The opinion
Supreme Court of Texas
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No. 24-1062
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In re Dr. Robert Tafel, et al.,
Relators
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On Petition for Writ of Mandamus
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Argued December 3, 2025
JUSTICE BUSBY delivered the opinion of the Court, in which
Justice Lehrmann, Justice Devine, Justice Bland, Justice Young, and
Justice Sullivan joined, and in which Chief Justice Blacklock, Justice
Huddle, and Justice Hawkins joined except as to Part III.A.
JUSTICE BUSBY filed a concurring opinion.
JUSTICE BLAND filed a concurring opinion, in which Chief Justice
Blacklock and Justice Young joined.
JUSTICE YOUNG and JUSTICE SULLIVAN filed a concurring opinion.
The Texas Health Care Program Fraud Prevention Act allows
private persons to bring civil actions for fraud that harms the Texas
Medicaid program. When an action leads to a recovery for the State, the
private person bringing the action—the qui tam relator—receives a
portion of the proceeds in return for their efforts. Here, the qui tam
relator died while the Medicaid fraud suit was pending, and this
mandamus petition asks us to decide whether the pending suit must
therefore be dismissed.
We hold that pending qui tam claims under the Act survive the
relator’s death. Although prosecuted by a private party, these claims
establish liabilities to the State for benefits wrongfully obtained from its
health care programs. Because claims under the Act are on behalf of the
State, they do not extinguish upon the death of the private relator
prosecuting them.
We are also asked to decide whether this suit is prevented from
proceeding by another pending qui tam action or the public disclosure of
Medicaid fraud allegations in that action. We hold the suit can proceed.
The defendants failed to establish conclusively that this suit is based on
the facts underlying the separate pending action, and that action was
not a prior public disclosure of the relevant fraud allegations. Finally,
we hold that the doctrine of dominant jurisdiction does not require
abatement of this suit. We therefore deny the petition.
BACKGROUND
A. Dr. Ludlow sues Bear Creek alleging a Medicaid
fraud scheme he discovered in 2019.
Dr. Scott Ludlow filed the suit underlying this mandamus
proceeding in August 2021. The defendants are Dr. Robert Tafel, a
group of Dallas-area dental practices operating under the name Bear
Creek Family Dentistry, and a related management company and
professional associations (collectively “Bear Creek”).
Dr. Ludlow began working for Bear Creek as a dentist in 2011
and was ultimately promoted in February 2019 to become its Chief
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Dental Officer. Before that promotion, he spent his time at Bear Creek
treating patients and supporting other pediatric dentists. After the
promotion, Dr. Ludlow asserted, he took on administrative duties that
included audit reviews, reviewing internal charts and conducting peer
reviews of other Bear Creek dentists, and assisting in compliance
matters. As his administrative responsibilities as Chief Dental Officer
expanded after February 2019, Dr. Ludlow spent more time on clinical
compliance issues and performing chart reviews of Bear Creek dentists.
This is when Dr. Ludlow claims he learned of Bear Creek’s alleged fraud,
waste, and abuse affecting the Texas Medicaid program.
According to Dr. Ludlow, individual Bear Creek dentists
performed unnecessary treatments on patients as part of a concerted
scheme directed by Dr. Tafel for which Bear Creek sought
reimbursement from the Texas Medicaid program:
The primary focus of Dr. Tafel and his management team
was to pressure dentists to excessively utilize dental
procedures under certain procedures codes established by
the American Dental Association (“ADA Codes”). The main
codes Dr. Tafel pressured dentists to use were ADA Codes
for tooth fillings or “Class 1 Fillings.” The ADA Codes for
such fillings were D2391 and D2392. In face-to-face
“production meetings,” Dr. Tafel or someone from the
management team would pressure and intimidate dentists
that he felt were under-utilizing these ADA Codes.
(Cleaned up.) Dr. Ludlow also claimed that Dr. Tafel hired new dentists
with student-loan debt that he compensated based on collections,
making them more likely to follow these instructions. Dr. Ludlow
alleged that this scheme resulted in Bear Creek billing the Texas
Medicaid program for fillings that were performed but not medically
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necessary and later billing to redo those fillings, which had been
performed in a hurried manner with low-quality materials.
B. Bear Creek seeks dismissal based on a 2012 Medicaid
fraud action by another qui tam relator and on Dr.
Ludlow’s death.
Bear Creek filed an amended plea to the jurisdiction, arguing that
the same allegations against it were already being litigated in a separate
pending action in Travis County. Thus, according to Bear Creek, Dr.
Ludlow’s suit could not proceed under provisions of the Texas Health
Care Program Fraud Prevention Act addressing earlier-filed actions and
publicly disclosed allegations. Bear Creek alternatively moved to abate
and argued that the Travis County court presiding over the separate
action had dominant jurisdiction over Dr. Ludlow’s suit.
