In Re Novartis Pharmaceuticals Corporation v. the State of Texas

Opinion

ACCEPTED 15-25-00207-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 11/21/2025 4:39 PM No. 15-25-00207-CV CHRISTOPHER A. PRINE CLERK

In the RECEIVED IN 15th COURT OF APPEALS AUSTIN, TEXAS Fifteenth Court of Appeals 11/21/2025 4:39:23 PM ________________ CHRISTOPHER A. PRINE Clerk IN RE NOVARTIS PHARMACEUTICALS CORPORATION, Relator. ________________

Original Proceeding from the 71st Judicial District Court in Harrison County, Texas Trial Court Cause No. 23-0276 The Honorable Brad Morin Presiding ________________

BRIEF OF AMICUS CURIAE U.S. CHAMBER OF COMMERCE IN SUPPORT OF PETITIONER ________________

LINDSEY COHAN STEVEN A. ENGEL DECHERT LLP (Pro Hac Vice Application Pending) 515 Congress Ave. MICHAEL H. MCGINLEY Suite 1400 (Pro Hac Vice Application Pending) Austin, TX 78701 DECHERT LLP 1900 K Street, NW Washington, DC 20006 (202) 261-3369 steven.engel@dechert.com

November 21, 2025

i IDENTITY OF PARTIES, AMICUS CURIAE, AND COUNSEL

The parties and their counsel are identified in the Petition for Writ

of Mandamus. This amicus curiae brief is written on behalf of Amicus

Curiae the Chamber of Commerce of the United States of America

(“Chamber”). The Chamber is a nonprofit, tax-exempt organization

incorporated in the District of Columbia. The Chamber has no parent

corporation, and no publicly held company has 10% or greater ownership

in the Chamber.

The Chamber is represented by the following counsel:

Lindsey Cohan DECHERT LLP 515 Congress Ave. Suite 1400 Austin, TX 78701

Steven A. Engel (Pro Hac Vice Application Pending) Michael H. McGinley (Pro Hac Vice Application Pending) DECHERT LLP 1900 K Street, NW Washington, DC 20006 (202) 261-3369 steven.engel@dechert.com

i TABLE OF CONTENTS INTEREST OF AMICUS CURIAE ........................................................... 1 INTRODUCTION ...................................................................................... 3 ARGUMENT ............................................................................................. 6 I. The Separation of Powers Is Fundamental to Both the Texas and United States Constitutions. ......................................................... 6 A. The Texas Constitution Makes Clear that the Separation of Powers Safeguards Liberty......................................................... 6 B. The Separation of Powers Under the Texas Constitution Derives from the U.S. Constitution. ........................................... 9 C. Courts Have Long Recognized that the U.S. Constitution’s Separation of Powers Vests All Executive Power in a Politically Accountable Executive. ............................................................. 12 II. The Texas Constitution Vests the Attorney General and County Attorneys with the Authority of the State. ................................. 14 III. The TMFPA’s Qui Tam Provisions Violate the Texas Constitution. ................................................................................ 17 A. The TMFPA Violates the Separation-of-Powers Principles Enshrined in Article II, Section 1; Article IV, Section 22; and Article V, Section 21. ................................................................ 17 B. Federal Caselaw Reinforces the Conclusion that the TMFPA Is Unconstitutional. ...................................................................... 19 C. History Cannot Salvage the Texas Qui Tam Provisions’ Affront to the Separation of Powers. ..................................................... 23 PRAYER .................................................................................................. 29 CERTIFICATE OF SERVICE................................................................... 1 CERTIFICATE OF COMPLIANCE .......................................................... 2

i TABLE OF AUTHORITIES Page(s) CASES

Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958 (Tex. 1999) ................................................................ 16

Allen v. Fisher, 9 S.W.2d 731 (Tex. 1928) .................................................................... 15

Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex. Crim. App. 1990) (en banc) ........................... 7, 8

Chisholm v. Bewley Mills, 287 S.W.2d 943 (Tex. 1956) ................................................................ 16

Cochise Consultancy, Inc. v. United States ex rel. Hunt, 587 U.S. 262 (2019) ............................................................................. 21

Dao v. Trinh, 2024 WL 2069933 (Tex. Ct. App. May 9, 2024).................................. 18

Dep’t of Transp. v. Ass’n of Am. R.R., 575 U.S. 43 (2015) ........................................................................ 12, 13

El Paso Elec. Co. v. Tex. Dep’t of Ins., 937 S.W.2d 432 (Tex. 1996) .......................................................... 17, 19

Ex parte Davis, 957 S.W.2d 9 (Tex. Crim. App. 1997) (en banc) ................................. 20

Fin. Comm’n of Texas v. Norwood, 418 S.W.3d 566 (Tex. 2013) .................................................................. 3

Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477 (2010) ....................................................................... 12, 13

Garcia v. City of Willis, 593 S.W.3d 201 (Tex. 2019) .................................................................. 7

ii Image API, LLC v. Young, 691 S.W.3d 831 (Tex. 2024) ................................................................ 16

In re Abbott, 628 S.W.3d 288 (Tex. 2021) ................................................................ 20

In re Allcat Claims Serv., L.P., 356 S.W.3d 455 (Tex. 2011) ......................................................... 14, 16

In re Dallas Cnty., 697 S.W.3d 142 (Tex. 2024) ................................................................ 28

In re Novartis Pharms. Corp., ___ S.W.3d ___, 2025 WL 2989490 (Tex. 2025) ........................ 6, 18, 23

Johnson ex rel. MAII Holdings, Inc. v. Jackson Walker, L.L.P., 247 S.W.3d 765 (Tex. Ct. App. 2008) .................................................... 7

Jones v. State, 803 S.W.2d 712 (Tex. Crim. App. 1992) (en banc) ............................... 8

Kinney v. Barnes, 443 S.W.3d 87 (Tex. 2014) .............................................................. 5, 20

Lucia v. Sec. Exch. Comm’n, 585 U.S. 237 (2018) ............................................................................. 28

Marsh v. Chambers, 463 U.S. 783 (1983) ............................................................................. 28

Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816) ............................................................ 13

Michaelis v. Rollins, 1999 WL 33748054 (Tex. App. May 6, 1999)...................................... 16

Mosley v. Texas Health & Hum. Servs. Comm’n, 593 S.W.3d 250 (Tex. 2019) ................................................................ 20

Murphy v. Smith, 583 U.S. 220 (2018) ............................................................................. 16

iii N.Y. Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022) ................................................................................. 27

Pidgeon v. Turner, 538 S.W.3d 73 (Tex. 2017) .............................................................. 5, 20

Robertson v. United States ex rel. Watson, 560 U.S. 272 (2010) ............................................................................ 11

Satterfield v. Crown Cork & Seal Co., 268 S.W.3d 190 (Tex. Ct. App. 2008) .................................................. 21

Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197 (2020) ....................................................................... 12, 21

State ex rel. Downs v. Harney, 164 S.W.2d 55 (Tex. Civ. App. 1942) .................................................. 17

State ex rel. Durden v. Shahan, 658 S.W.3d 300 (Tex. 2022) (per curiam) ........................................... 15

State ex rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994) ............................................. 16

State v. Rhine, 297 S.W.3d 301 (Tex. Crim. App. 2009) ............................................ 14

State v. Stephens, 663 S.W.3d 45 (Tex. Crim. App. 2021) ......................................... 14, 15

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) ................................................................ 18

Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454 (Tex. 1997) .................................................................. 8

Tex. Dep’t of Transp. v. T. Brown Constructors, Inc., 947 S.W.2d 655 (Tex. Ct. App. 1997) .................................................... 6

United States ex rel. Gentry v. Encompass Health Rehab. Hosp. of Pearland, L.L.C., ___ F.4th ___, 2025 WL 3063921 (5th Cir. 2025) ................................ 5

iv United States ex rel. Atkins v. McInteer, 470 F.3d 1350 (11th Cir. 2006) ........................................................... 24

United States ex rel. Montcrief v. Peripheral Vascular Assocs., P.A., 133 F.4th 395 (5th Cir. 2025) .............................................................. 5

United States ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419 (2023) (Thomas, J., dissenting)..................... 4, 13, 22, 23

United States ex rel. Zafirov v. Florida Medical Associates, LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024) ..................................... 5, 22, 28

United States v. Rahimi, 602 U.S. 680 (2024) ............................................................................ 27

Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000) ............................................................................. 25

Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010) ................................................................ 20

Walz v. Tax Comm’n of City of New York, 397 U.S. 664 (1970) ............................................................................. 28

Wis. Bell, Inc. v. United States ex rel. Heath, 145 S. Ct. 498 (2025) ........................................................................... 22

CONSTITUTIONS

Tex. Const. art. II, § 1 ........................................................... 3, 6, 7, 14, 19

Tex. Const. art. XVII ............................................................................... 19

Texas Rule of Appellate Procedure 9.4(i).................................................. 2

U.S. Const. art. II, § 1, cl. 1 ......................................................... 12, 13, 22

U.S. Const. art. II, § 2, cl. 2 ..................................................................... 22

STATUTES

Tex. Hum. Res. Code § 36.101(a) ............................................................ 17

v Tex. Hum. Res. Code § 36.101(b) ............................................................ 18

Tex. Hum. Res. Code § 36.104(b) ...................................................... 17, 18

Tex. Hum. Res. Code § 36.110(a-1) ......................................................... 18

Other Authorities

1 Annals of Cong. 480 (1789) (statement of James Madison) ................ 13

3 Sir Edward Coke, Institutes of the Laws of England 194 (4th ed. 1797) ...................................................................................... 27

4 William Blackstone, Commentaries on the Laws of England (1769) .......................................................................... 9, 10, 11

4 William S. Holdworth, A History of English Law (1923) .............. 26, 27

5 Matthew Bacon, A New Abridgement of the Law 798 (7th ed. 1832) .............................................................................................. 11

2007 Tex. Sess. Law Serv. Ch. 29, § 4 (S.B. 362).................................... 17

A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 114 (2012) ........................................................................ 16

Act of Aug. 4, 1790, ch. 35, §§ 55, 69, 1 Stat. 145, 173, 177 ................... 24

Act of Feb. 25, 1791, ch. 10, §§ 8, 9, 1 Stat. 191, 195–96........................ 25

Act of July 20, 1790, ch. 29, § 1, 1 Stat. 131, 131 ................................... 25

Act of July 31, 1789, ch. 5, §§ 8, 29, 38, 1 Stat. 29, 38, 45, 48 ................ 24

Act of May 31, 1790, ch. 15, § 2, 1 Stat. 124, 124–25 ............................. 25

Act of Sept. 1, 1789, ch. 11, § 21, 1 Stat. 55, 60 ...................................... 24

Act of Sept. 2, 1789, ch. 12, § 8, 1 Stat. 65, 67 ........................................ 24

Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689 (2004) .............................................................. 26

vi Baron de Montesquieu, The Spirit of the Laws 157 (A. Cohler, B. Miller, & H. Stone eds. 1989) .............................................. 9

Constitutionality of the Qui Tam Provisions of the False Claims Act, 13 Op. O.L.C. 207 (1989) ........................................................ 25, 26, 27

John Locke, Two Treatises on Civil Government 197 (George Routledge & Sons ed., 1884) ................................................................. 9

Pamela Bucy et al., States, Statutes, and Fraud: A Study of Emerging State Efforts to Combat White Collar Crime, 31 Cardozo L. Rev. 1523, 1542–43 (2010) .......................................... 23

vii INTEREST OF AMICUS CURIAE1

The Chamber of Commerce of the United States of America

(“Chamber”) is the world’s largest business federation. It represents

approximately 300,000 direct members and indirectly represents the

interests of more than 3 million companies and professional

organizations of every size, in every industry sector, and from every

region of the country. An important function of the Chamber is to

represent the interests of its members in matters before Congress, the

Executive Branch, and state and federal courts. To that end, the

Chamber regularly files amicus curiae briefs in cases, like this one, that

raise issues of concern to the business community.

