# Nariocan Enterprises LLC D/B/A Cantu's Pharmacy v. the Texas Health and Human Services Commission

> Texas Court of Appeals, 15th District · March 28, 2025

URL: https://www.frixlaw.com/law-library/cases/10834740

## Case

- **Court:** Texas Court of Appeals, 15th District
- **Decided:** March 28, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

ACCEPTED
15-24-00117-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
3/28/2025 9:50 AM
No. 15-24-00117-CV CHRISTOPHER A. PRINE
CLERK
Fifteenth Court of Appeals FILED IN
15th COURT OF APPEALS
Austin, Texas AUSTIN, TEXAS
3/28/2025 9:50:23 AM
CHRISTOPHER A. PRINE
Clerk
Nariocan Enterprises LLC
d/b/a Cantu’s Pharmacy,
Appellant,
v.

Texas Health and Human Services Commission,
Appellee

On appeal from the 98th District Court of Travis County, Texas

APPELLANT’S AMENDED BRIEF

Michael Pruneda Ricardo Pumarejo Jr.
State Bar No. 24025601 State Bar No. 24056168
michael@michaelpruneda.com ricardo@pumarejolaw.com
THE PRUNEDA LAW FIRM, PLLC P UMAREJO L AW
P.O. Box 1664 1606 W. 42nd Street
Pharr, Texas 78577 Austin, Texas 78756
p. 956.702.9675 p. 512.731.7869
Counsel for Appellant
IDENTITY OF PARTIES AND COUNSEL

Nariocan Enterprises LLC Michael Pruneda
d/b/a Cantu’s Pharmacy, State Bar No. 24025601
Appellant michael@michaelpruneda.com
THE PRUNEDA LAW FIRM, PLLC
P.O. Box 1664
Pharr, Texas 78577
p. 956.702.9675
Trial & Appellate Counsel

Ricardo Pumarejo Jr.
State Bar No. 24056168
ricardo@pumarejolaw.com
P UMAREJO L AW
1606 W. 42nd Street
Austin, Texas 78756
p. 512.731.7869
Trial & Appellate Counsel

Texas Health and Human Sherlyn Harper
Services Commission, State Bar No. 24093176
Appellee sherlyn.harper@oag.texas.gov
Tiffani N. Collins
State Bar No. 24067550
tiffani.collins@oag.texas.gov
Assistant Attorney General
Administrative Law Division
OFFICE OF THE ATTORNEY GENERAL OF
TEXAS
808 Travis Street #1520
Houston, Texas 77002
p. 713.225.8913
Trial & Appellate Counsel

2
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ....................................................................... 2
INDEX OF AUTHORITIES ............................................................................................. 4
RECORD REFERENCES ................................................................................................. 6
STATEMENT REGARDING ORAL ARGUMENT ........................................................... 7
STATEMENT OF THE CASE........................................................................................... 8
ISSUES PRESENTED ...................................................................................................... 9
STATEMENT OF FACTS ............................................................................................... 10
SUMMARY OF THE ARGUMENT ................................................................................. 12
ARGUMENT ................................................................................................................. 13
I. The trial court erred in granting the Commission’s plea to the
jurisdiction. ...................................................................................................13

II. The trial court abused its discretion by not permitting
Nariocan to obtain jurisdictional discovery. ............................................19

III. To the extent the Court holds that the Commission was
entitled to dismissal of Nariocan’s claims, the Court should
nonetheless hold that the trial court erred in dismissing the
claims “with prejudice.”..............................................................................20

PRAYER ........................................................................................................................ 22
CERTIFICATE OF COMPLIANCE................................................................................. 24
APPENDIX ................................................................................................................... 25

