2019-05-07 Defs' MTN To Dismiss - Graves

Filed 5/7/2019 2:30 PM
Barbara Sucsy
District Clerk
Lubbock County, Texas
ARG
CAUSE NO. 2019534246
TITA SENEE GRAVES, § IN THE 72ND DISTRICT COURT

§
Plaintiff §
§
vs. § IN AND FOR
§
NAAG PATHOLOGY LABS, §
PC, EVAN WILLIAM MATSHES, §
MD; and SAM ANDREWS, MD, §
§
Defendants. § LUBBOCK COUNTY, TEXAS
DEFENDANTS’ MOTION TO DISMISS
TO THE HONORABLE DISTRICT COURT:
Come now, NAAG PATHOLOGY LABS, PC, EVAN MATSHES, M.D., and
SAM ANDREWS, M.D., and file this Motion to Dismiss Plaintiff’s Original Petition
and all claims and causes of action contained therein pursuant to section 27.003 of
the Texas Civil Practice and Remedies Code, known as the Texas Citizens
Participation Act (TCPA).
The defendants move to be awarded all court costs, reasonable attorney’s fees,
and other expenses, and request the opportunity to present evidence of these costs,
fees, and expenses. Defendants also move for appropriate sanctions against the
plaintiff to deter her from bringing similar actions pursuant to section 27.009 of the
TCPA. In support of their motion to dismiss, the defendants would respectfully show
this Court the following:
DEFENDANTS’ MOTION TO DISMISS – PAGE 1 147433v1

I.
PROCEDURAL REQUIREMENTS
A party may seek dismissal of a legal action under the TCPA by filing a
motion to dismiss not later than the 60th day after the date of service of the legal
action. Tex. Civ. Prac. & Rem. Code Ann. § 27.003(b) (West 2015). Graves filed
her original petition on February 20, 2019. Plt.’s Orig. Pet. (on file with this Court).
NAAG Pathology Labs, PC was served on March 8; Dr. Matshes was served on
March 18; Dr. Andrews was served on March 11. See Return of Service (on file with
this Court). Because this motion is filed within sixty days of the date of service, it is
timely. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(b). The filing of this motion
stays all discovery until the Court rules on the motion. See Tex. Civ. Prac. & Rem.
Code Ann. § 27.003(c)
Once a party files a motion to dismiss under the TCPA, the Court must set a
hearing date within 60 days unless docket conditions require a later hearing, good
cause is shown, or the parties agree otherwise. Tex. Civ. Prac. & Rem. Code Ann. §
27.004(a) (West 2015). The hearing must occur within 90 days after the motion is
served, however, regardless of docket conditions, good cause, or agreement. Tex.
Civ. Prac. & Rem. Code Ann. § 27.004(a). After the hearing, the Court must rule on
the motion within 30 days. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(a) (West
2015).

II.
SUMMARY OF THE ARGUMENT
The present suit is subject to the Texas Citizens Participation Act because it
is based on, related to, or in response to these defendants’ exercise of the right of
free speech and the exercise of the right of association as defined by the statute. As
such, Graves is required to meet certain statutory requirements to avoid dismissal.
Because she is not able to do so, her suit against these defendants should be
dismissed. In particular, Graves cannot establish by clear and specific evidence a
prima facie case for each essential element of her claim for tortious interference.
Moreover, even if Graves could establish her causes of action as required by
the statute, these defendants have demonstrated they are entitled to the affirmative
defenses of official immunity, qualified privilege, and justification. Further, Dr.
Matshes is not liable individually for the acts of NAAG. Accordingly, dismissal of
this legal action is required.
III.
FACTUAL BACKGROUND
A. NAAG provides medical examiner services to Lubbock County.
Dr. Evan Matshes is the managing director of NAAG Pathology Labs, PC and
the managing member of National Autopsy Assay Group LLC. Ex. A, Matshes
Affidavit, ¶¶ 1-2. Dr. Sam Andrews and Dr. Matshes are employees of National

Autopsy Assay Group LLC, but they are subcontracted to NAAG. Ex. A, Matshes
Affidavit, ¶ 2; Ex. B, Andrews Affidavit, ¶ 2.
In a contract with Lubbock County, NAAG agreed to provide the services of
an Interim or Acting Chief Medical Examiner. Ex. A, Matshes Affidavit, ¶¶ 3-4; Ex.
B, Andrews Affidavit, ¶ 3; see also, Ex. C, Garcia Affidavit, ¶¶ 13-15. In August of
2018, Dr. Andrews was appointed the Interim Acting Chief Medical Examiner
pursuant to section 49.25 of the Texas Code of Criminal Procedure. Ex. B, Andrews
Affidavit, ¶ 3 and Ex. 2; Ex. C, Garcia Affidavit, ¶ 12. NAAG also agreed to provide
the administrative support necessary for Dr. Andrews to serve as Interim Chief
Medical Examiner. Ex. A, Matshes Affidavit, ¶ 3.
Afterwards, NAAG entered into a second contract with Lubbock County to
provide comprehensive “full spectrum” death investigation services, including
executive oversight functions typical of a Chief Medical Examiner and oversight
administrative functions typical of the Chief Administrative Officer and Department
Head or Section Leader. Ex. A, Matshes Affidavit, ¶ 4 and Ex. 1; Ex. B, Andrews
Affidavit, ¶ 4. Under the contract, the County is responsible for the cost related to
employment of support staff including autopsy technicians and death investigators.
Ex. A, Matshes Affidavit, ¶ 4. Further, NAAG provides death investigation services
pursuant to the contract with Lubbock County under chapter 49 of the Texas Code
of Criminal Procedure. Ex. A, Matshes Affidavit, ¶ 5.

Under that contract, Dr. Andrews was appointed the Chief Medical Examiner
on December 21, 2018. Ex. A, Matshes Affidavit, ¶ 4; Ex. B, Andrews Affidavit, ¶¶
2, 4 and Ex. 2; Ex. C, Garcia Affidavit, ¶ 16. During all times relevant to this suit,
Dr. Andrews served as the Interim Chief Medical Examiner or Chief Medical
Examiner for Lubbock County. Ex. B, Andrews Affidavit, ¶ 2. He also served as the
Department Head for the Lubbock County Medical Examiner’s office. Ex. B,
Andrews Affidavit, ¶ 2. Dr. Andrews was the immediate supervisor of Graves at all
relevant times. Ex. B, Andrews Affidavit, ¶ 2.
B. Graves’ Employment
Graves was an employee of Lubbock County in the Medical Examiner’s office
when Dr. Andrews became the Interim Chief Medical Examiner. Ex. B, Andrews
Affidavit, ¶ 5. After NAAG began operating the Medical Examiner’s office under
the contract, Graves continued to be employed as a death investigator. Ex. A,
Matshes Affidavit, ¶ 6. Graves was an employee of Lubbock County, not NAAG,
until her termination in January of 2019. Ex. A, Matshes Affidavit, ¶ 6. Dr. Andrews,
however, is responsible for the administration and operation of the Medical
Examiner’s office and has supervisory authority over Lubbock County employees
working in the Medical Examiner’s office. Ex. B, Andrews Affidavit, ¶ 7.
In her petition, Graves alleges that the defendants induced Lubbock County
to terminate her employment because she reported suspicious and potentially illegal

activity in the medical examiner’s office. Ex. D, Plt.’s Orig. Pet., ¶ 9. She alleges
that Dr. Matshes established a protocol at the Medical Examiner’s office requiring
the taking of more tissue than necessary during child autopsies for his own personal
research. Ex. D, Plt.’s Orig. Pet., ¶ 13, ¶ 18. Graves took photographs during one of
the autopsies and sent them to Dr. Pustilnik, a physician who had at times done
contract work for the Medical Examiner’s office. Ex. D, Plt.’s Orig. Pet., ¶16. She
also contacted an employee at the Lubbock Police Department and a Lubbock
County Commissioner to express her concerns. Ex. D, Plt.’s Orig. Pet., ¶¶ 20-21.
Representatives of Lubbock County raised concerns that confidential
information about matters in the Medical Examiner’s office was being
inappropriately or illegally disclosed. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews
Affidavit, ¶ 6. Because the duties of the Medical Examiner’s office routinely involve
potential criminal investigations, the leak of confidential information about cases
pending in the Medical Examiner’s office was of great concern to Lubbock County
and NAAG. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6.
Graves’ employment was terminated on January 17, 2019. Ex. D, Plt.’s Orig.
Pet., ¶¶ 23-24. Lubbock County made the decision to terminate Graves, and Dr.
Andrews notified her of the termination in his role as Chief Medical Examiner for
Lubbock County and as the Department Head for the Medical Examiner’s office.
Ex. B, Andrews Affidavit, ¶ 7.

Dr. Matshes communicated with Assistant District Attorneys and the Human
Resources Director about Graves. Ex. A, Matshes Affidavit, ¶ 7. All his
communications with representatives of Lubbock County related to Graves involved
the proper operation of the Medical Examiner’s office in connection with NAAG’s
duties under the contract with Lubbock County to provide administrative oversight.
Ex. A, Matshes Affidavit, ¶ 7. Likewise, all communications of Dr. Andrews with
representatives of Lubbock County related to Graves involved the proper operation
of the Medical Examiner’s office and were in the performance of his duties as Chief
Medical Examiner. Ex. B, Andrews Affidavit, ¶ 6.
Further, all of Dr. Matshes’ communications with representatives of Lubbock
County related to Graves were in the course and scope of his employment with
NAAG. Ex. A, Matshes Affidavit, ¶ 8. All of Dr. Matshes and Dr. Andrews’
communications with any representative of Lubbock County regarding Graves were
made in good faith in a belief that the statements were true, the statements were
appropriate in connection with the proper operation of the Medical Examiner’s
office pursuant to the contract, and that the communications of those statements were
in the best interest of Lubbock County. Ex. A, Matshes Affidavit, ¶ 9; Ex. B,
Andrews Affidavit, ¶ 8.

