Scott Freshour, Margaret McNeese, Timothy Webb, and Sherif Zaafran, M.D., in Their Official Capacities as Officers of the Texas Medical Board// Robert W. Van Boven M.D., D.D.S. v. Robert W. Van Boven M.D., D.D.S.// Amy Swanholm and Christopher Palazola, in Their Official Capacities as Officers of the Texas Medical Board

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-18-00817-CV

Appellants, Scott Freshour, Margaret McNeese, Timothy Webb, and Sherif Zaafran, M.D.,
in their Official Capacities as Officers of the Texas Medical Board//
Cross-Appellant, Robert W. Van Boven M.D., D.D.S.

v.

Appellee, Robert W. Van Boven M.D., D.D.S.//
Cross-Appellees, Amy Swanholm and Christopher Palazola,
in their Official Capacities as Officers of the Texas Medical Board

FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY,
NO. D-1-GN-17-005957, THE HONORABLE DUSTIN M. HOWELL, JUDGE PRESIDING

MEMORANDUM OPINION

The dispute underlying this appeal arises from a disciplinary proceeding brought

by the Texas Medical Board (the Board) against appellee Robert W. Van Boven, M.D., D.D.S.

Although the proceeding resulted in a final order that dismissed the complaint against him, Dr.

Van Boven filed suit against Scott Freshour, Margaret McNeese, Timothy Webb, Sherif Zaafran,

Amy Swanholm, and Christopher Palazola (collectively, the Board Defendants), in their official

capacities as officers of the Board, contending that they committed ultra vires acts when

reporting the outcome of the proceeding to the National Practitioner Data Bank. The Board

Defendants subsequently filed a plea to the jurisdiction asserting that Dr. Van Boven’s claims

were barred by sovereign immunity, which the court granted as to some of the Board Defendants
but denied as to others. This interlocutory appeal and cross-appeal followed. See Tex. Civ. Prac.

& Rem. Code § 51.014(a)(8). Because we conclude that Dr. Van Boven’s claims are barred by

sovereign immunity, we reverse that portion of trial court’s order denying the plea to jurisdiction

and affirm that portion of the order granting the plea to the jurisdiction.

BACKGROUND

Administrative Proceedings and Initial Report to the National Practitioner Data Bank

In 2015, the Texas Medical Board received two separate complaints from patients

of Dr. Van Boven alleging that he had engaged in inappropriate conduct while performing a

medical examination. Following an expedited hearing, a three-member disciplinary panel from

the Board placed a temporary restriction on Dr. Van Boven’s license to practice medicine in

Texas. See Tex. Occ. Code § 164.059(b) (temporary suspension or restriction of license). The

restriction prohibited Dr. Van Boven from treating female patients, and the order imposing the

restriction stated that it would “remain in effect until . . . superseded by a subsequent Order of

the Board.”

In March 2016, the Board reported the temporary restriction on Dr. Van Boven’s

license to the National Practitioner Data Bank (NPDB). Authorized by the Health Care Quality

Improvement Act of 1986, 42 U.S.C. §§ 11101-52, and administered by the United States

Department of Health and Human Services, the NPDB collects and maintains “information

relating to the professional competence and conduct of physicians, dentists, and other health care

practitioners.”1 See 45 C.F.R. § 60.1. In part, the Act seeks to prevent “incompetent physicians

1
Although the Act does not expressly call for the creation of the NPDB, it does direct
the Secretary to promulgate regulations providing for the reporting of physician information;
the “disclosure of [reported] information, upon request to the physician or practitioner”; and

2
[from moving] State to State without disclosure or discovery of the physician’s previous

damaging or incompetent performance.” See 42 U.S.C. § 11101(2). In furtherance of this

objective, each state medical board is required to report to the NPDB whenever it “revokes or

suspends (or otherwise restricts) a physician’s license or censures, reprimands, or places on

probation a physician, for reasons relating to the physician’s professional competence or

professional conduct.” Id. § 11132; see id. § 11151(2) (defining “Board of Medical Examiners”).

Information reported to the NPDB is considered confidential but may be provided, under limited

circumstances, to other licensing boards, hospitals, and other healthcare entities. See id.

