ACCEPTED 15-25-00039-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 5/2/2025 6:29 PM NO. 15-25-00039-CV CHRISTOPHER A. PRINE CLERK IN THE FIFTEENTH DISTRICT COURT OF APPEALS FOR THE STATE OFFILED TEXAS IN AT AUSTIN, TEXAS 15th COURT OF APPEALS AUSTIN, TEXAS 5/2/2025 6:29:47 PM Nonparty Patient No. 1, Nonparty Patient No. 2, Nonparty Patient No.A.3,PRINE CHRISTOPHER Nonparty Patient No. 4, Nonparty Patient No. 5, Nonparty Patient No. 6, Clerk Nonparty Patient No. 7, Nonparty Patient No. 8, Nonparty Patient No. 9, Nonparty Patient No. 10, and Nonparty Patient No. 11, Real Parties-in-Interest1
On Petition for Writ of Mandamus From the 95th District Court at Dallas County, Texas, Cause No. DC-25-01823 The Honorable Judge Monica Purdy, Presiding
RESPONSE IN OPPOSITION TO RELATOR’S PETITION FOR WRIT OF MANDAMUS
Jervonne D. Newsome (Lead Counsel) William M. Logan Texas Bar No. 24094869 Texas Bar No. 24106214 jnewsome@winston.com wlogan@winston.com Thanh D. Nguyen Evan D. Lewis Texas Bar No. 24126931 Texas Bar No. 24116670 tdnguyen@winston.com edlewis@winston.com Jonathan Hung Olivia A. Wogon Texas Bar No. 24143033 Texas Bar No. 24137299 johung@winston.com owogon@winston.com WINSTON & STRAWN LLP WINSTON & STRAWN LLP 2121 N. Pearl St., 9th Floor 800 Capitol Street, Suite 2400 Dallas, TX 75201 Houston, TX 77002 Telephone: (214) 453-6500 Telephone: (713) 651-2600
1 In describing themselves as Real “Parties” in Interest, the Nonparty Patients do not waive their contention that they are Nonparties. They simply are using the standard nomenclature for litigants participating in a mandamus proceeding. TABLE OF CONTENTS Page Statement of the Case............................................................................................... iv Record References ................................................................................................... iv Statement of Jurisdiction............................................................................................v Issues Presented .........................................................................................................v Introduction ................................................................................................................1 Background ................................................................................................................2 Standard of Review ....................................................................................................7 Argument....................................................................................................................8 I. The Trial Court Correctly Denied the State’s Plea in Abatement ........8 A. Abatement Does Not Apply to Motions for Protection Under Rule 176.6(e)....................................................................8 B. The State’s Petition Proves that Abatement Does Not Apply .........................................................................................11 II. The Trial Court’s Order Simply Memorialized the State of the Case .....................................................................................................14 III. The State has Failed to Prove it is Entitled to Mandamus Relief .......16 Conclusion and Prayer .............................................................................................16
i INDEX OF AUTHORITIES Page(s)
Cases A-Rent Test Equip. LLC v. Shermco Indus., 2024 WL 339377 (Tex. App.—Dallas Jan. 30, 2024)........................................13 City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008) ..............................................................................10 Coastal Oil & Gas Corp. v. Garza Energy Tr., 268 S.W.3d 1 (Tex. 2008)...................................................................................12 In re Creuzot, 2024 WL 4784362 (Tex. App.—Dallas Nov. 14, 2024, no pet.) ...............2, 4, 15 Encore Enters., Inc. v. Borderplex Realty Tr., 583 S.W.3d 713 (Tex. App. 2019)......................................................................13 In re Happy State Bank, 2018 WL 1918217 (Tex. App.—Fort Worth Apr. 23, 2018, orig. proceeding) .........................................................................................................13 Hiles v. Arnie & Co., 402 S.W.3d 820 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).................................................................................................................12 In re J.B. Hunt Transport, Inc., 492 S.W. 3d 287 (Tex. 2016) ...............................................................7, 8, 11, 12 Miles v. Ford Motor Co., 914 S.W.2d 135 (Tex. 1995) ..............................................................................12
Perry v. Del Rio, 66 S.W. 3d 239 (Tex. 2001)................................................................................13
