September 27, Re: Cause No , In re Occidental Chemical Corp., et al, original proceeding

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1 THE LAW OFFICE OF AUDREY MULLERT VICKNAIR FROST BANK PLAZA 802 NORTH CARANCAHUA, SUITE 2100 CORPUS CHRISTI, TEXAS FILED /27/2018 4:07 PM tex SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK TELEPHONE: (361) TELECOPIER: (361) BOARD CERTIFIED CIVIL APPELLATE LAW TEXAS BOARD OF LEGAL SPECIALIZATION Hon. Blake Hawthorne Clerk, Supreme Court of Texas Supreme Court Building 201 W. 14 th Street, Room 104 Austin, Texas September 27, 2018 Re: Cause No , In re Occidental Chemical Corp., et al, original proceeding Dear Mr. Hawthorne: Respondents Ramiro Canales and Kevin Kieschnick, and Real Party Nueces County, submit this Response to Relators post-submission letter filed September 24, If you would please provide the same to the Chief Justice and Justices, your courtesies would be greatly appreciated. Relators do not provide this Court with any new analysis in their postsubmission brief. While the attempt is made to answer questions Relators could not answer satisfactorily at oral argument, Relators continue to fail to answer the real questions posed. This Court has no jurisdiction to determine the boundary between these two counties, under this new statute: 1

2 (1) The right to the duty required to be performed by mandamus shall not be dependent upon the determination of any doubtful question of fact: 1 The very text of Section requires this Court to make several fact findings, and the multiple parties in this original proceeding raised additional fact issues as well (see Nueces Parties bench book Tab 3). (2) The writ of quo warranto or mandamus must be a proper or necessary process for enforcement of the right asserted: 2 This Court is not tasked with determining the constitutionality of a statute as in Allstate and Nestle 3. It is not asked to compel the inclusion of a candidate s name on the ballot (Love 4 ), the sending of an election delegates list to the Secretary of State (Lane 5 ), or the issuance of a medical license to a doctor (Betts 6 ) (all of these cases were cited in Allcat 7 ). Here, the Court is being asked to establish the correct geographic boundary between two counties. This case bears no resemblance to the cases that have come before it. And, notably, in only one of the above did the Court grant mandamus relief Love, because the hopeful gubernatorial candidate had no other possible way to get himself on the ballot in time for the election. 8 Relators have other remedies here. Mandamus is not a proper process. (3) There must be some strong and special reason for the exercise of this extraordinary original jurisdiction, because this Court is designed primarily for correction by appellate review of errors made by lower courts when determining 1 In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 461 n. 6 (Tex. 2011) 2 Id. 3 In re Nestle USA, Inc., 387 S.W.3d 610 (Tex. 2012) 4 Love v. Wilcox, 28 S.W.2d 515 (Tex. 1930) 5 Lane v. Ross, 249 S.W.2d 591 (Tex. 1952) 6 Betts v. Johnson, 73 S.W. 4 (Tex. 1903) 7 Id. at 461, and 461, n This Court also found it had no mandamus jurisdiction in Teat v. McGaughey, 22 S.W.302 (Tex. 1893) (GLO could not be compelled to vacate patent), also cited in Allcat. Id. at 461, n. 6. 2

3 questions of law: 9 The Counties are filing dispositive motions in the trial court litigation in one week; there is no reason for this Court to step in. Nor does the Court have the authority to prescribe what the decision of the subordinate court shall be, nor will the supervisory court interfere in any way to control the judgment or discretion of the subordinate court in disposing of the controversy. Pope v. Ferguson, 445 S.W.2d 950, 953 (Tex. 1969) (4) The proceeding must involve questions which are of general public interest and call for a speedy determination: 10 This is pointed legislation aimed at these two counties and their ongoing litigation. In Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d 126 (Tex. 2010) cited by Relators in their Reply Brief (p. 24), the legislature crafted a statute that limited certain corporations successor liability for asbestos claims which pointedly benefited defendant Crown Cork to vitiate the plaintiffs claims for asbestos exposure. This Court held that targeted statute was an unconstitutional retroactive law. Id. at , , 149, 150. So too here: the legislature crafted Section specifically to target these two counties, to benefit these industries. The legislation retroactively quashes the litigation pending in Refugio and the mandate of the Thirteenth Court, and appears to erase entire chapters of the Tax Code. Exhaustion of remedies is required to challenge tax situs, and while Relators have not exhausted those remedies for all years, they appear to contend they no longer have to under Section This is a prohibited retroactive law, pointed legislation that puts Relators in a more favorable position. This Court cannot exercise jurisdiction here. In sum, if this Court determines it has authority to establish a geographic boundary between two counties in an original lawsuit, this will be, in no uncertain terms, A whole new world. A new fantastic point of view. In re McAllen Med. 9 Allcat, 356 S.W.3d at 461, n Id. 3

