Wayne Novy, by and Through His Legal Guardian Forrest Novy v. Texas Health and Human Services Commission And Chris Traylor, in His Official Capacity as Executive Commissioner of the Texas Health and Human Services Commission

ACCEPTED
03-15-00201-CV
6482860
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/13/2015 12:45:09 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00201-CV
_______________________________________
FILED IN
3rd COURT OF APPEALS
IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
AT AUSTIN, TEXAS 8/13/2015 12:45:09 PM
JEFFREY D. KYLE
_______________________________________ Clerk

WAYNE NOVY, by and through his legal guardian Forrest Novy,
Appellant,

vs.

TEXAS HEALTH AND HUMAN SERVICES COMMISSION and KYLE JANEK, in his
official capacity as Executive Commissioner of the Texas Health and Human
Services Commission,
Appellees.
_______________________________________

ON APPEAL FROM COUNTY COURT AT LAW NO. 1, TRAVIS COUNTY
______________________________________

JOINT MOTION BY ALL PARTIES TO ABATE APPELLATE PROCEEDINGS

The parties to this appeal—Appellant Wayne Novy (“Mr. Novy”), by

and through his legal guardian Forrest Novy, and Appellees Texas Health

and Human Services Commission (“THHSC”) and Chris Traylor, THHSC

Executive Commissioner of *—jointly move the Court to abate proceedings

in this case, as set forth below.

*
Under Tex. R. App. Proc. 7.2(a), Chris Traylor, the current THHSC Executive Com-
missioner should be substituted as a party for Kyle Janek, the former THHSC Executive
Commissioner.

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 1. The substantive issue in the legal dispute before the court below is

whether a 2014 decision to transfer Mr. Novy—termed here the “2014

transfer decision”—from his current residence at the Austin State Support-

ed Living Center (“Austin center”) to the San Antonio State Supported Liv-

ing Center (“San Antonio center”) was legally valid.

2. Home 282 at the Austin center is where Mr. Novy currently resides.

3. The 2014 transfer decision is under reevaluation at this time. At-

tached and incorporated herein is correspondence dated August 5, 2015,

from Commissioner Traylor (sometimes, “Traylor August 5th letter”) to the

head of the Family/Guardian Association for residents of the Austin center.

The effect of this letter is that closure of the Austin center’s home 282,

where Mr. Novy resides, is “temporarily halt[ed]” and that, for the time be-

ing, there is no “need for any [Austin center] residents to transition off cam-

pus.”

4. The letter goes on to state that, in ninety days, the agency will evalu-

ate the impact of the actions it outlines and then “weigh whether or not the

closure of home 782 is still necessary.”

5. All the parties to this appeal agree that, in light of the Traylor August

5th letter, it would serve the interests of justice and promote judicial economy

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for this Court to abate all further proceedings in this appeal for 120 days in

order to allow time for the agency evaluation outlined in the letter to be

completed and for those affected by the reevaluation to be notified of the re-

sult of that reevaluation. Thus, they jointly urge the Court to enter an order

granting relief to that effect, as outlined in ¶ 6, below.

6. It is urged by all parties that the Court enter an abatement order as

follows:

a. Abate this appeal for all purposes until 120 days from entry of
the abatement order or until the parties jointly move the lift
the abatement order, whichever is earlier; and

b. As part of the abatement order, extend the deadline for filing
of Appellant’s opening brief from the current deadline of Au-
gust 21, 2015, until a date no earlier than 10 days after lifting
of the abatement order under ¶ 6.a, above, unless the parties
jointly submit that the controversy between them is moot.

7. In light of the pending deadline for Appellant’s opening brief, the

parties jointly urge the Court to act on this motion as promptly as reasonably

possible.

Wherefore, based on the foregoing matters, the parties to this appeal

jointly urge the Court to grant this Joint Motion by All Parties to Abate Ap-

pellate Proceedings.

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Respectfully submitted,

__/s/ Renea Hicks______
Renea Hicks
State Bar No. 09580400
LAW OFFICE OF MAX RENEA HICKS
101 West 6th Street, Suite 504
Austin, Texas 78701-2934
(512) 480-8231
(512) 480-9105 fax
rhicks@renea-hicks.com

ATTORNEY FOR APPELLANT

__/s/ Eugene A. Clayborn______
EUGENE A. CLAYBORN
State Bar No.: 00785767
Assistant Attorney General
Deputy Chief, Administrative Law Divi-
sion
O FFICE OF THE A TTORNEY G ENERAL OF
T EXAS
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-3204
Facsimile: (512) 320-0167
eugene.clayborn@texasattorneygeneral.gov

ATTORNEY FOR APPELLEES

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 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Joint Motion by All
Parties to Abate Appellate Proceedings has been served through the elec-
tronic filing system on the following counsel of record for the appellees on
August 13, 2015:

Eugene A. Clayborn, Assistant Attorney General
Deputy Chief, Administrative Law Division
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
eugene.clayborn@texasattorneygeneral.gov.

_/s/ Renea Hicks___________
Renea Hicks

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 TEXAS HEALTH AND HUMAN SERVICES COMMISSION

Cl-IRIS TRAYLOR
ExECUTIVE COMMISSIONER

August 5,2015

Ms. Nona Rogers
5308 Gladstone Dr.
Austin, Texas 78723

RE: Austin State Supported Living Center

Dear Ms. Rogers:

Thank you for arranging for members of the Austin State Supported Living Center
Family/Guardian Association to meet with me and share their perspectives regarding the home
closures at the Austin State Supported Living Center (SSLC). Although I am aware of the
challenges families face when making these difficult decisions for their loved ones, it is always
helpful to hear directly from those affected by our decisions.

As we discussed in our meeting, reducing the number of residents served in Austin has decreased
how often staff have had to work double shifts and long shifts. The census reduction also has
allowed us to reduce overtime, despite having fewer staff members employed at the center.
Active treatment and regulatory compliance have improved, and the Department of Justice
independent monitors have noted that residents are now receiving higher quality services. Our
staffing levels have not stabilized, and we are still examining whether the center’s improvements
can be sustained.

Three homes identified for closure remain open homes 782, 784, and 789. Given that, we plan
to offer the two men residing in home 784 the opportunity to move to home 782. We also will
offer the two women residing in home 789 the opportunity to move to other homes at the center,
and we will temporarily halt the closure of home 782, allowing residents there to remain at the
Austin SSLC for now.

These steps will allow us to close homes 784 and 789 without the need for any residents to
transition off campus. In 90 days, we will examine the impact of our staff recruiting efforts, our
continued training and work with staff, and the impact of the two home closures above. At that
time, we will weigh whether or not the closure of home 782 is still necessary.

P.O. Box 13247 • Austin, Texas 78711 • 4900 North Lamar, Austin, Texas 78751 • (512)424-6500
Ms. Nona Rogers
August 5, 2015
Page 2

I encourage you to continue to work with Laura Cazabon-Braly. Director of the Austin SSLC. if
you or any of your members have specific concerns related to the care and treatment your loved
ones receive at the center. Additionally, you can contact Scott Schalchlin, Assistant
Commissioner for the SSLCs, by phone at (512) 438-3076 or by email at
Scott.Schalchlin@dads.state.tx.us. Thank you for your ongoing advocacy for the residents at the
Austin SSLC, and I look forward to continuing our dialogue about how we can best serve them.

Chris Traylor