Texas State Board of Pharmacy v. Witcher
2014 Tex. App. LEXIS 11989
| Tex. App. | 2014Background
- Witcher held a Texas pharmacist license since 1987 and a North Carolina license since 1992 via reciprocity.
- North Carolina suspended Witcher’s license in April 2010 for impairment and rule violations; NC order linked to NCPRN monitoring and required NC advocacy for reinstatement.
- Witcher returned to Texas, enrolled in TxPRN, worked as a pharmacist, and claimed sobriety and fitness to practice in Texas.
- The Texas Board filed disciplinary proceedings to suspend Witcher’s Texas license under Tex. Occ. Code § 565.001(a)(16), asserting Witcher was disciplined by another state for conduct substantially equivalent to Texas violations.
- An ALJ recommended a five-year probated suspension; the Board, citing an unwritten reciprocal sanctions policy, suspended Witcher’s Texas license until North Carolina lifted its suspension and required simultaneous TxPRN monitoring.
- Witcher challenged in judicial review; the trial court reversed the sanction portion and remanded; the Court of Appeals held the reciprocal-sanctions policy to be a rule under the APA and invalid, remanding for sanction determination under properly promulgated rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the reciprocal sanction policy is a binding APA rule. | Witcher contends the policy is a binding rule affecting private rights. | Witcher asserts the policy is an internal management device or ad hoc rule. | The policy is a rule and invalid for lack of formal APA rulemaking. |
| Whether the Board properly promulgated the reciprocal rule or improperly used ad hoc rulemaking. | Witcher argues there was no proper promulgation; policy applied regardless of case facts. | Board claims no binding policy and that decisions were discretionary. | The rulemaking procedures were not followed; the court invalidated the rule and remanded. |
| Whether remand for sanction reconsideration under proper rulemaking was appropriate. | Remand allows reconsideration under valid rules. | Remand not necessary if sanction could be justified by facts. | Remand appropriate to determine sanction under properly promulgated rules. |
| Whether sovereign immunity issues affect Witcher’s claims against officials. | Immunity waived by APA; Board and officials not immune under 2001.171. |
Key Cases Cited
- El Paso Hosp. Dist. v. Texas Health & Human Servs. Comm’n, 247 S.W.3d 709 (Tex. 2008) (rulemaking; data-collection policy held to be a rule invalid for improper promulgation)
- Entertainment Publ’ns, Inc. v. Combs, 292 S.W.3d 712 (Tex. App.—Austin 2009) (bright-line policy deemed a rule of general applicability under APA)
- Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248 (Tex. 1999) (ad hoc rulemaking limits and requirement of formal rulemaking)
- WBD Oil & Gas Co. v. Railroad Comm’n of Tex., 104 S.W.3d 69 (Tex. 2003) (context of whether field rules can be challenged under APA; ad hoc rulemaking not discussed there)
- Rodriguez v. Service Lloyds Ins. Co. (duplicate), 997 S.W.2d 248 (Tex. 1999) (same as above)