Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/28/2015 9:57:31 AM JEFFREY D. KYLE Clerk No. 03-15-00325-CV THIRD COURT OF APPEALS 12/28/2015 9:57:31 AM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00325-CV *1 ACCEPTED [8371741] CLERK _______________________________________________________________
IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN _______________________________________________________________
TEXAS HEALTH AND HUMAN SERVICES COMMISSION
Appellant , v.
JESSICA LUKEFAHR Appellee . ________________________________________________________________
On Appeal from the 345 th 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
State Bar No. 24065444 CHARLES E. ROY O FFICE OF THE A TTORNEY G ENERAL
First Assistant Attorney General OF T EXAS
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 *2 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 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 3