                                                                                               ACCEPTED
                                                                                          03-14-00390-CV
                                                                                                  3711863
                                                                                THIRD COURT OF APPEALS
                                                                                           AUSTIN, TEXAS
                                                                                     1/9/2015 11:54:29 AM
                                                                                         JEFFREY D. KYLE
                                                                                                   CLERK
                     NO. 03-14-00390-CV
____________________________________________________________
                                                                     FILED IN
                  IN THE COURT OF APPEALS     3rd COURT OF APPEALS
              FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS
                       AT AUSTIN, TEXAS       1/9/2015 11:54:29 AM
                                                JEFFREY D. KYLE
____________________________________________________________
                                                                      Clerk

                         CHARLES P. AKIN, D.D.S.,
                               Appellant

                                        v.

         TEXAS STATE BOARD OF DENTAL EXAMINERS,
                          Appellee
____________________________________________________________

          On Appeal from the 200th Judicial District Court
                     Of Travis County, Texas
            The Honorable Orlinda Naranjo Presiding
____________________________________________________________

      APPELLANT CHARLES P. AKIN, D.D.S.’S REPLY BRIEF
____________________________________________________________

                                             Mark J. Hanna
                                             State Bar No. 08919500
                                             Robert M. Anderton
                                             State Bar No. 00795223
                                             900 Congress Avenue, Suite 250
                                             Austin, Texas 78701
                                             Telephone: (512) 477-6200
                                             Facsimile: (512) 477-1188

                                             Jon M. Smith
                                             State Bar No. 18630750
                                             3305 Northland Drive, Suite 500
                                             Austin, Texas 78731
                                             Telephone: (512) 371-1006
                                             Facsimile: (512) 476-6685
ORAL ARGUMENT REQUESTED
____________________________________________________________________________________
                  Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 1
                            TABLE OF CONTENTS




                                                                            PAGE

INDEX OF AUTHORITIES ………………………………………………………3

IDENTITY OF PARTIES AND COUNSEL……………………………………..5

REFERENCE TO THE PARTIES AND RECORD ……………………………6

SUMMARY OF THE ARGUMENT……………………………………………...7

ARGUMENT ………………………………………………………………………7

CONCLUSION ………………………………………………………………….12

PRAYER …………………………………………………………………………13

CERTIFICATE OF COMPLIANCE ……………………………………………14

CERTIFICATE OF SERVICE ………………………………………………….14




____________________________________________________________________________________
                  Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 2
                          INDEX OF AUTHORITIES


CASES                                                                      PAGE

Chalifoux v. Texas State Board of Medical Examiners,
No. 03-05-00320-CV, 2006 WL 3196461
(Tex. App.—Austin 2006, pet. denied)(mem.Op.) ………………………...7,11

Dental Examiners v. Neeley, 574 S.W.2d 244, 245
(Tex. App.—Austin 1978, no writ)……………………………………………..12

Kittman v. State Board of Pharmacy of Texas,
607 S.W.2d 26, 29 (Tex. App.—Tyler 1980, no writ)………………………..12

Korndorffer v. Texas State Board of Medical Examiners,
460 S.W.2d 879 (Tex. 1970)…………………………………………………...12

Texas State Bd. of Med. Exam’rs v. McClellan,
307 S.W.2d 317, 320 (Tex. Civ. App.—Houston 1957,
writ ref’d n.r.e.)……………………………………………………………….11,12




____________________________________________________________________________________
                  Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 3
                     NO. 03-14-00390-CV
____________________________________________________________

                  IN THE COURT OF APPEALS
              FOR THE THIRD DISTRICT OF TEXAS
                       AT AUSTIN, TEXAS
____________________________________________________________

                         CHARLES P. AKIN, D.D.S.,
                               Appellant

                                        v.

