NO. 03-1S-00118-CV In the Court of Appeals for the Third Judicial District of Texas

at Austin TEXAS QUARTER HORSE ASSOCIATION, ET AL

Appellants/Intervening Defendants,



### v. AMERICAN LEGION DEPARTMENT OF TEXAS, ET AL,

Appellees/Plaintiffs. Appeal from the 53rd Judicial District Court

Travis County, Texas Trial Court Cause No. D-I-GN-14-003700
APPELLEES/PLAINTIFFS' MOTION TO DISMISS APPEAL
TO THE HONORABLE COURT OF APPEALS: COME NOW AMERICAN LEGION POST 133 et a!., Plaintiffs/Appellees, and KICKAPOO TRADITIONAL TRIBE OF TEXAS and THOMPSON ALLSTATE BINGO SUPPLY, INC. et al., Plaintiff-Intervenors/Appellees (collectively "Plaintiffs"), and file this their Motion to Dismiss Appeal, and would show as follows: ACCEPTED 03-15-00118-CV 5176524 THIRD COURT OF APPEALS

AUSTIN, TEXAS 5/6/2015 2:17:08 PM JEFFREY D. KYLE

CLERKI. ,Summary

This case is an appeal of a summary judgment holding that the recent administrative rules of the Texas Racing Commission ("TRC") permitting gambling machine wagering on videos of previously run horse and dog races violate the Texas Racing Act, are outside the TRC's authority, and arevoid and of
no effect. Significantly, the TRC, its executive director, and its individual Commissioners who were defendants have not appealed the summary judgment. Instead, they allowed it to become final as to them, in essence accepting the judgment. The only appellants before this Court are private horse racing industry organizations that had intervened as defendants ("Intervening Defendants"). CR 119,126,130,136,143,147,236,245.1 The Court should dismiss this appeal for lack of subject matterjurisdiction
onthe following grounds: (1) This appeal is now moot because the TRC's decision not to appeal and thus to accept the trial court judgment finally resolves the controversy by providing therelief sought bythe Plaintiffs with regard totherules' validity;

1 The Plaintiffs filed a notice of cross-appeal to challenge the trial court's sustaining of Intervening Defendants' objections to certain ofPlaintiffs' summary judgment evidence.

2(2) This appeal isnow moot because the new rules no longer exist andno

controversy remains for this Court as a result of the TRC having conceded the invalidity ofthenew rules bynot appealing; (3) This appeal isnow moot because the Court may not reenact orrevive thenew rules andtherefore cannot grant effective relief; (4) Any ruling from this Court would provide only an advisory opinion andviolate separation ofpowers principles; and (5) The TRC is a necessary party to this appeal under the Texas Administrative Procedure Actbut, bynot appealing, cannot bemade aparty. II. Factual Background The Texas Racing Act, Tex. Rev. Civ. Stat. Ann. art. 17ge, has permitted pari-mutuel wagering on live horse and dog races since its enactment in 1986 and
on simulcast horse and dog races since 1991. Acts 1991, 72nd Leg., ch. 386. The TRC gets its authority from the Texas Racing Act. Tex. Rev. Civ. Stat. Ann. art. 17ge, arts. 2and 3. On August 29, 2014, the TRC adopted administrative regulations purporting to authorize wagering on videos of past horse and dog races, which the TRC referred to as "historical" "racing." See 39 Tex. Reg. 7573 (Sept. 19, 2014);

