               IN THE SUPREME COURT OF TEXAS
                                        ══════════
                                           No. 17-0385
                                        ══════════

                            RUBEN ALEMAN, M.D., PETITIONER,
                                                 v.


                          TEXAS MEDICAL BOARD, RESPONDENT
            ══════════════════════════════════════════
                        ON PETITION FOR REVIEW FROM THE
                 COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
            ══════════════════════════════════════════


       JUSTICE BLACKLOCK, joined by JUSTICE BROWN, concurring.

       I agree with the Court that a physician who signs a death certificate with a pen does not

“commit[] unprofessional or dishonorable conduct that is likely to deceive or defraud the public.”

TEX. OCC. CODE § 164.052(a)(5). I write separately to explain my reasons for reaching that

conclusion, which differ from the Court’s.

       Section 164.051(a)(1) of the Occupations Code authorizes the Medical Board to discipline

a person who “commits an act prohibited under Section 164.052.” Section 164.052(a)(5), in turn,

prohibits “commit[ting] unprofessional or dishonorable conduct that is likely to deceive or defraud

the public, as provided by Section 164.053.” Finally, section 164.053(a)(1) provides: “For

purposes of Section 164.052(a)(5), unprofessional or dishonorable conduct likely to deceive or

defraud the public includes conduct in which a physician: (1) commits an act that violates any state

or federal law if the act is connected with the physician’s practice of medicine.”
        In the Medical Board’s view, any violation of any state or federal law—no matter how

mundane or innocuous—has been designated by the legislature as “unprofessional or dishonorable

conduct likely to deceive or defraud the public.” TEX. OCC. CODE § 164.053(a). In the Court’s

view, the Board’s reading errs by “favoring microscopic examination of isolated words over

consideration of the statute as a whole.” Ante at ___. The dissent correctly points out that there is

nothing wrong with “microscopic examination of isolated words” when those words are a

legislatively supplied definition of a term. In the dissent’s view, the Court’s reasoning boils down

to the assertion that “the statute simply cannot mean what it expressly says.” Infra at ___. Yet

our job is to apply statutes based on what they expressly say, not what we think they should say.

BankDirect Capital Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 78 (Tex. 2017) (“[T]he

foremost task of legal interpretation [is] divining what the law is, not what the interpreter wishes

it to be.”).

        At the risk of engaging in “microscopic examination of isolated words,” in my view a

careful reading of section 164.053(a)(1) reveals that the Board has oversimplified the statute in a

way that eliminates important words of limitation. Contrary to the Board’s position, section

164.053(a)(1) is not triggered any time a physician “violates any state or federal law.” It is only

triggered when a physician “commits an act that violates any state or federal law.” TEX. OCC.

CODE § 164.053(a)(1) (emphasis added). Under the Board’s approach, the statute would operate

exactly the same way whether or not it contained the words “commits an act that.” But we should

disfavor any reading that renders these words superfluous. Pedernal Energy, LLC v. Bruington

Eng’g, Ltd., 536 S.W.3d 487, 491 (Tex. 2017); TGS-NOPEC Geophysical Co. v. Combs, 340

S.W.3d 432, 439 (Tex. 2011) (“[E]ach word [is] chosen for a purpose . . . .”). In this case, giving


                                                 2
these words operative meaning poses no challenge. Their meaning is plain. By placing the words

“commits an act that” in front of “violates any state or federal law,” the legislature invoked the

familiar distinction between acts and omissions. Compare TEX. PENAL CODE § 1.07(a)(1) (“‘Act’

means a bodily movement, whether voluntary or involuntary, and includes speech.”), with id. §

1.07(a)(34) (“‘Omission’ means failure to act.”); see also id. § 6.01(a) (conditioning the existence

of an offense on a voluntary “act” or “omission”). Instead of predicating the Board’s enforcement

authority on the existence of any legal violation, the legislature made it dependent on the

affirmative commission of an act that violates the law. If the legislature had wanted any violation

of law to qualify as “unprofessional or dishonorable conduct likely to deceive or defraud the

public,” it could have dispensed with the words “commits an act that.” TEX. OCC. CODE §

164.053(a)(1). Indeed, that is exactly what it did in section 164.053(a)(7), which is triggered any

time a physician “violates Section 311.0025, Health and Safety Code.”

