### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00203- CV

Com m uni ty Health Choice, Inc., Appellant

v. Albert Hawki ns, Com m ission er of Health and H um an Services; and The Texas Health and Human Servic es Com m ission , Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 250 TH JUDICI AL DISTRICT NO. D-1 -GN-0 7-0 0215 9, H ONO RAB LE RHO NDA HURLEY , JUDGE P RESIDING

O P I N I ON
Appellant Communi ty Hea lth Choice, I nc. (“CHC”) sued appellee s Albert Hawkins, Commi ssioner of Hea lth and Human Service s, (“the Commi ssioner”) and t h e T ex as Hea lth and
Human Service s Commi ssion (“the Commi ssion”) seeking a writ of mandamus to compel 1
the Commi ssio n er to pay CHC $249,999 pursuant to an administrative awa rd stemming from a brea ch-of -contra ct claim. The parties filed cr o s s -m otions for summ ary judgme nt. The trial court
g rante d the Commi ssioner’s motion and denied CHC’s. I n a single issue on appea l, CHC asser ts that the trial court err ed in deny ing its motion for summary judgme nt and in g ranting the Commi ssioner’s

The trial court dismiss ed CHC’s suit ag ainst the Hea lth and Human Service s Commi ssion 1 for lack of sub

j ec t -matter jurisdiction. See City of El Paso v. Heinrich , 284 S.W .3d 366, 372-73 (Tex. 2009) (“[A]s a technica l matter, the g overnme ntal entities themsel v es

— as opposed to their office rs in their officia l capa city —rema in immune from suit.”). CH C d o es n o t appea l the trial court’s dismissal of its suit aga inst the Comm ission.beca

use the Commi ssioner failed to pay a valid, non-appe alable administrative awa rd from available funds. We will reve rse the trial court’s order and rema nd the caus e t o t he district court with instructions that it render judg ment g ranting CHC’s reque sted mandamus re lief.

F ACTUAL AND P ROCEDURAL BACK GR OUND CHC contra ct ed wi th the C ommissi on to participa te i n its Medica id manag ed-c are
prog ram. The contra ct require d CHC to provide manag ed-c are service s to M ed icaid-e ligible patients, for which it rec eived pay ment from the Commi ssion in the form of a “ca pitation,” essentially a flat fee per patient akin to an insurance premium. The Commi ssion was responsible for enrolling and disenrolling members into CHC’s manag ed-c are plan based on their elig ibilit y . The underly ing dispute here conce rned the Commi ssion’s failure to timely disenroll a Medica id rec ipient from CHC’s manag ed-c are plan. CHC alleg ed that it paid for service s provided to that benef iciary in 2002, during which time the patient did not meet elig ibilit y require ments and there fore should not have be en enr olled in CHC’s plan.

CHC notified the Commi ssion that it had a claim for a brea ch of the parties’ contra ct. Pursuant to the dispute-re solution proce dure in chapte r 2260 of the g overnment code, the State Offic e of Administrative Hea ring s (“SOAH ”) conducte d a hear ing and, in May 2006, awa rded CHC $213,526.40 in damage s plus prejudg ment interest from the date of brea ch, with the total not to exceed $249,999. The prejudg ment interest exceede d $47,0 0 0 , so the total amount of CHC’s

rec overy was cappe d at $249,999. A SOAH decision in such case s is final and may not be appea led. See Act of May 31, 1999, 76th L eg ., R.S., ch. 1352, § 9, 1999 Tex. Gen. L aws 4583, 4586 (for merly Tex. Gov’t Code § 2260.104(e) ). Ac cording ly , the under ly ing SOAH decision her e is final.

