The State of Texas v. Nonparty Patient No. 1, Nonparty Patient No. 2, Nonparty Patient No. 3, Nonparty Patient No. 4, Nonparty Patient No. 5, Nonparty Patient No. 6, Nonparty Patient No. 7, and Nonparty Patient No. 8, Nonparty Patient No. 9, Nonparty Patient No. 10, and Nonparty Patient No. 11

Opinion

ACCEPTED 15-25-00023-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 5/5/2025 7:23 PM NO. 15-25-00023-CV CHRISTOPHER A. PRINE CLERK In the Court of Appeals for the Fifteenth Judicial DistrictFILED IN Austin, Texas 15th COURT OF APPEALS AUSTIN, TEXAS 5/5/2025 7:23:25 PM State of Texas, CHRISTOPHER A. PRINE Appellant Clerk

v.

Nonparty Patient No. 1, Nonparty Patient No. 2, Nonparty Patient No. 3, Nonparty Patient No. 4, Nonparty Patient No. 5, Nonparty Patient No. 6, Nonparty Patient No. 7, Nonparty Patient No. 8, Nonparty Patient No. 9, Nonparty Patient No. 10, and Nonparty Patient No. 11,

Appellees.

On Appeal from the 95th Judicial District Court of Dallas County Cause No. 25-DC-01823

BRIEF FOR APPELLEES

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

ORAL ARGUMENT REQUESTED Hollie M. Albin (pro hac vice forthcoming) D.C. Bar No. 90029285 hmalbin@winston.com WINSTON & STRAWN LLP 1901 L Street N.W. Washington, D.C. 20036 Telephone: (202) 282-5000

David Phillips (pro hac vice forthcoming) N.Y. Bar No. 6175863 dphillips@winston.com WINSTON & STRAWN LLP 200 Park Avenue, 43rd Floor New York, NY 10166 Telephone: (212) 294-6700

ii TABLE OF CONTENTS Page INTRODUCTION .....................................................................................................1 STATEMENT OF FACTS .........................................................................................2 SUMMARY OF THE ARGUMENT ......................................................................... 4 ARGUMENT .............................................................................................................9 I. THE STATE DOES NOT ENJOY SOVEREIGN IMMUNITY FROM THE DALLAS COUNTY PROCEEDINGS. ...............................................10 A. The Texas Supreme Court has held that the Rules apply to the State unless a carveout provision exists; here, there is no carveout provision. .............................................................................................10 B. Texas Government Code § 22.004(a) and Rules of Civil Procedure 815 and 816 make clear that sovereign immunity is an inapt framework for this dispute. .................................................................15 C. The Court should not extend sovereign immunity to Rule 176.6(e) and 192.6(a) proceedings in a parallel court. ......................................17 1. The sovereign immunity analysis involves a two-step analysis, which the State ignores in its brief.............................18 2. The Nonparty Patients’ Dallas County litigation does not present an undue threat to the public fisc. ................................21 3. Applying Rule 176.6(e) to the State would preserve the separation of powers. ................................................................23 4. There is no common-law tradition of extending sovereign immunity to parallel discovery disputes involving a subpoena....................................................................................25 5. The State’s focus on Reata and Nazari is misplaced—those cases concerned counterclaims for which a money judgment would be entered, not an evidentiary privilege. ........................26 D. Even if sovereign immunity did exist for this particular proceeding, the Legislature has waived it. ..............................................................27 1. Rule 176.6(e) would be meaningless unless immunity were waived. ......................................................................................28 2. Rule 176.6(e) contains no ambiguities, so the Court cannot resolve a nonexistent ambiguity in the State’s favor. ............... 29

iii 3. Rule 176.6(e) presumes State participation. .............................29 4. The Rule contains built-in protections that limit the State’s exposure. ...................................................................................30 II. THE NONPARTY PATIENTS NEVER RAISED A CHALLENGE ON BEHALF OF THE UNREPRESENTED PATIENTS ...................................31 PRAYER ..................................................................................................................32

iv TABLE OF AUTHORITIES

Page(s)

Cases 5653.041 Acre Ranch, L.P. v. Lewis-Watkins-Farmer Agency, 2022 WL 1479477 (Tex. App.—Austin May 11, 2022, no pet.) .......................16 Alexander v. City of Syracuse, 132 F.4th 129 (2d Cir. 2025) ................................................................................ 2 Bednarz v. State, 176 S.W.2d 562 (1943) .......................................................................................11 Canutillo Indep. Sch. Dist. v. Olivares, 917 S.W.2d 494, 498 (Tex. App.-El Paso 1996, no writ) ..................................11 Carrasco v. Tex. Transp. Inst., 908 S.W.2d 575 (Tex. App.—Waco 1995, no writ)...........................................11 City of Conroe v. San Jacinto River Auth., 602 S.W.3d 444 (Tex. 2009) ..............................................................................19

City of Dallas v. Albert, 354 S.W.3d 368 (Tex. 2011) ..............................................................................19

City of Dallas v. Dallas Black Fire Fighters Ass’n, 353 S.W.3d 547 (Tex. App.—Dallas 2011, no pet.) ..........................................16

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ..............................................................................19

Conn. Nat’l Bank v. Germain, 503 U.S. 249 (1992) ............................................................................................27

Davis v. City of San Antonio, 752 S.W.2d 518 (Tex. App.—San Antonio 1988, no writ) ................................11

In re E.M., 665 S.W.3d 832 (Tex. App.—Houston [14th Dist.] 2023, no pet.) ................... 11 Fireman’s Ins. Co. v. Burch, 442 S.W.2d 331 (Tex. 1968) ..............................................................................30 v Henderson v. Shanks, 449 S.W.3d 834 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).................................................................................................................27

Hidalgo Cnty. Water Improvement Dist. No. 3 v. Hidalgo Cnty. Irrigation Dist. No. 1, 669 S.W.3d 178 (Tex. 2023) ......................................... 15, 18, 19, 20, 21, 24, 25

Lewis v. State, 693 S.W.3d 453 (Tex. App.—Houston [14th Dist.] 2023, pet. denied).................................................................................................................23 Lowe v. Tex. Tech. Univ., 540 S.W.2d 297 (Tex. 1976) ..................................................................11, 14, 23 Nazari v. State, 561 S.W.3d 495 (Tex. 2018) ............................................................13, 15, 25, 26 PHI, Inc. v. Tex. Juv. Just. Dep’t, 593 S.W.3d 296 (Tex. 2019) ................................................................................ 8 Phillips v. McNeill, 635 S.W.3d 620 (Tex. 2021) ..............................................................................17

Producers’ Oil Co. v. State, 213 S.W. 349 (Tex. App.—San Antonio 1919, no writ.) ...................................10 Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006) ......................... 5, 13, 15, 17, 18, 20, 21, 25, 26, 28 State v. Naylor, 466 S.W.3d 783 (Tex. 2015) ..........................................................4, 5, 11, 12, 14

Tex. Adjutant’s Gen.’s Off. v. Ngakoue, 408 S.W.3d 350 (Tex. 2013) ..............................................................................13 Tex. Credit Co. v. O’Farrell, 177 S.W.2d 331 (Tex. App.—Galveston 1944, no writ.) ...................................17

Tex. Dep’t of Corr. v. Herring, 513 S.W.2d 6 (Tex. 1974).........................................................4, 5, 11, 12, 14, 23

vi Tex. Dep’t of Hum. Servs. v. Green, 855 S.W.2d 136 (Tex. App.—Austin 1993, writ denied), superseded by statute on other grounds, Neighborhood Ctrs. Inc. v. Walker, 544 S.W.3d 744 (Tex. 2018) .................................................................11

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ................................................................................ 8

Texas Co. v. State, 281 S.W.2d 83 (Tex. 1955).........................................................10, 12, 14, 23, 28

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003) ............................................. 7, 9, 20, 26, 27, 28, 29

Statutes Expedited Declaratory Judgment Act ......................................................................19 Tex. Bus. & Com. Code § 17.47(a) ........................................................................... 2

Tex. Bus. & Com. Code § 17.47(c)(1)....................................................................... 2 Tex. Civ. Prac. & Rem. Code § 101.025(a) .............................................................26 Tex. Deceptive Trade Practices Act.....................................................................2, 14 Tex. Gov’t Code § 22.004(a) .................................................. 5, 9, 10, 14, 15, 17, 22

Tex. Gov’t Code § 22.004(b) ...................................................................................23

Tex. Gov’t Code § 74.024(c)(6) ..............................................................................22 Tex. Gov’t Code § 74.024(d) ...................................................................................23

Tex. Gov’t Code § 311.034......................................................................................19

Tex. Health & Safety Code § 161.706 ....................................................................... 2 Other Authorities

William V. Dorsaneo III, The History of Texas Civil Procedure, 63 Baylor L. Rev. 713 (2014) ..................................................................................23

vii Justice Nathan L. Hecht, Justice Jane N. Bland, et al., How Texas Court Rules Are Made, Texas Supreme Court, https://www. txcourts.gov/media/1374851/How-Court-Rules-Are-Made.pdf ........................23

Tex. Const. art. V, § 31(b) .......................................................................................22

Tex. R. Civ. P. 5 .......................................................................................................15

Tex. R. Civ. P. 33 .....................................................................................................16

Tex. R. Civ. P. 38(a) ................................................................................................16

Tex. R. Civ. P. 40 .....................................................................................................17 Tex. R. Civ. P. 47(a) ................................................................................................14 Tex. R. Civ. P. 58 .....................................................................................................15

Tex. R. Civ. P. 67 .....................................................................................................11 Tex. R. Civ. P. 74(a) ................................................................................................14 Tex. R. Civ. P. 90 .....................................................................................................11

Tex. R. Civ. P. 94 .....................................................................................................11 Tex. R. Civ. P. 168 ...................................................................................................11 Tex. R. Civ. P. 169 ...................................................................................................11 Tex. R. Civ. P. 176.6(e) .................. 1, 2, 3, 4, 7, 9, 12, 17, 22, 23, 24, 26, 27, 28, 29

Tex. R. Civ. P. 192.6(a) .................................................................................2, 12, 17

Tex. R. Civ. P. 192.6(b) ...........................................................................................12

Tex. R. Civ. P. 202 ...................................................................................................16 Tex. R. Civ. P. 299 ...................................................................................................11

Tex. R. Civ. P. 815 .........................................................................5, 9, 10, 14, 15, 17 Tex. R. Civ. P. 816 .................................................................. 5, 9, 10, 14, 15, 16, 17

Tex. R. Evid. 509 .................................................................................................2, 12

viii Tex. R. Evid. 510 .................................................................................................2, 12

ix STATEMENT OF THE CASE

Nature of the Case: After the State served two subpoenas in Dallas County, eleven Nonparty Patients challenged the breadth of those subpoenas in the same county. CR.233. The Nonparty Patients argued the State improperly sought records protected by the physician-patient privilege and mental health information privilege. CR.234; see also Tex. R. Evid. 509, 510.