IV.
EVIDENCE
The TCPA requires a court to consider the pleadings and supporting and
opposing affidavits filed by the parties before ruling on a motion to dismiss. Tex.
Civ. Prac. & Rem. Code Ann. § 27.006(a) (West 2015). Accordingly, the defendants
submit the following for the Court’s consideration:
Exhibit Document
A Affidavit of Dr. Evan Matshes, with attached exhibits
B Affidavit of Dr. Sam Andrews, with attached exhibits
C Affidavit of Sandra Garcia
D Plaintiffs’ Original Petition
E Defendants’ Original Answer
V.
ARGUMENTS AND AUTHORITIES
The determination of a TCPA motion to dismiss is a three-step analysis.
Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018). First, the movant must show
by a preponderance of the evidence that the TCPA applies to the legal action against
it. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b) (West 2015); Youngkin, 546
S.W.3d at 679. Second, if the movant meets its burden, the nonmovant must establish
by clear and specific evidence a prima facie case for each essential element of its

claim. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c); Youngkin, 546 S.W.3d at 679.
Third, if the nonmovant satisfies that requirement, the burden then shifts back to the
movant to prove each essential element of any valid defenses by a preponderance of
the evidence. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d); Youngkin, 546 S.W.3d
at 679-80.
A. The TCPA applies.
The TCPA applies if the legal action is “based on, relates to, or is in response
to” the movant’s “exercise of the right of free speech, right to petition, or right of
association.” Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a) (West 2014). Here, the
TCPA applies because Graves’ suit is based on, related to, and in response to the
defendants’ exercise of the right to free speech and the exercise of the right of
association.
1. Exercise of the Right of Free Speech
The statutory definition of the “exercise of the right of free speech” is not fully
coextensive with the constitutional free-speech right protected by the First
Amendment. Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 892 (Tex.
2018). Rather, the statute defines the “exercise of the right of free speech” as a
“communication made in connection with a matter of public concern.” Tex. Civ.
Prac. & Rem. Code Ann. 27.001(3) (West 2015). Under the statute then, a right of
free speech has two components: (1) the exercise must be made in a communication

and (2) the communication must be made in connection with a matter of public
concern. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015).
A “communication” is broadly defined, and “includes the making or
submitting of a statement or document in any form or medium.” Tex. Civ. Prac. &
Rem. Code Ann. § 27.001(1) (West 2014); Youngkin, 546 S.W.3d at 680. The plain
language of the statute does not impose any requirement that the form of the
communication be public. Lippincott, 462 S.W.3d at 509. Thus, both public and
private communications are within the scope of the definition. Lippincott, 462
S.W.3d at 509. The TCPA applies to protect employers in actions related to
communications made by their employees and agents. See ExxonMobil Pipeline Co.
v. Coleman, 512 S.W.3d 895, 899-900 (Tex. 2017).
Next, courts determine whether the communication was made in connection
with a matter of public concern. Lippincott, 462 S.W.3d at 509. A “matter of public
concern” includes, among other things, an issue related to health and safety,
community well-being, the government, and a public official. Tex. Civ. Prac. &
Rem. Code Ann. § 27.001(7). The TCPA does not require the statement specifically
mention the statutory public concern. ExxonMobil Pipeline Co., 512 S.W.3d at 900.
Nor does the statute require more than a tangential relationship between the
communication and the public concern. ExxonMobil Pipeline Co., 512 S.W.3d at

900. Rather, the communication need only be “in connection with” the identified
matters of public concern. ExxonMobil Pipeline Co., 512 S.W.3d at 900.
The TCPA applies here. First, Dr. Matshes communicated with the Assistant
District Attorneys and the Human Resources Director about Graves. Ex. A, Matshes
Affidavit, ¶ 7. Dr. Andrews also had communications with representatives of
Lubbock County related to Graves. Ex. B, Andrews Affidavit, ¶ 7. Therefore, there
is a “communication” under the statute. See Tex. Civ. Prac. & Rem. Code Ann. §
27.001(1) (West 2014); Youngkin, 546 S.W.3d at 680.
Second, the communications were made in connection with a matter of public
concern. See Lippincott, 462 S.W.3d at 509. The communications were with regard
to issues of safety and community well-being because the defendants were
concerned that confidential information about on-going criminal investigations was
being inappropriately or illegally disclosed. Ex. A, Matshes Affidavit, ¶ 7; Ex. B,
Andrews Affidavit, ¶ 6. Further, these communications were made in connection
with the government because they concerned the actions of a Lubbock County
employee as well as in connection with a public official, namely, the Chief Medical
Examiner. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(7).
Accordingly, the communications of Dr. Matshes and Dr. Andrews to either
the district attorney’s office, the human resources department, or Lubbock County
representatives are all communications on a matter of public concern. See Ex. A,

Matshes Affidavit, ¶ 4; Ex. B, Andrews Affidavit, ¶¶ 2, 4, 7. Accordingly, the
defendants exercised their right to free speech. See Tex. Civ. Prac. & Rem. Code
Ann. § 27.001(3). Graves’ suit is based on, related to, and in response to that exercise
of the right to free speech. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). The
TCPA, therefore, is applicable. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b).
2. Right of Association
The TCPA also applies to this legal action because it is based on the
defendants’ right of association. The TCPA defines the “exercise of the right of
association” as “a communication between individuals who join together to
collectively express, promote, pursue, or defend common interests.” Tex. Civ. Prac.
& Rem. Code Ann. § 27.001(2).
Here, the communications between Dr. Matshes and the human resources
department and the district attorney’s office, as well as Dr. Andrews’
communications with representatives of Lubbock County, constitute the right of
association. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(2). NAAG, Dr.
Andrews, Dr. Matshes and representatives of Lubbock County joined together to
promote, pursue, and defend a common interest, namely the appropriate and
confidential investigation of criminal cases. See Ex. A, Matshes Affidavit, ¶ 7; Ex.
B, Andrews Affidavit, ¶ 6. Thus, the communications here also constitute the
exercise of the right of association. See Tex. Civ. Prac. & Rem. Code Ann. §

27.001(2). Graves’ suit is based on, related to, and in response to that exercise of the
right to association. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). The TCPA,
therefore, applies to this suit. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b).
B. Prima Facie Case
Once a court determines the TCPA is applicable, the burden shifts to the
nonmovant to establish by “clear and specific evidence a prima facie case for each
essential element of the claim in question.” Tex. Civ. Prac. & Rem. Code Ann. §
27.005(c). The word “clear” means “unambiguous,” “sure,” or “free from doubt.” In
re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015). The word “specific” means “explicit”
or “relating to a particular named thing.” In re Lipsky, 460 S.W.3d at 590.
A “prima facie case” refers to evidence sufficient as a matter of law to
establish a given fact if it is not rebutted or contradicted. In re Lipsky, 460 S.W.3d
at 590. It is the minimum quantum of evidence needed to support a rational inference
that an allegation of fact is true. In re Lipsky, 460 S.W.3d at 590. Although the TCPA
initially demands more information about the underlying claim, it does not impose
an elevated evidentiary standard or categorically reject circumstantial evidence. In
re Lipsky, 460 S.W.3d at 591.
The TCPA requires “element-by-element, claim-by-claim exactitude” to
make a prima facie case. Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520
S.W.3d 191, 206 (Tex. App.—Austin 2017, pet. dism’d). Conclusory allegations and

evidence are insufficient. See Lipsky, 460 S.W.3d at 592-93. Instead, the plaintiff
must provide enough detail to show the factual basis for her claim. Lipsky, 460
S.W.3d at 591.
Graves brings a single claim against the defendants for tortious interference
with her employment contract. Ex. D, Plt.s’ Orig. Pet., ¶ 24. To prevail on a claim
for tortious interference with a contract, a plaintiff must show: (1) an existing
contract subject to interference, (2) a willful and intentional act of interference with
the contract, (3) that proximately caused the plaintiff’s injury, and (4) that caused
actual damages or loss. Prudential Ins. Co. of Am. v. Financial Review Servs., Inc.,
29 S.W.3d 74, 77 (Tex. 2000); Abraham v. Ryland Mortg. Co., 995 S.W.2d 890, 895
(Tex. App.—El Paso 1999, no pet.).
To satisfy the second element of “a willful and intentional act of interference,”
a party must be more than a willing participant; rather, it must knowingly induce one
of the contracting parties to breach its obligations. John Paul Mitchell Sys. v.
Randalls Food Mkts., Inc., 17 S.W.3d 721, 730 (Tex. App.—Austin 2000, pet.
denied). A necessary element of the plaintiff’s cause of action is a showing that the
defendant took an active part in persuading a party to breach its contract. John Paul
Mitchell Sys., 17 S.W.3d at 731. Inducing a contract obligor to do what it has a right
to do under the contract, however, is ordinarily not actionable interference. ACS
Inv’rs, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997).

To satisfy the third element of a claim for tortious interference with an existing
contract, a plaintiff must show that the interference proximately caused the
plaintiff’s injury. Prudential Ins. Co. of Am. v. Financial Review Servs., Inc., 29
S.W.3d 74, 77 (Tex. 2000). The proximate-cause tests for cause-in-fact and
foreseeability apply to claims of tortious interference. Richardson-Eagle, Inc. v.
William M. Mercer, Inc., 213 S.W.3d 469, 474 (Tex. App.—Houston [1st Dist.]
2006, pet. denied). Cause-in-fact requires proof that (1) the act was a substantial
factor in bringing about the harm at issue, and (2) absent the act, the harm would not
have occurred. HMC Hotel Props. II Ltd. P’ship v. Keystone-Texas Prop. Holding
Corp., 439 S.W.3d 910, 913 (Tex. 2014). Establishing causation requires that the
plaintiff bring forth sufficient facts so that the evidence, and the logical inference
that can be drawn from the evidence, support a reasonable probability that the
defendant’s acts or omissions were a substantial factor in bringing about the injury.
Richardson-Eagle, Inc., 213 S.W.3d at 474. These elements cannot be established
by conjecture, guess, or speculation. HMC Hotel Props. II Ltd. P’ship, 439 S.W.3d
at 913.
Here, Graves does not have clear and specific evidence of the elements of a
prima facie case for tortious interference with her employment contract. First, there
was no willful or intentional act of interference with the contract because Defendants
did not induce Lubbock County to breach a contract with Graves. See John Paul

Mitchell Sys., 17 S.W.3d at 730. Inducing a contract obligor to do what it has a right
to do under the contract is ordinarily not actionable interference. ACS Inv’rs, Inc.,
943 S.W.2d at 430.
Representatives of Lubbock County raised concerns that confidential
information about matters in the Medical Examiner’s office were being
pending in the Medical Examiner’s office was of great concern to both Lubbock
County and NAAG. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6.
The affidavits demonstrate that Lubbock County raised these concerns about the leak
of confidential information. See Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews
Affidavit, ¶ 6. Moreover, firing Graves for an admitted publication of confidential
information does not amount to a breach of contract by Lubbock County. See Ex. D,
Plt.’s Orig. Pet., ¶ 16.
Moreover, all communications Dr. Matshes had with representatives of
Lubbock County related to Graves involved the proper operation of the Medical
Examiner’s office in connection with NAAG’s duties under the contract with
Lubbock County to provide administrative oversight. Ex. A, Matshes Affidavit, ¶ 7.

