in the Guardianship of Ruby Peterson

ACCEPTED

01-15-00567-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

12/14/2015 12:39:08 PM

CHRISTOPHER PRINE

CLERK

No. 01-15-00567-CV

FILED IN

1st COURT OF APPEALS

IN THE COURT OF APPEALS FOR THE FIRST DISTRICT

HOUSTON, TEXAS

HOUSTON, TEXAS 12/14/2015 12:39:08 PM

CHRISTOPHER A. PRINE

Clerk

MACKEY GLEN PETERSON, TONYA PETERSON, DON LESLIE

PETERSON AND LONNY PETERSON, APPELLANTS

v.

SILVERADO SENIOR LIVING, INC., D/B/A SILVERADO SENIOR

LIVING SUGAR LAND, APPELLEE

Appendix Tab 69 - 73

P. Alan Sanders

Tx. State Bar No: 17602100

Joshua Davis

Tx. State Bar No. 24031993

Lewis Brisbois Bisgaard & Smith, LLP

Weslayan Tower, Suite 1400

24 Greenway Plaza

Houston, Texas, 77046

(713) 659-6767

(713) 759-6830 – Fax

Alan.Sanders@LewisBrisbois.com

Josh.Davis@LewisBrisbois.com

TAB 69

¤vCounty

DV

FILED

2/6/2015 5:00:15 PM

Stan Stanart

CountyClerk

Clerk

Harris County

Harris County

PickData Entry 1

Pick Up

PROBATE COURT 1

UpThis

This Date

N NO. 427.208-401

NO.427.208 -401

IN RE: GUARDIANSHIP OF

INRE:GUARDIANSHIP OF § IN THEPROBATE

INTHE PROBATECOURT

COURT

RUBY

RUBY PETERSON

PETERSON § NO.O

NO. NE

ONE

AN ALLEGEDIINCAPACITATED

ANALLEGED NCAPACITATED §

PERSON

PERSON HARRISCOUNTY,

HARRISCOUNTY,TEXAS

TEXAS

fromthe District

Transferred from the 129th Judicial District

N

17) CAUSE NO. 2014-40980

CAUSE N0. 2014-40980

0

0 RUBY PETERSON,MACKEY

RUBY PETERSON, ("MACK") §§

MACKEY("MACK") IN THE DISTRICTCCOURT

INTHEDISTRICT OURT

GLEN PETERSON, DONNIE ("DON") §§

GLEN PETERSON, DONNIE ("DON")

LESLIE PETERSON, Individually

LESLIEPETERSON, Individually and §§

As Attorney iin

AsAttomcy for RUBYPETERSON,

n fact forRUBY PETERSON,§§

LONNIE

LONNIE PETERSON

PETERSON

§§

PLAINTIFFS

PLAINTIFFS

§

§

VS.

VS.

§ HARRISCOUNTY,TEXAS

HARRIS COUNTY, TEXAS

§§

SILVERADOSENIOR LIVING,CAROL§

SILVERADO SENIOR LIVING, CAROL

ANNMANLEY, DAVID PETERSON, §

ANN MANLEY, DAVID PETERSON,

TANA MCMILLAN, DR.REBECCA §

TANA MCMILLAN, DR. REBECCA

CLEARMAN, DR.CHRISTOPHER §

CLEARMAN, DR. CHRISTOPHER

MERKL,ANDLINDALAVINSON, §

MERKL, AND LINDA LAVINSON,

§

DEFENDANTS § DISTRICT

DEFENDANTS 129TH JUDICIAL DISTRICT

&SCHWAGER‘S

PLA1NTIFFS' ORDERS

MOTIONTOMODIFY

PLAINTIFFS' & SCHWAGER'S MOTION TO MODIFY ORDERS

DISMISSALS, T0THE

CONCERNINGRULE 91A PLEA

CONCERNING RULE 91A DISMISSALS, PLEA TO THE

ANDSANCTIONS

JURISDICTION

JURISDICTION AND SANCTIONS

RUBY PETERSON, INDIVIDUALLY,MACKEY ("MACK") GLEN

RUBY PETERSON, INDIVIDUALLY, MACKEY ("MACK") GLEN

AND AS NEXT

PETERSONAND DON LESLIEPETERSON,INDIVIDUALLY

PETERSON AND DON LESLIE PETERSON, INDIVIDUALLY AND AS NEXT

ATTORNEY-IN

FRIENDS/ ANDLONNYPETERSON,

FACTOF RUBYPETERSON,

FRIENDS/ ATTORNEY-IN FACT OF RUBY PETERSON, AND LONNY PETERSON,

ANDAS NEXTFRIENDOF RUBYPETERSON("PLAINTIFFS"),

INDIVIDUALLY

INDIVIDUALLY AND AS NEXT FRIEND OF RUBY PETERSON ("PLAINTIFFS"),

ANDCANDICE SCHWAGER thisMOTION TOMODIFY ORDERS RELATING

AND CANDICE SCHWAGER file this MOTION TO MODIFY ORDERS RELATING

Silverado Appx. 0528

No. 1-15-567-CV 1617

TO

TO THE

THE D ISMISAL

DISMISAL OF

OF PLAINTIFFS’

PLAINTIFFS' CLAIMS

CLAIMS AGAINST

AGAINST DEFENDANTS

DEFENDANTSunder

under

Rule

Rule 91a, Pleatotothe

91a, Plea theJurisdiction, well

aswell

Jurisdiction, as ORDERS

asORDERS

as issued

issued granting

SANCTIONS

SANCTIONS against CANDICE

CANDICE SCHWAGER.

SCHWAGER.THIS

THISM OTION

MOTIONTOMODIFY

TO MODIFYis

is

filed by

filed PLAINTIFFSand

by PLAINTIFFS andSCHWAGER

SCHWAGER (collectively

(collectively "MOVANTS")

"MOVANTS") based

baseduponnew

upon new

evidence

evidencein

in addition to othergrounds. In

to other Insupport

support PLAINTIFFS

thereof, PLAINTIFFS AND

AND

SCHWAGER

SCHWAGER ("MOVANTS")allege asfollows:

allegeas follows:

I.I. STATEMENT

STATEMENT OF ISSUES

OF ISSUES

1.PLAINTIFFS,

1. PLAINTIFFS,byand

by and through

through CANDICE

CANDICESCHWAGER, tortllawsuit

SCHWAGER, filedaatort awsuit inHarris

in Harris

CountyDistrictCourt nor

County District Court oon

about uly18,2014,

or about JJuly 18, 2014, sseeking

eekingaa Temporary

TemporaryRestraining

RestrainingOrder

Order

and againstSilverado

and Temporary Injunction against S ilverado

SSenior

eniorLLiving,

iving,CCarol

arolAnnManley,

Ann Manley,David

David

Peterson,

Peterson, et,

al.See

et, al. See OriginalPetition, by5 sworn affidavits. PLAINTIFF

Petition, verified by 5sworn S non-

PLAINTIFFS non-

suitedthe GUARDIANSHIP APPLICATION byMICHAELHIRSCHimmediately.

suited the GUARDIANSHIP APPLICATION filed by MICHAEL HIRSCH immediately.

