## No. 03-16-00070-CV

In the Third Court of Appeals Austin, Texas

TEXAS HORSEMEN'S PARTNERSHIP, 

## LLP,

Plaintiff/ Appellee,

v.
GLENN HEGAR, IN HIS OFFICIAL CAPACITY AS THE TEXAS COMPTROLLER OF

PUBLIC ACCOUNTS, AND THE STATE OF TEXAS,

Defendants/Appellants.



## Motion to Remand, or in the Alternative, to Dismiss for

Lack of Jurisdiction

To THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS: Pursuant to Texas Rule of Appellate Procedure 10, Plaintiff/Appellee Texas Horsemen's Partnership, LLP (the "Horsemen's Partnership") respectfully files this Motion to Remand, or in the Alternative, to Dismiss for Lack of Jurisdiction. On June 1, 2016, the Horsemen's Partnership filed a Notice of Nonsuit Without Prejudice in the trial court, nonsuiting all claims against Defendants/Appellants Glenn Hegar, in his official capacity as the Texas 1

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Gardere01 - 8745155v.1 

## No. 03

- 16 -00070- CV

_____________________________________________________________

In the Third Court of Appeals Austin, Texas

_____________________________________________________________

T EXAS H ORSEMEN ’ S P ARTNERSHIP , LLP ,

Plaintiff/Appellee,

v. G LENN H EGAR , IN HIS O FFICIAL C APACITY AS THE T EXAS C OMPTROLLER OF

P UBLIC A CCOUNTS , AND THE S TATE OF T EXAS ,

Defendants/Appellants.

_____________________________________________________________ 

## Motion to Remand, or in the Alternative, to Dismiss for

Lack of Jurisdiction

_____________________________________________________________ T O THE H ONORABLE J USTICES OF THE T HIRD C OURT OF A PPEALS : Pursuant to Texas Rule of Appellate Procedure 10, Plaintiff/Appellee Texas Horsemen’s Partnership, LLP (the “Horsemen’s Partnership”) respectfully files this Motion to Remand, or in the Alternative, to Dismiss for Lack of Jurisdiction.
On June 1 , 2016, the Horsemen’s Partnership filed a Notice of Nonsuit Without Prejudice in the trial court, nonsuiting all claims against Defendants/Appellants Glenn Hegar, in his official capacity as the Texas ACCEPTED 03-16-00070-CV 10931800 THIRD COURT OF APPEALS

AUSTIN, TEXAS 6/2/2016 9:41:45 AM JEFFREY D. KYLE

CLERKComptroller of Public Accounts, and the State of Texas. A True and Correct Copy

of the Notice of Nonsuit is attached hereto as Exhibit A. The Horsemen's Partnership's Notice of Nonsuit became effective immediately when it was filed and it completely extinguished the underlying case or controversy between the parties. See, e.g., University of Tex. Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98, 100 (Tex. 2006). Accordingly, this Court lacks jurisdiction over this interlocutory appeal. Id. at 99-101. Because there is no longer a justiciable controversy between the parties, the Horsemen's Partnership respectfully requests that the Court remand this case to the trial court so that the trial court can perform the ministerial duty of entering an order dismissing the case. Alternatively, the Horsemen's Partnership respectfully requests that the Court dismiss this interlocutory appeal for lack of jurisdiction.

Respectfully submitted, GARDERE WYNNE SEWELL LLP
By: 

### /s/ David G. Cabrales David G. Cabrales Texas Bar No. 00787179 dcabrales@gardere.com Lucas C. Wohlford Texas Bar No. 24070871 lwohlford@gardere.com Calli A. Turner Texas Bar No. 24088558 2

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- 8745155v.1 Comptroller of Public Accounts, and the State of Texa s. A True and Correct Copy of the Notice of Nonsuit is attached hereto as Exhibit A

. The Horsemen’s Partnership’s Notice of Nonsuit became effective immediately when it was filed and it completely extinguished the underlying case or controversy between t he parties. See, e.g., University of Tex. Med. Branch at Galveston v. Estate of Blackmon , 195 S.W.3d 98, 100 (Tex. 2006). Accordingly, this Court lacks jurisdiction over this interlocutory appeal. Id. at 99

- 101. Because there is no longer a justiciabl e controversy between the parties, the Horsemen’s Partnership respectfully requests that the Court remand this case to the
trial court so that the trial court can perform the ministerial duty of entering an order dismissing the case. Alternatively, the Horsemen’s Partnership respectfully requests that the Court dismiss this interlocutory ap peal for lack of jurisdiction.

