Jose A. Perez v. Texas Medical Board and Mari Robinson, JD, in Her Official Capacity
Opinion
ACCEPTED 03-14-00644-CV 4422882 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/9/2015 2:26:40 PM JEFFREY D. KYLE CLERK No. 03-14-00644-CV
FILED IN 3rd COURT OF APPEALS __________________________________________________________________ AUSTIN, TEXAS 3/9/2015 2:26:40 PM IN THE THIRD COURT OF APPEALS JEFFREY D. KYLE AUSTIN, TEXAS Clerk
JOSE A. PEREZ
Appellant
Vs.
TEXAS MEDICAL BOARD and MARI ROBINSON JD, in her Official Capacity
Appellees.
Appeal from the 53rd Judicial District Court Travis County , Texas
Appellant’s Amended Initial Brief
Jose A. Perez 34 Candle Pine Place The Woodlands, TX 77381 theaesculapius@gmail.com 281-673-0452
Oral Argument Waived
1 Identity of Parties and Counsel
Appellant/Plaintiff
Jose A. Perez, Proceeding pro se
Appellees/Defendants
Texas Medical Board
Mari Robinson, executive director, in her Official Capacity
Counsel for Appellees
Ted A Ross, Esq Assistant Attorney General PO Box 12548 Austin, TX 78711-2548
2 TABLE OF CONTENTS
Identity of Parties and Counsel..................................................................................2
Table of Contents.......................................................................................................3
Index of Authorities...................................................................................................3
Statement of the Case .............................................................................................16
Issues Presented ......................................................................................................16
Statement of Facts.................................................................................................. 17
Summary of the Argument .....................................................................................18
Argument ................................................................................................................23
Standard of Review……………………………………………………………….22
Prayer ......................................................................................................................59
Certificate of Service ..............................................................................................59
Tex R. App. P. 9.4(i)(3) Certificate of Compliance………………………………60
Index Of Authorities
Cases
A.R. Logan v. The State, 5 Texas Court Of Appeals 306 (Tyler-1878)………………………………27, 33
Aguilar v. Frias, 366 SW 3d 271, 273 (Tex. App.—El Paso 2012)……………………………49, 50
Alabama v. White, 496 US 325, 328-331 (1990)……………………………………………………36 3 Allison v. Nat'l Union Fire Ins. Co., 703 SW 2d 637, 638 (Tex. 1986) (per curiam)……………………………….41
Austin Chevrolet, Inc. v. Motor Vehicle Bd., 212 S.W.3d 425, 438 (Tex. App.-Austin 2006, pet. denied)……………………39
Bank of Woodson v. Stewart, 632 S.W.2d 950, 956 (Tex. App.-Austin 1982), dism'd as moot, 641 S.W.2d 230 (Tex. 1982)…………………………………..26
Barber v. Texas Dept. of Transportation, 49 S.W.3d 12 (Tex.App. Dist.3 04/05/2001)……………………………30, 32, 46
Bay City Federal Savings and Loan Ass'n. v. Lewis, 474 SW 2d 459 (Tex. 1971)………………………………………………34, 54
Black v. 7-Eleven Convenience Stores, 03-12-00014-CV, 03-12-00015-CV (Tex.App. Dist.3 03/07/2014)……………29
Bounds v. Smith, 430 US 817, (1977)……………………………………………………………57
Brazos River Authority v. City of Graham, 335 SW 2d 247, 251 (Tex. Civ. App.--Fort Worth 1960), aff'd., 354 SW 2d 99 (1961)…………………………………………………….48
City of Houston v. Johnny Frank's Auto Parts, 480 SW 2d 774 (14th DCA- 1972, writ ref'd n.r.e.)………………...29, 30, 32, 46
Childs v. Weis, 440 S.W.2d 104, 107 (Tex. Civ. App.--Dallas 1969, no writ)………………….37
CHCA E. Houston, L.P. v. Henderson, 99 SW 3d 630, 633 (Tex. App.-Houston [14th Dist.] 2003, no pet.)…………...40
City of Dallas v. Heather Stewart, No. 09-0257 (Tex. 01/27/2012)…………………………………………………56
4 City of El Paso v. Heinrich, 284 S.W.3d 366, 370-74 (Tex. 2009)…………………………………………..50
City of Monterey v. Del Monte Dunes at Monterey, 526 U.S. 687, (U.S. 05/24/1999)………………………………………………53
City of Sherman v. Pub. Utility Comm'n of Texas, 643 SW 2d 681, 686 (Tex. 1983)……………………………………………….39
Chicago, B & Q.R. Co. v. Chicago 166 U.S. 226 (1897)…………………………………………………………….51
Cleveland Board of Education v. Loudermill., 470 US 532 , 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985)………………………...29
Cooper v. Tex. Gulf Indus., Inc., 513 SW 2d 200, 203-04 (Tex. 1974)…………………………………………...41
Combs v. Entertainment Publications, Inc., 292 S.W.3d 712 (Tex.App. Dist.3 06/12/2009)…………………………………39
Conner v. Johnson, No. 2-03-316-CV (Tex. App. Dist.2 10/28/2004)…………………………..31, 32
Continental Casualty Insurance Co. v. Functional Restoration Associates, 19 S.W.3d 393, 19 S.W.3d 393 (Tex. 04/06/2000)……………………………..26
Christopher v. Harbury, 536 US 403 (2002)……………………………………………………………….57
Club Retro LLC v. Hilton, 568 F.3d 181 (5th Cir. 05/06/2009)…………………………………………….36
Cypress-Fairbanks Indep. Sch. Dist. v. Texas Educ. Agency, 797 S.W.2d 336, 342-43 (Tex. App.-Austin 1990)……………………………..42
Dent v. State of W. Va., 129 US 114, 121-22 (1889)……………………………………………………..44
5 Downing v. Brown, 935 SW 2d 112, 114 (Tex. 1996)………………………………………………..31
Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000)………………………………………………………………….31
ElderCare Properties, Inc. v. Texas Department of Human Services, 63 S.W.3d 551 (Tex. App. Dist.3 12/06/2001)………………………………….25
El Paso Hosp. Dist. v. Texas Health & Human Servs. Comm'n, 247 S.W.3d 709 (Tex. 2008)……………………………………………………38
Ex parte Abell, 613 S.W.2d 255, 260 (Tex. 1981)…………………………………………...30, 43
Flores v. Employees Retirement Sys. of Tex., 74 S.W.3d 532 (Tex. App.-Austin 2002, pet. denied)……………………….….39
Francisco v. Board of Dental Examiners, 149 S.W.2d 619, 622 (Tex. Civ. App. -- Austin 1941, writ ref'd)………………29
Freeman v. City of Dallas, 242 F.3d 642, 647 n.5 (5th Cir. 2001) (en banc)
G.C. & S.F. Ry. Co. v. Fuller, 63 Tex. 467, 469 (1885)…………………………………………………………49
General Servs. Comm'n v. Little-Tex Insulation Co., 39 SW 3d 591, 599 (Tex. 2001)………………………………………………..39
Gibson v. Texas Municipal Retirement System, 683 SW 2d 882 (Tex. App.--Austin 1985, no writ)……………………….34, 54
Gutierrez v. Laredo Independent School Dist., 139 S.W.3d 363 (Tex.App. 05/12/2004)………………………………………..42
Griffin v. Hawn, 341 SW 2d 151, 152 (Tex. 1960)………………………………………………47
6 Hamilton v. Washington, NO. 03-11-00594-CV (3rd DCA - December 23, 2014)………………………...38
Harris County v. Sykes, 136 S.W.3d 635 (Tex. 05/28/2004)………………………………………………45
Heck v. Humphrey, 512 U. S. 477, 483 (1994)……………………………………………………….53
Holland St. John, M.D v. Marty Howard Pope and Sally Bates Pope, 901 S.W.2d 420 (Tex. 06/08/1995)……………………………………………..37
Hull v. Texas State Board Public Accountancy, 434 SW 2d 387 (Tx App. – Houston- (11/06/68)……………………………….28
In Re Clifford Hall, NO. 14-14-00062-CV , (14th DCA - May 28, 2014)………………………40, 41
Industrial Accident Bd. v. O'Dowd, 303 S.W.2d 763 (Tex. 1957)……………………………………………………44
In re State Bd. for Educator Certification, No. 13-0537, (Tex. Dec. 19, 2014)……………………………………………...26
In re Texas Medical Board, 315 S.W.3d 177 (Tex.App. Dist.6 06/01/2010)………………………………………………….35
Jackson v. Procunier, 789 F.2d 307 (5th Cir. 05/09/1986)……………………………………………57
Jones v. Ross, 173 S.W.2d 1022, 1024 (Tex. 1943)……………………………………………26
Kadrmas v. Dickinson Public Schools, 487 U.S.
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ACCEPTED 03-14-00644-CV 4422882 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/9/2015 2:26:40 PM JEFFREY D. KYLE CLERK No. 03-14-00644-CV
FILED IN 3rd COURT OF APPEALS __________________________________________________________________ AUSTIN, TEXAS 3/9/2015 2:26:40 PM IN THE THIRD COURT OF APPEALS JEFFREY D. KYLE AUSTIN, TEXAS Clerk
JOSE A. PEREZ
Appellant
Vs.
TEXAS MEDICAL BOARD and MARI ROBINSON JD, in her Official Capacity
Appellees.
Appeal from the 53rd Judicial District Court Travis County , Texas
Appellant’s Amended Initial Brief
Jose A. Perez 34 Candle Pine Place The Woodlands, TX 77381 theaesculapius@gmail.com 281-673-0452
Oral Argument Waived
1 Identity of Parties and Counsel
Appellant/Plaintiff
Jose A. Perez, Proceeding pro se
Appellees/Defendants
Texas Medical Board
Mari Robinson, executive director, in her Official Capacity
Counsel for Appellees
Ted A Ross, Esq Assistant Attorney General PO Box 12548 Austin, TX 78711-2548
2 TABLE OF CONTENTS
Identity of Parties and Counsel..................................................................................2
Table of Contents.......................................................................................................3
Index of Authorities...................................................................................................3
Statement of the Case .............................................................................................16
Issues Presented ......................................................................................................16
Statement of Facts.................................................................................................. 17
Summary of the Argument .....................................................................................18
Argument ................................................................................................................23
Standard of Review……………………………………………………………….22
Prayer ......................................................................................................................59
Certificate of Service ..............................................................................................59
Tex R. App. P. 9.4(i)(3) Certificate of Compliance………………………………60
Index Of Authorities
Cases
A.R. Logan v. The State, 5 Texas Court Of Appeals 306 (Tyler-1878)………………………………27, 33
Aguilar v. Frias, 366 SW 3d 271, 273 (Tex. App.—El Paso 2012)……………………………49, 50
Alabama v. White, 496 US 325, 328-331 (1990)……………………………………………………36 3 Allison v. Nat'l Union Fire Ins. Co., 703 SW 2d 637, 638 (Tex. 1986) (per curiam)……………………………….41
Austin Chevrolet, Inc. v. Motor Vehicle Bd., 212 S.W.3d 425, 438 (Tex. App.-Austin 2006, pet. denied)……………………39
Bank of Woodson v. Stewart, 632 S.W.2d 950, 956 (Tex. App.-Austin 1982), dism'd as moot, 641 S.W.2d 230 (Tex. 1982)…………………………………..26
Barber v. Texas Dept. of Transportation, 49 S.W.3d 12 (Tex.App. Dist.3 04/05/2001)……………………………30, 32, 46
Bay City Federal Savings and Loan Ass'n. v. Lewis, 474 SW 2d 459 (Tex. 1971)………………………………………………34, 54
Black v. 7-Eleven Convenience Stores, 03-12-00014-CV, 03-12-00015-CV (Tex.App. Dist.3 03/07/2014)……………29
Bounds v. Smith, 430 US 817, (1977)……………………………………………………………57
Brazos River Authority v. City of Graham, 335 SW 2d 247, 251 (Tex. Civ. App.--Fort Worth 1960), aff'd., 354 SW 2d 99 (1961)…………………………………………………….48
City of Houston v. Johnny Frank's Auto Parts, 480 SW 2d 774 (14th DCA- 1972, writ ref'd n.r.e.)………………...29, 30, 32, 46
Childs v. Weis, 440 S.W.2d 104, 107 (Tex. Civ. App.--Dallas 1969, no writ)………………….37
CHCA E. Houston, L.P. v. Henderson, 99 SW 3d 630, 633 (Tex. App.-Houston [14th Dist.] 2003, no pet.)…………...40
City of Dallas v. Heather Stewart, No. 09-0257 (Tex. 01/27/2012)…………………………………………………56
4 City of El Paso v. Heinrich, 284 S.W.3d 366, 370-74 (Tex. 2009)…………………………………………..50
City of Monterey v. Del Monte Dunes at Monterey, 526 U.S. 687, (U.S. 05/24/1999)………………………………………………53
City of Sherman v. Pub. Utility Comm'n of Texas, 643 SW 2d 681, 686 (Tex. 1983)……………………………………………….39
Chicago, B & Q.R. Co. v. Chicago 166 U.S. 226 (1897)…………………………………………………………….51
Cleveland Board of Education v. Loudermill., 470 US 532 , 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985)………………………...29
Cooper v. Tex. Gulf Indus., Inc., 513 SW 2d 200, 203-04 (Tex. 1974)…………………………………………...41
Combs v. Entertainment Publications, Inc., 292 S.W.3d 712 (Tex.App. Dist.3 06/12/2009)…………………………………39
Conner v. Johnson, No. 2-03-316-CV (Tex. App. Dist.2 10/28/2004)…………………………..31, 32
Continental Casualty Insurance Co. v. Functional Restoration Associates, 19 S.W.3d 393, 19 S.W.3d 393 (Tex. 04/06/2000)……………………………..26
Christopher v. Harbury, 536 US 403 (2002)……………………………………………………………….57
Club Retro LLC v. Hilton, 568 F.3d 181 (5th Cir. 05/06/2009)…………………………………………….36
Cypress-Fairbanks Indep. Sch. Dist. v. Texas Educ. Agency, 797 S.W.2d 336, 342-43 (Tex. App.-Austin 1990)……………………………..42
Dent v. State of W. Va., 129 US 114, 121-22 (1889)……………………………………………………..44
5 Downing v. Brown, 935 SW 2d 112, 114 (Tex. 1996)………………………………………………..31
Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000)………………………………………………………………….31
ElderCare Properties, Inc. v. Texas Department of Human Services, 63 S.W.3d 551 (Tex. App. Dist.3 12/06/2001)………………………………….25
