ACCEPTED 03-14-00644-CV 4794406 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/7/2015 3:38:41 PM JEFFREY D. KYLE CLERK NO. 03-14-00644-CV _____________________________________________________________ FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS THIRD DISTRICT OF TEXAS 4/7/2015 3:38:41 PM AUSTIN, TEXAS JEFFREY D. KYLE Clerk _____________________________________________________________
JOSE A. PEREZ, Appellant, v.
TEXAS MEDICAL BOARD, et al., Appellees. ____________________________________________________
On Appeal from the 53rd Judicial District Court of Travis County, Texas No. D-1-GN-14-001172 ____________________________________________________
APPELLEES’ BRIEF IN RESPONSE TO APPELLANT’S AMENDED BRIEF ____________________________________________________
KEN PAXTON TED A. ROSS Attorney General of Texas Assistant Attorney General State Bar No. 24008890 CHARLES E. ROY OFFICE OF THE TEXAS ATTORNEY First Assistant Attorney General GENERAL ADMINISTRATIVE LAW DIVISION JAMES E. DAVIS P.O. Box 12548 Deputy Attorney General for Austin, Texas 78711-2548 Civil Litigation Telephone: (512) 475-4191 Facsimile: (512) 457-4674 DAVID A. TALBOT, JR. Email: ted.ross@texasattorneygeneral.gov Chief, Administrative Law Division Attorneys for Texas Medical Board and Mari Robinson
ORAL ARGUMENT NOT REQUESTED April 7, 2015 TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
RECORD AND PARTY REFERENCES .................................................................v
ARGUMENT .............................................................................................................2
I. INTRODUCTION. ................................................................................2
II. WHETHER OR NOT THE TMB IS “THE REAL PARTY IN INTEREST” IS IMMATERIAL. ..........................................................3
III. PEREZ’S (NEW) SOVEREIGN IMMUNITY ARGUMENT LACKS MERIT. ...................................................................................5
IV. PEREZ’S (NEW) RULE CHALLENGE ARGUMENT IS NOT AT ISSUE IN THIS APPEAL. .............................................................6
V. PEREZ’S (NEW) EXCLUSIVE JURISDICITON ARGUMENT LACKS MERIT. ...................................................................................7
VI. DISMISSAL WITH PREJUDICE WAS PROPER. .............................8
VII. PEREZ’S “LEAVE TO AMEND” ARGUMENT LACKS MERIT. ...8
CONCLUSION AND PRAYER ...............................................................................9
CERTIFICATE OF COMPLIANCE .......................................................................10
CERTIFICATE OF SERVICE ................................................................................10
ii INDEX OF AUTHORITIES
Cases Gutierrez v. Laredo Indep. School Dist., 139 S.W.3d 363 (Tex. App.— San Antonio 2004, no pet.) ..............................................................................7
Lower Laguna Madre Found., Inc. v. Tex. Nat. Res. Conservation Comm’n, 4 S.W.3d 419 (Tex. App.—Austin 1999, no pet.) ...........................................7
Presidio Indep. School Dist. v. Scott, 309 S.W.3d 927 (Tex. 2010) .........................5
R.R. Comm’n of Tex. v. ARCO Oil & Gas Co. 876 S.W.2d 473 (Tex. App.—Austin 1994, writ denied)...........................................................7
Scally v. Tex. State Bd. of Med. Examn’rs, 351 S.W.3d 434 (Tex. App.—Austin 2011, pet. denied) ...........................................................6
Scott v. Presidio I.S.D., 266 S.W.3d 531 (Tex. App.—Austin 2008, pet. granted) .....................................................................................................5
Tex. Dep’t of Ins. v. Reconveyance Servs. Inc., 306 S.W.3d 259 (Tex. 2010) ..........9
Tex. Educ. Agency v. Cypress-Fairbanks I.S.D., 830 S.W.2d 88 (Tex. 1992) ..........7
Wilmer-Hutchins Indep. School Dist. v. Sullivan, 51 S.W.3d 293 (Tex. 2001) ........3
Statutes
Tex. Occ. Code § 164.007(c) .....................................................................................6
Tex. Occ. Code § 204.101 .........................................................................................3
Tex. Occ. Code § 204.106 .........................................................................................4
Tex. Occ. Code §§ 204.151-.157 ...............................................................................3
Tex. Occ. Code §§ 204.201-3209 ..............................................................................3 iii Tex. Occ. Code §§ 204.251-.255 ...............................................................................4
Tex. Occ. Code §§ 204.301-.318 ...............................................................................4
Tex. Occ. Code §§ 204.351-.353 ...............................................................................4
Tex. Occ. Code §§ 204.001-.353 ...............................................................................3
Tex. Occ. Code §§ 205.001-.458 ...............................................................................4
Tex. Occ. Code § 205.102 .........................................................................................4
iv RECORD AND PARTY REFERENCES
References to the clerk’s record will be “CR ____.”
