       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                     NO. 03-18-00229-CV


                             Field G. Harrison, D.D.S., Appellant

                                                v.

                      Texas State Board of Dental Examiners, Appellee




              FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY
    NO. D-1-GN-17-003434, THE HONORABLE GISELA D. TRIANA, JUDGE PRESIDING



                            MEMORANDUM OPINION


               This is an administrative appeal from a decision by the Texas State Board of

Dental Examiners to sanction Field G. Harrison, D.D.S. for violations of the statutes and rules

governing dentists in Texas. The district court affirmed in part and reversed in part the Board’s

order. We will affirm in part and reverse and remand in part the district court’s judgment.


                                       BACKGROUND

               Harrison is a dentist licensed to practice in Texas. In 2015, the Board filed a

complaint against Harrison alleging that he violated the Dental Practice Act and related

administrative rules in connection with his treatment, billing, and record keeping on two patients

in 2010 through 2012. More specifically, the Board asserted that Harrison had committed ten

violations related to record keeping and three violations involving “unprofessional and

dishonorable conduct.” See Tex. Occ. Code § 263.002(a)(3), (4), (10) (authorizing Board to
sanction dentists for dishonorable conduct, failure to meet dental standards of care, and failure to

comply with Board regulations); 35 Tex. Reg. 3932, 3932–34 (2010), adopted by 35 Tex. Reg.

8344 (2010), amended by 39 Tex. Reg. 6855 (2014) (former 22 Tex. Admin. Code § 108.7

(Texas State Board of Dental Examiners, Minimum Standard of Care, General)) (hereinafter

“Former Rule 108.7”); 34 Tex. Reg. 6741 (2009), adopted by 35 Tex. Reg. 634 (2010), amended

by 35 Tex. Reg. 8344 (2010) (former 22 Tex. Admin. Code § 108.8 (Texas State Board of Dental

Examiners, Records of the Dentist)); see generally Tex. Occ. Code §§ 251.001–267.006 (Dental

Practice Act).

                 After an evidentiary hearing, the administrative law judge made the following

conclusions of law regarding Harrison’s alleged violations:

                 6. [Harrison] violated or refused to comply with a law relating to
                 the regulation of dentists and failed to treat Patient 1 according to
                 the standard of care in the practice of dentistry when he failed to
                 record Patient 1’s vital signs on September 21, 2010.

                 7. [Harrison] violated or refused to comply with a law relating to
                 the regulation of dentists and failed to treat Patient 1 according to
                 the standard of care in the practice of dentistry when he failed to
                 include the SRP [scaling and root-planing procedure] performed on
                 Patient 1 on September 21, 2010 in the treatment plan.

                 8. [Harrison] violated or refused to comply with a law relating to
                 the regulation of dentists and failed to treat Patient 1 according to
                 the standard of care in the practice of dentistry when he failed to
                 maintain written informed consent for the SRP performed on
                 Patient 1 on September 21, 2010.

                 9. [Harrison] violated or refused to comply with a law relating to
                 the regulation of dentists and failed to treat Patient I according to
                 the standard of care in the practice of dentistry when he failed to
                 document the amount of the BLT used on Patient 1 on September
                 21, 2010.

                 10. By documenting the extraction of teeth numbers 17 and 32,
                 and billing Patient 2’s insurance provider for the same without

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               having extracted teeth numbers 17 and 32, [Harrison] practiced
               dentistry in a manner that constituted dishonorable conduct and
               failed in his duty of fair dealing for Patient 2.

               11. [Harrison] failed to comply with the Board rules on minimal
               sedation for Patient 2 on April 13, 2012.


               In addition to findings of facts related to and the above conclusions of law, the

ALJ found the presence of various aggravating and mitigating factors, including two aggravating

factors related to the tooth extractions.   Based on all the conclusions, fact findings, and

aggravating and mitigating factors, the ALJ recommended that the Board impose a reprimand, an

administrative fine of $3,000, a requirement for eighteen hours of additional continuing-

education (six hours each in ethics, minimal sedation, and risk management/recordkeeping), and

a requirement for completion of a jurisprudence assessment. Ultimately, the Board adopted the

ALJ’s findings of fact and conclusions of law and it imposed the sanctions recommended by the

ALJ.