§ 11137(a), (b). Published guidance from the NPDB outlines four types of reports that a state

medical board, in certain circumstances, should file with the NPDB: (1) an Initial-Adverse-

Action Report; (2) a Revision-to-Action Report; (3) a Correction Report; and (4) a Void Report.

See id. § 11134 (providing that information reported under Act “shall be reported regularly . . .

and in such form and manner as the Secretary prescribes”); see also id. § 11137(c) (providing

that “no person or entity . . . shall be held liable with respect to any report made . . . without

knowledge of the falsity of the information contained in the report”). In this case, the Board

reported the temporary restriction on Dr. Van Boven’s license to the NPDB as an Initial-

Adverse-Action Report.

The Board later filed a formal complaint against Dr. Van Boven with the State

Office of Administrative Hearings (SOAH), and a four-day hearing on the complaint was held

before an administrative law judge (ALJ). See Tex. Occ. Code § 164.005. On September 15,

2017, the ALJ issued a proposal for decision concluding that the Board “failed to prove, by

procedures in the case of disputed accuracy. See 42 U.S.C. §11136. Pursuant to this directive,
the Secretary has promulgated regulations establishing the NPDB. 45 C.F.R. § 60.1.

3
preponderance of the evidence, that Dr. Van Boven [was] subject to sanction.” On December 8,

2017, the Board issued a “Final Order” that adopted the ALJ’s findings of fact and conclusions

of law and stated, “This matter is hereby dismissed. . . . This Order supersedes the Order of

Temporary Restriction issued on February 29, 2016, and [Dr. Van Boven’s] license to practice

medicine in Texas is no longer restricted.” See id. § 164.007(a) (providing that after receiving

ALJ’s findings of fact and conclusions of law, “the board shall dispose of the contested case

by issuing a final order based on the [ALJ’s] findings of fact and conclusions of law”); see also

22 Tex. Admin. Code § 187.37(a), (b) (Texas Medical Board, Final Decisions and Orders,).

Follow-up Report to the NPDB

At the center of this dispute is the report made by the Board to the NPDB

informing it of the Final Order.2 See 45 C.F.R. § 60.6(b) (providing that entity “which reports

information on licensure” “must also report any revision to the action originally reported”). The

Board submitted its December 2017 report to the NPDB as a Revision-to-Action Report, and in

the report stated:

On December 8, 2017, the Board entered a Final Order regarding [Dr. Van
Boven], dismissing the Board staff’s complaint. The action was based on the
findings of an [ALJ] at [SOAH]. This Order resolves a formal complaint filed at
SOAH. The Order supersedes all previous orders.

The next day Dr. Van Boven informed the Board in writing that he disagreed with

its decision to submit a Revision-to-Action Report and argued that the Board should have

2
In his appellate brief, Dr. Van Boven complains, in part, that the Board “unilaterally
issu[ed] a ‘modified’ order instead of a Decision.” Without expressing any opinion on the merits
of this argument, we will refer to the Board’s action on the ALJ’s proposal for decision as a
“Final Order” because the document is titled as such in the appellate record.

4
submitted a Void Report instead. In his letter, Dr. Van Boven asserted that he had been

completely exonerated by the ALJ’s decision and by the Board’s subsequent Final Order

adopting that decision. Dr. Van Boven reasoned that, as a result of the decision, any record of

the underlying disciplinary proceedings against him should be removed from his disclosable

NPDB record—including any record of the Board’s decision to temporarily restrict his license—

which could only be accomplished by the submission of a Void Report.

The Board responded to Dr. Van Boven’s written complaint and informed him it

disagreed with his assertion that it should have submitted a Void Report and not a Revision-to-

Action Report. The Board explained in a letter to Dr. Van Boven that the NPDB’s rules and

published guidance require it to submit a Revision-to-Action Report any time it “modifies an

adverse action previously reported” to the NPDB and that, in this case, the Board’s Final Order

modified the previously reported temporary restriction on his license.

