Cecile Erwin Young, in Her Official Capacity as the Executive Commissioner of the Texas Health and Human Services Commission; Molina Healthcare of Texas, Inc.; And Aetna Better Health of Texas, Inc. v. Cook Children's Health Plan, Texas Children's Health Plan, Superior Health Plan, Inc., and Wellpoint Insurance Company

ACCEPTED
15-24-00114-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
9/24/2025 3:52 PM
No. 15-24-00114-CV CHRISTOPHER A. PRINE
CLERK
FILED IN
In the Court of Appeals for the 15th COURT OF APPEALS
Fifteenth District of Texas AUSTIN, TEXAS
9/24/2025 3:52:39 PM
CHRISTOPHER A. PRINE
Clerk
Cecile E. Young, in her official capacity as Executive Commissioner of Texas
Health & Human Services Commission, Molina Healthcare of Texas, Inc., and
Aetna Better Health of Texas, Inc.,
Appellants,
v.
Cook Children’s Health Plan, Texas Children’s Health Plan, Superior HealthPlan,
Inc., and Wellpoint Insurance Company,
Appellees.

Appeal from the 455th Judicial District Court, Travis
County, Texas, Trial Court Cause No. D-1-GN-24-003839,
Hon. Laurie Eiserloh, Presiding

Appellee Superior HealthPlan, Inc.’s
Reply in Support of Motion for
Temporary Relief Under Rule 29.3

Karen D. Walker Richard B. Phillips, Jr.
Admitted Pro Hac Vice Texas Bar No. 24032833
karen.walker@hklaw.com rich.phillips@hklaw.com
Tiffany Roddenberry Holland & Knight LLP
Admitted Pro Hac Vice One Arts Plaza
tiffany.roddenberry@hklaw.com 1722 Routh Street, Suite 15500
Holland & Knight LLP Dallas, Texas 75201
315 S. Calhoun Street, Suite 600 (214) 964-9500 (telephone)
Tallahassee, Florida 32301 (214) 964-9501 (facsimile)
(850) 425-5612 (telephone)
(850) 224-8832 (facsimile)

Counsel for Appellee Superior HealthPlan, Inc.
Table of Contents
Page

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1. This Court has jurisdiction to grant temporary relief
pending appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. This Court has power under Rule 29.3 to protect
Appellees’ rights pending appeal. . . . . . . . . . . . . . . . . . . . . 4

B. The Court also has inherent authority to grant
temporary orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2. The trial court correctly concluded that Appellees have
a probable right to relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. Appellees’ claims are ripe for adjudication. . . . . . . . . . . . . . . 9

B. Appellees were not required to exhaust administrative
remedies before bringing their ultra vires claims. . . . . . . . . . . 16

C. The Commissioner mischaracterizes the relief
Appellees seek. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

D. The trial court correctly determined that the
Commissioner has acted and proposes to act ultra
vires. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

-i-
Page

(1) Section 2155.144 does not confer unlimited discretion
and requires documentation of the relevant factors
considered in making contract awards. . . . . . . . . . . . . . . 24

(2) The Commissioner was required to apply statutory
preferences and cannot argue they were discretionary. . . . . . 26

(a) The Court should reject the Commissioner’s shotgun
arguments for why the preferences do not apply, afford
her unbounded discretion, or are waived. . . . . . . . . . . 26

(b) Appellees have a probable right to relief on their claims
that the Commissioner has failed to apply or will fail to
apply statutory preferences. . . . . . . . . . . . . . . . . . 32

(3) Appellees have a probable right to relief on their claims
that HHSC wrongfully disclosed proposals. . . . . . . . . . . . 36

(4) The trial court appropriately found that Appellees have a
probable right to relief on their claims that the
Commissioner will act ultra vires in failing to certify the
proposals in accordance with section 533.0035 and in
awarding “mandatory” CHIP contracts in violation of
section 536.052(d). . . . . . . . . . . . . . . . . . . . . . . . . . 38

3. The equities weigh heavily in favor of temporary relief. . . . . . . . . . 40

Conclusion and Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

-ii-
Index of Authorities
Page
Cases

Abbott v. Doe,
691 S.W.3d 55 (Tex. App.—Austin 2024, no pet.) . . . . . . . . . . . . . . . 10

Abbott v. Doe,
No. 03-22-00126-CV, 2022 WL 837956 (Tex. App.—Austin
Mar. 21, 2022, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Associated Gen. Contractors of Texas, Inc. v. City of El Paso,
879 S.W.2d 318 (Tex. App.—El Paso 1994, no writ) . . . . . . . . . . . . . . 5, 6

City of Anson v. Harper,
216 S.W.3d 384 (Tex. App.—Eastland 2006,
no. pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

City of Austin v. Utility Assocs., Inc.,
517 S.W.3d 300 (Tex. App.—Austin 2017,
pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

City of El Paso v. Heinrich,
284 S.W.3d 366 (Tex. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Duarte v. Disanti,
292 S.W.3d 733 (Tex. App.—Dallas 2009,
no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

E&L Constr. Grp., LLC v. United States,
159 Fed. Cl. 115 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Eichelberger v. Eichelberger,
582 S.W.2d 395 (Tex. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Elcon Enters., Inc. v. Wash. Metro. Area Transit Auth.,
977 F.2d 1472 (D.C. Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Etan Indus., Inc. v. Lehmann,
359 S.W.3d 620 (Tex. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

-iii-
Page

Frank v. Liberty Ins. Corp.,
255 S.W.3d 314 (Tex. App.—Austin 2008,
pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 32

Hensley v. State Comm’n on Jud. Conduct,
692 S.W.3d 184 (Tex. 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Holt & Co. v. Wheeler County,
235 S.W. 226 (Tex. App.—Amarillo 1921,
writ dism’d w.o.j.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Houston Belt & Terminal Ry. Co. v. City of Houston,
487 S.W.3d 154 (Tex. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . passim

In re Geomet Recycling LLC,
578 S.W.3d 82 (Tex. 2019) (orig. proceeding) . . . . . . . . . . . . . . . . . . . 7

In re State,
711 S.W.3d 641 (Tex. 2024) (orig. proceeding) . . . . . . . . . . . . . . . . . 41

In re Stetson Renewables Holdings, LLC,
658 S.W.3d 292 (Tex. 2022) (orig. proceeding) . . . . . . . . . . . . . . . 20, 21

In re Texas Educ. Agency,
619 S.W.3d 679 (Tex. 2021) (orig. proceeding) . . . . . . . . . . . . . . . 7, 8, 23

Marble Falls Indep. Sch. Dist. v. Scott,
275 S.W.3d 558 (Tex. App.—Austin 2008,
pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Matzen v. McLane,
659 S.W.3d 381 (Tex. 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

McGarry v. Houston Firefighters’ Relief & Ret. Fund,
680 S.W.3d 14 (Tex. App.—Houston [1st Dist.] 2023,
pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

-iv-
Page

Morath v. Kingsville Indep. Sch. Dist.,
710 S.W.3d 918 (Tex. App.—15th Dist. 2025,
no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Omniplex World Servs. Corp. v. United States,
105 Fed. Cl. 706 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Phillips v. McNeill,
635 S.W.3d 620 (Tex. 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Riner v. City of Hunters Creek,
403 S.W.3d 919 (Tex. App.—Houston [14th Dist.] 2013,
no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

S.O. v. Univ. of Tex.,
No. 03-16-00726-CV, 2017 WL 2628072 (Tex. App.—Austin
June 15, 2017, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. City of San Marcos,
714 S.W.3d 224 (Tex. App.—15th Dist. 2025,
pet. filed) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 41

Sw. Elec. Power Co. v. Lynch,
595 S.W.3d 678 (Tex. 2020) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 15, 16

Sw. Life Ins. Co. v. Montemayor,
24 S.W.3d 581 (Tex. App.—Austin 2000,
pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Tex. Educ. Agency v. A+ Tex. Teachers,
No. 03-23-00318-CV, 2023 WL 4981604 (Tex. App.—Austin
Aug. 4, 2023, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Tex. Health & Human Servs. Comm’n v. Sacred Oak Med. Ctr. LLC,
No. 03-21-00136-CV, 2021 WL 2371356 (Tex. App.—Austin
June 9, 2021, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 43, 44

-v-
Page

Tex. State Bd. of Exam’rs in Optometry v. Lane,
349 S.W.2d 763 (Tex. App.—Fort Worth 1961,
no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Texas Educ. Agency v. Houston Indep. Sch. Dist.,
609 S.W.3d 569 (Tex. App.—Austin 2020,
no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Texas Highway Comm’n v. El Paso Bldg. & Constr. Trades Council,
234 S.W.2d 857 (Tex. 1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Transp. Co. of Tex. v. Robertson Transports, Inc.,
261 S.W.2d 549 (Tex. 1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

