      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-12-00560-CV



   The Texas State Board of Pharmacy, and in their official capacities only, Gay Dodson,
     Executive Director; and Jeanne D. Waggener, President of the Board, Appellants

                                                   v.

                                   Tiana Jean Witcher, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
         NO. D-1-GN-12-000026, HONORABLE TIM SULAK, JUDGE PRESIDING



                               DISSENTING OPINION


                The only issue in this appeal is the sanction imposed against appellee

Tiana Jean Witcher by the Texas State Board of Pharmacy. The Board’s sanction against

Witcher—suspending her Texas pharmacy license—was within the statutory range of punishment

and consistent with past precedent and expressed policy concerns. Nonetheless, the majority

concludes that the Board imposed the sanction based upon an invalid rule—a binding

“reciprocal-sanctions policy.” Because the record supports that the Board did not have a binding

policy and that it properly considered the facts and circumstances of this case, I respectfully dissent.

                Section 2001.003(6) of the government code defines a rule to mean a “state agency

statement of general applicability.” Tex. Gov’t Code Ann. § 2001.003(6) (West 2008). As the

majority recognizes, for an agency statement to be a rule, it must “bind the agency or otherwise

represent its authoritative position in matters that impact personal rights.” Texas Dep’t of Transp.
v. Sunset Transp., Inc., 357 S.W.3d 691, 703 (Tex. App.—Austin 2011, no pet.); see Slay v. Texas

Comm’n on Envtl. Quality, 351 S.W.3d 532, 546 (Tex. App.—Austin 2011, pet. denied) (noting that

“core concept [of rule] is that the agency statement must in itself have a binding effect on

private parties”).

                The majority concludes that the Board’s “previously articulated policy that a

pharmacist with an active suspension in another state cannot practice pharmacy in Texas” was an

invalid rule. The majority focuses on testimony by the Board’s director of enforcement at the

contested case hearing and the Board’s statements in its order concerning policy reasons for

imposing a reciprocal sanction against Witcher. At the hearing, the director relied upon a prior order

in which the Board imposed a reciprocal sanction of suspension based upon the disciplinary action

by another state’s board of pharmacy. See In re Nealy, Bd. Order #N-03-005, SOAH Docket

No. XXX-XX-XXXX (2005). In Nealy, the Board noted that, “[i]n previous cases with similar facts, the

Board has typically imposed disciplinary action mirroring the action by another state board of

pharmacy.” But the fact that the Board has “typically imposed” a mirror sanction when faced with

disciplinary action by another state board does not foreclose the Board from imposing a different

sanction within its discretion depending on the facts and circumstances of a particular case. See Slay,

351 S.W.3d at 546.

                In the context of an agency’s written policy “setting forth an elaborate methodology

for applying statutory criteria” to determine administrative penalties, this Court has explained the

difference between a non-binding guideline and a rule. Id. at 538. In that case, we concluded that

the district court did not err in determining that the “Penalty Policy” at issue was not a rule. Id. at



                                                  2
548. We explained: “[W]hat ultimately matters is that the district court also had evidence to the

effect that the [agency] commissioners were not bound to follow the Penalty Policy’s methodology

when exercising their legislatively conferred discretion to impose penalties.” Id. at 546 (emphasis

in original); see also Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 443 (Tex. 1994) (“Not every

statement by an administrative agency is a rule.”); Texas Mut. Ins. Co. v. Vista Cmty. Med. Ctr., LLP,

275 S.W.3d 538, 555 (Tex. App.—Austin 2008, pet. denied) (noting it is “well-established that not

every administrative pronouncement is a rule”); Brinkley v. Texas Lottery Comm’n, 986 S.W.2d 764,

769 (Tex. App.—Austin 1999, no pet.) (observing that agencies routinely issue documents such as

guidelines “which might contain statements that intrinsically implement, interpret, or prescribe law,

policy, or procedure or practice requirements” that are not rules).

                 Here, the district court had evidence that the Board was not bound to impose a

sanction of suspension. The Board’s own conduct demonstrated that it was not bound to apply a

reciprocal sanction but that it did so within its discretion and consistent with prior decisions

addressing similar facts. See Tex. Occ. Code Ann. § 565.051(1) (West 2012) (board “may” “suspend

the person’s license”); 22 Tex. Admin. Code § 281.60 (2012) (Texas State Bd. of Pharmacy, General

Guidance)1; Pierce v. Texas Racing Comm’n, 212 S.W.3d 745, 754, 757 (Tex. App.—Austin 2006,


       1
           Section 281.60 states in relevant part:

       (a)       This subchapter is promulgated to:

                 (1)     promote consistency and guidance in the exercise of the sound
                         discretion by the agency in licensure and disciplinary matters; . . .

