     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                  NO. 03-12-00354-CV



Texas Health and Human Services Commission; Tom Suehs, in his official capacity as the
Commissioner of Health and Human Services; and Billy Millwee, in his official capacity as
                    the Texas State Medicaid Director, Appellants

                                           v.

    Advocates for Patient Access, Inc.; John Doe A, by and through his next friend,
Laura Garza; John Doe B, by and through his next friend, Nayeli Garza; and Jane Doe A,
              by and through her next friend, Isabel Tijerina, Appellees


   FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
      NO. D-1-GN-12-001297, HONORABLE PAUL DAVIS, JUDGE PRESIDING




                                  NO. 03-12-00606-CV



Texas Health and Human Services Commission; Tom Suehs, in his official capacity as the
Executive Commissioner of Health and Human Services; and Billy Millwee, in his official
                 capacity as the Texas Medicaid Director, Appellants

                                           v.

    Advocates for Patient Access, Inc.; John Doe A, by and through his next friend,
Laura Garza; John Doe B, by and through his next friend, Nayeli Garza; and Jane Doe A,
              by and through her next friend, Isabel Tijerina, Appellees


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
   NO. D-1-GN-12-001297, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING
                                          OPINION


               In these two interlocutory appeals, the Texas Health and Human Services

Commission, Tom Suehs in his official capacity as the Commissioner of Health and

Human Services, and Billy Millwee in his official capacity as the Texas State Medicaid

Director (collectively, “HHSC”) appeal (1) a temporary-injunction order issued on behalf of

Advocates for Patient Access, Inc. and others1 (collectively, “Advocates”) and (2) a subsequent

temporary-injunction order that expanded the scope of injunctive relief and corrected procedural

defects in the original temporary-injunction order. We will dismiss the appeal of the first

temporary-injunction order as moot and affirm the second order as modified.


                                        BACKGROUND

               Advocates filed a declaratory-judgment action against HHSC, seeking a declaration

that an HHSC Medical Transportation Program (MTP) rule is invalid and asking the trial court to

permanently enjoin its enforcement. See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West

2008) (Uniform Declaratory Judgment Act); Tex. Gov’t Code Ann. § 2001.038 (West 2008)

(authorizing declaratory-judgment action to determine validity or applicability of agency rule); see

also 1 Tex. Admin. Code § 380.207(4) (2012) (Tex. Health & Human Servs. Comm’n, Program

Limitations), amended, 37 Tex. Reg. 10192 (Dec. 28, 2012) (imposing requirement of

accompaniment by parent or guardian for transportation to eligible recipients under age of 15). At




       1
          Other plaintiffs are John Doe A, by and through his next friend, Laura Garza; John Doe B,
by and through his next friend, Nayeli Garza; and Jane Doe A, by and through her next friend,
Isabel Tijerina.

                                                 2
the time of the proceedings below, the rule at issue—section 380.207(4) of the regulations governing

the MTP—provided that transportation to Medicaid services would not be available to recipients

under the age of 15 unless accompanied by a parent or guardian (subject to certain exceptions).2

1 Tex. Admin. Code § 380.207(4) (2012), amended, 37 Tex. Reg. 10192 (Dec. 28, 2012).

                Advocates challenged the validity of section 380.207(4) as applied to participants in

the state’s Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Program because

children under the age of 15 are statutorily eligible for EPSDT services if they are accompanied at

the services by a parent, guardian, or “another adult, including an adult related to the child,

authorized by the child’s parent or guardian to accompany the child.” Tex. Human Res. Code Ann.

§ 32.024(s) (West Supp. 2012).        Because section 380.207(4) prescribed a more restrictive

accompaniment requirement for transportation, Advocates asserted that the rule (1) deprived eligible

Medicaid recipients of the opportunity to participate in services mandated by federal and state




       2
           The relevant portion of section 380.207 provided:

       Recipients are not eligible to receive medical transportation services under the
       following circumstances:
              ....
              (4)     The recipient is under 18 years of age and not accompanied by a
                      parent or legal guardian, unless one of the following conditions
                      exists:
                      (A)     the recipient is aged 15 through 17 years of age and presents
                              the parent’s or legal guardian’s signed, written consent for the
                              transportation services to the Regional MTP office or the
                              transportation contractor; and/or
                      (B)     the treatment to which the minor is being transported is such
                              that the law extends confidentiality to the minor for treatment.

1 Tex. Admin. Code § 380.207(4) (2012) (Tex. Health & Human Servs. Comm’n, Program
Limitations), amended, 37 Tex. Reg. 10192 (Dec. 28, 2012).

                                                  3
law and (2) conflicted with federal regulations and state statutes requiring the provision of

necessary transportation services to eligible Medicaid recipients. See 42 U.S.C. § 1396a(13)

(governing contents of state plans for medical assistance); 42 U.S.C. § 1396d(a), (r)(5) (defining

“medical assistance” and “early and periodic screening, diagnostic, and treatment services”);

42 C.F.R. §§ 431.53 (“A State plan must . . . [s]pecify that the Medicaid agency will ensure

necessary transportation for beneficiaries to and from providers.”), 441.62(a) (“The agency must

offer to the family . . . [n]ecessary assistance with transportation as required under § 431.53.”);

Tex. Gov’t Code Ann. §§ 531.0057 (West 2012) (“The commission shall provide medical

transportation services for clients of eligible health and human services programs.”), .02414 (West

2012) (defining “medical transportation program”); Human Res. Code § 32.024(s) (authorizing

reimbursement for EPSDT services for child under age 15 if accompanied by parent, guardian, or

authorized adult to provider visit or screening). With respect to the individual defendants, Suehs and

Millwee, Advocates further asserted that enforcement of the MTP rule is ultra vires because the rule

conflicts with the express language of the state statutes governing the EPSDT program and the MTP.

