M&M Orthodontics P.A.and Harlingen Family Dentistry v. Texas Health and Human Services Commission Dr. Kyle Janek, in His Official Capacity as the Executive Commissioner of Texas Health and Human Services Commission Carole Hurley, Chief Administrative Law Judge for the Texas Health and Human Services Commiss ( 2014 )

ACCEPTED
03-14-00548-CV
3619363
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/30/2014 3:31:38 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00548-CV
In the Third Court of Appeals FILED IN
Austin, Texas 3rd COURT OF APPEALS
AUSTIN, TEXAS
______________________________
12/30/2014 3:31:38 PM
JEFFREY D. KYLE
M & M ORTHODONTICS P.A., HARLINGEN FAMILY DENTISTRY , P.C.,
Clerk
Appellants,
v.
TEXAS HEALTH AND HUMAN SERVICES COMMISSION, DR. KYLE JANEK, IN HIS
OFFICIAL CAPACITY AS THE EXECUTIVE COMMISSIONER OF TEXAS HEALTH AND
HUMAN SERVICES COMMISSION, CAROLE HURLEY, CHIEF ADMINISTRATIVE LAW
JUDGE FOR THE TEXAS HEALTH AND HUMAN SERVICES COMMISSION, JUDGE KEITH
GRANTHAM OF THE APPEALS DIVISION OF TEXAS HEALTH AND HUMAN SERVICES
COMMISSION, AND RICK GILPIN, ADMINISTRATIVE LAW JUDGE OF THE APPEALS
DIVISION TEXAS HEALTH AND HUMAN SERVICES COMMISSION,
Appellees.
______________________________
On Appeal from the 345th Judicial District Court of Travis County, Texas
Trial Court Cause No. D-1-GN-14-001109
______________________________
UNOPPOSED JOINT MOTION TO EXTEND
TIME TO FILE APPELLEES’ BRIEF
______________________________
TO THE HONORABLE JUDGES OF THE THIRD COURT OF APPEALS:
Now come Appellees, Administrative Law Judges Carole Hurley, Keith
Grantham, and Rick Gilpin (“the ALJ Appellees”); and Texas Health and Human
Services Commission (“HHSC”) and Dr. Kyle Janek, in his official capacity as the
Executive Commissioner of Texas Health and Human Services Commission
(“Dr. Janek”) (collectively, “the HHSC Appellees”), and file this Unopposed Joint
Motion for Extension of Time to File Appellees’ Brief and would show this as
follows:
1. There is no specific deadline to file this motion to extend time. See Tex.
R. App. Proc. 38.6(d). The Appellants are unopposed to this Motion. Appellees’
current deadline to file their briefs is December 31, 2014.
2. Appellees request a sixty-day extension of time to file their Brief; that
would extend Appellees’ deadline up to and including March 2, 2015. This is
Appellees’ first request for an extension of time.
3. Recent developments in the underlying administrative proceedings
from which this appeal arises directly impact the current status of this appeal. On
December 23, 2014, the Texas Health and Human Services – Office of Inspector
General filed Notices of Nonsuit of the underlying administrative actions that were
pending against Appellants in HHSC Appeals, before ALJ Gilpin. Attached hereto
as Exhibits “A” and “B” are copies of the Notices of Nonsuit filed in HHSC Appeals.
4. The filing of these Notices of Nonsuit by the HHSC-Office of Inspector
General in the underlying administrative proceedings renders the issues raised by
Appellants in this appeal moot since the issues presented are no longer “live.” See
Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005). Any opinion issued
by the Court in this appeal would only be advisory in nature and improper. See
Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).
Page 2 of 8
5. Appellees anticipate these recent developments will alleviate the need
for further briefing by the parties on these issues.
6. Appellees anticipate the parties will be filing a joint motion to dismiss
in the near future. Appellees need additional time to confer with Appellants and
their counsel.
7. In the alternative, should additional briefing be needed, Appellees will
need additional time to file their Brief so that they can coordinate and submit a single
brief to the Court and because each of the undersigned counsel have litigation
schedules that make such coordination more difficult.
8. In particular, the undersigned counsel for the HHSC Appellees is
currently handling several litigation matters, including State of Texas v. Xerox
Corporation, et al., Cause No. D-1-GV-14-000581, in Travis County District Court;
and Texas Health and Human Services Commission v. Xerox State Healthcare, LLC,
Cause No. D-1-GN-14-003203, in Travis County District Court. In both matters,
counsel for the HHSC Appellees has had to – and will continue to have to – prepare
responsive pleadings, respond to discovery, and prepare for various hearings.
