In Re M. Brett Cooper, M.D. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 21, 2025
• Docket: 15-25-00094-CV
• Status: Published

Opinion

15-25-00094-CV ACCEPTED 15-25-00094-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 5/21/2025 11:02 PM NO. ___________________ CHRISTOPHER A. PRINE __________________________________________________________________ CLERK IN THE FIFTEENTH DISTRICT COURT OF APPEALS FILED IN 15th COURT OF APPEALS FOR THE STATE OF TEXAS AT AUSTIN, TEXAS AUSTIN, TEXAS __________________________________________________________________ 5/21/2025 11:02:30 PM In re M. Brett Cooper, M.D., CHRISTOPHER A. PRINE Clerk Relator __________________________________________________________________ On Petition for Writ of Mandamus From the 493rd District Court at Collin County, Texas Cause No. 493-08026-2024 The Honorable Judge Christine A. Nowak, Presiding __________________________________________________________________ PETITION FOR WRIT OF MANDAMUS __________________________________________________________________

Nicholas R. Lawson Simona Agnolucci (pending pro hac admission) Texas Bar No. 24083367 Barrington Dyer (pending pro hac admission) Avi Moshenberg Jennifer J. Hardy Texas Bar No. 24083532 Texas Bar No. 24096068 LAWSON & MOSHENBERG PLLC Anika Holland (pending pro hac admission) 801 Travis Street, Suite 2101 #838 Emily Abbey (pending pro hac admission) Houston, TX 77002 Isabella McKinley Corbo (pending pro hac Telephone: (832) 280-5670 admission) avi.moshenberg@lmbusinesslaw.com Zoe Packman (pending pro hac admission) Rodolfo Rivera Aquino (pending pro hac admission) Remy Carreiro (pending pro hac admission) Emma Rodriguez (pending pro hac admission) WILLKIE FARR & GALLAGHER LLP 333 Bush Street, 34th Floor San Francisco, CA 94104 Telephone: (415) 858-7470

ATTORNEYS FOR RELATOR

RELATOR REQUESTS EMERGENCY RELIEF RELATOR REQUESTS ORAL ARGUMENT IDENTITIES OF PARTIES AND COUNSEL

Relator Counsel for Relator M. Brett Cooper, M.D. Nicholas R. Lawson Avi Moshenberg LAWSON & MOSHENBERG PLLC 801 Travis Street, Suite 2101 #838 Houston, TX 77002

Jennifer Hardy WILLKIE FARR & GALLAGHER LLP 600 Travis St. Houston, TX 77002

Simona Agnolucci (Application for pro hac admission pending) Barrington Dyer (Application for pro hac admission pending) Anika Holland (Application for pro hac admission pending) Emily Abbey (Application for pro hac admission pending) Isabella McKinley Corbo (Application for pro hac admission pending) Zoe Packman (Application for pro hac admission pending) Rodolfo Rivera Aquino (Application for pro hac admission pending) Remy Carreiro (Application for pro hac admission pending) Emma Rodriguez (Application for pro hac admission pending)

WILLKIE FARR & GALLAGHER LLP 333 Bush Street, 34th Floor San Francisco, CA 94104

i Real Party in Interest Counsel for Real Party in Interest The State of Texas Ken Paxton Brent Webster Ralph Molina Austin Kinghorn Johnathan Stone Rob Farquharson David Shatto OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF TEXAS CONSUMER PROTECTION DIVISION P.O. Box 12547 (MC-010) Austin, TX 78711

University of Texas Southwestern Ken Paxton Medical Center Brent Webster Ralph Molina Austin Kinghorn Ernest C. Garcia Patrick Todd Martin Cohick OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF TEXAS ADMINISTRATIVE LAW DIVISION P.O. Box 12548, Capitol Station Austin, TX 78711

Children’s Health Cory M. Sutker Jackie S. Cooper COOPER & SCULLY, P.C. 900 Jackson Street, Suite 900 Dallas, TX 75202

ii Nonparty Patients 1–14 Jervonne D. Newsome Thanh D. Nguyen Jonathan Hung WINSTON & STRAWN LLP 2121 N. Pearl St., Suite 900 Dallas, TX 75201

William M. Logan Evan D. Lewis Olivia A. Wogon WINSTON & STRAWN LLP 800 Capitol St., Suite 2400 Houston, TX 77002

Respondent Hon. Christine A. Nowak Presiding Judge 493rd District Court Collin County, Texas Russel A. Steindam Courts Building 2100 Bloomdale Road McKinney, TX 75071

iii TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL ......................................................... i TABLE OF CONTENTS ......................................................................................... iv INDEX OF AUTHORITIES.................................................................................... vi STATEMENT OF THE CASE ..................................................................................x RECORD REFERENCES ....................................................................................... xi STATEMENT OF JURISDICTION........................................................................ xi ISSUES PRESENTED............................................................................................. xi INTRODUCTION AND OVERVIEW .....................................................................1 I. ....... Dr. Cooper Promptly And Repeatedly Asserted The Trial Court Lacks Jurisdiction. ......................................................................................................3 II. .................. Dr. Cooper Faces Burdensome Discovery Despite His Pending Jurisdictional Challenge. .................................................................................5 III. .... The Trial Court Refused To Set The Jurisdictional Plea For Hearing— But Set Hearings On Merits Issues. .................................................................6 STANDARD OF REVIEW .......................................................................................8 ARGUMENT .............................................................................................................9 I. ..... The Trial Court Clearly Abused Its Discretion By Refusing To Rule On Subject-Matter Jurisdiction Before Proceeding To The Merits ......................9 A. ........It Is A Fundamental Precept That A Court Must Have Subject- Matter Jurisdiction...............................................................................10 B. ...... The Trial Court’s Jurisdiction Has Been Rightfully Challenged. .............................................................................................................11 C. .. The Trial Court Has Abused Its Discretion By Proceeding To The Merits Without Addressing The Jurisdictional Challenge. .................13 II. ... There Is No Adequate Appellate Remedy Because Dr. Cooper Has Been Denied His Statutory Right To Interlocutory Appeal. ..................................18

iv A. .... The Trial Court’s Delay Deprives Dr. Cooper Of His Substantial Rights...................................................................................................18 B. ..... The Trial Court’s Delay Frustrates The Texas Tort Claims Act’s Mandate of Expedited Dismissal.........................................................20 CONCLUSION ........................................................................................................22 PRAYER ..................................................................................................................22 CERTIFICATE OF FACTUAL SUPPORT ............................................................25 CERTIFICATE OF COMPLIANCE .......................................................................25 CERTIFICATION OF SERVICE............................................................................25 APPENDIX INDEX ................................................................................................26

v INDEX OF AUTHORITIES

Cases Page(s)

Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755 (Tex. 2018) ..............................................................................12

In re Bexar Medina Atascosa Ctys. Water Control & Improvement Dist. No. One, No. 04-24-00538-CV, 2025 WL 466069 (Tex. App. Feb. 12, 2025).....18, 20, 22

In re Brown, 2020 WL 4047965 (Tex. App.—Dallas July 20, 2020, no pet.) ........................17

City of Anson v. Harper, 216 S.W.3d 384 (Tex. App.—Eastland 2006, no pet.) .......................................14

City of Austin v. Quinlan, 669 S.W.3d 813 (Tex. 2023) ..............................................................................10

In re City of Dallas, 501 S.W.3d 71 (Tex. 2016).................................................................................10

In re City of Edinburg, No. 13-23-00131-CV, 2023 WL 3185808 (Tex. App. May 1, 2023) ................ 13

City of Galveston v. Gray, 93 S.W.3d 587 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding) ..................................................................................................passim

City Of Kemah v. Vela, 149 S.W.3d 199 (Tex. App.—Houston [14th Dist.] 2004, pet. denied).................................................................................................................16

In re Congregation B’Nai Zion of El Paso, 657 S.W.3d 578 (Tex. App.—El Paso 2022, no pet.) ........................................17

In re Dallas Cnty., 2022 WL 1467987 (Tex. App.—Dallas May 10, 2022, no pet.)........................11

Dallas Cnty. Republican Party v. Dallas Cnty. Democratic Party, 2019 WL 4010776 (Tex. App. Aug. 26, 2019) ..................................................14

vi Diocese of Galveston-Houston v. Stone, 892 S.W.2d 169 (Tex. App.—Houston [14th Dist.] 1994, orig. proceeding) .........................................................................................................10

Fed. Underwriters Exch. v. Pugh, 141 Tex. 539 (1943)............................................................................................10

Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567 (2004)............................................................................................17

Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468 (Tex. 2012) ..............................................................................15

In re Lamar Univ., No. 09-18-00241-CV, 2018 WL 3911062 (Tex. App.—Beaumont Aug. 16, 2018, orig. proceeding) ..........................................................8, 9, 18, 20

Matzen v. McLane, 659 S.W.3d 381 (Tex. 2021) ..............................................................................16

Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008) ..............................................................................12

Murk v. Scheele, 120 S.W.3d 865 (Tex. 2003) ..............................................................................16

In re Nonparty Patient 1, et al., Case No. 15-25-00032-CV ................................................................................... 5

Off. v. Ngakoue, 408 S.W.3d 350 (Tex. 2013) ..............................................................................21

Rattray v. City of Brownsville, 662 S.W.3d 860 (Tex. 2023) ........................................................................10, 13

Rivera v. Sonnenschein, 708 S.W.3d 294 (Tex. App. [15th Dist.] 2025) ..................................................10

Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012).................................................................................13

vii Stallworth v. Robison, 2021 WL 5496345 (Tex. App.—San Antonio Nov. 24, 2021, no pet.) .....................................................................................................................16

In re Tex. Bd. of Pardons & Paroles, 2024 WL 4891065 (Tex. App.—Dallas Nov. 26, 2024, no pet.) ....................... 19

Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835 (Tex. 2007) ..............................................................................19

Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993) ..............................................................................15

Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ........................................................................11, 12

Texas Right to Life v. Van Stean, 702 S.W.3d 348 (Tex. 2024) ..............................................................................10

Texas v. Lau, Cause No. 493-07676-2024 ........................................................................7, 8, 17

The State Bar of Texas v. Gomez, 891 S.W.2d 243 (Tex. 1994) ..............................................................................11

In re The State of Texas, Case No. 15-25-00039-CV ................................................................................... 5

In re Torres, No. 13-17-00172-CV, 2017 WL 2665986 (Tex. App.—Corpus Christi June 21, 2017, orig. proceeding)............................................................... 9

Univ. Interscholastic League v. Sw. Offs. Ass’n, Inc., 319 S.W.3d 952 (Tex. App.-Austin 2010, no pet.)............................................. 15

Wheeler v. L. Off. of Frank Powell, 2023 WL 5535670 (Tex. App. Aug. 29, 2023) ..................................................11

Statutes

Deceptive Trade Practices Act (DTPA)...........................................................3, 6, 14

Texas Civ. Prac. & Rem. Code Ann. Section 51.014 ....................................2, 18, 19

viii Texas Health & Safety Code Section 161.702 (SB 14) ....................................... 3, 15

Texas Controlled Substances Act (TCSA) ............................................................4, 5

Texas Tort Claims Act Section 101.106(f) .......................................................passim

Other Authorities

Texas Rule of Civil Procedure 91a ...................................................................passim

ix STATEMENT OF THE CASE

Nature of the Underlying This mandamus action arises out of the trial court’s Proceeding: refusal to hear the defendant’s plea to the jurisdiction before reaching the merits. In Collin County, the State of Texas (the “State”) filed a lawsuit alleging that M. Brett Cooper, M.D. (“Dr. Cooper”) violated Senate Bill 14, the Deceptive Trade Practices Act, and the Texas Controlled Substances Act by providing gender-affirming care to teenage patients. Dr. Cooper pleaded to the Court’s jurisdiction on the basis of sovereign immunity because he is employed by a State entity, the University of Texas Southwestern. The State’s lawsuit likewise alleges that Dr. Cooper is an employee of the University of Texas Southwestern. Dr. Cooper’s Plea first challenges the sufficiency of the pleadings and, in the alternative, the existence of facts affirmatively establishing jurisdiction. The Collin County Court has refused to set Dr. Cooper’s Plea to the Jurisdiction for a hearing. However, the Collin County Court has set two motions for hearing on May 29, 2025, that implicate the merits of this underlying action: the State’s Motion to Compel and Dr. Cooper’s Rule 91a Motion to Dismiss. Neither motion is jurisdictional.

Respondent: The Honorable Christine A. Nowak, Presiding Judge, 493rd District Court, Collin County, Texas, Russel A. Steindam Courts Building, 2100 Bloomdale Road, McKinney, TX 75071.

Respondent’s Challenged The Collin County Court’s refusal to hear Dr. Actions: Cooper’s Plea to the Jurisdiction and determine whether subject-matter jurisdiction exists before proceeding to merits-based motions and discovery.

x RECORD REFERENCES

“App.” refers to the appendix to this petition. “M.R.” refers to the mandamus record.

STATEMENT OF JURISDICTION

This Court has mandamus jurisdiction under Texas Government Code Section 22.221. Tex. Gov’t Code §§ 22.220 & 22.221.

ISSUES PRESENTED

Whether a writ of mandamus should issue to correct the trial court’s clear abuse of discretion by refusing to hear Dr. Cooper’s Plea to the Jurisdiction and proceeding to the merits of the case without first determining whether the court has subject-matter jurisdiction.

xi INTRODUCTION AND OVERVIEW

This mandamus petition challenges the trial court’s refusal to hear and rule on

Dr. Cooper’s pending Plea to the Jurisdiction before proceeding to the merits of the

case—choosing instead to hear Plaintiff, the State of Texas’s Motion to Compel

discovery responses and Dr. Cooper’s Rule 91a Motion to Dismiss (filed in

combination with and in the alternative to his Plea). Dr. Cooper is a State employee

sued in his official capacity as an Associate Professor and clinical physician at the

University of Texas Southwestern (“UTSW”). The State alleges no differently. As

a State employee, he has repeatedly urged the trial court to uphold his sovereign

immunity defense under Section 101.106(f) of the Texas Tort Claims Act at the

earliest opportunity.

But the trial court has declined to do so. Despite the parties providing

agreeable hearing dates, the trial court—on its own initiative—refused to set Dr.

Cooper’s Plea for hearing, instead setting a hearing for May 29, 2025, on the State’s

Motion to Compel (which was filed after Dr. Cooper’s Plea and is not jurisdictional),

and on Dr. Cooper’s Motion to Dismiss. The trial court stated in an email to the

parties that the issues presented in the Plea were not yet ripe because “full discovery”

had not taken place, skating over the portion of Dr. Cooper’s Plea that challenges

the sufficiency of the pleadings (for which no discovery is necessary at all). At the

1 same time, the State demanded, and the trial court agreed, that the Motion to Compel

should be heard before Dr. Cooper’s jurisdictional Plea.

This improper sequencing is depriving Dr. Cooper of both the immunity from

suit guaranteed by Section 101.106(f), and his statutory right to an interlocutory

appeal under Section 51.014(a)(8). It is black letter law that a trial court must

address subject-matter jurisdiction before proceeding to the merits. When a

defendant asserts immunity from suit, that threshold issue must be decided first.

This petition does not ask the Court to resolve the immunity issue. It only

asks that the Court compel the trial court to fulfill its basic, threshold duty:

determine whether it has subject-matter jurisdiction before proceeding further.

Without appellate intervention, Dr. Cooper will be forced to engage in burdensome

discovery and litigation that sovereign immunity is meant to shield Texas State

employees from.

