspect the books and records of a license holder in connection with the performance of its duties under
this chapter.
Credits
Added by Acts 200l,77thleg., ch. 1421, $ 5, eff. June 1,2003. Amended by Acts 2003,78th Leg., ch. 1276, ç 144.606(a),
eff. Sept. 1,2003; Acts 2011, 82nd Leg., ch. 1290 (H.B. 2017), $ 2, eff. Sept. l, 201I'
Editors'Notes
REVISOR'S NOTE
2012 Main Volume
Section 3.03(a), V.A.C.S. Article 4413(36), provides that the board "shall have" and "may" exercise the powers
granted to it under the act. The revised law omits this provision as unnecessary as the grant ofeach individual
power under the article to the board is sufficient authority for the board to exercise that power, and the specific
grant provides whether the power is discretionary or mandatory.
Notes of Decisions (3)
V. T. C.4., Occupations Code $ 2301.153, TX OCC $ 2301.153
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session ofthe 84th Legislature
End ofDocument O 2015 Thomson Reuters. No claim to original U.S. Govemment Works.
';1,b.,\lz.:,t\ext @2015 Thomson Reuters. No claim to original U.S. Government Works 3
APPENDIX
TAB 3
S 2301.359. Transfer of Ownership by Dealer, TX OCC S 2301.359
Vernon's Texas Statutes and Codes Annotated
Occupations Code (Refs & Annos)
V.T.C.A., Occupations Code $ 23o1.9S9
g 23or.359. Transfer of Ownership by Dealer
Effective: September r, 2ott
Currentness
(a) A dealer must notifu the manufacturer or distributor of a vehicle the dealer is franchised to sell of the dealer's decision to
assign, sell, or otherwise transfer a franchise or a controlling interest in the dealership to another person. The notice is the
application by the dealer for approval by the manufacturer or distributor ofthe transfer.
(b) Notice under Subsection (a) must:
(1) be in writing and include the prospective transferee's name, address, hnancial qualifications, and business experience;
and
(2) be sent by certified mail, return receipt requested
(c) The notice must be accompanied by:
(l) a copy ofpertinent agreements regarding the proposed assignment, sale, or transfer;
(2) completed application forms and related information generally used by the manufacturer or distributor in reviewing
prospective dealers, if the forms are on file with the board; and
(3) the prospective transferee's written agreement to comply with the franchise to the extent that the franchise is not in
conflict with this chapter.
'7J;:':.t!:,.,.¡flp'¡t O 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
S 2301.359. Transfer of Ownership by Dealer, TX OCC S 2301.359
(d) Not later than the 60th day after the date of receipt of a notice and application under this section, a manufacturer or
distributor shall determine whether a dealer's prospective transferee is qualihed and shall send a letter by certifìed mail,
return receipt requested, informing the dealer of the approval or the unacceptability of the prospective transferee. If the
prospective transferee is not acceptable, the manufacturer or distributor shall include a statement setting forth the material
reasons for the rejection.
(e) A manufacturer or distributor may not unreasonably withhold approval of an application filed under Subsection (a).
(Ð A" application filed under this section is approved unless rejected by the manufacturer or distributor in the manner
provided by this section.
(g) In determining whether to approve an application filed under Subsection (a), a manufacturer or distributor may consider:
(l) the prospective transferee's financial and operational performance as a franchised dealer, ifthe prospective transferee is
or has been a franchised dealer;
(2) the prospective transferee's moral character; or
(3) the extent to which a prospective transferee satisfies any criteria developed by the manufacturer or distributor and made
available to the prospective transferee, specifically to determine the business experience and financial qualifications of a
prospective transferee.
(h) A manufacturer or distributor may consider the criteria developed under Subsection (g)(3) only if the criteria are in
writing, are reasonable, and are uniformly applied in similar situations.
(i) It is unreasonable for a manufacturer or distributor to reject a prospective transferee who is of good moral character and
who satistes the criteria developed under Subsection (g)(3).
Credits
Added by Acts 2001,77rh Leg., ch. 1421, $ 5, eff. June 1,2003. Amended by Acts 20ll,82nd Leg., ch. 137 (S.8. 529),, 2,
eff. Sept.1,2011.
