      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00399-CV



           Gerald Froemming, D.D.S., Texas Dental License No. 12286, Appellant

                                                 v.

                       Texas State Board of Dental Examiners, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
      NO. D-1-GN-10-003544, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING



                                          OPINION


               Appellant Gerald Froemming, D.D.S., appeals a district court judgment affirming a

final order of the Texas State Board of Dental Examiners (the Board). The Board’s order found

Froemming in violation of the Texas Dental Practice Act and the Board’s rules and revoked his

license to practice dentistry in the State of Texas. See generally Tex. Occ. Code Ann. §§ 251.001-

276.006 (West 2012). In three issues, Froemming contends that the district court erred in affirming

the Board’s final order. We will affirm the district court’s judgment.


                                         BACKGROUND

               Prior to the disciplinary action from which this appeal arose, Froemming was a

dentist, licensed by the Board on September 24, 1979.1 In 2009, the Board brought a disciplinary


       1
         The facts recited herein are taken from the administrative record, which was admitted as
an exhibit by the district court and which includes the pleadings filed in the contested case and the
action against Froemming by filing a complaint with the State Office of Administrative Hearings

(SOAH). Id. § 263.003 (providing that when Board seeks to revoke license, person is entitled to

hearing under chapter 2001 of government code); 22 Tex. Admin. Code § 107.23 (2012) (Tex. State

Bd. of Dental Exam’rs, Commencement of Formal Disciplinary Proceedings) (providing that

formal disciplinary proceedings are initiated by Board’s filing of public formal complaint). In its

complaint, the Board alleged that Froemming had twice entered into agreements to charge patients

a certain amount for orthodontic services and then later attempted to increase the amount charged.

The Board also alleged that Froemming had abandoned patients by failing to continue treatment

due to balances owed for services. Based on Froemming’s past disciplinary history, as set out in

prior orders issued by the Board and attached to its complaint, the Board’s staff sought revocation

of Froemming’s license.

               On April 5, 2010, an administrative law judge (ALJ) conducted an evidentiary hearing.

After the record was closed, the ALJ issued a proposal for decision, concluding that Froemming had

engaged in unprofessional and dishonorable conduct in the billing of services for patients M.E. and

F.S., in violation of Texas Occupations Code Section 259.008(1) and Texas Administrative Code

Sections 108.2(e) and 109.103. Tex. Occ. Code Ann. § 259.008(1) (providing that person may not

engage in unprofessional conduct by attempting to collect fee by fraud or misrepresentation); 22 Tex.

Admin. Code § 108.2(e) (2012) (Tex. State Bd. of Dental Exam’rs, Fair Dealing) (providing




exhibits admitted at the contested-case hearing. See Tex. Gov’t Code Ann. § 2001.060 (West 2008).
According to the parties, no transcript or recording of the hearing was made. See id. § 2001.059
(West 2008) (“On the written request of a party to a contested case, proceedings, or any part of the
proceedings, shall be transcribed.”).

                                                 2
that dentist shall not “flagrantly or persistently overcharge . . . a patient”); 22 Tex. Admin. Code

§ 109.103 (2001) (Tex. State Bd. of Dental Exam’rs, Professional Responsibility) repealed and

moved to 22 Tex. Admin. Code § 108.3, 26 Tex. Reg. 1494 (2001) (a dentist’s professional

responsibility includes compliance with the Dental Practice Act and Board’s rules). The ALJ also

concluded that Froemming had abandoned M.E., a minor patient, in violation of Texas

Administrative Code Sections 108.5 and 108.7. 22 Tex. Admin. Code §§ 108.5 (Tex. State Bd. of

Dental Exam’rs, Patient Abandonment), 108.7 (2012) (Tex. State Bd. of Dental Exam’rs, Minimum

Standard of Care).

               With respect to the appropriate sanction against Froemming, the ALJ explained in

the proposal for decision that revocation, as requested by the Board, was “too harsh a penalty.” The

ALJ reasoned that while Froemming was on probation at the time of the hearing and would remain

on probation until August 19, 2010, he had committed only one of the violations while on probation.

In conclusion of law number 7, the ALJ stated that the Board should instead revoke Froemming’s

current probation of his license suspension and impose an additional probated five-year suspension

after August 19, 2010.

