15-25-00039-CV ACCEPTED 15-25-00039-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 4/7/2025 6:22 PM No. ____________ CHRISTOPHER A. PRINE CLERK
In the Court of Appeals 15th COURT FILED IN OF APPEALS
for the Fifteenth Judicial District4/7/2025 6:22:17 PM AUSTIN, TEXAS
Austin, Texas CHRISTOPHER A. PRINE Clerk
In re The State of Texas, Relator.
On Petition for Writ of Mandamus to the 95th Judicial District Court, Dallas County
PETITION FOR WRIT OF MANDAMUS
Ken Paxton Johnathan Stone Attorney General of Texas Division Chief, Consumer Protection Division Brent Webster First Assistant Attorney General Abigail E. Smith Assistant Attorney General Ralph Molina State Bar No. 24141756 Deputy First Assistant Attorney General Abby.Smith@oag.texas.gov Office of the Attorney General Austin Kinghorn Consumer Protection Division Deputy Attorney General for 12221 Merit Drive, Ste. 650 Civil Litigation Dallas, Texas 75251 Tel: (214) 290-8830 Fax: (214) 969-7615
Counsel for Relator Identity of Parties and Counsel Relator: The State of Texas
Appellate and Trial Counsel for Relator:
Abigail E. Smith Assistant Attorney General State Bar No. 24141756 Abby.Smith@oag.texas.gov Rob Farquharson Assistant Attorney General State Bar No. 24100550 Rob.Farquharson@oag.texas.gov Office of the Attorney General of Texas Consumer Protection Division 12221 Merit Drive, Ste. 650 Dallas, Texas 75251
Johnathan Stone Division Chief, Consumer Protection Division State Bar No. 24071779 Johnathan.Stone@oag.texas.gov David Shatto Assistant Attorney General State Bar No. 24104114 David.shatto@oag.texas.gov Office of the Attorney General of Texas Consumer Protection Division P.O. Box 12548 (MC-010) Austin, Texas 78711
Respondent: The Honorable Monica Purdy, 95th Judicial District Court, Dallas County
i Real Party in Interest: Nonparty Patients Nos. 1-11
Appellate and Trial Counsel Real Party in Interest
Jervonne D. Newsome Texas Bar No. 24094869 jnewsome@winston.com Thanh D. Nguyen State Bar No. 24126931 tdnguyen@winston.com Jonathan Hung State Bar No. 24143033 johung@winston.com WINSTON & STRAWN LLP 2121 N. Pearl St., 9th Floor Dallas, TX 75201 Telephone: (214) 453-6500
William M. Logan Texas Bar No. 24106214 wlogan@winston.com Evan D. Lewis edlewis@winston.com State Bar No. 24116670 Olivia A. Wogon Texas Bar No. 24137299 owogon@winston.com WINSTON & STRAWN LLP 800 Capitol Street, Suite 2400 Houston, TX 77002 Telephone: (713) 651-2600
Attorneys for Nonparty Patients
ii Patrick Todd State Bar No. 24106513 patrick.todd@oag.texas.gov
Martin Cohick State Bar No. 24134042 Martin.Cohick@oag.texas.gov Office of the Attorney General Administrative Law Division P. O. Box 12548 Austin, Texas 78711-2548 (512) 936-1660
Attorneys for Intervenor and third-party, UT Southwestern Medical Center (“UTSW”)
iii Table of Contents Page
Identity of Parties and Counsel ................................................................................. i Index of Authorities ................................................................................................ vi Record References .................................................................................................. ix Statement of the Case ............................................................................................. ix Issues Presented ....................................................................................................... x Introduction ............................................................................................................. 1 Statement of Facts ................................................................................................... 3 A. The State Sues Doctors for Violating SB 14, the Ban on Transgender Treatments for Minors, in Collin County. ...................... 3 B. The Non-party Patients Sue the State in Dallas County Court............ 4 C. The Non-party Patients Mislead the Collin County Court at Multiple Hearings; the Collin County Court Orders Production. .......................................................................................... 4 D. Non-party Patients Continue to Seek Duplicative Relief in an Alternate Venue ................................................................................... 7 E. Subsequent Procedural History Since the Dallas County Order ................................................................................................... 8 Standard of Review .................................................................................................. 9 Argument ................................................................................................................. 9 I. The Trial Court Clearly Abused Its Discretion by Denying the State’s Plea in Abatement......................................................................... 10 A. The Collin County and Dallas County suits are inherently related. ............................................................................................... 10 B. No exception to the dominant jurisdiction doctrine applies. .............. 13 II. The Dallas County Court Abused its Discretion in Issuing a Stay After the State Noticed its Appeal. ........................................................... 14 III. The State Lacks an Adequate Remedy by Appeal for Both its Plea in Abatement and Challenge to the Court’s Improper Order. ................... 15 Prayer ...................................................................................................................... 17
iv Mandamus Certification ........................................................................................ 18 Certificate of Service .............................................................................................. 18 Certificate of Compliance ...................................................................................... 18 Relator’s Appendix ................................................................................................ 23