The separate pending action was a Medicaid fraud suit that
Joshua LaFountain brought nine years earlier against many of the Bear
Creek parties. LaFountain filed his suit in 2012 in Travis County
(Cause No. D-1-GV-12-000277), and he included claims against an
affiliate of Xerox Corporation that processed the reimbursement
requests. State v. Ellis, 681 S.W.3d 501, 504, 506 (Tex. App.—Austin
2023, no pet.). LaFountain alleged a similar scheme that Dr. Tafel
directed dentists to perform invasive dental treatments regardless of
medical necessity, especially pulpotomies, stainless steel crowns, and
deep cleaning or “scaling,” resulting in Bear Creek dental practices
becoming state leaders in amounts billed to Medicaid for these
procedures. Like Dr. Ludlow, LaFountain alleged that Bear Creek
dentists were receptive to these instructions because they were in debt
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following dental school and being paid by Bear Creek based on a
percentage of collections.
LaFountain’s action was one of three filed under the Act in early
2012 against Xerox Corporation or its affiliates concerning alleged
Medicaid fraud in the provision of dental and orthodontic services and
related payment processing. Id. at 506. The State eventually filed its
own action against Xerox in 2014, alleging that it fraudulently operated
payment review processes while serving as the administrator for the
Texas Medicaid program. Id. at 506-07. In February 2019—the same
month Dr. Ludlow was promoted as Bear Creek’s Chief Dental Officer—
Xerox Corporation and its subsidiaries agreed to a $235.9 million
settlement to resolve the State’s suit. Following this settlement,
LaFountain intervened in the State’s action and claimed that he was
entitled to a portion of the State’s recovery because the State’s claims
against Xerox were based on allegations in his 2012 Travis County
action. Id. at 507. 1 In the Travis County action, the trial court granted
summary judgment against LaFountain after striking his experts as
1 The trial court ultimately awarded LaFountain a portion of the State’s
recovery against Xerox after denying the State’s motion for summary
judgment, which argued that LaFountain’s Travis County action was barred
by the prior public disclosure of similar allegations against Xerox in news
reports and legislative hearings, among other sources. The Fifteenth Court of
Appeals recently reversed the trial court’s award of a share of the Xerox
proceeds to LaFountain and rendered judgment for the State on LaFountain’s
claim in intervention. State v. Alvarez, ___ S.W.3d ___, 2026 WL 942691 (Tex.
App.—15th Dist. Apr. 7, 2026, no pet. h.). We express no view on the merits of
that decision.
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untimely designated, and LaFountain has an appeal pending in the
Fifteenth Court of Appeals. 2
Meanwhile, before Bear Creek’s plea to the jurisdiction could be
heard in this suit, Dr. Ludlow passed away. The trial court granted a
motion to substitute his widow Lauren Ludlow to prosecute the case as
a representative of his estate. Bear Creek filed a traditional motion for
summary judgment and a supplement to its amended plea to the
jurisdiction, arguing that the suit must be dismissed because the claims
“extinguished” upon Dr. Ludlow’s passing. Lauren Ludlow and the
State of Texas opposed Bear Creek’s motion for summary judgment,
arguing that the pending claim is survivable. The State’s opposition
emphasized the State’s interest in the outcome of the pending action and
its right to intervene in the case, settle the claims against Bear Creek,
and recover a portion of the proceeds of the action. The State did not file
an opposition to Bear Creek’s plea to the jurisdiction or alternative
motion to abate.
The trial court denied Bear Creek’s plea to the jurisdiction and
alternative motion to abate and motion for summary judgment. Bear
Creek challenged these rulings by filing a petition for writ of mandamus
with the court of appeals, which denied the petition. This mandamus
petition followed.
2 State ex rel. LaFountain v. BLT Mgmt. Co., No. 15-25-00067-CV, Court
of Appeals for the Fifteenth District of Texas.
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STANDARD OF REVIEW
The extraordinary remedy of mandamus is available only on a
showing that the trial court clearly abused its discretion and that there
is no adequate appellate remedy. In re Kappmeyer, 668 S.W.3d 651, 654
(Tex. 2023). A trial court clearly abuses its discretion when its ruling
fails to apply the law correctly. Id. at 655.
Mandamus is “generally unavailable when a trial court denies
summary judgment.” In re Academy, Ltd., 625 S.W.3d 19, 32 (Tex. 2021)
(quoting In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 465 (Tex. 2008)).
This general rule recognizes that many summary judgments do not
implicate substantive rights—like a party’s right to arbitration or the
right to be represented by its chosen attorney—that would be defeated
if trial proceeded. McAllen Med. Ctr., 275 S.W.3d at 465-66. The rule
also prevents undue interference with trial court proceedings by adding
to the expense and delay of civil litigation through parallel appellate
proceedings. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex.