The federal False Claims Act (“FCA”) and parallel state laws, such

as the Texas Medicaid Fraud Prevention Act (“TMFPA”), together affect

nearly every sector of the economy, from healthcare, defense, and

construction, to technology, education, and banking. These acts no doubt

promote the worthy goal of protecting the federal and state treasuries

1 Amicus curiae states that no counsel for any party authored this brief in whole or in part and no entity or person, aside from amicus curiae, its members, or its counsel, made any monetary contribution intended to fund the preparation or submission of this brief.

1 from fraud. But the Chamber believes that the qui tam mechanisms in

such statutes have been grossly abused, particularly over the past few

decades, during which relators have sought to exploit the extraordinary

powers granted by such mechanisms to seek private profit in cases that

do not involve genuine fraud against the federal and state governments.

The unusual qui tam device deputizes individual relators to

exercise government power and pursue litigation on behalf of the

sovereign, even when the government refuses to intervene. And that

transfer of core government power to private hands has exacted a

substantial economic toll. Companies frequently spend millions of

dollars conducting investigations, fielding discovery demands, and

engaging in motions practice—all to defend against baseless allegations

that the government has deemed unworthy of prosecution. Those

litigation costs quickly add up. As a result, even meritless cases can be

used to extract enormous settlements.

Because qui tam provisions impose costs that affect businesses

across the Nation, the Chamber has a significant interest in this case.

2 The Chamber files this amicus curiae brief to assist the Court and explain

why the TMFPA violates the Texas Constitution.2

INTRODUCTION

In 2007, Texas amended the TMFPA to include qui tam provisions.

Those added provisions violate the separation of powers under the Texas

Constitution. That foundational document guarantees that “[t]he powers

of the Government of the State of Texas shall be divided into three

distinct departments”—Legislative, Executive, and Judicial—and that

“no person, or collection of persons, being one of these departments, shall

exercise any power properly attached to either of the others, except in the

instances herein expressly permitted.” Tex. Const. art. II, § 1.

The Texans who ratified the State’s Constitution understood that

“[t]he principle of separation of powers is foundational for federal and

state governments in this country and firmly embedded in our nation’s

history.” Fin. Comm’n of Texas v. Norwood, 418 S.W.3d 566, 570 (Tex.

2013). That is so because a government of separated powers ensures that

no single institution attains political dominance over the State, and that

2 The Chamber agrees with Novartis’s argument that the relator lacks constitutional standing, but files this brief to address the separation-of-powers problems underlying the TMFPA.

3 politically accountable government officials bear responsibility for the

enforcement of the State’s law—including the TMFPA. Thus,

maintaining the separation of powers is critically important to protecting

the liberties of the People from governmental overreach.

The qui tam provisions of the TMFPA violate these core

constitutional requirements. Through those provisions, the State

legislature has wrested the enforcement power from the hands of the

government attorneys—to whom it is assigned by the Texas

Constitution—and bestowed it upon unaccountable private plaintiffs who

are free to pursue claims that state officials have declined to chase. Such

a transfer of power is unconstitutional.

The separation-of-powers principles embodied in the Texas

Constitution reflect those in the federal Constitution. And, recently,

three Justices of the U.S. Supreme Court observed that “[t]here are

substantial arguments that the qui tam device is inconsistent with

Article II” of the U.S. Constitution. United States ex rel. Polansky v. Exec.

Health Res., Inc., 599 U.S. 419, 449 (2023) (Thomas, J., dissenting); see

id. at 442 (Kavanaugh, J., joined by Barrett, J., concurring). A federal

district judge has since thoroughly considered those concerns in holding

4 that the qui tam provisions of the FCA—which the TMFPA tracks—

violate the federal Constitution. See United States ex rel. Zafirov v.

Florida Medical Associates, LLC, 751 F. Supp. 3d 1293, 1300 (M.D. Fla.

2024), appeal pending, No. 24-13581 (11th Cir. argument scheduled for

Dec. 12, 2025). Just this year, two judges on the U.S. Court of Appeals

for the Fifth Circuit have agreed. See United States ex rel. Gentry v.

Encompass Health Rehab. Hosp. of Pearland, L.L.C., ___ F.4th ___, 2025

WL 3063921, at *5 (5th Cir. 2025) (Ho, J., concurring); United States ex

rel. Montcrief v. Peripheral Vascular Assocs., P.A., 133 F.4th 395, 411 (5th

Cir. 2025) (Duncan, J., concurring).

The TMFPA’s qui tam provisions are likewise invalid under the

Texas Constitution. Indeed, the Texas Constitution even more explicitly

safeguards the separation of powers to ensure official accountability and

protect liberty. See, e.g., Kinney v. Barnes, 443 S.W.3d 87, 92 (Tex. 2014);

Pidgeon v. Turner, 538 S.W.3d 73, 83 (Tex. 2017). Just as the FCA’s qui

tam provisions contravene the separation-of-powers principles

underpinning the federal Constitution, the TMFPA’s qui tam provisions

run roughshod over those expressly protected by the Texas Constitution.

The qui tam provisions give self-appointed private citizens substantial

5 governmental power to enforce public rights that only Texas government

attorneys are authorized to enforce.

Two Justices of the Texas Supreme Court have recognized that the

“weighty issues” underlying the “constitutional concerns surrounding qui

tam litigation” are worthy of detailed consideration by this Court in

advance of their “eventual and inevitable consideration” by the high

court. See In re Novartis Pharms. Corp., ___ S.W.3d ___, 2025 WL

2989490, at *1 (Tex. 2025) (statement of Young, J., joined by Sullivan,

J.). This Court should hold the TMFPA’s qui tam provisions

unconstitutional and issue a writ of mandamus directing the dismissal of

HSG’s claims.

ARGUMENT

I. The Separation of Powers Is Fundamental to Both the Texas and United States Constitutions.

A. The Texas Constitution Makes Clear that the Separation of Powers Safeguards Liberty.

Like the federal Constitution, the Texas Constitution “expressly

preserves three distinct departments of government.” Tex. Dep’t of

Transp. v. T. Brown Constructors, Inc., 947 S.W.2d 655, 659 (Tex. Ct.

