### 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. 03-15-00349- CV

Shamr ock P sychiatric Clinic, P .A., Appellant

v.
Texas Health and Human Servic es Com m ission ; Charles Sm ith, Executive Com m ission er of the Texas Health an d Hu m an Services Com m ission ; and S tuart W. Bowen, Jr., Insp ect or G eneral for the Texas Healt h and Human Servic es Com m ission Of fi ce of Insp ect or G eneral, Appellees 1

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -GN-1 4-0 0183 3, H ONO RAB LE O RLINDA NARANJO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Shamrock Psy chiatric Clini c, P.A., a Medica id provider, sued the Texas Hea lth and

Human Service s Commi ssion (HHSC); its Ex ecutive Commi ssioner, Charles Smit h; and Stuart W.
Bow en, J r., I nspector Gene ral for the HHSC Offic e of I nspector Gene ral (OI G), (collec tively , the
S t at e) in Travis County district court seeking , among other relief , a writ of mandamus to compel

an administrative hear ing on the OI G’s decision to rec oup an alleg ed overpa y ment o f M ed i ca id

re i mbursements. See Tex. Gov’t Code § 531.1201(a) (g overning appea l of HHSC’s o r OIG’ s

This appea l was orig inally filed in the names of the prede cessor s to the prese nt Ex ecutive 1 Commi ssioner of HH S C an d I n s p ector Gene ral for the OI G. The curre nt holders of those office s have been automatically substitut ed as appellee s pursuant to Rule 7.2 of the Texas Rules o f Appellate Proc edure

.deter

mination to rec oup overpa y ment or debt from Medicaid Provider). T h e State filed a plea to 2
the jurisdiction a sserting that all of Shamrock’s c laims were barr ed by sovere ign immunity . After

a hear ing, the trial court g rante d the plea and dismiss ed Shamrock’s case for lack of subject-matter jurisdiction. I n one issue, Shamrock asser ts that the trial court err ed by dismiss ing its reque st for a
writ of mandamus order ing the State to provide Shamrock with an ad m i n istrative hear ing on the

overpa y ment issue. We will affirm.

BACK GR OUND
Statu tory Fram ework for Payment H olds and R ecoupment

of Ov erpayment
HHSC is the state ag ency desig nated to administer the Texas Medica id Prog ram. See
Tex. Gov’ t Code § 531.021(a)

. Throug h its OI G, HHSC is responsible for investiga ting fra ud and
abuse and enfor cing state laws rela ted to the Medica id prog ram. Id. Texas law commands OI G to impose, without prior notice, a “pay ment hold” on Medica id reimburse ments to a Medica id provider upon the deter

mination of the exist ence of a cre dible alleg ation of fraud by the provider

under the

state Medica id prog ram. Id. § 531.102(g ). A Medica id provider subject to such a hold may reque st

an expedited administrative h ea ri ng befor e the State Offic e of Administrative Hea ring s (SOAH)

reg arding t h e h old. Id. § 531.102(g )(3)

. The provider must reque st an expedited administrative
hear ing not late r than the 30th da y afte r the da te the provide r re ceive s notice fr om the OI G. Id.

Certain re levant provisions of Te x as Gove rnment Code cha pter 531, subcha

pter C, have 2 been amended wi t h an ef fe ctive date of S eptember 1, 2015. See Act of May 30, 2015, 84th L eg ., R.S., ch. 945, 2015 Tex. Ge n. L aws 3304-16. All citations in this opinion are to the version of the statute in eff

ect a t the rele vant time period.
2Texas law also provides that the OI G may seek to rec over from a Medica id provider

an overpa y ment identified in a fra

ud or abuse investiga

tion. Id. § 531.120. Upon rec eipt of written
notice of the OI G’s deter

mination to rec over an overpa y ment, a provider must reque st an appea l of
that deter mination not later than the 15th day afte r rec eipt of such written notice. Id. § 531.1201(a) (“A provider must reque st an appea l under this section not later than the 15th day afte r the provider
is notified that the commission or the commission’s office of inspector g ener al will seek to rec over

an over pay ment or debt fr om the provider.” ). Section 531.1201 fur ther provide s:

On rec eipt of a timely written reque st by a provider who is the subject of a re co u p m ent of overpa

y ment or rec oupment of debt arising out of a fra ud or abuse investiga tion, the [OI G] shall file a docke ting reque st w ith [SOAH] or [t he HHSC]
a p p e a ls d iv is io n , a s r e q

u e s te d b y th e p r o v id e r , f

o r a n a d mi n is tr a ti v e h e a r in g r e g a r d in g the proposed rec oupment amount and an y associated damag es or penalties. The [OI G] shall file the docketing request under this section not later than the 60th day afte r the date of the provider’ s reque st for an administrative hear ing or not later than the 60th day

afte r the c ompletion of the informal re solution process, if applica ble.

