Texas Education Agency and Mike Morath, Commissioner of Education, in His Official Capacity v. American YouthWorks, Inc., D/B/A American YouthWorks Charter School Honors Academy, Inc., D/B/A Honors Academy And Azleway, Inc., D/B/A Azleway Charter School
03-14-00283-CV
| Tex. App. | Oct 19, 2015Background
- Appellee American YouthWorks (AYW) filed this opposed motion asking the Third Court of Appeals to strike Appellants’ post-submission letter brief (or, alternatively, to permit AYW to file a response).
- Appellants’ post-submission brief raises Robinson-based arguments and cites Union Carbide, neither of which Appellants developed in their opening brief or earlier pleadings. AYW contends these arguments are new and waived.
- AYW argues the post-submission brief functions as a supplemental/ amended brief under Tex. R. App. P. 38.7 and that Appellants did not seek leave prior to filing it.
- AYW says Appellants had ample opportunity (pre-submission and at oral argument) to present Robinson-based analysis and offers no justification for waiting to raise it post-submission.
- AYW contends allowing the brief would be prejudicial because AYW had no chance to respond in writing to Appellants’ Robinson/Union Carbide arguments.
- AYW alternatively seeks leave to file a response if the court accepts Appellants’ post-submission filing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Appellants’ post-submission letter brief should be stricken as untimely/new argument | Appellee (AYW): the letter raises new Robinson-based legal theories and new case law not in opening brief, so it is waived and must be struck | Appellants: (not in this filing) impliedly seek consideration of Robinson/Union Carbide to support their retroactivity position | Not decided in this filing (motion requests strike) |
| Whether the post-submission filing is a supplemental brief under Tex. R. App. P. 38.7 requiring leave | AYW: it is a supplement because it adds new legal argument and cases; Appellants did not seek leave earlier | Appellants: (not shown here) would argue the filing merely clarifies or responds to court questions | Not decided in this filing (motion asks court to deny leave) |
| Whether justice requires accepting the supplement despite procedural default | AYW: justice does not require it—Appellants had months to brief Robinson and cannot justify the late addition; allowing it prejudices AYW | Appellants: (not stated) would argue fairness or response to oral argument warranted the post-submission brief | Not decided in this filing (AYW urges denial under Rule 38.7) |
| Whether AYW should be granted leave to respond if court accepts the post-submission brief | AYW: if court permits Appellants’ filing, AYW must be allowed to file a response to avoid prejudice | Appellants: (not stated) likely oppose extra briefing | Not decided in this filing (AYW requests leave to respond) |
Key Cases Cited
- Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126 (Tex. 2010) (sets the tripartite test for unconstitutional retroactivity and rejects vested-rights and police-power as standalone shields)
- Union Carbide Corp. v. Synatzske, 438 S.W.3d 39 (Tex. 2014) (addressed retroactivity issues decided after original briefs were filed)
- Romero v. State, 927 S.W.2d 632 (Tex. 1996) (post-submission new issues are waived)
- Tex. Med. Ass'n v. Tex. Workers' Comp. Comm'n, 137 S.W.3d 342 (Tex. App.—Austin 2004, no pet.) (arguments raised post-submission or at oral argument but not in pre-submission briefs are waived)
- City of Houston v. Precast Structures, Inc., 60 S.W.3d 331 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (raising a new argument for the first time in a post-submission brief is waived)