ACCEPTED 03-14-00644-CV 4872647 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/13/2015 8:46:24 PM JEFFREY D. KYLE CLERK No. 03-14-00644-CV
FILED IN 3rd COURT OF APPEALS __________________________________________________________________ AUSTIN, TEXAS 4/13/2015 8:46:24 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 Reply Brief
Jose A. Perez 34 Candle Pine Place The Woodlands, TX 77381 theaesculapius@gmail.com 281-673-0452
Oral Argument Waived 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 TABLE OF CONTENTS
Identity of Parties and Counsel..................................................................................2
Table of Contents.......................................................................................................3
Index of Authorities...................................................................................................3
Summary of the Argument ......................................................................................7
Argument .................................................................................................................8
Prayer ......................................................................................................................18
Certificate of Service ..............................................................................................18
Tex R. App. P. 9.4(i)(3) Certificate of Compliance………………………………18
Index Of Authorities
Cases
Amarillo Oil Co. v. Energy-Agri Prods., Inc., 794 S.W.2d 20, 26 (Tex. 1990)…………………………………………………16
Aguilar v. Frias, 366 SW 3d 271, 273 (Tex. App.—El Paso 2012, pet. denied)…………………17
A.R. Logan v. The State, 5 Texas Court Of Appeals 306 (Tyler-1878)……………………………………..14
California Utilities Commission v. United States, 355 U.S. 534, 540, 2 L. Ed. 2d 470, 78 S. Ct. 446 (1958)………………………..11
Chandler v. Miller, 520 U. S. 305, 308 (1997)………………………………………………………13 City of Beaumont v. Bouillion, 896 S.W.2d 143, 148 (Tex. 1995)………………………………………………15
Cox v. Robison, 150 S.W. 1149, 1151 (Tex. 1912)………………………………………………14
Damico v. California, 389 U.S. 416, 19 L. Ed. 2d 647 , 88 S. Ct. 526 (1967)(per curiam)…………….16
ElderCare Properties, Inc. v. Texas Department of Human Services, 63 S.W.3d 551 (Tex. App. Dist.3 12/06/2001)…………………………………11
Hamilton v Washington, NO. 03-11-00594-CV (3rd DCA - December 23, 2014)………………………...17
Jones v. Ross, 173 S.W.2d 1022, 1024 (Tex. 1943)……………………………………………15
Kentucky v. Graham, 473 U.S. 159, 165 (1985)……………………………………………………….17
Gutierrez vs. Portfolio Recovery Associates, LLC, NO. 03-13-00311-CV (3rd DCA- February 26, 2015)…………………………...9
McNeese v. Board of Educ., Community Unit Sch. Dist. 187, 373 U.S. 668, 670- 71, 10 L.Ed.2d 622, 83 S.Ct. 1433, (1963)………………………………………..16
Newman v. Bryan, 06-13-00063-CV (Tex.App. Dist.6 10/09/2013)………………………………..17
Railroad Commission of Tex. v. WBD Oil & Gas Co., 104 S.W.3d 69 (Tex. 2003)…………………………………………………….10
Republican Party of Texas v. Dietz, 940 S.W.2d 86, 91 (Tex. 1997)…………………………………………………14
Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248 (Tex. 1999)……………………………………………………10 Satterfield v. Crown Cork & Seal Co., Inc., 268 S.W.3d 190 (Tex.App. Dist.3 08/29/2008)…………………………………15
Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686, 690 (Tex. Sup. Ct - 1964)……………………………………12
Schulz v. Schulz, 726 S.W.2d 256, 258 (Tex. App.--Austin 1987, no writ)………………………...9
State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007)………………………………………………17
Southern Ohio Coal Co. v. Donovan, 774 F.2d 693 (6th Cir. 10/02/1985) …………………………………………….11
Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686, 690 (Tex. Sup. Ct - 1964) …………………………………...12
Spann v. City of Dallas, 111 Tex. 350, 235 SW 513, 514 (1921)………………………………………12