3
INDEX OF AUTHORITIES
Case Law

Ambrose v. City of Brownsville, No. 13-15-00039-CV, 2016 WL
1732194 (Tex. App.—Corpus Christi Apr. 28, 2016, no pet.)
(mem. op.)................................................................................................................... 14
Christ v. Tex. Dep’t of Transp., 664 S.W.3d 82 (Tex. 2023) ......................................13
City of Richardson v. Bowman, 555 S.W.3d 670 (Tex. App.—
Dallas 2018, pet. denied) ........................................................................................... 15
Consol. Towne E. Holdings, LLC v. City of Laredo, 675 S.W.3d 65
(Tex. App.—San Antonio 2023, no pet.) ............................................................... 21
EWB-I PlazAmericas Mall Tex., LLC, 527 S.W.3d 447 (Tex.
App.—Houston [1st Dist.] 2017, pet. denied) ....................................................... 22
Hall v. City of Jersey Village, No. 01-22-00452-CV, 2023 WL
3873351 (Tex. App.—Houston [1st. Dist.] June 8, 2023, no
pet.) (mem. op.) ..........................................................................................................19
Health and Human Servs. Comm’n v. Navarro, No. 15-24-00054-
CV, 2024 WL 4984183 (Tex. App.—Austin [15th Dist.] Dec.
3, 2024, no pet.) (mem. op.) ..................................................................................... 13
Holmes v. S. Methodist Univ., No. 05-15-01001-CV, 2016 WL
3085718 (Tex. App.—Dallas May 31, 2016, no pet.) (mem.
op.) ............................................................................................................................... 19
Leonard v. Alabama State Bd. of Pharmacy, 61 F.4th 902, 905 (11th
Cir. 2023) .................................................................................................................... 16
Moers v. Harris Cnty. Appraisal Dist., 469 S.W.3d 655 (Tex.
App.—Houston [1st Dist.] 2015, pet. denied) ....................................................... 21
Muth v. Voe, 691 S.W.3d 93 (Tex. App.—Austin 2024, pet.
filed) ............................................................................................................................. 15
Richardson v. State Farm Lloyds Ins., No. 2-04-072-CV, 2007 WL
1018651 (Tex. App.—Fort Worth Apr. 5, 2007, pet. denied)
(mem. op.)................................................................................................................... 22

4
Save Our Springs All. v. City of Austin, 149 S.W.3d 674 (Tex.
App.—Austin 2004, no pet.) .................................................................................... 22
Scarborough v. Metro Transit Auth. of Harris Cnty., 326 S.W.3d 324
(Tex. App.—Houston [1st Dist.] 2010, pet. denied) .............................................22
Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212
(Tex. 2002) .................................................................................................................. 21
Miscellaneous
Eleventh Amendment to Declaration Under the Public
Readiness and Emergency Preparedness Act for Medical
Countermeasures Against COVID-19, 88 Fed. Reg. 30769
(May 12, 2023) ...................................................................................................... 16-17
42 U.S.C. 247d-6d ......................................................................................................17
Fifth Amendment to Declaration Under the Public Readiness
& Emergency Preparedness Act for Medical Countermeasures
Against COVID-19, 88 Fed. Reg. 7872-2 (Feb. 2, 2021) .....................................18
Tex. Const. art. I, § 19 ............................................................................................... 14
TEX. GOV’T CODE § 2001.038 ................................................................................. 18

5
RECORD REFERENCES

A citation to “CR” refers to the clerk’s record. A citation to “RR” refers

to the reporter’s record. A number proceeding “CR” or “RR” refers to a page

number therein.

6
STATEMENT ON ORAL ARGUMENT

Oral argument should not be granted because it would not significantly

aid the Court in deciding this case; there are no complicated legal issues presented

in this appeal; the issues presented have been authoritatively decided; and it

would not provide a more complete understanding of the facts presented in this

appeal.

7
STATEMENT OF THE CASE

Nariocan Enterprises LLC d/b/a Cantu’s Pharmacy (“Nariocan”) filed

suit against the Texas Health and Human Services Commission (“the

Commission”), wherein it alleged a constitutional due process violation for

which equitable and declaratory relief was sought. CR:144. The suit was assigned

to the 98th District Court of Travis County. Id. The Commission filed a plea to

the jurisdiction, whereby it sought dismissal of the entire suit. CR:15, 152. The

Honorable Judge Jan Soifer signed an order granting the plea. CR:348. Nariocan

then timely filed its notice of appeal. CR:353.