2. DEFENDANTSamended theirpleadings

2. DEFENDANTS amended their pleadingstocreate

jurisdiction

to create jurisdictiontosupport

their equest forthis

to support theirrrequest for this

Courtto transferPLAINTIFF’S tort caseto probatecourt,whichoccurred aftertheJuly25,

Court to transfer PLAINTIFF'S tortcase to probatecourt, which occurred after the July 25,

2014hearingon DEFENDANTS’ MOTION TOTRANSFER. At thishearing,SARAH

2014 hearing on DEFENDANTS' MOTION TO TRANSFER. At this hearing, SARAH

PACHECO ANDJILL YOUNG on the recordthat theywouldnot hold

PACHECO AND JILL YOUNG represented on the record that they would not hold

PLAINTIFFS to representationsof MICHAEL HIRSCH—but violatedthispromise

PLAINTIFFS to representations of MICHAEL HIRSCH—but violated this promise

inbadfaithandformalicious

purposes.

repeatedly thereafter in bad faith and for malicious purposes.

3. The grantedthetransfer July25,2014andPLAINTIFFS’

APPLICATION

FOR

3. The Court granted the transfer on

on July 25, 2014 and PLAINTIFFS' APPLICATION FOR

TEMPORARY hearingbeganon JULY28,2014.OnJuly28,2014,the

INJUNCTION

TEMPORARY INJUNCTION hearing began on JULY 28, 2014. On July 28, 2014, the

hadextensive

Parties discussions

regarding

socialmediapostsandvideos

pertaining

toRUBY

Parties had extensive discussions regarding social media posts and videos pertaining to RUBY

PETERSON,

whichhadpreviously

beendisseminated

andrevealedthatRUBYPETERSON

PETERSON, which had previously been disseminated and revealed that RUBY PETERSON

wantedtoleaveSILVERADO

SENIOR butwasheldagainst

LIVING herwill.Seevideosof

wanted to leave SILVERADO SENIOR LIVING but was held against her will. See videos of

RubyPeterson,

entered

intoevidence

and ofJULY

28,2014hearing.

Ruby Peterson, entered into evidence and transcript of JULY 28, 2014 hearing.

Silverado Appx. 0529

No. 1-15-567-CV 1618

4. DEFENDANTS

4. DEFENDANTS askedtheJudge to enter

asked the Judge to enteran ORDER,prohibiting

anORDER, prohibitingPLAINTIFFS

PLAINTIFFS AND/OR

AND/OR

THEIR

THEIR ATTORNEYS

ATTORNEYS from

from posting

posting tthe

hethree

three videos att issue,

videos a anyother

issue, any videos,or

othervideos, publicly

orpublicly

disseminating information

information in socialmedia

in social concerning

mediaconcerning RUBYPETERSON

RUBY PETERSONwithfeigned

with feigned

concerns

concerns ofRUBY’S

of RUBY'S privacy rights(and

privacyrights (andthose

thoseof

ofothers theyroutinely

others they violateby

routinely violate byreleases

releases

designed

designed to SILVERADO

to permit SILVERADO to exploit

to exploit residents

residents intheir

in their advertising).

advertising).

5. TheCourt

5. refusedttoodo

The Court refused doso, acknowledging

so,acknowledging thatthis couldbe

casecould

that this case FirstAmendment

beaa First Amendmentcase

case

whichgenerated

which generatedpublic concern

public concern aand

ndfurther questioning

further questioning hisauthority doso.

his authority ttoo do TheCourt

so.The Court

0 clearly thatitwould

stated notORDER

SCHWAGER

totakethevideos

down

orcease

clearly stated that it would not ORDER SCHWAGER to take the videos down or cease

tai

bloggingaboutthe

blogging case andthatthe

about the case partieshad

and that the parties to agree

had to the"Rule

to the

agreeto "Rulell Agreement"or

11 Agreement" or

presentan

present appropriate

anappropriate MOTION

MOTION FORPROTECTIVE

FOR PROTECTIVEAND/OR

AND/OR G AGORDER

GAG ORDER forhim to

for him to

haveauthority

have authority tto

o rule. In deference

Indeference andout

and outofofrespect

respect forthe

for theJudge,

Judge,SCHWAGER

SCHWAGER

voluntarily

voluntarily agreed

agreed to takethe

to take objectionable

the objectionable videos downduring

videos down during the pendencyooff the

the pendency the

TEMPORARY

TEMPORARY INJUNCTION

INJUNCTIONhearing.

hearing.TheAgreement isreflected

The Agreementis n theJuly30,2014

reflected oon the July 30, 2014

transcript.

transcript.

6. DEFENDANTS

6. DEFENDANTS presented no MOTION

presented no MOTION F ORGAG

FOR ORDER d

GAG ORDER espitetthe

despite heCourt’s invitation

Court's invitation to

to

dothe

do untilOCTOBER

sameuntil

the same OCTOBER 9,2014—the same

9, datethe

samedate thehearing theirsanctions

ontheir

hearing on motions

sanctions motions

occurred.

occurred. Significantly, JILL YOUNG,

JILL YOUNG, RUSSJONES

RUSS JONESANDDEFENDANTS

AND DEFENDANTSparticipated inaa

participated in

fourday

four temporary

day temporary injunction

injunction hhearing

earingin whichthe

in which PLAlNTIFFS’

the PLAINTIFFS' claimsfor

claims false

for false

imprisonment,

imprisonment, assault andbattery,

assault and battery, conspiracy,

conspiracy, breach

breach of trust, a

of trust, ndbreach

and offiduciary duty

breach of duty

wereproven

were provenw ithcredible

with credible evidence,

evidence, if

if not

not asa matter oflaw.Ifthey

as a matter believed

of law. If they believed PLAINTIFFS’

