                                                                                     ACCEPTED
                                                                                 03-15-00285-CV
                                                                                         5828646
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                            6/25/2015 3:39:16 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK
                         NO. 03-15-00285-CV
        ____________________________________________________
                                                        FILED IN
                                                 3rd COURT OF APPEALS
               IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
                       AT AUSTIN, TEXAS          6/25/2015 3:39:16 PM
      ____________________________________________________
                                                   JEFFREY D. KYLE
 VOLKSWAGEN GROUP OF AMERICA, INC., and AUDI OF AMERICA, Clerk
                                     INC.,
                                   Appellants,
                                       v.

  JOHN WALKER III, in his Official Capacity as Chairman of the Texas
Department of Motor Vehicles Board, and the HONORABLE MICHAEL J.
O’MALLEY, and the HONORABLE PENNY A. WILKOV, in their Official
 Capacities as Administrative Judges for the State Office of Administrative
                                Hearings,
                                Appellees.
      ____________________________________________________
     On Appeal from the 353rd District Court, Travis County, Texas
       ___________________________________________________

 JOHN WALKER, III’S RESPONSE TO APPELLANT’S REQUEST FOR
                     EMERGENCY RELIEF
      ____________________________________________________

KEN PAXTON                             DENNIS M. MCKINNEY
Attorney General of Texas              Assistant Attorney General
                                       State Bar No. 13719300
CHARLES E. ROY                         OFFICE OF THE TEXAS ATTORNEY
First Assistant Attorney General       GENERAL
                                       ADMINISTRATIVE LAW DIVISION
JAMES E. DAVIS                         P.O. Box 12548
Deputy Attorney General for            Austin, Texas 78711-2548
Civil Litigation                       Telephone: (512) 475-4020
                                       Facsimile: (512) 320-0167
DAVID A. TALBOT, JR.                   dennis.mckinney@texasattorneygeneral.
Chief, Administrative Law Division     gov
                                       Attorneys for John Walker III
TO THE HONORABLE JUSTICES OF THE COURT:

                                       I.

      On June 15, 2015, Appellant Volkswagen Group of America, Inc., and

Audi of America, Inc., (“Audi”) filed its Verified Motion for Temporary

Relief to Protect the Court’s Jurisdiction. In said Motion, Appellant seeks,

pursuant to the Texas Rules of Appellate Procedure 29.3 and 43.6, to have

certain State Office of Administrative Hearings (“SOAH”) proceedings and

potential further Texas Department of Motor Vehicles (“TxDMV”) Board

action based upon those SOAH proceedings enjoined so as to protect the

jurisdiction of this Court. Appellee John Walker, III, files this response in

opposition to the granting of the relief requested in Appellant’s Motion.

      Granting of temporary relief under Rule 29.3 is improper in this matter

because that particular provision of the Rules of Appellate Procedure applies

to interlocutory appeals only. Tex. R. App. P. 29.3. This case involves the

appeal of final judgments dismissing the case in its entirety, therefore Rule

29.3 is inapplicable. Likewise, Rule 43.6 speaks to orders relating to final

judgments of the Court, not interlocutory injunctive orders such as the one

sought here. Tex. Rule App. P. 43.6.

      While Texas Government Code section 22.221 gives an appellate court

authority to issue writs to enforce its jurisdiction, no injunction should issue


                                       2
if the party seeking it has an adequate appellate remedy. In re Prudential Ins.

Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004). An appellate remedy is

adequate even though it may involve delay and more expense than obtaining

the temporary relief Audi seeks. In re Masonite Corp., 997 S.W.2d 194 (Tex.

1999). As explained below, Audi has adequate appellate remedies that will

not be negated by the actions sought to be enjoined, therefore injunctive relief

is improper.

                                       II.

        The temporary relief sought by Audi amounts to nothing more than a

reheated attempt to obtain the injunctive relief denied by the trial court. At

the trial court level, Audi sought temporary restraining orders seeking to

enjoin all further actions in the administrative process pending the outcome of

its suit alleging ultra vires acts by the Appellees. That relief was denied. Audi

then sought a temporary injunction of the administrative process but the trial

court granted Appellants’ pleas to the jurisdiction and dismissed the case.