Tatro v. Texas, 703 F.2d 823 (5th Cir. 04/25/1983)……………………………………………..18
Travelers Ins. Co. v. Marshall, 76 S.W.2d 1007, 1011-12 (Tex. 1934)…………………………………………15
Texas Department of Insurance v. Reconveyance Services, Inc. 306 S.W.3d 256 (Tex. 2010)……………………………………………………..11
Texas Education Agency v Cypress Fairbanks, 830 S.W.2d 88 (May 6, 1992) …………………………………………………...16
Texas State Board of Pharmacy v. Witcher, 447 S.W.3d 520 (3rd DCA - October 31, 2014)………………………………10
The State v James A. Goldman, 44 Tex. 104 (1875)…………………………………………………………….12 Thomas v. Long, 207 SW 3d 334, 340 (Tex-2006)…………………………………………………17
WBD Oil & Gas Company v. Railroad Commission of Texas, 35 S.W.3d 34, 35 S.W.3d 34 (Tex.App. 02/04/1999) ………………………….16
Westheimer ISD v. Brockette, 567 SW 2d 780 , 785 (Tex. 1978)………………………………………………..9
Williams v. Castleman, 247 S.W. 263, 265 (Tex. 1922)…………………………………………………14
World Co. v. Dow, 116 Tex. 146, 287 S.W. 241, 243 (Tex. Comm'n App.1926, opinion adopted)….9
US Constitution
Fourth Amendment…………………………………………………………...13
US Statutes
42 USC 1983…………………………………………………………………...17
Texas Constitution
Article XVI, Section 31……………………………………………………13, 14
art. I, § 2………………………………………………………………………...14
Texas Statutes
ultra vires act………………………………………………………………….17
Tex.Rev.Civ.Stat.Ann. art. 4495b § 3.07(i) (Vernon Supp. 1982-1983)…………………………………………………….12
Texas Rules of Civil Procedure
Tex. R. Civ. P. 45……………………………………………………………….9 Tex. R. Civ. P. 47……………………………………………………………….9
Miscellaneous
Black's Law Dictionary 311 (6th ed. 1990)…………………………………….14
Kenneth C. Davis, Administrative Law Treatise § 19.01, at 373 (1972)……….16
Separation of Powers under the Texas Constitution , Texas Law Review, Vol 68, #7, June 1990, by Harold H. Bruff, Esq, Law Professor, University of Texas…...15
STATEMENT REGARDING ORAL ARGUMENT
Mr. Perez waives Oral Argument .
SUMMARY OF THE ARGUMENT
(a) Mr, Perez pled in his initial complaint at the trial court the validity of
the TMB Rule which purportedly allows the agency to revoke – by
default – the right to work as a physician assistant;
(b) Mr. Perez did not waive his right to confront and cross examine
witness witnesses by merely seeking a declaratory judgment;
(c) Mr. Perez has a constitutional and common law right to have the
Constitution applied as intended by the voters in 1876;
(d) The doctrine of exclusive jurisdiction does not apply where, as here,
a party asserts constitutional claims and the administrative agency has
entered a final decision;
(e) Dismissal with prejudice was improper (f) Mr. Perez leave to amend argument in order to add Mari Robinson , in
her individual capacity, is meritorious’
ARGUMENT
I
MR. PEREZ PLED THE VALIDITY OF THE TMB RULE WHICH PURPORTEDLY ALLOWS THE AGENCY TO REVOKE - BY DEFAULT – THE RIGHT TO WORK AS PHYSICIAN ASSISTANT
In their brief , the Appellees claim that Mr. Perez did not plead an
APA Rule challenge in his Petition for judicial review1. Mr. Perez
objects.
The Appellee’s assertion lacks candor. Mr. Perez ENTIRE
COMPLAINT was devoted to the issue of the Constitutional and
statutory authority of the TMB to revoke Mr. Perez’ right to earn a
livelihood either at the State Office of Administrative Hearings or by
default.
Mr. Perez challenged the TMB’s purported authority to enter an
administrative default judgment since Mr. Perez had previously filed an
answer2. The Appellees did not and could not, explain how the TMB has
the authority to enter default judgments against a litigant who had
1 Appellees’ Brief in Response to Appellant’s Amended Initial Brief , Issue IV, page 6 2 ROA Vol 1 of 2, pp 21 FN 36, p 44 previously filed an answer given the fact that Texas jurisprudence has
nullified the practice since, at least, 19263.
