      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-17-00357-CV



                                George Allibone, M.D., Appellant

                                                  v.

Scott Freshour, in his Official Capacity as Interim Executive Director of the Texas Medical
 Board; Juanita Garner, Investigator of the Texas Medical Board; and the Texas Medical
                                     Board, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
       NO. D-1-GN-16-002967, HONORABLE DARLENE BYRNE, JUDGE PRESIDING



                             MEMORANDUM OPINION

               George Allibone, M.D. appeals from the trial court’s order and judgment denying his

petition for a protective order regarding an administrative subpoena duces tecum (the subpoena)

issued by the Texas Medical Board.1 The Board issued the subpoena in connection with its

investigation of pending complaints that had been filed against Allibone concerning two of his

patients, and the subpoena required Allibone to produce the patients’ medical and billing records.

In the order and judgment, the trial court found the subpoena “reasonable in scope and valid” and

ordered Allibone to comply with the subpoena. In two issues on appeal, Allibone contends that the

trial court committed reversible error by failing to issue findings of fact and conclusions of law and




       1
           We have automatically substituted Scott Freshour, in his official capacity as the Interim
Executive Director of the Texas Medical Board, for the former Executive Director. See Tex. R. App.
P. 7.2(a).
that the trial court abused its discretion when it concluded that the subpoena was reasonable and

relevant to the Board’s pending investigation. Because we conclude that the trial court did not

commit reversible error or abuse its discretion, we affirm the trial court’s order and judgment.2


                                           Background

               After receiving written complaints against Allibone regarding his patients A.S. and

A.L., the Board advised Allibone in June 2016 that it was expanding a pending investigation

concerning other patients to “include the care and treatment of A.S. and A.L.” In the Board’s letter

notifying Allibone of the complaints, the investigator listed the allegations against Allibone

as follows:


       Specifically, it was alleged that A.S. developed a blood clot due to failure of Dr.
       Allibone’s staff to flush the line in between her intravenous (IV) medications.
       Further, regarding A.L., it was alleged that before an infusion was completed your
       staff wanted to go home, so they pulled the IV and sent him home to return in the
       morning for completion, but that he had to [be] admitted to the hospital that evening.
       These allegations fall under the general category violation of:

       164.051(a)(6) Practice inconsistent with public health and welfare
       164.053(a)(b) Failure to supervise delegates


See Tex. Occ. Code §§ 164.051(a)(6) (listing among grounds for disciplinary action, failure “to

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

.053(a)(8) (listing as “unprofessional or dishonorable conduct,” a physician’s failure “to supervise


       2
          In a separate but related appeal, this Court’s cause number 03-17-00360-CV, Allibone
challenges the trial court’s order and judgment concerning a separate subpoena duces tecum relating
to another one of Allibone’s patients. By opinion issued this same date, we affirm the trial court’s
order and judgment in that case.

                                                 2
adequately the activities of those acting under the supervision of the physician”).3 The investigator

also requested that Allibone provide a narrative response describing the care and treatment provided

to A.L. and A.S. by Allibone and his staff and advised him that a subpoena duces tecum

would follow.

                A few weeks later, the Board issued the challenged subpoena. The subpoena directed

Allibone to provide “complete and accurate copies of all medical and billing records” of his patients

A.L. and A.S. within 14 days from the date of service of the subpoena. In the cover letter with the

subpoena, the investigator advised Allibone that the failure to comply with the subpoena constituted

grounds for disciplinary action pursuant to section 160.009(b) of the Texas Occupations Code. See

Tex. Occ. Code § 160.009(b) (stating that failure to comply with subpoena issued under section

153.007 “constitutes grounds for disciplinary action against the person or entity by the appropriate

licensing board”); see also id. § 153.007 (authorizing Board to issue subpoena and subpoena

duces tecum).

                Allibone responded to the Board’s notice letter. He asserted that the complaints

“appear[ed] to be and to have been submitted with malice by Dr. Allibone’s discharged and

disenfranchised past employee and office manager” and denied the allegations, providing narrative

explanations and copies of the purported “relevant” part of the patients’ medical records. He,

however, refused to produce the patients’ remaining medical and billing records. He also objected

to the subpoena and filed the petition for protective order against the Board and its Executive




       3
          Although the letter to Allibone lists section 164.053(a)(b), we conclude that the relevant
section is section 164.053(a)(8) based on the accompanying reference to failure to supervise.

                                                 3
Director and investigator assigned to the case pursuant to Texas Rules of Civil Procedure 176.6(e)

and 192.6(b), see Tex. R. Civ. P. 176.6(e), 192.6(b), and for declaratory judgment pursuant to the

Uniform Declaratory Judgments Act, see Tex. Civ. Prac. & Rem. Code §§ 37.001–.011.