VAS Realty, LLC v. United States,
26 F.4th 945 (Fed. Cir. 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Wilson v. Cmty. Health Choice Texas, Inc.,
607 S.W.3d 843 (Tex. App.—Austin 2020,
pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Statutes and Regulations

1 T.A.C. § 391.101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

1 T.A.C. § 391.209(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Tex. Gov’t Code § 311.016(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Tex. Gov’t Code § 311.026 . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Tex. Gov’t Code § 533.002(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 32

Tex. Gov’t Code § 533.003 . . . . . . . . . . . . . . . . . . . . . . . . . passim

Tex. Gov’t Code § 533.003(a) . . . . . . . . . . . . . . . . . . . . . . . . passim

Tex. Gov’t Code § 533.004 . . . . . . . . . . . . . . . . . . . . . . . . . passim

Tex. Gov't Code § 533.0035(a) . . . . . . . . . . . . . . . . . . . . . . . . . 38

-vi-
Page

Tex. Gov’t Code § 536.052(d). . . . . . . . . . . . . . . . . . . . . . . . passim

Tex. Gov't Code § 2155.144 . . . . . . . . . . . . . . . . . . . . . 24, 25, 28, 29

Tex. Gov’t Code § 2155.144(c) . . . . . . . . . . . . . . . . . . . . . . . . . 24

Tex. Health & Safety Code § 62.155(c)(1) . . . . . . . . . . . . . . 31, 39

Texas Health & Safety Code § 62.155(a) . . . . . . . . . . . . . . . . . 39

Texas Health & Safety Code § 62.155(c) . . . . . . . . . . . . . . . . . . 31

Rule

Tex. R. App. P. 29.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Other Authorities

Merriam-Webster Online Dictionary . . . . . . . . . . . . . . . . . . . . . . 30, 31

-vii-
Introduction
The trial court (after hearing live testimony for three and a half days) con-

cluded that Appellees have brought viable claims that the Executive Commissioner

of the Texas Health and Human Services Commission has acted and will act ultra

vires in connection with the procurement at issue in this appeal. The trial court also

found that Appellees have a likelihood of success on the merits of those ultra vires

claims and enjoined the Commissioner from taking action to execute the proposed

contracts. This Court should issue temporary orders to keep that injunction in place

pending until this appeal is resolved.

The Commissioner’s and Molina Healthcare of Texas, Inc.’s1 responses to

Appellees’ motions for temporary relief essentially argue that the Commissioner

should have unreviewable discretion to award these contracts as she sees fit. But the

Legislature has established multiple requirements that the Commissioner must fol-

low in awarding these contracts. Appellees’ suits are the proper way to invoke the

courts’ jurisdiction to ensure that the Commissioner follows the law. And temporary

relief from this Court is necessary to protect this Court’s jurisdiction and Appellees’

1
Molina filed a response despite its representation that it did not intend to do so. (Superior
Mot. at 35.) And two days after responses to the motions were due, putative appellant
Aetna Better Health of Texas, Inc. purported to adopt by reference the Commissioner’s
and Molina’s responses.

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 1
rights to effective judicial review. The Court should reject the Commissioner’s and

Molina’s efforts to nullify those rights.

Molina (but not the Commissioner) questions this Court’s authority to grant

temporary relief at all. This argument hinges on a misapprehension of Appellees’

rights and this Court’s power. Because Appellees have viable ultra vires claims, they

have rights that can (and should) be protected by temporary relief under Rule 29.3.

Molina’s arguments are based on its flawed assertion that the Commissioner has un-

fettered discretion in the procurement process. Also, this Court has inherent power

to enjoin execution of the proposed contracts because any other result would raise

significant constitutional issues.

Despite ample evidence of imminent harm to Appellees, the Commissioner

and Molina argue that Appellees’ claims are not yet ripe. They also both argue that

Appellees were required to exhaust their administrative remedies before bringing ul-

tra vires claims. These arguments misconstrue the nature and purpose of Appellees’

ultra vires claims. Texas courts have repeatedly recognized that ultra vires claims are

not subject to the exhaustion requirement. Where the official’s actions are ultra

vires, there is no purpose in requiring the plaintiff to wait until the ultra vires process

ends before seeking judicial relief. Thus, Appellees’ claims are ripe and properly be-

fore the Court.

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 2
The Commissioner next argues that Appellees are not likely to succeed on the

merits of their ultra vires claims by asserting that the statutory mandates are merely

guidelines and that she has essentially unreviewable discretion in deciding how to

implement them. (HHSC Resp. at 20–21.) But that argument cannot survive an ex-

amination of the statutes at issue and the trial court’s findings. The trial court

concluded that Appellees established that the Commissioner has acted and will act

ultra vires in at least seven different ways. (Superior Mot. at 13–19.) The Commis-

sioner’s arguments in her response do not show that the trial court abused its

discretion in concluding that Appellees are likely to succeed on the merits of these

claims.

Finally, the Commissioner argues that the equities weigh in favor of allowing

her to continue on a course of action the trial court found to be likely ultra vires.

(HHSC Resp. at 41.) The Commissioner argues that the State has an interest in en-

forcing its laws. True enough. But that interest weighs against the Commissioner

here because the purpose of ultra vires suits is to rein in officials who are acting out-

side their authority. Because Appellees are likely to succeed on their ultra vires

claims, the interest of enforcing the law weighs in favor of a temporary order from

this Court to prevent ultra vires actions. The Commissioner does not (and cannot)

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 3
dispute the evidence of the irreparable harm that Superior faces from the Commis-

sioner’s ultra vires acts. The Commissioner also blithely brushes aside the impact on

the more than 1.5 million Texans who will be forced to change health plans because

of the Commissioner’s conduct. This Court should grant temporary relief to enjoin

the Commissioner’s ultra vires actions, to protect Appellees and the public from ir-

reparable harm, and to preserve the status quo pending the appeal’s resolution.

Argument
1. This Court has jurisdiction to grant temporary relief pending appeal.

Molina (but not the Commissioner) asserts that this Court lacks jurisdiction

to grant the temporary relief requested by Appellees. (Molina Resp. at 12.) But as

explained in Superior’s motion, this Court has the power to grant the requested relief

under either Rule 29.3 or the Court’s inherent authority. (Superior Mot. at 23–25.)

Molina’s attempts to avoid these sources of jurisdiction are unavailing.

A. This Court has power under Rule 29.3 to protect Appellees’ rights
pending appeal.

Molina argues that Rule 29.3 cannot apply by urging that Appellees have no

rights that need to be preserved because (according to Molina) Appellees have no

right to challenge the Commissioner’s administration of the procurement. (Molina

Resp. at 16–21.) This is not an argument that the Commissioner made in the trial

court or in this Court, and for good reason. The only Texas cases Molina cites for

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 4
this argument are from 1950 and from 1921, both addressing materially different stat-

utory schemes. (Id. at 17 & n. 18.) In Texas Highway Commission v. El Paso Building

& Construction Trades Council, the statute at issue required the Highway Commis-

sion to ascertain the prevailing per diem wage rate for the work to be performed

under any contract and to include that rate in the contract. 234 S.W.2d 857, 859

(Tex. 1950). But nothing in the statute provided any standards by which the prevail-

ing rate should be determined and instead defined the term to mean the rate

determined by the public body awarding the contract. Id. And that determination was

expressly made final by the statute. Id. Thus, it is unsurprising that the Supreme

Court held that the Highway Commission had absolute discretion in determining the

prevailing rate. Id.

A more recent case about setting prevailing wage rates makes clear that the

decision turned on the absolute discretion granted by the statute. The statute was

amended in 1993 to prescribe two methods by which the prevailing wage rate was

required to be determined. See Associated Gen. Contractors of Texas, Inc. v. City of El

Paso, 879 S.W.2d 318, 319 (Tex. App.—El Paso 1994, no writ). When Associated

General Contractors of Texas sued the City of El Paso for failing to comply with the

amended statute, the city argued that the courts had no jurisdiction over the claim,

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 5
relying on Texas Highway Commission. 879 S.W.2d at 319. The appellate court re-

jected that argument because of the amendment to the statute. Id. at 320. The court

held that courts had jurisdiction to determine whether the city followed the amended

statute’s requirements. Id.

