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, Appellants

v.

Sacred Oak Medical Center 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 appealed the trial court’s March 22, 2021 order 

granting appellee Sacred Oak Medial Center LLC’s application for temporary injunction and 

denying the Commission’s plea to the jurisdiction. The underlying case arises from an order

issued by the Commission on December 21, 2020 (“December 2020 Order”), denying Sacred 

Oak’s renewal application for the license for its psychiatric hospital and requiring it to cease 

operations immediately. The trial court granted Sacred Oak’s application for a temporary 

injunction, issuing an order restraining the Commission from enforcing the December 2020 

Order and requiring the Commission to “immediately take all actions within its jurisdiction 

that are necessary to restore Sacred Oak to the operational status quo that existed prior to [the 
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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 allow Sacred Oak to reopen its psychiatric hospital.

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

upon the filing of the notice of appeal, the trial court’s order was superseded by operation of law, 

and the Commission asserted in the notice of appeal that it was not subject to being countersuperseded under Texas Rule of Appellate Procedure 24.2(a)(3). See Tex. Civ. Prac. & Rem. 

Code § 6.001(a); see also Tex. R. App. P. 24.2(a)(3) (“When the judgment is for something other 

than money 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judgment to be superseded except in a matter arising from a contested case in an administrative

enforcement action.”). Sacred Oak filed a motion requesting 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 allow it to 

post a counter-supersedeas bond. See Tex. R. App. P. 24.2(a)(3). In response, the Commission 

argued that the trial court should decline to hear the motion because the Commission’s 

accelerated interlocutory 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 the trial court. See Tex. Civ. 

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

App.—Austin 2014, orig. proceeding) (holding that trial court abused its discretion by issuing 

orders denying agency’s right to supersedeas after Section 51.014(b) automatically stayed “all 

other proceedings in the trial court”). The trial court subsequently issued a letter ruling in which 
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it found that In re Texas Education Agency “is binding precedent on this court” and that “[t]here 

is no indication that it has been overruled or revisited by the Third Court of Appeals or Texas 

Supreme Court.” Therefore, the trial court stated that the hearing set on Sacred Oak’s Motion 

to Refuse Suspension of Judgment would not go forward because “the trial court lacks the 

discretion to hear the matter under binding Third Court precedent.”

Sacred Oak subsequently filed in this Court an “Emergency Motion for Review of 

Denial of Counter-Supersedeas or for a Rule 29.3 Temporary Order,” which the Commission 

opposes. For the reasons discussed below, we grant the alternative relief requested by Sacred 

Oak, and pursuant to our authority under Texas Rule of Appellate Procedure, we order that the 

trial court’s March 22, 2021 temporary injunction is reinstated and remains in effect, pending 

disposition of the appeal.

BACKGROUND

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 Notices of Violations 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 compliance with the 

terms of the Agreed Order, which among other things, required Sacred Oak’s facility to hire an 

outside consultant approved by the Commission to create a corrective action plan identifying 

specific actions to be taken “to achieve sustained compliance with 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 whether 
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Sacred Oak was sustaining compliance with all applicable statutes and regulations. The Agreed 

Order allowed the Commission to deny 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 sustained compliance. The Agreed Order further provided that upon completion 

of the corrective action plan, Sacred Oak was to request a survey by the Commission, and if 

the Commission did not find that Sacred Oak had “achieved sustained compliance with all 

applicable statutes and regulations by the end of the Probation Period, the Commission may deny 

the license renewal.” After conducting the required post-probation survey, the Commission 

identified deficient practices that it cited in the December 2020 Order in support of its finding 

that Sacred Oak did not achieve sustained compliance with all applicable statutes and 

regulations, which was the basis for its denial of Sacred Oak’s renewal application.

On January 7, 2021, Sacred Oak sued the Commission, arguing 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. 

Health & Safety Code § 577.016(f) (establishing that facility in repeated 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, Sacred Oak contends 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 achieve compliance 

before 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 although it 

submitted a request for a hearing on the order, the Commission had advised it that the request 
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would be refused because the Commission’s decision is final.1Id. § 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 vires acts that violate the Texas Health and Safety Code and Texas Administrative 

Code. Finally, it seeks injunctive relief requiring the Commission to withdraw its December 

2020 Order, pending the administrative processes established by Texas Administrative Code

Title 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 Commission informed the court 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 to an administrative appeal, based 

on the waiver clause in the Agreed Order.

