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

ACCEPTED
15-24-00114-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
12/9/2025 10:03 PM
No. 15-24-00114-CV CHRISTOPHER A. PRINE
___________________________________________________ CLERK
FILED IN
In the Fifteenth Court of Appeals 15th COURT OF APPEALS
AUSTIN, TEXAS
Austin, Texas 12/9/2025 10:03:13 PM
___________________________________________________
CHRISTOPHER A. PRINE
Clerk
CECILE ERWIN YOUNG,
in her Official Capacity as the Executive Commissioner
of the Texas Health and Human Services Commission

Appellant,

vs.

COOK CHILDREN’S HEALTH PLAN, et al.,

Appellees.
___________________________________________________

Appeal from 353rd Judicial District Court
Travis County, Texas
___________________________________________________

Brief of Appellee
Wellpoint Insurance Company
___________________________________________________

Michelle Y. Ku Robert F. Johnson III
Texas Bar No. 24071452 Texas Bar No. 10786400
mku@foley.com rjohnson@foley.com
Stacy R. Obenhaus Foley & Lardner LLP
Texas Bar No. 15161570 600 Congress, Suite 3000
sobenhaus@foley.com Austin, Texas 78701
Foley & Lardner LLP Tel: 512.542.7000
2021 McKinney, Suite 1600 Fax: 512.542.7100
Dallas, Texas 75201
Tel: 214.999.3000 Counsel for
Fax: 214.999.4667 WellPoint Insurance Company

Oral argument requested
List of Parties and Counsel

Appellate and Trial Counsel for Wellpoint Insurance Company:

Michelle Y. Ku Robert F. Johnson III
mku@foley.com rjohnson@foley.com
Stacy R. Obenhaus Foley & Lardner LLP
sobenhaus@foley.com 600 Congress, Suite 3000
Brantley Smith Austin, Texas 78701
bsmith@foley.com Tel: 512.542.7000
Foley & Lardner LLP
2021 McKinney, Suite 1600
Dallas, Texas 75201
Tel: 214.999.3000

Of counsel:
Benjamin J. Grossman
bjgrossman@foley.com
106 E. College Ave., Suite 900
Tallahassee, Florida 32301
Tel: 850.222.6100

Wellpoint otherwise adopts the list of parties and counsel of the parties to
this appeal.

2
Table of Contents

List of Parties and Counsel ............................................................................ 2
Table of Contents .......................................................................................... 3
Index of Authorities ...................................................................................... 4
Statement of the Case .................................................................................... 9
Statement Regarding Oral Argument............................................................ 9
Issues Presented .......................................................................................... 10
Statement of Facts ........................................................................................ 11
Summary of Argument ................................................................................ 20
Argument .................................................................................................... 24
I. The Trial Court Has Subject Matter Jurisdiction. .......................... 24
A. Wellpoint’s claims are ripe. ........................................................ 24
B. Texas courts have not made exhausting administrative
remedies a condition precedent to filing ultra vires claims........ 29
II. The Trial Court Properly Enjoined The Commissioner. ................ 35
A. Wellpoint will likely prevail on its ultra vires claims. ................. 38
i. Evidence supports findings that the Commissioner
exceeded her powers by acting without legal authority. ......... 38
ii. Evidence supports findings that the Commissioner
exceeded her powers by ignoring statutes requiring
specified actions. ..................................................................... 43
iii. Wellpoint seeks only prospective relief................................... 57
iv. Wellpoint asserted other valid ultra vires claims. ................... 58
B. Equity favors Wellpoint—and the citizens of Texas. .................. 58
C. The injunction satisfies Rule 683. .............................................. 63
D. Excluding the Commissioner’s hearsay was proper and, in
any event, harmless. ................................................................... 65
Prayer .......................................................................................................... 69
Certificate of Compliance ............................................................................ 70

3
Index of Authorities

Federal Cases
Axon Enters Inc. v. FTC
598 U.S. 175 (2023) ................................................................................. 29
State Cases
Andrade v. NAACP of Austin
345 S.W.3d 1 (Tex. 2011) ......................................................................... 26
Brennan v. City of Willow Park
376 S.W.3d 910 (Tex. App.—Fort Worth 2012, pet. denied) ................... 29
Butnaru v. Ford Motor Co.
84 S.W.3d 198 (Tex. 2002) ...................................................................... 59
Cities of Corpus Christi v. Public Utility Comm’n of Tex.
188 S.W.3d 681 (Tex. App.—Austin 2005, pet. denied) .......................... 42
City of Austin v. Whittington
384 S.W.3d 766 (Tex. 2012) .................................................................... 38
City of El Paso v. Heinrich
284 S.W.3d 366 (Tex. 2009) ................................................................... 39
City of Hous. v. Hous. Mun. Emps. Pension Sys.
549 S.W.3d 566 (Tex. 2018) ............................................................. passim
Coastal Liquids Transp. LP v. Harris Cty. Appraisal Dist.
46 S.W.3d 880 (Tex. 2001)...................................................................... 25
DaimlerChrysler Corp. v. Inman
252 S.W.3d 299 (Tex. 2008) ................................................................... 26
Fed. Sign v. Tex. S. Univ.
951 S.W.2d 401 (Tex. 1997) ..................................................................... 30
Franka v. Velasquez
332 S.W.3d 367 (Tex. 2011) ..................................................................... 39

4
Haedge v. Cent. Tex. Cattlemen’s Ass’n
603 S.W.3d 824 (Tex. 2020) ................................................................... 36
Hall v. McRaven
508 S.W.3d 232 (Tex. 2017) .............................................................. 39, 63
Harris Cnty. v. Smith
96 S.W.3d 230 (Tex. 2002) ..................................................................... 66
Henry v. Cox
520 S.W.3d 28 (Tex. 2017) ...................................................................... 36
Horton v. Kansas City S. Ry.
692 S.W.3d 112 (Tex. 2024)..................................................................... 66
In re Est. of Poe
648 S.W.3d 277 (Tex. 2022) .................................................................... 66
In re Luther
620 S.W.3d 715 (Tex. 2021) ..................................................................... 65
In re State
711 S.W.3d 641 (Tex. 2024) ..................................................................... 61
Indep. Cap. Mgmt. LLC v. Collins
261 S.W.3d 792 (Tex. App.—Dallas 2008, no pet.) ................................. 64
Jernigan v. Langley
111 S.W.3d 153 (Tex. 2003)...................................................................... 33
Kilgore ISD v. Axberg
535 S.W.3d 21 (Tex. App.—Texarkana 2017, no pet.) .............................. 29
Matzen v. McLane
659 S.W.3d 381 (Tex. 2021) ............................................................... 46, 63
Mosley v. Tex. Health and Human Servs. Comm’n
593 S.W.3d 250 (Tex. 2019) .................................................................... 53
Nootsie, Ltd. v. Williamson Cty. Appraisal Dist.
925 S.W.2d 659 (Tex. 1996) .................................................................... 25
Perry v. Del Rio
66 S.W.3d 239 (Tex. 2001) ...................................................................... 26

5
Phillips v. McNeill
635 S.W.3d 620 (Tex. 2021) .................................................................... 39
Point Energy Partners Permian LLC v. MRC Permian Co.
669 S.W.3d 796 (Tex. 2023) .................................................................... 24
Riner v. City of Hunters Creek
403 S.W.3d 919 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ..... 29, 30
Schroeder v. Escalera Ranch Owners’ Ass’n, Inc.
646 S.W.3d 329 (Tex. 2022) .................................................................... 39
State ex rel. Office of Att’y Gen. of Tex. v. City of San Marcos
714 S.W.3d 224 (Tex. App. [15th Dist.] 2025, pet. denied) ..................... 44
State v. City of Austin
714 S.W.3d 247 (Tex. App. [15th Dist.] 2025, pet. filed) ......................... 58
Strayhorn v. Lexington Ins. Co.
128 S.W.3d 772 (Tex. App.—Austin 2004) .............................................. 29
Sw. Bell Telephone, L.P. v. Emmett
459 S.W.3d 578 (Tex. 2015)................................................... 39, 44, 45, 48
Tex. Educ. Agency v. Houston ISD
660 S.W.3d 108 (Tex. 2023) .................................................................... 35
Tex. Nat. Res. Conservation Comm’n v. IT-Davy
74 S.W.3d 849 (Tex. 2002)...................................................................... 30
Univ. of Tex. Med. Sch. at Hous. v. Than
901 S.W.2d 926 (Tex. 1995) ..................................................................... 53
Wilson v. Cmty. Health Choice Tex., Inc.
607 S.W.3d 843 (Tex. App.—Austin 2020, pet. denied) ....... 32, 37, 38, 39
Winfrey v. Chandler
318 S.W.2d 59 (Tex. 1958) ....................................................................... 36

6
State Constitution and Statutes
Tex. Const. art. I, § 19 .................................................................................. 53
Tex. Const. art. V, § 8 .................................................................................. 36

Tex. Gov’t Code § 24.011 ............................................................................. 36
Tex. Gov’t Code § 311.016 ................................................................ 40, 45, 48
Tex. Gov’t Code § 532.0051 .......................................................................... 11
Tex. Gov’t Code § 536.052(b) ...................................................................... 45
Tex. Gov’t Code § 536.052(d) ................................................................ 47, 48
Tex. Gov’t Code § 543A.0001 ...................................................................... 47
Tex. Gov’t Code § 543A.0052(b) ................................................................. 45
Tex. Gov’t Code § 543A.0052(d) ........................................................... 47, 48
Tex. Gov’t Code § 552.001 ..................................................................... 28, 50
Tex. Gov’t Code § 552.002........................................................................... 50
Tex. Gov’t Code § 552.003........................................................................... 50
Tex. Gov’t Code § 552.021 ........................................................................... 50
Tex. Gov’t Code § 552.022 ........................................................................... 50
Tex. Gov’t Code § 552.0222 ......................................................................... 50
Tex. Gov’t Code § 552.221 ........................................................................... 50
Tex. Gov’t Code § 552.223 ........................................................................... 52
Tex. Gov’t Code § 552.321(a) ........................................................................51
Tex. Gov’t Code § 2155.076 ......................................................................... 54
Tex. Gov’t Code § 2155.076(a) ..................................................................... 54

7
Tex. Gov’t Code § 2155.144(c) ..................................................................... 60
Tex. Health & Safety Code § 62.051 ............................................................. 11

State Rules
Tex. R. App. P. 9.7 ................................................................................... 9, 58
Tex. R. App. P. 43.4 ..................................................................................... 69
Tex. R. App. P. 44.1 ............................................................................... 66, 67
Tex. R. Civ. P. 683 ....................................................................................... 63

State Regulations
1 Tex. Admin. Code § 391.101 ...................................................................... 54
1 Tex. Admin. Code § 391.103(a) ................................................................. 54
1 Tex. Admin. Code § 391.107 ...................................................................... 54
1 Tex. Admin. Code § 391.301...................................................................... 54
1 Tex. Admin. Code § 391.303(b) ................................................................ 55
1 Tex. Admin. Code § 391.305 ..................................................................... 55
1 Tex. Admin. Code § 391.305(c)(3) ............................................................ 34
1 Tex. Admin. Code § 391.307(d) ................................................................ 56
1 Tex. Admin. Code § 391.307(d)(1) ............................................................ 55

8
Statement of the Case

Wellpoint adopts the Statement of the Case in the briefs of the other

appellees in this appeal. See Tex. R. App. P. 9.7.

Statement Regarding Oral Argument

Wellpoint believes this Court would benefit from oral argument due to

important issues this appeal raises regarding, e.g., ripeness of claims and ul-

tra vires conduct in the procurement of government services.

9
Issues Presented

The Commissioner raises these issues:

1. Are Wellpoint’s ultra vires claims ripe?

2. Did Wellpoint need to exhaust administrative remedies before it

asserted these ultra vires claims—and if so, did Wellpoint do so?

