Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 2/18/2015 2:08:16 PM JEFFREY D. KYLE Clerk NO. 03-14-00644-CV THIRD COURT OF APPEALS 2/18/2015 2:08:16 PM JEFFREY D. KYLE 03-14-00644-CV AUSTIN, TEXAS *1 ACCEPTED [4195619] CLERK _____________________________________________________________ IN THE COURT OF APPEALS THIRD DISTRICT OF TEXAS AUSTIN, TEXAS
_____________________________________________________________ JOSE A. PEREZ,
Appellant ,
v. TEXAS MEDICAL BOARD, et al. , Appellees .
____________________________________________________ On Appeal from the 53rd Judicial District Court of Travis County, Texas No. D-1-GN-14-001172
____________________________________________________ APPELLEES’ BRIEF
____________________________________________________ KEN PAXTON TED A. ROSS
Attorney General of Texas Assistant Attorney General
State Bar No. 24008890 CHARLES E. ROY O FFICE OF THE T EXAS A TTORNEY
First Assistant Attorney General G ENERAL
A DMINISTRATIVE L AW D IVISION JAMES E. DAVIS P.O. Box 12548
Deputy Attorney General for Austin, Texas 78711-2548
Civil Litigation Telephone: (512) 475-4191
Facsimile: (512) 457-4674 DAVID A. TALBOT, JR. Email: ted.ross@texasattorneygeneral.gov
Chief, Administrative Law Division Attorneys for Texas Medical Board and
Mari Robinson
ORAL ARGUMENT NOT REQUESTED February 18, 2015
IDENTITY OF PARTIES AND COUNSEL Parties to the Trial Court’s Order:
Defendants /Appellees: Texas Medical Board; Mari Robinson, in her Official Capacity
Plaintiff/Appellant: Jose A. Perez
__________________________________
Counsel:
For Appellees :
Ted A. Ross
Assistant Attorney General
State Bar No. 24008890
O FFICE OF THE T EXAS A TTORNEY G ENERAL
A DMINISTRATIVE L AW D IVISION
P.O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 475-4191
Facsimile: (512) 457-4674
Email: ted.ross@texasattorneygeneral.gov
For Appellant, Jose A. Perez, pro se :
Jose A. Perez, pro se
34 Candle Pine Place
The Woodlands, Texas 77381
Email: theaesculapius@gmail.com
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES ...................................................................................... v
RECORD AND PARTY REFERENCES ............................................................. viii
STATEMENT OF THE CASE ................................................................................ ix
REQUEST FOR ORAL ARGUMENT ..................................................................... x
ISSUES PRESENTED FOR REVIEW ................................................................... xi
STATEMENT OF FACTS ........................................................................................ 2
SUMMARY OF THE ARGUMENT ........................................................................ 4
ARGUMENT ............................................................................................................. 6
I. THE DISTRICT COURT LACKED JURISDICTION OVER PEREZ’S SUIT FOR JUDICAL REVIEW. .............................................. 6 Standard of Review Governing Pleas to the Jurisdiction ........................... 6 A. Perez failed to meet the statutory prerequisites for judicial review. . 6 II. THE DISTRICT COURT LACKED JURISDICTION OVER PEREZ’S CONSTITUTIONAL CLAIMS. .............................................11 III. THE DISTRICT COURT LACKED JURISDICTION OVER PEREZ’S “INVERSE CONDEMNATION” CLAIM. ............................13 IV. THE DISTRICT COURT LACKED JURISDICTION OVER PEREZ’S CLAIM FOR VIOLATION OF THE FAIR CREDIT REPORTING ACT. ..................................................................................14 iii
V. THE DISTRICT COURT LACKED JURISDICTION OVER
PEREZ’S CLAIMS AGINST APPELLEE MARI ROBINSON. ............15 CONCLUSION AND PRAYER .............................................................................17
CERTIFICATE OF COMPLIANCE .......................................................................18
CERTIFICATE OF SERVICE ................................................................................18
iv *5 INDEX OF AUTHORITIES Cases
Berry v. Tex. Democratic Party , 449 S.W.3d 633 (Tex. App.—
Austin 2014, no pet.) ..................................................................................... passim
C.L. Westbrook, Jr. v. Penley , 231 S.W.3d 389 (Tex. 2007) .................................... 6
City of Dallas v. Stewart , 361 S.W.3d 562 (Tex. 2012) ..........................................12
City of DeSoto v. White , 288 S.W.3d 389 (Tex. 2009). ............................................. 8
City of El Paso v. Heinrich , 284 S.W.3d 366 (Tex. 2009) ............................... 15, 16
Gilmer Indep. Sch. Dist. v. Dorfman , 156 S.W.3d 586 (Tex.
