Texas Health and Human Services Commission v. Jessica Lukefahr

Opinion

ACCEPTED 03-15-00325-CV 8371741 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/28/2015 9:57:31 AM JEFFREY D. KYLE CLERK No. 03-15-00325-CV _______________________________________________________________ FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS 12/28/2015 9:57:31 AM AT AUSTIN JEFFREY D. KYLE Clerk _______________________________________________________________

TEXAS HEALTH AND HUMAN SERVICES COMMISSION Appellant,

v. JESSICA LUKEFAHR Appellee. ________________________________________________________________

On Appeal from the 345th Judicial District Court of Travis County, Texas Cause No. D-1-GN-14-002158 The Honorable Stephen Yelenosky Presiding __________________________________________________________________

APPELLANT’S OPPOSED MOTION TO STRIKE MATERIAL OUTSIDE THE RECORD __________________________________________________________________

KEN PAXTON KARA HOLSINGER Attorney General of Texas Assistant Attorney General State Bar No. 24065444 CHARLES E. ROY OFFICE OF THE ATTORNEY GENERAL First Assistant Attorney General OF TEXAS Administrative Law Division JAMES E. DAVIS P.O. Box 12548, Capitol Station Deputy Attorney General for Civil Austin, Texas 78711-2548 Litigation Telephone: (512) 475-4203 Facsimile: (512) 320-0167 DAVID A. TALBOT, JR. kara.holsinger@texasattorneygeneral.gov Chief, Administrative Law Division COUNSEL FOR APPELLANT TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Appellant Texas Health and Human Services Commission

(“HHSC”) and files this Opposed Motion to Strike Material Outside the Record.

Appellee’s Response Brief of December 17, 2015 includes “Appendix B,” which is

a partial transcription of an electronic recording of a Health and Human Services

Commission Medical Care Advisory Committee meeting of June 9, 2015. HHSC

moves to strike Appendix B, and those portions of Appellee’s Reply Brief that rely

on Appendix B, because it was not presented to or relied on by the trial court in

rendering its judgment. Appendix B is not part of the Clerk’s Record or otherwise

made a part of the record on appeal.

Texas Rule of Appellate Procedure 34.1 states that “[t]he appellate record

consists of the clerk’s record and, if necessary to the appeal, the reporter’s record.”

Appendix B does not appear in, nor is it referenced in, any pleading that is a part of

the clerk’s record. This Court may only review the record as filed and may not

consider documents that are not in the record and were not considered by the trial

court. Warriner v. Warriner, 394 S.W.3d 240, 254 (Tex. App.—El Paso 2012, no

pet.) (“Appellate courts cannot review documents not included in the record.

Documents attached to a brief as an exhibit or an appendix, but not appearing in

the record, cannot be considered on appellate review, save for limited exceptions

not relevant here.”); Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex.

App.—Dallas 2005, pet. denied) (“[A]n appellate court cannot consider documents or hearings that are cited in the brief and attached as appendices if they are not

formally included in the record on appeal.”). As Appendix B does not appear in the

record, this Court should not consider it.

PRAYER

Accordingly, as Appendix B to Appellee’s Response Brief of December 17,

2015 consists of material not included in the record on appeal, this Motion to

Strike should be granted and the Court should not consider Appendix B or the

arguments in Appellee’s Response Brief supported by this document.

Respectfully submitted,

KEN PAXTON Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

JAMES E. DAVIS Deputy Attorney General for Civil Litigation

DAVID A. TALBOT, JR. Chief, Administrative Law Division

/s/ Kara Holsinger KARA HOLSINGER Assistant Attorney General State Bar No. 24065444 Office of the Attorney General of Texas Administrative Law Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548

2 Telephone: (512) 475-4203 Facsimile: (512) 320-0167 kara.holsinger@texasattorneygeneral.gov Attorneys for Appellant

CERTIFICATE OF CONFERENCE

The undersigned counsel for Appellant certifies that she has conferred with

counsel for Appellee regarding the foregoing Motion to Strike and has been

advised that Appellee opposes the motion.

/s/ Kara Holsinger KARA HOLSINGER

CERTIFICATE OF SERVICE

A true and correct copy of the foregoing Motion to Strike was served via e-

serve and e-mail on this the 28th day of December, 2015, to the following:

Maureen O’Connell Texas Bar No. 00795949 Southern Disability Law Center 1307 Payne Avenue Austin, Texas 78757 Telephone: 512-458-5800 Facsimile: 512-458-5850 moconnell458@gmail.com

Attorney for Appellee /s/ Kara Holsinger KARA HOLSINGER Assistant Attorney General