References to the supplemental clerk’s record will be “Supp. CR ____.”
Appellees, the Texas Medical Board and Mari Robinson, will be collectively referred to as the “TMB” unless otherwise specified.
Appellant, Jose A. Perez, will be referred to as “Perez.”
v NO. 03-14-00644-CV _____________________________________________________________
IN THE COURT OF APPEALS THIRD DISTRICT OF TEXAS AUSTIN, TEXAS _____________________________________________________________
JOSE A. PEREZ, Appellant, v.
TEXAS MEDICAL BOARD, et al., Appellees. ____________________________________________________
On Appeal from the 53rd Judicial District Court of Travis County, Texas No. D-1-GN-14-001172 ____________________________________________________
APPELLEES’ BRIEF IN RESPONSE TO APPELLANT’S AMENDED BRIEF ____________________________________________________
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
Appellees, the Texas Medical Board and Mari Robinson, (collectively
“TMB”), by and through the Office of the Attorney General of Texas and the
undersigned Assistant Attorney General, submits the following brief in response to
Appellant’s Amended Brief filed on March 9, 2015.
1 ARGUMENT
I. INTRODUCTION.
Perez sought leave to file an amended brief because he claimed that he was
prejudiced by the TMB’s filing of a supplemental clerk’s record after his initial brief
was filed. See Perez “Amended Motion to Abate and Amend Appellate Brief.”
The supplemental clerk’s record contained the following documents:
(1) Perez’s original petition; (2) the TMB’s Plea to the Jurisdiction, Original Answer
and General Denial, and Affirmative Defenses, filed on May 23, 2014; (3) the
TMB’s First Amended Plea to the Jurisdiction, filed on August 8, 2014; (4) the
TMB’s brief in support of its First Amended Plea to the Jurisdiction, filed on August
13, 2014; and (5) designation of clerk’s record, court docket record, court cost record
and clerk’s record page. Suppl. CR 2. The primary purpose of filing the
supplemental record was to ensure that the TMB order from which Perez appealed
to the district court was before the Court. Suppl. CR 70. There is nothing in the
supplemental clerk’s record which raises any new factual or legal issues in this
appeal. Perez was served with all of the pleadings in the supplemental record on the
date they were filed. That includes the TMB order revoking his license. However
instead of addressing any new issues raised by the material in the supplemental
clerk’s record (of which there are none), Perez’s amended brief contains new
2 arguments that he could have raised in his original brief. In any event, those
arguments will be briefly addressed below.
II. WHETHER OR NOT THE TMB IS “THE REAL PARTY IN INTEREST” IS IMMATERIAL.
In his supplement brief, Perez claims that he sued the correct “real party in
interest” (the TMB) because the “TMB has admitted to having the responsibility to
regulate physician assistants and the (Texas Physician Assistant Board) PAB.”
Amended Br. at 25-26. In support, he cites to selected pages from the TMB’s
“Agency Strategic Plan” for Fiscal Years 2009-2013. Perez’s selected quotations
from that document are irrelevant to whether or not the district court had subject
matter jurisdiction; it is well-settled law that parties to a suit cannot confer
jurisdiction where none exists. Wilmer-Hutchins Indep. School Dist. v. Sullivan, 51
S.W.3d 293, 295-96 (Tex. 2001). Nothing can change the fact that the licensing and
discipline of physician assistants is under an entirely different statutory scheme than
that of the Medical Practice Act. See Texas Physician Assistant Licensing Act
(“PALA”), Tex. Occ. Code §§ 204.001-.353. See also, e.g., Tex. Occ. Code
§ 204.101 (powers and duties of the PAB); § 204.151-.157 (PAB exclusively
responsible for issuing licenses to physician assistants); § 204.201-3209 (PAB
exclusively responsible for regulating the practices of licenses physician assistants);
§ 204.251-.255 (PAB exclusively responsible for complaints and investigations
3 related to licensed physician assistants); §§ 204.301-.318; .351-.353 (PAB
exclusively responsible for the discipline of licensed physician assistants).