Id. The HHSC promulg ated administrative rules setting forth the require d contents of both the O I G’s
notice that it will seek an overpa y ment and the provider’ s reque st for a hear ing. See 1 Tex. Admin.
Code § 371.1711 (Tex. Hea lth & Hu m an Servs. Comm’n, Recoupment of Over pay ments and Debts). At the time period rele vant to the events d es cr i b ed in this appea l, section 371.1711(c)

3 provided that the O I G’s “f inal notice” of

overpa y ment and notice of

rec oupment of debt include :

(A) a descr iption of th e re co upment, including the amount of the identified final overpa y ment or debt;

Citations to administrative rules in this opinion a re to the version in e ffe ct at the rele vant 3 time period.
3(B ) the ba sis of the rec oupment;

(C) the duration of the rec oupment; (D) the require ments of the per son for re pay ment of the ove rpay

ment or debt; and (E) a statement of the person’ s rig ht to reque st a formal administrative appea l hear ing reg arding the re coupment.

Id. § 371.1711(c)

. Wit h reg ard to the provider’ s reque st for an administrative appea l, the rule stated
that “OI G must rec eive the written reque st for an appea l no later than the 15th cale ndar day afte r
the date the person rec eives fi nal notice.” Id. The rule also provided that “a person may reque st

an administrative appe al hear ing afte r rec eipt of a final notice of rec oupment in acc ordanc e
with § 371.1615 of this subchapte r (re lating to Appea ls).” Id. § 371.1711(d). At the rele vant time period, Rule 371.1615 re quired that the O I G “must rec eive a written request for an administrative
contested case no later than the 15th day afte r the date the per s o n rec eives the final notice

. . . .”
Id. § 371.1615(a)

. The rule further require d that a written reque st for an ad m i n istrative contested
hear ing must:

(1) be sent by

cer tified mail to the addre ss specified in the notice letter; (2) arr ive at the addre ss specifie d in the final notice of exclusion no later than 15 day s afte r re ceipt by

the per son of the notice; (3) include a statement as to the specific issues, finding , and/or leg al authority in the notice letter

with which the per son disag ree s; (4) state the basis for the person’ s contention that the specific issues or finding s and conclusions of OI G ar e incor rec t; and

4(5) be signe d by the person or an attorney for the person. No othe r per son or party

may reque st an administrative contested case hear ing for or on behalf of the subject of the sanc tion.

Id. § 371.1615(b). Thus, the administrative rules in e ffe ct at the re levant time per iod refle cted the
HHSC’s interpre tation of the statutory scheme to contemplate th at t h e require d “re quest” include

cer tain specific information, be sent to the OI G by cer ti fi ed mail, and be made in response to the

contents of the “fina l noti ce ” s en t by the OI G informing the provider of, among other things, the
amount of the “ identified final ove rpay ment” and the basis for se eking to rec oup that amount. 4

Background F

acts
On J anuar

y 20, 2013, Shamrock rec eived notice from OI G of a pay ment hold on its
Medica id reimburse ments. Shamrock made a written reque st for “an expedited informal revie w 5

an d an ex pedited adminis trative contested case hearing ” on the pay ment hold. The pay

ment h o l d
contested case was dockete d at SOAH on Fe bruar y 19, 2013. On September 17, 2013, counsel for
OI G sent an email to Shamr ock’s counsel stating: “He re is what I propose. We se nd y ou the final
notice of overpa

y ment and we set the overpa y ment case at SOAH, which won’t have a hear ing date
until Spring 2014, then we now [si c] can consolidate both case [s] .” Shamrock’s counsel replied by 6