8
ISSUES PRESENTED

Issue 1: Did the trial court err in granting the Commission’s plea to the
jurisdiction?
Issue 2: Did the trial court abuse its discretion by not allowing any jurisdictional
discovery prior to the ruling to the plea to the jurisdiction?
Issue 3: Did the trial court err in dismissing Nariocan’s claims with prejudice
rather than without prejudice?

9
STATEMENT OF FACTS

This appeal arises from a dispute between Nariocan Enterprises LLC

d/b/a Cantu’s Pharmacy (“Nariocan”) and the Texas Health and Human

Services Commission (“the Commission”) concerning an administrative review

and investigation into professional and occupational activities. CR:4-8, 144-49,

262-66, 289-90. Nariocan is a Texas-based pharmacy providing services to

Medicaid beneficiaries in compliance with the Texas Medicaid Provider

Procedures Manual (“TMPPM”). CR:15, 144, 264.

The controversy began when the Commission conducted an

administrative review of Nariocan’s claims for reimbursement related to

COVID-19 at-home test kits. CR:231-35. The Commission asserted that, “[i]n

10,576 instances,” Nariocan violated new TMPPM guidelines by “bill[ing] the

Medicaid program for COVID-19 At-home Test Kits refills that were not

supported by a physician’s prescription.” CR:247 (bold and underline omitted);

CR:145-46, 265, 285. This later resulted in Nariocan having to produce records

to the Commission and in meetings between the parties’ representatives.

CR:145-46.

Nariocan filed its original petition on February 14, 2024, seeking

declaratory and injunctive relief. CR:4. It argued that the Commission failed to

provide adequate notice of TMPPM policy changes and that the Commission’s

actions were preempted by federal law under the Public Readiness and

10
Emergency Preparedness Act (“PREP Act”). CR:4, 144, 231. Nariocan also

challenged the sufficiency of the Commission’s notice procedures and alleged

that the Commission exceeded its statutory authority by seeking to enforce the

alleged policy changes without following proper administrative procedures. Id.

The Commission responded by filing a plea to the jurisdiction, wherein it

argued that Nariocan’s claims were not ripe, that Nariocan had not exhausted its

administrative remedies, and that the Commission was protected by sovereign

immunity. CR:15, 152. On July 30, 2024, the trial court granted the Commission’s

plea to the jurisdiction and dismissed Nariocan’s claims with prejudice. CR:348.

Nariocan then filed a motion to modify judgment to argue that any dismissal

should have been without prejudice, but that motion was denied in October

2024. CR:349, 368; APPX at Tab 2. Nariocan then filed a notice of appeal.

CR:353.

11
SUMMARY OF THE ARGUMENT

The trial court erred in granting the plea the jurisdiction because the

Commission did not have immunity from Nariocan’s constitutional due process

claim or its declaratory action. Nariocan’s constitutional due process claim is

proper because (1) it is limited to seeking only equitable relief; (2) it is ripe in that

Nariocan is alleging the active sustainment of injuries from the Commission’s

investigation; and (3) it is not subject to an exhaustion-of-administrative-

remedies requirement due to the nature of the constitutional challenge it

presents. Infra pp. 12-15. As for Nariocan’s related declaratory action, that claim

is proper because it properly falls within § 2001.038 of the Administrative

Procedure Act. Infra pp. 15.

To the extent the Court holds that the trial court’s ruling on the plea to

the jurisdiction turns on the constitutionality of the Commission’s legal basis for

determining that Nariocan improperly refilled COVID-19 test kits that were not

supported by a physician’s prescription, the Court should hold that the trial court

abused its discretion in denying Nariocan the opportunity to conduct related

jurisdictional discovery.

In the event the Court holds that the Commission was entitled to dismissal

of Nariocan’s claims, the Court should still conclude that the trial court erred by

dismissing the claims “with prejudice” rather than “without prejudice.”

Infra pp. 15-17.

