                                                                                            ACCEPTED
                                                                                        03-15-00285-CV
                                                                                                5676464
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                   6/15/2015 1:26:18 PM
                                                                                      JEFFREY D. KYLE
                                                                                                 CLERK
                              NO. 03-15-00285-CV

                                                                        FILED IN
                     IN THE THIRD COURT OF APPEALS               3rd COURT OF APPEALS
                             AUSTIN, TEXAS                           AUSTIN, TEXAS
                                                                 6/15/2015 1:26:18 PM
                                                                   JEFFREY D. KYLE
                                                                         Clerk
                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 LAW JUDGES FOR THE STATE OFFICE OF
                ADMINISTRATIVE HEARINGS

                                                                          Appellees
     On Appeal from the 201st Judicial District Court, Travis County, Texas
                  Trial Court Cause No. D-1-GN-15-001186
              Honorable Amy Clark Meachum, Presiding Judge

APPELLANTS VOLKSWAGEN GROUP OF AMERICA, INC. AND AUDI
OF AMERICA, INC.’S VERIFIED MOTION FOR TEMPORARY RELIEF
            TO PROTECT THE COURT’S JURISDICTION
__________________________________________________________________

      Pursuant to Texas Rules of Appellate Procedure 29.3 and 43.6, Appellants

file this Motion for Temporary Order to Protect the Court’s Jurisdiction and show

as follows:

                            A.    INTRODUCTION

      1.      Appellants are automobile manufacturers Volkswagen Group of

America, Inc. and Audi of America, Inc. (collectively “Audi”).
        2.      Appellees are three individuals who are sued in their official

capacities, John Walker III, Michael J. O’Malley and Penny A. Wilkov. Walker is

Chair of the Texas Department of Motor Vehicles Board. O’Malley and Wilkov

are Administrative Law Judges for the State Office of Administrative Hearing

(SOAH)1.

        3.      In this appeal, Audi seeks to overturn the 201st Judicial District

Court’s erroneous grant of Defendants/Appellees’ Pleas to the Jurisdiction and the

resulting dismissal of Audi’s district court lawsuit.2

        4.      Audi requests temporary relief to protect this Court’s jurisdiction over

this appeal and to prevent the issues presented in this appeal from becoming moot.

                               B.      BACKGROUND FACTS

        5.      Audi filed suit in a Travis County district court to enjoin Appellees

from conducting ultra vires proceedings in an underlying contested administrative




1
        The Texas Supreme Court held in City of El Paso v. Heinrich, 284 S.W.3d 366, 368 (Tex. 2009),
that an action to “determine or protect a private party’s rights against a state official who has acted
without legal or statutory authority is not a suit against the State that sovereign immunity bars,” and,
therefore must be brought against the state actor in his or her official capacity since the state and its
subdivisions remain immune. Id. at 373; Southwestern Bell Tel., L.P. v. Emmett, ___ S.W.3d ____, 58
Tex. Sup. Ct. J. 567; 2015 WL 1285326 (Tex. 2015).
2
        The district court lawsuit was styled Cause No. D-1-GN-15-0001186, Volkswagen Group of
America, Inc. and Audi of America, Inc. 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.


                                                   2
case (Contested Case)3 that is pending in the Texas Department of Motor Vehicles,

Motor Vehicle Division (the Board). CR 117-148 and exhibits thereto. In the

Contested Case, Budget Leasing Inc. d/b/a Audi North Austin and Audi South

Austin (Budget), protested the manufacturer’s rejection of Budget’s proposed

transfer of two Audi dealerships to a group of investors. CR 367-369.

       6.      The Board referred Budget’s protest to the State Office of

Administrative Hearings (SOAH) for trial. CR 399-502. The trial on the merits

lasted nine days. Nineteen witnesses testified at the trial and almost 300 exhibits

were introduced. CR 138-39; 399-502. Subsequently, SOAH Administrative Law

Judges O’Malley and Wilkov (the “ALJs”) issued a Proposal for Decision (“PFD”)

in the administrative Contested Case in which they agreed with many of Audi’s

concerns about the proposed transfer and recommended that the Board issue a final

decision finding the prospective transferees unqualified, but found that the

prospective transferees would be qualified if they met certain conditions designed

to assuage Audi’s concerns. CR 399-502; 485-86.

