Affirmed and Opinion filed April 11, 2013.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00352-CR

                       PAUL ANTHONY NIX, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 232nd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1301654

                                  OPINION

      Appellant pleaded guilty to one count of unlawfully owning and operating a
pain management clinic. The trial court entered an order of deferred adjudication
and placed appellant on a three-year period of community supervision. In two
issues, we are asked to decide whether the trial court had jurisdiction over the case,
and if so, whether it erred by denying appellant’s motion to quash. Finding no
error, we overrule appellant’s issues and affirm the judgment of the trial court.
                         PLEA TO THE JURISDICTION

      In his first issue, appellant challenges the trial court’s denial of his plea to
the jurisdiction. Appellant essentially contends that the State charged him with a
misdemeanor rather than a felony, and that his case therefore belonged in county
criminal court rather than state district court. Compare Tex. Code Crim. Proc. art.
4.05 (providing that state district courts have original jurisdiction in all felony
cases and certain misdemeanors not implicated here), with Tex. Code Crim. Proc.
art. 4.07 (providing that county criminal courts have original jurisdiction in all
misdemeanors). Such jurisdictional issues are governed by the Texas Constitution
and the statutory procedures relating to the use of charging instruments.
Kirkpatrick v. State, 279 S.W.3d 324, 327 (Tex. Crim. App. 2009). Our review is
de novo. See id.

      ―The presentment of an indictment or information to a court invests the court
with jurisdiction of the cause.‖ Tex. Const. art. V, § 12(b). The law does not
require that the charging instrument be presented strictly without defects. A felony
court may still acquire jurisdiction over a case even though the indictment, because
of its defects, alleges only a misdemeanor. That was the case in Kirkpatrick, where
the State failed to allege the elements that would elevate the charge of forgery from
a misdemeanor to a felony. See Kirkpatrick, 279 S.W.3d at 325. The court of
criminal appeals explained that the test for assessing the trial court’s jurisdiction is
not whether the indictment actually alleges a felony, but whether the indictment,
despite its substantive defects, is ―capable of being construed as intending to
charge a felony (or a misdemeanor for which the district court has jurisdiction).‖
Id. at 328 (citing Teal v. State, 230 S.W.3d 172, 181 (Tex. Crim. App. 2007)). The
indictment in Kirkpatrick satisfied this test because a felony offense existed and
the defendant had notice that the State intended to charge her with the felony:

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specifically, the indictment was returned to a felony court, it described the offense
as a felony in the third degree, and it provided the defendant with citations to the
relevant penal statutes. Id. at 329.

       Following Kirkpatrick, we must now determine whether the indictment in
this case is capable of being construed as intending to charge a felony. With the
formal parts omitted, the indictment alleges that:

       Paul Anthony Nix, hereafter styled the Defendant, heretofore on or
       about November 30, 2010, did then and there unlawfully, intentionally
       and knowingly own and operate a pain management clinic, namely
       North Houston Wellness & Weight Loss Clinic, at 12100 Veterans
       Memorial, Houston, Harris County, and the Defendant was not a
       physician who practices in the State of Texas under an unrestricted
       license to practice medicine.
       The indictment describes the offense as a felony charge, and it was returned
to a court with felony jurisdiction. Although no statutes were cited, the language of
the indictment closely tracks that of section 168.102 of the Texas Occupations
Code. This section is entirely regulatory in nature. It mandates an application
process for obtaining the certification required of pain management clinics. It also
provides that a clinic ―must be owned and operated by a medical director who is a
physician who practices in this state under an unrestricted license.‖1 See Tex. Occ.
Code § 168.102(a).

       The Code does not expressly state whether a person commits a felony or a
misdemeanor when he violates Section 168.102. To determine whether a felony
offense exists, we must accordingly look to guidance from other provisions. Our

       1
         At the time of the alleged offense, the statute describing this requirement was section
167.102 of the Texas Occupations Code. See Act approved June 19, 2009, 81st Leg., R.S., ch.
775, § 1, 2009 Tex. Gen. Laws 1963, 1964. In 2011, the legislature reorganized several
provisions from Chapter 167, including Section 167.102, under Chapter 168. See Act approved
May 19, 2011, 82d Leg., R.S., ch. 91, § 27.001(45), 2011 Tex. Gen. Laws 449, 529.

