      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


               44444444444444444444444444444444444444444444444
                ON UNOPPOSED MOTION TO MODIFY THE JUDGMENT
               44444444444444444444444444444444444444444444444



                                      NO. 03-03-00698-CV



                                Harold Granek, M.D., Appellant

                                                v.

     Texas State Board of Medical Examiners and Donald W. Patrick, M.D., Appellees




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
       NO. GN201905, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING



                                         OPINION


                On August 3, 2005, we overruled appellant Harold Granek, M.D.’s motion for

rehearing. To address additional issues raised in his unopposed motion to modify the judgment, we

withdraw our opinion and judgment dated August 3, 2005, and substitute the following in its place.

                Granek appeals the district court’s judgment affirming an order of the Texas State

Board of Medical Examiners (Board) imposing disciplinary sanctions against him.1 He complains

chiefly that the Board violated due process in prosecuting its disciplinary complaint against him


       1
           Appellee Donald W. Patrick, M.D. is the Executive Director of the Board.
when some of its allegations were more than a decade old; that there is not substantial evidence to

support the Board’s disciplinary grounds; and that the Board committed errors of law by including

certain commentary in its order. We will affirm in part and reverse and remand in part.


                                         BACKGROUND

               Granek holds a license to practice medicine issued by the Board. He is an

ophthalmologist who specializes in the treatment of the vitreo-retinal part of the eye and has

practiced in Fort Worth since approximately 1991.


Disciplinary proceedings

               In June 2000, the Board docketed a formal disciplinary complaint against Granek,

which it subsequently amended in December 2000 and again in January 2001. The complaint was

referred to the State Office of Administrative Hearings, and a hearing was held before an

Administrative Law Judge (ALJ) in January 2001. The ALJ heard evidence and issued a proposal

for decision (PFD) concluding that the Board had established three grounds for discipline.

               First, the ALJ found that, on January 8, 1994, Granek had failed to attend a patient,

L.H., after she had presented herself at the emergency room of the HCA Medical Plaza hospital in

Fort Worth (HCA) with severe pain caused by building pressure within her eye. The ALJ found that

Granek, who was not at the hospital at the time nor “on call,” had refused to return to the hospital

to perform paracentesis or “tapping” of L.H.’s eye with a needle to relieve pressure. Instead, Granek

had maintained that tapping was at best a short-term measure aimed merely at symptoms and had



                                                 2
previously advised L.H. to see a glaucoma specialist to treat her underlying problem. The ALJ

concluded that by this conduct, Granek had “failed to practice medicine in an acceptable professional

manner consistent with public health and welfare,” Tex. Occ. Code Ann. § 164.051(a)(6), and

“commit[ted] unprofessional or dishonorable conduct that is likely to . . . injure the public.” Id.

§§ 164.051(a)(1), 164.052(a)(5) (West 2004). Both violations are grounds for physician discipline.

Id.

                As additional support for these ultimate conclusions of law, the ALJ relied on two

sets of legal conclusions regarding Granek’s duties to L.H. in these circumstances. First, the ALJ

concluded that Granek breached the tort duty not to abandon L.H. See King v. Fisher, 918 S.W.2d

108, 112 (Tex. App.—Fort Worth 1996, writ denied); Lee v. Dewbre, 362 S.W.2d 900, 902 (Tex.

Civ. App.—Amarillo 1962, no writ).2 Second, the ALJ derived a set of physician-patient duties from

Lunsford v. Board of Nurse Examiners, 648 S.W.2d 391 (Tex. Civ. App.—Austin 1983, no writ).3


       2
          Patient abandonment is a form of breach of duty in a medical malpractice action. Elements
of an abandonment claim are (1) the unilateral severance of the doctor-patient relationship by the
doctor; (2) without reasonable notice or without providing adequate alternative medical care; (3) at
a time when there is a necessity of continuing medical attention. King v. Fisher, 918 S.W.2d 108,
112 (Tex. App.—Fort Worth 1996, writ denied).
       3
          In Lunsford, this Court affirmed an order of the Board of Nursing Examiners imposing
discipline for “unprofessional or dishonorable conduct” in refusing to treat a patient who had
presented himself at an emergency room with chest pains. The patient subsequently died while en
route to another hospital. In response to the nurse’s claim that she owed no duty to care for the
patient, we found such a duty based in part on the following assertions:

           When appellant received the privilege of being licensed as a nurse in this State,
           she entered into a covenant to serve the people of this State with all her
           professional skills and powers. This suit is not brought in contract or in tort by
           one individual who feels he or she has been wronged by appellant’s actions or

                                                   3
Citing Lunsford, the ALJ concluded that “[a] license to provide medical services is a covenant to

serve the people of the State of Texas with professional skill and power and a contract to always act

in a professional and honorable manner,” and that Granek broke his “covenant to serve the people

of the State of Texas with all his professional skills and powers” and his “contract with the people

of the State of Texas to act in a professional and honorable manner.” See id. at 395.

               The second ground for discipline found by the ALJ was based on occupations code

section 164.051(a)(7). See Tex. Occ. Code Ann. § 164.051(a)(7) (West 2004). That provision

applies when a licensee “is disciplined by a licensed hospital or medical staff of a hospital, including

removal, suspension, limitation of hospital privileges, or other disciplinary action, if the board finds

that the action: (A) was based on unprofessional conduct or professional incompetence that was

likely to harm the public; and (B) was appropriate and reasonably supported by evidence submitted

to the board.” Id. The ALJ based this conclusion on findings that Granek failed to comply with the

requests of both the emergency room doctor and the HCA chief of staff to attend L.H. on January

8, 1994; that the chief of staff had summarily suspended Granek’s hospital privileges for his refusal;

that an ad hoc peer review committee at HCA had rescinded the summary suspension but




          inaction, but this suit is brought by the people of this State for appellant’s
          violation of her contractual duties to them to always act in a professional and
          honorable manner.

Lunsford v. Board of Nurse Exam’rs, 648 S.W.2d 391, 395 (Tex. Civ. App.—Austin 1983, no writ).

                                                   4
recommended placing Granek on a twelve-month probated suspension with monitoring; and that this

recommendation had been affirmed in a final decision of the HCA Board of Trustees.

               The third ground for discipline found by the ALJ related to allegations that Granek

had improperly touched the breasts of female patients during the 1980s. The ALJ found that Granek

had touched the breasts of two patients, J.G. and K.G., although she found that Granek had acted

intentionally only with regard to J.G.4 Based on her fact-findings that Granek had intentionally

touched J.G.’s breasts and touched K.G.’s breasts, the ALJ concluded that Granek had “failed to

practice medicine in an acceptable professional manner consistent with public health and welfare,”

Tex. Occ. Code Ann. § 164.051(a)(6), and “commit[ted] unprofessional or dishonorable conduct that

is likely to . . . injure the public.” Id. §§ 164.051(a)(1), .052(a)(5). The ALJ also based these

ultimate conclusions on her conclusions of law, derived from Lunsford, that Granek’s medical

license was a “covenant to serve the people of the State of Texas with all his professional skills and

powers” and a “contract with the people of the State of Texas to act in a professional and honorable

manner.” See Lunsford, 648 S.W.2d at 395.