2004). But mandamus relief can be appropriate when the act of
proceeding to trial defeats a substantive right that cannot be protected
by a normal appeal, as when a party is forced to defend a suit despite
Congress immunizing it from such suits. Academy, 625 S.W.3d at 35;
accord In re Facebook, Inc., 625 S.W.3d 80, 87 (Tex. 2021).
The Legislature has provided for interlocutory appellate review
of trial court rulings on pleas to the jurisdiction by governmental units,
but that statute does not apply here. See TEX. CIV. PRAC. & REM. CODE
§ 51.014(a)(8). We have recognized that “the hardship of a full-blown
trial” is not sufficient to warrant mandamus relief from the denial of
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other pleas to the jurisdiction absent “unique circumstances
mandat[ing] the Court’s intervention,” such as exclusive agency
jurisdiction over the dispute. In re Entergy Corp., 142 S.W.3d 316, 321
(Tex. 2004); see also In re Crawford & Co., 458 S.W.3d 920, 929 (Tex.
2015) (per curiam).
ANALYSIS
I. A pending qui tam action survives the relator’s death.
A. Qui tam claims belong to the State.
Bear Creek’s first issue concerns whether a pending qui tam
action under the Texas Health Care Program Fraud Prevention Act
survives the relator’s death when the State has not chosen to intervene
as a party. Because the Act does not address survivability, Bear Creek
argues that such a claim does not survive under the common-law rule
that “all causes of action for damages die with the person of the party
injured, or the person inflicting the injury, except such damages as grow
out of acts affecting the property rights of the injured party.” Belt v.
Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780, 784 (Tex.
2006).
According to Bear Creek, qui tam actions under the Act are
personal and punitive in nature—not property-based—and must be
dismissed under this rule upon the death of the individual prosecuting
the action. 3 But if pending claims under the Act instead qualify as suits
3 Bear Creek raised this issue in a motion for summary judgment, and
it contends we may consider the denial of the motion via mandamus partly
because the trial court lost subject-matter jurisdiction when Dr. Ludlow died.
We need not determine whether survivability is a jurisdictional question
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by the State even if it has not yet intervened, Bear Creek asks us to
determine whether common-law survivability principles are
inapplicable. To resolve the question whether claims in a qui tam action
must be dismissed upon a private relator’s death, we start with the
provisions of the Act that authorize and govern these claims.
The Act prohibits misrepresentations to the Texas Medicaid
program to obtain an unauthorized benefit. See TEX. HUM. RES. CODE
§ 36.002(1). Private persons are authorized to pursue civil actions for
violations of this prohibition. Id. § 36.101. If the private relator
bringing the action establishes that an unlawful act was committed, the
person committing the unlawful act “is liable to the state.” Id.
§§ 36.052(a), 36.101(b). Actions initiated by private persons under the
Act are therefore brought “for the person and for the state” and “in the
name of the person and of the state.” Id. § 36.101(a).
The Act gives the State substantial powers over a private relator’s
qui tam action, including the right to “proceed with the action” early in
the suit. Id. § 36.102(c). The State may also participate in the action
later upon good cause shown, id. § 36.104(b-1), which surely includes the
relator’s death. The State may settle the action with the defendant over
the relator’s objection. Id. § 36.107(c). And the relator lacks control over
the disposition of the claims: private actions under the Act can be
dismissed only if the “court and the attorney general consent in writing
to the dismissal and state their reasons for consenting.” Id. § 36.102(e).
because we conclude Bear Creek is not entitled to mandamus relief for the
reasons that follow.
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Private relators have an incentive to bring these actions because
they can receive a portion of the State’s proceeds. Id. § 36.110. But a
relator’s potential entitlement to compensation does not change the
nature of a civil suit under the Act, which seeks to prove that a
defendant is “liable to the state” for sums including “the amount of any
payment or the value of any monetary or in-kind benefit” received from
Texas Medicaid and similar health care programs because of unlawful
acts committed against those programs. Id. § 36.052(a). 4
These statutory provisions show that the claims pending in the
trial court for violations of Section 36.002 are not Dr. Ludlow’s but the
State’s. We therefore reject Bear Creek’s argument that the underlying
proceeding must be dismissed because the qui tam claims extinguished
upon the relator’s death under the common-law survivability rule that
personal claims “die with the person of the party injured, or the person
inflicting the injury.” Belt, 192 S.W.3d at 784. The State is the party
allegedly injured; it is still very much in existence and has filed a brief
in this Court opposing summary judgment. Similarly, the Bear Creek
defendants inflicted the alleged injuries, and all are still alive or
continue to exist. Thus, there is no survivability question to be decided,
and we need not conduct a common-law analysis of whether the claim is
personal or property-based.
