The Board of Regents of the University of Texas System, the University of Texas System, and the University of Texas M.D. Anderson Cancer Center v. Gensetix, Inc.

ACCEPTED
15-25-00011-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
12/5/2025 3:07 PM
15-25-00011-CV CHRISTOPHER A. PRINE
CLERK

In The Fifteenth Court of Appeals FILED IN
15th COURT OF APPEALS
Austin, Texas AUSTIN, TEXAS
12/5/2025 3:07:27 PM
THE BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM, A. PRINE
CHRISTOPHER
Clerk
THE UNIVERSITY OF TEXAS SYSTEM, AND
THE UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER,

Appellants,
V.

GENSETIX, INC.,
Appellee.

On Appeal From the 152nd District Court of Harris County, Texas

APPELLANTS’ RESPONSE TO GENSETIX’S SUR-REPLY BRIEF

David E. Harrell, Jr. Thomas F. Loose
State Bar No. 00793905 State Bar No. 12561500
David.Harrell@troutman.com Tom.Loose@troutman.com
Deanna Markowitz Willson TROUTMAN PEPPER LOCKE LLP
State Bar No. 24092759 2000 Ross Avenue, Suite 2800
Deanna.willson@troutman.com Dallas, Texas 75201
TROUTMAN PEPPER LOCKE LLP
600 Travis St., Suite 2800 Terri M. Abernathy
Houston, Texas 77002 State Bar No. 24062894
Terri.Abernathy@oag.texas.gov
Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548, Capitol Station
Austin, TX 78711

ATTORNEYS FOR APPELLANTS

ORAL ARGUMENT REQUESTED
Table of Contents
Page
Argument in Response to Gensetix’s Sur-reply ................................................. 1
I. Introduction.........................................................................................1
II. Curadev is dispositive of this appeal. ............................................... 2
III. There is no dispute as to any fact material to the question
of whether UT has sovereign immunity. ........................................ 5
IV. Gensetix did not plead a taking in 2017 based on UT’s
invocation of the Eleventh Amendment. ........................................ 7
V. Chief Justice Brister’s dissent is consistent with UT’s
position.................................................................................................9
VI. UT did not raise new issues in its Reply. ......................................11
Conclusion and Prayer .........................................................................................12
Certificate of Compliance ....................................................................................14
Certificate of Service .............................................................................................14

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INDEX OF AUTHORITIES

Page(s)

CASES

Canadian Riv. Mun. Water Auth. v. Hayhook, Ltd.,
No. 07-20-00196-CV, 2021 WL 1202346 (Tex. App.—Amarillo
Mar. 30, 2021, no pet.)..................................................................................4, 10

Curadev Pharma Pvt. Ltd. v. The Univ. of Tex. Sw. Med. Ctr.,
721 S.W.3d 90 (Tex. App.—15th Dist. 2025, pet. filed) ........................passim

Gensetix, Inc. v. Bd. of Regents of Univ. of Tex. Sys.,
966 F.3d 1316 (Fed. Cir. 2020) .......................................................................7, 8

Greene v. Farmers Ins. Exch.,
446 S.W.3d 761 (Tex. 2014) ..............................................................................12

IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp.,
938 S.W.2d 440 (Tex. 1997) ................................................................................1

MBP Corp. v. Bd. of Trs. of the Galveston Wharves,
297 S.W.3d 483 (Tex. App.—Houston [14th Dist.] 2009, no
pet.) .......................................................................................................................6

Stringfellow v. Tex. Dep’t of Pub. Safety,
No. 15-24-00024-CV, 2025 WL 996361 (Tex. App.—15th Dist.
Apr. 3, 2025, pet. denied) ..................................................................................3

Tex. Dep’t of Transp. v. Self,
690 S.W.3d 12 (Tex. 2024) ............................................................................4, 10

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Argument in Response to Gensetix’s Sur-reply

I. Introduction.

Appellants (collectively, “UT”) did not oppose Gensetix’s request for

leave to file a Sur-reply limited to addressing this Court’s opinion in Curadev

Pharma Pvt. Ltd. v. The Univ. of Tex. Sw. Med. Ctr., 721 S.W.3d 90 (Tex. App.—

15th Dist. 2025, pet. filed). Gensetix’s Sur-reply completely ignored that

Curadev is dispositive on its breach of contract claim with its clear holding

that there is no waiver-by-conduct exception for sovereign immunity.

