### NO. 03-15- 00 285- 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 353 rd District Court, Travis County, Texas

___________________________________________________ JOHN WALKER, III’S APPELL EE 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 O FFICE OF THE T EXAS A TTORNEY G ENERAL 

### A DMINISTRATIVE 

### L AW 

### D IVISION 

### 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

### ii I DENTITY OF PARTIES AND COUNSEL Parties to the Trial Court’s Order: Defendant

s / Appell ee s : 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, LL C, Hi Tech Imports South, LLC, Budget Leasing, Inc. d/b/a Audi North Austin and Audi South Austin Plaintiff s /Appell ant

s : Volkswagen Group of America, Inc., and Audi of America, Inc.

__________________________________ Counsel: For Appell ee Walker : Dennis M. McKinney Assistant Attorney General State Bar No. 13719300 O FFICE OF THE 

### T EXAS 

### A TTORNEY 

### G ENERAL 

### A DMINISTRATIVE 

### L AW 

### D IVISION 

### P.O. Box 12548 Austin, Texas 78711

- 2548 Telephone: (512) 475

- 4020 Facsimile: (512) 320

- 0167 dennis

. mckinney @texasattorney general.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 F a csimile: 512

- 322

- 0808 William R. Crocker State Bar. No. 05091000 P.O. Box 1418 A ustin, Texas 787 67 crockerlaw@earthlink.net Telephone: (512) 478

- 5611 F a csimile: 512

- 474

- 2540

### iv

For Appell ant

s : 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 Gre gg 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)

.......................... x ii , 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
T ex. Gov’t Code § 2001.14 6

................................ ................................ ..................... 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 refe rred to as “CR ____.” The reporter’s record will be refe rred to as “ RR ( Vol. ___) ____.” Appell ee , 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.” Appell ant s , Volkswagen of America, Inc. and Audi of America, Inc., will be collectively refe rred to as “ Audi , ” or “Appellant s . ” Appellees Ricardo Weitz, Hi Tech Imports North, LLC , Hi Tech I m ports 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 REGARDIN G ORAL ARGUMENT There is no need for t he 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 t hat 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 mis characterizations 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 App ellees 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

- 50 5.

### 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, 20 13 , 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 c ase 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, 201 5

.

### 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 grant ed 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. 0 3
- 1 5
- 00 285
- CV

____________________________________________________

IN THE THIRD COURT OF APPEALS

AT AUSTIN , TEXAS

____________________________________________________ VOLKSWAGEN GROUP OF AMERICA, INC., and AUDI OF AMERICA, INC. , Appellant s , 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 Administrativ e Hearings , Appellees .

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

___________________________________________________ JOHN WALKER, III’S APPELLEE BRIEF

____________________________________________________ TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS: Appell ee , 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, submit s the following brief in the above

- captioned appeal

.

### 2 STANDARD OF REVIEW A question of law is reviewed de novo. El Paso N atural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999)

. The refore, 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 Appellant s is an interim order. Therefore, Appellant s have n ot exhausted their administrative remedies and the trial c ourt 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 Appellant s

s ought to enjoin the admini strative 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 Moto r 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 spe cified 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 er ror, Appellant s ha ve 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 grant ed Walker’s Plea to the Jurisdiction . The trial court d oes 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 exhau sted their administrative remedies and the trial court properly dismissed the case for lack of subject matter jurisdiction of this

case. T ex. 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

T ex. Gov’t Code § 2001.146 provid es that a motion for rehearing is overruled as a matter of law i f, 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 ap pealable order. T he 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. U ntil such time, said decision by the Board is not a final and appealable order as provided in the Administrative Procedures Act

. T ex. 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 c ourt cannot obtain jurisdiction over the dispute until the Appellants ha ve 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 juris diction if jurisdictional prerequisites are not followed. Reata Const. Corp. v. City of Dallas , 197 S.W.3d 371, 374 (Tex. 2006). When an administrative agen cy 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 agai nst 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 officia l 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 of ficial’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 37 2. 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 § 2301.15 1

. 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 necessar y , incidental, or convenient to perform a power or duty expressly granted under this chapter.” Tex. Occ. Code § 2301.153

. See Appendix Ta b 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 relate d 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 § 2301.70 9 (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.