Shamrock ha s not challeng ed the va lidity of any of the re fer ence d rules. 4
This chronolog y is derive d from SOAH Orde r No. 11 in the dockete d pay ment hold case
. 5 I n its brief, Shamrock states that this order “sets out the undisputed fa ctual and proce dural hist ory of this case ,” and that it “believe s the SOAH Orde r contains all of the fac ts nece ssary to dispose of this appeal.”
The OI G had sent Shamrock a letter titled “Notice of Potential Over pay ment” in Fe bruar

y 6 2013. Thus, Shamrock was awa re that the OI G was investiga ting whether it would seek to rec over an over pay ment.
5email on October 4, informing OI G that he had discussed OI G’s proposal to consolidate the pay ment
hold and overpa

y ment issues for a s i n g le hear ing and stating: “L et’s g o ahea d with the notice of

overpa y ment, set it at SOAH, and consolidate both case s. L et me know when y ou rec eive this email

an d i f I n ee d to do any

thing.” Counsel for OI G replied by email on October 7 and st ated: “I wi l l
chec k with SOAH to see whether they want us to docket a separ ate case then consolidate or just file
the over pay ment case in the same c ase number as the pay ment hold ( my pref

ere nce)

. I believe we
could be rea dy for a hear ing on the overpa y m en t i s s u e i n about 90 day s.” That day counsel for
Shamrock re sponded with an e mail stating that he “may need mor e than 90 da

y s for the he aring .”
On October 9 , co unsel for OI G filed a status repor t in the pay

ment hold contested

case at SOAH stating :

I n addition to the pay

ment hold, [OI G] is seeking rec o u p m ent of pay ments, which HHSC-OI G alleg es [S hamroc k] was not entitled to rec eive. [OI G’s] authority to r e c o u p t h o s e o v e r p a y me n ts is c o d if

ie d u n d e r
. . . T e xa s G o v e r

n me n t Co d e Ch a

p te r 5 3 1 ; Chapters 32 and 36 of the Texas Human Resource s Code; and Texas Administrative Code Chapter 371, Subcha pter G.
Counsels for [OI G and Shamrock] have ag ree d to consolidate both the pay ment hold
a n d th e o v e r

p a y me n t in to o n e p r o c e e d in g in th e in te r e s t o f ju d ic ia l e c o n o my
. St a r ti n g September 1, 2013, Petitioners have the option t o h ave their overpa y ment hear ing adjudicate d in either Hea lth a nd Human Service s Commi ssion Appea ls Division or the State Off

ice of Administrative hear ings. Shamroc k has opted to proc eed to the overpa y ment h earing there at SOAH. At this point, without the court’s objection, HHSC-OI G would like to simply file an amende d plead i n g ref lecting the consolidated issues.

At the parties’ reque st, SOAH set a prehe aring confe renc e for October 28, 201 3 t o co nsider how
to pr ocee d with disc overy perta ining to “ the overpa y ment issues in lig ht of the fa ct that the parties
have ag ree d to consolidate the pay ment hold and overpa

y ment issues into one proce eding .” At the

6prehe aring confe renc e the parties repr esente d to SOAH t h at beca use the pay

ment hold and

overpa y ment issues wer e based on the same fac ts, consolidation would save time and expense. The parties then ag ree d to continue the contested case hear ing from November 5-7, 2013 to five day s in

Marc h 2014.
Shamrock rec eived a “ F in a l N o ti c e o f O v e r p a y me n t” from OI G on Dec ember 2, 2013.
The notice stat ed t h at OIG had deter mined that Shamrock had rec eived an overpa y ment in the

amount of $1,611,709.00 for the time period from Fe bruar y 1, 2007 throug h November 30, 2011.
The notice stated: “To appeal thi s final sanc tion, y ou must file a written re quest for a ppeal whic h

must be rece ived by HHSC-OI G at the foll owing addre ss, no later than the 15th day afte r the da te
of re ceipt of this notice.” The notice also included the f ollowing:

The letter reque sting an appea l hear ing must contain a statement as to the specific issues, findings, a

nd/or leg al authority

in the notice letter with which y ou disag ree , and the basis for y our contention that the specific issues or finding s and conclusions
are incorre ct. The reque st for a formal administrative appea l must be signe d by y ou or y our attorne y
. THIS SANCTION WILL BEC O ME F INAL AND UNAP P EALABLE UP ON THE EXP IRATION OF 15 CALENDAR DAYS AF TER RECEI PT O F T HE NOTICE OF F INAL SANCTION IF NO TIMELY REQUEST F OR AP P EAL HAS BE EN RECEIVED BY HHS C-OIG
.