Instead, Gensetix focused entirely on its takings claim, making arguments

far afield of those addressed by this Court in Curadev.

A few examples: Gensetix discusses supposed evidentiary disputes

and purported findings the trial court made or declined to make. Sur-reply

at 4, 7-8.1 Gensetix discusses at length a purported 2017 taking based on UT’s

invocation of Eleventh Amendment immunity that Gensetix did not plead.

E.g., Sur-reply at 5-6. And Gensetix introduces a new argument—to “rebut”

an argument UT never made—”that Takings lasting less than 33 months are

1 Gensetix did not address the binding authority UT cited holding fact findings “have no

purpose and should not be requested, made, or considered on appeal” in cases like this
where pleas to the jurisdiction are decided without an evidentiary hearing. See UT’s
Reply Br. at 10-11 (citing, inter alia, IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d
440, 443 (Tex. 1997)).

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non-actionable.” Sur-reply at 8. Gensetix sought leave to file a Sur-reply only

to address Curadev; the Court should not consider the extraneous arguments

Gensetix makes in an improper attempt to “get the last word.” Even if

considered, Curadev remains dispositive of this appeal, and none of

Gensetix’s extraneous arguments have merit.

II. Curadev is dispositive of this appeal.

Much of Gensetix’s Sur-reply is difficult to decipher, but one

concession is clear—Gensetix cannot meaningfully distinguish Curadev.

Gensetix argued two rationales to overcome UT’s sovereign immunity

defense: (1) waiver by conduct permits its breach of contract claim, and (2) a

Constitutional takings claim, which arose solely from the parties’ contractual

relationship. See generally Appellee’s Brief. Curadev addresses and rejects

both of Gensetix’s arguments.

A “waiver-by-conduct argument is contrary to binding Supreme Court

authority, which instructs that sovereign immunity may not be waived by a

party’s conduct but only by the Legislature.” Curadev, 721 S.W.3d at 102.

Gensetix fails to mention this holding or attempt to defend this purported

exception that the Texas Supreme Court has rejected repeatedly. Gensetix

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has effectively abandoned its waiver-by-conduct theory, conceding its

breach of contract claim is barred.

Gensetix’s Constitutional takings claim also fails. First, Gensetix’s

rights and claims are grounded in contract—its License Agreement with UT.

Although this Court construes the pleadings “liberally in favor of the

plaintiff,” Curadev, 721 S.W.3d at 97, it must look to the substance of

Gensetix’s claim. Gensetix “cannot evade sovereign immunity with creative

pleading.” Stringfellow v. Tex. Dep’t of Pub. Safety, No. 15-24-00024-CV, 2025

WL 996361, at *4 (Tex. App.—15th Dist. Apr. 3, 2025, pet. denied). Gensetix’s

takings claim is a repackaged contract claim that cannot proceed under

Curadev because Gensetix is suing the State for exercising its contractual

rights and for damages tied directly to rights the State had under a contract.

Second, the claim fails because it requires, among other things, “an

intentional act by a governmental entity,” Curadev, 721 S.W.3d at 98, and,

regarding that element, “when the government acts pursuant to colorable

contract rights, it lacks the necessary intent to take under its eminent domain

powers and thus retains its immunity from suit.” Id. (citing Holland, 221

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S.W.3d at 643).2 Gensetix says under Self, “intent no longer matters.” Sur-

reply at 4 (referring to Tex. Dep’t of Transp. v. Self, 690 S.W.3d 12 (Tex. 2024)).