               The Board subsequently filed exceptions to the proposal for decision, arguing that

conclusion of law number 7 should be reclassified as a recommendation. See Tex. Gov’t Code Ann.

§ 2001.062 (West 2008) (providing that proposal for decision may be amended in response to

exceptions submitted by parties). In response to the Board’s exceptions, the ALJ issued a letter

opinion agreeing that conclusion of law number 7 should be reclassified as a recommendation. On

August 20, 2010, the Board issued its order, which adopted all of the ALJ’s findings of fact and

remaining conclusions of law, vacated conclusion of law number 7, and revoked Froemming’s license.

                                                 3
               After exhausting his administrative remedies before the Board, Froemming sought

judicial review of the Board’s final order in district court, which affirmed the Board’s order in

full. See Tex. Gov’t Code Ann. § 2001.171 (West 2008). On appeal, in three issues, Froemming

challenges the Board’s decision to reject the ALJ’s recommendation to impose a five-year probated

suspension and instead impose the harsher sanction of revocation.


                                    STANDARD OF REVIEW

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

standard of the Texas Administrative Procedure Act (APA). See id. § 2001.074 (West 2008). This

standard requires that we reverse or remand a case for further proceedings “if substantial rights of

the appellant have been prejudiced because the administrative findings, conclusions, or decisions”

are (A) in violation of a constitutional or statutory provision, (B) in excess of the agency’s statutory

authority, (C) made through unlawful procedure, (D) affected by other error of law, (E) not

reasonably supported by substantial evidence considering the reliable and probative evidence in the

record as a whole, or (F) arbitrary or capricious or characterized by abuse of discretion or clearly

unwarranted exercise of discretion. Id. § 2001.174(2)(A)-(F).

               On appeal from the district court’s judgment, the focus, as in the district court, is on

the Board’s decision. See Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 562 (Tex. 2000).

With respect to subparagraph (E), the test is not whether we believe the Board reached the correct

conclusion, 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 2005, no pet.). Thus, we will sustain the Board’s action if the evidence as

                                                   4
a whole is such that reasonable minds could have reached the conclusion that the Board must have

reached in order to justify its action. Texas State Bd. of Dental Exam’rs v. Sizemore, 759 S.W.2d 114,

116 (Tex. 1988). We presume that the Board’s order is supported by substantial evidence, and

Froemming, as the party appealing the order, has the burden to prove otherwise. Texas Health

Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984). Further, we

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

committed to agency discretion. See Tex. Gov’t Code Ann. § 2001.174; Pierce v. Texas Racing

Comm’n, 212 S.W.3d 745, 751 (Tex. App.—Austin 2006, pet. denied).


                                            DISCUSSION


Modification of conclusion of law number 7

                In his first issue, Froemming argues that the Board improperly rejected the ALJ’s

conclusion of law number 7 because, in doing so, the Board failed to comply with rule 107.51 of

the Texas Administrative Code. 22 Tex. Admin. Code § 107.51 (2012) (Tex. State Bd. of Dental

Exam’rs, Findings of Fact and Conclusions of Law).

                Rule 107.51(a) provides that the Board may change a finding of fact or conclusion

of law made by an ALJ if the Board determines that: (1) the ALJ improperly applied or interpreted

the law, agency rules, written policies, or prior administrative decisions; (2) the ALJ relied on a prior

administrative decision which is incorrect or should be changed; or (3) a finding of fact contains

a technical error which should be changed. See 22 Tex. Admin. Code § 170.51(a); see also Tex.

Gov’t Code Ann. § 2001.058(e) (West 2008). In addition, under rule 107.51(b), the Board must



                                                   5
explain with particularity the specific reason and legal basis for any change made. Compare 22