Mr. Perez also objected because the TMB purportedly has the authority
to determine if Mr. Perez’ defenses are meritorious, within the meaning
of the Craddock Test4, even though it is not supposed to have the
authority to enter declaratory judgments5.
As stated in Mr. Perez initial Amended Appellate Brief6 on or about
March 7th, 20147 the Appellees engaged in ad hoc rulemaking.
Texas follows a fair notice standard for pleading, in which courts
assess the sufficiency of pleadings by determining whether an opposing
party can ascertain from the pleading the nature, basic issues, and the type
of evidence that might be relevant to the controversy8. A petition is
sufficient if it gives fair and adequate notice of the facts upon which the
pleader bases his claim9.
The purpose of this rule is to give the opposing party information
3 Schulz v. Schulz, 726 S.W.2d 256, 258 (Tex. App.--Austin 1987, no writ); World Co. v. Dow, 116 Tex. 146, 287 S.W. 241, 243 (Tex. Comm'n App.1926, opinion adopted) 4 ROA Vol 1 of 2 , p 18 5 Westheimer ISD v. Brockette, 567 SW 2d 780 , 785 (Tex. 1978). 6 Appellant’s Initial Appellate Brief , pp 32-41, Issue III 7 ROA Vol 2 of 2 pp 70-73 8 Gutierrez vs. Portfolio Recovery Associates, LLC, NO. 03-13-00311-CV (3rd DCA- February 26, 2015) citing Tex. R. Civ. P. 45 and 47 9 id sufficient to enable him to prepare a defense, accordingly, a plaintiff is not
required to "set out in his pleadings the evidence upon which he relies to
establish his asserted cause of action10. Furthermore, where, as here, the
party opponent did not file special exceptions, a petition should be
construed liberally in favor of the pleader11.
Mr. Perez respectfully submits that the Third District Court of Appeals
has authorized litigants to properly challenge the TMB rule which
purportedly allows the agency to revoke the right to work in a profession,
without cause, pursuant to the agency’s alleged “default proceedings”,
please see the Texas State Board of Pharmacy v. Witcher, 447 S.W.3d
520 (3rd DCA - October 31, 2014) citing Rodriguez v. Service Lloyds Ins.
Co., 997 S.W.2d 248 (Tex. 1999) and Railroad Commission of Tex. v.
WBD Oil & Gas Co., 104 S.W.3d 69 (Tex. 2003).
As in Witcher, supra, Mr. Perez did use contested-case procedures to
challenge the Board's ad hoc rule. He timely filed a motion for rehearing
with the Board, complaining of the rule. When that was overruled, he
timely filed a suit for judicial review, again complaining of the rule.
But, assuming arguendo, that Mr. Perez did not raise the issue in the
10 id 11 id Trial Court the same is nevertheless properly before the Appellate Court12.
II
MR. PEREZ DID NOT WAIVE HIS RIGHT TO CONFRONT AND CROSS EXAMINE ADVERSE WITNESS BY MERELY SEEKING A DECLARATORY JUDGMENT
The Appellees claim that Mr. Perez waived his right to confront and
cross examine adverse witness by merely seeking a declaratory
judgment13 seeking to protect his Constitutional rights. Their position is
wholly without merit14.
III
MR. PEREZ HAS A CONSTITUTIONAL AND COMMON LAW RIGHT TO HAVE THE CONSTITUTION APPLIED AS INTENDED BY THE VOTERS IN 1876
The Appellees claim that PALA not the Constitution or common law ,
govern his “license”15 Mr. Perez objects.
