## No. 03

- 15

- 00 528

- CV 

# In the Third Court of Appeals Austin, Texas

T EXAS 

### E DUCATION 

### A GENCY AND 

### M ICHAEL 

### W ILLIAMS 

### , C OMMISSIONER OF 

### E DUCATION 

### , IN 

### H IS 

### O FFICIAL 

### C APACITY 

### , Appellants

v. A CADEMY OF 

### C AREERS AND 

### T ECHNOLOGIES 

### , I NC 

### . D 

### / B 

### / A 

### A CADEMY OF 

### C AREERS AND 

### T ECHNOLOGIES 

### C HARTER 

### S CHOOL 

### , Appellee

A CCELERATED 

### A PPEAL FROM 

### C AUSE 

### N O



### . D

- 1

- GN

- 15

- 002879 200 TH 

### J UDICIAL 

### D ISTRICT 

### C OURT OF 

### T RAVIS 

### C OUNTY 

### , T EXAS



### APPELLEE ’ S MOTION TO DISMISS ACCELERATED APPEAL FOR WANT OF JURISDIC TION

TO THE HONORABLE THIRD COURT OF APPEALS: Appellee Academy of Careers and Technologies, Inc. d/b/a Academy of
Careers and Tec hnologies Charter School files this motion asking the Court to dismiss this appeal for want of jurisdiction.
1. Appellants are the Texas Education Agency and Michael Williams,
Commissioner of Education (collectively “ TEA ” ) . Appellee is the Academy of ACCEPTED 03-15-00528-CV 6736273 THIRD COURT OF APPEALS

AUSTIN, TEXAS 9/1/2015 8:39:23 AM JEFFREY D. KYLE

CLERK

### 2 

### Careers and Technologies, Inc. d/b/a Academy of Careers and Technologies
Charter School ( “ ACT ” )

. 2. On August 21, 2015, TEA filed a notice o f accelerated appeal to challenge a n order

— p urportedly signed the same date

— denying its plea to the jurisdiction and granting a temporary injunction

. See Exhibit A. In a docketing

statement filed four days later, T EA again claimed to be appealing an order si gned on August 21, 2015

. 3. ACT ’ s undersigned counsel was not involved in the proceedings
below. From reviewing the district court ’ s file and communicating with the trial judge ’ s staff, the undersigned has learned that no order granting a temporary injunction or denying a plea to the jurisdiction was signed on August 2 1, 2015 or
afterward through th e date of this filing

. 1 

### Thus, this appeal is premature. A prematurely filed notice of appeal has no effect until the appellate deadline is triggered and therefore does not vest this C ourt with jurisdiction

. See T EX



### . R. A PP



### . P. 25.1(b), 27.1(a).
4. Ordinarily, the Court m ight allow an appellant time to cure this sort of jurisdictional defect. See , e.g. , Smith Cnty. v. Popovac , No. 12

- 11

- 00329

- CV, 2011 WL 6119266, at *1 (Tex. App.

— Tyler Dec. 7, 2011 , no pet. ) (mem. op.)

1 The appellate record was due on August 31, 2015 . Based on the se observations , the record is not expected to contain the order TEA is purportedly appealing.

### 3 

### (dismissing appeal from purported denial of plea to jurisdiction when trial court had not yet memorialized its rul ing in writin g and appellant could not cure defect).

But t he Court should not follow that course here. By asserting that appellate jurisdic tion has attached

— incorrectly and perhaps even deliberately so

— TEA
seeks to pre vent the trial court from taking any further action while the case is on appeal

. 2 

### See Exhibit A at 2 ( asserting that alleged temporary injunction is automatically stayed while a ppeal remains pending and that , by virtue of purported challenge to denial of its jurisdictional plea, all proceedings before trial court a re stayed pending resolution of appeal )

. Compare In re State Bd. F or Educator Certification , 452 S.W.3d 802, 808

- 10 (Tex. 2014) ( orig. proceeding ) ( holding that governmental entity ’ s notice of appeal does not deprive trial court of discretion to deny supersedeas ) , with In re Tex. Educ. Agency , 441 S.W.3d 747, 750 (Tex. App.

— Austin 2014, orig. proceeding [mand. d enied] ) ( holding that district court abused discretion by holding hearing and granting charter schools ’ motion to deny supersedeas after TEA filed notice of appeal and invoked statutory stay that attaches when trial court denies pl ea to jurisdiction)

. This Court should not allow

TEA to create a perception in the trial court or elsewhere that its premature notice
of accelerated appeal could have such an effect.

2 Ironically, if TEA is correct and the proceedings below are already stayed, then the trial court arguably lacks the ability to sign the very order TEA has prematurely sought to appeal.

