In re M. Brett Cooper, M.D. v. the State of Texas

ACCEPTED 15-25-00101-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 6/12/2025 4:25 PM CHRISTOPHER A. PRINE No. 15-25-00101-CV CLERK In the Court of Appeals 15th AUSTIN, FILED IN COURT OF APPEALS TEXAS for the Fifteenth Judicial District6/12/2025 4:25:36 PM CHRISTOPHER A. PRINE Austin, Texas Clerk

In re M. Brett Cooper, M.D., Relator.

On Writ of Mandamus 493rd Judicial District Court, Collin County STATE’S RESPONSE TO COOPER’S EMERGENCY MOTION TO STAY To the Honorable Fifteenth Court of Appeals: Once again, litigants in this case are trying to micromanage the discovery rulings of a district court judge by appealing even the smallest of rulings to this Court. This self-created “emergency” stay does not concern sensitive medical records or a party deposition—rather, it concerns the agreed deposition of a third party that the district court ordered weeks ago. But rather than move quickly, Cooper rested on his laurels, then waited until less than a week prior to the deposition to mandamus this run-of- the-mill discovery order and seek an emergency stay of all “merits-based discovery,” despite having recently sought merits-based discovery himself and despite the or- dered deposition involving jurisdictional topics.

This stay request is unjustified for several reasons. First, Cooper will lose on the merits of his mandamus because the district court’s order that the third-party deposition would go forward did not “clearly abuse[] its discretion.” In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462 (Tex. 2008). “Courts always have jurisdiction to determine their own jurisdiction,” Harrell v. State, 286 S.W.3d 315, 317 (Tex. 2009) (quoting Hous. Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d 151, 158 (Tex. 2007)) Cooper’s stay motion fails to mention that all the arguments raised in his plea to the jurisdiction were already rejected by the district court back in February of this year. When Cooper first raised these arguments (albeit raised via the wrong vehicle, a 91a motion to dismiss), the district court denied his jurisdictional argu- ments based on the pleadings and ruling that his jurisdictional arguments based on the facts required additional discovery to resolve. The third-party deposition at issue in this mandamus filing is part of that ordered jurisdictional discovery. And while the district court acknowledged that the deposition would also involve merits-related questions, the district court permitted it to go forward because there is a high degree of overlap between the jurisdictional and merits issues in this case. That is not con- troversial. Tex. S. Univ. v. Young, 682 S.W.3d 886, 888–89 (Tex. 2023) (Young, J., concurring) (noting “there will sometimes—often—be some overlap with the mer- its” in jurisdictional discovery, and observing that “[o]rdering jurisdictional discov- ery would be a clear abuse of discretion only if it necessarily trespasses so far into the merits that any tether to pending jurisdictional questions was illusory or pre- textual”).

Second, Cooper is incorrect that jurisdictional discovery deprives him of an in- terlocutory appeal. “[T]rial courts considering a plea to the jurisdiction have brought discretion to allow ‘reasonable opportunity for targeted discovery’ and to grant parties more time to gather evidence and prepare for such hearings.” Mission Consol.

Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 642–43 (Tex. 2012) (quoting Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 233 (Tex. 2004)). Jurisdictional dis- covery when needed is a good thing, not an abuse of discretion. Furthermore, Cooper is not entitled to an interlocutory appeal at all, because the State’s claims against him are in his individual capacity. And while a state official sued in his official capacity “can file a plea to the jurisdiction in defense of the official capacity claims against him” under section 51.014(a)(8) of the Civil Practice and Remedies Code, the same state official can only challenge individual capacity claims against him via interlocu- tory appeal after he loses “a motion for summary judgment on official immunity grounds” pursuant to section 51.014(a)(5). Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 845–46 (Tex. 2007).

Third and finally, Cooper’s request to stay “merits-based discovery” is fruitless because the court has not ordered any exclusively merits-based discovery. The only discovery ordered by the court involves jurisdictional issues, some of which also in- volve merits-based issues. But that falls well within the court’s discretion. Because the trial court’s order of the third party deposition has a jurisdictional purpose and falls well within the court’s power to determine its own jurisdiction, a stay should be denied.

BACKGROUND On February 3, 2025, Cooper filed a Rule 91 motion to dismiss the State’s DTPA claim against him based on the Texas Tort Claims Act and sovereign immunity.

