NO. 03-15-00285-CV

____________________________________________________ 

IN THE THIRD COURT OF APPEALS 

AT AUSTIN, TEXAS 

____________________________________________________ 

VOLKSWAGEN GROUP OF AMERICA, INC., and AUDI OF AMERICA, 

INC., 

 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 Judges for the State Office of Administrative 

Hearings, 

 Appellees. 

____________________________________________________ 

On Appeal from the 353rd District Court, Travis County, Texas 

___________________________________________________ 

JOHN WALKER, III’S APPELLEE BRIEF 

____________________________________________________ 

KEN PAXTON 

Attorney General of Texas 

CHARLES E. ROY 

First Assistant Attorney General 

JAMES E. DAVIS 

Deputy Attorney General for 

Civil Litigation 

DAVID A. TALBOT, JR. 

Chief, Administrative Law Division 

DENNIS M. MCKINNEY 

Assistant Attorney General 

State Bar No. 13719300 

OFFICE OF THE TEXAS ATTORNEY GENERAL

ADMINISTRATIVE LAW DIVISION

P.O. Box 12548 

Austin, Texas 78711-2548 

Telephone: (512) 475-4020 

Facsimile: (512) 320-0167 

dennis.mckinney@texasattorneygeneral.gov

Attorneys for John Walker III 

ORAL ARGUMENT REQUESTED 

ACCEPTED

03-15-00285-CV

6504860

THIRD COURT OF APPEALS

AUSTIN, TEXAS

8/14/2015 2:09:28 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 8/14/2015 2:09:28 PM JEFFREY D. KYLE Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

Parties to the Trial Court’s Order:

Defendants/Appellees: John Walker III, in his Official Capacity as 

Chairman of the Texas Department of Motor 

Vehicles Board

The Honorable Michael J. O’Malley, and the 

Honorable Penny A. Wilkov, in their Official 

Capacities as Administrative Law Judgment for the 

State Office of Administrative Hearings

Intervenors/ Appellees: Ricardo Weitz, Hi Tech Imports North, LLC, Hi 

Tech Imports South, LLC, Budget Leasing, Inc. 

d/b/a Audi North Austin and Audi South Austin

Plaintiffs/Appellants: Volkswagen Group of America, Inc., and Audi of 

America, Inc.

__________________________________

Counsel:

For Appellee Walker:

Dennis M. McKinney

Assistant Attorney General

State Bar No. 13719300

OFFICE OF THE TEXAS ATTORNEY GENERAL

ADMINISTRATIVE LAW DIVISION

P.O. Box 12548

Austin, Texas 78711-2548

Telephone: (512) 475-4020

Facsimile: (512) 320-0167

dennis.mckinney@texasattorneygeneral.gov
iii

For Appellees O’Malley and Wilkov:

Kimberly Fuchs 

Assistant Attorney General

State Bar No. 24044140 

Chief, Open Records Litigation 

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

For Appellees Ricardo Weitz, et al.:

J. Bruce Bennett

Cardwell, Hart & Bennett

State Bar. No. 02145500

807 Brazos Suite 1001

Austin, Texas 78701

jjb.chblaw@abcglobal.net

Telephone: (512) 322-0011

Facsimile: 512-322-0808

William R. Crocker

State Bar. No. 05091000

P.O. Box 1418

Austin, Texas 78767

crockerlaw@earthlink.net

Telephone: (512) 478-5611

Facsimile: 512-474-2540
iv

For Appellants:

BAKER & HOSTETLER LLP 

Billy M. Donley 

State Bar No. 05977085 

Mark E. Smith 

State Bar No. 24070639 

811 Main Street, Suite 1100 

Houston, Texas 77002 

(713) 751-1600 (Telephone) 

(713) 751-1717 (Facsimile) 

bdonley@bakerlaw.com

mesmith@bakerlaw.com

KING & SPALDING

S. Shawn Stephens

State Bar No. 19160060

James P. Sullivan

State Bar No. 24070702

1100 Louisiana Suite 4000

Houston, Texas 77002

Telephone: (713) 751-3200

Facsimile: (713) 751-3290
v

TABLE OF CONTENTS

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

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

INDEX OF AUTHORITIES.................................................................................... vi

RECORD AND PARTY REFERENCES ............................................................... ix

STATEMENT REGARDING ORAL ARGUMENT ...............................................x

STATEMENT OF FACTS ........................................................................................x

ISSUES PRESENTED FOR REVIEW.................................................................. xii

STANDARD OF REVIEW.......................................................................................2

SUMMARY OF THE ARGUMENT ........................................................................2

ARGUMENT.............................................................................................................3

A. The trial court properly granted Walker’s Plea to the Jurisdiction. ................3

B. Remand of the matter to SOAH for consideration of additional 

evidence was not an ultra vires act. .................................................................9

C. The remand order complies with the motion to remand the case as 

passed by the Board.......................................................................................11

CONCLUSION AND PRAYER .............................................................................12

CERTIFICATE OF COMPLIANCE.......................................................................13

CERTIFICATE OF SERVICE ................................................................................14

APPENDIX..............................................................................................................16
vi

INDEX OF AUTHORITIES

Cases

Appraisal Review Bd. of Harris Cnty. Appraisal Dist. v. O’Connor 

& Assoc., 267 S.W.3d 413 (Tex. App.—Houston [14th Dist.] 2008, 

no pet.)..................................................................................................................7

Bd. of Trustees of Galveston Wharves v. O’Rourke, 405 S.W.3d 228 

(Tex. App.—Houston [1st Dist.] 2013, no pet.) ..................................................8

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) .................................5

Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd. of Tex. Dep’t of 

Transp., 156 S.W.3d 91 (Tex. App.—Austin 2004, pet. denied)........................6

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) .......................... xii, 5, 6

Coastal Habitat Alliance v. Pub. Util. Comm’n of Tex., 294 S.W.3d 

276 (Tex. App.—Austin 2009, no pet.) ...........................................................7, 8

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

Quality, 307 S.W.3d 505 (Tex. App.—Austin 2010, no pet.).............................9

Dir. of Dep’t of Agric. & Envtl. v. Printing Indus. Ass’n of Tex., 

600 S.W.2d 264 (Tex. 1980)................................................................................9

El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309 

(Tex. 1999)...........................................................................................................2

Friends of Canyon Lake, Inc. v. Guadalupe-Blanco River Auth., 

96 S.W.3d 519 (Tex. App.—Austin 2002, pet. denied).......................................7

Lindsay v. Sterling, 690 S.W.2d 560 (Tex. 1985)...................................................4

N. Alamo Water Supply Corp. v. Tex. Dep’t of Health, 839 S.W.2d 

455 (Tex. App.—Austin 1992, writ denied)........................................................8
vii

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984).........................7

Quick v. City of Austin, 7 S.W.3d 109 (Tex. 1998) ................................................2

Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006). .....................5

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993)..........4, 5

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004).............2

Tex. Logos, L.P. v. Tex. Dep’t of Transp., 241 S.W.3d 105 (Tex. App.

