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 

APPELLEES O’MALLEY AND WILKOV’S RESPONSE TO

APPELLANTS’ VERIFIED MOTION FOR TEMPORARY RELIEF

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

June 26, 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

5846601

THIRD COURT OF APPEALS

AUSTIN, TEXAS

6/26/2015 3:32:15 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 6/26/2015 3:32:15 PM JEFFREY D. KYLE Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

APPELLANTS:

Volkswagen Group of America, Inc., 

and Audi of America, Inc.

COUNSEL: 

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

BILLY M. DONLEY

Texas Bar No. 05977085

MARK E. SMITH

Texas 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

APPELLEE:

John Walker, III

in his official capacity as

Chairman of the Texas Department of 

Motor Vehicles Board

COUNSEL: 

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
iii

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

COUNSEL: 

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

APPELLEES:

Budget Leasing, Inc. d/b/a 

Audi North Austin and 

Audi South Austin

COUNSEL:

WM. 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

APPELLEES:

Ricardo M. Weitz, Hi Tech Imports 

North, LLC, Hi Tech Imports South, 

LLC, and Hi Tech Imports, LLC

COUNSEL:

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

and
iv

COUNSEL:

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

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.” 
v

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

REFERENCE TO THE PARTIES .......................................................................... iv

TABLE OF CONTENTS...........................................................................................v

INTRODUCTION .....................................................................................................1

ARGUMENT.............................................................................................................2

A. TRAP 29.3 is inapplicable to this case............................................................2

B. The Court’s power to issue a Writ of Injunction is circumscribed by the 

Texas Constitution...........................................................................................3

C. Audi has little realistic chance of prevailing in its underlying case because 

its ultra vires claims against the SOAH ALJs are meritless. ..........................6

CONCLUSION AND PRAYER .............................................................................11

CERTIFICATE OF COMPLIANCE.......................................................................12

CERTIFICATE OF SERVICE ................................................................................12
vi

INDEX OF AUTHORITIES

CASES

Andrade v. NAACP of Austin, 

345 S.W.3d 1 (Tex. 2011)..........................................................................................9

Baird v. Sam Houston Elec. Coop, 627 S.W.2d 732 

(Tex. App.—Houston [1st Dist.] 1981, no writ)........................................................6

City of El Paso v. Heinrich,

284 S.W.3d 366 (Tex. 2009)..................................................................................5, 7

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

294 S.W.3d 276 (Tex. App.—Austin 2009, no pet.).................................................9

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

307 S.W.3d 505 (Tex. App.—Austin 2010, no pet.)...............................................10

Foster v. Tex. Dep’t of Criminal Justice, 

344 S.W.3d 543 (Tex. App.—Austin 2011, pet. denied) ........................................10

Hendee v. Dewhurst, 

228 S.W.3d 354 (Tex. App.—Austin 2007, pet. denied) ..........................................9

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.)...............................................................9

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

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

aff’d, 458 S.W.3d 1 (Tex. 2015)..............................................................................10

Madison v. Martinez, 

42 S.W.2d 84 (Tex. Civ. App.—Dallas 1931, writ ref’d) .........................................3
vii

Mote Res. Inc. v. R.R. Comm’n of Tex., 

618 S.W.2d 877 (Tex. Civ. App.—Austin 1981, no writ).........................................5

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

839 S.W.2d 455 (Tex. App.—Austin 1992, writ denied)..........................................9

State v. Sledge, 

36 S.W.3d 152 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) ........................8

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

408 S.W.3d 549 (Tex. App.—Austin 2013, pet. denied) ..........................................8

Tex. Dep’t of Transp. v. Kyle, 

No. 04-06-00762-CV, 2007 WL 1346555 

(Tex. App.—San Antonio May 9, 2007, pet. denied)..............................................10

Tex. Workers Comp. Comm’n v. Horton, 

187 S.W.3d 282 (Tex. App.—Beaumont 2006, no pet.) .........................................10

Westheimer Indep. Sch. Dist. v. Brockette, 

567 S.W.2d 780 (Tex. 1978)......................................................................................8

STATE OFFICE OF ADMINISTRATIVE HEARINGS ORDERS

1

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

et al., SOAH Docket No. 608-13-4599.LIC, 

Remand Order No. 15 (Jun. 16, 2015).......................................................................4

RULES

Tex. R. App. P. 29.3...................................................................................................2

Tex. R. Civ. P. 329b...................................................................................................8

 

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©.
viii

CONSTITUTIONAL PROVISIONS

Tex. Const. Art. V § 6(a) ..........................................................................................3
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

Appellees Michael J. O’Malley and Penny A. Wilkov object to Appellants’ 

motion for temporary relief because the ultimate subject matter of the appeal will 

not be moot if temporary relief does not issue, and Audi’s claim for relief lacks merit. 

SOAH has not committed any ultra vires acts, and Audi will have a right to judicial 

review of any final order issued by the DMV.

