                                                                FILED
                                                                13-0989
                                                                10/23/2015 12:22:31 PM
                                                                tex-7515115
                                                                SUPREME COURT OF TEXAS
                                                                BLAKE A. HAWTHORNE, CLERK

                             NO. 13-0989
                 ___________________________________

                               IN THE
                     SUPREME COURT OF TEXAS
                 ___________________________________

        LEISEL MOSELEY, BRIAN DUNN, AND JANEL DUNN
                      PETITIONERS,

                                  VS.

  HAPPY HILL FARM ACADEMY/HOME AND HAPPY HILL FARM
  CHILDREN’S HOME ENDOWMENT FUND, HAPPY HILL FARM
   CHILDREN HOME, INC. A/K/A DALLAS COWBOYS COURAGE
                           HOUSE,
                       RESPONDENTS.
             ___________________________________

   On Petition for Review from the Tenth Court of Appeals, Waco, Texas
                  ___________________________________

      LEISEL MOSELEY, BRIAN DUNN, AND JANEL DUNN’S
      MOTION FOR REHEARING OF PETITION FOR REVIEW
             ___________________________________

                           Respectfully submitted,

                           JASON C.N. SMITH
                           State Bar No. 00784999
                           LAW OFFICES OF JASON SMITH
                           600 Eighth Avenue
                           Fort Worth, Texas 76104
                           (817) 334-0880 telephone
                           (817) 334-0898 telecopier
                           Email: jasons@letsgotocourt.com

                           ATTORNEYS FOR PETITIONERS,
                           LEISEL MOSELEY, BRIAN DUNN,
                           AND JANEL DUNN
OCTOBER 23, 2015                   ORAL ARGUMENT REQUESTED
                   INDEX OF ABBREVIATIONS

Clerk’s Record …………………………………………………                       C.R.

Supplemental Clerk’s Record received 12/13/12 …………….….   S.C.R.




                                i
                                  TABLE OF CONTENTS

INDEX OF ABBREVIATIONS ............................................................................... i
TABLE OF CONTENTS ......................................................................................... ii
TABLE OF AUTHORITIES ................................................................................... iii
I.   STATEMENT OF THE CASE .......................................................................... 2
II. STATEMENT OF JURISDICTION ................................................................. 3
III. SUMMARY OF ARGUMENT ......................................................................... 4
IV. ISSUES PRESENTED ...................................................................................... 5

     1.     Did the Court of Appeals incorrectly disregard the affidavit of an
           interested witness that created a question of fact?

     2.     Did the Court of Appeals err in concluding that there was no
           evidence demonstrating Happy Hill Farm was a “mental health
           facility” as defined by section 571.003(12) for purposes of the claims
           brought under Chapter 161 of the Texas Health and Safety Code?
V. STATEMENT OF FACTS ................................................................................ 5
VI. COURT OF APPEALS IMPROPERLY DISREGARDED THE
      AFFIDAVIT OF BRIAN DUNN ..................................................................... 9
VII. THERE IS SOME EVIDENCE HAPPY HILL FARM MEETS THE
          DEFINITION OF MENTAL HEALTH FACILITY .................................... 14
VIII. CONCLUSION AND PRAYER ................................................................. 17
CERTIFICATE OF COMPLIANCE ..................................................................... 18
CERTIFICATE OF SERVICE ............................................................................... 18




                                                   ii
                                   TABLE OF AUTHORITIES

CASES
Acker v. Texas Water Comm’n,
   790 S.W.2d 299 (Tex. 1990) .................................................................. 3, 10, 12

Boswell v. Farm & Home Sav. Ass'n,
   894 S.W.2d 761 (Tex.App.-Fort Worth 1994, writ denied) ............................ 11

DeWoody v. Rippley,
   951 S.W.2d 935 (Tex. App.—Fort Worth 1997, writ dism’d) .............. 3, 10, 12

Dunn v. Happy Hill Farm Academy,
   ____ S.W.3d ___, _____ 2013 WL 4767528 (Tex. App. -- Waco 2013,
   pet. filed)........................................................................................................ 2, 9