—Austin 2007, no pet.)........................................................................................8

Tex. State Bd. Veterinary Med. Exam’rs v. Giggleman, 408 S.W.3d 696 

(Tex. App.—Austin 2004, no pet.) ......................................................................5

Thomas v. Long, 207 S.W.3d 334 (Tex. 2006).......................................................5

Statutes

Tex. Govt’ Code § 2001.058....................................................................................10

Tex. Gov’t Code § 2001.144(2).................................................................................3

Tex. Gov’t Code § 2001.145..................................................................................3, 4

Tex. Gov’t Code § 2001.146..................................................................................... 4

Tex. Occ. Code § 2301.151 ........................................................................ x, 6, 9, 10

Tex. Occ. Code § 2301.153 .......................................................................................6

Tex. Occ. Code § 2301.359 ...................................................................................6, 8

Tex. Occ. Code § 2301.360 ...................................................................................6, 8

Tex. Occ. Code § 2301.458 ...................................................................................6, 8
viii

Tex. Occ. Code § 2301.702 .....................................................................................10

Tex. Occ. Code § 2301.709 .................................................................................9, 10

Tex. Occ. Code § 2301.709(b).................................................................................10

Tex. Occ. Code § 2301.709(c)...................................................................................7

Tex. Occ. Code § 2301.709(d)...................................................................................7

Tex. Occ. Code § 2301.751 .....................................................................................10
ix

RECORD AND PARTY REFERENCES

References to the clerk’s record will be referred to as “CR ____.” 

The reporter’s record will be referred to as “RR (Vol. ___) ____.” 

Appellee, John Walker III, will be referred to as “Walker” or “the Board”. 

Appellees, Honorable Michael J. O’Malley, and Honorable Penny A. Wilkov, will 

be collectively referred to as “SOAH Appellees.”

Appellants, Volkswagen of America, Inc. and Audi of America, Inc., will be 

collectively referred to as “Audi,” or “Appellants.”

Appellees Ricardo Weitz, Hi Tech Imports North, LLC, Hi Tech Imports south, 

LLC, Budget Leasing, Inc. d/b/a Audi North Austin and Audi South Austin will be 

collectively referred to as the “Weitz Appellees” or “Intervenors.”
x

STATEMENT REGARDING ORAL ARGUMENT

There is no need for the Court to entertain oral argument in this case because 

the issues in this appeal have been settled through prior case rulings. However, if 

the Court determines that it would benefit from oral argument then Appellee 

requests it be allowed to present argument as well as Appellant.

STATEMENT OF FACTS

Although Appellants’ Statement of Facts contains the operative facts of the 

case it also contains improper argument and mischaracterizations of the facts that 

make it impossible for Appellee Walker to adopt such Statement of Facts. The 

operative facts of the case that are pertinent to this appeal are as follows:

Appellants and the Weitz Appellees are in a dispute over the proposed sale 

and transfer of two Austin, Texas, Audi dealerships. CR 367-369. The Board has 

the statutory authority to resolve such disputes. Tex. Occ. Code § 2301.151, et 

seq. The dispute was submitted to the Board for a resolution and the Board 

subsequently referred the case to SOAH for trial. CR 399-502. The SOAH 

Appellees then issued a Proposal for Decision recommending that the Board issue 

a final decision rejecting the proposed transferees, (the Weitz Appellees). CR 399-

502. The Board issued a final order dismissing the case for a lack of jurisdiction. 

CR 503-505. 
xi

Rehearing was granted by the Board pursuant to a motion for rehearing filed 

by the Weitz group. CR 1647-1667 and 1794. Upon such rehearing, the Board 

voted to remand the case to SOAH for further proceedings, including consideration 

of an April 30, 2013, letter between the parties to the dispute. CR 168-169. The 

letter in question is attached hereto as Appendix Tab 8. On February 13, 2015, 

Walker signed an Interim Order remanding the case to SOAH for further 

proceedings. CR 1634-1635. Appellant Audi filed a suit in district court in Travis 

County, Texas, alleging ultra vires acts in the remand of the case and the reopening 

of evidence at SOAH and seeking to enjoin the remanded SOAH proceedings from 

going forward. CR 117-148. After the denial of a request for temporary 

restraining order, Walker filed his Plea to the Jurisdiction alleging the doctrine of 

sovereign immunity protected him and the Board from suit. CR 821-827. The trial 

court granted the Pleas to the Jurisdiction and dismissed the case for want of 

subject matter jurisdiction. CR 2030-2031. Audi then filed this appeal and sought 

temporary relief to prevent SOAH from taking further action on the remanded 

case. Such request for temporary relief was denied by this Court on July 8, 2015.
xii

ISSUES PRESENTED FOR REVIEW

1. Defendants/Appellees were sued in their official capacities for ultra vires 

acts as required by the Supreme Court’s City of El Paso v. Heinrich, 284 S.W.3d 

366, 369-70, 73 (Tex. 2009) decision. Did the trial court err by dismissing this 

case since the Defendants/Appellees were not entitled to governmental immunity 

because their actions (reopening evidence and ordering/conducting a remand of the 

administrative Contested Case after a PFD had issued) exceeded their statutory 

powers?

2. Did the trial court err by dismissing the case below since the Texas Supreme 

Court has held that exhaustion of administrative remedies is not required where, as 

here, a government official’s actions exceed his or her powers?

Since both of Appellants’ issues set forth above contain self-serving argument and 

can be combined into one issue, both will be addressed herein as one in the 

following manner:

A. The trial court properly granted Walker’s Plea to the Jurisdiction.

B. Remand of the matter to SOAH for consideration of additional evidence 

was not an ultra vires act.