If the trial court cannot resolve the jurisdictional challenge based on the

pleadings alone, then it may allow limited, targeted discovery—but only on disputed

jurisdictional facts, of which there are presently none. To identify the proper scope

of such discovery, the State would need to articulate the jurisdictional facts it

believes are disputed based on its current pleading of subject-matter jurisdiction.

But as the current case schedule stands, the trial court is pressing forward with

merits litigation—including a hearing on the State’s Motion to Compel broad, non-

2 jurisdictional discovery—before ever deciding whether it has the power to

adjudicate the case at all. Mandamus relief is necessary to halt this improper exercise

of judicial power and to ensure that threshold jurisdictional questions are resolved

before any further proceedings occur.

STATEMENT OF FACTS

This mandamus petition arises from a lawsuit by the State of Texas against

Dr. Cooper, a UTSW employee. In his clinical role at UTSW, he provided safe,

legal, and age-appropriate gender-affirming care to teenage patients at UTSW’s

Plano campus and at Children’s Health Medical Center Dallas (“Children’s”). M.R.

83 (First Amended Petition (“FAP”) ¶ 1) . In November 2024, the State sued Dr.

Cooper in his capacity as a UTSW employee under the Deceptive Trade Practices

Act (“DTPA”) and Senate Bill 14, codified at Texas Health and Safety Code Section

161.702(3) (“SB 14”). M.R. 10–12 (Verified Original Petition).

I. Dr. Cooper Promptly And Repeatedly Asserted The Trial Court Lacks Jurisdiction.

As early as January 2025, Dr. Cooper invoked sovereign immunity as a

defense. M.R. 45 (Original Answer). In February 2025, he moved to dismiss the

State’s DTPA claim under Section 101.106(f) of the Texas Tort Claims Act

(“TTCA”), asserting that he is immune as a State employee who is being sued in his

official capacity. See Tex. Civ. Prac. & Remedies Code § 101.106(f). M.R. 48–49

(Motion to Dismiss). Rather than comply with the TTCA’s mandate to amend its

3 pleadings and sue the governmental unit, the State instead added a third claim against

Dr. Cooper under the Texas Controlled Substances Act (“TCSA”). M.R. 83 (FAP

¶ 1). After a hearing, the trial court denied Dr. Cooper’s motion, holding his

sovereign immunity defense was “premature due to the 91A posture of Defendant’s

Motion.” M.R. 219 (Order Denying Motion to Dismiss). The trial court explained

it would “take up these arguments at the appropriate stage, when the Court can

properly consider evidence including any employment agreements, billing and

payment records, and related testimony.” Id.

That same day, Dr. Cooper served responses to the State’s discovery requests,

and also produced a limited number of documents, including his employment

agreement with UTSW. Declaration of Avi Moshenberg (“Moshenberg Dec.”) ¶ 2.

He later subpoenaed from UTSW and Children’s documents not only confirming

UTSW’s legal right to control his work as a UTSW employee, but also showing that

UTSW billed for Dr. Cooper’s services, even if they were provided to patients at

Children’s. M.R. 222 (Subpoena to Children’s), 233 (Subpoena to UTSW). Those

subpoenas remain outstanding.

In April 2025, Dr. Cooper filed a combined Plea to the Jurisdiction and

Motion to Dismiss, this time asserting that the trial court lacked subject-matter

jurisdiction as to all claims, including the new TCSA claim, because Section

101.106(f) of the TTCA confers sovereign immunity upon him. M.R. 259 (Plea to

4 the Jurisdiction). His plea raises both facial and factual challenges. Alternatively—

and only if his Plea to the Jurisdiction is denied—he seeks to dismiss the TCSA

claim for failure to plead a cognizable cause of action. Id. at 260.

II. Dr. Cooper Faces Burdensome Discovery Despite His Pending Jurisdictional Challenge.

This Court already knows about the invasive, burdensome discovery the State

has sought so far in this case, namely, patient medical and psychotherapy records

that UTSW and Children’s possess. Fourteen of the fifteen non-party patients put in

issue by the State have retained their own counsel, and filed their own mandamus

petition in this Court, seeking protection from the State’s subpoenas. See In re

Nonparty Patient 1, et al., Case No. 15-25-00032-CV. The State has also filed an

appeal related to these subpoenas. See In re The State of Texas, Case No. 15-25-

00039-CV.

On May 1, 2025, the State moved to compel additional discovery responses

from Dr. Cooper, including (among other things) interrogatories concerning Dr.

Cooper’s diagnosis and treatment of each of the fifteen patients put in issue by the

State’s Petition. M.R. 345, 369 (State’s Motion to Compel). Dr. Cooper explained

that responding to many of the State’s requests would require accessing patient

medical records currently subject to this Court’s Stay in In re Nonparty Patient 1, et

al., Case No. 15-25-00032-CV. M.R. 581 (Dr. Cooper’s April 23, 2025 Letter to

State); App. 73 (15th Court of Appeals Stay Order). None of the State’s discovery

5 relates to the subject-matter jurisdiction issues raised in Dr. Cooper’s Plea. Yet Dr.

Cooper is being forced to engage in merits discovery before the threshold question

of jurisdiction is resolved.

III. The Trial Court Refused To Set The Jurisdictional Plea For Hearing—But Set Hearings On Merits Issues.

After filing his Plea to the Jurisdiction and Motion to Dismiss, Dr. Cooper

promptly requested a hearing and the parties provided mutually agreeable dates to

the trial court. Below chronicles what followed since Dr. Cooper filed his Plea to

the Jurisdiction:

● On April 28, Dr. Cooper asked the trial court to set the Plea to the Jurisdiction and Rule 91a Motion for hearing. App. 2.

● On May 1, the Court Coordinator responded that the trial court was “reviewing her statements to the parties at the conclusion of the last hearing on the Plea to the Jurisdiction and asked that I not add this to the docket until she has an opportunity to do so.”1 App. 8.

● That same day, the State filed its Motion to Compel Discovery Responses. M.R. 345 (State’s Motion to Compel). The Motion to Compel does not seek jurisdictional discovery, address Dr. Cooper’s Plea to the Jurisdiction, or even mention the word “jurisdiction.” Id.

● On May 2, the trial court set the Motion to Dismiss and Motion to Compel for May 29. App. 15. The Court Coordinator relayed that the trial court “intends to review the transcript from the prior plea to the jurisdiction hearing

1 The April 25 filing is the only Plea to the Jurisdiction that has been filed in this case. See M.R. 1–10 (Docket). Dr. Cooper understands that the Court Coordinator’s email was referring to Dr. Cooper’s first Rule 91a Motion to Dismiss, which addressed only the DTPA claim. M.R. 48 (Motion to Dismiss). The trial court heard argument on that motion on February 28, 2025. M.R. 138–39 (Hearing Transcript).

6 in Cooper and would like to discuss with the Parties before we set the plea to the jurisdiction.”2 Id.

● On May 6, the trial court wrote to the parties: “The immunity and TTCA issues presented in the Plea to Jurisdiction filed 4/25 appear to be similarly postured as they were at the Feb. 28 hearing. Has full discovery regarding the employment and privilege issues discussed at the February hearing occurred? If yes, we can set this motion for hearing. If no, as discussed at the Feb hearing, it would appear we are not ripe to reset these issues for a second hearing.” App. 21. The trial court reiterated that the Rule 91a Motion to Dismiss and the Motion to Compel would be set for hearing on May 29, and then “directed” the parties to review the trial court’s ruling in the related State v. Lau matter (Cause No. 493-07676-2024) and to “substantively meet and confer regarding the discovery disputes after reviewing the Court’s orders entered in Lau.” Id.; see also App. 60–64, 65–71 (Lau Orders).

● On May 7, Dr. Cooper filed a letter, “respectfully request[ing] that the Court set the Plea to the Jurisdiction for May 29, 2025, or at the Court’s earliest convenience.” App. 24. The letter explained that the Plea to the Jurisdiction is ripe for setting and that further delay would inflict “substantial cost, prejudice, and undue burden on Dr. Cooper, as well as expends substantial State, Court and party resources.” Id.

● Later that day, the State responded that it “does not agree with Dr. Cooper’s characterization.” App. 19–20. The State clarified its belief that “it would be appropriate for the Court to consider the Plea to the Jurisdiction” only “after the Court has an opportunity to address the pending Motion to Compel” and only if Dr. Cooper first agreed to a jurisdictional deposition.

● On May 12, Dr. Cooper sought clarity from the Court Coordinator “that the State’s Motion to Compel and Dr. Cooper’s Rule 91a Motion to Dismiss will be set for hearing on May 29, but the plea to the jurisdiction will not be set for hearing that day?” App. 18. The Court Coordinator responded, “That is 2 The Court Coordinator specified “in Cooper” because the email also addressed a related case that is ongoing in the Collin County Court, Texas v. Lau, Cause No. 493-07676-2024. As noted above, the April 25 filing is the only Plea to the Jurisdiction that has been filed in either case. Moshenberg Dec. ¶ 5.

7 correct, the motion to dismiss and motion to compel are currently set on May 29 at 1:15 pm.”

● On May 21, the parties conferred as directed by the trial court, and discussed their respective positions on the need for jurisdictional discovery and how the court’s ruling in the related State v. Lau matter applied to the State’s pending Motion to Compel.

STANDARD OF REVIEW

“Mandamus relief is available when the record shows (1) the trial court clearly

abused its discretion or violated a duty imposed by law, and (2) the absence of an

adequate remedy by appeal.” City of Galveston v. Gray, 93 S.W.3d 587, 590 (Tex.

App.—Houston [14th Dist.] 2002, orig. proceeding). This petition meets both

requirements.

“A trial court abuses its discretion if it reaches a decision so arbitrary and

unreasonable as to constitute a clear and prejudicial error of law, or if it clearly fails

to correctly analyze or apply the law.” In re Lamar Univ., No. 09-18-00241-CV,

2018 WL 3911062, at *2 (Tex. App.—Beaumont Aug. 16, 2018, orig. proceeding).

Texas courts have consistently found an abuse of discretion when a trial court

“subjects a governmental unit to pre-trial discovery and the costs incident to

litigation without ruling on a plea to the jurisdiction.” See id.

There is no adequate appellate remedy when parties “stand to lose their

substantial rights,” like a “statutory right to an interlocutory appeal” from a denial

of a plea to the jurisdiction. City of Galveston, 93 S.W.3d at 590, 592. Parties further

8 stand to lose their substantial rights where they are subject to the “burden and

expense of litigation before their claims of immunity from suit have been

determined.” In re Lamar Univ., 2018 WL 3911062, at *3. “In this regard,

mandamus relief is available when a trial court litigates the merits of a case and

delays ruling on a plea to the jurisdiction.” See In re Torres, No. 13-17-00172-CV,

2017 WL 2665986, at *5 (Tex. App.—Corpus Christi June 21, 2017, orig.

proceeding) (collecting cases). Mandamus relief is appropriate in such cases even

when the record “does not contain a written order pertaining to the trial court’s

deferral of its ruling on jurisdiction prior to the production of discovery responses.”

See id. at *4, n.6.

ARGUMENT

I. The Trial Court Clearly Abused Its Discretion By Refusing To Rule On Subject-Matter Jurisdiction Before Proceeding To The Merits.

The trial court abused its discretion by pressing forward with merits litigation

before determining the threshold question of whether it has subject-matter

jurisdiction. Dr. Cooper has validly challenged the trial court’s subject-matter

jurisdiction on the grounds that—as a full-time State employee—he is immune from

suit under Section 101.106(f) of the Texas Tort Claims Act. Settled law requires

such a challenge to be resolved before a court proceeds to the merits. Despite this,

the trial court has set hearings on non-jurisdictional motions, while refusing to hear

9 Dr. Cooper’s Plea. Texas law is clear: this is an abuse of discretion. See, e.g., City

of Galveston, 93 S.W.3d at 591.

A. It Is A Fundamental Precept That A Court Must Have Subject- Matter Jurisdiction.

“Jurisdiction is a court’s first consideration.” Diocese of Galveston-Houston

v. Stone, 892 S.W.2d 169, 174 (Tex. App.—Houston [14th Dist.] 1994, orig.

proceeding). Courts must “have subject-matter jurisdiction before proceeding to the

merits . . . in every case, ranging from the most banal to the most controversial.”

Texas Right to Life v. Van Stean, 702 S.W.3d 348, 353 (Tex. 2024). Subject-matter

jurisdiction is an operation of law, and “cannot be conferred upon any court by

consent or waiver.” Fed. Underwriters Exch. v. Pugh, 141 Tex. 539, 541 (1943). A

sovereign immunity defense goes to the court’s subject-matter jurisdiction and is

therefore properly raised in a plea to the jurisdiction. City of Austin v. Quinlan, 669

S.W.3d 813, 818 (Tex. 2023); see also Rivera v. Sonnenschein, 708 S.W.3d 294,

297 n.9 (Tex. App. [15th Dist.] 2025) (explaining that State-level government

entities “enjoy[s] ‘sovereign immunity’ rather than ‘governmental immunity’

although the two are synonymous.”).

Without jurisdiction, a court has no power to issue relief. See In re City of

Dallas, 501 S.W.3d 71, 74 (Tex. 2016). Nor can it proceed to a case’s merits.

Rattray v. City of Brownsville, 662 S.W.3d 860, 868 (Tex. 2023) (“Just one valid

jurisdictional obstacle is enough for the court to halt further proceedings. The

10 fundamental rule is that the court may not reach the merits if it finds a single valid

basis to defeat jurisdiction.”). Trial courts must therefore determine subject-matter

jurisdiction “at [the] earliest opportunity.” Texas Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004); see also The State Bar of Texas v.

Gomez, 891 S.W.2d 243, 245 (Tex. 1994) (“As a general proposition, before a court

may address the merits of any case, the court must have … jurisdiction over the

subject matter … and capacity to act as a court.”).

B. The Trial Court’s Jurisdiction Has Been Rightfully Challenged.

Dr. Cooper has challenged the trial court’s subject-matter jurisdiction because

he is immune from suit under Section 101.106(f) of the Texas Tort Claims Act. M.R.

259–60 (Dr. Cooper’s Plea to the Jurisdiction); see also Wheeler v. L. Off. of Frank

Powell, 2023 WL 5535670, at *4 (Tex. App. Aug. 29, 2023) (“A motion to dismiss

filed pursuant to section 101.106(f)—which by its nature raises a claim of

governmental immunity—challenges the trial court’s subject-matter jurisdiction.”)

On April 25, 2025, Dr. Cooper pleaded to the trial court’s jurisdiction,

challenging both the sufficiency of the State’s pleadings and, if necessary, the

existence of facts affirmatively establishing jurisdiction.3 M.R. 265-66 (Dr.

3 Alternatively, the Plea may be considered a pleadings-based jurisdictional challenge because it does not “dispute any of the alleged facts” relating to sovereign immunity. In re Dallas Cnty., 2022 WL 1467987, at *3 (Tex. App.—Dallas May 10, 2022, no pet.) (finding that the “pleas to the jurisdiction constitute a pleadings-based jurisdictional challenge because they do not dispute any of the alleged facts relating to” the jurisdictional issue). The evidence attached to Dr. Cooper’s Plea confirms the State’s relevant allegations—it does not challenge or contradict them.

11 Cooper’s Plea to the Jurisdiction). See Alamo Heights Indep. Sch. Dist. v. Clark,

544 S.W.3d 755, 770 (Tex. 2018) (“Immunity from suit may be asserted through a

plea to the jurisdiction or other procedural vehicle, such as a motion for summary

judgment. A jurisdictional plea may challenge the pleadings, the existence of

jurisdictional facts, or both.”). In short, Dr. Cooper argued he is immune because

(1) he is a government employee, (2) the lawsuit is based on conduct within the

scope of his employment, and (3) the lawsuit could have been brought under the

TTCA against his governmental employer. See Tex. Civ. Prac. & Rem. Code

§ 101.106(f).

