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AG Response To Plaintiff Continuance Request

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ATTORNEY GENERAL OF TEXAS GREG ABBOTT

October 13, 2009

Daniel Harbaugh 8218 Braniff Street Houston.. Texas 77061

Via Regular and CMRRR #7008 0500 0001 5064 2903

Re: Cause No. 070432; Daniel Harbaugh v. Texas Commission on Environmental Quality, et
al.; in the Small Claims Court of Travis County, Precinct 5

Dear Mr. Harbaugh: Enclosed please fine a copy of Defendants' Response to Plaintiff's Motion for Continuance in the above-referenced cause which was filed with the court today.

; Mark Steinbach Assistant Attorney General Environmental Protection and Administrative Law Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Tel: (512) 463-2012 Fax: (512) 320-0911
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POST OFFICE Box 12548, AUSTIN, TEXAS 78711-2548 TEL: (512)463-2100 WWW.OAG.STATE.TX.US An Equal Employment
Opport/llIiry Employer. Printed on Recycled Paper

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Cause No. 070432 DANIEL W. HARBAUGH, Plaintiff, v. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY MARK VICKERY / EXECUTIVE DIRECTOR, TEXAS ATTORNEY GENERAL GREG ABBOTT, Defendants. § § § § § § §
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IN THE SMALL CLAIMS COURT

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TRAVIS COUNTY, TEXAS

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PRECINCT 5

DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR CONTINUANCE .
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TO THE HONORABLE JUSTICE OF THE PEACE: The Texas Commission on Environmental Quality (IfTCEQIf), Mark Vickery in his official capacity as Executive Director of the TCEQ, and the Attorney General of Texas, Defendants in this case, respectfully request the Court to deny Plaintiff's Motion for Continuance because the Plaintiff has failed to show good cause for a continuance. I. Background. Plaintiff, Daniel Harbaugh, filed this case in a small claims court of Harris County seeking recovery of $600.00 from the TCEQ plus his attorney's fees and costs. The Plaintiff's suit is based on being denied a voucher under the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (also known as
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AirCheck Texas).

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The Defendants included with their Original Answer a Plea to the Jurisdiction and Special Exceptions which the Court has set for hearing on November 12, 2009. Subsequently, Plaintiff has filed a Motion for Continuance. The motion is dated October 21,2009. However, it was never served on Defendants, and Defendants did not discover that such a motion was pending until the court clerk provided this information on October 26, 2009.

II. Arguments and Authorities.

Plaintiff seeks a continuance on the Defendants Plea to the Jurisdiction and Special Exceptions, not on the merits of this case. Accordingly, the Court should deny this continuance for three reasons. First, the continuance is not necessary to develop facts or resolve any issues related to the Defendants' Plea to the Jurisdiction or Special Exceptions, but is sought only for delay. Second, contrary to Plaintiff's assertion, he was served with Defendants' Plea to the Jurisdiction and Special Exceptions with Defendants' Original Answer. Third, if the continuance is based on difficulties or financial hardship arranging for travel to Austin, the Defendants will not object to Plaintiff appearing by telephone. A. A continuance is not necessary to resolve any issues related to Defendants' Plea to the Jurisdiction or Special Exceptions. Under Chapter 28 of the Government Code, the judge in a small claims court may grant a postponement or continuance only for good cause shown. Tex. Gov't Code § 28.032. In this case, Plaintiff seeks a continuance not on the merits, but on the matter of jurisdiction and the Defendants' Special Exceptions.

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Plaintiff has listed several reasons why he believes he is entitled to a continuance, but none of these show" good cause" because none of them show what facts need to be discovered or issues resolved before the Court may fairly decide these issues. Plaintiff cannot make such a showing because there are no facts or issues to resolve before the hearing. Both Defendants' Special Exceptions and Plea to the Jurisdiction are based on undisputed facts contained in the pleadings alone. If the facts relevant to jurisdiction are undisputed, the court should decide the plea to the jurisdiction as a matter of law based solefy on those undisputed facts. Texas Dep't of
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Parks & Wildlife v. Miranda, 133 S.W.3d 217,228 (Tex. 2004). A trial court must grant a plea

