David Saucedo v. Texas Medical Board
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Opinion
ACCEPTED 15-25-00205-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 1/6/2026 1:34 PM No. 15-25-00205-CV CHRISTOPHER A. PRINE CLERK IN THE FIFTEENTH COURT OF APPEALS FILED IN 15th COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS _________________________________________________________________ 1/6/2026 1:34:46 PM David Saucedo, CHRISTOPHER A. PRINE Clerk Appellant, v. Texas Medical Board; Sherif Zaafran, M.D.; Stephen Brint Carlton; Sharon J. Barnes; Devinder S. Bhatia, M.D.; Michael E. Cokinos; Garry Crain; George L. Deloach, D.O.; James S. Distefano, D.O.; Kandace B. Farmer, D.O.; Mary Green, M.D.; Tomeka M. Herod; Zach Jones, M.D.; Robert D. Martinez, M.D.; Luann Morgan; Jayaram B. Naidu, M.D.; Manuel Quinones, Jr., M.D.; Luisa Del Rosal; Jason K. Tibbels, M.D.; Linda Troncoso; and David G. Vanderweide, M.D., in their Official Capacities as Members of the Texas Medical Board, Appellees.
_______________________________________________________________ On Appeal from Cause No. D-1-GN-23-0026 in the 126th Judicial District Court, Travis County, Texas, Hon. Maria Cantú Hexsel __________________________________________________________________ APPELLANT’S BRIEF __________________________________________________________________ HYDE KELLEY LLP GEORGE E. HYDE 2806 Flintrock Trace, Suite A104 Texas Bar No. 45006157 Austin, Texas 78738 ghyde@txlocalgovlaw.com Telephone: (512) 686-0700 MATTHEW L. WESTON Facsimile: (866) 929-1641 Texas Bar No. 24037698 mweston@txlocalgovlaw.com
ORAL ARGUMENT REQUESTED IDENTITIES OF PARTIES AND COUNSEL
In order that the members of this Court may determine disqualification and
recusal pursuant to the Texas Rules of Appellate Procedure, Appellant certifies that
the following is a complete list of the parties, attorneys, and other persons with a
financial interest in the outcome of this lawsuit:
Appellants: Attorneys for Appellants: David Saucedo George E. Hyde Matthew L. Weston
Hyde Kelley LLP 2806 Flintrock Trace Suite A104 Austin, Texas 78738 Telephone: (512) 686-0700 Facsimile: (866) 929-1641
Appellees: Attorneys for Appellees: Texas Medical Board Patrick Todd
Sherif Zaafran, M.D., in his official Office of the Attorney General capacity as President of the Texas of Texas Medical Board Administrative Law Division P.O. Box 12548, Capitol Station Stephen Brint Carlton, in his official Austin, Texas 78711-2548 capacity as Executive Director of the Telephone: (512) 475-4300 Texas Medical Board Facsimile: (512) 320-0167 Sharon J. Barnes, in her official capacity as a member of the Texas Medical Board
Devinder S. Bhatia, M.D., in his official capacity as a member of the Texas Medical Board
APPELLANT’S BRIEF PAGE 1 OF 43 Michael E. Cokinos, in his official capacity as a member of the Texas Medical Board
Garry Crain, in his official capacity as a member of the Texas Medical Board
George L. De Loach, D.O., in his official capacity as a member of the Texas Medical Board
James S. Distefano, D.O., in his official capacity as a member of the Texas Medical Board
Kandace B. Farmer, D.O. in her official capacity as a member of the Texas Medical Board
Mary Green, M.D., in her official capacity as a member of the Texas Medical Board
Tomeka M. Herod, in her official capacity as a member of the Texas Medical Board
Zach Jones, M.D., in his official capacity as a member of the Texas Medical Board Robert D. Martinez, M.D., in his official capacity as a member of the Texas Medical Board
LuAnn Morgan, in her official capacity as a member of the Texas Medical Board
Jayaram B. Naidu, M.D., in his official capacity as a member of the Texas Medical Board
APPELLANT’S BRIEF PAGE 2 OF 43 Manuel Quinones, Jr., M.D., in his official capacity as a member of the Texas Medical Board
Luisa del Rosal, in her official capacity as a member of the Texas Medical Board
Jason K. Tibbels, M.D., in his official capacity as a member of the Texas Medical Board
Linda Troncoso, in her official capacity as a member of the Texas Medical Board
David G. Vanderweide, M.D., in his official capacity as a member of the Texas Medical Board
APPELLANT’S BRIEF PAGE 3 OF 43 TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL .........................................................1
TABLE OF CONTENTS ...........................................................................................4
INDEX OF AUTHORITIES......................................................................................6
JURISDICTIONAL STATEMENT ..........................................................................9
ORAL ARGUMENT REQUESTED.........................................................................9
STATEMENT OF THE CASE ................................................................................10
ISSUES PRESENTED FOR REVIEW ...................................................................12
STATEMENT OF FACTS ......................................................................................13
SUMMARY OF THE ARGUMENT ......................................................................18
ARGUMENT AND AUTHORITIES ......................................................................19
I. Issue One: Saucedo Affirmatively Demonstrated the Trial Court’s
Jurisdiction to Hear his Section 2001.171 Claim ..................................19
A. Applicable Law ......................................................................................19 B. Saucedo Affirmatively Demonstrated or Raised a Fact Issues Regarding the Trial Court’s Jurisdiction over his Section 2001.171 Claim ...........20 II. Issue Two: Saucedo Affirmatively Demonstrated the Trial Court’s
Jurisdiction over his Constitutional Claims and Raised a Fact Issue
Related to these Claims ..........................................................................29
A. Saucedo Met His Pleading and Evidentiary Burden for His Constitutional Claims.............................................................................29
APPELLANT’S BRIEF PAGE 4 OF 43 III. Issue Three: Saucedo Met his Pleading and Evidentiary Burden for His
Unchallenged Ultra Vires Claim............................................................32
IV. Issue Four: Saucedo Should Have Been Granted Leave to Amend ......35
V. Issue Five: the Trail Court Abused Its Discretion by Denying Saucedo’s
Motion to Compel Jurisdictional Discovery ..........................................36
VI. The Combined Errors Were Harmful and Require Reversal and Remand
................................................................................................................39
PRAYER ..................................................................................................................39
COMPLIANCE CERTIFICATE .............................................................................41
CERTIFICATE OF SERVICE ................................................................................41
APPENDIX...............................................................................................................42
APPELLANT’S BRIEF PAGE 5 OF 43 INDEX OF AUTHORITIES
Page(s)
Cases
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) ..................................................................................36 CenterPoint Energy Entex v. R.R. Comm'n of Tex., 213 S.W.3d 364 (Tex.
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ACCEPTED 15-25-00205-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 1/6/2026 1:34 PM No. 15-25-00205-CV CHRISTOPHER A. PRINE CLERK IN THE FIFTEENTH COURT OF APPEALS FILED IN 15th COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS _________________________________________________________________ 1/6/2026 1:34:46 PM David Saucedo, CHRISTOPHER A. PRINE Clerk Appellant, v. Texas Medical Board; Sherif Zaafran, M.D.; Stephen Brint Carlton; Sharon J. Barnes; Devinder S. Bhatia, M.D.; Michael E. Cokinos; Garry Crain; George L. Deloach, D.O.; James S. Distefano, D.O.; Kandace B. Farmer, D.O.; Mary Green, M.D.; Tomeka M. Herod; Zach Jones, M.D.; Robert D. Martinez, M.D.; Luann Morgan; Jayaram B. Naidu, M.D.; Manuel Quinones, Jr., M.D.; Luisa Del Rosal; Jason K. Tibbels, M.D.; Linda Troncoso; and David G. Vanderweide, M.D., in their Official Capacities as Members of the Texas Medical Board, Appellees.
