                                                                                                                     ACCEPTED
                                                                                                                 12-15-00087-CV
                                                                                                  TWELFTH COURT OF APPEALS
                                                                                                                  TYLER, TEXAS
                                                                                           MATTHEW T. MILAM10/26/2015 4:23:27 PM
                                                                                           mmilam@wilsonlawfirm.com Pam Estes
                                                                                                                          CLERK




                                               October 26, 2015
                                                                                            FILED IN
                                                                                     12th COURT OF APPEALS
                                                                                          TYLER, TEXAS
Chief Justice James T. Worthen
                                                                                     10/26/2015 4:23:27 PM
Justice Brian Hoyle
Justice Greg Neeley                                                                         PAM ESTES
                                                                                              Clerk
Twelfth Court of Appeals
1517 West Front Street, Suite 354
Tyler, Texas 75702


       Re:     Case Number: 12-15-00087-CV
               Trial Court Case Number: 369-09
               Style: EXCO Operating Company, LP v. Mary K. McGee
               In the Twelfth Court of Appeals, Tyler, Texas


Dear Justices Worthen, Hoyle, and Neely:

        EXCO Operating Company, LP, (“EXCO”) submits this citation letter in accordance with this
Court’s request at oral argument on October 22, 2015.          At such argument, counsel for EXCO
represented that this Court could consider the issue of whether Tex. Civ. Prac. & Rem. Code § 38.001
permits Appellee, Mary K. McGee, to recover attorneys’ fees against a limited partnership, such as
EXCO, because, although not addressed in EXCO’s original brief, such issue was briefed by EXCO in
its reply and supplemental brief and by Appellee in her sur-reply brief. As requested, EXCO provides
the following authority to the Court.

        In McKelvy v. Barber, 381 S.W.2d 59 (Tex. 1964), the Texas Supreme Court addressed whether
the petitioner had waived his complaint as to an instructed verdict on statutory immunity grounds since
it was not raised in his brief. The Court noted that at the intermediate appellate court level, respondent
sought to uphold the instructed verdict on the statutory immunity ground urged in the trial court. Id. at
62. Petitioner responded with an extended discussion of the issue in his reply brief. Id. Respondent then
filed an additional reply dealing only with that issue. Id. The Court of Civil Appeals considered the
question on the merits and affirmed the judgment. Id. The Texas Supreme Court, in addressing whether
the issue had been waived because it had not been presented in the petitioner’s original brief, held:

               After a point of law has thus been briefed by all parties and decided by the Court
               of Civil Appeals, we think it should be treated as having been properly presented
               for decision at the intermediate court level even though not raised by a formal
               point of error in appellant’s brief.
               Id.

       Other Texas courts have followed this approach. See Carone v. Retamco Operating, Inc., 138
S.W.3d 1, 7 (Tex. App.–San Antonio 2004, pet. denied) (considering appellate issue of whether trial
court erred in denying special appearance on the basis that the special appearance was waived, even


         909 ESE Loop 323  Suite 400  Tyler, Texas  75701  P. O. Box 7339  Tyler, Texas  75711-7339
                                (903) 509-5000 Telephone  (903) 509-5091 Telefax
though appellant only raised issue in his reply brief); Hutchinson v. Pharris, 158 S.W.3d 554, 564 (Tex.
App.–Fort Worth 2005, no pet.) (“Ordinarily, an issue raised for the first time on appeal in a reply brief
is waived. However, the parties joined issue when Murray & Massie fully argued the evidence
supporting the negative finding to proximate cause in its response brief and Appellants replied.
Therefore, we will consider and address the issue as properly before us.”)

        In this instance EXCO first raised the issue of whether Tex. Civ. Prac. & Rem. Code § 38.001
permits Appellee to recover attorneys’ fees against a limited partnership, such as EXCO, in its reply
brief. EXCO then sought, and was granted, leave to file a supplemental brief dealing solely with this
question of law. Appellee subsequently requested and was granted leave to file a sur-reply brief. In its
sur-reply brief, Appellee fully addressed this legal issue. Accordingly, this issue has been briefed by
both parties and may properly be considered by this Court.


                                                    Very truly yours,

                                                    /s/ Matthew T. Milam

                                                    MATTHEW T. MILAM

MTM/wh


cc:    John D. Sloan, Jr. (Via email to jsloan@sloanlaw.com)
       Justin Smith (Via email to jsmith@sloanfirm.com)
       SLOAN, BAGLEY, HATCHER & PERRY LAW FIRM
       P.O. Drawer 2909
       Longview, Texas 75606
