Texas State Board of Veterinary Medical Examiners and Brittaney Sharkey, Solely in Her Official Capacity as Executive Director of the Texas State Board of Veterinary Medical Examiners v. Shawn Messonnier DVM

• Court: Court of Appeals of Texas
• Decided: December 18, 2024
• Docket: 15-24-00102-CV
• Status: Published

Opinion

ACCEPTED 15-24-00102-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 12/18/2024 9:31 AM No. 15-24-00102-CV CHRISTOPHER A. PRINE CLERK FILED IN IN THE COURT OF APPEALS 15th COURT OF APPEALS AUSTIN, TEXAS FOR THE FIFTEENTH JUDICIAL DISTRICT 12/18/2024 9:31:43 AM AUSTIN, TEXAS CHRISTOPHER A. PRINE Clerk

Texas State Board of Veterinary Medical Examiners and Brittaney Sharkey, Solely in Her Official Capacity as Executive Director of the Texas State Board of Veterinary Medical Examiners, Appellants, v.

Shawn Messonnier, DVM, Appellee.

On Appeal from the 98th Judicial District Court, Travis County

Appellants’ Brief on the Merits KEN PAXTON Ted A. Ross Attorney General of Texas Assistant Attorney General State Bar No. 24008890 BRENT WEBSTER OFFICE OF THE TEXAS ATTORNEY GENERAL First Assistant Attorney General ADMINISTRATIVE LAW DIVISION RALPH MOLINA P. O. Box 12548 Deputy First Assistant Attorney Austin, Texas 78711-2548 General Telephone: (512) 475-4191 Email: ted.ross@oag.texas.gov JAMES LLOYD Deputy Attorney General for Civil ATTORNEYS FOR APPELLANTS Litigation ERNEST C. GARCIA Chief, Administrative Law Division December 18, 2024

ii TABLE OF CONTENTS

INDEX OF AUTHORITIES ........................................................................... v

REFERENCES TO THE RECORD AND ABBREVIATIONS ..................... vii

IDENTITY OF PARTIES AND COUNSEL ................................................ viii

STATEMENT OF THE CASE ........................................................................ 1

STATEMENT REGARDING ORAL ARGUMENT ...................................... 2

ISSUE PRESENTED ....................................................................................... 2

STATEMENT OF FACTS ............................................................................. 2

SUMMARY OF THE ARGUMENT .............................................................. 5

ARGUMENT AND AUTHORITIES ............................................................. 7

I. Dr. Messonnier is not entitled to declaratory relief. ................................ 7

A. The complaints lodged against Dr. Messonnier are strictly confidential under Texas law, and there are no exceptions ............ 7

B. Dr. Messonnier has not been denied due process of law. ............... 8

1. Informal conferences are not adjudicatory proceedings in which any action is taken against a Board licensee; Dr. Messonnier would be afforded full due process if the Board were to refer any of the complaints for a contested case hearing. .......................................................... 10

C. Disclosure of the complaints would result in a chilling effect on complainants who allege harm on the part of Texas veterinarians. ..................................................................... 12

iii D. The Final Judgment regarding the Board rules is in an improper advisory opinion and does not redress any alleged injury................................................................................ 13

E. The findings and declarations in the Final Judgment do not limit the disclosure of complaints to third parties. ........................14

PRAYER.......................................................................................................... 15

CERTIFICATE OF COMPLIANCE .............................................................. 16

CERTIFICATE OF SERVICE........................................................................ 17

APPENDIX ..................................................................................................... 18

iv INDEX OF AUTHORITIES

Cases Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) ............................................................................................. 9

Doe v. Iowa Bd. of Med. Exam’rs, 733 N.W.2d 705, 709 (Iowa 2007) ...................................................................... 13

Hannah v. Larche, 363 U.S. 420 (1960)............................................................................................ 10

Mathews v. Eldridge, 424 U.S. 319 (1976) ........................................................................................ 9, 12

Osborne v. Tex., No. A–13–CV–528–LY, 2013 WL 5556210 (W.D. Tex. Oct. 8, 2013) ................. 9

Ramirez v. Tex. State Bd. of Med. Exam’rs, 927 S.W.2d 770 (Tex. App.—Austin 1996, pet. denied) ..................................... 11

Scally v. Tex. State Bd. of Med. Exam’rs, 351 S.W.3d 434 (Tex. App.—Austin 2011, pet denied) .................................. 9, 12

Tex. Comptroller of Pub. Accts. v. Walker Elec. Co., LLC, No. 03–13–00285–CV, 2014 WL 6612431 (Tex. App.—Austin Nov. 21, 2014, no pet.) (mem. op.) ..................................................................... 13

Tex. Logos, L.P. v. Tex. Dep’t of Transp., 241 S.W.3d 105 (Tex. App.—Austin 2007, no pet.) ........................................... 14

Tirrez v. Comm’n for Lawyer Discipline, No. 03–16–00318–CV, 2018 WL 454723 (Tex. App.—Austin Jan. 12, 2018, pet. denied) (mem. op.) ........................................................ 8, 9, 12

Statutes Tex. Gov’t Code § 552.101 ............................................................................................................. 8

v § 2001.003(1) ..................................................................................................... 11

Tex. Occ. Code § 151.003 ............................................................................................................. 9 § 801.207 ............................................................................................................ 8 § 801.207(b) ................................................................................... 1, 4, 7, 8, 13, 15 § 801.207(d)....................................................................................................... 11 § 801.402 ............................................................................................................ 7 § 801.408 ........................................................................................................... 10 § 801.408(c) ....................................................................................................... 10 § 801.402(d) ...................................................................................................... 10

Tex. Civ. Prac. & Rem. Code ch. 37 ....................................................................... 5

Rules 1 Tex. Admin. Code §§ 1551.1 - .509 ..................................................................... 12

22 Tex. Admin. Code § 573.22............................................................................................................... 3 § 573.24............................................................................................................... 3 § 573.27 ............................................................................................................... 3 § 573.41 ............................................................................................................... 3 § 573.44............................................................................................................... 3 § 573.52 ............................................................................................................... 3 § 573.64.............................................................................................................. 14 § 573.75 ............................................................................................................... 3 § 575.28...................................................................................................... 4, 6, 13 § 575.29...................................................................................................... 4, 6, 13

Tex. R. Civ. P. 329b(c) ........................................................................................... 2

Other References Tex. Att’y Gen. OR2020-26067 .................................................................................................... 8

vi REFERENCES TO THE RECORD AND ABBREVIATIONS

CR Clerk’s Record

RR, Vol.[#], page [#] Reporter’s Record

Board Appellants, Texas State Board of Veterinary Medical Examiners, and Brittany Sharkey, Solely in Her Official Capacity as Executive Director of the Texas State Board of Veterinary Medical Examiners 1

Dr. Messonnier Appellee, Shawn Messonnier

Tr. [page no.]: lines [# - #] Transcript of the district court oral argument

Final Judgment District Court Final Judgment signed on July 2, 2024

App. Tab [#] The appendix attached to this brief.

1John M. Helenberg was the Executive Director of the Board when the underlying suit was filed. Brittany Sharkey replaced Mr. Helenberg as Executive Director in September 2022.

vii IDENTITY OF PARTIES AND COUNSEL

Appellants/Defendants: Counsel before the Trial Court:

Texas State Board of Veterinary Ted A. Ross Medical Examiners, and John M. Assistant Attorney General Helenberg 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 Email: ted.ross@oag.texas.gov

Appellee/Plaintiff: Counsel before the Board and before the Trial Court:

Shawn Messonnier, DVM J. Kirk Bryant (Lead Attorney) Texas Bar No. 03280550 kbryant@whitakerchalk.com Donald A. Ferrill Texas State Bar No. 00784047 dferril@whitakerchalk.com WHITAKER CHALK SWINDLE & SCHWARTZ PLLC 301 Commerce Street, Suite 3500 Fort Worth, Texas 76102-4186 PHONE: (817) 878-0500 FAX: (817) 878-0501

viii STATEMENT OF THE CASE

As part of an investigation of complaints submitted to the Board, the Board

issued to Dr. Messonnier a notice of a scheduled informal conference, which

contained allegations in five Board dockets, alleging that Dr. Messonnier committed

multiple violations of the Texas Veterinary Practice Act (Act), including failing to

meet the professional standard of care in treating animal patients. Before the

scheduled date of the Informal Conference, Dr. Messonnier’s counsel requested the

Board to produce “all complaints against Dr. Messonnier, including all documents

and tangible things attached to, enclosed with, or referred to within the complaint,

and any reports of investigations.” The Board declined to furnish the complaints and

other material Dr. Messonnier requested because such material is confidential by law

pursuant to Texas Occupations Code section 801.207(b).

Before the informal conference could take place, Dr. Messonnier filed a

lawsuit in a Travis County district court, seeking declaratory, mandamus and

injunctive relief. The Board did not conduct the informal conference due to the

pendency of the suit. After briefing and a merits hearing, the district court signed the

Final Judgment on July 2, 2024, which granted Dr. Messonnier’s request for

declaratory relief but denied Dr. Messonnier’s requests for mandamus and

injunctive relief.

1 The Board filed a motion to modify the final judgment on July 26, 2024, which

was overruled by operation of law on September 16, 2024. Tex. R. Civ. P. 329b(c).

The Board timely filed a notice of appeal on September 20, 2024.

STATEMENT REGARDING ORAL ARGUMENT

The Board believes that the constitutional due process issue in this case is

straightforward and does not require oral argument. However, if the Court disagrees,

the Board respectfully requests the opportunity to participate in the argument.

ISSUE PRESENTED

Was the trial court’s grant of declaratory relief proper, given that (1) the

complaints against Dr. Messonnier filed with the Board are confidential by law; and

(2) Dr. Messonnier would be afforded full due process if any of the complaints were

to proceed to a contested case hearing at the State Office of Administrative

Hearings?

STATEMENT OF FACTS

1. Appellee, Shawn Messonnier, D.V.M., of Plano, Texas, holds Texas

veterinary license 6277. RR Vol. 3, Defendant’s (Board’s) Ex. 1.

2. On February 23, 2021, and as part of an investigation of complaints

submitted to the Board, the Board issued Informal Conference Allegations in five

Board dockets that Dr. Messonnier (i) failed to meet the professional standard of

2 care in treating animal patients, as required by the Board’s Rules of Professional

Conduct; (ii) failed to refer any patient to a specialist; (iii) failed to maintain adequate

medical records for the treatment of his patient; (iv) failed to document medical need

for the prescription drugs Dr. Messonnier administered to patients; (v) failed to note

the dates certain drugs were compounded, the name and strength of the medically

active ingredients, the identity of the treated animal(s), and the condition of the

disease to be treated; and (vi) failed to provide missing medical records and/or

updated records to the Board when requested. RR Vol. 3, Defendant’s (Board’s) Ex.