3. Is the temporary injunction improper because:

(a) Wellpoint has no valid ultra vires claims and therefore is not likely
to succeed on the merits?
(b) the balance of equities favors the Commissioner?
(c) the injunction doesn’t satisfy Rule 683?
(d) the trial court excluded relevant evidence?

10
Statement of Facts

As discussed in the extensive briefing and other submissions filed by

the appellees in this case, including Wellpoint’s motion for injunctive relief

pending appeal (July 10, 2025), the Texas Health and Human Services Com-

mission (“HHSC”)—under a statutory mandate to implement a “Medicaid

managed care system,” Tex. Gov’t Code § 532.0051, and a separate statutory

mandate to “administer a state-designed child health plan program to obtain

health benefits coverage for children in low-income families,” Tex. Health &

Safety Code § 62.051—administers a variety of publicly-funded healthcare

programs in Texas, including the ones at issue in this lawsuit—STAR, CHIP,

and STAR Kids. Cecile E. Young, in her capacity as HHSC’s Executive Com-

missioner, issued Request for Proposals No. HHS0011152 (the “RFP”) in or-

der to invite managed care organizations (“MCOs”) to submit proposals for

contracts to provide administration and beneficiary services through these

STAR and CHIP programs in all of Texas’s thirteen service areas (P. Ex. 38).

Each appellee—Wellpoint, Superior HealthPlan Inc., Cook Children’s Health

Plan, and Texas Children’s Health Plan—is an MCO that separately partici-

pated in that proposal solicitation process.

During the RFP process, the Commissioner acted ultra vires in ways

that threaten to irreparably harm plaintiffs-appellees, the State of Texas, and

11
program beneficiaries who include some of the most economically and so-

cially vulnerable Texas citizens (CR 4231-86). The Commissioner’s actions

in the STAR and CHIP procurement—and the pending STAR Kids procure-

ment—are part of a continuing pattern of unlawful behavior that deprives

these vulnerable populations of meaningful MCO choices by replacing

proven, high-performing plans like Wellpoint with underqualified MCOs.

Wellpoint—formerly Amerigroup Insurance Company (8 RR 89)—is

an MCO that currently provides managed care services to the State of Texas

in connection with the STAR, CHIP, STAR Kids, and STAR+PLUS programs

(8 RR 65). Wellpoint has consistently, for over a decade, advocated for im-

provement of HHSC’s procurement process to ensure a fair, transparent, and

competitive process and one that follows all applicable laws (8 RR 92). Well-

point has also repeatedly exhausted HHSC’s administrative protest and ap-

peals processes in connection with numerous procurements—raising again

and again the illegalities of many of the same ultra vires acts that persisted

into the STAR and CHIP procurement and are now at issue here—only to

have each of those challenges denied (8 RR 70-84, 86-105; P. Ex. 160 [056-

57]).

Wellpoint submitted a proposal to provide STAR and CHIP managed

care services pursuant to the RFP (P. Ex. 38; P. Ex. 236). Before submitting

12
it, however, Wellpoint filed a specifications protest to the solicitation’s terms

challenging the legality of the procurement’s framework and the award of

contracts that would result from it, as well as HHSC’s authority to conduct

the RFP as published (8 RR 70-72; P. Ex. 44). Despite HHSC staff drafting a

proposed addendum to the RFP that would have resolved at least the unau-

thorized awarding of mandatory CHIP contracts that Wellpoint’s specifica-

tions protest had challenged (P. Ex. 44; P. Ex. 46; P. Ex. 266), HHSC elected

not to adopt the addendum and denied the protest in its entirety, thereby

deliberately choosing instead to move forward with the RFP as originally

(and illegally) drafted (P. Ex. 160 [087-88]). Wellpoint appealed the protest

denial to the Commissioner (P. Ex. 160 [089-104]). The Commissioner de-

nied the appeal and proceeded with the illegal procurement anyway (5 RR

111-19; 8 RR 70-79; P. Ex. 160 [105-07]).

After completing the evaluation and scoring process, the Commis-

sioner issued her notice of intent to award new STAR and CHIP contracts

and proposed contract awards for certain service areas to Wellpoint

(P. Ex. 95). Despite having been assessed as one of the highest ranked MCOs

(P. Ex. 198), and winning business under the RFP, Wellpoint—consistent

with 10+ years of advocating for improvement of HHSC’s procurement pro-

cess to ensure a fair, transparent, and competitive process and one that

13
complies with the procurement laws and procedures mandated by the legis-

lature—protested the Commissioner’s intended contract awards because,

just as Wellpoint had argued earlier in its specifications protest, the resulting

proposed awards violated Texas law (8 RR 79-84, 92; P. Ex. 44; P. Ex. 160

[036-145]).

HHSC denied the protest (8 RR 80; P. Ex. 160 [029-34]). Wellpoint

appealed the protest denial to the Commissioner (P. Ex. 160). Shortly there-

after, and concerned that the Commissioner may act quickly to deny the ap-

peal, execute contracts, and then argue that doing so had insulated her ultra

vires acts from legal review, Wellpoint sued the Commissioner for her un-

lawful behavior and sought declaratory and injunctive relief regarding the

pending and future procurements (CR 1819) and later amended its petition

(CR 4231-86). Three other MCOs filed lawsuits seeking similar relief

(CR 3308-47, 3510-60, 4716-67). The trial court consolidated these lawsuits

(CR 2778).

Wellpoint, along with each of the other current MCOs serving STAR or

CHIP recipients (some of whom are participants in this proceeding and some

of whom are not), are ensuring that the State’s STAR and CHIP programs

continue to operate without interruption, pending resolution of this matter

and completion of a lawful procurement, under bridge contracts, i.e.,

14
extensions of the existing contracts (8 RR 96-97). Following prior failed pro-

curements, the Commissioner has repeatedly “extended” or “bridged” exist-

ing contracts in operation, and there is no impediment to her continuing to

do that until a lawful STAR and CHIP procurement can be brought to a suc-

cessful completion (id.; 5 RR 181).

All plaintiffs sought a temporary injunction to bar the Commissioner

from proceeding further with the STAR and CHIP procurement and the

pending STAR Kids procurement, and from awarding, executing, or imple-

menting any proposed STAR, CHIP, or STAR Kids contracts, before a final

judgment issued. The Commissioner filed a plea to the jurisdiction asserting

that sovereign immunity protected her actions, which she claimed were not

ultra vires, and she asserted that no injunction was proper because the plain-

tiffs wrongly sought retrospective relief (CR 2949-93).

Both matters were heard together in a four-day evidentiary hearing,

where plaintiffs demonstrated that the Commissioner had acted ultra vires

in several respects. As detailed in its temporary injunction, the trial court

found at least thirteen violations of the law by the Commissioner and that

she would continue to violate the law by, for example, failing to develop and

implement quality-of-care and cost-efficiency benchmarks—despite the un-

ambiguous statutory requirement to do so under Government Code

15
§ 536.052(b) [recently recodified]—so that the Commissioner’s intended

award of new STAR and CHIP contracts would fail to give MCOs that met

such benchmarks contract award preference, despite the legislative mandate

to do so under Government Code § 536.052(d) [recently recodified] (8 RR

227-28; CR 5877).

Indeed, HHSC staff testified that HHSC has been under a statutory

mandate to develop quality-of-care and cost-efficiency benchmarks since

2011, and acknowledged that the legislature had required HHSC develop

such benchmarks specifically so they would be used by HHSC in awarding

contracts in managed care procurements (8 RR 180-85). In fact, as HHSC

staff conceded, the legislature again reminded the agency of the statutory

duty to develop these benchmarks via a budget rider in 2021, and yet, despite

this longstanding statutory duty mandating the development and use of

these benchmarks, HHSC has done neither (8 RR 180-81). In short, HHSC

has never used the legislatively-mandated benchmarks to give preference, or

for any other purpose, in the STAR and CHIP procurement or in any man-

aged care procurement ever (8 RR 180-85; 5 RR 197; 6 RR 42-44). Worse

yet, as HHSC staff unequivocally testified, the agency—to this day—has still

not followed through on its commitment to actually finalize and operation-

alize the statutorily-required benchmarks mandated by the legislature,

16
despite being fully aware of its active noncompliance with the statutory duty

to do so (8 RR 180-85). As such, the failure to develop and implement the

statutorily-required benchmarks in any managed care procurement con-

ducted since 2011 has caused, and will continue to cause, Wellpoint harm,

while impairing the integrity of the affected procurements—both closed and

open alike (e.g., STAR Health, STAR+PLUS, STAR and CHIP, and STAR

Kids)—and their resulting awards and proposed awards (CR 5877-79; 8 RR

181; 5 RR 77-78, 255).

The trial court likewise found that the Commissioner’s intended award

of “mandatory” CHIP contracts violated Texas law, including Government

Code § 533.004(a) [recently recodified] and Health and Safety Code

§§ 62.055 and 62.155 (8 RR 227-28; CR 5878). In short, as argued in Well-

point’s administrative protests and appeals, Texas law requires that “man-

datory” contract awards be made under the Medicaid program to certain

MCOs meeting statutorily-defined requirements, but requires that contracts

for other programs, such as CHIP—which is not a Medicaid program (5 RR

111; 6 RR 50)—be awarded on a best value basis through competitive pro-

curements (P. Ex. 44; P. Ex. 160). The RFP, however, provided that any MCO

who was awarded a STAR contract for a given service area would automati-

cally receive a CHIP contract for the same service area as well—meaning that

17
CHIP contracts would not be awarded on the basis of best value in a compet-

itive procurement, as Texas law requires, but would instead be automatically

given to “mandatory” Medicaid MCOs who did not qualify for such CHIP

contracts on the basis of score. As the evidence before the trial court showed,

the Commissioner’s own HHSC staff recognized the problem and even pre-

pared an addendum to “moot” this fatal flaw as identified in Wellpoint’s

specifications protest (P. Ex. 46; P. Ex. 266). The Commissioner, neverthe-

less, chose to move forward with the RFP as published, resulting in intended

CHIP contracts that would not be awarded based on competitive procure-

ment, including the proposed award of a CHIP contract in the Dallas service

area—a major metropolitan service area with one of Texas’s largest popula-

tions of CHIP beneficiaries—to the absolute lowest scored MCO (6 RR 49-

59; P. Ex. 160 (087-88, 105-07]). As the Commissioner herself admitted, she

intended to give a CHIP contract to any bidder that would receive a manda-

tory Medicaid contract, without regard for how the bidder scored under the

RFP (6 RR 157).

In addition, as discussed infra and in the other plaintiffs-appellees’

briefing, the trial court found that the Commissioner had violated Texas law,

and thus acted ultra vires, in at least eleven other ways (CR 5877-78).

18
In a single order supported by extensive findings, the trial court denied

the Commissioner’s plea to the jurisdiction and granted plaintiffs-appellees

a temporary injunction based on the Commissioner’s thirteen separate ultra

vires acts—any one of which the court found to be independently sufficient

to support enjoining the Commissioner’s present and future violations of law

(CR 5875-84). The injunction enjoins her from “awarding, signing, entering

into, executing, implementing, or otherwise taking action to effectuate or

perform any contracts resulting from or in connection with” the STAR and

CHIP procurement and the pending STAR Kids procurement “or to further

the procurement or contracting processes” for them in any regard (CR 5883).

The Commissioner now appeals (CR 5957-60).

19
Summary of Argument

This lawsuit is designed to ensure that the Executive Commissioner of

the Texas Health and Human Services Commission, the state agency respon-

sible for administering publicly-funded healthcare programs in Texas, does

not continue to violate the law or exceed her legal authority when it comes to

procuring managed care organizations for these programs.

The Commissioner’s actions in the STAR and CHIP procurement—and

the pending STAR Kids procurement—are part of a continuing pattern of un-

lawful behavior that deprives vulnerable populations of meaningful MCO

choices by replacing proven, high-performing plans like Wellpoint with un-

derqualified MCOs. Wellpoint participated in the procurement, and though

the Commissioner announced an intent to award Wellpoint STAR and CHIP

contracts for certain service areas, Wellpoint incurred injury as a result of

the Commissioner’s unlawful behavior, which the Commissioner has indi-

cated she will continue absent judicial intervention requiring her to comply

with the law going forward.

