### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00136
- CV

Texas Health and Human Services Commission ; and Cecile Erwin Young, Executive Commissioner of the Texas Health and Human Services Commission , Appellant s

v. Sacred Oak Medical Cente r LLC , Appellee

FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 21
- 000074 , THE HONORABLE LORA J. LIVINGSTON , JUDGE PRESIDING

O R D E R

PER CURIAM

Appellants, Texas Health and Human Services Commission and its Commissioner ( “Commission ” or “State appellants” ) , have appeal ed the trial court’s March 22, 2021 order granting appellee Sacred Oak Me dial Center LLC ’s application for temporary injunction and denying the Commission ’s plea to the jurisdiction. The underlying case arises from an orde r issued by the Commissio n on December 21, 2020 ( “ December 2020 Order ” ) , denying Sacred
O ak ’ s renewal application for the license for its psychiatric hospital and requiring it to cease operations immediately

. The trial court granted Sacred Oak ’ s applicati o n fo r a temporary injunction , issuing an order restraini ng the Commis sion from enforcing the December 2020 Order and requiring the Commission to “ immediately take all actions within its jurisdiction that are necessary to res tore Sacred Oak to the operatio n al status quo that existed prior to [the2

Commission ’s ] enforcement of the Order, which shall include reinstating and returning any
state license or certification from [the Commission] held and/or possessed by Sacred Oak on December 20, 2020 , ” which would a llow Sacr ed Oak to re open its psychiatric hospital.

Because the State appellants are a state agency and the head of a state agency,

u pon the filing of the notice of appeal, the trial court ’ s order was superseded by operation of law , and the Commission a s serted i n the notice of appeal that it was not subject to being counter

superseded under Texas Rule of Appellate Proce dure 24.2 (a)(3)

. See Tex. Civ. Prac. & Rem. Code § 6.001(a) ; see also Tex. R. App. P. 24.2(a)(3) ( “ W hen the judgment is for something ot h er than m oney or an interest in property,

. . . . [and] [w]hen the judgment debtor is the state, a department of this state, or the head of a department of this state, the trial court must permit a judgment to be superseded except in a matter arising from a contest ed case in an administrative

e nforcement action.” )

. Sacred Oak filed a motion requestin g that the trial court “refuse to suspend enforcement of the judgment , ” arguing that the trial court was not required to allow the Commission to supersede the temporary injunction because this matter arises from a contested case in an administrative enforcement action and thus the trial court has discretion to all ow it to post a cou nter

- supersedeas bond. See Tex. R . App. P. 24.2(a)(3). In response, the Commis s ion
argue d th at the trial court should decline to hear the motion because the Commission’s
accelerated inter locutory appeal was taken from the trial court’s denial of its plea to the jurisdiction , and thus the appeal had stayed all other proceedings in th e trial co urt

. S ee Tex. Civ. Prac. & Rem. Code § 51.014(b) ; see also In re Tex as Educ. Agency , 441 S.W.3d 747, 751 (Tex. App.

— Austin 2014, orig. proceeding) (holding that trial court abused its discretion by issu ing orders denying agency ’ s right to supers e deas afte r Section 51.014(b) automatically sta yed “ all other proceedings in the trial court ” ). The trial court subsequently issued a letter ruling in which3

it found that In re Texas Education Agency “is binding precedent on this court ” and that “[t] here
i s no indi cation that it has been overruled or revisited by the Third Court of Appeals or Texas Supreme Co urt. ” Therefore, the trial court stated that the hearing set on Sacred Oak’s Motion
to Refuse Suspension of Judgment would not go forward because “ t h e trial co urt lacks the discretion to hear the matter under binding Third Court precedent. ”

Sacred Oak subsequently filed in this Court a n “ Emergency Motion for Review of Denial of Counter

- Supersedeas or for a R ule 29.3 Temp orary Order , ” which the Com mi s sion
oppos es. For the reasons discussed bel ow, we grant the alternative relief requested by Sacred Oak , an d pur suant to our authority under Texas Rule of App ellate Procedure, we order that the trial court ’ s March 22, 202 1 temporary injunction is reinstat e d and rema ins in effect , pending disposition of the appeal.