El Paso Hosp. Dist. v. Texas Health & Human Servs. Comm'n, 247 S.W.3d 709 (Tex. 2008)……………………………………………………38
Ex parte Abell, 613 S.W.2d 255, 260 (Tex. 1981)…………………………………………...30, 43
Flores v. Employees Retirement Sys. of Tex., 74 S.W.3d 532 (Tex. App.-Austin 2002, pet. denied)……………………….….39
Francisco v. Board of Dental Examiners, 149 S.W.2d 619, 622 (Tex. Civ. App. -- Austin 1941, writ ref'd)………………29
Freeman v. City of Dallas, 242 F.3d 642, 647 n.5 (5th Cir. 2001) (en banc)
G.C. & S.F. Ry. Co. v. Fuller, 63 Tex. 467, 469 (1885)…………………………………………………………49
General Servs. Comm'n v. Little-Tex Insulation Co., 39 SW 3d 591, 599 (Tex. 2001)………………………………………………..39
Gibson v. Texas Municipal Retirement System, 683 SW 2d 882 (Tex. App.--Austin 1985, no writ)……………………….34, 54
Gutierrez v. Laredo Independent School Dist., 139 S.W.3d 363 (Tex.App. 05/12/2004)………………………………………..42
Griffin v. Hawn, 341 SW 2d 151, 152 (Tex. 1960)………………………………………………47
6 Hamilton v. Washington, NO. 03-11-00594-CV (3rd DCA - December 23, 2014)………………………...38
Harris County v. Sykes, 136 S.W.3d 635 (Tex. 05/28/2004)………………………………………………45
Heck v. Humphrey, 512 U. S. 477, 483 (1994)……………………………………………………….53
Holland St. John, M.D v. Marty Howard Pope and Sally Bates Pope, 901 S.W.2d 420 (Tex. 06/08/1995)……………………………………………..37
Hull v. Texas State Board Public Accountancy, 434 SW 2d 387 (Tx App. – Houston- (11/06/68)……………………………….28
In Re Clifford Hall, NO. 14-14-00062-CV , (14th DCA - May 28, 2014)………………………40, 41
Industrial Accident Bd. v. O'Dowd, 303 S.W.2d 763 (Tex. 1957)……………………………………………………44
In re State Bd. for Educator Certification, No. 13-0537, (Tex. Dec. 19, 2014)……………………………………………...26
In re Texas Medical Board, 315 S.W.3d 177 (Tex.App. Dist.6 06/01/2010)………………………………………………….35
Jackson v. Procunier, 789 F.2d 307 (5th Cir. 05/09/1986)……………………………………………57
Jones v. Ross, 173 S.W.2d 1022, 1024 (Tex. 1943)……………………………………………26
Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 456-457 (1988)…………………………………………………..29
Katz v. United States, 389 US 347 , 351 (1967)……………………………………………………….36
7 Ker v. California, 374 U.S. 23, 30, 83 S.Ct. 1623, 1628 (1963)……………………………………..52
Kent , et al, v Dulles, 357 US 116 (U.S. 06/16/1958)……………………………………………………49
Kentucky v. Graham, 473 U.S. 159, 165 (1985)……………………………………………………49, 50
Kobza v. Kutac, 109 S.W.3d 89 (Tex.App. Dist.3 05/30/2003)…………………………………..31
Kodiak Resources, Inc. v. Smith, No. 09-10-00362-CV (Tex.App. Dist.9 02/16/2012)……………………….41. 45
Land O'Lakes Creameries v. La. State Bd. of Health, 160 F. Supp. 387, 388 (E.D. La. 1958)……………………………………………25
Latham v. Security Insurance Co. of Hartford, 491 SW 2d 100 (Tex. 1972)…………………………………………………….28
Lopez v. Aziz, 852 S.W.2d 303, 306 (Tex. App.--San Antonio 1993, no writ)………………...37
Lucas v. South Carolina Coastal Council, 505 US 1003, 1019 (1992)…………………………………………………...47, 51
Lynch v. United States, 292 U.S. 571 (1934)…………………………………………………………….49
Mann v. Texas State Board Medical Examiners , 403 SW 2d 218 (Texas Appellate Austin) affirmed 413 S.W.2d 382, (03/29/67)……………………………………26, 27, 34
Mapp v. Ohio, 367 US 643 , 367 US 643, 655 (1961)…………………………………………36
Marino v. King, 355 SW 3d 629,634 (Tex. 2011)………………………………………………….57
8 Marshall v. Barlow's, Inc., 436 US 307(1978)……………………………………………………………….36
Middletown v. Texas Power & Light Co., 185 S.W. 556, 560 (Tex. 1916)……………………………………………26, 43
Milestone Operating, Inc. v. ExxonMobil Corp., 388 SW 3d 307, 310 (Tex. 2012)………………………………………………57
McCain v. Yost, 284 S.W.2d 898, 900 (Tex. 1955)…………………………………………….30, 43
McCarthy v. Madigan, 503 US 140, 146-48 (1992)…………………………………………………….32
Middletown v. Texas Power & Light Co., 185 S.W. 556, 560 (Tex. 1916)
Mitz v. Texas State Board of Veterinary Medical Examiners, 278 S.W.3d 17 (Tex.App. Dist.3 11/14/2008)………………………………32, 38
Nautilus , Inc. v Biosig Instruments, Inc. No. 13-369 (US Supreme Court - June 2, 2014)……………………………….49
Newman v. Bryan, 06-13-00063-CV (Tex.App. Dist.6 10/09/2013)……………………………49, 50
Patel, et al v. Texas Department of Licensing and Regulation, No. 03-11-00057-CV (Tex.App. Dist.3 07/25/2012)…………………………..23
Paul v. Davis, 424 US 693, 710-11 (1976)…………………………………………………….29
Payne v. Texas State Board of Medical Examiners, No. 03-07-00558-CV (Tex.App. Dist.3 03/12/2009)…………………………...39
Pennsylvania Coal Co. v. Mahon, 260 US 393 (1922)………………………………………………………………49
9 Presley v. City of Charlottesville, 464 F.3d 480, 487 (4th Cir. 2006)………………………………………………..52
Railroad Commission of Texas v. WBD Oil & Gas Co., 104 S.W.3d 69 (Tex. 02/13/2003)………………………………………………..34
Railroad Comm'n v. ARCO Oil & Gas Co., 876 SW 2d 473, 478 (Tex. App.-Austin 1994, writ denied)……………………42
Rector v. Texas Alcoholic Beverage Commission, 599 S.W.2d 800, (Tex. 1980)……………………………………………………35
Renault v City of Houston , 415 S.W.2d 948 (10th DCA- 05/18/67)…………………………………………49
Robinson v. Crown Cork & Seal Co., 335 SW 3d 126, 147 (Tex. 2010)………………………………………….27, 30
Salas v. Gamboa, 760 S.W.2d 838, 840 (Tex.App.--San Antonio 1988, no writ)………………….37
San Antonio River Authority v. Garrett Brothers, 528 SW 266, 273 (Tex. Civ. App.--San Antonio 1975, writ ref'd n.r.e.)………48
San Remo Hotel, L.P. v. City & Cnty. of S.F., Cal., 545 US 323, 346 (2005)………………………………………………………52
Satterfield v. Crown Cork & Seal Co., Inc., 268 S.W.3d 190 (Tex. App. Dist.3 08/29/2008)………………………………...26
Sierra Club v. Tex. Natural Res. Conservation Comm'n, 26 SW 3d 684, 688 (Tex. App.-Austin 2000)…………………………………..41
Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686, 690 (Tex. Sup. 1964)……………………………..26, 28, 29, 34
Scott v. Presidio I.S.D., 266 S.W.3d 531 (Tex.App. Dist.3 08/28/2008)…………………………………40
10 Severance v. Patterson, 566 F.3d 490 (5th Cir. 04/23/2009)…………………………………………52, 53
Sholdra v. Bluebonnet Sav. Bank, FSB, 858 SW 2d 533, 535 (Tex. App.-Fort Worth 1993, writ denied)………………54
Smith v Tarrant County Bail Bond Board, 997 SW 2d 870 (Tex App Dist 2 – 1999)……………………………………….24
Soldal v. Cook County, 506 U.S. 56, 61, 113 S.Ct. 538, 543 (1992)……………………………………...52
Spann v. City of Dallas, 235 S.W. 513 (1921)…………………………………………………29, 30, 32, 46
State Bd. of Medical Examiners v. Mann, 413 S.W.2d 382, (Tex. 1967)…………………………………………………..28
State ex rel Caldwell v. Allstate Insurance Co., 536 F.3d 418 (5th Cir. 07/18/2008)……………………………………………..25
State v. Hale, 146 SW 2d 731 (Tex. 1941)………………………………………………………47
State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007)…………………………………………49, 51
State v. Thomas, 766 SW 2d 217, 220 (Tex. 1989)………………………………………………..26
State v. Woodard, 341 SW 3d 404, 411 (Tex. Crim. App. 2011)…………………………………...36
Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-1151 (U.S. 06/17/2010)……………………………………………..47, 51
Subaru of Am., Inc. v. David McDavid Nissan, Inc. 84 S.W.3d 212, 219 (Tex. 2002)……………………………………………36, 43
11 Swilley v. McCain, 374 S.W.2d 871 (Tex. 1964)……………………………………………………29
Tatro v. Texas, 703 F.2d 823, 832 (5th Cir. 1983)………………………………………………26
Terry v. Ohio, 392 US 1, 22 (1968)……………………………………………………………36
Texas Alcoholic Beverage Commission, v. American Legion NO. 03-11-00703-CV (3rd DCA- May 16, 2014)……………………………….23
Tex. Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 SW 2d 88, 90 FN3 (Tex. 1992)…………………………………………….42
Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 443 (Tex. 1994)………………………………………………39
Texas Comptroller of Public Accounts v. Walker Electric Company, et al , NO. 03-13-00285-CV (3rd DCA- November 21, 2014)………………………...22
Texas Department of Public Safety v. Caitlin Elizabeth Adkins, No. 11-10-00298-CV; (Tex.App. Dist.11 08/16/2012)………………………...36
Texas Dep't of State Health Servs. v. Balquinta, 429 SW 3d 726, 747 (Tex. App-Austin 2014, pet. filed)…………………32, 39
Tex. Dep't of Parks & Wildlife v. Miranda, 133 SW 3d 217, 227 (Tex. 2004)………………………………….22, 49, 50, 51
Texas Parks and Wildlife Department v. the Sawyer Trust, No. 07-0945 (Tex. 08/26/2011) ………………………………………………...50
Texas Logos, L.P. v. Texas Dep't of Transp., 241 S.W.3d 105 (Tex. App.-Austin 2007, no pet.)……………………………...39
Texas State Board Medical Examiners v. Haney , 472 S.W.2d 550 (Tx App –Austin - (10/27/71)………………………………...28
12 Texas State Bd. of Pharm. v. Walgreen Tex. Co., 520 SW 2d 845 (Tex. App.--Austin 1975, writ ref'd n.r.e.)……………………32
Texas State Board of Pharmacy v Witcher, 447 SW 3d 520 (3rd DCA- October 31, 2014)………………………………….38
Texas Vending Comm. v. Headquarters Corp., 505 SW 2d 402 (Tex. Civ. App. – Austin - 1974, writ ref'd n.r.e.)……………..29
Tex. Workers' Comp. Comm'n v. Garcia, 893 SW 2d 504, 521 (Tex. 1995)………………………………………………...58
Town of Nags Head v. Toloczko, 12-1537 (4th Cir. 08/27/2013)……………………………………………………52
The State v James A. Goldman, 44 Tex. 104 (1875)………………………………………………………….27, 33
Travelers Ins. Co. v. Marshall, 76 S.W.2d 1007, 1011-12 (Tex. 1934)………………………………………….26
Travelers Ins. Co. v. Joachim, 315 SW 3d 860, 862 (Tex. 2010)……………………………………………55
Trevino v. State, 03-12-00060-CV (Tex.App. Dist.3 08/07/2013)………………………………..45
United States v. Johnson, 319 US 302, 304 (1943)………………………………………………………...25
United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, (1984)……………………………………….52
United States v. James Daniel Good Real Property, 510 U.S. 43, 49-50, 114 S.Ct. 492, 499 (1993)…………………………………...52
United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (U.S. 01/23/2012)…………………………….36
13 Univ. of Tex. Sw. Med. Ctr. at Dall. v. Loutzenhiser, 140 SW 3d 351, 358 (Tex. 2004)……………………………………………...57
Vartelas v. Holder, 132 S.Ct. 1479 (U.S. 03/28/2012)………………………………………………30
Waller v. State, 68 S.W. 2d 601, 605 (Tex. Civ. App. -- Amarillo 1934, writ ref'd)……………29
Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, (1985)…………………………………………………………….51
Wolff v. McDonnell, 418 US 539, 559 (1974)………………………………………………………35
Young v. the State of Texas, No. 14-10-00646-CR (Tex. App. Dist.14 01/10/2012)…………………………42
Zenith Star Ins. Co. v. Wilkerson, 150 S.W.3d 525, 533 (Tex. App.--Austin 2004, no pet.)……………………….40
Zimmer v. Miller Trucking Co., 743 F.2d 601 (8th Cir. 09/13/1984)……………………………………………….45
US Constitution
Amend IV……………………………………………………………..28, 36, 52
Amend V………………………………………………………………………53
Amend. XIV…………………………………………………………..25, 29, 58
Ex Post Facto Clause U.S. Const.. art. I, ' 10 Cl 1………………………...30, 42
Contract Clause………………………………………………………………..30
US Statutes
28 USC 1653…………………………………………………………………..56 14 42 USC 1983………………………………………………………………….49, 50
Texas Constitution
Article 1 , § 9………………………………………………………………28, 36
Art. I, § 19……………………………………………………………..25, 29, 58
Art. 17, § 1………………………………………………………………26, 47
Art. XVI, § 31…………………………………………………………27, 33, 35
Art. II, § 1……………………………………………………………………...26
Article I, § 16…………………………………………………………...30, 36, 42
Separation of Powers Doctrine………………………………………………….27
Texas Statutes
Medical Practice Act , Art 4501……………………………………………..26
Medical Board Rule §187.27………………………………………………...38
Medical Board Rule §185.17(3)……………………………………………38
Medical Board Rule §185.17(9)……………………………………………38
Medical Board Rule §187.27(b)(3)(C)………………………………………38
Administrative Procedure Act (APA)…………………………………………32
Texas Occupation Code Sect. 204.051……………………………………..24, 43
Texas Occupation Code Sect. 204.001………………………………………...43
Texas Occupational Code § 164.007(c)………………………………………..35
Administrative Code , Title 22, Part 9, Chapter 185……………………………24 15 Administrative Code , Title 22, Part 9, Chapter 190……………………………43
Texas Government Code
§ 2001.171…………………………………………………………………………..55 § 2003.001(4) (A)………………………………………………………24, 43 § 2001.003 (7)………………………………………………………………24 § 2001.003(6)……………………………………………………………….24 § 2001.141…………………………………………………………………34 § 2001.035(a)………………………………………………………………38 § 2001.038…………………………………………………………….. 39, 40 § 2001.176(b)(2)…………………………………………………………..41
Health & Safety Code § 12.001…………………………………………..44
Texas Rules of Evidence
Tex. R. Evid. 803(24)……………………………………………………….31, 32
Miscellaneous
12 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3522 (1984)………………………………46
Texas Register, Volume 15, Number 65, Pages 4941 , August 24, 1990………………………………………….35
Cooley, Const. Lim. 248…………………………………………………………..31
Texas Medical Board Agency Strategic Plan - Fiscal Years 2009-2013……….23
61 Am. Jur. 2d Physicians and Surgeons § 14, 158……………………………..37
16 STATEMENT OF THE CASE
(a) Petition to quash an administrative order (b) Inverse Condemnation Proceedings (c) Federal Takings/Seizure of property Claim (d) Ultra vires claim – defendant Marie Robinson (e) Declaratory judgment and complaint for compensatory and punitive damages
Trial Court
The Honorable Darlene Byrne 53rd Judicial District
Course of Proceedings
The Case was dismissed pursuant to Defendants’ Plea to the Jurisdiction
Trial Court Disposition
Cause of Action dismissed. All relief denied
ISSUES PRESENTED
The District Court granted the defendants’ plea to the jurisdiction.
