Jorge R. Guevara, M.D. v. Texas Medical Board

Opinion

ACCEPTED 15-25-00036-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 6/30/2025 6:29 PM CHRISTOPHER A. PRINE No. 15-25-00036-CV CLERK FILED IN 15th COURT OF APPEALS In the Court of Appeals AUSTIN, TEXAS Fifteenth Court of Appeals District 6/30/2025 6:29:00 PM CHRISTOPHER A. PRINE Clerk JORGE R. GUEVARA, M.D., Appellant

v.

TEXAS MEDICAL BOARD, Appellee

On Appeal from Cause No. D-1-GN-23-007371 In the 353rd Judicial District Court, Travis County The Honorable Sherine Thomas, Judge Presiding

APPELLANT’S BRIEF

Jason Davis State Bar No. 00793592 E-mail: jdavis@dslawpc.com Hayley Ellison State Bar No. 24074175 E-mail: hellison@dslawpc.com DAVIS & SANTOS, PLLC 719 S. Flores Street San Antonio, Texas 78204 Tel: (210) 853-5882 Fax: (210) 200-8395

Attorneys for Appellant

ORAL ARGUMENT NOT REQUESTED Identity of Parties and Counsel Appellant: Appellate Counsel:

Jorge R. Guevara, M.D. Jason Davis E-mail: jdavis@dslawpc.com Hayley Ellison, Lead Counsel E-mail: hellison@dslawpc.com DAVIS & SANTOS, PLLC 719 S. Flores Street San Antonio, Texas 78204 Tel.: (210) 853-5882

Trial Counsel:

John J. Rivas Ethan Yat Fai Lau RIVAS GOLDSTEIN, LLP

Appellee: Trial and Appellate Counsel:

Texas Medical Board Kathy Johnson E-mail: Kathy.Johnson@oag.texas.gov Ted Ross E-mail: Ted.Ross@oag.texas.gov OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 Austin, Texas 78711 Tel.: (512) 475-4191

2 Table of Contents

Identity of Parties and Counsel ..................................................................... 2

Table of Contents......................................................................................... 3

Index of Authorities ..................................................................................... 6

Statement of the Case ................................................................................... 8

Statement Regarding Oral Argument ............................................................ 9

Note Regarding References to the Administrative Record ............................ 10

Issues Presented ......................................................................................... 11

Statement of Facts...................................................................................... 13

I. Dr. Guevara is a family physician and small business owner. .......... 13

II. The State investigated and assessed penalties against MAB and the physician in charge of its radiology department—not Dr. Guevara. ................................................................................. 14

III. The Texas Medical Board imposed professional discipline on Dr. Guevara for conduct unrelated to his medical practice. ............. 15

IV. The trial court affirmed the improper final agency decision. ............ 17

Summary of the Argument ......................................................................... 17

Argument .................................................................................................. 19

I. Standard of review......................................................................... 19

II. The TMB abused its discretion by exceeding the scope of its disciplinary authority under the Medical Practice Act. .................... 19

3 A. The TMB has authority to regulate the practice of medicine only—nothing more. ........................................ 20

B. The TMB abuses its discretion if it exceeds its regulatory mandate. ........................................................ 20

C. The TMB abused its discretion by disciplining Dr. Guevara for conduct unconnected to the practice of medicine. .................................................................... 22

i. Dr. Guevara’s conduct as an RSO was not connected with the practice of medicine in a manner likely to deceive or defraud the public......... 25

ii. Dr. Guevara’s conduct as a business owner was not connected with the practice of medicine in a manner likely to deceive or defraud the public. . 26

III. The TMB’s finding of lack of diligence is not supported by substantial evidence and is therefore arbitrary and capricious. ......... 30

IV. The TMB’s imposition of penalties is unreasonable, arbitrary, and capricious. .............................................................................. 33

Conclusion and Prayer ............................................................................... 35

Certificate of Compliance ........................................................................... 37

Certificate of Service .................................................................................. 37

Appendix:

Tab A: Final Order on Plaintiff’s Original Petition (CR 379–80)

Tab B: Agency Final Decision (CR 33–45)

4 Tab C: Aleman v. Tex. Med. Bd., 573 S.W.3d 796 (Tex. 2019)

Tab D: TEX. OCC. CODE § 164.051

Tab E: TEX. OCC. CODE § 164.052

Tab F: TEX. OCC. CODE § 164.053

5 Index of Authorities Cases Aleman v. Tex. Med. Bd., 573 S.W.3d 796 (Tex. 2019) ...............................................................passim

Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945 (Tex. 1998) ............................................................... 28, 29

McDonnell Douglas Corp. v. U.S. Dep’t of the Air Force, 375 F.3d 1182 (D.C. Cir. 2004)........................................................... 33, 35

Miller v. R.R. Comm'n, 363 S.W.2d 244 (Tex. 1962) .................................................................... 31

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .................................................................................. 33

Park Haven, Inc. v. Tex. Dep’t of Hum. Servs., 80 S.W.3d 211 (Tex. App.—Austin 2002, no pet.) .................................... 19

Save Our Springs All., Inc. v. TCEQ, No. 23-0282, 2025 WL 1085176 (Tex. Apr. 11, 2025) (slip op.) ................. 31

Tex. Dep’t of Ins. v. State Farm Lloyds, 260 S.W.3d 233 (Tex. App.—Austin 2008, no pet.) ............................. 33, 35

Tex. Health Facilities Comm’n v. Charter Med.-Dall., Inc., 665 S.W.2d 446 (Tex. 1984) .................................................................... 31

6 Statutes TEX. BUS. ORGS. CODE § 301.012 ............................................................... 27

TEX. GOV’T CODE §§ 2001.141 ................................................................................................. 31 2001.174 ............................................................................................ 19, 30

TEX. OCC. CODE §§ 151.002 ............................................................................................. 20, 25 151.003 .................................................................................................. 30 152.001 .................................................................................................. 20 164.051 .............................................................................................passim 164.052 .................................................................................................. 16 164.053 ............................................................................................. 16, 22 Regulations 22 TEX. ADMIN. CODE § 190.8 .................................................................... 16

25 TEX. ADMIN. CODE § 289.252 ........................................................... 14, 25

7 Statement of the Case

Nature of the Case: This is an appeal from an administrative decision of the Texas Medical Board (“TMB”). CR 4. The TMB issued a final agency decision imposing professional discipline on Appellant, a physician. CR 33. After exhausting his administrative remedies, Appellant sought judicial review in the trial court. CR 4. Trial Court: 353rd Judicial District Court, Travis County The Honorable Sherine Thomas, Judge Presiding Course of Proceedings: The trial court considered the administrative record and the parties’ briefs on the merits. See CR 379–80. Trial Court’s Disposition: The trial court affirmed the TMB’s final agency decision in all respects. CR 380.

8 Statement Regarding Oral Argument

Because the legal and factual issues in this appeal are straightforward,

Appellant does not believe oral argument would be helpful to the Court. If the

Court decides to grant oral argument, Appellant respectfully requests an

opportunity to attend and present argument.

9 Note Regarding References to the Administrative Record

The TMB hand-filed the Administrative Record in the trial court on a flash

drive. CR 206. Appellant designated the flash drive for inclusion in the Clerk’s

Record, but it was omitted. CR 396 (item #8). Appellant requested that the

District Clerk supplement the Clerk’s Record with the flash drive, and the

District Clerk requested that Appellant obtain an order from the trial court

directing her to do so. Appellant’s motion to direct the District Clerk to transfer

the flash drive to this Court is pending in the trial court.

The Administrative Record contains six PDF files:

(1) a certification and table of contents

(2) a redacted, Bates-labeled copy of the administrative record

Cited: AR at [Bates-labeled page #]

(3) the transcript of the Hearing on the Merits

Cited: AR HOM at [page:line]

(4) the TMB’s exhibits

Cited: AR TMB Ex.[#] at [Bates-labeled page #]

(5) Appellant’s exhibits

Cited: AR Guevara Ex.[#] at [Bates-labeled page #]

(6) post-hearing filings

10 Issues Presented

1. The Administrative Procedures Act (“APA”), which governs

courts’ review of final agency decisions, requires reversal of an agency order if

the agency abused its discretion in making it. The Supreme Court of Texas has

held an agency abuses its discretion by professionally disciplining a physician

without express statutory authority to do so. The TMB has authority to

discipline a physician for conduct connected with his practice of medicine that

is likely to deceive or defraud the public. Here, however, the TMB disciplined

Appellant Dr. Jorge R. Guevara, M.D. for conduct wholly unrelated to his

practice of medicine. Did the trial err by affirming the TMB’s final order because it

imposes discipline beyond its delegated authority to do so?

2. The APA requires every final agency decision to include findings of

fact that are clear, specific, non-conclusory, and supportive of the ultimate

statutory findings. An agency order that does not include such findings is

unsupported by substantial evidence and must be set aside. Here, the TMB

found Dr. Guevara responsible for failing to use proper diligence in his

professional practice but did not even attempt to describe the facts supporting

that conclusory finding in its final order. Did the trial court err by affirming the

TMB’s final order because it is unsupported by substantial evidence?

11 3. The APA requires courts to hold unlawful and set aside any agency

decision that is arbitrary or capricious. An agency decision is arbitrary and

capricious if, for example, the agency reached an unreasonable result. Here, the

TMB barred Dr. Guevara from owning, operating, or being associated in any

way with any radiology program, even though this case only involved

mammography. This result is unreasonable because it would force Dr. Guevara

to divest from the radiology department of his business despite there being no

allegation that Dr. Guevara committed misconduct related to radiology

generally. Did the trial court err by affirming the TMB’s final order because it is

arbitrary, capricious, and unreasonable?

12 Statement of Facts

I. Dr. Guevara is a family physician and small business owner.

Dr. Guevara has been a licensed Texas physician since 1995. CR 186 (citing

AR TMB Ex. 42 at TMB0001815). He is board-certified in internal medicine and

substance abuse. CR 186 (AR TMB Ex. 42 at TMB0001814).

For the last twenty years, Dr. Guevara has owned Medical Associates of

Brownsville, PA (“MAB”), a licensed, multi-discipline medical office serving

underprivileged patients in historically underserved communities. CR 186–87

(citing AR TMB Ex. 42 at TMB0001819, 29). MAB’s practice includes: (1)

radiology (including mammography), (2) a family practice, (3) physical therapy,

and (4) a sleep center. CR 187 (citing AR Guevara Ex. R-1). Each of these four

departments is managed independently by its respective staff. Id. At all times,

Dr. Guevara worked in the family practice department providing family

medicine services. Id.

In addition to his family medicine practice, Dr. Guevara is the radiology

department’s Radiation Safety Officer (“RSO”). CR 187 (citing AR TMB Ex. 42

at TMB0001831). The RSO is responsible for the use, handling, and storage of

radioactive materials, and his primary function is to prevent accidental radiation

exposure. CR 187. The RSO’s duties also include establishing and overseeing the

13 department’s safety, emergency, and other procedures to prevent accidental

exposure, as well as conducting surveys of and investigations into occupational

radiation exposure. CR 187 (citing 25 TEX. ADMIN. CODE § 289.252(f)(3)).

Although Dr. Guevara is a physician, the RSO need not be, and Dr.

Guevara did not practice medicine in his role as RSO. CR 187–88; see also 25

TEX. ADMIN. CODE § 289.252(f) (RSO qualification requirements). The RSO is

not authorized to implement quality assurance and control policies for the

radiology department. CR 187–88. The RSO also does not assess image quality

for readability or to ensure compliance with applicable standards. Id.

Kimberly Barner was the manager of MAB’s radiology department and

oversaw the department’s business operations during the period relevant to this

case. CR 187 (citing AR TMB Ex. 42 at TMB0001837–44, AR TMB Ex. 44 at

TMB0002055). Dr. Allan Kapilivsky was the lead interpreting physician and was

responsible for interpreting mammogram images, supervising technicians, and

ensuring compliance with quality assurance/control policies and laws. Id.

II. The State investigated and assessed penalties against MAB and its physician in charge—not Dr. Guevara.

On January 10, 2019, the Texas Department of State Health Services

(“DSHS”) inspected MAB’s radiology department. CR 188 (citing AR TMB Ex.

44 at TMB0002054–55). DSHS identified several deficiencies related to quality

14 assurance and control and technician screening processes related solely to

mammography. Id. No deficiencies were identified for other imaging studies. Id.

DSHS initiated an investigation into MAB and Dr. Kapilivsky (the

“DSHS Case”). CR 188; see also Tex. Dept. of State Health Servs. v. Med. Assocs. of

Brownsville, PA, No. XXX-XX-XXXX. Following an administrative hearing, an ALJ

recommended finding MAB and Dr. Kapilivsky in violation of several

administrative regulations. CR 188–89 (citing AR TMB Ex. 44 at TMB0002058–59),

CR 120. DSHS adopted the ALJ’s findings of fact and conclusions of law and

assessed an administrative penalty, which MAB promptly paid. CR 189 (citing

AR TMB Ex. 44 at TMB0002061–62). Dr. Guevara was not individually a party

to the DSHS Case and was not found personally responsible for any violations.

CR 188–89.

III. The Texas Medical Board imposed professional discipline on Dr. Guevara for conduct unrelated to his medical practice.

The TMB nevertheless filed a complaint with the State Office of

Administrative Hearings against Dr. Guevara based on the identical issues

adjudicated in the DSHS Case. CR 189 (citing AR at TMB0000002). After an

administrative hearing, the ALJ found Dr. Guevara committed four violations

of the Medical Practice Act:

15 (1) engaging in unprofessional conduct that was likely to deceive or defraud the public by committing acts that (a) violated the regulations governing mammography providers and their RSOs and (b) were connected to Dr. Guevara’s practice of medicine (TEX. OCC. CODE §§ 164.051(a)(1), .052(a)(5), .053(a)(1));

(2) engaging in unprofessional conduct that was likely to deceive or defraud the public by failing to adequately supervise the activities of employees under his supervision (TEX. OCC. CODE §§ 164.051(a)(1), .052(a)(5), .053(a)(8));

(3) engaging in unprofessional conduct that was likely to deceive or defraud the public by delegating professional medical responsibility or acts to a person he knew or had reason to know was not qualified to perform those responsibilities or acts (TEX. OCC. CODE §§ 164.051(a)(1), .052(a)(5), .053(a)(9)); and

(4) failing to use proper diligence in his professional practice, which constitutes a failure to practice in an acceptable manner consistent with the public health and welfare (TEX. OCC. CODE § 164.051(a)(6); 22 TEX. ADMIN. CODE § 190.8(1)(C)).