Emeritus Corp. v. Blanco,
  355 S.W.3d 270 (Tex. App.—El Paso 2011, pet. denied) .................................. 8

First Nat. Bank in Munday v. Lubbock Feeders, L.P.,
    183 S.W.3d 875 (Tex. App. – El Paso 2006, pet. denied) .......................... 10, 11

General Prod. Co. v. Black Coral Invs.,
   715 S.W.2d 121 (Tex.App. -- Houston [14th Dist.] 1986, writ ref'd n.r.e.) ..... 11

Grynberg v. M-I L.L.C.,
   398 S.W.3d 864 (Tex. App. -- Corpus Christi 2012, pet. filed) ................. 10, 12

Haynes v. City of Beaumont,
   35 S.W.3d 166 (Tex. App.–Texarkana, 2000, no pet.)......................... 3, 10, 12

Longoria v. Texaco, Inc.,
    649 S.W.2d 332 (Tex. App. -- Corpus Christi 1983, no writ) .................. 10, 13

Marshall v. Sackett,
    907 S.W.2d 925 (Tex. App.-- Houston [1st Dist.] 1995, no writ) .................. 11


Maxwell v. Willis,
   316 S.W.3d 680 (Tex. App. 2010) .................................................................. 12


                                                         iii
McCord v. Avery,
   708 S.W.2d 954 (Tex. App. -- Fort Worth, 1986, no writ) ............................. 10

S & I Mgmt., Inc. v. Sungju Choi,
     331 S.W.3d 849 (Tex. App.--Dallas 2011, no pet.)........................................ 11

Smith v. O’Donnell,
    288 S.W.3d 417 (Tex. 2009) ....................................................................... 9, 10

Tabor v. Medical Center Bank,
    534 S.W.2d 199 (Tex. App.—Houston [14th Dist.] 1976, no writ) ...... 3, 10, 13

Trico Technologies Corp. v. Montiel,
     949 S.W.2d 308 (Tex. 1997) ............................................................... 3, 10, 12

Valence Operating Co. v. Dorsett,
     164 S.W.3d 656 (Tex. 2005). .......................................................................... 9

Womack v. I&H Development Co.,
    433 S.W.2d 937 (Tex. 1968) .............................................................. 3, 10, 13

STATUTES
TEX. GOV'T CODE § 22.001(a)(1).............................................................................. 4

TEX. GOV'T CODE § 22.001(a)(2)............................................................................. 3

TEX. GOV'T CODE § 22.001(a)(3).............................................................................. 3

TEX. HEALTH & SAFETY CODE § 161.134................................................................. 8
TEX. HEALTH & SAFETY CODE § 161.134(a) .......................................................... 13
TEX. HEALTH & SAFETY CODE § 571.002(1) .......................................................... 14

TEX. HEALTH & SAFETY CODE § 571.003............................................................... 16

TEX. HEALTH & SAFETY CODE § 571.003(12) ........................................ 5, 13, 14, 17
TEX. HEALTH & SAFETY CODE § 571.006............................................................... 14

TEX. R. APP. P. 9.4(i)(3) ......................................................................................... 18

                                                       iv
TEX. R. CIV. P. 166a(c) ...................................................................................... 9, 10




                                                      v
                               NO. 13-0989
                   ___________________________________

                                 IN THE
                       SUPREME COURT OF TEXAS
                   ___________________________________

          LEISEL MOSELEY, BRIAN DUNN, AND JANEL DUNN
                        PETITIONERS,

                                      VS.

