Texas Health and Human Services Commission Department of State Health Services HHSC Executive Commissioner Charles Smith DSHS Commissioner John Hellerstedt, M.D. And DSHS Hearing Officer Elaine Snow v. Jane Doe

ACCEPTED
03-16-00657-CV
14452769
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/27/2016 12:19:11 PM
JEFFREY D. KYLE
CLERK
No. 03-16-00657-CV
______________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT
AUSTIN, TEXAS
______________________________ 12/27/2016 12:19:11 PM
JEFFREY D. KYLE
Texas Health and Human Services Commission, Department of StateClerkHealth
Services, Executive Commissioner Chris Traylor, Commissioner John
Hellerstedt, M.D., and Hearing Officer Elaine Snow for the State of Texas,
Defendants/Appellants,

v.

Jane Doe,
Plaintiff/Appellee

On Appeal from Cause No. D-1-GN-16-002113, in the
200th District Court of Travis County, Texas
______________________________

REPLY BRIEF OF APPELLANTS
_____________________________
KEN PAXTON NATALEE B. MARION
Attorney General of Texas Texas Bar No. 24075362
JEFFREY C. MATEER Assistant Attorney General
First Assistant Attorney General General Litigation Division
P.O. Box 12548,
BRANTLEY STARR Capitol Station
Deputy First Assistant Attorney Austin, Texas 78711-2548
General Phone (512) 463-2120
JAMES E. DAVIS Fax (512) 320-0667
Deputy Attorney General for Civil Natalee.marion@oag.texas.gov
Litigation
ANGELA V. COLMENERO ATTORNEYS FOR APPELLANTS
Chief-General Litigation Division
 TABLE OF CONTENTS

Table of Contents ...................................................................................................... ii
Index of Authorities ................................................................................................. iii
Argument & Authorities ............................................................................................2
I. The trial court lacks jurisdiction because Doe’s claims are
barred by sovereign immunity and Doe cannot replead to
cure any pleading deficiencies. ............................................................. 2
II. The Administrative Procedures Act does not confer
jurisdiction over Doe’s claims............................................................... 3
Prayer .........................................................................................................................7
Certificate of Service .................................................................................................9
Certificate of Compliance ..........................................................................................9

ii
 INDEX OF AUTHORITIES
Cases
Arizona v. United States,
132 S. Ct. 2492, 183 L. Ed. 2d 351 (2012) ............................................................4
City of El Paso v. Heinrich,
284 S.W.3d 366 (Tex. 2009) ..............................................................................2, 5
Combs v. City of Webster,
311 S.W.3d 85 (Tex. App.—Austin 2009, pet. denied) .........................................2
Creedmoor-Maha Water Supply Corp. v. Texas Comm'n on Envtl.
Quality,
307 S.W.3d 505 (Tex. App.—Austin 2010) ......................................................2, 5
Garcia v. Kerry,
557 F. App'x 304 (5th Cir. 2014) ...........................................................................4
Texas A & M Univ. Sys. v. Koseoglu,
233 S.W.3d 835 (Tex. 2007) ..................................................................................2
Texas Comm'n on Envtl. Quality v. City of Waco,
413 S.W.3d 409 (Tex. 2013) ..................................................................................3
Texas Comm'n of Licensing & Regulation v. Model Search Am., Inc.,
953 S.W.2d 289 (Tex. App.—Austin 1997, no writ) .............................................6
Texas Dep’t of Transp. v. Sefzik,
355 S.W.3d 618 (Tex. 2011) (per curiam) .........................................................2, 7
Texas Dep't of Ins. v. State Farm Lloyds,
260 S.W.3d 233 (Tex. App.—Austin 2008) ..........................................................3
Texas Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc.,
145 S.W.3d 170 (Tex. 2004) ..................................................................................3
Texas Dep't of Transp. v. Jones,
8 S.W.3d 636 (Tex. 1999) ......................................................................................2
Statutes
25 Tex. Admin. Code § 1.51-1.55 .........................................................................3, 4
25 Tex. Admin. Code § 181.21 ..............................................................................4, 6

iii
Tex. Gov't Code § 2001.003 ......................................................................................4
Tex. Gov't Code § 2001.171 ......................................................................................3
Tex. Health & Safety Code § 191.033 .......................................................................6
Rules
Tex. R. App. P. 9.4.....................................................................................................7

iv
 No. 03-16-00657-CV
______________________________

IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT
______________________________

Texas Health and Human Services Commission, Department of State Health
Services, Executive Commissioner Chris Traylor, Commissioner John
Hellerstedt, M.D., and Hearing Officer Elaine Snow for the State of Texas,

Defendants/Appellants,

v.

Jane Doe,

Plaintiff/Appellee

On Appeal from Cause No. D-1-GN-16-002113, in the
200th District Court of Travis County, Texas
______________________________

REPLY BRIEF OF APPELLANTS
_____________________________

To the Honorable Justices of the Third Court of Appeals:

Appellants (“HHSC Defendants”) file this Reply Brief to briefly address the

arguments raised by Appellee Doe.

