Ruben Aleman, M.D. v. Texas Medical Board

IN THE SUPREME COURT OF TEXAS
══════════
No. 17-0385
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RUBEN ALEMAN, M.D., PETITIONER,
v.

TEXAS MEDICAL BOARD, RESPONDENT
══════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
══════════════════════════════════════════

Argued January 22, 2019

JUSTICE LEHRMANN delivered the opinion of the Court, in which CHIEF JUSTICE HECHT,
JUSTICE GREEN, JUSTICE GUZMAN, and JUSTICE DEVINE joined, and in which JUSTICE BUSBY
joined except as to footnote 9.

JUSTICE BLACKLOCK filed a concurring opinion, in which JUSTICE BROWN joined.

JUSTICE BOYD filed a dissenting opinion.

In this administrative appeal, we review the Texas Medical Board’s order imposing

disciplinary sanctions under the Medical Practice Act against a physician for violating a state law

that requires medical certifications for death certificates to be completed electronically. On the

physician’s petition for judicial review, the trial court affirmed the Board’s order, and the court

of appeals likewise affirmed. The physician argues that the Board lacked jurisdiction over the

proceedings, that the Medical Practice Act does not authorize disciplinary action for the conduct

at issue, that compliance with the electronic certification requirement was impossible, that the
Board’s sanction was so severe as to be an abuse of discretion, and that the physician is entitled

to recover attorney’s fees. We agree with the physician that disciplinary action was not

authorized and thus reverse the court of appeals’ judgment in part.

I. Background

A. Death Certificates: Statutory Framework

The Texas Health and Safety Code places the responsibility of filing a death certificate on

the “person in charge of interment or in charge of removal of a body from a registration district

for disposition.” TEX. HEALTH & SAFETY CODE § 193.002. With certain inapplicable

exceptions, that person must “obtain the required medical certification from the decedent’s

attending physician . . . if the death occurred under the care of the [physician] in connection with

the treatment of the condition or disease process that contributed to the death.” Id.

§ 193.005(a). 1 Generally, the Act requires that the medical certification be completed no later

than five days after the physician receives the death certificate, id. § 193.005(b), 2 and that the

certificate be filed with the appropriate local registrar no later than ten days after the death

occurs, id. § 193.003(a). 3

1
The Act allows other designated physicians to complete the medical certification if the attending
physician is unavailable and other requirements are met. TEX. HEALTH & SAFETY CODE § 193.005(c). And in 2017,
the Legislature amended the Act to allow a physician assistant or advanced practice registered nurse to complete the
certification for certain patients receiving hospice services and palliative care. Act of May 30, 2017, 85th Leg.,
R.S., ch. 509, § 1, 2017 Tex. Gen. Laws 1343, 1343–44 (codified at TEX. HEALTH & SAFETY CODE § 193.005(a-1)).
2
The Act requires the person completing the medical certification to notify the funeral director of the
reason for delay if the certification cannot be completed in a timely manner. TEX. HEALTH & SAFETY CODE
§ 193.005(g).
3
If the person required to file the certificate is licensed by a state agency, the Act prohibits the agency from
taking “disciplinary action against the person for failure to timely file the certificate if the person supplies written
documentation that the person has made a good faith effort to [timely] file . . . and the failure to [do so] results from
circumstances beyond the person’s control.” Id. § 193.0041.

2
 In 2007, the Legislature amended chapter 193, adding a provision that requires the person

completing the medical certification to “submit the information and attest to its validity using an

electronic process approved by the state registrar.” Act of May 17, 2007, 80th Leg., R.S.,

ch. 302, § 2, 2007 Tex. Gen. Laws 577, 577 (codified at TEX. HEALTH & SAFETY CODE

§ 193.005(h)). During the time period at issue in this case, the approved electronic process for

preparing and recording death certificates was the Texas Electronic Death Registration system

(known as TEDR), administered by the Texas Department of State Health Services’ Vital

Statistics Unit.4

To use the TEDR system, a physician would submit an application to the Department and

receive a password from the registrar. When the person required to file a death certificate (often

a funeral director) prepared his portion of the certificate electronically and entered the medical

certifier’s information, the system automatically notified the certifier via email that certification

was necessary. The certifying physician would then log into the system to complete the

certification. If the certifier was not registered to use the system, the certificate could be

“dropped to paper” by the funeral director, meaning it was removed from the system, and sent to

the physician for completion on paper. In either event, the completed certificate was filed with

the local registrar.

