George Allibone, M.D. v. Scott Freshour, in His Official Capacity as the Interim Executive Director of the Texas Medic Juanita Garner, Investigator of the Texas Medical Board Michael Arambula M.D., Pharm. D., in His Official Capacity as Member of the Texas Medical Board
03-17-00360-CV
| Tex. App. | Nov 21, 2017Background
- Texas Medical Board opened a formal investigation after a complaint alleging improper administration of a curcumin infusion to patient E.M., and sent Allibone notice requesting a narrative and completion of a questionnaire.
- The Board issued a subpoena duces tecum requiring Allibone to produce the complete medical and billing records for patient E.M.; the cover letter warned that failure to comply could be grounds for disciplinary action under Tex. Occ. Code § 160.009(b).
- Allibone refused to produce the records, filed suit seeking temporary and permanent injunctions and declaratory relief challenging the subpoena’s relevance and the constitutionality of § 160.009 and related Board rules, and sought findings of fact and conclusions of law from the trial court.
- The trial court reviewed the confidential complaint and records in camera, heard testimony from Board officials about the investigative need for full records, and found the subpoena reasonable in scope and valid, denied Allibone relief, and ordered compliance.
- Allibone appealed, arguing (1) the trial court abused discretion by refusing to issue findings and conclusions and (2) the subpoena was unreasonable/unrelated to the investigation and statutory scheme allowing discipline for noncompliance was unconstitutional as applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial court’s refusal to issue findings of fact and conclusions of law | Allibone: denial of requested findings is reversible error requiring remand for findings | Board: trial court acted within discretion; Allibone also failed to follow Rule 297 to preserve complaint | Waived and harmless — Allibone failed to file a past-due notice under Tex. R. Civ. P. 297; any error would be harmless; no reversible error |
| Whether subpoena was reasonable/relevant under the Fourth Amendment and administrative-law standards | Allibone: subpoena overbroad; full medical and billing records exceed the specific allegations in notice and are irrelevant | Board: complaint (not the notice letter) defines scope; full records and billing are necessary to put complaint in context and to determine standard of care; physician cannot gatekeep relevance | No abuse of discretion — trial court properly reviewed complaint in camera, Board presented unrebutted evidence that full records were relevant; subpoena reasonable and valid |
| As-applied constitutional challenge to Tex. Occ. Code § 160.009 (discipline for noncompliance) | Allibone: statute is unconstitutional as applied because it permits discipline without pre-compliance judicial review | Board: statute authorizes investigation and possible disciplinary process but provides procedural protections; no automatic sanction; Board follows notice and ISC procedures | Rejected — Allibone did not meet heavy burden; record supports that statute, as applied, did not operate unconstitutionally in his circumstances |
| Facial challenge to Board rules re: discipline for failing to cooperate (UDJA claim) | Allibone: rules render subpoenas unreviewable and subject licensees to discipline without pre-compliance review | Board: procedural posture and UDJA limitations preclude attacking rules here; trial court limited review to subpoena reasonableness | Not considered under UDJA — court noted UDJA claims challenging rules fall outside scope; trial court appropriately resolved the merits of subpoena and as-applied statutory claim |
Key Cases Cited
- McLane Co. v. Equal Emp’t Opportunity Comm’n, 137 S. Ct. 1159 (2017) (standard: enforcement of administrative subpoenas reviewed for abuse of discretion)
- Schade v. Texas Workers’ Comp. Comm’n, 150 S.W.3d 542 (Tex. App.—Austin 2004) (administrative subpoenas must be relevant to authorized investigative purpose)
- Oklahoma Press Publ’g Co. v. Walling, 327 U.S. 186 (1946) (administrative subpoenas are discovery tools to determine whether charges should be brought)
- United States v. Zadeh, 820 F.3d 746 (5th Cir. 2016) (administrative search and subpoena relevance discussion)
- Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002) (abuse-of-discretion standard explained)
- Patel v. Texas Dep’t of Licensing & Regulation, 469 S.W.3d 69 (Tex. 2015) (presumption of constitutionality for statutes; challenger bears high burden)