Wellpoint filed this lawsuit seeking prospective injunctive and declar-

atory relief to compel the Commissioner’s future compliance with the law,

and sought a temporary injunction to prevent the Commissioner from pro-

ceeding further with the STAR and CHIP procurement and the pending

20
STAR Kids procurement upon final disposition of the merits. The Commis-

sioner filed a plea to the jurisdiction. The trial court denied the plea and is-

sued a temporary injunction, prompting this appeal.

The trial court correctly denied the plea to the jurisdiction because

Wellpoint has pleaded viable claims that the Commissioner has acted and

continues to act ultra vires. To begin with, the court properly concluded that

the claims were ripe. The parties have a present controversy: Wellpoint con-

tends there were ultra vires acts, the Commissioner disagrees and actively

seeks to proceed with the illegal procurement. And Wellpoint is threatened

with imminent injury: at minimum, it is at risk of losing employees, income,

and its network of healthcare providers. Its claims to remedy that injury with

prospective relief are ripe.

Wellpoint’s claims are ultra vires claims—i.e., that the Commissioner

has acted and continues to act beyond the powers the legislature granted

while also failing to comply with law—and thus, Wellpoint had no duty to

exhaust administrative remedies because there’s no such thing for ultra vires

acts. A state agency is not the judge of whether it has acted without legal au-

thority or failed to follow the law.

The trial court also properly issued a temporary injunction. The record

contains evidence of the Commissioner’s ultra vires acts violating Texas

21
statutes, including the Government Code and Health and Safety Code provi-

sions, constitutional provisions, and administrative rules, including, for ex-

ample, the following: (i) wrongly applying standards applicable to the regu-

latory scheme for mandatory Medicaid contracts in awarding non-Medicaid

CHIP contracts, (ii) failing to develop the quality-of-care and cost-efficiency

benchmarks the legislature statutorily-required be developed over a decade

ago for use in managed care procurements, including the STAR and CHIP

procurement and the pending STAR Kids procurement, (iii) failing to give

preference to MCOs in awarding managed care contracts based on those

benchmarks, and (iv) failing to afford a meaningful protest process for re-

solving procurement-related issues.

There was some evidence of each of these ultra vires acts, so the injunc-

tion’s findings of likelihood of success have support in the record—and as a

result—there being at least some record evidence of at least one ultra vires

act—the court properly denied the Commissioner’s plea to the jurisdiction.

Moreover, the equities did not favor the Commissioner: she had extended

the current STAR and CHIP contracts to manage these healthcare pro-

grams—including the ones Wellpoint was, and still is, operating under—and

thus could not show that an injunction delaying the present STAR and CHIP

22
procurement and the official awarding of the proposed contracts would harm

Texas program beneficiaries through interrupted or inadequate healthcare.

The injunction was in proper form, too, in compliance with Rule 683.

It states reasons for its issuance, specified the legal authorities violated, ex-

plained the acts enjoined, and made findings of irreparable injury. With an

ultra vires claim alleging failure to comply with a mandatory duty, such as a

duty statutorily imposed by the legislature—specifying the legal authority

imposing the duty, and stating the failure, is about all one can say.

Finally, there’s no merit to the Commissioner’s complaint that she was

treated unfairly when the trial court excluded certain exhibits at the hearing.

The Commissioner has not shown that the documents were pertinent to each

of the ultra vires violations the trial court found—which is to say that exclud-

ing the exhibits, even if it were an abuse of discretion, could only be harmless

error. Nor did the Commissioner proffer any witness with personal

knowledge of them at the hearing, or produce a representative prepared to

testify about them during depositions. Under these circumstances, exclusion

of the exhibits was proper, and in any event harmless.

23
Argument

I. THE TRIAL COURT HAS SUBJECT MATTER JURISDICTION.

A. Wellpoint’s claims are ripe.
This Court reviews the trial court’s disposition of the Commissioner’s

plea to the jurisdiction de novo, considering the pleadings, factual assertions,

and all relevant evidence in the record. City of Hous. v. Hous. Mun. Emps.

Pension Sys., 549 S.W.3d 566, 575 (Tex. 2018). “Looking at the plaintiff’s

intent, pleadings are construed liberally in favor of the plaintiff to determine

whether the facts alleged affirmatively demonstrate the court’s jurisdiction

to hear the matter.” Id.

In challenging the trial court’s subject matter jurisdiction, the Com-

missioner contends that Wellpoint’s claims are not ripe. As the Commis-

sioner explains, a claim is ripe if “an injury has occurred or is likely to occur.”

Brief for Appellant 12 (quoting Point Energy Partners Permian LLC v. MRC

Permian Co., 669 S.W.3d 796, 812 (Tex. 2023)). The Commissioner nowhere

challenges the specific findings in the temporary injunction order that an in-

jury has occurred to Wellpoint and other injuries are likely to occur. The in-

junction makes these findings, among others, as to Wellpoint:

Wellpoint has already suffered and will continue to suffer the
poaching of its highly trained employees by other MCOs. . . .
Wellpoint must continue to provide uninterrupted healthcare to

24
its members, and its ability to do so will be substantially jeopard-
ized if there are key staff vacancies.
Wellpoint has already suffered and will continue to suffer diffi-
culty retaining its existing, robust provider network in the im-
pacted service areas. . . .
In addition, the harm to Wellpoint is imminent as Defendant
does not intend to correct her unlawful course of action for future
procurements or the ongoing STAR Kids RFP.
(CR 5881). The Commissioner asserts an inadequate, multifarious, general

challenge to all of the “irreparable harm” findings, vaguely claiming: “there

is no evidence that Plaintiffs have suffered harm.” Brief for Appellant 46. But

the thrust of that argument is not that the findings lack evidentiary support,

but rather that they are immaterial. According to the Commissioner, the

MCOs had to show that “but for the alleged deficiencies in the procurement,

they would be exposed to an adverse outcome they would not otherwise

face.” Id. There’s “no evidence” to support such findings, the Commissioner

argues, so there’s no basis for any “irreparable injury” finding.

That’s too narrow a view of the matter: it’s a merits argument that

there’s no causation. It’s not a “no injury” argument as the Commissioner

attempts to recast it. As the Supreme Court of Texas has explained, “a plain-

tiff has standing when it is personally aggrieved, regardless of whether it is

acting with legal authority. . . .” See Coastal Liquids Transp. LP v. Harris

Cty. Appraisal Dist., 46 S.W.3d 880, 884 (Tex. 2001) (quoting Nootsie, Ltd.

25
v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996)). A

plaintiff does not lack standing simply because another legal principle may

prevent it from prevailing on the merits. DaimlerChrysler Corp. v. Inman,

252 S.W.3d 299, 305 (Tex. 2008). The inquiry “in no way depends on the

merits of the [plaintiff’s] contention that particular conduct is illegal.” An-

drade v. NAACP of Austin, 345 S.W.3d 1, 7 (Tex. 2011).

A claim is ripe if it involves a real controversy, not a hypothetical set of

facts. Perry v. Del Rio, 66 S.W.3d 239, 249 (Tex. 2001). The Commissioner

announced her intent to award contracts based on MCO proposals received

(P. Ex. 95). That is not hypothetical. Although the procurement process and

contract execution is stayed by the parties’ Rule 6.6 agreement, with the pro-

test appeals still pending, the Commissioner argues that she did not act ultra

vires—so ipso facto the pending protest appeals have no merit (CR 4201-10).

She argues that “these plaintiffs have not met their burden on proving ultra

vires actions” (8 RR 215-23). That’s a real, i.e., not hypothetical, controversy,

and one the Commissioner has confirmed in her principal brief, where she

disputes that she abused her discretion or engaged in ultra vires acts under

the various statutes at issue. Brief for Appellant 17-38.

Moreover, Wellpoint has incurred injury resulting from at least the fol-

lowing: (a) the Commissioner’s unauthorized application, in the

26
procurement of CHIP services, of the statutory scheme for awarding manda-

tory STAR/Medicaid contracts, (b) the failure to develop statutorily-required

quality-of-care and cost-efficiency benchmarks, (c) the failure to give con-

tract award preference for meeting quality-of-care and cost-efficiency bench-

marks, and (d) the failure to afford a meaningful protest process.

Recognizing the fundamental flaw in the RFP’s specifications from the

unauthorized application to CHIP contracts of the STAR regulatory scheme

for awarding mandatory Medicaid contracts (even though that scheme does

not apply to a non-Medicaid program like CHIP), Wellpoint’s specifications

protest challenged upfront the de facto mandatory contract award require-

ment on CHIP contracts, which illegally ignored CHIP-specific laws, rules,

and program requirements (P. Ex. 44). The Commissioner nevertheless re-

fused to take any corrective action whatsoever, forcing Wellpoint to expend

substantial time and resources in the process.

Wellpoint further suffered injury from the Commissioner’s failure to

comport her actions with statutes limiting her discretion. By ignoring the

legislative mandate to develop the quality-of-care and cost-efficiency bench-

marks, the Commissioner’s actions denied Wellpoint contract award prefer-

ence statutorily guaranteed under Government Code § 543A.0052(d) (recod-

ifying § 536.052(d)) to an MCO that offers a managed care plan that meets

27
the benchmarks (8 RR 82-83, 180-81, 184-85). Wellpoint most assuredly

would have met the qualifications, given it was one of the highest-ranking

MCOs evaluated in the procurement, scoring substantially higher than the

majority of the MCOs, especially, the hospital-district MCOs to which the

Commissioner proposes to award unauthorized mandatory CHIP contracts.

The salient point, however, is that Wellpoint was denied the opportunity to

meet the benchmarks, and thus, obtain the preference, despite the legisla-

ture’s mandate to the Commissioner to develop the benchmarks and give

preference to MCOs in awarding managed care contracts like the STAR and

CHIP contracts at issue based on those benchmarks. In addition, the Com-

missioner’s failure to provide Wellpoint with relevant information about the

STAR and CHIP procurement prior to the protest deadline prevented Well-

point from using such information in documenting its protest of the intended

contract awards—Wellpoint “could not get the documentation needed to

support [its] case”—injury confirmed by Wellpoint’s inability to obtain doc-

uments before the protest deadline through a timely request under the Public

Information Act (“PIA”), Tex. Gov’t Code §§ 552.001 et seq., and by the Com-

missioner’s refusal to consider any protest supplements as untimely (5 RR

153-54; 8 RR 90-91; P. Ex. 159 [n.1]). Given these facts and the evidence in

the record, Wellpoint’s claims are ripe.

28
B. Texas courts have not made exhausting administrative rem-
edies a condition precedent to filing ultra vires claims.
There is no exhaustion of remedies requirement applicable here. Texas

law does not require a claimant to exhaust administrative remedies before

filing ultra vires claims. See, e.g., Kilgore ISD v. Axberg, 535 S.W.3d 21, 34

(Tex. App.—Texarkana 2017, no pet.) (exception exists “when an administra-

tive agency purports to act outside its statutory powers”); Brennan v. City of

Willow Park, 376 S.W.3d 910, 921-22 (Tex. App.—Fort Worth 2012, pet. de-

nied) (parties need not pursue a protest if alleging agency acted ultra vires);

Strayhorn v. Lexington Ins. Co., 128 S.W.3d 772, 780 (Tex. App.—Austin

2004), aff’d, 209 S.W.3d 83 (Tex. 2006). This is especially true with regard

to Wellpoint’s ultra vires challenge to the constitutionally-infirm protest pro-

cess. Cf. Axon Enters Inc. v. FTC, 598 U.S. 175, 191-96 (2023) (holding plain-

tiff is injured if it has to assert first, before agency, argument that the agency’s

decision-making process is constitutionally defective).

The Commissioner cites no contrary case in arguing that Wellpoint had

to pursue (or complete) a protest of the intended contract awards before fil-

ing this suit. Brief for Appellant 14-16. For example, the plaintiff in Riner v.