               After exhausting his administrative remedies, Harrison filed the underlying suit

for judicial review of the Board’s order in Travis County District Court. In his suit against the

Board, Harrison challenged the sufficiency of the evidence supporting conclusion of law eight

(written consent), conclusion of law nine (documenting anesthetic), conclusion of law ten

(overcharging), and conclusion of law eleven (minimal sedation). After a hearing, the district

court rendered judgment reversing the Board’s conclusions of law nine and ten and affirming the

remainder of the Board’s order, thus leaving the Board’s sanctions in place. Harrison perfected

this appeal.




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                                           ANALYSIS

               In his first issue, Harrison contends that the district court erred by not remanding

his case to the Board for consideration of revised sanctions in light of the fact that the district

court had reversed two of the violations that the board had considered and relied on in imposing

its sanctions. In his second issue, Harrison raises a substantial-evidence challenge to the Board’s

conclusion and related findings that he violated Board rules by failing to obtain written consent

for the SRP performed on Patient 1.



Standard of Review

               The parties agree that our review of the Board’s order is governed by the same

analysis as in the district court—the familiar “substantial evidence” rule that is codified in

section 2001.174 of the Administrative Procedure Act (APA). See Tex. Gov’t Code § 2001.174.

This standard requires that we reverse or remand a case for further proceedings “if substantial

rights of the appellant have been prejudiced because the administrative findings, inferences,

conclusions, or decisions” are:


               (A)    in violation of a constitutional or statutory provision;
               (B)    in excess of the agency’s statutory authority;
               (C)    made through unlawful procedure;
               (D)    affected by other error of law;
               (E)    not reasonably supported by substantial evidence
                      considering the reliable and probative evidence in the
                      record as a whole; or
               (F)    arbitrary or capricious or characterized by abuse of
                      discretion or clearly unwarranted exercise of discretion.


Tex. Gov’t Code Ann. § 2001.174(a)(2); see Tex. Occ. Code § 263.009 (providing that APA

governs judicial appeals from Board orders).        Essentially, this is a rational-basis test to

                                                4
determine, as a matter of law, whether an agency’s order finds reasonable support in the record.

Texas Health Facilities Comm’n v. Charter Med.-Dall., Inc., 665 S.W.2d 446, 452–53 (Tex.

1984). “The test is not whether the agency made the correct conclusion in our view, but whether

some reasonable basis exists in the record for the agency’s action.” Slay v. Texas Comm’n on

Envtl. Quality, 351 S.W.3d 532, 549 (Tex. App.—Austin 2011, pet. denied) (citing Railroad

Comm’n v. Pend Oreille Oil & Gas Co., 817 S.W.2d 36, 41 (Tex. 1991)). We apply this analysis

without deference to the district court’s judgment. See Texas Dep’t of Pub. Safety v. Alford, 209

S.W.3d 101, 103 (Tex. 2006) (per curiam). We presume that the agency’s findings, inferences,

conclusions, and decisions are supported by substantial evidence, and the burden is on the

contestant to demonstrate otherwise. See Charter Med.-Dall., 665 S.W.2d at 453. Ultimately,

we are concerned not with the correctness of the agency’s decision, but its reasonableness. See

Sanchez v. Texas State Bd. of Med. Exam’rs, 229 S.W.3d 498, 510–11 (Tex. App.—Austin 2007,

no pet.).

              Substantial-evidence analysis entails two component inquiries: (1) whether the

agency made findings of underlying facts that logically support the ultimate facts and legal

conclusions establishing the legal authority for the agency’s decision or action and, in turn,

(2) whether the findings of underlying fact are reasonably supported by evidence. See Vista

Med. Ctr. Hosp. v. Texas Mut. Ins. Co., 416 S.W.3d 11, 26–27 (Tex. App.—Austin 2013, no

pet.) (citing Charter Med.-Dall., 665 S.W.2d at 453). The second inquiry, which has been

termed the “crux” of substantial-evidence review, see Granek v. Texas State Board of Medical

Examiners, 172 S.W.3d 761, 778 (Tex. App.—Austin 2005, no pet.), is highly deferential to the

agency’s determination: “substantial evidence” in this sense “does not mean a large or

considerable amount of evidence”—in fact, the evidence may even preponderate against the

                                               5
agency’s finding—but requires only “such relevant evidence as a reasonable mind might accept

as adequate to support a [finding] of fact,” Slay, 351 S.W.3d at 549 (citations omitted).