On March 22, 2021, the trial court issued its order denying the plea to the 

jurisdiction, granting Sacred Oak’s application for temporary injunction, and granting the 

Commission’s motion to quash subpoenas for certain witnesses to appear at the temporaryinjunction hearing. In its order, the trial court made the following findings to support its grant of 

the temporary injunction:

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 The parties 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 regarding the Commission 

findings, 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 prosecute any other 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 imposition of any subsequent 

penalty.”
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Finding that Sacred Oak has demonstrated the likelihood of success on the merits 

at trial, including that the December 21, 2020 Order . . . may violate Texas 

Administrative Code §510.83 by purporting to deny Sacred Oak’s application for 

renewal of its hospital license without providing prior notice of same, prior 

opportunity to demonstrate or achieve compliance, and prior opportunity for a 

hearing; and

Finding that irreparable harm and economic injury will be sustained by Sacred 

Oak by the continued closure of the hospital and consequent disruption of its 

business with the enforcement of the [December] 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 necessary to restore Sacred Oak 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 Sacred Oak on December 20, 2020, and thereafter 

terminated and/or removed as a result of [the Commission’s] efforts to enforce 

the Order (the “Licenses”, e.g., Psychiatric Hospital License No. 100390, issued

to Sacred Oak on May 26, 2017). In the event that a document evidencing any 

such License was physically destroyed on or after December 21, 2020, [the 

Commission] shall immediately issue or cause to be issued a new such document 

to Sacred Oak. [The Commission] is further directed to immediately update its

electronic records to reflect that the Licenses are valid and existing, that Sacred 

Oak’s credentials reflect the status quo that existed on December 20, 2020, and 

that Sacred Oak can practice/operate in the State of Texas as it was authorized to 

do so on December 20, 2020[.]

The trial court further ordered that the case is abated pending the outcome of the administrative 

hearing docketed at the Commission and exhaustion of administrative remedies, but that “[s]uch 

abatement does not affect and will not restrict the Court’s enforcement 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 

hearing in the matter for October 11, 2021.
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The Commission immediately filed its notice of appeal, and as described 

above, after the trial court determined that it lacked discretion to hear Sacred Oak’s motion to 

counter-supersede the judgment, Sacred Oak filed its Emergency Motion for Review of Denial of 

Counter-Supersedeas or for a Rule 29.3 Temporary 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 to its counter-supersedeas motion and that it 

should have allowed Sacred Oak to counter-supersede the order. Accordingly, Sacred Oak 

requests that this Court review the trial court’s ruling pursuant to Texas Rule of Appellate 

Procedure 24.4(a), and upon review, that we reverse the trial court’s ruling that it could not hear 

the counter-supersedeas motion and order that the temporary injunction will remain in effect 

upon Sacred Oak’s posting of security in the amount of $10 (the same amount set by the trial

court in the temporary injunction). It also requests that we issue a temporary order under Rule 

24.4(c) that the temporary injunction remain in effect, pending our consideration of this motion.

In the alternative, Sacred Oak requests that the Court issue a temporary 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 it

had no discretion to consider 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 recent 

holding in In re Geomet Recycling LLC, 578 S.W.3d 82, 91-92 (Tex. 2019), which affirms the 

stay imposed by Section 51.014(b) in the TCPA context, and (2) we should deny Sacred Oak’s 
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request for Rule 29.3 relief because Sacred Oak has not presented a showing of compelling 

circumstances to establish a right to relief or fully explained the facts necessary to show that 

the requested relief is necessary to preserve the parties’ rights. The Commission contends that 

reinstating the temporary injunction would operate to change the status quo, not preserve it, 

because Sacred Oak’s psychiatric hospital has been 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 about patient safety.

In reply, Sacred Oak points out that the 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-contested status 

which preceded the pending controversy.” In re Newton, 146 S.W.3d 648, 651 (Tex. 2004)

(orig. proceeding). Thus, Sacred Oak argues, by restraining the Commission from enforcing the 

December 2020 Order, the trial court properly required the Commission 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 20, 2020.” Moreover, the Commission stipulated in the 

trial court that Sacred Oak would suffer irreparable harm and economic injury without the 

temporary injunction, and Sacred Oak argues that the stipulated-to irreparable harm is the type 

of “compelling circumstances” 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 Commission’s] 

false findings from [its November 2020] survey and its denial of Sacred Oak’s right to challenge 

them before any tribunal.”
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Texas Civil Practice and Remedies Code Section 51.014(b) stay

Sacred Oak urges us to reconsider our 2014 holding in In re Texas Education 

Agency and determine 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 files a plea to the jurisdiction and an interlocutory appeal

of the denial of the plea, the application of the Section 51.014(b) automatic stay effectively 

nullifies Rule 24.2(a)(3)’s provision allowing the trial court to retain discretion to grant countersupersedeas in a matter arising from a contested case in an administrative enforcement action. 