C. The remand order of the Board complies with motion to remand the 

case as it was passed by the Board.
1

NO. 03-15-00285-CV

____________________________________________________

IN THE THIRD COURT OF APPEALS

AT AUSTIN, TEXAS

____________________________________________________

VOLKSWAGEN GROUP OF AMERICA, INC., and AUDI OF AMERICA, 

INC.,

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 Judges for the State Office of Administrative 

Hearings,

Appellees.

____________________________________________________

On Appeal from the 353rd District Court, Travis County, Texas

___________________________________________________

JOHN WALKER, III’S APPELLEE BRIEF

____________________________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

Appellee, John Walker III, in his Official Capacity as Chairman of the Texas 

Department of Motor Vehicles Board (“Walker”), by and through the Office of the 

Attorney General of Texas and the undersigned Assistant Attorney General, 

submits the following brief in the above-captioned appeal.
2

STANDARD OF REVIEW

A question of law is reviewed de novo. El Paso Natural Gas Co. v. Minco 

Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999). Therefore, the granting of a plea 

to the jurisdiction shall be reviewed de novo. Tex. Dep’t of Parks & Wildlife v. 

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In a de novo review, the reviewing 

court conducts a review of the record to make its own legal determinations and 

conclusions. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998).

SUMMARY OF THE ARGUMENT

The trial court does not have subject matter jurisdiction of this case because 

there is no final order of the Board and no motion for rehearing has been denied. 

The order being complained of by Appellants is an interim order. Therefore, 

Appellants have not exhausted their administrative remedies and the trial court has 

no jurisdiction of this case. Until a motion for rehearing is overruled, the 

administrative order is not a final and appealable order. In short, the Appellants

sought to enjoin the administrative process where there is not a final decision.

Appellee Walker and the Board’s action in remanding the case to SOAH for 

the consideration of additional evidence was not an ultra vires act. The Legislature 

endowed upon the Texas Department of Motor Vehicles (“TxDMV”) the exclusive 

jurisdiction to determine disputes between manufacturers and dealers concerning 
3

sales of automobile dealerships within the State of Texas. Appellants allege the 

remand order was ultra vires because that power was not specified by statute. 

However, TxDMV’s jurisdiction over manufacturer/ dealer disputes is undisputed. 

The fact that TxDMV’s Board made a decision that Appellants did not like does 

not make that decision ultra vires. Even if the remand order was given in error, 

Appellants have a legal remedy to correct such alleged mistake by virtue of its suit 

for judicial review upon the issuance of a final order of the Board.

ARGUMENT

A. The trial court properly granted Walker’s Plea to the Jurisdiction.

The trial court does not have subject matter jurisdiction of this case because 

there is no final order of the Board and no motion for rehearing has been denied. 

The order of remand being complained of by Appellants is an interim order. CR 

168-169. Appellants have not exhausted their administrative remedies and the 

trial court properly dismissed the case for lack of subject matter jurisdiction of this 

case. Tex. Gov’t Code § 2001.145 states that a timely filed Motion for Rehearing 

is a prerequisite to the filing of an appeal of an administrative order. Tex. Gov’t 

Code § 2001.144(2) states that when a motion for rehearing is timely filed a 

decision is final when “(A) the order overruling the motion for rehearing is 

rendered; or (B) the motion is overruled by operation of law.” 
4

Tex. Gov’t Code § 2001.146 provides that a motion for rehearing is overruled as a 

matter of law if, in the absence of a date fixed by order, no order on the motion for 

rehearing is rendered within 90 days after the date the party received notice of the 

decision. Until a motion for rehearing is overruled, the administrative order is not 

a final and appealable order. The Appellants continue to seek to enjoin the 

administrative process, their legislatively mandated legal remedy, but there is not a 

final decision until such time as the Motion for Rehearing is overruled, by order or 

as a matter of law. Until such time, said decision by the Board is not a final and 

appealable order as provided in the Administrative Procedures Act. Tex. Gov’t 

Code § 2001.145. In this case, Appellants seek to enjoin the enforcement of an 

administrative order prior to the issuance of a final order, much less the disposition 

of a motion for rehearing. This action is inappropriate because the trial court 

cannot obtain jurisdiction over the dispute until the Appellants have exhausted 

their administrative remedies. See Lindsay v. Sterling, 690 S.W.2d 560 (Tex. 

1985). This matter is just not ripe for adjudication because the administrative 

process is not completed.

Subject matter jurisdiction is essential to the authority of a court to decide a 

case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). 

In any lawsuit, a plaintiff must allege facts that affirmatively demonstrate the 
5

court’s jurisdiction to hear the cause of action. Id. at 446. A plea to the 

jurisdiction is the vehicle through which a party contests the trial court’s authority 

to determine the subject matter of a cause of action. Bland Indep. Sch. Dist. v. 

Blue, 34 S.W.3d 547, 554 (Tex. 2000). The purpose of a plea to the jurisdiction is 

to dismiss a cause of action without regard to whether it has merit. Id. Sovereign 

immunity from suit deprives a court of subject matter jurisdiction if jurisdictional 

prerequisites are not followed. Reata Const. Corp. v. City of Dallas, 197 S.W.3d 

371, 374 (Tex. 2006). When an administrative agency has exclusive jurisdiction 

over a dispute dismissal of the action is mandatory. Thomas v. Long, 207 S.W.3d 

334, 340 (Tex. 2006). Plaintiffs’ claims for declaratory relief against Walker are 

barred because, in City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009), the 

Texas Supreme Court expressly held that ultra vires suits for declaratory relief 

may only be brought against state officials in their official capacities and not 

against the state itself or its agencies. Heinrich, 284 S.W.3d at 372-73; accord 

Tex. State Bd. Veterinary Med. Exam’rs v. Giggleman, 408 S.W.3d 696 (Tex. 

App.—Austin 2004, no pet.), at *2 n.10. These ultra vires acts must either involve 

actions that exceed that state official’s authority or involve a refusal to perform a 

purely ministerial act. Suit for ultra vires acts will not lie when an official is 

required to exercise his or her discretion in the performance of his or her duties. 
6

Heinrich at 372. Here, all of Appellants’ claims for declaratory relief are premised 

on alleged ultra vires acts involving the Board’s decision to remand the 

administrative case to SOAH for consideration of additional evidence. Appellants 

claim that the Board exceeded its authority by remanding the matter to SOAH for 

further evidence. Clearly, the actions of Walker and the Board in the 

administrative process did not exceed their statutory authority in as much as 

TxDMV and it’s Board are granted exclusive jurisdiction to over all aspects of the 

distribution and sale of motor vehicles in the State of Texas, including original 

jurisdiction to determine its own jurisdiction. Tex. Occ. Code § 2301.151. See

Appendix Tab 1. Specifically, the Board may take “any action that is specifically 

designated or implied under [Chapter 2301] or that is necessary or convenient to 

the exercise of the power and jurisdiction granted under Subsection (a). Tex. Occ. 

