Roderick Lee Mitchell, M.D. v. Texas Medical Board

Opinion

ACCEPTED 03-13-00502-CV 4154858 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/14/2015 1:39:43 PM JEFFREY D. KYLE CLERK No. 03-13-00502-CV ______________________________________________________________________________ FILED IN IN THE 3rd COURT OF APPEALS COURT OF APPEALS AUSTIN, TEXAS FOR THE 2/17/2015 12:00:00 AM THIRD SUPREME JUDICIAL DISTRICT JEFFREY D. KYLE OF Clerk TEXAS AT AUSTIN, TEXAS ______________________________________________________________________________

RODERICK LEE MITCHELL, M.D. Appellant,

vs.

TEXAS MEDICAL BOARD, Appellee. ______________________________________________________________________________

Appeal from the 126th Judicial District Court of Travis County, Texas ______________________________________________________________________________

MOTION FOR REHEARING EN BANC

TO THE HONORABLE COURT OF APPEALS:

RODERICK LEE MITCHELL, M.D., Appellant in this cause, makes this Motion for

Rehearing En Banc of the judgment of a panel of this Court rendered on February 4, 2015, and in

support of said motion would respectfully show the Court the following:

I.

1. Point of Error: The panel of the Court of Appeals erred in affirming the trial

court’s judgment on the basis that that final agency order is the equivalency of a trial court

judgment or order. 2. Argument and Authorities: Although the panel of this Court, on Slip Op., p.6,

makes the assertion that a final agency order reciting that proper notice was given is to be treated

like a recitation in a trial court judgment and/or order, the panel cites no case law or statutory law

to buttress its position and the Appellant contends that the panel cannot fashion such a doctrine

by judicial fiat. See MCI Sales and Service, Inc. v. Hinton, 329 S.W.3d 474, 503 (Tex. 2010);

Fortis Benefits v. Cantu, 234 S.W.3d 642, 649 n.41 (Tex. 2007) (noting that court’s should not

by judicial fiat insert non-existent language into statutes”). This holding by the panel totally

violates the doctrine of stare decisis and cannot allowed to birth further progeny.

The conclusions that the panel of this Court reached concerning service as a result of the

flawed doctrine of “judicial fiat” violated the Equal Protection and Due Process Rights of the

Appellant guaranteed by the Fourteenth Amendment to the United States Constitution and

Article I, §§ 3 and 19 of the Texas Constitution. As far as record references to sustain the

Appellant’s position challenging the lack of service, Pages 2 and 3 of the Brief of Appellant and

Pages 5-7 of the Reply Brief of Appellant gave the panel of this Court the correct citations to the

appellate record to more than sustain the Appellant’s argument. The Appellant incorporates by

reference the Brief of Appellant and Reply Brief of Appellant the same as if fully set out at

length herein.

II.

1. Point of Error: The panel of the Court of Appeals erred in affirming the trial

court’s judgment on the basis that that after receiving the Board’s letter on November 9, 2012,

Attorney Washington never made a request for an extension of time to file exceptions to the

Proposal for Decision. 2. Argument and Authorities: The Plaintiff had only has fifteen (15) days from the

time the Proposal for Decision was forwarded to the Appellee to file a response. That

requirement is jurisdictional. See 22 TEX. ADMIN. CODE § 107.50. On November 8, 2012, it is

alleged that Attorney Washington was notified that the Board would consider the Proposal for

Decision on November 30, 2012. This Court, en banc, is requested to take judicial notice that the

November 8, 2012 date of the letter and the November 30, 2012 date of notice for consideration

of the Proposal for Decision are long after the deadline expired for responding to the Proposal for

Decision. 1 Lastly, the November 8, 2012 letter specifically and unambiguously states that, “The

Board will not listen to or consider new or additional testimony or matters which are not in the

record.” (C.R. 97.) See also 22 TEX. ADMIN. CODE § 107.49. That statement is a judicial

admission by the Appellee and for the panel of the Court to intimate that the Appellant could

make a presentation and/or rebuttal to the Proposal for Decision at that late date stretches

credulity to its very limits. The Appellant’s Equal Protection and Due Process Rights were

violated by not being properly served, thus not allowing him his statutory right to respond and

rebut the Proposal for Decision. Once again, the panel of the Court has used “judicial fiat” to

craft a doctrine and decision which is contrary to the applicable statutory authority. See MCI

Sales; Fortis Benefits, supra.

Pursuant to TEX. R. APP. P. 47.1, the panel of this Court should have addressed both of

the Appellant’s issues presented in this appeal and the panel did not have the authority to ignore

them. This Court, en banc, is respectfully requested to correct this injustice. See, e.g., Lone Star

Gas Co. v. Railroad Commission, 767 S.W.2d 709, 710-711 (Tex. 1989).

WHEREFORE, PREMISES CONSIDERED, Appellant requests that the Court, en banc,

grant this motion, that the Court, en banc, vacate the opinion and judgment of the panel, that the 1 The time that elapsed from October 1, 2012 to November 8, 2012 is thirty-nine (39) days. judgment of the trial court be reversed, that the Final Order of the Texas Medical Board be

reversed and remand the case with instructions to allow the Appellant to respond to the Proposal

for Decision.

Respectfully submitted,

WILLIE & ASSOCIATES, P.C.

By:/s/ Joseph R. Willie, II, D.D.S., J.D. Joseph R. Willie, II, D.D.S., J.D. 4151 Southwest Freeway, Suite 490 Houston, Texas 77027 (713) 659-7330 (713) 599-1659 (FAX) SBOT# 21633500 attyjrwii@wisamlawyers.com

ATTORNEY FOR APPELLANT RODERICK LEE MITCHELL, M.D.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was served via e- service to Ted A. Ross, Assistant Attorney General, P.O. Box 12548, Capitol Station, Austin, Texas 78711-2548, on the 14th day of February, 2015.

/s/ Joseph R. Willie, II, D.D.S., J.D. Joseph R. Willie, II, D.D.S., J.D.

CERTIFICATE OF COMPLIANCE

I certify that the Motion for Rehearing En Banc submitted complies with TEX. R. APP. P. 9 and the word count of this document is 793. The word processing software used to prepare the document and to calculate the word count is Windows 7.

/s/ Joseph R. Willie, II, D.D.S., J.D. Joseph R. Willie, II, D.D.S., J.D.