Nariocan Enterprises LLC D/B/A Cantu's Pharmacy v. the Texas Health and Human Services Commission

Court of Appeals of Texas·Decided February 14, 2025·No. 15-24-00117-CV·Published

Opinion

ACCEPTED 15-24-00117-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 2/14/2025 9:10 AM CAUSE NO. 15-24-00117-CV CHRISTOPHER A. PRINE CLERK NARIOCAN ENTERPRISES LLC § IN THE FIFTEENTH d/b/a CANTU’S PHARMACY § FILED IN 15th COURT OF APPEALS § AUSTIN, TEXAS VS. § COURT OF A 2/14/2025 9:10:50 PPEALSAM § CHRISTOPHER A. PRINE Clerk THE TEXAS HEALTH AND § HUMAN SERVICES COMMISSION § AUSTIN

APPELLANT’S AND APPELLEE’S JOINT MOTION TO SUPPLEMENT APPELLATE RECORD AND RESTART BRIEFING DEADLINES

Appellant Nariocan Enterprises LLC d/b/a Cantu’s Pharmacy

(“Nariocan”) and Appellee Texas Health and Human Services Commission (“the

Commission”) file this joint motion to apprise the Court of their need to

supplement the appellate record and restart their briefing deadlines.

ARGUMENT

This appeal stems from a final order granting the Commission’s amended

plea to the jurisdiction (“the Plea”). On November 7 2024, Nariocan filed its

“Plaintiff’s Amended Request for Preparation of Reporter’s Record,” wherein it

requested that the court reporter, Michelle Williamson, prepare the transcript for

the hearing held on the Plea. Later that same day, Ms. Williamson informed

Nariocan’s appellate counsel—who was not present at said hearing—that no

record had been taken at the July 30, 2024 hearing. EXHIBIT 1. Ms. Williamson

then filed with this Court a “Reporter’s Record Status Report,” wherein she

stated that no record was taken.

1 On February 11, 2025, the Commission’s trial and appellate counsel,

Sherlyn Harper, sent an email to Ms. Williamson asking her to take another look

into the existence of a record for the July 30, 2024 hearing. Id. Upon conducting

another search for the record, Ms. Williamson uncovered said record and

notified Ms. Harper, who in turn notified Nariocan’s counsel. Id. On

February 12, 2025, Naricoan (1) made payment to Ms. Williamson for the newly-

located record; and (2) again served on Ms. Williamson its request for

preparation of reporter’s record.

Based on the foregoing facts, Nariocan and the Commission jointly ask

the Court to permit supplementation of the appellate record as permitted by

Texas Rule of Appellate Procedure 34.6. See TEX. R. APP. P. 34.6 (addressing

supplementation of reporter’s record). The parties also jointly ask that the Court

restart the briefing deadlines and afford Nariocan an opportunity to file an

amended brief—for Nariocan unknowingly did not have the benefit of a truly

complete appellate record at the time it filed its brief on January 24, 2025. See

TEX. R. APP. P. 38.7 (“A brief may be amended or supplemented whenever

justice requires, on whatever reasonable terms the court may prescribe.”). More

specifically, the parties ask (1) that Nariocan be permitted to file an amended

brief within fourteen days of the date the Court receives the reporter’s record

from Ms. Williamson; and (2) that the Commission be permitted to file its brief

within thirty days of the date the Court receives Nariocan’s amended brief.

2 PRAYER

For the above reasons, Nariocan and the Commission pray that the Court

(1) permit supplementation of the appellate record; (2) permit Nariocan to file

an amended brief; and (3) restart the briefing deadlines as requested above.

Respectfully submitted,

/s/ Ricardo Pumarejo Jr. Ricardo Pumarejo Jr. State Bar No. 24056168 ricardo@pumarejolaw.com PUMAREJO LAW 1606 W. 42nd St. Austin, TX 78756 p. 512.731.7869 Counsel for Appellant

/s/ Sherlyn Harper Sherlyn Harper State Bar No. 24093716 Assistant Attorney General Administrative Law Division OFFICE OF THE TEXAS ATTORNEY GENERAL 808 Travis Street, #1520 Houston, Texas 77002 Telephone: (713) 225-8913 Facsimile: (512) 320-0167 sherlyn.harper@oag.texas.gov Counsel for Appellee

3 Ricardo Pumarejo

From: Michelle Williamson Sent: Thursday, November 7, 2024 1:43 PM To: Ricardo Pumarejo Subject: Re: Cause No. D-1-GN-24-001103 - Request for Prep of Reporter's Record

Good afternoon.

There was no record made of the July 30, 2024, hearing in this case before Judge Jan Soifer.

Kind regards,

Michelle Williamson, CSR Official Court Reporter for The Honorable Jan Soifer 345th District Court, Travis County Travis County Civil and Family Courts Facility 1700 Guadalupe Street, Courtroom 10-C Austin, Texas 78701 Telephone: (512) 854-9373 Facsimile: (512) 854-4540 E-mail: michelle.williamson@traviscountytx.gov Website: https://www.traviscountytx.gov/courts/civil/district/345

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******ATTACHED TRANSCRIPT NOTICE: By opening the attached PDF file, you understand and agree that this Reporter's Record is for the use of your law office/firm only in the representation of the client(s) that is a party to this suit. No part of this reporter's record may be reproduced, distributed, or transmitted in any form or means including but not limited to photocopying, recording, or any electronic or mechanical method except as required in the transmission to your client or quotations embodied in briefs or motions as may be required in the representation of your client. Any unauthorized copy obtained by an attorney for use in court from anyone other than the official court reporter of the 345th District Court is NOT a certified copy.******

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From: Ricardo Pumarejo Sent: Thursday, November 7, 2024 11:39 AM

1 Exhibit 1 To: Michelle Williamson Subject: [CAUTION EXTERNAL] Cause No. D-1-GN-24-001103 - Request for Prep of Reporter's Record

CAUTION: This email is from OUTSIDE Travis County. Links or attachments may be dangerous. Click the Phish Alert button above if you think this email is malicious.

Ms. Williamson,

Today the attached notice of appeal was filed with the Fifteenth Court of Appeals and the attached amended request for preparation of reporter’s record was filed with the district clerk’s office. I had initially directed my request to the court reporter for the 98th District Court—which is the court assigned to the suit— but I was then advised that my request should go to the court reporter for Judge Soifer, who presided over the hearing for which a transcript is sought.

If you believe that the request for preparation of the reporter’s record should be directed to someone else, please let me know. If you will be preparing the reporter’s record, then please direct any request for payment to me.

Thank you.

Ricardo Pumarejo PUMAREJO LAW 1606 W. 42nd St. Austin, TX 78756 p. 512.731.7869 ricardo@pumarejolaw.com

2 Ricardo Pumarejo

From: Sherlyn Harper Sent: Wednesday, February 12, 2025 11:24 AM To: Ricardo Pumarejo Subject: FW: D-1-GN-24-001103 Attachments: Invoice 2025-0201 D1GN24001103.pdf

From: Michelle Williamson

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