   HAPPY HILL FARM ACADEMY/HOME AND HAPPY HILL FARM
   CHILDREN’S HOME ENDOWMENT FUND, HAPPY HILL FARM
    CHILDREN HOME, INC. A/K/A DALLAS COWBOYS COURAGE
                            HOUSE,
                        RESPONDENTS.
              ___________________________________

    On Petition for Review from the Tenth Court of Appeals, Waco, Texas
                   ___________________________________

         LEISEL MOSELEY, BRIAN DUNN, AND JANEL DUNN’S
         MOTION FOR REHEARING OF PETITION OF REVIEW
                ___________________________________

TO THE HONORABLE SUPREME COURT OF TEXAS:

      COME NOW, Leisel Moseley, Brian Dunn and Janel Dunn, Appellants, and

through their attorney of record, files this Motion for Rehearing of Petition for

Review, and would show the Court as follows:




                                        1
                                                   I.

                                STATEMENT OF THE CASE

          Petitioners brought suit against Happy Hill Farm for violating Chapter 161

of the Texas Health and Safety Code, asserting they were terminated for reporting

illegal conduct to law enforcement officials. Happy Hill Farm moved for summary

judgment asserting that it was not a mental health facility, and therefore could not

be held liable under section 161 of the Texas Health and Safety Code. The trial

court granted summary judgment for Happy Hill Farm. (S.C.R. 12/13/12, 1-2).

The Waco Court of Appeals issued an opinion affirming the trial court judgment.

Dunn v. Happy Hill Farm Academy, ____ S.W.3d ____, _____ 2013 WL 4767528

(Tex. App. -- Waco 2013, pet. filed).

          Briefing on the merits in this Court was completed on August 14, 2014.

          On September 11, 2015, this Court denied the Petition of Review.

          On rehearing, Petitioners have narrowed their request for review even

further to whether there was a question of fact whether Happy Hill Farm was a

mental health facility. 1




1
    Due to the narrow issue presented in this case, this case is ripe for disposition by per curiam
                                                    2
                                          II.

                        STATEMENT OF JURISDICTION

         Under section 22.001(a)(2) of the Texas Government Code, the Texas

Supreme Court has jurisdiction over this Petition because the Court of Appeals

opinion conflicts with the holding of the Texas Supreme Court holding that an

uncorroborated affidavit of an interested witness may create a fact issue in Trico

Technologies Corp. v. Montiel, 949 S.W.2d 308 (Tex. 1997), Acker v. Texas Water

Comm’n, 790 S.W.2d 299, 302 (Tex. 1990) and Womack v. I&H Development Co.,

433 S.W.2d 937, 940 (Tex. 1968).

         Under section 22.001(a)(2) of the Texas Government Code, the Texas

Supreme Court has jurisdiction over this Petition because the Court of Appeals

opinion conflicts with the holding of the Texarkana, Fort Worth, and Houston [14th

Dist.] Courts of Appeal that have held holding that an uncorroborated affidavit of

an interested witness may create a fact issue in Haynes v. City of Beaumont, 35

S.W.3d 166, 178 (Tex. App.–Texarkana, 2000, no pet.), DeWoody v. Rippley, 951

S.W.2d 935, 943 (Tex. App.—Fort Worth 1997, writ dism’d) and Tabor v. Medical

Center Bank, 534 S.W.2d 199, 201 (Tex. App.—Houston [14th Dist.] 1976, no

writ).

         Under section 22.001(a)(3), the Texas Supreme Court has jurisdiction of the

Petition because the Court of Appeal’s failure to recognize a boarding school as a



                                           3
mental health facility under Chapter 161 of the Texas Health and Safety Code

involves the construction of a statute necessary to the determination of the case.

      Under section 22.001(a)(1), the Texas Supreme Court has jurisdiction of the

Petition because the Court of Appeals opinion has committed an error of law of

such importance to the jurisprudence of the state that it should be corrected, to wit,

the opinion will limit the regulatory jurisdiction of the State of Texas to regulate

schools that qualify as a mental health facility.


                                          III.

                          SUMMARY OF ARGUMENT

      This case is about access to the courthouse.

      The Court of Appeal’s opinion ignores the long established standard on

summary judgment that a fact issue may be raised by the affidavit of an interested

witness. Apparently, while not originally designated for publication, the Court of

Appeal’s opinion will now be published.

      The Court of Appeal’s holding has broader implications for the power to

regulate mental health if left to stand. The Court of Appeal’s opinion incorrectly

suggests that just because a facility is a boarding school that it may not also be a

mental health facility.

      Accordingly, the Texas Supreme Court should grant the Petition for Review,

reverse the summary judgment, and remand the case to the trial court.