Trial Court: 95th Judicial District Court, Dallas County The Hon. Monica McCoy Purdy

Course of the Proceedings: The State filed a plea to the jurisdiction and a plea in abatement, arguing that (1) sovereign immunity shielded it from any Dallas County court proceeding, and (2) a Collin County court’s dominant jurisdiction precluded the Dallas County court from issuing any ruling. CR.340.

Disposition of the Trial The trial court denied the State’s pleas during a Court: hearing. CR.401; RR.36. The court then heard argument on the Nonparty Patients’ petition for protection. RR.36. In the middle of that proceeding, the State filed an interlocutory appeal, and the trial court stayed all production obligations under the subpoenas. CR.402–03, 426; RR.56, 58, 60–61, 63, 66.

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).

x ISSUES PRESENTED

1. When the State initiates a lawsuit, do the Texas Rules of Civil Procedure and Rules of Evidence presumptively apply to it?

2. When the State initiates a lawsuit in one county and a nonparty initiates a Rule 176.6(e) proceeding in another county, does sovereign immunity shield the State from the second proceeding, even though the Rule expressly authorizes the second proceeding?

3. Assuming sovereign immunity attaches to the second proceeding as a matter of common law, has the Legislature waived immunity?

4. Did the Nonparty Patients formally challenge the State’s subpoenas on behalf of the unrepresented patients, or did they merely raise concerns in their capacity as officers of the court with a duty of candor?

xi INTRODUCTION

At its core, this appeal involves a straightforward question about venue.

Relevant here is Texas Rule of Civil Procedure 176.6(e). Under that Rule, a nonparty

who wants to challenge a subpoena can do so in one of two places: the county of

service, or the county where the underlying lawsuit originated. Tex. R. Civ. P.

176.6(e). Here, the Nonparty Patients chose the county of service. So far, so good.

But what should have been a routine discovery dispute argued in Dallas has

become unnecessarily complicated. Even though the Nonparty Patients adhered to

Rule 176.6(e)’s venue provision, the State claims their choice of venue should be

disregarded under an incoherent theory of sovereign immunity. Br. at 6–10. The State

mistakenly believes that when it acts as a plaintiff, sovereign immunity protects it

from any Rule 176.6(e) proceeding, and the only valid forum for a Rule 176.6(e)

challenge is the county where the State originally filed suit. RR.15; Br. at 10. But

the State has identified no authority that says sovereign immunity allows the courts

to give credence to only half of Rule 176.6(e)’s venue provision and ignore the other

half. Id. In fact, numerous authorities—including precedent from the Texas Supreme

Court—say otherwise.

The Court should not adopt the State’s flawed interpretation, and it should

affirm the court below.

1 STATEMENT OF FACTS

The facts underlying this appeal are straightforward. In 2024, the State sued

Dr. May C. Lau in Collin County, alleging that she violated SB 14 and the Texas

Deceptive Trade Practices Act (“DTPA”) when she provided gender-affirming care

to 21 minors and billed insurance entities for that care. CR.43–44, 52, 69. Relevant

here, the State sought $10,000 in civil penalties for each DTPA violation and

injunctive relief. CR.75; see Tex. Health & Safety Code § 161.706 (authorizing

injunctive relief for SB 14 violations); Tex. Bus. & Com. Code § 17.47(a), (c)(1)

(same, but civil penalties and injunctive relief for DTPA violations).

To gather discovery for its case, the State subpoenaed two hospitals to obtain

the medical records of 21 patients. CR.22, 27–28, 31, 36–37.1 The State served the

subpoenas in Dallas County, and, consistent with Rule 176.6(e), eight patients filed

an original petition for protection in that County. CR.11, 22, 31; see Tex. R. Civ. P.

176.6(e). This pleading invoked the privacy protections guaranteed by Texas’s

physician-patient privilege and mental health information privilege. CR.12; Tex. R.

Evid. 509, 510. It also cited Texas Rules of Civil Procedure 176.6(e) and 192.6(a) to

show that they could challenge the subpoenas in Dallas County. CR.11–13.

1 To maximize readability, when the Nonparty Patients quote caselaw, the record, and other materials, they will accept all alterations and omit all internal citations, quotation marks, and footnotes, unless otherwise noted. See Alexander v. City of Syracuse, 132 F.4th 129, 138 n.2 (2d Cir. 2025) (doing the same).

2 The Nonparty Patients then amended their petitions twice. The first amended

petition added three Nonparty Patients. CR.102. The second added two paragraphs

on sovereign immunity. CR.235–36. The second amended petition is the live

pleading in this matter.

In the proceedings below, the State argued the Dallas County court could not

rule on the Nonparty Patients’ Rule 176.6(e) challenges. CR.346–51; RR.15, 28–29.

It filed a plea to the jurisdiction and a plea in abatement to this effect, which,

respectively, argued that sovereign immunity shielded the State from any discovery

challenge filed in Dallas County (but not Collin County), and that dominant

jurisdiction required the Dallas County court to pause its proceedings. Id.

The Dallas County court then held a hearing on the pleas. RR.6. The court

orally denied both pleas and signed a written order, after which it proceeded to hear

argument on the Nonparty Patients’ request for protection. CR.401; RR.36. But

before that argument could conclude, the State advised that it had filed an

interlocutory appeal challenging the trial court’s sovereign immunity ruling.

CR.426; RR.56, 58. The trial court then stayed the hospitals’ production obligations

under the subpoenas. CR.402–03; RR.60–61, 63, 66; see also CR.430 (explaining

why the trial court’s stay preserved the status quo). Briefing in this Court followed.2

2 As the State’s opening brief explains, there are two trial court proceedings involving another physician, Dr. M. Brett Cooper, and three related appellate proceedings. Br. at 2. Although the facts and legal issues in those matters overlap 3 SUMMARY OF THE ARGUMENT

The State’s argument principally focuses on sovereign immunity, and its

analysis is wrong all the way down. Caselaw from the Texas Supreme Court, the text

of the Rules themselves, and the two-step sovereign immunity analysis show that

the State’s position does not measure up under any standard.

First, the Texas Supreme Court has foreclosed the State’s arguments. The high

Court has long held that, as a default matter, the Rules of Civil Procedure and

Evidence apply to the State. See State v. Naylor, 466 S.W.3d 783, 792 (Tex. 2015);

Tex. Dep’t of Corr. v. Herring, 513 S.W.2d 6, 7–8 (Tex. 1974). The State can only

escape a Rule’s application if the Rule explicitly says so. Herring, 517 S.W.2d at 7–

8. Here, none of the four Rules at issue announce an exception for the State. That

dooms the State’s argument, and Rule 176.6(e)’s entire venue provision applies.

The State’s argument to the contrary gets the law backwards. It is true that

where a litigant asserts a cause of action against the State—be it a plaintiff,

defendant, third-party plaintiff, or intervenor—the usual presumption is that

sovereign immunity exists under the common law, and the courts must discern

whether the Legislature has clearly waived immunity. Reata Constr. Corp. v. City of

Dallas, 197 S.W.3d 371, 374–75 (Tex. 2006). But in the context of the Rules—which

with this appeal, for the sake of brevity, the Nonparty Patients will omit them from their discussion. 4 are different from constitutional, statutory, and common law causes of action—the

presumption is inverted. When a Rule is at issue, courts presume it applies to the

State in its entirety unless an express carve out provision says otherwise. Naylor,

466 S.W.3d at 792; Herring, 513 S.W.2d at 7–8. Here, the Rules apply to the State

in full force.

Second, a statute and two Rules of Civil Procedure teach that sovereign

immunity is an inapt framework. Texas Government Code § 22.004(a) and Rule 815

prohibit courts from using the Rules to expand or abridge any substantive rights. See

Tex. Gov’t Code § 22.004(a); Tex. R. Civ. P. 815. Similarly, Rule 816 prohibits

courts from using the Rules to extend or limit a court’s jurisdiction. These authorities

show sovereign immunity is an irrelevant concept when it comes to analyzing the

Rules. That’s because any analysis that presumes the Rules are imbued or not imbued

with sovereign immunity, and therefore apply or do not apply to the State,

necessarily expands or limits the State’s substantive rights and the judiciary’s

jurisdiction. That would contravene Rules 815 and 816. Section 22.004(a) and Rules

815 and 816 help explain why the Texas Supreme Court has repeatedly said the Rules

presumptively apply to the State without ever mentioning how sovereign immunity

played a role in its reasoning.

Third, common law principles do not support extending sovereign immunity

to these circumstances. For starters, the Nonparty Patients have surveyed more than

5 130 Texas Supreme Court cases. See App’x A. They have located no instance in

which a court held the State enjoys immunity from a privilege assertion raised in

response to a State-issued subpoena. That makes sense, since any such ruling would

eviscerate any privilege.

What is more, the two common law justifications for sovereign immunity do

not support its application here. The first justification—preventing undue threats to

the public fisc—is not implicated. Here, any depletion of public funds resulted from

the State’s own actions. The State chose to sue Dr. Lau. It also chose to seek the

records of 21 patients. When the State decides to place certain matters at issue, courts

presume that the State believed the accompanying litigation costs would be a

worthwhile expenditure of taxpayer dollars. In this case, it is hypocritical for the

State to use public resources to seek the medical records of the Nonparty Patients

and, in the same breath, argue the ensuring evidentiary challenges created an

unanticipated threat to the public fisc. The argument rings especially hollow because

the State has conceded that it is willing to litigate the Nonparty Patients’ privilege

challenges in Collin County. Br. at 10. Thus, it is undisputed that regardless of which

court adjudicates the Nonparty Patients’ evidentiary challenges, public resources

will be used. This common law factor would not be served if sovereign immunity

extended to the Dallas County proceedings.

6 The second common law consideration—preserving the separation of

powers—weighs against extending sovereign immunity to the Dallas County

proceedings. The Rules are a product of both the judiciary and the Legislature’s

reasoned judgment. Given that two branches of government create the Rules, a

holding in the State’s favor would disturb the separation of powers, not preserve it.

The State cannot undermine the intentions of its co-equal branches by picking and

choosing whatever text it wants to follow.

Fourth, even if the common law extended sovereign immunity to a parallel

Rule 176.6(e) proceeding, the Legislature has clearly and unambiguously waived it.

The four Taylor factors lead to this conclusion. See Wichita Falls State Hosp. v.

Taylor, 106 S.W.3d 692, 697–98 (Tex. 2003). Under these factors, the Rule would

make little sense if sovereign immunity barred litigation in the county of service; the

Rule unambiguously applies to “all parties” without exception; the Rule presumes

the State’s participation if it is a subpoena’s issuer; and the Rule’s application would

not impose financial liability on the State.

Finally, the State raises a non-issue to accompany its sovereign immunity

arguments: That the Nonparty Patients lack standing to raise challenges on behalf of

the unrepresented patients. Br. at 13–14. This issue is not properly before the Court.

The Nonparty Patients have never litigated on behalf of the unrepresented patients.

True enough, the Nonparty Patients raised concerns about the unrepresented

7 patients’ rights, but their statements did not amount to a formal challenge for the trial

court’s adjudication. CR.226–27; RR.49–50. The record shows that the Nonparty

Patients simply gave the Court context to help it understand the sprawling nature of

the State’s litigation. Id. Any standing challenge should thus be considered by the

trial court in the first instance and not this Court. Percolating the issue is important

because there has been no opportunity for the Nonparty Patients to develop the

record on how records for unrepresented patients may be commingled with the

represented patients, such as provider emails or visit logs. There is ultimately no

standing issue ripe for the Court to review, so any ruling on this front would amount

to an impermissible advisory opinion.