Notes of Decisions (6)
1,11e'rtia,.vNext' O 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
S 2301.359. Transfer of Ownership by Dealer, TX OCC S 2301.359
V. T. C. 4., Occupations Code $ 2301.359, TX OCC $ 2301.359
Current th¡oush Chapters effective immediately through Chapter 46 of the 2015 Reeular Session of the 84th Leqislature
End ofDocument @ 2015 Thomson Reuters. No claim to original U.S. Govemment tüorks.
V/ectt*wNexf @2015 Thomson Reuters. No claim to original U.S. Government Works 3
APPENDIX
TAB 4
S 2301.360. Review by Board Following Denial of Transfer, TX.OCC S 2301.360
Vernon's Texas Statutes and Codes Annotated
Code &
of Motor Vehicles and &
Srr A.
or Lease MotorV &
V.T.C.A., Occupations Code 5 23o1.360
$ z3or.36o. Review by Board Following Denial of Transfer
Effective: September \ 2oog
Cnrrentness
(a) A dealer whose application is rejected under Section 2301.359 may file a protest with the board. A protest filed under this
section is a contested case.
(b) In a protest under this section, the board must determine whether the rejection was reasonable under the criteria described
by Section 2301.359. The burden is on the manufacturer or distributor to prove that the prospective transferee is not qualified
under the criteria. The board shall enter an order holding that the prospective transferee either is qualifred or is not qualified.
(c) Ifthe board's order is that the prospective transferee is qualified, the dealer's franchise is amended to reflect the change in
franchisee, and the manufacturer or distributor shall accept the transfer for all purposes.
(d) If the board's order is that the prospective transferee is not qualihed, the board may include in the order:
(l) specific reasons why the prospective transferee is not qualified; and
(2) specific conditions under which the prospective transferee would be qualihed.
(e) Ifthe board's order that a prospective transferee is not qualified includes specific conditions under which the prospective
transferee would be qualified, the board may retain jurisdiction of the dispute for a time certain to allow the dealer and
prospective transferee to meet the conditions.
Credits
,t;.,::.:.i;...',1\Jp't',1. @2015 Thomson Reuters. No claim to original U.S. Government Works
S 2301.360. Review by Board Following Denial of Transfer, TX OCC S 2301.360
Added by Acts 2001,77th Leg., ch. 1421, {i 5, eff. June 1,2003. Amended by Acts 2009, Slst Leg., ch. 684, þ 2, eff. Sept. 1,
2009.
Notes of Decisions (2)
V. T. C. 4., Occupations Code $ 2301.360, TX OCC $ 2301.360
Current through Chapters effective immediately through Chapter 46 of the 2015 Resular Session of the 84th Lesislature
End ofDocument @ 2015 Thomson Reuters. No claim to original U.S. Govemment Works.
'fle=tlawNexl @ 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
APPENDIX
TAB 5
S 2301.709. Review by Board, TX OCC S 2301.709
Vernon's Texas Statutes and Codes Annotated
Code Annos
Sale or of Motor
V.T.C.A., Occupations Code $ 2got.7og
$ z3or.7o9. Review by Board
Effective: September 7, 2org
Currentness
(a) In reviewing a case under this subchapter, the board or a person delegated power from the board under Section 2301.154
may consider only materials that are submitted timely.
(b) The board or a person delegated power from the board under Section230l.l54 may hear such oral argument from any
party as the board may allow.
(c) The board or a person delegated power from the board under Section 2301.154 shall take any further action conducive to
the issuance of a final order and shall issue a written hnal decision or order. A majority vote of a quorum of the board is
required to adopt a final decision or order ofthe board.
Credits
Added by Acts 2001,77th Leg., ch. 1421, {i 5, eff. June 1,2003. Amended by Acts 2007, 80th Leg., ch. 1403, $ 3, eff. Sept.
1,2007; Acts 20l3,83rdLeg., ch. 1135 (H.8.2741), $ 26, eff. Sept. 1,2013.
