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 ( 2015 )

ACCEPTED 03-15-00201-CV 7821593 THIRD COURT OF APPEALS AUSTIN, TEXAS 11/13/2015 1:37:38 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 11/13/2015 1:37:38 PM JEFFREY D. KYLE _______________________________________ Clerk WAYNE NOVY, by and through his legal guardian Forrest Novy, Appellant, vs. TEXAS HEALTH AND HUMAN SERVICES COMMISSION and CHRIS TRAYLOR 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 STATUS REPORT AND MOTION TO EXTEND ABATEMENT All of 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, Execu- tive Commissioner of THHSC*—provide this joint status report to the Court and move the Court to extend the abatement of the appeal ordered in the Memorandum Opinion of August 21, 2015 (“abatement order”). * 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. 1 I. JOINT STATUS REPORT 1. The Court’s abatement order abated the appeal and tolled all filing deadlines, but directed that, without further order, the abatement would end on December 18, 2015. It also instructed the parties to submit by that date either a status report or a motion to dismiss. The parties jointly submit this status report, along with a joint motion to extend the period of abatement. See Part II, below. 2. The substantive issue in this legal dispute is whether the 2014 trans- fer decision concerning the appellant, Mr. Novy, is legally valid. The basis for the original joint motion to abate was that the 2014 transfer decision was being re-evaluated. At the time the previous joint motion was filed, it was an- ticipated that the re-evaluation would be completed in ninety days. 3. This re-evaluation period has since been extended another ninety days or so. On or about November 5, 2015, notice was provided that the pe- riod of re-evaluation was being extended and should be completed by some- time in February 2016. This new extension means that whether the substan- tive legal dispute is going to remain a live controversy remains an open ques- tion, one which will not be answered until sometime shortly before March 1, 2016. 2 II. JOINT MOTION TO EXTEND ABATEMENT PERIOD 4. In light of the matters set forth in the foregoing status report, the par- ties to this appeal agree that it would serve the interests of justice and pro- mote judicial economy for the Court to continue in effect the abatement of all further proceedings in this appeal in order to allow time for the re- evaluation to be completed and for those affected by the re-evaluation to be notified of, and have at least a short time to consider, the result of that re- evaluation. The parties suggest that the abatement be extended until at least March 18, 2016. 5. It is further urged by the parties that the order extending the abate- ment include a provision that the briefing schedule be such that the appel- lant’s opening brief (if one remains necessary at the end of the abatement pe- riod) be due no earlier than fifteen days from the end of the abatement peri- od. This approach would avoid potential confusion and uncertainty about whether the opening brief would otherwise be due on the very same day that the abatement period ends. Wherefore, based on the foregoing matters, the parties to this appeal jointly urge the Court to grant this Joint Motion, extend the abatement peri- 3 od until March 18, 2016, and direct that any opening brief by the appellant be due fifteen days from the end of the abatement period. 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 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this Joint Status Report and Motion to Extend Abatement has been served through the electronic fil- ing system on the following counsel of record for the appellees on November 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 5