Shamrock filed a reque st for an admini s t rative appea l of the “F inal Notice of Over pay ment” on
Ja n u a r y 2 , 2 0 1 4 , w e ll o u ts id e th e 1 5

- d a y ti me p e r io d f

o r r e q u e s ti n g a n a p p e a l u n d e r T e xa s G o v e r

n me n t
Code section 531.1201(a)

. The next day , OI G filed a motion to dismiss the pay ment hold case that
it had dockete d at SOAH in Fe bruar y 2013. T he motion stated: “HHSC-OI G is withdrawing its

Fe bruar y 26, 2013, Complaint and Notice of Hea ring filed with the State Offic e of Administrative

7Hea

ri n gs.” OI G explained that beca use Shamrock did not timely appea l the “F inal Notice of
O v e r p a y me n t, ” th e p a

y me n t h o ld is s u e w a s mo o t. I n it s r e s p o n s e to th e mo ti o n to d is mi s s , Sh a mr o c k

asser ted t hat t he parties had agr eed that the pay ment hold hear ing would b e co nsolidated with the

o v er p ay ment hear ing and that their ag ree ment was verifie d by the parties at the Octo b er 2 8 prehe aring confe renc e. OI G re sponded that Shamrock ha d failed to timely make a written reque st
for an appea l of the “F inal Notice of Over pay ment” as require d by statute in order to have a rig ht to
an administrative a

ppeal he aring . OI G ar g ued that while the pa rties had a g ree d that consolidating
the pay ment hold and overpa

y ment issues in one hear ing was prac tical, any such ag ree ment did not
relieve Shamrock of its obliga tion u n d er section 531.1201(a) to make a timely written request for

an ap p eal. OI G maintained that, beca use Shamrock did not timely reque st an appea l, the “F i n al
Notice of Over pay ment” had be come f

inal and unappe alable.
After orig inally deny ing the motion to dismiss , the AL J ultimately g rante d it, stating
in its order:

Ba sed on the fac ts listed in t he chronolog y , the AL J rec og nizes that OI G asked Shamrock to consolidate the pay ment hold and rec oupment i s s u es, repr esente d to SOAH that the parties had ag ree d to c onsolidate both issues into one proce eding in the intere st of judicial economy , repr esente d that it pref err ed to amend its pay

ment hold pleading without g etting another docket number, and asked for a continuance
s o t h at b oth issues could be hear d toge ther. Some months later, OI G sent formal notice of the rec oupment to Shamrock. Shamrock did not file an appea l beca use it had relied on OI G’s commitment to amend its pleading s and t h e ALJ had alre ady set the hea

ring on both issues.

H o w e v e r, even though Shamrock relied on OI G’s repr esenta tions to its detriment, the AL J cannot procee d to a hearing

. OI G has withdra wn the pay

ment hold issue, and it has neither separ ately ref err e d a n o v e r p a y me n t claim to SOAH reg arding Shamrock
nor amende d its plea dings to a ssert an ove rpay ment claim. The AL J does not ha ve authority to require OI G to amend its pleading to asser t an overpa

y ment claim in this

8cause
. As a result, there is no pending case for which the AL J could rec eive evidenc e

and issue a Proposal for Dec ision. There fore , t h e AL J dismiss es this case from SOAH’s docke t pursuant to 1 TAC § 155.503(c) (1).