App.—Tyler 2003, no pet.) ...................................................................................11
Harris Cnty. v. Sykes , 136 S.W.3d 635 (Tex. 2004) .................................................. 6
Heart Hosp. IV., L.P. v. King , 116 S.W.3d 831 (Tex. App.—Austin 2003,
pet. denied) .............................................................................................................. 7
In re Perez , No. 03-13-00021-CV, 2013 WL 150274 (Tex. App.—
Austin Jan. 11, 2013, no pet.) ................................................................................. 4
Little v. Tex. Bd. of Law Exam’rs , 334 S.W.3d 860 (Tex. App.—
Austin 2011, no pet.) ...........................................................................................6, 8
Perez v. Texas Medical Bd. , 556 Fed. Appx. 341 (5th Cir. 2014) ............................. 4
Perez v. Texas Medical Bd. , Nos. 03-12-00610-CV and 03-12-00715-CV,
2013 WL 1876458 (Tex. App.—Austin May 13, 2013, no pet.) ........................... 3
Prairie View A&M Univ. v. Chatha , 381 S.W.3d 500 (Tex. 2012) ........................... 7
Scally v. Tex. State Bd. of Med. Examn’rs , 351 S.W.3d 434
(Tex. App.—Austin 2011, pet. denied) .................................................................13
Sierra Club. v. Tex. Natural Res. Conservation Comm’n , 26 S.W.3d 684
(Tex. App—Austin 2000) .......................................................................... 7, 10, 11
v
Tex. Ass’n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440 (Tex. 1993) ................. 6
Tex. Comm’n on Envtl. Quality v. Kelsoe , 286 S.W.3d 91 (Tex. App.—
Austin 2009, no pet.) .............................................................................................12
Tex. Dep’t of Protective and Regulatory Servs. v. Mega Child Care, Inc. ,
145 S.W.3d 170, 198 (Tex. 2004) ........................................................................... 7
Tex. Natural Res. Conservation Comm’n v. IT-Davy , 74 S.W.3d 849
(Tex. 2002) ............................................................................................................15
Tex. Parks & Wildlife Dep’t v. Sawyer Trust , 354 S.W.3d 384 (Tex. 2011) ..........15
Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex. ,
136 S.W.3d 643 (Tex. 2004) .................................................................................12
Thomas v. Long , 207 S.W.3d 334 (Tex. 2006) .......................................................... 8
Westgate, Ltd. v. State , 843 S.W.2d 448 (Tex. 1992) ..............................................13
Rules
1 Tex. Admin. Code § 155.501(d) ............................................................................. 2
Tex. R. Civ. P. 329b(c) .............................................................................................. 4
45 C.F.R. § 60.9 .......................................................................................................15
Statutes
15 U.S.C. § 1681a(d) ...............................................................................................14
42 U.S.C. 11101 .......................................................................................................15
Tex. Civ. Prac. & Rem. Code § 37.001 ...................................................................15
Tex. Gov’t Code §§ 2001.051-.062 .........................................................................17
Tex. Gov’t Code § 2001.003(7) ................................................................................. 9
vi
Tex. Gov’t Code § 2001.171 ...................................................................................... 7
Tex. Gov’t Code § 2001.174 ................................................................................9, 10
Tex. Gov’t Code § 311.034 ........................................................................................ 7
Tex. Occ. Code §§ 204.001-.353 ............................................................................... 8
Tex. Occ. Code § 204.058 ...................................................................................9, 17
Tex. Occ. Code § 204.101 ......................................................................................... 8
Tex. Occ. Code § 204.102(a) ..................................................................................... 9
Tex. Occ. Code § 204.151 ......................................................................................... 8
Tex. Occ. Code § 204.201 ......................................................................................... 8
Tex. Occ. Code § 204.251 ...................................................................................8, 17
Tex. Occ. Code § 204.301 ......................................................................................... 9
vii *8 RECORD AND PARTY REFERENCES References to the clerk’s record will be “CR ____.”
References to the supplemental clerk’s record will be “Supp. CR ____.”
Appellees, the Texas Medical Board and Mari Robinson, will be collectively
referred to as the “TMB” unless otherwise specified.