Dr. Van Boven also contacted the NPDB about the Board’s failure to submit a

Void Report, invoking the NPDB’s dispute resolution process. Upon reviewing materials and

arguments submitted by the parties, the NPDB notified the Board that “there is a field in the

Report that requires a correction.” Specifically, the NPDB recommended that the Board reword

its description of the action taken and “allow the narrative to reflect the complete record.” In

short, the NPDB recommended that the Board modify its Revision-to-Action Report to more

accurately reflect that the Final Order states that the ALJ found that Board staff had failed to

prove the allegations raised by the patients; that the ALJ concluded that the Board staff

had failed to prove that Dr. Van Boven was subject to sanctions; and that the Board adopted

all of the ALJ’s findings of fact and conclusions of law. The NPDB also directed the Board to

include in its corrected Report: “The matter regarding Dr. Van Boven was dismissed and the

5
December 8, 2017 Final Order superseded the February 29, 2016 Order of Temporary

Restriction and Dr. Van Boven’s license to practice medicine in Texas is no longer restricted.”

The Board subsequently submitted a corrected Revision-to-Action Report, following the

NPDB’s recommendation.

In April 2018, the NPDB issued its “Dispute Resolution Decision” based on the

Revision-to-Action Report as corrected. In its written decision, the NPDB rejected Dr. Van

Boven’s argument that the Board had failed to comply with NPDB-reporting requirements when

it filed a Revision-to-Action Report and not a Void Report. According to the NPDB’s decision,

a Void Report “is appropriate when an action is overturned or vacated” and effectively acts as a

“withdrawal of a report in its entirety.” In contrast, when a final action is taken that “modifies an

adverse action previously reported to the NPDB,” a reporting medical board should file a

Revision-to-Action Report. Relying on the language of the Final Order, the NPDB concluded

that it “was the intention of the Board to modify the restriction on [Dr. Van Boven’s] license,

not overturn or vacate the [temporary restriction order] all together,” and that “[p]ursuant to the

regulations that govern the NPDB, the Board was legally required to file the Revision to Action

Report.” In reaching this conclusion, the NPDB emphasized that it could not substitute its

judgment for that of the Board, that it was the Board’s “intention and authority to modify the

Initial Order based on a decision of SOAH by reinstating [Dr. Van Boven’s] license,” and that

the “NPDB dispute process is not a mechanism to appeal the Board’s decision.”

Subsequent State Lawsuit

Unsatisfied with Board’s response to his complaint to the Revision-to-Action

Report and with the NPDB’s decision, Dr. Van Boven amended his previously filed suit in

6
district court to seek a declaratory judgment that the Final Order “constitutes an overturning of

its Initial Action/Order” and that the Board was required to submit a Void Report to the NPDB.3

Dr. Van Boven also requested mandamus and injunctive relief that would require the Board

Defendants to withdraw the Revision-to-Action Report and to submit a Void Report. In response,

the Board Defendants filed a plea to the jurisdiction asserting that Dr. Van Boven’s suit was

barred by sovereign immunity. In response to the plea, Dr. Van Boven alleged that his suit was

not barred by sovereign immunity because his claims are based on the Board Defendants’ ultra

vires acts, a recognized exception to immunity.

Following a hearing, the trial court denied Dr. Van Boven’s request for a

temporary injunction, granted the defendants’ plea to the jurisdiction with respect to two

defendants (Palazola and Swanholm), and denied the defendants’ plea to the jurisdiction with

respect to the other four defendants. Those four defendants (Freshour, McNeese, Webb, and

Zaafran) now appeal from the trial court’s denial of their plea to the jurisdiction.4 Dr. Van

Boven cross-appeals from the court’s grant of the plea to the jurisdiction with respect to the two

3
On October 25, 2017, after the ALJ issued his proposal for decision but before the
Board issued its Final Order, Dr. Van Boven filed this suit in district court, representing himself
pro se. In his original petition, Dr. Van Boven sought “emergency relief by declaration of the
Court to nullify a Temporary Restriction void of authority of Administrative law by the Board.”
4
According to Dr. Van Boven’s live pleadings, Freshour “is the General Counsel and
former Interim Executive Director of the Texas Medical Board”; McNeese “is a member of the
Executive Committee” and “Chair of the [Board] Disciplinary Process Review Committee”;
Webb “is the Chair of the Licensure Committee of the [Board]” and “a member of the Executive
Committee of the [Board]”; and Zaafran “is the President of the [Board]” and “a member of the
Executive Committee of the [Board].”

7
other defendants (Swanholm and Palazola).5 Dr. Van Boven also cross-appeals from the trial

court’s denial of his request for a temporary injunction.