B. Factual and Procedural Background

J.S., a patient of Dr. Ruben Aleman’s, died on July 16, 2011. The funeral director

generated and signed J.S.’s death certificate electronically. However, Dr. Aleman was not

4
According to the Department’s website, a new registration system called Texas Electronic Vital Events
Registrar (TxEVER) went live on January 1, 2019, replacing TEDR and the corresponding system for preparing and
recording birth certificates. See https://dshs.texas.gov/vs/field/The-TxEVER-Project/.

3
registered with the TEDR system, so the certificate was dropped to paper and sent to him for

manual certification. Dr. Aleman received and hand-certified the paper certificate on July 29.

The certificate became “official” on August 8, when it was certified by the local registrar. On

August 16, Dr. Aleman submitted an application to register with the TEDR system, and his

application was approved and took effect three days later. After registering, Dr. Aleman

attempted to certify J.S.’s death certificate electronically. However, the system would not allow

him to do so once the certificate became official.

Almost two years later, on May 3, 2013, the Texas Medical Board filed a complaint with

the State Office of Administrative Hearings (SOAH) seeking disciplinary action against

Dr. Aleman. 5 The complaint, signed and sworn to by a Board staff attorney, alleged that

“[r]ather than certifying the patient’s death certificate through TEDR as required, [Dr. Aleman]

required the mortuary to provide him with a paper death certificate,” which he “ultimately

signed.” The complaint alleged that, in doing so, Dr. Aleman violated Health and Safety Code

sections 193.002(4) (requiring death certificates to be filed electronically) and 193.005(h)

(requiring death certificates to be medically certified electronically). The complaint further

alleged that this conduct violated the Medical Practice Act, which authorizes disciplinary action

against a licensed physician for “commit[ting] unprofessional or dishonorable conduct that is

likely to deceive or defraud the public,” including “an act that violates any state or federal law if

the act is connected with the physician’s practice of medicine.” TEX. OCC. CODE

§§ 164.052(a)(5), .053(a)(1). Finally, the complaint alleged the case involved aggravating

5
After the electronic certification requirement went into effect in September 2007, the Board observed a
grace period until June 1, 2011, refraining from taking disciplinary action against physicians who failed to comply
with the requirement during that period. The events involving Dr. Aleman occurred shortly after the grace period
expired.

4
factors—increased potential for harm to the public and an intentional, premeditated, knowing, or

grossly negligent act—that should be taken into consideration in determining sanctions.

Dr. Aleman filed a motion to dismiss and plea to the jurisdiction, arguing that the Board

lacked subject matter jurisdiction because the complaint did not comply with the Medical

Practice Act’s requirements. See id. § 164.005. The administrative law judge (ALJ) denied the

motion. The ALJ also denied both parties’ motions for summary disposition as well as

Dr. Aleman’s motion for sanctions. After a hearing, the ALJ issued a Proposal for Decision

containing findings of fact and conclusions of law. The ALJ found that Dr. Aleman did not

violate Health and Safety Code section 193.002(4), which applies only to persons required to file

death certificates. However, the ALJ concluded that Dr. Aleman did violate section 193.005(h)

by failing to complete the medical certification electronically and that his noncompliance “did

not result from circumstances beyond his control.” In turn, the ALJ found that, because the

violation was related to Dr. Aleman’s practice of medicine, he “by definition” violated the

Medical Practice Act. The ALJ further found that no aggravating factors were present in the

case. Finally, the ALJ concluded that Dr. Aleman was not entitled to, nor was SOAH authorized

to award, attorney’s fees.

