            TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-02-00510-CV



                                   Robert S. Bell, M.D., Appellant

                                                    v.

      Texas Workers Compensation Commission and Richard F. Reynolds in his official
             capacity as Executive Director of Texas Workers Compensation
                                 Commission, Appellees




        FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
           NO. GN-201971, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING



                                             OPINION


                 This is an interlocutory appeal from a denial of a temporary injunction.1 Some eighty-five

percent of Robert S. Bell, M.D.=s orthopedic surgery practice involves workers compensation patients. Dr.

Bell sued the Texas Workers Compensation Commission (ACommission@) because it removed him from its

list of approved doctors when his license to practice medicine was revoked as a result of a felony

conviction. Removal from the list means Dr. Bell cannot treat patients covered by workers compensation

insurance. Dr. Bell and another similarly situated physician2 brought suit against the Commission asserting



        1
            See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(4) (West 1997).
        2
           Booker T. Rogers, Jr., M.D. is an anesthesiologist who was also deleted from the list of
approved doctors because his medical license was suspended. He pleaded nolo contendere to charges of
child pornography and admitted to drug abuse. He received deferred adjudication for the criminal charges
that their rights to due process of law under the United States and Texas Constitutions were violated when

they were deleted from the list of approved doctors without an administrative hearing. After obtaining a

temporary restraining order, the doctors sought a temporary injunction prohibiting the Commission from

removing them from the approved list while this suit for declaratory relief is pending. Their application was

denied, and Dr. Bell alone appeals. We will affirm the trial court=s denial of a temporary injunction.


                        FACTUAL AND PROCEDURAL BACKGROUND

                On October 18, 1999, Dr. Bell pleaded nolo contendere to a third-degree felony of

deadly conduct. The conviction arose from Dr. Bell driving by his former business partner=s home and firing

several rounds from his 9-mm semi-automatic pistol into the home while the former business partner=sfamily

was present. Dr. Bell also admitted to four other drive-by shootings. Punishment was assessed at one

hundred twenty days in jail and eight years of maximum-supervision probation, with conditions that he

perform six hundred hours of community service, pay a five thousand dollar fine and restitution, and undergo

psychiatric counseling for three years.




and his license suspension was probated for five years by the State Board of Medical Examiners. Dr.
Rogers did not appeal the trial court=s denial of his request for a temporary injunction.




                                                     2
                  On August 26, 2000, the State Board of Medical Examiners and Dr. Bell entered into an

agreed order that found Dr. Bell guilty of unprofessional or dishonorable conduct likely to deceive, defraud,

or injure the public, specifically the felony offense of deadly conduct.3 Dr. Bell=s license to practice

medicine was suspended, but the suspension was stayed and he was placed on probation for five years.

                  On May 6, 2002, the Commission sent Dr. Bell written notice that he was to be removed

from the list of approved doctors pursuant to the workers compensation act. Section 408.0231(a)(3) of the

act requires the Commission to delete from its list any doctor Awhose license to practice in this state is

revoked, suspended, or not renewed by the appropriate licensing authority.@ Tex. Lab. Code Ann. '

408.0231(a)(3) (West Supp. 2003). The Commission=s administrative rule 180.26(b)(4) requires deletion

for Asuspensions or revocations that are stayed, deferred, or probated and voluntary relinquishment of the

license to practice.@ 28 Tex. Admin. Code ' 180.26(b)(4) (2002).

                  Dr. Bell responded to the notice by objecting to his deletion from the approved list and

requesting a Aprogressive disciplinary agreement.@ Dr. Bell described himself as a Asanctionee.@ On May

23, 2002, Dr. Bell requested an administrative hearing. On May 30, the Commission advised Dr. Bell that

he was not entitled to an administrative hearing under the workers compensation act or the Commission=s

rules. The letter also advised Dr. Bell that he could apply for reinstatement to the list if Ahe had all

appropriate unrestricted licenses/certifications, [and] had overcome the conditions which resulted in the

deletion.@


        3
             See Medical Practices Act, Tex. Occ. Code Ann. ' 164.052(a)(5) (West 2003).


                                                     3
                Dr. Bell contends that the trial court abused its discretion by denying the temporary

injunction because the evidence shows his probable right to recovery and the irreparable harm he will

sustain if it is not granted. He argues that his right to treat injured workers in the workers compensation

system is a constitutionally-protected property right that he has been deprived of without due process. He

argues that (1) section 408.0231 of the workers compensation act contains an implied right to an

administrative hearing; and (2) the Commission is not relieved of its obligation to conduct a hearing merely

because he had a right to a hearing prior to the Board of Medical Examiners suspending his license.


