      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-01-00184-CV



                           Ebony Lake Healthcare Center, Appellant

                                                v.

             Texas Department of Human Services and Attorney General for the
                                 State of Texas, Appellees



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
         NO. GN001990, HONORABLE DARLENE BYRNE, JUDGE PRESIDING



               Appellee Texas Department of Human Services (the Department) received a request

for release of certain documents regarding appellant Ebony Lake Healthcare Center (Ebony Lake),

pursuant to the Public Information Act. See Tex. Gov’t Code Ann. §§ 552.001-552.353 (West 1994

& Supp. 2001). Ebony Lake informed the Department that it considered some of the documents

privileged. Accordingly, the Department requested an attorney general’s opinion. The Attorney

General found that the documents in question were not privileged and ordered the documents

released. Ebony Lake subsequently sought a declaratory judgment, asking the trial court to declare

the documents subject to a confidentiality privilege; in conjunction with the suit, Ebony Lake also

sought a temporary injunction. The trial court denied the temporary injunction, and Ebony Lake

brings this interlocutory appeal from that ruling. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014

(West Supp. 2001). We will reverse the trial court’s order denying the temporary injunction and

remand the cause to the trial court.
                                           BACKGROUND

                 On February 23, 2000, an attorney representing family members of an Ebony Lake

resident sent an open records request to the Department, seeking among other items all incident

reports sent by Ebony Lake to the Department. On April 6, Ebony Lake informed the Department

that it considered some of the documents privileged from disclosure. Based on this information, the

Department requested an attorney general’s opinion concerning the confidentiality of the documents.

The Attorney General determined that the documents were not subject to the asserted privileges and

should be disclosed.

                 Ebony Lake then filed a declaratory judgment suit, seeking a judicial determination

that the documents were subject to the asserted privileges. In conjunction with the suit, Ebony Lake

sought a temporary restraining order to prevent the release of the documents. On August 20, 2000,

visiting Judge Pete Lowry granted the temporary restraining order and set the matter for a temporary

injunction hearing. Following the hearing, Judge Lowry granted the temporary injunction in part.1

The order signed by the trial court, however, failed to include a date for a trial on the merits and failed

to set a bond.




   1
      Judge Lowry signed three orders, which are not readily reconcilable. One order purports to
deny the temporary injunction in part, one grants it in part, and one is simply titled Order on
Temporary Injunction. The thrust of the orders, however, appears to be that the Department is
enjoined from releasing the documents that were submitted to the court for in camera inspection.
The temporary injunction is denied as to any other documents that may not have been submitted. The
order is further stayed until all appeals or mandamuses are exhausted. For purposes of our
discussion, we refer only to the order granting the temporary injunction and prohibiting the
Department from releasing the documents submitted to the trial court for in camera inspection.

                                                    2
               On January 9, 2001, the Department and the Attorney General filed a joint motion to

dissolve Judge Lowry’s order, claiming that it was void ab initio because it failed to set a trial date

or a bond. Judge Darlene Byrne considered the motion and agreed that the order was void.

               Thereafter, the trial court granted a second temporary restraining order and held a

second temporary injunction hearing. At the hearing, the parties and the trial court agreed to adopt

all evidence and exhibits from the first temporary injunction hearing, and the trial court heard legal

arguments. Following the hearing, the trial court denied the application for temporary injunction.

Ebony Lake requested findings of fact and conclusions of law, which the trial court declined to file.

Ebony Lake now appeals the trial court’s denial of its application for temporary injunction and the

trial court’s ruling that the initial temporary injunction order was void.


                                           DISCUSSION

               Judge Lowry entered an order granting Ebony Lake’s application for temporary

injunction in part on August 28, 2000. More than four months later, the Department and the

Attorney General filed a joint motion to dissolve the temporary injunction, arguing that the order was

void on its face because it failed to include a date for a trial on the merits and failed to set a bond

amount. The trial court agreed and declared the order void. By its second issue, Ebony Lake claims

the trial court erred in declaring the first temporary injunction order void.

               Rule 684 of the Texas Rules of Civil Procedure provides: “In the order granting any

. . . temporary injunction, the court shall fix the amount of security to be given by the applicant.”

Tex. R. Civ. P. 684. This rule has been strictly construed. Before a trial court issues a temporary

injunction, the applicant must execute a bond to the adverse party and file the bond with the court

                                                   3
clerk. Chambers v. Rosenberg, 916 S.W.2d 633, 634 (Tex. App.—Austin 1996, writ denied).

Orders filed without a bond are void. Id.

                Similarly, Rule 683 provides: “Every order granting a temporary injunction shall

include an order setting the cause for trial on the merits with respect to the ultimate relief sought.”