NAAG. Ex. A, Matshes Affidavit, ¶ 8. Similarly, all communications of Dr.
Andrews with representatives of Lubbock County related to Graves involved the
proper operation of the Medical Examiner’s office and were in the performance of
his duties as Chief Medical Examiner. Ex. B, Andrews Affidavit, ¶ 6. Accordingly,
there is not clear and specific evidence to establish a prima facie case that either Dr.
Matshes or Dr. Andrews, individually, tortiously interfered with Graves’ contract.
Because there is no evidence sufficient to establish a willful and intentional
interference with Graves’ employment contract, Graves cannot by clear and specific
evidence establish a prima facie case for tortious interference as to NAAG, Dr.
Matshes, or Dr. Andrews. See John Paul Mitchell Sys., 17 S.W.3d at 730.
Further, Graves cannot establish a prima facie case that NAAG, Dr. Matshes,
or Dr. Andrews, proximately caused her injury or damages. Rather, the evidence
demonstrates that Lubbock County, independently of any acts or communications
by the defendants, had concerns that confidential information about matters in the
Medical Examiner’s office were being inappropriately or illegally disclosed. Ex. A,
Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6. Accordingly, there is not clear
and specific evidence that NAAG, Dr. Matshes, or Dr. Andrews were the proximate
cause of Graves’ alleged injury or damages.

Because Graves cannot establish by clear and specific evidence a prima facie
case for the second, third, and fourth elements of her claim for tortious interference
with an employment contract, her legal action against these defendants should be
dismissed. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c).
C. The defendants have established defenses to the legal action.
Even if Graves has brought forth clear and specific evidence to establish a
prima facie case, dismissal is still appropriate because the defendants have brought
forth evidence to prove each essential element of valid defenses by a preponderance
of the evidence. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d); Youngkin, 546
S.W.3d at 679-80.
1. Official Immunity
Official immunity is a common law defense that protects government officers
from personal liability in performing discretionary duties in good faith within the
scope of their authority. Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994). Medical
examiners are entitled to official immunity. Putthoff v. Ancrum, 934 S.W.2d 164,
169-70 (Tex. App.—Fort Worth 1996, writ denied).
Moreover, a private party can assert official immunity if the private party
contracts with a public official to perform governmental duties. Guerrero v. Tarrant
County Mortician Servs. Co., 977 S.W.2d 829, 832 (Tex. App.—Fort Worth 1998,
pet. denied) (holding a private company contracting with the medical examiner’s

office to perform a governmental duty was entitled to assert the defense of official
immunity); Putthoff, 934 S.W.2d at 169 n.7 (finding official immunity extends to a
private party under contract with the county to perform functions of the medical
examiner’s office).
One is entitled to official immunity from suit arising out of the performance
of (1) discretionary duties; (2) in good faith; (3) when acting within the scope of his
authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994);
Guerrero, 977 S.W.2d at 832. If, however, the acts of an official are not lawfully
authorized, then a suit against him is not a suit against the State, and the individual
is not immune. Guerrero, 977 S.W.2d at 832.
a. Defendants’ actions were discretionary.
Official immunity extends to an action or decision that is discretionary, while
ministerial acts do not receive protection. Kassen, 887 S.W.2d at 9. Ministerial acts
are those that the law prescribes and defines the duties to be performed with such
precision and certainty that nothing is left to the exercise of discretion or judgment.
City of Lancaster, 883 S.W.2d at 654. But, when the act to be done involves the
exercise of discretion or judgment, it is not ministerial. City of Lancaster, 883
S.W.2d at 654. If an action involves personal deliberation, decision, and judgment,
then it is discretionary. City of Lancaster, 883 S.W.2d at 654.

Here, Lubbock County made the decision to terminate Graves, and Dr.
Andrews notified her of that termination in his role as Chief Medical Examiner and
as Department Head. Ex. B, Andrews Affidavit, ¶ 7. Such an act involves
deliberation, decision, and the exercise of judgment. City of Lancaster, 883 S.W.2d
at 654. Accordingly, the decision to terminate Graves’ employment is a discretionary
act, not a ministerial one.
Moreover, Dr. Andrews was acting as Chief Medical Examiner and had
oversight administrative functions pursuant to a contract NAAG had with Lubbock
County when he informed Graves of her termination. Ex. A, Matshes Affidavit, ¶ 4;
Ex. B, Andrews Affidavit, ¶ 4. Such administrative functions pursuant to the NAAG
contract involved Dr. Andrew’s discretion. Moreover, Dr. Matshes’
communications with representatives of Lubbock County related to Graves were in
the course and scope of his employment with NAAG. Ex. A, Matshes Affidavit, ¶ 8.
Each of these defendants, therefore, meets the first element of a defense of official
immunity. See City of Lancaster, 883 S.W.2d at 653.
b. The defendants acted in good faith.
Good faith in official immunity is measured by objective legal reasonableness.
City of Lancaster, 883 S.W.2d at 656. The good faith prong of official immunity is
met when a defendant shows that a reasonably prudent person in the same of similar
circumstances would have taken the same actions. Guerrero, 977 S.W.2d at 834. To

controvert the defendant’s evidence, the plaintiff must do more than show a
reasonably prudent person would not have taken the same action. Guerrero, 977
S.W.2d at 834. Instead, the plaintiff must show that no reasonable person in the
defendant’s position could have thought the facts justified the defendant’s actions.
Guerrero, 977 S.W.2d at 834. The trial court must focus on the reasonableness of
what the defendant could have believed and not what a reasonably prudent person
would have done. Guerrero, 977 S.W.2d at 834. “In other words, controverting
evidence on good faith cannot be based on a general negligence standard.” Guerrero,
977 S.W.2d at 834.
Here, both Dr. Matshes and Dr. Andrews acted in good faith. All of Dr.
Matshes and Dr. Andrews’ communications with any representative of Lubbock
County regarding Graves were made in good faith in a belief that the statements
were true, the statements were appropriate in connection with the proper operation
of the Medical Examiner’s office pursuant to the contract with NAAG, and that the
communications of those statements were in the best interest of Lubbock County.
Ex. A, Matshes Affidavit, ¶ 9; Ex. B, Andrews Affidavit, ¶ 8. Because the defendants
here acted in good faith, the second prong of official immunity has been met. See
Guerrero, 977 S.W.2d at 834.
c. The defendants acted in the scope of their authority.

Finally, an official must be acting within the scope of his authority in order
for a court to find him immune from suit. City of Lancaster, 883 S.W.2d at 658. An
official acts within the scope of his authority if he is discharging duties generally
assigned to him. City of Lancaster, 883 S.W.2d at 658.
Here, all actions of both Dr. Andrews and Dr. Matshes with regard to the
Lubbock County Medical Examiner’s office were performed in connection with
their employment duties with NAAG and its contract with Lubbock County. Ex. A,
Matshes Affidavit, ¶¶ 3-4; Ex. B, Andrews Affidavit, ¶¶ 3-4, ¶ 7 (Dr. Andrews has
supervisory authority over Graves); see also, Ex. C, Garcia Affidavit, ¶¶ 13-16.
NAAG. Ex. A, Matshes Affidavit, ¶ 8. Because the defendants here were acting
within the scope of their authority, they have met the third requirement for a court
to find them immune from suit. City of Lancaster, 883 S.W.2d at 658.
The defendants have demonstrated all three elements necessary to establish
the defense of official immunity by a preponderance of the evidence. See Tex. Civ.
Prac. & Rem. Code Ann. § 27.005(d). Moreover, because of NAAG’s duties under
its contract with Lubbock County to provide oversight administrative functions,
official immunity for the actions of Dr. Andrews extends to Dr. Matshes and NAAG.
See Putthoff v. Ancrum, 934 S.W.2d 164, 169-70 (Tex. App.—Fort Worth 1996, writ

denied) (medical examiner is entitled to immunity); Guerrero v. Tarrant County
Mortician Servs. Co., 977 S.W.2d 829, 832 (Tex. App.—Fort Worth 1998, pet.
denied) (holding a private company contracting with the Medical Examiner’s Office
to perform a governmental duty was entitled to assert the defense of official
immunity).
As the defendants have met all three elements, they have demonstrated by a
preponderance of the evidence their entitlement to official immunity. See City of
Lancaster, 883 S.W.2d at 653. Accordingly, even if Graves has established a prima
facie case, the case should be dismissed because these defendants are entitled to the
affirmative defense of official immunity. See Tex. Civ. Prac. & Rem. Code Ann. §
27.005(d).
2. Qualified Privilege
A defendant enjoys a qualified privilege when a communication is made in
good faith and the author, recipient, or a third person has an interest that is
sufficiently affected by the communication. Burbage v. Burbage, 447 S.W.3d 249,
254 (Tex. 2014). The privilege applies when the speaker has a common interest with
the other person, or with reference to a subject in which the speaker has a duty to
communicate to the other person. Levine v. Steve Scharn Custom Homes, Inc., 448
S.W.3d 637, 648 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). “A qualified
privilege attaches to statements made under circumstances in which any one of

several persons having a common interest in a particular subject matter may
reasonably believe that facts exist that another, sharing that common interest, is
entitled to know.” Holloway v. Tex. Med. Ass’n, 757 S.W.2d 810, 813 (Tex. App.—
Houston [1st Dist.] 1988, writ denied).
A party claiming a qualified privilege must use the privilege in a lawful
manner and for a lawful purpose. Iroh v. Igwe, 461 S.W.3d 253, 264 (Tex. App.—
Dallas 2015, pet. denied). The communication must be without malice. Iroh, 461
S.W.3d at 264. Once the privilege is established, therefore, it falls on Ortiz to prove,
with clear and specific evidence, that the defendant made the statements with actual
malice. See Burbage, 447 S.W.3d at 254. Actual malice is a statement made with
knowledge of its falsity or with reckless disregard for the truth. Saudi v. Brieven,
176 S.W.3d 108, 118 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). Where a
statement is qualifiedly privileged, the law presumes good faith and a want of malice.
See Holloway, 757 S.W.2d at 814. Further, an uncontroverted affidavit indicating
the statements at issue were not made with malice is sufficient to negate malice as a
matter of law. See Saudi, 176 S.W.3d at 118.
Here, representatives of Lubbock County raised concerns that confidential
information about matters in the Medical Examiner’s office were being

pending in the Medical Examiner’s office was of great concern to Lubbock County
and NAAG. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6.
Dr. Matshes communicated with Assistant District Attorneys and the Human
Resources Director about Graves. Ex. A, Matshes Affidavit, ¶ 7. All
communications Dr. Matshes had with representatives of Lubbock County related
to Graves involved the proper operation of the Medical Examiner’s office in
connection with NAAG’s duties under the contract with Lubbock County to provide
administrative oversight. Ex. A, Matshes Affidavit, ¶ 7. Likewise, all
communications of Dr. Andrews with representatives of Lubbock County related to
Graves involved the proper operation of the Medical Examiner’s office and were in
the performance of his duties as Chief Medical Examiner. Ex. B, Andrews Affidavit,
¶ 6. Further, all of Dr. Matshes’ communications with representatives of Lubbock
NAAG. Ex. A, Matshes Affidavit, ¶ 8.
NAAG, Dr. Matshes, Dr. Andrews, and the representatives of Lubbock
County had a common interest in information pertaining to on-going criminal
investigations remaining confidential. All of these parties were concerned about the
confidential information leaks and had an interest in ensuring the problem stopped.
Because there was a common interest among the defendants and the representatives

of Lubbock County that was sufficiently affected by the communications regarding
Graves and her employment, the qualified privilege applies here. See Burbage, 447
S.W.3d at 254.
Moreover, the defendants have demonstrated they did not act with malice, but
rather in good faith. See Burbage, 447 S.W.3d at 254. All of Dr. Matshes and Dr.
Andrews’ communications with any representative of Lubbock County regarding
Graves were made in good faith in a belief that the statements were true, the
statements were appropriate in connection with the proper operation of the Medical
Examiner’s office pursuant to the contract, and that the communications of those
statements were in the best interest of Lubbock County. Ex. A, Matshes Affidavit, ¶
9; Ex. B, Andrews Affidavit, ¶ 8.
Accordingly, even if Graves has established a prima facie case, the case
should be dismissed because these defendants are entitled to a qualified privilege to
make the communication. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d).
3. The defendants had a privilege to interfere with the contract.
A party cannot recover for tortious interference if the interference was
privileged. Gillum v. Republic Health Corp., 778 S.W.2d 558, 566 (Tex. App.—Dallas
1989, no writ). One is privileged to interfere with another’s contract when he does so
in the bona fide exercise of his own rights or when he has an equal or superior right in
the subject matter to that of the other party. Sterner v. Marathon Oil Co., 767 S.W.2d