4 This Court has long treated actions filed by qui tam relators as
justiciable. See, e.g., Malouf v. State ex rel. Ellis, 694 S.W.3d 712, 716 (Tex.
2024); Mo. Pac. Ry. v. Shuford, 10 S.W. 408, 411 (Tex. 1888); Doss v. State, 6
Tex. 433, 434 (1851). The parties before us have not questioned justiciability
in any court, and we decline to exercise our discretion to address it in denying
this mandamus petition. See In re Coppola, 535 S.W.3d 506, 510 (Tex. 2017).
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In sum, the claims against Bear Creek are for injury and liability
to the State, brought in its name and subject to its control, and neither
the State nor the Bear Creek defendants have ceased to exist.
Accordingly, the qui tam claims pending in the trial court survived Dr.
Ludlow’s death. The trial court did not abuse its discretion in denying
Bear Creek’s motion for summary judgment asserting that the claims
extinguished upon Dr. Ludlow’s death.
B. Bear Creek has not challenged capacity.
According to Bear Creek’s brief, if a qui tam action brought by a
private relator “qualifies as a suit by the State” such that common-law
“survivability principles do not apply—and the . . . claims thus survived
[Dr.] Ludlow’s death—then the Executrix [of his estate, Lauren Ludlow,]
may continue to litigate the claims.” In this Court, neither the parties
nor the State say anything against either the executor’s ability to
proceed with the action, see TEX. HUM. RES. CODE § 36.104(b); TEX. R.
CIV. P. 150-151, or the estate’s continued interest in a share of any
proceeds recovered, see TEX. HUM. RES. CODE § 36.110; TEX. EST. CODE
§§ 101.003, 351.151.
Nor was any such issue presented to the trial court, so there has
been no exercise of discretion that we can review by mandamus.
Whether the personal representative of a deceased person may act on
behalf of that person’s estate is a question of capacity. Austin Nursing
Ctr. v. Lovato, 171 S.W.3d 845, 848-49 (Tex. 2005). Capacity must be
challenged by filing a verified plea. See TEX. R. CIV. P. 93; In re UMTH
Gen. Servs., L.P., 725 S.W.3d 424, 429-430 & n.22 (Tex. 2025). The
record does not disclose that such a plea raising capacity has been filed.
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Our adversary system of justice “depends on the parties to frame
the issues for decision and assign[s] to courts the role of neutral arbiter
of matters the parties present.” Pike v. Tex. EMC Mgmt., LLC, 610
S.W.3d 763, 782 (Tex. 2020) (alteration in original) (quoting Greenlaw v.
United States, 554 U.S. 237, 243 (2008)). 5 The Supreme Court of the
United States refers to this understanding of the judicial role as “the
principle of party presentation.” Clark v. Sweeney, 607 U.S. 7, 9-10
(2025). “If a party passes up what seems to us a promising argument,
we do not assume the role of advocate.” Trump v. Illinois, 146 S. Ct.
432, 437 (2025) (Alito, J., dissenting). Instead, the “adversary system is
designed around the premise that the parties know what is best for
them.” Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J.,
concurring in part and concurring in the judgment). Because the parties
confine their challenge in this Court to the survival of the claim, we do
not address capacity.
II. Bear Creek has not conclusively established that the first-
to-file bar applies to this suit.
We next consider whether this suit is “based on the facts
underlying” LaFountain’s still-pending 2012 suit and therefore is
5 See also City of Houston v. Rodriguez, 704 S.W.3d 462, 471 n.35 (Tex.
2024); In re Off. of Att’y Gen., 702 S.W.3d 360, 366 (Tex. 2024); Powell v. City
of Houston, 628 S.W.3d 838, 843 (Tex. 2021) (“We do not seek out issues but
‘wait for the cases to come to us, and when they do we normally decide only
questions presented by the parties.’” (quoting In re Abbott, 601 S.W.3d 802,
809-810 (Tex. 2020) (quoting Greenlaw, 554 U.S. at 244))).
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prevented from proceeding by the so-called “first-to-file” bar. 6 Bear
Creek asserts that it is and sought dismissal on that basis in a plea to
the jurisdiction. Without deciding whether the first-to-file bar’s
prohibition on “bring[ing] a related action” based on the same
underlying facts is jurisdictional, see TEX. HUM. RES. CODE § 36.106, we
consider its application as “a pure issue of law pertaining to the merits”
of Bear Creek’s request to dismiss the underlying action. See Tex. Med.
