                                                                                      ACCEPTED
                                                                                 03-14-00644-CV
                                                                                        4794406
                                                                       THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
                                                                             4/7/2015 3:38:41 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK
                            NO. 03-14-00644-CV
   _____________________________________________________________
                                                                 FILED IN
                                                          3rd COURT OF APPEALS
                    IN THE COURT OF APPEALS                   AUSTIN, TEXAS
                    THIRD DISTRICT OF TEXAS               4/7/2015 3:38:41 PM
                          AUSTIN, TEXAS                     JEFFREY D. KYLE
                                                                  Clerk
   _____________________________________________________________

                              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 IN RESPONSE
                 TO APPELLANT’S AMENDED BRIEF
        ____________________________________________________

KEN PAXTON                           TED A. ROSS
Attorney General of Texas            Assistant Attorney General
                                     State Bar No. 24008890
CHARLES E. ROY                       OFFICE OF THE TEXAS ATTORNEY
First Assistant Attorney General     GENERAL
                                     ADMINISTRATIVE LAW DIVISION
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              April 7, 2015
                                        TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

RECORD AND PARTY REFERENCES .................................................................v

ARGUMENT .............................................................................................................2

         I.       INTRODUCTION. ................................................................................2

         II.      WHETHER OR NOT THE TMB IS “THE REAL PARTY IN
                  INTEREST” IS IMMATERIAL. ..........................................................3

         III.     PEREZ’S (NEW) SOVEREIGN IMMUNITY ARGUMENT
                  LACKS MERIT. ...................................................................................5

         IV.      PEREZ’S (NEW) RULE CHALLENGE ARGUMENT IS NOT
                  AT ISSUE IN THIS APPEAL. .............................................................6

         V.       PEREZ’S (NEW) EXCLUSIVE JURISDICITON ARGUMENT
                  LACKS MERIT. ...................................................................................7

         VI.      DISMISSAL WITH PREJUDICE WAS PROPER. .............................8

         VII. PEREZ’S “LEAVE TO AMEND” ARGUMENT LACKS MERIT. ...8

CONCLUSION AND PRAYER ...............................................................................9

CERTIFICATE OF COMPLIANCE .......................................................................10

CERTIFICATE OF SERVICE ................................................................................10




                                                          ii
                                       INDEX OF AUTHORITIES

Cases
Gutierrez v. Laredo Indep. School Dist., 139 S.W.3d 363 (Tex. App.—
      San Antonio 2004, no pet.) ..............................................................................7

Lower Laguna Madre Found., Inc. v. Tex. Nat. Res. Conservation Comm’n,
     4 S.W.3d 419 (Tex. App.—Austin 1999, no pet.) ...........................................7

Presidio Indep. School Dist. v. Scott, 309 S.W.3d 927 (Tex. 2010) .........................5

R.R. Comm’n of Tex. v. ARCO Oil & Gas Co. 876 S.W.2d 473
      (Tex. App.—Austin 1994, writ denied)...........................................................7

Scally v. Tex. State Bd. of Med. Examn’rs, 351 S.W.3d 434
      (Tex. App.—Austin 2011, pet. denied) ...........................................................6

Scott v. Presidio I.S.D., 266 S.W.3d 531 (Tex. App.—Austin 2008,
       pet. granted) .....................................................................................................5

Tex. Dep’t of Ins. v. Reconveyance Servs. Inc., 306 S.W.3d 259 (Tex. 2010) ..........9

Tex. Educ. Agency v. Cypress-Fairbanks I.S.D., 830 S.W.2d 88 (Tex. 1992) ..........7

Wilmer-Hutchins Indep. School Dist. v. Sullivan, 51 S.W.3d 293 (Tex. 2001) ........3


Statutes

Tex. Occ. Code § 164.007(c) .....................................................................................6

Tex. Occ. Code § 204.101 .........................................................................................3

Tex. Occ. Code § 204.106 .........................................................................................4

Tex. Occ. Code §§ 204.151-.157 ...............................................................................3

Tex. Occ. Code §§ 204.201-3209 ..............................................................................3
                                                            iii
Tex. Occ. Code §§ 204.251-.255 ...............................................................................4

Tex. Occ. Code §§ 204.301-.318 ...............................................................................4

Tex. Occ. Code §§ 204.351-.353 ...............................................................................4

Tex. Occ. Code §§ 204.001-.353 ...............................................................................3

Tex. Occ. Code §§ 205.001-.458 ...............................................................................4

Tex. Occ. Code § 205.102 .........................................................................................4




                                                        iv
                    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.”