1- The Defendants waived sovereign immunity pursuant to Article I, Section 17 of the Texas Constitution; 2- The Defendants waived sovereign immunity pursuant to the US Constitution Fourth, Fifth and Fourteenth Amendments; 3- The Defendants waived immunity pursuant to Section 2001.038 of the Administrative Procedures Act; 4- The trial court erred in dismissing Mr. Perez’ ultra vires claim against Defendant Mari Robinson, JD , in her official capacity; 5- The District Court has jurisdiction over Defendant Marie Robinson in her individual capacity within the meaning of 42 USC 1983 6- The District Court erred in concluding that the Defendants could penalize Mr. Perez pursuant to default procedures 7- The District Court erred in concluding that the Defendants could penalize Mr. Perez using laws adopted after 1994. 17 STATEMENT REGARDING ORAL ARGUMENT
Mr. Perez waives Oral Argument .
STATEMENT OF FACTS
Mr. Perez has a right to be gainfully employed as a physician Assistant
since September 22nd, 19941. On April 17th, 2014 Mr. Perez’ Supervising
Physician , Rafael J. de la Flor-Weiss, MD, informed Mr. Perez that agents
acting under the direction of the defendants informed Doctor dela Flor-
Weiss that Mr. Perez’ license had been revoked and directed him to escort
Mr. Perez away from the clinic2. The Defendants have never found that
abridgement of his right to be gainfully employed as a physician assistant
was necessary for the preservation of the health, safety, and welfare of the
public3. The Defendants have informed Mr. Perez that he was deprived of
his right to earn a living because he failed to participate in an administrative
proceeding 4.
1 Record on Appeal (ROA) Vol 1 of 2, p5, item 1 2 ROA , Vol 1 of 2, p. 4, item 1; ROA p 174, Defendants Brief in support of their first amended plea to the jurisdiction p1 3 ROA, Vol 1 of 2 p. 144 , item #8 4 ROA p.4, Vol 1 of 2, item #3 18 On April 17th, 2014 Mr. Perez was deprived of all economical beneficial
use of his property. Mr. Perez right to work as a physician assistant was
seized by the defendants on April 17th, 20145.
Mr. Perez has never signed any document nor agreed in any way , fashion
or form to waive any federal, state or common law right. Specifically he has
not (a) waived his state right to jury trial at a district court ; (b) waived the
Fourteenth Amendment right to the preponderance of evidence standard of
proof © waived his Fourth Amendment rights; (d) waived his right to
confront and cross examine adverse witness; (e) waived his rights pursuant
to Texas Constitution Article XVI, Section 31, (f) waived his right to object
to ex post facto laws; (g) waived his right to decide when and with whom he
would enter into a patient-physician assistant relationship ; (h) waived his
rights pursuant to the common law respondeat superior doctrine6.
RECORD ON APPEAL
The Clerk of Court filed a 184 pages document entitled “Clerk’s Record”,
Vol 1 of 1 on November 14th, 2014. The Clerk of Court also filed a 100
pages document entitled “Clerk’s Record” , Vol 1 of 1 on February 13th,
5 ROA p 4, Vol1 of 2, item 1; ROA, Vol.1 of 2 p. 143 , item 1 6 ROA , Vol 1 of 2, p 10, item # 23 19 2015. Mr. Perez has designated the November 14th, 2014 set of documents as
Vol 1 of 2, and the February 13th, 2015 document as Vol 2 of 2.
SUMMARY OF THE ARGUMENT
(a) The trial court was required to give effect to the intent of the 1876
voters.
(b) The trial court was supposed to abide by Supreme Court precedents;
(c) Defendants waived sovereign immunity pursuant to Article I, Section
17 of the Texas Constitution and pursuant to US Constitution Fourth,
Fifth and Fourteenth Amendments; it also waived immunity pursuant
to Section 2001.038 of the Administrative Procedures Act.
(d) Failure to sue an essential party is a non-jurisdictional defect within
the meaning of government code 2001.176 and Rule 39, TRCP;
(e) A federal and state “takings” or seizure of property proceeding
applies to all species of property without exceptions or limitations;
(f) Mr. Perez has a vested common law right to work as a physician
assistant;
(g) A medical license within the meaning of Texas Constitutional law
merely means that the licensee has demonstrated that he graduated
from an accredited University.
20 (h) The Texas Supreme Court has ruled that when a party has received
the degree of “Doctor of Medicine” from an established and well-
accredited college, no matter where he go throughout the state or
whatever may have been its date , he is not required to produce any
other evidence of his qualification. So when he has been examined
by an authorized Board of Medical examiners and has received a
certificate of qualification, he is not required to undergo a
subsequent examination, nor furnish at any time any other
additional prove of his qualifications.”
(i) The government cannot force Mr. Perez to waive his Constitutional
rights in order to work as a physician assistant;
(j) At common law a medical license could only be revoked by the
district court , for cause , in a jury trial, pursuant to the
preponderance of evidence standard;
(k) The trial court ought to have given Mr. Perez leave to amend the
complaint to sue Defendant Marie Robinson in her individual capacity
within the meaning of 42 USC 1983;
(l) The trial court transgressed upon Mr. Perez’ right to adequate,
effective and meaningful access to courts of general jurisdiction;
21 (m) The trial court erred in dismissing Mr. Perez’ ultra vires claim
against Defendant Mari Robinson, JD , in her official capacity;
(n) The trial court erred in not adjudicating whether Mr. Perez’ property
has been taken and/or seized within the meaning of the US
Constitution Fourth and Fifth Amendments;
(o) The trial court erred in admitting into evidence Defendant Exhibit “A”
because , inter alia, the Physician Assistant Board (PAB) has no
authority to revoke Mr. Perez’ right to work as a physician assistant
on a “default basis “ and its failure to disclose underlying facts
constitutes reversible error.
(p) The trial court erred in admitting into evidence Defendants’ exhibit
“B” through “H”;
(q) Mr. Perez respectfully submits that, as to federal claims, he can
amend defective allegations of jurisdiction in the appellate courts
pursuant to 28 USC § 1653.
(r) Mr. Perez respectfully submits that he can amend defective allegations
of jurisdiction in the appellate courts pursuant to Tex. Const. art. I, §
13.The open courts provision of the Texas Constitution provides: "All
courts shall be open and every person for an injury done him, in his
lands, goods, person or reputation, shall have remedy by due course of
22 law." Tex. Const. art. I, § 13. This requirement "guarantees that a
common law remedy will not be unreasonably abridged.
(s) Mr. Perez respectfully submits that, as to all claims, he can amend
defective allegations of jurisdiction in the appellate courts pursuant to
The Due Process Clauses of the Texas Constitution and the Fourteenth
Amendment to the United States Constitution. In Texas an
adjudication in the merits is preferred.
(t) Mr. Perez respectfully submits that he can amend defective allegations
of jurisdiction in the appellate courts pursuant to Tex. R. App. P. 38.7
and 2.
STANDARD OF REVIEW
Sovereign immunity from suit defeats a trial court’s subject matter
jurisdiction and thus is properly asserted in a plea to the jurisdiction7.
Whether Mr. Perez has alleged facts that demonstrate subject matter
jurisdiction is a question of law8. Accordingly, the Appellate Court reviews
the district court’s order granting Defendants’ pleas to the jurisdiction de
novo9.
7 Tex. Dep't of Parks & Wildlife v. Miranda, 133 SW 3d 217, 227 (Tex. 2004); 8 Id at 226 9 Texas Comptroller of Public Accounts v. Walker Electric Company, et al , NO. 03-13-00285- CV (3rd DCA- November 21, 2014) 23 In asserting a plea to the jurisdiction a party contends that an incurable
defect precludes the court’s hearing the case on the merits, even if all
allegations in the pleadings are true10. Thus, the court does not look to the
merits of the Plaintiff’s case in conducting its review, but considers only the
Plaintiff’s pleadings and any evidence submitted by the parties that is
pertinent to the jurisdictional inquiry11. It construes the pleadings liberally in
favor of conferring jurisdiction and looks to the pleader’s intent12 .
ARGUMENT
I
THE TEXAS MEDICAL BOARD IS THE REAL PARTY IN INTEREST
The Defendants claim that Mr. Perez failed to sue the Physician
Assistant Board (PAB) which is , allegedly, the Agency which issued the
Order to revoke his license13. That assertion is meritless14.
The Texas Medical Board is the agency which filed the Complaint in the
State office of Administrative Hearings15.
10 id 11 Patel, et al v. Texas Department of Licensing and Regulation, No. 03-11-00057-CV (Tex.App. Dist.3 07/25/2012) 12 Texas Alcoholic Beverage Commission, v. American Legion NO. 03-11-00703-CV (3rd DCA- May 16, 2014) 13 ROA Vol 1 of 2, pp 63-64; Defendants First Amended Plea To The Jurisdiction , P1 ¶ 1.1 ( The Texas Physician Assistant Board issued the Order which revoked his license.) 14 ROA Vol 1 of 2 , pp 72-73 15 Form “Request to Docket Case”, Case Number XXX-XX-XXXX.PA, Appendix Document 4. 24 The Texas Medical Board has admitted to having the responsibility to
regulate physician assistants and the PAB. In their publication, known as
“Texas Medical Board Agency Strategic Plan - Fiscal Years 2009-201316
they state on page 8 paragraph 1 that :
“Although the Texas Medical Board’s name and identity are based in the regulation of physicians, the agency regulates multiple licenses related to health care. Major responsibilities include the Physician Assistant Board…” (emphasis added)
They go on to state on paragraph 3 that :
“The Texas Medical Board’s statutory responsibilities and authority are based in 18 chapters of the Occupations Code. The Medical Practice Act, which governs the regulation of the practice of medicine, includes …..The Physician Assistant Licensing Act is Chapter 204,. “(emphasis added)
The defendants continue to state on page 8 , paragraph 2 that:
“ TMB currently regulates over 59,000 physicians, 4,215 physician assistants, ….“(emphasis added)
Consequently, for the reasons stated hereinabove Mr. Perez decision
to sue the Texas Medical Board instead of the Physician Assistant Board
(PAB) was completely and totally proper.
Moreover, the PAB is merely is an advisory Board to the Texas State
Board of Medical Examiners17. The PAB is a subdivision or bureau of the
16 https://www.tmb.state.tx.us/idl/7D87F4DD-5EBB-384B-338B-917DFBDC990A The document state on page 1 “This document, created and produced in-house at TMB….” 17 Texas Occupation Code Sect. 204.051 25 Texas Medical Board18.The Texas Administrative Code , Title 22, Part 9
show the state agencies that have statewide jurisdiction19 , the PAB is not
listed there.
The trial courts are required to determine who the real parties in
interest are20. A party is a real party in interest when it is "directly and
personally concerned in the outcome of the litigation to the extent that his
participation therein will insure 'a genuine adversary issue between the
parties21 . The defendants have not, and cannot, present any evidence
showing that the Texas Medical Board is not the real party in interest.