Across the board, the Court should affirm.

STANDARD OF REVIEW

This Court reviews a trial court’s ruling on a plea to the jurisdiction de novo.

PHI, Inc. v. Tex. Juv. Just. Dep’t, 593 S.W.3d 296, 302 (Tex. 2019). Where, as here,

the State only challenges the sufficiency of a pleading’s allegations, the Court

construes the pleadings liberally in favor of the Nonparty Patients and looks to their

intent. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

8 ARGUMENT

No matter how the Court slices it, sovereign immunity does not shield the

State from a parallel Rule 176.6(e) proceeding. The Texas Supreme Court has made

it clear that, absent a special provision to the contrary, the Rules apply to the State

just as they would for any other litigant. What is more, Section 22.004(a) of the

Texas Government Code, Rule 815, and Rule 816 establish that sovereign immunity

is ill-suited for disputes about a Rule’s applicability.

Still, assuming the foregoing authorities did not exist, a proper sovereign

immunity analysis still compels affirmance. In a fulsome sovereign immunity

interrogation, the Court asks two questions. First, would the common law apply

immunity to the proceeding at issue? If the answer is no, the analysis ends. Immunity

cannot be waived if it does not exist.

If the answer is yes, the Court continues and asks: Has the Legislature

nevertheless waived immunity? Relevant to this appeal are the four Taylor factors.

They all support waiver.

Lastly, the State raises a non-issue for the Court’s consideration. It argues that

the Nonparty Patients cannot assert any privileges on behalf of the unrepresented

patients. Br. at 13. But the Nonparty Patients never did so, and the State made no

such arguments below. This issue is not properly before the Court.

9 Below, the Nonparty Patients’ discussion begins with the most decisive

authorities—Texas Supreme Court precedent and the plain text of Section 22.004(a),

Rule 815, and 816. The Court’s analysis could stop there. Still, for the sake of

completeness, the Nonparty Patients indulge the State’s misguided reliance on

sovereign immunity and conduct a full sovereign immunity analysis. That analysis

still leads to affirmance.

I. THE STATE DOES NOT ENJOY SOVEREIGN IMMUNITY FROM THE DALLAS COUNTY PROCEEDINGS. A. The Texas Supreme Court has held that the Rules apply to the State unless a carveout provision exists; here, there is no carveout provision. Texas appellate courts have repeatedly said the Rules apply to the State unless

the text says otherwise. Indeed, more than a hundred years ago, the San Antonio

Court of Appeals announced that the State enjoyed “no special immunities and

privileges” when it came to the “rules of evidence and rules of procedure.”

Producers’ Oil Co. v. State, 213 S.W. 349, 352 (Tex. App.—San Antonio 1919, no

writ.) (emphasis added). Later, in 1955, the Texas Supreme Court approvingly cited

the intermediate court to explain that “[w]hen the state becomes a litigant in the

courts[,] it must observe and is bound by the same rules of procedure that bind all

other litigants, except where special provision is made to the contrary.” Tex. Co. v.

State, 281 S.W.2d 83, 90 (Tex. 1955) (emphasis added).

This pronouncement remains good law. In fact, the high Court has continually

reaffirmed it. In 1974, the Court reiterated that the State must not only abide by the 10 Rules of Civil Procedure, but it must also follow the “rules governing evidence.”

Herring, 513 S.W.2d at 7–8. More recently, in 2015, the Texas Supreme Court said

that “where the Legislature has given no indication to the contrary, the State must

abide by the same rules to which private litigants are beholden.” Naylor, 466 S.W.3d

at 792 (emphasis added).

Other examples abound. See Lowe v. Tex. Tech. Univ., 540 S.W.2d 297, 300–

01 (Tex. 1976) (applying Rule 168, which governs interrogatories and contains no

carveout provisions, to the State); Bednarz v. State, 176 S.W.2d 562 (1943) (same,

but Rules 67, 90, and 299, which, respectively, govern certain pleading amendments,

waiver, and omitted factual findings); Sec. Tr. Co. of Austin v. Lipscomb Cnty., 180

S.W.2d 151, 159 (Tex. 1945) (explaining, in the res judicata context, the State “is

subject to the same rules that govern other parties and a judgment”) when it becomes

a party to a lawsuit). Decisions from the intermediate courts of appeals are replete

with similar examples. 3

3 See In re Google LLC, 705 S.W.3d 479, 483–84 (Tex. App.—Austin [15th Dist.] 2025, no pet.) (applying Rule 199, which governs depositions, to the State because its broad language encompassed the State and no exception to the contrary existed); In re E.M., 665 S.W.3d 832, 835–36 (Tex. App.—Houston [14th Dist.] 2023, no pet.) (explaining Rule 13, which governs sanctions, can be imposed on the State, even though Rule 13 was silent on its application to the State); In re Commitment of Young, 410 S.W.3d 542, 546–47 (Tex. App.—Beaumont 2013, no pet.); Canutillo Indep. Sch. Dist. v. Olivares, 917 S.W.2d 494, 498 (Tex. App.—El Paso 1996, no writ) (same, but Rule 94, which governs pleading standards); Davis v. City of San Antonio, 752 S.W.2d 518, 519 (Tex. App.—San Antonio 1988, no writ) (same); Carrasco v. Tex. Transp. Inst., 908 S.W.2d 575, 579 (Tex. App.—Waco 11 Applying the Texas Supreme Court’s straightforward edict makes this case an

easy one. The proceedings below implicated two procedural rules and two

evidentiary rules. The first procedural rule, Rule 176.6(e), allows the Nonparty

Patients to challenge the State’s subpoenas in either Dallas County or Collin County:

[A]ny . . . 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 subpoenas was served. Tex. R. Civ. P. 176.6(e).

The second procedural rule contains similar language, though it has no venue

provision:

[A]ny . . . person affected by the discovery request, may move . . . for an order protecting that person from the discovery sought. Tex. R. Civ. P. 192.6(a).

Neither Rule contains a carveout provision for the State. So too with the

evidentiary Rules. See Tex. R. Evid. 509, 510. Because the four Rules say nothing

1995, no writ) (same, but Rule 169, which governed requests for admissions at the time); Tex. Dep’t of Hum. Servs. v. Green, 855 S.W.2d 136, 145 (Tex. App.—Austin 1993, writ denied) (same, but Evidence Rule 103(a), which governs the procedure for preserving evidentiary errors for appeal), superseded on other grounds, Neighborhood Ctrs. Inc. v. Walker, 544 S.W.3d 744, 748 (Tex. 2018) (explaining Legislature modified the Texas Whistleblower Act, which formed the basis of the Green proceedings, but saying nothing about changes to Evidence Rule 103(a)); Mokry v. Univ. of Tex. Health Sci. Ctr. at Dallas, 529 S.W.2d 802, 805 (Tex. App.— Dallas 1975, writ ref’d n.r.e.) (applying Rule 168, which governs interrogatories, to the State). 12 about exempting the State from their application, their entire text applies to the State.

Naylor, 466 S.W.3d at 792; Herring, 513 S.W.2d at 7–8; Tex. Co., 281 S.W.2d at 90;

Lowe, 540 S.W.2d at 300–01. The State must adhere to Rule 176.6(e)’s venue

provisions just like every other litigant.

The State’s argument to the contrary gets the law backwards. It contends that

sovereign immunity presumptively shields it from the Nonparty Patients’ evidentiary

contentions in Dallas County, and the Nonparty Patients must show the Legislature

clearly and unambiguously waived immunity. See Br. at 6–7. But the cases cited by

the State are inapposite. Those decisions involved situations in which a party lodged

an affirmative cause of action against the State—not a nonparty who asserted an

evidentiary privilege. See Br. at 7–8 (citing, among other cases, Reata, 197 S.W.3d

at 373 (third party asserted negligence claim against a governmental entity); Nazari,

561 S.W.3d at 499 (defendant asserted civil conspiracy, breach of contract, and

conversion claim against the State); and Tex. Adjutant’s Gen.’s Off. v. Ngakoue, 408

S.W.3d 350, 352 (Tex. 2013) (plaintiff asserted negligence claim against

governmental entity)). The shoe does not fit.

The State latches onto the word “claim” to conflate a cause of action with a

“claim” of evidentiary privilege. See, e.g., Br. at 10. But its discussion glosses over

the fundamental differences between a cause of action and a privilege assertion.

Causes of actions come with affirmative defenses, essential elements, jury

13 instructions on those elements, and, potentially, a final judgment imposing or

absolving a defendant of liability. A privilege assertion, on the other hand, comes

with none of these things. Although privilege assertions affect the quantum of

evidence that will ultimately be presented to a factfinder, they are procedural and not

substantive. The distinction matters. The differences between a cause of action and

a privilege assertion help reconcile why the Texas Supreme Court has announced

different presumptions for claims against the State and when to apply a Rule to the

State. They also explain why, in all the Texas Supreme Court cases cited above—

Herring, Texas Co., Naylor, and Lowe—the Texas Supreme Court never mentioned

sovereign immunity in its reasoning.

Moreover, the Texas Supreme Court’s interpretive approach makes sense.

Taking the State’s argument to its logical endpoint, a ruling in its favor would mean

that most of the Rules of Civil Procedure and Evidence do not apply to the State. For

instance, Rule 47(a) requires petitions to give “fair notice,” but it is silent on whether

it applies to the State. Tex. R. Civ. P. 74(a). Under the State’s logic, it does not have

to give Dr. Lau fair notice of the State’s SB 14 and DTPA claims against her. That is

an absurd result. A holding in the State’s favor would essentially mean hundreds of

procedural rules do not apply to the State. The Nonparty Patients have not found any

caselaw that would endorse such a result. See App’x A. Nor has the State.

14 B. Texas Government Code § 22.004(a) and Rules of Civil Procedure 815 and 816 make clear that sovereign immunity is an inapt framework for this dispute. What is more, the Legislature has declared that sovereign immunity is an

inapplicable conceptual framework with which to interpret the Rules. See Tex. Gov’t

Code § 22.004(a). Rules 815 and 816 reinforce this understanding. See Tex. R. Civ.

P. 815, 816.

Section 22.004(a) prohibits the Rules from abridging, enlarging, or modifying

a substantive right. Tex. Gov’t Code § 22.004(a). Rule 815 contains similar

language. See Tex. R. Civ. P. 815. As for Rule 816, it says that courts cannot use the

Rules to “extend or limit the jurisdiction of the courts.” Tex. R. Civ. P. 816.

Unquestionably, sovereign immunity is a substantive right. It can either

protect the State from a lawsuit altogether or function as an affirmative defense. See

Hidalgo Cnty. Water Improvement Dist. No. 3 v. Hidalgo Cnty. Irrigation Dist. No.

