Jose A. Perez v. Texas Medical Board and Mari Robinson, JD, in Her Official Capacity

ACCEPTED
03-14-00644-CV
8263248
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/16/2015 12:40:57 PM
JEFFREY D. KYLE
CLERK

No. 03-14-00644-CV
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
12/16/2015 12:40:57 PM
JEFFREY D. KYLE
IN THE THIRD COURT OF APPEALS Clerk
AUSTIN, TEXAS

JOSE A. PEREZ

Appellant

Vs.

TEXAS MEDICAL BOARD and MARI ROBINSON JD, in her Official Capacity

Appellee s.

Appeal from the 53' Judicial District Court
Travis County, Texas

Appellant's Motion For Rehearing

Jose A. Perez
34 Candle Pine Place
The Woodlands, TX 77381
theaescula ius mail. com
281-673-0452
 TABLE OF CONTENTS

I ntr oducti on.

Ar gument.

Issues

The Court's finding that statutes adopted after Mr. Perez became a physician
assistant in 1994 apply to him is in error;

The Court's finding that Mr. Perez' right to work as a physician assistant can be
revoked by an administrative agency is in error;

The Court's finding that the Texas Legislature has conferred exclusive jurisdiction
on the PAB is in error;

The Court's finding that the relationship between the narcotic drug seeking
complainant and Mr. Perez was that of a patient-physician assistant relationship is
in error.

Table of Authorities.

Conclusion. 15

TABLE OF AUTHORITIES

Cases

A. R. Logan v. The State,
5 Texas Court Of Appeals 306 (Tyler-1878)

Brazos River Authority v. City of Graham,
335 SW 2d 247, 251 (Tex. Civ. App. — Fort Worth 1960),
aff'd. , 354 SW 2d 99 (1961). . 14

Bruce v. Jim Walters Homes, Inc. ,
943 S.W. 2d 121, 122— 23 (Tex.App. San Antonio 1997, writ denied) . . .. . . 12
Cash Am. Int'1, Inc. v. Bennett,
35 S.W. 3d 12, 15 (Tex. 2000). 12

Childs v. Weis,
440 S.W.2d 104, 107 (Tex. Civ. App. —Dallas 1969, no writ). . 10

Cleveland Boardof Education v. Loudermill. ,
470 US 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985). . 15

DeCordova v. City of Galveston,
4 Tex. 470, 475 (Tex. 1849).

Dent vs West Virginia. ,
9 S. Ct. 231, 129 US 114 (U. S. 01/14/1889).

Engquist v. Oregon Dep't of Agriculture,
553 U. S. 591 (U. S. 06/09/2008) 9, 10

Ex parte Abell,
613 S.W.2d 255, 260 (Tex. 1981).

Francisco v. Board of Dental Examiners,
149 S.W.2d 619 (Tex.App. 03/05/1941). .8, 9

Holland St. John, M. D v. Marty Howard Pope and Sally Bates Pope,
901 S.W.2d 420 (Tex. 06/08/1995) . . 10

In re Entergy Corp. ,
142 S.W. 3d 316, 321 (Tex. 2004).

Lucas v. South Carolina Coastal Council,
505 US 1003, 1019 (1992) . 13

McCain v. Yost
284 S.W.2d 898, 900 (Tex. 1955).

Mellinger v. City of Houston,
3 S.W. 249, 253 (Tex. 1887).
Middletown v. Texas Power k Light Co. ,
185 S.W. 556, 560 (Tex. 1916).

Paul v. Davis,
424 US 693, 710-11 (1976).

Robinson v. Crowncork k Seal Co. , Inc. ,
No. 06-0714 (Tex. 10/22/2010). 7, 8

Salas v. Gamboa,
760 S.W. 2d 838, 840 (Tex.App. —San Antonio 1988, no writ) 10

Scott v. Texas State Board of Medical Examiners,
384 SW 2d 686 (Tx —1964). .8, 9

Sherman v. State Bd. of Dental Exam'rs,
116 SW 2d 843 (Tex. Civ. App. —San Antonio 1938, writ ref d).

