                                                                                          ACCEPTED
                                                                                     03-14-00548-CV
                                                                                            3619363
                                                                           THIRD COURT OF APPEALS
                                                                                      AUSTIN, TEXAS
                                                                               12/30/2014 3:31:38 PM
                                                                                   JEFFREY D. KYLE
                                                                                              CLERK
                              No. 03-14-00548-CV

                         In the Third Court of Appeals      FILED IN
                                 Austin, Texas       3rd COURT OF APPEALS
                                                          AUSTIN, TEXAS
                      ______________________________
                                                     12/30/2014 3:31:38 PM
                                                         JEFFREY D. KYLE
       M & M ORTHODONTICS P.A., HARLINGEN FAMILY DENTISTRY  , P.C.,
                                                               Clerk
                                                        Appellants,
                                       v.

  TEXAS HEALTH AND HUMAN SERVICES COMMISSION, DR. KYLE JANEK, IN HIS
 OFFICIAL CAPACITY AS THE EXECUTIVE COMMISSIONER OF TEXAS HEALTH AND
 HUMAN SERVICES COMMISSION, CAROLE HURLEY, CHIEF ADMINISTRATIVE LAW
JUDGE FOR THE TEXAS HEALTH AND HUMAN SERVICES COMMISSION, JUDGE KEITH
 GRANTHAM OF THE APPEALS DIVISION OF TEXAS HEALTH AND HUMAN SERVICES
 COMMISSION, AND RICK GILPIN, ADMINISTRATIVE LAW JUDGE OF THE APPEALS
        DIVISION TEXAS HEALTH AND HUMAN SERVICES COMMISSION,
                                                 Appellees.
                   ______________________________

    On Appeal from the 345th Judicial District Court of Travis County, Texas
                  Trial Court Cause No. D-1-GN-14-001109
                     ______________________________

                UNOPPOSED JOINT MOTION TO EXTEND
                  TIME TO FILE APPELLEES’ BRIEF
                    ______________________________


TO THE HONORABLE JUDGES OF THE THIRD COURT OF APPEALS:

      Now come Appellees, Administrative Law Judges Carole Hurley, Keith

Grantham, and Rick Gilpin (“the ALJ Appellees”); and Texas Health and Human

Services Commission (“HHSC”) and Dr. Kyle Janek, in his official capacity as the

Executive Commissioner of Texas Health and Human Services Commission

(“Dr. Janek”) (collectively, “the HHSC Appellees”), and file this Unopposed Joint
Motion for Extension of Time to File Appellees’ Brief and would show this as

follows:

      1.     There is no specific deadline to file this motion to extend time. See Tex.

R. App. Proc. 38.6(d). The Appellants are unopposed to this Motion. Appellees’

current deadline to file their briefs is December 31, 2014.

      2.     Appellees request a sixty-day extension of time to file their Brief; that

would extend Appellees’ deadline up to and including March 2, 2015. This is

Appellees’ first request for an extension of time.

      3.     Recent developments in the underlying administrative proceedings

from which this appeal arises directly impact the current status of this appeal. On

December 23, 2014, the Texas Health and Human Services – Office of Inspector

General filed Notices of Nonsuit of the underlying administrative actions that were

pending against Appellants in HHSC Appeals, before ALJ Gilpin.        Attached hereto

as Exhibits “A” and “B” are copies of the Notices of Nonsuit filed in HHSC Appeals.

      4.     The filing of these Notices of Nonsuit by the HHSC-Office of Inspector

General in the underlying administrative proceedings renders the issues raised by

Appellants in this appeal moot since the issues presented are no longer “live.” See

Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005). Any opinion issued

by the Court in this appeal would only be advisory in nature and improper. See

Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).



                                                                            Page 2 of 8
       5.     Appellees anticipate these recent developments will alleviate the need

for further briefing by the parties on these issues.

       6.     Appellees anticipate the parties will be filing a joint motion to dismiss

in the near future. Appellees need additional time to confer with Appellants and

their counsel.

       7.     In the alternative, should additional briefing be needed, Appellees will

need additional time to file their Brief so that they can coordinate and submit a single

brief to the Court and because each of the undersigned counsel have litigation

schedules that make such coordination more difficult.

       8.     In particular, the undersigned counsel for the HHSC Appellees is

currently handling several litigation matters, including State of Texas v. Xerox

Corporation, et al., Cause No. D-1-GV-14-000581, in Travis County District Court;

and Texas Health and Human Services Commission v. Xerox State Healthcare, LLC,

Cause No. D-1-GN-14-003203, in Travis County District Court. In both matters,

counsel for the HHSC Appellees has had to – and will continue to have to – prepare

responsive pleadings, respond to discovery, and prepare for various hearings.

