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Dozens of lawyers are expected to gather at Austin’s 3rd Court of Appeals on March 26 for a first-of-its-kind hearing that could be one of the last of its kind as well. Presiding judges for four of the nine judicial administrative regions in Texas will sit for a consolidated hearing on motions filed by major oil and gas producers who want a single judge to coordinate pretrial matters statewide in 36 property tax cases that taxing entities filed against them. The taxing entities allege in petitions filed in the various suits that from the late-1980s through the mid- to late-1990s, the producers fraudulently or negligently misrepresented the price of oil and gas used to compute the value of the interests on which they paid property taxes. The producers argue in motions for coordinated pretrial proceedings in Brooks County, et al. v. El Paso Production Oil & Gas Co., et al. and other cases that a single judge handling pre-trial matters will provide for the “uniform, fair and efficient resolution of the cases. “ Kerry Blair, attorney for Shell Oil Co. and its affiliates, says he believes the March 26 hearing is “unprecedented” under Rule of Judicial Administration 11, which allows litigants to request one judge to oversee pretrial matters within a judicial administrative region. “I believe these are the first motions seeking statewide coordination under Rule 11 that have been filed since the passage of the new Rule 13,” says Blair, managing partner of Baker & McKenzie in Houston. “Given the particular filing and effective dates, they most likely will be the last such motions filed under Rule 11. “ H.B. 4, the major tort reform law passed by the Texas Legislature last year, required the state Supreme Court to enact Rule 13, which allows litigants to request that a single judge hear all pre-trial matters in state-court cases having common issues. Rule 13 applies to cases filed after Sept. 1, 2003. Under the new rule, when a motion for consolidation is filed, a five-member multidistrict litigation (MDL) panel appointed by the high court decides whether to appoint one pre-trial judge. In effect since 1997, Rule 11 still applies to cases filed before Sept. 1, 2003. Blair says the vast majority of the suits against producers were filed right before that deadline. But Blair says Rule 11.7(a), an amendment adopted by the Supreme Court, provides that Rule 11 should be “construed and applied as to facilitate the implementation of Rule 13 to the greatest extent possible.” Judges who will consider the producers’ motions are David Peeples of the 4th Administrative Judicial Region, chairman of the new MDL panel; David Hester of the 5th region; Stephen Ables of the 6th region; and Dean Rucker of the 7th region. Although the judges will sit together to hear arguments, each judge will decide at the conclusion of the hearing whether it is appropriate to appoint a pre-trial judge for his region, Rucker says. Rucker says Rule 11.3(d) allows a presiding judge to ask the state Supreme Court chief justice to assign an active district judge from outside the region to hear pre-trial matters in cases within the region. That provision opens the possibility for statewide consolidation. Each presiding judge could select the same pre-trial judge and request that the chief justice assign that judge to a region, Rucker says. Eliminating “Chaos “ If a number of different judges handle pretrial motions it will create “all kinds of chaos” with people’s schedules and can result in competing discovery rulings, Blair says. Bill Ikard, a partner in Austin’s Popp & Ikard and attorney for El Paso Corp. and other producers, says a judge in Midland might rule that a discovery matter is privileged, and a judge in Laredo could decide it’s not privileged. The plaintiffs in Midland could use the ruling in Laredo to get the discovery information, he says. Harry Munsinger, of counsel at San Antonio’s Branton & Hall and an attorney for Kermit Independent School District and other taxing entities, contends that the producers are seeking consolidation to delay the cases. “The defendants want to take these cases to trial in about 2025, if at all,” Munsinger alleges. Among the issues that the producers want decided before trial is whether appraisal revenue boards have exclusive jurisdiction over property tax disputes. “We claim there has never been a common-law right to allege fraud in a property tax context,” Ikard says. Houston’s 14th Court of Appeals decided in 1992′s Beck & Masten Pontiac-GMC Inc. v. Harris County Appraisal District, et al. � a case in which a car dealership’s agent allegedly altered federal income tax returns to lower the dealership’s property taxes � that the original appraisal was void and that, under Tax Code �25.21, the district could back-assess for property previously assessed if the property had been undervalued. Munsinger says producers lost on the plea to the jurisdiction in 2002 when El Paso’s 8th Court of Appeals denied their petition for a writ of mandamus in In Re: Texaco Exploration and Production, et al. Blair says the decision has no precedential value because it came in a mandamus proceeding. Mikal Watts, who represents nine South Texas counties that have sued the oil and gas producers, alleges the producers argue that the cases must go before appraisal review boards but then they want one suit. A taxpayer with a complaint against a taxing entity can sue in district court, says Watts, owner of the Watts Law Firm in Corpus Christi. “Our point is, we’re going to end up in the same place anyway. “

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