Respectfully submitted, GARDERE W

YNNE SEWELL LLP By: /s/ David G. Cabrales David G. Cabrales Texas Bar No. 00787179 dcabrales@gardere.com Lucas C. Wohlford Texas Bar No. 24070871 lwohlford@gardere.com Calli A. Turner Texas Bar No. 24088558

### cturner@gardere.com Gardere Wynne Sewell LLP 3000 Thanksgiving Tower 1601 Elm Street Dallas, Texas 75201 Telephone: (214) 999-3000 Facsimile: (214) 999-4667 ATTORNEYS FOR PLAINTIFF/APPELLEE TEXAS HORSEMEN'S PARTNERSHIP, LLP

CERTIFICATE OF SERVICE 

### By my signature below, I hereby certify that a true and correct copy of the above and foregoing was served on all counsel of record via the Court's electronic filing system on June 1, 2016 and again on June 2, 2016.

/s/ David G. Cabrales David G. Cabrales

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- 8745155v.1 ATTORNEYS FOR PLAINTIFF/APPELLEE TEXAS HORSEMEN’S PARTNERSHIP, LLP

CERTIFICATE OF SERVICE By my signature below, I hereby certify that a true and correct copy of the above and foregoing was served on all counsel of record via the Court’s electronic filing system on June 1 , 2016 and again on June 2, 2016

.
/s/ David G. Cabrales David G. Cabrales cturner@gardere.com Gardere Wynne Sewell LLP 3000 Thanksgiving Tower 1601 Elm Street Dallas, Texas 75201 Telephone: (214) 999

- 3000 Facsimile: (214) 999

- 4667CERTIFICATE OF CONFERENCE



### Pursuant to Texas Rule of Appellate Procedure 10.1(a)(5), I certify that on June 1, 2016, I attempted to confer with counsel for Defendants/Appellants regarding the merits of this Motion and whether Defendants/Appellants oppose the Motion. Counsel for Defendants/Appellants informed me via voicemail that they are opposed to Plaintiff/Appellee's request for remand but are unopposed to Plaintiff/Appellee's request to dismiss this appeal. /s/ Lucas C. Wohlford Lucas C. Wohlford

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Gardere01

- 8745155v.1 CERTIFICATE OF CONFERENCE Pursuant to Texas Rule of Appellate Procedure 10.1(a)( 5), I certify that on June 1, 2016, I attempted to confer with counsel for Defendants/Appellants regarding the merits of this Motion and whether Defendants/Appellants oppose the Motion. Counsel for Defendants/Appellants informed me via voicemail that they are opposed to Plaintiff/Appellee’s request for remand but are unopposed to Plaintiff/Appellee’s request to dismiss this appeal. /s/ Lucas C. Wohlford Lucas C. Wohlford

# EXHIBIT ANO. D-1-GN-16-000078

TEXAS HORSEMEN'S PARTNERSHIP, LLP§ Plaintiff,

vs. GLENN HEGAR, in his official capacity as § Texas Comptroller of Public Accounts; STATE§ OF TEXAS Defendants. § 6/1/2016 4:11:22 PM Velva L. Price District Clerk Travis County D-1-GN-16-000078 Bad Henson
IN THE DISTRICT COURT OF

TRAVIS COUNTY, TEXAS

250 TH JUDICIAL DISTRICT

NOTICE OF NONSUIT WITHOUT PREJUDICE COMES NOW the Texas Horsemen's Partnership, LLP, plaintiff in the above styled and numbered cause, and respectfully files this Notice of Nonsuit Without Prejudice. Pursuant to Texas Rule of Civil Procedure 162, Plaintiff hereby gives notice that it is taking a nonsuit of its entire case against Defendants Glenn Hegar, in his official capacity as Texas Comptroller of Public Accounts, and the State of Texas. This nonsuit is without prejudice to refiling, and is effective immediately on the filing of this notice on this date.

DATED: May 31, 2016 Respectfully submitted, GARDERE WYNNE SEWELL LLP

By: /s/ David G. Cabrales David G. Cabrales Texas Bar No. 00787179 deabrales@gardere.com Lucas C. Wohlford

NOTICE OF NONSUIT WITHOUT PREJUDICE Page 1

Gardere01 - 8745149v.1Texas Bar No. 24070871 lwohlfordagardere.corn Calli A. Turner Texas Bar. No. 24088558 cturnerftardere.com Gardere Wynne Sewell LLP 3000 Thanksgiving Tower 1601 Elm Street Dallas, Texas 75201 Telephone: (214) 999-3000 Facsimile: (214) 999-4667 ATTORNEYS FOR PLAINTIFF THE TEXAS HORSEMEN'S PARTNERSHIP, LLP

CERTIFICATE OF SERVICE By my signature below, I hereby certify that a true and correct copy of the foregoing was served to all counsel of record in accordance with the Texas Rules of Civil Procedure on this the 31st day of May, 2016.

/s/ David G. Cabrales David G. Cabrales

NOTICE OF NONSUIT WITHOUT PREJUDICE Page 2

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