Cecile Erwin Young, in Her Official Capacity as the Executive Commissioner of the Texas Health and Human Services Commission; Molina Healthcare of Texas, Inc.; And Aetna Better Health of Texas, Inc. v. Cook Children's Health Plan, Texas Children's Health Plan, Superior Health Plan, Inc., and Wellpoint Insurance Company

ACCEPTED
15-24-00114-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
9/24/2025 4:30 PM
No. 15-24-00114-CV CHRISTOPHER A. PRINE
CLERK
FILED IN
15th COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE FIFTEENTH DISTRICT OF TEXAS
AUSTIN, TEXAS
9/24/2025 4:30:05 PM
CHRISTOPHER A. PRINE
Clerk
CECILE ERWIN YOUNG, IN HER OFFICIAL CAPACITY AS EXECUTIVE
COMMISSIONER OF THE TEXAS HEALTH AND HUMAN SERVICES COMMISSION,
MOLINA HEALTHCARE OF TEXAS, INC., AND AETNA BETTER HEALTH OF
TEXAS, INC.
Appellants,

v.

COOK CHILDREN’S HEALTH PLAN, TEXAS CHILDREN’S HEALTH PLAN,
SUPERIOR HEALTHPLAN, INC., AND WELLPOINT INSURANCE COMPANY,
Appellees.

On Appeal from the 455th Judicial District Court, Travis County, Texas
Cause No. D-1-GN-24-003839

RULE 29.3 REPLY OF APPELLEES
COOK CHILDREN’S HEALTH PLAN AND TEXAS CHILDREN’S HEALTH PLAN
TABLE OF CONTENTS

Summary ................................................................................................................... 1

Argument .................................................................................................................. 5

I. The Court has jurisdiction to order temporary relief. .......................... 5

A. Rule 29.3 provides a clear mechanism for relief. ...................... 5

B. The Court can grant relief under its original jurisdiction
and inherent authority because of the risk of mootness. .......... 11

II. The Children’s Plans’ claims are ripe. ............................................... 12

III. Exhaustion of administrative remedies is not required when
asserting ultra vires claims................................................................. 16

IV. The Children’s Plans did not waive their ultra vires claims by
failing to object to the terms of the procurement’s solicitation. ........ 20

V. The Children’s Plans seek only to halt unlawful conduct, not to
compel the Commissioner to redo the procurement. ......................... 21

VI. The Commissioner’s procurement is violating statutory and
regulatory mandates—and she will continue to commit ultra
vires acts. ............................................................................................ 23

A. The record shows the Commissioner is disregarding legal
requirements, which is not within her discretion. .................... 24

B. The Children’s Plans have standing. ........................................ 26

C. The Commissioner’s exhaustion-of-remedies argument
remains fundamentally misguided. .......................................... 28

D. The record shows the Commissioner has failed to comply
with multiple statutory and regulatory mandates. .................... 30

1. The Commissioner has not complied with section
2155.144 when determining “best value.”..................... 30

i
2. The Commissioner has failed to consider provider
networks and quality initiatives as required by law. ..... 34

3. The Public Information Act did not compel the
wrongful disclosure of proposals. .................................. 37

4. The Commissioner has disregarded other
procurement requirements. ............................................ 38

VII. The Children’s Plans and their members will be irreparably
harmed if the temporary injunction is not continued pending the
final disposition of this appeal. .......................................................... 39

VIII. The balance of the equities strongly supports continuing the
temporary injunction pending the final disposition of this
appeal. ................................................................................................ 43

Conclusion .............................................................................................................. 48

Certificate of Service .............................................................................................. 51

ii
TABLE OF AUTHORITIES

Page(s)

Cases

Abbott v. Doe,
691 S.W.3d 55 (Tex. App.—Austin 2024, no pet.) ........................................... 13

Abbott v. Doe,
No. 03-22-00126-CV, 2022 WL 837956 (Tex. App.—Austin
Mar. 21, 2022, no pet.) .................................................................................... 8, 9

Adarand Constructors, Inc. v. Peña,
515 U.S. 200 (1995) .......................................................................................... 27

Brennan v. City of Willow Park,
376 S.W.3d 910 (Tex. App.—Fort Worth 2012, pet. denied) ........................... 17

Cash Am. Int’l Inc. v. Bennett,
35 S.W.3d 12 (Tex. 2000) ................................................................................. 17

Chambers-Liberty Cntys. Navigation Dist. v. State,
575 S.W.3d 339 (Tex. 2019) ............................................................................. 44

City of Anson v. Harper,
216 S.W.3d 384 (Tex. App.—Eastland 2006, no pet.) ...................................... 14

City of Austin v. Util. Assocs., Inc.,
517 S.W.3d 300 (Tex. App.—Austin 2017, pet. denied) ............................ 21, 25

City of El Paso v. Heinrich,
284 S.W.3d 366 (Tex. 2009) ................................................................. 10, 15, 23

Coyne-Delany Co. v. Cap. Dev. Bd.,
616 F.2d 341 (7th Cir. 1980) ............................................................................... 9

Dubai Petroleum Co. v. Kazi,
12 S.W.3d 71 (Tex. 2000) ........................................................................... 17, 18

EIS Dev. II, LLC v. Buena Vista Area Ass’n,
715 S.W.3d. 689 (Tex. 2025) ............................................................................ 21

iii
Elcon Enters., Inc. v. Wash. Metro. Area Transit Auth.,
977 F.2d 1472 (D.C. Cir. 1992) ......................................................................... 27

Hall v. McRaven,
508 S.W.3d 232 (Tex. 2017) ....................................................................... 25, 32

Harley Channelview Props., LLC v. Harley Marine Gulf, LLC,
690 S.W.3d 32 (Tex. 2024) ................................................................................. 8

Hensley v. State Comm’n on Jud. Conduct,
692 S.W.3d 184 (Tex. 2024) ............................................................................. 19

Hous. Belt & Terminal Ry. Co. v. City of Houston,
487 S.W.3d 154 (Tex. 2016) ....................................................................... 20, 24

In re Abbott,
645 S.W.3d 276 (Tex. 2022) (orig. proceeding) ............................................. 6, 9

In re Geomet Recycling LLC,
578 S.W.3d 82 (Tex. 2019) (orig. proceeding) ............................................. 5, 10

In re Newton,
146 S.W.3d 648 (Tex. 2004) (orig. proceeding) ............................................... 43

In re Oncor Elec. Delivery Co.,
630 S.W.3d 40 (Tex. 2021) ............................................................................... 19

In re State,
711 S.W.3d 641 (Tex. 2024) (orig. proceeding) ....................................... 7, 8, 44

In re Stetson Renewables Holdings, LLC,
658 S.W.3d 292 (Tex. 2022) (orig. proceeding) ............................................... 22

In re Tex. Educ. Agency,
619 S.W.3d 679 (Tex. 2021) (orig. proceeding) ............................................... 45

Kilgore Indep. Sch. Dist. v. Axberg,
535 S.W.3d 21 (Tex. App.—Texarkana 2017, no pet.) ..................................... 17

Lazarides v. Farris,
367 S.W.3d 788 (Tex. App.—Houston [14th Dist.] 2012, no pet.)................... 28

iv
Lutheran Church-Mo. Synod v. Concordia Univ. of Tex.,
No. 03-25-00342-CV, 2025 WL 1942540 (Tex. App.—Austin
July 16, 2025, no pet. h.) ..................................................................................... 6

Marble Falls Indep. Sch. Dist. v. Scott,
275 S.W.3d 558 (Tex. App.—Austin 2008, pet. denied) .................................. 14

Masters v. Voe,
No. 03-22-00420-CV, 2022 WL 4359561 (Tex. App.—Austin
Sept. 20, 2022, no pet.) ........................................................................................ 7

Morath v. Kingsville Indep. Sch. Dist.,
710 S.W.3d 918 (Tex. App.—15th Dist. 2025) ................................................. 22

Parsons v. Galveston Cnty. Emps. Credit Union,
576 S.W.2d 99 (Tex. App.—Houston [1st Dist.] 1978, orig.
proceeding) ........................................................................................................ 11

Patel v. Tex. Dep’t of Licensing & Regulation,
469 S.W.3d 69 (Tex. 2015) ......................................................................... 13, 41

Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc.,
971 S.W.2d 439 (Tex. 1998) ............................................................................. 14

Paxton v. Garza,
No. 15-25-00116-CV (Tex. App.—15th Dist. July 17, 2025)............................. 5

Perkins v. Lukens Steel Co.,
310 U.S. 113 (1940) ............................................................................................ 9

Perry v. Del Rio,
66 S.W.3d 239 (Tex. 2001) ............................................................................... 15

Riner v. City of Hunters Creek,
403 S.W.3d 919 (Tex. App.—Houston [14th Dist.] 2023, no pet.)................... 14

S.C. v. M.B.,
650 S.W.3d 428 (Tex. 2022) ............................................................................. 18

State v. City of San Marcos,
714 S.W.3d 224 (Tex. App.—15th Dist. 2025, pet. filed) ................................ 43

v
State v. Harris County,
No. 15-24-00120-CV (Tex. App.—15th Dist. Dec. 6, 2024) ............................ 11

State v. Hollins,
620 S.W.3d 400 (Tex. 2020) ............................................................................. 44

Tex. Dep’t of Protective & Regul. Servs. v. Mega Child Care, Inc.,
145 S.W.3d 170 (Tex. 2004) ............................................................................. 18

Tex. Dep’t of State Health Servs. v. Holmes,
294 S.W.3d 328 (Tex. App.—Austin 2009, pet. denied) .................................... 8

Tex. Educ. Agency v. A+ Tex. Teachers,
No. 03-23-00318-CV, 2023 WL 4981604 (Tex. App.—Austin
Aug. 4, 2023, no pet.) .......................................................................................... 7

Tex. Educ. Agency v. Hous. Indep. Sch. Dist.,
609 S.W.3d 569 (Tex. App.—Austin 2020, no pet.) ......................................... 10

Tex. Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist.,
830 S.W.2d 88 (Tex. 1992) ......................................................................... 18, 19

Texas v. Biden,
10 F.4th 538 (5th Cir. 2021) .............................................................................. 44

Tinton Falls Lodging Realty, LLC v. United States,
800 F.3d 1353 (Fed. Cir. 2015) ......................................................................... 26

VAS Realty, LLC v. United States,
26 F.4th 945 (Fed. Cir. 2022) ............................................................................ 26

Webster v. Comm’n for Lawyer Discipline,
704 S.W.3d 478 (Tex. 2024) ............................................................................. 14

Westheimer Indep. Sch. Dist. v. Brockette,
567 S.W.2d 780 (Tex. 1978) ............................................................................. 20

Wilson v. Cmty. Health Choice Tex., Inc.,
607 S.W.3d 843 (Tex. App.—Austin 2020, pet. denied) ........................... passim

Statutes

TEX. GOV’T CODE § 22.221(a) ................................................................................ 11

vi
TEX. GOV’T CODE § 533.003(a)(1) ......................................................................... 35

TEX. GOV’T CODE § 533.003(a)(3) ......................................................................... 38

TEX. GOV’T CODE § 536.052(d) .............................................................................. 35

TEX. GOV’T CODE § 552.104(a) .............................................................................. 37

TEX. GOV’T CODE § 2155.144(c) ...................................................................... 30, 32

TEX. GOV’T CODE § 2155.144(d) ........................................................................... 32

TEX. GOV’T CODE § 2155.144(d)(5) ....................................................................... 30

TEX. GOV’T CODE § 2155.144(n) ............................................................................ 35

Other Authorities

1 TEX. ADMIN. CODE § 391.303(d) ......................................................................... 18

34 TEX. ADMIN. CODE § 20.208(d)(3) ..................................................................... 38

TEX. R. APP. P. 29.3 ......................................................................................... passim

vii
SUMMARY

The purpose of Rule 29.3 is to preserve the status quo and protect the parties’

rights while an appeal proceeds. As an injunction, traditional factors control the

inquiry—principally, relative harms and equities and a preliminary examination of

the merits to avoid unjust outcomes. While the Commissioner and Molina both

acknowledge that well-established standard at the outset of their respective

oppositions, neither pays it much heed. Instead, both largely sidestep the traditional

considerations in favor of brand-new arguments seeking to limit the scope of the

rule, this Court’s appellate jurisdiction, and this Court’s—or any court’s—ability to

review the Commissioner’s actions in a procurement. They essentially argue the

Commissioner should be above the law and the largest procurement in Texas history

should be immune from any judicial scrutiny, even if—as the trial court found—the

procurement is defying Texas law. This novel and misguided attempt to divert the

Court’s attention is understandable given that the record overwhelmingly supports

the trial court’s conclusion that the Children’s Plans are likely to succeed on the

merits and would, along with 1.5 million Medicaid members across the state, suffer

irreparable harm if the procurement is allowed to continue.