2CHC attempted to collect on the awa rd, but the Commi ssioner ref used to pay . After
neg otiations failed, CHC sued in district co u rt reque sting a writ of mandamus to compel the Commi ssioner to pay the award. The parties filed cross-motions for summary judgme nt. CHC

asser ted that the plain lang uag e of g overnme nt code section 2260.105 require d the Commiss ioner
to pay the awa

rd. The Commi ssioner arg ued that the leg islature h ad not appropr iated funds as require d by subsection 2260.105(b), and there fore he was not require d to pay t h e aw ar d

. He contends that CHC must “see k permission [ fr o m the leg islature] to sue under Chapter 107 of the Civil Practice & Remedies Code.” The trial court g rante d the Commi ssioner’s motion for summary judgme nt and denied CHC’s. CHC appe als.

STANDARD OF REVIEW We revie w the district court’s g rant of summary judgme nt de novo. Valence Operating Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005). A mo v an t i s entitled to summary judgme nt if (1) there are no g enuine issues of materi al fa ct , and (2) it is entitled to judgme nt as a
matter of law. Tex. R. Civ. P. 166a(c ). Where, as here , the parties filed overla pping cross-motions for summary judgme nt, we revie w both motions and “re nder the judgme nt that the trial court should have r ender ed.” FM Props. Ope rating Co. v. Ci ty of Austin , 22 S.W .3d 868, 872 (Tex. 2000).

I n the present case , CHC’s motion for summ ary j u d gm ent reque sts the i ssuance of

a wr it of mandamus to compel the Commissioner to pay the SOAH aw ard. “ A writ of mandamus will issue to compel a public officia l to perf orm a minist eria l act. An act is minist eria l when the law clea rly spells out the duty to be perf ormed by the officia l with sufficie nt cer tainty that nothing is left
to the exercise of discretion.” Anderson v. City of Seve n Points , 806 S.W .2d 791, 793 (Tex. 1991).

3I n g ener al, a writ of mandamus will not issue if the public officia l has discretion to perf orm the act
reque sted. Id. There are , howeve r, exceptions when a public officia l commits a clea r abuse of that discretion. Id. ; see also Dyk es v. City of Houston , 406 S.W .2d 176, 183 (Tex

. 1 9 6 6 ); W omack
v. Be rry , 291 S.W .2d 677, 682 (Tex. 1956).

Our analy sis here require s us to interpre t various statutes. I n doing so, our objective is to deter

mine leg islative intent. Mid-Century Ins. Co. v. Ademaj , 243 S.W .3d 618, 62 1 (Tex

. 2007). We look to the statute’s plain meaning and construe it as a whole to g ive eff ect to ever y part,

see id. , unless such a construction would lead to absurd or nonsensical results, FKM P’shi p , Ltd.

v. Board of

Rege nts of Univ. of

Houston Sys ., 255 S.W .3d 619, 633 (Tex. 2008); see also Fitzgerald

v. Advanc ed Spine Fixation Sys., Inc. , 996 S.W .2d 864, 866 (Tex. 1999) (“[I ]t is a fair a ssumption that the L eg islature tries to say what it means, and there fore the words it chooses should be the surest
g uide to leg islative intent.”). We may consider the object of the statute, leg islative history , and the
conseque nces of a proposed construction. Tex. Gov’t Code Ann. § 311.023(1), (3), (5) (West 2005).

DISCUSSIO N
I n support of its arg ument that mandamus relief is proper here , CHC asser ts that the plain lang uag e of section 2260

. 1 0 5 of the g overnme nt code compels the Commi ssioner to pay the SOAH awa

rd in question, leaving nothing to his discretion. S ec tion 2260.105 states, in pertinent pa

rt:
(a) The unit of state g overnme nt shall pay the amount of the claim or part of the claim if:

4(1) the administrati v e law judge finds, by a prepondera nce of the evidence, that under the laws of this state the c laim or part of the claim is valid; and (2) the total amount of damag es, afte r taking into acc ount any counter claim, is less than $250,000.

. . . . (b) A unit of state gove rnment shall pay a claim under this subchapter from mone y appropriated to it for payme nt of contract claims or for payme nt of the contract that is the subject of the claim

. I f money previously appropr iated for pay ment of contra ct claims or pay

ment of the contra ct is insufficient to pay the claim, the balanc e of the claim may be paid only

from money

appropr iated by

the leg islature for

pay ment of the claim.
Tex. Gov’t Code Ann. § 2260.105 (West 2008) (e mphasis added)

.