Because of these circumstances, as well as the closure of the Offices of the Attorney

General over the upcoming holidays, the undersigned counsel for the HHSC

Appellees respectfully requests that the Court grant Appellees’ requested extension

to file the Brief.



                                                                             Page 3 of 8
      9.     The undersigned counsel for the ALJ Appellees is also handling several

litigation matters, including Mark Anthony Brewing, Inc. v. Texas Alcoholic

Beverage Commission, Cause No. D-1-GN-13-003570 (a constitutional challenge to

a statute and two Commission rules set for trial on March 3 and 4, 2015), and Live

Oak Brewing Company, LLC, et al. v. Texas Alcoholic Beverage Commission, et al.,

Cause No. D-1-GN-14-005151 (another constitutional challenge to a recently-

enacted statute currently in the discovery phase). During the time for preparation

of the Appellees’ Brief, the undersigned counsel for the ALJ Appellees is also

responsible for preparation and presentation of argument in Jamie Harvel and the

Austin Police Association v. Texas Department of Insurance-Division of Workers’

Compensation and Commissioner Rod Bordelon, in his official capacity, Case

No. 13-14-00095-CV, on January 5, 2015 and for assisting the Texas Low-Level

Radioactive Waste Disposal Compact Commission in preparing proposed and

amended rules for publication in the Texas Register in the very near future.   Also,

during the current period for preparation of the Appellees’ Brief, the Offices of the

Attorney General are closed for several days because of holidays.

      10.    As stated above, Appellants do not oppose this Motion.




                                                                           Page 4 of 8
                          III. CONCLUSION AND PRAYER

      WHEREFORE, PREMISES CONSIDERED, the ALJ Appellees and the

HHSC Appellees respectfully request that the Court grant Appellees an extension of

their deadline to file their Appellees’ Brief of 60 days, that is, up to and including

March 2, 2015, and that the Court grant them such other and further relief to which

they have shown themselves to be entitled.

                                 Respectfully submitted,

                                 GREG ABBOTT
                                 Attorney General of Texas

                                 DANIEL T. HODGE
                                 First Assistant Attorney General

                                 JOHN SCOTT
                                 Deputy Attorney General for Civil Litigation




                                                                            Page 5 of 8
/s/ Raymond C. Winter
RAYMOND C. WINTER
State Bar No. 21791950
Chief, Civil Medicaid Fraud Division
Assistant Attorney General
Raymond.Winter@texasattorneygeneral.gov
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
P.O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 936-1709
Facsimile:    (512) 499-0712-0167

Attorneys for Appellees, Texas Health & Human
Services Commission and Dr. Kyle Janek

/s/ Karen L. Watkins
KAREN L. WATKINS
State Bar No. 20927425
Assistant Attorney General
Administrative Law Division
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-4208
Facsimile:    (512) 320-0167
karen.watkins@texasattorneygeneral.gov

Attorneys for the Appellees, Administrative Law
Judges Carole Hurley, Keith Grantham, and Rick
Gilpin




                                       Page 6 of 8
                      CERTIFICATE OF CONFERENCE

      The undersigned certifies he contacted counsel for Appellants, Jason Ray,
December 9, 2014, by telephone, on behalf of the HHSC Appellees, THHSC and
Dr. Janek, and on behalf of counsel for the ALJ Appellees, Karen L. Watkins.
Mr. Ray represented that the Appellants are not opposed to the granting of the relief
requested in this Joint Motion.


                                /s/Raymond C. Winter
                                RAYMOND C. WINTER
                                Assistant Attorney General


                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing document has

been served on this the 30th day of December, 2014 on the following:

J.A. Canales                           VIA: File & ServeXpress and E-mail
State Bar No. 03737000
CANALES & SIMONSON, P.C.
2601 Morgan Ave.
P.O. Box 5624
Corpus Christi, Texas 78465-5624
Telephone: (361) 883-0601
Facsimile: (361) 884-7023
tonycanales@canalessimonson.com




                                                                           Page 7 of 8
Jason Ray                           VIA: File & ServeXpress and E-mail
State Bar NO. 24000511
RIGGS, ALESHIRE & RAY, P.C.
700 Lavaca, Suite 920
Austin, Texas 7870
Telephone: (512) 457-9806
Facsimile: (512) 457-9866
jray@r-alaw.com

Attorneys for Appellants M&M Orthodontics, P.A., Harlingen
Family Dentistry, P.C. and Antoine Dental Center




                              /s/ Karen L. Watkins
                              KAREN L. WATKINS
                              Assistant Attorney General




                                                                  Page 8 of 8
EXHIBIT A
EXHIBIT B
