                                                                                 ACCEPTED
                                                                             03-14-00197-CV
                                                                                     5275952
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                        5/13/2015 5:40:15 PM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK

                        NO. 03-14-00197-CV
            _________________________________________
                                                       RECEIVED IN
                   IN THE COURT OF APPEALS        3rd COURT OF APPEALS
                                                      AUSTIN, TEXAS
              FOR THE THIRD JUDICIAL DISTRICT5/13/2015 5:40:15 PM
                         AUSTIN, TEXAS              JEFFREY D. KYLE
                  _____________________________          Clerk

             GRAPHIC PACKAGING CORPORATION,
                                                    Appellant,

                                    v.

  GLENN HEGAR, COMPTROLLER OF PUBLIC ACCOUNTS OF THE
STATE OF TEXAS, AND KEN PAXTON, ATTORNEY GENERAL OF THE
                     STATE OF TEXAS,
                                                     Appellees.
__________________________________________________________________
          ON APPEAL FROM THE 353RD JUDICIAL DISTRICT COURT
                       TRAVIS COUNTY, TEXAS
_________________________________________________________________
     BRIEF OF AMICI CURIAE STATES OF OREGON, ALASKA,
   CALIFORNIA, COLORADO, HAWAII, MICHIGAN, MINNESOTA,
          MONTANA, NEW MEXICO, AND WASHINGTON
        IN SUPPORT OF TEXAS COMPTROLLER OF PUBLIC
          ACCOUNTS AND TEXAS ATTORNEY GENERAL
 ________________________________________________________________
                    ELLEN F. ROSENBLUM
                    Oregon Attorney General
                    ANNA JOYCE
                    Oregon Solicitor General
                    DARREN WEIRNICK
                    Senior Assistant Attorney General
                    darren.weirnick@doj.state.or.us
                    Oregon Dept. of Justice
                    1162 Court Street NE
                    Salem, OR 97301
                    Tele: (503) 947-4530
                    Fax: (503) 378-3784
                    [additional attorneys on next page]
CRAIG W. RICHARDS                     LORI SWANSON
Attorney General of Alaska            Attorney General of Minnesota
P.O. Box 110300                       102 State Capitol
Juneau, Alaska 99811                  75 Rev. Dr. Martin Luther King Jr. Blvd.
                                      St. Paul, MN 55155-1609
KAMALA D. HARRIS
Attorney General of California        TIM FOX
455 Golden Gate, Suite 11000          Montana Attorney General
San Francisco, CA 94102-7004          Office of the Attorney General
                                      215 N Sanders, Third Floor
CYNTHIA COFFMAN                       P.O. Box 201401
Colorado Attorney General             Helena, MT 59620-1401
Ralph L. Carr Colorado Judicial Ctr
1300 Broadway, 10th Floor             HECTOR H. BALDERAS
Denver, Colorado 80203                Attorney General of New Mexico
DOUGLAS S. CHIN                       P. O. Drawer 1508
Attorney General of Hawaii            Santa Fe, NM 87504-1508
425 Queen Street
Honolulu, Hawaii 96813                ROBERT W. FERGUSON
                                      Attorney General of Washington
BILL SCHUETTE                         1125 Washington Street SE
Michigan Attorney General             P.O. Box 40100
P. O. Box 30212                       Olympia, WA 98504-0100
Lansing, MI 48909

                                       COUNSEL FOR AMICI CURIAE
                                           TABLE OF CONTENTS

STATEMENT OF INTEREST OF AMICI CURIAE ...................................................... 1
INTRODUCTION ............................................................................................................ 1
ARGUMENT .................................................................................................................... 5
I.       THE COURT SHOULD REJECT GRAPHIC’S UNCRITICAL RELIANCE
         ON “COMPACT LAW” CASES. .................................................................................5
         A.       An agreement between sovereign states does not bind a future
                  legislature except under the Compact Clause or Contract Clause. ................6
         B.       Because the Compact Clause does not apply to the tax compact,
                  Graphic’s reliance on “compact law” cases decided under that clause
                  is misplaced...........................................................................................................7
         C.       Because the tax compact did not require or receive Congressional
                  consent, the compact trumps Texas Tax Code § 171.106 only if Texas
                  Tax Code § 171.106 unconstitutionally impairs the obligation of
                  contracts. ...............................................................................................................9
II.      THE TAX COMPACT PERMITS MEMBER STATES TO ADOPT AN
         EXCLUSIVE APPORTIONMENT FORMULA SUCH AS TEXAS TAX
         CODE § 171.106 ...........................................................................................................11
         A.       The states did not unmistakably intend to suspend their power to
                  adopt an exclusive apportionment formula. ....................................................12
         B.       The states’ course of performance confirms that each state intended to
                  retain sovereign authority to adopt an exclusive apportionment
                  formula without first withdrawing from the compact under Article
                  X.2........................................................................................................................17
         C.       Construing the tax compact as the amici suggest does not require the
                  court to insert “absent terms,” but rather to discern the states’ intent
                  using constructional principles under the Contract Clause. ..........................21
         D.       The threat of Congressional action in 1967 does not show that the
                  states intended Article III.1 to contractually bind subsequent state
                  legislatures. .........................................................................................................24
III.     TEXAS TAX CODE § 171.106 DOES NOT SUBSTANTIALLY IMPAIR
         ANY CONTRACTUAL RELATIONSHIP...............................................................26
CONCLUSION ............................................................................................................... 29




                                                                 i
                                       TABLE OF AUTHORITIES


                                                      Cases
Alabama v. North Carolina,
   560 U.S. 330, 352, 130 S.Ct. 2295 (2010) ................................................. 21, 22, 23

Allied Structural Steel Co. v. Spannaus,
   438 U.S. 234, 246, 98 S.Ct. 2716 (1978) ............................................................... 27

Atlantic Coast Line R. Co. v. Phillips,
   332 U.S. 168, 173, 67 S.Ct. 1584 (1947) ............................................................... 13

C.T. Hellmuth v. Washington Metro. Area Transit Auth.,
   414 F.Supp. 408, 409 (D. Md. 1976)...................................................................... 14

Central Power & Light Co. v. Pub. Util. Comm’n.,
   649 S.W.2d 287, 289 (Tex. 1983) ............................................................................ 6

Chandler v. Jorge A. Gutierrez, P.C.,
  906 S.W.2d 195, 203 n.10 (Tex. App.—Austin 1995, writ denied) ........................ 6

Cuyler v. Adams,
   449 U.S. 433, 440, 101 S.Ct. 703, 708 (1981) ......................................................... 7

Droemer v. Transit Mix Concrete of Gonzales, Inc.,
   457 S.W.2d 332, 335 (Tex. App.—Corpus Christi 1970, no writ) ........................ 18

Energy Reserves Group, Inc. v. Kansas Power & Light Co.,
   459 U.S. 400, 411, 103 S.Ct. 697 (1983) ......................................................... 26, 27

Firstar Corp. v. Comm’r,
   575 N.W.2d 835, 838 (Minn. 1998) ....................................................................... 19

General Expressways, Inc. v. Iowa Reciprocity Board,
   163 N.W.2d 413, 419-420 (Iowa 1968) ................................................................. 10


                                                         ii
                                           TABLE OF AUTHORITIES

General Motors Corp. v. Romein,
    503 U.S. 181, 189, 112 S.Ct. 1105 (1992) ........................................................ 27

Gillette Co. and Subsidiaries v. California Franchise Tax Board,
    Cal. S. Ct. S206587 ................................................................................................ 19

HealthNet, Inc. and Subsidiaries v. Department of Revenue,
    Or. Tax Court TC No. 5127 .................................................................................... 20