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 ARGUMENT & AUTHORITIES

I. The trial court lacks jurisdiction because Doe’s claims are barred by
sovereign immunity and Doe cannot replead to cure any pleading
deficiencies.

In a suit against state agencies and state officials, sovereign immunity

generally deprives the trial court of jurisdiction. Texas A & M Univ. Sys. v.

Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007), Texas Dep't of Transp. v. Jones, 8

S.W.3d 636, 638 (Tex. 1999) (per curiam). To proceed, the plaintiff must either

plead and prove a waiver of immunity, or plead and prove that sovereign immunity

is inapplicable because the suit is not against the State, but rather against a state

official acting ultra vires—that is, without legal authority. City of El Paso v.

Heinrich, 284 S.W.3d 366, 37 (Tex. 2009); Creedmoor-Maha Water Supply Corp.

v. Texas Comm'n on Envtl. Quality, 307 S.W.3d 505, 51 (Tex. App. 2010); Combs

v. City of Webster, 311 S.W.3d 85, 94 (Tex. App.—Austin 2009, pet. denied). For

the reasons set forth in HHSC Defendants’ brief and this reply brief, Doe fails to

plead and prove a waiver of immunity or plead and prove that her suit is not against

the State but against a state official acting ultra vires. Further, Doe is not entitled to

an opportunity to replead because the jurisdictional defects in her pleadings are

incurable. Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 623 (Tex. 2011) (per

curiam).

2
II. The Administrative Procedures Act does not confer jurisdiction over
Doe’s claims.
As a threshold matter, Doe’s live petition asserted only a Uniform Declaratory

Judgment Act, Texas Civil Remedies Code § 37.001, et seq., claim and a request for

injunctive relief. CR 3-17. In response to the HHSC Defendants’ plea to the

jurisdiction, Doe asserted jurisdiction was proper under the Administrative

Procedures Act (“APA”), Tex. Gov't Code Ann. § 2001.171 (West). Appellee’s

Brief at 9-13. Although Doe asserts jurisdiction is proper under § 2001.171, Doe

has failed to establish the hearing held pursuant to the Fair Hearing Procedures was

a “contested case” that determined Doe’s rights, duties or privileges. 25 Tex. Admin.

Code § 1.51-1.55.

The APA is a procedural act, and does not independently provide a right to a

contested case hearing. Texas Comm'n on Envtl. Quality v. City of Waco, 413

S.W.3d 409, 423 (Tex. 2013); Texas Dep't of Ins. v. State Farm Lloyds, 260 S.W.3d

233, 243–44 (Tex. App. 2008). § 2001.171 provides that a person aggrieved by a

final decision in a contested case is entitled to judicial review. Tex. Gov't Code Ann.

§ 2001.171; see Texas Dep't of Protective & Regulatory Servs. v. Mega Child Care,

Inc., 145 S.W.3d 170, 19 (Tex. 2004) (holding that § 2001.171 “provides a limited

waiver of sovereign immunity”). But, the fair hearing conducted by the HHSC

Defendants was not a contested case under § 2001.171. Section 1.51 of the Texas

Administrative Code provides that the fair hearing procedures apply to any “hearing
3
not required to be a contested case hearing under the provisions of the APA.” 25

Tex. Admin. Code § 1.51(b)(2)(H). Thus, a hearing under the Fair Hearing

Procedures is not a “contested case” within the APA’s definition.

Further, the Hearing Officer’s determination that Doe’s birth certificate

should not issue because it was based on false information was not a determination

of Doe’s rights, duties, or privileges as a citizen. See Tex. Gov’t Code Ann. §

2001.003(1) (West) (defining a contested case as a proceeding “in which the legal

rights, duties, or privileges of a party are to be determined by a state agency after an

opportunity for adjudicative hearing”). Doe argues the Hearing Officer’s

determination to refuse to issue a document based on false information “strip[ped]

her of her birthright citizenship.” Appellee’s Brief at 8. But, the HHSC Defendants

do not have authority to strip Doe of her citizenship, or to determine her rights or

privileges as a citizen. Garcia v. Kerry, 557 F. App’x 304 (5th Cir. 2014) (“The

federal government has ‘broad, undoubted power over the subject of immigration

and the status of aliens.’” (quoting Arizona v. United States, 132 S. Ct. 2492, 2498,

183 L. Ed. 2d 351 (2012))).

The HHSC Defendants do have authority to refuse to issue a birth certificate

based upon receipt of information indicating the birth certificate was falsified. 25

Tex. Admin. Code § 1.51-1.55; 181.21. Here, as detailed in the Hearing Officer’s

order, the Hearing Officer was presented with two affidavits from the midwife,

4
Rosalinda Esquivel. CR 20-25. One affidavit—the 1994 affidavit—was submitted

in accordance with Esquivel’s guilty plea to two counts of falsely procuring evidence

of citizenship, and identified Doe by name as one of the persons for whom Esquivel

falsely procured evidence of citizenship. CR 24-25. The second affidavit—the 2014

affidavit—was submitted for the hearing, and does not reference the 1994 affidavit

or make any attempt to distinguish the statements in the 1994 affidavit. CR 24-25.