The Board adopted the ALJ’s findings and imposed sanctions. Specifically, the Board

ordered Dr. Aleman to: take and pass the Board’s Jurisprudence Examination within one year (in

no more than three attempts); pay a $3,000 administrative penalty; complete sixteen hours of

continuing medical education within one year, including eight hours of ethics and eight hours of

risk management; and give a copy of the Board’s order to “all hospitals, nursing homes,

5
treatment facilities, and other health care entities” where Dr. Aleman has privileges or otherwise

practices.

On Dr. Aleman’s petition for judicial review of the Board’s order, the trial court affirmed

the order in all relevant respects, and the court of appeals affirmed the trial court’s judgment.

565 S.W.3d 26 (Tex. App.—Austin 2017). The court of appeals held in pertinent part: (1) the

Board’s complaint complied with all statutory requirements, id. at 31; (2) substantial evidence

supported the Board’s conclusion that Dr. Aleman violated the Medical Practice Act, id. at 35;

(3) no legal impossibility excused Dr. Aleman’s failure to comply because “the impediment to

Aleman’s submitting the medical certification electronically was of his own making—his failure

to register with the TEDR until August 2011,” id.; (4) the discipline imposed by the Board was

neither in excess of its statutory authority nor arbitrary or capricious, id. at 36; and (5) the Board

did not abuse its discretion in declining to award Dr. Aleman attorney’s fees as sanctions for

frivolous pleadings, id. at 37. We granted Dr. Aleman’s petition for review.

II. Discussion

A. Sufficiency of Complaint

Texas Occupations Code section 164.005 prescribes the procedure for instituting formal

administrative proceedings against a physician. Dr. Aleman asserts that the formal complaint

against him did not comply with the section’s requirements, depriving the Board of jurisdiction

over this proceeding. The Board responds that the complaint was statutorily compliant and,

alternatively, that any defects are not jurisdictional. See City of DeSoto v. White, 288 S.W.3d

389, 394 (Tex. 2009) (explaining that we presume statutory requirements are not jurisdictional

6
absent clear legislative intent to the contrary). We hold that the complaint met the statutory

requirements and thus need not decide whether those requirements are jurisdictional.

Section 164.005 provides in pertinent part:

(a) In this section, “formal complaint” means a written statement made by a
credible person under oath that is filed and presented by a board representative
charging a person with having committed an act that, if proven, could affect the
legal rights or privileges of a license holder or other person under the board’s
jurisdiction.

(b) Unless otherwise specified, a proceeding under this subtitle or other applicable
law and a charge against a license holder may be instituted by an authorized
representative of the board.

(c) A charge must be in the form of a written affidavit that:

(1) is filed with the board’s records custodian or assistant records
custodian; and

(2) details the nature of the charge as required by this subtitle or other
applicable law.

....

(f) A formal complaint must allege with reasonable certainty each specific act
relied on by the board to constitute a violation of a specific statute or rule. The
formal complaint must be specific enough to:

(1) enable a person of common understanding to know what is meant by
the formal complaint; and

(2) give the person who is the subject of the formal complaint notice of
each particular act alleged to be a violation of a specific statute or rule.

TEX. OCC. CODE § 164.005(a)–(c), (f). Dr. Aleman does not contend that the complaint provided

insufficient detail or notice with respect to the particular acts underlying the alleged violations.

Rather, he insists that the complaint was not “in the form of a written affidavit” or “made by a

7
credible person under oath” because the Board staff attorney who signed the complaint lacked

personal knowledge of the events in question.

As the court of appeals noted, the Texas Government Code defines “affidavit” as “a

statement in writing of a fact or facts signed by the party making it, sworn to before an officer

authorized to administer oaths, and officially certified to by the officer under his seal of office.”

TEX. GOV’T CODE § 312.011(1). The complaint at issue meets this definition: it is in writing,

states facts, is signed by the party stating them, and is sworn and notarized. We apply this

definition in construing civil statutes “unless a different meaning is apparent from the context of

the statute in which the word appears.” Id. §§ 312.001, .011. But no such different meaning—

i.e., one adding a requirement that the complaint be signed by a person with personal

knowledge—is apparent from the context of section 164.005.

