ACCEPTED 15-25-00182-cv FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 1/6/2026 9:19 AM No. 15-25-00182-CV CHRISTOPHER A. PRINE CLERK FILED IN 15th COURT OF APPEALS AUSTIN, TEXAS In the Court of Appeals for the 1/6/2026 9:19:39 AM Fifteenth District of Texas CHRISTOPHER A. PRINE Austin, Texas Clerk
Texas Health and Human Services Commission et al, Appellant, v.
Kenneth Collier and Taneshu Collier et al. Appellee.
On Appeal from the 345th Judicial District Court, Austin, Texas
Brief of Appellee
John Ferguson Texas State Bar No. 24066597 john@fergusonlawpractice.com Kyle Ann Ferguson Texas State Bar No. 24065223 kyle@fergusonlawpractice. com Ferguson Law Practice PLLC 1017 RR 620 S, Ste 222 Austin TX 78734 Tel: (512) 996-5407 Fax: (737) 208-1931 Counsel for Appellee
ORAL ARGUMENT REQUESTED Identity of Parties and Counsel
Appellant: Texas Health and Human Services Commission et al
Counsel for Appellant: Kelsey Hanson Texas Bar No. 24096654 Assistant Attorney General PO Box 12548, Capital Station Austin, Texas 78711-2548 Tel: (737) 224-1244 Fax: (512) 320-0667 Kelsey.hanson@oag.texas.govc
Appellee: Kenneth Collier and Taneshu Collier et al
Counsel for Appellee: John Ferguson Texas State Bar No. 24066597 john@fergusonlawpractice.com Kyle Ann Ferguson Texas State Bar No. 24065223 kyle@fergusonlawpractice. com Ferguson Law Practice PLLC 1017 RR 620 S, Ste 222 Austin TX 78734 Tel: (512) 996-5407 Fax: (737) 208-1931 Counsel for Appellee
Trial Court: Hon. Don Burgess Judge Presiding 345th Judicial District Court Travis County, Texas
ii Table of Contents
Title Page (Oral Argument Requested) ……………………………………….i
Identity of Parties and Counsel ……………………………………………….ii
Table of Contents ……………………………………………………………..iii
Index of Authorities ……………………………………………………………iv
Statement of the Case …………………………………………………...…………1
Record References ………………………………………………………...……….2
Statement of Facts …………………………………………………………………2
Appellees Claims Against Appellants …………………………………….………8
Summary of Argument …………………………………………………………..10
Argument and Authorities ………………………………………………..………13
Argument Re Plea to Jurisdiction ………………………………………..15
Argument Re Temporary Injunction …………………………………….30
Conclusion and Prayer ………………………………………………………….32
Certifications ……………………………………………………………………33
iii Index of Authorities
Page(s) Cases
Cameron County Appraisal District v. Rourk, 2016 WL 380309 (Tex. App. – Copus Christi) (2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 19
City of Austin v. Miller, 714 SW3d 920 (Tex. App. – Austin) (2025) . . . . . . . . . . . 14
City of El Paso v. Heinrich, 284 S.W.3d 366, 370 and 372 (Tex. 2009) . . . . . . . . . . . . 28
Collier v. Suhre, (Tex.App.-Hous. (1 Dist.) 2020) 605 S.W.3d 699 . . . . . . . . 9, 12, 18, 28
County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002) . . . . . . . . . . . . . . 13
Hous. Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016) . . . . 28
In re Marriage of Beach, 97 S.W.3d 706, 708 (Tex.App.-Dallas 2003, no pet.) . . . . . . 15
Loye v. Travelhost, Inc., 156 S.W.3d 615, 619 (Tex.App.-Dallas 2004) . . . . . . . . . . . 15
M.D. v. Abbott, 2:11-cv-00084, 509 F. Supp. 3d 683 (S.D. Tex.) (2020) . . . 4, 17
Patel v. Texas Department of Licensing and Regulation, 469 SW3d 69 (Tex. 2014) . . . . 27, 29
Rugen v. Interactive Bus. Sys., Inc., 864 S.W.2d 548, 551–52 (Tex.App.-Dallas 1993) . . 15
Strickland v. Medtronic, Inc., 97 S.W.3d 835, 837 (Tex.App.-Dallas 2003) . . . . . . . . . 15
Stukenberg v. Abbott, 509 F.Supp. 3d 683 (US Dist. Ct.) . . . . . . . . . . . . . . . 3, 17
Texas Department of Insurance v. Texas Association of Health Plans (Tex.App.-Austin 2020) 598 S.W.3d 417 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 18
Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004)) . . 13
Texas Education Agency v. Houston Independent School District, 609 SW3d 569 (Tex. App. –
Austin) (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 ii Texas Tech Univ. Sys. v. Martinez, 691 S.W.3d 415, 419 (Tex. 2024) . . . . . . . . . . . 14
Tom James of Dallas, Inc. v. Cobb, 109 S.W.3d 877, 883 (Tex.App.-Dallas 2003) . . . 15
Laws and Rules 26 Tex. Admin. Code § 745.497 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-30 42.048 Texas Human Resources Code………………………………… 2-30 42.050 Texas Human Resources Code………………………………… 22 42.051 Texas Human Resources Code………………………………… 21 Chapter 37 Tex. Civ. Prac. Rem. Code .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-30 Childcare Regulation Handbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 6, 23 Tex. Govt. Code 2001.038 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-30 Tex. R. App. Proc. 29.3 . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31-32
v vi Statement of the Case
Nature of the Appellants have unlawfully placed the condition of heightened Case: monitoring on two of Appellees’ residential treatment facilities, so Appellees sued Appellants for Declaratory Relief Under Tx. Govt. Code § 2001.038, for declaratory relief under Chapter 37 of the Texas Civil Practice and Remedies Code, and for a temporary and permanent injunction against Appellants continuing to unlawfully carry out heightened monitoring procedures against Appellees expressly leaving open the possibility that future circumstances may require a lawful placement of heightened monitoring on Appellees’ facilities.
Trial Court: Hon. Don Burgess, Honorable Judge Presiding, 345th Judicial District, Travis County, Texas.