In re Puig, 351 S.W.3d 301 (Tex. 2011) ..............................................................................13 In re Reed, 2007 WL 4440901 (Tex. App.—Waco Dec. 19, 2007) ...........................5, 10, 15
ii In re Tex. Christian Univ., 571 S.W.3d 384 (Tex. App.—Dallas 2019) .......................................................13
Torrington Co. v. Stutzman, 46 S.W. 3d 829 (Tex. 2000)................................................................................16
Wyatt v. Shaw Plumbing Co., 760 S.W. 2d 245 (Tex. 1988) .........................................................................7, 12
Statutes
Tex. Civ. Prac. & Rem. Code Ann. § 51.014(8)......................................................14 Other Authorities
Tex. R. Civ. P. 176.6 ........................................................................................2, 4, 15
Tex. R. Civ. P. 176.6(e) ....................................................................................passim Tex. R. Civ. P. 192.6(b) .........................................................................................1, 9 Tex. R. Evid. 509 .......................................................................................................3 Tex. R. Evid 510 ........................................................................................................3
iii STATEMENT OF THE CASE
Nature of the Case: In this case, eleven Nonparty Patients filed a Rule 176.6(e) and 192.6(a) challenge to two State- issued subpoenas that were served in Dallas County. RMR.233–35. The Nonparty Patients argued that the State’s subpoenas improperly sought records protected by the physician-patient privilege and mental health information privilege. RMR.235; see also Tex. R. Evid. 509, 510.
Trial Court: 95th Judicial District Court, Dallas County The Hon. Monica McCoy Purdy
Course of the Proceedings: After the Nonparty Patients filed their petition, RMR.233, the State filed a plea to the jurisdiction and plea in abatement, arguing (1) sovereign immunity shielded it from any Dallas County court proceeding, and (2) dominant jurisdiction precluded the Dallas County court from issuing any ruling. RMR.340.
Disposition of the Trial During a hearing, the trial court denied the State’s Court: pleas. RMR.401, 479. The court then heard argument on the Nonparty Patients’ petition for protection. RMR.479. In the middle of that proceeding, the State filed an interlocutory appeal contesting the trial court’s denial of the State’s plea to the jurisdiction. RMR.402, 426, 499, 501. The trial court then stayed all production obligations under the subpoenas. RMR.402–03, 503–04, 506, 509. This mandamus petition followed.
RECORD REFERENCES
“MR” refers to the mandamus record filed by Relator. “RMR” refers to the
supplemental mandamus record filed by Real Parties-in-Interest Nonparty Patients.
iv STATEMENT OF JURISDICTION
The Court has jurisdiction under Tex. Civ. Prac. & Rem. Code § 51.014(a)(8)
and Tex. Gov’t Code § 22.220(d)(1).
ISSUES PRESENTED
1. Does abatement apply to a nonparty’s motion for protection filed in the jurisdiction of service of a subpoena pursuant to Texas Rule of Civil Procedure 176.6(e)? 2. Did the trial court’s order staying production under the subpoenas to maintain the status quo injuriously affect the rights of the State? 3. Has the State proven an abuse of discretion by the trial court in (i) denying its Plea in Abatement as to the nonparty’s motion for protection filed in the jurisdiction of service of a subpoena pursuant to Texas Rule of Civil Procedure 176.6(e), and (ii) its issuance of a stay of production to maintain the status quo while the State’s interlocutory appeal was pending?
v INTRODUCTION
The State’s Petition for Mandamus should be denied.
First, the Court has before it a simple issue: whether abatement applies to a
nonparty’s motion for protection filed in the county of service of a subpoena
pursuant to Texas Rule of Civil Procedure 176.6(e). The answer, unsurprisingly, is
no. Instead of squarely addressing this issue, the State spends the bulk of its Petition
presenting a misleading (and at times inaccurate) summary of proceedings followed
by a conclusory and incorrect application of the law. The plain language of Rule
176.6(e) is clear: “A person commanded to appear at a deposition, hearing, or trial,
or to produce and permit inspection and copying of designated documents and
things, and any other person affected by the subpoena, may move for a protective
order under Rule 192.6(b)—before the time specified for compliance—either in the
court in which the action is pending or in a district court in the county where the
subpoena was served.” Tex. R. Civ. P. 176.6(e).2 The State’s claim that the district
court “abused its discretion by denying the State’s plea in abatement” (Pet. at 10) is
meritless and thus its Petition should be denied.