v Index of Authorities
Page(s)
Cases
Curtis v. Gibbs, 511 S.W.2d 263 (Tex. 1974) (orig. proceeding) ................................................. 10
Encore Enterprises, Inc. v. Borderplex Realty Tr., 583 S.W.3d 713 (Tex. App. 2019)...................................................................... 12
Hiles v. Arnie & Co., 402 S.W.3d 820 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) ............................................................................................................... 13
In re Happy State Bank, No. 02-17-00453-CV, 2018 WL 1918217 (Tex. App.—Fort Worth Apr. 23, 2018, orig. proceeding) (mem. op.) ...................................................... 11
In re J.B. Hunt Transp., Inc., 492 S.W.3d 287 (Tex. 2016) ....................................................................... passim
In re Puig, 351 S.W.3d 301 (Tex. 2011) (orig. proceeding) ................................................. 10
In re Tex. Educ. Agency, 441 S.W.3d 747 (Tex. App.—Austin 2014, no pet.) ...................................... 9, 15
In re Texas Christian Univ., 571 S.W.3d 384 (Tex. App.—Dallas 2019, no pet.) ........................................... 13
In re Univ. of the Incarnate Word, 469 S.W.3d 255 (Tex. App.—San Antonio 2015, no pet.) ...................... 14, 15, 16
In re Woodfill, 470 S.W.3d 473 (Tex. 2015) ............................................................................... 15
Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203 (Tex. 1999).............................................................................. 12
vi Lee v. GST Transp. Sys., LP, 334 S.W.3d 16 (Tex. App.—Dallas 2008, pet. denied) ...................................... 13
Miles v. Ford Motor Co., 914 S.W.2d 135 (Tex. 1995) ............................................................................... 11
Perry v. Del Rio, 66 S.W.3d 239 (Tex. 2001) .......................................................................... 10, 13
Sheinfeld, Maley & Kay, P.C. v. Bellush, 61 S.W.3d 437, 439 (Tex. App.—San Antonio 2001, no pet) ......................... 9, 14
Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835 (Tex. 2007)............................................................................... 15
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ................................................................................ 9
Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247 (Tex. 1988) ....................................................................... 11
Statutes
Tex. Bus. & Comm. Code §§ 17.41-17.63 ................................................................ 1
Tex. Civ. Prac. & Rem. Code § 51.014 .......................................................... 9, 14, 16
Tex. Civ. Prac. & Rem. Code § 51.014(8) ...........................................................2, 14
Tex. Civ. Prac. & Rem. Code § 51.014(b) ................................................................ 8
Other Authorities
Tex. R. Civ. P. 39 .................................................................................................... 11
Tex. R Civ. P. 39(a) ................................................................................................ 12
Tex. R. Civ. P. 97(a) .......................................................................................... 11, 12
Tex. R. Civ. P. 176.6(e) ........................................................................................ 4, 6
Tex. R. Evid. 509 ..................................................................................................... 6
vii Tex. R. Evid. 510 ...................................................................................................... 6
viii Record References “App.” refers to the appendix to this petition. “M.R.” refers to the mandamus
record.
Statement of the Case Nature of the underlying Nonparty Patients 1–11 (“Non-party Patients”) chal- proceeding: lenged a subpoena in Dallas County Court. M.R.1. That subpoena was issued by Collin County Court in relation to an ongoing litigation instituted by relator against a doctor for violating state law.
Respondent: The Honorable Monica Purdy 95th Judicial District Court, Dallas County
Respondents’ challenged The trial court denied the State’s Plea in Abatement. After actions: also denying the State’s Plea to the Jurisdiction, the State immediately appealed, staying the case. Nevertheless, the trial court continued to order a stay in its entirety on all production obligations with respect to the State’s subpoe- nas served on Children’s Medical Center and UT South- western Medical Center (the “Hospital Systems”). App. Exs. A, B.
Statement of Jurisdiction
This Court has jurisdiction under Texas Government Code section
22.221(b)(1).
ix Issues Presented
1. Did the trial court err in denying the State’s Plea in Abatement?
2. Did the trial court err in issuing a discovery order after the case was automatically stayed?
3. Does State of Texas have an adequate remedy on appeal?
x Introduction
This case, like so many others currently pending before this Court, concerns
competing orders about the production of medical records. As this Court is by now
well aware, the State has sued two pediatricians in Collin County Court for violating
the Texas ban on providing transgender treatments to minors, and for violating the Texas Deceptive Trade Practices Act. After the State issued subpoenas for medical
records to two Dallas hospitals, Children’s Medical Center Dallas (Children’s) and
University of Texas Southwestern Medical Center (UTSW), some nonparty pa- tients whose medical records were subject to the subpoenas obtained counsel and
challenged those subpoenas in both Collin County Court and Dallas County Court.