Trial Court The Court denied Appellants’ plea to the jurisdiction finding Proceedings: that Appellants had sufficiently stated grounds for jurisdiction against Appellants and the Court granted a temporary injunction in favor of Appellees enjoining Appellants’ enforcement of heightened monitoring procedures against Appellees.
Statement Regarding Oral Argument
Appellee believes that oral argument would assist the Court in its review of
the legal arguments and evidence, and requests argument. See TEX. R. App. P. 39.
Issues Presented
1. Did the trial court err in determining Appellees did indeed state causes
of action conferring jurisdiction on the trial court?
2. Did the trial court err in determining that Appellees are entitled to
injunctive relief?
1 Record References
In this brief, the Clerk’s Record is cited as “CR” and the Reporter’s Record
is cited as “RR”.
Statement of Facts
A. Appellee’s operations and enforcement timeline1.
Kenneth and Taneshu Collier created TRELS Home for Children on August
21, 2018, and TRELS Home LLC on February 19, 2021, for the purposes of
providing foster care and residential treatment center services for children in state
custody (“TRELS”). HHSC issued initial licenses to TRELS Home LLC on April
18, 2024, and to TRELS Home for Children on October 3, 2024, without
designating a condition of heightened monitoring on the licenses.
Thereafter, on March 28, 2025, HHSC retroactively designated a condition
of heightened monitoring on the license of TRELS Home LCC, and on April 2,
2025, HHSC retroactively designated a condition of heightened monitoring on the
license of TRELS Home for Children citing their authority to do so as 42.048 of
the Texas Human Resources Code (“operative statute”) and 26 Texas
Administrative Code §745.497(c)(1) (“TAC provision”). Both the operative statute
and the TAC provision allow placement of a heightened monitoring condition only
at the issuance of an initial license.
1 The following facts and arguments are all contained at CR 3-16.
2 The operative statute and the TAC provision concern solely the issuance of
an initial license. Appellees’ initial licenses had already been issued almost a year
or six months prior to the retroactive designation of heightened monitoring,
respectively.
After the issuance both TRELS operations were already established and
operating. To impose heightened monitoring on an already established operation
requires an intense showing. Pursuant to a March 18, 2020, federal court order
issuing from the litigation known as the Stukenberg cases2, a designation of
heightened monitoring against an established operation requires “a high rate of
contract and standards violations for at least three of the last five years” (see,
Stukenberg v. Abbott, 509 F.Supp. 3d 683 at 794 (US Dist. Ct. – Copus Christi)
(2020)). Thus, it is impossible to issue a designation of “heightened monitoring”
against an established entity operating less than three years. But, more importantly,
there is a marked distinction between issuing a license with a heightened
monitoring condition versus placing an already operating facility on heightened
monitoring. HHSC’s retroactive application of the applicable statute and TAC
provision is unlawful and is an egregious attempt to abridge the very exacting and
2 In short, a group of children through their guardians sued the State of Texas for failing to
protect them from abuse while in the custody of the foster care system in Texas. The litigation resulted in the appointment of a board to identify problem areas and restitutions to same. The formal concept of “heightened monitoring” was born from this litigation and these board resolutions. As such, the term “heightened monitoring” and how the need for same is established is defined in this line of cases and the resolutions of the board established thereby. 3 rigorous showing required to place an already operating facility on heightened
monitoring. After issuing the licenses to TRELS, HHSC and DFPS must now only
evaluate TRELS for a pattern of violations that meet the criteria for heightened
monitoring as set forth in the federal court order for M.D. v Abbott litigation. See
M.D. v. Abbott, 2:11-cv-00084, (S.D. Tex.). TRELS’ aforementioned operations
do not have a pattern of violations triggering such an evaluation and therefore
cannot be placed on heightened monitoring.
Appellees contacted HHSC by letter demanding the heightened monitoring
conditions be removed from TRELS licenses as HHSC had no authority to impose
such a condition after the initial licenses were issued. HHSC refused to remove the
condition and has instead subjected TRELS to dogged and harassing scrutiny
without any justification whatsoever other than the unlawful retroactive
designation of “heightened monitoring.”
In fact, since March of 2025, HHSC and DFPS heightened monitoring staff
conducted 19 inspection visits to TRELS. Each visit requires the inspector to
review staff and child files to inspect for compliance with standards listed in the
heightened monitoring plan, evaluate TRELS for compliance with background
check rules, review serious incident reports, conduct a walk-through inspection of
the operation, as well as interview a minimum of one staff member, and if
necessary, children in care. To date, 5 children in care have been interviewed as
4 part of the inspection visits. These TRELS operations have a combined full
capacity of 25 children resulting in over 20 percent of its population already being
interviewed by the agencies.
In addition to increased interviews, visits and oversight, TRELS must have
all child placements approved by the Associate Commissioner or Regional
Director for Children’s Protective Services (CPS). The weekly unannounced
inspection visits will continue until TRELS is released from its heightened
monitoring plans which began April 15, 2025, and will remain in effect for at least
one year until DFPS and HHSC release TRELS from the heightened monitoring
plan based on completion of all the following requirements:
a) TRELS has satisfied the conditions of its heightened monitoring plan;
b) TRELS is in compliance with the standards and contract requirements
that led to heightened monitoring (as demonstrated by at least six
months’ successive unannounced visits); and
c) TRELS is not out of compliance on any medium-high or high-weighted
licensing standards.
HHSC and DFPS tasked TRELS with several conditions outlined in the
heightened monitoring plans. TRELS Home for Children has 17 plan tasks while
TRELS Home LLC has 19 plan tasks. Each task contains several components
including but not limited to requiring Appellees to create training material and re-
5 train staff, conduct their own weekly unannounced onsite visits after hours, and
develop or enhance current policy/procedures. In addition, Appellees are required
to participate in a monthly meeting held by DFPS and HHSC heightened
monitoring staff to discuss the status and compliance with plan tasks.