                                           4
                                       IV.

                             ISSUES PRESENTED

   1. Did the Court of Appeals incorrectly disregard the affidavit of an interested
      witness that created a question of fact?

   2. Did the Court of Appeals err in concluding that there was no evidence
      demonstrating Happy Hill Farm was a “mental health facility” as defined by
      section 571.003(12) for purposes of the claims brought under Chapter 161 of
      the Texas Health and Safety Code?

                                        V.

                           STATEMENT OF FACTS

      Happy Hill Farm is a school providing extensive services. (C.R. 41, 115).

Happy Hill Farm provides 85 to 107 children food, housing, schooling, religious

services, counseling and medical care. (C.R. 41, 43, 46, 115-17)

      Leisel Moseley, Janel Dunn and Brian Dunn were good, competent

employees of Appellee who genuinely cared for the welfare of the children at the

campus. (C.R. 56, 93).      Todd Shipman and Ed Shipman are officers/board

members of Happy Hill Farm. (C.R. 40-44).

       Happy Hill Farm’s Employee Handbook provides:

      Basic Child Care

      The Farm’s primary constituency is the dependent, abused, pre-
      delinquent, or neglected child between the ages of five and eighteen.
      Happy Hill Farm Academy Home is open to accept children of any or
      no religious background, and of any racial, ethnic, or socio-economic
      group. Each application is given individual consideration by the
      Admissions Committee.


                                         5
An initial evaluation and intake study is mandatory for admittance.
This includes physical, educational, and psychological testing. Young
people with special needs will be provided with a structured program
of professional counsel. The other children will have regular sessions
with the Farm’s Consultant Psychologist, the Therapist, the Social
Worker, the COO, the Academy Principal, and the Directors of Living
Units to assist them with family adjustments, personal problems, and
interpersonal relationships.

Academy

Most of the children who reside on the Farm presently, and an
overwhelming majority of the children who will be considered for
placement in the future, share a common problem. Many children are
failures in the public school system. Some have been expelled
altogether. Academically, and usually socially as well, these children
are the dropouts and kicked-outs of our society. Some of them are
suffering from emotional disturbances, while others are victims of
broken homes and/or abuse and neglect, or homes without proper
discipline, love, or success in the parent-child relationship.

The Farm staff, including a consulting psychiatrist, psychologist and a
pediatrician, provide the Academy with complete evaluation and
testing for each potential applicant to Happy Hill Farm
Academy/Home. A program of follow-up is also part of the learning
and counseling plan for each child.

                             *     *      *

INTAKE

Upon referral, decisions regarding placement and treatment plans are
made by an Admissions Committee. The process initiates with the
gathering of all available data, such as the application, social history,
psychological reports, psychiatric and neurological evaluations,
school records, and medical and dental histories. An evaluation is
required, so existing data will be updated, or an evaluation will be
arranged. This data is compiled and reviewed by the Committee. If
the applicant is accepted, it is with the understanding by the
parent/guardian that it is for a trial period.

                                    6
        TREATMENT

        Upon acceptance, a diagnostic assessment is made for the needs of
        each child or young adult, resulting in an individual treatment plan.
        This plan is periodically re-assessed for modification. This plan is
        implemented by a qualified staff, consisting of therapists, teachers,
        and administration. The ongoing staff is assisted by consultants, such
        as a medical doctor, psychiatrist, psychologist, and other specialists,
        as the need for their services arises. The parent/guardian is made
        aware of the progress of the child.

(C.R.

        Happy Hill Farm provided mental health services for students living on

campus. (C.R. 102, 104-05, 116-17, 204-05, 222).

        Brian Dunn obtained a Masters Degree in Social Work from University of

Texas at Arlington and was completing the requirements to become a licensed

social worker. (C.R. 104-05). Brian Dunn was authorized to provide counseling

under the supervision of a licensed social worker and provided such counseling at

Happy Hill Farm. (C.R. 104-05).

        Moseley has been licensed as a Licensed Vocation Nurse by the Texas

Board of Nursing since 1992. (C.R. 107, 176).