City of Hunters Creek, 403 S.W.3d 919 (Tex. App.—Houston [14th Dist.]

2013, no pet.), challenged agency action but didn’t plead it was ultra vires:

“The gravamen of the Riners’ complaint is that the Commission

29
misconstrued an ordinance concerning lot size by failing to include the area

under the Riners’ proposed public-street easement when calculating the size

of the three lots that would be created by their proposed subdivision.” Id. at

922-23. That’s an allegation of mere error.

Because the Commissioner surely does not mean to argue that she has

exclusive jurisdiction to decide whether she’s acting ultra vires, this argu-

ment is just another disguised merits argument, to-wit: Wellpoint has no

valid ultra vires claim to begin with because its claims are really disputes that

the Commissioner “has incorrectly applied the law governing the subject of

its dispute.” Brief for Appellant 15. Here, Wellpoint plainly contends that the

Commissioner acted beyond her powers. Whether the Commissioner did so

because she bristled at the legislative mandates imposed on her doesn’t mat-

ter. Her actions were ultra vires regardless, and Wellpoint did not need per-

mission from her or the legislature to sue the Commissioner for such actions.

See Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853

(Tex. 2002) (“Private parties may seek declaratory relief against state offi-

cials who allegedly act without legal or statutory authority.”); Fed. Sign v.

Tex. S. Univ., 951 S.W.2d 401, 404 (Tex. 1997) (“A private litigant does not

need legislative permission to sue the State for a state official’s violations of

state law.”).

30
To be sure, in its protests filed with the Commissioner, Wellpoint has

raised many ultra vires issues that Wellpoint pleads in its petition. That’s no

concession that she has exclusive jurisdiction over those matters; it’s just a

concession that she has power to correct course and start acting within the

bounds of her legal authority if she so chooses, and self-correction is far more

efficient for all involved than litigation.

Moreover, even if there were any such exhaustion of remedies require-

ment, Wellpoint satisfied it because Wellpoint filed suit after the Commis-

sioner unequivocally rejected Wellpoint’s attempts to get the Commissioner

to follow the law. After the STAR and CHIP RFP was issued on December 7,

2022, Wellpoint recognized that the RFP’s specifications violated the law be-

cause they sought to apply the STAR regulatory scheme for awarding man-

datory Medicaid contracts to CHIP contracts even though that scheme does

not apply to non-Medicaid programs like CHIP; Wellpoint thus filed a spec-

ifications protest to the solicitation’s terms on February 14, 2023 (8 RR 70-

72; P. Ex. 44). Unable to wait on a decision on its specifications protest before

the RFP’s proposal submission deadline came due, Wellpoint timely submit-

ted its proposal on March 3, 2023 (P. Ex. 38; P. Ex. 236). HHSC’s Deputy

Executive Commissioner denied Wellpoint’s specifications protest as prem-

ature, eleven days later, without considering the merits of Wellpoint’s

31
arguments, claiming instead that “the resulting adverse impact to [Well-

point] . . . would only be speculative” (P. Ex. 160 [087-88]; 5 RR 111-19); and

the Commissioner subsequently denied Wellpoint’s appeal on June 2, 2023,

stating that she would not “separat[e] STAR & CHIP (based on a speculative

injury that may not occur)” and that her decision was “HHSC’s final admin-

istrative action regarding” Wellpoint’s specifications protest (P. Ex. 160

[105-07]; 8 RR 70-79).

Wellpoint thus cannot reasonably be faulted for filing suit before the

Commissioner (again) denies protest appeals raising the same issues—espe-

cially given she denied Wellpoint any meaningful opportunity to provide new

evidence or use information about the procurement gained through PIA re-

quests (8 RR 70, 79-80, 104-05; 5 RR 152-54; P. Ex. 160). She could other-

wise undermine any chance for a judicial remedy addressing her ongoing ul-

tra vires acts—a tactic she (or her predecessors) tried to use in earlier man-

aged care procurements. See Wilson v. Cmty. Health Choice Tex., Inc., 607

S.W.3d 843, 848 (Tex. App.—Austin 2020, pet. denied) (noting Commis-

sioner’s argument that claims seeking to bar her from awarding contracts

“had become moot because the commissioner had . . . executed and officially

awarded the contracts”).

32
The Commissioner also asserts that Wellpoint waived its ultra vires

claims because it submitted a bid and thereby “acceded to the terms of the

solicitation.” Brief for Appellant 15-16. But waiver requires relinquishment

of a known right. See, e.g., Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex.

2003) (emphasis added). Before a notice of intent to award issued, and given

the Commissioner’s position that she has almost unlimited discretion in a

procurement, Wellpoint could not possibly have known for certain that the

Commissioner would act ultra vires in every respect the trial court found. For

example, only after the announced intent to award contracts (and the subse-

quent testimony HHSC staff gave to the Legislature on June 4, 2024) could

Wellpoint have known that the Commissioner does not use quality rubrics

and measurements, or past performance of MCOs generally, in this current

procurement (8 RR 98-104; P. Ex. 148). Nor could Wellpoint have known

that, despite working with existing MCOs on quality initiatives and perfor-

mance metrics, the Commissioner does not account for an MCO’s success in

implementing quality initiatives or an MCO’s performance metrics in this

procurement (id.). There was no forewarning about such acts. Wellpoint

acted promptly in filing this lawsuit and did nothing inconsistent with pur-

suing its ultra vires claims here.

33
The Commissioner’s exhaustion argument also defeats her waiver ar-

gument. Wellpoint submitted its proposal subject to its pending specifica-

tions protest, and did not withdraw it (8 RR 70-72; P. Ex. 44; P. Ex. 38; P. Ex.

236). After HHSC’s Deputy Executive Commissioner denied the specifica-

tions protest, Wellpoint appealed the denial to the Commissioner, while its

RFP proposal was still under consideration, even noting in its appeal that the

failure to correct the RFP’s flaws prior to going through the procurement

process would invariably lead to protests on the same basis thereafter (5 RR

111-19; 8 RR 70-79; P. Ex. 160 [089-104]).

Moreover, the Commissioner’s waiver argument is little more than a

Potemkin village meant to hide the duplicity of her argument. She and her

staff perfunctorily dismissed Wellpoint’s challenges to the solicitation’s

terms but at no point informed Wellpoint that any issue raised in its specifi-

cations protest or appeal (or any challenge to the Commissioner’s ultra vires

acts for that matter) was waived because of its participation in the procure-

ment. Furthermore, the Commissioner explained that, under her rules, to

prevail in a protest, a protestant must describe the “resulting adverse impact

to the protestant”—1 Tex. Admin. Code § 391.305(c)(3)—and because she

had not awarded contracts yet, “a speculative injury that may not occur” to

Wellpoint was not enough (P. Ex. 160 [105-07]). So the protest (and appeal)

34
she now says Wellpoint should have brought before participating in the pro-

curement would have been—and in fact was—denied as premature (5 RR 111-

19; 8 RR 70-79; (P. Ex. 160 [087-88, 105-07]):

Q. And you denied [Wellpoint’s specifications protest
(P. Ex. 44)] effectively as premature because it was before the
contracts had been awarded; is that right?
A. Because there was no adverse effect shown in the – in the
protest, which is a requirement under the Administrative Code.
Q. And if I understand correctly, you felt there wasn’t an ad-
verse effect because they didn’t know if they were going to win
or lose yet; correct?
A. Correct.
(5 RR 113). That’s gamesmanship. Under the Commissioner’s version of her

own rules: heads, she wins; tails, Wellpoint loses. Because her own rules pre-

cluded a viable specifications protest, she has waived arguments—and for-

feited any credibility when arguing—that Wellpoint had to assert, in an ad-

ministrative protest, the challenges she denied as premature when Wellpoint

raised them in its specifications protest.

II. THE TRIAL COURT PROPERLY ENJOINED THE COMMISSIONER.
This Court reviews an order granting a temporary injunction for an

abuse of discretion. See Tex. Educ. Agency v. Houston ISD, 660 S.W.3d 108,

116 (Tex. 2023). Under this standard, this Court will defer to the trial court’s

findings if evidence supports them but reviews legal determinations de novo.

35
Haedge v. Cent. Tex. Cattlemen’s Ass’n, 603 S.W.3d 824, 827 (Tex. 2020).

So if some evidence reasonably supports the trial court’s decision, then even

if the evidence is conflicting the trial court did not abuse its discretion. See,

e.g., Henry v. Cox, 520 S.W.3d 28, 33-34 (Tex. 2017).

As a threshold matter, this Court should affirm the temporary injunc-

tion on the ground that it was a proper exercise of the trial court’s power to

enforce its jurisdiction over the subject matter of the lawsuit. District courts

“have the power to issue writs necessary to enforce their jurisdiction.” Tex.

Const. art. V, § 8. “A judge of a district court may . . . grant writs of . . . in-

junction . . . and all other writs necessary to the enforcement of the court’s

jurisdiction.” Tex. Gov’t Code § 24.011. Assuming the trial court had jurisdic-

tion of this suit, it could issue an injunction to protect that jurisdiction. Win-

frey v. Chandler, 318 S.W.2d 59, 61 (Tex. 1958).

In the trial court, the plaintiffs-appellees emphasized the urgent need

for an order promptly after the conclusion of the hearing (Supp. RR 31-35),

arguing in particular that injunctive relief was needed to enforce the trial

court’s jurisdiction over the subject matter of their claims—specifically, to

keep the Commissioner from executing contracts and potentially mooting

the claims:

Following a similar past procurement for another Medicaid pro-
gram, Defendant’s predecessor quickly and summarily executed

36
allegedly unlawful contracts and then argued that any challenge
to their procurement was moot. See Wilson v. Cmty. Health
Choice Tex., Inc., 607 S.W.3d 843, 848 (Tex. App.—Austin 2020,
pet. denied). Plaintiffs seek immediate relief from this Court to
forestall similar gamesmanship, avoid considerable harm to
themselves and their communities, and ensure that the State’s
largest and most important procurements are conducted con-
sistent with Texas law.
(CR 3126).

The trial court found that the Commissioner “will act ultra vires in

awarding, executing, and implementing the contracts arising out of” the RFP

(CR 5876). The Commissioner challenged that the acts were ultra vires; she

did not challenge the finding that she would indeed take action to execute

and implement the proposed contracts she had announced an intent to

award. Brief for Appellant 17-38. This case is like Wilson v. Community

Health Choice Texas, where “the commissioner filed a ‘supplemental plea to

the jurisdiction’ asserting that Community Health’s claims, which sought to

prevent the commissioner from awarding the contracts in violation of section

533.004, had become moot because the commissioner had . . . executed and

officially awarded the contracts.” 607 S.W.3d at 848. If the Commissioner

were to do the same here, that could potentially render the prospective relief

Wellpoint currently seeks improperly retrospective—namely, an order en-

joining the Commissioner from engaging in further ultra vires acts—thereby

eliminating a substantial part of the controversy between the parties. See

37
Hous. Mun. Emps. Pension Sys., 549 S.W.3d at 576 (“If the relief is injunc-

tive, then whether it is retrospective or prospective is measured from the date

of injunction.” (citation omitted)).

The trial court’s unchallenged finding that the Commissioner will do

the same in the present case as the Commissioner attempted to do in Wilson

supports the injunction as one necessary to enforce the trial court’s jurisdic-

tion.

This Court may affirm a judgment on grounds raised in the trial court

but not addressed by that court. See City of Austin v. Whittington, 384

S.W.3d 766, 789 (Tex. 2012). The Commissioner premised her argument on

the standard for an injunction to prevent harm to the parties by maintaining

the status quo. Brief for Appellant 16 The injunction is properly upheld in

that regard; as discussed infra, it satisfied the standards for such an injunc-

tion. But the injunction is properly upheld on this alternate basis (as one en-

forcing the trial court’s jurisdiction) as well, so this Court should also affirm

it on that basis.