These unlawful audits, with their stunning frequency and unusual breadth,
raise to a level of harassment and consistently injure Appellees financially by
straining their resources and by massively interfering with their otherwise lawful
right to operate their facilities. In the absence of a heightened monitoring
designation HHSC’s typical monitoring and/or audit procedure and frequency are
drastically minimized. The frequency of regulating a licensed facility within the
first 12 months after the issuance of a full license requires HHSC to conduct at
least one unannounced monitoring inspection every six months and evaluate for
compliance with all minimum standards within 12 months (Child Care Handbook
4131). Typically, that means an HHSC inspector would conduct two unannounced
visits during a one-year period. After the first 12 months following the issuance of
a full license, the inspector conducts an unannounced monitoring section at least
annually (Human Resource Code 42.044(b)). Further, at least once every two
years, HHSC must conduct an inspection after 7 p.m. on a weekday or anytime on
the weekend. Appellees understand and have no issue with standard monitoring
and audits, instead Appellees complain of the intense, unauthorized and unjustified
6 burden of subjection to heightened monitoring procedures where such a
designation has been unlawfully placed by HHSC on TRELS.
Post Trial Court Ruling Conduct. Additionally3, as the Court is aware,
even after Appellees were granted relief by the trial court from the above actions,
Appellants filed a quick notice of appeal then immediately, on November 7, 2025,
at 5:30 pm (approx.), the State called upon droves of investigators to
simultaneously attack both of Appellees’ facilities (which are in completely
different cities) on a Friday night at 5:30 pm. Both teams of investigators stated to
Appellees’ employees (and one of them “Mark Stehly” actually told undersigned
counsel over the phone) that they were instructed by “management” to
simultaneously descend upon Appellees facilities immediately because “the order
had been lifted”. Undersigned counsel asked Robert Behles what other acute
emergency required a simultaneous and surprise descension on Appellees’
facilities at 5:30 pm on a Friday night and there was no other explanation given.
So, the State, with no justification other than raw revenge, coordinated a joint
attack on Appellees facilities nearly immediately upon filing the notice of appeal.
The surprise and unwarranted inspections disrupted the children in care and the
staff. The children were preparing for dinner and bed when the State made their
3 These facts in this paragraph are not part of the Appellate record and could not be as the events
occurred after Appellants filed their appeal but these events and the accompanying affidavits were part of a motion for relief filed with this Honorable Court under this cause number. 7 surprise entry and it disrupted the children and they found it distressing and
confusing. The subject operations were unlawfully placed on heightened
monitoring (and due only to common ownership and not due to any previous
misconduct or standards violations). The October 15, 2025, oral trial court ruling
granting the temporary injunction had been in place for a mere two weeks at the
time the State performed the emergency and baseless invasion. In fact, on October
29, 2025, HHSC conducted its normal announced annual licensing inspection at
the Hondo facility, so the State had inspected the Hondo facility within the last
eight days before the November 7, 2025, concerted invasion. There was no other
emergency need (or any need at all) to visit these facilities other than for revenge.
Then, unbelievably, on November 13, 2025, the State showed up again. This time
the State said they had to video record everyone. The State had never done that
before and it was merely to harass Appellees. There is no other justification for this
behavior beyond harassment. The very second the State filed its notice of appeal it
sought revenge and it harassed Appellees for no reason at all.
B. APPELLEES’ CLAIMS AGAINST APPELLANTS
Based on the foregoing facts (in “A. Appellee’s operations and enforcement
timeline”) Appellees have filed suit alleging the following causes of action based
on the reasoning stated below and also found at CR 8-9 and CR 40-47:
8 Declaratory Relief Under Tx. Govt. Code § 2001.038. Section 2001.038
of the Government Code creates a cause of action for declaratory judgment
regarding the validity or applicability of a rule and is a grant of original jurisdiction
and, moreover, waives sovereign immunity, as to a suit brought by a plaintiff
alleging that a rule interferes with or impairs its legal right or privilege. Texas
Department of Insurance v. Texas Association of Health Plans (Tex.App.-Austin
2020) 598 S.W.3d 417. Appellees restate all the facts in “A. Appellee’s operations
and enforcement timeline” herein as if replicated verbatim here. Based on these
facts Appellees allege that the unlawful, retroactive application of the TAC
provision interferes with its legal rights to run its operations.
Uniform Declaratory Judgment Act as to Individual Appellants in their
Official Capacities. Chapter 37 of the Texas Civil Practice and Remedies Code
applies against individual state agents in their official capacities when the actions
they take are “ultra vires”. Claims brought under the Uniform Declaratory
Judgment Act (UDJA) for declaratory or injunctive relief against actions taken by
a governmental official beyond her discretion or without legal authority, known as
ultra vires actions, do not implicate governmental immunity. Collier v. Suhre,
(Tex.App.-Hous. (1 Dist.) 2020) 605 S.W.3d 699. Appellees restate all the facts in
section “A. Appellee’s operations and enforcement timeline” herein as if replicated
verbatim here. Based on these facts Appellees allege that Cecile Erwin Young and
9 Laura Castillo have acted ultra vires by applying the operative statute and TAC
provision in a manner not allowed by their express language. The operative statute
and the TAC provision apply only to issuance of a license and not to ongoing
operations after said issuance. As such Appellant’s use of the operative statute and
TAC provision against an ongoing operation is unlawful and ultra vires. Appellees
seek declaratory relief declaring that these individual actors are taking unlawful
and unauthorized actions not supported by the operative statute or even by their
own TAC provision. Appellees also seek attorney’s fees.4
Summary of the Argument
• Regarding Appellants’ Plea to the Jurisdiction.
Appellees’ basis for jurisdiction in its petition is obvious and plain. Appellants
placed a designation of “heightened monitoring” on Appellees’ childcare facilities
after Appellants had already issued Appellees’ licenses without any conditions.