In re C.B., 188 Cal.App.4th 1024,
    116 Cal.Rptr.3d 294 (2010) .................................................................................... 10

In re Alexis O., 959 A.2d 176, 180 (N.H. 2008) ........................................................... 9

In re D.B., 431 A.2d 498 (Vt. 1981).............................................................................. 9

In re O.M., 565 A.2d 573 (D.C. Ct. App. 1989) ................................................... 10, 11

Ingram Micro. Inc. v. Mich. Dep’t. of Treasury,
    No. 11-000035-MT, slip op. (Mich. Ct. Cl. Dec. 19, 2014)................................... 20

International Business Machines Corp. v. Department of Treasury,
    852 N.W.2d 865 (Mich. 2014) ............................................................................... 20

Jefferson Branch Bank v. Skelly,
    66 U.S. (1 Black) 436, 446, 17 L.Ed. 173 (1862) ............................................ 12, 15

Kimberly-Clark Corp. and Subsidiaries v. Commissioner,
    Minn. Tax Ct. No. 8670-R...................................................................................... 19

McComb v. Wambaugh, 934 F.2d 474, 479 (3d Cir. 1991) .................................... 9, 10

MJR Corp. v. B&B Vending Co.,
    760 S.W.2d 4, 15 (Tex. App.—Dallas 1988, writ denied) ..................................... 13

                                                              iii
                                            TABLE OF AUTHORITIES

Tarrant Reg’l Water Dist. v. Herrmann,
   569 U.S. __, 133 S.Ct. 2120, 2130 n.8 (2013) .................................................... 8, 18

United States Steel Corp. v. Multistate Tax Commission,
    434 U.S. 452, 473, 98 S.Ct. 799 (1978) ....................................................... 8, 14, 25

United States Trust Co. of New York v. New Jersey,
    431 U.S. 1, 24 n.21, 97 S.Ct. 1505 (1977) ..................................... 13, 16, 22, 26, 27

United States v. Price,
    361 U.S. 304, 310-311, 80 S.Ct. 326 (1960) .......................................................... 24

United States v. Winstar Corp.,
    518 U.S. 839, 874-75, 116 S.Ct. 2432 (1996) .................................................. 12, 13


                                                           Statutes
Ala. Code § 40-27-1 (2011) ......................................................................................... 20
Ark. Code Ann. § 26-5-101 (1995) ............................................................................. 20
Ark. Code Ann. § 26-51-709 ....................................................................................... 20
Cal. Rev. & Tax Code § 25128(a) (1993) ................................................................... 19
Colo. Rev. Stat. § 24-60-1301 ..................................................................................... 20
Colo. Rev. Stat. § 39-22-303.5(2) (2009) .................................................................... 20
D.C. Code § 47-411 (2013) ......................................................................................... 20
Fla. Stat. § 214.71 ........................................................................................................ 19
Fla. Stat. § 220.15(4) ................................................................................................... 19
Idaho Code § 63-3027(i)(1) ......................................................................................... 19
Mich. Comp. Laws § 208.1301 ................................................................................... 20
N.D. Cent. Code § 57-59-01, as amended by S.B. 2292 (2015) ................................. 20
Or. Rev. Stat. § 314.606 .............................................................................................. 20
Or. Rev. Stat. § 314.606 (1993) ................................................................................... 20
Or. Rev. Stat. § 314.650(1) (1993) .............................................................................. 20
Or. Rev. Stat. § 305.653 (2013) ............................................................................... 20
                                                                iv
                                            TABLE OF AUTHORITIES

Texas Tax Code § 141.001 ............................................................................................ 1
Texas Tax Code § 171.106 .............................................. 1, 2, 3, 4, 9, 11, 12, 26, 27, 29


                                                    Other Authorities
1A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory
     Construction § 32:8 (7th ed. 2009)...................................................................... 7
J. Murray, Corbin on Contracts § 45.6 at 92 (rev. ed. 2007) ...................................... 14
Restatement (Second) of Contracts § 202, comment g (1981) .................................... 17


                                                             Laws
1971 Fla. Laws ch. 71-984 § 1 (eff. Jan. 1, 1972) ....................................................... 19
1987 Minn. Laws 1039, 1098-1120 ............................................................................ 19
1993 Cal. Stat. 946 (S.B. 1176) ................................................................................... 19
1993 Or. Laws 726, § 20 (H.B. 2058) ......................................................................... 20
1994 Idaho Sess. Laws 301 (H.B. 897) ....................................................................... 19
1995 Ark. Acts 682 ...................................................................................................... 20
2008 Colo. Sess. Laws 256 (H.B. 08-1380) ................................................................ 20
2010 Utah Sess. Laws 155, § 1 (S.B. 165) .................................................................. 20
2011 Ala. Acts 2011-616 (H.B. 434) .......................................................................... 20
2012 Cal. Stat. 37 (S.B. 1215) ..................................................................................... 19
2013 D.C. Stat. 20-61, § 7342 ..................................................................................... 20
2013 Minn. Laws 143 ............................................................................................... 19
2013 Or. Laws 407 (S.B. 307) ..................................................................................... 20
2014 Mich. Pub. Acts 282 ........................................................................................... 20


                                              Constitutional Provisions
Alaska Const. art. IX, § 1 ............................................................................................ 15
Ark. Const. art. 16, § 7 ................................................................................................ 15
Cal. Const. art. XIII, § 31 ............................................................................................ 15
Haw. Const. art. VII, § 1.............................................................................................. 15
Ill. Const. art. IX, § 1 ................................................................................................... 15

                                                                 v
                                            TABLE OF AUTHORITIES

Mich. Const. art. IX, § 2 .............................................................................................. 15
Minn. Const. art. X, § 1 ............................................................................................... 15
Mo. Const. art. X, § 2 .................................................................................................. 15
Mont. Const. art. VIII, § 2 ........................................................................................... 15
N.D. Const. art. X, § 2 ................................................................................................. 15
S.D. Const. art. XI, § 3 ................................................................................................ 15
Tex. Const. art I, § 16 .................................................................................................... 6
Tex. Const. art VIII, § 4............................................................................................... 15
U.S. Constitution, Article I, § 10, clause 1 .................................................................... 6
U.S. Constitution, Article I, § 10, clause 3 .................................................................... 6
U.S. Constitution, Article VI, § 2 .................................................................................. 7
Wash. Const. art. VII, § 1 ............................................................................................ 15
Wyo. Const. art. 15, § 14 ............................................................................................. 15


                                                         Legislation
H. R. 11798, 89th Cong., 1st Sess. (1965) .................................................................. 25
H.R. 1538, 92d Cong., 1st Sess. (1971) ...................................................................... 25
H.R. 1538, 92d Cong., 2d Sess. (1972) ....................................................................... 25
H.R. 16491, 89th Cong., 2d Sess. (1966) .................................................................... 25
H.R. 2158, 90th Cong., 1st Sess. (1967) ..................................................................... 25
H.R. 2179, 91st Cong., 1st Sess. (1969) ...................................................................... 25
H.R. 7906, 91st Cong., 1st Sess. (1969) ...................................................................... 25
H.R. 9, 94th Cong., 1st Sess. (1975) ........................................................................... 25
H.R. 977, 93d Cong., 1st Sess. (1973) ........................................................................ 25
S. 1210, 92d Cong., 1st Sess. (1971) ........................................................................... 25
S. 1245, 93d Cong., 1st Sess. (1973) ........................................................................... 25
S. 1883, 92d Cong., 1st Sess. (1971) ........................................................................... 25
S. 2080, 94th Cong., 1st Sess. (1975) .......................................................................... 25
S. 2092, 93d Cong., 1st Sess. (1973) ........................................................................... 25
S. 282, 93d Cong., 1st Sess. (1973) ............................................................................. 25
S. 317, 92d Cong., 1st Sess. (1971) ............................................................................. 25
                                                                vi
                                        TABLE OF AUTHORITIES

S. 3333, 92d Cong., 2d Sess. (1972) ........................................................................... 25
S. 4080, 92d Cong., 2d Sess. (1972) ........................................................................... 25
S. 916, 91st Cong., 1st Sess. (1969) ............................................................................ 25




                                                          vii
                 STATEMENT OF INTEREST OF AMICI CURIAE

         This case concerns, in part, the proper interpretation of the Multistate Tax

Compact (the “tax compact”), which Texas joined by adopting Texas Tax Code

§ 141.001. The amici states include the following members and former members

of the tax compact: Oregon, Alaska, California, Colorado, Hawaii, Michigan,

Minnesota, Montana, New Mexico, and Washington.