Shamrock later filed the proce eding s underly ing this appea l in which it soug ht various decla rations
under the Uniform Declar atory J udg ments Act, challeng ed the constitutionalit y of certain st atutes
and ag ency rules, and soug ht mandamus relief

. The State filed a plea to the jurisdiction, which the
trial court g rante d afte r a hear ing. Shamrock then perf ecte d this appea l arg uing in one issue that the
trial court err ed by dismiss ing its reque st for a writ of mandamus ord er i n g t he OI G to docket the

overpa y ment issue at SOAH and g o forwa rd with a c ontested ca se hea ring on that issue. 7

DISCUSSIO N
“A writ of mandamus will issue to c ompel 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.” An der s o n v. City of Seve n

The specific mandamus relief Shamrock reque sted in its petition in the trial court was that 7 the court order the Administrat i v e L aw J u d ge (AL J ) to hold a hear ing on the overpa y ment issue. Shamrock alleged that “[b] eca use there is a valid ‘Rule 11’ ag ree ment, the AL J was duty -bound to enfor ce i t s p ro v i s ions. A writ of mandamus should issue if she fails to do so.” I n this Court, howeve r, Shamrock asser ts that the trial court should have issued a writ of mandamus order ing the OI G to docket the overpa y ment claim at the State Offic e of Administrative He aring s (SOAH). A t the hear ing on the plea to the jurisdiction, Shamrock arg ued principally that the OI G was bound to comply with an al l eged “Rule 11” ag ree ment in which, Shamrock contends, the OI G ag ree d to amend its petition in the dockete d pay ment hold case to include its claim to rec over an overpa y ment of Medica id reimburse ments. Shamrock stated: “Sh am ro ck s eeks, Your Honor, a mandamus to enfor ce its Rule 11 Ag ree ment to consolidate the pay ment hold and overpa

y ment case s betwee n the OI G and Shamrock, and for the OI G to docket the case it wr ong fully dismiss ed.” We w ill addr ess the appe llate issue as fra

med by Shamrock in its brief to this Court; that is, whether the tria l court
err ed by n o t i ssuing a writ of mandamus direc ting that the OI G docket the overpa y ment case at SOAH and ther eby

provide Shamroc k with a hea ring on the over

pay ment issue.
9Points , 806 S.W .2d 791, 793 (Tex. 1991); see also Community Health Choice, Inc. v. Hawkins ,

3 2 8 S. W. 3 d 1 0 , 1 3 ( T e x. A p p
. — Au s ti n 2 0 1 0 , p e t. d e n ie d )

. I f a n a c ti o n in v o lv e s p e r s o n a l d e li b e r a

ti o n , d e c is io n , a

n d ju d g me n t, it is d is c r e ti o n a r y ; a c ti o n s th a

t r e q u ir e o b e d ie n c e to o r d e r s o r th e p e r f o r ma n c e
of a duty to which the actor has no choice are minist eria l. C i t y of Lancaster v. Chambers , 883 S.W .2d 650, 654 (Tex. 1994).

Suits to require state officials to comply with statutory or constit utional provisions
are not prohibited by sovere ign immunit y , even if a decla ration to that eff

ect compels the pay

ment of money
. To fall within this ultra vires exception, a suit must not complain of a g overnme nt office r’s exercise of discretion, but rathe r must alleg e, and ultimately prove, that the o ff i cer acte d without leg al authority or failed to perf orm a pure ly

minist eria l act.

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

The dispositi ve issue in this appeal i s wh et h er the OI G had a minist eria l duty to
docket the overpa

y ment case at issue at SOAH and proce ed to a contested case hear ing. The parties

ag ree that such a minist er i al d uty arises, under cer tain conditions, from Texas Gover nment Code section 531.1201(a ), which pr ovides:

O n r e c e ip t o f a ti me ly w r it te n r e q u e s t b y a p r o v id e r w h o is th e s u b je c t o f a r e c o u

p me n t of overpa y ment or rec oupment of debt arising out of a fra ud or abuse investiga tion, the office of inspector g ener al shall file a docketing reque st with the State Offic e of Administrative Hea

ring s or the Hea lth and Human Service s Commi ssion appea ls division, as reque sted by the p ro vider, for an administrative hear ing reg arding the proposed r ecoupme nt amount and any associate d damag es or pe nalties.

Tex. Gov’t Code § 531.1201(a) (empha sis added) ; see also 1 Tex. Admin. Code §§ 371.1711 (appe al
of dete rmination to rec oup overpa y ment or debt), 371.1615 (conte nts of written notice of appea l).

