CAUSE NO. 03-15-00285-CV

IN THE COURT OF APPEALS 

FOR THE THIRD DISTRICT OF TEXAS 

AUSTIN, TEXAS 

Volkswagen Group of America, Inc. and Audi of America, Inc. of Texas 

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 Law 

Judges for the State Office of Administrative Hearings 

Appellees. 

On Appeal from the 201st Judicial District Court, Travis County, Texas 

Honorable Amy Clark Meachum, Presiding Judge 

BRIEF OF APPELLEES O’MALLEY AND WILKOV

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

SHELLEY DAHLBERG

Associate Deputy Attorney General for 

Civil Litigation

DAVID A. TALBOT, JR.

Chief, Administrative Law Division

August 14, 2015

KIMBERLY L. FUCHS

State Bar No. 24044140

Administrative Law Division

Office of the Attorney General of Texas

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

Telephone: (512) 475-4195

Facsimile: (512) 320-0167

ATTORNEYS FOR APPELLEES

THE HONORABLE MICHAEL J. O’MALLEY 

AND THE HONORABLE PENNY A. WILKOV

ACCEPTED

03-15-00285-CV

6498582

THIRD COURT OF APPEALS

AUSTIN, TEXAS

8/14/2015 10:40:14 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 8/14/2015 10:40:14 AM JEFFREY D. KYLE Clerk
ii

REFERENCE TO THE PARTIES

Appellants, Volkswagen Group of America, Inc. and Audi Group of America, 

Inc., will be referred to as “Audi.” Appellee John Walker III will be referred to as 

“Walker.” Appellee Budget Leasing and Appellees Ricardo M. Weitz, Hi Tech 

Imports North, LLC, Hi Tech Imports South, LLC, and Hi Tech Imports, LLC, will 

be referred to collectively as “Intervenors.” Appellees Michael J. O’Malley and 

Penny A. Wilkov will be referred to as “SOAH ALJs.” 

REFERENCES TO THE RECORD

Clerk’s record will be referenced as: C.R. [Page]

Appendix will be referenced as: App. [Letter]
iii

TABLE OF CONTENTS

Reference to the Parties............................................................................................. ii

References to the Record .......................................................................................... ii

Table of Contents..................................................................................................... iii

Table of Authorities...................................................................................................v

Statement of the Case.............................................................................................. vii

Statement Regarding Oral Argument ..................................................................... vii

Statement Regarding Oral Argument ..................................................................... vii

Issues Presented ..................................................................................................... viii

1. Response to Audi’s issue 1: The trial court did not err in finding Audi had 

failed to state a proper ultra vires claim capable of overcoming Defendants’ 

entitlement to immunity and granting Defendants O’Malley and Wilkov’s 

plea to the jurisdiction ................................................................................. viii

2. Response to Audi’s issue 2: The trial court did not err in dismissing Audi’s 

case because no proper ultra vires claim was asserted, and Audi has the 

opportunity to challenge the remand through a suit brought under the APA 

after exhaustion of administrative remedies................................................ viii

Statement of Facts......................................................................................................1

Summary of the Argument.........................................................................................2

Argument....................................................................................................................3

I. The trial court did not err in finding Audi had failed to state a proper ultra 

vires claim capable of overcoming Defendants’ entitlement to immunity and 

granting Defendants O’Malley and Wilkov’s plea to the jurisdiction ............3

A. Audi has not stated a proper ultra vires claim ......................................3

1. None of the cases cited by Audi involve cases on remand.........4

2. SOAH’s interpretation of Rule 155.153 must be given 

deference .....................................................................................5
iv

B. Audi cannot overcome the SOAH ALJs entitlement to sovereign 

immunity ...............................................................................................5

C. The trial court was correct in deciding the plea to the jurisdiction 

without looking at additional evidence .................................................7

II. The trial court did not err in dismissing Audi’s case because no proper ultra 

vires claim was asserted, and Audi has the opportunity to challenge the 

remand through a suit brought under the APA after exhaustion of 

administrative remedies...................................................................................9