In support of their position the Appellees quote a case in which
12 Appellant’s Amended Initial Brief, item XV, pp 57-60. 13 Appellees’ Brief p6 ¶ 2 14 ElderCare Properties, Inc. v. Texas Department of Human Services, 63 S.W.3d 551 (Tex. App. Dist.3 12/06/2001)( A validity challenge tests a rule on procedural and constitutional grounds); Texas Department of Insurance v. Reconveyance Services, Inc. and City of El Paso v. Heinrich. 306 S.W.3d 256 (Tex. 2010); Southern Ohio Coal Co. v. Donovan, 774 F.2d 693 (6th Cir. 10/02/1985) citing California Utilities Commission v. United States, 355 U.S. 534, 540, 2 L. Ed. 2d 470, 78 S. Ct. 446 (1958)( But where the only question is whether it is constitutional to fasten the administrative procedure onto the litigant, the administrative agency may be defied and judicial relief sought as the only effective way of protecting the asserted constitutional right) 15 Brief p3 , FN 3 Mr. Perez’ was not a party nor were any of his defenses discussed:
Mr. Perez has relied, inter alia, upon:
(a) Tatro v. Texas, 703 F.2d 823 (5th Cir. 04/25/1983)16 ( at common
law, before the enactment of PALA, physicians could delegate their
medical authority to any individual who the supervising physician
believed was a qualified person) ;
(b) The State v James A. Goldman, 44 Tex. 104 (1875) ( A Texas
Supreme Court case, contemporaneous with the Texas Constitutional
Convention) (a medical license is merely a recognition that the holder is
academically qualified within the meaning Article XVI, Section 31 and
once a certificate of qualification was obtained the medical professional is
to be left alone unless he commits malpractice) ;
(c) Scott v. Texas State Board of Medical Examiners, 384 S.W.2d
686, 690 (Tex. Sup. Ct - 1964) (At common law the right to earn a living
could only be revoked for cause , in a civil jury trial in the district courts ;
(d) Spann v. City of Dallas, 111 Tex. 350, 235 SW 513, 514 (1921) in
which Chief Justice Nelson Phillips stated “the Legislature has no
authority to transgress upon the right of a citizen, who has committed no
wrong. He has the right to acquire and own property, and to use it as he
16 Citing Tex.Rev.Civ.Stat.Ann. art. 4495b § 3.07(i) (Vernon Supp. 1982-1983). pleases so long as his act in such use harms no one, and so long as his
permissive use by others of his property is innocently authorized. In our
Constitution the liberties protected by the Bill of Rights are, by express
provision, 'excepted out of the general powers of government.' It is
declared that they 'shall forever remain inviolate,' and that 'all laws
contrary thereto shall be void.' Texas voters have not amended the
constitution in order to permit the legislature to use arbitrarily use police
powers to take or seize the property of innocent Texans. Nor have Texas
voters amended the Constitution to allow expand the police powers
authorized by Article XVI, § 31.
(4) Chandler v. Miller, 520 U. S. 305, 308 (1997).The Fourth
Amendment requires that searches and seizures be reasonable. A search or
seizure is unreasonable in the absence of individualized suspicion of
wrongdoing. At the time the matter was before SOAH or at the TMB no
neutral magistrates had provided a detached judgment finding probable
cause as required by the Fourth Amendment;
(5) A.R. Logan v. The State, 5 Texas Court Of Appeals 306 (Tyler-1878)
At common law , the only police power affecting the medical profession was Texas Constitution Article XVI, § 3117.
Mr. Perez emphasizes and re-states that "constitution" has been defined
as a "charter of government deriving its whole authority from the
governed18. It is a compact between the government and the people in
which the people delegate powers to the government and in which the
powers of the government are prescribed19.
By design, the framers of the Texas Constitution determined the
constitution was to be a compact between the government and its citizens.
Tex. Const. art. I, § 2 ("All political power is inherent in the people, and
all free governments are founded on their authority, and instituted for their
benefit)20.
The guiding principle of construing a constitution is to ascertain and
give effect to the intent of the voters who adopted it21. The provisions of
the Texas Constitution mean what they meant when they were
17 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. The Court ruled therein that the intent of the 1876 voters was to use Article XVI, Section 31 exclusively. That proviso has not been amended by state voters. 18 Republican Party of Texas v. Dietz, 940 S.W.2d 86, 91 (Tex. 1997) (quoting Black's Law Dictionary 311 (6th ed. 1990)). 19 id 20 Republican Party, 940 S.W.2d at 91 n.6. 21 Williams v. Castleman, 247 S.W. 263, 265 (Tex. 1922); Cox v. Robison, 150 S.W. 1149, 1151 (Tex. 1912). promulgated and adopted, "and it does not lie within the power of the
Legislature to change their meaning, or to enact laws in conflict
therewith22. As the supreme court stated more recently, "In interpreting the
Texas Constitution, Texas courts rely heavily on the literal text and are to
give effect to its plain language23.
The Constitutional convention of 1876 was provoked by a corrupt
government in Austin wherein the judicial branch colluded with the
executive branch24.