Likewise, we “may not substitute [our] judgment for the judgment of the state agency on the

weight of the evidence on questions committed to agency discretion.”               Tex. Gov’t Code

§ 2001.174. In contrast, the first inquiry, concerning the extent to which the underlying facts

found by the agency logically support its ultimate decision or action, may entail questions of law

that we review de novo. See Railroad Comm’n v. Texas Citizens for a Safe Future & Clean

Water, 336 S.W.3d 619, 624 (Tex. 2011); Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d

559, 565 (Tex. 2000) (citing Charter Med.-Dall., 665 S.W.2d at 453); City of El Paso v. Public

Util. Comm’n, 344 S.W.3d 609, 618–19 (Tex. App.—Austin 2011, no pet.)). Guided by this

well-established standard of review, we address Harrison’s issues challenging the

Commissioner’s decision.



Remand

               In his first issue, Harrison contends that it was error for the district court to affirm

the Board’s sanctions rather than remand for reconsideration because it had reversed two of the

six violations found by the Board. We agree.

               The Legislature has authorized the Board to discipline licensed dentists for

violations of the Dental Practice Act and to adopt and enforce rules to perform its duties under

the Act. See Tex. Occ. Code §§ 254.001 (rulemaking authority), 263.002(a) (authorizing and

setting forth grounds for discipline by Board). Under its rulemaking authority, the Board has

promulgated rules regarding its disciplinary actions, including a rule that allows it to, as it did

against Harrison, issue a reprimand and impose an administrative fine or other sanction against a

                                                  6
dentist it determines has violated the Dental Practice Act. See, e.g., 22 Tex. Admin. Code

§§ 107.53 (Texas State Board of Dental Examines, Final Decisions and Orders), 107.202 (Texas

State Board of Dental Examiners, Disciplinary Guidelines and Administrative Penalty Schedule).

The Board’s rules also direct it to consider aggravating and mitigating factors in assessing

sanctions and to include applicable findings of fact regarding those factors in its final orders. See

id. § 107.203 (Texas State Board of Dental Examiners, Aggravating and Mitigating Factors).

               In connection with its disciplinary authority, the Board has promulgated a

disciplinary matrix that sets forth its enforcement policies and disciplinary guidelines. See 35

Tex. Reg. 8152, 8153–66 (2010) (State Board of Dental Examiners, SBDE Disciplinary Matrix).

The matrix categorizes violations as first, second, third, or fourth tier—the first-tier violations are

those that the Board has determined to be “less serious,” while the remaining tiers are those that

the Board has determined to be “more serious.” See id. The matrix also lists the aggravating and

mitigating factors that the Board must consider in determining an appropriate sanction; provides

an administrative fine schedule; and delineates the sanctions available based on the designated

tier of a violation. See id. at 8153–66. Finally, the matrix requires the Board to consider all

applicable violation sections in determining a sanction that stems from conduct constituting a

violation of multiple statute sections. See id. at 8154 (“When considering conduct constituting a

violation of multiple statute sections, the Board will determine an appropriate sanction after

consideration of the sanction recommendation from all applicable violation sections and an

aggravating or mitigating factors.”).

               In this case, the Board considered, among other matters, the ALJ’s proposal for

decision (PFD) and ultimately adopted all of the PFD’s findings of facts and conclusions of

law—including, of course, the conclusions of law that the district court subsequently determined

                                                  7
lacked support by substantial evidence—in assessing its administrative penalties against

Harrison. The penalties assessed by the Board were the same penalties recommended by the

ALJ, which were, in turn, based on the ALJ’s findings of fact, conclusions of law, and mitigating

factors as set forth in the PFD.

               An agency has broad discretion in determining sanctions. Fay–Ray Corp. v.

Texas Alcoholic Beverage Comm’n, 959 S.W.2d 362, 369 (Tex. App.—Austin 1998, no pet.).