To the contrary, section 164.005(b) provides that, “[u]nless otherwise specified, a

proceeding under this subtitle or other applicable law and a charge against a license holder may

be instituted by an authorized representative of the board.” TEX. OCC. CODE § 164.005(b). This

provision would make little sense if personal knowledge were required because board

representatives typically will not have such knowledge of the facts underlying an alleged

Medical Practice Act violation. Further, the statute contains no indication that a formal

complaint is intended to have evidentiary value in the proceedings. By contrast, as the court of

appeals recognized, affidavits must affirmatively be “made on personal knowledge” to constitute

competent evidence in the summary judgment context. TEX. R. CIV. P. 166a(f). Section 164.005

contains no such express requirement, and we decline to imply one. Accordingly, we hold that

the complaint against Dr. Aleman complied with the Medical Practice Act.

8
 B. Authorization for Disciplinary Action
Under the Medical Practice Act

Dr. Aleman next argues that the Board erred in taking disciplinary action against him for

failing to complete the medical certification for J.S.’s death certificate electronically. Under the

Administrative Procedure Act, the Board’s order may be reversed if its findings and conclusions

are “not reasonably supported by substantial evidence” or are “arbitrary or capricious or

characterized by abuse of discretion.” TEX. GOV’T CODE § 2001.174(2)(E), (F). The Board’s

factual findings are reviewed under a substantial evidence standard, meaning they will be upheld

if “more than a mere scintilla” of evidence supports them. City of Dallas v. Stewart, 361 S.W.3d

562, 566 (Tex. 2012) (internal quotation marks omitted). However, the issue here is not whether

Dr. Aleman did or did not certify electronically—it is undisputed that he did not. Rather, the

parties dispute whether the Medical Practice Act authorized disciplinary action for that conduct,

presenting an issue of statutory interpretation.

Statutory interpretation involves questions of law that we consider de novo, even when

reviewing agency decisions. Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm’n,

518 S.W.3d 318, 325 (Tex. 2017). We generally “rely on the plain meaning of a statute’s words”

to discern legislative intent. Id. In evaluating that language, we construe the words and phrases

chosen by the Legislature in context rather than in isolation. Id. at 326. That is, “our objective is

not to take definitions and mechanically tack them together,” but to “consider the context and

framework of the entire statute” and construe it as a whole. Id.

9
 Under the Medical Practice Act, the Board has “the power to regulate the practice of

medicine.” 6 TEX. OCC. CODE § 152.001(a). As part of its authority to enforce the Act, the Board

may take disciplinary action against physicians who engage in certain statutorily prohibited

practices. See id. § 164.051(a). Among these prohibited practices, enumerated in section

164.052, is the commission of “unprofessional or dishonorable conduct that is likely to deceive

or defraud the public, as provided by Section 164.053, or injure the public.” Id. § 164.052(a)(5).

In turn, section 164.053 provides a list of acts that, “[f]or purposes of Section 164.052(a)(5),

[constitute] unprofessional or dishonorable conduct likely to deceive or defraud the public.” Id.

§ 164.053(a). This list includes “an act that violates any state or federal law if the act is

connected with the physician’s practice of medicine.” Id. § 164.053(a)(1).

The Board argues that a physician’s certifying a death certificate using pen and paper

rather than electronically is a violation of state law—specifically, Health and Safety Code section

193.005(h)—and is connected with the physician’s practice of medicine. Thus, the Board

concludes, such conduct is subject to disciplinary action. Dr. Aleman responds that, even if he

technically violated the electronic certification requirement, section 164.053(a)(1) does not

encompass this type of conduct, which does not “actually” qualify as unprofessional or

dishonorable conduct that could “actually” deceive or defraud the public. For the reasons

discussed below, we hold that the Medical Practice Act did not authorize the Board to take

disciplinary action against Dr. Aleman.

6
“Practicing medicine” is defined as “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 [physician].” TEX. OCC. CODE § 151.002(13).