MR.49. Cooper argued that as an employee of UTSW, which is a government hospital, he was immune from suit under the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code § 101.106(f) (TTCA), and that because the State should have sued UTSW instead of himself, he was excused from TTCA’s requirement to substitute his employer because his employer had sovereign immunity. MR.51–58. He also ar- gued the State failed to adequately plead its DTPA claim. MR.58.

The State opposed Cooper’s motion. MR.66. The State pointed out several flaws, including that his arguments relied on affirmative defenses outside the plead- ings; that his TTCA claim was based on alleged jurisdictional facts outside the plead- ings that would require significant jurisdictional discovery to determine; and that be- cause UTSW was not a party to the suit, sovereign immunity did not apply. MR.66– 68, 71–76.

On February 28, 2025, after a hearing, the court denied Cooper’s motion. The court expressly held regarding Cooper’s TTCA and sovereign immunity claims: “I think the arguments y’all have raised require the Court to consider evidence. I just think that’s where we’re at. And so while I don’t think they’re properly raised in a 91a context, I am simply denying them as premature because the Court has to con- sider evidence.” MR.206 68:3–11.

The court further encouraged the parties to confer on what types of jurisdic- tional discovery would be appropriate to decide “what the relevant discovery is,” such as “billing records . . . , who actually paid—who received the payment for the treatment, was it UT Southwestern, was it Children’s [a nongovernmental entity],” and other issues. MR.207 69:6–24.

Consistent with this ruling and with the State’s arguments, the State has already sought billing records and other relevant jurisdictional discovery from Cooper, which he has refused to produce. MR.346, 358 (noting that Cooper refused to pro- duce billing records because the term was “vague, ambiguous, and overbroad,” and additionally that they “seek information not related to the claims or defenses in this action”). The State has also noticed a jurisdictional deposition of Cooper, but Cooper has moved to quash. App’x Ex. A.

After refusing to produce any jurisdictional discovery beyond a few self-serving documents, Cooper repackaged his original motion to dismiss claims as a new plea to the jurisdiction, filed April 21, 2025. MR.252. The plea to the jurisdiction raises near-identical arguments to those in the motion to dismiss.

On May 29, 2025, the district court heard Cooper’s plea to the jurisdiction and reiterated its earlier ruling from February 28 “that jurisdictional discovery is needed, and we will be identifying the jurisdictional discovery that will occur within the next days today.” MR.907 11:2–8. The court also repeated its February 28 ruling that Cooper’s “employment agreement standing alone [is not] dispositive of” the juris- dictional issues, MR.910–11 14:24–15:15, and noted a non-exhaustive list of jurisdic- tional discovery still required, including payment records, a jurisdictional deposition of Cooper, a jurisdictional deposition of the two hospitals involved, and other pay- ment and patient information, MR.908–10 12:19–14:12. Indeed, the court noted that because of the improper Dallas County order barring any production by the hospitals in this case, currently on appeal before this Court at 15-25-00023-CV and 15-25- 00039-CV, the court was “hamstrung from deciding the plea [to the jurisdiction] and from deciding many other motions until we get that opinion out of the Fifteenth Court of Appeals.” MR.944 48:8–21. The court further noted that Cooper’s counsel had turned discovery in this case into “one big game,” refusing to respond to dis- covery “served back in January [for which] responses were due well prior to the plea,” then arguing he did not need to respond based on said plea. MR.945–46 50:23–51:15.

Turning to the issue of the third-party patient deposition scheduled for June 17, 2025, the court noted that the deposition “would go to both jurisdiction and the mer- its,” and therefore “order[ed] the deposition to go forward.” MR.955 59:10–15. The court further noted that Cooper himself had “served merits-based discovery” and “did not withdraw [his] merits-based discovery upon the filing of [his] plea,” then did not “withdraw it until the hearing today, when being presented by the issue.”

MR.955 59:16–25.

Two weeks later, on June 11, 2025, Cooper filed a mandamus petition seeking to block this third-party deposition set for June 17 and filed this stay seeking to stay merits-based discovery pending a resolution of his mandamus.

ARGUMENT I. The Trial Court Did Not Abuse its Discretion by Ordering a Jurisdictional Deposition that Involves Merits Issues.

