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

ACCEPTED
03-14-00644-CV
4422882
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/9/2015 2:26:40 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00644-CV

FILED IN
3rd COURT OF APPEALS
__________________________________________________________________
AUSTIN, TEXAS
3/9/2015 2:26:40 PM
IN THE THIRD COURT OF APPEALS JEFFREY D. KYLE
AUSTIN, TEXAS Clerk

JOSE A. PEREZ

Appellant

Vs.

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

Appellees.

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

Appellant’s Amended Initial Brief

Jose A. Perez
34 Candle Pine Place
The Woodlands, TX 77381
theaesculapius@gmail.com
281-673-0452

Oral Argument Waived

1
 Identity of Parties and Counsel

Appellant/Plaintiff

Jose A. Perez, Proceeding pro se

Appellees/Defendants

Texas Medical Board

Mari Robinson, executive director, in her Official Capacity

Counsel for Appellees

Ted A Ross, Esq
Assistant Attorney General
PO Box 12548
Austin, TX 78711-2548

2
 TABLE OF CONTENTS

Identity of Parties and Counsel..................................................................................2

Table of Contents.......................................................................................................3

Index of Authorities...................................................................................................3

Statement of the Case .............................................................................................16

Issues Presented ......................................................................................................16

Statement of Facts.................................................................................................. 17

Summary of the Argument .....................................................................................18

Argument ................................................................................................................23

Standard of Review……………………………………………………………….22

Prayer ......................................................................................................................59

Certificate of Service ..............................................................................................59

Tex R. App. P. 9.4(i)(3) Certificate of Compliance………………………………60

Index Of Authorities

Cases

A.R. Logan v. The State,
5 Texas Court Of Appeals 306 (Tyler-1878)………………………………27, 33

Aguilar v. Frias,
366 SW 3d 271, 273 (Tex. App.—El Paso 2012)……………………………49, 50

Alabama v. White,
496 US 325, 328-331 (1990)……………………………………………………36
3
Allison v. Nat'l Union Fire Ins. Co.,
703 SW 2d 637, 638 (Tex. 1986) (per curiam)……………………………….41

Austin Chevrolet, Inc. v. Motor Vehicle Bd.,
212 S.W.3d 425, 438 (Tex. App.-Austin 2006, pet. denied)……………………39

Bank of Woodson v. Stewart,
632 S.W.2d 950, 956 (Tex. App.-Austin 1982),
dism'd as moot, 641 S.W.2d 230 (Tex. 1982)…………………………………..26

Barber v. Texas Dept. of Transportation,
49 S.W.3d 12 (Tex.App. Dist.3 04/05/2001)……………………………30, 32, 46

Bay City Federal Savings and Loan Ass'n. v. Lewis,
474 SW 2d 459 (Tex. 1971)………………………………………………34, 54

Black v. 7-Eleven Convenience Stores,
03-12-00014-CV, 03-12-00015-CV (Tex.App. Dist.3 03/07/2014)……………29

Bounds v. Smith,
430 US 817, (1977)……………………………………………………………57

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)…………………………………………………….48

City of Houston v. Johnny Frank's Auto Parts,
480 SW 2d 774 (14th DCA- 1972, writ ref'd n.r.e.)………………...29, 30, 32, 46

Childs v. Weis,
440 S.W.2d 104, 107 (Tex. Civ. App.--Dallas 1969, no writ)………………….37

CHCA E. Houston, L.P. v. Henderson,
99 SW 3d 630, 633 (Tex. App.-Houston [14th Dist.] 2003, no pet.)…………...40

City of Dallas v. Heather Stewart,
No. 09-0257 (Tex. 01/27/2012)…………………………………………………56

4
City of El Paso v. Heinrich,
284 S.W.3d 366, 370-74 (Tex. 2009)…………………………………………..50

City of Monterey v. Del Monte Dunes at Monterey,
526 U.S. 687, (U.S. 05/24/1999)………………………………………………53

City of Sherman v. Pub. Utility Comm'n of Texas,
643 SW 2d 681, 686 (Tex. 1983)……………………………………………….39

Chicago, B & Q.R. Co. v. Chicago
166 U.S. 226 (1897)…………………………………………………………….51

Cleveland Board of Education v. Loudermill.,
470 US 532 , 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985)………………………...29

Cooper v. Tex. Gulf Indus., Inc.,
513 SW 2d 200, 203-04 (Tex. 1974)…………………………………………...41

Combs v. Entertainment Publications, Inc.,
292 S.W.3d 712 (Tex.App. Dist.3 06/12/2009)…………………………………39

Conner v. Johnson,
No. 2-03-316-CV (Tex. App. Dist.2 10/28/2004)…………………………..31, 32

Continental Casualty Insurance Co. v. Functional Restoration Associates,
19 S.W.3d 393, 19 S.W.3d 393 (Tex. 04/06/2000)……………………………..26

Christopher v. Harbury,
536 US 403 (2002)……………………………………………………………….57

Club Retro LLC v. Hilton,
568 F.3d 181 (5th Cir. 05/06/2009)…………………………………………….36

Cypress-Fairbanks Indep. Sch. Dist. v. Texas Educ. Agency,
797 S.W.2d 336, 342-43 (Tex. App.-Austin 1990)……………………………..42

Dent v. State of W. Va.,
129 US 114, 121-22 (1889)……………………………………………………..44

5
Downing v. Brown,
935 SW 2d 112, 114 (Tex. 1996)………………………………………………..31

Dubai Petroleum Co. v. Kazi,
12 S.W.3d 71, 75 (Tex. 2000)………………………………………………………………….31

ElderCare Properties, Inc. v. Texas Department of Human Services,
63 S.W.3d 551 (Tex. App. Dist.3 12/06/2001)………………………………….25

El Paso Hosp. Dist. v. Texas Health & Human Servs. Comm'n,
247 S.W.3d 709 (Tex. 2008)……………………………………………………38

Ex parte Abell,
613 S.W.2d 255, 260 (Tex. 1981)…………………………………………...30, 43

Flores v. Employees Retirement Sys. of Tex.,
74 S.W.3d 532 (Tex. App.-Austin 2002, pet. denied)……………………….….39

Francisco v. Board of Dental Examiners,
149 S.W.2d 619, 622 (Tex. Civ. App. -- Austin 1941, writ ref'd)………………29

Freeman v. City of Dallas,
242 F.3d 642, 647 n.5 (5th Cir. 2001) (en banc)

G.C. & S.F. Ry. Co. v. Fuller,
63 Tex. 467, 469 (1885)…………………………………………………………49

General Servs. Comm'n v. Little-Tex Insulation Co.,
39 SW 3d 591, 599 (Tex. 2001)………………………………………………..39

Gibson v. Texas Municipal Retirement System,
683 SW 2d 882 (Tex. App.--Austin 1985, no writ)……………………….34, 54

Gutierrez v. Laredo Independent School Dist.,
139 S.W.3d 363 (Tex.App. 05/12/2004)………………………………………..42

Griffin v. Hawn,
341 SW 2d 151, 152 (Tex. 1960)………………………………………………47

6
Hamilton v. Washington,
NO. 03-11-00594-CV (3rd DCA - December 23, 2014)………………………...38

Harris County v. Sykes,
136 S.W.3d 635 (Tex. 05/28/2004)………………………………………………45

Heck v. Humphrey,
512 U. S. 477, 483 (1994)……………………………………………………….53

Holland St. John, M.D v. Marty Howard Pope and Sally Bates Pope,
901 S.W.2d 420 (Tex. 06/08/1995)……………………………………………..37

Hull v. Texas State Board Public Accountancy,
434 SW 2d 387 (Tx App. – Houston- (11/06/68)……………………………….28

In Re Clifford Hall,
NO. 14-14-00062-CV , (14th DCA - May 28, 2014)………………………40, 41

Industrial Accident Bd. v. O'Dowd,
303 S.W.2d 763 (Tex. 1957)……………………………………………………44

In re State Bd. for Educator Certification,
No. 13-0537, (Tex. Dec. 19, 2014)……………………………………………...26

In re Texas Medical Board, 315 S.W.3d 177
(Tex.App. Dist.6 06/01/2010)………………………………………………….35

Jackson v. Procunier,
789 F.2d 307 (5th Cir. 05/09/1986)……………………………………………57

Jones v. Ross,
173 S.W.2d 1022, 1024 (Tex. 1943)……………………………………………26

Kadrmas v. Dickinson Public Schools,
487 U.S. 450, 456-457 (1988)…………………………………………………..29

Katz v. United States,
389 US 347 , 351 (1967)……………………………………………………….36

7
Ker v. California,
374 U.S. 23, 30, 83 S.Ct. 1623, 1628 (1963)……………………………………..52

Kent , et al, v Dulles,
357 US 116 (U.S. 06/16/1958)……………………………………………………49

Kentucky v. Graham,
473 U.S. 159, 165 (1985)……………………………………………………49, 50

Kobza v. Kutac,
109 S.W.3d 89 (Tex.App. Dist.3 05/30/2003)…………………………………..31

Kodiak Resources, Inc. v. Smith,
No. 09-10-00362-CV (Tex.App. Dist.9 02/16/2012)……………………….41. 45

Land O'Lakes Creameries v. La. State Bd. of Health,
160 F. Supp. 387, 388 (E.D. La. 1958)……………………………………………25

Latham v. Security Insurance Co. of Hartford,
491 SW 2d 100 (Tex. 1972)…………………………………………………….28

Lopez v. Aziz,
852 S.W.2d 303, 306 (Tex. App.--San Antonio 1993, no writ)………………...37

Lucas v. South Carolina Coastal Council,
505 US 1003, 1019 (1992)…………………………………………………...47, 51

Lynch v. United States,
292 U.S. 571 (1934)…………………………………………………………….49

Mann v. Texas State Board Medical Examiners ,
403 SW 2d 218 (Texas Appellate Austin)
affirmed 413 S.W.2d 382, (03/29/67)……………………………………26, 27, 34

Mapp v. Ohio,
367 US 643 , 367 US 643, 655 (1961)…………………………………………36

Marino v. King,
355 SW 3d 629,634 (Tex. 2011)………………………………………………….57

8
Marshall v. Barlow's, Inc.,
436 US 307(1978)……………………………………………………………….36

Middletown v. Texas Power & Light Co.,
185 S.W. 556, 560 (Tex. 1916)……………………………………………26, 43

Milestone Operating, Inc. v. ExxonMobil Corp.,
388 SW 3d 307, 310 (Tex. 2012)………………………………………………57

McCain v. Yost,
284 S.W.2d 898, 900 (Tex. 1955)…………………………………………….30, 43

McCarthy v. Madigan,
503 US 140, 146-48 (1992)…………………………………………………….32

Middletown v. Texas Power & Light Co.,
185 S.W. 556, 560 (Tex. 1916)

Mitz v. Texas State Board of Veterinary Medical Examiners,
278 S.W.3d 17 (Tex.App. Dist.3 11/14/2008)………………………………32, 38

Nautilus , Inc. v Biosig Instruments, Inc.
No. 13-369 (US Supreme Court - June 2, 2014)……………………………….49

Newman v. Bryan,
06-13-00063-CV (Tex.App. Dist.6 10/09/2013)……………………………49, 50

Patel, et al v. Texas Department of Licensing and Regulation,
No. 03-11-00057-CV (Tex.App. Dist.3 07/25/2012)…………………………..23

Paul v. Davis,
424 US 693, 710-11 (1976)…………………………………………………….29

Payne v. Texas State Board of Medical Examiners,
No. 03-07-00558-CV (Tex.App. Dist.3 03/12/2009)…………………………...39

Pennsylvania Coal Co. v. Mahon,
260 US 393 (1922)………………………………………………………………49

9
Presley v. City of Charlottesville,
464 F.3d 480, 487 (4th Cir. 2006)………………………………………………..52

Railroad Commission of Texas v. WBD Oil & Gas Co.,
104 S.W.3d 69 (Tex. 02/13/2003)………………………………………………..34

Railroad Comm'n v. ARCO Oil & Gas Co.,
876 SW 2d 473, 478 (Tex. App.-Austin 1994, writ denied)……………………42

Rector v. Texas Alcoholic Beverage Commission,
599 S.W.2d 800, (Tex. 1980)……………………………………………………35

Renault v City of Houston ,
415 S.W.2d 948 (10th DCA- 05/18/67)…………………………………………49

Robinson v. Crown Cork & Seal Co.,
335 SW 3d 126, 147 (Tex. 2010)………………………………………….27, 30

Salas v. Gamboa,
760 S.W.2d 838, 840 (Tex.App.--San Antonio 1988, no writ)………………….37

San Antonio River Authority v. Garrett Brothers,
528 SW 266, 273 (Tex. Civ. App.--San Antonio 1975, writ ref'd n.r.e.)………48

San Remo Hotel, L.P. v. City & Cnty. of S.F., Cal.,
545 US 323, 346 (2005)………………………………………………………52

Satterfield v. Crown Cork & Seal Co., Inc.,
268 S.W.3d 190 (Tex. App. Dist.3 08/29/2008)………………………………...26