686, 691 (Tex. 1989). The argument that one is privileged or legally justified in the
interference of contractual relations is an affirmative defense. Sterner v. Marathon Oil
Co., 767 S.W.2d 686, 690 (Tex. 1989).
As set out above, the defendants were entitled to a qualified privilege for the
communications they had with representatives of Lubbock County regarding Graves’
employment. Because those communications were privileged, they cannot form the
basis of a claim for tortious interference with an employment contract. See Gillum, 778
S.W.2d at 566.
The evidence demonstrates the communications at issue here involved the
proper operation of the Medical Examiner’s office in connection with NAAG’s
duties under the contract with Lubbock County to provide administrative oversight.
Ex. A, Matshes Affidavit, ¶ 7. Likewise, the communications of Dr. Andrews with
representatives of Lubbock County related to Graves involved the proper operation
of the Medical Examiner’s office and were in the performance of his duties as Chief
Medical Examiner. Ex. B, Andrews Affidavit, ¶ 6. Further, all of Dr. Matshes’
communications with representatives of Lubbock County related to Graves were in
the course and scope of his employment with NAAG. Ex. A, Matshes Affidavit, ¶ 8.
NAAG was acting in the bona fide exercise of its own rights because it had an equal
right in the subject matter—the proper operation of the Medical Examiner’s office and
the avoidance confidential leaks. See Sterner, 767 S.W.2d at 691.

Because NAAG, Dr. Matshes, and Dr. Andrews were legally privileged or
justified in any interference with Graves’ employment contract, she cannot recover for
tortious interference. See Sterner, 767 S.W.2d at 691; Gillum, 778 S.W.2d at 566.
Accordingly, these defendants have established by a preponderance of the evidence
each essential element of a valid defense to Graves’ claim for tortious interference, and
her legal action should, therefore, be dismissed. See Tex. Civ. Prac. & Rem. Code Ann.
§ 27.005(d).
4. Dr. Matshes has no individual liability.
Finally, Dr. Matshes has no individual liability for the alleged tortious
interference of NAAG. A corporate officer’s acts on the corporation’s behalf are
generally deemed corporate acts. ACS Inv’rs, Inc. v. McLaughlin, 943 S.W.2d 426,
432 (Tex. 1997). A corporate officer or director is not liable for inducing the
corporation to interfere with a contract, as long as he acts in good faith on the
corporation’s behalf. See ACS Inv’rs, Inc., 943 S.W.2d at 432. To succeed, the
plaintiff must show that the officer acted in a manner so contrary to the corporation’s
best interests that his actions could only have been motivated by personal interest; a
corporate officer’s mixed motives to benefit both himself and the corporation are
insufficient to establish liability. ACS Inv’rs, Inc., 943 S.W.2d at 432. The mere
existence of a personal stake in the outcome is insufficient to show that the agent
committed an act of willful or intentional interference. Powell Indus., Inc. v. Allen,

985 S.W.2d 455, 457 (Tex. 1998). Instead, the plaintiff must prove the corporation’s
agent acted willfully and intentionally to serve his own personal interests at the
corporation’s expense. Powell Indus., Inc., 985 S.W.2d at 457.
Courts also consider the corporation’s evaluation of the agent’s actions, since
the corporation is a better judge of its own best interest than a jury or court. Powell
Indus., Inc., 985 S.W.2d at 457. If a corporation does not complain about its agent’s
actions, then the agent cannot be held to have acted contrary to the corporation’s
interests. Powell Indus., Inc., 985 S.W.2d at 457.
Dr. Matshes is the managing director of NAAG Pathology Labs, PC and the
managing member of National Autopsy Assay Group LLC. Ex. A, Matshes
Affidavit, ¶¶ 1-2. All communications Dr. Matshes had with representatives of
Lubbock County related to Graves involved the proper operation of the Medical
Examiner’s office in connection with NAAG’s duties under the contract with
Lubbock County to provide administrative oversight. Ex. A, Matshes Affidavit, ¶ 7.
Moreover, all of Dr. Matshes’ communications with representatives of Lubbock
NAAG. Ex. A, Matshes Affidavit, ¶ 8. This evidence demonstrates Dr. Matshes
acted in good faith on NAAG’s behalf. See ACS Inv’rs, Inc., 943 S.W.2d at 432.
There is no evidence Dr. Matshes acted in a manner contrary to NAAG’s best
interests. See ACS Inv’rs, Inc., 943 S.W.2d at 432. Accordingly, Dr. Matshes has no

individual liability for the alleged tortious interference of NAAG because his acts
on the corporation’s behalf are the corporate acts of NAAG. See ACS Inv’rs, Inc.,
943 S.W.2d at 432.
Because Dr. Matshes has established by a preponderance of the evidence that
he has a valid defense, Graves’ claims against him should be dismissed. See Tex.
Civ. Prac. & Rem. Code Ann. § 27.005(d).
D. Attorneys’ Fees, Costs, and Sanctions
Upon granting a motion to dismiss, a court must award court costs, reasonable
attorney’s fees, and other expenses incurred in defending the action as justice and
equity may require. Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a). As to court
costs, the language of the statute does not afford the trial court discretion to
determine what court costs to award. Urquhart v. Calkins, No. 01-17-00256-CV,
2018 WL 3352919, at *5 (Tex. App.—Houston [1st Dist.] July 10, 2018, not pet.)
(mem. op.). Rather, the statute simply requires the trial court to award costs to the
moving party. Urquhart, 2018 WL 3352919, at *5.
The reasonableness of an attorneys’ fee, however, rests within the trial court’s
discretion. Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016). The trial court is
required, upon dismissal, to award to the moving party its reasonable attorney’s fees.
Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(1). A reasonable fee is not excessive

or extreme, but rather moderate or fair. Sullivan v. Abraham, 488 S.W.3d 294, 299
(Tex. 2016). Sullivan, 488 S.W.3d at 299.
As to expenses, a trial court is required to award expenses under the TCPA
only to the extent that the court concludes that justice and equity require it. Urquhart,
2018 WL 3352919, at *5. The determination of an award of expenses is committed
to the trial court’s discretion. Urquhart, 2018 WL 3352919, at *5.
Finally, Section 27.009 instructs the trial court to determine the amount of
sanctions sufficient to deter the claimant from bringing similar actions in the future.
Cox Media Group, LLC v. Joselevitz, 524 S.W.3d 850, 865 (Tex. App.—Houston
[14th Dist.] 2017, no pet.); Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(2) (West
2014). Like the reasonableness of attorney’s fees allowed by a statute, the amount
of sanctions sufficient to deter the claimant is a question of fact that rests within the
trial court’s discretion. See Cox Media Group, LLC, 524 S.W.3d at 859, 865.
Accordingly, upon dismissal of Graves’ legal action, the defendants request
this Court allow the defendants to put on evidence of their costs and attorneys’ fees,
and that this Court then award the defendants their attorneys’ fees and expenses, as
well as sanctions appropriate to deter further actions of this nature.
VI.
CONCLUSION AND PRAYER
First, the TCPA applies here because Graves’ suit is based on, related to, or
in response to these defendants’ exercise of the right of free speech and the exercise

of the right of association. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a); §
27.005(b). Second, Graves cannot establish by clear and specific evidence a prima
facie case for each essential element of her claim for tortious interference with a
contract. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). Third, even if Graves
could establish by clear and specific evidence a prima facie case on each of her
causes of action, these defendants have established by a preponderance of the
evidence that they are entitled to the affirmative defenses of official immunity and a
qualified privilege. See City of Lancaster, 883 S.W.2d at 653; Burbage, 447 S.W.3d
at 254. Further, these defendants were legally privileged or justified in any interference
with Graves’ employment contract. See Sterner, 767 S.W.2d at 691; Gillum, 778
S.W.2d at 566. Finally, Dr. Matshes is not individually liable for the alleged tortious
interference of NAAG because his acts on the corporation’s behalf are the corporate
acts of NAAG. See ACS Inv’rs, Inc., 943 S.W.2d at 432. Accordingly, these
defendants are entitled to dismissal of Graves’ suit under the TCPA. See Tex. Civ.
Prac. & Rem. Code Ann. § 27.005.
WHEREFORE, PREMISES CONSIDERED, Defendants NAAG
PATHOLOGY LABS, PC, EVAN MATSHES, M.D., and SAM ANDREWS, M.D.
respectfully request that, on the hearing of this Motion, this Court enter an order:
1. Granting their Motion to Dismiss pursuant to chapter 27 of the Texas Civil

Practice and Remedies Code;
2. Awarding defendants their attorneys’ fees and court costs;

3. Awarding sanctions against Graves sufficient to deter her from bringing
similar actions; and
4. Awarding such other and further relief to which the defendants may show
themselves justly entitled, either at law or in equity.

