          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                          NO. 03-01-00540-CV



                                 Thomas M. Parker, M.D., Appellant

                                                      v.

            Texas Medical Association and Texas Medical Liability Trust, Appellees




         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
                NO. 99-13225, HONORABLE PAUL DAVIS, JUDGE PRESIDING



                Thomas M. Parker, M.D., appeals from the trial court=s dismissal of his case based on his

failure to state a cause of action. We will affirm the trial court=s judgment.


                                  Factual and Procedural Background

                In November 1999, Parker, acting pro se, filed his original petition naming the Texas

Medical Association (TMA) and the Texas Medical Liability Trust (the Trust) as defendants. Parker

complained that the TMA raised its dues by $35 per year, and asserted that the increase was to be

transferred to the Trust in violation of the Texas Medical Practice Act.1 Parker also asserted that the

defendants violated his civil rights. Before TMA entered an appearance, the Trust filed special exceptions

to the original petition for failure to state a cause of action. On January 31, 2000, the trial court held a


   1
      The dues increase was effective January 1, 1998. Parker was a member of the TMA house of
delegates. He introduced a resolution in November 1997 calling for the rescission of the increase. The
resolution was defeated.
hearing on the special exceptions. Parker=s theory at times seemed to be that TMA and the Trust conspired

to require malpractice insurance, then require TMA membership in order to be able to purchase malpractice

insurance, with money from the increased sale of insurance going to TMA for debt retirement. At the

hearing on the special exceptions, Parker admitted that it was not mandatory for doctors to be TMA

members and that malpractice insurance could be secured on the open market. He said that he considered

the civil rights violation to be that he is Aforced to associate with people that I [sic] really rather not.@ On

January 31, 2000, the court granted the special exceptions and ordered Parker to amend within thirty days

or the claims against the Trust would be dismissed with prejudice. Parker failed to amend and on March

14, 2000, the court struck his pleadings and rendered judgment dismissing his claims against the Trust.

                 After answering,2 TMA filed special exceptions based on the same grounds. On June 26,

2000, the court granted those special exceptions, giving Parker sixty days to amend. Parker filed an

amended petition which did not cure the defects. Although Parker continued to concede that TMA

membership was voluntary, he elaborated that his constitutional claims were based on membership being

Ade facto@ mandatory because involvement in TMA was good for business. On August 15, 2000, the trial

court granted TMA=s special exceptions and dismissed Parker=s suit for failure to state a cause of action.




   2
      On May 8, 2000, Parker moved for a default judgment against TMA, who had not answered. TMA
then answered and asserted that the service of Parker=s original petition had been defective. The trial court
denied the motion for default judgment on June 1, 2000.




                                                       2
                In his first two issues on appeal, Parker challenges the grant of the special exceptions and

motions to strike. In his third issue, he contends that the dismissal of the Trust before TMA=s appearance

obstructed justice Abecause the two could not have acted without one another@ and the dismissal of TMA

Asimply let off the primary actor.@ Further A[i]t sustains an extortion racket the Plaintiff and the State of

Texas cannot afford.@


                                                Discussion

                A special exception is a proper method to determine whether a plaintiff has pleaded a cause

of action. Butler Weldments Corp. v. Liberty Mut. Ins. Co., 3 S.W.3d 654, 658 (Tex. App.CAustin

1999, no pet.). When special exceptions are sustained, the pleader may either amend the petition or refuse

to amend and challenge the ruling on appeal. Id. at 658; Hubler v. City of Corpus Christi, 564 S.W.2d

816, 820 (Tex. App.CCorpus Christi 1978, writ ref=d n.r.e.). If the defect is not cured after amendment,

the trial court may dismiss the cause. Stinnett v. Williamson County Sheriff=s Dep=t, 858 S.W.2d 573,

575 (Tex. App.CAustin 1993, writ denied); Eichelberger v. Balette, 841 S.W.2d 508, 510 (Tex.

App.CHouston [14th Dist.] 1992, writ denied). When a trial court dismisses a case upon special exception

for failure to state a cause of action, we review that issue of law using a de novo standard of review. Butler

Weldments, 3 S.W.3d at 658. We accept as true the allegations of the plaintiff=s petition. Sorokolit v.

Rhodes, 889 S.W.2d 239, 240 (Tex. 1994); Butler Weldments, 3 S.W.3d at 658.