10
 The Board is correct that, in light of the Health and Safety Code’s electronic certification

requirement, Dr. Aleman necessarily violated state law by certifying J.S.’s death certificate

manually, regardless of his knowledge of the law’s existence. But such conduct was subject to

disciplinary action under the Act only if “connected with” the practice of medicine. The

question thus arises: what kind of connection is required between the conduct at issue and the

practice of medicine?

Typically, when applying statutes requiring a connection between two things, our

analysis hinges on how direct that connection must be. See ExxonMobil Pipeline Co. v.

Coleman, 512 S.W.3d 895, 900 (Tex. 2017) (analyzing whether communications were made “in

connection with” a matter of public concern under the Texas Citizens Participation Act, and

rejecting the court of appeals’ determination that more than a “tangential relationship” is

required to trigger the Act); Collingsworth Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706, 709 (Tex.

1998) (examining whether a hospital employee who was fired for committing an assault while

off duty had nevertheless been terminated for misconduct “connected with” her work, rendering

her ineligible for unemployment benefits). However, in this case, the Medical Practice Act

further delimits the scope of the required connection by grouping the conduct described in

section 164.053(a)(1) with a list of behavior that is sanctionable as “unprofessional or

dishonorable conduct that is likely to deceive or defraud the public.” TEX. OCC. CODE

§§ 164.052(a)(5), .053(a).

11
 By classifying the prohibited conduct in this way, 7 the Legislature demonstrated its intent

to authorize discipline for certain acts that fall within that category. Examining the list of

qualifying conduct in its entirety furthers this conclusion:

(a) For purposes of Section 164.052(a)(5), unprofessional or dishonorable conduct
likely to deceive or defraud the public includes conduct in which a physician:

(1) commits an act that violates any state or federal law if the act is
connected with the physician’s practice of medicine;

(2) fails to keep complete and accurate records of purchases and disposals
of:

(A) drugs listed in Chapter 481, Health and Safety Code
[controlled substances]; or

(B) controlled substances scheduled in the Comprehensive Drug
Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801
et seq.);

(3) writes prescriptions for or dispenses to a person who:

(A) is known to be an abuser of narcotic drugs, controlled
substances, or dangerous drugs; or

(B) the physician should have known was an abuser of narcotic
drugs, controlled substances, or dangerous drugs;

(4) writes false or fictitious prescriptions for:

(A) dangerous drugs as defined by Chapter 483, Health and Safety
Code [i.e., drugs that are unsafe for self-medication but are not
included on the list of controlled substances]; or

(B) controlled substances scheduled in Chapter 481, Health and
Safety Code, or the Comprehensive Drug Abuse Prevention and
Control Act of 1970 (21 U.S.C. Section 801 et seq.);

7
We disagree with the court of appeals and the dissent that the Act internally defines the term
“unprofessional or dishonorable conduct likely to deceive or defraud the public.” Rather, the Legislature has
enumerated in section 164.053 a number of practices that are encompassed by that classification, including acts that
violate state law and are connected with the physician’s practice of medicine.

12
 (5) prescribes or administers a drug or treatment that is nontherapeutic in
nature or nontherapeutic in the manner the drug or treatment is
administered or prescribed;

(6) prescribes, administers, or dispenses in a manner inconsistent with
public health and welfare:

(A) dangerous drugs as defined by Chapter 483, Health and Safety
Code; or

(B) controlled substances scheduled in Chapter 481, Health and
Safety Code, or the Comprehensive Drug Abuse Prevention and
Control Act of 1970 (21 U.S.C. Section 801 et seq.);

(7) violates Section 311.0025, Health and Safety Code [which prohibits
billing for a treatment that the provider knows was not provided or was
improper, unreasonable, or medically or clinically unnecessary];

(8) fails to supervise adequately the activities of those acting under the
supervision of the physician; or

(9) delegates professional medical responsibility or acts to a person if the
delegating physician knows or has reason to know that the person is not
qualified by training, experience, or licensure to perform the responsibility
or acts.

Id. § 164.053(a).