The Commissioner relegates her discussion of the equities to the end of her

opposition, and even then ignores the ample record of harms to Medicaid

beneficiaries and the Children’s Plans and makes only vague and unsubstantiated

1
assertions about “serious consequences to the state” from delaying the

procurement—a position belied by the lack of supporting record citations (because

there are none), the fact that HHSC has previously canceled prior procurements and

already agreed to delays in this procurement, and the absence of any such “serious

consequences” during the last fourteen months while the procurement has been

paused.

The Commissioner’s merits arguments largely avoid the record as well. No

wonder: As the trial court found and the Children’s Plans detailed in their motion,

the evidence clearly demonstrates that the Commissioner’s conduct of the

procurement has unlawfully disregarded numerous statutory requirements. Indeed,

the evidence shows that the Commissioner could not have complied with those

mandates given how she ultimately implemented the procurement.

This statutory defiance is no small matter. For example, Texas law requires

consideration of how well bidders have actually provided services to Medicaid

beneficiaries—as opposed to rewarding promises about future services, which is

what the Commissioner has done in this procurement. Disregarding that mandate

has produced an absurd result: a notice of award that excludes the Children’s Plans,

despite their long records providing superior-quality services to their members

through uniquely integrated healthcare systems, while simultaneously providing

Molina significantly more service areas in which to operate, despite HHSC’s recent

2
assessment that Molina “does not meet the quality of care measure minimum

performance standards in any of the programs it operates in.” 5.RR.262 (emphasis

added).

Rather than engage with that reality or the record, the Commissioner and

Molina dodge both and present brand-new arguments on ripeness and exhaustion

that all fail for the same reason—they are based on mischaracterizations of this

litigation. The Children’s Plans claims are ripe and do not require exhausting

administrative remedies because they are ultra vires claims to prevent ongoing

unlawfulness—not claims for judicial review of an already-completed agency

action. Nor were the Children’s Plans required to protest the terms of the solicitation

before the procurement began because their ultra vires claims are based on the

Commissioner’s subsequent, unanticipated violations of the very laws she promised

to follow. And the Children’s Plans do not ask the judiciary to compel a redo of the

procurement but seek only to prevent further unlawful action.

Molina goes even further than the Commissioner to distract from the proper

inquiry under Rule 29.3, ignoring entirely the most important considerations—

harms and equities—and largely avoiding discussion of the merits. Molina instead

argues for unprecedented limits on appellate courts’ broad power under Rule 29.3

and their inherent authority that would handcuff this Court’s ability to grant

necessary temporary relief in this case and elsewhere. Molina’s unyielding self-

3
interest also leads it to make arguments that go far beyond where the Commissioner

dares tread by, for example, arguing that this case cannot become moot even if the

Commissioner executes the contracts at issue—a position the Commissioner herself

shies away from, likely because her predecessor recently argued that a similar case

became moot upon contract execution.

In the end, the Commissioner’s desire for unchecked authority over HHSC’s

actions and Molina’s desire to grow its market share and profit notwithstanding the

illegality of this procurement cause them to largely ignore the most important factor

in the Rule 29.3 analysis: how this illegal procurement will force 1.5 million of some

of Texas’s most vulnerable residents to switch healthcare plans and providers, with

devastating impact to the quality and continuity of care they are currently receiving.

Instead, the Commissioner and Molina coldly brush that reality aside with the

observation that people on Medicaid can and sometimes do choose to switch plans—

as if being forced to change health plans due to an unlawful procurement is the same

as making that choice voluntarily. Preventing those irreparable harms alone provides

more than sufficient justification for granting Rule 29.3 relief.1

1
The Children’s Plans acknowledge this reply brief is longer than typical. The length
results from the need to address two different response briefs that each raises several
threshold jurisdictional arguments not raised before the trial court (and,
consequently, that the Children’s Plans could not have known to address in their
initial motion). Given the stakes—these brand-new arguments are presented as

4
ARGUMENT

I. The Court has jurisdiction to order temporary relief.

Contrary to Molina’s strained and hypertechnical arguments, see Molina

Resp. 11-23, the Court has multiple avenues to grant temporary relief and either

continue the trial court’s temporary injunction or enter a similar injunction during

the pendency of this appeal.

A. Rule 29.3 provides a clear mechanism for relief.

Rule 29.3 “broadly empower[s] the court of appeals to preserve parties’ rights

when necessary” and “gives an appellate court great flexibility in preserving the

status quo based on the unique facts and circumstances presented.” In re Geomet

Recycling LLC, 578 S.W.3d 82, 89 (Tex. 2019) (orig. proceeding). “Depending on

the circumstances, this rule allows a court of appeals to preserve the parties’ rights

even if the temporary order has ‘the same practical effect as denying supersedeas of

the trial court’s injunction.’” Order at 2, Paxton v. Garza, No. 15-25-00116-CV

(Tex. App.—15th Dist. July 17, 2025)

(https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=e5514f08-1990-

406e-af3d-a711025f1fa8&coa=coa15&DT=Order&MediaID=84197a00-8b78-

dispositive, and denial of the motion would threaten the Children’s Plans’ continued
existence—a comprehensive rebuttal is necessary.

5
4c8d-bfe0-dc961e0e10cf) (quoting In re Abbott, 645 S.W.3d 276, 282 (Tex. 2022)

(orig. proceeding)).

Notwithstanding Rule 29.3’s expansive scope—evidenced by the various

equitable objectives it can be employed to serve2—Molina argues for a significant

limitation unsupported by Texas caselaw. Molina’s argument is premised on its

overreading of the word “rights” in Rule 29.3, which allows the Court to “make any

temporary orders necessary to preserve the parties’ rights until disposition of the

appeal.” Seizing on that term, Molina pivots to federal caselaw and contends that

unsuccessful bidders have no “right” to a contract and, thus, Rule 29.3 cannot

provide relief. Molina Resp. 16-21. The argument is flawed twice over.

First, Molina’s novel interpretation of Rule 29.3 finds no support in caselaw.

Molina identifies no Texas precedent for a threshold analysis of a litigant’s

underlying “rights” to assess the propriety of temporary relief. Nor could it. The

point of Rule 29.3 is “to preserve the status quo and prevent irreparable harm to the

parties during the pendency of the appeal.” Children’s Plans Mot. 14 (citation

modified) (quoting Abbott, 645 S.W.3d at 282). Accordingly, the primary—and,

sometimes, exclusive—inquiry undertaken by appellate courts is equitable,

2
See, e.g., Lutheran Church-Mo. Synod v. Concordia Univ. of Tex., No. 03-25-
00342-CV, 2025 WL 1942540, at *1 (Tex. App.—Austin July 16, 2025, no pet. h.)
(per curiam) (granting Rule 29.3 motion filed “to stay trial-court proceedings and
this interlocutory appeal in the interests of comity and judicial economy, to protect
the parties’ rights, and to avoid potentially conflicting rulings”).

6
assessing whether temporary relief is needed to prevent irreparable injury to the

moving party. As the Third Court of Appeals explained,

[w]e do not address the merits of the trial court’s grant of the temporary
injunction because to do so would be to prematurely decide this appeal
without the benefit of full briefing from the parties. Instead, we
conclude based on the record before us that reinstating the temporary
injunction is necessary to preserve the parties’ rights during the
pendency of this appeal.

Masters v. Voe, No. 03-22-00420-CV, 2022 WL 4359561, at *4 (Tex. App.—Austin

Sept. 20, 2022, no pet.); see also, e.g., Tex. Educ. Agency v. A+ Tex. Teachers, No.

03-23-00318-CV, 2023 WL 4981604, at *3 (Tex. App.—Austin Aug. 4, 2023, no

pet.) (awarding temporary relief to preserve party’s rights “without commenting on

the merits of any party’s claims or defenses”). The Texas Supreme Court later noted,

when considering Rule 52.10(b) in the context of Rule 29.3, that “some

consideration of the merits” is also appropriate when undertaking this equitable

inquiry. In re State, 711 S.W.3d 641, 645 (Tex. 2024) (orig. proceeding) (emphasis

added). Even then, however, Rule 29.3 requires only “a preliminary inquiry into the

likely merits of the parties’ legal positions. The merits need not—and often should

not—be definitively determined at this preliminary stage.” Id. (emphasis added).

In short, Rule 29.3 requires an appellate court to consider the equities and, to

a lesser extent, the merits. This is an unremarkable conclusion. After all, Rule 29.3

is “a kind of injunction, so the familiar considerations governing injunctive relief in

other contexts will generally apply in this context as well.” Id.

7
If anything, the primary difference between Rule 29.3 and a temporary

injunction in a trial court is that the merits inquiry is more relaxed here. Compare

id. (Rule 29.3 requires only “a preliminary inquiry into the likely merits”), with

Harley Channelview Props., LLC v. Harley Marine Gulf, LLC, 690 S.W.3d 32, 39

(Tex. 2024) (temporary injunction in trial court requires “a probable right to the

relief sought”). This makes sense: The “preliminary inquiry” at this stage is meant

only to avoid the decidedly inequitable result of “allowing a party who will very

likely lose on the merits to interfere with the legal rights of the opposing party during

the appeal.” State, 711 S.W.3d at 645 (emphasis added).

Here, any inquiry—preliminary or searching—ultimately demonstrates that

the Children’s Plans are likely to succeed. Indeed, they have already met the higher

merits burden applied before the trial court, which “reviewed the evidence and

concluded that [the Children’s Plans] had established a probable right to recovery

on their claims,”3 and this Court should in turn “conclude that reinstating the

temporary injunction is necessary to maintain the status quo and preserve the rights

of all parties.” Abbott v. Doe, No. 03-22-00126-CV, 2022 WL 837956, at *2 (Tex.

3
To the extent the trial court’s conclusion that the Children’s Plans satisfied this
requirement for a temporary injunction was based on factual determinations like
witness credibility, it is entitled to substantial deference—including “review[ing] the
evidence in the light most favorable to the trial court’s order, [and] indulging every
reasonable inference in its favor.” Tex. Dep’t of State Health Servs. v. Holmes, 294
S.W.3d 328, 332 (Tex. App.—Austin 2009, pet. denied).