Sierra Club v. Tex. Natural Res. Conservation Comm'n,
26 SW 3d 684, 688 (Tex. App.-Austin 2000)…………………………………..41

Scott v. Texas State Board of Medical Examiners,
384 S.W.2d 686, 690 (Tex. Sup. 1964)……………………………..26, 28, 29, 34

Scott v. Presidio I.S.D.,
266 S.W.3d 531 (Tex.App. Dist.3 08/28/2008)…………………………………40

10
Severance v. Patterson,
566 F.3d 490 (5th Cir. 04/23/2009)…………………………………………52, 53

Sholdra v. Bluebonnet Sav. Bank, FSB,
858 SW 2d 533, 535 (Tex. App.-Fort Worth 1993, writ denied)………………54

Smith v Tarrant County Bail Bond Board,
997 SW 2d 870 (Tex App Dist 2 – 1999)……………………………………….24

Soldal v. Cook County,
506 U.S. 56, 61, 113 S.Ct. 538, 543 (1992)……………………………………...52

Spann v. City of Dallas,
235 S.W. 513 (1921)…………………………………………………29, 30, 32, 46

State Bd. of Medical Examiners v. Mann,
413 S.W.2d 382, (Tex. 1967)…………………………………………………..28

State ex rel Caldwell v. Allstate Insurance Co.,
536 F.3d 418 (5th Cir. 07/18/2008)……………………………………………..25

State v. Hale,
146 SW 2d 731 (Tex. 1941)………………………………………………………47

State v. Holland,
221 S.W.3d 639, 643 (Tex. 2007)…………………………………………49, 51

State v. Thomas,
766 SW 2d 217, 220 (Tex. 1989)………………………………………………..26

State v. Woodard,
341 SW 3d 404, 411 (Tex. Crim. App. 2011)…………………………………...36

Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection,
No. 08-1151 (U.S. 06/17/2010)……………………………………………..47, 51

Subaru of Am., Inc. v. David McDavid Nissan, Inc.
84 S.W.3d 212, 219 (Tex. 2002)……………………………………………36, 43

11
Swilley v. McCain,
374 S.W.2d 871 (Tex. 1964)……………………………………………………29

Tatro v. Texas,
703 F.2d 823, 832 (5th Cir. 1983)………………………………………………26

Terry v. Ohio,
392 US 1, 22 (1968)……………………………………………………………36

Texas Alcoholic Beverage Commission, v. American Legion
NO. 03-11-00703-CV (3rd DCA- May 16, 2014)……………………………….23

Tex. Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist.,
830 SW 2d 88, 90 FN3 (Tex. 1992)…………………………………………….42

Texas Educ. Agency v. Leeper,
893 S.W.2d 432, 443 (Tex. 1994)………………………………………………39

Texas Comptroller of Public Accounts v. Walker Electric Company, et al ,
NO. 03-13-00285-CV (3rd DCA- November 21, 2014)………………………...22

Texas Department of Public Safety v. Caitlin Elizabeth Adkins,
No. 11-10-00298-CV; (Tex.App. Dist.11 08/16/2012)………………………...36

Texas Dep't of State Health Servs. v. Balquinta,
429 SW 3d 726, 747 (Tex. App-Austin 2014, pet. filed)…………………32, 39

Tex. Dep't of Parks & Wildlife v. Miranda,
133 SW 3d 217, 227 (Tex. 2004)………………………………….22, 49, 50, 51

Texas Parks and Wildlife Department v. the Sawyer Trust,
No. 07-0945 (Tex. 08/26/2011) ………………………………………………...50

Texas Logos, L.P. v. Texas Dep't of Transp.,
241 S.W.3d 105 (Tex. App.-Austin 2007, no pet.)……………………………...39

Texas State Board Medical Examiners v. Haney ,
472 S.W.2d 550 (Tx App –Austin - (10/27/71)………………………………...28

12
Texas State Bd. of Pharm. v. Walgreen Tex. Co.,
520 SW 2d 845 (Tex. App.--Austin 1975, writ ref'd n.r.e.)……………………32

Texas State Board of Pharmacy v Witcher,
447 SW 3d 520 (3rd DCA- October 31, 2014)………………………………….38

Texas Vending Comm. v. Headquarters Corp.,
505 SW 2d 402 (Tex. Civ. App. – Austin - 1974, writ ref'd n.r.e.)……………..29

Tex. Workers' Comp. Comm'n v. Garcia,
893 SW 2d 504, 521 (Tex. 1995)………………………………………………...58

Town of Nags Head v. Toloczko,
12-1537 (4th Cir. 08/27/2013)……………………………………………………52

The State v James A. Goldman,
44 Tex. 104 (1875)………………………………………………………….27, 33

Travelers Ins. Co. v. Marshall,
76 S.W.2d 1007, 1011-12 (Tex. 1934)………………………………………….26

Travelers Ins. Co. v. Joachim,
315 SW 3d 860, 862 (Tex. 2010)……………………………………………55

Trevino v. State,
03-12-00060-CV (Tex.App. Dist.3 08/07/2013)………………………………..45

United States v. Johnson,
319 US 302, 304 (1943)………………………………………………………...25

United States v. Jacobsen,
466 U.S. 109, 113, 104 S.Ct. 1652, (1984)……………………………………….52

United States v. James Daniel Good Real Property,
510 U.S. 43, 49-50, 114 S.Ct. 492, 499 (1993)…………………………………...52

United States v. Jones,
132 S.Ct. 945, 181 L.Ed.2d 911 (U.S. 01/23/2012)…………………………….36

13
Univ. of Tex. Sw. Med. Ctr. at Dall. v. Loutzenhiser,
140 SW 3d 351, 358 (Tex. 2004)……………………………………………...57

Vartelas v. Holder,
132 S.Ct. 1479 (U.S. 03/28/2012)………………………………………………30

Waller v. State,
68 S.W. 2d 601, 605 (Tex. Civ. App. -- Amarillo 1934, writ ref'd)……………29

Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City,
473 U.S. 172, (1985)…………………………………………………………….51

Wolff v. McDonnell,
418 US 539, 559 (1974)………………………………………………………35

Young v. the State of Texas,
No. 14-10-00646-CR (Tex. App. Dist.14 01/10/2012)…………………………42

Zenith Star Ins. Co. v. Wilkerson,
150 S.W.3d 525, 533 (Tex. App.--Austin 2004, no pet.)……………………….40

Zimmer v. Miller Trucking Co.,
743 F.2d 601 (8th Cir. 09/13/1984)……………………………………………….45

US Constitution

Amend IV……………………………………………………………..28, 36, 52

Amend V………………………………………………………………………53

Amend. XIV…………………………………………………………..25, 29, 58

Ex Post Facto Clause U.S. Const.. art. I, ' 10 Cl 1………………………...30, 42

Contract Clause………………………………………………………………..30

US Statutes

28 USC 1653…………………………………………………………………..56
14
42 USC 1983………………………………………………………………….49, 50

Texas Constitution

Article 1 , § 9………………………………………………………………28, 36

Art. I, § 19……………………………………………………………..25, 29, 58

Art. 17, § 1………………………………………………………………26, 47

Art. XVI, § 31…………………………………………………………27, 33, 35

Art. II, § 1……………………………………………………………………...26

Article I, § 16…………………………………………………………...30, 36, 42

Separation of Powers Doctrine………………………………………………….27

Texas Statutes

Medical Practice Act , Art 4501……………………………………………..26

Medical Board Rule §187.27………………………………………………...38

Medical Board Rule §185.17(3)……………………………………………38

Medical Board Rule §185.17(9)……………………………………………38

Medical Board Rule §187.27(b)(3)(C)………………………………………38

Administrative Procedure Act (APA)…………………………………………32

Texas Occupation Code Sect. 204.051……………………………………..24, 43

Texas Occupation Code Sect. 204.001………………………………………...43

Texas Occupational Code § 164.007(c)………………………………………..35

Administrative Code , Title 22, Part 9, Chapter 185……………………………24
15
 Administrative Code , Title 22, Part 9, Chapter 190……………………………43

Texas Government Code

§
2001.171…………………………………………………………………………..55
§ 2003.001(4) (A)………………………………………………………24, 43
§ 2001.003 (7)………………………………………………………………24
§ 2001.003(6)……………………………………………………………….24
§ 2001.141…………………………………………………………………34
§ 2001.035(a)………………………………………………………………38
§ 2001.038…………………………………………………………….. 39, 40
§ 2001.176(b)(2)…………………………………………………………..41

Health & Safety Code § 12.001…………………………………………..44

Texas Rules of Evidence

Tex. R. Evid. 803(24)……………………………………………………….31, 32

Miscellaneous

12 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 3522 (1984)………………………………46

Texas Register, Volume 15, Number 65,
Pages 4941 , August 24, 1990………………………………………….35

Cooley, Const. Lim. 248…………………………………………………………..31

Texas Medical Board Agency Strategic Plan - Fiscal Years 2009-2013……….23

61 Am. Jur. 2d Physicians and Surgeons § 14, 158……………………………..37

16
 STATEMENT OF THE CASE

(a) Petition to quash an administrative order
(b) Inverse Condemnation Proceedings
(c) Federal Takings/Seizure of property Claim
(d) Ultra vires claim – defendant Marie Robinson
(e) Declaratory judgment and complaint for compensatory and punitive
damages

Trial Court

The Honorable Darlene Byrne
53rd Judicial District

Course of Proceedings

The Case was dismissed pursuant to Defendants’ Plea to the Jurisdiction

Trial Court Disposition

Cause of Action dismissed. All relief denied

ISSUES PRESENTED

The District Court granted the defendants’ plea to the jurisdiction.

1- The Defendants waived sovereign immunity pursuant to Article I, Section 17
of the Texas Constitution;
2- The Defendants waived sovereign immunity pursuant to the US
Constitution Fourth, Fifth and Fourteenth Amendments;
3- The Defendants waived immunity pursuant to Section 2001.038 of the
Administrative Procedures Act;
4- The trial court erred in dismissing Mr. Perez’ ultra vires claim against
Defendant Mari Robinson, JD , in her official capacity;
5- The District Court has jurisdiction over Defendant Marie Robinson in her
individual capacity within the meaning of 42 USC 1983
6- The District Court erred in concluding that the Defendants could penalize
Mr. Perez pursuant to default procedures
7- The District Court erred in concluding that the Defendants could penalize
Mr. Perez using laws adopted after 1994.
17
 STATEMENT REGARDING ORAL ARGUMENT

Mr. Perez waives Oral Argument .

STATEMENT OF FACTS

Mr. Perez has a right to be gainfully employed as a physician Assistant

since September 22nd, 19941. On April 17th, 2014 Mr. Perez’ Supervising

Physician , Rafael J. de la Flor-Weiss, MD, informed Mr. Perez that agents

acting under the direction of the defendants informed Doctor dela Flor-

Weiss that Mr. Perez’ license had been revoked and directed him to escort

Mr. Perez away from the clinic2. The Defendants have never found that

abridgement of his right to be gainfully employed as a physician assistant

was necessary for the preservation of the health, safety, and welfare of the

public3. The Defendants have informed Mr. Perez that he was deprived of

his right to earn a living because he failed to participate in an administrative

proceeding 4.

1
Record on Appeal (ROA) Vol 1 of 2, p5, item 1
2
ROA , Vol 1 of 2, p. 4, item 1; ROA p 174, Defendants Brief in support of their first amended
plea to the jurisdiction p1
3
ROA, Vol 1 of 2 p. 144 , item #8
4
ROA p.4, Vol 1 of 2, item #3
18
 On April 17th, 2014 Mr. Perez was deprived of all economical beneficial

use of his property. Mr. Perez right to work as a physician assistant was

seized by the defendants on April 17th, 20145.

Mr. Perez has never signed any document nor agreed in any way , fashion

or form to waive any federal, state or common law right. Specifically he has

not (a) waived his state right to jury trial at a district court ; (b) waived the

Fourteenth Amendment right to the preponderance of evidence standard of

proof © waived his Fourth Amendment rights; (d) waived his right to

confront and cross examine adverse witness; (e) waived his rights pursuant

to Texas Constitution Article XVI, Section 31, (f) waived his right to object

to ex post facto laws; (g) waived his right to decide when and with whom he

would enter into a patient-physician assistant relationship ; (h) waived his

rights pursuant to the common law respondeat superior doctrine6.

RECORD ON APPEAL

The Clerk of Court filed a 184 pages document entitled “Clerk’s Record”,

Vol 1 of 1 on November 14th, 2014. The Clerk of Court also filed a 100

pages document entitled “Clerk’s Record” , Vol 1 of 1 on February 13th,

5
ROA p 4, Vol1 of 2, item 1; ROA, Vol.1 of 2 p. 143 , item 1
6
ROA , Vol 1 of 2, p 10, item # 23
19
2015. Mr. Perez has designated the November 14th, 2014 set of documents as

Vol 1 of 2, and the February 13th, 2015 document as Vol 2 of 2.