It is uncontroverted that Dr. Cooper is “an employee of the University of

Texas Southwestern Medical Center,” a State entity. M.R. 83 (FAP ¶ 1) Indeed,

that is the very first allegation in the very first paragraph of the State’s operative

pleading. It is also uncontroverted that the State is suing Dr. Cooper for actions

taken “in the course of his medical practice” as a State employee. M.R. 110 (FAP

¶ 197). And there can be no dispute that the State’s claims could have been brought

under the TTCA. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653,

658–59 (Tex. 2008) (“[A]ll tort theories alleged against a governmental unit . . . are

assumed to be under the Tort Claims Act for purposes of section 101.106.”) (cleaned

up). Dr. Cooper’s plea is therefore a proper assertion of immunity that the trial court

must address “as soon as practicable.” Miranda, 133 S.W.3d at 227.

12 C. The Trial Court Has Abused Its Discretion By Proceeding To The Merits Without Addressing The Jurisdictional Challenge.

Despite the clear challenge to its subject-matter jurisdiction, the trial court has

failed to resolve this gating issue. This was wrong, and unconstitutional. Courts

must decide jurisdiction before reaching the merits. See Rattray, 662 S.W.3d at 868–

69 (“[T]he court may not move to the merits if even one jurisdictional argument

remains unresolved.”). The Texas Constitution demands as much: “if a

governmental entity validly asserts that it is immune from a pending claim, any court

decision regarding that claim is advisory to the extent it addresses issues other than

immunity, and the Texas Constitution does not afford courts jurisdiction to make

advisory decisions or issue advisory opinions.” Rusk State Hosp. v. Black, 392

S.W.3d 88, 95 (Tex. 2012). Failure to address a legitimate jurisdictional challenge

before proceeding to the merits is a clear abuse of discretion. See, e.g., City of

Galveston, 93 S.W.3d at 591.

The trial court has refused to set Dr. Cooper’s Plea for hearing despite his

repeated requests, M.R. 649 (Dr. Cooper’s May 7, 2025, Letter to Court). Instead,

it pressed on with merits litigation by setting two merits-based motions for hearing

and directing the parties to engage in non-jurisdictional discovery. Texas courts

routinely recognize this as an abuse of discretion. See, e.g., In re City of Edinburg,

No. 13-23-00131-CV, 2023 WL 3185808, at *4 (Tex. App. May 1, 2023) (collecting

cases).

13 First, the trial court set the State’s Motion to Compel and Dr. Cooper’s Rule

91a Motion for hearing.4 Both motions implicate merits issues that cannot be

decided without jurisdiction. See Dallas Cnty. Republican Party v. Dallas Cnty.

Democratic Party, 2019 WL 4010776, at *4 (Tex. App. Aug. 26, 2019) (“A

dismissal under 91a is a judgment on the merits . . . In contrast, subject matter

jurisdiction is a prerequisite to entertaining the merits, and whenever a court finds a

lack of jurisdiction it is obligated to go no further and dismiss.”); City of Anson v.

Harper, 216 S.W.3d 384, 390 (Tex. App.—Eastland 2006, no pet.) (“If the trial court

does not have jurisdiction to enter a judgment, it does not have jurisdiction to allow

plaintiffs to conduct discovery.”). Notably, the State’s Motion to Compel asks the

trial court to address all of the State’s discovery requests—all of which were served

long before Dr. Cooper challenged the trial court’s jurisdiction.5 M.R. 345–347

(State’s Motion to Compel) These include, for example, “all communications,

documents, commentaries, and advocacy relating to the proposal, passage, existence,

4 Dr. Cooper made clear in his combined Plea and Motion to Dismiss that the Plea must be decided first. He argued: “Since Section 101.106(f) is a threshold jurisdictional bar, the Court need not proceed further. But in the event the Court denies Dr. Cooper’s plea and looks to the merits, the State’s Controlled Substances Act claim has no basis in law.” M.R. 260 (Plea to the Jurisdiction). 5 The State served its discovery requests on January 29, 2025. M.R. 345 (State’s Motion to Compel). Dr. Cooper filed his Plea to the Jurisdiction nearly three months later. To the extent that Dr. Cooper’s Rule 91a Motion to Dismiss the DTPA claim put the State on notice about Dr. Cooper’s immunity-based challenge, that was not filed until February 3, 2025. M.R. 48 (Motion to Dismiss). At most, Dr. Cooper pleaded in his January 27 Answer that “The State’s claims are barred by sovereign immunity.” M.R. 45 (Original Answer). The State’s requests do not address this defense. None of the State’s requests sought information about Dr. Cooper’s affirmative defenses. See M.R. 345–644 (State’s Motion to Compel and Exhibits).

14 or debate of Tex. Health & Safety Code § 161.702” and “medical records, billing

records, prescriptions, psychotherapy notes, and communications” relating to the

care and treatment of each of the fifteen patients discussed in the State’s Petition.

M.R. 397–411, 422 (State’s RFP Nos. 1–15, 26). It is clear from the State’s Motion

to Compel that the discovery it seeks is not jurisdictional. See M.R. 345 (State’s

Motion to Compel). Proceeding with this motion is an abuse of trial court’s

discretion. See Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 491 (Tex.

2012) (holding that while a trial court “should allow reasonable opportunity for

targeted discovery if necessary to illuminate jurisdictional facts in a plea to the

jurisdiction,” it cannot allow “thorough discovery of its case” in the face of a plea)

(cleaned up) (emphasis added).

Second, the State has not pursued targeted jurisdictional discovery—nor has

it even pleaded a theory of jurisdiction that would warrant discovery on the issue.

The State has the burden to “allege facts that affirmatively demonstrate the court’s

jurisdiction to hear the cause.” Texas Ass’n of Bus. v. Texas Air Control Bd., 852

S.W.2d 440, 446 (Tex. 1993). Its only allegation relating to jurisdiction avers that

Dr. Cooper is “an employee of the University of Texas Southwestern Medical

Center.” M.R. 83 (FAP ¶ 1). This allegation, which invokes sovereign immunity,

is not in dispute. See Univ. Interscholastic League v. Sw. Offs. Ass’n, Inc., 319

S.W.3d 952, 957 (Tex. App.-Austin 2010, no pet.) (noting it is “well settled” that

15 State universities such as UTSW are governmental entities subject to sovereign

immunity); see also Murk v. Scheele, 120 S.W.3d 865, 866 (Tex. 2003) (finding a

physician employed by the University of Texas was an employee of a governmental

unit within the meaning of the Texas Tort Claims Act even though he exercised

independent judgment in treating patients). Because this allegation is not in dispute,

there is no plausible basis to infer Dr. Cooper is anything but a State employee—

much less justify jurisdictional discovery. See City Of Kemah v. Vela, 149 S.W.3d

199, 205–06 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (finding that there

was “no additional discovery” needed when the relevant jurisdictional facts were

undisputed). This is not a situation where the State has pleaded an ultra vires claim,

see Matzen v. McLane, 659 S.W.3d 381, 389 (Tex. 2021), or alleged that the

challenged conduct occurred outside of Dr. Cooper’s UTSW employment. Cf.

Stallworth v. Robison, 2021 WL 5496345 (Tex. App.—San Antonio Nov. 24, 2021,

no pet.) (finding sovereign immunity did not apply when a doctor employed part-

time by the State was sued for actions performed entirely at his separate private

practice). On the contrary, the State had pleaded that Dr. Cooper is a State

employee—full stop.

To be clear, Dr. Cooper does not oppose properly scoped jurisdictional

discovery if the State had pleaded a theory that placed jurisdictional facts in dispute.

But Dr. Cooper does oppose avoidance of mandatory procedures. And these

16 procedures are firmly established: a jurisdictional fact issue must come before—and

guide—any jurisdictional fact-gathering. See In re Brown, 2020 WL 4047965, at *3

(Tex. App.—Dallas July 20, 2020, no pet.) (finding a deferral on a plea to the

jurisdiction for more discovery was an abuse of discretion where no fact dependent

claims were identified). Given that the State has not articulated any jurisdictional

theory that would support further discovery, there is no basis to delay a decision on

Dr. Cooper’s jurisdictional challenge for further discovery.

Third, the trial court has already forced engagement in improper discovery by

superimposing the State v. Lau orders into this action. See App. 21 (providing that

the State v. Lau orders should guide the discovery dispute here and directing the

parties to substantively meet and confer accordingly); App. 60, 65 (Lau Orders).

Those orders are facially non-jurisdictional. Jurisdiction has not been challenged in

State v. Lau and regardless, the orders concern, inter alia, the production of

documents created after the lawsuit was filed. See Grupo Dataflux v. Atlas Glob.

Grp., L.P., 541 U.S. 567, 570 (2004) (“[T]he jurisdiction of the court depends upon

the state of things at the time of the action brought. This time-of-filing rule is

hornbook law.”) (cleaned up).

While a trial court has discretion to manage its docket, it does not have

discretion to proceed to merits hearings while sidestepping a challenge to its subject-

matter jurisdiction—as the trial court has done here. See In re Congregation B’Nai

17 Zion of El Paso, 657 S.W.3d 578 (Tex. App.—El Paso 2022, no pet.) (finding an

abuse of discretion where a trial court allowed broad discovery before considering a

plea to the jurisdiction). Its decision to do so is an abuse of discretion that demands

this Court’s intervention.

II. There Is No Adequate Appellate Remedy Because Dr. Cooper Has Been Denied His Statutory Right To Interlocutory Appeal.

The trial court’s abuse of discretion has further stripped Dr. Cooper of an

adequate appellate remedy. The legislature gave State employees like Dr. Cooper

the right to an accelerated appeal upon the denial of an immunity-based plea to the

jurisdiction. By refusing to set a hearing on his Plea before proceeding to the merits

of the case, the trial court has deprived Dr. Cooper of his substantial right to this

remedy, in contravention of legislative intent. In re Lamar Univ., 2018 WL

3911062, at *3. Mandamus is necessary to correct this error.

A. The Trial Court’s Delay Deprives Dr. Cooper Of His Substantial Rights.

In establishing Civil Practices and Remedies Code Section 51.014, the Texas

legislature decided that “the State should not have to expend resources in trying a

case on the merits if it is immune from suit.” City of Galveston, 93 S.W.3d at 592.

This policy choice protects the State and its employees from “the expense of

unnecessary litigation, including pretrial discovery” through the right to an

accelerated interlocutory appeal if an immunity-based plea is denied. See In re

Bexar Medina Atascosa Ctys. Water Control & Improvement Dist. No. One, No. 04-

18 24-00538-CV, 2025 WL 466069, at *5 (Tex. App. Feb. 12, 2025) (“The Legislature

specifically granted governmental units . . . the right to an accelerated appeal from a

ruling on plea to the jurisdiction for the purpose of avoiding the expense of

unnecessary litigation, including pretrial discovery.”); Tex. Civ. Prac. & Rem. Code

Ann. § 51.014(a)(8).

As a State employee, Dr. Cooper is entitled to this substantial right. See Texas

A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007) (“Given that

Section 51.014(a)(8) necessarily applies to entities other than governmental units,

there is no basis for construing it to exclude state officials.”). But he cannot exercise

this right if the trial court avoids even considering his Plea. By refusing to set his

Plea, but proceeding forward on the Motion to Compel and the Rule 91a Motion to

Dismiss, the trial court is forcing Dr. Cooper, a State employee, to expend resources

litigating the merits of a case it does not have jurisdiction to rule over—exactly what

the legislature sought to prevent. See City of Galveston, 93 S.W.3d at 591.

Mandamus relief is therefore needed here to comport with the legislature’s intent.

See In re Tex. Bd. of Pardons & Paroles, 2024 WL 4891065, at *4 (Tex. App.—

Dallas Nov. 26, 2024, no pet.) (“[G]iven the purpose of sovereign immunity, we

conclude that mandamus is an efficient manner of resolving” a trial court’s refusal

to rule on a jurisdictional motion “prior to ordering it to submit to discovery.”)

(internal citation omitted).

19 Again, this principle is settled. Texas courts, when presented with this same

question, consistently reach the same conclusion. See City of Galveston, 93 S.W.3d

at 591 (“The city and the county argue a governmental unit’s entitlement to be free

from suit is effectively lost if the trial court erroneously assumes jurisdiction and

subjects the governmental unit to pre-trial discovery and the costs incident to

litigation; therefore the trial court abuses its discretion and there is no adequate

remedy at law. We agree.”) (emphasis added); In re Lamar Univ., 2018 WL

3911062, at *3 (“The trial court’s refusal to rule on the plea to the jurisdiction

deprives the governmental unit of its substantial right to an accelerated appeal.”); In

re Bexar Medina Atascosa Ctys. Water Control & Improvement Dist. No. One, 2025

WL 466069, at *5 (Tex. App. Feb. 12, 2025) (collecting cases where “relators had

no adequate remedy by appeal because the trial court’s order subjected them to the

burden and expense of litigation before determining their claims of immunity from

suit”).

B. The Trial Court’s Delay Frustrates The Texas Tort Claims Act’s Mandate of Expedited Dismissal.

The trial court’s refusal to rule on Dr. Cooper’s Plea departs from precedent

and undermines the Texas Legislature’s intent behind Section 101.106(f) of the

Texas Tort Claims Act. This provision is designed to prompt “the early dismissal of

a suit against an employee when the suit arises from an employee’s conduct that was

within the scope of employment and could be brought against the government under

20 the TTCA.” Texas Adjutant Gen.’s Off. v. Ngakoue, 408 S.W.3d 350, 355 (Tex.

2013); see also Tex. Civ. Prac. & Rem. Code § 101.106(f) (“On the employee’s

motion, the suit against the employee shall be dismissed unless the plaintiff files

amended pleadings dismissing the employee and naming the governmental unit as

defendant on or before the 30th day after the date the motion is filed.”) (emphasis

added).

Now, six months into the case, Dr. Cooper’s rights to a swift dismissal and

accelerated appeal have been jeopardized. See City of Galveston, 93 S.W.3d at 592

(“The city and the county stand to lose their substantial rights to an interlocutory

appeal specifically provided by the Legislature with the purpose of avoiding the

expense of pretrial discovery and attending mediation.”); see also In re Bexar, 2025

WL 466069, at *5 (“Here, the trial court’s rulings impair relators’ substantive and

procedural rights. First, relators’ right to a ruling on its jurisdictional challenge at

the trial court’s ‘earliest opportunity’ was impaired . . . Second, relators’ right to an

accelerated appeal to review the trial court’s jurisdictional ruling was impaired.”)

(cleaned up). The trial court’s continued, unjustified delay in ruling on Section

101.106(f)’s jurisdictional bar further impairs the legislature’s desire for early

dismissal of cases such as this, against government employees acting within the

scope of their employment. See Texas Adjutant Gen.’s Off. v. Ngakoue, 408 S.W.3d

at 355.

21 Mandamus is necessary here to correct the trial court’s abuse of discretion

and to safeguard the statutory rights the Legislature provided to protect State

employees like Dr. Cooper.

