TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00502-CV
Roderick Lee Mitchell, M.D., Appellant
v.
Texas Medical Board, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-13-000240, HONORABLE TIM SULAK, JUDGE PRESIDING
MEMORANDUM OPINION
The Texas Medical Board (the Board) revoked Dr. Roderick Lee Mitchell’s license
to practice medicine. Mitchell filed a suit for judicial review of the agency order. See Tex. Gov’t
Code § 2001.176. The district court affirmed the agency order. Mitchell’s two appellate issues
reduce to the contention that the agency order is void because the administrative law judge
(ALJ) failed to send a copy of his proposal for decision (PFD) to either Mitchell or his counsel. See
1 Tex. Admin. Code § 155.507(b) (2014) (State Office of Admin. Hearings, Proposal for Decision).
We will affirm.
BACKGROUND
Mitchell held a license to practice medicine issued by the Board in 1981. In
September 2011, the Board filed a complaint against Mitchell based on allegations that he violated
the Texas Occupations Code and certain administrative rules. See Tex. Occ. Code § 164.052
(identifying prohibited practices by physicians); 22 Tex. Admin. Code § 190.8 (2014) (Tex. Med.
Bd., Violation Guidelines) (identifying practices and conduct considered to be violations of
Medical Practice Act). The State Office of Administrative Hearings (SOAH) held a contested-case
hearing before an ALJ. Mitchell attended the hearing with his attorney, Craig Washington, but
submitted no exhibits and called no witnesses. The ALJ prepared a PFD, which included numerous
proposed findings of fact and conclusions of law detailing the various violations the ALJ determined
that Mitchell committed. The record includes correspondence dated October 1, 2012, from the ALJ
to the Board’s Executive Director enclosing a copy of the PFD. The letter indicates that a copy of
that correspondence and enclosed PFD was sent to Mitchell’s attorney by regular mail addressed to
his office in Houston.
On November 7, the Board’s hearings coordinator sent a letter to the ALJ informing
him that the PFD would be presented to the Board for consideration and approval at a meeting to be
held on November 30. The letter indicates that a copy of this letter was sent to Craig Washington,
again at his Houston office. On November 8, a staff attorney for the Board sent a letter to Washington
informing him that the Board would consider the PFD at its November 30 meeting and informing
him of the opportunity to make a brief oral presentation. The record contains a delivery confirmation
tracking number from Lone Star Overnight indicating that this correspondence was delivered to
Washington’s Houston office on November 9, 2012.
The Board signed and entered its final order on November 30. The final order states
that the ALJ presided over the contested case and prepared a PFD containing findings of fact and
conclusions of law on October 1. The final order recites that “the PFD was properly served on all
parties, and all parties were given an opportunity to file exceptions and replies as part of the record
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herein. No Exceptions were filed by either party.” The Board adopted the findings of fact and
conclusions of law included in the PFD and ordered Mitchell’s medical license revoked as of the
date of the final order. On December 29, Mitchell filed a notice of appearance designating Joseph
R. Willie, II, as his new attorney-in-charge. The notice stated that Washington would remain “of
counsel” on the matter and requesting that all further communications regarding the proceeding be
forwarded to Willie. That day Willie also filed a motion for rehearing of the final order. The motion
for rehearing stated: “It is the Respondent [sic] contention that Attorney Washington was never
served with the Proposal for Decision nor was the Respondent served with the Proposal for
Decision.” See 1 Tex. Admin. Code § 155.507(b) (requiring that ALJ furnish copy of PFD to each
party). In the motion Mitchell contends that, as a result of the ALJ’s failure to serve him with a
copy of the PFD, he was denied his right to file exceptions to it, which he argues constitutes a
violation of his equal protection and due process rights guaranteed by the United States and Texas
Constitutions. Mitchell maintains that, as a consequence, any final order predicated on the PFD is
void as a matter of law.
The Board denied Mitchell’s motion for rehearing in January 2013. Mitchell then
filed suit for judicial review. As he had argued in his motion for rehearing, Mitchell’s original petition
stated: “It is the Respondent [sic] contention that Attorney Washington was never served with the
Proposal for Decision nor was the Respondent served with the Proposal for Decision.” Mitchell
asserted that the Board’s final order revoking his medical license was void for the reason that neither
he nor his attorney was served with the PFD, depriving him of his right to file exceptions thereto in
violation of his constitutional rights to equal protection and due process.
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While the suit for judicial review was pending in Travis County district court,
the Board was notified that Mitchell was continuing to practice medicine. Specifically, the Board
received information from the Texas Department of Public Safety that Mitchell was continuing
to write prescriptions following revocation of his license. As a consequence, the Board filed an
application for a temporary restraining order and temporary injunction to prohibit Mitchell from
continuing to practice medicine without a license. In its verified application, the Board stated that
Willie (Mitchell’s counsel) had incorrectly informed a health-care facility that Mitchell was still able
to practice medicine while his suit for judicial review was pending. The Board correctly argued that
a Board order is not stayed during pendency of an appeal unless otherwise ordered by a court. See
Tex. Occ. Code § 164.011(b) (person may not practice medicine or deliver health-care services in
violation of disciplinary order or action of board while an appeal is pending unless order or action
is stayed by appropriate court).