A. District courts have the power to determine their own jurisdiction, including through discovery.

It is uncontroversial that a district court acts well within its discretion when it orders jurisdictional discovery to decide a plea to the jurisdiction. When jurisdictional facts are disputed, “disputed evidence of jurisdictional facts that also implicate the merits of the case may require resolution by the finder of fact.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). “When the consideration of a trial court’s subject matter jurisdiction requires the examination of evidence, the trial court exercises its discretion in deciding whether the jurisdic- tional determination should be made at a preliminary hearing or await a further de- velopment of the case.” Id. at 227. “If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder.” Id. at 227–28.

It is also well-established that jurisdictional discovery may also encompass dis- covery that addresses “the key factual issues related to the claim,” particularly when the defendant seeks some form of sovereign or governmental immunity Texas South- ern, 862 S.W.3d at 888. In Texas Southern, after the Supreme Court of Texas denied a mandamus petition brought by the State raising similar arguments to those brought by Cooper, Justice Young authored a concurrence explaining the denial. After col- lecting cases, he noted that when jurisdictional discovery is ordered, “there will sometimes—often—be some overlap with the merits, especially in ultra vires cases where the waiver of immunity, which implicates jurisdiction, is closely linked to the merits.” Id. at 888–89. He explained that the “scope of jurisdictional discov- ery . . . will vary based on the scope of” the immunity (or immunity waiver) allega- tion. Id. at 889. He noted that while the district court’s order of depositions “could be viewed as overbroad and beyond what is needed to determine the court’s jurisdic- tion, . . . the order was not issued in a vacuum. Everyone knows its jurisdictional purpose. Given that context, we cannot assume that any apparent imprecision or breadth reflects a trial court's intent to ignore jurisdiction and address the merits.

Ordering jurisdictional discovery would be a clear abuse of discretion only if it nec- essarily trespasses so far into the merits that any tether to pending jurisdictional questions was illusory or pretextual.” Id. B. The jurisdictional issues in this case are inextricably intertwined with merits issues.

Given the fact-bound nature of the immunity Cooper claims, the district court has already correctly acknowledged that it would be impossible to complete jurisdic- tional discovery in this suit without at least some overlap with the merits. Cooper claims he is immune from suit under the Texas Tort Claims Act because he works for UT Southwestern, a governmental entity. But to determine whether his alleged conduct—breaking the law to illegally prescribe testosterone to minor females—falls within the scope of the TTCA, Cooper must prove the State’s claims are against an “employee” within the meaning of the TTCA, and that those claims are “based on conduct within the general scope of [his] employment” at UT Southwestern. Tex. Civ. Prac. & Rem. Code § 101.106(f). But an employee does not include “a person who performs tasks the details of which the governmental unit does not have the legal right to control.” Id. § 101.001(2) (defining “Employee”). There is an open question of whether UT Southwestern had the right to control Cooper’s conduct here, especially since it appears that much or all of the alleged illegal conduct in this case took place at Children’s Hospital Dallas (a private hospital).

Furthermore, it is extremely unlikely that Cooper’s illegal acts were within the scope of his employment. Section 101.106(f) of the TTCA is a vicarious liability stat- ute, and as a general rule, employers are not vicariously liable for their employee’s illegal acts. Zarzana v. Ashley, 218 S.W.3d 152, 160 (Tex. App.—Houston [14th Dist.] 2007, pet. struck) (“[E]mployers are generally not liable for serious criminal acts of employees that are unforeseeable considering the employee's duties.”).

Given that Cooper is alleged to have committed flagrant and intentional violations of the law that do not even constitute the practice of medicine, it is unlikely that UT Southwestern could be held liable for his actions unless UT Southwestern was aware of Cooper’s misconduct.

The issues of Cooper’s employment and the degree of control UT Southwestern exercised over him when he provided illegal drugs to minors at Children’s go directly to jurisdiction. But these questions necessarily implicate the merits as well. For ex- ample, if Dr. Cooper were prescribing those drugs as part of a UT Southwestern authorized weaning protocol, that may fall within the scope of UT Southwestern’s control and thus his employment. But if he were acting directly contrary to UT Southwestern’s policies, he would not be acting within the scope of his employment and the TTCA would not apply. Because weaning is also a merits issue—SB 14 has an exception for weaning protocols, see Tex. Health & Safety Code § 161.703(c)— this discussion necessarily involves questions of both jurisdiction and the merits.

C. Because the third party deposition involves jurisdictional questions, the district court did not abuse its discretion in ordering it to go forward on June 17.

