                                                                                                ACCEPTED
                                                                                            03-15-00285-CV
                                                                                                    6498582
                                                                                 THIRD COURT OF APPEALS
                                                                                            AUSTIN, TEXAS
                                                                                      8/14/2015 10:40:14 AM
                                                                                          JEFFREY D. KYLE
                                                                                                     CLERK
                        CAUSE NO. 03-15-00285-CV

                                                                      FILED IN
                       IN THE COURT OF APPEALS     3rd COURT OF APPEALS
                                                        AUSTIN, TEXAS
                   FOR THE THIRD DISTRICT OF TEXAS
                                                   8/14/2015 10:40:14 AM
                            AUSTIN, TEXAS
                                                                    JEFFREY D. KYLE
                                                                         Clerk

   Volkswagen Group of America, Inc. and Audi of America, Inc. of Texas
                             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 Law
           Judges for the State Office of Administrative Hearings
                                    Appellees.

    On Appeal from the 201st Judicial District Court, Travis County, Texas
            Honorable Amy Clark Meachum, Presiding Judge

           BRIEF OF APPELLEES O’MALLEY AND WILKOV


KEN PAXTON                                   KIMBERLY L. FUCHS
Attorney General of Texas                    State Bar No. 24044140
                                             Administrative Law Division
CHARLES E. ROY                               Office of the Attorney General of Texas
First Assistant Attorney General             P.O. Box 12548, Capitol Station
                                             Austin, Texas 78711-2548
SHELLEY DAHLBERG                             Telephone: (512) 475-4195
Associate Deputy Attorney General for        Facsimile: (512) 320-0167
Civil Litigation
                                             ATTORNEYS FOR APPELLEES
DAVID A. TALBOT, JR.                         THE HONORABLE MICHAEL J. O’MALLEY
Chief, Administrative Law Division           AND THE HONORABLE PENNY A. WILKOV

August 14, 2015
                       REFERENCE TO THE PARTIES

      Appellants, Volkswagen Group of America, Inc. and Audi Group of America,

Inc., will be referred to as “Audi.” Appellee John Walker III will be referred to as

“Walker.” Appellee Budget Leasing and Appellees Ricardo M. Weitz, Hi Tech

Imports North, LLC, Hi Tech Imports South, LLC, and Hi Tech Imports, LLC, will

be referred to collectively as “Intervenors.” Appellees Michael J. O’Malley and

Penny A. Wilkov will be referred to as “SOAH ALJs.”



                         REFERENCES TO THE RECORD

      Clerk’s record will be referenced as:        C.R. [Page]

      Appendix will be referenced as:              App. [Letter]




                                         ii
                                          TABLE OF CONTENTS

Reference to the Parties............................................................................................. ii

References to the Record .......................................................................................... ii

Table of Contents ..................................................................................................... iii
Table of Authorities ...................................................................................................v

Statement of the Case.............................................................................................. vii

Statement Regarding Oral Argument ..................................................................... vii
Statement Regarding Oral Argument ..................................................................... vii
Issues Presented ..................................................................................................... viii

1.       Response to Audi’s issue 1: The trial court did not err in finding Audi had
         failed to state a proper ultra vires claim capable of overcoming Defendants’
         entitlement to immunity and granting Defendants O’Malley and Wilkov’s
         plea to the jurisdiction ................................................................................. viii
2.       Response to Audi’s issue 2: The trial court did not err in dismissing Audi’s
         case because no proper ultra vires claim was asserted, and Audi has the
         opportunity to challenge the remand through a suit brought under the APA
         after exhaustion of administrative remedies ................................................ viii
Statement of Facts ......................................................................................................1

Summary of the Argument.........................................................................................2
Argument....................................................................................................................3

I.       The trial court did not err in finding Audi had failed to state a proper ultra
         vires claim capable of overcoming Defendants’ entitlement to immunity and
         granting Defendants O’Malley and Wilkov’s plea to the jurisdiction ............ 3

         A.        Audi has not stated a proper ultra vires claim ...................................... 3
                   1.       None of the cases cited by Audi involve cases on remand .........4
                   2.       SOAH’s interpretation of Rule 155.153 must be given
                            deference .....................................................................................5