Appellant, Jose A. Perez, will be referred to as “Perez.”
viii *9 STATEMENT OF THE CASE See the TMB’s Statement of Facts and Statement of Facts below.
ix *10 STATEMENT REGARDING ORAL ARGUMENT The TMB believes that the facts in this appeal are not disputed and that the applicable law is straightforward. The TMB therefore does not believe that oral
argument would assist the Court on the factual and legal issues involved in this
appeal.
x *11 ISSUES PRESENTED FOR REVIEW I.
Whether the district court had subject matter jurisdiction over Perez’s suit for
judicial review of the PAB revocation order, given that he failed to sue the state
agency that revoked his license.
II.
Whether the district court had subject matter jurisdiction over Perez’s constitutional
claims.
III.
Whether the district court had subject matter jurisdiction over Perez’s “inverse
condemnation” claim.
IV.
Whether the district court had subject matter jurisdiction over Perez’s claim under
the federal Fair Credit Reporting Act.
V.
Whether the district court had subject matter jurisdiction over any claim Perez may
deem to have asserted over Appellee Mari Robinson in her capacity as Executive
Director of the PAB.
xi
NO. 03-14-00644-CV _____________________________________________________________ IN THE COURT OF APPEALS THIRD DISTRICT OF TEXAS AUSTIN, TEXAS
_____________________________________________________________ JOSE A. PEREZ,
Appellant ,
v. TEXAS MEDICAL BOARD, et al. , Appellees .
____________________________________________________ On Appeal from the 53rd Judicial District Court of Travis County, Texas No. D-1-GN-14-001172
____________________________________________________ APPELLEES’ BRIEF
____________________________________________________ TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
Appellees, the Texas Medical Board, and Mari Robinson, in her Official Capacity (collectively “TMB”), by and through the Office of the Attorney General
of Texas and the undersigned Assistant Attorney General, submits the following
brief in the captioned interlocutory appeal.
STATEMENT OF FACTS AND STATEMENT OF THE CASE The “Statement of Facts” in the brief filed by Appellant pro se , Jose A. Perez (“Perez”), contains statements which are unsupported and irrelevant to the issue in
this appeal. The TMB therefore proffers the following statement of facts and
statement of the case.
Perez was a licensed physician until his license was revoked by the PAB on March 7, 2014. Supp. CR 70-73 (“Order”). The underlying PAB proceeding arose
when a patient filed a complaint alleging that Perez (1) inappropriately responded
by making rude and dismissing comments to the patient; (2) improperly terminated
the examination and care of the patient without referral to either his supervising
physician or another healthcare provider; and (3) failed to document the patient’s
complaint, the parts of the examination that Perez had completed or his termination
of the patient due to his interaction with the patient. Supp. CR 70-71, ¶ 4.
Perez filed an answer to the complaint, but he otherwise steadfastly refused to appear and defend himself in the proceeding, including refusing to appear at the
contested case hearing at the State Office of Administrative Hearings (“SOAH”).
Supp. CR 71 ¶ 7-8. The administrative law judge therefore issued an order
dismissing the case on a default basis pursuant to 1 Tex. Admin. Code § 155.501(d).
The file was returned to the PAB for informal disposition on a default basis. Supp.
CR 71, ¶ 9. The PAB subsequently issued the Order, which adopted the allegations
in the complaint and revoked Perez’s license based on unprofessional or
dishonorable conduct and failure to maintain adequate medical records. Supp. CR
72-73. The PAB also based its revocation decision on the aggravating factors of
intentional, premeditated, knowing acts constituting violations. Supp. CR 73, ¶ B.
After the Order became final, Perez sued the TMB, not the PAB , by filing a “Petition to Quash an Administrative Order and Inverse Condemnation and Takings
Claim and Memorandum of Law in Support” (“Petition”). CR 3-51. He appears to
seek judicial review of the Order in his “Causes of Action” “a” through “t” of the
Petition. CR 17-45. He asserts various reasons as to why the Order should be set
aside. His also asserted constitutional claims as well as claims based on “inverse
condemnation” and violation of the federal Fair Credit Reporting Act (“FCRA”).
CR 45-50. Perez also sued Mari Robinson, the TMB’s Executive Director, alleging
only that “[t]he vested rights identified herein are well known to (her)” and that “she
acted without legal authority and had a ministerial duty to abstain from transgressing
upon the same.” CR 17. [1]
*15 The TMB filed a Plea to the Jurisdiction, Original Answer and General Denial, and Affirmative Defenses on May 23, 2014. CR 52-55. The district court then
issued an order stating that it would consider the plea on submission, and issued a
briefing schedule. CR 61-62. The TMB then filed a First Amended Plea to the
Jurisdiction (“PTJ”) on August 8, 2014. CR 63-66. After Perez filed a response, the
district court granted the plea through its order dated September 5, 2014. CR 91.