Respectfully submitted,
RINEY & MAYFIELD LLP

Thomas C. Riney – TBN 16935100
triney@rineymayfield.com
Alex L. Yarbrough – TBN 24079615
ayarbrough@rineymayfield.com
320 South Polk Street, Suite 600
Maxor Building
Amarillo, Texas 79101
(806) 468-3200; Fax (806) 376-4509
By_______/s/Thomas C. Riney_____________
Thomas C. Riney
ATTORNEYS FOR DEFENDANTS NAAG PATHOLOGY

LABS, P.C. AND DR. EVAN MATSHES
AND
JACKSON WALKER LLP

Jon Mark Hogg – TBN 00784286
jmhogg@jw.com
135 W. Twohig Suite C
San Angelo, Texas 76903
By_______/s/Jon Mark Hogg_____________

Jon Mark Hogg
ATTORNEY FOR DEFENDANT DR. SAM ANDREWS

CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of Defendants’ Motion to Dismiss
was this 7th day of May, 2019, served on all known counsel of record in accordance with
the Texas Rules of Civil Procedure as follows:
Kevin Glasheen VIA ELECTRONIC FILING

kevin7@glasheenlaw.com efile.hayden.hatch@glasheenlaw.com
Hayden Hatch
hayden.hatch@gvilaw.com
GLASHEEN, VALLES & INDERMAN,
LLP
1703 WEST AVENUE
AUSTIN, TEXAS 78701
ATTORNEYS FOR PLAINTIFF
Jon Mark Hogg VIA ELECTRONIC FILING

jmhogg@jw.com
JACKSON WALKER LLP
135 W. Twohig Suite C
San Angelo, Texas 76903
ATTORNEYS FOR DEFENDANT

DR. SAM ANDREWS
________/s/Thomas C. Riney_______________
Thomas C. Riney

Exhibit A

Exhibit B

Medical Examiner- Lubbock County
Job Description
Job Title: Chief Grade: Appointed FLSA: Exempt
Date: 08/2018
Reports To: Commissioners Court
SUMMARY:
Directs the forensic functions of the Medical Examiner’s office to provide proper investigations of
deaths and determines accurate cause and manner of death including investigation and evaluation
of current and anticipated future inquiries in regard to unattended, suspicious, unexpected, and
violent deaths in accordance with Article 49.25, Texas Code of Criminal Procedure. Job has critical
impact on department operations and public image. Medical Examiner is appointed by the
Commissioners Court and serves at the pleasure of the Lubbock County Commissioner’s Court.
Coordinates with the Medical Examiner Chief Administrative Officer to liaison with the
Commissioners Court and the County Executive for Emergency Services.
ESSENTIAL DUTIES:
 Investigates deaths in accordance with Article 49.25, Texas Code of Criminal Procedure.
 Conducts post-mortem examinations to determine cause and manner of death.
 Responsible for the investigation or supervision of the investigation for all types of death
occurring as prescribed by law. Specifies and defines forensic standards, policies, and
procedures to ensure and enforce standardization within the Medical Examiner's office.
 Reviews and settles controversial issues pertaining to cause of death and physical evidence
analysis.
 Uses expert judgment to direct all actions in the Medical Examiner's office operations,
evaluates physical evidence and presents findings during court proceedings and uses broad
discretion to complete work assignments.
 Reviews all forensic work to ensure quality and consistency of reports. Testifies in court as
expert witness, to include out-of-county testimony as necessitated following the
performance of autopsies by the Lubbock County Medical Examiner’s Office. Serves as the
final authority on all investigations, whether involving criminal or civil matters. Confers
with attorneys, physicians, relatives and the public, as required. Has discretionary authority
to comment to the media on matters of public interest or public safety.
 Directs, plans, and provides quality evaluation systems for medical phases of forensic
operations to assure quality and consistent work methods.
 Authorizes designed to take charge of a body falling under the jurisdiction conferred by
Article 49.25, Texas Code of Criminal Procedure, and all property found with it in the
absence of next-of-kin or a legal representative of the deceased. Provides family
conferences in person and by telephone to family members of the deceased to increase
level of understanding of causes of death, manner of death, and physiologic and
psychological mechanisms involved.
 Orders appropriate analytical testing. Collects specimens and evidentiary materials.
Performs external examination of bodies. Dictates findings immediately upon completion of
post-mortem examination. Prepares written reports on opinion of cause and manner of
death regarding causes investigated, autopsied or externally examined, and issues official
death certificate. Promptly reviews and signs medical examiner reports.
 Is responsible for the maintenance of accurate and complete investigative records, reports,
and detailed findings of postmortem examination.
 Maintains all records in compliance with National Association of Medical Examiner (NAME)
standards.
 Promptly informs the appropriate law enforcement agency about deaths in which there is
an indication of criminality. Provides such information as necessary to the appropriate law
enforcement agency as an investigation proceeds.
 Ensures that complete files are provided to the district attorney upon request, to assist the
district attorney to comply with applicable criminal discovery statutes.
 Provides educational and informational opportunities through talks and lectures to law
enforcement, medical and paramedical groups and other criminal justice and related
agencies.
 Represents the County at meetings, state and national forensic organizations board
meetings, seminars, conferences, professional associations meetings, private
organizations, and participates on related committees. Represents Medical Examiner at
Commissioners Court sessions on items requiring agenda discussions.
 Performs other job-related duties as assigned.
QUALIFICATION REQUIREMENTS: Graduation from an accredited college of medicine AND

postgraduate pathology training program AND at least seven (7) years of experience as a forensic
pathologist, including supervisory and management experience.
Licenses, Registrations, Certifications, or Special Requirements:

Possession of a licensed to practice as a medical doctor in the State of Texas as issued by the
Texas Medical Board.
American Board Certified in anatomical or anatomical/clinical pathology.
American Board Certified in forensic pathology.
Valid Texas Driver's License.
WORK ENVIRONMENT & OTHER INFORMATION:

Physical requirements include the ability to lift/carry up to 75-100 pounds and maneuvering
cadavers in excess of 200 pounds. Works in an autopsy room. Requires visual acuity, speech and
hearing, hand and eye coordination, and manual dexterity necessary to operate laboratory
equipment and basic office equipment and computer. Subject to standing, walking, sitting, repetitive
motion, reaching, climbing stairs, bending, stooping, kneeling, crouching, crawling, pushing, pulling,
balancing, client/customer contact, squatting to perform the essential functions. At times requires
driving and exposure to outdoor conditions. Subject to various biological/infectious, chemical,
mechanical, electrical, explosive and radiation hazards in indoors/outdoors work, and exposure to
fumes, noxious odors and toxic wastes. Exposure to computer monitors. Daily contact with bio-
hazardous materials. Frequent contact with funeral directors, law enforcement officers, and friends
and families of the bereaved. Exposure to high job stress. Must possess sufficient physical
strength and emotional stability to work under adverse conditions.
DISCLAIMER:
The characteristics of the work environment described are representative of those that an
employee encounters while performing the essential functions of this job. Reasonable
accommodations may be made to enable individuals with disabilities to perform the essential
functions.
Signature: Date:

Exhibit C

AFFIDAVIT OF SANDRA GARCIA
STATE OF TEXAS §
COUNTY OF LUBBOCK §
On this Js/- day of May, 2019, Sandra Garcia, appeared before me, and after being
placed under oath affirmed the truth of the following:
"My name is Sandra Garcia. I am over the age of 18 years, of sound mind, and personally
acquainted with the facts stated in this affidavit."
l. "My name is Sandra Garcia, I am a custodian for the records of the Cow1ty Clerk's
Office for Lubbock County, Texas."
2. "The Agenda for the Commissioners Court, scheduled on July 25, I 994, contains
eighteen (18) agenda items. Agenda Item #9 is listed as 'Consider medical examiner
plan for Lubbock County (1 :30 p.m.). '"
3. "On the 25 th day of July, 1994, 'there was held a Regular Meeting of the Lubbock
County Commissioners Court for Lubbock County. Members of the Lubbock County
Commissioner's Comt were as follows: Don McBeath, County Judge; Kenny Maines,
Commissioner Precinct #1; James Kitten, Commissioner Precinct #2; Gilbert Flores,
Commissioner Precinct #3; and Alton Brazell, Commissioner Precinct #4.''
4. "Recorded as the minutes for the July 25 11!, 1994 Commissioners Court Meeting, 'the
Court unanimously voted to establish a Medical Examiner Office for Lubbock County,
effective October 1, 1994.''
5. "In that same commissioners court meeting, Dr. Jerry Spencer was unanimously voted
as the Lubbock County Medical Examiner, effective October 1, 1994.''
6. "In determining that the Lubbock County Medical Examiner's Office best serves the
public interest, subsequent contracts for the Lubbock County Medical Examiner Office
were executed by the Commissioners Court on behalf of Lubbock County pursuant to
Article 49.25 of the Texas Code of Criminal Procedure."
7. "Pursuant to Article 49.25 of the Texas Code of Criminal Procedure, Lubbock County
entered into a contract and agreement with Forensic Pathology Associates, P.A. to
provide forensic pathology services, effective from October 1, 1997 until September
30, 1998."

8. "Pursuant to Article 49.25 of the Texas Code of Criminal Procedure, Lubbock County
entered into a contract with Forensic Pathology Associates, P.A., to provide forensic
pathology services, effective from October 1, 1998 until September 30, 1999."
9. '·An Agreement between Lubbock County and Texas Tech University Health Sciences
Center (TTUHSC), for forensic pathology services, pursuant to Article 49.25 of the
Texas Code of Criminal Procedure, was in effect starting October L 2003 until
September 30, 2005,"
10. "An Agreement between Lubbock County and Texas Tech University Health Sciences
Center (TTUHSC) for forensic pathology services, pursuant to Article 49.25 of the
Texas Code of Criminal Procedure, was in effect staiting March 1, 2006 until
September 30, 2006."
11. "In February 2009, an Interlocal Agreement between Lubbock County and Texas Tech
University Health Sciences Center, on behalf of the School of Medicine, was signed in
regards to the operation of the Lubbock County Medical Examiner's Office, pursuant
to Article 49.25 of the Texas Code of Criminal Procedure."
12. "Recorded as the minutes for August 9, 2018, for a Special Meeting of the Lubbock
County Commissioners Court, whereas the Com1 unanimously voted approving to
appoint Dr. Sam Andrews as the Interim Acting Chief Medical Examiner pursuant to
Texas Code of Criminal Procedure 49.25."
13. "Recorded as the minutes for August 9, 2018, for a Special Meeting of the Lubbock
County Commissioners Court, the Court unanimously voted approving to ratify an
agreement behveen Lubbock County and NA.AG Pathology Labs for the performance
and management of the operation of the Lubbock County Medical Examiner's Office
effective August 5, 2018 through September 30, 20 I 8 and to authorize the County
Judge to sign-off on said agreement indicating ratification by the Lubbock County
Commissioners Court.''
14. "Recorded as the minutes for the Lubbock County Commissioners Court Regular
Meeting on September 24, 2018, the Court unanimously voted approving the County
Judge to Sign a Pathology Services Agreement with NAAG Pathology Labs P.C.
15. ''On September 24, 2018, County Judge for Lubbock County_ Thomas Head, signed a
Pathology Services Agreement, effective October 1, 2018, for Lubbock County
pursuant to the Texas Code of Criminal Procedure Chapter 49."
16. "As recorded as the minutes for the December 21, 2018, Regular Meeting of the
Lubbock County Commissioners Court. the Court unanimously voted approving to
appoint Dr. Sam Andrews as the Acting Chief Medical Examiner pursuant to Article
49.25 of the Texas Code of Criminal Procedure."