       7.      The Board did not enter the decision proposed by the ALJs. Based on

its staff’s recommendation, the Board dismissed the protest because Budget had




3
        The administrative Contested Case is styled Budget Leasing, Inc. d/b/a Audi North Austin and
Audi South Austin v. Weitz, et. al. v. Volkswagen Group of America, Inc., et. al., MVD Docket No. 13-
0008-LIC, SOAH Docket No. XXX-XX-XXXX.LIC, before the Texas Department of Motor Vehicles, Motor
Vehicle Division (the “Contested Case”).


                                                 3
not strictly complied with the protest application provision of the Texas

Occupations Code. CR 503-505.

        8.      Budget and the Intervenors (some of the prospective transferees)4 filed

a motion for rehearing with the Board. Rehearing was granted and scheduled to

take place at the February 13, 2015 Board meeting. At the February 13th Board

meeting, the Board voted to remand the Contested Case back to SOAH, over

Audi’s objections that Chairman Walker did not have the statutory authority to

order the remand,5 and that the ALJs did not have the statutory power to conduct

the remand or reopen evidence after the issuance of a PFD.6                           Moreover, the

Contested Case was remanded on an expedited basis to the ALJs for further




4
         Under the Occupations Code, proposed transferees do not have standing to bring a protest
action—only the existing dealer has standing to protest a manufacturer’s refusal to approve a proper
transfer. Tex. Occ. Code § 2301.360(a) (“A dealer whose application is rejected under Section 2301.359
may file a protest with the board.”); Butnaru v. Ford Motor Company, 84 S.W.3d 198, 206 (Tex. 2002)
(“The Code’s definition of ‘dealer’ includes licensed dealers but not prospective transferees.”)
5
         Appellees do not have inherent powers. Instead, as state agency actors, they only have the
powers specifically given to them by the legislature. See e.g., Sexton v. Mount Olivet Cemetery Assn, 720
S.W.2d, 137 (Tex. App.—Austin 1986, writ ref’d n.r.e.). Chairman Walker was not authorized to issue a
remand because remand is not a remedy listed in § 2001.058(e) of the Administrative Procedure Act.
Further, the remand order materially differs from a board member’s motion. CR 7-8, 1898, 1905-06,
1908. Moreover, the remand is designed to consider “evidence” that was not timely filed despite the fact
that the Code only permits the board members and ALJs to consider “materials that are submitted timely.”
Tex. Occ. Code § 2301.709(a); 2301.154. This “evidence” was not presented for the Board’s
consideration until October 15, 2014 despite the fact that the evidence had closed on May 28, 2014, the
ALJs issued a PFD on July 16, 2014 and the Board issued a Final Order on September 12, 2014. CR 502,
505. In fact, this “evidence” was not even mentioned in Budget’s operating Motion for Rehearing. See
e.g., CR 139.
6
         The ALJs are outside their authority because SOAH Rule 155.153 only allows an ALJ to reopen
evidence “if the judge has not issued a dismissal, proposal for decision, or final decision.” Here, the
remand attempts to reopen evidence long after the ALJs issued a PFD. See e.g., CR 140.


                                                   4
proceedings pursuant to an Order signed by Walker.7 CR 152-53; 169.                                 As

requested by Chairman Walker, the ALJs created and began implementing an

expedited schedule for the remand. CR 133. CR 506-526; 152-153.

       9.      Consequently, Audi filed this lawsuit in district court to prevent,

among other things, the ultra vires: 1) remand of the Contested Case; 2) reopening

of evidence after issuance of the PFD; 3) issuance of a new PFD by the ALJs; and,

4) issuance of a new final decision. The Supreme Court has specifically approved

of the use of a declaratory judgment action/request for prospective injunctive relief

as the proper process for assessing whether individual state actors exceeded their

statutorily authorized powers in an underlying administrative proceeding. See e.g.,

Heinrich, 284 S.W.3d at 369. Where, as here, a state agency official acts beyond

his or her statutorily conferred powers, a trial court may intervene in a contested

case pending before an agency regardless of whether a party has exhausted its

administrative remedies. City of Sherman v. Public Util. Comm’n, 643 S.W.2d 681,

683, 685 (Tex. 1983); Westheimer Indep. Sch. Dist. v. Brockete, 567 S.W.2d 780,

785 (Tex. 1978); Yamaha Motor Corp. v. Motor Vehicle Division, 860 S.W.2d 223,

229 (Tex. App.—Austin 1993, writ denied); Appraisal Review Board of Harris

County Appraisal District v. O’Connor & Assocs., 267 S.W.3d 413, 419 (Tex.