         As members and former members of the tax compact, the amici states are

interested in assisting the court in understanding the party states’ interpretation of

the compact. In amici’s view, correct construction of the tax compact will help

preserve each state’s sovereign authority over its tax policies, consistent with the

members’ intent.

         No party or counsel for a party in this case authored this brief, in whole or in

part, or made a monetary contribution intended to fund the preparation or

submission of the brief. No person or entity, other than the State of Oregon, made

a monetary contribution intended to fund the preparation or submission of the

brief.

                                   INTRODUCTION

         Graphic Packaging, Inc. (“Graphic”) argues that Article III.1 of the tax

compact takes priority over an apportionment formula in Texas Tax Code

§ 171.106. Article III.1 provides that a taxpayer subject to a party state’s income


                                             1
tax “may elect to apportion and allocate his income in the manner provided by the

laws of such state . . . without reference to this compact, or may elect to apportion

and allocate in accordance with Article IV.” Article IV.9 provides for

apportionment of net income based on a formula that gives equal weight to

property, payroll, and sales. By contrast, Texas Tax Code § 171.106(a) requires a

multistate taxpayer such as Graphic to apportion its taxable margin based solely on

gross receipts “[e]xcept as provided by this section.” Nothing in Texas Tax Code

§ 171.106 permits use of the tax compact’s three-factor formula.

      The amici states agree with the Comptroller of Public Accounts and

Attorney General for the State of Texas that (1) the tax compact does not waive

any member state’s right to adopt an “exclusive” apportionment formula—that is, a

formula that automatically applies to multistate taxpayers and precludes those

taxpayers from invoking the formula in Article IV.9 of the tax compact—and that

(2) any ambiguity on that point must be resolved in favor of each state’s

reservation of its sovereign tax power. The amici stress the following points.

      Graphic argues that the tax compact takes priority over Texas Tax Code

§ 171.106 based on a body of so-called “compact law” cases that span an

assortment of interstate agreements in diverse areas. But most of Graphic’s

“compact law” cases address compacts that were approved by Congress.

Compacts that Congress approves become federal law, to which inconsistent state


                                          2
laws must yield. As Graphic admits, the tax compact neither received nor required

Congressional approval. Thus, the Compact Clause does not apply to the tax

compact, and the compact must be construed as state law.

      Because the Compact Clause does not apply, the tax compact would have

precluded Texas from enacting a mandatory apportionment formula such as Texas

Tax Code § 171.106 only if (1) the legislature, in joining the compact,

unmistakably intended to bind future legislatures by contract and (2) Texas Tax

Code § 171.106 unconstitutionally impaired existing contractual obligations.

Neither conclusion applies.

      First, the tax compact does not address, much less address in unmistakable

terms, what happens when another state law—such as Texas Tax Code

§ 171.106—mandates use of an exclusive apportionment formula. Moreover,

nothing in the tax compact purports to trump longstanding prohibitions in many

member states’ constitutions on suspension of their taxing power—prohibitions

that are part of the compact’s terms. The states’ intent should be construed in

harmony with their constitutions. Furthermore, nothing in the tax compact

unmistakably grants taxpayers a contractual right to enforce Article III.1 as a third-

party beneficiary.

      Consistent with the intent of each state to preserve its sovereign tax power,

the member states’ longstanding course of performance further demonstrates that


                                          3
the states have interpreted the tax compact to permit a member state to later adopt

an exclusive apportionment formula. Numerous member states have adopted laws

deleting or superseding Article III.1 or IV. No member state ever has objected.

Indeed, as early as 1972 the states’ representatives to the Multistate Tax

Commission unanimously ratified the Florida legislature’s elimination of Articles

III and IV.

      In short, the states did not intend to preclude their legislatures from opting

out of Article III.1. Nor did they intend to grant any taxpayer a contractual right to

invoke Article III.1 when a state has adopted legislation superseding that provision.

      But even if Graphic had a contractual right to the Article III.1 election,

Texas Tax Code § 171.106 would not unconstitutionally impair any contractual

obligation because no substantial impairment occurred. Here, Texas Tax Code

§ 171.106 did not substantially impair a contractual relationship because Graphic

had no legitimate expectation that any rights under Article III.1 would exist after

2008, when Texas’ revised franchise tax went into effect. As Graphic appears to

concede, each state could withdraw from the tax compact at any time without

notice. Moreover, the compact’s provisions were expressly severable. Thus,

Graphic could not legitimately have expected to invoke any right under Article

III.1 if Texas had formally withdrawn from the tax compact in 2008 and then

reenacted the compact without Articles III.1 and IV. Because Texas’ revised


                                          4
franchise tax had the same effect, it did not substantially impair any contractual

obligation.

      The amici states ask the court to reject Graphic’s reading of the tax compact.

Graphic’s interpretation is inconsistent with the party states’ longstanding

understanding of their own agreement. The states entered the tax compact to

preserve each state’s sovereign power to manage its own fiscal affairs, not to

suspend or surrender it.

                                   ARGUMENT

I.    THE COURT SHOULD REJECT GRAPHIC’S UNCRITICAL
      RELIANCE ON “COMPACT LAW” CASES.

      Graphic asserts that an interstate compact must prevail over subsequent state

law under a “body of case law referred to as compact law, because an interstate

compact represents both a contract and a binding reciprocal statute. . . .” Graphic

Br. at 32. But there is no common law of interstate compacts. Graphic’s “compact

law” cases do not hold that an interstate compact necessarily precludes later state

laws that conflict with compact provisions merely because the compact is an

agreement. What authority they provide for the priority of interstate compacts

derives solely from the Compact Clause or from federal and state constitutional

prohibitions on the impairment of the obligation of contracts.

      As Graphic admits, however, the Compact Clause does not apply to the tax

compact. Thus, Graphic’s “compact law” cases matter only to the extent they

                                          5
analyze whether a state law that is inconsistent with an earlier interstate agreement

unconstitutionally impairs the obligation of contracts.

       A.      An agreement between sovereign states does not bind a future
               legislature except under the Compact Clause or Contract Clause.

       The fact that sovereign governments enter into agreements with one another

by adopting statutes does not, by itself, curtail the sovereignty of future

legislatures. “A legislature cannot prevent future legislatures from amending or

repealing a statute.” Central Power & Light Co. v. Pub. Util. Comm’n., 649

S.W.2d 287, 289 (Tex. 1983). Only federal or state constitutional provisions or

federal law may limit a state legislature’s power to amend or repeal an earlier

statute.

