                                                                               ACCEPTED
                                                                          03-14-00644-CV
                                                                                 4422882
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                      3/9/2015 2:26:40 PM
                                                                        JEFFREY D. KYLE
                                                                                   CLERK
                           No. 03-14-00644-CV

                                                         FILED IN
                                                  3rd COURT OF APPEALS
__________________________________________________________________
                                                      AUSTIN, TEXAS
                                                  3/9/2015 2:26:40 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 Amended Initial Brief




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

                          Oral Argument Waived


                                     1
                        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




                                        2
                                           TABLE OF CONTENTS


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

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

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

Statement of the Case .............................................................................................16

Issues Presented ......................................................................................................16

Statement of Facts.................................................................................................. 17

Summary of the Argument .....................................................................................18

Argument ................................................................................................................23

Standard of Review……………………………………………………………….22

Prayer ......................................................................................................................59

Certificate of Service ..............................................................................................59

Tex R. App. P. 9.4(i)(3) Certificate of Compliance………………………………60

                                              Index Of Authorities

                                                          Cases

A.R. Logan v. The State,
 5 Texas Court Of Appeals 306 (Tyler-1878)………………………………27, 33

Aguilar v. Frias,
366 SW 3d 271, 273 (Tex. App.—El Paso 2012)……………………………49, 50

Alabama v. White,
 496 US 325, 328-331 (1990)……………………………………………………36
                                                              3
Allison v. Nat'l Union Fire Ins. Co.,
 703 SW 2d 637, 638 (Tex. 1986) (per curiam)……………………………….41

Austin Chevrolet, Inc. v. Motor Vehicle Bd.,
 212 S.W.3d 425, 438 (Tex. App.-Austin 2006, pet. denied)……………………39

Bank of Woodson v. Stewart,
632 S.W.2d 950, 956 (Tex. App.-Austin 1982),
 dism'd as moot, 641 S.W.2d 230 (Tex. 1982)…………………………………..26

Barber v. Texas Dept. of Transportation,
 49 S.W.3d 12 (Tex.App. Dist.3 04/05/2001)……………………………30, 32, 46

Bay City Federal Savings and Loan Ass'n. v. Lewis,
 474 SW 2d 459 (Tex. 1971)………………………………………………34, 54

Black v. 7-Eleven Convenience Stores,
 03-12-00014-CV, 03-12-00015-CV (Tex.App. Dist.3 03/07/2014)……………29

Bounds v. Smith,
  430 US 817, (1977)……………………………………………………………57

Brazos River Authority v. City of Graham,
 335 SW 2d 247, 251 (Tex. Civ. App.--Fort Worth 1960),
 aff'd., 354 SW 2d 99 (1961)…………………………………………………….48

City of Houston v. Johnny Frank's Auto Parts,
 480 SW 2d 774 (14th DCA- 1972, writ ref'd n.r.e.)………………...29, 30, 32, 46

Childs v. Weis,
 440 S.W.2d 104, 107 (Tex. Civ. App.--Dallas 1969, no writ)………………….37

CHCA E. Houston, L.P. v. Henderson,
 99 SW 3d 630, 633 (Tex. App.-Houston [14th Dist.] 2003, no pet.)…………...40

City of Dallas v. Heather Stewart,
 No. 09-0257 (Tex. 01/27/2012)…………………………………………………56



                                    4
City of El Paso v. Heinrich,
  284 S.W.3d 366, 370-74 (Tex. 2009)…………………………………………..50

City of Monterey v. Del Monte Dunes at Monterey,
   526 U.S. 687, (U.S. 05/24/1999)………………………………………………53

City of Sherman v. Pub. Utility Comm'n of Texas,
643 SW 2d 681, 686 (Tex. 1983)……………………………………………….39

Chicago, B & Q.R. Co. v. Chicago
 166 U.S. 226 (1897)…………………………………………………………….51

Cleveland Board of Education v. Loudermill.,
 470 US 532 , 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985)………………………...29

Cooper v. Tex. Gulf Indus., Inc.,
 513 SW 2d 200, 203-04 (Tex. 1974)…………………………………………...41

Combs v. Entertainment Publications, Inc.,
 292 S.W.3d 712 (Tex.App. Dist.3 06/12/2009)…………………………………39

Conner v. Johnson,
 No. 2-03-316-CV (Tex. App. Dist.2 10/28/2004)…………………………..31, 32

Continental Casualty Insurance Co. v. Functional Restoration Associates,
 19 S.W.3d 393, 19 S.W.3d 393 (Tex. 04/06/2000)……………………………..26

Christopher v. Harbury,
536 US 403 (2002)……………………………………………………………….57

Club Retro LLC v. Hilton,
  568 F.3d 181 (5th Cir. 05/06/2009)…………………………………………….36

Cypress-Fairbanks Indep. Sch. Dist. v. Texas Educ. Agency,
 797 S.W.2d 336, 342-43 (Tex. App.-Austin 1990)……………………………..42

Dent v. State of W. Va.,
 129 US 114, 121-22 (1889)……………………………………………………..44



                                   5
Downing v. Brown,
 935 SW 2d 112, 114 (Tex. 1996)………………………………………………..31

Dubai Petroleum Co. v. Kazi,
 12 S.W.3d 71, 75 (Tex. 2000)………………………………………………………………….31

ElderCare Properties, Inc. v. Texas Department of Human Services,
 63 S.W.3d 551 (Tex. App. Dist.3 12/06/2001)………………………………….25

El Paso Hosp. Dist. v. Texas Health & Human Servs. Comm'n,
 247 S.W.3d 709 (Tex. 2008)……………………………………………………38

Ex parte Abell,
 613 S.W.2d 255, 260 (Tex. 1981)…………………………………………...30, 43

Flores v. Employees Retirement Sys. of Tex.,
  74 S.W.3d 532 (Tex. App.-Austin 2002, pet. denied)……………………….….39

Francisco v. Board of Dental Examiners,
  149 S.W.2d 619, 622 (Tex. Civ. App. -- Austin 1941, writ ref'd)………………29

Freeman v. City of Dallas,
242 F.3d 642, 647 n.5 (5th Cir. 2001) (en banc)

G.C. & S.F. Ry. Co. v. Fuller,
 63 Tex. 467, 469 (1885)…………………………………………………………49

General Servs. Comm'n v. Little-Tex Insulation Co.,
 39 SW 3d 591, 599 (Tex. 2001)………………………………………………..39

Gibson v. Texas Municipal Retirement System,
  683 SW 2d 882 (Tex. App.--Austin 1985, no writ)……………………….34, 54

Gutierrez v. Laredo Independent School Dist.,
 139 S.W.3d 363 (Tex.App. 05/12/2004)………………………………………..42

Griffin v. Hawn,
 341 SW 2d 151, 152 (Tex. 1960)………………………………………………47



                                        6
Hamilton v. Washington,
 NO. 03-11-00594-CV (3rd DCA - December 23, 2014)………………………...38

Harris County v. Sykes,
136 S.W.3d 635 (Tex. 05/28/2004)………………………………………………45

Heck v. Humphrey,
512 U. S. 477, 483 (1994)……………………………………………………….53

Holland St. John, M.D v. Marty Howard Pope and Sally Bates Pope,
 901 S.W.2d 420 (Tex. 06/08/1995)……………………………………………..37

Hull v. Texas State Board Public Accountancy,
 434 SW 2d 387 (Tx App. – Houston- (11/06/68)……………………………….28

In Re Clifford Hall,
  NO. 14-14-00062-CV , (14th DCA - May 28, 2014)………………………40, 41

Industrial Accident Bd. v. O'Dowd,
  303 S.W.2d 763 (Tex. 1957)……………………………………………………44

In re State Bd. for Educator Certification,
  No. 13-0537, (Tex. Dec. 19, 2014)……………………………………………...26

In re Texas Medical Board, 315 S.W.3d 177
  (Tex.App. Dist.6 06/01/2010)………………………………………………….35

Jackson v. Procunier,
   789 F.2d 307 (5th Cir. 05/09/1986)……………………………………………57

Jones v. Ross,
  173 S.W.2d 1022, 1024 (Tex. 1943)……………………………………………26

Kadrmas v. Dickinson Public Schools,
 487 U.S. 450, 456-457 (1988)…………………………………………………..29

Katz v. United States,
 389 US 347 , 351 (1967)……………………………………………………….36



                               7
Ker v. California,
374 U.S. 23, 30, 83 S.Ct. 1623, 1628 (1963)……………………………………..52

Kent , et al, v Dulles,
357 US 116 (U.S. 06/16/1958)……………………………………………………49

Kentucky v. Graham,
 473 U.S. 159, 165 (1985)……………………………………………………49, 50

Kobza v. Kutac,
 109 S.W.3d 89 (Tex.App. Dist.3 05/30/2003)…………………………………..31

Kodiak Resources, Inc. v. Smith,
 No. 09-10-00362-CV (Tex.App. Dist.9 02/16/2012)……………………….41. 45

Land O'Lakes Creameries v. La. State Bd. of Health,
160 F. Supp. 387, 388 (E.D. La. 1958)……………………………………………25

Latham v. Security Insurance Co. of Hartford,
 491 SW 2d 100 (Tex. 1972)…………………………………………………….28

Lopez v. Aziz,
 852 S.W.2d 303, 306 (Tex. App.--San Antonio 1993, no writ)………………...37

Lucas v. South Carolina Coastal Council,
505 US 1003, 1019 (1992)…………………………………………………...47, 51

Lynch v. United States,
 292 U.S. 571 (1934)…………………………………………………………….49

Mann v. Texas State Board Medical Examiners ,
 403 SW 2d 218 (Texas Appellate Austin)
 affirmed 413 S.W.2d 382, (03/29/67)……………………………………26, 27, 34

Mapp v. Ohio,
 367 US 643 , 367 US 643, 655 (1961)…………………………………………36

Marino v. King,
355 SW 3d 629,634 (Tex. 2011)………………………………………………….57


                                  8
Marshall v. Barlow's, Inc.,
 436 US 307(1978)……………………………………………………………….36

Middletown v. Texas Power & Light Co.,
 185 S.W. 556, 560 (Tex. 1916)……………………………………………26, 43

Milestone Operating, Inc. v. ExxonMobil Corp.,
388 SW 3d 307, 310 (Tex. 2012)………………………………………………57

McCain v. Yost,
284 S.W.2d 898, 900 (Tex. 1955)…………………………………………….30, 43

McCarthy v. Madigan,
 503 US 140, 146-48 (1992)…………………………………………………….32

Middletown v. Texas Power & Light Co.,
 185 S.W. 556, 560 (Tex. 1916)

Mitz v. Texas State Board of Veterinary Medical Examiners,
 278 S.W.3d 17 (Tex.App. Dist.3 11/14/2008)………………………………32, 38

Nautilus , Inc. v Biosig Instruments, Inc.
  No. 13-369 (US Supreme Court - June 2, 2014)……………………………….49

Newman v. Bryan,
 06-13-00063-CV (Tex.App. Dist.6 10/09/2013)……………………………49, 50

Patel, et al v. Texas Department of Licensing and Regulation,
  No. 03-11-00057-CV (Tex.App. Dist.3 07/25/2012)…………………………..23

Paul v. Davis,
 424 US 693, 710-11 (1976)…………………………………………………….29

Payne v. Texas State Board of Medical Examiners,
 No. 03-07-00558-CV (Tex.App. Dist.3 03/12/2009)…………………………...39

Pennsylvania Coal Co. v. Mahon,
260 US 393 (1922)………………………………………………………………49



                                     9
Presley v. City of Charlottesville,
464 F.3d 480, 487 (4th Cir. 2006)………………………………………………..52

Railroad Commission of Texas v. WBD Oil & Gas Co.,
104 S.W.3d 69 (Tex. 02/13/2003)………………………………………………..34

Railroad Comm'n v. ARCO Oil & Gas Co.,
 876 SW 2d 473, 478 (Tex. App.-Austin 1994, writ denied)……………………42

Rector v. Texas Alcoholic Beverage Commission,
 599 S.W.2d 800, (Tex. 1980)……………………………………………………35

Renault v City of Houston ,
415 S.W.2d 948 (10th DCA- 05/18/67)…………………………………………49

Robinson v. Crown Cork & Seal Co.,
 335 SW 3d 126, 147 (Tex. 2010)………………………………………….27, 30

Salas v. Gamboa,
 760 S.W.2d 838, 840 (Tex.App.--San Antonio 1988, no writ)………………….37

San Antonio River Authority v. Garrett Brothers,
 528 SW 266, 273 (Tex. Civ. App.--San Antonio 1975, writ ref'd n.r.e.)………48

San Remo Hotel, L.P. v. City & Cnty. of S.F., Cal.,
 545 US 323, 346 (2005)………………………………………………………52

Satterfield v. Crown Cork & Seal Co., Inc.,
 268 S.W.3d 190 (Tex. App. Dist.3 08/29/2008)………………………………...26

Sierra Club v. Tex. Natural Res. Conservation Comm'n,
  26 SW 3d 684, 688 (Tex. App.-Austin 2000)…………………………………..41

Scott v. Texas State Board of Medical Examiners,
 384 S.W.2d 686, 690 (Tex. Sup. 1964)……………………………..26, 28, 29, 34

Scott v. Presidio I.S.D.,
 266 S.W.3d 531 (Tex.App. Dist.3 08/28/2008)…………………………………40