The third party deposition Cooper seeks to stay implicates all these issues. This deposition involves a nonparty patient that Cooper gave testosterone as a minor. One of the main areas of questioning will be whether Cooper gave the patient testosterone to wean off an existing gender treatment that was going on before SB 14 went into effect, or whether it was given to actively start or continue to transition the patient’s biological sex in violation of Texas law. Compare Tex. Health & Safety Code § 161.702 (illegal uses of testosterone) with Tex. Health & Safety Code § 161.703 (exceptions). This issue is central to proving whether Cooper acted within the scope of his employment as regards that patient. It therefore falls squarely within the cate- gory of permissible jurisdictional discovery that has “some overlap with the merits” but nevertheless “implicates jurisdiction.” Texas Southern, 682 S.W.3d at 888–89 (Young, J., concurring). The district court’s decision to let the deposition go forward was well within its discretion. See Vernco Constr., Inc. v. Nelson, 460 S.W.3d 145, 149 (Tex. 2015) (“The jurisdictional determination should be made as soon as practica- ble because a court should not proceed with a case over which it has no jurisdiction; however, the court has discretion to defer the decision until the case has been more fully developed.”).

II. Cooper Will Not Be Harmed Because He Is Not Entitled to an Immediate Ruling or an Interlocutory Appeal on His Plea.

Contrary to Cooper’s assertion, he will suffer no harm from the State taking a third party deposition, beyond the ordinary costs incurred by any litigant—including litigants with outstanding pleas to the jurisdiction. The Supreme Court has repeat- edly held that “trial courts considering a plea to the jurisdiction have brought discre- tion to allow ‘reasonable opportunity for targeted discovery’ and to grant parties more time to gather evidence and prepare for such hearings.” Mission Consol. Indep.

Sch. Dist. v. Garcia, 372 S.W.3d 629, 642–43 (Tex. 2012) (quoting Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 233 (Tex. 2004)). If a jurisdictional question requires discovery to resolve it, ordering that discovery is not an irreparable harm, even if the discovery ultimately proves that the defendant arguing a lack of jurisdic- tion is correct. Instead, a district court that orders jurisdictional discovery properly “exercises its discretion.” Miranda, 133 S.W.3d at 227.

Cooper is also incorrect that a denial of his plea to the jurisdiction would allow him an automatic interlocutory appeal to this Court (and an automatic stay in the trial court pending appeal). Cooper claims he could avail himself of the appeal pro- vision in section 51.014(a)(8) of the Civil Practice and Remedies Code. But that pro- vision only authorizes interlocutory appeals from denials of “a plea to the jurisdic- tion by a governmental unit.” Id. The Supreme Court has held that while “govern- mental unit” includes “[a] person sued in an official capacity,” section 51.014(a)(8) does not apply to claims brought against a governmental employee sued in his indi- vidual capacity. Koseoglu, 233 S.W.3d at 845. Rather, the only mechanism for a gov- ernmental employee to appeal the denial of immunity for individual capacity claims against him is pursuant to section 51.014(a)(5), which authorizes an interlocutory appeal after the district court “denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state.” Id.; accord Koseoglu, 233 S.W.3d at 845– (“[A]n official sued in both his official and individual capacities can file a plea to the jurisdiction in defense of the official capacity claims against him and at the same time file a motion for summary judgment on official immunity grounds on the indi- vidual capacity claims against him.”).

The State has repeatedly reiterated that its claims against Cooper are in his in- dividual capacity, not his official capacity. For example, the State has argued that this suit does not “seek[] relief that would lie against the governmental principal ra- ther than the agent personally, such as compelling payment of funds from the public treasury.” MR.75 (quoting GTECH Corp. v. Steele, 549 S.W.3d 768, 784 (Tex. App.—Austin 2018) (explaining how to differentiate whether a government em- ployee is sued in his official or personal capacity), aff’d sub nom. Nettles v. GTECH Corp., 606 S.W.3d 726 (Tex. 2020)). Nor does the State seek to “control state ac- tion” or subject UT Southwestern to liability—rather, the lawsuit seeks relief from Cooper personally, such as civil penalties and a permanent injunction to bar him from prescribing testosterone to minor females. MR.75–76 (quoting GTECH, 549 S.W.3d at 786). As such, by requiring additional jurisdictional discovery to rule on Cooper’s plea, including the ordered third party deposition, the district court has deprived Cooper of nothing and instead is trying to determine whether his plea has merit. That is well within the court’s discretion.