12
ARGUMENT

I. The trial court erred in granting the Commission’s plea to the
jurisdiction.

“Because sovereign immunity implicates a trial court’s subject-matter

jurisdiction, it is properly asserted in a plea to the jurisdiction.” Christ v. Tex. Dep’t

of Transp., 664 S.W.3d 82, 86 (Tex. 2023). An appellate court reviews a trial court’s

ruling on a plea to the jurisdiction de novo. Health and Human Servs. Comm’n v.

Navarro, No. 15-24-00054-CV, 2024 WL 4984183, at *2 (Tex. App.—Austin

[15th Dist.] Dec. 3, 2024, no pet.) (mem. op.). Sovereign immunity encompasses

two distinct principles: immunity from suit and immunity from liability. Id. In its

plea to the jurisdiction, the Commission raised only immunity from suit, which

prohibits suits against the State unless the State expressly consents to the suit. Id.

Such consent must ordinarily be found in a constitutional provision or legislative

enactment. Id.

A plea to the jurisdiction may challenge the pleadings, the existence of

jurisdictional facts, or both. Id. For a plea that challenges the pleadings, an

appellate court must determine if the plaintiff has alleged facts affirmatively

demonstrating subject-matter jurisdiction. Id. In suits against a state entity, the

plaintiff has the burden to prove that the pled facts, if true, affirmatively

demonstrate that sovereign immunity either is inapplicable or has been waived.

Id. A plea will be sustained if the face of the pleadings affirmatively demonstrates

13
incurable defects of jurisdiction, even if the allegations in the plaintiff’s pleadings

are taken as true. Id.

In Nariocan’s live pleading, it raised a constitutional claim alleging a due

process violation under the Texas Constitution, for which equitable and

declaratory relief was sought. CR:144. Article I, § 19 of the Texas Constitution

provides that “[n]o citizen of this State shall be deprived of life, liberty, property,

privileges or immunities, or in any manner disenfranchised, except by the due

course of the law of the land.” TEX. CONST. art. I, § 19. “[A] trial court is without

subject-matter jurisdiction when a plaintiff brings a due process claim requesting

monetary damages” because “the due process provisions of the Texas

Constitution do not provide a cause of action for damages, but only for direct

claims seeking equitable relief.” Ambrose v. City of Brownsville, No. 13-15-00039-

CV, 2016 WL 1732194, at *2 (Tex. App.—Corpus Christi Apr. 28, 2016, no pet.)

(mem. op.). Here, Nariocan’s did not request monetary damages in connection

with its constitutional due-process claim, but instead merely sought “any and all

equitable relief as allowed by law and the Texas Constitution.” CR:148.

Nariocan has asserted that it was subjected to an intrusive investigation

that is improperly predicated on an uncodified, federally-preempted policy

change. CR:159, 216-28, 231-39. Though the Commission asserts that

Nariocan’s claims are premature because its investigation allegedly remains

ongoing, Nariocan has asserted that it is being directly harmed by the

14
investigation itself. CR:335 (“Defendant THHSC conducted an investigation,

obtained Plaintiff’s files, interviewed witnesses, and issued its findings to obtain

money for overpayments. These actions threatened Plaintiff’s livelihood and

occupation forcing it to engage legal representation.”). The constitutional due-

process claim is thus ripe. See Muth v. Voe, 691 S.W.3d 93, 123-27 (Tex. App.—

Austin 2024, pet. filed) (holding that plaintiffs’ due process claim complaining of

incomplete investigation was ripe where injury from investigation was asserted).

Furthermore, though the Commission contends that it has an ongoing

investigation and thus no final determination has been made, that contention is

at odds with the Commission’s January 30, 2024 letter to Nariocan. CR:247. In

that letter, the Commission expresses its determination that “[i]n 10,576

instances, [Nariocan] billed the Medicaid program for COVID-19 At-home Test

Kits refills that were not supported by a physician’s prescription,” and states

therein that the goal now “is to work with providers to . . . recover

overpayments[.]” CR:247-48.

The Commission’s contention that Nariocan is required to exhaust

administrative remedies should similarly be rejected because the “exhaustion of

administrative remedies is not required . . . [where] the constitutional challenges

raise pure questions of law that are outside the jurisdiction of the administrative

hearing officer.” City of Richardson v. Bowman, 555 S.W.3d 670, 686 (Tex. App.—

Dallas 2018, pet. denied). Further, “[t]he supreme court has held that

15
administrative agencies lack the ultimate power of constitutional construction.”