               Among his requests for relief in the petition, Allibone sought a declaration that the

subpoena was “illegal and unconstitutional” because the documents sought by the subpoena were

“irrelevant to the subject matter of the investigation as articulated in the initiating letter.”

He challenged the constitutionality of the subpoena on Fourth Amendment grounds.                   See

U.S. Const. amend. IV.       He also sought a declaration that section 160.009 of the Texas

Occupations Code and related Board rules were unconstitutional. See Tex. Occ. Code § 160.009;

22 Tex. Admin. Code § 190.8(2)(B), (D) (Texas Medical Board, Violation Guidelines) (listing as

“unprofessional and dishonorable conduct” “failing to comply with a board subpoena or request for

information or action” and “failing to cooperate with board staff”). He contended that the statute and

rules were unconstitutional because “the regulatory provisions, when read in conjunction with

Tex. Occ. Code Secs. l64.052(a)(5) and164.053[,] afford the Board unfettered powers to subject

a licensee to penalties of discipline and disciplinary hearings without affording the licensee an

opportunity for prompt judicial review of the constitutionality of the subpoena.”                  See

Tex. Occ. Code §§ 164.052(a)(5) (“A physician . . . commits a prohibited practice if that person: . . .

commits unprofessional or dishonorable conduct that is likely to deceive or defraud the public, as

provided by Section 164.053, or injure the public.”), .053 (listing unprofessional or dishonorable

conduct that is likely to deceive or defraud public).




                                                  4
                Appellees answered and filed a plea to the jurisdiction. The parties thereafter filed

competing briefs on appellees’ plea to the jurisdiction and the merits. The trial court considered the

plea to the jurisdiction and the merits of Allibone’s claims at a hearing in April 2017.4 The primary

dispute between the parties concerned the proper scope of the investigation. The Board’s position

was that the scope of the investigation was driven by the written complaints that it had received;

Allibone countered that the investigation was limited to the specific allegations raised in the Board’s

letter notifying him of the complaints.

                The trial court received documentary evidence, including the confidential written

complaints. The Board submitted the confidential written complaints and Allibone submitted the

patients’ records to the trial court for in camera review.5 The trial court also received other

documentary evidence, testimony by deposition from the Board’s medical director, and testimony



       4
         At the same time, the trial court also heard appellees’ plea to the jurisdiction and the merits
of Allibone’s claims in the separate but related case, this Court’s cause number 03-07-00360-CV.
During the hearing, appellees’ counsel conceded the trial court’s jurisdiction in both cases to
determine whether the subpoenas were reasonable in scope. The trial court summarized appellees’
position on their pleas as follows:

        If I understand the Medical Board’s position, the Medical Board believes the plea
        should be granted as it relates to sovereign immunity related to the individuals in
        their official capacity, as it relates to any allegations of rule [challenges], and to deny
        the plea as to the review of the subpoena and whether they are reasonably related to
        the complaints, correct?

Appellees’ counsel responded: “That’s a fair statement, Your Honor, yes, sir.”
       5
            The sealed evidence is part of the record on appeal. According to the Board,
the complainant(s) have not waived confidentiality of the complaint or their identity. See
22 Tex. Admin. Code § 178.4(c) (Texas Medical Board, Complaint Initiation) (requiring “identity
of a complainant, as well as the complaint itself” to remain confidential unless complainant
specifically waives confidentiality or testifies in contested case hearing).

                                                    5
from the Board’s interim executive director. The director testified generally about the Board’s

enforcement process after it receives a written complaint through judicial review. He explained the

role that subpoenas play in this process and why the Board needs the patient’s “full” medical and

billing records. He also testified that the investigation of the complaints against Allibone was not

complete and that the Board was unable to proceed with the investigation because Allibone had not

complied with the subpoena.

               Following the hearing, the trial court found that the claims asserted by Allibone in

his petition lacked merit and denied his petition for protective order and declaratory judgment. In

its order and judgment, the trial court also found that the subpoena was “in all respects reasonable

in scope and valid” and ordered Allibone to “fully comply” with the subpoena by May 30, 2017.

Allibone requested findings of fact and conclusions of law, but the trial judge declined to make them,

explaining by letter to the parties that she had determined, in her discretion, that they were not

necessary or appropriate. This appeal followed.