It is easy to see how the specific conduct described in subsections (a)(2) through (a)(9)—

keeping inadequate records of controlled substances, prescribing drugs to those known to be drug

abusers, writing false or fictitious prescriptions for certain drugs, prescribing or administering

controlled substances and dangerous drugs in a manner inconsistent with public health and

welfare, billing for unperformed or medically unnecessary treatments, failing to adequately

supervise, and delegating medical responsibilities to unqualified persons—falls under the

13
umbrella of “unprofessional or dishonorable conduct likely to deceive or defraud the public.” 8

The conduct referenced in subsection (a)(1) is less precise, but it is nevertheless intended to fall

within the same classification; otherwise, categorizing the conduct at all serves no purpose.

We therefore hold that an act that violates state or federal law is subject to disciplinary

action by the Board under the Medical Practice Act only if the act is connected with the practice

of medicine in a manner that makes it likely to deceive or defraud the public. In turn, we reject

the Board’s contention that a sufficient connection exists solely by virtue of the fact that

Dr. Aleman certified the death certificate in his capacity as J.S.’s physician. See TEX. HEALTH &

SAFETY CODE § 193.005(a) (explaining when the medical certification should be obtained from

the decedent’s attending physician). Construing the scope of the required connection as broadly

as the Board suggests contravenes fundamental interpretation principles by favoring microscopic

examination of isolated words over consideration of the statute as a whole. 9 It also requires the

phrase “likely to deceive or defraud the public” to be effectively read out of the statute entirely,

violating another basic tenet of statutory construction. Contrary to the Board’s assertion, there is

no indication that the Legislature intended to authorize disciplinary action under sections

8
The dissent opines that failing to adequately supervise subordinates, writing prescriptions for known
narcotic abusers, and prescribing nontherapeutic treatments do not necessarily constitute conduct that is likely to
deceive or defraud the public. Post at ___. We disagree. Failing to supervise subordinates gives patients a false
sense of that person’s authority and control, and prescribing drugs to narcotic abusers or prescribing nontherapeutic
treatments gives others the false impression that the drug or treatment is appropriate.
9
The concurrence would hold that Dr. Aleman’s conduct does not satisfy section 164.053(a)(1) because the
statute requires the affirmative commission of an act, and Dr. Aleman is being accused only of failing to act—
specifically, failing to certify electronically. Post at ___. We do not view the statute so narrowly. Leaving aside
that almost any conduct can be characterized as both acting and failing to act depending on how it is presented—for
example, running a stop sign vs. failing to stop at a stop sign—the allegations against Dr. Aleman are premised on
his actions. The Board alleged, and the ALJ found, that Dr. Aleman certified J.S.’s death certificate manually in
contravention of the Health and Safety Code’s requirement that he do so electronically. In other words, the
complained-of conduct involves the manner in which Dr. Aleman certified the death certificate, which is an
affirmative act.

14
164.052(a)(5) and 164.053 for conduct that is not in fact “likely to deceive or defraud the

public.” That is, in identifying qualifying behavior, the Legislature did not alter the meaning of

the phrase “unprofessional or dishonorable conduct likely to deceive or defraud the public” to

include conduct that is not likely to do either.

Indeed, by providing a finite list of acts in section 164.053 that constitute “unprofessional

or dishonorable conduct likely to deceive or defraud the public” for purposes of section

164.052(a)(5), the Legislature chose to allow sanctions for some acts that fall within this

overarching description but not others. Section 164.053 thus narrows the category’s scope. But

under the Board’s reading, subsection (a)(1) simultaneously broadens that scope by incorporating

conduct that goes beyond the category’s unambiguous parameters. This reading is both

internally inconsistent and, again, ignores the Legislature’s choice to categorize the conduct in

the first instance.

Applying sections 164.052 and 164.053 to the facts at hand, Dr. Aleman’s conduct—

medically certifying a death certificate using pen and paper rather than the approved electronic

system—clearly does not qualify as an act that is connected with the practice of medicine in a

manner likely to deceive or defraud the public. Regardless of the method used to complete the

medical certification process, the information required is the same, the statutory deadlines are the

same, and the certificate’s destination—filing with the local registrar—is the same. 10 See id.