However, under the applicable standard of review, we must reverse or remand a case for further

proceedings if substantial rights of the appellant have been prejudiced because the agency

decision is, relevant here, “affected by other error of law.” Tex. Gov’t Code § 2001.174(2)(D). 1

Here, the Board’s sanctions against Harrison were based, at least in part, on its consideration of

two conclusions of law that, according to the district court’s unchallenged holding, lack support

by substantial evidence—i.e., the conclusions were made in error. Stated differently, the Board

based its sanctions, at least in part, on erroneous conclusions of law. Thus, the Board’s sanctions

against Harrison are “affected by other error of law.” See id.; see also Southern Concepts, Inc. v.

Texas Dep’t of Aging & Disability Servs., No. 03-17-00712-CV, 2018 WL 5814093, at *8

(Tex. App.—Austin Nov. 7, 2018, no pet.) (mem. op.) (holding that agency’s final order

“affected by other error of law” where agency relied on misreading of agency rule); Texas Dep’t

of Pub. Safety v. Story, 115 S.W.3d 588, 594 (Tex. App.—Austin 2003, no pet.) (explaining that

section 2001.174(2)(D) is “a catchall ground for reversal or remand to provide remedy for one

who has suffered an adverse administrative determination ‘affected’ by some legal error other

than those described in the other subcategories”).


       1
          The Board does not dispute that Harrison’s substantial rights are implicated by the
Board’s sanctions.
                                                8
               In response, the Board argues that remand is not necessary or appropriate because

the four violations affirmed by the district court—i.e., conclusions of law six (failure to record

vital signs), seven (failure to record SRP), eight (failure to maintain written informed consent),

and eleven (failure to comply with minimal-sedation rules)—support the Board’s sanctions. The

Board suggests that even if it is required to reconsider its sanctions in light of the district court’s

judgment, it could nevertheless assess the exact same sanctions against Harrison because the four

existing violations support such sanctions under the disciplinary matrix. But even if the matrix

supports the existing sanctions and the Board could assess the same sanctions should it choose to

do so—contentions that we do not address—the issue in this appeal is that the existing sanctions

were based on conclusions of law and related factors that have since been determined to lack

support in substantial evidence. As such, the Board’s existing sanctions are “affected by other

error of law” and, accordingly, we must remand the case for further proceedings consistent with

this opinion. See Tex. Gov’t Code § 2001.174(2)(D), (F); see also Texas Dep’t of Transp. v.

Jones Bros. Dirt & Paving Contractors, 24 S.W.3d 893, 899 (Tex. App.—Austin 2000), rev’d on

other grounds, 92 S.W.3d 477 (Tex. 2002) (“Given the general principle that the court may not

reweigh the evidence and substitute its own judgment for that of the agency, the APA anticipates

that the court will generally remand to the agency when it finds an error of law.”).



Substantial Evidence

               In his second issue, Harrison raises a substantial-evidence challenge to the

Board’s conclusion of law eight that Harrison failed to obtain written consent to a procedure:


               8. [Harrison] violated or refused to comply with a law relating to
               the regulation of dentists and failed to treat Patient 1 according to

                                                  9
               the standard of care in the practice of dentistry when he failed to
               maintain written informed consent for the SRP performed on
               Patient 1 on September 21, 2010 . . . .


This conclusion was based on the Board’s Former Rule 108.7(6), which states that dentists:


               Should maintain a written informed consent signed by the patient
               . . . . Such consent is required for all treatment plans and
               procedures where a reasonable possibility of complications from
               the treatment planned or a procedure exists, and such consent
               should disclose risks or hazards that could influence a reasonable
               person in making a decision to give or withhold consent.


See Former Rule 108.7(6). As support for this conclusion, the Board found that “SRP is a

significant procedure that requires written informed consent,” and that Harrison “failed to obtain

written informed consent prior to performing SRP on Patient 1.” On appeal, Harrison argues that

this conclusion and its supporting findings of fact are not supported by substantial evidence

because “the Board [failed] to introduce substantial evidence that SRP implicates ‘a reasonable

possibility of complications’ or involves ‘risks or hazards that could influence a reasonable

person in making a decision to give or withhold consent.’” (Quoting parts of Former Rule

108.7(6).) We disagree.