                                    10
Severance v. Patterson,
566 F.3d 490 (5th Cir. 04/23/2009)…………………………………………52, 53

Sholdra v. Bluebonnet Sav. Bank, FSB,
 858 SW 2d 533, 535 (Tex. App.-Fort Worth 1993, writ denied)………………54

Smith v Tarrant County Bail Bond Board,
 997 SW 2d 870 (Tex App Dist 2 – 1999)……………………………………….24

Soldal v. Cook County,
506 U.S. 56, 61, 113 S.Ct. 538, 543 (1992)……………………………………...52

Spann v. City of Dallas,
 235 S.W. 513 (1921)…………………………………………………29, 30, 32, 46

State Bd. of Medical Examiners v. Mann,
  413 S.W.2d 382, (Tex. 1967)…………………………………………………..28

State ex rel Caldwell v. Allstate Insurance Co.,
  536 F.3d 418 (5th Cir. 07/18/2008)……………………………………………..25

State v. Hale,
146 SW 2d 731 (Tex. 1941)………………………………………………………47

State v. Holland,
   221 S.W.3d 639, 643 (Tex. 2007)…………………………………………49, 51

State v. Thomas,
 766 SW 2d 217, 220 (Tex. 1989)………………………………………………..26

State v. Woodard,
 341 SW 3d 404, 411 (Tex. Crim. App. 2011)…………………………………...36

Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection,
  No. 08-1151 (U.S. 06/17/2010)……………………………………………..47, 51

Subaru of Am., Inc. v. David McDavid Nissan, Inc.
 84 S.W.3d 212, 219 (Tex. 2002)……………………………………………36, 43



                                       11
Swilley v. McCain,
 374 S.W.2d 871 (Tex. 1964)……………………………………………………29

Tatro v. Texas,
 703 F.2d 823, 832 (5th Cir. 1983)………………………………………………26

Terry v. Ohio,
 392 US 1, 22 (1968)……………………………………………………………36

Texas Alcoholic Beverage Commission, v. American Legion
 NO. 03-11-00703-CV (3rd DCA- May 16, 2014)……………………………….23

Tex. Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist.,
 830 SW 2d 88, 90 FN3 (Tex. 1992)…………………………………………….42

Texas Educ. Agency v. Leeper,
 893 S.W.2d 432, 443 (Tex. 1994)………………………………………………39

Texas Comptroller of Public Accounts v. Walker Electric Company, et al ,
 NO. 03-13-00285-CV (3rd DCA- November 21, 2014)………………………...22

Texas Department of Public Safety v. Caitlin Elizabeth Adkins,
 No. 11-10-00298-CV; (Tex.App. Dist.11 08/16/2012)………………………...36

Texas Dep't of State Health Servs. v. Balquinta,
 429 SW 3d 726, 747 (Tex. App-Austin 2014, pet. filed)…………………32, 39

Tex. Dep't of Parks & Wildlife v. Miranda,
 133 SW 3d 217, 227 (Tex. 2004)………………………………….22, 49, 50, 51

Texas Parks and Wildlife Department v. the Sawyer Trust,
 No. 07-0945 (Tex. 08/26/2011) ………………………………………………...50

Texas Logos, L.P. v. Texas Dep't of Transp.,
 241 S.W.3d 105 (Tex. App.-Austin 2007, no pet.)……………………………...39

Texas State Board Medical Examiners v. Haney ,
 472 S.W.2d 550 (Tx App –Austin - (10/27/71)………………………………...28



                                   12
Texas State Bd. of Pharm. v. Walgreen Tex. Co.,
 520 SW 2d 845 (Tex. App.--Austin 1975, writ ref'd n.r.e.)……………………32

Texas State Board of Pharmacy v Witcher,
  447 SW 3d 520 (3rd DCA- October 31, 2014)………………………………….38

Texas Vending Comm. v. Headquarters Corp.,
 505 SW 2d 402 (Tex. Civ. App. – Austin - 1974, writ ref'd n.r.e.)……………..29

Tex. Workers' Comp. Comm'n v. Garcia,
893 SW 2d 504, 521 (Tex. 1995)………………………………………………...58

Town of Nags Head v. Toloczko,
12-1537 (4th Cir. 08/27/2013)……………………………………………………52

The State v James A. Goldman,
 44 Tex. 104 (1875)………………………………………………………….27, 33

Travelers Ins. Co. v. Marshall,
 76 S.W.2d 1007, 1011-12 (Tex. 1934)………………………………………….26

Travelers Ins. Co. v. Joachim,
   315 SW 3d 860, 862 (Tex. 2010)……………………………………………55

Trevino v. State,
 03-12-00060-CV (Tex.App. Dist.3 08/07/2013)………………………………..45

United States v. Johnson,
 319 US 302, 304 (1943)………………………………………………………...25

United States v. Jacobsen,
466 U.S. 109, 113, 104 S.Ct. 1652, (1984)……………………………………….52

United States v. James Daniel Good Real Property,
510 U.S. 43, 49-50, 114 S.Ct. 492, 499 (1993)…………………………………...52

United States v. Jones,
 132 S.Ct. 945, 181 L.Ed.2d 911 (U.S. 01/23/2012)…………………………….36



                                    13
Univ. of Tex. Sw. Med. Ctr. at Dall. v. Loutzenhiser,
  140 SW 3d 351, 358 (Tex. 2004)……………………………………………...57

Vartelas v. Holder,
 132 S.Ct. 1479 (U.S. 03/28/2012)………………………………………………30

Waller v. State,
 68 S.W. 2d 601, 605 (Tex. Civ. App. -- Amarillo 1934, writ ref'd)……………29

Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City,
473 U.S. 172, (1985)…………………………………………………………….51

Wolff v. McDonnell,
 418 US 539, 559 (1974)………………………………………………………35

Young v. the State of Texas,
 No. 14-10-00646-CR (Tex. App. Dist.14 01/10/2012)…………………………42

Zenith Star Ins. Co. v. Wilkerson,
 150 S.W.3d 525, 533 (Tex. App.--Austin 2004, no pet.)……………………….40

Zimmer v. Miller Trucking Co.,
743 F.2d 601 (8th Cir. 09/13/1984)……………………………………………….45


US Constitution

   Amend IV……………………………………………………………..28, 36, 52

   Amend V………………………………………………………………………53

   Amend. XIV…………………………………………………………..25, 29, 58

   Ex Post Facto Clause U.S. Const.. art. I, ' 10 Cl 1………………………...30, 42

   Contract Clause………………………………………………………………..30

US Statutes

  28 USC 1653…………………………………………………………………..56
                                   14
42 USC 1983………………………………………………………………….49, 50

Texas Constitution

  Article 1 , § 9………………………………………………………………28, 36

   Art. I, § 19……………………………………………………………..25, 29, 58

  Art. 17, § 1………………………………………………………………26, 47

  Art. XVI, § 31…………………………………………………………27, 33, 35

  Art. II, § 1……………………………………………………………………...26

  Article I, § 16…………………………………………………………...30, 36, 42

 Separation of Powers Doctrine………………………………………………….27


Texas Statutes

   Medical Practice Act , Art 4501……………………………………………..26

    Medical Board Rule §187.27………………………………………………...38

    Medical Board Rule §185.17(3)……………………………………………38

    Medical Board Rule §185.17(9)……………………………………………38

   Medical Board Rule §187.27(b)(3)(C)………………………………………38

   Administrative Procedure Act (APA)…………………………………………32

  Texas Occupation Code Sect. 204.051……………………………………..24, 43

  Texas Occupation Code Sect. 204.001………………………………………...43

  Texas Occupational Code § 164.007(c)………………………………………..35

 Administrative Code , Title 22, Part 9, Chapter 185……………………………24
                               15
 Administrative Code , Title 22, Part 9, Chapter 190……………………………43

 Texas Government Code

     §
2001.171…………………………………………………………………………..55
     § 2003.001(4) (A)………………………………………………………24, 43
     § 2001.003 (7)………………………………………………………………24
     § 2001.003(6)……………………………………………………………….24
      § 2001.141…………………………………………………………………34
      § 2001.035(a)………………………………………………………………38
     § 2001.038…………………………………………………………….. 39, 40
      § 2001.176(b)(2)…………………………………………………………..41

       Health & Safety Code § 12.001…………………………………………..44


Texas Rules of Evidence

 Tex. R. Evid. 803(24)……………………………………………………….31, 32

Miscellaneous

  12 Charles Alan Wright & Arthur R. Miller,
  Federal Practice and Procedure § 3522 (1984)………………………………46

 Texas Register, Volume 15, Number 65,
        Pages 4941 , August 24, 1990………………………………………….35

Cooley, Const. Lim. 248…………………………………………………………..31

 Texas Medical Board Agency Strategic Plan - Fiscal Years 2009-2013……….23

 61 Am. Jur. 2d Physicians and Surgeons § 14, 158……………………………..37




                                   16
                          STATEMENT OF THE CASE

   (a) Petition to quash an administrative order
   (b) Inverse Condemnation Proceedings
   (c) Federal Takings/Seizure of property Claim
   (d) Ultra vires claim – defendant Marie Robinson
   (e) Declaratory judgment and complaint for compensatory and punitive
       damages

Trial Court

   The Honorable Darlene Byrne
   53rd Judicial District

Course of Proceedings

   The Case was dismissed pursuant to Defendants’ Plea to the Jurisdiction

Trial Court Disposition

   Cause of Action dismissed. All relief denied

                              ISSUES PRESENTED

   The District Court granted the defendants’ plea to the jurisdiction.

   1- The Defendants waived sovereign immunity pursuant to Article I, Section 17
      of the Texas Constitution;
   2- The Defendants waived sovereign immunity pursuant to the US
      Constitution Fourth, Fifth and Fourteenth Amendments;
   3- The Defendants waived immunity pursuant to Section 2001.038 of the
      Administrative Procedures Act;
   4- The trial court erred in dismissing Mr. Perez’ ultra vires claim against
      Defendant Mari Robinson, JD , in her official capacity;
   5- The District Court has jurisdiction over Defendant Marie Robinson in her
      individual capacity within the meaning of 42 USC 1983
   6- The District Court erred in concluding that the Defendants could penalize
      Mr. Perez pursuant to default procedures
   7- The District Court erred in concluding that the Defendants could penalize
      Mr. Perez using laws adopted after 1994.
                                         17
                    STATEMENT REGARDING ORAL ARGUMENT

                                Mr. Perez waives Oral Argument .

                                   STATEMENT OF FACTS

           Mr. Perez has a right to be gainfully employed as a physician Assistant

       since September 22nd, 19941. On April 17th, 2014 Mr. Perez’ Supervising

       Physician , Rafael J. de la Flor-Weiss, MD, informed Mr. Perez that agents

       acting under the direction of the defendants informed Doctor dela Flor-

       Weiss that Mr. Perez’ license had been revoked and directed him to escort

       Mr. Perez away from the clinic2. The Defendants have never found that

       abridgement of his right to be gainfully employed as a physician assistant

       was necessary for the preservation of the health, safety, and welfare of the

       public3. The Defendants have informed Mr. Perez that he was deprived of

       his right to earn a living because he failed to participate in an administrative

       proceeding 4.




1
  Record on Appeal (ROA) Vol 1 of 2, p5, item 1
2
  ROA , Vol 1 of 2, p. 4, item 1; ROA p 174, Defendants Brief in support of their first amended
plea to the jurisdiction p1
3
  ROA, Vol 1 of 2 p. 144 , item #8
4
  ROA p.4, Vol 1 of 2, item #3
                                               18
             On April 17th, 2014 Mr. Perez was deprived of all economical beneficial

         use of his property. Mr. Perez right to work as a physician assistant was

         seized by the defendants on April 17th, 20145.

             Mr. Perez has never signed any document nor agreed in any way , fashion

         or form to waive any federal, state or common law right. Specifically he has

         not (a) waived his state right to jury trial at a district court ; (b) waived the

         Fourteenth Amendment right to the preponderance of evidence standard of

         proof © waived his Fourth Amendment rights; (d) waived his right to

         confront and cross examine adverse witness; (e) waived his rights pursuant

         to Texas Constitution Article XVI, Section 31, (f) waived his right to object

         to ex post facto laws; (g) waived his right to decide when and with whom he

         would enter into a patient-physician assistant relationship ; (h) waived his

         rights pursuant to the common law respondeat superior doctrine6.

                                       RECORD ON APPEAL

             The Clerk of Court filed a 184 pages document entitled “Clerk’s Record”,

         Vol 1 of 1 on November 14th, 2014. The Clerk of Court also filed a 100

         pages document entitled “Clerk’s Record” , Vol 1 of 1 on February 13th,




5
    ROA p 4, Vol1 of 2, item 1; ROA, Vol.1 of 2 p. 143 , item 1
6
    ROA , Vol 1 of 2, p 10, item # 23
                                                19
2015. Mr. Perez has designated the November 14th, 2014 set of documents as

Vol 1 of 2, and the February 13th, 2015 document as Vol 2 of 2.

                   SUMMARY OF THE ARGUMENT

   (a) The trial court was required to give effect to the intent of the 1876

      voters.

   (b) The trial court was supposed to abide by Supreme Court precedents;

   (c) Defendants waived sovereign immunity pursuant to Article I, Section

      17 of the Texas Constitution and pursuant to US Constitution Fourth,

      Fifth and Fourteenth Amendments; it also waived immunity pursuant

      to Section 2001.038 of the Administrative Procedures Act.

