                                                                                        ACCEPTED
                                                                                    03-16-00018-CV
                                                                                          13934512
                                                                         THIRD COURT OF APPEALS
                                                                                    AUSTIN, TEXAS
                                                                              11/22/2016 2:49:16 PM
                                                                                  JEFFREY D. KYLE
                                                                                             CLERK
                           NO. 03-16-00018-CV

   In the Court of Appeals for the Third                           FILED IN
                                                            3rd COURT OF APPEALS

     Judicial District, Austin, Texas                            AUSTIN, TEXAS
                                                            11/22/2016 2:49:16 PM
                                                                JEFFREY D. KYLE
                                                                     Clerk

                             MARK WALTERS,
                                     Appellant,

                                     v.
                             BRAD LIVINGSTON,
            in his Official Capacity as Executive Director of the
                   Texas Department of Criminal Justice,
                                          Appellee.


              On Appeal from Cause No. D-1-GN-12-003493
                126th District Court, Travis County, Texas


  APPELLANT’S UNOPPOSED MOTION FOR LEAVE TO FILE POST-SUBMISSION
                          LETTER BRIEF


Andrew P. LeGrand
 State Bar No. 24070132
Carolyn S. Small*
 California Bar No. 304938
GIBSON, DUNN & CRUTCHER LLP
2100 McKinney Avenue, Suite 1100
Dallas, Texas 75201-6912
Telephone: 214.698.3100
Facsimile: 214.571.2900
*Admitted pro hac vice

COUNSEL FOR APPELLANT MARK WALTERS.
TO THE HONORABLE THIRD COURT OF APPEALS:
      Pursuant to Texas Rules of Appellate Procedure 10.1 and 38.7, the

Appellant, MARK WALTERS, respectfully requests that the Court grant him leave

to file the post-submission letter brief attached hereto as Exhibit A. In support of

this unopposed motion, Appellant alleges the following:

      1.     This case was submitted after the Court heard oral argument on

November 16, 2016.

      2.     The post-submission letter brief will aid the Court in reaching its

decision because it clarifies Appellant’s position on two new issues raised at oral

argument.

      3.     The proposed brief complies with the typeface requirements of T exas

Rule of Appellate Procedure 9.4(e) because it has been prepared in a conventional

typeface no smaller than 14-point for text and 12-point for footnotes.              The

document contains 365 words, excluding any parts exempted by Texas Rule of

Appellate Procedure 9.4(i)(1), and complies with Rule 9.4(i)(2)(B) regarding the

aggregate length of all briefs filed by a party in a civil case in a court of appeals.

      4.     Appellee Brad Livingston does not oppose Appellant’s request for a

30-day extension.




                                            1
      5.     All facts recited in this motion are within the personal knowledge of

the counsel signing this motion; therefore, no verification is necessary under Texas

Rule of Appellate Procedure 10.2.

                             PRAYER FOR RELIEF

      For the reasons set forth above, Appellant requests that this Court grant

Appellant’s Unopposed Motion For Leave to File Post-Submission Letter Brief.

Appellant requests all other relief to which he may be entitled.

DATE: November 22, 2016
                                       Respectfully submitted,



                                       By:      /s/ Andrew P. LeGrand
                                             Andrew P. LeGrand, SBN 24070132
                                             Carolyn S. Small*
                                             California State Bar No. 304938
                                             GIBSON, DUNN & CRUTCHER LLP
                                             2100 McKinney Avenue, Suite 1100
                                             Dallas, Texas 75201-6912
                                             Telephone: 214.698.3100
                                             Facsimile: 214.571.2900
                                             ALeGrand@gibsondunn.com
                                             CSmall@gibsondunn.com
                                             *Admitted pro hac vice
                           Counsel for Appellant Mark Walters




                                          2
                      CERTIFICATE OF CONFERENCE

      Pursuant to Texas Rule of Appellate Procedure 10.1(5), I certify that the

undersigned conferred with opposing counsel who indicated that his client does not

oppose this motion.



                                            /s/ Andrew P. LeGrand
                                          Andrew P. LeGrand
                         CERTIFICATE OF SERVICE

      As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I

certify that I caused a copy of the foregoing Appellant’s Motion to be served via

electronic mail upon on all other parties which are listed below on November 22,

2016 as follows:

      Leah O’Leary, Asst. Attorney General
      Office of the Attorney General of Texas
      P.O. Box 12548
      Austin, Texas 78711
      Telephone: 512.463.2080
      Email: Leah.OLeary@oag.texas.gov
            Attorney for Appellee
            Brad Livingston
                                                /s/ Andrew P. LeGrand
                                                   Andrew P. LeGrand
EXHIBIT A
                           NO. 03-16-00018-CV

   In the Court of Appeals for the Third
     Judicial District, Austin, Texas
                             MARK WALTERS,
                                     Appellant,

                                     v.
                             BRAD LIVINGSTON,
            in his Official Capacity as Executive Director of the
                   Texas Department of Criminal Justice,
                                          Appellee.


