NO. 01-13-01034-CV

IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT 

OF TEXAS AT HOUSTON 

SHIRLEY LENOIR, INDIVIDUALLY AND AS PERSONAL 

REPRESENTATIVE OF THE ESTATE OF SHANA LENOIR, ET AL., 

Appellants, 

V.

LEAH ANNE GONSKI, M.D. AND JAOU-CHEN HUANG, M.D., 

Appellees.

On Appeal from the 164

th Judicial District Court of Harris County, Texas 

Trial Court Cause No. 2012-35806A

JAOU-CHEN HUANG, M.D.’S RESPONSE IN OPPOSITION 

TO APPELLANTS’ MOTION FOR REHEARING

Charles B. Holm 

State Bar No. 09900300 

cholm@holmbambace.com

Kyle M. Smith 

State Bar No. 24054226 

ksmith@holmbambace.com

Holm Bambace LLP 

1010 Lamar, Suite 1100 

Houston, Texas 77002 

(713) 652-9700 – Telephone 

(713) 652-9702 – Facsimile 

ATTORNEYS FOR APPELLEE, 

JAOU-CHEN HUANG, M.D. 

ACCEPTED

01-13-01034-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

2/10/2015 4:08:53 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 2/10/2015 4:08:53 PM CHRISTOPHER A. PRINE Clerk
2

TO THE HONORABLE FIRST COURT OF APPEALS:

Comes now, Appellee, JAOU-CHEN HUANG, M.D. (“Dr. Huang”), 

and files this Response in Opposition to Appellants, SHIRLEY LENOIR, 

Individually and as Personal Representative of the ESTATE OF SHANA 

LENOIR and CHRISTOPHER MCKNIGHT, Individually and as Next Friend 

of NAYLA MCKNIGHT’s (“Appellants”) Motion for Rehearing regarding the 

portion of this Court’s Opinion, issued on November 25, 2014, affirming the 

trial court’s dismissal of Dr. Huang pursuant to Texas Civil Practice & 

Remedies Code § 101.106(f). For the reasons set forth below, Appellants’ 

Motion should be denied.

I.

DR. HUANG SUBMITTED COMPETENT EVIDENCE

In their Motion, Appellants argue that certain evidence Dr. Huang

submitted with his Brief1, as well as in support of his underlying Motion to 

Dismiss Pursuant to Texas Civil Practice & Remedies Code § 101.106(f)

that was filed in the trial court, was allegedly based on allegedly 

incompetent legal conclusions and was also allegedly contradicted by other 

evidence. Specifically, Appellants contend that Dr. Huang’s participation 

 

1 See Tab A (C.R. 333-335) and Tab C (C.R. 803-808) to Dr. Huang’s Brief.
3

agreement2 with U.T. Physicians (hereinafter “UTP”) (formerly known as 

University Care Plus (hereinafter “UCP”)) contradicted the two sworn 

affidavits submitted by Dr. Huang with his Brief, and therefore rendered 

said evidence incompetent to support his Motion to Dismiss Pursuant to 

Texas Civil Practice & Remedies Code § 101.106(f). Dr. Huang has 

shown, and this Court accepted, that these two sworn affidavits, along with 

Dr. Huang’s other additional evidence, detailed below, incontrovertibly 

established that he was in the paid service of the University of Texas 

Health Science Center at Houston (“UTHSCH”), a governmental unit, and 

that Dr. Huang was acting in the general scope of his employment with 

UTHSCH when he was providing medical services at the UTP Clinic on 

April 8, 2010.

Appellants further argue in their Motion that Dr. Huang’s sworn 

affidavits were allegedly disputed or insufficient because: (1) they did not 

reference any evidence or have any evidence attached to them,

(2) because the sworn affidavits were allegedly conclusory, and 

(3) because the sworn affidavits were allegedly contradicted by other 

evidence – Dr. Huang’s participation agreement with UTP (formerly known 

 

2 See C.R. 1046-1062 (“Acknowledgement of Physician Participation in University Care 

Plus”).
4

as UCP). Appellants’ assertions are untenable, as the evidence in the 

record clearly demonstrated otherwise.

