DISMISS and Opinion Filed September 23, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00588-CV No. 05-22-00707-CV THE STATE OF TEXAS, Appellant V. XIMENA LOPEZ, M.D. AND CHILDREN’S MEDICAL CENTER AT DALLAS, Appellees
On Appeal from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. CC-22-02427-B
MEMORANDUM OPINION Before Chief Justice Burns, Justice Molberg, and Justice Goldstein Opinion by Chief Justice Burns The State of Texas intervened in the underlying lawsuit brought by Dr.
Ximena Lopez against Children’s Medical Center at Dallas (CMC). The State
appeals from the trial court’s interlocutory orders granting appellees’ agreed
temporary injunction and striking its petition in intervention. We questioned our
jurisdiction over both appeals. At the Court’s direction, the parties filed letter briefs
addressing the jurisdictional issues. Background
Dr. Lopez is a pediatric endocrinologist practicing at CMC. She filed a
lawsuit against CMC seeking a temporary restraining order, temporary injunction,
and original petition for permanent injunction and declaratory relief. By her lawsuit,
Dr. Lopez sought to restrain CMC from interfering in her treatment of patients with
gender dysphoria. Six days after Dr. Lopez filed her lawsuit, the State filed a petition
in intervention. Dr. Lopez filed special exceptions to the intervention, moved to
strike the intervention, and also asserted counterclaims against the State. On May
23, the trial court granted an agreed temporary injunction enjoining, in part, CMC
from interfering with Dr. Lopez’s providing gender affirming endocrinology care to
her patients. On June 14, the State filed a plea to the jurisdiction challenging the
trial court’s jurisdiction over Dr. Lopez’s claims against CMC and over the
counterclaims against it. Following a hearing on Dr. Lopez’s special exceptions, the
trial court signed an order on July 7, 2022 striking the State’s petition in intervention.
In the order, the trial court found (1) the State failed to show that it had a justiciable
interest that was more than contingent or remote, (2) the Attorney General’s Office
failed to establish its standing to intervene in the name of the State because there are
no state actors and the issues do not challenge the constitutionality of any law, (3)
no state interest is implicated to give rise to standing of the State to intervene, and
(4) Dr. Lopez nonsuited her counterclaims and, thus, the State has no justiciable
interest in the lawsuit as a counter-defendant.
–2– Order Striking Petition in Intervention
We questioned our jurisdiction in the State’s appeal of the order striking its
petition in intervention. In its letter brief, appellant concedes the review of the order
striking its petition in intervention is properly addressed in its pending petition for
writ of mandamus.
In both its notice of appeal of the order striking its petition in intervention and
its jurisdictional brief, however, the State proposes another path by which this Court
can review the order striking its petition in intervention. It does so by construing the
order striking its intervention as an order denying its plea to the jurisdiction which
is an appealable interlocutory order. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 51.014(a)(8). The State asked the trial court to consider its plea to the jurisdiction
before conducting the hearing on Dr. Lopez’s special exceptions to the intervention.
Because the trial court refused to do so, the State argues, the trial court implicitly
denied its plea to jurisdiction. However, in our view, the cases the State relies upon
do not support its position. See Thomas v. Long, 207 S.W.3d 334, 339-40 (Tex.
2006); Abbott v. Jenkins, No. 05-21-00733-CV, 2021 WL 5445813, at *5 n.3 (Tex.
App.—Dallas Nov. 22, 2021, pet. pending) (mem. op.). The plaintiff in Thomas
filed a motion for partial summary judgment on two of her claims and the defendant
filed a cross-motion for summary judgment in which he challenged the trial court’s
jurisdiction over those claims. See id. at 337. The trial court granted the plaintiff’s
motion and the defendant appealed. The court of appeals dismissed the appeal
–3– because the record did not contain an order denying the plea to the jurisdiction. The
Supreme Court reversed. In doing so, the court reasoned that the trial court’s
granting partial summary judgment constituted an implicit rejection of the
defendant’s jurisdictional challenges asserted in his cross-motion for summary
judgment because the trial court could not have reached the merits without subject
matter jurisdiction. Id. at 339-40. Unlike Thomas, in this case, the trial court did
not have to consider the merits of the case to determine whether to strike the State’s
intervention.
The State also relies on this Court’s opinion in Abbott v. Jenkins, No. 05-21-
00733-CV, 2021 WL 5445813, at *5 n.3 (Tex. App.—Dallas Nov. 22, 2021, pet.
pending) (mem. op.). In Abbott, the appellants, parties in the underlying case,
appealed from a temporary injunction over which we did have jurisdiction. See id.
at *1; TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4). The appellants had also
filed a plea to the jurisdiction in the case. Recognizing that an order granting a
temporary injunction enjoining the appellants is an implicit denial of their plea to
jurisdiction, this Court addressed both the order denying the plea to the jurisdiction
and the order granting the temporary injunction. See id. at *5 n.3. See also Tex.