       By citing haphazardly from cases involving sundry interstate compacts,

Graphic glosses over the only sources of law that may require interstate compacts

to take priority over later enacted state laws: the Compact Clause1 or the federal

and state Contract Clauses.2 Ascertaining whether a state law represents an

interstate agreement is merely a predicate for determining whether there is a


       1
             Under the Compact Clause, U.S. Constitution, Article I, § 10, clause 3, “No State shall,
without the Consent of Congress . . . enter into any Agreement or Compact with another
State . . . .”
         2
             Under the Contract Clause, U.S. Constitution, Article I, § 10, clause 1, “No State
shall . . . pass any . . . Law impairing the Obligation of Contracts.” See also Tex. Const. art. I, § 16
(“No . . . law impairing the obligation of contracts, shall be made.”). Because the federal and
Texas constitutional provisions are “interpreted essentially identically,” we focus on the federal
clause. Chandler v. Jorge A. Gutierrez, P.C., 906 S.W.2d 195, 203 n.10 (Tex. App.—Austin 1995,
writ denied).

                                                  6
“Compact” under the Compact Clause or an unconstitutional impairment of the

“Obligation of Contracts” under federal and state Contract Clauses. If Congress

consents to an interstate compact under the Compact Clause, its consent transforms

the compact into federal law, and the compact thus trumps conflicting state law

under the Supremacy Clause. But in the case of the tax compact, or any other

non-Congressionally-approved compact, later state law may trump provisions in

the compact, so long as the later state law does not unconstitutionally impair the

obligation of contracts. See, e.g., 1A Norman J. Singer & J.D. Shambie Singer,

Sutherland Statutes and Statutory Construction § 32:8 (7th ed. 2009) (describing

state’s authority to abrogate non-Congressionally-approved compact as limited by

“the constitutional prohibition against impairing the obligation of contract”).

      B.     Because the Compact Clause does not apply to the tax compact,
             Graphic’s reliance on “compact law” cases decided under that
             clause is misplaced.

      Compacts that receive Congressional consent under the Compact Clause

constitute federal law. As a result, a state law that conflicts with a

Congressionally-approved compact must yield to that compact under the

Supremacy Clause, U.S. Constitution, Article VI, § 2. See Cuyler v. Adams, 449

U.S. 433, 440, 101 S.Ct. 703, 708 (1981) (holding that “[t]he consent of Congress

transforms the States’ agreement into federal law under the Compact Clause”).

Graphic thus misstates the law when it claims that “Congressional consent plays no


                                           7
role” in explaining why an interstate compact may trump a later state law that

conflicts with that compact. Graphic Br. at 34 (emphasis added). If Congress has

approved an interstate compact, the Supremacy Clause makes that

Congressionally-approved compact binding on the states, and does so regardless of

future state legislation—no “additional” reasons need be considered. Graphic Br.

at 34; see Tarrant Reg’l Water Dist. v. Herrmann, 569 U.S. __, 133 S.Ct. 2120,

2130 n.8 (2013) (“The Supremacy Clause…ensures that a congressionally

approved compact, as a federal law, preempts any state law that conflicts with the

Compact”).

      Because the lion’s share of “compact law” cases that Graphic cites address

Congressionally-approved compacts, Graphic’s uncritical reliance on those

cases—for its assertion that the tax compact automatically takes precedence over

later state laws—is unwarranted: As Graphic acknowledges, the Compact Clause

does not apply to the tax compact because Congressional consent was neither

required nor given. See Graphic Br. at 38; United States Steel Corp. v. Multistate

Tax Commission, 434 U.S. 452, 473, 98 S.Ct. 799 (1978) (holding that tax compact

did not “enhance[] state power quoad the National Government” and therefore did

not require Congressional consent).




                                         8
      As a non-Congressionally-approved compact, the tax compact “must be

construed as state law,” not federal. McComb v. Wambaugh, 934 F.2d 474, 479

(3d Cir. 1991); In re Alexis O., 959 A.2d 176, 180 (N.H. 2008). While cases

construing compacts covered by the Compact Clause may be persuasive in other

respects, e.g., in applying principles of contractual interpretation, they do not

establish that the tax compact automatically overrides subsequent state law.

      C.     Because the tax compact did not require or receive Congressional
             consent, the compact trumps Texas Tax Code § 171.106 only if
             Texas Tax Code § 171.106 unconstitutionally impairs the
             obligation of contracts.

      A non-Congressionally-approved interstate compact may take precedence

over a subsequent state statute, but only if that statute unconstitutionally impairs

the obligation of contracts. Again, Graphic errs by viewing so-called “compact

law” cases as a distinct source of authority. See Graphic Br. at 45-6 (concluding

that “fundamental principles of compact law” require application of Article III.1

and only later arguing that Texas Tax Code § 171.106 “also” violates Contract

Clause).

      Of the few “compact law” cases Graphic cites that involve

non-Congressionally-approved compacts, none holds that the compact at issue

overrode subsequent state law absent an unconstitutional impairment of contractual

obligations. The court in In re D.B., 431 A.2d 498 (Vt. 1981) merely held that the

Interstate Compact on Juveniles was valid notwithstanding lack of Congressional

                                           9
consent. In General Expressways, Inc. v. Iowa Reciprocity Board, 163 N.W.2d

413, 419-420 (Iowa 1968), the court found that the compact at issue and a

subsequent statute were consistent. In each case, the court had no need to decide

whether a later statute substantially impaired contractual relationships.

      In both McComb, 934 F.2d 474, and In re C.B., 188 Cal.App.4th 1024, 116

Cal.Rptr.3d 294 (2010), the courts struck down a state regulation that exceeded the

scope of the statutory compact it was meant to interpret—a familiar principle of

administrative law. The courts then held that the statutory compact did not apply

to the factual situation presented. The courts thus had no need to address whether

the compact took precedence over later state statutes, and broad statements to that

effect in McComb are dicta.

      Finally, Graphic’s reliance on In re O.M., 565 A.2d 573 (D.C. Ct. App.

1989), which held that the District of Columbia properly ratified and participated

in the Interstate Compact on Juveniles following Congressional authorization, is

erroneous in two critical respects. First, the D.C. Court of Appeals observed that

Congress itself “expressly commanded” the D.C. courts “to enforce the Compact

according to its terms.” 565 A.2d at 579. No Congressional mandate to the Texas

Court of Appeals is at issue in Graphic’s appeal.

      Second, as the court in In re O.M. noted,

      [t]his case does not present . . . the issue of whether an interstate
      compact which is not federal law may or must be enforced by the

                                          10
      courts. The District is not asserting, through an unequivocal,
      unanimous, and consistent argument by its highest political
      authorities, that the Compact should not be enforced in this case.

Id. By contrast, here the Comptroller maintains, and the amici states agree, that

Article III.1 and Article IV of the tax compact are not enforceable as binding

contractual terms; instead, they are provisions from which party states are free to

subsequently deviate without withdrawing from the entire compact.

      In sum, Graphic’s snippets from a medley of “compact law” cases fail to

establish that Article III.1 of the tax compact takes priority over Texas Tax Code

§ 171.106. A non-Congressionally-approved compact—such as the tax compact—

does not automatically trump later-enacted state statutes. Instead, it does so only if

the subsequent state statute violates constitutional prohibitions on laws impairing

the obligation of contracts.

II.   THE TAX COMPACT PERMITS MEMBER STATES TO ADOPT AN
      EXCLUSIVE APPORTIONMENT FORMULA SUCH AS TEXAS
      TAX CODE § 171.106

      Framing Graphic’s primary contention solely within the boundaries of the

Contract Clause matters for two reasons. First, because of the severe consequences

that may ensue when an earlier legislature binds future legislatures under the

Contract Clause, a future legislature is constrained only when the earlier

legislature’s contractual intent to do so is unmistakable. Here, there is no

unmistakable intent that Texas and other party states intended either (1) to bargain


                                          11
away their sovereign power to enact an exclusive apportionment formula or (2) to

grant taxpayers contractual rights under Article III.1 of the tax compact.