1 (pdf page 27).

3. In the same Informal Conference Allegations, and based on the

foregoing findings, the Board issued a list of potential violations that the Informal

Conference Panel would consider, including whether Dr. Messonnier violated Board

Rule 573.22, Professional Standard of Care, Rule 573.24, Responsibility of

Veterinarian to Refer a Case, Rule 573.27, Honesty, Integrity, and Fair Dealing, Rule

573.41, Use of Prescription Drugs, Rule 573.44, Compounding Drugs, Rule 573.52,

Veterinarian Patient Recordkeeping, and Rule 573.75, Duty to Cooperate with

Board, of the Board’s Rules of Professional Conduct. RR Vol. 3, Defendant’s

(Board’s) Ex. 1 (pdf page 28).

3 4. Dr. Messonnier’s counsel thereafter requested the Board to produce

“all complaints against Dr. Messonnier, including all documents and tangible things

attached to, enclosed with, or referred to within the complaint, and any reports of

investigations.” RR Vol. 3, Defendant’s (Board’s) Ex. 2 (pdf page 58).

5. The Board declined to furnish the complaints and other material Dr.

Messonnier requested because such material is confidential by law. Tex. Occ. Code

§ 801.207(b). RR Vol. 3, Defendant’s (Board’s) Ex. 2 (pdf pages 59-60).

6. Before the informal conference was held, Dr. Messonnier filed this

lawsuit for declaratory, mandamus and injunctive relief, seeking:

o a writ of mandamus compelling the Board to produce to Dr. Messonnier complete copies of all complaints received by the Texas State Board of Veterinary Medical Examiners concerning Board Complaint Numbers CP 19-202; CP-20-351; CP 20-352; and CP20-353;

o a temporary restraining order that prohibits the Board from conducting an informal conference regarding Board Complaint Numbers CP 19- 202; CP-20-351; CP 20-352; and CP20-353 until such time as the Board has provided Dr. Messonnier with the records he requested;

o a temporary injunction that prohibits the Board from conducting an informal conference concerning the complaints until such time as the Board has provided Dr. Messonnier with the records he requested;

o a declaratory judgment declaring that, as to Dr. Messonnier and license holders similarly situated, (i) Texas Occupations Code § 801.207(b), as amended in 2017, violates Dr. Messonnier’s right to due process under the United States and Texas Constitutions and is unenforceable; and (ii) all Board Rules, specifically including 22 TAC 575.28 and 575.29 and all Board practices, formal and informal, which fail to provide

4 Plaintiff and license holders similarly situated, actual notice of the complaints against them, including the specific factual allegations thereof, violate Plaintiff’s right to due process under the United States and Texas Constitutions and is unenforceable;

o attorneys’ fees pursuant to Chapter 37 of the Texas Civil Practices and Remedies Code.

CR 3-45 (Original Petition).

7. The Board did not hold an informal conference due to the pendency of

this suit. (Undisputed).

8. After briefing and argument, the district court issued the Final

Judgment granting Dr. Messonnier’s request for declaratory relief and denying his

requests for mandamus and injunctive relief. CR 157-158. App. Tab A.

9. The Board filed a Motion to Modify Judgment on July 26, 2024, which

was denied by operation of law on September 16, 2024. CR 159-223.

10. The Board timely filed its notice of appeal on September 20, 2024. CR

224-229.

SUMMARY OF THE ARGUMENT

The complaints Dr. Messonnier seeks are strictly confidential by law. There

is no legal basis whatsoever for his claims that he is entitled to confidential

information, including the complaints.

5 In addition, the Board has not adjudicated any of the claims set forth in the

Informal Conference Allegations, and holding an informal conference would not

change that fact. Informal conferences are simply an opportunity for a license holder,

such as Dr. Messonnier, to show compliance with allegations contained in a

complaint. Dr. Messonnier would not be compelled to accept any proposed order at

an informal conference and, in fact, would not even be required to attend the

conference. The informal conference would also not result in any action against Dr.

Messonnier’s license. If the matter were referred to the State Office of

Administrative Hearings (SOAH) for a contested case proceeding, Dr. Messonnier

would be afforded full due process, including the right to conduct discovery, call his

own witnesses, cross-examine the Board’s witnesses, brief the issues, and seek

judicial review if a Board final order imposes discipline.

Finally, the finding and declaration in the Final Judgment as to Board rules

575.28 and 575.29 would constitute an impermissible advisory opinion because the

relief granted goes beyond the plain language of the rules and would not redress any

alleged injury suffered by Dr. Messonnier. The Final Judgment purports to

invalidate rules that do not concern the confidentiality of complaints. The rules

contain no language about the confidentiality of complaints against licensees

submitted to the Board.

6 This Court should reverse the Final Judgment as it pertains to Dr.

Messonnier’s request for declaratory relief and render judgment in favor of the

Board on all claims.

ARGUMENT AND AUTHORITIES

I. Dr. Messonnier is not entitled to declaratory relief.

A. The complaints lodged against Dr. Messonnier are strictly confidential under Texas law, and there are no exceptions.

Dr. Messonnier is a veterinarian licensed to practice in Texas. That practice,

by its very nature, involves the medical treatment of animals, most of which are

owned by Texas citizens. The legislature has charged the Board with protecting the

public from the unsafe practice of veterinary medicine, including the regulation of

practitioners and their licenses. See Tex. Occ. Code § 801.402 (grounds for

disciplinary actions by the Board, which promote the public interest). For these

reasons, the legislature directed and authorized the Board—like most any other

professional licensing board—to conduct thorough investigations of complaints

without the identity of the complainant or the content of the complaint itself being

subject to public disclosure.

In district court Dr. Messonnier admitted that the complaints are confidential

by law under the Texas Veterinary Licensing Act (Act). Section 801.207(b) of the

Act provides:

7 Except as provided by Subsection (b-1), each complaint, investigation file and record, and other investigation report and all other investigative information in the possession of or received or gathered by the board or the board’s employees or agents relating to a license holder, an application for license, or a criminal investigation or proceeding is privileged and confidential and is not subject to discovery, subpoena, or other means of legal compulsion for release to anyone other than the board or the board’s employees or agents involved in discipline of a license holder.”

Tex. Occ. Code § 801.207(b) (emphasis added).

The Attorney General, in an open records decision, held that “the board must

withhold the submitted information (including the complaint in the Board’s

investigative file) under section 552.101 of the Government Code in conjunction

section 801.207(b) of the Occupations Code.” Tex. Atty. Gen. OR2020-26067 (Oct.

16, 2020). See App. Tab B. This opinion construed a 2017 amendment to section

801.207, which prohibits release of a complaint to anyone other than the Board or

the Board’s employees or agents involved in discipline of a license holder.

The complaints that are the subject of this proceeding are strictly confidential,

and the Board is prohibited from releasing them to Dr. Messonnier.

B. Dr. Messonnier has not been denied due process of law.

To state a claim for deprivation of due process, a party must at least allege (1)

the deprivation of a constitutionally protected interest and (2) constitutionally

inadequate procedures. Tirrez v. Comm’n for Lawyer Discipline, No. 03–16–00318–

8 CV, 2018 WL 454723, at *4 (Tex. App.—Austin Jan. 12, 2018, pet. denied) (mem.

op.), citing Osborne v. Tex., No. A–13–CV–528–LY, 2013 WL 5556210, at *4–5

(W.D. Tex. Oct. 8, 2013) and Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538,

541 (1985). See also Scally v. Tex. State Bd. of Med. Exam’rs, 351 S.W.3d 434, 446-447

(Tex. App.—Austin 2011, pet denied), quoting Mathews v. Eldridge, 424 U.S. 319,

333 (1976). The Third Court of Appeals held in Scally that “[t]he legislature has

found that ‘the practice of medicine is a privilege and not a natural right of individuals

and as a matter of public policy it is necessary to protect the public interest through

enactment of this subtitle to regulate the granting of that privilege and its subsequent

use and control.’” 351 S.W.3d at 446, n.14 (emphasis added), citing Tex. Occ. Code

§ 151.003. While there are no parallel legislative findings in the Veterinary Licensing

Act, there is no reason why the same principle should not apply to the practice of

veterinary medicine.

Dr. Messonnier’s due process argument must be evaluated with the foregoing

standards in mind.

9 1. Informal conferences are not adjudicatory proceedings in which any action is taken against a Board licensee; Dr. Messonnier would be afforded full due process if the Board were to refer any of the complaints for a contested case hearing.

In district court, Dr. Messonnier argued that he is entitled to the complaints

now, notwithstanding that none of the matters have been referred to SOAH, and

before any informal conference is held. His argument ignores the fact that an

informal conference is not an adjudicatory proceeding or hearing. Instead, it is simply

an opportunity for a licensee to show compliance and to engage in settlement

discussions. Tex. Occ. Code § 801.408. The informal conference panel does not take

enforcement action; it only recommends enforcement action. Tex. Occ. Code §

801.408(c), (d). These types of proceedings are not subject to rights such as apprisal,

confrontation, and cross-examination. See Hannah v. Larche, 363 U.S. 420, 445-446

(1960). Board investigations like the ones in this case are intended to gather facts

related to a complaint against a licensee; they are not for the purpose of adjudicating

or determining rights or imposing discipline, which only happen if and after the

matter is referred to SOAH for a contested case hearing. Moreover, Dr. Messonnier

would not be compelled to accept any proposed order at an informal conference and,

in fact, would not even be required to attend the conference in the first place.

10 In contrast, a contested case hearing, such as one that would be conducted at

SOAH if the Board referred a complaint to SOAH, “means a proceeding, including

a ratemaking or licensing proceeding, in which the legal rights, duties, or privileges

of a party are to be determined by a state agency after an opportunity for adjudicative

hearing.” Tex. Gov’t Code § 2001.003(1). See also Ramirez v. Tex. State Bd. of Med.

Exam’rs, 927 S.W.2d 770, 772 (Tex. App.—Austin 1996, pet. denied).

Pursuant to the Act, if the Board were to refer any complaints against Dr.

Messonnier to SOAH for a contested case hearing, the Board would be obligated to

furnish Dr. Messonnier with all information in its possession it intends to offer into

evidence in presenting its case in chief:

(d) Not later than the 30th day after the date of receipt of a written request from a license holder who is the subject of a formal complaint initiated and filed under this subchapter or from the license holder’s counsel of record, and subject to any other privilege or restriction set forth by rule, statute, or legal precedent, and unless good cause is shown for delay, the board shall provide the license holder with access to all information in its possession that the board intends to offer into evidence in presenting its case in chief at the contested hearing on the complaint.

The board is not required to provide: (1) a board investigative report or memorandum; (2) the identity of a nontestifying complainant; or (3) attorney-client communications, attorney work product, or other materials covered by a privilege recognized by the Texas Rules of Civil Procedure or the Texas Rules of Evidence.

