                                                                             ACCEPTED
                                                                         03-16-00038-CV
                                                                               11224329
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                   6/20/2016 11:15:09 AM
                                                                       JEFFREY D. KYLE
                                                                                  CLERK
                     NO. 03-16-00038-CV

                 IN THE COURT OF APPEALS            FILED IN
             FOR THE THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS
                                                  AUSTIN, TEXAS
                     AT AUSTIN, TEXAS        6/20/2016 11:15:09 AM
                                                   JEFFREY D. KYLE
                      CITY OF AUSTIN,                   Clerk
                         Appellant,

                             v.

TRAVIS CENTRAL APPRAISAL DISTRICT; INDIVIDUALS WHO OWN C1
  (VACANT LAND) OR F1 (COMMERCIAL REAL) PROPERTY WITHIN
        TRAVIS COUNTY, TEXAS and THE STATE OF TEXAS,
                         Appellees.

         ON APPEAL FROM THE 126TH DISTRICT COURT
                 TRAVIS COUNTY, TEXAS
                CAUSE NO. D-1-GN-15-003492

SUR-REPLY OF APPELLEES TEXAS ASSOCIATION OF REALTORS,
    LOWE’S HOME CENTERS, LLC AND H E DRISKILL, LLC

                            JAMES E. POPP
                            State Bar No. 16139280
                            Jim.Popp@property-tax.com
                            MARK S. HUTCHESON
                            State Bar No. 00796805
                            Mark.Hutcheson@property-tax.com
                            DANIEL R. SMITH
                            State Bar No. 24013525
                            Daniel.Smith@property-tax.com

                            POPP HUTCHESON PLLC
                            1301 S. Mopac, Suite 430
                            Austin, Texas 78746
                            (512) 473-2661 - Telephone
                            (512) 479-8013 – Facsimile
                            COUNSEL FOR APPELLEES
                                  ARGUMENT

      Appellees Texas Association of Realtors, Lowe’s Home Centers, LLC, and

H E Driskill, LLC (collectively the “TAR Defendants”) hereby file this sur-reply to

address Part V of the reply filed by Appellant City of Austin (the “City”). (City’s

Reply at pp. 17-18).

      The City cites Neeley v. West Orange-Cove Consolidated Independent

School District for the general test for standing, i.e., that there is (a) a real

controversy between the parties, which (b) will be actually determined by the

judicial declaration sought. 176 S.W.3d 746, 773 (Tex. 2005); (City’s Reply at pp.

17-18). The City contends that the issue of standing to bring its constitutional

challenge is broader than the scope of the word “implement,” and that it must have

a remedy to challenge statutes that it deems “unconstitutional.”

      Citing the same general test for standing, Harris County Emergency Services

District No. 2 v. Harris County Appraisal District made clear that, in order for a

political subdivision to have standing, “the Texas Supreme Court has recognized

that the subdivision must be charged with implementing a statute it believes

violates the Texas Constitution.” 132 S.W.3d 456, 461 (Tex. App.—Houston [14th

Dist.] 2001, pet. denied). As with the appraisal district challenging the open-space

agricultural exemption in Nootsie and the municipality challenging the police

officer disciplinary hearing statute in Proctor, the school districts in Neeley


SUR-REPLY OF APPELLEES
CAUSE NO. 03-16-00038-CV                     1
implemented the school finance ad valorem tax rate setting and collection statutes

that they were challenging. Neeley is consistent with the holding in Harris County

Emergency Services District and does not support the City’s position.

      The City continues to bring the concept of “motive” into the analysis on

standing. It attempts to distinguish Harris County Emergency Services District by

characterizing the alleged injury in that case as “loss of revenue,” as opposed to a

requirement “to impose an unconstitutional tax.”1 The City’s motive in bringing

its constitutional challenge is irrelevant. The test is whether the City implements

the statutes that it challenges. Because it does not, the City has no standing to

challenge their constitutionality.

      For the foregoing reasons and the reasons stated in the TAR Defendants’

response, the TAR Defendants respectfully request that the Court affirm the trial

court’s dismissal of the City’s lawsuit.




1
  The City’s counsel argued a different motive to the trial court. At the summary judgment
hearing on October 7, 2015, counsel for the City stated:

      Our constitutionality argument has to do with the fact that the appraisals and the
      process in general on how they are done really deprives the City of revenue, so to
      speak. Because there is unequal and uniform taxation, the City is not getting at
      the additional revenue that is being lost by these provisions.

(2 RR 49:12-18).

SUR-REPLY OF APPELLEES
CAUSE NO. 03-16-00038-CV                          2
                           Respectfully Submitted,

                           POPP HUTCHESON PLLC
                           1301 S. Mopac, Suite 430
                           Austin, Texas 78746
                           (512) 473-2661 - Telephone
                           (512) 479-8013 – Facsimile



                           /s/ Daniel R. Smith
                           JAMES E. POPP
                           State Bar No. 16139280
                           Jim.Popp@property-tax.com
                           MARK S. HUTCHESON
                           State Bar No. 00796805
                           Mark.Hutcheson@property-tax.com
                           DANIEL R. SMITH
                           State Bar No. 24013525
                           Daniel.Smith@property-tax.com

                           ATTORNEYS FOR APPELLEES
                           TEXAS ASSOCIATION OF REALTORS,
                           LOWE’S HOME CENTERS, LLC, AND
                           H E DRISKILL, LLC




SUR-REPLY OF APPELLEES
CAUSE NO. 03-16-00038-CV        3
                     CERTIFICATE OF COMPLIANCE

      I certify that the foregoing document contains 4035 words, in compliance

with Rule 9,.4 of the Texas Rules of Appellate Procedure.


                                     /s/ Daniel R. Smith
                                     DANIEL R. SMITH




SUR-REPLY OF APPELLEES
CAUSE NO. 03-16-00038-CV                   4
                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of foregoing instrument has been

served, on this the 20th day of June, 2016 to the following:

Via E-Service

Andralee Cain Lloyd                      Cynthia A. Morales
Michael Siegel                           Attorney General’s Office
City of Austin – Law Department          Financial Litigation and Charitable Trusts
andralee.lloyd@austintxas.gov            Division
michael.siegel@austintexas.gov           cynthia.morales@texasattorneygeneral.gov
Attorneys for Appellant The City of      Attorney for Appellee State of Texas
Austin

G. Todd Stewart                          Lorri Michel
Tammy White-Chaffer                      Raymond Gray
Deborah S. Cartwright                    Shane Rogers
OLSON & OLSON, LLP                       MICHEL GRAY LLP
tstewart@olsonllp.com                    lorri@michelgray.com
tchaffer@olsonllp.com                    raymond@michelgray.com
dcartwright@olsonllp.com                 shane@michelgray.com
Attorneys for Appellee Travis County     Attorneys for Homeowners Intervenors
Appraisal District                       and Defendant Junkyard Dogs

Bill Aleshire                            Thomas Michel
Aleshire Law, PC                         Griffith, Jay & Michel, LLP
bill@aleshirelaw.com                     thomasm@lawgjm.com
Attorneys for Appellee/Cross-
Appellant Junk Yard Dogs


                                       /s/ Daniel R. Smith
                                       DANIEL R. SMITH




SUR-REPLY OF APPELLEES
CAUSE NO. 03-16-00038-CV                     5