   (d) Failure to sue an essential party is a non-jurisdictional defect within

      the meaning of government code 2001.176 and Rule 39, TRCP;

   (e) A federal and state “takings” or seizure of property proceeding

      applies to all species of property without exceptions or limitations;

   (f) Mr. Perez has a vested common law right to work as a physician

      assistant;

   (g) A medical license within the meaning of Texas Constitutional law

      merely means that the licensee has demonstrated that he graduated

      from an accredited University.




                                    20
(h) The Texas Supreme Court has ruled that when a party has received

   the degree of “Doctor of Medicine” from an established and well-

   accredited college, no matter where he go throughout the state or

   whatever may have been its date , he is not required to produce any

   other evidence of his qualification. So when he has been examined

   by an authorized Board of Medical examiners and has received a

   certificate of qualification, he is not required to undergo a

   subsequent examination, nor furnish at any time any other

   additional prove of his qualifications.”

(i) The government cannot force Mr. Perez to waive his Constitutional

   rights in order to work as a physician assistant;

(j) At common law a medical license could only be revoked by the

   district court , for cause , in a jury trial, pursuant to the

   preponderance of evidence standard;

(k) The trial court ought to have given Mr. Perez leave to amend the

   complaint to sue Defendant Marie Robinson in her individual capacity

   within the meaning of 42 USC 1983;

(l) The trial court transgressed upon Mr. Perez’ right to adequate,

   effective and meaningful access to courts of general jurisdiction;




                                 21
(m)      The trial court erred in dismissing Mr. Perez’ ultra vires claim

   against Defendant Mari Robinson, JD , in her official capacity;

(n) The trial court erred in not adjudicating whether Mr. Perez’ property

   has been taken and/or seized within the meaning of the US

   Constitution Fourth and Fifth Amendments;

(o) The trial court erred in admitting into evidence Defendant Exhibit “A”

   because , inter alia, the Physician Assistant Board (PAB) has no

   authority to revoke Mr. Perez’ right to work as a physician assistant

   on a “default basis “ and its failure to disclose underlying facts

   constitutes reversible error.

(p) The trial court erred in admitting into evidence Defendants’ exhibit

   “B” through “H”;

(q) Mr. Perez respectfully submits that, as to federal claims, he can

   amend defective allegations of jurisdiction in the appellate courts

   pursuant to 28 USC § 1653.

(r) Mr. Perez respectfully submits that he can amend defective allegations

   of jurisdiction in the appellate courts pursuant to Tex. Const. art. I, §

   13.The open courts provision of the Texas Constitution provides: "All

   courts shall be open and every person for an injury done him, in his

   lands, goods, person or reputation, shall have remedy by due course of


                                   22
              law." Tex. Const. art. I, § 13. This requirement "guarantees that a

              common law remedy will not be unreasonably abridged.

          (s) Mr. Perez respectfully submits that, as to all claims, he can amend

              defective allegations of jurisdiction in the appellate courts pursuant to

              The Due Process Clauses of the Texas Constitution and the Fourteenth

              Amendment to the United States Constitution. In Texas an

              adjudication in the merits is preferred.

          (t) Mr. Perez respectfully submits that he can amend defective allegations

              of jurisdiction in the appellate courts pursuant to Tex. R. App. P. 38.7

              and 2.

                                  STANDARD OF REVIEW

          Sovereign immunity from suit defeats a trial court’s subject matter

       jurisdiction and thus is properly asserted in a plea to the jurisdiction7.

       Whether Mr. Perez has alleged facts that demonstrate subject matter

       jurisdiction is a question of law8. Accordingly, the Appellate Court reviews

       the district court’s order granting Defendants’ pleas to the jurisdiction de

       novo9.




7
  Tex. Dep't of Parks & Wildlife v. Miranda, 133 SW 3d 217, 227 (Tex. 2004);
8
  Id at 226
9
   Texas Comptroller of Public Accounts v. Walker Electric Company, et al , NO. 03-13-00285-
CV (3rd DCA- November 21, 2014)
                                             23
          In asserting a plea to the jurisdiction a party contends that an incurable

       defect precludes the court’s hearing the case on the merits, even if all

       allegations in the pleadings are true10. Thus, the court does not look to the

       merits of the Plaintiff’s case in conducting its review, but considers only the

       Plaintiff’s pleadings and any evidence submitted by the parties that is

       pertinent to the jurisdictional inquiry11. It construes the pleadings liberally in

       favor of conferring jurisdiction and looks to the pleader’s intent12 .

                                         ARGUMENT

                                                  I

     THE TEXAS MEDICAL BOARD IS THE REAL PARTY IN INTEREST


             The Defendants claim that Mr. Perez failed to sue the Physician

         Assistant Board (PAB) which is , allegedly, the Agency which issued the

         Order to revoke his license13. That assertion is meritless14.

             The Texas Medical Board is the agency which filed the Complaint in the

         State office of Administrative Hearings15.


10
   id
11
   Patel, et al v. Texas Department of Licensing and Regulation, No. 03-11-00057-CV
(Tex.App. Dist.3 07/25/2012)
12
   Texas Alcoholic Beverage Commission, v. American Legion NO. 03-11-00703-CV (3rd DCA-
May 16, 2014)
13
   ROA Vol 1 of 2, pp 63-64; Defendants First Amended Plea To The Jurisdiction , P1 ¶ 1.1 (
The Texas Physician Assistant Board issued the Order which revoked his license.)
14
   ROA Vol 1 of 2 , pp 72-73
15
   Form “Request to Docket Case”, Case Number XXX-XX-XXXX.PA, Appendix Document 4.
                                            24
            The Texas Medical Board has admitted to having the responsibility to

         regulate physician assistants and the PAB. In their publication, known as

         “Texas Medical Board Agency Strategic Plan - Fiscal Years 2009-201316

         they state on page 8 paragraph 1 that :

         “Although the Texas Medical Board’s name and identity are based in the
         regulation of physicians, the agency regulates multiple licenses related to
         health care. Major responsibilities include the Physician Assistant
         Board…” (emphasis added)

            They go on to state on paragraph 3 that :

         “The Texas Medical Board’s statutory responsibilities and authority are
         based in 18 chapters of the Occupations Code. The Medical Practice Act,
         which governs the regulation of the practice of medicine, includes …..The
         Physician Assistant Licensing Act is Chapter 204,. “(emphasis added)

            The defendants continue to state on page 8 , paragraph 2 that:

         “ TMB currently regulates over 59,000 physicians, 4,215 physician
         assistants, ….“(emphasis added)

             Consequently, for the reasons stated hereinabove Mr. Perez decision

         to sue the Texas Medical Board instead of the Physician Assistant Board

         (PAB) was completely and totally proper.

            Moreover, the PAB is merely is an advisory Board to the Texas State

         Board of Medical Examiners17. The PAB is a subdivision or bureau of the



16
   https://www.tmb.state.tx.us/idl/7D87F4DD-5EBB-384B-338B-917DFBDC990A
The document state on page 1 “This document, created and produced in-house at TMB….”
17
   Texas Occupation Code Sect. 204.051
                                         25
          Texas Medical Board18.The Texas Administrative Code , Title 22, Part 9

          show the state agencies that have statewide jurisdiction19 , the PAB is not

          listed there.

             The trial courts are required to determine who the real parties in

          interest are20. A party is a real party in interest when it is "directly and

          personally concerned in the outcome of the litigation to the extent that his

          participation therein will insure 'a genuine adversary issue between the

          parties21 . The defendants have not, and cannot, present any evidence

          showing that the Texas Medical Board is not the real party in interest.

                                                    II

                       SOVEREIGN IMMUNITY DOES
                NOT BAR A SUIT TO CHALLENGE OR RESTRAIN
                  AN AGENCY ORDER OR ACTION THAT IS
             BEYOND THE AGENCY’ S CONTITUTIONAL AUTHORITY


           Administrative decisions may be attacked in court if they adversely

          affect, as here22, a vested property right or otherwise violate some




18
   Texas Administrative Code , Title 22, Part 9, Chapter 185
19
   Cf. Smith v Tarrant County Bail Bond Board, 997 SW 2d 870 (Tex App Dist 2 – 1999), see
also Texas Government Code 2003.001(4) (A); 2001.003 (7),
20
   State ex rel Caldwell v. Allstate Insurance Co., 536 F.3d 418 (5th Cir. 07/18/2008)
21
   Id, citing Land O'Lakes Creameries v. La. State Bd. of Health, 160 F. Supp. 387, 388 (E.D.
La. 1958) and United States v. Johnson,319 US 302, 304 (1943)).
22
   ROA, Vol 1 of 2, pp 14-17; 24-26; 80-82; 112-113; 118-120; 159-161
                                              26
          provision of the State or Federal Constitution23 The right to challenge

          administrative actions by an original action in district court on the basis

          that such actions unconstitutionally deprive the plaintiff of a vested

          property right is a right to judicial review distinctly different from the

          right to judicial review given by a statute24. A vested right is a property or

          legal right, which the Constitution protects like any other property25.

     The following vested property rights are being adversely affected26:

          . The physician assistant profession existed at common law27. At

          common law Texans had the right to earn a living practicing medicine

          subject only to medical malpractice litigation28. At common law physician

          assistants had a right to have the Constitution applied as originally

          intended by the voters29 . Specifically at common law, Constitutional

          provisos could only be amended pursuant to Constitutional Amendment30.



23
   ElderCare Properties, Inc. v. Texas Department of Human Services, 63 S.W.3d 551 (Tex. App.
Dist.3 12/06/2001) citing U.S. Const. amend. XIV; Tex. Const. art. I, § 19;
24
   Continental Casualty Insurance Co. v. Functional Restoration Associates, 19 S.W.3d 393, 19
S.W.3d 393 (Tex. 04/06/2000) ; Bank of Woodson v. Stewart, 632 S.W.2d 950, 956 (Tex. App.-
Austin 1982), dism'd as moot, 641 S.W.2d 230 (Tex. 1982);
25
   Satterfield v. Crown Cork & Seal Co., Inc., 268 S.W.3d 190 (Tex. App. Dist.3 08/29/2008)
quoting Middletown v. Texas Power & Light Co., 185 S.W. 556, 560 (Tex. 1916).
26
   ROA Vol 1 of 2, pp 13-16
27
     Tatro v. Texas,703 F.2d 823, 832 (5th Cir. 1983)
28
   FN 51
29
   ROA Vol 1 of 2 pp 41-42; 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).
30
   State v. Thomas, 766 SW 2d 217, 220 (Tex. 1989) ; Texas Constitution Article 17, § 1
                                             27
              At common law, only the district courts could revoke the right to

          Practice a profession pursuant to the Medical Practice Act31 and the

          Separation of Powers Doctrine32.

              At common law a “certificate of qualification or “license” meant that

          the practitioner graduated from an accredited university33. At common

          law a “certificate of qualification” or “license” meant that the practitioner

          was to be left alone unless he committed malpractice34. At common law ,

          the only police power affecting the medical profession was Texas

          Constitution Article XVI, § 3135.



31
    Mann v. Texas State Board Medical Examiners , 403 SW 2d 218 (Texas Appellate Austin)
affirmed 413 S.W.2d 382, (03/29/67) quoting Scott v. Texas State Board of Medical Examiners,
384 S.W.2d 686, 690 (Tex. Sup. 1964)
32
   In re State Bd. for Educator Certification, No. 13-0537, , at *17-18 (Tex. Dec. 19, 2014) citing
see Tex. Const. art. II, § 1 .
33
    In The State v. James A. Goldman the Texas Supreme Court ruled that once a medical
practitioner has shown, as here, that he graduated from an accredited university he was to be
left alone unless he commits malpractice.
The State v James A. Goldman, 44 Tex. 104 (1875)

The Texas Supreme Court ruled therein :

“When a party has received the degree of “Doctor of Medicine” from an established and well-
accredited college, no matter where he go throughout the state or whatever may have been its
date , he is not required to produce any other evidence of his qualification. So when he has been
examined by an authorized Board of Medical examiners and has received a certificate of
qualification33, he is not required to undergo a subsequent examination, nor furnish at any
time any other additional prove of his qualifications.”
34
   id
35
   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.
                                                28
             Ex post facto laws were null and void36.Trials were de novo, just as if

          the administrative proceeding had not occurred37. Physician assistants had

          a right to have a neutral magistrate determine if there was probable

          cause38. The State Office Of Administrative Hearing failed or refused to

          find probable cause39. The burden of proof in sustaining the order was

          then upon the administrative agency40. Questions of fact were then

          resolved in a district court by the jury pursuant to the preponderance of

          the evidence standard of proof41. Appeals automatically set aside the

          administrative Order and the practitioner could continue practicing

          medicine42 until the district court affirmed the judgment of the

          administrative agency43.

