      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00004-CV



                               Kimberly A. Finder, M.D., Appellant

                                                  v.

                                 Texas Medical Board, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
       NO. D-1-GN-08-004200, HONORABLE RHONDA HURLEY, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Kimberly Finder, M.D., appeals a district court judgment affirming a final

order of the Texas Medical Board (the “Board”) finding her in violation of the Board’s rules

prohibiting false, misleading, or deceptive physician advertising and imposing a $5,000 disciplinary

penalty against her. In four issues, Dr. Finder contends that the district court erred in affirming the

Board’s final order. Because we find no error in the Board’s final order and we conclude that the

Board’s order was supported by substantial evidence, we affirm the district court’s judgment

affirming the Board’s order.


                                         BACKGROUND

               Kimberly Finder, M.D., became licensed by the Texas Medical Board in 1985. In

1990, she became board certified in dermatology and has been practicing as a dermatologist in
San Antonio since 1992. She currently serves as the medical director for The LipoSurgery Clinic,

a clinic specializing in tumescent liposuction and selective cosmetic facial procedures for women.1

               Tumescent liposuction, also referred to as the “tumescent technique,” involves

injecting large volumes of tumescent solution into the targeted fat before it is sucked out. Tumescent

solution contains dilute amounts of lidocaine, a local anesthetic, and epinephrine, used to restrict

bleeding. Though it is generally agreed that tumescent solution must be used in order to categorize

a procedure as tumescent liposuction, the record reflects two distinct opinions regarding the type of

anesthesia permitted during a tumescent liposuction procedure. Dr. Finder claims that tumescent

liposuction is defined as liposuction using only the local anesthesia in the tumescent solution,

without any additional intravenous (IV) sedation or general anesthesia. By contrast, Dr. Mario

Diana, a San Antonio plastic surgeon who practices liposuction, testified at the administrative

hearing that he defines tumescent liposuction as that done using tumescent solution, whether or not

additional IV sedation or general anesthesia is used. Dr. Finder claims that these competing

definitions are part of a long-standing “turf war” between dermatologists, who subscribe to

Dr. Finder’s definition, and plastic surgeons, who agree with Dr. Diana.

               Sometime around 2001, Dr. Finder began advertising her practice on the internet at

www.theliposurgeryclinic.com. The website, as viewed by the Board in 2004 (the “website”),

contained a chart entitled “Technique Comparison” which included, among other things, the

following information:


       1
           We note that the complaint giving rise to this appeal was not from a patient, nor was it
related to the appropriate standard of patient care. Dr. Finder testified that in her over twenty years
practicing dermatology, she has not received a single patient complaint or malpractice claim.

                                                  2
 Consideration                    Tumescent Technique               IV Sedation & General
                                                                    Anesthesia
 Physicians                       Dermatologic Surgeon              Plastic Surgeon
 Anesthesia                       Local anesthesia                  General anesthesia
 Procedure                        Gentle                            Rough and hurried
 Recovery Time Post               Resume activities after           More discomfort. Bed rest
 Surgery                          surgery. 45 min. walk is          for 3-7 days. Hospitalization
                                  recommended day of surgery.       may be required.
                                  Minimal blood loss, reduced
                                  bruising and swelling.
 Scarring                         Minimal. Smaller incisions        Increased, Larger incisions
                                  drain then close naturally.       often sutured.
 Perforation of internal          None. Patient is awake.           Possible. Patient
 body organs                      Virtually impossible with         unconscious. Punctures can
                                  gentle suctioning action.         occur with unconscious
                                                                    patient due to vigorous
                                                                    suctioning.


               In 2004, the Board filed a preliminary complaint against Dr. Finder, alleging that the

website violated section 164.052 of the Texas Occupations Code.2 See Tex. Occ. Code Ann.

§ 164.052 (West Supp. 2008). Section 164.052 states, in relevant part:


       A physician or an applicant for a license to practice medicine commits a prohibited
       practice if that person:

       ....

       (6) uses an advertising statement that is false, misleading, or deceptive;




       2
         Though Dr. Finder has since updated her website in response to the Board’s complaint, the
Board’s sanctions against her are based on the version of the website viewed by the Board in 2004.

                                                  3
        (7) advertises professional superiority or the performance of professional service in
        a superior manner if that advertising is not readily subject to verification;


Id. § 164.052(6)-(7).