Because subject-matter jurisdiction is a threshold issue, we first consider the trial

court’s rulings on the Board Defendants’ plea to the jurisdiction. See Houston Belt & Terminal

Ry. v. City of Houston, 487 S.W.3d 154, 158 (Tex. 2016) (noting that immunity implicates

subject-matter jurisdiction and, therefore, is “properly asserted in a plea to the jurisdiction”).

DISCUSSION

Standard of Review

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack

of subject-matter jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). The

burden is on the plaintiff to plead or present evidence of facts that affirmatively demonstrate a

trial court’s subject-matter jurisdiction. See Heckman v. Williamson County, 369 S.W.3d 137,

149-50 (Tex. 2012). Because subject-matter jurisdiction is a question of law, we review a trial

court’s ruling on a plea to the jurisdiction de novo. Texas Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226 (Tex. 2004). In conducting this review, we begin with the plaintiff’s live

pleadings and determine whether the facts alleged affirmatively demonstrate the trial court’s

jurisdiction to hear the cause. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635

(Tex. 2012). We look to the pleader’s intent, construe the pleadings liberally in favor of

jurisdiction, and accept the allegations in the pleadings as true. Miranda, 133 S.W.3d at 227.

In addition, we may consider relevant evidence submitted by the parties and must

do so when necessary to resolve the jurisdictional issues raised.6 Bland Indep. Sch. Dist. v. Blue,

5
According to Dr. Van Boven’s live pleadings, Swanholm is “an Assistant General
Counsel for the [Board]” and Palazola is “the litigation manager for the [Board].”

8
34 S.W.3d 547, 555 (Tex. 2000). “Our ultimate inquiry is whether the particular facts presented,

as determined by the foregoing review of the pleadings and any evidence, affirmatively

demonstrate a claim within the trial court’s subject-matter jurisdiction.” Bacon v. Texas

Historical Comm’n, 411 S.W.3d 161, 171 (Tex. App.—Austin 2013, no pet.).

Sovereign Immunity and Ultra Vires

Sovereign immunity “shield[s] the public from the costs and consequences of

improvident actions of their governments,” and as a result, generally protects officials from

liability for erroneous decisions and mistakes. Tooke v. City of Mexia, 197 S.W.3d 325, 331-32

(Tex. 2006). Absent legislative waiver, sovereign immunity deprives Texas courts of subject-

matter jurisdiction over suits against the State or its agencies or subdivisions. Texas Dep’t of

Transp. v. Sefzik, 355 S.W.3d 618, 620-21 (Tex. 2011). As a result, “there is no general right to

challenge or seek review of a state agency order or decision in Texas state court,” Bacon,

411 S.W.3d at 171, and legislative waivers of immunity must be clear and unambiguous, LMV-

AL Ventures, LLC v. Texas Dep’t of Aging & Disability Servs., 520 S.W.3d 113, 120 (Tex.

App.—Austin 2017, pet. denied).

“[I]n certain narrow instances, a suit against a state official can proceed even in

the absence of a waiver of immunity if the official’s actions are ultra vires.” Hall v. McRaven,

6
When the jurisdictional issues overlap with the merits of the plaintiff’s claims, the party
asserting the plea to the jurisdiction must overcome a traditional-summary-judgment-like burden
of proof. Bacon v. Texas Historical Comm’n, 411 S.W.3d 161, 171 (Tex. App.—Austin 2013,
no pet.); University of Tex. v. Poindexter, 306 S.W.3d 798, 806-07 (Tex. App.—Austin 2009, no
pet.). Under this standard, we consider whether the evidence in the record raises a fact issue, and
if it does, the jurisdictional issue must be resolved by the trier of fact. Klumb v. Houston Mun.
Emps. Pension Sys., 458 S.W.3d 1, 8 (Tex. 2015); Texas Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 228 (Tex. 2004). Conversely, the trial court must rule on the plea as a matter of
law if the evidence is undisputed or fails to raise a fact issue. Miranda, 133 S.W.3d at 228.

9
508 S.W.3d 232, 238 (Tex. 2017). Under what is often referred to as the “ultra vires exception”

to sovereign immunity, a claimant may file suit to compel a government official “to comply with

statutory or constitutional provisions” through prospective injunctive or declaratory relief.