                                                            iii
         B.       Audi cannot overcome the SOAH ALJs entitlement to sovereign
                  immunity ............................................................................................... 5

         C.       The trial court was correct in deciding the plea to the jurisdiction
                  without looking at additional evidence ................................................. 7

II.      The trial court did not err in dismissing Audi’s case because no proper ultra
         vires claim was asserted, and Audi has the opportunity to challenge the
         remand through a suit brought under the APA after exhaustion of
         administrative remedies ................................................................................... 9

         A.       Immunity and the exhaustion requirement are not waived if no proper
                  ultra vires claim is pled ......................................................................... 9

         B.       Even if a proper ultra vires claim is pled, sovereign immunity is only
                  waived for claims for prospective injunctive relief .............................. 9

         C.       Audi’s claims are properly brought in a suit for judicial review after
                  exhaustion of administrative remedies ................................................ 11
Conclusion and Prayer .............................................................................................11

Certificate of Compliance ......................................................................................133

Certificate of Service ...............................................................................................13




                                                           iv
                                    TABLE OF AUTHORITIES

CASES
Andrade v. NAACP of Austin,
345 S.W.3d 1 (Tex. 2011) ..........................................................................................8
City of El Paso v. Heinrich,
284 S.W.3d 366 (Tex. 2009) ........................................................................... 3, 9, 10
Coastal Habitat Alliance v. Pub. Util. Comm’n of Tex.,
294 S.W.3d 276 (Tex. App.—Austin 2009, no pet.) .................................................6

Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on Envtl. Quality,
307 S.W.3d 505 (Tex. App.—Austin 2010, no pet.) .................................................8
Hendee v. Dewhurst,
228 S.W.3d 354 (Tex. App.—Austin 2007, pet. denied) ..........................................7
KEM Tex., Ltd. v. Tex. Dep’t of Transp.,
No. 03-08-00468-CV, 2009 WL 1811102
(Tex. App.—Austin Jun. 26, 2009, no pet.)...............................................................6
Klumb v. Houston Mun. Emps. Pension Sys.,
405 S.W.3d 204 (Tex. App.—Houston [1st Dist.] 2013) ..........................................8
N. Alamo Water Supply Corp. v. Tex. Dep’t of Health,
839 S.W.2d 455 (Tex. App.—Austin 1992, writ denied)
aff’d 458 S.W.3d 1 (Tex. 2015) .................................................................................6
State v. Sledge,
36 S.W.3d 152 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) ........................6
Sw. Pharmacy Solutions, Inc. v. Tex. Health and Human Servs. Comm'n,
408 S.W.3d 549 (Tex. App.–Austin 2013, pet. denied) ............................................5
Westheimer Indep. Sch. Dist. v. Brockette,
567 S.W.2d 780 (Tex. 1978) ......................................................................................5




                                                         v
STATUTES
Tex. Gov't Code

Tex. Gov’t Code § 2001.171....................................................................................10
Tex. Gov’t Code § 2001.174(2)(A) .........................................................................11

STATE OFFICE OF ADMINISTRATIVE HEARINGS ORDERS1
In the Matter of Ricardo M. Weitz, et al. v. Volkswagen Group of America, Inc.,
et al., SOAH Docket No. 0608-13-4599.LIC, Remand Order No. 15 (Jun. 16,
2015) ........................................................................................................................10

RULES
1 Tex. Admin. Code § 155.153 (2008) .....................................................................9
Tex. R. Civ. P. 329b ...................................................................................................5




1
  Proposal for decisions and orders of the State Office of Administrative Hearings are available on
the internet at: http://www.soah.state.tx.us/PFDSearch/Search.asp and Westlaw©.