CONCLUSION

This is not a close call. The trial court has refused (on its own initiative) to

hear a properly raised jurisdictional Plea—flagrantly disregarding Texas

precedent—and set merits-based motions for hearing in a case over which it may

have no power to act. That is not discretionary case management. It is a

constitutional error. The trial court’s refusal to rule deprives Dr. Cooper of sovereign

immunity, strips him of his statutory right to an interlocutory appeal, and subjects

him to costly litigation. Dr. Cooper only seeks what Texas law requires: a ruling

on jurisdiction before the litigation proceeds. The trial court’s defiance of that rule

is an affront to the Legislature’s command and this Court’s appellate authority.

Dr. Cooper respectfully requests that this Court issue a writ directing the trial

court to promptly hear and decide his pending Plea to the Jurisdiction before taking

any further action in the case.

PRAYER

For these reasons, this Court should grant mandamus relief and issue a writ

directing the Collin County Court to set and hear his Plea to the Jurisdiction before

22 taking any other actions on the merits, including by hearing the pending Motion to

Compel and Rule 91A Motion to Dismiss.

May 21, 2025 Respectfully submitted,

/s/ Avi Moshenberg Nicholas R. Lawson Texas Bar No. 24083367 Avi Moshenberg Texas Bar No. 24083532 LAWSON & MOSHENBERG PLLC 801 Travis Street, Suite 2101 #838 Houston, TX 77002 (832) 280-5670 Nick.Lawson@lmbusinesslaw.com Avi.Moshenberg@lmbusinesslaw.com

Simona Agnolucci (application for pro hac admission pending) Barrington Dyer (application for pro hac admission pending) Jennifer J. Hardy Texas Bar No. 24096068 Anika Holland (application for pro hac admission pending) Emily Abbey (application for pro hac admission pending) Isabella McKinley Corbo (application for pro hac admission pending) Zoe Packman (application for pro hac admission pending) Rodolfo Rivera Aquino (application for pro hac admission pending) Remy Carreiro (application for pro hac admission pending) Emma Rodriguez (application for pro hac admission pending) WILLKIE FARR & GALLAGHER LLP 333 Bush St, 34th Floor San Francisco, CA 94104 (415) 858-7470

sagnolucci@willkie.com bdyer@willkie.com

23 aholland@willkie.com eabbey@willkie.com icorbo@willkie.com zpackman@willkie.com rriveraaquino@willkie.com rcarreiro@willkie.com erodriguez@willkie.com

24 CERTIFICATE OF FACTUAL SUPPORT

I hereby certify that I have reviewed the foregoing document and concluded that every factual statement in the foregoing document is supported by competent evidence included in the appendix or the record.

/s/ Avi Moshenberg Avi Moshenberg

CERTIFICATE OF COMPLIANCE

As required by Texas Rule of Appellate Procedure 9(i)(1), I hereby certify that the foregoing Petition for Writ of Mandamus contains 5,822 words.

CERTIFICATION OF SERVICE

I certify that the foregoing was served upon all interested parties pursuant to Texas Rule of Appellate Procedure 9.5(b)(2).

25 NO. ___________________ __________________________________________________________________ IN THE FIFTEENTH DISTRICT COURT OF APPEALS FOR THE STATE OF TEXAS AT AUSTIN, TEXAS __________________________________________________________________ In re M. Brett Cooper, M.D., Relator _______________________________________________________________ On Petition for Writ of Mandamus From the 493rd District Court at Collin County, Texas Cause No. 493-08026-2024 The Honorable Judge Christine A. Nowak, Presiding __________________________________________________________________

APPENDIX INDEX __________________________________________________________________

Tab Description 1 April 28, 2025 Email thread with parties and Court Coordinator 2 April 30, 2025 Email thread with parties and Court Coordinator 3 May 2, 2025 Email thread with parties and Court Coordinator 4 May 6, 2025 Email thread with parties and Court Coordinator 5 May 7, 2025 Dr. Cooper’s Letter to the Court 6 April 16, 2025 Order on the State of Texas’s Motion to Compel Defendant’s Discovery Responses And Dr. Lau’s Motion for Reconsideration of Order to Compel Documents Responsive to the State’s Request for Production No. 27 in State v. Lau, Cause No. 493- 07676-2024 7 May 6, 2025 Further Order Granting in part and Denying in part Defendant’s Motion for Reconsideration of Order to Compel Regarding State’s RFP No. 27 and Request for in Camera Review in State v. Lau, Cause No. 493-07676-2024

26 Tab Description 8 February 28, 2025 Order Denying Defendant M. Brett Cooper M.D.’s Motion to Dismiss Under Texas Rule of Civil Procedure 91a 9 April 24, 2025 Order in In Re Nonparty Patient 1 et al., Case No. 15- 25-00031-CV

VERIFICATION

My name is Avi Moshenberg, my date of birth is March 16, 1986. I am over the age of 18 years and am fully competent to make this declaration. My law firm address is 2301 Commerce Street, Houston, TX 77002. I am an attorney at Lawson & Moshenberg. I serve as counsel for Relator Dr. M. Brett Cooper M.D. in the above-captioned case. I am admitted to practice law in the State of Texas. I prepared the record and appendix in this case.

Based on my personal knowledge, the following facts are true and correct:

The documents in this Appendix Tabs 1–9 are true and correct copies of communications with the 493rd Judicial District Court, notices and orders filed and served in this case, and orders in related cases.

I declare under penalty of perjury that the foregoing is true and correct. Executed in Houston, Texas on May 21, 2025.

27 Appendix Tab 1

App. 1 From: Packman, Zoe To: Amy Patterson; "Rob Farquharson"; WFG_DrCooper; Avi Moshenberg; David Shatto; Sutker, Cory; Cooper, Jackie; Wolf, Alex; Lascano, Julie; Newsome, Jervonne D.; Logan, William; Hung, Jonathan; edlewis@winston.com Cc: Emily Samuels; Pauline Sisson; Johnathan Stone Subject: RE: 493-07676-2024 & 493-08026-2024 State of Texas Date: Monday, April 28, 2025 11:25:47 AM Attachments: image001.png image002.png 2025-04-25 Cooper"s Plea to Jurisdiction _ Motion to Dismiss.pdf 2025-04-25 Proposed Order Granting Plea to the Jurisdiction.pdf

Good afternoon Ms. Patterson,

Please find attached a courtesy copy of Dr. Cooper’s Plea to the Jurisdiction and Rule 91a Motion, which was filed this past Friday, April 25, in Case No. 493-08026-2024. Is the Court available to set this motion for hearing on Monday, June 2? If not, is the Court available to hear this motion on Wednesday, May 21 or Tuesday, June 3?

Thank you, Zoe

Zoe Packman Willkie Farr & Gallagher LLP 333 Bush St | San Francisco, CA 94104 Direct: +1 415 858 7404 | Fax: +1 415 858 7599 zpackman@willkie.com | vCard | www.willkie.com bio Pronouns: she, her, hers

From: Amy Patterson Sent: Tuesday, April 22, 2025 10:51 AM To: 'Rob Farquharson' ; WFG_DrCooper ; Avi Moshenberg ; David Shatto ; Sutker, Cory ; Cooper, Jackie ; Wolf, Alex ; Lascano, Julie ; Newsome, Jervonne D. ; Logan, William ; Hung, Jonathan ; edlewis@winston.com Cc: Emily Samuels ; Pauline Sisson ; Johnathan Stone Subject: RE: 493-07676-2024 & 493-08026-2024 State of Texas

*** EXTERNAL EMAIL ***

Thank you!

The orders have been signed and are being efiled.

App. 2 ** I will be out of the office April 23-28 without access to email; send all scheduling request to 493@co.collin.tx.us.

Thank you, Amy Patterson Court Coordinator, 493rd District Court Ph#214-491-4870

You MUST appear for your hearings unless the Court tells you otherwise.

Please send all scheduling request to 493@co.collin.tx.us for a faster response time.

From: Rob Farquharson Sent: Tuesday, April 22, 2025 12:47 PM To: Amy Patterson ; WFG_DrCooper ; Avi Moshenberg ; David Shatto ; Sutker, Cory ; Cooper, Jackie ; Wolf, Alex ; Lascano, Julie ; Newsome, Jervonne D. ; Logan, William ; Hung, Jonathan ; edlewis@winston.com Cc: Emily Samuels ; Pauline Sisson ; Johnathan Stone Subject: RE: 493-07676-2024 & 493-08026-2024 State of Texas

***** WARNING: External Email. Do not click links or open attachments that are unsafe. *****

Thank you, Ms. Patterson. I just spoke to Mr. Lewis, one of the attorneys representing the Non-Party Patients. The Non-Party Patients and State agree to the form of the attached order.

All the best,

Rob

Rob Farquharson Assistant Attorney General Consumer Protection Division Office of the Attorney General of Texas

From: Amy Patterson Sent: Tuesday, April 22, 2025 12:34 PM To: Rob Farquharson ; WFG_DrCooper ; Avi Moshenberg ; David Shatto ; Kimberly Gdula ; Brianna

App. 3 Krominga ; Sutker, Cory ; Cooper, Jackie ; Wolf, Alex ; Lascano, Julie ; Newsome, Jervonne D. ; Logan, William ; Hung, Jonathan Cc: Emily Samuels ; Pauline Sisson ; Johnathan Stone Subject: RE: 493-07676-2024 & 493-08026-2024 State of Texas

The Court denied the Motion for Protection, except in so far as is needed to be consistent with the Court’s prior ruling(s) on the Nonparty Patients Motion to Stay.

** I will be out of the office April 23-28 without access to email; send all scheduling request to 493@co.collin.tx.us.

Thank you, Amy Patterson Court Coordinator, 493rd District Court Ph#214-491-4870

You MUST appear for your hearings unless the Court tells you otherwise.

Please send all scheduling request to 493@co.collin.tx.us for a faster response time.

From: Rob Farquharson Sent: Tuesday, April 22, 2025 9:07 AM To: Amy Patterson ; WFG_DrCooper ; Avi Moshenberg ; David Shatto ; Kimberly Gdula ; Brianna Krominga ; Sutker, Cory ; Cooper, Jackie ; Wolf, Alex ; Lascano, Julie ; Newsome, Jervonne D. ; Logan, William ; Hung, Jonathan Cc: Emily Samuels ; Pauline Sisson ; Johnathan Stone Subject: RE: 493-07676-2024 & 493-08026-2024 State of Texas

***** WARNING: External Email. Do not click links or open attachments that are unsafe. *****

Good Morning Ms. Patterson:

The State’s understanding is as follows:

1. Cooper Scheduling Order: Agreed and filed. A draft is attached here.

App. 4 2. Order Denying Lau Objections to Stone Declaration: Agreed as to form. A draft is attached here. 3. Order on State’s Motion to Strike and Non-Party’s Motion for Protection: We don’t necessarily have a disagreement, but I believe we might need the Court to clarify whether it (a) denied the motion for protection in part or (b) granted it in part and denied it in part. In either event, we know that the Court’s objective is to maintain consistency with the Court’s 4/8 order and the current draft does make reference to that order.

All the best

Rob Farquharson Assistant Attorney General Consumer Protection Division Office of the Attorney General of Texas

From: Amy Patterson Sent: Tuesday, April 22, 2025 8:20 AM To: WFG_DrCooper ; Avi Moshenberg ; Rob Farquharson ; David Shatto ; Kimberly Gdula ; Brianna Krominga ; Sutker, Cory ; Cooper, Jackie ; Wolf, Alex ; Lascano, Julie ; Newsome, Jervonne D. ; Logan, William Subject: 493-07676-2024 & 493-08026-2024 State of Texas Importance: High

Good morning,

Please if an agreement on form of all orders has been reached or if we will be seeing you all today on anything.

** I will be out of the office April 23-28 without access to email; send all scheduling request to 493@co.collin.tx.us.

Thank you, Amy Patterson Court Coordinator, 493rd District Court Russell A. Steindam Courts Building 2100 Bloomdale Road

App. 5 McKinney, TX 75071 Collin County, Texas Ph#214-491-4870

You MUST appear for your hearings unless the Court tells you otherwise.

Please send all scheduling request to 493@co.collin.tx.us for a faster response time.

App. 6 Appendix Tab 2

App. 7 Holland, Anika

From: Amy Patterson Sent: Thursday, May 1, 2025 8:18 AM To: Packman, Zoe; 'Rob Farquharson'; WFG_DrCooper; Avi Moshenberg; David Shatto; Sutker, Cory; Cooper, Jackie; Wolf, Alex; Lascano, Julie; Newsome, Jervonne D.; Logan, William; Hung, Jonathan; edlewis@winston.com Cc: Emily Samuels; Pauline Sisson; Johnathan Stone Subject: RE: 493-07676-2024 & 493-08026-2024 State of Texas

Counsel‐ Judge Nowak is reviewing her statements to the parties at the conclusion of the last hearing on the Plea to Jurisdiction and asked that I not add this to the docket until she has an opportunity to do so.

Thank you, Amy Patterson Court Coordinator, 493rd District Court Ph#214-491-4870

You MUST appear for your hearings unless the Court tells you otherwise. Please send all scheduling request to 493@co.collin.tx.us for a faster response time.

From: Packman, Zoe Sent: Wednesday, April 30, 2025 4:48 PM To: Amy Patterson ; 'Rob Farquharson' ; WFG_DrCooper ; Avi Moshenberg ; David Shatto ; Sutker, Cory ; Cooper, Jackie ; Wolf, Alex ; Lascano, Julie ; Newsome, Jervonne D. ; Logan, William ; Hung, Jonathan ; edlewis@winston.com Cc: Emily Samuels ; Pauline Sisson ; Johnathan Stone Subject: RE: 493‐07676‐2024 & 493‐08026‐2024 State of Texas

***** WARNING: External Email. Do not click links or open attachments that are unsafe. *****

Hi Ms. Patterson,

Thank you for letting us know. We have conferred, and propose May 27, 28, and 29 as alternative dates.

Thanks again, Zoe

Zoe Packman

App. 8 Willkie Farr & Gallagher LLP 333 Bush St | San Francisco, CA 94104 Direct: +1 415 858 7404 | Fax: +1 415 858 7599 zpackman@willkie.com | vCard | www.willkie.com bio Pronouns: she, her, hers

From: Amy Patterson Sent: Wednesday, April 30, 2025 12:40 PM To: Packman, Zoe ; 'Rob Farquharson' ; WFG_DrCooper ; Avi Moshenberg ; David Shatto ; Sutker, Cory ; Cooper, Jackie ; Wolf, Alex ; Lascano, Julie ; Newsome, Jervonne D. ; Logan, William ; Hung, Jonathan ; edlewis@winston.com Cc: Emily Samuels ; Pauline Sisson ; Johnathan Stone Subject: RE: 493‐07676‐2024 & 493‐08026‐2024 State of Texas Importance: High

Counsel‐ at present we are set to be in a jury trial the week of June 2. Please confer and let me know 3 additional dates that all parties are available. In the meantime I am checking on one matter set on May 21 to confirm if it is going to go or settle. It is possible May 21 at 9am will work for the Court; I will be in touch with you soon.

Thank you, Amy Patterson Court Coordinator, 493rd District Court Ph#214-491-4870

You MUST appear for your hearings unless the Court tells you otherwise. Please send all scheduling request to 493@co.collin.tx.us for a faster response time.

From: Packman, Zoe Sent: Wednesday, April 30, 2025 10:59 AM To: Amy Patterson ; 'Rob Farquharson' ; WFG_DrCooper ; Avi Moshenberg ; David Shatto ; Sutker, Cory ; Cooper, Jackie ; Wolf, Alex ; Lascano, Julie ; Newsome, Jervonne D. ; Logan, William ; Hung, Jonathan ; edlewis@winston.com Cc: Emily Samuels ; Pauline Sisson ; Johnathan Stone Subject: RE: 493‐07676‐2024 & 493‐08026‐2024 State of Texas

***** WARNING: External Email. Do not click links or open attachments that are unsafe. *****

Good morning Ms. Patterson,

2 App. 9 Please find attached a courtesy copy of Dr. Cooper’s Plea to the Jurisdiction and Rule 91a Motion, which was filed this past Friday, April 25, in Case No. 493‐08026‐2024. I apologize, I sent this document initially while you were out of office.