1, 669 S.W.3d 178, 182 & n.1 (Tex. 2023). Read properly, Section 22.004(a) and

Rule 815 forbid the Court from using the Rules to shape the contours of this

substantive right. Likewise, because sovereign immunity implicates subject matter

jurisdiction, the Court cannot use the Rules as a substantive source for determining

its subject matter jurisdiction.4 Nazari v. State, 561 S.W.3d 495, 500 (Tex. 2018).

4 The Nonparty Patients intentionally say sovereign immunity “implicates” subject matter jurisdiction. Nazari, 561 S.W.3d at 500 (using this same verbiage); Reata, 197 S.W.3d 371, 379–84 (Brister, J., concurring) (explaining how sovereign 15 To be sure, a trial court can use the Rules to facilitate a ruling on sovereign

immunity. For example, it can draw from Rule 5 to extend a deadline to file briefs

on the issue. See Tex. R. Civ. P. 5. It can also invoke Rule 58 to adopt-by-reference

other parts of the record to help it reach an immunity ruling. See Tex. R. Civ. P. 58.

Thus, even though a trial court can draw from the Rules to develop a process for

resolving an immunity dispute, it cannot say sovereign immunity is inured into a

Rule, or that it shields the State from a Rule’s application. That would contravene

Section 22.004(a), Rule 815, and Rule 816’s command that the Rules cannot abridge,

modify, or enlarge the State’s substantive rights and the court’s jurisdiction.

Rule 33 is instructive. Under that provision, if a plaintiff sues a county, city,

town, or village, the plaintiff must use the municipality’s “corporate name.” Tex. R.

Civ. P. 33. As the Rule’s text makes plain, Rule 33 certainly recognizes that, at times,

sovereign immunity does not protect municipalities from a lawsuit or judgment.

Otherwise, there would be no need for Rule 33’s mandate on naming municipalities.

Still, the Rule itself does not waive immunity. Under Section 22.004(a), Rule 815,

and Rule 816, a court cannot hold that Rule 33 waives sovereign immunity, so long

that a plaintiff uses the correct “corporate name” for a county, city, town, or village

in its pleadings.

immunity shares many characteristics with, but is ultimately different from, subject matter jurisdiction). 16 Caselaw confirms the Nonparty Patients’ understanding. Recently, the Austin

Court of Appeals held that a litigant cannot use Rule 38(a), which governs third-

party joinder, to create an exception to the jurisdictional doctrine of ripeness.

5653.041 Acre Ranch, L.P. v. Lewis-Watkins-Farmer Agency, 2022 WL 1479477, at

*3 (Tex. App.—Austin May 11, 2022, no pet.). In so ruling, the intermediate court

cited Rule 816 and explained the Rules of Civil Procedure “cannot grant jurisdiction

when it is otherwise lacking.” Id. Similarly, the Dallas Court of Appeals has held

that Rule 202, which authorizes pre-suit depositions, could not waive immunity

because only statutes can do so. See City of Dallas v. Dallas Black Fire Fighters

Ass’n, 353 S.W.3d 547, 553–55 (Tex. App.—Dallas 2011, no pet.). The Galveston

Court of Appeals has issued a similar holding. See Tex. Credit Co. v. O’Farrell, 177

S.W.2d 331, 333 (Tex. App.—Galveston 1944, no writ.) (citing Rules 815 and 816

to decline reading Rule 40 in a manner that abrogated jurisdiction).

In sum, using the sovereign immunity framework to interpret a Rule violates

the Rules themselves (and, more importantly, a statute). The Court can affirm on this

straightforward ground.

C. The Court should not extend sovereign immunity to Rule 176.6(e) and 192.6(a) proceedings in a parallel court. Even if the Court ignored the Texas Supreme Court’s decree that the Rules

presumptively apply to the State, and Section 22.004(a), Rule 815, and Rule 816’s

disavowal of the immunity framework, the common law does not support extending

17 sovereign immunity to parallel Rule 176.6(e) proceedings. Such an extension would

not further the modern justifications for the doctrine, and there is no historic practice

of doing so. Before the Nonparty Patients dive into this discussion, some background

on sovereign immunity is needed.

1. The sovereign immunity analysis involves a two-step analysis, which the State ignores in its brief. “Sovereign immunity is a common-law doctrine that initially developed

without any legislative or constitutional enactment.” Reata, 197 S.W.3d at 374.

Although it originally emerged from the mistaken premise that “the King can do no

wrong,” the justifications for the doctrine’s endurance have evolved. Phillips v.

McNeill, 635 S.W.3d 620, 627 (Tex. 2021). Now, both the judiciary and the

Legislature play a role in shaping the doctrine’s contours and applicability, and two

modern reasons justify its continued vitality: (a) to shield the public fisc from

litigation “distractions” and (b) to preserve the separation of powers. See Hidalgo

Cnty., 669 S.W.3d at 183; Reata, 197 S.W.3d at 382 (Brister, J., concurring).

Only the judiciary can determine “whether the doctrine should be modified or

abrogated under particular circumstances.” Hidalgo Cnty., 669 S.W.3d at 183.

Accordingly, a complete sovereign immunity analysis unfolds in two steps. Id. at

182–83. First, the Court asks whether sovereign immunity even applies to the

proceeding at issue. Id. This inquiry requires that sovereign immunity would further

two interests—undue threats to the public fisc and preserving the separation of

18 powers. Id. at 183. And, although it is not formally a part of the analysis, the Texas

Supreme Court has also looked at the history of a certain proceeding to guide its

analysis. Id. at 184.

If the common law would not extend sovereign immunity to the proceeding,

then the inquiry ends. That’s because immunity cannot be waived if it does not exist.

Id. To give an obvious example, suppose that one private litigant sues another private

litigant. The common law would not extend immunity to that proceeding because

there is no undue threat to the public fisc (other than a strain on judicial resources)

and the separation of powers would not be disturbed. Nor is there any history of

shielding purely private entities from suit or liability. Thus, the question of waiver is

irrelevant.5 See Harris Cnty. Fresh Water Supply Dist. No. 61 v. Magellan Pipeline

Co., L.P., 649 S.W.3d 630, 641 (Tex. App.—Houston [1st Dist.] 2022) (“When

sovereign immunity is inapplicable due to . . . judicial modification rather than

legislative pronouncement, courts characterize the protection’s absence as arising

from abrogation rather than waiver.”).

5 To provide less-obvious examples, the Texas Supreme Court has held sovereign immunity does not apply in the following scenarios: (1) where a political subdivision files a condemnation proceeding against another political subdivision, Hidalgo Cnty., 669 S.W.3d at 188; (2) where a private party initiates an ultra vires suit against a state official and seeks prospective injunctive relief, City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009); and (3) where a municipal bond issuer sues under the Expedited Declaratory Judgment Act, City of Conroe v. San Jacinto River Auth., 602 S.W.3d 444, 458–59 (Tex. 2009). 19 Because this threshold inquiry does not arise often, the Texas Supreme Court

has called it “the rare antecedent question.” Id. at 183. And even though this

interlocutory appeal directly touches on the antecedent question, the State’s brief

does not assess it at all. See Br. at 6–11 (assuming sovereign immunity applies and

discussing legislative waiver). As the Nonparty Patients explain below, addressing

the antecedent question head-on will show that sovereign immunity should not

extend to the Dallas County proceeding.

But suppose the common law did apply sovereign immunity to the Dallas

County proceeding. If that is the case, the Court must move to the second step of the

analysis and determine whether the Legislature waived immunity. City of Dallas v.

Albert, 354 S.W.3d 368, 373 (Tex. 2011) (“[Sovereign immunity’s] boundaries are

established by the judiciary, but we have consistently held that waivers of it are the

prerogative of the Legislature.”); see also Tex. Gov’t Code § 311.034. Waiver can

be found through either “magic words,” or if four considerations—which the

Nonparty Patients call the “Taylor factors,” show that the Legislature clearly and

unambiguously waived sovereign immunity. See Taylor, 106 S.W.3d at 697–98.

Here, the four Taylor factors show that the Legislature clearly and

unambiguously waived sovereign immunity. See infra Section I.D.

20 2. The Nonparty Patients’ Dallas County litigation does not present an undue threat to the public fisc. The Nonparty Patient’s Dallas County proceedings do not unduly threaten the

public fisc. Stated differently, this goal would not be served if sovereign immunity

extended to the Dallas County proceeding.

As a preliminary matter, it is true that in all State-related litigation, the State

must use some public resources. However, it is not true that any time the State must

spend resources on a case, it is entitled to sovereign immunity. For common law

purposes, the relevant question is whether a proceeding presents undue threat to

public funds, such that it improperly “distract[s]” the State and diverts funds away

from their “intended purposes.” See Reata, 197 S.W.3d at 375, 382; id. at 382

(Brister, J., concurring). Here, the Nonparty Patients’ Dallas County challenge

presents no undue distraction. In fact, the State likely knew it was coming.

The Texas Supreme Court’s decision in Hidalgo County offers worthy

insights. There, the Court explained that when a political subdivision files a

condemnation proceeding against another political subdivision, the lawsuit does

“not threaten the public treasury except to the extent the condemnee entity chooses

to participate.” 669 S.W.3d at 186 (emphasis added).

Importantly, the Texas Supreme Court did not say that the condemnee’s

participation had any bearing on the common law’s public-fisc consideration.

Instead, the Court suggested that the litigation costs prompted by the condemnee fell

21 outside the interests protected by the common law. See id. Although the Court did

not explicitly explain why, it is reasonable to conclude that the following principle

guided its decision: It was the government’s choice to file suit, and in so doing, the

government must have decided that any litigation costs stemming from the

condemnee’s resistance was worth the effort. To be sure, these litigation costs affect

the public fisc; however, they do not constitute an undue diversion of public funds.

After all, the State decided the funds were intended for this use—to pursue

condemnation and fight any resistance thereto. See id.; cf. Reata, 197 S.W.3d at 375

(“[I]f the governmental entity interjects itself into or chooses to engage in litigation

to assert affirmative claims for monetary damages, the entity will presumably have

made a decision to expend resources to pay litigation costs.”).

That commonsense principle should control here. Everything that has

transpired was a problem of the State’s own making. It was the State’s decision to

sue Dr. Lau and seek the records of 21 patients. It was also the State’s decision to

serve subpoenas in Dallas County. The State should have foreseen that patients were

likely to contest any overly broad subpoenas. It should have also foreseen that

service in Dallas County exposed it to a parallel proceeding therein. In these

circumstances, the Court should presume that any strain on the public fisc came

about because the State decided the benefits outweighed the costs.

22 In fact, the Court need not presume this—the State has affirmatively said so.

In its opening brief, it says it is willing to litigate the scope of the subpoenas in Collin

County. Br. at 10. The State cannot plausibly claim that a proceeding in Dallas

County improperly diverts funds from the public treasury and simultaneously say it

would happily use those funds to litigate the same issue in another county. The first

common law justification for sovereign immunity would not be served. The Court

should not extend sovereign immunity to the Dallas County proceeding.