               Although section 380.207 of the MTP rules had been on the books for at least a

decade and had previously been unchallenged, Advocates asserted that the rule was never enforced

as a bar to eligibility for transportation to EPSDT services as long as a child under the age of 15 was

accompanied by a parent or guardian or any other adult authorized by a parent or guardian.

Consequently, although clearly contrary to section 380.207’s terms, a practice developed whereby

parents and guardians would authorize employees of EPSDT service providers to accompany their

children during transportation services and at visits and screenings.




                                                  4
                In March 2012, however, after discovering a perceived “overutilization” of MTP

services in South Texas, HHSC sent EPSDT service providers a letter stating an intent to enforce

the rule strictly. The letter also interpreted section 32.024(s)(2) of the human resources code as

requiring that a child younger than age 15 be accompanied by the child’s parent or guardian or

another authorized adult related to the child at an EPSDT visit or screening. Cf. Human Res. Code

§ 32.024(s)(2) (providing that child can be accompanied at such services by “another adult, including

adult related to the child, authorized by child’s parent or guardian”). In response to the March 2012

letter, Advocates for Patient Access, Inc. was formed as an advocacy group for patients and

providers, and the underlying lawsuit was filed by the group and the individual plaintiffs (at least one

of whom is a member of the group) to challenge HHSC’s actions.

                Ancillary to the declaratory-judgment and permanent-injunction actions, Advocates

sought a temporary injunction prohibiting HHSC from enforcing section 380.207(4) and enjoining

HHSC from applying a narrow interpretation of section 32.024(s)(2) pending a final disposition of

the suit on the merits. Following an evidentiary hearing, the trial court signed a temporary-injunction

order on May 17, 2012, that, in effect, precluded HHSC from applying the MTP rule and from

deviating from the requirements of the EPSDT statute (“the May injunction order”). See Tex. Civ.

Prac. & Rem. Code Ann. § 65.021 (West 2008) (district court’s jurisdiction to grant injunctive

relief). Specifically, the trial court enjoined HHSC from:


        (a)     denying eligibility of a Medicaid recipient under the age of 18 for medical
                transportation services because a parent or guardian does not accompany the
                Medicaid recipient during the provision of such transportation services,
                provided that the Medicaid recipient’s parent or guardian authorizes any other
                adult to accompany the child; or



                                                   5
       (b)     requiring as a condition for eligibility for reimbursement for any visit or
               screening provided under the early and periodic screening, diagnosis and
               treatment program of the Medicaid program that a child younger than fifteen
               years of age be accompanied by the child’s parent or guardian if the child’s
               parent or guardian has authorized any other adult to accompany the child to
               the visit or screening.


But the May injunction order did not include provisions setting a bond or a trial date as required by

Texas Rules of Civil Procedure 683 and 684. Accordingly, HHSC filed an interlocutory appeal

contending that the May injunction order was void ab initio due to these procedural defects. That

appeal was assigned Cause No. 03-12-00354-CV in this Court.

               Although enforcement of the May injunction order was superseded upon HHSC’s

filing of the notice of appeal, see Tex. Civ. Prac. & Rem. Code Ann. § 6.001(a), (b) (West 2002)

(state agencies exempt from appeal bond), HHSC voluntarily refrained from enforcing section

380.207(4)’s accompaniment requirement and instead instituted a process by which parents and

guardians could designate another adult to accompany their children during transportation to

services. HHSC also proposed amendments to the MTP accompaniment rule that would expand its

scope to allow parents and guardians to designate another adult to accompany their children during

transportation as long as such other adult was not employed by the medical-services provider.

               Based on these developments, Advocates filed an “Application for Expanded

Temporary Injunction,” seeking to expand the prior injunction to preclude HHSC from employing

what it called an “overly burdensome” process for EPSDT participants to receive authorization for

transportation services. Advocates alleged that the procedures HHSC implemented—including

requiring use of a specified authorization form that identified the authorized adult and provided his

or her contact information and requiring that a phone call be generated to obtain authorization for

                                                 6
transportation for each child and each EPSDT session—were too onerous and resulted in eligible

recipients not being provided EPSDT services. Advocates also complained about the proposed

amendments to section 380.207(4) and asked that HHSC be enjoined from enforcing any new rule

that limited the persons authorized to accompany a Medicaid child to an EPSDT visit or during

transportation to such visit. Finally, Advocates requested that the court enjoin HHSC from enforcing

administrative penalties against certain providers based on claims that those providers had violated

unrelated rules prohibiting providers from offering inducements designed to influence a Medicaid

recipient’s decision regarding the selection of a provider or the receipt of a good or service under

Medicaid. See 1 Tex. Admin. Code § 371.27 (2012) (Tex. Health & Human Servs. Comm’n, Office

of Inspector General). Despite obvious procedural defects in the May injunction order, however,

Advocates did not request that the May injunction order be dissolved.