App. 1997). But the Texas Constitution’s ratifiers went even further and

adopted Article II, § 1 to explicitly ensconce the inviolability of the

6 separation of powers into the State’s foundational document. The Article

first mandates that “the Government of the State of Texas shall be

divided into three distinct departments”—the “Legislative,” “Executive,”

and “Judicial.” Tex. Const. art. II, § 1; see, e.g., Johnson ex rel. MAII

Holdings, Inc. v. Jackson Walker, L.L.P., 247 S.W.3d 765, 777 (Tex. Ct.

App. 2008). The Article then makes plain what is implied in the federal

Constitution—that “no person, or collection of persons, being of one of

these departments, shall exercise any power properly attached to either

of the others, except in the instances herein expressly permitted.” Tex.

Const. art. II, § 1. This separation of powers “reflects a belief on the part

of those who drafted and adopted [Texas’s] [C]onstitution that one of the

greatest threats to liberty is the accumulation of excessive power in a

single branch of government.” Armadillo Bail Bonds v. State, 802 S.W.2d

237, 239 (Tex. Crim. App. 1990) (en banc). And due regard for this

separation of powers mandates that “governmental authority vested in

one department of government cannot be exercised by another

department unless expressly permitted by the constitution.” Garcia v.

City of Willis, 593 S.W.3d 201, 206 (Tex. 2019) (quoting Tex. Ass’n of Bus.

v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)).

7 One branch can violate the separation-of-powers principles

embodied in Article II, § 1 without directly arrogating to itself the powers

of another branch. See Armadillo Bail Bonds, 802 S.W.2d at 239. It can

do so by “unduly interfer[ing] with another branch so that the other

branch cannot effectively exercise its constitutionally assigned powers.”

Id. (emphasis omitted); see Jones v. State, 803 S.W.2d 712, 715 (Tex.

Crim. App. 1992) (en banc). Thus, the Texas legislature might unduly

interfere with another branch’s authority by delegating that branch’s

powers to a private entity via statute. See Tex. Boll Weevil Eradication

Found., Inc. v. Lewellen, 952 S.W.2d 454, 465–75 (Tex. 1997) (holding

that “improperly delegating government authority to” a private

foundation violated the separation of powers in part because it did not

delegate executive functions to an “administrative” agency). Such a

move would not merely offend the separation of powers. “More

fundamentally, the basic concept of democratic rule under a republican

form of government is compromised when public powers are abandoned

to those who are neither elected by the People, appointed by a public

official or entity, nor employed by the government” to exercise a power

assigned to one of the branches. Id. at 469.

8 B. The Separation of Powers Under the Texas Constitution Derives from the U.S. Constitution.

The State of Texas derived its understanding of separated powers

from the U.S. Constitution, including its conception of the executive

power. Just as the authors of the Texas Constitution drew on, and

elaborated upon, the concept of executive power embodied in the U.S.

Constitution, the Texas Founders drew on, and elaborated upon, the U.S.

Founders’ understanding of separated powers, which vested the

executive power in accountable government officers. Thus, to understand

the nature of the Texas executive power, it is necessary to understand its

origin in the Anglo-American legal tradition.

The conception of centralized executive authority under the U.S.

Constitution finds roots in the influential political theory of John Locke.

As he explained, “in the state of Nature[,] every one has the executive

power of the law of Nature.” John Locke, Two Treatises on Civil

Government 197 (George Routledge & Sons ed., 1884); see also Baron de

Montesquieu, The Spirit of the Laws 157 (A. Cohler, B. Miller, & H. Stone

eds. 1989). But “when they enter into society,” individuals “give up the .

. . executive power they had in the state of Nature into the hands of the

society.” Locke, supra, at 258. That is, the people delegate their

9 executive authority to public officials, whose power is “to be directed to

no other end but the peace, safety, and public good of the people.” Id. at

259.

William Blackstone’s Commentaries reflect a similar

understanding. “In a state of society,” he reasoned, the right “to put [the

law] in execution” is “transferred from individuals to the sovereign

power,” who “alone . . . bears the sword of justice by the consent of the

whole community.” 4 William Blackstone, Commentaries on the Laws of

England 7–8 (1769). And because the public “delegate[s] all its power

and rights, with regard to the execution of the laws, to one visible

magistrate,” that officer is “the proper person to prosecute for all public

offences.” 1 Blackstone, Commentaries at 268.

Importantly, this understanding of the executive power was not

strictly limited to the prosecution of “criminal” offenses. Rather, it

extended to the pursuit of relief for all “infraction[s] of the public rights

belonging to th[e] community.” 4 Blackstone, Commentaries at 2.

Vindicating those public rights is the prerogative of the sovereign actor

whom the people have empowered to administer the laws. See id.

10 Of course, the common law recognized that if a person has

personally “suffered the damage” from a public infraction, then he might

have a concomitant right to demand redress “in his own name.” Locke,

supra, at 196. But that would not permit him to pursue relief on behalf

of the public writ large. “[N]o person” other than the official entrusted

with the executive authority “can have an action for a public nuisance, or

punish it,” unless that “private person suffers some extraordinary

damage.” 3 Blackstone, Commentaries at 219–20. Because individual

persons give up the right to exercise executive authority when they enter

society, “the law gives no private remedy for any thing but a private

wrong.” Id. at 219; see also 5 Matthew Bacon, A New Abridgement of the

Law 798 (7th ed. 1832) (explaining that “common nuisances against the

public are only punishable by a public prosecution”).

In short, the Framers understood that “[a] basic step in organizing

a civilized society” was to take the “sword” of law-enforcement actions

“out of private hands and turn it over to an organized government, acting

on behalf of all the people.” Robertson v. United States ex rel. Watson,

560 U.S. 272, 282–83 (2010) (Roberts, C.J., dissenting from the dismissal

of a writ of certiorari as improvidently granted). That is, only the public

11 office or entity vested with the executive power could vindicate public

rights.