               Having concluded that the Board had established three bases for imposing physician

discipline, see Tex. Occ. Code Ann. § 164.001(b), the ALJ proceeded to make findings of fact and

conclusions of law regarding a recommended penalty:


       20. . . . Respondent is qualified for a probated sanction.


       4
          The ALJ found that the Board had failed to prove similar allegations regarding two other
patients. In addition, the Board raised three other allegations that were either dismissed voluntarily
or found to be unproven. None of these allegations are at issue in this appeal.

                                                  5
       21. Based on the foregoing, the Board may suspend Respondent’s license[] to
           practice medicine for three years but probate that suspension for a three-year
           period conditioned on his successfully completing educational courses designed
           to enhance his knowledge of professional ethics and to improve his ability to
           communicate with patients.

       22. Based on Findings of Fact Nos. 70-71, there is insufficient evidence to
           determine an appropriate administrative penalty against Respondent.


In her PFD, the ALJ expressed concern regarding the staleness of the Board’s improper contact

allegations, which were based on events that had occurred as many as fifteen years before the

hearing. She also included a finding that “Staff’s allegations in this case were stale, the latest

complaint dating from approximately 1994,” and further elaborated in her PFD that she viewed

staleness as a mitigating factor.


       The staleness of [the Board] Staff’s complaints must be considered a mitigating
       factor. It is simply unfair to all persons involved in the disciplinary process for
       complaints to languish for years as they did in this case. Over time memories fade
       or become distorted, records and witnesses are lost, rules and statutes alter, all
       adversely affecting the disciplinary process. If a complaint is important enough to
       prosecute, it should be done in a timely fashion.

       Some of the incidents that became complaints in this matter occurred in the late
       1980s. The most recent complaint was from 1994. Staff did not file its complaint
       against Respondent until 2000. Staff’s dilatoriness in prosecuting the complaints
       ultimately makes the Board’s decision that much harder. When the public welfare
       and a person’s professional livelihood and reputation are at stake, justice delayed is
       justice diminished. The staleness of the complaints in this matter was an injustice
       both to complainants and Respondent.


The Board’s original order of April 24, 2002

               In an order dated April 24, 2002, the Board adopted each of the ALJ’s proposed

findings of fact except for three that are not material to this appeal. It also adopted all of the ALJ’s

                                                   6
conclusions of law material to this appeal except that it rejected conclusions of law 20 (that Granek

“is qualified for a probated sanction”) and 21 (that the Board could suspend Granek’s license for

three years conditioned on his completion of required education). In lieu of conclusions 20 and 21,

the Board ordered that Granek’s medical license be immediately revoked. It provided the following

four-paragraph explanation (italics in original):


       The Board omitted the ALJ’s proposed conclusions of law Nos. 20 and 21 in this
       Final Order, and renumbered the ALJ’s proposed conclusion 22 as 19 in this Final
       Order.

       The ALJ’s proposed conclusion of law No. 20 stated: “Based on Findings of Fact
       Nos. 57-58, Respondent is qualified for a probated sanction.”

       The ALJ’s proposed conclusion of law No. 21 stated: “Based on the foregoing, the
       Board may suspend Respondent’s license[] to practice medicine for three (3) years
       but probate that suspension for a three-year period conditioned on his successfully
       completing educational courses designed to enhance his knowledge of professional
       ethics and to improve his ability to communicate with patients.”

       The ALJ’s proposed conclusions of law Nos. 20 and 21 are not really conclusions of
       law at all, but recommended sanctions. While it may be appropriate for the ALJ to
       recommend a sanction, it is ultimately up to the Board to determine what the
       appropriate sanction should be. The ALJ believes the relative minor sanction of a
       three year suspension of Respondent’s license is sufficient, the Board disagreed, and
       concluded that the revocation of Respondent’s license is the only sanction that will
       adequately protect the public. Respondent’s conduct of fondling and molesting
       patients while performing ophthalmologic examinations on them is not a problem
       that will be corrected by additional continuing medical education as suggested by
       the ALJ. Respondent has engaged in this conduct over a period of many years.
       There was no evidence that Respondent has sought any treatment for his inability to
       control his prurient desires, nor in fact was any evidence admitted that the
       Respondent’s defects in character can be treated. The Board feels that the sanction
       of revocation of Respondent’s license is the only sanction that will adequately protect
       the public. The Board will not condone the Respondent’s assaulting, fondling or
       molesting one other patient by under [sic] the guise of practicing medicine by
       allowing him to retain his medical license.



                                                    7
Granek’s appeal and subsequent Board orders

                On May 13, 2002, Granek filed a motion for rehearing of the Board’s April 24 order.

On June 10, a few days after his motion for rehearing expired by operation of law, Granek filed a

petition for judicial review of the Board’s order in the Travis County district court. He also sought

injunctive relief to prevent the Board from enforcing its order during the pendency of his

administrative appeal. On June 11, the district court granted a temporary restraining order enjoining

the Board from enforcing its order “[p]rovided, however, that Plaintiff must not treat female patients

without an assistant present.” At the TRO hearing, the court evidently expressed concern that the

Board’s allegations against Granek were stale and that revocation was a disproportionate penalty.

                The temporary injunction hearing regarding the April 24 order was subsequently held

on June 27, 2002. At the hearing, counsel for the Board recounted the events at the TRO hearing

and represented that Board staff “took [the district court’s] words to heart” and had requested that

the Board reconsider the revocation sanction it had assessed against Granek. However, Board

counsel explained that, in his view, the Board was without jurisdiction to modify its order while

Granek’s suit for judicial review was pending. Board counsel thus requested that the court formally

“remand this case back . . . for the limited purpose of them reassessing the penalty, not to remand

the whole thing back.” While not appearing to oppose this measure, Granek’s counsel insisted that

injunctive relief was necessary in the interim to prevent the Board from enforcing its still-live order.

                The trial court issued a written order dated August 12, 2002, enjoining the Board from

enforcing its April 24 order, staying that order, and setting trial on the merits.5 The court further



        5
         The court explained that it enjoined the April 24 order because “Section 164.001 [of the
occupations code] tells me that the order is live and operative unless it is stayed.”

                                                   8
remanded the April 24 order for “further proceedings . . . limited to a reconsideration and possible

further action relating to the penalty imposed against . . . Granek” and ordered that, “If

reconsideration and further action is taken,” the Board was to “file any such changes or decisions

with the Court.”