3. Applying Rule 176.6(e) to the State would preserve the separation of powers. In addition, applying Rule 176.6(e)’s entire venue provision to the State would

preserve the separation of powers, not disturb it. That’s because the Rules of Civil

Procedure and Evidence are a byproduct of the judiciary and Legislature’s reasoned

judgment. Pursuant to the state Constitution and statute, the Texas Supreme Court

begins the rulemaking process by promulgating a Rule of Civil Procedure or

Evidence. See Tex. Const. art. V, § 31(b); Tex. Gov’t Code §§ 22.004(a),

74.024(c)(6).6 After the high Court adopts its final Rule, the legislature can draw

6 See also Justice Nathan L. Hecht, Justice Jane N. Bland, et al., How Texas Court Rules Are Made, Texas Supreme Court, at 3 n.21, https://www.txcourts.gov/ media/1374851/How-Court-Rules-Are-Made.pdf (last updated May 20, 2024) (explaining rulemaking process); William V. Dorsaneo III, The History of Texas Civil Procedure, 63 Baylor L. Rev. 713, 792–93 (2014) (same).

23 from its override power and nullify the Rule at any time. See Tex. Gov’t Code

§§ 22.004(b), 74.024(d).

Here, Rule 176.6(e) has been on the books since 1998. See Tex. R. Civ. P.

176.6(e) cmt. 1. When the Texas Supreme Court promulgated it, it was certainly

aware of its prior decisions in Texas Co., Herring, and Lowe, which all announced

that the Rules apply to the State unless a special provision says otherwise. See Tex.

Co., 281 S.W.2d at 90; Herring, 513 S.W.2d at 7–8; Lowe, 540 S.W.2d at 301. If the

Texas Supreme Court wanted to include a carveout provision for the State, it could

have done so to maintain consistency with its own precedent. But it did not. The

Rule’s silence on the matter speaks volumes.

The Legislature’s inaction is also telling. The Court must presume that when

the Texas Supreme Court presented the Legislature with Rule 176.6(e), the

Legislature understood the legal landscape at the time. See Lewis v. State, 693

S.W.3d 453, 465 (Tex. App.—Houston [14th Dist.] 2023, pet. denied) (“We presume

that the Legislature is aware of relevant case law when it enacts, or declines to

amend, statutes.” (emphasis added)). Yet, in the 27 years of Rule 176.6(e)’s

existence, not once has the Legislature chosen to override or demand that

Rule 176.6(e) contain an express exception for the State. The Legislature’s decision

not to intervene is a resounding endorsement of the Rule as written. The Court must

respect that decision.

24 Against this backdrop, a holding in the State’s favor would undermine the

separation of powers. That’s because a decree that sovereign immunity prohibits a

Rule’s application to the State—when that Rule does not announce an exception—

would elevate the executive branch above that of its two co-equal branches. That,

the Court cannot do.

4. There is no common law tradition of extending sovereign immunity to parallel discovery disputes involving a subpoena. The Nonparty Patients have located no instance in which the common law has

applied sovereign immunity to a discovery dispute, let alone a parallel proceeding

involving a subpoena. To be sure, the Court only needs to assess the twin purposes

of sovereign immunity and determine whether their purposes would be served if

immunity reached a particular proceeding. Even so, the Texas Supreme Court has

also looked at the common law tradition to guide its analysis, perhaps because the

past has predictive value for the future. See Hidalgo Cnty., 669 S.W. at 184–85

(assessing the history of condemnation suits).

The Nonparty Patients have surveyed more than 130 sovereign immunity

opinions from the Texas Supreme Court—including every case cited by the State.

See App’x A. The Nonparty Patients have not located one example—let alone a

common law tradition—of extending sovereign immunity to a discovery dispute.

See id. As the Nonparty Patients’ Appendix shows, every substantive discussion of

25 immunity arose in the context of asserting an affirmative cause of action—not

invoking an evidentiary privilege. Id.

5. The State’s focus on Reata and Nazari is misplaced—those cases concerned counterclaims for which a money judgment would be entered, not an evidentiary privilege. Glaringly absent from the State’s brief is any substantive discussion on the

antecedent question. Rather than analyzing sovereign immunity under the

framework above, the State focuses on the Texas Supreme Court’s specific holdings

in Reata and Nazari. Br. at 8–10. But those holdings have little import here. In Reata

and Nazari, the Texas Supreme Court explained how the common law views

sovereign immunity where a counterclaim for monetary relief is concerned. Reata,

197 S.W.3d at 377; Nazari, 561 S.W.3d at 509. As the Nonparty Patients have

explained, counterclaims are causes of actions that seek a final judgment on the

merits. See supra Section I.A. Privilege assertions are not causes of actions. Id. In

fact, Nazari—the case the State relies on the most—recognizes this distinction:

We agree with the [S]tate that these decisions do not establish that the state waives its sovereign immunity by initiating suit. Many of the cases the [counterclaimant] cite stand simply for the proposition that procedural rules apply to the [S]tate just as they would any other litigant when the state appears in court. That proposition, though sound, does not answer the question whether sovereign immunity protects the [S]tate from having to defend certain actions [counterclaims] to begin with.

Nazari, 561 S.W.3d at 501 (emphasis added).

26 While the State’s general summary of Reata and Nazari is correct—the State

enjoys sovereign immunity from counterclaims when it only seeks civil penalties,

but it does not when it seeks money damages—its attempted application of those

cases misses the mark. The principal holdings in those cases have little relevance

precisely because the Nonparty Patients have never asserted a counterclaim against

the State. They have only asserted a privilege.

In sum, sovereign immunity should not extend to a Rule 176.6(e) proceeding

initiated in the county of service. The twin purposes of sovereign immunity would

not be served; the common law lacks any example supporting the State’s position;

and the State’s reliance on Reata and Nazari erroneously conflates a cause of action

with asserting an evidentiary privilege.

D. Even if sovereign immunity did exist for this particular proceeding, the Legislature has waived it. Even still, if sovereign immunity extended to the Dallas County proceeding

as a matter of common law, the Legislature clearly and unambiguously waived it. To

be sure, Rule 176.6(e) does not contain any “magic words” specifically waiving

immunity. See, e.g., Tex. Civ. Prac. & Rem. Code § 101.025(a) (“Sovereign

immunity is waived and abolished to the extent of liability created by this chapter.”).

That said, an examination of the Texas Supreme Court’s four “Taylor factors” shows

that the Legislature waived sovereign immunity. Those factors are: (1) whether the

statute would be meaningless unless immunity were waived; (2) whether any

27 ambiguities exist, and if so, the court should resolve them in favor of retaining

immunity; (3) whether the State must be joined; and (4) whether the Legislature

enacted simultaneous measures to insulate public resources from the reach of the

judgment creditors, such as a statutory provision that limits “the State’s potential

liability.” 106 S.W.3d at 697–98.7 All four considerations point to waiver.

1. Rule 176.6(e) would be meaningless unless immunity were waived. If sovereign immunity barred the State from being subject to a Rule 176.6(e)

proceeding in the county of service, the venue provision would be illusory whenever

the State is the party issuing the subpoena. The State’s position effectively nullifies

half of the Rule’s venue options. See City of Dallas v. TCI W. End, Inc., 463 S.W.3d

53, 55–56 (Tex. 2016) (“We must avoid adopting an interpretation that renders any

part of the statute meaningless.”); Henderson v. Shanks, 449 S.W.3d 834, 842 (Tex.

App.—Houston [14th Dist.] 2014, pet. denied) (“If possible, we must ascertain . . .

intent from the rule’s language and not look to extraneous matters for an intent that

the rule does not state.”); cf. Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992)

(“We have stated time and time again that courts must presume that a legislature says

in a statute what it means and means in a statute what it says there.”). Here, the Court

7 That the Texas Supreme Court phrased the Taylor factors in terms of analyzing a statute, rather than a Rule, is noteworthy. The Court’s word choice reinforces the Nonparty Patients’ arguments that sovereign immunity is an awkward framework with which to analyze the Rules of Civil Procedure. See supra Section III.B. 28 should not vitiate the Texas Supreme Court and Legislature’s deliberate choice to

provide nonparties two fora for asserting their privileges. The procedural right

enshrined in Rule 176.6(e) would be gutted if the State could invoke sovereign

immunity to avoid a challenge in another forum. The first Taylor factor heavily

supports waiver.

2. Rule 176.6(e) contains no ambiguities, so the Court cannot resolve a nonexistent ambiguity in the State’s favor. The same is true for the second Taylor factor. Rule 176.6(e)’s text is clear as

day. It applies to “any party” or “any person affected by the discovery request.” Here,

the State is the party, and the Nonparty Patients are persons affected by the discovery

request. The Rule’s plain language, coupled with the absence of any limiting

language, demonstrates a clear intent that the Rule’s venue provision applies to all

litigants, including the State. Tex. Co., 281 S.W.2d at 90 (holding the State “is bound

by the same rules of procedure that bind all other litigants, except where special

provision is made to the contrary”). There are no ambiguities, so there is nothing to

be resolved in favor of retaining immunity. The second Taylor factor supports

waiver.

3. Rule 176.6(e) presumes State participation. While the Rule does not require the State to be joined in every proceeding, it

does contemplate that the State, as the party issuing a subpoena, may be subject to a

challenge in a court outside the original forum. This is not a situation where a State

29 is involuntarily haled into court on an unrelated matter. Rather, the State availed

itself of judicial power in Dallas County when it chose to serve two subpoenas

therein. Cf. Reata, 197 S.W.3d at 375 (noting the State “presumably . . . made a

decision to expend resources to pay litigation costs” when it “interjects itself into or

chooses to engage in litigation”). The third factor supports waiver.

4. The Rule contains built-in protections that limit the State’s exposure. The Rule inherently limits the State’s financial exposure. The fourth Taylor

factor looks for simultaneous measures that insulate public resources from the reach

of judgment creditors, such as statutory caps or limitations on liability. Taylor, 106

S.W.3d at 698.

At worst, this factor weighs neutrally because it is only relevant where a party

seeks money damages from the State. The Nonparty Patients have explained that

asserting an evidentiary privilege is not equivalent to asserting a cause of action for

monetary relief. See supra Section I.A.

At best, this factor supports waiver, since the only relief available under Rule

176.6(e) is a quashing or modification of a subpoena. Moreover, the State does not

deny that the same relief could be sought in the trial court. Its admission underscores

how the public treasury remains at risk for the substantially same financial burden

in opposing that relief. In light of this limited relief, Rule 176.6(e) merely regulates

the scope of discovery and does not threaten the public treasury.

30 * * *

Based on the foregoing, a panoply of reasons show that the State’s sovereign

immunity argument holds no water. Supreme Court precedent, a statute, two Rules,

the twin purposes of sovereign immunity, and the four Taylor factors do not support

the State’s position. The Court should affirm.

II. THE NONPARTY PATIENTS NEVER RAISED A CHALLENGE ON BEHALF OF THE UNREPRESENTED PATIENTS Finally, the State confusingly argues that the Nonparty Patients cannot

challenge the subpoenas for the unrepresented patients. Br. at 5, 13–14. It is unclear

why the State has made this argument. In the proceedings below, counsel for the

represented patients never raised a challenge for the unrepresented patients. Rather,

counsel said the opposite:

[I]n the course of our conferences, [the State] has admitted it may not have good address information.