                After an unsuccessful informal settlement conference, the Board filed a formal

complaint at the State Office of Administrative Hearings.            A hearing was held before an

administrative law judge (the “ALJ”) to determine whether statements on Dr. Finder’s website

violated the Board’s rules regarding physician advertising. During the hearing, the Board offered

the expert testimony of Dr. Diana, Dr. Byron Limmer, a San Antonio dermatologic surgeon, and

Karen Porter, an advertising expert. Dr. Finder offered her own testimony, as well as that of experts

Dr. Gerald Bernstein, a Seattle dermatologic surgeon, and Dr. Rhoda Narins, a dermatologic surgeon.

At the conclusion of the hearing, the ALJ issued a Proposal for Decision (“PFD”), identifying and

describing six statements from the website that she found to be material misrepresentations of

material facts and thus violated the Board’s rules. See 22 Tex. Admin. Code § 164.3(1) (2010) (Tex.

Med. Bd., Misleading or Deceptive Advertising) (including material misrepresentations of material

facts within definition of false, misleading, or deceptive advertising).

                The ALJ found that Dr. Finder’s website contained the following material

misrepresentations: (1) plastic surgeons use general anesthesia when performing liposuction, while

she uses local anesthesia; (2) her services virtually eliminate risk, while plastic surgeons use general

anesthesia, which shuts down the brain and requires a machine to keep the lungs functioning;

(3) dermatologists perform liposuction in a gentle manner while plastic surgeons perform the surgery

in a rough and hurried manner; (4) scarring is increased and larger incisions are often sutured when



                                                   4
liposuction is performed under IV sedation or general anesthesia; (5) under general anesthesia,

internal organs can be perforated due to vigorous suctioning; and (6) bed rest is required for three-to-

seven days after surgery under general anesthesia, the patient will experience more discomfort after

liposuction under general anesthesia, and bruising and swelling are reduced when surgery is

performed under local anesthesia. The ALJ also concluded that Dr. Finder had advertised

professional superiority or the performance of professional service in a superior manner and that this

advertising was not subject to verification. See Tex. Occ. Code Ann. § 164.052(7).

                In its final order, the Board adopted all but one of the ALJ’s findings of fact and

conclusions of law and imposed upon Dr. Finder an administrative penalty of $5,000.3 After

exhausting the administrative remedies before the Board, Dr. Finder sought judicial review of

the Board’s final order in the district court, which affirmed the Board’s order in full. This

appeal followed.


                                    STANDARD OF REVIEW

                Our review of the Board’s final order is governed by the “substantial evidence”

standard of the Texas Administrative Procedure Act. See Tex. Gov’t Code Ann. § 2001.174 (West

2008). Under this standard, we presume that the Board’s order is supported by substantial evidence,

and Dr. Finder bears the burden of proving otherwise. Texas Health Facilities Comm’n v. Charter




       3
         The Board did not adopt conclusion of law number twelve, a sanction recommendation,
because it was not a proper conclusion of law. It did, however, impose the ALJ’s recommended
penalty.

                                                   5
Medical-Dallas, Inc., 665 S.W.2d 446, 453 (Tex. 1984). The complaining party cannot satisfy this

burden merely by showing that evidence preponderates against the agency’s decision. Id. at 452.

               We may reverse an agency’s decision that prejudices Dr. Finder’s substantial rights

because the Board’s findings, inferences, conclusions, or decisions (1) violate a constitutional or

statutory provision; (2) exceed the Board’s statutory authority; (3) were made through unlawful

procedure; (4) were affected by other error of law; (5) are not reasonably supported by substantial

evidence considering the reliable and probative evidence in the record as a whole; or (6) are arbitrary

or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Tex. Gov’t Code Ann. § 2001.174(2).

               To constitute substantial evidence, the reliable and probative evidence in its entirety

must be sufficient such that reasonable minds could have reached the conclusion that the agency

must have reached to justify the disputed action. Heat Energy Advanced Tech., Inc. v. West Dallas

Coal., 962 S.W.2d 288, 294-95 (Tex. App.—Austin 1998, pet. denied) (citing Texas State Bd. of

Dental Exam’rs v. Sizemore, 759 S.W.3d 114, 116 (Tex. 1988)). We review the Board’s legal

conclusions for errors of law and its findings of fact for support by substantial evidence. Id. We

may not substitute our judgment for that of the Board on the weight of the evidence on questions

committed to agency discretion. Charter Medical, 665 S.W.2d at 452; see also Tex. Gov’t Code

Ann. § 2001.174.