Second, the State’s argument regarding the Dallas County Court’s Order
staying production is misplaced. The Dallas County Court’s Order staying
production did not further the proceedings below; it was a simple memorialization
2 All emphasis herein is added unless otherwise noted.
1 of the state of the case when the stay went into place. Compare RMR.504–05 with
RMR.402. “Pursuant to rule 176.6, a motion to for protective order stays a request
for testimony and production of records until such time as the trial court rules on
the motion.” In re Creuzot, 2024 WL 4784362, at *4 (Tex. App.—Dallas Nov. 14,
2024, no pet.). The Nonparty Patients’ Motion for Protection in the Dallas County
Court, filed well before the State’s interlocutory appeal, is still pending. Thus, the
productions under those subpoenas were already stayed by the interlocutory appeal
as a function of the rules, and the Dallas County Court’s challenged Order granted
no further relief.
BACKGROUND
On October 17, 2024, the State sued Dr. May C. Lau in the 493rd District
Court in Collin County (“Collin County Court”). RMR.43, 77. On January 16, 2025,
the State noticed an intent to serve nonparty subpoenas on Children’s Health System
of Texas (“Children’s”) and the University of Texas Southwestern Medical Center
(“UT Southwestern Medical Center”). See RMR.22, 31. Both subpoenas were served
on January 24, 2025 in Dallas County. Id.
Invoking Tex. Civ. P. Rule 176.6(e), eight Nonparty Patients filed their
Petitions for Motion for Protection in Dallas County—the county of service—on
February 3, 2025. RMR.11. They subsequently amended their petitions twice, on
February 20 and March 3. RMR.102 (adding three Nonparty Patients); RMR.233
2 (adding two paragraphs on sovereign immunity). On February 24, 2025, the
Nonparty Patients noticed a March 12, 2025 hearing, during which the Dallas
County Court would hear argument on the Nonparty Patients’ request for protection.
MR.566–68.
The Nonparty Patients also filed a Motion for Protection from party-related
discovery (requests for admission, requests for production, and interrogatories) in
Collin County Court on February 24, 2025. RMR.359. The Nonparty Patients did so
because, as they also explained in their proposed order to the Dallas County Court,
“the materials sought are protected from disclosure under Tex. R. Evid. 509 and Tex.
R. Evid 510, and because the scopes of the requests as written are impermissibly
broad and unnecessarily encompass irrelevant subject matter, such that [they] are
not proportional to the needs of the underlying litigation.” RMR.391. The parties
and nonparties conferred on the scope of the requests in good faith over the course
of several hours across multiple days but were unable to come to an agreement.
On February 26, 2025, the Collin County Court conducted a hearing to
consider the parties’ motions about party discovery—the contested requests for
admission, requests for production, and interrogatories. MR.393. But during that
hearing, the Collin County Court took up discovery under the subpoenas on
nonparty hospital systems, despite the Nonparty Patients’ objections that those
issues were before the Dallas County Court. MR.466–67. And despite the upcoming
3 March 12, 2025 hearing in Dallas County, the Collin County Court instructed the
parties—over the Nonparty Patients’ objections—to confer on protocols and
frameworks for producing materials covered by the challenged subpoenas,
explaining that no rights or objections would be waived as any such conferences
would need to take place in either Court. MR.486–88. The Nonparty Patients
participated in the conference but maintained their objections and privilege
assertions on the challenged subpoenas. MR.489–90. Any concessions purportedly
made by the State were of its own volition, not coaxed by any actions of the Nonparty
Patients. The parties and nonparties did not reach an agreement production protocols
under the subpoena, and the Collin County Court did not hear the Nonparty Patients’
Motion for Protection from Party Discovery.