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analysis requires that we engage in matters of statutory interpretation. When
construing a statute, our primary objective is to ascertain and give effect to the
intent of the legislature. May v. State, 919 S.W.2d 422, 423 (Tex. Crim. App.
1996). We interpret statutes according to the plain and ordinary meaning of the
words used, unless doing so yields an absurd result. Tex. Gov’t Code § 311.011;
Ex parte Ervin, 187 S.W.3d 386, 388 (Tex. Crim. App. 2005).

      Appellant argues that the legislature intended to charge this offense as a
misdemeanor, not a felony. His argument is based on a reading of another
provision that generally establishes a person’s criminal liability under the subtitle
regulating physicians. That provision, Section 165.151, states as follows:

      (a) A person commits an offense if the person violates this subtitle or
      a rule of the board.

      (b) If another penalty is not specified for the offense, an offense under
      this section is a Class A misdemeanor.
Tex. Occ. Code § 165.151.

      Appellant’s argument proceeds like this: because Section 168.102 does not
prescribe a penalty, his criminal liability must be determined by Section 165.151.
This general statute provides only for misdemeanor offenses, not felonies.
Therefore, the district court, which is primarily a felony court, was not vested with
jurisdiction, and it erred by denying his jurisdictional plea.

      The State counters that the indictment alleges a felony and urges that we
read Section 168.102 in conjunction with Section 165.152, rather than Section
165.151. Section 165.152 states:

      (a) A person commits an offense if the person practices medicine in
      this state in violation of this subtitle. . . .
      (c) An offense under Subsection (a) is a felony of the third degree.

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Id. § 165.152. Thus, the State suggests, to operate a pain management clinic, a
person must necessarily be practicing medicine.

      ―Practicing medicine‖ is a defined term under the Occupations Code. It
means:

      the diagnosis, treatment, or offer to treat a mental or physical disease
      or disorder or a physical deformity or injury by any system or method,
      or the attempt to effect cures of those conditions, by a person who:

             (A) publicly professes to be a physician or surgeon; or

             (B) directly or indirectly charges money or other compensation
             for those services.

Id. § 151.002(a)(13). The State contends that the operation of a pain management
clinic meets this definition for the following reasons. First, by owning and
operating a clinic, a person must be in the business of offering to treat another
person’s physical injury or condition. See id. § 168.001 (defining a pain
management clinic as a facility for which most patients are issued a prescription
for opioids, benzodiazepines, and other named drugs). Next, by representing
himself as an owner, the person must also profess to be a licensed physician or
surgeon, because only a physician may legally own and operate such a facility. See
id. §§ 151.002(a)(13)(A), 168.102(a); see also id. § 151.002(b) (stating that the
terms ―physician‖ and ―surgeon‖ are synonyms). Finally, because of the person’s
position, he would also be expected to charge some sort of compensation for his
services, whether directly or indirectly. See id. § 151.002(a)(13)(B).

      We agree with the State’s interpretation. Section 168.102 is not like an
ordinary penal statute; it does not begin with that familiar hallmark, ―A person
commits an offense if . . . .‖ The statute is instead regulatory in nature, generally
prescribing the procedures for certifying a pain management clinic. When read in


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isolation, the statute does not establish that a person is liable for failing to comply
with its terms. Liability is governed by a separate chapter under the Code, where
the legislature provided for a comprehensive range of administrative, civil, and
criminal penalties. See id. §§ 165.001–.160. The parties dispute which statute
should govern the criminal penalty in this case, Section 165.151 or Section
165.152. Facially at least, both statutes could be read as proscribing the same
conduct alleged in the indictment. Compare id. § 165.151(a) (proscribing in
general terms a violation of any statute or administrative rule), with id.
§ 165.152(a) (proscribing the unauthorized practice of medicine). However, when
two statutes address the same purpose or object, and one deals with the subject in
general terms and the other in a more detailed way, we presume that the legislature
intended for the more specific statute to control. See Juarez v. State, 308 S.W.3d
398, 405 (Tex. Crim. App. 2010); State v. Vasilas, 253 S.W.3d 268, 272–73 (Tex.
Crim. App. 2008). Therefore, a strict application of Section 165.151 would not be
appropriate.