SUMMARY OF THE ARGUMENT

(a) The trial court was required to give effect to the intent of the 1876

voters.

(b) The trial court was supposed to abide by Supreme Court precedents;

(c) Defendants waived sovereign immunity pursuant to Article I, Section

17 of the Texas Constitution and pursuant to US Constitution Fourth,

Fifth and Fourteenth Amendments; it also waived immunity pursuant

to Section 2001.038 of the Administrative Procedures Act.

(d) Failure to sue an essential party is a non-jurisdictional defect within

the meaning of government code 2001.176 and Rule 39, TRCP;

(e) A federal and state “takings” or seizure of property proceeding

applies to all species of property without exceptions or limitations;

(f) Mr. Perez has a vested common law right to work as a physician

assistant;

(g) A medical license within the meaning of Texas Constitutional law

merely means that the licensee has demonstrated that he graduated

from an accredited University.

20
(h) The Texas Supreme Court has ruled that when a party has received

the degree of “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.”

(i) The government cannot force Mr. Perez to waive his Constitutional

rights in order to work as a physician assistant;

(j) At common law a medical license could only be revoked by the

district court , for cause , in a jury trial, pursuant to the

preponderance of evidence standard;

(k) The trial court ought to have given Mr. Perez leave to amend the

complaint to sue Defendant Marie Robinson in her individual capacity

within the meaning of 42 USC 1983;

(l) The trial court transgressed upon Mr. Perez’ right to adequate,

effective and meaningful access to courts of general jurisdiction;

21
(m) The trial court erred in dismissing Mr. Perez’ ultra vires claim

against Defendant Mari Robinson, JD , in her official capacity;

(n) The trial court erred in not adjudicating whether Mr. Perez’ property

has been taken and/or seized within the meaning of the US

Constitution Fourth and Fifth Amendments;

(o) The trial court erred in admitting into evidence Defendant Exhibit “A”

because , inter alia, the Physician Assistant Board (PAB) has no

authority to revoke Mr. Perez’ right to work as a physician assistant

on a “default basis “ and its failure to disclose underlying facts

constitutes reversible error.

(p) The trial court erred in admitting into evidence Defendants’ exhibit

“B” through “H”;

(q) Mr. Perez respectfully submits that, as to federal claims, he can

amend defective allegations of jurisdiction in the appellate courts

pursuant to 28 USC § 1653.

(r) Mr. Perez respectfully submits that he can amend defective allegations

of jurisdiction in the appellate courts pursuant to Tex. Const. art. I, §

13.The open courts provision of the Texas Constitution provides: "All

courts shall be open and every person for an injury done him, in his

lands, goods, person or reputation, shall have remedy by due course of

22
 law." Tex. Const. art. I, § 13. This requirement "guarantees that a

common law remedy will not be unreasonably abridged.

(s) Mr. Perez respectfully submits that, as to all claims, he can amend

defective allegations of jurisdiction in the appellate courts pursuant to

The Due Process Clauses of the Texas Constitution and the Fourteenth

Amendment to the United States Constitution. In Texas an

adjudication in the merits is preferred.

(t) Mr. Perez respectfully submits that he can amend defective allegations

of jurisdiction in the appellate courts pursuant to Tex. R. App. P. 38.7

and 2.

STANDARD OF REVIEW

Sovereign immunity from suit defeats a trial court’s subject matter

jurisdiction and thus is properly asserted in a plea to the jurisdiction7.

Whether Mr. Perez has alleged facts that demonstrate subject matter

jurisdiction is a question of law8. Accordingly, the Appellate Court reviews

the district court’s order granting Defendants’ pleas to the jurisdiction de

novo9.

7
Tex. Dep't of Parks & Wildlife v. Miranda, 133 SW 3d 217, 227 (Tex. 2004);
8
Id at 226
9
Texas Comptroller of Public Accounts v. Walker Electric Company, et al , NO. 03-13-00285-
CV (3rd DCA- November 21, 2014)
23
 In asserting a plea to the jurisdiction a party contends that an incurable

defect precludes the court’s hearing the case on the merits, even if all

allegations in the pleadings are true10. Thus, the court does not look to the

merits of the Plaintiff’s case in conducting its review, but considers only the

Plaintiff’s pleadings and any evidence submitted by the parties that is

pertinent to the jurisdictional inquiry11. It construes the pleadings liberally in

favor of conferring jurisdiction and looks to the pleader’s intent12 .

ARGUMENT

I

THE TEXAS MEDICAL BOARD IS THE REAL PARTY IN INTEREST

The Defendants claim that Mr. Perez failed to sue the Physician

Assistant Board (PAB) which is , allegedly, the Agency which issued the

Order to revoke his license13. That assertion is meritless14.

The Texas Medical Board is the agency which filed the Complaint in the

State office of Administrative Hearings15.

10
id
11
Patel, et al v. Texas Department of Licensing and Regulation, No. 03-11-00057-CV
(Tex.App. Dist.3 07/25/2012)
12
Texas Alcoholic Beverage Commission, v. American Legion NO. 03-11-00703-CV (3rd DCA-
May 16, 2014)
13
ROA Vol 1 of 2, pp 63-64; Defendants First Amended Plea To The Jurisdiction , P1 ¶ 1.1 (
The Texas Physician Assistant Board issued the Order which revoked his license.)
14
ROA Vol 1 of 2 , pp 72-73
15
Form “Request to Docket Case”, Case Number XXX-XX-XXXX.PA, Appendix Document 4.
24
 The Texas Medical Board has admitted to having the responsibility to

regulate physician assistants and the PAB. In their publication, known as

“Texas Medical Board Agency Strategic Plan - Fiscal Years 2009-201316

they state on page 8 paragraph 1 that :

“Although the Texas Medical Board’s name and identity are based in the
regulation of physicians, the agency regulates multiple licenses related to
health care. Major responsibilities include the Physician Assistant
Board…” (emphasis added)

They go on to state on paragraph 3 that :

“The Texas Medical Board’s statutory responsibilities and authority are
based in 18 chapters of the Occupations Code. The Medical Practice Act,
which governs the regulation of the practice of medicine, includes …..The
Physician Assistant Licensing Act is Chapter 204,. “(emphasis added)

The defendants continue to state on page 8 , paragraph 2 that:

“ TMB currently regulates over 59,000 physicians, 4,215 physician
assistants, ….“(emphasis added)

Consequently, for the reasons stated hereinabove Mr. Perez decision

to sue the Texas Medical Board instead of the Physician Assistant Board

(PAB) was completely and totally proper.

Moreover, the PAB is merely is an advisory Board to the Texas State

Board of Medical Examiners17. The PAB is a subdivision or bureau of the

16
https://www.tmb.state.tx.us/idl/7D87F4DD-5EBB-384B-338B-917DFBDC990A
The document state on page 1 “This document, created and produced in-house at TMB….”
17
Texas Occupation Code Sect. 204.051
25
 Texas Medical Board18.The Texas Administrative Code , Title 22, Part 9

show the state agencies that have statewide jurisdiction19 , the PAB is not

listed there.

The trial courts are required to determine who the real parties in

interest are20. A party is a real party in interest when it is "directly and

personally concerned in the outcome of the litigation to the extent that his

participation therein will insure 'a genuine adversary issue between the

parties21 . The defendants have not, and cannot, present any evidence

showing that the Texas Medical Board is not the real party in interest.

II

SOVEREIGN IMMUNITY DOES
NOT BAR A SUIT TO CHALLENGE OR RESTRAIN
AN AGENCY ORDER OR ACTION THAT IS
BEYOND THE AGENCY’ S CONTITUTIONAL AUTHORITY

Administrative decisions may be attacked in court if they adversely

affect, as here22, a vested property right or otherwise violate some

18
Texas Administrative Code , Title 22, Part 9, Chapter 185
19
Cf. Smith v Tarrant County Bail Bond Board, 997 SW 2d 870 (Tex App Dist 2 – 1999), see
also Texas Government Code 2003.001(4) (A); 2001.003 (7),
20
State ex rel Caldwell v. Allstate Insurance Co., 536 F.3d 418 (5th Cir. 07/18/2008)
21
Id, citing Land O'Lakes Creameries v. La. State Bd. of Health, 160 F. Supp. 387, 388 (E.D.
La. 1958) and United States v. Johnson,319 US 302, 304 (1943)).
22
ROA, Vol 1 of 2, pp 14-17; 24-26; 80-82; 112-113; 118-120; 159-161
26
 provision of the State or Federal Constitution23 The right to challenge

administrative actions by an original action in district court on the basis

that such actions unconstitutionally deprive the plaintiff of a vested

property right is a right to judicial review distinctly different from the

right to judicial review given by a statute24. A vested right is a property or

legal right, which the Constitution protects like any other property25.

The following vested property rights are being adversely affected26:

. The physician assistant profession existed at common law27. At

common law Texans had the right to earn a living practicing medicine

subject only to medical malpractice litigation28. At common law physician

assistants had a right to have the Constitution applied as originally

intended by the voters29 . Specifically at common law, Constitutional

provisos could only be amended pursuant to Constitutional Amendment30.

23
ElderCare Properties, Inc. v. Texas Department of Human Services, 63 S.W.3d 551 (Tex. App.
Dist.3 12/06/2001) citing U.S. Const. amend. XIV; Tex. Const. art. I, § 19;
24
Continental Casualty Insurance Co. v. Functional Restoration Associates, 19 S.W.3d 393, 19
S.W.3d 393 (Tex. 04/06/2000) ; Bank of Woodson v. Stewart, 632 S.W.2d 950, 956 (Tex. App.-
Austin 1982), dism'd as moot, 641 S.W.2d 230 (Tex. 1982);
25
Satterfield v. Crown Cork & Seal Co., Inc., 268 S.W.3d 190 (Tex. App. Dist.3 08/29/2008)
quoting Middletown v. Texas Power & Light Co., 185 S.W. 556, 560 (Tex. 1916).
26
ROA Vol 1 of 2, pp 13-16
27
Tatro v. Texas,703 F.2d 823, 832 (5th Cir. 1983)
28
FN 51
29
ROA Vol 1 of 2 pp 41-42; Jones v. Ross, 173 S.W.2d 1022, 1024 (Tex. 1943); see also
Travelers Ins. Co. v. Marshall, 76 S.W.2d 1007, 1011-12 (Tex. 1934) (meaning of constitution
does not change with circumstances to make a different rule in a case seem desirable).
30
State v. Thomas, 766 SW 2d 217, 220 (Tex. 1989) ; Texas Constitution Article 17, § 1
27
 At common law, only the district courts could revoke the right to

Practice a profession pursuant to the Medical Practice Act31 and the

Separation of Powers Doctrine32.

At common law a “certificate of qualification or “license” meant that

the practitioner graduated from an accredited university33. At common

law a “certificate of qualification” or “license” meant that the practitioner

was to be left alone unless he committed malpractice34. At common law ,

the only police power affecting the medical profession was Texas

Constitution Article XVI, § 3135.

31
Mann v. Texas State Board Medical Examiners , 403 SW 2d 218 (Texas Appellate Austin)
affirmed 413 S.W.2d 382, (03/29/67) quoting Scott v. Texas State Board of Medical Examiners,
384 S.W.2d 686, 690 (Tex. Sup. 1964)
32
In re State Bd. for Educator Certification, No. 13-0537, , at *17-18 (Tex. Dec. 19, 2014) citing
see Tex. Const. art. II, § 1 .
33
In The State v. James A. Goldman the Texas Supreme Court ruled that once a medical
practitioner has shown, as here, that he graduated from an accredited university he was to be
left alone unless he commits malpractice.
The State v James A. Goldman, 44 Tex. 104 (1875)

The Texas Supreme Court ruled therein :

“When a party has received the degree of “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
qualification33, he is not required to undergo a subsequent examination, nor furnish at any
time any other additional prove of his qualifications.”
34
id
35
A.R. Logan v. The State, 5 Texas Court Of Appeals 306 (Tyler-1878) In A.R. Logan v. The
State, Mr. Augustus R. Logan was indicted for practicing medicine without a certificate of
qualification from the Board Of Medical Examiners. The Court of Appeals dismissed the
indictment because Article XVI, Section 31 had not yet gone into effect.
28
 Ex post facto laws were null and void36.Trials were de novo, just as if

the administrative proceeding had not occurred37. Physician assistants had

a right to have a neutral magistrate determine if there was probable

cause38. The State Office Of Administrative Hearing failed or refused to

find probable cause39. The burden of proof in sustaining the order was

then upon the administrative agency40. Questions of fact were then

resolved in a district court by the jury pursuant to the preponderance of

the evidence standard of proof41. Appeals automatically set aside the

administrative Order and the practitioner could continue practicing

medicine42 until the district court affirmed the judgment of the

administrative agency43.