CR 189 (citing AR at TMB0001091); see also CR 40 ¶¶ 6–9. The TMB adopted the

ALJ’s findings of fact and conclusions of law and signed a final order on August

18, 2023. CR 190 (citing AR at TMB0001213–26), CR 33. That final order is the

final agency decision.

The final order, among other things, bars Dr. Guevara from owning,

operating, acting as an RSO or medical director for, or otherwise being

associated with any imaging program, including any facility where imaging

studies are performed or interpreted. CR 190 (citing AR at TMB0001220–21), CR

40–41. The final order expressly bars Dr. Guevara from affiliation with all

16 categories of imaging practice, including x-rays, sonagrams, CT scans, MRIs,

and all other diagnostic studies, even though none of these imaging practices

were the subject of or adjudicated in the DSHS Case or this case. CR 190 (citing

AR at TMB0001220–21), CR 40–41.

Dr. Guevara filed a motion for rehearing, which the TMB summarily

denied. CR 190 (citing AR at TMB0001212).

IV. The trial court affirmed the improper final agency decision.

Having exhausted his administrative remedies, Dr. Guevara filed suit in

the trial court. CR 4. The trial court signed a final judgment affirming the final

agency decision. CR 379.

Dr. Guevara filed a motion for new trial, which was overruled by

operation of law. CR 385. Dr. Guevara timely appealed. CR 392.

Summary of the Argument

The legislature authorized the TMB to regulate and discipline Texas

physicians in connection with the practice of medicine. Here, however, the TMB

imposed discipline on a physician for conduct wholly unrelated to the practice

of medicine. The trial court erred by ratifying the TMB’s order exceeding the

bounds of its delegated authority.

17 The TMB’s final order is also unsupported by substantial evidence and is

arbitrary, capricious, and unreasonable. The APA requires every agency

decision to be supported by findings of fact that are clear, specific, and non-

conclusory. This is more than a technical prerequisite; fulsome findings of fact

enable citizens to intelligently prepare and present an appeal to the courts and

assist courts in properly exercising their reviewing role.

The TMB stripped Dr. Guevara of a significant piece of his business

without anything more than bald, conclusory statements that he was not diligent

in his medical practice. Those conclusions are particularly incredible given that

all the misconduct alleged concerned Dr. Guevara’s role as a business owner

and RSO—not as a physician. The trial court erred by affirming the TMB’s

unreasonable order without even the benefit of proper findings of fact to support

that order.

Finally, the TMB imposed sweeping, unreasonable sanctions barring Dr.

Guevara from even being affiliated with imaging practices wholly unrelated to

the conduct at issue in this case and in the DSHS Case, both of which exclusively

concerned mammography. The TMB’s sanctions are wholly untethered from

the conduct they purport to redress and are therefore arbitrary, capricious, and

unreasonable.

18 This Court should reverse and vacate the TMB’s final order in its entirety

because it is an abuse of discretion, unsupported by substantial evidence, and

arbitrary and capricious.

Argument

I. Standard of review

The APA governs courts’ review of final agency decisions. See TEX. GOV’T

CODE § 2001.174; Park Haven, Inc. v. Tex. Dep’t of Hum. Servs., 80 S.W.3d 211,

213 (Tex. App.—Austin 2002, no pet.). Under the APA framework, a reviewing

court “shall” reverse a final agency decision if its findings of fact and conclusions

of law are “not reasonably supported by substantial evidence” or “arbitrary or

capricious or characterized by abuse of discretion.” TEX. GOV’T CODE §

2001.174(2)(E), (F); Aleman v. Tex. Med. Bd., 573 S.W.3d 796, 801 (Tex. 2019).

II. The TMB abused its discretion by exceeding the scope of its disciplinary authority under the Medical Practice Act.

A reviewing court must reverse an agency order if the agency abused its

discretion in rendering its findings and conclusions. See Aleman, 573 S.W.3d at

801 (citing TEX. GOV’T CODE § 2001.174(2)(F)). The Supreme Court of Texas

has held the TMB abuses its discretion by disciplining a physician without

statutory authority to do so. See id. at 806. That is what happened here.

19 A. The TMB has authority to regulate the practice of medicine only and nothing more.

The Medical Practice Act grants the TMB “the power to regulate the

practice of medicine.” Id. at 802 (citing TEX. OCC. CODE § 152.001(a)). The Act

defines “practicing medicine” as “the diagnosis, treatment, or offer to treat a

mental or physical disease or disorder or a physical deformity or injury by any

system or method, or the attempt to effect cures of those conditions, by a

[physician].” TEX. OCC. CODE § 151.002(13).

The Act also specifically authorizes the TMB to take disciplinary action

against a physician who engages in statutorily prohibited conduct, including

“unprofessional or dishonorable conduct that is likely to deceive or defraud the

public.” TEX. OCC. CODE § 164.052(a)(5); Aleman, 573 S.W.3d at 802 (citing

TEX. OCC. CODE § 164.051(a)). Section 164.053 of the Act contains a laundry

list of such conduct, including “an act that violates any state or federal law if the

act is connected with the physician’s practice of medicine.” TEX. OCC. CODE §

164.053(a)(1) (emphasis added).

B. The TMB abuses its discretion by exceeding its regulatory mandate.

The Supreme Court of Texas addressed section 164.053(a)(1) in the

seminal Aleman decision. In that case, the TMB disciplined Dr. Aleman for

20 signing a death certificate with a pen in violation of a state law requiring all such

certifications to be signed electronically. Aleman, 573 S.W.3d at 802. Dr.

Aleman did not dispute that he violated the state law but challenged the TMB’s

authority to professionally discipline him for that violation. Id.

Interpreting section 164.053’s laundry list of actions “likely to deceive or

defraud the public,” the supreme court concluded a violation of state or federal

law is subject to disciplinary action by the TMB only if the act is “connected with

the practice of medicine in a manner that makes it likely to deceive or defraud

the public.” Id. at 804.

Based on this reading of the Act, the court held the fact that Dr. Aleman

signed the death certificate in his capacity as the decedent’s physician was not

sufficient to warrant discipline, since even conduct connected with the practice

of medicine is not wrongful unless it performed “in a manner that makes it likely

to deceive or defraud the public.” Id. The court concluded signing a death

certificate with a pen rather than electronically clearly is not likely to deceive or

defraud the public because the manner of signing has no bearing on the accuracy

of the information in the certificate. Id. at 805.

The court also criticized the TMB’s “overly broad interpretation” of its

own authority to impose discipline. Id. To illustrate the absurdity of the TMB’s

21 sweeping view of its own powers, the court posed the following hypothetical:

“[S]uppose a physician were cited for speeding while on the way to the hospital

to deliver a baby. The physician has likely violated a state law . . . [that] is at

least arguably ‘connected with’ his practice of medicine.” Id. at 805–06. But

disciplining such conduct would be inconsistent with both the Act’s language

and its purpose, which does not include conduct “in no way connected with the

practice of medicine in a manner that makes the act likely to deceive or defraud

the public[.]” Id. at 806.

C. The TMB exceeded its authority by disciplining Dr. Guevara for conduct in no way connected with the practice of medicine.

The TMB disciplined Dr. Guevara for three alleged acts the TMB claims

were “likely to deceive or defraud the public”: (1) committing an unlawful act

in connection with the practice of medicine; (2) failing to supervise those under

the physician’s supervision; and (3) delegating professional medical

responsibility or acts to a person the physician knows is not qualified to perform

the responsibility or acts. CR 40 ¶¶ 6–8 (citing TEX. OCC. CODE § 164.053(a)(1),

(8), (9)). The TMB based its final agency decision on the ALJ’s findings and

conclusions. CR 33.

22 Importantly, the ALJ based her findings and conclusions largely on the

findings and conclusions reached in the DSHS Case, reciting them verbatim in

her own proposal for decision. CR 34–37 ¶¶ 8–9. The ALJ concluded the DSHS

findings “have preclusive, collateral estoppel effect against Dr. Guevara in this

case.” CR 40 ¶ 5. But Dr. Guevara was not an individual party to the DSHS Case

and was not personally disciplined for any conduct found in that case. CR 188–

89 (citing AR at TMB0002061–62), CR 120.

Even to the extent Dr. Guevara is bound by the DSHS findings, they

overwhelmingly do not address his conduct. DSHS’s finding of fact 20 is the

only express reference to Dr. Guevara in those findings:

CR 36 ¶ 8 (DSHS FOF 20). This finding is explicitly based on Dr. Guevara’s acts

and omissions as the radiology department’s RSO—not as MAB’s owner or as

a physician practicing medicine. See CR 36 ¶ 8 (DSHS FOF 20).

The ALJ nevertheless recommended that the TMB professionally

discipline Dr. Guevara as a physician based solely upon the conduct found in the

23 DSHS Case. See CR 40 ¶¶ 5–9. The TMB agreed and imposed professional

discipline on Dr. Guevara for his purported acts as the radiology department’s

RSO and as the owner of MAB. CR 40–43.

But as the supreme court made clear in Aleman, the TMB had no authority

to discipline Dr. Guevara for acts unrelated to the practice of medicine. See 573

S.W.3d at 804. Importantly, the mere fact that Dr. Guevara is a physician is

immaterial if the conduct for which he is disciplined is not “connected with the

practice of medicine in a manner that makes it likely to deceive or defraud the

public.” See Aleman, 573 S.W.3d at 804 (emphasis added) (rejecting the TMB’s

contention that certifying a death certificate in his capacity as the decedent’s

physician was a sufficient connection to the physician’s practice of medicine).

The only misconduct found by DSHS that is even arguably attributable to

Dr. Guevara is conduct in his role as RSO for the radiology department and as

owner of MAB. Because none of that conduct is connected with Dr. Guevara’s

practice of medicine, the TMB lacked the statutory power to impose discipline

in this case.

24 i. Dr. Guevara’s conduct as an RSO was not connected with the practice of medicine in a manner likely to deceive or defraud the public.

The ALJ found Dr. Guevara’s failings as the radiology department’s RSO

were likely to deceive or defraud the public “because patients received

mammograms from unqualified staff, performed in a facility with inadequate

quality control and quality assurance, resulting in images of such poor quality

that they were useless as a cancer screening tool.” CR 38 ¶ 21.

As an initial matter, this finding misunderstands the role of an RSO. By

definition, an RSO need not be a physician. See 25 TEX. ADMIN. CODE §

289.252(f) (a person is qualified to be an RSO if he has a high school diploma or

equivalent, completes a basic training course, and has some training or

experience in radiation safety). The RSO position is a strictly technical and

ministerial one that deals exclusively with the use, handling, and storage of

radioactive materials. See id. An RSO does not determine who is qualified to

perform mammograms, nor does he diagnose and treat ailments. See id.; see also

TEX. OCC. CODE § 151.002(13) (defining “practicing medicine”).

The ALJ’s conclusory finding that “Dr. Guevara’s violations of law in his

capacity as RSO for MAB were connected with his practice of medicine in a

25 manner that was likely to deceive or defraud the public” is therefore wholly

untethered from the undisputed facts. CR 39 ¶ 23.

Further, even accepting DSHS’s finding that Dr. Guevara was deficient

as RSO, that deficiency is not connected with the practice of medicine in a

manner likely to deceive or defraud the public. Just like signing a death

certificate with a pen did not deceive or defraud the public as to the certificate’s

contents in Aleman, none of the ALJ’s findings demonstrate Dr. Guevara’s

failings related to the use, handling, or storage of radioactive materials were (1)

connected with his practice of medicine, or (2) likely to deceive or defraud the

public in connection with that practice. See 573 S.W.3d at 805.

ii. Dr. Guevara’s conduct as a business owner was not connected with the practice of medicine in a manner likely to deceive or defraud the public.

Although the ALJ did not expressly find that Dr. Guevara’s alleged

failings as MAB’s owner were likely to deceive or defraud the public in

connection with his practice of medicine, the overall gist of the ALJ’s findings

is that Dr. Guevara was ultimately responsible for MAB’s operations. For

instance, the ALJ found:

26 • “Given his roles as owner of MAB, RSO for the radiology department, and his patients’ referring physician, Dr. Guevara was uniquely positioned to know of the deficiencies in MAB’s radiology department and to understand he was placing his patients at risk by referring them to MAB for mammograms.”

• “Dr. Guevara failed to adequately supervise his employees in MAB’s radiology department. . . .”

• “Dr. Guevara should have known that MAB had hired an unqualified radiology tech (Mr. Lugo). That Dr. Guevara delegated MAB’s hiring decisions to an office manager does not absolve him of responsibility, as owner and physician, for the office manager’s lapses.”

CR 38–39 ¶¶ 22, 24, 25 (emphases added).

MAB is responsible for the failings of its various departments and

employees, and DSHS sanctioned MAB for those failings. CR 189 (citing AR at

TMB0002061–62). But owning the parent company of a medical practice like

MAB is not intrinsically connected with the owner’s practice of medicine. In

fact, one need not even be a physician to own or co-own a medical practice in

all cases. See, e.g., TEX. BUS. ORGS. CODE § 301.012 (allowing, for instance,

physician assistants to obtain minority ownership interests in medical practices).

Further, nothing in the Medical Practice Act or the Administrative Code

provides that all deficiencies of a medical office are automatically imputed to its

owner, even if he or she is a physician. Similarly, an owner of a medical practice

is not automatically liable for a physician’s malpractice. See Baptist Mem’l Hosp.