But Self reaffirmed that “when the government acts on its rights under a

contract to which the parties have consented … it is not exercising sovereign

powers.” Self, 690 S.W.3d at 27. In Self, it was undisputed that the trees

TxDOT cut were outside its right-of-way easement. Self, 690 S.W.3d at 17.

Thus, TxDOT was not acting pursuant to its contract rights. In Curadev, this

Court determined that Self did not support a takings claim because

“Southwestern was not acting under its eminent domain power at all.”3

Curadev, 721 S.W.3d at 100.

Here, UT was acting under colorable contract rights—its License

Agreement with Gensetix—which addressed both Gensetix’s payment and

2 On this point, the Court was unanimous. Chief Justice Brister wrote: “When the
government takes money or property belonging to A pursuant to a contract the
government has with A, I agree there is no taking; Chapter 2260 of the Texas Government
Code provides an exclusive administrative remedy for A that cannot be skipped by
pleading a takings claim. … In [that] case, the government has no intent to exercise
eminent domain since it has contract rights to exercise directly against the owner.”
Curadev, 2025 WL 2414661, at *11 (Brister, C.J., concurring and dissenting).
3 See also Canadian Riv. Mun. Water Auth. v. Hayhook, Ltd., No. 07-20-00196-CV, 2021 WL

1202346, at *4 (Tex. App.—Amarillo Mar. 30, 2021, no pet.) (distinguishing between
“mistakenly interpreting the scope of an expressed contractual right and invoking a non-
existent contractual right.”). UT notes a typographical error in its Reply Brief on page 33
where counsel mistakenly wrote “Here, as in Hayhook” but intended to say “Here, unlike
in Hayhook.”

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reporting obligations and UT’s power to terminate for breach. CR:50-54, 65

(¶¶ 3.1, 4.1, 4.2, 13.3). Under the holding in Curadev, Gensetix’s takings claim

fails.

III. There is no dispute as to any fact material to the question of whether
UT has sovereign immunity.

In attempting to distinguish Curadev, Gensetix feebly argues there

were disputed fact issues. There are no material facts in dispute regarding

UT’s sovereign immunity—UT’s evidence merely confirmed the contractual

relationship and consisted only of documents central to Gensetix’s claims

and referenced in its petition. UT’s evidence consisted of:

• Exhibit 1: September 8, 2008, Patent and Technology License
Agreement between UT and Mirrow (CR:46);

• Exhibit 2: January 13, 2014, Assignment and Assumption
Agreement between Mirrow and Gensetix, LLC (CR:75);

• Exhibit 3: June 2, 2014, Amendment No. 1 to the Patent and
Technology License Agreement between UT and Gensetix, LLC
(CR:79);

• Exhibit 4: June 13, 2014, Assignment and Assumption
Agreement between Gensetix, LLC and Gensetix, Inc. (CR:86);

• Exhibit 6: March 9, 2020, notice of default sent by UT to Gensetix,
Inc. (CR:93);

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• Exhibit 7: May 20, 2020, notice of termination sent by UT to
Gensetix, Inc. 2SuppCR:4. 4

There is no dispute that those agreements were made, and those notices were

sent. Gensetix denies that it breached the License Agreement but that is a

merits dispute not relevant to the sovereign immunity question before this

Court.

Gensetix lists four disputed facts that it claims are “key jurisdictional

facts.” Sur-reply at 4. But the first two listed are relevant only to the

repeatedly rejected waiver-by-conduct theory that Gensetix has apparently

abandoned. That theory is not viable, so those facts are not material. The

third and fourth go to the parties’ disputed interpretations of the License

Agreement. A dispute on contractual interpretation does not diminish the

key jurisdictional fact: UT was acting under colorable contract rights when

it terminated the License Agreement. Also, those facts are not material

because this Court “need not decide which party’s interpretation [of the

License Agreement] is correct to assess the trial court’s subject-matter

jurisdiction over the suit.” MBP Corp. v. Bd. of Trs. of the Galveston Wharves,

4 Exhibit 5 was the Declaration of Andrew Dennis, which merely authenticated Exhibits

1-4. CR:90.

