In Re Dr. Robert Tafel

Supreme Court of Texas

══════════

No. 24-1062

══════════

In re Dr. Robert Tafel, et al.,

Relators

═══════════════════════════════════════

On Petition for Writ of Mandamus

═══════════════════════════════════════

JUSTICE BLAND, joined by Chief Justice Blacklock and Justice

Young, concurring.

The Court holds that qui tam claims survive a relator’s death

because the State owns and ultimately directs these claims, and I agree.

The statute authorizing such claims makes no provision, however, for a

qui tam relator to transfer, devise, or assign the State’s claims to

another. The relator instead acts on the State’s behalf in exchange for a

share of the proceeds the State recovers to redress the State’s injury.

The statute bars third-party intervention into the suit. Given our

Court’s wariness of delegations of public authority to private actors, we

should interpret the statute as granting only those powers expressed

within it.

The parties did not argue capacity before the trial court, and thus

the Court properly declines to address the executor’s capacity to

prosecute this suit. I accordingly join its opinion. I write separately to

observe the differences between the survival of the State’s claim and an

executor’s capacity to pursue it.

I

Dr. Scott Ludlow brought a qui tam suit as a statutory relator

against Dr. Robert Tafel and his dental practices. Ludlow alleges that

Tafel sought reimbursement from the Texas Medicaid program for

unnecessary dental treatment in violation of the Texas Health Care

Program Fraud Prevention Act. Ludlow died while suit was pending.

The trial court then permitted the executor of Ludlow’s estate to take

his place as the qui tam relator.

Tafel moved for summary judgment, arguing that relator status

does not survive the relator’s death or transfer by inheritance and thus

the suit must be dismissed. The State filed a “Statement of Interest”

asserting it had the right to object to Tafel’s summary judgment motion

because: (1) it retains the right to intervene; (2) it may settle with the

defendant over the relator’s objection; (3) it is entitled to any recovery

obtained; (4) the relator has no right to dismiss the action without the

State’s consent; and (5) it “retains the broad authority . . . to dismiss the

action ‘notwithstanding the objections’ of the relator.” 1 The trial court

denied the motion, the court of appeals denied mandamus relief, and

this proceeding followed.

II

As the State told the trial court: “A [qui tam] claim belongs to the

State.” For the reasons stated in the Court’s opinion, I agree. Whether

1 See Tex. Hum. Res. Code §§ 36.104(b-1), .107, .110.

2

the Act authorizes some other private individual to pursue the State’s

claim in the name of the relator is a different question. Every textual

indication at this preliminary review supports the conclusion that it

does not.

The statute does not grant the relator the right to assign the claim

to another or pass it through inheritance. If such a right exists, it must

be implied from the powers expressly delegated. Two rules of

construction guide the analysis. First, in delegating state authority, the

Legislature confers only those powers identified by express statutory

language and those necessary to fulfill an identified function or duty. 2

Second, “courts should subject private delegations [of state authority] to

a more searching scrutiny than their public counterparts.” 3

2 See Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212,

220 (Tex. 2002) (noting administrative agencies “may exercise only those

powers the law, in clear and express statutory language, confers upon them”);

City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003) (“[A]

commissioners court may exercise only those powers expressly given by either

the Texas Constitution or the Legislature.”); Town of Lakewood Vill. v. Bizios,

493 S.W.3d 527, 531 (Tex. 2016) (“[G]eneral-law municipalities . . . ‘are

political subdivisions created by the State and, as such, possess [only] those

powers and privileges that the State expressly confers upon them.’” (second

alteration in original) (quoting Tex. Dep’t of Transp. v. City of Sunset Valley,

146 S.W.3d 637, 645 (Tex. 2004))).

3 Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454,

469 (Tex. 1997); see also Empire Gas & Fuel Co. v. State, 47 S.W.2d 265, 272

(Tex. 1932) (“The rule is also well settled that legislative grants of property,

rights, or privileges must be construed strictly in favor of the state on grounds

of public policy, and whatever is not unequivocally granted in clear and explicit

terms is withheld.”).