The defendants have not, and cannot, identify the statute(s) in effect in

1994 which removed those vested property and legal rights from

36
Robinson v. Crown Cork & Seal Co., 335 SW 3d 126, 147 (Tex. 2010) (Robinson v.
Crowncork & Seal Co., Inc., No. 06-0714 (Tex. 10/22/2010) .
37
Mann v. Texas State Board Medical Examiners , 403 SW 2d 218 (Texas Appellate Austin)
affirmed 413 S.W.2d 382, (03/29/67)
38
US Constitution Fourth Amendment ; Texas Constitution Article 1 , § 9;
39
Appendix Document 5 FN 2
40
State Bd. of Medical Examiners v. Mann, 413 S.W.2d 382, [Tex. 1967] quoting Scott v. Texas
State Board of Medical Examiners, 384 S.W.2d 686, 690 (Tex. Sup. 1964)
41
Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686, 690 (Tex. Sup. 1964),
supra
42
Texas State Board Medical Examiners v. Haney , 472 S.W.2d 550 (Tx App –Austin -
(10/27/71) Latham v. Security Insurance Co. of Hartford, 491 SW 2d 100 (Tex. 1972); (State
Bd. of Medical Examiners v. Mann, 413 SW 2d 383 [Tex. 1967];
43
Hull v. Texas State Board Public Accountancy, 434 SW 2d 387 (Tx App. – Houston-
(11/06/68)
29
 physician assistants. The defendants have not, and cannot, identify the

basis for asserting that Mr. Perez waived his vested rights as identified

herein. The defendants have not, and cannot, identify the legal basis for

concluding that Mr. Perez cannot challenge the Constitutionality of the

statutes which adversely affect his rights44. The defendants have not, and

cannot, claim that Mr. Perez committed an act which constitutes medical

malpractice or which endangered or injured the public45. The Defendants

have not , and cannot, show that the Texas Constitution has been

amended in order to deprive him of the aforementioned rights. The

Defendants have not, and cannot, claim that Mr. Perez is, somehow

excluded from the Texas’ doctrine of stare decisis46.

Once the right to practice medicine is lawfully acquired, it is a right

protected by the due process clauses of the state and federal

44
Cleveland Board of Education v. Loudermill.,470 US 532 , 84 L. Ed. 2d 494, 105 S. Ct. 1487
(1985) ; Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 456-457 (1988). 456-57
45
ROA Vol 1 of 2, pp 80-81 City of Houston v. Johnny Frank's Auto Parts, 480 SW 2d 774
(Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.). quoting Spann v. City of Dallas, 111
Tex. 350, 235 S.W. 513 (1921) ; Francisco v. Board of Dental Examiners, 149 S.W.2d 619, 622
(Tex. Civ. App. -- Austin 1941, writ ref'd) (quoting Waller v. State, 68 S.W. 2d 601, 605 (Tex.
Civ. App. -- Amarillo 1934, writ ref'd)).
46
Black v. 7-Eleven Convenience Stores, 03-12-00014-CV, 03-12-00015-CV (Tex.App. Dist.3
03/07/2014) citing Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964)
30
 constitutions47 and can only be revoked as shown herein. 48

The Federal49 and the Texas50 Constitutions protect vested rights. The

Fourteenth Amendment, §1 provides, among other things, that a State

may not abridge "the privileges or immunities of citizens of the United

States" or deprive "any person of life, liberty, or property, without due

process of law."51

Since the right of the citizen to use his property as he chooses so long

as he harms nobody, is an inherent and constitutional right, the police

power cannot be invoked for the abridgment of a particular use of private

property, unless such use reasonably endangers or threatens the public

health, the public safety, the public comfort or welfare52. A law which

47
Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686, 690 (Tex. Sup. 1964),
citing Vernon's Ann.St.Const. art. 1, § 19; U.S.C.A.Const. amend. 14. Francisco v. Board of
Dental Examiners, 149 S.W.2d 619 (Tex.App. 03/05/1941); Paul v. Davis,424 US 693, 710-11
(1976).
48
Texas Vending Comm. v. Headquarters Corp., 505 SW 2d 402 (Tex. Civ. App. – Austin -
1974, writ ref'd n.r.e.) quoting Scott v. Texas State Board of Medical Examiners, supra.;
49
Vartelas v. Holder, 132 S.Ct. 1479 (U.S. 03/28/2012) quoting Landgraf v. USI Film Products,
511 US 244, 263 (1994) and several provisions of the Constitution, among them, the Ex Post
Facto Clause, the Contract Clause, and the Fifth Amendment's Due Process Clause.
50
Robinson v. Crowncork & Seal Co., Inc., No. 06-0714 (Tex. 10/22/2010) citing article I,
section 16 of the Texas Constitution; Ex parte Abell, 613 S.W.2d 255, 260 (Tex. 1981)); McCain
v. Yost, 284 S.W.2d 898, 900 (Tex. 1955).
51
McDonald v. City of Chicago, Illinois, No. 08-1521 (U.S. 06/28/2010) quoting District of
Columbia v. Heller, 554 US 570 (2008).
52
Barber v. Texas Dept. of Transportation, 49 S.W.3d 12 (Tex.App. Dist.3 04/05/2001)(The
right to acquire and own property, and to deal with it and use it as the owner chooses, so long as
the use harms nobody, is a natural right. It does not owe its origin to constitutions. It existed
before them. It is a part of the citizen's natural liberty-an expression of his freedom, guaranteed
as inviolate by every American Bill of Rights); City of Houston v. Johnny Frank's Auto Parts,
31
 assumes to be a police regulation but deprives the citizen of the use of his

property under the pretense of preserving the public health, safety,

comfort or welfare, when it is manifest that such is not the real object and

purpose of the regulation, will be set aside as a clear and direct invasion

of the right of property without any compensating advantages53.

Accordingly, Mr. Perez respectfully demands the vested property and

legal rights identified hereinabove. The vested rights identified herein are

well known to Defendant Mari Robinson, Esq ; she acted without legal

authority and had a ministerial duty to abstain from transgressing upon

the same54.

III

SOVEREIGN IMMUNITY DOES
NOT BAR A SUIT PURSUANT TO 2001.038
TO CHALLENGE OR RESTRAIN AN AGENCY’ S RULE THAT
IS BEYOND THE AGENCY’ S CONTITUTIONAL AUTHORITY

On or about March 7th, 201455 the Defendants adopted new

administrative rules of general applicability. One new rule defines

480 SW 2d 774 (Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.). quoting Spann v.
City of Dallas, 111 Tex. 350, 235 S.W. 513 (1921).
53
Id, see also Cooley, Const.Lim. 248
54
Kobza v. Kutac, 109 S.W.3d 89 (Tex.App. Dist.3 05/30/2003) quoting Downing v. Brown,
935 SW 2d 112, 114 (Tex. 1996)
55
ROA Vol 2 of 2 pp 70-73 (Defendant’s Exhibit A is a statement or declaration against interest
therefore admissible evidence, Conner v. Johnson, No. 2-03-316-CV (Tex. App. Dist.2
10/28/2004) citing Tex. R. Evid. 803(24)
32
 “administrative default” as those instances where a litigant challenges (a)

the agency’s institutional competence to resolve the particular type of issue

presented, such as the constitutionality of a statute; (b) the adequacy of the

agency procedure and (c) the agency authority to grant the type of relief

requested56.

The newly adopted second rule allows the agency to revoke the right to

earn a living to those who the agency deems are guilty of an “administrative

default” as defined above even though there has been no finding that the

individual is a danger to the health and welfare of the citizens57.

Subsequently, relying upon those newly adopted administrative Rules

the Defendants deprived and/or seized Mr. Perez’ right to earn a

livelihood.58

The Administrative Procedure Act (APA) PA defines a "rule" as

56
But the Third District Court of Appeals and the US Supreme Court have ruled that litigant
have a right to do so, Mitz v. Texas State Board of Veterinary Medical Examiners, 278 S.W.3d
17 (Tex.App. Dist.3 11/14/2008) citing Texas State Bd. of Pharm. v. Walgreen Tex. Co., 520
SW 2d 845 (Tex. App.--Austin 1975, writ ref'd n.r.e.) , McCarthy v. Madigan, 503 US 140,
146-48 (1992))
57
Barber v. Texas Dept. of Transportation, 49 S.W.3d 12 (Tex.App. Dist.3 04/05/2001)(The
right to acquire and own property, and to deal with it and use it as the owner chooses, so long as
the use harms nobody, is a natural right. It does not owe its origin to constitutions. It existed
before them. It is a part of the citizen's natural liberty-an expression of his freedom, guaranteed
as inviolate by every American Bill of Rights); City of Houston v. Johnny Frank's Auto Parts,
480 SW 2d 774 (Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.) quoting Spann v.
City of Dallas, 111 Tex. 350, 235 S.W. 513 (1921).
58
ROA , Vol 1 of 2, pp 4-5, 18, 19 , 21, 33, 34, 35, 53; Vol 2 of 2 pp 61-62, 70-73 (Defendant’s
Exhibit “A” is a statement or declaration against interest therefore admissible evidence, Conner
v. Johnson, No. 2-03-316-CV (Tex.App. Dist.2 10/28/2004) citing Tex. R. Evid. 803(24)
33
 follows59: “ A state agency statement of general applicability that : (i)

implements, interprets, or prescribes law or policy; or (ii) describes the

procedure or practice requirements of a state agency; (B) includes the

amendment or repeal of a prior rule; and (C) does not include a statement

regarding only the internal management or organization of a state agency

and not affecting private rights or procedure.").

The March 7th, 2014 ruling is not a “contested case” because the

Texas Supreme Court has ruled that at common law a “certificate of

qualification or “license” meant that the practitioner graduated from an

accredited university60. That at common law a “certificate of

qualification” or “license” meant that the practitioner was to be left alone

unless he committed malpractice61. At common law , the only police

power affecting the medical profession was Texas Constitution Article

XVI, § 3162. The Defendants have failed or refused to allege that Mr.

59
Texas Dep't of State Health Servs. v. Balquinta, 429 SW 3d 726, 747 (Tex. App-Austin 2014,
pet. filed);Tex. Gov't Code § 2001.003(6)
60
In The State v. James A. Goldman the Texas Supreme Court ruled that once a medical
practitioner has shown, as here, that he graduated from an accredited university he was to be
left alone unless he commits malpractice.
The State v James A. Goldman, 44 Tex. 104 (1875)
61
id
62
A.R. Logan v. The State, 5 Texas Court Of Appeals 306 (Tyler-1878) In A.R. Logan v. The
State, Mr. Augustus R. Logan was indicted for practicing medicine without a certificate of
qualification from the Board Of Medical Examiners. The Court of Appeals dismissed the
indictment because Article XVI, Section 31 had not yet gone into effect.
34
 Perez committed medical malpractice.

The March 7th, 2014 ruling is not a “contested case” because at common

law, only the district courts could revoke the right to practice a medical

profession pursuant to the Medical Practice Act63 .

The March 7th, 2014 ruling is not a “contested case” because it does not

include the mandatory “concise and explicit statement of the underlying

facts supporting the findings”64. The Defendants failure or refusal to

disclose the underlying facts constitute reversible error. 65

The March 7th, 2014 ruling is not a “contested case” because at

common law the supervising physician was legally responsible for the

medical acts delegated to physician assistant. In 1983, the Fifth Circuit

ruled that :

“a person licensed to practice medicine shall have the authority to
delegate to any qualified and properly trained person or persons acting
under the physician's supervision any medical act which a reasonable and
prudent physician would find is within the scope of sound medical
judgment to delegate if, in the opinion of the delegating physician, the act
can be properly and safely performed by the person to whom the medical
act is delegated and the act is performed in its customary manner, not in
violation of any other statute, and the person does not hold himself out to
the public as being authorized to practice medicine. The delegating

63
Mann v. Texas State Board Medical Examiners , 403 SW 2d 218 (Texas Appellate Austin)
affirmed 413 S.W.2d 382, (03/29/67) quoting Scott v. Texas State Board of Medical Examiners,
384 S.W.2d 686, 690 (Tex. Sup. 1964)
64
Railroad Commission of Texas v. WBD Oil & Gas Co., 104 S.W.3d 69 (Tex.
02/13/2003)citing § 2001.141
65
Gibson v. Texas Municipal Retirement System, 683 SW 2d 882 (Tex. App.--Austin 1985, no
writ) citing Bay City Federal Savings and Loan Ass'n. v. Lewis, 474 SW 2d 459 (Tex. 1971);
35
 physician shall remain responsible for the medical acts of the person
performing the delegated medical acts.” (emphasis added)

On August 24th, 1990 , the Texas Medical Board admitted that

Physicians had the common law right to delegate medical acts to physician

assistants66 and that The delegating physician remained responsible for

the medical acts of the person performing the delegated medical acts.”

(emphasis added)67 who had graduated from a program accredited by the

Committee on Allied Health Education and Accreditation of the Council on

Medical Education of the American Medical Association68 or a person who

has passed the examination given by the National Commission on the

Certification of Physician Assistants69.