The parties ag ree that the require ments of subsection (a) have been met, but join issue

over whether those in subsection (b) are satisfied—i.e., whether th e C o m mission has money “appr opriated to it for pay ment of contra ct claims or for pay ment of the contra ct that is the subject of the claim.” CHC arg ues that the Commi ssion had (an d cu rre ntly has) sufficie nt funds,
appropr iated and available , to pay the claim. I t notes that the Commi s s io n’s Medica id appropr iations

are not funded contra ct by contra ct. Rather, the funds are appropr iated to the Commi ssion in a lump
sum to apply to a ll Medica id contra cts. See Act of May 29, 2009, 81st L eg ., R.S., ch. 1424, art. I I , 2 0 0 9 T ex . Gen. L aws 4483, 4665-68 (g ener al appropr iations bill for 2010-2011 fiscal y ear s) (her einaf ter “2009 Senate Bill 1”). CHC contends, there fore , that any funds appro p ri at ed t o pay Medica id claims may be used to pay the awa rd in the p re s en t case , as that awa rd stems from the brea ch o f a Medica id manag ed-c are contra ct. CHC also notes that eac h of the rele vant biennial
appropr iations bills contains a provision authorizing the expenditure of curr ently appropr iated funds

5to pay Medica id claims regardless of the dat e of service and arg ues t hat t h i s p ro v i s ion authorizes

pay ment of its awar d from cur rently appropr iated funds. See id. , 2009 Tex. Gen. L aws a t 4676. The Commi ssioner arg ues that mandamus is improper here “bec ause the L eg islature did not appropr iate mo n e y in th e ma n n e r d e s c r ibed in [subs ection 2260.105(b)].” The Commi ssioner
notes that subsection 2260.105(b) mandates pay ment of a SOAH award only when the leg islature has appropriated money to pay either: (1) “contra ct claims” or (2) the s pecif ic contract t hat i s th e subject of the claim. Wit h respe ct to t h e fo rm er , the Commi ssioner asser ts that “[s] ection 2260.105(b), in other words, is conditioned on a spe cific a ppropriation for

the pay ment of cla ims, simil ar to those items f

ound in A rticle I [of the g ener al appr opriations bill] ,” mea ning, e ssentially , money appropr iated only to pay judgme nts or awa rds arising from brea ch-of -contra ct disputes. Wit h respect t o t h e latter, he arg ues that a g ener al, lump-sum leg islative appropr iation for a “cla ss” of
contra cts is too broad, and that subsec tion 2260.105(b) mandate s pay ment only in c ases wher e the leg islature has spe cifica lly ref ere nced the contra ct and f unded it individually

.
The Com m ission ’s Medicaid Appropriation s

T h e leg islature funds the Commi ssion’s Medica id coff ers via a larg e, non-spec ific
appropr iation to the Commi ssion. See 2009 Senate B ill 1, 2009 Tex . Gen. L aws at 4665-66. The

curr ent appropr iations bill awa rds the Commi ssion just under $36 billion for all of its opera tions for fiscal y ear s 2010 and 2 0 1 1

. Id

. The bill itemiz es funding by source and also assig ns various
amounts of money to cate g ories repr esenting non-binding “g oals” rela ted t o the Commi ssion’s mandate. Approxim ately $31 billion is assig ned to the v ar i o u s M ed icaid-r elated “g oals” for the

curr ent biennium. I mportant for our analy sis here , the bill also contains provisions allowing the

6appropr iations from the curr ent biennium to be used to pay cer tain Medica id expenses arising in past
y ear s and authorizing the transfe r of more funds, i f n eede d, to meet Medica id-rela ted expenses. These pr ovisions st ate:

16. Cash Basis Expend itures Authorization

. Notwithstanding any other provision of this Act, the [C ommissi on] i s authorized to expend Medica id appropr iations in a fiscal y ear without reg ard to date o f s ervice. The authorization here in is limit ed t o expenditures for claims pay ments, premiums, cost settlements and other rela ted expenses for Med i ca i d client service s.