      Second, even if the states unmistakably intended to vest taxpayers with

contractual rights under Article III.1, the Contract Clause would not automatically

be violated whenever a party state adopted a mandatory apportionment formula.

Rather, courts must apply a multistep analysis: they first must determine whether

any impairment is substantial. If an impairment is substantial, courts next must

assess whether that impairment is reasonable and necessary for an important public

purpose; if it is, no constitutional violation has occurred. Here, Texas Tax Code

§ 171.106 did not substantially impair any contractual relationship and therefore

could not violate the Contract Clause.

      A.     The states did not unmistakably intend to suspend their power to
             adopt an exclusive apportionment formula.

      Under the unmistakability doctrine, the state’s sovereign power may not “‘be

held . . . to be surrendered, unless such surrender has been expressed in terms too

plain to be mistaken.’” United States v. Winstar Corp., 518 U.S. 839, 874-75, 116

S.Ct. 2432 (1996) (quoting Jefferson Branch Bank v. Skelly, 66 U.S. (1 Black) 436,

446, 17 L.Ed. 173 (1862)). The unmistakability doctrine has “served the dual

purposes of limiting contractual incursions on a State’s sovereign powers and of

avoiding difficult constitutional questions about the extent of state authority to

limit the subsequent exercise of legislative power.” Winstar, 518 U.S. at 875. As

                                          12
a result, contracts restricting a state’s future exercise of its taxing power “generally

have not received a sympathetic construction.” United States Trust Co. of New

York v. New Jersey, 431 U.S. 1, 24 n.21, 97 S.Ct. 1505 (1977). Instead, the

“legislature is not to be presumed to have relinquished its power of taxation

beyond the narrowest rational reading . . . .” Atlantic Coast Line R. Co. v. Phillips,

332 U.S. 168, 173, 67 S.Ct. 1584 (1947).

      In the absence of express and unmistakable language waiving the exercise of

the sovereign tax power, each state must be presumed to have reserved that power.

See Winstar, 518 U.S. at 878 (“unmistakability [is] needed for waiver, not

reservation” of sovereign power). The tax compact contains no such unmistakable

language. Nothing in the tax compact expressly prohibits the states from adopting

an exclusive apportionment formula that overrides the formula in Article IV.9.

Nor does the tax compact expressly prevent states from limiting the conditions in

which Articles III.1 and IV may apply, from amending Articles III.1 and IV, or

from deleting them altogether.

      Neither does the tax compact expressly and unmistakably make taxpayers

contractual, third-party beneficiaries of Article III.1. Even under general contract-

law principles, “all presumptions [are] invoked against liability to the third party.”

MJR Corp. v. B&B Vending Co., 760 S.W.2d 4, 15 (Tex. App.—Dallas 1988, writ

denied). In the case of contracts with governments, those presumptions are even


                                           13
stronger. See, e.g., J. Murray, Corbin on Contracts § 45.6 at 92 (rev. ed. 2007)

(“The distinction between an intention to benefit a third party and an intention that

the third party should have the right to enforce that intention is emphasized where

the promisee is a governmental entity.”).

       The historical background likewise permits no inference that the states

unmistakably considered Articles III.1 and IV as contractually binding terms, as

opposed to ordinary statutory provisions promoting uniform laws. The tax

compact’s history shows that the states entered into the compact to preserve each

state’s sovereign power to determine its own substantive tax policies, not to

suspend it by contract. That intent conflicts with Graphic’s assertion that “[u]pon

entering into an interstate compact, a state effectively surrenders a portion of its

sovereignty . . . .” Graphic Br. at 33 (quoting C.T. Hellmuth v. Washington Metro.

Area Transit Auth., 414 F.Supp. 408, 409 (D. Md. 1976)). The states did not

intend to protect their tax powers from federal interference only to permit

contractual interference by other states and taxpayers. Rather, they intended to

retain unfettered control over their own tax policies.3


       3
           As the State of Texas observes, Articles III and IV of the tax compact are merely
“advisory.” Brief of Appellees at 42-55. The Multistate Tax Commission long ago emphasized to
the United States Supreme Court in Multistate Tax Commission that the tax compact is an
“advisory mechanism,” with each member “retain[ing] exclusive control over any and all
legislation and administrative actions. . . .” See Brief of Multistate Tax Commission in Multistate
Tax Commission, United States Supreme Court No. 76-635, 1977 WL 189138 at 12; Brief of
Appellees at 54-55; see also Multistate Tax Comm’n, 434 U.S. at 457.

                                               14
       In fact, as the State of Texas observes, many members of the tax compact

were prohibited by their own state constitutions from contractually binding

themselves to substantive tax policies. Brief of Appellees at 61-62. The

constitutions of fourteen former and current member states, including Texas,

provide that the state may not suspend or surrender the power of taxation by

contract.4 A state’s sovereign power of taxation encompasses not merely whether

to tax, but also how to tax, including the method of computing taxes using an

apportionment formula.

       Accordingly, any interpretation that views the states as collectively

promising that their legislatures would be powerless to modify or eliminate Article

III.1 or Article IV without repealing the compact altogether inserts into the tax

compact an obligation that would be illusory: any such promise would exceed the

state constitutional authority possessed by a significant number of compact

members. See Skelly, 66 U.S. at 448 (noting that “state legislatures, unless

prohibited in terms by state constitutions, may contract by legislation to release the

exercise of taxing” corporations) (emphasis added). Reading into the tax compact

a contractual obligation not to modify or eliminate Article III.1 or IV would ignore

       4
           Tex. Const. art VIII, § 4 (“The power to tax corporations . . . shall not be surrendered or
suspended by act of the Legislature, by any contract or grant to which the State shall be a party.”);
see also Alaska Const. art. IX, § 1; Ark. Const. art. 16, § 7; Cal. Const. art. XIII, § 31; Haw. Const.
art. VII, § 1; Ill. Const. art. IX, § 1; Mich. Const. art. IX, § 2; Minn. Const. art. X, § 1; Mo. Const.
art. X, § 2; Mont. Const. art. VIII, § 2; N.D. Const. art. X, § 2; S.D. Const. art. XI, § 3; Wash.
Const. art. VII, § 1; Wyo. Const. art. 15, § 14.

                                                 15
that “[t]he obligations of a contract long have been regarded as including not only

the express terms but also the contemporaneous state law pertaining to

interpretation and enforcement.” United States Trust Co. of New York v. New

Jersey, 431 U.S. 1, 19 n.17, 97 S.Ct. 1505 (1977) (internal citations and quotations

omitted); see also General Motors Corp. v. Romein, 503 U.S. 181, 189, 112 S.Ct.

1105 (1992) (“The obligation of a contract consists in its binding force on the party

who makes it. This depends on the laws in existence when it is made. . . .”)

(internal quotation and citation omitted).

      Because the preexisting prohibitions in many party states’ constitutions must

be considered part of the tax compact “as if they were expressly referred to or

incorporated in its terms,” the states should be presumed to have enacted

Articles III.1 and IV of the tax compact merely as statutory law that subsequent

legislatures were free to revisit, not as binding contractual terms. United States

Trust, 431 U.S. at 19 n.17. Limiting a later legislature’s freedom to exercise the

tax power as long as the tax compact is in effect would suspend the legislature’s

tax power in violation of the constitutions of many party states.

      Graphic notes that Article X.2 of the tax compact permits states to withdraw

from the tax compact at any time without notice. Graphic then argues that Article

X.2 shows that each state intended to contractually limit its future exercise of the

tax power unless and until it withdrew from the compact as a whole. Graphic is


                                             16
mistaken. The withdrawal provision neither expressly nor implicitly prohibits the

states from otherwise deleting or amending Articles III.1 or IV, either upon

adoption or subsequently.

