      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-15-00061-CV



                                          In re Teladoc, Inc.


                       ORIGINAL PROCEEDING FROM TRAVIS COUNTY



                   ORDER AND MEMORANDUM OPINION


                 The Hon. Gisela D. Triana and Teladoc, Inc., have filed a motion under

section 2001.038, subsection (f), of the Administrative Procedure Act (APA) requesting us

to grant transfer of a cause currently pending before Judge Triana and docketed there as

Cause No. D-1-GN-15-000238.1 In that cause, Teladoc asserts a claim for declaratory relief under

APA section 2001.038 challenging the validity of the Texas Medical Board’s January 16, 2015

“emergency” rule purporting to amend 22 Tex. Admin. Code § 190.8(1)(L), effective immediately,

without complying with the APA’s notice-and-comment rulemaking procedures.2                       TMB’s



        1
          See Tex. Gov’t Code § 2001.038(f) (“A Travis County district court in which an action is
brought under this section, on its own motion or the motion of any party, may request transfer of the
action to the Court of Appeals for the Third Court of Appeals District if the district court finds that
the public interest requires a prompt, authoritative determination of the validity or applicability of
the rule in question and the case would ordinarily be appealed. After filing of the district court’s
request with the court of appeals, transfer of the action may be granted by the court of appeals if it
agrees with the findings of the district court concerning the application of the statutory standards to
the action. On entry of an order by the court of appeals granting transfer, the action is transferred
to the court of appeals for decision, and the validity or applicability of the rule in question is subject
to judicial review by the court of appeals. . . . ”).
        2
            See id. § 2001.038(a)-(c).
“emergency” rule is substantively similar to the informal “rule” this Court held invalid—for failure

to comply with the APA’s rulemaking procedures—in Cause No. 03-13-00211-CV, Teladoc, Inc.

v. Texas Medical Board and Nancy Leshikar, in her Official Capacity as General Counsel of the

Texas Medical Board. Teladoc urges that TMB’s current claim of “emergency” is dubious for a

variety of reasons, including that Teladoc (whose business model is the evident target of the

rule change) has operated in Texas since 2005 and that TMB had even agreed to stay enforcement

of its informal rule during the prior litigation.

                In Cause No. D-1-GN-15-000238, Teladoc also seeks temporary and permanent

injunctive relief to restrain TMB’s enforcement of the “emergency” rule. Judge Triana has already

granted a temporary restraining order to that effect, and a hearing on Teladoc’s request for a

temporary injunction is currently scheduled for Monday, February 2, 2015. With its motion to

transfer, Teladoc also petitions this Court, with accompanying motion to expedite, for temporary

injunctive relief staying all further trial-level court proceedings in Cause No. D-1-GN-15-000238,

including the scheduled temporary-injunction hearing before Judge Triana, in order to preserve our

jurisdiction.

                On the record presented, we deny the motion to transfer without prejudice to refiling.

We dismiss the accompanying request for injunctive relief and motion to expedite as moot.



                                                __________________________________________

                                                Bob Pemberton, Justice

Before Justices Puryear, Pemberton, and Field

File: January 30, 2015

                                                    2