                                               Analysis

Findings of Fact and Conclusions of Law

               In his first issue, Allibone argues that the trial court’s refusal to make findings of fact

and conclusions of law amounts to reversible error. See Tex. R. Civ. P. 296 (“In any case tried in

the district or county court without a jury, any party may request the court to state in writing its

findings of fact and conclusions of law.”). He requests that this Court reverse the trial court’s order

and judgment and remand the case to the trial court for issuance of findings of fact and conclusions

of law.

                                                   6
                Assuming without deciding that findings of facts and conclusions of law would have

been required here, Allibone did not file with the trial court or serve appellees with a “Notice of Past

Due Findings of Fact and Conclusions of Law.” See id. R. 297. Thus, he waived his right to

complain about the trial court’s failure to file findings of fact and conclusions of law. See Sonnier

v. Sonnier, 331 S.W.3d 211, 214 (Tex. App.—Beaumont 2011, no pet.) (“Normally, the failure to

file the required ‘past due’ notice is treated as a waiver of the right to complain of the trial court’s

failure to file findings.”); Burns v. Burns, 116 S.W.3d 916, 922 (Tex. App.—Dallas 2003, no pet.)

(concluding that appellant waived complaint on appeal of any error related to trial court’s failure

to make findings or conclusions because appellant did not file past due notice as required

by Texas Rule of Civil Procedure 297); see also Borjas v. Fannie Mae, No. 03-13-00323-CV,

2014 Tex. App. LEXIS 11510, at *10–11 (Tex. App.—Austin Oct. 17, 2014, no pet.) (mem. op.)

(concluding that appellant had not preserved issue of trial court’s failure to file findings and

conclusions because appellant did not comply with Texas Rules of Civil Procedure 296 and 297).

Further, even if Allibone had preserved his complaint, we would conclude that any error by the trial

court in failing to issue findings of fact and conclusions of law was harmless, as any such failure has

not prevented him from presenting his case to this Court. See Graham Cent. Station, Inc. v. Pena,

442 S.W.3d 261, 263 (Tex. 2014) (finding that “[a]ny error in [not making findings of fact or

conclusions of law] was harmless, as it did not prevent [appellant] from properly presenting its case

to the court of appeals or this Court” and implying finding to support judgment). We overrule

Allibone’s first issue.




                                                   7
Reasonableness and Relevance of Subpoena

               In his second issue, Allibone argues that the trial court’s conclusion that the subpoena

was reasonable and relevant to the issues being investigated amounted to an abuse of discretion. See

McLane Co. v. Equal Emp’t Opportunity Comm’n, 137 S. Ct. 1159, 1170 (2017) (concluding that

district court’s decision to enforce administrative subpoena was reviewed for abuse of discretion).

A trial court abuses its discretion if it acts arbitrarily or unreasonably or without reference to any

guiding rules and principles. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

               Allibone’s arguments that the trial court abused its discretion are based on the Fourth

Amendment protections “against unreasonable searches and seizures.” See U.S. Const. amend. IV.

Relevant to this appeal, Fourth Amendment protections when applicable generally require an agency

to “conduct its investigation pursuant to an authorized purpose, and the [administrative] subpoena

must be relevant to that purpose.” See Schade v. Texas Workers’ Comp. Comm’n, 150 S.W.3d 542,

550–51 (Tex. App.—Austin 2004, pet. denied) (citing Sinclair v. Savings & Loan Comm’r, 696

S.W.2d 142, 151–52 (Tex. App.—Dallas 1985, writ ref’d n.r.e.)); see also generally See v. Seattle,

387 U.S. 541 (1967); Oklahoma Press Publ’g Co. v. Walling, 327 U.S. 186 (1946); United States

v. Zadeh, 820 F.3d 746 (5th Cir. 2016). Allibone argues that the subpoena violated his Fourth

Amendment rights by seeking documents that were not relevant to the Board’s investigation because

the “entire care” of the patients and billing matters were “not the subject of the complaint

being investigated.”

               Allibone’s position focuses on the relevance of the “entire” records of his patients

A.L. and A.S. to the pending investigation against him based on the allegations as stated in the



                                                  8
Board’s letter notifying him of the complaints. Allibone, however, does not dispute the Board’s

authority to investigate complaints concerning physicians, to issue subpoenas as part of an

investigation, and to discipline physicians. See Tex. Occ. Code §§ 151.003(b) (stating that Board

is “primary means of licensing, regulating, and disciplining physicians”), 153.007(a) (authorizing

Board to issue subpoenas and subpoenas duces tecum), 164.001–.154 (addressing disciplinary

actions and procedures). He also cites no authority, and we have found none, to support his position

that an investigatory subpoena issued by the Board must be narrowly tailored in scope to the specific

allegations in the notice letter. See Tex. Occ. Code § 154.053 (requiring Board to notify physician

that complaint was filed and “nature of the complaint unless the notice would jeopardize an

investigation”). We further disagree with Allibone’s characterization of the notice letter, given the

specific references to the “care and treatment” of A.L. and A.S.

