Rusk State Hospital and Texas Health and Human Services Commission v. David McGowan

NO. 12-24-00295-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RUSK STATE HOSPITAL AND TEXAS § APPEAL FROM THE 2ND
HEALTH AND HUMAN SERVICES
COMMISSION,
APPELLANTS
§ JUDICIAL DISTRICT COURT
V.

DAVID MCGOWAN,
APPELLEE § CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION
PER CURIAM

Rusk State Hospital (the Hospital) and Texas Health and Human Services Commission
(the Commission) appeal the trial court’s implicit denial of their plea to the jurisdiction. We
dismiss for want of jurisdiction.

BACKGROUND
On May 14, 2021, the trial court granted Appellee David McGowan’s petition for pre-suit
discovery against the Hospital and the Commission, which allowed McGowan to take the pre-
suit depositions of Kerri Taylor (an investigator for the Hospital) and the Hospital’s corporate
representative. On May 24, the trial court denied Appellants’ pre-suit plea to the jurisdiction.
The Hospital, the Commission, and Taylor appealed. See Rusk State Hospital v. McGowan, No.
12-21-00086-CV, 2021 WL 5562828, at *1 (Tex. App.—Tyler Nov. 17, 2021, no pet.) (per
curiam) (mem. op.). 1 The parties later filed a stipulation to dismiss the appeal, asking that this

1
An appellate court may take judicial notice of its own records in the same or a related proceeding
involving the same or nearly the same parties. See Humphries v. Humphries, 349 S.W.3d 817, 820 n.1 (Tex.
App.—Tyler 2011, pet. denied).
Court set aside the trial court’s orders granting McGowan’s Rule 202 petition and denying
Appellants’ plea to the jurisdiction, and remand the case to the trial court to dismiss the Rule 202
petition. Id. We granted the agreed motion to dismiss, rendered judgment setting aside the 2021
discovery order and the 2021 order denying Appellants’ plea to the jurisdiction, and remanded
the case for rendition of judgment in accordance with the parties’ agreement. Id. The record
does not indicate that the trial court ever rendered judgment dismissing the Rule 202 petition or
otherwise in accordance with the parties’ agreement.
In July 2023, McGowan sued the Hospital for discrimination and retaliation under the
Texas Human Rights Act. 2 That November, McGowan filed a motion to compel based on the
2021 discovery order, complaining that Appellants failed to comply with the order. He asked
that the trial court reorder Appellants to comply with the 2021 order. On December 5, the
Commission filed a plea to the jurisdiction asserting that McGowan failed to allege
discrimination and retaliation claims, a prima facie aiding and abetting discrimination claim, or a
pattern and practice claim. The Commission further argued that sovereign immunity barred
McGowan’s punitive damages claim. The Commission filed a motion to stay discovery pending
resolution of the plea to the jurisdiction. McGowan filed a first amended motion to compel, in
which he acknowledged that the 2021 order was set aside by agreement but argued that once the
case was remanded, the trial court never entered an order disposing of the Rule 202 petition.
McGowan asserted that he sought production of the same discovery, but not enforcement of the
2021 order. McGowan also sought a stay of a ruling on the plea to the jurisdiction to allow time
to conduct discovery.
On December 18, the trial court granted the Commission’s request for a stay of
discovery. But on January 3, 2024, the trial court signed a discovery order that granted
McGowan’s motion to stay a ruling on the plea to the jurisdiction, granted McGowan’s motion to
compel discovery, ordered the parties to comply with the order of May 14, 2021, granted
McGowan’s request for a docket control order, and ordered the parties to submit a proposed
order by February 2. On January 18, the trial court signed an order clarifying that the January 3
order “permits discovery that is germane to Plaintiff’s response to Defendant’s Plea to the
Jurisdiction.” On February 2, McGowan filed another motion to compel discovery accusing

2
According to the Commission, the Hospital is a state-run hospital administered and overseen by the
Commission and is not a separate entity, making the Commission the proper defendant.

2
Appellants of “stonewall[ing].” On July 17, the trial court signed a discovery order requiring
that Appellants produce complete answers to all discovery requests within thirty days and to
produce certain witnesses for deposition within sixty days. This proceeding followed.