In a footnote, Molina also cites a case from 1921, in which the applicable stat-

ute gave the county commissioners court the absolute power to reject any bid. Holt

& Co. v. Wheeler County, 235 S.W. 226, 228 (Tex. App.—Amarillo 1921, writ dism’d

w.o.j.). Again, because the statute conferred absolute discretion, the court lacked ju-

risdiction over claims about the bidding process. Id.

Here, in contrast, as discussed in Superior’s motion (and in Part D of this re-

ply), the governing statutes do not give the Commissioner absolute discretion.

Instead, the applicable statutes establish standards and requirements that the Com-

missioner must follow in determining and awarding the contracts at issue. Molina’s

cases about absolute discretion thus do not apply here.

Molina also makes no effort to address recent Texas Supreme Court authority

about courts’ power to address ultra vires actions by state officials. In Houston Belt

& Terminal Railway Co. v. City of Houston, the Supreme Court clarified that an ultra

vires suit can be maintained when the plaintiff alleges that an official exercised “lim-

ited discretion without reference to or in conflict with the constraints of the law

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 6
authorizing the official to act.” 487 S.W.3d 154, 163 (Tex. 2016). Ultra vires suits are

absolutely barred only when the official is exercising “absolute discretion—free de-

cision-making without any constraints.” Id. Because the Commissioner does not

have absolute discretion, Appellees have viable ultra vires claims and therefore have

rights that should be protected by temporary orders under Rule 29.3.

B. The Court also has inherent authority to grant temporary orders.

Molina’s arguments about this Court’s inherent authority fare no better. (Mo-

lina Resp. at 21.) Texas courts have recognized that appellate courts have the

inherent authority “to preserve a party’s right to judicial review of acts that it alleges

are unlawful and will cause it irreparable harm.” Tex. Health & Human Servs.

Comm’n v. Sacred Oak Med. Ctr. LLC, No. 03-21-00136-CV, 2021 WL 2371356, at

*5 (Tex. App.—Austin June 9, 2021, no pet.). Molina tries to avoid this case as

simply applying Rule 29.3 (Molina Resp. at 22 n.27), but the court expressly exer-

cised its inherent authority. Id. The point is that even without Rule 29.3, an appellate

court has the inherent power to grant temporary relief to preserve the right to appel-

late review and prevent irreparable harm. Id.

That power is necessary because if a party has no recourse to preserve its

rights pending appeal, that would raise “serious constitutional questions.” In re Ge-

omet Recycling LLC, 578 S.W.3d 82, 89 (Tex. 2019) (orig. proceeding); see also In re

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 7
Texas Educ. Agency, 619 S.W.3d 679, 690 n.59 (Tex. 2021) (orig. proceeding) (iden-

tifying constitutional issues that would arise if appellate courts did not have inherent

authority to issue temporary orders to prevent irreparable harm). The Austin Court

of Appeals has also recognized that “where the appellee alleges irreparable harm

from ultra vires action that it seeks to preclude from becoming final, to effectively

perform our judicial function and to preserve the separation of powers, we must ex-

ercise our inherent authority and use Rule 29.3” to issue temporary orders to prevent

that irreparable harm. Texas Educ. Agency v. Houston Indep. Sch. Dist., 609 S.W.3d

569, 578 (Tex. App.—Austin 2020, no pet.). The court noted that this inherent

power comes not from any statute or rule but from the separation-of-powers doctrine

and the court’s need to effectively exercise its functions and to protect its “dignity,

independence, and integrity.” Id. at 577 (quoting Eichelberger v. Eichelberger, 582

S.W.2d 395, 398 (Tex. 1979)). The Court should reject Molina’s invitation to create

the very constitutional problems the Supreme Court identified and avoided in In re

Texas Education Agency. This Court has the inherent authority to issue temporary

orders to ensure effective judicial review of the Commissioner’s ultra vires acts.

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 8
2. The trial court correctly concluded that Appellees have a probable right
to relief.

A. Appellees’ claims are ripe for adjudication.

Both the Commissioner and Molina argue that the Appellees’ claims are not

ripe because their administrative appeals remain pending before the Commissioner.

(HHSC Resp. at 12; Molina Resp. at 24.) The ripeness arguments hinge on the con-

tention that there can be no cognizable injury to Appellees until after the

Commissioner decides their pending appeals from the denial of their bid protests.

(HHSC Resp. at 12; Molina Resp. at 24.) But the Commissioner and Molina miscon-

strue the law and the testimony at the temporary-injunction hearing. Appellees face

an imminent injury that is sufficiently ripe for adjudication.

A dispute is ripe if “the facts are sufficiently developed ‘so that an injury has

occurred or is likely to occur, rather than being contingent or remote.’” Sw. Elec.

Power Co. v. Lynch, 595 S.W.3d 678, 683 (Tex. 2020) (internal citations omitted). “A

claimant is not required to show that an injury has already occurred, provided the

injury is imminent or sufficiently likely.” S.O. v. Univ. of Tex., No. 03-16-00726-CV,

2017 WL 2628072, at *2 (Tex. App.—Austin June 15, 2017, no pet.). A declaratory-

judgment claim is ripe when there is a live controversy, harm will occur if it is not

resolved, and the declaration sought will “actually resolve the controversy.” Lynch,

595 S.W.3d at 685; see also Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 624 (Tex.

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 9
2011) (“[The UDJA] is intended as a means of determining the parties’ rights when

a controversy has arisen but before a wrong has been committed … .”). And when a

party asserts that a governmental actor is acting ultra vires, the party need not wait

for a final agency determination before challenging the ultra vires action and seeking

declaratory relief. See Abbott v. Doe, 691 S.W.3d 55, 76 (Tex. App.—Austin 2024, no

pet.).

To argue that Appellees’ claims are not ripe, the Commissioner and Molina

selectively quote from the hearing transcript about the administrative appeals’ sta-

tus. (HHSC Resp. at 12–13; Molina Resp. at 25–26.) The Commissioner contends

that “whether the Commissioner will proceed with the results from HHSC’s pro-

curement scoring or alter them in some way is far from certain.” (HHSC Resp. at

13.) This statement cannot be squared with the Commissioner’s testimony. For ex-

ample, she was asked:

Q: But you’ve decided that you’re not going to redo something or fix
something; you’re just going to sign the contracts?

A: On these—on this procurement, I felt like we did—what we did was
correct, so no.

(5RR:180.) In the context of earlier questions, the Commissioner’s statement “so

no” refers to whether she intends to order a new procurement. An earlier question

asked about her option to “just start over.” (Id.) And this answer makes clear that

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 10
the Commissioner believes that there is no reason to order a new procurement. Other

testimony makes clear that the Commissioner intends to proceed with awarding the

contracts as stated in the notice of intent to award. She testified that she believes that

the procurement properly gave preference to historical quality ratings. (6RR:135.)

The Commissioner also testified that she tried to find a way to give awards to the

children’s health plans, but she “couldn’t come up with a principled way to do it.”

(6RR:141.) Finally, she testified that at the time of the hearing, HHSC’s position was

that it was “not going to do anything different” other than move forward with the

intended contract awards. (6RR:168.) This testimony shows that any statements

about needing to resolve the administrative appeals are hollow references to tech-

nical procedures. The Commissioner’s arguments in her response against the merits

of Appellees’ arguments also reveal her views about the administrative appeals’ mer-

its. (HHSC Resp. at 20–41.)

Molina hypothesizes that it is possible that the Commissioner might find in Ap-

pellees’ favor in the administrative appeals and could order a new procurement.

(Molina Resp. at 26–27.) But based on the evidence at the hearing and the Commis-

sioner’s arguments in this Court, there is no reasonable doubt about the

administrative appeals’ outcome: the Commissioner fully intends to move forward

with awarding the contracts identified in the notice of intent to award.

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 11
The Commissioner and Molina also disregard evidence of harm to Appellees.

The Commissioner testified that she “could execute the contracts immediately after

denying the appeals.” (6RR:147 (emphasis added).) That is, absent injunctive relief

now, there would likely be no way for Appellees to stop the contracts’ execution after

the Commissioner denies the administrative appeals. The trial court also heard un-

controverted evidence of the imminent harm that Superior is already suffering and

will suffer from the contracts’ execution. Superior’s then CEO testified that “the

harm would be immediate” following the contracts’ execution. (7RR:113.) He de-

scribed that once the contracts are executed, Superior will start losing employees

which will affect Superior’s ability to perform under its current contract and result

in reputational damage. (7RR:115.) He also explained that as soon as the contracts

are signed, Superior would suffer damage to its investment in its value-based con-

tracted network. (7RR:116.) He also testified that if the contracts are signed, it would

impact Superior’s ability to negotiate with providers in its network, as those provid-

ers would begin focusing on other health plans. (Id.) Similarly, plan participants

would start looking at other plans. (7RR:117.) He noted that even though the con-

tracts have not been signed, Superior is already “hearing reports of providers

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 12
informing members that Superior has lost and is exiting service areas and encourag-

ing them to switch plans.” (Id.) He testified that this activity would intensify if the

contracts are signed. (Id.)