Id. Here, Nariocan is posing a constitutional challenge (predicated on the PREP

Act’s federal preemption) to the policy change underlying the Commission’s

investigation, which is a challenge that raises a pure question of law. As such,

Nariocan’s claims should not be dismissed on the alleged basis that

administrative remedies have not been exhausted.

To be sure, the Commission’s grounds for investigating Nariocan support

a determination that the investigation is preempted by the PREP Act. CR:236-37.

In the early days of the Covid-19 pandemic, both State and
Federal governments partnered with private citizens and businesses
to “Stop the Spread” of the virus. The government invested billions
of dollars in the research, development, and production of tests to
detect existing infections and vaccines to arrest the prevalence of
future infections. Thousands of businesses, schools, hospitals, and
community organizations across the nation mobilized to distribute
tests and vaccines to millions of people. To encourage voluntary
participation in the distribution of these countermeasures, the
Secretary of Health and Human Services (HHS) invoked the Public
Readiness and Emergency Preparedness Act (PREP Act), to
provide legal immunity for the individuals and organizations who
provided these countermeasures to the public.

Leonard v. Alabama State Bd. of Pharmacy, 61 F.4th 902, 905 (11th Cir. 2023).

On May 12, 2023, the U.S. Secretary of Health and Human Services (“the

Secretary”) issued an amendment to the PREP Act (“the Eleventh

Amendment”). CR:251-60. See Eleventh Amendment to Declaration Under the

Public Readiness and Emergency Preparedness Act for Medical

16
Countermeasures Against COVID-19, 88 Fed. Reg. 30769 (May 12, 2023). In the

Eleventh Amendment—which defines “Covered Countermeasures” to include

any device used to diagnose COVID-19, see id. at 30774—the Secretary states as

follows:

I am also amending section VII of the Declaration to extend
the time period of PREP Act coverage through December 31, 2024
to Qualified Persons who are licensed pharmacists to order and
administer . . . Covered Countermeasures that are COVID-19
vaccines, and COVID-19 tests regardless of . . . any federal,
regional, state or local emergency Declaration or other limitations
on distribution stated in section VII of the Declaration. Extending
the time period for PREP Act coverage to licensed pharmacists . . .
allows for continued access by the recipient Population to Covered
Countermeasures that are COVID-19 vaccines . . . and COVID-19
tests.
....
As qualified persons, these licensed pharmacists . . . will be
afforded liability protections in accordance with the PREP Act and
the terms of this amended Declaration. To the extent that any State law
would otherwise prohibit these healthcare professionals who are a “qualified
person” from prescribing, dispensing, or administering “Covered
Countermeasures” that are . . . COVID-19 tests, such law is preempted.

Id. at 30770-71 (emphasis added); see 42 U.S.C. 247d-6d(b)(8) (“During the

effective period of a declaration . . . no State or political subdivision of a State

may establish, enforce, or continue in effect with respect to a covered

countermeasure any provision of law or legal requirement that . . . (A) is different

from, or is in conflict with, any requirement applicable under this section; and

17
(B) relates to the . . . distribution, sale, . . . prescribing, dispensing, or

administration by qualified persons of the covered countermeasure[.]”).

The state law driving the Commission’s investigation and underlying the

Commission’s findings in the January 30, 2024 letter (CR:247) is expressly

preempted by the PREP Act and the Eleventh Amendment—for that law is

inconsistent with the professional authorities that federal law has bestowed upon

Nariocan and other pharmacies as it relates to COVID-19 at-home test kits. See

Fifth Amendment to Declaration Under the Public Readiness & Emergency

Preparedness Act for Medical Countermeasures Against COVID-19, 88 Fed.

Reg. 7872-2 (Feb. 2, 2021) (“The plain language of the PREP Act makes clear

that there is complete preemption of state law as described above.”).

Lastly, in connection with its constitutional due process claim, Nariocan

sought to have the trial court “affirmatively declare its rights” with respect to the

policy change on which the Commission’s investigation rests. CR:147-48, 180.