10The State arg ues that b ec au se Shamrock failed to make a timely written reque st for an appea l, a

minist eria l duty to file a docketing reque st with either SOAH or the HHSC appea ls division did not
arise. We ag ree
. Shamrock did not file a written reque st including the co n t en t re q u i red by Rule
371.1615 until J anuar

y 2, 2014, thirty -one day s afte r rec eiving the “F inal Notice of Over pay ment.”
On appea l, Shamrock arg ues that the emails it sent counsel for OI G on October 4 and
October 7, along with the October 9 status repor t filed at SOAH by the OI G, constituted the written

reque st for an appea l require d by section 531.1201(a) and Rules 371.1711 and 371.1615. Acc ording

t o Shamrock, thi s email ex chang e occurre d within 15 day s of “the OI G’s 10/2/ 13 e-ma iled n o t i ce
of an intent to seek rec overy of an overpa y ment.” The only email sent by OI G on October 2 was an
email to Shamrock’s c ounsel that stated:

Good m o rn i n g [ counsel] , I wanted to rea ch out to y ou and see if y ou wer e able to deter mine wh et h er y our client would pref er to g o direc tly to the overpa y ment hear ing. I also wanted to let y ou know that I am leaving OI G on the [si c] October 11, 2013. Steve J ohnson, who I have cc’ d here , is the litigation team leade r here and will b e as s i gning this case to another attorney asap. Thank y ou and I enjoy ed worki n g with y ou on this case.

This email cannot be rea d to constitute the OI G’s statutory “fina l notice” of intent to seek rec overy
of an overpa

y ment that trigger ed t h e 15-day time period for reque sting an appea l under section 531.1201(a)

. This email wholly fails to c omply with Rule 371.1711(c) (2), which require s that the
“fina l notice” include both the amount of the rec oupment and the basis for the rec oupment. 1 Tex.
Admin. Code § 371.1711(c)

. Additionally , Shamrock’s responsive October 7 and October 9 emails
fail to comply with the Rule 371.1615 content require ments of a written reque st for an administrative
contested case hear ing at SOAH. Id. § 371.1615. I nstead, this email exchang e is more rea sonably

11interpre ted as an informal discussion of, and ag ree ment reg arding , the appropr iate way to handle an

appea l provided Shamrock invoked its rig ht to one by timely providing written notice that it desired

to appea l the final overpa

y ment amount once OI G had sent Shamrock its final notice. I n any event,
these c omments from OI G and Shamroc k are not of the nature contemplated by Rule 371.1615.
Shamrock next arg ues that if the 15-day period for reque sting a hear ing did not beg in
until Shamrock rece ived t he “Final Notice of Overp aym en t ” on Dec ember 2, Texas Rule of C ivil
Procedur e 306c and Texas Rule of Appellate Procedur e 27.2 apply to rende r its prema ture reque sts
for a hear ing timely

. See Tex. R. App. P. 27.2 (“I n a civil case , a prema turely filed notice of appea l
is eff ective and deeme d filed on the day of, but afte r, the event that beg ins the period for perf ecting the appe al.”) ; Tex. R . Civ. P. 306c (every motion for new t rial shall be deemed to have be en filed

on date of but subsequent to signing of judgme nt motion assails). As an initial matter, we have held
that the emails Shamrock relies on, even if timely , do not constitute a reque st for a hear ing meeting

t h e re q u irements of Rule 371.1615. Moreove r, the statutory scheme and administrative rules

contem p l at e t h at t he reque st for an administrative hear ing be in response to a “fina l notice” that
informs the provi der of the final amount of the overpa y ment and the basis for rec ouping the

overpa y ment. The administrative rules evidenc e an intent that the reque st for an adminis t rative
hear ing not pr ece de, but ra ther follow, r ece ipt of the OI G’s “f inal notice.” 8

We are also unpersua ded by Shamrock’s attempt to analog ize this case to El Paso Electric 8 Company v. Public Utility C o mm i s s i o n , 715 S.W .2d 734 (Tex. App.—Austin 1986, writ ref ’d n.r.e.)