Tex. Admin. Code § 170.51(b) with Tex. Gov’t Code Ann. § 2001.058(e).2

                 Froemming asserts that rule 107.51 was not satisfied because the Board never found

that the ALJ committed any error under rule 107.51(a) but instead simply ignored the

recommendation of the ALJ. Further, Froemming argues that the Board failed to satisfy rule 107.51

because it failed to explain in writing its reasons for rejecting the ALJ’s recommendation concerning

the sanction. In response, the Board argues rule 107.51 is not implicated by its decision in this case

because the ALJ merely issued a recommendation regarding the appropriate sanction, not a

conclusion of law or finding of fact that is presumptively binding on the Board. In the alternative,

the Board argues that even if rule 107.51 does apply, the Board properly explained its rationale by

stating the specific reason and legal basis for its ruling.3

        2
            Section 2001.058(e) of the Texas Administrative Procedures Act provides:

        A state agency may change a finding of fact or conclusion of law made by the
        administrative law judge, or may vacate or modify an order issued by the
        administrative judge, only if the agency determines:
        (1) that the administrative law judge did not properly apply or interpret applicable
        law, agency rules, written policies provided under subsection (c), or prior
        administrative decision;
        (2) that a prior administrative decision on which the administrative law judge relied
        is incorrect or should be changed; or
         (3) that a technical error in a finding of fact should be changed.

Tex. Gov’t Code Ann. § 2001.058(e) (West 2008).
        3
         As explained by the Board, while Froemming solely argues that the Board failed to comply
with rule 107.51, this argument also implicates the Board’s discretion under Section 2001.058(e)
of the Texas Administrative Procedure Act (APA). See Tex. Gov’t Code Ann. § 2001.058(e) (West
2008). Section 2001.058(e) provides the general rule that guides an agency’s discretion when
making changes to an ALJ’s findings of fact or conclusions of law. While in some cases an agency’s
discretion under section 2001.058 is superseded by legislative enactment, we do not find that

                                                   6
                In essence, the Board argues that the ALJ’s label of “recommendation” removes any

limit on its discretion to change or modify the ALJ’s penalty recommendation. We disagree that the

labeling of the ALJ’s proposed sanction as a “recommendation” rather than as a “finding of fact” or

a “conclusion of law” ultimately determines its binding effect. While this Court has previously

recognized that an agency, like the Board, is not required to give “presumptively binding” effect to

an ALJ’s recommendation regarding sanctions in the same manner as with other findings of fact and

conclusions of law, we have nevertheless analyzed whether the requirements of section 2001.058(e)

of the APA have been met.4 See Granek, 172 S.W.3d at 781; see Texas State Bd. of Dental Exam’rs

v. Brown, 281 S.W.3d 692, 697 (Tex. App.—Corpus Christi 2009, pet. denied) (noting that

disciplinary recommendation implicated section 2001.058(e) despite noting that Board was not

required to give “presumptively binding effect” to sanction recommendation). In any event, we need

not decide whether the Board’s decision to modify the ALJ’s sanction recommendation directly




2001.058 is superseded in this case. Cf. State v. Mid-South Pavers, Inc., 246 S.W.3d 711, 721 (Tex.
App.—Austin 2007, pet. denied) (concluding that section 201.112(c) of the transportation code
superseded section 2001.058(e) of the government code). Instead, as the Board points out, rule
107.51 and section 2001.058(e) are substantially similar, such that the Board’s discretion to
change or modify a proposal for decision under rule 107.51 is consistent with the Board’s discretion
under section 2001.058(e). Therefore, a determination that the Board complied with rule 107.51 is
necessarily a determination that the Board also complied with section 2001.058(e) of the APA.
        4
          Further, the propriety of distinguishing an ALJ’s recommendation regarding sanctions from
other findings of fact and conclusions of law, as urged by the Board, has recently been called into
question by a leading commentator in Texas administrative law. Ron Beal, Contested Cases Under
the Texas Administrative Procedure-Act-Selected Issues: Ex Parte Contacts and Disciplinary Rule
3.05; the Breadth of the Agency Record; ALJ Findings Related to Proposed Sanctions; and the
Power of an Agency to Modify, 12 Tex. Tech. Admin. L. J. 223, 278 (2011) (“There is no question
all changes to the order must be justified, and therefore, it is irrelevant whether a sanction is a finding
of fact or one of law or otherwise.”).

                                                    7
implicates the requirements of rule 107.51.5 Because the Board complied with the requirements of

the rule, it was authorized to modify the sanction recommendation. See Pierce, 212 S.W.3d at 754

n.7 (upholding racing commission’s rejection of ALJ’s penalty recommendation and concluding that

racing commission complied with section 2001.058(e) of APA).