       We should apply the statute’s words whether they make perfect sense to us or not.

Centerpoint Builders GP v. Trussway, Ltd., 496 S.W.3d 33, 36 (Tex. 2016) (“[W]e may not omit

or gloss over verbiage in an attempt to reclaim clarity.”). But in this context, the legislature’s

invocation of the act-omission distinction actually seems quite sensible. The ancient common-law

origins of the act-omission distinction derive in part from the concept of the actus reus, under

which crimes at common law required proof of an overt act as opposed to a failure to act. 4

WILLIAM BLACKSTONE, COMMENTARIES *21 (“[A] vicious will without a vicious act is no civil

crime . . . . So that to constitute a crime against human laws, there must be, first, a vicious will;

and, secondly, an unlawful act consequent upon such vicious will.”). The act-omission distinction

in criminal law, under which overt criminal acts traditionally were thought more blameworthy than


                                                 3
omissions, may not be as strong now as it was in Blackstone’s time. But it retains force today, at

least enough for the legislature to invoke it in section 163.054(a)(1). Punishing overt acts that

violate the law is one thing. Punishing failures to act—particularly in a profession where countless

complicated federal and state regulations impose an unfathomable array of legal duties—is quite

another. The statute’s distinction between illegal acts and illegal omissions does not draw a perfect

line between deceptive legal violations and innocuous ones, as the majority attempts to do. But it

does draw a line, and we should enforce it.

       In my view, section 164.053(a)(1) does not encompass the Board’s allegations against Dr.

Aleman, which stem from his unlawful failures to act, not from unlawful actions. Section

193.005(h), the statute Dr. Aleman admittedly violated, states: “The person completing the

medical certification shall submit the information and attest to its validity using an electronic

process approved by the state registrar.” TEX. HEALTH & SAFETY CODE § 193.005(h). According

to the Medical Board, Dr. Aleman’s conduct falls within section 164.053(a)(1) because he violated

section 193.005(h) when he “admittedly failed to sign the [certificate of death] electronically.”

Resp’t’s Br. on the Merits 5 (emphasis added). The SOAH hearing officer stated in the Final Order

that “Dr. Aleman violated Texas Health and Safety Code § 193.005(h) by failing to certify the

death certificate for J.S. electronically.” Ruben Aleman, M.D., SOAH Docket No. 503-13-

4126.MD (Tex. Med. Bd. June 27, 2014) (emphasis added). The failure to sign is not an act. The

failure to certify is not an act. They are omissions. The Board’s complaint is that section

193.005(h) imposes an affirmative duty on Dr. Aleman, who failed to discharge it. Even as

described by the Board and the hearing officer, Dr. Aleman’s legal error was one of omission, not




                                                 4
of commission. Dr. Aleman admits he violated the statute, but that does not mean he “committed

an act that violated” it.

        The only act Dr. Aleman committed was signing the death certificate with a pen. But

section 193.005(h) does not prohibit that act. Again, it states: “The person completing the medical

certification shall submit the information and attest to its validity using an electronic process

approved by the state registrar.” It says nothing one way or another about the legality of hand-

signing a certificate that has been “dropped to paper” and thereby removed from the state

registrar’s electronic system. The statute does not make it illegal to hand-sign and then later

electronically certify, as Dr. Aleman attempted to do. The statute does not prohibit any action

whatsoever with respect to a “dropped to paper” certificate. As far as section 193.005(h) is

concerned, Dr. Aleman could have hand-signed it, thrown it in the trash, or made a paper airplane

out of it. No matter what happened to the paper certificate, Dr. Aleman’s only obligation under

section 193.005(h) is to “submit the information and attest to its validity using an electronic process

approved by the state registrar.”