Due to the State’s persistence and the Collin County Court’s repeated
discussion of production under the challenged subpoenas, on February 27, 2025, the
Nonparty Patients filed a Motion to Stay any productions in the Collin County Court
until the Motion for Protection in the Dallas County Court was heard. MR.495.
Under Texas law, when a request for protection is filed for a subpoena, the subpoena
itself is stayed (and therefore, documents should not be produced until the Dallas
Motion for Protection is adjudicated). In re Creuzot, 2024 WL 4784362, at *4 (Tex.
App.—Dallas Nov. 14, 2024, no pet.) (“Pursuant to rule 176.6, a motion for
protective order stays a request for testimony and production of records until such
4 time as the trial court rules on the motion.”); In re Reed, 2007 WL 4440901, at *2
(Tex. App.—Waco Dec. 19, 2007) (finding an abuse of discretion where a court
ordered compliance with a subpoena, even though a motion to protect was pending
in another court). No Court has yet adjudicated the Nonparty Patients’ objections or
assertions of privileges on the subpoenas, which are presently pending in Dallas
County Court.
On February 28, 2025, the Collin County Court held a second hearing to take
up the remainder of the pending motions there. RMR.361. The Nonparty Patients
objected to any productions under the subpoenas pursuant to their Motion to Stay,
explaining that they objected to any productions thereunder because their Motion for
Protection in Dallas remained pending. Id. The Collin County Court, however, still
ordered the hospital systems to prepare productions and provide them to the Collin
County Court and Nonparty Patients before the Dallas County Court’s March 12
hearing, even though there was no pending motion regarding this discovery in Collin
County. MR.569. The Collin County Court further ordered productions for
unrepresented patients at the urging of the State, even though the State cited no
authority to show the Collin County Court could determine, for the Dallas County
Court, which portions of the subpoena should remain stayed or move forward.
RMR.592–96.
5 Given the apparent imminent threat to the Dallas County Court’s clear
jurisdiction, the Nonparty Patients asked the Dallas County Court for an earlier
hearing. RMR.361. The Nonparty Patients had informed the State that they were
planning on making this request and asked it to join. Id. The Nonparty Patients
offered to have the State’s purported plea to jurisdiction taken up at the same hearing
if it would join in the request for the expedited hearing. Id. It did not do so. Id. The
hearing in the Dallas County Court, originally scheduled for March 12, 2025, was
set for March 6, 2025. See RMR.194.
The State then filed its Emergency Plea to the Jurisdiction and Plea in
Abatement to the Dallas County Court on March 3, 2025. MR.576. Relevant here is
the State’s Plea in Abatement.3 At the March 6 hearing, the trial court denied the
State’s Plea in Abatement, which advanced the same arguments presented in its
Petition here. See RMR.401, 479.
Following this oral order, and in the middle of the hearing on March 6, the
State filed an interlocutory appeal as to the denial of its Plea to the Jurisdiction and
asserted that such appeal automatically stayed the proceedings. See RMR.402, 499.
Consistent with such a stay, the trial court entered an order memorializing that the
hospitals’ production obligations under the subpoenas are stayed while the motion
3 The State’s interlocutory appeal of the denial of its Plea to the Jurisdiction has been separately briefed in Cause No. 15-25-00031-CV, for which oral argument has been consolidated with the present matter.
6 for protection is pending. RMR.402–03; RMR.503–04, 506, 509; see also RMR.429
(explaining why the trial court’s stay comported with the law).4
Despite the compulsory stay of the subpoenas, and the Dallas County Court’s
Order memorializing that stay, the Collin County Court issued orders compelling
production from Children’s and UTSW on March 20, 2025 and March 26, 2025,
respectively. MR.722, 725–26 (March 20); MR. 745 (March 26). This Court then
stayed production under these orders on March 21, 2025, and April 24, 2025,
respectively.5 RMR.605–10.