City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Properly pleaded ultra vires suits

do not implicate sovereign immunity because they do not attempt to exert control over the state

but, instead, attempt to reassert control of the state over one of its agents. Id. Consequently,

ultra vires claimants are limited to prospective declaratory or injunctive relief restraining ultra

vires conduct, and monetary claims are generally barred. Id. at 374-77.

To fall within the ultra vires exception, the plaintiff must “allege, and ultimately

prove, that the officer acted without legal authority or failed to perform a purely ministerial act.”

Id. at 372. “[M]inisterial acts” are those “where the law prescribes and defines the duties to be

performed with such precision and certainty as to leave nothing to the exercise of discretion or

judgment.” McRaven, 508 S.W.3d at 238. Conversely, discretionary acts are those that require

the exercise of judgment and personal deliberation. Southwestern Bell Tel., L.P. v. Emmett,

459 S.W.3d 578, 587 (Tex. 2015). While “immunity bars suits complaining of an exercise of

absolute discretion,” “a government officer with some discretion to interpret and apply a law

may nonetheless act ‘without legal authority,’ and thus ultra vires, if he exceeds the bounds

of his granted authority or if his acts conflict with the law itself.” Houston Belt, 487 S.W.3d

at 158. “Conversely, if the plaintiff alleges only facts demonstrating acts within the officer’s

legal authority and discretion, the claim seeks to control state action, and is barred by

sovereign immunity.” Creedmoor-Maha Water Supply Corp. v. Texas Comm’n on Envtl. Quality,

307 S.W.3d 505, 515-16 (Tex. App.—Austin 2010, no pet.). “[M]erely asserting legal conclusions

or labeling a defendant’s actions as ‘ultra vires,’ ‘illegal,’ or ‘unconstitutional’ does not suffice to

10
plead an ultra vires claim—what matters is whether the facts alleged constitute actions beyond

the governmental actor’s statutory authority, properly construed.” Texas Dep’t of Transp. v.

Sunset Transp., Inc., 357 S.W.3d 691, 702 (Tex. App.—Austin 2011, no pet.).

Analysis

On appeal, the Board Defendants argue that the trial court erred in denying their

plea to the jurisdiction because the pleadings and evidence fail to show that the Board

Defendants committed an ultra vires act. In response to the plea to the jurisdiction, and now on

appeal, Dr. Van Boven contends, in part, that his suit alleges that the Board Defendants

committed ultra vires acts when they “failed to perform their ministerial task of submitting a

Void Report to the [NPDB] and thereby informing the medical community and the public that

the temporary sanction imposed against Dr. Van Boven has been voided by the [Board’s] Final

Order.” Dr. Van Boven emphasizes that the NPDB’s published guidance provides that a Void

Report is appropriate when an “action [is] overturned on appeal” and that, in his view, the plain

language and legal effect of the Board’s Final Order is that the temporary restriction previously

imposed by the three-member panel was overturned on appeal by the ALJ.

Conversely, the Board Defendants argue that the Board did not have a ministerial

duty to submit a Void Report following the issuance of the Final Order and point to NPDB’s

published guidance—in particular, the following statement:

Summary or Emergency Suspension and Other Nonfinal Actions

The requirements for reporting State licensure and certification actions are not
limited to final actions. Interim and nonfinal adverse actions taken by a State
licensing or certification authority also must be reported to the NPDB. Examples
of such actions include a State’s summary or emergency suspension of a license.
. . . Once a final action is taken that supersedes or modifies the initial action, the

11
 State licensing or certification authority must submit a Revision-to-Action Report.

The Board Defendants reason that the Final Order only superseded or modified Dr. Van Boven’s

previously ordered temporary suspension and that under the NPDB’s published guidance, the

term “overturned on appeal” is limited to situations where an action is overturned by a judicial

decision, which did not occur here.

The parties dedicate much of their appellate briefing to the issue of whether the

Board’s decision to submit a Revision-to-Action Report was a correct decision and in accordance

with NPDB rules and published guidance. However, the fact that Dr. Van Boven disagrees with

the Board’s interpretation of NPDB rules and published guidance does not mean that the Board

acted ultra vires in applying that interpretation. See LMV-AL Ventures, 520 S.W.3d at 126. A

cognizable ultra vires claim must challenge the government official’s authority to decide, not

whether the official made an incorrect decision. Honors Acad., Inc. v. Texas Educ. Agency,

555 S.W.3d 54, 68 (Tex. 2018) (“‘Ultra vires claims depend on the scope of the state official’s

authority,’ not the quality of the official’s decision.” (quoting McRaven, 508 S.W.3d at 238)).