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297 S.W.3d 483, 492 (Tex. App.—Houston [14th Dist.] 2009, no pet.). If

resolution of those disputes were necessary to resolve the immunity issue,

the policies underlying sovereign immunity would easily be subverted in

any case involving a contract with the State.

IV. Gensetix did not plead a taking in 2017 based on UT’s invocation of
the Eleventh Amendment.

Gensetix argues Curadev does not affect its 2017 takings claim based on

UT’s invocation of the Eleventh Amendment. Sur-reply at 5-6. 5 But Gensetix

pled the taking was based on UT’s termination of the License Agreement in

2020:

39. UT and MD Anderson, in or about May 2020,
intentionally engaged in affirmative conduct affecting the
exclusive patent license.

40. In or about May 2020, the exclusive patent license
belonging to Gensetix was effectively destroyed due to the
affirmative conduct of UT and MD Anderson.

5 Gensetix repeatedly says UT’s assertion of its Eleventh Amendment rights was
“meritless” and “gratuitous.” Sur-reply at 6, 8. Gensetix even claims UT’s “ELEVENTH
AMENDMENT theory didn’t hold up on appeal.” Sur-reply at 8. This is all false. The
Federal Circuit affirmed UT’s sovereign immunity (and permitted Gensetix to pursue its
infringement action without UT). Gensetix, Inc. v. Bd. of Regents of Univ. of Tex. Sys., 966
F.3d 1316, 1321-23, 1327 (Fed. Cir. 2020). It is impossible to square Gensetix’s assertion
that UT “did not even arguably act within the scope of its rights in 2017” (Sur-reply at 10)
with the Federal Circuit’s holding.

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CR:105-06. 6 Gensetix did not plead a taking occurred in 2017 and did not

mention the Eleventh Amendment in its petition. See CR:95-108. 7

Even if Gensetix had pled this claim, it has provided no authority that

a party’s invocation of the Eleventh Amendment equates with eminent

domain. In fact, the crux of this taking argument is that Gensetix (wrongly)

suggests that UT was contractually obligated to join its misguided lawsuit,

when it was not. And even the Federal Circuit said that Gensetix could

pursue its claims in UT’s absence. Gensetix, Inc. v. Bd. of Regents of Univ. of

Tex. Sys., 966 F.3d 1316, 1321-23, 1327 (Fed. Cir. 2020). Moreover, Gensetix

has not cited any authority for the proposition that it could not pursue

commercialization of the Licensed technology while it pursued its claims

against Baylor.

Once again, the takings claim alleged by Gensetix in its live petition,

which is controlling, or even as argued in its Sur-reply, is merely a

6 See also CR:105 (¶ 32: “In May 2020, … UT informed Gensetix that it would be
terminating the exclusive license.”).
7 Gensetix makes a confusing argument that the alleged 2020 taking was “factually

intertwined” with the “ELEVENTH AMENDMENT-based Taking of 2017.” Sur-reply at 7.
Because Gensetix did not plead a 2017 taking based on the Eleventh Amendment,
Gensetix’s point is unclear.

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repackaged contract claim. Curadev holds that such a takings claim must be

dismissed. Curadev, 721 S.W.3d at 99-101.

V. Chief Justice Brister’s dissent is consistent with UT’s position.

Gensetix claims UT “misreads Chief Justice Brister’s dissenting

opinion in Curadev.” Sur-reply at 9. Gensetix’s Sur-reply wanders through

arguments that are wholly irrelevant to UT’s arguments, Chief Justice

Brister’s dissent, or this case. Fundamentally, however, Chief Justice Brister’s

dissent is limited to a fact pattern that is inapplicable to Gensetix’s dispute

with UT.