         Moreover, Article XII of the tax compact provides that “[t]he provisions of

this compact shall be severable. . . .” Nothing in the tax compact provides that

Articles III.1 and IV are inseparable parts of the compact, nor does anything

prevent the compact members from omitting or eliminating one or more of those

provisions while continuing to participate in the tax compact in other respects.

         The unmistakability doctrine, the lack of express restrictions in the tax

compact on the states’ power to delete or amend Articles III.1 and IV, the

prohibition in many states’ constitutions on contractual suspensions of the tax

power, and the severability provision indicate that the states intended Articles III.1

and IV to be subject to revision by future legislatures, not as binding contractual

terms.

         B.    The states’ course of performance confirms that each state
               intended to retain sovereign authority to adopt an exclusive
               apportionment formula without first withdrawing from the
               compact under Article X.2.

         “The parties to an agreement know best what they meant, and their action

under it is often the strongest evidence of the meaning.” Restatement (Second) of

Contracts § 202, comment g (1981). At worst, the unmistakability doctrine, the

states’ constitutional prohibitions on contractual suspensions of the tax power, and

                                            17
the tax compact’s silence regarding the states’ reserved powers to amend or

eliminate Articles III.1 and IV would reflect an ambiguity in the construction of

the compact. As a result, the parties’ “course of performance . . . is highly

significant evidence of [their] understanding of the compact’s terms . . . .”

Tarrant Regional Water Dist., 133 S.Ct. at 2135; see also Droemer v. Transit Mix

Concrete of Gonzales, Inc., 457 S.W.2d 332, 335 (Tex. App.—Corpus Christi

1970, no writ) (“If a contract is doubtful or ambiguous in its meaning, the acts of

the parties themselves, in the course of the performance of the contract, are entitled

to great weight to aid the court in its interpretation.”). Here, the member states’

course of performance demonstrates that Article III.1 was not intended as a binding

contractual term that would prevent future legislatures from overriding it.

      To state the obvious, the parties to the tax compact are states whose

legislatures have adopted it. The states have long allowed each other to depart

from Articles III.1 and IV while continuing to participate as full compact members.

For example, when Florida amended the tax compact by eliminating Articles III

and IV in 1971, the party states unanimously ratified Florida’s continued

membership, declaring in 1972 that Florida was “adhering to the spirit of the

Compact” and resolving that “Florida be recognized as a member in good standing




                                          18
of the Multistate Tax Compact and the Multistate Tax Commission.” CR.487.5

       Between 1987 and 1995, five party states—Minnesota, California, Idaho,

Oregon, and Arkansas—similarly adopted laws that eliminated or superseded

Article III.1. Minnesota amended its tax compact statute by eliminating Articles

III and IV.6 California and Idaho each adopted statutes mandating use of a double-

weighted sales factor “[n]otwithstanding” the tax compact.7 Oregon adopted

legislation resolving any inconsistency between the tax compact and its separately

codified version of the Uniform Division of Income for Tax Purposes Act



       5
           Graphic mistakenly implies that in 1972 Florida retained an equally-weighted three-
factor formula for taxpayers who would have been subject to Article IV. See Reply Brief of
Appellant at 17 (“Fla. Stat. § 214.71 set forth the same formula as Compact Article IV.”). In
fact, Fla. Stat. § 220.15(4) provided: “In lieu of the equally weighted three-factor apportionment
fraction based on property, payroll, and sales which is described in s. 214.71, there shall be used
for purposes of the tax imposed by this Code an apportionment fraction composed of a sales
factor representing 50% of the fraction, a property factor representing 25% of this fraction, and a
payroll factor representing 25% of the fraction.” See 1971 Fla. Laws ch. 71-984 § 1 (eff. Jan. 1,
1972).

       6
         See 1987 Minn. Laws 1039, 1098-1120; Firstar Corp. v. Comm’r, 575 N.W.2d 835, 838
(Minn. 1998) (discussing history). The validity of Minnesota’s elimination of Articles III and IV
in 1987 currently is before the Minnesota Tax Court in Kimberly-Clark Corp. and Subsidiaries v.
Commissioner, No. 8670-R. In 2013, Minnesota repealed the tax compact. See 2013 Minn. Laws
143.
       7
          See Cal. Rev. & Tax Code § 25128(a) (1993) (prescribing use of double-weighted sales
factor formula “[n]otwithstanding § 38006 [the tax compact]”); 1993 Cal. Stat. 946 (S.B. 1176);
Idaho Code § 63-3027(i)(1) (requiring use of double-weighted sales factor formula
“[n]otwithstanding the election allowed in article III.1 of the multistate tax compact . . . .”); 1994
Idaho Sess. Laws 301 (H.B. 897). The validity of California’s 1993 legislation currently is before
the California Supreme Court in Gillette Co. and Subsidiaries v. California Franchise Tax Board,
S206587. Texas, on behalf of eighteen states and the District of Columbia, has filed a Brief of
Amici Curiae in support of the Franchise Tax Board. In 2012, California repealed the tax compact.
2012 Cal. Stat. 37 (S.B. 1215).

                                                19
(“UDITPA”) in favor of the latter.8 Arkansas directly amended the apportionment

formula in both Article IV of the tax compact and its separately enacted version of

UDITPA.9 As the State of Texas observes, nothing in the records of the Multistate

Tax Commission indicates that the party states have objected to these legislative

acts amending or overriding Article III.1 or IV or to later similar actions taken by

other states.10 See Brief of Appellees at 13.



       8
          See Or. Rev. Stat. § 314.606 (1993) (“In any case in which the provisions of ORS
314.605 to 314.675 are inconsistent with the provisions of ORS 305.655 [the tax compact], the
provisions of ORS 314.605 to 314.675 shall control.”); 1993 Or. Laws 726, § 20 (H.B. 2058); Or.
Rev. Stat. § 314.650(1) (1993) (prescribing use of double-weighted sales factor). The validity of
Or. Rev. Stat. § 314.606 currently is before the Oregon Tax Court in HealthNet, Inc. and
Subsidiaries v. Department of Revenue, TC No. 5127. Texas, on behalf of 12 states, has filed a
Brief of Amici Curiae in support of the Oregon Department of Revenue. In 2013, Oregon formally
withdrew from the tax compact and readopted it without Articles III and IV. See 2013 Or. Laws
407 (S.B. 307); Or. Rev. Stat. § 305.653 (2013).
       9
         See Ark. Code Ann. § 26-5-101 (1995) (amending Article IV.9); Ark. Code Ann. § 26-
51-709 (amending UDITPA formula); 1995 Ark. Acts 682.
       10
           Other jurisdictions include Colorado, Utah, Alabama, the District of Columbia,
Michigan, and North Dakota. See Colo. Rev. Stat. § 24-60-1301 (Article III.1 deleted effective
January 1, 2009); Colo. Rev. Stat. § 39-22-303.5(2) (2009) (mandating apportionment using single
sales factor formula for tax years beginning on or after January 1, 2009); 2008 Colo. Sess. Laws
256 (H.B. 08-1380); 2010 Utah Sess. Laws 155, § 1 (S.B. 165) (directly amending apportionment
formula in Article IV); Ala. Code § 40-27-1 (2011) (amending Article IV); 2011 Ala. Acts 2011-
616 (H.B. 434); D.C. Code § 47-411 (2013); 2013 D.C. Stat. 20-61, § 7342 (repealing tax compact
and readopting compact without Articles III and IV); Mich. Comp. Laws § 208.1301; N.D. Cent.
Code § 57-59-01, as amended by S.B. 2292 (2015) (deleting Articles III and IV). In International
Business Machines Corp. v. Department of Treasury, 852 N.W.2d 865 (Mich. 2014), four justices
of the Michigan Supreme Court held that Article III.1 remained in effect for the tax years at issue
as a matter of Michigan statutory law, without addressing the constitutional issue here. Three
justices would have held that the Michigan legislature impliedly repealed Article III.1 without
violating any constitutional provisions. Subsequently, Michigan retroactively repealed the tax
compact. See 2014 Mich. Pub. Acts 282. The Michigan Court of Claims recently upheld that
retroactive repeal, finding that the tax compact was merely advisory and that the retroactive repeal
did not impair any contractual obligations. See Ingram Micro. Inc. v. Mich. Dep’t. of Treasury,
No. 11-000035-MT, slip op. (Mich. Ct. Cl. Dec. 19, 2014) (appeal pending).