               The test is not whether we believe the Board’s decision was correct, but whether the

agency’s factual findings are reasonable “in light of the evidence from which they were purportedly

inferred.” Granek v. Texas State Bd. of Med. Exam’rs, 172 S.W.3d 761, 778 (Tex. App.—Austin



                                                  6
2005, no pet.) (quoting John E. Powers, Agency Adjudications 163 (1990)). The factfinder, here the

ALJ, determines the credibility of witnesses and the weight to give their testimony. Id. We may not

set aside an agency decision merely because testimony was conflicting or disputed, or because it

did not compel the agency’s decision. Sanchez v. Texas State Bd. of Med. Exam’rs, 229 S.W.3d 498,

510 (Tex. App.—Austin 2007, no pet.) (citing Firemen’s & Policemen’s Civil Serv. Comm’n

v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1996)).


                                            DISCUSSION

                In four issues on appeal, Dr. Finder argues that the district court erred in affirming

the Board’s final order because: (1) the Board’s order is not supported by substantial evidence;

(2) the ALJ abused her discretion in admitting and relying on the testimony of the Board’s experts;

(3) the Board applied an incorrect and unpublished standard to conclude that Dr. Finder disobeyed

its rules on physician advertising, violating Dr. Finder’s right to due process; and (4) the Board failed

to address Dr. Finder’s affirmative defense of commercial speech.


Substantial Evidence

                In her first issue on appeal, Dr. Finder contends that the Board’s findings are not

supported by substantial evidence. Though Dr. Finder frames her first issue in substantial evidence

terms, it actually contains two distinct and separate challenges to the Board’s order. First, she

contends that the findings of underlying fact stated in the order do not fairly support the agency’s

ultimate conclusions. Second, she claims that the findings of underlying fact do not have reasonable

support in the evidence adduced at the evidentiary hearing. Both of these challenges are permitted



                                                   7
within our review of the Board’s decision. See Charter Medical, 665 S.W.2d at 452; United

Res. Recovery, Inc. v. Texas Water Comm’n, 815 S.W.2d 797, 801 (Tex. App.—Austin 1991,

writ denied).

                The Board is authorized to impose an administrative penalty of not more than $5,000

per violation against a licensee who has violated a Board rule. See Tex. Occ. Code Ann.

§ 165.003(a) (West 2004). Because the Board imposed a $5,000 penalty upon Dr. Finder, any single

violation is sufficient to support the Board’s order. For this reason, to affirm the district court’s

judgment, we need only determine that substantial evidence supports the conclusion that at least one

of Dr. Finder’s statements violated the Board’s rules. We will begin by evaluating whether

substantial evidence exists to support the conclusion that the “procedure” section of the “Technique

Comparison” chart is false, misleading, or deceptive advertising.


Procedural Challenge to Findings of Fact

                Dr. Finder first claims that the Board’s order did not contain sufficient underlying

findings to support its ultimate conclusions. The Board’s finding of fact number five recreates a

portion of the “Technique Comparison” chart, including the “procedure” section. Under the

“Tumescent Technique” column, the procedure is described as “Gentle,” whereas under the “IV

Sedation and General Anesthesia” column, it is described as “Rough and hurried.” Finding of fact

number eight states, “Whether a physician is gentle or rough and hurried is not specific to the

anesthesia used or the physician’s certification.” The ultimate conclusions reached by the Board

include: “(7) Respondent used an advertising statement that was false, misleading, or deceptive as

described in [Tex. Occ.] Code § 164.052(6) and 22 [Tex. Admin. Code] § 164.3(1); and

                                                 8
(8) Respondent has made material misrepresentations of material facts, which cannot be

substantiated, as described in 22 [Tex. Admin. Code] § 164.3(7).”

               Because the Texas Occupations Code does not define false, misleading, or deceptive

advertising, we turn to the Board’s rules for guidance. They define advertising as information

communicated to the public in any manner designed to attract public attention to a physician’s

practice. 22 Tex. Admin. Code § 164.2 (2010) (Tex. Med. Bd., Definitions). This includes

information on the internet. Id.