In sum, the evidence presented to the trial court establishes a live controversy

about the legality of the Commissioner’s actions. And the harm from that conduct is

imminent. Thus, Appellees’ claims are ripe for determination.

The cases on which the Commissioner and Molina rely for their ripeness ar-

guments are distinguishable. The Commissioner cites Riner v. City of Hunters Creek,

403 S.W.3d 919, 923–24 (Tex. App.—Houston [14th Dist.] 2013, no pet.), to support

her argument that claims are not ripe while the administrative appeals are pending.

But the facts in Riner are significantly different from those here. In Riner, the plain-

tiffs complained that a city planning and zoning commission misconstrued an

ordinance concerning lot size and that this was the primary reason the commission

disapproved their plat. Id. at 921. But the commission’s order identified 14 reasons

for disapproving the plat. Id. The court of appeals found that the plaintiffs’ claims

were not ripe because they could not show that the alleged mistaken interpretation

of the lot-size ordinance had caused them injury or would soon do so. Id. at 924. The

court noted that the alleged injury was hypothetical because it was contingent on (a)

the plaintiffs’ ability and willingness to eliminate their plat’s other deficiencies, (b)

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 13
the commission’s disapproval of a revised plat, and (c) the board of adjustment’s

refusal to reverse the commission’s continued disapproval or grant variances. Id.

The court emphasized that although the commission had given 14 reasons for disap-

proving the plat, the plaintiffs’ declaratory-judgment claim focused on only one (the

lot-size ordinance) and merely assumed that the other bases would be resolved. Id.

Thus, the court could not find that the lot-size ordinance “has caused [plaintiffs] a

concrete injury, or will soon do so.” Id.

Here, in contrast, the Commissioner’s ultra vires conduct is the cause of the

harm Appellees face. The administrative appeals’ pendency does not affect this anal-

ysis. The Commissioner continues to take the position that she and HHSC complied

with all applicable laws and unless a court tells her otherwise, the Commissioner

stands poised to deny the appeals and execute the contracts immediately thereafter.

Thus, the alleged harm in Riner was materially more contingent and attenuated than

the harm at issue here.

The Commissioner also cites Marble Falls Independent School District v. Scott,

275 S.W.3d 558, 567 (Tex. App.—Austin 2008, pet. denied). But that case addresses

exhaustion of administrative remedies, not ripeness. And as discussed in Part 2.B,

Appellees were not required to exhaust administrative remedies before seeking a

declaration that the Commissioner is acting ultra vires. Marble Falls is also inapposite

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 14
because the dispute was subject to the Administrative Procedure Act and statutory

prerequisites to filing suit, neither which apply here. See id. at 567–68.

Molina also cites City of Anson v. Harper, 216 S.W.3d 384, 395 (Tex. App.—

Eastland 2006, no. pet.), for the proposition that injury that depends on uncertain

administrative action is not ripe. (Molina Resp. at 27.) That case addressed a chal-

lenge to a proposed landfill, where the landfill permit applications were still pending

and thus the landfill’s construction and operation was a mere possibility. 216 S.W.3d

at 388. The court cited two Fifth Circuit cases finding that controversies over pro-

posed landfills were not ripe where the landfills’ regulatory approvals were still

pending. Id. at 390. But the court found that because the city had already done some

dirt work relating to the proposed landfill that had damaged plaintiffs, the trial court

did have potential jurisdiction to resolve claims based on events which had already

taken place. Id. Here, Appellees have alleged that the Commissioner has already en-

gaged in ultra vires action (which has caused injury to Superior) and will continue to

engage in ultra vires action unless stopped by the court (which will result in additional

injury to Superior). Thus, this case does not support Molina’s ripeness argument.

The facts here are more analogous to the facts in Lynch, which involved a dis-

pute about the rights granted under a blanket easement. 595 S.W.3d at 684. The

defendant argued that the plaintiffs’ claim was not ripe because their concerns

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 15
stemmed from the easement’s possible future. Id. The Supreme Court acknowl-

edged this but noted that the claims were “inextricably tethered to a present

disagreement” about the easement’s scope. Id. The Court also noted that declara-

tory-judgment actions “are often brought with an eye to future harm.” Id. at 685.

The Court held that the “present disagreement” (though it was narrower than the

larger dispute) was sufficient to create a ripe dispute about the easement’s scope. Id.

Similarly, there is a “present disagreement” here about the Commissioner’s inter-

pretation of the statutes governing the STAR & CHIP and STAR Kids

procurements, and Appellees have shown that they are likely to suffer harm if that

controversy is not resolved. That harm is neither contingent nor remote. The dispute

is therefore ripe for adjudication.

B. Appellees were not required to exhaust administrative remedies be-
fore bringing their ultra vires claims.

Relatedly, the Commissioner and Molina also argue that this Court lacks ju-

risdiction because Appellees should have exhausted their administrative remedies

before filing their declaratory-judgment case. (HHSC Resp. at 15–16; Molina Resp.

at 27–31.) But administrative exhaustion is not required when the plaintiff asserts a

valid ultra vires claim. See, e.g., McGarry v. Houston Firefighters’ Relief & Ret. Fund,

680 S.W.3d 14, 34–35 (Tex. App.—Houston [1st Dist.] 2023, pet. denied). Both the

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 16
Commissioner and Molina concede that Texas courts have recognized that at least

some ultra vires claims are exempt from the administrative-exhaustion requirement.

(HHSC Resp. at 15–16; Molina Resp. at 30–31.) But they argue that the ultra vires

exception applies only to claims where the administrative body wholly lacks author-

ity to decide the issue at all. (Id.) That argument is premised on cases that predate

the Texas Supreme Court’s clarification about what constitutes an ultra vires claim.

As discussed in Part 1.A., in 2016, the Texas Supreme Court decided Houston

Belt & Terminal Railway Co. and clarified what constitutes an ultra vires claim. 487

S.W.3d at 163. In that case, the City of Houston argued that ultra vires claims are

cognizable only when the official had no discretion whatsoever. Id. at 161. That is,

according to the City, if the official had any discretion, no ultra vires claim could ever

be brought. Id. The Supreme Court rejected that argument. Id. at 163. The Court

instead held that ultra vires claims are cognizable to address “an officer’s exercise of

judgment or limited discretion without reference to or in conflict with the constraints

of the law authorizing the official to act.” Id. The Court reasoned that the purpose

of ultra vires claims is not to “attempt to exert control over the state” but to “at-

tempt to reassert the control of the state.” Id. at 164. Thus, the issue is not whether

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 17
the official has discretion or does not have discretion, but whether the plaintiff ade-

quately alleges that the official acted outside whatever authority the legislature has

granted. Id.

The Commissioner cites Hensley v. State Commission on Judicial Conduct, 692

S.W.3d 184, 194 (Tex. 2024), for the proposition that “when an available adminis-

trative remedy ‘may moot the claim … the claim is barred.’” (HHSC Resp. at 15.)

But in that case the Supreme Court concluded that the plaintiff did not have to ex-

haust her administrative remedies because “exhaustion would be a pointless waste

of time and resources.” 692 S.W.3d at 194. That holding is fully consistent with the

ultra vires exception’s application. When the plaintiff has a viable claim that the of-

ficial is acting outside the authority granted by the legislature, requiring the plaintiff

to complete the administrative process before making those claims serves no pur-

pose.

The Texas cases that Molina cites to support its exhaustion argument all pre-

date Houston Belt & Terminal. (Molina Resp. at 30–31.) Nor does Molina identify any

reason that the ultra vires exception to the exhaustion requirement should be limited

to claims that the official lacked any authority whatsoever where the claim is that the

official acted beyond the scope of, or contrary to, the applicable legislative authority.

As discussed above, the Supreme Court has explained that a plaintiff states a claim

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 18
for ultra vires action if the plaintiff alleges that the official is acting outside whatever

discretion the legislature has granted. Houston Belt & Terminal Ry. Co., 487 S.W.3d

at 163. The ultra vires claim’s purpose is to reassert the state’s control over a way-

ward official. Id. at 164. And the ultra vires exception to the exhaustion requirement

recognizes that there is no reason to make a plaintiff wait through an administrative

process to assert that the official conducting that process is acting without authority.

That purpose is fully satisfied here. There is no reason to force Appellees to com-

plete the administrative process before bringing their claims that the Commissioner

has acted outside her authority.