II
SOVEREIGN IMMUNITY DOES NOT BAR A SUIT TO CHALLENGE OR RESTRAIN AN AGENCY ORDER OR ACTION THAT IS BEYOND THE AGENCY’ S CONTITUTIONAL AUTHORITY
Administrative decisions may be attacked in court if they adversely
affect, as here22, a vested property right or otherwise violate some
18 Texas Administrative Code , Title 22, Part 9, Chapter 185 19 Cf. Smith v Tarrant County Bail Bond Board, 997 SW 2d 870 (Tex App Dist 2 – 1999), see also Texas Government Code 2003.001(4) (A); 2001.003 (7), 20 State ex rel Caldwell v. Allstate Insurance Co., 536 F.3d 418 (5th Cir. 07/18/2008) 21 Id, citing Land O'Lakes Creameries v. La. State Bd. of Health, 160 F. Supp. 387, 388 (E.D. La. 1958) and United States v. Johnson,319 US 302, 304 (1943)). 22 ROA, Vol 1 of 2, pp 14-17; 24-26; 80-82; 112-113; 118-120; 159-161 26 provision of the State or Federal Constitution23 The right to challenge
administrative actions by an original action in district court on the basis
that such actions unconstitutionally deprive the plaintiff of a vested
property right is a right to judicial review distinctly different from the
right to judicial review given by a statute24. A vested right is a property or
legal right, which the Constitution protects like any other property25.
The following vested property rights are being adversely affected26:
. The physician assistant profession existed at common law27. At
common law Texans had the right to earn a living practicing medicine
subject only to medical malpractice litigation28. At common law physician
assistants had a right to have the Constitution applied as originally
intended by the voters29 . Specifically at common law, Constitutional
provisos could only be amended pursuant to Constitutional Amendment30.
23 ElderCare Properties, Inc. v. Texas Department of Human Services, 63 S.W.3d 551 (Tex. App. Dist.3 12/06/2001) citing U.S. Const. amend. XIV; Tex. Const. art. I, § 19; 24 Continental Casualty Insurance Co. v. Functional Restoration Associates, 19 S.W.3d 393, 19 S.W.3d 393 (Tex. 04/06/2000) ; Bank of Woodson v. Stewart, 632 S.W.2d 950, 956 (Tex. App.- Austin 1982), dism'd as moot, 641 S.W.2d 230 (Tex. 1982); 25 Satterfield v. Crown Cork & Seal Co., Inc., 268 S.W.3d 190 (Tex. App. Dist.3 08/29/2008) quoting Middletown v. Texas Power & Light Co., 185 S.W. 556, 560 (Tex. 1916). 26 ROA Vol 1 of 2, pp 13-16 27 Tatro v. Texas,703 F.2d 823, 832 (5th Cir. 1983) 28 FN 51 29 ROA Vol 1 of 2 pp 41-42; Jones v. Ross, 173 S.W.2d 1022, 1024 (Tex. 1943); see also Travelers Ins. Co. v. Marshall, 76 S.W.2d 1007, 1011-12 (Tex. 1934) (meaning of constitution does not change with circumstances to make a different rule in a case seem desirable). 30 State v. Thomas, 766 SW 2d 217, 220 (Tex. 1989) ; Texas Constitution Article 17, § 1 27 At common law, only the district courts could revoke the right to
Practice a profession pursuant to the Medical Practice Act31 and the
Separation of Powers Doctrine32.
At common law a “certificate of qualification or “license” meant that
the practitioner graduated from an accredited university33. At common
law a “certificate of qualification” or “license” meant that the practitioner
was to be left alone unless he committed malpractice34. At common law ,
the only police power affecting the medical profession was Texas
Constitution Article XVI, § 3135.
31 Mann v. Texas State Board Medical Examiners , 403 SW 2d 218 (Texas Appellate Austin) affirmed 413 S.W.2d 382, (03/29/67) quoting Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686, 690 (Tex. Sup. 1964) 32 In re State Bd. for Educator Certification, No. 13-0537, , at *17-18 (Tex. Dec. 19, 2014) citing see Tex. Const. art. II, § 1 . 33 In The State v. James A. Goldman the Texas Supreme Court ruled that once a medical practitioner has shown, as here, that he graduated from an accredited university he was to be left alone unless he commits malpractice. The State v James A. Goldman, 44 Tex. 104 (1875)
The Texas Supreme Court ruled therein :
“When a party has received the degree of “Doctor of Medicine” from an established and well- accredited college, no matter where he go throughout the state or whatever may have been its date , he is not required to produce any other evidence of his qualification. So when he has been examined by an authorized Board of Medical examiners and has received a certificate of qualification33, he is not required to undergo a subsequent examination, nor furnish at any time any other additional prove of his qualifications.” 34 id 35 A.R. Logan v. The State, 5 Texas Court Of Appeals 306 (Tyler-1878) In A.R. Logan v. The State, Mr. Augustus R. Logan was indicted for practicing medicine without a certificate of qualification from the Board Of Medical Examiners. The Court of Appeals dismissed the indictment because Article XVI, Section 31 had not yet gone into effect. 28 Ex post facto laws were null and void36.Trials were de novo, just as if
the administrative proceeding had not occurred37. Physician assistants had
a right to have a neutral magistrate determine if there was probable
cause38. The State Office Of Administrative Hearing failed or refused to
find probable cause39. The burden of proof in sustaining the order was
then upon the administrative agency40. Questions of fact were then
resolved in a district court by the jury pursuant to the preponderance of
the evidence standard of proof41. Appeals automatically set aside the
administrative Order and the practitioner could continue practicing
medicine42 until the district court affirmed the judgment of the
administrative agency43.
The defendants have not, and cannot, identify the statute(s) in effect in
1994 which removed those vested property and legal rights from
36 Robinson v. Crown Cork & Seal Co., 335 SW 3d 126, 147 (Tex. 2010) (Robinson v. Crowncork & Seal Co., Inc., No. 06-0714 (Tex. 10/22/2010) . 37 Mann v. Texas State Board Medical Examiners , 403 SW 2d 218 (Texas Appellate Austin) affirmed 413 S.W.2d 382, (03/29/67) 38 US Constitution Fourth Amendment ; Texas Constitution Article 1 , § 9; 39 Appendix Document 5 FN 2 40 State Bd. of Medical Examiners v. Mann, 413 S.W.2d 382, [Tex. 1967] quoting Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686, 690 (Tex. Sup. 1964) 41 Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686, 690 (Tex. Sup. 1964), supra 42 Texas State Board Medical Examiners v. Haney , 472 S.W.2d 550 (Tx App –Austin - (10/27/71) Latham v. Security Insurance Co. of Hartford, 491 SW 2d 100 (Tex. 1972); (State Bd. of Medical Examiners v. Mann, 413 SW 2d 383 [Tex. 1967]; 43 Hull v. Texas State Board Public Accountancy, 434 SW 2d 387 (Tx App. – Houston- (11/06/68) 29 physician assistants. The defendants have not, and cannot, identify the
basis for asserting that Mr. Perez waived his vested rights as identified
herein. The defendants have not, and cannot, identify the legal basis for
concluding that Mr. Perez cannot challenge the Constitutionality of the
statutes which adversely affect his rights44. The defendants have not, and
cannot, claim that Mr. Perez committed an act which constitutes medical
malpractice or which endangered or injured the public45. The Defendants
have not , and cannot, show that the Texas Constitution has been
amended in order to deprive him of the aforementioned rights. The
Defendants have not, and cannot, claim that Mr. Perez is, somehow
excluded from the Texas’ doctrine of stare decisis46.
Once the right to practice medicine is lawfully acquired, it is a right
protected by the due process clauses of the state and federal
44 Cleveland Board of Education v. Loudermill.,470 US 532 , 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985) ; Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 456-457 (1988). 456-57 45 ROA Vol 1 of 2, pp 80-81 City of Houston v. Johnny Frank's Auto Parts, 480 SW 2d 774 (Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.). quoting Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513 (1921) ; Francisco v. Board of Dental Examiners, 149 S.W.2d 619, 622 (Tex. Civ. App. -- Austin 1941, writ ref'd) (quoting Waller v. State, 68 S.W. 2d 601, 605 (Tex. Civ. App. -- Amarillo 1934, writ ref'd)). 46 Black v. 7-Eleven Convenience Stores, 03-12-00014-CV, 03-12-00015-CV (Tex.App. Dist.3 03/07/2014) citing Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964) 30 constitutions47 and can only be revoked as shown herein. 48
The Federal49 and the Texas50 Constitutions protect vested rights. The
Fourteenth Amendment, §1 provides, among other things, that a State
may not abridge "the privileges or immunities of citizens of the United
States" or deprive "any person of life, liberty, or property, without due
process of law."51
Since the right of the citizen to use his property as he chooses so long
as he harms nobody, is an inherent and constitutional right, the police
power cannot be invoked for the abridgment of a particular use of private
property, unless such use reasonably endangers or threatens the public
health, the public safety, the public comfort or welfare52. A law which
47 Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686, 690 (Tex. Sup. 1964), citing Vernon's Ann.St.Const. art. 1, § 19; U.S.C.A.Const. amend. 14. Francisco v. Board of Dental Examiners, 149 S.W.2d 619 (Tex.App. 03/05/1941); Paul v. Davis,424 US 693, 710-11 (1976). 48 Texas Vending Comm. v. Headquarters Corp., 505 SW 2d 402 (Tex. Civ. App. – Austin - 1974, writ ref'd n.r.e.) quoting Scott v. Texas State Board of Medical Examiners, supra.; 49 Vartelas v. Holder, 132 S.Ct. 1479 (U.S. 03/28/2012) quoting Landgraf v. USI Film Products, 511 US 244, 263 (1994) and several provisions of the Constitution, among them, the Ex Post Facto Clause, the Contract Clause, and the Fifth Amendment's Due Process Clause. 50 Robinson v. Crowncork & Seal Co., Inc., No. 06-0714 (Tex. 10/22/2010) citing article I, section 16 of the Texas Constitution; Ex parte Abell, 613 S.W.2d 255, 260 (Tex. 1981)); McCain v. Yost, 284 S.W.2d 898, 900 (Tex. 1955). 51 McDonald v. City of Chicago, Illinois, No. 08-1521 (U.S. 06/28/2010) quoting District of Columbia v. Heller, 554 US 570 (2008). 52 Barber v. Texas Dept. of Transportation, 49 S.W.3d 12 (Tex.App. Dist.3 04/05/2001)(The right to acquire and own property, and to deal with it and use it as the owner chooses, so long as the use harms nobody, is a natural right. It does not owe its origin to constitutions. It existed before them. It is a part of the citizen's natural liberty-an expression of his freedom, guaranteed as inviolate by every American Bill of Rights); City of Houston v. Johnny Frank's Auto Parts, 31 assumes to be a police regulation but deprives the citizen of the use of his
property under the pretense of preserving the public health, safety,
comfort or welfare, when it is manifest that such is not the real object and
purpose of the regulation, will be set aside as a clear and direct invasion
of the right of property without any compensating advantages53.
Accordingly, Mr. Perez respectfully demands the vested property and
legal rights identified hereinabove. The vested rights identified herein are
well known to Defendant Mari Robinson, Esq ; she acted without legal
authority and had a ministerial duty to abstain from transgressing upon
the same54.
III
SOVEREIGN IMMUNITY DOES NOT BAR A SUIT PURSUANT TO 2001.038 TO CHALLENGE OR RESTRAIN AN AGENCY’ S RULE THAT IS BEYOND THE AGENCY’ S CONTITUTIONAL AUTHORITY
On or about March 7th, 201455 the Defendants adopted new
administrative rules of general applicability. One new rule defines
480 SW 2d 774 (Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.). quoting Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513 (1921). 53 Id, see also Cooley, Const.Lim. 248 54 Kobza v. Kutac, 109 S.W.3d 89 (Tex.App. Dist.3 05/30/2003) quoting Downing v. Brown, 935 SW 2d 112, 114 (Tex. 1996) 55 ROA Vol 2 of 2 pp 70-73 (Defendant’s Exhibit A is a statement or declaration against interest therefore admissible evidence, Conner v. Johnson, No. 2-03-316-CV (Tex. App. Dist.2 10/28/2004) citing Tex. R. Evid. 803(24) 32 “administrative default” as those instances where a litigant challenges (a)
the agency’s institutional competence to resolve the particular type of issue
presented, such as the constitutionality of a statute; (b) the adequacy of the
agency procedure and (c) the agency authority to grant the type of relief
requested56.
The newly adopted second rule allows the agency to revoke the right to
earn a living to those who the agency deems are guilty of an “administrative
default” as defined above even though there has been no finding that the
individual is a danger to the health and welfare of the citizens57.
Subsequently, relying upon those newly adopted administrative Rules
the Defendants deprived and/or seized Mr. Perez’ right to earn a
livelihood.58
The Administrative Procedure Act (APA) PA defines a "rule" as
56 But the Third District Court of Appeals and the US Supreme Court have ruled that litigant have a right to do so, Mitz v. Texas State Board of Veterinary Medical Examiners, 278 S.W.3d 17 (Tex.App. Dist.3 11/14/2008) citing Texas State Bd. of Pharm. v. Walgreen Tex. Co., 520 SW 2d 845 (Tex. App.--Austin 1975, writ ref'd n.r.e.) , McCarthy v. Madigan, 503 US 140, 146-48 (1992)) 57 Barber v. Texas Dept. of Transportation, 49 S.W.3d 12 (Tex.App. Dist.3 04/05/2001)(The right to acquire and own property, and to deal with it and use it as the owner chooses, so long as the use harms nobody, is a natural right. It does not owe its origin to constitutions. It existed before them. It is a part of the citizen's natural liberty-an expression of his freedom, guaranteed as inviolate by every American Bill of Rights); City of Houston v. Johnny Frank's Auto Parts, 480 SW 2d 774 (Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.) quoting Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513 (1921). 58 ROA , Vol 1 of 2, pp 4-5, 18, 19 , 21, 33, 34, 35, 53; Vol 2 of 2 pp 61-62, 70-73 (Defendant’s Exhibit “A” is a statement or declaration against interest therefore admissible evidence, Conner v. Johnson, No. 2-03-316-CV (Tex.App. Dist.2 10/28/2004) citing Tex. R. Evid. 803(24) 33 follows59: “ A state agency statement of general applicability that : (i)
implements, interprets, or prescribes law or policy; or (ii) describes the
procedure or practice requirements of a state agency; (B) includes the
amendment or repeal of a prior rule; and (C) does not include a statement
regarding only the internal management or organization of a state agency
and not affecting private rights or procedure.").