A. Immunity and the exhaustion requirement are not waived if no proper 

ultra vires claim is pled.........................................................................9

B. Even if a proper ultra vires claim is pled, sovereign immunity is only 

waived for claims for prospective injunctive relief ..............................9

C. Audi’s claims are properly brought in a suit for judicial review after 

exhaustion of administrative remedies................................................11

Conclusion and Prayer .............................................................................................11

Certificate of Compliance ......................................................................................133

Certificate of Service ...............................................................................................13
v

TABLE OF AUTHORITIES

CASES

Andrade v. NAACP of Austin, 

345 S.W.3d 1 (Tex. 2011)..........................................................................................8

City of El Paso v. Heinrich,

284 S.W.3d 366 (Tex. 2009)........................................................................... 3, 9, 10

Coastal Habitat Alliance v. Pub. Util. Comm’n of Tex.,

294 S.W.3d 276 (Tex. App.—Austin 2009, no pet.).................................................6

Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on Envtl. Quality, 

307 S.W.3d 505 (Tex. App.—Austin 2010, no pet.).................................................8

Hendee v. Dewhurst, 

228 S.W.3d 354 (Tex. App.—Austin 2007, pet. denied) ..........................................7

KEM Tex., Ltd. v. Tex. Dep’t of Transp., 

No. 03-08-00468-CV, 2009 WL 1811102 

(Tex. App.—Austin Jun. 26, 2009, no pet.)...............................................................6

Klumb v. Houston Mun. Emps. Pension Sys., 

405 S.W.3d 204 (Tex. App.—Houston [1st Dist.] 2013)..........................................8

N. Alamo Water Supply Corp. v. Tex. Dep’t of Health, 

839 S.W.2d 455 (Tex. App.—Austin 1992, writ denied)

aff’d 458 S.W.3d 1 (Tex. 2015).................................................................................6

State v. Sledge, 

36 S.W.3d 152 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) ........................6

Sw. Pharmacy Solutions, Inc. v. Tex. Health and Human Servs. Comm'n, 

408 S.W.3d 549 (Tex. App.–Austin 2013, pet. denied) ............................................5

Westheimer Indep. Sch. Dist. v. Brockette, 

567 S.W.2d 780 (Tex. 1978)......................................................................................5
vi

STATUTES

Tex. Gov't Code

Tex. Gov’t Code § 2001.171....................................................................................10

Tex. Gov’t Code § 2001.174(2)(A) .........................................................................11

STATE OFFICE OF ADMINISTRATIVE HEARINGS ORDERS1

In the Matter of Ricardo M. Weitz, et al. v. Volkswagen Group of America, Inc., 

et al., SOAH Docket No. 0608-13-4599.LIC, Remand Order No. 15 (Jun. 16, 

2015) ........................................................................................................................10

RULES

1 Tex. Admin. Code § 155.153 (2008) .....................................................................9

Tex. R. Civ. P. 329b...................................................................................................5

 

1 Proposal for decisions and orders of the State Office of Administrative Hearings are available on 

the internet at: http://www.soah.state.tx.us/PFDSearch/Search.asp and Westlaw©.
vii

STATEMENT OF THE CASE

Nature of the case: Audi filed suit against ALJs Michael J. O’Malley 

and Penny A. Wilkov and Department of Motor 

Vehicles (DMV) Chairman John Walker III. In 

its lawsuit, Audi alleged Defendants committed 

ultra vires acts by remanding a case to the State 

Office of Administrative Hearings (SOAH). 

Budget Leasing and Appellees Ricardo M. Weitz, 

Hi Tech Imports North, LLC, Hi Tech Imports 

South, LLC, and Hi Tech Imports, LLC 

intervened in the case. After the trial court denied 

Audi’s request for a temporary restraining order, 

Defendants filed pleas to the jurisdiction, 

asserting that Audi had failed to state proper ultra 

vires claims against any of the Defendants and had 

failed to overcome Defendants’ entitlement to 

immunity. 

Trial court: 201st Judicial District Court, Travis County, 

Texas; The Honorable Judge Amy Clark 

Meachum, presiding.