In doing so, Nariocan invoked section 2001.038 of the Administrative Procedure

Act (“APA”), which authorizes “an action for declaratory judgment against a

state agency (here, the Commission) to determine “[t]he validity or applicability

of a rule . . . if it is alleged that the rule or its threatened application interferes

with or impairs, or threatens to interfere with or impair, a legal right or privilege

of the plaintiff.” TEX. GOV’T CODE § 2001.038(a), (c). Here, Nariocan was asking

the trial court to determine the validity of a rule—namely, the limitation placed

18
on COVID-19 at-home test kits (CR:244)—that the Commission was actively

threatening to apply against Nariocan, which in turn threatened Nariocan’s legal

right to obtain and retain compensation for Medicaid-covered services.

For all these reasons, the Court should hold that the Commission was not

entitled to dismissal of Nariocan’s constitutional due process claim and

declaratory action.

II. The trial court abused its discretion by not permitting Nariocan to
obtain jurisdictional discovery.
“Courts may limit discovery pending resolution of threshold issues, such

as jurisdiction.” Holmes v. S. Methodist Univ., No. 05-15-01001-CV, 2016 WL

3085718, at *4 (Tex. App.—Dallas May 31, 2016, no pet.) (mem. op.). A trial

court’s refusal to allow any jurisdictional discovery is reviewable on appeal of a

final order granting a plea to the jurisdiction. See, e.g., Hall v. City of Jersey Village,

No. 01-22-00452-CV, 2023 WL 3873351, at *6-9 (Tex. App.—Houston

[1st. Dist.] June 8, 2023, no pet.) (mem. op.) (holding trial court abused its

discretion in precluding appellant from taking any discovery prior to issuance of

order granting defendant’s plea to the jurisdiction).

After being served with requests for admission, interrogatories, and

requests for production, the Commission filed a motion to stay all discovery

pending the trial court’s ruling on the plea to the jurisdiction, which the trial court

granted over Nariocan’s opposition. CR:39, 158, 215. To the extent the Court

19
holds that the trial court’s ruling on the plea to the jurisdiction turns on the

constitutionality of the Commission’s legal basis for determining that Nariocan’s

professional activities were in any way unlawful, the Court should hold that the

trial court abused its discretion in denying Nariocan the opportunity to conduct

related jurisdictional discovery, which consists of requests for admissions

numbered 25 to 30; interrogatories numbered 5 and 6; and requests for

production numbered 1 and 9. CR:203-04, 207-08, 210-11. Upon holding as

such, the Court should vacate the order granting the plea to the jurisdiction and

remand this matter to the trial court for further proceedings consistent with the

Court’s opinion.

III. To the extent the Court holds that the Commission was entitled to
dismissal of Nariocan’s claims, the Court should nonetheless hold
that the trial court erred in dismissing the claims “with prejudice.”
After the Commission’s plea to the jurisdiction was granted, Nariocan

filed a motion to modify judgment on the basis that the Commission was, at

most, only entitled to dismissal “without prejudice” rather than “with prejudice.”

CR:349. This motion was denied. CR:368; APPX at Tab 2.

In the plea to the jurisdiction, the Commission argued that it was entitled

to dismissal on the alleged basis (1) that Nariocan’s claims were not ripe; and

(2) that Nariocan needed to exhaust administrative remedies. CR:15-27; RR:7-8.

20
Texas courts have repeatedly recognized that such grounds for dismissal warrant

a dismissal without prejudice rather than with prejudice.

• Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221
(Tex. 2002) (“Typically, if an agency has exclusive jurisdiction, a party
must exhaust all administrative remedies before seeking judicial review
of the agency’s action. Until then, the trial court lacks subject matter
jurisdiction and must dismiss the claims within the agency’s exclusive
jurisdiction. But because such dismissal does not implicate the claims’
merits, the trial court must dismiss the claims without prejudice.”
(citations omitted)).