        Janel Dunn worked in the medical clinic at Happy Hill’s facility assisting

doctors and nurses. (C.R.101-03).

        Janel reported to the Texas Department of Public Safety a violation of law,

to wit, that Grace Barber, R.N., was improperly executing prescriptions for

children without authority to do so and that Dr. John Michael White was involved

                                           7
in the improper execution of prescriptions for children. (C.R. 51-55, 86-87). Brian

and Janel were deeply concerned that such unsupervised and improper execution of

prescriptions posed serious health risks to the children at Happy Hill Farm’s

facilities. (C.R. 51-55, 86-87).

       Brian reported these same issues to his supervisor, Susan Blair. (51-55). A

few days after he reported these issues to Ms. Blair, Brian Dunn’s employment was

terminated by Happy Hill Farm. (C.R. 58-9, 61-63). As a result of removing

Brian’s income and benefits, the work environment was made so intolerable that

Janel had no other alternative but to resign on June 9, 2008.2 (C.R. 61-63).

       Nurse Barber was given an official reprimand by the Texas Board of

Nursing for this unlawful use of prescription pads, and was required to pay a fine

and take remedial education classes. (C.R. 96).

       Moseley reported certain violations of law about medical misconduct to the

Department of Family and Protective Services regarding employees of Happy Hill

Farm that she believed threatened the health and safety of the children Happy Hill

Farm’s facilities. (C.R. 93-4, 98).        Moseley made this report on June 13, 2008.

(C.R. 93-4, 98). On July 31, 2008, Happy Hill Farm terminated Moseley. (C.R.

51-55).




2
  Under section 161.134 of the Texas Health and Safety Code allow an employee who are
retaliated against sue for constructive discharge. See Emeritus Corp. v. Blanco, 355 S.W.3d 270,
281 (Tex. App.—El Paso 2011, pet. denied).
                                               8
      The Dunn’s and Moseley filed suit on October 24, 2008 and filed their First

Amended Petition on October 27, 2008. (C.R. 16, 226).


                                          VI.

COURT OF APPEALS IMPROPERLY DISREGARDED THE AFFIDAVIT
                    OF BRIAN DUNN

      In reviewing the evidence offered by Petitioners, the Court of Appeals

incorrectly disregards the affidavit of an interested party that raises a fact issue:

“[O]ther than unsupported assertions made in Brian's affidavit, there is no evidence

in the record demonstrating that Happy Hill Farm operates as a mental-health or

treatment facility.” Dunn v. Happy Hill Farm Academy, ___ S.W.3d ___, ___ 2013

WL 4767528 * 4 (Tex. App.—Waco 2013, pet. filed). Dunn affidavit sets forth

disputed facts not mere assertions.

      On summary judgment, the movant bears the burden of establishing that

there is no genuine issue of material fact and that it is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(c).

      This Court reviews the trial court's summary judgment de novo. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In deciding whether

there is a disputed material fact issue precluding summary judgment, evidence

favorable to the non-movant will be taken as true; every reasonable inference must

be indulged in favor of the non-movant and any doubt resolved in its favor. Smith

v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009) “If [a party opposing summary

                                           9
judgment] brings forth more than a scintilla of probative evidence to raise a

genuine issue of material fact, a no-evidence summary judgment cannot properly

be granted.” 288 S.W.3d at 424.

      First, Brian’s affidavit, even if uncorroborated and that of an interested party

or witness, is sufficient to create a fact issue. Trico Technologies Corp. v. Montiel,

949 S.W.2d 308 (Tex. 1997); Acker v. Texas Water Comm’n, 790 S.W.2d 299, 302

(Tex. 1990); Grynberg v. M-I L.L.C., 398 S.W.3d 864 (Tex. App. -- Corpus Christi

2012, pet. filed) citing Longoria v. Texaco, Inc., 649 S.W.2d 332, 335-36 (Tex.

App. -- Corpus Christi 1983, no writ); see also Womack v. I&H Development Co.,

433 S.W.2d 937, 940 (Tex. 1968)(uncorroborated affidavit may support or defeat

summary judgment).