Further affiant sayeth not.
..-
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Sworn to and subscribed before me on this _ _ _ day of May 20 19.
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Exhibit D

Filed 2/20/201911 :56 AM
Barbara Sucsy
District Clerk
BT
CAUSE NO. 2019534246

§
Plaintiff, §
§
v. §
§
NAAG PATHOLOGY LABS, PC, § IN AND FOR
DR. EVAN WILLIAM MATSHES, and §
DR. SAM ANDREWS, §
§
§
PLAINTIFF'S ORIGINAL PETITION AND REQUEST FOR DISCOVERY
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, TITA SENEE GRAVES, Plaintiff herein, complaining of Defendant
NAAG PATHOLOGY LABS, PC, et al, and for cause ofaction would respectfully show unto this
Court the following:
I. DISCOVERY CONTROL PLAN
1. Plaintiff intends to conduct discovery under Level III of Tex. R. Civ. P. 194.
II. PARTIES
2. Plaintiff TIT A SEN EE GRAVES (hereinafter "Plaintiff'' or "Ms. Graves") is an individual
who resides at 1510 Rear County Rd 7360, Lubbock, Texas 79423.
_ 3. National Autopsy Assay ,Group, PC (hereinafter "Defendant NAAG" or "NAAG") is a
professional corporation doing business in the State of Texas. They arc incorporated in California
and their principal place of business is in San Diego, California. This defendant may be served
PLAINTIFF'S ORIGINAL PETITION

Graves v. NAAG Pathology Labs, PC
Page 1 of 9
with process through its registered agent, CAPITOL CORPORATE SERVICES, INC., at 206 E
9m ST, STE 1300, AUSTIN, TX 78701.
4. Dr. Evan Matshes (hereinafter "Defendant Matshes" or "Dr. ~atshes") is an individual
who resides in San Diego County, California, and may be served at his office at ·6540 Lusk Blvd
Suite c262, San Diego, CA 92121.
5. Dr. Sam Andrews (hereinafter "Defendant Andrews" or "Dr. Andrews") is an individual
who resides in Texas. He can be served at his office in Lubbock at 4434 S Loop 289, Lubbock,
TX 79414.
III. JURISDICTION AND VENUE
6. This Court has personal jurisdiction over the parties. All the parties are either individual
residents of the State of Texas, are doing business in Texas, have sufficient minimum contacts
with the State of Texas, and/or have purposefully availed themselves of the laws and markets of
the State of Texas so as to not offend traditional notions of fair play and substantial justice.
7. This Court is the proper venue to hear this lawsuit pursuant to Tex. Civ. Prac. & Rem. Code
§ 15.002(a)(l) because the events giving rise to this lawsuit occurred in Lubbock County, Texas.
8. As required by Tex. R. Civ. P. 47(b), Plaintiffs counsel states that the damages sought are
in an amount within the jurisdictional limits of this Court. As required by Tex. R. Civ. P. 47(c),
Plaintiff seeks monetary relief over $1,000,000. The amount of monetary relief actually awarded,
however, will ultimately be determined by a jury. Plaintiff also seeks prejudgment and postN
judgment interest at the highest legal rate.

Graves v. NAA G Pathology Labs, PC
Page 2 of 9
IV.FACTS
9. This is an employment case, Ms. Graves was employed by Lubbock Cciunty and worked
in the Medical Examiner's Office until she was fired on January 17, 2019. The D~fendants induced
Lubbock County to terminate Plaintiffs employment because she reported suspicious and
potentially illegal activity within the medical examiner's office.
10. Ms. Graves is 56 years old, was raised in Abernathy, and has lived in Lubbock since she
was 18 years old. She went to South Plains College to qualify as an x-ray tech and went on to
work at Covenant Imaging for 28 years. Her dream was to work in the Medical examiner's Office,
so when a job opening was posted in 2015, she applied with the County and was hired. The
Lubbock County Medical Examiner's Office was staffed with Lubbock County Employees who
worked under the direction of the contracted Medical Examiner.
11. Ms. Graves worked under Medical Examiner Dr. Natarajan until Lubbock County replaced
(
him in August 2018 with a contract interim Medical Examiner, National Autopsy Assay Group
''NAAG", from San Diego, CA. The NAAG contract Medical Examiner was pathologist Dr.
Andrews, who held a Texas Medical License. Dr. Andrews was to fly into Lubbock periodically
and perform autopsies.
12. Immediately after NAAG took over the contract, NAAG began to make changes at the
Lubbock Medical Examiner's Office. Apparently, Lubbock County allowed the contract medical
examiner to fire the Lubbock County employees who worked in the medical examiner's office.
The managerial director Honey Smith was fired immediately, and Office Manager Neil Kilcrease

Graves v. NAAG Pathology labs, PC
Page 3 of 9
quit within a week. Frank Garcia, Catrina Beights and Kayla Shoenhals were all fired the same
day, Kayla by text, in late August.
13. In August 2018, Dr. Matshes, a Pathologist with NAAG, came to Lubbock with the new
interim Medical Examiner Dr. Andrews and explained to the staff that NAAG was starting a new
protocol and a new technique for autopsies involving infants and young children. Dr. Matshes
stated that he wanted to collect more tissue from those autopsies than had been· done in the past,
because he needed that tissue for his "research."
14. Dr. Matshes gathered the staff to watch as he performed two autopsies on infants. The new
protocol required the removal of the children's brain, eyes, spinal cord, posterior neck, including
vertebra, and the heart and lungs, which Dr. Matshes demonstrated on both children. Dr. Matshes
stated that he was acting as a "tech", not a doctor, since was not licensed to practice medicine in
Texas. Dr. Matshes made the incisions and removed the organs himself, while Dr. Andrews
observed along with the staff
15. One of the autopsies was a suspected case of child abuse from Odessa. The other infant
autopsy that day was a case where an infant had died after medical care in UMC hospital from
burns suffered in a house explosion in Midland. There was no need for such tissue to determine
the cause of the bum death.
16. Ms. Graves, and the other staff were disturbed by the autopsies of the infants. The
unnecessary harvesting of body parts for a Pathologist's personal research interests seemed wrong.
An autopsy performed by a physician who was not licensed in Texas seemed wrong. Ms. Graves
took 3 or 4 pictures as evidence that Dr. Matshes was performing the autopsy as an unlicensed

Page 4 of 9
physician. She sent those to another pathologist, Dr. Pustilnik in Houston for his advice. Ms.
Graves was familiar with Dr. Pustilnik because he had done some contract work 1n Lubbock in the
past, and Ms. Graves knew him to be a professional and ethical physician, and she wanted his
advice and assistance about reporting this information to the appropriate agencies. Ms. Graves
deleted the pictures from her phone and did not retain them. She did not send the pictures to anyone
else, and she does not know what Dr. Pustilnik did with the pictures,
17. On or around October Pt, 2018, NAAG signed a contract with Lubbock County to provide
medical examiner services on a more permanent basis. Dr. Matshes came to Lubbock and had a
meeting with the staff and told them that somebody had sent photos to the media, to law
enforcement, to the Midland District Attorney's Office and the Texas Medical Board. He went on
to say that "Whoever did that will go to jail" and "We think we know who did it". Apparently
NAAG thought Kayla Schoenhals may have been the source of the leak, since she had been
recently fired by text message, and was presumed_ to be upset about that. Present for that meeting
were Logan Kuss, Kason McGuinness, Evan McElwain, Andrew Peeples, and Ms. Graves.
18. Later, around late September 2018, Ms. Graves saw Dr. Matshes in an autopsy room where
an autopsy was being conducted on an infant who had died from meningitis. As soon as the child's
skull cap was removed, everyone agreed that the cause of death was an obvious case of meningitis.
Dr. Matshes then stated that he "needed more naturals like this for research" and: directed the staff
to take all the tissue outlined in the new protocol. The staff eventually understood that Dr. Matshes
was doing research to identify certain markers for child abuse but needed more studies of tissue
from infant and children who had died natural deaths, to compare to the tissue from children who
had died from abuse, and that was the purpose of the tissue harvest.

Page 5 of 9
19. Many other employees quit over the next few months, many of them because they were
upset by what appeared to be unnecessary and inappropriate harvesting of tissue from infants and
children, and the unnecessary harvesting of those bodies. Those who quit include Evan McElwain,
\
Logan Kuss, and Andrew Peeples. NAAG brought in some its own employees, including James
Buckley as Senior Investigator; Lisa Hang would be in charge of the autopsy suites and a paralegal
named Lee Bennett.
20. On or about December 4th , an Lubbock Police Department employee named Whitney
McClendon from the ID division was at the ME's office. Ms. Graves reported to Ms. McClendon
her concerns that an unlicensed physician was performing autopsies, about the excessive tissue
harvest, and other concerns about the professionalism and competence of the contractor.
21. On January 4th, Ms. Graves reported her concerns to Lubbock County Commissioner,
Jason Corley. Ms. Graves signed an affidavit at the request of Mr. Corley describing her concerns
about excessive tissue harvest and the unlicensed practice of medicine by Dr. Matshes.
22. On or about January 14th Dr. Matshes came to Lubbock. James Buckley called Ms. Graves
into a conference room to meet with Dr. Matshes. Dr. Matshes accused Ms. Graves of talking to
the County Commissioner and to Law Enforcement. He told her that LPD is "not completely on
your side". He said, "the Captain and Chief of Police do not agree with you." He asked, "Why
are you so mad?" and "What should I do with you?" Ms. Graves took the next day off, and returned
Wednesday, when James Buckley asked Ms. Graves to answer the following questions in writing,
such as: Why do you like your job?; Do you want to keep your Job?; Why were you mad?; Why

Graves v. NAA G Pathology Labs, PC
Page 6 of 9
did you behave that way?; and, What are you going to do to correct it? Ms. Graves was fired
Thursday January 17 th by Dr. Andrews.
23. On January 29 th Ms. Graves emailed Greg George, Human Resources Director for Lubbock
County, inquiring about her employment status. He responded that she had b~en terminated by
Dr. Andrews as of January 171h. See Exhibit A.
V. CAUSES OF ACTION
TORTIOUS INTERFERENCE WITH CONTRACT
24. Defendant Andrews and Matshes both willfully and intentionally interfered with Plaintiffs
employment by inducing Lubbock County to fire Plaintiff because she reported her concerns about
potentially illegal activity within the Medical Examiner's Office to the authorities. Such conduct
amounts to tortious interference with contract. Both Defendant Andrews and Matshes were
employees or agents ofNAAG and were acting within the course and scope of that employment.
VI. PLAINTIFF'S DAMAGES
25. Plaintiff seeks actual damages and exemplary damages for Defendants' tortious
interference with her contract. Defendants acted maliciously.
26. As a direct and proximate result of Defendants' tortious interference, Plaintiff suffered
damages and, as provided by Texas law, is entitled to recover for those damages. Plaintiff has
suffered damages as follows:
a. Mental anguish sustained in the past;
b. Mental anguish that, in reasonable probability, Plaintiff will sustain in the future;

Page 7 of 9
c. Loss of earnings sustained in the past;
d. Loss of earnings that, in reasonable probability, Plaintiff will sustain in the future;
VII. JURY DEMAND
27. Plaintiff demands a jury trial and tenders the appropriate fee with this petition.
, VIII. PRAYER
28. WHEREFORE, Plaintiff requests that Defendants be cited to appear and answer, and that
on final trial Plaintiff has judgment against Defendants for:
a. Actual and exemplary damages;
b. Prejudgment and post-judgment interest;

~
c. Declaratory relief as outlined in this petition;
d. Costs of court;
e. All other relief to which the Plaintiff may be justly entitled.

