                                                                                                ACCEPTED
                                                                                            03-15-00285-CV
                                                                                                    5846601
                                                                                 THIRD COURT OF APPEALS
                                                                                            AUSTIN, TEXAS
                                                                                       6/26/2015 3:32:15 PM
                                                                                          JEFFREY D. KYLE
                                                                                                     CLERK
                        CAUSE NO. 03-15-00285-CV

                                                                      FILED IN
                       IN THE COURT OF APPEALS    3rd COURT OF APPEALS
                   FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS
                                                  6/26/2015 3:32:15 PM
                            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

     APPELLEES O’MALLEY AND WILKOV’S RESPONSE TO
   APPELLANTS’ VERIFIED MOTION FOR TEMPORARY RELIEF


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, THE
DAVID A. TALBOT, JR.                         HONORABLE MICHAEL J. O’MALLEY AND
Chief, Administrative Law Division           THE HONORABLE PENNY A. WILKOV

June 26, 2015
                IDENTITY OF PARTIES AND COUNSEL

APPELLANTS:                                COUNSEL:

Volkswagen Group of America, Inc.,         S. SHAWN STEPHENS
and Audi of America, Inc.                  Texas Bar No. 19160060
                                           JAMES P. SULLIVAN
                                           Texas Bar No. 24070702
                                           King & Spalding LLP
                                           1100 Louisiana, Suite 4000
                                           Houston, Texas 77002
                                           Telephone: (713) 751-3200
                                           Facsimile: (713) 751-3290
                                           sstephens@kslaw.com
                                           jsullivan@kslaw.com

                                           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
                                           bdonley@bakerlaw.com
                                           mesmith@bakerlaw.com

APPELLEE:                                  COUNSEL:

John Walker, III                           DENNIS McKINNEY
in his official capacity as                State Bar No. 13719300
Chairman of the Texas Department of        Assistant Attorney General
Motor Vehicles Board                       Administrative Law Division
                                           Office of the Attorney General of Texas
                                           P.O. Box 12548, Capitol Station
                                           Austin, Texas 78711-2548
                                           Telephone: (512) 475-4020
                                           Facsimile: (512) 320-0167
                                           dennis.mckinney@texasattorneygeneral.gov

                                      ii
APPELLEES:                                  COUNSEL:

The Honorable Michael J. O’Malley           KIMBERLY L. FUCHS
and The Honorable Penny A. Wilkov,          State Bar No. 24044140
in their official capacities as             Administrative Law Division
Administrative Law Judges for the State     Office of the Attorney General of Texas
Office of Administrative Hearings           P.O. Box 12548, Capitol Station
                                            Austin, Texas 78711-2548
                                            Telephone: (512) 475-4195
                                            Facsimile: (512) 320-0167
                                            kimberly.fuchs@texasattorneygeneral.gov

APPELLEES:                                  COUNSEL:

Budget Leasing, Inc. d/b/a                  WM. R. CROCKER
Audi North Austin and                       State Bar No. 5091000
Audi South Austin                           Attorney at Law
                                            807 Brazos, Ste 1014
                                            Austin, Texas 78701
                                            P.O. Box 1418
                                            Austin, Texas 78767
                                            Telephone: (512) 478-5611
                                            Facsimile: (512) 474-2540
                                            crockerlaw@earthlink.net

APPELLEES:                                  COUNSEL:

Ricardo M. Weitz, Hi Tech Imports           J. BRUCE BENNETT
North, LLC, Hi Tech Imports South,          State Bar No. 02145500
LLC, and Hi Tech Imports, LLC               Cardwell, Hart & Bennett, LLP
                                            807 Brazos, Suite 1001
                                            Austin, Texas 78701
                                            Telephone: (512) 322-0011
                                            Facsimile: (512) 322-0808
                                            jbb.chblaw@sbcglobal.net

                                            and




                                          iii
                                              COUNSEL:

                                          JOSEPH W. LETZER
                                          State Bar No. 24030763
                                          DENT M. MORTON
                                          State Bar No. 24056645
                                          Burr & Forman, LLP
                                          420 20TH Street N, Suite 3400
                                          Birmingham, AL 35203-5210
                                          Telephone: (205) 251-3000
                                          Facsimile: (205) 458-5100
                                          jletzer@burr.com
                                          dmorton@burr.com



                       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.”