Is the Court available to set this motion for hearing on Monday, June 2? If not, is the Court available to hear this motion on Wednesday, May 21 or Tuesday, June 3?

Zoe Packman Willkie Farr & Gallagher LLP 333 Bush St | San Francisco, CA 94104 Direct: +1 415 858 7404 | Fax: +1 415 858 7599 zpackman@willkie.com | vCard | www.willkie.com bio Pronouns: she, her, hers

From: Amy Patterson Sent: Tuesday, April 22, 2025 10:51 AM To: 'Rob Farquharson' ; WFG_DrCooper ; Avi Moshenberg ; David Shatto ; Sutker, Cory ; Cooper, Jackie ; Wolf, Alex ; Lascano, Julie ; Newsome, Jervonne D. ; Logan, William ; Hung, Jonathan ; edlewis@winston.com Cc: Emily Samuels ; Pauline Sisson ; Johnathan Stone Subject: RE: 493‐07676‐2024 & 493‐08026‐2024 State of Texas

** I will be out of the office April 23-28 without access to email; send all scheduling request to 493@co.collin.tx.us. Thank you, Amy Patterson Court Coordinator, 493rd District Court Ph#214-491-4870

You MUST appear for your hearings unless the Court tells you otherwise. Please send all scheduling request to 493@co.collin.tx.us for a faster response time.

From: Rob Farquharson Sent: Tuesday, April 22, 2025 12:47 PM To: Amy Patterson ; WFG_DrCooper ; Avi Moshenberg ; David Shatto ; Sutker, Cory 3 App. 10 ; Cooper, Jackie ; Wolf, Alex ; Lascano, Julie ; Newsome, Jervonne D. ; Logan, William ; Hung, Jonathan ; edlewis@winston.com Cc: Emily Samuels ; Pauline Sisson ; Johnathan Stone Subject: RE: 493‐07676‐2024 & 493‐08026‐2024 State of Texas

***** WARNING: External Email. Do not click links or open attachments that are unsafe. *****

Thank you, Ms. Patterson. I just spoke to Mr. Lewis, one of the attorneys representing the Non‐Party Patients. The Non‐ Party Patients and State agree to the form of the attached order.

Rob Farquharson Assistant Attorney General Consumer Protection Division Office of the Attorney General of Texas

From: Amy Patterson Sent: Tuesday, April 22, 2025 12:34 PM To: Rob Farquharson ; WFG_DrCooper ; Avi Moshenberg ; David Shatto ; Kimberly Gdula ; Brianna Krominga ; Sutker, Cory ; Cooper, Jackie ; Wolf, Alex ; Lascano, Julie ; Newsome, Jervonne D. ; Logan, William ; Hung, Jonathan Cc: Emily Samuels ; Pauline Sisson ; Johnathan Stone Subject: RE: 493‐07676‐2024 & 493‐08026‐2024 State of Texas

The Court denied the Motion for Protection, except in so far as is needed to be consistent with the Court’s prior ruling(s) on the Nonparty Patients Motion to Stay.

** I will be out of the office April 23-28 without access to email; send all scheduling request to 493@co.collin.tx.us. Thank you, Amy Patterson Court Coordinator, 493rd District Court Ph#214-491-4870

You MUST appear for your hearings unless the Court tells you otherwise. Please send all scheduling request to 493@co.collin.tx.us for a faster response time.

4 App. 11 From: Rob Farquharson Sent: Tuesday, April 22, 2025 9:07 AM To: Amy Patterson ; WFG_DrCooper ; Avi Moshenberg ; David Shatto ; Kimberly Gdula ; Brianna Krominga ; Sutker, Cory ; Cooper, Jackie ; Wolf, Alex ; Lascano, Julie ; Newsome, Jervonne D. ; Logan, William ; Hung, Jonathan Cc: Emily Samuels ; Pauline Sisson ; Johnathan Stone Subject: RE: 493‐07676‐2024 & 493‐08026‐2024 State of Texas

***** WARNING: External Email. Do not click links or open attachments that are unsafe. *****

1. Cooper Scheduling Order: Agreed and filed. A draft is attached here. 2. Order Denying Lau Objections to Stone Declaration: Agreed as to form. A draft is attached here. 3. Order on State’s Motion to Strike and Non‐Party’s Motion for Protection: We don’t necessarily have a disagreement, but I believe we might need the Court to clarify whether it (a) denied the motion for protection in part or (b) granted it in part and denied it in part. In either event, we know that the Court’s objective is to maintain consistency with the Court’s 4/8 order and the current draft does make reference to that order.

Rob Farquharson Assistant Attorney General Consumer Protection Division Office of the Attorney General of Texas

From: Amy Patterson Sent: Tuesday, April 22, 2025 8:20 AM To: WFG_DrCooper ; Avi Moshenberg ; Rob Farquharson ; David Shatto ; Kimberly Gdula ; Brianna Krominga ; Sutker, Cory ; Cooper, Jackie ; Wolf, Alex ; Lascano, Julie ; Newsome, Jervonne D. ; Logan, William Subject: 493‐07676‐2024 & 493‐08026‐2024 State of Texas Importance: High

5 App. 12 Please if an agreement on form of all orders has been reached or if we will be seeing you all today on anything.

** I will be out of the office April 23-28 without access to email; send all scheduling request to 493@co.collin.tx.us.

Thank you, Amy Patterson Court Coordinator, 493rd District Court Russell A. Steindam Courts Building 2100 Bloomdale Road McKinney, TX 75071 Collin County, Texas Ph#214-491-4870

You MUST appear for your hearings unless the Court tells you otherwise. Please send all scheduling request to 493@co.collin.tx.us for a faster response time.

Important Notice: This email message is intended to be received only by persons entitled to receive the confidential information it may contain. Email messages to clients of Willkie Farr & Gallagher LLP presumptively contain information that is confidential and legally privileged; email messages to non-clients are normally confidential and may also be legally privileged. Please do not read, copy, forward or store this message unless you are an intended recipient of it. If you have received this message in error, please forward it back. Willkie Farr & Gallagher LLP is a limited liability partnership organized in the United States under the laws of the State of Delaware, which laws limit the personal liability of partners.

Important Notice: This email message is intended to be received only by persons entitled to receive the confidential information it may contain. Email messages to clients of Willkie Farr & Gallagher LLP presumptively contain information that is confidential and legally privileged; email messages to non-clients are normally confidential and may also be legally privileged. Please do not read, copy, forward or store this message unless you are an intended recipient of it. If you have received this message in error, please forward it back. Willkie Farr & Gallagher LLP is a limited liability partnership organized in the United States under the laws of the State of Delaware, which laws limit the personal liability of partners.

6 App. 13 Appendix Tab 3

App. 14 Holland, Anika

From: Amy Patterson Sent: Friday, May 2, 2025 7:18 AM To: 'Pauline Sisson' Cc: Johnathan Stone; Rob Farquharson; David Shatto; Amy Pletscher; Emily Samuels; Melinda Pate; Packman, Zoe; WFG_DrCooper; Avi Moshenberg; Sutker, Cory; Cooper, Jackie; Wolf, Alex; Lascano, Julie; Newsome, Jervonne D.; Logan, William; Hung, Jonathan; edlewis@winston.com Subject: RE: Setting Request for No. 493-08026-2024; State of Texas v. M. Brett Cooper, M.D.

Importance: High

Counsel, we hope you are having a great Friday so far. After speaking with Judge Nowak, we are able to set the Motion to Dismiss and Motion to Compel in the Cooper case for May 29 at 1:15PM. The Court intends to review the transcript from the prior plea to jurisdiction hearing in Cooper and would like to discuss with the Parties before we set the plea to jurisdiction. With respect to the Lau matter, the Court following review of the in camera documents related to RFP No. 27 GRANTS the request to reconsider as it relates to Wilkie Farr & Gallagher communications after the filing of this lawsuit, and DENIES the request to reconsider as it relates to Patients/Patient’s Parents and News Reporters. The Court ORDERS Defendant to produce responsive documents or produce a privilege log on or before May 16, 2025 as to Patients/Patient’s Parents, and News Reporters. Counsel, please provide the Court a proposed order today regarding this production. The request to reconsider as to Winston Strawn, Children’s Health, and UTSW remains under advisement, and to that end the Court requests additional exemplars be provided for in camera review on or before May 16, 2025. In addition to the above, on or before May 16, 2025, the Court asks that you provide a joint status report regarding the status of the pending mandamus and the Dallas County proceedings. Many thanks.

Thank you, Amy Patterson Court Coordinator, 493rd District Court Ph#214-491-4870

You MUST appear for your hearings unless the Court tells you otherwise. Please send all scheduling request to 493@co.collin.tx.us for a faster response time.

From: Pauline Sisson Sent: Thursday, May 1, 2025 2:53 PM To: Amy Patterson Cc: Johnathan Stone ; Rob Farquharson ; David Shatto ; Amy Pletscher ; Emily Samuels ; Melinda Pate ; 'Packman, Zoe' ; WFG_DrCooper ; Avi Moshenberg ; Sutker, Cory ; Cooper, Jackie ; Wolf, Alex ; Lascano, Julie ;

App. 15 Newsome, Jervonne D. ; Logan, William ; Hung, Jonathan ; edlewis@winston.com Subject: Setting Request for No. 493‐08026‐2024; State of Texas v. M. Brett Cooper, M.D.

***** WARNING: External Email. Do not click links or open attachments that are unsafe. *****

Good afternoon, Ms. Patterson.

The State would like to set a one‐hour hearing on our Motion to Compel Discovery, which was e‐filed this morning. Would you provide us with several dates for our motion to be heard at the court’s earliest convenience?

Thank you for your time.

Pauline

Pauline Sisson Legal Assistant Consumer Protec on Division OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548, MC ‐ 010 Aus n, TX 78711‐2548 Pauline.Sisson@oag.texas.gov

2 App. 16 Appendix Tab 4

App. 17 From: Amy Patterson To: Abbey, Emily; Rob Farquharson; Packman, Zoe; WFG_DrCooper; Avi Moshenberg; Johnathan Stone; David Shatto; Sutker, Cory; Cooper, Jackie; Wolf, Alex; Lascano, Julie; Newsome, Jervonne D.; Logan, William; Pauline Sisson; Emily Samuels; Amy Pletscher Subject: RE: 493-08026-2024 State of Texas V. Cooper Date: Monday, May 12, 2025 9:10:46 AM Attachments: image001.png

That is correct, the motion to dismiss and motion to compel are currently set on May 29 at 1:15pm.

Thank you, Amy Patterson Court Coordinator, 493rd District Court Ph#214-491-4870

You MUST appear for your hearings unless the Court tells you otherwise.

Please send all scheduling request to 493@co.collin.tx.us for a faster response time.

From: Abbey, Emily Sent: Monday, May 12, 2025 10:42 AM To: Amy Patterson ; Rob Farquharson ; Packman, Zoe ; WFG_DrCooper ; Avi Moshenberg ; Johnathan Stone ; David Shatto ; Sutker, Cory ; Cooper, Jackie ; Wolf, Alex ; Lascano, Julie ; Newsome, Jervonne D. ; Logan, William ; Pauline Sisson ; Emily Samuels ; Amy Pletscher Subject: Re: 493-08026-2024 State of Texas V. Cooper

***** WARNING: External Email. Do not click links or open attachments that are unsafe. *****

Ms. Patterson:

Thank you, the parties will confer. To avoid any confusion, counsel for Dr. Cooper wants to confirm that the State’s Motion to Compel and Dr. Cooper’s Rule 91a Motion to Dismiss will be set for hearing on May 29, but the plea to the jurisdiction will not be set for hearing that day?

Thank you,

_

App. 18 On May 9, 2025 at 1:38:00ௗPM PDT, Amy Patterson wrote: *** EXTERNAL EMAIL ***

Please confer and then loop the court back in.

On May 29, please bring your calendars if you wish to schedule the conference room for depo’s.

Thank you, Amy Patterson Court Coordinator, 493rd District Court Ph#214-491-4870

You MUST appear for your hearings unless the Court tells you otherwise. Please send all scheduling request to 493@co.collin.tx.us for a faster response time.

Emily Abbey Willkie Farr & Gallagher LLP 333 Bush St | San Francisco, CA 94104 Direct: +1 415 858 7479 | Fax: +1 415 858 7599 eabbey@willkie.com | vCard | www.willkie.com bio Pronouns: she, her, hers

From: Rob Farquharson Sent: Wednesday, May 7, 2025 5:30 PM To: Packman, Zoe ; Amy Patterson ; WFG_DrCooper ; Avi Moshenberg ; Johnathan Stone ; David Shatto ; Sutker, Cory ; Cooper, Jackie ; Wolf, Alex ; Lascano, Julie ; Newsome, Jervonne D. ; Logan, William ; Pauline Sisson ; Emily Samuels ; Amy Pletscher Subject: RE: 493-08026-2024 State of Texas V. Cooper

***** WARNING: External Email. Do not click links or open attachments that are unsafe. *****

The State does not agree with Dr. Cooper’s characterization. In addition to the issues presented by our pending Motion to Compel, some of the attachments to Dr. Cooper’s

App. 19 filings were never even produced to the State prior to that filing. What is more, the State intends to cross-examine Dr. Cooper on the self-serving testimony that he has provided in support of the Plea to the Jurisdiction.

In light of the Court’s prior instructions and the urgency that Dr. Cooper’s counsel is now communicating, however, we will confer to see if they are willing to present Dr. Cooper for an initial deposition on jurisdictional topics only. If we can get an agreement on that front, and after the Court has an opportunity to address the pending Motion to Compel, we think it would be appropriate for the Court to consider the Plea to the Jurisdiction.

Rob Farquharson Assistant Attorney General Consumer Protection Division Office of the Attorney General of Texas

From: Packman, Zoe Sent: Wednesday, May 7, 2025 4:44 PM To: Amy Patterson ; WFG_DrCooper ; Avi Moshenberg ; Johnathan Stone ; Rob Farquharson ; David Shatto ; Kimberly Gdula ; Brianna Krominga ; Sutker, Cory ; Cooper, Jackie ; Wolf, Alex ; Lascano, Julie ; Newsome, Jervonne D. ; Logan, William Subject: RE: 493-08026-2024 State of Texas V. Cooper

Please find attached Dr. Cooper’s correspondence to the Court regarding the Plea to the Jurisdiction. In short, sufficient discovery has been completed as to the jurisdictional issues and Dr. Cooper therefore respectfully requests that the Court set the Plea to the Jurisdiction for hearing. Dr. Cooper has also filed this document on the docket for the Court’s convenience.