That’s important because of the rules for subpoenas require that the nonparties[’] medical records . . . were served with a copy of the subpoena . . . . And some court somewhere, we would hope, would eventually look into whether the people who aren’t here are not here because they don’t care or are not here because they don’t know that they’re one of the 37 anonymized Texans at issue in this case.

But again, I understand that I represent, as counsel likes to remind me, only the 11. So I will focus on them next.

RR.49 (emphasis added).

These statements fully acknowledge that the Nonparty Patients’ counsel only

raised the issue of service in his capacity as an officer with a duty of candor to the 31 Court, not as someone who has the capacity to challenge the subpoena’s impact on

the unrepresented patients. See also CR.226–27 (counsel’s letter to the trial court,

which expressed concerns about the unrepresented patients “in our personal capacity

as members of the bar” and “officers of the Court”). Moreover, the State has not

presented this below, and thus, the parties have not developed a full record on

whether the production of unrepresented patients’ records will implicate the

represented patients. For example, provider emails and visitor logs may commingle

the Nonparty Patients’ information with the unrepresented patients’. Determining

which parts of the subpoenas to adjudicate in the first instance is solely within the

discretion of the Dallas County court. Because the State did not raise this issue before

the Dallas County court, it is not properly before this Court. The State’s standing

argument seeks an impermissible advisory opinion. See Gen. Land Off. State of Tex.

v. OXY U.S.A., Inc. 789 S.W.2d 569, 570 (Tex. 1990) (“[T]he judicial power does

not embrace the giving of advisory opinions.”). The issue is not properly before the

Court.

PRAYER

For the foregoing reasons, the Court should affirm the trial court’s denial of

the State’s plea to the jurisdiction.

32 Dated: May 5, 2025 Respectfully submitted,

/s/ Thanh D. Nguyen

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

Hollie M. Albin (pro hac vice forthcoming) D.C. Bar No. 90029285 hmalbin@winston.com WINSTON & STRAWN LLP 1901 L Street N.W. Washington, D.C. 20036 Telephone: (202) 282-5000

33 David Phillips (pro hac vice forthcoming) N.Y. Bar No. 6175863 dphillips@winston.com WINSTON & STRAWN LLP 200 Park Avenue, 43rd Floor New York, NY 10166 Telephone: (212) 294-6700

ATTORNEYS FOR APPELLEES

CERTIFICATION OF COMPLIANCE

This brief complies with the type-volume limitation of Tex. R. App.

P. 9.4(i)(2). The body of this brief contains 7,944 words, excluding those portions

exempted by the Rule.

This brief also complies with the typeface requirements of Tex. R. App.

P. 9.4(e). It has been prepared in Times New Roman, a proportionally spaced

typeface, in 14-point font.

/s/ Thanh D. Nguyen Thanh D. Nguyen

34 CERTIFICATE OF SERVICE

Consistent with Tex. R. App. P. 9.5(b)(1), the undersigned counsel certifies

that on May 5, 2025, this brief was electronically served on all counsel of record

through the Court’s electronic filing system.

/s/ Thanh D. Nguyen Thanh D. Nguyen

35 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.

Sarah Shelby on behalf of Thanh Nguyen Bar No. 24126931 SShelby@winston.com Envelope ID: 100466131 Filing Code Description: Brief Requesting Oral Argument Filing Description: Brief for Appellees Status as of 5/6/2025 7:05 AM CST

Associated Case Party: State of Texas

Name BarNumber Email TimestampSubmitted Status

David G. Shatto david.shatto@oag.texas.gov 5/5/2025 7:23:25 PM SENT

Rob Farquharson rob.farquharson@oag.texas.gov 5/5/2025 7:23:25 PM SENT

Abby Smith abby.smith@oag.texas.gov 5/5/2025 7:23:25 PM SENT

Johnathan Stone johnathan.stone@oag.texas.gov 5/5/2025 7:23:25 PM SENT

Ian Bergstrom Ian.Bergstrom@oag.texas.gov 5/5/2025 7:23:25 PM SENT

Amy Pletscher amy.pletscher@oag.texas.gov 5/5/2025 7:23:25 PM SENT

Associated Case Party: Nonparty Patient No. 1

Name BarNumber Email TimestampSubmitted Status

William Logan 24106214 wlogan@winston.com 5/5/2025 7:23:25 PM SENT

Evan Lewis 24116670 edlewis@winston.com 5/5/2025 7:23:25 PM SENT

Jervonne Newsome 24094869 jnewsome@winston.com 5/5/2025 7:23:25 PM SENT

Thanh Nguyen tdnguyen@winston.com 5/5/2025 7:23:25 PM SENT

Olivia Wogon owogon@winston.com 5/5/2025 7:23:25 PM SENT

Jonathan Hung JOHung@winston.com 5/5/2025 7:23:25 PM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status

David Walsh 791874 dwalsh@katxlaw.com 5/5/2025 7:23:25 PM SENT

Pauline Sisson pauline.sisson@oag.texas.gov 5/5/2025 7:23:25 PM SENT

David Phillips DPhillips@winston.com 5/5/2025 7:23:25 PM SENT 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.

Sarah Shelby on behalf of Thanh Nguyen Bar No. 24126931 SShelby@winston.com Envelope ID: 100466131 Filing Code Description: Brief Requesting Oral Argument Filing Description: Brief for Appellees Status as of 5/6/2025 7:05 AM CST

Case Contacts

David Phillips DPhillips@winston.com 5/5/2025 7:23:25 PM SENT

Jamie Vargo JVargo@winston.com 5/5/2025 7:23:25 PM SENT

Emily Samuels emily.samuels@oag.texas.gov 5/5/2025 7:23:25 PM SENT

Melinda Pate melinda.pate@oag.texas.gov 5/5/2025 7:23:25 PM SENT

Houston Docket ecf_houston@winston.com 5/5/2025 7:23:25 PM SENT Appendix A

1 # Caption Citation Summary Bd. of Land Dallam 524 (Tex. Discussing immunity in the context of whether the assignee of a claim to a league 1 Comm’rs v. Walling 1843) and labor of land was entitled to a certificate for such league and labor of land. 1 Tex. 764, 769 Discussing immunity in the context of a claim that a landowner was entitled to 2 Hosner v. DeYoung (Tex. 1847) have his land surveyed. City of Waco v. 5 S.W.2d 498, Discussing whether a city was exempt from liability where a plaintiff asserted a 3 Branch 499 (Tex. 1928) negligence claim against park employees. 42 S.W.2d 228, Discussing immunity where a plaintiff sued a tax collector for money allegedly 4 State v. Epperson 231 (Tex. 1931) due under a contract. Anderson, Clayton 62 S.W.2d 107, Explaining the State waived its sovereign immunity when it sought penalties and 5 & Co. v. State ex 107, 110 (Tex. an injunction against trucking companies that allegedly operated without necessary rel. Allred 1933) permits. Concluding sovereign immunity did not shield a city where a plaintiff brought a Steele v. City of 603 S.W.2d 786, destruction claim under Article I, Section 17 of the Texas Constitution (commonly 6 Houston 791 (Tex. 1980) known as the “Takings Clause,” but authorizes claims based on governmental taking, damaging, and destruction of property) 893 S.W.2d 432, Discussing immunity in the context of a statutory claim to attorneys’ fees resulting Tex. Educ. Agency 7 437–40 (Tex. from the successful claim to injunctive relief halting prosecution under a v. Leeper 1994) compulsory attendance law. 106 S.W.3d 692, Wichita Falls State Holding the legislature did not waive sovereign immunity for wrongful death 8 693–94 (Tex. Hosp. v. Taylor claims for damages brought under Tex. Health & Safety Code § 321.003. 2003) Dallas Area Rapid 104 S.W.3d 540, 9 Discussing immunity in the context of a negligence claim. Transit v. Whitley 541 (Tex. 2003) Tex. Dep’t of Parks 133 S.W.3d 217, Discussing whether sovereign immunity protected a state agency where a plaintiff 10 & Wildlife v. 220–21 (Tex. brought negligence and gross negligence claims. Miranda 2004) Tooke v. City of 197 S.W.3d 325, 11 Discussing sovereign immunity in breach-of-contract dispute. Mexia 330 (Tex. 2006)

2 Reata Constr. 197 S.W.3d 371, Holding a city waived its immunity where a defendant filed a third-party claim of 12 Corp. v. City of 373–74 (Tex. negligence against the city, and the city, in turn, asserted a negligence claim Dallas 2006) against the defendant. PKG Contracting, 197 S.W.3d 388, 13 Inc. v. City of 388–89 (Tex. Discussing immunity in the context of quantum meruit and negligence claims. Mesquite 2006) City of Angleton v. 201 S.W.3d 677, 14 USFilter Operating Remanding so the lower court could consider Reata’s impact on a counterclaim. 678 (Tex. 2006) Services, Inc. Port Neches- Groves ISD v. 201 S.W.3d 679, Remanding so the lower court could consider Reata’s impact on a counterclaim 15 Pyramid 681 (Tex. 2006) sounding in contract. Constructors City of Midland v. 201 S.W.3d 689, Remanding so the lower court could consider Reata’s impact on a claims sounding 16 Goerlitz 690 (Tex. 2006) in contract. Metropolitan 201 S.W.3d 692, Remanding so the lower court could consider Reata’s impact on a claims sounding 17 Transit Auth. v. 692–93 (Tex. in contract. M.E.B. Eng’g, Inc. 2006) City of Irving v. 201 S.W.3d 693, 18 Inform Constr., 693–94 (Tex. Discussing immunity in the context of a contract dispute. Inc. 2006) 210 S.W.3d 601, City of Dallas v. 19 602–03 (Tex. Discussing immunity in the context of personal injury claims. Thompson 2006) Ben Bolt-Palito Blanco Consol. 212 S.W.3d 320, Discussing immunity in the context of an insurance/breach-of-contract claim 20 ISD v. Tex. Pol. 322 (Tex. 2006) lodged against a self-insurance fund comprised of political subdivisions. Subdivisions Fund 216 S.W.3d 827, City of Houston v. 21 828–29 (Tex. Discussing immunity in a wage dispute. Williams 2007)

3 217 S.W.3d 466, City of Galveston v. Discussing immunity where the State sued a city for money damages resulting 22 468–69 (Tex. State from alleged negligence. 2007) In re Tex. Dep’t of 218 S.W.3d 74, Briefly mentioning sovereign immunity in the context of negligence, gross 23 Transp. 76 (Tex. 2007) negligence, premises defect, and special defect claims. State ex rel. Tex. Dept. of Transp. v. 220 S.W.3d 494, Discussing immunity where defendant counterclaimed for damages for business 24 Precision Solar 494 (Tex. 2007) disparagement. Controls, Inc. 221 S.W.3d 639, Holding that the State retains sovereign immunity against an alleged takings claim 25 State v. Holland 643–44 (Tex. because the claim sounded in contract. 2007) State v. Fidelity 223 S.W.3d 309, Holding State waived immunity against defensive counterclaim by initiating 26 and Deposit Co. of 312 (Tex. 2007) litigation on a performance bond. Maryland Abilene Housing 226 S.W.3d 415, Holding municipal housing authority with power to “sue and be sued” may retain 27 Authority v. Gene 417 (Tex. 2007) immunity against breach of contract claim; remanded for further consideration. Duke Builders, Inc. Stephen F. Austin 228 S.W.3d 653, Discussing immunity in context of Texas Tort Claims Act (“TTCA”) in personal 28 State University v. 657 (Tex. 2007) injury suit. Flynn Dallas Fire 231 S.W.3d 388 29 Fighters Ass'n v. Discussing immunity in context of breach of contract claim. (Tex. 2007) City of Dallas Texas A & M 233 S.W.3d 835, Holding sovereign immunity applied against claim for breach of a settlement 30 University System 846 (Tex. 2007) agreement. v. Koseoglu Texas Parks and Wildlife Dept. v. 235 S.W.3d 692, 31 Discussing immunity in context of TTCA in property damage suit. E.E. Lowrey 694 (Tex. 2007) Realty, Ltd.