               After another evidentiary hearing, the trial court signed a “Modified Temporary

Injunction” on August 31, 2012, (“the August injunction order”) that included the same relief granted

in the May injunction order—parts (a) and (b) quoted above—and also set a bond amount and a trial

date as required by the rules of civil procedure. The August injunction order further expanded the

scope of injunctive relief by enjoining HHSC from engaging in the following conduct:

       (c)     requiring the use of any particular written authorization form for MTP
               transportation services that was not regularly used before May 3, 2012, which
               is the date of the Court’s temporary restraining order; and

       (d)     requiring any person acting on behalf of a Medicaid-eligible child from
               having to contact any person, prior to the provision of transportation services,
               in order to designate an authorized adult.




                                                  7
The trial court denied all other temporary relief requested by Advocates. Although it did not

expressly dissolve the prior injunction, the August injunction order manifested an intent to correct

the procedural defects in the May injunction order, to carry forward the substantive provisions of the

May injunction order, and to expand the scope of injunctive relief to include the new authorization

processes adopted following issuance of the May injunction order.

                    HHSC perfected a separate interlocutory appeal from the August injunction order,

which was assigned Cause No. 03-12-00606-CV in this Court and was consolidated with the earlier

appeal for purposes of oral argument due to the overlapping issues. Cf. generally Tex. R. App. P.

(“TRAP”) 27.3 (“After an order or judgment in a civil case has been appealed, if the trial court

modifies the order or judgment . . . the appellate court must treat the appeal as from the subsequent

order or judgment and may treat actions relating to the appeal of the first order or judgment as

relating to the appeal of the subsequent order or judgment.”), 29.6 (“While an appeal from an

interlocutory order is pending, on a party’s motion or on the appellate court’s own initiative, the

appellate court may review . . . a further appealable interlocutory order concerning the same subject

matter . . . .”).


                                             DISCUSSION

                    On appeal, HHSC challenges the validity of the August injunction order on

substantive and procedural grounds, arguing that (1) pursuant to TRAP Rule 29.5, the trial court

lacked authority to modify the May injunction order while it was on appeal, (2) the August injunction

order is void because it was issued while the May injunction order was on appeal and had been

superseded by virtue of section 6.001 of the civil practice and remedies code, (3) the August



                                                    8
injunction order is void because it lacks the specificity required by Civil Procedure Rule 683, (4) the

trial court abused its discretion in granting the modified temporary injunction because there is

insufficient evidence of probable, imminent, and irreparable harm, (5) the trial court abused its

discretion in issuing the modified temporary injunction because Advocates failed to meet its burden

of establishing a probable right to recovery, and (6) parts (c) and (d) of the modified injunction

improperly attempt to control state action, which is precluded by the doctrine of sovereign immunity.

                Also at issue on appeal is what effect the August injunction order has on the merits

of the pending appeal of the May injunction order. Advocates contends that the trial court was

authorized to correct the procedural defects in the May injunction order and that, when it did so, the

modified order superseded the original order, mooting the appeal from that order. HHSC argues that

it is still entitled to a determination that the May injunction order was void ab initio because the trial

court’s August injunction order did not expressly dissolve that order—nor was the court asked to

dissolve it. HHSC contends that, without an adjudication on the merits of the appeal from the May

injunction order, there remains a question about whether it was subject to the terms of that injunction

between May 17, 2012, and August 31, 2012.3


        3
         An additional mootness issue was raised at oral argument based on amendments to section
380.207(4) that became effective January 1, 2013. As of that date, section 380.207 was amended
to expand the categories of persons who are eligible to accompany children under 15 years of age
while they are being transported to receive medical services and now includes “another adult
authorized by the parent or guardian” as long as that person is not affiliated with the medical-services
provider. See 1 Tex. Admin. Code § 380.207(4) (adopted December 28, 2012) (Tex. Health
& Human Servs. Comm’n, Program Limitations) (citing 1 Tex. Admin. Code § 354.1133, which also
became effective January 1, 2013, and governs parental accompaniment for minors receiving
services under state’s EPSDT Program). Because the amended rule became effective while these
appeals were pending—and Advocates subsequently amended its pleadings to assert claims under
the amended rule—HHSC argues that both the May and August injunctions should be dissolved
because they were issued based on a rule that no longer exists. Advocates contends, however, that

                                                    9
                We will consider the procedural challenges before addressing HHSC’s challenges to

the merits of injunctive relief.


Procedural Challenges

        1.      Does the August Injunction Order Violate TRAP Rule 29.5 or HHSC’s
                Supersedeas Rights?

                As a threshold matter, HHSC contends that the August injunction order is void

because it was issued after the May injunction order was appealed, did not dissolve or vacate the

prior injunction order, and included at least some relief that was substantively identical to the relief

granted in the prior injunction order, which was superseded pending resolution of the previously

filed appeal. Under these circumstances, HHSC argues, the August injunction order is void because

it violates TRAP Rule 29.5 and HHSC’s duly-invoked supersedeas rights in the appeal from the May

injunction order.