Tex. R. Civ. P. 683. The requirements of Rule 683 are mandatory, and an order that does not comply

with the rule is fatally defective and void. Interfirst Bank San Felipe, N.A. v. Paz Constr. Co., 715

S.W.2d 640, 641 (Tex. 1986); University Interscholastic League v. Torres, 616 S.W.2d 355, 357-58

(Tex. App.—San Antonio 1981, no writ).

                Finally, both the supreme court and this Court have held that “a judgment which

discloses its invalidity on its face is a nullity and may be disregarded anywhere at any time.”

Chambers, 916 S.W.2d at 635; accord Fulton v. Finch, 346 S.W.2d 823, 827 (Tex. 1961). The trial

court correctly applied this rule in declaring the initial temporary injunction order void. We overrule

Ebony Lake’s second issue.

                Having determined that the initial order granting Ebony Lake’s application for a

temporary injunction was void, we next consider whether the trial court erred in denying Ebony

Lake’s second request for a temporary injunction. In an appeal from an order denying a request for

a temporary injunction, our review is confined to the validity of the order denying the injunctive relief.

Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993); Universal Health Servs. v. Thompson, 24

S.W.3d 570, 576 (Tex. App.—Austin 2000, no pet.). The decision to grant or deny the temporary

injunction lies within the sound discretion of the trial court; we will not disturb that decision absent

a clear abuse of discretion. Thompson, 24 S.W.3d at 576. This Court may neither substitute its



                                                    4
judgment for that of the trial court nor consider the merits of the lawsuit. Id. Rather, we view the

evidence in the light most favorable to the trial court’s order, indulging every reasonable inference

in its favor, and determine whether the order was so arbitrary as to exceed the bounds of reasonable

discretion. Id.

                  In a temporary injunction hearing, the trial court assesses whether the applicant has

shown a probable right to recovery and a probable injury in the interim. Id. To establish a probable

right to recovery, an applicant need not prove that it will ultimately prevail in the litigation; rather,

the applicant must show it has a cause of action for which it may be granted relief. Id. Probable right

to recovery includes the element of wrongful conduct. Id. At this preliminary stage, the applicant

need not prove that the information subject to the Public Information Act is privileged. See Center

for Econ. Justice v. American Ins. Ass’n, 39 S.W.3d 337, 343 (Tex. App.—Austin 2001, no pet.).

The applicant need only demonstrate that it is entitled to protection and the status quo should be

maintained until a trial on the merits commences.

                  Ebony Lake claims it established a probable right to recovery because it has a claim

based on the Public Information Act. See Tex. Gov’t Code Ann. §§ 552.001-.353. Ebony Lake

further argues that it established a likelihood of success on the merits by presenting competent,

uncontroverted evidence that the reports at issue were created by a medical peer review committee

and are therefore confidential.

                  The Texas Public Information Act governs access to governmental information. Tex.

Gov’t Code Ann. §§ 552.001-.353. At the heart of the Act is the principle that the public is entitled

to all information “collected, assembled, or maintained by a governmental body.” Holmes v. Morales,



                                                    5
924 S.W.2d 920, 922 (Tex. 1996); accord Tex. Gov’t Code Ann. § 552.002(a)(1) (West Supp.

2001). However, the Act provides that information is excepted from public disclosure if it is

considered confidential by either constitutional or statutory law or by judicial decision. Tex. Gov’t

Code Ann. § 552.101 (West 1994).

               Whether information is subject to disclosure under the Public Information Act and

whether an exception applies are legal questions of statutory construction. City of Garland v. Dallas

Morning News, 22 S.W.3d 351, 357 (Tex. 2000); Center for Econ. Justice, 39 S.W.3d at 347. A trial

court abuses its discretion when it misapplies the law to the facts. Center for Econ. Justice, 39

S.W.3d at 347.

               Ebony Lake claims on appeal that the information sought is made confidential by the

medical peer review committee privilege (“peer review privilege”). Tex. Occ. Code Ann. § 160.007

(West 2001). The Medical Practice Act provides: “[E]ach proceeding or record of a medical peer

review committee is confidential, and any communication made to a medical peer review committee

is privileged.” Tex. Occ. Code Ann. § 160.007(a). Medical peer review committee is defined as


       a committee of a health care entity, the governing board of a health care entity, or the
       medical staff of a health care entity, that operates under written bylaws approved by
       the policy-making body or the governing board of the health care entity and is
       authorized to evaluate the quality of medical and health care services or the
       competence of physicians.