               The Board’s rules further state that physician advertising is false, misleading, or

deceptive, if it contains, among other things, “material false claims or misrepresentations of material

facts which cannot be substantiated.” 22 Tex. Admin. Code § 164.3(1) (2010) (Tex. Med. Bd.,

Misleading or Deceptive Advertising).

               Dr. Finder argues that the Board’s findings did not fairly and reasonably support the

Board’s conclusions because the Board’s order does not specifically identify which statements on

the website are “false, misleading, or deceptive” and “material misrepresentations of material facts”

or why they are such.

               Proper underlying findings of fact should be clear, specific, non-conclusory, and

supportive of the ultimate statutory finding. Charter Medical, 665 S.W.2d at 452. Mere recitals of

testimony or references to or summations of the evidence are improper. Id. Such findings should

be stated as the agency’s findings. Id. Dr. Finder argues that finding of fact number five is a mere

recitation of the evidence. This finding contains, among other things, the “procedure” section of the

“Technique Comparison” chart where, under the “tumescent technique,” the procedure is described



                                                  9
as “Gentle,” and under the “IV Sedation and General Anesthesia” column, it is “Rough and hurried.”

Rather than being a mere recitation of the evidence, this language constitutes the necessary finding

around which the Board’s entire disciplinary proceeding revolves. Furthermore, in the absence of

a finding of fact identifying which of Dr. Finder’s statements the Board considered, Dr. Finder would

not have been adequately informed of the basis for the Board’s decision. For this reason, the Board’s

identification of the statements relied upon in reaching its ultimate conclusion qualifies as a proper

finding of fact.

                   Similarly, Dr. Finder argues that finding of fact number eight is also a recitation of

the evidence. Finding of fact eight states that “whether a physician is gentle or rough and hurried

is not specific to the anesthesia used or the physician’s certification.” The Board did not, however,

simply restate testimony. Instead, it synthesized the relevant testimony of Dr. Finder, Dr. Diana,

Dr. Limmer, Dr. Bernstein, and Dr. Narins and stated its resultant finding.

                   Because the Board found that (1) Dr. Finder’s website characterized the procedures

under the tumescent technique as gentle and under IV sedation and general anesthesia as rough and

hurried, and (2) whether liposuction was gentle or rough and hurried was not specific to the

anesthesia used or physician’s certification, the Board’s conclusion that the “procedure” section on

Dr. Finder’s website constituted a material misrepresentation of a material fact was reasonably

supported by the underlying findings of fact.

                   Dr. Finder also argues that she should not be “left to guess ‘how’ and ‘why’ with

respect to each of the ultimate conclusions,” citing Texas Health Facilities Comm’n v. Presbyterian

Hospital North, 690 S.W.2d 564 (Tex. 1985). In Presbyterian Hospital, the commission in question



                                                    10
made six underlying findings regarding a proposed facility, identifying the number of beds and

square feet of the new facility, the cities and counties that would be served, and the forecasted

occupancy rates of the facility. Id. at 566. The supreme court held that these findings did not

support the ultimate conclusion that the proposed facility was not necessary to meet the health care

needs of the medical service area. Id. at 567. The findings of fact in Dr. Finder’s case do not require

the inferential leap necessary in Presbyterian Hospital. Here, the Board’s findings included a

specific statement from Dr. Finder’s website and a finding of fact which contradicted that statement.

No additional information is necessary to reach the Board’s conclusion that the website contained

material misrepresentations of material fact.

               The fact that the Board did not explicitly list the violating statements in its order does

not cause it to fail the substantial evidence review.4 An agency is not required to indicate which

underlying facts support each ultimate finding, as long as the reviewing court can fairly and

reasonably say that the underlying or basic facts support the agency’s conclusion on the ultimate or

statutory criteria. See Smith Motor Sales, Inc. v. Texas Motor Vehicle Comm’n, 809 S.W.2d 268,

271-72 (Tex. App.—Austin 1991, writ denied). The findings should be sufficient to “inform the

parties and the courts of the basis for the agency’s decision so that the parties may intelligently

prepare an appeal and so that the courts may properly exercise their function of review.” Goeke v.