               On remand, the Board reconsidered its April 24 order during a meeting on August 16,

2002. On the same day, it issued a new “Final Order” that was substantively identical to the Board’s

April 24 order except that it changed the sanction from immediate license revocation to a three-year

probated license suspension, subject to sixteen terms and conditions. The Board’s first condition

was “Respondent shall not examine or treat patients.” Another condition required Granek to provide

a copy of the order to all health care facilities where he had or sought privileges. The Board

additionally assessed an administrative penalty of $25,000, notwithstanding its undisturbed

conclusion of law 19 that “there is insufficient evidence to determine an appropriate administrative

penalty against Respondent.” Finally, although the Board replaced its original revocation sanction

with a three-year probated suspension, it retained in full its explanation for the revocation sanction

from the April 24 order.

               On September 23, 2002, the Board issued an “Amended Final Order” purporting to

correct a “typographical error” in the conditions stated in the August 16 order and ordering that

Granek could not treat female patients during his probation period; he was permitted to treat male

patients. Granek was served with a copy of the Amended Final Order under a cover letter advising

him of his right to seek rehearing within twenty days of receipt. He did not file a motion for

rehearing specifically addressed to this order.



                                                  9
                On October 25, 2002, shortly before the temporary injunction was to expire,6 Granek

obtained, in his pending suit for judicial review, a new temporary injunction enjoining the Board

from enforcing its April 24 order pending trial on the merits.7

                On July 18, 2003, the district court heard Granek’s administrative appeal on the

merits. On September 4, the court rendered judgment reversing and remanding “the action of the

Texas State Board of Medical Examiners,” with apparent reference to the Board’s September 23,

2002 Amended Final Order. The district court held that the $25,000 administrative penalty could

not be supported by the findings and conclusions adopted by the Board. Specifically, the penalty

contradicted conclusion of law 19, that “there is insufficient evidence to determine an appropriate

administrative penalty against Respondent.” The court affirmed the Board’s order in all other

respects. On remand, the Board accepted the district court’s judgment and opted to “take no further

action regarding the imposition of any administrative penalty” against Granek.

                Granek now appeals the Board’s order concluding that grounds exist for discipline

and imposing sanctions against him.


                                          DISCUSSION

                Granek brings five issues, complaining that: (1) the Board violated due process by

waiting until its allegations were stale and he had suffered actual prejudice before prosecuting its

disciplinary action against him; (2) the Board’s findings of grounds for discipline are not supported

       6
           See Tex. Occ. Code Ann. § 164.011(c) (West 2004).
       7
          By this juncture, under the limited scope of the remand, the Board had already replaced its
original April 24 order with the September 23 Amended Final Order. Granek apparently sought this
relief out of an abundance of caution that the original April 24 order might still be effective.

                                                 10
by substantial evidence; (3) the Board committed an error of law in modifying the ALJ’s PFD to add

its four-paragraph explanation regarding sanctions because it contains unproven assertions regarding

Granek’s conduct; (4) the Board committed an error of law and exceeded its statutory authority by

predicating its disciplinary findings upon legal duties derived from Lunsford v. Board of Nurse

Examiners; and (5) the Board committed an error of law by applying a preponderance of the

evidence standard, rather than clear and convincing standard, to the administrative hearing seeking

to revoke or suspend his license. See Tex. Gov’t Code Ann. § 2001.174(2) (West 2000).

               As a preliminary matter, the parties dispute whether we must address and affirm each

disciplinary ground found by the Board in order to affirm its order. As previously noted, the Board

made ultimate conclusions of law that Granek’s conduct constituted three grounds for discipline: (1)

Granek’s failure to attend L.H. violated sections 164.051(a)(1) and (6) and 164.052(a)(5) of the

occupations code; (2) Granek was disciplined by HCA so as to constitute a ground for discipline

under section 164.051(a)(7); and (3) Granek’s improper contact with K.G. and J.G. violated sections

164.051(a)(1) & (6) and 164.052(a)(5). Any one of these grounds could have independently

supported the Board’s disciplinary action. See Tex. Occ. Code Ann. § 164.001(b). The Board points

out that where its disciplinary sanction is based upon multiple, independently sufficient grounds, we

affirm the order if any one of the grounds can support the sanction awarded. Texas State Bd. of Med.

Exam’rs v. Scheffey, 949 S.W.2d 431, 436 (Tex. App.—Austin 1997, writ denied); Guerrero-

Ramirez v. Texas State Bd. of Med. Exam’rs, 867 S.W.2d 911, 918 (Tex. App.—Austin 1993, no

writ). Relying on this principle, the Board contends that we should affirm its order if even a single

disciplinary ground is legally supported.



                                                 11
                In our original opinion, we overruled Granek’s issues with regard to the two

disciplinary grounds relating to L.H. and presumed, in light of Scheffey and Guerrero-Ramirez, that

we did not need to address his issues as to the third ground relating to improper contact with patients.

On rehearing, Granek asserted that, according to its order, the Board did not base the sanctions it

assessed on each found violation independently or alternatively, but relied on the cumulative weight

of all three violations.8 He contended that by holding that the two grounds relating to abandonment

of L.H. supported the Board’s disciplinary sanctions, we improperly speculated regarding the

Board’s reasoning and substituted our judgment for that of the Board. Granek also observed that,

in assessing sanctions, the Board appeared to rely primarily on its disciplinary ground that Granek

had improper contact with patients, yet we did not review the Board’s findings and conclusions

supporting that important ground.

                Without deciding whether we are necessarily required to do so, we will proceed to

examine each of the three disciplinary grounds found by the Board.


Due process

                In his first issue, Granek urges that the Board violated his due process rights by

waiting over thirteen years to prosecute its allegations regarding improper contact with K.G. and J.G.

and over six years to prosecute its allegations regarding L.H. and the HCA disciplinary action.




        8
          Following its ultimate conclusions of law finding each ground for discipline, the order
states: “Based on the foregoing, the Board should discipline Respondent.”

                                                  12
Citing several cases from other jurisdictions involving delays by medical or other professional

disciplinary boards, Granek argues that due process barred the Board from prosecuting its

disciplinary action because the delay has caused him actual prejudice. See Appeal of Plantier, 494

A.2d 270 (N.H. 1985). As proof of actual prejudice, he cites examples from the record purporting

to illustrate that “[e]very fact witness at the administrative hearing testified to problems remembering

the events at issue” and that “[t]he delay also caused the loss of physical evidence.” The Board

characterizes Granek’s examples of alleged prejudice as out-of-context references regarding

immaterial details that stem from “Dr. Granek’s counsel’s confusing cross examination.” The Board

further contends that even if its delay did cause Granek prejudice, its order should not be reversed

because the appropriate legal standard governing Granek’s due-process complaint is that employed

by the Texas Court of Criminal Appeals with regard to pre-indictment delay. See Ibarra v. State,

11 S.W.3d 189, 193 (Tex. Crim. App. 1999). This test requires a showing of both actual prejudice

and that the State intentionally delayed in order to gain a tactical advantage over the defendant. Id.

at 193.