Trial court disposition: The trial court granted Defendants O’Malley and 

Wilkov’s Plea to the Jurisdiction and Defendant 

Walker’s Plea to the Jurisdiction, dismissing the 

case.

STATEMENT REGARDING ORAL ARGUMENT

Defendants O’Malley and Wilkov take the position that oral argument is not 

necessary in this case, but requests the right to make an argument should oral 

argument be granted.
viii

ISSUES PRESENTED

1. Response to Audi’s issue 1: The trial court did not err in finding Audi had failed 

to state a proper ultra vires claim capable of overcoming Defendants’ 

entitlement to immunity and granting Defendants O’Malley and Wilkov’s plea 

to the jurisdiction.

2. Response to Audi’s issue 2: The trial court did not err in dismissing Audi’s case 

because no proper ultra vires claim was asserted, and Audi has the opportunity 

to challenge the remand through a suit brought under the APA after exhaustion 

of administrative remedies.
CAUSE NO. 03-15-00285-CV

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS

AUSTIN, TEXAS

Volkswagen Group of America, Inc. and Audi of America, Inc. of Texas

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 Law 

Judges for the State Office of Administrative Hearings

Appellees.

On Appeal from the 201st Judicial District Court, Travis County, Texas

Honorable Amy Clark Meachum, Presiding Judge

BRIEF OF APPELLEES O’MALLEY AND WILKOV

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

STATEMENT OF FACTS

This case stems from a contested case proceeding involving Audi and the 

intervenors. The contested case was referred to the State Office of Administrative 

Hearings (SOAH) by the Department of Motor Vehicles (DMV). C.R. 117-148. The 

underlying dispute involves the sale of two auto dealerships. C.R. 367-369. After a 

hearing, SOAH issued a proposal for decision (PFD), agreeing with Audi that the 
2

intervenors were not currently qualified buyers, but setting out the conditions that 

the buyers would need to meet to become qualified. C.R. 399-502. 

The DMV did not enter a final decision based on the PFD, but rather dismissed 

the case for failure to comply with procedural requirements. C.R. 503-505. On 

motion for rehearing, the DMV set aside its dismissal and remanded the case to 

SOAH for a finding on whether the procedural requirements were, in fact, met. C.R. 

168-169. 

The only issue in this case is based on Audi’s claim that Chairman Walker 

committed an ultra vires act by remanding a case to SOAH and that the SOAH ALJs 

committed an ultra vires act by accepting a remand from the DMV and conducting 

procedures in accordance with it. 

SUMMARY OF THE ARGUMENT

Audi alleges the ALJs violated SOAH procedural Rule 155.153 by accepting 

a case remanded to them by the DMV. The rule at issue states that an Administrative 

Law Judge may reopen evidence in a case if the PFD has not issued. ALJs regularly 

accept cases remanded to them, and that rule has never been interpreted by SOAH 

or a court to prevent ALJs from reopening the record on remand. The ALJs have 

not committed ultra vires acts, and Audi’s claim fails on its face. Audi is also 

requesting retroactive relief, and such relief is barred by qualified immunity. 

Because no proper ultra vires claim was stated, Audi is required to exhaust its 
3

administrative remedies before complaining about the SOAH ALJs’ orders in district 

court. The trial court rightly granted the Plea to the Jurisdiction.

ARGUMENT

I. The trial court did not err in finding Audi had failed to state a proper 

ultra vires claim capable of overcoming Defendants’ entitlement to 

immunity and granting Defendants O’Malley and Wilkov’s plea to the 

jurisdiction.

A. Audi has not stated a proper ultra vires claim.

Audi has not stated a valid cause of action against SOAH. Although Audi 

mischaracterizes its complaint against the SOAH ALJs as an ultra vires claim, its 

own pleadings fail to identify any actions that the SOAH ALJs have taken that could 

be properly characterized as ultra vires. An ultra vires act occurs when an official 

acts without constitutional or statutory authority, or in violation of the constitution 

or a statute. City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Audi’s 

claim against the SOAH ALJs is simply an allegation that they violated a procedural 

rule, SOAH Rule 155.153, by accepting a case remanded to SOAH by the DMV.