Code § 2301.151. Additionally, “the board has all powers necessary, incidental, or 

convenient to perform a power or duty expressly granted under this chapter.” Tex. 

Occ. Code § 2301.153. See Appendix Tab 2. TxDMV and it’s Board are further 

vested with authority to regulate all aspects of the sales of dealerships and 

dealership/manufacturer disputes. Tex. Occ. Code §§ 2301.359, 2301.360, 

2301.458. See Appendix Tabs 3 and 4. See also Buddy Gregg Motor Homes, Inc. 

v. Motor Vehicle Bd. of Tex. Dep’t of Transp., 156 S.W.3d 91 (Tex. App.—Austin 
7

2004, pet. denied). In the dispute between Appellants and the Weitz Appellees, the 

Legislature has given the Board the unambiguous authority to rule on all issues. 

The Board’s remand order in this case cannot be ultra vires since it related directly 

to the dispute over the sale of the Audi dealerships in question and was conducive 

to the issuance of a final order as that power was granted to the Board in Tex. Occ. 

Code § 2301.709(c). See Tex. Occ. Code § 2301.709(d). See Appendix Tab 5. An 

action is ultra vires only when an agency issues an order completely outside its 

statutory jurisdiction or “without any authority whatsoever.” Friends of Canyon 

Lake, Inc. v. Guadalupe-Blanco River Auth., 96 S.W.3d 519 (Tex. App.—Austin 

2002, pet. denied); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 

(1984). The ultra vires exception to the requirement of exhaustion of 

administrative remedies only applies when “the administrative agency lacks 

jurisdiction. Appraisal Review Bd. of Harris Cnty. Appraisal Dist. v. O’Connor & 

Assoc., 267 S.W.3d 413, 419 (Tex. App.—Houston [14th Dist.] 2008, no pet.). 

Mere mistakes or errors in procedure in the exercise of the Board’s authority do 

not render the Board’s action ultra vires. Friends of Canyon Lake, Inc. v. 

Guadalupe-Blanco River Auth., 96 S.W.3d at 528; Coastal Habitat Alliance v. 

Pub. Util. Comm’n of Tex., 294 S.W.3d 276, 285 (Tex. App.—Austin 2009, no 

pet.). Appellants claim the Board made a mistake in remanding the case to SOAH 
8

because it did not have statutory authority to do so. It is clear that the Board has 

exclusive jurisdiction over manufacturer/dealership disputes. Tex. Occ. Code §§

2301.359, 2301.360, 2301.458. Even assuming arguendo that the Board made a 

mistake in issuing such order, it had clear statutory jurisdiction to rule on the 

dispute. It is not ultra vires for an agency to incorrectly interpret the law nor does 

the mere allegation of ultra vires acts avoid the sovereign immunity enjoyed by 

State entities. Coastal Habitat Alliance v. Pub. Util. Comm’n of Tex., 294 S.W.3d 

276, 285 (Tex. App.—Austin 2009, no pet.). “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.” N. Alamo Water Supply Corp. v. Tex. 

Dep’t of Health, 839 S.W.2d 455, 458-59 (Tex. App.—Austin 1992, writ denied). 

Further, rulings in the administrative process necessarily involve the exercise of 

statutory discretion by the agency officials, so the ultra vires exception to the 

doctrine of sovereign immunity is not implicated. 

Finally, the trial court lacks jurisdiction over this matter because Appellants 

seek to control State action in contravention of the doctrine of sovereign immunity. 

Bd. of Trustees of Galveston Wharves v. O’Rourke, 405 S.W.3d 228 (Tex. App.—

Houston [1st Dist.] 2013, no pet.); Tex. Logos, L.P. v. Tex. Dep’t of Transp., 241 

S.W.3d 105, 118 (Tex. App.—Austin 2007, no pet.). A suit seeks to control state 
9

action when the trial court’s judgment would “effectively direct or control a 

government official in the exercise of his or her statutory authority.”

(Emphasis added). Dir. of Dep’t of Agric. & Envtl. v. Printing Indus. Ass’n of 

Tex., 600 S.W.2d 264 (Tex. 1980). In this case, Appellants sought an order of the 

trial court enjoining Appellees Walker and the SOAH Appellees from taking any 

further action in the administrative process. CR 117-148. When a suit alleges 

“acts within the officer’s legal authority and discretion, the claim seeks to control 

state action, and is barred by sovereign immunity.” Creedmoor-Maha Water 

Supply Corp. v. Tex. Comm’n on Envtl. Quality, 307 S.W.3d 505, 515-516 (Tex. 

App.—Austin 2010, no pet.). This suit is clearly attempting to control state action 

in as much as Audi was seeking an order from the trial court directing Walker and 

SOAH how to proceed in an administrative process that is solely within their 

statutory purview and is, therefore, barred by sovereign immunity.

B. Remand of the matter to SOAH for consideration of additional evidence 

was not an ultra vires act.

While no statute specifically authorizes the Board to issue a remand order 

such as the one in question, the broad powers granted to the Board by Tex. Occ. 

Code § 2301.151 and § 2301.709 allow the Board to take any action it deems 

advisable to aid in the resolution of the dispute. Consideration of the April 30, 

2013 letter at issue certainly concerned a matter over which the Board had 
10

jurisdiction since the case involved the dispute over the proposed transfer of 

ownership of the two dealerships. See Appendix Tab 8. Perhaps, as alleged by 

Appellants, the consideration of the April 30th letter violated the Tex. Occ. Code §

2301.709(b) requirement that only evidence presented in a “timely manner” should 

be reviewed by the Board but the consideration of such evidence was certainly not 

ultra vires. If a mistake was made by including such letter in the evidence 

reviewed by SOAH then that mistake can by rectified in Appellants’ suit for 

judicial review as provided in Tex. Occ. Code § 2301.751. 

