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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-23-00359-CV

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IN RE SILSBEE OAKS HEALTH CARE, L.L.P.

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Original Proceeding

58th District Court of Jefferson County, Texas

Trial Cause No. A-209436

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MEMORANDUM OPINION

Silsbee Oaks Health Care, L.L.P. (“Silsbee Oaks”) filed a petition 

seeking mandamus relief from an order denying its pre-trial motion to 

dismiss a medical liability claim, which was filed in the trial court by five 

individuals collectively referred to in this original proceeding as either 

the Real Parties in Interest or as the Smarts.1 In a motion for temporary 

1See Tex. R. App. P. 52. The Real Parties in Interest are: (1) Patricia 

Smart, Individually and as Representative of the Estate of Bonnie Smart, 

(2) Joe Smart, (3) Larry Dale Smart, (4) Otis Von Smart Sr., and (5) Roy 

G. Smart 
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relief, Silsbee Oaks asks that this Court stay all trial court proceedings, 

including discovery, while this original proceeding is before this Court.2

After reviewing the mandamus petition and record, we deny the 

mandamus petition and the motion for temporary relief.3

When the Smarts filed their original petition, they attached an 

expert report to their petition to comply with the requirements of the 

Texas Medical Liability Act (TMLA).4 When Silsbee Oaks answered, it 

filed a general denial and an affirmative defense, a defense that it based 

on section 74.155 of the Civil Practice and Remedies Code.5 Section 

74.155 (“Liability of Physician, Health Care Providers, and First 

Responders During Pandemic”) creates an affirmative defense from 

liability “for injury arising from care, treatment, or failure to provide care 

2See id. 52.10(a). 

3See id. 52.7(a). At the Relator’s request, we take judicial notice of 

the clerk’s record and reporter’s record filed for its attempted accelerated 

appeal from the order denying Silsbee Oaks’ motion to dismiss. See 

generally Silsbee Oaks Health Care, L.L.P. v. Smart, No. 09-23-00249-

CV, 2023 WL 6318051 (Tex. App.—Beaumont Sept. 28, 2023, no pet. h.) 

(mem. op.). 

4See Tex. Civ. Prac. & Rem. Code Ann. § 74.351. 5Id. § 74.155.
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or treatment relating to or impacted by a pandemic disease or a disaster 

declaration related to a pandemic disease.”6

Around five weeks later, in a motion to dismiss, Silsbee Oaks

argued that because it had produced evidence supporting “immunity” 

under CPRC section 74.155, it was entitled to recover attorneys’fees and 

to have the suit dismissed under CPRC section 74.351(c). According to 

the motion, the Smarts had failed to meet their burden to produce 

evidence in response to the evidence produced by Silsbee Oaks supporting 

its pandemic defense under section 74.155 to show that Bonnie Smart’s 

injuries and death were caused by Silsbee Oaks’ intentional, willful, or 

wanton misconduct.

Four months after that, Silsbee Oaks supplemented its motion, 

arguing that an affirmative defense under CPRC section 74.155 is raised 

and determined before any discovery is allowed in a case against a 

healthcare provider like Silsbee Oaks. And eight months later, Silsbee 

Oaks filed another supplemental motion in which it argued the case 

against it should be dismissed because, based on the testimony of Bonnie 

Smart’s medical providers, Bonnie was not suspected of having a COVID6See id. § 74.155 (the Pandemic Liability Statute). 
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19 infection and did not qualify for transfer to a hospital when Silsbee 

Oaks discharged Bonnie to home care. That said, Silsbee Oaks’ motion 

then states that “additional uncontroverted evidence demonstrates the 

Covid-pandemic was the producing cause of her injury-Covid-19-death 16 

days after discharge from Silsbee Oaks.”

Asserting the evidence tying Bonnie’s death to the COVID-19 

pandemic was uncontroverted, Silsbee Oaks concluded that the plaintiff’s 

claims against Silsbee Oaks were “barred under § 74.155(b) subsection 

(1) and (2).” The trial court disagreed with Silsbee Oaks and denied its 

motion to dismiss. Silsbee Oaks responded by filing an interlocutory 

accelerated appeal, and the Smarts challenged our jurisdiction to 

consider the appeal. 

In resolving the jurisdictional challenge, we concluded that CPRC 

section 74.155 operates as an affirmative defense rather than as part of 

the sufficiency criteria that applies to evaluating expert reports under 

CPRC section 74.351(b).7 Since no statute expressly authorized an appeal 

7Silsbee Oaks Health Care, L.L.P., 2023 WL 6318051, at *3.
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from the interlocutory order, in September 2023, we dismissed Silsbee 

Oaks’ accelerated appeal for lack of jurisdiction.8

Relying on its claim that section 74.155 required the plaintiff to 

produce an expert report to rebut its pandemic defense before the 

plaintiff could proceed with the suit, Silsbee Oaks argues in its petition 

thatthe legislature intended to make the process that involves screening 

lawsuits that don’t have merit against healthcare defendants—which 

requires healthcare liability plaintiffs to file expert reports and is spelled 

out in section 74.351—apply should a defendant assert a claim that the 

patient was injured or died as a result of a pandemic disease based on 

the defense the legislature created in section 74.155. According to Silsbee 

Oaks, the trial court abused its discretion in failing to reconcile sections

74.155 and 74.351 properly to require the Smarts to produce a report 

from an expert to negate Silsbee Oaks’ defense that Bonnie Smart died 

of a pandemic disease, COVID-19.9 Nonetheless, Silsbee Oaks claims 

that section 74.155 (the section creating the pandemic defense that 

applies to healthcare providers) and section 74.351 (which creates the 

8Id. at *4. 

9See Tex. Civ. Prac. & Rem. Code Ann. § 74.155(g).
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expert report requirements applicable to healthcare-liability claims) 

should be interpreted as creating an additional reporting burden on the 

plaintiff to produce a rebuttal expert report if the healthcare provider 

asserts a “pandemic defense” under section 74.155.10 Silsbee Oaks argues 

that the trial court abused its discretion when it refused to accept Silsbee 

Oaks’ novel interpretation of the healthcare liability statute. 

We may grant mandamus relief to correct a trial court’s abuse of 

discretion when an appeal provides an inadequate remedy.11 An abuse of 

discretion occurs when a trial court’s ruling is arbitrary and 

unreasonable or is made without regard for guiding legal principles or 

supporting evidence.12 We determine the adequacy of an appellate 

remedy by balancing the benefits of mandamus review against the 

detriments.13

10See id. §§ 74.155(a)(3), 74.351.

11In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 

2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 

1992) (orig. proceeding).

12In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) 

(orig. proceeding).

13In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. 

proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136.
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We have reviewed the mandamus petition, the appendix submitted 

with the petition, and the clerk’s and reporter’s records filed in the 

accelerated appeal. After reviewing the records, and after considering the 

arguments presented in the mandamus petition and the authorities cited 

in the petition, we conclude Silsbee Oaks has failed to establish that an 

abuse of discretion occurred. 

Balancing the benefits of mandamus review against the detriments 

and considering Silsbee Oaks’ argument that the trial court’s ruling 

deprives Silsbee Oaks and the healthcare providers it employs of their

rights under the TMLA, we conclude Silsbee Oaks has not established 

that it lacks an adequate remedy by appeal. We deny the petition for 

mandamus and the motion for temporary relief.

PETITION DENIED.

PER CURIAM

Submitted on December 13, 2023

Opinion Delivered December 14, 2023

Before Golemon, C.J., Horton and Johnson, JJ.