INTRODUCTION

Audi alleges the ALJs violated SOAH procedural Rule 155.153 by accepting 

a case remanded to them by the Department of Motor Vehicles (DMV). The rule at 

issue states that an Administrative Law Judge may reopen evidence in a case if the 

Proposal for Decision (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 considering cases on remand. The ALJs have not committed ultra vires acts, 

and Audi’s claim fails on its face. The trial court rightly granted the Plea to the 

Jurisdiction.

Additionally, temporary orders are an extraordinary remedy and are not 

needed or justified in this case. The ultimate subject matter in this case revolves 

around whether the remand from DMV to SOAH was proper and whether the ALJs 

properly reopened the evidence on remand. These issues can be raised, if necessary, 

in a properly filed suit for judicial review under the Administrative Procedure Act 
2

(APA), but before this occurs, the administrative procedure must be permitted to 

conclude. 

ARGUMENT

A. TRAP 29.3 is inapplicable to this case.

As a preliminary matter, Audi brings its motion under Rule of Appellate 

Procedure 29.3. However, Rule 29.3 does not apply.

Rule of Appellate Procedure 29.3 provides:

When an appeal from an interlocutory order is perfected, the appellate 

court may make any temporary orders necessary to preserve the parties’ 

rights until disposition of the appeal and may require appropriate 

security. But the appellate court must not suspend the trial court’s order 

if the appellant’s rights would be adequately protected by supersedeas 

or another order made under Rule 24.

TEX. R. APP. P. 29.3. 

The lower court granted both Defendant Walker’s Plea to the Jurisdiction and 

Defendants O’Malley and Wilkov’s Plea to the Jurisdiction, disposing of all parties 

and claims to the litigation. C.R. 2030-31. These orders did not constitute 

interlocutory orders, but rather final orders. C.R. 2030-34; 2049. Therefore, Rule 

29.3 does not apply.
3

B. The Court’s power to issue a Writ of Injunction is circumscribed 

by the Texas Constitution.

Despite the inapplicability of Rule 29.3, this Court does possess the authority 

to issue temporary orders, but the scope of this authority is narrower than that granted 

to the Courts under the appellate rule. The Texas Constitution limits the Court’s 

inherent authority to issue relief against the parties to a pending appeal. That inherent 

authority extends only to orders that protect appellate jurisdiction. TEX. CONST. art. 

V § 6(a); e.g., Madison v. Martinez, 42 S.W.2d 84, 86 (Tex. Civ. App.—Dallas 1931, 

writ ref’d). This grant of authority does not establish a right on the part of any party, 

it is within the discretion of the Court. Madison v. Martinez, 42 S.W.2d at 86 

(“Courts of Civil Appeals and the judges thereof “may issue writs of mandamus and 

all other writs necessary to enforce the jurisdiction of said courts.””). To the extent 

the Court seeks to protect its jurisdiction, it may issue writs of injunction, to the 

parties, and prohibition, to the lower courts. 

In this case, while the specific alleged ultra vires claim against SOAH may 

become moot during the pendency of the appeal, the Court will not lose its 

jurisdiction over the underlying subject matter. This case ultimately involves 

whether the DMV properly remanded this case to SOAH and whether the ALJs 

properly accepted the remand. This Court will not lose its ability to make a decision 

on this issue. 
4

The ALJs have already re-opened and re-closed the record, and they will soon 

issue a new PFD. If Audi is dissatisfied with this PFD and the subsequent actions 

taken 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. 

Although Audi claims this court needs to issue extraordinary relief to preserve 

its claims that SOAH committed an ultra vires act by reopening the record in 

violation of Rule 155.153, this claim is already moot. Rule 155.153 says: 

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

(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. 608-13-4599.LIC, Remand Order No. 15 (Jun. 16, 2015)
5

(remand order closing the record). 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 366, 376 (Tex. 2009). 

The larger issue, whether the remand was proper, will not be moot for failure 

to issue a temporary order. What Audi is really asking for is an injunction preventing 

SOAH from issuing a second PFD. Audi has failed to plead a proper cause of action 

for this type of relief. 

Therefore, Audi’s request for an injunction barring the ALJs from issuing a 

new PFD is not proper under the constitutional standard. The situations in which 

the use of such an extraordinary remedy is proper include only those situations in 

which the Court will not have the ability to rule on the ultimate subject matter 

without such relief. A writ of injunction is appropriate, for example, to prevent the 

sale of real property to which a party asserts a present right that will not cease to 

exist unless and until a court rules on the substance of the lawsuit. E.g., Mote Res.

Inc. v. R.R. Comm’n of Tex., 618 S.W.2d 877, 879 (Tex. Civ. App.—Austin 1981, 

no writ) (issuing appellate injunction for deprivation of title to oil and gas produced 

under the rule of capture, because property interest in captured minerals would not 

be extinguished, if at all, until final judgment). 
6

This grant of authority is significantly more constrained than the trial court’s 

authority, in the exercise of plenary jurisdiction, to issue a temporary injunction 

order preserving the status quo ante. See Baird v. Sam Houston Elec. Coop, 627 

S.W.2d 732, 733-34 (Tex. App.—Houston [1st Dist.] 1981, no writ). The Court 

lacks authority to issue the writ merely to preserve the parties from alleged harm 

pending appeal. Id. 