8
App.—Austin Mar. 21, 2022, no pet.); see also CR.5875-79; infra pp. 23-39 (merits

discussion).

Molina apparently believes Rule 29.3 requires consideration of something

other than the equities and the merits. In claiming Rule 29.3 “can’t supply authority

for the injunction” sought, Molina Resp. 16, Molina does not address the equities at

all, and its discussion of “rights” bears little resemblance to the Commissioner’s

discussion of the merits; the trial court’s findings on the merits; or the Children’s

Plans’ motion. Compare id. at 16-21, with Commissioner Resp. 20-41, CR.5878-84,

and Children’s Plans Mot. 19-41. Instead, Molina’s argument is a digression about

the term “rights” that departs from how this Court and other courts interpret and

apply Rule 29.3. The rule does not “plainly limit[] the scope of the available relief”

in the manner Molina suggests. Molina Resp. 16 (quoting Abbott, 645 S.W.3d at

282).4

Second, Molina’s discussion of federal caselaw involving unsuccessful

bidders’ “rights” miscasts this litigation. Those cases involved claims for which a

plaintiff’s interest in or right to a contract was a necessary prerequisite. See, e.g.,

Perkins v. Lukens Steel Co., 310 U.S. 113, 125 (1940); Coyne-Delany Co. v. Cap.

Dev. Bd., 616 F.2d 341, 343 (7th Cir. 1980). In contrast, the Children’s Plans have

4
Even this language from Abbott is taken out of context, as the “limit” referenced
was merely a check on an appellate court’s ability to provide relief to nonparties.
Abbott, 645 S.W.3d at 282-83.

9
not alleged contract-based claims or asserted a right to contracts. Instead, they seek

to enjoin the Commissioner from continuing with an unlawful procurement, and the

“rights” they assert are not contractual but rather “a private party’s rights against a

state official who has acted without legal or statutory authority.” City of El Paso v.

Heinrich, 284 S.W.3d 366, 368 (Tex. 2009). Molina misses this mark entirely.

The merits inquiry under Rule 29.3 therefore hinges on whether the

Commissioner has acted and likely will continue to act contrary to law. Because she

has and indicated she will continue to do so, see infra pp. 23-39, and the Children’s

Plans and Medicaid beneficiaries will suffer irreparable harm, see infra pp. 39-43,

Rule 29.3 relief is appropriate, see Tex. Educ. Agency v. Hous. Indep. Sch. Dist., 609

S.W.3d 569, 578 (Tex. App.—Austin 2020, no pet.) (per curiam) (“[W]e conclude

that under the particular circumstances presented here, where the appellee alleges

irreparable harm from ultra vires action that it seeks to preclude from becoming final,

to effectively perform our judicial function and to preserve the separation of powers,

we must exercise our inherent authority and use Rule 29.3 to make orders ‘to prevent

irreparable harm to parties that have properly invoked [our] jurisdiction in an

interlocutory appeal.’” (second alteration in original) (quoting Geomet Recycling,

578 S.W.3d at 90)).

10
B. The Court can grant relief under its original jurisdiction and
inherent authority because of the risk of mootness.

As Molina concedes, the Court “may grant [an original writ] to preserve the

subject matter pending appeal and prevent the case from becoming moot.” Parsons

v. Galveston Cnty. Emps. Credit Union, 576 S.W.2d 99, 99 (Tex. App.—Houston

[1st Dist.] 1978, orig. proceeding). Likewise, “[t]he Court has the inherent authority

to issue orders necessary or proper to preserve its jurisdiction during the pendency

of an appeal.” Order at 2, State v. Harris County, No. 15-24-00120-CV (Tex. App.—

15th Dist. Dec. 6, 2024)

https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=997106f4-e0e4-

4012-9193-cd243dcfb017&coa=coa15&DT=Order&MediaID=ab5e4979-f3fd-

4515-8836-403bdcb5eed6). Here, if the Commissioner is not enjoined from

proceeding with the procurement, she could sign and execute the tentatively awarded

contracts and then argue mootness, as her predecessor did in similar circumstances.

See Wilson v. Cmty. Health Choice Tex., Inc., 607 S.W.3d 843, 848 (Tex. App.—

Austin 2020, pet. denied) (prior commissioner “executed and officially awarded

[announced procurement] contracts” in midst of ultra vires litigation and then

asserted case was moot). The Children’s Plans disagree their claims would be

mooted if the contracts were executed, but any such prospect justifies the Court’s

action under its inherent authority and Texas Government Code section 22.221(a).

11
Molina’s counterargument hinges on a single, erroneous premise: that

“[t]here’s no chance that this appeal will become moot before the Court has a chance

to decide its merits.” Molina Resp. 14. Tellingly, the Commissioner does not make

that assertion. And it’s not hard to see why: She has the mootness argument her

predecessor made in Wilson ready to deploy if it suits her. Molina argues that Wilson

is inapposite because the Children’s Plans “seek to enjoin not only completing the

procurement, but also performing the resulting contracts,” id. (citation omitted), but

again, the Commissioner has not advanced this argument. Nor has she disavowed

the position her predecessor took in Wilson. If past is prologue, a mootness claim

would soon follow any contract execution in this case, and the Court therefore has

additional, independent bases to grant interim relief.

II. The Children’s Plans’ claims are ripe.

The Commissioner and Molina erroneously contend the Children’s Plans’

ultra vires claims are not ripe. See Commissioner Resp. 11-15; Molina Resp. 24-27.

Their arguments rely on the Commissioner’s testimony that she (1) will not sign any

new contracts until she has first decided the appeals of denials of the Children’s

Plans’ bid protests and (2) has not yet determined whether the procurement was

lawfully conducted. See Commissioner Resp. 12-13 (citing 6.RR.132-33); Molina

Resp. 25-26 (citing 6.RR.132). Based on that testimony, they argue that claims of

harm are too speculative. But the theoretical possibility that the Commissioner might

12
later change course and grant the Children’s Plans’ bid-protest appeals does not

affect whether their ultra vires claims are ripe now. In determining ripeness, “courts

must consider whether, at the time a lawsuit is filed, the facts are sufficiently

developed so that an injury has occurred or is likely to occur, rather than being

contingent or remote.” Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d

69, 78 (Tex. 2015) (emphasis added) (citation modified). Here, the record shows

both.

First, injury has already occurred in the form of disruptions to the Children’s

Plans’ businesses, loss of staff, and difficulty filling positions caused by the

uncertainty of whether the notice of intent to award will be executed and

implemented. See, e.g., Children’s Plans Mot. 19-22; see also Abbott v. Doe, 691

S.W.3d 55, 75-76 (Tex. App.—Austin 2024, no pet.) (parties’ ultra vires claims

were ripe and did not require final agency determination where parties had already

experienced harm). By itself, harm that has already occurred is sufficient to establish

that the Children’s Plans’ claims are ripe.

Second, the Commissioner’s actions show that additional harm is likely to

occur. As she conceded below, the Commissioner signed off on a February 2024

action memo requesting her approval to issue the notice of intent to award knowing

it would eliminate the Children’s Plans. 6.RR.140; 12.RR.PX.284. She even

contemplated changing the outcome to award contracts to the Children’s Plans but

13
determined she could not. 6.RR.141 (“I actually wanted to try to find a way to add

them back in, but I couldn’t—I couldn’t come up with a principled way to do it[.]”).

Furthermore, the Commissioner’s appeal of the trial court’s temporary injunction

and her lengthy defense of the legality of the procurement in her response, see

Commissioner Resp. 20-41, clearly establish that the Commissioner’s denial of the

Children’s Plans bid-protest appeals is a foregone conclusion.5

The Commissioner also claims, “[w]hen a plaintiff alleges that an agency has

incorrectly applied the law governing the subject of its dispute, that claim is not ripe

if the plaintiff has not availed himself of the available recourse under that law.”

Commissioner Resp. 14 (citing Riner v. City of Hunters Creek, 403 S.W.3d 919,

923-24 (Tex. App.—Houston [14th Dist.] 2023, no pet.); Marble Falls Indep. Sch.

Dist. v. Scott, 275 S.W.3d 558, 567 (Tex. App.—Austin 2008, pet. denied)). Molina

argues likewise. See Molina Resp. 27 (citing Patterson v. Planned Parenthood of

Hous. & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998); City of Anson v. Harper,

216 S.W.3d 384, 395 (Tex. App.—Eastland 2006, no pet.)). The cases the

Commissioner and Molina cite, however, are readily distinguishable because they

5
Molina cites Webster v. Commission for Lawyer Discipline, 704 S.W.3d 478, 488
(Tex. 2024), to suggest this Court “must presume that Commissioner Young will
consider the Losing Plans’ appeals with an open mind and resolve them in line with
the law,” Molina Resp. 26. Webster is inapposite to ultra vires claims, as it merely
noted that each branch of government should be presumed to be acting in good faith
in determining whether there has been a violation of the separation of powers.

14
did not involve ultra vires claims, which do not require exhaustion of administrative

remedies. See infra pp. 16-20.

Indeed, the very nature of ultra vires claims demonstrates why the Children’s

Plans’ claims are ripe. Forcing the Children’s Plans to wait for a decision on their

bid-protest appeals would allow the Commissioner time to ink contracts with the

intended MCOs before the Children’s Plans have time to stop her—which she

testified she would do.6 Ultra vires claims brought at that point would be open to

challenge for mootness, as the Commissioner’s predecessor argued in a similar case.

See supra p. 11. And any ultra vires claim to rescind the already-executed contracts

would be open to challenge on immunity grounds as improperly seeking

retrospective relief. See, e.g., Heinrich, 284 S.W.3d at 369 (ultra vires claims are

limited to equitable prospective relief).

The Supreme Court has stated that “[r]ipeness concerns not only whether a

court can act—whether it has jurisdiction—but prudentially, whether it should.”

Perry v. Del Rio, 66 S.W.3d 239, 249-50 (Tex. 2001) (“In assessing ripeness, . . . a

court is required to evaluate both the fitness of the issues for judicial decision and

6
See 6.RR.132 (“[A. O]nce that [bid protest] is finished, then I would move
forward.”); 6.RR.147 (“Q. And if you were to deny those appeals, then you could
execute the contracts immediately at any time after denying those appeals; right?
A. Yes, ma’am.”); id. (“Q. But there wouldn’t be any waiting period or time period.
You could execute the contracts immediately after denying the appeals? A. Yes,
that’s correct[.]”).

15
the hardship to the parties of withholding court consideration.” (citation modified)).

Here, the Court not only can act but should act. Given that the Commissioner’s

denial of the Children’s Plans’ bid-protest appeals is a foregone conclusion and that

she will sign the contracts in question immediately thereafter, the resulting harm to

the Children’s Plans and their members, see infra pp. 39-43, justify judicial action

to preserve the status quo while this suit and appeal are pending.

III. Exhaustion of administrative remedies is not required when asserting
ultra vires claims.

The Commissioner also argues (incorrectly) that the Children’s Plans have not

exhausted their administrative remedies in two respects: by (1) failing to protest the

terms of the solicitation that initiated the procurement and (2) failing to wait for the

Commissioner’s final decision on their bid-protest appeals. See Commissioner

Resp. 15.