             The defendants have not, and cannot, identify the statute(s) in effect in

          1994 which removed those vested property and legal rights from


36
   Robinson v. Crown Cork & Seal Co., 335 SW 3d 126, 147 (Tex. 2010) (Robinson v.
Crowncork & Seal Co., Inc., No. 06-0714 (Tex. 10/22/2010) .
37
   Mann v. Texas State Board Medical Examiners , 403 SW 2d 218 (Texas Appellate Austin)
affirmed 413 S.W.2d 382, (03/29/67)
38
   US Constitution Fourth Amendment ; Texas Constitution Article 1 , § 9;
39
   Appendix Document 5 FN 2
40
   State Bd. of Medical Examiners v. Mann, 413 S.W.2d 382, [Tex. 1967] quoting Scott v. Texas
State Board of Medical Examiners, 384 S.W.2d 686, 690 (Tex. Sup. 1964)
41
   Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686, 690 (Tex. Sup. 1964),
supra
42
   Texas State Board Medical Examiners v. Haney , 472 S.W.2d 550 (Tx App –Austin -
(10/27/71) Latham v. Security Insurance Co. of Hartford, 491 SW 2d 100 (Tex. 1972); (State
Bd. of Medical Examiners v. Mann, 413 SW 2d 383 [Tex. 1967];
43
   Hull v. Texas State Board Public Accountancy, 434 SW 2d 387 (Tx App. – Houston-
(11/06/68)
                                             29
          physician assistants. The defendants have not, and cannot, identify the

          basis for asserting that Mr. Perez waived his vested rights as identified

          herein. The defendants have not, and cannot, identify the legal basis for

          concluding that Mr. Perez cannot challenge the Constitutionality of the

          statutes which adversely affect his rights44. The defendants have not, and

          cannot, claim that Mr. Perez committed an act which constitutes medical

          malpractice or which endangered or injured the public45. The Defendants

          have not , and cannot, show that the Texas Constitution has been

          amended in order to deprive him of the aforementioned rights. The

          Defendants have not, and cannot, claim that Mr. Perez is, somehow

          excluded from the Texas’ doctrine of stare decisis46.

              Once the right to practice medicine is lawfully acquired, it is a right

          protected by the due process clauses of the state and federal




44
   Cleveland Board of Education v. Loudermill.,470 US 532 , 84 L. Ed. 2d 494, 105 S. Ct. 1487
(1985) ; Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 456-457 (1988). 456-57
45
   ROA Vol 1 of 2, pp 80-81 City of Houston v. Johnny Frank's Auto Parts, 480 SW 2d 774
(Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.). quoting Spann v. City of Dallas, 111
Tex. 350, 235 S.W. 513 (1921) ; Francisco v. Board of Dental Examiners, 149 S.W.2d 619, 622
(Tex. Civ. App. -- Austin 1941, writ ref'd) (quoting Waller v. State, 68 S.W. 2d 601, 605 (Tex.
Civ. App. -- Amarillo 1934, writ ref'd)).
46
   Black v. 7-Eleven Convenience Stores, 03-12-00014-CV, 03-12-00015-CV (Tex.App. Dist.3
03/07/2014) citing Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964)
                                               30
          constitutions47 and can only be revoked as shown herein. 48

              The Federal49 and the Texas50 Constitutions protect vested rights. The

          Fourteenth Amendment, §1 provides, among other things, that a State

          may not abridge "the privileges or immunities of citizens of the United

          States" or deprive "any person of life, liberty, or property, without due

          process of law."51

              Since the right of the citizen to use his property as he chooses so long

          as he harms nobody, is an inherent and constitutional right, the police

          power cannot be invoked for the abridgment of a particular use of private

          property, unless such use reasonably endangers or threatens the public

          health, the public safety, the public comfort or welfare52. A law which



47
    Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686, 690 (Tex. Sup. 1964),
citing Vernon's Ann.St.Const. art. 1, § 19; U.S.C.A.Const. amend. 14. Francisco v. Board of
Dental Examiners, 149 S.W.2d 619 (Tex.App. 03/05/1941); Paul v. Davis,424 US 693, 710-11
(1976).
48
    Texas Vending Comm. v. Headquarters Corp., 505 SW 2d 402 (Tex. Civ. App. – Austin -
1974, writ ref'd n.r.e.) quoting Scott v. Texas State Board of Medical Examiners, supra.;
49
   Vartelas v. Holder, 132 S.Ct. 1479 (U.S. 03/28/2012) quoting Landgraf v. USI Film Products,
511 US 244, 263 (1994) and several provisions of the Constitution, among them, the Ex Post
Facto Clause, the Contract Clause, and the Fifth Amendment's Due Process Clause.
50
   Robinson v. Crowncork & Seal Co., Inc., No. 06-0714 (Tex. 10/22/2010) citing article I,
section 16 of the Texas Constitution; Ex parte Abell, 613 S.W.2d 255, 260 (Tex. 1981)); McCain
v. Yost, 284 S.W.2d 898, 900 (Tex. 1955).
51
   McDonald v. City of Chicago, Illinois, No. 08-1521 (U.S. 06/28/2010) quoting District of
Columbia v. Heller, 554 US 570 (2008).
52
   Barber v. Texas Dept. of Transportation, 49 S.W.3d 12 (Tex.App. Dist.3 04/05/2001)(The
right to acquire and own property, and to deal with it and use it as the owner chooses, so long as
the use harms nobody, is a natural right. It does not owe its origin to constitutions. It existed
before them. It is a part of the citizen's natural liberty-an expression of his freedom, guaranteed
as inviolate by every American Bill of Rights); City of Houston v. Johnny Frank's Auto Parts,
                                                31
          assumes to be a police regulation but deprives the citizen of the use of his

          property under the pretense of preserving the public health, safety,

          comfort or welfare, when it is manifest that such is not the real object and

          purpose of the regulation, will be set aside as a clear and direct invasion

          of the right of property without any compensating advantages53.

              Accordingly, Mr. Perez respectfully demands the vested property and

          legal rights identified hereinabove. The vested rights identified herein are

          well known to Defendant Mari Robinson, Esq ; she acted without legal

          authority and had a ministerial duty to abstain from transgressing upon

          the same54.

                                                    III

                       SOVEREIGN IMMUNITY DOES
                   NOT BAR A SUIT PURSUANT TO 2001.038
           TO CHALLENGE OR RESTRAIN AN AGENCY’ S RULE THAT
           IS BEYOND THE AGENCY’ S CONTITUTIONAL AUTHORITY

              On or about March 7th, 201455 the Defendants adopted new

          administrative rules of general applicability. One new rule                   defines



480 SW 2d 774 (Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.). quoting Spann v.
City of Dallas, 111 Tex. 350, 235 S.W. 513 (1921).
53
   Id, see also Cooley, Const.Lim. 248
54
   Kobza v. Kutac, 109 S.W.3d 89 (Tex.App. Dist.3 05/30/2003) quoting Downing v. Brown,
935 SW 2d 112, 114 (Tex. 1996)
55
   ROA Vol 2 of 2 pp 70-73 (Defendant’s Exhibit A is a statement or declaration against interest
therefore admissible evidence, Conner v. Johnson, No. 2-03-316-CV (Tex. App. Dist.2
10/28/2004) citing Tex. R. Evid. 803(24)
                                               32
          “administrative default” as those instances where a litigant challenges (a)

          the agency’s institutional competence to resolve the particular type of issue

          presented, such as the constitutionality of a statute; (b) the adequacy of the

          agency procedure and (c) the agency authority to grant the type of relief

          requested56.

              The newly adopted second rule allows the agency to revoke the right to

          earn a living to those who the agency deems are guilty of an “administrative

          default” as defined above even though there has been no finding that the

          individual is a danger to the health and welfare of the citizens57.

              Subsequently, relying upon those newly adopted administrative Rules

          the Defendants deprived and/or seized Mr. Perez’ right to earn a

          livelihood.58

              The Administrative Procedure Act (APA) PA defines a "rule" as


56
   But the Third District Court of Appeals and the US Supreme Court have ruled that litigant
have a right to do so, Mitz v. Texas State Board of Veterinary Medical Examiners, 278 S.W.3d
17 (Tex.App. Dist.3 11/14/2008) citing Texas State Bd. of Pharm. v. Walgreen Tex. Co., 520
SW 2d 845 (Tex. App.--Austin 1975, writ ref'd n.r.e.) , McCarthy v. Madigan, 503 US 140,
146-48 (1992))
57
   Barber v. Texas Dept. of Transportation, 49 S.W.3d 12 (Tex.App. Dist.3 04/05/2001)(The
right to acquire and own property, and to deal with it and use it as the owner chooses, so long as
the use harms nobody, is a natural right. It does not owe its origin to constitutions. It existed
before them. It is a part of the citizen's natural liberty-an expression of his freedom, guaranteed
as inviolate by every American Bill of Rights); City of Houston v. Johnny Frank's Auto Parts,
480 SW 2d 774 (Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.) quoting Spann v.
City of Dallas, 111 Tex. 350, 235 S.W. 513 (1921).
58
   ROA , Vol 1 of 2, pp 4-5, 18, 19 , 21, 33, 34, 35, 53; Vol 2 of 2 pp 61-62, 70-73 (Defendant’s
Exhibit “A” is a statement or declaration against interest therefore admissible evidence, Conner
v. Johnson, No. 2-03-316-CV (Tex.App. Dist.2 10/28/2004) citing Tex. R. Evid. 803(24)
                                                33
          follows59: “ A state agency statement of general applicability that : (i)

          implements, interprets, or prescribes law or policy; or (ii) describes the

          procedure or practice requirements of a state agency; (B) includes the

          amendment or repeal of a prior rule; and (C) does not include a statement

          regarding only the internal management or organization of a state agency

          and not affecting private rights or procedure.").

              The March 7th, 2014 ruling is not a “contested case” because the

          Texas Supreme Court has ruled that at common law a “certificate of

          qualification or “license” meant that the practitioner graduated from an

          accredited university60. That at common law a “certificate of

          qualification” or “license” meant that the practitioner was to be left alone

          unless he committed malpractice61. At common law , the only police

          power affecting the medical profession was Texas Constitution Article

          XVI, § 3162. The Defendants have failed or refused to allege that Mr.




59
   Texas Dep't of State Health Servs. v. Balquinta, 429 SW 3d 726, 747 (Tex. App-Austin 2014,
pet. filed);Tex. Gov't Code § 2001.003(6)
60
   In The State v. James A. Goldman the Texas Supreme Court ruled that once a medical
practitioner has shown, as here, that he graduated from an accredited university he was to be
left alone unless he commits malpractice.
The State v James A. Goldman, 44 Tex. 104 (1875)
61
   id
62
   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.
                                              34
         Perez committed medical malpractice.

             The March 7th, 2014 ruling is not a “contested case” because at common

         law, only the district courts could revoke the right to practice a medical

         profession pursuant to the Medical Practice Act63 .

             The March 7th, 2014 ruling is not a “contested case” because it does not

         include the mandatory “concise and explicit statement of the underlying

         facts supporting the findings”64. The Defendants failure or refusal to

         disclose the underlying facts constitute reversible error. 65

                The March 7th, 2014 ruling is not a “contested case” because at

         common law the supervising physician was legally responsible for the

         medical acts delegated to physician assistant. In 1983, the Fifth Circuit

         ruled that :

             “a person licensed to practice medicine shall have the authority to
         delegate to any qualified and properly trained person or persons acting
         under the physician's supervision any medical act which a reasonable and
             prudent physician would find is within the scope of sound medical
         judgment to delegate if, in the opinion of the delegating physician, the act
          can be properly and safely performed by the person to whom the medical
          act is delegated and the act is performed in its customary manner, not in
         violation of any other statute, and the person does not hold himself out to
            the public as being authorized to practice medicine. The delegating

63
   Mann v. Texas State Board Medical Examiners , 403 SW 2d 218 (Texas Appellate Austin)
affirmed 413 S.W.2d 382, (03/29/67) quoting Scott v. Texas State Board of Medical Examiners,
384 S.W.2d 686, 690 (Tex. Sup. 1964)
64
   Railroad Commission of Texas v. WBD Oil & Gas Co., 104 S.W.3d 69 (Tex.
02/13/2003)citing § 2001.141
65
   Gibson v. Texas Municipal Retirement System, 683 SW 2d 882 (Tex. App.--Austin 1985, no
writ) citing Bay City Federal Savings and Loan Ass'n. v. Lewis, 474 SW 2d 459 (Tex. 1971);
                                             35
            physician shall remain responsible for the medical acts of the person
                 performing the delegated medical acts.” (emphasis added)

             On August 24th, 1990 , the Texas Medical Board admitted that

          Physicians had the common law right to delegate medical acts to physician

          assistants66 and that The delegating physician remained responsible for

          the medical acts of the person performing the delegated medical acts.”

          (emphasis added)67 who had graduated from a program accredited by the

          Committee on Allied Health Education and Accreditation of the Council on

          Medical Education of the American Medical Association68 or a person who

          has passed the examination given by the National Commission on the

          Certification of Physician Assistants69.

             The March 7th, 2014 ruling is not a “contested case” because a

          “contested case” within the meaning of the US Constitution includes, inter

          alia, the right to confront , and compel the attendance of , adverse

          witnesses 70. But see Texas Occupational Code § 164.007(c), it prevents a



66
   Texas Register, Volume 15, Number 65, Pages 4941 , August 24, 1990 citing 22 TAC 190.
67
   Id citing 22 TAC 185.4
68
   Texas Constitution Article 16 § 31. Practitioners of Medicine : The Legislature may pass
laws prescribing the qualifications of practitioners of medicine in this State, and to punish
persons for mal-practice, but no preference shall ever be given by law to any schools of
medicine.
69
   Id citing §185.2
70
   Payne v. Texas State Board of Medical Examiners, No. 03-07-00558-CV (Tex.App. Dist.3
03/12/2009); Rector v. Texas Alcoholic Beverage Commission, 599 S.W.2d 800, (Tex. 1980);
Wolff v. McDonnell, 418 US 539, 559 (1974).
                                              36
          medical provider , like Mr. Jose A. Perez , from confronting or cross

          examining adverse witness71.

                 The March 7th, 2014 ruling is not a “contested case” because none

          of the statutes referenced by the Defendants were in effect in 1994. The

          Texas72 Constitutions prohibit the application of any ex post facto law

          which affect or impairs vested or legal rights .