State v. Hale,
136 Tex. 29, 146 SW 2d 731 (1941). 13

Subaru of Am. , Inc. v. David McDavid Nissan, Inc. ,
84 S.W. 3d 212, 220 (Tex.2002) 11, 12

Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection,
No. 08-1151 (U. S. 06/17/2010). 13

Swilley v. McCain,
374 SW 2d 871, 875 (Tex. 1964).

Texas Board of Chiropractic Examiners, et al, v. Texas Medical Association, et al,
No. 03-10-00673-CV (Tex.App. Dist. 3 04/05/2012). 13

Texas Vending Comm. v. Headquarters Corp. ,
505 SW 2d 402 (Tex. Civ. App. —Austin — 1974, writ ref'd n. r. e.) . .

The State v James A. Goldman,
44 Tex. 104 (1875).
Village of Willowbrook v. Olech,
528 US 562 (2000).

Wailer v. State,
68 S.W.2d 601 (Tex. Civ. App. —Amarillo 1934, writ ref d).

US Constitution

Fourteenth Amendment.

Texas Constitution

Tex. Const. art. I, ) 16. 7
Tex. Const. Art. 1 ) 17 13, 14
Tex. Const. Article 1, ) 19. 9
Tex Const. Article XVI, ) 31. 9

Statutes

Texas Estate Codes ) 32.005. 11
Texas Family Code ) 155.001 12
Texas Health Code ) 464. 001 . 13
Texas Occupations Code ) 204. 101(2) -(4). 7
Texas Occupation Code ) 204.302(4).

Miscellaneous

Gammel, The Laws Of Texas 1822-1897, pp 1381-1383. 9
61 Am. Jur. 2d Physicians and Surgeons ) 14, 158. . 10

INTRODUCTION

By this Motion For Rehearing Mr. Perez asks the Appellate Court to

respectfully revisit its December 10'" . 2015 in order to prevent a gargantuan

miscarriage of justice. Mr. Perez has been arbitrarily deprived of his right to earn a
living. He is being subjected to expost facto laws and denied his right to equal

treatment under the law.

ISSUES

The Court's finding that statutes adopted after Mr. Perez became a physician
assistant in 1994 apply to him is in error;

The Court's finding Mr. Perez' right to work as a physician assistant can be
revoked by an administrative agency is in error;

The Court's finding that the Texas Legislature has conferred exclusive jurisdiction
on the PAB is in error;

The Court's finding that the relationship between the narcotic drug seeking
complainant and Mr. Perez was that of a patient-physician assistant relationship is
in error.

THE TEXAS OCCUPATION CODE CH 204,
INTER ALIA TAKES AWAY OR IMPAIRS VESTED RIGHTS

In the December 10'", 2015 Order the Third District Court of Appeals ruled that

the Physician Assistant Board (PAB) has exclusive jurisdiction over Physician

Assistants pursuant to Texas Occupations Code Ch 204. 101(2) -(4). The historical

revision notes state: Acts 1999, 76th Leg. , ch. 388, Sec. 1, eff. Sept. 1, 1999.

Consequently, the statute is proscribed by Tex. Const. art. I, ) 16 as applied to

Mr. Perez.
 The referenced Order also states that the PAB alleges that Mr. Perez violated

Sec 204.302(4)' . The historical revision notes state: Acts 1999, 76th Leg. , ch.

388, Sec. 1, eff. Sept. 1, 1999. Consequently, the statute is proscribed by Tex.

Const. art. I, ) 16 as applied to Mr. Perez

The Order states that Mr. Perez must sue the Physician Assistant Board (PAB).

But the law in effect in 1994 —the PA Licensin Act of 1993, HB 2498, 73rd

Regular Session, Chapter 214, Section 2 (2) created the Physician Assistant

Council not the Physician Assistant Board. Consequently, the statute is proscribed

by Tex. Const. art. I, ) 16 as applied to Mr. Perez

The Texas Supreme Court has declared that: the Texas Constitution states that

gill f tied, ~tf l, t I ti l, yl i yiigtb
obligation of contracts, shall be made . A retroactive law literally means a law that

acts on things which are past'. A retroactive statute violates Texas Constitution if,

when applied, it takes away or impairs vested rights acquired under existing law'.