As to the Commissioner’s first exhaustion argument, objecting to the

solicitation’s terms was not required because the ultra vires claims are not based on

the unlawfulness of the solicitation. Instead, the Children’s Plans challenge the

illegality of the Commissioner’s subsequent conduct of the procurement, which

violated the very statutes that she expressly promised to obey. See infra pp. 23-39.

Accordingly, it is immaterial whether the Children’s Plans protested the terms of the

solicitation before bringing these ultra vires claims.

16
As to the Commissioner’s second exhaustion requirement, Texas law does not

require a claimant to exhaust administrative remedies before filing ultra vires claims.

See, e.g., Kilgore Indep. Sch. Dist. v. Axberg, 535 S.W.3d 21, 34 (Tex. App.—

Texarkana 2017, no pet.) (noting that “there are exceptions to the exhaustion-of-

administrative-remedies doctrine,” including “when an administrative agency

purports to act outside its statutory powers”); Brennan v. City of Willow Park, 376

S.W.3d 910, 921-22 (Tex. App.—Fort Worth 2012, pet. denied) (parties were not

required to pursue any type of protest procedure where they alleged that agency acted

outside its statutory powers). This makes sense: As noted above, requiring

exhaustion of administrative remedies would be fundamentally incompatible with

the ultra vires cause of action, which is limited to prospective relief. See supra p. 15.

Moreover, ultra vires claims are common-law claims, and exhaustion is not a

general precondition to suit in district court absent a statute establishing an

exhaustion requirement. See Cash Am. Int’l Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex.

2000) (“When exhaustion is required, courts may review the administrative action

only at the time and in the manner designated by statute.” (emphasis added)). “A

Texas district court . . . is a court of general jurisdiction,” and “the presumption is

that [such courts] have subject matter jurisdiction unless a showing can be made to

the contrary. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000). “Thus, all

claims are presumed to fall within the[ir] jurisdiction . . . unless the Legislature or

17
Congress has provided that they must be heard elsewhere.” Id. (citation modified).

Indeed, “[s]omething unmistakable must be present to displace the strong

presumption of jurisdiction” and, “[a]bsent a compelling showing to the contrary,

we presume that . . . the jurisdiction of a district court—our state’s sole court of

general jurisdiction—remains undisturbed.” S.C. v. M.B., 650 S.W.3d 428, 436, 444

(Tex. 2022).

As an exception to the “strong presumption” of jurisdiction, exhaustion

applies only where the Legislature has made it a prerequisite for jurisdiction. The

most prominent examples are review of administrative decisions under the

Administrative Procedure Act (“APA”), see, e.g., Tex. Dep’t of Protective & Regul.

Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 173 (Tex. 2004), and where an

agency is assigned exclusive jurisdiction, see, e.g., In re Oncor Elec. Delivery Co.,

630 S.W.3d 40, 44-45 (Tex. 2021).

Here, neither applies. Disputes that fall under HHSC’s procurement

regulations are specifically carved out of the APA because bid protests (and any

internal appeals) are not defined as contested cases under the APA. See 1 TEX.

ADMIN. CODE § 391.303(d) (“HHSC will not consider protests filed pursuant to this

subchapter as contested cases under the [APA].”). And, because it is presumed that

a district court has subject-matter jurisdiction, “the burden to demonstrate that

exclusive jurisdiction rests with an administrative agency falls on the party resisting

18
the district court’s jurisdiction.” Oncor Elec. Delivery, 630 S.W.3d at 44-45. The

Commissioner identifies no statute that expressly or impliedly removes these ultra

vires claims from a district court’s general jurisdiction. In sum, the Commissioner

tries to impose an exhaustion requirement where none exists.7

For its part, Molina argues that exhaustion applies except for “ultra vires

claims that challenge an agency’s jurisdiction to decide the matter at all,” Molina

Resp. 30, but the cases it cites do not support this point. Texas Education Agency v.

Cypress-Fairbanks Independent School District was a teacher-termination

proceeding arising under the Education Code, which provided for initial adjudication

by the Education Commissioner. See 830 S.W.2d 88, 89 & n.1 (Tex. 1992). The

Supreme Court thus looked to the APA to determine whether exhaustion was

required, id. at 90, but, as discussed above, the APA does not apply in this case. In

Westheimer Independent School District v. Brockette, the Supreme Court

acknowledged that “intervention by the court in administrative proceedings may be

permissible when an agency is exercising authority beyond its statutorily conferred

powers.” 567 S.W.2d 780, 785 (Tex. 1978). But while the “absence of jurisdiction

7
The Commissioner suggests that, “when an available administrative remedy ‘may
moot the claim . . . the claim is barred.’” Commissioner Resp. 15 (alteration in
original) (quoting Hensley v. State Comm’n on Jud. Conduct, 692 S.W.3d 184, 194
(Tex. 2024)). Hensley, however, hurts the Commissioner more than it helps because
the Supreme Court held that the exhaustion-of-remedies doctrine did not bar the
plaintiff’s ultra vires claim. See 692 S.W.3d at 198.

19
in an administrative agency” was offered as one way an agency might act outside its

authority, id., the Court did not hold that it was the only way. To the contrary, the

Supreme Court has since clarified the broad scope of ultra vires conduct. See, e.g.,

Hous. Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 163 (Tex. 2016)

(ultra vires claims may be based on state actor’s “exercise of judgment or limited

discretion without reference to or in conflict with the constraints of the law

authorizing the official to act”).

IV. The Children’s Plans did not waive their ultra vires claims by failing to
object to the terms of the procurement’s solicitation.

Similarly, the Commissioner incorrectly argues that, when the Children’s

Plans agreed to the terms of the solicitation by submitting their proposals, they

“waived any claim of an ongoing violation of their rights not to be subjected to an

unlawful process” and that “[i]t was at that point the nature of any relief the Court

could have granted became retrospective for purposes of ultra vires law.”

Commissioner Resp. 18-19. Both parts of the Commissioner’s argument are wrong.

First, the Children’s Plans’ claims are based on their objections to the

Commissioner’s execution of the procurement, after they and the other MCOs

submitted their proposals—in large part because how the Commissioner conducted

the procurement violated the promises made in the solicitation.8 The provision of the

8
The solicitation expressly and unambiguously stated that “[p]roposals shall be
evaluated in accordance with State law, including but not limited to, applicable

20
procurement requiring challenges to the content of the solicitation, see 9.RR.PX.38,

is therefore of no relevance.

Second, the Commissioner fails to explain how the Children’s Plans’ alleged

waiver of objections to the contents of the solicitation can somehow convert a claim

for remedial action as to future conduct that has not occurred into a claim for

retrospective relief. Based on the definitions of retrospective and prospective relief

contained in the very case she cites on this point, the Children’s Plans’ ultra vires

claims seeking to prohibit the Commissioner from taking further unlawful action, on

their face, are not attempts to “remedy past violations” but rather to “compel[] legal

compliance going forward.” City of Austin v. Util. Assocs., Inc., 517 S.W.3d 300,

309 (Tex. App.—Austin 2017, pet. denied).

V. The Children’s Plans seek only to halt unlawful conduct, not to compel
the Commissioner to redo the procurement.

The Commissioner erroneously argues that the Children’s Plans are unlikely

to succeed on the merits because they “lack any judicially enforceable right to

compel the Commissioner to redo the procurement process” and “[n]othing in the

provisions of Chapters 533, 536, and 2155 of the Texas Government Code.”
9.RR.PX.38 (emphasis added). The Children’s Plans had no reason to think the
Commissioner would violate that guarantee. See 5.RR.85 (testimony by Ms. Molina
agreeing that “it was reasonable . . . for a bidder to—or prospective bidder to
understand that the agency would in fact comply with” these statutory provisions);
cf. EIS Dev. II, LLC v. Buena Vista Area Ass’n, 715 S.W.3d. 689, 699 (Tex. 2025)
(“Waiver is an intentional relinquishment of a known right or intentional conduct
inconsistent with claiming that right.” (citation modified)).

21
statutes governing that process authorizes a court to order such relief.”

Commissioner Resp. 16. But the Children’s Plans do not seek to compel the

Commissioner to redo the procurement. See CR.3308-3506, 4716-5832 (Children’s

Plans’ pleadings and applications for injunctive relief). Rather, they seek to enjoin

the Commissioner from continuing to engage in unlawful conduct in the future—

and that is the prospective relief the trial court granted. See CR.5876 (“Plaintiffs

properly seek only prospective relief—specifically, injunctive relief prohibiting

Defendant from awarding, executing, or otherwise implementing the intended RFP

contracts and thus preventing further unlawful acts in connection with Defendant’s

procurement or contracting processes[.]”); CR.5883 (ordering that Commissioner

“shall refrain from awarding, signing, entering into, executing, implementing, or

otherwise taking action to effectuate or perform any contracts resulting from or in

connection with the STAR & CHIP RFP or to further the procurement or contracting

processes for the STAR & CHIP RFP”).9

9
The Commissioner cites In re Stetson Renewables Holdings, LLC, 658 S.W.3d 292,
297 (Tex. 2022) (orig. proceeding), and Morath v. Kingsville Indep. Sch. Dist., 710
S.W.3d 918, 925 (Tex. App.—15th Dist. 2025), in support of its argument.
Commissioner Resp.16-17. Both cases are inapposite. In neither case did the
Supreme Court or this Court hold that a common-law ultra vires claim may be
asserted only when the Legislature expressly provides a judicial remedy. Nor did
either court hold that an ultra vires claim must be dismissed unless it seeks a remedy
expressly authorized by the statute allegedly violated. The Children’s Plans’ ultra
vires claims merely seek to prohibit the Commissioner from further violating
established statutory mandates, and the Supreme Court has held such prospective
injunctive relief is a proper remedy for ultra vires conduct. See, e.g., Heinrich, 284

22
Ignoring the Children’s Plans’ pleadings and the trial court’s injunction, the

Commissioner cites instead to a declaration provided by an expert for Appellee

Superior HealthPlan, Inc. See Commissioner Resp. 19 (citing CR.3279). But that

expert merely expressed her opinion that “[t]he only remedy that can cure” the

Commissioner’s unlawful disclosure of Superior’s proposals to competitors during

the procurement—which is just one of the many ultra vires acts committed by the

Commissioner—“is to cancel the Notice of Intent to Award and to redo the entire

process.” CR.3279. Whether the Commissioner ultimately pursues that course of

action is yet to be seen, but redoing the process is not relief the Children’s Plans

have sought.

VI. The Commissioner’s procurement is violating statutory and regulatory
mandates—and she will continue to commit ultra vires acts.

Following a four-day evidentiary hearing, the trial court concluded that the

Commissioner has disregarded numerous mandatory considerations and

preferences. HHSC’s witnesses methodically conceded the relevance of these

requirements while failing to identify record evidence of their application—thus

demonstrating they should have been applied in this procurement but have not been.

The merits therefore support temporary relief.

S.W.3d at 368-69 (governmental immunity “does not preclude prospective
injunctive remedies in official-capacity suits against government actors who violate
statutory . . . provisions”).

23
A. The record shows the Commissioner is disregarding legal
requirements, which is not within her discretion.

The Commissioner’s merits argument in response, see Commissioner Resp.

20-41, suffers from a fundamental misunderstanding of the Children’s Plans ultra

vires claims. Ultra vires actions can include acts of “limited discretion . . . in conflict

with the constraints of the law authorizing the official to act.” Hous. Belt, 487

S.W.3d at 163; see also Wilson, 607 S.W.3d at 854-55 (unlawful HHSC procurement

administration can constitute ultra vires action). The Children’s Plans’ ultra vires

claims are not based on how the Commissioner exercised her discretion, as she

repeatedly and erroneously suggests in her response, but whether she complied with

her legal obligations at all.

