      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-08-00006-CV



                                  Dr. Tone Johnson Jr., Appellant

                                                   v.

                                  Texas Medical Board, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
      NO. D-1-GN-07-002548, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING



                              MEMORANDUM OPINION


                Appellee the Texas Medical Board (the “Board”) issued a final order suspending

appellant Dr. Tone Johnson’s medical license for one year, probated under certain stated terms and

conditions. Johnson filed a petition for judicial review of the order in district court. The Board filed

a plea to the jurisdiction challenging the sufficiency of Johnson’s motion for rehearing and

contending that the allegations in the petition did not “demonstrate any other basis by which [the

district court] has jurisdiction of these claims.” The district court granted the plea to the jurisdiction

and dismissed Johnson’s petition. We will reverse the district court’s order of dismissal.


Background

                The Board filed a complaint against Johnson with the State Office of Administrative

Hearings in July 2005 alleging Johnson violated the Medical Practice Act by failing to practice

medicine in an acceptable professional manner consistent with public health and welfare and by
failing to maintain adequate medical records. See Tex. Occ. Code Ann. § 164.051(a)(3), (6)

(West 2004). An administrative law judge heard the case and prepared a proposal for decision that

included 54 findings of fact and nine conclusions of law. Neither Johnson nor the Board filed

exceptions to the proposed findings and conclusions. The Board adopted the proposal for decision

with the exception of one conclusion of law addressing sanctions.1 The Board’s final order

suspended Johnson’s medical license for one year, but stayed the suspension subject to certain terms

and conditions, including a requirement that Johnson’s practice be monitored for two years and that

he meet certain continuing medical education requirements.             The order also assessed an

administrative penalty of $5,000 and required Johnson to develop a written protocol and procedure

manual addressing how he and his staff would respond to patients requiring hospital admission.

               Johnson filed a motion for rehearing that stated:


               Comes now, Tone Johnson by and through his attorney of record . . .
               and files this Motion for Rehearing of the Medical Board’s decision
               as well as the review and acceptance of said recommendation by the
               Board within 20 days of receiving the Final Order from the Texas
               Medical Board (June 17, 2007). Respondent incorporates by
               reference the Closing Argument, Response to Board’s Closing
               Argument and Brief in Lieu of Oral Argument (Filed June 8, 2007)
               as the rationale for rehearing in order to investigate the conduct of Dr.
               Cleaves, McCullough and Manaolo in the care and treatment of R.M.
               as well as review all testimony and documents.


Johnson’s motion for rehearing was overruled. Thereafter, Johnson filed a petition for judicial

review, and the Board responded with a plea to the district court’s jurisdiction. The Board’s plea


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         The Board noted that the appropriate sanction is not the proper subject of a finding of fact
or conclusion of law. See 22 Tex. Admin. Code § 190.2 (2009) (Tex. Med. Bd., Board’s Role).

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complained that Johnson’s motion for rehearing was insufficient to confer jurisdiction on the district

court because Johnson’s petition complained of a ground for reversing the Board’s order that he

failed to raise in his motion for rehearing and because several of his allegations did not “implicate

§ 2001.174 [of the Administrative Procedure Act], or demonstrate any other basis which the [district

court] has jurisdiction” of his claims. See Tex. Gov’t Code Ann. § 2001.174 (West 2008). The

district court dismissed Johnson’s petition for judicial review for lack of jurisdiction. By one issue,

Johnson contends that the district court erred in granting the plea to the jurisdiction because his

motion for rehearing was sufficient to confer on the district court jurisdiction over his petition for

judicial review. The Board counters that Johnson failed to exhaust his administrative remedies

because his motion for rehearing was legally insufficient, and therefore the district court did not have

jurisdiction over the claims raised in his petition for judicial review.