The March 7th, 2014 ruling is not a “contested case” because a

“contested case” within the meaning of the US Constitution includes, inter

alia, the right to confront , and compel the attendance of , adverse

witnesses 70. But see Texas Occupational Code § 164.007(c), it prevents a

66
Texas Register, Volume 15, Number 65, Pages 4941 , August 24, 1990 citing 22 TAC 190.
67
Id citing 22 TAC 185.4
68
Texas Constitution Article 16 § 31. Practitioners of Medicine : The Legislature may pass
laws prescribing the qualifications of practitioners of medicine in this State, and to punish
persons for mal-practice, but no preference shall ever be given by law to any schools of
medicine.
69
Id citing §185.2
70
Payne v. Texas State Board of Medical Examiners, No. 03-07-00558-CV (Tex.App. Dist.3
03/12/2009); Rector v. Texas Alcoholic Beverage Commission, 599 S.W.2d 800, (Tex. 1980);
Wolff v. McDonnell, 418 US 539, 559 (1974).
36
 medical provider , like Mr. Jose A. Perez , from confronting or cross

examining adverse witness71.

The March 7th, 2014 ruling is not a “contested case” because none

of the statutes referenced by the Defendants were in effect in 1994. The

Texas72 Constitutions prohibit the application of any ex post facto law

which affect or impairs vested or legal rights .

The March 7th, 2014 ruling is not a “contested case” because before

demanding that Mr. Perez appear at the State Office of Administrative

Hearing or the Physician Assistant Board there should have been a judicial

or neutral determination of probable cause that the Mr. Perez was guilty of

an offense.73 The Fourth Amendment applies to the states through the

Fourteenth Amendment74. Assuming, arguendo, that the TMB has

administrative jurisdiction over Mr. Perez then Fourth Amendment applies

to administrative agencies75. Probable cause means that there is a fair

71
ROA Vol 2 of 2, pp 62 fn 1; In re Texas Medical Board, 315 S.W.3d 177 (Tex.App. Dist.6
06/01/2010); see also the website of the organization known as “Texans for Patients' &
Physicians' Rights” , Mission Statement, http://www.txppr.com/index.cfm
72
Subaru of Am., Inc. v. David McDavid Nissan, Inc. 84 S.W.3d 212, 219 (Tex. 2002) citing
Tex. Const. art. I, § 16.
73
Texas Department of Public Safety v. Caitlin Elizabeth Adkins, No. 11-10-00298-CV;
(Tex.App. Dist.11 08/16/2012) citing State v. Woodard, 341 SW 3d 404, 411 (Tex. Crim. App.
2011) ); US Constitution Fourth Amendment; Texas Constitution Article 1§ 9.
74
Mapp v. Ohio, 367 US 643 , 367 US 643, 655 (1961),
75
United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (U.S. 01/23/2012) citing Katz v.
United States, 389 US 347 , 351 (1967), Club Retro LLC v. Hilton, 568 F.3d 181 (5th Cir.
05/06/2009)Marshall v. Barlow's, Inc.,436 US 307, 312-313, 56 L. Ed. 2d 305, 98 S. Ct. 1816
(1978)
37
 probability that an offense has been committed76. At the time the State

Office Of Administrative Hearings dismissed the TMB’s complaint it had

made no findings of probable cause77.

The TMB has not, and cannot allege that there was a patient-physician

assistant relationship between the alleged informer and Jose A. Perez.

Texas Courts have ruled that a physician is under no legal obligation to

practice his profession or render services to whomsoever may request

them78. 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 treatment79. The mere fact that a doctor is "on call"

does not in itself impose any duty80.

The Appellees/defendants have not and can not claim that Mr. Perez was

under contract to perform services for the benefit of the informer81.The

76
Probable cause means reasonable suspicion, viewed under the totality of the circumstances.
Terry v. Ohio, 392 US 1, 22 (1968); Alabama v. White, 496 US 325, 328-331 (1990).
77
State Office Of Administrative Hearings , Order No. 14, May 8th, 2013, Appendix Document #
5 , FN 2
78
Holland St. John, M.D v. Marty Howard Pope and Sally Bates Pope, 901 S.W.2d 420 (Tex.
06/08/1995) ; 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).
79
. Id. See 61 Am. Jur. 2d Physicians and Surgeons § 14, 158.
80
St. John, 901 S.W.2d at 424.
81
Lopez v. Aziz, 852 S.W.2d 303, 306 (Tex. App.--San Antonio 1993, no writ).
38
 Appellees/defendants have not, and cannot, identify the statute or

administrative rule which identifies the steps a medical provider must take

in order to refuse to treat a patient while avoiding behavior which can be

construed as “unprofessional or dishonorable conduct that is likely to

deceive, defraud or injure the public”.

A rule that is not properly promulgated under mandatory APA

procedures is invalid82. The Defendants have not, and cannot, claim that the

rules have been promulgated.

The March 7th, 2014 Ruling obviously "implements, interprets, or

prescribes law or policy," reflecting the Board's construction and

application of Rules § §187.27, 185.17(3) & (9). Secondly, the statement

also impact private rights and not merely internal agency management or

organization.

The Defendants’ March 7th, 2014 ruling, somehow, concluded, that Mr.

Perez’ numerous complaints, motions and Constitutional objections were

not meritorious83, within the meaning of Rule §187.27(b)(3)(C). It also

construed Rule §187.27(b)(3)(C) as authorizing revocation of Mr. Perez’

82
Texas State Board of Pharmacy v Witcher, 447 SW 3d 520 (3rd DCA- October 31, 2014) citing
El Paso Hosp. Dist. v. Texas Health & Human Servs. Comm'n, 247 S.W.3d 709, 714 (Tex.
2008); APA § 2001.035(a);
83
Hamilton v. Washington, NO. 03-11-00594-CV (3rd DCA - December 23, 2014
Mitz v. Texas State Bd. of Veterinary Med. Exam'rs, 278 SW 3d 17, 22 (Tex. App.-Austin
2008, pet. dism'd) (agencies have no power to determine the constitutionality of statutes)
39
 right to earn a living , the absence of corroborating underlying facts

notwithstanding.

Considering the foregoing, Mr. Perez respectfully submits that

construing the Board's policy as a "rule" is consistent with the Supreme

Court's instruction that the intent of the agency be considered , the

prescriptive nature of the policy, and the context in which the agency

statements were made.84

Although an "'agency is not bound to follow its decisions in contested

cases in the same way that a court is bound by precedent, an agency is

required by courts to explain its reasoning when it appears to the reviewing

court that an agency has departed from its earlier administrative policy or

there exists an apparent inconsistency in agency determinations85.

In conclusion, Section 2001.038 of the Administrative Procedure Act

allows a party to seek declaratory relief challenging the "validity or

applicability of a rule86 if it is alleged, as here, that the rule or its threatened

84
Combs v. Entertainment Publications, Inc., 292 S.W.3d 712 (Tex.App. Dist.3 06/12/2009)
citing Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 443 (Tex. 1994)).
85
Austin Chevrolet, Inc. v. Motor Vehicle Bd., 212 S.W.3d 425, 438 (Tex. App.-Austin 2006,
pet. denied) (quoting Flores v. Employees Retirement Sys. of Tex., 74 S.W.3d 532, 533-34 (Tex.
App.-Austin 2002, pet. denied)).
86
"Texas law recognizes the right to judicial review of an administrative order when the same
adversely affects a vested property right, and/or (3) the order otherwise violates constitutional
rights" General Servs. Comm'n v. Little-Tex Insulation Co.,39 SW 3d 591, 599 (Tex. 2001);
City of Sherman v. Pub. Utility Comm'n of Texas, 643 SW 2d 681, 686 (Tex. 1983).
40
 application interferes with or impairs, or threatens to interfere with or

impair, a legal right or privilege of the plaintiff87.

IV

FAILURE TO SUE AN ESSENTIAL PARTY IS A NON-
JURISDICTIONAL DEFECT WITHIN THE MEANING OF, INTER
ALIA, GOVERNMENT CODE 2001.176 AND RULE 39, TRCP

In their “Defendants’ Brief In Support of Their First Amended Plea to

the Jurisdiction “ the Defendants claimed that the Trial Court lacked subject

matter jurisdiction over all Mr. Perez’ claims” because Mr. Perez failed to

sue the Physician Assistant Board88.

The Defendants must prove that the Texas legislature has clearly

indicated that failure to sue the Physician Assistant Board (PAB) is

jurisdictional89. They have failed or refused to do so.

In their “Defendants’ Brief In Support of Their First Amended Plea to

the Jurisdiction “ the Defendants claim that the Trial Court lacks subject

87
The Third District Court of Appeals has interpreted this section as a waiver of sovereign
immunity, Texas Dep't of State Health Servs. v. Balquinta, 429 S.W.3d 726, 744 (Tex. App.-
Austin 2014, pet. filed); Combs v. Entertainment Publ'ns, Inc., 292 SW 3d 712, 720 (Tex. App.--
Austin 2009, no pet.) see Texas Logos, L.P. v. Texas Dep't of Transp., 241 S.W.3d 105, 123
(Tex. App.-Austin 2007, no pet.) (holding that "section2001.038 is a grant of original jurisdiction
and, moreover, waives sovereign immunity").
88
ROA Vol 1of 2, p 174 - Defendants’ Brief In Support of Their First Amended Plea to the
Jurisdiction P 4, II A.
89
Scott v. Presidio I.S.D., 266 S.W.3d 531 (Tex.App. Dist.3 08/28/2008); citing Zenith Star Ins.
Co. v. Wilkerson, 150 S.W.3d 525, 533 (Tex. App.--Austin 2004, no pet.);
41
 matter jurisdiction over all Mr. Perez’ claims” because Mr. Perez failed to

sue the Physician Assistant Board90. A "defect of parties" refers to joinder

problems involving necessary or indispensable parties91. A complaint of

"defect of parties" must be raised by verified objection pursuant to Rule

93(4), Tex. R. Civ. P. 92. The Defendants failed or refused to file a verified

objection accordingly they forfeited the issue93.

In their Defendants’ Brief In Support of Their First Amended Plea to the

Jurisdiction “ the Defendants claim that the Trial Court lacks subject matter

jurisdiction over all94 Mr. Perez’ claims” because Mr. Perez failed to sue the

Physician Assistant Board (PAB) 95 as allegedly required by 2001.176. But

the Third District Court of Appeals has ruled that such a failure is not

jurisdictional96.

90
ROA p 174 - Defendants’ Brief In Support of Their First Amended Plea to the Jurisdiction P 4,
II A.
91
IN Re Clifford Hall, NO. 14-14-00062-CV , (14th DCA - May 28, 2014) citing CHCA E.
Houston, L.P. v. Henderson, 99 SW 3d 630, 633 (Tex. App.-Houston [14th Dist.] 2003, no pet.).
92
In re Clifford Hall, supra citing Allison v. Nat'l Union Fire Ins. Co., 703 SW 2d 637, 638
(Tex. 1986) (per curiam).
93
id
94
ROA p 174- Mr. Perez’ failure to add the PAB as a party is the only occasion in which the
defendants claimed that the Court lack subject matter jurisdiction over all his claims.
95
ROA p. 174; Defendants’ Brief In Support of Their First Amended Plea to the Jurisdiction P 4,
II A.
96
Sierra Club v. Tex. Natural Res. Conservation Comm'n, 26 SW 3d 684, 688 (Tex. App.-
Austin 2000) (holding that section 2001.176(b)(2)'s service requirement is not jurisdictional
under Dubai ), aff'd on other grounds, 70 SW 3d 809, 811, 814-15 (Tex. 2002)
42
 At any rate, failure to join an essential party is no longer a jurisdictional

defect97. Once a person’s or entity’s absence is identified as being needed for

a just adjudication of the claims before the court, the current version of Rule

39 directs that the trial court "shall order that he be made a party."98

Accordingly , the trial court erred when it dismissed the complaint

because Mr. Perez did not sue the PAB.

V

THE DOCTRINE OF EXCLUSIVE JURISDICTION
DOES NOT APPLY, WHERE , AS HERE ,
(a) THERE ARE CONSTITUTIONAL CLAIMS, AND
(b) THE AGENCY HAS ALREADY MADE A FINAL DECISION

The Defendants claimed that the trial court had no jurisdiction because

the PAB has exclusive jurisdiction99. The Exclusive or primary jurisdiction

does not require dismissal where, as here, there are Constitutional and Title

42 Claims100. Nor , where as, here, the agency has already made the final

decision on the issue101 .