                                          v
                            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 IN RESPONSE
                  TO APPELLANT’S AMENDED BRIEF
         ____________________________________________________


TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      Appellees, the Texas Medical Board and Mari Robinson, (collectively

“TMB”), by and through the Office of the Attorney General of Texas and the

undersigned Assistant Attorney General, submits the following brief in response to

Appellant’s Amended Brief filed on March 9, 2015.




                                        1
                                   ARGUMENT

I.    INTRODUCTION.

      Perez sought leave to file an amended brief because he claimed that he was

prejudiced by the TMB’s filing of a supplemental clerk’s record after his initial brief

was filed. See Perez “Amended Motion to Abate and Amend Appellate Brief.”

      The supplemental clerk’s record contained the following documents:

(1) Perez’s original petition; (2) the TMB’s Plea to the Jurisdiction, Original Answer

and General Denial, and Affirmative Defenses, filed on May 23, 2014; (3) the

TMB’s First Amended Plea to the Jurisdiction, filed on August 8, 2014; (4) the

TMB’s brief in support of its First Amended Plea to the Jurisdiction, filed on August

13, 2014; and (5) designation of clerk’s record, court docket record, court cost record

and clerk’s record page.       Suppl. CR 2.     The primary purpose of filing the

supplemental record was to ensure that the TMB order from which Perez appealed

to the district court was before the Court. Suppl. CR 70. There is nothing in the

supplemental clerk’s record which raises any new factual or legal issues in this

appeal. Perez was served with all of the pleadings in the supplemental record on the

date they were filed. That includes the TMB order revoking his license. However

instead of addressing any new issues raised by the material in the supplemental

clerk’s record (of which there are none), Perez’s amended brief contains new


                                          2
arguments that he could have raised in his original brief. In any event, those

arguments will be briefly addressed below.

II.   WHETHER OR NOT THE TMB IS “THE REAL PARTY IN
      INTEREST” IS IMMATERIAL.

      In his supplement brief, Perez claims that he sued the correct “real party in

interest” (the TMB) because the “TMB has admitted to having the responsibility to

regulate physician assistants and the (Texas Physician Assistant Board) PAB.”

Amended Br. at 25-26. In support, he cites to selected pages from the TMB’s

“Agency Strategic Plan” for Fiscal Years 2009-2013. Perez’s selected quotations

from that document are irrelevant to whether or not the district court had subject

matter jurisdiction; it is well-settled law that parties to a suit cannot confer

jurisdiction where none exists. Wilmer-Hutchins Indep. School Dist. v. Sullivan, 51

S.W.3d 293, 295-96 (Tex. 2001). Nothing can change the fact that the licensing and

discipline of physician assistants is under an entirely different statutory scheme than

that of the Medical Practice Act. See Texas Physician Assistant Licensing Act

(“PALA”), Tex. Occ. Code §§ 204.001-.353. See also, e.g., Tex. Occ. Code

§ 204.101 (powers and duties of the PAB); § 204.151-.157 (PAB exclusively

responsible for issuing licenses to physician assistants); § 204.201-3209 (PAB

exclusively responsible for regulating the practices of licenses physician assistants);

§ 204.251-.255 (PAB exclusively responsible for complaints and investigations

                                          3
related to licensed physician assistants); §§ 204.301-.318; .351-.353 (PAB

exclusively responsible for the discipline of licensed physician assistants).