    Due process analysis of agency prosecutorial delay

               Claims regarding deprivation of constitutional rights present questions of law and we

accordingly review them de novo. State v. Hodges, 92 S.W.3d 489, 494 (Tex. 2002). The due

process protections of our federal and Texas constitution apply to agency proceedings. See Langford

v. Employees Ret. Sys., 73 S.W.3d 560, 568 (Tex. App.—Austin 2002, pet. denied); see also Texas

Health Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 454 (Tex. 1984) (“when

a denial of due process has resulted in the prejudice of substantial rights of a litigant,” agency’s

                                                  13
action is arbitrary and capricious even if supported by substantial evidence); Tex. Gov’t Code Ann.

§ 2001.174(2)(A) (West 2000). Although statutes of limitations provide the primary assurance

against prosecution of unduly stale claims or charges, due process can provide independent and

additional protections. See Ibarra, 11 S.W.3d at 193 (due process provides some protection against

undue pre-indictment delay in murder prosecution, which has no statute of limitations in Texas);

State v. McCoy, 94 S.W.3d 296, 301-02 (Tex. App.—Corpus Christi 2002, no pet.) (addressing due

process claim based on alleged pre-indictment delay in prosecuting crime within applicable

limitations period). The fact that the legislature has not prescribed a limitations period for the

Board’s disciplinary proceedings does not foreclose Granek’s due-process complaint. See generally

Tex. Occ. Code Ann. §§ 164.051-.204 (West 2004). At the same time, the fact that the Board may

have delayed beyond the limitations periods for crimes and torts comparable to Granek’s alleged

acts9 does not in itself compel us to find a due-process violation.

               To address Granek’s due process complaint, we must first ascertain the appropriate

standard to apply. Neither party cites any Texas case addressing the due-process implications of pre-

prosecution delays in agency disciplinary actions. The Board urges that we apply the test applicable

to due-process complaints regarding pre-indictment delay in criminal cases, which requires a

showing of both actual prejudice and that the government intentionally delayed in order to obtain

a tactical advantage over the accused. See United States v. Lovasco, 431 U.S. 783, 789 (1977);


       9
            See Tex. Pen. Code Ann. §§ 21.07 (West 2003) (public lewdness, classified as
misdemeanor), 22.01 (West Supp. 2004-05) (assault, classified as misdemeanor); Tex. Code Crim.
Proc. art. 12.02 (West 2005) (two-year statute of limitations for misdemeanors); Tex. Civ. Prac. &
Rem. Code §§ 16.003(a) (West 2002) (two-year statute of limitation on civil actions), 74.251(a)
(West Supp. 2004-05) (two-year statute of limitations for medical malpractice claims).

                                                 14
Ibarra, 11 S.W.3d at 193. Granek responds that this test, derived in the criminal context, is

inappropriate for civil administrative proceedings and that we should look solely to whether the

delay caused him actual prejudice. Cf. City of Corpus Christi v. Public Util. Comm’n, 51 S.W.3d

231, 262-63 (Tex. 2001) (in addressing due process claim regarding hearing procedure, questioning

whether procedure caused actual injury). We agree with Granek that he is not required to show that

the Board intentionally delayed its prosecution against him to obtain a tactical advantage but need

show only actual prejudice.

               The requirement that criminal defendants complaining of due process violations from

pre-prosecution delay prove intentional delay for tactical advantage derives from judicial recognition

of the unique responsibilities and role of prosecutors. In Lovasco, the United States Supreme Court

reasoned that due process would tend to be served, rather than undermined, by permitting a

prosecutor to fully investigate a criminal case “until he is completely satisfied that he should

prosecute and will be able promptly to establish guilt beyond a reasonable doubt” before seeking

indictment. Lovasco, 431 U.S. at 795. The court emphasized the professional duties of prosecutors,

the demands of proving criminal charges beyond a reasonable doubt, and the deference traditionally

afforded prosecutorial discretion in determining whether and how to proceed with criminal

prosecutions. Id. at 790-95.

               These characteristics of criminal prosecutions and prosecutors are lacking in Board

disciplinary proceedings. Such proceedings are civil in nature, and, as we discuss below, the Board

is not required to prove its case beyond a reasonable doubt. See Tex. Occ. Code Ann. §§ 165.001-

.103 (West. 2004). Moreover, at least in this case, there is no suggestion that the Board’s long delay



                                                 15
was the legitimate product of investigative efforts warranted by the Board’s need to gather evidence

and prepare sufficiently to prevail. The Board’s claims rested upon straightforward “swearing

matches” between Granek and other witnesses and tended to be weakened, rather than strengthened,

by the passage of years, as the proceedings before the ALJ ultimately demonstrated.10 While we are

not second-guessing the Board’s administrative decisions regarding resource allocation or the haste

with which it has processed disciplinary complaints in the past, we note these circumstances because

they distinguish the Board’s delay in this case from the prosecutorial investigative delay that

underlies the due process standard articulated in Lovasco and Ibarra.11

                Accordingly, in order to prevail on his due process defense, Granek need only prove

that the Board’s delay caused him actual prejudice. This requires us to consider the degree of

harmful effect from delay that will rise to constitutionally significant prejudice. The ALJ expressed

grave concern that the Board’s allegations were stale. However, this does not mean that Granek’s

due process rights were violated. Not all deterioration in the quality of proof due to delay constitutes

actual prejudice. The fact that witness memories fade over time is an inherent feature of eyewitness

testimony and memory, like other matters bearing on the accuracy of a witness’s perceptions, is

traditionally tested through cross-examination and weighed by the fact-finder. In delineating the




        10
           For example, the complainant supporting certain other of the Board’s allegations below,
a patient named P.G., died during the pendency of the complaint, crippling the Board’s ability to
prove those allegations.
       11
          We also observe that, under the Board’s proposed due process test, it is questionable
whether defendants could ever establish that a prejudicial delay by the Board was intentionally
sought for tactical advantage. Texas law shields virtually all Board investigative materials from
discovery. Tex. Occ. Code Ann. § 164.007(c) & (d) (West 2004).

                                                  16
point at which actual prejudice arises, we must avoid improperly encroaching into this traditional

purview of the fact-finder.