4 Lamesa 235 S.W.3d 710, Discussing sovereign immunity in breach-of-contract and quantum meruit claim 32 Independent School 711 (Tex. 2007) against school district. District v. Booe Fort Worth Independent School 243 S.W.3d 609, 33 Dist. v. Service Discussing sovereign immunity in breach-of-contract claim against school district. 610 (Tex. 2007) Employment Redevelopment Nueces County v. 246 S.W.3d 651, Holding county immune from liability for collection of ad valorem taxes on land 34 San Patricio 653 (Tex. 2008) later determined to belong to another county, absent express legislative waiver. County Houston Mun. 248 S.W.3d 151, Discussing immunity where plaintiff sought a declaratory judgment and injunctive 35 Emp. Pension Sys. 155–56 (Tex. relief. v. Ferrell 2007) 249 S.W.3d 412, City of Corsicana 36 413–14 (Tex. Discussing sovereign immunity in the context of a premises liability claim. v. Stewart 2008) Igal v. Brightstar 250 S.W.3d 78, 37 Info. Tech. Grp., 84 & n.6 (Tex. Briefly mentioning sovereign immunity in a wage dispute. Inc. 2008) Univ. of Tex.–Pan 251 S.W.3d 511, 38 Briefly mentioning sovereign immunity in a premises liability case. Am. v. Aguilar 512 (Tex. 2008) Mission Consol. 253 S.W.3d 653, Discussing immunity where plaintiff asserted claims under the Texas Commission 39 Indep. Sch. Dist. v. 654 (Tex. 2008) on Human Rights Act and the TTCA. Garcia FKM P’ship, Ltd. v. Bd. of Regents of 255 S.W.3d 619, 40 Discussing immunity in the context of a condemnation proceeding. the Univ. of 635 (Tex. 2008) Houston Sys.

5 City of Dallas v. 258 S.W.3d 620, 41 Discussing immunity where plaintiff brought a premises defect claim. Reed 621 (Tex. 2008)

259 S.W.3d 147, City of Waco v. 42 147–48 (Tex. Discussing immunity where plaintiff brought wrongful termination claims. Lopez 2008) Dallas Area Rapid Transit v. 273 S.W.3d 659, 43 Amalgamated 660–61 (Tex. Discussing immunity in a breach of contract dispute. Transit Union 2008) Local No. 1338

Sw. Bell Tel., L.P. 282 S.W.3d 59, Discussing immunity where plaintiff sued governmental entity for reimbursement 44 v. Harris Cnty. Toll 60, 68 (Tex. under the Tex. Transp. Code § 251.102 and asserted an inverse condemnation Road Auth. 2009) claim.

Harris Cnty. Hosp. 283 S.W.3d 838, Discussing immunity where hospital sued governmental entity over unpaid monies 45 Dist. v. Tomball 841 (Tex. 2009) under Indigent Health Care and Treatment Act and the Texas Constitution. Reg’l Hosp.

Holding an ultra vires claim must be brought against a state official and the state City of El Paso v. 284 S.W.3d 366, 46 itself is immune from suit, even though, “for all practical purposes,” the suit is Heinrich 373 (Tex. 2009) against the state.

Tex. Dep’t of 284 S.W.3d 844, 47 Discussing immunity where plaintiffs sued for premises liability. Transp. v. York 845 (Tex. 2009)

Tex. Dep’t of 284 S.W.3d 848, 48 Transp. v. Discussing immunity where plaintiffs sued for premises liability. 849 (Tex. 2009) Gutierrez

6 Dallas Cnty. v. 290 S.W.3d 869 49 Discussing immunity where plaintiffs asserted wrongful death claims. Posey (Tex. 2009) Assessing sovereign immunity under the Texas Whistleblower Act where a former 290 S.W.3d 876, 50 State v. Lueck government employee lodged a wrongful termination claim against the 878 (Tex. 2009) government. Zachry Constr. 298 S.W.3d 617, Briefly discussing immunity where governmental entity may have been a 51 Corp. v. Tex. 617–18 (Tex. responsible third-party in a personal-injury and wrongful-death case. A & M Univ. 2009) Tex. Dept. of Ins. v. 306 S.W.3d 256, Explaining that the Texas Department of Insurance retains sovereign immunity 52 Reconveyance 257–59 (Tex. from suit under the UDJA unless suit is brought against officials in their official Servs., Inc. 2010) capacity for ultra vires actions. Tex. State Univ. - 314 S.W.3d 912, 53 San Marcos v. Discussing immunity where plaintiffs sued for premises liability. 912 (Tex. 2010) Bonnin 317 S.W.3d 731 54 TDCJ v. McBride Discussing sovereign immunity where inmate asserted due process claim. (Tex. 2010) Kirby Lake Development, Ltd. 320 S.W.3d 829, Holding that governmental immunity is waived for breach of contract claims under 55 v. Clear Lake City 832 (Tex. 2010) Local Government Code § 271.152. Water Authority 322 S.W.3d 192, Univ. of Tex. at El Discussing immunity where plaintiff sued governmental entity for workplace- 56 193, 202 (Tex. Paso v. Herrera related injuries. 2010) Colquitt v. 324 S.W.3d 539 Discussing immunity where plaintiff sued governmental entity for negligence and 57 Brazoria Cnty. (Tex. 2010) premises liability. Univ. of Tex. Sw. 324 S.W.3d 544 Discussing immunity where plaintiffs sued a governmental entity for the wrongful 58 Med. Ctr. at Dallas (Tex. 2010) death of their daughter. v. Est. of Arancibia

7 Tex. Lottery Explaining that the Declaratory Judgments Act waives sovereign immunity for Comm’n v. First 325 S.W.3d 628, 59 statutory challenges, thereby allowing suit against the Texas Lottery Commission State Bank of 631 (Tex. 2010) to permit an assignment of a lottery prize to proceed. DeQueen

The Univ. of Tex. at 327 S.W.3d 113, Discussing immunity where plaintiffs sued for premises liability. 60 Austin v. Hayes 115 (Tex. 2010)

Gilbert Tex. Constr., L.P. v. 327 S.W.3d 118, Briefly discussing immunity in the context of a suit for breach of contractor 61 Underwriters at 122 (Tex. 2010) between a building owner and a government contractor. Lloyd's London Franka v. 332 S.W.3d 367, 62 Discussing immunity in the context of a health care liability claim. Velasquez 370 (Tex. 2011) Univ. of Tex. Health Sci. Ctr. at 332 S.W.3d 395, 63 Discussing immunity in the context of a health care liability claim. San Antonio v. 397 (Tex. 2011) Bailey

333 S.W.3d 582, Discussing immunity in the context of the Texas Wrongful Imprisonment Act 64 In re Smith 587 (Tex. 2011) claim.

Travis Central 342 S.W.3d 54, 65 Appraisal Dist. v. 54–55 (Tex. Discussing immunity in the context of a retaliatory discharge claim. Norman 2011) LTTS Charter Sch., 342 S.W.3d 73, 66 Inc. v. C2 Constr., Discussing immunity in the context of a breach-of-contract claim. 75 (Tex. 2011) Inc.

8 City of Dallas v. 347 S.W.3d 231, Explaining Texas’s state constitution waived sovereign immunity where a plaintiff 67 VSC, LLC 236 (Tex. 2011) brought a claim under the Takings Clause of the Texas Constitution.

351 S.W.3d 460 (Tex. App.— Tex. Health & Austin 2011), Discussing immunity where Hospitals sought declaratory judgment and injunctive Hum. Servs. 68 aff’d in part, Comm’n v. El Paso relief against state agency. rev’d in part, 400 Cnty. Hosp. Dist. S.W.3d 72 (Tex. 2013) Lesley v. Veterans 352 S.W.3d 479, Discussing immunity in context of property dispute over mineral rights against the 69 Land Bd. of the 483–84 (Tex. Veterans Land Board, a state agency. State of Tex. 2011) City of Houston v. 353 S.W.3d 128, Discussing immunity in breach of contract suit by firefighters against City 70 Williams 134 (Tex. 2011) employer. Rolling Plains Groundwater 353 S.W.3d 756, Discussing immunity where groundwater conservation district sought past due 71 Conservation Dist. 759 (Tex. 2011) fees, penalties, and costs against city. v. City of Aspermont City of Dallas v. 354 S.W.3d 368, Discussing immunity in wage dispute alleging breach of contract and seeking 72 Albert 371 (Tex. 2011) declaratory relief. Texas Parks and 354 S.W.3d 384, 73 Wildlife Dept. v. 387–88 (Tex. Discussing immunity in context of declaratory judgment sought against city. Sawyer Trust 2011) Sharyland Water 354 S.W.3d 407, Discussing immunity in context of breach of contract claim and negligence claim 74 Supply Corp. v. 412 (Tex. 2011) against city. City of Alton

9 355 S.W.3d 618, Texas Dep’t of Discussing sovereign immunity where plaintiff sought declaratory judgment 75 620–21 (Tex. Transp. v. Sefzik against State agency. 2011)

In re Nestle USA, 359 S.W.3d 207, Explaining that a waiver of sovereign immunity for retrospective monetary relief 76 Inc. 212 (Tex. 2012) must be clear and unambiguous in suit seeking tax refunds.

City of Dallas v. 361 S.W.3d 560, Discussing immunity where firefighters sued governmental entity over unpaid 77 Martin 560 (Tex. 2011) wages.

361 S.W.3d 562, City of Dallas v. Discussing immunity where plaintiff asserted due process and unconstitutional 78 565, 568 (Tex. Stewart taking claim against governmental agency. 2012)

Oncor Elec. 369 S.W.3d 845, Delivery Co. v. Discussing immunity where a utilities provider sued a government entity to 79 848–49 (Tex. Dallas Area Rapid condemn an easement. 2012) Transit Holding that the Texas Commission on Human Rights Act (TCHRA) waives Mission Consol. 372 S.W.3d 629, immunity for school districts only when the plaintiff pleads facts that state a claim 80 Indep. Sch. Dist. v. 636 (Tex. 2012) under the statute, and that failure to establish a prima facie case deprives the court Garcia of jurisdiction due to sovereign immunity.