PLAINTIFFS'

ORIGINAL,

ORIGINAL, FIRSTORSECOND AMENDED

FIRST OR SECOND AMENDED PETITIONS

PETITIONS were frivolousor

were frivolous groundless

or groundless in

in

violation

violation ofRule

of I0,13,

Rule 10, or91a—or

13, or thatPLAIN

9la—orthat TIFFShad

PLAINTIFFS standing

nostanding

had no toassert

to them,any

assert them, anyone

one

offive

of fiveattorneys

attomeys couldhave

could haveasserted appropriate

asserted appropriate MOTIONS

MOTIONS TODISMISS

TO PLAINTIFFS’

DISMISS PLAINTIFFS'

lawsuit.

lawsuit. Notably, none ofthem

Notably, none filedany

of them filed suchMOTION.

any such MOTION.

Silverado Appx. 0530

No. 1-15-567-CV 1619

7. DEFENDANTS' counsel,

7. DEFENDANTS’ JILL YOUNG

counsel, JILL RUSS J

AND RUSS

YOUNG AND ONES

JONES aalllljoined together

joined together inmost

in most

pleadings filedby regardless

oneanother regardless

filed by one ofwhether

of whether SARAH

SARAH PACHECO

PACHECO ANDHER

AND HER

CLIENTS

CLIENTS were taking

were taking a 180 degree d

180degree iversion

diversion from prior p

from prior ositions

positions or not.

or Themost

not. The egregious

mostegregious

example

example thefact

isthe

is thatJILL

fact that YOUNG,

JILL YOUNG, RUSS JONES,

RUSSJONES, ANDTHE

AND COURT

THECOURT INVESTIGATOR

INVESTIGATOR

concludedpprior

all concluded

all riorto 2014thatthe

MARCH2014

to MARCH Guardianship

that the Guardianship Application

Application hhad

ad no meritand

no merit and

shouldbedismissed

should dueto

be dismissed due to less alternatives,

lessrestrictive alternatives, suchas

such DurablePower

asaa Durable ofAttorney-

Powerof Attorney—

butchanged

but theiropinions

changed their basedsolely

opinions based solelyon unambiguous

onunambiguous loyalty

loyalty SARAH

toSARAH

to PACHECO.

PACHECO.

Nothing

Nothing inthis

in changed

matterchanged

this matter to justifythe

tojustify theabout facedecision

about face ofJILL

decision of YOUNG

JILL YOUNG RUSS

orRUSS

or

JONES’

JONES' support ofDEFENDANTS,

supportof DEFENDANTS, except for"who"

exceptfor theapplicant.

wasthe

"who" was applicant.

8. Bias

8. Bias was repeatedly

was repeatedly demonstrated

demonstrated byJONES

by JONES A

AND YOUNG p

NDYOUNG riorttooSCHWAGER'S

prior SCHWAGER’S lawsuit

lawsuit

beingfiled and

everbeing

ever andseemingly immediately

seemingly immediately upon theGuardianship

uponthe Application’s

Guardianship Application's filing

December

December l0,2013.Shortly

10, 2013. Shortly after appointment,

afterappointment, both JONES

bothJONES andYOUNG

and YOUNG spent lessthan

spentless one

than one

hourwith

hour PLAINTIFFS

withPLAINTIFFS and that the existence of

anddetermined thattheexistence of aapower ofattorney

power of attorneyalonemeant

alone meant

thatno

that guardianship

noguardianship should

should b

beegranted-——with

granted--with both knowing

bothknowing thetime

atthe

at oftheir

time of objection

their objection that

that

- NOMEDICAL

NO MEDICAL POWERPOWER O OFFATTORNEY EXISTED d

ATTORNEY EXISTED ueto

due Section

to Section 166.155

166.155 oftheTexas

of the Texas

Health a

Health ndSafety

and theNovember

Code,the

Safety Code, November 15, revocation

2013revocation

15,2013 executed

executed byRUBY

by PETERSON

RUBY PETERSON

(withsaidrevocation

(with disputed),andthefactthatRUBY

neverdisputed),

said revocation never PETERSON

and the fact that RUBY PETERSON didnot

did notexecute

execute aa

MEDICAL

MEDICAL POWER

POWER OFATTORNEY

OF ATTORNEY after revoking

afterrevoking the1993

the 1993 POA granted

POAgranted CAROL

toCAROL

to ANN

ANN

MANLEY ANDDAVID

MANLEY PETERSON.

AND DAVID PETERSON.

9. Afterunanimously

9. After agreeing tthat

unanimously agreeing hatA POWER

A POWER OFATTORNEY

OF wasthe

ATTORNEY was leastrestrictive

theleast restrictive

alternative

alternative to RUBYPETERSON

to RUBY PETERSONand with knowledge that

andwithknowledge that no validMEDICAL

no valid of

powerof

MEDICAL power

attomey

attorney existed,

existed, JONES,

JONES, YOUNG

YOUNG AND PACHECO

ANDPACHECO fraudulently concealed

fraudulently concealed thisfact

this fact to the

to the

Courtand/or

Court openlydeceived

and/oropenly the Court w

deceived theCourt when PACHECO stated

henPACHECO stated at the closing d

at theclosing ayofthe

day of the

Injunction

Injunction Hearing

Hearing thather

that herclients hadaa "DURABLE

clients had "DURABLE MEDICAL

MEDICAL POWER

POWER OF

OF

Silverado Appx. 0531

No. 1-15-567-CV 1620

10.ATTORNEY,"

10. ATTORNEY,"knowing

knowing thisclaim

this claim to befalse.

to be SCHWAGER

false. SCHWAGER provided

provided articlewritten

anarticle

an written by

by

PACHECO

PACHECO citing

citing Tex. andSafety

Tex. Health and 166.155

Code166.155

Safety Code demonstrate

todemonstrate

to thatDEFENDANTS'

that DEFENDANTS’

had MEDICAL

noMEDICAL

had no ofattorney

powerof

power attorney DURABLE

orDURABLE

or POWER

POWER OF ATTORNEY byvirtue

OFATTORNEY of

by virtue of

therevocation PACHECO

andPACHECO was intentionallydefrauding

the revocation and was intentionally defrauding thetribunal

the tribunal inviolation

in violation ofthe

of the

ethicalstandards

ethical standards governing

governing attorneys. RUSSJONESlater

attorneys. RUSS admittedthat

JONES later admitted thatno MEDICAL

noMEDICAL

Il POWER

OFATTORNEY

existed

afterNovember

15,2013,threatening

to recommend

POWER OF ATTORNEY existed after November 15, 2013, threatening to recommend

guardianship, whichwas in

reality, theonly optionavailable

availableatthat pointto eitherparty.

toeither

guardianship, which wasin reality, the only option at that point party.