Notes of Decisions (7)
V. T. C.4., Occupations Code $ 2301.709, TX OCC $ 2301.709
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature
End of Document O 2015 Thornson Reutels. No clair¡ to orìginal U.S. Gover¡ment Works
',"j;,:'..'¡l:¿.lþ i,p:\l @2015 Thomson Reuters. No claim to original U.S. Government Works
APPENDIX
TAB 6
S 2301.702. Conflict With Other Law, TX OCC S 2301.702
Vernon's Texas Statutes and Codes
of Motor
r. Sale or Lease Motor Vehicles
Su o
V.T.C.A., Occupations Code $ 2got7o2
5 zgot.7oz. Conflict With Other Law
Effective: June t, zoo3
Cunentness
To the extent of a conflict between this chapter and Chapter 2001, Government Code, this chapter controls.
Credits
Added by Acts 2001,'77th Leg., ch. 1421, $ 5, eff. June 1,2003
V. T. C. 4., Occupations Code ç 2301.'702, TX OCC ç 2301"702
Current through Chapters effective immediately through Chapter 46 of the 2015 Resular Session of the 84th Lesislature
End ofDocument @ 2015 Thornson ReuteIs. No clairn to oliginal U S. Govet¡¡nent Wot*s.
. ;-.,:.':i ' .l'.Je:rt @ 20'1 5 Thomson Reuters. No claim to original U.S. Government Works I
APPtrNDIX
TAB 7
BOARD O['TIM TEXAS DEPARTMENT OF MOTOR YEHICLFS
Budget Leasing,Inc, tl/b/a Audi s
North Austin and Audi South Austin, $
Protestants, sn¿ Ricardo M. Weitzr IIi Tech $
Imports North, LLC, Hi Tech Imports $
South, LLC,Hi Tech Imports LLC' $
Intervenors $
$ MVD DOCKET NO. 13-0008.LIC
v. $ SOAII DOCKET NO. 60E.13.4599.LIC
s
Volkswagen Group of Americar lnc. and $
Porscbe Cars North Americar lnc,, $
Respondents $
INTERIM ORDER REMA}IÐING THE CASE TO THE STATts OFF'ICE OF'
ADMINISTRATTVE IIEARINGS FOR F'IJRTIMR PROCEEDINGS
On December 10, 2014, üte Board of the Texas Department of Motor Vehicles granted
rehearing in this matte(. The Board furds that substantial controversies continue tb exist and that
these controversies require further adjudication at the State Office of Administrative Hearings
through the contested case Process.
The Board remands this matter to the State Office of Administrative Hearings (SOAH)
for supplemental proceedings, limited to the following:
Did Audi receive the letterl dated April 30, 2013, from Ricardo M. Weitz to Sally
Grirnes, and should this letter be added to the record? If so, what effect, if any, does the letter
have on the issue of compliance with Tex. Occ. Code, $2301.359 in light of the agency's prior
decision in Gordon Rountree Motors, Ltd, v, Mazda Motors of Ameríca, MVD Docket No. 07-
0038 LIC2?
\ilhile adjudicating this case on remand, SOAH is also directed to review the qualifying
conditions set forth in Findings of Fact Nos. 154-158
Prospective Transferees Qualified3, and Volkswagen Group
lnc.'s Response to Intervenors' Motion to Find the Prospe
conclusion of this review, SOAH is directed to provide a specific finding that prospective
transferees either are qualified or are not qualified.
I Exhlbit
A copy of which is aBached hereto as L
z
A copy of which ¡s attachcd hcrcto Exhlblt 2.
as
" A copy of which is ¿ltachc¡l bercto as Exhib¡t 3'
a
A copy of which is attached hereto as Exhibit 4-
EXH.2 ß34
Accordingly, the Board requests SOAH conduct supplemental proceedings limited to the
taking of evidence and providing the Board with supplemental findings on the foregoing issues.
Regarding these supplemental proceedings, the Board holds that SOAH's opinion on retention of
jurisdiction is not properly a finding of fact or a conclusion of law. Under Occupations Code,
$2301.360(e), the decision to retain jurisdiction after the issuance of the Board's order is at the
sole discretion of the Board.
Given the complicated and lengthy nafire of the proceedings already conducted by
SOAH in this matte¡ the Board requests that the same administrative law judges who conducted
the initial proceedings be assigned to this mattq on remand.