The record in turn demonstrates that the Commissioner has failed to apply

mandatory considerations—and that she could not have taken these considerations

into account given how the procurement was ultimately structured and scored. Most

notably, the laws the Commissioner has disregarded require consideration of prior

or current data—bidders’ past performances, prior implementation of quality

initiatives, and current provider networks, for example. But HHSC’s evaluation of

bids (both its Technical Questions and the instructions given to evaluators) focused

almost exclusively on respondents’ promises about the future. For example:

• Mr. Ramirez admitted that evaluators were instructed to consider
how respondents would perform in the future and did not

24
“document anything about what [respondents] have done in the
past or are presently doing.” 5.RR.230.

• Nothing in the evaluator training materials instructed them “to
give any of the statutory preferences or considerations at issue in
this case.” 5.RR.229; see also, e.g., 5.RR.89 (agreeing that “there
was no discussion of preference whatsoever with the
evaluators”); 5.RR.88-89 (evaluators were not trained on or
asked to score section 533.003(a)(1) preference or instructed on
section 536.052(d) preference).

• HHSC has not considered data relevant to these issues it already
had in its possession. See 5.RR.230-31 (agreeing that “the agency
did not consider any . . . data in this procurement unless it was
provided in response to one of the questions”).

In sum, as the procurement was implemented, the Commissioner could not have

satisfied her statutory obligations even if she had wanted to.

The Children’s Plans do not suggest the Commissioner merely “made a

mistake or ‘got it wrong’” when making decisions she is “statutorily empowered to

make.” Commissioner Resp. 21 (quoting Util. Assocs., 517 S.W.3d at 310). Instead,

they contend (and the record confirms) that the Commissioner completely

disregarded statutory mandates and thus “exercised discretion ‘without reference to

or in conflict with the constraints of the law authorizing [her] to act.’” Id. (alteration

in original) (quoting Hall v. McRaven, 508 S.W.3d 232, 241 (Tex. 2017)). And the

trial court found that the Commissioner is indeed administering the procurement in

conflict with governing state law by disregarding, ignoring, or otherwise violating

multiple statutory and regulatory mandates. The Commissioner acknowledged on

25
the stand that these violations are ongoing because the procurement has not yet been

completed. See 6.RR.128 (“[Q.] Mr. Ramirez testified earlier that the procurement

is ongoing. You would agree with that? A. Yes, sir.”). This confirms that the

Children’s Plans properly seek prospective relief.

B. The Children’s Plans have standing.

The Commissioner’s standing argument, see Commissioner Resp. 25-26,

misapprehends the standing analysis for challenges to a procurement and for ultra

vires claims.

In some bid-protest cases—say, where a challenge addresses an isolated

scoring issue—a protesting party might lack standing because the error could not

have affected the procurement’s outcome. But in a more comprehensive challenge

to a procurement, “a bid protester has standing when, assuming its protest is

successful, it would have an opportunity to participate in a new procurement.” VAS

Realty, LLC v. United States, 26 F.4th 945, 949 (Fed. Cir. 2022); see also, e.g.,

Tinton Falls Lodging Realty, LLC v. United States, 800 F.3d 1353, 1358 (Fed. Cir.

2015) (bid protester can establish standing “by showing that it was an actual or

prospective bidder whose direct economic interest would be affected by the award

of the contract or by failure to award the contract”). Likewise, bidders for

government contracts who allege endemic illegality have standing to seek “forward-

looking relief” if they plan to bid on future contracts that would contain the same

26
challenged infirmity. Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 210-11

(1995). Here, even if they were required to, the Children’s Plans have met this

burden by demonstrating (as the trial court found) pervasive statutory and regulatory

violations infecting the entire procurement—and another ongoing procurement, see

infra note 11—thus rendering the results unlawful.10

But though helpful to the Children’s Plans, the standing caselaw from federal

bid-protest cases is ultimately irrelevant here. Whether a “clear and prejudicial”

violation must be shown for a court to “set aside a procurement decision” in a bid-

protest case, Commissioner Resp. 26 (emphasis omitted) (quoting Elcon Enters.,

Inc. v. Wash. Metro. Area Transit Auth., 977 F.2d 1472, 1478 (D.C. Cir. 1992)), is

of no moment because the Children’s Plans do not ask any court to set aside the

procurement. Instead, in accordance with Texas ultra vires jurisprudence, they seek

to enjoin future unlawful actions by the Commissioner that would perpetuate the

unlawful acts that have already occurred. The Commissioner does not suggest, and

cannot show, that the Children’s Plans lack standing to secure prospective relief

given the injuries inflicted on them by the unlawful procurement (and consequent

10
That the plaintiff managed care organization in Wilson was able to point to a single
dispositive error in that procurement as “the only entity qualifying for a mandatory
contract award,” Commissioner Resp. 26-27, was merely a factual quirk of that
case—not a prerequisite for seeking prospective relief in a challenge involving a
procurement.

27
denial of their bids) and their intention to participate in future procurements. See,

e.g., Lazarides v. Farris, 367 S.W.3d 788, 801 (Tex. App.—Houston [14th Dist.]

2012, no pet.) (applying “general rule [that], to have standing[,] an individual must

demonstrate a particularized interest in a conflict distinct from that sustained by the

public at large” in ultra vires context).11

C. The Commissioner’s exhaustion-of-remedies argument remains
fundamentally misguided.

No more availing is the Commissioner’s exhaustion-inflected argument, see

Commissioner Resp. 26, 28, which fails for the same reasons discussed above, see

supra pp. 16-20. It is worth repeating, however, that the Children’s Plans could not

have “raise[d] their objections” or initiated “pre-bid protest[s]” on the same grounds

that underlie this lawsuit because it was not apparent from the solicitation that the

Commissioner would defy the law. Far from it: The procurement expressly promised

that “[p]roposals [would] be evaluated in accordance with State law.” 9.RR.PX.38.

Given this assurance, the Children’s Plans had no reason to presume, much less

claim through the formal administrative-protest process, that the Commissioner

would defy those statutes and act in an ultra vires manner. See supra note 8.

11
The concern that these statutory and regulatory violations might occur in future
HHSC procurements is not merely hypothetical: The trial court found that the
forthcoming STAR Kids procurement will be conducted in the same flawed manner
as the STAR & CHIP procurement and “will therefore also violate statutory and
regulatory requirements and be ultra vires.” CR.5878-79 (⁋ 9).

28
This exhaustion argument is part and parcel of a recurring theme in the

Commissioner’s brief: that any fault lies with the Children’s Plans, not the

Commissioner. The Commissioner suggests the Children’s Plans should have

protested the procurement in advance—even though they had no basis to believe it

would be conducted unlawfully.12 The Commissioner further argues bidders should

have provided certain information even if the procurement did not request it,

reasoning they “have every incentive to make their best case for why the State should

contract with them.” Commissioner Resp. 28. But the procurement was not styled as

an open-ended exercise that afforded respondents unfettered discretion and

unlimited opportunity to provide every piece of information conceivably relevant to

their bids. Specific questions were asked, tight page limits were imposed, and

bidders were directed to respond only to the Technical Questions and not provide

any other materials. See 5.RR.84-85, 96-97; 7.RR.18, 88-89; 9.RR.PX.38. In the

end, the Commissioner did not ask the necessary questions, collect the mandated

information, consider relevant data already in HHSC’s possession, or instruct the

procurement evaluators to award points for the required considerations and

12
That the procurement’s Technical Questions did not ask about critical issues like
past performance and quality metrics does not change this conclusion. HHSC had in
its possession volumes of data, including quality metrics, about the Children’s Plans
and other bidders, so the Technical Questions’ shortcomings did not necessarily
indicate that the Commissioner would fail to apply these mandatory considerations.

29
preferences. The Commissioner cannot pass the buck here; the procurement’s

illegalities are her own doing, not the Children’s Plans’.

D. The record shows the Commissioner has failed to comply with
multiple statutory and regulatory mandates.

A thoughtful examination of the record confirms the trial court’s conclusion

that the Children’s Plans have a probable right to relief on their ultra vires claims,

and the Commissioner’s attempts to distract from the record are unavailing.

1. The Commissioner has not complied with section 2155.144
when determining “best value.”

The Commissioner is required to “document that [she] considered” an

enumerated list of “relevant factors” to ensure that “any procurement method

approved by [her] provides the best value to the agency.” TEX. GOV’T CODE

§ 2155.144(c). Among the listed factors are “indicators of probable vendor

performance under the contract such as past vendor performance, the vendor’s

financial resources and ability to perform, the vendor’s experience and

responsibility, and the vendor’s ability to provide reliable maintenance agreements.”

Id. § 2155.144(d)(5) (emphasis added).

The Children’s Plans elicited overwhelming evidence from HHSC officials

that the Commissioner failed to “consider” and “document . . . past vendor

30
performance” as required by statute. Among other evidence and testimony,13 Mr.

Ramirez conceded that past performance is relevant and must be considered in this

procurement, 5.RR.226-27, but further admitted that it “was not an express and

independent consideration in this procurement”; that “there is no specific

documentation showing the agency’s consideration of relevant factors including past

performance”; and that “the agency did not require the submission of past vendor

performance.” 5.RR.227-28; see also CR.5839-63. Tellingly, HHSC rejected the

recommendation of Mercer, its outside consultant, to include past performance as a

separate category with independent scoring weight, 5.RR.181; 9.RR.PX.114, a clear

indication of the Commissioner’s failure to consider this factor.14

Confronted with the overwhelming evidence adduced at the hearing, the

Commissioner deploys a legal feint, arguing that, because “section 2155.144(d) does

13
The Children’s Plans submitted to the trial court a detailed catalogue of all relevant
evidence adduced at the hearing in support of their claims. See CR.5839-63. In the
interest of brevity, they will cite to this summary throughout their merits argument.
14
The Commissioner attempts to recast this piece of evidence in her favor,
suggesting the rejection of Mercer’s recommendation constituted an exercise of
“judgment and deliberation” for which no ultra vires claim can be made.
Commissioner Resp. 24-25. But because consideration of past performance was
mandatory, the Commissioner did not have discretion to disregard it altogether. This
doesn’t mean the Commissioner was required to agree with Mercer about exactly
how to take account of past performance, contra id. at 41 (“Among the other legal
obligations Plaintiffs create out of whole cloth is the requirement to always agree
with the agency’s hired consultant.”), but her rejection of this particular
recommendation is compelling evidence of her failure to consider and document a
mandatory factor.

31
not require consideration of every enumerated factor,” this “statutory scheme [] vests

‘absolute discretion’ in the Commissioner with respect to weighing and applying the

factors” and cannot support an ultra vires claim. Commissioner Resp. 22-23

(quoting Hall, 508 S.W.3d at 241). But she misreads the statutory text and

contradicts the sworn testimony of the procurement’s point person: While

subsection (d) of section 2155.144 provides that the Commissioner “may consider

all relevant factors in determining the best value, including” the enumerated factors,

subsection (c) instructs that the Commissioner “shall document that [she] considered

all relevant factors under Subsection (d) in making [an] acquisition.” TEX. GOV’T

CODE § 2155.144(c)-(d) (emphasis added). The proper interpretation of the statute’s

use of both “may” and “shall” is that all enumerated factors that are indeed relevant

to a given procurement must be considered—just not that all factors will necessarily

be relevant (and thus considered) in every procurement. For this procurement,

MCOs’ past performances are highly relevant, as Mr. Ramirez, the “point person”

for the procurement, conceded on the stand. See 5.RR.227; 6.RR.121. And, as Mr.