11.B

11. iaswas

Bias evident

was evident thehearing

asthe

as hearing began

began inRUSS

in RUSS JONES’ questioning

JONES' questioning ofDR.

of MERKL,

DR. MERKL, wherein

wherein

0

JONES emphasizes

emphasizes hhow

ow important

importantiit

t is for family

is for familymembers

members to bepresent

to be duringexpert

presentduring expert

medical

medical evaluations

evaluations forRUBY’S competency

for RUBY'S competency (asCAROL

(as ANNwas

CAROL ANN present

waspresent withRUBY)

with RUBY)to

to

help

help them acceptthediagnosis

them accept the diagnosis and not beindenial

and not ofher"dementia."

be in denial of Seetranscript

her "dementia." See ofChris

transcript of Chris

Merkl’s

Merkl's testimony,

testimony, attached

attached heretoand

hereto andincorporated hereinby

incorporated herein byreference.

reference.

12.Yet,

12. Yet,when

whenititcame timefor

cametime forMOVANTS’ experts

MOVANTS' experts examine

toexamine

to RUBY

RUBY PETERSON,

PETERSON, despite

despite the

the

fact thatone

fact that suchexpert

onesuch expert probate

wasaaprobate

was regular,

regular, DR. MARC

DR.MARC KUNIK,

KLTNIK, RUSS

RUSS JJONES

ONES aadvocated

dvocated

againstMOVANTS

against MOVANTSbeing evenon

being even thepremises

on the premises ofofSILVERADO

SILVERADO SENIOR

SENIOR LIVING-

LIVING—

suddenly

suddenly nnot

ot moved byPLAINTIFFS'

movedby PLAINTIFFS’ "denial"of

"denial" of her condition,

hercondition, whichJONES

which AND

JONES AND

DEFENDANTS

DEFENDANTS repeatedly

repeatedly accused.

accused. Why wouldan

Why would impartial

animpartial appointee

appointee whoisislooking

who looking out for

outfor

RUBY’S bestinterests

RUBY'S best beopposed

interests be PLA1NT1FFS’

toPLAINTIFFS'

opposed to having

having theopportunity

the observe

toobserve

opportunity to and

and

accepttheir

accept their m other’s

mother's testing

testing and condition,

andcondition, but not DEFENDANTS’.

but not DEFENDANTS'.

13.IInnfact,

13. fact,this wasone

this was ofthe

one of thefew statements

few truthful statements DRMERKL

DR made

MERKL made oonceming

concerning RUBY

RUBY

PETERSON

PETERSON while testifying.

while testifying. After

After 99 months ofattempting

months of attempting to simply

to simply hhave

aveRUBY

RUBYseenby

seen one

by one

ofPLAINTIFFS’

of EXPERTS

PLAINTIFFS' EXPERTS // DOCTORS

DOCTORS forthesole

for purpose

the sole purpose ofdetermining

of whether

determining whether RUBY

RUBY

haddementia

had dementiabyaacredible

by crediblemedical

medical professional

professional couldbelieve,

theycould

they PLAINTIFFS

believe, PLAINTIFFS

immediately amended

immediately amended theirppleadings

their leadingsto reflect the

to SinceD

same.Since

the same. ecember

December of2013,

of 2013,

Silverado Appx. 0532

No. 1-15-567-CV 1621

14.PLAINTIFFS

14. PLAINTIFFSsoughtto

sought theirown

havetheir

tohave physician

ownphysician examine

examine RUBY

RUBY andease

and theirworries

easetheir worriesthat

that

shewas

she beinginappropriately

notbeing

wasnot inappropriately drugged

drugged inways

in thatmight

waysthat mightmake

makeher

herappear

appear demented

demented or

or

exacerbate

exacerbate any existing

any existing dementia.

dementia. Thisbelief

This belief was unreasonable

notunreasonable

wasnot giventhe

given thewidespread

widespread

pandemic

pandemic of

of inappropriate psychotropic

psychotropic drugging

drugging oftheelderly

of the elderly iinnlong termcare

long term facilities

carefacilities

andPLAINTIFFS’

and observations

PLAINTIFFS' observations ofRUBY

of RUBY excessively

excessively drugged,

drugged, giventhat

particularly given that

CAROLANN

CAROL ANNMANLEY andDAVID

MANLEY and PETERSON

DAVID PETERSON admittedRUBY

admitted RUBYwas over-drugged

wasover-drugged at

at

REMINGTON

REMINGTON andstated preference

and stated a preference forSILVERADO

for SILVERADO because

because theyhadcreative ways ttooE

they had creative ways

forcibly

forcibly drug RUBY

drug RUBY ifsheresisted.

if SeeTranscript of Temporary Injunction

she resisted. See Injunction Hearing.

15.Despitethe

15. Despite the fact

fact that

that MOVANTS

MOVANTSamended thetherelief

amended sought repeatedly

relief sought repeatedly to

streamline the

streamline expedited trial

the expedited trial set forNovember

setfor 17,2014,

November17, 2014,MOVANTS

MOVANTS

appropriatelypled

appropriately pledthat

thatDEFENDANTS

DEFENDANTS violated

violated STATE

STATE ANDFEDERAL

AND LAWs

FEDERAL LAW

AND CONSTITUTIONAL

AND CONSTITUTIONAL mandatesexpressedin

mandates expressed inthe and 14th

the 1", 5th ,, 7th , ,and

·EAmendments,

Amendments, ArticleI andV,

Article I and theAnti-Retaliatory

V, the Anti-Retaliatory ofTitles

provisionsof

provisions andIII3 of

Titles112 and

See,e.g.,

See, CityofMesquite

e.g.,City Aladdin's

v. Aladdin's

of Mesquite v. Castle,Inc.,

Castle, Inc.,455U.S.283,293,71L.Ed.2d152,102

455 U.S. 283, 293, 71 L. Ed. 2d 152, 102

S.Ct.1070

S. (1982)

Ct. 1070 (1982) (acknowledging

(acknowledging thatthe

that theTexas Constitution

Texas Constitution couldpprovide

could rovide broader

broader protections

protections

thanfederal

than Constitution);Freedman

federal Constitution);Freedman v.NewJerseyStatePolice,135N.J.Super.

v.New Jersey State Police, 135 N.J. Super. 297,343 A.2d

297,343A.2d

_

148,150(N.J.Super.