                                                              vi
                         STATEMENT OF THE CASE


   Nature of the case:         Audi filed suit against ALJs Michael J. O’Malley
                               and Penny A. Wilkov and Department of Motor
                               Vehicles (DMV) Chairman John Walker III. In
                               its lawsuit, Audi alleged Defendants committed
                               ultra vires acts by remanding a case to the State
                               Office of Administrative Hearings (SOAH).
                               Budget Leasing and Appellees Ricardo M. Weitz,
                               Hi Tech Imports North, LLC, Hi Tech Imports
                               South, LLC, and Hi Tech Imports, LLC
                               intervened in the case. After the trial court denied
                               Audi’s request for a temporary restraining order,
                               Defendants filed pleas to the jurisdiction,
                               asserting that Audi had failed to state proper ultra
                               vires claims against any of the Defendants and had
                               failed to overcome Defendants’ entitlement to
                               immunity.

   Trial court:                201st Judicial District Court, Travis County,
                               Texas; The Honorable Judge Amy Clark
                               Meachum, presiding.

   Trial court disposition:    The trial court granted Defendants O’Malley and
                               Wilkov’s Plea to the Jurisdiction and Defendant
                               Walker’s Plea to the Jurisdiction, dismissing the
                               case.



             STATEMENT REGARDING ORAL ARGUMENT

      Defendants O’Malley and Wilkov take the position that oral argument is not

necessary in this case, but requests the right to make an argument should oral

argument be granted.



                                      vii
                              ISSUES PRESENTED

1.   Response to Audi’s issue 1: The trial court did not err in finding Audi had failed
     to state a proper ultra vires claim capable of overcoming Defendants’
     entitlement to immunity and granting Defendants O’Malley and Wilkov’s plea
     to the jurisdiction.

2.   Response to Audi’s issue 2: The trial court did not err in dismissing Audi’s case
     because no proper ultra vires claim was asserted, and Audi has the opportunity
     to challenge the remand through a suit brought under the APA after exhaustion
     of administrative remedies.




                                         viii
                         CAUSE NO. 03-15-00285-CV

                        IN THE COURT OF APPEALS
                    FOR THE THIRD DISTRICT OF TEXAS
                             AUSTIN, TEXAS


   Volkswagen Group of America, Inc. and Audi of America, Inc. of Texas
                             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 Law
           Judges for the State Office of Administrative Hearings
                                    Appellees.

     On Appeal from the 201st Judicial District Court, Travis County, Texas
             Honorable Amy Clark Meachum, Presiding Judge

           BRIEF OF APPELLEES O’MALLEY AND WILKOV


TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

                           STATEMENT OF FACTS

      This case stems from a contested case proceeding involving Audi and the

intervenors. The contested case was referred to the State Office of Administrative

Hearings (SOAH) by the Department of Motor Vehicles (DMV). C.R. 117-148. The

underlying dispute involves the sale of two auto dealerships. C.R. 367-369. After a

hearing, SOAH issued a proposal for decision (PFD), agreeing with Audi that the
intervenors were not currently qualified buyers, but setting out the conditions that

the buyers would need to meet to become qualified. C.R. 399-502.

      The DMV did not enter a final decision based on the PFD, but rather dismissed

the case for failure to comply with procedural requirements. C.R. 503-505. On

motion for rehearing, the DMV set aside its dismissal and remanded the case to

SOAH for a finding on whether the procedural requirements were, in fact, met. C.R.

168-169.

      The only issue in this case is based on Audi’s claim that Chairman Walker

committed an ultra vires act by remanding a case to SOAH and that the SOAH ALJs

committed an ultra vires act by accepting a remand from the DMV and conducting

procedures in accordance with it.

                      SUMMARY OF THE ARGUMENT

      Audi alleges the ALJs violated SOAH procedural Rule 155.153 by accepting

a case remanded to them by the DMV. The rule at issue states that an Administrative

Law Judge may reopen evidence in a case if the PFD has not issued. ALJs regularly

accept cases remanded to them, and that rule has never been interpreted by SOAH

or a court to prevent ALJs from reopening the record on remand. The ALJs have

not committed ultra vires acts, and Audi’s claim fails on its face. Audi is also

requesting retroactive relief, and such relief is barred by qualified immunity.

Because no proper ultra vires claim was stated, Audi is required to exhaust its


                                         2
administrative remedies before complaining about the SOAH ALJs’ orders in district

court. The trial court rightly granted the Plea to the Jurisdiction.

