the Texas Education Agency and Mike Morath, Commissioner of Education, in His Official Capacity v. Academy of Careers and Technologies, Inc. D/B/A Academy of Careers and Technologies Charter School ( 2015 )

ACCEPTED
03-15-00528-CV
6736273
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/1/2015 8:39:23 AM
JEFFREY D. KYLE
CLERK
No. 03-15-00528-CV
FILED IN
In the Third Court of Appeals 3rd AUSTIN,
COURT OF APPEALS
TEXAS
Austin, Texas 9/1/2015 8:39:23 AM
JEFFREY D. KYLE
Clerk
TEXAS EDUCATION AGENCY AND MICHAEL WILLIAMS,
COMMISSIONER OF EDUCATION, IN HIS OFFICIAL CAPACITY,
Appellants
v.
ACADEMY OF CAREERS AND TECHNOLOGIES, INC. D/B/A
ACADEMY OF CAREERS AND TECHNOLOGIES CHARTER SCHOOL,
Appellee
ACCELERATED APPEAL FROM CAUSE NO. D-1-GN-15-002879
200TH JUDICIAL DISTRICT COURT OF TRAVIS COUNTY, TEXAS
APPELLEE’S MOTION TO DISMISS ACCELERATED
APPEAL FOR WANT OF JURISDICTION
TO THE HONORABLE THIRD COURT OF APPEALS:
Appellee Academy of Careers and Technologies, Inc. d/b/a Academy of
Careers and Technologies Charter School files this motion asking the Court to
dismiss this appeal for want of jurisdiction.
1.   Appellants are the Texas Education Agency and Michael Williams,
Commissioner of Education (collectively “TEA”). Appellee is the Academy of
Careers and Technologies, Inc. d/b/a Academy of Careers and Technologies
Charter School (“ACT”).
2.   On August 21, 2015, TEA filed a notice of accelerated appeal to
challenge an order—purportedly signed the same date—denying its plea to the
jurisdiction and granting a temporary injunction. See Exhibit A. In a docketing
statement filed four days later, TEA again claimed to be appealing an order signed
on August 21, 2015.
3.   ACT’s undersigned counsel was not involved in the proceedings
below. From reviewing the district court’s file and communicating with the trial
judge’s staff, the undersigned has learned that no order granting a temporary
injunction or denying a plea to the jurisdiction was signed on August 21, 2015 or
afterward through the date of this filing.1 Thus, this appeal is premature. A
prematurely filed notice of appeal has no effect until the appellate deadline is
triggered and therefore does not vest this Court with jurisdiction. See TEX. R. APP.
P. 25.1(b), 27.1(a).
4.   Ordinarily, the Court might allow an appellant time to cure this sort of
jurisdictional defect. See, e.g., Smith Cnty. v. Popovac, No. 12-11-00329-CV, 2011
WL 6119266, at *1 (Tex. App.—Tyler Dec. 7, 2011, no pet.) (mem. op.)
1
The appellate record was due on August 31, 2015. Based on these observations, the record is not
expected to contain the order TEA is purportedly appealing.
2
(dismissing appeal from purported denial of plea to jurisdiction when trial court
had not yet memorialized its ruling in writing and appellant could not cure defect).
But the Court should not follow that course here. By asserting that appellate
jurisdiction has attached—incorrectly and perhaps even deliberately so—TEA
seeks to prevent the trial court from taking any further action while the case is on
appeal.2 See Exhibit A at 2 (asserting that alleged temporary injunction is
automatically stayed while appeal remains pending and that, by virtue of purported
challenge to denial of its jurisdictional plea, all proceedings before trial court are
stayed pending resolution of appeal). Compare In re State Bd. For Educator
Certification, 452 S.W.3d 802, 808-10 (Tex. 2014) (orig. proceeding) (holding that
governmental entity’s notice of appeal does not deprive trial court of discretion to
deny supersedeas), with In re Tex. Educ. Agency, 441 S.W.3d 747, 750 (Tex.
App.—Austin 2014, orig. proceeding [mand. denied]) (holding that district court
abused discretion by holding hearing and granting charter schools’ motion to deny
supersedeas after TEA filed notice of appeal and invoked statutory stay that
attaches when trial court denies plea to jurisdiction). This Court should not allow
TEA to create a perception in the trial court or elsewhere that its premature notice
of accelerated appeal could have such an effect.
2
Ironically, if TEA is correct and the proceedings below are already stayed, then the trial court
arguably lacks the ability to sign the very order TEA has prematurely sought to appeal.
3
CONCLUSION AND PRAYER
Appellee respectfully requests that the Court grant this motion and dismiss
this appeal for want of jurisdiction. Appellee requests all other appropriate relief to
which it is entitled.