148, 150 (N.J. Super. Ct. Law Div.1975); William

Ct.LawDiv.1975); William J. J. Brennan, Jr., TheBillof

Brennan, Jr., Rightsandthe

The Bill of Rights and the

TheRevival

States:The

States: Revival of ofState

StateConstitutions,

Constitutions, as Guardians

asGuardians ofIndividual

of Individual Rights,61

Rights, 61N.Y.U.L.Rev.

N.Y.U.L.Rev.

535(1986) (hereinafter Brennan, Revival o f StateConstitutions); A

535 (1986) (hereinafter Brennan, Revival of State Constitutions); A century-long line century—long lineof Texas

of Texas

cases applying

supportapplying

casessupport our state'scconstitution,

our state's onstitution, 24 particularly inthe

24particularly areaof

in the area offree

freespeech. Our

speech. Our

decision

decision iinn 1920

1920to relyon

to rely theplain

onthe language

plain language of section

ofarticle I,I, section 88 in downaa prior

instriking down prior

restraint inExParte

restraint in Tucker,

Ex Parte Tucker, 220S.W.

220 S.W. at at76 predated

76,, predated theapplication

the application of oftheFirst Amendment

the First Amendment to

to

thestates.

the states.SeeSeeExPartePrice, 741S.W.2d

Ex Parte Price, 741 366,369(Tex.1987)

S.W.2d 366, (Gonzalez,

369 (Tex. 1987) (Gonzalez, J.,concurring).

J., See

concurring). See

alsoDavenport

also Davenport v. Garcia,834

v. Garcia, 834S.W.2d

S.W.2d 4 4 (Tex. 1992)( Court records

(Tex.l992)( "arepresumed

records ''are presumed to to be

be open to

opento

the general public."

thegeneral public." T ex.R

Tex. R.. Civ.P.

Civ. P. 7676..The

Thesealing

sealing ofofaarecord

record mustmeet

must meet thetheprocedural

procedural

prerequisites

prerequisites set forthin

set forth in Rule76aof

Rule 76a of the theTexas Rulesof

Texas Rules ofCivil Procedure

Civil Procedure SeeChandler

.. See v.

Chandler v.

HyundaiM

Hyundai otorCo.,829

Motor S.W.2d774

Co., 829 S.W.2d 774(1992)

(1992) ((per

percuriam).A

curiam).A court

court may not escape

may not thestrict

escapethe strict

obligations

obligations ofthose

of rulesby

those rules bytacitly closing

tacitly closing therecord

the through

record through unwritten

anunwritten

an orderand

order andoverruling

the gag order

the gag order upon Guardian AdLitem forseveral hundred children involved

uponGuardian Ad Litem for several hundred children involved in the Brio Toxic intheBrio Toxic

Waste litigation

Waste litigation thegrounds

onthe

on thatititviolated

grounds that Article

violated Article I,Section

I, Section 88ofoftheTexas Constitution..

the Texas Constitution..

2

Silverado Appx. 0533

No. 1-15-567-CV 1622

theAmericans

the withDisabilities

Americans with Actof

Disabilities Act 1990("ADA"),

of 1990 implementing

("ADA"), implementing under28

regulations under 28

C.F.R.35.001

C.F.R. et seq,

35.001 et Section504of

seq,Section theRehabilitation

504 of the RehabilitationAct of 1973

Act of 1973("Section504"),the

("Section 504"), the

NursingHomeReformActof

Nursing theElder

Home Reform Act of 19874, the ElderJusticeActof Title20

Justice Act of 20095, Title theSocial

of the

20 of Social

TitleIII,which

Title thisruleaddresses,

III, which this rule addresses, prohibits discrimination

prohibits discrimination (orretaliation)

(or retaliation) onon thebasisof

the basis of

disability

intheQ

disability in the

activities

activities ofplaces

of places of ofpublic accommodation

public accommodation (businesses

(businesses that

that are generally

are generally open to

open thepublic

to the public

andthatfallinto

and that fall into one oneof of1212categories listedinintheADA,

categories listed the ADA, such suchasasrestaurants,

restaurants, movietheaters,

movie theaters,

schools,day

schools, facilities,recreation

carefacilities,

day care recreationfacilities,

facilities,aand nd doctors'

doctors’offices) and andrequires

requiresnewly

newly

constructed

constructed or alteredplaces

or altered placesof publicaccommodation———as

of public accommodation—as well wellasascommercial

corrnnercial facilities

facilities

(privately

(privately owned,nonresidential

owned, nonresidential facilitiessuch

facilities suchas factories,

asfactories, warehouses,

warehouses, buildings)—to

oroffice buildings)—to

or

comply

comply with

with theADA Standards.

the ADA Standards. 42 U.S.C. 12181-89.

42U.S.C. 12181-89.

OnJuly26,1991,

On July 26, 1991, the theDepartment issuedrules

Department issued rulesimplementing

implementing titleII

title II andtitleIII,which

and title III, which are are

codifiedat

codified at 28 CFRpart

28 CFR (titlell)

35 (title

part 35 andpart

II) and part36 (titleIII).Appendix

36(title III). Appendix A of the

A of the1991

1991titleIII

title III

regulation,

regulation, which

which is isrepublished

republished as asAppendix

Appendix D 28CFR

to28

D to 36,contains

part36,

CFR part theADA

contains the Standards

ADA Standards

forAccessible D esign (1991Standards), which were based upon theversion

for Accessible Design (1991 Standards), which were based upon the version of the Americans of theAmericans

withDisabilities ActAccessibility Guidelines (1991ADAAG)

ADAAG) published bbyytheAccess

the Access B oardon

the

with

date.

same Disabilities Act

the same date.