            The March 7th, 2014 ruling is not a “contested case” because before

          demanding that Mr. Perez appear at the State Office of Administrative

          Hearing or the Physician Assistant Board there should have been a judicial

          or neutral determination of probable cause that the Mr. Perez was guilty of

          an offense.73 The Fourth Amendment applies to the states through the

          Fourteenth Amendment74. Assuming, arguendo, that the TMB has

          administrative jurisdiction over Mr. Perez then Fourth Amendment applies

          to administrative agencies75. Probable cause means that there is a fair


71
   ROA Vol 2 of 2, pp 62 fn 1; In re Texas Medical Board, 315 S.W.3d 177 (Tex.App. Dist.6
06/01/2010); see also the website of the organization known as “Texans for Patients' &
Physicians' Rights” , Mission Statement, http://www.txppr.com/index.cfm
72
   Subaru of Am., Inc. v. David McDavid Nissan, Inc. 84 S.W.3d 212, 219 (Tex. 2002) citing
Tex. Const. art. I, § 16.
73
   Texas Department of Public Safety v. Caitlin Elizabeth Adkins, No. 11-10-00298-CV;
(Tex.App. Dist.11 08/16/2012) citing State v. Woodard, 341 SW 3d 404, 411 (Tex. Crim. App.
2011) ); US Constitution Fourth Amendment; Texas Constitution Article 1§ 9.
74
   Mapp v. Ohio, 367 US 643 , 367 US 643, 655 (1961),
75
   United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (U.S. 01/23/2012) citing Katz v.
United States, 389 US 347 , 351 (1967), Club Retro LLC v. Hilton, 568 F.3d 181 (5th Cir.
05/06/2009)Marshall v. Barlow's, Inc.,436 US 307, 312-313, 56 L. Ed. 2d 305, 98 S. Ct. 1816
(1978)
                                             37
         probability that an offense has been committed76. At the time the State

         Office Of Administrative Hearings dismissed the TMB’s complaint it had

         made no findings of probable cause77.

         The TMB has not, and cannot allege that there was a patient-physician

         assistant relationship between the alleged informer and Jose A. Perez.

         Texas Courts have ruled that a physician is under no legal obligation to

         practice his profession or render services to whomsoever may request

         them78. They have also ruled that a physician is not to be penalized for

         arbitrarily refusing to respond to a call of a person even urgently in need of

         medical or surgical assistance provided that the relation of physician and

         patient does not exist at the time the call is made or at the time the person

         presents himself for treatment79. The mere fact that a doctor is "on call"

         does not in itself impose any duty80.

             The Appellees/defendants have not and can not claim that Mr. Perez was

         under contract to perform services for the benefit of the informer81.The


76
   Probable cause means reasonable suspicion, viewed under the totality of the circumstances.
Terry v. Ohio, 392 US 1, 22 (1968); Alabama v. White, 496 US 325, 328-331 (1990).
77
   State Office Of Administrative Hearings , Order No. 14, May 8th, 2013, Appendix Document #
5 , FN 2
78
       Holland St. John, M.D v. Marty Howard Pope and Sally Bates Pope, 901 S.W.2d 420 (Tex.
06/08/1995) ; Salas v. Gamboa, 760 S.W.2d 838, 840 (Tex.App.--San Antonio 1988, no writ)
quoting Childs v. Weis, 440 S.W.2d 104, 107 (Tex. Civ. App.--Dallas 1969, no writ).
79
       . Id. See 61 Am. Jur. 2d Physicians and Surgeons § 14, 158.
80
       St. John, 901 S.W.2d at 424.
81
   Lopez v. Aziz, 852 S.W.2d 303, 306 (Tex. App.--San Antonio 1993, no writ).
                                             38
         Appellees/defendants have not, and cannot,              identify the statute or

         administrative rule which identifies the steps a medical provider must take

         in order to refuse to treat a patient while avoiding behavior which can be

         construed as “unprofessional or dishonorable conduct that is likely to

         deceive, defraud or injure the public”.

             A rule that is not properly promulgated under mandatory APA

         procedures is invalid82. The Defendants have not, and cannot, claim that the

         rules have been promulgated.

             The March 7th, 2014 Ruling obviously "implements, interprets, or

         prescribes law or policy," reflecting the Board's construction and

         application of Rules § §187.27, 185.17(3) & (9). Secondly, the statement

         also impact private rights and not merely internal agency management or

         organization.

             The Defendants’ March 7th, 2014 ruling, somehow, concluded, that Mr.

         Perez’ numerous complaints, motions and Constitutional objections were

         not meritorious83, within the meaning of Rule §187.27(b)(3)(C). It also

         construed Rule §187.27(b)(3)(C) as authorizing revocation of Mr. Perez’


82
   Texas State Board of Pharmacy v Witcher, 447 SW 3d 520 (3rd DCA- October 31, 2014) citing
El Paso Hosp. Dist. v. Texas Health & Human Servs. Comm'n, 247 S.W.3d 709, 714 (Tex.
2008); APA § 2001.035(a);
83
   Hamilton v. Washington, NO. 03-11-00594-CV (3rd DCA - December 23, 2014
 Mitz v. Texas State Bd. of Veterinary Med. Exam'rs, 278 SW 3d 17, 22 (Tex. App.-Austin
2008, pet. dism'd) (agencies have no power to determine the constitutionality of statutes)
                                            39
          right to earn a living , the absence of corroborating underlying facts

          notwithstanding.

              Considering the foregoing, Mr. Perez respectfully submits that

          construing the Board's policy as a "rule" is consistent with the Supreme

          Court's instruction that the intent of the agency be considered , the

          prescriptive nature of the policy, and the context in which the agency

          statements were made.84

              Although an "'agency is not bound to follow its decisions in contested

          cases in the same way that a court is bound by precedent, an agency is

          required by courts to explain its reasoning when it appears to the reviewing

          court that an agency has departed from its earlier administrative policy or

          there exists an apparent inconsistency in agency determinations85.

           In conclusion, Section 2001.038 of the Administrative Procedure Act

       allows a party to seek declaratory relief challenging the "validity or

       applicability of a rule86 if it is alleged, as here, that the rule or its threatened



84
   Combs v. Entertainment Publications, Inc., 292 S.W.3d 712 (Tex.App. Dist.3 06/12/2009)
citing Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 443 (Tex. 1994)).
85
   Austin Chevrolet, Inc. v. Motor Vehicle Bd., 212 S.W.3d 425, 438 (Tex. App.-Austin 2006,
pet. denied) (quoting Flores v. Employees Retirement Sys. of Tex., 74 S.W.3d 532, 533-34 (Tex.
App.-Austin 2002, pet. denied)).
86
   "Texas law recognizes the right to judicial review of an administrative order when the same
adversely affects a vested property right, and/or (3) the order otherwise violates constitutional
rights" General Servs. Comm'n v. Little-Tex Insulation Co.,39 SW 3d 591, 599 (Tex. 2001);
City of Sherman v. Pub. Utility Comm'n of Texas, 643 SW 2d 681, 686 (Tex. 1983).
                                               40
       application interferes with or impairs, or threatens to interfere with or

       impair, a legal right or privilege of the plaintiff87.

                                                     IV

             FAILURE TO SUE AN ESSENTIAL PARTY IS A NON-
        JURISDICTIONAL DEFECT WITHIN THE MEANING OF, INTER
          ALIA, GOVERNMENT CODE 2001.176 AND RULE 39, TRCP


               In their “Defendants’ Brief In Support of Their First Amended Plea to

       the Jurisdiction “ the Defendants claimed that the Trial Court lacked subject

       matter jurisdiction over all Mr. Perez’ claims” because Mr. Perez failed to

       sue the Physician Assistant Board88.

           The Defendants must prove that the Texas legislature has clearly

       indicated that failure to sue the Physician Assistant Board (PAB) is

       jurisdictional89. They have failed or refused to do so.

            In their “Defendants’ Brief In Support of Their First Amended Plea to

       the Jurisdiction “ the Defendants claim that the Trial Court lacks subject



87
   The Third District Court of Appeals has interpreted this section as a waiver of sovereign
immunity, Texas Dep't of State Health Servs. v. Balquinta, 429 S.W.3d 726, 744 (Tex. App.-
Austin 2014, pet. filed); Combs v. Entertainment Publ'ns, Inc., 292 SW 3d 712, 720 (Tex. App.--
Austin 2009, no pet.) see Texas Logos, L.P. v. Texas Dep't of Transp., 241 S.W.3d 105, 123
(Tex. App.-Austin 2007, no pet.) (holding that "section2001.038 is a grant of original jurisdiction
and, moreover, waives sovereign immunity").
88
   ROA Vol 1of 2, p 174 - Defendants’ Brief In Support of Their First Amended Plea to the
Jurisdiction P 4, II A.
89
   Scott v. Presidio I.S.D., 266 S.W.3d 531 (Tex.App. Dist.3 08/28/2008); citing Zenith Star Ins.
Co. v. Wilkerson, 150 S.W.3d 525, 533 (Tex. App.--Austin 2004, no pet.);
                                                41
       matter jurisdiction over all Mr. Perez’ claims” because Mr. Perez failed to

       sue the Physician Assistant Board90. A "defect of parties" refers to joinder

       problems involving necessary or indispensable parties91. A complaint of

       "defect of parties" must be raised by verified objection pursuant to Rule

       93(4), Tex. R. Civ. P. 92. The Defendants failed or refused to file a verified

       objection accordingly they forfeited the issue93.

          In their Defendants’ Brief In Support of Their First Amended Plea to the

       Jurisdiction “ the Defendants claim that the Trial Court lacks subject matter

       jurisdiction over all94 Mr. Perez’ claims” because Mr. Perez failed to sue the

       Physician Assistant Board (PAB) 95 as allegedly required by 2001.176. But

       the Third District Court of Appeals has ruled that such a failure is not

       jurisdictional96.




90
   ROA p 174 - Defendants’ Brief In Support of Their First Amended Plea to the Jurisdiction P 4,
II A.
91
   IN Re Clifford Hall, NO. 14-14-00062-CV , (14th DCA - May 28, 2014) citing CHCA E.
Houston, L.P. v. Henderson, 99 SW 3d 630, 633 (Tex. App.-Houston [14th Dist.] 2003, no pet.).
92
   In re Clifford Hall, supra citing Allison v. Nat'l Union Fire Ins. Co., 703 SW 2d 637, 638
(Tex. 1986) (per curiam).
93
   id
94
   ROA p 174- Mr. Perez’ failure to add the PAB as a party is the only occasion in which the
defendants claimed that the Court lack subject matter jurisdiction over all his claims.
95
   ROA p. 174; Defendants’ Brief In Support of Their First Amended Plea to the Jurisdiction P 4,
II A.
96
    Sierra Club v. Tex. Natural Res. Conservation Comm'n, 26 SW 3d 684, 688 (Tex. App.-
Austin 2000) (holding that section 2001.176(b)(2)'s service requirement is not jurisdictional
under Dubai ), aff'd on other grounds, 70 SW 3d 809, 811, 814-15 (Tex. 2002)
                                              42
          At any rate, failure to join an essential party is no longer a jurisdictional

       defect97. Once a person’s or entity’s absence is identified as being needed for

       a just adjudication of the claims before the court, the current version of Rule

       39 directs that the trial court "shall order that he be made a party."98

            Accordingly , the trial court erred when it dismissed the complaint

       because Mr. Perez did not sue the PAB.

                                                  V

                THE DOCTRINE OF EXCLUSIVE JURISDICTION
                     DOES NOT APPLY, WHERE , AS HERE ,
               (a) THERE ARE CONSTITUTIONAL CLAIMS, AND
          (b) THE AGENCY HAS ALREADY MADE A FINAL DECISION

          The Defendants claimed that the trial court had no jurisdiction because

       the PAB has exclusive jurisdiction99. The Exclusive or primary jurisdiction

       does not require dismissal where, as here, there are Constitutional and Title

       42 Claims100. Nor , where as, here, the agency has already made the final

       decision on the issue101 .

97
   Kodiak Resources, Inc. v. Smith, No. 09-10-00362-CV (Tex.App. Dist.9 02/16/2012) citing
Cooper v. Tex. Gulf Indus., Inc., 513 SW 2d 200, 203-04 (Tex. 1974); Behzad Khalilnia v.
Federal Home Loan Mortgage Corporation, No. 01-12-00573-CV (Tex.App. Dist.1 03/21/2013)
98
   Kodiak Resources, Inc. and Bbx Operating, L.L.C v. Patricia Ann Smith, Beverly Lee Smith
Sunday, Melody Koch, Keith, No. 09-10-00362-CV (Tex.App. Dist.9 02/16/2012)
99
   ROA Vol 1 of 2, p. 174; Defendants’ Brief In Support of Their First Amended Plea to the
Jurisdiction P 4, II A.
100
    Gutierrez v. Laredo Independent School Dist., 139 S.W.3d 363 (Tex.App. 05/12/2004); Tex.
Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 SW 2d 88, 90 FN3 (Tex. 1992)
101
    Railroad Comm'n v. ARCO Oil & Gas Co., 876 SW 2d 473, 478 (Tex. App.-Austin 1994,
writ denied) ; ( Cypress-Fairbanks Indep. Sch. Dist. v. Texas Educ. Agency, 797 S.W.2d 336,
342-43 (Tex. App.-Austin 1990)
                                             43
                                                     VI

           ASSUMING, ARGUENDO, THAT THE PAB HAS EXCLUSIVE
               ADMINISTRATIVE JURISDICTION THE SAME IS
            VOID PURSUANT TO TEXAS EX POST FACTO STATUTES

          The Texas Constitutions prohibits the application of ex post facto laws102.