Ramirez also conceded, the Commissioner is required to consider past performance

in this procurement, 5.RR.226-27—yet the evidence shows that neither she nor

anyone else at HHSC did so.

The Commissioner also attempts to rewrite the record, incorrectly stating Mr.

Ramirez’s “testimony at the temporary-injunction hearing was that past performance

32
was documented in the procurement file.” Commissioner Resp. 23. But Mr. Ramirez

claimed that the entire procurement file constitutes “documentation showing the

agency’s consideration of relevant factors including past performance,” but he also

agreed that the file did not demonstrate the Commissioner’s compliance. Id. at 23-

24 (quoting 5.RR.227). And notwithstanding his assurance that, “if past performance

was [in the response], it was considered,” id. at 24 (alteration in original) (quoting

5.RR.110), there is nothing in the record substantiating his ipse dixit—no questions

about past performance or references to past performance in the evaluator

instructions or the ultimate evaluations.15 Mr. Ramirez essentially asked the trial

court to take his word for it that past performance was considered. But section

2155.144 does not allow for that; it requires not only consideration but also

documentation that past performance was considered, which the Commissioner

cannot provide.

Ultimately, the Children’s Plans do not seek to “compel the Commissioner to

weigh certain best-value criteria more favorably than others,” Commissioner

Resp. 24, but rather to ensure that the mandatory criteria are actually considered and

documented as the statute requires. The Commissioner’s coup de grâce in this

15
The utter absence of evidence readily belies the Commissioner’s suggestion that
“the evidence conclusively shows HHSC’s compliance with all applicable statutes,”
Commissioner Resp. 25—as does the fact that, despite this assurance, the
Commissioner rarely cites the record in support of her merits arguments.

33
section is to suggest that all applicable statutes were followed because she promised,

ahead of time, that they would be. See id. at 25 (claiming that Children’s Plans’

arguments “contradict[] the express terms of the [procurement] and the procedures

HHSC and its evaluators followed”). The record tells a very different story, and the

Commissioner’s broken promise to comply with the statutes only demonstrates why

her focus on protesting the solicitation is a distraction. See supra pp. 20-21.

2. The Commissioner has failed to consider provider networks
and quality initiatives as required by law.

The Commissioner baldly claims that “[t]he trial court’s findings based on

sections 533.003(a)(1) and 536.052(d) are not based on any finding of an incorrectly

applied or deprived-of preference,” Commissioner Resp. 27, but that is precisely

what the record shows.

First, section 533.003(a)(1) requires the Commissioner to “give preference to

organizations that have significant participation in [their] provider network[s] from

each health care provider in the region who has traditionally provided care to

Medicaid and charity care patients.” TEX. GOV’T CODE § 533.003(a)(1). But no such

preference was given, not least because the procurement did not even ask about

bidders’ existing provider networks (or consider information about networks already

in HHSC’s possession), let alone whether those providers “traditionally provided

care to Medicaid and charity care patients.” See CR.5841-43. Taken together, this

34
evidence demonstrates that section 533.003(a)(1)’s requirements were not applied

at all.16

Second, section 536.052(d) requires the Commissioner to “give preference to

an organization that offers a managed care plan that successfully implements quality

initiatives . . . or meets quality of care and cost-efficiency benchmarks.” TEX. GOV’T

CODE § 536.052(d). Again, this did not happen. The Commissioner never developed

the required benchmarks, and the procurement did not ask for information (or

consider data already in HHSC’s possession) about whether bidders had

implemented quality initiatives. See CR.5843-45. Once again, the significant weight

of evidence demonstrates that the Commissioner did not apply section 536.052(d)—

a decision clearly outside her discretion.

The Commissioner contends otherwise, claiming section 2155.144(n) allows

her to disregard any statutory criteria other than “best value.” Commissioner

Resp. 27. But even setting aside that the Commissioner did not properly apply

section 2155.144, see supra pp. 30-34, this is post hoc revisionism of the highest

16
The Commissioner’s emphasis on other discretionary facets of section
533.003(a)(1) does not help her. She points out that “[a]dditional discretion is
allowed in determining which organizations have ‘significant participation’ in the
provider network from ‘each healthcare provider in the region who has traditionally
provided care to Medicaid and charity care patients.’” Commissioner Resp. 29
(quoting TEX. GOV’T CODE § 533.003(a)(1)). Maybe so—but she cites nothing in the
record showing any of this information was collected or considered. Once again,
while the Commissioner may have had discretion as to how to apply the preference,
she cannot decide to disregard it altogether.

35
order: Nothing in the record suggests the Commissioner or anyone at HHSC

disregarded sections 533.003(a)(1) and 536.052(d) because of a “conflict” with

section 2155.144. See TEX. GOV’T CODE § 2155.144(n) (“To the extent of any

conflict, this section prevails over any other state law relating to the procurement of

goods and services[.]” (emphasis added)). Nor does the Commissioner explain the

substance of any such conflict.

Further confirming the Commissioner’s ex post reinterpretation of the

procurement is her argument that “[o]nly if two bidders offer the same value would

these preferences even need to come into play.” Commissioner Resp. 27. She cites

nothing in the record that this is how HHSC construed and applied statutory

preferences during the procurement. In fact, the record specifically contradicts the

Commissioner’s assertion:

Q. Now, Ms. Molina, would you agree with me that one common
and ordinary meaning of preference would be choosing one thing
over another?

A. That’s one way you could define preference.

Q. But that’s not how HHSC applied preference as used in Section
533.003 in the STAR and CHIP procurement, is it?

A. No. . . .

Q. Now, in applying preferences used in Section 62.155(c), the
agency here applied the term “preference” to mean choosing one
type of respondent over another; correct?

A. Yes.

36
Q. And that was different than how HHSC applied the term
“preference” in 533.003 and 536.052; correct?

A. Yes.

5.RR.93, 119. Moreover, even if this had been the Commissioner’s (erroneous) view

of the law, HHSC could not have operationalized the preferences in this way

because, as the record shows, they did not consider the information required to do

so.

3. The Public Information Act did not compel the wrongful
disclosure of proposals.

In defense of her wrongful disclosure of proposals to Aetna while the

procurement was active, the Commissioner hides behind the Public Information Act

(“PIA”), which, she argues, compelled her to release the information and trumps any

procurement regulation. See Commissioner Resp. 36-38. This position is surprising:

The Children’s Plans are currently engaged in a separate PIA lawsuit in which the

Commissioner has argued that, even as of 2024, analogous documents—including

those HHSC unlawfully released to Aetna—could not be released under the PIA

because such disclosure would harm competitive interests. See TEX. GOV’T CODE

§ 552.104(a). The Attorney General has agreed with this position. See Tex. Att’y

Gen. Open Recs. Letter Ruling OR2023-034773 (2023); Tex Att’y Gen. Open Recs.

Letter Ruling OR2024-018260; Tex. Att’y Gen. Open Recs. Letter Ruling OR2024-

37
019071. This argument is yet another attempt at post hoc revision that the Court

should reject.17

4. The Commissioner has disregarded other procurement
requirements.

The Commissioner superficially addresses other bases for ultra vires conduct.

She argues, for instance, that it is self-evident she “consider[ed] different plans for

different populations, as required by Texas Government Code section

533.003(a)(3),” simply because she “has noticed an intent to award contracts to

different organizations in different service areas.” Commissioner Resp. 32-33. But

the evaluators were not informed which service areas respondents bid on unless the

respondents included that information in their responses, 6.RR.93, and were not

directed to consider service-area-by-service-area differences, 6.RR.224. As for the

other statutory and regulatory violations, the Children’s Plans address the bases for

the trial court’s conclusions in their motion, see Children’s Plans Mot. 33-41, which

the Commissioner’s grab-bag of counterarguments do not refute.

17
The Commissioner also argues that she did not violate 34 Texas Administrative
Code section 20.208(d)(3) because she did not “disclose[] information derived from
proposals,” Commissioner Resp. 37—seemingly proposing a meaningful distinction
between the proposals themselves and isolated information derived from them. This
is unavailing: Increasing the magnitude of harm (by disclosing not only derived
information but the entire proposals) doesn’t somehow limit the severity of the
offense.

38
⁎ ⁎ ⁎

The consequences of the Commissioner’s decision to disregard these and

other statutory mandates are significant, especially for Medicaid beneficiaries.

Molina ultimately scored highest in the procurement even though, by HHSC’s own

estimation, it “does not meet quality of care measure minimum performance

standards in any of the programs it operates in.” 5.RR.262; see also 9.RR.PX.69. Put

plainly, low-performing MCOs rose to the top of the procurement scoring because

the Commissioner did not apply criteria Texas law requires her to—ones that

mandate consideration of how an MCO has performed in the past and its present

provider networks—and instead relied on promises about the future. It’s easy, of

course, to make bold promises about the future. That’s why Texas statutes and

regulations (not to mention common sense) require consideration of bidders’

records. The Commissioner’s obligation to apply these mandatory considerations

was hers and hers alone; her repeated attempts to effectively blame the Children’s

Plans fall flat given they took the Commissioner at her word that she would follow

the law.

VII. The Children’s Plans and their members will be irreparably harmed if
the temporary injunction is not continued pending the final disposition
of this appeal.

Irreparable harm has already occurred—and will continue to occur—if the

procurement is allowed to proceed. The record documents significant harm to the

39
Children’s Plans, their employees, and Medicaid beneficiaries, see Children’s Plans

Mot. 19-28, and the Commissioner does not and cannot refute that showing of harm.

Instead, the Commissioner incorrectly argues the Children’s Plans have failed

to prove irreparable harm from the procurement because they did not present

evidence that “they would have been entitled to a contract under a procurement they

would find acceptable.” Commissioner Resp. 45. The Commissioner’s argument

misunderstands the relief the Children’s Plans seek. Their ultra vires claims are not

contingent on showing they would have been awarded future contracts. Rather, their

claims are based on the irreparable harm to them and their members that will result

from losing their current contracts if the Commissioner’s unlawful conduct

continues. In her notice of intent to award, the Commissioner indicated publicly that

she will not be awarding STAR & CHIP contracts to the Children’s Plans moving

forward. If the Court allows the Commissioner to execute the intended contracts

while this appeal is pending, then the Children’s Plans’ will lose their existing

contracts. Continuing the trial court’s temporary injunction while this appeal is

pending is the only way to prevent the Children’s Plans’ irreparable harm from

occurring because it will keep their existing contracts in effect until this appeal is

disposed.

The Commissioner next recycles her ripeness argument, stating that

irreparable harm has not yet occurred because “she still needs to determine for

40
herself whether the State complied with the law.” Commissioner Resp. 46. But the

Children’s Plans have (1) already sustained irreparable harm that the

Commissioner’s resolution of the bid protests appeal cannot undo and (2) presented

overwhelming evidence that the Commissioner’s denial of their bid-protest appeals

is a foregone conclusion so as to establish the ripeness of their ultra vires claims.