                                               20
      C.     Construing the tax compact as the amici suggest does not require
             the court to insert “absent terms,” but rather to discern the states’
             intent using constructional principles under the Contract Clause.

      Here, the State maintains, and the amici states agree, that when Texas joined

the tax compact, it reserved the right to exercise its sovereign tax power by

eliminating the Article III.1 election without withdrawing from the tax compact

under Article X.2. Graphic, however, argues that the State thereby seeks to insert

what is omitted into the tax compact. In support, Graphic quotes the statement, in

Alabama v. North Carolina, 560 U.S. 330, 352, 130 S.Ct. 2295 (2010), that the

Court is “especially reluctant to read absent terms into an interstate compact . . . .”

Graphic Br. at 41. Graphic errs.

      Graphic’s reliance on Alabama v. North Carolina highlights the errors of

selectively quoting from “compact law” cases involving Congressionally-approved

compacts and of overlooking the constructional principles that apply under the

Contract Clause. Alabama v. North Carolina involved the construction of a

Congressionally-approved compact for the creation of regional radioactive waste

facilities in the southeastern United States. Because Congress approved the

compact at issue in Alabama v. North Carolina, that compact became federal law.

      The radioactive waste compact’s status as federal law is critical in

explaining the Court’s refusal to read “absent terms”—there, an implied duty of

good faith—into that compact. The Court’s reluctance stemmed expressly from


                                          21
“federalism and separation-of-powers concerns”—concerns that arose because

Congress had transmuted the compact into federal law. 560 U.S. at 352. In the

sentences immediately preceding Graphic’s quote, the Court explained that “an

interstate compact is not just a contract; it is a federal statute enacted by

Congress . . . . We do not—we cannot—add provisions to a federal statute. And

in that regard a statute which is a valid interstate compact is no different.” Id. at

351-52 (emphases added). The Court noted that Congress had approved similar

interstate compacts by other states authorizing regional radioactive waste facilities

and that those compacts included an explicit duty of good faith. The Court

therefore would not insert what had been omitted in a federal statute when other

Congressionally-approved compacts on a similar subject included “express good-

faith limitations upon a State’s exercise of its rights.” Id. at 353.

      More generally, the Court in Alabama v. North Carolina did not consider the

constructional principles that must be applied under the Contract Clause here. The

Court had no need to consider whether a state unmistakably waived its sovereign

tax power or unmistakably conferred contractual rights on nonparty taxpayers.

Nor did the Court have occasion to apply the rule that “the laws which subsist at

the time and place of the making of a contract . . . enter into and form a part of it,

as if they were expressly referred to or incorporated in its terms.” United States

Trust, 431 U.S. at 19 n.17 (internal citations and quotations omitted). Here the


                                           22
member states’ constitutional prohibitions on suspension of the tax power are

incorporated terms of the tax compact, not “absent” terms.

      Furthermore, as the case caption in Alabama v. North Carolina

demonstrates, the states disagreed regarding that compact’s interpretation. By

contrast, the members of the tax compact have no disagreement with Texas here,

but rather a longstanding and consistent course of conduct. The member states

expressly consented to Florida’s elimination of Articles III and IV, and no state has

objected to the actions of other legislatures that eliminated or amended

Articles III.1 and IV.

      Since Graphic acknowledges that Congress never has consented to the tax

compact, the Court’s federalism concerns in Alabama v. North Carolina that made

it reluctant to read absent terms into the compact there are irrelevant to this case.

The party states adopted the tax compact as a statute, knowing that many states’

constitutions prohibited contractual suspensions of the tax power and that the

compact’s provisions were severable. The states, individually and collectively,

could not unmistakably have intended Articles III.1 and IV as mutually binding

contractual terms that suspended each state’s power to adopt an exclusive tax

apportionment formula, given that many of their constitutions prohibited such

contractual suspensions.




                                          23
      D.     The threat of Congressional action in 1967 does not show that the
             states intended Article III.1 to contractually bind subsequent state
             legislatures.

      Graphic notes that the states drafted the tax compact in 1966 and 1967 in

response to the threat of federal legislation. According to Graphic, Article III.1

“guarantee[d] enough uniformity” to help the tax compact “gain[] the support of

enough party states . . . to convince Congress it no longer needed to act” and “was

at the heart of the deal that was struck . . . to stave off Congressional preemption.”

Graphic Br. at 45. Graphic thus asks this court to infer, based on a history of

Congressional inaction, that the states intended Article III.1 as a contractual term

binding future legislatures. This court should decline the invitation.

      First, Congress was not a party to the tax compact. Its consent was neither

required nor received. In emphasizing the concerns of a nonparty, Graphic ignores

the party states’ overarching motivation for the tax compact—the preservation of

each state’s sovereign authority to adopt its own tax laws.

      Second, even assuming Congressional intent were pertinent to the tax

compact’s construction, it is impossible to divine that intent from a history of

Congressional inaction. Bills may fail in Congress for a multitude of reasons. See

United States v. Price, 361 U.S. 304, 310-311, 80 S.Ct. 326 (1960) (“Whether

Congress thought the proposal unwise . . . or unnecessary, we cannot tell;

accordingly, no inference can properly be drawn from the failure of the Congress


                                          24
to act”). In fact, there is no indication that the tax compact or any particular

provision within it was directly responsible for Congressional inaction. Federal

proposals to regulate state taxation of multistate corporations failed many times

before and after the tax compact’s adoption in 1967.11 Federal legislation would

have regulated taxation in all 50 states, whereas the tax compact’s membership,

which did not include large states like New York or Pennsylvania, has hovered at

approximately 20 members since the early 1970s. See Multistate Tax Commission,

434 U.S. at 454 n.1.

       Nor did Congressional inaction reflect a “deal” to induce taxpayers to forgo

lobbying for federal legislation. Graphic Br. at 45. There was no “deal” with

Congress or taxpayers. Indeed, large multistate taxpayers subsequently challenged

the tax compact’s validity. See Multistate Tax Commission, 434 U.S. at 458.

Taxpayers are not parties to the tax compact, nor are they third-party beneficiaries.

       Accordingly, the historical context in which the states adopted the tax

compact does not indicate an unmistakable intent to adopt Article III.1 as a binding

       11
           Unsuccessful federal legislation to regulate state taxation of multistate corporations
included H. R. 11798, 89th Cong., 1st Sess. (1965); H.R. 16491, 89th Cong., 2d Sess. (1966); H.R.
2158, 90th Cong., 1st Sess. (1967); H.R. 2179, 91st Cong., 1st Sess. (1969); H.R. 7906, 91st
Cong., 1st Sess. (1969); S. 916, 91st Cong., 1st Sess. (1969); H.R. 1538, 92d Cong., 1st Sess.
(1971); S. 317, 92d Cong., 1st Sess. (1971); S. 1210, 92d Cong., 1st Sess. (1971); S. 1883, 92d
Cong., 1st Sess. (1971); H.R. 1538, 92d Cong., 2d Sess. (1972); S. 3333, 92d Cong., 2d Sess.
(1972); S. 4080, 92d Cong., 2d Sess. (1972); H.R. 977, 93d Cong., 1st Sess. (1973); S. 282, 93d
Cong., 1st Sess. (1973); S. 1245, 93d Cong., 1st Sess. (1973); S. 2092, 93d Cong., 1st Sess.
(1973); H.R. 9, 94th Cong., 1st Sess. (1975); S. 2080, 94th Cong., 1st Sess. (1975). Nor did
Congress adopt any of numerous bills that sought its consent to the tax compact. See Multistate
Tax Commission, 434 U.S. at 458 n.8.