Further, the powers granted to the Board by Tex. Occ. Code § 2301.151 and 

§ 2301.709 are specific to the TxDMV and its Board while provisions in the APA, 

including Tex. Govt’ Code § 2001.058, are more general in nature in that they 

apply broadly to all administrative agency actions at SOAH. Moreover, in the 

event of a conflict with the Government Code, Chapter 2301 of the Occupations 

Code will prevail. Tex. Occ. Code §2301.702. See Appendix Tab 6. Chapter 2301 

allows the Board to take virtually any action necessary to issue a final order and 

that power cannot be subverted or limited by provisions of the APA as argued by 

Appellants. 
11

C. The remand order complies with the motion to remand the case as 

passed by the Board.

Appellants argue that Appellee Walker failed to sign an order that 

accurately reflected the Board’s motion and that the motion did not include 

consideration the letter in question. However, Appellants ignore the portion of the 

motion that directs remand “for the reasons outlined by Mr. Duncan” and “for all 

the reasons set forth” by Mr. Duncan (as well as a determination concerning 

certain conditions suggested in the PFD). CR 158-159. As General Counsel for 

TxDMV and the Board, it is undisputed that, prior to the motion being passed, 

David Duncan had recommended the matter be remanded to SOAH for 

consideration of the April 30, 2013 letter “to remand to SOAH to consider the 

document we received in the period between the Board’s last action and today”. 

CR 158-159. See Appendix Tab 9. Appellants blatantly ignore that portion of the 

motion that encompassed consideration of the letter (“for the reasons outlined by 

Mr. Duncan”) in question to claim that the remand order did not comport with the 

corresponding motion passed by the Board. Simply put, the motion to remand the 

case to SOAH that was passed by the Board included a number of items to be 

considered, including the April 30, 2013 letter. The remand order signed by 

Walker comports with the motion. See Appendix Tab 7. However, once again, in 

the event that the remand order somehow does not agree with the motion as argued 
12

by Appellants then such alleged defect may be rectified in Appellants’ suit for 

judicial review as was contemplated by the Legislature. 

CONCLUSION AND PRAYER

For the foregoing reasons, Appellee Walker respectfully requests that this 

Court affirm the Trial Court’s Order Granting of Walkers’ Plea to the Jurisdiction 

and for such other and further relief to which Appellee may be entitled.

Dated: August 14, 2015

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for Civil Litigation

DAVID A. TALBOT, JR.

Division Chief, Administrative Law Division
13

/s/ Dennis M. McKinney

Dennis M. McKinney

Assistant Attorney General

State Bar No. 13719300

OFFICE OF THE TEXAS ATTORNEY GENERAL

ADMINISTRATIVE LAW DIVISION

P. O. Box 12548

Austin, Texas 78711-2548

Telephone: (512) 475-4020

Facsimile: (512) 320-0167

dennis.mckinney@texasattorneygeneral.gov

Attorneys for Appellee Walker

CERTIFICATE OF COMPLIANCE

I hereby certify compliance with Texas Rules of Appellate Procedure 9 and 

that there are 4,490 words in this document. Microsoft Word was used to prepare 

this filing and calculate the number of words in it.

/s/ Dennis M. McKinney 

Dennis M. McKinney

Assistant Attorney General
14

CERTIFICATE OF SERVICE

I hereby certify that, in compliance with Rule 9.5 of the Texas Rules of 

Appellate Procedure, a true and correct copy of the above and foregoing document 

has been served on the following on this the 14th day of August, 2015:

Billy M. Donley 

Mark E. Smith 

811 Main Street, Suite 1100 

Houston, Texas 77002-6111 

bdonley@bakerlaw.com 

mesmith@bakerlaw.com

S. Shawn Stephens

James P. Sullivan

King and Spalding

1100 Louisiana Suite 4000

Houston, Texas 77002

Fax 713-751-3290

Attorney for Appellants Volkswagon Group of America, Inc., and Audi of 

America, Inc.

Kimberly Fuchs 

Assistant Attorney General 

Texas Attorney General’s Office 

P.O. Box 12548 

Austin, Texas 78711 

kimberley.fuchs@texasattorneygeneral.gov 

Attorney 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

J. Bruce Bennett

Cardwell, Hart & Bennett

807 Brazos Suite 1001

Austin, Texas 78701

jjb.chblaw@abcglobal.net

Fax 512-322-0808
15

William R. Crocker

807 Brazos Suite 1014

Austin, Texas 78701

crockerlaw@earthlink.net

Fax 512-474-2540

Attorneys for Appellees

Ricardo M. Weitz, et al

/s/ Dennis M. McKinney 

Dennis M. McKinney

Assistant Attorney General
16

NO. 03-15-00285-CV

____________________________________________________

IN THE THIRD COURT OF APPEALS

AT AUSTIN, TEXAS

____________________________________________________

VOLKSWAGEN GROUP OF AMERICA, INC., and AUDI OF AMERICA, 

INC.,

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 Judges for the State Office of Administrative 

Hearings,

Appellees.

____________________________________________________

On Appeal from the 353rd District Court, Travis County, Texas

___________________________________________________

APPENDIX TO JOHN WALKER, III’S APPELLEE BRIEF

____________________________________________________

1. Texas Occupations Code § 2301.151

2. Texas Occupations Code § 2301.153

3. Texas Occupations Code § 2301.359

4. Texas Occupations Code § 2301.360

5. Texas Occupations Code § 2301.709

6. Texas Occupations Code § 2301.702

7. Remand Order (02/13/2015)

8. April 30, 2013 Letter

9. Pages 13 & 14 from the transcript of the February 13, 2015 Texas 

Department of Motor Vehicles Board Meeting
APPENDIX

TAB 1
S 2301.151. General Jurisdiction of Board, TX OCC S 2301.151

Texas Statutes and Codes Annotated

of MotorVehicles & Annos

Sale or of Motor &

V.T.C.A., Occupations Code 5 z3or.r5r

g z3or.r5r. General Jurisdiction of Board

Effective: June 1, zoo3

Currentness

(a) The board has the exclusive original jurisdiction to regulate those aspects of the distribution, sale, or lease of motor

vehicles that are governed by this chapter, including the original jurisdiction to determine its own jurisdiction.

(b) The board may take any action that is specifically designated or implied under this chapter or that is necessary or

convenient to the exercise of the power and jurisdiction granted under Subsection (a).

Credits

Added by Acts 200l,//thl-eg., ch. 1421, $ 5, eff. June 1,2003. Amended by Acts 2003, 78th Leg., ch. 1276, þ l4A'605(a),

eff. Sept. 1,2003.