                In rejecting the ALJ’s recommendation to suspend Froemming’s license, the Board

explained in its order that:


        The Board considers aggravating and mitigating circumstances in determining an
        appropriate sanction, including the prior disciplinary action, prior violations of
        a similar nature, and attempts to circumvent a statute or board rule. In this case,
        Respondent has been sanctioned four times in the past for violations of the Dental
        Practice Act and Board rules (board order dated August 19, 2005[;] October 31,
        2003; August 23, 2002[;] and April 25, 1997), was on probation from this last board
        order until August 19, 2010, and was on probation for prior violations of similar
        nature. Respondent entered into Agreed Settlement Orders for those violations.


In other words, the Board determined that the ALJ failed to properly consider prior disciplinary

actions and violations, and thus her sanction recommendation was inconsistent with the Board’s

adopted disciplinary guidelines and rules. See 22 Tex. Admin. Code § 107.202 (2012) (Tex. State

Bd. of Dental Exam’rs, Disciplinary Guidelines and Administrative Penalty Schedule) (providing

that Board determines penalty based on certain criteria, including history of previous violations);

22 Tex. Admin. Code § 107.203(a) (2012) (Tex. State Bd. of Dental Exam’rs, Aggravating and

Mitigating Factors) (providing that aggravating factors considered by Board in disciplinary actions

include prior violations and disciplinary actions). The essence of the Board’s written explanation


       5
       We also do not decide whether the Board’s decision to modify the ALJ’s sanction
recommendation directly implicates section 2001.058(e) of the APA. See supra n.3.

                                                8
is that the ALJ failed to properly “apply or interpret applicable law, agency rules, and written

policies” regarding sanctions. See 22 Tex. Admin. Code § 107.51(a)(1); Pierce, 212 S.W.3d at 752.

Therefore, even if the ALJ’s conclusion regarding the appropriate sanction implicates rule 107.51,

we conclude that the Board provided a specific reason and legal basis for its action and thus met the

rule’s requirements allowing for modification. Froemming’s first issue on appeal is overruled.


Substantial Evidence

               In his second issue on appeal, Froemming contends that because “there was

no evidence for the aforementioned rulings of the Agency, the only inference is that the Agency

ruling was either arbitrary or capricious or characterized by abuse of discretion or was a clearly

unwarranted exercise of discretion.”

               Under the Dental Practice Act, the legislature has delegated broad authority to the

Board to adopt and enforce rules necessary to ensure compliance with state laws relating to the

practice of dentistry and to protect public health and safety. Tex. Occ. Code Ann. § 254.001.

Further, the Board is vested with the authority and discretion to take disciplinary action, including

revocation or suspension of a license, if, among other things, a licensee practices dentistry in a

manner that constitutes dishonorable conduct or violates a law relating to the regulation of dentistry.

Id. § 263.002(a)(3), (10). By rule, the Board has provided that in any disciplinary proceeding it may

consider aggravating factors, such as harm to one or more patients, violation of a Board order, prior

similar violations, and previous disciplinary action by the Board. 22 Tex. Admin. Code § 107.203.

As a result, the Board has wide discretion to determine what constitutes an appropriate sanction in

individual contested cases. See also id. § 100.20 (2012) (State Bd. of Dental Exam’rs, Final Board

                                                  9
Decisions in Contested Cases) (“The Board welcomes recommendations of administrative law

judges as to the sanctions to be imposed, but the Board is not bound by such recommendations.”).

               According to the Board’s explanation, its decision to reject the ALJ’s sanction

recommendation was based on Froemming’s disciplinary history. Upon review of the record, we

conclude that Froemming’s disciplinary history, as summarized in the Board’s explanation, is

supported by and is consistent with the disciplinary history presented in the proposal for decision

and adopted by the Board. According to the proposal for decision, Froemming’s disciplinary history

“includes Agreed Settlement Orders between the Board and [Froemming] dated April 25, 1997;

August 23, 2002; October 31, 2003; and August 19, 2005. [Froemming] is currently on probation

until August 19, 2010.” Further, the ALJ found that one of the conditions of the Board’s 2005 order

was that Froemming would abide by the laws of the State of Texas, the Dental Practice Act, and

Board rules. Froemming has not challenged the Board’s findings with regard to his disciplinary

history and has failed to present any record of evidence suggesting that a lesser sanction was more

appropriate. In addition, the disciplinary history summarized in the Board’s order is consistent with

the Board’s remaining factual findings. See Granek, 172 S.W.3d at 781-82 (finding that Board’s

explanation for rejecting sanction violated section 2001.058(e) where explanation was not supported

by Board’s findings and several findings were contradictory to explanation).