                                    ARGUMENT

I.    The trial court did not err in finding Audi had failed to state a proper
      ultra vires claim capable of overcoming Defendants’ entitlement to
      immunity and granting Defendants O’Malley and Wilkov’s plea to the
      jurisdiction.

      A.     Audi has not stated a proper ultra vires claim.

      Audi has not stated a valid cause of action against SOAH. Although Audi

mischaracterizes its complaint against the SOAH ALJs as an ultra vires claim, its

own pleadings fail to identify any actions that the SOAH ALJs have taken that could

be properly characterized as ultra vires. An ultra vires act occurs when an official

acts without constitutional or statutory authority, or in violation of the constitution

or a statute. City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Audi’s

claim against the SOAH ALJs is simply an allegation that they violated a procedural

rule, SOAH Rule 155.153, by accepting a case remanded to SOAH by the DMV.

      SOAH has always interpreted Rule 155.153 to mean it cannot take new

evidence concerning a Proposal for Decision that has already been issued. However,

SOAH has also always interpreted Rule 155.153 to allow the taking of additional

evidence in a remand proceeding in which a new supplemental or amended proposal

for decision will be issued. This interpretation can only be an ultra vires act if Audi



                                           3
can show that SOAH’s interpretation of its own rule is inconsistent with its statutory

authority. Audi has made no attempt to do so.

      Audi asserts that Rule 155.153 provides an “express prohibition” on

reopening the record if a PFD is issued. Brief at 46. In fact, Rule 155.153(d) does

not prohibit anything. It simply gives SOAH ALJs the ability to reopen the record

if new issues arise after the record has been closed, but before the ALJ has issued a

proposal for decision. The rule does not address remands, and there is nothing in

the text of the rule suggesting that SOAH does not have the authority to accept

remands. In fact, the statutes cited by Audi show that SOAH does regularly accept

remands. Brief at 22-23. Further, Texas Government Code section 2001.175(c)

specifically authorizes a district court to order SOAH to consider evidence not

already in the record. If Rule 155.153 was meant to prohibit remands except where

explicitly authorized, it could have easily done so. But nothing in the Rule indicates

it applies to remands at all.

             1.     None of the cases cited by Audi involve cases on remand.

      Audi argues that SOAH has consistently ruled that it cannot reopen cases once

a Proposal for Decision has issued. However, none of the cases they cite are

applicable, as none of them were on remand. A remand reopens a case, and will

result in a new Proposal for Decision.




                                          4
      The process at SOAH is akin to the process in the court system. If a district

court receives a request to reconsider an issue or admit new evidence outside of its

plenary power, it cannot do so. Tex. R. Civ. P. 329b. However, if a case is remanded

by an appellate court to develop the factual record, the trial court again has the ability

to admit evidence and make rulings in a case.

             2.     SOAH’s interpretation of Rule 155.153 must be given
                    deference.

      An agency is given deference to its interpretation of its own rules. Sw.

Pharmacy Solutions, Inc. v. Tex. Health and Human Servs. Comm'n, 408 S.W.3d

549, 561 (Tex. App.–Austin 2013, pet. denied) (citing R.R. Comm'n v. Tex. Citizens

for a Safe Future & Clean Water, 336 S.W.3d 619, 629 (Tex. 2011)). It is certainly

reasonable for SOAH to interpret its rule in a way that allows it to consider additional

evidence in a remand proceeding when asked by an agency or a court. “Courts

generally hold that administrative bodies are entitled to and should exercise the

duties and functions conferred by statute without interference from the courts.”

Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 785 (Tex. 1978).

      B.     Audi cannot overcome the SOAH ALJs entitlement to sovereign
             immunity.

      As explained above, Audi failed to plead a proper cause of action. However,

even if it had, it would also be required to demonstrate that the cause of action waives

the state’s immunity. “A party who sues the State must have an independent waiver


                                            5
of immunity from suit for each claim in the suit.” State v. Sledge, 36 S.W.3d 152,

156 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).