3Transcript of 8/29/14 Tex. Racing Comm 'n Mtg.2 The TRC recogmzes that

"historical racing" terminals do not constitute either live racing approved in 1986
or simulcast racing approved in 1991. "[H]istorical racing is distinct from live or simulcast racing." 39 Tex.Reg. at 4882 (16 TAC §321.701). No legislation has
ever approved "historical" orother gambling device race wagering inTexas. Twenty-six nonprofit organizations that conduct charitable bingo in Texas, several businesses that provide services to those charities, a charitable advocacy group, and a federally-recognized Indian tribe that operates a gaming facility in Texas filed suit in Travis County, Texas against the TRC, its executive director, and some ofits Commissioners challenging the new regulations. CR 4, 62, 155. Plaintiffs sought adeclaratory judgment under Tex. Gov't Code Ann. §2001.038(a) and Tex. Civ. Prac. &Rem. Code Ann. §§37.001 et. seq. that therules violated the Texas Racing Act, were outside theTRC's authority andwere ultra vires, andwere void. Id. Plaintiffs also sought to invalidate the rules under the Texas Constitution, the Texas Penal Code, and the Administrative Procedure Act, and requested injunctive relief from the rules' enforcement. Id. A number ofprivate

2Available atwww.txrc.texas.gov/agency/meetings/transcripts/t20140829.pdf. The new regulations included amendments to existing regulations at 16 Texas Administrative Code ("TAC") sections 301.1, 303.31, 303.42, 309.8, 309.297, 309.299, 309.361, 321.5, 321.12, 321.13, 321.23, 321.25, and 321.27, and also added new provisions authorizing so-called "historical" racing at 16TAC sections 321.701-321.719. See 16TEX.ADMIN.CODE§§321.701 etseq., with conforming amendments to other rules. The new rules were proposed at 39 Tex. Reg. 4873 etseq. (June 27, 2014) and adopted at39Tex. Reg. 7573 etseq. (Sept. 19,2014).

4organizations in the horse and dog racing industry intervened to defend the new

rules. CR 119, 126, 130, 136, 143, 147, 236, 245. None ofthe governmental Defendants or the Intervening Defendants asserted any affirmative claims for relief. Id. Plaintiffs filed a motion for partial summary judgment on their two declaratory judgment claims andtheir ultra vires claim. CR 254. The TRC andits officials filed across-motion for summaryjudgment on all claims, CR 341, as did the Intervening Defendants. CR 384, Supp. CR 3. The trial court granted the Plaintiffs' motion for partial summary judgment in full and denied both the governmental Defendants' motion for summary judgment and the Intervening Defendants' separate summary judgment motion on the issue of the TRC's statutory authority to adopt the new rules.' CR 661. The trial court stated that the TRC's "historical racing rules" exceed the TRC's authority under the Texas Racing Act, Tex. Rev. Civ. Stat. Ann. art. 17ge, and are invalid. Id. Plaintiffs nonsuited their remaining claims so the summary judgment could become final as totheir declaratory judgment and ultra vires claims. CR 656.

3The trial court did not address the Defendants' and Intervening Defendants' other grounds for summary judgment, which were that the TRC allegedly complied with the Administrative Procedure Actwhen issuing the new rules andthat therules purportedly didnotviolate the Texas Constitution orthe Texas Penal Code. CR 663-64. The Plaintiffs nonsuited their claims under the Texas Constitution, Penal Code, APA non-compliance (as opposed to claim under §2001.038(a)), and for injunctive relief, mooting the Defendants' and Intervening Defendants' other grounds forsummary judgment. CR 656.
5Neither the TRC nor its officials appealed the judgment. Only the

Intervening Defendants have appealed thejudgment." CR740. III. Argument A. The Court Lacks Subject Matter Jurisdiction and Dismissal is Required Because theIntervening Defendants' Appeal isMoot Texas courts lack subject matterjurisdiction over cases that aremoot. Nat'l Collegiate Athletic Ass 'nv.Jones, 1 S.W.3d 83, 86 (Tex. 1999) (cited inSmith v. Abbott, 311 S.W.3d 62, 77 (Tex. App.-Austin 2010, pet. denied)). This lack of jurisdiction "is rooted in separation-of-powers concepts andthe prohibition against courts rendering advisory opinions." Smith, 311 S.W.3d at 77. A case becomes moot when either: (1) there is no case or controversy; or (2)judgment is sought that cannot have any practical legal effect. See TexasHealth CareInfo. Council v. Seton Health Plan, 94 S.W.3d 841, 846-47 (Tex. App.-Austin 2002, pet. denied).
The TRC's decision not to appeal the trial court's judgment has rendered this case moot. First, no controversy exists because the TRC did not appeal and there isno case orcontroversy between the remaining parties. Second, this case is not redressable by the Court because the rules the TRC has chosen to abandon no

4See n. 1,supra.

