                                                                                             ACCEPTED
                                                                                         03-15-00294-CV
                                                                                                 5311959
                                                                              THIRD COURT OF APPEALS
                                                                                         AUSTIN, TEXAS
                                                                                    5/15/2015 8:24:02 PM
                                                                                       JEFFREY D. KYLE
                                                                                                  CLERK
                                 NO. 03-15-00294

                      IN THE COURT OF APPEALS         FILED IN
                                                3rd COURT OF APPEALS
                  FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS
                                                               5/15/2015 8:24:02 PM
                                                                 JEFFREY D. KYLE
                                                                       Clerk
               MANOR INDEPENDENT SCHOOL DISTRICT
                            Appellant

                                         v.

                                 DEYDRA STEANS
                                    Appellee


                  From the 200th Judicial District Court of
                          Travis County, Texas
            __________

 APPELLANT’S RESPONSE TO APPELLEE’S EMERGENCY MOTION
     FOR RECONSIDERATION OF TEMPORARY ORDER ON
       APPELLANT’S MOTION FOR EMERGENCY STAY
                 ______

      Appellant Manor Independent School District submits this response to

Appellee’s Emergency Motion for Reconsideration of Temporary Order on

Appellant’s Motion for Emergency Stay.

      Appellee filed its motion at 4:14 p.m. on Friday afternoon, seeking to force a

trial on the following Monday.

      A.    Manor ISD is not asserting a right under CPRC § 51.014.

      The automatic stay under section 51.014 of the Civil Practice and Remedies

Code is not the sole authority for the logical proposition of staying a trial during
the pendency of a lawsuit challenging the trial court’s jurisdiction. Appellant first

argues that this case is “well beyond the 180 days the law contains for a litigant to

maintain an automatic stay” and that, “[t]he Texas Legislature has made it clear

that only those appeals from interlocutory decisions that are made within 180 days

require an automatic stay of a proceeding.” Appellee’s Mtn., 2-3.

      Appellee’s argument misses the point. Appellant Manor ISD is not asserting

a right to an automatic stay under section 51.014. Although there are good reasons

for the delay of the hearing of Manor ISD’s plea to the jurisdiction, Manor ISD

recognizes that the statute sets forth an objective timeline. Instead, Manor ISD’s

request for stay is based on Tex. R. App. P. 29.3 and 29.5. A stay under these

provisions does not render the automatic stay a nullity—this is simply a separate

right to relief under the rules of procedure.

      B.     Manor ISD’s simply seeks to protect its right to relief from this
             Court.

      Under Rule 29.3, the Court “may make any temporary orders necessary to

preserve the parties' rights until disposition of the appeal.” Tex. R. App. P. 29.3.

Under Rule 29.5, the trial court is prohibited from impairing the effectiveness of

any relief sought or that may be granted on appeal:

      But the court must not make an order that:

      (a) is inconsistent with any appellate court temporary order; or
      (b) interferes with or impairs the jurisdiction of the appellate court or
      effectiveness of any relief sought or that may be granted on appeal.

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Tex. R. App. P. 29.5 (emphasis added). To be clear, the relief that Manor ISD

seeks from this Court is the benefit of enjoying its immunity from suit. In her

motion, Appellee fails to recognize the “impairs effectiveness” prong of Rule 29.5.

      The rules authorize this Court to stay proceedings at the trial court level until

it can determine whether a party “should be immune from the expense and

inconvenience of ... a trial” because the trial court does not have jurisdiction of his

person. Lacefield v. Elec. Fin. Group, Inc., 21 S.W.3d 799, 800 (Tex. App.—Waco

2000, no pet.)(involving the denial of a special appearance).

      “[T]he purpose for the immunity and the interlocutory appeal intended to

protect it would be thwarted by subjecting the official to a trial in the court below

before the appellate court has determined whether he should be immune from the

expense and inconvenience of such a trial.” Teran v. Valdez, 929 S.W.2d 37, 38

(Tex. App.—Corpus Christi 1996, no writ)(staying trial court proceedings pending

resolution of interlocutory appeal on question of official immunity).

      Lacefield and Teran illustrate this simple bit of logic: proceeding to a trial

on the merits during the pendency of an appeal challenging the trial court’s

subject-matter jurisdiction effectively destroys a governmental entity’s ability to

ever benefit from its immunity. A government entity’s subsequent victory at the

appellate level is a hollow one if it comes after a trial on the merits—the




                                          3
ballgame’s long been over by that point.           Win or lose on the merits, the

government has already lost its immunity from suit.