. . . . 19. Addition al F und ing Sources, Medicaid. Notwithstandin g any other provision of this Act, if the appropr iations provided for a Medica id prog ram are not sufficie nt to provide for expenditures mandated by either state or fede ral law, afte r acc ounting fo r an y appropr iations made to the ag ency opera ting the Medica id prog ram, and availabl e for transfe r t o the M edica id prog ram, the L e g islative Budg et Boa rd and the Gover

nor may provide for and are here by authorized to direc t the transfe r of sufficie nt amounts of funds to the [Com mission] from appr opriations made e lsewher e in this Act.

Id. , 2009 Tex. Gen. L aws a t 4676.

I n her deposition, Trac y Hende rson, the Commi ssion’s Chi ef Fi n ancia l Offic er, explained that the Commi ssion’s funding for Medica id contra cts comes from gen er al, lump-sum
appropr iations. She testified t hat, whil e the appropriations bill appea rs to assig n cer

tain amounts

o f money for numerous “per formanc e targ et measure s,” “g oals,” or “strate g ies” for differ ent Medica id prog rams, those fig ures are , in fac t, mere ly targ ets and not leg islative limit ations on how

m u ch o f t h e appropr iated money the Commi ssion may spend on any one Medica id prog ram o r
contra ct. Hende rson testified:

7Q. So the funding is a, an amount of money is appropr iated to [t he Commi ssion] for, f or example, this Medicaid g oal, I ’ll call it. A. Uh-huh, y es. Q. And I cer

tainly don’t see any , any

thing broken down in here

. We’ve alre ady talked about how it’s not broken down by delivery , service delivery model. I t’s cer tainly also not broken down by individual contrac ts. A. Correc t. Q. And the State, [t he Commi ssion] will enter into contra cts, for example, with manag ed car e org anizations who participa te in Medica id managed ca re . Correc t? A. Yes. Q. And there ’s nothing in the Appropria tions Bill that separ ates out what money is set aside to pay

for a particula r contra ct, is there? A. No. Q. So the authority that [t he Commi ssion] would have t o m ake any pay ments that may be required under any particula r co n t ra ct are all part of this larg er appropr iations. A. Yes.

. . . . Q. But if the State is pay ing premiums under a contra ct with an MCO, manag ed car e org anization, who participa tes in Medica id manag ed car e, those premium dollars are , at least for Star, [t he re l ev an t prog ram here ] are subsumed somewher e in one of these fir st four [appropriation] strateg ies? A. Yes. Q. The money

appropr iated for

these diff

ere nt strateg ies. A. (The w itness moved her he ad up and dow n.)

8Hende rson also testified that, althoug h the appropr iations bill budg ets cer tain funds to be spent during a specific y ear , the entire sum is available , if neede d, at any time during the two-y ear period.
Chapt er 2260
To g ive context to the parties’ arg uments, we will briefly outline the administrative dispute-re solution proce dures in chapte r 2260 of the g overnme nt code

. Enac ted in 1999, chapte r 2 2 6 0 wa s “[ i ]nt ended to promote mediation and settlement” betwee n the State and its
contra ctors and se rves a s a prerequisite to seeking permission from the legislature to sue the State for breac h o f contra ct. Gene ral Servs. Comm’n v. L ittle-Tex Insulat ion Co., Inc. , 39 S.W .3d 591, 595, 597 (Tex. 2001); see also Tex. Gov’t Code Ann. § 2260.005 (W est 2008). Chapter 2260 applies to “wr itten contra ct[s] between a unit of state g overnme nt and a contra ctor for g oods or service s, or for a [construction] projec t as define d by Section 2166.001.” Tex

. Go v ’t Code Ann. § 2260.001(1) ( West 2008).