See Patel, 469 S.W.3d at 78; supra pp. 13-14. The Commissioner also argues that a

complaint about contract rights “can rarely establish an irreparable injury,”

Commissioner Resp. 46, but she conspicuously fails to cite any evidence or authority

rebutting the Children’s Plans’ substantial evidence. And importantly, the

Commissioner has nothing to say about irreparable harm to Medicaid beneficiaries,

leaving unrebutted the Children’s Plans’ evidence establishing that their

beneficiaries—including hundreds of thousands of underprivileged children—will

suffer irreparable injury if the procurement is allowed to proceed while this appeal

is pending. See Children’s Plans Mot. 25-28; CR.3140-41. This is in addition to the

harm imposed on Texas taxpayers forced to foot the bill for the Commissioner’s

unlawful actions.

The Commissioner next broadly argues that granting injunctive relief in this

case would be improper because “[a]ny winner of a previous procurement who loses

a later procurement can allege general harms to its business such as a loss of revenue

and the need to lay off employees” and, “[i]f such allegations were legally sufficient

41
to obtain an injunction, the State could be enjoined from moving forward with its

business any time a current State contractor makes a losing bid to continue its

services.” Commissioner Resp. 47. This policy argument not only conflicts with

Texas law holding that business disruption may constitute irreparable harm, see

Children’s Plans Mot. 20, but also reaches too far: If adopted, it would insulate state

officials who conduct procurements from ultra vires actions, giving them free rein

to violate the law and preventing any judicial remedy.18

Moreover, granting the Rule 29.3 motion would not “threaten the very

structure of state government itself,” Commissioner Resp. 47, as the Commissioner

hyperbolically claims. The Commissioner’s concern is only ever triggered when the

party seeking injunctive relief first shows a probable right to relief on its claims

against the State—and while the Children’s Plans have made such a showing, not all

plaintiffs will. Once that showing is made, this Court and the Texas Supreme Court

have held that allowing the State to continue violating the law does not justify the

18
The Commissioner’s argument that the Children’s Plans are not entitled to
equitable relief because they failed to complain about the procurement earlier in the
process, Commissioner Resp. 47-48, fails for the same reasons discussed above,
supra pp. 20-21. It is also unclear how that is relevant to a request to continue the
injunction while this appeal is pending. The Children’s Plans did not sleep on any
rights in connection with their Rule 29.3 motion. As this Court is aware, the parties
reached an agreement with the Commissioner at the beginning of this appeal that
obviated the need to file a Rule 29.3 motion until after the recent legislative session
concluded. The Children’s Plans then filed the motion by the deadline agreed upon
by the Commissioner.

42
preservation of the status quo. See, e.g., In re Newton, 146 S.W.3d 648, 651 (Tex.

2004) (orig. proceeding) (“The plaintiffs argue that the continuation of illegal

conduct cannot be justified as preservation of the status quo, and of course we

agree.”); State v. City of San Marcos, 714 S.W.3d 224, 245 (Tex. App.—15th Dist.

2025, pet. filed) (“Where the acts sought to be enjoined constitute violation of the

law . . . the status quo to be preserved cannot be a continuation of those acts.”). The

only genuine threat to “the very structure of state government” in this case is giving

the Commissioner the unchecked discretion she is demanding without holding her

accountable to the people her unlawful conduct irreparably harms and the

Legislature whose laws she violates.

VIII. The balance of the equities strongly supports continuing the temporary
injunction pending the final disposition of this appeal.

For the purpose of deciding this motion, the balance of the equities must be

reviewed in the context of the specific relief requested, so the only question before

this Court is whether the balance of the equities supports continuing the trial court’s

temporary injunction while this appeal is pending. More concretely, the question is

whether the permanent, irreparable harm that the Children’s Plans and 1.5 million

women and children who depend on Medicaid will suffer if the procurement is

allowed to proceed while this appeal is pending outweighs the temporary prejudice,

if any, to the Commissioner, Molina, and Aetna. The answer is a resounding yes.

Power and profit should not prevail over people and precedent.

43
Ultra vires claims exist to prevent government actors from violating the law.

See, e.g., State v. Hollins, 620 S.W.3d 400, 405 (Tex. 2020). Necessarily, therefore,

the inability to continue violating the law cannot constitute prejudice or inequity that

bars claims for injunctive relief. Yet the Commissioner argues that she possesses the

“intrinsic right to . . . enforce [the State’s] own laws” and would be harmed by a

challenge to her conduct. Commissioner Resp. 43. She is wrong.

At the start, the Commissioner’s argument is legally baseless. She cites no

case holding that the State has any (much less a compelling) interest in continuing

to violate the laws it is supposed to obey and enforce. No wonder: Both this Court

and the Supreme Court have held to the contrary, ruling that the State has no interest

in violating the law and its desire to continue violating the law cannot justify denying

injunctive relief. See supra pp. 42-43; see also State, 711 S.W.3d at 648 (“The

County is not harmed by being required to follow the Texas Constitution.”); Texas

v. Biden, 10 F.4th 538, 560 (5th Cir. 2021) (noting that there is “no public interest

in the perpetuation of unlawful agency action”). The Supreme Court has also

recognized that, while “the State has an intrinsic right to . . . enforce its own laws,”

“where those laws are being defied or misapplied by a local official, an ultra vires

suit is a tool to reassert the control of the state.” Hollins, 620 S.W.3d at 405 (citation

modified); see also, e.g., Chambers-Liberty Cntys. Navigation Dist. v. State, 575

S.W.3d 339, 348-49 (Tex. 2019) (recognizing exception from sovereign immunity

44
for ultra vires claims). These holdings apply with particular force here, where the

trial court found—based on HHSC’s own documents and testimony—that the

Children’s Plans established a probable right to relief.

The Commissioner’s argument—that the State’s interest in enforcing its laws

while this appeal is pending outweighs the permanent, irreparable harm it will inflict

on the Children’s Plans and 1.5 million Medicaid patients—goes too far. That

generic argument, if adopted, would support denial of any Rule 29.3 motion in any

appeal where the trial court has issued injunctive relief against a governmental

official for unlawful conduct. And that would fatally undermine Rule 29.3, allowing

the State to invalidate any injunctive relief entered against it simply by filing a notice

of appeal. Such a sweeping rule conflicts with the Supreme Court’s recognition only

four years ago that the prohibition against counter-supersedeas in appeals brought

by the State does not preclude an appellee from requesting—and a court of appeals

from continuing—a trial court’s grant of injunctive relief while an appeal is pending.

See In re Tex. Educ. Agency, 619 S.W.3d 679, 680 (Tex. 2021) (orig. proceeding)

(explaining that “prohibition against counter-supersedeas is textually limited to the

supersedeas context and does not purport to constrain an appellate court’s power to

issue temporary orders under other authority” like Rule 29.3).19

19
The same arguments above refute the Commissioner’s contention that continuing
the trial court’s temporary injunction while this appeal is pending would inequitably
enjoin a procurement process that HHSC “spent significant time and State

45
The Commissioner also claims, without analysis or citation to any record

evidence, that continuing the trial court’s temporary injunction while this appeal is

pending would jeopardize continuity of care. Commissioner Resp. 44. The

Commissioner has it completely backwards. As the trial court found—and the parties

do not dispute—the existing Medicaid contracts have already been extended and will

continue to be extended while the temporary injunction remains in effect, thus

allowing Texas Medicaid beneficiaries to remain with their current plans. See

CR.5882; 5.RR.181. In contrast, allowing the procurement to continue threatens the

continuity of care for 1.5 million Medicaid beneficiaries by forcing them to switch

healthcare plans and, potentially, healthcare providers. Children’s Plans Mot. 23-25.

And every one of the Children’s Plans’ 500,000-plus beneficiaries will lose access

to the mission-driven, high-quality, integrated pediatric healthcare organizations that

only the Children’s Plans offer. Id. at 25-28. The Commissioner’s speculative

contention that “provider networks likely will naturally realign to provide continuity

of care for patients even under a new plan,” Commissioner Resp. 50, overlooks this

resources” to bring about and are “impacting other procurements in this space that
have been in process for years.” Commissioner Resp. 43-44. As the trial court
concluded, the Commissioner did not carry out a lawful procurement process, and
her failure on that front should not be rewarded by allowing the unlawful
procurement to move forward while this appeal is pending. As to “the other
procurements in this space,” that presumably refers to the STAR Kids procurement,
which the trial court found in its temporary-injunction order to have involved a
substantively identical and unlawful procurement process as the STAR & CHIP
procurement. CR.5878-79, 5883.

46
unique feature of the Children’s Plans and the undisputed evidence that an integrated

system is better for Medicaid beneficiaries. 8.RR.34-35, 137-38.

The Commissioner’s argument that an injunction would “jeopardize . . . the

ability to effectively manage the programs,” Commissioner Resp. 44, likewise lacks

reasoning or evidence—not least of all evidence of any negative effects on program

management while the trial court’s injunction has been in place for the past year.

Indeed, the Commissioner presents no evidence of any harm to her, HHSC,

Medicaid beneficiaries, or the public as a result of the procurement being paused

because of this litigation.

The Commissioner’s argument that she possesses exclusive authority to

determine “which contracts for which managed care organizations best serve the

public interest” and a judicial determination that STAR & CHIP contracts should

have been awarded to the Children’s Plans would violate the separation of powers,

Commissioner Resp. 48-49, again mischaracterizes this litigation and the relief

sought. The Children’s Plans do not seek a judicial determination that any contracts

should have been awarded to them. The crux of this case is whether the procurement

has been and will continue to be conducted unlawfully. To be clear, the Children’s

Plans are not arguing that incumbency is a virtue unto itself, as the Commissioner

suggests. Commissioner Resp. 49. They instead argue what the evidence shows—

47
unnecessarily and unlawfully forcing beneficiaries to switch plans and providers will

adversely impact the continuity and quality of care those beneficiaries receive.

Finally, the Commissioner argues that halting the issuance of the awards is

against the public interest, citing a statute that says “[i]t is the intent of the

Legislature that agencies and institutions minimize the use of extensions that extend

a contract beyond the base term and any optional extensions provided in a contract.”

Commissioner Resp. 52 (citation modified). But the statute does not say that contract

extensions are prohibited or against the public interest. It merely says that contract

extensions should be minimized and, even then, does not explain when contract

extensions should and should not be granted. It strains belief to conclude from this

general guidance that the Legislature would oppose the extension of an existing

contract if the proposed replacement contract was the product of the Commissioner’s

unlawful disregard of the Legislature’s procurement laws.20

CONCLUSION

For the reasons herein and in their motion, the Children’s Plans respectfully

request that this Court grant their motion for temporary relief under Rule 29.3 and

20
Molina and Aetna similarly fail to establish any legitimate risk of prejudice, much
less prejudice sufficient to outweigh the irreparable harm the Children’s Plans and
1.5 million Medicaid patients would suffer. Molina does not even bother addressing
the equities at all in its response, which Aetna joined. And they certainly have not
shown that they would be prejudiced by any delay in executing the contracts while
this appeal is pending, as no one suggests they would not receive the full terms of
the contracts under the procurement if they ultimately prevail.

48
issue a new injunction continuing or maintaining the trial court’s temporary

injunction, to remain in effect until disposition of this appeal. The Children’s Plans

further request all other relief to which they are entitled.