        It might be argued that because hand-signing and electronically certifying are mutually

exclusive methods, the act of hand-signing violates the duty to electronically certify. But the

statute itself does not make the two options mutually exclusive. Only after consulting the jumbled

innards of the “electronic process approved by the state registrar” could one know that, under the

registrar-approved process, hand-signing and electronic certification happen to be mutually

exclusive. But the “electronic process approved by the state registrar” is not “the law,” so hand-




                                                  5
signing in violation of it does not trigger section 164.053(a)(1).1 And even if the “electronic

process” were the law, the act of hand-signing a certificate still would not violate the statutory duty

to electronically certify. Under the state registrar-approved process, the option to hand-sign a

paper certificate only arises after it has become impossible to electronically certify it. Once the

certificate was “dropped to paper,” hand-signing versus electronically signing was not an either/or

proposition for Dr. Aleman. His options were to hand sign it or not hand sign it. Whether he took

the overt act of signing the paper certificate or not, at that point he could not certify it electronically

in compliance with section 193.005(h).

         What made Dr. Aleman’s violation of section 193.005(h) inevitable—and where the Board

says he really went wrong—was his failure to register for the electronic certification system.

Ultimately, the Board’s objection to Dr. Aleman’s conduct is not that he hand-signed the certificate

instead of electronically certifying it. Once the certificate was “dropped to paper,” he had no

choice between the two methods.2 In the end, the crux of the Board’s objection is that the

certificate had to be dropped to paper because Dr. Aleman was not registered with the electronic

system. But the law contains no requirement that he register. And even if it did, by failing to


         1
           We are directed to no formally promulgated regulation containing this “process.” The Board describes the
process based on witness testimony from state employees familiar with its inner workings, not based on citations to
legal authority. If, as the Board seems to argue, the legislature outlawed whatever the state registrar-approved process
would later happen to prohibit, then section 193.005(h) could fail a constitutional challenge under non-delegation
principles. Article II, Section 1 of the Texas Constitution, our state’s separation-of-powers clause, has been
understood to prohibit the legislature from delegating to executive branch agencies the authority to make law. TEX.
CONST. art. II, § 1; Brown v. Humble Oil & Ref. Co., 83 S.W.2d 935, 941 (Tex. 1935) (“The power to pass laws rests
with the Legislature, and that power cannot be delegated to some commission or other tribunal.”); Chancy v. State, 19
S.W. 706, 709 (Tex. 1892) (“Laws can be made in this state only by the legislature, and it has no power to delegate to
any board or other department of the government the power to annul laws enacted by it.”).
         2
            Although Dr. Aleman does not couch his statutory arguments in the text’s distinction between acts and
omissions, his statutory arguments implicate similar concerns by stressing the “impossibility” of complying with the
statute after the certificate had been “dropped to paper.” He essentially argues that he can’t have done anything wrong
because once the certificate was “dropped to paper” he did not have the option to do anything right. He is correct.

                                                           6
register he did not “commit[] an act that violates any state or federal law.” TEX. OCC. CODE §

164.053(a)(1) (emphasis added).

         The bottom line is that the Board is not prosecuting Dr. Aleman for what he did. It is

prosecuting him for what he should have done. Under the Board’s theory of this case, the legal

violation to which Dr. Aleman admitted and for which he is being prosecuted is the failure to

electronically certify a death certificate. Dr. Aleman may have violated the law by failing to certify

electronically, but he did not thereby “commit[] an act that violates” the law. Under the text of

section 164.053, his unlawful omission does not automatically qualify as “unprofessional or

dishonorable conduct likely to deceive or defraud the public.” The Board lacks authority to

prosecute him for it. I concur in the Court’s judgment vacating the sanctions against Dr. Aleman.

                                                     ***

                 After having thus taken each individual one by one into its powerful hands,
         and having molded him as it pleases, the sovereign power extends its arms over the
         entire society; it covers the surface of society with a network of small, complicated,
         minute, and uniform rules, which the most original minds and the most vigorous
         souls cannot break through to go beyond the crowd; it does not break wills, but it
         softens them, bends them and directs them; it rarely forces action, but it constantly
         opposes your acting; it does not destroy, it prevents birth; it does not tyrannize, it
         hinders, it represses, it enervates, it extinguishes, it stupefies, and finally it reduces
         each nation to being nothing more than a flock of timid and industrious animals, of
         which the government is the shepherd.