27 Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998) (holding medical practice is

generally not vicariously liable for the negligence of physicians who, rather than

the practice, have the right to control the means and methods of their own work).

In this case, the DSHS findings demonstrate the radiology department’s

failures that were connected with the practice of medicine were attributable to

Dr. Kapilivsky. See CR 35 ¶ 8 (DSHS FOF 14); CR 194 (citing AR HOM at 60:2–15).

For example, DSHS found:

CR 35 ¶ 8 (DSHS FOF 14, 17). Neither DSHS nor the ALJ in this case found that

Dr. Guevara assumed or asserted any responsibility for those tasks. 1

1 Although Dr. Kapilivsky tried to downplay his supervisory duties, he admitted he gave direct feedback to the technologists regarding image clarity and positioning and did not discuss any issues with particular patients with Dr. Guevara or the radiology department’s office manager. CR 198 (citing AR HOM at 56:6–57:3). Dr. Kapilivsky also acknowledged that Dr. Guevara is not a radiologist, was never trained to read mammography, and never read

28 TMB’s decision to professionally discipline Dr. Guevara for the conduct

underlying the DSHS Case appears to be entirely based on the ALJ’s wholly

conclusory finding that “Dr. Guevara’s medical practice at MAB and MAB’s

radiology department are both part of Dr. Guevara’s professional practice.” CR

38 ¶ 13. But how could radiology be part of Dr. Guevara’s medical practice if it

is undisputed that he did not practice medicine in the radiology department? See

CR 198 (citing AR HOM at 57:16–58:16).

The practical—and potentially far-reaching—impact of the TMB’s

conclusion is that every physician-owner of a multi-department medical practice

is subject to professional discipline for any deficiencies in any department,

regardless of whether the physician actually practiced medicine in that (or any

other) department. This conclusion flies in the face of the “connected with

medical practice” requirement written into the Medical Practice Act and

analyzed by the supreme court in Aleman. If adopted by this Court, the TMB’s

position would greatly and impermissibly expand the TMB’s enforcement

authority far beyond what the legislature envisioned.

films for MAB. CR 198 (citing AR HOM at 57:16–58:16). Assessing imaging quality and supervising technologists was Dr. Kapilivsky’s job. CR 198 (citing AR HOM at 57:16–58:16); see also CR 35 ¶ 8 (DSHS FOF 14).

29 For instance, under the TMB’s interpretation of its own authority, any

passive physician owner of a medical clinic would be subject to professional

discipline for any mistake made by the physicians actually operating that clinic.

Similarly, all the physician owners of a physician-owned hospital would be

subject to professional discipline for a single mistake made by a single physician

practicing anywhere in the hospital system. That would be absurd.

The purpose of sections 164.052 and 164.053 of the Occupations Code is

quintessentially to ensure public safety. See TEX. OCC. CODE § 151.003(1). That

purpose is not to bestow upon TMB the unfettered authority to discipline

physicians even when they are not actually practicing medicine. See id. Because

the TMB lacked statutory authority to impose discipline for violations of

Occupations Code sections 164.051(a)(1), 164.052(a)(5), and 164.053(a)(1), (8),

and (9), it abused its discretion. See Aleman, 573 S.W.3d at 804–06.

III. The TMB’s finding of lack of diligence is not supported by substantial evidence and is therefore arbitrary and capricious.

A reviewing court must reverse an agency order if the agency’s findings,

inferences, conclusions, or decisions are not reasonably supported by substantial

evidence or are arbitrary and capricious. TEX. GOV’T CODE § 2001.174(2)(E),

(F).

30 Because an agency’s findings are presumed to be supported by substantial

evidence, it is essential that they be “‘clear, specific, non-conclusory, and

supporting of the ultimate statutory findings.’” Save Our Springs All., Inc. v.

TCEQ, No. 23-0282, 2025 WL 1085176, at *13 (Tex. Apr. 11, 2025) (slip op.)

(emphasis added) (quoting TEX. GOV’T CODE § 2001.141(b) and Tex. Health

Facilities Comm’n v. Charter-Med.-Dall., Inc., 665 S.W.2d 446, 452 (Tex. 1984)).

“Mere recitals of testimony or references to or summations of the evidence are

improper. . . . The findings should relate to material basic facts and should relate

to the ultimate statutory finding they accompany.” Charter-Med.-Dall., 665

S.W.2d at 452.

This is not merely a “technical prerequisite.” Id. Rather, clear findings of

fact are essential for citizens to understand and appeal to the courts and for

courts to properly exercise their role in reviewing administrative decisions. Id.

(citing Miller v. R.R. Comm’n, 363 S.W.2d 244, 245–46 (Tex. 1962)).

The TMB found Dr. Guevara liable for “fail[ing] to use proper diligence

in one’s professional practice,” which constitutes “fail[ure] to practice in an

acceptable professional manner consistent with public health and welfare.” CR

40 ¶ 9 (citing TEX. OCC. CODE § 164.051(a)(6); 22 TEX. ADMIN. CODE §

190.8(1)(C) (repealed in 2025)).

31 But the ALJ’s findings of fact do not describe—at all—how Dr. Guevara

purportedly failed to use proper diligence in his professional practice.

The “Analysis” section of the ALJ’s proposal for decision (which the

TMB did not adopt in its final agency decision) is similarly unhelpful. See CR 40

(adopting findings of fact and conclusions of law only). Under the heading

“Disciplinary Action for Failure to Use Proper Diligence in One’s Professional

Practice,” the ALJ reasoned that “[g]iven the close relationship between

[MAB’s] departments and considering Dr. Guevara’s roles in and ownership of

both, the ALJ finds that MAB’s radiology department and medical practice can

both be reasonably considered part of Dr. Guevara’s medical practice.” CR 293–

94. The ALJ also stated:

Because DSHS found extensive and systemic problems at MAB . . . this likewise establishes a failure by Dr. Guevara to use reasonable diligence in his professional practice. This constitutes a failure to practice in an acceptable manner consistent with the public health and welfare, for which the Board by [sic] impose disciplinary sanctions.

CR 294 (citing TEX. OCC. CODE § 164.051(a)(6); 22 TEX. ADMIN. CODE §

190.8(1)(C) (repealed in 2025)).

In other words, the ALJ apparently concluded Dr. Guevara failed to use

diligence in his professional medical practice solely because he owns MAB and

32 because MAB was disciplined by DSHS. The TMB adopted this bald conclusion

completely uncritically.

Again, nothing in the Medical Practice Act or the Administrative Code

authorizes the TMB to automatically impute any deficiencies of a medical office

to its physician owner. Accordingly, the TMB’s finding that Dr. Guevara was

not diligent in the practice of medicine is unsupported by substantial evidence

and is therefore arbitrary and capricious.

IV. The TMB’s imposition of penalties is unreasonable, arbitrary, and capricious.

Even where substantial evidence supports an agency’s decision, the

decision may nevertheless be arbitrary and capricious if the agency failed to

consider a factor the legislature directed it to consider, considered an irrelevant

factor, or reached an unreasonable result. Tex. Dep’t of Ins. v. State Farm Lloyds, 260

S.W.3d 233, 246 (Tex. App.—Austin 2008, no pet.); see also McDonnell Douglas

Corp. v. U.S. Dep’t of the Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004)

(recognizing courts “do not defer to the agency’s conclusory or unsupported

suppositions”) (citing Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 (1983)).

The final agency decision in this case restricts Dr. Guevara from owning,

operating, acting as an RSO or medical director for, or being in any way

33 associated with “any imaging program including a program that performs

mammography, and any facility where imaging studies, including . . .

mammography, are performed or interpreted.” CR 40–41 ¶ 1. The TMB also

barred Dr. Guevara from “supervis[ing] or delegat[ing] to any healthcare

personnel engaged in the performance of imaging studies.” CR 41 ¶ 3.

These restrictions are arbitrary, capricious, and unreasonable because they

go far beyond the scope of this matter and even the DSHS Case. Both cases

exclusively concerned MAB’s operational deficiencies in mammography only.

See CR 33–45, CR 120–60. There has never been any allegation or evidence that

any non-mammographic imaging studies performed by MAB were in any way

deficient. Restricting Dr. Guevara’s ability to even be associated with a

radiology department is an arbitrary and capricious restraint on his livelihood

that is wholly untethered from the facts of this case.

By sweepingly restricting Dr. Guevara’s association with and ownership

of MAB’s entire radiology department (as opposed to just mammography), the

TMB is depriving Dr. Guevara of property rights in his own business without

due process of law. Further, by restricting Dr. Guevara from acting as an RSO,

the TMB is encroaching upon DSHS’s exclusive jurisdiction to regulate RSOs—

particularly where DSHS did not impose that penalty in the DSHS Case. See

generally 25 TEX. ADMIN. CODE ch. 289.

34 The TMB’s imposition of penalties is therefore arbitrary, conclusory, and

completely unreasonable, and the Court must set it aside. See McDonnell Douglas

Corp., 375 F.3d at 1187; State Farm Lloyds, 260 S.W.3d at 246.

Conclusion and Prayer

The TMB far exceeded the bounds of its legislatively delegated authority

by imposing professional discipline on a physician for conduct wholly

unconnected with his practice of medicine. The TMB also stripped a business

owner of a substantial portion of his livelihood without substantial evidence and

in an arbitrary, capricious, and unreasonable manner.

The APA is clear—courts shall reverse any agency decision that is an

abuse of discretion, is unsupported by substantial evidence, or is arbitrary,

capricious, or unreasonable. Because the TMB’s final order is all these things,

this Court should reverse and vacate it in its entirety.

35 Dated: June 30, 2025.

Respectfully submitted,

DAVIS & SANTOS, PLLC

By: /s/Hayley Ellison Jason Davis State Bar No. 00793592 E-mail : jdavis@dslawpc.com Hayley Ellison State Bar No. 24074175 E-mail: hellison@dslawpc.com 719 S. Flores Street San Antonio, Texas 78204 Tel: (210) 853-5882 Fax: (210) 200-8395

Attorneys for Appellant

36 Certificate of Compliance

Pursuant to Texas Rule of Appellate Procedure 9.4, I certify that this brief

contains 5,045 words.

/s/Hayley Ellison________________ Hayley Ellison

Certificate of Service

Pursuant to Texas Rule of Appellate Procedure 9.5, I certify that on June

30, 2025, I served a true and correct copy of this document on all parties and

counsel of record via the e-file system:

Kathy Johnson E-mail: Kathy.Johnson@oag.texas.gov Ted Ross E-mail: Ted.Ross@oag.texas.gov OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 Austin, Texas 78711 Tel.: (512) 475-4191 /s/Hayley Ellison________________ Hayley Ellison

37 Tab A 12/30/2024 12:10:14 PM Velva L. Price District Clerk Travis County D-1-GN-23-007371

Page 379 04/25/2025 11:11:16

Page 380 Tab B Page 33 Page 34 Page 35 Page 36 Page 37 Page 38 Page 39 Page 40 Page 41 Page 42 Page 43 Page 44 Page 45 Tab C Aleman v. Texas Medical Board, 573 S.W.3d 796 (2019) 62 Tex. Sup. Ct. J. 1108

Attorneys and Law Firms 573 S.W.3d 796 Supreme Court of Texas. Ronald G. Hole, Hole & Alvarez, L.L.P., McAllen, TX, for Petitioner. Ruben ALEMAN, M.D., Petitioner, v. Ted A. Ross, Brantley David Starr, Jeffrey C. Mateer, TEXAS MEDICAL BOARD, Respondent W. Kenneth Paxton Jr., Office of the Texas Attorney General, James Edward Davis, The University of Texas at No. 17-0385 Austin, Nichole Beth Bunker-Henderson, Assistant Attorney | General, Administrative Law Division, Austin, TX, for Opinion delivered: May 24, 2019 Respondent.

Synopsis Donald P. Wilcox, Kelly M. Walla, Laura Thetford, Texas Background: Physician brought action against county, Medical Association, Austin TX, for Amicus Curiae Texas seeking judicial review of Medical Board order which Medical Association. assessed administrative penalty on physician for failing to electronically certify death certificate. The 53rd Judicial Opinion District Court, Travis County, Stephen Yelenosky, J., 2016 Justice Lehrmann delivered the opinion of the Court, in which WL 8445866, affirmed. Physician appealed. The Austin Chief Justice Hecht, Justice Green, Justice Guzman, and Court of Appeals, 565 S.W.3d 26, affirmed. Physician filed Justice Devine joined, and in which Justice Busby joined petition for review. except as to footnote 9.

In this administrative appeal, we review the Texas Medical Holdings: The Supreme Court, Lehrmann, J., held that: Board's order imposing disciplinary sanctions under the Medical Practice Act against a physician for violating a state complaint was statutorily compliant; law that requires medical certifications for death certificates to be completed electronically. On the physician's petition for Medical Practice Act did not authorize disciplinary action for judicial review, the trial court affirmed the Board's order, and physician's conduct; and the court of appeals likewise affirmed. The physician argues that the Board lacked jurisdiction over the proceedings, that State Office of Administrative Hearings (SOAH) lacked the Medical Practice Act does not authorize disciplinary authority to award attorney fees to physician. action for the conduct at issue, that compliance with the electronic certification requirement was impossible, that the Board's sanction was so severe as to be an abuse of discretion, Affirmed in part, reversed in part, and rendered. and that the physician is entitled to recover attorney's fees. We agree with the physician that disciplinary action was not Blacklock, J., filed concurring opinion in which Brown, J., authorized and thus reverse the court of appeals' judgment in joined. part.

Boyd, J., filed dissenting opinion.