Page 8 of 9
!
Glasheen, Valles & lnderman, LLP

1703 West Avenue
Austin, Texas 78701
(512) 851-1035
(512) 298-1009-Fax
efi le. hayden.hatch@glasheenlaw.com
(SI Hayden Hatch

· Kevin Glasheen
State Bar No. 08001510
Hayden Hatch
State Bar No. 24109983
ATTORNEYS FOR THE PLAINTIFF

Page 9 of 9
' '
From: Greg George <GGeorge@co.lubbock.tx.us>

Date: January 29, 2019 at 2:04:20 PM CST
To: senee <seneegraves@yahoo.com>
Subject: RE: Employment Status
Dr. Andrews communicated to you on January 17, 2019 your employment with the LCME department
ended on January 17, 2019. This communication took place in person with you ln his office on January
17,2019.
Greg George. PHR

Human Resources Director
Lubbock County
(806)775-1690
(806)775-7977 FAX
'This message contains information which may be confidential and privileged.

Unless you are the addressee (or authorized to receive for the addressee, you may
not use, copy or disclose to anyone the message or any information contained in the
message. If you have received the message in error, please advise the sender by
reply e-mail and delete the message."
From: senee <seneegraves@yahoo.com>

Sent: Tuesday, January 29, 2019 5:28 AM
To: Greg George <GGeorge@co.lubbock.tx.us>
Subject: Employment Status
Mr. George:
I am wrlting to inquire about the status of my employment.
My full name is Tita Senee Graves.
Can you please inform me of what that status is?
Thank you for your quick reply.
Senee
Sent from Mail for Windows 10
PLAINTIFF
A
Capitol Corporate Services, Inc.
PO Box 1831
Austin, TX 78767
Phone; (800) 345-4647 Fax; (800} 432-3622
rassop@capitolseivices.com
Service Of Process Transmittal Notice
SANDRA JOHNSON Date Processed: 03/08/2019

6540 LUSK BLVD STE C262
SAN DIEGO CALIFORNIA92121
Completed By: JOE DIGAETANO
Delivery Method to Client: FEDEX 2 DAY LETTER
Tracking Number: 467169075196
Enclosed please find legal documents received on behalf of the client named below. These documents are
being forwarded in accordance with your instructions.
Date I Time Received Transmittal# Delivered to Agent by

03/08/2019 2:00 PM in TEXAS TX-164022 PROCESS SERVER
With Regard to Client

NAAG PATHOLOGY LABS, PC
Title of Case or Action

TITA SENEE GRAVES VS. NAAG PATHOLOGY LABS, PC, ET AL.
Case Number Type of Document Served

2019534246 COMPLAINT/PETITION
Court Name
72ND JUDICIAL DISTRICT COURT, LUBBOCK COUNTY, TEXAS
INote
lllllll llll llllll lllll 111111111111111111111111111111111

1-1640229
♦
' i
CITATION
THE STATE OF TEXAS
TO: NAAG PA THO LOGY LABS, PC

By Serving Registered Agent: Capitol Corporate Services, Inc.
206 E. 9th St., Ste. 1300, Austin, TX 78701
Defendant Greetings:
NOTICE
You have been sued. You may employ an attorney. If you or your attorney do not file a
written answer with the clerk who issued this citation by 10 a.m. on the Monday following
the expiration of twenty days after you have been served this citation and petition, a default
judgment may be taken against you.
Said Plaintiff's Original Petition and Request for Discovery was filed in the 72nd District
Court of Lubbock County, Texas, on February 20, 2019. The file number of
said suit being
Cause Number 2019534246, and styled:
Tita Senee Graves,

Plaintiff
V.
NAAG Pathology Labs, PC, Dr. Evan William Matshcs, and Dr. Sam Andrews,
Defendants
The nature of Plaintiff's demand is set out and shown by a true and correct copy of the Original
Petition and Request for Discovery, accompanying this citation, and made a part thereof.
Plaintiff is represented by:

Hayden Hatch, 1702 West Avenue, Austin, Texas 78701 512-851-1035
The officer executing this writ shall promptly serve the same according to requirements of law,
and the mandates hereof, and make due return as the law directs.
Issued and given under my hand and seal of said Court at Lubbock County, Texas,
this Thursday, February 21, 2019, at 9:09 AM.
Barbara Sucsy, District Clerk

72nd District Court
P.O. Box 10536 (79408)
904 Broadway
Lubbock, Texas 79401
By___,_(~/,......lz""". .L..-'m'-'---=-tf/_·._t~_,·n_·
~----_ _Deputy
cJ'Tamie Horton
RETURN OF SERVICE
CITATION
Issued: February 21, 2019
Lubbock County Cause Number: 2019534246

72nd District Court
Tita Senee Graves

v.
NAAG Pathology Labs, PC, Dr. Evan William Matshes, and Dr. Sam Andrews
PERSON OR ENTITY TO BE SERVED AND ADDRESS FOR SERVICE:

NAAG PATHOLOGY LABS, PC
By Serving Registered Agent: Capitol Corporate Services, Inc. 206 E. 9th St., Ste. 1300, Austin, TX 78701
OFFICER'S RETURN
Came to hand on the __ day of _ _ _ _ _ _ _ _, 20_, at _ _ _ _ O'clock AM/PM, and executed in

_ _ _ _ _ _ _ _ _ County, Texas by delivering to the within named defendant in person, a true copy of this Citation with the
date of delivery endorsed thereon, together with a copy of the Original Petition and Request for Discovery, at the following time
and places, to-wit:
NAME DATE&TIME LOCATION/ADDRESS
OR NOT executed to the named Defendant; The diligence used in finding said defendant, the cause of failing to execute this process
and the information received as to the whereabouts of the said defendant, being: ·
FEES FOR SERVING: $_ _ _ __

FEES FOR NOT SERVING: $_ _ _ __ Officer or Authorized Person
OTHER FEES: $_ _ __
TOTAL FEES: s_____ County, Texas
Signature of Officer or Authorized Person
**COMPLETE IF YOU ARE A PERSON OTHER THAN A'SHERIFF, CONSTABLE, OR CLERK.OF THECOfJRT**
In accordance with Rule I 07: The officer or authorized person who serves, or attempts to serve a citation shall sign the rct um. The
return must either be verified or be signed under penalty of perjury. A return signed under penalty of perjury must contain the
statement below in substantially the following fonn:
"My name is _ _ _ _ _ _ _ _ _ _ _ _ _ _ , my date of birth is _ _ _ _ _ _ _ _ _, and my address is

(First, Middle, Last)
(Street, City/State, Zip)
I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOfNG IS TRUE AND CORRECT.
Executed in _ _ _ _ _ _ _ _ _ County, State o f _ , on the ___ day of _ _ _ _ _ _ _ _ __
Declarant/Authorized Process Server
I.D. # & Expiration of Certification"

Exhibit E

Filed 3/29/2019 9:52 AM
Barbara Sucsy
District Clerk
ARG
CAUSE NO. 2019534246

§
Plaintiff §
§
vs. § IN AND FOR
§
NAAG PATHOLOGY LABS, PC, DR. §
EVAN WILLIAM MATSHES and DR. SAM §
ANDREWS, §
§
DEFENDANTS’ ORIGINAL ANSWER
Comes now, NAAG PATHOLOGY LABS, PC; DR. EVAN WILLIAM MATSHES; and
DR. SAM ANDREWS (“Defendants”), and answer Plaintiff’s Original Petition as follows:
I.
CORRECT NAME OF NAAG
NAAG is referenced by various names in Plaintiff’s Original Petition. It is referenced in the
caption and introductory paragraph as “NAAG Pathology Labs, PC,” but in Paragraph 2, as
National Autopsy Assay Group, PC. The correct name of the entity is NAAG Pathology Labs, PC
and will hereafter be referred to as “NAAG.”
II.
SPECIAL EXCEPTIONS
Defendants specially except to Plaintiff’s Original Petition because it does not state the
maximum amount of damages claimed as required by Texas Rule of Civil Procedure 47.
Defendants’ Original Answer - Page 1 147046v1

III.
GENERAL DENIAL
Defendants place in issue all matters contained in Plaintiff’s Original Petition by general
denial pursuant to TEX. R. CIV. P. 92.
III.
AFFIRMATIVE DEFENSES
Pleading in the alternative, Defendants allege as follows pertinent to their affirmative
defenses:
A. NAAG entered into a contract with Lubbock County to provide comprehensive
death investigation services including executive oversight functions of a Chief Medical Examiner,
administrative oversight functions for autopsy services, photography, death investigation, and
forensic pathology services. It also agreed to provide sub-specialty forensic pathology services, such
as neuropathology, as deemed necessary by the responsible case pathologist or the Chief Medical
Examiner. Dr. Sam Andrews was appointed Chief Medical Examiner of Lubbock County and has
served in that position at all times relevant to the allegations of Ms. Graves. Ms. Graves was an
employee of Lubbock County and was never an employee of NAAG. Ms. Graves’ allegations that
her employment was terminated because she reported her concerns about potential illegal activity
within the Medical Examiner’s Office to the authorities are false. There was no illegal activity in
the Medical Examiner’s Office by Defendants.
B. The office of the Medical Examiner is a position established by Texas law and by
Lubbock County. See, e.g., Tex. Code Crim. Pro. Art. 49.25. This statute sets forth the duties of a
Medical Examiner. Those duties include investigation of deaths in various circumstances including
a death within 24 hours after admission to a hospital, an unnatural death, or when the circumstances

of a death lead to suspicion that the death was caused by unlawful means. When a death under
these circumstances is reported to the Medical Examiner’s office, the Medical Examiner must
investigate the death. The statute provides that the Medical Examiner determines whether an
autopsy is necessary.
C. Ms. Graves admits in her petition that she transmitted and then destroyed relevant
evidence by deleting pictures that she said she took from her phone. Photographs taken during an
autopsy are not subject to disclosure under the law except in certain circumstances not applicable to
the allegations of Ms. Graves. She destroyed this evidence because she knew that her actions in
taking unauthorized photographs of an autopsy that could potentially be the subject of a criminal
investigation was unlawful and contrary to the policies of Lubbock County. The fact that she
destroyed evidence raises an inference that the evidence would have been unfavorable to her on the
issues in her lawsuit.
D. The cause of Ms. Graves’ termination is not Defendants but her own misconduct in
connection with her performance of her duties as a Lubbock County employee including, but not
limited to, unauthorized disclosure of information from cases under active investigation by the
Medical Examiner’s office in violation of Texas law and in violation of the procedures of the
Medical Examiner’s office and the Lubbock County employment manual.
E. The allegation that Dr. Matshes was performing an autopsy as an “unlicensed
physician” is false. Dr. Matshes holds certifications in anatomic pathology and forensic pathology
from the American Board of Pathology. He is a Fellow in the College of American Pathologists.
He also holds specialty certification in anatomic pathology as a Fellow of the Royal College of
Physicians and Surgeons of Canada. He is licensed to practice medicine in California, Florida, and

