                                                                               ACCEPTED
                                                                          03-14-00644-CV
                                                                                 4872647
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                     4/13/2015 8:46:24 PM
                                                                        JEFFREY D. KYLE
                                                                                   CLERK
                           No. 03-14-00644-CV

                                                         FILED IN
                                                  3rd COURT OF APPEALS
__________________________________________________________________
                                                      AUSTIN, TEXAS
                                                  4/13/2015 8:46:24 PM
                 IN THE THIRD COURT OF APPEALS JEFFREY D. KYLE
                          AUSTIN, TEXAS                   Clerk




                             JOSE A. PEREZ

                                 Appellant

                                    Vs.

TEXAS MEDICAL BOARD and MARI ROBINSON JD, in her Official Capacity

                                Appellees.



                Appeal from the 53rd Judicial District Court
                          Travis County , Texas


                         Appellant’s Reply Brief




                               Jose A. Perez
                           34 Candle Pine Place
                        The Woodlands, TX 77381
                        theaesculapius@gmail.com
                              281-673-0452

                          Oral Argument Waived
                        Identity of Parties and Counsel

Appellant/Plaintiff

  Jose A. Perez, Proceeding pro se

Appellees/Defendants

  Texas Medical Board

  Mari Robinson, executive director, in her Official Capacity

Counsel for Appellees

Ted A Ross, Esq
Assistant Attorney General
PO Box 12548
Austin, TX 78711-2548
                                           TABLE OF CONTENTS


Identity of Parties and Counsel..................................................................................2

Table of Contents.......................................................................................................3

Index of Authorities...................................................................................................3

Summary of the Argument ......................................................................................7

Argument .................................................................................................................8

Prayer ......................................................................................................................18

Certificate of Service ..............................................................................................18

Tex R. App. P. 9.4(i)(3) Certificate of Compliance………………………………18

                                              Index Of Authorities

                                                          Cases

Amarillo Oil Co. v. Energy-Agri Prods., Inc.,
 794 S.W.2d 20, 26 (Tex. 1990)…………………………………………………16

Aguilar v. Frias,
 366 SW 3d 271, 273 (Tex. App.—El Paso 2012, pet. denied)…………………17

A.R. Logan v. The State,
5 Texas Court Of Appeals 306 (Tyler-1878)……………………………………..14

California Utilities Commission v. United States,
355 U.S. 534, 540, 2 L. Ed. 2d 470, 78 S. Ct. 446 (1958)………………………..11

Chandler v. Miller,
 520 U. S. 305, 308 (1997)………………………………………………………13
City of Beaumont v. Bouillion,
 896 S.W.2d 143, 148 (Tex. 1995)………………………………………………15

Cox v. Robison,
 150 S.W. 1149, 1151 (Tex. 1912)………………………………………………14

Damico v. California,
 389 U.S. 416, 19 L. Ed. 2d 647 , 88 S. Ct. 526 (1967)(per curiam)…………….16

ElderCare Properties, Inc. v. Texas Department of Human Services,
  63 S.W.3d 551 (Tex. App. Dist.3 12/06/2001)…………………………………11

Hamilton v Washington,
 NO. 03-11-00594-CV (3rd DCA - December 23, 2014)………………………...17

Jones v. Ross,
  173 S.W.2d 1022, 1024 (Tex. 1943)……………………………………………15

Kentucky v. Graham,
 473 U.S. 159, 165 (1985)……………………………………………………….17

Gutierrez vs. Portfolio Recovery Associates, LLC,
 NO. 03-13-00311-CV (3rd DCA- February 26, 2015)…………………………...9

McNeese v. Board of Educ., Community Unit Sch. Dist. 187, 373 U.S. 668, 670-
71, 10 L.Ed.2d 622, 83 S.Ct. 1433, (1963)………………………………………..16

Newman v. Bryan,
 06-13-00063-CV (Tex.App. Dist.6 10/09/2013)………………………………..17

Railroad Commission of Tex. v. WBD Oil & Gas Co.,
  104 S.W.3d 69 (Tex. 2003)…………………………………………………….10

Republican Party of Texas v. Dietz,
 940 S.W.2d 86, 91 (Tex. 1997)…………………………………………………14

