OPINION Introduction In 1975, the State Bar of Texas and the Baylor Law Review published a series of articles addressing the advisability of enacting legislation that would permit physicians to engage in âpassive euthanasiaâ[1] to assist terminally ill patients to their medically inevitable deaths.[2] One of the articles, authored by an accomplished Austin pediatrician, significantly informed the reasoning of the Supreme Court of New Jersey in the seminal decision In re Quinlan, wherein that court recognized for the first time in this country a terminally ill patientâs constitutional liberty interest to voluntarily, through a surrogate decision maker, refuse life-sustaining treatment. 355 A.2d 647, 662â64, 668â69 (N.J. 1976) (quoting Karen Teel, M.D., The Physicianâs Dilemma: A Doctorâs View: What the Law Should Be, 27 Baylor L. Rev. 6, 8â9 (Winter 1975)). After Quinlan, the advisability and acceptability of such voluntary passive euthanasia were âproposed, debated, and [ultimately] accepted in American law[] and medical ethicsâ[3] with an important exception being passive euthanasia of infants with disabilities. Edward R. Grant & Cathleen A. Cleaver, A Line Less Reasonable: Cruzan and the Looming Debate Over Active Euthanasia, 2 Md. J. Contemp. Legal Issues 99, 100â01 & n.5, 222â23 & nn.547â56 (Summer 1991). Fast-forward over four decades from Quinlan, and this court confronts, as a question of first impression, the issue of whether the committee review process outlined in Section 166.046 of the Texas Advanced Directives Act (TADA), see Tex. Health & Safety Code Ann. §§ 166.001â.209, when invoked by the attending physician for a terminally ill infant, provides sufficient procedural due process to authorize involuntary passive euthanasiaâallowing the physician to unilaterally withdraw life- sustaining treatment from the ailing child over her motherâs objectionâand thereby to cause her natural death.[4] We hold that, as applied in this instance, Mother pleadedâ- and introduced evidence supporting a viable claimâ-that the Section 166.046 committee review process did not provide her sufficient procedural due process, such that she was entitled to temporary injunctive relief. Specifically, appellants hereâ-T.L., the infant patient, and her mother, T.L., on her behalf (individually, T.L. and Mother)â-appeal from the denial of a temporary injunction sought to enjoin, under 42 U.S.C.A. § 1983, the unilateral discontinuation of the ailing childâs ongoing course of life-sustaining treatment at Appellee Cook Childrenâs Medical Center (CCMC). CCMC had affirmed this treatment decision of T.L.âs attending physician after he had invoked the committee review process set forth in Section 166.046, a key component of the TADA. In so doing, CCMC had authorized the attending physician to discontinue T.L.âs life-sustaining treatment and thereby cause her natural death if, at the end of ten days, no other physician or health care facility could be found to continue the treatment. Because Section 166.046 delegates through this process two traditional and exclusive public functionsâ(1) the sovereign authority of the state, under the doctrine of parens patriae, to supervene the fundamental right of a parent to make a medical treatment decision for her child and (2) the sovereign authority of the state, under its police power, to regulate what is and is not a lawful means or process of dyingâthe decision rendered thereby constitutes âstate actionâ within the meaning of the Fourteenth Amendment of the United States Constitution and 42 U.S.C.A. § 1983. As a state actor, then, CCMC had to comply with the procedural and substantive dictates of due process before affirming and thereby effectuating such a treatment decision. Because Mother (1) pleadedâ-and showed a probable right to recover under a viable cause of actionâ-that the committee review process set forth in Section 166.046 and followed by CCMC fails to comply with the dictates of procedural due process, at least as applied in these circumstances, and (2) established that the failure to maintain the status quo ante would result in immediate irreparable harm, the trial court erred by denying Mother temporary injunctive relief, and we reverse the trial courtâs order denying it. The Section 166.046 Procedure Because it is undisputed that Section 166.046â˛s committee review process applies to this dispute and is integral to understanding the factual background of the case, we preface our discussion of the facts with a summary of the process. The TADA defines â[l]ife-sustaining treatmentâ as treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support, such as mechanical breathing machines, kidney dialysis treatment, and artificially administered nutrition and hydration. The term does not include the administration of pain management medication or the performance of a medical procedure considered to be necessary to provide comfort care, or any other medical care provided to alleviate a patientâs pain. Tex. Health & Safety Code Ann. § 166.002(10). Section 166.046 of the TADA provides a set of procedures by which an attending physician[5] may obtain immunity from civil liability and criminal prosecution for a decision to unilaterally discontinue life-sustaining treatment against the wishes of a patient suffering from a terminal or irreversible condition[6] or against the wishes of the person responsible for the patientâs health care decisions. Id. §§ 166.045(d)â.046.[7] The centerpiece of those procedures is a review of the attending physicianâs decision by a health care facilityâs ethics or medical committee[8] in a meeting that the patient or patientâs representative is entitled to attend upon notice given no less than forty-eight hours beforehand: If an attending physician refuses to honor a patientâs advance directive or a health care or treatment decision made by or on behalf of a patient, the physicianâs refusal shall be reviewed by an ethics or medical committee. The attending physician may not be a member of that committee. The patient shall be given life-sustaining treatment during the review. The patient or the person responsible for the health care decisions of the individual who has made the decision regarding the directive or treatment decision: may be given a written description of the ethics or medical committee review process and any other policies and procedures related to this section adopted by the health care facility; shall be informed of the committee review process not less than 48 hours before the meeting called to discuss the patientâs directive, unless the time period is waived by mutual agreement; at the time of being so informed, shall be provided: a copy of the appropriate statement set forth in Section 166.052 [explaining state law, the patient's rights, and the resources available to the patient when the attending physician refuses to honor the patient's decision to continue or discontinue life-sustaining treatment]; and a copy of the registry list of health care providers and referral groups that have volunteered their readiness to consider accepting transfer or to assist in locating a provider willing to accept transfer that is posted on the website maintained by the department under Section 166.053; and is entitled to: attend the meeting; receive a written explanation of the decision reached during the review process; receive a copy of the portion of the patientâs medical record related to the treatment received by the patient in the facility for the lesser of: the period of the patientâs current admission to the facility; or the preceding 30 calendar days; and receive a copy of all of the patientâs reasonably available diagnostic results and reports related to the medical record provided under Paragraph (C). Id. § 166.046(a)â(b). If, after following the prescribed procedures, the committee âaffirm[s]â the attending physicianâs decision to discontinue â medically inappropriateâ life-sustaining treatment, â[t]he attending physician, any other physician responsible for the care of the patient, and the health care facility are not obligated to provide life-sustaining treatment after the 10th day after both the written decision and the patientâs medical recordâ are provided to the patient. Id. § 166.046(e). A physician may not, however, withhold or withdraw âpain management medication, medical procedures necessary to provide comfort, or any other health care provided to alleviate a patientâs painâ unless such care would be âmedically contraindicatedâ or âcontrary to the patientâs or surrogateâs clearly documented desire not to receive artificially administered nutrition or hydration.â Id. The physician must also make a reasonable effort to transfer the patient to another physician who is willing to comply with the treatment decision refused by the attending physician, whether within âan alternative care settingâ of the health care facility itself or another facility. Id. § 166.046(d). The ten-day time period for effectuating the attending physicianâs refusal may be extended by a district or county court only upon a finding, âby a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patientâs directive will be found if the time extension is granted.â Id. § 166.046(g). Section 166.046 does not otherwise authorize judicial review of either the attending physicianâs refusal or the written decision of the committee affirming it. See id. We now turn to the specific facts of this case, in which the Section 166.046 procedure was invoked and followed. Medical History and Procedural Background In February 2019, T.L. was born with serious, life-threatening medical complications. Mother was twenty weeks pregnant when doctors told her that T.L. suffered from a severe form of Ebsteinâs anomaly, a congenital defect in which the right atrium of the heart is enlarged and misshapen. At birth, T.L.âs heart filled ninety percent of her chest cavity, compared with forty to fifty percent for a normal newborn. T.L.âs doctors also diagnosed her with pulmonary atresia: a condition in which the pulmonary valve that is responsible for blood flow from the heart into the lungs for oxygenation is not fully formed. Complicating matters further, T.L. was born severely premature at thirty-two weeksâ gestation, with lungs insufficiently developed to adequately exchange oxygen and carbon dioxide into and out of her already-compromised cardiovascular system, and her massive heart compressed her lungs down and to the sides of her chest cavity. During pregnancy, T.L. had received oxygen from Mother, but at birth, the defects in T.L.âs cardiopulmonary system left her ability to oxygenate her own blood seriously impaired. As a result, CCMC admitted her to its Cardiac Intensive Care Unit (âCICUâ) on the day she was born, and she remains there to this day. To describe the care provided to T.L. by CCMCâs physicians, nurses, and staff as anything less than heroic would be a disservice to their labors. Shortly after T.L.âs birth, her doctors performed open-heart surgery to reconstruct and reduce the size of her right atrium, to limit the blood flow into her right ventricle, and to revise her pulmonary valve to improve blood flow into her lungs. To further assist with pulmonary circulation, the surgery included the placement of a shunt routing additional blood to the lungs. And to maintain adequate cardiopulmonary function during this and additional surgeries, T.L. was temporarily placed on a heartâlung bypass. Postoperatively, T.L. was placed on a ventilator for a time, and periodically thereafter. Unfortunately, the pressure of the ventilation over time damaged her still- developing lungs, scarring the tissue and leaving her with a chronic lung disease resembling emphysema. T.L.âs chronic oxygen insufficiency also caused another problem: overdevelopment of the vascular muscles in her lungs. When she became agitated or irritated, the muscles in her pulmonary blood vessels would clamp down, causing the blood pressure in her lungs to soar and her oxygen levels to plummet. These âcrashâ or âdyingâ events put her life in immediate jeopardy. To relieve these pulmonary hypertension crises, the CICU nursing staff would turn off the ventilator and begin to manually pump air into her lungs using a bag, while doctors administered sedatives, nitric oxide, and paralytic medications to relax the muscles. Because any number of thingsâ-from necessary medical and nursing care to simply changing her diaper or repositioning her to prevent bed soresâ-could bring on a crisis, the CICU staff scheduled as much of her care as possible during a minimal time frame to avoid triggering multiple events. T.L. might have had no crashes in a day, or she might have had as many as three, and she required round-the-clock monitoring and care. In an attempt to improve T.L.âs cardiopulmonary condition sufficiently to enable her discharge from the hospital, doctors performed multiple major heart surgeries over several months: the original surgery to reduce the size of her right atrium and place the shunt designed to improve blood flow between the heart and lungs, another to revise the shunt, and additional exploratory and other surgical procedures. According to the attending physician, one of six physicians on T.L.âs CICU team, the surgeries created âwindowsâ of seeming improvement, only to see each improvement meet with âsteps backward.â The gravest setback occurred on July 9, 2019. T.L. suffered another severe pulmonary hypertension crisis. This time, however, none of the usual treatments for relaxing her pulmonary vessels worked. The team intubated her, anesthetized her, and administered sedatives, paralytics, and nitric oxideâall to no avail. After a quick consult, her doctors performed emergency surgery to put T.L. on a form of heartâlung bypass called extracorporeal membrane oxygenation (ECMO) while they addressed the pulmonary hypertension crisis. Eventually, they were able to relax her lungs sufficiently to remove her from ECMO and return her to ventilation. Unfortunately, while T.L. had often been able to breathe without a ventilator before her crash in July 2019, enabling her to interact with Mother and her family before that event, thereafter she required mechanical ventilation continuously. To minimize the risk of triggering additional hypertensive crises due to the discomfort of the ventilator, the CICU physicians kept T.L. deeply sedated and administered pain medication intravenously. All told, by the time of the temporary injunction hearing, T.L. had ventilation and nasogastric tubes and two IVs for purposes of oxygenation, medication, hydration, and nutrition. Following the July 2019 crash, T.L.âs attending physician began to view her situation as âhopeless.â In consultation with the other CICU physicians and T.L.âs cardiothoracic surgeons, the attending physician concluded that there were no further surgical options available, no likelihood of eventual improvement, and no hope for her continued survival without repeated emergent interventions to address her recurring pulmonary hypertension crises. In light of T.L.âs irremediable cardiopulmonary complications and the consensus medical judgment that she was âsuffering,â the CICU team viewed the continuation of life-sustaining treatment as âcruelâ and âunnaturalâ and considered its discontinuation to be in her best interest. Over the course of the next couple of months, the attending and other CICU physicians began to âescalat[e]â their conversations with Mother, urging her to discontinue life-sustaining treatment and to let T.L. die naturally. The CICU nursing staff also had â multiple conversationsââ-âdays, weeks of . . . conversationsââ-with Mother, with some members eventually opting to take shifts that would not involve caring for T.L. to avoid the emotional distress of watching her suffer. Mother resisted the doctorsâ and staffâs entreaties, even to the point of avoiding contact with the physicians when possible, due to her firm belief, informed by her religious faith, that there was some solution that the doctors were just not seeing. She did not agree that T.L. was suffering in the manner represented by the CICU staff or that she was without hope of recovery. All the while, and despite the deep sedation and pain medication, T.L. continued to experience pulmonary hypertension events. In apparent response to conversations with physicians and CCMC staff, in late September or early October 2019, Mother reached out to Boston Childrenâs Hospital and Texas Childrenâs Hospital in Houston to see if either would accept a transfer of T.L. from CCMC. CCMC coordinated with both institutions, sharing heart ultrasounds, echocardiograms, cardiac catheterization data, progress notes, operative summaries, and laboratory data, as requested. T.Lâs CICU physicians also made themselves available for telephone consultations with the physicians at those institutions responsible for evaluating T.L.âs condition for transfer. In both instances, the physicians contemplating transfer agreed that there were no further surgical interventions available to relieve T.L.âs suffering and informed CCMC that their institutions would not accept her for transfer. The doctor from Boston Childrenâs contacted Mother directly to explain her institutionâs decision.[9] Having reached an intractable impasse with Mother, and reluctant to continue providing life-sustaining care without any reasonable hope of improving T.L.âs condition, on or about September 27, 2019, T.L.âs attending physician invoked the statutory procedure for discontinuing her life-sustaining treatment under Section 166.046 of the TADA by contacting the chair of CCMCâs ethics committee and requesting a consultation to that end. After first meeting with the attending physician to confirm his request for consultation and the basis thereof, the committee chair asked another member of the committee to meet with Mother to explain the committee review process and to confirm that there had not been any miscommunication between Mother and the attending physician concerning T.L.âs condition and prognosis. The conversation did not include any discussion of the possibility of withdrawing life-sustaining treatment from T.L. After this one-on-one meeting, the committee chair personally communicated with Mother about T.L.âs medical circumstances, the challenges she faced, and how CCMC could help fulfill Motherâs hopes for T.L. None of these communications included any discussion of the withdrawal of treatment recommended by the attending physician. As the next step in the committee review process, the chair asked Mother to meet with a three-member subcommittee. To accommodate Motherâs schedule, the chair scheduled the meeting on October 22, 2019, but in the end, Mother was unable to attend. On Friday, October 25, 2019, the committee chair notified Mother, in the following letter, that the full committee would hold a meeting at noon on Wednesday, October 30, 2019, to consider whether continuing to provide life-sustaining treatment to T.L. was medically inappropriate and not in her best interest: I am writing you to ask that you attend a meeting with members of Cook Childrenâs ethics committee regarding [T.L.]âs future medical care, and to explain why an ethics committee review has been requested. This meeting is part of a formal review process available under a state law called the Texas Advance Directives Act. That law allows a physician to request a formal review by the hospitalâs ethics committee when the physician feels that continuing to honor a familyâs request to provide life-sustaining treatment to a patient with a terminal or irreversible condition is medically inappropriate. As you know, [T.L.] is gravely ill, and in the professional opinion of the physicians caring for her, escalating care and continuing to provide life-sustaining treatment is medically futile and not in [T.L.]âs best interest. Enclosed is a copy of a notice we are required by law to provide you, and which includes a detailed explanation of the review process and your rights related to that process. Also enclosed is a list maintained by the Texas Department of State Health Services that identifies health care providers and referral groups that have volunteered their readiness to consider accepting transfer or to assist in locating a provider willing to accept transfer. The meeting is scheduled for Wednesday, October 30, 2019, at 12:00 p.m., and will be held in Room 1163 of the Medical Centerâs South Tower. It is very important that you attend the meeting next Wednesday so that the ethics committee can hear from you directly before making a determination regarding the appropriateness of continuing to sustain [T.L.]âs life through artificial means. The chaplain will meet you in [T.L.]âs room at 11:30 a.m., and will escort you to the meeting. You are welcome to invite any involved family members to support you at the meeting. In the meantime, please do not hesitate to call me with any questions you might have. In addition to sending the written notice, the chair spoke personally with Mother to explain what could be expected procedurally at the meeting. On October 30, 2019, CCMCâs ethics committee held the meeting as planned. Of the committeeâs twenty-five members, twenty-twoâ-nineteen of whom were CCMC employeesâ-attended the meeting. Members of the committee included physicians and other health care providers with no involvement in T.L.âs care, as well as nonmedical members including the committee chair and a parent of a former CCMC patient. Mother attended with her parents. During the two-hour meeting, the committee heard from the attending physician on behalf of himself and other physician members of the CICU team who were providing care to T.L. The attending physician recounted T.L.âs medical history and the teamâs consensus view of her prognosis. The committee also heard from Mother and her father, both of whom urged the committee to continue life-sustaining treatment for T.L. After excusing the attending physician, Mother, and her parents, the committee went into closed session to deliberate the case. After thirty to forty-five minutes of deliberations, the committee reached a unanimous decision affirming the attending physicianâs recommendation that life-sustaining treatment should be discontinued for T.L. Having excused Mother and her parents, the committee did not return to an open meeting to announce its decision. Neither did the committee formally transcribe either the presentations or its deliberations.[10] Late in the evening on the day following the meetingâ-Thursday, October 31, 2019â-the committee chair provided the statutorily required written notice of the committeeâs decision by having the nurse supervisor deliver the following letter to Mother informing her that life-sustaining treatment would be guaranteed for only ten days, through Sunday, November 10, 2019, and could be discontinued thereafter: I am writing to notify you of the recommendation of Cook Childrenâs ethics committee relating to the continuation of life-sustaining treatment for your daughter, [T.L.]. After receiving the required notice from Cook Childrenâs on October 25, 2019, you, along with your mother and father, participated in the October 30th meeting of the ethics committee. [T.L.]âs attending physician . . . was also in attendance. As previously discussed, [T.L.] has been diagnosed with severe congenital heart disease, lung disease, and pulmonary hypertension. [T.L.]âs attending physicians have determined her condition is irreversible, meaning it may be treated but will never be cured or eliminated, and, without life-sustaining treatment provided in accordance with the prevailing standard of medical care, her condition is fatal.[11] [T.L.]âs physicians feel that she is suffering. [The attending physician] provided an overview of [her] medical history and current condition to the committee, and explained that all of her physicians (including her pulmonologist, the cardiac surgeons, cardiac intensivists, and cardiologists) agree that continuing to provide life-sustaining treatment to [T.L.] is futile. The committee members also heard you express your sincere belief that [she] is not suffering, and that her condition will improve. The committee discussed the information that was presented and reviewed the benefits versus the burdens of continued treatment. After weighing all of the information presented, the committee concluded that the goal of restoring [T.L.]âs health is unattainable, that no other medical benefits can be accomplished by continuing treatment that artificially sustains her life, and that it is in [T.L.]âs best interest to allow her to die naturally. As a result, you have been informed that the committee concurs with the physiciansâ opinion that further treatment would be inappropriate, should not be continued, and that [T.L.] should be allowed to die naturally. Despite this, it is my understanding that you do not agree with this decision and desire further treatment to be given to your daughter. We will continue to provide life-sustaining treatment to [T.L.] for up to ten (10) days from the date you receive this letter, pending transfer to another facility. As you know, we have already made several unsuccessful attempts to locate a facility willing to accept [T.L.] as a patient. We will continue to make reasonable efforts to find a facility that is acceptable to you that is willing to accept [T.L.] as a patient and comply with your treatment directives. Please note that under state law, Cook Childrenâs is not obligated to provide life-sustaining treatment after the tenth day following your receipt of this letter. However, we will continue to provide artificial nutrition and hydration for as long as is medically appropriate. Along with this letter, and as you requested, you are receiving paper copies of [T.L.]âs medical records for the last thirty (30) days, including all diagnostic reports. I understand that you also recently requested an abstract of [T.L.]âs records for the entire admission, and that those records were provided to you on CD earlier this week. We appreciate the difficulty of making decisions concerning the withdrawal of artificial life support. If you have any questions or if I can be of any further assistance, please do not hesitate to contact me. The timing of the delivery of the letter left Mother with six business days in which to obtain a transfer, if possible, although the CICU team was available throughout the two intervening weekends to facilitate a transfer if one became available. At some point, Mother gave CCMC a long list of other hospitals to contact concerning a possible transfer.[12] The CICU team began to contact these hospitals during the ten-day window. Although a few hospitals considered accepting T.L. for transferâ-with some even requesting additional testing, which CCMC providedâ-none agreed to accept T.L. as a patient.[13] The attending physician spoke with many of the providers considering transfer; he objectively recounted T.L.âs medical history and then-current status but left the providers to conduct their own evaluation of her prognosis. Based upon these conversations, however, the attending physician believed a transfer was unlikely. On the last day of the ten-day period, Mother filed this suit under 42 U.S.C.A. § 1983 and Texasâs Uniform Declaratory Judgments Act, (1) alleging that CCMCâs decision to discontinue life-sustaining treatment interfered with her civil right as a parent to make treatment decisions for her minor child and violated T.L.