6longer exist. Any ruling in this case would render an impermissible advisory

opinion.
1. Mootness standard "A case becomes moot when: (1) it appears that one seeks to obtain a judgment on some controversy, when inreality none exists; or (2)when one seeks
ajudgment on some matter which, when rendered for anyreason, cannot have any practical legal effect on a then-existing controversy." Texas Health Care Info. Council, 94 S.W.3d at 846-47. Under the mootness doctrine, a controversy must involve a dispute of something more than ahypothetical orabstract character. Securtec, Inc. v. County ofGregg, 106 S.W.3d 803, 809 (Tex. App.- Texarkana 2003, pet. denied) (citing Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478, 487 (Tex. App.- Houston [1st Dist.] 1993, writ denied)). The doctrine also requires that courts avoid rendering advisory opinions by only deciding cases that present a "live" controversy atthe time ofthe decision. Camarena v. Texas Employment Comm'n, 754 S.W.2d 149,151 (Tex. 1988). "A case becomes moot ifacontroversy ceases toexistbetween theparties at any stage ofthe legal proceedings, including the appeal." In reKellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005); see also Allstate Ins. Co. v.

7Hallman, 159 S.W.3d 640,642 (Tex. 2005). Thus, "[w]hen there has ceased tobe

a controversy between the litigating parties
... the decision of an appellate court would be a mere academic exercise and the court may not decide the appeal." Olson v. Comm 'nfor Lawyer Discipline, 901 S.W.2d 520, 522 (Tex. App.-EI Paso 1995, no writ) (internal citations omitted). Appellate courts, therefore, "have
an obligation to take into account intervening events that may render a lawsuit moot." Heckman v. Williamson Cnty., 369 S.W.3d 137, 166-67 (Tex. 2012). 2. Because the TRC did not appeal, no case orcontroversy remains for this Court todecide, rendering the appeal moot. The TRC's decision not to appeal mooted the case because: (a) no case or controversy exists between the remaining parties; and (b) the subject of the litigation-the new rules-legally no longer exists.
a. The appeal is moot because there is no case or controversy between the remaining parties. The Court lacks subject matterjurisdiction over this appeal because no case
or controversy exists between the remaining parties. When the state becomes a party to a suit it is subject to the same rules that govern other parties, and a judgment for or against it must be given the same effect as would be given ifit
were an individual litigant. See, e.g., Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1145 (1939); Railroad Commission v.Arkansas Fuel Oil Co., 148

8S.W.2d 895, 898 (Tex. Civ. App.-Austin 1941, writ ref'd); see also Royal Indep.

Sch. Dist. v.Ragsdale, 273 S.W.3d 759, 766 n.7 (Tex. App.-Houston [14th Dist.] 2008, nopet.) (school district, an arm ofstate, may not attack order that itfailedto timely appeal); In reState Boardfor Educator Certification, 452 S.W.3d 802, 809 (Tex. 2014) (orig. proceeding) (state board not entitled inthis instance to supersede judgment under TRAP 25.1(h)). By allowing thejudgment to become final by not appealing, the TRC has legally abandoned itsnew rules and accepted the trial court's ruling thatthose rules
were enacted without authority, were ultra vires acts, are void, and are ofno legal effect. See, e.g., Diamond v. Charles, 476 U.S. 54, 63-64 (1986) ("By not appealing thejudgment below, the State indicated its acceptance ofthat decision, and its lack of interest in defending its own statute ... its failure to invoke our jurisdiction leaves the Court without a 'case' or 'controversy'
...." (footnote omitted)). The trial court's rulings arenow final andnon-appealable astotheTRC and its Commissioners. SeeEastin v.Dial, 288 S.W.3d 491, 499 (Tex. App.-San Antonio 2009, pet. denied) ("Generally, when one party appeals ajudgment, any relief afforded thatparty applies only tohim andnotto anynonappealing party."). As aresult ofthe government Defendants' acceptance ofthejudgment and abandonment of the new rules, there is no longer a "rule or its threatened