Tex. Occ. Code § 801.207(d) (emphasis added).

11 And, if the Board refers a case against Dr. Messonnier to SOAH, his right to

due process will be satisfied not only through his access to the Board’s evidence, but

also through his ability to conduct discovery, call witnesses, cross-examine

witnesses, etc. 1 Tex. Admin. Code §§ 1551.1 - .509.

It is undisputed that no formal complaint against Dr. Messonnier has been

filed at SOAH and, indeed, to date no discipline has been imposed on him. Nor has

any contested case hearing (or “trial”) occurred. Dr. Messonnier has not and cannot

credibly claim that he is being deprived of “constitutionally inadequate procedures.”

Tirrez, 2018 WL 454723, at *4. See also Scally, 351 S.W.3d at 446-447, quoting

Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

Dr. Messonnier’s claim for declaratory relief is improper and should be

rejected.

C. Disclosure of the complaints would result in a chilling effect on complainants who allege harm on the part of Texas veterinarians.

The confidentiality of Board investigations protects complainants who may

not wish to testify, and requiring the Board to furnish confidential investigative

information would violate the integrity of the investigation and could impair a

complainant’s willingness to cooperate in the investigation. There are factual

situations that may be revealed in the course of an investigation that, if made public,

would be not only embarrassing to a licensee, but also detrimental to a licensee’s

12 ultimately returning to practice in the profession. Mandating public disclosure of

such documents could, in many cases, serve to prejudice the licensee, especially in

cases where the allegations made by a complainant are baseless and unfounded. See

Doe v. Iowa Bd. of Med. Exam’rs, 733 N.W.2d 705, 709 (Iowa 2007). The legislature

had this concern squarely in mind when it enacted section 801.207(b).

D. The Final Judgment regarding the Board rules is in an improper advisory opinion and does not redress any alleged injury.

The Final Judgment contains findings and declarations regarding Board Rules

575.28 and 575.29 that are similar to the findings regarding section 801.207(b) of the

Act. Rule 575.28 addresses Board investigations. 22 Tex. Admin. Code § 575.28.

Rule 575.29 addresses informal conferences. 22 Tex. Admin. Code § 575.29. Neither

rule contains any language about the confidentiality of complaints submitted to the

Board against licensees. The current language in the finding and declaration,

therefore, would constitute an impermissible advisory opinion because the relief

granted (invalidating rules that do not concern confidentiality of complaints) goes

beyond the plain language of the rules and does not redress any alleged injury

suffered by Dr. Messonnier. See Tex. Comptroller of Pub. Accts. v. Walker Elec. Co.,

LLC, No. 03–13–00285–CV, 2014 WL 6612431, at *5 (Tex. App.—Austin Nov. 21,

2014, no pet.) (mem. op.) (Invalidating an agency rule would not redress a plaintiff's

complained-of injury; any opinion regarding the validity of the subject rule would

13 amount to an abstract advisory opinion.). See also Tex. Logos, L.P. v. Tex. Dep’t of

Transp., 241 S.W.3d 105, 123-124 (Tex. App.—Austin 2007, no pet.). It would be no

different had the lower court declared unenforceable Board Rule 573.64, regarding

continuing education requirements, because, just like the rules the court declared

invalid in this case, the continuing education rules do not concern confidentiality.

E. The findings and declarations in the Final Judgment do not limit the disclosure of complaints to third parties.

During the merits hearing, the trial court judge stated that the Board’s

concerns about the wide-ranging consequences of disclosing confidential complaints

were unfounded because, under the court’s ruling, complaints would only be

released to the licensee, not anyone else: “I just think you need to give it to the vet

who is the subject of the complaint. I don’t think -- I don’t think declaring this law

unconstitutional because it violates the due process clauses requires the vet board to

give the complaint to anybody else.” Tr. 34:10-15. App. Tab C (transcript of oral

argument). However, the current wording of the Final Judgment does not limit the

disclosure of a confidential complaint to Dr. Messonnier or other license holders

similarly situated.

The Final Judgment is flawed for additional reasons. The findings and

declarations in the Final Judgment directly contradict what the Board understands

to be the trial court’s intent to limit disclosure of complaints to licensees and not to

14 the public at large. To protect against the prohibited release of complaints, the Final

Judgment must provide that the Board shall continue to treat such complaints as

confidential after it releases the complaints to the subject licensee. The same is true

regarding Dr. Messonnier; he should also be prohibited from releasing complaints to

outside parties. The confidentiality statute is intended to protect the integrity of the

Board’s investigations. Allowing a licensee to release complaints to outside parties

would completely vitiate the confidentiality provisions in section 801.207(b). These

are additional reasons why the Final Judgment should be reversed.

PRAYER

Appellants respectfully request this Court to reverse that part of the district

court Final Judgment that grants Dr. Messonnier’s request for declaratory relief and

render judgment in favor of Appellants on all claims.

Appellants pray for such other and further relief, both general and special, at

law and in equity, to which they may be justly entitled.

Respectfully submitted,

KEN PAXTON Attorney General of Texas

BRENT WEBSTER First Assistant Attorney General

RALPH MOLINA Deputy First Assistant Attorney General

15 JAMES LLOYD Deputy Attorney General for Civil Litigation

ERNEST C. GARCIA Chief, Administrative Law Division

/s/ Ted A. Ross Ted A. Ross 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 Email: ted.ross@oag.texas.gov

Attorneys for Appellants, the Texas State Board of Veterinary Medical Examiners, and Brittaney Sharkey, solely in Her Official Capacity as Executive Director of the Texas State Board of Veterinary Medical Examiners

CERTIFICATE OF COMPLIANCE

I certify that the Appellant’s Brief on the Merits submitted complies with Rule 9 of the Texas Rules of Appellate Procedure and the word count of this document is 3,337. The word processing software used to prepare this filing and calculate the word count of the document is Microsoft Word 365.

/s/ Ted A. Ross Ted A. Ross

16 CERTIFICATE OF SERVICE

I hereby certify that on December 18, 2024, a true and correct copy of the above and forgoing document was served on the following party via electronic service and/or electronic mail:

J. Kirk Bryant (Lead Attorney) Texas Bar No. 03280550 kbryant@whitakerchalk.com Donald A. Ferrill Texas State Bar No. 00784047 dferril@whitakerchalk.com WHITAKER CHALK SWINDLE & SCHWARTZ PLLC 301 Commerce Street, Suite 3500 Fort Worth, Texas 76102-4186 PHONE: (817) 878-0500 FAX: (817) 878-0501

Attorneys for Appellee

17 APPENDIX

App. Tab A District court final judgment signed on July 2, 2024

App. Tab B Tex. Atty. Gen. OR2020-26067 (Oct. 16, 2020)

App. Tab C Transcript of Oral Argument at Trial Court Merits Hearing

18 APPENDIX TAB A 07/02/2024 03:10:25 PM Velva L. Price District Clerk Travis County D-1-GN-21-001211 NO. D-l-GN-21-001211

Shawn Messonnier DVM § INTHE98th § Plaintiff, § § v. § § DISTRICT COURT Texas State Board ofVeterin~ry § Medical Examiners and John M. § Helenberg, solely in his Officiil § Capacity as Executive Directo'r of the § Texas Board of Veterinary M~dical § Examiners ! § § Defendants. § OF TRAVIS COUNTY, TEXAS

FINAL JUDGMENT

This matter came before the Court for a merits hearing on this the 2nd day of July,

2024. Plaintiff, Shawn MessonnieJ, DVM, was present through his counsel of record, Kirk I ' Bryant, Whittaker Chalk Swindle 'land Schwartz LLC. Defendants, the Texas State Board ' of Veterinary Medical Examinery, and John M. Helenberg, were present through their

counsel of record, Assistant Attorney General Ted A. Ross, Office of the Attorney General. ! Having considered the parties' plejldings, briefs, and arguments of counsel, the Court finds ' that:

I. To the extent that Texas·occupations Code§ 801.207 (b), (2017) 1 is interpreted

to prohibit the release of complaints against Plaintiff and license holders similarly ! situated, is unconstitutioha! and unenforceable as to Plaintiff and license holders I

similarly situated as a vit iation of Plaintiff's due process rights under the United

SW~ ,rul T= Com•r oa•

1 Texas Occupations Code§ 801.207 (bi ' was amended in 2021. The 2017 version controls this case and any complaints submitted between Sepl'Fber I, 2017 and Seplember I, 202 1.

FINAL JUDGMENT Page-1- 716995 2. Board Rules, 22 TAC 575.28 and 29(2018) and all Board practices, formal and

informal, which fail to provide Plaintiff and license holders similarly situated with

actual notice of the complaints against them, including the specific factual

allegations thereof, are a violation of Plaintiff's due process rights under the

United States and Texas Constitutions.

It is therefore ORDERED, ADJUDGED AND DECREED THAT:

I. Texas Occupations Code§ 801.207 (b), (2017) is unenforceable to the extent the

same is interpreted to prohibit the release of complaints against Plaintiff and license

holders sim ilarly situated who are subject to Board Complaints.

2. Board Rules, 22 TAC 575.28 and 29 (2018) and all Board practices, formal and

informal are unenforceable to the extent the same are interpreted to prohibit the release

of complaints against Plaintiff and license orders similarly situated who are subject to

Board Complaints.

3. All relief requested by any party not specifically granted is hereby DENIED.

Signed this 2- day of July, 2024

Ma~ ~~ amble ~ Presiding Judge

FINAL JUDGMENT Page - 2 - 716995 APPENDIX TAB B KEN PAXTON ATTORNEY GENER.AL OF TEXAS

October 16, 2020

Ms. Valerie Mitchell Legal Secretary Texas Board of Veterinary Medical Examiners 333 Guadalupe, Suite 3-810 Austin, Texas 78701-3942

OR2020-26067

Dear Ms. Mitchell:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the “Act”), chapter 552 of the Government Code. Your request was assigned ID# 848580.

The Texas Board of Veterinary Medical Examiners (the “board”) received a request for information pertaining to the requestor’s client. The board claims the submitted information is excepted from disclosure under section 552.101 of the Government Code. We have considered the claimed exception and reviewed the submitted information.

Section 552.101 of the Government Code excepts from disclosure “information considered to be confidential by law, either constitutional, statutory, or by judicial decision.” See Gov’t Code § 552.101. Section 552.101 encompasses information made confidential by the current section 801.207 of the Occupations Code, which provides:

(b) Each complaint, investigation file and record, and other investigation report and all other investigative information in the possession of or received or gathered by the board or the board’s employees or agents relating to a license holder, an application for license, or a criminal investigation or proceeding is privileged and confidential and is not subject to discovery, subpoena, or other means of legal compulsion for release to anyone other than the board or the board’s employees or agents involved in discipline of a license holder.