Appellants incorrectly asserted in their Motion that Dr. Huang only 

offered the two aforementioned sworn affidavits – the original Affidavit of 

Dr. Huang3and the Supplemental Affidavit of Dr. Huang4– in support of his 

argument that he was solely in the paid service of UTHSCH, a 

governmental unit, and that he was acting in the general scope of his 

employment with UTHSCH when he was providing medical services at the 

UTP Clinic on April 8, 2010. To the contrary, Dr. Huang also offered 

additional evidence in his Brief that Appellants failed to mention in their 

Motion: the Affidavit of T. Kevin Dillon5, Dr. Huang’s Memorandum of 

Appointment with UTHSCH6, the Affidavit of Brent King, M.D.7, the Affidavit 

of Andrew Casas8, and the Affidavit of Pamela Promecene, M.D.

9

Mr. Dillon is the Senior Executive Vice President, Chief Operating & 

Financial Officer for UTHSCH, and in that capacity, he supervised the 

Department of Human Resources and had access to UTHSCH’s personnel 

 

3 See Tab A (C.R. 333-335) to Dr. Huang’s Brief.

4 See Tab C (C.R. 803-808) to Dr. Huang’s Brief.

5 See Tab B (C.R. 336-338) to Dr. Huang’s Brief.

6 See Tab E (C.R. 813-814) to Dr. Huang’s Brief.

7 See Tab D (C.R. 809-812) to Dr. Huang’s Brief.

8 See Tab F (C.R. 815-818) to Dr. Huang’s Brief.

9 See Tab G (C.R. 740-744) to Dr. Huang’s Brief.
5

databases.10 Because of his position and access, it was within Mr. Dillon’s 

personal knowledge whether someone was in the paid service of UTHSCH 

at any given time.11 Mr. Dillon’s Affidavit established that Dr. Huang was in 

the paid service of UTHSCH, as a full-time physician and Assistant 

Professor in the Department of Obstetrics, Gynecology, and Reproductive 

Sciences, on April 8, 2010, the date Shana Lenoir (the “Decedent”)

received medical care at the UTP Clinic at issue.12

Dr. King was formerly the Executive Vice Dean for Clinical Affairs at 

UTHSCH, a position he held at the time of the preparation of his Affidavit, 

and due to his position and tenure at that time, Dr. King had personal 

knowledge regarding the creation, implementation, and function of the 

Medical Service Research and Development Plan (“MSRDP”) trust fund 

account utilized by UTHSCH.

13

 Dr. King’s Affidavit established, among 

other things, that the MSRDP trust fund account did not have any 

employees, and more specifically, it did not employ, and has never 

employed, Dr. Huang.14

 

10 See Tab B (C.R. 336-338) to Dr. Huang’s Brief.

11 Id.

12 Id.

13 See Tab D (C.R. 809-812) to Dr. Huang’s Brief.

14 Id.
6

Mr. Casas is a Vice President for UTHSCH, and is responsible for the 

administrative and business operations of the practice plan for UTHSCH.15 

In this administrative capacity for UTHSCH, Mr. Casas also served as the 

Chief Operating Officer for UTP, and in his administrative capacity for 

UTHSCH, as well as in his role as Chief Operating Officer for UTP, 

Mr. Casas had access to UTP’s personnel databases.