_______________________________________________________________ On Appeal from Cause No. D-1-GN-23-0026 in the 126th Judicial District Court, Travis County, Texas, Hon. Maria Cantú Hexsel __________________________________________________________________ APPELLANT’S BRIEF __________________________________________________________________ HYDE KELLEY LLP GEORGE E. HYDE 2806 Flintrock Trace, Suite A104 Texas Bar No. 45006157 Austin, Texas 78738 ghyde@txlocalgovlaw.com Telephone: (512) 686-0700 MATTHEW L. WESTON Facsimile: (866) 929-1641 Texas Bar No. 24037698 mweston@txlocalgovlaw.com
ORAL ARGUMENT REQUESTED IDENTITIES OF PARTIES AND COUNSEL
In order that the members of this Court may determine disqualification and
recusal pursuant to the Texas Rules of Appellate Procedure, Appellant certifies that
the following is a complete list of the parties, attorneys, and other persons with a
financial interest in the outcome of this lawsuit:
Appellants: Attorneys for Appellants: David Saucedo George E. Hyde Matthew L. Weston
Hyde Kelley LLP 2806 Flintrock Trace Suite A104 Austin, Texas 78738 Telephone: (512) 686-0700 Facsimile: (866) 929-1641
Appellees: Attorneys for Appellees: Texas Medical Board Patrick Todd
Sherif Zaafran, M.D., in his official Office of the Attorney General capacity as President of the Texas of Texas Medical Board Administrative Law Division P.O. Box 12548, Capitol Station Stephen Brint Carlton, in his official Austin, Texas 78711-2548 capacity as Executive Director of the Telephone: (512) 475-4300 Texas Medical Board Facsimile: (512) 320-0167 Sharon J. Barnes, in her official capacity as a member of the Texas Medical Board
Devinder S. Bhatia, M.D., in his official capacity as a member of the Texas Medical Board
APPELLANT’S BRIEF PAGE 1 OF 43 Michael E. Cokinos, in his official capacity as a member of the Texas Medical Board
Garry Crain, in his official capacity as a member of the Texas Medical Board
George L. De Loach, D.O., in his official capacity as a member of the Texas Medical Board
James S. Distefano, D.O., in his official capacity as a member of the Texas Medical Board
Kandace B. Farmer, D.O. in her official capacity as a member of the Texas Medical Board
Mary Green, M.D., in her official capacity as a member of the Texas Medical Board
Tomeka M. Herod, in her official capacity as a member of the Texas Medical Board
Zach Jones, M.D., in his official capacity as a member of the Texas Medical Board Robert D. Martinez, M.D., in his official capacity as a member of the Texas Medical Board
LuAnn Morgan, in her official capacity as a member of the Texas Medical Board
Jayaram B. Naidu, M.D., in his official capacity as a member of the Texas Medical Board
APPELLANT’S BRIEF PAGE 2 OF 43 Manuel Quinones, Jr., M.D., in his official capacity as a member of the Texas Medical Board
Luisa del Rosal, in her official capacity as a member of the Texas Medical Board
Jason K. Tibbels, M.D., in his official capacity as a member of the Texas Medical Board
Linda Troncoso, in her official capacity as a member of the Texas Medical Board
David G. Vanderweide, M.D., in his official capacity as a member of the Texas Medical Board
APPELLANT’S BRIEF PAGE 3 OF 43 TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL .........................................................1
TABLE OF CONTENTS ...........................................................................................4
INDEX OF AUTHORITIES......................................................................................6
JURISDICTIONAL STATEMENT ..........................................................................9
ORAL ARGUMENT REQUESTED.........................................................................9
STATEMENT OF THE CASE ................................................................................10
ISSUES PRESENTED FOR REVIEW ...................................................................12
STATEMENT OF FACTS ......................................................................................13
SUMMARY OF THE ARGUMENT ......................................................................18
ARGUMENT AND AUTHORITIES ......................................................................19
I. Issue One: Saucedo Affirmatively Demonstrated the Trial Court’s
Jurisdiction to Hear his Section 2001.171 Claim ..................................19
A. Applicable Law ......................................................................................19 B. Saucedo Affirmatively Demonstrated or Raised a Fact Issues Regarding the Trial Court’s Jurisdiction over his Section 2001.171 Claim ...........20 II. Issue Two: Saucedo Affirmatively Demonstrated the Trial Court’s
Jurisdiction over his Constitutional Claims and Raised a Fact Issue
Related to these Claims ..........................................................................29
A. Saucedo Met His Pleading and Evidentiary Burden for His Constitutional Claims.............................................................................29
APPELLANT’S BRIEF PAGE 4 OF 43 III. Issue Three: Saucedo Met his Pleading and Evidentiary Burden for His
Unchallenged Ultra Vires Claim............................................................32
IV. Issue Four: Saucedo Should Have Been Granted Leave to Amend ......35
V. Issue Five: the Trail Court Abused Its Discretion by Denying Saucedo’s
Motion to Compel Jurisdictional Discovery ..........................................36
VI. The Combined Errors Were Harmful and Require Reversal and Remand
................................................................................................................39
PRAYER ..................................................................................................................39
COMPLIANCE CERTIFICATE .............................................................................41
CERTIFICATE OF SERVICE ................................................................................41
APPENDIX...............................................................................................................42
APPELLANT’S BRIEF PAGE 5 OF 43 INDEX OF AUTHORITIES
Page(s)
Cases
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) ..................................................................................36 CenterPoint Energy Entex v. R.R. Comm'n of Tex., 213 S.W.3d 364 (Tex. App.—Austin 2006, no pet.) ...........................................24 City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex. 1995)......................................................................... 29, 31 City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997) ...................................31 City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)......................................................................... 33, 38 Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468 (Tex. 2012)................................................................................36 Heckman v. Williamson Cnty., 369 S.W.3d 137 (Tex. 2012)................................................................................19 In re Christianson Air Conditioning & Plumbing, LLC, 639 S.W.3d 671 (Tex. 2022)................................................................................39 Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629 (Tex. 2012)................................................................................39 Mitchell Cnty. v. City Nat. Bank, 91 Tex. 361, 43 S.W. 880 (1898) .........................................................................31 Phillips v. McNeill, 635 S.W.3d 620 (Tex. 2021)................................................................................33 St. Agnes Academy v. Texas Alcoholic Beverage Commission, 391 S.W.3d 277 (Tex. App.—Austin 2012, no pet.) .............................. 26, 27, 28 State v. Loe, 692 S.W.3d 215 (Tex. 2024)................................................................................31 Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)........................................................................ passim Tex. Dep't of Protective & Regulatory Services v. Mega Child Care, Inc., 145 S.W.3d 170 (Tex. 2004)................................................................... 20, 25, 26 Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002) ..................................................................................19 Town of Shady Shores v. Swanson, 590 S.W.3d 544 (Tex. 2019)................................................................................20
APPELLANT’S BRIEF PAGE 6 OF 43 Trump v. Anderson, 601 U.S. 100, 144 S. Ct. 662, 218 L. Ed. 2d 1 (2024) .........................................31 Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926 (Tex. 1995)................................................................................38
Statutes Article 1, Section 19 of the Texas Constitution ................................................ 29, 30 Article 1, Section 27 of the Texas Constitution .......................................................30 Tex. Alco. Bev. Code § 11.67(a) .............................................................................27 Tex. Const. art. I, § 29..............................................................................................31 Tex. Gov. Code § 22.220(d) ......................................................................................9 Tex. Gov’t Code § 2001.003(1) ...............................................................................25 Tex. Gov't Code § 2001.003(5) ...............................................................................21 Tex. Gov't Code § 2007.071 ............................................................................ passim Tex. Gov’t Code § 2001.175(b) ...............................................................................37 Tex. Occ. Code § 154.053(a) ...................................................................................33 Tex. Occ. Code § 154.056 (a)(2), (4).......................................................................33 Tex. Occ. Code § 154.056(a)(2) ..............................................................................34 Tex. Occ. Code § 154.058(b) ...................................................................................34 Tex. Occ. Code § 164.001 .......................................................................................28 Tex. Occ. Code § 164.002 .......................................................................................28 Tex. Occ. Code § 164.0025 .....................................................................................28 Tex. Occ. Code § 164.003 .......................................................................................26 Tex. Occ. Code § 164.0035 .....................................................................................28 Tex. Occ. Code § 164.005 ................................................................................ 27, 28 Tex. Occ. Code § 164.009 .......................................................................... 25, 26, 28 U.S. Const. amend. XIV, § 1 ...................................................................................30 Vernon's Ann.Civ.St. art. 4495b, § 4.09 (1984) .....................................................26 Rules
Tex. R. App. P. 9.4(i)(3) ..........................................................................................41 Tex. R. App. P. 38.1(e), 39.1(d) ..........................................................................9, 11 Tex. R. App. P. 39.1(b) ..............................................................................................9 Tex. R. App. P. 39.1(c) ..............................................................................................9
Regulations 22 Tex. Admin. Code § 178.5 ..................................................................................21 22 Tex. Admin. Code § 178.7 ..................................................................................22
APPELLANT’S BRIEF PAGE 7 OF 43 22 Tex. Admin. Code § 178.8 ........................................................................... 22, 23
Other Authorities 50 TexReg 369 .........................................................................................................21 S.B. 1062 ..................................................................................................................26
Record References
CR _______________ Clerk’s Record [Page Number]
Supp. CR __________ Supplemental Clerk’s Record [Page Number]
APPELLANT’S BRIEF PAGE 8 OF 43 JURISDICTIONAL STATEMENT
The trial court granted the Texas Medical Board’s (“TMB”) Plea to the
Jurisdiction (“Plea”) and denied David Saucedo’s (“Saucedo”) Motion for
Reconsideration on October 20, 2025.1 Saucedo timely filed his Notice of Appeal
on November 10, 2025. 2 Additionally, this Court has exclusive intermediate
appellate jurisdiction because it is a civil appeal brought against an agency of the
executive branch of state government and against an officer or employee of a state
board arising out of the officer or employee’s official conduct.3
ORAL ARGUMENT REQUESTED
The Court should grant oral argument for the following reasons:
a. The issues presented have not been authoritatively decided.4
b. Oral argument would allow the Court to better analyze the complex legal
issues presented in this appeal. 5
c. Oral argument would significantly aid the Court in deciding this case.6
1 CR 211-12. 2 CR 213-16. 3 Tex. Gov. Code § 22.220(d). 4 See Tex. R. App. P. 39.1(b). 5 See Tex. R. App. P. 39.1(c). 6 See Tex. R. App. P. 38.1(e), 39.1(d).