                                              DISCUSSION

Standard of Review

                The purpose of a temporary injunction is to preserve the status quo pending trial on the

merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). It is an extraordinary remedy that

is not issued as a matter of right, but is committed to the broad discretion of the trial court. Id.; see also

State v. Ruiz Wholesale Co., 901 S.W.2d 772, 777 (Tex. App.CAustin 1995, no writ). An applicant for




                                                      4
a temporary injunction must show: (1) a cause of action; (2) a probable right to the relief requested;4 and (3)

imminent, irreparable harm in the interim.5 Butnaru, 84 S.W.3d at 204.




        4
          An applicant for a temporary injunction need not prove that he or she will prevail at trial; rather
the burden is to show a probable right to recovery following a trial on the merits. Walling v. Metcalfe, 863
S.W.2d 56, 58 (Tex. 1993); Universal Health Servs. v. Thompson, 24 S.W.3d 570, 576 (Tex.
App.CAustin 2000, no pet.).
        5
         An irreparable injury is one that Acannot be adequately compensated in damages or if the
damages cannot be measured by any certain pecuniary standard.@ Butnaru v. Ford Motor Co., 84
S.W.3d 198, 204 (Tex. 2002).




                                                      5
                 We review the denial of a temporary injunction by asking whether the trial court clearly

abused its discretion. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993); Davis v. Huey, 571

S.W.2d 859, 861-62 (Tex. 1978). We are not to examine the merits of the pending lawsuit, Universal

Health Servs. v. Thompson, 24 S.W.3d 570, 576 (Tex. App.CAustin 2000, no pet.); Board of Pardons

& Paroles v. Graham, 878 S.W.2d 684, 686 (Tex. App.CAustin 1994, no writ); rather our task is to

determine whether the court=s ruling was so arbitrary that it exceeded the bounds of reasonable discretion.

Thompson, 24 S.W.3d at 576; LeFauchuer v. Williams, 807 S.W.2d 20, 22 (Tex. App.CAustin 1991,

no writ). We review the evidence in the light most favorable to the trial court=s order and will not reverse if

the record contains evidence that reasonably supports the trial court=s decision. Thompson, 24 S.W.3d at

576.


Mandatory Removal of Doctor

                 The Commission maintains a list of licensed doctors who are approved to provide health

care services to injured workers covered by workers compensation insurance. Tex. Lab. Code Ann. '

408.023(a) (West Supp. 2003). In recent years, the legislature has greatly expanded the Commission=s

obligations to address the quality of care provided by doctors participating in the workers compensation

system. In 2001, it added a directive that the executive director Ashall delete from the list of approved

doctors a doctor . . . whose license to practice in this state is revoked, suspended, or not renewed by the

appropriate licensing authority.@     Id. ' 408.0231(a)(3). Furthermore, the legislature authorized the




                                                      6
Commission to establish rules setting forth criteria for Adeleting or suspending a doctor from the list of

approved doctors.@ Id. ' 408.0231(b)(1).




                 Administrative rule 180.27(f) prescribes the process the Commission must follow to delete

a doctor=s name from the approved list.6 The doctor is notified of the impending deletion and the grounds



        6
            Subsection 180.27(f) provides in full:

            (f) Notwithstanding any other provision of this section, deletion from the Approved
                Doctor List by the Executive Director pursuant to ' 180.26(b) shall be governed
                by this subsection.

                (1) Prior to deletion, the Executive Director or designee shall notify a doctor of
                    the intention to delete the doctor and the grounds for that action.

                (2) Within 14 days after receiving the notice of intent, a doctor may file a
                    response to the reasons given as grounds for the deletion with the Executive
                    Director or designee.

                      (A) If a response is not received by the 15th day after the date the doctor
                          received the notice of intent, the doctor is deleted and no subsequent
                          notice will be sent.

                      (B) If the response is agreement, the doctor will be deleted effective on the
                          earlier of the date the doctor agrees to the deletion or the 15th day after
                          the date the doctor received the notice of intent and no subsequent
                          notice will be sent.

                      (C) If a response which disagrees with the grounds for deletion is timely
                          received and after reviewing the response, the Executive Director or
                          designee determines:


                                                       7
for that action, and is given fourteen days to contest the validity of those grounds. This procedure provides

notice and an opportunity to be heard, but limits the scrutiny to an objective determination about whether

the mandatory grounds for deletion exist.

                  It is conclusively established in this record that Dr. Bell (1) was removed from the approved

list of doctors under rule 180.26(b); (2) received notice of the Commission=s intent to remove him and its

asserted grounds; and (3) responded in writing and requested a hearing, but did not contest the existence of

the grounds for mandatory removal.