Rodriguez v. Service Lloyds Ins. Co.,
 997 S.W.2d 248 (Tex. 1999)……………………………………………………10
Satterfield v. Crown Cork & Seal Co., Inc.,
 268 S.W.3d 190 (Tex.App. Dist.3 08/29/2008)…………………………………15

Scott v. Texas State Board of Medical Examiners,
 384 S.W.2d 686, 690 (Tex. Sup. Ct - 1964)……………………………………12

Schulz v. Schulz,
 726 S.W.2d 256, 258 (Tex. App.--Austin 1987, no writ)………………………...9

State v. Holland,
221 S.W.3d 639, 643 (Tex. 2007)………………………………………………17

Southern Ohio Coal Co. v. Donovan,
 774 F.2d 693 (6th Cir. 10/02/1985) …………………………………………….11

Scott v. Texas State Board of Medical Examiners,
 384 S.W.2d 686, 690 (Tex. Sup. Ct - 1964) …………………………………...12

Spann v. City of Dallas,
  111 Tex. 350, 235 SW 513, 514 (1921)………………………………………12

Tatro v. Texas,
 703 F.2d 823 (5th Cir. 04/25/1983)……………………………………………..18

Travelers Ins. Co. v. Marshall,
  76 S.W.2d 1007, 1011-12 (Tex. 1934)…………………………………………15

Texas Department of Insurance v. Reconveyance Services, Inc.
306 S.W.3d 256 (Tex. 2010)……………………………………………………..11

Texas Education Agency v Cypress Fairbanks,
830 S.W.2d 88 (May 6, 1992) …………………………………………………...16

Texas State Board of Pharmacy v. Witcher,
  447 S.W.3d 520 (3rd DCA - October 31, 2014)………………………………10

The State v James A. Goldman,
  44 Tex. 104 (1875)…………………………………………………………….12
Thomas v. Long,
207 SW 3d 334, 340 (Tex-2006)…………………………………………………17

WBD Oil & Gas Company v. Railroad Commission of Texas,
 35 S.W.3d 34, 35 S.W.3d 34 (Tex.App. 02/04/1999) ………………………….16

Westheimer ISD v. Brockette,
 567 SW 2d 780 , 785 (Tex. 1978)………………………………………………..9

Williams v. Castleman,
 247 S.W. 263, 265 (Tex. 1922)…………………………………………………14

World Co. v. Dow,
 116 Tex. 146, 287 S.W. 241, 243 (Tex. Comm'n App.1926, opinion adopted)….9

US Constitution

   Fourth Amendment…………………………………………………………...13

US Statutes

  42 USC 1983…………………………………………………………………...17

Texas Constitution

  Article XVI, Section 31……………………………………………………13, 14

  art. I, § 2………………………………………………………………………...14

Texas Statutes

   ultra vires act………………………………………………………………….17

  Tex.Rev.Civ.Stat.Ann. art. 4495b § 3.07(i)
  (Vernon Supp. 1982-1983)…………………………………………………….12


Texas Rules of Civil Procedure

  Tex. R. Civ. P. 45……………………………………………………………….9
  Tex. R. Civ. P. 47……………………………………………………………….9

Miscellaneous

  Black's Law Dictionary 311 (6th ed. 1990)…………………………………….14

 Kenneth C. Davis, Administrative Law Treatise § 19.01, at 373 (1972)……….16

 Separation of Powers under the Texas Constitution , Texas Law Review, Vol 68,
#7, June 1990, by Harold H. Bruff, Esq, Law Professor, University of Texas…...15


                 STATEMENT REGARDING ORAL ARGUMENT

                            Mr. Perez waives Oral Argument .