      “Although insufficient to establish a right to judgment as a matter of law,

testimony from an interested witness submitted as controverting evidence by a

non-movant may raise a fact issue precluding summary judgment.” DeWoody v.

Rippley, 951 S.W.2d 935, 943 (Tex. App.—Fort Worth 1997, writ dism’d) citing

TEX. R. CIV. P. 166a(c) and McCord v. Avery, 708 S.W.2d 954, 955 (Tex. App. --

Fort Worth, 1986, no writ): see also Haynes v. City of Beaumont, 35 S.W.3d 166,

178 (Tex. App.–Texarkana, 2000, no pet.); Tabor v. Medical Center Bank, 534

S.W.2d 199, 201 (Tex. App.—Houston [14th Dist.] 1976, no writ).

      “A person's position or job responsibilities can peculiarly qualify him to

have personal knowledge of facts and establish how he learned of the facts.” First
                                          10
Nat. Bank in Munday v. Lubbock Feeders, L.P., 183 S.W.3d 875, 881 (Tex. App. –

El Paso 2006, pet. denied) citing Boswell v. Farm & Home Sav. Ass'n, 894 S.W.2d

761, 768 (Tex. App. -- Fort Worth 1994, writ denied).

       Brian’s affidavit is not conclusory. “A conclusory statement is one that does

not provide the underlying facts to support the conclusion.” S & I Mgmt., Inc. v.

Sungju Choi, 331 S.W.3d 849, 855-56 (Tex. App.--Dallas 2011, no pet.)

       Even if the affidavit contains conclusory statements, an affidavit containing

conclusory and subjective determinations of fact may be sufficient if the remaining

statements contain sufficient factual information to sustain the a party’s burden.

First Nat. Bank in Munday v. Lubbock Feeders, L.P., 183 S.W.3d 875, 881 (Tex.

App.—El Paso 2006, pet. denied) citing Marshall v. Sackett, 907 S.W.2d 925, 933

(Tex. App.-- Houston [1st Dist.] 1995, no writ); General Prod. Co. v. Black Coral

Invs., 715 S.W.2d 121, 123 (Tex. App. -- Houston [14th Dist.] 1986, writ ref'd

n.r.e.).

       Brian’s affidavit details his position, his responsibilities and details the

mental health services he and other professionals provided as Happy Hill Farm.

Brian was authorized to provide counseling under the supervision of a licensed

social worker and provided such counseling at Happy Hill Farm. (C.R. 104-05).

Brian, under the supervision of a licensed counselor, provided mental health

services to children at Happy Hill Farm, (C.R. 104-05, 116-17, 204-05), provided

counseling to students, (C.R. 104-05, 204-05), performed assessments, (C.R. 104-
                                         11
05, 204-05), prepared treatment plan designs, (C.R. 104-05, 116-17, 204-05),

performed progress evaluations. (C.R. 104-05, 204-05). provided individual

therapy with students for issues including but not limited to: family issues; past

maltreatment; chemical dependency for both past and present abuse of drugs

and/or alcohol; positive coping skills; teaching life skills for anger management,

communication skills, goal setting, positive coping and emotional regulation. (C.R.

104-05, 116-17, 204-05).

       Brian’s affidavit also details the counseling provided to students at Happy

Hill Farm for chemical dependency for both past and present abuse of alcohol

and/or drugs, as well as treatment plans and evaluations. (C.R. 104-06).

       Assuming arguendo that Brian’s statements in Brian’s affidavit are not

otherwise corroborated does not dilute their potency to defeat summary judgment

under Texas practice.3 Trico Technologies Corp. v. Montiel, 949 S.W.2d 308, 310

(Tex. 1997); Acker v. Texas Water Comm’n, 790 S.W.2d 299, 302 (Tex. 1990);

Grynberg v. M-I L.L.C., 398 S.W.3d 864, 875 (Tex. App. -- Corpus Christi 2012,

pet. filed); Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex. App.–

Texarkana, 2000, no pet.); DeWoody v. Rippley, 951 S.W.2d 935, 943 (Tex.