âs civil right to life and did so without providing Mother or T.L. sufficient procedural-due-process protection; (2) seeking a declaration that Section 166.046 is constitutionally infirm under both the United States and Texas Constitutions due to a lack of substantive and procedural due process; and (3) requesting a temporary restraining order, followed by temporary and permanent injunctive relief, enjoining CCMC from discontinuing life- sustaining treatment for T.L. Mother took no issue with the care provided by CCMC and the CICU staff; indeed, she praised the hospital for its months-long effort to help T.L. Rather, Mother solely complained that Section 166.046 effectively empowered private health care providers such as CCMC to deprive their patients of fundamental rightsâlife itself and the right to determine the course of medical careâwithout due process of law. Before such a great deprivation, she said, due process requires that she and T.L. be provided certain procedural guarantees, such as adequate notice (more than forty-eight hours) and a meaningful opportunity to participate in a hearing before a neutral arbiter (not to merely attend a meeting of a medical review committee made up largely of CCMCâs employees) utilizing ascertainable standards for determining whether the continuation of life-sustaining treatment is âmedically inappropriateâ (rather than the personal judgments of the attending physician or committee members), with more than a mere ten days to seek a transfer.[14] On November 10, 2019, the trial court issued a temporary restraining order until a full hearing could be held on Motherâs request for a temporary injunction, which the parties agreed to extend due to procedural delays. In the interim, Mother continued to seek another hospital to accept the transfer of T.L., with the CICU team assisting as requested. Several amici curiae, including the Attorney General for the State of Texas, filed briefs with the trial court. At the hearing, multiple witnessesâ-including Mother, the attending physician, the committee chair, and a nurse on the CICU teamâ-testified to the factual circumstances recounted herein. The committee chair elaborated on the committee review process and the procedures employed, explained that attending physicians invoked the process â[m]aybe once a year,â and denied that the process was merely a ârubber stampâ for the physicians who treated pediatric patients at CCMC. According to the chair, Mother did not have legal counsel or, necessarily, the right to legal counsel before the committee, and Mother was not guaranteed the opportunity to present any medical opinion contrary to that of the attending physician or the CICU team. The chair agreed that the committee was the hospitalâs âdecision-making body,â[15] though the committee followed no particular evidentiary standards in making its decision; instead, the committee simply âconsider[ed]â what the attending physician and family had to say and made its decision. After the trial court considered (1) the evidence presented, including expert medical testimony concerning T.Lâs condition, treatment options, and prognosis and an extensive summary of CCMCâs efforts to find another hospital for her transfer; (2) the thorough briefing of the parties, the Attorney General (on behalf of amicus curiae the State of Texas),[16] and various other amici urging both the constitutionality[17] and unconstitutionality[18] of Section 166.046;[19] and (3) the argument of counsel, including counsel from the Office of the Attorney General urging the constitutional infirmity of Section 166.046, the trial court denied Motherâs request for a temporary injunction. Mother appeals from this ruling. Although Mother raises three issues, only her third is dispositive: that the trial court erred by denying the temporary injunction because she had shown the ânecessary elementsâ entitling her to that relief on her Section 1983 claim. Standard of Review and Law Applicable to Temporary Injunctions A temporary injunction is an extraordinary remedy that does not issue as a matter of right. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (op. on rehâg). Its purpose is to preserve the status quo of the litigationâs subject matter until a trial on the merits. Clint ISD v. Marquez, 487 S.W.3d 538, 555 (Tex. 2016). The status quo is âthe last, actual, peaceable, non-contested status which preceded the pending controversy.â In re Newton, 146 S.W.3d 648, 651 (Tex. 2004) (orig. proceeding). We review a trial courtâs decision to deny a temporary injunction for an abuse of discretion. Butnaru, 84 S.W.3d at 204; Schmitz v. Denton Cty. Cowboy Church, 550 S.W.3d 342, 363 (Tex. App.âFort Worth 2018, pet. denied) (mem. op. on rehâg). A trial court abuses its discretion if it rules in an arbitrary manner or without reference to guiding rules and principles. Butnaru, 84 S.W.3d at 211. Although a trial court does not abuse its discretion by basing its temporary injunction ruling on conflicting evidence or when some evidence of substantive and probative character exists to support its decision, a trial court does abuse its discretion by misapplying the law to established facts. Henry F. Coffeen III Mgmt., Inc. v. Musgrave, No. 02-16-00070-CV, 2016 WL 6277375, at *2 (Tex. App.âFort Worth Oct. 27, 2016, no pet.) (mem. op.); Tom James of Dallas, Inc. v. Cobb, 109 S.W.3d 877, 883 (Tex. App.âDallas 2003, no pet.). We review de novo any question-of-law rulings necessary to resolve whether a temporary injunction should issue. Tom James, 109 S.W.3d at 883; see also, e.g., Oil Field Haulers Assân v. R.R. Commân, 381 S.W.2d 183, 192â95, 197 (Tex. 1964); Camp v. Shannon, 348 S.W.2d 517, 519â20 (Tex. 1961); Sw. Greyhound Lines, Inc. v. R.R. Commân, 99 S.W.2d 263, 266â68 (Tex. 1936). To obtain a temporary injunction, an applicant must plead and prove (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at 204. The applicant bears the burden of production to offer some evidence on each of these elements, see In re Tex. Nat. Res. Conservation Commân, 85 S.W.3d 201, 204 (Tex. 2002) (orig. proceeding), but she is not required to establish that she will ultimately prevail at trial on the merits, only that she is entitled to preservation of the status quo until then. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993 ); Brooks v. Expo Chem. Co., 576 S.W.2d 369, 370 (Tex. 1979); Millwrights Local Union No. 2484 v. Rust Engâg Co., 433 S.W.2d 683, 686 (Tex. 1968). Therefore, we do not consider the ultimate merits of the underlying case and âwill not assume that the evidence taken at a preliminary hearing will be the same as the evidence developed at a full trial on the merits.â Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); Burgess v. Denton Cty., 359 S.W.3d 351, 359 n.35 (Tex. App.âFort Worth 2012, no pet.). A probable right of recovery is shown by alleging a cause of action and presenting evidence tending to sustain it. Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215, 220 (Tex. App.â-Fort Worth 2009, pet. denied). To prove probable injury, an applicant must show that she has no adequate remedy at law. Savering v. City of Mansfield, 505 S.W.3d 33, 49 (Tex. App.âFort Worth 2016, pet. denied) (op. on rehâg). An injury is irreparable if damages would not adequately compensate the injured party or if they cannot be measured by any certain pecuniary standard. Butnaru, 84 S.W.3d at 204; Frequent Flyer Depot, 281 S.W.3d at 220; cf. Guajardo v. Neece, 758 S.W.2d 696, 698 (Tex. App.â-Fort Worth 1988, no writ) (noting that to obtain a temporary injunction to enforce a real property restrictive covenant, an application âneed only prove an intent to do an act that would breach the covenantâ (emphasis added)). The allegations in this case focus on the constitutionality of the TADA. We must, however, remember that the principle of judicial restraint requires us to avoid deciding constitutional questions when a case can be decided on nonconstitutional grounds. As the Supreme Court of Texas noted in VanDevender v. Woods, [j]udicial restraint cautions that when a case may be decided on a non- constitutional ground, we should rest our decision on that ground and not wade into ancillary constitutional questions. In such cases, âthe cardinal principle of judicial restraintâif it is not necessary to decide more, it is necessary not to decide moreâcounsels us to go no further.â 222 S.W.3d 430, 432â33 (Tex. 2007) (footnotes omitted). This principle applies to appeals involving temporary injunctions. Courts should not decide constitutional issues in such cases unless it is necessary to do so. Henson v. Denison, 546 S.W.2d 898, 900 (Tex. App.âFort Worth 1977, no writ); Sobel v. City of Lacy Lakeview, 465 S.W.2d 794, 795 (Tex. App.â-Waco 1971, no writ); see also Shoppers Fair of N. Hous., Inc. v. City of Houston, 406 S.W.2d 86, 88â89 (Tex. App.âEastland 1966, writ refâd n. r. e.); State v. Markle, 363 S.W.2d 332, 336 (Tex. App.âHouston 1962, orig. proceeding); City of Houston v. Adams, 326 S.W.2d 627, 630 (Tex. AppâHouston 1959, writ refâd n.r.e.). In affirming the granting of a temporary injunction, the court stated in Texas State Board of Pharmacy v. Walgreen Texas Co., In the hearing on the temporary injunction it was not necessary for appellees to establish that they would finally prevail in their contention that the statutes were unconstitutional. From the pleadings and the evidence the trial court was convinced that appelleesâ constitutional contentions were bona fide and that irreparable harm would ensue to appellees in the event appellants were not enjoined. 520 S.W.2d 845, 848 (Tex. App.âAustin 1975, writ refâd n. r. e.) (citing Tex. Foundries v. Intâl Moulders & Foundry Workersâ Union, 248 S.W.2d 460 (Tex. 1952)); see also Markle, 363 S.W.2d at 336. Thus, if the allegations of wrongful conductâe.g., deprivation of constitutional rightsâassert a viable right to relief, the evidence introduced supports such a right, and there is evidence to establish an imminent and irreparable harm if the injunction is not granted, the party seeking temporary injunctive relief has established a right to such relief. Ebony Lake Healthcare Ctr. v. Tex. Depât of Human Servs., 62 S.W.3d 867, 871, 874 (Tex. App.âAustin 2001, no pet.). If the trial court does not make findings of fact and conclusions of law in support of its temporary injunction ruling, we must uphold the trial courtâs order on any legal theory supported by the record. Davis, 571 S.W.2d at 862; Mabrey v. SandStream, Inc., 124 S.W.3d 302, 309 (Tex. App.âFort Worth 2003, no pet.). Elements of a Section 1983 Cause of Action To state a claim under Section 1983, a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law. Davis v. Barnett, No. 2-09-207-CV, 2010 WL 3075670, at *3 (Tex. App.âFort Worth Aug. 5, 2010, no pet.) (mem. op.). Mother alleges a constitutionally protected right on behalf of T.L.â-the right to lifeâ-that the state may not deprive her of without due process. See Tennessee v. Garner, 471 U.S. 1, 9, 105 S. Ct. 1694, 1700 (1985) (â[The] fundamental interest in [one's] own life need not be elaborated upon.â). Mother also alleges her own constitutionally protected right of which the state may not deprive her without due processâ-the parental right to make decisions concerning the care, custody, and control of her child. See Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000) (describing this right as âperhaps the oldest of the fundamental liberty interestsâ). For purposes of the second element of her claim, the alleged deprivation of those rights by a person acting under color of state law, Mother contends that despite the attending physicianâs being a private physician and CCMCâs being a private health care entity, the threatened discontinuation of life-sustaining treatment pursuant to Section 166.046 is fairly attributable to the State of Texas and therefore constitutes âstate actionâ that is actionable under Section 1983. CCMC responds that Mother cannot plead a viable civil rights cause of action because it is a private entity affirming the treatment decision of private physicians and, therefore, cannot be a state actor as a matter of law. Denying the delegation of state authority to private actors through the Legislatureâs enactment of Section 166.046, CCMC argues that the statutory framework created thereby merely codifies the common law contractual rights of attending physicians to withdraw from a physicianâ patient relationship when a dispute concerning treatment arises. CCMC further asserts that the rights of conscience of all health care providers to withdraw from providing treatment they deem futile and injurious to the patient justifies this framework and that the TADAâs provision of a âsafe harborâ of statutory immunity from civil liability and criminal prosecution does nothing more than protect this valuable private right without implicating state action. Because our discussion of the state-action element provides a useful background and framework for our discussion of whether Mother sufficiently alleged a violation of a constitutional right, we examine the state-action question first in determining whether Mother pleaded a viable cause of action and showed a probable right to recover. Section 166.046â˛s Delegation of Sovereign Authority to Discontinue Life-sustaining Treatment for T.L. Over Motherâs Objection Makes CCMC a State Actor A private individual or entity is subject to Section 1983 liability when the alleged civil rights violation arises from âstate actionâ in the form of a sovereign delegation of a traditionally and exclusively public function The Fourteenth Amendment to the United States Constitution prohibits the State of Texas from âdepriv[ing] any person of life[ or] liberty . . . without due process of law.â U.S. Const. amend. XIV, § 1. Due process includes both a procedural component and a substantive component, âguarantees more than fair process,â and âprovides heightened protection against government interference with certain fundamental rights and liberty interests.â Washington v. Glucksberg, 521 U.S. 702, 719â20, 117 S. Ct. 2258, 2267 (1997); In re N.G., 577 S.W.3d 230, 235 (Tex. 2019); Doe v. Univ. of N. Tex. Health Sci. Ctr., No. 02-19-00321-CV, 2020 WL 1646750, at *4 n.2 (Tex. App.âFort Worth Apr. 2, 2020, pet. filed) (mem. op.) (âIn essence, substantive due process deals with whether the government may make a decision limiting a personâs rights while procedural due process deals with the protections that must be afforded when the government goes about making that decision.â). Because the Fourteenth Amendment is directed to the states, only conduct that can be characterized fairly as âstate actionâ will violate it. Lugar v. Edmondson Oil Co., 457 U.S. 922, 924, 102 S. Ct. 2744, 2747 (1982). Thus, the ultimate question to be answered in determining whether a person has acted under color of state law for Section 1983 purposes is the same as the ultimate question of whether state action has occurred in cases arising under the Fourteenth Amendment: Is the alleged infringement of civil rights âfairly attributable to the [s]tate?â Id. at 926â37, 102 S. Ct. at 2748â53. In other words, when considering whether the procedural and substantive components of Fourteenth Amendment due process apply to the conduct made the basis of a Section 1983 claim, conduct that meets the state-action requirement of the Fourteenth Amendment also constitutes action under color of state law under Section 1983. West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254â55 (1988). Consistent with the text and structure of the Fourteenth Amendment, the state- action doctrine distinguishes the government from individuals and private entities. Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019); Brentwood Acad. v. Tenn. Secondary Sch. Athletic Assân, 531 U.S. 288, 295â96, 121 S. Ct. 924, 930â31 (2001). âBy enforcing that constitutional boundary between the governmental and the private, the state-action doctrine protects a robust sphere of individual liberty.â Halleck, 139 S. Ct. at 1928. Under this doctrine, a private entity may nevertheless qualify as a âstate actorâ in a few limited circumstances, including (1) when the private entity performs a function âtraditionally exclusively reserved to the State,â see, e.g., Jackson v. Metro. Edison Co., 419 U.S. 345, 352â54, 95 S. Ct. 449, 454â55 (1974); (2) when the government compels the private entity to take a particular action, see, e.g., Blum v. Yaretsky, 457 U.S. 991, 1004â05, 102 S. Ct. 2777, 2785â86 (1982); or (3) when the government acts jointly with the private entity, see, e.g., Lugar, 457 U.S. at 941â42, 102 S. Ct. at 2755â56. Under the public-function test for state action, â[i]t is not enough that the federal, state, or local government exercised the function in the past, or still does.â Halleck, 139 S. Ct. at 1928. Nor is it enough that the function serves the public good or the public interest in some way. Id. at 1928â29. Instead, to qualify as a traditional, exclusive public function within the meaning of the state-action doctrine, âthe government must have traditionally and exclusively performed the function.â Id. at 1929. By way of example, those functions held to be traditionally and exclusively public include running elections and operating a company town. See Terry v. Adams, 345 U.S. 461, 468â70, 73 S. Ct. 809, 813â14 (1953) (elections); Marsh v. Alabama, 326 U.S. 501, 505â09, 66 S. Ct. 276, 278â80 (1946) (company town); Smith v. Allwright, 321 U.S. 649, 662â66, 64 S. Ct. 757, 764â66 (1944) (elections); Nixon v. Condon, 286 U.S. 73, 84â89, 52 S. Ct. 484, 485â87 (1932) (elections). By comparison, a variety of functions have been held not to fall into the public- function category, including operating public-access channels on a cable system, running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity. See Halleck, 139 S. Ct. at 1929â30 (public-access channels); Am. Mfrs. Mut. Ins. v. Sullivan, 526 U.S. 40, 55â57, 119 S. Ct. 977, 987â89 (1999) (insurance payments); Natâl Collegiate Athletic Assân v. Tarkanian, 488 U.S. 179, 197 n.18, 109 S. Ct. 454, 465 n.18 (1988) (college sports); San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 544â45, 107 S. Ct. 2971, 2985â86 (1987) (amateur sports); Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S. Ct. 2764, 2772 (1982) (special education); Polk Cty. v. Dodson, 454 U.S. 312, 318â19, 102 S. Ct. 445, 449â50 (1981) (public defender); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157â63, 98 S. Ct. 1729, 1734â37 (1978) (private dispute resolution); Jackson, 419 U.S. at 352â54, 95 S. Ct. at 454â55 (electric service). Most medical treatment decisions made by private health care providers are not traditionally or exclusively public functions More specific to the circumstances of this case, most authorities hold that treatment decisions made by private health care providers do not fall within the public- function exception, even if the provider is subject to considerable state regulation in providing such care. For example, in Blum v. Yaretsky, the United States Supreme Court held that unilateral decisions made by private physicians and nursing home administrators to involuntarily discharge or to transfer Medicaid patients to lower levels of care were not state action. 457 U.S. at 1004â12, 102 S. Ct. at 2785â90. This was so even though federal regulations required the establishment of and imposed guidelines for a utilization review committee of physicians âwhose functions include[d] periodically assessing whether each patient [was] receiving the appropriate level of care, and thus whether the patientâs continued stay in the facility [was] justified.â Id. at 994â 95, 102 S. Ct. at 2781. Nor did the fact that the state regulated the nursing homes and adjusted the payment of benefits in response to the discharge and transfer decisions make those decisions state action. Id. at 1007â12, 102 S. Ct. at 2787â90. âThose decisions ultimately turn[ed] on medical judgments made by private parties according to professional standards that [were] not established by the State.â Id. at 1008, 102 S. Ct. at 2788. Accordingly, they were neither traditionally nor exclusively public functions. Id. at 1011â12, 102 S. Ct. at 2789â90; see also Gray v. Woodville Health Care Ctr., 225 S.W.3d 613, 615â16 (Tex. App.âEl Paso 2006, pet. denied) (holding no state action by private physician and private nursing home in decision to return elderly Parkinsonâs patient to nursing home for hospice care). Similarly, a majority of federal circuits hold that a private mental health care provider or entity is not a state actor when it involuntarily commits a mentally ill individual, even if the commitment is pursuant to state law and the individual is brought for treatment by officers of the state. For example, in Spencer v. Lee, the Seventh Circuit rejected the application of the public-function exception to a private physician and a private hospital because the involuntary commitment of the mentally ill is not traditionally or exclusively a function of the state. 864 F.2d 1376, 1379â82 (7th Cir. 1989). Citing Blackstoneâs Commentaries on the Laws of England and noting that the ânotorious lunatic asylumâ of London nicknamed âBedlamâ actually started as a private institution, the court observed that the history of such involuntary commitments demonstrated they were not exclusively the prerogative of the state, but included private self-help. Id. at 1380â81 (â[I]t was representative of private medieval institutions to which the insane were committed to have their demons exorcised.â). The court explained that as a matter of practicality, and oftentimes self-defense or self-help, private action in such matters was necessary: âIf a person displays symptoms of acute and violent mental illness, his family or physicianâ[or] in an appropriate case a passerby or other strangerâmay have to act immediately to restrain him from harming himself or others, and there may be no public institution at hand.â Id. at 1381 (âWhen family members commit a person who has just tried to kill himself, they do not, by virtue of this action, become state actors subject to suit under [S]ection 1983.â). In Bass v. Parkwood Hospital, the Fifth Circuit adopted the reasoning of the Seventh Circuit regarding the inapplicability of the public-function exception, agreeing that the unilateral, involuntary commitment of a mentally ill individual by a private physician in a private hospital was not state action. 180 F.3d 234, 241â43 (5th Cir. 1999) (interpreting Mississippi law); see also Lewis v. LawâYone, 813 F. Supp. 1247, 1253â57 (N.D. Tex. 1993) (mem. & order) (holding, under Texas law, that the voluntary commitment and retention of an individual for mental health treatment by a private physician and private hospital was not done under color of state law for purposes of supporting a federal civil rights action, in part upon the persuasive historical context of private involuntary mental illness commitments recounted by the Seventh Circuit to reject the application of the public-function exception). Nevertheless, when the private treatment decision is one traditionally and exclusively within the sovereign prerogative of the state, the public-function exception applies. In West v. Atkins, the United States Supreme Court recognized that a private physician may be deemed a state actor when he provides medical care to prison inmates who are in the stateâs exclusive custody. 487 U.S. at 54â57, 108 S. Ct. at 2258â60. Although the Court did not invoke the public-function exception in so holding, its reasoning implied its application, i.e., because the state was traditionally and exclusively obligated to provide medical care to prison inmates in its custody, the care provided by a private physician contracted to provide such care was fairly attributable to the state. See id., 108 S. Ct. at 2258â60. Moreover, in emphasizing the exclusive custodial nature of the treatment decision, the Court likened the care provided by the private physician to care provided by physicians employed directly by the state to treat incarcerated and involuntarily committed patients. See id., 108 S. Ct. at 2258â60; Estelle v. Gamble, 429 U.S. 97, 103â04, 97 S. Ct. 285, 290â91 (1976) (holding that by reason of the stateâs deprivation of a prisonerâs liberty to care for himself, the state assumes the duty to provide adequate medical care to those whom it incarcerates); see also Youngberg v. Romeo, 457 U.S. 307, 314â25, 102 S. Ct. 2452, 2457â63 (1982) (holding that the substantive component of Fourteenth Amendment due process requires the state to provide mental patients involuntarily committed to state institutions with such services as are necessary to ensure their reasonable safety from themselves and others). Summarizing these decisions, when the state deprives patients of their ability to care for themselves medically through the exclusive custodial authority of the state, the provision of such care becomes a public function and the treatment decisions of the private physicians and entities providing such care constitutes state action. By way of contrast, in DeShaney v. Winnebago County Department of Social Services, the Court held that county social services employees had no constitutional duty to protect a minor child from his abusive fatherâeven after receiving reports of possible abuse, briefly transferring custody to a local hospital during treatment of suspicious injuries, and monitoring the childâs well-being thereafterâbecause the tragic neurological injuries eventually inflicted by the father occurred while the child was in his custody, not the stateâs, and his abuse was therefore not fairly attributable to the state. 