In addition, the PALA requires the physician assistant board to “develop and
implement policies (subject to the advice and approval of the TMB) that clearly
separate the policy-making responsibilities of the physician assistant board and the
management responsibilities of the executive director and the staff of the medical
board.” Tex. Occ. Code § 204.106. This is further evidence that the legislature, in
adopting both licensing acts, intended the two boards to have separate jurisdictional
responsibilities.
To follow Perez’s argument to its logical conclusion would mean that the
district court would have had jurisdiction even if Perez had sued, say, the Texas State
Board of Acupuncture Examiners (which obviously has nothing to do with the
licensing or discipline of physician assistants). The acupuncture licensing act, like
the PALA, has the same requirement regarding separating the policy-making
responsibilities of the acupuncture board and the TMB. Tex. Occ. Code § 205.102.
Moreover, acupuncturists are licensed and disciplined under separate statutory
schemes. See Tex. Occ. Code §§ 205.001-.458.
Perez goes on in his amended brief to claim that the TMB “must prove that the
Texas Legislature has clearly indicated that failure to sue the . . . PAB is
jurisdictional.” Perez Am. Br. at 41 (emphasis original). The TMB has in fact 4 established that Perez’s failure to sue the PAB is in fact a statutory prerequisite to
suit.
Perez’s reliance on Scott v. Presidio I.S.D., 266 S.W.3d 531 (Tex. App.—
Austin 2008, pet. granted) is misplaced.1 The court in that case simply re-stated the
well-settled principle that a statutory prerequisite to suit affecting only venue is not
jurisdictional. 266 S.W.3d at 535-36.
The bottom line is that the separate statutory schemes delineating the powers
and responsibilities of the TMB and PAB are clearly indicative of the fact that a
failure to sue the correct entity in a suit for judicial review is indeed jurisdictional.2
III. PEREZ’S (NEW) SOVEREIGN IMMUNITY ARGUMENT LACKS MERIT.
In his amended brief, Perez argues several constitutional issues. See Amended
Br. at 26-32; 52-54. As discussed in the TMB’s original brief, Perez’s constitutional
claims are part of the statutory prerequisites for judicial review. Therefore, because
the district court lacked subject matter jurisdiction over his suit for judicial review
1 Presidio was reversed on other grounds. Presidio Indep. School Dist. v. Scott, 309 S.W.3d 927 (Tex. 2010). 2 Perez’s misplaced reliance on Sierra Club is discussed in the TMB’s initial brief at 10-11. See Perez Am. Br. at 42. 5 because he sued the wrong statutory entity, the court lacked jurisdiction over the
constitutional claims as well. See TMB Br. at 11-13.3
IV. PEREZ’S (NEW) RULE CHALLENGE ARGUMENT IS NOT AT ISSUE IN THIS APPEAL.
Section III of Perez’s amended brief begins with a purported rule challenge
under the Texas Administrative Procedure Act (“APA”). See, e.g., Perez Amended
Br. at 39. Perez did not plead an APA rule challenge in his petition for judicial
review. Suppl. CR 3-51. The validity of any TMB rule is therefore not an issue in
this appeal.
Equally irrelevant to this appeal is Perez’s claim that he was deprived of due
process because § 164.007(c) of the Medical Practice Act (which doesn’t even
apply) prevents him from confronting or cross-examining adverse witnesses. Perez
Am. Br. at 36-37. However, he in fact waived his right to confront and cross-
examine witness in a contested case proceeding by steadfastly refusing to participate
in the entire disciplinary process, despite having received all notices required by law.
Suppl. CR 70, ¶ 3; 71, ¶ 8.
3 Perez seems to assert a claim that “common law,” and not the PALA, governs his license. See, e.g., Perez Amended Br. at 27-28. That is obviously not true. The PALA was enacted pursuant to “the state’s power to impose conditions upon the granting or revocation of the license for the protection of society.” Scally v. Tex. State Bd. of Med. Examn’rs, 351 S.W.3d 434, 446 (Tex. App.—Austin 2011, pet. denied). The constitutionality of the act has never been in question.
6 V. PEREZ’S (NEW) EXCLUSIVE JURISDICITON ARGUMENT LACKS MERIT.
Perez’s argument that that the doctrine of exclusive jurisdiction does not apply
where constitutional claims have been asserted, or where the agency has already
made a final decision, is also meritless. Perez Br. at 43. The Gutierrez case he cites
held that an aggrieved party is not required to exhaust administrative remedies where
the Commissioner of Education lacks jurisdiction. Gutierrez v. Laredo Indep.