These represented patients are the Non-party Patients that were the plaintiffs below in this case. As a result of their decision to file in multiple jurisdictions, there are now
several conflicting discovery orders from the Collin County Court and Dallas County
Court, as well as intervening orders from this Court staying production by Chil-
dren’s.
To put it bluntly, this case has become a procedural quagmire and an intense
drain on the resources and time of the parties, the interested nonparties, and all three courts. Thankfully, there is a procedure to circumvent all this headache—the doc-
trine of dominant jurisdiction, which requires that when two related cases are filed
in two different jurisdictions, the second-filed court must abate its case and defer to
the first-filed jurisdiction. See, e.g., In re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 294
(Tex. 2016) (holding “when two suits are inherently interrelated, a plea in abatement
1 in the second action must be granted”) (citation omitted) (emphasis in original). But
the Dallas County Court denied the State’s Plea in Abatement on this ground with-
out explanation, and in an abuse of discretion. Because this order is not appealable,
the State lacks an adequate appellate remedy and mandamus relief is appropriate.
But that is not the full extent of the Dallas County Court’s error. After the Court
similarly denied the State’s Plea to the Jurisdiction (which is appealable and thus is
pending before this court under a different cause number, No. 15-25-00023-CV), the State immediately filed its notice of appeal, automatically staying the case under Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(8). Yet the district court proceeded to hold a
hearing on the Non-party Patients’ Motion for Protective Order and issued a stay
barring any production of any documents pending the outcome of the State’s appeal.
This discovery order violated the automatic stay, constituted an abuse of discretion,
and similarly has no adequate remedy at law, making mandamus relief appropriate.
Both of the Dallas County Court’s March 6, 2025 orders constituted abuses of
discretion, for different reasons. This Court should grant mandamus relief, order the
Dallas County Court to abate its case pending a final resolution in Collin County
Court, and order the Court to vacate its improper stay on production.
2 Statement of Facts 1
A. The State Sues Doctors for Violating SB 14, the Ban on Transgender Treatments for Minors, in Collin County. On October 17, 2024, after an investigation, the State sued Dr. May C. Lau for
violations of SB 14, the statewide ban on providing cross-sex hormones, puberty
blockers, and so-called gender-affirming surgeries to minors. The State filed its Orig-
inal Petition and Request for Injunctive Relief in the 493rd Judicial District Court of
Collin County. MR.1. On November 4, 2024, the State filed a similar lawsuit against
a different doctor, Dr. M. Brett Cooper, also with the 493rd Judicial District Court
of Collin County. MR.37. Discovery in that case is ongoing and the court has entered a protective order to ensure privacy of the minor patients involved and their medical
records. MR.72.
On January 16, 2025, the State noticed its intent to serve non-party subpoenas on Children’s Health System of Texas (“Children’s”) and the University of Texas
Southwestern Medical Center (“UTSW”) seeking patient medical, prescribing, and
billing records relating to the claims and defenses in the ongoing suit. MR.87, 90. The State later withdrew the subpoenas for UTSW and then reissued substantially
similar subpoenas for UTSW on February 4, 2025. MR.93. For each subpoena, the
State mailed notices to all patients whose medical records were subpoenaed to notify
1 The Statement of Facts in this brief is identical in large part to the Background section in the State’s Response to Non-party Patients’ Emergency Motion to Stay Discovery Pending Interlocutory Appeal, filed in the related case No. 15-25-00023- CV, except for Section E.
3 them of the lawsuit, the subpoena, and their rights under HIPAA and the Texas
Rules of Evidence and Civil Procedure. 2
B. The Non-party Patients Sue the State in Dallas County District Court. After these notices were issued, eleven patients in the Lau case retained counsel
(“Non-party Patients”). These eleven patients were the plaintiffs below and are the real parties in interest in this matter. On February 3, 2025, the Non-party Patients
filed a petition in Dallas County seeking protection from the subpoenas issued to
Children’s and UTSW, pursuant to Tex. R. Civ. P. 176.6(e). MR.95. On February
24, 2025, the Non-party Patients also filed a motion seeking discovery protection in
the Collin County proceeding. MR.176.
C. The Non-party Patients Mislead the Collin County Court at Mul- tiple Hearings; the Collin County Court Orders Production. On February 28, 2025, the Collin County Court held a hearing, at which counsel for the Non-party Patients was a present and active participant. During the hearing,
counsel for the Non-party Patients told the Court that appropriate redactions and in
camera production of documents by the Collin County court would satisfy its privacy
concerns, and that should those requests be met, they would not oppose production.
MR.443 at 51:15–53:10. He also represented that the Dallas County court had already
“taken jurisdiction” over the subpoenas served on Children’s and UTSW. Id. at
2 For patient confidentiality and out of an overabundance of caution, the State has not attached those notices to this response but can provide redacted copies to the Court upon request.
4 74:17-19. This was incorrect: The Dallas County Court did not determine jurisdic-
tion until 10 days later. App. Ex. A (order denying the State’s Plea to the Jurisdiction,
filed March 6, 2025).