7
       Not only did the Board’s order request that the ALJs expedite their remand proceedings, but
Chairman Walker also assured counsel for Budget that “as soon as we get this back . . . we will expedite
and move the process along as quickly as possible. You have my word on that.” Ritsema Affidavit at ¶
13.


                                                   5
App.—Houston [14th Dist.] 2008, no pet.) (citing cases). This exception to the

exhaustion of administrative remedies doctrine allows a trial court to intercede in

an agency matter before administrative remedies are exhausted because, in these

ultra vires cases, the purposes underlying the exhaustion of remedies rule are not

applicable, judicial and administrative efficacy are not served by requiring

exhaustion, and agency policies and expertise are irrelevant if the agency’s final

action will be a nullity. See City of Houston v. Williams, 99 S.W.3d 709, 717 (Tex.

App.—Houston [14th Dist.] 2003, no pet; Mag-T, L.P., 161 S.W.3d at 625.

      10.    Nevertheless, Defendants/Appellees filed Pleas to the Jurisdiction in

which they asserted, among other things, governmental immunity from suit and the

exhaustion of remedies doctrine. CR 821-843.

      11.    The court below erroneously granted the Defendants/Appellees’ Pleas

to the Jurisdiction, thereby allowing the ultra vires remand of the Contested Case

to go forward. CR 2030-31. Audi then filed this appeal and seeks the temporary

relief described below to protect this Court’s jurisdiction to decide this dispute.

            C.    INTERIM RELIEF REQUESTED TO PROTECT
                      THIS COURT’S JURISDICTION

      12.    Audi requests interim relief preventing Defendants/Appellees from

continuing the remand process in order to protect this Court’s jurisdiction and to

prevent this dispute from becoming moot.          As the facts below demonstrate,

mootness is a legitimate concern here because the remand could be completed

                                           6
before this Court reaches the merits of this appeal.

      13.    In fact, Chairman Walker requested expedited treatment for the

remand of the contested case and the ALJs are using a compressed schedule for the

remand of the contested case—the ALJs conducted the remand hearing on April

16, 2015 and required post-hearing briefing by May 28, 2015. CR 133;152-53;

169. Under the Administrative Procedure Act, the ALJs must issue a PFD within

60 days of the closing of evidence in a hearing. Tex. Gov’t Code § 2001.143.

Post-hearing briefing concludes on June 26, 2015 and the ALJs could issue a

second, ultra vires, PFD at any time within 60 days of the closing of the hearing.

As a result, the Board could enter a decision based on that PFD before September.

Ritsema Affidavit at ¶ 13.

      14.    Unless this Court grants temporary relief, those actions will moot this

appeal before this Court has the ability to consider this appeal, since this Court

does not hear arguments during the summer. In fact, its next oral arguments are

not scheduled until September 2, 2015. Therefore, even if this case was argued on

September 2 (which is not likely), there is little chance that this Court would be

able to issue an opinion on the merits of this appeal before the Appellees could

cause this dispute to become moot. This Court must reach the merits of this

appeal, dealing with construction of the Occupations Code and its interplay with

the Administrative Procedure Act and the Government Code, to be able to



                                          7
determine that Defendants/Appellees’ actions were ultra vires acts that constitute

an exception to immunity from suit. Southwestern Bell, 2015 WL 1285326 at *3;

See e.g., Texas Dept. of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011) (state

official who acts outside his statutory authority commits ultra vires act that is an

exception to governmental immunity and to the exhaustion of administrative

remedies doctrines). Therefore, this Court should issue interim relief to allow it to

reach these issues before they become moot.

                   B.    ARGUMENT AND AUTHORITIES

      15.    This Court has the power to issue a temporary order (halting

Appellees from conducting further remand proceedings and from issuing a PFD

and/or Final Decision) to prevent this appeal from becoming moot before this

Court has an opportunity to rule on the merits of Audi’s appeal.

      16.    In fact, this Court has inherent power to protect its jurisdiction and is

also authorized under Texas Rules of Appellate Procedure 29.3 and 43.6 to enter

temporary orders to protect its jurisdiction. Therefore, Appellant Audi requests

that this Court grant temporary relief to protect the Court’s jurisdiction over this

appeal while this Court considers the merits of Audi’s appeal.