A vested right is a property right, which the Constitution protects like any other

property'.

'
[The Physician Assistant] acts in an unprofessional or dishonorable manner that is likely to
deceive, def'raud, or injure the public;
Robinson v. Crowncork & Seal Co. , Inc. , No. 06-0714 (Tex. 10/22/2010) citing Tex. Const.
art. I, $ 16
Id citing DeCordova v. City of Galveston, 4 Tex. 470, 475 (Tex. 1849).
Robinson v. Crowncork & Seal Co. , Inc. , No. 06-0714 (Tex. 10/22/2010) Id citing Ex parte
Abell, 613 S.W. 2d 255, 260 (Tex. 1981); McCain v. Yost, 284 S.W. 2d 898, 900 (Tex. 1955).
' Id citing Middletown v. Texas Power & Light Co. , 185 S.W. 556, 560 (Tex. 1916).
 A right has been well defined to be a well founded claim and a well founded

claim means nothing more nor less than a claim recognized or secured by law' A

right, in a legal sense, exists when in consequence of given facts the law declares

that one person is entitled to enforce against another a claim, or to resist the

enforcement of a claim urged by another'.

Mr Percz acquired the right to work as a physician assistant in Texas on

September 22", 1994'. The right to work in a lawful profession is protected by

the Fourteenth Amendment and Texas Constitution Article 1, Section 19 '. In

Texas the right to work as a health practitioner is regulated exclusively by Texas

Constitution Article XVI, Section 31".
The Texas Supreme Court has ruled that Texas Constitution Article XVI,

Section 31 authorizes the Texas Medical Board to i~nitiall determine whether a

Mellinger v. City of Houston, 3 S.W. 249, 253 (Tex. 1887);
Id
Record on Appeal pp 3-4
Francisco v. Board of Dental Examiners, 149 S.W. 2d 619 (Tex.App. 03/05/1941); Dent vs
West Virginia. , 9 S. Ct. 231, 129 US 114 (U. S. 01/14/1889)
' A. R.
Logan v. The State, 5 Texas Court Of Appeals 306 (Tyler-1878); The State v James A.
Goldman, 44 Tex. 104 (1875)

The Texas Supreme Court ruled therein:

"When a party has received the degreeof" Doctor of Medicine" from an established and well-
accredited college, no matter where he go throughout the state or whatever may have been its
date, he is not required to produce any other evidence of his qualification. So when he has been
examined by an authorized Board of Medical examiners and has received a certificate of
qualification'~, he is not required to undergo a subsequent examination, nor furnish at any
time any other additional prove of his qualifications.
"
putative medical practitioner is qualified to practice medicine". Once the right to

practice medicine is lawfully acquired, as here, it is a right or protected by the due

process clauses of the state and federal constitutions" and can onl be revoked for

cause b the 'udicial branch before a 'u ".That was the manner in which it was

done at common law". Consequently the referenced Order transgresses upon,

inter alia, Mr. Perez' due process of law right and his right to trial by jury.