       Manor ISD moved this Court for a stay because (1) it was unable to obtain a

hearing at the trial court on its motion for stay or continuance prior to the date set

for trial, and (2) proceeding to trial in this case will nullify this Court’s ability to

grant effective relief on Manor ISD’s pending appeal regarding the trial court’s

jurisdiction over this case.

       C.     There are good reasons for the delay in challenging jurisdiction.

       As a threshold matter, Manor ISD will point out a deficiency in Appellee’s

motion. Appellee asserts that most of Manor ISD’s jurisdictional arguments were

“based on facts that were known early on by the district.” But, Appellee failed to

cite to any evidence to support this factual assertion. See Tex. R. App. P. 10.2

(facts not in the record require proof). The affidavit of Appellee’s counsel omits

this from its recitations.

       Appellee relies heavily on pointing out the chronology of this case. But, that

argument is a red herring. To begin, Manor ISD’s jurisdictional pleas are not

based solely on Appellee’s pleadings, but are based on Appellee’s failure to meet

her burden to produce evidence establishing the necessary jurisdictional facts. See

Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).

Necessarily then, it was necessary to engage in the discovery process. Manor ISD


                                           4
completed its discovery by the deadline (December 2013).                 Appellee then

requested to conduct depositions beyond the discovery period.             Subsequently,

beginning in January 2014, the parties engaged in protracted settlement

negotiations, with an agreement to put the discovery on hold, but to be taken

within 30 days of reaching impasse. That impasse occurred in June 2014. Manor

ISD then requested that the pending depositions take place within 30 days of that

impasse. After various requests for extension by Appellee, the depositions finally

occurred in November 2014, with corrections submitted by January 2015. Manor

ISD filed its motion by March 4, 2015.

      The fact that Appellee failed to complete her discovery by the deadline and

kept stringing the depositions along meant that Manor ISD would have been

prejudicing itself by filing an evidentiary plea to the jurisdiction at an earlier time.

      D.     Appellee is not in danger of losing any of her rights.

      If the Court lifts the stay, one party loses its rights (Manor ISD loses its

immunity from suit by virtue of having to go through a trial). If the Court does not

lift the stay, no one loses any rights. Appellee, if she prevails in this interlocutory

appeal, will still have the right to continue with her lawsuit against Manor ISD and

to seek whatever damages she may. Moreover, it would be a waste of judicial

resources for a court to go through a full trial on the merits when it may not have

jurisdiction in the first place. Appellee claims that pleas to the jurisdiction are


                                            5
regularly decided on cases that have gone to trial, but she does not claim that they

regularly proceed while an interlocutory appeal on immunity is pending. Indeed,

Appellee does not cite to any case in which a court has been asked to grant a stay,

but denied that request and instead allowed a trial to proceed when the

governmental entity’s immunity is being raised in an interlocutory appeal.

      E.     Summary

      Allowing this case to go to trial on Monday—before resolution of Manor

ISD’s jurisdictional challenge—would have the irreversible effect of stripping

Manor ISD of its immunity. Even if this Court ultimately dismisses this case,

Manor ISD will have had to participate in a trial in a court that had no jurisdiction.

This would nullify Manor ISD’s governmental immunity.

      F.     Prayer

      Manor ISD respectfully requests that Appellee’s Emergency Motion for

Reconsideration be denied.




                                          6
                                         Respectfully submitted,




                                         By:___________________________
                                           Jennifer A. Powell
                                           Texas Bar No. 00783554
                                           Abraham F. Barker
                                           Texas Bar No. 24073241
                                           4201 W. Parmer Lane, Suite A100
                                           Austin, Texas 78727
                                           512/476-9944
                                           512/472-2599 fax

                                            Attorneys for Manor Independent
                                            School District

                         CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the
foregoing document has been sent via court-generated electronic means and/or
email on May 15, 2015, to the following:

Gary L. Bledsoe
Alondra Johnson
Potter Bledsoe, LLP
316 West 12th Street, Suite 307
Austin, Texas 78701
Attorneys for Deydra Steans


                                     ______________________________
                                     Jennifer A. Powell




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