Educ. Agency v. Houston I.S.D., No. 03-20-00025-CV, 2020 WL 7757365, at *1
(Tex. App.—Austin Dec. 30, 2020, pet. granted) (mem. op.) (same); and Beaumont
I.S.D. v. Guillory, No. 09-15-00531-CV, 2016 WL 2766078, at *5 (Tex. App.—
Beaumont May 12, 2016, no pet.) (mem. op.) (same).
–4– In the cases cited by the State, none of the appellants were parties who had
had a petition in intervention stricken. Moreover, in each case, the trial court made
a merits-based ruling involving the appellants. In contrast, in striking the State’s
intervention here, the trial court did not make any ruling on the merits that could be
construed as an implicit denial of its plea to the jurisdiction.
Order Granting Agreed Temporary Injunction
Because the State is no longer a party in the underlying lawsuit, we questioned
whether it lacks standing to appeal the agreed temporary injunction. Because
standing is a component of subject-matter jurisdiction, “an appeal filed by an
improper party must be dismissed.” State v. Naylor, 466 S.W.3d 783, 787 (Tex.
2015). “Generally only parties of record may appeal a trial court’s judgment.” In
re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 723 (Tex. 2006)). Standing requires
that the controversy adversely affect the party who filed the appeal. See McAllen
Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 234 (Tex. 2001).
In its letter brief, the State asserts it has standing to appeal the agreed
temporary injunction because it was a party at the time it filed the notice of appeal
of that order.
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DISMISS and Opinion Filed September 23, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00588-CV No. 05-22-00707-CV THE STATE OF TEXAS, Appellant V. XIMENA LOPEZ, M.D. AND CHILDREN’S MEDICAL CENTER AT DALLAS, Appellees
On Appeal from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. CC-22-02427-B
MEMORANDUM OPINION Before Chief Justice Burns, Justice Molberg, and Justice Goldstein Opinion by Chief Justice Burns The State of Texas intervened in the underlying lawsuit brought by Dr.
Ximena Lopez against Children’s Medical Center at Dallas (CMC). The State
appeals from the trial court’s interlocutory orders granting appellees’ agreed
temporary injunction and striking its petition in intervention. We questioned our
jurisdiction over both appeals. At the Court’s direction, the parties filed letter briefs
addressing the jurisdictional issues. Background
Dr. Lopez is a pediatric endocrinologist practicing at CMC. She filed a
lawsuit against CMC seeking a temporary restraining order, temporary injunction,
and original petition for permanent injunction and declaratory relief. By her lawsuit,
Dr. Lopez sought to restrain CMC from interfering in her treatment of patients with
gender dysphoria. Six days after Dr. Lopez filed her lawsuit, the State filed a petition
in intervention. Dr. Lopez filed special exceptions to the intervention, moved to
strike the intervention, and also asserted counterclaims against the State. On May
23, the trial court granted an agreed temporary injunction enjoining, in part, CMC
from interfering with Dr. Lopez’s providing gender affirming endocrinology care to
her patients. On June 14, the State filed a plea to the jurisdiction challenging the
trial court’s jurisdiction over Dr. Lopez’s claims against CMC and over the
counterclaims against it. Following a hearing on Dr. Lopez’s special exceptions, the
trial court signed an order on July 7, 2022 striking the State’s petition in intervention.
In the order, the trial court found (1) the State failed to show that it had a justiciable
interest that was more than contingent or remote, (2) the Attorney General’s Office
failed to establish its standing to intervene in the name of the State because there are
no state actors and the issues do not challenge the constitutionality of any law, (3)
no state interest is implicated to give rise to standing of the State to intervene, and
(4) Dr. Lopez nonsuited her counterclaims and, thus, the State has no justiciable
interest in the lawsuit as a counter-defendant.
–2– Order Striking Petition in Intervention
We questioned our jurisdiction in the State’s appeal of the order striking its
petition in intervention. In its letter brief, appellant concedes the review of the order
striking its petition in intervention is properly addressed in its pending petition for
writ of mandamus.
In both its notice of appeal of the order striking its petition in intervention and
its jurisdictional brief, however, the State proposes another path by which this Court
can review the order striking its petition in intervention. It does so by construing the
order striking its intervention as an order denying its plea to the jurisdiction which
is an appealable interlocutory order. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 51.014(a)(8). The State asked the trial court to consider its plea to the jurisdiction
before conducting the hearing on Dr. Lopez’s special exceptions to the intervention.
Because the trial court refused to do so, the State argues, the trial court implicitly
denied its plea to jurisdiction. However, in our view, the cases the State relies upon
do not support its position. See Thomas v. Long, 207 S.W.3d 334, 339-40 (Tex.
2006); Abbott v. Jenkins, No. 05-21-00733-CV, 2021 WL 5445813, at *5 n.3 (Tex.
