Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
NO. D-1-GN-16-002967, HONORABLE DARLENE BYRNE, JUDGE
Justices Puryear, Pemberton, and Goodwin
MEMORANDUM OPINION AND ORDER
George Allibone M.D. has filed a motion pursuant to Texas
Rule of Appellate Procedure 24.4(a) seeking this Court's
review and reversal of the trial court's order denying
his motion to supersede or stay enforcement of the trial
court's order and judgment that is the subject of the
underlying appeal. See Tex. R. App. P. 24.4(a)
(authorizing appellate review of trial court's ruling on
rule 24 motion seeking to suspend enforcement of judgment).
For the following reasons, we reverse the trial court's
order denying Allibone's rule 24 motion and remand the
case to the trial court for further proceedings consistent
with this opinion.
underlying proceeding, Allibone sought declaratory relief and
a protective order from a subpoena duces tecum issued by the
Texas Medical Board. The subpoena required Allibone to
produce "all medical and billing records" of two of
his patients. The Board subpoenaed the records as part of its
administrative investigation related to complaints that had
been made against Allibone. In its order and judgment signed
on May 15, 2017, the trial court denied Allibone's
petition for declaratory judgment and a protective order and
ordered appellant to "fully comply with all subpoenas at
issue in this case no later than 5:00 p.m., May 30,
2017." Allibone thereafter filed a notice of
appeal from the trial court's May 15 order and judgment
and a motion with the trial court seeking to stay or
supersede enforcement of the May 15 order and judgment
pursuant to rule 24 during the pendency of the appeal.
See Tex. R. App. P. 24.
filed a response to Allibone's rule 24 motion opposing
the motion. They argued that harm to the public would occur
if the trial court granted the motion and allowed enforcement
to be stayed because the investigation related to multiple
complaints against Allibone "[had] been delayed far too
long" and Allibone would be allowed to continue his
practice "during which time TMB would be unable to
protect patient safety." Appellees focused on evidence
that the trial court heard and reviewed in denying
Allibone's petition for declaratory judgment and
protective order, including the trial court's review of
the pending complaints and the patients' records
in camera, and due process protections that
would be afforded to Allibone if the Board's staff
ultimately made a finding of a violation. See Rea v.
State, 297 S.W.3d 379, 384-85 (Tex. App.-Austin 2009, no
pet.) (generally describing administrative process for
disciplinary action by Texas Medical Board).
9, 2017, the trial court denied Allibone's rule 24 motion
without stating its reasons for doing so, and appellant then
filed his motion pursuant to rule 24.4 seeking this
Court's review of the trial court's order denying his
motion. Appellees have filed a response opposing his motion.
of Review and Applicable Law
Rule of Appellate Procedure 24 sets out the procedures for
suspending the enforcement of judgments pending appeal in
civil cases. Rule 24.2 addresses the amount of bond, deposit,
or security required to suspend enforcement of a judgment,
and subsection (a)(5) specifically sets forth the relevant
considerations for the trial court when the judgment is in
favor of a governmental entity in its governmental capacity
and the governmental entity has no pecuniary interest. In
that situation, the trial court is instructed as follows:
When a judgment in favor of a governmental entity in its
governmental capacity is one in which the entity has no
pecuniary interest, the trial court must determine whether to
suspend enforcement, with or without security, taking into
account the harm that is likely to result to the judgment
debtor if enforcement is not suspended, and the harm that is
likely to result to others if enforcement is suspended. The
appellate court may review the trial court's
determination and suspend enforcement of the judgment, with
or without security, or refuse to suspend the judgment. If
security is required, recovery is limited to the governmental
entity's actual damages resulting from suspension of the
See Tex. R. App. P. 24.2(a)(5).
review trial court rulings pursuant to Texas Rule of
Appellate Procedure 24.4 under an abuse of discretion
standard. See EnviroPower, L.L.C. v. Bear, Stearns &
Co., 265 S.W.3d 1, 2 (Tex. App.-Houston [1st Dist.]
2008, pet. denied); see also Devine v. Devine, No.
07-15-00126-CV, 2015 Tex.App. LEXIS 5173, at *4-5 (Tex.
App.-Amarillo May 20, 2015, order). A trial court's
discretion, however, "does not extend to denying a party
any appeal whatsoever." See In re Dallas Area Rapid
Transit, 967 S.W.2d 358, 359-60 (Tex. 1998) (addressing
predecessor rule to rule 24.2 and observing in the context of
the Texas Public Information Act: "To allow a trial
court discretion to refuse to supersede a judgment requiring
production of information under the Act is to give that court
the power to deny the governmental body any effective appeal,
for once the requested information is produced, an appeal is
moot. The rule does not permit such a result.").
"If the trial court's refusal to permit the judgment
to be superseded causes the appeal to become ...