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Allibone v. Robinson

Court of Appeals of Texas, Third District, Austin

June 29, 2017

George Allibone M.D., Appellant
v.
Mari Robinson J.D., in her Official Capacity as Executive Director of the Texas Medical Board; Juanita Garner, Investigator of the Texas Medical Board; and the Texas Medical Board, Appellees

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT NO. D-1-GN-16-002967, HONORABLE DARLENE BYRNE, JUDGE PRESIDING

          Before Justices Puryear, Pemberton, and Goodwin

          MEMORANDUM OPINION AND ORDER

          PER CURIAM

         Appellant 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.

          Background

         In the 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.[1] 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."[2] 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.

         Appellees 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).

         On June 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.

         Standard of Review and Applicable Law

         Texas 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 judgment.

See Tex. R. App. P. 24.2(a)(5).

         We 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 ...


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