C. The Commissioner mischaracterizes the relief Appellees seek.

The Commissioner next argues that Appellees are not entitled to ask a court

“to compel the Commissioner to redo the procurement process.” (HHSC Resp. at

16.) But this argument misstates the relief Appellees seek. The Commissioner does

not cite to any portion of the record where Appellees have sought an order compel-

ling the Commissioner to redo the procurement. (Id.) That is because there is no

such pleading. Instead, Superior seeks (1) declarations that the Commissioner is re-

quired to comply with the statutes governing the procurement and that the

Commissioner has failed and will continue to fail to comply with such statutes if the

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 19
proposed contract awards are finalized and (2) an injunction stopping the Commis-

sioner from proceeding with the proposed contract awards. (CR:3550–56.) What

happens after that is up to the Commissioner.

The Austin Court of Appeals has also previously recognized that a claim for

an injunction to stop the Commissioner from executing a contract that violates the

procurement statutes is a valid ultra vires claim. Wilson v. Community Health Choice

Texas, Inc., 607 S.W.3d 843, 855 (Tex. App.—Austin 2020, pet. denied). Thus, Su-

perior’s similar claim is also cognizable. That is, by seeking to stop the

Commissioner from violating the law, the claim seeks prospective relief. And injunc-

tive relief to stop improper conduct is a recognized and proper remedy for an ultra

vires claim.

Further, the cases the Commissioner cites for this strawman argument are

readily distinguishable. The Commissioner first cites In re Stetson Renewables Hold-

ings, LLC, 658 S.W.3d 292, 297 (Tex. 2022) (orig. proceeding) for the proposition

that absent a legislatively crafted remedy, there is no remedy for the Commissioner’s

ultra vires conduct. (HHSC Resp. at 16–17.) But Stetson does not support that argu-

ment. A taxpayer sought mandamus relief ordering the Comptroller to process its

application to participate in a tax incentive program. 658 S.W.3d at 293. The Su-

preme Court held that because the legislature had expressly provided that the

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 20
program ended on a date certain, a court could not order the Comptroller to process

an application after that date. Id. at 299. Nothing in the opinion addresses the pro-

spective injunctive relief that Appellees seek here.

The Commissioner next cites Morath v. Kingsville Independent School District,

710 S.W.3d 918, 925 (Tex. App.—15th Dist. 2025, no pet.), for the proposition that

“the lack of a legislatively mandated judicial remedy is fatal to [Appellees’] claims.”

(HHSC Resp. at 17.) Again, however, the case does not support that proposition.

The issue was whether a school district was entitled to an order compelling the Com-

missioner of Education to cancel school district ratings rather than issuing them

retroactively because they were not timely under the statute. 710 S.W.3d at 921–22.

This Court held that issuing the ratings retroactively was not an ultra vires act. Id. at

927. This case does not address what the remedy would have been if the commis-

sioner was acting ultra vires.

Finally, the Commissioner cites City of Austin v. Utility Associcates, Inc., 517

S.W.3d 300, 312–13 (Tex. App.—Austin 2017, pet. denied), to argue that Appellees

seek retrospective relief rather than prospective relief. (HHSC Resp. at 18.) But that

case establishes that Appellees are seeking prospective relief. In Utility Associates,

the plaintiff sought injunctive relief to stop enforcement of an existing contract the

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 21
city had previously executed. 517 S.W.3d at 312–13. The court held that this was im-

proper retrospective relief. Id. Of course, here Appellees seek injunctive relief to stop

the Commissioner from awarding and signing the contracts. That is prospective re-

lief.

More fundamentally, the Commissioner’s argument cannot be squared with

the many cases recognizing that injunctive relief is proper to stop ultra vires actions.

See, e.g., Matzen v. McLane, 659 S.W.3d 381, 388 (Tex. 2021) (“Texas law recognizes

‘ultra vires’ claims seeking prospective injunctive relief against individual govern-

ment officials in their official capacities.”); Phillips v. McNeill, 635 S.W.3d 620, 627–

28 (Tex. 2021) (noting that the doctrine of ultra vires suits against government offi-

cials traces its roots “to courts’ issuance of writs of habeas corpus, mandamus,

and injunction against government officials to check acts in excess of lawful author-

ity”); Houston Belt & Terminal Ry. Co., 487 S.W.3d at 160 n.4 (noting that a

successful plaintiff on an ultra vires claim is entitled to injunctive relief); City of El

Paso v. Heinrich, 284 S.W.3d 366, 373, 376 (Tex. 2009) (same). In short, when the

relief Appellees seek is correctly understood, there can be no question that the relief

is judicially cognizable.

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 22
D. The trial court correctly determined that the Commissioner has
acted and proposes to act ultra vires.

The Commissioner also seeks to avoid relief maintaining the status quo pend-

ing her appeal by asserting that all Appellees’ claims lack merit. (HHSC Resp. at 20–

41.) This Court need not and should not resolve the merits at this early stage given

this case’s procedural posture. See, e.g., In re Tex. Educ. Agency, 619 S.W.3d 679 (Tex.

2021) (orig. proceeding) (making no comment on the merits of school district’s

claims in affirming temporary orders entered under Rule 29.3); Abbott v. Doe, No.

03-22-00126-CV, 2022 WL 837956, at *2 (Tex. App.—Austin Mar. 21, 2022, no

pet.) (“Therefore, without regard to the merits of the issues on appeal, which are

not yet briefed to this Court, we exercise our discretion under Rule 29.3 to reinstate

the injunction as issued by the district court on March 11, 2022.”); Tex. Educ. Agency

v. A+ Tex. Teachers, No. 03-23-00318-CV, 2023 WL 4981604, at *3 (Tex. App.—

Austin Aug. 4, 2023, no pet.) (issuing temporary order reinstating part of temporary

injunction “without commenting on the merits of any party’s claims or defenses”).

In any event, Appellees have demonstrated a probable right to relief on the merits

warranting Rule 29.3 relief and maintaining the trial court’s temporary injunction.

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 23
(1) Section 2155.144 does not confer unlimited discretion and re-
quires documentation of the relevant factors considered in
making contract awards.

In her opposition, the Commissioner suggests for the first time that her con-

duct was entirely proper because Texas Government Code section 2155.144 grants

her broad and purportedly limitless discretion to award managed care contracts

based on her determination of “best value.” (HHSC Resp. at 22–25.)2

To begin with, although the Commissioner is generally required to use pro-

curement methods that provide best value under section 2155.144, she also remains

bound to comply with specific statutory requirements when awarding managed care

contracts, including those set forth in sections 533.003, 533.004, and 536.052(d). See

Wilson, 607 S.W.3d at 846–47, 854. Otherwise, such statutory requirements would

be meaningless. The Commissioner’s arguments also ignore that section 2155.144

mandates documentation of any factors that were considered relevant. See Tex.

Gov’t Code § 2155.144(c) (“The agency shall document that it considered all

relevant factors under Subsection (d) in making the acquisition.” (emphasis added)).

The term “shall” is mandatory and leaves no room for discretion. See Tex. Gov’t

2
As noted in Superior’s motion (Superior Mot. at 2 n.3), portions of the Texas Gov-
ernment Code were repealed and recodified effective April 1, 2025, affecting the
numbering of several statutes at issue. For consistency of reference, Superior will continue
to refer to the statutes as they existed at the time of the trial court’s order on appeal.

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 24
Code § 311.016(2) (“ʻShallʼ imposes a duty”); see also, e.g., Frank v. Liberty Ins.

Corp., 255 S.W.3d 314, 324 (Tex. App.—Austin 2008, pet. denied) (noting that the

word “shall” in a statute is generally construed as creating a “mandatory duty.”).

For instance, the Commissioner cannot and does not dispute that HHSC

deemed past performance a relevant factor in this procurement. (5RR:225–26.) Once

HHSC deemed it a relevant factor under section 2155.144(d), consideration of that

factor was required to be specifically documented under subsection (c) but was not.

(5RR:107–08, 168–69, 225–26.) Despite the stray comment the Commissioner cites

as somehow establishing HHSC documented consideration of past performance,

witness James Ramirez agreed that one would not be able to find where HHSC doc-

umented past performance outside of generically referring to the entire procurement

file. (5RR:227–28 (admitting past performance was not “an express and independent

consideration”); see also 5RR:110–11 (Kay Molina conceded that “the words ‘past

performance’ are [not] going to show up anywhere” in any evaluations of respond-

ents’ proposals.).)