However, not every case arising from a contested case in an administrative enforcement action 

will necessarily be subject to the Section 51.014(b) automatic stay, so the Rule 24.2(a)(3)

exception is not actually nullified by the stay’s application. Taking into consideration that fact 

and the Texas Supreme Court’s recent holding in In re Geomet, 578 S.W.3d at 87, which affirms 

that a court of appeals is not authorized to lift the Section 51.014(b) stay either “altogether or for

a limited purpose,” we decline to reconsider our prior opinion in In re Texas Education Agency.

We conclude that the trial court correctly determined that it lacked discretion to consider Sacred 

Oak’s motion to counter-supersede the temporary injunction.

Our authority to grant Rule 29.3 temporary relief to preserve the parties’ rights

Rule 29.3 allows us to “make any temporary orders necessary to preserve the 

parties’ rights until disposition of the appeal.” The Texas Supreme Court recently confirmed that 

courts of appeals have the power to provide relief from the State’s automatic right to supersedeas

under Rule 29.3, even when Rule 24.2(a)(3) applies to preclude a trial court from issuing a 

counter-supersedeas order. See In re Texas Educ. Agency (In re TEA), 619 S.W. 3d 679, 692
10

(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 of trial court’s temporary 

injunction); 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 injunction pending disposition of appeal). In In re TEA, the supreme 

court denied 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 case, the trial court had enjoined the TEA’s Commissioner from 

appointing a board of managers to replace HISD’s elected trustees, appointing a district-level 

conservator, and lowering HISD’s accreditation status. Id. at 681.

In this context, in which Sacred 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 

the status quo by staying the execution or enforcement of the judgment or order appealed from 

pending the appeal.” Id. at 681 (quoting Shell Petrol. Corp. v. Grays, 62 S.W.2d 113, 118 

(1933)). However, as in In re TEA, “[i]nstead of preserving the status quo,” the Commission’s

“suspension of the temporary injunction would, in this case, have the contradictory effect of 

permitting the status quo to be altered, because if compliance with the injunction were not 

required,” Sacred Oak’s license to operate its facility, like “HISD’s manner of governance 

and accreditation rating[,] could be changed from ‘the last, actual, peaceable non-contested 

status [that] preceded the pending controversy.’” Id. (quoting Clint Indep. Sch. Dist. v. Marquez, 

487 S.W.3d 538, 555 (Tex. 2016)). The last peaceable non-contested status before the controversy

here was that Sacred Oak’s psychiatric hospital was licensed and open.
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The procedural postures of this case and In re TEA are similar, with both cases 

involving a trial court’s grant of a temporary injunction enjoining a State agency from taking or 

enforcing final administrative action against a party governed by the agency’s regulations after

the parties have engaged in a lengthy administrative process. See id. at 681. The Commission 

attempts to distinguish 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 decision. Thus, the Commission argues, we were attempting to 

preserve the status quo before the TEA made a final decision. The Commission contends that a 

different analysis should apply here because the December 2020 Order is a final decision, which 

required Sacred Oak to close, and thus a Rule 29.3 order allowing it to reopen will change the 

status quo rather than preserving it.

This argument misconstrues the Court’s point in HISD, which was that absent our 

“inherent power to make temporary orders to preserve the parties’ rights until disposition of 

the appeal, the application of Rule 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 alleges will cause it irreparable harm.” HISD, 609 S.W.3d

at 578. In HISD, unlike in this case, once the TEA issued a final decision, by statute that 

decision would be unreviewable by any court; in contrast, here a disputed issue is whether 

Sacred Oak is entitled to further review of the Commission’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 HISD was not, as the 

Commission argues, that the status quo was whatever the status was before the agency’s order 

became final; it was that we have the power to preserve a party’s right to judicial review of acts 
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that it alleges are unlawful and will cause it irreparable harm. See id. In this case, we 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 Oak would be irreparably harmed 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.

One difference between this case 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 Oak contends that it was improperly 

denied its right to a contested-case hearing before the Commission denied its license renewal, 

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, the trial court would have retained 

discretion under Rule 24.2(a)(3) to allow Sacred Oak to counter-supersede the temporary 

injunction and likely would have granted its counter-supersedeas motion for the same reasons 

that it granted the temporary injunction. As the supreme court noted in In re Texas Education 

Agency, the 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, construing Rule 

24.2(a)(3) as 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 spends years appealing the court’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 the appellate process grinds on, and if he 

manages to regain his professional license after having been kicked out of his 

profession for years—well, bygones. That’s a striking assertion of unbridled 
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executive power—to enforce administrative orders that a trial court has reversed—

and TRAP 24.2(a)(3) recognizes the 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 contested cases also supports our granting the 

Rule 29.3 motion and reinstating 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, including the 

component of a public 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 students and improve academic achievement,”

619 S.W.3d at 690, and here we are equally sensitive to the patient-safety concerns alluded to by 

the Commission. In its response, the Commission disputes Sacred Oak’s assertion that it has 

“cared for 4,602 psychiatric patients without a single patient death or jeopardy to patient safety.” 