4 Ctr., 275 S.W.3d 458, 470 (Tex. 2008) (Wainwright, J., dissenting) (quoting from ALLADIN, Disney 1992) (dissenting from the Court s exercise of mandamus jurisdiction in case involving health care liability expert reports). In addition, while a case may be hard, it should [not] be allowed to make bad law. Perry v. Del Rio, 67 S.W.3d 85, 100 (Tex. 2001) (Phillips, C.J., dissenting) (quoting Fed. Communications Comm'n v. WOKO, 329 U.S. 223, 229, 91 L. Ed. 204, 67 S. Ct. 213 (1946)) (in year 2000 congressional redistricting case, holding that the direct appeal statute invoked by Perry to obtain Supreme Court review did not apply). This too may be a hard case, but it cannot be allowed to make bad law. The petition for writ of mandamus must in all things be denied. This original proceeding should be dismissed. If the Court does determine it has jurisdiction and this statute is not unconstitutional, then the Court must abide the boundary statutes, the record, and the guiding law. A private property owner cannot unilaterally change this statutorily-created county boundary. Pandora s Box will indeed be opened if this Court adopts San Patricio s position: every time a new pier is built, San Patricio will contend the boundary has changed once again. Corpus Christi Bay is Nueces County. These piers, built into the bay, are in Nueces County. Respectfully submitted, 4

5 /s/ Audrey Mullert Vicknair Audrey Mullert Vicknair LAW OFFICE OF AUDREY MULLERT VICKNAIR State Bar No N. Carancahua Street, Suite 2100 (361) ; (361) fax TOM C. WHEAT State Bar No N. Shoreline Blvd., Suite 201 (361) ; (361) fax Attorneys for Respondent Ramiro Canales, Chief Appraiser, Nueces County, Texas /s/ Douglas E. Chaves Douglas E. Chaves CHAVES, OBREGON & PERALES, LLP State Bar No N. Carancahua Street, Suite 2100 (361) ; (361) fax LAURA GARZA JIMENEZ NUECES COUNTY ATTORNEY State Bar No Leopard Street, Room 207 (361) ; (361) fax Attorneys for Respondent Kevin Kieschnick, Nueces County Tax Assessor- Collector, and Real Party in Interest Nueces County, Texas CERTIFICATE OF SERVICE As required by Texas Rule of Appellate Procedure, I certify that I have served this document on all other parties to this proceeding, through their respective counsel of record, on September 27, 2018 as follows: ATTORNEYS FOR RELATORS Dale Wainwright wainwrightd@gtlaw.com Charles R. Skip Watson watsons@gtlaw.com Justin Bernstein bernsteinju@gtlaw.com 5

6 Edward Kliewer III William T. Sullivan Rosemarie Kanusky ATTORNEYS FOR SAN PATRICIO COUNTY APPRAISAL DISTRICT Peter William Low Kirk Swinney ATTORNEYS FOR DALIA SANCHEZ, TAX ASSESSOR-COLLECTOR AND SAN PATRICIO COUNTY, TEXAS John J. Hightower Tamara Cochran-May SAN PATRICIO COUNTY ATTORNEY HON. KEMPER STEPHEN WILLIAMS 135 th Judicial District Court, Refugio County, Texas ATTORNEY FOR HON. GEORGE P. BUSH, LAND COMMISSIONER Kristofer S. Monson /s/ Audrey Mullert Vicknair Audrey Mullert Vicknair 6