APPELLANT’S BRIEF PAGE 9 OF 43 STATEMENT OF THE CASE
Saucedo filed his Original Petition on May 12, 2023, seeking judicial review
pursuant to Section 2001.171 of the Texas Government Code of the TMB’s dismissal
of his complaint against Dr. Roberto Canales. 7 Among other matters, Saucedo
alleged that the TMB failed to meet its statutory obligation to conduct a competent
investigation of his complaint.8 The Board filed a Plea to the Jurisdiction on July 28,
2023, challenging the trial court’s jurisdiction over Saucedo’s lawsuit because of
sovereign immunity.
On May 22, 2025, Saucedo served jurisdictional discovery on the TMB.9 The
TMB objected to each request and did not provide responsive documents. 10 On
August 18, 2025, Saucedo filed a Motion to Compel Jurisdictional Discovery,
Motion for Continuance and Request for Attorneys’ Fees (“Motion to Compel”).11
On August 25, 2025, Saucedo filed his Third Amended Petition, adding an ultra vires
claim against Board Members12 and adding further factual allegations in support of
7 CR 3-20. 8 CR 11. 9 Supp. CR 193-99. 10 Supp. CR 201-21. 11 CR 112-26. 12 That is, Sherif Zaafran, M.D., Sharon J. Barnes, Devinder S. Bhatia, M.D., Michael E. Cokinos, Garry Crain, George L. De Loach, D.O., James S. Distefano, D.O., Kandace B. Farmer, D.O., Mary Green, M.D., Tomeka M. Herod, Zach Jones, M.D., Robert D. Martinez, M.D., LuAnn Morgan, Jayaram B. Naidu, M.D., Manuel Quinones, Jr., M.D., Luisa del Rosal, Jason K. Tibbels, M.D., Linda Troncoso, and David G. Vanderweide, M.D., in their official capacities as a members of the Texas Medical Board.
APPELLANT’S BRIEF PAGE 10 OF 43 its other claims. 13 Saucedo then filed his Fourth Amended Petition for Judicial
Review and Declaratory Relief (“Fourth Amended Petition”) on September 9,
2025.14
Saucedo’s Motion to Compel was denied by the trial court on September 5,
2025.15 Saucedo filed a Motion for Reconsideration,16 which the trial court denied
on October 20, 2025.17 That same day, the trial court granted the TMB’s Plea.18 This
appeal followed.
13 Id. 14 CR 128-210. 15 CR 127. 16 CR 434. 17 CR 211. 18 CR 212.
APPELLANT’S BRIEF PAGE 11 OF 43 ISSUES PRESENTED FOR REVIEW
Issue One: Saucedo met his pleading and evidentiary burden for his claim under
Section 2001.171 of the Texas Government Code. The trial court
has subject matter jurisdiction over this claim.
Issue Two: Saucedo met his pleading and evidentiary burden for his
constitutional claims. The trial court has jurisdiction over these
claims.
Issue Three: Saucedo met his pleading and evidentiary burden for his ultra vires
claims. The trial court has jurisdiction over these claims.
Issue Four: Saucedo should have been granted leave to amend.
Issue Five: The trial court abused its discretion by denying Saucedo’s Motion
to Compel.
APPELLANT’S BRIEF PAGE 12 OF 43 STATEMENT OF FACTS
The following facts are taken from Plaintiff’s Fourth Amended Petition and
are presumed true for the purposes of a plea to the jurisdiction.19
Dr. Roberto Canales failed to evaluate and treat David Saucedo’s daughter for
a shunt malfunction, resulting in the three-year old’s death on September 3, 2019.20
At that time, Saucedo was an appointee on the Texas Board of Nursing.21 In July 25,
2019, West Coast University proposed to establish a nursing program in Dallas.22
Saucedo voted against the proposal because it did not meet Texas’ standards.23 He
subsequently received calls from the Governor’s office questioning his vote and a
text from the General Counsel of the Board of Nursing:
Counsel: “Since the July meeting and no action vote on West Coast University there has been some significant interest generated from lobbyists and the governor’s office. Saucedo: “Guess I pissed off the wrong people.” Counsel: “You bet.”24 On April 3, 2020, Saucedo submitted a complaint to the Texas Medical Board,
including a sworn affidavit, that Canales failed to practice medicine with the
minimum standard of care resulting in the death of Saucedo’s daughter.25 On May
19 See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 238 (Tex. 2004). 20 CR 136. 21 CR 149. 22 Id. 23 Id. 24 CR 149. 25 CR 136.
APPELLANT’S BRIEF PAGE 13 OF 43 7, 2020, the TMB acknowledged receipt of Saucedo’s complaint and stated that it
was initiating an investigation to determine whether a violation of the Medical
Practice Act occurred.26 The TMB stated that during the course of the investigation
and until a final disposition is made, Saucedo would receive a status letter
approximately every ninety days.27 That same day, a TMB investigator provided
contact information and asked Saucedo to sign a waiver to disclose his identity. 28
Saucedo received form letters from the TMB approximately every ninety days
between May 7, 2020, and September 13, 2021.29 There is no indication that the
TMB performed any investigation after September 2021.30 The TMB did not contact
Saucedo during this time.31
On August 10, 2020, Saucedo sued Canales and others in the El Paso District
Court.32 On October 16, 2020, the TMB mailed Saucedo a letter stating that there
was insufficient evidence—in spite of the fact that there was a pending lawsuit by
Saucedo against Canales—to prove that a violation of the Medical Practices Act
occurred and Canales appropriately admitted Saucedo’s daughter to the hospital and
provided proper treatment for her. 33
26 CR 137. 27 Id. 28 Id. 29 Id. 30 Id. 31 CR 137. 32 Id. 33 CR 138-39.
APPELLANT’S BRIEF PAGE 14 OF 43 Five days later, on October 21, 2020, Saucedo requested an appeal of the
TMB’s dismissal. 34 Saucedo included an expert report by Dr. Bradley Peterson,
including curriculum vitae and a sworn affidavit from Dr. Tom Mayes along with a
copy of a wrongful death petition regarding Saucedo’s daughter which again was
filed in El Paso district court.35
On November 2, 2020, the TMB sent Saucedo a letter acknowledging his
request for an appeal and informing Saucedo that his appeal would be scheduled for
the next Board meeting on December 3, 2020.36 The letter further stated that TMB
would notify Saucedo in writing of a final decision.37
On December 3, 2020, Saucedo appeared before the TMB.38 Following the
meeting the TMB sent Saucedo a letter dated December 4, 2020, which stated that
the file would undergo further review and that the TMB will keep Saucedo informed
about the status of the file until a final determination is made.39 On December 21,
2020, March 24, 2021, June 23, 2021, and September 24, 2021, TMB sent Saucedo
substantially similar letters stating that the investigation was active and that he would
continue to be notified as to the status of the file until a final determination is made.40