                          SUMMARY OF THE ARGUMENT

         (a) Mr, Perez pled in his initial complaint at the trial court the validity of

            the TMB Rule which purportedly allows the agency to revoke – by

            default – the right to work as a physician assistant;

         (b) Mr. Perez did not waive his right to confront and cross examine

            witness witnesses by merely seeking a declaratory judgment;

         (c) Mr. Perez has a constitutional and common law right to have the

            Constitution applied as intended by the voters in 1876;

         (d) The doctrine of exclusive jurisdiction does not apply where, as here,

            a party asserts constitutional claims and the administrative agency has

            entered a final decision;

         (e) Dismissal with prejudice was improper
             (f) Mr. Perez leave to amend argument in order to add Mari Robinson , in

                 her individual capacity, is meritorious’

                                             ARGUMENT

                                                      I

                          MR. PEREZ PLED THE VALIDITY
                     OF THE TMB RULE WHICH PURPORTEDLY
                  ALLOWS THE AGENCY TO REVOKE - BY DEFAULT –
                   THE RIGHT TO WORK AS PHYSICIAN ASSISTANT

                In their brief , the Appellees claim that Mr. Perez did not plead an

            APA Rule challenge in his Petition for judicial review1. Mr. Perez

            objects.

                 The Appellee’s assertion lacks candor. Mr. Perez ENTIRE

            COMPLAINT was devoted to the issue of the Constitutional and

            statutory authority of the TMB to revoke Mr. Perez’ right to earn a

            livelihood either at the State Office of Administrative Hearings or by

            default.

                Mr. Perez challenged the TMB’s purported authority to enter an

            administrative default judgment since Mr. Perez had previously filed an

            answer2. The Appellees did not and could not, explain how the TMB has

            the authority to enter default judgments against a litigant who had


1
    Appellees’ Brief in Response to Appellant’s Amended Initial Brief , Issue IV, page 6
2
    ROA Vol 1 of 2, pp 21 FN 36, p 44
         previously filed an answer given the fact that Texas jurisprudence has

         nullified the practice since, at least, 19263.

             Mr. Perez also objected because the TMB purportedly has the authority

         to determine if Mr. Perez’ defenses are meritorious, within the meaning

         of the Craddock Test4, even though it is not supposed to have the

         authority to enter declaratory judgments5.

             As stated in Mr. Perez initial Amended Appellate Brief6 on or about

         March 7th, 20147 the Appellees engaged in ad hoc rulemaking.

             Texas follows a fair notice standard for pleading, in which courts

         assess the sufficiency of pleadings by determining whether an opposing

         party can ascertain from the pleading the nature, basic issues, and the type

         of evidence that might be relevant to the controversy8. A petition is

         sufficient if it gives fair and adequate notice of the facts upon which the

         pleader bases his claim9.

             The purpose of this rule is to give the opposing party information



3
  Schulz v. Schulz, 726 S.W.2d 256, 258 (Tex. App.--Austin 1987, no writ); World Co. v.
Dow, 116 Tex. 146, 287 S.W. 241, 243 (Tex. Comm'n App.1926, opinion adopted)
4
  ROA Vol 1 of 2 , p 18
5
  Westheimer ISD v. Brockette, 567 SW 2d 780 , 785 (Tex. 1978).
6
  Appellant’s Initial Appellate Brief , pp 32-41, Issue III
7
  ROA Vol 2 of 2 pp 70-73
8
  Gutierrez vs. Portfolio Recovery Associates, LLC, NO. 03-13-00311-CV (3rd DCA- February
26, 2015) citing Tex. R. Civ. P. 45 and 47
9
  id
          sufficient to enable him to prepare a defense, accordingly, a plaintiff is not

          required to "set out in his pleadings the evidence upon which he relies to

          establish his asserted cause of action10. Furthermore, where, as here, the

          party opponent did not file special exceptions, a petition should be

          construed liberally in favor of the pleader11.

             Mr. Perez respectfully submits that the Third District Court of Appeals

          has authorized litigants to properly challenge the TMB rule which

          purportedly allows the agency to revoke the right to work in a profession,

          without cause, pursuant to the agency’s alleged “default proceedings”,

          please see the Texas State Board of Pharmacy v. Witcher, 447 S.W.3d

          520 (3rd DCA - October 31, 2014) citing Rodriguez v. Service Lloyds Ins.

          Co., 997 S.W.2d 248 (Tex. 1999) and Railroad Commission of Tex. v.

          WBD Oil & Gas Co., 104 S.W.3d 69 (Tex. 2003).