BA CKGROUND

The parties had previously entered into an Agreed Order on October 1, 2019 , after Sacred Oak had applied to renew its license on May 1, 2019 , and the Commission had issued April 18, 2019 and June 5, 2019 N otices of V iolations and a proposed administrative penalty

. The Agreed Order resolved two Notices of Violation by probating the denial of Sacred Oak’s renewal application for a period of twelve months, subject to Sacred Oak’s compl i a nce with the terms of the Agreed Order, which among other things, required Sacred Oak’s facility to hire an
outs ide consultant approved by the Commission to create a corrective action plan identifying specific actions to be taken “to achieve sustained co m p liance w ith all applicable statutes and regulations ” and to provide the Commission with monthly reports detailing Sacred Oak’s progress in implementing the specific actions identified in the plan and confirming whether4

Sacred Oak was sustaining complianc e with all applicable statutes and regulations. The Agreed Order allowed the Commission to den y the license renewal at any time during the probation period if it found Sacred Oak had not made sufficient progress in implementing the plan and achieving sust a i ned comp liance. The Agreed Order further provided that upon completion of the corrective action plan, Sacred Oak was to request a survey by the Commission , an d if the Commission did not find that Sacred Oak had “achieved sustained compliance with all
ap p licable s tatutes and regulations by the end of the Probation Period, the Commission may deny the license renewal.” After conducting th e required post

- probation survey, the Commission identifie d d eficient practices that it cited in the Dec ember 2020 Order in support of its finding that Sacred Oak did not achieve sustained compliance with all applicable statutes and regulation s , which was the basis for its denial of Sacred Oak ’ s renewal application

.

On January 7, 2021, Sacred Oak sued the Commission , ar g u ing that the Commission’s December 2020 Order failed to find that it did not comply with applicable statutes and regulations that were the subject of the Notices that led to the Agreed Order. See Tex.
Hea lth & Safety Code § 577.016(f) (establishing that f acility in repeate d noncompliance may be scheduled for probation and “[d]uring the probation period, the hospital or facility must correct the items that were in noncompliance and report the corrections to the department for approval ”). In its petition , S a cred Oak contend s that to the extent the Commission alleged the occurrence of different violations during the probation period as the basis for denying its renewal application , Sacred Oak is entitled to a hearing and an opportunity to demonstrate or ac hie v e compliance bef ore the Commission could deny its renewal application and order it to close. Id. § 577.016(b). Sacred Oak seeks judicial review of the December 2020 Order, asserting that althou gh it submitted a request for a hearing on the o rder, the Com m is sion had advised it that the request5

would be refused because the Commission’s decision is final. 1 Id. § 577.018. Sacred Oak also seeks a declaratory judgment that the denial of its license renewal and closure of its hospital are void as ultra vir es a c ts that vio late the Texas Health and Safety Code and Texas Administrative Code

. Finally, i t seeks injunctive relief requiring the Commission to withdraw its December
2020 Order, pending the administrative processes established by Texas Administrative Cod e T it le 26, Section 510.83 and Texas Health and Safety Code Section 577.016.

On February 1, 2021, the trial court conducted a hearing on the Commission’s plea to the jurisdiction and Sacred Oak’s application for temporary injunction. At the hearing, the Commi ssion informed the co urt that although Sacred Oak’s application to the Commission for an appeal of the December 2020 Order had been docketed with its appellate division, the Commission intended to argue that Sacred Oak is not entitled t o an administr a tive appea l, based on the waive r clause in the Agreed Order.

On March 22, 2021, t he trial court issued its order den ying the plea to the jurisdiction, grant ing Sacred Oak ’ s application for temporary injunction , and grant ing the Commission’s motion to qu a sh subpoen as for certain witn ess es to appear at the temporary

injunction hearing

. In its order , the trial court made the following findings to support its grant of the t e mporary injunction :

1 The par ties dispute the construction of certain clauses in the Agreed Order , including a clause in which Sacred Oak “ waives the right to a hearing or an appeal regardin g the C o mmission fi ndings, assessment of the proposed administrative penalty and disposition of this case through the Commission ’s issuance of an Order , ” and another clause stating that “[t] he Commission does not waive the right to enforce this Order or to prosec u te any othe r violations that Respondent may hereafter commit. The Commission shall consider this Order and Respondent ’ s compliance history in the processing of any other enforcement actions and the i mposition of any subsequent penalty

. ”6

Finding that Sacred Oak has demonstrated t he likelihood of succ e ss on the merits at trial, i ncluding that the December 21, 2020 Order

. . . may violate Texas Administrative Code §510.83 by purporting to deny Sacred Oak’s applicat ion for renewal of its hospital license without providing prior notice of same, prior oppo r tu nity to demonstrate or ach ieve compliance, and prior opportunity for a hearing ; and Finding that i rreparable harm and economic injury will be sustained by Sacred Oak by the continued closure of the hospital and consequent disruption of its business wit h t he enfor cement of the [Dec ember ] Order

. . . .