Because of these circumstances, as well as the closure of the Offices of the Attorney
General over the upcoming holidays, the undersigned counsel for the HHSC
Appellees respectfully requests that the Court grant Appellees’ requested extension
to file the Brief.
Page 3 of 8
9. The undersigned counsel for the ALJ Appellees is also handling several
litigation matters, including Mark Anthony Brewing, Inc. v. Texas Alcoholic
Beverage Commission, Cause No. D-1-GN-13-003570 (a constitutional challenge to
a statute and two Commission rules set for trial on March 3 and 4, 2015), and Live
Oak Brewing Company, LLC, et al. v. Texas Alcoholic Beverage Commission, et al.,
Cause No. D-1-GN-14-005151 (another constitutional challenge to a recently-
enacted statute currently in the discovery phase). During the time for preparation
of the Appellees’ Brief, the undersigned counsel for the ALJ Appellees is also
responsible for preparation and presentation of argument in Jamie Harvel and the
Austin Police Association v. Texas Department of Insurance-Division of Workers’
Compensation and Commissioner Rod Bordelon, in his official capacity, Case
No. 13-14-00095-CV, on January 5, 2015 and for assisting the Texas Low-Level
Radioactive Waste Disposal Compact Commission in preparing proposed and
amended rules for publication in the Texas Register in the very near future. Also,
during the current period for preparation of the Appellees’ Brief, the Offices of the
Attorney General are closed for several days because of holidays.
10. As stated above, Appellants do not oppose this Motion.
Page 4 of 8
III. CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, the ALJ Appellees and the
HHSC Appellees respectfully request that the Court grant Appellees an extension of
their deadline to file their Appellees’ Brief of 60 days, that is, up to and including
March 2, 2015, and that the Court grant them such other and further relief to which
they have shown themselves to be entitled.
Respectfully submitted,
GREG ABBOTT
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
JOHN SCOTT
Deputy Attorney General for Civil Litigation
Page 5 of 8
/s/ Raymond C. Winter
RAYMOND C. WINTER
State Bar No. 21791950
Chief, Civil Medicaid Fraud Division
Assistant Attorney General
Raymond.Winter@texasattorneygeneral.gov
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
P.O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 936-1709
Facsimile: (512) 499-0712-0167
Attorneys for Appellees, Texas Health & Human
Services Commission and Dr. Kyle Janek
/s/ Karen L. Watkins
KAREN L. WATKINS
State Bar No. 20927425
Assistant Attorney General
Administrative Law Division
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-4208
Facsimile: (512) 320-0167
karen.watkins@texasattorneygeneral.gov
Attorneys for the Appellees, Administrative Law
Judges Carole Hurley, Keith Grantham, and Rick
Gilpin
Page 6 of 8
CERTIFICATE OF CONFERENCE
The undersigned certifies he contacted counsel for Appellants, Jason Ray,
December 9, 2014, by telephone, on behalf of the HHSC Appellees, THHSC and
Dr. Janek, and on behalf of counsel for the ALJ Appellees, Karen L. Watkins.
Mr. Ray represented that the Appellants are not opposed to the granting of the relief
requested in this Joint Motion.
/s/Raymond C. Winter
RAYMOND C. WINTER
Assistant Attorney General
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has
been served on this the 30th day of December, 2014 on the following:
J.A. Canales VIA: File & ServeXpress and E-mail
State Bar No. 03737000
CANALES & SIMONSON, P.C.
2601 Morgan Ave.
P.O. Box 5624
Corpus Christi, Texas 78465-5624
Telephone: (361) 883-0601
Facsimile: (361) 884-7023
tonycanales@canalessimonson.com
Page 7 of 8
Jason Ray VIA: File & ServeXpress and E-mail
State Bar NO. 24000511
RIGGS, ALESHIRE & RAY, P.C.
700 Lavaca, Suite 920
Austin, Texas 7870
Telephone: (512) 457-9806
Facsimile: (512) 457-9866
jray@r-alaw.com
Attorneys for Appellants M&M Orthodontics, P.A., Harlingen
Family Dentistry, P.C. and Antoine Dental Center
/s/ Karen L. Watkins
KAREN L. WATKINS
Assistant Attorney General
Page 8 of 8
EXHIBIT A
EXHIBIT B