               The Board’s explanation and summary of Froemming’s disciplinary history are also

supported by the evidence. The Board’s prior orders on disciplinary actions against Froemming were

admitted as exhibits at the hearing. These orders support and are consistent with the disciplinary

history presented in the Board’s explanation and demonstrate that, at the time of the hearing,



                                                 10
Froemming had been sanctioned four previous times for violations of the Dental Practice Act

and the Board’s rules. For example, according to the Board’s 2005 Agreed Settlement Order, the

Board found that in 2002 Froemming had “abandoned patient P.H. when he refused to continue

treatment due to a balance owed for services.” See 22 Tex. Admin. Code §§ 108.5, 108.7. Similarly,

the Board found that in 2004 Froemming had abandoned a patient and “acted dishonorably when he

refused to see or communicate with the patient at all due to a balance owing for services.” See id.

§ 108.5. Finally, according to the 2005 Agreed Settlement Order, in 2003 Froemming “fell below

the minimum standard of care in refusing to remove patient P.H.’s orthodontic appliances on request

and after completion of orthodontic treatment, until the patient purchased retainers.” See id. § 108.7.

This evidence supports the Board’s determination that, at the time of the hearing, Froemming was

on probation “for prior violations of a similar nature.”

               In conclusion, we find that the Board’s decision to modify the sanction recommendation

presented in conclusion of law number 7 was supported by substantial evidence. In addition, the

record fails to demonstrate that the Board exceeded its authority or was arbitrary or capricious in

determining that the ALJ had failed to “properly apply or interpret applicable law, agency rules, and

written policies” with regard to the appropriate sanction in this case. See Pierce, 212 S.W.3d at

753-54 (concluding that racing commission did not exceed its authority or abuse its discretion in

modifying ALJ recommendation as to penalty for horse racing violations). Froemming’s second

issue on appeal is overruled.6


       6
         To the extent the argument presented by Froemming in his second issue on appeal could
be construed as an argument that the Board’s findings of underlying fact or conclusions of law are

                                                  11
Due Process and Equal Protection

               In his final issue on appeal, Froemming asserts that the Board’s order denies

Froemming due process of law and the right to equal protection under the law, as guaranteed by the

federal and Texas constitutions, because “no evidence was ever presented [to] or considered by

the Board to revoke the license of Froemming.” To the extent that Froemming’s constitutional

arguments are premised on his assertion that the record does not support the Board’s decision to

modify the ALJ’s penalty recommendation, we have already determined that it does. Further,

because Froemming provides no supporting arguments, authorities, or citation to the record, this

argument is waived as inadequately briefed. See Tex. R. App. P. 38.1(I) (appellant’s brief must

contain clear and concise argument for contentions made, with appropriate citations to authorities

and to record). Froemming’s third issue on appeal is overruled.


                                          CONCLUSION

               Having disposed of all of Froemming’s issues on appeal, we affirm the trial court’s

judgment, upholding the Board’s order in full.




not supported by the record and thus they do not adequately support the Board’s decision to revoke
his license, we find that Froemming has failed to preserve this argument for appeal. Suburban
Utility Corp. v. Public. Util. Comm’n, 652 S.W.2d 358, 365 (Tex. 1983) (to preserve error as to
agency order, party’s complaint must be asserted in timely filed motion for rehearing and must be
sufficiently definite to provide agency notice of claimed error). For each contention of error, the
motion must set forth (1) the fact finding, legal conclusion, or ruling complained of and (2) the legal
basis for that complaint. See Hamamcy v. Texas State Bd. of Med. Exam’rs, 900 S.W.2d 423, 425
(Tex. App.—Austin 1995, writ denied). In his motion for rehearing, Froemming’s sole challenge
was to the Board’s decision to reject the ALJ’s sanction recommendation.

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                                         __________________________________________

                                         Diane M. Henson, Justice

Before Justices Puryear, Henson and Goodwin

Affirmed

Filed: June 1, 2012




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