             As in Witcher, supra, Mr. Perez did use contested-case procedures to

          challenge the Board's ad hoc rule. He timely filed a motion for rehearing

          with the Board, complaining of the rule. When that was overruled, he

          timely filed a suit for judicial review, again complaining of the rule.

             But, assuming arguendo, that Mr. Perez did not raise the issue in the



10
     id
11
     id
          Trial Court the same is nevertheless properly before the Appellate Court12.

                                                     II

                   MR. PEREZ DID NOT WAIVE HIS RIGHT TO
               CONFRONT AND CROSS EXAMINE ADVERSE WITNESS
               BY MERELY SEEKING A DECLARATORY JUDGMENT

              The Appellees claim that Mr. Perez waived his right to confront and

          cross examine adverse witness by merely seeking a declaratory

          judgment13 seeking to protect his Constitutional rights. Their position is

          wholly without merit14.

                                                     III

                                 MR. PEREZ HAS A
                          CONSTITUTIONAL AND COMMON
                      LAW RIGHT TO HAVE THE CONSTITUTION
                    APPLIED AS INTENDED BY THE VOTERS IN 1876

              The Appellees claim that PALA not the Constitution or common law ,

          govern his “license”15 Mr. Perez objects.

                  In support of their position the Appellees quote a case in which


12
   Appellant’s Amended Initial Brief, item XV, pp 57-60.
13
   Appellees’ Brief p6 ¶ 2
14
   ElderCare Properties, Inc. v. Texas Department of Human Services, 63 S.W.3d 551 (Tex. App.
Dist.3 12/06/2001)( A validity challenge tests a rule on procedural and constitutional grounds);
Texas Department of Insurance v. Reconveyance Services, Inc. and City of El Paso v. Heinrich.
306 S.W.3d 256 (Tex. 2010); Southern Ohio Coal Co. v. Donovan, 774 F.2d 693 (6th Cir.
10/02/1985) citing California Utilities Commission v. United States, 355 U.S. 534, 540, 2 L. Ed.
2d 470, 78 S. Ct. 446 (1958)( But where the only question is whether it is constitutional to fasten
the administrative procedure onto the litigant, the administrative agency may be defied and
judicial relief sought as the only effective way of protecting the asserted constitutional right)
15
   Brief p3 , FN 3
            Mr. Perez’ was not a party nor were any of his defenses discussed:

                Mr. Perez has relied, inter alia, upon:

                (a) Tatro v. Texas, 703 F.2d 823 (5th Cir. 04/25/1983)16 ( at common

            law, before the enactment of PALA, physicians could delegate their

            medical authority to any individual who the supervising physician

            believed was a qualified person) ;

                (b) The State v James A. Goldman, 44 Tex. 104 (1875) ( A Texas

            Supreme Court case, contemporaneous with the Texas Constitutional

            Convention) (a medical license is merely a recognition that the holder is

            academically qualified within the meaning Article XVI, Section 31 and

            once a certificate of qualification was obtained the medical professional is

            to be left alone unless he commits malpractice) ;

                 (c) Scott v. Texas State Board of Medical Examiners, 384 S.W.2d

            686, 690 (Tex. Sup. Ct - 1964) (At common law the right to earn a living

            could only be revoked for cause , in a civil jury trial in the district courts ;

            (d) Spann v. City of Dallas, 111 Tex. 350, 235 SW 513, 514 (1921) in

            which Chief Justice Nelson Phillips stated “the Legislature has no

            authority to transgress upon the right of a citizen, who has committed no

            wrong. He has the right to acquire and own property, and to use it as he


16
     Citing Tex.Rev.Civ.Stat.Ann. art. 4495b § 3.07(i) (Vernon Supp. 1982-1983).
pleases so long as his act in such use harms no one, and so long as his

permissive use by others of his property is innocently authorized. In our

Constitution the liberties protected by the Bill of Rights are, by express

provision, 'excepted out of the general powers of government.' It is

declared that they 'shall forever remain inviolate,' and that 'all laws

contrary thereto shall be void.' Texas voters have not amended the

constitution in order to permit the legislature to use arbitrarily use police

powers to take or seize the property of innocent Texans. Nor have Texas

voters amended the Constitution to allow expand the police powers

authorized by Article XVI, § 31.