9application [that] interferes with orimpairs, orthreatens tointerfere with orimpair,

a legal right or privilege of the plaintiff," for purposes of a case or controversy under the Texas Administrative Procedure Act's declaratory judgment provision. Tex. Govt. Code Ann. §2001.038(a).5 Concomitantly, there isnolonger aneed for
acourt to "declare [the] rights, status, and other legal relations" between Plaintiffs andthe government Defendants, forpurposes ofalive controversy under theTexas Declaratory Judgment Act. Tex. Civ. Prac. & Rem. Code Ann. §37.003(a).6 Moreover, the summary judgment based on ultra vires claims was not appealed by the only parties who acted ultra vires

- i.e., the individual TRC officials. There is
no longer a case or controversy between Plaintiffs and the only parties against whom Plaintiffs had asserted any claims-the TRC andits officials.

5 Note also that the United States Supreme Court has stated that, based on "concerns for state autonomy," aprivate defendant appealing in the absence ofthe state party may not "compel a State to create and retain" a certain "legal framework." Diamond v. Charles, 476 U.S. 54, 65 (1986) (dismissing appeal byprivate intervening defendant when state entity did not appeal); see also, e.g., Associated Builders & Contractors v. Perry, 16 F.3d 688, 691-93 (6th Cir. 1994) (finding an intervening defendant could not appeal in the absence ofthe state because it could not "compel the State to enforce alaw which ithas chosen to abandon"). 6 See also Hollingsworth v. Perry, 133 S.Ct. 2652, 2662 (2013) (refusing to allow intervening defendants to appeal in the absence ofthe state because "the District Court had not ordered [the intervenors] to do orrefrain from doing anything")

10There isno case orcontroversy between the only parties to this appeal-the

Plaintiffs and the Intervening Defendants." Plaintiffs and Intervening Defendants asserted no claims against each other, norcould they have done so. b. The appeal is moot because the subject of the litigation no longer exists. The Court also lacks subject matter jurisdiction because the new rules themselves ceased to exist when the judgment became final as to the TRC, eliminating the case orcontroversy. When ajudgment invalidating rules becomes final, the new rules are void and the last valid rules are restored. See All Saints Health Sys. v. Texas Workers' Camp. Comm'n, 125 S.W.3d 96, 103 (Tex. App.- Austin 2003, pet. denied) ("[T]he appropriate remedy following the invalidation of
an administrative rule under the APA is to return to the last validly adopted legal standard existing at the time of the rule's promulgation."). Agency action to eliminate one ofits rules by not appealing the rule's judicial invalidation creates the same mootness as ifthe agency had repealed or amended the rule during the lawsuit. Cf Heckman, 369 S.W.3d at 167 (challenge to statute or written policy may become moot ifstatute orpolicy isrepealed orfundamentally altered); Texas

7 Plaintiffs did file a notice of cross-appeal in the district court on the sole issue of the Intervening Defendants' objections (Supp. CR 107) to certain evidence in Plaintiffs' summary judgment response. None ofthe government Defendants asserted any objections to Plaintiffs' evidence. Consequently, none ofthe government Defendants are cross-appellees on Plaintiffs' cross-appeal. In any event, ifthe Intervening Defendants' main appeal is dismissed for lack of subject matterjurisdiction, Plaintiffs' cross-appeal should alsobe dismissed asbeing moot.

