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

Opinion

ACCEPTED 03-13-00502-CV 4916661 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/16/2015 1:25:40 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 4/16/2015 1:25:40 PM 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 April 15, 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 basing its

opinion on the fact that the Appellant attended the contested case hearing below. 2. Argument and Authorities: The fact that the Appellant attended the

contested case hearing below is not and has not been the issue the Appellant has

sought review in this Court and in the trial court below. The issue is that neither the

Appellant nor his attorney of record, Craig Washington, was properly served with

the Proposal for Decision in time to properly file any objections to the proposal.

Being timely served is a matter of Due Process under both the United States and

Texas Constitution. Such an error by Administrative Judge Roy Scudday,

concerning service, meets all of the criteria of TEX. GOV’T CODE § 2001.174.

Pursuant to 1 TEX. ADMIN. CODE § 155.3(g), TEX. R. CIV. P. 21a must be

harmonized with 1 TEX. ADMIN. CODE § 155.507(b), since service of the Proposal

for Decision was challenged in the trial court and in the Motion for Rehearing

before the Texas Medical Board.

The panel, in its opinion, has impermissibly shifted the burden of proof

concerning service. This Court is requested to take judicial notice that the Proposal

for Decision does not contain a certificate of service. Once service has been

challenged, the burden is on Judge Scudday and the Texas Medical Board to show

valid service of the Proposal for Decision. That burden does not shift to the litigant

challenging service. See Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005); In

re E.A., 287 S.W.3d 1, 5 (Tex. 2009); Wembley Inv. v. Herrera, 11 S.W.3d 924,

927 (Tex. 1999). Neither Judge Scudday nor the Texas Medical Board offered any evidence in the trial court below to show valid service pursuant to Supreme Court

of Texas precedent that controls the matter. By not following said precedent, the

Appellant’s Due Process Rights have been violated thus “vitiating” the Proposal

for Decision, the substantial evidence rule notwithstanding. See, e.g., Lewis v.

Metropolitan Savings and Loan Association, 550 S.W.2d 11, 13-16 (Tex. 1977).

TEX. R. APP. P. 47.1 required the panel to address the issue as framed by the

Appellant in his briefs and motions and not to ignore or change them. See, e.g.,

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

1989).

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. The panel of the

Court has used “judicial fiat” to craft a doctrine and decision which is contrary to

the applicable statutory authority.

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

addressed both the Appellant’s issue as presented in this appeal and the panel did

1 The time that elapsed from October 1, 2012 to November 8, 2012 is thirty-nine (39) days. 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., supra.

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 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 15th day of April, 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 879. 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.