                TRAP Rule 29.5 affirms the trial court’s continuing jurisdiction over a case while an

appeal from an interlocutory order is pending. See Tex. R. App. P. 29.5. The rule expressly

authorizes the trial court to make further orders, including one dissolving the order complained of

on appeal, and to proceed with a trial on the merits, unless otherwise prohibited by law. Id. The trial

court is prohibited, however, from “mak[ing] an order that . . . interferes with or impairs the

jurisdiction of the appellate court or effectiveness of any relief sought or that may be granted on



the appeals are not moot based on the rule change because the injunctions enjoin conduct that would
otherwise be permitted even under the amended rules. Because the injunction orders at issue in the
consolidated appeals enjoin HHSC from engaging in conduct that would be permitted under the
amended rules, we agree with Advocates that the appeals are not moot based on the rule change.
However, the trial court is free to reconsider the continued propriety of injunctive relief in light of
the rule change.

                                                  10
appeal.” Id. HHSC argues that the August injunction order violates TRAP Rule 29.5 by granting

at least some of the same relief as the prior order and requiring it to challenge the validity of the

same relief in serial appeals.

               In accordance with TRAP Rule 29.5, the trial court had authority to modify or amend

the May injunction order to (1) grant identical substantive relief, (2) grant additional substantive

relief, and (3) bring the injunction into compliance with Civil Procedure Rules 683 and 684 as long

as those actions did not interfere with or impair this Court’s jurisdiction or the effectiveness of

the relief HHSC seeks on appeal from the May injunction order. See id. We conclude that

the trial court’s August injunction order did not violate TRAP Rule 29.5. See Tanguy v. Laux,

259 S.W.3d 851, 855 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (trial court’s actions in

dissolving prior injunction order and amending order did not violate TRAP Rule 29.5 because

substantive relief was identical so substantive claims remained alive and dissolution of prior order

did not interfere with effectiveness of relief sought for procedural deficiencies because dissolution

gave appellant all relief he sought on appeal); Ahmed v. Shimi Ventures, L.P., 99 S.W.3d 682, 690

(Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding that “the fact that the modified order

implicitly supplanted the earlier, appealed order [did not] in itself interfere with [court’s]

interlocutory jurisdiction in violation of rule 29.5,” provisions that were substantively similar

presented same issues on appeal and provided same opportunity for relief, and new provisions did

not adversely affect relief that could be granted). There were no substantive challenges to the May

injunction order, but even if there had been, those issues would remain alive in the appeal of the

August injunction order. As to the addition of a trial setting and a bond requirement, it is difficult

to conceive how those modifications could interfere with our jurisdiction or deprive HHSC of

                                                 11
effective relief given that their absence was the sole basis for the first appeal, and the modification

gave HHSC the relief it sought—a bond and a trial setting as required by rules 683 and 684. Logic

and reason preclude us from construing TRAP Rule 29.5 as hamstringing trial courts from correcting

procedural defects while an interlocutory appeal is pending based on those defects. As our sister

court said in substantially similar circumstances:


                A trial court should not be allowed to frustrate a party’s right to appellate
       review. However, that has not happened in this case. The amended order merely sets
       a trial date for a hearing on the permanent injunction, as required by Tex. R. Civ.
       P. 683. The appellant should not be able to complain both that the order is void
       because no trial date is set and also that a trial date has been set. The reason for
       requiring that a temporary injunction set a date for trial on the merits is to prevent the
       temporary injunction from becoming effectively permanent, without a trial having
       occurred. That purpose was accomplished here by the setting of the trial date. The
       trial court’s amended order accomplishes the purpose of rule 683 by preventing the
       temporary injunction from becoming “permanent” while the appellant waits
       indefinitely for a trial on the merits. Moreover, it does not interfere with our power
       to grant relief on appeal.

               It is unnecessary to vacate this injunction in order to protect either appellant’s
       right to a speedy trial or to effective appellate review of the temporary injunction.


Eastern Energy, Inc. v. SBY P’ship, 750 S.W.2d 5, 6 (Tex. App.—Houston [1st Dist.] 1988, no writ).

               We also reject HHSC’s suggestion that TRAP Rule 29.5 categorically prohibits a trial

court from issuing an order when a prior order that includes the same substantive relief is already

on appeal. While the prior version of TRAP Rule 29.5—former TRAP Rule 43(d)—expressly

prohibited trial courts from making an order “granting substantially the same relief as that granted

by the order appealed from,” see id. (quoting former TRAP Rule 43(d)), that restriction was not

carried forward in the 1997 appellate rules revision and instead was repealed “as being too broad.”

Texas Rules of Court, Tex. R. App. P. 29.5, Comment to 1997 Rule Change (West 2012). The

                                                  12
revision embodied in the current version of TRAP Rule 29.5 emphasizes that there is no per se

restriction on a trial court’s ability to modify or amend orders that have been appealed; rather, the

principal concern of Rule 29.5 is to clarify that the trial court retains jurisdiction to proceed as long

as it does not interfere with the jurisdiction of the appellate court or the ability of the appellate court

to grant effective relief in interlocutory appeals. For the reasons previously stated, those concerns

are not implicated in the circumstances of the present case.