       (b)       Board’s role. The board shall render the final decision in a contested case
                 and has the responsibility to assess sanctions against licensees who are found

                                                     3
pet. denied) (noting that “[p]olicy considerations . . . are the reason that the Commission is granted

discretion over what penalties should be imposed for racing violations” and upholding penalty that

“followed its guidelines” and “decade of precedent”); see also Austin Chevrolet, Inc. v. Motor

Vehicle Bd., 212 S.W.3d 425, 438 (Tex. App.—Austin 2006, pet. denied) (noting that “a licensing

authority acts arbitrarily and unlawfully if it treats similarly situated applicants differently without

an articulated justification”). The sole purpose of the contested case hearing was to determine the

appropriate sanction. It was undisputed that Witcher’s license was suspended in North Carolina, and

she did not challenge the process or procedure in North Carolina that resulted in the suspension. If

the board was “duty-bound” to suspend Witcher’s license because her North Carolina license was

suspended, as the majority suggests, why have the hearing? Why admit evidence at the hearing

concerning the facts and circumstances of Witcher’s particular case?

                The Board’s conclusions of law recognized that it did not have a binding policy that

dictated the sanction of suspension against Witcher. The Board concluded that it “[did] not have a

written policy or rule requiring that a pharmacist be prevented from practicing in Texas until the

pharmacist resolves restrictions on her license in another state.” Similarly, at the open meeting




                to have violated the Act. . . . A sanction should be consistent with sanctions
                imposed in other similar cases and should reflect the board’s determination
                of the seriousness of the violation and the sanction required to deter future
                violations. A determination of the appropriate sanction is reserved to the
                board. . . .

22 Tex. Admin. Code § 281.60 (2012) (Texas State Bd. of Pharmacy, General Guidance)
(emphasis added).

                                                   4
where the Administrative Law Judge’s proposal for decision was considered, the Board’s

representative stated:


       There is not a policy that requires you to suspend when somebody is suspended in
       another state. However, suspension is an option. And so what you have to do is look
       at the facts - - the findings of fact in this case and decide based upon everything that
       the Judge found, based upon her impairment, based on her management of that
       impairment, based upon her status in North Carolina what of your disciplinary
       options do you think is the appropriate option. And I’ve given you the arguments
       why I believe that it should be suspension and why we should look at what the other
       state did. But, no, there’s not a policy that requires you to suspend and that’s not
       what I’m asserting; but there is no need to have a policy on the flip side. It’s not
       required that you have a policy that says what you do in these situations.


In contrast to the majority’s conclusion that the Board’s “reciprocal-sanctions policy” was a “bright-

line rule that is applicable without regard to individual circumstances,” the Board’s representative

made clear to the Board that the appropriate sanction for Witcher was within the Board’s

discretion— not a foregone conclusion—and then argued for suspension based upon policy reasons.

See Fay-Ray Corp. v. Texas Alcoholic Beverage Comm’n, 959 S.W.2d 362, 369 (Tex. App.—Austin

1998, no pet.) (upholding revocation of permit and noting that “an agency has broad discretion in

determining which sanction best serves the statutory policies committed to the agency’s oversight”);

Sears v. Texas State Bd. of Dental Exam’rs, 759 S.W.2d 748, 751 (Tex. App.—Austin 1988, no pet.)

(“[T]he choice of penalty is vested in the agency, not in the courts.”).

               Further, unlike the agency statements that were found to be rules in the cases cited

by the majority, the agency statements at issue here were made during contested case hearings in the

context of determining the appropriate sanction against an individual. Compare El Paso Hosp. Dist.

v. Texas Health & Human Servs. Comm’n, 247 S.W.3d 709, 711–12 (Tex. 2008) (concluding that

                                                  5
agency’s “data-collection method for calculating prospective Medicaid inpatient service rates” was

rule in suit for declaratory relief); Combs v. Entertainment Publ’ns, Inc., 292 S.W.3d 712, 715 (Tex.

App.—Austin 2009, no pet.) (concluding legal interpretations in letters sent by Comptroller were

rules in suit for declaratory and injunctive relief), with Railroad Comm’n of Tex. v. WBD Oil & Gas

Co., 104 S.W.3d 69, 70, 79 (Tex. 2003) (concluding that “field rules” were not rules of “general

applicability” and noting that APA definition of rule “does not reference statements made in

determining individual rights”).

               Because I would conclude that the Board did not act based upon an invalid rule and

that it considered the facts and circumstances of Witcher’s case and then acted well within its

discretion to impose the sanction of license suspension, I would affirm the order of the Board and

reverse the trial court’s judgment.2



                                       __________________________________________

                                       Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Goodwin and Field

Filed: May 3, 2013




       2
          I also disagree with the majority’s suggestion that, even if the Board’s decision was not
based upon an invalid rule, that its decision would be arbitrary and capricious. According to her own
testimony, Witcher had no plans to return to North Carolina to practice pharmacy in North Carolina,
or otherwise clear the North Carolina suspension because of lack of financial resources. I question
whether a licensing board would be acting arbitrarily or capriciously by refusing to excuse
compliance with another state’s unchallenged sanction based upon the licensee’s lack of
financial resources.

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