ALEXIS    DE   TOCQUEVILLE, DEMOCRACY           IN   AMERICA: HISTORICAL-CRITICAL EDITION 1252

(Eduardo Nolla ed., James T. Schleifer trans., Liberty Fund 2010).

         Whether Tocqueville’s darkly eloquent prophecy accurately describes modern America is

in the eye of the beholder. Yet in at least one respect, his dystopic vision was undeniably prescient.

More and more all the time, we live under a legal regime that “covers the surface of society with

a network of small, complicated, minute, and uniform rules.” Id. The total number of laws and

                                                      7
regulations is staggering. The Code of Federal Regulations is nearly 190,000 pages long, and it

grows constantly. CLYDE WAYNE CREWS, JR., TEN THOUSAND COMMANDMENTS: AN ANNUAL

SNAPSHOT OF THE FEDERAL REGULATORY STATE 14 (2018). Since 1993, federal agencies have

issued more than 101,380 rules. Id. at 4. “And no one seems sure how many more hundreds of

thousands (or maybe millions) of pages of less formal or ‘sub-regulatory’ policy manuals,

directives, and the like might be found floating around these days.” Caring Hearts Pers. Home

Servs., Inc. v. Burwell, 824 F.3d 968, 969 (10th Cir. 2016) (Gorsuch, J.). Even as far back as 1982,

the Justice Department tried to count the total number of federal criminal laws but concluded that

doing so with precision was futile. Gary Fields & John R. Emshwiller, Many Failed Efforts to

Count    Nation’s     Federal     Criminal    Laws,     WALL      ST.    J.,   (July   23,    2011),

https://on.wsj.com/2oKFAiM.        In Texas law, there are over 43,000 regulations in the

Administrative Code and over 4,000 chapters of statutory code, each of which contain dozens or

even hundreds of sections. We can only guess at the total number of duties the law imposes on us.

Like the grains of sand in a jar, their number seems beyond our capacity to count.

        According to the Medical Board, the Texas Legislature designated any violation of any of

the countless state or federal statutory or regulatory legal obligations as “unprofessional or

dishonorable conduct that is likely to deceive or defraud the public.”            TEX. OCC. CODE

§ 164.052(a)(5). If that is really the law, then perhaps reality is stranger than Tocqueville feared.

Living under a network of complicated and minute rules may be our lot. Living under a regime

that considers every violation of its complicated and minute rules to be morally blameworthy—

deceptive, fraudulent, and dishonorable—would be quite another thing. But that is not out fate.

We remain free citizens endowed with moral discernment apart from the dictates of the law. Free


                                                 8
people can tell the difference between laws that justly prohibit harmful conduct based on our

shared sense of right and wrong and laws that outlaw otherwise innocuous behavior in pursuit of

the government’s innumerable regulatory goals. The notion that the Texas Legislature considers

every minute violation of the myriad regulations under which doctors practice to be deceptive,

fraudulent, and dishonorable conduct obviously strikes the majority of this Court as absurd. That

is encouraging.

         The ancient distinction between malum in se and malum prohibitum has deep roots in our

legal tradition.3 If we lose our sense of that distinction—between lawbreaking that is wrong in

itself and lawbreaking that is wrong only because the government happens to have made it

illegal—we are well on our way to becoming “nothing more than a flock of timid and industrious

animals, of which the government is the shepherd.”




                                                         __________________________________________
                                                         James D. Blacklock
                                                         Justice


OPINION DELIVERED: May 24, 2019




         3
           1 WILLIAM BLACKSTONE, COMMENTARIES *54–55, (“[D]ivine or natural duties . . . [do not] receive any
stronger sanction from being also declared to be duties by the law of the land. The case is the same as to crimes and
misdemeanors, that are forbidden by the superior laws, and therefore styled mala in se, such as murder, theft, and
perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. For that
legislature in all these cases acts only . . . in subordination to the great lawgiver, transcribing and publishing his
precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with
regard to actions that are naturally and intrinsically right or wrong. But, with regard to things in themselves indifferent,
the case is entirely altered. These become either right or wrong, just or unjust, duties or misdemeanors, according as
the municipal legislator sees proper . . . .”).

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