When questioned about their authority to do that, Appellants cited a statute and a
TAC provision that concern “issuance5” of a license. Appellees’ licenses had
already been issued without any conditions, but Appellants retroactively placed
(and are in fact currently burdening Appellees’ licensures with) a condition of
heightened monitoring on Appellees’ already issued licenses. It is beyond clear
4 See, for example, Cameron County Appraisal District v. Rourk, 2016 WL 380309 (Tex. App. –
Copus Christi) (2016). 5 Black’s Law Dictionary defines “issuance” as “the instance of putting, sending, or giving
something out”; Cambridge Dictionary defines issuance as “the act of supplying an official document”; Meriam Webster defines issue as “the act of publishing or giving out” 10 that the statute and TAC provision Appellants cite as their authority for their
unlawful actions concern only the “issuance” of a license. As such Appellees filed
this lawsuit for declaratory relief. Appellees carefully, accurately, and effectively
cited proper and controlling case law in its petition knowing Appellants would file
a reflexive, knee-jerk plea to the jurisdiction. Instead of simply remediating its
unlawful actions by removing the retroactive designation of the heightened
monitoring conditions, the Appellants instead attempt to hide behind an
inapplicable shroud of “immunity” and ask this Court to save them from their
unlawful actions (in fact they are asking the Court to aid them in continuing their
unlawful activity) so they can simply “close their file.” Appellants’ plea to the
jurisdiction mindlessly recites, again and again, general and thoughtless precepts of
governmental immunity devoid of any case specific analysis.
All the while Appellees are suffering from the effects of Appellants’
unlawful behavior (as recounted and specifically described in Appellees’ petition
at CR 5-8). Appellees have recognized remedies, and both are exceptions to or
waivers of immunity.
• As plainly cited in its petition, Appellees sue under Texas
Government Code 2001.038 and that statute is a waiver of sovereign
immunity when the validity or application of a regulation impairs a
legal right or privilege of Appellee. See, Texas Department of
11 Insurance v. Texas Association of Health Plans (Tex.App.-Austin
2020) 598 S.W.3d 417 (stating “Provision of Administrative
Procedure Act (APA), which creates cause of action for declaratory
judgment regarding validity or applicability of rule is a grant of
original jurisdiction and, moreover, waives sovereign immunity, as
to a suit brought by a plaintiff alleging that a rule interferes with or
impairs its legal right or privilege”).
• Additionally, Appellees sue under the Declaratory Judgment Act
alleging that the named officials are acting without lawful authority
and in an ultra vires fashion. Appellees cite a completely on point and
eerily similar case. Collier v. Suhre, (Tex.App.-Hous. (1 Dist.) 2020)
605 S.W.3d 699. The Collier case states that that the Declaratory
Judgment Act waives immunity when the Appellee complains of
government official actions taken beyond their discretion or without
legal authority. Appellees plainly state that the cited statute and TAC
provision Appellants allege as their authority to retroactively place a
“heightened monitoring” condition on Appellees’ licenses applies
only to license issuance and so cannot possibly form the lawful basis
for such an action after issuance. As such, these government officials
are acting outside their lawful authority which is otherwise known as
12 “ultra vires” action.
Appellees’ citations are on the face of its petition, and their reasoning and
applicability are plain. Appellees’ basis for jurisdiction is so plain that Appellees
believe the Appellants’ plea to the jurisdiction is frivolous. The test for jurisdiction
is based on the face of the pleadings and Appellees’ pleadings plainly state two
causes of action that waive sovereign immunity and while this is not relevant to a
plea to the jurisdiction Appellees do in fact provide a clear and convincing factual
basis and argument as to why they will ultimately prevail.
Argument and Authorities I. Standard of Review.
• Regarding Appellants’ Plea to the Jurisdiction. In reviewing a plea to the jurisdiction courts construe the pleadings liberally
in the plaintiff's (here Appellee) favor, do not weigh the merits of claims, indulge
every reasonable inference, and resolve any doubts in favor of jurisdiction. See,
Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex.
2004)); see also, County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).
Conversely, “[t]he party asserting the plea must establish an incurable
jurisdictional defect apparent from the face of the pleadings that makes it
impossible for the plaintiff's petition to confer jurisdiction on the trial
court.” Miranda, 133 S.W.3d at 228. If a plaintiff fails to plead facts sufficient to
establish jurisdiction, but the petition does not affirmatively demonstrate incurable 13 defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff
should be afforded an opportunity to amend. Id. at 226–27; Texas Tech Univ. Sys.
v. Martinez, 691 S.W.3d 415, 419 (Tex. 2024). Note that the test for jurisdiction is
based solely on the facts in the pleadings and not on the ultimate success of the
claims6 (City of Austin v. Miller, 714 SW3d 920 (Tex. App. – Austin) (2025) at
925).
• Regarding the Temporary Injunction
The decision to grant or deny an application for a temporary injunction is
within the sound discretion of the trial court. See, e.g., Butnaru v. Ford Motor Co.,
84 S.W.3d 198, 204 (Tex.2002); Walling v. Metcalfe, 863 S.W.2d 56, 57
(Tex.1993) (per curiam); Wilson N. Jones Mem'l Hosp. v. Huff,188 S.W.3d 215,
218 (Tex.App.-Dallas, 2003, pet. denied) (published, but not yet reported in
S.W.3d). An appellate court will not reverse a trial court's decision to deny an
application for a temporary injunction absent an abuse of discretion. See, e.g.,
Butnaru, 84 S.W.3d at 204; Walling, 863 S.W.2d at 58; Wilson N. Jones Mem'l
Hosp., 188 S.W.3d at 218. An appellate court will not substitute its judgment for
that of the trial court. See e.g., Butnaru, 84 S.W.3d at 204; Wilson N. Jones Mem'l
Hosp., 188 S.W.3d at 218. Also, an appellate court draws all legitimate inferences
6 Appellees believe their claims have intense merit but at this stage of the litigation with Appellants filing a plea to the jurisdiction Appellees do not have a merit-based burden but instead only a pleading, fact-based burden. 14 from the evidence in the light most favorable to the trial court's order granting or
denying the application for a temporary injunction. See, e.g., Tom James of Dallas,
Inc. v. Cobb, 109 S.W.3d 877, 883 (Tex.App.-Dallas 2003, no pet.); In re Marriage
of Beach, 97 S.W.3d 706, 708 (Tex.App.-Dallas 2003, no pet.); see also Loye v.