489 U.S. 189, 194â201, 109 S. Ct. 998, 1002â06 (1989). Declining to extend the reasoning of Estelle and Youngberg, the DeShaney Court explained that these cases afford petitioners no help. Taken together, they stand only for the proposition that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individualâs liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needsâe.g., food, clothing, shelter, medical care, and reasonable safetyâit transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. The affirmative duty to protect arises not from the Stateâs knowledge of the individualâs predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. In the substantive due process analysis, it is the Stateâs affirmative act of restraining the individualâs freedom to act on his own behalfâthrough incarceration, institutionalization, or other similar restraint of personal libertyâwhich is the âdeprivation of libertyâ triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means. Id. at 199â200, 109 S. Ct. at 1005â06 (citations and footnotes omitted). The fact that the state had temporarily exercised sovereign authority over the child by obtaining a court order granting not just physical, but legal, custody of the child to the hospital for treatment purposes did not change the analysis because the hospital had discharged the child after treatment and the state had returned him to the legal custody of his father before the subject abuse occurred: The EstelleâYoungberg analysis simply has no applicability in the present case. Petitioners concede that the harms [the child] suffered occurred not while he was in the Stateâs custody, but while he was in the custody of his natural father, who was in no sense a state actor. While the State may have been aware of the dangers that [the child] faced in the free world, it played no part in their creation, nor did it do anything to render him more vulnerable to them. That the State once took temporary custody of [the child] does not alter the analysis, for when it returned him to his fatherâs custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individualâs safety by having once offered him shelter. Under these circumstances, the State had no constitutional duty to protect [the child]. Id. at 201, 109 S. Ct. at 1006 (footnote omitted). Critically, by distinguishing Estelle and Youngberg due to the change in legal custody from the state back to the father, the Court implicitly recognized the exclusive authority of the state to admit the child to the hospital and consent to treatment while the child was in the stateâs legal custody. See id. Stated differently, the Court tacitly acknowledged that treatment decisions for minor patients in the legal custody of the state mirror those made for patients who are in the legal custody of the state via incarceration or involuntary civil commitment. The test is whether the state is exclusively responsible for the medical well-being of the individual patient. If so, treatment decisions for that patient constitute state action. Despite relating to medical treatment and decisions, none of these cases deals with a physician and hospitalâs joint decision to withdraw life-sustaining treatment against the wishes of a patient or patientâs representative. Thus, we must look beyond this case law to inform our resolution of the question presented here: whether the decision to discontinue life-sustaining treatment for a minor patient such as T.L. is a traditionally and exclusively sovereign decision fairly attributable to the state. Despite the fact that most medical decisions do not involve state action, only the sovereign authority of the state may override a parentâs refusal to consent to recommended treatment for her child Both traditionally and exclusively, a medical treatment decision made for a minor child, contrary to the desires of the childâs parents, is the sovereign prerogative of the state as parens patriae. Stated differently, if a parent refuses to consent to medical treatment recommended for the welfare of a child, the stateâand only the stateâhas the sovereign authority to override the parentâs refusal and to consent to the recommended treatment on behalf of the minor patient. Ordinarily, an attending physician, being neither a natural parent nor parens patriae, cannot both recommend a course of treatment for a minor patient and then consent to the treatment so recommended on behalf of his patient. Extraordinarily, emergent circumstances excuse a physicianâs administration of lifesaving treatment to a child in the absence of parental consent. But, uniquely, the committee review process established by Section 166.046 is the only means by which a physician may discontinue an ongoing course of life-sustaining treatment to hasten the natural death of a child over the objections of her parent. Absent parens patriae authority exclusively attributable to the state, such an action is without legal sanction and likely subject to criminal prosecution. The state as parens patriae To understand the application of this authority to the present circumstances, we must provide some background of its scope. ââParens patriae,â literally âparent of the country,â refers traditionally to the role of the state as sovereign and guardian of persons under legal disability.â Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 600 n.8, 102 S. Ct. 3260, 3265 n.8 (1982) (quoting Blackâs Law Dictionary 1003 (5th ed. 1979)). âTraditionally, the term was used to refer to the Kingâs power as guardian of persons under legal disabilities to act for themselves.â Hawaii v. Standard Oil Co. of Cal., 405 U.S. 251, 257, 92 S. Ct. 885, 888 (1972). Under this sovereign authority, as to minors, â[t]he state thus act[s] upon the assumption that its parentage supersedes all authority conferred by birth on the natural parents, [and] takes upon itself the power and right to dispose of the custody of children as it shall judge best for their welfare.â In re Barry, 42 F. 113, 118 (S.D.N.Y. 1844), approved by and attached as appendix to Ex parte Burrus, 136 U.S. 586, 594â95 & n.1, 10 S. Ct. 850, 853 & n.1 (1890) (referring to parens patriae as a âcommon-law functionâ of the state). As explained by the United States Supreme Court in Schall v. Martin, there are only two possible decision makers when contemplating the welfare of children, i.e., their natural parents and the state as parens patriae: Children, by definition, are not assumed to have the capacity to take care of themselves. They are assumed to be subject to the control of their parents, and if parental control falters, the State must play its part as parens patriae. In this respect, the [child]âs liberty interest may, in appropriate circumstances, be subordinated to the Stateâs âparens patriae interest in preserving and promoting the welfare of the child.â 467 U.S. 253, 265, 104 S. Ct. 2403, 2410 (1984) (citations omitted) (quoting Santosky v. Kramer, 455 U.S. 745, 766, 102 S. Ct. 1388, 1401 (1982)); Ex parte McIntyre, 558 S.W.3d 295, 300 n.3 (Tex. App.âFort Worth 2018, pet. refâd) (per curiam) (quoting Schall). And as observed by Justice Scalia in Reno v. Flores, ââ[Children], unlike adults, are always in some form of custodyâ and where the custody of the parent or legal guardian fails, the government may (indeed, we have said must) either exercise custody itself or appoint someone else to do so.â 507 U.S. 292, 302, 113 S. Ct. 1439, 1447 (1993) (citation omitted) (quoting Schall, 467 U.S. at 265, 104 S. Ct. at 2410). Parens patriae, which originated in the since-amended constitutional grant of âoriginal jurisdiction and general controlâ[20] over minors to district courts, has a long history in Texas jurisprudence: While a minor child is not âpropertyâ within the ordinary meaning of that term, nor is the right to [the child's] custody based upon any property right, [her] welfare has always been of such paramount importance, both to [the child] and society, as to require at the hands of some branch of government a supervisory control, and this control was anciently exercised by the courts of chancery in England, and under our system, as well as our Constitution, this power is exclusively vested in the district courts and the judges thereof, as is expressly provided in article 5, § 8 of our state Constitution. Green v. Green, 146 S.W. 567, 569 (Tex. App.âAmarillo 1912, writ dismâd) (holding even absent statutory divorce or habeas jurisdiction, district court had inherent constitutional authority to act to guard the welfare of the subject children), holding approved by Worden v. Worden, 224 S.W.2d 187, 189 (Tex. 1949); see Ex parte Bartee, 174 S.W. 1051, 1054 (Tex. Crim. App. 1915) (observing that it is the âprerogativeâ of the state, âarising out of its power and duty, as parens patriae, to protect the interests of infantsâ (quoting Lindsay v. Lindsay, 100 N.E. 892, 894 (Ill. 1913))); Ex parte Reeves, 103 S.W. 478, 480 (Tex. 1907) (explaining that Article V, § 8 of the Texas Constitution of 1876 granted district courts âoriginal jurisdiction and general controlâ over minors and that such jurisdiction under the common law included promoting âthe highest welfare of the infant, where there is already a guardian, natural or legal, by controlling the person of the infant, and by removing [the infant] personally from the custody of its natural or legal guardian, even from the custody of [his] own parentsâ (quoting 3 Pomeroyâs Equity § 1307 (3d ed.))); Wright v. Wright, 285 S.W. 909, 910 (Tex. App.âSan Antonio 1926, no writ) (âThe district court holds a constitutional supervisory control and supervision of all infants, and the court had the power and authority to issue orders necessary and proper for the welfare of the infants.â); see also Tex. Const. art. V, § 8 (amended 1973 and 1985); Tex. Const. of 1845, art. IV, § 15 (providing âthe district courts shall have original . . . jurisdiction and . . . general control over . . . minors, under such regulations as may be prescribed by lawâ). Parens patriae overrides a parentâs medical treatment decision only in limited circumstances It is axiomatic that parents enjoy a fundamental right to the care, custody, and control of their children. See Troxel, 530 U.S. at 65â66, 120 S. Ct. at 2060 (recounting the constitutional history of parental rights generally); Santosky, 455 U.S. at 753, 102 S. Ct. at 1394â95 (discussing â[t]he fundamental liberty interest of natural parents in the care, custody, and management of their childâ); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554 (1978) (âWe have recognized on numerous occasions that the relationship between parent and child is constitutionally protected.â); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442 (1944) (âIt is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.â); In re A.B., 437 S.W.3d 498, 502 (Tex. 2014) (quoting Troxel, stating that parents possess a fundamental right to make decisions concerning âthe care, the custody, and control of their childrenâ); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (âThe natural right existing between parents and their children is of constitutional dimensions.â); Legate v. Legate, 28 S.W. 281, 282 (Tex. 1894) (âThe law recognizes the parent as the natural guardian of, and entitled to the custody of, his minor child, so long as he discharges the obligation imposed upon him by social and civil law, of protecting and maintaining his offspring.â). This right includes the right of parents to give, withhold, and withdraw consent to medical treatment for their children. In Parham v. J.R., the United States Supreme Court observed that parents have a natural right, coupled with a ââhigh dutyâ to recognize symptoms of illness and to seek and follow medical adviceâ on the childâs behalf: Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. The same characterizations can be made for a tonsillectomy, appendectomy, or other medical procedure. Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments The fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parentsâ authority to decide what is best for the child. 442 U.S. 584, 602â04, 99 S. Ct. 2493, 2504â05 (1979). Indeed, because the interest of a minor patient in a treatment decision âis inextricably linked with the parentsâ interest in and obligation for the welfare and health of the child, the private interest at stake is a combination of the childâs and parentsâ concerns.â Id. at 600, 99 S. Ct. at 2503 (emphasis added). In Miller ex rel. Miller v. HCA, Inc., the Supreme Court of Texas reaffirmed the authority of parents to make medical treatment decisions for their children: The Texas Legislature has likewise recognized that parents are presumed to be appropriate decision-makers, giving parents the right to consent to their infantâs medical care and surgical treatment. A logical corollary of that right, as the court of appeals here recognized, is that parents have the right not to consent to certain medical care for their infant, i.e., parents have the right to refuse certain medical care. 118 S.W.3d 758, 766 (Tex. 2003) (citations omitted). Moreover, the court confirmed that the authority of the parents is subject only to the parens patriae authority of the state to âsuperveneâ their refusal to consent to treatment recommended for the welfare of their child. Id. at 766â67 (quoting Bowen v. Am. Hosp. Assân, 476 U.S. 610, 627 n.13, 106 S. Ct. 2101, 2113 n.13 (1986)); see Bowen, 476 U.S. at 627, 106 S. Ct. at 2112â13 (âIn broad outline, state law vests decisional responsibility in the parents [of disabled infants], in the first instance, subject to review in exceptional cases by the State acting as parens patriae.â). Confirming the necessity of obtaining a court order to supervene the decisional authority of parents, Miller cited two earlier decisions, Mitchell v. Davis and O.G. v. Baum. 118 S.W.3d at 767 n.26. In Mitchell, by refusing the motherâs application for writ of error,[21] the court had previously confirmed that the only entity with the authority to interfere with the rights and duties of parents to consent to, withhold, or withdraw medical treatment from their child is the state through its police powers. 205 S.W.2d 812, 813â14 (Tex. App.â-Dallas 1947, writ refâd). Affirming the order of the district court awarding temporary custody to a Dallas County juvenile officer to obtain lifesaving medical treatment for the motherâs seriously ill child, the Dallas Court of Civil Appeals concluded, We have given due consideration to the argument made of the motherâs natural and constitutional right to [her child's] care and custody. While a considerable amount of discretion is vested in a parent charged with the duty of maintaining and bringing up her children, the right of [the child] and his mother here to live their own lives in their own way is not absolute. âWhile ordinarily the natural parents are entitled to the custody and care of their child, this is not an absolute and unconditional right. The State has such an interest in the welfare of its citizens as will authorize the enactment of suitable legislation by which the State may assume the custody of children and the parents may be deprived of the custody thereof where the parents abandon the children or neglect them in such manner as to cause them to become a public charge, or where the parents otherwise prove to be unsuitable.â Id. at 815 (quoting Dewitt v. Brooks, 182 S.W.2d 687, 690 (Tex. 1944)). As a result, Mitchell stands for the proposition that even the temporary deprivation of a parentâs right to make medical decisions for her child on the grounds of medical necessity implicates the stateâs parens patriae authority to protect children. Similarly, in Baum, the First Court of Appeals in Houston held that the trial court did not abuse its discretion by rendering an order granting temporary managing conservatorship to Harris County Child Protective Services for the purpose of consenting to an intraoperative blood transfusion during surgery to save the arm of a sixteen-year-old Jehovahâs Witness. 790 S.W.2d 839, 840â41 (Tex. App.âHouston [1st Dist.] 1990, orig. proceeding). Due to a tenet of their faith that prohibits blood transfusions, the minor patientâs parents objected to the order and sought mandamus relief on the grounds that the order deprived them of their authority to refuse a blood transfusion for their son, thereby impairing their right to freely exercise their religion and their right of privacy. Id. at 840. Relying on United States Supreme Court precedent holding that the stateâs interest in preserving a childâs health and well-being may prevail over a parentâs religious liberty, the court of appeals rejected the Baumsâ constitutional challenge to the stateâs authority to supervene their decision-making authority. Id. at 841 (citing Jehovahâs Witnesses v. King Cty. Hosp., 278 F. Supp. 488, 504â05 (W.D. Wash. 1967), affâd, 390 U.S. 598, 598, 88 S. Ct. 1260, 1260 (1968), and quoting Prince, 321 U.S. at 166â67, 64 S. Ct. at 442, with emphasis: âThe right to practice religion freely does not include liberty to expose . . . the child . . . to ill health or death.â). By citing Mitchell and Baum, therefore, the Supreme Court of Texas confirmed in Miller the âeither/orâ nature of medical decision-making for minor patients, i.e., that such a decision can be made only by the parents or the state. Moreover, Miller expressly denied treating physicians common law authority to treat a minor patient without first obtaining the consent of the parents or the state, absent emergent medical circumstances. 118 S.W.3d at 767â68. In Miller, physicians evaluating a mother admitted to the hospital in premature labor discovered an infection dangerous to the motherâs life that could cause them to induce delivery. Id. at 761. Physicians informed the parents that early induction would likely result in stillbirth of the child or severe impairments associated with prematurity including cerebral palsy, brain hemorrhaging, blindness, lung disease, pulmonary infections, and mental retardation. Id. at 761â62. When asked whether to treat the child upon birth, the parents informed the doctors that they wanted no heroic measures performed and asked the physicians to let nature take its course. Id. at 762. When asked by hospital administrators to sign a consent form allowing resuscitation per hospital policy, the father refused. Id. at 763. A neonatologist, whom the hospital administration had placed in the delivery room to evaluate the infantâs condition upon birth, provided the premature newborn resuscitative treatment, including bagging, intubation, and ventilation to oxygenate her blood. Id. Although the child initially responded well to this treatment, within a few days of her birth, she suffered a catastrophic brain hemorrhage, resulting in virtually every one of the complications of prematurity predicted by the physicians. Id. at 763â 64. In affirming the judgment of the Fourteenth Court of Appeals, which reversed a $60 million judgment for the parents, HCA, Inc. v. Miller ex rel. Miller, 36 S.W.3d 187, 190â91 (Tex. App.â-Houston [14th Dist.] 2000), the Supreme Court of Texas observed that the parents had argued unsuccessfully in the court of appeals that, absent a court order, neither the motherâs physicians nor the hospital could supervene their refusal to consent to resuscitative treatment for their premature newborn: The court [of appeals] acknowledged that the Natural Death Act[22] did not âimpair or supersede any legal right a person may have to withhold or withdraw life-sustaining treatment in a lawful manner.â But the court noted that the parties had not cited, and the court did not find, any authority allowing a parent to withhold urgently-needed life-sustaining medical treatment from a non-terminally ill child. Thus, the court concluded that, to the extent an infantâs condition is not certified as terminal, a health care provider is under no duty to follow a parentâs instruction to withhold urgently-needed life-sustaining medical treatment. The court noted that when non-urgently-needed or non-life- sustaining medical treatment is proposed for a child, a court order is needed to override a parentâs refusal to consent to the treatment because a determination of such issues as the childâs safety, welfare, and best interest can vary under differing circumstances and alternatives. But the court held that when the need for life-sustaining medical treatment is or becomes urgent while a non-terminally ill child is under a health care providerâs care, and when the childâs parents refuse consent to treatment, a court order is unnecessary to override that refusal. According to the court, no legal or factual issue exists to decide about providing such treatment because a court cannot decide between impaired life versus no life at all. Given this backdrop, the court concluded that the Millers had no right to deny the medical treatment given to [their newborn daughter] and that no court order was necessary to overcome their refusal to consent. Id. at 765 (citations omitted). Although the Supreme Court of Texas agreed with the court of appeals that a court order was not a prerequisite for supervening the parentsâ refusal of consent in this instance, the reasoning employed by Miller clarified that the only circumstances justifying a health care providerâs providing medical treatment to a minor patient without the express consent of the parentsâ-or, in the face of express refusal of consent, a court orderâ-were those involving the provision of emergency medical care to save the life of the child: Providing treatment to a child under emergent circumstances does not imply consent to treatment despite actual notice of refusal to consent. Rather, it is an exception to the general rule that a physician commits a battery by providing medical treatment without consent. As such, the exception is narrowly circumscribed and arises only in emergent circumstances when there is no time to consult the parents or seek court intervention if the parents withhold consent before death is likely to result to the child. Though in situations of this character, the physician should attempt to secure parental consent if possible, the physician will not be liable under a battery or negligence theory solely for proceeding with the treatment absent consent. . . . . Further, the emergent circumstances exception acknowledges that the harm from failing to treat outweighs any harm threatened by the proposed treatment, because the harm from failing to provide life-sustaining treatment under emergent circumstances is death. And as we acknowledged in Nelson v. Krusen[, 678 S.W.2d 918, 925 (Tex. 1984) (op. on reh'g)], albeit in the different context of a wrongful life claim, it is impossible for the courts to calculate the relative benefits of an impaired life versus no life at all. Id. at 768 (emphasis added) (citations omitted). Having established that absent emergent circumstances necessitating life- sustaining treatment only state action in the form of a court order can supervene the refusal of parents to consent to recommended treatment, Miller applied âthese guiding principlesâ to find that such emergent circumstances existed upon the premature delivery of the Millersâ newborn, focusing primarily on the inability of the neonatologist to assess the medical condition of the premature newborn until actual delivery. See id. at 768â71. Federal law affirms the exclusive sovereignty of parens patriae as to medical decisions for minors Although ultimately concluding in Miller that the common law sufficed to dispose of the issues before it, the Supreme Court of Texas briefly acknowledged the clear regulatory directives of the federal Child Abuse Prevention and Treatment Act (CAPTA), 42 U.S.C.A. §§ 5101â16i and its implementing regulations.[23] Id. at 771. But cf. 80 F.R. 16577-03 (repealing implementing regulations as unnecessary due to subsequent amendments to CAPTA). As the court acknowledged, CAPTA requires state intervention through the child protective services system when parents withhold their consent to life-sustaining treatment for disabled infants: [Appellee] HCA argues that the federal âBaby Doeâ regulations are part of Texas law and forbid any denial of medical care based on quality-of-life considerations. While we do not disagree with HCAâs assertion as a general proposition, HCA cites 42 U.S.C. § 5106a(b)(2)(B) as support for its contention that the Baby Doe regulations were âscrupulously followed in this caseâ and âfaithful adherence to public policy established by the regulations should not be thwarted through civil liability in damages â But 42 U.S.C. § 5106a(b)(2)(B) provides that a federally-funded state must implement âprocedures for responding to the reporting of medical neglectâ which include: authority, under State law, for the State child protective services system to pursue any legal remedies, including the authority to initiate legal proceedings in a court of competent jurisdiction, as may be necessary to prevent the withholding of medically indicated treatment from disabled infants with life-threatening conditions. Assuming that this provision applies here, it states that Texas must provide a mechanism by which the child protective services system can initiate legal proceedings to prevent the withholding of medical treatment from infants. And the Family Code and Texas Administrative Code contain such provisions. But it is undisputed that neither the Hospital nor HCA initiated or requested child protective services to initiate legal proceedings to override the Millersâ âwithholding of medical treatmentâ by refusing to consent to [their daughter's] treatment. Thus, the federal funding regulations appear to contemplate legal proceedings to override the lack of parental consent, and they do not answer the question of whether [the neonatologist] committed a batter by providing treatment without doing so. Further, we agree with the court of appealsâ conclusion that the disposition of that issue âis governed by state law rather than federal funding authorities.â Miller, 118 S.W.3d at 771 (emphasis added) (citations omitted). To put this discussion in context, HCA had argued that the federal regulations implementing CAPTA did not permit withholding life-sustaining treatment from the Millersâ daughterâ-as the Millers had requestedâ-unless the likely complications of her prematurity rendered her condition medically untreatable. See id.; HCA, Inc., 36 S.W.3d at 192 n.10, 196â97. By way of contrast, the Millers had argued that these same regulations required HCA to seek a court order to override their refusal of consent. See Petitionersâ Reply Brief on the Merits, Miller ex rel. Miller v. HCA, Inc. (No. 01-0079), at 17 (âTexas uses the Child Protective Services program to comply with Baby Doe funding prerequisites blessing the CPS process advocated by the Millers.â) (accessible at http://www.search.txcourts.gov/Case.aspx?cn=01-0079&coa=cossup) (last visited July 23, 2020). But, as we explain below, CAPTA supports each of these contentions, which are not mutually exclusive. Despite the inapplicability of CAPTA regulations to Millerâs circumstances, the Supreme Court of Texasâs acknowledgement of the regulationsâ general application was in accordance with the Texas Legislatureâs confirmation of those regulations. After submission of Miller but before the courtâs decision, the Legislature added Section 166.010 to the TADA and made it effective June 20, 2003. Act of June 1, 2003, 78th Leg., ch. 1228, § 2, 2003 Tex. Gen. Laws 3481, 3481, 3485 (codified at Tex. Health & Safety Code Ann. § 166.010). In doing so, the Legislature expressly subjected the entirety of the TADA, including the decision-making process of Section 166.046, âto applicable federal law and regulations relating to child abuse and neglect to the extent applicable to the state based on its receipt of federal funds.â Act of June 1, 2003, 78th Leg., ch. 1228, § 2, 2003 Tex. Gen. Laws 3481, 3481; see R.R. Street & Co. v. Pilgrim Enters., Inc., 166 S.W.3d 232, 247â48 (Tex. 2005) (holding that provision of Solid Waste Disposal Act expressly making definitions of âsolid wasteâ subject to federal law and regulations incorporates federal domestic sewage exclusions); Bradley v. State ex rel. White, 990 S.W.2d 245, 248â50 (Tex. 1999) (holding provision of Texas Government Code authorizing proceeding to remove mayor of general-law municipality, by making proceeding âsubject to the rules governing a proceeding or trial in a justice court,â incorporates Texas Rule of Civil Evidence 605 thus prohibiting city aldermen from both testifying and adjudicating), revâg 956 S.W.2d 725, 738â39 (Tex. App.âFort Worth 1997) (holding phrase âsubject toâ means ânot in conflict withâ); STS Gas Servs., Inc. v. Seth, No. 13-05-463-CV, 2008 WL 152229, at *4 (Tex. App.âCorpus ChristiâEdinburg Jan. 17, 2008, no pet.) (mem. op.) (observing phrase âsubject toâ means, inter alia, âgoverned or affected byâ (quoting Blackâs Law Dictionary 1425 (6th ed. 1990))). We presume that the Legislatureâs amendment of the TADA was with full knowledge of the decision of the court of appeals in Miller and the issues presented for the Supreme Court of Texasâs review. See Traxler v. Entergy Gulf States, Inc., 376 S.W.3d 742, 748 (Tex. 2012) (âWe presume the Legislature is aware of relevant caselaw when it enacts or amends statutes.â); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (âAll statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it.