      17.    Specifically, this Court has the power to bar any person from taking

any action which interferes with this Court’s jurisdiction, impairs the effectiveness

of any relief sought on appeal, or otherwise threatens to render an appeal moot.



                                          8
E.g., Tex. R. App. P. 29.3 (“When an appeal from an interlocutory order is

perfected, the appellate court may make any temporary orders necessary to

preserve the parties’ rights until disposition of the appeal . . .”); Tex. R. App. P.

43.6 (“The court of appeals may make any other appropriate order that the law and

the nature of the case require”); Cobb v. Thurmond, 899 S.W.2d 18, 19 (Tex.

App.—San Antonio 1995, writ denied) (“[An appellate court] may, on its own, act

to protect its jurisdiction by setting aside any action that would interfere with or

impair the effectiveness of any relief sought on appeal”); Lamar Builders, Inc. v.

Guardian Savings & Loan Association, 786 S.W.2d 789, 790 (Tex. App.—

Houston [1st Dist.] 1990, no writ) (“[An appellate court] has authority under rule

43(c) [now Rule 29.3], to issue such temporary orders as it finds necessary to

preserve the rights of the parties until disposition of the appeal . . .” and noting that

upon presentment of supporting evidence, it would be appropriate to enjoin

appellees from presenting letters of credit that would moot the appeal)8.




8
        See also Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 682-83 (Tex. 1989) (noting that a
superior appellate court has power to issue a writ against an inferior tribunal to prohibit it from interfering
with a pending appeal or enforcement of the appellate court’s orders); In re Lewis, 223 S.W.3d 756, 761
(Tex. App.—Texarkana 2007, orig. proceeding) (“[An order] may issue to . . .prevent interference with
higher courts in deciding a pending appeal . . . .”) (citing Tex. Capital Bank–Westwood v. Johnson, 864
S.W.2d 186, 187 (Tex. App.—Texarkana 1993, orig. proceeding); McClelland v. Partida, 818 S.W.2d
453, 456 (Tex. App.—Corpus Christi 1991, orig. proceeding)); In re Shields, 190 S.W.3d 717, 719 (Tex.
App.—Dallas 2005, no pet.) (citing Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 657
(Tex. 1992)) (“A court of appeals may issue such a writ to prevent an appeal from becoming moot.”)


                                                      9
       18.   As such, this Court has the power to prevent Appellees from taking

further steps in the administrative remand which threaten to render Audi’s appeal

moot and deprive this Court of jurisdiction over Audi’s appeal.

       WHEREFORE, PREMISES CONSIDERED, Appellants Volkswagen

Group of America, Inc. and Audi of America, Inc. respectfully request that this

Court grant temporary relief preventing Appellees from conducting further remand

proceedings in the contested case, from issuing a PFD based on the remand, and

from issuing, signing or entering a new Final Order based on the remand until this

Court rules on the merits of Audi’s appeal. Audi also requests such other and

further relief, both general and specific, at law and in equity, to which it may be

entitled.

                                             Respectfully submitted,

                                             KING & SPALDING LLP



                                             By: /s/ S. Shawn Stephens
                                             S. Shawn Stephens
                                             Texas Bar No. 19160060
                                             sstephens@kslaw.com
                                             James P. Sullivan
                                             Texas Bar No. 24070702
                                             jsullivan@kslaw.com
                                             1100 Louisiana, Suite 4000
                                             Houston, Texas 77002
                                             Telephone: (713) 751-3200
                                             Facsimile: (713) 751-3290



                                        10
                                           Billy M. Donley
                                           Texas Bar No. 05977085
                                           Mark E. Smith
                                           Texas Bar No. 24070639
                                           BAKER & HOSTETLER LLP
                                           811 Main Street, Suite 1100
                                           Houston, Texas 77002
                                           Telephone: (713) 751-1600
                                           Facsimile: (713) 751-1717

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


                    CERTIFICATE OF CONFERENCE

      As required by TEX. R. APP. P. 10.1, I conferred counsel for Appellees on
the merits of Appellants’ Verified Motion for Temporary Relief to Protect the
Court’s Jurisdiction. Dennis McKinney, counsel for Appellee John Walker III, is
not opposed. Kimberly Fuchs, Counsel for Appellees Michael J. O’Malley and
Penn A. Wilkov, is opposed. Dent M. Morton, counsel for Appellees Ricardo M.
Weitz; Hi Tech Imports North, LLC; Hi Tech Imports, South, LLC; and Hi Tech
Imports, LLC, is opposed.