Despite the Commissioner’s arguments to the contrary, section 2155.144 im-

posed a nondiscretionary duty upon the Commissioner to document all relevant

factors considered under the statute in making the contract awards, including past

performance, which she did not do. This is perfectly suited to an ultra vires claim.

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 25
(2) The Commissioner was required to apply statutory preferences
and cannot argue they were discretionary.

The Commissioner next argues that there is no specified manner by which she

must apply the statutory preferences required in managed care procurements, see

Tex. Gov’t Code §§ 533.003, 533.004, and 536.052(d)), and that Appellees merely

argue the Commissioner and HHSC did not exercise discretion in the way Appellees

wanted. (See HHSC Resp. at 25–35.) The Commissioner is wrong for several rea-

sons.

(a) The Court should reject the Commissioner’s shotgun ar-
guments for why the preferences do not apply, afford her
unbounded discretion, or are waived.

The Commissioner offers a series of disparate arguments contending that the

statutory preferences at issue are inapplicable, confer discretion, or have been

waived. (HHSC Resp. at 25–28.) These arguments cannot withstand scrutiny.

The Commissioner first questions whether Appellees have standing to chal-

lenge her failure to apply the statutory preferences, arguing that Appellees were

required to show that the failure to apply the statutory preferences caused them to

be passed over in the procurement process. (HHSC Resp. at 25–26.) The single case

the Commissioner cites is a federal bid protest case. See Elcon Enters., Inc. v. Wash.

Metro. Area Transit Auth., 977 F.2d 1472, 1483–84 (D.C. Cir. 1992). But this is not a

bid protest; it is an action asserting claims of ultra vires action. In any case, the same

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 26
federal case law confirms that “prejudice” necessary to sustain a protest includes a

showing that “there was a substantial chance [the plaintiff] would have received the

contract award but for th[e] error.” E&L Constr. Grp., LLC v. United States, 159 Fed.

Cl. 115, 119 (2022). A “substantial chance” includes the ability to compete if a rebid

occurs, particularly where the challenger is an incumbent like Superior. VAS Realty,

LLC v. United States, 26 F.4th 945, 949–50 (Fed. Cir. 2022) (the “substantial

chance” test includes a substantial chance of receiving the award on rebid); Omniplex

World Servs. Corp. v. United States, 105 Fed. Cl. 706, 713–14 (2012) (recognizing that

incumbency and being in the competitive range are relevant to establishing a “sub-

stantial chance” of being awarded a contract). Thus, the federal case law cited by the

Commissioner does not support her argument that Appellees lack standing.

Equally unavailing is the Commissioner’s suggestion that Appellees should

have protested how HHSC would employ the statutory preferences before the no-

tices of intent to award were issued. Appellees could not have known the

Commissioner would ignore the required statutory preferences until after the notices

of intent to award were issued, particularly when the RFP—as the Commissioner

agrees—indicated that HHSC would follow these statutes. (See HHSC Resp. at 26.)

Contrary to the Commissioner’s argument, Wilson, is on point. The court in

no way limited its ruling to the fact that the petitioner there was an entity qualifying

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 27
for the mandatory contract award under section 533.004(a). See 607 S.W.3d at 854

(by alleging that the Commissioner refused to award a contract in accordance with

section 533.004(a), petitioner alleged an ultra vires act). In any case, the trial court’s

findings here that the Commissioner has acted and will act ultra vires under sections

533.003(a)(1) and 536.052(d), which require preferences for certain plans based on

their provider networks and quality metrics, are well-supported by the evidence. The

Commissioner failed to even train or instruct the evaluators about the existence or

application of the mandatory preferences. (5RR:88–89.) The evaluators’ ignorance

of the preferences is borne out by the results, as the record shows that the proposed

contract awards would eliminate the highest-ranked plan—including Superior in cer-

tain service areas—in 11 out of 13 regions, and that the awarded plans lack

participation from providers who have historically served Medicaid or charity care

populations. (7RR:104–12.) The Commissioner thus fails to show any basis to reject

the trial court’s findings that Appellees have a probable right to relief on these ultra

vires claims.

The Commissioner next contends that section 2155.144’s general require-

ment to use a procurement method providing best value to the agency somehow

trumps any statutory preferences that the Commissioner deems in conflict with that

directive. (HHSC Resp. at 27–28.) There is no conflict, and this Court should be

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 28
wary of finding conflict, particularly where the statutes can easily be harmonized.

See, e.g., Duarte v. Disanti, 292 S.W.3d 733, 735 (Tex. App.—Dallas 2009, no pet.)

(“Finally, we do not give a statute meaning that conflicts with other provisions if we

can reasonably harmonize the provisions.”); Sw. Life Ins. Co. v. Montemayor, 24

S.W.3d 581, 585 (Tex. App.—Austin 2000, pet. denied) (“Indeed when there is a

positive and clear inconsistency between two statutes, courts must adopt a reading

that harmonizes the statutes if at all possible.”). And even if the statutes were in

conflict, the more specific statutes applicable to this managed care procurement (in-

cluding sections 533.003, 533.004, and 536.052) prevail over the more general

statute, section 2155.144. See Tex. Gov’t Code § 311.026.

The court in Wilson rejected a similar argument about section 2155.144.

There, the Commissioner pointed to section 2155.144(n) and likewise argued that

“he could award the contracts to any entities that provided the best value and did

not have a ministerial duty to award a contract” pursuant to the mandatory contract

requirement in section 533.004(a). 607 S.W.3d at 853. The court disagreed, finding

no conflict in requiring the Commissioner to adhere to both the “generally applicable

best value requirements” in section 2155.144 and the requirement to award a con-

tract in accordance with section 533.004(a), even over the Commissioner’s

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 29
arguments that this did not achieve best value. Id. at 854; see also id. at 846–47 (ac-

knowledging that the Commissioner “must comply with statutory requirements

such as those found in chapter 2155 …, which addresses ‘General Rules and Proce-

dures’ for purchasing” and, in addition, “must implement the Medicaid managed

care program by contracting with MCOs in a manner consistent with chapter 533”).

So too here. Although the Commissioner certainly must comply with the gen-

erally applicable requirements to employ a procurement method that will provide

best value, that does not mean she can ignore the specific statutory preferences and

requirements set out in sections 533.003, 533.004, and 536.052(d) in awarding man-

aged care contracts. See id. at 854. 3

The Commissioner then suggests she maintains discretion in applying the

preferences, and states that the preferences only come into play when “two bidders

offer the same value.” (HHSC Resp. at 27.) But “preference” has a common mean-

ing in no way limited to the circumstance where a tie must be broken. See Preference,

3
The Commissioner’s new argument that “best value” trumps all other considerations
also runs counter to the Commissioner’s intent to award a CHIP contract to every respond-
ent in the procurement that claimed entitlement to a Medicaid mandatory contract under
section 533.004, regardless of that respondent’s score under the purported best value cri-
teria, including the respondent that came in last place out of all 18 respondents. (6RR:59,
157.)

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 30
Merriam-Webster Online Dictionary (“the act of preferring; the state of being pre-

ferred”; “the act, fact, or principle of giving advantages to some over others”);

Preferred, Merriam-Webster Online Dictionary (“liked better or best”). The Com-

missioner even agrees that the statutory term “preference” means choosing one

respondent over another in another context in this same procurement. (5RR:118–19

(Kay Molina admitted that HHSC treated the preference purportedly found in

Texas Health & Safety Code section 62.155(c) differently from the preferences in

sections 533.003 and 536.052—meaning that, in the case of section 62.155(c)(1) only,

HHSC used the preference to choose one type of respondent over another).)

The Commissioner next suggests that the onus was on Appellees to present

information in their proposals so that HHSC could apply the preferences and Appel-

lees failed to do so. (HHSC Resp. at 28.) But the statutes place the responsibility of

effecting the preferences on the Commissioner and HHSC, not Appellees. Tex.

Gov’t Code § 533.003(a) (“In awarding contracts to managed care organizations,

the commission shall … .” (emphasis added)); Tex. Gov’t Code § 536.052(d)

(“In awarding contracts to managed care organizations under [CHIP] and Medicaid,

the commission shall … give preference … .” (emphasis added)). This argument is

even more nonsensical because the Commissioner and HHSC already have access to

information they would need to apply the preferences (such as quality metrics and

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 31
information regarding provider networks) yet chose to ignore that information.

(6RR:162–64; 5RR:162.) In sum, the statutory preferences apply, and their applica-

tion is not discretionary.

(b) Appellees have a probable right to relief on their claims
that the Commissioner has failed to apply or will fail to
apply statutory preferences.