               To the extent that Harrison is arguing that the Board was required to make

particular findings of fact, we note that such findings of underlying fact are not required in an

agency’s final order unless an “ultimate fact embodies a mandatory fact finding set forth in the

relevant enabling act” or when the ultimate fact finding represents a criterion “that the legislature

has directed the agency to consider in performing its function.” Charter Med.-Dall., 665 S.W.2d

at 451. Stated conversely, when an agency’s enabling act does not require it to make any

particular finding of fact or does not direct it to consider any particular criterion in determining

                                                 10
whether a violation has occurred, the agency is not obligated to make any findings of basic fact

at all. See Galveston County v. Texas Dep’t of Health, 724 S.W.2d 115, 125 (Tex. App.—Austin

1987, writ ref’d n.r.e.) (citing Charter Med.-Dall., 665 S.W.2d at 650–51).           The statutory

provision at issue here does not require the Board to make any particular finding of fact and does

not direct it to consider any particular criterion in determining whether to discipline a dentist for

failing to treat a patient according to the standard of care. See Tex. Occ. Code § 263.002(a)(4)

(authorizing Board to discipline dentist who “fails to treat a patient according to the standard of

care in the practice of dentistry”).

                Further, we conclude that the Board’s decision here is supported by substantial

evidence. During the contested-case hearing, the Board’s expert witness James B. Barnes,

D.D.S. explained in detail what SRP involves. And when asked, immediately after reading

Former Rule 108.7(6) into the record, whether SRP is a procedure that requires informed

consent, Barnes responded:


                In my opinion, yes. People might argue with me, but I think that
                does meet the situation of informed consent, specifically because
                of what it means, in that we are dealing with a real disease.


Further, in deposition testimony admitted into evidence at the contested-case hearing, Harrison’s

expert witness Jonathan Blansett read Former Rule 108.7(6) into the record and agreed that SRP

is a procedure that would require informed consent under that rule. Although Blansett later

called this deposition testimony into question during his testimony at the contested-case hearing,

the factfinder determines witness credibility and was free to weigh this evidence against Barnes’s

testimony and against Blansett’s deposition testimony. Firemen’s & Policemen’s Civil Serv.

Comm’n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1984) (reviewing court “may not substitute

                                                 11
its judgment for that of the agency on controverted issues of fact”); Granek, 172 S.W.3d at 778

(factfinder “determines the credibility of witnesses and the weight to give their testimony”).

               In sum, the evidence in the record before us provides a reasonable basis for the

Board’s determination that Harrison failed to treat Patient 1 according to the standard of care in

the practice of dentistry when he did not obtain the written informed consent for the SRP

performed on Patient 1. See Charter Med.-Dall., 665 S.W.2d at 452–53 (“The true test is not

whether the agency reached the correct conclusion, but whether some reasonable basis exists in

the record for the action taken by the agency.”). Accordingly, we overrule Harrison’s second

issue.


                                         CONCLUSION

               Having sustained Harrison’s first issue and overruled his second, we reverse that

part of the district court’s judgment that affirms the Board’s sanctions against Harrison, affirm

the remainder of the district court’s judgment, and remand the case to the district court with

instructions to remand the case to the Board for further consideration of sanctions against

Harrison. On remand, the Board is limited to exercising its discretion on the assessment of

sanctions against Harrison consistent with this opinion.       See Tex. Gov’t Code § 2001.174

(allowing courts to affirm agency decision in whole or in part and remand case for further

proceedings if appellant’s substantial rights have been prejudiced because decision violates

statutory provision or exceeds agency’s statutory authority); Freightliner Corp. v. Motor Vehicle

Bd. of Tex. Dep’t of Transp., 255 S.W.3d 356, 365–66 (Tex. App.—Austin 2008, pet. denied)

(“Courts are legislatively empowered to limit the scope of a remand to the part of an order that

contains error.”).



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                                            __________________________________________
                                            Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Kelly and Smith

Affirmed in Part, Reversed and Remanded in Part

Filed: January 23, 2020




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