Discussion

                It is well settled that a party must exhaust its administrative remedies before seeking

judicial review of an agency order. See Tex. Gov’t Code Ann. § 2001.171 (West 2008). A timely

motion for rehearing is a statutory prerequisite to a suit for judicial review of a decision in a

contested case. Id. § 2001.145(a) (West 2008); Hill v. Board of Trs. of the Ret. Sys., 40 S.W.3d 676,

678 (Tex. App.—Austin 2001, no pet.). The motion for rehearing is intended to notify the agency

that a party is dissatisfied with a final order and that the party will seek review if the ruling is not

changed. Dolenz v. State Bd. of Med. Exam’rs, 899 S.W.2d 809, 811 (Tex. App.—Austin 1995,

no writ). A motion for rehearing must meet the standard of fair notice stated in Suburban Utility

Corp. v. Public Utility Commission, which requires that the motion be “sufficiently definite” to put

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the agency on notice of the errors claimed so that the agency has the opportunity to correct or defend

such errors. 652 S.W.2d 358, 365 (Tex. 1983). In the present case, the Board argues that Johnson’s

motion, though timely filed, was so lacking in detail that it did not even constitute a motion for

rehearing.   The Board contends that the motion filed did not serve to exhaust Johnson’s

administrative remedies and was therefore not sufficient to confer jurisdiction on the district court.

               This Court has on numerous occasions addressed the sufficiency of motions for

rehearing. See Hill, 40 S.W.3d at 678-79; Hamamcy v. Texas State Bd. of Med. Exam’rs,

900 S.W.2d 423, 425 (Tex. App.—Austin 1995, writ denied); Morgan v. Employees’ Ret. Sys.,

72 S.W.2d 819, 821-22 (Tex. App.—Austin 1994, no writ); Testoni v. Blue Cross & Blue Shield of

Tex., Inc., 861 S.W.2d 387, 391 (Tex. App.—Austin 1992), overruled in part on other grounds by

Montgomery v. Blue Cross & Blue Shield of Tex., Inc., 923 S.W.2d 147, 151 (Tex. App.—Austin

1996, writ denied); Burke v. Central Educ. Agency, 725 S.W.2d 393, 397 (Tex. App.—Austin 1987,

writ ref’d n.r.e.). In Hill, we held that, with the exception of instances in which the motion is “so

indefinite, vague, and general as to constitute no motion for rehearing at all,” the contents of the

motion “are no longer jurisdictional and go solely to the issue of preservation of error.” 40 S.W.3d

at 679. Therefore, provided the document filed qualifies as a motion for rehearing, its sufficiency

or adequacy simply goes to the merits of the case and defines whether a claimed error has been

preserved for judicial review. Id. at 678 (citing Hamamcy, 900 S.W.2d at 435). Accordingly, in

deciding whether the district court’s dismissal for lack of subject-matter jurisdiction was improper,

we review Johnson’s motion for rehearing to determine whether it gave the agency fair notice of the

error claimed and is not, therefore, “so vague and general as to constitute no motion for rehearing

at all.” See Suburban Util. Corp., 652 S.W.2d at 364; Hill, 40 S.W.3d at 678.

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                Johnson’s motion for rehearing purports to incorporate by reference three documents

he claims to have filed in the agency proceeding. The administrative record before us includes only

one of those documents—Johnson’s Response to Board’s Closing Argument (the “Response”). The

Response took issue with numerous aspects of the agency proceeding including complaints regarding

the evidence supporting the Board’s contention that Johnson failed to practice medicine in an

acceptable manner and failed to treat a patient according to the generally accepted standard of care.

See 22 Tex. Admin. Code 190.8(1)(a) (2009) (Tex. Med. Bd., Violation Guidelines). In the

Response, Johnson argued that the Board failed to establish that he did not timely consult with other

physicians regarding the patient’s condition, and further contended that he met the standard of patient

care in assessing and treating the patient. Johnson’s motion for rehearing directed the Board to the

complaints contained in the Response and therefore gave the agency fair notice that Johnson

disagreed with its conclusion that he failed to practice medicine in an acceptable professional manner

and to alert the Board that he intended to seek review of its final order. See Suburban Util. Corp.,

652 S.W.2d at 365; Dolenz, 899 S.W.2d at 811. We conclude that Johnson’s motion for rehearing

was not so indefinite, vague, and general as to constitute no motion for rehearing at all, and its timely

filing conferred jurisdiction on the trial court. See Hill, 40 S.W.3d at 679.