Zoe Packman Willkie Farr & Gallagher LLP

App. 20 333 Bush St | San Francisco, CA 94104 Direct: +1 415 858 7404 | Fax: +1 415 858 7599 zpackman@willkie.com | vCard | www.willkie.com bio Pronouns: she, her, hers From: Amy Patterson Sent: Tuesday, May 6, 2025 11:29 AM To: WFG_DrCooper ; Avi Moshenberg ; Rob Farquharson ; David Shatto ; Kimberly Gdula ; Brianna Krominga ; Sutker, Cory ; Cooper, Jackie ; Wolf, Alex ; Lascano, Julie ; Newsome, Jervonne D. ; Logan, William Subject: 493-08026-2024 State of Texas V. Cooper

Counsel, the Court has had an opportunity to review the Feb 28 hearing transcript. The immunity and TTCA issues presented in the Plea to Jurisdiction filed 4/25 appear to be similarly postured as they were at the Feb. 28 hearing. Has full discovery regarding the employment and privilege issues discussed at the February hearing occurred? If yes, we can set this motion for hearing. If no, as discussed at the Feb hearing, it would appear we are not ripe to reset these issues for a second hearing. Ms. Patterson has been directed to set the Rule 91a on Count 3 for hearing and by this email I have also asked her to set a hearing on the controlled substances act claim. A Motion to Compel has also now been filed. To that end, please be guided by the orders entered in the Lau case on discovery issues and the Court directs the parties to substantively meet and confer regarding the discovery disputes outstanding after reviewing the Court’s orders entered in Lau. We will add the Motion to Compel to the 5/29 hearing date. Thank you.

Thank you, Amy Patterson Court Coordinator, 493rd District Court Russell A. Steindam Courts Building 2100 Bloomdale Road McKinney, TX 75071 Collin County, Texas Ph#214-491-4870

App. 21 You MUST appear for your hearings unless the Court tells you otherwise.

Please send all scheduling request to 493@co.collin.tx.us for a faster response time.

Important Notice: This email message is intended to be received only by persons entitled to receive the confidential information it may contain. Email messages to clients of Willkie Farr & Gallagher LLP presumptively contain information that is confidential and legally privileged; email messages to non-clients are normally confidential and may also be legally privileged. Please do not read, copy, forward or store this message unless you are an intended recipient of it. If you have received this message in error, please forward it back. Willkie Farr & Gallagher LLP is a limited liability partnership organized in the United States under the laws of the State of Delaware, which laws limit the personal liability of partners.

Important Notice: This email message is intended to be received only by persons entitled to receive the confidential information it may contain. Email messages to clients of Willkie Farr & Gallagher LLP presumptively contain information that is confidential and legally privileged; email messages to non- clients are normally confidential and may also be legally privileged. Please do not read, copy, forward or store this message unless you are an intended recipient of it. If you have received this message in error, please forward it back. Willkie Farr & Gallagher LLP is a limited liability partnership organized in the United States under the laws of the State of Delaware, which laws limit the personal liability of partners.

App. 22 Appendix Tab 5

App. 23 Filed: 5/7/2025 4:35 PM Michael Gould District Clerk Collin County, Texas By Rosanne Summers Deputy Envelope ID: 100568837 333 Bush St San Francisco, CA 94104 Tel: 415 858 7400 Fax: 415 858 7599 May 7, 2025

Via Electronic Filing and Electronic Mail: apatterson@co.collin.tx.us

Hon. Christine A. Nowak Presiding Judge, 493rd Judicial District c/o Amy Patterson, Court Coordinator Collin County, Texas Russel A. Steindam Courts Building 2100 Bloomdale Road, McKinney, Texas 75071

Re: State of Texas v. M. Brett Cooper, M.D., Cause No. 493-08026-2024

Dear Judge Nowak:

Dr. Cooper respectfully requests that the Court set the Plea to the Jurisdiction for hearing on May 29, 2025, or at the Court’s earliest convenience. On May 6, 2025, the Court provided that the Plea to the Jurisdiction could be set for hearing if “full discovery regarding the employment and privilege issues discussed at the February hearing [had] occurred.” Exhibit A. Sufficient evidence has been produced to address the concerns the Court raised during the February 28 hearing, relevant transcript portions from which are attached as Exhibit B. The Plea is therefore ripe for setting at this stage. Conversely, unjustifiably delaying a decision on the Court’s subject matter jurisdiction over this matter inflicts substantial cost, prejudice, and undue burden on Dr. Cooper, as well as expends substantial State, Court and party resources. See In re Bexar Medina Atascosa Ctys. Water Control & Improvement Dist. No. One, 2025 WL 466069, at *4 (Tex. App. Feb. 12, 2025) (collecting cases where “Texas courts of appeals have concluded that a trial court abuses its discretion when it delays ruling on a jurisdictional plea for the purpose of allowing discovery unnecessary to the jurisdictional challenge.”).

Now six months into the litigation, jurisdiction must be decided without delay because (1) Dr. Cooper has provided evidence establishing immunity under the Texas Tort Claims Act; and (2) courts must determine subject matter jurisdiction at the earliest opportunity and before reaching the merits, which are at issue in the State’s Motion to Compel and Dr. Cooper’s Rule 91a Motion to Dismiss.

B RUSS ELS C HICAGO D ALLAS F RANKFURT H OUSTON L ONDON L OS A NGELES M ILAN M UNICH N EW Y ORK P ALO A LTO P ARIS R OME S AN F RANCISCO W ASHINGTON

App. 24 Dr. Cooper Has Provided Evidence Establishing Immunity.

During the February 28 hearing, the Court addressed Dr. Cooper’s Rule 91a Motion to Dismiss the Deceptive Trade Practices Act claim. The Court denied the motion, holding that the Texas Tort Claims Act (“TTCA”) and sovereign immunity arguments were premature. Exhibit B at 68. The Court requested evidence on this issue, specifically as to “who received the payment for the treatment,” “billing records,” and the “employment agreement” at issue. Id. at 69. As shown in the below chart, evidence filed with Dr. Cooper’s Plea to the Jurisdiction satisfies the Court’s requests:

Court’s Evidence Presented in Plea Request

Employment ● Letter of Intent from UTSW to Dr. Cooper (Packman Decl. Ex. A). Agreement ● Signed UTSW Faculty Code of Professional Conduct (Packman Decl. Ex. B). ● Agreement for Participation in Medical Services, Research and Development Plan, The University of Texas Southwestern Medical Center and Assignment (Packman Decl. Ex. C). ● June 14, 2018 “Acceptance of Letter of Intent Email” (Packman Decl. Ex. D). ● UTSW Offer Letter (Packman Decl. Ex. E). ● Dr. Cooper’s Memorandums of Appointment (Packman Decl. Exs. F–H).

Who ● Dr. Cooper’s Memorandums of Appointment (Packman Decl. Exs. F–H) (providing Received the that Dr. Cooper “shall assign all professional income . . . to the Institutional Trust Payment for Fund” including “Professional fees . . . generated for all patient care services rendered Treatment by full-time faculty Members regardless of where rendered”) (emphasis added). ● Cooper Decl. ¶ 10 (“All of the patients that I see are billed through UTSW for professional fees for the provision of care and have billing records stored by UTSW”).

Billing ● Dr. Cooper’s Memorandums of Appointment (Packman Decl. Exs. F–H) (providing Records that Dr. Cooper “shall assign all professional income . . . to the Institutional Trust Fund” including “Professional fees . . . generated for all patient care services rendered by full-time faculty Members regardless of where rendered”) (emphasis added). ● Cooper Decl. ¶ 10 (“All of the patients that I see are billed through UTSW for professional fees for the provision of care and have billing records stored by UTSW”).

Additional ● Description of venue discovery documents showing Dr. Cooper’s status as UTSW Evidence employee (Packman Decl. ¶¶ 9–10). Beyond ● Dr. Cooper’s paystub from UTSW (Packman Decl. Ex. I). Court’s ● Dr. Cooper’s W-2 forms (Packman Decl. Exs. J–K). Requests ● Dr. Cooper’s Promotion Letter (Packman Decl. Ex. L). ● Dr. Cooper’s sworn declaration explaining UTSW’s control of his employment.

2 App. 25 While the patients’ billing records are unavailable pursuant to the current stay, there is no fact question as to what hospital was billed for the care at issue. Dr. Cooper’s Memorandums of Appointment make clear that all payment for Dr. Cooper’s provision of medical services is assigned to UTSW’s Institutional Trust Fund. See In re Bexar, 2025 WL 466069, at *4. Billing records would only be redundant here.

This conclusion is reinforced by examining Stallworth v. Robison, 2021 WL 5496345 (Tex. App. Nov. 24, 2021), as the Court directed during the February 28 hearing. Ex. B at 67–69. As explained in the Plea, Stallworth concerned a part-time government employee who was sued for actions performed at his private plastic surgery practice. Billing records were relevant in Stallworth because his agreement with the state hospital did not require fee assignment—indeed, he had an entirely separate part-time job at his private practice. Attached as Exhibit C is the motion for summary judgment filed in Stallworth, which attaches Dr. Stallworth’s Memorandum of Appointment. Ex. C. at 15. Unlike Dr. Cooper’s Memorandums, Dr. Stallworth’s shows that he is employed at 75 percent time and accordingly excludes the fee assignment provision provided in Dr. Cooper’s Memorandums. Id. For convenience, Dr. Cooper’s 2024 Memorandum of Appointment is attached here as Exhibit D. No additional evidence is needed here to show that UTSW was billed for Dr. Cooper’s services, or that Dr. Cooper is an “employee” under the TTCA. The UTSW’s billing and employment of Dr. Cooper are beyond dispute and additional discovery will not alter these facts.

Jurisdiction Must Be Decided Before Reaching the Merits of the Other Outstanding Motions.

“Jurisdiction is a court’s first consideration.” Diocese of Galveston-Houston v. Stone, 892 S.W.2d 169, 174 (Tex. App. 1994). Courts must “have subject-matter jurisdiction before proceeding to the merits . . . in every case, ranging from the most banal to the most controversial.” Texas Right to Life v. Van Stean, 702 S.W.3d 348, 353 (Tex. 2024). Trial courts must therefore determine subject matter jurisdiction “at [the] earliest opportunity.” Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A claim of sovereign immunity—such as that which is conferred onto Dr. Cooper by Section 101.106(f) of the TTCA—“defeats a trial court's subject matter jurisdiction” and is therefore “properly asserted in a plea to the jurisdiction.” City of Galveston v. Gray, 93 S.W.3d 587, 591 (Tex. App. 2002).

The case law is abundantly clear. This Court cannot proceed to the merits of Dr. Cooper’s case without resolving whether it has subject-matter jurisdiction over the matter as a whole. See Rattray v. City of Brownsville, 662 S.W.3d 860, 868–69 (Tex. 2023) (“As a corollary, the court may not move to the merits if even one jurisdictional argument remains unresolved.”); In re Torres, No. 13-17-00172-CV, 2017 WL 2665986, at *5 (Tex. App. June 21, 2017) (“Nevertheless, it is a ‘fundamental precept that a court must not proceed on the merits of a case until legitimate challenges to its jurisdiction have been decided.’”); In re City of Edinburg, No. 13-23-00131-CV,

3 App. 26 2023 WL 3185808, at *4 (Tex. App. May 1, 2023) (“The subject matter of the pending motion or plea is relevant to our analysis, and we have stated that the failure to rule on a jurisdictional matter is a ‘pivotal factor’ in determining whether mandamus should issue given that jurisdiction presents a threshold issue in any case.”).

The Court has set a hearing on Dr. Cooper’s Rule 91a Motion to Dismiss and the State’s Motion to Compel for May 29, 2025. Both motions implicate merits issues that cannot be decided without jurisdiction. See Dallas Cnty. Republican Party v. Dallas Cnty. Democratic Party, 2019 WL 4010776, at *4 (Tex. App. Aug. 26, 2019) (“A dismissal under 91a is a judgment on the merits . . . In contrast, subject matter jurisdiction is a prerequisite to entertaining the merits, and whenever a court finds a lack of jurisdiction it is obligated to go no further and dismiss.”); In re Bexar Medina Atascosa Ctys. Water Control & Improvement Dist. No. One, 2025 WL 466069, at *5 (Tex. App. Feb. 12, 2025) (collecting cases where “relators had no adequate remedy by appeal because the trial court’s order subjected them to the burden and expense of litigation before determining their claims of immunity from suit”).

Accordingly, Dr. Cooper respectfully requests that the Court set the hearing on the Plea to the Jurisdiction for May 29, 2025, or at the Court’s earliest opportunity, and before hearing the additional outstanding motions. Deciding jurisdiction at this juncture serves the interests of the parties. In contrast, proceeding on uncertain subject matter jurisdiction denies Dr. Cooper of the protections afforded to all Texas state employees and exposes the Texas Attorney General’s Office to the expenditure of misdirected resources.

Sincerely,

Zoe Packman Counsel for Defendant Dr. Cooper

cc: Johnathan Stone, Consumer Protection Division, Attorney General’s Office Johnathan.Stone@oag.texas.gov Rob Farquharson, Consumer Protection Division, Attorney General’s Office Rob.Farquharson@oag.texas.gov David Shatto, Consumer Protection Division, Attorney General’s Office David.Shatto@oag.texas.gov

4 App. 27 EXHIBIT A

App. 28 Packman, Zoe

From: Amy Patterson Sent: Tuesday, May 6, 2025 11:29 AM To: WFG_DrCooper; Avi Moshenberg; Rob Farquharson; David Shatto; Kimberly Gdula; Brianna Krominga; Sutker, Cory; Cooper, Jackie; Wolf, Alex; Lascano, Julie; Newsome, Jervonne D.; Logan, William Subject: 493-08026-2024 State of Texas V. Cooper

Counsel, the Court has had an opportunity to review the Feb 28 hearing transcript. The immunity and TTCA issues presented in the Plea to Jurisdiction filed 4/25 appear to be similarly postured as they were at the Feb. 28 hearing. Has full discovery regarding the employment and privilege issues discussed at the February hearing occurred? If yes, we can set this motion for hearing. If no, as discussed at the Feb hearing, it would appear we are not ripe to reset these issues for a second hearing. Ms. Patterson has been directed to set the Rule 91a on Count 3 for hearing and by this email I have also asked her to set a hearing on the controlled substances act claim. A Motion to Compel has also now been filed. To that end, please be guided by the orders entered in the Lau case on discovery issues and the Court directs the parties to substantively meet and confer regarding the discovery disputes outstanding after reviewing the Court’s orders entered in Lau. We will add the Motion to Compel to the 5/29 hearing date. Thank you.

Thank you, Amy Patterson Court Coordinator, 493rd District Court Russell A. Steindam Courts Building 2100 Bloomdale Road McKinney, TX 75071 Collin County, Texas Ph#214-491-4870

You MUST appear for your hearings unless the Court tells you otherwise. Please send all scheduling request to 493@co.collin.tx.us for a faster response time.

App. 29 EXHIBIT B

App. 30 1

1 REPORTER'S RECORD

2 TRIAL COURT CAUSE NO. 493-07676-2024 TRIAL COURT CAUSE NO. 493-08026-2024 3

4 THE STATE OF TEXAS, § IN THE DISTRICT COURT § 5 § Plaintiff, § 6 § VS. § 7 § 493RD JUDICIAL DISTRICT § 8 MAY C. LAU, M.D., § § 9 § Defendant. § COLLIN COUNTY, TEXAS 10

11 THE STATE OF TEXAS, § IN THE DISTRICT COURT 12 § § 13 Plaintiff, § § 14 VS. § § 493RD JUDICIAL DISTRICT 15 § M. BRETT COOPER, M.D., § 16 § § 17 Defendant. § COLLIN COUNTY, TEXAS

19 -----------------------------

20 MOTION HEARING

21 -----------------------------

22 On the 28th day of February, 2025, the following 23 proceedings came on to be heard in the above-entitled and numbered cause before the Honorable Christine Nowak, 24 Judge presiding, held in McKinney, Collin County, Texas;

25 Proceedings reported by machine shorthand.

App. 31 67

1 that Dr. Cooper is not an independent contractor of UT

2 and that UT does not not have the legal right to control

3 his work based on the exclusion in the definition.