Although Doe alleges the 1994 affidavit was coerced, there is nothing to support her

allegation and her allegation does not establish the trial court’s jurisdiction over her

case. CR 24-25. The Hearing Officer determined the 2014 affidavit was “not

believable” for several reasons—among them the complete failure to reference the

1994 affidavit, and the presence of a Mexican birth certificate—and relied upon the

1994 affidavit. CR 24-25. Accordingly, Doe has not established the trial court has

jurisdiction under the APA, nor has Doe established a violation of her constitutional

rights.

III. The trial court lacks jurisdiction because Doe’s ultra vires claims are
barred by sovereign immunity and Doe cannot replead to cure any
pleading deficiencies.
Likewise, Doe cannot create judicial review through an ultra vires action. To

sustain an ultra vires claim, a plaintiff must plead and prove a violation of law based

on an act outside the defendant official’s discretion. City of El Paso v. Heinrich,

284 S.W.3d 366, 372 (Tex. 2009); Creedmoor-Maha Water Supply Corp. v. Tex.

5
Comm’n on Envtl. Quality, 307 S.W.3d 505, 514 (Tex. App.—Austin 2010). Doe

makes no such effort. In her response brief, Doe merely asserts in conclusory

fashion that HHSC Defendants’ “acted outside their authority.” See Appellee’s Brief

at 14. Nowhere does it articulate specifically how HHSC Defendants’ actions were

outside their discretion.

Rather, there cannot be an ultra vires claim because the HHSC Defendants

are expressly provided the statutory and regulatory authority for all of the actions

they took. See Appellants’ Brief at 3-5 (setting out relevant statutory and regulatory

provisions). In particular, HHSC Defendants have the discretion to refuse to issue a

certified copy of a record based on information the State Registrar receives that

contradicts the information shown in the record, including information based on

affidavits attesting to the falsification of information in a record. See Tex. Health &

Safety Code § 191.033; 25 Tex. Admin. Code § 181.21(b)(3). Simply because Doe

believes that the HHSC Defendants made a mistake in judgment while exercising

their discretion, does not mean they acted ultra vires. Tex. Comm’n of Licensing &

Regulation v. Model Search Am., Inc., 953 S.W.2d 289, 292 (Tex. App.— Austin

1997, no writ) (that officials “might decide ‘wrongly’” does not vitiate its authority

to act (quoting N. Alamo Water Supply Corp. v. Tex. Dep’t of Health, 839 S.W.2d

455, 459 (Tex. App.—Austin 1992, writ denied))).

6
 As a result, because HHSC Defendants cannot have acted ultra vires, the

jurisdictional defects in Doe’s pleadings are incurable. Texas Dep’t of Transp. v.

Sefzik, 355 S.W.3d 618, 623 (Tex. 2011) (per curiam).

PRAYER

For the reasons set forth herein and in Appellants’ brief, Appellants

respectfully request that this Court REVERSE the district court’s denial of the

HHSC Defendants’ Plea to the Jurisdiction and RENDER judgment in favor of

Appellants, dismissing each of Appellee’s claims with prejudice.

7
Respectfully submitted,

KEN PAXTON
Texas Attorney General

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

JAMES E. DAVIS
Deputy Attorney General for Civil
Litigation

ANGELA V. COLMENERO
Chief, General Litigation Division

/s/ Natalee B. Marion
NATALEE B. MARION
Texas Bar No. 24075362
Assistant Attorney General
Texas Attorney General’s Office
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 463-2120
(512) 320-0667 FAX
natalee.marion@oag.state.gov

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 CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing was filed electronically
and that notice of this filing will be sent to the following persons through File &
Serve Xpress’s electronic filing system and e-mail on December 27, 2016:

Susan G. Morrison
919 Congress Ave., Ste. 900
Austin, TX 78701
smorrison@thefowlerlawfirm.com

ATTORNEY FOR APPELLEE

/s/ Natalee B. Marion
NATALEE B. MARION
Assistant Attorney General

CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. P. 9.4(i)(3), the undersigned Assistant Attorney
General hereby certifies that the preceding document complies with the type-
volume limits in Tex. R. App. P. 9.4.

1. The brief contains: 2,074 words; and

2. has been prepared using:
Microsoft Word in 14 pt. Times New Roman conventional typeface
Font with 12 pt. footnotes.

The undersigned understands that a material misrepresentation in completing
this certificate, or circumvention of the type-volume limits in Tex. R. App. P.
9.4, may result in the court's striking the brief and prohibiting the party from
filing further documents of the same kind.

/s/ Natalee B. Marion
NATALEE B. MARION
Assistant Attorney General

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