Mr. Perez has a right to equal treatment under the law". He also has a right to

binding precedent". As shown hereinabove Mr. , Perez became a physician

" Scott v. Texas State Board of Medical Examiners, 384 SW 2d 686 (Tx — 1964) (It is seen from
the legislative history of the Medical Practice Act that f'rom the beginning the revocation of a
medical license has been committed to the district courts as a judicial function. It has been
..
traditionally so. There is a difference, legislatively recognized through the years, between an
exercise of the power to examine and issue a medical license, and an exercise of the power to
revoke a medical license for cause. ); see also Francisco v. Board of Dental Examiners, 149
S.W. 2d 619 (Tex.App. 03/05/1941)
'
Id, citing Vernon's Ann. St.Const. art. 1, $ 19; U. S.C.A. Const. amend. 14. Sherman v. State
Board of Dental Examiners, Tex. Civ. App. , 116 S.W. 2d 843, error refused. " Wailer v. State, 68
S.W. 2d 601, 605 (Tex. Civ. App. —Amarillo 1934, writ ref d)) Liberty or property interests
protected under the Due Process Clause "attain this constitutional status by virtue of the fact that
"
they have been initially recognized and protected by state law. . . . Paul v. Davis, 424 US 693,
710-11 (1976).
Texas Vending Comm. v. Headquarters Corp. , 505 SW 2d 402 (Tex. Civ. App. —Austin—
1974, writ refd n. r. e.) quoting Scott v. Texas State Board of Medical Examiners, supra.
'
Id; see also Gammel, The Laws Of Texas 1822-1897, pp 1381-1383, 1421. An Act to create a
Board of Medical Censors, signed by the Honorable Sam Houston on December 14'", 1837,
Amended December 16'", 1837. Section 3 therein grants the Board of Medical Censors the
authority to grant medical licenses to qualified applicants. It does not state therein that the Board
had the authority to impose administrative fines nor to revoke licenses.
'
Engquist v. Oregon Dep't of Agriculture, 128 S.Ct. 2146, 553 U. S. 591, 170 L.Ed. 2d 975 (U. S.
06/09/2008) citing Village of Willowbrook v. Olech, 528 US 562 (2000)
Swilley v. McCain, 374 SW 2d 871, 875 (Tex. 1964). (After a principle, rule or proposition of
law has been squarely decided by the Supreme Court, or the highest court of the State having
jurisdiction of the particular case, the decision is accepted as a binding precedent by the same
court or other courts of lower rank when the very point is again presented in a subsequent suit
between different parties. )
assistant in 1994. At the time his profession was regulated by Texas Constitution

Article XVI, Section 31 and the 1993 PA Licensing Act

THERE WAS NO
PATIENT-PHYSICIAN ASSISTANT RELATIONSHIP BETWEEN
THE NARCOTIC DRUG SEEKING COMPLAINANT AND MR. PEREZ

In the referenced Order the Court Of Appeals states that the PAB was alleging

that Mr. Perez made "rude" or dismissive remarks to a "patient". The

Appellees/Defendants have not, and cannot allege that there was a patient-

physician assistant relationship between the narcotic drug seeking complainant and

Mr. Perez'7.

The Texas Supreme Court has ruled that a physician is under no legal obligation

to practice his profession or render services to whomsoever may request them".

They have also ruled that a physician is not to be penalized for arbitrarily refusing

to respond to a call of a person even urgently in need of medical or surgical

assistance provided that the relation of physician and patient does not exist at the

time the call is made or at the time the person presents himself for treatment". The

' Amended Petition to
quash an administrative Order pp 4-6
Holland St. John, M. D v. Marty Howard Pope and Sally Bates Pope, 901 S.W. 2d 420 (Tex.
06/08/1995) (As is true of all callings, physicians are not obligated to practice their profession
or render services to everyone who asks. It is only with a physician's consent, whether express or
implied, that the doctor-patient relationship comes into being. ); Salas v. Gamboa, 760 S.W. 2d
838, 840 (Tex.App. — San Antonio 1988, no writ) quoting Childs v. Weis, 440 S.W. 2d 104, 107
(Tex. Civ. App. — Dallas 1969, no writ).
. Id. See 61 Am. Jur. 2d Physicians and Surgeons $ 14, 158.
mere fact that a doctor is "on call" does not in itself impose any duty". The

Appellees/Defendants have not, and cannot, claim that legal principles identified

hereinabove do not apply to Mr. Perez.

THE TEXAS LEGISLATURE HAS NEVER CONFERRED
EXCLUSIVE JURISDICTION TO THE PHYSICIAN ASSISTANT BOARD

The Court of Appeals states in the referenced Order that the Legislature

conferred exclusive administrative jurisdiction to PAB".

An agency has exclusive jurisdiction when the Legislature, not the courts, has

granted that agency in clear and precise terms the sole authority to make an initial

determination in a dispute". No presumption exists that an administrative agency

has jurisdiction to resolve a dispute". Whether an agency has exclusive or primary

jurisdiction depends upon statutory interpretation, which is a question of law".