                To the extent HHSC is vexed about having to prosecute seriatim appeals from

amended or modified orders, we note, parenthetically, that such a scenario appears to be adequately

addressed and ameliorated by two other rules of appellate procedure. TRAP Rule 29.6 states that

“[w]hile an appeal from an interlocutory order is pending, on a party’s motion or on the appellate

court’s own initiative, the appellate court may review . . . a further appealable interlocutory order

concerning the same subject matter.” Tex. R. App. P. 29.6(1). The phrase “same subject matter”

is not defined and is probably broader than a modified or amended order, but at the very least it

would appear to apply to such orders. See Tanguy, 259 S.W.3d at 855 (amended temporary

injunction was further appealable interlocutory order that concerned same subject matter);

Ahmed, 99 S.W.3d at 687 (determining that appellate court had authority to review modified

temporary-injunction order entered while interlocutory appeal was pending because it concerned

same subject matter as prior order). Even more on point, TRAP Rule 27.3, which expressly applies

to appealed orders that have been modified while the appeal is pending, provides as follows:


        After an order or judgment in a civil case has been appealed, if the trial court
        modifies the order or judgment . . . the appellate court must treat the appeal as from
        the subsequent order or judgment and may treat actions relating to the appeal of the
        first order or judgment as relating to the appeal of the subsequent order or judgment.

                                                    13
       The subsequent order or judgment and actions relating to it may be included in the
       original or supplemental record. Any party may nonetheless appeal from the
       subsequent order or judgment.


Tex. R. App. P. 27.3. Thus, although HHSC chose to prosecute its appeals separately, its fears about

being unfairly required to do so appear unjustified.

               HHSC also contends that the August injunction order is void because by issuing the

same substantive relief as the May injunction order, the modified order interferes with HHSC’s

supersedeas rights in the first appeal. It is undisputed that once HHSC filed its notice of appeal, the

May injunction order was automatically superseded by virtue of section 6.001 of the civil practice

and remedies code.4 See Tex. Civ. Prac. & Rem. Code Ann. § 6.001 (relieving state agency of

obligation to file appeal bond). From HHSC’s perspective, the purpose of superseding the injunction

was to ensure that the injunction was not enforced while the case was on appeal. HHSC was not

deprived of the benefit of any supersedeas rights, however, because the May injunction order has

continuously remained superseded and was not rendered enforceable by the August injunction order.

To the extent the same substantive relief was included in both orders, we observe two circumstances

that refute HHSC’s claim that it was effectively deprived of its supersedeas rights. First, the rules

of appellate procedure provided HHSC the opportunity to include the modified order within the

pending appeal, thus extending the benefits of its supersedeas protection to that order. See Tex. R.

App. P. 27.3, 29.6. That HHSC chose to prosecute the appeal separately does not render the August

injunction order violative of its supersedeas rights. Second, in the first appeal, HHSC did not assert


       4
          Advocates made no request to the trial court to avoid or undo this supersedeas, nor did it
offer to post a bond for that purpose. See In re Long, 984 S.W.2d 623, 626 (Tex. 1999); In re Dallas
Area Rapid Transit, 967 S.W.2d 358, 360 (Tex. 1998).

                                                  14
any challenges to the substantive relief granted in the May injunction order; accordingly, reissuing

that relief with the procedural defects corrected could not reasonably be construed as interfering with

its claims for relief in the first appeal. In light of the foregoing, we conclude that the August

injunction order did not deprive HHSC of any supersedeas rights.

               HHSC cites two cases to support its claim that the August injunction order is

void because it impinges on duly invoked supersedeas rights—Texas Liquor Control Bd. v. Jones,

378 S.W.2d 898 (Tex. Civ. App.—Austin 1964, orig. proceeding), and Railroad Comm’n of Tex.

v. Roberts, 332 S.W.2d 745 (Tex. Civ. App.—Austin 1960, orig. proceeding). Those cases,

however, are distinguishable based on their procedural posture and the relevant law in place. In both

cases, the trial courts had granted permanent injunctions that were superseded when appealed, but

the trial courts also granted temporary injunctions to ensure that the substance of the permanent

injunctions remained enforceable while the appeals were pending. In Jones, this Court relied on the

earlier opinion in Roberts and held that “[w]hen final judgment was entered in this case the

interlocutory injunction previously granted by the Trial Judge ceased to exist by operation of law,

a result the Trial Court was powerless to prevent or resist. His attempt to do so is utterly void and

of no force and effect.” Jones, 378 S.W.2d at 902-03 (quoting and discussing Roberts extensively);

see also Mote Resources, Inc. v. Railroad Comm’n of Tex., 618 S.W.2d 877, 879-80 (Tex. Civ.

App.—Austin 1981, orig. proceeding) (explaining holdings in Jones and Roberts as follows:

“[O]nce the district court had rendered a final judgment, it was powerless, thereafter, to enter

ancillary orders restraining the agency from acting contrary to the district court’s final judgment.”).

Given the procedural posture of the present case, this rationale is inapplicable.