                                              25
contractual term. The historical context shows that each state intended to preserve

its sovereign tax power, not to contractually limit it in violation of many of their

constitutions.

III.   TEXAS TAX CODE § 171.106 DOES NOT SUBSTANTIALLY
       IMPAIR ANY CONTRACTUAL RELATIONSHIP

       Graphic has no contractual rights under the tax compact. But even if Article

III.1 were a binding contractual term that gave Graphic contractual rights as a

third-party beneficiary, Texas Tax Code § 171.106 would be constitutionally valid.

“The threshold inquiry [under the federal Contract Clause] is whether the state law

has, in fact, operated as a substantial impairment of a contractual relationship.”

Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411, 103

S.Ct. 697 (1983) (internal quotations and citations omitted). If a state law

substantially impairs a contractual relationship, the inquiry turns to whether that

impairment “is reasonable and necessary to serve an important public purpose.”

United States Trust, 431 U.S. at 25. Here, however, no substantial impairment

occurred.12




       12
           The amici states focus here on issues common to the construction of the tax compact.
Amici also agree with the State of Texas that, even if there were a substantial impairment of a
purported contractual obligation to a third-party taxpayer, the Contract Clause still would not be
violated. First, Texas Tax Code § 171.106 serves an important public purpose. Second, any
impairment of contractual obligations under the tax compact would be reasonable and necessary in
serving that purpose. See Brief of Appellees at 66-67.

                                               26
      A substantial impairment occurs only if there is a contractual relationship, a

change in law impairs that contractual relationship, and the impairment is

substantial. See General Motors, 503 U.S. at 186. Graphic argues that it had a

contractual right under Article III.1 to employ the apportionment formula in

Article IV.9 of the tax compact and that Texas Tax Code § 171.106 eliminated, and

thereby impaired, that right. As argued above, the amici states do not believe

Graphic had a contractual right. But even assuming Graphic were correct, Texas

Tax Code § 171.106 did not result in a substantial impairment.

      In evaluating the severity of an impairment, one considers “the legitimate

expectations of the contracting parties,” including reasonable reliance. United

States Trust, 431 U.S. at 19 n.17. In Allied Structural Steel Co. v. Spannaus, 438

U.S. 234, 246, 98 S.Ct. 2716 (1978), for example, the Court held that a law that

retroactively modified the amount required to be contributed to a pension plan

substantially impaired contractual obligations when the company had “relied

heavily, and reasonably, on [its] legitimate contractual expectation in calculating

its annual contributions to the pension fund.” But a state law that “restricts a party

to gains it reasonably expected from the contract does not necessarily constitute a

substantial impairment.” Energy Reserves, 459 U.S. at 411.

      If Graphic had any contractual right to employ Article III.1 before Texas

revised its franchise tax in 2006 effective in 2008, Texas Tax Code § 171.106 still


                                          27
left Graphic with the “gains it reasonably expected” under the tax compact after

2006. Id. Graphic concedes that Texas would not have impaired any contractual

rights Graphic may have had if, in 2006, Texas had withdrawn from the tax

compact altogether, as permitted by Article X.2. Graphic Br. at 40. But Graphic’s

insistence that the State’s only constitutional recourse was to withdraw under

Article X.2—as opposed to simply adopting legislation opting out of Articles III.1

and IV—is an insistence on procedural formality over substance. Suppose, for

example, that a party state repealed the tax compact, readopted the compact later

the same year without Articles III and IV, and simultaneously adopted a mandatory

apportionment formula. Suppose, further, that the other states had no objection to

the state’s continued membership in the compact. Under those circumstances,

Graphic could not reasonably expect to continue to benefit from anything in

Articles III.1 or IV.

      Likewise, the fact that a state, instead of formally withdrawing and

readopting the tax compact without Articles III.1 and IV, either simply deleted or

restricted the operation of those two provisions would not change the end result.

No taxpayer would have had a legitimate expectation that the state continued to

bind itself to allow the Article III.1 election.

      Accordingly, if the Texas legislature impliedly eliminated Article III.1 when

it revised its franchise tax in 2006 effective in 2008, it left the party states and


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taxpayers in the same position as if Texas had withdrawn from the tax compact and

readopted it without Article III.1. Assuming Graphic ever had contractual rights to

make an election under Article III.1 before 2008, it could have no reasonable

expectation that Article III.1 applied for tax years 2008 to 2010. Because Texas

Tax Code § 171.106 does not substantially impair any contractual relationship, it

cannot violate the Contract Clause.

                                 CONCLUSION

      The court should affirm the trial court’s judgment sustaining the

Comptroller’s denial of Graphic’s refund claims for tax years 2008 to 2010 and the

Comptroller’s assessment for 2010.

      DATED this 13th day of May 2015.

                                         Respectfully submitted,

                                         ELLEN F. ROSENBLUM
                                         Attorney General of Oregon


                                         ANNA JOYCE
                                         Solicitor General


                                         /s/ Darren Weirnick________
                                         DARREN WEIRNICK
                                         Senior Assistant Attorney General
                                          Of Attorneys for Amici Curiae States of
                                         Oregon, et al.




                                        29
                      CERTIFICATE OF COMPLIANCE

      This brief complies with the typeface requirements Texas 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. This document also

complies with the word-count limitation of Texas Rule of Appellate Procedure

9.4(i)(2)(B) because it contains 7,363 words, excluding the parts of the brief

exempted by Rule 9.4(i)(1).


                                       /s/ Darren Weirnick________
                                       Darren Weirnick




                                         30
                          CERTIFICATE OF SERVICE

      I certify that the foregoing Brief of Amici Curiae States of Oregon et al. was

electronically filed with the Clerk of the Court using the electronic case filing

system of the Court. I also certify that a true and correct copy of the foregoing was

served via e-service or e-mail on the following counsel of record on May 13, 2015.

Amy L. Silverstein                             Rance Craft
asilverstein@sptaxlaw.com                      Assistant Solicitor General
SILVERSTEIN & POMERANTZ                        Rance.craft@texasttorneygeneral.gov
LLP                                            Cynthia A. Morales,
12 Gough Street, Second Floor                  Assistant Attorney General
San Francisco, California 94103
                                               Cynthia.morales@texasattorneygeneral.gov
Tele: (415) 593-3502
Fax: (415) 593-3501
                                               OFFICE OF THE ATTORNEY
                                               GENERAL
James F. Martens                               P.O. Box 12548 (MC 059)
jmartens@textaxlaw.com                         Austin, Texas 78711-2548
Amanda G. Taylor                               Tele: (512) 936-2872
ataylor@textaxlaw.com                          Fax: (512) 474-2697
Lacy L. Leonard
lleonard@textaxlaw.com                         COUNSEL FOR APPELLEES
Danielle Ahlrich
dahlrich@textaxlaw.com
MARTENS, TODD, LEONARD &
TAYLOR
301 Congress Avenue, Suite 1950
Austin, Texas 78701
Tele: (512) 542-9898
Fax: (512) 542-9899

COUNSEL FOR APPELLANT

                                               /s/Darren Weirnick______
                                               Darren Weirnick




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