As a result , the trial court ordered that :
[the Commission] is RESTRAINED from enforcing the [December] Order and that [the Commission] shall immediately take all actions within its jurisdiction that are n ec essary t o res tore Sacred O ak to the operational status quo that existed prior to [the Commission ’s ] enforcement of the Order, which shall include reinstating and returning any state license or certification from [the Commission] held and/or possessed by Sa cred Oak on December 20, 2 020, and thereafter terminated and/or removed as a result of [the Commission ’s ] efforts to enforce the Order (the “Licen ses”, e.g. , Psychiatric Hospital License No. 100390, issued to Sacred Oak on May 26, 2017). In the event t h at a docum ent evidencing any such License was physically destroyed on or after December 21, 2020, [the Commission] shall immediately issue or cause t o be issued a new such document to Sacred Oak. [ T he Commission] is further directed to immediately update its electr onic records to ref

lect that the Licenses are valid and existing, that Sacred Oak’s credentials reflect the status quo that existed on Dece mber 20, 2020, and that Sacred Oak can practice/operate in the State of Texas as it was authorized to do s o on Decemb er 20, 2020 [.]

The trial court further ordered that the case is abated pending the outcome of the administrative hearing docketed at the C ommissi on and exhaustion of administrative remedies , but that “[s] uch abatement does not affect and will n o t r estrict the Court’s enforc ement of this order and the temporary injunction enjoining [the Commission’s] termination of the license, which shall in any event remain in place pending a final hearing in this proceeding [.]” The trial court set a final
hea r ing in the matter for October 11, 2021.7 The Commission immediately filed its notice of appeal, and as described above, aft er the trial court determined that it lacked discretion to hear Sacred Oak ’ s motio n to
counter

- supersed e the judgme nt, Sacred Oak f i led it s Em ergency Motion for Review of Denial of
Counter

- Supersedeas or for a R ule 29.3 Temp orary Order in this Court.

ANALYSIS In its emergency motion, Sacred Oak argues that the trial court erred in concluding that the Section 51.014(b) stay applied t o i ts coun ter

- supersed e as mot ion and that it should have allowed Sacred Oak to counter

- supersede t he order. Accordingly, Sacred Oak requests that this Court review the trial court’s ruling pursuant to Texas Rule of Appellat e Procedure 24.4( a) , and upon r e vie w, that we reverse the tri al court’s ruling that it could not hear the counter

- supersedeas motion and order that the tem porary injunction will remain in effect upon Sacred Oak’s posting of security in the amount of $10 (the same amount s et by the trial

cou rt in t he temp orary injunc tion) . It also requests that we issue a temporar y order under Rule 24.4(c) that the temporary injunction remain in effect, pend ing our consideration of this motion. In the alternative, Sacred Oak requests that the Court issue a temporar y order under Rule 29.3 that the temporary injunction remains in effect pending the disposition of this appeal, in order to preserve the rights of the parties.

In response, the Commission argues that (1) the trial court properly decided that i t h ad no di scretion to consid er the counter

- supersedeas motion , based on this Court’s 2014 opinion
in In re Texas Education Agency , 441 S.W.3d at 751 , and on the supreme court’s more re cent holding in In re Geomet Recycling LLC , 578 S.W.3d 82, 91

- 92 (Tex. 2 01 9) , whic h affirms the stay imposed by Section 51.014(b) in the TCPA context, and (2) we should deny Sacred Oak’s8

request for Rule 29.3 relief because Sacred Oak has not presented a showing of compelling circumstances to establish a right to relief or fu l ly explain ed the facts neces sary to show that the requested relief is necessary to preserve the parties’ rights . The Commission con tends that reinstating the temp orary injunction would operate to change the status quo, not preserve it , because Sacred Oak ’ s psychiat ric hospital has b een closed since the Commission issued its December 2020 Order

. The Commission also focuses on the facts leading to the December Order , arguing that Sacred Oak’s facility was closed due to concerns ab out patient safety.