97
Kodiak Resources, Inc. v. Smith, No. 09-10-00362-CV (Tex.App. Dist.9 02/16/2012) citing
Cooper v. Tex. Gulf Indus., Inc., 513 SW 2d 200, 203-04 (Tex. 1974); Behzad Khalilnia v.
Federal Home Loan Mortgage Corporation, No. 01-12-00573-CV (Tex.App. Dist.1 03/21/2013)
98
Kodiak Resources, Inc. and Bbx Operating, L.L.C v. Patricia Ann Smith, Beverly Lee Smith
Sunday, Melody Koch, Keith, No. 09-10-00362-CV (Tex.App. Dist.9 02/16/2012)
99
ROA Vol 1 of 2, p. 174; Defendants’ Brief In Support of Their First Amended Plea to the
Jurisdiction P 4, II A.
100
Gutierrez v. Laredo Independent School Dist., 139 S.W.3d 363 (Tex.App. 05/12/2004); Tex.
Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 SW 2d 88, 90 FN3 (Tex. 1992)
101
Railroad Comm'n v. ARCO Oil & Gas Co., 876 SW 2d 473, 478 (Tex. App.-Austin 1994,
writ denied) ; ( Cypress-Fairbanks Indep. Sch. Dist. v. Texas Educ. Agency, 797 S.W.2d 336,
342-43 (Tex. App.-Austin 1990)
43
 VI

ASSUMING, ARGUENDO, THAT THE PAB HAS EXCLUSIVE
ADMINISTRATIVE JURISDICTION THE SAME IS
VOID PURSUANT TO TEXAS EX POST FACTO STATUTES

The Texas Constitutions prohibits the application of ex post facto laws102.

A retroactive statute violates the Constitutions if, when applied, it takes

away or impairs vested rights acquired under existing law103.

The Texas Medical Board seeks to impose administrative penalties

pursuant to ex post facto laws. The facts show that Mr. Jose A. Perez

presented his academic credentials to the Texas Medical Board, and the

same were accepted on , September 22nd, 1994, 21 years ago. The Texas

Physician Assistant Board ’s administrative jurisdiction104 began , and the

amended licensing act105 became effective , on Sept. 1, 1999.

In their administrative complaint the TMB now106 claims that it has the

authority to revoke Mr. Perez “license”, pursuant to Texas

102
ROA pp 24-26 Abigail Elizabeth Young v. the State of Texas, No. 14-10-00646-CR
(Tex.App. Dist.14 01/10/2012) citing U.S. Const.. art. I, ' 10, cl. 1; Tex. Const. art. I, ' 16.
103
Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212 (Tex.
06/27/2002); Ex parte Abell, 613 S.W.2d 255, 260 (Tex. 1981); McCain v. Yost, 284 S.W.2d
898, 900 (Tex. 1955). A vested right is a property right, which the Constitution protects like any
other property. Middletown v. Texas Power & Light Co., 185 S.W. 556, 560 (Tex. 1916).
104
§ 204.051. TEXAS PHYSICIAN ASSISTANT BOARD. Acts 1999, 76th Leg., ch. 388, §
1, eff. Sept. 1, 1999
105
§ 204.001. SHORT TITLE. This chapter may be cited as the Physician Assistant Licensing
Act. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
106
Initially the TMB was seeking to impose a $3000.00 penalty
44
 Administrative Code , Title 22, Part 9, Chapter 190 , which became

effective in 2003.107.

The TMB claims that Mr. Perez violated , Texas Administrative Code

204.302(4) which purportedly penalizes “unprofessional or dishonorable

conduct that is likely to deceive, defraud or injure the public” and which

became effective 5 years AFTER Mr. Perez began practicing108. Mr.

Perez, adamantly, but respectfully objects. The Physician Assistant Board

‘s administrative jurisdiction began on September 1st, 1999.Texas

Administrative Code §185.17 became effective on November 3, 2002,

27 - TexReg 10027 ; Texas Occupations Code § 204.302 became effective

on September 1, 1999. Texas Occupations Code - Section 164.011(b) -

became effective on September . 1, 1999.

Secondly, the US109 and Texas110 Supreme Courts have ruled that “It is

the right of every citizen of the United States to follow any lawful

calling, business, or profession they may choose, subject only to such

restrictions determined by the state to be necessary for the health and

safety of its citizens111. The Texas Board of Medicine has not , and

107
The provisions of this §190.1 adopted to be effective November 30, 2003, 28 TexReg 10496;
amended to be effective January 20, 2009, 34 TexReg 342
108
Acts 1999, 76th Leg., ch. 388, 1, eff. Sept. 1, 1999.
109
Dent v. State of W. Va.,129 US 114, 121-22 (1889)
110
Industrial Accident Bd. v. O'Dowd, 303 S.W.2d 763 (Tex. 1957))
111
Dent v. State of W. Va.,, 129 U.S. 114 (1889),
45
 cannot, claim that the matter before SOAH is related to the Texas Health

and Safety Code112. The Texas Department of Health (TDH) has exclusive

jurisdiction over all matters concerning the Health and Safety of

Texans113.

Furthermore, whether or not something is necessary is an issue of fact

for the jury which precludes summary judgment114.

VII

ASSUMING, ARGUENDO THAT
FAILURE TO SUE AN ESSENTIAL PARTY IS
JURISDICTIONAL THE DISMISSAL IS WITHOUT PREJUDICE

A dismissal with prejudice is improper when the plaintiff is capable of

remedying the jurisdictional defect115. Once a person’s or entity’s absence is

identified as being needed for a just adjudication of the claims before the

court, the current version of Rule 39 directs that the trial court "shall order

that he be made a party."116

112
2005 Texas Health & Safety Code Chapter 12.
113
2005 Texas Health & Safety Code § 12.001
Sec. 12.001. GENERAL POWERS AND DUTIES. (a) The board has
general supervision and control over all matters relating to the
health of the citizens of this state. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
114
Zimmer v. Miller Trucking Co., 743 F.2d 601 (8th Cir. 09/13/1984)
115
Trevino v. State, 03-12-00060-CV (Tex.App. Dist.3 08/07/2013) citing Harris County v.
Sykes, 136 S.W.3d 635 (Tex. 05/28/2004)
116
Kodiak Resources, Inc. and Bbx Operating, L.L.C v. Patricia Ann Smith, Beverly Lee Smith
Sunday, Melody Koch, Keith, No. 09-10-00362-CV (Tex.App. Dist.9 02/16/2012)
46
 VIII

A FEDERAL AND STATE
“TAKINGS” OR “SEIZURE OF PROPERTY “
PROCEEDING APPLIES TO ALL SPECIES OF
PROPERTY WITHOUT EXCEPTIONS OR LIMITATIONS

In the trial court the Defendants admitted that they deprived, and or seized,

Mr. Perez’ right to earn a living as a physician assistant without

compensation117. Nevertheless, they claimed that Mr. Perez failed to allege

any facts which would show that the legislature waived sovereign immunity.

The Defendants did not, and could not , allege that the abridgement and/or

seizure was necessary for the preservation of the health, safety, and

welfare of the public118.

Texas district courts are courts of general jurisdiction119. The Texas

Constitution states that the jurisdiction of a district court "consists of

exclusive, appellate, and original jurisdiction of all actions, proceedings, and

remedies, except in cases where exclusive, appellate, or original jurisdiction

117
ROA Vol 1 of 2, p 174 - Defendants’ Brief In Support of Their First Amended Plea to the
Jurisdiction P 4, II A.
118
Barber v. Texas Dept. of Transportation, 49 S.W.3d 12 (Tex.App. Dist.3 04/05/2001) City of
Houston v. Johnny Frank's Auto Parts, 480 SW 2d 774 (Tex.Civ.App.-Houston [14th Dist.]
1972, writ ref'd n.r.e.). quoting Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513 (1921).
119
Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000).
47
 may be conferred by this Constitution or other law on some other court,

tribunal, or administrative body120.

In Dubai, the supreme court noted that courts of general jurisdiction are

presumed to have subject-matter jurisdiction "unless a showing can be made

to the contrary121. The defendants failed or refused to show that the district

court had no jurisdiction over Mr. Perez’ complaint.

In the trial court , Defendants argued that sovereign immunity protect the

governmental entity from lawsuits for money damages122. In other words,

Defendants’ position is that absent a rare act of the Legislature, property

owners have no recourse to the courts when a state or local official

wrongfully invade or seize property rights on the government’s behalf.

That can not be the correct rule. As the Texas Supreme Court long ago

recognized , “if the present suit could not be maintained without legislative

consent, officials of the state would never have to condemn property

legally. They could simply appropriate it , and the property owner would be

entitled to no compensation unless the legislature granted him permission to

sue123.

120
id
121
id quoting 12 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3522
(1984)).
122
ROA p 174
123
Griffin v. Hawn, 341 SW 2d 151, 152 (Tex. 1960)
48
 Fortunately , the 1876 conventioneers , the Texas Constitution and US

Supreme Court opinions124 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 of Article 1 of the Constitution, supra,
which says that no person's property shall be taken or damaged for public
use without adequate compensation being made, has no exceptions 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 requirements125. Agencies created by the State are not

exempt126.

124
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)
125
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).
126
id
49
 If there is a taking or a seizure , the constitution requires payment, even

though the taking be for the purpose of promoting the public health, safety,

morals or welfare and, therefore, involves an exercise of the police

power127. Inverse condemnation proceedings apply when any type of

property128 – i.e., physical, intangible129, intellectual – is affected by a

governmental taking. Since 1922 it has been understood that a “regulatory

taking” constitutes a taking requiring compensation130.

Consequently , The Trial Court erred in dismissing Mr. Perez’ claims.

IX

MR. PEREZ OUGHT TO HAVE BEEN
GIVEN LEAVE TO AMEND IN ORDER TO ALSO
SUE MARIE ROBINSON IN HER INDIVIDUAL CAPACITY

A plea to the jurisdiction challenges a trial court's authority to decide the subject

matter jurisdiction of a specific cause of action131. State government employees

may be sued in their individual capacities for damages, declaratory or injunctive

127
San Antonio River Authority v. Garrett Brothers, 528 SW 266, 273 (Tex. Civ. App.--San
Antonio 1975, writ ref'd n.r.e.). citing Brazos River Authority v. City of Graham, 335 S.W.2d
247, 251 (Tex. Civ. App.--Fort Worth 1960), aff'd., 354 SW 2d 99 (1961)
128
Renault v City of Houston , 415 S.W.2d 948 (10th DCA- 05/18/67) Lynch v. United States,
292 U.S. 571, 78 L. Ed. 1434, 54 S. Ct. 840. It also means this under the Texas Constitution.
See G.C. & S.F. Ry. Co. v. Fuller, 63 Tex. 467, 469 (1885)
129
Nautilus , Inc. v Biosig Instruments, Inc. No. 13-369 (US Supreme Court - June 2, 2014)
(patents) ; Kent , et al, v Dulles, 357 US 116 (U.S. 06/16/1958)(Right to travel)
130
Pennsylvania Coal Co. v. Mahon, 260 US 393 (1922),
131
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004)
50
relief pursuant to 42 USC 1983132. Accordingly, Mr. Perez ought to have been

given leave to amend in order to also sue Ms. Marie Robinson in her individual

capacity133.

X

THE COURT ERRED IN DISMISSING
MR. PEREZ’ ULTRA VIRES CLAIM AGAINST
DEFENDANT MARI ROBINSON, JD IN HER OFFICIAL CAPACITY

A suit against a state official for acting outside her authority is not barred

by sovereign immunity134. In Heinrich, the Court affirmed the rule that

suits, as here, for declaratory or injunctive relief against a state official to

compel compliance with statutory or constitutional provisions are not suits

against the State135.

XI

MR. PEREZ OUGHT TO HAVE BEEN
GIVEN LEAVE TO AMEND IN ORDER TO ALSO
SUE MARIE ROBINSON IN HER INDIVIDUAL CAPACITY

132
Kentucky v. Graham, 473 U.S. 159, 165 (1985); Newman v. Bryan, 06-13-00063-CV
(Tex.App. Dist.6 10/09/2013) citing Aguilar v. Frias, 366 SW 3d 271, 273 (Tex. App.—El Paso
2012, pet. denied)
133
ROA Vol 1 of 2 p 150; State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007); Miranda, 133
S.W.3d at 226-27.
134
ROA Vol 1 of 2, p 150; Texas Parks and Wildlife Department v. the Sawyer Trust, No. 07-
0945 (Tex. 08/26/2011) citing City of El Paso v. Heinrich, 284 S.W.3d 366, 370-74 (Tex. 2009)
135
Id citing Heinrich, 284 S.W.3d at 370-74.
51
 A plea to the jurisdiction challenges a trial court's authority to decide the subject

matter jurisdiction of a specific cause of action136. State government employees

may be sued in their individual capacities for damages, declaratory or injunctive

relief pursuant to 42 USC 1983137. Accordingly, Mr. Perez ought to have been

given leave to amend in order to also sue Ms. Marie Robinson in her individual

capacity138.