At this hearing, counsel for the Non-party Patients engaged in further discus-
sions and negotiated with the Parties to narrow the scope of requested medical, pre-
scribing, and billing records. The Collin County Court subsequently determined that
records should be released in limited sequential tranches based on the needs of the case. It then directed the parties and interested nonparties to confer on an agreeable
method of production. MR.487 at 95:23–96:07.
Despite the aforementioned representations and participation, the very next
day—February 27, 2025—the Non-party Patients filed a motion in the Collin
County Court to stay production of discovery by Children’s and UTSW pending a
ruling in the Dallas County proceedings. MR.495 (Non-party Pts.’ Ver. Exp. Mtn.
to Stay Prod. From Hosp. Sys.) at 5–6. This motion sought protection from party
discovery in a manner substantively identical to the relief sought in the Non-party
Patients’ Dallas County lawsuit: a protective order, appropriate redactions, and an
opportunity to review and segregate any proposed production for in camera review.
Id. at 11–12. Much of this relief had already been provided in Collin County, as the
Parties had already entered into a protective order on January 13, 2025 addressing
many of these concerns. MR.72. Counsel for the Non-party Patients also noticed a
hearing for March 12, 2025 in Dallas County, seeking a final judgment in the 95th
District Court of Dallas County. MR.566.
5 On February 28, 2025, the Collin County Court held a second hearing in the Lau
and Cooper lawsuits. Counsel for the Non-party Patients was, again, present and
participated in negotiating a document production schedule that adequately ensured
the rights and interests of all patients, including the represented Non-party Patients,
were properly protected. Counsel for the Parties, hospitals, and the Non-party Pa-
tients reached an agreement on the process for production of the first tranche of rec-
ords. The Court memorialized this agreement in its February 28, 2025 Order. MR.569
(Order to Produce Documents by March 11, Produce a Privilege Log, and Setting an
in Camera Hearing). That order and agreement limited the scope of the records to
the medical, prescribing, and billing records relating to testosterone and puberty
blockers prescribed by Drs. Lau and Cooper from January 1, 2022, through the pre-
sent. Id. To ensure the patients’ privacy rights are protected, Children’s and UTSW
would release records for the (represented) Non-party Patients to their counsel to
assert privileges and objections. Id. For unrepresented patients, their records would
be released to counsel for the physicians to assert the physician-patient privilege on
the patients’ behalf. See Tex. R. Evid. 509, 510. Records would only be produced to
the State after all patients—represented and unrepresented—had the opportunity
to mark privileged information for redaction and to produce a privilege log. Id. If re-
quested, the Collin County Court would then conduct an in-camera inspection of the
privilege assertions and set a hearing within 14 days to consider any challenges to the
privilege assertions. The parties would reconvene thereafter to discuss the scope of
a second tranche of records, if necessary.
6 The Collin County Court expressly entered this February 28 order with the goal
of providing all the relief sought by Non-party Patients in both Collin County and
Dallas County. Despite this and notwithstanding his active participation in the ne-
gotiations, counsel for the Non-party Patients refused to agree to these final terms of
discovery.
In light of all this, the Collin County Court ultimately entered its February 28
order over the objections of the Non-party Patients.
D. Non-party Patients Continue to Seek Duplicative Relief in an Al- ternate Venue Three hours after the February 28 hearing, the Non-party Patients filed an
Amended Notice of Hearing in Dallas County, moving their hearing regarding final
judgment from March 12, 2025, up to March 6. MR.573 (Nonparty Patients’ 1st Amd Ntc of Hrg (Mar. 6)). The State’s Answer was not due in the Dallas County
suit until March 17, 2025.
On March 3, 2025—without having filed an Answer—the State filed an Emer- gency Plea to the Jurisdiction and Plea in Abatement in the Dallas County suit.
MR.576. In its motion, the State asserted its sovereign immunity from suit in Dallas
County and argued that the dominant jurisdiction doctrine applies; thus, as the mat-
ter was first-filed in Collin County, the Collin County Court has dominant jurisdic-
tion and the Dallas County matter should be abated pending its resolution.
On March 6, 2025, the Dallas County hearing occurred. The Court first heard
the State’s Emergency Plea to the Jurisdiction and Plea in Abatement, which it
promptly denied. App. Ex. A. The State immediately filed a Notice of Interlocutory
7 Appeal and notified the Court that all further proceedings were stayed pursuant to
Texas Civil Practice and Remedies Code §51.014(b). App. Ex. B (memorializing this
chain of events).
Despite this, the Dallas County Court proceeded to hear argument from the
Non-party Patients concerning their Petition for Protection from Discovery Subpoe-
nas. Having been divested of the jurisdiction to do so and without any deference for
the Collin County Court’s February 28th Order regarding production of discovery,
the Dallas County Court nevertheless ordered that “any and all production obliga-
tions” with respect to the subpoenas served on the hospitals are stayed and that the
hospitals shall not produce “any” documents to the State during the pendency of the appeal. App. Ex. B.