Mitchell then filed a response and cross-application for temporary injunction again
arguing that the Board’s revocation order was void because the PFD was not served on Mitchell’s
counsel or Mitchell as required by the Board’s rules and he was therefore unable to file exceptions
to the PFD. Mitchell sought to enjoin the Board from enforcing the revocation order and asked that
the case be remanded to the Board to afford Mitchell the opportunity to “rebut the Proposal for
Decision rendered by the Administrative Law Judge.” The district court granted the Board’s request
for a temporary restraining order, enjoined Mitchell from practicing medicine until further order of
the court, and set a hearing on the Board’s request for a temporary injunction. Thereafter, the district
court held a hearing and granted the Board’s request for a temporary injunction prohibiting Mitchell
from practicing medicine until further order of the court and denied Mitchell’s cross-application.
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In July 2013, the district court held a trial on the merits of Mitchell’s suit for
judicial review. At trial, Willie again asserted that the Board’s revocation order was void because
the ALJ did not send a copy of the PFD to Washington, Mitchell’s counsel, or to Mitchell. The
district court rendered judgment affirming the Board’s order revoking Mitchell’s license to practice
medicine. Mitchell then perfected this appeal, contending that the ALJ’s alleged failure to serve
the PFD on either Mitchell or his counsel, which he contends deprived him of a right to file
exceptions to the PFD, violated his constitutional rights and “vitiates, as a matter of law, the entire
administrative process.”
DISCUSSION
SOAH’s administrative rules provide that an ALJ “shall submit the proposal for
decision to the referring agency and furnish a copy to each party.” 1 Tex. Admin. Code § 155.507(b).
The parties may then submit to the ALJ and the referring agency exceptions to the PFD. Id.
§ 155.507(c). Exceptions must be filed within 15 days after the date of service of the PFD. Id.
§ 155.507(c)(1). If service is by regular mail, the date of service is presumed to be no later than three
days after mailing. Id. § 155.507(c)(2). Upon proper request and for good cause or by agreement
of the parties, the ALJ may extend the time to file exceptions to the PFD. Id. § 155.507(3), (4). The
linchpin of Mitchell’s argument in the district court and in this Court is his assertion that the ALJ
did not comply with his obligation to serve him with a copy of the PFD.
The ALJ’s October 1, 2012 letter to the Board’s Executive Director enclosing a
copy of the PFD indicated that a copy of that correspondence was sent to Mitchell’s attorney,
Craig Washington, by regular mail to his law office in Houston. Moreover, the Board’s order recites
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that the PFD was properly served on all parties and all parties were given an opportunity to file
exceptions. A recitation in a judgment or order that proper notice was given provides prima facie
evidence of such notice that the reviewing court must accept as true absent evidence to the contrary.
See, e.g., Roberts v. Mullen, 417 S.W.2d 74, 78 (Tex. Civ. App.—Dallas 1967), aff’d, 423 S.W.2d 576
(Tex. 1968); see also MJR Fin., Inc. v. Marshall, 840 S.W.2d 5, 9 (Tex. App.—Dallas 1992, no writ)
(there exists presumption that recitals contained in judgment are true).1 Mitchell argues that he has
rebutted this presumption by introducing “evidence of non-service.” Having reviewed both the
administrative record and the record from the suit for judicial review, we disagree that Mitchell has
rebutted the presumption that the ALJ properly served the PFD on Mitchell.
In his briefing to this Court, Mitchell asserts, without citation to the record, that he
“presented verified proof that the documents were not received.” We presume Mitchell is referring
to an affidavit he attached to his application for a temporary injunction. In that affidavit, Mitchell
averred that he read the application for temporary injunction and “the allegations contained therein
are within [his] personal knowledge and are true and correct.” The only allegation related to service
of the PFD is the following: “It is the Respondent [sic] contention that Attorney Washington was
never served with the Proposal for Decision nor was the Respondent served with the Proposal for
Decision.” Mitchell’s affidavit swearing that it is his “contention” that the ALJ failed to comply
with rule 155.507(b) does not, however, constitute evidence rebutting the presumption that the
agency’s recital in its order that the ALJ properly served the parties with the PFD is true. Also
1
Although these cases involve orders and judgments issued by trial courts, we see no reason
the presumption of truth should not apply equally to recitals contained in a final agency order.
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notably absent from the record is any statement, sworn or unsworn, by Washington affirming that
he did not receive a copy of the ALJ’s October 1, 2012 correspondence to the Board’s Executive
Director enclosing a copy of the PFD. The record does, however, contain unrebutted evidence that
Washington received a copy of the PFD from the Board’s staff attorney on November 9, 2012 yet
never made any request for an extension of time to file exceptions to that PFD on the ground that he
had not previously been served with a copy. There is no conflict between the Board’s final order
reciting that the ALJ properly served the PFD on the parties and the evidence contained in the
record. We overrule Mitchell’s first issue in which he contends that the ALJ failed to properly serve
him or his counsel with the PFD.
Because of our disposition of Mitchell’s first issue we need not, and do not, address
his assertion, unsupported by any authority, that the failure of an ALJ to comply with administrative
rule 155.507(b) violates constitutional rights and thereby voids any agency order predicated on
that PFD. We do observe, however, that Mitchell attended the contested-case hearing, though he
declined to present evidence. He also filed a motion for rehearing and a suit for judicial review. We
also note that Mitchell’s counsel never requested an extension of time to file exceptions to the PFD
once he undisputedly was aware of its existence before the November 30, 2012 hearing when it was
presented to the Board.
CONCLUSION
For the reasons stated above, we affirm the district court’s judgment affirming the
Board’s final order revoking Mitchell’s license to practice medicine.
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__________________________________________
David Puryear, Justice
Before Justices Puryear, Goodwin, and Field
Affirmed
Filed: February 4, 2015
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Roderick Lee Mitchell, M.D. v. Texas Medical Board
Combined Opinion