City of Austin v. Travis Central Appraisal District The State of Texas And Individuals Who Own C1 Vacant Land and/or F1 Commercial Real Property Within Travis County, Texas ( 2016 )

ACCEPTED
03-16-00038-CV
11224329
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/20/2016 11:15:09 AM
JEFFREY D. KYLE
CLERK
NO. 03-16-00038-CV
IN THE COURT OF APPEALS FILED IN
FOR THE THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS
AUSTIN, TEXAS
AT AUSTIN, TEXAS 6/20/2016 11:15:09 AM
JEFFREY D. KYLE
CITY OF AUSTIN, Clerk
Appellant,
v.
TRAVIS CENTRAL APPRAISAL DISTRICT; INDIVIDUALS WHO OWN C1
(VACANT LAND) OR F1 (COMMERCIAL REAL) PROPERTY WITHIN
TRAVIS COUNTY, TEXAS and THE STATE OF TEXAS,
Appellees.
ON APPEAL FROM THE 126TH DISTRICT COURT
TRAVIS COUNTY, TEXAS
CAUSE NO. D-1-GN-15-003492
SUR-REPLY OF APPELLEES TEXAS ASSOCIATION OF REALTORS,
LOWE’S HOME CENTERS, LLC AND H E DRISKILL, LLC
JAMES E. POPP
State Bar No. 16139280
Jim.Popp@property-tax.com
MARK S. HUTCHESON
State Bar No. 00796805
Mark.Hutcheson@property-tax.com
DANIEL R. SMITH
State Bar No. 24013525
Daniel.Smith@property-tax.com
POPP HUTCHESON PLLC
1301 S. Mopac, Suite 430
Austin, Texas 78746
(512) 473-2661 - Telephone
(512) 479-8013 – Facsimile
COUNSEL FOR APPELLEES
ARGUMENT
Appellees Texas Association of Realtors, Lowe’s Home Centers, LLC, and
H E Driskill, LLC (collectively the “TAR Defendants”) hereby file this sur-reply to
address Part V of the reply filed by Appellant City of Austin (the “City”). (City’s
Reply at pp. 17-18).
The City cites Neeley v. West Orange-Cove Consolidated Independent
School District for the general test for standing, i.e., that there is (a) a real
controversy between the parties, which (b) will be actually determined by the
judicial declaration sought. 176 S.W.3d 746, 773 (Tex. 2005); (City’s Reply at pp.
17-18). The City contends that the issue of standing to bring its constitutional
challenge is broader than the scope of the word “implement,” and that it must have
a remedy to challenge statutes that it deems “unconstitutional.”
Citing the same general test for standing, Harris County Emergency Services
District No. 2 v. Harris County Appraisal District made clear that, in order for a
political subdivision to have standing, “the Texas Supreme Court has recognized
that the subdivision must be charged with implementing a statute it believes
violates the Texas Constitution.” 132 S.W.3d 456, 461 (Tex. App.—Houston [14th
Dist.] 2001, pet. denied). As with the appraisal district challenging the open-space
agricultural exemption in Nootsie and the municipality challenging the police
officer disciplinary hearing statute in Proctor, the school districts in Neeley
SUR-REPLY OF APPELLEES
CAUSE NO. 03-16-00038-CV 1
implemented the school finance ad valorem tax rate setting and collection statutes
that they were challenging. Neeley is consistent with the holding in Harris County
Emergency Services District and does not support the City’s position.
The City continues to bring the concept of “motive” into the analysis on
standing. It attempts to distinguish Harris County Emergency Services District by
characterizing the alleged injury in that case as “loss of revenue,” as opposed to a
requirement “to impose an unconstitutional tax.”1 The City’s motive in bringing
its constitutional challenge is irrelevant. The test is whether the City implements
the statutes that it challenges. Because it does not, the City has no standing to
challenge their constitutionality.
For the foregoing reasons and the reasons stated in the TAR Defendants’
response, the TAR Defendants respectfully request that the Court affirm the trial
court’s dismissal of the City’s lawsuit.
1
The City’s counsel argued a different motive to the trial court. At the summary judgment
hearing on October 7, 2015, counsel for the City stated:
Our constitutionality argument has to do with the fact that the appraisals and the
process in general on how they are done really deprives the City of revenue, so to
speak. Because there is unequal and uniform taxation, the City is not getting at
the additional revenue that is being lost by these provisions.
(2 RR 49:12-18).
SUR-REPLY OF APPELLEES
CAUSE NO. 03-16-00038-CV 2
Respectfully Submitted,
POPP HUTCHESON PLLC
1301 S. Mopac, Suite 430
Austin, Texas 78746
(512) 473-2661 - Telephone
(512) 479-8013 – Facsimile
/s/ Daniel R. Smith
JAMES E. POPP
State Bar No. 16139280
Jim.Popp@property-tax.com
MARK S. HUTCHESON
State Bar No. 00796805
Mark.Hutcheson@property-tax.com
DANIEL R. SMITH
State Bar No. 24013525
Daniel.Smith@property-tax.com
ATTORNEYS FOR APPELLEES
TEXAS ASSOCIATION OF REALTORS,
LOWE’S HOME CENTERS, LLC, AND
H E DRISKILL, LLC
SUR-REPLY OF APPELLEES
CAUSE NO. 03-16-00038-CV 3
CERTIFICATE OF COMPLIANCE
I certify that the foregoing document contains 4035 words, in compliance
with Rule 9,.4 of the Texas Rules of Appellate Procedure.
/s/ Daniel R. Smith
DANIEL R. SMITH
SUR-REPLY OF APPELLEES
CAUSE NO. 03-16-00038-CV 4
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of foregoing instrument has been
served, on this the 20th day of June, 2016 to the following:
Via E-Service
Andralee Cain Lloyd Cynthia A. Morales
Michael Siegel Attorney General’s Office
City of Austin – Law Department Financial Litigation and Charitable Trusts
andralee.lloyd@austintxas.gov Division
michael.siegel@austintexas.gov cynthia.morales@texasattorneygeneral.gov
Attorneys for Appellant The City of Attorney for Appellee State of Texas
Austin
G. Todd Stewart Lorri Michel
Tammy White-Chaffer Raymond Gray
Deborah S. Cartwright Shane Rogers
OLSON & OLSON, LLP MICHEL GRAY LLP
tstewart@olsonllp.com lorri@michelgray.com
tchaffer@olsonllp.com raymond@michelgray.com
dcartwright@olsonllp.com shane@michelgray.com
Attorneys for Appellee Travis County Attorneys for Homeowners Intervenors
Appraisal District and Defendant Junkyard Dogs
Bill Aleshire Thomas Michel
Aleshire Law, PC Griffith, Jay & Michel, LLP
bill@aleshirelaw.com thomasm@lawgjm.com
Attorneys for Appellee/Cross-
Appellant Junk Yard Dogs
/s/ Daniel R. Smith
DANIEL R. SMITH
SUR-REPLY OF APPELLEES
CAUSE NO. 03-16-00038-CV 5