The Court entered a final judgment dismissing all of Perez’s claims with prejudice
on September 18, 2014. CR 141. On October 6, 2014, Perez filed a motion for new
trial which was overruled by operation of law. CR 142-70; Tex. R. Civ. P. 329b(c).
He filed a notice of appeal on the same date. CR 171-72.
SUMMARY OF THE ARGUMENT It is undisputed that Perez did not sue the state agency that revoked his license.
The requirement to sue the agency with jurisdiction over a licensee is a statutory
prerequisite for judicial review. In addition, Perez failed to invoke the district court’s
(mem. op.). They also unsuccessfully sought mandamus relief in this Court, seeking to enjoin
Mr. Perez’s ongoing disciplinary proceeding at the PAB. In re Perez , No. 03-13-00021-CV, 2013
WL 150274 (Tex. App.—Austin Jan. 11, 2013, no pet.) (mem. op.). Continuing his refusal to
recognize the PAB’s jurisdiction over its licensee, Mr. Perez and his wife also sued the TMB and
Ms. Robinson in federal court in Austin, asserting many of the same claims that were rejected.
Judge Sparks issued two orders dismissing the various complaints filed by the Perezes, wherein he
squarely rejected all of their claims. After a motion for new trial, the Perezes appealed the federal
court’s final judgment to the Fifth Circuit Court of Appeals, again unsuccessfully. Perez v. Texas
Medical Bd. , 556 Fed. Appx. 341 (5th Cir. 2014).
jurisdiction over his constitutional claims, since such claims are also part of the
statutory prerequisites for judicial review.
The district court also lacked subject matter jurisdiction over Perez’s “inverse condemnation” claim. A professional license is not “real property” which could be
subject to an inverse condemnation claim. Also, the revocation of a professional
license is not a “physical appropriation or invasion.”
Perez’s claim under the federal Fair Credit Reporting Act also fails for lack of subject matter jurisdiction. The FCRA clearly does not apply to any report by the
TMB or the PAB to the National Practitioner Data Bank (“NPDB”).
Finally, Perez also failed to invoke the district court’s subject matter jurisdiction over any claim he may have stated against Ms. Robinson in her capacity
as the Executive Director of the PAB, including any claim under the Uniform
Declaratory Judgment Act. He did not, and cannot, plead any ultra vires act on her
part, since any actions on the part of any state official regarding license revocation
proceedings are discretionary and not ministerial.
For the foregoing reasons, to be discussed more fully below, the district court’s final judgment granting Appellees’ plea to the jurisdiction and dismissing
Perez’s claims with prejudice was proper.
ARGUMENT
I. THE DISTRICT COURT LACKED JURISDICTION OVER PEREZ’S
SUIT FOR JUDICAL REVIEW.
Standard of Review Governing Pleas to the Jurisdiction
A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject-matter jurisdiction. Little v. Tex. Bd. of Law Exam’rs , 334 S.W.3d
860, 862 (Tex. App.—Austin 2011, no pet.), citing Harris Cnty. v. Sykes , 136
S.W.3d 635, 638 (Tex. 2004). An appellate court reviews a trial court’s ruling on a
plea to the jurisdiction de novo. Id.; C.L. Westbrook, Jr. v. Penley , 231 S.W.3d 389,
394 (Tex. 2007).
A. Perez failed to meet the statutory prerequisites for judicial review. It is well-settled law that the state, as a governmental entity, “generally enjoys immunity from suit and liability unless immunity has been clearly waived by
legislative enactment or constitutional provision.” Berry v. Tex. Democratic Party ,
449 S.W.3d 633, 639 (Tex. App.—Austin 2014, no pet.). “Whether sovereign
immunity has been waived implicates subject matter jurisdiction” and, at the same
time, “[s]ubject matter jurisdiction is essential to the authority of a court to decide a
case; it is never presumed and cannot be waived.” Id. See also Tex. Ass’n of Bus. v.
Tex. Air Control Bd. , 852 S.W.2d 440, 444 (Tex. 1993).
Section 2001.171 of the Texas Administrative Procedure Act (“APA”), which provides that an aggrieved party may seek judicial review of a final decision in a
contested case, is a limited waiver sovereign immunity for the purpose of suits for
judicial review. Tex. Gov’t Code § 2001.171; Tex. Dep’t of Protective and
Regulatory Servs. v. Mega Child Care, Inc. , 145 S.W.3d 170, 198 (Tex. 2004).
