                                                                                          ACCEPTED
                                                                                      03-15-00528-CV
                                                                                              6736273
                                                                           THIRD COURT OF APPEALS
                                                                                      AUSTIN, TEXAS
                                                                                  9/1/2015 8:39:23 AM
                                                                                    JEFFREY D. KYLE
                                                                                               CLERK
                              No. 03-15-00528-CV
                                                                FILED IN
                     In the Third Court of Appeals 3rd AUSTIN,
                                                       COURT OF APPEALS
                                                                TEXAS
                             Austin, Texas         9/1/2015 8:39:23 AM
                                                             JEFFREY D. KYLE
                                                                  Clerk

               TEXAS EDUCATION AGENCY AND MICHAEL WILLIAMS,
             COMMISSIONER OF EDUCATION, IN HIS OFFICIAL CAPACITY,

                                     Appellants

                                          v.

            ACADEMY OF CAREERS AND TECHNOLOGIES, INC. D/B/A
         ACADEMY OF CAREERS AND TECHNOLOGIES CHARTER SCHOOL,

                                      Appellee


             ACCELERATED APPEAL FROM CAUSE NO. D-1-GN-15-002879
             200TH JUDICIAL DISTRICT COURT OF TRAVIS COUNTY, TEXAS


             APPELLEE’S MOTION TO DISMISS ACCELERATED
                 APPEAL FOR WANT OF JURISDICTION


TO THE HONORABLE THIRD COURT OF APPEALS:

      Appellee Academy of Careers and Technologies, Inc. d/b/a Academy of

Careers and Technologies Charter School files this motion asking the Court to

dismiss this appeal for want of jurisdiction.

      1.      Appellants are the Texas Education Agency and Michael Williams,

Commissioner of Education (collectively “TEA”). Appellee is the Academy of
Careers and Technologies, Inc. d/b/a Academy of Careers and Technologies

Charter School (“ACT”).

       2.      On August 21, 2015, TEA filed a notice of accelerated appeal to

challenge an order—purportedly signed the same date—denying its plea to the

jurisdiction and granting a temporary injunction. See Exhibit A. In a docketing

statement filed four days later, TEA again claimed to be appealing an order signed

on August 21, 2015.

       3.      ACT’s undersigned counsel was not involved in the proceedings

below. From reviewing the district court’s file and communicating with the trial

judge’s staff, the undersigned has learned that no order granting a temporary

injunction or denying a plea to the jurisdiction was signed on August 21, 2015 or

afterward through the date of this filing.1 Thus, this appeal is premature. A

prematurely filed notice of appeal has no effect until the appellate deadline is

triggered and therefore does not vest this Court with jurisdiction. See TEX. R. APP.

P. 25.1(b), 27.1(a).

       4.      Ordinarily, the Court might allow an appellant time to cure this sort of

jurisdictional defect. See, e.g., Smith Cnty. v. Popovac, No. 12-11-00329-CV, 2011

WL 6119266, at *1 (Tex. App.—Tyler Dec. 7, 2011, no pet.) (mem. op.)


1
       The appellate record was due on August 31, 2015. Based on these observations, the record is not
expected to contain the order TEA is purportedly appealing.



                                                  2
(dismissing appeal from purported denial of plea to jurisdiction when trial court

had not yet memorialized its ruling in writing and appellant could not cure defect).

But the Court should not follow that course here. By asserting that appellate

jurisdiction has attached—incorrectly and perhaps even deliberately so—TEA

seeks to prevent the trial court from taking any further action while the case is on

appeal.2 See Exhibit A at 2 (asserting that alleged temporary injunction is

automatically stayed while appeal remains pending and that, by virtue of purported

challenge to denial of its jurisdictional plea, all proceedings before trial court are

stayed pending resolution of appeal). Compare In re State Bd. For Educator

Certification, 452 S.W.3d 802, 808-10 (Tex. 2014) (orig. proceeding) (holding that

governmental entity’s notice of appeal does not deprive trial court of discretion to

deny supersedeas), with In re Tex. Educ. Agency, 441 S.W.3d 747, 750 (Tex.

App.—Austin 2014, orig. proceeding [mand. denied]) (holding that district court

abused discretion by holding hearing and granting charter schools’ motion to deny

supersedeas after TEA filed notice of appeal and invoked statutory stay that

attaches when trial court denies plea to jurisdiction). This Court should not allow

TEA to create a perception in the trial court or elsewhere that its premature notice

of accelerated appeal could have such an effect.


2
        Ironically, if TEA is correct and the proceedings below are already stayed, then the trial court
arguably lacks the ability to sign the very order TEA has prematurely sought to appeal.



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                         CONCLUSION AND PRAYER

       Appellee respectfully requests that the Court grant this motion and dismiss

this appeal for want of jurisdiction. Appellee requests all other appropriate relief to

which it is entitled.

                                        Respectfully submitted,

                                        SMITH LAW GROUP LLLP
                                        1250 Capital of Texas Highway South
                                        Three Cielo Center, Suite 601
                                        Austin, Texas 78746
                                        (512) 439-3230
                                        (512) 439-3232 (fax)

                                        By:   /s/D. Todd Smith
                                              D. Todd Smith
                                              State Bar No. 00797451
                                              todd@appealsplus.com

                                        Counsel for Appellee, Academy of Careers
                                        and Technologies, Inc. d/b/a Academy of
                                        Careers and Technologies Charter School

                        CERTIFICATE OF CONFERENCE

       In compliance with Texas Rule of Appellate Procedure 10.1(a)(5), I certify

that I attempted to confer with Erika Laremont, lead appellate counsel for

Appellants, but was unable to reach her before filing this motion. Given the relief

requested, appellee presumes the motion would be opposed.

