Troy W. Simmons, D.D.S., P.C. and Troy W. Simmons, D.D.S. v. Texas Health and Human Services Commission

Opinion

ACCEPTED 12-14-00256-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 3/11/2015 7:50:21 PM CATHY LUSK CLERK

No. 12-14-00256-CV ______________________________________________________________________________ FILED IN IN THE 12th COURT OF APPEALS COURT OF APPEALS TYLER, TEXAS FOR THE 3/11/2015 7:50:21 PM TWELFTH SUPREME JUDICIAL DISTRICT CATHY S. LUSK OF Clerk TEXAS AT TYLER, TEXAS ______________________________________________________________________________

TROY W. SIMMONS, D.D.S., P.C. AND TROY W. SIMMONS, D.D.S., Appellants,

vs.

TEXAS HEALTH AND HUMAN SERVICES COMMISSION, Appellee. ______________________________________________________________________________

Appeal from the County Court At Law No.2 of Gregg, County, Texas ______________________________________________________________________________

MOTION FOR REHEARING

TO THE HONORABLE COURT OF APPEALS:

TROY W. SIMMONS, D.D.S., P.C. and TROY W. SIMMONS, D.D.S., Appellants in

the cause, make this Motion for Rehearing of the judgment of the Court rendered on February

27, 2015, and in support of said motion would respectfully show the Court the following:

I.

1. Point of Error: The Court of Appeals erred in affirming the trial court’s judgment

on the basis that the Appellee, Texas Health and Human Services Commission, did not waive its

sovereign immunity by its cause of action against the Appellants. 2. Argument and Authorities: The Appellants contend that the Appellee waived its

sovereign immunity when it filed claims for affirmative (monetary) relief against the Appellants

before the State Office of Administrative Hearings below. When a state entity files a cause of

action seeking monetary relief, it has consented to waive its sovereign immunity concerning any

action related to the state entity’s cause of action. See Kinnear v. Texas Commission on Human

Rights, 14 S.W.3d 299, 300 (Tex. 2000). The orders of the Administrative Law Judge that are

sought to be construed by the Appellants’ declaratory judgment action arose directly from the

cause of action filed by the Appellee. Once a state entity asserts affirmative claims for monetary

relief, it must participate in the litigation as an ordinary litigant. The Appellants’ declaratory

judgment action is “defensive” to the cause of action of the Appellee, thus the trial court had the

requisite jurisdiction to entertain the Appellants’ declaratory judgment cause of action. See, e.g.,

Reata Construction Corp. v. City of Dallas, 197 S.W.3d 371, 377 (Tex. 2006). The facts of the

case at bar are directly on point and the doctrine of stare decisis requires this Court be bound by

the recitations of the Supreme Court of Texas.

WHEREFORE, PREMISES CONSIDERED, Appellants request that the Court grant this

motion and that the judgment of the trial court be reversed and the case remanded with

instructions to order a new trial.

By:/s/ Joseph R. Willie, II, D.D.S., J.D. Joseph R. Willie, II, D.D.S., J.D. 4151 Southwest Freeway, Suite 490 Houston, Texas 77027 (713) 659-7330 (713) 599-1659 (FAX) SBOT# 21633500 attyjrwii@wisamlawyers.com

ATTORNEY FOR APPELLANTS TROY W. SIMMONS, D.D.S., P.C. AND TROY W. SIMMONS, D.D.S. CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was served via e- service to Jennifer L. Hopgood, Assistant Attorney General, P.O. Box 12548, Capitol Station, Austin, Texas 78711-2548, on the 11th day of March, 2015.

/s/ Joseph R. Willie, II, D.D.S., J.D. Joseph R. Willie, II, D.D.S., J.D.