I. Background Procedural Posture(s): Petition for Discretionary Review; On Appeal; Review of Administrative Decision. A. Death Certificates: Statutory Framework *797 ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS The Texas Health and Safety Code places the responsibility of filing a death *798 certificate on the “person in charge of interment or in charge of removal of a body from a registration district for disposition.” TEX. HEALTH & SAFETY CODE § 193.002. With certain inapplicable exceptions, that person

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must “obtain the required medical certification from the July 29. The certificate became “official” on August 8, when it decedent's attending physician ... if the death occurred under was certified by the local registrar. On August 16, Dr. Aleman the care of the [physician] in connection with the treatment submitted an application to register with the TEDR system, of the condition or disease process that contributed to the and his application was approved and took effect three days death.” Id. § 193.005(a). 1 Generally, the Act requires that the later. After registering, Dr. Aleman attempted to certify J.S.'s medical certification be completed no later than five days after death certificate electronically. However, the system would not allow him to do so once the certificate became official. the physician receives the death certificate, id. § 193.005(b), 2 and that the certificate be filed with the appropriate local Almost two years later, on May 3, 2013, the Texas registrar no later than ten days after the death occurs, id. § Medical Board filed a complaint with the State Office of 193.003(a). 3 Administrative Hearings (SOAH) seeking disciplinary action against Dr. Aleman. 5 The complaint, signed and sworn In 2007, the Legislature amended chapter 193, adding a to by a Board staff attorney, alleged that “[r]ather than provision that requires the person completing the medical certifying the patient's death certificate through TEDR as certification to “submit the information and attest to its required, [Dr. Aleman] required the mortuary to provide validity using an electronic process approved by the state him with a paper death certificate,” which he “ultimately registrar.” Act of May 17, 2007, 80th Leg., R.S., ch. 302, signed.” The complaint alleged that, in doing so, Dr. § 2, 2007 Tex. Gen. Laws 577, 577 (codified at TEX. Aleman violated Health and Safety Code sections 193.002(4) HEALTH & SAFETY CODE § 193.005(h)). During the (requiring death certificates to be filed electronically) and time period at issue in this case, the approved electronic 193.005(h) (requiring death certificates to be medically process for preparing and recording death certificates was certified electronically). The complaint further alleged that the Texas Electronic Death Registration system (known as this conduct violated the Medical Practice Act, which TEDR), administered by the Texas Department of State authorizes disciplinary action against a licensed physician for Health Services' Vital Statistics Unit. 4 “commit[ting] unprofessional or dishonorable conduct that is likely to deceive or defraud the public,” including “an act To use the TEDR system, a physician would submit an that violates any state or federal law if the act is connected application to the Department and receive a password from with the physician's practice of medicine.”TEX. OCC. CODE the registrar. When the person required to file a death §§ 164.052(a)(5), .053(a)(1). Finally, the complaint alleged certificate (often a funeral director) prepared his portion of the case involved aggravating factors—increased potential the certificate electronically and entered the medical certifier's for harm to the public and an intentional, premeditated, information, the system automatically notified the certifier knowing, or grossly negligent act—that should be taken into via email that certification was necessary. The certifying consideration in determining sanctions. physician would then log into the system to complete the certification. If the certifier was not registered to use the Dr. Aleman filed a motion to dismiss and plea to the system, the certificate could be “dropped to paper” by the jurisdiction, arguing that the Board lacked subject matter funeral director, meaning it was removed from the system, jurisdiction because the complaint did not comply with the and sent to the physician for completion on paper. In either Medical Practice Act's requirements. See id. § 164.005. The event, the completed certificate was filed with the local administrative law judge (ALJ) denied the motion. The ALJ registrar. also denied both parties' motions for summary disposition as well as Dr. Aleman's motion for sanctions. After a hearing, the ALJ issued a Proposal for Decision containing B. Factual and Procedural Background findings of fact and conclusions of law. The ALJ found that Dr. Aleman did not violate Health and Safety Code J.S., a patient of Dr. Ruben Aleman's, died on July 16, section 193.002(4), which applies only to persons required 2011. The funeral director *799 generated and signed J.S.'s to file death certificates. However, the ALJ concluded that death certificate electronically. However, Dr. Aleman was Dr. Aleman did violate section 193.005(h) by failing to not registered with the TEDR system, so the certificate was complete the medical certification electronically and that his dropped to paper and sent to him for manual certification. Dr. noncompliance “did not result from circumstances beyond his Aleman received and hand-certified the paper certificate on control.” In turn, the ALJ found that, because the violation

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was related to Dr. Aleman's practice of medicine, he “by 389, 394 (Tex. 2009) (explaining that we presume statutory definition” violated the Medical Practice Act. The ALJ further requirements are not jurisdictional absent clear legislative found that no aggravating factors were present in the case. intent to the contrary). We hold that the complaint met the Finally, the ALJ concluded that Dr. Aleman was not entitled statutory requirements and thus need not decide whether those to, nor was SOAH authorized to award, attorney's fees. requirements are jurisdictional.

The Board adopted the ALJ's findings and imposed sanctions. Section 164.005 provides in pertinent part: Specifically, the Board ordered Dr. Aleman to: take and *800 pass the Board's Jurisprudence Examination within (a) In this section, “formal complaint” means a written one year (in no more than three attempts); pay a $ 3,000 statement made by a credible person under oath that is filed administrative penalty; complete sixteen hours of continuing and presented by a board representative charging a person medical education within one year, including eight hours of with having committed an act that, if proven, could affect ethics and eight hours of risk management; and give a copy of the legal rights or privileges of a license holder or other the Board's order to “all hospitals, nursing homes, treatment person under the board's jurisdiction. facilities, and other health care entities” where Dr. Aleman (b) Unless otherwise specified, a proceeding under this has privileges or otherwise practices. subtitle or other applicable law and a charge against a license holder may be instituted by an authorized On Dr. Aleman's petition for judicial review of the Board's representative of the board. order, the trial court affirmed the order in all relevant respects, and the court of appeals affirmed the trial court's judgment. (c) A charge must be in the form of a written affidavit that: 565 S.W.3d 26 (Tex. App.—Austin 2017). The court of appeals held in pertinent part: (1) the Board's complaint (1) is filed with the board's records custodian or assistant complied with all statutory requirements, id. at 31; (2) records custodian; and substantial evidence supported the Board's conclusion that (2) details the nature of the charge as required by this Dr. Aleman violated the Medical Practice Act, id. at 35; subtitle or other applicable law. (3) no legal impossibility excused Dr. Aleman's failure to comply because “the impediment to Aleman's submitting the .... medical certification electronically was of his own making —his failure to register with the TEDR until August 2011,” (f) A formal complaint must allege with reasonable id.; (4) the discipline imposed by the Board was neither in certainty each specific act relied on by the board to excess of its statutory authority nor arbitrary or capricious, constitute a violation of a specific statute or rule. The id. at 36; and (5) the Board did not abuse its discretion in formal complaint must be specific enough to: declining to award Dr. Aleman attorney's fees as sanctions for frivolous pleadings, id. at 37. We granted Dr. Aleman's *801 (1) enable a person of common understanding to petition for review. know what is meant by the formal complaint; and

(2) give the person who is the subject of the formal complaint notice of each particular act alleged to be a II. Discussion violation of a specific statute or rule.

TEX. OCC. CODE § 164.005(a)–(c), (f). Dr. Aleman does A. Sufficiency of Complaint not contend that the complaint provided insufficient detail or notice with respect to the particular acts underlying the Texas Occupations Code section 164.005 prescribes the alleged violations. Rather, he insists that the complaint was procedure for instituting formal administrative proceedings not “in the form of a written affidavit” or “made by a credible against a physician. Dr. Aleman asserts that the formal person under oath” because the Board staff attorney who complaint against him did not comply with the section's signed the complaint lacked personal knowledge of the events requirements, depriving the Board of jurisdiction over this in question. proceeding. The Board responds that the complaint was statutorily compliant and, alternatively, that any defects are not jurisdictional. SeeCity of DeSoto v. White, 288 S.W.3d

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As the court of appeals noted, the Texas Government Code Stewart, 361 S.W.3d 562, 566 (Tex. 2012) (internal quotation defines “affidavit” as “a statement in writing of a fact or facts marks omitted). However, the issue here is not whether Dr. signed by the party making it, sworn to before an officer Aleman did or did not certify electronically—it is undisputed authorized to administer oaths, and officially certified to by that he did not. Rather, the parties dispute whether the Medical the officer under his seal of office.” TEX. GOV'T CODE § Practice Act authorized disciplinary action for that conduct, 312.011(1). The complaint at issue meets this definition: it is presenting an issue of statutory interpretation. in writing, states facts, is signed by the party stating them, and is sworn and notarized. We apply this definition in construing *802 Statutory interpretation involves questions of law that civil statutes “unless a different meaning is apparent from we consider de novo, even when reviewing agency decisions. the context of the statute in which the word appears.” Id. Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage §§ 312.001, .011. But no such different meaning—i.e., one Comm'n, 518 S.W.3d 318, 325 (Tex. 2017). We generally adding a requirement that the complaint be signed by a person “rely on the plain meaning of a statute's words” to discern with personal knowledge—is apparent from the context of legislative intent. Id. In evaluating that language, we construe section 164.005. the words and phrases chosen by the Legislature in context rather than in isolation. Id. at 326. That is, “our objective is not To the contrary, section 164.005(b) provides that, “[u]nless to take definitions and mechanically tack them together,” but otherwise specified, a proceeding under this subtitle or to “consider the context and framework of the entire statute” other applicable law and a charge against a license holder and construe it as a whole. Id. may be instituted by an authorized representative of the board.” TEX. OCC. CODE § 164.005(b). This provision Under the Medical Practice Act, the Board has “the power would make little sense if personal knowledge were required to regulate the practice of medicine.” 6 TEX. OCC. CODE § because board representatives typically will not have such 152.001(a). As part of its authority to enforce the Act, the knowledge of the facts underlying an alleged Medical Practice Board may take disciplinary action against physicians who Act violation. Further, the statute contains no indication engage in certain statutorily prohibited practices. See id. § that a formal complaint is intended to have evidentiary 164.051(a). Among these prohibited practices, enumerated value in the proceedings. By contrast, as the court of in section 164.052, is the commission of “unprofessional appeals recognized, affidavits must affirmatively be “made or dishonorable conduct that is likely to deceive or defraud on personal knowledge” to constitute competent evidence in the public, as provided by Section 164.053, or injure the the summary judgment context. TEX. R. CIV. P. 166a(f). public.” Id.§ 164.052(a)(5). In turn, section 164.053 provides Section 164.005 contains no such express requirement, and a list of acts that, “[f]or purposes of Section 164.052(a)(5), we decline to imply one. Accordingly, we hold that the [constitute] unprofessional or dishonorable conduct likely to complaint against Dr. Aleman complied with the Medical deceive or defraud the public.” Id. § 164.053(a). This list Practice Act. includes “an act that violates any state or federal law if the act is connected with the physician's practice of medicine.” Id. § 164.053(a)(1). B. Authorization for Disciplinary Action Under the Medical Practice Act The Board argues that a physician's certifying a death certificate using pen and paper rather than electronically is a Dr. Aleman next argues that the Board erred in taking violation of state law—specifically, Health and Safety Code disciplinary action against him for failing to complete the section 193.005(h)—and is connected with the physician's medical certification for J.S.'s death certificate electronically. practice of medicine. Thus, the Board concludes, such Under the Administrative Procedure Act, the Board's conduct is subject to disciplinary action. Dr. Aleman responds order may be reversed if its findings and conclusions that, even if he technically violated the electronic certification are “not reasonably supported by substantial evidence” or requirement, section 164.053(a)(1) does not encompass this are “arbitrary or capricious or characterized by abuse of type of conduct, which does not “actually” qualify as discretion.” TEX. GOV'T CODE § 2001.174(2)(E), (F). The unprofessional or dishonorable conduct that could “actually” Board's factual findings are reviewed under a substantial deceive or defraud the public. For the reasons discussed evidence standard, meaning they will be upheld if “more than below, we hold that the Medical Practice Act did not authorize a mere scintilla” of evidence supports them. City of Dallas v. the Board to take disciplinary action against Dr. Aleman.

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The Board is correct that, in light of the Health and Safety (B) controlled substances scheduled in the Code's electronic certification requirement, Dr. Aleman Comprehensive Drug Abuse Prevention and Control necessarily violated state law by certifying J.S.'s death Act of 1970 (21 U.S.C. Section 801 et seq.); certificate manually, regardless of his knowledge of the (3) writes prescriptions for or dispenses to a person who: law's existence. But such conduct was subject to disciplinary action under the Act only if “connected with” the practice of (A) is known to be an abuser of narcotic drugs, medicine. The question thus arises: what kind of connection controlled substances, or dangerous drugs; or is required between the conduct at issue and the practice of medicine? (B) the physician should have known was an abuser of narcotic drugs, controlled substances, or dangerous Typically, when applying statutes requiring a connection drugs; between two things, our analysis hinges on how direct that (4) writes false or fictitious prescriptions for: connection must be. SeeExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 900 (Tex. 2017) (analyzing whether (A) dangerous drugs as defined by Chapter 483, communications were made “in connection with” a matter of Health and Safety Code [i.e., drugs that are unsafe public concern under the Texas Citizens Participation Act, for self-medication but are not included on the list of and rejecting the court of appeals' determination that more controlled substances]; or than a “tangential relationship” is required to trigger the Act); Collingsworth Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706, 709 (B) controlled substances scheduled in Chapter 481, (Tex. 1998) (examining whether a hospital employee who Health and Safety Code, or the Comprehensive Drug was fired for committing *803 an assault while off duty Abuse Prevention and Control Act of 1970 (21 U.S.C. had nevertheless been terminated for misconduct “connected Section 801 et seq.); with” her work, rendering her ineligible for unemployment benefits). However, in this case, the Medical Practice Act (5) prescribes or administers a drug or treatment that is further delimits the scope of the required connection by nontherapeutic in nature or nontherapeutic in the manner grouping the conduct described in section 164.053(a)(1) with the drug or treatment is administered or prescribed; a list of behavior that is sanctionable as “unprofessional or (6) prescribes, administers, or dispenses in a manner dishonorable conduct that is likely to deceive or defraud the inconsistent with public health and welfare: public.” TEX. OCC. CODE §§ 164.052(a)(5), .053(a). (A) dangerous drugs as defined by Chapter 483, 7 By classifying the prohibited conduct in this way, the Health and Safety Code; or Legislature demonstrated its intent to authorize discipline for certain acts that fall within that category. Examining the list (B) controlled substances scheduled in Chapter 481, of qualifying conduct in its entirety furthers this conclusion: Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. (a) For purposes of Section 164.052(a)(5), unprofessional Section 801 et seq.); or dishonorable conduct likely to deceive or defraud the public includes conduct in which a physician: (7) violates Section 311.0025, Health and Safety Code [which prohibits billing for a treatment that the provider (1) commits an act that violates any state or federal law *804 knows was not provided or was improper, if the act is connected with the physician's practice of unreasonable, or medically or clinically unnecessary]; medicine; (8) fails to supervise adequately the activities of those (2) fails to keep complete and accurate records of acting under the supervision of the physician; or purchases and disposals of: (9) delegates professional medical responsibility or (A) drugs listed in Chapter 481, Health and Safety acts to a person if the delegating physician knows or Code [controlled substances]; or has reason to know that the person is not qualified

