ACCEPTED
03-15-00325-CV
8371741
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/28/2015 9:57:31 AM
JEFFREY D. KYLE
CLERK
No. 03-15-00325-CV
_______________________________________________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS 12/28/2015 9:57:31 AM
AT AUSTIN JEFFREY D. KYLE
Clerk
_______________________________________________________________
TEXAS HEALTH AND HUMAN SERVICES COMMISSION
Appellant,
v.
JESSICA LUKEFAHR
Appellee.
________________________________________________________________
On Appeal from the 345th Judicial District Court
of Travis County, Texas
Cause No. D-1-GN-14-002158
The Honorable Stephen Yelenosky Presiding
__________________________________________________________________
APPELLANT’S OPPOSED MOTION TO STRIKE
MATERIAL OUTSIDE THE RECORD
__________________________________________________________________
KEN PAXTON KARA HOLSINGER
Attorney General of Texas Assistant Attorney General
State Bar No. 24065444
CHARLES E. ROY OFFICE OF THE ATTORNEY GENERAL
First Assistant Attorney General OF TEXAS
Administrative Law Division
JAMES E. DAVIS P.O. Box 12548, Capitol Station
Deputy Attorney General for Civil Austin, Texas 78711-2548
Litigation Telephone: (512) 475-4203
Facsimile: (512) 320-0167
DAVID A. TALBOT, JR. kara.holsinger@texasattorneygeneral.gov
Chief, Administrative Law Division
COUNSEL FOR APPELLANT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Appellant Texas Health and Human Services Commission
(“HHSC”) and files this Opposed Motion to Strike Material Outside the Record.
Appellee’s Response Brief of December 17, 2015 includes “Appendix B,” which is
a partial transcription of an electronic recording of a Health and Human Services
Commission Medical Care Advisory Committee meeting of June 9, 2015. HHSC
moves to strike Appendix B, and those portions of Appellee’s Reply Brief that rely
on Appendix B, because it was not presented to or relied on by the trial court in
rendering its judgment. Appendix B is not part of the Clerk’s Record or otherwise
made a part of the record on appeal.
Texas Rule of Appellate Procedure 34.1 states that “[t]he appellate record
consists of the clerk’s record and, if necessary to the appeal, the reporter’s record.”
Appendix B does not appear in, nor is it referenced in, any pleading that is a part of
the clerk’s record. This Court may only review the record as filed and may not
consider documents that are not in the record and were not considered by the trial
court. Warriner v. Warriner, 394 S.W.3d 240, 254 (Tex. App.—El Paso 2012, no
pet.) (“Appellate courts cannot review documents not included in the record.
Documents attached to a brief as an exhibit or an appendix, but not appearing in
the record, cannot be considered on appellate review, save for limited exceptions
not relevant here.”); Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex.
App.—Dallas 2005, pet. denied) (“[A]n appellate court cannot consider documents
or hearings that are cited in the brief and attached as appendices if they are not
formally included in the record on appeal.”). As Appendix B does not appear in the
record, this Court should not consider it.
PRAYER
Accordingly, as Appendix B to Appellee’s Response Brief of December 17,
2015 consists of material not included in the record on appeal, this Motion to
Strike should be granted and the Court should not consider Appendix B or the
arguments in Appellee’s Response Brief supported by this document.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil
Litigation
DAVID A. TALBOT, JR.
Chief, Administrative Law Division
/s/ Kara Holsinger
KARA HOLSINGER
Assistant Attorney General
State Bar No. 24065444
Office of the Attorney General of Texas
Administrative Law Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
2
Telephone: (512) 475-4203
Facsimile: (512) 320-0167
kara.holsinger@texasattorneygeneral.gov
Attorneys for Appellant
CERTIFICATE OF CONFERENCE
The undersigned counsel for Appellant certifies that she has conferred with
counsel for Appellee regarding the foregoing Motion to Strike and has been
advised that Appellee opposes the motion.
/s/ Kara Holsinger
KARA HOLSINGER
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Motion to Strike was served via e-
serve and e-mail on this the 28th day of December, 2015, to the following:
Maureen O’Connell
Texas Bar No. 00795949
Southern Disability Law Center
1307 Payne Avenue
Austin, Texas 78757
Telephone: 512-458-5800
Facsimile: 512-458-5850
moconnell458@gmail.com
Attorney for Appellee
/s/ Kara Holsinger
KARA HOLSINGER
Assistant Attorney General
3
Texas Health and Human Services Commission v. Jessica Lukefahr
Combined Opinion