                                                  15
               In addition, we note that Jones and Roberts (as well as Mote Resources) were decided

before former Civil Procedure Rule 364 (the predecessor to TRAP Rule 24.2(a)(3)) was amended

in 1984 to provide that, when a judgment is for other than money, property, or foreclosure, a trial

court “may decline to permit the judgment to be suspended on filing by the plaintiff of a bond

or deposit to be fixed by the court in such an amount as will secure the defendant in any loss

or damage occasioned by any relief granted if it is determined on final disposition that

such relief was improper.” Texas Rules of Civil Procedure–Rules Effective September 1, 1941 - : An

Historical Project, rule 364(f), http://www.stcl.edu/library/TexasRulesProject/MainIndex.htm

(accessed Mar. 11, 2013) (current version at Tex. R. App. P. 24.2(a)(3)).

               Based on the foregoing, we conclude that the August injunction order does not violate

TRAP Rule 29.5 or HHSC’s supersedeas rights.


       2.      Is the Appeal from the May Injunction Order Moot?

               Having concluded that the trial court had the authority to issue the August injunction

order modifying the May injunction order, we now consider whether the appeal of the May

injunction order is moot. In the appeal of that order, HHSC contends the order is void because it

does not comply with the bond and trial-setting requirements in Civil Procedure Rules 683 and 684.

It is well established that these defects render the noncompliant injunction order void ab initio. See,

e.g., Qwest Comms. v. AT&T Corp., 24 S.W.3d 334, 337 (Tex. 2000). Although Advocates contends

that the appeal is moot because it was taken from a now-superseded injunction order, HHSC

counters that it is entitled to a determination that the May injunction order was void ab initio,

because the trial court never dissolved that order.



                                                  16
                There is authority for the proposition that a subsequent order bringing a temporary

injunction into compliance with the rules of civil procedure supersedes a prior defective injunction

order and moots an appeal concerning those defects even if the defective injunction has not been

expressly dissolved. See Nexus Fuels, Inc. v. Hall, No. 05-98-02147-CV, 1999 WL 993929, at *2

(Tex. App.—Dallas Nov. 1, 1999, no pet.) (not designated for publication) (noting that original

temporary injunction did not comply with civil procedure rules that required trial setting but

concluding that appeal from defective injunction was mooted by amended order that included

trial setting); cf. Compass Bank, N.A. v. SanJeck, LLP, No. 05-11-00913-CV, 2012 WL 601191,

at *2 (Tex. App.—Dallas Feb. 23, 2012, no pet.) (mem. op.) (holding that appeal from first

temporary-injunction order was rendered moot by amended injunction that afforded appellant all

relief sought on appeal as to first injunction); Tanguy, 259 S.W.3d at 855 (appeal from defective

temporary-injunction order mooted by amended order that corrected defects and dissolved prior

injunction because trial court gave appellant all relief he had requested on appeal); Ahmed,

99 S.W.3d at 688-91 (holding that modified temporary injunction that did not expressly dissolve or

vacate previous temporary injunction “implicitly” superseded prior injunction, did not violate

rules of appellate procedure, and could be considered on its merits in pending appeal from

superseded injunction).

                We need not decide if the first appeal is moot on that basis, however, because we

conclude that the appeal is moot due to the absence of a justiciable controversy as to the validity of

the May injunction order. Heckman v. Williamson Cnty., 369 S.W.3d 137, 166-67 (Tex. 2012)

(observing that case is moot if there ceases to be “a justiciable controversy between the parties—that

is, if the issues presented are no longer ‘live,’ or if the parties lack a legally cognizable interest in

                                                   17
the outcome”). Because Advocates concedes that the May injunction order is facially invalid, there

is no live controversy concerning the validity of that order, and there is no claim that the August

injunction order suffers the same procedural deficiencies. We therefore dismiss HHSC’s appeal of

the May injunction order for want of jurisdiction.


        3.      Does the August Injunction Order Comply with Rule 683?

                Texas Rule of Civil Procedure 683 states in pertinent part: “Every order granting an

injunction and every restraining order shall set forth the reasons for its issuance [and] shall be

specific in terms; shall describe in reasonable detail and not by reference to the complaint or other

document, the act or acts sought to be restrained . . . .” Tex. R. Civ. P. 683. The rule’s requirements

are mandatory and must be strictly followed. InterFirst Bank San Felipe, N.A. v. Paz Constr. Co.,

715 S.W.2d 640, 641 (Tex. 1986). When a temporary-injunction order does not adhere to Rule 683’s

requirements, the injunction order is subject to being declared void and dissolved. Id. HHSC

contends that the August injunction order is void because it does not specifically set forth the reasons

why Advocates is likely to succeed on the merits of its claims for a declaratory judgment and

permanent injunctive relief. We conclude that the August injunction order is sufficiently specific

as to the reasons for enjoining the conduct described in parts (a) and (b), but it does not comply with

Rule 683 with regard to the conduct enjoined in parts (c) and (d).

                Part (a) of the injunction order enjoins conduct that is otherwise authorized by

section 380.207(4) of the MTP rules. Part (b) of the injunction essentially restates the terms of the

statute governing the EPSDT program—section 32.024(s)(2) of the human resources code—and

enjoins conduct that would be contrary to the statutory language. Although the August injunction



                                                  18
order addresses probable right of recovery only broadly, there is but a singular legal theory in the

pleadings concerning the validity of the challenged MTP rule—specifically, that it conflicts with

state and federal laws requiring the state to provide transportation to Medicaid services for eligible

recipients because it imposes a more stringent accompaniment requirement than is statutorily

required to obtain EPSDT services. Likewise, Advocates requested that the trial court enjoin HHSC

from applying a narrow interpretation of section 32.024 on the sole basis that such an interpretation

conflicts with the statute’s express language.