### 4 

### CONCLUSION AND PRAYE R Appell ee respectfully request s that the Court grant this motion and dismiss this appeal for want of jurisdiction

. Appell ee request s all other appropriate relief to
which it is entitled. Respectfully submitted,


### S MITH 

### L AW 

### G ROUP 

### LLLP 1250 Capital of Texas H ighway South Three Cielo Center, Suite 601 Aus tin, Texas 78746 (512) 439

- 3230 (512) 439

- 3232 (fax) By: /s/D. Todd Smith D. Todd Smith State Bar No. 00797451 todd@appealsplus.com Counsel for Appellee
, Academy of Careers and Technologies, Inc. d/b/a Academy of Careers and Tec hnologies Charter School
CERTIFICATE OF CONFE RENCE In compliance with Texas Rule of Appellate Procedure 10.1(a)(5), I certify
that I attempted to confer with Erika Laremont, lead appellate counsel for Appell ants, but was unable to reach her before filing this motion. Giv en the relief requested, appellee presume s the motion would be opposed.
/s/D. Todd Smith D. Todd Smith

### 5 

### CERTIFICATE OF SERVICE
On September 1, 2015, in compliance with Texas Rule of Appellate Procedure 9.5, I served this document by e - service, e

- mail, facsimile, or mail to:
Erika M. Laremont erika.laremont@texasattorneygeneral.gov Assistant Attorney General General Litigation Division P.O. Box 12548 Au stin, Texas 78711

- 2548 Counsel for Appellant
/s/ D. Todd Smith D. Todd SmithCAUSE NO. D

- 1

- GN

- 15

- 002879

ACADEMY OF CAREERS AND TECHNOLOGIES INC. d/b/a ACADEMY OF CAREERS AND TECHNOLOGIES CHARTER SCHOOL Plaintiff ,

v.
TEXAS EDUCATION AGENCY and MICHAEL WILLIAMS in his Official Capacity as the Commissioner of Education Defendants. § § § § § § § § § § § § IN THE DISTRICT COURT

98 th JUDICIAL DISTRICT

TRAVIS COUNTY, TEXAS

DEFENDANTS’ NOTICE OF ACCELERATED APPEAL AND NOTICE OF AUTOMATIC STAY

T O THE H ONORABLE D ISTRICT C OURT J UDGE :
Defendants the Texas Education Agency and Michael L. Williams, Commissioner of
Education, in his Official Capacity , (“Defendants”) file this Notice of Accelerated Appeal of the
Court’s O rder of the 200 th District Court of Travis County, the Honorable Gisela D. Triana presiding, signed August 21, 2015, in the above

- referenced cause of action which denied
Defendants’ Plea to the Jurisdiction and granted Plaintiff’s temporary injunction. Defendants are entitled to this interlocutory appeal pursuant to T EX

. C IV

. P R AC

. & R EM
C ODE R EM

. C ODE § 51.014(a) (4) and (8), which allows appeal from a district court’s interlocutory
order granting a temporary injunction or order denying a governmental unit’s plea to the jurisdiction. This appea l involves issues similar to those raised in two other matter s involving three
charter schools

— American Youthworks Charter School, Honors Academy, and Azleway CharterSchool

— which are currently on appeal in the Court of Appeals for the Third Judicial District,
Austin, Texas, Nos. 03

- 14

- 00283

- CV and 03

- 14

- 00360

- CV.
ACCELERATED APPEAL

Pursuant to T EX

. R. A PP

. P. 25.1(d)(6) and 28.1(a), Defendants give notice that this is an accelerated appeal to the Third District Court of Appeals , as it is an appeal of an interlocutory order allowed as of right by statute. See T EX

. C IV

. P RAC

. & R EM

. C ODE §§ 51.014(a)(4), (8).

NOTICE OF STAY OF ALL PROCEEDINGS IN TRIAL COURT PENDING RESOLUTION OF THIS APPEAL
Defendants invoke T EX

. R. A PP

. P. § 29.1(b) and T EX

. C IV

. P RAC

. & R EM

. C ODE § 6.001 by this Notice of Accelerated Appeal, thereby staying the Order awarding a temporary injunction. See Public Utility Com’n of Texas v. Coalition of Cities for Affordable Utility Rates , 776 S.W.2d 221 (Tex.App

. — Austin 1989) rev’d on other grounds by 798 S.W.2d 560 (pendency of an appeal from an order granting interlocutory relief suspends order appealed from when appellant not required to post bond). In light of Defendants’ denied jurisdictional challenge, the y further invoke

T EX

. C IV

. P RAC

. & R EM

. C ODE § 51.014 (b) to stay “all other proceedings in the trial court pending resolution” of this appeal of the August 21, 2015 Order.

D E F E ND A N T S AR E N OT R E Q U I R E D T O POST A C O S T B O N D
N oti c e is f u r th e r g iv e n th a t pu r su a nt to T EX

. C IV

. P RAC

. & R EM

. C ODE § 6.001,
Defe n d a nts a r e not re qu i re d to f ile a bond for court costs

. D e f e nd a nts’ a p p ea l is t h er e f o r e

p er f ec t e d upon the f iling of the noti c e of a pp ea l.

2Respectfully submitted,

KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
JAMES E. DAVIS Deputy Attorney General for Civil Litigation
ANGELA V. COLMENERO Division Chief

- General Litigation

/ s/ Erika M. Laremont ERIKA M. LAREMONT State Bar No. 24013003 Assistant Attorney General General Litigation Division Post Office Box 12548, Capitol Station Austin, Texas 78711

- 2548 512

- 463

- 2120 (Telephone) 512

- 320

- 0667 (Facsimile) erika.laremont@texasattorneygeneral.gov ATTORNEYS FOR DEFENDANTS

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing instrument has been sent via File & ServeXpress and electronic mail on this the 21 st day of Augu st , 2015, to: Ryan Henry 1380 Pantheon Way, Ste 215 San Antonio, TX 78232 Austin, TX 78701 (210) 569

- 6494 facsimile / s/ Erika M. Laremont ERIKA M. LAREMONT

3