Case Information
*0 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 3/11/2015 7:50:21 PM CATHY S. LUSK Clerk *1 ACCEPTED 12-14-00256-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 3/11/2015 7:50:21 PM CATHY LUSK CLERK No. 12-14-00256-CV ______________________________________________________________________________
IN THE COURT OF APPEALS FOR THE TWELFTH SUPREME JUDICIAL DISTRICT
OF TEXAS AT TYLER, TEXAS ______________________________________________________________________________
TROY W. SIMMONS, D.D.S., P.C. AND TROY W. SIMMONS, D.D.S.,
Appellants, vs.
TEXAS HEALTH AND HUMAN SERVICES COMMISSION,
Appellee.
______________________________________________________________________________
Appeal from the County Court At Law No.2
of Gregg, County, Texas ______________________________________________________________________________
MOTION FOR REHEARING
TO THE HONORABLE COURT OF APPEALS:
TROY W. SIMMONS, D.D.S., P.C. and TROY W. SIMMONS, D.D.S., Appellants in
the cause, make this Motion for Rehearing of the judgment of the Court rendered on February
27, 2015, and in support of said motion would respectfully show the Court the following:
I. Point of Error: The Court of Appeals erred in affirming the trial court’s judgment
on the basis that the Appellee, Texas Health and Human Services Commission, did not waive its
sovereign immunity by its cause of action against the Appellants. *2 Argument and Authorities: The Appellants contend that the Appellee waived its
sovereign immunity when it filed claims for affirmative (monetary) relief against the Appellants
before the State Office of Administrative Hearings below. When a state entity files a cause of
action seeking monetary relief, it has consented to waive its sovereign immunity concerning any
action related to the state entity’s cause of action. See Kinnear v. Texas Commission on Human
Rights, 14 S.W.3d 299, 300 (Tex. 2000). The orders of the Administrative Law Judge that are
sought to be construed by the Appellants’ declaratory judgment action arose directly from the
cause of action filed by the Appellee. Once a state entity asserts affirmative claims for monetary
relief, it must participate in the litigation as an ordinary litigant. The Appellants’ declaratory
judgment action is “defensive” to the cause of action of the Appellee, thus the trial court had the
requisite jurisdiction to entertain the Appellants’ declaratory judgment cause of action. See, e.g.,
Reata Construction Corp. v. City of Dallas, 197 S.W.3d 371, 377 (Tex. 2006). The facts of the
case at bar are directly on point and the doctrine of stare decisis requires this Court be bound by
the recitations of the Supreme Court of Texas.
WHEREFORE, PREMISES CONSIDERED, Appellants request that the Court grant this
motion and that the judgment of the trial court be reversed and the case remanded with
instructions to order a new trial.
By:/s/ Joseph R. Willie, II, D.D.S., J.D.
4151 Southwest Freeway, Suite 490 Houston, Texas 77027 (713) 659-7330 (713) 599-1659 (FAX) SBOT# 21633500 attyjrwii@wisamlawyers.com ATTORNEY FOR APPELLANTS TROY W. SIMMONS, D.D.S., P.C. AND TROY W. SIMMONS, D.D.S.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was served via e-
service to Jennifer L. Hopgood, Assistant Attorney General, P.O. Box 12548, Capitol Station,
Austin, Texas 78711-2548, on the 11 th day of March, 2015.
/s/ Joseph R. Willie, II, D.D.S., J.D.