          A retroactive statute violates the Constitutions if, when applied, it takes

          away or impairs vested rights acquired under existing law103.

              The Texas Medical Board seeks to impose administrative penalties

          pursuant to ex post facto laws. The facts show that Mr. Jose A. Perez

          presented his academic credentials to the Texas Medical Board, and the

          same were accepted on , September 22nd, 1994, 21 years ago. The Texas

          Physician Assistant Board ’s administrative jurisdiction104 began , and the

          amended licensing act105 became effective , on Sept. 1, 1999.

              In their administrative complaint the TMB now106 claims that it has the

          authority to revoke Mr. Perez “license”, pursuant to Texas




102
      ROA pp 24-26 Abigail Elizabeth Young v. the State of Texas, No. 14-10-00646-CR
(Tex.App. Dist.14 01/10/2012) citing U.S. Const.. art. I, ' 10, cl. 1; Tex. Const. art. I, ' 16.
103
         Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212 (Tex.
06/27/2002); Ex parte Abell, 613 S.W.2d 255, 260 (Tex. 1981); McCain v. Yost, 284 S.W.2d
898, 900 (Tex. 1955). A vested right is a property right, which the Constitution protects like any
other property. Middletown v. Texas Power & Light Co., 185 S.W. 556, 560 (Tex. 1916).
104
      § 204.051. TEXAS PHYSICIAN ASSISTANT BOARD. Acts 1999, 76th Leg., ch. 388, §
1, eff. Sept. 1, 1999
105
      § 204.001. SHORT TITLE. This chapter may be cited as the Physician Assistant Licensing
Act. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
106
    Initially the TMB was seeking to impose a $3000.00 penalty
                                                44
          Administrative Code , Title 22, Part 9, Chapter 190 , which became

          effective in 2003.107.

             The TMB claims that Mr. Perez violated , Texas Administrative Code

          204.302(4) which purportedly penalizes “unprofessional or dishonorable

          conduct that is likely to deceive, defraud or injure the public” and which

          became effective 5 years AFTER Mr. Perez began practicing108. Mr.

          Perez, adamantly, but respectfully objects. The Physician Assistant Board

          ‘s administrative jurisdiction began on September 1st, 1999.Texas

          Administrative Code §185.17 became effective on November 3, 2002,

          27 - TexReg 10027 ; Texas Occupations Code § 204.302 became effective

          on September 1, 1999. Texas Occupations Code - Section 164.011(b) -

          became effective on September . 1, 1999.

             Secondly, the US109 and Texas110 Supreme Courts have ruled that “It is

          the right of every citizen of the United States to follow any lawful

          calling, business, or profession they may choose, subject only to such

          restrictions determined by the state to be necessary for the health and

          safety of its citizens111. The Texas Board of Medicine has not , and


107
     The provisions of this §190.1 adopted to be effective November 30, 2003, 28 TexReg 10496;
amended to be effective January 20, 2009, 34 TexReg 342
108
    Acts 1999, 76th Leg., ch. 388, 1, eff. Sept. 1, 1999.
109
    Dent v. State of W. Va.,129 US 114, 121-22 (1889)
110
    Industrial Accident Bd. v. O'Dowd, 303 S.W.2d 763 (Tex. 1957))
111
    Dent v. State of W. Va.,, 129 U.S. 114 (1889),
                                              45
          cannot, claim that the matter before SOAH is related to the Texas Health

          and Safety Code112. The Texas Department of Health (TDH) has exclusive

          jurisdiction over all matters concerning the Health and Safety of

          Texans113.

              Furthermore, whether or not something is necessary is an issue of fact

          for the jury which precludes summary judgment114.

                                                    VII

                     ASSUMING, ARGUENDO THAT
                FAILURE TO SUE AN ESSENTIAL PARTY IS
         JURISDICTIONAL THE DISMISSAL IS WITHOUT PREJUDICE

          A dismissal with prejudice is improper when the plaintiff is capable of

       remedying the jurisdictional defect115. Once a person’s or entity’s absence is

       identified as being needed for a just adjudication of the claims before the

       court, the current version of Rule 39 directs that the trial court "shall order

       that he be made a party."116




112
     2005 Texas Health & Safety Code Chapter 12.
113
     2005 Texas Health & Safety Code § 12.001
Sec. 12.001. GENERAL POWERS AND DUTIES. (a) The board has
general supervision and control over all matters relating to the
health of the citizens of this state. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
114
    Zimmer v. Miller Trucking Co., 743 F.2d 601 (8th Cir. 09/13/1984)
115
    Trevino v. State, 03-12-00060-CV (Tex.App. Dist.3 08/07/2013) citing Harris County v.
Sykes, 136 S.W.3d 635 (Tex. 05/28/2004)
116
    Kodiak Resources, Inc. and Bbx Operating, L.L.C v. Patricia Ann Smith, Beverly Lee Smith
Sunday, Melody Koch, Keith, No. 09-10-00362-CV (Tex.App. Dist.9 02/16/2012)
                                               46
                                                VIII

                      A FEDERAL AND STATE
               “TAKINGS” OR “SEIZURE OF PROPERTY “
              PROCEEDING APPLIES TO ALL SPECIES OF
          PROPERTY WITHOUT EXCEPTIONS OR LIMITATIONS


         In the trial court the Defendants admitted that they deprived, and or seized,

      Mr. Perez’ right to earn a living as a physician assistant without

      compensation117. Nevertheless, they claimed that Mr. Perez failed to allege

      any facts which would show that the legislature waived sovereign immunity.

      The Defendants did not, and could not , allege that the abridgement and/or

      seizure was necessary for the preservation of the health, safety, and

      welfare of the public118.

          Texas district courts are courts of general jurisdiction119. The Texas

       Constitution states that the jurisdiction of a district court "consists of

       exclusive, appellate, and original jurisdiction of all actions, proceedings, and

       remedies, except in cases where exclusive, appellate, or original jurisdiction




117
    ROA Vol 1 of 2, p 174 - Defendants’ Brief In Support of Their First Amended Plea to the
Jurisdiction P 4, II A.
118
    Barber v. Texas Dept. of Transportation, 49 S.W.3d 12 (Tex.App. Dist.3 04/05/2001) City of
Houston v. Johnny Frank's Auto Parts, 480 SW 2d 774 (Tex.Civ.App.-Houston [14th Dist.]
1972, writ ref'd n.r.e.). quoting Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513 (1921).
119
    Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000).
                                              47
       may be conferred by this Constitution or other law on some other court,

       tribunal, or administrative body120.

          In Dubai, the supreme court noted that courts of general jurisdiction are

       presumed to have subject-matter jurisdiction "unless a showing can be made

       to the contrary121. The defendants failed or refused to show that the district

       court had no jurisdiction over Mr. Perez’ complaint.

          In the trial court , Defendants argued that sovereign immunity protect the

       governmental entity from lawsuits for money damages122. In other words,

       Defendants’ position is that absent a rare act of the Legislature, property

       owners have no recourse to the courts when a state or local official

       wrongfully invade or seize property rights on the government’s behalf.

          That can not be the correct rule. As the Texas Supreme Court long ago

       recognized , “if the present suit could not be maintained without legislative

       consent, officials of the state would never have to condemn property

       legally. They could simply appropriate it , and the property owner would be

       entitled to no compensation unless the legislature granted him permission to

       sue123.



120
    id
121
    id quoting 12 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3522
(1984)).
122
    ROA p 174
123
    Griffin v. Hawn, 341 SW 2d 151, 152 (Tex. 1960)
                                              48
          Fortunately , the 1876 conventioneers , the Texas Constitution and US

       Supreme Court opinions124 hold that Defendants are not entitled to claim

       immunity from Mr. Perez’ suit. First, under State v. Hale, 136 Tex. 29,146

       SW 2d 731, 736. The Supreme Court of Texas speaking through Judge

       Sharp said:

         "The language used in Section 17 of Article 1 of the Constitution, supra,
        which says that no person's property shall be taken or damaged for public
          use without adequate compensation being made, has no exceptions or
          limitations attached thereto. It is a clear, definite statement of the rule
       which prevails in this State, which controls all the departments of the State
                 government; and the liability for adequate compensation
                   for private property taken or damaged for public use
             is not based upon the ground that the act of taking or damaging
         such property was done negligently or intentionally. * * *(emph added)

          Article 1, Section 17, of the Texas Constitution, Vernon's Ann.St.

       provides that "No person's property shall be taken, damaged or destroyed for

       or applied to public use without adequate compensation being made, unless

       by the consent of such person; * * *." Since there are no exceptions or

       limitations attached to the constitutional provision, the State itself is not

       exempt from its requirements125. Agencies created by the State are not

       exempt126.


124
    Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-
1151 (U.S. 06/17/2010) citing Lucas v. South Carolina Coastal Council, 505 US 1003, 1019
(1992)
125
    Brazos River Authority v. City of Graham, 335 SW 2d 247, 251 (Tex. Civ. App.--Fort Worth
1960), aff'd., 354 SW 2d 99 (1961).
126
    id
                                             49
             If there is a taking or a seizure , the constitution requires payment, even

         though the taking be for the purpose of promoting the public health, safety,

         morals or welfare and, therefore, involves an exercise of the police

         power127. Inverse condemnation proceedings apply when any type of

         property128 – i.e., physical, intangible129, intellectual – is affected by a

         governmental taking. Since 1922 it has been understood that a “regulatory

         taking” constitutes a taking requiring compensation130.

            Consequently , The Trial Court erred in dismissing Mr. Perez’ claims.

                                                   IX

                   MR. PEREZ OUGHT TO HAVE BEEN
               GIVEN LEAVE TO AMEND IN ORDER TO ALSO
           SUE MARIE ROBINSON IN HER INDIVIDUAL CAPACITY

      A plea to the jurisdiction challenges a trial court's authority to decide the subject

matter jurisdiction of a specific cause of action131. State government employees

may be sued in their individual capacities for damages, declaratory or injunctive




127
     San Antonio River Authority v. Garrett Brothers, 528 SW 266, 273 (Tex. Civ. App.--San
Antonio 1975, writ ref'd n.r.e.). citing Brazos River Authority v. City of Graham, 335 S.W.2d
247, 251 (Tex. Civ. App.--Fort Worth 1960), aff'd., 354 SW 2d 99 (1961)
128
    Renault v City of Houston , 415 S.W.2d 948 (10th DCA- 05/18/67) Lynch v. United States,
292 U.S. 571, 78 L. Ed. 1434, 54 S. Ct. 840. It also means this under the Texas Constitution.
See G.C. & S.F. Ry. Co. v. Fuller, 63 Tex. 467, 469 (1885)
129
    Nautilus , Inc. v Biosig Instruments, Inc. No. 13-369 (US Supreme Court - June 2, 2014)
(patents) ; Kent , et al, v Dulles, 357 US 116 (U.S. 06/16/1958)(Right to travel)
130
    Pennsylvania Coal Co. v. Mahon, 260 US 393 (1922),
131
    Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004)
                                              50
relief pursuant to 42 USC 1983132. Accordingly, Mr. Perez ought to have been

given leave to amend in order to also sue Ms. Marie Robinson in her individual

capacity133.

                                                  X

                 THE COURT ERRED IN DISMISSING
             MR. PEREZ’ ULTRA VIRES CLAIM AGAINST
      DEFENDANT MARI ROBINSON, JD IN HER OFFICIAL CAPACITY

            A suit against a state official for acting outside her authority is not barred

        by sovereign immunity134. In Heinrich, the Court affirmed the rule that

        suits, as here, for declaratory or injunctive relief against a state official to

        compel compliance with statutory or constitutional provisions are not suits

        against the State135.

                                                  XI

                 MR. PEREZ OUGHT TO HAVE BEEN
             GIVEN LEAVE TO AMEND IN ORDER TO ALSO
         SUE MARIE ROBINSON IN HER INDIVIDUAL CAPACITY




132
    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)
133
    ROA Vol 1 of 2 p 150; State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007); Miranda, 133
S.W.3d at 226-27.
134
    ROA Vol 1 of 2, p 150; Texas Parks and Wildlife Department v. the Sawyer Trust, No. 07-
0945 (Tex. 08/26/2011) citing City of El Paso v. Heinrich, 284 S.W.3d 366, 370-74 (Tex. 2009)
135
    Id citing Heinrich, 284 S.W.3d at 370-74.
                                             51
      A plea to the jurisdiction challenges a trial court's authority to decide the subject

matter jurisdiction of a specific cause of action136. State government employees

may be sued in their individual capacities for damages, declaratory or injunctive

relief pursuant to 42 USC 1983137. Accordingly, Mr. Perez ought to have been

given leave to amend in order to also sue Ms. Marie Robinson in her individual

capacity138.