Whether or not the PAB has exclusive jurisdiction over physician assistants is an

issue of first impression. Examples of instances where the Legislature has granted

exclusive jurisdiction include:

Texas Estate Codes

St. John, 901 S.W. 2d at 424.
' Order
p3 and FN 8.
In re Entergy Corp. , 142 S.W. 3d 316, 321 (Tex. 2004)
Subaru ofAm. , Inc. v. David McDavid Nissan, Inc. , 84 S.W. 3d 212, 220 (Tex.
2002).
McDavid Nissan, 84 S.W. 3d at 221 —22.
: Sec. 32.005. EXCLUSIVE JURISDICTION OF PROBATE PROCEEDING
IN COUNTY WITH STATUTORY PROBATE COURT. (a) In a county in
which there is a statutory probate court, the statutory probate court has exclusive
j ichti f lip btp dig, g dl f hll t ld
uncontested.

Texas Family Code:

Sec. 155.001. ACQUIRING CONTINUING, EXCLUSIVE JURISDICTION.
(a) Except as otherwise provided by this section, a court acquires continuing,
exclusive 'urisdiction over the matters rovided for b this title in connection with
a child on the rendition of a final order.

Mr. Perez challenges the Appellees/Defendants to show where such specific

language appears in the Occupation Code.

Without a clear or plain legislative statement of exclusivity, Texas courts can

not hold that a statute creating an administrative right and remedy has abrogated a

common-law right in favor of an exclusive administrative remedy". So absent a

clear or plain statement, Texas courts will decide that the agency and the courts

have concurrent jurisdiction over the matter". The Appellate Court failed or

refused to do so, Mr. Perez right to equal treatment under the law notwithstanding.

The facts show that it was Mr. Perez' professional conclusion that Ms XYZ had

a drug addiction. The facts show that Ms XYZ was using headaches and other

ailments as a subterfuge to obtain controlled medication. . The facts also show that

' Cash Am. Int'1, Inc. v. Bennett, 35 S.W. 3d 12, 15 (Tex. 2000) Bruce v. Jim Walters Homes,
Inc. , 943 S.W. 2d 121, 122— 23 (Tex.App. San Antonio 1997, writ denied) statute may be
interpreted as abrogating common-law principle only when its express terms or necessary
implications clearly indicate legislature's intent to do so).
McDavid Nissan, 84 S.W. 3d at 220
the patient and her husband refused to allow Mr. Perez to examine her. Mr. Perez

does not have permission from the Federal Drug Enforcement Agency nor the

Texas Department of Health to treat drug addiction".

MR. PEREZ RIGHT TO THE RESPONDEAT SUPERIOR DEFENSE

The Physician Assistant Act of 1993 made the supervising physician legally

liable for the acts of the physician Assistant". Consequently, Mr Perez objects to

the PAB persecuting Mr. Perez instead.

IV

MR. PEREZ' RIGHT TO BE
COMPENSATED FOR THE TAKING OF HIS PROPERTY

Mr. Perez has a right to be compensated when his property is taken for public

use. The Texas Constitution and US Supreme Court opinions" hold that

Defendants are not entitled to claim immunity from Mr. Perez' suit. First, under

State v. Hale, 136 Tex. 29, 146 SW 2d 731, 736. The Supreme Court of Texas

speaking through Judge Sharp said:

"The language used in Section 17 ofArticle 1 of the Constitution, supra,
which says that no person's property shall be taken or damaged for public

Texas Board of Chiropractic Examiners, Glenn Parker, Executive Director, and v. Texas
Medical Association, Texas Medical Board, and the State of Texas, No. 03-10-00673-CV
(Tex.App. Dist. 3 04/05/2012), see also Texas Health Code Sec. 464. 001
—the PA Licensing Act of 1993, HB 2498, 73rd Regular Session, Chapter 214, Section 17.
Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-
1151 (U. S. 06/17/2010) citing Lucas v. South Carolina Coastal Council, 505 US 1003, 1019
(1992)
 use without adequate compensation being made, has no exce tions or
limitations attached thereto. It is a clear, definite statement of the rule
which prevails in this State, which controls all the departments of the State
government; and the liability for adequate compensation
for private property taken or damaged for public use
is not based upon the ground that the act of taking or damaging
such property was done negligently or intentionally. * * *(emph added)