11Dept. ofHealth v.Long, 659 S.W.2d 158, 160-61 (Tex. App.-Austin, 1983, pet.

denied) (appeal moot when procedural requirement that served as basis for temporary injunction was subsequently eliminated by amendment to regulations); In re Gruebel, 153 S.W.3d 686, 689 (Tex. App.-Tyler, 2005, no pet.) (amendment of zoning ordinance pending appeal rendered appeal moot); Texas Education Agency v.Maxwell, 937 S.W.2d 621, 622 (Tex. App.-Eastland 1996, writ denied) (case moot after trial court invalidation and State repeal); Baptist Memorial Hosp. Sys. v. Texas Health Facilities Comm 'n, 697 S.W.2d 531, (Tex. App.-Austin 1985, no writ) (case moot because statutory provisions expired and agency abolished). In either scenario, the rule, along with the controversy concerning it, ceases to exist. Gambling onvideo images ofpast races isnolonger part oftheTRC's regulations. 3. The appeal is moot because there is no effective relief the Court may grant theAppellants. A case "becomes moot where the court cannot possibly grant effective relief." State v. Gibson Prods. Co., Inc., 699 S.W.2d 640, 641 (Tex. App.-Waco 1985, no writ); Fiske v. City of Dallas, 220 S.W.3d 547, 550 (Tex. App.- Texarkana 2007, nopet.) (declaratory judgment proper only ifitwill have tangible effect onlitigant's right, status, orlegal relations). Courts may not grant reliefthat

12would involve an exercise of rule-making authority. Cf Buddy Gregg Motor

Homes, Inc. v.Motor Vehicle Bd. ofTex. Dept. ofTransp., 179 S.W.3d 589, 603 (Tex. App.-Austin 2005, pet. denied) ("A court 'cannot modify an agency order without usurping the agency's authority and thereby violating the separation of powers doctrine. '" (quoting City ofStephenville v. Tex. Parks & Wildlife Dep t, 940 S.W.2d 667, 678 (Tex. App.-Austin 1996, writ. denied))). As the Texas Supreme Court stated inBrown v.Humble Oil &Refining Company: Ifarule ofthe commission is found tobe illegal orinvalid by acourt of competent jurisdiction, such court may so adjudge. The court cannot substitute anew rule forthe one adjudged invalid. That power rests exclusively with the Railroad Commission.
126Tex. 296,316,87 S.W.2d 1069, 1070 (1935); see also TexasDep't ofTransp.
v. T Brown Constructors, Inc., 947 S.W.2d 655, 659 (Tex. App.-Austin 1997, pet. denied). Therefore, when relief depends upon an exercise of rulemaking authority, there isno effective reliefthat acourt canprovide.' There is no effective relief this Court may grant the Intervening Defendants with respect tothe legally invalidated, abandoned, and now non-existent new rules. No ruling from this Court could have any practical legal effect because this Court

8 See, e.g., Sea Shore Corp. v. Sullivan, 158 F.3d 51, 58 (1st Cir. 1998) (dismissing appeal by intervenors in the absence ofthe state because "in the present case redress
... depends not only upon areversal ofthe district court's decision, but also upon astate agency's decision to enforce alaw after declining to appeal its invalidation").

13lacks the subject matterjurisdiction to substitute anew rule forarule thathasbeen

invalidated in a finaljudgment and abandoned by the TRC. See, e.g., Brown, 87 S.W.2d at 1070. Additionally, this Court cannot add to the trial courtjudgment ofinvalidity
or supersede its finality and binding effect as to the TRC. The prior rules, now restored to legal status by the TRC's decision not to appeal, are the only legally effective rules, and no dispute astothem isbefore the Court inthis appeal." Only the TRC can promulgate new rules (to the extent permitted by the Texas Racing Act). Because any such new rules arehypothetical, donot exist andhave notbeen evaluated by adistrict court, they cannot be atissue inthe Intervening Defendants' appeal and arenot anissue onwhich theTRC has sought aruling fromthis Court. 4. A ruling in this case would render an advisory opinion and violate Texas' separation ofpowers principles. The TRC's decision not to challenge the invalidation ofits rules creates an additional constitutional hurdle to Appellants' appeal. Because a ruling in Appellants' favor would have no practical legal effect on the rules' validity, it would constitute an impermissible advisory opinion and violate Texas' separation

9SeeHutto Citizens Grp. v. Cnty. ofWilliamson, No. 03-08-00578-CV, 2009 WL 2195582 (Tex. App.-Austin July 23, 2009, no pet.) (holding appeal mooted in case in which county and intervening citizen's group sought a declaration that contract between county and waste management company was void, where county and waste management company entered new contract and only citizen's group maintained appeal).

