rejecting the theory that the qui tam relator acts merely as the government’s agent
How later courts described this case
- rejecting the theory that the qui tam relator acts merely as the government’s agent
Written by the judges who cited it.
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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JUSTICE YOUNG and JUSTICE SULLIVAN, concurring.
The Court holds today that qui tam claims brought under the Texas
Health Care Program Fraud Prevention Act survive the relator’s death
because the claims belong to the State. Ante at 2, 8–10. According to the
Court, the State “is the party allegedly injured” and is “still very much in
existence.” Id. at 10. Justice Bland agrees that “qui tam claims survive
a relator’s death because the State owns and ultimately directs these
claims.” Ante at 1 (Bland, J., concurring). So do we. We write separately
to acknowledge two issues that the parties have not raised in this
proceeding but that the Court may need to address in the future.
As the Court notes, “[t]his Court has long treated actions filed by
qui tam relators as justiciable,” ante at 10 n.4, and no party has argued
that we should change course in this case. We therefore join the Court’s
opinion, which answers the narrow question presented without needing
to address the relator’s standing.
But although we agree with the Court that denying this mandamus
petition does not require us to address standing head-on, that does not
mean that our concerns about the Act have been allayed. See In re Novartis
Pharms. Corp., 722 S.W.3d 720 (Tex. 2025) (statement of Young and
Sullivan, JJ., respecting the denial of the petition for writ of mandamus).
Parties remain free to argue that differences between Texas law and
federal law justify departing from the U.S. Supreme Court’s conclusion
that a qui tam relator has standing as the partial assignee of the
government’s claim. See id. at 721–22 (citing Vt. Agency of Nat. Res. v.
United States ex rel. Stevens, 529 U.S. 765, 773 (2000)); compare Stevens,
529 U.S. at 772 (rejecting the theory that the qui tam relator acts merely
as the government’s agent), with ante at 5 (Bland, J., concurring) (referring
to the relator as “the State’s agent”). Parties may also argue that the Act
violates the separation of powers by assigning to private relators authority
that the Constitution assigns exclusively to the attorney general and
district and county attorneys, see Novartis, 722 S.W.3d at 722—an issue
that the parties to this proceeding did not raise.
We hope that the Court will seize the opportunity to address these
two difficult but important questions in an appropriate case. Perhaps the
wait will not be long, now that Novartis has returned to this Court. See
No. 26-0467, Pet. for Writ of Mandamus. Because this petition presents
a different question that the Court correctly answers, we are pleased to
concur and leave the thorny constitutional issues for another day.
James P. Sullivan Evan A. Young
Justice Justice
OPINION FILED: June 19, 2026
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