Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 5/15/2015 8:24:02 PM JEFFREY D. KYLE Clerk NO. 03-15-00294 THIRD COURT OF APPEALS 5/15/2015 8:24:02 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00294-CV *1 ACCEPTED ^[5311959] CLERK IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS MANOR INDEPENDENT SCHOOL DISTRICT Appellant

v.

DEYDRA STEANS

Appellee From the 200 th Judicial District Court of Travis County, Texas

__________ APPELLANT’S RESPONSE TO APPELLEE’S EMERGENCY MOTION

FOR RECONSIDERATION OF TEMPORARY ORDER ON APPELLANT’S MOTION FOR EMERGENCY STAY ______

Appellant Manor Independent School District submits this response to Appellee’s Emergency Motion for Reconsideration of Temporary Order on

Appellant’s Motion for Emergency Stay.

Appellee filed its motion at 4:14 p.m. on Friday afternoon, seeking to force a trial on the following Monday.

A. Manor ISD is not asserting a right under CPRC § 51.014. The automatic stay under section 51.014 of the Civil Practice and Remedies Code is not the sole authority for the logical proposition of staying a trial during

the pendency of a lawsuit challenging the trial court’s jurisdiction. Appellant first

argues that this case is “well beyond the 180 days the law contains for a litigant to

maintain an automatic stay” and that, “[t]he Texas Legislature has made it clear

that only those appeals from interlocutory decisions that are made within 180 days

require an automatic stay of a proceeding.” Appellee’s Mtn., 2-3.

Appellee’s argument misses the point. Appellant Manor ISD is not asserting a right to an automatic stay under section 51.014. Although there are good reasons

for the delay of the hearing of Manor ISD’s plea to the jurisdiction, Manor ISD

recognizes that the statute sets forth an objective timeline. Instead, Manor ISD’s

request for stay is based on Tex. R. App. P. 29.3 and 29.5. A stay under these

provisions does not render the automatic stay a nullity—this is simply a separate

right to relief under the rules of procedure.

B. Manor ISD’s simply seeks to protect its right to relief from this Court.

Under Rule 29.3, the Court “may make any temporary orders necessary to preserve the parties' rights until disposition of the appeal.” Tex. R. App. P. 29.3.

Under Rule 29.5, the trial court is prohibited from impairing the effectiveness of

any relief sought or that may be granted on appeal:

But the court must not make an order that:

(a) is inconsistent with any appellate court temporary order; or (b) interferes with or impairs the jurisdiction of the appellate court or effectiveness of any relief sought or that may be granted on appeal. *3 Tex. R. App. P. 29.5 (emphasis added). To be clear, the relief that Manor ISD

seeks from this Court is the benefit of enjoying its immunity from suit. In her

motion, Appellee fails to recognize the “impairs effectiveness” prong of Rule 29.5.

The rules authorize this Court to stay proceedings at the trial court level until it can determine whether a party “should be immune from the expense and

inconvenience of ... a trial” because the trial court does not have jurisdiction of his

person. Lacefield v. Elec. Fin. Group, Inc. , 21 S.W.3d 799, 800 (Tex. App.—Waco

2000, no pet.)(involving the denial of a special appearance).

“[T]he purpose for the immunity and the interlocutory appeal intended to protect it would be thwarted by subjecting the official to a trial in the court below

before the appellate court has determined whether he should be immune from the

expense and inconvenience of such a trial.” Teran v. Valdez , 929 S.W.2d 37, 38

(Tex. App.—Corpus Christi 1996, no writ)(staying trial court proceedings pending

resolution of interlocutory appeal on question of official immunity).

Lacefield and Teran illustrate this simple bit of logic: proceeding to a trial on the merits during the pendency of an appeal challenging the trial court’s

subject-matter jurisdiction effectively destroys a governmental entity’s ability to

ever benefit from its immunity. A government entity’s subsequent victory at the

appellate level is a hollow one if it comes after a trial on the merits—the

ballgame’s long been over by that point. Win or lose on the merits, the

government has already lost its immunity from suit .