49
Respectfully submitted,

/s/ Warren S. Huang /s/ Amy Warr______________
Susan Feigin Harris Amy Warr
susan.harris@nortonrosefulbright.com State Bar No. 00795708
Warren S. Huang awarr@adjtlaw.com
warren.huang@nortonrosefulbright.com Anna M. Baker
NORTON ROSE FULBRIGHT US, LLP State Bar No. 00791362
1550 Lamar, Suite 2000 abaker@adjtlaw.com
Houston, Texas 77010 ALEXANDER DUBOSE & JEFFERSON
Telephone: (713) 651-5151 LLP
100 Congress Avenue, Suite 1450
Paul Trahan Austin, Texas 78701-2709
paul.trahan@nortonrosefulbright.com Telephone: (512) 482-9300
NORTON ROSE FULBRIGHT US, LLP Facsimile: (512) 482-9303
98 San Jacinto Boulevard, Suite 1100
Austin, Texas 78701 Karen C. Burgess
Telephone: (512) 474-5201 kburgess@burgesslawpc.com
Katie Dolan-Galaviz
Thomas A. Coulter kgalaviz@burgesslawpc.com
tom.coulter@nortonrosefulbright.com BURGESS LAW PC
NORTON ROSE FULBRIGHT US, LLP 404 West 13th Street
799 9th Street, NW, Suite 1000 Austin, Texas 78701-1825
Washington, D.C. 20001 Telephone: (512) 482-8808
Telephone: (202) 662-0200
Matthew P. Gordon
COUNSEL FOR PLAINTIFF TEXAS mgordon@perkinscoie.com
CHILDREN’S HEALTH PLAN PERKINS COIE LLP
1201 Third Avenue, Suite 4900
Seattle, Washington 98101-3099
Telephone: (206) 359.8000

COUNSEL FOR PLAINTIFF COOK
CHILDREN’S HEALTH PLAN

50
CERTIFICATE OF SERVICE

I hereby certify that on September 24, 2025, a true and correct copy of Rule

29.3 Reply of Appellees Cook Children’s Health Plan and Texas Children’s Health

Plan was served via electronic service on all parties through counsel of record, listed

below:

Ken Paxton Cheryl Joseph LaFond
Attorney General of Texas clafond@scottdoug.com
Brent Webster Jason LaFond
First Assistant Attorney General jlafond@scottdoug.com
William R. Peterson SCOTT, DOUGLASS & MCCONNICO LLP
Solicitor General 303 Colorado Street, Suite 2400
William F. Cole Austin, Texas 78701
Principal Deputy Solicitor General
william.cole@oag.texas.gov COUNSEL FOR MOLINA
Cory A. Scanlon HEALTHCARE OF TEXAS, INC.
Assistant Solicitor General
cory.scanlon@oag.texas.gov
OFFICE OF THE ATTORNEY GENERAL Joseph R. Knight
P.O. Box 12548 (MC 059) jknight@ebbklaw.com
Austin, Texas 78711-25848 EWELL, BROWN, BLANKE & KNIGHT LLP
111 Congress Avenue, Suite 2800
COUNSEL FOR APPELLANT CECILE ERWIN Austin, Texas 78701
YOUNG, IN HER OFFICIAL CAPACITY AS
EXECUTIVE COMMISSIONER OF THE Mark J. Kessler
TEXAS HEALTH AND HUMAN SERVICES Admission Pro Hac Vice
COMMISSION mkessler@taftlaw.com
TAFT STETTINIUS & HOLLISTER LLP
41 South High Street, Suite 1800
Columbus, Ohio 43215-6106

COUNSEL FOR AETNA BETTER
HEALTH OF TEXAS, INC.

51
Robert F. Johnson III Richard B. Phillips, Jr.
rjohnson@foley.com rich.phillips@hklaw.com
FOLEY & LARDNER LLP HOLLAND & KNIGHT LLP
600 Congress Avenue, Suite 3000 One Arts Plaza
Austin, Texas. 78701 1722 Routh Street, Suite 1500
Telephone: (512) 542-7000 Dallas, Texas 75201

Michelle Y. Ku Karen D. Walker
mku@foley.com Admission Pro Hac Vice
Stacy R. Obenhaus karen.walker@hklaw.com
sobenhaus@foley.com Tiffany Roddenberry
FOLEY & LARDNER LLP Admission Pro Hac Vice
2021 McKinney, Suite 1600 tiffany.roddenberry@hklaw.com
Dallas, Texas 75201 HOLLAND & KNIGHT LLP
315 South Calhoun Street, Suite 600
Benjamin J. Grossman Tallahassee, Florida 32301
Of Counsel
bjgrossman@foley.com COUNSEL FOR APPELLEE SUPERIOR
FOLEY & LARDNER LLP HEALTH PLAN, INC.
106 East College Avenue, Suite 900
Tallahassee, Florida 32301

COUNSEL FOR APPELLEE WELLPOINT
INSURANCE COMPANY

/s/ Warren S. Huang
Warren S. Huang

52
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.

Warren Huang on behalf of Warren Huang
Bar No. 796788
warren.huang@nortonrosefulbright.com
Envelope ID: 106043203
Filing Code Description: Response
Filing Description: Response
Status as of 9/24/2025 4:41 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Michaelle Peters mpeters@scottdoug.com 9/24/2025 4:30:05 PM SENT

Julie Wright julie.wright@nortonrosefulbright.com 9/24/2025 4:30:05 PM SENT

Amanda DoddsPrice amanda.price@squirepb.com 9/24/2025 4:30:05 PM SENT

Mandy Patterson mpatterson@adjtlaw.com 9/24/2025 4:30:05 PM SENT

Michelle Joyner mjoyner@scottdoug.com 9/24/2025 4:30:05 PM SENT

William FCole William.Cole@oag.texas.gov 9/24/2025 4:30:05 PM SENT

Abril Rivera arivera@scottdoug.com 9/24/2025 4:30:05 PM SENT

Nancy Villarreal nancy.villarreal@oag.texas.gov 9/24/2025 4:30:05 PM SENT

Maria Williamson maria.williamson@oag.texas.gov 9/24/2025 4:30:05 PM SENT

Jessie Johnson jessie.johnson@nortonrosefulbright.com 9/24/2025 4:30:05 PM SENT

Cory Scanlon cory.scanlon@oag.texas.gov 9/24/2025 4:30:05 PM SENT

David Johns david@cobbjohns.com 9/24/2025 4:30:05 PM SENT

Stacey Jett sjett@adjltaw.com 9/24/2025 4:30:05 PM SENT

Associated Case Party: Cook Children's Health Plan

Name BarNumber Email TimestampSubmitted Status

Karen Burgess 796276 kburgess@burgesslawpc.com 9/24/2025 4:30:05 PM SENT

Anna Baker 791362 abaker@adjtlaw.com 9/24/2025 4:30:05 PM SENT

Amy Warr 795708 awarr@adjtlaw.com 9/24/2025 4:30:05 PM SENT

Juliana Bennington jbennington@perkinscoie.com 9/24/2025 4:30:05 PM SENT

Jonathan Hawley jhawley@perkinscoie.com 9/24/2025 4:30:05 PM ERROR

Trisha Marino tmarino@perkinscoie.com 9/24/2025 4:30:05 PM SENT
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.

Warren Huang on behalf of Warren Huang
Bar No. 796788
warren.huang@nortonrosefulbright.com
Envelope ID: 106043203
Filing Code Description: Response
Filing Description: Response
Status as of 9/24/2025 4:41 PM CST

Associated Case Party: Cook Children's Health Plan

Trisha Marino tmarino@perkinscoie.com 9/24/2025 4:30:05 PM SENT

Katie Dolan-Galaviz kgalaviz@burgesslawpc.com 9/24/2025 4:30:05 PM SENT

Perkins Docketing Team DocketSEA@perkinscoie.com 9/24/2025 4:30:05 PM SENT

Matthew Gordon mgordon@perkinscoie.com 9/24/2025 4:30:05 PM SENT

Associated Case Party: Wellpoint Insurance Company

Name BarNumber Email TimestampSubmitted Status

Robert Johnson 10786400 rjohnson@foley.com 9/24/2025 4:30:05 PM SENT

Michelle Ku 24071452 mku@foley.com 9/24/2025 4:30:05 PM SENT

Kristin Hernandez kristin.hernandez@foley.com 9/24/2025 4:30:05 PM SENT

Stacey Obenhaus sobenhaus@foley.com 9/24/2025 4:30:05 PM SENT

Benjamin Grossman bjgrossman@foley.com 9/24/2025 4:30:05 PM SENT

Associated Case Party: Superior Healthplan Inc.

Name BarNumber Email TimestampSubmitted Status

Richard Phillips 24032833 Rich.Phillips@hklaw.com 9/24/2025 4:30:05 PM SENT

J McCaig 24070083 meghan.mccaig@outlook.com 9/24/2025 4:30:05 PM SENT

Karen Walker karen.walker@hklaw.com 9/24/2025 4:30:05 PM SENT

Tiffany Roddenberry tiffany.roddenberry@hklaw.com 9/24/2025 4:30:05 PM SENT

Associated Case Party: Aetna Better Health of Texas, Inc.

Name BarNumber Email TimestampSubmitted Status
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.

Warren Huang on behalf of Warren Huang
Bar No. 796788
warren.huang@nortonrosefulbright.com
Envelope ID: 106043203
Filing Code Description: Response
Filing Description: Response
Status as of 9/24/2025 4:41 PM CST

Associated Case Party: Aetna Better Health of Texas, Inc.

Name BarNumber Email TimestampSubmitted Status

Joseph Knight 11601275 jknight@ebbklaw.com 9/24/2025 4:30:05 PM SENT

Associated Case Party: Texas Health and Human Services

Name BarNumber Email TimestampSubmitted Status

Victoria Gomez victoria.gomez@oag.texas.gov 9/24/2025 4:30:05 PM SENT

Jennifer Cook Jennifer.Cook@oag.texas.gov 9/24/2025 4:30:05 PM SENT

Associated Case Party: Texas Children's Health Plan

Name BarNumber Email TimestampSubmitted Status

Warren Huang 796788 warren.huang@nortonrosefulbright.com 9/24/2025 4:30:05 PM SENT

Paul Trahan 24003075 paul.trahan@nortonrosefulbright.com 9/24/2025 4:30:05 PM SENT

Susan Harris 6876980 susan.harris@nortonrosefulbright.com 9/24/2025 4:30:05 PM SENT

Kayla Ahmed kayla.ahmed@nortonrosefulbright.com 9/24/2025 4:30:05 PM SENT

Thomas Coulter 4885500 tom.coulter@nortonrosefulbright.com 9/24/2025 4:30:05 PM SENT

Associated Case Party: Molina Healthcare of Texas, Inc.

Name BarNumber Email TimestampSubmitted Status

Cheryl LaFond 24104015 clafond@scottdoug.com 9/24/2025 4:30:05 PM SENT

Jason R.LaFond jlafond@scottdoug.com 9/24/2025 4:30:05 PM SENT

Associated Case Party: Cecile Erwin Young, Texas Health and Human Services
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.

Warren Huang on behalf of Warren Huang
Bar No. 796788
warren.huang@nortonrosefulbright.com
Envelope ID: 106043203
Filing Code Description: Response
Filing Description: Response
Status as of 9/24/2025 4:41 PM CST

Associated Case Party: Cecile Erwin Young, Texas Health and Human Services

Name BarNumber Email TimestampSubmitted Status

Cory Scanlon 24104599 cory.scanlon@oag.texas.gov 9/24/2025 4:30:05 PM SENT

Jeffrey Stephens jeff.stephens@oag.texas.gov 9/24/2025 4:30:05 PM SENT