After a contra ctor bring s a claim ag ainst a unit of state g overnme nt, the contr a ctor and the g overnme ntal unit must neg otiate. Id. § 2260.052 (West 2008). I f n ego t i at i o ns fail, the
contra ctor may ref

er the matter to a SOAH administrative law judge (“A L J ”). Id. § 2260.102(c) (West 2008); see also Hawkins v. Community Health Choice, I nc. , 127 S.W .3d 322, 326-27 (Te x . App.—Austin 2004, no pet.) (upon rec eipt of hear ing reque st, ag ency must ref er matter to SOAH).
At the time rele vant to this appea l, a SOAH decision was not appea lable. See Act of May 31, 1999,

976th L eg ., R.S., ch. 1352, § 9, 1999 T ex . Ge n . L aw s 4583, 4586 (for merly Tex. Gov’t Code § 2260.104(e) ). 2

I f the administrative law judge finds in f avor of the contra ctor and awa rds less than $250,000, the g overnme ntal unit must pay the claim. Id. § 2260.105(a)

. I f, howeve r, the awa rd is
g rea ter than $250,000, then the g overnme ntal unit must pay only the part of the claim that is under $250,000. Id. § 2260.105(a- 1). Any pay ment must be from “money appropr iat ed t o [t he
g overnme ntal unit] for pay ment of contra ct claims or for pay ment of the contra ct that is the subject of the claim.” Id. § 2260.105(b). I f there are no such appropr iated funds ava ilable, then the c laim
may be paid only from “money appropr iated”—pr esumably at some later date—“ by the leg islature for pay ment of the claim.” Id. Re co v er y o f m o re than $250,000, howeve r, require s a specific leg is l at i v e appropr iation. Id. I f the SOAH judge “dete rmines that a claim involves damag es of $250,000 or more,” then the judge mus t issue a written repor t with appropr iate finding s and

rec ommendations to the leg islature. Id. § 2260.1055 (West 2008). The judge may rec ommend that the leg islature (1) appropr iate money to pay the claim or (2) not appropr iate money to pay the claim and deny consent t o s u e. Id

. The leg islature, of course , may acc ept or reje ct the judge ’s

rec ommendations.

Section 2260.003 limit s the awa rd of dama g es to (1) the balanc e due a nd owing on the contra ct, (2) the fair marke t value of chang e order s to the extent that work was actua lly done, and (3) any delay or labor-r elated expense as a result of the State’s failure to timely pay on the contra ct.

An AL J ’s decision may now be appea led for abuse of discretion. Te x . Gov’t Code Ann. 2 § 2260.104(e) (1) ( West 2008) (applica ble to claims made a fter Septe mber 1, 2005). 10Id. § 2260.003(a) (West 2008). Under no circ umstances may a contra ctor be awa rded damag es for (1) conseque ntial damag es ex cept for delay or labor-r elated expenses, (2) exemplary damag es, (3) any damag es based on unjust enrich m en t , (4 ) at torney ’s fee s, or (5) home office overhe ad. Id. § 2260.003(c)

.

We draw sever al conc lusions from our revie w of c hapter 2260. First, it provides a
compre hensive administrative scheme that attempts to settle or adjudicate brea ch-of -contra ct claims outside the courts. See Litt le-Tex Insulation , 3 9 S

. W

. 3 d at 597. Second, the chapte r provides a forum for administrative dispute resolution and a proce dure wher eby a claimant who is owed money by the State can, in cer

tain case s, rec over without the inconvenienc e and delay of seeking leg islative permission to sue and, for cer tain rela tively low-dollar claims, without having to reque st the money from the leg islature direc tly

. Third, the mandatory pay ment lang uag e of section 2260.105 indicates that the leg islature struck a balanc e betwee n eff iciency and control—allowing direc t dispositi on of rela tively low-dollar, adjudicate d claims for which money was alre ady appropr iated, y et keeping a tight re in on the purse string s when g rea ter sums wer e at stake

. See id. § 2260.105.