              On Appeal from Cause No. D-1-GN-12-003493
                126th District Court, Travis County, Texas


             APPELLANT’S POST-SUBMISSION LETTER BRIEF


Andrew P. LeGrand
 State Bar No. 24070132
Carolyn S. Small*
 California Bar No. 304938
GIBSON, DUNN & CRUTCHER LLP
2100 McKinney Avenue, Suite 1100
Dallas, Texas 75201-6912
Telephone: 214.698.3100
Facsimile: 214.571.2900
*Admitted pro hac vice

COUNSEL FOR APPELLANT MARK WALTERS.
TO THE HONORABLE THIRD COURT OF APPEALS:
         Appellant Mark Walters respectfully submits the following supplemental

brief in the above-captioned appeal to clarify two points raised during oral argument.

         First, the State argued the 60-day notice period in section 110.006(a) cannot

be reconciled with section 110.006(f), which applies when notice is provided

through the inmate grievance system. There is, however, no inconsistency. The

Texas Religious Freedom Restoration Act (“TRFRA”) provides two different

notice periods: one for inmates, and one for non-inmates. Non-inmates must wait

60 days before filing suit under section 110.006(a), whereas inmates must wait

until the grievance process is completed, which can take up to 180 days. That is

why the Legislature did not expressly say in section 110.006(e) that the

government must cure the substantial burden within 60 days of receiving notice.

Doing so would have created confusion about the proper application of TRFRA’s

already clear text: To preclude a lawsuit under section 110.006(e), the government

must cure before an injured person—inmate or non-inmate—“bring[s] an action.”

See Black’s Law Dictionary 231 (10th ed. 2014) (defining “bring an action” as to

“institute legal proceedings”). That is the rule Appellant is asking this Court to

adopt.

         Second, the Court asked both parties whether Mr. Walters’s lawsuit is moot

because the burden has been cured. As the State admitted, however, this case


                                            1
contains a claim for compensatory damages under § 110.005(a)(3). The State’s

decision to cure after Mr. Walters filed this lawsuit may impact the amount of

damages, but it does not deprive Mr. Walters of standing or render the case moot.

As we explained at oral argument, a claim for compensatory damages under

TRFRA is no different than any other claim for such damages: A plaintiff may

recover for pecuniary and non-pecuniary losses incurred as a result of the

defendant’s past harmful behavior, even if it has since ceased. See, e.g.,

Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W. 3d 438, 442-45 (Tex. 2004)

(awarding $500,000 in compensatory damages on plaintiff’s sexual harassment

claim even though the harassing conduct had ceased at the time she filed suit); see

also Daimler Chrysler Corp. v. Inman, 252 S.W. 3d 299, 304-05 (Tex. 2008)

(recognizing standing exists when the plaintiff has been injured in fact by the

defendant’s conduct).

DATE: November 22, 2016
                                       Respectfully submitted,



                                       By:      /s/ Andrew P. LeGrand
                                             Andrew P. LeGrand, SBN 24070132
                                             Carolyn S. Small*
                                             California State Bar No. 304938
                                             GIBSON, DUNN & CRUTCHER LLP
                                             2100 McKinney Avenue, Suite 1100
                                             Dallas, Texas 75201-6912

                                          2
              Telephone: 214.698.3100
              Facsimile: 214.571.2900
              ALeGrand@gibsondunn.com
              CSmall@gibsondunn.com
              *Admitted pro hac vice

Counsel for Appellant Mark Walters




             3
                         CERTIFICATE OF SERVICE

      As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I

certify that I caused a copy of the foregoing Appellant’s Motion to be served via

electronic mail upon on all other parties which are listed below on November 22,

2016 as follows:

      Leah O’Leary, Asst. Attorney General
      Office of the Attorney General of Texas
      P.O. Box 12548
      Austin, Texas 78711
      Telephone: 512.463.2080
      Email: Leah.OLeary@oag.texas.gov
            Attorney for Appellee
            Brad Livingston
                                                /s/ Andrew P. LeGrand
                                                   Andrew P. LeGrand