      Section 168.102 is best read in conjunction with Section 165.152, which
specifically proscribes the unauthorized practice of medicine. The act of owning
and operating a pain management clinic necessarily contemplates the act of
practicing medicine, as that term has been defined under the Code. Indeed, this
exact construction is promulgated as a rule under the Texas Administrative Code:
―Ownership of a pain management clinic is the practice of medicine.‖ 22 Tex.
Admin. Code § 195.2(f); see also Tex. Gov’t Code § 311.023(6) (providing that a
court may consider administrative constructions when interpreting a statute).

      We conclude that owning and operating a pain management clinic
constitutes the practice of medicine. Appellant was indicted for unlawfully owning
and operating a pain management clinic. The indictment effectively charges him

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with practicing medicine in violation of the Code, a third-degree felony. The
district court was accordingly vested with subject-matter jurisdiction.

                              MOTION TO QUASH

      In his second issue, appellant challenges the trial court’s denial of his motion
to quash. His complaint is that the indictment fails to adequately specify the
activities constituting the charged offense. This issue basically disputes the
sufficiency of the indictment, which presents us with a question of law.
Accordingly, our review is de novo. State v. Moff, 154 S.W.3d 599, 601 (Tex.
Crim. App. 2004).

      The accused is entitled to fair notice of the charged offense. Tex. Const. art.
I, § 10. The charging instrument must convey this notice sufficiently so that the
accused may prepare his defense. State v. Barbernell, 257 S.W.3d 248, 250 (Tex.
Crim. App. 2008). An indictment must set forth the offense ―in plain and
intelligible words.‖ Tex. Code Crim. Proc. art. 21.02(7). An indictment is deemed
sufficient if it charges the commission of an offense ―in ordinary and concise
language of common understanding to know what is meant, and with that degree of
certainty that will give the defendant notice of the particular offense with which he
is charged.‖ Tex. Code Crim. Proc. art. 21.11.

      Generally, an indictment is legally sufficient if it tracks the language of the
statute in question. Moff, 154 S.W.3d at 602; State v. Edmond, 933 S.W.2d 120,
127 (Tex. Crim. App. 1996). An indictment must go beyond the statutory language
only when the statute is not ―completely descriptive of the offense.‖ Haecker v.
State, 571 S.W.2d 920, 921 (Tex. Crim. App. [Panel Op.] 1978). The statutory
language is not completely descriptive of the offense if it uses an undefined term of
indeterminate or variable meaning. Barbernell, 257 S.W.3d at 251; State v. Mays,
967 S.W.2d 404, 407 (Tex. Crim. App. 1998). In such cases, more specific
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pleading is required. Mays, 967 S.W.2d at 407. Likewise, when a statute defines
the manner or means of commission in several alternative ways, an indictment will
fail for lack of specificity if it neglects to identify which of the statutory means it
addresses. Id.

      Case law has traditionally focused on charging instruments that track the
language of penal statutes. See, e.g., Barbernell, 257 S.W.3d at 249 (driving while
intoxicated); Moff, 154 S.W.3d at 600 (misapplication of fiduciary property);
Mays, 967 S.W.2d at 405 (barratry); Edmond, 933 S.W.2d at 121 (official
oppression); Haecker, 571 S.W.2d at 920 (cruelty to animals). This case is unusual
because, as we have already mentioned, Section 168.102 is more regulatory than
penal. On its face, Section 168.102 does not create an offense. A person’s criminal
liability is established only when that statute is read in conjunction with Section
165.152. The indictment, however, does not track the language of Section 165.152;
it does not, for instance, expressly allege that appellant practiced medicine in
violation of the Code. Instead, it approximately tracks the language of Section
168.102, alleging that he owned and operated a pain management clinic when he
was not a physician licensed to practice medicine.

      In his motion to quash, appellant argued that the indictment was not
sufficient even though it seemed to track the language of Section 168.102. He
argued:

      The Indictment fails to adequately specify the activities that the
      Government allegedly contends constitute owning and operating a
      pain management clinic. The Indictment does not explain, for
      example, whether the defendant was the actual owner of the business,
      a shareholder of the corporation that owned the business, whether the
      defendant was a manager employed by the business, or whether the
      defendant treated any patients at the clinic.