E. Subsequent Procedural History Since the Dallas County Order Several case-related events have occurred since the Dallas County Court erro-
neously issued its two March 6, 2025 orders, in both the Collin County Court and in this Court.
On March 20, 2025, the Collin County Court granted in part and denied in part
Non-party Patients’ Motion to Stay Production from Children’s and UTSW.
MR.721–22. The Court ordered Children’s to begin production of “medical, labor-
atory, billing, and prescription records” from January 1, 2022 to the present for the
relevant patients relating to “testosterone or puberty blockers.” Id.; MR.569. This Court subsequently stayed that order based on a misleading and since disproven
claim by Non-party Patients that Children’s patient records may be commingled. See
Case No. 15-25-00031-CV.
8 On March 26, 2025, the Collin County Court extended her prior orders to
UTSW and stated that UTSW’s production obligations would “kick in now.”
MR.745 Non-party Patients sought a stay of that order before this Court in the cause
number 15-25-00031-CV; as of the filing of this brief, this Court has not ruled on that
stay motion.
Standard of Review A district court’s order denying a plea in abatement based on dominant jurisdic-
tion is reviewed for abuse of discretion. In re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 293 (Tex. 2016). “[W]hen two suits are inherently interrelated, a plea in abate-
ment in the second action must be granted,” and not doing so constitutes an abuse
of discretion. Id. at 294 (citation omitted).
A district court’s order issued after an automatic stay under section 51.014(b) of
the Civil Practice and Remedies Code is similarly reviewed for abuse of discretion.
In re Tex. Educ. Agency, 441 S.W.3d 747, 750 (Tex. App.—Austin 2014, no pet.). Be- cause “the stay set forth in section 51.014 is statutory and allows no room for discre-
tion,” any order issued once the stay is in place is an automatic abuse of discretion.
Sheinfeld, Maley & Kay, P.C. v. Bellush, 61 S.W.3d 437, 439 (Tex. App.—San Anto-
nio 2001, no pet.).
Argument Mandamus relief is available where the trial court’s error “constitute[s] a clear
abuse of discretion” and the relator lacks “an adequate remedy by appeal.” Walker
v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Both elements are met here.
9 I. The Trial Court Clearly Abused Its Discretion by Denying the State’s Plea in Abatement. As a general rule, “the court in which suit is first filed acquires dominant juris-
diction to the exclusion of other coordinate courts.” In re J.B. Hunt Transport, Inc.,
492 S.W.3d 287, 299–300 (Tex. 2016) (orig. proceeding). (quoting Curtis v. Gibbs,
511 S.W.2d 263, 267 (Tex. 1974) (orig. proceeding)). This is known as the dominant jurisdiction doctrine, or the “first-filed” rule. When two suits are inherently inter-
related, the court in which the second action was filed must grant a plea in abatement
unless an exception to the general rule applies. Id. at 294. “Filing a plea in abatement is the proper method for drawing a court’s attention to another court’s possible dom-
inant jurisdiction.” In re Puig, 351 S.W.3d 301, 305 (Tex. 2011) (orig. proceeding).
This case is a textbook example of why the dominant jurisdiction doctrine ex- ists—two competing district courts have issued conflicting discovery orders and re-
peatedly confused all parties and non-parties involved in the lawsuit. A flurry of mo-
tion practice has been the result, taxing the resources of the parties and the courts.
Because the dominant jurisdiction doctrine applies and the Non-party Patients failed
to demonstrate the existence of an exception, the Dallas County Court abused its
discretion in denying the State’s Plea in Abatement.
A. The Collin County and Dallas County suits are inherently related. Generally, a plea in abatement must be granted when an “when cases involving
the same subject matter are brought in different courts.” Perry v. Del Rio, 66 S.W.3d
239, 252 (Tex. 2001). Abatement of a suit due to the pendency of a prior suit is based on the principles of comity, convenience, and the necessity for an orderly procedure
10 in the trial of contested issues. Miles v. Ford Motor Co., 914 S.W.2d 135, 138 (Tex.
1995). All are present here.
The first question to address in the dominant-jurisdiction analysis is whether
there is an “inherent interrelation of the subject matter . . . in two pending lawsuits.”
J.B. Hunt (quoting Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247 (Tex. 1988)).
In this case, that interrelation is between the first-filed suit in the 493rd District
Court in Collin County and the second-filed suit in the 95th District Court in Dallas County. If that inherent interrelation exists, then dominant jurisdiction applies and,
absent an exception, the second-filed suit must be abated. J.B. Hunt, 492 S.W.3d at
292; see also In re Happy State Bank, No. 02-17-00453-CV, 2018 WL 1918217, at *7
(Tex. App.—Fort Worth Apr. 23, 2018, orig. proceeding) (mem. op.). If not, then
both suits may proceed. See, e.g., J.B. Hunt, 492 S.W.3d at 292; Happy State Bank,
2018 WL 1918217, at *4.
In determining whether the suits are inherently interrelated, courts are guided
by the compulsory counterclaim rule, Tex. R. Civ. P. 97(a), and joinder of a party
rule, Tex. R. Civ. P. 39. Wyatt, 760 S.W.2d at 247; J.B. Hunt, 492 S.W.3d at 292.