14ofpowers principles. See Nat'l Collegiate Athletic Ass 'n, I S.W.3d at 86 (Texas

courts prohibited from deciding moot controversies under separation of powers doctrine); see also Tex. Const. art. II, § 1. The Texas Supreme Court has stated that "the court's duty to dismiss moot cases arises from a proper respect for the judicial branch's unique role under our constitution: to decide contested cases. Under our constitution, courts simply have no jurisdiction to render advisory opinions." Speer v. Presbyterian Children's Home & ServoAgency, 847 S.W.2d 227, 228-29 (Tex. 1993) (dismissing appeal as moot); see also Spring Branch I.S.D. V. Reynolds, 764 S.W.2d 16, 18 (Tex. App.-Houston [1st Dist.] 1988, no writ) ("An advisory opinion from this Court is not necessary to protect the government from abuse. Itiswellpositioned toprotect itself."). Any request for relief by the Intervening Defendants In this appeal necessarily would seek an advisory OpInIOn. An OpInIOnregarding the nonexistent new rules could only serve as possible future guidance concermng hypothetical future rules because there is nothing that can now be done regarding the legal effectiveness ofthe invalidated rules. See Camarena, 754 S.W.2d at 151 (trial court erred by awarding injunctive relief based on statute as amended while

15case pending; "courts, under our Constitution, do not give advice or decide cases

upon speculation, hypothetical orcontingent situations.t'L'" B.Under the APA, the TRC isaNecessary Party to anAction Challenging the Validity ofitsRules. This appeal should also be dismissed because the TRC is anecessary party under theAPA. Section 2001.038 ofthe APA establishes the right ofan eligible plaintiff to bring an "action fordeclaratory judgment" to challenge thevalidity orapplicability ofanagency rule. Tex. Govt. Code Ann. §2001.038(a). Significantly forpurposes of this appeal, Section 2001.038(c) identifies the only person (other than the plaintiff) who must be a party: "The state agency must be made aparty to the action." Id. §2001.038(c) (emphasis added).11 The statute is clear inthis respect: in order for a court to entertain a challenge to an agency rule, the agency that

10See also Tex. Ass 'nofBus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) ("The distinctive feature of an advisory opinion is that it decides an abstract question oflaw without binding the parties."); Texas Parks and Wildlife Dept. v. Texas Ass'n ofBass Clubs, 622 S.W.2d 594 (Tex. App.-Austin 1981, writ refd n.r.e.) (notwithstanding claim that important administrative law question was involved in mooted case, possibility of future agency action would have constituted nothing more than advisory opinion on abstract question oflaw); Texas Alcoholic Beverage Comm 'n v. Carlin, 477 S.W.2d 271, 274 (Tex. 1972) ("A decision ofthe case would thus serve no purpose except to determine the law orthe facts forthe guidance ofthe parties inthe event another and different controversy should arise between them. The courts do not sitforthatpurpose, and itis our opinion that the case ismoot.").
11 This section has existed unchanged since the original 1975 Administrative Procedure and Texas Register Act (APTRA), former V.A.C.S. art. 6252-13a. ACTS 1975, 64th Leg., ch. 61, Sec. 12.

16promulgated the rule must be aparty. 