C. Courts Have Long Recognized that the U.S. Constitution’s Separation of Powers Vests All Executive Power in a Politically Accountable Executive.

The Framers of the U.S. Constitution enshrined this understanding

in Article II’s text, which vests “[t]he executive Power” in a single

“President of the United States.” U.S. Const. art. II, § 1, cl. 1. The

Framers adopted that unitary structure to ensure that “a President

chosen by the entire Nation” would “oversee the execution of the laws.”

Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 499

(2010). And they entrusted “the President alone” with “all of” the

Nation’s executive Power in order to ensure that he would remain

accountable for all those who would act on his behalf. Seila Law LLC v.

CFPB, 591 U.S. 197, 203, 213 (2020); see Free Enter. Fund, 561 U.S. at

495–96.

Consistent with this need for accountability, the Framers did not

vest “[p]rivate entities . . . with the ‘executive Power.’” Dep’t of Transp.

v. Ass’n of Am. R.R., 575 U.S. 43, 62 (2015) (Alito, J., concurring) (quoting

U.S. Const. art. II, § 1, cl. 1). “[T]he intention of the Constitution” was

12 instead “that the first Magistrate should be responsible for the executive

department” in its entirety. 1 Annals of Cong. 480 (1789) (statement of

James Madison). To that end, the federal Constitution established a

unitary and accountable Executive who alone was charged with the

responsibility for enforcing federal law. See Free Enter. Fund, 561 U.S.

at 496–97; Ass’n of Am. R.R., 575 U.S. at 67–68 (Thomas, J., concurring

in the judgment).

More to the point, the Framers understood that the branch

entrusted with the legislative power—Congress—could not strip the

President of the executive power that the Constitution vested in that

office. After all, the Constitution created “a separate Executive Branch

coequal to the Legislature,” Polansky, 599 U.S. at 450 (Thomas, J.,

dissenting) (emphasis added), in which only the President “shall be

vested” with the executive power, U.S. Const. art. II, § 1, cl. 1. Given that

design, it is “utterly inadmissible” for Congress to attempt to vest

executive authority “in any other person” besides the President. Martin

v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 330 (1816) (Story, J.); see also

Ass’n of Am. R.R., 575 U.S. at 62 (Alito, J., concurring) (questioning the

13 propriety of “citizen suits” that might delegate “the ‘Executive power’”

(citation omitted)).

II. The Texas Constitution Vests the Attorney General and County Attorneys with the Authority of the State.

By dividing its government into three parts, the Texas Constitution

adopts the model set by the U.S. Constitution. If anything, that model is

“more aggressively enforce[d]” in Texas because, unlike the federal

Constitution, the Texas Constitution contains an “express separation of

powers provision” in Article II, Section 1. State v. Stephens, 663 S.W.3d

45, 49–50 (Tex. Crim. App. 2021); see State v. Rhine, 297 S.W.3d 301, 315

(Tex. Crim. App. 2009) (Keller, P.J., concurring). That “explicit

Separation of Powers provision—something the U.S. Constitution

lacks—prohibits not just the exercise of one branch’s powers by another

branch, but also any interference with another branch’s exercise of its own

authority.” In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 485–86 (Tex.

2011) (Willett, J., concurring in part) (footnote omitted).

Although the Texas Constitution does not have a unitary executive

like the federal government, it expressly specifies the politically

accountable officials who may exercise the executive power of the State.

Article IV, Section 22 provides that the Attorney General “shall represent

14 the State in all suits and pleas in the Supreme Court of the State . . . and

perform such other duties as may be required by law.” Similarly, Article

V, Section 21 provides that county attorneys “shall represent the State in

all cases in the District and inferior courts in their respective counties.”

Read together, these provisions confirm that the “Texas Constitution

authorizes the attorney general, county attorneys, and district attorneys

to represent the state in various cases.” State ex rel. Durden v. Shahan,

658 S.W.3d 300, 303 (Tex. 2022) (per curiam).

Article IV, Section 22 and Article V, Section 21 thus “mark the

limits of legislative authority to prescribe who shall represent the state

and control its interests in a lawsuit in the district court.” Allen v. Fisher,

9 S.W.2d 731, 732 (Tex. 1928). That is so even though Texas categorizes

the Attorney General as an executive officer and the county attorneys as

judicial officers. See Stephens, 663 S.W.3d at 54. What matters is that

the authors of the Texas Constitution entrusted specific state officers

with the fundamentally executive power to enforce the State’s laws. But

the authors nowhere authorized the legislature to transfer that power to

private citizens via a private right of action to vindicate public rights. See

15 State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 928 (Tex. Crim. App. 1994);

Michaelis v. Rollins, 1999 WL 33748054, at *1 (Tex. App. May 6, 1999).

Indeed, the text is unmistakably clear: the Texas Constitution uses

the word “shall.” This Court must “presume the language of the

Constitution was carefully selected, interpret words as they are generally

understood, and rely heavily on the literal text.” In re Allcat, 356 S.W.3d

at 466. And “the word ‘shall’ is generally construed to be mandatory.”

Chisholm v. Bewley Mills, 287 S.W.2d 943, 945 (Tex. 1956); see also, e.g.,

Image API, LLC v. Young, 691 S.W.3d 831, 841 (Tex. 2024) (“[U]sing

words like shall or must, is mandatory.”); Albertson’s, Inc. v. Sinclair, 984

S.W.2d 958, 961 (Tex. 1999) (“We generally construe the word ‘shall’ as

mandatory, unless legislative intent suggests otherwise.”); Antonin

Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts

114 (2012) (“[W]hen the word shall can reasonably be read as mandatory,

it ought to be so read”); Murphy v. Smith, 583 U.S. 220, 223 (2018) (“[T]he

word ‘shall’ usually creates a mandate, not a liberty.”).

