                                                                                         ACCEPTED
                                                                                     03-15-00325-CV
                                                                                             8371741
                                                                          THIRD COURT OF APPEALS
                                                                                     AUSTIN, TEXAS
                                                                               12/28/2015 9:57:31 AM
                                                                                   JEFFREY D. KYLE
                                                                                              CLERK
                         No. 03-15-00325-CV
  _______________________________________________________________
                                                          FILED IN
                                                   3rd COURT OF APPEALS
                     IN THE COURT OF APPEALS            AUSTIN, TEXAS
                FOR THE THIRD DISTRICT OF TEXAS 12/28/2015 9:57:31 AM
                             AT AUSTIN                 JEFFREY D. KYLE
                                                            Clerk
  _______________________________________________________________

        TEXAS HEALTH AND HUMAN SERVICES COMMISSION
                          Appellant,

                                     v.
                       JESSICA LUKEFAHR
                             Appellee.
 ________________________________________________________________

              On Appeal from the 345th Judicial District Court
                         of Travis County, Texas
                     Cause No. D-1-GN-14-002158
               The Honorable Stephen Yelenosky Presiding
__________________________________________________________________

           APPELLANT’S OPPOSED MOTION TO STRIKE
                MATERIAL OUTSIDE THE RECORD
__________________________________________________________________

KEN PAXTON                                KARA HOLSINGER
Attorney General of Texas                 Assistant Attorney General
                                          State Bar No. 24065444
CHARLES E. ROY                            OFFICE OF THE ATTORNEY GENERAL
First Assistant Attorney General          OF TEXAS
                                          Administrative Law Division
JAMES E. DAVIS                            P.O. Box 12548, Capitol Station
Deputy Attorney General for Civil         Austin, Texas 78711-2548
Litigation                                Telephone: (512) 475-4203
                                          Facsimile: (512) 320-0167
DAVID A. TALBOT, JR.                      kara.holsinger@texasattorneygeneral.gov
Chief, Administrative Law Division
                                          COUNSEL FOR APPELLANT
TO THE HONORABLE JUDGE OF SAID COURT:

      NOW COMES Appellant Texas Health and Human Services Commission

(“HHSC”) and files this Opposed Motion to Strike Material Outside the Record.

Appellee’s Response Brief of December 17, 2015 includes “Appendix B,” which is

a partial transcription of an electronic recording of a Health and Human Services

Commission Medical Care Advisory Committee meeting of June 9, 2015. HHSC

moves to strike Appendix B, and those portions of Appellee’s Reply Brief that rely

on Appendix B, because it was not presented to or relied on by the trial court in

rendering its judgment. Appendix B is not part of the Clerk’s Record or otherwise

made a part of the record on appeal.

      Texas Rule of Appellate Procedure 34.1 states that “[t]he appellate record

consists of the clerk’s record and, if necessary to the appeal, the reporter’s record.”

Appendix B does not appear in, nor is it referenced in, any pleading that is a part of

the clerk’s record. This Court may only review the record as filed and may not

consider documents that are not in the record and were not considered by the trial

court. Warriner v. Warriner, 394 S.W.3d 240, 254 (Tex. App.—El Paso 2012, no

pet.) (“Appellate courts cannot review documents not included in the record.

Documents attached to a brief as an exhibit or an appendix, but not appearing in

the record, cannot be considered on appellate review, save for limited exceptions

not relevant here.”); Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex.

App.—Dallas 2005, pet. denied) (“[A]n appellate court cannot consider documents
or hearings that are cited in the brief and attached as appendices if they are not

formally included in the record on appeal.”). As Appendix B does not appear in the

record, this Court should not consider it.

                                     PRAYER

      Accordingly, as Appendix B to Appellee’s Response Brief of December 17,

2015 consists of material not included in the record on appeal, this Motion to

Strike should be granted and the Court should not consider Appendix B or the

arguments in Appellee’s Response Brief supported by this document.

                                        Respectfully submitted,

                                        KEN PAXTON
                                        Attorney General of Texas

                                        CHARLES E. ROY
                                        First Assistant Attorney General

                                        JAMES E. DAVIS
                                        Deputy Attorney General for Civil
                                        Litigation

                                        DAVID A. TALBOT, JR.
                                        Chief, Administrative Law Division

                                        /s/ Kara Holsinger
                                        KARA HOLSINGER
                                        Assistant Attorney General
                                        State Bar No. 24065444
                                        Office of the Attorney General of Texas
                                        Administrative Law Division
                                        P.O. Box 12548, Capitol Station
                                        Austin, Texas 78711-2548

                                             2
                                      Telephone: (512) 475-4203
                                      Facsimile: (512) 320-0167
                                      kara.holsinger@texasattorneygeneral.gov
                                      Attorneys for Appellant


                        CERTIFICATE OF CONFERENCE

      The undersigned counsel for Appellant certifies that she has conferred with

counsel for Appellee regarding the foregoing Motion to Strike and has been

advised that Appellee opposes the motion.

                                            /s/ Kara Holsinger
                                            KARA HOLSINGER

                          CERTIFICATE OF SERVICE

      A true and correct copy of the foregoing Motion to Strike was served via e-

serve and e-mail on this the 28th day of December, 2015, to the following:

Maureen O’Connell
Texas Bar No. 00795949
Southern Disability Law Center
1307 Payne Avenue
Austin, Texas 78757
Telephone: 512-458-5800
Facsimile: 512-458-5850
moconnell458@gmail.com

Attorney for Appellee
                                      /s/ Kara Holsinger
                                      KARA HOLSINGER
                                      Assistant Attorney General




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