34 CR 139. 35 Id. 36 Id. 37 Id. 38 CR 140. 39 Id. 40 Id.
APPELLANT’S BRIEF PAGE 15 OF 43 On June 3, 2022, Saucedo sent a letter to Dr. Sherif Zaafran, President of the
TMB.41 In this letter, Saucedo noted that he had not received a status update of his
complaint since September 24, 2021, and requested a meeting to discuss TMB’s
failure to discipline a dangerous doctor and TMB’s failure to provide 90-day letters
regarding the status of the investigation.42
On June 9, 2022, Saucedo had a meeting with Dr. Zaafran and Executive
Director Stephen Brint Carlton.43 Dr. Zaafran and Carlton informed Saucedo that
they were having difficulty finding an appropriate expert for the investigation. 44
After the meeting, Saucedo provided additional documents to supplement the
TMB’s investigation.45
On June 22, 2022, the TMB sent Saucedo a letter informing him that his
complaint had been reassigned to another investigator.46 On August 25, 2022, the
TMB sent Saucedo a letter informing him that his complaint had been referred to the
Litigation Department and set an Informal Settlement Conference (ISC) on
December 2, 2022. 47 Saucedo and his wife appeared at the ISC via Zoom and
provided a statement to the TMB.48
41 Id. 42 Id. 43 CR 140. 44 CR 140-41. 45 CR 141. 46 Id. 47 Id. 48 Id.
APPELLANT’S BRIEF PAGE 16 OF 43 On March 6, 2023, Saucedo sent an email to the TMB urging it to take
immediate action and take appropriate disciplinary action against Canales. 49 On
March 7, 2023, the TMB, through its attorney, sent Saucedo a letter informing him
that his complaint was dismissed on March 3, 2023.50
On April 6, 2023, Saucedo requested a rehearing.51 The TMB responded on
April 10, 2023, stating, “There is no more opportunity for appeal.”52
On April 11, 2023, Saucedo emailed the TMB seeking clarification. 53 On
April 12, 2023, TMB Director of Operations Christopher Palazola (“Palazola”),
responded to Saucedo’s April 11, 2023, email. 54 Palazola stated that appeals are
limited per complaint and not related to the point at which a complaint is dismissed.
Saucedo was on the Board of the Texas Nursing Board. He has voted on many
similar complaints.55 In his experience, less egregious violations of standards of care
have resulted in license revocation.56 Saucedo’s complaint is an outlier.
49 Id. 50 CR 141. 51 CR 142. 52 Id. 53 Id. 54 Id. 55 CR 153. 56 Id.
APPELLANT’S BRIEF PAGE 17 OF 43 SUMMARY OF THE ARGUMENT
Reviewing de novo, this Court should reverse the trial court’s order granting
the TMB’s Plea. The TMB’s sovereign immunity is waived pursuant to Section
2001.171 of the Texas Government Code. Saucedo met all the requirements of the
statute. Section 2001.171 applies because relevant statutes are silent regarding
Saucedo’s right to judicial review and there is no legislative history or other evidence
that the Legislature intended to preclude judicial review.
The TMB’s sovereign immunity is also waived because Saucedo raised
constitutional claims based upon self-executing constitutional provisions. Saucedo
met his pleading and evidentiary burden with respect to these claims. The TMB’s
sovereign immunity is waived because Saucedo raised ultra vires claims against
TMB Board Members. These claims are unchallenged and Saucedo met his pleading
and evidentiary burdens.
The trial court erred by not granting leave to amend. The trial court also
abused its discretion by denying Saucedo’s Motion to Compel. The documents
sought directly relate to jurisdictional issues and should have been provided years
ago. This Court should reverse and remand.
APPELLANT’S BRIEF PAGE 18 OF 43 ARGUMENT AND AUTHORITIES
I. Issue One: Saucedo Affirmatively Demonstrated the Trial Court’s Jurisdiction to Hear his Section 2001.171 Claim
The trial court erred by granting the TMB’s Plea. Saucedo met his burden to
affirmatively demonstrate the trial court’s jurisdiction to hear his claim under
Section 2001.171 of the Texas Government Code and raised fact issues regarding
this claim. This Court should reverse and remand.
A. Applicable Law
Whether a trial court has jurisdiction is a question of law subject to de novo
review.57 When considering a plea to the jurisdiction, this Court’s analysis “begins
with the live pleadings.”58 The determination is whether a plaintiff “has alleged facts
that affirmatively demonstrate the court's jurisdiction to hear the cause.” 59 This
Court construes the live pleadings liberally in favor of the plaintiff and, unless
challenged with evidence, accepts all allegations as true.60
When a plea challenges the existence of jurisdictional facts, the plaintiff has
the burden to adduce evidence to “raise a fact question on the jurisdictional issue.”61
“[A]ll the evidence is reviewed in the light most favorable to the plaintiff to
57 See Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). 58 Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012). 59 Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). 60 Id. 61 Id. at 227.
APPELLANT’S BRIEF PAGE 19 OF 43 determine whether a genuine issue of material fact exists.62 If the evidence creates a
fact question regarding the jurisdictional issue, the trial court may not grant the plea,
and the fact issue will be resolved at trial by the fact finder.63
B. Saucedo Affirmatively Demonstrated or Raised a Fact Issues Regarding the Trial Court’s Jurisdiction over his Section 2001.171 Claim
In his Fourth Amended Petition, Saucedo pled that the TMB’s sovereign
immunity is waived under Section 2001.171.64 Section 2001.171 states,
A person who has exhausted all administrative remedies available within a state agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter.65
Section 2001.171 is a limited waiver of sovereign immunity, 66 allowing for
judicial review of a final decision by a state agency for “those who satisfy the
section’s threshold requirements.” 67 Saucedo met his burden to allege facts and
provide evidentiary proof that his claim satisfies the section’s threshold
requirements. First, he is an “individual residing in El Paso, El Paso County,
62 Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019). 63 Miranda, 133 S.W.3d at 227–28. 64 CR 129. 65 Tex. Gov't Code § 2001.171. 66 See Tex. Dep't of Protective & Regulatory Services v. Mega Child Care, Inc., 145 S.W.3d 170, 198 (Tex. 2004). 67 Id.
APPELLANT’S BRIEF PAGE 20 OF 43 Texas;”68 under Section 2001.003 of the Texas Government Code, “person” means
an individual.69
Saucedo exhausted all administrative remedies. The procedures for complaint
and administrative investigations are contained in sections 154.051 to 151.058 of the
Texas Occupations Code and former 70 Title 22, Chapter 178 of the Texas
Administrative Code. Saucedo complied with all relevant rules.
Saucedo submitted a complaint to the TMB that Dr. Roberto Canales had
failed to treat or evaluate Saucedo’s daughter’s shunt malfunction on April 3, 2020:71
On May 7, 2020, the TMB mailed Saucedo a letter acknowledging receipt of
the complaint and informing him that the TMB was initiating an investigation:72
68 CR 131. 69 Tex. Gov't Code § 2001.003(5) 70 Chapter 178 was repealed by 50 TexReg 369, effective January 9, 2025. 71 CR 136, 157 (attached to Saucedo’s Fourth Amended Petition); see Tex. Occ. Code § 154.051 72 CR 137, 162; 22 Tex. Admin. Code § 178.5 (repealed effective January 9, 2025).
APPELLANT’S BRIEF PAGE 21 OF 43 On October 16, 2020, TMB mailed Saucedo a letter stating that the Board
determined there was insufficient evidence of his complaint:73
Five days later, on October 21, 2020, Saucedo appealed the Board’s dismissal,
including with his appeal an affidavit and copy of the petition Saucedo filed in El
Paso district court:74
On November 2, 2020, the TMB acknowledged Saucedo’s request for an
appeal and informed Saucedo that his appeal will be scheduled for the next Board
meeting on December 3, 2020.75 On December 3, 2020, Saucedo appeared before
the TMB.76 On December 4, 2020, the TMB sent Saucedo a letter stating that the file
would undergo further review and the TMB will keep Saucedo informed.77
73 CR 138, 164; 22 Tex. Admin. Code § 178.7 (repealed effective January 9, 2025). 74 CR 139, 166; 22 Tex. Admin. Code § 178.8 (repealed effective January 9, 2025). 75 CR 139. 76 CR 140; 22 Tex. Admin. Code § 178.8 (repealed effective January 9, 2025). 77 CR 140.
