                                                                            ACCEPTED
                                                                        03-13-00101-CV
                                                                                6038669
                                                             THIRD COURT OF APPEALS
                                                                        AUSTIN, TEXAS
                                                                   7/13/2015 1:51:14 PM
                                                                      JEFFREY D. KYLE
                                                                                 CLERK
                   No. 03-13-00101-CV

                                                        FILED IN
                In the Court of Appeals          3rd COURT OF APPEALS
                                                     AUSTIN, TEXAS
             for the Third Judicial District     7/13/2015 1:51:14 PM
                                                   JEFFREY D. KYLE
                     Austin, Texas                       Clerk



                  RENT-A-CENTER, INC.,
                                   Appellant,
                            v.

 GLENN HEGAR, COMPTROLLER OF PUBLIC ACCOUNTS; AND
         KEN PAXTON, ATTORNEY GENERAL,
                                Appellees.


                  On Appeal from the
  250th Judicial District Court of Travis County, Texas


        APPELLEES’ RESPONSE IN OPPOSITION TO
         APPELLANT’S MOTION FOR REHEARING


KEN PAXTON                   SCOTT A. KELLER
Attorney General of Texas    Solicitor General
CHARLES E. ROY               MATTHEW H. FREDERICK
First Assistant Attorney     Deputy Solicitor General
 General                     State Bar No. 24040931
                             OFFICE OF THE ATTORNEY GENERAL
                             P.O. Box 12548 (MC 059)
                             Austin, Texas 78711-2548
                             Tel.: (512) 936-6407
                             Fax: (512) 474-2697
                             Matthew.Frederick
                              @texasattorneygeneral.gov
                             COUNSEL FOR APPELLEES
                           ISSUE PRESENTED

     Whether the Court of Appeals should decide, in the first instance, a

question that the district court did not reach, rather than remand and

allow the district court to make appropriate findings of fact and

conclusions of law.

                      ARGUMENT AND AUTHORITIES

     Rent-A-Center’s motion for rehearing should be denied because

remand is necessary for further proceedings. The motion for rehearing

rests on an incomplete statement of Texas Rule of Appellate Procedure

43.3, which provides:

     When reversing a trial court’s judgment, the court must
     render the judgment that the trial court should have
     rendered, except when:

        (a) a remand is necessary for further proceedings; or

        (b) the interests of justice require a remand for another
            trial.

TEX. R. APP. P. 43.3. Rent-A-Center argues that the Court should rule, in

the first instance, on the cost-of-goods-sold issue because it “must render

the judgment that the trial court should have rendered.” Mot. for Reh’g.

3. But Rent-A-Center omits the qualifying clause, “except when . . . a

remand is necessary for further proceedings.” TEX. R. APP. P. 43.3.
     In this case, remand is necessary because the trial court did not rule

on Rent-A-Center’s claim regarding its cost of goods sold. The district

court concluded, in light of its ruling on the retail-trade issue, that “the

issue regarding cost of goods sold is moot.” CR 114. Accordingly, the trial

court did not determine the cost of goods sold by Rent-A-Center in 2007,

nor did it determine whether that figure must be reduced to account for

depreciation claimed by Rent-A-Center.

     “[A] court of appeals can reverse the trial court’s judgment only

when the trial court is in error.” Chrismon v. Brown, 246 S.W.3d 102, 116

(Tex. App.—Houston [14th Dist.] 2007, no pet.). Because the trial court

entered no judgment on the cost-of-goods-sold issue, there is no error to

address. The trial court’s only error, as determined by this Court,

concerned the question whether Rent-A-Center was engaged primarily in

retail trade. Because the trial court’s ruling on that issue prevented it

from reaching the cost-of-goods-sold issue, the appropriate remedy is to

remand so that the trial court may address that question in the first

instance.




                                     2
                               PRAYER

     Appellees respectfully request that the Court deny Rent-A-Center’s

motion for rehearing and remand for further proceedings.

                               Respectfully submitted.

                               KEN PAXTON
                               Attorney General of Texas

                               CHARLES E. ROY
                               First Assistant Attorney General

                               SCOTT A. KELLER
                               Solicitor General

                               /s/ Matthew H. Frederick
                               MATTHEW H. FREDERICK
                               Deputy Solicitor General
                               State Bar No. 24040931

                               OFFICE OF THE ATTORNEY GENERAL
                               P.O. Box 12548 (MC 059)
                               Austin, Texas 78711-2548
                               Tel.: (512) 936-6407
                               Fax: (512) 474-2697
                               Matthew.Frederick
                                @texasattorneygeneral.gov

                               COUNSEL FOR APPELLEES




                                  3
                         CERTIFICATE OF SERVICE

     On July 13, 2015, this Appellees’ Motion for Rehearing was served

via CaseFileXpress on:

     Farley P. Katz
     Forrest M. Seger III
     STRASBURGER PRICE OPPENHEIMER BLEND
     300 Convent Street, Suite 900
     San Antonio, Texas 78204

     Daniel L. Butcher
     P. Michael Jung
     STRASBURGER PRICE
     901 Main Street, Suite 4300
     Dallas, Texas 75202

     Robert M. O’Boyle
     Clinton A. Rosenthal
     STRASBURGER & PRICE, LLP
     720 Brazos Street, Suite 700
     Austin, Texas 78701

     COUNSEL FOR APPELLANT

                                 /s/ Matthew H. Frederick
                                 MATTHEW H. FREDERICK




                                    4
                     CERTIFICATE OF COMPLIANCE

      In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this

brief contains 380 words, excluding the portions of the brief exempted by

Rule 9.4(i)(1).

                                  /s/ Matthew H. Frederick
                                  MATTHEW H. FREDERICK




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