



Ramirez                                                             



TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-95-00657-CV





Hugo Ramirez, Appellant


v.


Texas State Board of Medical Examiners, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT

NO. 94-10894, HONORABLE F. SCOTT McCOWN, JUDGE PRESIDING




	Appellant Hugo Ramirez ("Ramirez") applied to the Texas State Board of Medical
Examiners (the "Board"), appellee, for reinstatement of his medical license, which had been
revoked in 1987.  After hearing Ramirez's presentation, the Board denied his request.  The Travis
County District Court affirmed the Board's decision.  On appeal to this Court, Ramirez
complains, inter alia, that the Board erred in failing to follow contested-case procedures with
respect to his application for reinstatement.  We agree and will reverse the trial court's judgment.


FACTUAL AND PROCEDURAL BACKGROUND

	Ramirez practiced medicine as an obstetrician and gynecologist in Pasadena, Texas. 
After branching out his practice into the technique of liposuction, he had a series of complications
in his liposuction patients.  The Board investigated and, in 1987, revoked Ramirez's license. 
Ramirez repeatedly applied to the Board for reinstatement, but was unsuccessful on each occasion.
	On June 22, 1994, Ramirez appeared at a hearing held by the Board to consider
his reapplication for reinstatement.  He was allowed to present evidence that he had practiced
medicine in Colombia sporadically, attended medical seminars in this country, and in 1989
completed a three-month re-education course for physicians.  Ramirez also proffered evidence of
his re-education program, which showed that he had accumulated over one thousand hours in
continuing medical education since 1987. In addition, Ramirez offered sworn testimony regarding
the value to him and to the public of his reinstatement as a licensed medical practitioner in Texas.
	During the hearing, the Board did not offer any testimony, nor did it enter exhibits
into the record.  After the Board came out of executive session, various members questioned
Ramirez.  Following this, the Board voted seven to five to refuse reinstatement to Ramirez.  In
rejecting Ramirez's application for reinstatement, the Board considered written materials that were
neither admitted into evidence nor provided to Ramirez before or during the hearing.  In addition,
the Board did not enter findings of fact and conclusions of law in support of its order.  Ramirez
appealed to the district court, which affirmed the Board's action.


DISCUSSION

	The Board concedes that it did not follow the procedures mandated by the
Administrative Procedure Act ("APA") for "contested cases" in Ramirez's reinstatement
proceeding.  See APA, Tex. Gov't Code Ann. §§ 2001.051-.178 (West Pamph. 1996).  The
Board contends, however, that it was not required to follow such procedures because this
proceeding was not a contested case within the meaning of the APA.  Thus, the dispositive issue
here is whether the proceeding by which the Board denied Ramirez's application for reinstatement
was a contested case as that term is defined in the APA.
	The APA defines "contested case" as "a proceeding, including a ratemaking or
licensing proceeding, in which the legal rights, duties, or privileges of a party are to be
determined by a state agency after an opportunity for adjudicative hearing."  APA § 2001.003(1). 
For purposes of the present case, the key phrase in the definition is "adjudicative hearing."  We
think the legislature intended for the term to mean "a hearing at which the decision-making agency
hears evidence and, based on that evidence and acting in a judicial or quasi-judicial capacity,
determines the rights, duties, or privileges of parties before it."  Best & Co. v. Texas State Bd.
of Plumbing Examiners, No. 3-95-395-CV, slip op. at 6 n.1 (Tex. App.Austin July 31, 1996,
no writ h.).
	Whether applications for reinstatement of previously revoked medical licenses are
"to be determined by [the Board] after an opportunity for adjudicative hearing" is determined by
the substantive statutes relating to the Board and its duties.  The Board's consideration of all
disciplinary actions against physicians, including the consideration of applications for
reinstatement, is governed by chapter four of the Medical Practice Act ("MPA"), Tex. Rev. Civ.
Stat. Ann. art. 4495b, §§ 4.01-.14 (West Supp. 1996).  Under the MPA, Board decisions
regarding license cancellations, revocations, suspensions, and other disciplinary actions have
historically been preceded by a trial-type evidentiary hearing.  See, e.g., Texas State Bd. of
Medical Examiners v. Birenbaum, 891 S.W.2d 333, 334-36 (Tex. App.Austin 1995, writ
denied).  Such formal hearings have not been provided, however, in response to applications for
reinstatement.
	Of particular importance to the present case is the MPA's judicial-review provision,
which has remained unchanged throughout Ramirez's efforts to obtain reinstatement:


Judicial Review


	Sec. 4.09.  (a) Any person whose license to practice medicine has been
canceled, revoked, suspended, or otherwise disciplined by the board may, within
30 days after the decision complained of is final and appealable, take an appeal to
one of the district courts of Travis County.

	(b) The proceedings on appeal shall be under the substantial evidence rule
as provided for in the Administrative Procedure Act.