         TEXAS STATE BOARD OF DENTAL EXAMINERS,
                          Appellee
____________________________________________________________

          On Appeal from the 200th Judicial District Court
                     Of Travis County, Texas
            The Honorable Orlinda Naranjo Presiding
____________________________________________________________

      APPELLANT CHARLES P. AKIN, D.D.S.’S REPLY BRIEF
____________________________________________________________

                                             Mark J. Hanna
                                             State Bar No. 08919500
                                             Robert M. Anderton
                                             State Bar No. 00795223
                                             900 Congress Avenue, Suite 250
                                             Austin, Texas 78701
                                             Telephone: (512) 477-6200
                                             Facsimile: (512) 477-1188

                                             Jon M. Smith
                                             State Bar No. 18630750
                                             3305 Northland Drive, Suite 500
                                             Austin, Texas 78731
                                             Telephone: (512) 371-1006
                                             Facsimile: (512) 476-6685
ORAL ARGUMENT REQUESTED
____________________________________________________________________________________
                  Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 4
                      IDENTITY OF PARTIES AND COUNSEL


Appellant:                            Charles P. Akin, D.D.S.

Appellant’s Counsel:                  Robert M. Anderton
                                      State Bar No. 00795223
                                      Mark J. Hanna
                                      State Bar No. 08919500
                                      900 Congress Avenue, Suite 250
                                      Austin, Texas 78701
                                      Telephone: (512) 477-6200
                                      Facsimile: (512) 477-1188

                                      Jon M. Smith
                                      State Bar No. 18630750
                                      3305 Northland Drive
                                      Suite 500
                                      Austin, Texas 78731
                                      Telephone: (512) 371-1006
                                      Facsimile: (512) 476-6685

Appellee:                             Texas State Board of Dental Examiners

Appellee’s Counsel:                   Mr. Harold J. Liller
                                      State Bar No. 24029689
                                      Assistant Attorney General
                                      Administrative Law Division
                                      Office of the Texas Attorney General
                                      P.O. Box 12548, Capitol Station
                                      Austin, Texas 78711-2548
                                      Telephone: (512) 475-4300
                                      Facsimile: (512) 320-0167




____________________________________________________________________________________
                  Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 5
                       REFERENCE TO THE PARTIES

       Appellant will refer to Appellant, Charles P. Akin, D.D.S., as “Dr. Akin”

and Appellee, the Texas State Board of Dental Examiners, as “the Board.”



                       REFERENCE TO THE RECORD

Reference                      Meaning

A.R.                           Administrative Record Tab ___

C.R.                           Clerk’s Record at page ___




____________________________________________________________________________________
                  Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 6
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF

APPEALS:

       Appellant, Charles P. Akin, D.D.S., files this reply brief and would

show as follows:



                         SUMMARY OF THE ARGUMENT

       The purpose of this brief is to address two specific issues raised in

the Board’s brief: (1) The Board’s misstatement of the facts about the

relationship between Dr. Akin wearing a nametag and accepting and

depositing checks; and (2) The Board’s misplaced reliance on the

Chalifoux1 case. As the remaining issues have been thoroughly briefed in

Dr. Akin’s original brief, this reply brief will be limited to those two issues.



                                      ARGUMENT

       The Board incorrectly claims in its brief that Dr. Akin accepted and

deposited checks from patients while wearing a nametag stating that he

was a dentist. The Board also improperly relies on the Chalifoux case to

support its position that it was correct to withhold Dr. Akin’s dental license.

As the following paragraphs illustrate, both of these positions are flawed.



1Chalifoux v. Texas State Board of Medical Examiners, No. 03-05-00320-CV, 2006 WL 3196461 (Tex.
App.—Austin 2006, pet. denied)(mem. Op.).
____________________________________________________________________________________
                      Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 7
There is No Evidence that Dr. Akin Accepted Checks While Wearing a
Nametag


      On page 3 of its brief, the Board states as follows:

      Upon his release from prison, Appellant began working at
      various dental offices, and, at some point, he began wearing a
      nametag evidencing that he was “DDS, Retired.” Appellant’s
      representations clearly had a direct or indirect effect on his
      public perception. While working at a dental office and wearing
      this nametag, Appellant accepted and deposited checks from
      patients for dental services into his personal account.