. I n that case we held that, under “the specific fac ts a nd circ umstances” of the case , a second motion for rehe aring filed afte r the Public Utility C o m m i s s i o n orally pronounce d its decision on the first motion for rehe aring but befor e it issued its written order , though prema turely filed, should be deeme d filed on the date of the ag ency ’s order

. El Paso Electric , 715 S.W .2d at 738. The fac ts o f t h e prese nt case are not analog ous to those in El Paso Electric. I n El Paso Electric t h e C o u rt
12I n the alterna tive, Shamrock contends that t h e trial court should have g rante d

mandamus relief and ordered the OI G to docket the overpa y ment case beca

use the parties had a
“Rule 11 Ag ree ment” or “Rule 155.415 Agr ee m ent” that cre ated a minist eria l duty to do so. See
Tex. R. C iv. P. 11 (“Unless otherw ise provided by these rules, no ag ree ment betwee n attorney s or parties touching any suit pe nding will be enfor ced unless it be in writing , signe d and filed with the

paper s as p ar t o f t h e record, or unless it be made in open court and enter ed of rec ord.”) ; 1 Tex.
Admin. Code § 155.415 (State Offic e of Admin. Hea ring s, Party Ag ree ments). Administrative rule 155.415 provides that:

Unless otherwise provided in this chapte r, no ag ree ment betwee n attorney s or parties rega rding a contested case pending befor e SOAH will be enfor ced unless it is i n

analog ized a motion for rehe aring of a final ag ency order to a motion for new trial afte r a trial court has rende red judgme nt. At issue here , howeve r, is the notice require d to trig g er the rig ht to a contested- case hear ing befor e an AL J

. Also, unlike in El Paso Electric , there is no indication here that the L eg islature borrowe d from the Texas Rules of Civil Procedur e when es t ab l i shing the requirem en t t h at a Medica id provider reque st an appea l of the OI G’s proposed rec oupment of an overpa y ment. Moreove r, in El Paso Electric , the Court relied heavily on the fa ct that El Paso Electric Company had filed a motion for rehe aring that completely apprised the ag ency of its alleg ed
err or such that the motion acc omplished its intended eff ect, which was to allow th e age n cy an o p p o r tu n it y to c o r r e c t th e a ll e g e d e r

r o r o r d e f e n d it

. Co n s e q

u e n tl y , th e e s s e n

ti a l p u r p o s e o f th e mo ti o n for r ehea ring had bee n satisfied. I n the prese nt case , the emails, which prec eded the “F inal Notice of Over pay ment,” do not purport to be, and as a prac tical matter could not constitute, a reque st for an appea l responsive to the contents of a

“fina l notice” of

overpa y ment. I n fac t, the rec ord re flec ts that Shamrock itself did not, until afte r SOAH dismiss ed the dockete d pay ment hold case , consi d er the ref ere nced emails to be the written notice require d by section 531.1201(a)

. Rather , o n J an u ary 4, 2014, Shamrock’s counsel sent SOAH and HHSC-OI G a letter, which stated: “Pursuant to 1 Tex. Admin. Code § 371.1615(

d) , please let this letter serve as our second formal written reque st for an appea l of this matter.” (Emphasis in orig inal.). Only afte r the dockete d pay ment hold case was dismiss ed did Shamrock asse rt that the October 4 and October 7 emails and the October 9 status re port filed by the OI G constituted the notice r equire d by section 531.1201(a ).

13writing, s i gn ed, and filed with SOAH or enter ed on the rec ord at the hear ing or

prehe aring confe renc e.

1 Tex. Admin. Code § 155.415. Acc ording to Shamrock, the parties had an ag ree ment that the OI G
would amend it s pleading s to add the overpa y ment issue, and the AL J had a minist eria l duty to

e n f o r c e th a t a g r e e me n t. Sh a

mr o c k a r g u e s th a t th e O I G h a d th e s a

me mi n is te r ia l d

u ty b e c a u s e “ SO A H judge s opera te only at the reque st of the ag ency that invokes them.” Citi ng no authority , Shamrock
contends that “ the OI G has a minist eria l duty to abide by the promi ses m ade to Shamrock and the SOAH judg e.” Assuming that t h e p ar t i es in fac t had an ag ree ment that met the require ments of
Rule 155.415, the exis tence of such an ag ree ment does not cre ate a minist eria l duty that the ag ency perf orm the ag ree d upon action. Rather, Rule 155.415 simply states that no ag ree ment betwee n the parties “will be enfor ced” unless it is in writing , signe d by the parties, and filed with SOAH. Id.
Whil e s u ch an ag ree ment might cre ate a contra ctual obliga tion, the ag ency does not have a
minist eria l duty to perf

orm the action ag ree d to. The only minist eria l duty the OI G had with respe ct