Res., LLP v. Molina Healthcare of Tex., Inc., 659 S.W.3d 424, 439-441
(Tex. 2023) (considering non-jurisdictional legal issue improperly raised
in plea to the jurisdiction). Our review of the issue “mirrors that of a
traditional summary judgment motion,” requiring Bear Creek to prove
conclusively that the first-to-file bar applies. Mission Consol. Indep. Sch.
Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012).
The parties disagree about how a court should determine whether
one action under the Act is “based on the facts underlying” another. See
TEX. HUM. RES. CODE § 36.106. Bear Creek argues that the Ludlow suit
cannot proceed because it is based on the same alleged overarching
scheme led by Dr. Tafel of performing unnecessary dental procedures
and billing them to Medicaid. According to Bear Creek, these are the
“essential facts” and “material elements” that would drive the inquiry in
a federal False Claims Act case under United States ex rel. Branch
Consultants v. Allstate Ins. Co., 560 F.3d 371, 378 (5th Cir. 2009).
Federal courts apply the False Claims Act’s first-to-file bar if the first-
6 See TEX. HUM. RES. CODE § 36.106 (“A person other than the state may
not intervene or bring a related action based on the facts underlying a pending
action brought under this subchapter.”).
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filed suit provides sufficient information for the federal government “to
discover related frauds.” Id. (quoting United States ex rel. LaCorte v.
SmithKline Beecham Clinical Lab’ys, Inc., 149 F.3d 227, 234 (3d Cir.
1998)); accord United States v. Planned Parenthood of Houston, 570 F.
App’x 386, 389 (5th Cir. 2014). Lauren Ludlow responds that this suit
is not based on the “facts underlying” LaFountain’s action because it
concerns different transactions resulting in impermissible benefits and
payments to Bear Creek.
Neither standard is correct. Nothing in the text of the Act’s first-
to-file bar indicates that it applies based on a court’s inference that an
earlier suit would facilitate the government’s discovery of related frauds.
Nor does the text indicate that so long as a suit targets separate
transactions or instances of fraudulent conduct, it will not be “based on
the facts underlying” another suit concerning an identical fraudulent
scheme by the same actors at the same time.
Instead, we conclude that the “facts underlying a pending action”
are “core allegations” necessary to establish that the Act has been
violated. Cf. In re Oncor Elec. Delivery Co., 716 S.W.3d 525, 532 (Tex.
2025) (describing the standard courts apply in considering a Rule 91a
motion). Like the standard courts apply in determining whether a
petition alleges a health care liability claim, the inquiry “focus[es] on the
set of operative facts underlying the claim that are relevant to the
alleged injury, not on how the plaintiff’s pleadings describe the facts or
legal theories asserted.” Collin Creek Assisted Living Ctr., Inc. v. Faber,
671 S.W.3d 879, 885 (Tex. 2023) (internal quotation marks omitted). As
the movant, Bear Creek has the burden to show conclusively that these
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essential operative facts are materially the same. Mission Consol., 372
S.W.3d at 634.
It is not enough that Dr. Ludlow’s and LaFountain’s pleadings
allege a scheme directed by Dr. Tafel to perform unnecessary dental
treatments and bill them to Medicaid, as the alleged violations could be
committed at such different times and through such different means
that they constitute two separate schemes. We must therefore consider
the extent of the overlapping allegations and any differences to
determine whether Bear Creek has conclusively shown that the Ludlow
suit alleges merely additional aspects of the same fraudulent scheme
rather than identifying a new one.
One key difference is that Dr. Ludlow filed this suit in 2021, more
than nine years after LaFountain’s action. Dr. Ludlow and LaFountain
also overlapped very little during their respective employment with
Bear Creek: LaFountain worked there from 2004 to 2012, and Dr.
Ludlow from late 2011 to 2021. The two relators also describe first
observing an alleged fraud scheme fifteen years apart. LaFountain
began his Bear Creek employment in 2004 as an office manager for one
of its dental clinics and alleges that he observed Medicaid fraud the
same year. Dr. Ludlow began as a dentist at Bear Creek and described
learning of Medicaid fraud only after his promotion to a new
administrative leadership role in February 2019. The Ludlow suit also
includes five additional defendants not in LaFountain’s suit, while
LaFountain sued a Xerox affiliate and a professional corporation not in
the Ludlow suit.