PRAYER For the foregoing reasons, the State respectfully prays that this Honorable Court deny Relator’s Emergency Motion to Stay.

Respectfully submitted.

Ken Paxton /s/ Abigail E. Smith Attorney General of Texas Abigail E. Smith Assistant Attorney General Brent Webster State Bar No. 24141756 First Assistant Attorney General Office of the Attorney General Johnathan Stone Consumer Protection Division Chief, Consumer Protection Division P.O. Box 12548 State Bar No. 24071779 Austin, Texas 78711 Tel: (214) 290-8830 Fax: (214) 969-7615 Counsel for the State

No. 15-25-00101-CV In the Court of Appeals for the Fifteenth Judicial District Austin, Texas In re M. Brett Cooper, M.D., Relator.

On Writ of Mandamus 493rd Judicial District Court, Collin County Appellant’s Appendix Tab 1. Defendant M. Brett Cooper, M.D.’s Motion to Quash Deposition Subpoena and Motion for Protective Order ............................................. A

Tab A: Motion to Quash CAUSE NO: 493-08026-2024

THE STATE OF TEXAS, § IN THE DISTRICT COURT OF § Plaintiff, § § v. § COLLIN COUNTY, TEXAS § M. BRETT COOPER, M.D., § § Defendant. § 493RD JUDICIAL DISTRICT COURT

DEFENDANT M. BRETT COOPER, M.D.’S MOTION TO QUASH DEPOSITION SUBPOENA AND MOTION FOR PROTECTIVE ORDER Defendant M. Brett Cooper M.D. (“Dr. Cooper”) respectfully moves to quash the State’s Notice of Oral Deposition scheduled for July 14, 2025, under Texas Rule of Civil Procedure 199.4, and, in the alternative, for a protective order under Rule 192.6. As explained below, Dr. Cooper’s counsel made clear he would only be available on July 14 for a deposition on jurisdictional issues—he otherwise objects to the time and place of this deposition. The deposition as noticed constitutes impermissible merits-based discovery while Dr. Cooper’s Plea to the Jurisdiction remains unresolved.

This Motion is timely filed under Rule 199.4 within three business days of service of the notice of deposition. Pursuant to Rule 199.4, an objection to the time and place of a deposition stays the deposition. Dr. Cooper respectfully asks this Court to quash the State’s Notice of Oral Deposition, or in the alternative, issue a protective order limiting the deposition solely to jurisdictional topics.

BACKGROUND On April 25, 2025, Dr. Cooper filed a combined Plea to the Jurisdiction and Motion to Dismiss in response to the State’s First Amended Petition. Dr. Cooper’s Plea asserts that the lawsuit is barred by sovereign immunity under Section 101.106(f) of the Texas Civil Practice and Remedies Code because he was sued as a State employee for acts within the scope of his employment, and the lawsuit could have been brought under the Texas Tort Claims Act. 1 See Tex. Civ. Prac. & Rem. Code § 101.106(f); Skapek v. Perkins, No. 05-16-00796-CV, 2017 WL 655950, at *2 (Tex. App.—Dallas Feb. 17, 2017, pet. denied) (citing Tex. Civ. Prac. & Rem. Code § 101.106(f)).

Importantly, the State has not brought an ultra vires suit. That is, the State did not sue Dr. Cooper in his official capacity, and the State has not limited the relief sought to prospective injunctive relief. See City of Austin v. Util. Assocs., Inc., 517 S.W.3d 300, 308 (Tex. App.-Austin 2017, pet. denied) (“There are four important requirements for such a suit. First, the suit must formally be pleaded against a governmental official, in his or her official capacity[.]”); City of El Paso v. Heinrich, 284 S.W.3d 366, 376 (Tex. 2009) (Ultra vires suits only allow for “prospective injunctive relief.”). As a result, the Court’s jurisdiction hinges entirely on whether Dr. Cooper was functioning as a state employee—not whether his conduct was allegedly improper. Garza v. Harrison, 574 S.W.3d 389, 394 (Tex. 2019) (citing Laverie v. Wetherbe, 517 S.W.3d 748, 753