SOAH has always interpreted Rule 155.153 to mean it cannot take new 

evidence concerning a Proposal for Decision that has already been issued. However, 

SOAH has also always interpreted Rule 155.153 to allow the taking of additional 

evidence in a remand proceeding in which a new supplemental or amended proposal

for decision will be issued. This interpretation can only be an ultra vires act if Audi 
4

can show that SOAH’s interpretation of its own rule is inconsistent with its statutory 

authority. Audi has made no attempt to do so.

Audi asserts that Rule 155.153 provides an “express prohibition” on 

reopening the record if a PFD is issued. Brief at 46. In fact, Rule 155.153(d) does 

not prohibit anything. It simply gives SOAH ALJs the ability to reopen the record 

if new issues arise after the record has been closed, but before the ALJ has issued a 

proposal for decision. The rule does not address remands, and there is nothing in 

the text of the rule suggesting that SOAH does not have the authority to accept 

remands. In fact, the statutes cited by Audi show that SOAH does regularly accept 

remands. Brief at 22-23. Further, Texas Government Code section 2001.175(c) 

specifically authorizes a district court to order SOAH to consider evidence not 

already in the record. If Rule 155.153 was meant to prohibit remands except where 

explicitly authorized, it could have easily done so. But nothing in the Rule indicates 

it applies to remands at all. 

1. None of the cases cited by Audi involve cases on remand.

Audi argues that SOAH has consistently ruled that it cannot reopen cases once 

a Proposal for Decision has issued. However, none of the cases they cite are 

applicable, as none of them were on remand. A remand reopens a case, and will 

result in a new Proposal for Decision. 
5

The process at SOAH is akin to the process in the court system. If a district 

court receives a request to reconsider an issue or admit new evidence outside of its 

plenary power, it cannot do so. Tex. R. Civ. P. 329b. However, if a case is remanded 

by an appellate court to develop the factual record, the trial court again has the ability 

to admit evidence and make rulings in a case. 

2. SOAH’s interpretation of Rule 155.153 must be given 

deference.

An agency is given deference to its interpretation of its own rules. Sw. 

Pharmacy Solutions, Inc. v. Tex. Health and Human Servs. Comm'n, 408 S.W.3d 

549, 561 (Tex. App.–Austin 2013, pet. denied) (citing R.R. Comm'n v. Tex. Citizens 

for a Safe Future & Clean Water, 336 S.W.3d 619, 629 (Tex. 2011)). It is certainly 

reasonable for SOAH to interpret its rule in a way that allows it to consider additional 

evidence in a remand proceeding when asked by an agency or a court. “Courts 

generally hold that administrative bodies are entitled to and should exercise the 

duties and functions conferred by statute without interference from the courts.” 

Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 785 (Tex. 1978).

B. Audi cannot overcome the SOAH ALJs entitlement to sovereign 

immunity.

As explained above, Audi failed to plead a proper cause of action. However, 

even if it had, it would also be required to demonstrate that the cause of action waives 

the state’s immunity. “A party who sues the State must have an independent waiver 
6

of immunity from suit for each claim in the suit.” State v. Sledge, 36 S.W.3d 152, 

156 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).

Texas courts have held that it is not ultra vires for an agency to incorrectly 

interpret the law; thus, a claim based on this allegation will fail to waive sovereign 

immunity or confer jurisdiction upon the court and may also be held as redundant to 

a suit for judicial review. See Coastal Habitat Alliance v. Pub. Util. Comm’n of Tex.,

294 S.W.3d 276, 285 (Tex. App.—Austin 2009, no pet.); N. Alamo Water Supply 

Corp. v. Tex. Dep’t of Health, 839 S.W.2d 455, 458-59 (Tex. App.—Austin 1992, 

writ denied) (“The fact that the [agency] might decide ‘wrongly’ in the eyes of an 

opposing party does not vitiate the agency’s jurisdiction to make an initial 

decision.”); KEM Tex., Ltd. v. Tex. Dep’t of Transp., No. 03-08-00468-CV, 2009 

WL 1811102 (Tex. App.—Austin Jun. 26, 2009, no pet.)(mem. op.). 