      Texas courts have held that it is not ultra vires for an agency to incorrectly

interpret the law; thus, a claim based on this allegation will fail to waive sovereign

immunity or confer jurisdiction upon the court and may also be held as redundant to

a suit for judicial review. See Coastal Habitat Alliance v. Pub. Util. Comm’n of Tex.,

294 S.W.3d 276, 285 (Tex. App.—Austin 2009, no pet.); N. Alamo Water Supply

Corp. v. Tex. Dep’t of Health, 839 S.W.2d 455, 458-59 (Tex. App.—Austin 1992,

writ denied) (“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.”); KEM Tex., Ltd. v. Tex. Dep’t of Transp., No. 03-08-00468-CV, 2009

WL 1811102 (Tex. App.—Austin Jun. 26, 2009, no pet.)(mem. op.).

      Although Audi recognizes SOAH does have the authority to accept remands

in certain cases, it argues SOAH should have “honored” section 2001.058(e) of the

APA by telling the Board that it only has the authority to change a finding, not issue

a remand. Brief at 41-42. Audi has not explained how failing to handle the situation

this way is an ultra vires act. Even if Audi’s interpretation of the APA was correct,




                                          6
the SOAH ALJ’s decision to accept the remand from the DMV could be, at most, an

incorrect decision, not an ultra vires act. 2

       As explained above, misinterpreting the law is not an ultra vires act, and

sovereign immunity is not waived.                Not only has Audi failed to show its

interpretation of the APA is correct, but it has failed to state an ultra vires claim

capable of overcoming immunity against the SOAH ALJs even if Audi’s position

were taken as true. At best, Audi has claimed the SOAH ALJs have misinterpreted

the law in terms of the remand. This assertion is inadequate to state an ultra vires

claim, and Audi has failed to waive the SOAH ALJs entitlement to sovereign

immunity.

       C.      The trial court was correct in deciding the plea to the jurisdiction
               without looking at additional evidence.

       In Hendee v. Dewhurst, the Third Court of Appeals clearly explained:

       It is also well-established that where a trial court’s jurisdiction depends
       upon whether a state official’s acts are within her constitutional or
       statutory authority, such as when a plaintiff alleges ultra vires action to
       avoid sovereign immunity, the trial court may sometimes be able to
       decide the jurisdictional issue as a matter of law based on the pleadings
       by construing the constitutional and statutory provisions defining the
       actor’s authority and ascertaining whether the acts alleged would
       exceed that authority.


2
   SOAH disagrees with Audi’s interpretation of Government Code section 2001.058(e). That
section merely sets out the criteria for an agency to change a finding of fact or conclusion of law,
or to vacate or modify an order issued by a SOAH ALJ. That section does not otherwise limit the
authority of a state agency, and specifically does not preclude an agency from remanding a
contested case hearing to SOAH for further actions.

                                                 7
Hendee v. Dewhurst, 228 S.W.3d 354, 368 (Tex. App.—Austin 2007, pet. denied).

Plaintiffs must plead facts that demonstrate the Defendants acted in contravention of

constitutional or statutory authority or failed to perform a ministerial act; suits that

seek to control discretionary decisions are barred. See, e.g., Andrade v. NAACP of

Austin, 345 S.W.3d 1, 10-12 (Tex. 2011) (failure to plead viable constitutional claim

bars suit against government entity); Klumb v. Houston Mun. Emps. Pension Sys.,

405 S.W.3d 204, 224 (Tex. App.—Houston [1st Dist.] 2013) aff’d 458 S.W.3d 1

(Tex. 2015) (when “plaintiff’s constitutional claim is facially invalid, the trial court

must grant a . . . plea to the jurisdiction asserting governmental immunity”);

Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on Envtl. Quality, 307

S.W.3d 505, 515-16 (Tex. App.—Austin 2010, no pet.) (“if the plaintiff alleges only

facts demonstrating acts within the officer’s legal authority and discretion, the claim

seeks to control state action, and is barred by sovereign immunity”).

      Here, Audi failed to state an ultra vires claim against the SOAH ALJs or

overcome sovereign immunity as a matter of law, and additional evidence would not

have aided the court in determining whether SOAH can accept a remand from the

DMV, the only issue in the case against SOAH. The sole issue is whether the SOAH

rules expressly prohibit remands and if so, whether the SOAH procedural rules can

form the basis of an ultra vires claim. The issue is purely one of legal interpretation.




