Glenn Hegar, in His Official Capacity as Texas Comptroller of Public Accounts And the State of Texas v. Texas Horsemen's Partnership, LLP

ACCEPTED 03-16-00070-CV

10931800 THIRD COURT OF APPEALS

AUSTIN, TEXAS 6/2/2016 9:41:45 AM JEFFREY D. KYLE

CLERK

No. 03-16-00070-CV No. 03-16-00070-CV

_____________________________________________________________

FILED IN 3rd COURT OF APPEALS

AUSTIN, TEXAS In In the the Third

Third Court Court of of Appeals

Appeals

6/2/2016 9:41:45 AM

Austin, Texas

Austin, Texas JEFFREY D. KYLE _____________________________________________________________

Clerk T EXAS H

TEXAS ORSEMEN’S P

HORSEMEN'S ARTNERSHIP, LLP,

PARTNERSHIP, Plaintiff/Appellee, Plaintiff/ Appellee, v. v.

GLENNHEGAR, GLENN HEGAR,IN

INHIS OFFICIALCAPACITY

HISOFFICIAL CAPACITYAS

ASTHE TEXAS COMPTROLLER

THETEXAS COMPTROLLER OF P UBLIC A PUBLIC CCOUNTS, AND

ACCOUNTS, AND THE STATE OF TEXAS,

THE STATE TEXAS, Defendants/Appellants.

Defendants/Appellants.

_____________________________________________________________ Motion to Remand, Motion to Remand, or or in in the the Alternative, Alternative, to to Dismiss for

Dismiss for Lack Lack ofof Jurisdiction

Jurisdiction _____________________________________________________________ TO THE H To JUSTICES OF

ONORABLE JUSTICES HONORABLE THETTHIRD

OF THE HIRD C OURT OF A

COURT PPEALS:

APPEALS:

Pursuant to Pursuant to Texas

Texas Rule

Rule of Appellate Procedure

Procedure 10,

10, Plaintiff/Appellee Texas Horsemen’s Partnership, Horsemen's Partnership, LLP (the "Horsemen's

LLP (the “Horsemen’s Partnership")

Partnership”) respectfully respectfully files this Motion to Remand, or in the Alternative, to Dismiss for Lack

Dismiss for Lack of of Jurisdiction.

Jurisdiction. On June On 2016, the

June 1, 2016, the Horsemen's

Horsemen’s Partnership

Partnership filed filed aa Notice Nonsuit

Notice of Nonsuit Without Prejudice Without Prejudiceinin the trial court, the trial court, nonsuiting nonsuiting all all claims claims against against Defendants/Appellants Glenn Defendants/Appellants Hegar,

Glenn in inhis Hegar, hisofficial official capacity capacity as the Texas as the Texas Gardere01 -- 8745155v.1 Gardere01 8745155v.1 Comptroller of Public

Public Accounts,

Accounts, and and the the State

State of of Texas.

Texas. A True and Correct Copy of the Notice of the Notice of of Nonsuit

Nonsuit is is attached attached hereto hereto as Exhibit

Exhibit A. The Horsemen’s

The Horsemen's Partnership’s Notice of Partnership's Notice of Nonsuit

Nonsuit became became effective effective immediately immediately when when it was filed completely extinguished and it completely extinguished the underlying underlying case controversy between case or controversy between the parties. See, e.g.,

See, e.g., University

University of Tex. Med. of Tex. Med. Branch

Branch at Galveston

Galveston v. Estate of

v. Estate 195 S.W.3d

Blackmon, 195 S.W.3d 98, 100

100 (Tex.

(Tex. 2006).

2006). Accordingly, this Court

Accordingly, this Court lacks lacks jurisdiction over this interlocutory appeal. Id. at 99-101.

Because there is no longer a justiciable controversy between the parties, the Horsemen’s Partnership Horsemen's Partnership respectfully respectfully requests requests that that the the Court

Court remand remand this this case case to to the the that the trial court so that the trial trial court court can can perform perform the the ministerial ministerial duty of entering entering an order order dismissing dismissing the the case. Alternatively, the case. Alternatively, the Horsemen's

Horsemen’s Partnership

Partnership respectfully respectfully requests that the Court dismiss this interlocutory appeal for lack of jurisdiction.

Respectfully Respectfully submitted, submitted, GARDERE WYNNE GARDERE WYNNESEWELL

SEWELL LLP

LLP By: /s/ David By: /s/ G. Cabrales

David G. Cabrales David G.

David G. Cabrales

Cabrales Texas Bar Texas Bar No.