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by training, experience, or licensure to perform the Indeed, by providing a finite list of acts in section 164.053 responsibility or acts. that constitute “unprofessional or dishonorable conduct likely to deceive or defraud the public” for purposes of section Id. § 164.053(a). 164.052(a)(5), the Legislature chose to allow sanctions for some acts that fall within this overarching description but It is easy to see how the specific conduct described not others. Section 164.053 thus narrows the category's in subsections (a)(2) through (a)(9)—keeping inadequate scope. But under the Board's reading, subsection (a)(1) records of controlled substances, prescribing drugs to those simultaneously broadens that scope by incorporating conduct known to be drug abusers, writing false or fictitious that goes beyond the category's unambiguous parameters. prescriptions for certain drugs, prescribing or administering This reading is both internally inconsistent and, again, ignores controlled substances and dangerous drugs in a manner the Legislature's choice to categorize the conduct in the first inconsistent with public health and welfare, billing for instance. unperformed or medically unnecessary treatments, failing to adequately supervise, and delegating medical responsibilities Applying sections 164.052 and 164.053 to the facts at to unqualified persons—falls under the umbrella of hand, Dr. Aleman's conduct—medically certifying a death “unprofessional or dishonorable conduct likely to deceive or certificate using pen and paper rather than the approved defraud the public.” 8 The conduct referenced in subsection electronic system—clearly does not qualify as an act that is (a)(1) is less precise, but it is nevertheless intended to fall connected with the practice of medicine in a manner likely to within the same classification; otherwise, categorizing the deceive or defraud the public. Regardless of the method used conduct at all serves no purpose. to complete the medical certification process, the information required is the same, the statutory deadlines are the same, and We therefore hold that an act that violates state or federal the certificate's destination—filing with the local registrar— law is subject to disciplinary action by the Board under is the same. 10 See id. § 193.003. The effect on the public is the Medical Practice Act only if the act is connected likewise the same. By contrast, certainly a physician's failure with the practice of medicine in a manner that makes it to provide accurate information on a death certificate could likely to deceive or defraud the public. In turn, we reject be classified as connected with the practice of medicine in the Board's contention that a sufficient connection exists a manner “likely to deceive or defraud the public,” as it solely by virtue of the fact that Dr. Aleman certified the would amount to the inclusion of false information in a legally death certificate in his capacity as J.S.'s physician. SeeTEX. significant public document. HEALTH & SAFETY CODE § 193.005(a) (explaining when the medical certification should be obtained from The Board insists that the electronic certification requirement the decedent's attending physician). Construing the scope serves an important public purpose by promoting the prompt of the required connection as broadly as the Board issuance of death certificates, thereby reducing delays in suggests contravenes fundamental interpretation principles various postmortem legal proceedings. That may very well by favoring microscopic examination of isolated words over be, but if anything it proves the point. Requiring electronic consideration of the statute as a whole. 9 It also requires certification may address inefficiencies in the process, but it the phrase “likely to deceive or defraud the public” to in no way addresses fraud or deception. 11 And we fail to be effectively read out of the statute entirely, violating see how disciplining a physician for failing to comply with another basic tenet of statutory construction. Contrary that requirement comports with the express policy behind to the Board's assertion, there is no indication that the the Act: “to protect the public interest” by “regulat[ing] Legislature intended to authorize disciplinary *805 action the granting of [the] privilege [of practicing medicine] under sections 164.052(a)(5) and 164.053 for conduct that is and its subsequent use and control.” TEX. OCC. CODE not in fact “likely to deceive or defraud the public.” That is, in § 151.003(1); see alsoSanchez v. Tex. State Bd. of Med. identifying qualifying behavior, the Legislature did not alter Exam'rs, 229 S.W.3d 498, 514 (Tex. App.—Austin 2007, no the meaning of the phrase “unprofessional or dishonorable pet.) (noting that “section 164.052 reflects a broader intent conduct likely to deceive or defraud the public” to include to prevent unqualified or otherwise unfit individuals from conduct that is not likely to do either. practicing medicine”).

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Further, potential fact patterns readily come to mind that Bd. of San Antonio, 53 S.W.3d 310, 316 (Tex. 2001). only heighten the concerns associated with the Board's overly Section 2003.0421(a) of the Administrative Procedure Act broad interpretation. For example, suppose *806 a physician generally authorizes an ALJ employed by SOAH to “impose were cited for speeding while on the way to the hospital appropriate sanctions as provided by Subsection (b) against to deliver a baby. The physician has likely violated a state a party or its representative” for filing a pleading that is law, seeTEX. TRANSP. CODE §§ 545.351–.352, and under groundless and brought in bad faith or for an improper the Board's interpretation the physician's “act” is at least purpose. *807 TEX. GOV'T CODE § 2003.0421(a)(1). arguably “connected with” his practice of medicine. Again, Subsection (b) then provides: however, disciplining such conduct is not consistent with either the Act's language—properly construed as a whole— (b) A sanction imposed under Subsection (a) may include, or its purpose. Rather, the statute reflects legislative intent not as appropriate and justified, issuance of an order: to allow such conduct, which is in no way connected with the (1) disallowing further discovery of any kind or of a practice of medicine in a manner that makes the act likely to particular kind by the offending party; deceive or defraud the public, to be the proper subject of a disciplinary proceeding. 12 (2) charging all or any part of the expenses of discovery against the offending party or its representatives; Accordingly, we hold that a physician's act of completing the medical certification for a death certificate manually (3) holding that designated facts be considered admitted rather than by using the approved electronic process does not for purposes of the proceeding; constitute a “prohibited practice” under section 164.052 of (4) refusing to allow the offending party to support or the Medical Practice Act, and section 164.051 in turn does oppose a designated claim or defense or prohibiting the not authorize the Board to take disciplinary action against party from introducing designated matters in evidence; a person for such conduct. Because the Board relied on an erroneous interpretation of the Medical Practice Act to (5) disallowing in whole or in part requests for relief by discipline Dr. Aleman, it necessarily abused its discretion in the offending party and excluding evidence in support of doing so. We therefore reverse the court of appeals' judgment those requests; and to the extent it upholds the portions of the Board's order (1) concluding that Dr. Aleman violated the Medical Practice Act (6) striking pleadings or testimony, or both, in whole or in part. and (2) imposing sanctions against him. 13 Id. § 2003.0421(b). The authorized sanctions do not include issuance of an order awarding attorney's fees. C. Attorney's Fees By contrast, a similar provision of the Administrative Finally, Dr. Aleman argues that the ALJ abused its discretion Procedure Act authorizing SOAH to impose sanctions in in failing to award him attorney's fees as sanctions under contested cases involving the Public Utility Commission Texas Civil Practice and Remedies Code chapter 10 and Texas expressly includes as a permissible sanction “an order ... Rule of Civil Procedure 13. Dr. Aleman contends that some requiring the offending party or its representative to pay ... of the allegations against him in the formal complaint— the reasonable expenses, including attorney's fees, incurred specifically, that he violated Health and Safety Code section by other parties because of the sanctionable behavior.” 193.002(4) and that aggravating factors warranted more Id. § 2003.049(j)(7). This provision demonstrates that the severe discipline—were groundless and brought in bad faith, Legislature has chosen to grant SOAH authority to award justifying an award of attorney's fees as sanctions. The Board attorney's fees in certain circumstances, but not in the context concluded that SOAH was not authorized to award attorney's of a disciplinary proceeding against a licensed physician. fees in this proceeding, and we agree. Dr. Aleman thus relies on Civil Practice and Remedies As a state agency, SOAH has those powers the Legislature Code chapter 10 and Texas Rule of Civil Procedure 13, expressly confers, along with “whatever powers are which “allow a trial court to sanction an attorney or a reasonably necessary to fulfill its express functions or party for filing motions or pleadings that lack a reasonable duties.” Pub. Util. Comm'n of Tex. v. City Pub. Serv.

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basis in fact or law.” Low v. Henry, 221 S.W.3d 609, 614 (1) commits an act that violates any state or federal law if the (Tex. 2007). Sanctions imposed under these provisions may act is connected with the physician's practice of medicine.” include attorney's fees. TEX. CIV. PRAC. & REM. CODE § 10.004(c)(3); TEX. R. CIV. P. 13, 215.2(b)(8). But as the In the Medical Board's view, any violation of any state Attorney General of Texas has opined, chapter 10 and rule or federal law—no matter how mundane or innocuous— 13 apply to courts, not administrative agencies. Tex. Att'y has been designated by the legislature as “unprofessional or Gen. Op. No. JC-0495 (2002) (citing State v. Flag-Redfern Oil dishonorable conduct likely to deceive or defraud the public.” Co., 852 S.W.2d 480, 486 n.7 (Tex. 1993) (explaining that an TEX. OCC. CODE § 164.053(a). In the Court's view, the “administrative agency is not a ‘court’ and its contested case Board's reading errs by “favoring microscopic examination proceedings are not lawsuits”)). And Dr. Aleman references of isolated words over consideration of the statute as a no statutory authority directing these provisions to be applied whole.” Ante at 804. The dissent correctly points out that to SOAH in this type of proceeding. Accordingly, the Board there is nothing wrong with “microscopic examination of correctly held that Dr. Aleman is not entitled to recover isolated words” when those words are a legislatively supplied attorney's fees. definition of a term. In the dissent's view, the Court's reasoning boils down to the assertion that “the statute simply cannot mean what it expressly says.” Infra at 814. Yet our job is to apply statutes based on what they expressly say, not III. Conclusion what we think they should say. BankDirect Capital Fin., LLC We hold that (1) the Board had jurisdiction over this v. Plasma Fab, LLC, 519 S.W.3d 76, 78 (Tex. 2017) (“[T]he proceeding, (2) the Board abused its discretion in finding that foremost task of legal interpretation [is] divining what the law Dr. Aleman violated the Medical Practice Act, and (3) Dr. is, not what the interpreter wishes it to be.”). Aleman is not entitled to attorney's fees. Accordingly, we affirm the court of appeals' judgment in part, reverse it in part, At the risk of engaging in “microscopic examination of and render judgment vacating the sanctions imposed against isolated words,” in my view a careful reading of section Dr. Aleman. 164.053(a)(1) reveals that the Board has oversimplified the statute in a way that eliminates important words of limitation. Contrary to the Board's position, section 164.053(a)(1) is not triggered any time a physician “violates any state or Justice Blacklock filed a concurring opinion, in which Justice federal law.” It is only triggered when a physician “commits Brown joined. an act that violates any state or federal law.” TEX. OCC. Justice Boyd filed a dissenting opinion. CODE § 164.053(a)(1) (emphasis added). Under the Board's approach, the statute would operate exactly the same way Justice Blacklock, joined by Justice Brown, concurring. whether or not it contained the words “commits an act that.” I agree with the Court that a physician who signs a death But we should disfavor any reading that renders these words certificate with a pen does not “commit[ ] unprofessional superfluous. Pedernal Energy, LLC v. Bruington Eng'g, Ltd., or dishonorable *808 conduct that is likely to deceive or 536 S.W.3d 487, 491 (Tex. 2017); TGS-NOPEC Geophysical defraud the public.” TEX. OCC. CODE § 164.052(a)(5). Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (“[E]ach I write separately to explain my reasons for reaching that word [is] chosen for a purpose ....”). In this case, giving conclusion, which differ from the Court's. these words operative meaning poses no challenge. Their meaning is plain. By placing the words “commits an act that” Section 164.051(a)(1) of the Occupations Code authorizes in front of “violates any state or federal law,” the legislature the Medical Board to discipline a person who “commits an invoked the familiar distinction between acts and omissions. act prohibited under Section 164.052.” Section 164.052(a) CompareTEX. PENAL CODE § 1.07(a)(1) (“ ‘Act’ means (5), in turn, prohibits “commit[ting] unprofessional or a bodily movement, whether voluntary or involuntary, and dishonorable conduct that is likely to deceive or defraud includes speech.”), withid. § 1.07(a)(34) (“ ‘Omission’ means the public, as provided by Section 164.053.” Finally, section failure to act.”); see alsoid. § 6.01(a) (conditioning the 164.053(a)(1) provides: “For purposes of Section 164.052(a) existence of an offense on a voluntary “act” or “omission”). (5), unprofessional or dishonorable conduct likely to deceive Instead of predicating the Board's enforcement authority on or defraud the public includes conduct in which a physician: the existence of any legal violation, the legislature made