The March 7th, 2014 ruling is not a “contested case” because the
Texas Supreme Court has ruled that at common law a “certificate of
qualification or “license” meant that the practitioner graduated from an
accredited university60. That at common law a “certificate of
qualification” or “license” meant that the practitioner was to be left alone
unless he committed malpractice61. At common law , the only police
power affecting the medical profession was Texas Constitution Article
XVI, § 3162. The Defendants have failed or refused to allege that Mr.
59 Texas Dep't of State Health Servs. v. Balquinta, 429 SW 3d 726, 747 (Tex. App-Austin 2014, pet. filed);Tex. Gov't Code § 2001.003(6) 60 In The State v. James A. Goldman the Texas Supreme Court ruled that once a medical practitioner has shown, as here, that he graduated from an accredited university he was to be left alone unless he commits malpractice. The State v James A. Goldman, 44 Tex. 104 (1875) 61 id 62 A.R. Logan v. The State, 5 Texas Court Of Appeals 306 (Tyler-1878) In A.R. Logan v. The State, Mr. Augustus R. Logan was indicted for practicing medicine without a certificate of qualification from the Board Of Medical Examiners. The Court of Appeals dismissed the indictment because Article XVI, Section 31 had not yet gone into effect. 34 Perez committed medical malpractice.
The March 7th, 2014 ruling is not a “contested case” because at common
law, only the district courts could revoke the right to practice a medical
profession pursuant to the Medical Practice Act63 .
The March 7th, 2014 ruling is not a “contested case” because it does not
include the mandatory “concise and explicit statement of the underlying
facts supporting the findings”64. The Defendants failure or refusal to
disclose the underlying facts constitute reversible error. 65
The March 7th, 2014 ruling is not a “contested case” because at
common law the supervising physician was legally responsible for the
medical acts delegated to physician assistant. In 1983, the Fifth Circuit
ruled that :
“a person licensed to practice medicine shall have the authority to delegate to any qualified and properly trained person or persons acting under the physician's supervision any medical act which a reasonable and prudent physician would find is within the scope of sound medical judgment to delegate if, in the opinion of the delegating physician, the act can be properly and safely performed by the person to whom the medical act is delegated and the act is performed in its customary manner, not in violation of any other statute, and the person does not hold himself out to the public as being authorized to practice medicine. The delegating
63 Mann v. Texas State Board Medical Examiners , 403 SW 2d 218 (Texas Appellate Austin) affirmed 413 S.W.2d 382, (03/29/67) quoting Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686, 690 (Tex. Sup. 1964) 64 Railroad Commission of Texas v. WBD Oil & Gas Co., 104 S.W.3d 69 (Tex. 02/13/2003)citing § 2001.141 65 Gibson v. Texas Municipal Retirement System, 683 SW 2d 882 (Tex. App.--Austin 1985, no writ) citing Bay City Federal Savings and Loan Ass'n. v. Lewis, 474 SW 2d 459 (Tex. 1971); 35 physician shall remain responsible for the medical acts of the person performing the delegated medical acts.” (emphasis added)
On August 24th, 1990 , the Texas Medical Board admitted that
Physicians had the common law right to delegate medical acts to physician
assistants66 and that The delegating physician remained responsible for
the medical acts of the person performing the delegated medical acts.”
(emphasis added)67 who had graduated from a program accredited by the
Committee on Allied Health Education and Accreditation of the Council on
Medical Education of the American Medical Association68 or a person who
has passed the examination given by the National Commission on the
Certification of Physician Assistants69.
The March 7th, 2014 ruling is not a “contested case” because a
“contested case” within the meaning of the US Constitution includes, inter
alia, the right to confront , and compel the attendance of , adverse
witnesses 70. But see Texas Occupational Code § 164.007(c), it prevents a
66 Texas Register, Volume 15, Number 65, Pages 4941 , August 24, 1990 citing 22 TAC 190. 67 Id citing 22 TAC 185.4 68 Texas Constitution Article 16 § 31. Practitioners of Medicine : The Legislature may pass laws prescribing the qualifications of practitioners of medicine in this State, and to punish persons for mal-practice, but no preference shall ever be given by law to any schools of medicine. 69 Id citing §185.2 70 Payne v. Texas State Board of Medical Examiners, No. 03-07-00558-CV (Tex.App. Dist.3 03/12/2009); Rector v. Texas Alcoholic Beverage Commission, 599 S.W.2d 800, (Tex. 1980); Wolff v. McDonnell, 418 US 539, 559 (1974). 36 medical provider , like Mr. Jose A. Perez , from confronting or cross
examining adverse witness71.
The March 7th, 2014 ruling is not a “contested case” because none
of the statutes referenced by the Defendants were in effect in 1994. The
Texas72 Constitutions prohibit the application of any ex post facto law
which affect or impairs vested or legal rights .
The March 7th, 2014 ruling is not a “contested case” because before
demanding that Mr. Perez appear at the State Office of Administrative
Hearing or the Physician Assistant Board there should have been a judicial
or neutral determination of probable cause that the Mr. Perez was guilty of
an offense.73 The Fourth Amendment applies to the states through the
Fourteenth Amendment74. Assuming, arguendo, that the TMB has
administrative jurisdiction over Mr. Perez then Fourth Amendment applies
to administrative agencies75. Probable cause means that there is a fair
71 ROA Vol 2 of 2, pp 62 fn 1; In re Texas Medical Board, 315 S.W.3d 177 (Tex.App. Dist.6 06/01/2010); see also the website of the organization known as “Texans for Patients' & Physicians' Rights” , Mission Statement, http://www.txppr.com/index.cfm 72 Subaru of Am., Inc. v. David McDavid Nissan, Inc. 84 S.W.3d 212, 219 (Tex. 2002) citing Tex. Const. art. I, § 16. 73 Texas Department of Public Safety v. Caitlin Elizabeth Adkins, No. 11-10-00298-CV; (Tex.App. Dist.11 08/16/2012) citing State v. Woodard, 341 SW 3d 404, 411 (Tex. Crim. App. 2011) ); US Constitution Fourth Amendment; Texas Constitution Article 1§ 9. 74 Mapp v. Ohio, 367 US 643 , 367 US 643, 655 (1961), 75 United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (U.S. 01/23/2012) citing Katz v. United States, 389 US 347 , 351 (1967), Club Retro LLC v. Hilton, 568 F.3d 181 (5th Cir. 05/06/2009)Marshall v. Barlow's, Inc.,436 US 307, 312-313, 56 L. Ed. 2d 305, 98 S. Ct. 1816 (1978) 37 probability that an offense has been committed76. At the time the State
Office Of Administrative Hearings dismissed the TMB’s complaint it had
made no findings of probable cause77.
The TMB has not, and cannot allege that there was a patient-physician
assistant relationship between the alleged informer and Jose A. Perez.
Texas Courts have ruled that a physician is under no legal obligation to
practice his profession or render services to whomsoever may request
them78. They have also ruled that a physician is not to be penalized for
arbitrarily refusing to respond to a call of a person even urgently in need of
medical or surgical assistance provided that the relation of physician and
patient does not exist at the time the call is made or at the time the person
presents himself for treatment79. The mere fact that a doctor is "on call"
does not in itself impose any duty80.
The Appellees/defendants have not and can not claim that Mr. Perez was
under contract to perform services for the benefit of the informer81.The
76 Probable cause means reasonable suspicion, viewed under the totality of the circumstances. Terry v. Ohio, 392 US 1, 22 (1968); Alabama v. White, 496 US 325, 328-331 (1990). 77 State Office Of Administrative Hearings , Order No. 14, May 8th, 2013, Appendix Document # 5 , FN 2 78 Holland St. John, M.D v. Marty Howard Pope and Sally Bates Pope, 901 S.W.2d 420 (Tex. 06/08/1995) ; Salas v. Gamboa, 760 S.W.2d 838, 840 (Tex.App.--San Antonio 1988, no writ) quoting Childs v. Weis, 440 S.W.2d 104, 107 (Tex. Civ. App.--Dallas 1969, no writ). 79 . Id. See 61 Am. Jur. 2d Physicians and Surgeons § 14, 158. 80 St. John, 901 S.W.2d at 424. 81 Lopez v. Aziz, 852 S.W.2d 303, 306 (Tex. App.--San Antonio 1993, no writ). 38 Appellees/defendants have not, and cannot, identify the statute or
administrative rule which identifies the steps a medical provider must take
in order to refuse to treat a patient while avoiding behavior which can be
construed as “unprofessional or dishonorable conduct that is likely to
deceive, defraud or injure the public”.
A rule that is not properly promulgated under mandatory APA
procedures is invalid82. The Defendants have not, and cannot, claim that the
rules have been promulgated.
The March 7th, 2014 Ruling obviously "implements, interprets, or
prescribes law or policy," reflecting the Board's construction and
application of Rules § §187.27, 185.17(3) & (9). Secondly, the statement
also impact private rights and not merely internal agency management or
organization.
The Defendants’ March 7th, 2014 ruling, somehow, concluded, that Mr.
Perez’ numerous complaints, motions and Constitutional objections were
not meritorious83, within the meaning of Rule §187.27(b)(3)(C). It also
construed Rule §187.27(b)(3)(C) as authorizing revocation of Mr. Perez’
82 Texas State Board of Pharmacy v Witcher, 447 SW 3d 520 (3rd DCA- October 31, 2014) citing El Paso Hosp. Dist. v. Texas Health & Human Servs. Comm'n, 247 S.W.3d 709, 714 (Tex. 2008); APA § 2001.035(a); 83 Hamilton v. Washington, NO. 03-11-00594-CV (3rd DCA - December 23, 2014 Mitz v. Texas State Bd. of Veterinary Med. Exam'rs, 278 SW 3d 17, 22 (Tex. App.-Austin 2008, pet. dism'd) (agencies have no power to determine the constitutionality of statutes) 39 right to earn a living , the absence of corroborating underlying facts
notwithstanding.
Considering the foregoing, Mr. Perez respectfully submits that
construing the Board's policy as a "rule" is consistent with the Supreme
Court's instruction that the intent of the agency be considered , the
prescriptive nature of the policy, and the context in which the agency
statements were made.84
Although an "'agency is not bound to follow its decisions in contested
cases in the same way that a court is bound by precedent, an agency is
required by courts to explain its reasoning when it appears to the reviewing
court that an agency has departed from its earlier administrative policy or
there exists an apparent inconsistency in agency determinations85.
In conclusion, Section 2001.038 of the Administrative Procedure Act
allows a party to seek declaratory relief challenging the "validity or
applicability of a rule86 if it is alleged, as here, that the rule or its threatened
84 Combs v. Entertainment Publications, Inc., 292 S.W.3d 712 (Tex.App. Dist.3 06/12/2009) citing Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 443 (Tex. 1994)). 85 Austin Chevrolet, Inc. v. Motor Vehicle Bd., 212 S.W.3d 425, 438 (Tex. App.-Austin 2006, pet. denied) (quoting Flores v. Employees Retirement Sys. of Tex., 74 S.W.3d 532, 533-34 (Tex. App.-Austin 2002, pet. denied)). 86 "Texas law recognizes the right to judicial review of an administrative order when the same adversely affects a vested property right, and/or (3) the order otherwise violates constitutional rights" General Servs. Comm'n v. Little-Tex Insulation Co.,39 SW 3d 591, 599 (Tex. 2001); City of Sherman v. Pub. Utility Comm'n of Texas, 643 SW 2d 681, 686 (Tex. 1983). 40 application interferes with or impairs, or threatens to interfere with or
impair, a legal right or privilege of the plaintiff87.
IV
FAILURE TO SUE AN ESSENTIAL PARTY IS A NON- JURISDICTIONAL DEFECT WITHIN THE MEANING OF, INTER ALIA, GOVERNMENT CODE 2001.176 AND RULE 39, TRCP
In their “Defendants’ Brief In Support of Their First Amended Plea to
the Jurisdiction “ the Defendants claimed that the Trial Court lacked subject
matter jurisdiction over all Mr. Perez’ claims” because Mr. Perez failed to
sue the Physician Assistant Board88.
The Defendants must prove that the Texas legislature has clearly
indicated that failure to sue the Physician Assistant Board (PAB) is
jurisdictional89. They have failed or refused to do so.
In their “Defendants’ Brief In Support of Their First Amended Plea to
the Jurisdiction “ the Defendants claim that the Trial Court lacks subject
87 The Third District Court of Appeals has interpreted this section as a waiver of sovereign immunity, Texas Dep't of State Health Servs. v. Balquinta, 429 S.W.3d 726, 744 (Tex. App.- Austin 2014, pet. filed); Combs v. Entertainment Publ'ns, Inc., 292 SW 3d 712, 720 (Tex. App.-- Austin 2009, no pet.) see Texas Logos, L.P. v. Texas Dep't of Transp., 241 S.W.3d 105, 123 (Tex. App.-Austin 2007, no pet.) (holding that "section2001.038 is a grant of original jurisdiction and, moreover, waives sovereign immunity"). 88 ROA Vol 1of 2, p 174 - Defendants’ Brief In Support of Their First Amended Plea to the Jurisdiction P 4, II A. 89 Scott v. Presidio I.S.D., 266 S.W.3d 531 (Tex.App. Dist.3 08/28/2008); citing Zenith Star Ins. Co. v. Wilkerson, 150 S.W.3d 525, 533 (Tex. App.--Austin 2004, no pet.); 41 matter jurisdiction over all Mr. Perez’ claims” because Mr. Perez failed to
sue the Physician Assistant Board90. A "defect of parties" refers to joinder
problems involving necessary or indispensable parties91. A complaint of
"defect of parties" must be raised by verified objection pursuant to Rule
93(4), Tex. R. Civ. P. 92. The Defendants failed or refused to file a verified
objection accordingly they forfeited the issue93.
In their Defendants’ Brief In Support of Their First Amended Plea to the
Jurisdiction “ the Defendants claim that the Trial Court lacks subject matter
jurisdiction over all94 Mr. Perez’ claims” because Mr. Perez failed to sue the
Physician Assistant Board (PAB) 95 as allegedly required by 2001.176. But
the Third District Court of Appeals has ruled that such a failure is not
jurisdictional96.