Respectfully submitted,
SMITH LAW GROUP LLLP
1250 Capital of Texas Highway South
Three Cielo Center, Suite 601
Austin, Texas 78746
(512) 439-3230
(512) 439-3232 (fax)
By: /s/D. Todd Smith
D. Todd Smith
State Bar No. 00797451
todd@appealsplus.com
Counsel for Appellee, Academy of Careers
and Technologies, Inc. d/b/a Academy of
Careers and Technologies Charter School
CERTIFICATE OF CONFERENCE
In compliance with Texas Rule of Appellate Procedure 10.1(a)(5), I certify
that I attempted to confer with Erika Laremont, lead appellate counsel for
Appellants, but was unable to reach her before filing this motion. Given the relief
requested, appellee presumes the motion would be opposed.
/s/D. Todd Smith
D. Todd Smith
4
CERTIFICATE OF SERVICE
On September 1, 2015, in compliance with Texas Rule of Appellate
Procedure 9.5, I served this document by e-service, e-mail, facsimile, or mail to:
Erika M. Laremont
erika.laremont@texasattorneygeneral.gov
Assistant Attorney General
General Litigation Division
P.O. Box 12548
Austin, Texas 78711-2548
Counsel for Appellant
/s/ D. Todd Smith
D. Todd Smith
5
CAUSE NO. D-1-GN-15-002879
ACADEMY OF CAREERS AND § IN THE DISTRICT COURT
TECHNOLOGIES INC. d/b/a ACADEMY §
OF CAREERS AND TECHNOLOGIES §
CHARTER SCHOOL §
Plaintiff, §
§
v. § 98th JUDICIAL DISTRICT
§
TEXAS EDUCATION AGENCY and §
MICHAEL WILLIAMS in his Official §
Capacity as the Commissioner of Education §
Defendants. § TRAVIS COUNTY, TEXAS
DEFENDANTS’ NOTICE OF ACCELERATED APPEAL AND
NOTICE OF AUTOMATIC STAY
TO THE HONORABLE DISTRICT COURT JUDGE:
Defendants the Texas Education Agency and Michael L. Williams, Commissioner of
Education, in his Official Capacity, (“Defendants”) file this Notice of Accelerated Appeal of the
Court’s Order of the 200th District Court of Travis County, the Honorable Gisela D. Triana
presiding, signed August 21, 2015, in the above-referenced cause of action which denied
Defendants’ Plea to the Jurisdiction and granted Plaintiff’s temporary injunction.
Defendants are entitled to this interlocutory appeal pursuant to TEX. CIV. PRAC. & REM
CODE REM. CODE § 51.014(a)(4) and (8), which allows appeal from a district court’s interlocutory
order granting a temporary injunction or order denying a governmental unit’s plea to the
jurisdiction.
This appeal involves issues similar to those raised in two other matters involving three
charter schools—American Youthworks Charter School, Honors Academy, and Azleway Charter
Exhibit A
School —which are currently on appeal in the Court of Appeals for the Third Judicial District,
Austin, Texas, Nos. 03-14-00283-CV and 03-14-00360-CV.
ACCELERATED APPEAL
Pursuant to TEX. R. APP. P. 25.1(d)(6) and 28.1(a), Defendants give notice that this is an
accelerated appeal to the Third District Court of Appeals, as it is an appeal of an interlocutory
order allowed as of right by statute. See TEX. CIV. PRAC. & REM. CODE §§ 51.014(a)(4), (8).
NOTICE OF STAY OF ALL PROCEEDINGS IN TRIAL COURT PENDING
RESOLUTION OF THIS APPEAL
Defendants invoke TEX. R. APP. P. § 29.1(b) and TEX. CIV. PRAC. & REM. CODE § 6.001
by this Notice of Accelerated Appeal, thereby staying the Order awarding a temporary injunction.
See Public Utility Com’n of Texas v. Coalition of Cities for Affordable Utility Rates, 776 S.W.2d
221 (Tex.App.—Austin 1989) rev’d on other grounds by 798 S.W.2d 560 (pendency of an appeal
from an order granting interlocutory relief suspends order appealed from when appellant not
required to post bond). In light of Defendants’ denied jurisdictional challenge, they further invoke
TEX. CIV. PRAC. & REM. CODE § 51.014 (b) to stay “all other proceedings in the trial court pending
resolution” of this appeal of the August 21, 2015 Order.
DEFENDANTS ARE NOT REQUIRED TO POST A COST BOND
Notice is further given that pursuant to TEX. CIV. PRAC. & REM. CODE § 6.001,
Defendants are not required to file a bond for court costs. Defendants’ appeal is therefore
perfected upon the filing of the notice of appeal.
2
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation
ANGELA V. COLMENERO
Division Chief - General Litigation
/s/ Erika M. Laremont
ERIKA M. LAREMONT
State Bar No. 24013003
Assistant Attorney General
General Litigation Division
Post Office Box 12548, Capitol Station
Austin, Texas 78711-2548
512-463-2120 (Telephone)
512-320-0667 (Facsimile)
erika.laremont@texasattorneygeneral.gov
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing instrument has been sent via File &
ServeXpress and electronic mail on this the 21st day of August, 2015, to:
Ryan Henry
1380 Pantheon Way, Ste 215
San Antonio, TX 78232
Austin, TX 78701
(210) 569-6494 facsimile
/s/ Erika M. Laremont
ERIKA M. LAREMONT
3