§ 193.003. The effect on the public is likewise the same. By contrast, certainly a physician’s

failure to provide accurate information on a death certificate could be classified as connected

10
Each local registrar is required to send all registered birth and death certificates to the state registrar on a
monthly basis. TEX. HEALTH & SAFETY CODE § 191.029. The state registrar must “arrange, bind, and permanently
preserve [the certificates] in a systematic manner.” Id. § 191.032.

15
with the practice of medicine in a manner “likely to deceive or defraud the public,” as it would

amount to the inclusion of false information in a legally significant public document.

The Board insists that the electronic certification requirement serves an important public

purpose by promoting the prompt issuance of death certificates, thereby reducing delays in

various postmortem legal proceedings. That may very well be, but if anything it proves the

point. Requiring electronic certification may address inefficiencies in the process, but it in no

way addresses fraud or deception. 11 And we fail to see how disciplining a physician for failing

to comply with that requirement comports with the express policy behind the Act: “to protect the

public interest” by “regulat[ing] the granting of [the] privilege [of practicing medicine] and its

subsequent use and control.” TEX. OCC. CODE § 151.003(1); see also Sanchez v. Tex. State Bd.

of Med. Exam’rs, 229 S.W.3d 498, 514 (Tex. App.—Austin 2007, no pet.) (noting that “section

164.052 reflects a broader intent to prevent unqualified or otherwise unfit individuals from

practicing medicine”).

Further, potential fact patterns readily come to mind that only heighten the concerns

associated with the Board’s overly broad interpretation. For example, suppose a physician were

cited for speeding while on the way to the hospital to deliver a baby. The physician has likely

violated a state law, see TEX. TRANSP. CODE §§ 545.351–.352, and under the Board’s

interpretation the physician’s “act” is at least arguably “connected with” his practice of medicine.

Again, however, disciplining such conduct is not consistent with either the Act’s language—

properly construed as a whole—or its purpose. Rather, the statute reflects legislative intent not

11
The dissent implies that we have imposed our own subjective view of what fits within the category’s
description. Post at ___. But not even the Board argues that the conduct at issue does so. Instead, it (and the
dissent) argue that we should ignore the language the Legislature chose to describe this category altogether.

16
to allow such conduct, which is in no way connected with the practice of medicine in a manner

that makes the act likely to deceive or defraud the public, to be the proper subject of a

disciplinary proceeding. 12

Accordingly, we hold that a physician’s act of completing the medical certification for a

death certificate manually rather than by using the approved electronic process does not

constitute a “prohibited practice” under section 164.052 of the Medical Practice Act, and section

164.051 in turn does not authorize the Board to take disciplinary action against a person for such

conduct. Because the Board relied on an erroneous interpretation of the Medical Practice Act to

discipline Dr. Aleman, it necessarily abused its discretion in doing so. We therefore reverse the

court of appeals’ judgment to the extent it upholds the portions of the Board’s order

(1) concluding that Dr. Aleman violated the Medical Practice Act and (2) imposing sanctions

against him. 13

C. Attorney’s Fees

Finally, Dr. Aleman argues that the ALJ abused its discretion in failing to award him

attorney’s fees as sanctions under Texas Civil Practice and Remedies Code chapter 10 and Texas

Rule of Civil Procedure 13. Dr. Aleman contends that some of the allegations against him in the

formal complaint—specifically, that he violated Health and Safety Code section 193.002(4) and

that aggravating factors warranted more severe discipline—were groundless and brought in bad

12
The dissent accuses the Court of rewriting the statute to avoid what we perceive as a troubling result.
Post at ___. To the contrary, we interpret the statute as a whole and in context to conclude that the Legislature
intended to avoid this result. Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520 S.W.3d 887, 893 (Tex.
2017) (“[T]he truest measure of what the Legislature intended is what it enacted.”).
13
Dr. Aleman alternatively argues that any violation of the electronic certification requirement was excused
because it was impossible for him to certify J.S.’s death certificate electronically after it was dropped to paper
without his knowledge by the funeral director. He also argues that, to the extent sanctions were authorized, the
particular sanction imposed by the Board was so severe as to constitute an abuse of discretion. In light of our
holding that Dr. Aleman did not violate the Medical Practice Act, we need not reach these issues.