to the overpay

ment case was to docket a contested case at SOAH upon timely rec eipt of a written

r e q u e s t b y Sh a

mr o c k

. A s p r e v io u s ly d is c u s s e d , Sh a mr o c k f a il e d to ma

k e s u c h a ti me ly w r it

te n r e q u e s t. Finally , Shamrock asser

ts that mandam

u s w a s a n a p p r o p r ia te r e me d y b e c a u s e th e OI G

co u l d not deprive Shamrock of its rig ht to an overpa y ment hear ing by simply withdrawing i t s
pay ment hold claim. Rely ing on an analog y to a non-suit under the Texas Rules of Civil Procedur e,
Shamrock asser

ts that the OI G’s withdrawa l of its pay ment hold could not aff

ect S h amroc k’s “pending claims for aff

irmative relief

.” See Texas Mut. Ins. v. Ledbetter , 251 S.W .3d 31, 37 (Tex.

142008) (Texas Rule of Civil Procedur e 162 prohibits d i s m i s s al b y nonsuit if eff ect would be to

p re j u d i ce any pending claim for aff irmative relief). Assuming this analog y is apt, t he affirmativ e
relief Shamrock claims to be entitl ed to was the return of the m oney subje ct t o t h e p aym ent hold. Any entitlement to that relief disappea red, howeve r, when Shamrock failed to make a timely written

reque st for a he aring once it re ceive d notice that OI G intended to re coup an ove rpay ment. At that
time the claim for rec oupment beca me final and cre ated a

debt in favor

of the State of T exas. See
1 Tex. Admin. Code § 371.1617(b) (Tex. Hea lth & Human Servs. Comm’n, Finality & Collections) (ef fec t of final sanc tion resulting in re coupment is to cre ate f inal debt in favor

of State). The OI G

was then permitted to use the funds acc umulated during the pay ment hold to offse t the overpa y ment.
S ee id. § 371.1709(e) (2) (af ter pay ment hold is terminated for any rea son OI G may reta in fun d s

acc umulated during pay

ment hold to offse t any overpa y ment). Although Shamrock complains that

9 “[b] y withdrawing its pay

ment hold claim but keepin g th e mo ney , the OI G preve nted Shamrock from
get t i n g an y relief,” the rea son Shamrock did not rec eive a hear ing on the overpa y ment case i s
beca use it failed to comply with its statutory obli gation to make a timely written reque st for an
appea l once it re ceive d the OI G’s wr itten notice that it would seek to re cover an over pay ment.

Citi ng this Court’s opinion in Janek v. Harlingen Family Dentistry, P.C. , Shamrock also 9
asser ts that the relief it was entitled to in the pay ment hold case was the return of the reta ined funds, and that the OI G had an obliga tion to do so. 451 S.W .3d 97, 99 (Tex. App.—Austin 2014, no pet.). I n Janek , howeve r, we conclude d that the funds wer e require d to be returne d beca use, afte r a hear ing
on t h e merits, the AL J found that the OI G failed to make a prima fac ie showing that there was rele vant, cre dible, or reliable evidenc e of fra ud authorizing it to impose a pay ment hold in the first place

. See id. at 103 (“[U] n d er both the Texas statute and the applicable fede ral reg ulation, any pay ment hold was temporar

y and had to end if cre dible evidenc e of fra ud was found to be lacking .”). Her e, the OI G withdrew the pay ment hold once the overp aym en t cl ai m beca me final. The Janek holding ha s no application to the fa cts and c ircumstance s of this case.
15Shamrock has not established that the HHSC or OI G had a minist eria l duty to docket

the overpa

y ment case at SOAH, nor has it demonstrated the failure of a state officia l to perf orm
any other minist er i al duty

. Shamrock’s petition for a writ of mandamus was there fore barr ed by

s o v ere ign immunit y , and the trial court proper ly g rante d the State’s plea to the jurisdiction. W e

overr ule Shamrock’ s sole appellate issue.

CONCLUSION Having overr

uled S h am rock’s appellate issue, we aff irm the trial court’s order

g ranting the plea to the jur isdiction.

__________________________________________ Scott K. Field, Just ice

Be fore Chief J ustice Rose, Jus tices Pemberton a nd Field
Affir med Filed: Aug ust 10, 2016

16