Specifically, Dr. Cooper is “an employee of the University of Texas Southwestern Medical Center” being sued for actions taken “in the course of his medical practice.” First Amended Petition ¶¶ 1, 197. The State sued Dr. Cooper for allegedly: (1) providing gender-affirming care in violation of Tex. Health & Safety Code § 161.702(3); (2) falsifying medical records, prescriptions, and billing records to intentionally conceal the unlawful conduct in violation of Tex. Bus. & Com. Code §§ 17.46(a), (b)(5) (the “DTPA”); and for (3) “prescrib[ing], dispens[ing] and administer[ing]” testosterone “without a valid medical purpose” in violation of Tex. Health & Safety Code § 481.071 (the “Texas Controlled Substances Act” or “TCSA”). (Tex. 2017)). The question is not whether Dr. Cooper acted lawfully or unlawfully, it’s whether he was “doing his job.” Garza, 574 S.W.3d at 394.

At the May 29, 2025 hearing on Dr. Cooper’s Plea to the Jurisdiction, the Court ordered targeted jurisdictional discovery to proceed before ruling on the Plea’s substance. See May 29 Hr’g Tr. at 9:21–23. The Court delineated certain categories of jurisdictional discovery it deemed necessary to resolve the Plea, which included “[a] jurisdictional deposition of the individual medical provider. Here, that would be Cooper.” May 29 Hr’g Tr. at 13:5–24. The Court declined “at present” to limit the deposition of Dr. Cooper to specified topics, but expressly left open the possibility of limitations based on further discussion and briefing: As it relates to Dr. Cooper, at present, the Court declines to limit to topics. We will select a date for Dr. Cooper, get it scheduled, y’all will have further discussions, and if y’all are not able to reach agreement, the Court will review its case law and render a decision related to the request that it be limited to topics. Id. at 57:13–19.

In advance of the hearing, on May 21, 2025, the parties conferred to try to reach agreements regarding Dr. Cooper’s jurisdictional deposition. Holland Decl. ¶ 2. At that time, the State explained it would not ask Dr. Cooper about patient care with respect to specific patients, but would question Dr. Cooper generally about the gender-affirming care he provided. Holland Decl.

¶ 3. The State even indicated a willingness to enter into a Rule 11 Agreement to that effect. Id. But after the May 29 hearing, when Dr. Cooper sought to have the “further discussions” ordered by the Court, the State indicated it was opposed to the idea of limiting the deposition to topics.

Holland Decl. ¶ 5. Dr. Cooper’s counsel indicated that if the State was “willing to agree to jurisdictional topics, we and Dr. Cooper can be available for a deposition on July 14,” making clear that “we will present Dr. Cooper for a deposition on jurisdictional issues only.” Id. The State responded on June 9, 2025, by serving a deposition notice for Dr. Cooper’s deposition on

July 14, 2025. Holland Decl. ¶ 6. The State’s Notice of Oral Deposition does not include any limitation to jurisdiction or list topics for the deposition. Nor has the State proposed any Rule 11 Agreement to limit the deposition to jurisdictional issues only. Id. LEGAL STANDARDS Under Texas Rule of Civil Procedure 199.4, a party “may object to the time and place designated for an oral deposition by motion for protective order or by motion to quash the notice of the deposition. If the motion is filed by the third business day after service of the notice of deposition, an objection to the time and place of a deposition stays the oral deposition until the motion can be determined.” Tex. R. Civ. P. 199.4. Further, parties have the right to protection “from undue burden, unnecessary expense, harassment or annoyance, or invasion of personal, constitutional, or property rights.” Crown Central Petroleum Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex. 1995) (citing former Tex. R. Civ. P. 166b(5), now Rule 192.6(b)). Rule 192.6 allows the Court to make any order to protect the movant from these harms including limiting “the extent or subject matter of discovery.” Tex. R. Civ. P. 192.6(b)(2).