                                           /s/ S. Shawn Stephens
                                           S. Shawn Stephens




                                      11
                        CERTIFICATE OF SERVICE

      I certify that on June 15, 2015, I used the Court’s electronic case filing
system to file this Motion for Temporary Order to Protect the Court’s Jurisdiction
and to serve this document on counsel for appellees as follows:


William R. Crocker                    Kimberly Fuchs
crockerlaw@earthlink.net              kimberly.fuchs@texasattorneygeneral.gov
807 Brazos, Ste. 1014                 Assistant Attorney General
Austin, Texas 78701                   Texas Attorney General’s Office
                                      P.O. Box 12548
Counsel for Appellees Ricardo M.      Austin, Texas 78711-2548
Weitz; Hi Tech Imports North, LLC;
Hi Tech Imports, South, LLC; and      Counsel for Appellees Michael J. O’Malley
Hi Tech Imports, LLC                  and Penny A. Wilkov

J. Bruce Bennett                      Dennis McKinney
jbb.chblaw@sbcglobal.net              dennis.mckinney@texasattorneygeneral.gov
Cardwell, Hart & Bennett, LLP         Assistant Attorney General
807 Brazos, Suite 1001                Texas Attorney General’s Office
Austin, Texas 78701                   P.O. Box 12548
                                      Austin, Texas 78711-2548
Counsel for Appellees Ricardo M.
Weitz; Hi Tech Imports North, LLC;    Counsel for Appellee John Walker III
Hi Tech Imports, South, LLC; and
Hi Tech Imports, LLC




                                       12
Joseph W. Letzer
jletzer@burr.com
Dent M. Morton
dmorton@burr.com
Burr & Forman, LLP
420 20th Street N., Suite 3400
Birmingham, AL 35203

Counsel for Appellees Ricardo M.
Weitz; Hi Tech Imports North, LLC;
Hi Tech Imports, South, LLC; and
Hi Tech Imports, LLC




                                          /s/ S. Shawn Stephens
                                          S. Shawn Stephens




                                     13
                                NO. 03-15-00285-CV

                          IN THE THIRD COURT OF APPEALS
                                  AUSTIN, TEXAS


                    VOLKSWAGEN GROUP OF AMERICA, INC.
                        AND AUDI OF AMERICA, INC.
                                                                         Appellants
                                         vs.

 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
                     Trial Court Cause No. D-1-GN-15-001186
                 Honorable Amy Clark Meachum, Presiding Judge

                AFFIDAVIT OF PAUL W. RITSEMA
__________________________________________________________________

STATE OF VIRGINIA                 §
                                  §
COUNTY OF FAIRFAX                 §

        1.      On this date, Paul W. Ritsema personally appeared before me, the

undersigned Notary Public, and after being duly sworn stated the following under

oath:

        2.      My name is Paul W. Ritsema. I am currently over the age of twenty-

one (21). I have never been convicted of a felony or a crime of moral turpitude. I

DMSLIBRARY01:25801724.1
am under no legal disability and I am fully competent to make this Affidavit. I am

Assistant General Counsel for Appellant Volkswagen Group of America, Inc. Audi

of America, Inc. is an operating division of Volkswagen Group of America, Inc.

(collectively, with Volkswagen Group of America, Inc., “Audi”). In my role as

Assistant General Counsel, I have worked closely with outside counsel throughout

the litigation of the underlying contested case styled Budget Leasing, Inc. d/b/a

Audi North Austin and Audi South Austin v. Weitz, et. al. v. Volkswagen Group of

America, Inc., et. al., MVD Docket No. 13-0008-LIC, SOAH Docket No. 608-13-

4599.LIC pending before the Texas Department of Motor Vehicles, Motor Vehicle

Division (the “Contested Case”).

        3.      I have reviewed Audi’s Motion for Temporary Order to Protect the

Court’s Jurisdiction. I have personal knowledge of the facts stated therein and in

this Affidavit and they are true and correct.