Houston Lighting & Power Co., 797 S.W.2d 12, 15 (Tex. 1990). The Board’s findings here do this,

as evidenced by the fact that both parties’ briefs identified specific statements implicated by the


       4
          While the ALJ’s PFD contained a detailed analysis of which statements were material
misrepresentations, the Board adopted only the ALJ’s findings of fact and conclusions of law, which
do not directly list particular statements as false, misleading, or deceptive.

                                                  11
Board’s findings of fact. Furthermore, there is no precise form in which an agency must articulate

its underlying findings and the reviewing court may not subject the agency’s order to a

“hypertechnical standard of review.” Id.; see also State Banking Bd. v. Allied Bank Marble Falls,

748 S.W.2d 447, 448-49 (Tex. 1988).

               For these reasons, we reject Dr. Finder’s contention that the Board’s ultimate

conclusion is not supported by its underlying findings of fact.


Substantial Evidence

               Dr. Finder further argues that the Board’s order does not meet the substantial evidence

standard because the record does not support the Board’s underlying findings of fact. In our analysis,

we again look first to the “procedure” section of Dr. Finder’s “Technique Comparison” chart.

               Dr. Finder does not allege that finding of fact number five is unsupported by the

record, as it is taken directly from the Board’s exhibit number four. She does, however, contest the

sufficiency of finding of fact number eight, “whether a physician is gentle or rough and hurried is

not specific to the anesthesia used or the physician’s certification,” because she “dispute[s] that the

statement[] attributed to her appear[s] on her website.” However, this finding of fact is supported

by the testimony of Dr. Diana, who testified that the language contained on Dr. Finder’s website

suggested that the roughness of a procedure depended on the type of doctor and anesthesia used.

               Dr. Finder further argues that finding of fact number eight disregards both

Dr. Finder’s testimony that the type of anesthesia correlates with the speed of a liposuction procedure

(and thus, the roughness and hurriedness of the procedure) and Dr. Bernstein’s testimony that a

surgeon must be gentle when using only local anesthesia because the patient is fully awake and

                                                  12
aware. However, additional testimony contradicted these statements. Dr. Limmer testified that

whether a physician is rough and hurried is not specific to the liposuction technique used, and

Dr. Diana testified that the way in which a procedure is performed depends on the physician doing

it. Dr. Finder’s own expert, Dr. Bernstein, said it was “very, very hard” to characterize exactly what

the words gentle and rough and hurried mean. He noted that a physician could be gentle while

performing liposuction under general anesthesia. Dr. Narins, a dermatologist, testified that the way

a surgeon performs a surgery depends on the procedure one is taught. She did testify, however, that

surgery without general anesthesia is less aggressive.

               Though Dr. Finder claims that the ALJ ignored certain testimony, additional

contradicting testimony required her to make a factual determination regarding which testimony to

believe. This Court may not make a determination as to the credibility of witnesses or weight to be

given to conflicting testimony. Such questions are solely the purview of the ALJ as trier of fact. See

Sanchez, 229 S.W.3d at 510; Granek, 172 S.W.3d at 778. Here, the ALJ resolved the existing

conflict in favor of the Board. Given this conflicting testimony and the fact that the ALJ determines

the credibility of witnesses and the weight to give their testimony, we hold that finding of fact

number eight is reasonably supported by the record.

               As both the Board’s conclusion that the “procedure” section of Dr. Finder’s website

was false, misleading, or deceptive and its underlying findings of fact are supported by substantial

evidence, we overrule Dr. Finder’s first point on appeal.




                                                 13
Expert Testimony

               In her second issue on appeal, Dr. Finder argues that the ALJ abused her discretion

in admitting and relying on the testimony of the Board’s experts. She first contends that the ALJ

should have excluded Porter’s testimony because she was not qualified to testify about whether the

medical statements on Dr. Finder’s website were misleading because she has no medical experience.

However, even assuming without deciding that Porter’s testimony was improper, the Board’s

conclusions would still be sufficiently supported by the remaining evidence. Dr. Finder alleges that

Porter was “the only expert who purported to offer an opinion about what consumers would think

about the website.” While this is true, testimony regarding consumer thoughts or behavior was not

necessary to support the conclusion that the “gentle” versus “rough and hurried” language was false,

misleading, or deceptive. The Board needed only to show that the statement was a material

misrepresentation of a material fact that could not be substantiated. See 22 Tex. Admin. Code

§ 164.3(1). As discussed above, substantial evidence from the testimony of the various medical

experts supports this conclusion without consideration of Porter’s testimony.