to the jurisdiction when the pleadings fail to state a cause of action upon which the trial court has jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Additionally, the determination o~ whether subject matter jurisdiction exists must be made as soon as practicable. Miranda, 133 S.W.3d at 227. The Defendants have asserted sovereign immunity as a bar to Plaintiff's claim. This plea to the jurisdiction is based solely on the sufficiency of Plaintiff's pleadings to demonstrate a waiver of sovereign immunity. The jurisdictional facts are not in dispute. Rather, the only issue is whether this Court can hear a cause of action for damages against the Defendants without a waiver of their immunity. Accordingly, there are no facts to develop before this hearing, and the Plaintiff kas not shown good cause for a continuance. r Likewise, the function of special exceptions is to inform the opposing party of defects in the pleading and give the party the opportunity to cure it, if possible, by amendment. Cameron v. Univ. of Houston, 598 S.W.2d 344, 345 (Tex. Civ. App.-Houston [14th Dist.] 1980, writ ref. n.r.e.). There are no facts the Plaintiff needs to develop before a hearing on the sufficiency of his pleadings can take place.

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Plaintiff appears to raise the need for legal assistance in another lawsuit as a basis for his continuance. However, he has not shown any scheduling conflicts or other legitimate reasons why he cannot appear at'the hearing on November 12. The fact that Plaintiff may be involved in another suit is not in itself good cause for a continuance. His other reasons appear to be objections based on the Attorney General as a party to this suit. Such objections have no bearing on his Motion for Continuance. Therefore, with respect to Defendants' Plea to the Jurisdiction and Special Exceptions, Plaintiff has not shown good cause for a continuance. Rather, the purpose of Plaintiff's motion is for delay only and should be denied. B. A continuance is not necessary because Plaintiff has adequate notice of the hearing. . Although not part of his Motion for Continuance, Plaintiff claimed that he was never served with the Defendants Special Exceptions or Plea to the Jurisdiction. This is incorrect because Defendants' Special Exceptions and Plea to the Jurisdiction both appear in their Original Answer on pages 6 and 5 respectively. Moreover, Plaintiff has also been served with Defendants' Brief in Support of their Plea to the Jurisdiction. According to the

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certified mail return receipt, Plaintiff received the Defendants' brief on October 16, 2009, nearly a month before the hearing on this matter is set. Therefore, Plaintiff has adequate notice of this hearing, and a continuance is unnecessary. c. A continuance is not necessary because the Defendants will not object to Plaintiff appearing at the hearing by telephone. Plaintiff has raised his difficulty traveling to Austin for this hearing as a basis for this continuance he seeks. In order to avoid the financial hardship and difficulty for the Plaintiff to travel, the State will not object to ,the Plaintiff appearing at this hearing by telephone. Thus, the difficulty of travel does not provide a basis for a continuance, and the Court should go forward with this hearing. III. Conclusion' Plaintiff has failed to identify any facts needed or other good cause for a continuance on Defendants' Plea to the Jurisdiction and Special Exceptions. Moreover, because these are dilatory pleas which do not involve the merits of the case, but rather must be decided on the pleadings alone, there is no good cause for a continuance. Furthermore, the Defendants ate entitled to a hearing on their Plea to the Jurisdiction as soon as practicable. Miranda, 133 S.W.3d at 227. Any difficulty the Plaintiff may have in arranging to travel to Austin for the hearing can be remedied by an appearance by telephone. Therefore, the Court should deny Plaintiff's Motion for Continuance.

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PRAYER
Defendants respectfully request that the Court deny Plaintiff's Motion for Continuance and proceed with the hearing on Defendants' Plea to the Jurisdiction and Special Exceptions on November 12, 2009. Defendants further request that the Court set Plaintiff's Motion for Continuance for hearing.
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Respectfully submitted, GREG ABBOTT Attorney General of Texas C. ANDREW WEBER First Assistant Attorney General

DAVID S. MORALES Deputy Attorney General for Civil Litigation
BARBARA B. DEANE Chief, Environmental Protection and Administrative Law Division DA VID PREISTER Chief, Environmental Protection Section

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MARK A. STEINBACH State Bar No. 24056653 Assistant Attorney General

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Office of the Attorney General P.O. Box 12548 Austin, Texas 78711-2548
Defendants' Response to Plaintiff Motion for Continuance

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