                                         iv
                                        TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

REFERENCE TO THE PARTIES .......................................................................... iv

TABLE OF CONTENTS ...........................................................................................v

INTRODUCTION .....................................................................................................1

ARGUMENT .............................................................................................................2

A.       TRAP 29.3 is inapplicable to this case. ........................................................... 2

B.       The Court’s power to issue a Writ of Injunction is circumscribed by the
         Texas Constitution. .......................................................................................... 3

C.       Audi has little realistic chance of prevailing in its underlying case because
         its ultra vires claims against the SOAH ALJs are meritless. .......................... 6

CONCLUSION AND PRAYER .............................................................................11

CERTIFICATE OF COMPLIANCE .......................................................................12

CERTIFICATE OF SERVICE ................................................................................12




                                                           v
                                    INDEX OF AUTHORITIES
CASES

Andrade v. NAACP of Austin,
345 S.W.3d 1 (Tex. 2011) ..........................................................................................9

Baird v. Sam Houston Elec. Coop, 627 S.W.2d 732
(Tex. App.—Houston [1st Dist.] 1981, no writ)........................................................6

City of El Paso v. Heinrich,
284 S.W.3d 366 (Tex. 2009) ..................................................................................5, 7

Coastal Habitat Alliance v. Pub. Util. Comm’n of Tex.,
294 S.W.3d 276 (Tex. App.—Austin 2009, no pet.) .................................................9

Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on Envtl. Quality,
307 S.W.3d 505 (Tex. App.—Austin 2010, no pet.) ...............................................10

Foster v. Tex. Dep’t of Criminal Justice,
344 S.W.3d 543 (Tex. App.—Austin 2011, pet. denied) ........................................10

Hendee v. Dewhurst,
228 S.W.3d 354 (Tex. App.—Austin 2007, pet. denied) ..........................................9

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.)...............................................................9

Klumb v. Houston Mun. Emps. Pension Sys.,
405 S.W.3d 204 (Tex. App.—Houston [1st Dist.] 2013);
aff’d, 458 S.W.3d 1 (Tex. 2015) ..............................................................................10

Madison v. Martinez,
42 S.W.2d 84 (Tex. Civ. App.—Dallas 1931, writ ref’d) .........................................3


                                                        vi
Mote Res. Inc. v. R.R. Comm’n of Tex.,
618 S.W.2d 877 (Tex. Civ. App.—Austin 1981, no writ) .........................................5

N. Alamo Water Supply Corp. v. Tex. Dep’t of Health,
839 S.W.2d 455 (Tex. App.—Austin 1992, writ denied) ..........................................9

State v. Sledge,
36 S.W.3d 152 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) ........................8

Sw. Pharmacy Solutions, Inc. v. Tex. Health and Human Servs. Comm'n,
408 S.W.3d 549 (Tex. App.—Austin 2013, pet. denied) ..........................................8

Tex. Dep’t of Transp. v. Kyle,
No. 04-06-00762-CV, 2007 WL 1346555
(Tex. App.—San Antonio May 9, 2007, pet. denied)..............................................10

Tex. Workers Comp. Comm’n v. Horton,
187 S.W.3d 282 (Tex. App.—Beaumont 2006, no pet.) .........................................10

Westheimer Indep. Sch. Dist. v. Brockette,
567 S.W.2d 780 (Tex. 1978) ......................................................................................8

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. XXX-XX-XXXX.LIC,
Remand Order No. 15 (Jun. 16, 2015) .......................................................................4

RULES
Tex. R. App. P. 29.3...................................................................................................2
Tex. R. Civ. P. 329b ...................................................................................................8



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©.

                                                          vii
CONSTITUTIONAL PROVISIONS
Tex. Const. Art. V § 6(a) ..........................................................................................3




                                                        viii
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      Appellees Michael J. O’Malley and Penny A. Wilkov object to Appellants’

motion for temporary relief because the ultimate subject matter of the appeal will

not be moot if temporary relief does not issue, and Audi’s claim for relief lacks merit.

SOAH has not committed any ultra vires acts, and Audi will have a right to judicial

review of any final order issued by the DMV.

                                 INTRODUCTION

      Audi alleges the ALJs violated SOAH procedural Rule 155.153 by accepting

a case remanded to them by the Department of Motor Vehicles (DMV). The rule at

issue states that an Administrative Law Judge may reopen evidence in a case if the

Proposal for Decision (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 considering cases on remand. The ALJs have not committed ultra vires acts,

and Audi’s claim fails on its face. The trial court rightly granted the Plea to the

Jurisdiction.

      Additionally, temporary orders are an extraordinary remedy and are not

needed or justified in this case. The ultimate subject matter in this case revolves

around whether the remand from DMV to SOAH was proper and whether the ALJs

properly reopened the evidence on remand. These issues can be raised, if necessary,

in a properly filed suit for judicial review under the Administrative Procedure Act
(APA), but before this occurs, the administrative procedure must be permitted to

conclude.