Manor ISD moved this Court for a stay because (1) it was unable to obtain a hearing at the trial court on its motion for stay or continuance prior to the date set

for trial, and (2) proceeding to trial in this case will nullify this Court’s ability to

grant effective relief on Manor ISD’s pending appeal regarding the trial court’s

jurisdiction over this case.

C. There are good reasons for the delay in challenging jurisdiction. As a threshold matter, Manor ISD will point out a deficiency in Appellee’s motion. Appellee asserts that most of Manor ISD’s jurisdictional arguments were

“based on facts that were known early on by the district.” But, Appellee failed to

cite to any evidence to support this factual assertion. See Tex. R. App. P. 10.2

(facts not in the record require proof). The affidavit of Appellee’s counsel omits

this from its recitations.

Appellee relies heavily on pointing out the chronology of this case. But, that argument is a red herring. To begin, Manor ISD’s jurisdictional pleas are not

based solely on Appellee’s pleadings, but are based on Appellee’s failure to meet

her burden to produce evidence establishing the necessary jurisdictional facts. See

Texas Dept. of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 228 (Tex. 2004).

Necessarily then, it was necessary to engage in the discovery process. Manor ISD

completed its discovery by the deadline (December 2013). Appellee then

requested to conduct depositions beyond the discovery period. Subsequently,

beginning in January 2014, the parties engaged in protracted settlement

negotiations, with an agreement to put the discovery on hold, but to be taken

within 30 days of reaching impasse. That impasse occurred in June 2014. Manor

ISD then requested that the pending depositions take place within 30 days of that

impasse. After various requests for extension by Appellee, the depositions finally

occurred in November 2014, with corrections submitted by January 2015. Manor

ISD filed its motion by March 4, 2015.

The fact that Appellee failed to complete her discovery by the deadline and kept stringing the depositions along meant that Manor ISD would have been

prejudicing itself by filing an evidentiary plea to the jurisdiction at an earlier time.

D. Appellee is not in danger of losing any of her rights.

If the Court lifts the stay, one party loses its rights (Manor ISD loses its immunity from suit by virtue of having to go through a trial). If the Court does not

lift the stay, no one loses any rights. Appellee, if she prevails in this interlocutory

appeal, will still have the right to continue with her lawsuit against Manor ISD and

to seek whatever damages she may. Moreover, it would be a waste of judicial

resources for a court to go through a full trial on the merits when it may not have

jurisdiction in the first place. Appellee claims that pleas to the jurisdiction are

regularly decided on cases that have gone to trial, but she does not claim that they

regularly proceed while an interlocutory appeal on immunity is pending. Indeed,

Appellee does not cite to any case in which a court has been asked to grant a stay,

but denied that request and instead allowed a trial to proceed when the

governmental entity’s immunity is being raised in an interlocutory appeal.

E. Summary

Allowing this case to go to trial on Monday—before resolution of Manor ISD’s jurisdictional challenge—would have the irreversible effect of stripping

Manor ISD of its immunity. Even if this Court ultimately dismisses this case,

Manor ISD will have had to participate in a trial in a court that had no jurisdiction.

This would nullify Manor ISD’s governmental immunity.

F. Prayer

Manor ISD respectfully requests that Appellee’s Emergency Motion for Reconsideration be denied.

Respectfully submitted, By:___________________________ Jennifer A. Powell Texas Bar No. 00783554 Abraham F. Barker Texas Bar No. 24073241 4201 W. Parmer Lane, Suite A100 Austin, Texas 78727 512/476-9944 512/472-2599 fax Attorneys for Manor Independent School District CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document has been sent via court-generated electronic means and/or

email on May 15, 2015, to the following:

Gary L. Bledsoe

Alondra Johnson

Potter Bledsoe, LLP

316 West 12 th Street, Suite 307

Austin, Texas 78701

Attorneys for Deydra Steans ______________________________ Jennifer A. Powell