        4.      The Contested Case was filed on May 14, 2013. After a hearing on the

merits before Administrative Law Judges Michael J. O’Malley and Penny A.

Wilkov (collectively the “ALJs”) with the State Office of Administrative Hearings

(“SOAH”), the evidentiary record was closed on May 28, 2014. The ALJs issued a

Proposal for Decision (“PFD”) in the Contested Case on July 16, 2014.

        5.      On September 12, 2014, the Texas Department of Motor Vehicles

Board (the “Board”) issued its Final Order in the Contested Case, finding that the



DMSLIBRARY01:25801724.1                    2
Contested Case should be dismissed because the prospective transferees failed to

provide Audi with a written agreement to be bound by the terms of the dealer

agreement, as required by Texas Occupations Code § 2301.359(c)(3).

        6.      On October 2, 2014, Protestant Budget Leasing, Inc. d/b/a Audi North

Austin and Audi South Austin (“Protestant”) and Intervenors Ricardo M. Weitz, Hi

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

(“Intervenors”) filed a Motion for Rehearing of the Board’s Final Order. Audi

responded on October 13, 2014, and Protestant and Intervenors filed a reply to

Audi’s response brief on October 15, 2014. The Reply brief attached a copy of an

April 30, 2013 letter from Weitz to Sally Grimes of Audi (“April 30 Letter”) that

was never introduced at the hearing on the merits or attached to any other pleading

filed with the Board.

        7.      On December 10, 2014, the Board granted the motion for rehearing

and subsequently placed the Contested Case on its February 13, 2015 meeting

agenda.

        8.      On February 13, 2015, Chairman of the Board, John Walker III,

signed an Interim Order Remanding the Case to the State Office of Administrative

Hearings for Further Proceedings (the “Remand Order”) and directed SOAH to

consider, among other things, whether Audi received the April 30 Letter, and, if so,

its effect on the issue of compliance with Texas Occupations Code § 2301.359.



DMSLIBRARY01:25801724.1                    3
The Remand Order also instructed the ALJs to “address this matter as

expeditiously as possible [and] . . . accelerate the adjudication of this matter.”

        9.      On February 18, 2015, the ALJs issued an order setting a March 3,

2015 pre-hearing conference. On February 20, 2015, Audi filed a Motion to Send

Case Back to the Texas Department of Motor Vehicles Board, arguing, among

other things, that the Board lacked authority to remand the Contested Case and that

the ALJs lacked authority to reopen the evidentiary record. Nevertheless, this

motion was denied by the ALJs during the March 3, 2015 pre-hearing conference.

        10.     On April 16-17, 2015, the ALJs held a hearing on remand,

considering, among other additional evidence, the April 30 Letter.

        11.     On May 8, 2015, Audi filed its Closing Argument and Post-Hearing

Brief on Remand. On June 1, 2015, Protestant and Intervenor filed their Response

to Audi’s Closing Argument and Post-Hearing Brief on Remand. On June 10,

2015, Audi filed its Reply. Protestant’s and Intervenors’ replies are due no later

than June 26, 2015 and the record will close on that date.

        12.     It is my understanding that pursuant to Texas Government Code §

2001.143, the ALJs have only sixty (60) days after the hearing is closed to issue

their proposal for decision on remand.         Therefore, the ALJs must issue their

proposal for decision on or before August 25, 2015. Importantly, the ALJs may




DMSLIBRARY01:25801724.1                    4
issue their proposal for decision any day during this time frame and have been

requested to "accelerate the adjudication of this matter."

          13.       After the proposal for decision is issued and the parties file their

respective exceptions to the proposal for decision and any necessary replies, the

proposal for decision will be submitted to the Board. Board Chairman Walker

stated at the February 13, 2015 Board meeting that "as soon as we get this back, if

it comes back to us, if it's not resolved through the SOAH hearing, that we will

expedite and move the process along as quickly as possible. You have my word on

that." Given the ALJs may issue a proposal for decision at any time before August

25, 2015, it is possible that the Board could issue a final order on the proposal for

decision on remand before September 2015 or at any time shortly thereafter.

          Signed this /        2   day of June, 20 15 .



                                                     ~=r?-------.
       SUBSCRIBED and SWORN to before me on this                      ~day of June, 2015,
to certify which witness my hand and official seal.




                                                          Notary Public in a
                                                          Commonwealth of:




DMSLI BRAR YO I :25801724. I
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