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it dependent on the affirmative commission of an act that when he “admittedly failed to sign the [certificate of death] violates the law. If the legislature had wanted any violation electronically.” Resp't's Br. on the Merits 5 (emphasis added). of law to qualify as “unprofessional or dishonorable conduct The SOAH hearing officer stated in the Final Order that likely to deceive or defraud the public,” it could have “Dr. Aleman violated Texas Health and Safety Code § dispensed with the words “commits an act *809 that.” TEX. 193.005(h) by failing to certify the death certificate for J.S. OCC. CODE § 164.053(a)(1). Indeed, that is exactly what electronically.” Ruben Aleman, M.D., SOAH Docket No. it did in section 164.053(a)(7), which is triggered any time XXX-XX-XXXX.MD (Tex. Med. Bd. June 27, 2014) (emphasis a physician “violates Section 311.0025, Health and Safety added). The failure to sign is not an act. The failure to certify Code.” is not an act. They are omissions. The Board's complaint is that section 193.005(h) imposes an affirmative duty on Dr. We should apply the statute's words whether they make Aleman, who failed to discharge it. Even as described by the perfect sense to us or not. Centerpoint Builders GP v. Board and the hearing officer, Dr. Aleman's legal error was Trussway, Ltd., 496 S.W.3d 33, 36 (Tex. 2016) (“[W]e one of omission, not of commission. Dr. Aleman admits he may not omit or gloss over verbiage in an attempt to violated the statute, but that does not mean he “committed an reclaim clarity.”). But in this context, the legislature's act that violated” it. invocation of the act-omission distinction actually seems quite sensible. The ancient common-law origins of the act- The only act Dr. Aleman committed was signing the death omission distinction derive in part from the concept of the certificate with a pen. But section 193.005(h) does not actus reus, under which crimes at common law required proof prohibit that act. Again, it states: “The person completing of an overt act as opposed to a failure to act. 4 WILLIAM the medical certification shall submit the information and BLACKSTONE, COMMENTARIES *21 (“[A] vicious will attest to its validity using an electronic process approved without a vicious act is no civil crime .... So that to constitute by the state registrar.” It says nothing one way or another a crime against human laws, there must be, first, a vicious about the legality of hand-signing a certificate that has been will; and, secondly, an unlawful act consequent upon such “dropped to paper” and thereby removed from the state vicious will.”). The act-omission distinction in criminal law, registrar's electronic system. The statute does not make it under which overt criminal acts traditionally were thought illegal to hand-sign and then later electronically certify, as Dr. more blameworthy than omissions, may not be as strong Aleman attempted to do. The *810 statute does not prohibit now as it was in Blackstone's time. But it retains force any action whatsoever with respect to a “dropped to paper” today, at least enough for the legislature to invoke it in certificate. As far as section 193.005(h) is concerned, Dr. section 163.054(a)(1). Punishing overt acts that violate the Aleman could have hand-signed it, thrown it in the trash, or law is one thing. Punishing failures to act—particularly in made a paper airplane out of it. No matter what happened a profession where countless complicated federal and state to the paper certificate, Dr. Aleman's only obligation under regulations impose an unfathomable array of legal duties— section 193.005(h) is to “submit the information and attest to is quite another. The statute's distinction between illegal acts its validity using an electronic process approved by the state and illegal omissions does not draw a perfect line between registrar.” deceptive legal violations and innocuous ones, as the majority attempts to do. But it does draw a line, and we should enforce It might be argued that because hand-signing and it. electronically certifying are mutually exclusive methods, the act of hand-signing violates the duty to electronically certify. In my view, section 164.053(a)(1) does not encompass the But the statute itself does not make the two options mutually Board's allegations against Dr. Aleman, which stem from his exclusive. Only after consulting the jumbled innards of the unlawful failures to act, not from unlawful actions. Section “electronic process approved by the state registrar” could 193.005(h), the statute Dr. Aleman admittedly violated, one know that, under the registrar-approved process, hand- states: “The person completing the medical certification shall signing and electronic certification happen to be mutually submit the information and attest to its validity using an exclusive. But the “electronic process approved by the state electronic process approved by the state registrar.” TEX. registrar” is not “the law,” so hand-signing in violation HEALTH & SAFETY CODE § 193.005(h). According of it does not trigger section 164.053(a)(1). 1 And even to the Medical Board, Dr. Aleman's conduct falls within if the “electronic process” were the law, the act of hand- section 164.053(a)(1) because he violated section 193.005(h) signing a certificate still would not violate the statutory duty

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to electronically certify. Under the state registrar-approved does not destroy, it prevents birth; it does not tyrannize, process, the option to hand-sign a paper certificate only arises it hinders, it represses, it enervates, it extinguishes, it after it has become impossible to electronically certify it. stupefies, and finally it reduces each nation to being Once the certificate was “dropped to paper,” hand-signing nothing more than a flock of timid and industrious animals, versus electronically signing was not an either/or proposition of which the government is the shepherd. for Dr. Aleman. His options were to hand sign it or not hand sign it. Whether he took the overt act of signing the ALEXIS DE TOCQUEVILLE, DEMOCRACY IN paper certificate or not, at that point he could not certify it AMERICA: HISTORICAL-CRITICAL EDITION 1252 electronically in compliance with section 193.005(h). (Eduardo Nolla ed., James T. Schleifer trans., Liberty Fund 2010). What made Dr. Aleman's violation of section 193.005(h) inevitable—and where the Board says he really went wrong Whether Tocqueville's darkly eloquent prophecy accurately —was his failure to register for the electronic certification describes modern America is in the eye of the beholder. Yet system. Ultimately, the Board's objection to Dr. Aleman's in at least one respect, his dystopic vision was undeniably conduct is not that he hand-signed the certificate instead of prescient. More and more all the time, we live under a legal electronically certifying it. Once the certificate was “dropped regime that “covers the surface of society with a network of small, complicated, minute, and uniform rules.” Id. The to paper,” he had no choice between the two methods. 2 In total number of laws and regulations is staggering. The the end, the crux of the Board's objection is that the certificate Code of Federal Regulations is nearly 190,000 pages long, had to be dropped to paper because Dr. Aleman was not and it grows constantly. CLYDE WAYNE CREWS, JR., registered with the electronic system. But the law contains TEN THOUSAND COMMANDMENTS: AN ANNUAL no requirement that he register. And even if it did, by failing SNAPSHOT OF THE FEDERAL REGULATORY STATE to *811 register he did not “commit[ ] an act that violates 14 (2018). Since 1993, federal agencies have issued more than any state or federal law.” TEX. OCC. CODE § 164.053(a)(1) 101,380 rules. Id. at 4. “And no one seems sure how many (emphasis added). more hundreds of thousands (or maybe millions) of pages of less formal or ‘sub-regulatory’ policy manuals, directives, The bottom line is that the Board is not prosecuting Dr. and the like might be found floating around these days.” Aleman for what he did. It is prosecuting him for what he Caring Hearts Pers. Home Servs., Inc. v. Burwell, 824 F.3d should have done. Under the Board's theory of this case, 968, 969 (10th Cir. 2016) (Gorsuch, J.). Even as far back as the legal violation to which Dr. Aleman admitted and for 1982, the Justice Department tried to count the total number which he is being prosecuted is the failure to electronically of federal criminal laws but concluded that doing so with certify a death certificate. Dr. Aleman may have violated precision was futile. Gary Fields & John R. Emshwiller, Many the law by failing to certify electronically, but he did not Failed Efforts to Count Nation's Federal Criminal Laws, thereby “commit[ ] an act that violates” the law. Under WALL ST. J., (July 23, 2011), https://on.wsj.com/2oKFAiM. the text of section 164.053, his unlawful omission does In Texas law, there are over 43,000 regulations in the not automatically qualify as “unprofessional or dishonorable Administrative Code and over 4,000 chapters of statutory conduct likely to deceive or defraud the public.” The Board code, each of which contain dozens or even hundreds of lacks authority to prosecute him for it. I concur in the Court's sections. We can only guess at the total number of duties the judgment vacating the sanctions against Dr. Aleman. law imposes on us. Like the grains of sand in a jar, their *** number seems beyond our capacity to count.

After having thus taken each individual one by one into its According to the Medical Board, the Texas Legislature powerful hands, and having molded him as it pleases, the designated any violation of any of the countless state sovereign power extends its arms over the entire society; or federal *812 statutory or regulatory legal obligations it covers the surface of society with a network of small, as “unprofessional or dishonorable conduct that is likely complicated, minute, and uniform rules, which the most to deceive or defraud the public.” TEX. OCC. CODE § original minds and the most vigorous souls cannot break 164.052(a)(5). If that is really the law, then perhaps reality is through to go beyond the crowd; it does not break wills, stranger than Tocqueville feared. Living under a network of but it softens them, bends them and directs them; it rarely complicated and minute rules may be our lot. Living under forces action, but it constantly opposes your acting; it a regime that considers every violation of its complicated

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and minute rules to be morally blameworthy—deceptive, fraudulent, and dishonorable—would be quite another thing. But this Court does not. Purporting to “consider the context But that is not out fate. We remain free citizens endowed with and framework of the entire statute” and “construe it as a moral discernment apart from the dictates of the law. Free whole” to “discern legislative intent,” ante at 802 (quoting people can tell the difference between laws that justly prohibit Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage harmful conduct based on our shared sense of right and Comm'n, 518 S.W.3d 318, 325 (Tex. 2017)), the Court holds wrong and laws that outlaw otherwise innocuous behavior that the Board may discipline a doctor who commits an illegal in pursuit of the government's innumerable regulatory goals. act connected with the practice of medicine “only if the act The notion that the Texas Legislature considers every minute is connected with the practice of medicine in a manner that violation of the myriad regulations under which doctors makes it likely to deceive or defraud the public.” Ante at 804. practice to be deceptive, fraudulent, and dishonorable conduct obviously strikes the majority of this Court as absurd. That is Instead of “construing” the statute to divine some fictional encouraging. “legislative intent,” 1 I would just apply the statute's plain and unambiguous language. The statute says the The ancient distinction between malum in se and malum Board may discipline a doctor who “commits an act prohibitum has deep roots in our legal tradition. 3 If we lose prohibited under Section 164.052.” TEX. OCC. CODE § our sense of that distinction—between lawbreaking that is 164.051(a)(1) (emphasis added). Under section 164.052, a wrong in itself and lawbreaking that is wrong only because physician commits a prohibited act if the person “commits the government happens to have made it illegal—we are unprofessional or dishonorable conduct that is likely to well on our way to becoming “nothing more than a flock of deceive or defraud the public, as provided by Section timid and industrious animals, of which the government is the 164.053.” Id.§ 164.052(a)(5) (emphasis added). And section shepherd.” 164.053 “provides” that, for “purposes of Section 164.052(a) (5), unprofessional or dishonorable conduct likely to deceive or defraud the public includes conduct in which a physician ... commits an act that violates any state or federal law if the act Justice Boyd, dissenting. is connected with the physician's practice of medicine.” Id.§ In 2007, the legislature passed a statute requiring medical 164.053(a)(1) (emphases added). professionals to certify their patients' death certificates electronically instead of on paper. SeeTEX. HEALTH & SAFETY CODE § 193.005(h). To allow physicians ample At the risk of proving F. Scott Fitzgerald's point, 2 I (at least time to register for and transition to this new system, the keeping good company with the administrative law judge, the Medical Board declined to enforce the requirement for four- Board, the trial court, and the unanimous court of appeals) and-a-half years. The Board sent mass mailings notifying find all this pretty simple: physicians of the new requirement and then notified them • the Board can discipline a doctor who commits again when the grace period expired. Despite the statute unprofessional or dishonorable conduct that is likely to and the notices, Dr. Ruben Aleman never registered to use deceive or defraud the public; the electronic-certification system during the extended grace period. One month after the grace period ended, he certified • such conduct “includes” an illegal act connected with the a patient's death certificate on paper. In response, the Board practice of medicine; and initiated a disciplinary action against Dr. Aleman for violating the law in connection with the practice of medicine. • Dr. Aleman committed an illegal act connected with the practice of medicine; so It was a slam-dunk case. Dr. Aleman does not dispute that he certified the death certificate on paper rather than • the Board can discipline Dr. Aleman. electronically. Predictably, the administrative law judge found When the statute expressly classifies particular conduct as that Dr. Aleman's failure to electronically certify the death “unprofessional or dishonorable conduct likely to deceive certificate was a prohibited practice for which he was subject or defraud the public,” the Court's disagreement with that to discipline. The Board, the trial court, and the court of classification is irrelevant. As we have said time and again, appeals unanimously *813 agreed. Aleman v. Tex. Med. Bd., “when a statute provides a definition for or uses a *814 word 565 S.W.3d 26, 28 (Tex. App.—Austin 2017).