Article 1, Section 17, of the Texas Constitution, Vernon's Ann. St.

provides that "No person's property shall be taken, damaged or destroyed for

or applied to public use without adequate compensation being made, unless

"
by the consent of such person; * * *. Since there are no exceptions or

limitations attached to the constitutional provision, the State itself is not

exempt from its requirements". Agencies created by the State are not

exempt". The Third District Panel did not explain the reason Mr, Perez was

not entitled to compensation.

The Appellees/Defendants have not, and can not, identify the statute in

effect in 1994 which removed those vested rights from physician assistants.

The defendants have not, and can not, identify the basis for asserting that Mr.

Perez waived his vested rights as identified herein. The defendants have not,

and can not, identify the legal basis for concluding that Mr. Perez can not

challenge the Constitutionality of the statutes which adversely affect his

Brazos River Authority v. City of Graham, 335 SW 2d 247, 251 (Tex. Civ. App. —Fort Worth
1960), affd. , 354 SW 2d 99 (1961).
" id
 rights

WHEREFORE. Mr Perez respectfully submits that, the Trial Court's

decision be reverse and the case remanded.

Respectfully Submitted,

/S/ Jose A Perez
34 Candle Pine Place
The Woodlands, TX 77381
theaescula ius mail. com
281-673-0452

Cleveland Board of Education v. Loudermill. ,470 US 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487
(1985); Loudermill involved a challenge to an Ohio civil service statute that provided that a civil
servant was entitled to retain his position during good and efficient service, and could not be
dismissed except for "misfeasance, malfeasance, or nonfeasance in office. " Id. at 539. The Court
in Loudermill concluded that just because an entitlement arose from state law did not mean that
the legislature had the right to define the procedures to be followed to protect that entitlement.
"The point is straightforward: the Due Process clause provides that certain substantive rights—
life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate
"
procedures. Id. at 541. Once a legislature confers a property interest, it may not deprive a
recipient of that property interest without adequate procedures even though a legislature may
have elected not to confer a property interest in the first instance. Id. The "bitter with the
sweet"* doctrine advocated by Tyler in the case at hand was rejected by the Court in
Loudermill. Once a legislature has conferred a property interest in employment by enacting a
statute that defines the terms of the employment, as is the case here, that interest is protected by
the procedural guarantees of the due process clause. The state statute that defines the protected
property interest may not also restrict the procedures that protect that interest. Id.
See also: Kadrmas v. Dickinson Public Schools, 487 U. S. 450 (1988). "The Kadrmas Court
addressed a scenario where a student challenged a North Dakota statute which permitted some
school districts to charge a user fee for bus service. Before challenging the statute on
constitutional grounds, the student partially paid the fee and regularly took the bus to school. The
defendants argued that this acceptance of the benefit of bus service estopped the student from
challenging the statute's constitutionality. Id. at 456. Rejecting this argument, the Court
distinguished the Fahey decision because the students did not owe their existence to a statute. Id.
The Court continued, "and we doubt that plaintiffs are generally forbidden to challenge a statute
"
simply because they are deriving some benefit from it. Id. at 456-57.
"
 CERTIFICATE OF SERVICE

It is hereby certified that a copy of the foregoing "Motion For Rehearing "was
served by emailing a copy thereof via the State efiling system on this 16 Day of
December 2015 to:

Ted A Ross, Esq
Assistant Attorney General
PO Box 12548
Austin, TX 78711-2548
ted. ross texasattorne eneral. ov
Mar aret. Evins texasattorne eneral. ov

/S/ Jose A Perez
Jose A. Perez

TRAP 9.4(i)(3)
CERTIFICATE OF COMPLIANCE

This brief was prepared with a conventional 14-point typeface, with footnotes in

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