JURISDICTION
McGowan filed a motion to dismiss the appeal on grounds that this Court lacks
jurisdiction absent a ruling on the plea to the jurisdiction.
Appellate review is ordinarily limited to final judgments. Harley Channelview
Properties, LLC v. Harley Marine Gulf, LLC, 690 S.W.3d 32, 37 (Tex. 2024). An appellate
court has no jurisdiction to review an interlocutory order unless review is conferred by statute.
Id. A person may appeal from an interlocutory order of a district court, county court at law,
statutory probate court, or county court that grants or denies a plea to the jurisdiction by a
governmental unit. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2024).
Appellants appeal from the “implicit denial” of their plea to the jurisdiction. In response
to the motion to dismiss, Appellants argue that the trial court ordered them to produce “blatantly
non-jurisdictional” discovery, which they maintain constitutes an implicit ruling on their plea to
the jurisdiction.
Appellants correctly argue that this Court may exercise jurisdiction over the implicit
denial of a plea to the jurisdiction. See Thomas v. Long, 207 S.W.3d 334, 339-40 (Tex. 2006).
In Thomas, jurisdiction was established where the trial court’s rulings on the merits of some of
the claims for which Thomas challenged subject matter jurisdiction constituted an implicit
rejection of Thomas’s jurisdictional challenges. See id. Distinguishing Thomas, the Fifteenth
Court of Appeals recently rejected a contention that the trial court implicitly denied a plea to the
jurisdiction by setting a case for trial. See Paxton v. City of Austin, No. 15-24-00078-CV, 2024
WL 4446073, at *1-2 (Tex. App.—Austin [15th Dist.] Oct. 8, 2024, no pet. h.) (mem. op.). In
that case, the trial court explicitly declined to rule on the plea to the jurisdiction, instead
announcing its intent to take the plea under advisement and did not issue an order or ruling on
the merits but rather proceeded to trial. Id. at *2. Concluding that it lacked jurisdiction over the
appeal, the Fifteenth Court explained, “In this case, our record does not contain any merits order
that could be construed as an implicit denial of the plea to the jurisdiction as the court did in
Thomas.” Id.

3
Here, as in Paxton, the record demonstrates that the trial court explicitly declined to rule
on the plea to the jurisdiction. As previously discussed, the trial court signed an order granting
McGowan’s request for a stay of a ruling on the plea to the jurisdiction. Furthermore, at a
hearing on October 3, the trial judge repeatedly stated that he had not denied the plea to the
jurisdiction nor ruled on the plea to the jurisdiction. 3 The court further stated as follows:

There may be some kind of implicit denial of a plea to jurisdiction that I am not aware of, but the
court will need to decide that is the case because clearly this court has not ruled on your plea to the
jurisdiction. The court is happy to rule on that once the issue is [ripe] for the court to consider,
after the lapse in discovery. And so, in my mind, there’s been no denial of your plea. I have not
ruled on [it]. I may rule in your favor when the time comes, but it’s just premature.

Subsequently, the trial court again stated, “…The court has not ruled on your plea to the
jurisdiction.”
Accordingly, the record before us demonstrates that the trial court neither explicitly nor
implicitly ruled on the plea to jurisdiction. 4 Rather, the trial court stayed a ruling on the plea and
expressly declined to rule on the plea to the jurisdiction, reserving a ruling for a later date. And
we decline to construe the discovery order in this case as a ruling on the merits sufficient to
constitute an implicit denial of the plea to the jurisdiction. 5 Under these circumstances, we