                                            XII

                        THE TRIAL COURT ERRED IN NOT
                ADJUDICATING WHETHER THE PROPERTY HAS BEEN
                TAKEN AND/OR SEIZED WITHIN THE MEANING OF US
                 CONSTITUTION FOURTH AND FIFTH AMENDMENTS

           The Fifth Amendment forbids takings in the form of government

       regulations that effectively deprive a property of all economic value139.The

       Takings Clause applies to the states140. Where a State provides an adequate

       procedure for seeking just compensation, the property owner cannot claim a

       violation of the Just Compensation Clause until it has used the procedure and



136
    Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004)
137
    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)
138
    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.
139
    Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-
1151 (U.S. 06/17/2010) citing Lucas v. South Carolina Coastal Council, 505 US 1003, 1019
(1992).
140
    Chicago, B & Q.R. Co. v. Chicago, 166 U.S. 226 (1897),
                                             52
      been denied just compensation.141

         But the Williamson County ripeness doctrine "does not preclude state

      courts from hearing simultaneously a plaintiff's request for compensation

      under state law and a claim that, in the alternative, the denial of compensation

      would violate the Fifth Amendment of the Federal Constitution.142

         The Fourth Amendment, made applicable to the States by the Fourteenth

      Amendment143, provides in relevant part that the "right of the people to be

      secure in their persons, houses, papers, and effects, against unreasonable

      searches and seizures, shall not be violated . . . ." A "seizure" of property

      occurs when "there is some meaningful interference with an individual's

      possessory interests in that property144.

         The Fourth Amendment applies to civil as well as criminal seizures145,

      and the Supreme Court holds that an interference with individual property

      rights may be found to breach more than one provision of the Constitution146.



141
    Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172,
195 (1985).
142
    Town of Nags Head v. Toloczko, 12-1537 (4th Cir. 08/27/2013) citing San Remo Hotel, L.P.
v. City & Cnty. of S.F., Cal.,545 US 323, 346 (2005).
143
    Ker v. California, 374 U.S. 23, 30, 83 S.Ct. 1623, 1628 (1963),
144
    Severance v. Patterson, 566 F.3d 490 (5th Cir. 04/23/2009) citing United States v. Jacobsen,
466 U.S. 109, 113, 104 S.Ct. 1652, (1984); Soldal v. Cook County, 506 U.S. 56, 61, 113 S.Ct.
538, 543 (1992).
145
    Severance v. Patterson, 566 F.3d 490 (5th Cir. 04/23/2009) citing Freeman v. City of Dallas,
242 F.3d 642, 647 n.5 (5th Cir. 2001) (en banc),
146
    Id citing United States v. James Daniel Good Real Property, 510 U.S. 43, 49-50, 114 S.Ct.
492, 499 (1993).
                                               53
      Separate claims for constitutionally unreasonable seizure and taking of

      property may coexist147.

         Further, the courts have ruled more than once that substantive due process,

      procedural due process, equal protection and takings claims may be

      implicated simultaneously in various types of governmental actions that

      interfere with individual property rights148.

         The Fourth and Fifth Amendments both provide specific constitutional

      commands149. That they may have evolved through case law to overlap in

      providing remedies for some deprivations of property interests does not

      authorize the court to fail to apply one or the other provision150. Indeed, as

      Presley noted, the elements of a violation of the two amendments differ, with

      the touchstone of a takings claim being lack of just compensation and that of a

      seizure claim being its unreasonableness151. Further, § 1983 authorizes

      different damage measures for the claims152.




147
    Id citing Presley v. City of Charlottesville, 464 F.3d 480, 487 (4th Cir. 2006).
148
    Id citing Simi Inv. Co.. v. Harris County, 236 F.3d 240, 248-49 (5th Cir. 2000); John Corp. v.
City of Houston, 214 F.3d 573, 584-85 (5th Cir. 2000).
149
    id
150
    id
151
    Severance v. Patterson, 566 F.3d 490 (5th Cir. 04/23/2009)
152
    City of Monterey v. Del Monte Dunes at Monterey, 526 U.S. 687, 119 S.Ct. 1624, 143
L.Ed.2d 882 (U.S. 05/24/1999) citing Heck v. Humphrey, 512 U. S. 477, 483 (1994)
                                               54
                                                    XIII

         THE DEFENDANTS EXHIBIT “A” IS INADMISSIBLE EVIDENCE

      The Defendants submitted the Texas Physician Assistant Board “Default

      Order” as exhibit “A”. Mr. Perez objected pursuant to Texas Rule of Evidence

      401and 402 because the same is irrelevant.

           The Defendants have failed or refused to show that they have the

       Constitutional or statutory authority to revoke Mr. Perez right to work in his

       chosen profession on a default basis153.

           Furthermore, the document is inadmissible pursuant to Tex. R. Civ.

       Evid. 803(6)) because the custodian of records did not testify that the same

       was a record of regularly conducted business or activity and not prepared in

       anticipation of litigation154.

                                                    XIV

                     THE DEFENDANTS EXHIBITS “B”
                THROUGH “H” ARE INADMISSIBLE EVIDENCE


         Mr. Perez also objects to Exhibits B through E. Cause of Action No. D-1-

      GN-12-000798 was a parallel action filed in the Austin District Court



153
    Firstly, the board’s failure or refusal to disclose underlying facts constitutes reversible error,
Gibson v. Texas Municipal Retirement System,683 SW 2d 882 (Tex. App.--Austin 1985, no
writ) citing Bay City Federal Savings and Loan Ass'n. v. Lewis, 474 SW 2d 459 (Tex. 1971).
154
    Sholdra v. Bluebonnet Sav. Bank, FSB, 858 SW 2d 533, 535 (Tex. App.-Fort Worth 1993,
writ denied);
                                                  55
      seeking a declaratory judgment and injunctive relief . Texas considers

      parallel actions to be interlocutory in nature and not appealable155. The State

      Court dismissed the Perez’ lawsuit because the administrative action was still

      ongoing at the State Office of Administrative Hearings and therefore the

      Travis County District Court and the Third District Court of Appeals lacked

      subject matter jurisdiction pursuant to Texas Administrative Code

      Sec. 2001.171156. If a court lacks jurisdiction over the subject matter , any

      judgment rendered in that proceeding is void.157

         Mr. Perez also objected to Exhibits F through H. Mr. Perez’ filed a

      complaint for declaratory and injunctive relief in the United District Court

      (USDC) in the Western District Of Texas. . The USDC and the US Court of

      Appeals dismissed the complaint on June 25th , 2013 because they concluded

      that Mr. Perez case was before the Physician Assistant Board and therefore

      the Younger Abstention Doctrine deprived them of jurisdiction. If a court

      lacks jurisdiction over the subject matter , any judgment rendered in that

      proceeding is void.158



155
     Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972); Pelt v. State Bd. of Ins., 802 S.W.2d 822,
827 (Tex. App.-Austin 1990, no writ);
156
     § 2001.171. JUDICIAL REVIEW.
157
    Travelers Ins. Co. v. Joachim, 315 SW 3d 860, 862 (Tex. 2010); First State Bank Central
Texas v. Lakeway Regional Medical Center Development, LLC, 03-13-00058-CV (Tex.App.
Dist.3 02/20/2014)
158
    id
                                               56
                                                   XV

               MR. PEREZ OUGHT TO BE GRANTED LEAVE TO
                    AMEND DEFECTIVE ALLEGATIONS
               OF JURISDICTION IN THE APPELLATE COURTS

      Assuming arguendo, that Mr. Perez has failed to allege jurisdictional facts in the

trial court which would have shown that Texas has waived sovereign immunity,

Mr. Perez respectfully submits that, as to federal claims, he can amend defective

allegations of jurisdiction in the appellate courts pursuant to 28 USC § 1653159.

Concerning 28 USC 1653 The US Supreme Court has stated that :

 “The "complaint" filed in the District Court, see n. 5, supra, nowhere mentioned §
  1331 nor alleged the requisite amount in controversy. The facts alleged and the
claim asserted nonetheless were sufficient to demonstrate the existence of a federal
    question. See C. Wright, Law of Federal Courts 290-291 (2d ed. 1970). And
   although a complaint under § 1331 is fatally defective unless it contains a
proper allegation of the amount in controversy, see, e. g., Canadian Indemnity
   Co. v. Republic Indemnity Co., 222 F.2d 601 (CA9 1955), respondent now
 claims that the matter in controversy does exceed the requisite amount. Brief
    for Respondent on the Jurisdictional Issues 4-5. Defective allegations of
 jurisdiction may be amended, 28 U.S.C. § 1653. In view of our disposition of
     the case, however, no purpose would be served by requiring a formal
                    amendment at this stage.” (emph. Added)

      Mr. Perez fully understands that 28 USC 1653 does not apply to Texas

jurisprudence. But Mr. Perez respectfully submits that Texas jurisprudence, as

shown hereinbelow, has adopted the rationale used by Congress in adopting 28

USC 1653.


159
   Schlesinger v. Councilman, 420 US 738, 744 n. 9, 95 S. Ct. 1300, 1306 n. 9, 43 L. Ed. 2d
591 (1975); Smith v. United States,502 F 2d 512 , 519-20 (5th Cir. 1974).
                                              57
      Firstly, the Texas Supreme Court has ruled that a litigant may raise

Constitutional Claims for the first time on appeal160.

Mr. Perez has a substantive right of adequate, effective, and meaningful access to

the courts161. The right is protected by, inter alia, (a) the First Amendment right to

petition for redress of grievances; (b) the fourteenth amendment guarantees of

procedural and substantive due process162; (c) the Fifth Amendment due process

clause163, (d) and the Fourteenth Amendment equal protection clause164.

      Mr. Perez can raise the issue of subject matter jurisdiction for the first time on

appeal165. Hence, he should be able to amend defective allegations of jurisdiction

in the appellate courts pursuant to (a) Tex. Const. art. I, § 13166. The open courts

provision of the Texas Constitution provides: "All courts shall be open and every

person for an injury done him, in his lands, goods, person or reputation, shall have


160
     City of Dallas v. Heather Stewart, No. 09-0257 (Tex. 01/27/2012 [a constitutional] claim may
be asserted for the first time in the district court upon appeal of the agency order) citing 1 Beal ,
Texas Administrative Practice and Procedure § 9.3.1[c]
161
    Jackson v. Procunier, 789 F.2d 307 (5th Cir. 05/09/1986) citing Bounds v. Smith, 430 US 817,
821, 97 S. Ct. 1491, 1494, 52 L. Ed. 2d 72 (1977).
162
     id
163
      Christopher v. Harbury, 536 US 403, 415 n.12 (2002) (noting that the Supreme Court has
located the court access right in the Privileges and Immunities clause, the First Amendment
petition clause, the Fifth Amendment due process clause, and the Fourteenth Amendment equal
protection clause).
164
     id
165
     City of Houston v. Rhule, 12-0721 (Tex. 11/22/2013) quoting Univ. of Tex. Sw. Med. Ctr. at
Dall. v. Loutzenhiser, 140 SW 3d 351, 358 (Tex. 2004)).
166
    . Marino v. King, 355 SW 3d 629,634 (Tex. 2011) ("Constitutional imperatives favor the
determination of cases on their merits rather than on harmless procedural defaults.");
166
    Milestone Operating, Inc. v. ExxonMobil Corp., 388 SW 3d 307, 310 (Tex. 2012). A
Rodriguez v. Bolanos, 04-12-00287-CV (Tex.App. Dist.4 05/29/2013)
                                                 58
remedy by due course of law." Tex. Const. art. I, § 13. This requirement

"guarantees that a common law remedy will not be unreasonably abridged167 .

      Secondly, Mr. Perez respectfully submits that , as to all claims, he can amend

defective allegations of jurisdiction in the appellate courts pursuant to The Due

Process Clauses of the Texas Constitution and the Fourteenth Amendment to the

United States Constitution168 because in Texas an adjudication in the merits is

preferred169.

      Mr. Perez respectfully submits that, as to all claims, he ought to be allowed to

amend defective allegations of jurisdiction in the appellate courts pursuant to Tex.

R. App. P. Tex.R. App. P. 38.7170 , Rule 33.1(d)171 and Rule 2172. In Majid vs

Hussain the Third District Court of Appeals stated :

         “The rules further instruct us to construe the briefing requirements "liberally"
         and that "substantial compliance" is sufficient, as the point of having briefs in

167
     Elizabeth Rivera , as next of friend for MR NO. 13-0096 August 22, 2014 ; citing Tex.
Workers' Comp. Comm'n v. Garcia, 893 SW 2d 504, 521 (Tex. 1995).
168
    Simmons vs Outreach Health Community Care No. 08-13-00204-CV (8th DCA - November
7, 2014) (." U.S Const. Amend. XIV, § 1. ;Tex.Const. art. I, § 19.
169
    Milestone Operating, Inc. and Dstj, L.L.P v. Exxonmobil Corporation, No. 11-0647 (Tex.
10/26/2012) citing Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992).
170
    Majeed v. Hussain, No. 03-08-00679-CV (Tex.App. Dist.3 10/22/2010)
171
    Central Austin Apartments, LLC v. UP Austin Holdings, LP, NO. 03-13-00080-CV (3rd DCA-
December 8, 2014) (In a nonjury case, a complaint regarding the legal or factual insufficiency of
the evidence . . . may be made for the first time on appeal in the complaining party's brief)
172
    Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 12/04/1997) (we have instructed the courts of
appeals to construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to
appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a
rule citing Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex.1993); Marino v. King, 355 SW 3d
629,634 (Tex. 2011) ("Constitutional imperatives favor the determination of cases on their merits
rather than on harmless procedural defaults.");


                                                59
      the first place is merely to "acquaint the court with the issues in a case and to
      present argument that will enable the court to decide the case" and not to
      impose formal requirements as ends in themselves. Id. R. 38.9. The rules
      further contemplate that appellate courts will afford parties the opportunity
      to cure any formal or substantive briefing defects before disposing of the
      appeal based on such a defect rather than the merits. See id.; see also
      Inpetco, Inc. v. Texas Am. Bank/Houston, 729 S.W.2d 300, 300 (Tex. 1987)
      (regarding parallel provisions of former appellate rules). Finally, "[a] brief
      may be amended or supplemented whenever justice requires, on whatever
      reasonable terms the court may prescribe." See Tex. R. App. P. 38.7.” (emph
      added)
                                       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 “ Amended
Plaintiff/Appellant’s Initial Appellant Brief “ was served by emailing a copy
thereof via the State efiling system on this 7th Day of March 2015 to:

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


                                          60
Respectfully Submitted,
_____/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 14,879 which includes all words contained in this

brief, excepting the cover page and index of authorities.