New Mexico. Dr. Matshes has assisted with autopsies at the Lubbock County Medical Examiner
Office but always under the supervision and direction of Dr. Andrews, the Lubbock County Medical
Examiner, who is licensed to practice medicine in Texas. In connection with his assistance at those
autopsies, Dr. Matshes was not involved in the diagnosis or treatment of any mental or physical
disease or disorder or a physical deformity or injury by any system or method nor did he attempt to
effect cures of those conditions. Thus, he was not “practicing medicine” as defined by Texas law.
Tex. Occ. Code § 151.002(13). In fact, the activities performed by Dr. Matshes are routinely
performed by unlicensed technicians in medical examiners’ offices throughout Texas.
F. The allegation that Dr. Matshes was taking excessive tissue for research is likewise
unsupported. Dr. Matshes has never removed organs or tissues from forensic autopsies for
research purposes. Graves has no qualifications to determine what should be done in an autopsy
to determine the cause of death.
G. Any conduct of Defendants related to Plaintiff was in the performance of the
contract to operate the Medical Examiner’s office. Accordingly, Defendants are immune from
liability under the doctrine of governmental immunity, which has not been waived.
H. Any conduct of Defendants related to Plaintiff was in the performance of the
contract to operate the Medical Examiner’s office. Accordingly, Defendants are immune from
liability under the doctrine of official immunity. Guerrero v. Tarrant County Mortician Services
Co., 977 S.W.2d 829 (Tex. App.—Fort Worth, 1998, rev. denied).
I. Defendants and Lubbock County have a common interest in the proper operations of
the Medical Examiner’s Office. NAAG had the right and duty to report to the County facts about

County employees related to the proper operation of the county Medical Examiner’s Office.
Defendants therefore enjoy a qualified privilege from any liability.
J. Defendants have an interest in the proper operation of the Medical Examiner’s
Office and were therefore privileged to discuss Plaintiff’s job performance with Lubbock County in
a good faith exercise of their rights.
K. Defendants allege that under the facts and circumstances of this case, an award of
exemplary damages would violate substantive and procedural due process in violation of the Fifth
and Fourteenth Amendments of the United States Constitution in the following respects:
1. It is unconstitutional to allow a citizen to be punished upon the basis of a
standard as vague and ill-defined as the common law concepts upon which exemplary
damages can be awarded.
2. It is unconstitutional to allow a citizen to be punished for any conduct when
the citizen is unable to determine, prior to the hearing, what the standards used in assessing
that punishment will be and where the jury has almost total and unbridled discretion in
determining the amount of that punishment. The standards for assessing exemplary
damages in this case are unconstitutionally vague, and allow the jury to assess exemplary
damages based upon criteria wholly unrelated to Defendants’ conduct and completely
beyond the control of Defendants.
3. Because the award of exemplary damages has quasi-criminal attributes, both
as to rationale and effect, it is unconstitutional to award exemplary damages based solely
upon a mere preponderance of the evidence which may be provided by the slightest
circumstantial evidence, coupled with speculation and innuendo.

4. It is unconstitutional for a state to allow a private citizen with a profit motive
to seek punishment of another citizen without the full protections of the Texas and United
States Constitutions, including privilege against self-incrimination, and the right not to be
placed in double jeopardy. Defendants allege that the fiction that punishment in civil suits
does not invoke the constitutional protections, whereas the same punishment in a criminal
suit does, should be abandoned. In either event, the state is forcing Defendant to forfeit
valuable property interests, and it matters not to Defendants whether they lose their property
to the state or to a private litigant.
5. It is unconstitutional to impose grossly excessive or arbitrary punishments
on a tortfeasor.
L. In the alternative, an award of exemplary damages, as sought by Plaintiff under the
facts and circumstances of this case, would violate the excessive fines, cruel and unusual
punishment, and due process clauses of the Texas Constitution.
M. Plaintiff’s right to recover exemplary damages is limited in accordance with the
provisions of §§ 41.001-13, Tex. Civ. Prac. & Rem. Code Ann.
WHEREFORE, PREMISES CONSIDERED, Defendants pray that their special exceptions
be sustained and that Plaintiff be ordered to replead, that Plaintiff take nothing by reason of her suit
and that Defendants be discharged from all liability and recover its costs, and for such other and
further relief to which they may show themselves justly entitled, either at law or in equity.

RINEY & MAYFIELD LLP

Thomas C. Riney – TBN 16935100
triney@rineymayfield.com
Alex L. Yarbrough – TBN 24079615
ayarbrough@rineymayfield.com
320 South Polk Street, Suite 600
Maxor Building
Amarillo, Texas 79101
(806) 468-3200; Fax (806) 376-4509
By_______/s/Thomas C. Riney_____________
Thomas C. Riney
ATTORNEYS FOR DEFENDANTS NAAG PATHOLOGY

LABS, P.C.; DR. EVAN MATSHES; AND DR. SAM
ANDREWS

CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of Defendants’ Original Answer was this
29th day of March, 2019, served on all known counsel of record in accordance with the Texas
Rules of Civil Procedure as follows:
Kevin Glasheen VIA ELECTRONIC FILING

Hayden Hatch
efile.hayden.hatch@glasheenlaw.com
GLASHEEN, VALLES & INDERMAN, LLP
1703 WEST AVENUE
AUSTIN, TEXAS 78701
ATTORNEYS FOR PLAINTIFF
__________/s/Thomas C. Riney_____________
Thomas C. Riney

2019-05-07 Defs' MTN To Dismiss - Graves

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Filed 5/7/2019 2:30 PM

CAUSE NO. 2019534246

TITA SENEE GRAVES, § IN THE 72ND DISTRICT COURT

DEFENDANTS’ MOTION TO DISMISS

TO THE HONORABLE DISTRICT COURT:

Participation Act (TCPA).

this Court the following:

DEFENDANTS’ MOTION TO DISMISS – PAGE 1 147433v1

Code Ann. § 27.003(c)

served, however, regardless of docket conditions, good cause, or agreement. Tex.

DEFENDANTS’ MOTION TO DISMISS – PAGE 2 147433v1

such, Graves is required to meet certain statutory requirements to avoid dismissal.

dismissed. In particular, Graves cannot establish by clear and specific evidence a

Moreover, even if Graves could establish her causes of action as required by

defenses of official immunity, qualified privilege, and justification. Further, Dr.

this legal action is required.

A. NAAG provides medical examiner services to Lubbock County.

DEFENDANTS’ MOTION TO DISMISS – PAGE 3 147433v1

Affidavit, ¶ 2; Ex. B, Andrews Affidavit, ¶ 2.

In a contract with Lubbock County, NAAG agreed to provide the services of

B, Andrews Affidavit, ¶ 3; see also, Ex. C, Garcia Affidavit, ¶¶ 13-15. In August of

Medical Examiner. Ex. A, Matshes Affidavit, ¶ 3.

Afterwards, NAAG entered into a second contract with Lubbock County to

provide comprehensive “full spectrum” death investigation services, including

executive oversight functions typical of a Chief Medical Examiner and oversight

administrative functions typical of the Chief Administrative Officer and Department

employment of support staff including autopsy technicians and death investigators.

Ex. A, Matshes Affidavit, ¶ 4. Further, NAAG provides death investigation services

of Criminal Procedure. Ex. A, Matshes Affidavit, ¶ 5.

DEFENDANTS’ MOTION TO DISMISS – PAGE 4 147433v1

on December 21, 2018. Ex. A, Matshes Affidavit, ¶ 4; Ex. B, Andrews Affidavit, ¶¶

relevant times. Ex. B, Andrews Affidavit, ¶ 2.

Graves was an employee of Lubbock County in the Medical Examiner’s office

the contract, Graves continued to be employed as a death investigator. Ex. A,

Matshes Affidavit, ¶ 6. Graves was an employee of Lubbock County, not NAAG,

however, is responsible for the administration and operation of the Medical

working in the Medical Examiner’s office. Ex. B, Andrews Affidavit, ¶ 7.

DEFENDANTS’ MOTION TO DISMISS – PAGE 5 147433v1

also contacted an employee at the Lubbock Police Department and a Lubbock

Representatives of Lubbock County raised concerns that confidential

information about matters in the Medical Examiner’s office was being

inappropriately or illegally disclosed. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews

potential criminal investigations, the leak of confidential information about cases

and NAAG. Ex. A, Matshes Affidavit, ¶ 7; Ex. B, Andrews Affidavit, ¶ 6.

Ex. B, Andrews Affidavit, ¶ 7.

DEFENDANTS’ MOTION TO DISMISS – PAGE 6 147433v1

Resources Director about Graves. Ex. A, Matshes Affidavit, ¶ 7. All his

communications with representatives of Lubbock County related to Graves involved

Ex. A, Matshes Affidavit, ¶ 7. Likewise, all communications of Dr. Andrews with

representatives of Lubbock County related to Graves involved the proper operation

Medical Examiner. Ex. B, Andrews Affidavit, ¶ 6.

Further, all of Dr. Matshes’ communications with representatives of Lubbock

communications with any representative of Lubbock County regarding Graves were

appropriate in connection with the proper operation of the Medical Examiner’s

in the best interest of Lubbock County. Ex. A, Matshes Affidavit, ¶ 9; Ex. B,

DEFENDANTS’ MOTION TO DISMISS – PAGE 7 147433v1

submit the following for the Court’s consideration:

A Affidavit of Dr. Evan Matshes, with attached exhibits

B Affidavit of Dr. Sam Andrews, with attached exhibits

C Affidavit of Sandra Garcia

D Plaintiffs’ Original Petition

E Defendants’ Original Answer

The determination of a TCPA motion to dismiss is a three-step analysis.