Occ. Code § 801.207(b). The board states under its procedures, an investigation file is opened upon receipt of a complaint and any matters related to that complaint and

Post Office Box 12548, Austin, Texas 78711-2548 • (512) 463-2100 • www.texasattorneygeneral.gov

APPENDIX TAB B Ms. Valerie Mitchell - Page 2

subsequent investigation become part of the investigation record. The board informs us the submitted information relates to a complaint filed with the board after September 1, 2017, and is contained within the investigation file. The board also states section 801.207(d) does not apply. Based on these representations, we agree the board must withhold the submitted information under section 552.101 of the Government Code in conjunction section 801.207(b) of the Occupations Code.

This letter ruling is limited to the particular information at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other information or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at https://www.texasattorneygeneral.gov/open- government/members-public/what-expect-after-ruling-issued or call the OAG’s Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Public Information Act may be directed to the Cost Rules Administrator of the OAG, toll free, at (888) 672-6787.

Sincerely,

James L. Coggeshall Assistant Attorney General Open Records Division

JLC/jm

Ref: ID# 848580

Enc. Submitted documents

c: Requestor (w/o enclosures)

APPENDIX TAB B APPENDIX TAB C 1

1 REPORTER'S RECORD VOLUME 1 OF 1 VOLUME 2 TRIAL COURT CAUSE NO. D-1-GN-21-001211 3 4 SHAWN MESSONNIER DVM, ) IN THE DISTRICT COURT ) 5 Plaintiff ) ) 6 VS. ) ) 7 TEXAS STATE BOARD OF ) VETERINARY MEDICAL ) 8 EXAMINERS AND JOHN M. ) TRAVIS COUNTY, TEXAS HELENBERG, SOLELY IN HIS ) 9 OFFICIAL CAPACITY AS ) EXECUTIVE DIRECTOR OF THE ) 10 TEXAS BOARD OF VETERINARY ) MEDICAL EXAMINERS, ) 11 ) Defendants ) 98TH JUDICIAL DISTRICT 12 13 14 ------------------------------------------------- 15 REPORTER'S TRANSCRIPT OF PROCEEDINGS 16 -------------------------------------------------- 17 18 On the 2nd day of July, 2024, the 19 following proceedings came on to be heard in the 20 above-entitled and numbered cause before the Honorable 21 Maya Guerra Gamble, Judge presiding, held in Austin, 22 Travis County, Texas; 23 Proceedings reported by machine shorthand. 24 25

APPENDIX TAB C 2

1 A P P E A R A N C E S 2 3 ON BEHALF OF PLAINTIFF 4 J. KIRK BRYANT State Bar No. 03280550 5 WHITAKER, CHALK, SWINDLE & SCHWARTZ 301 Commerce Street, Suite 3500 6 Fort Worth, Texas 76102-4186 (817) 878-0500 7 8 ON BEHALF OF DEFENDANT 9 TED A. ROSS State Bar No. 24008890 10 Assistant Attorney General Administrative Law Division 11 OFFICE OF THE ATTORNEY GENERAL OF TEXAS P.O. Box 12548 12 Austin, Texas 787011-2548 (512) 475-4191 13 14 KELLY L. PHELPS State Bar No. 24121055 15 KRISTIN NICOLE STAVROU State Bar No. 24134511 16 TEXAS BOARD OF VETERINARY MEDICAL EXAMINERS 1801 Congress Ave, Suite 8-800 17 Austin, Texas 78701 (512) 305-7555 18 19 20 21 22 23 24 25

APPENDIX TAB C 3

1 I N D E X VOLUME 1 2 JULY 2, 2024 3 Page Vol 4 Announcements.......................... 5 1 5 Argument by MR. BRYANT................. 10 1 6 Argument by MR. ROSS................... 20 1 7 Ruling................................. 35 1 8 Adjournment............................. 47 1 9 Reporter's Certificate.................. 48 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

APPENDIX TAB C 4

1 EXHIBIT INDEX VOLUME 1 2 3 PLAINTIFF'S NO. DESCRIPTION OFFERED ADMITTED VOL 4 5 1-Correspondence 8 8 1 6 2-Correspondence 8 8 1 7 3-Email 8 8 1 8 4-Correspondence 8 8 1 9 5-Correspondence 8 8 1 10 11 12 13 14 DEFENDANT'S NO. DESCRIPTION OFFERED ADMITTED VOL 15 16 1-Allegations 8 8 1 17 2-Original Petition 8 8 1 18 3-Correspondence 8 8 1 19 20 21 22 23 24 25

APPENDIX TAB C 5

1 PROCEEDINGS 2 (The following proceedings were held in open court) 3 THE COURT: This is cause number 4 D-1-GN-21-001211, Messonnier -- 5 MR. BRYANT: Your Honor, I have been 6 pronouncing it Messonnier. My partner would know better 7 but he ain't here. 8 THE COURT: Okay, Messonnier versus 9 Attorney General, Helenberg, State Board of Veterinary 10 Medical Examiners. 11 Can I have announcements, please. 12 MR. BRYANT: Your Honor, I'm Joe Kent 13 Bryant with Whitaker Chalk out of Fort Worth for 14 Dr. Messonnier. 15 THE COURT: Thank you. 16 MR. ROSS: Good morning, Your Honor, Ted 17 Ross, Attorney General's Office. And I'm here with 18 Miss Kelly Phelps, who is the General Counsel of the vet 19 board, and then behind me is Miss Kristin Stavrou, who 20 is a vet board staff attorney. And we're here on behalf 21 of Defendants. 22 THE COURT: Okay. And in the back, 23 because it's a small -- or you're just observing? 24 SPECTATOR: I'm just observing. 25 THE COURT: Okay. All right. And then --

APPENDIX TAB C 6

1 all right. Are you, Mr. Ross, are you and Miss Phelps 2 intending to split your arguments? Or is just one of 3 you intending to handle it. 4 MR. ROSS: Personally -- oh, no, among 5 ourselves it will just be me. 6 THE COURT: All right. That sounds fine. 7 All right. So, typically in one of these 8 we admit a record. There isn't really a record in this 9 case. 10 MR. BRYANT: Correct. 11 THE COURT: So, do we need to admit 12 anything? 13 MR. BRYANT: Your Honor, both the Board 14 and the Plaintiff have both submitted exhibits. The 15 Plaintiff's Exhibits 1 through 5 through Box. I have a 16 copy and a binder for the Court, if you would like it. 17 THE COURT: Okay, I think you -- well, I 18 have -- is it -- are they included in what you sent in 19 before? I think so. But you can give me another one, 20 I'm happy to take it. 21 MR. BRYANT: Well, I sent you the hard 22 copy, a copy of our briefing. 23 THE COURT: Yes. 24 MR. BRYANT: These are our trial exhibits. 25 THE COURT: Okay. So that's --

APPENDIX TAB C 7

1 MR. BRYANT: I will tell you, they are the 2 same exhibits that are in the appendix, they're just 3 numbered for trial purposes 1 through 5 instead of A 4 through E. 5 THE COURT: That sounds wonderful. 6 They're not in Box, at least I haven't 7 found them yet. Let me just say that. I have found 8 three Defendant's exhibits in Box and a proposed final 9 judgment submitted by somebody, I don't know who because 10 I would have to open it. 11 MR. ROSS: That was me, Your Honor. 12 THE COURT: Okay, Defendant's proposed 13 order. And that's all that's in Box. But if you 14 brought it on paper, that's okay. 15 MR. BRYANT: I apologize. 16 THE COURT: I just need one or the other. 17 MR. BRYANT: I apologize, Your Honor, I 18 saw it in Box the other day. 19 May I approach? 20 THE COURT: Yes. Thank you. 21 That's okay. Sometimes -- I don't know. 22 It's fine. 23 MR. ROSS: I apologize, Your Honor, I 24 don't have a notebook with our exhibits. 25 THE COURT: That's fine.

APPENDIX TAB C 8

1 MR. ROSS: I thought if they were in 2 Box -- 3 THE COURT: It's totally fine. Either/or 4 is fine with me for these purposes. 5 But I do take it to -- am I correct in 6 understanding that you don't object to each other's 7 exhibits? 8 MR. BRYANT: I do not object to the 9 Defendant's exhibits. It's my understanding he does not 10 object to the Plaintiff's exhibits. 11 MR. ROSS: That's correct, Your Honor. 12 THE COURT: Okay. So, Plaintiff's 1 13 through 5 and Defendant's 1 through 3? 14 MR. ROSS: Yes, ma'am. 15 MR. BRYANT: Yes, ma'am. 16 THE COURT: Are admitted. 17 (Plaintiff's Exhibits 1 - 5 and Defendants 18 Exhibits 1 - 3 admitted.) 19 Sorry, let me just write this down. I 20 keep a little, just for my own sake, it's a little 21 easier to know in the future what happened if I write it 22 down. 23 MR. BRYANT: Certainly. 24 THE COURT: Okay. And then it seems like 25 we may want a record of the full proceeding, but if I'm

APPENDIX TAB C 9

1 wrong tell me. 2 MR. ROSS: Your Honor, I think -- I'm 3 sorry, I don't want to make the court reporter work any 4 harder than she already is, but because we have exhibits 5 and we're referring to them and everything, I think we 6 prefer -- 7 THE COURT: Yeah, and it's different than 8 a normal administrative appeal which comes after an 9 actual hearing with a record which is limiting. I feel 10 like I'm not really limited to anything for this appeal. 11 Okay, then we will stay on the record. Wonderful. 12 All right, here is what I've reviewed 13 already. And I did get ready and have reviewed things, 14 so hopefully that will help me understand everyone's 15 arguments. 16 And do we think we'll need all three 17 hours? 18 MR. BRYANT: I would be stunned were we to 19 need all three hours. 20 THE COURT: Okay. Me, too. Good. I was 21 like I'm here for you, but oh, my gosh, what are we 22 going to be talking about for three hours. 23 MR. ROSS: Your Honor, I would be 24 surprised if we go one hour, but I never know. 25 MR. BRYANT: I would -- we had a one-hour

APPENDIX TAB C 10

1 option at one point but I was just a little nervous 2 about taking away our option. 3 THE COURT: Yeah, it's smart because if 4 you had there would be a bunch more people waiting for 5 their time and instead of giving me three hours they 6 would have sent four hours and all the pressure. 7 So, I'm ready if you guys are. 8 MR. ROSS: Yes, ma'am. Yes, Your Honor. 9 MR. BRYANT: If it please the Court. 10 THE COURT: Yes. 11 MR. BRYANT: I am Kurt Bryant with 12 Whitaker Chalk law firm in Fort Worth. As the Court 13 noted, we do not believe this will take long. It's, 14 frankly, a very substantive but very simple matter 15 before the court. It's also a matter limited scope in 16 that the statute that is -- what we are attempting to do 17 is set aside as unconstitutional a provision of the 18 Occupations Code. The provision we're attempting to set 19 aside is unconstitutional and, of course, the rights 20 that follow it has been changed. 21 THE COURT: Oh, it has. 22 MR. BRYANT: It was changed in 2021. And 23 there's not been an attack in this lawsuit on the 2021 24 version because we didn't have a claim, to my knowledge, 25 that would be tied to the 2021 version.