17
faith, justifying an award of attorney’s fees as sanctions. The Board concluded that SOAH was

not authorized to award attorney’s fees in this proceeding, and we agree.

As a state agency, SOAH has those powers the Legislature expressly confers, along with

“whatever powers are reasonably necessary to fulfill its express functions or duties.” Pub. Util.

Comm’n of Tex. v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310, 316 (Tex. 2001). Section

2003.0421(a) of the Administrative Procedure Act generally authorizes an ALJ employed by

SOAH to “impose appropriate sanctions as provided by Subsection (b) against a party or its

representative” for filing a pleading that is groundless and brought in bad faith or for an improper

purpose. TEX. GOV’T CODE § 2003.0421(a)(1). Subsection (b) then provides:

(b) A sanction imposed under Subsection (a) may include, as appropriate and
justified, issuance of an order:

(1) disallowing further discovery of any kind or of a particular kind by the
offending party;

(2) charging all or any part of the expenses of discovery against the
offending party or its representatives;

(3) holding that designated facts be considered admitted for purposes of
the proceeding;

(4) refusing to allow the offending party to support or oppose a designated
claim or defense or prohibiting the party from introducing designated
matters in evidence;

(5) disallowing in whole or in part requests for relief by the offending
party and excluding evidence in support of those requests; and

(6) striking pleadings or testimony, or both, in whole or in part.

Id. § 2003.0421(b). The authorized sanctions do not include issuance of an order awarding

attorney’s fees.

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 By contrast, a similar provision of the Administrative Procedure Act authorizing SOAH

to impose sanctions in contested cases involving the Public Utility Commission expressly

includes as a permissible sanction “an order . . . requiring the offending party or its

representative to pay . . . the reasonable expenses, including attorney’s fees, incurred by other

parties because of the sanctionable behavior.” Id. § 2003.049(j)(7). This provision demonstrates

that the Legislature has chosen to grant SOAH authority to award attorney’s fees in certain

circumstances, but not in the context of a disciplinary proceeding against a licensed physician.

Dr. Aleman thus relies on Civil Practice and Remedies Code chapter 10 and Texas Rule

of Civil Procedure 13, which “allow a trial court to sanction an attorney or a party for filing

motions or pleadings that lack a reasonable basis in fact or law.” Low v. Henry, 221 S.W.3d 609,

614 (Tex. 2007). Sanctions imposed under these provisions may include attorney’s fees. TEX.

CIV. PRAC. & REM. CODE § 10.004(c)(3); TEX. R. CIV. P. 13, 215.2(b)(8). But as the Attorney

General of Texas has opined, chapter 10 and rule 13 apply to courts, not administrative agencies.

Tex. Att’y Gen. Op. No. JC-0495 (2002) (citing State v. Flag-Redfern Oil Co., 852 S.W.2d 480,

486 n.7 (Tex. 1993) (explaining that an “administrative agency is not a ‘court’ and its contested

case proceedings are not lawsuits”)). And Dr. Aleman references no statutory authority directing

these provisions to be applied to SOAH in this type of proceeding. Accordingly, the Board

correctly held that Dr. Aleman is not entitled to recover attorney’s fees.

III. Conclusion

We hold that (1) the Board had jurisdiction over this proceeding, (2) the Board abused its

discretion in finding that Dr. Aleman violated the Medical Practice Act, and (3) Dr. Aleman is

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not entitled to attorney’s fees. Accordingly, we affirm the court of appeals’ judgment in part,

reverse it in part, and render judgment vacating the sanctions imposed against Dr. Aleman.

________________________________
Debra H. Lehrmann
Justice

OPINION DELIVERED: May 24, 2019

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