“It is not an ultra vires act for an official to make an erroneous decision within the authority

granted.” Id. at 68; see Houston Belt, 487 S.W.3d at 158 (“[W]hether a suit attacking an exercise

of limited discretion will be barred is dependent upon the grant of authority at issue in any

particular case.”). Therefore, we begin our analysis of Dr. Van Boven’s claims by determining

the scope of the Board’s authority as it relates to NPDB-reporting requirements. That is, we

examine what discretion, if any, the Board Defendants had to report to the NPDB the Final

Order dismissing the Board’s disciplinary action against Dr. Van Boven by filing a Revision-to-

Action Report.

12
 The issue presented here is similar to that presented in Hall v. McRaven,

508 S.W.3d at 234-42. In McRaven, a regent for the University of Texas System sued Chancellor

William McRaven for refusing to grant the regent access to records containing student-

admissions information. Id. at 234. McRaven asserted that the records were protected from

disclosure under the Family Educational Rights and Privacy Act (FERPA). Id. at 236; see

generally 20 U.S.C. § 1232g (FERPA). On appeal, the Texas Supreme Court considered, in part,

“whether McRaven’s alleged misinterpretation of [FERPA] constitute[d] an ultra vires act.”

McRaven, 508 S.W.3d at 240-41. The Supreme Court began its jurisdictional analysis by

examining the scope of McRaven’s enabling authority, which the court emphasized was supplied

by a rule adopted by the Regents and not by FERPA—a federal law “collateral to McRaven’s

authority.” Id. at 242. This rule stated that “the Chancellor, in consultation with the U.T. System

General Counsel, shall determine whether State or federal law restricts compliance with the

request [and] shall determine whether a Regent may review information that is protected by

[FERPA].” Id. at 236. Based on this broad and otherwise unconstrained authority, the court

concluded that Hall’s complaint regarding McRaven’s exercise of his discretion to interpret and

apply FERPA failed to establish a valid ultra vires claim. Id. at 243. “When the ultimate and

unrestrained objective of an official’s duty is to interpret collateral law, a misinterpretation is not

overstepping such authority; it is a compliant action even if ultimately erroneous.” Id. at 242.

Here, in Chapter 164 of the Occupations Code, the Legislature has granted the

Board the exclusive authority to discipline medical license holders and has set the parameters of

that authority. See Tex. Occ. Code §§ 164.001-.206. In part, the Occupations Code requires that

the Board report any disciplinary action taken against a physician to “the United States Secretary

of Health and Human Services.” Id. § 164.060. The Code does not place any ministerial duty on

13
the Board with respect to what or how it must report to the NPDB—only that it must report “any

disciplinary action,” which the undisputed facts show that the Board did here. Similarly, the

Legislature has not imposed any express limitation on the Board’s authority to report to the

NPDB and has not placed any constraint on the Board in determining how and what information

it must report. Effectively, the Legislature has tasked the Board with interpreting and applying

federal law in carrying out its statutory duty to report disciplinary actions to the NPDB.7

Therefore, we conclude that the Board did not have a ministerial duty to submit a Void Report to

the NPDB under its enabling authority, and to the extent Dr. Van Boven complains that the

Board exceeded its legal authority by misinterpreting and misapplying collateral federal law

(namely, the Health Care Quality Improvement Act, NPDB rules, and NPDB published

guidance), he has failed to allege a valid ultra vires claim. See McRaven, 508 S.W.3d at 242.

On appeal, Dr. Van Boven argues that McRaven is not dispositive of his suit

because his ultra vires claims are based on more than just allegations that the Board failed to

comply with a ministerial duty under NPDB rules and guidance to submit a Void Report.

Although not entirely clear from his pleadings before the trial court, Dr. Van Boven characterizes

his challenge as including a complaint that the Board’s treatment and representation of the ALJ’s

decision, and its Final Order adopting that decision, as a “reinstatement” of his license or

“modification” of the restriction on his license conflicts “with state law and Board Rules.”