3

The statute authorizes the relator to share in any recovery for the

State’s injury. 4 Ultimately, however, the relator’s authority derives from

and yields to the State’s authority. The Act provides that the relator’s

“right to continue as a party to the action” is subject to the State’s control

through the State’s right to dismiss or settle the action or to pursue an

alternate remedy. 5 Further, on the State’s or the defendant’s motion, the

trial court may curtail the relator’s right to participate. 6 The trial court

may reduce the relator’s share of the proceeds if it finds the relator

planned or initiated the fraud and it must dismiss the relator from the

action if the relator is convicted of criminal conduct arising out of the

relator’s participation in the fraud. 7

The combination of authority to act plus control by another is the

hallmark of agency. 8 An agent consents to act on behalf of a principal,

subject to the principal’s control. 9 When an agent acts within its

authority, the agent does so “with the same force and effect as if the

4 Tex. Hum. Res. Code § 36.110.

5 Id. §§ 36.107, .109(a). Even when the State declines to participate, the

relator “may proceed” subject to the State’s right to later intervene.

Id. § 36.104(b), (b-1).

6 Id. § 36.107(d)–(e).

7 Id. § 36.111.

Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 589 (Tex. 2017)

8

(“Authority to act on the principal’s behalf and control are the two essential

elements of agency.”).

9 Finley Res., Inc. v. Headington Royalty, Inc., 672 S.W.3d 332, 343 (Tex.

2023).

4

principal had performed the act himself.” 10 As the State’s agent, the qui

tam relator has no right to exceed the authority the State has

legislatively delegated. 11

A concurring opinion suggests that the relator in this case

possessed his own claim, to which his executor succeeds

“automatically.” 12 There is no textual basis for this assumption. The

statutory permission to “bring a civil action for a violation of

Section 36.002 for the person and for the state” that “shall be brought in

the name of the person and of the state” does not grant an independent

claim. 13 Federal precedent interpreting a federal statute is not

sufficiently analogous to the Texas statute to apply. As members of our

Court have observed, the Federal Claims Act employs a damages model

distinct from Texas’s penalty scheme, suggesting that federal

jurisprudence may have limited value in interpreting the Texas

statute. 14 Assignment relationships rely on an agreement to determine

10 Cmty. Health Sys. Pro. Servs. Corp. v. Hansen, 525 S.W.3d 671, 697

(Tex. 2017).

11 See Parke v. Wynne, 34 S.W. 907, 909 (Tex. 1896) (“When an agent

derives his authority from a written instrument, that authority will be limited

to a plain import of the language by which it is conferred.”).

12 Ante at 4 (Busby, J., concurring).

13 Tex. Hum. Res. Code § 36.101(a); cf. PPG Indus., Inc. v. JMB/Hou.

Ctrs. Partners Ltd. P’ship, 146 S.W.3d 79, 84 (Tex. 2004) (“But we must at least

begin our analysis by noting that the Legislature clearly knew how to indicate

that warranty claims were assignable, but did not do so in the DTPA.”).

14 In re Novartis Pharm. Corp., 722 S.W.3d 720, 721–22 (Tex. 2025)

(Young & Sullivan, JJ., statement respecting the denial of the petition for writ

of mandamus).

5

the scope and nature of the assignment. 15 A qui tam relator therefore

has no “status and right” beyond what the statute confers. 16

With this understanding, it is evident that the relator has no right

to devise, transfer, or otherwise assign its authority in the absence of

the statute’s delegation of such a power. The relator’s authority to act is

not a “claim” independent of the State’s claim. A common-law

survivability analysis simply does not apply as it presupposes the

relator possesses an independent claim rather than merely the

authority to pursue the State’s claim. 17 The Act—from which the

relator’s authority is derived—is silent on the relator’s power to transfer

this statutory authority to another or self-appoint a replacement. On the

contrary, the Act bars intervention by persons other than the State. 18

The State’s brief suggests that the executor has “an interest in

the survival and resolution of Dr. Ludlow’s claims.” She does not. To the

extent the State argues that declining to permit qui tam relators to pass

their authority on to others will “jeopardize the public interest in health

15 See Signature Indus. Servs. LLC v. Int’l Paper Co., 638 S.W.3d 179,

196 (Tex. 2022) (rejecting assignment theory in the absence of words or actions

indicating an intent to assign); see also Assignee, Black’s Law Dictionary (12th

ed. 2024) (“Use of the term is so widespread that it is difficult to ascribe positive