Gensetix first argues that “property interests less than outright

ownership are cognizable.” Sur-reply at 9. But Chief Justice Brister said

nothing remotely touching on this subject, and neither did UT.

Second, Gensetix argues “MDA already conceded below that ‘the

existence of a contract by itself is insufficient to invalidate [Gensetix’s]

Takings claim[.]’” Sur-reply at 10 (citing (CR:251)). Gensetix omitted the end

of that sentence, which states “but when the alleged taking was an act

pursuant to a contract (as it was in this case), a takings claim is invalid.”

CR:251. Moreover, this is hardly the concession that Gensetix implies—it is

black letter law: “the mere existence of a contract does not build an

-9-
impenetrable wall nullifying the possibility of other waivers of and

exceptions to that immunity.” Hayhook, 2021 WL 1202346, at *2 (cleaned up,

citing cases); see also Self, 690 S.W.3d at 30 (holding TxDOT liable for inverse

condemnation notwithstanding its contract—a right-of-way easement—

with the landowner). Furthermore, Chief Justice Brister agreed with the

majority that when the government takes money or property “pursuant to a

contract” there is no taking. Curadev, 2025 WL 2414661, at *11 (Brister, C.J.,

concurring and dissenting).

Next, again ignoring Chief Justice Brister’s dissent, Gensetix argues if

“the State conveys the right to exclude, the State can no longer appropriate

that exclusionary right without paying just compensation to the holder of

that exclusionary right.” Sur-reply at 10. UT did not “appropriate” an

exclusionary right; rather, it terminated the License Agreement following

Gensetix’s breach. The State may terminate a license—just as any private

licensor—without transforming a contract dispute into a taking.

Without any discussion of Chief Justice Brister’s dissenting opinion, or

the concerns he expressed, Gensetix ends with the baseless conclusion that

“[t]he concerns Chief Justice Brister raised in Curadev plainly apply here.”

Sur-reply at 10. But Gensetix fails to explain how. Chief Justice Brister’s

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principal concern appeared to be that “[i]n this case, there were no contracts

or contract rights between UT’s Southwestern Medical Center and the

Curadev parties; each had a contract with Takeda, but neither was aware of

Takeda’s contract with the other.” Curadev, 721 S.W.3d at 107. He posited

that Southwestern could not have acted pursuant to a contract with Curadev

because Southwestern had no contract with Curadev. Id. at 108. That is not

the case here. The issues that concerned Chief Justice Brister are not present

here.

VI. UT did not raise new issues in its Reply.

Lastly, Gensetix claims UT made untimely arguments regarding

interpretations of the License Agreement. Sur-reply at 11. This argument

does not address the holdings in Curadev and was inappropriate for a Sur-

reply that was limited to responding to that opinion. Regardless, UT was

merely replying to arguments Gensetix made in its brief.

Moreover, UT’s discussion of certain terms in the License Agreement

concerned the issue of Gensetix’s breach of that Agreement, which has been

part of this case from the start. See, e.g., CR:33 (Defendants’ Original Answer,

Verified Denial, Special Exceptions, and Plea to the Jurisdiction). UT made

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this argument in its opening brief. Opening Br. at 15 (“Gensetix breached the

License and, pursuant to its terms, UT terminated the License.”).

UT’s arguments are not new, but even if they were, there is no basis

for the Court to disregard them as Gensetix requests because UT raised the

issue of Gensetix’s breach from the start. See Greene v. Farmers Ins. Exch., 446

S.W.3d 761, 764 n.4 (Tex. 2014) (“We do not consider issues that were not

raised in the courts below, but parties are free to construct new arguments in

support of issues properly before the Court.”).