3
Appellants argue that we cannot consider this hearing because it occurred after the rulings challenged on
appeal, was not evidence before the trial court at the time it made the challenged rulings, and the record has not been
supplemented to include the hearing. However, the Commission filed an original proceeding on October 8,
appellate cause number 12-24-00296-CV, and included a transcript of the October 3 hearing in the record. As
previously noted, this court may take judicial notice of its own records in the same or a related proceeding involving
the same or nearly the same parties. See Humphries, 349 S.W.3d at 820, n.1. Furthermore, we agree that an
“appellate court’s review of the merits of a trial court’s ruling is limited to the record in the trial court when the trial
court ruled, and the appellate court does not consider events that occurred after the trial court’s ruling.” Brazoria
Civic Club v. Brazoria Cty. Appraisal Dist., 694 S.W.3d 854, 866 (Tex. App.—Houston [14th Dist.] 2024, no pet.)
(emphasis added). While we cannot consider the October 3 hearing when determining the propriety of any ruling on
the plea to the jurisdiction, whether the trial court implicitly denied the plea to the jurisdiction does not require a
decision on the merits and is not the same inquiry as whether any ruling on the plea to the jurisdiction is proper.
4
Appellants cite Gordon Independent School District v. Hinkson, 661 S.W.3d 922 (Tex. App.—Eastland
2023, orig. proceeding) as analogous to this case. However, in that case, the trial court not only allowed depositions
to proceed over jurisdictional challenges, but in its pre-suit deposition order, the trial court stated it considered the
plea to the jurisdiction and included a clause denying relief “not expressly granted.” Hinkson, 661 S.W.3d at 927-
28. Thus, Hinkson included evidence of an implicit denial that this case does not have.
5
“[T]rial courts considering a plea to the jurisdiction have broad discretion to allow ‘reasonable
opportunity for targeted discovery.’” Mission Consol. Indep. School Dist. v. Garcia, 372 S.W.3d 629, 642-43 (Tex.
2012). “Because courts should determine whether they have jurisdiction as early as practicable, courts should allow
‘reasonable opportunity for targeted discovery’ if necessary to illuminate jurisdictional facts in a plea to the
jurisdiction.” Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 491 (Tex. 2012) (quoting Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 233 (Tex. 2004)). “Mandamus relief is available when a trial court
compels production beyond the permissible bounds of discovery.” In re Weekley Homes, L.P., 295 S.W.3d 309,

4
conclude that we lack jurisdiction over the appeal at this juncture of the proceedings. See
Rattray v. City of Brownsville, 662 S.W.3d 860, 868 (Tex. 2023) (“court may not reach the
merits if it finds a single valid basis to defeat jurisdiction”); see also Paxton, 2024 WL 4446073,
at *3; City of Laredo v. Rodriguez, No. 04-24-00093-CV, 2024 WL 950627, at *1-2 (Tex.
App.—San Antonio Mar. 6, 2024, no pet.) (per curiam) (mem. op.) (dismissing for want of
jurisdiction appeal from implicit denial of plea to jurisdiction where trial court order expressly
abated a ruling on the plea until a later date and granted a continuance to conduct additional
discovery on jurisdictional issues); Guadalupe Cty. Sheriff’s Office v. Garcia, No. 13-23-
00191-CV, 2023 WL 8817848, at *2 (Tex. App.—Corpus Christi Dec. 21, 2023, no pet.) (mem.
op) (order did not constitute implicit denial of plea to jurisdiction where order granted
continuance for purpose of permitting discovery relating to jurisdictional arguments).

DISPOSITION
Having concluded that we lack jurisdiction over this appeal, we grant McGowan’s
motion to dismiss, and we dismiss the appeal for want of jurisdiction. We lift our stay of
October 9, 2024.

Opinion delivered October 31,2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

322 (Tex. 2009) (orig. proceeding); In re Lamar Univ., No. 09-18-00241-CV, 2018 WL 3911062, at *3 (Tex.
App.—Beaumont Aug. 16, 2018, orig. proceeding) (granting mandamus relief where trial court ordered expedited
discovery on matters unrelated to jurisdiction); see In re Brown, No. 05-20-00639-CV, 2020 WL 4047965, at *4
(Tex. App.—Dallas July 20, 2020, orig. proceeding) (mem. op.) (ordering trial court to vacate order deferring ruling
on plea to the jurisdiction and ordering expedited discovery). Thus, in this proceeding, we do not reach the issue of
whether the ordered discovery is appropriate.

5
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER 31, 2024

NO. 12-24-00295-CV

RUSK STATE HOSPITAL AND TEXAS HEALTH AND HUMAN SERVICES
COMMISSION,
Appellants
V.
DAVID MCGOWAN,
Appellee

Appeal from the 2nd District Court
of Cherokee County, Texas (Tr.Ct.No. 2021040098)

THIS CAUSE came to be heard on the appellate record and the Appellee’s
motion to dismiss; and the same being considered, it is the opinion of this Court that this appeal
should be dismissed for want of jurisdiction.

It is therefore ORDERED, ADJUDGED and DECREED by this Court that
the appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision
be certified to the court below for observance.

By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.