                “[T]he obvious purpose of [Rule 683] is to adequately inform a party of what he is

enjoined from doing and the reason why he is so enjoined.” El Tacaso, Inc. v. Jireh Star, Inc.,

356 S.W.3d 740, 744 (Tex. App.—Dallas 2011, no pet.) (quoting Schulz v. Schulz, 478 S.W.2d 239,

244-45 (Tex. Civ. App.—Dallas 1972, no writ)) (alteration in original). That purpose is satisfied

with respect to parts (a) and (b) of the August injunction order because (1) there is little doubt as to

the legal basis for granting relief, (2) the court fully explained the reasons why the applicants will

suffer imminent, irreparable injury, and (3) the conduct enjoined is stated with specificity.

                On the other hand, the legal basis for the relief provided in parts (c) and (d) of the

August injunction order is not readily ascertainable by reference to the terms of the order, nor from

the applications for injunctive and expanded injunctive relief. On appeal, Advocates explains

that the authorization process enjoined in the modified order (1) conflicts with the

transportation-authorization processes established by HHSC’s existing rules 380.203 and 380.205

and was employed without formal adoption of an amended rule, (2) makes it harder for authorized

Medicaid recipients to receive EPSDT services and thus is contrary to section 32.024(s)(2) of the

Texas Human Resources Code, and (3) conflicts with section 531.003(2)(B) of the Texas

                                                  19
Government Code, which states that one of HHSC’s goals is to provide prompt, comprehensive, and

effective services to the people of Texas by “eliminating . . . programmatic and transportation

barriers.” Gov’t Code § 531.003; Human Res. Code § 32.024(s)(2); 1 Tex. Admin. Code §§ 380.23

(2012) (Tex. Health & Human Res. Comm’n, Program Processes), .25 (2012) (Tex. Health &

Human Res. Comm’n, Program Services). However, none of this authority or legal argument was

presented to the trial court in Advocates’ “Application for Expanded Temporary Injunction” (or any

other pleading) as a legal basis for challenging the transportation-authorization process referenced

in the August injunction order. Even if it had been, the sheer number of legal theories asserted

would leave doubt as to the trial court’s basis for concluding that Advocates had a probable right to

recover. In addition to being unclear as to the legal basis supporting a right to relief, we also note

that parts (c) and (d) are vague and overly broad with regard to the acts restrained and thus do not

comply with the requirement that the injunction “describe in reasonable detail . . . the act or acts

sought to be restrained.” Tex. R. Civ. P. 683. “An injunction must be definite, clear, and concise,

leaving the person enjoined no doubt about his duties, and should not be such as would call on him

for interpretations, inferences or conclusions.” Vaughn v. Drennon, 202 S.W.3d 308, 316 (Tex.

App.—Tyler 2006, pet. denied). Because parts (c) and (d) of the August injunction order do not

comply with rule 683’s requirements, those provisions must be vacated.


Merits of Temporary Injunctive Relief

               A temporary injunction is an extraordinary remedy and does not issue as a matter of

right. Walling v. Metcalf, 863 S.W.2d 56, 57 (Tex. 1993). The purpose of a temporary injunction

is to preserve the status quo of the litigation’s subject matter pending a trial on the merits. Butnaru



                                                  20
v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). The status quo is “the last actual, peaceable,

non-contested status which preceded the pending controversy.” In re Newton, 146 S.W.3d 648, 651

(Tex. 2004) (quoting Janus Films, Inc. v. City of Fort Worth, 358 S.W.2d 589, 589 (Tex. 1962) (per

curiam)). To obtain a temporary injunction, the applicant must ordinarily plead and prove three

specific elements: (1) a cause of action against the defendant, (2) a probable right to the relief

sought, and (3) a probable, imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at

204. The applicant is not required to establish that he will prevail on final trial; rather, the only

question before the trial court is whether the applicant is entitled to preservation of the status quo

pending trial on the merits. Walling, 863 S.W.2d at 58.

                Our review is confined to the validity of the order that grants or denies injunctive

relief. Id. The decision to grant or deny a temporary injunction lies in the discretion of the trial

court, and the court’s ruling is subject to reversal only for a clear abuse of that discretion. Id. This

Court may neither substitute its judgment for that of the trial court nor consider the merits of the

lawsuit. Id. We may not reverse a trial court’s order if the court was presented with conflicting

evidence and the record includes evidence that reasonably supports the court’s decision. Brammer

v. KB Home Lone Star, L.P., 114 SW.3d 101, 105 (Tex. App.—Austin 2003, no pet.). 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. We will reverse the order if the trial court misapplies the law to

established facts or if it concludes that the applicant has demonstrated a probable injury or a probable

right to recover and such conclusion is not reasonably supported by the evidence. Id. at 106.




                                                  21
               HHSC challenges the August injunction order on the basis that Advocates failed to

establish probable, imminent, and irreparable injury and probable right to the relief sought in the

underlying lawsuit. We consider these matters in turn, but only as they pertain to the relief granted

in parts (a) and (b) of the August injunction order because we have already determined that parts (c)

and (d) of the order must be vacated on other grounds.