XII

THE TRIAL COURT ERRED IN NOT
ADJUDICATING WHETHER THE PROPERTY HAS BEEN
TAKEN AND/OR SEIZED WITHIN THE MEANING OF US
CONSTITUTION FOURTH AND FIFTH AMENDMENTS

The Fifth Amendment forbids takings in the form of government

regulations that effectively deprive a property of all economic value139.The

Takings Clause applies to the states140. Where a State provides an adequate

procedure for seeking just compensation, the property owner cannot claim a

violation of the Just Compensation Clause until it has used the procedure and

136
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004)
137
Kentucky v. Graham, 473 U.S. 159, 165 (1985); Newman v. Bryan, 06-13-00063-CV
(Tex.App. Dist.6 10/09/2013) citing Aguilar v. Frias, 366 SW 3d 271, 273 (Tex. App.—El Paso
2012, pet. denied)
138
ROA Vol 1 of 2, p 150-151; State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007); Miranda,
133 S.W.3d at 226-27.
139
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).
140
Chicago, B & Q.R. Co. v. Chicago, 166 U.S. 226 (1897),
52
 been denied just compensation.141

But the Williamson County ripeness doctrine "does not preclude state

courts from hearing simultaneously a plaintiff's request for compensation

under state law and a claim that, in the alternative, the denial of compensation

would violate the Fifth Amendment of the Federal Constitution.142

The Fourth Amendment, made applicable to the States by the Fourteenth

Amendment143, provides in relevant part that the "right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated . . . ." A "seizure" of property

occurs when "there is some meaningful interference with an individual's

possessory interests in that property144.

The Fourth Amendment applies to civil as well as criminal seizures145,

and the Supreme Court holds that an interference with individual property

rights may be found to breach more than one provision of the Constitution146.

141
Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172,
195 (1985).
142
Town of Nags Head v. Toloczko, 12-1537 (4th Cir. 08/27/2013) citing San Remo Hotel, L.P.
v. City & Cnty. of S.F., Cal.,545 US 323, 346 (2005).
143
Ker v. California, 374 U.S. 23, 30, 83 S.Ct. 1623, 1628 (1963),
144
Severance v. Patterson, 566 F.3d 490 (5th Cir. 04/23/2009) citing United States v. Jacobsen,
466 U.S. 109, 113, 104 S.Ct. 1652, (1984); Soldal v. Cook County, 506 U.S. 56, 61, 113 S.Ct.
538, 543 (1992).
145
Severance v. Patterson, 566 F.3d 490 (5th Cir. 04/23/2009) citing Freeman v. City of Dallas,
242 F.3d 642, 647 n.5 (5th Cir. 2001) (en banc),
146
Id citing United States v. James Daniel Good Real Property, 510 U.S. 43, 49-50, 114 S.Ct.
492, 499 (1993).
53
 Separate claims for constitutionally unreasonable seizure and taking of

property may coexist147.

Further, the courts have ruled more than once that substantive due process,

procedural due process, equal protection and takings claims may be

implicated simultaneously in various types of governmental actions that

interfere with individual property rights148.

The Fourth and Fifth Amendments both provide specific constitutional

commands149. That they may have evolved through case law to overlap in

providing remedies for some deprivations of property interests does not

authorize the court to fail to apply one or the other provision150. Indeed, as

Presley noted, the elements of a violation of the two amendments differ, with

the touchstone of a takings claim being lack of just compensation and that of a

seizure claim being its unreasonableness151. Further, § 1983 authorizes

different damage measures for the claims152.

147
Id citing Presley v. City of Charlottesville, 464 F.3d 480, 487 (4th Cir. 2006).
148
Id citing Simi Inv. Co.. v. Harris County, 236 F.3d 240, 248-49 (5th Cir. 2000); John Corp. v.
City of Houston, 214 F.3d 573, 584-85 (5th Cir. 2000).
149
id
150
id
151
Severance v. Patterson, 566 F.3d 490 (5th Cir. 04/23/2009)
152
City of Monterey v. Del Monte Dunes at Monterey, 526 U.S. 687, 119 S.Ct. 1624, 143
L.Ed.2d 882 (U.S. 05/24/1999) citing Heck v. Humphrey, 512 U. S. 477, 483 (1994)
54
 XIII

THE DEFENDANTS EXHIBIT “A” IS INADMISSIBLE EVIDENCE

The Defendants submitted the Texas Physician Assistant Board “Default

Order” as exhibit “A”. Mr. Perez objected pursuant to Texas Rule of Evidence

401and 402 because the same is irrelevant.

The Defendants have failed or refused to show that they have the

Constitutional or statutory authority to revoke Mr. Perez right to work in his

chosen profession on a default basis153.

Furthermore, the document is inadmissible pursuant to Tex. R. Civ.

Evid. 803(6)) because the custodian of records did not testify that the same

was a record of regularly conducted business or activity and not prepared in

anticipation of litigation154.

XIV

THE DEFENDANTS EXHIBITS “B”
THROUGH “H” ARE INADMISSIBLE EVIDENCE

Mr. Perez also objects to Exhibits B through E. Cause of Action No. D-1-

GN-12-000798 was a parallel action filed in the Austin District Court

153
Firstly, the board’s failure or refusal to disclose underlying facts constitutes reversible error,
Gibson v. Texas Municipal Retirement System,683 SW 2d 882 (Tex. App.--Austin 1985, no
writ) citing Bay City Federal Savings and Loan Ass'n. v. Lewis, 474 SW 2d 459 (Tex. 1971).
154
Sholdra v. Bluebonnet Sav. Bank, FSB, 858 SW 2d 533, 535 (Tex. App.-Fort Worth 1993,
writ denied);
55
 seeking a declaratory judgment and injunctive relief . Texas considers

parallel actions to be interlocutory in nature and not appealable155. The State

Court dismissed the Perez’ lawsuit because the administrative action was still

ongoing at the State Office of Administrative Hearings and therefore the

Travis County District Court and the Third District Court of Appeals lacked

subject matter jurisdiction pursuant to Texas Administrative Code

Sec. 2001.171156. If a court lacks jurisdiction over the subject matter , any

judgment rendered in that proceeding is void.157

Mr. Perez also objected to Exhibits F through H. Mr. Perez’ filed a

complaint for declaratory and injunctive relief in the United District Court

(USDC) in the Western District Of Texas. . The USDC and the US Court of

Appeals dismissed the complaint on June 25th , 2013 because they concluded

that Mr. Perez case was before the Physician Assistant Board and therefore

the Younger Abstention Doctrine deprived them of jurisdiction. If a court

lacks jurisdiction over the subject matter , any judgment rendered in that

proceeding is void.158

155
Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972); Pelt v. State Bd. of Ins., 802 S.W.2d 822,
827 (Tex. App.-Austin 1990, no writ);
156
§ 2001.171. JUDICIAL REVIEW.
157
Travelers Ins. Co. v. Joachim, 315 SW 3d 860, 862 (Tex. 2010); First State Bank Central
Texas v. Lakeway Regional Medical Center Development, LLC, 03-13-00058-CV (Tex.App.
Dist.3 02/20/2014)
158
id
56
 XV

MR. PEREZ OUGHT TO BE GRANTED LEAVE TO
AMEND DEFECTIVE ALLEGATIONS
OF JURISDICTION IN THE APPELLATE COURTS

Assuming arguendo, that Mr. Perez has failed to allege jurisdictional facts in the

trial court which would have shown that Texas has waived sovereign immunity,

Mr. Perez respectfully submits that, as to federal claims, he can amend defective

allegations of jurisdiction in the appellate courts pursuant to 28 USC § 1653159.

Concerning 28 USC 1653 The US Supreme Court has stated that :

“The "complaint" filed in the District Court, see n. 5, supra, nowhere mentioned §
1331 nor alleged the requisite amount in controversy. The facts alleged and the
claim asserted nonetheless were sufficient to demonstrate the existence of a federal
question. See C. Wright, Law of Federal Courts 290-291 (2d ed. 1970). And
although a complaint under § 1331 is fatally defective unless it contains a
proper allegation of the amount in controversy, see, e. g., Canadian Indemnity
Co. v. Republic Indemnity Co., 222 F.2d 601 (CA9 1955), respondent now
claims that the matter in controversy does exceed the requisite amount. Brief
for Respondent on the Jurisdictional Issues 4-5. Defective allegations of
jurisdiction may be amended, 28 U.S.C. § 1653. In view of our disposition of
the case, however, no purpose would be served by requiring a formal
amendment at this stage.” (emph. Added)

Mr. Perez fully understands that 28 USC 1653 does not apply to Texas

jurisprudence. But Mr. Perez respectfully submits that Texas jurisprudence, as

shown hereinbelow, has adopted the rationale used by Congress in adopting 28

USC 1653.

159
Schlesinger v. Councilman, 420 US 738, 744 n. 9, 95 S. Ct. 1300, 1306 n. 9, 43 L. Ed. 2d
591 (1975); Smith v. United States,502 F 2d 512 , 519-20 (5th Cir. 1974).
57
 Firstly, the Texas Supreme Court has ruled that a litigant may raise

Constitutional Claims for the first time on appeal160.

Mr. Perez has a substantive right of adequate, effective, and meaningful access to

the courts161. The right is protected by, inter alia, (a) the First Amendment right to

petition for redress of grievances; (b) the fourteenth amendment guarantees of

procedural and substantive due process162; (c) the Fifth Amendment due process

clause163, (d) and the Fourteenth Amendment equal protection clause164.

Mr. Perez can raise the issue of subject matter jurisdiction for the first time on

appeal165. Hence, he should be able to amend defective allegations of jurisdiction

in the appellate courts pursuant to (a) Tex. Const. art. I, § 13166. The open courts

provision of the Texas Constitution provides: "All courts shall be open and every

person for an injury done him, in his lands, goods, person or reputation, shall have

160
City of Dallas v. Heather Stewart, No. 09-0257 (Tex. 01/27/2012 [a constitutional] claim may
be asserted for the first time in the district court upon appeal of the agency order) citing 1 Beal ,
Texas Administrative Practice and Procedure § 9.3.1[c]
161
Jackson v. Procunier, 789 F.2d 307 (5th Cir. 05/09/1986) citing Bounds v. Smith, 430 US 817,
821, 97 S. Ct. 1491, 1494, 52 L. Ed. 2d 72 (1977).
162
id
163
Christopher v. Harbury, 536 US 403, 415 n.12 (2002) (noting that the Supreme Court has
located the court access right in the Privileges and Immunities clause, the First Amendment
petition clause, the Fifth Amendment due process clause, and the Fourteenth Amendment equal
protection clause).
164
id
165
City of Houston v. Rhule, 12-0721 (Tex. 11/22/2013) quoting Univ. of Tex. Sw. Med. Ctr. at
Dall. v. Loutzenhiser, 140 SW 3d 351, 358 (Tex. 2004)).
166
. Marino v. King, 355 SW 3d 629,634 (Tex. 2011) ("Constitutional imperatives favor the
determination of cases on their merits rather than on harmless procedural defaults.");
166
Milestone Operating, Inc. v. ExxonMobil Corp., 388 SW 3d 307, 310 (Tex. 2012). A
Rodriguez v. Bolanos, 04-12-00287-CV (Tex.App. Dist.4 05/29/2013)
58
remedy by due course of law." Tex. Const. art. I, § 13. This requirement

"guarantees that a common law remedy will not be unreasonably abridged167 .

Secondly, Mr. Perez respectfully submits that , as to all claims, he can amend

defective allegations of jurisdiction in the appellate courts pursuant to The Due

Process Clauses of the Texas Constitution and the Fourteenth Amendment to the

United States Constitution168 because in Texas an adjudication in the merits is

preferred169.

Mr. Perez respectfully submits that, as to all claims, he ought to be allowed to

amend defective allegations of jurisdiction in the appellate courts pursuant to Tex.

R. App. P. Tex.R. App. P. 38.7170 , Rule 33.1(d)171 and Rule 2172. In Majid vs

Hussain the Third District Court of Appeals stated :

“The rules further instruct us to construe the briefing requirements "liberally"
and that "substantial compliance" is sufficient, as the point of having briefs in

167
Elizabeth Rivera , as next of friend for MR NO. 13-0096 August 22, 2014 ; citing Tex.
Workers' Comp. Comm'n v. Garcia, 893 SW 2d 504, 521 (Tex. 1995).
168
Simmons vs Outreach Health Community Care No. 08-13-00204-CV (8th DCA - November
7, 2014) (." U.S Const. Amend. XIV, § 1. ;Tex.Const. art. I, § 19.
169
Milestone Operating, Inc. and Dstj, L.L.P v. Exxonmobil Corporation, No. 11-0647 (Tex.
10/26/2012) citing Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992).
170
Majeed v. Hussain, No. 03-08-00679-CV (Tex.App. Dist.3 10/22/2010)
171
Central Austin Apartments, LLC v. UP Austin Holdings, LP, NO. 03-13-00080-CV (3rd DCA-
December 8, 2014) (In a nonjury case, a complaint regarding the legal or factual insufficiency of
the evidence . . . may be made for the first time on appeal in the complaining party's brief)
172
Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 12/04/1997) (we have instructed the courts of
appeals to construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to
appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a
rule citing Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex.1993); Marino v. King, 355 SW 3d
629,634 (Tex. 2011) ("Constitutional imperatives favor the determination of cases on their merits
rather than on harmless procedural defaults.");

59
 the first place is merely to "acquaint the court with the issues in a case and to
present argument that will enable the court to decide the case" and not to
impose formal requirements as ends in themselves. Id. R. 38.9. The rules
further contemplate that appellate courts will afford parties the opportunity
to cure any formal or substantive briefing defects before disposing of the
appeal based on such a defect rather than the merits. See id.; see also
Inpetco, Inc. v. Texas Am. Bank/Houston, 729 S.W.2d 300, 300 (Tex. 1987)
(regarding parallel provisions of former appellate rules). Finally, "[a] brief
may be amended or supplemented whenever justice requires, on whatever
reasonable terms the court may prescribe." See Tex. R. App. P. 38.7.” (emph
added)
CONCLUSION

WHEREFORE Mr. Perez respectfully submits that the trial court judgment

be reversed and the case remanded.