School Dist., 139 S.W.3d 363, 366 (Tex. App.—San Antonio 2004, no pet.), citing
Tex. Educ. Agency v. Cypress-Fairbanks I.S.D., 830 S.W.2d 88, 90-91 (Tex. 1992).
That is not the issue in this appeal. Perez cannot dispute the fact that the PAB had
exclusive jurisdiction over his disciplinary proceeding in the first instance, and it
was that agency that issued the default order which is the subject of this case.
Gutierrez is therefore distinguishable.
Equally irrelevant is the primary jurisdiction doctrine discussed in R.R.
Comm’n of Tex. v. ARCO Oil & Gas Co. 876 S.W.2d 473 (Tex. App.—Austin 1994,
writ denied). It again cannot be disputed that the PAB had both exclusive and
primary jurisdiction over Perez’s administrative proceeding.4
4 The ARCO case in fact involved the reasoned justification doctrine as it applies to APA rule challenges, and the case was later superseded by statute. See Lower Laguna Madre Found., Inc. v. Tex. Nat. Res. Conservation Comm’n, 4 S.W.3d 419, 425 (Tex. App.—Austin 1999, no pet.).
7 Perez’s argument also ignores the fact that constitutional claims are part of
the statutory prerequisites for judicial review. The fact that he failed to sue the
proper entity—itself a statutory prerequisite—precludes all of his constitutional
claims. See TMB Br. at 11-13.
VI. DISMISSAL WITH PREJUDICE WAS PROPER.
Perez’s claim that the dismissal of his suit should have been without prejudice
is premised on the mistaken assumption that his failure to sue the PAB was a defect
of parties and not jurisdictional. This argument is incorrect for the reasons discussed
above and in the TMB’s initial brief. See TMB Br. at 6-11.
VII. PEREZ’S “LEAVE TO AMEND” ARGUMENT LACKS MERIT.
Perez claims that he should have been granted leave to amend to add Mari
Robinson in her official capacity as a party defendant. Perez Am. Br. at 50-51. He
in fact did name her as a party in his original petition. Suppl. CR 3. Yet, he did not
allege any ultra vires actions on her part and he did not seek leave to amend in the
district court. Id. at 3-51. See also TMB Br. at 15-17. Ultra vires claims are barred
when a court lacks subject matter jurisdiction in a suit where the plaintiff only sues
a governmental entity and does not sue an official in his or her official capacity. See
8 Tex. Dep’t of Ins. v. Reconveyance Servs. Inc., 306 S.W.3d 259-60 (Tex. 2010). The
dismissal with prejudice was therefore proper.5
CONCLUSION AND PRAYER
For the foregoing reasons and as discussed in its original brief, the TMB
respectfully requests that this Court affirm the district court’s final judgment
granting TMB’s Plea to the Jurisdiction.
Dated: April 7, 2015.
Respectfully submitted,
KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
JAMES E. DAVIS Deputy Attorney General for Civil Litigation
DAVID A. TALBOT, JR. Division Chief, Administrative Law Division
5 Perez’s argument that he should have been granted leave to amend to assert jurisdictional facts under federal law are equally baseless. Perez Am. Br. at 57-60. Whether or not constitutional claims may be raised for the first time on appeal of a federal district court case has nothing to do with satisfying jurisdictional prerequisites to suit under the APA and Texas jurisprudence. 9 /s/ Ted A. Ross Ted A. Ross Assistant Attorney General State Bar No. 24008890 OFFICE OF THE TEXAS ATTORNEY GENERAL ADMINISTRATIVE LAW DIVISION P. O. Box 12548 Austin, Texas 78711-2548 Telephone: (512) 475-4191 Facsimile: (512) 457-4674 Email: ted.ross@texasattorneygeneral.gov Attorneys for Appellees Texas Medical Board and Mari Robinson
CERTIFICATE OF COMPLIANCE
I hereby certify compliance with Texas Rules of Appellate Procedure 9 and that there are 1,727 words in this document. Microsoft Word was used to prepare this filing and calculate the number of words in it.
/s/ Ted A. Ross Ted A. Ross Assistant Attorney General
CERTIFICATE OF SERVICE
I hereby certify that, in compliance with Rule 9.5 of the Texas Rules of Appellate Procedure, a true and correct copy of the above and foregoing document has been served on the following on this the 7th day of April 2015:
Jose A. Perez, pro se Via: Electronic Mail and 34 Candle Pine Place CMRRR #7007 0220 0000 5721 3952 The Woodlands, Texas 77381 Email: theaesculapius@gmail.com /s/ Ted A. Ross Ted A. Ross Assistant Attorney General