V. T. C. 4., Occupations Code $ 2301.151, TX OCC $ 2301.151

Current through effective immediately through Chapter 46 of the 2015 Resular Session of the 84th Legislature

End ofDocumcnt @ 2015 Thomson Reuters. No claim to original U.S. Govemment Works.

":,-.,t;:,..';Np:çt @ 2015 Thomson Reuters. No claim to original U.S. Government Works. I
APPENDIX

TAB 2
S 2301.153. General Powers of Board, TX OCC S 2301.153

ernon's Texas Statutes Annotated

Motor Vehicles and

A.

V.T.C.A., Occupations Code $ 23o1.153

g zgor.r53. General Powers of Board

Effective: September L, 2ort

Currentness

(a) Notwithstanding any other provision of law, the board has all powers necessary, incidental, or convenient to perform a

power or duty expressly granted under this chapter, including the power to:

(l) initiate and conduct proceedings, investigations, or hearings;

(2) administer oaths;

(3) receive evidence and pleadings;

(4) issue subpoenas to compel the attendance ofany person;

(5) order the production ofany tangible property, including papers, records, or other documents;

(6) make findings of fact on all factual issues arising out of a proceeding initiated under this chapter;

(7) specify and govern appearance, practice, and procedures before the board;

(8) adopt rules and issue conclusions oflaw and decisions, including declaratory decisions or orders;

';'.t;;;.ii:1,"';Next @ 2015 Thomson Reuters. No claim to original U.S. Government Works I
S 2301 .1 53. General Powers of Board, TX OCC S 2301.1 53

(9) enter into contracts;

(10) execute instruments;

(l l) retain counSel;

( 12) use the services of the attorney general and institute and direct the conduct of legal proceedings in any forum;

(13) obtain other professional services as necessary and convenient;

(14) impose a sanction for contempt;

(15) assess and collect fees and costs, including attorney's fees;

(16) issue, suspend, or revoke licenses;

(17) prohibit and regulate acts and practices in connection with the distribution and sale of motor vehicles or \varranty

performance obligations;

(18) issue cease and desist orders in the nature oftemporary or permanent injunctions;

(19) impose a civil penalty;

(20) enter an order requiring a person to:

(A) repurchase property under Section 2301.465 and pay costs and expenses of a parfy in cormection with an order

entered under that section;

2 llestla-øNexf @ 2015 Thomson Reuters. No claim to original U.S. Government Works.
S 2301.153. General Powers of Board, TX OCC S 2301.153

(B) perform an act other than the payment of money; or

(C) refrain from performing an act; and

(21) enforce a board order,

(b) The board may inspect the books and records of a license holder in connection with the performance of its duties under

this chapter.

Credits

Added by Acts 200l,77thleg., ch. 1421, $ 5, eff. June 1,2003. Amended by Acts 2003,78th Leg., ch. 1276, ç 144.606(a),

eff. Sept. 1,2003; Acts 2011, 82nd Leg., ch. 1290 (H.B. 2017), $ 2, eff. Sept. l, 201I'

Editors'Notes

REVISOR'S NOTE

2012 Main Volume

Section 3.03(a), V.A.C.S. Article 4413(36), provides that the board "shall have" and "may" exercise the powers

granted to it under the act. The revised law omits this provision as unnecessary as the grant ofeach individual

power under the article to the board is sufficient authority for the board to exercise that power, and the specific

grant provides whether the power is discretionary or mandatory.

Notes of Decisions (3)

V. T. C.4., Occupations Code $ 2301.153, TX OCC $ 2301.153

Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session ofthe 84th Legislature

End ofDocument O 2015 Thomson Reuters. No claim to original U.S. Govemment Works.

';1,b.,\lz.:,t\ext @2015 Thomson Reuters. No claim to original U.S. Government Works 3
APPENDIX

TAB 3
S 2301.359. Transfer of Ownership by Dealer, TX OCC S 2301.359

Vernon's Texas Statutes and Codes Annotated

Occupations Code (Refs & Annos)

V.T.C.A., Occupations Code $ 23o1.9S9

g 23or.359. Transfer of Ownership by Dealer

Effective: September r, 2ott

Currentness

(a) A dealer must notifu the manufacturer or distributor of a vehicle the dealer is franchised to sell of the dealer's decision to

assign, sell, or otherwise transfer a franchise or a controlling interest in the dealership to another person. The notice is the

application by the dealer for approval by the manufacturer or distributor ofthe transfer.

(b) Notice under Subsection (a) must:

(1) be in writing and include the prospective transferee's name, address, hnancial qualifications, and business experience;

and

(2) be sent by certified mail, return receipt requested

(c) The notice must be accompanied by:

(l) a copy ofpertinent agreements regarding the proposed assignment, sale, or transfer;

(2) completed application forms and related information generally used by the manufacturer or distributor in reviewing

prospective dealers, if the forms are on file with the board; and

(3) the prospective transferee's written agreement to comply with the franchise to the extent that the franchise is not in

conflict with this chapter.

1 '7J;:':.t!:,.,.¡flp'¡t O 2015 Thomson Reuters. No claim to original U.S. Government Works.
S 2301.359. Transfer of Ownership by Dealer, TX OCC S 2301.359

(d) Not later than the 60th day after the date of receipt of a notice and application under this section, a manufacturer or

distributor shall determine whether a dealer's prospective transferee is qualihed and shall send a letter by certifìed mail,

return receipt requested, informing the dealer of the approval or the unacceptability of the prospective transferee. If the

prospective transferee is not acceptable, the manufacturer or distributor shall include a statement setting forth the material

reasons for the rejection.

(e) A manufacturer or distributor may not unreasonably withhold approval of an application filed under Subsection (a).

(Ð A" application filed under this section is approved unless rejected by the manufacturer or distributor in the manner

provided by this section.

(g) In determining whether to approve an application filed under Subsection (a), a manufacturer or distributor may consider:

(l) the prospective transferee's financial and operational performance as a franchised dealer, ifthe prospective transferee is

or has been a franchised dealer;

(2) the prospective transferee's moral character; or

(3) the extent to which a prospective transferee satisfies any criteria developed by the manufacturer or distributor and made

available to the prospective transferee, specifically to determine the business experience and financial qualifications of a

prospective transferee.

(h) A manufacturer or distributor may consider the criteria developed under Subsection (g)(3) only if the criteria are in

writing, are reasonable, and are uniformly applied in similar situations.

(i) It is unreasonable for a manufacturer or distributor to reject a prospective transferee who is of good moral character and

who satistes the criteria developed under Subsection (g)(3).