ARGUMENT The State’s noticed deposition of Dr. Cooper must be quashed because it fails to limit the deposition to jurisdictional matters, despite this Court’s order for a “jurisdictional deposition of the individual medical provider,” and binding Texas Supreme Court precedent holding that “a court must not proceed on the merits of a case until legitimate challenges to its jurisdiction have been decided.” See May 29 Hr’g Tr. at 13:5–24 (emphasis added); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). The State’s Notice omits any statement of scope, includes no list of topics, and gives no indication that the State’s questions will be limited to the discrete jurisdictional issues necessary to resolve Dr. Cooper’s pending Plea. The State has also refused to provide clarification or enter into any agreement to that effect, despite Dr. Cooper’s requests to meet and confer on this issue following the hearing. In short, the Notice contemplates an unrestricted deposition allowing full merits discovery without any confinement to jurisdictional issues. Allowing the deposition to proceed without guardrails violates the Court’s directive for a “jurisdictional” deposition and undermines the purpose of Section 101.106(f)—to spare parties the “burden and expense of litigation before their claims of immunity from suit have been determined.” In re Lamar Univ., No. 09-18-00241-CV, 2018 WL 3911062, at *3 (Tex. App.- Beaumont Aug. 16, 2018, orig. proceeding).

Jurisdiction must be the Court’s “first consideration.” Diocese of Galveston-Houston v. Stone, 892 S.W.2d 169, 174 (Tex. App.-Houston [14th Dist.] 1994, orig. proceeding). If “even one jurisdictional argument remains unresolved,” the court “must not proceed on the merits.” See Rattray v. City of Brownsville, 662 S.W.3d 860, 868–69 (Tex. 2023); In re Torres, No. 13-17- 00172-CV, 2017 WL 2665986, at *5 (Tex. App.-Corpus Christi, June 21, 2017 orig. proceeding).

While limited discovery may be permitted to resolve a jurisdictional plea, that discovery must be narrowly “confine[d] to the evidence relevant to the jurisdictional issue.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000); Quested v. City of Houston, 440 S.W.3d 275, 283 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (A court may permit targeted discovery of facts “material to the trial court’s assessment of [the] plea to the jurisdiction.”).

Without Court intervention, the State’s unlimited deposition undoubtedly will veer into merits topics. Indeed, the State made clear on the record at the May 29 hearing that it believes “whether or not Dr. Cooper was operating in compliance with hospital policy” is relevant jurisdictional discovery. May 29 Hr’g Tr. at 37:22–23. But whether Dr. Cooper followed UTSW policy or procedures is not a jurisdictional issue here. That question would only be relevant if the

State had pleaded an ultra vires claim, which it has not done. Compare February 28, 2025 Hr’g Tr. at 63:2-4 (“Dr. Cooper himself was not sued in his official capacity. He was sued in his individual capacity.”) with City of Austin, 517 S.W.3d at 308 (Ultra vires suits “must formally be pleaded against a governmental official, in his or her official capacity.”); compare FAP ¶ 207(i)) (seeking civil penalties as a form of relief); with City of El Paso, 284 S.W.3d at 376 (Ultra vires suits only allow for “prospective injunctive relief”). The State’s insistence on questioning Dr. Cooper about compliance with UTSW’s policies is a transparent attempt to conduct premature merits discovery under the guise of jurisdiction. If the Court does not quash the State’s deposition subpoena, Dr. Cooper requests that it enter a protective order limiting the deposition to jurisdictional topics in advance.

Moreover, without the benefit of receiving and reviewing documents from the hospitals (production of which is currently stayed by the 15th Court of Appeals, as this Court confirmed at the May 29 hearing), Dr. Cooper cannot adequately prepare for a deposition on July 14, 2025— jurisdictional or otherwise. The State has indicated it thinks “hospital policy” is relevant to both jurisdiction and merits issues. But any such policies have yet to be produced. This is why the case schedule agreed upon by the parties and entered by the Court on April 22, 2025 provided for party depositions on October 1, 2, 3, or 8, 2025—to allow sufficient time for document discovery beforehand.2

Further, because the Court has not yet ruled on Dr. Cooper Rule 91a Motion to Dismiss the State’s criminal Texas Controlled Substances Act claim under Tex. Health & Safety Code § 481.071—and cannot do so until the Plea is resolved—the State is asking Dr. Cooper to testify from memory with the threat of criminal exposure hanging over his head.

Should the Court decline to quash the deposition, the appropriate and proactive remedy is to issue a protective order strictly limiting Dr. Cooper’s deposition to jurisdictional topics, thereby avoiding the need for repeated objections to scope or the invocation of the Fifth Amendment.

PRAYER For the reasons stated above, Dr. Cooper respectfully asks this Court to quash the July 14 deposition subpoena. In the alternative, Dr. Cooper requests that the Court enter a protective order limiting the deposition to the following jurisdictional questions: 1. The existence, scope, and duration of an employer-employee relationship between the University of Texas Southwestern Medical Center (UTSW) and Dr. Cooper.

