Susan Combs, in her official capacity as Texas Comptroller, and Greg Abbott, in his official capacity as Texas Attorney General v. Texas Small Tobacco Coalition and Global Tobacco, Inc.Appeal from 345th District Court of Travis County (dissenting memorandum opinion )
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-13-00753-CV Susan Combs, in her official capacity as Texas Comptroller, and Greg Abbott, in his official capacity as Texas Attorney General, Appellants v. Texas Small Tobacco Coalition and Global Tobacco, Inc., Appellees FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT NO. D-1-GN-13-002414, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING DISSENTING OPINION The majority holds that the trial court did not have jurisdiction to consider appellees request for a hardship exemption because appellees did not timely file their request during the trial court s plenary jurisdiction. Although I do not quarrel with this conclusion relative to appellees request for relief under section 112.108 of the Tax Code, I believe appellees also sought alternative relief from the trial court under Rule 24 of the Texas Rules of Appellate Procedure, which conferred jurisdiction on the trial court. Therefore, I respectfully dissent. A trial court may grant relief under Rule 24, which relates to the suspension of the effect of a judgment pending appeal, even after its plenary power expires. Tex. R. App. P. 24.3(a). Once a party invokes Rule 24, as appellees did, the trial court has jurisdiction to resolve the requested relief, regardless of the merits of the request. See id. (giving trial court continuing jurisdiction to order or modify security pending appeal). That is true even if the State is the party that has superseded the judgment. See In re Dallas Area Rapid Transit, 967 S.W.2d 358, 359-60 (Tex. 1998); In re State Bd. of Educator Certification, 411 S.W.3d 576, 576-77 (Tex. App. Austin 2013, orig. proceeding). I would hold that the trial court had jurisdiction to consider the merits of appellees requested relief under Rule 24, and therefore I respectfully dissent. __________________________________________ Scott K. Field, Justice Before Justices Puryear, Goodwin, and Field Filed: April 25, 2014 2
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