Section 2260.105 Man dates Payment H ere We mu st construe the plain lang uag e of subsection 2260.10 5 ( b ) in th e b r o a d e r c o n te xt of chapte r 22 60 and in conce rt with the leg islative appropr iations rele vant here

. Doing so, we conclude that here there is “money appropr iated for the pay ment of contra ct claims.” I n the prese nt

case , the leg islatur e h as cu rrently appropr iated money to the Commi ssion to pay a varie ty of Medica id-rela ted contra cts. I t also made the curr ent biennium’s funding available to pay M ed i ca id claims, premiums, cost settlements, and other rela ted expenses for client services

11reg ardle ss of trea tment date. This ty pe of appropr iation is sufficie nt to fall within section 2260.105’s
pay ment mandate. 3

The Commi ssioner arg ues that the leg islature did not appropr iate money for pay ment of cha pter 2260 “ contra ct claims” dur ing the rele vant time periods. He arg ues that

Had the L eg islature intended to fund pay ment of Chapter 2260 “contr act claims,” it surely knew how to e x press that intent. The [2007 g ener al appr opriations bill] , for example, contains specific appropr iation authority for the Comptroller to pay miscellaneou s claims under section 403.074 of the Gover nment Code. I t also contains specific authority to pay claims arising under the Texas Tort Claims Act

. . . as well as fede ral court claims. The L eg islature did not include simil ar lang uag e for the pay ment of contra ct claims under Chapter 2260.

The Commi ssioner’s arg ument assumes that the phrase “money ap p ro p ri ated for the pay ment of
contra ct claims” in subsection 2260.105(b) ref ers only to fund s s p ecif

ically appropr iated to pay judgme nts or, as in this case , SOAH awa rds from the administrative resolution of brea ch-of -contra ct disputes. We are not pe rsuade d, howeve r, that the leg islature intended suc h a nar row mea ning. Our interpre tation is consistent with the plain meaning of the statutory lang uag e. A “cla im” means an “asse rtion of an exis ting rig ht” or, when u sed as a verb, “to demand money , proper ty , or a leg al reme dy to which one asser ts a rig ht.” Bla ck’s L aw Dictionary 281-82

Be cause the curr ent appropr iations bill authorizes the p ay ment of Medica id claims 3 reg ardle s s o f t h e d ate of service , we need not addre ss whether the Texas Constit ution’s two-y ear limit on appropr iations bills would prohibit pa y ment of older claims under a statutory scheme that lacke d such a provision. S ee Tex. Const. art. VI I I , § 6 (“nor shall any appropr iation of money be made for a longe r term than two y ear s”). Also, beca use we hold that there is “money appropr iated for the pay

ment of contra ct claims,” we need not addre ss whether there is “money appropr iated

. . . for pa y ment of the c ontrac t that is the subject of the c laim.” 12(9th ed. 2009). Thus, a “contr act claim” is simply an asser tion of an exis ting rig ht to pay ment under
a contr act. There is no substantive differ ence betwee n an undisputed (and subsequently pai d) “contr act claim” and one that has been reduc ed to an administrative awa rd, nor can we discern from chapte r 2260 that the leg islature intended to make such a distinction. Both “claims” a re r eally the

same thing: asser

tions of an exis ting rig ht to pay ment under a contra ct. We see no rea son to impose

an artificia l distinction mere ly beca use a contra ct claim has been adjudicate d. We assume that in the
vast majority of instances wh en a contra ctor asser ts a rig ht to pay

ment under a contra ct—such as when it sends the ag ency a bill for service s rende red—the ag ency pay s it. Money to pay that claim

comes from funds appropr iated by the leg islature to the ag ency to pay contra ctors for the g oods and service s they provided to that ag ency —i.e., money appropr iated to it to pay contra ct claims. I n a few instances, howeve r, disputes arise. I n those case s, the disputes may be adjudicate d in the contra ctor’s favor , producing an administrative a war d that resulted from the contra ctor’s claim. I n either c ase, it is rea sonable to assume that the leg islature intended for the pay ment demands to be paid out of funds pre viously

appropr iated to pay

those claims. Our interpre tation is als o co n s i s tent with the balanc e that chapte r 2260 strikes betwee n eff

iciency and leg islative fi s ca l control. I nterpre ting subsection 2260.105(b) to allow

rec overy here maintains that balanc e by allowing contra ctors with meritorious claims to be paid with littl e or no eff

ect o n t h e S t at e’s budg et. As noted above, section 2260.003 caps the maxi mum damag e awa

rd at the contra ct price plus work actua lly done by the contra ctor on authorized chang e order s and, in some instance s, delay -re lated conse quential damag es. With such a cap on da mag es