â (quoting McBride v. Clayton, 166 S.W.2d 125, 128 (Tex. 1943))). Although the court of appeals held that the TADA granted parents the right to withhold or withdraw life- sustaining treatment from their terminally ill children, it did so in a manner that invited the Legislature to clarify that right in the context of prematurely born infants. See Miller, 36 S.W.3d at 193â95. In apparent response, the Legislature enacted Committee Substitute Senate Bill 1320, which the House Research Organization explained sought to clarify whether the TADA applied to pediatric patients in the following manner: CSSB 1320 would specify that the Advance Directives Act applies to health-care treatment decisions made on behalf of a minor. The act would be subject to applicable federal law and regulations relating to child abuse and neglect, insofar as the state received federal funds. House Research Org., Bill Digest, Tex. C.S.S.B. 1320, 78th Leg., R.S. (2003) (available at https://hro.house.texas.gov/pdf/ba78r/sb1320.pdf#navpanes=0); see In re Depât of Family & Protective Servs., 273 S.W.3d 637, 643 & n.6 (Tex. 2009) (orig. proceeding) (observing that, even when statutory language is clear by its terms, interpreting court may confirm clarity through consideration of legislative history). The bill analysis for the identical provisions in Committee Substitute House Bill 3009 similarly clarified that a health care or treatment decision submitted to the committee review process of Section 166.046 remained subject to both the Family Code and CAPTA: The âdefinitionsâ section of the âgeneral provisionsâ subchapter (Subchapter A) of the âAdvance Directives Act,â Chapter 166, Health and Safety Code, is amended by amending the definition of the term âhealth care or treatment decisionâ to clarify that the Act applies to minors as well as adults in accordance with the Texas Family Code and the federal law and regulations relating to child abuse and neglect to the extent they are applicable on the basis of the Stateâs receipt of federal funds. The latter phrase is added to clarify that this changes [sic] is not intended to and does not alter the status quo regarding the applicability of the state or federal law. House Comm. on Public Health, Bill Analysis, Tex. C.S.H.B. 3009, 78th Leg., R.S. (2003) (available at https://capitol.texas.gov/tlodocs/78R/analysis/html/HB03009H.htm). Confirming the need for TADA compliance with CAPTA, the Department of Family and Protective Services (DFPS) is a recipient of federal CAPTA funds. See DFPS Policy Handbooks, Child Protective Services Handbook § 1224 (accessible at https://www.dfps.state.tx.us/handbooks/CPS/Files/CPS_pg_1200.asp#CPS_1224) (last visited July 21, 2020) (âRecipients of CAPTA funds, including DFPS, are required to submit a state assurance plan every five years specifying their use, or intended use, of funds.â); see also In re M.S., No. 02-18-00379-CV, 2019 WL 1768993, at *8 (Tex. App.âFort Worth Apr. 22, 2019, pets. denied) (mem. op.) (noting that courts can take judicial notice of Handbook on appeal). Further, DFPS âis the state agency designated to cooperate with the federal government in the administration of programsâ under CAPTA. Tex. Hum. Res. Code Ann. § 40.002(c)(2). DFPS is also the state agency responsible for initiating court proceedings to obtain necessary medical treatment for children neglected by their parents.[24] Not only does CAPTA define what it means to withhold life-sustaining treatment from a disabled infant, it also delineates when such withholding by a parent constitutes medical neglect subject to exclusive state intervention: the term âwithholding of medically indicated treatmentâ means the failure to respond to the infantâs life-threatening conditions by providing treatment (including appropriate nutrition, hydration, and medication) which, in the treating physicianâs or physiciansâ reasonable medical judgment, will be most likely to be effective in ameliorating or correcting all such conditions, except that the term does not include the failure to provide treatment (other than appropriate nutrition, hydration, or medication) to an infant[25] when, in the treating physicianâs or physiciansâ reasonable medical judgment â the infant is chronically and irreversibly comatose; the provision of such treatment would â merely prolong dying; not be effective in ameliorating or correcting all of the infantâs life-threatening conditions; or otherwise be futile in terms of the survival of the infant; or the provision of such treatment would be virtually futile in terms of the survival of the infant and the treatment itself under such circumstances would be inhumane. 42 U.S.C.A. § 5106g(5). CAPTA requires states receiving funding to have procedures and programs in place providing âauthority, under State law, for the State child protective services system to pursue any legal remedies, including the authority to initiate legal proceedings in a court of competent jurisdiction,â that âmay be necessary to prevent the withholding of medically indicated treatment from infants with disabilities who have life-threatening conditions.â Id. § 5106a(b)(2)(C)(iii). As long as âmedically necessary treatmentâ will, in the reasonable medical judgment of the treating physician, âameliorat[e] or correct[]â the infantâs life-threatening condition, such states may intervene through their child protective services system to guarantee the infant receives life-sustaining treatment, even to the point of obtaining a court order on the grounds of medical neglect to override the parentsâ refusal to consent. Id. §§ 5106a(b)(2)(C)(iii), 5106g(5); see Stewartâ Graves v. Vaughn, 170 P.3d 1151, 1160 n.3 (Wash. 2007) (observing that CAPTA âconditions the receipt of federal funds for the prevention of child abuse and family protection on a stateâs willingness to establish procedures to ensure that health care providers do not withhold or withdraw lifesaving medical treatment from a disabled infant, unless such treatment would be âvirtually futileâ and âinhumaneââ). If, however, in the reasonable medical judgment of the treating physician, life-sustaining treatment would neither ameliorate nor correct the disabled infantâs life-threatening condition but would instead be âvirtually futileâ or âinhumaneâ under the circumstances, CAPTA permits the treating physician to withhold such treatment without implicating the need for state intervention but only with the consent of the parents. See 42 U.S.C.A. §§ 5106a(b)(2)(C)(iii), 5106g(5). In either scenario, the reasonable medical judgment of the attending physician merely informs the treatment recommendation; her judgment does not supplant the decision-making authority of either the parents or the state. This is particularly true in the context of parental refusal of life-sustaining treatment predicated upon religious conviction: Notwithstanding subsection (a) [acknowledging sincere religious conviction as a basis for parental medical decisions], a State shall, at a minimum, have in place authority under State law to permit the child protective services system of the State to pursue any legal remedies, including the authority to initiate legal proceedings in a court of competent jurisdiction, to provide medical care or treatment for a child when such care or treatment is necessary to prevent or remedy serious harm to the child, or to prevent the withholding of medically indicated treatment from children with life threatening conditions. Except with respect to the withholding of medically indicated treatments from disabled infants with life threatening conditions, case by case determinations concerning the exercise of the authority of this subsection shall be within the sole discretion of the State. Id. § 5106i(b) (emphasis added). As the highlighted language indicates, when parents refuse to consent to medically indicated treatment for their disabled infants with life- threatening conditions, state intervention in those states receiving CAPTA funding is mandatory, not discretionary. See id. Greater deference is given to parents when deciding whether to treat non-life-threatening conditions. See id. Therefore, in states governed by CAPTA, such as Texas, decisions concerning the withholding of life-sustaining treatment from disabled infants, while informed by the reasonable medical judgment of treating physicians, must be made, first, by the parents or, only if the parents unreasonably refuse consent to medically indicated life- sustaining treatment, by the state. See Bowen, 476 U.S. at 627 n.13, 106 S. Ct. at 2113 n.13 (âThe decision to provide or withdraw medically indicated treatment is, except in highly unusual circumstances, made by the parents or legal guardian.â). CAPTA does not contemplate any independent authority on the part of treating physicians or the hospitals where they practice to supervene the decision-making authority of parents for their disabled infants. In other words, CAPTA does not contemplate the ability of an attending physician to unilaterally discontinue life-sustaining treatment over the objection of the parents. Summarizing, it appears that to maintain the flow of federal CAPTA funding, the Legislature enacted Section 166.010 to make sure that the procedures set forth in Section 166.046 comport with the provisions and regulations of CAPTA, in particular those regulating the withholding of medically indicated treatment from disabled infants suffering from life-threatening conditions. The subjection of the TADA to CAPTA, therefore, strongly suggests that for disabled infants, such as T.L., the withdrawal of life-sustaining treatment over the objections of their parents requires either the direct or delegated intervention of the state as parens patriae for the disabled infant. Section 166.046 delegates the sovereign authority of the state to attending physicians and hospital ethics committees to supervene the refusal of parents to consent to the withdrawal of life- sustaining medical treatment from their disabled children Based upon our detailed historical analysis of medical decision-making for minor patients, we disagree with CCMCâs argument that the decision of the attending physician to discontinue life-sustaining treatment for T.L.â-as affirmed by CCMCâs ethics committee pursuant to Section 166.046âis not a treatment decision fairly attributable to the state for purposes of Section 1983 liability. As we have shown, only the state, acting as parens patriae, has the authority to supervene a parentâs refusal to consent to the withdrawal of life-sustaining support for her child. There is simply no common law exception to the contrary. Hypothetically reversing the roles of Mother and the attending physician helps to demonstrate why the current decision to discontinue life-sustaining treatment for T.L. constitutes state action. Consider if the attending physician recommended that T.L., while receiving life-sustaining treatment, undergo a cardiopulmonary transplant that, in his reasonable medical judgment, offered her a reasonable chance of full recovery.[26] If performed, the risk of death inherent in the procedure would be significant, particularly considering the risks of infection and organ rejection. 25 Tex. Admin. Code § 601.2(b)(1)(A)(ii) (listing heart transplant as a surgical cardiovascular procedure subject to risks of infection, rejection, and death). If not performed, the attending physicianâs prognosis is that T.L. will likely die in the next few months. After the physician provides Mother with this information, she refuses to consent to the procedure on the grounds that the risk of immediate death is too high, holding out hope that continuing T.L. on life-sustaining treatment will eventually offer a better option for recovery. Efforts to resolve the dispute by transferring T.L. to another physician or facility are unsuccessful. After invocation of the committee review process set forth in Section 166.046,[27] the ethics committee affirms the attending physicianâs recommendation and provides Mother with a written explanation of its decision. Tex. Health & Safety Code Ann. § 166.046(b)(4)(B). But what does that decision mean for T.L.? Section 166.046 does not authorize the doctor to go forward with a transplant against Motherâs wishes. See id. § 166.046(d), (e). Instead, Subsection (d) authorizes only a reasonable effort to transfer T.L. to another physician or facility to continue life-sustaining treatment without also performing a transplant. Id. § 166.046(d). Although Subsection (e) would absolve the attending physician and CCMC of any legal obligation to continue life-sustaining treatment after the ten-day deadline if they had deemed such treatment âmedically inappropriate,â that subsection does not appear to authorize discontinuing such treatment in this hypothetical situationâ-when the attending physician and ethics committee have determined that maintaining life-sustaining treatment for purposes of performing a medically indicated transplant is medically appropriate. Id. § 166.046(e). And although in this hypothetical T.L.âs condition would still be clearly life-threatening, the Miller test for emergent treatmentâ-when death is likely to result immediately upon the failure to perform itâ-does not appear to allow the transplant over Motherâs objection. 118 S.W.3d at 767. Accordingly, under these circumstances, the only way the attending physician and CCMC could perform the transplant would be to report the impasse with Mother as an instance of medical neglect, see Tex. Family Code Ann. § 262.101(b), and to urge DFPS to intervene to obtain a court order granting I temporary managing conservatorship for purposes of consenting to the cardiopulmonary transplant. See Baum, 790 S.W.2d at 840â41. Comparing the two scenarios, if state action would be the only way to override Motherâs refusal of the cardiopulmonary transplant recommended by the attending physician and affirmed by the ethics committee to treat T.L.âs life-threatening condition, how is it not then implicated when Section 166.046 allows the attending physician through the ethics committeeâs decision to override Motherâs refusal to discontinue life- sustaining treatment deemed âmedically inappropriateâ? CCMC never explains why state action is necessary to keep a child alive over a parentâs objection, but not to permit a child to die against the parentâs wishes. In either instance, the decision supervenes a parentâs treatment decision, a decision traditionally and exclusively a public function of the state as parens patriae. Section 166.046(e) is therefore a delegation of state authority to the attending physician, who will become a state actor in conjunction with CCMC for purposes of Section 1983 liability as soon as T.L.âs life-sustaining treatment is discontinued. D. Additionally, only the sovereign authority of the state may define what is and what is not a lawful means or process of dying CCMC argues that Section 166.046 does not implicate state action in two other respects: first, that it merely codifies the existing private contractual right of a physician to withdraw from the physicianâpatient relationship and, second, that it merely extends private medical peer review to prospective end-of-life treatment decisions to facilitate a natural and pain-free process of dying. Implicit in these arguments is that the decision to discontinue life-sustaining treatment is purely a private matter of professional medical judgment, albeit subject to state regulatory oversight. Because the treatment decision to discontinue life-sustaining treatment over the wishes of the terminally ill patient invokes not just the stateâs regulatory authority over the private practice of medicine but also the stateâs traditional and exclusive police power to determine what is and what is not a lawful means or process of dying, we disagree. The committee review process is not a mere codification or clarification of the common law tort of patient abandonment Likening Section 166.046 to a mere codification or clarification of the common law right of a physician to withdraw from a physicianâpatient relationship with reasonable notice to the patient, CCMC maintains that the attending physicianâs refusal to honor Motherâs decision to continue her daughterâs life-sustaining treatment, as affirmed through the committee review process, is solely a matter of private contract rights, not state action. CCMC infers this private contract right from one of the liability elements of the common law tort of patient abandonment that traditionally contemplates the continuation of necessary medical care and has never encompassed the termination of medically futile or otherwise inappropriate care for a terminally ill patient. CCMCâs argument thereby conflates an attending physicianâs common law right to withdraw or disengage from a physicianâpatient relationship with an alleged right of a health care facility to do so in a manner that foreseeably results in the death of the patient. To demonstrate the fallacy of this argument, a discussion of the tort of patient abandonment is necessary. In Texas, the duty of a physician to provide treatment to a patient arises from the creation of a consensual relationship: As is true of all callings, physicians are not obligated to practice their profession or render services to everyone who asks. It is only with a physicianâs consent, whether express or implied, that the doctorâpatient relationship comes into being. Thus we agree with those cases that hold that the duty to treat the patient with proper professional skill flows from the consensual relationship between the patient and physician, and only when that relationship exists can there be a breach of a duty resulting in medical malpractice. St. John v. Pope, 901 S.W.2d 420, 423 (Tex. 1995); Childs v. Weis, 440 S.W.2d 104, 106â 07 (Tex. App.âDallas 1969, no writ) (âThe relation of physician and patient is contractual and wholly voluntary, created by agreement, express or implied.â). In so contracting, the physician represents that he possesses a reasonable degree of professional skill such as is ordinarily possessed by a member of his profession generally and agrees that he will exercise that skill with reasonable care, diligence, and judgment in treating the patient. Graham v. Gautier, 21 Tex. 111, 120 (1858); Helms v. Day, 215 S.W.2d 356, 358 (Tex. App.âFort Worth 1948, writ dismâd). The common law required the physician, once engaged by the patient, to obtain the informed consent of the patient to a proposed form or course of treatment by disclosing only those risks incident to the proposed treatment that a reasonable practitioner would disclose under the same or similar circumstances. Wilson v. Scott, 412 S.W.2d 299, 302 (Tex. 1967) (op. on rehâg). In 1977, however, the Legislature replaced this common law rule with a âreasonable personâ standard that held informed consent effective only if the physician disclosed those risks of the proposed treatment that could have influenced a reasonable person in making a decision to give or withhold consent. Peterson v. Shields, 652 S.W.2d 929, 931 (Tex. 1983) (noting Legislature changed standard for disclosure from reasonable physician to reasonable person). Having thereby entered into a physicianâpatient relationship, obtained the informed consent of the patient, and then initiated the proposed form or course of treatment, the physician was prohibited by the common law from abandoning the patient by withdrawing his professional services without affording the patient a reasonable opportunity to retain another physician to continue the form or course of treatment he had initiated. See Granek v. Tex. State Bd. of Med. Examârs, 172 S.W.3d 761, 766 n.2 (Tex. App.âAustin 2005, no pet.) (op. on rehâg); King v. Fisher, 918 S.W.2d 108, 112 (Tex. App.âFort Worth 1996, writ denied). The liability elements of a patient-abandonment claim are (1) the unilateral severance of the physicianâpatient relationship by the physician, (2) without reasonable notice or without providing adequate alternative medical care, (3) at a time when there is the necessity of continuing medical attention. Granek, 172 S.W.3d at 766 n.2; King, 918 S.W.2d at 112. As explained by the Amarillo Court of Civil Appeals in Lee v. Dewbre, We believe the law is well settled that a physician or surgeon, upon undertaking an operation or other case, is under the duty, in the absence of an agreement limiting the service, of continuing his attention, after the first operation or first treatment, so long as the case requires attention. The obligation of continuing attention can be terminated only by the cessation of the necessity which gave rise to the relationship, or by the discharge of the physician by the patient, or by the withdrawal from the case by the physician after giving the patient reasonable notice so as to enable the patient to secure other medical attention. A physician has the right to withdraw from a case, but if the case is such as to still require further medical or surgical attention, he must, before withdrawing from the case, give the patient sufficient notice so the patient can procure other medical attention if he desires. 362 S.W.2d 900, 902â03 (Tex. App.âAmarillo 1962, no writ) (emphasis added) (quoting Ricks v. Budge, 64 P.2d 208, 211â12 (Utah 1937)). As the highlighted language demonstrates, the right of a physician to withdraw from a physicianâpatient relationship is not unconditional; a physician may withdraw without the permission of the patient but may do so only after giving reasonable notice to permit the patient to retain another physician to continue medically necessary care. For example, in Urrutia v. Pitino, the San Antonio Court of Civil Appeals acknowledged that professional relations between a physician and his patient are contractual in nature and may ordinarily be terminated at the will of either party. 297 S.W. 512, 516 (Tex. App.âSan Antonio 1927, no writ). Nevertheless, our sister court observed that the physicianâs right to withdraw did not encompass circumstances in which continuity of care could not be maintained and the termination of care would result in injury to or death of the patient: A physician is never justified in withdrawing from a case he has once undertaken at a critical stage when his place cannot be supplied. To withdraw means voluntarily to refuse to continue his services. If he is ever justified in so withdrawing when it is apparent that to do so must result in injury it can only be where the patient obstinately refuses to follow the treatment prescribed. It is a fact honorable to the profession that the question never seems to have been directly presented. Id. (emphasis added) (quoting Hon. Robert G. Street, The Law of Civil Liability for Personal Injuries by Negligence in Texas 782 (2d ed. 1921)).[28] Similarly, in Lee v. Moore, the Dallas Court of Civil Appeals held that âa physician who leaves a patient in a critical stage of the disease, without reason or sufficient notice to procure another medical attendant, is guilty of a culpable dereliction of duty, and is liable therefor.â 162 S.W. 437, 440 (Tex. App.âDallas 1913), revâd on other grounds, 211 S.W. 214 (Tex. 1919). Again, as articulated by this decision, the physicianâs right to withdraw is subject to a reasonable notice requirement intended to permit the patient to retain another physician to continue medically necessary care. Although the Supreme Court of Texas ultimately reversed on other grounds, it neither rejected the lower courtâs articulation of this element of the claim nor suggested that the reasonable notice requirement contemplated anything other than maintaining continuity of medically necessary care for the patient. See 211 S.W. at 215â17. As observed by CCMC, Section 166.045(c) of the TADA appears to track the liability elements of the abandonment tort: If an attending physician refuses to comply with a directive or treatment decision and does not wish to follow the procedure established under Section 166.046, life-sustaining treatment shall be provided to the patient, but only until a reasonable opportunity has been afforded for the transfer of the patient to another physician or health care facility willing to comply with the directive or treatment decision. Tex. Health & Safety Code Ann. § 166.045(c). Section 166.051 similarly provides that if an attending physician or health care facility is unwilling to honor a patientâs advance directive or a treatment decision to provide life- sustaining treatment, life-sustaining treatment is required to be provided the patient, but only until a reasonable opportunity has been afforded for transfer of the patient to another physician or health care facility willing to comply with the advance directive or treatment decision. Id. § 166.051. CCMC argues that because this language effectively codifies the common law, Sections 166.045(c) and 166.051, and by extension Section 166.046, merely clarify that the common law right of an attending physician to withdraw from a physicianâpatient relationshipžto terminate the relationship at willžextends to and includes the right to discontinue life-sustaining treatment adjudged by the physician to be medically futile or otherwise inappropriate. Compare Granek, 172 S.W.3d 766 n.2, with Tex. Health & Safety Code Ann. § 166.045(c) (withdrawal without ethics committee affirmation), § 166.046(d), (e) (withdrawal with ethics committee affirmation), § 166.051 (withdrawal by any lawful means). CCMC reasons that, by affirming nothing more than the attending physicianâs private professional medical judgment, the decision of its ethics committee to affirm the treatment decision of the attending physician is not a decision fairly attributable to the state. We disagree for four reasons. First, when asked to provide this court with any Texas authority extending the right to withdraw implied by the abandonment tort to the circumstances of this particular case, CCMC conceded that it could find no such decision. Neither have we found such a decision. Absent such authority, the hospital nevertheless asks us to simultaneously extend the right to withdraw where it has never before been extended and to conclude that such extension has always been the common law of this state. This we cannot do. Second, and relatedly, CCMCâs argument conflates the common law right to withdraw from the physicianâpatient relationship, with which we take no issue, with an alleged common law right of an attending physician to involuntarily, albeit passively, euthanize his terminally ill patient, with which the entire history of the TADA takes issue. Had there existed such a common law right, the State Bar of Texas and the Baylor Law Review need not have published their seminal series of articles on passive euthanasia in 1975, and the Legislature need not have enacted the NDA and TADA in serial response thereto. Simply put, no Texas court has ever held that an attending physician has a common law right to unilaterally withdraw from a physicianâpatient relationship with a terminally ill patient by discontinuing life-sustaining treatment over the objection of the patientâ-to quite literally terminate the private contractual relationship by causing the death of the other contracting party. Even with the âcodificationâ of the common law in 1999, there has been not a single reported decision so holding, let alone articulating what constitutes a âreasonable opportunityâ for transfer pursuant to Sections 166.045(c) and 166.051. And what constitutes a reasonable opportunity for transfer when a diligent search for another physician or health care facility to continue life-sustaining treatment is unavailing? The TADA is utterly silent. If codifying or clarifying the common law, the TADA should track the following instruction from the pattern jury charge for patient abandonment: ââReasonable noticeâ means such notice as would normally give the patient reasonable time to secure other medical attention if desired.â Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Malpractice, Premises & Products PJC 51.7 (2016). Again, the liability elements for patient abandonment contemplate the necessity of continued medical care, the wrongful termination of which causes injury to or the death of the patient. They do not contemplate passively causing the death of a patient when a transfer of care is impossible. In another health care liability context, the Supreme Court of Texas has held that granting a patient a reasonable opportunity to act is meaningless when the purpose of the opportunity is impossible to accomplish. See Nelson, 678 S.W.2d at 921 (holding that parents did not have a reasonable opportunity to discover and prosecute a health care liability claim against the defendant physician and hospital for misdiagnosis of the mother that excluded her as a genetic carrier of Duchenne muscular dystrophy when the possibility of her childâs suffering from a neuromuscular defect did not become detectable to the trained eye until well after the statute of limitations had expired; the statute thereby imposed an impossible condition). Accordingly, it cannot be said that the common law right of an attending physician to withdraw from a physicianâpatient relationship included at any time a right to involuntarily euthanize a terminally ill patient for whom a transfer of care was impossible, nor that such a right finds support among the liability elements of the patient abandonment tort.[29] Third, contrary to CCMCâs argument, the committee review process of Section 166.046 does not actually authorize the attending physician to withdraw from the physicianâpatient relationship but instead maintains the relationship even beyond the ten-day deadline for the purpose of providing the terminally ill patient with palliative care, including hydration, nutrition, and pain medication if medically appropriate. Tex. Health & Safety Code Ann. § 166.046(e)(1)â(5). In this manner, Section 166.046 clearly contemplates the maintenance of the physicianâpatient relationship through the natural death of the terminally ill patient, not its termination through the unilateral withdrawal of the attending physician. Fourth and finally, the tort of patient abandonment has no application whatsoever to the committee review process established by Section 166.046 because the common law never authorized the practice of medicine by a health care facility such as CCMC, and the Medical Practice Act expressly prohibits such facility from making any treatment decision absent the statutory authority granted by Section 166.046. The Texas Medical Practice Act[30] generally prohibits the corporate practice of medicine. See Gupta v. E. Idaho Tumor Inst., Inc., 140 S.W.3d 747, 752 (Tex. App.âHouston [14th Dist.] 2004, pet. denied) (discussing the statutory prohibition of the corporate practice of medicine). âThe purpose of [the Medical Practice Act] is to preserve the vitally important doctorâpatient relationship and prevent possible abuses resulting from lay control of corporations employing licensed physicians to practice medicine.â Id. Accordingly, contracts that facilitate the corporate practice of medicine by a hospital or clinic are illegal. See Cmty. Health Sys. Profâl Servs. Corp. v. Hansen, 525 S.W.3d 671, 678 n.1 (Tex. 2017); Doctors Hosp. at Renaissance, Ltd. v. Andrade, 493 S.W.3d 545, 548 (Tex. 2016); Watt v. Tex. State Bd. of Med. Examârs, 303 S.W.2d 884, 887â88 (Tex. App.âDallas 1957, writ refâd). The common law reflects this prohibition by imposing a nondelegable duty upon an attending physician to obtain the informed consent of his patient to any proposed form or course of treatment. See Espalin v. Childrenâs Med. Ctr. of Dallas, 27 S.W.3d 675, 686 (Tex. App.âDallas 2000, no pet.) (âHospitals have no such duty of disclosure of medical or surgical risks, nor are they required to secure a patientâs informed consent prior to surgery.â); Boney v. Mother Frances Hosp., 880 S.W.2d 140, 143 (Tex. App.âTyler 1994, writ denied) (same); Ritter v. Delaney, 790 S.W.2d 29, 31 (Tex. App.âSan Antonio 1990, writ denied) (op. on rehâg) (same); Nevauex v. Park Place Hosp., Inc., 656 S.W.2d 923, 925 (Tex. App.âBeaumont 1983, writ refâd n.r.e.) (same). As discussed above, the process of obtaining a patientâs informed consent to a form or course of treatment is a negotiation of the critical term of the physicianâpatient relationship. See Wilson, 412 S.W.2d at 302. A health care facility like CCMC is, quite literally, a third-party to this relationship; it has no common law duty to obtain or right to make a treatment decision from or for a terminally ill patient because it cannot practice medicine or enter into the underlying physicianâpatient relationship. Nevertheless, Section 166.046 not only makes a health care facility such as CCMC responsible for statutory disclosures concerning the committee review process, it authorizes the facilityâ-through the committee review processâ-to affirm the treatment decision of the attending physician; without the committeeâs approval, the attending physician must continue to provide life-sustaining treatment. Tex. Health & Safety Code Ann. § 166.046(a), (e). Through its committee review process, the health care facility, not the attending physician, decides whether to continue life-sustaining treatment for its terminally ill patient. See id. And by absolving and immunizing both the attending physician and the health care facility of any legal obligation to continue and from any civil or criminal liability for discontinuing life-sustaining treatment to their terminally ill patient, Sections 166.045(d) and 166.046(e) recognize that the health care facility has an independent duty to provide such treatment with the invocation of Section 166.046, as well as independent discretion to either continue or discontinue such treatment upon the expiration of the ten-day deadline for transfer. See id. §§ 166.045(d), .046(e). By way of contrast, both the common law tort of patient abandonment and Section 166.045(c) are attending-physician specific; the attending physician alone is responsible for reasonable notice and a reasonable opportunity to transfer. Thus, Section 166.046 does not merely clarify the common law. It completely reworks the consensual elements of the physicianâpatient relationship by delegating control of this treatment decision to the committee review process of the health care facility, authorizing what is quintessentially the corporate practice of medicine and clothing the facility with absolute, unqualified immunity from civil liability and criminal prosecution for so practicing. There is simply no common law antecedent for the committee review process established by Section 166.046(e). Summarizing, the liability elements for the patient abandonment tort have never been applied to the unilateral withdrawal of an attending physician from providing life- sustaining treatment to a terminally ill patient when the withdrawal will, within reasonable medical probability, result in the patientâs death. Nor do such elements apply to health care facilities such as CCMC. Accordingly, Sections 166.045(c), 166.046(d) and (e), and 166.051 do not merely codify a physicianâs private contractual right to withdraw from treating a terminally ill patient but instead create new, statutory authority for both an attending physician and a health care facility to withdraw from their private contractual obligations by discontinuing life-sustaining treatment and thereby facilitating the death of their patient from terminal illness or injury.[31] Again, that is authority that is traditionally and exclusively a public function of the state. State regulation of the lawful means or process of dying, naturally or otherwise, is distinguishable from state regulation of private medical practice CCMC argues that, by creating the committee review process and immunizing treatment decisions made thereby from civil liability and criminal prosecution, the Legislature merely established a âsafe harborâ for private medical peer review decisions that the courts have already found do not implicate state action. We disagree because the committee review process of Section 166.046 involves the exercise of the stateâs police power to regulate the lawful means or process of dying, naturally or otherwise; thus, it is fundamentally different from ordinary medical peer review. State regulation of private medical peer review does not ordinarily constitute state action In Goss v. Memorial Hospital System, upon which CCMC relies, the Fifth Circuit rejected a physicianâs Section 1983 procedural-due-process claim for the wrongful revocation of his staff privileges at two private hospitals because although the Texas Medical Practice Act authorizes and regulates medical peer review activity throughout the state, including by immunizing medical peer review committees and their members from civil liability, such private decisions cannot be characterized as actions taken under color of state law. 789 F.2d 353, 356 (5th Cir. 1986). In so holding, the court reasoned that, although the Medical Practice Act authorized a medical peer review committee to report its findings of a physicianâs incompetency to the Texas State Board of Medical Examiners and immunized its members from civil liability arising from the consequences of such report or investigation, the immunity granted did not make the committee generating the report an investigatory arm of the state. Id.; see also Wong v. Stripling, 881 F.2d 200, 201â02 (5th Cir. 1989) (considering similar Mississippi regulatory law in holding that private hospitalâs suspension of physicianâs staff privileges was not state action); Cole v. Huntsville Mem. Hosp., 920 S.W.2d 364, 368â71 (Tex. App.â Houston [1st Dist.] 1996, writ denied) (holding private hospitalâs denial of physicianâs reapplication for staff privileges was not state action), disapproved of on other grounds by Brown v. De La Cruz, 156 S.W.3d 560, 567 nn.40, 41 (Tex. 2004). When the Legislature subsequently repealed and recodified the Medical Practice Act in 1999, see note 30 supra, at 76, it retained the civil immunity for private medical peer review activities and effectively codified Goss by expressly disclaiming that such activities constitute state action. Tex. Occ. Code Ann. § 160.010 (civil immunity), § 160.011 (âThe reporting or assistance provided for in this subchapter does not constitute state action on the reporting or assisting medical peer review committee or its parent organization.â). The private medical peer review contemplated by Goss is easily distinguishable, however, from the medical peer review involved in overriding a patientâs refusal to consent to the withdrawal of life-sustaining treatment. The former regulates the private practice of medicine generally for purposes of public health; the latter, despite being informed by the private practice of medicine, specifically regulates what constitutes a lawful means or process of dying for purposes of civil liability and criminal prosecution. Although not exclusively created for medical peer review purposes, see note 8 supra, at 8, an ethics or medical committee created pursuant to Section 161.0315(a) and authorized by Section 166.046(a) to review an attending physicianâs refusal to comply with a patientâs or patient representativeâs directive to continue life-sustaining treatment may conduct medical peer review. See Memâl Hosp.âThe Woodlands v. McCown, 927 S.W.2d 1, 3 (Tex. 1996) (orig. proceeding) (observing âmedical committeeâ is one of two types of medical review committees created by statute). Medical peer review is generally retrospective in nature and has the intended purpose of improving standards of medical care in the future through âexacting critical analysisâ of the competence and past performance of physicians and other health care providers in âan atmosphere of confidentialityâ promoting âcandid, uninhibited communicationâ within the medical profession to facilitate such critical analysis. See id. Much of the critical analysis anticipated by Section 166.046(a) is retrospective, particularly concerning how a patient came to be subject to and sustained by life-sustaining treatment. By way of contrast, the critical aspect of the committee review process under Section 166.046 is one of prospective prognosis, i.e., given the patientâs terminal or irreversible condition, is continued life-sustaining treatment medically inappropriate? Tex. Health & Safety Code Ann. § 166.046(e) (creating a ten-day deadline for transfer only if the ethics committee affirms that continued life-sustaining treatment is âmedically inappropriateâ). Indeed, the entire purpose of this statutory process is to make a prospective treatment decision, not to review one retrospectively, and thereby to establish the means by which a terminally ill patient may lawfully die. The mechanism provided by Section 166.046 is therefore distinguishable from the process described in the cases cited by CCMC that hold medical peer review does not constitute state action. State regulation of what is and what is not a lawful means or process of dying is a traditional and exclusive public function Homicide and suicide âThe Legislature, unless it is limited by constitutional provisions imposed by the State and Federal Constitutions, has the inherent power to define and punish any act as a crime, because it is [u]ndisputedly a part of the police power of the State.â Ex parte Smith, 441 S.W.2d 544, 547 (Tex. Crim. App. 1969) (quoting State v. Hales, 122 S.E.2d 768, 770 (N.C. 1961)). The penal statutes of this state have always criminalized homicide in all its many forms, even when the crime occurred during the alleged provision of medical care. See, e.g., Grotti v. State, 273 S.W.3d 273, 275â79 (Tex. Crim. App. 2008) (affirming reversal of criminally-negligent-homicide conviction of attending physician who occluded hospital patientâs breathing tube with her finger), affâg, 209 S.W.3d 747, 753 (Tex. App.âFort Worth 2006); Smith v. State, 132 S.W.2d 868, 870â72 (Tex. Crim. App. 1939) (reversing murder-by-abortion conviction of nurse when circumstantial evidence failed to demonstrate her responsibility for perforation of patientâs uterus); Jones v. State, 141 S.W. 953, 955â66 (Tex. Crim. App. 1911) (affirming homicide conviction of attending physician who first delivered newborn infant, then brutally crushed the childâs skull and broke its neck); Saenz v. State, 479 S.W.3d 939, 952â54 (Tex. App.âSan Antonio 2015, pet. refâd) (affirming capital murder conviction of nurse who injected bleach into dialysis lines of multiple patients who died of cardiac arrest); Davis v. State, 955 S.W.2d 340, 342â46 (Tex. App.âFort Worth 1997, pet. refâd) (affirming involuntary-manslaughter conviction of oral surgeon who oversedated patient); Jones v. State, 751 S.W.2d 682, 683â87 (Tex. App.âSan Antonio 1988, no pet.) (affirming injury-to-a-child conviction of pediatric intensive care nurse who gave infant patient massive overdose of Heparin and was on duty when inordinate number of infant fatalities occurred in the hospital PICU); Jones v. State, 716 S.W.2d 142, 144â45 (Tex. App.âAustin 1986, pet. refâd) (affirming murder conviction of pediatric nurse who injected patient with an unprescribed overdose of muscle relaxant); Showery v. State, 690 S.W.2d 689, 691â96 (Tex. App.âEl Paso 1985, pet. refâd) (affirming homicide conviction of attending physician who suffocated newborn infant after botched abortion); see also Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 250 (5th Cir. 2005) (describing allegations that nurse killed as many as twenty-two hospital patients by injecting them with paralytic drug); James v. Nocona Gen. Hosp., Nos. 7:02-CV-0291-KA, 7:03-CV-004-KA, 7:03-CV-005-KA, 7:03-CV-006-KA, 7:03-CV-008-KA, 7:03-CV-009-KA, 7:03-CV-0022-KA, 7:03-CV-0034-KA, 7:03-CV-0040-KA, 7:03-CV-0042-KA, 2006 WL 3008105, at *1, *5 (N.D. Tex. Oct. 23, 2006) (mem. & order) (confirming capital murder conviction of nurse who âran amok on the wardsâ resulting in deaths of multiple hospital patients). Moreover, the consent of the decedent has never been a defense to the crime of homicide. See Walter v. State, 581 S.W.3d 957, 969 (Tex. App.âEastland 2019, pet. refâd) (affirming murder conviction and rejecting consensual sexual asphyxia defense). But cf. Tex. Penal Code Ann. § 22.06(a)(2)(B) (stating âvictimâs effective consent or the actorâs reasonable belief that the victim consented to the actorâs conduct is a defense to prosecutionâ for assault, aggravated assault, or deadly conduct if the victim knew the conduct was a risk of ârecognized medical treatmentâ). Indeed, although suicide is not and has never been a crime in this state, actively assisting an individual in committing suicide remains a homicide. Id. § 19.02(b)(1) (defining murder as âintentionally or knowingly caus[ing] the death of an individualâ); see Mullane v. State, 475 S.W.2d 924, 925â27 (Tex. Crim. App. 1971) (affirming murder with malice conviction despite victimâs having both paid defendant $900 and provided him with the murder weapon to assist him in committing suicide); Carew v. State, 471 S.W.2d 860, 861â62 (Tex. Crim. App. 1971) (affirming conviction for accomplice to murder arising from same suicide- for-hire scheme). For example, in Sanders v. State, the Court of Criminal Appeals described the distinction between passive and active assistance thusly, It is not and has not been a violation of law in Texas for a person to take his or her own life. Whatever may have been the law in England, or whatever the law may be there now with reference to suicide, or in any of the states of the federal Union, where they have so provided by statute with reference to suicide, the punishment of persons connected with the suicide, by furnishing means or agencies or affording an opportunity to the suicide to take his or her life, has not obtained and does not obtain in Texas. So far as our law is concerned, the suicide is innocent of any criminality. Therefore the party who furnishes the means to the suicide is also innocent of violating the law. It may be a violation of morals and ethics, and reprehensible, that a party may furnish another poison, or pistols, or guns, or any other means or agency for the purpose of the suicide to take his own life, yet our law has not seen proper to punish such persons or such acts. A party may furnish another with a pistol, knowing such party intends to take his own life, yet neither would be guilty of violating any statute of Texas. So it may be said of furnishing poison to the suicide. However, a party would not be justified in taking the life of the party who desires to forfeit his life by shooting the would-be destroyer at his request, for in that case it would be the direct act of the accused, and he would be guilty of homicide, although he fired a shot at the request of the would-be suicide. So it would be with reference to poison. If the suicide obtains the poison through the agency of another, that other knowing the purpose of the suicide to take his own life, the party furnishing it would not be guilty, yet if the party furnishing it know the purpose of the suicide, and he himself gives the medicine or poison by placing it in the mouth or other portions of the body, which would lead to the destruction of life, then it would be the act of the party giving, and he would not be permitted to defend against the result of such act. 112 S.W. 68, 70 (Tex. Crim. App. 1908) (emphasis added), overruled in part on other grounds by Aven v. State, 277 S.W. 1080, 1083 (Tex. Crim. App. 1925) (op. on rehâg); see also Aven, 277 S.W. at 1081â82 (quoting emphasized language from Sanders and affirming capital- murder-by-poison conviction because evidence supported defendantâs administration, not mere preparation, of arsenic for victimâs alleged voluntary ingestion with intent to end her own life); Grace v. State, 69 S.W. 529, 530â31 (Tex. Crim. App. 1902) (reversing murder conviction because charge permitted jury to convict if defendant merely placed firearm within reach of suicide who undisputedly grabbed it thereafter and killed herself); Wyler v. State, 25 Tex. 182, 187â88 (1860) (affirming murder conviction after jury properly charged concerning distinction between homicide and suicide). Accordingly, the active killing of another individual, even with the individualâs consent, has always been subject to the regulation of the state through its criminal or penal statutes. The Legislature eventually criminalized even the passive assistance of suicide, leaving no room for one individual, including a treating physician, to assist another individual, including any patient, in taking the personâs own life. See Act of May 24, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 920, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3624 (current version at Tex. Penal Code Ann. § 22.08 (âAiding Suicideâ)). Section 22.08(a) of the Texas Penal Code states, âA person commits an offense if, with intent to promote or assist the commission of suicide by another, he aids or attempts to aid the other to commit or attempt to commit suicide.â Tex. Penal Code Ann. § 22.08(a). Aiding suicide, therefore, âencompasses action which indirectly contributes to anotherâs voluntary suicide, such as providing access to poison or a gun.â Goodin v. State, 726 S.W.2d 956, 958 (Tex. App.âFort Worth 1987), affâd, 750 S.W.2d 789 (Tex. Crim. App. 1988). The crime does not include âaction on the part of an accused which directly causes the death of another, even if done at the deceasedâs request.â Id. (also quoting Sanders, 112 S.W. at 70, for same proposition). As a result, aiding suicide is a crime distinct from, but complementary to, the crime of homicide because passive assistance as defined by Section 22.08(a) is a distinct element not shared by the active assistance described by Sanders as homicide, even though in both instances the victim intends to take her own life. See id. Wrongful death As with criminal prohibitions and their consequences, civil liability for the wrongful death of another is exclusively a creation of the Legislature. See Tex. Civ. Prac. & Rem. Code Ann. § 71.002. The Supreme Court of Texas has repeatedly confirmed that there was no recognized common law cause of action for wrongful death. Kallam v. Boyd, 232 S.W.3d 774, 776 (Tex. 2007); Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 903 (Tex. 2000); Rose v. Doctors Hosp., 801 S.W.2d 841, 845 (Tex. 1990) (op. on rehâg); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 356 (Tex. 1990). This is likely because at common law any civil remedy available to the victim died with him and thereby merged into the criminal felony, which upon conviction resulted in the forfeiture of the felonâs property to the state, rendering that property unavailable for execution for damages by the victimâs estate. See Galveston, Harrisburg & San Antonio R.R. Co. v. Le Gierse, 51 Tex. 189, 199 (1879). The fact that the statutory wrongful death cause of action incorporated common law âelementsâ made it no less an exclusive creation of the state, subject solely to the amendment, modification, or repeal of the Legislature. See Moreno, 787 S.W.2d at 356. Nothing demonstrates this more than the decades-long refusal of the Supreme Court of Texas to interpret the Wrongful Death Act to include a cause of action for the death of an unborn child. In Magnolia Coca Cola Bottling Company v. Jordan, an opinion adopted from the Texas Commission of Appeals,[32] the Supreme Court of Texas held that the parents of an infant mortally injured in utero could not recover damages for his wrongful death even though the infant was subsequently born alive because, the infantâs not being a âpersonâ at the time of the wrongful conduct, the defendant owed no duty of care to him and, even had he survived, he could not have maintained a common law cause of action for his prenatal injuries. 78 S.W.2d 944, 945â50 (Tex. [Comm'n Op.] 1935), overruled by Leal v. C. C. Pitts Sand & Gravel, Inc., 419 S.W.2d 820, 822 (Tex. 1967). In so holding, the court looked by analogy to the criminal law concerning homicide: If we are to support a rule of present civil liability by analogy to criminal law, we should look to the law of this state rather than to a law said to exist in ancient days. Article 1205, Penal Code of 1925, being part of the chapter entitled âHomicide,â has been in effect at least from the time of the adoption of the Penal Code of 1857. It provides: âThe person upon whom the homicide is alleged to have been committed must be in existence by actual birth.â In view of this statute, it has been held that one cannot be convicted of homicide of a newly born child unless it is shown that at the time the offense is alleged to have been committed the child had been completely expelled from its mother, and that, after being thus born, it had an independent existence; âthat is, that the child breathed, and its blood circulated independent of its mother.â Wallace v. State, 10 Tex. [Ct.] App. 255[, 274 (1881)]. See, also, Cordes v. State, 54 Tex. Cr[im]. [] 204, [211, ]112 S.W. 943[, 947 (1908)]. Another article of the Penal Code (article 1195), a part of the chapter entitled âAbortion,â prescribes severe penalties for the destruction of the vitality or life of a child in a state of being born and before actual birth. This state, therefore, has not brought unborn children within the protection of its penal statutes defining and prescribing penalties for homicide. In other words in its laws with respect to homicide, it treats the child as having no independent existence as a human being until it has been actually and completely born. Id. at 948. Compare Wallace, 10 Tex. Ct. App. at 270â77 (holding that full-term newborn infant found with string knotted around its neck was not born alive despite evidence of spontaneous respiration because hydrostatic test employed by medical experts could not establish whether respiration had occurred before or after infant was completely expelled from motherâs body), with Wheeler v. Yettie Kersting Memâl Hosp., 761 S.W.2d 785, 785â86 (Tex. App.âHouston [1st Dist.] 1988, writ denied) (holding newborn infant of eight monthsâ gestational age not born alive despite initial vitality during near complete breech delivery because prolonged entrapment of head and neck by cervix and umbilical cord resulted in prenatal oxygen deprivation and postnatal resuscitation efforts never induced spontaneous respiration and circulation). In Leal v. C.C. Pitts Sand & Gravel, Inc., the Supreme Court of Texas subsequently modified this interpretation to the effect that as long as the unborn child was born alive, only to die of its prenatal injuries postnatally, the parents could maintain a wrongful death action because the child became a âpersonâ through live birth. 419 S.W.2d at 821â22; see also Yandell v. Delgado, 471 S.W.2d 569, 570 (Tex. 1971) (â[A] cause of action does exist for prenatal injuries sustained at any prenatal stage provided the child is born alive and survives.