15
That two suits generally cover different time periods is not alone
dispositive of whether the first-to-file bar applies; a scheme, especially
one that is successfully concealed, can last a long time. But the
difference in timing is notable here given that the two relators reported
learning of fraud schemes fifteen years apart. This significant time gap
requires further inquiry to determine whether defendants common to
both suits engaged in separate schemes with similar goals but employed
different essential means. And that inquiry reveals an important
development during the gap: Dr. Ludlow reported learning of the
underlying fraud in February 2019—the same month that the State of
Texas announced a nine-figure settlement with Xerox and affiliates,
including the Xerox defendant in LaFountain’s suit, concluding a period
of enormous scrutiny of dental and orthodontic Medicaid service
providers and claim processors. LaFountain was initially awarded a
portion of that settlement based on the allegations in his 2012 action,
which the court of appeals recently reversed. See Alvarez, ___ S.W.3d
___, 2026 WL 942691, at *7-14. Before the State and Xerox settled, the
State “vigorously opposed [Xerox’s] efforts to bring the Medicaid service
providers into the Xerox litigation” after Xerox argued that the providers
were the recipients of any disputed Medicaid payments processed by
Xerox. In re Xerox Corp., 555 S.W.3d 518, 521 (Tex. 2018).
Thus, at the same time Dr. Ludlow claims he learned of a
fraudulent scheme at Bear Creek to perform unnecessary dental
services for reimbursement by Medicaid, the State of Texas had just
announced “the largest single resolution in a case filed by the attorney
general’s office for Medicaid-related claims” with one of Bear Creek’s co-
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defendants in LaFountain’s 2012 suit. Given the substantial statewide
scrutiny of claims by Medicaid dental and orthodontic providers between
LaFountain’s employment at Bear Creek from 2004 to 2012 and Dr.
Ludlow’s promotion to an administrative role at Bear Creek in 2019, it
is quite possible that any alleged Medicaid fraud scheme existing at
Bear Creek in 2019 was newer, more sophisticated, or had changed in
some material way in response to the seismic transformation in the
regulatory landscape in the years leading up to the State’s
$235.9 million settlement with a co-defendant in LaFountain’s suit.
Comparing the petitions in the two actions indicates that such a
material change did occur: the Ludlow suit alleges a narrower fraud
scheme that emphasizes less invasive procedures. This suit alleges that
Bear Creek’s primary fraud method is performing and billing for
unnecessary tooth fillings and sending corresponding fraudulent bills
for payment to Medicaid under American Dental Association Billing
Codes D2391 and D2392. It alleges that these fillings were not
performed based on patient needs but on Bear Creek’s standing
treatment plan to place fillings on every posterior tooth either in a single
appointment or over a one-to-two-year period regardless of the patient’s
needs. According to Dr. Ludlow, Dr. Tafel pressured and intimidated
dentists to generate more bills under these two codes.
The Ludlow suit also alleges that Dr. Tafel instructed Bear Creek
dentists more generally to “[l]eave no tooth untouched,” “[p]ut a filling
in every groove,” “[p]ut a root canal under every crown,” and that every
patient who had not visited the dentist recently needed “scaling.”
LaFountain’s suit includes similar allegations—including Dr. Tafel’s “no
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tooth untouched” motto—and identifies specific Bear Creek dentists who
performed unnecessary fillings, scaling, and crowns. But LaFountain’s
suit emphasizes the over-utilization of other billing codes for
pulpotomies (D3220), stainless steel crowns (D2930-34), administering
nitrous oxide (D9230), and certain evaluation and preventative services
(D145) as the primary instances of fraud against the Medicaid program.
According to LaFountain, Bear Creek clinics were among state leaders
in the millions of dollars billed to Medicaid under these codes during
2011, the year preceding LaFountain’s action and the State’s
investigation of a co-defendant in his suit. LaFountain also alleged that
Dr. Tafel directed dentists who were not credentialed with Medicaid to
submit Medicaid claims using Dr. Tafel’s Medicaid credentials. Another
key component of the scheme LaFountain alleges is the performance of
highly invasive and medically unnecessary procedures on children and
Bear Creek’s programmatic efforts to conceal the children’s suffering
during these painful procedures from parents.
Although there is some overlap between the core allegations of
the two suits, Bear Creek has failed to conclusively establish that Dr.
Ludlow’s action is based on the essential facts underlying LaFountain’s
suit rather than a narrower, more sophisticated fraudulent scheme that
Bear Creek developed to skirt the increased scrutiny over Medicaid
dental and orthodontic service providers during the period leading up to
the Xerox settlement and Dr. Ludlow’s promotion to an administrative
leadership role at Bear Creek in 2019. At this stage, at least, it is not
clear that Dr. Ludlow has merely alleged further instances of the same
scheme rather than identified a new scheme. Accordingly, we hold that
18
the trial court did not clearly abuse its discretion in concluding that the
Ludlow suit was not “based on the facts underlying” LaFountain’s
earlier action and thus the first-to-file bar did not prevent it from
proceeding.
III. The public-disclosure bar does not apply to this suit.
Bear Creek also contends that LaFountain’s suit “publicly
disclosed” “substantially the same allegations or transactions” as those
later alleged in the Ludlow suit, which must be dismissed. TEX. HUM.