That dismissal led to this appeal. Audi filed its Notice of Appeal on or about

May 8, 2015, yet did not seek injunctive relief until some five weeks later.

Nothing has transpired since the filing of the Notice of Appeal that created

any exigent circumstances for Audi that might necessitate such relief at this

time.


                                       3
      This Court has the inherent power to grant injunctive relief to preserve

its jurisdiction. Tex. Gov’t Code § 22.221 (West 2004); Becker v. Becker,

639 S.W.2d 23, 24 (Tex. App.—Houston [1st Dist.] 1982, no writ). However,

the Court should not exercise such discretionary power just because Audi

requests it. For example, the Court does not have the jurisdiction to issue

orders merely to preserve the status quo or to prevent loss or damage to a party

pending the outcome of the appeal. In re Gruebel, 153 S.W.3d 686 (Tex.

App.—Tyler 2005, no pet.); EMW Mfg. Co. v. Lemons, 724 S.W.2d 425, 426

(Tex. App.—Fort Worth 1987, no writ). Audi alleges that its claims may be

mooted by actions of the Appellees before this appeal is resolved but in reality

that is mere speculation and a bit unrealistic. If the administrative process is

allowed to move forward then SOAH must issue its Proposal for Decision and

TxDMV must take action on it. See Smith v. Abbott, 311 S.W.3d 62, 69 (Tex.

App.—Austin 2010, pet. denied). (It should be noted that Audi may very well

prevail at the administrative level if that process is allowed to proceed in due

course.) Once the Board issues its final order, if adverse to Audi, a motion

for rehearing will be filed. If that motion is denied Audi has its right to seek

judicial review of TxDMV’s actions. See Tex. Gov’t Code § 2001.174. Any

order of the district court affirming the action of the TXDMV is appealable to




                                       4
this Court. See Smith, 311 S.W.3d at 71. Audi clearly has an adequate

appellate remedy so that injunctive relief is inappropriate.

      This appeal challenges the granting of pleas to the jurisdiction filed by

Appellees. It is only tangentially related to the actions being taken by SOAH

and TxDMV. Any temporary relief requested of this Court should be related

to the subject matter of this appeal. Pendleton Green & Assocs. v. Anchor Sav.

Bank, 520 S.W.2d 579, 582 (Tex. App.—Corpus Christi 1975, no writ).

Nothing that might happen in the administrative process will in any way affect

the jurisdiction of this Court to rule on whether the trial court erred in granting

Appellees’ pleas to the jurisdiction. The most favorable final relief Audi can

obtain from this Court is an order remanding the case to the district court.

Audi cannot seek to have its allegations concerning whether Appellees

committed ultra vires acts adjudicated in this proceeding. See Madison v.

Martinez, 42 S.W.2d 84, 86 (Tex. Civ. App.—Dallas 1931, writ ref’d). This

Court should not be expected to weigh in on the validity of Audi’s allegations

beyond that necessary to determine whether the trial court erred in granting

the pleas to the jurisdiction. Whether or not the Appellees acted incorrectly

at the administrative level should be left to be decided in a suit for judicial

review after a final order of the board is issued.




                                        5
                                       III.

      Further, the granting of temporary relief as requested by Audi in this

case is inappropriate because Audi has its legal remedy in the form of judicial

review at the district and appellate court levels after the TxDMV takes action

on any Proposal for Decision issued by SOAH. Audi seeks an order of the

Court enjoining that legal remedy. The existence of this legal remedy makes

injunctive relief by this Court improper. See Madison, 42 S.W.2d at 86. This

Court only has authority to grant injunctive relief if it can be shown that the

subject matter of the appeal will be destroyed absent such injunction.