APPELLANT’S BRIEF PAGE 22 OF 43 On June 22, 2022, the TMB sent Saucedo a letter stating that his complaint
was reassigned to other investigators and referred to the Litigation Department. 78
Saucedo’s complaint was set for an Informal Settlement Conference on December
2, 2022:79
Saucedo and his wife provided a statement to the TMB on December 2,
2022.80 On March 7, 2023, TMB sent Saucedo a letter informing him that the case
was dismissed on March 3, 2023 and no further action would be taken:81
78 CR 141. 79 CR 141, 184. 80 Id. 81 CR 141-42, 197.
APPELLANT’S BRIEF PAGE 23 OF 43 On April 6, 2023, Saucedo requested a rehearing.82 TMB responded on April
12, 2023, telling Saucedo that “there is no further appeal process to pursue at
TMB.”83
Administrative remedies are exhausted.
Saucedo is aggrieved. “To be aggrieved, a party must have a justiciable
interest—that is, the agency's order must injure or threaten the party specifically and
differently from the public at large.” 84 Saucedo’s daughter died as a result of
Canales’ misconduct. His interests in both ensuring the TMB follow its own
procedures and in the status of Canales’ license differs from the public at large.
These interests, and Saucedo’s injury, have a constitutional dimension, as discussed
below. The TMB’s decision not to impose discipline or revoke Canales’ license
leaves Saucedo continually exposed to the risk that the same physician will continue
to practice.
The TMB proceeding was a contested case. A “contested case” is a
proceeding, including a ratemaking or licensing proceeding, in which a state agency
82 CR 142. 83 CR 142, 208. 84 CenterPoint Energy Entex v. R.R. Comm'n of Tex., 213 S.W.3d 364, 368 (Tex. App.—Austin 2006, no pet.)
APPELLANT’S BRIEF PAGE 24 OF 43 determines a party’s legal rights, duties, or privileges after providing an opportunity
for an adjudicative hearing. 85 Saucedo’s complaint was a licensing proceeding,
determining Canales’ legal right to be a licensed physician, after providing an
opportunity for an adjudicative hearing.
The TMB issued a final decision when it dismissed Saucedo’s case following
an Informal Settlement Conference on March 3, 2023 and stated that it would take
no further action.86
As a matter of law, Saucedo is entitled to judicial review under Section
2001.171. The TMB’s immunity is waived, because its enabling act neither
specifically authorizes nor prohibits judicial review. 87 First, there is no specific
language in the Occupations Code prohibiting judicial review. The Texas
Occupations Code only addresses judicial review for licensed medical practitioners,
providing that, “[a] person whose license to practice medicine has been revoked or
who is subject to other disciplinary action by the board may appeal to a Travis
County district court not later than the 30th day after the date the board decision is
final.”88 The code is silent as to the availability of judicial review for third party
85 Tex. Gov’t Code § 2001.003(1). 86 Id. 87 Tex. Gov’t Code § 2001.171; Tex Dep’t. of Protective & Regulatory Services v. Mega Child Care, Inc., 145 S.W.3d 170, 173 (Tex. 2004). 88 Tex. Occ. Code § 164.009.
APPELLANT’S BRIEF PAGE 25 OF 43 complainants whose complaints have been dismissed after an Informal Settlement
Conference.89
“In the absence of express statutory language prohibiting judicial review, a
legislative intent to prohibit judicial review must be established by specific
legislative history or other reliable evidence of intent.”90 No legislative history or
other reliable evidence of intent exists. In fact, it appears that the provisions of the
Occupations Code related to the informal disposition of contested cases, passed in
1993,91 were codified after the provision providing for judicial review of revocation
of a medical license, which were codified at the latest in 1984. 92 The Legislature
could not have considered dismissal following an Informal Settlement Conference
when it first allowed for judicial review of disciplinary proceedings because
Informal Settlement Conferences did not exist at the time.
St. Agnes Academy v. Texas Alcoholic Beverage Commission, 391 S.W.3d 277
(Tex. App.—Austin 2012, no pet.) is distinguishable. In St. Agnes, nearby
landowners – a school, a civic association and a resident’s association in Houston -
sought judicial review of the Texas Alcoholic Beverage Commission’s granting of
89 “A person whose license to practice medicine has been revoked or who is subject to other disciplinary action by the board may appeal to a Travis County district court not later than the 30th day after the date the board decision is final.” Tex. Occ. Code § 164.009. 90 Mega Child Care, Inc., 145 S.W.3d at 199. 91 Tex. Occ. Code § 164.003; see STATE BOARD OF MEDICAL EXAMINERS— CONTINUATION—OPERATION, 1993 Tex. Sess. Law Serv. Ch. 862 (S.B. 1062) (VERNON'S). 92 See Vernon's Ann.Civ.St. art. 4495b, § 4.09 (1984).
APPELLANT’S BRIEF PAGE 26 OF 43 an alcoholic beverage permit in favor of Club Bellaire d/b/a El Corral. 93 The
“protestants” asserted that they were entitled to judicial review under Section
2001.171 because the Alcoholic Beverage Code is silent regarding judicial review.94
The Austin Court of Appeals disagreed. The court noted that Section 11.67 of the
Alcoholic Beverage Code only allowed for judicial review “from an order of the
commission or administrator cancelling or suspending a permit or license.” 95 “The
TABC can take only four actions on an application for an alcoholic-beverage
permit—grant, refuse, cancel, or suspend.”96 According to the appellate court, by
restricting judicial review to only cancelation and suspension, the Code “effectively
authorizes only applicants to appeal adverse TABC decisions on permit
applications.”97
Saucedo’s complaint against Dr. Canales, and his suit for review of the
dismissal following an Informal Settlement Conference, has very little in common
with an application for an alcoholic beverage permit. To the extent there is an
“applicant” in a disciplinary proceeding, it is the TMB. 98 Saucedo was a
complainant, a “credible person” making a written statement charging a person with
93 St. Agnes Acad., 391 S.W.3d at 278. 94 See id. at 279. 95 Tex. Alco. Bev. Code § 11.67(a). 96 St. Agnes Acad., 391 S.W.3d at 283. 97 Id. 98 Tex. Occ. Code § 164.005
APPELLANT’S BRIEF PAGE 27 OF 43 committing an act. 99 Canales was the respondent. The Occupations Code
contemplates a wide range of actions the TMB may take, including refusing to
renew, revoking or suspending a license, placing a license holder on suspension,
reprimanding a license holder, placing restrictions on a license holder’s
authorization to practice medicine, requiring a license holder to submit to
counseling, treatment or education,100 entering into stipulations, agreed settlements
or consent orders (including remedial plans) with license holders, 101 delegating
complaints to committees for informal proceedings, 102 and dismissing baseless
complaints,103 a far cry from the four options provided to the Alcoholic Beverage
Commission. Section 164.009 only relate to a sliver of these action. Indeed, it is
unclear, but unrelated to this matter, if an Informal Settlement Conference is a
contemplated “disciplinary action” at all.
This lack of clarity is dispositive. Absent a showing of contrary intent, there
is a presumptive right to judicial review and waiver of immunity.104 TMB has not
and cannot overcome this presumption. The trial court erred in holding otherwise.
99 Tex. Occ. Code § 164.005 100 Tex. Occ. Code § 164.001 101 Tex. Occ. Code § 164.002 102 Tex. Occ. Code § 164.0025 103 Tex. Occ. Code § 164.0035 104 See St. Agnes Acad., 391 S.W.3d at 282 (“In Mega Child Care, the supreme court essentially recognized a presumption favoring judicial review of administrative actions but acknowledged that, as with all presumptions used in interpreting statutes, the presumption could be overcome by specific language, legislative history, or other reliable indicators of legislative intent.”).
APPELLANT’S BRIEF PAGE 28 OF 43 Reviewing de novo, this Court should reverse the trial court’s order granting TMB’s
Plea to the Jurisdiction. Saucedo met his pleading and evidentiary burden to show
the trial court had jurisdiction over his claim under Section 2001.171.
II. Issue Two: Saucedo Affirmatively Demonstrated the Trial Court’s Jurisdiction over his Constitutional Claims and Raised a Fact Issue Related to these Claims This Court should reverse the trial court’s order granting the TMB’s Plea.
Saucedo met his pleading and evidentiary burden with respect to his constitutional
A. Saucedo Met His Pleading and Evidentiary Burden for His Constitutional Claims Sovereign immunity is waived for suits for equitable remedies for violations
of constitutional rights. 105 Saucedo met his burden to plead viable constitutional
claims against TMB and to raise fact issues with respect to those claims. The trial
court erred in granting TMB’s Plea and this Court should reverse.