13in place , the amount of any awa rd would be very close to the previously budg eted and appropr iated

am o u n t o f that contra ct. I t makes sense, then, that with the State’s exposure thus limit ed and t h e budg eting and appr opriating alre ady done, the leg islature would be c omfortable or dering pay ment direc tly by the af fec ted ag ency

from those budg eted a

nd appropr iated funds.
Moreove r, interpre ting the statutory langu age at issue here to require a separ ate leg islative appropr iation to pay only for disputed “bre ach- of-c ontrac t” claims would, in eff ect, allow
ag encie s to “opt out” of section 2260.105’s mandatory pay ment provision s by mere ly failing to
reque st such funding from the leg islature. Be cause section 2260.105 cre ates a mandatory pay ment obliga tion, we do not believe the leg islature intended to cre ate such a loophole, one that would potentially

undermine the entire statutory scheme

. Finally , the Commi ssioner a r g u e s th a t M u tc h le r v
. Te

x a s D e p a r tm e n t o

f Public Safety , 681 S.W .2d 282 (Tex. App.—Austin 1984, no writ) is d i s p o s i t i v e here

. I n that case , leg islation purported to awa

rd supplemental pay to cer tain DPS office rs, but the leg islature failed to appropr iate
money to fund the supplements. Id. at 284. We held that surplus money could not be diverted from elsewhe re to fund the supplements. Id. Our holding in Mutchler does not s u p p o rt the Commi ssioner’s position. I n Mutchler , the leg islature h ad not appropr iated money to fund the supplemental pay , wher eas here an appropr iation for the pay ment of contra ct claims has been made and the nece ssary funding is available

. Fur thermore , supplemental employ ee pay require s specific , line-item funding

. The same is not true here

. I n Mutchler , we noted that “[t] he Coordinator of the
L eg islative Budg et Boa

rd testified at trial that any pay ments for supplemental or overtime pay must

co m e from a specific ‘line item’ appropr iation.” Id. at 285. Her e, the opposite is t ru e. T h e

14approp ri ati ons bill itself and testi mony from the Commi ssion’s Chief Financial Officer show that

money to pay Medica id contrac ts comes from a lump-sum appropriation to the Commissi on. We conclude that money has been appropr iated an d i s currently available to the Commi ssion to pay CHC’s claim. Fur ther, we hold that section 2 2 6 0

. 1 0 5 ’s mandatory lang uag e require s pay

ment of CHC’s claim and leave s nothing to the Commi ssioner’s discretion; acc ording ly , mandamus is proper here

. See Anderson , 806 S.W .2 d at 7 9 3

. W e there fore sustain CHC’s issue
on appea l.

CONCLUSION

Having conclude d that mandamus is proper here , we hold that the trial court err ed in
g ranting summary judgme nt for the Commi ssioner and in deny ing CHC’s motion fo r s ummary jud gm en t

. We there fore reve rse the trial court’s judgment and rema nd the cause t o the t rial court with instructions to rende r judgme nt g ranting CHC’s reque sted mandamus reli ef. The trial court should allow t he C ommissi oner a rea sonable ti me t o voluntarily comply with its j udg ment. I f t he Commi ssioner fails to comply , the trial court shall order the district cl erk to issue a writ of mandamus and ma

y conduct e nforc ement proc eeding s as nec essar y .

__________________________________________ J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Waldrop and He nson Reverse d and Remande d Filed: June 17, 2010

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