               We obtain guidance regarding the nature of actual prejudice from Texas criminal

cases and administrative disciplinary decisions from other states. The Texas Court of Criminal

Appeals has implied that “proof that exculpatory evidence or witness became unavailable to [the

defendant] during the delay” might establish constitutionally significant prejudice. Ibarra, 11

S.W.3d at 193. In analogous cases from other states involving pre-prosecution delays in agency

disciplinary proceedings, those courts have applied similar due-process standards, considering the

extent to which agency delay has caused witnesses to become unavailable or the defendant or other

witnesses to forget the relevant events. Compare Sibley v. North Carolina Bd. of Therapy Exam’rs,

566 S.E.2d 486, 488 (N.C. App. 2002) (despite over five-year delay, “the record before us does not

reveal that any of the witnesses had problems recollecting the events which transpired, nor has

petitioner shown that any witness is now unavailable, nor has petitioner shown difficulty in

remembering the events.”); Giffone v. DeBuono, 263 A.2d 713, 714-15 (N.Y. App. Div. 1999) (in

1997 agency disciplinary proceeding relating to events in 1970s and 1980s, held that defendant failed

to show actual prejudice where he could not demonstrate particular lost documents, witnesses, or

items of evidence which, if available, would cast doubt upon opposing evidence), and Reddy v. State

Bd. of Prof’l Med. Conduct, 259 A.2d 847, 848-49 (N.Y. App. Div. 1999) (no due process violation

where “proof of the alleged misconduct was primarily based upon the testimony of the complaining

witnesses and petitioner, who recalled details of the events with clarity”), with Appeal of Plantier,




                                                 17
494 A.2d 270, 272-75 (N.H. 1985) (due process violated by prosecution of decade-old allegation

where sole evidence was the patient’s eyewitness testimony, and doctor and staff had no independent

recollection of patient’s fifteen-minute appointments). These courts have also looked to whether the

relevant events were contemporaneously recorded and whether the defendant had early notice of the

allegations against him. See Sibley, 566 S.E.2d at 488 (noting that in lawsuit filed two years after

alleged incident, accuser had answered interrogatories under oath; “consequently, [the defendant]

was aware of the specifics of the allegations in the Board’s notice of hearing” two years thereafter);

Giffone, 263 A.2d at 714-15 (defendant had retained office notes from appointments where disputed

events allegedly occurred); Appeal of Plantier, 494 A.2d at 274 (while stale allegations based solely

on credibility of eyewitness accounts “significantly increase the problems of proof and . . . increase

the danger of false, fraudulent, frivolous, speculative or uncertain claims,” “disciplinary actions

turning on evidence that is documentary in nature are less likely to be prejudiced by the passage of

time.”).

                Having identified the appropriate standard governing our analysis of Granek’s due

process issue, we now apply it to each of the three disciplinary grounds the Board prosecuted against

him.


       Application

           Improper contact allegations

                We conclude that the Board violated due process by prosecuting its allegations that

Granek improperly touched K.G. after a thirteen-year delay. We find it significant that the ALJ




                                                 18
observed firsthand that the “staleness of K.G.’s complaint was more of a disadvantage to Respondent

than Staff.” Moreover, the ALJ found that, at most, Granek had made inadvertent contact with

K.G.—a finding that the Board adopted—and credited Granek’s assertions that he could not recall

the incidents K.G. alleged. There was no evidence of any contemporaneous or proximate event that

would have put Granek on notice of any complaint regarding contact with K.G. It was undisputed

that K.G. never mentioned her concerns to Granek, and there was no documentary evidence

memorializing the incidents she alleged.

               Furthermore, Granek estimated that during his career he had handled 250,000 patient

visits involving 25,000 patients. We agree with the ALJ that Granek “could not be expected to

remember every arm position or contact he maintained during some six office visits [with K.G.], the

last of which occurred about fifteen years ago.” For the same reasons, Granek was incapable of

defending against a thirteen-year old allegation that, during a handful of these thousands of patient

visits, he unknowingly made accidental contact with a patient’s breasts, especially where the sole

evidence was the patient’s word against his. See Appeal of Plantier, 494 A.2d at 272-75. We

conclude that the Board violated due process in prosecuting such an allegation.

               However, we conclude, as did the ALJ, that “[b]ecause Respondent had

contemporaneous notice [of] J.G.’s complaint, staleness was not as much of a concern as with some

other complainants.” It is undisputed that J.G. confronted Granek following her final patient visit

in 1987, complained that he had touched her inappropriately during nearly every one of her patient

visits, and told him that it made her uncomfortable. J.G. either told Granek, or Granek discerned,




                                                 19
that the source of J.G.’s concerns was his touching of her breasts. Both J.G. and Granek recounted

that Granek denied that any contact was intentional. This is the same position that Granek asserted

before the ALJ, and continues to assert today. See Sibley, 566 S.E.2d at 488 (emphasizing

importance of early notice of allegations in alleviating due process concerns).

               Furthermore, it is also undisputed that, following the confrontation, J.G. wrote Granek

a letter regarding the incident, and that Granek responded by calling J.G., reiterating that he did not

deliberately touch her, and assuring her that he did not want her to feel uncomfortable. J.G. and

Granek likewise agree that, within a few months, J.G. filed a written complaint with the Tarrant

County Medical Society. Although J.G.’s letters and complaint are not in the administrative record,

we can discern from testimony that the documents continued to exist and were not lost or destroyed

during the intervening years. See Giffone, 263 A.2d at 714-15 (importance of defendant’s retention

of office notes from disputed appointments); Appeal of Plantier, 494 A.2d at 274 (acknowledging

that disciplinary actions based on documentary evidence “are less likely to be prejudiced by the

passage of time”).

               Granek counters that, while he had notice in 1987 that J.G. believed he had touched

her inappropriately, she had been vague regarding the nature of his contact. Granek contrasts the

nature of her contemporaneous complaint with J.G.’s testimony before the ALJ in 2001. At the

hearing, J.G. testified that she had shielded herself with magazines to prevent Granek from touching

her breasts, yet Granek persisted in doing so. Granek claims that he had never heard this version of

J.G.’s allegations until she testified at the hearing. He urges that the Board violated due process by




                                                  20
forcing him to defend what he asserts were newly fabricated allegations when time had faded

memories of various collateral facts that he could have used to rebut them—such as the identities

of other hospital staff who may have been present during the alleged incidents, the rooms in which

the alleged incidents occurred and their configuration, and whether J.G. was seated or laying down

when the alleged incidents occurred.

               Such inconsistencies in accounts, however, are ordinarily a subject of cross-

examination, not indicia of a due process violation. In fact, Granek did cross-examine J.G. regarding

inconsistencies between her contemporaneous accounts and her hearing testimony, as well as the

details of her surroundings when the incidents occurred. While at times confused or inconsistent

regarding her surroundings when the events in question occurred, J.G. testified in detail regarding

how Granek had touched her and remained unequivocal as to those facts. See Reddy, 259 A.2d at

848-49 (no due process violation where complainant “recalled details of the events with clarity.”).

We also emphasize that the ALJ, the sole judicial actor to hear J.G.’s testimony and cross-

examination firsthand, found her to be a “credible witness.” We cannot conclude that the Board’s

prosecution of the allegations relating to J.G. violated due process.


         Allegations regarding L.H.