### Inthe absence ofthe agency, the "action"

cannot legally move forward. Although itwas the lead defendant inthetrial courtproceedings, the TRC is neither an "appellant" nor an "appellee" in this case. See Tex. R. App. P. 3.1(a) (defining "appellant" as "a party taking an appeal to an appellate court"); 3.1(c) ("Appellee means a party adverse to an appellant")." The TRC had a right to appeal the adverse ruling but elected not to. Therefore it is not a party to this appeal onanyissue concerning thevalidity ofthetrial court's judgment. The APArequires the TRC tobe anappellant tothis appeal. The "action" to which an agency "must" be aparty under Sec. 2001.038(c) includes the appeal of the district court rulemaking challenge. Because the appeal of the underlying lawsuit ispart ofthe "action" forpurposes ofthat section, then this appeal should be dismissed. Dismissal is required when, ashere, anecessary party is absent and cannot bejoined. Cf Travis Heights Improvement Ass 'n v. Small, 662 S.W.2d 406, 413 (Tex. App.-Austin 1983, no writ) ("While such asituation israre, there
areparties whose presence is soindispensible tothe resolution ofacause ofaction that their absence can deprive acourt ofjurisdiction to determine such."); Gilmer

12The TRC isnot even across-appellee on Plaintiffs' cross-appeal, since Plaintiffs' cross-appeal concerns only whether the district court erred in sustaining certain objections by the Intervening Defendants to some ofPlaintiffs' summary judgment evidence. The TRC andits Commissioners did not assert any objections to that evidence. In any event, the validity of the trial court's judgment isnot atissue on Plaintiffs' cross-appeal.

17Ind. Sch. Dist. v.Dorfman, 156 S.W.3d 586, 588 (Tex. App.-Tyler 2003, nopet.)

(agency charged with enforcing statute must be made party to avoid advisory opinion). Section 2001.038(c)'s legislative mandate that State agencies are indispensible parties to a rulemaking challenge makes sense. Not only does an agency both promulgate and enforce theregulation under attack, butitalso (atleast in theory) represents the interest of the public, not any particular regulated business. When only private parties square off over the validity of a rule, the public has no voice in the proceeding. Such is also true on appeal. Therefore, Section 2001.038(c) properly requires agency party status at both the trial and appellate level. When a State agency loses a rulemaking challenge in district court, its decision not to appeal that judgment is significant. The only fact that can be discerned from the agency's non-appeal is that the agency has accepted the judgment. Whether the agency likes the trial court's ruling is irrelevant. By not appealing, the agency has agreed to be bound by the lower court decision. To entertain an appeal byprivate party intervenors would constitute unwanted judicial interference in the administrative process, even ifthe agency supported ortacitly

18agreed with having theprivate party intervenors carryon the fight forit. 13 As Sec.

2001.038(c) mandates, no portion of arulemaking challenge-at trial or appealshould proceed in the agency's absence. Ifthe agency ceases to fight, the fight
ceases.. In this case, the TRC made the affirmative decision not to challenge the district court's ruling invalidating its newly-promulgated rules. The APA does not permit anappeal totake place inthe TRC' sabsence. IV. Conclusion andPrayer This appeal is moot, and this Court lacks subject matterjurisdiction over it. Given the absence of any appeal by the TRC, there is no case or controversy between the remaining parties andthe rules onwhich suitwas initially brought are void and now nonexistent. Further, no relief sought by Appellants canbe granted because this Court cannot presume that the TRC will attempt to bring the invalidated rules back to life, Appellants may not seek anyrelief astothe lastvalid rules, and there is no judgment that this Court may enter than will have any practical legal effect. The TRC is also an absent necessary party. This appeal and

13 For instance, in Diamond v. Charles, 476 U.S. 54 (1986), the state did not appeal but the Attorney General filed aletter ofinterest stating that its "interest inthis proceeding isidentical to that advanced by it in the lower courts and is essentially co-terminous with the position on the issues set forth by the appellants." Id. at 61. The United States Supreme Court found this insufficient to allow aprivate party to carry an appeal forward inthe absence ofthe state.