90 ROA p 174 - Defendants’ Brief In Support of Their First Amended Plea to the Jurisdiction P 4, II A. 91 IN Re Clifford Hall, NO. 14-14-00062-CV , (14th DCA - May 28, 2014) citing CHCA E. Houston, L.P. v. Henderson, 99 SW 3d 630, 633 (Tex. App.-Houston [14th Dist.] 2003, no pet.). 92 In re Clifford Hall, supra citing Allison v. Nat'l Union Fire Ins. Co., 703 SW 2d 637, 638 (Tex. 1986) (per curiam). 93 id 94 ROA p 174- Mr. Perez’ failure to add the PAB as a party is the only occasion in which the defendants claimed that the Court lack subject matter jurisdiction over all his claims. 95 ROA p. 174; Defendants’ Brief In Support of Their First Amended Plea to the Jurisdiction P 4, II A. 96 Sierra Club v. Tex. Natural Res. Conservation Comm'n, 26 SW 3d 684, 688 (Tex. App.- Austin 2000) (holding that section 2001.176(b)(2)'s service requirement is not jurisdictional under Dubai ), aff'd on other grounds, 70 SW 3d 809, 811, 814-15 (Tex. 2002) 42 At any rate, failure to join an essential party is no longer a jurisdictional
defect97. Once a person’s or entity’s absence is identified as being needed for
a just adjudication of the claims before the court, the current version of Rule
39 directs that the trial court "shall order that he be made a party."98
Accordingly , the trial court erred when it dismissed the complaint
because Mr. Perez did not sue the PAB.
V
THE DOCTRINE OF EXCLUSIVE JURISDICTION DOES NOT APPLY, WHERE , AS HERE , (a) THERE ARE CONSTITUTIONAL CLAIMS, AND (b) THE AGENCY HAS ALREADY MADE A FINAL DECISION
The Defendants claimed that the trial court had no jurisdiction because
the PAB has exclusive jurisdiction99. The Exclusive or primary jurisdiction
does not require dismissal where, as here, there are Constitutional and Title
42 Claims100. Nor , where as, here, the agency has already made the final
decision on the issue101 .
97 Kodiak Resources, Inc. v. Smith, No. 09-10-00362-CV (Tex.App. Dist.9 02/16/2012) citing Cooper v. Tex. Gulf Indus., Inc., 513 SW 2d 200, 203-04 (Tex. 1974); Behzad Khalilnia v. Federal Home Loan Mortgage Corporation, No. 01-12-00573-CV (Tex.App. Dist.1 03/21/2013) 98 Kodiak Resources, Inc. and Bbx Operating, L.L.C v. Patricia Ann Smith, Beverly Lee Smith Sunday, Melody Koch, Keith, No. 09-10-00362-CV (Tex.App. Dist.9 02/16/2012) 99 ROA Vol 1 of 2, p. 174; Defendants’ Brief In Support of Their First Amended Plea to the Jurisdiction P 4, II A. 100 Gutierrez v. Laredo Independent School Dist., 139 S.W.3d 363 (Tex.App. 05/12/2004); Tex. Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 SW 2d 88, 90 FN3 (Tex. 1992) 101 Railroad Comm'n v. ARCO Oil & Gas Co., 876 SW 2d 473, 478 (Tex. App.-Austin 1994, writ denied) ; ( Cypress-Fairbanks Indep. Sch. Dist. v. Texas Educ. Agency, 797 S.W.2d 336, 342-43 (Tex. App.-Austin 1990) 43 VI
ASSUMING, ARGUENDO, THAT THE PAB HAS EXCLUSIVE ADMINISTRATIVE JURISDICTION THE SAME IS VOID PURSUANT TO TEXAS EX POST FACTO STATUTES
The Texas Constitutions prohibits the application of ex post facto laws102.
A retroactive statute violates the Constitutions if, when applied, it takes
away or impairs vested rights acquired under existing law103.
The Texas Medical Board seeks to impose administrative penalties
pursuant to ex post facto laws. The facts show that Mr. Jose A. Perez
presented his academic credentials to the Texas Medical Board, and the
same were accepted on , September 22nd, 1994, 21 years ago. The Texas
Physician Assistant Board ’s administrative jurisdiction104 began , and the
amended licensing act105 became effective , on Sept. 1, 1999.
In their administrative complaint the TMB now106 claims that it has the
authority to revoke Mr. Perez “license”, pursuant to Texas
102 ROA pp 24-26 Abigail Elizabeth Young v. the State of Texas, No. 14-10-00646-CR (Tex.App. Dist.14 01/10/2012) citing U.S. Const.. art. I, ' 10, cl. 1; Tex. Const. art. I, ' 16. 103 Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212 (Tex. 06/27/2002); Ex parte Abell, 613 S.W.2d 255, 260 (Tex. 1981); McCain v. Yost, 284 S.W.2d 898, 900 (Tex. 1955). A vested right is a property right, which the Constitution protects like any other property. Middletown v. Texas Power & Light Co., 185 S.W. 556, 560 (Tex. 1916). 104 § 204.051. TEXAS PHYSICIAN ASSISTANT BOARD. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999 105 § 204.001. SHORT TITLE. This chapter may be cited as the Physician Assistant Licensing Act. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. 106 Initially the TMB was seeking to impose a $3000.00 penalty 44 Administrative Code , Title 22, Part 9, Chapter 190 , which became
effective in 2003.107.
The TMB claims that Mr. Perez violated , Texas Administrative Code
204.302(4) which purportedly penalizes “unprofessional or dishonorable
conduct that is likely to deceive, defraud or injure the public” and which
became effective 5 years AFTER Mr. Perez began practicing108. Mr.
Perez, adamantly, but respectfully objects. The Physician Assistant Board
‘s administrative jurisdiction began on September 1st, 1999.Texas
Administrative Code §185.17 became effective on November 3, 2002,
27 - TexReg 10027 ; Texas Occupations Code § 204.302 became effective
on September 1, 1999. Texas Occupations Code - Section 164.011(b) -
became effective on September . 1, 1999.
Secondly, the US109 and Texas110 Supreme Courts have ruled that “It is
the right of every citizen of the United States to follow any lawful
calling, business, or profession they may choose, subject only to such
restrictions determined by the state to be necessary for the health and
safety of its citizens111. The Texas Board of Medicine has not , and
107 The provisions of this §190.1 adopted to be effective November 30, 2003, 28 TexReg 10496; amended to be effective January 20, 2009, 34 TexReg 342 108 Acts 1999, 76th Leg., ch. 388, 1, eff. Sept. 1, 1999. 109 Dent v. State of W. Va.,129 US 114, 121-22 (1889) 110 Industrial Accident Bd. v. O'Dowd, 303 S.W.2d 763 (Tex. 1957)) 111 Dent v. State of W. Va.,, 129 U.S. 114 (1889), 45 cannot, claim that the matter before SOAH is related to the Texas Health
and Safety Code112. The Texas Department of Health (TDH) has exclusive
jurisdiction over all matters concerning the Health and Safety of
Texans113.
Furthermore, whether or not something is necessary is an issue of fact
for the jury which precludes summary judgment114.
VII
ASSUMING, ARGUENDO THAT FAILURE TO SUE AN ESSENTIAL PARTY IS JURISDICTIONAL THE DISMISSAL IS WITHOUT PREJUDICE
A dismissal with prejudice is improper when the plaintiff is capable of
remedying the jurisdictional defect115. Once a person’s or entity’s absence is
identified as being needed for a just adjudication of the claims before the
court, the current version of Rule 39 directs that the trial court "shall order
that he be made a party."116
112 2005 Texas Health & Safety Code Chapter 12. 113 2005 Texas Health & Safety Code § 12.001 Sec. 12.001. GENERAL POWERS AND DUTIES. (a) The board has general supervision and control over all matters relating to the health of the citizens of this state. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. 114 Zimmer v. Miller Trucking Co., 743 F.2d 601 (8th Cir. 09/13/1984) 115 Trevino v. State, 03-12-00060-CV (Tex.App. Dist.3 08/07/2013) citing Harris County v. Sykes, 136 S.W.3d 635 (Tex. 05/28/2004) 116 Kodiak Resources, Inc. and Bbx Operating, L.L.C v. Patricia Ann Smith, Beverly Lee Smith Sunday, Melody Koch, Keith, No. 09-10-00362-CV (Tex.App. Dist.9 02/16/2012) 46 VIII
A FEDERAL AND STATE “TAKINGS” OR “SEIZURE OF PROPERTY “ PROCEEDING APPLIES TO ALL SPECIES OF PROPERTY WITHOUT EXCEPTIONS OR LIMITATIONS
In the trial court the Defendants admitted that they deprived, and or seized,
Mr. Perez’ right to earn a living as a physician assistant without
compensation117. Nevertheless, they claimed that Mr. Perez failed to allege
any facts which would show that the legislature waived sovereign immunity.
The Defendants did not, and could not , allege that the abridgement and/or
seizure was necessary for the preservation of the health, safety, and
welfare of the public118.
Texas district courts are courts of general jurisdiction119. The Texas
Constitution states that the jurisdiction of a district court "consists of
exclusive, appellate, and original jurisdiction of all actions, proceedings, and
remedies, except in cases where exclusive, appellate, or original jurisdiction
117 ROA Vol 1 of 2, p 174 - Defendants’ Brief In Support of Their First Amended Plea to the Jurisdiction P 4, II A. 118 Barber v. Texas Dept. of Transportation, 49 S.W.3d 12 (Tex.App. Dist.3 04/05/2001) City of Houston v. Johnny Frank's Auto Parts, 480 SW 2d 774 (Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.). quoting Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513 (1921). 119 Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000). 47 may be conferred by this Constitution or other law on some other court,
tribunal, or administrative body120.
In Dubai, the supreme court noted that courts of general jurisdiction are
presumed to have subject-matter jurisdiction "unless a showing can be made
to the contrary121. The defendants failed or refused to show that the district
court had no jurisdiction over Mr. Perez’ complaint.
In the trial court , Defendants argued that sovereign immunity protect the
governmental entity from lawsuits for money damages122. In other words,
Defendants’ position is that absent a rare act of the Legislature, property
owners have no recourse to the courts when a state or local official
wrongfully invade or seize property rights on the government’s behalf.
That can not be the correct rule. As the Texas Supreme Court long ago
recognized , “if the present suit could not be maintained without legislative
consent, officials of the state would never have to condemn property
legally. They could simply appropriate it , and the property owner would be
entitled to no compensation unless the legislature granted him permission to
sue123.
120 id 121 id quoting 12 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3522 (1984)). 122 ROA p 174 123 Griffin v. Hawn, 341 SW 2d 151, 152 (Tex. 1960) 48 Fortunately , the 1876 conventioneers , the Texas Constitution and US
Supreme Court opinions124 hold that Defendants are not entitled to claim
immunity from Mr. Perez’ suit. First, under State v. Hale, 136 Tex. 29,146
SW 2d 731, 736. The Supreme Court of Texas speaking through Judge
Sharp said:
"The language used in Section 17 of Article 1 of the Constitution, supra, which says that no person's property shall be taken or damaged for public use without adequate compensation being made, has no exceptions or limitations attached thereto. It is a clear, definite statement of the rule which prevails in this State, which controls all the departments of the State government; and the liability for adequate compensation for private property taken or damaged for public use is not based upon the ground that the act of taking or damaging such property was done negligently or intentionally. * * *(emph added)
Article 1, Section 17, of the Texas Constitution, Vernon's Ann.St.
provides that "No person's property shall be taken, damaged or destroyed for
or applied to public use without adequate compensation being made, unless
by the consent of such person; * * *." Since there are no exceptions or
limitations attached to the constitutional provision, the State itself is not
exempt from its requirements125. Agencies created by the State are not
exempt126.
124 Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08- 1151 (U.S. 06/17/2010) citing Lucas v. South Carolina Coastal Council, 505 US 1003, 1019 (1992) 125 Brazos River Authority v. City of Graham, 335 SW 2d 247, 251 (Tex. Civ. App.--Fort Worth 1960), aff'd., 354 SW 2d 99 (1961). 126 id 49 If there is a taking or a seizure , the constitution requires payment, even
though the taking be for the purpose of promoting the public health, safety,
morals or welfare and, therefore, involves an exercise of the police
power127. Inverse condemnation proceedings apply when any type of
property128 – i.e., physical, intangible129, intellectual – is affected by a
governmental taking. Since 1922 it has been understood that a “regulatory
taking” constitutes a taking requiring compensation130.
Consequently , The Trial Court erred in dismissing Mr. Perez’ claims.
IX
MR. PEREZ OUGHT TO HAVE BEEN GIVEN LEAVE TO AMEND IN ORDER TO ALSO SUE MARIE ROBINSON IN HER INDIVIDUAL CAPACITY
A plea to the jurisdiction challenges a trial court's authority to decide the subject
matter jurisdiction of a specific cause of action131. State government employees
may be sued in their individual capacities for damages, declaratory or injunctive
127 San Antonio River Authority v. Garrett Brothers, 528 SW 266, 273 (Tex. Civ. App.--San Antonio 1975, writ ref'd n.r.e.). citing Brazos River Authority v. City of Graham, 335 S.W.2d 247, 251 (Tex. Civ. App.--Fort Worth 1960), aff'd., 354 SW 2d 99 (1961) 128 Renault v City of Houston , 415 S.W.2d 948 (10th DCA- 05/18/67) Lynch v. United States, 292 U.S. 571, 78 L. Ed. 1434, 54 S. Ct. 840. It also means this under the Texas Constitution. See G.C. & S.F. Ry. Co. v. Fuller, 63 Tex. 467, 469 (1885) 129 Nautilus , Inc. v Biosig Instruments, Inc. No. 13-369 (US Supreme Court - June 2, 2014) (patents) ; Kent , et al, v Dulles, 357 US 116 (U.S. 06/16/1958)(Right to travel) 130 Pennsylvania Coal Co. v. Mahon, 260 US 393 (1922), 131 Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004) 50 relief pursuant to 42 USC 1983132. Accordingly, Mr. Perez ought to have been
given leave to amend in order to also sue Ms. Marie Robinson in her individual
capacity133.