A. Wellpoint will likely prevail on its ultra vires claims.

i. Evidence supports findings that the Commissioner exceeded her
powers by acting without legal authority.
Government officials acting in their official capacity enjoy the same im-

munity as the governmental unit unless the official has engaged in ultra vires

38
conduct. See, e.g., Franka v. Velasquez, 332 S.W.3d 367, 382–83 (Tex.

2011); City of El Paso v. Heinrich, 284 S.W.3d 366, 380 (Tex. 2009). If an

official acts outside the law, that official is not acting on behalf of the state

and the state’s immunity does not extend to such acts. Phillips v. McNeill,

635 S.W.3d 620, 628 (Tex. 2021); see also Hous. Mun. Emps. Pension Sys.,

549 S.W.3d at 576 (“Even if a governmental entity’s immunity has not been

waived by the Legislature, a claim may be brought against a governmental

official if the official engages in ultra vires conduct.” (citation omitted)).

In general, ultra vires action is either: (1) an act without legal authority,

i.e., where an official exceeds the bounds of her granted authority or if her

act conflicts with the law itself, or (2) a failure to perform a purely ministerial

act. See Schroeder v. Escalera Ranch Owners’ Ass’n, Inc., 646 S.W.3d 329,

332 (Tex. 2022); Wilson, 607 S.W.3d at 851. Such “ministerial acts” are those

“where the law prescribes and defines the duties to be performed with such

precision and certainty as to leave nothing to the exercise of discretion or

judgment.” Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017). “Conversely,

‘discretionary acts’ are those that ‘require the exercise of judgment and per-

sonal deliberation.’” Hous. Mun. Emps. Pension Sys., 549 S.W.3d at 576.

Use of the word “shall” in a statute “‘evidences the mandatory nature

of the duty imposed.’” Id. (quoting Sw. Bell Telephone, L.P. v. Emmett, 459

39
S.W.3d 578, 588 (Tex. 2015)). Accordingly, a statute providing that a govern-

ment official “shall” perform an act “imposes a duty” on that official to per-

form that act. See Tex. Gov’t Code § 311.016; see also ACT, Black’s Law Dic-

tionary (12th ed. 2024) (“If the act is mandatory, it is also termed ministerial

duty.”). It doesn’t matter if discretion exists in performance of the duty—as

with trial court discretion in drafting a judgment the court has a ministerial

duty to sign. Wellpoint complains about the complete failure to execute, not

the discretion allowed within that execution. See, e.g., Hous. Mun. Emps.

Pension Sys., 549 S.W.3d at 582 (“The controversy here is not about how the

City must make the payments, only whether it must. The statute leaves no

room for the City to exercise judgment regarding whether the payments must

be made.” (citations omitted)).

As discussed above, the Commissioner acted without legal authority by

applying an unauthorized mandatory award requirement to CHIP contracts

based on the STAR regulatory scheme for awarding mandatory Medicaid

contracts. The RFP specifications allowed HHSC to evaluate, score, and se-

lect MCOs for a contract award for both STAR and CHIP services by consid-

ering only STAR-specific laws, rules, and program requirements and without

regard for CHIP-specific laws, rules, and program requirements— which are

separate and distinct from STAR’s. Wellpoint’s specifications protest alerted

40
the Commissioner early on that awarding CHIP contracts under the STAR

regulatory scheme for awarding mandatory Medicaid contracts pursuant to

Government Code § 533.004 (recodified as § 540.0206) would be an ultra

vires act because the statute did not authorize the Commissioner to award

mandatory contracts for non-Medicaid programs like CHIP (P. Ex. 44).

Despite having the obligation to review Wellpoint’s specifications pro-

test, and the opportunity and wherewithal to prepare an addendum that the

Commissioner’s own HHSC staff acknowledged would resolve the fatal flaw

in the solicitation’s terms Wellpoint had identified, the Commissioner de-

clined to implement any correction whatsoever (P. Ex. 46; P. Ex. 266; 5 RR

114-17). The Commissioner instead chose to trudge forward, ignoring the

limitations on her discretion in awarding CHIP contracts and Wellpoint’s

protestations that doing so would result in an unlawful procurement and

contract awards injuring Wellpoint and Texas citizens and taxpayers.

As Wellpoint had feared (and warned would occur in its specifications

protest), the result of the Commissioner’s unauthorized application of the

regulatory scheme for awarding mandatory Medicaid contracts under Gov-

ernment Code § 533.004 (recodified as § 540.0206) to CHIP services was

proposed CHIP contract awards that were not based on best value as re-

quired by Government Code § 2155.144. The consequences of the

41
Commissioner’s failure to adhere to Government Code § 2155.144 and mis-

application of § 533.004 (recodified as § 540.0206)—such as the proposed

award of a mandatory CHIP contract in the Dallas service area, which has

one of Texas’s largest populations of CHIP beneficiaries, to the lowest ranked

MCO, i.e., the organization evaluated as offering the least value to HHSC—

are especially egregious given the Commissioner’s intended contract awards

would permit low-scoring and underqualified MCOs to serve one of Texas’s

most vulnerable citizen populations—low-income children who cannot qual-

ify for Medicaid or otherwise afford health insurance.

The Commissioner argues – incorrectly – that despite the lack of value

these MCOs bring to HHSC, her authority under Health and Safety Code

§ 62.053(3) to “coordinate” CHIP, a non-Medicaid program, with the Medi-

caid program (i.e., STAR) permitted this action. Brief for Appellant 38. “Co-

ordinating,” however, does not mean changing—or eliminating—the sub-

stantive statutory requirements of CHIP. See Cities of Corpus Christi v. Pub-

lic Utility Comm’n of Tex., 188 S.W.3d 681, 689-90 (Tex. App.—Austin 2005,

pet. denied) (“[E]ven if the legislature intends that an agency created to cen-

tralize expertise in a certain regulatory area ‘be given a large degree of lati-

tude in the methods it uses to accomplish its regulatory function,’ an agency

may not, in the guise of implied powers, exercise what is effectively a new

42
power, or a power contrary to a statute, on the theory that such exercise is

expedient for the agency’s purpose, nor may it contravene specific statutory

language, run counter to the general objectives of the statute, or impose ad-

ditional burdens, conditions, or restrictions in excess of or inconsistent with

the relevant statutory provisions.” (citations omitted)).

Regardless, there was evidence demonstrating that, by bundling STAR

and CHIP into a single procurement that conducts evaluations and deter-

mines contract awards in a manner that results in awarding a mandatory

CHIP contract, regardless of an MCO’s relative ranking in the evaluations,

the Commissioner did not administer a competitive procurement process for

CHIP contracts on the basis of best value as required by the governing law,

including Health and Safety Code §§ 62.055 and 62.155. Under these circum-

stances, finding Wellpoint asserted valid ultra vires claims and granting the

temporary injunction was not an abuse of discretion.

ii. Evidence supports findings that the Commissioner exceeded her
powers by ignoring statutes requiring specified actions.
Wellpoint has valid ultra vires claims if the governing law required that

the Commissioner “shall” do something and she ignored that mandate. See,

e.g., Hous. Mun. Emps. Pension Sys., 549 S.W.3d at 582 (“Article 6243h

states that the City ‘shall provide full and timely information’ to the Pension

System and ‘shall make contributions’ to the Pension System. . . . The statute

43
leaves no room for the City to exercise judgment regarding whether the pay-

ments must be made. Accordingly we hold that article 6243h creates manda-

tory duties and defines them with sufficient clarity to support the Pension

System’s ultra vires and mandamus claims.” (internal citations omitted));

Emmett, 459 S.W.3d at 588 (observing that the “use of the word ‘shall’ evi-

dences the mandatory nature of the duty imposed” by the statute).

This occurred in at least three regards: (a) failing to develop statuto-

rily-required quality-of-care and cost-efficiency benchmarks, (b) failing to

give contract award preference for meeting the statutorily-required bench-

marks, and (c) failing to afford a meaningful protest process. Because there

was some evidence of each failure, the trial court did not abuse its discretion

in finding that Wellpoint asserted valid ultra vires claims. See, e.g., State ex

rel. Office of Att’y Gen. of Tex. v. City of San Marcos, 714 S.W.3d 224, 239-

41 (Tex. App. [15th Dist.] 2025, pet. denied) (holding that fact issues pre-

cluded dismissal of claims that city council, mayor, and police chief acted

ultra vires in violating Texas Local Government Code § 370.003).

1. Evidence shows the Commissioner failed to develop quality-of-care
and cost-efficiency benchmarks.
Since 2011, Government Code § 536.052 (recodified as § 543A.0052),

has required the Commissioner to develop quality-of-care and cost-efficiency

benchmarks. The recodified statute states: “The commission shall develop

44
quality-of-care and cost-efficiency benchmarks, including benchmarks

based on a managed care organization’s performance with respect to: (1) re-

ducing potentially preventable events; and (2) containing the growth rate of

health care costs.” Id. § 543A.0052(b) (recodifying § 536.052(b) and incor-

porating non-substantive revisions) (emphasis added). The Commissioner

has no discretion to refuse to develop the benchmarks; by using the word

“shall” the statute imposed a mandatory duty, and leaves no room for the

Commissioner to exercise judgment regarding whether to develop the bench-

marks. Id. § 311.016(2) (“‘Shall’ imposes a duty.”); see also Hous. Mun.

Emps. Pension Sys., 549 S.W.3d at 582; Emmett, 459 S.W.3d at 588. Devel-

oping those benchmarks was, and still is, a ministerial act she must perform.

None of this is in dispute. Brief for Appellant 28.

Despite the Commissioner’s attempts to downplay her violation of this

statute as if it were a mere matter of timing, it is anything but. The Commis-

sioner has failed to comply with her statutory duty for over a decade. Worse

yet, as part of the 2021 General Appropriations Act, S.B. No. 1, 87th Leg., ch.

1053, R.S. (2021), the legislature, through enactment of “Rider 20,” made

HHSC’s appropriations for fiscal year 2023 contingent on HHSC developing

the required benchmarks by September 1, 2022 (P. Ex. 34). Despite taking

the appropriated funds, HHSC’s compliance with the statute remained

45
nonexistent. As the Commissioner’s HHSC staff conceded, the agency has

not done, and is not currently doing, anything to develop these benchmarks

for use in any managed care procurement (8 RR 178-85; 5 RR 197; 6 RR 42-

44).

An official or agency acts ultra vires if it “failed to perform a ministerial

duty.” Matzen v. McLane, 659 S.W.3d 381, 388 (Tex. 2021). Breach of the

duty here—failure to develop the benchmarks—is ultra vires, as the trial court

found in denying the Commissioner’s plea and granting the injunction.

2. Evidence shows the Commissioner failed to give contract award
preference for meeting quality-of-care and cost-efficiency bench-
marks.
The Commissioner does not seriously dispute that she has ignored her

statutory duty to develop quality-of-care and cost-efficiency benchmarks. In-

stead, the Commissioner argues – incorrectly – that breach of this duty

doesn’t matter because in awarding contracts to MCOs the statute affords the

Commissioner two choices: either (i) give preference to an MCO that offers a

managed care plan implementing quality initiatives as determined by HHSC,

or (ii) give preference to an MCO that offers a managed care plan that meets

the quality-of-care and cost-efficiency benchmarks as developed by HHSC.

Brief for Appellant 28. As the Commissioner explains it, she could choose to

forego the benchmark route entirely and go the “quality initiatives” route.

46
The statute reads otherwise. The statute gives the choice to the MCO,

not HHSC. Specifically, the statute provides:

In awarding contracts to managed care organizations under the
child health plan program and Medicaid, the commission shall,
in addition to considerations under Section 533.003 [recodified
in relevant part, as § 540.0204] of this code and Section 62.155,
Health and Safety Code, give preference to an organization that
offers a managed care plan that successfully implements quality
initiatives under Subsection (a) as determined by the commis-
sion based on data or other evidence provided by the organiza-
tion or meets quality of care and cost-efficiency benchmarks un-
der Subsection (b).
Tex. Gov’t Code § 536.052(d) (recodified as § 543A.0052(d)) (emphasis

added); see also id. § 543A.0001(11) (“‘Managed care organization’ means a

person that is authorized or otherwise permitted by law to arrange for or pro-

vide a managed care plan. The term includes a health maintenance organi-

zation and an exclusive provider organization.”); id. § 543A.0001(12)

(“‘Managed care plan’ means a plan, including an exclusive provider benefit

plan, under which a person undertakes to provide, arrange or pay for, or re-

imburse any part of the cost of health care services. The plan must include

arranging for or providing health care services as distinguished from indem-

nification against the cost of those services on a prepaid basis through insur-

ance or otherwise. The term does not include a plan that indemnifies a per-

son for the cost of health care services through insurance.”).