               Dr. Finder also claims that a conflict of interest made it improper for the ALJ to allow

Dr. Diana’s and Dr. Limmer’s testimony because they were competitors of Dr. Finder in

San Antonio. Dr. Finder cites Board rule 182.8, which states that a potential conflict of interest

exists, and thus the expert is disallowed from testifying, if the expert is in the same geographical

medical market as the subject of the complaint and is in direct competition with the physician or

knows the physician. See 22 Tex. Admin. Code § 182.8(a)(2)(A) (2010) (Tex. Med. Bd., Expert

Physician Reviewers). Dr. Finder concedes that this statute applies only to experts for standard-of-



                                                 14
care disciplinary actions rather than advertising ones, but argues that “a conflict is a conflict,” and

that no rational basis exists for a different standard in Dr. Finder’s case.

                The Board is authorized to adopt rules to govern its own proceedings and could one

day extend this conflict-of-interest rule to advertising cases, but it has not yet done so. See Tex. Occ.

Code § 153.001(1) (West 2004). Currently, no statute or rule exists preventing testimony by

competing physicians in non-standard-of-care disciplinary actions. Instead, the potential biases of

the Board’s witnesses fall within the ALJ’s judgments regarding the credibility of the experts and

the weight to be afforded their testimony. Our standard of review precludes us from second-guessing

such determinations. See Granek, 172 S.W.3d at 778.

                For these reasons, we overrule Dr. Finder’s second point on appeal.


Use of an “Unpublished” Standard

                In her third issue on appeal, Dr. Finder argues that the Board applied a “surprise”

unpublished standard in evaluating Dr. Finder’s advertising, which violated her right to procedural

due process. She claims that rather than the published “false, misleading, or deceptive” standard,

Dr. Limmer used an “unfair comparison” standard, while Dr. Diana used a standard that deemed all

comparisons misleading unless they are always true. She claims that the Board’s acceptance of

testimony by these experts equates to the Board holding Dr. Finder to these standards rather than the

“false, misleading, or deceptive” standard purported in the Board’s order.

                While Dr. Finder frames this issue as a procedural due process question in her brief,

it is better characterized as a challenge to the substantial evidentiary support for the Board’s order.

See, e.g., West End Pink, Ltd. v. City of Irving, No. 05-00-00690-CV, 2001 Tex. App. LEXIS 7261,

                                                   15
at *8 (Tex. App.—Dallas Oct. 30, 2001, no pet.) (not designated for publication) (interpreting due

process argument as complaint that agency’s order was not supported by substantial evidence); City

of Dallas v. Furrh, 541 S.W.2d 271, 273 (Tex. Civ. App.—Dallas 1976, writ ref’d n.r.e.) (claim that

city council violated claimant’s constitutional right because its decision to deny license was arbitrary

and discriminatory reviewed under substantial-evidence rule).

               Dr. Finder claims that, because the Board’s experts applied a lesser standard to reach

their conclusions regarding whether the statements were false, misleading, or deceptive, their

conclusions do not support the same conclusions by the Board. Assuming without deciding that

Dr. Limmer and Dr. Diana did define the term “misleading statement” differently than the published

standard, it does not follow that the Board necessarily applied those same standards. Nothing in the

Board’s order indicates that it applied a standard other than the “false, misleading, or deceptive”

standard as defined by the Board’s rules. Furthermore, the fact that Dr. Limmer and Dr. Diana may

have used differing definitions of “false, misleading, or deceptive” in their ultimate conclusions does

not affect the ability of the Board to rely on the remainder of their testimony. The Board may still

rely on Dr. Diana’s and Dr. Limmer’s statements concluding that the language on Dr. Finder’s

website compared types of anesthesia and physician specialty and their testimony regarding the

relationship between anesthesia used, physician’s certification, and roughness of the procedure. This

evidence supports the Board’s conclusion that the “procedure” statements were false, misleading,

or deceptive without reliance upon Dr. Diana’s and Dr. Limmer’s ultimate conclusions that the

statements were misleading.




                                                  16
               Because the Board’s order does not contain any language suggesting that it applied

an incorrect standard, we overrule Dr. Finder’s third point on appeal.