4 THE COURT: I don't think I agree with that

5 particular argument given the fact that they've also

6 alleged that he has privileges. And so one of the cases

7 you already cited was Skapek, and then Skapek is cited

8 by a number of other authorities, one of them being

9 Stallworth, which is 2021 Westlaw 5496345, which is at

10 the MTD stage, not a Rule 91a but just at a motion to

11 dismiss. And the case kind of goes through not

12 identical factual allegations but similar to here, where

13 services were provided at a nongovernmental unit. And

14 the query became, well, who had control, the legal right

15 to control the treatment that was being provided. And

16 that court ultimately concluded that a motion to dismiss

17 could not or should not be granted given, in part, the

18 fact issues.

19 And so, again, I just want to come back

20 to -- I mean, you just cited the definition to me. Do

21 you agree that at present, we don't know who had the

22 legal right to control all of the treatment and services

23 that were provided for each of these patients, or do you

24 disagree with that?

25 MS. CORBO: I think that we just need to

App. 32 68

1 focus on the word "employee" in the first paragraph of

2 the State's petition.

3 THE COURT: All right. So at present,

4 then, the Court similarly denies Dr. Cooper's motion to

5 dismiss. In doing so, I want to be abundantly clear as

6 it relates to the TTCA and the sovereign immunity. I

7 think the arguments y'all have raised require the Court

8 to consider evidence. I just think that's where we're

9 at. And so while I don't think they're properly raised

10 in a 91a context, I am simply denying them as premature

11 because the Court has to consider evidence.

12 Are there any questions whatsoever

13 regarding the Court's ruling related to the TTCA and the

14 sovereign immunity arguments, Counsel for Dr. Cooper?

15 MS. CORBO: No, Your Honor.

16 THE COURT: Counsel for --

17 MS. SMITH: No, Your Honor.

18 THE COURT: All right. Because I think

19 that we need to make the clarification in the order, I

20 was able with Dr. Lau's, which doesn't contain those

21 arguments, just to sign a simple order that says Rule

22 91a is denied, and I sent that on to the clerk's office.

23 Because I think Dr. Cooper's order needs to be more

24 nuanced, I'm going to ask you to prepare a draft,

25 provide it to opposing counsel, and then get it to me to

App. 33 69

1 sign because I want it to be clear from its face that

2 I'm finding that it's premature for the Court to

3 consider the TTCA and the sovereign immunity arguments.

4 Okay? Anybody have any questions about that?

5 MS. SMITH: No.

6 THE COURT: I would encourage everybody,

7 some of the cases that are on this topic talk as well

8 about what the relevant discovery is. So, for example,

9 you know, the billing records are relevant, who actually

10 paid -- who received the payment for the treatment, was

11 it UT Southwestern, was it Children's, and so I would

12 say some of these cases are likely very helpful for the

13 parties to be able to tailor, in addition to the

14 employment agreement. I don't think that's the sum

15 total of what courts have looked to on the legal right

16 to control, and so y'all might drill down on those cases

17 so that you can ascertain and perhaps, again, since

18 we've been discussing discovery issues today, whether or

19 not there is a way for us to get in this roll one the

20 copy of the employment agreement, billing records

21 related to the treatment, and who received payment. And

22 again, I think that's in your -- both parties' best

23 interest, so y'all might want to kind of drill down on

24 that piece.

25 MS. CORBO: Your Honor, just to clarify,

App. 34 EXHIBIT C

App. 35 FILED 4/14/2021 2:21 PM Mary Angie Garcia Bexar County District Clerk Accepted By: Jennifer Valencia

CAUSE NO. 2018CI18541

CHARLES ROBISON § IN THE DISTRICT COURT § v. § 57th JUDICIAL DISTRICT § CHRISTIAN STALLWORTH, M.D. § BEXAR COUNTY, TEXAS

DEFENDANT, CHRISTIAN STALLWORTH, M.D.’S MOTION FOR SUMMARY JUDGMENT AND TO DISMISS PURSUANT TO TEXAS CIVIL PRACTICE & REMEDIES CODE § 101.106(f)

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES CHRISTIAN STALLWORTH, M.D., Defendant herein, and files this

Motion for Summary Judgment and to Dismiss Pursuant to Texas Civil Practice &

Remedies Code Section 101.106(f), and in support thereof, would respectfully show unto

the Court as follows:

I. BACKGROUND

1. This cause is a health-care-liability claim set for trial beginning October 5,

2020. As set forth in Plaintiff’s Second Amended Original Petition filed September 25,

2019, Plaintiff, CHARLES ROBISON (“Robison”) brings claims for medical negligence

and lack of informed consent.

2. Plaintiff alleges that on January 4, 2018, Defendant, CHRISTIAN

STALLWORTH (“Dr. Stallworth”) was negligent for performing surgery on Robison that

was not medically indicated consisting of tonsillectomy and uvulopalatopharyngoplasty

for treatment of obstructive sleep apnea and recurrent sinus infections. Robison, a

professional entertainer and recording artist, also alleges that Dr. Stallworth’s failure to

inform him prior to surgery of the associated risks of dysphonia (impairment or change in

App. 36 voice quality that affects the ability to speak or sing) and dysphagia (difficulty swallowing)

has proximately caused him injury and specifically that he is unable to sing and

experiences difficulty swallowing foods and liquids. Plaintiff claims he can no longer work

as a professional entertainer and recording artist because of those complications and

seeks to recover at least $2,035,370.00 in lost earnings and lost earning capacity.

II. BASIS OF MOTION

3. Dr. Stallworth moves this Court to enter a judgment that Plaintiff take

nothing by his claims or causes of action against him, or in the alternative an order of

dismissal of this suit, because Plaintiff’s allegations are based on conduct within the

scope of Dr. Stallworth’s employment with the University of Texas Health Science Center

at San Antonio (UT) and could have been brought against that governmental unit under

the Texas Tort Claims Act, Texas Civil Practice & Remedies Code Sections 101.021, et

seq. The uncontroverted evidence proves Plaintiff brought suit against Dr. Stallworth

based on conduct in the scope of his employment with the University of Texas Health

Science Center at San Antonio, a governmental unit, and therefore Dr. Stallworth cannot

be sued in his individual capacity because he is immune from suit.

III. MOTION TO DISMISS PURSUANT TO TEXAS CIVIL PRACTICE & REMEDIES CODE § 101.106(f)

A. Tort Claims Act

4. A defendant is entitled to dismissal upon proof that the plaintiff’s suit is (1)

based on conduct within the scope of the defendant’s employment with a governmental

unit; and (2) could have been brought against the governmental unit under the Tort Claims

App. 37 Act. TEX. CIV. PRAC. & REM. CODE § 101.106(f); see Franka v. Velasquez, 332 S.W.3d

367, 369 (Tex. 2011); Anderson v. Bessman, 365 S.W.3d 119, 124 (Tex. App.—Houston

[1st Dist.] 2011, no pet.). The statute states:

If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.

TEX. CIV. PRAC. & REM. CODE § 101.106(f) (emphasis added).

5. Dr. Stallworth moves the Court to enter an order of dismissal of Plaintiff’s

health-care liability claim pursuant Texas Civil Practice & Remedies Code Section

101.106(f) because (1) it is based on conduct within the scope of Dr. Stallworth’s

employment with UT; and (2) Plaintiff could have brought suit against UT.

B. Employee of Governmental Unit

6. On January 4, 2018 and at all times relevant to this suit, Dr. Stallworth was

a clinical associate professor and employed physician of the University of Texas Health

Science Center at San Antonio. (Exhibit “A.”) The University of Texas Health Science

Center at San Antonio, now called UT Health San Antonio, is a governmental unit as it is

a component institution of The University of Texas System under the management and

control of the board of regents of The University of Texas System. TEX. EDUC. CODE §

74.151. 1

7. The uncontroverted evidence establishes that Dr. Stallworth was employed

1 A brief history of UT Health San Antonio is summarized on its website at https://www.uthscsa.edu/university/office-president.

App. 38 as a physician and clinical associate professor at UT by the Board of Regents of the

University of Texas System, effective September 27, 2017. (Exhibit “A.”) As an employed

physician and clinical associate professor of Facial Plastic and Reconstructive Surgery

with the Department of Otolaryngology–Head and Neck Surgery at UT, Dr. Stallworth was

paid a salary and fringe benefits by UT and assigned with the duty to perform head and

neck surgery at University Hospital, educate UT medical students and residents, train and

supervise head-and-neck surgery residents with their clinical duties and patient care

activities at University Hospital, and provide on-call coverage for trauma patients at

University Hospital. Id. Under the terms of his employment, Dr. Stallworth was required

to devote not less than 75 percent of his professional time as a physician to such duties

and responsibilities. In addition, Dr. Stallworth was subject to the provisions of the Rules

and Regulations of the Board of Regents, Regental and UT System policies, and the rules

and regulations of UT, including policies requiring the disclosure of risks and hazards of

surgery. Id.

C. Conduct within Scope of Employment

8. “Scope of employment” under the Tort Claims Act is defined as “the

performance for a governmental unit of the duties of an employee's office or employment

and includes being in or about the performance of a task lawfully assigned to an employee

by competent authority.” TEX. CIV. PRAC. & REM. CODE § 101.001(5). The uncontroverted

evidence establishes that Dr. Stallworth was working in the scope of his employment with

UT when he performed the January 4, 2018 surgery at University Hospital. (Exhibit “A.”)

University Hospital is a public teaching hospital owned and operated by the Bexar County

App. 39 Health District, doing business as the University Health System 2 See Franka v.

Velasquez, 332 S.W.3d 367, 369-70 (Tex. 2011). University Hospital is staffed with

medical faculty, residents, and students of the University of Texas Health Science Center.

See Murk v. Scheele, 120 S.W.3d 865, 866 (Tex. 2003). In performing the January 4,

2018 surgery, Dr. Stallworth fulfilled his duties as obligations within the scope of his

employment as a physician with UT. (Exhibit “A.”)

9. Dr. Stallworth was not merely Robison’s attending surgeon at University

Hospital, but also acting in his capacity as clinical associate professor of UT’s Department

of Otolaryngology–Head and Neck Surgery insofar as he trained and supervised

Raymond J. Brown, M.D., Chukwuemeka C. Runyon, M.D., and Philip D. Heichel, M.D.—

all of whom were surgical residents at UT—in the medical care and treatment they

rendered to Robison, pursuant to Dr. Stallworth’s duties and responsibilities of

employment with UT. (Exhibit “A.”) More specifically, Dr. Stallworth provided clinical

instruction to Dr. Brown regarding the various procedures performed during the January

4, 2018 surgery, supervised Dr. Brown’s care and treatment, and reviewed and approved

Dr. Brown’s documentation. (Exhibit “A.”) Further, Dr. Stallworth supervised Dr. Runyon

and Dr. Heichel in the medical care and treatment they rendered to Robison and reviewed

and approved their documentation. Id. Had Dr. Stallworth determined any reason to do

so, he would have counseled the residents to improve their clinical treatment and/or

documentation. Id.

10. It should be noted that nothing in Tort Claims Act, including the statutory

definition of “scope of employment,” suggests subjective intent is a necessary component

2 The history of University Hospital is summarized on the University Health System website at https://www.universityhealthsystem.com/about-us/history.

App. 40 of the scope-of-employment analysis. Laverie v. Wetherbe, 517 S.W.3d 748, 752-53 (Tex.

2017). Rather, the Tort Claims Act focuses on “performance…of the duties of an

employee’s office or employment,” which calls for an objective assessment of whether

the employee was doing his job when he committed an alleged tort, not his state of mind

when she was doing it. TEX. CIV. PRAC. & REM. CODE § 101.001(5); Laverie, 517 S.W.3d

at 752-53. The scope-of-employment analysis involves the objective determination of a

connection between the employee's job duties and the alleged tortious conduct,

regardless of whether the employee performs negligently or is motivated by ulterior

motives or personal animus, so long as the conduct itself was pursuant to her job

responsibilities. Laverie, 517 S.W.3d at 752-53.

D. Suit against Governmental Unit

11. Having established that Dr. Stallworth’s medical care and treatment of

Robison was performed within the scope of his employment with a governmental unit, the

sole remaining question is whether Robison’s tort claim could have been brought against

the governmental unit under the Tort Claims Act. TEX. CIV. PRAC. & REM. CODE §

101.106(f); see Franka v. Velasquez, 332 S.W.3d at 381 (Tex. 2011). As noted, Plaintiff

alleges Dr. Stallworth was negligent for performing surgery on Robison that was not

medically indicated and failing to inform Robison prior to surgery of the associated risks.

Therefore, Plaintiff’s is a health care liability claim. See TEX. CIV. PRAC. & REM. CODE §

74.001(a)(13).

12. The Texas Supreme Court has held, “[A]ll tort theories alleged against a

governmental unit, whether it is sued alone or together with its employees, are assumed

to be ‘under [the Tort Claims Act]’ for purposes of section 101.106.” Mission Consol.

App. 41 Indep. School Dist. v. Garcia, 253 S.W.3d 653, 658-59 (Tex. 2008). In Mission, the Texas

Supreme Court noted, “[W]e have never interpreted ‘under this chapter’ to only

encompass tort claims for which the Tort Claims Act waives immunity.” Id. As the Texas

Supreme Court subsequently held, “a defendant is entitled to dismissal upon proof merely

that the plaintiff’s suit is (1) based on conduct within the scope of the defendant’s

employment with a governmental unit and (2) could have been brought against the

governmental unit under the Tort Claims Act. Laverie, 517 S.W.3d at 752-53. Thus, any

tort theory alleged against a governmental employee who was acting in the general

course and scope of his employment with the governmental unit at the time of the alleged

negligent conduct must be dismissed pursuant to Texas Civil Practice & Remedies Code

Section 101.106(f). Id.

13. The Texas Supreme Court made clear in Mission that in drafting Section

101.106(f), the Texas Legislature intended to shift the risk of liability and lawsuit for the

performance of governmental work from the governmental employee to the governmental

unit, so that the entity bears the risk, and not its employees. See Mission Consol. Indep.

School Dist., 253 S.W.3d 657. Therefore, Section 101.106(f) requires mandatory

dismissal of Dr. Stallworth within thirty (30) days of this filing of this motion to dismiss.

See TEX. CIV. PRAC. & REM. CODE § 101.106(f).

IV. TRADITIONAL SUMMARY JUDGMENT

14. The movant for traditional summary judgment must show (a) there is no

genuine issue of material fact; and (b) the movant is entitled to judgment as a matter of

law. TEX. R. CIV. P. 166a(c); ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 865 (Tex.

2018). The burden of proof shifts to the nonmovant after the movant has established that

App. 42 he is entitled to summary judgment as a matter of law. Chavez v. Kansas City S. Ry., 520

S.W.3d 898, 900 (Tex. 2017). Once the movant has established that he is entitled to

summary judgment as a matter of law, the nonmovant must produce summary-judgment

evidence to raise a fact issue. Amedisys, Inc. v. Kingwood Home Health Care, L.L.C.,

437 S.W.3d 507, 511 (Tex. 2014).

16. Pursuant to Rule 166(a)(d) of the Texas Rules of Civil Procedure and the

holdings expressed by the Texas Supreme Court in McConathy v. McConathy, 869

S.W.2d 341, 342 n. 2 (Tex. 1993) and Wilson v. Buford, 904 S.W.2d 628, 629 (Tex. 1995),

Dr. Stallworth intends to reply on the following discovery products not on file with the

Court:

• Exhibit “A” – Affidavit of Christian L. Stallworth, M.D. (April 14, 2021);

• Exhibit “B” – UT Health San Antonio Memorandum of Appointment; and

• Exhibit “C” – Form W-2.

