ANTHONY JOHN GREER JR v. DALLAS IVF1 PLLC (2026)

ORDER

Anthony and Allison Greer brought this suit alleging civil-rights violations, state-law torts, breach of contract, and violations of the Texas Deceptive Trade Practices Act. Dkt. 6 at 32–54. The defendants moved to dismiss. Dkts. 15, 16, 17. Some of the Greers' claims are health-care liability claims, and two of the motions to dismiss argue that the court should decline to exercise supplemental jurisdiction over those claims because they “would be subject to expert report and other requirements of such claims under the Texas Medical Liability Act at Chapter 74 of the Texas Civil Practices and Remedies Code.” Dkts. 16 at 11–12, 17 at 15. They contend that “[t]he elements of these health care liability causes of action ․ and the expert evidence required are vastly different than the evidence necessary to prove Plaintiff's civil rights claims In other words, there would essentially be two completely different trials before the Court or the jury in this case.” Dkts. 16 at 12, 17 at 15.

In response to that argument, the Greers ask the court to find that Chapter 74 of the Texas Civil Practice and Remedies Code, its expert-report requirements in particular, Tex. Civ. Prac. & Rem. Code § 74.351, unconstitutional or, alternatively, inapplicable in federal court, Dkt. 19. They also ask the court to certify their constitutional challenge to the Attorney General of Texas in accordance with Federal Rule of Civil Procedure 5.1 and 28 U.S.C. § 2403.

Rule 5.1 provides:

(a) A party that files a pleading, written motion, or other paper drawing into question the constitutionality of a federal or state statute must promptly:

(1) file a notice of constitutional question stating the question and identifying the paper that raises it, if

․

(B) a state statute is questioned and the parties do not include the state, one of its agencies, or one of its officers or employees in an official capacity; and

(2) serve the notice and paper on ․ the state attorney general ․ either by certified or registered mail or by sending it to an electronic address designated by the attorney general for this purpose.

(b) ․ The court must, under 28 U.S.C. § 2403, certify to the appropriate attorney general that a statute has been questioned.

(c) ․ Unless the court sets a later time, the attorney general may intervene within 60 days after the notice is filed or after the court certifies the challenge, whichever is earlier․

And § 2403(b) provides that,

[i]n any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The State shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.

Because the Greers' motion challenges the constitutionality of Chapter 74, Dkt. 19, Rule 5.1 requires them to serve notice of the challenge on the Attorney General of Texas, and the court must certify the constitutional question under Rule 5.1(b) and § 2403(b).

The court doubts that it will reach the constitutional question in light of Passmore v. Baylor Health Care Sys., 823 F.3d 292, 296–99 (5th Cir. 2016), which held that the expert-report requirements of Texas Civil Practice and Remedies Code § 74.351 do not apply in federal court. Ordinarily, courts “will not decide a constitutional question if there is some other ground upon which to dispose of the case.” Escambia County v. McMillan, 466 U.S. 48, 51 (1984). Nevertheless, the duties to certify the question and notify the attorney general are nondiscretionary. Gusinsky v. Reynolds, No. 3:25-cv-1816-K, 2025 WL 3207061, at *2 (N.D. Tex. Nov. 17, 2025). They must be fulfilled even if the constitutional question “is obviously frivolous or may be disposed of on other grounds.” Bottineau Farmers Elevator v. Woodward-Clyde Consultants, 963 F.2d 1064, 1075 n.10 (8th Cir. 1992) (quoting Merrill v. Town of Addison, 763 F.2d 80, 82 (2d Cir. 1985)). The attorney general may ultimately choose not to intervene. But that is his decision, not the court's. Wallach v. Lieberman, 366 F.2d 254, 257 (2d Cir. 1966); Burke v. Verizon Commc'ns, Inc., No. 1:18-cv-4496-PGG-GWG, 2020 WL 6538748, at *2 n.2 (S.D.N.Y. Nov. 6, 2020), aff'd sub nom. Burke v. Hous. & Servs., Inc., No. 23-635, 2024 WL 2207054 (2d Cir. May 16, 2024).

It is ORDERED that the clerk of court certify the constitutional question presented in this case to the Texas Attorney General in accordance with Rule 5.1(b) by emailing a copy of this order and the Greers' notice of a constitutional question, Dkt. 19, to the email address designated by the Attorney General of Texas for receipt of challenges to the constitutionality of Texas statutes per Texas Government Code § 402.010(a): const_claims@texasattorneygeneral.gov. See Rules & Forms, Challenge Constitutionality of a State Statute, Tex. Jud. Branch, https://www.txcourts.gov/ forms/challenging-the-constitutionality-of-a-state-statute/.

It is further ORDERED that, within 30 days of the docketing of this order, the Greers serve a copy of the notice of a constitutional question, Dkt. 19, on the attorney general.

So ORDERED and SIGNED this 27th day of May, 2026.

Bill Davis United States Magistrate Judge