                                   ARGUMENT

      A. TRAP 29.3 is inapplicable to this case.

      As a preliminary matter, Audi brings its motion under Rule of Appellate

Procedure 29.3. However, Rule 29.3 does not apply.

      Rule of Appellate Procedure 29.3 provides:

      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 and may require appropriate
      security. But the appellate court must not suspend the trial court’s order
      if the appellant’s rights would be adequately protected by supersedeas
      or another order made under Rule 24.

TEX. R. APP. P. 29.3.

      The lower court granted both Defendant Walker’s Plea to the Jurisdiction and

Defendants O’Malley and Wilkov’s Plea to the Jurisdiction, disposing of all parties

and claims to the litigation.    C.R. 2030-31.     These orders did not constitute

interlocutory orders, but rather final orders. C.R. 2030-34; 2049. Therefore, Rule

29.3 does not apply.




                                          2
      B.    The Court’s power to issue a Writ of Injunction is circumscribed
            by the Texas Constitution.
      Despite the inapplicability of Rule 29.3, this Court does possess the authority

to issue temporary orders, but the scope of this authority is narrower than that granted

to the Courts under the appellate rule. The Texas Constitution limits the Court’s

inherent authority to issue relief against the parties to a pending appeal. That inherent

authority extends only to orders that protect appellate jurisdiction. TEX. CONST. art.

V § 6(a); e.g., Madison v. Martinez, 42 S.W.2d 84, 86 (Tex. Civ. App.—Dallas 1931,

writ ref’d). This grant of authority does not establish a right on the part of any party,

it is within the discretion of the Court. Madison v. Martinez, 42 S.W.2d at 86

(“Courts of Civil Appeals and the judges thereof “may issue writs of mandamus and

all other writs necessary to enforce the jurisdiction of said courts.””). To the extent

the Court seeks to protect its jurisdiction, it may issue writs of injunction, to the

parties, and prohibition, to the lower courts.

      In this case, while the specific alleged ultra vires claim against SOAH may

become moot during the pendency of the appeal, the Court will not lose its

jurisdiction over the underlying subject matter. This case ultimately involves

whether the DMV properly remanded this case to SOAH and whether the ALJs

properly accepted the remand. This Court will not lose its ability to make a decision

on this issue.



                                           3
      The ALJs have already re-opened and re-closed the record, and they will soon

issue a new PFD. If Audi is dissatisfied with this PFD and the subsequent actions

taken 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.

      Although Audi claims this court needs to issue extraordinary relief to preserve

its claims that SOAH committed an ultra vires act by reopening the record in

violation of Rule 155.153, this claim is already moot. Rule 155.153 says:

(a) Judge’s authority and duties. The judge shall have the authority and duty to:
    (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. XXX-XX-XXXX.LIC, Remand Order No. 15 (Jun. 16, 2015)


                                           4
(remand order closing the record). 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 366, 376 (Tex. 2009).

       The larger issue, whether the remand was proper, will not be moot for failure

to issue a temporary order. What Audi is really asking for is an injunction preventing

SOAH from issuing a second PFD. Audi has failed to plead a proper cause of action

for this type of relief.

       Therefore, Audi’s request for an injunction barring the ALJs from issuing a

new PFD is not proper under the constitutional standard. The situations in which

the use of such an extraordinary remedy is proper include only those situations in

which the Court will not have the ability to rule on the ultimate subject matter

without such relief. A writ of injunction is appropriate, for example, to prevent the

sale of real property to which a party asserts a present right that will not cease to

exist unless and until a court rules on the substance of the lawsuit. E.g., Mote Res.

Inc. v. R.R. Comm’n of Tex., 618 S.W.2d 877, 879 (Tex. Civ. App.—Austin 1981,

no writ) (issuing appellate injunction for deprivation of title to oil and gas produced

under the rule of capture, because property interest in captured minerals would not

be extinguished, if at all, until final judgment).




                                            5
      This grant of authority is significantly more constrained than the trial court’s

authority, in the exercise of plenary jurisdiction, to issue a temporary injunction

order preserving the status quo ante. See Baird v. Sam Houston Elec. Coop, 627

S.W.2d 732, 733-34 (Tex. App.—Houston [1st Dist.] 1981, no writ). The Court

lacks authority to issue the writ merely to preserve the parties from alleged harm

pending appeal. Id.