Pendleton, 520 S.W.2d at 582. Injunction is not proper merely to preserve the

status quo pending appeal. Becker, 639 S.W.2d at 24. The existence of the

legal remedy of judicial review of an agency order provides Audi with a right

of appeal, ultimately to this Court if it desires, and vitiates Audi’s request for

temporary relief from this Court. The dispute will not be mooted by any

actions that might be taken by the Appellees. A case is moot when a court’s

actions will no longer affect the rights of the parties. In re Smith, No. 10-03-

390-CV, 2004 WL254079 (Tex. App.—Waco Feb. 11, 2004, no pet.). In that

case the Court stated that temporary relief was not appropriate because any

action taken during the pendency of the appeal could be reversed on appeal.

Here, Audi will still be able to pursue its appeal of the granting of the


                                        6
jurisdictional appeals in this case. Additionally, Audi will also have the right

to seek judicial review of any final order issued by TxDMV. Tex. Gov’t Code

§ 2001.174. Audi can pursue every claim it makes in this suit after the

TxDMV issues its final order and should not be attempting to enjoin that

process. See Smith, 311 S.W.3d at 71.

                                      IV.

      Audi’s suit is based in part on allegations that Walker acted ultra vires

in ordering the matter remanded to SOAH for the taking of additional

evidence and the SOAH Defendants’ reopening the matter after it was

remanded by TxDMV. However, it is clear that Walker and the SOAH

Defendants did not act ultra vires, therefore, they are protected by the doctrine

of sovereign immunity and were properly dismissed by the trial court. Coastal

Habitat Alliance v. Pub. Util. Comm’n, 294 S.W.3d 276 (Tex. App.—Austin

2009, no pet.). Ultra vires acts must either involve actions that exceed that

state official’s authority or involve a refusal to perform a purely ministerial

act. City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Suit for

ultra vires acts will not lie when an official is required to exercise his or her

discretion in the performance of his or her duties. See id. Here, all of Audi’s

claims for declaratory relief are premised on alleged ultra vires acts involving

the Board’s decision to remand the administrative case to SOAH for


                                       7
consideration of additional evidence.      Audi claims that the Board has

exceeded its authority by remanding the matter to SOAH for further evidence.

Clearly, the actions of Walker and the Board in the administrative process did

not exceed their statutory authority in as much as TxDMV is granted exclusive

jurisdiction over all aspects of the distribution and sale of motor vehicles in

the State of Texas, including original jurisdiction to determine its own

jurisdiction. Tex. Occ. Code § 2301.151 (West 2012). TxDMV is further

vested with authority to regulate the sales of dealerships and

dealership/manufacturer disputes. Tex. Occ. Code §§ 2301.359, .360, .458.

See also Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd. of the Tex.

Dep’t of Transp., 156 S.W.3d 91 (Tex. App.—Austin 2004, pet. denied). In

all disputes between manufacturers and dealers wishing to sell their

dealerships, the Legislature has given the Board the unambiguous authority to

rule on all issues. Tex. Occ. Code §§ 2301.359, .360, .458. The Board’s

remand order in this case cannot be ultra vires since it relates directly to the

dispute over the sale of the Audi dealerships in question. An action is ultra

vires only when an agency issues an order completely outside its statutory

jurisdiction or “without any authority whatsoever.” Friends of Canyon Lake,

Inc. v. Guadalupe-Blanco River Auth., 96 S.W.3d 519 (Tex. App.—Austin

2002, pet. denied), Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89


                                       8
(1984). Mistakes or errors in procedure in the exercise of the Board’s

authority do not render the Board’s action ultra vires. Friends of Canyon

Lake, 96 S.W.3d at 528; Coastal Habitat Alliance, 294 S.W.3d at 285. Even

assuming arguendo that the Board made a mistake in issuing such order, it

had clear statutory jurisdiction to rule on the dispute.      Tex. Occ. Code

§§ 2301.359, .360, .458. It is not ultra vires for an agency to incorrectly

interpret the law. Coastal Habitat Alliance, 294 S.W.3d at 285; N. Alamo

Water Supply Corp. v. Tex. Dep’t of Health, 839 S.W.2d 455, 458-59 (Tex.