RES. CODE § 36.113(b). Again, Bear Creek raised this “public-disclosure
bar” in its plea to the jurisdiction, and we address the merits of the issue
without deciding whether the bar is jurisdictional. See Molina, 659
S.W.3d at 439-441.
For the reasons discussed above, we conclude that the allegations
in the two suits are not “substantially the same.” But even if they were,
the public-disclosure bar would not apply for two reasons. First, the bar
does not apply to private civil actions in which the State is not a party.
TEX. HUM. RES. CODE § 36.113(b). Second, it does not apply if the
Attorney General opposes dismissal, as he does here.
A. The bar does not apply to private civil actions in
which the State is not a party.
The Act’s public-disclosure bar provides:
The court shall dismiss an action or claim under this
subchapter, unless opposed by the attorney general, if
substantially the same allegations or transactions . . . were
publicly disclosed in a Texas or federal criminal or civil
hearing in which the state or an agent of the state is a
party, in a Texas legislative or administrative report, or
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other Texas hearing, audit, or investigation, or from the
news media . . . .
Id.
Bear Creek does not assert that the bar applies because the State
is a party to the LaFountain action, and it appears that the State
ultimately declined to intervene in that action, which LaFountain
continues to pursue in the Fifteenth Court of Appeals. Nor does
LaFountain’s live pleading constitute a disclosure from the news media,
a Texas legislative or administrative report, or a Texas audit or
investigation. Bear Creek’s contention that the public-disclosure bar
applies thus assumes that LaFountain’s pleading is “[an]other Texas
hearing.” Id. We disagree.
We apply the plain meaning of undefined statutory terms unless
that meaning leads to absurd results or another meaning is apparent
from the statutory context. Creative Oil & Gas, LLC v. Lona Hills
Ranch, LLC, 591 S.W.3d 127, 133 (Tex. 2019). When a term is
undefined, “we generally consult dictionaries for the term’s commonly
understood meaning.” Morath v. Lampasas Indep. Sch. Dist., 686
S.W.3d 725, 735 (Tex. 2024). We may also consider former versions
when construing statutes. TEX. GOV’T CODE § 311.023(4). Here, the
ordinary meaning of “hearing,” the statutory context, and prior versions
of the public-disclosure bar all confirm that LaFountain’s state-court
civil pleadings are not a “Texas hearing” for purposes of the public
disclosure bar.
A hearing is commonly understood as a “formal, scheduled setting
in which an affected person presents arguments to a decision-maker.”
Hearing, BLACK’S LAW DICTIONARY (12th ed. 2024). Hearings often occur
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before members of the judicial, legislative, or executive branches of
government. A hearing before the judicial branch is commonly
understood as a “judicial session, usu[ally] open to the public, held for
the purpose of deciding issues of fact or of law, sometimes with witnesses
testifying.” Id. And a legislative hearing is a “proceeding in which
legislators or their designees receive testimony about legislation that
might be enacted.” Id. None of these dictionary definitions encompass
a pleading filed in a Texas court.
Even if the term “hearing” could include writings filed in civil
actions, reading the term “other Texas hearing” in context confirms that
it would apply only to actions in which the State is a party. The phrase
“other Texas hearing” is part of a list of proceedings—including reports,
audits, and investigations—conducted by or before the “legislative”
branch or an “administrative” agency. Construing “other Texas
hearing” to include all “Texas civil hearings” would nullify the earlier
provision in this subsection limiting civil court hearings triggering the
public-disclosure bar to those in which the State is a party. That
construction would also render surplusage the first-to-file bar and its
limitation to pending actions.
Comparing the current statute against prior versions confirms
that “other Texas hearing” does not include private civil actions. The
version enacted in 1997 applied broadly to Texas and federal
governmental proceedings in all three branches:
A person may not bring an action under this subchapter
that is based on the public disclosure of allegations or
transactions in a criminal or civil hearing, in a legislative
or administrative report, hearing, audit, or investigation, or
from the news media . . . .
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Act of June 1, 1997, 75th Leg., R.S., ch. 1153, § 4.08, 1997 Tex. Gen.
Laws 4328, 4348 (emphases added) (amended 2011) (current version at
TEX. HUM. RES. CODE § 36.113(b)). This version covered all hearings—
criminal, civil, federal, and state—regardless of whether the State or
any governmental entity was a party to the hearing or action. Thus, the
“criminal or civil hearing” prong of the public-disclosure bar initially
covered all judicial proceedings. And the remaining references to
governmental proceedings—“a legislative or administrative report,
hearing, audit, or investigation”—encompassed public proceedings
before the other two branches of government.