STANDARD OF REVIEW
In considering mandamus relief as to the denial of a plea in abatement, the
reviewing court must “begin [its] analysis by asking whether [it] must reach the
dominant jurisdiction question,” which “only arises ‘when an inherent interrelation
of the subject matter exists in two pending lawsuits.’” In re J.B. Hunt Transport,
Inc., 492 S.W. 3d 287, 292 (Tex. 2016) (quoting Wyatt v. Shaw Plumbing Co., 760
S.W. 2d 245, 247 (Tex. 1988)). “If such an inherent interrelationship exists, [the
court] then assess[es] dominant jurisdiction. But if not, then dominant jurisdiction is
4 As the State’s Petition notes, there are two trial court proceedings involving another physician, Dr. M. Brett Cooper, and three related appellate proceedings. Pet. at 3-6. Although the legal issues in those matters share some overlap with this appeal, for the sake of brevity and clarity, the Nonparty Patients omit them from their discussion. 5 Cause No. 15-25-00031-CV.
7 not an issue, and both suits may proceed.” Id. Only if there is a finding that another
trial court has dominant jurisdiction does the reviewing court proceed to the second
step, determining “whether the trial court abused its discretion in denying the plea
in abatement.” See id. Only if the trial court did abuse its discretion does the
reviewing court proceed to the third step, determining whether realtor “is entitled to
mandamus relief.” See id.
ARGUMENT
The State’s Petition for Mandamus should be denied.
I. The Trial Court Correctly Denied the State’s Plea in Abatement
The State’s Petition for Mandamus as to its Plea in Abatement is
fundamentally flawed. Premised on the false presumption that abatement can apply
to motions for protection under Rule 176.6(e) at all, the State ignores the absurdity
of its own argument.
A. Abatement Does Not Apply to Motions for Protection Under Rule 176.6(e)
The State has presented no case—and undersigned counsel are not aware of
any case—where abatement was entered on a Motion for Protection from a nonparty
subpoena under Rule 176.6(e) because the action under which the subpoenas were
issued was pending in a different district court. This is unsurprising. Such a result
would render the Rule meaningless.
8 The State failed to discuss Rule 176.6(e) at all in its Petition outside of the
lone mention of it in reference to the Nonparty Patient’s Motion for Protection.
Petition at 4. Appearing to concede its import, the State’s avoidance of the Rule only
highlights why the State feels the need to raise irrelevant, unrelated arguments in its
Petition to try to dodge the issue. The State’s silence speaks volumes.
The plain language of the Rule makes clear that abatement does not apply: “A
person commanded to appear at a deposition, hearing, or trial, or to produce and
permit inspection and copying of designated documents and things, and any other
person affected by the subpoena, may move for a protective order under Rule
192.6(b)—before the time specified for compliance—either in the court in which
the action is pending or in a district court in the county where the subpoena was
served.” Tex. R. Civ. P. 176.6(e). Stated differently, Rule 176.6(e) offers those
affected by a subpoena two places to seek protection—either (1) the court in which
the action is pending; or (2) a district court in the county of service. The statute does
not condition either option on any prerequisites. Nor does it limit the latter option to
situations where the former cannot be used. Rather, it explicitly offers both options
to “any other person affected by the subpoena” without exception.
A subpoena is almost always issued from an already pending proceeding in
some district court. If a “district court in the county where the subpoena was served”
lacked jurisdiction to consider a Motion for Protection because the action under
9 which authority the subpoena was served was pending in another district court, then
this clause of Rule 176.6(e) could never be invoked. The Supreme Court of Texas
surely did not envision such an absurd result when promulgating the Rules of Civil
Procedure.
If jurisdiction was only to lie in the court in which the action is pending, the
second option would be rendered a nullity. Per the canons of statutory interpretation,
which direct courts to construe statutes according to their plain and ordinary meaning
without leading to absurd or nonsensical results, this cannot be so. City of Rockwall
v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008).
This is further underscored by it being an abuse of discretion in Texas for a
trial court in the underlying lawsuit to enter an order for production when a motion
for protection is pending in a different county under Rule 176.6(e). See Reed, 2007
WL 4440901, at *1–2 (relying on Rule 176.6(e) in granting motion for protection
filed in jurisdiction of service where original action and order compelling production
issued from different district court).
But the State’s Petition ignores this farcical result and instead urges this Court
to disregard the clear jurisdiction of the Dallas County Court. The Court should
decline to do so.