The Board strongly urges SOAH to address this matter as expeditiously as possible. To
that end, the Board recognizes that accommodations regarding other Board cases may need to be
made and the Board authorizes SOAH to do whatever is necessary to fulfill the Board's request
to accelerate the adjudication of this natter,
Date: February 13,2Ql5
V/ IIL Chairman,
Department of Motor Vehicles
Daniel Avitia,
Motor Vehicle Division
Texas Department of lvlotor Vehicles
EXH. 2 ß3s
APPENDIX
TAB 8
Ðleþplueg
Aptil3o, zot3
Aucli North Arnerica, Inc.
$outlre.rrr Region
Attn: Ms. SallyGrirues Via lecleral Express
2S?o Norfhwiuds Pnrkwny, .9tritu. 5 oo
Alpharetta, eA Ao-oaÈ
Re:
Þear Salty,
'þlle/'),
87e9,'urd
'agregnreilt
Enclosecf please flrrd Buyet's Étpplic¿rtious f.çr eaeli dealeruhlp-
Ricardo M.
Exhibit D
1792
APPENDIX
TAB 9
TEXAS DEPARTMENT OF MOTOR VEHICLES
BOARD MEETING
Friday,
February 13, 20L5
Star Room
Lone
Building 1
4000 Jackson Avenue
Austin, Texas
BOARD MEMBERS
,JohnnyWalker, Chair
Laura Ryan, Vice-Chair
Robert "Barney" Barnwell-r III
Luanne Caraway
Blake Ingram
Raymond Pal-acios
Victor Rodriguez
Marvin Rush
,Joseph Sl-ovacek
ON THE RECORD REPORTTNG
(512) 4s0-0342
Exhibit K to Original Petition ß4
13
1 were proper as this matter \nlas and still is a contested
2 case, subject to the board's authority and the board's
3 September L2 ord.er I¡¡as never final and appealable.
4 Since the September meeting, the staff was made
5 of and receíved a copy of a document that may
a\^rare
6 satisfy the statutory requirement that \^Ias discussed in
1 the September board meeting. Because that item is clearly
ö missing from the record, it's the staff's position
SOAH
9 that the most appropriate outcome is to remand the matter
10 to SOAH so that the document can be considered by the SOAH
11 judges. The further adjudication referred to in the
I2 board's December 10 order requires a remand to SOAH
13 because TxDMV hearing functions, incJ-uding the collection
1,4 of evidence and the findings and conclusions of law, are
15 generaì-ly deleqated to SOAH administrative Iaw judges in
I6 accordance with Texas Occupations Code, Section
I1 230I.704 (a) .
1B AII the parties to this case were provided with
I9 copies of the staff's ïecommendation and the accompanying
ZU documents in advance of today's meeting, and the staff has
2I prepared a draft order in line with that for your
22 consideration.
23 I've got with me Mr. Daniel- Avitia, the
24 director of the Motor Vehicle Division, in case there are
25 any technical questlons regarding the Motor Vehicle
ON THE RECORD REPORTING
(512) 450-0342
Exhibit K to Original Petition ls8
74
1 Division position on this, and we're available to answer
2 any questions.
3 MR. SLOVACEK: Vlhat is the staf f 's
4 recommendation?
5 MR. DUNCAN: To remand to SOAH to consider the
6 document that we received in the period between the
1 board's last action and todaY.
8 MR. SLOVACEK: Mr. Chairman, f make a motion
9 that we remand to SOAH, for the reasons outÌined by Mr.
10 Duncan, this entire case, for all the reasons set forth,
11 to determine whether the interveners have, in fact'
I2 satisfied the conditions of the proposaÌ for decision.
13 MR. PALACIOS: I second the motion.
T4 MR. WALKER: We have a motion by Member
15 Sl-ovacek and we have as second by Raymond Palacios. Do we
L6 have any comments or any questions by any of the board
I1 members ?
1B (No response. )
I9 MR. WALKER: ff so, I'd like to call a vote.
20 AII in favor of the motion?
2I MR. SLOVACEK: Point of order. You said you
22 were going to allow the people to taÌk about it.
23 MR WALKBR: I'm sorry. You're rightr lourre
24 right.
25 MR SLOVACEK: Not that I think you ought to
ON THE RECORD REPORTING
(512) 450-0342
Exhibit K to Original Petition ßs