App.—Dallas Nov. 22, 2021, pet. pending) (mem. op.). The plaintiff in Thomas
filed a motion for partial summary judgment on two of her claims and the defendant
filed a cross-motion for summary judgment in which he challenged the trial court’s
jurisdiction over those claims. See id. at 337. The trial court granted the plaintiff’s
motion and the defendant appealed. The court of appeals dismissed the appeal
–3– because the record did not contain an order denying the plea to the jurisdiction. The
Supreme Court reversed. In doing so, the court reasoned that the trial court’s
granting partial summary judgment constituted an implicit rejection of the
defendant’s jurisdictional challenges asserted in his cross-motion for summary
judgment because the trial court could not have reached the merits without subject
matter jurisdiction. Id. at 339-40. Unlike Thomas, in this case, the trial court did
not have to consider the merits of the case to determine whether to strike the State’s
intervention.
The State also relies on this Court’s opinion in Abbott v. Jenkins, No. 05-21-
00733-CV, 2021 WL 5445813, at *5 n.3 (Tex. App.—Dallas Nov. 22, 2021, pet.
pending) (mem. op.). In Abbott, the appellants, parties in the underlying case,
appealed from a temporary injunction over which we did have jurisdiction. See id.
at *1; TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4). The appellants had also
filed a plea to the jurisdiction in the case. Recognizing that an order granting a
temporary injunction enjoining the appellants is an implicit denial of their plea to
jurisdiction, this Court addressed both the order denying the plea to the jurisdiction
and the order granting the temporary injunction. See id. at *5 n.3. See also Tex.
Educ. Agency v. Houston I.S.D., No. 03-20-00025-CV, 2020 WL 7757365, at *1
(Tex. App.—Austin Dec. 30, 2020, pet. granted) (mem. op.) (same); and Beaumont
I.S.D. v. Guillory, No. 09-15-00531-CV, 2016 WL 2766078, at *5 (Tex. App.—
Beaumont May 12, 2016, no pet.) (mem. op.) (same).
–4– In the cases cited by the State, none of the appellants were parties who had
had a petition in intervention stricken. Moreover, in each case, the trial court made
a merits-based ruling involving the appellants. In contrast, in striking the State’s
intervention here, the trial court did not make any ruling on the merits that could be
construed as an implicit denial of its plea to the jurisdiction.
Order Granting Agreed Temporary Injunction
Because the State is no longer a party in the underlying lawsuit, we questioned
whether it lacks standing to appeal the agreed temporary injunction. Because
standing is a component of subject-matter jurisdiction, “an appeal filed by an
improper party must be dismissed.” State v. Naylor, 466 S.W.3d 783, 787 (Tex.
2015). “Generally only parties of record may appeal a trial court’s judgment.” In
re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 723 (Tex. 2006)). Standing requires
that the controversy adversely affect the party who filed the appeal. See McAllen
Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 234 (Tex. 2001).
In its letter brief, the State asserts it has standing to appeal the agreed
temporary injunction because it was a party at the time it filed the notice of appeal
of that order. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8). Being a party
at the time the notice of appeal was filed, however, does not mean that the State has
met the standing requirement that it be adversely affected by the temporary
injunction. The temporary injunction affects only Dr. Lopez and CMC, it does not
impact the State.
–5– Alternatively, the State asserts that it has standing to appeal the temporary
injunction because the University of Texas Southwestern Medical Center is bound
by the temporary injunction. It relies on the doctrine of virtual representation. To
benefit from the doctrine of virtual representation, the appellant must show “(1) it is
bound by the judgment; (2) its privity of estate, title, or interest appears from the
record; and (3) there is an identity of interest between the appellant and a party to
the judgment.” Naylor, 466 S.W.3d at 789. As noted above, the underlying lawsuit
does not involve the constitutionality of any state law. The State is not bound by the
temporary injunction and it does not share an interest with any party to the order.
Thus, we conclude State has not met the requirements for standing by way of virtual
representation.
Conclusion
Having determined we lack jurisdiction over both interlocutory orders, we
dismiss these appeals. See TEX. R. APP. P. 42.3(a).
/Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE
220588F.P05
–6– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
THE STATE OF TEXAS, Appellant On Appeal from the County Court at Law No. 2, Dallas County, Texas No. 05-22-00588-CV V. Trial Court Cause No. CC-22-02427- B. XIMENA LOPEZ, M.D. AND Opinion delivered by Chief Justice CHILDREN’S MEDICAL CENTER Burns. Justices Molberg and AT DALLAS, Appellees Goldstein participating.
In accordance with this Court’s opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellees XIMENA LOPEZ, M.D. AND CHILDREN’S MEDICAL CENTER AT DALLAS recover their costs of this appeal from appellant THE STATE OF TEXAS.
Judgment entered September 23, 2022
–7– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
THE STATE OF TEXAS, Appellant On Appeal from the County Court at Law No. 2, Dallas County, Texas No. 05-22-00707-CV V. Trial Court Cause No. CC-22-02427- B. XIMENA LOPEZ, M.D. AND Opinion delivered by Chief Justice CHILDREN’S MEDICAL CENTER Burns. Justices Molberg and AT DALLAS, Appellees Goldstein participating.
In accordance with this Court’s opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellees XIMENA LOPEZ, M.D. AND CHILDREN’S MEDICAL CENTER AT DALLAS recover their costs of this appeal from appellant THE STATE OF TEXAS.
–8–