
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




NO. 03-02-00114-CV


Texas Health Care Information Council and the State of Texas,
Office of the Attorney General, Appellants

v.

Seton Health Plan, Inc., Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. GN100907, HONORABLE CHARLES F. CAMPBELL, JR., JUDGE PRESIDING




DISSENTING OPINION





	I concur with the majority opinion, except with respect to the issue of the permanent
injunction; specifically, regarding the 1999 and 2000 HEDIS reports, I believe that a continuing
violation of the law by Seton establishes, as a matter of law, the basis for the issuance of the
injunction.  Therefore, I respectfully dissent to that portion of the majority opinion.
	As noted by the majority, the grant or refusal of a permanent injunction is ordinarily
within the trial court's sound discretion, and on appeal, review of the trial court's action is limited
to whether the action constituted a clear abuse of discretion.  Risk Managers Int'l, Inc. v. State, 858
S.W.2d 567, 568-70 (Tex. App.--Austin 1993, writ denied); Priest v. Texas Animal Health Comm'n,
780 S.W.2d 874, 875 (Tex. App.--Dallas 1989, no writ).  However, where the facts conclusively
show that a party is violating the substantive law, the trial court should enjoin the violation, and there
is no discretion.  See Priest, 780 S.W.2d at 876 (citing City of Houston v. Memorial Bend Util. Co.,
331 S.W.2d 418, 422 (Tex. Civ. App.--Houston 1960, writ ref'd n.r.e.)).
	The obvious question, of course, is whether authority exists for the court to issue the
injunction under these facts.  The majority questions the use of section 2001.202 of the Texas
Government Code because section 108.014 of the Texas Health and Safety Code does not
specifically grant the State the authority to seek injunctive relief.  See Tex. Gov't Code Ann.
§ 2001.202 (West 2000); Tex. Health & Safety Code Ann. § 108.014 (West 2001).  However,
section 2001.202 specifically declares that injunctive relief may be sought in addition to any other
remedy provided by law. See Tex. Gov't Code Ann. § 2001.202.
	The majority goes on to say that legislative intent is not necessarily frustrated by
denying the use of section 2001.202 to enjoin a continuing violation.  Id.  However, the result of our
decision today is that those obligated to comply with Chapter 108 may disregard its mandates with
impunity, knowing that a nominal fine is all that awaits them.  It is obvious that a total frustration
of the legislative intent results when access to the injunctive relief offered by section 2001.202 of
the Government Code is unavailable to require compliance with sections 108.009 and 108.010.  See
Tex. Health & Safety Code Ann. §§ 108.009, 108.010.
	The legislature provided that the governor, the legislature, and the public has a right
to access  the HEDIS reports.  See Tex. Health & Safety Code Ann. §§ 108.001, 108.011.  If Seton
is allowed to pay a nominal fine in lieu of producing the HEDIS reports, the intended recipients will
be forever denied access to these reports.  Surely the legislature, in enacting sections 108.009 and
108.010 of the Health and Safety Code, did not intend that result.
	As the majority correctly points out, a party requesting injunctive relief must show 
a wrongful act, imminent harm, irreparable injury, and the absence of an adequate remedy at law. 
But the majority mistakenly concludes that the State has not established every element.  They
overlook the fact that Seton's failure to file the delinquent reports constitutes an ongoing violation
of law.  By enacting legislation requiring HEDIS reports to be produced annually, the legislature
obviously declared the information contained therein sufficiently important to be available to the
public.  A nominal fine, which costs Seton less than the cost of compliance, cannot be considered
an adequate remedy if it enables Seton to forever  avoid the obligation to produce the reports.  The
purpose of the fine is to punish a health care provider for not producing the report timely.  However,
payment of the fine should not permanently exempt the health care provider from the application of
the law.  That certainly would frustrate the legislative intent.  Injunctive relief should be available
to require Seton to produce the 1999 and 2000 HEDIS reports, as mandated by sections 108.009 and
108.010 of the Health and Safety Code.  Therefore, I respectfully dissent.


  
					David Puryear, Justice
Before Chief Justice Aboussie, Justices Patterson and Puryear
Filed:   December 19, 2002
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