The Collin County and Dallas County proceedings are clearly, inherently inter-
related, and it was an abuse of discretion to find otherwise. A counterclaim is com-
pulsory if it meets the following six characteristics: (1) it is within the jurisdiction of
the court; (2) it is not at the time of the filing of the answer the subject of a pending
action; (3) the action is mature and owned by the defendant at the time of filing the
answer; (4) it arises out of the transaction or occurrence that is the subject matter of
the opposing party’s claim; (5) it is against an opposing party in the same capacity;
11 and (6) it does not require for its adjudication the presence of third parties over
whom the court cannot acquire jurisdiction. See Tex. R. Civ. P. 97(a); see also Inger-
soll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 207 (Tex. 1999). There is no
dispute that these conditions exist in the Collin County proceeding. The subpoenas
issued to Children’s and UTSW arise from, and are related to, the claims and de-
fenses in the first-filed suit pending in Collin County.
The Collin County and Dallas County suits are, moreover, inherently interre- lated due to the substantial (and realized) risk of conflicting rulings creating “incon-
sistent obligations” for the parties, Children’s, and UTSW. Encore Enterprises, Inc.
v. Borderplex Realty Tr., 583 S.W.3d 713, 724 (Tex. App. 2019) (applying Rule 39(a)
in a dominant jurisdiction analysis). The Collin County Court had already directed
Children’s and UTSW to produce documents prior to the Dallas County Court’s
ruling, and it has additionally ordered production since that ruling (albeit subject to
a stay from this court, in the case of Children’s). MR.721–22, 745. The Dallas
County Court’s ruling that Children’s and UTSW did not have to produce records,
after being directed to do so by the Collin County District Court, has already “in-
consistent obligations” that have led confusion for the hospitals and a flurry of mo-
tion practice in both Collin County and this Court.
Finally, abatement is in the interest of justice. The relief sought by the Non-party
Patients in the Dallas County suit is to have the opportunity to assert privileges be-
fore records are produced to the State. That is exactly the relief they were granted in
the Collin County proceeding. MR.569–70. That counsel for the represented pa-
tients continues to pursue a suit in Dallas County after they already obtained the
12 relief sought in Collin County demonstrates bad faith, wastes judicial resources, and
unnecessarily drives up litigation costs.
B. No exception to the dominant jurisdiction doctrine applies. No exceptions to the dominant jurisdiction doctrine apply to this case. Excep-
tions to this “first-filed” rule apply only when its justifications fail, such as when the first district court does not have the full matter before it, when conferring dominant
jurisdiction on the first court will delay or prevent a prompt and full adjudication, or
“when the race to the courthouse was unfairly run.” Perry, 66 S.W.3d at 252. With
regard to this third exception, a race to the courthouse by itself is not disqualifying.
In re Texas Christian Univ., 571 S.W.3d 384, 392 (Tex. App.—Dallas 2019, no pet.).
Indeed, one of the justifications for the first-filed rule is “simple fairness: in a race to the courthouse, the winner’s suit should have dominant jurisdiction.” In re J.B.
Hunt Transport, Inc., 492 S.W.3d at 296 (citing Perry, 66 S.W.3d at 252); Lee v. GST
Transp. Sys., LP, 334 S.W.3d 16, 18 (Tex. App.—Dallas 2008, pet. denied). Rather, a plaintiff who first filed the suit may only be estopped from asserting the dominant
jurisdiction of the first court if he is found guilty of inequitable conduct. Hiles v. Arnie
& Co., 402 S.W.3d 820, 825–26 (Tex. App.—Houston [14th Dist.] 2013, pet. de- nied).
None of these apply here. The Collin County Court has the full matter before
it—indeed, the bulk of all motions filed and hearings held in that matter over the past
two months have concerned challenges to production by the Non-party Patients. Al-
lowing the Collin County Court to exercise dominant jurisdiction will not delay full
adjudication, because all the issues before the Dallas County Court have already been
13 adjudicated in full by the Collin County Court. To the contrary, it is this concurrent
proceeding in the Dallas County Court that has delayed adjudication of these issues
in Collin County. And finally, there has been no accusation of a race to the court-
house. The State filed its lawsuit against Dr. Lau in October 2024, several months
prior to Non-party Patients filing this subpoena challenge in Dallas County.
Because no exception applies and the Collin County case is first filed, the domi-
nant jurisdiction doctrine clearly applies. It was an abuse of discretion not to grant the State’s Plea in Abatement on this basis.