In the instant case, the effect of the refusal of the district court to grant 

temporary relief would result only in a delay in having the remand issue considered, 

leaving the subject matter of the appeal in such a condition that the judgment of this 

court could effectively operate thereon. Therefore, this Court is without jurisdiction 

to grant such relief, because its jurisdiction over the subject matter of the appeal 

would not be invaded by failure to grant the relief. To the extent this Court decides 

it does have jurisdiction to issue the requested orders, ALJs O’Malley and Wilkov 

ask this Court to decline to issue an injunction, as Audi will have an opportunity to 

challenge the remand at a later time. 

C. Audi has little realistic chance of prevailing in its underlying case 

because its ultra vires claims against the SOAH ALJs are meritless.

To the extent this Court’s jurisdiction to enter Audi’s requested order is 

proper, this Court should decline jurisdiction because Audi’s underlying claim 

against the SOAH ALJs is meritless. 
7

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 at 372. Audi claims the SOAH ALJs violated SOAH’s

Procedural Rule 155.153 by accepting a case remanded to SOAH. Although the 

ALJs do not dispute that substantive Agency Rules are generally treated like statutes, 

at least in matters of statutory construction, Audi has pointed to no precedent 

indicating that violation of a procedural rule can -form the basis of an ultra vires

claim. 

SOAH has always interpreted Rule 155.153 to mean its ALJs 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 

can show that the ALJs’ interpretation of this rule is inconsistent with their statutory

authority. Audi has made no attempt to do so.

Audi cited no cases holding that Rule 155.153 prevents remands. In fact, the 

legislature specifically contemplated SOAH evaluating new evidence on remand. 

(See Tex. Gov’t Code § 2001.175(c), which authorizes a district court to order 

SOAH to consider evidence not already in the record.) The process at SOAH is akin 

to the process in the court system. If a district court receives a request to reconsider 
8

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. 

Further, 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).

Further, in order to state a claim against the ALJs, not only must the 

Appellants specifically state a cause of action, they must also demonstrate that the 

cause of action waives the state’s immunity. “A party who sues the State must have 

an independent waiver 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 
9

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.). Because Audi 

has failed to state an ultra vires claim, it has also failed to waive the SOAH ALJs 

entitlement to sovereign immunity. 

In Hendee v. Dewhurst, this Court clearly explained this principle, opining:

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.

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

Audi must plead facts that demonstrate the ALJs 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 
10

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”).

And, if the claim is subject to dismissal, it is an improper basis for temporary 

relief by either the trial court or the court of appeals. The lack of an ultra vires act 

implicates subject-matter jurisdiction over the underlying lawsuit. If a party 

successfully challenges subject-matter jurisdiction in a temporary injunction 

proceeding, no temporary relief can issue. Foster v. Tex. Dep’t of Criminal Justice, 

344 S.W.3d 543, 549 (Tex. App.—Austin 2011, pet. denied) (no temporary 

injunction if underlying claim is barred); see also Tex. Dep’t of Transp. v. Kyle, No. 

04-06-00762-CV, 2007 WL 1346555, at *7 (Tex. App.—San Antonio May 9, 2007, 

pet. denied) (mem. op.); Tex. Workers Comp. Comm’n v. Horton, 187 S.W.3d 282, 

290 (Tex. App.—Beaumont 2006, no pet.) Likewise, an appellate court cannot issue 

interim relief in a case over which it has no jurisdiction.
11

CONCLUSION AND PRAYER

For the reasons stated above, SOAH ALJs ask this Court to deny Appellants’ 

motion for temporary relief.

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 Fuchs

KIMBERLY 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
12

CERTIFICATE OF COMPLIANCE

I certify that the Response submitted by Defendants O’Malley and Wilkov of 

the State Office of Administrative Hearings complies with Rule 9 of the Texas Rules 

of Appellate Procedure and the word count of this document is 2,562. The word 

processing software used to prepare this filing and calculate the word count of the 

document is Microsoft Word 2013. 

Date: June 26, 2015

/s/ Kimberly Fuchs

KIMBERLY FUCHS

ATTORNEY FOR DEFENDANT

STATE OFFICE OF ADMINISTRATIVE 

HEARINGS

CERTIFICATE OF SERVICE

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

O’Malley and Wilkov’s Response to Appellants’ Verified Motion for Temporary 

Relief has been served on June 26, 2015, on the following parties and/or counsel-ofrecord 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

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
13

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 Fuchs

KIMBERLY FUCHS

ATTORNEY FOR APPELLEES 

SOAH ADMINISTRATIVE LAW JUDGES 

O’MALLEY AND WILKOV