Id. § 151.002(a)(8) (West 2001). The Act defines medial peer review as “the evaluation of medical

and health care services, including evaluation of the qualifications of professional health care

practitioners and of patient care provided by those practitioners.” Id. § 151.002(a)(7).



                                                  6
               In determining whether Ebony Lake established the elements necessary for temporary

injunctive relief, the trial court considered whether Ebony Lake had a probable right to prevail on its

claim of privilege. In support of its claim to a privilege, Ebony Lake presented the documents at issue

for in camera inspection and produced its quality assurance committee policy, along with testimony

from the facility administrator, Del Waggoner. The documents themselves detail three different

accidents involving residents at the facility. They include witnesses’ observations of the incidents,

along with any subsequent action taken by the facility, including any actions directed toward its

employees as a result of the incidents. Finally, the reports include diagnoses of the residents

following their transport to the hospital.

               Waggoner testified that the incident reports were “processed” by the quality assurance

committee and handled through the committee process. Waggoner also testified that at least one of

the documents was created following an investigation performed by an “expression” of the quality

assurance committee. He added that this investigation would have been conducted even if the

committee had elected not to file any incident report with the Department. On cross-examination,

Waggoner conceded that one of the reports would not have been filed with the Department if a

complaint had not been lodged against the facility.

               In response, appellees maintain that because Ebony Lake was required by law to file

its reports with the Department, see Health & Safety Code Ann. § 242.122 (West 2001), the reports

constitute business records, which are public information. See In re Pack, 996 S.W.2d 4, 7 (Tex.

App.—Fort Worth 1999, orig. proceeding.). In addition, appellees argue that Ebony Lake cannot

satisfy the strict requirements mandated by Jordan v. Court of Appeals for the Fourth Supreme



                                                  7
Judicial District, 701 S.W.2d 644 (Tex. 1985), in order to assert a privilege. We will first address

the applicability of Jordan to the facts of this case.

                According to appellees, Jordan mandates that in order for a party to successfully

assert a privilege, the party must establish that the documents at issue were (1) created with

committee impetus and purpose, and (2) not “gratuitously submitted to a committee.” Id. at 648.

Jordan addressed the predecessor to section 161.032 of the Health and Safety Code, or the medical

committee privilege.2 The statutory definition of “medical committee” is broad in scope and

encompasses a medical peer review committee. Memorial Hosp.—The Woodlands v. McCown, 927

S.W.2d 1, 8 (Tex. 1996); Irving Healthcare Sys. v. Brooks, 927 S.W.2d 12, 20 (Tex. 1996). In

considering the scope of the privilege provided by that section, the supreme court narrowly construed

its applicability and held: “[T]his privilege extends to documents that have been prepared by or at the

direction of the committee for committee purposes. Documents which are gratuitously submitted to

a committee or which have been created without committee impetus and purpose are not protected.”

Jordan, 701 S.W.2d at 648.


   2
       That statute provided :

         The records and proceedings of any hospital committee, medical organization
         committee or extended care facility committee established under the state or federal
         law or regulations or under the by-laws, rules or regulations of such organization or
         institution shall be confidential and shall be used by such committee and the members
         thereof only in the exercise of the proper functions of the committee and shall not be
         public records and shall not be available for court subpoena; provided, however, that
         nothing herein shall apply to records made or maintained in the regular course of
         business by a hospital or extended care facility . . . .

Jordan v. Court of Appeals for the Fourth Supreme Judicial District, 701 S.W.2d 644, 646 (Tex.
1985) (quoting Tex. Rev. Civ. Stat. Ann. art. 4447d, § 3 (West 1976)).

                                                   8
               Later, in Irving and McCown, the supreme court considered the scope of the

predecessor to the peer review privilege, now codified in the Occupations Code, and its applicability

to communications regarding the qualifications of a physician. Both Irving and McCown addressed

a narrow set of facts in which the supreme court was asked to determine whether documents

generated by a medical peer review committee in its initial credentialing process are subject to the

peer review privilege. The court broadly applied the peer review privilege and held that “even a

‘gratuitous’ communication to a peer review committee about the qualifications of a physician or the

quality of health care provided by that physician is within the scope of section 5.06 [now section

160.006 of the Occupations Code].” Irving, 927 S.W.2d at 19; accord McCown, 927 S.W.2d at 5.