II. The Dallas County Court Abused its Discretion in Issuing a Stay After the State Noticed its Appeal. It is undisputed that after the Dallas County Court denied the State’s Plea to the
Jurisdiction, the State filed its Notice of Appeal immediately pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 51.014(8) and informed the court that the case was auto-
matically stayed. App. Ex. B. Nevertheless, the court proceeded to issue an order
staying “any and all production obligations with respect to the State’s subpoenas served on [Children’s] and [UTSW] . . . in their entirety.” Id. The court further or-
dered that the hospitals “shall not produce any documents to the State until the in-
terlocutory appeal reaches a final resolution.” Id. That was a clear abuse of discretion. “The stay set forth in section 51.014 is stat-
utory and allows no room for discretion.” Sheinfeld, Maley & Kay, P.C. v. Bellush, 61
S.W.3d 437, 439 (Tex. App.—San Antonio 2001, no pet.). “The trial court abuses
its discretion in conducting hearings and signing orders in violation of the automatic
stay of ‘all other proceedings in the trial court.’” In re Univ. of the Incarnate Word,
14 469 S.W.3d 255, 259 (Tex. App.—San Antonio 2015, no pet.) (quoting In re Tex.
Educ. Agency, 441 S.W.3d 747, 750 (Tex. App.—Austin 2014, no pet.)). It is undis-
puted that “the challenged order was signed after [the State’s] notice of interlocu-
tory appeal,” Incarnate Word, 469 S.W.3d at 259—indeed, the Dallas County
Court’s own order memorializes this fact. App. Ex. B (“While [the argument on the
Nonparty Patients’ Petition for a Motion for a Protect Order] unfolded, the State
represented that it had filed an interlocutory appeal . . . .”). The trial court’s order staying production was thus “an abuse of the trial court’s discretion because it was
entered in violation of the automatic stay.” Incarnate Word, 469 S.W.3d at 259.
III. The State Lacks an Adequate Remedy by Appeal for Both its Plea in Abatement and Challenge to the Court’s Improper Order. The State has shown it qualifies for mandamus relief regarding both the denial of its plea in abatement and its challenge to the Dallas County Court’s order staying
production because neither order is a final judgment, and no statute provides for in-
terlocutory appeal. When the ordinary appellate process cannot afford timely relief,
and relator has shown an abuse of discretion, mandamus is proper. See In re Woodfill,
470 S.W.3d 473, 480-81 (Tex. 2015) (per curiam). A party can only appeal final judg-
ments and certain interlocutory orders specifically authorized by statute. Tex. A&M
Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840-41 (Tex. 2007).
Regarding the plea in abatement, the court’s order denying it was not a final
judgment. And unlike the State’s plea to the jurisdiction, denied in the same order, no statute permits an interlocutory appeal from a plea in abatement. The Supreme
Court of Texas has therefore held that “a relator need only establish a trial court’s
15 abuse of discretion to demonstrate entitlement to mandamus relief with regard to a
plea in abatement in a dominant-jurisdiction case.” J.B. Hunt, 492 S.W.3d at 299–
300. That has been shown here.
Similarly, Texas courts have uniformly held that a challenged order issued after
a section 51.014 automatic stay “is not an appealable interlocutory order,” and that
the right to a stay, “once violated, cannot be recovered by appeal.” Incarnate Word,
469 S.W.3d at 259. There is therefore “no adequate remedy at law” and mandamus relief is appropriate when an abuse of discretion has been shown. Id.
16 Prayer The Court should grant the petition for a writ of mandamus and reverse the trial
court’s Order denying the State’s Plea in Abatement, and should vacate the trial
court’s order staying in their entirety on all production obligations with respect to
the State’s subpoenas served on Children’s Medical Center and UT Southwestern
Medical Center.
Respectfully Submitted,
Ken Paxton Johnathan Stone Attorney General of Texas Division Chief, Consumer Protection Division Brent Webster First Assistant Attorney General /s/ Abigail E. Smith Ralph Molina Abigail E. Smith Deputy First Assistant Attorney General Assistant Attorney General State Bar No. 24141756 Austin Kinghorn abby.smith@oag.texas.gov Deputy Attorney General for Office of the Attorney General Civil Litigation Consumer Protection Division 12221 Merit Drive, Ste. 650 Dallas, Texas 75251 Tel: (214) 290-8830 Fax: (214) 969-7615
Counsel for Relator
17 Mandamus Certification Pursuant to Texas Rule of Appellate Procedure 52.3(j), I certify that I have re-
viewed this petition and that every factual statement in the petition is supported by
competent evidence included in the appendix or record. Pursuant to Rule
52.3(k)(1)(A), I certify that the copy of the order complained of contained in the ap- pendix is a true and correct copy. /s/ Abigail E. Smith Abigail E. Smith
Certificate of Service On April 7, 2025, this document was served electronically on counsel for Real
Party in Interest Non-party Patients.
/s/ Abigail E. Smith Abigail E. Smith
Certificate of Compliance Microsoft Word reports that this brief contains 4,245 words, excluding the por-
tions of the brief exempted by Rule 9.4(i)(1).