Travelhost, Inc., 156 S.W.3d 615, 619 (Tex.App.-Dallas 2004, no pet.) (op. on
reh'g); Strickland v. Medtronic, Inc., 97 S.W.3d 835, 837 (Tex.App.-Dallas 2003,
pet. dism'd w.o.j.); Rugen v. Interactive Bus. Sys., Inc., 864 S.W.2d 548, 551–52
(Tex.App.-Dallas 1993, no writ).
• Argument Regarding Plea to Jurisdiction FACTUAL BASIS FOR JURISDICTION: HHSC issued licenses to TRELS
Home LLC on April 18, 2024, and to TRELS Home for Children on October
3, 2024, without designating a condition of heightened monitoring on the
licenses. Thereafter, HHSC retroactively designated a condition of heightened
monitoring on the already issued licenses of TRELS Home LLC, on March 28,
2025, and on TRELS Home for Children on April 2, 20257. Appellants cited their
authority to do so as 42.048 of the Texas Human Resources Code (“operative
statute”) and 26 Texas Administrative Code §745.497(c)(1) (“TAC provision”).
7 Reporters Record, Volume 3, Pages 16-39, which are Exhibit P-007 through P-010, show the
actual licensing documents and the summary of a timeline which was admitted to evidence without objection and all of which shows Appellants issued the initial licenses without any conditions at all. 15 Both the operative statute and the TAC provision concern solely the
“issuance” of a license. The operative statute (42.048(b)) says “when issuing a
license, the commission may impose restrictions8”. The cited TAC provision
concerns solely the “issuance” of a license as well; every applicable subpart of the
TAC provision cited says “when issuing”. TRELS operations’ licenses had already
been issued without any conditions of heightened monitoring, and they had been
operating for almost a year for one of them and for six months for the other prior to
the retroactive designation of heightened monitoring.
When Appellants placed a heightened monitoring designation on Appellees’
operations the operations were already licensed, established, and operating. To
impose heightened monitoring on an already licensed and established operation
requires an intense showing. Pursuant to a March 18, 2020, federal court order
issuing from the litigation known as the Stukenberg cases9, a designation of
heightened monitoring against an established operation requires “a high rate of
contract and standards violations for at least three of the last five years” (see,
8 Please note that, as a secondary concern not germane to this plea to the jurisdiction, “restrictions” is a term Appellees intend to vet throughout the discovery process as it is not clear at all that even at issuance a designation of heightened monitoring is a simple “restriction” or something more than a “restriction” because of its severity and burden on the operation. 9 In short, a group of children through their guardians sued the State of Texas for failing to
protect them from abuse while in the custody of the foster care system in Texas. The litigation resulted in the appointment of a board to identify problem areas and restitutions to same. The formal concept of “heightened monitoring” was born from this litigation and these board resolutions. As such, the term “heightened monitoring” and how the need for same is established is defined in this line of cases and the resolutions of the board established thereby. 16 Stukenberg v. Abbott, 509 F.Supp. 3d 683 at 794 (US Dist. Ct. – Copus Christi)
(2020)). Thus, it is impossible to issue a designation of heightened monitoring
against an established entity operating less than three years. But, more importantly,
there is a marked distinction between issuing a license with a heightened
monitoring condition versus placing an already operating childcare facility on
heightened monitoring. Appellant’s retroactive application of the applicable statute
and TAC provision is unlawful and is an egregious attempt to abridge the very
exacting and rigorous showing required to place an already operating childcare
facility on heightened monitoring. After issuing the licenses to Appellees,
Appellants must establish a pattern of violations that meet the criteria for
heightened monitoring as set forth in the federal court order for M.D. v Abbott
litigation. See M.D. v. Abbott, 2:11-cv-00084, (S.D. Tex.). Appellees’ subject
operations do not have such a pattern of violations Iin fact there is no evidence at
all of violations cited by Appellants) and therefore they cannot be placed on
heightened monitoring.
LEGAL BASIS FOR JURISDICTION: Appellees reference and replicate all
factual basis cited directly above as if recited verbatim here. Based on the
foregoing facts and arguments Appellees have alleged the following claims, both
of which give Appellee jurisdiction and both of which are recognized waivers of
sovereign immunity.
17 Declaratory Relief Under Tx. Govt. Code § 2001.038. Section 2001.038
of the Government Code creates a cause of action for declaratory judgment
regarding the validity or applicability of a rule and is a grant of original jurisdiction
and, moreover, waives sovereign immunity, as to a suit brought by a Appellee
alleging that a rule interferes with or impairs its legal right or privilege. Texas
Department of Insurance v. Texas Association of Health Plans (Tex.App.-Austin
2020) 598 S.W.3d 417. Appellees restate all the facts in paragraphs 11 through 15
herein as if replicated verbatim here. Based on these facts Appellees allege that the
applicability of the TAC provision to this circumstance interferes with its legal
rights to run TRELS Home LLC and TRELS Home for Children.
Uniform Declaratory Judgment Act as to Individual Appellants in their
Official Capacities. Chapter 37 of the Texas Civil Practice and Remedies Code
applies against individual state agents in their official capacities when the actions
they take are “ultra vires”. Claims brought under the Uniform Declaratory
Judgment Act (UDJA) for declaratory or injunctive relief against actions taken by
a governmental official beyond his discretion or without legal authority, known as
ultra vires actions, do not implicate governmental immunity. Collier v. Suhre,
(Tex.App.-Hous. (1 Dist.) 2020) 605 S.W.3d 699. Appellees restate all the facts in
paragraphs 11 through 15 herein as if replicated verbatim here. Based on these
facts Appellees allege that Cecile Erwin Young and Laura Castillo have acted ultra
18 vires by applying the operative statute and TAC provision in a manner not allowed
by their express language. The operative statute and the TAC provision apply only
to issuance of a license and not to ongoing operations after said issuance. As such
Appellants’ use of the operative statute and TAC provision against an ongoing
operation is unlawful and ultra vires. Appellees seek declaratory relief declaring
that these individual actors are taking unlawful and unauthorized actions not
supported by the operative statute or even by their own TAC provision. Appellees
also seek attorney’s fees.10
Based on all the foregoing it is completely obvious from the face of
Appellees’ pleadings that they have alleged sufficient facts and law to confer
jurisdiction over Appellants. Appellants retroactively and after issuing Appellees’
licenses placed a designation of heightened monitoring on Appellees’ already
operating and licensed childcare facilities. They cannot do that. When asked what
their authority was for such an egregious and unlawful act Appellants cited two
provisions that have to do with issuing licenses. But, as stated ad nauseum in this
pleading and in their Petition, Appellees’ licenses had already been issued. As
such, Appellants’ alleged legal basis for their action is plainly inapplicable. As
such Appellees sue Appellants because Appellants application of the cited
regulations is without any legal basis (and are in fact hostile, careless, and
10 See, for example, Cameron County Appraisal District v. Rourk, 2016 WL 380309 (Tex. App. –
Copus Christi) (2016). 19 unconstitutional). Appellees’ remedies under the Texas Government Code and the
Declaratory Judgment Act are express waivers of sovereign immunity and the
valid, applicable case citations standing for this very proposition are plainly laid
out in Appellees’ petition. There is no realistic or serious question about
jurisdiction here.