However, an aggrieved party must still satisfy statutory prerequisites for judicial review in order for a district court to have subject matter jurisdiction. “When
the legislature ‘carves out particular substantive claims for which the State will
consent to suit,’ it may also provide ‘the procedures a litigant must follow to obtain
such a waiver.’” Berry , 449 S.W.3d at 639, quoting Prairie View A&M Univ. v.
Chatha , 381 S.W.3d 500, 513 (Tex. 2012). These “statutory prerequisites to suit”
are jurisdictional requirements in all suits against a governmental entity. Tex. Gov’t
Code § 311.034. See also Berry , 449 S.W.3d at 640. A statutory prerequisite to
judicial review is one that “defines, enlarges, [or] restricts the class of causes the
court may decide or the relief the court may award.” Sierra Club. v. Tex. Natural
Res. Conservation Comm’n , 26 S.W.3d 684, 688 (Tex. App—Austin 2000), aff’d ,
70 S.W.3d 809 (Tex. 2002). Jurisdictional statutory requirements include those
matters that are “traditionally and undoubtedly elements of subject-matter
jurisdiction.” Heart Hosp. IV., L.P. v. King , 116 S.W.3d 831, 834 (Tex. App.—
Austin 2003, pet. denied). As this Court held in Berry , “a statutory prerequisite to
suit has three defining characteristics: (1) it is found in the relevant statutory
language, (2) it is a requirement, and (3) the requirement must be met before the
lawsuit is filed.” 449 S.W.3d at 639. A party’s failure to comply with a
jurisdictional requirement “deprives the trial court of the power to act, other than to
determine that it lacks jurisdiction.” Little , 334 S.W.3d at 862. See also City of
DeSoto v. White , 288 S.W.3d 389, 393 (Tex. 2009).
Part of the statutory prerequisites for review in a substantial evidence appeal is that the aggrieved party must sue the correct agency, that is, the agency that took
the action from which the party seeks relief. In this case, that agency is the PAB,
not the agency Perez actually sued (the TMB). This is demonstrated in the separate
statutory scheme under which the legislature granted the PAB the initial jurisdiction
over physician assistant licensing issues (including disciplinary proceedings). See
Thomas v. Long , 207 S.W.3d 334, 340 (Tex. 2006) (determining exclusive
jurisdiction requires examination and construction of the relevant statutory scheme).
The relevant statutory scheme is contained in the Texas Physician Assistant
Licensing Act (“PALA”), which contains several provisions that make it clear that
the Legislature in fact granted the PAB exclusive jurisdiction to decide the matters
in this lawsuit. Tex. Occ. Code §§ 204.001-.353. See, e.g., Tex. Occ. Code
§ 204.101 (powers and duties of the PAB); § 204.151, et seq. (PAB exclusively
responsible for issuing licenses to physician assistants); § 204.201, et seq. (PAB
exclusively responsible for regulating the practices of licenses physician assistants);
§ 204.251, et seq. (PAB exclusively responsible for complaints and investigations
related to licensed physician assistants); § 204.301, et seq. (PAB exclusively
responsible for the discipline of licensed physician assistants). The PALA also
specifically provides that the PAB is subject to the APA. Tex. Occ. Code § 204.058. [2]
Given that the PAB, not the TMB, has the exclusive jurisdiction to revoke Perez’s license, the question becomes whether he was required to sue the correct
agency with jurisdiction over him in order to satisfy the jurisdictional prerequisites
for judicial review. The answer is yes. Section 2001.174 of the APA provides in
part:
If the law authorizes review of a decision in a contested case under the substantial evidence rule or if the law does not define the scope of judicial review, a court may not substitute its judgment for the judgment of the state agency on the weight of the evidence on questions committed to agency discretion but:
(1) may affirm the agency decision in whole or in part; Tex. Gov’t Code § 2001.174 (emphasis added).
Implicit in § 2001.174 is a requirement that the person must sue the actual “state agency” that issued the order for judicial review is sought. The APA defines
“state agency” as a “. . . board . . . with statewide jurisdiction that makes rules or
determines contested cases.” Tex. Gov’t Code § 2001.003(7). There is no question
that the PAB, not the TMB, is the agency which determines contested case involving
*21 physician assistants. Thus, the requirement to sue the PAB as the agency with
statewide jurisdiction (1) “is found in the relevant statutory language,” (2) is indeed
“a requirement,” and (3) the requirement must be met before the lawsuit is filed.”