In r e pl y, Sacre d Oak points out that t he Commission is incorrect that reinstating the temporary injunction would change the status quo rather than preserving it , because in the context of injunctive relief, the status quo is “the last, actual, peaceable, non

- c o nt ested st atus which preceded the pending controversy.” In re Newton , 146 S.W.3d 648, 651 (Tex. 2004) (orig. proceeding). Thus, Sacred Oak argues , by res training the Commission from enforcing the December 2020 Order, the trial court properly required th e C ommissio n to restore the status
quo “that existed prior to [ the Commission’s ] enforcement of the December 2020 Order” by “reinstating and returning any state license or certification from [the Commission] held and/or possessed by Sacred Oak on December 2 0, 2020.” Moreover, the Commission stipula ted in the tri al court that Sacred Oak would suffer irreparable harm and economic injury without the tempo rary injunction , an d Sacred Oak argues that the stipulated

- to irreparable harm is the type of “compelling cir cumstan ces” demonstrating that Rule 29.3 relief is “necessary to preserve
the parties’ rights

. ” In addition, Sacred Oak asserts the Commission’s characterization of certain
facts is disputed and that “[t]he essence of the parties’ dispute in this case is [the Co mmission’s] false findings from [i ts November 2020] survey and its denial of Sacred Oak’s right to challenge
them before any tribunal.”9

Texas Civil Practice and Remedi es Code Section 51.014(b) stay

Sacred Oak ur ges us to reconsider our 2014 ho l di ng in In re Texas Education Agency and de termine that the Section 51.014(b) stay does not apply to preclude the trial court from conducting a counter

- supersedeas hearing

. Sacred Oak contends that because in a suit against the State , the State routinely fi les a pl ea to the jurisdiction and an int erlocutory appeal of the denial of the plea, the application of the Section 51 .0 14 (b) automatic stay effectively nullifies Rule 24. 2(a)(3)’s provisi on allowing the trial court to retain discretion to grant counte r s upersede as in a matter arising from a con tested case in an administrative enforcement action

. However , not every case arising from a contested case in an administrat ive enf orcement action will necessarily be subject to th e Section 51 .0 14 (b) automatic st a y , so the Rule 24. 2(a)(3) exception is not actually nullified by the stay ’ s application

. Taking into consideration that fact and the T exas Supreme Court ’ s recent holding in In re Ge o met , 578 S.W.3d at 87, w hich affirm s that a court of appeals is not auth o r ized to l ift the Section 51.014(b) stay e ither “ alt o gether or for a limited purpose , ” w e decline to reconsider our prior opinion in In re Texas Education Agency

. We conclude that the trial court cor rectly determined that it lacked discretion to consider S acred Oak ’ s motion to counter

- supersede t he temp orary inju nct ion.

Our authority to grant Rule 29.3 t emporar y relief to preserve the parties ’ rights

Rule 29.3 allows us to “make any temporary orders necessary to preserve the parties ’ rights until dispo s ition of t he appeal.” T he Texas Supreme Court recently confirmed that courts of appeals h ave the power to provide relief from the State’s automatic right to supersedea s under Rule 29.3 , even when Rule 24.2(a)(3) applies to preclude a trial court from iss u ing a

coun ter

- supersedeas order

. See In re Texas Educ

. Agency (In re TEA) , 619 S.W. 3d 679 , 69210

(Tex. 2021) (orig. proceeding) (holding “ court of appeals was not without power to issue temporary relief

” under Rule 29.3 from State’ s automatic superseding o f trial court’s te mporary inj unction) ; see also Texas Education Agency v. Houston Independent School Dist. ( HISD) , 609 S.W.3d 569 (Tex. App.

— Austin 2020 , order) (per curiam) (issuing temporary order continuing trial court’s injunctio n pending disposition o f appeal)

. In In r e TEA , the supreme

court den ied the state agency ’ s request for mandamus relief from this Court’s Rule 29.3 temporary order continuing the trial court’s temporary injunction for the duration of the appeal. 619 S.W. 3d at 692

. In that cas e , the trial court had enjoin ed the TEA’s Commissioner from appointing a board of managers to replace HISD ’ s elected trustees, appointing a district

- level
conservat or, and lowering HIS D ’ s accreditation status. Id. at 681

.