      This statement is contrary to the testimony given at the hearing in this

case. Dr. Akin testified that he helped manage the office at the Denture

Shop in Dripping Springs. (AR 12, 18:2-7; 56:22-58:3) He further testified

that while working there he was visited by a dental investigator and he was

wearing the nametag that stated, “Charles P. Akin, Office Manager, D.D.S.

Retired.” (AR 12, 18:8-16; 41:9-25)        The only evidence about Dr. Akin

wearing a nametag is that he did so in the Dripping Springs Denture Shop

office.     There is no evidence that he wore the nametag at any other

location.

      There is evidence of another Denture Shop location on Burnet Road.

(AR 12, 17:8-10)      The corporate documents offered as exhibits by the

Board show that Charles P. Akin, D.D.S., P.C. obtained an assumed name

certificate for the name “Denture Shop.” (AR 11, RX 2) It also indicates

that on May 16, 1997 the registered office of the professional corporation
____________________________________________________________________________________
                  Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 8
was changed from 1600 West 35th Street to 5020 Burnet Road. (AR 11, RX

2) The complaint upon which the Board relies to support its claim that Dr.

Akin improperly accepted a check references dental work performed at

5020 Burnet Road. (AR 11, RX 5)            Dr. Akin’s testimony regarding the

acceptance of the check references the Burnet Road office. (AR 12, 30:17-

32:22; AR 11, RX4)        All of the evidence regarding the acceptance of

checks relates to the Burnet Road office. There is no evidence regarding

any checks submitted at the Dripping Springs location.

     Wayne Langham distinguished between the Burnet Road and

Dripping Springs locations in his testimony. (AR 12, 73:12-74:5) But when

Dr. Akin attempted to clarify between the Burnet Road and Dripping

Springs offices, counsel for the Board attempted to cloud the issue.

     Q: Isn’t that what you just said, you told people you were D.D.S.
     and retired and you had a badge that said you were D.D.S.
     retired?

     A: Are we talking about Dr. Herron on Burnet Road, or are we
     talking about Dripping Springs?

     Q: I’m talking about you Dr. Akin. It’s all about you today.

     A: Okay.

     (AR 12, 62:8-15)

     Q: But the patient wrote a check to you, for Dr. Akin, did she
     not?

     A: You’re kind of jumping from one office to the other.
____________________________________________________________________________________
                  Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 9
         Q: I’m trying to get you to nail down –

         A: What patient?

         Q: Ms. Fisher.

         A: Ms. Fisher. Well, I think –

         Q: Wrote a check to you, for Dr. Akin, did she not?

         A: We’ve already been through that. And, yes, ma’am, there
         was a check.

         Q: And you were – you wear a badge calling yourself a
         D.D.S.—

         A: I did not wear a badge at that time.

         Q: But you did later?

         A: A couple years later, I guess, or a year and a half. I don’t
         know what the date is when I got the badge.

         (AR 12, 64:10-65:3)


         Interestingly, the Administrative Law Judge was able to distinguish

between the wearing of the nametag in the Dripping Springs office and the

issue with the checks at the Burnet Road office. (AR 17, pp. 4-7) There is

nothing in the ALJ’s decision to indicate that one issue is related to the

other.

         The Board’s statement that “While working at a dental office and

wearing this nametag, Appellant accepted and deposited checks..” is an

____________________________________________________________________________________
                  Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 10
incorrect statement of fact and is an attempt to mislead the court. Because

this statement is false, the Board’s argument that Dr. Akin’s wearing the

nametag convinced patients to write checks to him fails.



The Board’s Reliance on the Chalifoux case is Misplaced

         On page 14 of its brief the Board cites the unpublished Chalifoux

case for the proposition that the Board is not required to comply with

criminal standards.          But that quote from the Chalifoux case misses the

point.

         The Texas Medical Board filed a formal complaint against Dr.

Chalifoux claiming that his treatment of 13 patients fell below the accepted

standard of care and constituted unprofessional or dishonorable conduct.

Chalifoux at 4. The ALJ found that Dr. Chalifoux’s treatment of three of the

patients was substandard and the Board revoked his license. Id. at 10.