3
 While not required, Brian’s affidavit is corroborated, at least in part, by Happy Hill Farm’s own
Handbook and the testimony of Happy Hill Farm executive Todd Shipman. (C.R. 84, 91-92, 95,
105, 116-17, 204-05); see also Maxwell v. Willis, 316 S.W.3d 680, 685 (Tex. App.
2010)(affidavit with subjective statements corroborated by other evidence properly considered
on summary judgment).


                                                12
App.—Fort Worth 1997, writ dism’d); Longoria v. Texaco, Inc., 649 S.W.2d 332,

335-36 (Tex. App. -- Corpus Christi 1983, no writ); Tabor v. Medical Center Bank,

534 S.W.2d 199, 201 (Tex. App.—Houston [14th Dist.] 1976, no writ); see also

Womack        v.   I&H   Development      Co.,   433   S.W.2d     937,   940    (Tex.

1968)(uncorroborated affidavit may support or defeat summary judgment).

       When the affidavit of Brian is considered, there is some evidence that Happy

Hill Farm was a mental health facility.

       Accordingly, the Court should grant the Petition for Review regarding the

Court of Appeals failure to give due weight in to the affidavit of Brian Dunn in

weighing whether there was a question of fact regarding whether Happy Hill Farm

met the definition of mental health facility.


                                          VII.

     THERE IS SOME EVIDENCE HAPPY HILL FARM MEETS THE
          DEFINITION OF MENTAL HEALTH FACILITY

       There is some evidence that establishes that Happy Hill Farm is a mental

health facility.

       A mental health facility may not terminate an employee for reporting a

violation of law to a law enforcement agency. TEX. HEALTH & SAFETY CODE §

161.134(a).

       A mental health facility is an . . . outpatient mental health facility operated

by the department, a federal agency, a political subdivision, or any person. TEX.

                                           13
HEALTH & SAFETY CODE § 571.003(12). Any “person” encompasses a broad range

of providers, including schools.

       Chapter 571 of the Texas Health and Safety Code provides for the regulation

of mental health facilities. Thus, the Court’s opinion will now be used to thwart the

attempts of the State of Texas to regulate schools that also qualify as mental health

facilities.

       The purpose of Chapter 571 is to provide each person with a severe mental

illness access to humane care and treatment through a variety of methods,

including facilitation treatment in an appropriate setting. TEX. HEALTH & SAFETY

CODE § 571.002(1). The Texas Department of Mental Health and Mental

Retardation is empowered to regulate the treatment of persons with mental illness

and investigate complaints concerning mental health facilities. TEX. HEALTH &

SAFETY CODE § 571.006.

       Happy Hill Farm served troubled youth, had a counseling plan for each

student, and had a staff that included a psychiatrist and psychologist. (C.R. 116-

17). Happy Hill Farm conducted a mandatory initial evaluation and intake study

for each child that included psychological testing and provided young people with

special needs a structured program of professional counsel. (C.R. 116). Other

children were provided regular sessions with Happy Hill Farm’s “Consultant

Psychologist, the Therapist, the Social Worker, the COO, the Academy Principal,



                                         14
and the Directors of Living Units to assist them with family adjustments, personal

problems, and interpersonal relationships.” (C.R. 116).

        Upon acceptance, Happy Hill Farm completed a diagnostic assessment for

the needs of each child or young adult, resulting in an individual treatment plan,

and the plan is periodically re-assessed for modification. (C.R. 116). Happy Hill

Farm implemented these student plans by a qualified staff, consisting of therapists,

teachers, and administration. (C.R. 116-17).

        Happy Hill Farm had “staff, including a consulting psychiatrist, psychologist

and a pediatrician, provide the Academy with complete evaluation and testing for

each potential applicant to Happy Hill Farm Academy/Home.             A program of

follow-up is also part of the learning and counseling plan for each child.” (C.R.

116).

