                                                                                                                                         FILED
                                                                                                                                         17-0081
                                                                                                                                         12/22/2017 12:48 PM
                                                                                                                                         tex-21462083
                                                                                                                                         SUPREME COURT OF TEXAS
                                                                                                                                         BLAKE A. HAWTHORNE, CLERK




Bill Davis                                                                                                                                  (512) 936-1896
Assistant Solicitor General                                                                                                    bill.davis@oag.texas.gov
                                                            December 22, 2017

      Via E-Filing

      Blake A. Hawthorne, Clerk
      Supreme Court of Texas

             Re:        No. 17-0081; City of Krum v. Rice

      Dear Mr. Hawthorne:

          The State of Texas as amicus curiae files this letter brief in connection with the
      pending motion for rehearing in the above-referenced cause. The State has an
      interest in proper application of Texas Government Code sections 22.001 and
      22.225 as amended this year by House Bill 1761. See Act of May 19, 2017, 85th Leg.,
      R.S., ch. 150, 2017 Tex. Gen. Laws 291 (cited in City of Krum v. Rice, No. 17-0081,
      2017 WL 6390973, at *2 n.2 (Tex. Dec. 15, 2017) (per curiam)). Although this
      interest is relevant in all cases presented to the Court, it is particularly important to
      the State, its agencies, and its officials in interlocutory appeals, such as this one, that
      arise from orders on pleas to the jurisdiction governed by Texas Civil Practice and
      Remedies Code section 51.014(a)(8). The State files this letter brief in support of
      neither party. It takes no position on the questions addressed in the parties’ briefing
      or on whether the Court retained jurisdiction over this case after September 1, 2017.
      No fee has been or will be paid for the preparation of this letter brief.

         Sections 1 and 4 of House Bill 1761 altered the scope of this Court’s jurisdiction
      by amending Texas Government Code section 22.001 and repealing portions of
      section 22.225. 2017 Tex. Gen. Laws at 291–92. Section 6 made those changes
      “effect[ive] September 1, 2017.” Id. at 293. In the State’s view, that means this
      Court’s jurisdiction over cases that were pending in the Court on September 1, 2017,
      will generally depend only on whether “the appeal presents a question of law that is
      important to the jurisprudence of the state,” even if jurisdiction was initially
      premised on a different ground. Id. at 292 (§ 1, amending Tex. Gov’t Code

              P os t Of fic e B ox 12548 , Aust in, Texa s 7 8 7 1 1 - 2 5 4 8 • ( 5 1 2 ) 4 6 3 - 2 1 0 0 • www. t exa satt or n eygen era l. gov
§ 22.001(a)); see City of Austin v. Whittington, 384 S.W.3d 766, 790 (Tex. 2012)
(following Texas Municipal Power Agency v. PUC, which explained that
“jurisdictional statutes . . . . should be applied as they exist at the time judgment is
rendered, even if the laws did not exist when the original order was issued,” 253
S.W.3d 184, 198 (Tex. 2007)); Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of
Arancibia, 324 S.W.3d 544, 547 (Tex. 2010) (same); see also Subaru of Am., Inc. v.
David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002) (explaining that “the
United States Supreme Court has held that a new statute conferring or ousting
jurisdiction applies to existing suits because such laws typically do not affect
substantive rights” (citing Landgraf v. USI Film Prods., 511 U.S. 244, 274 (1994)).

   The general statement in section 6 is qualified by section 5, which states: “The
repeal of Section 22.225(d), Government Code, applies only to an interlocutory
order signed on or after the effective date of this Act. An interlocutory order signed
before the effective date of this Act is governed by the law applicable to the order
immediately before the effective date of this Act, and that law is continued in effect
for that purpose.” 2017 Tex. Gen. Laws at 293. Although “an interlocutory order
signed on or after the effective date of this Act” in the first sentence of section 5
could arguably refer to any interlocutory order signed on or after the effective date
of House Bill 1761, the context of that language reflects that section 5 applies to a
narrower subset of interlocutory orders.

    Former Government Code section 22.225(d), the provision referenced at the
outset of section 5, provided an exception to former section 22.225(b)’s
jurisdictional restriction by stating that “[a] petition for review is allowed . . . for an
appeal from an interlocutory order described by Section 51.014(a)(3), (6), or (11), or
(d), Civil Practice and Remedies Code.” Act of May 25, 2011, 82d Leg., R.S., ch.
203, § 3.02, 2011 Tex. Gen. Laws 757, 758. Under the former version of section
22.225, the Court therefore had jurisdiction over the subset of interlocutory appeals
described in former section 22.225(d) even if the party filing a petition for review
could not establish dissent or conflicts jurisdiction under former section 22.225(c).

    In the State’s view, the first sentence of section 5 means that the prior version of
section 22.225(d) continues to apply after September 1, 2017, but only with respect
to interlocutory orders that: (a) are described by Texas Civil Practice and Remedies
Code section 51.014(a)(3), (6), (11), or (d); and (b) were signed before September 1,
2017. Appeals of all other interlocutory orders are now governed by House Bill 1761,
which requires a showing of importance to the jurisprudence of the State to maintain
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jurisdiction that might previously have been premised on a different ground. See 2017
Tex. Gen. Laws at 292 (§ 1). Finally, although the phrase “[a]n interlocutory order”
in the second sentence of section 5 could arguably also refer to any interlocutory
order, it most naturally means the same thing it means in the first sentence of that
provision. See City of Lorena v. BMTP Holdings, L.P., 409 S.W.3d 634, 643 (Tex.
2013) (stating that the Court “provide[s] consistent meaning to the same word used
throughout a statute,” a rule of construction that should likewise govern a phrase in
a bill).

   This understanding of House Bill 1761 is inconsistent with footnote two of the
Court’s per curiam opinion in City of Krum, which stated that the 1985 version of the
Texas Government Code applied even though the appeal arose from an order within
the scope of Texas Civil Practice and Remedies Code section 51.014(a)(8) and this
Court decided the case after September 1, 2017. For that reason, and because the
parties have not briefed this issue, the State respectfully submits this amicus letter
brief and requests reconsideration of footnote two of the Court’s December 15, 2018,
opinion.

                                               Sincerely,

                                               /s/ Bill Davis

                                               Bill Davis
                                               Counsel for the State of Texas
                                               as Amicus Curiae


                       Certificate of Service
     On December 22, 2017, this amicus letter brief was served electronically on:
(1) Clark McCoy, lead counsel for petitioner, via cmccoy@wtmlaw.net; (2) Richard
Gladden, lead counsel for respondent, via richscot1@hotmail.com; and (3) Scott
Houston, lead counsel for amicus curiae Texas Municipal League, via
shouston@tml.org.

                                              /s/ Bill Davis
                                              Bill Davis



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