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Appellant did not phrase his argument below in terms of Section 165.152. He was
apparently unaware that his charged offense constituted the practice of medicine
until the State responded to his motion to quash.

      In his brief, appellant contends that the indictment is insufficient because
―nowhere . . . does it allege that appellant is practicing medicine.‖ Appellant insists
that if the State wished to charge him with unlawfully practicing medicine, then the
indictment should have been drafted in those terms, and it should have specifically
alleged the manner and means of how he practiced medicine. The State contends
that this argument is waived because it does not comport with appellant’s argument
in the trial court. According to the State, ―the purpose of requiring specificity in an
indictment is to provide a defendant with effective notice of the acts he allegedly
committed, not to advise the defendant on matters of statutory construction
regarding the statutes applicable to the charged offense.‖

      In his brief, appellant generally argues that the indictment insufficiently
alleged the manner and means in which he committed the offense. If we liberally
construe his appellate argument, appellant’s complaint seems to relate to his
contention below. We therefore address it.

      The indictment clearly alleges that appellant violated Section 168.102 by
engaging in proscribed conduct, to wit: by owning and operating a pain
management clinic when he was not a licensed physician. Appellant argued in his
motion to quash that the indictment did not adequately identify how he ―owned and
operated‖ the clinic. Even though the Code does not assign any particularized
definitions to these words, we do not believe that the terms are of ―indeterminate or
variable meaning.‖ Cf. Daniels v. State, 754 S.W.2d 214, 220 (Tex. Crim. App.
1988) (concluding in a delivery of marijuana case that the phrase ―constructive
transfer‖ was not so vague or indefinite as to deny the defendant effective notice of

                                          9
the acts he allegedly committed); see also Black’s Law Dictionary 1130 (7th ed.
2004) (defining ―own‖ as ―to have or possess as property; to have legal title to‖);
Webster’s Third New International Dictionary 1580 (Philip Babcock Gove ed.,
1993) (defining ―operate‖ as ―to perform a work or labor: exert power or influence:
produce an effect‖).

      Generally, added specificity is required in the indictment only where
―additional information . . . is reasonably necessary for the defense to prepare its
case.‖ Moff, 154 S.W.3d at 603; see also Thomas v. State, 621 S.W.2d 158, 161
(Tex. Crim. App. 1980) (op. on reh’g) (―The general rule is that a motion to quash
will be allowed if the facts sought are essential to giving notice.‖ (emphasis
added)); Ferguson v. State, 622 S.W.2d 846, 850 (Tex. Crim. App. 1980) (op. on
reh’g) (holding in controlled substance case that greater particularity was needed
where indictment failed to specify the legal theory of delivery, the statute described
various means of delivery, and delivery is ―the very heart of the offense‖). Some
scholars have suggested that the ―specification of manner and means may be
limited to that conduct constituting the gravamen of the offense.‖ See George E.
Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice and
Procedure § 25:142 (3d ed. 2011). In this case, owning and operating a clinic is not
the gravamen of the offense. There is nothing inherently criminal about owning
and operating a clinic. The heart of this offense is that appellant allegedly owned
and operated a clinic while not being a physician licensed to practice medicine in
this state. Appellant received fair notice of this allegation. He could have
reasonably prepared his case without a specific allegation of such peripheral facts
as whether he was the manager of the clinic or its actual owner. Cf. Barbernell,
257 S.W.3d at 254 (concluding that definitions of ―intoxicated‖ were evidentiary



                                         10
and did not need to be alleged where the DWI statute focused not on the act of
becoming intoxicated, but on the act of the defendant while intoxicated).

      The indictment closely tracked the language of Section 168.102. It also
identified the clinic by name and address, and described appellant’s conduct in
plain and intelligible terms. We conclude that the indictment was sufficiently
specific to apprise appellant of the charge against him. See Tex. Code Crim. Proc.
art. 21.04 (stating that the indictment should provide the accused with enough
certainty ―to plead the judgment that may be given upon it in bar of any
prosecution for the same offense‖). The trial court did not err by overruling his
motion to quash.

                                 CONCLUSION

      Appellant’s two issues are overruled and the judgment of the trial court is
affirmed.


                                      /s/    Adele Hedges
                                             Chief Justice


Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
Publish — Tex. R. App. P. 47.2(b).




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