• Consol. Towne E. Holdings, LLC v. City of Laredo, 675 S.W.3d 65, 76 (Tex.
App.—San Antonio 2023, no pet.) (“[T]he trial court lacks subject
matter jurisdiction over the claim and over [the plaintiff’s] related
requests for declarations, and the trial court properly dismissed those
requests. However, because the claim and requests are not ripe,
dismissal should have been without prejudice. Accordingly, we modify
the trial court’s judgment to dismiss [the plaintiff’s] regulatory takings
claim without prejudice.” (citations and footnotes omitted)).

• Moers v. Harris Cnty. Appraisal Dist., 469 S.W.3d 655, 668 (Tex. App.—
Houston [1st Dist.] 2015, pet. denied) (“In its plea to the jurisdiction,
HCAD moved to dismiss the Moerses’ claims for tax year 2012 for
lack of subject-matter jurisdiction on the grounds that they failed to
exhaust administrative remedies for that year. The trial court dismissed
all of the Moerses’ claims for tax year 2012 with prejudice. But
dismissal for failure to exhaust all administrative remedies does not
implicate the claims’ merits, and the trial court must dismiss [such]
claims without prejudice. We thus conclude that the trial court erred
by dismissing the claims with prejudice and modify the trial court’s
judgment to reflect that the 2012 claims were dismissed without
prejudice.” (citations, brackets, and internal quotation marks omitted)).

21
• Save Our Springs All. v. City of Austin, 149 S.W.3d 674, 685 (Tex. App.—
Austin 2004, no pet.) (“[A] finding that a claim is not ripe results in
dismissal without prejudice[.]”).

The Commission also argued that jurisdiction was lacking because Nariocan

allegedly had no injury and thus lacked standing. RR:6-7. But such an

argument—if accepted by the trial court—would only warrant dismissal without

prejudice. See, e.g., EWB-I PlazAmericas Mall Tex., LLC, 527 S.W.3d 447, 456 (Tex.

App.—Houston [1st Dist.] 2017, pet. denied); Scarborough v. Metro Transit Auth. of

Harris Cnty., 326 S.W.3d 324, 339 (Tex. App.—Houston [1st Dist.] 2010, pet.

denied); Richardson v. State Farm Lloyds Ins., No. 2-04-072-CV, 2007 WL 1018651,

at *1-2 (Tex. App.—Fort Worth Apr. 5, 2007, pet. denied) (mem. op.).

Accordingly, to the extent the Court holds that the Commission was

entitled to dismissal of Nariocan’s claims, the Court should nonetheless find that

the trial court erred in granting dismissal with prejudice rather than without

prejudice.

PRAYER

For these reasons, Nariocan prays that the Court reverse the order

granting the plea to the jurisdiction, render judgment denying the plea to the

jurisdiction, and remand this case to the trial court for proceedings consistent

with the Court’s opinion. Alternatively, Nariocan prays that the Court modify

22
the order granting the plea to the jurisdiction to reflect a dismissal “without

prejudice.” Nariocan prays for all other relief to which it has shown itself entitled.

Respectfully submitted,

/s/ Ricardo Pumarejo Jr.
Ricardo Pumarejo Jr.
State Bar No. 24056168
ricardo@pumarejolaw.com
P UMAREJO L AW
1606 W. 42nd Street
Austin, Texas 78756
p. 512.731.7869

Michael Pruneda
State Bar No. 24025601
michael@michaelpruneda.com
THE PRUNEDA LAW FIRM, PLLC
P.O. Box 1664
Pharr, Texas 78577
p. 956.702.9675

Counsel for Appellant

23
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4, I hereby certify that
this petition contains 3,023 words. This is a computer-generated document
created in Microsoft Word, using 14-point typeface for all text, except for any
footnotes which are in 12.5-point typeface. In making this certificate of
compliance, I am relying on the word count provided by the software used to
prepare the document.
/s/ Ricardo Pumarejo Jr.
Ricardo Pumarejo Jr.