meaning to it with any specificity. Courts recognize the protean nature of the

term and are therefore often forced to look to the intent of the assignor and

assignee in making the assignment — rather than to the formality of the use

of the term assignee — in defining rights and responsibilities.”).

16 See Tex. Hum. Res. Code § 36.104(b-1).

17 Had the case proceeded to judgment or settlement, the relator’s estate

would have an interest in collecting the proceeds to which the relator became

entitled.

18 Id. § 36.106.

6

and safety and the public policy interests in the creation and

enforcement of the [Act],” that purpose is achieved through the means

the Legislature authorized, not judicial interlineation. “[I]t frustrates

rather than effectuates legislative intent simplistically to assume that

whatever furthers the statute’s primary objective must be the law.” 19

The Legislature may have other considerations in mind, such as

whether assignability risks the creation of a secondary financial market

for qui tam suits. 20 We should not judicially fill legislative silence in light

of our narrow view of State-delegated authority to private actors. 21

Qui tam actions are brought in the name of the State. 22 The

relator’s death suffices as “good cause” justifying the State’s late

intervention, as the statute permits. 23 Such an event, however, does not

justify a third party’s intervention as a relator, which the statute

expressly forbids.

19 Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 570 (Tex. 2014)

(plurality op.) (alteration in original) (quoting Rodriguez v. United States, 480

U.S. 522, 526 (1987)). Whether or not permitting executors to continue qui tam

claims aids in maintaining the integrity of the Texas Medicaid program, see

ante at 2 (Busby, J., concurring), our focus cannot drift from the plain text of

the statute to the arguable salutary effects of expanding the powers of the qui

tam relator.

20 See In re Xerox Corp., 555 S.W.3d 518, 536 (Tex. 2018) (describing

proceeds accruing to the qui tam relator as a “statutory bounty”).

21 See Tex. Med. Res., LLP v. Molina Healthcare of Tex., Inc., 659 S.W.3d

424, 432 (Tex. 2023) (“‘[L]egislative silence . . . does not give us the power’ to

legislate from the bench.” (alteration in original) (quoting Brown v. De La Cruz,

156 S.W.3d 560, 566 (Tex. 2004))).

22 Tex. Hum. Res. Code § 36.101(a).

23 See id. § 36.104(b-1).

7

* * *

A qui tam relator does not possess a “claim” to transfer to another

but instead acts on the State’s behalf to recover for fraud perpetrated

against the State. Proceeding with the suit in its present form may

result in an irreversible waste of judicial and public resources. 24 The

capacity issue remains on remand, 25 and the State is free to intervene

to prosecute the suit. With these thoughts on the nature of the

relationship between the State and a qui tam relator, I join the Court’s

opinion and concur in the judgment.

Jane N. Bland

Justice

OPINION FILED: June 19, 2026

24 See In re UMTH Gen. Servs., L.P., 725 S.W.3d 424, 432–33 (Tex.

2025).

25 Tafel has not waived or conceded the capacity issue by asserting other

issues in a petition for writ of mandamus. Contra ante at 1 (Busby, J.,

concurring). Tafel’s brief acknowledges the possibility that the claims belong

to the State and further observes that whether common-law survivability rules

apply in such a case is a question of first impression. Tafel’s brief stresses the

importance of having this Court resolve the predominant question of whether

the State’s claim remains at all. In context, Tafel’s acknowledgment that

survivability rules may not apply to claims belonging to the State is not a

concession that the executor has the capacity to proceed with the State’s claim.

8