16

 Because of his 

position and access with UTP, it was within Mr. Casas’ personal knowledge 

whether someone was in the paid service of UTP at any given time.17 In 

that regard, Mr. Casas’ Affidavit established that Dr. Huang was not an 

employee or independent contractor of UTP on April 8, 2010, or at any 

other time.18

Dr. Promecene is the Program Director of the Obstetrics and 

Gynecology Residency Program sponsored by UTHSCH, a position she 

has held since 2006, and due to her position and tenure, Dr. Promecene 

had personal knowledge regarding the role UTHSCH faculty physicians 

played in the UTHSCH Obstetrics and Gynecology Residency Program.19 

In that regard, Dr. Promecene’s Affidavit established that one of the main 

 

15 See Tab F (C.R. 815-818) to Dr. Huang’s Brief.

16 Id.

17 Id.

18 Id.

19 See Tab G (C.R. 740-744) to Dr. Huang’s Brief.
7

reasons why Dr. Huang was at the UTP Clinic at issue on April 8, 2010 was 

to supervise residents participating in the UTHSCH Obstetrics and 

Gynecology Residency Program.20

The aforementioned evidence conclusively established that 

Dr. Huang was in the paid service of UTHSCH, and that he was acting in 

the general scope of his employment with UTHSCH, at all times in 

question.

Turning to Appellants’ argument concerning Dr. Huang’s agreement 

with UTP (formerly UCP), Dr. Huang agrees he entered into a participation 

agreement with UTP (under its former UCP name); however, this document 

did not change or alter his status as a UTHSCH faculty physician at the 

times he provided medical services at any UTP clinic, including on 

April 8, 2010. Appellants have focused on the following language from the 

agreement at issue, “Participation in University Care Plus (now U.T 

Physicians) has no effect on or relationship to faculty status at UT-H 

or medical staff privileges at any hospital ...”. Interestingly; however, 

Appellants omit the remaining portion of this provision from the participation 

agreement at issue:

 

20 Id.
8

1. Participation in University Care Plus has no effect on or 

relationship to faculty status or medical staff privileges at 

any hospital, except that loss of faculty status at UT-H 

or medical staff privileges results in termination of 

University Care Plus participation in accordance with 

Section E of this Agreement; ...21

It is obvious after a reading of the entire provision at issue that Appellants 

have completely misinterpreted the meaning of this provision. This 

provision did not make Dr. Huang an employee of UTP, when he was 

providing medical services its clinics, nor did it give UTP the legal right to 

control the details of Dr. Huang’s work at the UTP Clinic at issue.

22 Rather, 

this provision expressly stated that even though Dr. Huang entered into this 

agreement with UTP to participate in the provision of medical services at 

UTP’s clinics; such participation could not affect or alter his faculty status at 

UTHSCH. Essentially, this provision stated that if Dr. Huang was a 

UTHSCH faculty physician before he entered into the agreement, he 

remained a UTHSCH faculty physician after he entered into the agreement. 

In fact, this agreement expressly stated that should Dr. Huang lose his 

UTHSCH faculty status, he would also lose his ability to participate in this 

 

21 See C.R. 1049 at D.1. (“Effect of Participation in University Care Plus.”) (Emphasis 

added).

22 “Employee” means a person, including an officer or agent, who is in the paid service 

of a governmental unit by competent authority, but does not include an independent 

contractor, an agent or employee of an independent contractor, or a person who 

performs tasks the details of which the governmental unit does not have the legal right 

to control. See TEX. CIV. PRAC. & REM. CODE § 101.001(2).
9

medical services program with, or provide medical services at, UTP’s 

clinics:

1. Upon Physician’s departure or resignation from the faculty 

of UT-H or retirement from the active practice of 

medicine, UT-H shall so notify University Care Plus, and 

Physician’s participation in University Care Plus shall be 

automatically terminated upon the date specified by 

University Care Plus’ Board or its designee.23

Despite Appellants’ assertion that Dr. Huang’s participation 

agreement with UTP contradicted the testimony contained in his sworn 

affidavits; a simple reading of this document’s plain language shows that 

this assertion is untenable. Additionally, nowhere in the participation 

agreement does Dr. Huang ever relinquish his faculty status with UTHSCH, 

nor does he give UTP the legal right to control the details of his work.24 By 

entering into this participation agreement, Dr. Huang simply agreed to 

abide by the bylaws of UTP, when he was providing medical services at 

UTP’s clinics, as a UTHSCH faculty physician. Moreover, nowhere in this 

document did UTHSCH relinquish its control over the details of Dr. Huang’s

work, nor did UTP assume control over the same.25 Furthermore, although 

Dr. Huang’s participation agreement with UTP may be silent as to his 

 