                                        /s/D. Todd Smith
                                        D. Todd Smith




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                         CERTIFICATE OF SERVICE

      On September 1, 2015, in compliance with Texas Rule of Appellate

Procedure 9.5, I served this document by e-service, e-mail, facsimile, or mail to:

      Erika M. Laremont
      erika.laremont@texasattorneygeneral.gov
      Assistant Attorney General
      General Litigation Division
      P.O. Box 12548
      Austin, Texas 78711-2548

      Counsel for Appellant

                                              /s/ D. Todd Smith
                                              D. Todd Smith




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                                CAUSE NO. D-1-GN-15-002879

 ACADEMY OF CAREERS AND                         §           IN THE DISTRICT COURT
 TECHNOLOGIES INC. d/b/a ACADEMY                §
 OF CAREERS AND TECHNOLOGIES                    §
 CHARTER SCHOOL                                 §
      Plaintiff,                                §
                                                §
 v.                                             §            98th JUDICIAL DISTRICT
                                                §
 TEXAS EDUCATION AGENCY and                     §
 MICHAEL WILLIAMS in his Official               §
 Capacity as the Commissioner of Education      §
        Defendants.                             §           TRAVIS COUNTY, TEXAS



           DEFENDANTS’ NOTICE OF ACCELERATED APPEAL AND
                    NOTICE OF AUTOMATIC STAY

TO THE HONORABLE DISTRICT COURT JUDGE:

        Defendants the Texas Education Agency and Michael L. Williams, Commissioner of

Education, in his Official Capacity, (“Defendants”) file this Notice of Accelerated Appeal of the

Court’s Order of the 200th District Court of Travis County, the Honorable Gisela D. Triana

presiding, signed August 21, 2015, in the above-referenced cause of action which denied

Defendants’ Plea to the Jurisdiction and granted Plaintiff’s temporary injunction.

        Defendants are entitled to this interlocutory appeal pursuant to TEX. CIV. PRAC. & REM

CODE REM. CODE § 51.014(a)(4) and (8), which allows appeal from a district court’s interlocutory

order granting a temporary injunction or order denying a governmental unit’s plea to the

jurisdiction.

        This appeal involves issues similar to those raised in two other matters involving three

charter schools—American Youthworks Charter School, Honors Academy, and Azleway Charter




                                        Exhibit A
School —which are currently on appeal in the Court of Appeals for the Third Judicial District,

Austin, Texas, Nos. 03-14-00283-CV and 03-14-00360-CV.

                                  ACCELERATED APPEAL

       Pursuant to TEX. R. APP. P. 25.1(d)(6) and 28.1(a), Defendants give notice that this is an

accelerated appeal to the Third District Court of Appeals, as it is an appeal of an interlocutory

order allowed as of right by statute. See TEX. CIV. PRAC. & REM. CODE §§ 51.014(a)(4), (8).


       NOTICE OF STAY OF ALL PROCEEDINGS IN TRIAL COURT PENDING
                       RESOLUTION OF THIS APPEAL

       Defendants invoke TEX. R. APP. P. § 29.1(b) and TEX. CIV. PRAC. & REM. CODE § 6.001

by this Notice of Accelerated Appeal, thereby staying the Order awarding a temporary injunction.

See Public Utility Com’n of Texas v. Coalition of Cities for Affordable Utility Rates, 776 S.W.2d

221 (Tex.App.—Austin 1989) rev’d on other grounds by 798 S.W.2d 560 (pendency of an appeal

from an order granting interlocutory relief suspends order appealed from when appellant not

required to post bond). In light of Defendants’ denied jurisdictional challenge, they further invoke

TEX. CIV. PRAC. & REM. CODE § 51.014 (b) to stay “all other proceedings in the trial court pending

resolution” of this appeal of the August 21, 2015 Order.

           DEFENDANTS ARE NOT REQUIRED TO POST A COST BOND

      Notice is further given that pursuant to TEX. CIV. PRAC. & REM. CODE § 6.001,

Defendants are not required to file a bond for court costs. Defendants’ appeal is therefore

perfected upon the filing of the notice of appeal.




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                                        Respectfully submitted,


                                        KEN PAXTON
                                        Attorney General of Texas

                                        CHARLES E. ROY
                                        First Assistant Attorney General

                                        JAMES E. DAVIS
                                        Deputy Attorney General for Civil Litigation

                                        ANGELA V. COLMENERO
                                        Division Chief - General Litigation


                                        /s/ Erika M. Laremont
                                        ERIKA M. LAREMONT
                                        State Bar No. 24013003
                                        Assistant Attorney General
                                        General Litigation Division
                                        Post Office Box 12548, Capitol Station
                                        Austin, Texas 78711-2548
                                        512-463-2120 (Telephone)
                                        512-320-0667 (Facsimile)
                                        erika.laremont@texasattorneygeneral.gov
                                        ATTORNEYS FOR DEFENDANTS


                             CERTIFICATE OF SERVICE

      I hereby certify that a copy of the foregoing instrument has been sent via File &
ServeXpress and electronic mail on this the 21st day of August, 2015, to:

Ryan Henry
1380 Pantheon Way, Ste 215
San Antonio, TX 78232
Austin, TX 78701
(210) 569-6494 facsimile
                                        /s/ Erika M. Laremont
                                        ERIKA M. LAREMONT




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