Respectfully Submitted,
________/S/__Jose A Perez_____________
34 Candle Pine Place
The Woodlands, TX 77381
theaesculapius@gmail.com
281-673-0452

CERTIFICATE OF SERVICE

It is hereby certified that a copy of the foregoing “ Amended
Plaintiff/Appellant’s Initial Appellant Brief “ was served by emailing a copy
thereof via the State efiling system on this 7th Day of March 2015 to:

Ted A Ross, Esq
Assistant Attorney General
PO Box 12548
Austin, TX 78711-2548
ted.ross@texasattorneygeneral.gov
Margaret.Evins@texasattorneygeneral.gov

60
Respectfully Submitted,
_____/S/__Jose A. Perez_________________

TRAP 9.4(i)(3)
CERTIFICATE OF COMPLIANCE

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

in12-point typeface. The computer program used to prepare this document

determined the word count to be 14,879 which includes all words contained in this

brief, excepting the cover page and index of authorities.

61
 No. 03-14-00644-CV

IN TIlE TmRD COURT OF APPEALS
AUSTIN, TEXAS

JOSE A. PEREZ

Appellant

Vs.

TEXAS :rv1EDICALBOARD and MARl ROBINSON JD, in her Official Capacity

Appellees.

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

Appellant's Amended Appendix

Jose A. Perez
34 Candle Pine Place
The Woodlands, TX 77381
theaesculapius@gmail.com
281-673-0452
 DOCUMENTS

1- September 18th, 2014 Final Judgment
2- September 5th, 2014 Order Granting the Defendant's Plea to the Jurisdiction
3- Correspondence From the Court dated July 3rd, 2014
4- Texas Medical Board Request to Docket Case XXX-XX-XXXX.PA
5- ALJ's Order Dismissing Case

CERTIFICATE OF SERVICE

It is hereby certified that a copy of the foregoing" Plaintifti'Appellant's
Amended Appendix " was served by emailing a copy thereof via the State efiling
system on this 7th Day of March 2015 to:

Ted A Ross, Esq
Assistant Attorney General
POBox 12548
Austin, TX 78711-2548
ted.ross@texasattorneygeneral.gov
Margaret.Evins(a),texasattorneygeneral.gov

--~ /S/ Jose A. Perez -------------------
 8I(t4269 PG96

Notice sent: final ;••w-rIOCUtOfY None FiredIn The District Cour
.,f Tf'3v;s County, Texas'
.' DispParti-. _

~.
"
Dtsp code: CW I CLS _
.\, SEt' i ~ JF
Redact pgs:,-------t~..--
Judge D~~ _ Clerk t\f
CAUSE NO. D-I-GN-14-001171 ._-__ !~\)jri9U~:
·~II!Jii.1 cieri
JOSE A. PEREZ, § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. § TRA VIS COUNTV~ TEXAS
§
TEXAS MEDICAL BOARD and §
MARl ROBINSON., J.D., in ber §
Official Capacity §
Defendllnts. § 53RD JUDICIAL DISTRICf

FINAL JUDGMENT

Pursuant to the Court's order granting Defendants' Plea to the Jurisdiction. IT IS

HEREBY ORDERED ..ADJUDGED AND DECREED that all of Plaintiffs claims in the·

captioned proceeding are hereby dismissed with prejudice.

IT IS FURTHER ORDERED that all costs are taxed against Plaintiff.

Signed on this I <6 day of September, 2014.

Judge Presiding
~lZsellt Lit•.}! """tIll~,,~ e> DC
D1sPPlII'I{es~-~:z.
0I5P~. @I'as 4u I
Redact pgo: -
~_t.1cC)( t::AtL
JOSE A. PEREZ_
PlaintitT.
v.
TRAVIS COUNTY. Tf.XAS
TF.xAS MEDICAL BOARD. and
MARl ROBINSON, in bcr official
capacir.y.
DefendanlS. 353111 JUDICIAl. DlSTRlCT

ORDER GRAN11NG DEfENDANTS' PI.EA TO THE JURISDICTION

Came 011 lOr oonsideralion the First Amended Plea 10 lbe: Jurisdiction of ~fendants
Texas Medical Board and Marl Rubinson, After consiIkriRlt \be same: and lbe n:le\'anl pleadin~
and briefing 00 file herein. th~ Coon is ot'tlle opinion thai Defendants' Pica should be grnnu:d.
IT IS THEREFORE ORDERED. ADJllOOED AND DECREED !hal Defendants' Fin:t
Am~nded Plea to the Jurisdiction isGRANTED.

SIGNED on the U day of Seplcmher. 2014.

91
 foiled ill Tr!c Distrk: (.v~l1t
'-If Travil; CQunty. '!'e I(~!l:'

DARLENE BYRNE
Judge
(512) 85+-9~B JAMES FERRELL
Court Clerk
KATI' GALLAGHER PARKER (512) 85+5846
Staff Attomey
(512) 85+4915 MEANEITE SALGADO
Official Court Reporter
RENE SALINAS 126TH DISTRICT COURT (512) 85-1-7848
Court Operations Officer
(512) 85-1-9891 TRAVIS COUNTY COURTHOUSE
P. O. BOX 1748
AUSTIN, TEXAS 78767
FAX: (512) 854--9780

July 3,2014

Mr. Ted A Ross Mr. Jose A. Perez
Assistant Attorney General 34 Candle Pine Place
Administrative Law Division The Woodlands, TX 77381
Office of the Attorney General Via Email: theaesculapius@gmail.com
P.O. Box 12548
Austin, Texas 78711-2548
Via Facsimile: (512) 457"4674
and Via Email to:
ted.ross@texasattorneygeneral.gov

Re: Cause No. D-I-GN-14-001172; Jose A. Perez us. Texas Medical Board; in the
53rd Judicial District, Travis County, Texas

Dear Mr. Ross and Mr. Perez:

The Court has received from Mr. Jose A Perez the attached "Motion to
Adjudicate the Pending Motions by Written Submission". Accordingly, the
Court would like to first adjudicate the Defendants' Plea to the Jurisdiction via
written submission. At this time, the Court's review will be SOLELY limited to
the plea to the jurisdiction.
Defendant is requested to submit any further briefing or materials that
Defendant wishes the Court to review on the issue of the Plea to the Jurisdiction
by 5:00 p.m. Thursday, July 31, 2014. Plaintiff is requested to submit any
responsive pleadings or material on the issue of the plea to the jurisdiction no
later than 5:00 p.m. Thursday, August 28, 2014. After receiving a copy of
Plaintiff's response, Defendant may file a reply to that response, but no later
than 5:00 p.m. Friday, September 12, 2014.
In addition to filing your briefing on this issue with the District Clerk's office,
please provide courtesy copies to the Court via facsimile to (512) 854-9780, or via

61
email tomystaffattorneyatkaty.gallagher-parker@co.travis.tx.us. After all
briefing has been received, the Court will consider this matter via written
submission and the Court's Order will be forwarded to the parties.

Please let my staff attorney know if you have any questions.

Sincerely,

Darlene Byrne
Judge, 126th District Court
Travis County, Texas

Katy Gallagher Parker
Staff Attorney, 1261h District Court
Phone: (512) 854-4915
Fax: (512) 854-9780
kat\' .gallagher-parkeriIJco. travis. tx.US

xc: Ms. Amalia Rodriguez-Mendoza, District Clerk

62
Revised - 09109110) FOR SOAH USE ONLY (req.fml)
pale comple" raquaet recetved by SOAH: Proceeding dele Nt by SOAH: 60AH Docket Number& type of case:

10-26-11 S03-12-1940.PA

PLEASE CHECK ACTION REQUESTED:""
o SETTING OFHEARING ~ ASSIGNMENTOF ALJ * 0 ALTERNAnVE DISPUTERESOLUOON(ADR}lMEDIATON*
AGENCY'S
REFERRING AGENCY NAME: Texas Medical Board AGENCY NO.: 503 FILEICASE NO.: :...P.:..,:A,_,~O..,.0:....:.1.:o:.31
_
NAMEISTYLE OF THE CASE: In the Matter of the Complaint Against Jose A Perez, PA
DATE APPLICATION FILED AT AGENCY: 10/2612011 DOCKET NO. SUFFIX, if applicable: '-P.:..,:A.__ _
PROCEEDING DATE{S) REQUESTED (Include range of dates If possible): _

EXPECTED NUMBER OF HOURS (If less than a day) OR OAYS NEEDED FOR PROCEEDING: __ HOURS =2__ .DAYS

o ADMIN. RNE 0 GRIEVANCE 0 ENFORCEMENT 0 CONTRACTCLAIM (Gov'tCode 2260) 0 OTHER _

SPECIAl..NEEDS OR ACCOMMODATIONS: _

IF ADR REQUESTeD PLEASE DESCRIBE PROCESS NEEDED: _
o PREHEARING CONFERENCE REQUESTED 0 INTERPRETER NEEDED(See 1 TAC §155.407)
o CASE ALE 0 HEARING IS CONFIDENTrAL (Specify applicable statute):
and/or _

b.state.tx.us

PARTIES AND REPRESENTATIVES
PARTY REPRESENTED BY: 0 SELF [8J ATTORNEY PARTY REPRESENTED BY: 0 SELF I8J ATTORNEY
o OTHER. If so, relationship: o OTHER, If so, relationship:

REPRESENTATIVE'S NAME: Lee Bukstein REPRESENTATIVE'S NAME: Jose A Perez,PA
PARTY'S NAME: TEXAS MEDICAL BOARD PARTY'S NAME: Jose A Perez, PA
ADDRESS: 333 GUADALUPE, TOWER 3, SUITE 610 ADDRESS: 10223 Broadway, Suite 504
Austin. Texas 78701 Pearland, TX 77584 C>·
...~.~

PHONE No : 512-305-7079 PHONE No.: 281-746-4949
(Direct Phone Number Please) (Direct Phone Number Please)

Email Address:fee.bukstein@tmb.state.bc.us EmaU Address: theaesculaplus@gmall.com

FAX No.: 512-305-7007 FAX No.:

PLEASE LIST ADDITIONAL PARTIES AND/OR REPRESENTATNES ON EXTRA FORM PROVIDED.
SEND TO: STATE OFFICE OF ADMINISTRATIVE HEARINGS
AnN.: DeputyClerk PostOfficeBox 13025
WilliamP. ClementsBuilding OR Austin. Texas78711-3025
300 West 15th Street. Suite504 DocketingPhone No. (512) 475-3445
Austin,Texas78701 Fax No.(512)322-2061
·PLEASE FORWARD A COpy OF THE APPLICATION, APPEAL, OR COMPLAINT WITH THIS REQUEST FORM, AS WELL AS ANY
OTHER PLEADING FILED IN THE CASE TO DATE IF REQUESTING ASSIGNMENT OF AU or AL rEBNATIVE DISPUTE RESOLUTION
(ADR)IMEDIATION, A COpy OF THE NOTICE OF PROCEEDING MUST BE FORWARDED TO SOAH AT THE SAME TIME IT IS MAILED
TO THE PARTIES.
 SOAB DOCKET NO. SOJ-12-1940.PA

TEXASPHYSICIAN ASSISTANTBOARD, § BE~RETHESTATEOFnCE
Petitioner §
§
v. § OF
§
JOSE A. PEREZ, P.A.-C, §
Respoadent § ADMINISTRATIVE HEARINGS

ORDER NO. 14
ORDER DISMISSING CASE

This matter came to be heard on April 24, 2013, before Administrative Law Judge (AU)
Catherine C. Egan. Staff Attorney Lee Bukstein appeared on behalf of the Texas Physician
Assistant Board. Respondent Jose A Perez, P.A-C did not appear and was not represented at
the hearing. After admitting and reviewing Staff's Exhibits 1-6, the AU found that Staff
provided adequate notice to the Respondent of the hearing, the AU granted Staff's Motion for
Default,'

Therefore, it is ORDERED that this matter is DISMISSED from the State Office of
Administrative Hearings docket on a default basis. Tex. Admin. Code § 15S.50I? The file is
being returned to the Board for informal disposition on a default basis. Tex. Gov't Code
§ 2001.056.

SIGNED May 8,2013.

I Staffs Exhibit 6 is the Notice of Hearing dated March 19. 2013. sent certified mailing to Respondent at his last
known address. and was signed for on behalf of Respondent on March 21. 2013.
:1 The ALJ only reviewed the adequacy of the notice and not the sufficiency of the factual allegations.