               We conclude that the Board’s prosecution of its two allegations relating to L.H. also

did not violate due process. The ALJ—the sole judicial actor in a position to hear the witness’s

testimony firsthand and assess memory and other factors bearing on credibility—did not appear to

regard the Board’s six-year delay as creating the type of staleness problems present with the




                                                 21
improper contact allegations. Granek cites the following as proof of actual prejudice: (1) two

eyewitnesses, Drs. Green and Rosenthal, testified based on their notes or medical records rather than

independent recollection; (2) Dr. Green testified that he “almost remember[ed]” a letter being written

to Granek upholding his initial suspension and that Green did not remember the HCA board’s final

decision but only “the spirit of the final decision”; (3) no written record of the HCA board’s final

decision survived; (4) Dr. Green could not recall certain details regarding his conversations with

Granek or Dr. Bruhl, the emergency room physician; (5) Dr. Bruhl testified that he could not recall

the exact words of his conversation with Granek, but “just the gist of the conversation,” explaining

“remember, this is six years ago, and I’m doing my best to—give a fair representation of what my—I

mean an accurate representation of what my recall is.” We have reviewed the record and conclude

that, when viewed in their proper context, none of these examples establish actual prejudice that

could give rise to a due-process violation.

               Regarding Drs. Green and Rosenthal’s reliance on notes, at least one court has

pointed to the existence of contemporaneously recorded notes as a factor which mitigates the

potential prejudice from a stale agency disciplinary claim. See Giffone, 263 A.2d at 714. As for Dr.

Green’s testimony regarding HCA’s disciplinary actions against Granek, Granek himself

acknowledged receiving a private letter of reprimand from the hospital regarding his actions toward

L.H. Furthermore, the reference to Dr. Green’s reliance on the “spirit of the final decision” is taken

somewhat out of context. Green testified that he was present when the HCA board orally announced

its final decision, and that the decision was to uphold Green’s disciplinary action against Granek.

Granek’s other attacks against the testimony of Drs. Green and Bruhl are chiefly out-of-context




                                                 22
references regarding peripheral facts; both testified regarding the material elements of the

allegations. Due process was satisfied.


    Disposition

               We sustain Granek’s first issue as to the Board’s allegations regarding K.G., but

otherwise overrule it. We consider the effect of this disposition on our consideration of the

remainder of Granek’s issues. Regarding improper contact with patients, the Board made the

ultimate conclusion of law that “[b]ased on the Findings of Fact Nos. 45-56 and Conclusions of Law

Nos. 10-14, Respondent violated § 164.051(a)(1) and (6) and 164.052(a)(5).” The referenced

findings and conclusions concerned both K.G. and J.G., and included the finding that “[o]n more

than one occasion during an office visit, Respondent intentionally touched his patient J.G.’s breast

when she tried to avoid his touching by covering her breasts with a magazine.” This finding, if

otherwise valid, would alone support the Board’s ultimate legal conclusion that disciplinary grounds

existed under sections 164.052(a)(5) and 164.051(a)(1) and (6). Cf. Texas State Bd. of Med.

Examn’rs v. Koepsel, 322 S.W.2d 609, 611-15 (Tex. 1959) (sexual assault of patients constituted

“grossly unprofessional or dishonorable conduct . . . likely to deceive or defraud the public” under

statutory predecessor to occupations code section 164.052(a)(5)). We accordingly sustain Granek’s

first issue as it concerns K.G.’s allegations, but otherwise overrule it, and proceed to consider

Granek’s remaining issues as they concern the Board’s disciplinary grounds regarding J.G. and L.H.


Standard of proof

               In his fifth issue, Granek urges that the Board committed an error of law by utilizing

a preponderance of the evidence standard in making its factual determinations regarding each of its

                                                23
claims. Granek argues that due process required the Board to apply a “clear and convincing”

standard of proof. He relies on what he characterizes as a “trend” in other states toward holding that

due process requires clear and convincing evidence in medical disciplinary actions. See, e.g.,

Nguyen v. Washington, 29 P.3d 689 (Wash. 2001); Painter v. Abel, 998 P.2d 931 (Wyo. 2000);

Johnson v. Board of Governors, 913 P.2d 1339 (Okla. 1996).

               There is no Texas authority supporting such a proposition and we have recently

rejected a similar contention with regard to professional licenses issued by the Motor Vehicle Board.

See Pretzer v. Motor Vehicle Bd., 125 S.W.3d 23, 38-39 (Tex. App.—Austin 2003), aff’d in part and

rev’d in part, 138 S.W.3d 908 (Tex. 2004). We emphasized that agency license-revocation

proceedings are civil in nature, that in civil cases “[n]o doctrine is more firmly established than that

issues of fact are resolved by a preponderance of the evidence, and that Texas applies the clear and

convincing standard in civil cases only in ‘extraordinary circumstances,’” such as civil commitment

hearings and involuntary termination of parental rights. Id. at 38-39 (internal quotations omitted).

Following Pretzer, we continue to hold that the proper standard of proof in agency factual

determinations is preponderance of the evidence. We overrule Granek’s fifth issue.


Substantial evidence

               In his second issue, Granek contends that the Board’s findings and conclusions

establishing grounds for discipline are not supported by substantial evidence. Relatedly, in his fourth

issue, Granek complains that the Board committed an error of law in relying on concepts of

physician duties derived from Lunsford v. Board of Nurse Examiners as support for its conclusions


                                                  24
that disciplinary grounds existed . 648 S.W.2d at 395. Granek asserts that Lunsford is inapplicable

and distinguishable because it addressed the duties of a nurse, not physicians, and involved a patient

appearing at a hospital and requesting assistance from an on-duty nurse, whereas Granek had

indisputably left the hospital and was not on call. In response, the Board does not dispute that

Lunsford is inapposite,12 but asserts that its references to the case did not prejudice Granek’s

substantial rights because there was other support for the Board’s conclusions of law authorizing

discipline. We agree with the Board that substantial evidence supports its findings and conclusions

authorizing discipline and that its references to Lunsford did not prejudice Granek’s substantial

rights.

               When reviewing an agency decision under the “substantial evidence” test, we

consider the reliable and probative evidence in the record as a whole. Tex. Gov’t Code Ann.

§ 2001.174(2)(E) (West 2004). We may not substitute our judgment for that of the agency and may

only consider the record on which the agency based its decision. Stratton v. Austin Indep. Sch. Dist.,

8 S.W.3d 26, 30 (Tex. App.—Austin 1999, no pet.). The issue before us is not whether the agency

reached the correct conclusion, but whether there is some basis in the record for its action. See City

of El Paso v. Public Util. Comm’n, 883 S.W.2d 179, 185 (Tex. 1994); see also Texas Health

Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984). The crux of a



          12
           We also note that there is apparently no Texas decision applying the Lunsford duties to
physicians and none that specifically apply to any other health services profession Lunsford’s view
that a health care professional license is a covenant to serve the people of the State of Texas with
“professional skill and power” or a contract “to always act in a professional and honorable manner.”
Lunsford, 648 S.W.2d at 395.

                                                 25
substantial evidence analysis is whether the agency’s factual findings are reasonable “in light of the

evidence from which they were purportedly inferred.” John E. Powers, Agency Adjudications 163

(1990). “[Substantial evidence] does not mean a large or considerable amount of evidence, but

rather ‘such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion’ of fact.” Lauderdale, 923 S.W.2d at 836 (quoting Pierce v. Underwood, 487 U.S. 552,

564-65 (1988); Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). We presume that the

agency’s findings, inferences, conclusions, and decisions are supported by substantial evidence, and

the burden to prove otherwise is on the appellant. Charter Med., 665 S.W.2d at 453; Stratton, 8

S.W.3d at 30. Finally, the agency’s decision should be reversed only if the party challenging the

decision demonstrates that the absence of substantial evidence has prejudiced that party’s substantial

rights. See Locklear v. Texas Dep’t of Ins., 30 S.W.3d 595, 597 (Tex. App.—Austin 2000, no pet.).