Give that appellate review and review in general for jurisdictional purposes
concerns the face of the pleadings and is not a weighing of the merits of the
arguments or acts of the Appellee, no additional content or argument is needed to
defeat Appellant’s appeal. But, out of an abundance of caution, Appellee does note
that Appellant is indeed arguing about the merits of the claims and while that is
premature and improper when assessing jurisdiction Appellee does want to address
those arguments in at least a summary fashion. This summary review of
Appellant’s merits-based arguments is not new and the basis for same has been in
almost every pleading filed by Appellee and all of this is based on the content of
the appellate record. With that preface, it appears Appellant is making three
distinct (yet false and unsupported) arguments about why the plea to the
jurisdiction should have been granted and those three arguments are:
i) Appellant says that “issuance” of a license is some kind of ongoing
process that lasts for some unprescribed duration of time during which
Appellants can take any action they want (including unlawfully
20 placing conditions liked “heightened monitoring” on an. Already
issues license);
ii) Appellant says that Appellant’s actions are justified due to “linkage”;
and,
iii) Appellant says that Appellee’s claim of damages is conclusory and
that as a subset of this same argument that Appellee admits Appellant
cannot be held liable for “damages”.
Appellee will address each of these in turn below but without waiving what it has
already previously stated in the Clerk’s Record (ex. CR 61-63) that the plea to the
jurisdiction has nothing to do with the ultimate merits of the claims but merely that
the pleadings state a cause of action conferring jurisdiction on the trial court to
decide the matters plead.
i) Regarding (i) above, there is no statutory support at all for
Appellant’s claim that there is some period of time where a license is
“initial” after issuance before it is “full” and that before a license is
“full” the license has not yet been “issued” so Appellant can do
whatever it wants during this time period. Texas Human Resources
Code Chapter 42 is the operative statute at play. The only mention in
that statute of an “initial” license (See, 42.051 of the Texas Human
Resources Code) is discussing exactly that – the FIRST license issued
21 to a facility (not “probationary” not “conditional” but merely “initial”
meaning the first license). This is clear because the preceding section
(42.050) discusses license “renewal” meaning renewing a license after
the initial issuance. Texas law does not support or allow Appellants’
fiction of some undefined period of time after issuance of a license
where that license can be assailed and conditioned before a “full”
license is issued. This concept of “initial” license was created by
Appellants in TAC Chapter 745 without any authority. The operative
statute (Texas Human Resources Code chapter 42) discusses “initial”
license only in the sense that it is the first license issued to a facility;
there is no authority or support for the concept that Appellants can
divide licensing into “initial” and “full” and then create some
nebulous time frame where Appellant can simply place any condition
or take any action it wants in violation of Texas law. But, be all that as
it may, Appellants have already admitted in writing as an Exhibit in
Reporter’s Record, Volume 3, Plaintiffs Exhibit 1 (P-001) that their
support for retroactively conditioning Appellee’s licenses as
“heightened monitoring” was TAC 745.497 (See March 20, 2025
email from Laura Castillo to Taneshu Collier in P-001). TAC 745.497
is express and clear that any condition added to a license must be
22 added to the “initial” license at issuance. Appellees have cited this
TAC provision and its express wording again and again and it is
undeniable that TAC 745.497 says that the condition of heightened
monitoring must be applied on the “initial” license and at issuance.
Even Appellants’ own handbook (section 3424.5) says that a
condition of heightened monitoring must be added on the “initial”
license prior to issuance. (See, Reporter’s Record, Volume 3, P-005
which is 3424.5 of Appellant’s own handbook which again states that
the condition of heightened monitoring must be applied on the
“initial” license before issuance). So, Appellant’s entire argument
(while false, unlawful, and misleading) is completely irrelevant
because their own TAC and handbook are clear that a condition of
heightened monitoring must be added on the “initial” license at or
prior to issuance. Appellant’s own argument impliedly admits again
and again that Appellees had an “initial” license already but just not a
“full” license. But, Appellant’s very own TAC and handbook say that
the condition of heightened monitoring must go on the “initial”
license, so Appellants have really “shot themselves in the foot” here.
To be clear, Appellee argues that Appellant’s TAC creation of this
“initial” license and “full” license concept is unlawful to begin with,
23 but it does not even matter because Appellant’s cited authority for
placing the condition on Appellee’s license says that the condition
must be placed on the “initial” license. There is no fact dispute that
Appellants issued an “initial” license11. Appellants issued an “initial”
license, and they did not include a condition of heightened monitoring
so they cannot retroactively designate said condition thereafter. This
entire argument based on a fiction created by Appellant of “initial”
license versus “full” license is completely eviscerated by its own TAC
and handbook both of which require heightened monitoring to be
added to the “initial” license.