Although Audi recognizes SOAH does have the authority to accept remands 

in certain cases, it argues SOAH should have “honored” section 2001.058(e) of the 

APA by telling the Board that it only has the authority to change a finding, not issue 

a remand. Brief at 41-42. Audi has not explained how failing to handle the situation 

this way is an ultra vires act. Even if Audi’s interpretation of the APA was correct, 
7

the SOAH ALJ’s decision to accept the remand from the DMV could be, at most, an 

incorrect decision, not an ultra vires act. 2

As explained above, misinterpreting the law is not an ultra vires act, and 

sovereign immunity is not waived. Not only has Audi failed to show its 

interpretation of the APA is correct, but it has failed to state an ultra vires claim 

capable of overcoming immunity against the SOAH ALJs even if Audi’s position 

were taken as true. At best, Audi has claimed the SOAH ALJs have misinterpreted 

the law in terms of the remand. This assertion is inadequate to state an ultra vires

claim, and Audi has failed to waive the SOAH ALJs entitlement to sovereign 

immunity. 

C. The trial court was correct in deciding the plea to the jurisdiction 

without looking at additional evidence. 

In Hendee v. Dewhurst, the Third Court of Appeals clearly explained:

It is also well-established that where a trial court’s jurisdiction depends 

upon whether a state official’s acts are within her constitutional or 

statutory authority, such as when a plaintiff alleges ultra vires action to 

avoid sovereign immunity, the trial court may sometimes be able to 

decide the jurisdictional issue as a matter of law based on the pleadings 

by construing the constitutional and statutory provisions defining the 

actor’s authority and ascertaining whether the acts alleged would 

exceed that authority.

 

2

 SOAH disagrees with Audi’s interpretation of Government Code section 2001.058(e). That 

section merely sets out the criteria for an agency to change a finding of fact or conclusion of law, 

or to vacate or modify an order issued by a SOAH ALJ. That section does not otherwise limit the 

authority of a state agency, and specifically does not preclude an agency from remanding a 

contested case hearing to SOAH for further actions.
8

Hendee v. Dewhurst, 228 S.W.3d 354, 368 (Tex. App.—Austin 2007, pet. denied). 

Plaintiffs must plead facts that demonstrate the Defendants acted in contravention of 

constitutional or statutory authority or failed to perform a ministerial act; suits that 

seek to control discretionary decisions are barred. See, e.g., Andrade v. NAACP of 

Austin, 345 S.W.3d 1, 10-12 (Tex. 2011) (failure to plead viable constitutional claim 

bars suit against government entity); Klumb v. Houston Mun. Emps. Pension Sys., 

405 S.W.3d 204, 224 (Tex. App.—Houston [1st Dist.] 2013) aff’d 458 S.W.3d 1

(Tex. 2015) (when “plaintiff’s constitutional claim is facially invalid, the trial court 

must grant a . . . plea to the jurisdiction asserting governmental immunity”); 

Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on Envtl. Quality, 307 

S.W.3d 505, 515-16 (Tex. App.—Austin 2010, no pet.) (“if the plaintiff alleges only 

facts demonstrating acts within the officer’s legal authority and discretion, the claim 

seeks to control state action, and is barred by sovereign immunity”). 

Here, Audi failed to state an ultra vires claim against the SOAH ALJs or 

overcome sovereign immunity as a matter of law, and additional evidence would not

have aided the court in determining whether SOAH can accept a remand from the 

DMV, the only issue in the case against SOAH. The sole issue is whether the SOAH 

rules expressly prohibit remands and if so, whether the SOAH procedural rules can 

form the basis of an ultra vires claim. The issue is purely one of legal interpretation. 
9

Audi’s evidence, mainly related to the procedural history of the underlying case, is 

irrelevant to the very narrow issue here. 