      In the instant case, the effect of the refusal of the district court to grant

temporary relief would result only in a delay in having the remand issue considered,

leaving the subject matter of the appeal in such a condition that the judgment of this

court could effectively operate thereon. Therefore, this Court is without jurisdiction

to grant such relief, because its jurisdiction over the subject matter of the appeal

would not be invaded by failure to grant the relief. To the extent this Court decides

it does have jurisdiction to issue the requested orders, ALJs O’Malley and Wilkov

ask this Court to decline to issue an injunction, as Audi will have an opportunity to

challenge the remand at a later time.

      C. Audi has little realistic chance of prevailing in its underlying case
         because its ultra vires claims against the SOAH ALJs are meritless.
      To the extent this Court’s jurisdiction to enter Audi’s requested order is

proper, this Court should decline jurisdiction because Audi’s underlying claim

against the SOAH ALJs is meritless.



                                          6
         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 at 372. Audi claims the SOAH ALJs violated SOAH’s

Procedural Rule 155.153 by accepting a case remanded to SOAH. Although the

ALJs do not dispute that substantive Agency Rules are generally treated like statutes,

at least in matters of statutory construction, Audi has pointed to no precedent

indicating that violation of a procedural rule can -form the basis of an ultra vires

claim.

         SOAH has always interpreted Rule 155.153 to mean its ALJs 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

can show that the ALJs’ interpretation of this rule is inconsistent with their statutory

authority. Audi has made no attempt to do so.

         Audi cited no cases holding that Rule 155.153 prevents remands. In fact, the

legislature specifically contemplated SOAH evaluating new evidence on remand.

(See Tex. Gov’t Code § 2001.175(c), which authorizes a district court to order

SOAH to consider evidence not already in the record.) The process at SOAH is akin

to the process in the court system. If a district court receives a request to reconsider


                                           7
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.

      Further, 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).

      Further, in order to state a claim against the ALJs, not only must the

Appellants specifically state a cause of action, they must also demonstrate that the

cause of action waives the state’s immunity. “A party who sues the State must have

an independent waiver 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


                                           8
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.). Because Audi

has failed to state an ultra vires claim, it has also failed to waive the SOAH ALJs

entitlement to sovereign immunity.

      In Hendee v. Dewhurst, this Court clearly explained this principle, opining:

      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.

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

Audi must plead facts that demonstrate the ALJs 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

                                           9
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”).

      And, if the claim is subject to dismissal, it is an improper basis for temporary

relief by either the trial court or the court of appeals. The lack of an ultra vires act

implicates subject-matter jurisdiction over the underlying lawsuit. If a party

successfully challenges subject-matter jurisdiction in a temporary injunction

proceeding, no temporary relief can issue. Foster v. Tex. Dep’t of Criminal Justice,

344 S.W.3d 543, 549 (Tex. App.—Austin 2011, pet. denied) (no temporary

injunction if underlying claim is barred); see also Tex. Dep’t of Transp. v. Kyle, No.

04-06-00762-CV, 2007 WL 1346555, at *7 (Tex. App.—San Antonio May 9, 2007,

pet. denied) (mem. op.); Tex. Workers Comp. Comm’n v. Horton, 187 S.W.3d 282,

290 (Tex. App.—Beaumont 2006, no pet.) Likewise, an appellate court cannot issue

interim relief in a case over which it has no jurisdiction.




                                          10
                        CONCLUSION AND PRAYER

      For the reasons stated above, SOAH ALJs ask this Court to deny Appellants’

motion for temporary relief.

                                    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 Fuchs
                                    KIMBERLY 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



                                      11
                      CERTIFICATE OF COMPLIANCE

      I certify that the Response submitted by Defendants O’Malley and Wilkov of

the State Office of Administrative Hearings complies with Rule 9 of the Texas Rules

of Appellate Procedure and the word count of this document is 2,562. The word

processing software used to prepare this filing and calculate the word count of the

document is Microsoft Word 2013.

Date: June 26, 2015
                                        /s/ Kimberly Fuchs
                                        KIMBERLY FUCHS
                                        ATTORNEY FOR DEFENDANT
                                        STATE OFFICE OF ADMINISTRATIVE
                                        HEARINGS

                         CERTIFICATE OF SERVICE

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

O’Malley and Wilkov’s Response to Appellants’ Verified Motion for Temporary

Relief has been served on June 26, 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
jsullivan@kslaw.com

                                         12
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 Fuchs
                                     KIMBERLY FUCHS
                                     ATTORNEY FOR APPELLEES
                                     SOAH ADMINISTRATIVE LAW JUDGES
                                     O’MALLEY AND WILKOV

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