â). Over the course of the next half century, however, the Supreme Court of Texas adamantly refused to interpret the statute to apply to the stillborn death of an unborn child because it was the Legislature that possessed the exclusive authority to amend the statute to define âpersonâ or âindividualâ to include an unborn child never born alive. See Witty v. Am. Gen. Capital Distribs., Inc., 727 S.W.2d 503, 504, 506 (Tex. 1987) (defining the issue as one purely of legislative intent); see also, e.g., Blackman v. Langford, 795 S.W.2d 742, 743 (Tex. 1990); Tarrant Cty. Hosp. Dist. v. Lobdell, 726 S.W.2d 23, 23 (Tex. 1987). Finally, in 2003, the Legislature amended the Wrongful Death Act to expand the definition of actionable deaths to those of unborn children. Act approved June 20, 2003, 78th Leg., R.S., ch. 822, §§ 1.01â.02, 2003 Tex. Gen. Laws 2607, 2608 (current version at Tex. Civ. Prac. & Rem. Code Ann. §§ 71.001, .003); see Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 96â97 (Tex. 2004) (upholding constitutionality of Wrongful Death Act as interpreted by Witty while acknowledging amendments thereto). Not only did the Legislature expand the term âindividualâ to include âan unborn child at every stage of gestation from fertilization until birth,â it also correspondingly expanded the term âdeathâ to include the failure of an unborn child âto be born alive.â Tex. Civ. Prac. & Rem. Code Ann. § 71.001(3) (âDeathâ), § 71.001(4) (âIndividualâ). And as part of the same enactment, the Legislature similarly amended the Texas Penal Code to expand the crime of homicide to include the death of unborn children. See Act of June 20, 2003, 78th Leg., R.S., ch. 822, §§ 2.01â.02, 2003 Tex. Gen. Laws 2607, 2608 (current version at Tex. Penal Code Ann. § 1.07(a)(26) (âIndividualâ), § 1.07(a)(49) (âDeathâ), § 19.06). Critically, though expanding the homicide and wrongful death statutes to include the death of an unborn child, the Legislature exempted from criminal prosecution and civil liability a death arising from a lawful medical or health care procedure or the lawful dispensation or administration of a drug. Tex. Civ. Prac. & Rem. Code Ann. § 71.003(c)(2)â(4); Tex. Penal Code Ann. § 19.06(2)â(4); see Reese, 148 S.W.3d at 97 (discussing statutory exemptions). Viewed in the context of this background, the so-called âsafe harborâ provisions of the TADA are nothing more than the traditional and exclusive exercise of the stateâs inherent and exclusive police power to regulate the lawful means or process of dying by not only defining what constitutes a penal offense subject to criminal prosecution but also what constitutes a wrongful means of causing another individualâs death subject to civil liability. Only the state can define homicide and wrongful death to exclude the consensualâ-and therefore the nonconsensualâ-discontinuation of life-sustaining treatment from a terminally ill patient; the fact that the statutory lawfulness of the conduct depends on and is informed by the private practice of medicine makes it no less the exclusive act of the state. See Moreno, 787 S.W.2d at 356. iii. Natural death and âmercy killingâ CCMC finally contends that an attending physicianâs passively permitting a terminally ill patient to die a ânatural deathâ does not implicate state action, citing the reasoning of the United States Supreme Court in Vacco v. Quill and recognizingâ-as the Court had implicitly in Cruzan ex rel. Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 280, 110 S. Ct. 2841, 2852 (1990)â-âthe distinction between letting a patient die and making that patient die.â 521 U.S. 793, 807, 117 S. Ct. 2293, 2301 (1997). But the determination of by what means or process an individual succumbs to a terminal illness and by whose authority, if not voluntarilyâ-although informed by private medical practiceâ-clearly implicates the exclusive police power of the state to determine what constitutes a lawful means or process of dying and what constitutes a criminal homicide subject to prosecution. In Vacco, the Court observed that âwhen a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication.â Id. at 801, 117 S. Ct. at 2298. Upholding the constitutionality of New Yorkâs criminalization of assisting suicide against an equal protection challenge, the Court found this distinction rationally related to âvalid and important public interests,â such as âprohibiting intentional killing and preserving life; preventing suicide; maintaining physiciansâ role as their patientsâ healers; protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards euthanasia.â Id. at 803â09, 117 S. Ct. at 2300â02. And in Glucksberg, the companion case to Vacco, the Court upheld Washingtonâs criminalization of assisted suicide against a substantive-due-process challenge on essentially the same basis. 521 U.S. at 728â35, 117 S. Ct. at 2271â75. Thus, contrary to CCMCâs argument, Vacco and Glucksberg implicitly acknowledge that when a state legislatively authorizes a terminally ill patient to refuse life-sustaining treatment on the one hand but criminalizes physician-assisted suicide on the other, the drawing of this statutory distinction is a valid exercise of a stateâs police power to determine what is and what is not a lawful means or process of dying. It is simply not possible that the former is purely a matter of private medical practice, albeit regulated by the state, while the latter is an exercise of the stateâs police power, albeit informed by private medical practice, particularly when the end result of the physician assistance in both instances is involuntary. This is consistent with the development of the concept of ânatural deathâ in Texas. As discussed above, Texasâs homicide statutes clearly include within their ambit any proactive aiding of an individual in taking her own life, even if justified as a âmercy killingâ due to the victimâs terminally ill condition. See Hislop v. State, 64 S.W.3d 544, 544â46 (Tex. App.âTexarkana 2001, no pet.) (affirming murder conviction of forty- two-year-old disabled caretaker son despite claim that death of his eighty-year-old mother was âmercy killingâ due to poor bone cancer prognosis). With the development of mechanical ventilation and other means of advanced life support, however, it was not clear before passage of the TADA whether simply discontinuing life-sustaining treatment for a terminally ill patient would subject a merciful health care provider to criminal prosecution for homicide. See C. Anthony Friloux, Jr., Death, When Does It Occur?, 27 Baylor L. Rev. 10, 16 (Winter 1975) (âThe recent ability of physicians to control the functions of organs by external devices over which the patient has no control, and the recognition of limitations on the cessation of heart beat and respiration as signs of death, force a re-evaluation and re-examination of the entire concept of âmedical death.ââ). In the 1975 Baylor Law Review forum on passive euthanasia, renowned criminal defense attorney Percy Foreman accurately and rather presciently described the legal conundrum of the attending physician: The distinction between involuntary euthanasia by a positive act and involuntary euthanasia by omission is not always easy to discern. Suppose a patient is alive only because he is connected to a mechanical respirator. Without the machine, he would die. Attempts are made by the physician to revive him to a self-sufficient state, while the machine artificially keeps him breathing. After a period of time, the doctor concludes his efforts are futile and decides to unplug the machine. The patient dies. Is the doctorâs act of unplugging the life-supporting machine an âexternal manifestation of the doctorâs will,â that is, a positive act? Or is the act to be considered an omission by the doctor in that he is omitting to provide further lifesaving medical care? If it is an affirmative act, and without the patientâs consent, theoretically the doctor would be liable for murder. On the other hand, if it be deemed an omission, then the criminal liability of the doctor would turn on the question of duty. Although the doctor has a duty to administer ordinary means to preserve life, there is not a duty to administer âextraordinaryâ means. Ordinary treatment has been defined as âall medicines, treatments and operations which offer a reasonable hope of benefit, and which can be obtained and used without excessive expense, pain or other inconvenience. Extraordinary means are considered those which do not involve the above factors, or which, if used would offer no reasonable hope of benefit.â Once the doctor, after trying in vain to revive the patient, concludes that any further attempts are futile, then the use of the mechanical respirator is arguably âextraordinary means.â However, one writer has pointed out that such an argument is invalid in that it is clouded by a moral-legal confusion. It is submitted that once life support equipment has begun to operate on a patient, it is [fallacious] to argue that a cessation of such treatment is a mere âomission to provide the therapeutic treatment,â and not an âactâ in a legal sense. The physician must physically turn the switch to the âoffâ position. That is, in fact, positive action. This conclusion, however, is a legal one only, and is not to make a moral judgment quite so dramatic as âequating the physicianâs turning off a mechanical respirator with the gunmanâs killing for hire.â One further anomaly concerning involuntary euthanasia is that homicide cannot be committed on a person who is dead. Thus criminal liability for turning off a mechanical life-support machine may rest upon the legal definition of death. In the legal sense, this does not give the doctor much grace. The traditional definition of death is: the cessation of life . . . defined by physicians as a total stoppage of the circulation of the blood and a cessation of the animal and vital functions consequent thereon, such as respiration, pulsation, etc. Doctors have argued that the traditional definition is impractical in light of modern artificial means of continuing heartbeat and respiration almost indefinitely, and have suggested the adoption of the âfunctionalâ death, i.e. the absence of functional brain activity. However, the Texas courts adhere to the traditional definition. Therefore, although a patientâs electroencephalograph may reflect an isoelectric or flat wave pattern over a period of time, if his heart beat and respiration continue by artificial means, he is legally alive and the act of terminating the artificial means is technically the act that causes death. Percy Foreman, The Physicianâs Criminal Liability for the Practice of Euthanasia, 27 Baylor L. Rev. 54, 56â58 (Winter 1975) (citations omitted). Significantly, concluding that any exercise of the stateâs police power to exclude involuntary euthanasia or âmercy killingâ from the definition of criminal homicide would trigger due-process and equal-protection complications, Foreman wrote, The law surrounding criminal liability for acts of euthanasia is grounded on the Stateâs police power. In practice, the exercise of the police power by the states exhibits a more liberal attitude toward euthanasia, whether self-inflicted or brought about by another. Despite evidence that euthanasia is widely practiced, at least by omission, there have been few prosecutions in this country. Perhaps from the view point of the terminally ill who desire a premature death, the practice is just. It is at least accommodating. But from the perspective of euthanasia victims unwilling or unable to give consent to the premature termination of their lives, the practice of not dealing with perpetrators as the law provides might be viewed as inadequate protection of life by state actionâarguably a violation of both due process and equal protection. The gap between criminal liability in theory and in practice gives neither the physician nor the patient much comfort. While there have been no convictions in Texas for voluntary euthanasia, we end where we beganâeuthanasia is a euphemism for criminal homicide. Id. at 61 (emphasis added). To address these concerns, in 1977 the Legislature enacted the NDAâthe predecessor of the TADA, see note 22 supra, at 51âauthorizing, for the first time, a terminally ill patient to voluntarily refuse life-sustaining treatment, thereby relieving the attending physician from any legal obligation to provide such treatment over the patientâs refusal. See Act of May 28, 1977, 65th Leg., R.S., ch. 398, §§ 1â12, 1977 Tex. Gen. Laws 1085, 1085â89 (formerly Tex. Rev. Civ. Stat. Ann. art. 4590h, §§ 1â11). The NDA carefully defined the terms âlife-sustaining procedure,â âqualified patient,â and âterminal conditionâ and expressly limited the remedy to competent adult patients with terminal conditions who voluntarily executedâ-in the exact form set forth thereinâ-a written directive to withhold life-sustaining procedures. See id. §§ 2(2)â(3), (5)â(6), 3, 7. There was no provision whatsoever for the involuntary removal of life-sustaining treatment. If the patient properly executed a written directive refusing treatment, the NDA further provided that no physician or health care facility causing the withholding or withdrawal of life-sustaining procedures pursuant to the directive would be subject to civil liability âunless negligentâ and expressly disclaimed that such conduct would, for any purpose, constitute a criminal act under the Texas Penal Code. Id. §§ 6, 8(a). Nevertheless, the NDA categorically stated that â[n]othing in this Act shall be construed to condone, authorize, or approve mercy killing, or to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying as provided in this Act.â Id. § 10. The TADA retains a virtually identical prohibition against mercy killing. Tex. Health & Safety Code Ann. § 166.050. Although the NDA disclaimed any intent to âimpair or supersede any legal right or legal responsibility a person may have to effect the withholding or withdrawal of life- sustaining procedures in a lawful manner,â[33] neither Texas common law nor any statute provided other lawful means or process for withholding or withdrawing life-sustaining treatment. See Stolle v. Baylor Coll. of Med., 981 S.W.2d 709, 713â14 (Tex. App.âHouston [1st Dist.] 1998, pet. denied) (holding NDA exclusive lawful means for effectuating removal of life support from terminally ill patients). When considered in para materia with the specifically referenced homicide statute, the NDA created the very type of statutory distinction held by Vacco and Glucksberg to be a constitutional exercise of the stateâs police power to determine what is and is not a lawful means or process of dying. As anticipated by Foremanâs forum commentary, the Legislature soon thereafter supplemented the NDA with an expanded definition of legal death:[34] âA person is dead when, according to ordinary standards of medical practice, there is irreversible cessation of the personâs spontaneous respiratory and circulatory functions.â Tex. Health & Safety Code Ann. § 671.001(a). But when such a determination is precluded by âartificial means of support,â a person âis dead when, in the announced opinion of a physician, according to ordinary standards of medical practice, there is irreversible cessation of all spontaneous brain function. Death occurs when the relevant functions cease.â Id. § 671.001(b). Finally, a physician or other authorized health care provider who determines death in compliance with Section 671.001(a) âis not liable for civil damages or subject to criminal prosecution . . . based on the determination of death.â Id. § 671.002(a). As this court has reason to know, the determination of whether a person is legally dead or alive when life-sustaining treatment is withdrawn is not purely a matter of private medical practice; such a determination always implicates the exclusive police power of the state to determine the lawfulness of an individualâs death, albeit informed by private medical practice. For example, in Grotti v. State, this court reversed the criminally-negligent-homicide conviction of an intensive care physician who used her finger to âoccludeâ or block a patientâs endotracheal tube after discontinuing the patientâs mechanical ventilation and pronouncing her dead because the evidence was factually insufficient to establish that the patient was actually alive at the time of the occlusion. 209 S.W.3d at 753. In holding that the evidence was factually insufficient to support the conviction, we applied the statutory definition of âdeathâ set forth in Section 671.001, and in doing so, observed that the definition âprovides guidance to physicians, and others relying on those physiciansâ pronouncements, as to when death legally occurs in this state.â Id. at 759â61 & n.16. Agreeing with our application of this definition, the Court of Criminal Appeals ultimately affirmed our decision. 273 S.W.3d at 281â84. From an evidentiary standpoint, Grotti is an excellent example of how Texas exclusively regulates the lawful means of dying in end-of-life circumstances instead of merely regulating private medical practice generally. Grotti experienced both criminal prosecution and licensure revocation for allegedly the same treatment decision involved here, i.e., causing the death of a terminally ill patient without that patientâs or the patientâs representativeâs consent. Compare 209 S.W.3d at 754â57, with Grotti v. Tex. State Bd. of Med. Examârs, No. 03-04-00612-CV, 2005 WL 2464417, at *3â11 (Tex. App.â- Austin Oct. 6, 2005, no pet.) (mem. op.) (affirming Board of Medical Examinerâs revocation of Grottiâs license to practice medicine in Texas). But it was the alleged unlawful death of the patient, not Grottiâs alleged failure to adhere to appropriate standards of care in her private practice of medicine, that triggered the Stateâs prosecution. See Grotti, 209 S.W.3d at 779â82. In fact, when she attempted to equate the two by arguing that for double jeopardy purposes the Boardâs imposing an administrative penalty with the revocation of her license was indistinguishable from her homicide prosecution, we categorically disagreed. See id. The Grotti case exemplifies why the stateâs regulation of the lawful means of dying is clearly distinct from the stateâs regulation of the private practice of medicine. In urging us to follow the reasoning of Goss, CCMC asks us to determine that the treatment decision to discontinue life-sustaining treatment for a terminally ill infant, affirmed through the committee review process set forth in Section 166.046, is nothing more than state regulatory âoversightâ of a private treatment decision through private medical peer review. Grotti conclusively demonstrates to the contrary. The immunization of such a decision from both criminal prosecution and civil liability is not merely a âsafe harborâ for private medical peer review but is exclusively an exercise of the stateâs police power in determining whether medical treatment resulting in the death of a terminally ill patient will be lawful. See Tex. Health & Safety Code Ann. §§ 166.045(d), .047.[35] Moreover, other jurisdictions have held that the stateâs parens patriae interest in assuring the voluntariness of a decision to withdraw life-sustaining treatment implicates the stateâs police power in defining what is and what is not a lawful means or process of dying. In Cruzan, the United States Supreme Court implicitly recognized that the decision to discontinue life-sustaining treatment for even an incompetent adult patient invoked the parens patriae authority of the state: âMissouri relies on its interest in the protection and preservation of human life, and there can be no gainsaying this interest.â 497 U.S. 280, 110 S. Ct. at 2852. Both the majority and the dissent acknowledged that the stateâs parens patriae authority extended to assuring that the process through which such a decision is made results in a factually accurate and legally transparent determination of the patientâs own treatment decision. Id. at 281â82, 110 S. Ct. at 2852â 53 (recognizing Missouriâs interests in setting evidentiary and procedural standards that confirm the decision is the patientâs and not the result of abuse); id. at 315, 110 S. Ct. at 2871 (Brennan, J., dissenting) (agreeing with majority that âMissouri has a parens patriae interest in providing Nancy Cruzan, now incompetent, with as accurate as possible a determination of how she would exercise her rights under these circumstancesâ). Indeed, the majority and dissent clearly anticipate that the state will assert its parens patriae interests either directly or through the appointment of a guardian ad litem, even when the decision involves discontinuing life-sustaining treatment in a private hospital setting. See id. at 281 n.9, 318, 110 S. Ct. at 2853 n.9, 2872. By implicitly holding that the liberty interest an incompetent adult has in voluntarily refusing life-sustaining treatment is of constitutional dimensions subject only to the parens patriae protection of the state, Cruzan strengthened the precedential authority of three earlier state decisions holding that the refusal of private physicians and hospitals to discontinue such treatment constitutes state action subject to federal due-process constraints. For example, in In re Colyer, the Supreme Court of Washington held that there was a sufficiently close nexus between the stateâs exercise of its police power criminalizing homicideâwhich clearly informed the hospitalâs refusal to discontinue life-sustaining treatment without a court orderâand the stateâs general prohibitions against withdrawing or discontinuing life-sustaining treatment to find that the encroachment on the patientâs privacy interest was fairly attributable to the state. 660 P.2d 738, 741â42 (Wash. 1983). In so finding, the court held that âan adult who is incurably and terminally ill has a constitutional right of privacy that encompasses the right to refuse treatment that serves only to prolong the dying process.â Id. at 742. In essence, the court held that the stateâs regulation of the process of dying is a traditional and exclusive public function because the state, and only the state, defines what is and is not a lawful process of dying through its homicide statute; its licensure and regulation of physicians responsible for treating the dying; and its supervision of the mentally incompetent as parens patriae, including the judicial appointment of guardians. See id. The court had previously observed that such regulation of the process of dying included both the stateâs exclusive determination of when death occurred for purposes of removing life support and its provision, through its Natural Death Act, for (1) a competent adult to anticipate and effectuate by a signed, witnessed directive such removal when death appeared imminent due to an incurable injury, disease, or illness and (2) civil and criminal immunity for physicians and other health care providers who assisted in the lawful execution of said directive. Id. at 740â41. Taken together, these factors showed a sufficient nexus between the state and the prohibitions against withholding or discontinuing life-sustaining treatment âto call into play the constitutional right of privacy.â Id. at 742. Relying in part on the reasoning in Colyer, in Rasmussen v. Fleming, the Supreme Court of Arizona held that the stateâs regulation of the process of dying through its Medical Treatment Decision Act, prohibiting the withdrawal or discontinuation of life support from a terminally ill adult without the execution of a written declaration, both implicated the federal constitutional right to privacy and constituted âstate actionâ due to the regulatory authority of the state over the practice of medicine and the supervisory authority of the state over the guardianship of incapacitated persons. 741 P.2d 674, 681â82 & n.9 (Ariz. 1987). Finally, in In re Eichner, the Supreme Court, Appellate Division, of New York held that the refusal of a private hospital to withdraw life-sustaining treatment from a mentally incompetent adult patient constituted âstate actionâ in violation of the Fourteenth Amendment, reasoning that the trial court was of the view that the constitutional right to privacy was not involved in this proceeding for want of the requisite element of âstate actionâ, i. e., that Nassau Hospital was acting as a âprivateâ entity within the meaning of the Fourteenth Amendment, and its refusal to withdraw the respirator could never trigger constitutional ramifications. We cannot abide by [the trial court]âs analysis with respect to this question. True, there is case authority for the proposition that actions by a hospital are not state action. But, in determining whether âstate actionâ is present, the test does not focus on the entity qua entity. Rather, the existence of âstate actionâ for Fourteenth Amendment purposes depends on âwhether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself[."] Thus, in Schlein v. Milford Hosp., [561 F.2d 427 (2d Cir. 1977)], where the challenged activity was the rejection of staff privileges for a physician[,] an âactivityâ having minimal if any connection with the State[,] the court had little difficulty in rejecting the [f]ederally based due process claim. In stark contrast, it is the implied presence of the State, potentially capable of imposing criminal penalties and civil liability upon the hospital or medical staff, that has prompted this controversy. That the District Attorney has asserted what is essentially an adversary position in support of the hospital reflects this. State action was found to be present in Roe [v. Wade, 410 U.S. 113, 93 S. Ct. 705 (1973)] because the Texas statute imposed criminal sanctions for the performance of an abortion. Similarly, if the District Attorneyâs views prevail, the homicide statutes of this State would impose criminal penalties upon those who discontinue life-sustaining measures for [the proposed ward]. Furthermore, physicians are licensed by the State Board of Regents and, hence, their continued right to practice may be jeopardized by State action taken as a consequence of their conduct in termination-of-treatment situations. Indeed, the Stateâs parens patriae responsibility to provide continuing supervision over the affairs of an incompetent pursuant to the Mental Hygiene Law is sufficient to establish the existence of State action herein. Consequently, we find that Nassau Hospitalâs rejection of [the proposed guardian]âs request constituted State action within the meaning of the Fourteenth Amendment. 426 N.Y.S.2d 517, 540 (N.Y. App. Div. 1980) (emphasis added) (citations omitted), modified sub nom. by In re Storar, 420 N.E.2d 64 (N.Y. 1981) (retaining part of order allowing removal of artificial respiration but deleting procedures delineated by intermediate appellate court in its opinion). Earlier in the opinion, anticipating the police power distinction acknowledged by Vacco and Glucksberg, the court had articulated how the stateâs exclusive regulatory authority over the lawful means or process of dying implicated the decision to withdraw or discontinue life-sustaining treatment: Conduct which results in the death of a human being who is medically alive quite obviously implicates criminal homicide statutes. Such conduct may take the form of an act, or an omission to act where an affirmative duty to act is imposed by law. The actorâs motive, no matter how kindly, is legally irrelevant, and this remains true notwithstanding the fact that the consent of the deceased had been obtained, or that the actor firmly believed his conduct to be morally justified. Euthanasia, referred to colloquially as âmercy killing[,"] is consequently proscribed by the criminal law, and any physician who, acting on his own, removes a life-sustaining respirator arguably commits some form of homicide. Id. at 533 (footnoted omitted) (citations omitted). Despite the fact that the Court of Appeals of New York subsequently modified the lower courtâs opinion to vacate its discussion of âstate actionâ and the right of privacy in its entirety, see Storar, 420 N.E.2d at 74, both Colyer and Rasmussen found its reasoning persuasive. Rasmussen, 741 P.2d at 681â82 & n.9, 686; Colyer, 660 P.2d at 742. And, ultimately, although the United States Supreme Court did not articulate the right to privacy as encompassing a right to refuse life-sustaining treatment, Cruzan clearly agreed with the conclusion that the right to refuse such treatment was a liberty interest subject to constitutional protection: âIt cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment.â 497 U.S. at 281, 110 S. Ct. at 2853. Taken together, Colyer, Rasmussen, and Eichnerâ-and, implicitly, Cruzan, Vacco, and Glucksbergâ-recognize that the determination of what is and is not a lawful means or process of dying, naturally or otherwise, is traditionally and exclusively subject to the police power of the state, especially when the individual dying is subject to the parens patriae protection of the state. Adopting their reasoning in conjunction with the reasoning of Miller, we therefore hold that the treatment decision of an attending physician to unilaterally discontinue life-sustaining treatment for a terminally ill minor patient, over the objection of her parents, as affirmed by an ethics or medical committee through the statutory authority of Section 166.046, constitutes the exercise of (1) the sovereign authority of the state, under the doctrine of parens patriae, to supervene the fundamental right of a parent to make a medical treatment decision for her child and (2) the sovereign authority of the state, under its police power, to regulate what is and is not a lawful means or process of dying, naturally or otherwise. Accordingly, the treatment decision made by the attending physician and affirmed by CCMCâs ethics committee constitutes âstate actionâ within the meaning of the Fourteenth Amendment of the United States Constitution and 42 U.S.C.A. § 1983, as well as Article I, Section 19 of the Texas Constitution. See Tex. Workersâ Comp. Commân v. Patient Advocates of Tex., 136 S.W.3d 643, 658 (Tex. 2004) (noting that although Article I, Section 19 and the Fourteenth Amendment are textually different, we generally construe Article I, Section 19âthe due course of law clauseâin the same way as the Fourteenth Amendment). By Demonstrating a Lack of Reasonable Notice and a Meaningful Opportunity to Be Heard, Mother Has Shown a Probable Right to Relief on Her Procedural-Due-Process Claim Having established that Section 166.046 constitutes a delegation of traditional and exclusive public functions to private physicians and health care facilities, we must decide whether Mother has shown a constitutionally actionable deprivation of rights pursuant to Section 1983. Mother argues that the unilateral decision to withdraw life- sustaining treatment from T.L. pursuant to Section 166.046, overriding her refusal to consent, deprives her daughter of a vested fundamental right to life and deprives Mother of a derivative, yet vested, fundamental right to make medical decisions for her daughter in violation of federal and state due-process guarantees, both facially and as applied. We agree that Mother has shown a probable right to relief on these facts. erminally ill patients and their surrogate decision makers, including the parents of terminally ill children, have vested constitutional rights protected by due process A Section 1983 analysis requires us to identify the right that the plaintiff claims was infringed. Baker v McCollan, 443 U.S. 137, 140, 99 S. Ct. 2689, 2692 (1979). Mother contends that the threatened action of withdrawing T.L.âs life-sustaining treatment implicates T.L.âs right to life and Motherâs parental right to care, custody, and control of her child. CCMC argues that T.L.âs right to life is not implicated here because even if it were to discontinue the medical treatment that is keeping her alive, her death would be caused by her underlying disease process, not the discontinuation of medical treatment. We have already rejected this argument in discussing the implications of Cruzan, Vacco, and Glucksberg. Not only do terminally ill patients have a vested, fundamental right to decide whether to discontinue life-sustaining treatment, either individually or through surrogate decision makers, this right is subject solely to the stateâs exercise of its parens patriae and police power functions to assure the circumstances prompting and ultimately effectuating the decision are lawful. Moreover, we have also shown that parents of terminally ill children have a derivative, yet just as vested, fundamental right to make such decisions for their children, again, subject solely to the same exercise of state authority. Accordingly, when the stateâs asserted parens patriae and police power interests conflict with a parentâs rights, the stateâs interests may prevail only if strict procedural safeguards are followed. See, e.g., Troxel, 530 U.S. at 65â66, 120 S. Ct. at 2060; Santosky, 455 U.S. at 753â54, 102 S. Ct. at 1395; Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212 (1972); In re J.W.T., 872 S.W.2d 189, 194â95 (Tex. 1994) (op. on rehâg) (noting that âthe rights of the natural parent are of high importance and due process properly requires that the burden of proof to show forfeiture of parental rights rests upon [whomever challenges those rights]ââquoting Gunn v. Cavanaugh, 391 S.W.2d 723, 727 (Tex. 1965)âwhile recognizing that those rights are not absolute because âprotection of the child is paramountâ); see also A.B., 412 S.W.3d at 609 (applying Mathews v. Eldridge test[36] to procedures used to terminate parental rights and citing Rodarte v. Cox, 828 S.W.2d 65, 79 (Tex. App.â-Tyler 1991, writ denied)). Stated differently, before the state can assert its parens patriae interest in opposition to a parentâs highly protected liberty interest in making life-preserving medical decisions for her terminally ill infantâ-as codified in Family Code Section 151.001(a)(6); as acknowledged in the TADAâs provision allowing a parent to execute an advance directive for a minor child with a terminal or irreversible condition, Tex. Health & Safety Code Ann. §§ 166.031, .035; and as acknowledged by CAPTA in the context of overriding a parentâs decision to forego life-sustaining treatmentâ-it must provide sufficient procedural-due-process protections to the parent. We can easily distinguish the out-of-state authorities CCMC cites for the proposition that facilitating a natural death does not implicate a vested right. All involve mentally incompetent adult patients whose court-appointed guardians sought court orders authorizing the withdrawal of life-sustaining treatment as representatives of the patientâs wishes; thus, they are hardly supportive of a conclusion that the withdrawal of life-sustaining treatment against a patientâs or patient representativeâs wishes does not implicate a terminally ill patientâs right to life. See Woods v. Commonwealth, 142 S.W.3d 24, 40, 42 (Ky. 2004) (affirming constitutionality of statute allowing court-appointed guardian ad litem to make decision to withdraw life-sustaining treatment from permanently unconscious adult patient because statute recognized âa distinction between an affirmative intent to kill and a passive decision[---through a third party acting in good faith and in patient's best interest---]to allow a natural death to occur in accordance with a patientâs constitutional liberty interest and common law right of self- determinationâ); In re Guardianship of Tschumy, 853 N.W.2d 728, 731â32, 747 (Minn. 2014) (noting, in case in which mentally incompetent adult patientâs court-appointed guardian desired to withdraw his life-sustaining treatment and âall interested partiesâ agreed, that to do so would not result in due-process deprivation because the disease process, not the stateâs action through the âlawful authorityâ of guardian, caused the death); Quinlan, 355 A.2d at 654, 669â70 (noting that removal of life-sustaining treatment from adult patient in persistent vegetative state in accordance with court- appointed surrogateâs decision would not be homicide but rather a lawful death from natural causes). But regardless of the mechanism that ultimately causes T.L.âs death, when a terminally ill patient or her surrogate decision maker (especially a parent of a minor patient with her own individual liberty interest) actively opposes the withdrawal of life-sustaining treatment, the right to life is clearly implicated. CCMC confuses a patientâs initial consent to health care treatment with the continuation of that treatment in the life-sustaining treatment context. If T.L. dies after CCMC, through her attending physician, discontinues her life-sustaining treatmentâ- and if no action or inaction of CCMC, its staff, or any other person âhastens her deathâ in violation of the TADAâ-presumably, she will die of the natural disease process. But because the life-sustaining treatment has already begun with Motherâs consent and has continued for some time, there is no dispute that life-sustaining treatment is what is keeping her alive currently in accordance with Motherâs wishes. CCMCâs and the attending physicianâs belief that T.L.âs life now is being harmed more than it is being helped by such treatment does not change this fact.[37] The issue in these types of cases is not that the life-sustaining treatment has no effect because â[s]trictly speaking, if a physician can keep the patient alive, such care is not medically or physiologically âfutile;â however, it may be âfutileâ on philosophical, religious or practical grounds.â See Causey v. St. Francis Med. Ctr., 719 So.2d 1072, 1074 (La. Ct. App. 1998). This concept is implicit in the holdings of Vacco, Woods, and Quinlan and was expressly acknowledged in Tschumy by that courtâs emphasizing what it was not holding: âNothing we say in this opinion should be viewed as prohibiting any interested family member or employee of the hospital or other health care facility from looking to the courts if there is a dispute over what is in the wardâs best interest.â 853 N.W.2d at 748. By enacting the TADA with Section 166.046(e), the Legislature knowingly moved from authorizing voluntary passive euthanasia, as originally contemplated by the NDA, to authorizing involuntary passive euthanasia.[38] See OâCallaghan, supra, at 529â31, 538, 567 (observing that the point of advance directives and surrogate decision makers is to respect the individual autonomy of terminally ill patients and to facilitate their voluntary decision to discontinue life-sustaining treatment). CCMC essentially argues that, because both types of euthanasia passively result in a natural death, the voluntariness of the decision does not implicate the patientâs right to life. Nothing could be further from the truth. The entire constitutional premise of Cruzan, as confirmed by Vacco and Glucksberg, is that the liberty interest a terminally ill patient has in individual autonomy may overcome a stateâs interest in preserving her life and thereby her right to voluntarily refuse life-sustaining treatment. There is simply no constitutional equivalent for involuntarily depriving a terminally ill patient of her life against her wishes.[39] Indeed, the very form prescribed for an advance directive[40] contemplates solely a voluntary refusal of life-sustaining treatment by a terminally ill patient: âThis is an important legal document known as an Advance Directive. It is designed to help you communicate your wishes about medical treatment at some time in the future when you are unable to make your wishes known because of illness or injury.â Tex. Health & Safety Code Ann. § 166.033 (emphasis added). And Section 166.037 states categorically that â[t]he desire of a qualified patient, including a qualified patient younger than 18 years of age, supersedes the effect of a directive.â Id. § 166.037. By giving the deciding âvoteâ to an ethics or medical committee in the event of a conflict between an attending physician and his terminally ill patient or surrogate decision maker about whether to continue life-sustaining treatment if no other provider will accept a transfer for continued treatment, Section 166.046(e) unquestionably trumps the patientâs or surrogate decision makerâs decision to continue living for whatever additional amount of time she may have before the natural disease process overcomes the life-sustaining treatment.[41] Thus, for the purposes of due-process analysis, the patientâs right to life is at stake and, derivatively, the right of a parent to decide whether to preserve her childâs life. See Parham, 442 U.S. at 600, 99 S. Ct. at 2503 (observing, because interest of a minor patient in treatment decision âis inextricably linked with the parentsâ interest in and obligation for the welfare and health of the child, the private interest at stake is a combination of the childâs and parentsâ concernsâ (emphasis added)). The process afforded T.L. and Mother Having determined that vested fundamental rights are at stake, we must next examine whether T.L. and Mother were afforded sufficient process by comparing what they received with what was due. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S. Ct. 1148, 1154 (1982); Brokaw v. Mercer Cty., 235 F.3d 1000, 1020 (7th Cir. 2000) (explaining that state action depriving a constitutionally protected interest in life, liberty, or property âis not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of lawâ (quoting Doe by Nelson v. Milwaukee Cty., 903 F.2d 499, 502 (7th Cir. 1990))); Cty. of Dallas v. Wiland, 216 S.W.3d 344, 356 (Tex. 2007) (noting that intent of procedural due-process rules is not to protect from deprivation of constitutional rights but the mistaken or unjustified deprivation of those rights). The parties do not dispute that at least the minimum procedure set forth in Section 166.046 was followed.[42] But the fact that a state procedure was followedâ-even under a constitutional statuteâ-does not preclude Section 1983 liability if the plaintiff was not afforded sufficient notice and a meaningful opportunity to be heard in accordance with the Fourteenth Amendment. See, e.g., Doyle v. Schultz, 97 F. Supp. 2d 763, 768â69 (W.D. La. 2000); State, Cty. of Bexar v. Southoaks Dev. Co., 920 S.W.2d 330, 336 (Tex. App.â-San Antonio 1995, writ denied) (op. on rehâg). Because CCMC largely followed the Section 166.046 procedure, we analyze the process T.L. and Mother received in terms of that procedure. Section 166.046 was expressly designed to bypass the courts in these specific types of disputes. See OâCallaghan, supra, at 537, 540â41 (noting that doctor âinstrumental in draftingâ the TADA described Section 166.046 as an âextrajudicial due process mechanism relying on community standardsâ). Thus, its procedures allow court involvement in only a very narrow circumstance: when the terminally ill patient or surrogate decision maker resisting withdrawal of the life-sustaining treatment seeks a court order directing the attending physician to continue life-sustaining treatment beyond the ten-day deadline upon a finding, âby a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patientâs directive will be found if the time extension is granted.â Tex. Health & Safety Code Ann. § 166.046(g). Otherwise, before depriving any patient, including T.L., of the right to life and any parents, including Mother, of the right to make medical decisions for their children, Section 166.046 provides that the attending physician and ethics or medical committee employ the following procedures: Give the patient or patientâs surrogate decision maker a written description of the ethics or medical committee review process and the health care facilityâs policies and procedures related to the law; Give the patient or surrogate decision maker at least forty-eight hoursâ notice before the committeeâs meeting to resolve the conflict, along with (1) a statutory notice of the right to transfer, see id. § 166.052, and (2) a copy of the registry of health care facilities and referral groups ready to consider accepting a transfer or to assist in finding one; Give the patient or surrogate decision maker a copy of âthe portion of the patientâs medical record related to the treatment received by the patientâ in the facility for a limited time frame: the lesser of the preceding thirty calendar days or the amount of time the patient has been admitted to the facility; Give the patient or surrogate decision maker a copy of the patientâs âreasonably available diagnostic results and reports related to the medical record providedâ; Allow the patient or surrogate decision maker to âattendâ the ethics or medical committeeâs meeting; Make a determination that the life-sustaining treatment urged by the patient or surrogate decision maker but opposed by the physician is âmedically inappropriate,â an undefined term; Provide the patient or surrogate decision maker with a written explanation of the committeeâs decision; Allow the patient or surrogate decision maker to seek a transfer to a new facility at the patientâs cost; Reasonably assist the patient or surrogate decision maker in trying to find âa physician who is willing toâ provide the requested treatment; Provide life-sustaining treatment during the committee process and up to ten days from the time the patient or surrogate decision maker is given âboth the [committee's] written decisionâ that life-sustaining treatment is not medically appropriate and the patientâs medical record;[43] Continue to administer âpain management medication, medical procedures necessary to provide comfort, [and] any other health care provided to alleviate a patientâs painâ pending the review process, through transfer, or until death; and Continue to administer artificially administered nutrition and hydration for the same time period unless it would hasten the patientâs death or be medically ineffective in prolonging life, be medically contraindicated, result in substantial irremediable physical pain, or be contrary to the patientâs or surrogateâs clearly documented desire. Id. § 166.046.[44] Beyond the requirements of Section 166.046, CCMC gave Mother formal notice five days before the hearing and had both attempted to persuade her to voluntarily discontinue her daughterâs life-sustaining treatment and to assist her in arranging for a transfer some time before giving formal notice. But the committee chair testified that, until CCMC delivered formal notice of the hearing to Mother, no one had told her that the ethics committee would make the final decision as to whether T.L. would continue to receive life-sustaining treatment at CCMC. Mother received formal notice on a Friday that the ethics committee would meet the following Wednesday to consider her daughterâs fate. At best, Mother had two full business days and a portion of another to prepare for the meeting at which this final decision would be made. The ethics committee chair described the purpose of the ethics committeeâs involvement in the process as âexplor[ing] all opportunities to resolve disagreementsâ and facilitating communication among the parties. No one involved in the direct care of the patient is allowed to be on the ethics committee. The chair said that if Mother had brought an attorney, patient advocate, or medical expert to the meeting, the committee would have âtalked aboutâ allowing such persons to attend, but the chair also admitted that the committeeâs practice had not been to allow a medical expert to attend. When describing the committeeâs consideration of the attending physicianâs recommendation, the chair stated, âWe consider what the physicians or the care team have said and we consider what the family has said and we consider the combined wisdom of the people who have served on the committee and we use that as we have our conversation.â When asked what evidentiary standard or burden of proof the committee employed to make its decision, after stating that no written policy articulated such a standard, she testified that the committee considered âthe burdens and the benefits for [the] patients.â Describing her personal support for the decision, she stated, âI look at things that are both burdensome and beneficial to children, to patients[,] and I believe that we are burdening [T.L.] and that we are allowing her to suffer.â She characterized the ethics committeeâs approval of the attending physicianâs recommendation as a âbinding decision.â Mother has shown a probable right to relief because CCMC did not provide T.L. and Mother sufficient procedural due process T.L. and Mother did not receive reasonable notice or a meaningful opportunity to be heard âAn elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.â Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950); In re E.R., 385 S.W.3d 552, 558 (Tex. 2012) (âWe measure the constitutionality of notice using Mullaneâs analytic framework, rather than Mathews v. Eldridgeâs balancing test.â). Notice must reasonably convey the nature, manner, and timing of the action to be taken or the decision to be made, and it must afford a reasonable time for those interested to make their appearance with due regard to âthe practicalities and peculiaritiesâ of the case. See Mullane, 339 U.S. at 314â 15, 70 S. Ct. at 657 (citing Grannis v. Ordean, 234 U.S. 385, 397, 34 S. Ct. 779, 784 (1914)). âBut when notice is a personâs due, process which is a mere gesture is not due process.â Id. More particularly, the constitutional adequacy of both notice and the opportunity to be heard depends upon the nature of the case. Id. at 313, 70 S. Ct. at 656â57; E.R., 385 S.W.3d at 559. For example, when the action or decision turns on the evaluation of evidence, reasonable notice and a meaningful opportunity to be heard require that interested parties be permitted time to obtain and present witnesses and documentary evidence in support of their interests, as well as an opportunity to cross-examine and rebut witnesses and documentary evidence adverse to their interests. See City of Arlington v. Centerfolds, Inc., 232 S.W.3d 238, 250â52 (Tex. App.â-Fort Worth 2007, pet. denied) (identifying direct and cross-examination of witnesses as critical components of procedural due process in administrative hearings). âDenial of such an opportunity affects the ability of the fact-finder to ascertain the truth of the dispute.â Id. at 251. The determination of whether the continuation of life-sustaining treatment for a patient with a terminal condition or irreversible condition is âmedically inappropriateâ is a question of âreasonable medical judgmentâ requiring a diagnosis of a terminal or irreversible condition by the attending physician, with the former including a prognosis of death within six months even with continued life-sustaining treatment and the latter a prognosis of fatality upon the discontinuation of life-sustaining treatment. See Tex. Health & Safety Code Ann. §§ 166.002(9), (13), .040(a), .046(e). In the malpractice context, the diagnosis of a terminal or irreversible condition, including a prognosis of death within a certain time frame, requires expert medical testimony. See Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 859â62 (Tex. 2009) (holding diagnosis of terminal illness and survival prognosis a matter of reasonable medical probability); Wyatt v. Longoria, 33 S.W.3d 26, 29â30 (Tex. App.âEl Paso 2000, no pet.) (reversing summary judgment in favor of gastroenterologist due to expert testimony demonstrating misdiagnosis of terminal metastatic breast cancer as cause of liver and peritoneal cancer with survival prognosis of three to six months); Fence v. Hospice in the Pines, 4 S.W.3d 476, 481â85 (Tex. App.âBeaumont 1999, pet. denied) (reversing summary judgment in favor of hospice and its medical director due to expert testimony demonstrating misdiagnosis of decedent with terminal brain cancer with a survival prognosis of six months or less). In the context of the Section 166.046 process, it follows that in order to meaningfully object to or otherwise contest an attending physicianâs refusal to continue life-sustaining treatment, a terminally ill patient must have a reasonable opportunity to obtain and present a âsecond opinionâ in the form of expert medical testimony to refute her terminal or irreversible condition diagnosis, confirm continued life-sustaining treatment as medically appropriate, or otherwise demonstrate a more optimistic survival prognosis. See Sloan v. Molandes, 32 S.W.3d 745, 747â48 (Tex. App.âBeaumont 2000, no pet.) (affirming health care liability judgment for gestational diabetes patient who obtained second opinion critical of her prescribed steroid treatment, leading to her seek emergency treatment for acute necrotizing pancreatitis); Columbia Rio Grande Regâl Healthcare, L.P. v. Hawley, 188 S.W.3d 838, 868 (Tex. App.âCorpus ChristiâEdinburg 2006) (Castillo, J., dissenting) (observing that patient learned of intestinal cancer diagnosis from earlier hospitalization only when she sought a second opinion), revâd on other grounds, 284 S.W.3d at 865â66. Here, Mother had a mere two business days and a portion of another day to prepare for a meeting at which a âbinding decisionâ would be made.[45] Moreover, a meaningful opportunity to be heard contemplates actual patient participation in the committee review process.[46] No greater ethical issue exists for a terminally ill patient than the question of whether to continue life-sustaining treatment. But Section 166.046 makes no provision whatsoever for how the committee will review or otherwise consider the attending physicianâs decision, other than to employ the term âethics or medical committee,â which âmeans a committee established under Sections 161.031â161.033âł of the Health & Safety Code. Tex. Health & Safety Code Ann. §§ 166.002(6), .046(a)â(b), (e). How, then, is a patient or patient representative such as Motherâ-on a few daysâ noticeâ-able to prepare for advocating her position in opposition to the physician, other than being able to merely state her opinion, such as Mother was able to do here?[47] Mother and her parents were excused from the meeting before the committee began its deliberations on whether they agreed with the doctorâs opinion or Motherâs. Health and Safety Code Section 161.032(b)(1) provides that the proceedings of an ethics or medical committee âmay be held in a closed meeting following the procedures prescribed by Subchapter E, Chapter 551âł of the Texas Government Code, better known as the Texas Open Meetings Act (TOMA). Id. § 161.032(b)(1); Suarez v. Silvas, No. 04-19-00836-CV, 2020 WL 2543311, at *7 (Tex. App.âSan Antonio May 20, 2020, no pet. h.). Subchapter E of the TOMA permits a closed meeting only if (1) a quorum of the committee âfirst convenes in an open meeting for which notice has been given as provided by [the TOMA] and during which the presiding officer publicly . . . announces that a closed meeting will be heldâ; (2) the committee keeps either âa certified agenda or . . . a recording of the proceedings of [the] closed meeting, except for a private consultation [with legal counsel] permitted under [the TOMA]â; and (3) the committee reconvenes in an open meeting to take a âfinal action, decision, or voteâ on the matter deliberated in the closed meeting. Tex. Govât Code Ann. §§ 551.101â.103. Unless a district court renders a final judgment concluding that the committee conducted the closed meeting in violation of the TOMA, neither the certified agenda nor a recording of the closed meeting is subject to public disclosure. Id. § 551.104; see In re Smith Cty., 521 S.W.3d 447, 453â54 (Tex. App.