Liberally construing Dr. Van Boven’s pleadings, including his briefing to this Court, we interpret

his claim to be that (1) there is no legal authority under state law that would allow the Board to

7
Similarly, by rule, the Board has provided that it “will report a disciplinary action to the
NPDB according to applicable federal rules and statutes.” 22 Tex. Admin. Code § 187.5 (Texas
Medical Board, National Practitioner Data Bank (NPDB)).

14
construe the Final Order as a “reinstatement” or “modification” of Dr. Van Boven’s previously

restricted license, and (2) by doing so, the Board Defendants have effectively imposed an

adverse or negative sanction on Dr. Van Boven, despite the fact that the Board has no authority

to impose a sanction without an express finding that he committed a punishable violation.8 See,

e.g., Tex. Occ. Code §§ 164.051 (ground for denial or disciplinary action), .052 (prohibited

practices by physician or license applicant), .151-.154 (license reinstatement upon application);

but see id. § 164.007(a-1) (stating that “the board has the sole authority and discretion to

determine the appropriate action or sanction, and the administrative law judge may not make any

recommendation regarding the appropriate action or sanction”).

Based on the relief sought by Dr. Van Boven, we conclude that his allegations

concerning the Board’s treatment of the ALJ’s decision and of the Board’s Final Order fail to

constitute a valid ultra vires claim. In Dr. Van Boven’s view, the ALJ’s decision is equivalent to

a factual determination that Dr. Van Boven did not engage in any sanctionable conduct and that

the temporary restriction should never have been placed on his license, i.e., an exoneration. Dr.

Van Boven reasons that the Board Defendants’ failure to treat the Final Order as anything short

of an exoneration for purposes of NPDB reporting is ultra vires conduct. The only prospective

relief sought by Dr. Van Boven, however, is an injunction and order requiring the Board to

8
In his appellate brief, Dr. Van Boven asserts that “the most significant ultra vires act
occurred when [the Board Defendants] converted a Board Final ‘Decision’ into a ‘Modified’ or
‘Revised Disciplinary Order.’” Second, Dr. Van Boven argues that the Board Defendants
committed an ultra vires act by “portraying the SOAH decision as a ‘Reinstatement’ of Dr. Van
Boven’s License or ‘modified’ Adverse Action/Disciplinary Order to the NPDB.” Third, Dr.
Van Boven complains that the Board Defendants “committed ultra vires acts by asserting that the
Temporary Order imposed an adverse action or negative sanction on Dr. Van Boven despite the
fact that in the end, Dr. Van Boven was not subject to any sanction.”

15
submit a Void Report to the NPDB.9 Therefore, with respect to Dr. Van Boven’s allegations

concerning the Board’s treatment of the Final Order as a “reinstatement” or “modification” of his

license, the question is whether the Board’s decision to submit a Revision-to-Action Report

(and not a Void Report) conflicts with the Board’s enabling authority. See McRaven, 508 S.W.3d

at 242 (noting that question was “whether McRaven’s allegedly mistaken interpretation of

collateral law was nevertheless in violation of his enabling authority”). Absent a clear limitation

in the Occupations Code on the Board’s authority to determine the legal effect of the Final Order

as it relates to NPDB reporting requirements, we cannot conclude Dr. Van Boven has asserted a

valid ultra vires claim based on the Board’s decision to treat the Final Order as a “reinstatement.”

Id. (explaining that unlike defendant’s determination in Houston Belt, which was “subject to

explicit constraints,” McRaven’s “allegedly mistaken interpretation of collateral law” was not

in violation of his enabling authority because no constraint was placed on his discretion to

determine FERPA protections). Dr. Van Boven has not cited, and we have not found, any such

statutory constraint.

Finally, in his cross-appeal, Dr. Van Boven contends that the trial court erred in

granting the plea to the jurisdiction with respect to two Board Defendants, Swanholm and

Palazola, both of whom are staff attorneys for the Board but are not Board members or officers.

9
Dr. Van Boven also seeks a declaration that the Board’s Final Order “constitutes an
overturning of its Initial Action/Order based on internal challenge/appeal before SOAH and that
the Defendants should have issued a Void Report rather than a Revised Report to the NPDB.”
Because this relief is not prospective in nature, it does not support Dr. Van Boven’s ultra vires
claim. See City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009) (explaining that ultra
vires claims are limited to prospective relief); see also Delk v. Lehmberg, No. 03-12-00678-CV,
2014 Tex. App. LEXIS 5033, at *2 (Tex. App.—Austin May 9, 2014, no pet.) (mem. op.)
(concluding that “while a request for declaratory relief may support an ultra vires action,”
declaration that defendants violated the constitution in past was “purely retrospective in nature”
and barred by sovereign immunity).