/s/ Abigail E. Smith Abigail E. Smith
18 No. ____________
In the Court of Appeals for the Fifteenth Judicial District Austin, Texas In re The State of Texas, Relator.
On Petition for Writ of Mandamus to the 95th Judicial District Court, Dallas County
RELATOR’S APPENDIX
Tab 1. Order Denying the State’s Plea to the Jurisdiction and Plea in Abatement .............................................................................A
2. Order (staying all production obligations in their entirety) ............... B
19 Appendix A Cause No. DC—25-01823 Nonparty Patient No. 1, Nonparty Patient No. 2, Nonparty Patient N0. 3, Nonparty Patient No. 4, IN THE DISTRICT COURT OF Nonparty Patient N_o. 5, Nonparty Patient No. 6, DALLAS COUNTY, TEXAS Nonparty Patient No. 7, Nonparty Patient No. 8, 95TH JUDICIAL DISTRICT Nonparty Patient N0. 9, Nonparty Patient No. 10, and Nonparty Patient No. 1 l,
Plaintifis,
vs.
The State of Texas,
Defendant.
@ {'PRQPGSED} ORDER DENYING THE STATE’S PLEA TO THE JURISDICTION AND PLEA IN ABATEMENT Pending before the Court is the State’s plea to the jurisdiction of this Court and plea in
abatement. Having considered the pleadings, record evidence, and the parties’ arguments, the
Court'fmds that the State’s pleas are hereby DENIED.
So ORDERED and SIGNED this Blkday OWZOZS;
The Hon. Judge Monica‘ Purdy 95th Judicial District Court Dallas County, Texas Appendix B Cause No. DC-25-01823
'Nonparty Patient No. 1, Nonparty Patient No. 2, Nonparty Patient No. 3, Nonparty Patient No. 4, IN THE DISTRICT COURT OF Nonparty Patient No. 5, :Nonparty Patient No. 6, DALLAS COUNTY, TEXAS Nonparty Patient No. 7, Nonparty Patient No. 8, 95TH JUDICIAL DISTRICT Nonparty Patient No. 9, Nonparty Patient No. 10, and Nonparty Patient No. 1 1,
Plaintifi's,
vs.
The State of Texas,
Defendant.
{Paar-95m ORDER After the Court denied the State of Texas’s Verified Emergency Plea to the Jurisdiction
and-Plea in Abatement, the Court heard argument on the Nonparty Patients’ Petition for a Motion
for a Protective Order during the same hearing.
While that argument unfolded, the State represented that it had filed an interlocutory appeal
challenging the Court’s ruling on jurisdiction and abatement. In light of this development: the
C'ourt- hereby ORDERS that any and all production obligations with respect to the State’s
subpoenas served on Children’s Medical Center and UT Southwestern Medical Center (the
“Hospital Systems”) are hereby STAYED in their entirety. The Hospital Systems shall not produce
any documents to the State until the interlocutory appeal reaches a final resolution. W (a, 2025. -
Hon. Monica CWPurdy 95th Judicial istrict Court Dallas County, Texas 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.
Pauline Sisson on behalf of Abigail Smith Bar No. 24141756 pauline.sisson@oag.texas.gov Envelope ID: 99381669 Filing Code Description: Original Proceeding Petition Filing Description: 20250407 Relator SOTs Petition for Mandamus with Appx A to B Status as of 4/8/2025 7:12 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Patrick Todd patrick.todd@oag.texas.gov 4/7/2025 6:22:17 PM SENT
Martin Cohick 24134042 martin.cohick@oag.texas.gov 4/7/2025 6:22:17 PM SENT
Pauline Sisson pauline.sisson@oag.texas.gov 4/7/2025 6:22:17 PM SENT
Emily Samuels emily.samuels@oag.texas.gov 4/7/2025 6:22:17 PM SENT
Melinda Pate melinda.pate@oag.texas.gov 4/7/2025 6:22:17 PM SENT
Johnathan Stone johnathan.stone@oag.texas.gov 4/7/2025 6:22:17 PM SENT
Rob Farquharson rob.farquharson@oag.texas.gov 4/7/2025 6:22:17 PM SENT
David G. Shatto david.shatto@oag.texas.gov 4/7/2025 6:22:17 PM SENT
Abby Smith abby.smith@oag.texas.gov 4/7/2025 6:22:17 PM SENT
Jervonne Newsome 24094869 jnewsome@winston.com 4/7/2025 6:22:17 PM SENT
Thanh Nguyen tdnguyen@winston.com 4/7/2025 6:22:17 PM SENT
Jonathan Hung 24143033 johung@winston.com 4/7/2025 6:22:17 PM SENT
William Logan 24106214 wlogan@winston.com 4/7/2025 6:22:17 PM SENT
Evan Lewis 24116670 edlewis@winston.com 4/7/2025 6:22:17 PM SENT
Olivia Wogon owogon@winston.com 4/7/2025 6:22:17 PM SENT
Karin Alonzo kalonzo@dallascourts.org 4/7/2025 6:22:17 PM SENT