ACCEPTED
03-16-00732-CV
14542985
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/3/2017 7:08:23 PM
JEFFREY D. KYLE
CLERK
No. 03-16-00732-CV
No.03-16-00840-CV
FILED IN
3rd COURT OF APPEALS
__________________________________________________________________
AUSTIN, TEXAS
1/3/2017 7:08:23 PM
IN THE THIRD COURT OF APPEALS JEFFREY D. KYLE
AUSTIN, TEXAS Clerk
JOSE A. PEREZ
Appellant
Vs.
PHYSICIAN ASSISTANT BOARD and MARGARET K. BENTLEY , in her
Individual and Official Capacities
Appellees.
JOSE A. PEREZ’ MOTION FOR AN ORDER DIRECTING THE
PHYSICIAN ASSISTANT BOARD TO REINSTATE MR. PEREZ AS A
PHYSICIAN ASSISTANT WHILE THE SUIT IS BEING VENTILATED
(a)
A COURT OF EQUITY HAS SUBJECT MATTER JURISDICTION
TO PROTECT MR. PEREZ’ RIGHT TO EARN A LIVING
1- Jose A, Perez respectfully requests that the Court of Appeals direct the
Physician Assistant Board to reinstate Mr. Perez as a Physician Assistant
while the case is being ventilated by the courts, As grounds therefore he
shows:
1
2- The right to earn a living working as a physician assistant is a property right
that enjoys Constitutional protection1. A Court of Equity has subject matter
jurisdiction to protect Mr. Perez’ constitutionally protected property right
from the March 7th, 2014 administrative Order2. Texas Government Code §
23.101 assigns petitions for injunctive relief the highest priority.
3- The US3 and the Texas4 Supreme Courts have ruled that statutes which
revoke professional licenses are quasi criminal proceedings. The possibility
that a prosecutor could elect to hamstring his target by preventing him from
paying court costs raises substantial concerns about the fairness of the entire
proceeding. Where, as here, the government prevents a litigant in a quasi-
criminal proceeding from accessing his financial resources the litigant is being
deprived of his right to a fair trial5.
II
1 Castaneda v. Gonzalez, 985 S.W.2d 500 (Tex.App. Dist.1 12/03/1998) citing Smith v. Decker,
312 SW 2d 632, 633 (Tex. 1958) and Font v. Carr, 867 SW 2d 873, 875 (Tex. App.--Houston
[1st Dist.] 1993, writ dism'd w.o.j.). Accord: Board of Regents v. Roth , 408 US 564 (1972)
2 ROA 38-41 – Vol 1 November 22nd, 2016 ; Id; State v. Morales, 869 SW 2d 941, 946-47 (Tex.
1994) citing Crouch v. Craik, 369 S.W.2d 311, 315 (Tex. 1963); Waller v. State, 68 S.W.2d 601
(Tex. App. 1934) ( The general right of every person to pursue any calling, and to do so in his
own way, provided that he does not encroach upon the rights of others, cannot be taken away
from him by legislative enactment.)
3 Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 US 423 , 432 (1982))
(revocation of professional licenses) quoted by Sprint Communications v. Jacobs, et al, No. 12-
815 (US-2013); ); In re Ruffalo, 390 US 544, 551 (1968); Schware v. Board of Bar Examiners,
353 U.S. 232, 238-39, 1 L. Ed. 2d 796, 77 S. Ct. 752 (1957); Cummings v. The State Of
Missouri, 71 U.S. 277 (U.S. 12/01/1866); In re Thalheim, 853 F.2d 383, 388 (5th Cir. 1988) ;
Razatos v. Colorado Supreme Court, 746 F.2d 1429 (10th Cir. 10/29/1984)
4 Scott v. State, 24 S.W. 789 (Tex. 1894)
5 Luis v. US , 136 S.Ct. 1083, (US - March 30, 2016)
2
MR. PEREZ IS TIMELY
CHALLENGING THE MARCH 7th, 2014 ORDER
4- Mr. Perez first case against the Texas Medical Board was dismissed for
lack of subject matter jurisdiction6. Consequently, the term of Mr. Perez’
license was tolled pursuant to the Civil Practice and Remedies Code § 16.0647(
a) (1) and (2) and Government Code § 2001.054 (d)8
II
SOVEREIGN IMMUNITY DOES NOT BAR A
PETITION FOR INJUNCTIVE RELIEF
ANCILLARY TO AN ADMINISTRATIVE APPEAL
5- A hearing on a temporary injunction9 ancillary to an administrative appeal
does not constitute "judicial review”10. An order granting a temporary
injunction is not a ruling on the merits11. The only question before the trial
court in a temporary injunction hearing is whether the applicant is entitled to
preservation of the status quo of the subject matter of the suit pending trial on
the merits12.
6 Perez v. Texas Medical Board et al, No. 03-14-00644-CV (3rd DCA-2015); Petition for
Supreme Court Review denied Perez v. Texas Medical Board and Mari Robinson JD, in her
official capacity, No. 16-0026 (TX -March 18, 2016)
7 Allen v. Port Drum Co., Inc., 777 SW 2d 776, , 778 (Tex. App.-Beaumont 1989, writ denied)
citing Sec. 16.064, Civil Practice and Remedies Code
8States that the term of a license is tolled during the period the license is subjected to judicial
review.
9 ROA 23-25; 48-49 Vol 1 November 22nd, 2016
10 Public Utility Commission v. Water Services, Inc., 709 S.W.2d 765, 766, 768 (Tex. App.-
Austin 1986, writ dism'd).
11 Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 208 (Tex. 1981)
12 id
3
WHEREFORE Mr. Perez respectfully requests that the Appellate Court
enter an Order directing the Physician Assistant Board to (a) immediately
reinstate Mr. Perez as a Physician Assistant; (b) to immediately remove
adverse data from the National Practitioner Data Bank and (c) immediately
remove adverse data from the Physician Assistant Board’s website .
Respectfully Submitted,
_____/S/ Jose A. Perez___
Jose A. Perez
1307 N. Jacinto Street
Conroe, TX 77301-1940
theaesculapius@gmail.com
281-979-8356
Certificate of Conference
As required by Texas Rule of Appellate Procedure 10.1(a)(5), I certify that I
attempted to conferred, with Mr. Ted A. Ross but he failed or refused to respond.
___/S/ Jose A Perez__
Jose A. Perez
CERTIFICATE OF SERVICE
It is hereby certified that a copy of the foregoing “ Jose A. Perez Motion For an
Order directing the Physician Assistant Board to reinstate Mr. Perez as a Physician
Assistant Board while the suit is being ventilated” was served by emailing a copy
thereof via the State efiling system on this 3rd Day of January 2016 to:
4
Ted A Ross, Esq
Assistant Attorney General
PO Box 12548
Austin, TX 78711-2548
ted.ross@texasattorneygeneral.gov
/S/ Jose A. Perez
Jose A. Perez
5