Implied Right to a Hearing

                  Dr. Bell raises only procedural due process claims on appeal, arguing that the Commission

violated his constitutional right to due process and due course of law7 by removing him from the list of



            (i) that the grounds do not exist for deletion under ' 180.26(b), the doctor shall be
                notified that he was not deleted under ' 180.26(b); or

            (ii) that the grounds for deletion do exist, the doctor shall be notified of the deletion
                 and the notice shall identify the effective date of the deletion.

                 (3) All notices under this subsection shall be delivered by verifiable means.

28 Tex. Admin. Code ' 180.27(f) (2002).
        7
          It is well settled that although the due process clause of the Fourteenth Amendment and the due
course of law provision of the Texas Constitution differ in their language, the differences Aare without
meaningful distinction.@ University of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995)
(quoting Mellinger v. City of Houston, 3 S.W. 249, 252-53 (Tex. 1887)). In matters of procedural due
process, Texas courts traditionally follow federal due process interpretations and consider federal decisions
on these matters persuasive authority. Id. at 929; Limon v. State, 947 S.W.2d 620, 626 n.6 (Tex.
App.CAustin 1997, no pet.).


                                                       8
approved doctors without affording him a meaningful opportunity to contest the Commission=s action. The

only question before us in this interlocutory appeal is whether the trial court clearly abused its discretion in

denying the temporary injunction. After evaluating Dr. Bell=s probable right to recovery on his claim that the

act implies a full administrative hearing before he can be removed from the list, we hold that the trial court

was within its discretion in denying the temporary injunction.

                 Questions of procedural due process require an analysis of (1) whether the plaintiff has a

constitutionally protected property or liberty interest at stake, and (2) if so, what process is due to

sufficiently protect that interest. See Board of Regents of State Colls. v. Roth, 408 U.S. 564, 569-70

(1972). At a minimum, due process requires notice and an opportunity to be heard at a meaningful time and

in a meaningful manner. Matthews v. Eldridge, 424 U.S. 319, 333 (1976); Perry v. Del Rio, 67 S.W.3d

85, 92 (Tex. 2001); University of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 930 (Tex. 1995).

                 Exactly what process is due in a given situation is measured by a flexible standard that

depends on the practical requirements of the circumstances. Matthews, 424 U.S. at 334; Than, 901

S.W.2d at 930. The flexible standard balances three factors: (1) the private interest affected by the state

action; (2) the risk of erroneous deprivation of a constitutionally protected interest under the procedures

used and the likely benefit of any additional procedures; and (3) the government=s interest, including the

fiscal and administrative burdens that additional procedural requirements would entail. Matthews, 424 U.S.

at 335; Than, 901 S.W.2d at 930.

                 We address the first factor by noting that the constitutional right asserted by Dr. Bell is the

right to treat injured workers covered by workers compensation insurance, not the right to practice


                                                       9
medicine. Without deciding whether there is a constitutionally protected interest in the right he asserts, we

distinguish his claimed right from the established right to due process before removal of a professional

license. Cf. Francisco v. Board of Dental Exam=rs, 149 S.W.2d 619, 622 (Tex. Civ. App.CAustin

1941, writ ref=d); Waller v. State, 68 S.W.2d 601, 605 (Tex. Civ. App.CAmarillo 1934, writ ref=d). We

address the third factor by noting that the state has a considerable interest in regulating the quality of medical

care offered to injured workers in the highly regulated workers compensation system. To this end, the

legislature had delegated to the Commission the duty to scrutinize its list of approved doctors and to

remove, without further consideration, any doctor whose license has been suspended. Tex. Lab. Code

Ann. ' 408.0231(a)(3), (b). We will now address the likely benefit of the additional administrative hearing

Dr. Bell believes is implied by section 408.0231(a)(3).

                 Pursuant to rule 180.27(f)(2), Dr. Bell received notice of the Commission=s intent to delete

him from its approved list and the grounds for removal. The rule provides a fourteen-day period in which a

doctor may contest removal; however, the contest is limited to whether grounds exist for mandatory

deletion under rule 180.26(b). In Dr. Bell=s case, his contest could only address whether his license had

been revoked by the Medical Board. A license revocation triggers automatic removal of a doctor from the

approved list. See 28 Tex. Admin. Code ' 180.27(f)(2)(C)(i). A doctor=s license has either been revoked

or it has not. Dr. Bell did not contest the grounds for mandatory deletion. Instead, he wanted a hearing to

protest the mandatory nature of the removal and to negotiate instead a Aprogressive disciplinary agreement.@

Dr. Bell argues that the supreme court=s opinion in Industrial Accident Board v. O=Dowd, 303 S.W.2d

763, 767 (Tex. 1957) compels this Court to interpret section 408.0231(a)(3) as implying his right to such a


                                                       10
hearing. His request for a hearing and his suggestion that a hearing is implied ignores the mandate imposed

by the statutory language: the executive director shall delete from the list of approved doctors a doctor

whose license has been suspended or revoked. Tex. Lab. Code Ann. ' 408.0231(a)(3).