TheNursing HomeReform

Accessibility Guidelines

Reform Actgguarantees

uarantees

(1991

residents:

published Board on

The Nursing Home Act residents:

Theright

The right to to freedom

freedom from abuse, m

fromabuse, istreatment,

mistreatment, andneglect;

and neglect;

Theright

The right to to freedom fromphysical

freedom from physical restraints;

restraints;

The

The right

right ttooprivacy;

privacy;

The right

The right ttooaccommodation of medical, physical,

accommodation ofmedical, physical, psychological,

psychological, andsocial

and social needs;

needs;

The

The right

right ttooparticipate inresident

in resident andfamily

and family g roups;

groups;

The

The right

right ttoobetreated

be treated w

withithdignity;

dignity;

The right t oexercise self-determination;

The right to exercise self-determination;

The

The right

right ttoocommunicate

communicate freely;

freely;

The

The right

right ttooparticipate inthereview

participate in the review of ofone's careplan,

one's care andto

plan, and be fully informed

to befully informed inin

any in care, treatment, or change of status i nthefacility;

advance about any changes in care, treatment, or change of status in the facility; and

advance about changes and

The

The right

right ttoovoice

voice g rievances

grievances without

without discrimination or orreprisal.

reprisal.

Ifthenursing

If the nursing h omeor

home longterm

orlong termcare facility

carefacility isdetermined

is determined toto be outofcompliance

be out of compliance as as

Silverado isinthis matter, thefollowing penalties

Silverado is in this matter, the following penalties are imposed:

are imposed:

Civilmonetary penalties;

Civil penalties;

Denialooffpayment

Denial payment for forall Medicare

newMedicare

all new Medicaid

orMedicaid

or admissions;

admissions; Denialof

Denial ofpayment

paymentfor3 for3

allMedicaid

all Medicaid or Medicare p atients;

orMedicare patients;

TheElderJusticeActwas

5 The Elder Justice Act

signedinto

wassigned intolawbyPresident Obamaon

law by President Obama on March

March 23,23,2010,

2010, as part of

as part of

thePatient Protection

the Patient Protection andAffordable

and CareAct. ItItprovides

Affordable Care federal

provides federal resources

resources to "prevent,

to"prevent, detect,

detect,

understand,

treat, understand, intervene

intervene in and,where

in and, appropriate,

where appropriate, prosecute

prosecute elderabuse,

elder neglectand

abuse, neglect and

Silverado Appx. 0534

No. 1-15-567-CV 1623

Security

Security Act,6the

theElderBillof

Elder Bill ofRightsof

Rights ofTexas

Texas HumanResources

ResourcesCCode

odeSection

Section 102.0037,

rej

exploitation."

exploitation."Sec.2012.

Sec. 2012.[42U.S.C.1397j-1] (a)(a) ProtectionofofPrivacy.·—In

[42 U.S.C. 1397j-1] pursuing

Privacy.—In activities

pursuing activities

underthissubtitle,

under this subtitle,the

the Secretary

Secretarysshall

hallensure

ensurethe

theprotection

protectionofofindividual

individual healthprivacy

privacy

consistent withtheregulations promulgated undersection 264(c)

consistent with the regulations promulgated under section 264(c) ofoftheHealth

the HealthInsurance

Insurance

Portabilityand

Accountability Actoof

and AccountabilityAct f1996[l2] andapplicable

1996[12]and applicableStateandlocal

State privacy

and local regulations

privacy regulations

(b) Ruleof Construction.—Nothing

(b) Rule of Construction.—Nothing ininthissubtitle shallbe

this subtitle shall beconstrued

construedtotointerferewith

interfere oror

with

abridge an elder’s r ightto practice h is herreligion throughreliance

or her religionthrough

abridge an elder's right to practice hisor relianceonprayer

on prayeraloneforhealing

alone for healing

whenthischoice—

when this choice—

(1)iscontemporaneously eitherorally inwriting, with

(1) is contemporaneously expressed, either orallyoror in writing, respect

with totoa a specific

respect

illness o r injurywhichtheelderhas at thetimeof thedecision b y an elderwhois

illness or injury which the elder has at the time of the decision by an elder who is

competent at thetimeofthedecision;

competent at the time of the decision;

(2)ispreviouslysetforthin a livingwill,healthcareproxy,or otheradvancedirective

(2) is previously set forth in a living will, health care proxy, or other advance directive

document thatisvalidlyexecutedandappliedunderStatelaw;or

document that is validly executed and applied under State law; or

(3)maybeunambiguously deducedfromtheelder’slifehistory.

(3) may be unambiguously deduced from the elder's life history.

[12] SeeVol.II,P.L.

[12] See Vol. II, P.L. 104-191, §264(c).

TheseStatues impose revocation ofMedicare andMedicaid statusforviolating

the

6 These Statues impose revocation of Medicare and Medicaid participant status for violating the

rights oftheelderly withchemical restraints as Silverado SeniorLiving hasdoneandplacethem

rights of the elderly

riskoflosing with chemicalfrestraints

allfederal as Silverado

dollarhSenior Living hasforwhich

done andMedicare

place them

at moneyortheirbillion ospice business,

at risk of losing all federal money for theirmedia billion dollar hospice business, for which Medicare

pays 100%of the cost.Seewhen means attachedheretoand

pays 100%

incorporated of the cost.

byreference. See when social media means noncompliance, attached hereto and

incorporatedSec.by1reference.

02.003. RIGHTS OFTHEELDERLY. (a) Anelderlyindividual hasallthe

7 Sec. 102.003. RIGHTS OF THE ELDERLY. (a) An elderly individual has all the

rights,benefits, responsibilities, andprivileges granted bytheconstitution andlawsofthisstate

rights, benefits,

andtheUnitedStates, responsibilities,

except whereand privileges

lawfully grantedTheelderly

restricted. by the constitution

individual and laws of this

hastheright tobestate

and ofinterference,

free the United States, exceptdiscrimination,

coercion, where lawfullyand restricted.

reprisal The elderly individual

inexercising thesecivilhas the right to be

rights.