Berry , 449 S.W.3d at 639. In addition, the requirement in fact “defines, enlarges,
[or] restricts the class of causes the court may decide or the relief the court may
award.” Sierra Club , 26 S.W.3d at 688. Section 2001.174’s requirement to sue the
correct agency does in fact define and restrict the class of causes a district court may
decide, since a district court simply has no power to adjudicate suits for judicial
review when the aggrieved party does not sue the agency with statewide jurisdiction
within thirty days of the date the order becomes final. The facts of this case are no
different than if Perez had sued the Veterinary Board or the Dental Board.
Perez’s reliance on Sierra Club for the proposition that suing the correct agency is not a jurisdictional prerequisite is misplaced. Perez. Br. at 38. In that case,
the Sierra Club and other parties sued the (then-named) Texas Natural Resource
Conservation Commission (“TNRCC”) in a suit for judicial review of a final
TNRCC order. 26 S.W. 3d at 684. The issue in the case was not whether an agency
with jurisdiction had been sued (the plaintiffs in fact did sue the TNRCC), but instead
whether the APA’s requirements that an administrative record must be filed with the
clerk of the court and a citation be served on other parties were in fact jurisdictional.
26 S.W.3d at 688. The court reasoned that the latter requirements did not define,
enlarge or restrict the class of causes the court may decide or the relief it may award.
Id. In this case, by contrast, Perez didn’t even sue the correct agency in the first
place. The requirement to invoke the district court’s jurisdiction over the agency
with statewide jurisdiction is a far cry from the post-filing procedural requirements
in Sierra Club .
This case is analogous to Gilmer Indep. Sch. Dist. v. Dorfman , 156 S.W.3d 586 (Tex. App.—Tyler 2003, no pet.). There, the court held that the failure to join
the Commissioner of Education was a jurisdictional defect. 156 S.W.3d at 588. The
Commissioner was the person with authority to enforce a statute which was alleged
to be unconstitutional, and was therefore an indispensable party. Id. The plaintiff’s
failure to join him as a party defendant therefore deprived the court of subject matter
jurisdiction. Id. As such, the issue was not one of a defect in parties. Similarly, in
this case, Mr. Perez failed to name the PAB as the exclusive agency with jurisdiction
to enforce the Act, including the exclusive jurisdiction to issue and revoke the
licenses of physician assistants.
Because Mr. Perez failed to satisfy a statutory prerequisite for judicial review, the district court’s grant of the plea to the jurisdiction should be affirmed.
II. THE DISTRICT COURT LACKED JURISDICTION OVER PEREZ’S
CONSTITUTIONAL CLAIMS.
Perez joined a number of federal and state constitutional claims with his suit for judicial review which, as shown above, failed to satisfy a jurisdictional
prerequisite for filing. CR 12, ¶ 34. Both this Court and the Texas Supreme Court
have held that constitutional claims are part of the statutory prerequisites for judicial
review. In Tex. Comm’n on Envtl. Quality v. Kelsoe , 286 S.W.3d 91 (Tex. App.—
Austin 2009, no pet.), Kelsoe, an applicant who had been denied a landfill permit,
filed a suit for judicial review beyond the thirty-day period provided for in rules
adopted by the Texas Commission on Environmental Quality. 286 S.W.3d at 97.
The court determined that the suit was untimely and did not invoke the trial court’s
jurisdiction. Id. Kelsoe nevertheless argued that his suit was timely because he
asserted constitutional claims. Id. This court rejected that argument:
The supreme court has said, “It is well recognized under Texas law that there is no right to judicial review of an administrative order unless a statute provides a right or unless the order adversely affects a vested property right or otherwise violates a constitutional right.” Id. This does not mean, however, that when a statute does provide a right to judicial review, a person raising a constitutional claim need not comply with the statute’s requirements . See, e.g., Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex. , 136 S.W.3d 643, 658–59 (Tex. 2004) (“[d]ue process ... requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner,” but even constitutional claims must be brought within time and procedures set out in statutes allowing for judicial review) . . .
286 S.W.3d at 97 (emphasis added). See also City of Dallas v. Stewart , 361 S.W.3d
562, 580 (Tex. 2012) (citing Kelsoe’s holding that a party making a constitutional
claim must nonetheless comply with statutory prerequisites for judicial review).
Because Perez’s constitutional claims are part of the statutory prerequisites for judicial review, the district court lacked subject matter jurisdiction over those
claims as well.