Conclusion and Prayer

This Court should reverse the trial court’s order denying UT’s Plea to

the Jurisdiction and render judgment that Gensetix’s claims be dismissed

with prejudice. UT prays for such further relief to which it shows itself

entitled.

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Respectfully submitted,

By: /s/ David E. Harrell, Jr.
David E. Harrell, Jr.
State Bar No. 00793905
David.Harrell@troutman.com
Deanna Markowitz Willson
State Bar No. 24092759
Deanna.Willson@troutman.com
TROUTMAN PEPPER LOCKE LLP
600 Travis St., Suite 2800
Houston, Texas 77002

Thomas F. Loose
State Bar No. 12561500
Tom.Loose@troutman.com
TROUTMAN PEPPER LOCKE LLP
2000 Ross Avenue, Suite 2800
Dallas, Texas 75201

Terri M. Abernathy
State Bar No. 24062894
Terri.abernathay@oag.texas.gov
Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548, Capitol Station
Austin, TX 78711

ATTORNEYS FOR APPELLANTS

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Certificate of Compliance

I certify that this Response to Gensetix’s Sur-reply complies with TEX.

R. APP. P. 9.4(i) because the relevant portions of the Brief contain 2,452

words, as counted by Microsoft Word 365.

/s/ Thomas F. Loose
Thomas F. Loose

Certificate of Service

Pursuant to TEX. R. APP. P. 9.5(e), I certify that a true and correct copy

of the foregoing document was served via electronic filing on the 5th day of

December 2025, to:

Anthony Buzbee
Ryan Pigg
BUZBEE LAW FIRM
600 Travis St., Suite 7500
Houston, TX 77002

Cabrach Connor
Jennifer Tatum Lee
Sergio Davila
CONNOR LEE & SHUMAKER PLLC
609 Castle Ridge Rd., Suite 450
Austin, TX 78746-5196

Attorneys for Appellee

/s/ Thomas F. Loose
Thomas F. Loose

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Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Rick Hagerich on behalf of Thomas Loose
Bar No. 12561500
rhagerich@lockelord.com
Envelope ID: 108784928
Filing Code Description: Response
Filing Description: Appellants' Response to Gensetix's Sur-reply Brief
Status as of 12/5/2025 3:46 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Terri Abernathy terri.abernathy@oag.texas.gov 12/5/2025 3:07:27 PM SENT

Victoria Gomez victoria.gomez@oag.texas.gov 12/5/2025 3:07:27 PM SENT

Thomas FLoose tom.loose@troutman.com 12/5/2025 3:07:27 PM SENT

David E.Harrell David.Harrell@troutman.com 12/5/2025 3:07:27 PM SENT

Deanna MarkowitzWillson deanna.willson@troutman.com 12/5/2025 3:07:27 PM SENT

Chris Dove Chris.Dove@troutman.com 12/5/2025 3:07:27 PM SENT

Monika Dziemianczuk monika.dziemianczuk@troutman.com 12/5/2025 3:07:27 PM SENT

Cabrach Connor Cab@CLandS.com 12/5/2025 3:07:27 PM SENT

Jennifer TatumLee Jennifer@CLandS.com 12/5/2025 3:07:27 PM SENT

Sergio Davila Sergio@CLandS.com 12/5/2025 3:07:27 PM SENT

Anthony Buzbee tbuzbee@txattorneys.com 12/5/2025 3:07:27 PM SENT

Ryan Pigg rpigg@txattorneys.com 12/5/2025 3:07:27 PM SENT

Rian Taff rtaff@txattorneys.com 12/5/2025 3:07:27 PM SENT

Mauricio Guevara mguevara@txattorneys.com 12/5/2025 3:07:27 PM SENT

Lionel Sims lsims@txattorneys.com 12/5/2025 3:07:27 PM SENT

Alyssa Bixby-Lawson alyssa.bixby-lawson@oag.texas.gov 12/5/2025 3:07:27 PM SENT