19the cross-appeal should be dismissed now forjudicial economy and to enable the

parties to avoid further unnecessary briefing and expense on this appeal. Costs should be assessed against Appellants. The mandate does not need to be issued early. Movants pray for such other and further relief, both atlaw and inequity, to which they maybe deemedjustly entitled.

20Respectfully submitted, Raymond E.White StateBar#: 21321950 MCGINNIS, LOCHRIDGE &KILGORE, LLP 600 Congress Ave., Ste. 2100 Austin, TX 78701 Phone: (512) 495-6035/Fax: (512) 505-6331 rwhite@mcginnislaw.com By: lsiRaymond E. White Raymond E.White Attorneyfor AppelleelPlaintiff Kickapoo Traditional Tribe ofTexas Stephen Fenoglio Attorney and Counselor atLaw 713 West 14th Street Austin, TX78701 State Bar#: 06904600 Phone: (512) 347-9944/Fax: (512) 482-8095 jsfenoglio@fenogliolaw.com and Anatole Barnstone OFFICE OFANATOLE BARNSTONE State Bar#: 00793308 713 West 14thStreet Austin, TX 78701 Phone: (512) 327-2600/Fax: (512) 482- 8095 barnstonelaw@gmail.com
BY:~~ ~ Anatole Barnstone 

## lr;~ ~ 0( 

### h. Attorneyfor American Legion ~~~ Department ofTexas
21Terry L. Scarborough Hance, Scarborough LLP 400 W. 15th St., Suite 950 Austin, TX 78701 Phone: (512) 479-8888IFax: (512) 482-6891 tscarborough@hslawmail.com 

### By~,~~~~~ ..~~~~~ Teny 'ough Attorneysfor ThompsonAllstate
.tngo Supply,Inc. andMoore Supplies, Inc. CERTIFICATE OFCONFERENCE The undersigned certifies that he conferred, ormade areasonable attempt to confer, with all other parties about the merits ofthis motion to dismiss, andthe Appellants/Intervening Defendants oppose this motion. By: lsiRaymond E. White Raymond E. White CERTIFICATE OFSERVICE Theundersigned certifiesthattheparty/parties listedbelowwas)}n;served the foregoing document(s) inthe manner shown onthe~ day of ,2015. lsiRaymond E. White Dudley D. McCalla JACKSON WALKER, LLP 100 Congress Ave. Ste. 1100 Austin, TX 78701 Attorneyfor Global GamingLSP, LLC EMAIL/E-FILE dmccalla@jw.com

John A. Cardwell 1.Bruce Bennett CARDWELL HART &BENNETT, EMAIL/E-FILE cardwe1l53@earthlink.com jbb.chblaw@me.com

22LLP

807 Brazos, Ste. 1001 Austin, TX 78701 Attorneyfor Global Gaming LSP, LLC James C. Ho Gibson, Dunn &Crutcher LLP 2100 McKinney Avenue, Suite 1100 Dallas, TX 75201 Attorneyfor SamHouston Race Park, LLC Phillip G. Oldham John P.Vacalis Benjamin B. Hallmark Thompson &Knight 98 SanJacintio, Ste. 1900 Austin, TX 78701 Attorneysfor SamHouston Race Park, LLC Rob Hargrove Ana Maria Marsland Griffith Osborn, Griffith &Hargrove 515 Congress Ave., Ste. 2450 Austin, TX 78701 Attorneysfor Texas Quarter Horse Association Martha S.Dickie A. Boone Almanza Almanza, Blackburn &Dickie, LLP 2301 S.Capital ofTexas Hwy., Bldg. H Austin, TX 78746 Attorneysfor Gillespie County Fair and Festivals Association, Inc. EMAIL/E-FILE jho@gibsondunn.com

EMAIL/E-FILE phillip.oldham@tklaw.com john.vacalis@tklaw.com benjamin.hallmark@tklaw.com

EMAIL/E-FILE rob@texasenergylaw.com anamaria@texasenergylaw.com

EMAIL/E-FILE mdickie@abdlawfirm.com balmanza@abdlawfirm.com

23