As a result, the “shall” language of Article IV, Section 22 and Article

V, Section 21 makes clear that the Texas Constitution “vests in the

county attorney and” the attorney general alone the authority to enforce

16 Texas law in the State’s courts. State ex rel. Downs v. Harney, 164 S.W.2d

55, 58 (Tex. Civ. App. 1942). That unequivocal language means that the

Texas legislature cannot “divest these officials of their collective

constitutional authority by shifting representation to some other

attorney.” El Paso Elec. Co. v. Tex. Dep’t of Ins., 937 S.W.2d 432, 439

(Tex. 1996).

III. The TMFPA’s Qui Tam Provisions Violate the Texas Constitution.

A. The TMFPA Violates the Separation-of-Powers Principles Enshrined in Article II, Section 1; Article IV, Section 22; and Article V, Section 21.

The TMFPA provides that a “person may bring a civil action for a

violation” of the Act “for the person and for the state,” which “shall be

brought in the name of the person and of the state.” Tex. Hum. Res. Code

§ 36.101(a) (emphasis added). For the first decade after its enactment,

the TMFPA provided that the court “shall dismiss the action” if the State

declined to bring it. Id. § 36.104(b) (2005). But the Texas Legislature

amended the statute in 2007 to allow private individuals to continue

litigation without the State’s consent. See 2007 Tex. Sess. Law Serv. Ch.

29, § 4 (S.B. 362). Now, if the State declines to take over the action, “the

person bringing the action may proceed without the state’s

17 participation.” Tex. Hum. Res. Code § 36.104(b). If a private person

succeeds in her qui tam action, the defendant must pay the same civil

penalties as if the State had brought the action itself. See id. § 36.101(b).

And the private person receives a significant bounty from that penalty

award. See id. § 36.110(a-1). In other words, the TMFPA authorizes

(indeed, incentivizes) private individuals to sue on behalf of the State in

circumstances where the State attorneys specifically empowered by

Section 21 and Section 22 affirmatively decline to press the litigation.

See Novartis Pharms., ___ S.W.3d ___, 2025 WL 2989490, at *2

(statement of Young, J., joined by Sullivan, J.).

By authorizing a private person to “proceed without the state’s

participation,” Tex. Hum. Res. Code § 36.104(b), the Texas legislature

unconstitutionally devolved the State’s power to individuals who lack the

constitutional authority to exercise it. Again, that is because the Texas

Constitution exclusively empowers the Texas Attorney General and the

county attorneys with the vested duty to enforce the law and seek redress

for violations of public rights. See Dao v. Trinh, 2024 WL 2069933, at *3

(Tex. Ct. App. May 9, 2024); Texas Ass’n of Bus. v. Texas Air Control Bd.,

852 S.W.2d 440, 464 (Tex. 1993) (Doggett, J., concurring in part). The

18 Texas legislature may not “divest” those attorneys of the executive power

that the Texas Constitution assigns to them. El Paso Elec. Co, 937

S.W.2d at 439. Only Texans, through constitutional amendment, may do

so. See Tex. Const. art. XVII (amendment process).

This Court should therefore hold that the TMFPA qui tam

provisions violate Article II, Section 1, Article IV, Section 22, and Article

V, Section 21 because the Texas Legislature’s effort to give a private

party the power to pursue public litigation violates the separation-of-

powers principles enshrined in the State’s Constitution.

B. Federal Caselaw Reinforces the Conclusion that the TMFPA Is Unconstitutional.

If this Court were to find that the TMFPA qui tam provisions

violate the Texas Constitution, it would be following a path already trod

in proceedings involving the qui tam provisions of the comparable federal

False Claims Act (“FCA”). These recent federal proceedings reinforce

the conclusion that the TMFPA violates the Texas separation of powers.

The Texas Constitution reflects the same separation-of-powers

principles as the federal Constitution. See supra Part I.B. That fact has

led the courts of this State to look to federal precedent where persuasive

and helpful when interpreting the Texas Constitution’s separation of

19 powers. See In re Abbott, 628 S.W.3d 288, 296 (Tex. 2021) (“We

frequently look to federal constitutional decisions when interpreting

analogous state constitutional provisions.”); Mosley v. Texas Health &

Hum. Servs. Comm’n, 593 S.W.3d 250, 264 (Tex. 2019) (similar); Waffle

House, Inc. v. Williams, 313 S.W.3d 796, 804 (Tex. 2010) (“Texas courts

look to analogous federal law in applying the state Act.”); Kinney v.

Barnes, 443 S.W.3d 87, 92 (Tex. 2014) (“[I]n interpreting our own

constitution, we ‘should borrow from well-reasoned and persuasive

federal procedural and substantive precedent when this is deemed

helpful.’” (citation omitted)); Pidgeon v. Turner, 538 S.W.3d 73, 83 (Tex.

2017) (“[Federal] decisions, particularly those regarding federal

constitutional questions, can certainly be helpful and may be persuasive

for Texas trial courts.”).

Of course, Texas does not follow federal interpretations in lockstep.

Rather, Texas courts must give due effect where, as here, the Texas

Constitution provides for even more explicit protections than the federal

counterpart. See Ex parte Davis, 957 S.W.2d 9, 12 (Tex. Crim. App. 1997)

(en banc) (“We note initially that this Court, as well as the Texas

Supreme Court, has held that the Texas Constitution gives greater

20 protection in some instances to Texas citizens than does its federal

counterpart.”); Satterfield v. Crown Cork & Seal Co., 268 S.W.3d 190, 202

(Tex. Ct. App. 2008) (“[S]tate constitutions can, and often do, provide

additional rights for their citizens.”).

A few lower federal courts have upheld the constitutionality of the

federal FCA. But those decisions predate a line of Supreme Court

precedents over the past 20 years that have enforced the structural limits

of the federal Constitution with renewed vigor. For example, in Seila

Law, the Supreme Court held that Congress “violate[d] the separation of

powers” by creating an independent agency led by a single director

insulated from presidential removal. 591 U.S. at 205. And in Lucia v.

Securities and Exchange Commission, the Court held that administrative

law judges were “officers of the United States,” who must be appointed

in a presidentially accountable manner consistent with the

Appointments Clause of the U.S. Constitution. 585 U.S. 237, 241 (2018);

see also Cochise Consultancy, Inc. v. United States ex rel. Hunt, 587 U.S.