The Commissioner argues that she acted within her discretion in applying the

preference contained in section 533.003(a)(1). (HHSC Resp. at 28–30.) The Com-

missioner again suggests that she would use her discretion to apply a preference only

where a tie existed between proposals. (Id. at 29.) But that conflicts with the statute’s

plain language.

Section 533.003(a)(1) is clear: “In awarding contracts to managed care organ-

izations, the commission shall … give preference to organizations that have

significant participation” by providers in the region who have traditionally provided

care to Medicaid and charity care patients. Tex. Gov’t Code § 533.002(a)(1).

“Shall” is mandatory. See, e.g., Frank, 255 S.W.3d at 324. And as discussed above,

the word “preference” has a common and ordinary meaning: choosing one thing

over another. Nothing supports the Commissioner’s argument that she had the dis-

cretion to apply the preference only when she wished to do so, e.g., in case of a tie or

all things otherwise being equal. Arguing that there is some discretion in determining

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 32
what “significant participation” means or who qualifies as a provider who has “tra-

ditionally provided care to Medicaid and charity care patients” does not absolve the

Commissioner’s disregard of the statutory preference requirement.

Furthermore, the Commissioner cannot rely on the cited best value evaluation

criteria or technical questions to contend that HHSC somehow did account for sec-

tion 533.003(a)(1) in the procurement. Section 533.003(a)(1) requires HHSC, in

awarding contracts to MCOs, to give preference by region to those MCOs that have

significant participation in the MCO’s provider network from each health care pro-

vider in the region that has traditionally provided care to Medicaid and charity care

patients. Thus, section 533.003(a)(1) mandates that HHSC give preference based on

provider networks already in place in each region when HHSC makes contract

awards. None of the RFP’s best value evaluation criteria or technical questions re-

quested information regarding a respondent’s existing provider network at all, let

alone by region. And even the provisions the Commissioner cites do not relate ex-

pressly to providers who traditionally provide care to Medicaid and charity care

patients, but “Providers” writ more broadly. (See HHSC Resp. at 30.) Nor were the

evaluators given any information necessary to apply the preference, such as which

providers traditionally provide care to Medicaid and charity patients, let alone even

informed of a preference requirement. (5RR:98.)

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 33
The Commissioner says HHSC had substantial discretion in applying section

536.052(d) and applied the preference through some of the best value criteria and

technical questions. (HHSC Resp. at 31–32.) Section 536.052(d) is again clear and

mandatory: “In awarding contracts to managed care organizations under the child

health plan program and Medicaid, the commission shall … give preference to an organ-

ization that offers a managed care plan that successfully implements quality

initiatives” or “meets quality of care and cost-efficiency benchmarks” as specified

under the statute. Tex. Gov’t Code § 536.052(d) (emphasis added).

The Commissioner admits that no benchmarks were developed and confirms

that she was proceeding under the subsection requiring consideration of which MCO

“offers a managed care plan that successfully implements quality initiatives … as

determined by the commission based on data or other evidence provided by the or-

ganization.” (HHSC Resp. at 31.) But she readily admitted in public testimony

before the House Human Services Committee that existing quality metrics were not

considered in making the contract awards. (6RR:162–64; 5RR:162 & Ex. P-148 at 64–

65.) HHSC merely considered what the respondents promised to do in the future.

(Id.) That plainly does not comply with the statute. Nor is it sufficient to argue that

respondents should have submitted and did not submit the relevant information for

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 34
the preference’s application; the statute assigns the responsibility to HHSC to grant

the preference. Tex. Gov’t Code § 536.052(d).

The Commissioner suggests that HHSC considered the information neces-

sary to employ the preference by considering responses to Technical Question 13,

which asked bidders to “[d]escribe the Respondent’s Quality Improvement and per-

formance evaluation strategies and initiatives specific to the STAR, CHIP, and

HTW populations.” (9RR:330.) This question was forward-looking, seeking “strat-

egies and initiatives” that will be employed under the STAR & CHIP contracts

awarded under the RFP, not quality initiatives that any MCO is now implementing.

Indeed, Ramirez confirmed that the procurement process did not consider or evalu-

ate the quality initiatives previously implemented by any plan. (5RR:224–28.)

The Commissioner next disputes that she failed to ensure mandatory con-

tracts under section 533.004 were awarded considering section 533.003(a)(1), which

requires giving preference to organizations with significant participation in their pro-

vider network from health care providers in the region who have traditionally

provided Medicaid and charity care. (HHSC Resp. at 33–34.) As explained above,

the Commissioner did not actually employ the preference required by section

533.003(a)(1), and thus her argument that the selection of mandatory contracts was

also under that provision falls flat. Indeed, the record evidence shows that the only

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 35
consideration in awarding a mandatory contract under section 533.004(a) was

whether HHSC validated a claim of entitlement to such mandatory contract.

(6RR:59, 157.) And contrary to what the Commissioner says, it is a question of the

Commissioner’s authority to choose a winner, and not a question of what “weight

HHSC gave various factors.” (HHSC Resp. at 33.) The statutes that Appellees have

identified outline clear, nondiscretionary duties that must be performed by the Com-

missioner when awarding managed care contracts. She has failed to, and will fail to

adhere to, these statutes in implementing the proposed contract awards. Appellees

have stated claims for ultra vires conduct.

(3) Appellees have a probable right to relief on their claims that
HHSC wrongfully disclosed proposals.

HHSC’s wrongful disclosure of the proposals, including to Aetna’s legal

counsel, destroyed the procurement’s integrity and created an unlevel playing field

resulting in intended contract awards procured through a process that does not pro-

vide fair consideration of proposals as required by 1 T.A.C. section 391.209(3)(A),

and that is inconsistent, uniform, and transparent, as required by 1 T.A.C. section

391.101. The Commissioner responds that all respondents to the RFP agreed to the

application of the Public Information Act (“PIA”) to their proposals, and that if

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 36
HHSC mistakenly responded to a PIA request, that is simply a discretionary appli-

cation of the PIA. (HHSC Resp. at 36–37.)

No one disputes that respondents knew that PIA versions of their proposals

were eventually subject to public disclosure. But it is the manner in which HHSC

made the disclosure that created an unlevel playing field and favored one bidder over

others. (5RR:128–29 (Kay Molina agreed to the general idea of why proposals are

protected until award decision is made—to protect the procurement’s integrity—

and admitted that she knew of no other instance where a proposal was released be-

fore notices of intent to award were posted); 5RR:136–40 (acknowledging the value

of the prematurely-disclosed proposals to Aetna).) The Deputy Commissioner’s

conclusory resolution of Superior’s protest (that, in HHSC’s view, the premature

disclosure did not affect the procurement) is contradicted by the record evidence,

including HHSC’s own admission that the disclosure was wrongful. (5RR:138–39

(discussing correspondence in which HHSC employees admitted the proposals were

disclosed in error and asked the recipient to destroy the copies); CR:3546–47, 3588–

3639; see also 6RR:16–17 (testimony of Superior’s procurement expert).)

In short, the Commissioner fails to show any basis to reject the trial court’s

finding that Appellees have a probable right to relief on their claim that the Commis-

sioner acted ultra vires in the premature disclosure of the proposals while the

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 37
procurement was pending and will continue to act ultra vires if she awards and exe-

cutes the contracts knowing of the wrongful proposal disclosure.

(4) The trial court appropriately found that Appellees have a proba-
ble right to relief on their claims that the Commissioner will act
ultra vires in failing to certify the proposals in accordance with
section 533.0035 and in awarding “mandatory” CHIP con-
tracts in violation of section 536.052(d).

The Commissioner next argues that the trial court “invented” statutory man-

dates in support of the temporary injunction. (HHSC Resp. at 38–41.) But after a

three and a half day evidentiary hearing, the trial court simply applied the plain lan-

guage of the relevant laws to the facts and found that Appellees have a probable right

to relief on their claims sufficient to warrant entry of a temporary injunction.

Texas Government Code section 533.0035(a) is one such clear, nondiscretion-

ary statute: “Before the commission may award a contract under this chapter to a

managed care organization, the commission shall evaluate and certify that the organiza-

tion is reasonably able to fulfill the terms of the contract, including all requirements of

applicable federal and state law.” Tex. Gov’t Code § 533.0035(a) (emphasis

added). While the Commissioner contends that this statute requires no investigation

by HHSC, and that HHSC may simply rely on what is presented by the respondents,

the word “evaluate” in the statute plainly requires more than the self-certification

that HHSC allowed.