The Commission points 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 safety,” and to a

December 4, 2020 letter that the U.S. Department of Health & Human Services’ Centers for 

Medicare & Medicaid 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 Oak to enter into a probation 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 presented to 

the trial court at the temporary-injunction hearing shows that, as required by the Agreed Order, 

Sacred Oak engaged an outside consultant to create and implement a corrective action plan for 
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the violations addressed by the Agreed Order, including the ligature risks identified 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 environmental assessment is an ongoing

living document that is discussed at committees routinely. All admitted patients 

at risk of self-harm in 2019 and so far in 2020 have been safely discharged to an 

outpatient therapy program — No patient harm has occurred in the facility.

In the December 2020 Order, which was based on deficiencies identified by the Commission in 

its survey conducted at the end of Sacred Oak’s probation period, the Commission does not 

allege that the ligature risks had not been mitigated or that there was any ongoing deficiency 

in the area of suicide prevention. And while the CMS letter states that Sacred Oak “failed to 

meet one or more Medicare requirements, including deficiencies that represent an immediate 

jeopardy to patient health and safety,” the letter does 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 points out in its reply, 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 deficiencies, which Sacred Oak disputes, and those disputed 

deficiencies are the basis for Sacred Oak’s suit asserting its right to a hearing on those new 

alleged violations.

We have reviewed the deficiencies cited by the Commission in the December 

Order. We have also reviewed the evidence submitted to the trial court at the hearing, which 

includes the corrective action plan created by Sacred Oak’s outside consultant, the monthly 

reports that the consultant sent to the Commission, and the Commission’s post-probation survey 
15

report (which is the basis for the December 2020 Order). While we make no comments on the 

merits of either party’s arguments regarding the deficiencies alleged by the Commission in the 

December 2020 Order, we note that the alleged violations that appear to bear most directly on 

patient safety relate to patient seclusions or restraints (which can include medication as well as 

physical restraint), with the treatment of one patient (Patient #11) being cited in the December 

2020 Order in connection with multiple alleged violations. We note that nothing in the December

2020 Order or the Commission’s survey report indicates that the treatment of Patient #11 ever 

resulted in an immediate threat to the patient’s health or safety.

We further note that the Commission was receiving monthly reports from Sacred 

Oak’s outside consultant 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 regulations. Under the terms of the Agreed Order, 

the Commission could have denied Sacred Oak’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 sustained compliance. Instead, at the end of the period, when Sacred Oak 

requested the Commission survey the facility as required by the Agreed Order, the Commission

“identified and cited deficient practices as outlined in the attached Statement of Deficiencies.”

Accordingly, “[a]s a result of the deficiencies found during the survey, the Commission [found 

Sacred Oak] did not achieve sustained compliance with all applicable statutes and regulations by 

the end of the probation period,” and denied Sacred Oak’s license renewal application. See also 

26 Tex. Admin Code § 510.83(1)(J) (2021) (Health & Human Servs. Comm’n, Enforcement)

(allowing Commission to deny license for failure to comply with applicable requirements within 

designated probation period). Notably, in opposing Rule 29.3 temporary relief, the Commission 
16

does not argue that it denied Sacred Oak’s license renewal on the basis of Commission Rule 

510.83(3), which allows the Commission to “suspend a license for 10 days pending a hearing if 

after an investigation the department finds that there is an immediate threat to the health or safety 

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 probated or denied Sacred Oak’s license based on “an immediate threat to the health or 

safety” of its patients or employees, nor does it point to such a violation having ever occurred 

when arguing against the reinstatement of the trial court’s temporary injunction, in contrast to the 

irreparable harm Sacred Oak will undisputedly suffer from continued closure, on balance, the 

Court concludes that Sacred Oak has shown “compelling circumstances” that require the Court 

to reinstate the trial court’s temporary injunction to preserve the parties’ rights. See McNeely v. 

Watertight Endeavors, Inc., No. 03-18-00166-CV, 2018 WL 1576866, 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. App.—Houston [1st Dist.] 1990, no writ) (requiring movant for Rule 

29.3 relief to make a clear showing it is entitled to relief, including “compelling circumstances” 

establishing necessity for relief). Accordingly, we grant Sacred Oak’s request for Rule 29.3 

temporary relief and order that the trial court’s temporary injunction is reinstated to preserve the

parties’ rights until the disposition of this appeal.

It is ordered on June 9, 2021.

Before Justices Goodwin, Triana, and Kelly

 Justice Goodwin not participating