In this contex t, in which Sacre d Oak seeks a Rule 29.3 temporary order to protect the right it would otherwise have under Rule 24.2(a)(3) to seek counter

- supersedeas, it is appropriate to consider the purpose of supersedeas

. The purpose of supersedeas is “to preserve
t he status quo by s taying the e xecution or enforcement of the judgment or order appealed from pending the appeal.” I

d. at 681 (quoting Shell Petrol. Corp. v. Grays , 62 S.W.2d 113, 118 (1933) )

. How ever, as in In re TEA , “[i]nstead of preserving t he status qu o,” the Commissi o n’s

“ suspens ion of the temporary injunction would, in this case, have the contradictory effect of permitting the status quo to be altered, becaus e if compliance with the injunction were not required, ” Sacred Oak’s license to op erate its fa cility, like “ HI S D ’ s manner o f governance and accreditation rating [,] could be changed from ‘ the last, actual, peaceable non

- contested
status [that] preceded the pending controversy. ’ ” I d. (quoting Clint Indep. Sch. Dist. v. Marquez , 487 S.W.3 d 538, 555 ( Tex. 2016) ). Th e last peacea ble non

- contested stat us before the controversy here was that Sacred O ak ’ s psychiatric hospital was li censed and open

.11 The procedural posture s of this case and In re TEA are similar, with both cases involving a t rial court’s grant of a tempo r ary injunct ion enjoining a State agency from taking or enforcing final administrative action against a party governed by the agency’s regulations aft er the parties have engaged in a lengthy administra tive process

. See id. at 681

. The C omm ission attempts to distingui sh this case from the facts in HISD and In re TEA by arguing that part of this Court’s rationale for granting Rule 29.3 relief was that the TEA’s decision was not yet final and HISD had sued to prevent a final decis ion . Th us, t he Commission a r gues, we wer e attempting to preserve the status quo before the TEA made a final decision. The Commission contend s that a different analy sis should apply here because the December 2020 Order is a final decision , which required Sacred Oak to close, and thu s a Rule 29.3 orde r allowing it to reopen will change the status quo rather than preserving it

.

T his argume nt misconstrues the Court’s point in HI SD , which was that absent our

“ inherent power to make temporary orders to preser ve the partie s ’ rights until disposition of th e appeal, the application of R ule 24.2(a)(3) would prevent a party from ever meaningfully challenging acts by the executive branch that the party alleges to be both unlawful and reviewable by courts and that it further alle ges will cause i t irreparable ha r m.” HISD , 609 S.W.3d
at 578

. In HISD , unlike in this case, o nce the TEA issued a final decision, by statute that decision would be unreviewable by any court ; in contrast, here a disputed issue is whether
Sacr ed Oak is ent itled to furthe r review of the Co mmission’s decision in the December 2020 Order (with the Commission contending both that Sacred Oak waived its right to an appeal and that it has failed to exhaust its administrative remedies)

. Thus, our point in H ISD was not , as the
Com m ission argues, that th e status quo was whatever the sta tus was before the agency ’ s order became final; it was that we have th e power to preserve a party ’ s right to judicia l review of acts12

that it alleges are unlawful and will c ause it irrep a rable harm. S e e id. In this case, w e note that the Commission conceded at the hearing that Sacred Oak faced irreparable harm from continued closure of the hospital if the Commission enforced the December 2020 Order, and it does not dispute that Sacred O ak would be irr e parabl y harm ed by continued closure in its response to the Rule 29.3 motion. And again, the status quo to be preserved is the last peaceable non - contested status before the controversy , which in Sacred Oak’s case means that it was licensed and open.