II. The trial court did not err in dismissing Audi’s case because no proper 

ultra vires claim was asserted, and Audi has the opportunity to challenge 

the remand through a suit brought under the APA after exhaustion of 

administrative remedies. 

 

A. Immunity and the exhaustion requirement are not waived if no 

proper ultra vires claim is pled.

For the reasons stated above, Audi’s ultra vires claim against the SOAH ALJs 

is not proper. In addition, the SOAH ALJs are immune to the type of relief requested 

by Audi. Audi asks this Court to declare that the SOAH ALJs have committed ultra 

vires acts by 1) reopening the record; 2) considering untimely evidence; 

3) conducting a remand hearing; and 4) conducting the remand procedure on a 

compressed schedule. Brief at 39. A judgment declaring these acts to be ultra vires

would be barred by sovereign immunity. 

B. Even if a proper ultra vires claim is pled, sovereign immunity 

is only waived for claims for prospective injunctive relief.

As the state’s waiver of immunity for ultra vires claims is limited to 

prospective injunctive relief, an order declaring this previous act to be ultra vires

would be retrospective relief, and thus barred by sovereign immunity. City of El 

Paso v. Heinrich, 284 S.W.3d at 376. 

Rule 155.153 says: 

(a) Judge’s authority and duties. The judge shall have the authority and duty to:
10

(1) conduct a full, fair, and efficient hearing;

(2) take action to avoid unnecessary delay in the disposition of the proceeding;

(3) maintain order; and

(4) reopen the record when justice requires, if the judge has not issued a 

dismissal, proposal for decision, or final decision.

1 TEX. ADMIN. CODE § 155.153 (2008) (State Office of Admin. Hearings, Rules of 

Procedure

The rule only involves SOAH’s ability to reopen the record. The record has 

already been reopened and closed again. State Office of Admin. Hearings, In the 

Matter of Ricardo M. Weitz, et al. v. Volkswagen Group of America, Inc., et al., 

SOAH Docket No. 0608-13-4599.LIC, Remand Order No. 15 (Jun. 16, 2015)

(remand order closing the record).3 As the state’s waiver of immunity for ultra vires

claims is limited to prospective injunctive relief, an order declaring this previous act 

to be ultra vires would be retrospective relief, and thus barred by sovereign 

immunity. City of El Paso v. Heinrich, 284 S.W.3d at 376.

Audi has not stated a proper ultra vires claim, and its claim against the SOAH 

ALJs is redundant to a suit for judicial review. To complain about the SOAH ALJs’

rulings, Audi must exhaust its administrative remedies before challenging those 

orders in district court. 

Audi has a right to judicial review of the final decision that will be issued in 

the pending contested case, pursuant to section 2001.171 of the Administrative 

 

3 The second PFD was issued on August 13, 2015. The parties will now have the opportunity to 

file exceptions to the PFD in the SOAH case.
11

Procedure Act (APA). However, that right accrues only to a person “who is 

aggrieved by a final decision in a contested case” and “who has exhausted all 

administrative remedies.” Tex. Gov’t Code § 2001.171. Upon such a judicial review 

after the DMV issues its final decision in this case, section 2001.174 of the APA 

provides for reversal or remand of a decision in a contested case if the substantial 

rights of the appellant have been prejudiced because the decision was entered in 

violation of a constitutional or statutory provision. Tex. Gov’t Code 

§ 2001.174(2)(A). 

C. Audi’s claims are properly brought in a suit for judicial review 

after exhaustion of administrative remedies. 

If Audi is dissatisfied with this PFD and the subsequent final decision issued

by the DMV, it will have a chance to argue and develop its case through a suit for 

judicial review in district court under the Administrative Procedure Act. Audi can 

then argue that the remand was improper. If it is dissatisfied with the actions of the 

district court, it will once again have the opportunity to appeal to this Court. This 

Court will, ultimately, have the opportunity to rule on whether the remand was 

proper. 

CONCLUSION AND PRAYER

For the reasons stated above, SOAH ALJs ask this Court to affirm the trial 

court’s granting of the SOAH ALJ’s Plea to the Jurisdiction.
12

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

SHELLEY DAHLBERG

Associate Deputy Attorney General for Civil 

Litigation

DAVID A. TALBOT, JR.