47
For the Commissioner’s part, the statute again uses “shall,” imposing a

mandatory duty on her to give preference to a qualifying MCO regardless of

which eligible route the MCO takes to offer a qualifying managed care plan.

Id. § 311.016(2) (“‘Shall’ imposes a duty.”); see also Hous. Mun. Emps. Pen-

sion Sys., 549 S.W.3d at 582; Emmett, 459 S.W.3d at 588. Indeed, the stat-

ute, recently amended to incorporate non-substantive changes, makes this

reading even more clear:

In awarding contracts to managed care organizations under the
child health plan program and Medicaid, the commission shall
. . . give preference to an organization that offers a managed care
plan that: (1) successfully implements quality initiatives under
Subsection (a) as the commission determines based on data or
other evidence the organization provides; or (2) meets quality-
of-care and cost-efficiency benchmarks under Subsection (b).
Tex. Gov’t Code § 543A.0052(d) (recodifying § 536.052(d)) (emphasis

added).

If the choice were subject to the Commissioner’s discretion, as she con-

tends, the legislative purpose behind half of the statute would be controlled

by the whims of the Commissioner who, to this day, continues to violate the

legislature’s mandate that she develop quality-of-care and cost-efficiency

benchmarks—a mandate that even the Commissioner’s own HHSC staff ad-

mits was imposed so that the benchmarks could be used in procurements

(8 RR 180). By declining to develop benchmarks, the Commissioner

48
disregarded the legislature’s statutory mandate to give contract award pref-

erence to MCOs offering managed care plans meeting the benchmarks. But

even if she were to finally develop those benchmarks, if she could choose to

deny preference to MCOs that meet those benchmarks—giving preference

only to those that implement quality initiatives—the statutory language af-

fording contract award preference for MCOs that meet those benchmarks

would be wholly ineffective.

The Commissioner undisputedly gave no preference on the basis of

quality-of-care and cost-efficiency benchmarks in awarding contracts to

MCOs under CHIP and Medicaid (5 RR 197). The Commissioner’s own

HHSC staff testified unequivocally that, even after over a decade, the Com-

missioner has neither developed the benchmarks nor given preference to an

MCO that offers a managed care plan that meets the benchmarks despite be-

ing statutorily duty-bound to do so (8 RR 178-85; 6 RR 42-44; 5 RR 197).

The Commissioner’s failure to award contracts to Wellpoint and other MCOs

that offer managed care plans that meet the benchmarks that the Commis-

sioner declined to develop is ultra vires. The Commissioner’s unmitigated

failure to comply with her statutory duty is not reasonably subject to debate.

The trial court finding that the Commissioner acted ultra vires in doing so

and granting the temporary injunction did not abuse its discretion.

49
3. Evidence shows the Commissioner failed to afford a meaningful
protest process.
In the same dismissive manner with which she regards her failure to

develop statutorily-required quality-of-care and cost-efficiency benchmarks,

the Commissioner gives short shrift to her failure to afford a meaningful pro-

test process. Instead, the Commissioner largely quibbles over citations and

terminology before arguing – incorrectly – that the record doesn’t show how

the lack of information prejudiced Wellpoint in the protest process.

As a preliminary matter, the legislature has long imposed a statutory

duty on public officials and employees of the State to promptly produce to

the public, on request, government information, such as contracting infor-

mation HHSC maintains regarding its managed care procurements. Tex.

Gov’t Code §§ 552.002-.003, 552.021, 552.022, 552.0222, 552.221. This stat-

utory duty reflects “the policy of this state that each person is entitled, unless

otherwise expressly provided by law, at all times to complete information

about the affairs of government and the official acts of public officials and

employees.” Id. § 552.001(a). The duty to promptly produce means to “pro-

duce public information for inspection, duplication, or both on application

by any person to the officer . . . as soon as possible under the circumstances,

that is, within a reasonable time, without delay.” Id. § 552.221(a). Against

this backdrop, the PIA expressly “provides that ‘a requestor may file suit for

50
a writ of mandamus compelling a governmental body to make information

available,’ thus clearly waiving immunity from these particular suits.” Hous.

Mun. Emps. Pension Sys., 549 S.W.3d at 583 (quoting Tex. Gov’t Code

§ 552.321(a)).

The day after the Commissioner issued the notice of intent to award

new STAR and CHIP contracts, Wellpoint sought information regarding the

decision-making process HHSC followed after receiving proposals from

MCOs by submitting a PIA request for documents and other information

routinely created and maintained as part of HHSC’s procurement file (8 RR

79; P. Ex. 160 [108-10]). The salient point here is that, by the time Wellpoint

had to file its protest of the intended contract awards to meet the deadline

imposed in the HHSC protest procedures, Wellpoint had received none of

the requested PIA information to which it was statutorily entitled. At mini-

mum, Wellpoint should have promptly, if not immediately, received the

other MCOs’ redacted proposals. Instead, the redacted proposals were with-

held from Wellpoint, despite HHSC staff having released to the redacted pro-

posals, including Wellpoint’s, to third parties—months earlier and while the

procurement was actively underway—thereby improperly disclosing at a crit-

ical time during the evaluation and scoring process Wellpoint’s entire

51
strategy for key parts of its proposal, such as how it oversees and contracts

with material subcontractors (8 RR 88-90; P. Ex. 236 [625-26]).

The tension between these conflicting actions is palpable. The PIA re-

quires that an agency “treat all requests for information uniformly.” Tex.

Gov’t Code § 552.223. Rather than attempt to reconcile the unequal treat-

ment, the Commissioner opts for ignoring the failure to produce PIA infor-

mation to Wellpoint, while rewriting the narrative around her affirmative act

of producing PIA information to others. To summarize the staggering chutz-

pah involved here: the Commissioner argues that she produced the redacted

proposals to third parties, even though the evaluation and scoring were ac-

tively underway, because of “the mandate to provide information to any per-

son requesting the bids under the PIA.” Brief for Appellant 34. She even

notes that there is no “requirement that HHSC refuse to provide public in-

formation when HHSC receives a valid PIA request.” Id. 32. The mental gym-

nastics don’t end there. Without contesting the validity of Wellpoint’s PIA

request or the continuing duty to comply with the statutory mandate to pro-

duce PIA information, the Commissioner attacks the record as failing to

show how the lack of information could have prejudiced Wellpoint in the

protest process, which she seemingly disputes Wellpoint has any right to in

the first place because there is no property or liberty interest in being

52
awarded a government contract. Brief for Appellant 34-35. Finally, the Com-

missioner resuscitates her exhaustion argument, claiming the “litigation

conduct resulting in the improper injunction foreclosed any meaningful

agency appeal process.” Id. 35.

The court can make quick work of these strawman arguments. A two-

part test governs a due course of law (or due process) claim under Section 19

of Article 1 of the Texas Constitution. Mosley v. Tex. Health and Human

Servs. Comm’n, 593 S.W.3d 250, 264 (Tex. 2019). That clause provides

that“[n]o citizen of this State shall be deprived of life, liberty, property, priv-

ileges or immunities, or in any manner disfranchised, except by the due

course of the law of the land.” Tex. Const. art. I, § 19. Accordingly, the court

must determine (1) whether the plaintiff has a liberty or property interest

that is entitled to procedural due process protection; and if so, (2) what pro-

cess is due. Mosley, 593 S.W.3d at 264. “‘Due process at a minimum requires

notice and an opportunity to be heard at a meaningful time and in a mean-

ingful manner.’” Id. (quoting Univ. of Tex. Med. Sch. at Hous. v. Than, 901

S.W.2d 926, 930 (Tex. 1995)). “‘[T]he remedy for a denial of due process is

due process[.]’” Id. at 268 (quoting Than, 901 S.W.2d at 933).

Wellpoint undoubtedly has a right to a meaningful protest process; the

Texas statutes themselves require such a process to exist. HHSC

53
promulgated protest procedures, the purpose of which was to resolve “pro-

tests relating to purchases, as required by Texas Government Code

§ 2155.076.” 1 Tex. Admin. Code § 391.301; see also id. §§ 391.101,

391.103(a), 391.107. Pursuant to Government Code § 2155.076, the legisla-

ture mandated “each state agency”—including HHSC—“by rule shall develop

and adopt protest procedures for resolving vendor protests relating to pur-

chasing issues.” Tex. Gov’t Code § 2155.076(a). The statute further mandated

that the rules “include standards for maintaining documentation about the

purchasing process to be used in the event of a protest.” Id.

Even though such procedures and rules for resolving protests like

Wellpoint’s have been developed and adopted (unlike the quality-of-care and

cost-efficiency benchmarks that are more than a decade overdue), Wellpoint

has been denied an effective protest right. The Commissioner’s failure to pro-

vide Wellpoint with the requested information—to which Wellpoint is statu-

torily entitled—in time for Wellpoint to submit its protest of the intended

contract awards deprives Wellpoint of an effective protest right, especially

where, as here, a protest under the existing protest procedures must contain

“a specific identification of the statutory or regulatory provision that the

protestant alleges has been violated,” “a specific description of each act al-

leged to have violated the statutory or regulatory provision identified in the

54
protest,” and “a precise statement of the relevant facts . . . .” 1 Tex. Admin.

Code § 391.305; see also id. § 391.303(b) (“A respondent may protest a solic-

itation, response evaluation, or contract award if the respondent is able to

specifically identify a statutory or regulatory provision that HHS allegedly

violated.”).

As the record shows, the Commissioner’s failure to promptly produce

PIA information deprived Wellpoint of the ability to timely marshal a mean-

ingful protest of the intended contract awards supported by critical docu-

ments and information about the procurement—to which Wellpoint was

statutorily entitled—so that Wellpoint could have the opportunity to be heard

at a meaningful time and in a meaningful manner under the promulgated

protest procedures. To no one’s surprise, HHSC’s Deputy Executive Com-

missioner denied Wellpoint’s protest of the intended contract awards for lack

of supporting information (8 RR 104-05; P. Ex. 159). Adding insult to injury,

she also outright refused to consider any protest supplements, even those

based on subsequently discovered information (5 RR 153-54, 197-98; 8 RR

90-91; P. Ex. 159 [n.1])—ignoring the express carveout in the protest proce-

dures for considering an untimely protest when “good cause for delay is

shown” or if it “raises issues that are significant to HHSC’s procurement

practices or procedures in general.” 1 Tex. Admin. Code § 391.307(d)(1).

55
While the Commissioner contends the record doesn’t show how the

lack of information prejudiced Wellpoint in the protest process, having

stated the statutory duty to promptly produce responsive PIA information—

which Wellpoint promptly requested and was undisputedly entitled to use to

support its protest, and that others had been given earlier access to and dur-

ing the critical stage of the oral presentations, creating an unlevel playing

field and destroying the integrity of the procurement—it is nonsensical to re-

quire Wellpoint to show how it could have been even more prejudiced than

it already was under the circumstances here.