                Parker alleged that TMA and the Trust violated his civil rights. See 42 U.S.C.A. ' 1983

(West 1994). Even if his associational rights under the First Amendment could be violated by his

membership in a voluntary association, his claim nevertheless lacks the essential element of state action. See

                                                      3
Li v. University of Texas Health Sci. Ctr., 984 S.W.2d 647, 652 (Tex. App.CHouston [14th Dist.]

1998, pet. denied) (holding that Aprivate professional association of doctors@ cannot be liable for alleged

civil rights violations because there is no state action); Cole v. Huntsville Mem=l Hosp., 920 S.W.2d 364,

368 (Tex. App.CHouston [1st Dist.] 1996, writ denied) (defendant must act Aunder color of state law@).

Without state action, Parker=s civil rights claim fails as a cause of action.

                 Parker alleged that the dues increase violated the Medical Practice Act=s prohibition on

transfers of value in exchange for patronage.3 Tex. Occ. Code Ann. ' 165.155(a), (e) (West 2002). He

attached to his pleading a TMA financial statement showing a line item for income from Ainsurance royalty.@

There is no detailed explanation about the exact nature of that income, but that income seems to be the

factual basis for Parker=s assertion that there is an improper transfer of value under the Medical Practice

Act. That statute, however, does not create a private cause of action. Cole, 920 S.W.2d at 373

(enforcement of Medical Practice Act is by criminal penalties and administrative regulation). Further, the

section on which Parker relies is a prohibition directed at doctors receiving referral fees, and is not directed


   3
     The statute reads: AA physician commits an offense if the physician employs or agrees to employ, pays
or promises to pay, or rewards or promises to reward any person, firm, association, partnership, or
corporation for securing or soliciting a patient or patronage.@ Tex. Occ. Code Ann. ' 165.155 (a). AAn
offense under this section is a Class A misdemeanor.@ Id. (c) (formerly Tex. Rev. Civ. Stat. Ann. art.
4459b, ' 3.07 (c), enacted, Act of July 28, 1981, 67th Leg., 1st C.S., ch. 1, ' 1, sec. 3.07(c), 1981 Tex.
Gen. Laws 1, 18).




                                                       4
to organizations having business relationships not involving patient referrals. See Op. Tex. Att=y Gen. No.

JM-752 (1987) (section applies to physicians, not hospitals). Parker has not stated a cause of action under

the Medical Practice Act.

                 Parker also makes general allegations that malpractice insurance premiums are a Abribe paid

under duress to practice medicine@ and complains that requiring such insurance is a malicious trespass, an

unlawful garnishment, and a cloud on plaintiff=s privilege to practice medicine. He further alleges that TMA=s

requirement to maintain insurance is defamatory and an invasion of privacy.4 Parker also complains globally

of fraud and fraudulent conduct on the part of TMA and the Trust.

                 However, nowhere does Parker state facts that might bring him within any recognized cause

of action. For example, the elements of defamation are: (1) the defendant published a statement; (2) that

was defamatory concerning the plaintiff; (3) while acting with either actual malice, if the plaintiff was a public

official or public figure, or negligence, if the plaintiff was a private individual, regarding the truth of the

statement. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Dolenz v. Texas State

Bd. of Med. Exam=s, 981 S.W.2d 487, 489 n.4 (Tex. App.CAustin 1998, no pet.). The elements of

common-law fraud are that: (1) a material representation was made; (2) that was false; (3) when the

representation was made, the speaker knew it was false or made the statement recklessly without any

knowledge of truth and as a positive assertion; (4) the representation was made with the intention that it be


   4
      Apparently, because he has never been sued, he construes this Arequirement@ as impugning his
reputation.




                                                        5
acted upon by the other party; (5) that party acted in reliance upon the representation; and (6) that party

suffered injury. Johnson & Higgins, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 524 (Tex. 1998);

Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 867 (Tex. App.CAustin 2001, pet. denied). See

also Tex. Civ. Prac. & Rem. Code Ann. ' 63.001-.005 (West 1997) (elements of garnishment); Humble

Pipe Line Co. v. Anderson, 339 S.W.2d 259, 265 (Tex. Civ. App.CWaco 1960, writ ref=d n.r.e.)

(elements of trespass). Parker asserts none of these allegations. We conclude that Parker failed to state a

cause of action and overrule his first and second issues.

                In his third issue, Parker complains of the dismissal of one defendant before the other

answered. Parker has failed to demonstrate harm from this procedure; ultimately, his causes against both

were dismissed. We overrule his third issue.


                                               Conclusion

                We have reviewed Parker=s pleadings and hold that he has failed to state a cause of action

against either defendant. We have overruled his issues on appeal and affirm the trial court=s judgment.




                                                 __________________________________________

                                                 Marilyn Aboussie, Chief Justice




Before Chief Justice Aboussie, Justices B. A. Smith and Puryear

Affirmed

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Filed: July 26, 2002

Do Not Publish




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