Hearts Bluff Game 381 S.W.3d 468, Discussing immunity where a plaintiff asserted an inverse condemnation claim 81 Ranch, Inc. v. State 476 (Tex. 2012) against the State.

Prairie View 381 S.W.3d 500, Discussing immunity where a plaintiff sued government entity over pay 82 A & M Univ. v. 510–11 (Tex. discrimination. Chatha 2012) Manbeck v. Austin 381 S.W.3d 528, Holding that governmental immunity bars an award of attorney fees against a 83 Indep. Sch. Dist. 529 (Tex. 2012) school district in a workers’ compensation case.

10 Tex. Dep’t of 388 S.W.3d 652 Discussing immunity where plaintiffs sued governmental entity in premises defect 84 Transp. v. Perches (Tex. 2012) and wrongful-death case. CTL/Thompson Tex., LLC v. Briefly discussing immunity where a plaintiff nonsuited a wrongful death suit after 390 S.W.3d 299, 85 Starwood a governmental entity raised a sovereign immunity argument in a plea to the 301 (Tex. 2013) Homeowner's jurisdiction. Ass’n, Inc. 392 S.W.3d 635, Briefly discussing immunity where plaintiff asserted takings claim and claim for 86 Riemer v. State 638 n.1 (Tex. trespass to try title against the State. 2013)

Rusk State Hospital 392 S.W.3d 88, 87 Discussing immunity in the context of a health care liability claim. v. Black 91 (Tex. 2012)

University of Texas Southwestern 398 S.W.3d 680, 88 Discussing immunity in the context of an anti-retaliation claim. Medical Center at 682 (Tex. 2013) Dallas v. Gentilello

City of Bellaire v. 400 S.W.3d 922 89 Discussing immunity in the context of a personal injury claim. Johnson (Tex. 2013)

University of 403 S.W.3d 851, Discussing immunity in the context of an anti-retaliation claim. 90 Houston v. Barth 853 (Tex. 2013) Texas Adjutant 408 S.W.3d 350, 91 General's Office v. Discussing immunity in the context of a personal injury claim. 352 (Tex. 2013) Ngakoue 408 S.W.3d 843, In re Michael N. Discussing immunity in the context of the Texas Wrongful Imprisonment Act 92 844–45 (Tex. Blair claim. 2013)

11 Dallas Metrocare 420 S.W.3d 39 93 Services v. Adolfo Discussing immunity in the context of a personal injury claim. (Tex. 2013) Juarez

City of Watauga v. 434 S.W.3d 586, 94 Discussing immunity in the context of an intentional tort claim. Gordon 587 (Tex. 2014) Texas Department 440 S.W.3d 611, 95 of Human Services Discussing immunity in the context of an anti-retaliation claim. 612 (Tex. 2014) v. Okoli Lubbock County Water Control and 442 S.W.3d 297, 96 Improvement Discussing immunity in the context of a breach of contract claim. 299 (Tex. 2014) District v. Church & Akin, L.L.C. Porretto v. Texas 448 S.W.3d 393, 97 General Land Discussing immunity in the context of a takings claim. 394 (Tex. 2014) Office Zachry Construction Corp. 449 S.W.3d 98, 98 v. Port of Houston 103–04 (Tex. Discussing immunity in the context of a breach of contract claim. Authority of Harris 2014) County Texas Commission 450 S.W.3d 520, 99 on Environmental Discussing immunity in the context of an anti-retaliation claim. 521 (Tex. 2014) Quality v. Resendez Texas Department of Aging and 453 S.W.3d 411, 100 Discussing immunity in the context of related tort and § 1983 claims. Disability Services 413 (Tex. 2015) v. Cannon

12 Ryder Integrated 453 S.W.3d 922, 101 Logistics, Inc. v. Discussing immunity in the context of a personal injury claim. 926 (Tex. 2015) Fayette County Klumb v. Houston Municipal 458 S.W.3d 1 Discussing immunity in the context of constitutional and breach of contract 102 Employees Pension (Tex. 2015) claims. System University of Texas 459 S.W.3d 48 103 at Arlington v. Discussing immunity in the context of a premises liability claim. (Tex. 2015) Williams Southwestern Bell 459 S.W.3d 578, Discussing immunity in the context of a declaratory judgment action and a related 104 Telephone, L.P. v. 582 (Tex. 2015) claim for an injunction. Emmett William Marsh 459 S.W.3d 590, 105 Rice University v. Discussing immunity in the context of various tort claims. 591 (Tex. 2015) Refaey Brown & Gay 461 S.W.3d 117, Assessing whether sovereign immunity could protect a private contractor where 106 Eng’g, Inc. v. 119, 123 (Tex. plaintiffs brought negligence claims against it. Olivares 2016)

San Antonio Water 461 S.W.3d 131, 107 Discussing immunity in the context of an anti-retaliation claim. System v. Nicholas 134 (Tex. 2015)

Suarez v. City of 465 S.W.3d 623, 108 Discussing immunity in the context of a premises liability claim. Texas City 626 (Tex. 2015)

Discussing immunity in the context of claims alleging statutory violations of the Beeman v. 468 S.W.3d 534, 109 Texas Human Resources Code arising from the Texas Department of Criminal Livingston 535 (Tex. 2015) Justice’s failure to provide accommodations for deafness.

13 Patel v. Texas Department of 469 S.W.3d 69, Discussing immunity in the context of a declaratory judgment action seeking to 110 Licensing and 74 (Tex. 2015) enjoin enforcement of various statutes and regulations regulating cosmetology. Regulation

Lawson v. City of 472 S.W.3d 667 111 Discussing immunity in the context of a premises liability claim. Diboll (Tex. 2015)

Cascos v. Tarrant 473 S.W.3d 780, Discussing immunity in the context of an action to recover attorneys’ fees for a 112 County Democratic 782 (Tex. 2015) successful defense of a prior action to remove a political candidate from a ballot. Party Texas Department 481 S.W.3d 640, 113 of Public Safety v. Discussing immunity in the context of a personal injury claim. 642 (Tex. 2015) Bonilla Houston Belt & 487 S.W.3d 154, Terminal Railway Discussing immunity in the context of an ultra vires action, where parties alleged 114 158–60 (Tex. Co. v. City of government actor improperly assess monetary charges. 2016) Houston University of Texas 542 S.W.3d 530, Discussing immunity where government employer did not promote first-year Health Science 115 532–34 (Tex. resident to second-year residency, and the former resident asserted breach of Center at Houston 2017) contract and various tort claims. v. Rios Holding that sovereign immunity barred dental service providers from asserting 561 S.W.3d 495 116 Nazari v. State counterclaims against the state and affirmed the dismissal of their third-party (Tex. 2018) claims against Xerox. 579 S.W.3d 354, Discussing sovereign immunity where former government attorney sued county Hillman v. Nueces 117 356–57 (Tex. for wrongful termination, seeking relief for lost wages and benefits, mental County 2019) anguish, pain and suffering, loss of earning capacity, and exemplary damages. PHI, Inc. v. Tex. 593 S.W.3d 296, Assessing whether sovereign immunity shielded a state agency where a plaintiff 118 Juvenile Just. 300–02 (Tex. sued the agency for negligently causing property damage under the TTCA. Dep’t 2019)

14 City of Holding that the Whistleblower Act’s ninety-day filing deadline is a jurisdictional 620 S.W.3d 375, 119 Madisonville v. prerequisite to suit, and failure to comply results in dismissal for lack of 377 (Tex. 2020) Sims jurisdiction due to governmental immunity. 635 S.W.3d 620, Holding ultra vires exception to sovereign immunity applies where state officials 120 Phillips v. McNeill 627–28 (Tex. fail to provide a statutorily required hearing, allowing suit to proceed for specific 2021) relief. City of Fort Worth 653 S.W.3d 176, Discussing immunity where plaintiffs sued governmental entity for wrongful 121 v. Pridgen 178 (Tex. 2022) termination under the Texas Whistleblower Act. Hidalgo Cnty. Water Improvement Dist. 669 S.W.3d 178, Holding governmental immunity does not apply to condemnation proceedings 122 No. 3 v. Hidalgo 188 (Tex. 2023) between political subdivisions. Cnty. Irrigation Dist. No. 1 Campbellton Road, 688 S.W.3d 105, Discussing immunity where plaintiff sued governmental entity for breach of 123 Ltd. v. City of San 108–09 (Tex. contract. Antonio 2024) San Jacinto River 688 S.W.3d 124, 124 Auth. v. City of Discussing immunity where two government entities litigated a contract dispute. 128 (Tex. 2024) Conroe

Tex. Dep’t of 690 S.W.3d 12 Discussing immunity where plaintiffs sued the State for negligence and inverse 125 Transp. v. Self (Tex. 2024) condemnation.

690 S.W.3d 296, Holding that governmental immunity is waived by statute for mandamus relief to 126 In re Rogers 299–300 (Tex. compel performance of a duty in connection with an election, allowing suit against 2024) a political subdivision’s board.

City of Houston v. 690 S.W.3d 60 Discussing immunity where plaintiffs sued a governmental entity, alleging 127 Sauls (Tex. 2024) wrongful death claims.

15 690 S.W.3d 644, Discussing immunity where plaintiffs challenged the constitutionality of Texas’s 128 State v. Zurawski 653–54 (Tex. anti-abortion laws. 2024)

Tex. Tech Univ. 691 S.W.3d 415 Discussing immunity where plaintiff sued two government entities for age-based 129 Sys. v. Martinez (Tex. 2024) discrimination.

Hensley v. State 692 S.W.3d 184, Assessing whether sovereign immunity applied to a state commission where a 130 Comm’n on Jud. 190, 200 (Tex. justice of the peace asserted claims under the Texas Religious Freedom Conduct 2024) Restoration Act and the Free Speech Clause of the Texas Constitution.

City of Buffalo v. 703 S.W.3d 350, Explaining a city did not enjoy governmental immunity where a plaintiff properly 131 Moliere 353 (Tex. 2024) asserts an ultra vires claim against it.

City of Austin v. 704 S.W.3d 437, Assessing whether sovereign immunity protected a city where a plaintiff asserted a 132 Powell 449 (Tex. 2024) recklessness claim under the Texas Tort Claims Act (TTCA).

704 S.W.3d 550, Briefly noting a public hospital might not enjoy sovereign immunity where a Dallas Cnty. Hosp. 133 552–53 (Tex. worker asserted three claims (disability discrimination, a “regarded as” disability Sys. v. Kowalski 2024) discrimination, and retaliation) against it. — S.W.3d —, Commons of Lake 2025 WL Noting sovereign immunity did not shield a municipality where a real estate 134 Houston, Ltd. v. 876710, at *1, *3 developer asserted a takings claim against it. City of Houston n.9 (Tex. 2025) Kensington Title- — S.W.3d —, Holding sovereign immunity waived where a real estate company asserted a claim Nevada, LLC v. 2025 WL 135 under Tex. Govt’ Code § 2001.038(a) against a state agency and sought a Tex. Dep’t of State 937478, at *1–2, declaratory judgment that would declare a licensing rule invalid. Health Servs. *4–5 (Tex. 2025)