        When he was working for Happy Hill Farm, Brian was finishing his

Master’s Degree and was completing the requirements to become a licensed social

worker. (C.R. 104-05, 202). Brian obtained a Masters Degree in Social Work from

University of Texas at Arlington. (C.R. 202). Brian was authorized to provide

counseling under the supervision of a licensed social worker and provided such

counseling at Happy Hill Farm. (C.R. 104-05). Brian, under the supervision of a

licensed counselor, provided outpatient mental health services to children at Happy

Hill Farm. (C.R. 104-05, 116-17, 204-05). Brian provided counseling to students.

(C.R. 104-05, 204-05). Brian performed assessments. (C.R. 104-05, 204-05). Brian
                                          15
prepared treatment plan designs. (C.R. 104-05, 116-17, 204-05). Brian performed

progress evaluations. (C.R. 104-05, 204-05). Brian provided individual therapy

with students for issues including but not limited to: family issues; past

maltreatment; chemical dependency for both past and present abuse of drugs

and/or alcohol; positive coping skills; teaching life skills for anger management,

communication skills, goal setting, positive coping and emotional regulation. (C.R.

104-05, 116-17, 204-05).

      Happy Hill Farm represents in its handbook that each student has a

counseling plan and mental health professionals are on its staff. (C.R. 116-17).

Brian detailed the mental health care that was provided to Happy Hill Farm

students. (C.R.104-05, 204-05). Other evidence corroborates Brian’s sworn

statements. (C.R. 84, 91-92, 95, 116-17).

      Thus, there is clearly more than a scintilla of evidence that Happy Hill Farm

was an outpatient mental health facility operated by any person, to wit, Happy Hill

Farm. TEX. HEALTH & SAFETY CODE § 571.003.

      Allowing the Court of Appeals opinion to stand regarding the definition of

“mental health facility” will serve as precedent to greatly narrow the regulatory

authority of the State of Texas over mental health facilities.

      Accordingly, the Court should grant the petition for review, hold there is

some evidence that Happy Hill Farm is a mental health facility as defined by



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section 571.003(12), and reverse the summary judgment on the claims brought

under Chapter 161.


                                        VIII.

                          CONCLUSION AND PRAYER

      The Court of Appeals’ opinion, which has now apparently designated for

publication, improperly disregards the competent affidavit of a party when

considering a motion for summary judgment. The Court should grant the petition

to address the conflict with this and other Courts’ opinions on the issue at hand.

      The affidavit in question, as well as other evidence ignored by the Court of

Appeals at least creates a question of fact regarding whether Happy Hill Farm is a

mental health facility.

      Because the issue presented is narrow, this case is ripe for per curiam

disposition.

      Petitioners pray that the Court grant its Petition for Review, reverse

summary judgment on their claims brought under Chapter 161 of the Texas Health

and Safety Code, hold that there is some evidence that Happy Hill Farm was a

mental health facility, and remand the case for trial.


                                        /s/ JASON C.N. SMITH
                                        JASON C.N. SMITH
                                        State Bar No. 00784999

                                        LAW OFFICES OF JASON SMITH

                                          17
                                     600 Eighth Avenue
                                     Fort Worth, Texas 76104
                                     (817) 334-0880 telephone
                                     (817) 334-0898 telecopier
                                     Email: jasons@letsgotocourt.com

                                     ATTORNEYS FOR PETITIONERS
                                     LEISEL MOSELEY, BRIAN DUNN,
                                     AND JANEL DUNN


                     CERTIFICATE OF COMPLIANCE

      Pursuant to Tex. R. App. P. 9.4(i)(3), the undersigned certifies that a copy

of the foregoing document contains 3,059 words as per the computer program

used to draft this document.

                                     /s/ JASON C.N. SMITH
                                     JASON C.N. SMITH
                        CERTIFICATE OF SERVICE

      The undersigned certifies that a copy of the foregoing document was served

upon the attorneys of record of all parties to the above cause in accordance with

the Texas Rules of Appellate Procedure, on this the 23rd day of October, 2015.

B. Prater Monning, II          (via CMRRR 7014 1820 0001 6762 1358)
Wynne & Wynne
137 W. James Street
Wills Point, Texas 75169
                                     /s/ JASON C.N. SMITH
                                     JASON C.N. SMITH




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