               Here, the trial court was able to review the written complaints against Allibone in

camera, and the Board presented evidence concerning its reasons generally for seeking a patient’s

complete records. For example, the interim executive director testified:


       [T]he Board needs the full medical records and billing records to put the complaint
       in context. And when I say, ‘to put it in context,’ is the purpose, obviously, is an
       investigative subpoena to determine whether or not there is actually a violation, and
       in order to do that, the full record needs to be given to provide the context.


He also explained that the investigation’s scope is based on the complaint, differentiating between

the complaint and the notice letter to the physician:


       The complaint is the defining document. The notice letter is to give notice and let
       the physician know that what the investigation is being opened on generally and then

                                                 9
       again, as I said, the Board has an investigative process and procedure where if it is
       standard of care, they will seek medical records, they will seek billing records related
       to that patient and to look at those to put in context whatever the violation is.


See Tex. Occ. Code §§ 154.053, .056 (requiring Board to investigate and resolve complaints).

               In his deposition, the Board’s medical director testified that, in reviewing records, it

“becomes quite obvious that the full and complete medical record is required for review. There’d

be no way to vindicate or dismiss an investigation or a complaint if [the Board was] not able to

review the underlying records to determine whether the standard of care was met or violated.” He

also testified that it was “quite obvious and apparent that the physician is exactly the wrong person

to determine which portions of the medical record are relevant and which portions should be

withheld from the investigation.” He explained, “[A] physician who has a vested interest in the

outcome should not be the gatekeeper of records that the Board can look at . . . in the course of its

investigation.” Concerning billing records, the medical director testified that the Board “can rely

quite heavily on billing records to determine the accuracy of the medical records that were submitted

to the Board to make sure that we’ve got a full and complete set of medical records.” Allibone

offered no substantive evidence rebutting the medical director’s testimony.

               Given the Board’s undisputed evidence, including the complaints and the subpoena

that was limited in scope to the records of A.L. and A.S., we conclude that the trial court did not

abuse its discretion when it found that the subpoena was “in all respects reasonable in scope and

valid.” See Schade, 150 S.W.3d at 550–51; see also Walling, 327 U.S. at 201 (“The very purpose

of the [administrative] subpoena and of the order, as of the authorized investigation, is to discover




                                                 10
and procure evidence, not to prove a pending charge or complaint, but upon which to make one if,

in the Administrator’s judgment, the facts thus discovered should justify doing so.”).6

                As part of his second issue, Allibone also complains that the trial court did not

address his “as-applied” constitutional challenge to section 160.009 of the Texas Occupations Code

or his “facial” constitutional challenge to related Board rules that subjected him to

discipline for failing to comply with the subpoena.            See Tex. Occ. Code § 160.009(b);

22 Tex. Admin. Code § 190.8(2)(B), (D). He argues that the trial court’s failure to address these

constitutional claims “without the articulation of any reasoning” amounted to an abuse of discretion

and reversible error, explaining that his constitutional claims were “particularly important in light

of the threats made by [appellees] to discipline [him] for seeking judicial review and for failure to

unconditionally obey the subpoenas.” He further argues that, “[a]s a matter of law statutory and

regulatory schemes which subject an individual to an administrative process aimed at punishing an

individual for failure to obey administrative subpoena while failing to provide for judicial review

[are] unconstitutional as a matter of law.”




        6
          In his reply brief, Allibone argues that appellees “for the first time ever” in their brief to
this Court represent that the letter notifying him of the complaint “[did] not really disclose the actual
nature of the complaint being investigated” and that the trial court’s consideration of the complaint
in “secretive proceedings” to the extent it varied in substance from the notification letter amounted
to reversible error. Allibone misconstrues appellees’ position. Consistent with their arguments
before this Court, appellees’ arguments to the trial court included that the Board’s investigation was
driven by the scope of the complaint, that it was not required to provide a detailed list of the
allegations but the general “nature of the complaint,” and that the notice to Allibone complied with
this requirement. See Tex. Occ. Code § 154.053 (requiring Board to notify physician of “nature of
the complaint”). Allibone also did not object to the submission of the complaint along with the
medical records to the trial court for in camera review. See Tex. R. App. P. 33.1(a).