10 B. The State’s Petition Proves that Abatement Does Not Apply
The State conflates the nature of the instant proceeding and the parties
involved, both of which are critical to the analysis here. The first step the Court here
must take is to determine whether “an inherent interrelation of the subject matter
exists in two pending lawsuits.’” In re J.B. Hunt Transport, Inc., 492 S.W. 3d at 292.
The Collin County action is a lawsuit, filed by the State, against Dr. May C. Lau.
The relevant action at the Dallas County Court arose out of a Motion for
Protection—not a lawsuit—from nonparty subpoenas filed by the Nonparty Patients
against the State pursuant to the jurisdiction established in Tex. R. Civ. P. 176.6(e).6
The State ignores (i) that the action below is a Motion for Protection from nonparty
subpoenas, not a lawsuit arising from the same facts as its enforcement action in
Collin County; and (ii) the instant action involves a different configuration of
parties than the Collin County action (there, a party vs. party, and in Dallas County,
a nonparty petitioner/movant vs. respondent). By ignoring these critical distinctions,
the State’s abatement analysis fails.
6 A lawsuit involves a party asserting a claim for which a judgment might be entered against another. A motion seeks relief, but results in an order, but not a judgment on the merits that either imposes liability on a party or absolves a party of liability. In their discussion, when the Nonparty Patients use the word “lawsuit,” they refer to a case in which a party asserts at claim against another. The words “case” or “action” refers to matter pending before a court that requires resolution, but not necessarily a judgment, upon its conclusion.
11 While the State’s assertion that “the court in which suit is first filed acquires
dominant jurisdiction to the exclusion of other coordinate courts” is generally
correct, it omits the fact that this rule deals with situations where there are two
competing lawsuits arising from a common set of facts or occurrence involving
interrelated parties. Compare State’s Pet.at 10 (citing In re J.B. Hunt Transport, Inc.,
492 S.W.3d at 299–300) with Coastal Oil & Gas Corp. v. Garza Energy Tr., 268
S.W.3d 1, 26 (Tex. 2008) (“a later-filed suit must be abated ‘[w]hen there exists a
complete identity of parties and controversies’ between it and a[n] earlier suit”).
In many cases the State cites, the identities of the parties are the same, unlike
here. See In re J.B. Hunt, 492 S.W.3d 287 (considering abatement for competing
lawsuits filed Waller and Dallas County concerning an auto accident and the parties
are the same); Miles v. Ford Motor Co., 914 S.W.2d 135 (Tex. 1995) (same, but
competing appeals where the parties appealed from Rusk County to different Courts
of Appeals); Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245 (Tex. 1988) (same, but
competing lawsuits in Duval and Nueces County about unpaid plumbing services);
Hiles v. Arnie & Co., 402 S.W.3d 820 (Tex. App.—Houston [14th Dist.] 2013, pet.
denied) (same, but competing lawsuits in Dallas and Harris County over unpaid
accounting services).
In the other cases the State cites, the parties might be different among the
competing lawsuits (for example, a defendant in a second case may not be a
12 defendant in the first-filed case), but courts exercised discretion to abate because the
cases arise from the same nucleus of operative facts and are overall interrelated. In
re Puig, 351 S.W.3d 301 (Tex. 2011) (considering abatement regarding competing
lawsuits in Fort Bend and Webb County where dispute concerned the ownership of
a ranch); Perry v. Del Rio, 66 S.W. 3d 239, 248 (Tex. 2001) (same, but three
competing lawsuits filed in Travis and two in Harris County challenging the
constitutionality of the State’s congressional districts, which all involved the same
“central” issues as to ripeness); In re Happy State Bank, 2018 WL 1918217 (Tex.
App.—Fort Worth Apr. 23, 2018, orig. proceeding) (same, but competing lawsuits
in Taylor and Parker County about promissory notes); Encore Enters., Inc. v.
Borderplex Realty Tr., 583 S.W.3d 713 (Tex. App. 2019) (same, but competing
lawsuits in El Paso and Dallas County concerning real estate development); In re
Tex. Christian Univ., 571 S.W.3d 384, 388 (Tex. App.—Dallas 2019).
