NO. 03-16-00018-CV 

In the Court of Appeals for the Third 

Judicial District, Austin, Texas

MARK WALTERS, 

Appellant, 

v. 

BRAD LIVINGSTON, 

in his Official Capacity as Executive Director of the 

Texas Department of Criminal Justice,

Appellee.

On Appeal from Cause No. D-1-GN-12-003493 

126th District Court, Travis County, Texas

APPELLANT’S UNOPPOSED MOTION FOR LEAVE TO FILE POST-SUBMISSION 

LETTER BRIEF

Andrew P. LeGrand

 State Bar No. 24070132

Carolyn S. Small*

 California Bar No. 304938

GIBSON, DUNN & CRUTCHER LLP

2100 McKinney Avenue, Suite 1100

Dallas, Texas 75201-6912 

Telephone: 214.698.3100 

Facsimile: 214.571.2900 

*Admitted pro hac vice

COUNSEL FOR APPELLANT MARK WALTERS. 

ACCEPTED

03-16-00018-CV

13934512

THIRD COURT OF APPEALS

AUSTIN, TEXAS

11/22/2016 2:49:16 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 11/22/2016 2:49:16 PM JEFFREY D. KYLE Clerk
1

TO THE HONORABLE THIRD COURT OF APPEALS:

Pursuant to Texas Rules of Appellate Procedure 10.1 and 38.7, the 

Appellant, MARK WALTERS, respectfully requests that the Court grant him leave 

to file the post-submission letter brief attached hereto as Exhibit A. In support of 

this unopposed motion, Appellant alleges the following:

1. This case was submitted after the Court heard oral argument on

November 16, 2016.

2. The post-submission letter brief will aid the Court in reaching its

decision because it clarifies Appellant’s position on two new issues raised at oral 

argument. 

3. The proposed brief complies with the typeface requirements of Texas

Rule of Appellate Procedure 9.4(e) because it has been prepared in a conventional 

typeface no smaller than 14-point for text and 12-point for footnotes. The 

document contains 365 words, excluding any parts exempted by Texas Rule of 

Appellate Procedure 9.4(i)(1), and complies with Rule 9.4(i)(2)(B) regarding the 

aggregate length of all briefs filed by a party in a civil case in a court of appeals. 

4. Appellee Brad Livingston does not oppose Appellant’s request for a

30-day extension.
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5. All facts recited in this motion are within the personal knowledge of

the counsel signing this motion; therefore, no verification is necessary under Texas 

Rule of Appellate Procedure 10.2.

PRAYER FOR RELIEF

For the reasons set forth above, Appellant requests that this Court grant 

Appellant’s Unopposed Motion For Leave to File Post-Submission Letter Brief. 

Appellant requests all other relief to which he may be entitled.

DATE: November 22, 2016

Respectfully submitted,

By: /s/ Andrew P. LeGrand

Andrew P. LeGrand, SBN 24070132

Carolyn S. Small*

California State Bar No. 304938

GIBSON, DUNN & CRUTCHER LLP 

2100 McKinney Avenue, Suite 1100

Dallas, Texas 75201-6912 

Telephone: 214.698.3100

Facsimile: 214.571.2900

ALeGrand@gibsondunn.com 

CSmall@gibsondunn.com 

*Admitted pro hac vice

Counsel for Appellant Mark Walters
CERTIFICATE OF CONFERENCE 

Pursuant to Texas Rule of Appellate Procedure 10.1(5), I certify that the 

undersigned conferred with opposing counsel who indicated that his client does not 

oppose this motion.

 /s/ Andrew P. LeGrand

Andrew P. LeGrand
CERTIFICATE OF SERVICE

As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I 

certify that I caused a copy of the foregoing Appellant’s Motion to be served via 

electronic mail upon on all other parties which are listed below on November 22, 

2016 as follows:

Leah O’Leary, Asst. Attorney General

Office of the Attorney General of Texas

P.O. Box 12548

Austin, Texas 78711 

Telephone: 512.463.2080 

Email: Leah.OLeary@oag.texas.gov 

Attorney for Appellee

Brad Livingston

 /s/ Andrew P. LeGrand

Andrew P. LeGrand
EXHIBIT A 
NO. 03-16-00018-CV 

In the Court of Appeals for the Third 

Judicial District, Austin, Texas

MARK WALTERS, 

Appellant, 

v. 