262, 272 (2019) (holding that a qui tam relator is not “appointed as an

officer of the United States”). In those cases and others, the Court has

21 pushed back on Congress’s attempts to diminish the President’s control

over the Executive Branch.

In light of these precedents, three Justices of the Supreme Court

recently observed that “[t]here are substantial arguments that the qui

tam device is inconsistent with Article II,” because it too strips the

President of his ability to exercise a part of the executive power of the

United States. Polansky, 599 U.S. at 449 (Thomas, J., dissenting); see

also id. at 442 (Kavanaugh, J., joined by Barrett, J., concurring); Wis.

Bell, Inc. v. United States ex rel. Heath, 145 S. Ct. 498, 515 (2025)

(Kavanaugh, J., joined by Thomas, J., concurring). Since then, a federal

court held that the FCA’s qui tam provisions violate the Appointments

Clause of the federal Constitution. See Zafirov, 751 F. Supp. 3d at 1300.

As that court correctly concluded, qui tam laws violate Article II by

stripping executive power from the executive branch and assigning it to

private actors—in contravention of the Framers’ decision to vest the

entire “executive Power” in the President and properly appointed officers

accountable before him. U.S. Const. art. II, § 1, cl. 1; see id. art. II, § 2,

cl. 2.

22 The TMPFA’s qui tam provisions likewise violate the Texas

Constitution by shifting power to pursue redress for public wrongs from

the Attorney General and county attorneys to private actors who are

unaccountable to the Texas electorate. This Court is the “proper forum

to hear the grave challenges to the Act that Novartis raises here.”

Novartis, 2025 WL 2979490, at *4. And this Court should sustain those

meritorious challenges.

C. History Cannot Salvage the Texas Qui Tam Provisions’ Affront to the Separation of Powers.

In federal court, a “primary counterargument” for upholding the

federal FCA’s qui tam provisions emphasizes the “historical pedigree of

qui tam suits.” Polansky, 599 U.S. at 450 (Thomas, J., dissenting).

Whatever purchase those arguments might have under Article II of the

U.S. Constitution, they cannot save the qui tam provisions of the TMFPA.

The TMFPA was amended to add its qui tam provisions very recently—

in 2007. The State thus cannot rely upon historical provenance to

counter the plain text of the Texas Constitution. See Pamela Bucy et al.,

States, Statutes, and Fraud: A Study of Emerging State Efforts to Combat

White Collar Crime, 31 Cardozo L. Rev. 1523, 1542–43 (2010) (noting that

23 Texas is one of many States “relatively new to the world of qui tam

litigation”).

In all events, the historical roots of federal qui tam are limited at

best, and they do not support the federal constitutionality of the FCA’s

qui tam provisions, much less the constitutionality of the TMFPA under

the Texas Constitution.

Many of the early federal qui tam enactments operated differently

than the current FCA, which allows unharmed plaintiffs to “stand[] in

the government’s shoes” and litigate on the people’s behalf. United States

ex rel. Atkins v. McInteer, 470 F.3d 1350, 1360 (11th Cir. 2006). Most of

the early statutes offered only a reward to informers for bringing a matter

to the government’s attention, without providing a cause of action to sue

on behalf of the sovereign. See, e.g., Act of July 31, 1789, ch. 5, §§ 8, 29,

38, 1 Stat. 29, 38, 45, 48 (penalties against collectors, naval officers, and

surveyors who failed to take an oath or display rate tables, with a bounty

to the informer); Act of Sept. 1, 1789, ch. 11, § 21, 1 Stat. 55, 60 (similar

for a maritime law); Act of Aug. 4, 1790, ch. 35, §§ 55, 69, 1 Stat. 145, 173,

177 (similar for a customs law); Act of Sept. 2, 1789, ch. 12, § 8, 1 Stat.

65, 67 (penalties for Treasury Department officials who violated conflict-

24 of-interest and bribery prohibitions, with a bounty to the informer); Act

of Feb. 25, 1791, ch. 10, §§ 8, 9, 1 Stat. 191, 195–96 (penalties for agents

of the United States Bank that engaged in improper trading practices,

with a bounty to the informer).

Others merely sought to redress private injuries, with only

incidental recoveries flowing to the government. See, e.g., Act of May 31,

1790, ch. 15, § 2, 1 Stat. 124, 124–25 (giving half of statutory penalty to

authors who sued for copyright infringement of their works, with other

half to the government); Act of July 20, 1790, ch. 29, § 1, 1 Stat. 131, 131

(giving, on top of damages, half of statutory penalty to seamen or

mariners deprived of pre-departure shipping contracts, with other half to

the government).

As to the few enactments that allowed informers to pursue the

sovereign’s claims, see Vt. Agency of Nat. Res. v. United States ex rel.

Stevens, 529 U.S. 765, 777 n.6 (2000), these provisions “were essentially

stop-gap measures, confined to narrow circumstances” to assist the

fledging Executive, Constitutionality of the Qui Tam Provisions of the

False Claims Act, 13 Op. O.L.C. 207, 213 (1989) (William P. Barr, Ass’t

Att’y Gen.) (“OLC Memo”). And the “transitory and aberrational” qui tam

25 device “never gained a secure foothold within our constitutional

structure.” Id. It produced “little actual litigation.” Ann Woolhandler &

Caleb Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev.

689, 728 (2004). There is “no evidence” that Congress ever “considered

the constitutional status of qui tam.” OLC Memo, supra, at 214. And,

“[w]ithin a decade, ‘the tide had turned against’ qui tam,” leading

Congress to “curtail[] its use.” Id. at 235–36 (alterations adopted)

(quoting Leonard D. White, The Federalists 417 (1956)).