Then, in 2011, an amendment limited the relevant judicial
proceedings triggering the public-disclosure bar to those in which the
State or its agent was a party:
A person may not bring an action . . . based on the public
disclosure of allegations or transactions in a criminal or
civil hearing in which the state or an agent of the state is a
party, in a legislative or administrative report, hearing,
audit, or investigation, or from the news media . . . .
Act of May 23, 2011, 82d Leg., R.S., ch. 398, § 5, 2011 Tex. Gen. Laws
1054, 1056 (emphasis altered) (current version at TEX. HUM. RES. CODE
§ 36.113(b)). This amendment narrowed the category of judicial
proceedings to which the public-disclosure bar applies, but it did not
change the provision concerning public proceedings before the other
branches.
The statute was amended once more in 2013 to reach its current
form. These amendments clarified that the relevant criminal or civil
hearings in which the State is a party include “Texas or federal”
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hearings, and they removed federal government proceedings before the
other branches:
The court shall dismiss an action or claim under this
subchapter, unless opposed by the attorney general, if
substantially the same allegations or transactions as
alleged in the action or claim were publicly disclosed in a
Texas or federal criminal or civil hearing in which the state
or an agent of the state is a party, in a Texas legislative or
administrative report, or other Texas hearing, audit, or
investigation, or from the news media . . . .
TEX. HUM. RES. CODE § 36.113(b) (emphases added).
This statutory evolution confirms that the “other Texas hearing”
language on which Bear Creek relies has never referred to judicial
proceedings but rather hearings before the other branches. It does not
apply to public disclosures in LaFountain’s petition in the 2012 Travis
County action.
B. The bar does not apply because the Attorney
General opposes dismissal.
We also conclude that the public-disclosure bar does not require
dismissal of the underlying proceeding because the Attorney General
opposes dismissal. Id. (“[t]he court shall dismiss an action . . . unless
opposed by the attorney general”). The Attorney General opposed Bear
Creek’s motion for summary judgment in the underlying proceeding and
asks this Court to deny mandamus given the State’s “interest in the
survival and resolution of Dr. Ludlow’s claims to ensure that health care
providers are held accountable for any unlawful acts and to protect the
integrity of the Texas Medicaid program.” Denying mandamus relief
would leave in place the trial court orders denying Bear Creek’s motion
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for summary judgment and plea to the jurisdiction and allow this case
to proceed.
* * *
Because the Attorney General opposes dismissal and the public-
disclosure bar does not apply to pleadings in private civil actions in
which the State is not a party, the trial court did not clearly abuse its
discretion in refusing to dismiss the underlying proceeding under the
Act’s public-disclosure bar.
IV. The Travis County court does not have dominant
jurisdiction over the Ludlow suit.
Bear Creek alternatively argues that the trial court abused its
discretion by denying Bear Creek’s request to abate the Ludlow suit
because Travis County acquired dominant jurisdiction in 2012 when
LaFountain filed his Travis County suit.
When there is “an inherent interrelation of the subject matter”
between two pending lawsuits, the doctrine of dominant jurisdiction
requires the later-filed suit to be abated. Wyatt v. Shaw Plumbing Co.,
760 S.W.2d 245, 247 (Tex. 1988). “It is not required that the exact issues
and all the parties be included in the first action . . . , provided that the
claim in the first suit may be amended to bring in all necessary and
proper parties and issues.” Id.; see also In re King, 478 S.W.3d 930, 933
(Tex. App.—Dallas 2015, orig. proceeding) (“to prevail on a motion to
abate in a second-filed suit, a movant must establish . . . the first-filed
suit does include, or could be amended to include, all of the parties”).
Bear Creek has not established that LaFountain’s pending action
can be amended to include the Ludlow parties and issues. LaFountain
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lost his Travis County action on summary judgment and his appeal is
now pending before the Fifteenth Court of Appeals. Rather than
arguing that LaFountain’s action can be amended to include Ludlow,
Bear Creek takes the opposite position. If the Fifteenth Court of
Appeals affirms the judgment against LaFountain, Bear Creek contends
that the Ludlow suit would be precluded by res judicata even though Dr.
Ludlow was never a party and did not know about LaFountain’s action,
which proceeded for years under seal. And if the Fifteenth Court instead
reverses the judgment, the Act is clear that private persons “may not
intervene” in the LaFountain action while it remains pending. TEX.
HUM. RES. CODE § 36.106.
Because Bear Creek has not established that LaFountain’s suit
includes or could be amended to include the Ludlow parties and issues,
the trial court did not abuse its discretion in denying Bear Creek’s
alternative motion to abate the underlying proceeding. Having
addressed each of Bear Creek’s issues, we deny its petition for writ of
mandamus.
J. Brett Busby
Justice
OPINION DELIVERED: June 19, 2026
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