In Re Dr. Robert Tafel

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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JUSTICE BUSBY, concurring.

The Court holds that these qui tam claims belong to the State, so

they survive the death of the private relator who brought them. As our

opinion explains, there is no controversy among the parties to this case

regarding the executor’s capacity to proceed with these claims and seek

a share of any proceeds for the relator’s estate.

To the contrary, Bear Creek admits in its brief that the executor

has that authority: if the “qui tam action qualifies as a suit by the

State”—and the “claims thus survived [the relator’s] death—then the

Executrix may continue to litigate the claims” against Bear Creek. 1 And

1 A concurring opinion contends that this unequivocal statement is not

a waiver or admission and develops a potential argument to the contrary

regarding capacity. Post at 8 n.25 (Bland, J., concurring). The parties have

not addressed whether Bear Creek may later change its position regarding the

executor’s capacity—which informed the scope of today’s decision—should it

seek to do so. Accordingly, I express no view on that question.

the State agrees that the executor can “proceed” with these claims

brought “for” and “in the name of the [relator] and of the state.” TEX.

HUM. RES. CODE §§ 36.101(a) (emphasis added), 36.104(b). As it

explains, “both the State of Texas and Lauren Ludlow, the independent

executrix of Dr. Ludlow’s estate, have an interest in the survival and

resolution” of these claims. Not only do the claims stand to benefit the

relator’s estate financially, they help to “ensure that health care

providers are held accountable for unlawful acts and to protect the

integrity of the Texas Medicaid program.”

This agreement is unsurprising given our rules. Texas Rule of

Civil Procedure 150 provides that where, as here, “the cause of action is

one which survives,” the death of a plaintiff does not abate a pending

suit, which “may proceed to judgment” by following certain procedures.

TEX. R. CIV. P. 150. Specifically, the executor “may appear and upon

suggestion of such death being entered of record in open court, may be

made plaintiff, and the suit shall proceed in his or their name.” Id.

R. 151. That is precisely what happened in this case: the trial court

granted the executor’s unopposed motion to be substituted in place of

Dr. Ludlow—not the State—based on her statutory right to possession

of his estate. See TEX. EST. CODE § 101.003; Austin Nursing Ctr. v.

Lovato, 171 S.W.3d 845, 851 (Tex. 2005) (“Lovato acquired the capacity

to sue as the estate’s personal representative when she was appointed

administrator”) (emphasis omitted). Thus, the claims are now

proceeding “for” and “in the name of” the executor (as personal

representative of relator’s estate) as well as the State, and they remain

2

subject to the State’s control. No intervention occurred. Cf. TEX. R. CIV.

P. 60.

A concurring opinion questions whether substituting an executor

in such circumstances would effect an impermissible “transfer, devise,

or assign[ment of] the State’s claims.” Post at 1 (Bland, J., concurring).

Because that unraised issue is likely to arise in future cases, I concur to

offer some additional considerations that may assist parties and courts

in addressing it.

Under the Act, any transfer or assignment of an interest in the

State’s claims occurred when Dr. Ludlow—the “person . . . bring[ing]

[the] civil action”—filed this qui tam suit “for” and “in the name of the

person and of the State.” TEX. HUM. RES. CODE § 36.101(a) (emphases

added). Interpreting the federal qui tam statute, the Supreme Court of

the United States has characterized this occurrence as “a partial

assignment of the Government’s damages claim” rather than a mere

designation of agency, as the statute “gives the relator himself an

interest in the lawsuit, and not merely the right to retain a fee out of the

recovery.” Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529

U.S. 765, 772-73 (2000). 2

2 Federal courts overwhelmingly hold that the relator’s interest in the

government’s claim—together with the ability to continue the suit—survives

to the relator’s heirs. E.g., United States ex rel. Kennard v. Comstock Res., Inc.,

No. 9:98-CV-266-TH, 2009 WL 10709091, at *2-5 (E.D. Tex. Feb. 20, 2009)

(collecting cases). But it seems doubtful that survivability is the correct

conceptual framework for analyzing whether a partial interest in a claim or

other asset lawfully acquired by assignment passes to the assignee’s heirs. For

example, a person’s assigned interest in a debt obligation could surely be

collected by her executor after she dies.

3

Another concurrence highlights the question whether our Act

similarly assigns an interest in the State’s claim to the relator, only

makes the relator the State’s agent, does both, or creates some other

relationship between the parties. Post at 2 (Young & Sullivan, JJ.,

concurring). But the answer to that question, while consequential in its

own right, seems unlikely to matter much to the capacity analysis.

Upon filing this action for himself and the State, Dr. Ludlow

acquired the rights to continue as a party if the State proceeds with the

action, proceed with the action himself if it does not, share in the

proceeds of the action, and recover the fees, costs, and expenses he

incurred in bringing the action. See TEX. HUM. RES. CODE §§ 36.104(b),

36.107(a), 36.110. Importantly, because the State declined to proceed

with the action in the time allotted, a court cannot “limit[]” this “status

and right” of the relator. Id. § 36.104(b-1) (emphasis added).

When Dr. Ludlow later died, nothing further was transferred or

assigned away from the State. Instead, the person representing Dr.

Ludlow’s estate succeeded automatically to the status and rights Dr.

Ludlow previously acquired as relator. See TEX. EST. CODE §§ 101.001,

101.003, 351.054(a), 351.151; TEX. R. CIV. P. 150-151. 3 Under our cases,

this succession appears sufficient to give the executor capacity to

proceed with the action on behalf of the relator plaintiff’s estate. Austin

3 As one concurrence points out, it seems unlikely that Dr. Ludlow’s

executor or heirs could transfer or assign these rights given the statute’s

prohibition on intervention. See TEX. HUM. RES. CODE § 36.106; post at 6

(Bland, J., concurring).

4

Nursing Ctr., 171 S.W.3d at 851. 4 In addition, the State as real party in

interest (and putative principal) has expressed its view that the executor

should continue to “take point in prosecuting” the action “on the State’s

behalf.” Doing so is fully consistent with the statute: it neither alters

the State’s continuing position as a nominal plaintiff and owner of the

claims—albeit one that has not taken over the right to proceed with the

action or sought to participate—nor diminishes the control the State had

over the action before Dr. Ludlow’s death. E.g., TEX. HUM. RES. CODE

§§ 36.101(a), 36.102(e), 36.104(b-1).

J. Brett Busby

Justice

OPINION FILED: June 19, 2026

4 Because the parties do not address the capacity question raised by the

concurrence, we have received no argument regarding whether and to what

extent the probate court might have a role to play in deciding any of the

matters relating to that question.

5