       1.      Probable, Imminent, Irreparable Injury:

       “Probable injury” includes the elements of imminent harm, irreparable injury, and no

adequate remedy at law. Univ. of Tex. Med. School v. Than, 834 S.W.2d 425, 428 (Tex.

App.—Houston [1st Dist.] 1992, no writ). For purposes of a temporary injunction, an injury is

irreparable if the injured party cannot be adequately compensated in damages or if the damages

cannot be measured by any certain pecuniary standard. Butnaru, 84 S.W.3d at 204; see also Tex.

Indus. Gas v. Phoenix Metallurgical Corp., 828 S.W.2d 529, 533 (Tex. App.—Houston [1st Dist.]

1992, no writ) (applicant for injunctive relief must establish that damages are incapable of

calculation or party sought to be enjoined is incapable of responding in damages). “The general rule

at equity is that before injunctive relief can be obtained, it must appear that there does not exist an

adequate remedy at law.” Butnaru, 84 S.W.3d at 210.

               HHSC contends that there is no direct evidence that any child was actually deprived

of EPSDT services due to the threat in the March 2012 letter that section 380.207(4) would be

enforced or that a parent, guardian, or relative was required to be in attendance at the EPSDT

services. While that may be true, there is sufficient evidence from which the trial court could have

reasonably inferred that at least one of the plaintiff children was deprived of at least some EPSDT



                                                  22
services as a result of the threatened enforcement of the MTP accompaniment rule, that the child

regressed in his progress due to a lack of therapy, that he would not be able to regularly receive

EPSDT services if the MTP accompaniment rule were enforced or section 32.024(s) were narrowly

construed, and that the harm from delayed or denied EPSDT services would be irreparable. See

Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex. 2001) (circumstantial evidence may be used to

establish any material fact if inference is reasonable and more than mere suspicion).

                At the evidentiary hearing, Mario Garza, an administrator for a pediatric rehabilitation

company, testified that following the March 2012 letter, “as many as 90 percent of the children were

not able to receive their therapeutic services.” He also testified that, “[i]f the parents are not allowed

to authorize the monitor to transport their kids back and forth and provide supervision of them at the

clinic, then the vast majority of kids would not receive the therapeutic rehab services that they so

desperately require.” This, he said, would result in regression and deterioration in their medical

condition. The regional manager of an MTP service provider similarly testified about the drastic

impact of the March 2012 letter, stating that 7,742 trips had been authorized in February 2012 and

6,121 trips in March 2012, but only 2,515 trips were made in April 2012. Although there is no direct

testimony linking the dramatic reduction in children receiving transportation services to the dramatic

reduction in the children receiving services at Garza’s facility, the trial court could have reasonably

inferred a connection between the two.

                These circumstances were also elaborated on by Nayeli Garza with respect to one of

the individual plaintiffs, her son, John Doe B. Garza testified that John Doe B regularly received

speech-therapy services prior to March 2012 and was usually accompanied by a monitor employed

by the speech-therapy provider and authorized by Garza to accompany him during transportation and

                                                   23
while at therapy. However, sometime in March 2012, the transportation provider contacted her and

informed her that they would not be able to pick her son up and take him to his therapy sessions.

Although Garza did not provide a reason why transportation was denied, the trial court could

reasonably have inferred from her testimony that it was because she was not available to accompany

him. Indeed, she testified that because she was unable to accompany him herself or find relatives

to assist her, there was a period of time during which her son was not able to receive speech therapy,

and during that time she noticed a decline in his condition and progress. Although he later resumed

speech-therapy services, all the evidence taken together is sufficient to support the trial court’s

finding that at least one plaintiff would probably suffer imminent, irreparable harm if the status quo

were not maintained.5


2.     Probable Right of Recovery

               From an examination of the cited statutes and regulations, we conclude that the

statutory scheme may reasonably be subject to a construction that would be consistent with

Advocates’ legal challenge to the MTP rule’s validity and HHSC’s narrow construction of the

accompaniment requirement in the EPSDT statute. In this interlocutory appeal, we cannot fairly

conclude that the trial court abused its discretion in determining that Advocates met its burden to

show a probable right of recovery on its claims in the underlying lawsuit.




       5
          HHSC complains that the findings of fact in the August injunction order either exceed the
scope of the evidence or are wholly unsupported by the evidence. While we share HHSC’s concerns
about the disparity between the evidentiary record and some of the trial court’s fact findings, the
unsupported findings are not essential for the injunctive relief granted and there is at least some
evidence to support the relevant portions of the findings.

                                                 24
                                        CONCLUSION

               Because there is no dispute that the May injunction order does not comply with Civil

Procedure Rules 683 and 684 and is therefore void, the appeal from that order is moot. Furthermore,

the procedural defects were corrected in the August injunction order, and there is no further

complaint of procedural defect in that regard. Accordingly, we dismiss the appeal of cause number

03-12-00354-CV as moot. In cause number 03-12-00606-CV, we modify the August modified

temporary-injunction order by vacating parts (c) and (d) due to noncompliance with Rule 683; as so

modified, we affirm that order.



                                             ____________________________________________

                                             J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Goodwin and Field

03-12-00354-CV: Dismissed as Moot

03-12-00606-CV: Modified and, as Modified, Affirmed

Filed: March 26, 2013




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