23 See C.R. 1049 at E.1. (“Termination of Participation.”).

24 See Footnote 22, above; see also TEX. CIV. PRAC. & REM. CODE § 101.001(2).

25 Id.
10

supervision of residents at UTP’s clinics, as a part of the UTHSCH 

residency program, the Affidavit of Dr. Promecene26 firmly established that 

one of the main reasons why Dr. Huang was at the UTP Clinic at issue on 

April 8, 2010 was to supervise residents participating in the UTHSCH 

Obstetrics and Gynecology Residency Program.27

For the reasons set forth above, this Court’s finding that Dr. Huang 

was in the paid service of UTHSCH, and that he was acting in the general 

scope of his employment with UTHSCH, when medical care was being 

provided to the Decedent at the UTP Clinic, at all times in question, was the 

correct ruling. It is abundantly clear that the competent and uncontroverted 

evidence submitted by Dr. Huang supported this Court’s ruling.

II.

ULTRA VIRES ISSUES

Although they argue otherwise, Appellants’ allegations of ultra vires

conduct do not save their claims for monetary relief against Dr. Huang. 

Appellants’ ultra vires allegations are blocked by statutory immunity and 

there is no exception.

 

26 See Tab G (C.R. 740-744) to Dr. Huang’s Brief.

27 Id.
11

Ultra vires claims may be asserted against governmental employees: 

(1) in their official capacity only, (2) must be based on allegations that the 

governmental employee acted without legal authority or failed to perform a 

purely ministerial act, and (3) may seek only prospective, injunctive relief.28 

Because Appellants filed their medical negligence lawsuit against 

Dr. Huang: (1) allegedly in his individual capacity, (2) based on conduct 

that is inherently discretionary in nature, and (3) that seeks only monetary 

damages for past conduct, Appellants’ allegations failed to state a valid 

ultra vires claim and also failed to create any legal “exception” to immunity. 

For these reasons, Appellants’ allegations of ultra vires conduct were 

nothing more than an improper effort to recast tort claims in an attempt to 

avoid applicable immunity statutes.

A governmental employee who is sued for allegedly ultra vires acts

can only be sued in his official capacity.29 Appellants allegedly sued 

Dr. Huang in his individual capacity only.30 Because Appellants allegedly 

sued Dr. Huang in his individual capacity only, they cannot state a legally 

valid ultra vires claim or exception to immunity. Notably, not only are 

 

28 City of El Paso v. Heinrich, 284 S.W.3d 366, 372-74 (Tex. 2009).

29 Texas Department of Insurance v. Reconveyance Services, Inc., 306 S.W.3d 256, 

258 (Tex. 2010) (emphasis added).

30 See Plaintiffs’ First Amended Original Petition at ¶ 62; C.R. 954.
12

Appellants’ allegations of ultra vires conduct against Dr. Huang untenable, 

they attempt to have it both ways – Appellants contend that Dr. Huang was 

not a governmental employee at the time of the allegedly negligent medical 

care; however, they also contend that the ultra vires exception saves their 

individual claims against Dr. Huang. This cannot be, as explained above, 

the ultra vires exception is only available if Dr. Huang was a governmental 

employee, acting in his official capacity only. Appellants have to make a 

decision, was Dr. Huang a governmental employee or not? As explained 

above, Dr. Huang’s evidence clearly established that he was. They cannot 

have it both ways.

In fact, the Texas Supreme Court’s Franka opinion expressly stated

that its construction of Section 101.106(f) forecloses suit against a 

government official in their individual capacity, so long as the government 

official was acting within the scope of their employment.31 Although 

 

31 Franka v. Velasquez, 332 S.W.3d 367, 381 (Tex. 2011) (“This construction of 

§101.106 does, however, foreclose suit against a government employee in his individual 

capacity if he was acting within the scope of his employment. This changes, among 

other things, the rule in Kassen v. Hatley which has allowed malpractice suits against 

physicians employed by the government [in their individual capacities] even though 

acting within the scope of employment.”).