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or phrase in a particular manner, then courts must apply that The Court concludes that the statute's reference to illegal acts definition or manner of use when interpreting the statute.” connected with the practice of medicine must refer only to PlainsCapital Bank v. Martin, 459 S.W.3d 550, 556 (Tex. such acts that are connected with the practice of medicine “in 2015) (emphasis added). 3 a manner that makes [them] likely” deceptive or fraudulent, because all the other items in the list fit that description. Purporting to construe the statute “as a whole” instead of Ante at 804–06. To begin with, that characterization simply “favoring microscopic examination of isolated words,” the isn't true: failing to adequately supervise a subordinate is not Court concludes that the statute simply cannot mean what it necessarily likely to deceive or defraud the public, seeTEX. expressly says. Ante at 804. Specifically, the Court concludes OCC. CODE § 164.053(a)(8), nor is writing a prescription that conduct that qualifies as conduct “likely to deceive or for a known narcotic abuser or prescribing a nontherapeutic defraud the public” does not in fact “include” the conduct treatment, seeid. §§ 164.053(a)(3), (5). Under the Court's the statute says it includes, but instead includes such conduct construction, the Board could discipline a doctor for engaging only if it is in fact likely to deceive or defraud the public. in any of the listed conduct only if the Board demonstrates Ante at 804–05. But it “is very rare that a defined meaning that the doctor's particular actions were likely to deceive or can be replaced with another permissible meaning of the defraud the public. The statute, however, imposes no such word on the basis of other textual indications; the definition requirement. is virtually conclusive.” ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF But beyond that, the Court misapplies the noscitur a sociis LEGAL TEXTS 228 (2012) [hereinafter READING LAW]. canon by focusing on the narrowest possible commonality And we need not microscopically examine any isolated words among the listed items. When the canon applies, the “common to conclude that conduct for which the Board may discipline a quality” among the items listed “should be its most general doctor “includes” illegal conduct connected with the practice quality—the least common denominator, so to speak— of medicine. Because the statute expressly says it does, relevant to the context.” READING LAW at 196 (emphases the Court's contrary conclusion is simply “disloyal to [the] added). To use the Court's example, see ante at 805, the canon enacted text.” Youngkin, 546 S.W.3d at 681. might justify construing the statute's reference to illegal acts “connected with the practice of medicine” to not include a As additional support for its holding, the Court asserts that the doctor's speeding on the way to the hospital, because the “finite list of acts” under section 164.053(a) narrows the scope types of acts listed share the “general quality” of improper of conduct that qualifies as “unprofessional or dishonorable acts performed as a physician, not as a driver. But whether conduct likely to deceive or defraud the public” under section that's true or not, no one disputes that Dr. Aleman's failure to 164.052(a)(5). Ante at 805. It reasons that the Board's reading certify the death certificate electronically was improper and of section 164.053(a)(1) “broadens that scope” and thus connected with the practice of medicine and, in that sense, it “ignores the Legislature's choice to categorize the conduct in fits squarely within the “general quality” the other listed items the first instance.” Ante at 804. *815 This reasoning fails for share. two independent reasons. Second, and more concerning, the Court's reasoning First, it misapplies the noscitur a sociis canon on which it ignores—and effectively deletes—the statute's unambiguous relies sub silentio. This canon “directs that similar terms be language. According to the Court, the statute's reference interpreted in a similar manner.” TGS-NOPEC, 340 S.W.3d to illegal acts connected with the practice of medicine at 441. More specifically, when words “are associated in a must refer only to such acts that are “connected with context suggesting that the words have something in common, the practice of medicine in a manner that makes [them] they should be assigned a permissible meaning that makes likely to deceive or defraud the public” because, “otherwise, them similar.” READING LAW at 195. Specific items within categorizing the conduct at all serves no purpose.” Ante at a list may limit the meaning of a more general term within ––––. To the contrary, by “categorizing” actionable conduct the same list “to a subset of all the things or actions that [the as all unprofessional or dishonorable acts likely to deceive more general term] covers—but only according to its ordinary or defraud the public, and then defining that category to meaning.” Id. at 196. include a non-exclusive list of specific types of conduct, the statute confirms that the category includes both the listed conduct and all other unspecified conduct that fits

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 12 Aleman v. Texas Medical Board, 573 S.W.3d 796 (2019) 62 Tex. Sup. Ct. J. 1108

the description is simply meaningless. But by providing the within the broad category. In other words, by stating that the list of “included” conduct, the statute provides that all such generally described conduct “includes” the listed conduct, the “included” conduct is actionable even if we think it doesn't statute does not create a “finite list of acts” at all. SeeTEX. clearly fit the description. GOV'T CODE § 311.005(13) (“ ‘Includes’ and ‘including’ are terms of enlargement and not of limitation *816 or Contrary to the Court's reasoning, the correct approach is exclusive enumeration, and use of the terms does not create a to recognize that, by describing a general category and then presumption that components not expressed are excluded.”). listing specific conduct “included” within that category, the statute makes “doubly sure that the broad (and intended-to- That one listed item does not seem to us to fit neatly within be-broad) general term is taken to include the specifics.” the general category's description does not grant us license READING LAW at 204 (noting that some statutes, like the to remove or revise that item. We have no authority “to one at issue here, “provide this belt-and-suspenders function rewrite the statute so that it covers only what we think is by introducing the specifics with a term such as including necessary to achieve what we think [the legislature] really or even including without limitation”). The statute expressly intended.” Lewis v. City of Chicago, 560 U.S. 205, 215, 130 provides that the category of prohibited conduct for which S.Ct. 2191, 176 L.Ed.2d 967 (2010) (emphases added); see a physician may be disciplined—however that category may alsoBadaracco v. Comm'r of Internal Revenue, 464 U.S. 386, be described—“includes” illegal conduct connected with 398, 104 S.Ct. 756, 78 L.Ed.2d 549 (1984) (“Courts are not the practice of medicine. Because Dr. Aleman's failure to authorized to rewrite a statute because they might deem its comply with the electronic-certification statute amounts to effects susceptible of improvement.”). The Court does not such conduct, the statute authorizes the Board to discipline think that all illegal conduct connected with the practice of him. medicine constitutes “unprofessional or dishonorable conduct likely to deceive or defraud the public,” so it rewrites the Because the statute expressly grants the Board authority statute to include only those illegal acts that it thinks fit that to discipline Dr. Aleman for violating the electronic- description. But it ignores the statute's express statement that the general category “includes” illegal conduct connected certification statute, I respectfully dissent. 4 Like the *817 with the practice of medicine, whether we think it should or unanimous court of appeals, the trial court, the Board, not. and the administrative law judge, I would hold that the Board acted within its authority, Dr. Aleman cannot rely on And there's more. If, as the Court concludes, the statute allows an impossibility defense, and the Board did not abuse its the Board to discipline doctors only for conduct that is “likely discretion. I would affirm. to deceive or defraud the public,” there'd be no reason for the list of “included” conduct at all. Under the Court's approach, All Citations every act that clearly fits that description is actionable, every act that does not clearly fit that description is not actionable, 573 S.W.3d 796, 62 Tex. Sup. Ct. J. 1108 and the list of acts that the statute says are “included” within

Footnotes

1 The Act allows other designated physicians to complete the medical certification if the attending physician is unavailable and other requirements are met. TEX. HEALTH & SAFETY CODE § 193.005(c). And in 2017, the Legislature amended the Act to allow a physician assistant or advanced practice registered nurse to complete the certification for certain patients receiving hospice services and palliative care. Act of May 30, 2017, 85th Leg., R.S., ch. 509, § 1, 2017 Tex. Gen. Laws 1343, 1343–44 (codified at TEX. HEALTH & SAFETY CODE § 193.005(a-1)).

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 13 Aleman v. Texas Medical Board, 573 S.W.3d 796 (2019) 62 Tex. Sup. Ct. J. 1108

2 The Act requires the person completing the medical certification to notify the funeral director of the reason for delay if the certification cannot be completed in a timely manner. TEX. HEALTH & SAFETY CODE § 193.005(g).

3 If the person required to file the certificate is licensed by a state agency, the Act prohibits the agency from taking “disciplinary action against the person for failure to timely file the certificate if the person supplies written documentation that the person has made a good faith effort to [timely] file ... and the failure to [do so] results from circumstances beyond the person's control.” Id. § 193.0041.

4 According to the Department's website, a new registration system called Texas Electronic Vital Events Registrar (TxEVER) went live on January 1, 2019, replacing TEDR and the corresponding system for preparing and recording birth certificates. See https://dshs.texas.gov/vs/field/The-TxEVER-Project/.

5 After the electronic certification requirement went into effect in September 2007, the Board observed a grace period until June 1, 2011, refraining from taking disciplinary action against physicians who failed to comply with the requirement during that period. The events involving Dr. Aleman occurred shortly after the grace period expired.

6 “Practicing medicine” is defined as “the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions, by a [physician].” TEX. OCC. CODE § 151.002(13).

7 We disagree with the court of appeals and the dissent that the Act internally defines the term “unprofessional or dishonorable conduct likely to deceive or defraud the public.” Rather, the Legislature has enumerated in section 164.053 a number of practices that are encompassed by that classification, including acts that violate state law and are connected with the physician's practice of medicine.

8 The dissent opines that failing to adequately supervise subordinates, writing prescriptions for known narcotic abusers, and prescribing nontherapeutic treatments do not necessarily constitute conduct that is likely to deceive or defraud the public. Post at 815. We disagree. Failing to supervise subordinates gives patients a false sense of that person's authority and control, and prescribing drugs to narcotic abusers or prescribing nontherapeutic treatments gives others the false impression that the drug or treatment is appropriate.

9 The concurrence would hold that Dr. Aleman's conduct does not satisfy section 164.053(a)(1) because the statute requires the affirmative commission of an act, and Dr. Aleman is being accused only of failing to act —specifically, failing to certify electronically. Post at 811. We do not view the statute so narrowly. Leaving aside that almost any conduct can be characterized as both acting and failing to act depending on how it is presented—for example, running a stop sign vs. failing to stop at a stop sign—the allegations against Dr. Aleman are premised on his actions. The Board alleged, and the ALJ found, that Dr. Aleman certified J.S.'s death certificate manually in contravention of the Health and Safety Code's requirement that he do so electronically. In other words, the complained-of conduct involves the manner in which Dr. Aleman certified the death certificate, which is an affirmative act.

10 Each local registrar is required to send all registered birth and death certificates to the state registrar on a monthly basis. TEX. HEALTH & SAFETY CODE § 191.029. The state registrar must “arrange, bind, and permanently preserve [the certificates] in a systematic manner.” Id. § 191.032.

11 The dissent implies that we have imposed our own subjective view of what fits within the category's description. Post at 816. But not even the Board argues that the conduct at issue does so. Instead, it (and the dissent) argue that we should ignore the language the Legislature chose to describe this category altogether.

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 14 Aleman v. Texas Medical Board, 573 S.W.3d 796 (2019) 62 Tex. Sup. Ct. J. 1108

12 The dissent accuses the Court of rewriting the statute to avoid what we perceive as a troubling result. Post at 816. To the contrary, we interpret the statute as a whole and in context to conclude that the Legislature intended to avoid this result. Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520 S.W.3d 887, 893 (Tex. 2017) (“[T]he truest measure of what the Legislature intended is what it enacted.”).

13 Dr. Aleman alternatively argues that any violation of the electronic certification requirement was excused because it was impossible for him to certify J.S.'s death certificate electronically after it was dropped to paper without his knowledge by the funeral director. He also argues that, to the extent sanctions were authorized, the particular sanction imposed by the Board was so severe as to constitute an abuse of discretion. In light of our holding that Dr. Aleman did not violate the Medical Practice Act, we need not reach these issues.

1 We are directed to no formally promulgated regulation containing this “process.” The Board describes the process based on witness testimony from state employees familiar with its inner workings, not based on citations to legal authority. If, as the Board seems to argue, the legislature outlawed whatever the state registrar-approved process would later happen to prohibit, then section 193.005(h) could fail a constitutional challenge under non-delegation principles. Article II, Section 1 of the Texas Constitution, our state's separation-of-powers clause, has been understood to prohibit the legislature from delegating to executive branch agencies the authority to make law. TEX. CONST. art. II, § 1; Brown v. Humble Oil & Ref. Co., 126 Tex. 296, 83 S.W.2d 935, 941 (1935) (“The power to pass laws rests with the Legislature, and that power cannot be delegated to some commission or other tribunal.”); Chancy v. State, 84 Tex. 529, 19 S.W. 706, 709 (1892) (“Laws can be made in this state only by the legislature, and it has no power to delegate to any board or other department of the government the power to annul laws enacted by it.”).

2 Although Dr. Aleman does not couch his statutory arguments in the text's distinction between acts and omissions, his statutory arguments implicate similar concerns by stressing the “impossibility” of complying with the statute after the certificate had been “dropped to paper.” He essentially argues that he can't have done anything wrong because once the certificate was “dropped to paper” he did not have the option to do anything right. He is correct.

3 1 WILLIAM BLACKSTONE, COMMENTARIES *54–55, (“[D]ivine or natural duties ... [do not] receive any stronger sanction from being also declared to be duties by the law of the land. The case is the same as to crimes and misdemeanors, that are forbidden by the superior laws, and therefore styled mala in se, such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. For that legislature in all these cases acts only ... in subordination to the great lawgiver, transcribing and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong. But, with regard to things in themselves indifferent, the case is entirely altered. These become either right or wrong, just or unjust, duties or misdemeanors, according as the municipal legislator sees proper ....”).

1 See, e.g., Lawson v. FMR LLC, 571 U.S. 429, 460, 134 S.Ct. 1158, 188 L.Ed.2d 158 (2014) (Scalia, J., concurring) (“Since congressional ‘intent’ apart from enacted text is fiction to begin with, courts understandably allow themselves a good deal of poetic license in defining it.”); Bank One Chicago, N.A. v. Midwest Bank & Tr. Co., 516 U.S. 264, 279, 116 S.Ct. 637, 133 L.Ed.2d 635 (1996) (Scalia, J., concurring) (“The law is what the law says, and we should content ourselves with reading it rather than psychoanalyzing those who enacted it.”); Sherman v. United States, 356 U.S. 369, 381, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) (Frankfurter, J., concurring) (referring to “wholly fictitious congressional intent”); Tex. Dep't of Pub. Safety v. LaFleur, 32 S.W.3d 911, 915 n.7 (Tex. App.—Texarkana 2000, no pet.) (“Legislative intent is, in a sense, a legal fiction because it requires the courts to ascertain the intent of all of the voting members of the legislative body. There is no way to know what all members of the Legislature believed any given bill might mean.”);

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 15 Aleman v. Texas Medical Board, 573 S.W.3d 796 (2019) 62 Tex. Sup. Ct. J. 1108

Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 61, 68 (1994) (“Intent is elusive for a natural person, fictive for a collective body.”).

2 F. SCOTT FITZGERALD, THE GREAT GATSBY 79 (Wordsworth Editions Ltd. 1993) (“There is no confusion like the confusion of a simple mind.”).