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 38
The Commissioner also argues that there is no statutory basis to prohibit the

procurement of CHIP and STAR services together. (HHSC Resp. at 40–41.) But

that misconstrues Appellees’ argument. No one is arguing that CHIP and STAR

(i.e., Medicaid) services may not be procured through the same RFP. But what the

statutes do prohibit is any mandatory CHIP contract award under section 533.004

(which expressly applies only to Medicaid managed care services and not CHIP and

is an exception to competitive procurement, see Wilson, 607 S.W.3d at 854) where

Texas Health & Safety Code section 62.155(a) mandates competitive procurement

for CHIP contracts. Section 62.155(c)(1)’s statement that the Commissioner “may

give preference to a person who provides similar coverage under the Medicaid pro-

gram,” Tex. Health & Safety Code § 62.155(c)(1) (emphasis added), does

not mean that the Commissioner can simply ignore the requirement to competitively

procure CHIP contracts in subsection (a).

The Commissioner boldly contends that “HHSC’s decision to procure the

CHIP piece with the mandatory STAR piece is consistent with the best-value scoring

to award the CHIP contracts competitively” (HHSC Resp. at 40–41), but this is demon-

strably untrue. The mandatory contracts were not awarded based on any “best-value

scoring.” They were automatically given without regard to the score under the best

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 39
value criteria. That is how you end up with the lowest-scoring of all 18 respondents re-

ceiving a mandatory contract for both STAR and CHIP services. (6RR:59, 157.)

The trial court therefore correctly concluded that Superior and the other Ap-

pellees have established a probable right to relief on the merits of their claims. None

of the Commissioner’s arguments about the purported merits of the claims warrant

denying Rule 29.3 relief.

3. The equities weigh heavily in favor of temporary relief.

To argue that the equities weigh against temporary relief, the Commissioner

argues that the State’s interest in enforcing its laws is the paramount concern.

(HHSC Resp. at 43.) But the case the Commissioner relies on is not applicable, and

the Commissioner’s argument ignores the fundamental purpose of ultra vires suits.

In State v. City of San Marcos, the State sued to enjoin a city ordinance that allegedly

violated state law. 714 S.W.3d 224, 231 (Tex. App.—15th Dist. 2025, pet. filed). This

Court found that the State had a likelihood of success on the merits of its claim that

state law preempted the ordinance. Id. at 243. Then, in analyzing the factors govern-

ing temporary relief, the Court found that the equities weighed in favor of enjoining

the ordinance because of the State’s interest in enforcing its laws. Id. at 245.

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 40
Here, the circumstances are reversed. The trial court correctly found that

there is a likelihood that Appellees will succeed on their claim that the Commis-

sioner’s actions and proposed actions are ultra vires. See Part 2.D. Thus, in contrast

to San Marcos, the likelihood here is that the State will lose. Additionally, the State

has no interest in continuing ultra vires conduct. In fact, as discussed above, an ultra

vires suit’s purpose is to “to reassert the control of the state” over an official who is

acting contrary to law. Houston Belt & Terminal Ry. Co., 487 S.W.3d at 164. The

Commissioner’s ultra vires acts are by definition not the sovereign’s acts. Id. The

Commissioner’s protest that the courts have “interfered” with the procurement ig-

nores the trial court’s findings that the procurement violated multiple state laws and

that executing the planned contracts would also violate the law. Any disruption in

the process therefore results from the Commissioner’s ultra vires conduct, not Ap-

pellees’ suit or the injunctive relief. The Commissioner has no right to violate the

law. See In re State, 711 S.W.3d 641, 648 (Tex. 2024) (orig. proceeding) (“The

County is not harmed by being required to follow the Texas Constitution.”). Thus,

the State’s asserted interest in enforcing the law would be served by the temporary

relief Appellees seek.

The Commissioner also misconstrues Appellees’ interests. Appellees do not

assert a right to a contract with the State. Instead, they have asserted a right to a

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 41
procurement process that follows the law. Appellees have a right to a process that

complies with the legislature’s mandates including giving the required preferences.

And they have a right to a fair process not tainted by improper disclosure of their

bids to competitors during the process. See Part 2.D. If Appellees are correct that the

proposed contract awards and the Commissioner’s future actions if she finalizes

those contract awards are ultra vires, then their existing contracts should not be re-

placed by unlawfully awarded contracts. The harms Appellees face (see Part 2.A.)

would result from that improper replacement. For the reasons discussed in Part 2.A.,

the Commissioner’s arguments that Appellees do not face imminent, irreparable

harm cannot succeed. As a direct result of the Commissioner’s ultra vires acts, Su-

perior faces serious irreparable harm if the Commissioner executes unlawfully

awarded contracts. See Part 2.A.

Similarly, the Commissioner attempts to brush aside the significant harms to

the public the trial court found. (HHSC Resp. at 48–50.) Millions of Texans will be

required to find new health plans if the proposed contracts are executed. (Superior

Mot. at 22.) And that disruption will be the result of an unlawful process. The Com-

missioner’s claimed interest in “efficient provision of Medicaid services” cannot

excuse the many ways that the procurement violates Texas law. The Commis-

sioner’s public-interest arguments are also premised on her repeated (and mistaken)

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 42
assertion that she has essentially unfettered discretion to determine which health

plans best serve the public interest regardless of whether she does so in flagrant dis-

regard of the law. (HHSC Resp. at 43.) As discussed in Part 2.D., that discretion is

limited by multiple state laws, and the trial court correctly found that the procure-

ment likely violated those laws. Thus, the Commissioner’s argument that her

interest in proceeding with the contract awards is in the public interest is simply in-

correct.

Finally, the Commissioner is wrong about what preserving the status quo

means here. As discussed in Superior’s motion, the status quo is that the intended

contracts have not yet been signed. The Commissioner makes no effort to address

the cases Superior cited in its motion about the proper understanding of the status

quo. (Superior Mot. at 31–32.) “Where an order is entered by a Board or Commis-

sion of this State in opposition to the objections and contentions of a party whose

justiciable interests are adversely affected thereby, the ‘status quo’ would be the

state of affairs as they existed immediately prior to the time the order was entered.”

Tex. State Bd. of Exam’rs in Optometry v. Lane, 349 S.W.2d 763, 765 (Tex. App.—

Fort Worth 1961, no writ) (citing Transp. Co. of Tex. v. Robertson Transports, Inc., 261

S.W.2d 549 (Tex. 1953)). And in Texas Health & Human Services Commission v. Sa-

cred Oak Medical Center, LLC, the court recognized that the status quo was the state

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 43
of affairs before the agency issued its order refusing to renew the plaintiff's license

and that the proper temporary relief was an order reinstating the license pending the

appeal’s resolution. No. 03-21-00136-CV, 2021 WL 2371356, at *7 (Tex. App.—

Austin June 9, 2021). Preserving the status quo here requires enjoining the Commis-

sioner from executing the intended contracts. The Commissioner herself recognized

that by repeatedly extending the existing contracts during the multiple (ultimately

abandoned) prior procurement processes and by agreeing to keep the trial court’s

injunction in place while this Court considers the Appellees’ motions for temporary

relief from this Court. The Court should grant the requested relief and keep that

status quo in place while it considers the merits of the Commissioner’s appeal.

Conclusion and Prayer
The trial court correctly found that the Commissioner has acted ultra vires

and will act ultra vires if she executes the contracts announced in the intent to award.

This Court should therefore grant temporary relief to continue the injunctive relief

awarded by the trial court to preserve this Court’s jurisdiction to hear this case on

the merits. Failure to do so will irreparably harm Appellees and the public and may

impact this Court’s ability to grant effective judicial review. Superior further re-

quests general relief.

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 44
Dated: September 24, 2025
Respectfully submitted,
Holland & Knight LLP

By: /s/ Richard B. Phillips, Jr.

Richard B. Phillips, Jr.
Texas Bar No. 24032833
rich.phillips@hklaw.com

One Arts Plaza
1722 Routh Street, Suite 15500
Dallas, Texas 75201
(214) 964-9500 (telephone)
(214) 964-9501 (facsimile)

Karen D. Walker
Admitted Pro Hac Vice
karen.walker@hklaw.com
Tiffany Roddenberry
Admitted Pro Hac Vice
tiffany.roddenberry@hklaw.com

315 S. Calhoun Street, Suite 600
Tallahassee, Florida 32301
(850) 425-5612 (telephone)
(850) 224-8832 (facsimile)

Attorneys for Appellee
Superior HealthPlan, Inc.

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 45
Certificate of Compliance
I certify that this reply contains 9,972 words, excluding the portions of the
Motion exempted by Rule 9.4(i)(1).

/s/ Richard B. Phillips, Jr.
Richard B. Phillips, Jr.

Appellee Superior HealthPlan, Inc.’s Reply in Support of
Motion for Temporary Relief — Page 46
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