(4) Chandler v. Miller, 520 U. S. 305, 308 (1997).The Fourth

Amendment requires that searches and seizures be reasonable. A search or

seizure is unreasonable in the absence of individualized suspicion of

wrongdoing. At the time the matter was before SOAH or at the TMB no

neutral magistrates had provided a detached judgment finding probable

cause as required by the Fourth Amendment;

(5) A.R. Logan v. The State, 5 Texas Court Of Appeals 306 (Tyler-1878)

At common law , the only police power affecting the medical profession
          was Texas Constitution Article XVI, § 3117.

             Mr. Perez emphasizes and re-states that "constitution" has been defined

          as a "charter of government deriving its whole authority from the

          governed18. It is a compact between the government and the people in

          which the people delegate powers to the government and in which the

          powers of the government are prescribed19.

             By design, the framers of the Texas Constitution determined the

          constitution was to be a compact between the government and its citizens.

          Tex. Const. art. I, § 2 ("All political power is inherent in the people, and

          all free governments are founded on their authority, and instituted for their

          benefit)20.

             The guiding principle of construing a constitution is to ascertain and

          give effect to the intent of the voters who adopted it21. The provisions of

          the Texas Constitution mean what they meant when they were



17
   A.R. Logan v. The State, 5 Texas Court Of Appeals 306 (Tyler-1878) In A.R. Logan v. The
State, Mr. Augustus R. Logan was indicted for practicing medicine without a certificate of
qualification from the Board Of Medical Examiners. The Court of Appeals dismissed the
indictment because Article XVI, Section 31 had not yet gone into effect. The Court ruled therein
that the intent of the 1876 voters was to use Article XVI, Section 31 exclusively. That proviso
has not been amended by state voters.
18
     Republican Party of Texas v. Dietz, 940 S.W.2d 86, 91 (Tex. 1997) (quoting Black's Law
Dictionary 311 (6th ed. 1990)).
19
     id
20
     Republican Party, 940 S.W.2d at 91 n.6.
21
     Williams v. Castleman, 247 S.W. 263, 265 (Tex. 1922); Cox v. Robison, 150 S.W. 1149,
1151 (Tex. 1912).
          promulgated and adopted, "and it does not lie within the power of the

          Legislature to change their meaning, or to enact laws in conflict

          therewith22. As the supreme court stated more recently, "In interpreting the

          Texas Constitution, Texas courts rely heavily on the literal text and are to

          give effect to its plain language23.

             The Constitutional convention of 1876 was provoked by a corrupt

          government in Austin wherein the judicial branch colluded with the

          executive branch24.

                                                   IV

                         THE DOCTRINE OF
         EXCLUSIVE JURISDICTION DOES NOT APPLY WHERE,
     AS HERE, A PARTY ASSERT CONSTITUTIONAL CLAIMS AND THE
      ADMINISTRATIVE AGENCY HAS ENTERED A FINAL DECISION

             The Appellees assert that that the doctrine of exclusive jurisdiction

          applies even where constitutional claims have been made25. Mr. Perez

          objects.




22
     Jones v. Ross, 173 S.W.2d 1022, 1024 (Tex. 1943); see also Travelers Ins. Co. v. Marshall,
76 S.W.2d 1007, 1011-12 (Tex. 1934) (meaning of constitution does not change with
circumstances to make a different rule in a case seem desirable).
23
     Republican Party, 940 S.W.2d at 89; see also City of Beaumont v. Bouillion, 896 S.W.2d
143, 148 (Tex. 1995);.Satterfield v. Crown Cork & Seal Co., Inc., 268 S.W.3d 190 (Tex.App.
Dist.3 08/29/2008
24
   https://lawweb.colorado.edu/profiles/pubpdfs/bruff/BruffTLR.pdf
Separation of Powers under the Texas Constitution , Texas Law Review, Vol 68, #7, June 1990,
by Harold H. Bruff, Esq, Law Professor, University of Texas
25
   Appellees’ Brief p7
              The Texas Supreme Court adopted the principle26 in, its seminal case,

          i.e., Texas Education Agency v Cypress Fairbanks, 830 S.W.2d 88 (May

          6, 1992) case citing McNeese v. Board of Educ., Community Unit Sch.