free of interference,

(b) Anelderly coercion, discrimination,

individual hastherightand treprisal in exercising

o betreated theseacivil

withdignity rights.forthe

ndrespect

personal integrity

(b) An elderly individual without

oftheindividual, has the regard

right totoberace,

treated with dignity

religion, national and respect

origin, for the

sex,age,

disability,

personal marital

integrity of the individual,

o f

status,orsource payment. without regard

Thismeansto race,

t hat religion,

t heelderlynational

i origin,

ndividual: sex, age,

disability, marital(1) has

status, the right

or source to makethe

of payment. This individual's

means that the

own choices

elderly r egarding

individual: t he

individual's personal (1) hascare,

affairs, the right to andservices;

make the individual's own choices regarding the

individual's personal(2)hastheright obefreeand

affairs, care, tbenefits, from abuse,

services; neglect, andexploitation; and

(3)ifprotective

(2) has the rightmeasures are abuse,hastheright

to be free required,

from designate

neglect, andtoexploitation; a guardian

and or

representative (3) iftheright

toensure toquality

protective stewardship

measures has the right toaffairs.

oftheindividual's

are required, designate a guardian or

(c) Anelderly

representative to ensure the individual hastheright

right to quality to befreefrom

stewardship physical

of the individual's andmentalabuse,

affairs.

including corporal punishment

(c) An elderly or physical

individual has the

orright to berestraints

chemical free from that areadministered

physical and mental forabuse,

including

purpose ofdiscipline

corporal convenience

punishment

or or and not

physical required

or totreat

chemical t heindividual's

restraints that are medical symptoms.

administered for 04e

A person

purpose providing

of disciplineservices mayusephysical

or convenience orchemical

and not required restraints

to treat onlyifthemedical

the individual's useisauthorized

symptoms.

inwriting ya physician

A person bproviding orthe

services isnecessary

useuse

may inanemergency

physical or chemical restraints onlytheelderly

toprotect if the use isindividual

authorized

in others

or writingfrom

by ainjury.

physicianA physician's

or the use iswritten authorization

necessary fortheuse

in an emergency ofrestraints

to protect the elderly specify

mustindividual

or others from injury. A physician's written authorization for the use of restraints must specify

Silverado Appx. 0535

No. 1-15-567-CV 1624

thecircumstances under which therestraints

the circumstancesunderwhich may be

the restraintsmay be usedandthe

used and the duration forforwhich

which the the

restraints may be

restraints may used.Except

be used. inan

Except in anemergency,

emergency, restraints

restraints may onlybe

mayonly administered

be administered by

by

medical personnel.

qualified medical personnel.

(d) A

(d) mentally

A mentally retarded

retarded elderlyindividual

elderly individualwith court-appointed

with aa court-appointed guardian

guardian ooff the

the

tN person

person m inaa behavior

ayparticipate in

may behavior modification

modification program

program involving

involving use ofrestraints

use of restraints or adverse

oradverse

7

stimulionly

stimuli onlywiththeinformed

with the informed consent consentof oftheguardian.

the guardian.

(e) An elderlyindividual

(e) An elderly individual m may beprohibited

not be

ay not prohibitedfrom communicating

from communicating in the

in the

1

individual's

individual's native language

native language with otheriindividuals

with other ndividuals or employees

or employees forthe purpose

for the purpose ofacquiring

of acquiring or or

providing

providing anyanytypetypeofoftreatment, care,or

treatment, care, services.

orservices.

Ct (f) Anelderly

(f) individualmay

An elderly individual complainabout

maycomplain abouttheindividual's

the individual's care careor treatment.The

or treatment. The

Ol

complaintmay

complaint may be be made

madeanonymously

anonymously or communicated

or communicated by designated

persondesignated

by a person bbyy the

theelderly

elderly

individual. The

individual. providing

personproviding

The person serviceshall

service promptly

shallpromptly respond

respond resolve

ttooresolve thecomplaint.

the complaint. The The

providing

personproviding

person services

services may

may not discriminate

notdiscriminate or takeother

or take punitive

other punitive actionagainst

action against an elderly

anelderly

individual

individual whomakes

who complaint.

makes aa complaint.

(g) Anelderly

(g) individual

An elderly individual isentitled

is entitled toto privacy attending ttoo personal

whileattending

privacywhile personal needs needsandandaa

private p lace forreceiving visitors

private place for receiving visitors or associating with other i ndividuals unless

orassociating with other individuals unless providing privacy p roviding privacy

wouldinfringe

would infringe on therights

on the rights o other iindividuals.

offother ndividuals. Thisright

This rightapplies

applies medical

tomedical

to treatment,

treatment, written

written

communications, telephone conversations,

communications, telephone meeting with

conversations, meeting with family,

family, and accessto

and access resident

toresident councils.

councils.

Anelderly

An elderly p ersonmay

person maysendsendand andreceive unopened

receive unopened mail,and

mail, andthe person

the person providing

providing services

services shall

shall

ensurethattheindividual's

ensure that the individual's mailis sentand

mail is sent anddelivered promptly.

delivered promptly. If

If an elderly

anelderly individual

individual is

is

married andthe

married and spouse

the spouse isreceiving

is similar

receiving similar services,

services, thecouple

the couple may mayshareshareaa room.

room.

(h) An

(h) individual

elderlyindividual

Anelderly may participate

may participate in activitiesof

in activities of social, religious,

social,religious, or

or

community

community groups

groups unlessthe

unless theparticipation interferes

participation interferes withthe

with rights o

therights offother

other p ersons.

persons.

(i) An

(i) Anelderly individual

elderly individual maymanage

may manage the theindividual's

individual's personal financialaffairs.

personalfinancial affairs.The

The

elderly i ndividual

elderly individual may authorize inwriting a nother person t o manage

may authorize in writing another person to manage the individual's money. t heindividual's money.

Theelderly

The individual

elderly individual may choosethe

may choose themanner

marmer inwhich

in whichthe theindividual's

individual's money moneyisismanaged,managed,

including

including aa money

money management

management program,

program, a representative

a representative payee p

payee rogram,

program, financial

aa financial power o

power off

attorney, trust,

attorney, aa trust, or similar method, andtheindividual may choose t heleast

oraa similar method, and the individual may choose the least restrictive of these r estrictive ofthese

methods.

methods. A designated

persondesignated

A person to managean

to manage elderlyindividual's

an elderly individual's moneyshalldo

money shall do so in

so in

accordance

accordance witheachapplicable

with each applicableprogram programpolicy,

policy,law,law,or or rule.On requestof

rule. On request of the theelderly

elderly

individual

individual or

or the individual's

theindividual's representative,

representative, the designated

persondesignated

the person to managethe

to manage theelderly

elderly

individual's money s hall m ake available therelated f inancial records

individual's money shall make available the related financial records and provide an accounting andprovide a n accounting

ofthe

of money.

the money. Anelderly

An individual's

elderly individual's designation

designation ofanother

of personto

another person tomanage

manage theindividual's

the individual's

money

money d oes

does not affect t heindividual's ability t o exercise another right d escribed

notaffect the individual's ability to exercise another right described by this chapter. bythischapter.