                                           8
Audi’s evidence, mainly related to the procedural history of the underlying case, is

irrelevant to the very narrow issue here.

II.   The trial court did not err in dismissing Audi’s case because no proper
      ultra vires claim was asserted, and Audi has the opportunity to challenge
      the remand through a suit brought under the APA after exhaustion of
      administrative remedies.

      A.    Immunity and the exhaustion requirement are not waived if no
            proper ultra vires claim is pled.

      For the reasons stated above, Audi’s ultra vires claim against the SOAH ALJs

is not proper. In addition, the SOAH ALJs are immune to the type of relief requested

by Audi. Audi asks this Court to declare that the SOAH ALJs have committed ultra

vires acts by 1) reopening the record; 2) considering untimely evidence;

3) conducting a remand hearing; and 4) conducting the remand procedure on a

compressed schedule. Brief at 39. A judgment declaring these acts to be ultra vires

would be barred by sovereign immunity.

             B.    Even if a proper ultra vires claim is pled, sovereign immunity
                   is only waived for claims for prospective injunctive relief.

      As the state’s waiver of immunity for ultra vires claims is limited to

prospective injunctive relief, an order declaring this previous act to be ultra vires

would be retrospective relief, and thus barred by sovereign immunity. City of El

Paso v. Heinrich, 284 S.W.3d at 376.

      Rule 155.153 says:

(a) Judge’s authority and duties. The judge shall have the authority and duty to:

                                            9
    (1) conduct a full, fair, and efficient hearing;
    (2) take action to avoid unnecessary delay in the disposition of the proceeding;
    (3) maintain order; and
    (4) reopen the record when justice requires, if the judge has not issued a
    dismissal, proposal for decision, or final decision.

1 TEX. ADMIN. CODE § 155.153 (2008) (State Office of Admin. Hearings, Rules of
Procedure

       The rule only involves SOAH’s ability to reopen the record. The record has

already been reopened and closed again. State Office of Admin. Hearings, In the

Matter of Ricardo M. Weitz, et al. v. Volkswagen Group of America, Inc., et al.,

SOAH Docket No. 0608-13-4599.LIC, Remand Order No. 15 (Jun. 16, 2015)

(remand order closing the record).3 As the state’s waiver of immunity for ultra vires

claims is limited to prospective injunctive relief, an order declaring this previous act

to be ultra vires would be retrospective relief, and thus barred by sovereign

immunity. City of El Paso v. Heinrich, 284 S.W.3d at 376.

       Audi has not stated a proper ultra vires claim, and its claim against the SOAH

ALJs is redundant to a suit for judicial review. To complain about the SOAH ALJs’

rulings, Audi must exhaust its administrative remedies before challenging those

orders in district court.

       Audi has a right to judicial review of the final decision that will be issued in

the pending contested case, pursuant to section 2001.171 of the Administrative


3
  The second PFD was issued on August 13, 2015. The parties will now have the opportunity to
file exceptions to the PFD in the SOAH case.

                                             10
Procedure Act (APA). However, that right accrues only to a person “who is

aggrieved by a final decision in a contested case” and “who has exhausted all

administrative remedies.” Tex. Gov’t Code § 2001.171. Upon such a judicial review

after the DMV issues its final decision in this case, section 2001.174 of the APA

provides for reversal or remand of a decision in a contested case if the substantial

rights of the appellant have been prejudiced because the decision was entered in

violation of a constitutional or statutory provision. Tex. Gov’t Code

§ 2001.174(2)(A).

      C.     Audi’s claims are properly brought in a suit for judicial review
             after exhaustion of administrative remedies.

      If Audi is dissatisfied with this PFD and the subsequent final decision issued

by the DMV, it will have a chance to argue and develop its case through a suit for

judicial review in district court under the Administrative Procedure Act. Audi can

then argue that the remand was improper. If it is dissatisfied with the actions of the

district court, it will once again have the opportunity to appeal to this Court. This

Court will, ultimately, have the opportunity to rule on whether the remand was

proper.

                         CONCLUSION AND PRAYER

      For the reasons stated above, SOAH ALJs ask this Court to affirm the trial

court’s granting of the SOAH ALJ’s Plea to the Jurisdiction.