                                         61
                           No. 03-14-00644-CV




                 IN TIlE TmRD COURT OF APPEALS
                          AUSTIN, TEXAS


                             JOSE A. PEREZ

                                Appellant

                                    Vs.

TEXAS :rv1EDICALBOARD and MARl ROBINSON JD, in her Official Capacity

                                Appellees.



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


                     Appellant's Amended Appendix




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

   1- September 18th, 2014 Final Judgment
   2- September 5th, 2014 Order Granting the Defendant's Plea to the Jurisdiction
   3- Correspondence From the Court dated July 3rd, 2014
   4- Texas Medical Board Request to Docket Case XXX-XX-XXXX.PA
   5- ALJ's Order Dismissing Case


                           CERTIFICATE OF SERVICE

   It is hereby certified that a copy of the foregoing" Plaintifti'Appellant's
Amended Appendix " was served by emailing a copy thereof via the State efiling
system on this 7th Day of March 2015 to:

Ted A Ross, Esq
Assistant Attorney General
POBox 12548
Austin, TX 78711-2548
ted.ross@texasattorneygeneral.gov
Margaret.Evins(a),texasattorneygeneral.gov



--~ /S/ Jose A. Perez -------------------
                                                                                8I(t4269 PG96

         Notice sent: final   ;••w-rIOCUtOfY   None                                                         FiredIn The District Cour
                                                                                                             .,f Tf'3v;s County, Texas'
    .'   DispParti-.                               _



                                                                                                                         ~.
"
         Dtsp code: CW   I CLS                 _
                                                                                                           .\, SEt' i ~            JF
         Redact pgs:,-------t~..--
         Judge   D~~ _ Clerk           t\f
                                                           CAUSE NO. D-I-GN-14-001171                        ._-__  !~\)jri9U~:
                                                                                                           ·~II!Jii.1              cieri
                    JOSE A. PEREZ,                                             §                IN THE DISTRICT COURT OF
                                                         Plaintiff,            §
                                                                               §
                    v.                                                         §                   TRA VIS COUNTV~ TEXAS
                                                                               §
                    TEXAS MEDICAL BOARD and                                    §
                    MARl ROBINSON., J.D., in ber                               §
                    Official Capacity                                          §
                                       Defendllnts.                            §                  53RD JUDICIAL DISTRICf

                                                                  FINAL JUDGMENT

                              Pursuant to the Court's order granting Defendants' Plea to the Jurisdiction. IT IS

                   HEREBY ORDERED ..ADJUDGED AND DECREED that all of Plaintiffs claims in the·

                   captioned proceeding are hereby dismissed with prejudice.

                              IT IS FURTHER ORDERED that all costs are taxed against Plaintiff.

                              Signed on this           I <6 day of September, 2014.


                                                                      Judge Presiding
~lZsellt        Lit•.}!   """tIll~,,~     e>          DC
D1sPPlII'I{es~-~:z.
0I5P~. @I'as 4u I
Redact pgo: -
~_t.1cC)(                          t::AtL
           JOSE A. PEREZ_
                      PlaintitT.
           v.
                                                                              TRAVIS COUNTY. Tf.XAS
           TF.xAS MEDICAL BOARD. and
           MARl ROBINSON, in bcr official
           capacir.y.
                    DefendanlS.                                               353111 JUDICIAl. DlSTRlCT


                            ORDER GRAN11NG DEfENDANTS'                 PI.EA TO THE JURISDICTION

                      Came      011     lOr oonsideralion the First Amended Plea   10 lbe:   Jurisdiction of ~fendants
           Texas Medical Board and Marl Rubinson, After consiIkriRlt \be same: and lbe n:le\'anl pleadin~
           and briefing 00 file herein. th~ Coon is ot'tlle opinion thai Defendants' Pica should be grnnu:d.
                      IT IS THEREFORE ORDERED. ADJllOOED AND DECREED !hal Defendants' Fin:t
           Am~nded Plea to the Jurisdiction isGRANTED.


                      SIGNED on the          U     day of Seplcmher. 2014.




                                                                                                                         91
                                                                               foiled ill Tr!c Distrk:   (.v~l1t
                                                                                '-If Travil; CQunty. '!'e I(~!l:'




  DARLENE BYRNE
      Judge
       (512) 85+-9~B                                                                          JAMES FERRELL
                                                                                                 Court Clerk
KATI' GALLAGHER PARKER                                                                          (512) 85+5846
       Staff Attomey
       (512) 85+4915                                                                      MEANEITE SALGADO
                                                                                           Official Court Reporter
      RENE SALINAS                     126TH DISTRICT COURT                                     (512) 85-1-7848
  Court Operations Officer
       (512) 85-1-9891                    TRAVIS COUNTY COURTHOUSE
                                                  P. O. BOX 1748
                                              AUSTIN, TEXAS 78767
                                                FAX: (512) 854--9780


                                               July 3,2014

   Mr. Ted A Ross                                            Mr. Jose A. Perez
   Assistant Attorney General                                34 Candle Pine Place
   Administrative Law Division                               The Woodlands, TX 77381
   Office of the Attorney General                            Via Email: theaesculapius@gmail.com
   P.O. Box 12548
   Austin, Texas 78711-2548
   Via Facsimile: (512) 457"4674
   and Via Email to:
   ted.ross@texasattorneygeneral.gov


           Re:    Cause No. D-I-GN-14-001172; Jose A. Perez us. Texas Medical Board; in the
           53rd Judicial District, Travis County, Texas

           Dear Mr. Ross and Mr. Perez:

                The Court has received from Mr. Jose A Perez the attached "Motion to
                Adjudicate the Pending Motions by Written Submission".         Accordingly, the
                Court would like to first adjudicate the Defendants' Plea to the Jurisdiction via
                written submission. At this time, the Court's review will be SOLELY limited to
                the plea to the jurisdiction.
                Defendant is requested to submit any further briefing or materials that
                Defendant wishes the Court to review on the issue of the Plea to the Jurisdiction
                by 5:00 p.m. Thursday, July 31, 2014. Plaintiff is requested to submit any
                responsive pleadings or material on the issue of the plea to the jurisdiction no
                later than 5:00 p.m. Thursday, August 28, 2014. After receiving a copy of
                Plaintiff's response, Defendant may file a reply to that response, but no later
                than 5:00 p.m. Friday, September 12, 2014.
                In addition to filing your briefing on this issue with the District Clerk's office,
                please provide courtesy copies to the Court via facsimile to (512) 854-9780, or via

                                                              61
email tomystaffattorneyatkaty.gallagher-parker@co.travis.tx.us.    After all
briefing has been received, the Court will consider this matter via written
submission and the Court's Order will be forwarded to the parties.


Please let my staff attorney know if you have any questions.

                                       Sincerely,




                                       Darlene Byrne
                                       Judge, 126th District Court
                                       Travis County, Texas

                                       Katy Gallagher Parker
                                       Staff Attorney, 1261h District Court
                                       Phone: (512) 854-4915
                                       Fax: (512) 854-9780
                                       kat\' .gallagher-parkeriIJco. travis. tx.US


xc: Ms. Amalia Rodriguez-Mendoza, District Clerk




                                               62
Revised        - 09109110)                                     FOR SOAH USE ONLY                                                                                 (req.fml)
pale comple"   raquaet recetved by SOAH:                   Proceeding dele Nt by SOAH:              60AH Docket Number& type of case:

                         10-26-11                                                                                          S03-12-1940.PA


                                                          PLEASE CHECK ACTION REQUESTED:""
                    o SETTING OFHEARING             ~   ASSIGNMENTOF ALJ        * 0 ALTERNAnVE DISPUTERESOLUOON(ADR}lMEDIATON*
                                                                                                                      AGENCY'S
 REFERRING AGENCY NAME:                Texas Medical Board                                AGENCY NO.:    503         FILEICASE NO.: :...P.:..,:A,_,~O..,.0:....:.1.:o:.31
                                                                                                                                                                 _
 NAMEISTYLE OF THE CASE:              In the Matter of the Complaint Against Jose A Perez, PA
 DATE APPLICATION FILED AT AGENCY: 10/2612011                                        DOCKET NO. SUFFIX, if applicable:         '-P.:..,:A.__                     _
 PROCEEDING DATE{S) REQUESTED (Include range of dates If possible):                                                                                                   _

 EXPECTED NUMBER OF HOURS (If less than a day) OR OAYS NEEDED FOR PROCEEDING: __                                    HOURS     =2__      .DAYS


 o ADMIN. RNE               0 GRIEVANCE         0 ENFORCEMENT 0 CONTRACTCLAIM (Gov'tCode 2260) 0 OTHER                                                               _


 SPECIAl..NEEDS OR ACCOMMODATIONS:                                                                                                                                _

 IF ADR REQUESTeD PLEASE DESCRIBE PROCESS NEEDED:                                                                                                             _
 o PREHEARING CONFERENCE REQUESTED 0 INTERPRETER NEEDED(See 1 TAC §155.407)
 o CASE ALE 0 HEARING IS CONFIDENTrAL (Specify applicable statute):
                      and/or                                                                                                                                 _


                                                                             b.state.tx.us

                                                           PARTIES AND REPRESENTATIVES
 PARTY REPRESENTED BY:              0 SELF [8J ATTORNEY                                  PARTY REPRESENTED BY:          0 SELF I8J ATTORNEY
 o  OTHER. If so, relationship:                                                          o  OTHER, If so, relationship:

 REPRESENTATIVE'S NAME:              Lee Bukstein                                        REPRESENTATIVE'S NAME:         Jose A Perez,PA
 PARTY'S NAME:        TEXAS MEDICAL BOARD                                                PARTY'S NAME:    Jose A Perez, PA
 ADDRESS:       333 GUADALUPE, TOWER 3, SUITE 610                                        ADDRESS:    10223 Broadway, Suite 504
                Austin. Texas 78701                                                                 Pearland, TX 77584                         C>·
                                                                                                                                                ...~.~

 PHONE No : 512-305-7079                                                                 PHONE No.: 281-746-4949
 (Direct Phone Number Please)                                                            (Direct Phone Number Please)

 Email Address:fee.bukstein@tmb.state.bc.us                                              EmaU Address: theaesculaplus@gmall.com

 FAX No.: 512-305-7007                                                                   FAX No.:

                   PLEASE LIST ADDITIONAL PARTIES AND/OR REPRESENTATNES ON EXTRA FORM PROVIDED.
SEND TO:               STATE OFFICE OF ADMINISTRATIVE HEARINGS
                       AnN.: DeputyClerk                                                        PostOfficeBox 13025
                       WilliamP. ClementsBuilding                                   OR          Austin. Texas78711-3025
                       300 West 15th Street. Suite504                                           DocketingPhone No. (512) 475-3445
                       Austin,Texas78701                                                        Fax No.(512)322-2061
  ·PLEASE FORWARD A COpy OF THE APPLICATION, APPEAL, OR COMPLAINT WITH THIS REQUEST FORM, AS WELL AS ANY
 OTHER PLEADING FILED IN THE CASE TO DATE IF REQUESTING ASSIGNMENT OF AU or AL rEBNATIVE DISPUTE RESOLUTION
(ADR)IMEDIATION, A COpy OF THE NOTICE OF PROCEEDING MUST BE FORWARDED TO SOAH AT THE SAME TIME IT IS MAILED
                                                TO THE PARTIES.
                                     SOAB DOCKET NO. SOJ-12-1940.PA

TEXASPHYSICIAN ASSISTANTBOARD, §                                           BE~RETHESTATEOFnCE
            Petitioner                                       §
                                                             §
v.                                                           §                               OF
                                                             §
JOSE A. PEREZ, P.A.-C,                                       §
            Respoadent                                       §             ADMINISTRATIVE HEARINGS

                                              ORDER NO. 14
                                          ORDER DISMISSING CASE

            This matter came to be heard on April 24, 2013, before Administrative Law Judge (AU)
Catherine C. Egan.           Staff Attorney Lee Bukstein appeared on behalf of the Texas Physician
Assistant Board. Respondent Jose A Perez, P.A-C did not appear and was not represented at
the hearing. After admitting and reviewing Staff's Exhibits 1-6, the AU found that Staff
provided adequate notice to the Respondent of the hearing, the AU granted Staff's Motion for
Default,'

            Therefore, it is ORDERED that this matter is DISMISSED from the State Office of
Administrative Hearings docket on a default basis. Tex. Admin. Code § 15S.50I?                              The file is
being returned to the Board for informal disposition on a default basis. Tex. Gov't Code
§ 2001.056.

           SIGNED May 8,2013.




I    Staffs Exhibit 6 is the Notice of Hearing dated March 19. 2013. sent certified mailing to Respondent at his last
     known address. and was signed for on behalf of Respondent on March 21. 2013.
:1   The ALJ only reviewed the adequacy of the notice and not the sufficiency of the factual allegations.