         On appeal, Dr. Chalifoux cited the McClellan2 case for the proposition

that a formal complaint by the Medical Board must have the certainty of a

criminal indictment. Id. at 17. The court disagreed stating that the Board’s

complaint had been sufficiently detailed to put Dr. Chalifoux on notice of the

substance of the claim. Id. at 17-18. The Chalifoux case is not applicable

to this case.
2 Texas State Bd. of Med. Exam’rs v. McClellan, 307 S.W.2d 317, 320 (Tex. Civ. App.—Houston 1957, writ
ref’d n.r.e.)
 ____________________________________________________________________________________
                      Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 11
       Dr. Akin does not complain in this case that the Board’s complaint

against him was not sufficiently detailed to put him on notice of its basis.

Instead, Dr. Akin has cited the McClellan, Korndorffer 3 , Kittman 4 and

Neeley5 cases for the proposition that the Board must prove its allegations

in order to support the penalty that it proposes. Dr. Akin has fully analyzed

each of these published opinions in his first brief and they still support the

position that while the Board has presented piecemeal evidence of the

violations that it claims, it has not presented evidence in support of each

element of the violations that it claims. There is evidence that Dr. Akin

wore a nametag, but no information that it misled anyone.                           There is

evidence that Dr. Akin accepted and deposited two checks, but not

evidence that he did so in exchange for any dental services. Because of

this lack of evidence, the Board’s complaints fail.



                                      CONCLUSION

       The Board has misstated the facts attempting to relate Dr. Akin’s

wearing of the nametag with his receipt of checks.                             It has also

misinterpreted the law relating to its duty to prove its complaints against Dr.




3 Korndorffer v. Texas State Board of Medical Examiners, 460 S.W.2d 879 (Tex. 1970)
4 Kittman v. State Board of Pharmacy of Texas, 607 S.W.2d 26, 29 (Tex. App.—Tyler 1980, no writ)
5 Dental Examiners v. Neeley, 574 S.W.2d 244, 245 (Tex. App.—Austin 1978, no writ)

 ____________________________________________________________________________________
                       Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 12
Akin.    As a result, the Trial Court erred when it affirmed the Board’s

decision not to license Dr. Akin.



                                    PRAYER



        FOR THE FOREGOING REASONS, Appellant prays that this Court

reverse the trial court’s final judgment, reverse the decision of the Board,

and order that Appellant’s application for licensure be granted.


                               Respectfully submitted,

                               LAW OFFICES OF HANNA & ANDERTON



                               By:_____________________________
                                    Mark J. Hanna
                                    State Bar No. 08919500
                                    Robert M. Anderton
                                    State Bar No. 00795223
                                    900 Congress Avenue, Suite 250
                                    Austin, Texas 78701
                                    Telephone: (512) 477-6200
                                    Facsimile: (512) 477-1188

                                      Jon M. Smith
                                      State Bar No. 18630750
                                      3305 Northland Drive, Suite 500
                                      Austin, Texas 78731
                                      Telephone: (512) 371-1006
                                      Facsimile: (512) 476-6685

                                      ATTORNEYS FOR APPELLANT
____________________________________________________________________________________
                  Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 13
                      CERTIFICATE OF COMPLIANCE

     I, Mark J. Hanna, do hereby certify that the Appellant’s Brief contains
2,004 words, according to the word count of the computer program used to
prepare it, in compliance with Texas Rule of Appellate Procedure 9.4(i)(3).




                                      ________________________________
                                      MARK J. HANNA



                         CERTIFICATE OF SERVICE

     I, Mark J. Hanna, do hereby certify that a true and correct copy of the
foregoing document was delivered to all attorneys of record as listed below
via facsimile on January 9, 2015.

Mr. Harold J. Liller
Assistant Attorney General
Administrative Law Division
Post Office Box 12548
Capitol Station
Austin, Texas 78711-2548
Via Facsimile (512) 320-0167



                                      ________________________________
                                      MARK J. HANNA




____________________________________________________________________________________
                  Appellant Charles P. Akin, D.D.S.’s Reply Brief – Page 14