               In this case, Ebony Lake relies on only the peer review privilege. This privilege is

associated with one discreet and specific type of medical committee—that which performs peer

reviews. Although the peer review committee is encompassed by the more broadly defined “medical

committee,” the supreme court has held that the more specific sub-category of a medical peer review

committee enjoys broad application of the peer review privilege. Accordingly, we consider only

whether Ebony Lake has shown a probable right to recovery based on its assertion of a peer review

privilege. Although the documents at issue were on pre-printed forms developed by the Department,

reports were appended to those forms. The reports indicate the time and location of the occurrences,

the nature of the occurrences, post-occurrence treatment, witnesses to the occurrences, and

descriptions of the incidents. The documents also indicate that the actions of some of the facility’s

medical staff were investigated or reviewed. Moreover, Waggoner testified that the reports were

processed by the quality assurance committee, and Ebony Lake produced a copy of the policy under



                                                 9
which the committee operates. Appellees presented no controverting evidence. Based on this

evidence, we conclude that Ebony Lake has satisfied its burden for purposes of a temporary

injunction. Cf. In re Osteopathic Med. Ctr., 16 S.W.3d 881 (Tex. App.—Fort Worth 2000, orig.

proceeding) (holding trial court abused its discretion in ordering production of report documenting

occurrence at facility, patient’s condition before occurrence, diagnosis of condition after occurrence,

and care and treatment received until transport to hospital); In re WHMC, 996 S.W.2d 409 (Tex.

App.—Houston [14th Dist.] 1999, orig. proceeding) (holding trial court abused its discretion in

ordering medical facility to produce documents even though witness averred that documents were

generated for committee purpose of improving quality of patient care).

               Ebony Lake has also demonstrated a showing of probable harm in the interim. A party

proves irreparable harm by showing an injury for which there can be no real legal measure of damages

or none that can be ascertained with a sufficient degree of certainty. Thompson, 24 S.W.3d at 577.

Ebony Lake argues that disclosure of the reports prior to the trial on the merits would result in a

noncompensable injury. We agree. It would be a hollow victory if, following a trial on the merits,

the trial court were to determine that the reports were indeed privileged, but the reports had already

been disclosed.

               Relying on In re Pack, appellees counter that because Ebony Lake was required by

law to disclose the reports to the Department, they have failed to demonstrate any injury. Pack was

a mandamus action, in which the second court of appeals was called upon to decide whether nursing

home investigation reports prepared by the Texas Department of Human Services, along with a

nursing home’s responsive plans of correction, and the testimony of the Department’s surveyors



                                                  10
regarding their investigations, were excluded from discovery under the peer review privilege. 996

S.W.2d at 5. The nursing home argued that the records were prepared from confidential information

collected from the nursing home’s peer review committee, and that the Department was an agent of

this committee when it prepared its reports. However, in that proceeding the nursing home did not

segregate those documents that it claimed included confidential information for in camera inspection,

as it was required to do. The court concluded that because the Department and the nursing home

were required by law to make the documents at issue public, the documents were discoverable. In

re Pack, 996 S.W.2d at 7. The court further held, “The mere fact that the Nursing Home’s peer

review committee may have reviewed the TDHS documents does not make them privileged.” Id.

                In this case, the nursing home did segregate the questionable documents for in camera

inspection. Furthermore, the documents were not created by the Department, as was the case in

Pack, but were created by the quality assurance committee. We need not decide at this juncture

whether In re Pack applies to the facts of this case and renders the reports at issue subject to

disclosure. The facts before us, however, are sufficiently distinguishable to establish a bona fide issue

that should be addressed at a trial on the merits. And because Ebony Lake has shown clear evidence

of irreparable injury, its certainty of victory need not be as stringently examined. See Southwestern

Bell Tel. Co. v. Public Util. Comm’n, No. 3-01-114-CV, slip op. at 11 (Tex. App.—Austin July 26,

2001, no pet. h.) (quoting Developments in the Law—Injunctions, 78 Harv. L. Rev. 994, 1056

(1965)). As this Court has acknowledged, “Clear evidence of irreparable injury should result in a less

stringent requirement of certainty of victory; greater certainty of victory should result in a less




                                                   11
stringent requirement of proof of irreparable injury.” Id. In this case, the sliding scale measures in

Ebony Lake’s favor. Ebony Lake’s first issue is sustained.


                                          CONCLUSION

                We hold that the initial August 20 temporary injunction order was fatally defective and

therefore void; accordingly, we overrule Ebony Lake’s second issue. We conclude, however, that

Ebony Lake established a probable right to recovery and a probable injury in the interim and thus

satisfied the prerequisites for a temporary injunction. We therefore sustain its first issue and reverse

the trial court’s order denying the application for a temporary injunction, and remand the cause to the

trial court for issuance of a temporary injunction or for further proceedings consistent with our

opinion.




                                                Bea Ann Smith, Justice

Before Justices Kidd, B. A. Smith and Puryear

Reversed and Remanded

Filed: November 29, 2001

Publish




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