Commercial Speech Claim

               Finally, Dr. Finder contends that the Board committed reversible error by applying

the wrong legal standard to analyze her commercial speech claim. Though we had some difficulty

discerning the exact basis of Dr. Finder’s commercial speech claim on appeal, we perceive her

argument to be that the Board’s restrictions on her commercial speech are an unconstitutional effort

to protect plastic surgeons. She argues, as she did in her third point on appeal, that the Board did

not apply a “false, misleading, or deceptive” standard, but instead applied an “unfair comparison”

and/or “potentially misleading” standard. This improper standard, she claims, acts as a pretext

allowing the Board to “protect other medical doctors,” which is not a legitimate reason to limit her

commercial speech. She further claims that the Board applied an improper “readily subject to

verification” standard on all of the statements on Dr. Finder’s website, specifically arguing that the

Board found several statements to be in violation of its rules “based solely on the fact that certain

statements cannot be factually verified.”

               The Board responded to Dr. Finder’s commercial speech claim by stating that it may

prevent the dissemination of commercial speech that is false, deceptive, or misleading, and that it

has done so here.

               We have already determined that substantial evidence exists to support the Board’s

order finding at least one of Dr. Finder’s statements false, misleading, or deceptive. We have also



                                                 17
rejected Dr. Finder’s argument that the Board applied a standard other than the published “false,

misleading, or deceptive” standard.

               The United States Supreme Court has held that states may restrict false, deceptive,

or misleading commercial speech. See Ibanez v. Florida Dep’t of Prof’l Regulation, 512 U.S. 136,

142 (1985); Friedman v. Rogers, 440 U.S. 1, 9 (1979). It further recognized that a statement may

be prohibited if it is misleading or deceptive, even if not provably false. Friedman, 440 U.S. at 9-10

(“Obviously, much commercial speech is not provably false, or even wholly false, but only deceptive

or misleading. We foresee no obstacle to a State’s dealing effectively with this problem.”); see also

In re R.M.J., 455 U.S. 191, 203 (1982) (“Truthful advertising related to lawful activities is entitled

to the protections of the First Amendment. . . . Misleading advertising may be prohibited entirely.”).

Because the Board is permitted to restrict false, misleading, or deceptive commercial speech, and

substantial evidence supports its finding that Dr. Finder’s website contained at least one false,

misleading, or deceptive statement, we reject Dr. Finder’s commercial speech claim.

               Additionally, Dr. Finder argues that the Board erred in failing to address her

commercial speech defense in its findings of fact or conclusions of law. Though Dr. Finder argues

that the Board must, under the Administrative Procedure Act, enter findings of fact and conclusions

of law on an affected party’s affirmative defenses, she cites to no statutes or case law that would

support this assertion.

               An agency is not required to state the facts on which it did not rely for support of its

ultimate findings, nor is it required to make factual findings concerning reasons why it rejected an

argument or recommendation. See Cities of Abilene v. Public Util. Comm’n of Tex., 854 S.W.2d



                                                 18
932, 946 (Tex. App.—Austin 1993) (finding nothing in predecessor to Administrative Procedure Act

that required agency to explain rejection of expert testimony), aff’d in part and rev’d in part on other

grounds, 909 S.W.2d 493 (Tex. 1995); Clear Creek Sch. Dist. v. Comm’r of Educ., 775 S.W.2d 490,

493 (Tex. App.—Austin 1989, no writ) (“An agency is not, however, required to state facts that it

rejected or did not rely upon to support its order.”). It is only required that substantial evidence

reasonably support the conclusions that an agency does assert. See Tex. Gov’t Code Ann.

§ 2001.141. As discussed in response to Dr. Finder’s first point of error, the Board’s findings of fact

and conclusions of law are reasonably supported by substantial evidence. Therefore, Dr. Finder’s

fourth point is overruled.

                Because there is substantial evidence to support both the Board’s underlying findings

of fact and its ultimate conclusion that the statements in the “procedure” section of the website’s

“Technique Comparison” chart are false, misleading, or deceptive, the district court did not err in

affirming the Board’s final order.


                                          CONCLUSION

                We affirm the district court’s judgment.



                                                __________________________________________

                                                Diane M. Henson, Justice

Before Chief Justice Jones, Justices Puryear and Henson

Affirmed

Filed: November 18, 2010

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