No. 00787179

00787179 [email protected] [email protected] Lucas Lucas C.

C. Wohlford

Wohlford Texas Bar Texas Bar No.

No. 24070871

24070871 [email protected] [email protected] Calli A.

Calli A. Turner

Turner Texas Bar Texas Bar No.

No. 24088558

24088558 [email protected] Gardere Wynne Sewell LLP

Sewell LLP 3000 Thanksgiving 3000 Thanksgiving Tower 1601 Elm Street Dallas, Texas 75201 Telephone:(214) Telephone: (214) 999-3000

999-3000 Facsimile: (214) Facsimile: (214) 999-4667 ATTORNEYS FOR PLAINTIFF/APPELLEE TEXAS HORSEMEN’S

HORSEMEN'S PARTNERSHIP, LLP PARTNERSHIP, LLP

CERTIFICATE OF

CERTIFICATE OF SERVICE SERVICE

By my By my signature below, below, II hereby hereby certify certify that that aa true and correct correct copy foregoing was of the above and foregoing served on all counsel was served counsel of record via the Court’s electronic Court's electronic filing filing system systemononJune June1,

1, 2016

2016 and and again againononJune

June2,

2, 2016.

2016. /s/ David /s/ DavidG.

G.Cabrales Cabrales

David G. Cabrales

CERTIFICATE CERTIFICATE OF

OF CONFERENCE

CONFERENCE Pursuant to to Texas

Texas Rule

Rule ofof Appellate

Appellate Procedure

Procedure10.1(a)(5),

10.1(a)(5), I certify certify that that onon June

June 1,1, 2016,

2016, IIattempted attempted to to confer confer with with counsel counsel forfor Defendants/Appellants regarding Defendants/Appellants regarding the merits of this Motion and whether Defendants/Appellants Defendants/Appellants oppose oppose the Motion. the Motion. Counsel for

Counsel for Defendants/Appellants informed me via voicemailvoicemail that they are opposed to Plaintiff/Appellee’s request to Plaintiff/Appellee's requestforfor remand remand but are unopposed but are unopposed to to Plaintiff/Appellee’s request to Plaintiff/Appellee's request to dismiss this appeal.

/s/ Lucas /s/ Lucas C. Wohlford Lucas C. Wohlford

EXHIBIT A

6/1/2016 4:11:22 PM

Velva L. Price District Clerk Travis County

NO. D-1-GN-16-000078 D-1-GN-16-000078

Bad Henson TEXAS HORSEMEN'S PARTNERSHIP, LLP§ IN THE DISTRICT COURT OF

Plaintiff,

vs. TRAVIS COUNTY, TEXAS GLENN HEGAR, in his official capacity as § Texas Comptroller of Public Accounts; STATE§ OF TEXAS 250TH JUDICIAL DISTRICT

Defendants. §

NOTICE OF NONSUIT WITHOUT PREJUDICE

COMES NOW the Texas Horsemen's Partnership, LLP, plaintiff in the above styled and numbered cause, and respectfully files this Notice of Nonsuit Without Prejudice. Pursuant to Texas Rule of Civil Procedure 162, Plaintiff hereby gives notice that it is taking a nonsuit of its entire case against Defendants Glenn Hegar, in his official capacity as Texas Comptroller of Public Accounts, and the State of Texas. This nonsuit is without prejudice to refiling, and is effective immediately on the filing of this notice on this date. DATED: May 31, 2016

Respectfully submitted, GARDERE WYNNE SEWELL LLP By: /s/ David G. Cabrales

David G. Cabrales Texas Bar No. 00787179 [email protected] Lucas C. Wohlford

NOTICE OF NONSUIT WITHOUT PREJUDICE Page 1

Texas Bar No. 24070871 lwohlfordagardere.corn Calli A. Turner Texas Bar. No. 24088558 cturnerftardere.com Gardere Wynne Sewell LLP 3000 Thanksgiving Tower 1601 Elm Street Dallas, Texas 75201 Telephone: (214) 999-3000 Facsimile: (214) 999-4667

ATTORNEYS FOR PLAINTIFF THE TEXAS HORSEMEN'S PARTNERSHIP, LLP

CERTIFICATE OF SERVICE

By my signature below, I hereby certify that a true and correct copy of the foregoing was served to all counsel of record in accordance with the Texas Rules of Civil Procedure on this the 31st day of May, 2016.

/s/ David G. Cabrales David G. Cabrales

NOTICE OF NONSUIT WITHOUT PREJUDICE Page 2 Gardere01 - 8745149v,1