                In O=Dowd, two attorneys were alleged to have engaged in unethical and fraudulent conduct

in connection with their handling of workers compensation cases before the Industrial Accident Board

(AIAB@).8 The relevant statute provided for a three-year suspension of anyone found guilty of unethical or

fraudulent conduct in matters within the IAB=s purview. The IAB had the discretion to determine if there

had been such conduct. The statute was silent about whether the attorneys were to receive notice and a

hearing before they were suspended for three years.9 Nevertheless, the IAB provided the two attorneys

with notice and a full administrative hearing before finding them guilty of unethical and fraudulent conduct

and barring them from practice. The attorneys challenged the constitutionality of the statute because it did

not expressly provide for prior notice and a hearing, even though they were accorded both.




        8
       The Industrial Accident Board was the administrative predecessor of the current Texas Workers
Compensation Commission.
        9
          Today, section 408.0231(b) of the workers compensation act delegates to the Commission the
task of Aestablish[ing] criteria@ for deleting or suspending doctors from the approved list. Tex. Lab. Code
Ann. ' 408.0231(b)(1) (West Supp. 2003).




                                                    11
                In light of its duty to construe statutes in harmony with constitutional requirements if

possible, the court determined that the statute provided for notice and a hearing by implication, as the IAB

had interpreted. Id. at 765-67. The nature of the Aadjudication@ in O=Dowd was entirely different than that

required of the Commission by section 408.0231 or rule 180.27(f) in this appeal. The IAB in O=Dowd

investigated and adjudicated allegations of fraudulent conduct by the two attorneys involved. The statute

afforded the IAB discretion to remove the attorneys after adjudicating the allegations against them.

O=Dowd stands only for the proposition that if a statute does not expressly rule out a hearing, it is error to

hold that statute invalid when the agency has implied into the statute the requirement of notice and a hearing

                By contrast, section 408.0231(a)(3) mandates a doctor=s removal from the approved list

upon certain objective grounds and authorizes the Commission to promulgate rules governing such

removals. The Commission=s rules provide for notice and the right to contest the validity of the grounds for

removal. Nothing in the statute affords any discretion to the executive director about removing a doctor

whose license has been suspended.

                The Board of Medical Examiners either revoked Dr. Bell=s license to practice medicine or it

did not. That is the only fact to be determined before Dr. Bell must be removed under section

408.0231(a)(3) and rule 180.26(b).

                Due process does not require the holding of a useless hearing when there are no factual

disputes to resolve. See Gilbert v. Homar, 520 U.S. 924, 933 (1997) (A[T]here is no need for any

presuspension process since there would be nothing to consider at the hearing except the independently

verifiable fact of whether an employee had indeed been formally charged with a felony.@); Limon v. State,


                                                     12
947 S.W.2d 620, 627 (Tex. App.CAustin 1997, no pet.) (AWe note that a hearing on an applicant=s failure

to post a bond would seem to us to be meaningless; a bond is either posted or it is not.@).10

                 Due process requires only a procedure that assures Dr. Bell that the Commission=s action is

not baseless or unwarranted. The Board of Medical Examiners afforded Dr. Bell the process he was due

before his license was suspended. The procedure he was accorded before the Commission was sufficient

to allow him to contest the objective criteria for his deletion from the approved list. His removal was neither

baseless nor unwarranted. Implying a right to a full-blown hearing would not be of benefit considering the

mandatory nature of the statute=s directive to remove from the approved list a doctor whose license has

been suspended.

                 We hold that Dr. Bell has not established a probable right to recovery sufficient to show that

the trial court abused its discretion by denying his request for a temporary injunction.


                                              CONCLUSION

                 For the reasons set forth, we affirm the denial of the temporary injunction.




        10
              See also City of Alamo v. Garcia, 960 S.W.2d 221, 226 n.1 (Tex. App.CCorpus Christi
1997, no pet.) (holding that under automatic forfeiture provision, only occurrence of disqualifying event
itself, not reasons therefor, are relevant to whether forfeiture provision applied); Alvin v. Suzuki, 227 F.3d
107, 121 (3d Cir. 2000) (AThere was simply no factual dispute that a pre-deprivation notice or hearing
could have addressed.@).




                                                      13
                                              Bea Ann Smith, Justice

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

Affirmed

Filed: March 20, 2003




                                                 14