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Dr. Van Boven argues in his cross-appellant’s brief that his ultra vires suit includes allegations

that Swanholm and Palazola engaged in a variety of ultra vires acts in their handling of the

patient complaints and that these acts led to the hearing before the disciplinary panel and the

temporary restriction placed on his license. See Tex. Occ. Code § 164.059. Similarly, in his

appellant’s brief, Dr. Van Boven also cites to a laundry list of actions taken by the other Board

Defendants prior to the ALJ’s decision that, in his view, constitute ultra vires acts in the

investigation and prosecution of the claims in the underlying disciplinary proceedings against

him. For example, Dr. Van Boven alleges that Board staff failed to investigate or refer

allegations of unlawful bad-faith reporting; that Board staff falsely asserted that Dr. Van Boven

met criteria demonstrating that he posed a “continuing threat to the public health and welfare”;

that he was denied the right to present exculpatory evidence and to present photographic

materials; and that staff engaged in “prosecutorial misconduct” and “witness tampering.”

Not all of the allegations that Dr. Van Boven makes now concerning wrongdoing

in the underlying disciplinary proceedings appear in his live pleadings, but even if they did and

we were to accept them as true, we would conclude that they fail to constitute a cognizable ultra

vires claim. These allegations relate to and question the validity of the temporary-restriction

order, the ALJ’s decision, and the Final Order. Dr. Van Boven does not seek any specific relief

from these orders and decision, and he does not seek any relief from Swanholm or Palazola.

Moreover, Dr. Van Boven does not explain, and we fail to see, what prospective equitable

relief would be available in this suit based on these past acts. See City of Arlington v. Randall,

301 S.W.3d 896, 907 (Tex. App.—Fort Worth 2009, pet. denied) (explaining that city was

immune from “a suit seeking imposition of an affirmative duty based on a past alleged actionable

wrong”) disapproved of on other grounds by Texas Dep’t of Aging and Disability Servs. v.

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Cannon, 453 S.W.3d 411 (Tex. 2015); see also Heinrich, 284 S.W.3d at 373-74 (explaining that

even if ultra vires claim may be brought, “the remedy may implicate immunity”).

Dr. Van Boven challenges the Board’s decision to submit a Revision-to-Action

report, contending not just that the decision was erroneous but that it was intentionally vindictive

and damaging to his professional reputation. Nevertheless, his pleadings fail to show that it was

outside the scope of the Board’s authority to make such a decision, regardless of motive. We

conclude that Dr. Van Boven has failed to plead a valid ultra vires claim and, in addition, that the

facts pleaded affirmatively show that the trial court lacks subject-matter jurisdiction over

Dr. Van Boven’s suit. See Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007)

(pleader should only be given opportunity to replead “if it is possible to cure the pleading

defect”); Creedmoor-Maha, 307 S.W.3d at 526 (court should not allow party to replead if

alleged facts affirmatively negate jurisdiction). The trial court erred to the extent it denied the

Board Defendants’ plea to the jurisdiction. Conversely, the trial court did not err to the extent it

granted the Board Defendants’ plea to the jurisdiction.10

CONCLUSION

To the extent the trial court’s order granted the plea to the jurisdiction to

Swanholm and Palazola, we affirm the trial court’s order. To the extent the trial court’s order

denied the plea to the jurisdiction as to the remaining Board Defendants, we reverse the order

and render judgment dismissing Dr. Van Boven’s claims against those defendants.

10
Because we conclude that the trial court lacked subject-matter jurisdiction over
Dr. Van Boven’s suit, we need not decide whether the trial court erred in denying his request for
temporary injunctive relief, the other issue raised in his cross-appeal. See Tex. R. App. P. 47.1.

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 __________________________________________
Chari L. Kelly, Justice

Before Justices Goodwin, Baker, and Kelly

Affirmed in Part; Reversed and Rendered in Part

Filed: January 9, 2020

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