    Improper contact with J.G.

               We conclude that, even apart from the Board’s reliance on Lunsford, substantial

evidence supports the Board’s findings and conclusions that disciplinary grounds existed in regard

to Granek’s improper contact with J.G.

               Granek contends that J.G.’s allegations that he touched her breasts while she was

attempting to shield herself with magazines “is too incredible to be believed.” Granek points out that

the episodes occurred in small examining rooms, in a manner in which the Board’s own expert

conceded was “just logistically” hard to imagine. Granek adds that his medical records and J.G.’s

account agree that there was a medical staff member in the room during some of these episodes.


                                                 26
Finally, Granek emphasizes various inconsistencies and contradictions in J.G.’s testimony regarding

whether and when a staff member was in the room, the appearance of the room, and the types of

examinations or procedures Granek was conducting when the incidents occurred.

               In a contested case hearing, the ALJ is the sole judge of witness credibility and is free

to accept or reject the testimony of any witness or even accept “part of the testimony of one witness

and disregard the remainder.” Southern Union Gas Co. v. Railroad Comm’n, 692 S.W.2d 137, 141-

42 (Tex. App.—Austin 1985, writ ref’d n.r.e.). We are not permitted to substitute our judgment for

the ALJ’s regarding the credibility of witnesses. Ford Motor Co. v. Texas Dep’t of Transp., 936

S.W.2d 427, 429-30 (Tex. App.–Austin 1996, no writ). We must resolve evidentiary ambiguities

in favor of the administrative order with a finding of substantial evidence to support the ALJ’s

decision. Railroad Comm’n of Tx. v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex. 1995).

               Texas courts have recognized that “incredible, perjured, or unreasonable” testimony

is not substantial evidence. Firemen’s and Policemen’s Civil Serv. Comm’n v. Brinkmeyer, 662

S.W.2d 953, 956 (Tex. 1984). Mindful of our limitations as an appellate court evaluating a cold

record from a bird’s-eye view, we cannot conclude that J.G.’s testimony rises to this level. Although

somewhat confused and inconsistent regarding the details of her surroundings when the incidents

occurred, J.G. testified unequivocally that Granek touched her breasts despite her attempts to shield

herself with magazines. The ALJ heard this testimony firsthand, was able to observe J.G. and her

demeanor, and concluded that “J.G. made a credible witness.” We cannot second-guess such

credibility determinations in the guise of a substantial-evidence inquiry.



                                                  27
     Failure to attend L.H.

                As previously discussed, the Board concluded that Granek’s failure to attend L.H. in

the emergency room was a failure “to practice medicine in an acceptable professional manner

consistent with public health and welfare,” Tex. Occ. Code Ann. § 164.051(a)(6), and

“unprofessional or dishonorable conduct that is likely to . . . injure the public.” Id. §§ 164.051(a)(1),

164.052(a)(5). The Board based these conclusions upon its fact-findings regarding the episode, as

well as other legal conclusions setting forth the Lunsford duties, which the Board now agrees are

inapplicable, and the tort of patient abandonment. Granek asserts there is not substantial evidence

supporting a finding of patient abandonment because, at all relevant times, L.H. was under the care

of the emergency room physician and staff. See King, 918 S.W.2d at 112. We need not address

whether Granek’s conduct constituted the tort of abandonment because there is other substantial

evidence to support the Board’s ultimate conclusion that Granek’s failure to attend L.H. violated

sections 164.051(a)(1) & (6) and 164.052(a)(5) of the occupations code.

                Our ultimate inquiry is whether substantial evidence supports the Board’s conclusions

that Granek violated the statutory disciplinary grounds of “fail[ing] to practice medicine in an

acceptable professional manner consistent with public health and welfare” and “committ[ing]

unprofessional . . . conduct that is likely to . . . injure the public.” See Tex. Occ. Code Ann.

§§ 164.051(a)(6), .052(a)(5). When enacting these statutory provisions, the legislature did not

explicitly reference tort duties or other common law concepts. Berezowski v. Texas State Bd. of Med.

Exam’rs, No. 03-03-00735-CV, 2004 Tex. App. LEXIS 6255, at *22-23 (Tex. App.—Austin July

15, 2004, no pet.) (memorandum opinion). While such open-ended statutory language invites its

                                                   28
own set of problems, under these circumstances we are required, as with all statutes, to apply its

plain meaning to effectuate the legislature’s intent. See Office of the Attorney Gen. of Tex. v. Lee,

92 S.W.3d 526, 528 (Tex. 2002).

               There is substantial evidence that Granek committed these statutory violations. First,

the Board’s expert, Dr. Christen Held, testified that, based on her review of relevant medical records,

Granek’s care and treatment of L.H. did not meet the standard of care and was a professional failure

to practice medicine consistent with the public health and welfare. See Tex. Occ. Code Ann.

§ 164.051(a)(6). This testimony, which is not challenged on appeal, is sufficient evidence that

Granek failed “to practice medicine in an acceptable professional manner consistent with public

health and welfare.” Id. Furthermore, because patients are considered members of the public, as

noted in conclusion of law 10, see Koepsel, 322 S.W.2d at 611, Held’s testimony also supports the

Board’s conclusion that Granek committed “unprofessional . . . conduct that is likely to . . . injure

the public.” Tex. Occ. Code Ann. §§ 164.051(a)(1), .052(a)(5).


    HCA disciplinary action

               The Board’s controlling conclusion of law that Granek violated occupations code

section 164.051(a)(7) is based on fact-findings that state, in relevant part, that Granek was summarily

suspended by HCA chief of staff Dr. Larry Green, Granek then appealed the suspension to an ad hoc

peer review committee at HCA, the committee rescinded the summary suspension but recommended

a probated twelve-month suspension with monitoring, and the HCA Board of Trustees rendered a

final decision affirming the peer review committee’s recommendation. Granek first contends that


                                                  29
there is not substantial evidence of the action taken by the HCA board because the final decision is

missing from the hospital’s records. We reject this argument because Dr. Green testified that he was

present when the HCA board orally announced its decision to affirm the recommendation of a

probated twelve-month suspension with monitoring.

               Granek next argues that there is not substantial evidence of the other elements of

section 164.051(a)(7), namely, that the Board found that the HCA disciplinary action “was based on

unprofessional conduct . . . that was likely to harm the public.”            Tex. Occ. Code Ann.