As shown above, each of the State’s cited cases turn on the commonality of
the parties and the nature of the claims they assert—elements that are critically
missing from the Nonparty Patient’s Petition before the Dallas County Court. Here,
the Nonparty Patients are nonparties. Like A-Rent Test Equipment LLC v. Shermco
Industries, the conclusion of the Dallas County proceedings would end with either a
protective order or a dismissal order—not a judgment. 2024 WL 339377 at *3 (Tex.
App.—Dallas Jan. 30, 2024).
13 Here, the lawsuit in Collin County and the motion in Dallas County do not
involve the same parties and do not involve “claims.” The Collin County lawsuit is
a civil action brought by the State against Dr. May C. Lau. That suit was brought as
an enforcement action against Dr. Lau regarding the alleged provision of gender
affirming care. The below action was brought by Nonparty Patients against the State
seeking protection from nonparty subpoenas issued by the State in the Collin County
action to Children’s and UT Southwestern Medical Center, which were served in
Dallas County. The Nonparty Patients are not a party to the Collin County action,
and Dr. Lau is not a party to the action below.
The State cannot get past the absurd result and effective nullification of the
Rules of Civil Procedure it advances. Moreover, when the State’s cases are
compared with the matter here, they support the position of the Nonparty Patients.
Failing to get past the first step in the analysis, the State’s Petition fails and the Court
need not proceed further.
II. The Trial Court’s Order Simply Memorialized the State of the Case
Separately, the State argues that the trial court’s order staying production of
documents under the subpoenas violated the stay imposed by the filing of its
interlocutory appeal. While the Nonparty Patients do not contest the fact that the
State’s filing of the interlocutory appeal pursuant to Tex. Civ. Prac. & Rem. Code
Ann. § 51.014(8) automatically stayed all proceedings at the Dallas County Court
14 on this matter, the Dallas County Court’s Order is not “a further proceeding below”
because it merely memorializes the current state of the case and changes no rights
or obligations of any party.
On February 3, 2025, the Nonparty Patients filed Motions for Protection in
the Dallas County Court, which pursuant to Rule 176.6(e), stays any obligations
under the subpoena. “Pursuant to rule 176.6, a motion for protective order stays a
request for testimony and production of records until such time as the trial court
rules on the motion.” In re Creuzot, 2024 WL 4784362, at *4 (Tex. App.—Dallas
Nov. 14, 2024, no pet.). The Waco Court of Appeals has reached a similar holding.
See Reed, 2007 WL 4440901, at *2 (finding an abuse of discretion where a court
ordered compliance with a subpoena, even though a motion to protect was pending
in another court).
As of March 6, when the State filed its interlocutory appeal, which
automatically stayed all proceedings below, the Nonparty Patients’ motion for
protection was still pending. Thus, all production obligations under the subpoenas
were stayed on two levels—the Nonparty Patients’ initial invocation of Rule
176.6(e) in Dallas County and interlocutory appeal. The Dallas County Court’s
Order that the State currently challenges merely memorialized the state of the case.
Courts regularly issue written orders to clarify the record. The trial court’s written
order doing so did not affect any rights or obligations of the parties and nonparties.
15 This is not a proper issue for mandamus. “Texas courts have long held that an
appealing party may not complain of errors that do not injuriously affect it or that
merely affect the rights of others.” Torrington Co. v. Stutzman, 46 S.W. 3d 829, 843
(Tex. 2000).
Even if the trial court’s order was in error, it is of no moment. The production
obligations under the subpoenas were already stayed. Thus, the rights of the State
were not “injuriously affect[ed]” by the Order, and therefore it lacks standing to
challenge the Order here. See id.
Thus, in any event, even if this Court finds that the Dallas County Court’s
challenged Order is void, production under the subpoenas is still stayed pending
resolution of the Nonparty Patients’ Motion for Protection at the court below.
III. The State has Failed to Prove it is Entitled to Mandamus Relief
Failing to show that the trial court abused its discretion, the State has failed to
prove that it is entitled to mandamus relief.
CONCLUSION AND PRAYER
For the foregoing reasons, Nonparty Patients pray this Court deny the State’s
Petition for Writ of Mandamus.