MPA § 4.09.
	The other provision that is of particular importance in this case is the MPA's
reinstatement section.  When Ramirez first began attempting to obtain reinstatement in 1989, the
relevant portion of that section read as follows:


	Sec. 4.10.  PETITION FOR REINSTATEMENT.  Upon application, the
board may reissue a license to practice medicine to a person whose license has
been canceled, revoked, or suspended, but the application, in the case of
revocation, may not be made prior to one year after the revocation was issued or
became final and must be made upon payment of the fees as established by the
board and in the manner and form and under the conditions as the board may
require.


Act of May 30, 1983, 68th Leg., R.S., ch. 974, § 9, 1983 Tex. Gen. Laws 5291, 5302 (MPA
§ 4.10, since amended).
	In 1993, the legislature significantly amended the reinstatement provision by
designating section 4.10 as subsection "(a)" of section 4.10 and adding the following two
additional subsections:


	(b) In addition to the requirements of Subsection (a) of this section, to be
eligible for reinstatement or reissuance of a license, an applicant must prove that
it is in the best interests of the public and of the person whose license has been
canceled, revoked, or suspended to reinstate or reissue the license.

	(c) A decision by the board to deny an application to reinstate or reissue a
license is subject to judicial review in the manner provided by Section 4.09 of this
Act.


MPA § 4.10(b), (c).
	The 1993 amendments to the MPA do not expressly call for an evidentiary hearing
on a motion for reinstatement.  However, we conclude that such a hearing is necessarily implied
by the language of the new subsections.  First, subsection (b) of section 4.10 places the burden
on the applicant to "prove" that reinstatement is in the best interests of the public and the
applicant.  The term "prove" means "to establish a fact or hypothesis as true by satisfactory and
sufficient evidence."  Black's Law Dictionary 1224 (6th ed. 1990).  Thus, by its use of the term
"prove," the legislature apparently contemplated that evidence would be presented.
	Second, and perhaps even more important, subsection (c) of section 4.10 affords
judicial review in the manner provided by section 4.09, i.e., "under the substantial evidence rule
as provided for in the Administrative Procedure Act."  MPA § 4.09(b).  Judicial review under the
substantial evidence rule of the APA necessarily implies the creation of an agency "record."  APA
§ 2001.175.  Indeed, a court conducting a substantial evidence review under the APA is confined
to the agency record.  APA § 2001.175(e).  The APA's only definition of "record" includes


(1)	each pleading, motion, and intermediate ruling;

(2)	evidence received or considered;

(3)	a statement of matters officially noticed;

(4)	questions and offers of proof, objections, and rulings on them;

(5)	proposed findings and exceptions;

(6)	each decision, opinion, or report by the officer presiding at the hearing; and

(7)	all staff memoranda or data submitted to or considered by the hearing officer
or members of the agency who are involved in making the decision.


APA § 2001.060.
	Nonetheless, the Board argues that it was not obligated to give Ramirez a formal
contested-case hearing, but only to allow Ramirez to make an "appearance" before it.  See 22 Tex.
Admin. Code § 167.1 (1996).  We disagree.  If the Board's interpretation were correct, it could
deny applications for reinstatement without creating any significant agency record at all, certainly
not a record that would permit a meaningful judicial review.  If the Board could prevent any
meaningful judicial review of its decisions denying reinstatement, then the legislature would have
done a useless, futile thing in amending the statute to provide for such review.  Courts are
admonished not to adopt a construction that would permit such a result.  See City of LaPorte v.
Barfield, 898 S.W.2d 288, 292 (Tex. 1995). See generally J. Woodfin Jones, The Absurd-Results
Principle of Statutory Construction in Texas, 15 Rev. Litig. 81, 85 n.14 (1996).
	We conclude that, in enacting the 1993 amendments to MPA § 4.10, the legislature
contemplated that the Board would provide an evidentiary hearing on each application for
reinstatement.  In making a decision based on the evidence produced at such a hearing, the Board
clearly would be acting in a judicial or quasi-judicial capacity, and just as clearly would be
determining rights, duties, or privileges of the applicant.  The legislature must have intended,
therefore, that the decision on such an application would be made after an adjudicative hearing
(or at least an opportunity for such a hearing).  Accordingly, we conclude that the filing of an
application for reinstatement under MPA § 4.10 initiates a contested case within the meaning of
the APA.  Because the Board did not follow the procedures required for a contest case, it used
an improper procedure in denying Ramirez's application.  Under the circumstances of this case,
Ramirez's substantial rights were prejudiced by the Board's improper procedure.  See APA
§ 2001.174.


CONCLUSION

	We reverse the judgment of the district court and remand the cause to the Board
for further proceedings consistent with this opinion.


  					J. Woodfin Jones, Justice
Before Justices Powers, Jones and B. A. Smith
Reversed and Remanded
Filed:   July 31, 1996
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