§ 164.051(a)(7)(A). We have already concluded that there is substantial evidence to support the

Board’s conclusion that Granek’s failure to attend L.H. constituted “unprofessional . . . conduct that

is likely to . . . injure the public. Id. §§ 164.051(a)(1), .052(a)(5). Because the HCA disciplinary

action was directed to the same conduct, we likewise conclude there is substantial evidence to

support discipline under section 164.051(a)(7).

               We overrule Granek’s second and fourth issues.


The Board’s explanation regarding sanctions

               Having concluded that the Board’s determination that it had grounds to discipline

Granek presents no grounds for reversal, we now turn to whether its actions in determining sanctions

require reversal.

               In his third issue, Granek contends that the Board improperly modified the ALJ’s

order by replacing conclusions of law 20 and 21 with its “ridiculous four paragraph insert,” which

Granek contends does not identify any of the permissible bases under government code section


                                                  30
2001.058(e) and contains factual assertions unsupported by the evidence and inconsistent with the

Board’s own adopted findings.

                An agency may modify an ALJ’s order or change an ALJ’s finding of fact or

conclusion of law only if the agency determines that (1) the ALJ improperly applied or interpreted

the law, agency rules or policies, or prior administrative decisions; (2) the ALJ based her decision

on a prior administrative decision that is incorrect; or (3) a finding of fact contains a technical error

requiring correction. Tex. Gov’t Code Ann. § 2001.058(e) (West 2000). The agency is required to

explain with particularity its specific reason and legal basis for each change made. Id.; Levy v. Texas

State Bd. of Med. Exam’rs, 966 S.W.2d 813, 815-16 (Tex. App.—Austin 1998, no pet.).

                The Board responds that section 2001.158(e) is not implicated for two reasons. First,

the Board argues that an ALJ’s recommendation regarding penalties is not the type of finding of fact

or conclusion of law that is presumptively binding on the Board. See Brinkemyer, 662 S.W.2d at

956; Fay-Ray Corp. v. Texas Alcoholic Beverage Comm’n, 959 S.W.2d 362, 368 (Tex.

App.—Austin 1998, no writ). Second, the Board urges that Granek waived his right to complain of

the Board’s compliance with section 2001.058(e) by failing to file a motion for rehearing after the

Board issued its September 23 Amended Final Order. Finally, the Board contends that Granek was

not prejudiced by the removal of the two conclusions of law because it subsequently modified its

sanctions to a three-year probated suspension, which it characterizes as essentially the same

sanctions that the ALJ had recommended.

                We conclude that section 2001.158(e) is implicated by the Board’s actions. Granek

preserved his right to complain of the Board’s explanation by filing a motion for rehearing to the



                                                   31
Board’s original April 24 order.13 We agree with the Board that it is not required to give

presumptively binding effect to an ALJ’s recommendations regarding sanctions in the same manner

as with other findings of fact and conclusions of law. However, the Board nonetheless provided a

“specific reason and legal basis” for its rejection of proposed conclusions of law 20 and 21 and the

sanctions the ALJ had recommended. The Board explained that “[t]he ALJ’s proposed conclusions

of law are not really conclusions of law at all, but recommended sanctions. While it may be

appropriate for the ALJ to recommend a sanction, it is ultimately up to the Board to determine what

the appropriate sanction should be.” The Board went on to “conclud[e] that the revocation of

Respondent’s license is the only sanction that will adequately protect the public” and, as previously

noted, to elaborate at some length regarding its reasons for imposing that penalty.

               In its explanation, the Board represented that Granek had engaged in the “conduct of

fondling and molesting patients while performing ophthalmologic examinations on them,” had

“engaged in this conduct over a period of many years,” had “an inability to control his prurient

desires,” and “defects in character,” and would continue “assaulting, fondling or molesting . . .

patient[s] . . . under the guise of practicing medicine” if allowed to retain his medical license. None

of these representations are supported by the Board’s findings, and several are flatly contradictory.

The Board established that Granek intentionally touched the breast of only one patient, J.G.; proved

only that he had inadvertently touched the breast of K.G., a claim we have found is barred by due


       13
          Granek did not oppose the remand preceding the September 23 Amended Final Order, and
the remand was limited solely to “a reconsideration and possible further action relating to the penalty
imposed.” Because Granek complains not of the penalty imposed in the Amended Final Order, but
of the Board’s inclusion of its explanation for its original revocation sanction, he preserved error by
raising the complaint in his motion for rehearing of the April 24 order.

                                                  32
process; and failed to prove any other allegations of this nature regarding other patients.

Furthermore, there is no evidence that Granek “engaged in this conduct over a period of many

years”; J.G. testified to, at most, a three to four year period during the 1980s in which the touching

episodes occurred, the last of which was in 1987. The Board’s own findings state that Granek had

changed his behavior since 1994 and “was not shown to constitute a continuing threat to the public.”

                The gravamen of the Board’s explanation is that it imposed its original revocation

sanction based on its own opinions regarding improper contact allegations that had not been proven.

Whatever its original implications, the Board suggests that the continued inclusion of this

explanation in its orders does not prejudice Granek’s substantial rights because it refers to a sanction

that the Board no longer seeks. We disagree.

                The Board’s order now requires Granek to provide a copy of the order to all health

care facilities where he had or sought privileges. In other words, Granek must provide to these

institutions a document containing unproven assertions that he had “fondl[ed] and molest[ed]

patients while performing ophthalmologic examinations on them,” had “engaged in this conduct over

a period of many years,” and was a continuing threat due to his “inability to control his prurient

desires.” These statements were included in a Board order, giving them the imprimatur of a

legitimate adjudicative determination. We can fathom no legitimate basis for the Board to include

these assertions in its order, especially where it now no longer seeks to impose the revocation

sanction to which the explanation was addressed. We hold that the Board’s explanation violates

section 2001.058(e) and is arbitrary and capricious. See Tex. Gov’t Code Ann. § 2001.174(2) (West

2000). We sustain Granek’s third issue.



                                                  33
                                         CONCLUSION

               We conclude that any findings of fact or conclusions of law referring to conduct with

K.G. are improper because the Board was barred by due process from prosecuting its thirteen year-

old allegations regarding K.G. However, its ultimate conclusion that disciplinary grounds exist for

Granek’s improper contact with patients is supported by its findings, conclusions and evidence

regarding J.G. We also overrule Granek’s issues concerning the two disciplinary grounds relating

to L.H. However, we find arbitrary and capricious the Board’s four-paragraph explanation

grounding sanctions on unproven assertions of his “fondling and molesting patients . . . over many

years” and uncontrollable “prurient desires.” These portions of the Board’s order violate section

2001.058(e). See Tex. Gov’t Code Ann. § 2001.058(e).

               We reverse and remand to the Board for further proceedings consistent with this

opinion. See id. With the foregoing exceptions, we affirm the trial court’s judgment.




                                             Bob Pemberton, Justice

Before Justices Kidd, B. A. Smith and Pemberton;
    Justice Kidd Not Participating

Affirmed in Part; Reversed and Remanded in Part

Filed: August 26, 2005




                                                34