— Austi n 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 Ha rris Cnty. Appraisal Dist. v

. O’Connor &
Assoc. , 267 S

. W

. 3d 413, 419 (Tex. App.

— Houston [14 th Dist. ] 2008, no pet.)

. Mere m istakes 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 A uth. , 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.)

. Appellant s 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.

— Aust in 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 (T ex. 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.
F inally, th e trial court lacks juris diction over this matter because Appell ant s 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.

— Hous ton [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 o r her statutory authority.” ( E mphasis added). Dir

. of Dep’t of Agric. & Envt l. v. Printing Indus. Ass’n of
Tex

. , 600 S.W.2d 264 (Tex. 1980) . In this case, Appell ant s s ought 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 of

ficer’s legal authority and discretion, the claim seeks to control state action, and is barred by sovereign immunity.” Creedmoor

- Maha Water
S upply 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 a ttempting to control state action in as much as Audi wa s seeking an order from th e 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 n ot an ultra vires act. While no statute specifically authorizes the Board to issue a remand order such as the one in question , the b road powers granted to the Board by Tex. Occ. Code § 2301.151 and § 2301.70 9 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 alleg ed by Appellants, the consideration of the April 30 th letter violated the Tex. Occ. Code § 2301.709(b ) requirement that only evidence presented in a “timely manner” should be reviewed by the Boa rd 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 § 2 301.751

. Further, t he powers granted to the Board by Tex. Occ. Code § 2301.151 and § 2301.70 9 are specific to the TxDMV and its Board while provision s in the APA , including Tex. Govt’ C ode § 2 0 01.058 , 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 C ode, Chapter 2301 of the Occupations Code will prevail. Tex . Occ. Code §2301.702

. See Appendix Tab 6

. Chapter 2301 allow s the Board to take vi rtually any action necessary to issue a final order and that power cannot be subverted or limited by provisions of the APA as argued by Appellant s .

### 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 1 58

- 159

. A s General Counsel for
TxDMV and the Board , i t 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 co nsider 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 t he 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 Appellant s 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 Tr ial Court’s Order G ranting of Walkers’ Plea to the Jurisdiction and for such other and further relief to which Appellee may be entitled

. Dated: August 14 , 201 5 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 O FFICE OF THE 

### T EXAS 

### A TTORNEY 

### G ENERAL 

### A DMINISTRATIVE 

### L AW 

### D IVISION 

### P. O. Box 12548 Austin, Texas 78711

- 2548 Tele p hone: (512) 475

- 4 020 Facsimile: (512) 320

- 0167 dennis

. mckinney @texasattorneygeneral.gov Attorneys for Appell

ee 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 co rrect copy of the above and foregoing document has been served on the following on this the 14th day of August , 201 5 : 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 7 7002 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 Bennet t Cardwell, Hart & Bennett 807 Brazos Suite 1001 Austin, Texas 78701 jjb.chblaw@abcglobal.net F ax 512

- 322

- 0808

### 15

William R. Crocker 807 Brazos Suite 1014 Austin, Texas 78701 crockerlaw@earthlink.net F a x 512

- 474

- 2540 Attorneys for Appellees Ricardo M. Weitz, et al is Leichter /s/ Dennis M. McKinney Dennis M. McKinney Assistant Attorney General

### 16 NO. 0 3
- 1 5
- 00 285
- CV

____________________________________________________

IN THE THIRD COURT OF APPEALS

AT AUSTIN , TEXAS

____________________________________________________ VOLKSWAGEN GROUP OF AMERICA, INC., and AUDI OF AMERICA, INC. , Appellant s , 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 353 rd 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 Departm ent of Motor Vehicles Board Meeting

# APPENDIX



# TAB 1S 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 2S 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 IS 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 3S 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. 2S 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 4S 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 WorksS 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 5S 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 6S 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 7BOARD 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 ß34Accordingly, 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 8Ðleþplueg 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 9TEXAS 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 ß41
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 ls81
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