ii) Regarding (ii) that Appellants rely on “linkage” to designate the
condition fails for the very same reason as their justification for same
is the exact same, TAC 745.497. So, this argument is “dead on
arrival” because Appellant’s legal support requires the designation on
the “initial” license and that was not done. Furthermore, the cited
handbook section (P-005) is directly applicable to “linkage” and says
the exact same thing that the condition of heightened monitoring must
be placed on the “initial” license before issuance. Even Appellants do
11 Reporters Record, Volume 3, Pages 16-39, which are Exhibit P-007 through P-010, show the
actual licensing documents and the summary of a timeline which was admitted to evidence without objection and all of which shows Appellants issued the initial licenses without any conditions at all 24 not try to argue that Appellees were never issued initial licenses. It is
undisputed that Appellees were issued initial licenses with no
conditions.
iii) Regarding (iii) that Appellee’s harm or damage is conclusory, and
Appellee’s have already agreed that Appellants are not liable for
“damages”, these arguments are similarly unfounded. Both in the
Reporter’s Record (Volume 2, Pages 44-52) and in Appellee’s own
pleadings (CR 5-8) Appellees allege very specific facts about the
additional and unlawful burden placed on the subject operations
because of heightened monitoring even differentiating between what
is typical of licensing (Appellants) without heightened monitoring and
what is different from typical because of heightened monitoring. CR
5-8 is Appellee’s verified pleading and the Reporter’s Record citation
(Volume 2, 44-52) is Taneshu Collier’s own sworn testimony about
the effect that heightened monitoring has on her facilities, her staff,
and most importantly on the kids in her care (See also, Reporter’s
Record, Volume 2, pages 29-30, where Ms. Taneshu Collier describes
the high risk kids she fosters and the trauma they have already
endured in life). So, Appellees have provided very specific facts that
are not at all conclusory. Furthermore, please note, again, that these
25 arguments from Appellant are really merit based and have no place in
an analysis regarding jurisdiction; please also note that no discovery
has taken place because Appellant’s have evaded discovery thus far so
to say Appellees’ facts are conclusory is quite diabolical because first
of all it is not true, secondly it is a merit based argument and is
misplaced, but thirdly Appellants have evaded discovery and will not
answer the propounded discovery sent by Appellees months ago.
Appellants also have made the incredible argument that “damages”
and “liability” are the same thing and that Appellees admit Appellants
are not liable for “damages” so Appellants also have no liability in
general. Of course, the Court will already understand that “damages”
means money damages. Other than the attorney’s fees Appellees hope
to receive (because they have had to spend tens of thousands of
dollars at this point) Appellees realize that Appellants will not have to
pay money damages for the harm they have caused but in no way
have Appellees said they are not entitled to relief. Appellees forward
the very causes of action recounted herein and ask the Court to enjoin
Appellants and to declare that Appellants are acting in an “ultra vires”
fashion. Relief is not constrained to money damages; as the Court is
aware there are many forms of relief and Appellees obviously seek
26 that relief that is available even if the Appellants cannot be forced to
pay them money (other than the attorney’s fees Appellees plead for)
for the harm Appellant has caused. Finally, Appellants have indicated
that because Appellees’ activity is licensed by the State that Appellees
have no rights, this is simply untrue. As the court is aware the right to
life, liberty, and pursuit is guaranteed in Texas and must be kept free
from unreasonable restraints. See, for example, Patel v. Texas
Department of Licensing and Regulation, 469 SW3d 69 (Tex. 2014).
Appellants’ bare conclusion that because Appellees’ business is
regulated they have no rights is simply wrong.
Finally, also please note that Appellant’s brief goes into great detail about the
individual Defendant/Appellants Young and Castillo and goes so far as to state that
“at the hearing on the Appellants’ plea to the jurisdiction” Appellees did not put
on “evidence” that Young or Castillo have taken any ultra vires actions; this is
completely non-sensical for all the reasons previously stated – a plea to the
jurisdiction is a pleading based proceeding that does not weigh evidence and is not
concerned with the merits. That Appellants would base any aspect of its current
appeal on a lack of evidence is astounding not only because a plea to the
jurisdiction has nothing to do with merits and evidence but also because Appellants
themselves are evading and obfuscating discovery. Please also consider that the
27 ultra vires actions Young and Castillo are taking are the very actions Appellees
have ceaselessly and in great detail already described which is that each of them
have placed a condition of heightened monitoring on Appellees operations without
any lawful authority and furthermore the individual Defendants have enforced and
driven and applied the intense procedures of heightened monitoring against
Appellee for almost a year without any authority at all. Please also note that
Reporters Record, Volume 2, pages 62-69 contain Ms. Castillo’s own sworn
testimony where she admits she is enforcing heightened monitoring against
Appellees and she was responsible for placing the unlawful condition of
heightened monitoring. As the Court is aware, claims brought under the Uniform
Declaratory Judgment Act for declaratory or injunctive relief against actions taken
by a governmental official beyond his discretion or without legal authority, known
as ultra vires actions, do not implicate governmental immunity. See Hous. Belt &
Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016); see also,
Collier v. Suhre, 605 S.W.3d 699, 703 (Tex. App. 2020). In other words, if an act
is ultra vires, it is done outside of the powers and responsibilities of the State, and a
challenge to the act is not a challenge to the State and its officers in the
performance of their duty. See City of El Paso v. Heinrich, 284 S.W.3d 366, 370
and 372 (Tex. 2009). An official who commits an ultra vires act is not immune
from suit because “[a] state official's illegal or unauthorized actions are not acts of
28 the State.” Id. at 370 (quoting Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 404
(Tex. 1997)); see also, Patel v. Texas Department of Licensing and Regulation,
469 SW3d 69 (Tex. 2014) (“In Heinrich we decided that sovereign immunity does
not prohibit suits brought to require state officials to comply with statutory or
constitutional provisions [when such a suit alleges] that a state official acted
without legal authority or failed to perform a purely ministerial act, rather than
attack the officer's exercise of discretion”). So, to say that Appellees individual
claims against Castillo and Young lack detail and are cursory is indefensible
because Appellants won’t respond to discovery or allow discovery to proceed, the
motions and hearings thus far have been subsumed largely by Appellants
jurisdictional plea which has nothing to do with the merits or evidence, and
Appellees have described in great detail the unlawful actions of the State which are
credibly ascribed to Young and Castillo in large part. In fact the only aspect of the
trial court case not concerned with jurisdiction was Appellee’s request for
temporary injunction which was granted because there is substantial evidence of
irreparable harm but none of that evidence was necessarily individually directed at
Young or Castillo and did not need to be because Appellees simply needed the
broad relief of injunction and did not need to develop its entire case to get this
relief.