It is likewise nonsensical to require Wellpoint to exhaust the protest

appeal, which is limited in scope to review of the Deputy Executive Commis-

sioner’s determination, 1 Tex. Admin. Code § 391.307(d), before bringing its

ultra vires claim in court when its complaint is that the Commissioner acted

ultra vires in depriving Wellpoint of a meaningful protest process by failing

to promptly produce PIA information so that there could be a meaningful

protest—that could then be meaningfully reviewed under the protest appeal

procedure. Under the circumstances here, the specter of “any meaningful

agency appeal process” was a nullity from the start. Moreover, the Commis-

sioner’s position that a meaningful agency appeal process might have re-

sulted in an outcome favoring Wellpoint had it been allowed to run its course

56
conflicts with the Commissioner’s position that Wellpoint’s ultra vires claims

fail because the Commissioner allegedly “complied with every applicable

statutory requirement.” Brief for Appellant 9. The Commissioner thus has

already decided that she did nothing wrong. Her exhaustion argument is

meritless.

iii. Wellpoint seeks only prospective relief.
Wellpoint’s petition shows that Wellpoint seeks prospective relief only

(CR 4270-79). Wellpoint requested relief “to enjoin any further ultra vires

actions on the STAR & CHIP procurement and intended contract awards,

including the awarding, execution, and implementation of such STAR and

CHIP contracts” as well as “relief compelling Defendant to comply with the

applicable laws and rules for all future procurements and contract awards

and to comply with the TPIA and provide vendors with access to information

necessary to submit meaningful bid protests” (CR 4273). Wellpoint sought

declarations regarding the past ultra vires actions as well as future actions

regarding this procurement (CR 4275-76). As for the current procurement

process, Wellpoint sought an injunction “to restrain Defendant from her con-

tinuing violations of the law as discussed [in the petition] and to enjoin any

further action on the STAR & CHIP procurement, including the execution

57
and implementation of the intended contract awards” (CR 4276). Nowhere

did Wellpoint seek an order to restart the procurement (CR 4276-80).

Granting Wellpoint its requested relief does not require a “redo” or

canceling the procurement. Wellpoint does not ask that the court order the

Commissioner to restart the procurement process. State law may require that

the Commissioner do so, but complying with any such duty is up to her.

iv. Wellpoint asserted other valid ultra vires claims.
Wellpoint adopts arguments of Superior Health Plan Inc. and of Cook

Children’s Health/Texas Children’s Health Plan explaining other grounds for

the ultra vires claims it asserted (CR 4270-79). Tex. R. App. P. 9.7.

B. Equity favors Wellpoint—and the citizens of Texas.
The Commissioner’s argument that the equities favor her position—

that the injury to the State and the public outweighs the irreparable injury to

Wellpoint—has at least two fatal flaws that doom her argument.

a. Unchallenged findings of irreparable harm support relief.
The first flaw is that the Commissioner nowhere directly challenges the

sufficiency of the evidence to support the irreparable harm findings.

The district court found irreparable injury to Wellpoint—a component

of the temporary injunction standard. See State v. City of Austin, 714 S.W.3d

247, 253 (Tex. App. [15th Dist.] 2025, pet. filed). The court found Wellpoint

would incur irreparable injury through, at minimum:

58
 Potential reduction or relocation of its workforce.

 Poaching of highly-trained employees by other MCOs.

 Difficulty maintaining its provider network.

 Loss of investments in service areas and partnerships.
(CR 5881). The Commissioner directly challenges none of those findings. She

argues that Wellpoint cannot “show” it will suffer irreparable harm. Brief for

Appellant 47. Yet according to these unchallenged findings, Wellpoint made

that showing; Wellpoint’s President and CEO, Greg Thompson, testified at

length about these imminent harms (8 RR 92-96). “The trial court does not

abuse its discretion if some evidence reasonably supports the trial court’s de-

cision.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002). This

component of the temporary injunction standard—which includes findings

that Wellpoint “has already suffered” harm—is firmly established.

b. The public is receiving competent, uninterrupted service.
The second flaw is that the Commissioner nowhere specifies evidence

of concrete harm to the public from the temporary injunction, and evidence

conclusively establishes the contrary—namely, it shows that the public will

be receiving uninterrupted and competent STAR and CHIP services.

First of all, the Commissioner has twice agreed to obey this injunction

during this lawsuit—once by a Rule 11 agreement in the district court before

the hearing (CR 2626-49; Supp. RR 32-33) and by a Rule 6.6 agreement in

59
this Court. Jt. Motion to Abate Ex. A (Oct. 29, 2024). The resulting delay in

the procurement extended for months, but the Commissioner has thereby

conceded that the State and the public can tolerate the delay.

Second, the Commissioner has extended the current MCO contracts in

order to continue providing STAR and CHIP services; the MCOs currently

providing STAR and CHIP services are doing so under contract extensions

due to cancellation of prior procurements (5 RR 180-81; 8 RR 96-97). So it’s

simply not true that “the injunction interferes with the entire statewide im-

plementation of the STAR and CHIP programs.” Brief for Appellant 45.

Third, Wellpoint received from the Commissioner the fifth highest

weighted score of all MCOs in the STAR and CHIP procurement (P. Ex. 198

[3]). Implicit in the Commissioner’s argument in this appeal is that this is an

assessment by her that Wellpoint “provides the best value to the agency” in

this way. Tex. Gov’t Code § 2155.144(c). Wellpoint’s score and the Commis-

sioner’s proposed award of contracts to Wellpoint confirm that Wellpoint’s

continued services will benefit, not harm, the public (P. Ex. 95).

Nor is there anything in the record that shows that Wellpoint or the

other MCOs currently serving STAR and CHIP recipients under existing con-

tracts are injuring the public or costing Texas more money. At bottom, this

lawsuit is not, as the Commissioner claims, “barring the State from procuring

60
necessary services for the most vulnerable Texans.” Brief for Appellant 1. Ra-

ther, it is ensuring continuity of high-quality care for program beneficiaries

and adherence to the procurement laws and procedures that the legislature

intended the Commissioner follow.

The Commissioner seeks to avoid this reality by arguing that the public

interests are merged with her interests. Id. 49. The argument begs the ques-

tion: is the Commissioner acting in the public interest, i.e., was she acting

outside the legislature’s directives? The Supreme Court of Texas has stated:

“Requiring the government to follow the law benefits everyone.” In re State,

711 S.W.3d 641, 648 (Tex. 2024). The question in this suit is whether the

Commissioner is following the law—it’s an ultra vires lawsuit. So it’s begging

the question for the Commissioner to assert that her position on the merits

of these ultra vires claims merges with the public interest, because these

claims, ipso facto, seek to prove she is not acting in the public interest—but

rather is acting beyond her legal power, contrary to the public interest.

c. According to the Commissioner’s own arguments, an injunction
would not harm anyone.
According to the Commissioner, no one has a right to receive a govern-

ment contract merely by participating in the procurement process. See Brief

for Appellant 35 (asserting that the MCO plaintiffs “lack a cognizable liberty

or property interest in being awarded a government contract”); id. 46

61
(arguing that the MCO plaintiffs “never had a right to a new contract”). Thus

her arguments about the billions of dollars at stake address only the size of

these publicly-funded healthcare programs, not the harm to anyone or the

rights being withheld from anyone.

d. The district court rejected the Commissioner’s arguments.
The Commissioner’s arguments—that equity favors her position—can-

not form the basis for reversal. The district court rejected those arguments,

the Commissioner did not conclusively establish the “facts” that she now pro-

poses, and this Court’s review is not trial de novo. And for all of the Commis-

sioner’s arguments about the harm to the sovereignty and state resources,

the district court found no harm; it found that the Commissioner “previously

delayed the RFP several times and was able to continue providing coverage

through the current STAR & CHIP contracts by extending contracts in effect

at the time” (CR 5882). This is another unchallenged finding.

e. Wellpoint is likely to succeed on the points raised herein.
Wellpoint has shown it is likely to prevail on the merits of its ultra vires

claims in at least the four ways discussed in detail herein: (i) application of

the statutory scheme for awarding mandatory STAR/Medicaid contracts to

non-Medicaid CHIP contracts, (ii) failure to develop statutorily-required

quality-of-care and cost-efficiency benchmarks, (iii) failure to give contract

award preference for meeting quality-of-care and cost-efficiency

62
benchmarks, and (iv) failure to afford a meaningful protest process. See su-

pra section II.A, pp. 38-58.

C. The injunction satisfies Rule 683.
Rule 683 requires, in pertinent part, that a temporary injunction “shall

set forth the reasons for its issuance” and “shall be specific in terms.” Tex. R.

Civ. P. 683. The temporary injunction states specific reasons for its issuance,

providing a comprehensive listing of specific statutory requirements that the

Commissioner ignored in the procurement (CR 5877-78). It does not merely

state that the Commissioner “acted ultra vires in the procurement” at issue.

The injunction states that the Commissioner has acted and will act ultra vires

in “awarding, executing, and implementing the contracts” arising out of the

STAR and CHIP procurement RFP (CR 5876), and then explains how.

It’s difficult to know how one could improve the temporary injunction

in this regard. One element of an ultra vires claim is “authority giving the

official some (but not absolute) authority to act.” McRaven, 508 S.W.3d at

239. The injunction cites each legal authority at issue—e.g., Texas statutes,

constitutional provisions, and administrative rules—one could hardly be

more specific. The other element of the claim is that the official acted outside

her authority or “failed to perform a ministerial duty.” Matzen, 659 S.W.3d

at 388. Of the thirteen ultra vires actions found, at least eleven involve a

63
failure to act (CR 5877-78). Having stated the statutory duty, it’s nonsensical

to require the injunction to detail a negative, i.e., listing the ways the official

could have, but failed to, perform a required act.

As for the other ultra vires actions the trial court found, the injunction

identifies the Commissioner’s improper affirmative acts (and cites the stat-

utes). Specifically, the Commissioner “wrongfully disclosed the RFP pro-

posals of Plaintiffs and other respondents” and “award[ed] mandatory CHIP

contracts to MCOs to which Defendant intends to award mandatory STAR

contracts . . . .” (CR 5877-78). So the temporary injunction is not defective in

failing to state a “nonconclusory reason for issuing.” Brief for Appellant 52.

Nor does the Commissioner’s case law cited require that. Rather, it tells a

trial court that “the reasons it believes the applicant will suffer injury . . .

must be specific and legally sufficient, and not mere conclusory statements.”

Indep. Cap. Mgmt. LLC v. Collins, 261 S.W.3d 792, 795 (Tex. App.—Dallas

2008, no pet.). It’s the reason the applicant will suffer injury for which this

case imposes a specificity requirement.

And the injunction satisfies that standard, with a detailed listing of the

harms Wellpoint will suffer if the ultra vires acts are not enjoined (CR 5881-

82). Neither the rule nor the case law requires that the injunction interpret

the statutes at issue, or make fact findings on “the reasons for its issuance,”

64
or explain away contrary arguments, as the Commissioner suggests. Brief for

Appellant 52-53. This is not a case, as in In re Luther, 620 S.W.3d 715 (Tex.

2021), where the defendant could not determine how to avoid contempt, due

to “the temporary restraining order’s lack of specificity regarding the conduct

to be restrained.” Id. at 724. Nor does the Commissioner complain that the

lack of specificity makes it impossible for her to know how to comply with

this injunction. The comprehensiveness of her principal brief in this appeal

says otherwise; it indicates that she well understands the basis for the injunc-

tion and what it enjoins.

D. Excluding the Commissioner’s hearsay was proper and, in
any event, harmless.
Exclusion of the scoring rubrics “which described, among other things,

what factors HHSC considered in evaluating each bid,” Brief for Appellant

54, was entirely proper, but at worst it could only be harmless error, because

those scoring rubrics do not concern the Commissioner’s ultra vires conduct

in (i) failing to develop the quality of care and cost-efficiency benchmarks

pursuant to Government Code § 536.052(b) (recodified as § 543A.0052(b)),

(ii) failing to give contract award preference for meeting quality-of-care and

cost-efficiency benchmarks, pursuant to Government Code § 536.052(d) (re-

codified as § 543A.0052(d)), (iii) wrongly relying on Health and Safety Code

§ 62.053 to award the non-Medicaid CHIP contracts under the regulatory

65
scheme for awarding mandatory Medicaid contracts under Government

Code § 533.004 (recodified as § 540.0206), or (iv) failing to afford Wellpoint

a meaningful protest process, violating the Texas Constitution’s due course

of law guarantee. See supra section II.A, pp. 38-58.