      In addition, the PALA requires the physician assistant board to “develop and

implement policies (subject to the advice and approval of the TMB) that clearly

separate the policy-making responsibilities of the physician assistant board and the

management responsibilities of the executive director and the staff of the medical

board.” Tex. Occ. Code § 204.106. This is further evidence that the legislature, in

adopting both licensing acts, intended the two boards to have separate jurisdictional

responsibilities.

      To follow Perez’s argument to its logical conclusion would mean that the

district court would have had jurisdiction even if Perez had sued, say, the Texas State

Board of Acupuncture Examiners (which obviously has nothing to do with the

licensing or discipline of physician assistants). The acupuncture licensing act, like

the PALA, has the same requirement regarding separating the policy-making

responsibilities of the acupuncture board and the TMB. Tex. Occ. Code § 205.102.

Moreover, acupuncturists are licensed and disciplined under separate statutory

schemes. See Tex. Occ. Code §§ 205.001-.458.

      Perez goes on in his amended brief to claim that the TMB “must prove that the

Texas Legislature has clearly indicated that failure to sue the . . . PAB is

jurisdictional.” Perez Am. Br. at 41 (emphasis original). The TMB has in fact
                                       4
established that Perez’s failure to sue the PAB is in fact a statutory prerequisite to

suit.

        Perez’s reliance on Scott v. Presidio I.S.D., 266 S.W.3d 531 (Tex. App.—

Austin 2008, pet. granted) is misplaced.1 The court in that case simply re-stated the

well-settled principle that a statutory prerequisite to suit affecting only venue is not

jurisdictional. 266 S.W.3d at 535-36.

        The bottom line is that the separate statutory schemes delineating the powers

and responsibilities of the TMB and PAB are clearly indicative of the fact that a

failure to sue the correct entity in a suit for judicial review is indeed jurisdictional.2

III.    PEREZ’S (NEW) SOVEREIGN IMMUNITY ARGUMENT LACKS
        MERIT.

        In his amended brief, Perez argues several constitutional issues. See Amended

Br. at 26-32; 52-54. As discussed in the TMB’s original brief, Perez’s constitutional

claims are part of the statutory prerequisites for judicial review. Therefore, because

the district court lacked subject matter jurisdiction over his suit for judicial review




1
 Presidio was reversed on other grounds. Presidio Indep. School Dist. v. Scott, 309 S.W.3d 927
(Tex. 2010).
2
 Perez’s misplaced reliance on Sierra Club is discussed in the TMB’s initial brief at 10-11. See
Perez Am. Br. at 42.
                                               5
because he sued the wrong statutory entity, the court lacked jurisdiction over the

constitutional claims as well. See TMB Br. at 11-13.3

IV.    PEREZ’S (NEW) RULE CHALLENGE ARGUMENT IS NOT AT
       ISSUE IN THIS APPEAL.

       Section III of Perez’s amended brief begins with a purported rule challenge

under the Texas Administrative Procedure Act (“APA”). See, e.g., Perez Amended

Br. at 39. Perez did not plead an APA rule challenge in his petition for judicial

review. Suppl. CR 3-51. The validity of any TMB rule is therefore not an issue in

this appeal.

       Equally irrelevant to this appeal is Perez’s claim that he was deprived of due

process because § 164.007(c) of the Medical Practice Act (which doesn’t even

apply) prevents him from confronting or cross-examining adverse witnesses. Perez

Am. Br. at 36-37. However, he in fact waived his right to confront and cross-

examine witness in a contested case proceeding by steadfastly refusing to participate

in the entire disciplinary process, despite having received all notices required by law.

Suppl. CR 70, ¶ 3; 71, ¶ 8.




3
 Perez seems to assert a claim that “common law,” and not the PALA, governs his license. See,
e.g., Perez Amended Br. at 27-28. That is obviously not true. The PALA was enacted pursuant
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). The constitutionality of the act has never been in question.

                                               6
V.     PEREZ’S (NEW) EXCLUSIVE JURISDICITON ARGUMENT LACKS
       MERIT.

       Perez’s argument that that the doctrine of exclusive jurisdiction does not apply

where constitutional claims have been asserted, or where the agency has already

made a final decision, is also meritless. Perez Br. at 43. The Gutierrez case he cites

held that an aggrieved party is not required to exhaust administrative remedies where

the Commissioner of Education lacks jurisdiction. Gutierrez v. Laredo Indep.