Saucedo invokes four constitutional provisions in his constitutional claims
against the TMB:
a. Article 1, Section 19 of the Texas Constitution: “No citizen of this
State shall be deprived of life, liberty, property, privileges or
105 See City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995)
APPELLANT’S BRIEF PAGE 29 OF 43 immunities, or in any manner disfranchised, except by the due
course of the law of the land.”106
b. Article 1, Section 27 of the Texas Constitution: “The citizens shall
have the right, in a peaceable manner, to assemble together for their
common good; and apply to those invested with the powers of
government for redress of grievances or other purposes, by petition,
address or remonstrance.”107
c. Due Process under the Fourteenth Amendment: “nor shall any State
deprive any person of life, liberty, or property, without due process
of law,”108 which includes rights such as the right to contact, marry,
and bring up children.
d. The Equal Protection under the Fourteenth Amendment: “nor deny
to any person within its jurisdiction the equal protection of the
laws.”109
All of these provisions are self-executing and waive sovereign immunity.
Section 19 and 27 are provisions of Texas’ Bill of Rights. The Texas Constitution
stipulates clearly that everything in its Bill of Rights is “excepted out of the general
106 CR 145; Tex. Const. art. I, § 19. 107 CR 145; Tex. Const. art. I, § 27. 108 CR 145; U.S. Const. amend. XIV, § 1. 109 CR 145; U.S. Const. amend. XIV, § 1.
APPELLANT’S BRIEF PAGE 30 OF 43 powers of government” and anything in violation of it shall be void. 110 A
constitutional provision is self-executing “if it supplies a sufficient rule by means of
which the right given may be enjoyed and protected or the duty imposed may be
enforced”, and when a provision only indicates principles, it is not self-executing.111
The Texas Constitution clearly states the means by which the rights may be protected
– violations of the Bill of Rights are void. Similarly, the federal guarantees of due
process and equal protection may also be protected through a request for injunctive
relief.112
In 2024, the Texas Supreme Court in State v. Loe reaffirmed that fit parents
have a “fundamental interest in directing the care, custody, and control of their
children free from government interference.” 113 When a law infringes on a fit
parent’s interest in directing the care, custody, and control of her child, Texas courts
treat the issue as one warranting heightened scrutiny.114
Saucedo met his evidentiary burden with respect to these constitutional
violations. In addition to providing testimony regarding the TMB’s actions, he also
testified as to the political machinations related to his place on the Texas Nursing
110 Tex. Const. art. I, § 29; see also City of Beaumont v. Bouillion, 896 S.W.2d 143, 148–49 (Tex. 1995). 111 See Mitchell Cnty. v. City Nat. Bank, 91 Tex. 361, 371, 43 S.W. 880, 883–84 (1898). 112 See City of Boerne v. Flores, 521 U.S. 507, 524, 117 S. Ct. 2157, 2166, 138 L. Ed. 2d 624 (1997); see also Trump v. Anderson, 601 U.S. 100, 121, 144 S. Ct. 662, 673, 218 L. Ed. 2d 1 (2024). 113 See State v. Loe, 692 S.W.3d 215 (Tex. 2024). 114 See id.
APPELLANT’S BRIEF PAGE 31 OF 43 Board. Both of these matters are relevant to the constitutional claims. The TMB
never made any sort of argument related to the political machinations, waiving any
argument here.
Saucedo met his pleading and evidentiary burden to demonstrate violations of
the Constitution, providing sufficient allegations and evidence to demonstrate that
the TMB did not follow its own process, failing to investigate, failing to provide an
expert physician panel to assist with Saucedo’s claims and failing to ensure that
Saucedo’s complaint was not dismissed without appropriate consideration. 115
Saucedo also alleged an equal protection violation based upon the Legislature’s
failure to provide administrative review of complaints by certain parties.116
III. Issue Three: Saucedo Met his Pleading and Evidentiary Burden for His Unchallenged Ultra Vires Claim The trial court erred in granting the TMB’s Plea. Saucedo met his burden to
plead an ultra vires claim against TMB officials. This Court should reverse and
remand.
First, the TMB did not challenge Saucedo’s ultra vires claim. Ultra vires
claims, on their face, waive a State’s sovereign immunity. There is no argument that
Saucedo failed to meet his pleading and evidentiary burdens to show a waiver of the
TMB’s immunity for the ultra vires claims. The trial court’s jurisdiction over the
115 CR 144-45. 116 CR 146.
APPELLANT’S BRIEF PAGE 32 OF 43 ultra vires claims is undisputed. This Court should reverse and remand for this reason
alone.
A suit against a state official who has acted “ultra vires” is not a suit against
the State that sovereign immunity bars.117 “To fall within this ultra vires exception,
a suit must not complain of a government officer's exercise of discretion, but rather
must allege, and ultimately prove, that the officer acted without legal authority or
failed to perform a purely ministerial act.”118
Saucedo alleged that the Board Members failed to perform ministerial acts.
Pursuant to Chapter 154 of the Texas Occupations Code, Board Members shall be
responsible for ensuring that a complaint is not dismissed without appropriate
consideration and that the person who files a complaint has an opportunity to explain
the allegations made. 119 Saucedo alleged, and the TMB never disputed, that the
Board Members failed to comply with Chapter 154 in several particulars:
1. Section 154.053(a) requires the Board to “periodically notify the
parties to the complaint of the status of the complaint until final
disposition unless the notice would jeopardize an investigation.”120
117 Phillips v. McNeill, 635 S.W.3d 620, 628 (Tex. 2021). 118 City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009) 119 Tex. Occ. Code § 154.056 (a)(2), (4). 120 Tex. Occ. Code § 154.053(a).
APPELLANT’S BRIEF PAGE 33 OF 43 Saucedo was not provided with status letters between September 21,
2021 and June 2022.121
2. Section 154.056 requires the Board to investigate Saucedo’s
complaint.122 The Board did not do so.123
3. Section 154.056(e) requires the Board to “provide for an expert
physician panel appointed by the board to assist with complaints and
investigations relating to medical competency by acting as expert
physician reviewers.” 124 Section 154.058 requires that the panel
“consist[] of physicians who practice in the same specialty as the
physician who is the subject of the complaint or in another specialty
that is similar to the physician's specialty.” 125 The panel
investigating Saucedo’s complaint against Canales did not have a
pediatric physician.126
4. Section 154.056(a) requires the Board to adopt rules to “ensure that
a complaint is not dismissed without appropriate consideration.”127
Saucedo’s complaint was not properly investigated and was
121 CR 144. 122 Tex. Occ. Code § 154.056 123 CR 144. 124 Tex. Occ. Code § 154.056(e). 125 Tex. Occ. Code § 154.058(b). 126 CR 144-45. 127 Tex. Occ. Code § 154.056(a)(2).
APPELLANT’S BRIEF PAGE 34 OF 43 dismissed without appropriate consideration.128 Saucedo submitted
his own materials to the TMB, including an expert report from a
physician board-certified in pediatric critical care and the wrongful
death petition against Dr. Canales to ensure that the TMB has
sufficient supporting evidence to make an informed decision.
Saucedo has alleged that the evidence was not diligently reviewed
before his complaint was dismissed.129
Here, Saucedo indisputably130 met his pleading burden to show that the Board
failed to perform the above mentioned ministerial acts and acted without legal
authority by not conducting adequate investigation and administrative process
before dismissing his complaint. Additionally, to the extent an evidentiary challenge
was made, Saucedo’s Fourth Amended Petition contains a declaration and exhibits
raising at the very least a fact issue as to all the allegations from the petition.
Saucedo demonstrated the trial court’s jurisdiction over his ultra vires claims.
The trial court erred by granting the TMB’s claim. This Court should reverse.
IV. Issue Four: Saucedo Should Have Been Granted Leave to Amend Even if the trial court believed Saucedo’s pleading to be deficient, dismissal
with prejudice was improper.
128 CR 145. 129 CR 145. 130 The TMB never even mentioned the ultra vires claims.
APPELLANT’S BRIEF PAGE 35 OF 43 Under Texas law, when a plea to the jurisdiction does not affirmatively
demonstrate incurable defects in jurisdiction but only challenges the sufficiency of
the facts to demonstrate the trial court’s jurisdiction, the plaintiff shall be afforded
an opportunity to amend the Petition rather than having the case dismissed outright
on the plea.131 All of the allegations set out in TMB’s First Amended Plea to the
Jurisdiction fall short of showing any incurable jurisdictional defect. In fact, Saucedo
met his pleading and evidentiary burden for all his causes of action. The TMB has
not conclusively negated the existence of jurisdiction. The trial court therefore erred
by granting TMB’s First Amended Plea to the Jurisdiction.