App.—Austin 1992, writ denied). Further, rulings in the administrative

process necessarily involve the exercise of statutory discretion by the agency

officials, so the ultra vires exception to the doctrine of sovereign immunity is

not implicated. See Coastal Habitat Alliance, 294 S.W.3d at 285.

      Any mistakes in procedure at the administrative level can be rectified

in a suit for judicial review. Audi seeks to enjoin the administrative process

(its legal remedy) before there is a final order by TxDMV. This action is

inappropriate because the trial court cannot obtain jurisdiction until Audi has

exhausted its administrative remedies and those remedies are not exhausted

until a final agency order is issued. See Lindsay v. Sterling, 690 S.W.2d 560

(Tex. 1985). Accordingly, the trial court properly dismissed Walker from the




                                       9
suit for lack of subject matter jurisdiction and there is no basis for the issuance

of the temporary relief requested.

                       CONCLUSION AND PRAYER

      For the foregoing reasons, Appellee Walker respectfully requests that

this Court deny Audi’s Motion for Temporary Relief, and such other and

further relief to which Appellee may be entitled.

                                  Respectfully submitted,

                                  KEN PAXTON
                                  Attorney General of Texas

                                  CHARLES E. ROY
                                  First Assistant Attorney General

                                  JAMES E. DAVIS
                                  Deputy Attorney General for Civil Litigation

                                  DAVID A. TALBOT, JR.
                                  Division Chief, Administrative Law
                                  Division

                                  /s/ Dennis M. McKinney
                                  Dennis M. McKinney
                                  Assistant Attorney General
                                  State Bar No. 13719300
                                  OFFICE OF THE TEXAS ATTORNEY GENERAL
                                  ADMINISTRATIVE LAW DIVISION
                                  P. O. Box 12548
                                  Austin, Texas 78711-2548
                                  Telephone: (512) 475-4020
                                  Facsimile: (512) 320-0167
                                  dennis.mckinney@texasattorneygeneral.gov
                                  Attorneys for Appellee Walker


                                        10
                  CERTIFICATE OF COMPLIANCE

      I hereby certify compliance with Texas Rules of Appellate Procedure 9
and that there are 1,932 words in this document. Microsoft Word was used to
prepare this filing and calculate the number of words in it.

                                /s/ Dennis M. McKinney
                                Dennis M. McKinney
                                Assistant Attorney General


                     CERTIFICATE OF SERVICE

     I hereby certify that, in compliance with Rule 9.5 of the Texas Rules of
Appellate Procedure, a true and correct copy of the above and foregoing
document has been served on the following on this the 25th day of June, 2015:

Shawn Stephens
James P. Sullivan
1100 Louisiana Suite 4000
Houston, Texas 77002
Sstephens@kslaw.com
jsullivan@kslaw.com
Fax 713-751-3290
Attorneys for Appellants

Billy M. Donley
Mark E. Smith
811 Main Street, Suite 1100
Houston, Texas 77002-6111
bdonley@bakerlaw.com
mesmith@bakerlaw.com
Fax 713-751-1717
Attorney for Appellants




                                     11
Kimberly Fuchs
Assistant Attorney General
Texas Attorney General’s Office
P.O. Box 12548
Austin, Texas 78711
kimberley.fuchs@texasattorneygeneral.gov
Attorney for Defendants the Honorable Michael J. O’Malley and the
Honorable Penny A. Wilkov, in their Official Capacities as Administrative
Law Judges for the State Office of Administrative Hearings

J. Bruce Bennett
Cardwell, Hart & Bennett
807 Brazos Suite 1001
Austin, Texas 78701
jjb.chblaw@abcglobal.net
Fax 512-322-0808

William R. Crocker
807 Brazos Suite 1014
Austin, Texas 78701
crockerlaw@earthlink.net
Fax 512-474-2540
Attorneys for Appellees
Ricardo M. Weitz, et al

                              /s/ Dennis M. McKinney
                              Dennis M. McKinney
                              Assistant Attorney General




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