2. The identity of the entity that pays Dr. Cooper’s salary.

3. Dr. Cooper’s assignment of rights related to payment for professional services he renders in the scope of his employment.

4. Dr. Cooper’s general professional duties and responsibilities related to patient care and treatment in his capacity as an employee of UTSW. However, this topic specifically excludes testimony about Dr. Cooper’s care and treatment of any individual patient, including Patients One through Fifteen identified in the State’s First Amended Petition.

5. The general existence of UTSW-issued rules, regulations, or policies related to patient care and treatment. This topic specifically excludes testimony about whether and to what extent Dr. Cooper in fact complied with any particular UTSW rule, regulation, or policy.

Dated: June 11, 2025 Respectfully submitted, /s/ Avi Moshenberg Nicholas R. Lawson Texas Bar No. 24083367 Avi Moshenberg Texas Bar No. 24083532 LAWSON & MOSHENBERG PLLC Travis Street, Suite 2101 #838 Houston, TX 77002 (832) 280-5670 [email protected] [email protected]

Simona Agnolucci (pro hac vice) Barrington Dyer (pro hac vice) Jennifer J. Hardy Texas Bar No. 24096068 Anika Holland (pro hac vice) Zoe Packman (pro hac vice) Isabella McKinley Corbo (pro hac vice) Remy Carreiro (pro hac vice) WILLKIE FARR & GALLAGHER LLP Bush St, 34th Floor San Francisco, CA 94104 (415) 858-7470 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Attorneys for Defendant M. Brett Cooper, M.D.

CERTIFICATE OF SERVICE I hereby certify that, on this June 11, the foregoing was served by email and/or by electronic filing service on all counsel of record.

/s/ Anika Holland Anika Holland

Automated Certificate of eService This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Pauline Sisson on behalf of Abigail Smith Bar No. 24141756 [email protected] Envelope ID: 101961636 Filing Code Description: Response Filing Description: 20250612 States Resp to Emerg Mtn Stay Ex A Status as of 6/12/2025 4:45 PM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Simona Agnolucci [email protected] 6/12/2025 4:25:36 PM SENT Barrington Dyer [email protected] 6/12/2025 4:25:36 PM SENT Anika Holland [email protected] 6/12/2025 4:25:36 PM SENT Isabella Corbo [email protected] 6/12/2025 4:25:36 PM SENT Zoe Packman [email protected] 6/12/2025 4:25:36 PM SENT Remy Carreiro [email protected] 6/12/2025 4:25:36 PM SENT Emma Rodriguez [email protected] 6/12/2025 4:25:36 PM SENT Johnathan Stone [email protected] 6/12/2025 4:25:36 PM SENT Rob Farquharson [email protected] 6/12/2025 4:25:36 PM SENT David Shatto [email protected] 6/12/2025 4:25:36 PM SENT Patrick Todd [email protected] 6/12/2025 4:25:36 PM SENT Karen Watkins [email protected] 6/12/2025 4:25:36 PM SENT Martin Cohick [email protected] 6/12/2025 4:25:36 PM SENT Cory Sutker [email protected] 6/12/2025 4:25:36 PM SENT Jackie Cooper [email protected] 6/12/2025 4:25:36 PM SENT Thanh Nguyen [email protected] 6/12/2025 4:25:36 PM SENT

Associated Case Party: The State of Texas Name BarNumber Email TimestampSubmitted Status Abby Smith [email protected] 6/12/2025 4:25:36 PM SENT Amy Pletscher [email protected] 6/12/2025 4:25:36 PM SENT Pauline Sisson [email protected] 6/12/2025 4:25:36 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Pauline Sisson on behalf of Abigail Smith Bar No. 24141756 [email protected] Envelope ID: 101961636 Filing Code Description: Response Filing Description: 20250612 States Resp to Emerg Mtn Stay Ex A Status as of 6/12/2025 4:45 PM CST Associated Case Party: The State of Texas Pauline Sisson [email protected] 6/12/2025 4:25:36 PM SENT Emily Samuels [email protected] 6/12/2025 4:25:36 PM SENT Melinda Pate [email protected] 6/12/2025 4:25:36 PM SENT