29 • Argument Regarding Temporary Injunction Appellant spends all of about 3.5 pages of its 58-page brief discussing the
temporary injunction and “bets the farm” on its jurisdictional arguments. Appellant
did not object to any of Appellee’s evidence in the trial court and made whatever
arguments it tried to make in opposition of temporary injunction and lost. Abuse of
discretion is a very high burden for Appellant to overcome and Appellant has not
spent any material amount of time or made any material statements in support of
appealing same. In opposition of Appellant’s dearth of argument on this point,
please consider, as this Court notes in Texas Education Agency v. Houston
Independent School District, 609 SW3d 569 (Tex. App. – Austin) (2020)
(hereinafter “TEA”): “By its very nature, a request for injunctive relief involves a
party's assertion that if the opposing party's actions are not enjoined, it will suffer
irreparable harm. In this particular case, the trial court has concluded that the
District made a sufficient showing to establish a probable right to recovery on its
ultra vires claims. It further concluded that the District made a sufficient showing
that the alleged ultra vires conduct would cause irreparable harm because once the
Commissioner performs a final administrative act, even if it is ultra vires, it would
not be reviewable by an appellate court”. Id at 577. Here Appellees have the exact
same circumstances. The trial court did in fact make all those very same findings
as described by the TEA court. So, without belaboring the issues already raised
30 Appellee would simply point out that the trial court examined the evidence in the
Clerk’s Record and the Reporter’s Record and based on the evidence therein
(documentary and testimonial) concluded that Appellees did in fact deserve relief
and satisfied all factors. Furthermore, as this Court is aware, Appellees sought
relief from this Court under Tex. R. App. Proc. 29.3 based on this same reasoning
and law and this Court agreed in that particular motion with Appellee’s reasoning
and granted said relief. At page 30 of its brief Appellees make the conclusory
statements that Appellants “have not met their burden”, do not “have a probable
right to recovery”, do not have “imminent” harm or “irreparable injury”. Appellee
even goes so far as to say because Appellants are not complaining about
heightened monitoring at a third, uninvolved location we could not possibly
complain of heightened monitoring at the two subject locations; this is ridiculous
as the third, uninvolved location was lawfully placed on heightened monitoring in
accord with the procedures and standards in Stukenberg v. Abbott, 509 F.Supp. 3d
683 at 794 (US Dist. Ct. – Copus Christi) (2020), if anything this lends credibility
to Appellee and does not detract from the force and accuracy of its legal arguments
herein. Appellees do not complain about the uninvolved operation because it was
lawfully conditioned. Also, it is of course a logical fallacy to conclude that if
Appellees can deal with the intense scrutiny of heightened monitoring at one
location surely it can handle it three locations thus tripling the current burden. The
31 only other argument made by Appellant is that the “status quo” is maintaining the
unlawful and egregious condition of heightened monitoring which is ridiculous and
as this Court already noted in is decision regarding Tex. R. App. Proc. 29.3,
Appellants have produced no evidence at all that children are in any danger at
Appellees’ operations, in fact, to the contrary, all Appellants have found is that
Appellees run good operations and take their duties to Texas children in need very
seriously. To conclude, other than baseless and unsupported statements Appellants
have not made any effective arguments against the trial court’s ruling in favor of
Appellants granting the temporary injunction.
C. CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellees respectfully prays
that this Court:
• Affirm the trial court’s denial of Appellants’ plea to the jurisdiction;
• Affirm the trial court’s grant of Appellee’s request for temporary injunction;
• Assess costs and attorney’s fees against Appellant as supported by the trial courts express order from November 4, 2025; and
• Grant Appellee such other and further relief, general and special, legal and equitable, to which Appellee may be justly entitled.
Respectfully submitted,
/s/ John Ferguson John Ferguson
32 Texas State Bar No. 24066597 john@fergusonlawpractice.com Kyle Ann Ferguson Texas State Bar No. 24065223 kyle@fergusonlawpractice. com Ferguson Law Practice PLLC 1017 RR 620 S, Ste 222 Austin TX 78734 Tel: (512) 996-5407 Fax: (737) 208-1931 Counsel for Appellee
Certificate of Compliance Pursuant to Tex. R. App. P. 9.4(e), the document complies with the typeface requirements of Texas Rules of Appellate Procedure because it has been prepared in a conventional typeface no smaller than 14-point for text. The document also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains 8,543 words according to the word count feature of Microsoft Word, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
Certificate of Service
I hereby certify that I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Eight Circuit through the appellate CM/ECF system on January 5, 2025. All participants in the case are registered CM/ECF users and will be served through the appellate CM/ECF system, including to the following:
Kelsey Hanson Texas Bar No. 24096654 Assistant Attorney General PO Box 12548, Capital Station Austin, Texas 78711-2548 Tel: (737) 224-1244 /s/ John Ferguson Fax: (512) 320-0667 John Ferguson Kelsey.hanson@oag.texas.gov
33 34 4834-3880-7039 v1 [75835-5] 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.
John Ferguson Bar No. 24066597 john@fergusonlawpractice.com Envelope ID: 109688996 Filing Code Description: Brief Requesting Oral Argument Filing Description: Appellees Response Brief Status as of 1/6/2026 9:25 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Karen De Alejandro karen@fergusonlawpractice.com 1/6/2026 9:19:39 AM SENT
Chelsea Goodman chelsea.goodman@oag.texas.gov 1/6/2026 9:19:39 AM SENT
Kelsey Hanson kelsey.hanson@oag.texas.gov 1/6/2026 9:19:39 AM SENT
Kyle Ferguson kyle@fergusonlawpractice.com 1/6/2026 9:19:39 AM SENT
John Ferguson john@fergusonlawpractice.com 1/6/2026 9:19:39 AM SENT
Meghan Rudnai meghan@fergusonlawpractice.com 1/6/2026 9:19:39 AM SENT