School Dist., 139 S.W.3d 363, 366 (Tex. App.—San Antonio 2004, no pet.), citing

Tex. Educ. Agency v. Cypress-Fairbanks I.S.D., 830 S.W.2d 88, 90-91 (Tex. 1992).

That is not the issue in this appeal. Perez cannot dispute the fact that the PAB had

exclusive jurisdiction over his disciplinary proceeding in the first instance, and it

was that agency that issued the default order which is the subject of this case.

Gutierrez is therefore distinguishable.

       Equally irrelevant is the primary jurisdiction doctrine discussed in R.R.

Comm’n of Tex. v. ARCO Oil & Gas Co. 876 S.W.2d 473 (Tex. App.—Austin 1994,

writ denied). It again cannot be disputed that the PAB had both exclusive and

primary jurisdiction over Perez’s administrative proceeding.4




4
  The ARCO case in fact involved the reasoned justification doctrine as it applies to APA rule
challenges, and the case was later superseded by statute. See Lower Laguna Madre Found., Inc.
v. Tex. Nat. Res. Conservation Comm’n, 4 S.W.3d 419, 425 (Tex. App.—Austin 1999, no pet.).

                                              7
      Perez’s argument also ignores the fact that constitutional claims are part of

the statutory prerequisites for judicial review. The fact that he failed to sue the

proper entity—itself a statutory prerequisite—precludes all of his constitutional

claims. See TMB Br. at 11-13.

VI.   DISMISSAL WITH PREJUDICE WAS PROPER.

      Perez’s claim that the dismissal of his suit should have been without prejudice

is premised on the mistaken assumption that his failure to sue the PAB was a defect

of parties and not jurisdictional. This argument is incorrect for the reasons discussed

above and in the TMB’s initial brief. See TMB Br. at 6-11.

VII. PEREZ’S “LEAVE TO AMEND” ARGUMENT LACKS MERIT.

      Perez claims that he should have been granted leave to amend to add Mari

Robinson in her official capacity as a party defendant. Perez Am. Br. at 50-51. He

in fact did name her as a party in his original petition. Suppl. CR 3. Yet, he did not

allege any ultra vires actions on her part and he did not seek leave to amend in the

district court. Id. at 3-51. See also TMB Br. at 15-17. Ultra vires claims are barred

when a court lacks subject matter jurisdiction in a suit where the plaintiff only sues

a governmental entity and does not sue an official in his or her official capacity. See




                                          8
Tex. Dep’t of Ins. v. Reconveyance Servs. Inc., 306 S.W.3d 259-60 (Tex. 2010). The

dismissal with prejudice was therefore proper.5

                             CONCLUSION AND PRAYER

       For the foregoing reasons and as discussed in its original brief, the TMB

respectfully requests that this Court affirm the district court’s final judgment

granting TMB’s Plea to the Jurisdiction.

Dated: April 7, 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




5
 Perez’s argument that he should have been granted leave to amend to assert jurisdictional facts
under federal law are equally baseless. Perez Am. Br. at 57-60. Whether or not constitutional
claims may be raised for the first time on appeal of a federal district court case has nothing to do
with satisfying jurisdictional prerequisites to suit under the APA and Texas jurisprudence.
                                                 9
                               /s/ Ted A. Ross
                               Ted A. Ross
                               Assistant Attorney General
                               State Bar No. 24008890
                               OFFICE OF THE TEXAS ATTORNEY GENERAL
                               ADMINISTRATIVE LAW DIVISION
                               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 1,727 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 7th day of April 2015:

Jose A. Perez, pro se                Via: Electronic Mail and
34 Candle Pine Place                 CMRRR #7007 0220 0000 5721 3952
The Woodlands, Texas 77381
Email: theaesculapius@gmail.com
                                            /s/ Ted A. Ross
                                            Ted A. Ross
                                            Assistant Attorney General

                                       10