III. THE DISTRICT COURT LACKED JURISDICTION OVER PEREZ’S
“INVERSE CONDEMNATION” CLAIM.
Perez also attempted to assert an “inverse condemnation” claim against the TMB. CR 45. It is apparent on the face of his petition that the district court lacked
jurisdiction over that claim.
Under Texas law, an inverse condemnation claim is a taking, damage, or destruction resulting from a physical appropriation or invasion of property, or
unreasonable interference with a landowner’s right to use and enjoy the property.
Westgate, Ltd. v. State , 843 S.W.2d 448, 452 (Tex. 1992). A professional license is
certainly not real property which could be subject to an inverse condemnation claim.
The revocation of a professional license is obviously not a “physical appropriation
or invasion.” Moreover, while a professional license is a property right, “it is one
that has been created by statute and is subject to the state’s power to impose
conditions upon the granting or revocation of the license for the protection of
society.” Scally v. Tex. State Bd. of Med. Examn’rs , 351 S.W.3d 434, 446 (Tex.
App.—Austin 2011, pet. denied).
Furthermore, any claim for monetary damages based on “inverse condemnation” would be barred by sovereign immunity. Berry , 449 S.W.3d at 639.
There is no clear waiver by any legislative enactment or constitutional provision
with respect to such a claim.
Perez has failed to assert a legally-cognizable claim for “inverse condemnation, and the district court therefore lacked jurisdiction over that claim as
well.
IV. THE DISTRICT COURT LACKED JURISDICTION OVER PEREZ’S
CLAIM FOR VIOLATION OF THE FAIR CREDIT REPORTING ACT.
Perez’s claim under the Fair Credit Reporting Act (“FCRA”) also fails. CR 49. The FCRA clearly does not apply to any report by the TMB or the PAB to the
National Practitioner Data Bank (“NPDB”). See CR 49-50. Subchapter III of the
FCRA applies to credit reporting agencies and defines a “consumer report” as:
The term “consumer report” means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for--
(A) credit or insurance to be used primarily for personal, family, or household purposes;
(B) employment purposes; or
(C) any other purpose authorized under section 1681b of this title.
15 U.S.C. § 1681a(d) (emphasis added).
The FCRA clearly has nothing to do with reporting the status of professional licensees to the NPDP. That reporting is intended to protect the public from the
unlicensed practice by professionals such as Mr. Perez. 42 U.S.C. 11101. Moreover,
the requirement to report Perez’s license revocation to the NPDP is mandatory.
45 C.F.R. § 60.9.
In addition, any claim for monetary damages based on an alleged violation of the FCRA would be barred by sovereign immunity. Berry , 449 S.W.3d at 639. As
with the “inverse condemnation” claim, there is no clear waiver by any legislative
enactment or constitutional provision with respect to such a claim.
The district court lacked subject jurisdiction over Mr. Perez’s FCRA claim as well.
V. THE DISTRICT COURT LACKED JURISDICTION OVER PEREZ’S
CLAIMS AGINST APPELLEE MARI ROBINSON.
Perez attempts to assert a claim under the named the Uniform Declaratory Judgment Act (“UDJA”). Tex. Civ. Prac. & Rem. Code §§ 37.001, et seq. CR 13.
It is well established law that the UDJA “is not a general waiver of sovereign immunity. Tex. Parks & Wildlife Dep’t v. Sawyer Trust , 354 S.W.3d 384, 388 (Tex.
2011). The UDJA also “does not enlarge a trial court’s jurisdiction, and a litigant’s
request for declaratory relief does not alter a suit’s underlying nature.” City of El
Paso v. Heinrich , 284 S.W.3d 366, 370 (Tex. 2009). Furthermore, “[p]rivate parties
cannot circumvent the State’s sovereign immunity from suit by characterizing a suit
for money damages . . . as a declaratory judgment claim.” Id. at 371 (quoting Tex.
Natural Res. Conservation Comm’n v. IT-Davy , 74 S.W.3d 849, 856 (Tex. 2002).
In what appears to be an attempt to assert a UDJA claim, Perez sued the TMB’s Executive Director, Mari Robinson, as a party defendant. CR 12, ¶ 32. He did not
sue her in her capacity as the Executive Director of the PAB. Moreover, the only
allegation in his petition pertaining to Ms. Robinson is his claim that “[t]he vested
rights identified herein are well known to (her)” and that “she acted without legal
authority and had a ministerial duty to abstain from transgressing upon the same.”