APPENDIX TAB C 11

1 THE COURT: And this version went into 2 effect in 2018? 3 MR. BRYANT: This version went into effect 4 in 2017. 5 THE COURT: 2017. 6 MR. BRYANT: Directly into effect in 2018. 7 THE COURT: Okay. So, it was like a 8 September 1st law? 9 MR. BRYANT: September 1, 2017, 10 September 1, 2021. 11 THE COURT: Okay. 12 MR. BRYANT: The actions that are involved 13 in this case emanate from the 2009 -- 2019/2020 period. 14 THE COURT: Okay. 15 MR. BRYANT: So, they are covered by the 16 2018 version of the statute. I suspect, but I'm not 17 going to speculate, but I suspect there's not a whole 18 lot of 2021 and before cases still out there. So, the 19 scope of what we're asking is going to be narrow as far 20 as its actual practical effect. But as to 21 Dr. Messonnier and anybody else who had a claim pending 22 subject of the 2018 statute, it is essential. Because 23 the focus here is fundamental constitutional right. 24 Prior to 2018, the Board had routinely 25 provided the complaints of Veterinarian practice claims

APPENDIX TAB C 12

1 to the veterinarians in order to prepare for preliminary 2 conferences, informal conferences. And, in fact, 3 Plaintiff's Exhibit Number 5 is a 2018 Attorney General 4 opinion by -- 2009, I'm sorry, Attorney General opinion 5 by Governor Abbott when he was the Attorney General, 6 whereby the Board acknowledged, as did the A.G.'s 7 office, the constitutional implications of not providing 8 adequate due process to the Board. 9 And that can be found -- I believe it to 10 be in Plaintiff's Exhibit Number 5. I'm sorry I don't 11 have the specific pin cite, but it's towards the end, 12 when both the Board and Attorney General Abbott 13 acknowledged the constitutional implications. 14 In this case, after 2018, the Occupations 15 Code was amended to prohibit a public information 16 request for the complaints and to specifically prohibit 17 the disclosure to anybody of those complaints. And in 18 that circumstance when you had a complaint to a 19 veterinarian, you get a letter, which you can see in 20 Plaintiff's Exhibit Number 1, which says, in essence, we 21 have and believe -- Plaintiff's Exhibit number 1 says, 22 we have six animals that have contentions of potential 23 issues, please provide us a narrative form of the facts 24 and circumstances on those six animals. And that's 25 basically all it says.

APPENDIX TAB C 13

1 Dr. Messonnier attempted to comply. 2 They -- he met with the Board, met with the 3 investigators at some point. Nothing happened. And 4 then continued, you know, continued to work with them. 5 And then in 2020, Dr. Don Ferrill, who is a lawyer with 6 my office, requested copies of the complaints, at which 7 point -- and that's Plaintiff's Exhibit Number 3, at 8 which point the Board requested an A.G. opinion from 9 General Paxton, which denied the complaints. 10 And then in February of 2021, which is 11 Plaintiff's Exhibit Number 2, the Board sends to 12 Dr. Messonnier, care of Dr. Ferrill, a Veterinarian 13 Medical Examiner's Board letter noticing up a 14 preliminary -- or an informal conference on a -- on not 15 only the complaints that were the subject to the 2019 16 letter, but three new complaint numbers that we never 17 heard of, all of which apparently stem from whatever the 18 investigators found when they went to Dr. Messonnier's 19 clinic. 20 They did include basic allegations but no 21 factual underpinnings of those allegations, and I 22 believe those allegations are a part of Plaintiff's 23 Exhibit Number 2 and are also Defendant's Exhibit 24 number 3 -- number 1. 25 THE COURT: How, based on Plaintiff's

APPENDIX TAB C 14

1 Exhibit 1 and Plaintiff's Exhibit 2, how was 2 Dr. Messonnier supposed to know which of those complaint 3 numbers covered the information in Exhibit 1? I don't 4 see a complaint number in Exhibit 1 anywhere. The 5 letter from the Board. 6 Oh, there it is at the very top. Case 7 number. 8 MR. BRYANT: It's on case number. 9 THE COURT: Okay. And so they're saying 10 all of these complaints are in that one case number. 11 And then two years later they have added three more, but 12 he didn't get similar letters for those three. 13 MR. BRYANT: No, ma'am. 14 THE COURT: Okay. 15 MR. BRYANT: And what is important, a part 16 of what is important in Plaintiff's Exhibit Number 2 is 17 the last paragraph of Plaintiff's -- well, first off, in 18 the first paragraph Dr. Messonnier is invited to this 19 conference where he will be given ten minutes by Zoom to 20 say his case. And then in the last paragraph the 21 Enforcement Committee will deliberate and may dismiss 22 the complaint, may refer the complaint for further or 23 fine; and if a violation is found the Enforcement 24 Committee will inform you of their decision and may 25 propose a settlement.

APPENDIX TAB C 15

1 In our judgment, Your Honor, that's pretty 2 stinking critical. And at that point Dr. Messonnier has 3 still not been provided with the actual factual 4 underpinnings of the allegations against him. And, in 5 fact, to this day has not been provided the actual 6 factual underpinnings of the complaints against him. 7 Certainly we recognize what the statute 8 says. We have to, because otherwise I would be pretty 9 disingenuous. But we also recognize that Dr. Messonnier 10 has been practicing veterinarian medicine for 11 thirty-plus years, even though in the State's briefing 12 they argue it's a privilege, not a right, because it's a 13 regulated entity, I mean, the caselaw is clear that, 14 yes, and yes. It's both. 15 You go back to the State Board of 16 Accountancy case, which we have in our brief, which is 4 17 S.W.3d 429, and the cases following out of that. It is 18 a property right. And under the constitution, 19 Dr. Messonnier cannot be -- his property rights can not 20 be impaired without due process. 21 The State has taken the position in their 22 briefing that this is not an adjudicatory proceeding. 23 With all due respect, I disagree. When the actual 24 notice letter setting up this proceeding says the panel 25 will deliberate and may find, that is adjudicatory.

APPENDIX TAB C 16

1 Is there other layers on top of that? 2 Certainly. Can they go to SOAH if necessary? 3 Certainly. But you've got ten minutes to present to the 4 Board or to the Board's investigative committee why they 5 shouldn't do anything based on facts you don't know. 6 And if you don't like what they say, then you're stuck 7 with either going to SOAH or accepting a penalty that 8 you don't necessarily know is right. 9 That's violative of the constitution, 10 Texas and federal. And I believe we've adequately 11 addressed that in our briefing, Your Honor, I don't want 12 to just sit here and reread the briefs. 13 The other issue that comes through is in 14 the administrative regulations there is a requirement 15 that the Board provide Dr. Messonnier within 30 days of 16 request any documents it intends to provide in a 17 contested case under this subchapter. Contested case 18 under this subchapter. Contested case is nowhere 19 mentioned in the subchapter. Or formal complaint. 20 THE COURT: Right. 21 MR. BRYANT: Is nowhere else mentioned in 22 that subchapter. So, the only complaint mentioned is 23 the actual complaint. The Board has not provided even 24 the fundamental information required by the 25 administrative regs at that time to provide all the

APPENDIX TAB C 17

1 information they might produce at any contested case on 2 these complaints. 3 So, Your Honor, quite simply, we are 4 asking that 801.207(b) of the Texas Occupations Code as 5 amended in 2017 and as was in effect from 2017 6 through 2021 -- we are not addressing the '21 amendment, 7 just the 2017 version -- and Texas Administrative Code 8 22 TAC 575.28 and 29, which were in effect from 2018 9 through 2022, I believe, are unconstitutional because 10 they deprive Dr. Messonnier and others similarly 11 situated, veterinarians who have property right in their 12 license to fundamental due process prior to any informal 13 conference. 14 And we're asking the Court to enjoin the 15 application of those statutes and rules to those 16 parties; and we're asking the Court to order the State 17 through mandamus to produce that information and to 18 prohibit the Board from going forward with any 19 complaints -- any matters in these four complaints until 20 they have done so, Your Honor. In a nutshell, that's 21 what this case is about, so. 22 THE COURT: So, are these -- have these 23 been hanging over his head since this letter in 2019? 24 MR. BRYANT: Yes, ma'am. 25 THE COURT: All these complaints.

APPENDIX TAB C 18

1 MR. BRYANT: Yes, ma'am. 2 THE COURT: Including the three he's never 3 seen anything about. 4 MR. BRYANT: Correct. 5 Now, in all fairness, everybody got COVID. 6 THE COURT: Yes, that's true. 7 MR. BRYANT: And when we filed the 8 temporary -- we filed this case procedurally with an 9 application for a temporary restraining order. And as 10 soon as the State got informal notice of that we reached 11 a standstill agreement with the State that we would pull 12 down the TRO, we would pull down the request for 13 temporary injunction, and the State would not take any 14 further action pending a resolution of this case. 15 THE COURT: And then we had the pandemic. 16 MR. BRYANT: And -- I mean, this was 17 actually going on mid pandemic. 18 THE COURT: Oh, it was. 19 MR. BRYANT: But we were still working 20 through what in the world do we do post pandemic. 21 THE COURT: Uh-huh, uh-huh. 22 MR. BRYANT: And there had been some 23 slight delays after that because of various issues. We 24 were set in March, you had trial setting issues. 25 THE COURT: Yes, I apologize.

APPENDIX TAB C 19

1 MR. BRYANT: No, that's no problem. 2 THE COURT: Also, I think you guys didn't 3 send me any materials for your first setting. 4 MR. BRYANT: Correct. 5 THE COURT: So that wasn't my fault. 6 MR. BRYANT: That was not your fault, that 7 was my fault. 8 THE COURT: The second one might have been 9 my fault. 10 MR. BRYANT: I started in 1984 and I'm 11 learning electronic law, but I'm not necessarily fully 12 advanced. 13 THE COURT: Yeah, yeah. 14 MR. BRYANT: But those case have still 15 been hanging out there since this case has been filed, 16 nothing has happened on them, and -- 17 THE COURT: But they're not gone. 18 MR. BRYANT: They -- we've not been 19 informed that they're gone. And when Dr. Ferrill has 20 inquired of the Board it's my understanding they're 21 still reflected as open, but nothing has happened on 22 them. 23 THE COURT: Okay. I thought Ferrill was 24 his lawyer, another lawyer. 25 MR. BRYANT: He is a lawyer and a

APPENDIX TAB C 20

1 veterinarian. 2 THE COURT: Oh, he's both. Okay. Wow, 3 that's a -- that's a combo you don't hear about too 4 often. 5 MR. BRYANT: Yeah, he's an interesting 6 guy. He's been with us for five, six years, seven 7 years, I guess. And he's a great guy, but he does a lot 8 of veterinary work. 9 THE COURT: I would imagine. 10 All right. Thank you so much. 11 MR. BRYANT: Thank you. 12 MR. ROSS: Thank you, Your Honor. I'm an 13 attorney, I'm not a vet, but I have two pets that I care 14 about a lot. I'm sure you do, too. 15 Your Honor, there's no constitutional 16 right not to be investigated. This is what this is. 17 It's an investigation. And the statute is clear, 18 801.207(b), that each complaint, investigation file and 19 record, I know you know this, and other investigative 20 report, et cetera, is privileged and confidential, not 21 subject to discovery, subpoena, or other means of legal 22 compulsion. 23 And it's clear that the statute refers to 24 an investigation and there is not any enforcement 25 action. There may or may not be enforcement action.