On e difference between th is ca se and HISD is that the TEA’s rules specifically provided that HISD ’s right to a formal review of the Commissioner’s decisions was not a
contested

- case hearing , id. at 575, while in this case Sacred O ak contends t hat it was impr o perly denied its right to a contested

- case hearing before the Commission denied its license re newal , and there is now an administrative hearing docketed by the Commission’s appellate division

. Thus, but for the application of the Section 51 .014(b) stay, t h e trial court would have r etained discretion under Rule 24.2(a)(3) to allow Sacred Oak to counter

- supersed e the temporary injunction and likely would have granted it s counter

- supersedeas motion for the same reasons that it gra nted the temp o rary injunc tion

. As the supreme court not ed in In re Texas Education Agency , th e Rule’s exception for matters arising from contested

- case hearings left intact the court’s holding in In re State Board for Educator Certification

. In that case , con struing R ule 24.2(a)(3) a s it existed in 2014, the supreme court concluded :
TRAP 24.2(a)(3) gives the trial court discretion, quite sensibly, to prevent the State from re

- revoking Montalvo ’ s certification

— the ultimate professional sanction

— while it s pends years ap pealing the cou r t’ s reversal of the State ’ s first revocation, something the trial court found “arbitrary and capricious.” The State

— as yet unsupported by a victory on the merits in any court

— wants to strip Montalvo of his livelihood while th e appellate pr ocess grinds on , and if he manages to rega in his professional license after having been kicked out of his profession for years

— well, bygones. That’s a striking assertion of unbridled13

executive power

— to e nforc e administrati ve orders that a tr ial court has reversed

— and TR A P 24.2(a)(3) recognizes th e judiciary ’ s authority to say no.
In re State Bd. for Educator Certification , 452 S.W.3d 802, 809 (Tex. 2014)

. The fact that this case falls into Rule 24.2(a)(3) ’ s exception for contes ted cases als o supports our granting the
R u le 29.3 motion and reinsta ting the temporary injunction.

Finally, the magnitude of the parties’ competing rights that are at issue here is similar to the magnitude of the parties’ rights that were at issue in In re TEA , incl uding the
comp onent of a publ i c interest. In In re TEA , the supreme court noted that it was “sensitive to [ the TEA’s] concerns that protracted litigation without suspension of the temporary injunction could delay remedial measures designed to protect stud ents and impro ve academic ach i evement, ” 619 S.W.3d at 690 , and here we are equally sensitive to the patient

- safety concerns alluded to by the Commission. I n its response, the Commission disputes Sacred Oak’s assertion that it has “cared for 4,602 psy chiatric patie nts without a single patient death or jeop ardy to patient safety.” The Commission point s to its finding in the June 2019 Notice of Violation of ligature risks to patients , which it asserts “posed a significant and serious risk to patient saf ety,” and to a December 4, 2020 le t ter that the U.S. Dep artment of Health & Human Services’ Centers for
Medicare & Med icaid Services division (CMS) issued to Sacred Oak

.

As an initial matter, we note that under the Commission’s own rules, it could only allow Sacred Oa k to enter into a pr o bation period if its facility’s noncompliance with the rules “[does] not endanger the health and safety of the public.” 26 Tex. Admin Code § 510.83( 4 ) (2021) (Health & Human Servs. Comm’n, Enforcement). A review of the evidence prese nted to the trial co u rt at the temp orary - injunction hearing show s that , as required by the Agreed Order, Sacred Oak engaged an outside consultant to create and implement a corrective action plan for14

the violations addressed by the Agreed Ord er , including t he ligature risks id e ntified in the June 2019 Notice of Violation

. According to the Corrective and Preventive Action Plan:
Actions to correct these deficiencies occurred immediately once identified. All ligature risk [s] have been mitigated and the envir onmental assessment i s an ongoing liv ing d ocument that is discussed at committees routinely. All admitted patients at risk of self

- harm in 2019 and so far in 2020 have be e n safely discharged to an outpatient therapy program

— No patient harm has occurred in the facility

.

In the December 2020 Order, wh ich was based on deficiencies identified by the Commission in its survey conducted at the end of Sacred Oak’s probation period, t he Commission does not allege that the ligature risks had not been mitigated or that there was any o ngoing deficiency
in the ar ea of suicide prevention. And w hile the CMS letter states that Sacred Oak “ failed to
meet one or more Medicare requirements, including deficiencies that represent an immediate jeopa rdy to patien t health and safety ,” the letter d oes not specify what those deficiencies are beyond stating that Sacred Oak “was not in compliance with the following Conditions of Participation: 42 CFR 482.12 Governing Body [;] 42 CFR 482.13 Patient Rights .” Moreover , as Sacred Oak p oints out in its rep l y, the CMS letter was based on its review of records from the Commission’s November 4, 2020 survey conducted at the end of Sacred Oak’s probation period

— the survey that alleges new deficien cies, which Sacred Oak disputes , and th ose dis puted defici enci e s a r e the basis for Sacred Oak’ s suit asserting its right to a hearing on those new alleged violations.