Although Franka acknowledges that a suit alleging ultra vires conduct against an 

employee in his official capacity is an exception to the general rule that a suit against an 

employee in his official capacity is a suit against his government employer, it provides 

no authority for the notion that a governmental employee may be sued in their individual 

capacity for an ultra vires act, nor have Appellants cited any other authority to support
13

Heinrich notes that state officials may be sued in both their official and 

individual capacities32, nothing in Heinrich supports the notion that an ultra 

vires lawsuit may lie against a governmental employee in their individual 

capacity, or created any exception to immunity from which a governmental 

employee sued in their individual capacity would otherwise benefit.

Appellants’ ultra vires allegations also fail because they are based on 

alleged acts or omissions that are purely discretionary in nature. To come 

within an ultra vires exception to an immunity statute, “a suit must not 

complain of a government officer’s exercise of discretion, but rather must 

allege, and ultimately prove, that the officer acted without legal authority or 

failed to perform a purely ministerial act.33 Appellants’ ultra vires claim

against Dr. Huang alleges that he should have been physically present 

when Co-Appellee, LEAH ANNE GONSKI, M.D. (“Dr. Gonski”), provided 

medical treatment to the Decedent, and therefore he allegedly failed to 

 

this notion. Id. at 832-83.

32 Heinrich, 284 S.W.3d at 373 n. 7.

33 Id. at 372; see also Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 

110-11 (1984) (the provision of health services necessarily requires the exercise of 

“broad discretion”); see also McLane Co., Inc. v. Strayhorn, 148 S.W.3d 644, 649 

(Tex. App. – Austin 2004, pet. denied) (citing City of Lancaster v. Chambers, 

883 S.W.2d 650, 654 (Tex. 1994) (holding “[a] discretionary act is one that requires the 

exercise of ‘personal deliberation, decision and judgment.’”)); see also Layton v. City of 

Fort Worth, Cause No. 02-14-00084-CV, 2014 WL 6997350, at *6 (Tex. App. – Fort 

Worth 2014, no pet. h.).
14

follow federal and state Medicaid regulations.

34

 Dr. Huang’s decision 

whether to be physically present, as the attending physician, when 

Dr. Gonski provided medical care to the Decedent, on April 8, 2010, is an 

activity that is inherently discretionary in nature, and was conducted within 

the general scope of his employment with UTHSCH as an attending 

physician.35

Additionally, Appellants have misinterpreted what Medicaid requires, 

and they fail to recognize that there is no federal or state Medicaid practice 

regulation or guideline requiring Dr. Huang to be physically present when 

Dr. Gonski provided medical care to the Decedent on April 8, 2010. 

Rather, the Medicaid guideline that Appellants referenced, which is solely a 

billing guideline, is that in order for Medicaid to pay for the medical care 

provided by a resident physician, an attending physician must be physically 

present at the time the medical care is provided.36 Simply put, there is not 

a Medicaid practice regulation or guideline that required an attending 

physician to be physically present in order for a resident physician to 

provide medical care to a patient; rather, the regulation/guideline is that 

Medicaid will only pay for those medical services if an attending physician 

 

34 See Plaintiffs’ First Amended Original Petition at ¶¶ 65-67; C.R. 954-955.

35 See Tab G at ¶ 8 (C.R. 742) of Dr. Huang’s Brief; see also Footnote 33, above.

36 See R.R. 63.
15

was physically present at the time the medical services were rendered.37 

As fully explained in his Brief, Dr. Huang did not even violate the

aforementioned Medicaid billing guideline, because he did not submit the

bill at issue to Medicaid; rather, that was done by UTP.38 As a result, 

Appellants fail to meet the second prong of the ultra vires claim elements 

as well.