APPENDIX TAB C 21

1 But when the Board gets a complaint, they can't -- I 2 mean, they have to investigate it. And I am unaware, I 3 mean these ISC statutes are in several other Texas 4 practice acts, the Medical Practice Act, I believe the 5 Pharmacy and Nursing Practice Acts, and there's a reason 6 for that. There's a reason for confidentiality of 7 investigations. 8 I think it's, you know, I think it's kind 9 of common knowledge, you're being criminally 10 investigated, a potential criminal defendant can't go to 11 the FBI or the local D. A. and say, give me everything 12 you're investigating me about. But there is a reason 13 for it. And the identity of the complainant, which I 14 think is what this is all about, is very, very important 15 to keep confidential. A complainant may or may not wish 16 to testify, and requiring the Board to provide 17 investigative information would violate the integrity of 18 the investigation and can even violate a complainant's 19 willingness to cooperate. 20 And it's also, Your Honor, the 21 confidentiality provision is also intended to protect 22 the licensee. For instance, this is not the case here, 23 but there are licensed professionals who can be subject 24 to substance abuse or other impairment issues and it 25 could be embarrassing to a licensee. And keep in mind,

APPENDIX TAB C 22

1 as you know, Your Honor, they're asking for this statute 2 to be -- to be held unconstitutional, not just as to 3 Dr. Ferrill. And the sweeping effect -- 4 THE COURT: Dr. Messonnier. 5 MR. ROSS: I mean, I'm sorry, 6 Dr. Messonnier. 7 THE COURT: He's not here, so we can say 8 it however we need to. 9 MR. ROSS: It could prejudice a licensee, 10 and that's especially if there are baseless allegations 11 in a complaint. And as we brief, once there is an 12 adjudicatory process in an action against a professional 13 licensee's license -- and yes, the professional licensee 14 is entitled to due process, that happens if and when 15 there's an enforcement action at SOAH. 16 They refer the case to SOAH and it's 17 just -- just like in District Court, you get discovery, 18 you have notice, you have hearings, you can confront 19 witnesses, brief the issues, fully argue. 20 That's -- that's where the due process is. But that 21 doesn't happen unless and until the Board can determine 22 whether a complaint has merit. 23 So yes, it's true that we say professional 24 license is a privilege, not a right, it's subject to 25 investigation. We don't dispute that if there is an

APPENDIX TAB C 23

1 adversarial hearing that there is entitlement to due 2 process. 3 Your Honor, with respect to the 2021 4 amendment that Mr. Bryant referred to, my understanding 5 of that amendment is that the new thing, and I'm 6 addressing this to kind of underscore the fact of what 7 the effect of holding these statutes and rules 8 unconstitutional would be, in the 2021 amendment there's 9 a new provision that says 14 days prior to the ISC a 10 medical review -- a medical review of cases requiring 11 medical expertise have to be provided to the 12 veterinarian. 13 That wasn't in the 2017 provision. But 14 everything else was. So, I would respectfully disagree 15 that a ruling in this case would be narrow and only 16 apply in this case and only apply to Dr. Messonnier. 17 With respect to the notice, the ISC 18 notices, Your Honor, in, let's see, it is Plaintiff's 19 Trial Exhibit Number 2 that Mr. Bryant referred to as 20 the February 23, '21, letter from Miss Valerie Mitchell 21 to the doctor. And you see in the re line there, that's 22 all the complaints that are a subject of the allegations 23 in this case. 24 And, as with the earlier letter, there are 25 informal conference allegations there, and that's

APPENDIX TAB C 24

1 attached to that letter. There are six investigative 2 findings that put Dr. Messonnier on notice of what this 3 is about, and then the next page is the potential 4 violations. 5 Now, with respect to an ISC, there is no 6 decision made with respect to discipline of a licensee 7 or action against a license. The Board -- I'm sorry, 8 the ISC panel can recommend filing a case at SOAH. They 9 can recommend dismissal of the complaint. But that is 10 not an adjudicatory process. The thing is, the purpose 11 of an ISC is to give the licensee an opportunity to show 12 compliance. And they have that full opportunity. The 13 licensee doesn't even have to go to an ISC if he or she 14 doesn't want to, it's to give the licensee the ability 15 and the opportunity to respond to the allegations. 16 And I think that Dr. Messonnier, what this 17 kind of whole case is about is confusing an 18 investigation with an enforcement proceeding. And the 19 statutes, we believe, and the rules are clear that an 20 ISC, and I'm unaware of any other case under any other 21 practice act that holds that an ISC is an adjudicatory 22 proceeding, and that is there for the licensee. 23 And let's see here, I think I'm about 24 done. 25 On the mandamus claim, Your Honor, and

APPENDIX TAB C 25

1 there are very few cases but there's a 1950 Amarillo 2 Court of Appeals case that says that, you know, mandamus 3 can't be used to compel an illegal act. Now, I 4 understand that Dr. Messonnier is asking the Court to 5 hold the statutes unconstitutional, but mandamus in and 6 of itself would not be proper unless and until that 7 happened. 8 And we strongly, strongly believe that's 9 not the case, and we are -- the Board is very concerned 10 about what the sweeping effect of a court's holding 11 these statutes to be unconstitutional would be and how 12 it would affect complainants and licensees. And that -- 13 I think that should be a very important consideration 14 for Your Honor. 15 Your Honor, I spent quite a bit of time 16 preparing for this and I think I'm done already, so. 17 THE COURT: Well, I'm curious how you 18 think, and I don't mean you personally, obviously, for 19 example, Dr. Messonnier could have ever shown up for 20 that meeting, whatever you want to call it, and defended 21 himself against CP20-350, CP20-351 or CP20-352. 22 MR. ROSS: Well, he had notice of the 23 allegations. 24 THE COURT: He did not. 25 MR. ROSS: Your Honor, the letters that I

APPENDIX TAB C 26

1 have in my exhibits, that's included, the -- 2 THE COURT: Did you point them out to me? 3 MR. ROSS: I did, Your Honor, I'm happy to 4 again. 5 THE COURT: I see the investigative 6 findings, which all relate -- 7 MR. ROSS: That's what I'm referring to. 8 THE COURT: -- all relate to CP19-202. 9 MR. ROSS: And, Your Honor, the 10 Plaintiff's Exhibit 7 -- 11 THE COURT: I don't have a Plaintiff's 12 Exhibit 7. 13 MR. ROSS: I'm sorry, that's my tab 14 number. Plaintiff's Exhibit 2. 15 THE COURT: That's what I'm looking at. 16 MR. ROSS: Okay. And it has the complaint 17 numbers, the one, two, three, four complaint numbers in 18 the re line there. 19 THE COURT: Right. But the problem is 20 why -- the first letter that was sent to him has the 21 CP19. 22 MR. ROSS: Uh-huh. 23 THE COURT: And it talks about six 24 animals, I guess, right? 25 MR. ROSS: April 13th -- April 3, 2019?

APPENDIX TAB C 27

1 THE COURT: Uh-huh. 2 So, there are some animals in this 2019 3 letter that are not in your Exhibit 1, and there are 4 other animals in your Exhibit 1 for which he never got a 5 letter. 6 It doesn't really matter. I mean, I -- I 7 just disagree entirely that this is not -- I mean, this 8 is not only an investigation. If it were, there would 9 be no problem. I agree, the Board can receive a 10 complaint and investigate and dismiss without ever 11 showing the vet the complaint. That seems totally 12 reasonable to me. Although, if I were the vet I would 13 want it, even when it were dismissed. And as you know, 14 or maybe you don't, maybe you've never had anyone file a 15 grievance, which would be great, but most of us who have 16 practiced for a long time get them because people get 17 mad. 18 MR. ROSS: Uh-huh, I have. 19 THE COURT: And then you get a letter and 20 it basically says, so and so said this and we've 21 dismissed it, it doesn't rise to the level of anything, 22 right? That would be fine, I think. That would be no 23 problem. That would not implicate due process at all. 24 But this is completely different, because 25 he's being asked to show up and defend himself and he

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1 has no idea what the complaint really says. And I just 2 don't think that's fair. I don't think that's what our 3 constitution envisions, and I don't think that's what 4 any -- I mean, not that this really matters for the 5 decision, but I just don't think that's what anyone in 6 Texas would say: Oh, yeah, that seems fair, I'm going 7 to file a complaint and he has to defend himself without 8 even knowing what it is. I mean, nobody would want to 9 be in that position themselves. 10 So, I think the minute the Board says, 11 show up and defend yourself and/or agree to a 12 settlement, it's changed what that proceeding is into 13 something else, and then I think due process is 14 implicated and the vet deserves a copy of the complaint. 15 MR. ROSS: Your Honor, I guess my response 16 to that would be again to reemphasize what I said 17 earlier, that an ISC is for the licensee, it's an 18 opportunity, it's a settlement conference, and they 19 don't -- I mean, he doesn't have to even come to the 20 ISC, you know, that's not even required. And it's part 21 of an investigative process. And there's no case or 22 statute that I'm aware of that says that an 23 investigatee, a professional licensee who is being 24 investigated, has a full right to an adjudicative 25 hearing and due process and provision of the complaint,

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1 even though it's confidential, at a conference where you 2 talk about, hey, here is what -- here are the 3 allegations. 4 And a lot of the allegations, you know, he 5 would be familiar with: Failure to keep proper records, 6 failure to -- with respect to violations respecting 7 medication and things like that. He knows, oh, there's 8 that dog, I treated that dog. It's just not a 9 proceeding that is subject to -- it's not a contested 10 case proceeding. And the licensee walks out of that, 11 his or her license is -- unless it's an emergency, his 12 or her license is still fully intact and no action can 13 be taken against it without full due process and a 14 contested case hearing. 15 THE COURT: Well, that can't be true, 16 because the letter suggests a settlement. 17 MR. ROSS: Well, the settlement is 18 offered. You don't have to accept the settlement. 19 THE COURT: Right, but that -- that is the 20 kind of process and pressure that violates the due 21 process clauses. Because -- because it attempts to 22 influence the -- in this case the licensee to agreeing 23 to something without all of the information. Because 24 it's reasonably a risk and probably terrifying to say 25 "no" to something like that when you don't know exactly

