565 S.W.3d 26
Tex. App.2017Background
- Dr. Ruben Aleman, a licensed Texas physician, signed a paper death certificate for decedent J.S. on July 29, 2011 instead of submitting the medical certification electronically through the Texas Electronic Death Registration (TEDR) system as required by Tex. Health & Safety Code § 193.005(h).
- The Texas Medical Board filed a formal complaint in May 2013 alleging Aleman violated § 193.005(h) and thus committed unprofessional or dishonorable conduct under Tex. Occ. Code § 164.052(a)(5) (via § 164.053(a)(1)).
- Aleman moved to dismiss, arguing the Board lacked jurisdiction because the formal complaint was not a written affidavit as required by Tex. Occ. Code § 164.005; the ALJ denied the motion.
- After a contested-case hearing, the ALJ found Aleman violated § 193.005(h) and that the violation constituted prohibited conduct; the Board adopted the ALJ’s findings and ordered remedial measures, a $3,000 administrative penalty, and reporting requirements.
- Aleman sought judicial review in Travis County; the trial court affirmed the Board’s order except for deletion of waiver-language tied to statutory notice periods; Aleman appealed.
Issues
| Issue | Aleman’s Argument | Board’s Argument | Held |
|---|---|---|---|
| Jurisdiction — form of formal complaint | Formal complaint was not a written affidavit under Tex. Occ. Code § 164.005(c) (no personal knowledge by staff attorney), so Board lacked jurisdiction | Complaint was written, signed, and sworn before a notary; statutory definition of "affidavit" does not require personal knowledge; Board authorized to institute charges by representative | Court: Complaint met statutory "affidavit" definition; no jurisdictional defect; issue overruled |
| Judicial notice of "jurisdictional facts" | ALJ should have judicially noticed facts showing lack of jurisdiction (e.g., complaint not sworn) | Complaint complied with § 164.005; facts Aleman sought to notice did not show lack of jurisdiction | Court: Denial proper; noticing would not change that complaint complied with statute; issue overruled |
| Substantial-evidence for finding of prohibited conduct | Failure to show that signing paper death certificate is "unprofessional or dishonorable conduct" connected to practice of medicine; needed expert proof or proof of connection | Evidence showed Aleman was certifying physician, failed to use TEDR, and violation of state law connected to practice; statutory definition covers violations of state law connected to practice | Court: Substantial evidence supports finding; violation was connected to his practice; issue overruled |
| Impossibility/agency excuse defense | Death certificate "dropped to paper" made electronic certification impossible; Aleman could not have complied | "Dropped to paper" occurred because no medical certifier had registered; Aleman did not enroll in TEDR until after signing, so impediment was his own | Court: ALJ not required to find legal impossibility; defense rejected |
| Sanctions excess/arbitrary | Penalty ($3,000), exam, and CME exceed Board guidelines and statutory authority; Board acted arbitrarily | Rule 190.14 provides guidelines but not mandatory limits in contested hearings; sanction below maximum revocation/penalty and similar to agreed-order range | Court: Sanction within Board discretion and statutory authority; not arbitrary or capricious |
| Request for sanctions against Board staff (Rule 13 / Tex. Civ. Prac. & Rem. Code ch. 10) | Board staff pleadings were frivolous/bad-faith; Aleman sought attorneys’ fees/sanctions | No evidence the Board filed pleadings in bad faith; inclusion of certain allegations did not show abuse of process | Court: No basis in record for sanctions; denial not an abuse of discretion |
Key Cases Cited
- Kerlin v. Arias, 274 S.W.3d 666 (Tex. 2008) (affidavit evidentiary-value requires personal-knowledge for summary-judgment context)
- In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218 (Tex. 2004) (personal-knowledge requirement for affidavits in certain contexts)
- Texas State Bd. of Dental Exam'rs v. Sizemore, 759 S.W.2d 114 (Tex. 1988) (substantial-evidence standard for agency orders)
- Texas Health Facilities Comm'n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446 (Tex. 1984) (agency determinations may be upheld even if evidence preponderates against them)
- GTE Commc'ns Sys. Corp. v. Tanner, 856 S.W.2d 725 (Tex. 1993) (presumption that pleadings are filed in good faith under Rule 13)
- Mattox v. Grimes Cty. Comm'rs Court, 305 S.W.3d 375 (Tex. App.—Houston [14th Dist.] 2010) (abuse-of-discretion review for trial-court sanctions)