Chief, Administrative Law Division

/s/ Kimberly L. Fuchs

KIMBERLY L. FUCHS

State Bar No. 24044140

Administrative Law Division

Office of the Attorney General of Texas

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

Telephone: (512) 475-4195

Facsimile: (512) 320-0167

kimberly.fuchs@texasattorneygeneral.gov

ATTORNEYS FOR APPELLEES, 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
13

CERTIFICATE OF COMPLIANCE

I certify that the Brief of Appellees O’Malley and Wilkov submitted complies 

with Rule 9 of the Texas Rules of Appellate Procedure and the word count of this 

document is 2,654. The word processing software used to prepare this filing and 

calculate the word count of the document is Microsoft Word 2013. 

Date: August 14, 2014

/s/ Kimberly L. Fuchs

KIMBERLY L. FUCHS

Attorney for Appellees 

SOAH Administrative Law Judges 

O’Malley and Wilkov

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Brief of Appellees 

O’Malley and Wilkov has been served on August 14, 2015, on the following parties

and/or counsel-of-record via electronic transmission, e-mail and/or facsimile:

S. Shawn Stephens

Texas Bar No. 19160060

James P. Sullivan

Texas Bar No. 24070702

King & Spalding LLP

1100 Louisiana, Suite 4000

Houston, Texas 77002

Telephone: (713) 751-3200

Facsimile: (713) 751-3290

sstephens@kslaw.com

jsullivan@kslaw.com

Attorneys for Appellants

Volkswagen Group of Americas, Inc.

and Audi of America, Inc.

J. Bruce Bennett

State Bar No. 02145500

Cardwell, Hart & Bennett, LLP

807 Brazos, Suite 1001

Austin, Texas 78701

Telephone: (512) 322-0011

Facsimile: (512) 322-0808

jbb.chblaw@sbcglobal.net

Attorneys for Appellees

Ricardo M. Weitz, Hi Tech Imports North, 

LLC, Hi Tech Imports South, LLC, and 

Hi Tech Imports, LLC
14

Billy M. Donley

State Bar No. 05977085

Mark E. Smith

State Bar No. 24070639

Baker & Hostetler LLP

811 Main Street, Suite 1100

Houston, Texas 77002

Telephone: (713) 751-1600

Facsimile: (713) 751-1717

bdonley@bakerlaw.com

mesmith@bakerlaw.com

Attorneys for Appellants

Volkswagen Group of Americas, Inc.

and Audi of America, Inc.

Joseph W. Letzer

State Bar No. 24030763

Dent M. Morton

State Bar No. 24056645

Burr & Forman, LLP

420 20TH Street N, Suite 3400

Birmingham, AL 35203-5210

Telephone:(205) 251-3000

Facsimile: (205) 458-5100

jletzer@burr.com

dmorton@burr.com

Attorneys for Appellees

Ricardo M. Weitz, Hi Tech Imports North, 

LLC, Hi Tech Imports South, LLC, and 

Hi Tech Imports, LLC

William R. Crocker

State Bar No. 5091000 

Attorney at Law

807 Brazos, Ste 1014

Austin, Texas 78701

P.O. Box 1418

Austin, Texas 78767

Telephone: (512) 478-5611

Facsimile: (512) 474-2540

crockerlaw@earthlink.net

Attorney for Appellee

Budget Leasing, Inc. d/b/a 

Audi North Austin and 

Audi South Austin

Dennis McKinney

State Bar No. 13719300

Assistant Attorney General

Administrative Law Division

Office of the Attorney General of Texas

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

Telephone:(512) 475-4020

Facsimile: (512) 320-0167

dennis.mckinney@texasattorneygeneral.gov

Attorney for Appellee

John Walker III, in his official capacity as

Chairman of the Texas Department of 

Motor Vehicles Board

/s/ Kimberly L. Fuchs

KIMBERLY L. FUCHS

Attorney for Appellees 

SOAH Administrative Law Judges 

O’Malley and Wilkov