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1 what you're facing. 2 MR. ROSS: Your Honor, I'm not suggesting 3 that a licensee -- it's a pleasant experience, you know, 4 to get notice of a complaint and the opportunity to come 5 to an ISC. But again, I just have to state that a 6 settlement is offered and, you know, he has an 7 opportunity, the licensee, he or she has the opportunity 8 to respond to that. I don't agree with that. And it is 9 not uncommon in my experience for ISC -- well, strike 10 that, I'm unaware of any ISC that has been used to 11 tarnish or to take action against a licensee without 12 first going through due process at SOAH. 13 And again, I've said it before, I know 14 Your Honor knows our position, there's just no due 15 process rights in an investigation. It's a settlement, 16 he doesn't have to accept it, they can negotiate and 17 say, I'll do this, I'll do this. We're going to 18 recommend revocation, he can say, well, what about 19 public reprimand. You know, that's that process before 20 the licensee even has to be subject to disciplinary 21 action and an enforcement proceeding. 22 THE COURT: And I think all of that would 23 be great if the licensee could see what the complaint 24 was. 25 I also can imagine the way the letter was

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1 written, for example, where it just gives the licensee 2 the date the care for that animal began. I could 3 imagine a situation where the vet had cared for an 4 animal for many years and then they get a complaint that 5 says, you didn't properly record your medications. And 6 are they supposed to bring in ten minutes ten years of 7 records? 8 It's -- I think I agree with you up 9 through the investigation, but the minute the 10 investigation turns to a communication to the licensee 11 that something other than, we received a complaint and 12 we find it -- we find that we can dismiss it or we're 13 not going to take further action, I think it changes. I 14 think it changes the nature of that proceeding. So. 15 MR. ROSS: Okay, Your Honor, I appreciate 16 that. I -- 17 THE COURT: Yeah. 18 MR. ROSS: -- made my argument. I think 19 one thing, though, I would want to point out is that, 20 you know, I think Your Honor could, you know, whatever 21 the Court's inclined to do, could say more information 22 about the investigation without holding 207 completely 23 unconstitutional. You know. Because it's like 24 give -- give the complaint when 207(b) says -- 25 THE COURT: Don't --

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1 MR. ROSS: -- not subject to disclosing a 2 complaint, and that -- that will have a sweeping effect 3 on other practices. 4 THE COURT: Well, I don't know, for 5 example, I've had some rules cases before that were 6 more -- that were like a different kind of attack on the 7 rulemaking. Doesn't feel like that's the situation in 8 this case, it's different, what I'm being asked to do. 9 So I don't know that I can just, for example, tell the 10 Board that -- I don't think I can say, you guys need to 11 change your rules to make it so that once the 12 investigation is over and you think there's something 13 potentially actionable that you have to share the 14 complaint. I don't think I can do that. But if you 15 think I can, I'm open to hearing about it. 16 MR. ROSS: Well, I guess my argument is 17 just that we believe 207(b) is plain on its face. Each 18 complaint, you know, cannot be furnished, is not -- is 19 confidential not subject to judicial compulsion. So, if 20 the court were to mandamus the Board to provide the 21 complaints in this proceeding, we believe it would go 22 against the plain language of 207. 23 Now, Dr. Messonnier has asked for that 24 statute to be held unconstitutional. 25 THE COURT: Right.

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1 MR. ROSS: And that I think is the problem 2 and the broad implications. There might be, in a vet 3 board case or a medical board case, there might be a 4 situation where the complaint, like I mentioned, it 5 might have embarrassing allegations, it might -- it 6 might have, you know, if disclosed could subject the 7 licensee to harassment and embarrassment and things of 8 that nature regarding substance abuse and things like 9 that. And it would just have a sweeping effect that I 10 don't think was -- that I think would go against the 11 plain language of the statute. 12 THE COURT: Well, it definitely would, but 13 I don't think I'm allowed to rewrite the statute. I 14 think I have to make a decision up or down on the 15 statute. 16 MR. BRYANT: Your Honor, may I have one 17 clarification? Because, with all due respect to 18 Mr. Ross, he says that the Plaintiff is making this a 19 facial attack on the statute as a whole. And throughout 20 our Plaintiff's original petition it's as to Plaintiff 21 and license holders similarly situated. That's on 22 page 3, paragraph D. And this is real consistent with 23 the 2009 opinion by Governor Abbott, that the Board can 24 give the stuff to the license holder. We are not, per 25 se, saying, you know, gosh, Kirk wants to know what's

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1 going on with the vet next door, he doesn't have a pot 2 to pee in, but -- 3 THE COURT: Right, no, I was going to ask 4 about that, Mr. Ross. I don't -- the disaster you are 5 trying to convince me of seems unlikely. I don't know 6 why the vet board would decide, well, we're never going 7 to release the complaint to all because of the law. Now 8 the law has been held unconstitutional, so we're going 9 to publish the complaints on a web page or something. 10 I just think you need to give it to the 11 vet who is the subject of the complaint. I don't 12 think -- I don't think declaring this law 13 unconstitutional because it violates the due process 14 clauses requires the vet board to give the complaint to 15 anybody else. 16 MR. ROSS: We're not saying that, Your 17 Honor. 18 THE COURT: Okay. That's what I thought. 19 MR. BRYANT: That's what I heard. 20 MR. ROSS: I'm talking about in this case. 21 But I would take Your Honor back to the petition on 22 page 3, paragraph E, you know, I understood Mr. Bryant 23 to focus in on this, it's not just Dr. Messonnier, other 24 license holders similarly situated. 25 THE COURT: That's right.

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1 MR. ROSS: That's very broad. That's not 2 just Dr. -- 3 THE COURT: It is broad. I think it's 4 every vet who has a complaint that the Board just does 5 not dismiss. 6 MR. ROSS: Exactly. 7 THE COURT: I agree with that. But if 8 they all brought their case and it was exactly the same 9 as this one, I think I would feel the same about the 10 law. So. 11 I think at the end of the day I agree with 12 the Plaintiff that the law, as written, violates the due 13 process rights of the Plaintiff and other vets who have 14 complaints that the Board believes have some merit. And 15 so I believe those individuals deserve their due process 16 rights, which include knowing what the complaint against 17 them is. I don't -- I don't think our constitution 18 says, come and defend yourself, we aren't going to tell 19 you against what. That -- that feels like a Russian 20 novel from the past. I mean, it just doesn't -- it 21 doesn't fit our system. 22 So I am going to grant the Plaintiff's 23 request. 24 I don't have a proposed order from you, 25 Mr. Bryant. Do you have one on paper?

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1 MR. ROSS: Your Honor, may I have a 2 clarification on what request? Is it the -- 3 THE COURT: I want to look at how he wrote 4 his proposed order. 5 MR. BRYANT: And I will tell you, Your 6 Honor, I did not give it to counsel until this morning, 7 so he didn't have an opportunity -- 8 THE COURT: Okay, let me look at it, we 9 can look at it at the same time. 10 MR. BRYANT: Very good. 11 THE COURT: I actually think I probably 12 can both declare the statute unconstitutional and a 13 mandamus. I don't know if you're here to tell me the 14 Board would require that or if, based on the ruling, the 15 Board would change its behavior in this case without it. 16 I don't know. 17 MR. ROSS: Your Honor, I think there's -- 18 and I'm sorry, I don't have it, there's caselaw like on 19 rulings by court, the agency is presumed to comply, and 20 then if they don't -- 21 THE COURT: That's why I'm asking. 22 MR. ROSS: Yeah. 23 THE COURT: Yeah. So, you'll have 24 appellate rights, obviously. 25 MR. ROSS: Absolutely, and I --

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1 THE COURT: So I guess this will just sit 2 for a long more time. 3 MR. ROSS: Right. 4 THE COURT: But I don't -- I'm not opposed 5 to ordering the mandamus, but I don't think that I have 6 the evidence that I need to until the decision about the 7 unconstitutionality of this provision is final and the 8 Board still refuses to give Dr. Messonnier the 9 complaint, assuming it's final in the way I believe it 10 should be. Right? 11 Does that make sense? 12 MR. BRYANT: Sure. 13 THE COURT: Okay. So if you want to think 14 about that for a minute and tell me why I'm wrong, I'll 15 listen to you, but that was my take on it was that we 16 expect and assume all state agencies to follow the law. 17 I'm telling them the law is something different. They 18 have appellate rights which will postpone their 19 compliance, and that's fair to everyone, right, I mean 20 it's inconvenient but it's fair. And then eventually 21 some day they will comply or someone will tell me I'm 22 wrong, one of the two. 23 MR. ROSS: Yes, Your Honor, I agree. I 24 would never advise the Board to violate -- 25 THE COURT: Of course not.

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1 MR. ROSS: -- a court order or -- 2 THE COURT: Right. 3 MR. ROSS: And they wouldn't. 4 MR. BRYANT: Sure. 5 I mean, the only thing I'm thinking, and 6 Mr. Ross has duly acknowledged, there ain't a whole lot 7 of cases on mandamus. The only issue I was thinking in 8 filing that concurrently was, you know, is it something 9 that we mandatory have to file if the law says and, you 10 know, I'm not hearing him say, you know, they would 11 ignore that, so I can probably live with that. 12 THE COURT: I think you can always bring 13 it back it me -- 14 MR. BRYANT: And I think I could, too. 15 THE COURT: -- if it gets to that point. 16 MR. BRYANT: I'm just trying -- when I 17 filed this case I was trying to -- 18 THE COURT: No, you did anything -- I 19 don't think any of you have done anything wrong in the 20 filings, I'm not suggesting that. I'm just saying -- 21 MR. BRYANT: Well, I'm a little 22 embarrassed about the typos, but you know. 23 THE COURT: Okay. I think I might want to 24 tighten up number 2, let's think about that, because it 25 just says, the rules and the actual and threatened

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1 application thereof. And I haven't -- do these rules 2 specifically refer only to this, what do you call it, 3 ISC process and not beyond that? 4 MR. ROSS: Yes, Your Honor, I believe 5 that's the case. So, we're talking about 28 and 29. 6 THE COURT: Yes. They don't do anything 7 extra there. Because I don't want to -- 8 MR. BRYANT: 28, in all fairness, 28 I 9 think is significantly unchanged. 29 is the big one 10 that's -- because the -- as I read this correctly, 11 the -- oh, this is not correct, I apologize. 12 MR. ROSS: 29 is the ISC rule itself. 13 THE COURT: Okay. 14 MR. BRYANT: Mr. Ross, do you have the 15 current version or the 18 version? 16 MR. ROSS: Effective -- 28 is the 17 investigation rule, and it's effective May 15 of 2018. 18 And 575.29, the informal conferences rule, is effective 19 May 24 of 2023. 20 MR. BRYANT: So, that's not the rule 21 that's in play in this game. 22 THE COURT: Do I have the text of those 23 two rules anywhere in my papers up here? 24 MR. BRYANT: I don't know that I have 25 provided those, Your Honor, but I'll certainly --