Credits

Added by Acts 2001,77rh Leg., ch. 1421, $ 5, eff. June 1,2003. Amended by Acts 20ll,82nd Leg., ch. 137 (S.8. 529),, 2,

eff. Sept.1,2011.

Notes of Decisions (6)

1,11e'rtia,.vNext' O 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
S 2301.359. Transfer of Ownership by Dealer, TX OCC S 2301.359

V. T. C. 4., Occupations Code $ 2301.359, TX OCC $ 2301.359

Current th¡oush Chapters effective immediately through Chapter 46 of the 2015 Reeular Session of the 84th Leqislature

End ofDocument @ 2015 Thomson Reuters. No claim to original U.S. Govemment tüorks.

V/ectt*wNexf @2015 Thomson Reuters. No claim to original U.S. Government Works 3
APPENDIX

TAB 4
S 2301.360. Review by Board Following Denial of Transfer, TX.OCC S 2301.360

Vernon's Texas Statutes and Codes Annotated

Code &

of Motor Vehicles and &

Srr A.

or Lease MotorV &

V.T.C.A., Occupations Code 5 23o1.360

$ z3or.36o. Review by Board Following Denial of Transfer

Effective: September \ 2oog

Cnrrentness

(a) A dealer whose application is rejected under Section 2301.359 may file a protest with the board. A protest filed under this

section is a contested case.

(b) In a protest under this section, the board must determine whether the rejection was reasonable under the criteria described

by Section 2301.359. The burden is on the manufacturer or distributor to prove that the prospective transferee is not qualified

under the criteria. The board shall enter an order holding that the prospective transferee either is qualifred or is not qualified.

(c) Ifthe board's order is that the prospective transferee is qualified, the dealer's franchise is amended to reflect the change in

franchisee, and the manufacturer or distributor shall accept the transfer for all purposes.

(d) If the board's order is that the prospective transferee is not qualihed, the board may include in the order:

(l) specific reasons why the prospective transferee is not qualified; and

(2) specific conditions under which the prospective transferee would be qualihed.

(e) Ifthe board's order that a prospective transferee is not qualified includes specific conditions under which the prospective

transferee would be qualified, the board may retain jurisdiction of the dispute for a time certain to allow the dealer and

prospective transferee to meet the conditions.

Credits

,t;.,::.:.i;...',1\Jp't',1. @2015 Thomson Reuters. No claim to original U.S. Government Works
S 2301.360. Review by Board Following Denial of Transfer, TX OCC S 2301.360

Added by Acts 2001,77th Leg., ch. 1421, {i 5, eff. June 1,2003. Amended by Acts 2009, Slst Leg., ch. 684, þ 2, eff. Sept. 1,

2009.

Notes of Decisions (2)

V. T. C. 4., Occupations Code $ 2301.360, TX OCC $ 2301.360

Current through Chapters effective immediately through Chapter 46 of the 2015 Resular Session of the 84th Lesislature

End ofDocument @ 2015 Thomson Reuters. No claim to original U.S. Govemment Works.

'fle=tlawNexl @ 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
APPENDIX

TAB 5
S 2301.709. Review by Board, TX OCC S 2301.709

Vernon's Texas Statutes and Codes Annotated

Code Annos

Sale or of Motor

V.T.C.A., Occupations Code $ 2got.7og

$ z3or.7o9. Review by Board

Effective: September 7, 2org

Currentness

(a) In reviewing a case under this subchapter, the board or a person delegated power from the board under Section 2301.154

may consider only materials that are submitted timely.

(b) The board or a person delegated power from the board under Section230l.l54 may hear such oral argument from any

party as the board may allow.

(c) The board or a person delegated power from the board under Section 2301.154 shall take any further action conducive to

the issuance of a final order and shall issue a written hnal decision or order. A majority vote of a quorum of the board is

required to adopt a final decision or order ofthe board.

Credits

Added by Acts 2001,77th Leg., ch. 1421, {i 5, eff. June 1,2003. Amended by Acts 2007, 80th Leg., ch. 1403, $ 3, eff. Sept.

1,2007; Acts 20l3,83rdLeg., ch. 1135 (H.8.2741), $ 26, eff. Sept. 1,2013.

Notes of Decisions (7)

V. T. C.4., Occupations Code $ 2301.709, TX OCC $ 2301.709

Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document O 2015 Thornson Reutels. No clair¡ to orìginal U.S. Gover¡ment Works

',"j;,:'..'¡l:¿.lþ i,p:\l @2015 Thomson Reuters. No claim to original U.S. Government Works
APPENDIX

TAB 6
S 2301.702. Conflict With Other Law, TX OCC S 2301.702

Vernon's Texas Statutes and Codes

of Motor

r. Sale or Lease Motor Vehicles

Su o

V.T.C.A., Occupations Code $ 2got7o2

5 zgot.7oz. Conflict With Other Law

Effective: June t, zoo3

Cunentness

To the extent of a conflict between this chapter and Chapter 2001, Government Code, this chapter controls.

Credits

Added by Acts 2001,'77th Leg., ch. 1421, $ 5, eff. June 1,2003

V. T. C. 4., Occupations Code ç 2301.'702, TX OCC ç 2301"702

Current through Chapters effective immediately through Chapter 46 of the 2015 Resular Session of the 84th Lesislature

End ofDocument @ 2015 Thornson ReuteIs. No clairn to oliginal U S. Govet¡¡nent Wot*s.

. ;-.,:.':i ' .l'.Je:rt @ 20'1 5 Thomson Reuters. No claim to original U.S. Government Works I
APPtrNDIX

TAB 7
BOARD O['TIM TEXAS DEPARTMENT OF MOTOR YEHICLFS

Budget Leasing,Inc, tl/b/a Audi

North Austin and Audi South Austin,

Protestants, sn¿ Ricardo M. Weitzr IIi Tech

Imports North, LLC, Hi Tech Imports

South, LLC,Hi Tech Imports LLC'

Intervenors

v.

MVD DOCKET NO. 13-0008.LIC

SOAII DOCKET NO. 60E.13.4599.LIC

s

$

$

$

$

$

$

$

s

$

$

$

Volkswagen Group of Americar lnc. and

Porscbe Cars North Americar lnc,,

Respondents

INTERIM ORDER REMA}IÐING THE CASE TO THE STATts OFF'ICE OF'

ADMINISTRATTVE IIEARINGS FOR F'IJRTIMR PROCEEDINGS

On December 10, 2014, üte Board of the Texas Department of Motor Vehicles granted

rehearing in this matte(. The Board furds that substantial controversies continue tb exist and that

these controversies require further adjudication at the State Office of Administrative Hearings

through the contested case Process.