If an

If elderly

anelderly individual

individual isunable

is unable to designate

todesignate another

another person

person tomanage

to manage theindividual's

the affairs

individual's affairs

and guardianisisdesignated

andaa guardian designated byaacourt,

by court,the guardian

theguardian shallmanage

shall managethe individual's

theindividual's moneyfn

money

accordance

accordance withthe

with theProbate Codeand

Probate Code andother

other a pplicable

applicable laws.

laws.

(l) Anelderly i ndividual

(1) An elderly individual may choose a ndretain

maychoose and retain aa personal personal physician

physician andisentitled

and to

is entitled to

befully informed inadvance about treatment orcare that m ay affect the

be fully informed in advance about treatment or care that may affect the individual's well-being. individual's well-being.

(m)Anelderly

(m) individual

An elderly individual mayparticipate ininan

may individual

anindividual planof

plan ofcare

carethatthatdescribesi5

describes

Silverado Appx. 0536

No. 1-15-567-CV 1625

Texas

Texas 42U.s.c.

CodeSection 19.4028, 19.408,9 19.413'°, 19.414," 42

Administrative Code 483.10

U.S.C. 483.10

theindividual's

the medical,

individual's medical, nursing,

nursing, andpsychological needs

and needsandandhowhowthetheneeds willbbeemet.

needs will met.

(n)Anelderly

(n) individual

An elderly individual may

may refuse

refuse m edical

medical treatment after

after t heelderly

the elderly individual:

individual: (1)

(1)

isadvised

is advised by bythe person

the person providing

providing services of ofthepossible consequences

the possible consequences ofrefusing

of treatment;

refusing treatment;

and

and

(2) acknowledges

(2)acknowledges thattheindividual

that the individual clearly clearlyunderstands

understands theconsequences

the consequences ofrefusing

of treatment.

refusing treatment.

(s)Except

(s) Except ininan anemergency,

emergency, aaperson providing

personproviding servicesmay

services maynot transferor

nottransfer discharge

ordischarge

anelderly

an individual

elderlyindividual from residential

from a residential facility uuntil

facility ntilthe30thdayafterthedatethe

the 30th day after the date the person person

providing

providing sservices

ervicespprovides

rovidesw rittennotice

written notice to theelderly

to the elderly individual,

individual, the individual's

theindividual's legal

legal

representative,

representative, member

oraa member

or ofthe

of individual's

the individual's family

family stating:

stating:

(1) that

(1) thatthe providingservices

personproviding

the person servicesintends

intends to transferor

to transfer dischargethe

to discharge

or to elderly

theelderly

individual;

individual;

(2) the

(2) reason forthetransfer

the reason for the transfer or or discharge listedinSubsection

discharge listed in Subsection (r); (r);

(3) the

(3) theeffective

effective date dateofthetransfer

of the transfer o orr discharge;

discharge;

(4) theindividual

(4) ifif the individual is istotobe betransferred,

transferred, the thelocation

location to whichthe

towhich theindividual willbe

individual will be

transferred; and and

(5) the

(5) theindividual's

individual's right rightttooappeal

appealthetheaction andthe

action and personto

the person whomthe

towhom theappeal should

appeal should

bedirected.(t)

be directed.

Anelderly

(t) An individual

elderly individual may:

may:

(1) make

(1) livingwill

make aa living willbyexecuting

by executing aadirectivedirective underthe

under theNatural DeathAct

Natural Death Act(Chapter

(Chapter

672, H ealth andSafety

672, Health and Safety Code); Code);

(2) execute

(2) execute a durable

a durable power

power of ofattorney

attorney forhealth

for careunder

health care Chapter

under Chapter 135, CivilPractice

135,Civil Practice

andRemedies

and Remedies Code; Code; or or

(3) designate

(3) designate guardian

aa guardian inadvance

in advance of ofneed

need to makedecisions

tomake decisions regarding

regarding theindividual's

the individual's

health

health c should

areshould

care tthe

heindividual become incapacitated.

individual become incapacitated.

AddedbbyyActs1983,

Added Acts 1983, 68th 68th Leg.,Leg., p 5159, ch.936,

p.. 5159, ch. 936, S ec.11,,eff

Sec. eff. Sept.

Sept. 11,,1983. Amended

1983. Amended byActs

by Acts

1997, 75th Leg., c h.475, S ec. 1 ,eff

1997, 75th Leg., ch. 475, Sec. 1, eff. Sept. 1, 1997. Sept. 1 ,1997.

(a)The

8 (a) resident

The resident hastheright

has the right to exercise

toexercise hisrights

his rights as resident

asaa resident at thefacility

atthe andas

facility and citizen

asaa citizen or

or

resident

resident oftheUnited

of States.

the United States.

(b)The

(b) The resident

resident hashastheright

the right to tobebefreeofinterference, coercion,

free of interference, coercion, discrimination,

discrimination, reprisal

orreprisal

or from

from

thefacility i nexercising hisrights.

the facility in exercising his rights.

(c)Inthe

(c) case of

In the case resident

of aa resident adjudged

adjudged incompetent

incompetent under thelaws

under the laws ofoftheState

the State of ofTexas

Texas by byaa court

court

ofcompetent

of competent jurisdiction,

jurisdiction, therights

the rights of oftheresident

the resident are exercised

areexercised bythe

by person

the person appointed

appointed under

under

Texas lawto

Texas law toact

act on theresident's

on the resident's behalf.

(d) Thefacility m ust

(d) The facility must comply comply withall

with allapplicable

applicable provisions

provisions oftheHuman

of the Human R esources

Resources Code,Tit'e

Code,

6, Chapter102.An

6, Chapter individualmay

102. An individual may not not be deniedappropriate

be denied appropriate ccare areon the basisof

on the basis of hishisrace,

race,

religion, color,national

religion, color, origin,

national origin, sex,age,

sex, age,hhandicap,

andicap, marital

marital status,

status, orsource

or source ofofpayment.

payment.

(e)The

(e) facility

The facility allowthe

mustallow

must theresident

resident the theright observe

toobserve

right to hisreligious

his religious beliefs. Thefacility

beliefs. The must

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