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1 MR. ROSS: I can take these out of my 2 notebook if you want. 3 MR. BRYANT: But he's got the '23 rule, 4 not the -- 5 THE COURT: Well, I just want to make sure 6 that this order is as narrow as it should be and does 7 not exceed the scope of the dispute in front of me. And 8 since I don't have the TAC rules right in front of me, 9 28 and 29, to make sure that they are -- they don't -- 10 I'm not -- so, for example, if they also include rules 11 about -- let me see. I haven't read them so I don't 12 know exactly what they say. 13 So, if there's a provision that says the 14 Board can investigate and keep it private and dismiss, 15 period, that I'm not -- that's fine. I'm okay with that 16 rule. It's only when you move to this hearing, informal 17 hearing, as you guys call it, that I have a problem. 18 So, I'm just trying to make sure the rule doesn't -- I 19 don't want to take out anything that is okay. 20 MR. ROSS: Your Honor, I think that's 21 actually in the statute, and it's 80 -- well, we've been 22 talking about it today, 801.207(b) as in boy. 23 THE COURT: Yes. 24 MR. ROSS: No, I'm sorry, I'm sorry, I 25 apologize. It's 208 -- 801.408. Yeah, that's where

APPENDIX TAB C 41

1 that language is that says -- 801.408(c) talks about the 2 Board members and the committee shall recommend 3 enforcement action at the informal proceeding, and 4 that's for a complaint required medical expertise. But 5 I think this operative language is actually in the 6 statute, I don't think it's in the rule. 7 THE COURT: So, when you look at the 8 proposed order at number 2, both number 2's, are you 9 comfortable with that language, knowing you disagree, or 10 do you think I'm going to be causing a problem that I 11 don't intend to cause? 12 MR. ROSS: So, the -- I guess actually the 13 finding of number 2 on page 2 and then the actual decree 14 language in paragraph 2 -- well, we're talking about 15 575.28 and 29. And 28, I mean this is effective 2018, 16 it says that the respondent gets notice of the projected 17 time requirements of the complaint, and I don't think 18 that's really -- I don't think that that's really in 19 play here. I think 29 is the rule that addresses 20 specifically informal conferences, and so I think that's 21 the rule in question. 22 But again, that rule doesn't -- I mean 23 that rule really doesn't really say anything 24 about -- about the complaint and the complaint not being 25 confidential, that gets back to 207(b).

APPENDIX TAB C 42

1 THE COURT: Uh-huh. 2 MR. ROSS: And I guess I understand the 3 Court's ruling would be that it's the complaint itself 4 has to be provided or information about the complaint 5 has to be provided. 6 MR. BRYANT: Your Honor, if I may. 7 THE COURT: Well, I think that -- 8 MR. BRYANT: Actually, I'm just going to 9 suggest, you get a copy of the rules in Plaintiff's 10 Exhibit Number 2. 11 THE COURT: You're going to suggest that I 12 do what? I'm sorry. 13 MR. BRYANT: I'm sorry? 14 THE COURT: You suggest that I do what? 15 MR. BRYANT: You suggested that you didn't 16 have a copy of the rule, but when I look at Plaintiff's 17 Exhibit Number 2, the second page of Plaintiff's Exhibit 18 Number 2 appears to be from the Board, a copy. 19 THE COURT: Oh, good. No, I just asked if 20 I had it -- 21 MR. BRYANT: And I was -- 22 THE COURT: -- so I could find it. Here 23 it is. Okay. 24 MR. ROSS: I missed that. I apologize, 25 Your Honor.

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1 THE COURT: All right. So, for example, 2 (a) is okay. 3 MR. BRYANT: Yes, ma'am. 4 MR. BRYANT: So they're all fine except 5 that they need to -- he needs to get the actual 6 complaint. 7 MR. BRYANT: Correct. 8 MR. ROSS: And that goes back to 801.207, 9 where -- 10 THE COURT: That's the law, right? 11 MR. ROSS: Yeah. 12 THE COURT: And so maybe I need to work on 13 the order myself a little bit. But I'm going to remove 14 3 under Findings and 3 and 4 under orders, as we've 15 discussed. I don't think we need those. But maybe I 16 need to change the findings a little bit to -- well, no, 17 let me read it again, now that I've read that. 18 Okay. The Board rules -- I don't know 19 what 28 says, but 29 does fail to provide Plaintiff with 20 actual notice of the complaint against him, including 21 the specific factual allegations thereof. Because it 22 only requires a statement of the alleged violations. 23 MR. ROSS: And -- 24 THE COURT: But maybe I should -- maybe I 25 should put that in the language in here.

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1 MR. ROSS: 575.29(d) says the Board shall 2 provide the complainant respondent with reasonable 3 notice of the date, time and location. 4 THE COURT: No, it says informal 5 conferences regarding complaints requiring medical 6 expertise shall be conducted by an informal conference 7 panel comprised of two veterinarian board member and one 8 public board member. 9 There's no date on this page, so I don't 10 know, I guess I'm assuming this is the one in effect 11 during the years at question. 12 MR. BRYANT: This is the one that came 13 with the 2021 letter. 14 THE COURT: Okay. Then that's the right 15 one. 16 MR. BRYANT: Yes, that's why it's part of 17 the exhibit. And that's consistent with my research. 18 THE COURT: I think that that's right. 19 So, I'm -- I can add a little more 20 explanatory language to the order, or not. I think, you 21 know, you're going to re-argue the entire thing again, 22 so you guys can explain. But why don't I just say this, 23 okay -- 24 MR. ROSS: I think the rule is really -- 25 575.29, the way I read it, the current or the --

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1 THE COURT: The previous version? 2 MR. ROSS: Yeah, I just don't think that 3 says anything about furnishing a complaint. 4 THE COURT: Well, in (a) it just says 5 alleged violations, right? 6 MR. BRYANT: It's the absence in (a), 7 what's not to be provided. 8 THE COURT: Yeah. 9 MR. BRYANT: And the practical application 10 of that, which is what we're here about. 11 THE COURT: Uh-huh. 12 MR. ROSS: Again, I think it just goes all 13 the way back to the statute every time, but. 14 And there's not a cause of action, Your 15 Honor, for failure to adopt a rule in Texas. The court 16 just looks at the rule and is it unconstitutional, does 17 it conflict with the statute, et cetera. But there is 18 no cause of action for a failure to adopt a rule or to 19 amend a rule that I'm aware of. 20 THE COURT: I think I will do this: 21 Number 2, the findings says Board rules, blah, blah, 22 blah, and all Board practices, formal and informal. And 23 then I think I would add, because they do not provide 24 for the full complaint to be disclosed to the 25 Respondent, comma, fail to provide Plaintiff, et cetera.

APPENDIX TAB C 46

1 No other changes. So that I'm clear about which part is 2 the problem. 3 MR. BRYANT: Very good. 4 MR. ROSS: And I'm sorry, Your Honor, can 5 you say that again? 6 THE COURT: Absolutely. So, number 2, 7 Board rules, specifically including 22 TAC 575.28 and 8 29, 2018, and all Board practices, formal and informal, 9 comma, because they do not provide for the full 10 complaint to be disclosed to the Respondent, comma. No 11 other changes. 12 If you could send my office this in Word 13 so that I don't have to sign a real messy one. 14 MR. BRYANT: I can -- I happen to have it. 15 THE COURT: Great. 16 MR. BRYANT: I can probably send it to 17 Shannon right now, if my email will work. 18 THE COURT: That would be wonderful. 19 MR. ROSS: I assume, Your Honor, on the 20 findings and the order that number 1 and 2 stay in. 21 THE COURT: So, number 1, looks right to 22 me. And the order on number 2 is more limited, so I 23 think it works also because it only discusses failing to 24 provide actual notice of the complaint. Actually 25 it's -- yeah. So, that's -- that's weird. I need this

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1 in Word, I'm going to rewrite it a little bit. Because 2 that actually reads more like a finding. So, I'm going 3 to play around with it, but. 4 MR. BRYANT: I'm sending it to Shannon 5 right now, Your Honor. 6 THE COURT: Okay, great. 7 MR. ROSS: I would like to -- 8 MR. BRYANT: I'm copying you, of course. 9 THE COURT: I hope so. 10 Okay. All right. 11 MR. BRYANT: I have been subject to jail 12 now. And a grievance committee. 13 THE COURT: Yeah. 14 Okay, then I think that's everything. I'm 15 going to keep that, that's our exhibits, everything. 16 MR. BRYANT: Thank you, Your Honor. 17 MR. ROSS: Thank you, Your Honor. 18 THE COURT: Thank you both very much, and 19 I appreciate your hard work. 20 MR. ROSS: May we be excused? 21 THE COURT: Yes, everyone is excused. 22 (End of proceedings.) 23 24 25

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1 REPORTER'S CERTIFICATE 2 THE STATE OF TEXAS ) 3 COUNTY OF TRAVIS ) 4 I, Alicia DuBois, Official Court Reporter 5 in and for the 459th District Court of Travis County, 6 State of Texas, do hereby certify that the above and 7 foregoing contains a true and correct transcription of 8 all portions of evidence and other proceedings requested 9 in writing by counsel for the parties to be included in 10 this volume of the Reporter's Record, in the 11 above-styled and numbered cause, all of which occurred 12 in open court or in chambers and were reported by me. 13 I further certify that this Reporter's 14 Record of the Proceedings truly and correctly reflects 15 the exhibits, if any, offered in evidence by the 16 respective parties. 17 WITNESS MY OFFICIAL HAND this, the 17th 18 day of July, 2024. 19 /s/ Alicia DuBois Alicia DuBois, CSR 20 Texas CSR 5332 Exp. Date: 1/31/26 21 Official Court Reporter 459th District Court 22 Travis County, Texas 1700 Guadalupe 23 Austin, Texas 78701 (512) 854-9301 24 25

APPENDIX TAB C Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Jeff Lutz on behalf of Ted Ross Bar No. 24008890 jeff.lutz@oag.texas.gov Envelope ID: 95439006 Filing Code Description: Brief Not Requesting Oral Argument Filing Description: 2024 1218 Appellants Brief Status as of 12/18/2024 9:35 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Donald Ferrill 784047 dferrill@WhitakerChalk.com 12/18/2024 9:31:43 AM SENT

Joe Bryant 3280550 kbryant@whitakerchalk.com 12/18/2024 9:31:43 AM SENT

Jeff Lutz jeff.lutz@oag.texas.gov 12/18/2024 9:31:43 AM SENT

Ted Ross ted.ross@oag.texas.gov 12/18/2024 9:31:43 AM SENT