V. Issue Five: the Trail Court Abused Its Discretion by Denying Saucedo’s Motion to Compel Jurisdictional Discovery The trial court abused its discretion in denying Saucedo’s Motion to Compel
Jurisdictional Discovery. This Court should reverse.
To determine if a court has jurisdiction, courts may consider evidence “and
must do so when necessary to resolve the jurisdictional issues raised.”132 “[C]ourts
should allow ‘reasonable opportunity for targeted discovery’ if necessary to
illuminate jurisdictional facts in a plea to the jurisdiction.133
131 Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). 132 Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). 133 Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 491 (Tex. 2012) (quoting Miranda, 133 S.W.3d at 233).
APPELLANT’S BRIEF PAGE 36 OF 43 Saucedo filed his Original Petition for Judicial Review and Declaratory Relief
in accordance with Section 2001.171 of the Texas Government Code on May 12,
2023. 134 The TMB filed its first Plea to the Jurisdiction, Original Answer and
Affirmative Defenses on July 28, 2023.135 Pursuant to Section 2001.175(b), a state
agency is required to provide the reviewing court the original or a certified copy of
the entire record of the proceeding under review within the time permitted for filing
an answer or within additional time allowed by the court.136 The TMB had a statutory
obligation to provide the record of the proceeding in 2023, but never did so.
Instead, Saucedo was forced to seek the record in jurisdictional discovery. For
example. Saucedo sought documents related to the TMB’s investigation into his
complaint against Canales, a matter that would have been included in the record:137
Saucedo also sought documents “reflecting the Board’s decision to dismiss
the Complaint,” again a matter that would have been in the record:138
134 CR 3. 135 CR 21. 136 Tex. Gov’t Code § 2001.175(b). 137 Supp. CR 199. 138 Supp. CR 197.
APPELLANT’S BRIEF PAGE 37 OF 43 These requests relate to Saucedo’s unchallenged ultra vires claims, that is, the
claims that the Board Members “acted without legal authority or failed to perform a
purely ministerial act.”139 By granting the TMB’s Plea, the Court held that Saucedo
failed to meet his burden to even plead an ultra vires claim against the Board
Members. While Saucedo disputes this holding, further factual development would
have allowed Saucedo to provide evidence of the full extent of, for example, the
Board Members’ failure to investigate.
Saucedo’s discovery requests also relate to his constitutional claims. For
example, the elements of a due process/due course of law claim are (1) whether there
is a liberty or property interest entitled to due process protection and (2) what process
is due. 140 Saucedo’s discovery relates to the second element, the process that
Saucedo was provided.
Saucedo established that discovery he sought was and is necessary to decide
whether the trial court has jurisdiction to hear this case. Additionally, jurisdictional
discovery need not be confined exclusively to jurisdictional questions and may
139 City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009) 140 See Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995)
APPELLANT’S BRIEF PAGE 38 OF 43 properly encompass issues that also bear on the merits. 141 Further, Texas courts
consider a plea to jurisdiction have broad discretion to allow “reasonable opportunity
for targeted discovery” and to afford parties additional time to develop the evidence
and prepare for the hearing.142
The trial court denied Saucedo the very discovery needed to meet his
jurisdictional burden, then faulted Saucedo for not presenting sufficient
jurisdictional evidence and grant the TMB’s Plea to the Jurisdiction. This is precisely
the kind of arbitrary and inconsistent exercise of discretion that constitutes an abuse
and requires reversal.
VI. The Combined Errors Were Harmful and Require Reversal and Remand But for the trial court’s errors, Saucedo’s claim would remain pending for
resolution after appropriate jurisdictional development. The trial court’s granting of
the plea and denial of jurisdictional discovery was the rendition of an improper final
judgment.
PRAYER
Defendants respectfully request that this Court reverse the trial court’s order
granting Appellees’ Plea to the Jurisdiction, vacate the order denying Saucedo’s
Motion to Compel Jurisdictional Discovery and remand the case to trial court to
141 In re Christianson Air Conditioning & Plumbing, LLC, 639 S.W.3d 671, 676 (Tex. 2022). 142 Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 643 (Tex. 2012).
APPELLANT’S BRIEF PAGE 39 OF 43 permit jurisdictional discovery.
Saucedo further request such other and further relief to which he may show
himself to be justly entitled.
Signed: January 5, 2026
Respectfully submitted,
HYDE KELLEY LLP 2806 Flintrock Trace, Suite A104 Austin, Texas 78738 Telephone: (512) 686-0700 Facsimile: (866) 929-1641
/s/ George E. Hyde GEORGE E. HYDE Texas State Bar No. 45006157 ghyde@txlocalgovlaw.com MATTHEW L. WESTON Texas State Bar No. 24037698 mweston@txlocalgovlaw.com
ATTORNEYS FOR APPELLANT David Saucedo
APPELLANT’S BRIEF PAGE 40 OF 43 COMPLIANCE CERTIFICATE
In compliance with Tex. R. App. P. 9.4(i)(3), this is to certify that this brief
of appellants contains no more than 5,825 words, which does not include the
caption, identity of parties and counsel, statement regarding oral argument, table
contents, index of authorities, statement of issues presented, signature, proof of
service, certificate of compliance, or appendix.
/s/ George E. Hyde ________________ GEORGE E. HYDE
CERTIFICATE OF SERVICE I, the undersigned attorney, hereby certify that on January 5, 2026, a true and correct copy of the forgoing document was served in accordance with Texas Rules of Appellate Procedure upon counsel of record in this cause via electronic service and email.
/s/ George E. Hyde GEORGE E. HYDE
APPELLANT’S BRIEF PAGE 41 OF 43 APPENDIX
Appendix A September 25, 2025 Order Denying Plaintiff’s Motion to Compel Jurisdictional Discovery, Motion for Continuance and Request for Attorney’s Fees
Appendix B October 20, 2025 Order Granting Defendant Texas Medical Board’s Plea to the Jurisdiction
Appendix C October 20, 2025 Order Denying Plaintiff’s Motion for Reconsideration
Appendix D Section 2001.171, Texas Government Code Appendix E Section 164.009, Texas Occupations Code Appendix F Section 154.056, Texas Occupations Code
APPELLANT’S BRIEF PAGE 42 OF 43 Appendix A 09/05/2025 02:31:58 PM Velva L. Price District Clerk Travis County D-1-GN-23-002616 Cause No. D-1-GN-23-002616
DAVID SAUCEDO, § IN THE DISTRICT COURT OF § Plaintiff, § § v. § TRAVIS COUNTY, TEXAS § TEXAS MEDICAL BOARD, § § Defendant. § 126th JUDICIAL DISTRICT
ORDER DENYING PLAINTIFF’S MOTION TO COMPEL JURISDICTIONAL DISCOVERY, MOTION FOR CONTINUANCE AND REQUEST FOR ATTORNEY'S FEES
This matter came before the Court upon Plaintiff’s Motion to Compel
discovery, Motion for Continuance, and Request for Attorney’s Fees (the
“Motion”). After considering Plaintiff’s Motion, any responses to it, the
arguments and authorities presented by counsel, and applicable law, the
Court concludes that Plaintiff’s Motion should be denied.
Accordingly, it is ORDERED that Plaintiff’s Motion be and is DENIED.
______________________________________ Signed September 5, 2025. PRESIDING JUDGE
I, VELVA L PRICE, District Clerk, Travis County, Texas, do hereby certify that this is a true and correct copy as same appears of record in my office. Witness my hand and sea of office 12/05/2025 02:41:52 o"---..,.--------------.-----
f,;t• 4liik~ ~ \\ ,· J VELVA L. PRICE rnrv DISTRICT CLERK --------) By Deputy: /_/ -=:::-¾-~;;;:i..
127 Appendix B 10/20/2025 04:42:27 PM Velva L. Price District Clerk Travis County D-1-GN-23-002616 Cause No. D-1-GN-23-002616
DAVID SAUCEDO, § IN THE DISTRICT COURT OF § Plaintiff, § § v. § TRAVIS COUNTY, TEXAS § TEXAS MEDICAL BOARD, § § Defendant. § 126th JUDICIAL DISTRICT
__________
ORDER GRANTING DEFENDANT TEXAS MEDICAL BOARD’S PLEA TO THE JURISDICTION
This matter came before the Court upon Defendant Texas Medical Board’s
(TMB) Amended Plea to the Jurisdiction (the “Plea”). After considering TMB’s Plea,
the response, Plaintiff’s Original and all Amended Petitions, any evidence at the
hearing, the arguments and authorities presented by counsel, and applicable law, the
Court concludes that TMB’s Plea is well taken and should be granted.