X
THE COURT ERRED IN DISMISSING MR. PEREZ’ ULTRA VIRES CLAIM AGAINST DEFENDANT MARI ROBINSON, JD IN HER OFFICIAL CAPACITY
A suit against a state official for acting outside her authority is not barred
by sovereign immunity134. In Heinrich, the Court affirmed the rule that
suits, as here, for declaratory or injunctive relief against a state official to
compel compliance with statutory or constitutional provisions are not suits
against the State135.
XI
MR. PEREZ OUGHT TO HAVE BEEN GIVEN LEAVE TO AMEND IN ORDER TO ALSO SUE MARIE ROBINSON IN HER INDIVIDUAL CAPACITY
132 Kentucky v. Graham, 473 U.S. 159, 165 (1985); Newman v. Bryan, 06-13-00063-CV (Tex.App. Dist.6 10/09/2013) citing Aguilar v. Frias, 366 SW 3d 271, 273 (Tex. App.—El Paso 2012, pet. denied) 133 ROA Vol 1 of 2 p 150; State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007); Miranda, 133 S.W.3d at 226-27. 134 ROA Vol 1 of 2, p 150; Texas Parks and Wildlife Department v. the Sawyer Trust, No. 07- 0945 (Tex. 08/26/2011) citing City of El Paso v. Heinrich, 284 S.W.3d 366, 370-74 (Tex. 2009) 135 Id citing Heinrich, 284 S.W.3d at 370-74. 51 A plea to the jurisdiction challenges a trial court's authority to decide the subject
matter jurisdiction of a specific cause of action136. State government employees
may be sued in their individual capacities for damages, declaratory or injunctive
relief pursuant to 42 USC 1983137. Accordingly, Mr. Perez ought to have been
given leave to amend in order to also sue Ms. Marie Robinson in her individual
capacity138.
XII
THE TRIAL COURT ERRED IN NOT ADJUDICATING WHETHER THE PROPERTY HAS BEEN TAKEN AND/OR SEIZED WITHIN THE MEANING OF US CONSTITUTION FOURTH AND FIFTH AMENDMENTS
The Fifth Amendment forbids takings in the form of government
regulations that effectively deprive a property of all economic value139.The
Takings Clause applies to the states140. Where a State provides an adequate
procedure for seeking just compensation, the property owner cannot claim a
violation of the Just Compensation Clause until it has used the procedure and
136 Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004) 137 Kentucky v. Graham, 473 U.S. 159, 165 (1985); Newman v. Bryan, 06-13-00063-CV (Tex.App. Dist.6 10/09/2013) citing Aguilar v. Frias, 366 SW 3d 271, 273 (Tex. App.—El Paso 2012, pet. denied) 138 ROA Vol 1 of 2, p 150-151; State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007); Miranda, 133 S.W.3d at 226-27. 139 Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08- 1151 (U.S. 06/17/2010) citing Lucas v. South Carolina Coastal Council, 505 US 1003, 1019 (1992). 140 Chicago, B & Q.R. Co. v. Chicago, 166 U.S. 226 (1897), 52 been denied just compensation.141
But the Williamson County ripeness doctrine "does not preclude state
courts from hearing simultaneously a plaintiff's request for compensation
under state law and a claim that, in the alternative, the denial of compensation
would violate the Fifth Amendment of the Federal Constitution.142
The Fourth Amendment, made applicable to the States by the Fourteenth
Amendment143, provides in relevant part that the "right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated . . . ." A "seizure" of property
occurs when "there is some meaningful interference with an individual's
possessory interests in that property144.
The Fourth Amendment applies to civil as well as criminal seizures145,
and the Supreme Court holds that an interference with individual property
rights may be found to breach more than one provision of the Constitution146.
141 Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195 (1985). 142 Town of Nags Head v. Toloczko, 12-1537 (4th Cir. 08/27/2013) citing San Remo Hotel, L.P. v. City & Cnty. of S.F., Cal.,545 US 323, 346 (2005). 143 Ker v. California, 374 U.S. 23, 30, 83 S.Ct. 1623, 1628 (1963), 144 Severance v. Patterson, 566 F.3d 490 (5th Cir. 04/23/2009) citing United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, (1984); Soldal v. Cook County, 506 U.S. 56, 61, 113 S.Ct. 538, 543 (1992). 145 Severance v. Patterson, 566 F.3d 490 (5th Cir. 04/23/2009) citing Freeman v. City of Dallas, 242 F.3d 642, 647 n.5 (5th Cir. 2001) (en banc), 146 Id citing United States v. James Daniel Good Real Property, 510 U.S. 43, 49-50, 114 S.Ct. 492, 499 (1993). 53 Separate claims for constitutionally unreasonable seizure and taking of
property may coexist147.
Further, the courts have ruled more than once that substantive due process,
procedural due process, equal protection and takings claims may be
implicated simultaneously in various types of governmental actions that
interfere with individual property rights148.
The Fourth and Fifth Amendments both provide specific constitutional
commands149. That they may have evolved through case law to overlap in
providing remedies for some deprivations of property interests does not
authorize the court to fail to apply one or the other provision150. Indeed, as
Presley noted, the elements of a violation of the two amendments differ, with
the touchstone of a takings claim being lack of just compensation and that of a
seizure claim being its unreasonableness151. Further, § 1983 authorizes
different damage measures for the claims152.
147 Id citing Presley v. City of Charlottesville, 464 F.3d 480, 487 (4th Cir. 2006). 148 Id citing Simi Inv. Co.. v. Harris County, 236 F.3d 240, 248-49 (5th Cir. 2000); John Corp. v. City of Houston, 214 F.3d 573, 584-85 (5th Cir. 2000). 149 id 150 id 151 Severance v. Patterson, 566 F.3d 490 (5th Cir. 04/23/2009) 152 City of Monterey v. Del Monte Dunes at Monterey, 526 U.S. 687, 119 S.Ct. 1624, 143 L.Ed.2d 882 (U.S. 05/24/1999) citing Heck v. Humphrey, 512 U. S. 477, 483 (1994) 54 XIII
THE DEFENDANTS EXHIBIT “A” IS INADMISSIBLE EVIDENCE
The Defendants submitted the Texas Physician Assistant Board “Default
Order” as exhibit “A”. Mr. Perez objected pursuant to Texas Rule of Evidence
401and 402 because the same is irrelevant.
The Defendants have failed or refused to show that they have the
Constitutional or statutory authority to revoke Mr. Perez right to work in his
chosen profession on a default basis153.
Furthermore, the document is inadmissible pursuant to Tex. R. Civ.
Evid. 803(6)) because the custodian of records did not testify that the same
was a record of regularly conducted business or activity and not prepared in
anticipation of litigation154.
XIV
THE DEFENDANTS EXHIBITS “B” THROUGH “H” ARE INADMISSIBLE EVIDENCE
Mr. Perez also objects to Exhibits B through E. Cause of Action No. D-1-
GN-12-000798 was a parallel action filed in the Austin District Court
153 Firstly, the board’s failure or refusal to disclose underlying facts constitutes reversible error, Gibson v. Texas Municipal Retirement System,683 SW 2d 882 (Tex. App.--Austin 1985, no writ) citing Bay City Federal Savings and Loan Ass'n. v. Lewis, 474 SW 2d 459 (Tex. 1971). 154 Sholdra v. Bluebonnet Sav. Bank, FSB, 858 SW 2d 533, 535 (Tex. App.-Fort Worth 1993, writ denied); 55 seeking a declaratory judgment and injunctive relief . Texas considers
parallel actions to be interlocutory in nature and not appealable155. The State
Court dismissed the Perez’ lawsuit because the administrative action was still
ongoing at the State Office of Administrative Hearings and therefore the
Travis County District Court and the Third District Court of Appeals lacked
subject matter jurisdiction pursuant to Texas Administrative Code
Sec. 2001.171156. If a court lacks jurisdiction over the subject matter , any
judgment rendered in that proceeding is void.157
Mr. Perez also objected to Exhibits F through H. Mr. Perez’ filed a
complaint for declaratory and injunctive relief in the United District Court
(USDC) in the Western District Of Texas. . The USDC and the US Court of
Appeals dismissed the complaint on June 25th , 2013 because they concluded
that Mr. Perez case was before the Physician Assistant Board and therefore
the Younger Abstention Doctrine deprived them of jurisdiction. If a court
lacks jurisdiction over the subject matter , any judgment rendered in that
proceeding is void.158
155 Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972); Pelt v. State Bd. of Ins., 802 S.W.2d 822, 827 (Tex. App.-Austin 1990, no writ); 156 § 2001.171. JUDICIAL REVIEW. 157 Travelers Ins. Co. v. Joachim, 315 SW 3d 860, 862 (Tex. 2010); First State Bank Central Texas v. Lakeway Regional Medical Center Development, LLC, 03-13-00058-CV (Tex.App. Dist.3 02/20/2014) 158 id 56 XV
MR. PEREZ OUGHT TO BE GRANTED LEAVE TO AMEND DEFECTIVE ALLEGATIONS OF JURISDICTION IN THE APPELLATE COURTS
Assuming arguendo, that Mr. Perez has failed to allege jurisdictional facts in the
trial court which would have shown that Texas has waived sovereign immunity,
Mr. Perez respectfully submits that, as to federal claims, he can amend defective
allegations of jurisdiction in the appellate courts pursuant to 28 USC § 1653159.
Concerning 28 USC 1653 The US Supreme Court has stated that :
“The "complaint" filed in the District Court, see n. 5, supra, nowhere mentioned § 1331 nor alleged the requisite amount in controversy. The facts alleged and the claim asserted nonetheless were sufficient to demonstrate the existence of a federal question. See C. Wright, Law of Federal Courts 290-291 (2d ed. 1970). And although a complaint under § 1331 is fatally defective unless it contains a proper allegation of the amount in controversy, see, e. g., Canadian Indemnity Co. v. Republic Indemnity Co., 222 F.2d 601 (CA9 1955), respondent now claims that the matter in controversy does exceed the requisite amount. Brief for Respondent on the Jurisdictional Issues 4-5. Defective allegations of jurisdiction may be amended, 28 U.S.C. § 1653. In view of our disposition of the case, however, no purpose would be served by requiring a formal amendment at this stage.” (emph. Added)
Mr. Perez fully understands that 28 USC 1653 does not apply to Texas
jurisprudence. But Mr. Perez respectfully submits that Texas jurisprudence, as
shown hereinbelow, has adopted the rationale used by Congress in adopting 28
USC 1653.
159 Schlesinger v. Councilman, 420 US 738, 744 n. 9, 95 S. Ct. 1300, 1306 n. 9, 43 L. Ed. 2d 591 (1975); Smith v. United States,502 F 2d 512 , 519-20 (5th Cir. 1974). 57 Firstly, the Texas Supreme Court has ruled that a litigant may raise
Constitutional Claims for the first time on appeal160.
Mr. Perez has a substantive right of adequate, effective, and meaningful access to
the courts161. The right is protected by, inter alia, (a) the First Amendment right to
petition for redress of grievances; (b) the fourteenth amendment guarantees of
procedural and substantive due process162; (c) the Fifth Amendment due process
clause163, (d) and the Fourteenth Amendment equal protection clause164.
Mr. Perez can raise the issue of subject matter jurisdiction for the first time on
appeal165. Hence, he should be able to amend defective allegations of jurisdiction
in the appellate courts pursuant to (a) Tex. Const. art. I, § 13166. The open courts
provision of the Texas Constitution provides: "All courts shall be open and every
person for an injury done him, in his lands, goods, person or reputation, shall have
160 City of Dallas v. Heather Stewart, No. 09-0257 (Tex. 01/27/2012 [a constitutional] claim may be asserted for the first time in the district court upon appeal of the agency order) citing 1 Beal , Texas Administrative Practice and Procedure § 9.3.1[c] 161 Jackson v. Procunier, 789 F.2d 307 (5th Cir. 05/09/1986) citing Bounds v. Smith, 430 US 817, 821, 97 S. Ct. 1491, 1494, 52 L. Ed. 2d 72 (1977). 162 id 163 Christopher v. Harbury, 536 US 403, 415 n.12 (2002) (noting that the Supreme Court has located the court access right in the Privileges and Immunities clause, the First Amendment petition clause, the Fifth Amendment due process clause, and the Fourteenth Amendment equal protection clause). 164 id 165 City of Houston v. Rhule, 12-0721 (Tex. 11/22/2013) quoting Univ. of Tex. Sw. Med. Ctr. at Dall. v. Loutzenhiser, 140 SW 3d 351, 358 (Tex. 2004)). 166 . Marino v. King, 355 SW 3d 629,634 (Tex. 2011) ("Constitutional imperatives favor the determination of cases on their merits rather than on harmless procedural defaults."); 166 Milestone Operating, Inc. v. ExxonMobil Corp., 388 SW 3d 307, 310 (Tex. 2012). A Rodriguez v. Bolanos, 04-12-00287-CV (Tex.App. Dist.4 05/29/2013) 58 remedy by due course of law." Tex. Const. art. I, § 13. This requirement
"guarantees that a common law remedy will not be unreasonably abridged167 .
Secondly, Mr. Perez respectfully submits that , as to all claims, he can amend
defective allegations of jurisdiction in the appellate courts pursuant to The Due
Process Clauses of the Texas Constitution and the Fourteenth Amendment to the
United States Constitution168 because in Texas an adjudication in the merits is
preferred169.
Mr. Perez respectfully submits that, as to all claims, he ought to be allowed to
amend defective allegations of jurisdiction in the appellate courts pursuant to Tex.