This Court may reverse only if it finds harmful error. Tex. R. App. P.

44.1(a)(1). Appellate courts do not presume that error is harmful. See, e.g.,

Harris Cnty. v. Smith, 96 S.W.3d 230, 235 (Tex. 2002) (“[T]he dissent sug-

gests that we must presume harm here in order to reverse. We disagree.”). In

determining whether error was harmful, this Court “must consider the entire

record of the case as a whole.” Horton v. Kansas City S. Ry., 692 S.W.3d 112,

138 & n.23 (Tex. 2024) (citing In re Est. of Poe, 648 S.W.3d 277 (Tex. 2022)).

The Commissioner offers no specific argument as to how, precisely, the

proffered evidence relates to the above four issues. The Commissioner argues

only, in general, that the excluded exhibits (a) “show that the Commissioner

acted within her statutory authority in awarding the contracts” and that they

were “crucial to deciding the question of whether the procurement process

complied with applicable statutes.” Brief for Appellant 54, 57. But absent

specification of what, precisely, the exhibits addressed in that regard—e.g.,

failing to develop or implement benchmarks, unlawfully awarding manda-

tory CHIP contracts, or failing to afford a meaningful protest process—

66
Wellpoint can only respond with a general denial of the exhibits’ relevance.

In short, the appellant has the burden to demonstrate error was harmful, but

the Commissioner has not adequately briefed this issue.

But it doesn’t matter, because this appeal concerns whether the Com-

missioner’s plea to the jurisdiction was improperly denied and the temporary

injunction findings constitute an abuse of discretion, i.e., whether any evi-

dence supports the trial court’s decision. Unless the excluded evidence would

conclusively establish the matter, their admission couldn’t negate the evi-

dence supporting the denial of the plea and the temporary injunction find-

ings. In short, excluding the documents cannot be considered action that

“probably caused the rendition of an improper judgment.” Tex. R. App. P.

44.1(a)(1).

In the trial court, the Commissioner argued that the scoring rubrics

had relevance to just one ultra vires action: “This goes directly to their claim

about the failure to document . . . They are squarely relevant as to what HHSC

considered when giving out these scores . . . This goes squarely to what HHSC

considered in their lawful discretion to give these awards . . . documents . . .

that go directly to 2155.144(c), the plaintiffs’ allegation of failure to docu-

ment” (8 RR 151-52, 155). Yet that narrow focus doesn’t encompass the other

twelve ultra vires acts found (CR 5877-78). For example, the court found the

67
Commissioner developed no quality-of-care and cost-efficiency benchmarks

(CR 5877). That failure occurred long before the STAR and CHIP RFP and

the scoring. It’s undisputed the Commissioner developed no such bench-

marks; the excluded documents don’t refute that. So the documents could

have no bearing on findings about that matter—meaning their exclusion is

harmless in regard to at least one, undisputed ultra vires act which alone

would support the injunction and the denial of the plea to the jurisdiction.

Moreover, the record shows that during their depositions, the Commis-

sioner’s representatives—Ramirez and Molina—testified that they lacked

knowledge of all the scoring rubrics (having only reviewed a few of them) (8

RR 139-50; P. Ex. 320). Given the Commissioner’s failure to proffer any wit-

ness with personal knowledge at the hearing to lay a proper foundation for

all of the proffered records, and the Commissioner’s failure to produce a rep-

resentative prepared to testify about the scoring rubrics during depositions,

under these circumstances, excluding the exhibits was within the court’s dis-

cretion under the discovery and evidence rules and was proper, and in any

event, harmless.

68
Prayer

Wellpoint Insurance Company asks this Court to affirm the trial court’s

ruling and award Wellpoint its costs, if any. Tex. R. App. P. 43.4.

Respectfully submitted,

/s/ Michelle Y. Ku
Michelle Y. Ku Robert F. Johnson III
Texas Bar No. 24071452 Texas Bar No. 10786400
mku@foley.com rjohnson@foley.com
Stacy R. Obenhaus Foley & Lardner LLP
Texas Bar No. 15161570 600 Congress, Suite 3000
sobenhaus@foley.com Austin, Texas 78701
Foley & Lardner LLP Tel: 512.542.7000
2021 McKinney, Suite 1600 Fax: 512.542.7100
Dallas, Texas 75201
Tel: 214.999.3000 Counsel for
Fax: 214.999.4667 WellPoint Insurance Company

Of counsel:
Benjamin J. Grossman
Florida Bar No. 92426
bjgrossman@foley.com
106 E. College Ave., Suite 900
Tallahassee, Florida 32301
Tel: 850.222.6100
Fax: 850.561.6475

69
Certificate of Compliance

I certify that this document contains 12,712 words, not counting those

parts of the document excluded by TRAP 9.4(i).

/s/ Stacy R. Obenhaus
Stacy R. Obenhaus

70
Automated Certificate of eService
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Michelle Ku on behalf of Michelle Ku
Bar No. 24071452
mku@foley.com
Envelope ID: 108914356
Filing Code Description: Brief Requesting Oral Argument
Filing Description: Brief of Appellee Wellpoint Insurance Company
Status as of 12/10/2025 7:20 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Michaelle Peters mpeters@scottdoug.com 12/9/2025 10:03:13 PM SENT

Julie Wright julie.wright@nortonrosefulbright.com 12/9/2025 10:03:13 PM SENT

Amanda DoddsPrice amanda.price@squirepb.com 12/9/2025 10:03:13 PM SENT

Mandy Patterson mpatterson@adjtlaw.com 12/9/2025 10:03:13 PM SENT

Michelle Joyner mjoyner@scottdoug.com 12/9/2025 10:03:13 PM SENT

Abril Rivera arivera@scottdoug.com 12/9/2025 10:03:13 PM SENT

Nancy Villarreal nancy.villarreal@oag.texas.gov 12/9/2025 10:03:13 PM SENT

Jessie Johnson jessie.johnson@nortonrosefulbright.com 12/9/2025 10:03:13 PM SENT

David Johns david@cobbjohns.com 12/9/2025 10:03:13 PM SENT

Cory Scanlon cory.scanlon@oag.texas.gov 12/9/2025 10:03:13 PM SENT

Stacey Jett sjett@adjltaw.com 12/9/2025 10:03:13 PM SENT

Victor Hernandez victor.hernandez@oag.texas.gov 12/9/2025 10:03:13 PM SENT

Associated Case Party: Cook Children's Health Plan

Name BarNumber Email TimestampSubmitted Status

Karen Burgess 796276 kburgess@burgesslawpc.com 12/9/2025 10:03:13 PM SENT

Anna Baker 791362 abaker@adjtlaw.com 12/9/2025 10:03:13 PM SENT

Amy Warr 795708 awarr@adjtlaw.com 12/9/2025 10:03:13 PM SENT

Juliana Bennington jbennington@perkinscoie.com 12/9/2025 10:03:13 PM SENT

Jonathan Hawley jhawley@perkinscoie.com 12/9/2025 10:03:13 PM ERROR

Trisha Marino tmarino@perkinscoie.com 12/9/2025 10:03:13 PM SENT

Perkins Docketing Team DocketSEA@perkinscoie.com 12/9/2025 10:03:13 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
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Michelle Ku on behalf of Michelle Ku
Bar No. 24071452
mku@foley.com
Envelope ID: 108914356
Filing Code Description: Brief Requesting Oral Argument
Filing Description: Brief of Appellee Wellpoint Insurance Company
Status as of 12/10/2025 7:20 AM CST

Associated Case Party: Cook Children's Health Plan

Perkins Docketing Team DocketSEA@perkinscoie.com 12/9/2025 10:03:13 PM SENT

Katie Dolan-Galaviz kgalaviz@burgesslawpc.com 12/9/2025 10:03:13 PM SENT

Matthew Gordon mgordon@perkinscoie.com 12/9/2025 10:03:13 PM SENT

Associated Case Party: Texas Children's Health Plan

Name BarNumber Email TimestampSubmitted Status

Mark Emery 24050564 mark.emery@nortonrosefulbright.com 12/9/2025 10:03:13 PM SENT

Warren Huang 796788 warren.huang@nortonrosefulbright.com 12/9/2025 10:03:13 PM SENT

Paul Trahan 24003075 paul.trahan@nortonrosefulbright.com 12/9/2025 10:03:13 PM SENT

Susan Harris 6876980 susan.harris@nortonrosefulbright.com 12/9/2025 10:03:13 PM SENT

Thomas Coulter 4885500 tom.coulter@nortonrosefulbright.com 12/9/2025 10:03:13 PM SENT

Kayla Ahmed kayla.ahmed@nortonrosefulbright.com 12/9/2025 10:03:13 PM SENT

Associated Case Party: Wellpoint Insurance Company

Name BarNumber Email TimestampSubmitted Status

Robert Johnson 10786400 rjohnson@foley.com 12/9/2025 10:03:13 PM SENT

Michelle Ku 24071452 mku@foley.com 12/9/2025 10:03:13 PM SENT

Kristin Hernandez kristin.hernandez@foley.com 12/9/2025 10:03:13 PM SENT

Benjamin Grossman bjgrossman@foley.com 12/9/2025 10:03:13 PM SENT

Stacey Obenhaus sobenhaus@foley.com 12/9/2025 10:03:13 PM SENT

Associated Case Party: Superior Healthplan Inc.
Automated Certificate of eService
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The filer served this document via email generated by the efiling system
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certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Michelle Ku on behalf of Michelle Ku
Bar No. 24071452
mku@foley.com
Envelope ID: 108914356
Filing Code Description: Brief Requesting Oral Argument
Filing Description: Brief of Appellee Wellpoint Insurance Company
Status as of 12/10/2025 7:20 AM CST

Associated Case Party: Superior Healthplan Inc.

Name BarNumber Email TimestampSubmitted Status

Richard Phillips 24032833 Rich.Phillips@hklaw.com 12/9/2025 10:03:13 PM SENT

J McCaig 24070083 meghan.mccaig@outlook.com 12/9/2025 10:03:13 PM SENT

Karen Walker karen.walker@hklaw.com 12/9/2025 10:03:13 PM SENT

Tiffany Roddenberry tiffany.roddenberry@hklaw.com 12/9/2025 10:03:13 PM SENT

Associated Case Party: Texas Health and Human Services

Name BarNumber Email TimestampSubmitted Status

Victoria Gomez victoria.gomez@oag.texas.gov 12/9/2025 10:03:13 PM SENT

Jennifer Cook Jennifer.Cook@oag.texas.gov 12/9/2025 10:03:13 PM SENT

Associated Case Party: Aetna Better Health of Texas, Inc.

Name BarNumber Email TimestampSubmitted Status

Joseph Knight 11601275 jknight@ebbklaw.com 12/9/2025 10:03:13 PM SENT

Associated Case Party: Cecile Erwin Young, Texas Health and Human Services

Name BarNumber Email TimestampSubmitted Status

Cory Scanlon 24104599 cory.scanlon@oag.texas.gov 12/9/2025 10:03:13 PM SENT

William FCole William.Cole@oag.texas.gov 12/9/2025 10:03:13 PM SENT

Jeffrey Stephens jeff.stephens@oag.texas.gov 12/9/2025 10:03:13 PM SENT

Mohmed Patel mohmed.patel@oag.texas.gov 12/9/2025 10:03:13 PM SENT

Associated Case Party: Molina Healthcare of Texas, Inc.
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Michelle Ku on behalf of Michelle Ku
Bar No. 24071452
mku@foley.com
Envelope ID: 108914356
Filing Code Description: Brief Requesting Oral Argument
Filing Description: Brief of Appellee Wellpoint Insurance Company
Status as of 12/10/2025 7:20 AM CST

Associated Case Party: Molina Healthcare of Texas, Inc.

Name BarNumber Email TimestampSubmitted Status

Jason R.LaFond jlafond@scottdoug.com 12/9/2025 10:03:13 PM SENT

Cheryl LaFond 24104015 clafond@scottdoug.com 12/9/2025 10:03:13 PM SENT