24
NARIOCAN ENTERPRISES LLC D/B/A § IN THE FIFTEENTH
CANTU’S PHARMACY §
§
V. § COURT OF APPEALS
§
TEXAS HEALTH AND HUMAN §
SERVICES COMMISSION § AUSTIN, TEXAS

APPENDIX

Tab 1: Order Granting Defendant’s Plea to the Jurisdiction
Tab 2: Order Denying Plaintiff’s Motion to Modify Judgment

25
07/31/2024 11:26:32 AM
Velva L. Price
District Clerk
Travis County
D-1-GN-24-001103
CAUSE NO. D-1-GN-24-001103

NARIOCAN ENTERPRISE LLC d/b/a § IN THE DISTRICT COURT
Cantu’s Pharmacy, §
Plaintiff, §
§
v. § TRAVIS COUNTY, TEXAS
§
TEXAS HEALTH AND HUMAN §
SERVICES COMMISSION, §
Defendant. § 98TH JUDICIAL DISTRICT

ORDER GRANTING DEFENDANT TEXAS HEALTH AND HUMAN SERVICES
COMMISSION’S PLEA TO THE JURISDICTION

On July 30, 2024, the Court heard Defendant Texas Health and Human

Services Commission’s (“HHSC”) Plea to the Jurisdiction. Having considered the above

filings and arguments of counsel, the Court finds HHSC’s Plea to the Jurisdiction should be

granted.

IT IS ORDERED that the HHSC’s Plea to the Jurisdiction is GRANTED.

IT IS FURTHER ORDERED that all claims against the HHSC in the above-styled matter are

DISMISSED WITH PREJUDICE.

SIGNED on July 30, 2024.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Jan Soifer, Judge Presiding

I, VELVA L PRJCE, District C rk., Travis County,
Tex:a , do hereby certify that this Is a rue and
co red copy as same ppears of record in my
offi e. Wllness my hand and sea1 of office
11/26/2024 10:03:34

Cause No. D-1-GN-24-001103
Order Granting Plaintiff’s PTJ

Page 348 Tab 1
10/24/2024 10:20:12 AM
Velva L. Price
District Clerk
Travis County
D-1-GN-24-001103
CAUSE NO. D-1-GN-24-001103

NARIOCAN ENTERPRISE LLC d/b/a § IN THE DISTRICT COURT
Cantu’s Pharmacy, §
Plaintiff, §
§
v. § TRAVIS COUNTY, TEXAS
§
TEXAS HEALTH AND HUMAN §
SERVICES COMMISSION, §
Defendant. § 98TH JUDICIAL DISTRICT

ORDER DENYING PLAINTIFF’S MOTION TO MODIFY JUDGMENT

On October 22, 2024, the Court considered Plaintiff, Nariocan Enterprise LLC d/b/a

Cantu’s Pharmacy’s Motion to Modify Judgment. Having considered the above filing and

response by submission, the Court finds Plaintiff’s Motion is DENIED.

Signed on October 22, 2024.

_____________________
Judge Presiding

Cause No. D-1-GN-24-001103
Order Granting Plaintiff’s PTJ

Tab 2
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.

Ricardo Pumarejo on behalf of Ricardo Pumarejo
Bar No. 24056168
ricardo@pumarejolaw.com
Envelope ID: 99004049
Filing Code Description: Brief Not Requesting Oral Argument
Filing Description:
Status as of 3/28/2025 9:58 AM CST

Associated Case Party: Nariocan Enterprises LLC d/b/a Cantu's Pharmacy

Name BarNumber Email TimestampSubmitted Status

Miguel Pruneda 24025601 michael@michaelpruneda.com 3/28/2025 9:50:23 AM SENT

Ricardo Pumarejo ricardo@pumarejolaw.com 3/28/2025 9:50:23 AM SENT

Associated Case Party: Texas Health and Human Services Commission

Name BarNumber Email TimestampSubmitted Status

Tiffani Collins 24067550 Tiffani.Collins@oag.texas.gov 3/28/2025 9:50:23 AM SENT

Sherlyn Harper 24093176 sherlyn.harper@oag.texas.gov 3/28/2025 9:50:23 AM SENT

Catherine Hughes catherine.hughes@oag.texas.gov 3/28/2025 9:50:23 AM SENT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10834740. Public record. Not legal advice.