16 Dated: May 2, 2025 Respectfully Submitted,
/s/ William M. Logan
Jervonne D. Newsome (Lead Counsel) Texas Bar No. 24094869 jnewsome@winston.com Thanh D. Nguyen Texas Bar No. 24126931 tdnguyen@winston.com Jonathan Hung Texas 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 Texas Bar No. 24116670 edlewis@winston.com 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
17 CERTIFICATE OF FACTUAL SUPPORT
I hereby certify that I have reviewed the foregoing document and concluded
that every factual statement in the foregoing document is supported by competent
evidence included in the appendix or the record.
/s/ William M. Logan William M. Logan
CERTIFICATE OF COMPLIANCE
As required by Texas Rule of Appellate Procedure 9.4(i)(1), I hereby certify
that the foregoing Response in Opposition to Petition for Writ of Mandamus contains
3,876 words.
/s/ William M. Logan William M. Logan
CERTIFICATE OF SERVICE
I certify that the foregoing was served upon all interested parties pursuant to
Texas Rule of Appellate Procedure 9.5(b)(2).
/s/ William M. Logan William M. Logan
18 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.
Randi Marks on behalf of William Logan Bar No. 24106214 rmarks@winston.com Envelope ID: 100401940 Filing Code Description: Response Filing Description: RESPONSE IN OPPOSITION TO RELATORS PETITION FOR WRIT OF MANDAMUS Status as of 5/5/2025 7:05 AM CST
Associated Case Party: State of Texas
Name BarNumber Email TimestampSubmitted Status
David G. Shatto david.shatto@oag.texas.gov 5/2/2025 6:29:47 PM SENT
Rob Farquharson rob.farquharson@oag.texas.gov 5/2/2025 6:29:47 PM SENT
Abby Smith abby.smith@oag.texas.gov 5/2/2025 6:29:47 PM SENT
Johnathan Stone johnathan.stone@oag.texas.gov 5/2/2025 6:29:47 PM SENT
Associated Case Party: Hon. Monica Purdy
Name BarNumber Email TimestampSubmitted Status
Karin Alonzo kalonzo@dallascourts.org 5/2/2025 6:29:47 PM SENT
Associated Case Party: Nonparty Patients Nos. 1-11
Name BarNumber Email TimestampSubmitted Status
William Logan 24106214 wlogan@winston.com 5/2/2025 6:29:47 PM SENT
Evan Lewis 24116670 edlewis@winston.com 5/2/2025 6:29:47 PM SENT
Jervonne Newsome 24094869 jnewsome@winston.com 5/2/2025 6:29:47 PM SENT
Jonathan Hung 24143033 johung@winston.com 5/2/2025 6:29:47 PM SENT
Thanh Nguyen tdnguyen@winston.com 5/2/2025 6:29:47 PM SENT
Olivia Wogon owogon@winston.com 5/2/2025 6:29:47 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status 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.
Randi Marks on behalf of William Logan Bar No. 24106214 rmarks@winston.com Envelope ID: 100401940 Filing Code Description: Response Filing Description: RESPONSE IN OPPOSITION TO RELATORS PETITION FOR WRIT OF MANDAMUS Status as of 5/5/2025 7:05 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Pauline Sisson pauline.sisson@oag.texas.gov 5/2/2025 6:29:47 PM SENT
Emily Samuels emily.samuels@oag.texas.gov 5/2/2025 6:29:47 PM SENT
Melinda Pate melinda.pate@oag.texas.gov 5/2/2025 6:29:47 PM SENT
Houston Docketing ecf_houston@winston.com 5/2/2025 6:29:47 PM SENT
David Phillips dphillips@winston.com 5/2/2025 6:29:47 PM SENT
Hollie Albin hmalbin@winston.com 5/2/2025 6:29:47 PM SENT
Sarah McGrath smcgrath@winston.com 5/2/2025 6:29:47 PM SENT
Associated Case Party: UT Southwetern Medical Center ("UTSW")
Name BarNumber Email TimestampSubmitted Status
Martin Cohick 24134042 martin.cohick@oag.texas.gov 5/2/2025 6:29:47 PM SENT
Patrick Todd patrick.todd@oag.texas.gov 5/2/2025 6:29:47 PM SENT