Lastly, Appellants are seeking only monetary damages for past 

events as a remedy for allegedly ultra vires activity. A suit brought under 

the ultra vires waiver of governmental immunity cannot be used to obtain 

monetary relief for past damages from alleged ultra vires acts.39 As 

Appellants’ First Amended Original Petition seeks only money damages 

based on past events, they have not stated valid ultra vires claims against 

Dr. Huang for which relief can be granted.

In summation, Appellants’ ultra vires allegations represent an 

improper effort to “recast” their medical negligence or health care liability 

claims as ultra vires claims to avoid the immunity provisions set forth in 

Chapter 101 of the Texas Civil Practice & Remedy Code. Appellants’ only 

liability theory is medical negligence. A party may not circumvent 

 

37 Id.; see also Tab G at ¶ 8 (C.R. 742) of Dr. Huang’s Brief.

38 See Tab C (C.R. 803-808) and Tab F (C.R. 815-818) of Dr. Huang’s Brief.

39 Heinrich, 284 S.W.3d at 374-76.
16

governmental immunity statutes by characterizing its claims in a manner 

designed to avoid the requirement of legislative consent to suit.40

III.

CONCLUSION AND PRAYER

For the reasons set forth above, Dr. Huang respectfully requests that 

this Court deny Appellants’ Motion for Rehearing. Dr. Huang further 

respectfully requests that this Court grant him all other and further relief 

that he may be justly entitled.

Respectfully submitted,

HOLM BAMBACE LLP

By: /s/ Charles B. Holm

Charles B. Holm

State Bar No. 09900300

cholm@holmbambace.com

Kyle M. Smith

State Bar No. 24054226

ksmith@holmbambace.com

1010 Lamar, Suite 1100

Houston, Texas 77002

(713) 652-9700 – Telephone

(713) 652-9702 – Facsimile

ATTORNEYS FOR APPELLEE,

JAOU-CHEN HUANG, M.D.

 

40 Texas Natural Resource Conservation Commission v. IT-Davy, 74 S.W.3d 849, 855 

(Tex. 2002); Freedman v. The University of Houston, 110 S.W.3d 504, 508 (Tex. App. –

Houston [1st Dist.] 2003, no pet.).
17

CERTIFICATE OF SERVICE

This will certify that pursuant to Texas Rule of Appellate Procedure 

9.5, a true and correct copy of the above and foregoing Jaou-Chen 

Huang, M.D.’s Response in Opposition to Appellants’ Motion for Rehearing 

was forwarded to the following counsel of record via e-file, e-mail, U.S. First 

Class Mail, certified mail, return receipt requested, facsimile, or hand

delivery on Tuesday, February 10, 2015:

Joseph M. Gourrier

The Gourrier Law Firm, PLLC

530 Lovett Boulevard, Suite B

Houston, Texas 77006

Via e-File

Via e-Mail: joseph@gourrierlaw.com

John R. Strawn, Jr.

Victoria P. Skinner

Strawn Pickens LLP

Pennzoil Place, South Tower

711 Louisiana Street, Suite 1850

Houston, Texas 77002

Via e-File

Via e-Mail: jstrawn@strawnpickens.com

vskinner@strawnpickens.com

/s/ Charles B. Holm

Charles B. Holm
18

CERTIFICATE OF COMPLIANCE

This will certify that pursuant to Texas Rule of Appellate Procedure 

9.4(i)(3), the foregoing Jaou-Chen Huang, M.D.’s Response in Opposition 

to Appellants’ Motion for Rehearing, as well as his previously filed Brief, 

comply with Texas Rule of Appellate Procedure 9.4(i)(2)(B)’s word-count 

limitation for computer-generated documents. Specifically, the undersigned 

certifies that Jaou-Chen Huang, M.D.’s Response in Opposition to 

Appellants’ Motion for Rehearing contains 3,825 words, and his previously 

filed Brief contained 9,727 words, which is within the 27,000 word 

aggregate limit for all briefs filed by a party with the court of appeals in a 

civil case.

/s/ Charles B. Holm

Charles B. Holm