          Dist. 187, 373 U.S. 668, 670-71, 10 L.Ed.2d 622, 83 S.Ct. 1433, (1963)

          and Damico v. California, 389 U.S. 416, 19 L. Ed. 2d 647 , 88 S. Ct. 526

          (1967)(per curiam).

              The Appellees categorized as meritless Mr. Perez claim that exclusive

          jurisdiction does not apply where, as here, a final administrative decision

          has been made 27. Mr. Perez objects.

              The 3rd DCA affirmed its previous ruling asserting that exclusive

          jurisdiction does not apply after an administrative decision has been made

          in WBD Oil & Gas Company v. Railroad Commission of Texas, 35

          S.W.3d 34, 35 S.W.3d 34 (Tex.App. 02/04/1999) citing Amarillo Oil Co.

          v. Energy-Agri Prods., Inc., 794 S.W.2d 20, 26 (Tex. 1990) and Kenneth

          C. Davis, Administrative Law Treatise § 19.01, at 373 (1972).

                                                     V

                    DISMISSAL WITH PREJUDICE WAS IMPROPER



26
   We note, however, that the employees' Title 42 and constitutional claims are not affected by
the doctrine of exhaustion of administrative remedies such that they must be originally
considered by the TEA. Because of the nature of such claims, prior resort to the administrative
process is not usually required
27
   Appellees’ Brief, p7
             The Appellees’ claim that the dismissal with prejudice was proper.28

          Mr. Pere objects.

             Dismissals for lack of subject matter jurisdiction are without prejudice

          to refiling29.

                                                  VI

                          MR. PEREZ LEAVE TO AMEND
                 ARGUMENT IN ORDER TO ADD MARI ROBINSON ,
                 IN HER INDIVIDUAL CAPACITY, IS MERITORIOUS

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

Robinson in her individual capacity because state government employees may be

sued in their individual capacities for damages, declaratory or injunctive relief

pursuant to 42 USC 198330.

     In the instant action Mr. Perez sued Ms Robinson pursuant to the ultra vires

act31. Accordingly, Mr. Perez ought to have been given leave to amend in order to

also sue Ms. Marie Robinson in her individual capacity32.




28
   Appelles Brief page 8
29
   Hamilton v Washington, NO. 03-11-00594-CV (3rd DCA - December 23, 2014) citing Thomas
v. Long, 207 SW 3d 334, 340 (Tex-2006)
30
   ROA, Vol 1 of 2, pp 150; Kentucky v. Graham, 473 U.S. 159, 165 (1985); Newman v. Bryan,
06-13-00063-CV (Tex.App. Dist.6 10/09/2013) citing Aguilar v. Frias, 366 SW 3d 271, 273
(Tex. App.—El Paso 2012, pet. denied)
31
   ROA , Vol 1 of 2, p 13, item 36
32
   ROA Vol 1 of 2, p 150-151; State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007); Miranda, 133
S.W.3d at 226-27.
                                    CONCLUSION

       WHEREFORE Mr. Perez respectfully submits that the trial court judgment

      be reversed and the case remanded.

Respectfully Submitted,
_________/S/_Jose A Perez_____________
 34 Candle Pine Place
 The Woodlands, TX 77381
 theaesculapius@gmail.com
 281-673-0452


                          CERTIFICATE OF SERVICE

   It is hereby certified that a copy of the foregoing “Plaintiff/Appellant’s Reply
Brief “ was served by emailing a copy thereof via the State efiling system on this
12th Day of April 2015 to:

Ted A Ross, Esq
Assistant Attorney General
PO Box 12548
Austin, TX 78711-2548
ted.ross@texasattorneygeneral.gov
Margaret.Evins@texasattorneygeneral.gov

_________/S/__ Jose A Perez _______

                              TRAP 9.4(i)(3)
                      CERTIFICATE OF COMPLIANCE

   This brief was prepared with a conventional 14-point typeface, with footnotes
in12-point typeface. The computer program used to prepare this document
determined the word count to be 3239 which includes all words contained in this
brief, excepting the cover page and index of authorities