âTyler 2017, orig. proceeding) (discussing statutory restrictions on public disclosure of closed meeting recordings). Here, although the ethics committeeâs secretary took notes of the meeting, the chair testified that she had not seen or reviewed those notes. In Goldberg v. Kelly, the United States Supreme Court held that a state that terminates public assistance payments to a particular recipient without affording him the opportunity for an evidentiary hearing before termination denies him procedural due process and thereby deprives him âof the very means by which to live.â 397 U.S. 254, 264â71, 90 S. Ct. 1011, 1018â22 (1970). In so holding, the Court held that when considering the stateâs potential deprivation of existential necessitiesâ-such as food, clothing, housing, and medical careâ-the recipientâs participation in the evidentiary hearing must include (1) âan effective opportunity to defend by confronting [and cross- examining] any adverse witnesses and by presenting his own arguments and evidence orallyâ; (2) the right to counsel, though not to the appointment of counsel; (3) the right to an impartial decision maker; and (4) a statement of the decision and the evidence upon which the decision maker relied. See id. As long as the decision was subject to full administrative and judicial review, the Supreme Court observed that the evidentiary hearing could remain informal and need not take the form of a judicial or quasi-judicial trial; nor did due process require âa particular order of proof or mode of offering evidence.â See id. at 266â69, 90 S. Ct. at 1020â21; see also Univ. of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 932â33 (Tex. 1995) (holding that absence of a record of the ex parte proceedings, subject to administrative or judicial review, contributed to conclusion that ex parte proceedings violated due process). Because the discontinuation of life-sustaining treatment may deprive an unwilling terminally ill patient of the very means by which to live, Goldberg suggests that, at a minimum, the patient or her surrogate decision maker be afforded the opportunity to participate in the committee review process by evidentiary hearing, either individually or through counsel, with the right to present documentary evidence and expert medical testimony to contest the attending physicianâs decision and to confront and cross- examine any witnesses presented in favor of the decision, including the attending physician. Compare Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 588, 590â91 (Tex. 1996) (interpreting the word âparticipateâ as employed in the predecessor to Texas Rule of Appellate Procedure 30 providing for restricted appeals to mean active involvement in the hearing of evidence leading to rendition of a final and appealable judgment, either in person or through counsel, including the examination of witnesses, presentation of evidence, and argument of the issues before the trier of fact), with Kirby v. State, No. 12-01-00081-CR, 2002 WL 1163795, at *2 (Tex. App.âTyler May 31, 2002, pet. refâd) (not designated for publication) (âThe word âattendâ means âto be present at.ââ (quoting The American Heritage College Dictionary 88 (3d ed. 2000))). In the absence of such an evidentiary hearing, the âreasonable medical judgmentâ contemplated by the statute could well rest on nothing more than the physicianâs ipse dixit opinion leaving the reviewing committee without probative evidence that the continuation of life-sustaining treatment is medically inappropriate. See Windrum v. Kareh, 581 S.W.3d 761, 769 (Tex. 2019) (citing law denying ipse dixit medical testimony probative value). Concerning the right to counsel, in particular, the United States Supreme Court held after Goldberg that, even in cases involving the permanent termination of parental rights, procedural due process does not always require the appointment of counsel for indigent parties in evidentiary hearings, but in so holding the Court nevertheless warned of the importance of legal counsel for parents lacking education or sophistication when the decision to be made requires consideration of expert medical testimony: [T]he ultimate issues with which a termination hearing deals are not always simple, however commonplace they may be. Expert medical and psychiatric testimony, which few parents are equipped to understand and fewer still to confute, is sometimes presented. The parents are likely to be people with little education, who have had uncommon difficulty in dealing with life, and who are, at the hearing, thrust into a distressing and disorienting situation. That these factors may combine to overwhelm an uncounseled parent is evident from the findings some courts have made. Lassiter v. Depât of Soc. Servs. of Durham Cty., N.C., 452 U.S. 18, 30, 101 S. Ct. 2153, 2161 (1981). Although some terminally ill patients in this situation may be just as likely to be uneducated and unsophisticated, many more are likely to be medically and emotionally vulnerable, and no less likely to be overwhelmed and in need of legal counsel to present their defense.[48] Motherâs lack of a meaningful opportunity to participate in the committee meeting resulting in a binding decision to discontinue T.L.âs life-sustaining treatment thoroughly frustrates the purpose of both the notice and the committee review process. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84â86, 108 S. Ct. 896, 899 (1988); Pope, supra, at 140â42, 146â47; OâCallaghan, supra, at 596â97. Finally, by way of comparison, consider the procedural-due-process protections afforded the subjects of two analogous situations: the involuntary termination of parental rights and the proceedings of a medical peer review committee. As to the former, if Motherâs refusal to consent to the discontinuation of her daughterâs life- sustaining treatment met the statutory definition of medical neglect, the Texas Family Code itself would mandate compliance with the detailed procedural framework applicable when a parentâs rights to a child are at risk of being terminated as a result of state action. See generally Tex. Fam. Code Ann. chs. 101â10, 161, 262â63; In re Gordon, No. 03-14-00072-CV, 2014 WL 1279740, at *2 (Tex. App.â-Austin Mar. 28, 2014, orig. proceeding) (mem. op.) (âThe family code sets out very specific procedures and time lines to which parties to a termination suit must adhere.â). Whether those procedures provide sufficient due process in a particular proceeding is fact specific and determined by âconsidering any relevant precedents and then . . . assessing the several interests that are at stake.â See In re B.L.D., 113 S.W.3d 340, 352, 354 (Tex. 2003) (quoting Lassiter, 452 U.S. at 25, 101 S. Ct. at 2158, and recognizing that Lassiter due-process analysis is fact specific); In re K.L., 91 S.W.3d 1, 6 (Tex. App.â-Fort Worth 2002, no pet.) (concluding that once the state has granted a procedural right in the Family Code, that right must be administered consistently with the Fourteenth Amendmentâs Due Process Clause). Included in the constitutional and statutory procedural safeguards are the statutory right to counsel for an indigent parent and the right to effective assistance from that counsel, Tex. Fam. Code Ann. §§ 107.013, 262.201(c)â(e); In re M.S., 115 S.W.3d 534, 544 (Tex. 2003); K.L., 91 S.W.3d at 5â6 & n.16, the right to actual notice of permanency hearings and trial, In re K.M.L., 443 S.W.3d 101, 119â20 (Tex. 2014), the right to nonsubstituted service when the parentâs identity is known and the state did not make a sufficiently diligent inquiry, E.R., 385 S.W.3d at 565â66, and the right to a meaningful appeal when appeal is permitted, In re B.G., 317 S.W.3d 250, 253â58 (Tex. 2010); In re J.O.A., 283 S.W.3d 336, 342â43, 347 (Tex. 2009); M.S., 115 S.W.3d at 547â48. And implicit in the right to counsel contemplated by Lassiter is the right to present evidence through the direct examination and cross-examination of witnesses: If, as our adversary system presupposes, accurate and just results are most likely to be obtained through the equal contest of opposed interests, the Stateâs interest in the childâs welfare may perhaps best be served by a hearing in which both the parent and the State acting for the child are represented by counsel, without whom the contest of interests may become unwholesomely unequal. 452 U.S. at 28, 101 S. Ct. at 2160. For the exact same refusal of consent, the Family Code would afford Mother more due-process protection had CCMC simply reported her for medical neglect. See Tex. Fam. Code Ann. § 261.101(b) (imposing a duty upon doctors and nurses to report suspected abuse or neglect of a child within forty-eight hours of first suspicion). Considering the second comparison, a physician against whom a âprofessional review actionâ is proposed by a medical peer review committee is entitled under federal and state law to the following due process: a notice giving reasons for the proposed action and no less than thirty days to request a hearing before the action can be taken; if the physician requests a hearing, no less than thirty daysâ notice before that hearing, and a list of the witnesses expected to âtestifyâ at the hearing on the committeeâs behalf; a mutually-acceptable arbitrator, or a hearing officer or panel of persons appointed by the health care provider who do not directly compete economically with the physician, as the decision maker; the right to be represented by an attorney of the physicianâs choice; the right to a record of the proceedings; the right to call witnesses and cross-examine witnesses; the right to present relevant evidence; and the right to submit a written statement. See Health Care Quality Improvement Act of 1986, 42 U.S.C.A. § 11112(a)â(b) (hereinafter HCQIA); see also id. § 11111 (granting immunity from damages for medical peer review conducted in compliance with federal requirements); Tex. Occ. Code Ann. §§ 160.001, .010 (incorporating HCQIA medical peer review due-process protections and immunity and creating additional civil immunity); see also Huntsville Memâl Hosp. v. Ernst, 763 S.W.2d 856, 859 (Tex. App.âHouston [14th Dist.] 1988, orig. proceeding) (holding physician subject to private medical peer review is âentitled to know who will participate as decision makers on behalf of the hospital at both the hearing and appellate stages, what witnesses will appear, and what documents will be offered into evidenceâ). In other words, if the exact same treatment decision urged by the attending physician were made the basis of a professional review action by CCMC, the Occupations Code would afford him every one of the due-process protections guaranteed by HCQIA. See Ching v. Methodist Childrenâs Hosp., 134 S.W.3d 235, 240â43 (Tex. App.âAmarillo 2003, pet. denied) (affirming summary judgment on pediatric cardiothoracic surgeonâs common law and statutory due-process claims due to his failure to rebut presumption of reviewing committeeâs compliance with HCQIA); Maewal v. Adventist Health Sys./Sunbelt, Inc., 868 S.W.2d 886, 891â94 (Tex. App.âFort Worth 1993, writ denied) (affirming summary judgment on surgeonâs contract and tort claims due to his failure to rebut presumption of reviewing committeeâs compliance with HCQIA). By comparison, Section 166.046 provides an unwilling terminally ill patient with only the right to attend the meeting, which presents a viable denial-of-due-process claim. See In re A.M.B., 640 N.W.2d 262, 268â69, 298â99, 311 (Mich. Ct. App. 2001) (determining that parents of child in state custody were denied procedural due process when, without adequate notice of and no opportunity to participate in hearing, court ordered their child to be taken off life support). 2. Mother has shown a probable right to relief because Section 166.046 fails to articulate any objective evidentiary standard or burden of proof for the committee review process and eschews completely the statutory and constitutional âbest interestsâ standard for terminally ill children Finally, the âmedically inappropriateâ standard employed by Section 166.046(e) to authorize the unilateral withdrawal of life-sustaining treatment from an unwilling terminally ill patient, even when informed by reasonable medical judgment, fails to articulate an objective standard by which to decide that the patientâs natural death is either her chosen or best treatment option. When addressing this decision in mentally competent adult patients, the courts generally hold that the subjective decision of the patient to refuse life-sustaining treatment overrides any interest the state may have in her continued life, as long as her objective medical and emotional circumstances demonstrate that the decision is an informed and rational one. See Cruzan, 497 U.S. at 270, 110 S. Ct. at 2847 (acknowledging right to refuse treatment as âlogical corollaryâ of doctrine of informed consent); cf. Miller, 118 S.W.3d at 766 (same for parents of minor patients). When the patient is mentally incompetent, the courts generally hold that the evidence must objectively demonstrate that the patientâ-if she were capable of articulating her subjective informed decisionâ-would choose to refuse life-sustaining treatment, thereby permitting a designated representative to exercise âsubstituted judgmentâ to so refuse. See Cruzan, 497 U.S. at 270â78, 110 S. Ct. at 2847â51 (discussing âsubstituted judgmentâ and âbest interestâ standards). And when the patient is a terminally ill child legally incompetent to make a subjective decision to refuse treatment on her own and legally deprived of parents to make the decision for her, the courts uniformly hold that the evidence must objectively demonstrate that the withdrawal of life-sustaining treatment is in the âbest interestsâ of the child. See, e.g., In re Christopher I., 131 Cal. Rptr. 2d 122, 133 (Cal. Ct. App. 2003); In re Truselo, 846 A.2d 256, 269â70 (Del. Fam. Ct. 2000); In re K.I., 735 A.2d 448, 455â56 (D.C. 1999); Baby F. v. Okla. Cty. Dist. Ct., 348 P.3d 1080, 1086â88 (Okla. 2015). While reasonable medical judgment may inform the decision, the deciding factor is ultimately the individual liberty interest of the patient in deciding that a natural death is the best treatment option. By limiting the evidentiary standard for the committeeâs decision solely to an ad hoc determination of whether the continuation of life-sustaining treatment is âmedically inappropriate,â Section 166.046(e) excludes from the committee review process any consideration of the subjective interests of the patient or, when dealing with a terminally ill child whose parentâs rights have not been temporarily or permanently terminated, that parentâs determination of what medical treatment is in the childâs best interestsâ-both of which are procedural-due-process prerequisites. As the United States Supreme Court observed in Cruzan, âThe choice between life and death is a deeply personal decision of obvious and overwhelming finality.â 497 U.S. at 281, 110 S. Ct. at 2852. To effectuate this deeply personal decision, the Legislature enacted first the NDA and then the TADA, with the primary focus of both being to create a lawful means or process by which a terminally ill individual could voluntarily refuse life-sustaining treatment and thereby facilitate that personâs natural death. In this context, reasonable medical judgment clearly informs the volitional decision of the patient, and the processes created by both the NDA and TADA guard against medical coercion in any form, altruistic or otherwise. When, however, the TADA extended the process to permit involuntary withdrawal of life-sustaining treatment without the consent of either the patient or her designated representative, the âmedically inappropriateâ standard left complete discretion to the reasonable medical judgment of the attending physician with the only check on less-than-altruistic medical coercion coming in the form of the committee review process. Suddenly, a deeply personal decision of overwhelming finality was no longer a deeply personal decision. In fact, Section 166.046 purposefully excludes any consideration of the patientâs personal decision. How then to decide that natural death is the preferred treatment decision? On two separate occasions, the Supreme Court of Texas has recognized the impossibility of fashioning an objective evidentiary standard for Texas courts to calculate the subjective relative benefits of living an impaired life versus having no life at all. In Nelson, the Supreme Court of Texas refused to recognize a wrongful life cause of action due to the impossibility of that calculation when, but for the medical negligence of the defendant physician, the minor patient would never have been born. 678 S.W.2d at 925. Similarly, in Miller, the court refused to recognize a duty to withhold life-sustaining treatment from a newborn infant, as urged by the parents, when the calculation could not even be attempted without first evaluating the childâs postnatal medical condition. 118 S.W.3d at 768 (citing Nelson). Significantly, while reasonable medical judgment clearly informed both decisions, the court implicitly held that reasonable medical judgment alone could not complete the relative-benefits calculation to the exclusion of the individual interests of the children and their parents. Indeed, neither decision contemplated granting private medical practitioners the unilateral authority to decide for both infant and parents whether the infant was to live or die. Even CAPTA, the applicability of which Miller considered and Section 166.010 contemplates, places the sole authority for deciding to withhold life-sustaining treatment in the hands of either a disabled infantâs parents or the state, informed by the reasonable medical judgment of the attending physician. 42 U.S.C.A. § 5106g(5) (contemplating parental consent to withholding life-sustaining treatment when neither ameliorative nor curative of disabled infantâs terminal condition). Here, the individual wishes of the patient, expressed either personally or through a designated representative, never become part of the calculation because Section 166.046(e) authorizes the discontinuation of life-sustaining treatment solely upon the ipse dixit opinion of the attending physician. Stated differently, the statutorily-mandated committee review process decides whether a natural death is the best treatment option for the patient without reference to the opinion of either the unwilling patient or her unwilling designated representative. And without any requirement holding the attending physician to an objective evidentiary standard that includes consideration of the patientâs wishes, there is no evidentiary âdisputeâ to be settled at the meeting. OâCallaghan, supra, at 596â97. Or as the doctor âinstrumental in draftingâ the TADA has described, the committeeâs decision is based solely on âcommunity standardsâ of what is medically appropriate for patients, including minor children, despite their assertions of important life and liberty interests to the contrary. See id. at 537, 540â41. That is the description of an ad hoc, not an objective, standard that can change depending on what particular ethics or medical committee conducts the review. See id. at 590 (âIn the absence of a standard it is impossible to conclude that any decision to deny [life-sustaining treatment] is âerroneous.ââ). That appears to be exactly what happened here: the attending physician expressed his medical opinion that continuation of life-sustaining treatment for T.L. was medically inappropriate; Mother and her parents expressed their opinions that they wanted the treatment to be continued until T.L. could come home; and the committee, in the words of its chair, decided that in its opinion the treatment was more of a burden than a benefit to T.L. Critically, as noted above, medical decisions involving minor patients whose parents cannot legally make those decisions for them require a judicial, rather than a parental, determination of their best interests. And those courts from other jurisdictions that have considered how to confirm that the withdrawal of life-sustaining treatment is in the best interest of a terminally ill child do so by applying objective evidentiary standards and a heightened clear-and-convincing burden of proof. See Baby F., 348 P.3d at 1088â89; see also Christopher I., 131 Cal. Rptr. 2d at 128, 133â35 (mandating determination of decision to withdraw life-sustaining treatment according to best- interest standard proven by clear and convincing evidence and adopting twelve factorsâsome of which give voice to family membersâ and childâs preferences, if ascertainment is possibleâ-in determining whether continued treatment was in best interest of ventilator-dependent infant in persistent vegetative state); Hunt v. Div. of Family Servs., 146 A.3d 1051, 1064â65 (Del. 2015) (holding same and adopting nonexclusive list of factors for mentally incompetent adult patient set forth in In re Guardianship of Grant, 747 P.2d 445, 457 (Wash. 1987), to be employed in making the decision);[49] Truselo, 846 A.2d at 272 (adopting Grant factors); K.I., 735 A.2d at 455â56 (affirming best-interests finding by clear and convincing evidence in favor of withdrawing life-sustaining treatment from comatose infant). In the analogous situation of involuntarily terminating parental rights for medical neglect, a district court must determine that such termination is in the best interest of the child by clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001(b)(2); see also In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012). The Family Code defines clear and convincing evidence as âthe measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.â E.N.C., 384 S.W.3d at 802 (quoting Tex. Family Code Ann. § 101.007). And this heightened standard of review is mandated not only by the Family Code but also by the Due Process Clause. Id. (citing Santosky, 455 U.S. at 753â54, 102 S. Ct. at 1394â95). While it is true that Section 166.046 gives a health care provider the power to overcome only one parental rightâ-the right to make medical decisions on behalf of a childâ-in this limited circumstance, the effect of the removal of a childâs life-sustaining treatment on a parentâs liberty interest is the same and therefore just as grave. Thus, by allowing an attending physician and ethics or medical committee to make a decision of this consequence on less than a clear-and-convincing-evidence standardâ-indeed, on no more than the ipse dixit opinion of the attending physicianâ-the committee review process gives parents who are facing a physicianâs and committeeâs decision to withdraw life-sustaining treatment from their child less due-process protection than parents from whom the state seeks the same result by terminating their parental rights. See Baby F., 348 P.3d at 1088 n.4 (âSince a childâs death after the issuance of a DNR order would function in a very real sense as a severance of the parental bond, it would be absurd not to apply the clear and convincing evidence standard to the determination from the viewpoint of the parentâs rights, let alone those of the minor child.â). Mother has pleaded a cause of action with a probable right of relief Based on the foregoing, Mother has pleaded a probable right to relief that under the flexible standard of Mathews v. Eldridge, the committee review process established by Section 166.046 and provided to T.L. and Mother did not provide sufficient procedural due process. First, the private interests that Mother has identified as being affected are of the highest concern and jealously protected under the law: the rights to life and medical autonomy of a terminally ill patient and, when the patient is a minor, the right of her parent to make that medical decision for her. Second, she has shown that the risk of erroneous deprivation of these fundamental life-and-liberty interests under the procedures employed is substantial because she had no opportunity to meaningfully contest the attending physicianâs decision.[50] Third, and finally, to the extent the stateâs interests include the fiscal and administrative burdens that such additional procedural requirements would entail, Mother has shown that it is at least arguable that those interests are substantially mitigated by the fact that the stateâs interests also extend to affirmatively protecting terminally ill patients, including minors, from the unlawful deprivation of their lives and that the fiscal and administrative burdens that additional procedural requirements would entail are not significant in comparison to the private interests at stake. See M.S., 115 S.W.3d at 548 (discounting the stateâs interests in economy and efficiency in comparison to the rights of parents to maintain their relationships to their children). This is not to say that the interests urged by CCMC are unimportant,[51] but in determining the propriety of a temporary injunction, we are not concerned with whether CCMCâs asserted interest would ultimately prevail. See, e.g., Martinez v. Mangrum, No. 02-13-00126-CV, 2014 WL 1389566, at *4 (Tex. App.â-Fort Worth Apr. 10, 2014, no pet.) (mem. op.). We therefore conclude that Mother has shown a probable right to relief on her claim that she was denied meaningful notice and an opportunity to heard.[52] See Mathews, 424 U.S. at 335, 96 S. Ct. at 903; Mosley v. Tex. Health & Human Servs. Commân, 593 S.W.3d 250, 265 (Tex. 2019); Univ. Interscholastic League v. Hatten, No. 03-03-00691-CV, 2004 WL 792328, at *3 (Tex. App.â-Austin Apr. 15, 2004, no pet.) (mem. op.). Mother is entitled to temporary injunctive relief pending trial on the merits Mother has pleaded a valid Section 1983 claim and has shown a probable right to relief. If CCMC were allowed to withdraw life-sustaining treatment from T.L. before a trial on the merits can be had, Mother and T.L. will suffer permanent, irreparable damage. See Cruzan, 497 U.S. at 283, 110 S. Ct. at 2854 (âAn erroneous decision not to terminate results in a maintenance of the status quo . . . . However, an erroneous decision to withdraw [life-sustaining] treatment is not susceptible of correction.â). Thus, we conclude that the trial court abused its discretion by denying Motherâs request for a temporary injunction. Conclusion â[T]he decision to withdraw life-sustaining medical care from a desperately ill child is one that should rarely involve the courts. . . . â[T]he decision-making process should generally occur in the clinical setting without resort to the courts, but . . . courts should be available to assist in decision making when an impasse is reached.ââ A.M.B., 640 N.W.2d at 311 (emphasis added) (quoting In re Rosebush, 491 N.W.2d 633, 637 (1992)). On these facts, Mother has presented a bona fide complaint that CCMC, in invoking and following Section 166.046â˛s committee review process, failed to provide her adequate procedural due process for the ultimate encroachment on the paramount individual interests at stake. Therefore, Mother has shown a probable right to relief on her Section 1983 claim. We reverse the trial courtâs denial of Motherâs application for a temporary injunction, and we remand this case to the trial court to render an order granting the requested temporary injunction pending a final trial on the merits consistent with this opinion. Our previously issued stay order remains in effect until the trial court renders such an order complying with this courtâs judgment or until superseded by a higher court. /s/ Wade Birdwell Wade Birdwell Justice Delivered: July 24, 2020