3 See alsoAdams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018) (“[W]e must adhere to statutory definitions.”) (citing TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (“If a statute uses a term with a particular meaning or assigns a particular meaning to a term, we are bound by the statutory usage.”)); Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018) (“Courts must adhere to legislative definitions of terms when they are supplied.”) (citing TEX. GOV'T CODE § 311.001(b)); Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520 S.W.3d 887, 893 (Tex. 2017) (“We also typically give statutory terms their ordinary or common meaning unless ... a supplied definition indicates that a different meaning was intended.”) (citing Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 765 (Tex. 2014) (“We rely on the plain meaning of the text as expressing legislative intent unless a different meaning is supplied by legislative definition ....”)); Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 46 (Tex. 2015) (“[W]e initially limit our statutory review to the plain meaning of the text as the sole expression of legislative intent ... unless the Legislature has supplied a different meaning by definition ....”) (internal citations omitted); Ross v. St. Luke's Episcopal Hosp., 462 S.W.3d 496, 501 (Tex. 2015) (“We construe a statute's words according to their plain and common meaning unless they are statutorily defined otherwise ....”); In re Ford Motor Co., 442 S.W.3d 265, 271 (Tex. 2014) (orig. proceeding) (“We presume that a definition of a common word accords with and does not conflict with the ordinary meaning unless the language clearly indicates otherwise.”); Combs v. Roark Amusement & Vending, L.P., 422 S.W.3d 632, 636 (Tex. 2013) (“If a term is expressly defined by statute we must follow that definition.”) (citing TEX. GOV'T CODE § 311.001(b)); City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010) (“If the Legislature provides definitions for words it uses in statutes, then we use those definitions in our task.”); Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002) (“[I]f a statute defines a term, a court is bound to construe that term by its statutory definition only.”); Tijerina v. City of Tyler, 846 S.W.2d 825, 827 (Tex. 1992) (“Statutory definitions must be given effect; ordinary meanings should be applied only to undefined terms.”) (emphasis added).

4 Dr. Aleman alternatively argues that it was “impossible” for him to electronically certify the death certificate, given that he had not yet registered to use the system, and that the Board abused its discretion by imposing arbitrary and capricious penalties. For the reasons the court of appeals explained, I would reject both arguments. Dr. Aleman cannot rely on an impossibility “of his own making—his failure to register with the [electronic system] until August 2011.” 565 S.W.3d at 35. And the Board's penalties fell well below the maximum its rules allowed for contested cases. See22 TEX. ADMIN. CODE § 190.14(4) (“The maximum sanction in all cases is revocation of the licensee's license, which may be accompanied by an administrative penalty of up to $ 5,000 per violation.”). I do not disagree with the Court's holding that the Board's complaint against Dr. Aleman met all statutory requirements and that Dr. Aleman was not entitled to attorney's fees in the administrative proceedings. See ante at 807, 808.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 16 Tab D § 164.051. Grounds for Denial or Disciplinary Action, TX OCC § 164.051

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 Subchapter B. License Denial and Disciplinary Actions

V.T.C.A., Occupations Code § 164.051

§ 164.051. Grounds for Denial or Disciplinary Action

Currentness

(a) The board may refuse to admit a person to its examination or refuse to issue a license to practice medicine and may take disciplinary action against a person if the person:

(1) commits an act prohibited under Section 164.052;

(2) is convicted of, or is placed on deferred adjudication community supervision or deferred disposition for:

(A) a felony; or

(B) a misdemeanor involving moral turpitude;

(3) commits or attempts to commit a direct or indirect violation of a rule adopted under this subtitle, either as a principal, accessory, or accomplice;

(4) is unable to practice medicine with reasonable skill and safety to patients because of:

(A) illness;

(B) drunkenness;

(C) excessive use of drugs, narcotics, chemicals, or another substance; or

(D) a mental or physical condition;

(5) is found by a court judgment to be of unsound mind;

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1 § 164.051. Grounds for Denial or Disciplinary Action, TX OCC § 164.051

(6) fails to practice medicine in an acceptable professional manner consistent with public health and welfare;

(7) is removed, suspended, or is subject to disciplinary action taken by the person's peers in a local, regional, state, or national professional medical association or society, or is disciplined by a licensed hospital or medical staff of a hospital, including removal, suspension, limitation of hospital privileges, or other disciplinary action, if the board finds that the action:

(A) was based on unprofessional conduct or professional incompetence that was likely to harm the public; and

(B) was appropriate and reasonably supported by evidence submitted to the board;

(8) is subject to repeated or recurring meritorious health care liability claims that in the board's opinion evidence professional incompetence likely to injure the public; or

(9) except as provided by Subsections (d) and (e), holds a license to practice medicine subject to disciplinary action by another state, or subject to disciplinary action by the uniformed services of the United States, based on acts by the person that are prohibited under Section 164.052 or are similar to acts described by this subsection.

(b) Action taken by a professional medical association, society, or hospital medical staff under Subsection (a)(7) does not constitute state action.

(c) A certified copy of the record of another state that takes action described by Subsection (a)(9) or (d) is conclusive evidence of that action.

(d) The board shall refuse to issue a license under this subtitle if the applicant held a license to practice medicine in another state that has been revoked by the licensing authority in that state for a reason that would be grounds for the board to revoke a license to practice medicine in this state.

(e) The board shall revoke a license issued under this subtitle if the license holder, while holding the license under this subtitle, held a license to practice medicine in another state that has been revoked by the licensing authority in that state for a reason that would be grounds for the board to revoke a license to practice medicine in this state.

Credits Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 202, § 31, eff. June 10, 2003; Acts 2023, 88th Leg., ch. 827 (H.B. 1998), § 10, eff. Sept. 1, 2023.

V. T. C. A., Occupations Code § 164.051, TX OCC § 164.051 Current through legislation effective June 12, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more current, but not necessarily complete through the whole Session. See credits for details.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 Tab E § 164.052. Prohibited Practices by Physician or License Applicant, TX OCC § 164.052

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 Subchapter B. License Denial and Disciplinary Actions

V.T.C.A., Occupations Code § 164.052

§ 164.052. Prohibited Practices by Physician or License Applicant

Currentness

(a) A physician or an applicant for a license to practice medicine commits a prohibited practice if that person:

(1) submits to the board a false or misleading statement, document, or certificate in an application for a license;

(2) presents to the board a license, certificate, or diploma that was illegally or fraudulently obtained;

(3) commits fraud or deception in taking or passing an examination;

(4) uses alcohol or drugs in an intemperate manner that, in the board's opinion, could endanger a patient's life;

(5) commits unprofessional or dishonorable conduct that is likely to deceive or defraud the public, as provided by Section 164.053, or injure the public;

(6) uses an advertising statement that is false, misleading, or deceptive;

(7) advertises professional superiority or the performance of professional service in a superior manner if that advertising is not readily subject to verification;

(8) purchases, sells, barters, or uses, or offers to purchase, sell, barter, or use, a medical degree, license, certificate, or diploma, or a transcript of a license, certificate, or diploma in or incident to an application to the board for a license to practice medicine;

(9) alters, with fraudulent intent, a medical license, certificate, or diploma, or a transcript of a medical license, certificate, or diploma;

(10) uses a medical license, certificate, or diploma, or a transcript of a medical license, certificate, or diploma that has been:

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1 § 164.052. Prohibited Practices by Physician or License Applicant, TX OCC § 164.052

(A) fraudulently purchased or issued;

(B) counterfeited; or

(C) materially altered;

(11) impersonates or acts as proxy for another person in an examination required by this subtitle for a medical license;

(12) engages in conduct that subverts or attempts to subvert an examination process required by this subtitle for a medical license;

(13) impersonates a physician or permits another to use the person's license or certificate to practice medicine in this state;

(14) directly or indirectly employs a person whose license to practice medicine has been suspended, canceled, or revoked;

(15) associates in the practice of medicine with a person:

(A) whose license to practice medicine has been suspended, canceled, or revoked; or

(B) who has been convicted of the unlawful practice of medicine in this state or elsewhere;

(16) performs or procures a criminal abortion, aids or abets in the procuring of a criminal abortion, attempts to perform or procure a criminal abortion, or attempts to aid or abet the performance or procurement of a criminal abortion;

(17) directly or indirectly aids or abets the practice of medicine by a person, partnership, association, or corporation that is not licensed to practice medicine by the board;

(18) performs an abortion on a woman who is pregnant with a viable unborn child during the third trimester of the pregnancy unless:

(A) the abortion is necessary to prevent the death of the woman;

(B) the viable unborn child has a severe, irreversible brain impairment; or

(C) the woman is diagnosed with a significant likelihood of suffering imminent severe, irreversible brain damage or imminent severe, irreversible paralysis;

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 § 164.052. Prohibited Practices by Physician or License Applicant, TX OCC § 164.052

(19) performs an abortion on an unemancipated minor without the written consent of the child's parent, managing conservator, or legal guardian or without a court order, as provided by Section 33.003 or 33.004, Family Code, unless the abortion is necessary due to a medical emergency, as defined by Section 171.002, Health and Safety Code;

(20) otherwise performs an abortion on an unemancipated minor in violation of Chapter 33, Family Code;

(21) performs or induces or attempts to perform or induce an abortion in violation of Subchapter C, F, or G, Chapter 171, Health and Safety Code;

(22) in complying with the procedures outlined in Sections 166.045 and 166.046, Health and Safety Code, wilfully fails to make a reasonable effort to transfer a patient to a physician who is willing to comply with a directive;

(23) performs or delegates to another individual the performance of a pelvic examination on an anesthetized or unconscious patient in violation of Section 167A.002, Health and Safety Code; or

(24) performs a gender transitioning or gender reassignment procedure or treatment in violation of Section 161.702, Health and Safety Code.

(b) For purposes of Subsection (a)(12), conduct that subverts or attempts to subvert the medical licensing examination process includes, as prescribed by board rules, conduct that violates:

(1) the security of the examination materials;

(2) the standard of test administration; or

(3) the accreditation process.

(c) The board shall adopt the forms necessary for physicians to obtain the consent required for an abortion to be performed on an unemancipated minor under Subsection (a). The form executed to obtain consent or any other required documentation must be retained by the physician until the later of the fifth anniversary of the date of the minor's majority or the seventh anniversary of the date the physician received or created the documentation for the record.

Credits Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended by Acts 2005, 79th Leg., ch. 269, § 1.42, eff. Sept. 1, 2005; Acts 2013, 83rd Leg., 2nd C.S., ch. 1 (H.B. 2), § 6, eff. Oct. 29, 2013; Acts 2015, 84th Leg., ch. 436 (H.B. 3994), § 13, eff. Jan. 1, 2016; Acts 2017, 85th Leg., ch. 441 (S.B. 8), § 14, eff. Sept. 1, 2017; Acts 2019, 86th Leg., ch. 1231 (H.B. 1504), § 16, eff. Sept. 1, 2019; Acts 2021, 87th Leg., ch. 251 (H.B. 1434), § 2, eff. Sept. 1, 2021; Acts 2023, 88th Leg., ch. 335 (S.B. 14), § 4, eff. Sept. 1, 2023.

V. T. C. A., Occupations Code § 164.052, TX OCC § 164.052

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3 § 164.052. Prohibited Practices by Physician or License Applicant, TX OCC § 164.052

Current through legislation effective June 12, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more current, but not necessarily complete through the whole Session. See credits for details.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4 Tab F § 164.053. Unprofessional or Dishonorable Conduct, TX OCC § 164.053

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 Subchapter B. License Denial and Disciplinary Actions

V.T.C.A., Occupations Code § 164.053

§ 164.053. Unprofessional or Dishonorable Conduct

Currentness

(a) For purposes of Section 164.052(a)(5), unprofessional or dishonorable conduct likely to deceive or defraud the public includes conduct in which a physician:

(1) commits an act that violates any state or federal law if the act is connected with the physician's practice of medicine;

(2) fails to keep complete and accurate records of purchases and disposals of:

(A) drugs listed in Chapter 481, Health and Safety Code; or

(B) controlled substances scheduled in the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);

(3) writes prescriptions for or dispenses to a person who:

(A) is known to be an abuser of narcotic drugs, controlled substances, or dangerous drugs; or

(B) the physician should have known was an abuser of narcotic drugs, controlled substances, or dangerous drugs;

(4) writes false or fictitious prescriptions for:

(A) dangerous drugs as defined by Chapter 483, Health and Safety Code; or

(B) controlled substances scheduled in Chapter 481, Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1 § 164.053. Unprofessional or Dishonorable Conduct, TX OCC § 164.053

(5) prescribes or administers a drug or treatment that is nontherapeutic in nature or nontherapeutic in the manner the drug or treatment is administered or prescribed;

(6) prescribes, administers, or dispenses in a manner inconsistent with public health and welfare:

(A) dangerous drugs as defined by Chapter 483, Health and Safety Code; or

(B) controlled substances scheduled in Chapter 481, Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);

(7) violates Section 311.0025, Health and Safety Code;

(8) fails to supervise adequately the activities of those acting under the supervision of the physician; or

(9) delegates professional medical responsibility or acts to a person if the delegating physician knows or has reason to know that the person is not qualified by training, experience, or licensure to perform the responsibility or acts.

(b) A complaint, indictment, or conviction of a violation of law is not necessary for the enforcement of Subsection (a)(1). Proof of the commission of the act while in the practice of medicine or under the guise of the practice of medicine is sufficient for the board's action.

(c) Subsection (a)(3) does not apply to a person the physician is treating for:

(1) the person's use of narcotics after the physician notifies the board in writing of the name and address of the person being treated; or

(2) intractable pain under the Intractable Pain Treatment Act (Article 4495c, Revised Statutes).

Credits Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1420, § 14.034(a), eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 202, § 32, eff. June 10, 2003.

V. T. C. A., Occupations Code § 164.053, TX OCC § 164.053 Current through legislation effective June 12, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections may be more current, but not necessarily complete through the whole Session. See credits for details.

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© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 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.

Lauren Hawthorne on behalf of Hayley Ellison Bar No. 24074175 lhawthorne@dslawpc.com Envelope ID: 102632661 Filing Code Description: Brief Not Requesting Oral Argument Filing Description: Appellant's Brief Status as of 7/1/2025 10:51 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Jason M.Davis jdavis@dslawpc.com 7/1/2025 10:47:50 AM SENT

Ted Ross 24008890 Ted.Ross@oag.texas.gov 7/1/2025 10:47:50 AM SENT

Jeff Lutz jeff.lutz@oag.texas.gov 7/1/2025 10:47:50 AM SENT

Hayley Ellison hellison@dslawpc.com 7/1/2025 10:47:50 AM SENT

Katherine Johnson 24126964 kathy.johnson@oag.texas.gov 7/1/2025 10:47:50 AM SENT