The Board remands this matter to the State Office of Administrative Hearings (SOAH)

for supplemental proceedings, limited to the following:

Did Audi receive the letterl dated April 30, 2013, from Ricardo M. Weitz to Sally

Grirnes, and should this letter be added to the record? If so, what effect, if any, does the letter

have on the issue of compliance with Tex. Occ. Code, $2301.359 in light of the agency's prior

decision in Gordon Rountree Motors, Ltd, v, Mazda Motors of Ameríca, MVD Docket No. 07-

0038 LIC2?

\ilhile adjudicating this case on remand, SOAH is also directed to review the qualifying

conditions set forth in Findings of Fact Nos. 154-158

Prospective Transferees Qualified3, and Volkswagen Group

lnc.'s Response to Intervenors' Motion to Find the Prospe

conclusion of this review, SOAH is directed to provide a specific finding that prospective

transferees either are qualified or are not qualified.

I A copy of which is aBached hereto as Exhlbit L

z A copy of which ¡s attachcd hcrcto as Exhlblt 2.

" A copy of which is ¿ltachc¡l bercto as Exhib¡t 3'

a 

A copy of which is attached hereto as Exhibit 4-

EXH.2 ß34
Accordingly, the Board requests SOAH conduct supplemental proceedings limited to the

taking of evidence and providing the Board with supplemental findings on the foregoing issues.

Regarding these supplemental proceedings, the Board holds that SOAH's opinion on retention of

jurisdiction is not properly a finding of fact or a conclusion of law. Under Occupations Code,

$2301.360(e), the decision to retain jurisdiction after the issuance of the Board's order is at the

sole discretion of the Board.

Given the complicated and lengthy nafire of the proceedings already conducted by

SOAH in this matte¡ the Board requests that the same administrative law judges who conducted

the initial proceedings be assigned to this mattq on remand.

The Board strongly urges SOAH to address this matter as expeditiously as possible. To

that end, the Board recognizes that accommodations regarding other Board cases may need to be

made and the Board authorizes SOAH to do whatever is necessary to fulfill the Board's request

to accelerate the adjudication of this natter,

Date: February 13,2Ql5

V/ IIL Chairman,

Department of Motor Vehicles

Daniel Avitia,

Motor Vehicle Division

Texas Department of lvlotor Vehicles

EXH. 2 ß3s
APPENDIX

TAB 8
Ðleþplueg

Aptil3o, zot3

Aucli North Arnerica, Inc.

$outlre.rrr Region

Attn: Ms. SallyGrirues

2S?o Norfhwiuds Pnrkwny, .9tritu. 5 oo

Alpharetta, eA Ao-oaÈ

Re:

Ricardo M.

Þear Salty,

'þlle/'),

87e9,'urd 'agregnreilt

Enclosecf please flrrd Buyet's Étpplic¿rtious f.çr eaeli dealeruhlpVia lecleral Express

Exhibit D

1792
APPENDIX

TAB 9
TEXAS DEPARTMENT OF MOTOR VEHICLES

BOARD MEETING

Friday,

February 13, 20L5

Lone Star Room

Building 1

4000 Jackson Avenue

Austin, Texas

BOARD MEMBERS

,Johnny Walker, Chair

Laura Ryan, Vice-Chair

Robert "Barney" Barnwell-r III

Luanne Caraway

Blake Ingram

Raymond Pal-acios

Victor Rodriguez

Marvin Rush

,Joseph Sl-ovacek

ON THE RECORD REPORTTNG

(512) 4s0-0342

Exhibit K to Original Petition ß4
1

2

3

4

5

6

1

ö

9

10

11

I2

13

1,4

15

I6

I1

1B

I9

ZU

2I

22

23

24

25

13

were proper as this matter \nlas and still is a contested

case, subject to the board's authority and the board's

September L2 ord.er I¡¡as never final and appealable.

Since the September meeting, the staff was made

a\^rare of and receíved a copy of a document that may

satisfy the statutory requirement that \^Ias discussed in

the September board meeting. Because that item is clearly

missing from the SOAH record, it's the staff's position

that the most appropriate outcome is to remand the matter

to SOAH so that the document can be considered by the SOAH

judges. The further adjudication referred to in the

board's December 10 order requires a remand to SOAH

because TxDMV hearing functions, incJ-uding the collection

of evidence and the findings and conclusions of law, are

generaì-ly deleqated to SOAH administrative Iaw judges in

accordance with Texas Occupations Code, Section

230I.704 (a) .

AII the parties to this case were provided with

copies of the staff's ïecommendation and the accompanying

documents in advance of today's meeting, and the staff has

prepared a draft order in line with that for your

consideration.

I've got with me Mr. Daniel- Avitia, the

director of the Motor Vehicle Division, in case there are

any technical questlons regarding the Motor Vehicle

ON THE RECORD REPORTING

(512) 450-0342

Exhibit K to Original Petition ls8
1

2

3

4

5

6

1

8

9

10

11

I2

13

T4

15

L6

I1

1B

I9

20

2I

22

23

24

25

74

Division position on this, and we're available to answer

any questions.

MR. SLOVACEK: Vlhat is the staf f 's

recommendation?

MR. DUNCAN: To remand to SOAH to consider the

document that we received in the period between the

board's last action and todaY.

MR. SLOVACEK: Mr. Chairman, f make a motion

that we remand to SOAH, for the reasons outÌined by Mr.

Duncan, this entire case, for all the reasons set forth,

to determine whether the interveners have, in fact'

satisfied the conditions of the proposaÌ for decision.

MR. PALACIOS: I second the motion.

MR. WALKER: We have a motion by Member

Sl-ovacek and we have as second by Raymond Palacios. Do we

have any comments or any questions by any of the board

members ?

AII

were going to

(No

MR.

in favor of

MR.

response. )

WALKER: ff so, I'd like to call a vote.

the motion?

SLOVACEK: Point of order. You said you

allow the people to taÌk about it.

WALKBR: I'm sorry. You're rightr lourre

SLOVACEK: Not that I think you ought to

ON THE RECORD REPORTING

(512) 450-0342

MR

MR

right.

Exhibit K to Original Petition ßs