IV
THE DOCTRINE OF EXCLUSIVE JURISDICTION DOES NOT APPLY WHERE, AS HERE, A PARTY ASSERT CONSTITUTIONAL CLAIMS AND THE ADMINISTRATIVE AGENCY HAS ENTERED A FINAL DECISION
The Appellees assert that that the doctrine of exclusive jurisdiction
applies even where constitutional claims have been made25. Mr. Perez
objects.
22 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). 23 Republican Party, 940 S.W.2d at 89; see also City of Beaumont v. Bouillion, 896 S.W.2d 143, 148 (Tex. 1995);.Satterfield v. Crown Cork & Seal Co., Inc., 268 S.W.3d 190 (Tex.App. Dist.3 08/29/2008 24 https://lawweb.colorado.edu/profiles/pubpdfs/bruff/BruffTLR.pdf Separation of Powers under the Texas Constitution , Texas Law Review, Vol 68, #7, June 1990, by Harold H. Bruff, Esq, Law Professor, University of Texas 25 Appellees’ Brief p7 The Texas Supreme Court adopted the principle26 in, its seminal case,
i.e., Texas Education Agency v Cypress Fairbanks, 830 S.W.2d 88 (May
6, 1992) case citing McNeese v. Board of Educ., Community Unit Sch.
Dist. 187, 373 U.S. 668, 670-71, 10 L.Ed.2d 622, 83 S.Ct. 1433, (1963)
and Damico v. California, 389 U.S. 416, 19 L. Ed. 2d 647 , 88 S. Ct. 526
(1967)(per curiam).
The Appellees categorized as meritless Mr. Perez claim that exclusive
jurisdiction does not apply where, as here, a final administrative decision
has been made 27. Mr. Perez objects.
The 3rd DCA affirmed its previous ruling asserting that exclusive
jurisdiction does not apply after an administrative decision has been made
in WBD Oil & Gas Company v. Railroad Commission of Texas, 35
S.W.3d 34, 35 S.W.3d 34 (Tex.App. 02/04/1999) citing Amarillo Oil Co.
v. Energy-Agri Prods., Inc., 794 S.W.2d 20, 26 (Tex. 1990) and Kenneth
C. Davis, Administrative Law Treatise § 19.01, at 373 (1972).
V
DISMISSAL WITH PREJUDICE WAS IMPROPER
26 We note, however, that the employees' Title 42 and constitutional claims are not affected by the doctrine of exhaustion of administrative remedies such that they must be originally considered by the TEA. Because of the nature of such claims, prior resort to the administrative process is not usually required 27 Appellees’ Brief, p7 The Appellees’ claim that the dismissal with prejudice was proper.28
Mr. Pere objects.
Dismissals for lack of subject matter jurisdiction are without prejudice
to refiling29.
VI
MR. PEREZ LEAVE TO AMEND ARGUMENT IN ORDER TO ADD MARI ROBINSON , IN HER INDIVIDUAL CAPACITY, IS MERITORIOUS
Mr. Perez claims that he should have been granted leave to amend to add Mari
Robinson in her individual capacity because state government employees may be
sued in their individual capacities for damages, declaratory or injunctive relief
pursuant to 42 USC 198330.
In the instant action Mr. Perez sued Ms Robinson pursuant to the ultra vires
act31. Accordingly, Mr. Perez ought to have been given leave to amend in order to
also sue Ms. Marie Robinson in her individual capacity32.
28 Appelles Brief page 8 29 Hamilton v Washington, NO. 03-11-00594-CV (3rd DCA - December 23, 2014) citing Thomas v. Long, 207 SW 3d 334, 340 (Tex-2006) 30 ROA, Vol 1 of 2, pp 150; 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) 31 ROA , Vol 1 of 2, p 13, item 36 32 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. 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 “Plaintiff/Appellant’s Reply Brief “ was served by emailing a copy thereof via the State efiling system on this 12th Day of April 2015 to:
Ted A Ross, Esq Assistant Attorney General PO Box 12548 Austin, TX 78711-2548 ted.ross@texasattorneygeneral.gov Margaret.Evins@texasattorneygeneral.gov
_________/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 3239 which includes all words contained in this brief, excepting the cover page and index of authorities