Congress quickly abandoned the practice for good reason. English

history had demonstrated that qui tam is “a vexatious device that

ultimately could not be reconciled with the institutions of free and

responsible government.” OLC Memo, supra, at 235. The persons

“occupied in this branch of executive jurisprudence” did not “give

impartial efficiency to the laws,” but acted instead as “instrument[s] of

individual extortion, caprice, and tyranny.” 8 Legal Observer No. 204, at

20 (1834) (citation omitted). Informers unearthed old and forgotten

statutes “as means to gratify ill-will.” 4 William S. Holdsworth, A History

of English Law 356 (1923). They threatened enforcement suits to “levy[]

blackmail” against potential defendants. Id. And they stirred up

26 litigation simply in the hopes of recovering money. Id. These abuses led

to considerable outrage—prompting Lord Coke to denounce the

informers as “viperous vermin” who “vex and depauperize the subject” for

“malice or private ends, and never for love of justice.” 3 Sir Edward Coke,

Institutes of the Laws of England 194 (4th ed. 1797).

Decades after the Founding, Congress revived qui tam litigation by

adopting the original version of the FCA during the Civil War. But those

qui tam provisions too “fell into relative desuetude” once the Civil War

crisis receded. OLC Memo, supra, at 209. These scattered historical

episodes thus cannot excuse the manifest conflict between the FCA’s qui

tam provisions and the text, structure, and history of Article II of the

Constitution—much less justify the qui tam provisions of the TMFPA.

A few historical antecedents cannot wash away qui tam’s

constitutional shortcomings in any event. After all, “[t]he Constitution,

not history, is the supreme law.” OLC Memo, supra, at 233; see N.Y. Rifle

& Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 36 (2022) (stressing that “the

text controls” when “later history contradicts what the text says”). The

“basic principle” of constitutional interpretation is that the document

controls over “contrary historical practices,” United States v. Rahimi, 602

27 U.S. 680, 718 n.2 (2024) (Kavanaugh, J., concurring), meaning that,

“[s]tanding alone, historical patterns cannot justify contemporary

violations of constitutional guarantees,” Marsh v. Chambers, 463 U.S.

783, 790 (1983); see Zafirov, 751 F. Supp. 3d at 1317–20. That holds true

even for a historical practice that “covers our entire national existence

and indeed predates it.” Walz v. Tax Comm’n of City of New York, 397

U.S. 664, 678 (1970).

And, of course, federal historical practice could not cure infirmities

under the Texas Constitution. The “guiding principle when interpreting”

that document “is to give effect to the intent of the voters who adopted”

it. In re Dallas Cnty., 697 S.W.3d 142, 158 (Tex. 2024) (quoting Degan v.

Bd. of Trs. of Dall. Police & Fire Pension Sys., 594 S.W.3d 309, 313 (Tex.

2020)). As described above, the Texas voters who ratified the Texas

Constitution’s separation-of-powers provisions intended to give the Texas

Attorney General and the county attorneys the exclusive power to seek

remedies for public wrongs. No amount of history can alter that fact.

28 PRAYER

This Court should issue a writ of mandamus directing the district

court to dismiss HSG’s claims brought under the qui tam provisions of

the TMFPA.

Dated: November 21, 2025 Respectfully submitted,

/s/ Lindsey Cohan LINDSEY COHAN DECHERT LLP 515 Congress Ave. Suite 1400 Austin, TX 78701

Steven A. Engel (Pro Hac Vice Application Pending) Michael H. McGinley (Pro Hac Vice Application Pending) DECHERT LLP 1900 K Street, NW Washington, DC 20006

29 CERTIFICATE OF SERVICE

I certify that on November 21, 2025, a true and correct copy of the

foregoing brief has been served on counsel of record for all parties

through electronic service.

/s/ Lindsey Cohan Lindsey Cohan CERTIFICATE OF COMPLIANCE

I further certify that this brief complies with the type-volume

limitation in Texas Rule of Appellate Procedure 9.4(i) because, according

to Microsoft Word, it contains 5,684 words, excluding exempted parts.

/s/ Lindsey Cohan Lindsey Cohan 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.

Lindsey Cohan Bar No. 24083903 lindsey.cohan@dechert.com Envelope ID: 108357607 Filing Code Description: Other Brief Filing Description: Brief of Amicus Curiae U.S. Chamber of Commerce in Support of Petitioner Status as of 11/21/2025 4:49 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Deron Dacus 790553 ddacus@dacusfirm.com 11/21/2025 4:39:23 PM SENT

Jonathan Wilkerson 24050162 jonathan.wilkerson@lanierlawfirm.com 11/21/2025 4:39:23 PM SENT

Samuel Baxter 1938000 sbaxter@mckoolsmith.com 11/21/2025 4:39:23 PM SENT

Zeke DeRose 24057421 zeke.derose@lanierlawfirm.com 11/21/2025 4:39:23 PM SENT

Jennifer Truelove 24012906 jtruelove@mckoolsmith.com 11/21/2025 4:39:23 PM SENT

Alex Brown 24026964 alex.brown@lanierlawfirm.com 11/21/2025 4:39:23 PM SENT

Lynne Kurtz-Citrin 24081425 lynne.kurtz-citrin@oag.texas.gov 11/21/2025 4:39:23 PM SENT

Eric B.Halper ehalper@mckoolsmith.com 11/21/2025 4:39:23 PM SENT

Radu A. Lelutiu rlelutiu@mckoolsmith.com 11/21/2025 4:39:23 PM SENT

W. Mark Lanier WML@LanierLawFirm.com 11/21/2025 4:39:23 PM SENT

Jordan Underhill Jordan.Underhill@oag.texas.gov 11/21/2025 4:39:23 PM ERROR

Ross Galin rgalin@omm.com 11/21/2025 4:39:23 PM SENT

Meredith Garagiola mgaragiola@omm.com 11/21/2025 4:39:23 PM SENT

Anton Metlitsky ametlitsky@omm.com 11/21/2025 4:39:23 PM SENT

Danny S.Ashby dashby@omm.com 11/21/2025 4:39:23 PM SENT

Jonathan D. Bonilla Jonathan.Bonilla@oag.texas.gov 11/21/2025 4:39:23 PM ERROR

Litigation Calendar litigationcalendar@omm.com 11/21/2025 4:39:23 PM SENT