CR 111. This allegation does not plead a cognizable ultra vires claim against
Ms. Robinson. Aside from the fact that Perez did not sue Ms. Robinson in her
capacity as the Executive Director of the PAB, the allegations claims in his petition
fail to describe what acts on her part were in fact ultra vires. A broad, general claim
that “she acted without legal authority” and had a “ministerial duty” to abstain from
transgressing on vested rights is insufficient.
Even if Perez is deemed to have pled an ultra vires claim against Ms. Robinson, it still fails. It is well-settled law that, in order for a court to have
jurisdiction over an ultra vires claim, “a suit must not complain of a government
officer’s exercise of discretion but rather must allege, and ultimately prove, that the
officer acted without legal authority or failed to perform a purely ministerial act.”
Heinrich , 284 S.W.3d at 372. Even if one could ignore the fact that Perez did not
sue Ms. Robinson in her capacity as Executive Director of the PAB, it remains that
any decision by her, any PAB board member, or any other PAB official to revoke
Perez’s license is clearly discretionary in nature. PAB license revocation
proceedings begin with complaints and initial investigations, and can continue all
the way through contested case proceedings at SOAH. See, e.g., Tex. Occ. Code
§§ 204.058; .251; Tex. Gov’t Code §§ 2001.051-.062. Revocation proceedings by
their very nature involve contested facts and discretionary decisions on the part of
agency staff and board members. There is nothing about Perez’s proceeding that
involved a “purely ministerial act.” Perez has clearly failed to invoke the district
court’s jurisdiction over any UDJA or ultra vires claim.
CONCLUSION AND PRAYER For the foregoing reasons, the TMB respectfully requests that this Court affirm the district court’s final judgment granting TMB’s Plea to the Jurisdiction.
Dated: February 18, 2015
Respectfully submitted,
KEN PAXTON
Attorney General of Texas CHARLES E. ROY
First Assistant Attorney General JAMES E. DAVIS
Deputy Attorney General for Civil Litigation DAVID A. TALBOT, JR.
Division Chief, Administrative Law Division *29 /s/ Ted A. Ross
Ted A. Ross
Assistant Attorney General State Bar No. 24008890
O FFICE OF THE T EXAS A TTORNEY G ENERAL A DMINISTRATIVE L AW D IVISION P. O. Box 12548
Austin, Texas 78711-2548 Telephone: (512) 475-4191 Facsimile: (512) 457-4674 Email: ted.ross@texasattorneygeneral.gov Attorneys for Appellees Texas Medical Board and Mari Robinson
CERTIFICATE OF COMPLIANCE I hereby certify compliance with Texas Rules of Appellate Procedure 9 and that there are 4,062 words in this document. Microsoft Word was used to prepare
this filing and calculate the number of words in it.
/s/ Ted A. Ross
Ted A. Ross
Assistant Attorney General CERTIFICATE OF SERVICE I hereby certify that, in compliance with Rule 9.5 of the Texas Rules of Appellate Procedure, a true and correct copy of the above and foregoing document
has been served on the following on this the 18th day of February 2015:
Louis Leichter
Jose A. Perez, pro se Via: Electronic Mail and
34 Candle Pine Place CMRRR #7006 2150 0005 6812 6335
The Woodlands, Texas 77381
Email: theaesculapius@gmail.com
/s/ Ted A. Ross Ted A. Ross Assistant Attorney General
[1] Mr. Perez is no stranger to frivolous litigation. Instead of acknowledging the jurisdiction of the PAB and defending himself in the disciplinary proceeding which lead to the revocation of his license, Mr. Perez and his wife Nancy C. Perez (Mrs. Perez) sued the TMB and its Executive Director in a series of state and federal court proceedings spanning a period of over two and a half years. They first sued in Travis County District Court, where they claimed that the entire regulatory scheme governing physicians and physician assistants—which had been in place for decades—is unconstitutional. The district court (Judge Jenkins presiding) granted summary judgment in favor of the TMB, the PAB, and Ms. Robinson on all of the Perezes’ claims. The Perezes then filed an appeal of the district court’s ruling in the Third Court of Appeals. Their appeal was dismissed because they failed to file a brief. Perez v. Texas Medical Bd. , Nos. 03-12- 00610-CV and 03-12-00715-CV, 2013 WL 1876458 (Tex. App.—Austin May 13, 2013, no pet.)
[2] Under the PALA, the TMB is required to adopt rules to regulate physician assistants and physicians who regulate them. Tex. Occ. Code § 204.102(a). However, that provision does not implicate or restrict the PAB’s jurisdiction over PAs.