We ha ve reviewed the deficiencies cited by the Commission in the December Order . We have also reviewed the evidence sub mitted to the trial court at the h earin g, which includes the cor

rectiv e action plan created by Sac red Oak ’s outside consultant, the month ly report s that the consultant sent to the Commission, and the Commission ’s post

- probation survey15

report (which is the basis for th e December 2020 Order ) . W hile we make no comments on the merits of either party ’s arguments regarding th e defici enci es alleged by the Commission in the December 2020 Order , we note that t he alleged violations that appear to bear most directly on patien t sa fety relat e to patie n t seclusions or restraints (which can include medication as well as physical restraint ) , w ith the treatment of one patient (Patient #11) being cited in the December
2020 Order in connection with multiple alleged violations

. We n ote th at n othing in the De c em ber
2020 Order or the Commission’s survey rep ort indicates that the treatment of Patient #11 ever resulted in an immediate threat to the patient’s health or safety.

We further n ote that the Commission was receiving mon thly reports from Sacred Oak ’ s ou t side con sultant regarding Sacred Oak’s progress in implementing the specific actions identified in the corrective

- action plan and confirming whether Sacred Oak was sustaining compliance with all applicable statutes and reg ulations. Un der the terms of the Agreed Order,
t he Commission could have deni ed Sacred O ak ’ s license renewal at any time during the probation period if it found Sacred Oak had not made sufficient progress in implementing the plan and achieving sustaine d compliance

. I nstead, at the end o f the period, when Sacred Oak requested the C ommission survey the facility as required by the Agreed Order , the Commission

“ identifie d and cited deficient practices as outlined in the attached Statement of Deficiencies .” Accordingly, “ [ a] s a result of the d eficiencies found during the survey, the Co mmission [found Sacred Oak] did not achieve sustained compliance with all applicable statutes and regulations by the end of the p robation p eriod ,” and denied Sacred Oak’s l ice nse renew al appli cation. S ee also
26 Tex. Admin Code § 510.83( 1 ) (J) (2021) (Heal th & Human Servs. Comm’n, Enforcement) (allowing Commission to deny license for failure to comply with applicable requirements within designated probation period)

. Notably, i n opposing Rule 2 9.3 temporary relief , t he Commission16

does not argue that it deni ed Sacred Oak’s license renewal on t he basis of Commission Rule 510.83(3) , which allows the Commission to “ suspend a license for 10 days pending a hearing if after an investig ation the departm ent finds that there is an immediate threat to the health or saf ety of the patients or employees of a licensed facility. ” 26 Tex. Admin Code § 510.83 (3) ( 2021) ( Health & Human Servs. Comm’n , Enforcement)

. Because the Commission does not contend that it p robated or denied Sa c red Oak’s license based on “an immediate th reat to the health or

s afety” of its patients or employees , nor does it point to such a violation having ever occurred when arguing against the reinstatement of the trial cour t’s temporary inj unction , in contrast to the irreparable harm Sacred Oak will und isputedly suffer from continued closure, on balance, the
Court concludes that Sacred Oak has shown “compelling circumstances” that require the Court
to reinstate the trial cou rt’s tempo rary in junction to preserve the parties’ rights. See McNeely v.
Watert ight Endeavors, Inc. , No. 03

- 18

- 00166

- CV, 2018 WL 1576 866, at *1 (Tex. App.

— Austin Mar. 23, 2018, order) (per curiam) (citing Lamar Builders, Inc. v. Guardian Sav. & Loan Ass’n , 786 S.W.2d 789, 791 (Tex. A pp.

— Hou s ton [1st Dist.] 1990, no writ) (requiring movant for Rul e 29.3 relief to make a clear showing it is entitled t o relief, including “compelling circumstances”
establishi ng ne cessity for relief). Accordingly, we grant Sacred Oak ’ s re quest for Rule 29 .3 temp o rary relief and order that the trial court ’ s temporary i njunction is reinstat ed to pre serve the parties ’ rights until the disposition of th is appeal

.

It is ordered on June 9, 2021.

Before Justices Goodwin, Triana, and Kelly Just ice Goodwin no t parti c ipating