R. App. P. Tex.R. App. P. 38.7170 , Rule 33.1(d)171 and Rule 2172. In Majid vs
Hussain the Third District Court of Appeals stated :
“The rules further instruct us to construe the briefing requirements "liberally" and that "substantial compliance" is sufficient, as the point of having briefs in
167 Elizabeth Rivera , as next of friend for MR NO. 13-0096 August 22, 2014 ; citing Tex. Workers' Comp. Comm'n v. Garcia, 893 SW 2d 504, 521 (Tex. 1995). 168 Simmons vs Outreach Health Community Care No. 08-13-00204-CV (8th DCA - November 7, 2014) (." U.S Const. Amend. XIV, § 1. ;Tex.Const. art. I, § 19. 169 Milestone Operating, Inc. and Dstj, L.L.P v. Exxonmobil Corporation, No. 11-0647 (Tex. 10/26/2012) citing Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992). 170 Majeed v. Hussain, No. 03-08-00679-CV (Tex.App. Dist.3 10/22/2010) 171 Central Austin Apartments, LLC v. UP Austin Holdings, LP, NO. 03-13-00080-CV (3rd DCA- December 8, 2014) (In a nonjury case, a complaint regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on appeal in the complaining party's brief) 172 Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 12/04/1997) (we have instructed the courts of appeals to construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule citing Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex.1993); Marino v. King, 355 SW 3d 629,634 (Tex. 2011) ("Constitutional imperatives favor the determination of cases on their merits rather than on harmless procedural defaults.");
59 the first place is merely to "acquaint the court with the issues in a case and to present argument that will enable the court to decide the case" and not to impose formal requirements as ends in themselves. Id. R. 38.9. The rules further contemplate that appellate courts will afford parties the opportunity to cure any formal or substantive briefing defects before disposing of the appeal based on such a defect rather than the merits. See id.; see also Inpetco, Inc. v. Texas Am. Bank/Houston, 729 S.W.2d 300, 300 (Tex. 1987) (regarding parallel provisions of former appellate rules). Finally, "[a] brief may be amended or supplemented whenever justice requires, on whatever reasonable terms the court may prescribe." See Tex. R. App. P. 38.7.” (emph added) CONCLUSION
WHEREFORE Mr. Perez respectfully submits that the trial court judgment
be reversed and the case remanded.
Respectfully Submitted, ________/S/__Jose A Perez_____________ 34 Candle Pine Place The Woodlands, TX 77381 theaesculapius@gmail.com 281-673-0452
CERTIFICATE OF SERVICE
It is hereby certified that a copy of the foregoing “ Amended Plaintiff/Appellant’s Initial Appellant Brief “ was served by emailing a copy thereof via the State efiling system on this 7th Day of March 2015 to:
Ted A Ross, Esq Assistant Attorney General PO Box 12548 Austin, TX 78711-2548 ted.ross@texasattorneygeneral.gov Margaret.Evins@texasattorneygeneral.gov
60 Respectfully Submitted, _____/S/__Jose A. Perez_________________
TRAP 9.4(i)(3) CERTIFICATE OF COMPLIANCE
This brief was prepared with a conventional 14-point typeface, with footnotes
in12-point typeface. The computer program used to prepare this document
determined the word count to be 14,879 which includes all words contained in this
brief, excepting the cover page and index of authorities.
61 No. 03-14-00644-CV
IN TIlE TmRD COURT OF APPEALS AUSTIN, TEXAS
JOSE A. PEREZ
Appellant
Vs.
TEXAS :rv1EDICALBOARD and MARl ROBINSON JD, in her Official Capacity
Appellees.
Appeal from the 53rd Judicial District Court Travis County, Texas
Appellant's Amended Appendix
Jose A. Perez 34 Candle Pine Place The Woodlands, TX 77381 theaesculapius@gmail.com 281-673-0452 DOCUMENTS
1- September 18th, 2014 Final Judgment 2- September 5th, 2014 Order Granting the Defendant's Plea to the Jurisdiction 3- Correspondence From the Court dated July 3rd, 2014 4- Texas Medical Board Request to Docket Case XXX-XX-XXXX.PA 5- ALJ's Order Dismissing Case
CERTIFICATE OF SERVICE
It is hereby certified that a copy of the foregoing" Plaintifti'Appellant's Amended Appendix " was served by emailing a copy thereof via the State efiling system on this 7th Day of March 2015 to:
Ted A Ross, Esq Assistant Attorney General POBox 12548 Austin, TX 78711-2548 ted.ross@texasattorneygeneral.gov Margaret.Evins(a),texasattorneygeneral.gov
--~ /S/ Jose A. Perez ------------------- 8I(t4269 PG96
Notice sent: final ;••w-rIOCUtOfY None FiredIn The District Cour .,f Tf'3v;s County, Texas' .' DispParti-. _
~. " Dtsp code: CW I CLS _ .\, SEt' i ~ JF Redact pgs:,-------t~..-- Judge D~~ _ Clerk t\f CAUSE NO. D-I-GN-14-001171 ._-__ !~\)jri9U~: ·~II!Jii.1 cieri JOSE A. PEREZ, § IN THE DISTRICT COURT OF Plaintiff, § § v. § TRA VIS COUNTV~ TEXAS § TEXAS MEDICAL BOARD and § MARl ROBINSON., J.D., in ber § Official Capacity § Defendllnts. § 53RD JUDICIAL DISTRICf
FINAL JUDGMENT
Pursuant to the Court's order granting Defendants' Plea to the Jurisdiction. IT IS
HEREBY ORDERED ..ADJUDGED AND DECREED that all of Plaintiffs claims in the·
captioned proceeding are hereby dismissed with prejudice.
IT IS FURTHER ORDERED that all costs are taxed against Plaintiff.
Signed on this I <6 day of September, 2014.
Judge Presiding ~lZsellt Lit•.}! """tIll~,,~ e> DC D1sPPlII'I{es~-~:z. 0I5P~. @I'as 4u I Redact pgo: - ~_t.1cC)( t::AtL JOSE A. PEREZ_ PlaintitT. v. TRAVIS COUNTY. Tf.XAS TF.xAS MEDICAL BOARD. and MARl ROBINSON, in bcr official capacir.y. DefendanlS. 353111 JUDICIAl. DlSTRlCT
ORDER GRAN11NG DEfENDANTS' PI.EA TO THE JURISDICTION
Came 011 lOr oonsideralion the First Amended Plea 10 lbe: Jurisdiction of ~fendants Texas Medical Board and Marl Rubinson, After consiIkriRlt \be same: and lbe n:le\'anl pleadin~ and briefing 00 file herein. th~ Coon is ot'tlle opinion thai Defendants' Pica should be grnnu:d. IT IS THEREFORE ORDERED. ADJllOOED AND DECREED !hal Defendants' Fin:t Am~nded Plea to the Jurisdiction isGRANTED.
SIGNED on the U day of Seplcmher. 2014.
91 foiled ill Tr!c Distrk: (.v~l1t '-If Travil; CQunty. '!'e I(~!l:'
DARLENE BYRNE Judge (512) 85+-9~B JAMES FERRELL Court Clerk KATI' GALLAGHER PARKER (512) 85+5846 Staff Attomey (512) 85+4915 MEANEITE SALGADO Official Court Reporter RENE SALINAS 126TH DISTRICT COURT (512) 85-1-7848 Court Operations Officer (512) 85-1-9891 TRAVIS COUNTY COURTHOUSE P. O. BOX 1748 AUSTIN, TEXAS 78767 FAX: (512) 854--9780
July 3,2014
Mr. Ted A Ross Mr. Jose A. Perez Assistant Attorney General 34 Candle Pine Place Administrative Law Division The Woodlands, TX 77381 Office of the Attorney General Via Email: theaesculapius@gmail.com P.O. Box 12548 Austin, Texas 78711-2548 Via Facsimile: (512) 457"4674 and Via Email to: ted.ross@texasattorneygeneral.gov
Re: Cause No. D-I-GN-14-001172; Jose A. Perez us. Texas Medical Board; in the 53rd Judicial District, Travis County, Texas
Dear Mr. Ross and Mr. Perez:
The Court has received from Mr. Jose A Perez the attached "Motion to Adjudicate the Pending Motions by Written Submission". Accordingly, the Court would like to first adjudicate the Defendants' Plea to the Jurisdiction via written submission. At this time, the Court's review will be SOLELY limited to the plea to the jurisdiction. Defendant is requested to submit any further briefing or materials that Defendant wishes the Court to review on the issue of the Plea to the Jurisdiction by 5:00 p.m. Thursday, July 31, 2014. Plaintiff is requested to submit any responsive pleadings or material on the issue of the plea to the jurisdiction no later than 5:00 p.m. Thursday, August 28, 2014. After receiving a copy of Plaintiff's response, Defendant may file a reply to that response, but no later than 5:00 p.m. Friday, September 12, 2014. In addition to filing your briefing on this issue with the District Clerk's office, please provide courtesy copies to the Court via facsimile to (512) 854-9780, or via
61 email tomystaffattorneyatkaty.gallagher-parker@co.travis.tx.us. After all briefing has been received, the Court will consider this matter via written submission and the Court's Order will be forwarded to the parties.
Please let my staff attorney know if you have any questions.
Sincerely,
Darlene Byrne Judge, 126th District Court Travis County, Texas
Katy Gallagher Parker Staff Attorney, 1261h District Court Phone: (512) 854-4915 Fax: (512) 854-9780 kat\' .gallagher-parkeriIJco. travis. tx.US
xc: Ms. Amalia Rodriguez-Mendoza, District Clerk
62 Revised - 09109110) FOR SOAH USE ONLY (req.fml) pale comple" raquaet recetved by SOAH: Proceeding dele Nt by SOAH: 60AH Docket Number& type of case:
10-26-11 S03-12-1940.PA
PLEASE CHECK ACTION REQUESTED:"" o SETTING OFHEARING ~ ASSIGNMENTOF ALJ * 0 ALTERNAnVE DISPUTERESOLUOON(ADR}lMEDIATON* AGENCY'S REFERRING AGENCY NAME: Texas Medical Board AGENCY NO.: 503 FILEICASE NO.: :...P.:..,:A,_,~O..,.0:....:.1.:o:.31 _ NAMEISTYLE OF THE CASE: In the Matter of the Complaint Against Jose A Perez, PA DATE APPLICATION FILED AT AGENCY: 10/2612011 DOCKET NO. SUFFIX, if applicable: '-P.:..,:A.__ _ PROCEEDING DATE{S) REQUESTED (Include range of dates If possible): _
EXPECTED NUMBER OF HOURS (If less than a day) OR OAYS NEEDED FOR PROCEEDING: __ HOURS =2__ .DAYS
o ADMIN. RNE 0 GRIEVANCE 0 ENFORCEMENT 0 CONTRACTCLAIM (Gov'tCode 2260) 0 OTHER _
SPECIAl..NEEDS OR ACCOMMODATIONS: _
IF ADR REQUESTeD PLEASE DESCRIBE PROCESS NEEDED: _ o PREHEARING CONFERENCE REQUESTED 0 INTERPRETER NEEDED(See 1 TAC §155.407) o CASE ALE 0 HEARING IS CONFIDENTrAL (Specify applicable statute): and/or _
b.state.tx.us
PARTIES AND REPRESENTATIVES PARTY REPRESENTED BY: 0 SELF [8J ATTORNEY PARTY REPRESENTED BY: 0 SELF I8J ATTORNEY o OTHER. If so, relationship: o OTHER, If so, relationship:
REPRESENTATIVE'S NAME: Lee Bukstein REPRESENTATIVE'S NAME: Jose A Perez,PA PARTY'S NAME: TEXAS MEDICAL BOARD PARTY'S NAME: Jose A Perez, PA ADDRESS: 333 GUADALUPE, TOWER 3, SUITE 610 ADDRESS: 10223 Broadway, Suite 504 Austin. Texas 78701 Pearland, TX 77584 C>· ...~.~
PHONE No : 512-305-7079 PHONE No.: 281-746-4949 (Direct Phone Number Please) (Direct Phone Number Please)
Email Address:fee.bukstein@tmb.state.bc.us EmaU Address: theaesculaplus@gmall.com
FAX No.: 512-305-7007 FAX No.:
PLEASE LIST ADDITIONAL PARTIES AND/OR REPRESENTATNES ON EXTRA FORM PROVIDED. SEND TO: STATE OFFICE OF ADMINISTRATIVE HEARINGS AnN.: DeputyClerk PostOfficeBox 13025 WilliamP. ClementsBuilding OR Austin. Texas78711-3025 300 West 15th Street. Suite504 DocketingPhone No. (512) 475-3445 Austin,Texas78701 Fax No.(512)322-2061 ·PLEASE FORWARD A COpy OF THE APPLICATION, APPEAL, OR COMPLAINT WITH THIS REQUEST FORM, AS WELL AS ANY OTHER PLEADING FILED IN THE CASE TO DATE IF REQUESTING ASSIGNMENT OF AU or AL rEBNATIVE DISPUTE RESOLUTION (ADR)IMEDIATION, A COpy OF THE NOTICE OF PROCEEDING MUST BE FORWARDED TO SOAH AT THE SAME TIME IT IS MAILED TO THE PARTIES. SOAB DOCKET NO. SOJ-12-1940.PA
TEXASPHYSICIAN ASSISTANTBOARD, § BE~RETHESTATEOFnCE Petitioner § § v. § OF § JOSE A. PEREZ, P.A.-C, § Respoadent § ADMINISTRATIVE HEARINGS
ORDER NO. 14 ORDER DISMISSING CASE
This matter came to be heard on April 24, 2013, before Administrative Law Judge (AU) Catherine C. Egan. Staff Attorney Lee Bukstein appeared on behalf of the Texas Physician Assistant Board. Respondent Jose A Perez, P.A-C did not appear and was not represented at the hearing. After admitting and reviewing Staff's Exhibits 1-6, the AU found that Staff provided adequate notice to the Respondent of the hearing, the AU granted Staff's Motion for Default,'
Therefore, it is ORDERED that this matter is DISMISSED from the State Office of Administrative Hearings docket on a default basis. Tex. Admin. Code § 15S.50I? The file is being returned to the Board for informal disposition on a default basis. Tex. Gov't Code § 2001.056.
SIGNED May 8,2013.
I Staffs Exhibit 6 is the Notice of Hearing dated March 19. 2013. sent certified mailing to Respondent at his last known address. and was signed for on behalf of Respondent on March 21. 2013. :1 The ALJ only reviewed the adequacy of the notice and not the sufficiency of the factual allegations.
Jose A. Perez v. Texas Medical Board and Mari Robinson, JD, in Her Official Capacity (Jose A. Perez v. Texas Medical Board and Mari Robinson, JD, in Her Official Capacity) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.