                                                   11
                As an initial observation, Allibone cannot bring his claims brought under the UDJA

to the extent that they challenged the constitutionality of Board rules. See Machete’s Chop Shop,

Inc. v. Texas Film Comm’n, 483 S.W.3d 272, 285–86 (Tex. App.—Austin 2016, no pet.) (observing

prior holding that claim under UDJA challenging administrative rule “‘falls outside the UDJA

altogether’” (quoting Texas State Bd. of Veterinary Med. Exam’rs v. Giggleman, 408 S.W.3d 696,

708 (Tex. App.—Austin 2013, no pet.)); see also Tex. Civ. Prac. & Rem. Code § 37.004 (“A person

. . . whose rights, status, or other legal relations are affected by a statute [or] municipal ordinance . . .

may have determined any question of construction or validity arising under . . . the statute [or]

ordinance . . . and obtain a declaration of rights, status, or other legal relations thereunder.”).

                As to his “as-applied” challenge to the constitutionality of section 160.009, the trial

court in its order and judgment found that the relief that Allibone requested in his petition lacked

merit and should be denied and then denied “all relief not specifically addressed herein.” Thus, the

trial court addressed this constitutional challenge to the statute, concluding the challenge to be

without merit. And we must uphold this conclusion “if it can be upheld on any legal theory that

finds support in the evidence.” See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); see also

BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).

                “[A]n as-applied challenge asserts that a statute, while generally constitutional,

operates unconstitutionally as to the claimant because of her particular circumstances.” Tenet Hosps.

Ltd. v. Rivera, 445 S.W.3d 698, 702 (Tex. 2014) (citing City of Corpus Christi v. Public Util.

Comm’n of Tex., 51 S.W.3d 231, 240 (Tex. 2001); Texas Workers’ Comp. Comm’n v. Garcia,

893 S.W.2d 504, 518 n.16 (Tex. 1995)). Whether a statute is unconstitutional is a question of law,



                                                     12
which we review de novo. See Patel v. Texas Dep’t of Licensing & Regulation, 469 S.W.3d 69, 87

(Tex. 2015). Statutes are presumed to be constitutional, and a party challenging the constitutionality

of a statute has a “high burden.” Id.; see Tex. Gov’t Code § 311.021(1) (“In enacting a statute, it is

presumed that . . . compliance with the constitutions of this state and the United States is intended.”).

The determination of a statute’s constitutionality in most instances requires us “to consider the entire

record, including evidence offered by the parties.” Patel, 469 S.W.3d at 87 (citing Garcia,

893 S.W.2d at 520). We turn then to consider Allibone’s challenge to section 160.009 in the context

of the entire record.

                The Board presented evidence concerning the Board’s process when a physician

refuses to comply with a subpoena. The interim executive director testified that “there are no

automatic sanctions with the Medical Board” but that the failure to comply with a subpoena “is

grounds for a possible disciplinary action,” and explained the process in that situation:


        [I]f there is noncompliance or failure to comply with a subpoena, a new investigation
        is started, notice will be given, there will be an opportunity to respond then the case
        will move forward even all the way up through the ISC [informal settlement
        conference] process, so there is no automatic sanction. All the notice provisions
        would apply, the ISC provisions would apply, that type of thing.


See Texas Med. Bd. v. Wiseman, No. 03-13-00210-CV, 2015 WL 410330, at *2–3 (Tex.

App.—Austin Jan. 30, 2015, no pet.) (mem. op.) (describing administrative disciplinary procedures

before Board). The record also showed that the Board has followed its process concerning

Allibone’s particular circumstances, advising him of the possibility of disciplinary action for failure

to comply with the subpoena.



                                                   13
               Given this undisputed evidence in the context of the relevant statutory and regulatory

framework, we conclude that Allibone failed to meet the “high burden” to overcome the statute’s

constitutionality to show that section 160.009 operated unconstitutionally because of his particular

circumstances. See Patel, 469 S.W.3d at 87; Rivera, 445 S.W.3d at 702. Thus, the trial court did

not err by concluding that Allibone’s “as-applied” challenge to the constitutionality of section

160.009 was without merit. See Worford, 801 S.W.2d at 109; see also Sonnier, 331 S.W.3d at 214

(explaining that generally appellate court implies necessary findings when complaint was not

preserved that trial court failed to file findings of fact and conclusions of law). We overrule

Allibone’s second issue.



                                           Conclusion

               Having overruled Allibone’s issues, we affirm the trial court’s order and judgment

denying Allibone’s petition for protective order and declaratory judgment.



                                              __________________________________________
                                              Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Pemberton and Goodwin

Affirmed

Filed: November 21, 2017




                                                14