                                         11
Respectfully submitted,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

SHELLEY DAHLBERG
Associate Deputy Attorney General for Civil
Litigation

DAVID A. TALBOT, JR.
Chief, Administrative Law Division
/s/ Kimberly L. Fuchs
KIMBERLY L. FUCHS
State Bar No. 24044140
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

ATTORNEYS 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




 12
                      CERTIFICATE OF COMPLIANCE

      I certify that the Brief of Appellees O’Malley and Wilkov submitted complies

with Rule 9 of the Texas Rules of Appellate Procedure and the word count of this

document is 2,654. The word processing software used to prepare this filing and

calculate the word count of the document is Microsoft Word 2013.

Date: August 14, 2014
                                       /s/ Kimberly L. Fuchs
                                       KIMBERLY L. FUCHS
                                       Attorney for Appellees
                                       SOAH Administrative Law Judges
                                       O’Malley and Wilkov

                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing Brief of Appellees

O’Malley and Wilkov has been served on August 14, 2015, on the following parties

and/or counsel-of-record via electronic transmission, e-mail and/or facsimile:

S. Shawn Stephens                        J. Bruce Bennett
Texas Bar No. 19160060                   State Bar No. 02145500
James P. Sullivan                        Cardwell, Hart & Bennett, LLP
Texas Bar No. 24070702                   807 Brazos, Suite 1001
King & Spalding LLP                      Austin, Texas 78701
1100 Louisiana, Suite 4000               Telephone: (512) 322-0011
Houston, Texas 77002                     Facsimile: (512) 322-0808
Telephone: (713) 751-3200                jbb.chblaw@sbcglobal.net
Facsimile: (713) 751-3290
sstephens@kslaw.com                      Attorneys for Appellees
jsullivan@kslaw.com                      Ricardo M. Weitz, Hi Tech Imports North,
                                         LLC, Hi Tech Imports South, LLC, and
Attorneys for Appellants                 Hi Tech Imports, LLC
Volkswagen Group of Americas, Inc.
and Audi of America, Inc.

                                         13
Billy M. Donley                       Joseph W. Letzer
State Bar No. 05977085                State Bar No. 24030763
Mark E. Smith                         Dent M. Morton
State Bar No. 24070639                State Bar No. 24056645
Baker & Hostetler LLP                 Burr & Forman, LLP
811 Main Street, Suite 1100           420 20TH Street N, Suite 3400
Houston, Texas 77002                  Birmingham, AL 35203-5210
Telephone: (713) 751-1600             Telephone: (205) 251-3000
Facsimile: (713) 751-1717             Facsimile: (205) 458-5100
bdonley@bakerlaw.com                  jletzer@burr.com
mesmith@bakerlaw.com                  dmorton@burr.com

Attorneys for Appellants              Attorneys for Appellees
Volkswagen Group of Americas, Inc.    Ricardo M. Weitz, Hi Tech Imports North,
and Audi of America, Inc.             LLC, Hi Tech Imports South, LLC, and
                                      Hi Tech Imports, LLC

William R. Crocker                    Dennis McKinney
State Bar No. 5091000                 State Bar No. 13719300
Attorney at Law                       Assistant Attorney General
807 Brazos, Ste 1014                  Administrative Law Division
Austin, Texas 78701                   Office of the Attorney General of Texas
P.O. Box 1418                         P.O. Box 12548, Capitol Station
Austin, Texas 78767                   Austin, Texas 78711-2548
Telephone: (512) 478-5611             Telephone: (512) 475-4020
Facsimile: (512) 474-2540             Facsimile: (512) 320-0167
crockerlaw@earthlink.net              dennis.mckinney@texasattorneygeneral.gov

Attorney for Appellee                 Attorney for Appellee
Budget Leasing, Inc. d/b/a            John Walker III, in his official capacity as
Audi North Austin and                 Chairman of the Texas Department of
Audi South Austin                     Motor Vehicles Board


                                     /s/ Kimberly L. Fuchs
                                     KIMBERLY L. FUCHS
                                     Attorney for Appellees
                                     SOAH Administrative Law Judges
                                     O’Malley and Wilkov


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