                On appeal, the Board argues that the applicable rules of procedure do not permit

Johnson’s attempt to incorporate by reference documents filed in the agency proceeding, and that

even if they did, Johnson’s wholesale incorporation of arguments contained in his 36-page response

does not serve to identify Johnson’s specific objections to the Board’s final order. This alleged

failing, however, does not implicate the district court’s jurisdiction, but rather goes to the question



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of whether Johnson’s motion for rehearing was sufficiently specific to preserve for judicial review

the errors he now complains of in his petition. This is a different question from whether his motion

for rehearing conferred jurisdiction on the district court. See BFI Waste Sys. v. Martinez Envtl.

Group, 93 S.W.3d 570, 578 (Tex. App.—Austin 2002, pet. denied) (“The timely filing of a motion

for rehearing is jurisdictional, but the sufficiency of the motion’s content goes solely to the issue of

preservation of error.”) (citing Hill, 40 S.W.3d at 679)). On remand, the Board is free to argue that

the specific errors of which Johnson now complains were not preserved by his motion for rehearing

and that his attempt to incorporate the Response into his motion for rehearing by reference was not

permitted by the applicable procedures. See Burke, 725 S.W.2d at 399-400 (affirming summary

judgment against party whose motion for rehearing failed to set forth “(1) the particular finding of

fact, conclusion of law, ruling, or other action by the agency which the complaining party assert[ed]

was error; and (2) the legal basis upon which the claim of error rest[ed]”).

               The Board further argues that the district court did not have subject-matter

jurisdiction to review Johnson’s claims that the Board (1) failed to perform a proper investigation;

(2) failed to acknowledge racial bias; (3) failed to investigate the actions of other doctors; and

(4) failed to investigate the veracity of certain documents submitted in the agency proceedings. The

Board contends that these complaints “do not relate to the Board’s order” which is “the only subject

matter over which a trial court may exercise jurisdiction.” Johnson’s petition, however, complains

that the Board’s failings “caused the administrative proceedings to yield an erroneous outcome,” and

he seeks review of the final order subjecting him to disciplinary action. Review of such action is

specifically authorized by an enabling statute. See Tex. Occ. Code Ann. § 164.009 (West 2004) (“A



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person whose license to practice medicine has been revoked or who is subject to other disciplinary

action by the board may appeal to a Travis County district court not later than the 30th day after the

date the board decision is final.”). Johnson met the requirements of this statute by filing his suit in

Travis County district court not more than 30 days after the Board’s order became final. Johnson

also complied with the requirement of the Administrative Procedure Act that he exhaust his

administrative remedies by timely filing a motion for rehearing. See Tex. Gov’t Code Ann.

§§ 2001.145, .171; see also Texas Natural Res. Conservation Comm’n v. Sierra Club, 70 S.W.3d

809, 812 (Tex. 2002) (enabling statute controls when it conflicts with Administrative Procedure Act

but, when there is no conflict, court gives effect to both). Consequently, the district court had

subject-matter jurisdiction over Johnson’s petition complaining of the Board’s disciplinary action.


Conclusion

               Johnson timely filed a motion for rehearing giving the Board fair notice that he was

dissatisfied with its conclusions that he failed to practice medicine in a manner consistent with public

health and welfare and failed to treat a patient according to the generally accepted standard of care.

Johnson also met the requirements for obtaining judicial review under the relevant enabling statute

by filing his petition for judicial review in Travis County district court less than 30 days after the

Board’s decision was final. We conclude, therefore, that the district court erred in dismissing

Johnson’s suit for want of jurisdiction. Accordingly, we sustain Johnson’s issue, reverse the trial

court’s order of dismissal, and remand the cause to the district court.




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                                           _____________________________________________

                                           David Puryear, Justice

Before Chief Justice Law, Justices Puryear and Pemberton
  Chief Justice Law Not Participating

Reversed and Remanded

Filed: February 5, 2010




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