Accordingly, it is ORDERED that TMB’s Plea be and is GRANTED. It is
further ORDERED that all of Plaintiff’s claims against TMB are DISMISSED.
This judgment disposes of all claims against TMB and is final and appealable.
All requested relief not specifically granted herein is denied.
I, VELVA L PRICE, District Clerk, Travis County, Signed ______________________________________ Texas, on October 20,that 2025. do hereby certify this is a true and PRESIDING JUDGE correct copy as same appears of record in my office. Witness my hand and seal of office 12/05/2025 02:41:53 o"---..,.--------------.-----
r.;J~" 4fji)I~ ~ \\ ,· J VELVA L. PRICE rnrv DISTRICT CLERK --------) By Deputy: /_/ -=:::-¾-~;;;:i..
212 Appendix C 10/20/2025 04:41:47 PM Velva L. Price District Clerk Travis County D-1-GN-23-002616 Cause No. D-1-GN-23-002616
DAVID SAUCEDO, § IN THE DISTRICT COURT OF § Plaintiff, § § v. § TRAVIS COUNTY, TEXAS § TEXAS MEDICAL BOARD, § § Defendant. § 126th JUDICIAL DISTRICT __________
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
On this day this Court considered Plaintiff David Saucedo’s Motion to
Reconsider its Order of September 5, 2025, in which Plaintiff’s Motion to
Compel Jurisdictional Discovery, Motion for Continuance, and Request for
Attorneys’ Fees (“Motion”) was denied. After considering the Motion, the
response, the reply, the evidence, pleadings and briefings and the Court’s
entire file, the Court FINDS that Plaintiff’s Motion should be and hereby is
DENIED.
______________________________________ Signed October 20, 2025. PRESIDING JUDGE
I, VELVA L PRICE, District Clerk, Travis County, Texas, do hereby certify that this is a true and correct copy as same appears of record in my office. Witness my hand and seal of office 12/05/2025 On _ _ _~ 02:41:53 -------~----
~/iJJJfo3 ;;:: VELVA L. PRICE DISTRICT CLERK . - - - - - --) By Deputy: / .=:::-±-·~.;;;:,_
211 Appendix D § 2001.171. Judicial Review, TX GOVT § 2001.171
Vernon's Texas Statutes and Codes Annotated Government Code (Refs & Annos) Title 10. General Government (Refs & Annos) Subtitle A. Administrative Procedure and Practice Chapter 2001. Administrative Procedure (Refs & Annos) Subchapter G. Contested Cases: Judicial Review (Refs & Annos)
V.T.C.A., Government Code § 2001.171
§ 2001.171. Judicial Review
Currentness
A person who has exhausted all administrative remedies available within a state agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter.
Credits Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993.
V. T. C. A., Government Code § 2001.171, TX GOVT § 2001.171 Current through the end of the 2025 Regular and Second Called Sessions of the 89th Legislature.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 Appendix E § 164.009. Judicial Review, TX OCC § 164.009
Vernon's Texas Statutes and Codes Annotated Occupations Code (Refs & Annos) Title 3. Health Professions (Refs & Annos) Subtitle B. Physicians (Refs & Annos) Chapter 164. Disciplinary Actions and Procedures (Refs & Annos) Subchapter A. General Provisions
V.T.C.A., Occupations Code § 164.009
§ 164.009. Judicial Review
A person whose license to practice medicine has been revoked or who is subject to other disciplinary action by the board may appeal to a Travis County district court not later than the 30th day after the date the board decision is final.
Credits Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
V. T. C. A., Occupations Code § 164.009, TX OCC § 164.009 Current through the end of the 2025 Regular and Second Called Sessions of the 89th Legislature.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 Appendix F § 154.056. General Rules Regarding Complaint Investigation;..., TX OCC § 154.056
Vernon's Texas Statutes and Codes Annotated Occupations Code (Refs & Annos) Title 3. Health Professions (Refs & Annos) Subtitle B. Physicians (Refs & Annos) Chapter 154. Public Interest Information and Complaint Procedures Subchapter B. Complaint Procedures
V.T.C.A., Occupations Code § 154.056
§ 154.056. General Rules Regarding Complaint Investigation; Disposition
Effective: September 1, 2023 Currentness
(a) The board shall adopt rules concerning the investigation and review of a complaint filed with the board. The rules adopted under this section must:
(1) distinguish among categories of complaints and give priority to complaints that involve sexual misconduct, quality of care, and impaired physician issues;
(2) ensure that a complaint is not dismissed without appropriate consideration;
(3) require that the board be advised of the dismissal of a complaint and that a letter be sent to the person who filed the complaint and to the physician who was the subject of the complaint explaining the action taken on the complaint;
(4) ensure that a person who files a complaint has an opportunity to explain the allegations made in the complaint;
(5) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator;
(6) provide for an expert physician panel authorized under Subsection (e) to assist with complaints and investigations relating to medical competency; and
(7) require the review of reports filed with the National Practitioner Data Bank for any report of the termination, limitation, suspension, limitation in scope of practice, or probation of clinical or hospital staff privileges of a physician by:
(A) a hospital;
(B) a health maintenance organization;
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 § 154.056. General Rules Regarding Complaint Investigation;..., TX OCC § 154.056
(C) an independent practice association;
(D) an approved nonprofit health corporation certified under Section 162.001; or
(E) a physician network.
(b) The board shall:
(1) dispose of each complaint in a timely manner; and
(2) establish a schedule for conducting each phase of a complaint that is under the control of the board not later than the 30th day after the date the board receives the complaint.
(c) The executive director shall notify the board of a complaint that is unresolved after the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint.
(d) The board shall adopt other rules as appropriate to administer this subchapter.
(e) The board by rule shall provide for an expert physician panel appointed by the board to assist with complaints and investigations relating to medical competency by acting as expert physician reviewers. Each member of the expert physician panel must be licensed to practice medicine in a member state, as defined by Section 171.002. The rules adopted under this subsection must include provisions governing the composition of the panel, qualifications for membership on the panel, length of time a member may serve on the panel, grounds for removal from the panel, the avoidance of conflicts of interest, including situations in which the affected physician and the panel member live or work in the same geographical area or are competitors, and the duties to be performed by the panel. The board's rules governing grounds for removal from the panel must include providing for the removal of a panel member who is repeatedly delinquent in reviewing complaints and in submitting reports to the board. The board's rules governing appointment of expert physician panel members to act as expert physician reviewers must include a requirement that the board randomly select, to the extent permitted by Section 154.058(b) and the conflict of interest provisions adopted under this subsection, panel members to review a complaint who are:
(1) licensed to practice medicine in this state; or
(2) licensed to practice medicine in a member state, as defined by Section 171.002, if there are no panel members licensed to practice medicine in this state available to review the complaint in a timely manner.
(f) In the board rules adopted under Subsection (a)(3), the board shall require that the letter informing the person who filed the complaint of the dismissal of the complaint include an explanation of the reason the complaint was dismissed.
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 § 154.056. General Rules Regarding Complaint Investigation;..., TX OCC § 154.056
Credits Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 202, § 9, eff. June 10, 2003; Acts 2005, 79th Leg., ch. 269, § 1.17, eff. Sept. 1, 2005; Acts 2023, 88th Leg., ch. 827 (H.B. 1998), § 5, eff. Sept. 1, 2023.
V. T. C. A., Occupations Code § 154.056, TX OCC § 154.056 Current through the end of the 2025 Regular and Second Called Sessions of the 89th Legislature.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Victoria Wilhelm on behalf of George Hyde Bar No. 45006157 vwilhelm@txlocalgovlaw.com Envelope ID: 109708428 Filing Code Description: Brief Requesting Oral Argument Filing Description: Appellant's Brief Status as of 1/6/2026 1:59 PM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
George E.Hyde Ghyde@txlocalgovlaw.com 1/6/2026 1:34:46 PM SENT
Matthew Weston mweston@txlocalgovlaw.com 1/6/2026 1:34:46 PM SENT
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Patrick Todd Patrick.Todd@oag.texas.gov 1/6/2026 1:34:46 PM SENT
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David Saucedo v. Texas Medical Board, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-saucedo-v-texas-medical-board-texapp-2026.