BRAD LIVINGSTON, 

in his Official Capacity as Executive Director of the 

Texas Department of Criminal Justice,

Appellee.

On Appeal from Cause No. D-1-GN-12-003493 

126th District Court, Travis County, Texas

APPELLANT’S POST-SUBMISSION LETTER BRIEF

Andrew P. LeGrand

 State Bar No. 24070132

Carolyn S. Small*

 California Bar No. 304938

GIBSON, DUNN & CRUTCHER LLP

2100 McKinney Avenue, Suite 1100

Dallas, Texas 75201-6912 

Telephone: 214.698.3100 

Facsimile: 214.571.2900 

*Admitted pro hac vice

COUNSEL FOR APPELLANT MARK WALTERS. 
1

TO THE HONORABLE THIRD COURT OF APPEALS:

Appellant Mark Walters respectfully submits the following supplemental 

brief in the above-captioned appeal to clarify two points raised during oral argument.

First, the State argued the 60-day notice period in section 110.006(a) cannot 

be reconciled with section 110.006(f), which applies when notice is provided 

through the inmate grievance system. There is, however, no inconsistency. The 

Texas Religious Freedom Restoration Act (“TRFRA”) provides two different 

notice periods: one for inmates, and one for non-inmates. Non-inmates must wait 

60 days before filing suit under section 110.006(a), whereas inmates must wait 

until the grievance process is completed, which can take up to 180 days. That is 

why the Legislature did not expressly say in section 110.006(e) that the 

government must cure the substantial burden within 60 days of receiving notice. 

Doing so would have created confusion about the proper application of TRFRA’s 

already clear text: To preclude a lawsuit under section 110.006(e), the government 

must cure before an injured person—inmate or non-inmate—“bring[s] an action.” 

See Black’s Law Dictionary 231 (10th ed. 2014) (defining “bring an action” as to 

“institute legal proceedings”). That is the rule Appellant is asking this Court to 

adopt. 

Second, the Court asked both parties whether Mr. Walters’s lawsuit is moot 

because the burden has been cured. As the State admitted, however, this case 
2

contains a claim for compensatory damages under § 110.005(a)(3). The State’s 

decision to cure after Mr. Walters filed this lawsuit may impact the amount of 

damages, but it does not deprive Mr. Walters of standing or render the case moot. 

As we explained at oral argument, a claim for compensatory damages under 

TRFRA is no different than any other claim for such damages: A plaintiff may 

recover for pecuniary and non-pecuniary losses incurred as a result of the 

defendant’s past harmful behavior, even if it has since ceased. See, e.g., 

Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W. 3d 438, 442-45 (Tex. 2004) 

(awarding $500,000 in compensatory damages on plaintiff’s sexual harassment 

claim even though the harassing conduct had ceased at the time she filed suit); see 

also Daimler Chrysler Corp. v. Inman, 252 S.W. 3d 299, 304-05 (Tex. 2008) 

(recognizing standing exists when the plaintiff has been injured in fact by the 

defendant’s conduct).

DATE: November 22, 2016

Respectfully submitted,

By: /s/ Andrew P. LeGrand

Andrew P. LeGrand, SBN 24070132

Carolyn S. Small*

California State Bar No. 304938

GIBSON, DUNN & CRUTCHER LLP 

2100 McKinney Avenue, Suite 1100

Dallas, Texas 75201-6912 
3

Telephone: 214.698.3100

Facsimile: 214.571.2900

ALeGrand@gibsondunn.com 

CSmall@gibsondunn.com 

*Admitted pro hac vice

Counsel for Appellant Mark Walters
CERTIFICATE OF SERVICE

As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I 

certify that I caused a copy of the foregoing Appellant’s Motion to be served via 

electronic mail upon on all other parties which are listed below on November 22, 

2016 as follows:

Leah O’Leary, Asst. Attorney General

Office of the Attorney General of Texas

P.O. Box 12548

Austin, Texas 78711 

Telephone: 512.463.2080 

Email: Leah.OLeary@oag.texas.gov 

Attorney for Appellee

Brad Livingston

 /s/ Andrew P. LeGrand

Andrew P. LeGrand