17. For purposes of this motion for summary judgment, Dr. Stallworth

incorporates the foregoing paragraphs 6 through 10, above. The uncontroverted

summary-judgment evidence in this case establishes that Robison’s claims are based on

Dr. Stallworth’s conduct within the scope of his employment with a governmental unit, UT,

and could have been brought against UT. Therefore, Dr. Stallworth is immune from suit.

TEX. CIV. PRAC. & REM. CODE § 101.106(f); see Franka, 332 S.W.3d at 369; Anderson,

365 S.W.3d at 124.

18. Sovereign immunity shields a state from suit unless it expressly consents

to being sued. See Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). “A suit

against government employees in their official capacities is, in all respects, a suit against

App. 43 the State; thus employees sued in their official capacities are shielded by sovereign

immunity.” Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex.

App.—Houston [1st Dist.] 1999, pet. dism'd w.o.j.). Immunity from suit deprives a trial

court of subject-matter jurisdiction over the governmental agency, even if liability is

undisputed. Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 248 (Tex. 2002).

Therefore, Dr. Stallworth is entitled to judgment as a matter of law.

IV. CONCLUSION

19. The plain language of Texas Civil Practice & Remedies Code Section

101.106(f) mandates dismissal of claims against a governmental employee when the

employee was acting in the scope of his employment with the governmental entity at the

time of the alleged occurrence of negligence. In other words, if a governmental employee

is sued for some action performed while doing the job for which he was hired, dismissal

of the suit against the governmental employee is appropriate. Because the

uncontroverted evidence establishes that Dr. Stallworth was an employee of UT at the

time he provided medical and health care treatment to Robison, Section 101.106(f)

mandates that Dr. Stallworth is immune from Plaintiff’s suit and the claims against him

must be dismissed.

V. PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant, CHRISTIAN L.

STALLWORTH, M.D., respectfully requests that this Court grant his Motion for Summary

Judgment and to Dismiss Pursuant to Texas Civil Practice & Remedies Code § 101.106(f)

and either enter an order of dismissal or judgment that Plaintiff take nothing by way of his

App. 44 claims and causes of action against Dr. Stallworth, and for such other and further relief,

both at law and in equity, to which Defendant may show to be justly entitled.

Respectfully submitted,

/s/ Matthew M. Edwards MATTHEW M. EDWARDS State Bar No. 24032034 NICKI K. ELGIE State Bar No. 24069670 EVANS, ROWE & HOLBROOK, P.C. 10101 Reunion Place, Suite 900 San Antonio, Texas 78216 Direct Line: (210) 348-3271 Facsimile: (210) 340-6664 Email: bbrowe@evans-rowe.com Email: medwards@evans-rowe.com ATTORNEYS FOR DEFENDANT, CHRISTIAN STALLWORTH, M.D.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing pleading has been served in accordance with the Texas Rules of Civil Procedure on this 14th day of April 2021:

by eService to:

Beth S. Janicek JANICEK LAW FIRM, PC 1100 NE Loop 410, Suite 550 San Antonio, Texas 78209 Facsimile: (210) 979-6804 Email: beth@janiceklaw.com Attorneys for Plaintiff

/s/ Matthew M. Edwards MATTHEW M. EDWARDS

App. 45 App. 46 App. 47 App. 48 App. 49 App. 50 App. 51 App. 52 EXHIBIT D

App. 53 App. 54 App. 55 App. 56 App. 57 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Envelope ID: 100568837 Filing Code Description: Letter Filing Description: Letter to Court re Plea Status as of 5/8/2025 7:38 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Avishay Moshenberg 24083532 avi.moshenberg@lmbusinesslaw.com 5/7/2025 4:35:50 PM SENT

Jeff Lutz jeff.lutz@oag.texas.gov 5/7/2025 4:35:50 PM SENT

David Walsh dwalsh@katxlaw.com 5/7/2025 4:35:50 PM SENT

Kimberly Gdula Kimberly.Gdula@oag.texas.gov 5/7/2025 4:35:50 PM SENT

karel macias karel.macias@oag.texas.gov 5/7/2025 4:35:50 PM SENT

Brianna Krominga brianna.krominga@oag.texas.gov 5/7/2025 4:35:50 PM SENT

Martin Cohick martin.cohick@oag.texas.gov 5/7/2025 4:35:50 PM SENT

Patrick Todd patrick.todd@oag.texas.gov 5/7/2025 4:35:50 PM SENT

David G. Shatto david.shatto@oag.texas.gov 5/7/2025 4:35:50 PM SENT

Rob Farquharson rob.farquharson@oag.texas.gov 5/7/2025 4:35:50 PM SENT

Johnathan Stone johnathan.stone@oag.texas.gov 5/7/2025 4:35:50 PM SENT

Pauline Sisson pauline.sisson@oag.texas.gov 5/7/2025 4:35:50 PM SENT

Emily Samuels emily.samuels@oag.texas.gov 5/7/2025 4:35:50 PM SENT

Melinda Pate melinda.pate@oag.texas.gov 5/7/2025 4:35:50 PM SENT

Abby Smith abby.smith@oag.texas.gov 5/7/2025 4:35:50 PM SENT

Ian Bergstrom Ian.Bergstrom@oag.texas.gov 5/7/2025 4:35:50 PM SENT

Jackie Cooper Jackie.Cooper@cooperscully.com 5/7/2025 4:35:50 PM SENT

Cory Sutker Cory.Sutker@cooperscully.com 5/7/2025 4:35:50 PM SENT

Winston Office nonparty-patient-counsel@winston.com 5/7/2025 4:35:50 PM SENT

Delvary Turnipseed delvary.turnipseed@cooperscully.com 5/7/2025 4:35:50 PM SENT

Jervonne Newsome jnewsome@winston.com 5/7/2025 4:35:50 PM SENT

Thanh D.Nguyen tdnguyen@winston.com 5/7/2025 4:35:50 PM SENT

App. 58 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Envelope ID: 100568837 Filing Code Description: Letter Filing Description: Letter to Court re Plea Status as of 5/8/2025 7:38 AM CST

William Logan wlogan@winston.com 5/7/2025 4:35:50 PM SENT

Docket South ecf_houston@winston.com 5/7/2025 4:35:50 PM SENT

Jonathan Hung JOHung@winston.com 5/7/2025 4:35:50 PM SENT

Nicholas Lawson Nick.Lawson@lmbusinesslaw.com 5/7/2025 4:35:50 PM SENT

Anika Holland AHolland@willkie.com 5/7/2025 4:35:50 PM SENT

Simona Agnolucci sagnolucci@willkie.com 5/7/2025 4:35:50 PM SENT

Barrington Dyer bdyer@willkie.com 5/7/2025 4:35:50 PM SENT

Zoe Packman zpackman@willkie.com 5/7/2025 4:35:50 PM SENT

Emma Rodriguez erodriguez@willkie.com 5/7/2025 4:35:50 PM SENT

Isabella Corbo icorbo@willkie.com 5/7/2025 4:35:50 PM SENT

Remy Carreiro rcarreiro@willkie.com 5/7/2025 4:35:50 PM SENT

Amy Pletscher amy.pletscher@oag.texas.gov 5/7/2025 4:35:50 PM SENT

App. 59 Appendix Tab 6

App. 60 App. 61 App. 62 App. 63 App. 64 Appendix Tab 7

App. 65 App. 66 App. 67 Appendix Tab 8

App. 68 Filed: 2/28/2025 12:07 PM Michael Gould District Clerk Collin County, Texas By Sarah Beasley Deputy Envelope ID: 97923613

App. 69 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Envelope ID: 97923613 Filing Code Description: Court Action-Signed Order Filing Description: ORDER DENYING DEFENDANT M. BRETT COOPER, M.D.'S MOTION TO DISMISS UNDER TEXAS RULE OF CIVIL PROCEDURE 91a Status as of 2/28/2025 1:02 PM CST

Associated Case Party: The State of Texas

David G. Shatto david.shatto@oag.texas.gov 2/28/2025 12:07:21 PM SENT

Rob Farquharson rob.farquharson@oag.texas.gov 2/28/2025 12:07:21 PM SENT

Abby Smith abby.smith@oag.texas.gov 2/28/2025 12:07:21 PM SENT

Johnathan Stone johnathan.stone@oag.texas.gov 2/28/2025 12:07:21 PM SENT

Ian Bergstrom Ian.Bergstrom@oag.texas.gov 2/28/2025 12:07:21 PM SENT

Christopher Molak christopher.molak@oag.texas.gov 2/28/2025 12:07:21 PM SENT

Amy Pletscher amy.pletscher@oag.texas.gov 2/28/2025 12:07:21 PM SENT

Associated Case Party: MBrettCooper

Avishay Moshenberg 24083532 avi.moshenberg@lmbusinesslaw.com 2/28/2025 12:07:21 PM SENT

Nicholas Lawson Nick.Lawson@lmbusinesslaw.com 2/28/2025 12:07:21 PM SENT

Jervonne Newsome jnewsome@winston.com 2/28/2025 12:07:21 PM SENT

Thanh D.Nguyen tdnguyen@winston.com 2/28/2025 12:07:21 PM SENT

William Logan wlogan@winston.com 2/28/2025 12:07:21 PM SENT

Docket South ecf_houston@winston.com 2/28/2025 12:07:21 PM SENT

Anika Holland AHolland@willkie.com 2/28/2025 12:07:21 PM SENT

Simona Agnolucci sagnolucci@willkie.com 2/28/2025 12:07:21 PM SENT

Barrington Dyer bdyer@willkie.com 2/28/2025 12:07:21 PM SENT

Zoe Packman zpackman@willkie.com 2/28/2025 12:07:21 PM SENT

App. 70 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Envelope ID: 97923613 Filing Code Description: Court Action-Signed Order Filing Description: ORDER DENYING DEFENDANT M. BRETT COOPER, M.D.'S MOTION TO DISMISS UNDER TEXAS RULE OF CIVIL PROCEDURE 91a Status as of 2/28/2025 1:02 PM CST

Emma Rodriguez erodriguez@willkie.com 2/28/2025 12:07:21 PM SENT

Isabella Corbo icorbo@willkie.com 2/28/2025 12:07:21 PM SENT

Remy Carreiro rcarreiro@willkie.com 2/28/2025 12:07:21 PM SENT

Pauline Sisson pauline.sisson@oag.texas.gov 2/28/2025 12:07:21 PM SENT

Emily Samuels emily.samuels@oag.texas.gov 2/28/2025 12:07:21 PM SENT

Melinda Pate melinda.pate@oag.texas.gov 2/28/2025 12:07:21 PM SENT

Jackie Cooper Jackie.Cooper@cooperscully.com 2/28/2025 12:07:21 PM SENT

Cory Sutker Cory.Sutker@cooperscully.com 2/28/2025 12:07:21 PM SENT

Winston Office nonparty-patient-counsel@winston.com 2/28/2025 12:07:21 PM SENT

Delvary Turnipseed delvary.turnipseed@cooperscully.com 2/28/2025 12:07:21 PM SENT

App. 71 Appendix Tab 9

App. 72 Order filed April 24, 2025.

In The

Fifteenth Court of Appeals ____________

NO. 15-25-00031-CV ____________

IN RE NONPARTY PATIENT NO. 1, NONPARTY PATIENT NO. 2, NONPARTY PATIENT NO. 3, NONPARTY PATIENT NO. 4, NONPARTY PATIENT NO. 5, NONPARTY PATIENT NO. 6, NONPARTY PATIENT NO. 7, NONPARTY PATIENT NO. 8, NONPARTY PATIENT NO. 9, NONPARTY PATIENT NO. 10, AND NONPARTY PATIENT NO. 11, Relators

ORIGINAL PROCEEDING WRIT OF MANDAMUS 493rd District Court Collin County, Texas Trial Court Cause No. 493-07676-2024

App. 73 In The

NO. 15-25-00032-CV ____________

IN RE NONPARTY PATIENT NO. 1, NONPARTY PATIENT NO. 2, NONPARTY PATIENT NO. 3, NONPARTY PATIENT NO. 4, NONPARTY PATIENT NO. 5, NONPARTY PATIENT NO. 6, NONPARTY PATIENT NO. 7, NONPARTY PATIENT NO. 8, NONPARTY PATIENT NO. 9, NONPARTY PATIENT NO. 10, AND NONPARTY PATIENT NO. 11, Relators

ORIGINAL PROCEEDING WRIT OF MANDAMUS 493rd District Court Collin County, Texas Trial Court Cause No. 493-08026-202

ORDER

On Friday, March 21, 2025, this Court stayed the trial court’s order of March 20, 2025, entered in trial court cause numbers 493-07676-2024 and 493- 08026-202, compelling Children’s Health System of Texas and UT Southwestern Medical Center (“UTSW”) to produce relators’ medical records. Relators have filed a second motion for stay on the basis that UTSW has taken the position that

App. 74 the stay applies only to Children’s and begun producing records. We grant the motion, clarify that this Court’s stay of March 21, 2025, applies equally to Children’s and UTSW, and order the State to destroy any copies of patient records that it received from UTSW if it has not already done so.

PER CURIAM

Panel consists of Chief Justice Brister and Justices Field and Farris.

App. 75 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Avi Moshenberg on behalf of Nicholas Lawson Bar No. 24083367 avi.moshenberg@lmbusinesslaw.com Envelope ID: 101137084 Filing Code Description: Original Proceeding Petition Filing Description: Relator Dr. Cooper's Petition for Writ of Mandamus Status as of 5/22/2025 7:15 AM CST

Amy Pletscher amy.pletscher@oag.texas.gov 5/21/2025 11:02:30 PM NOT SENT

Emily Samuels emily.samuels@oag.texas.gov 5/21/2025 11:02:30 PM NOT SENT

Pauline Sisson david.shatto@oag.texas.gov 5/21/2025 11:02:30 PM NOT SENT

David Shatto david.shatto@oag.texas.gov 5/21/2025 11:02:30 PM NOT SENT

Johnathan Stone johnathan.stone@oag.texas.gov 5/21/2025 11:02:30 PM NOT SENT

Rob Farquharson rob.farquharson@oag.texas.gov 5/21/2025 11:02:30 PM NOT SENT

Remy Carreiro rcarreiro@willkie.com 5/21/2025 11:02:30 PM NOT SENT

Zoe Packman zpackman@willkie.com 5/21/2025 11:02:30 PM NOT SENT

Anika Holland aholland@willkie.com 5/21/2025 11:02:30 PM NOT SENT

Dyer Barrington bdyer@willkie.com 5/21/2025 11:02:30 PM NOT SENT

Simona Agnolucci SAgnolucci@willkie.com 5/21/2025 11:02:30 PM NOT SENT

Avi Moshenberg avi.moshenberg@lmbusinesslaw.com 5/21/2025 11:02:30 PM NOT SENT

Thanh Nguyen tdnguyen@winston.com 5/21/2025 11:02:30 PM NOT SENT

Jackie Cooper jackie.cooper@cooperscully.com 5/21/2025 11:02:30 PM NOT SENT

Cory Sutker cory.sutker@cooperscully.com 5/21/2025 11:02:30 PM NOT SENT

Martin Cohick martin.cohick@oag.texas.gov 5/21/2025 11:02:30 PM NOT SENT

Patrick Todd patrick.todd@oag.texas.gov 5/21/2025 11:02:30 PM NOT SENT