### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 18
- 00817
- CV

Appellants, Scott Freshour, Margaret McNeese, Timothy Webb, and Sheri f Zaafran, M.D.,

in their Official Capacities as Officers of the Texas Medical Board// Cross
- Appellant , Robert W
. Van Boven M.D., D.D.S.

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

FROM THE 353RD DISTR ICT COURT O F TRAVIS COUNTY, NO. D
- 1
- GN
- 17
- 005957, THE H ONORABLE DUSTIN M. H OWELL, JUDGE PRESIDI NG

M E M O R A N D U M O P I N I O N

The dispute underlying this appeal arises from a disc iplinary proceeding brought by the Texas Medical Board (the Board) against a ppell e e R obert W. Va n B o ven , M.D., D.D.S

. Although the proceeding result ed in a final order that dismissed the complaint against him , Dr.
Van Boven filed suit against Scott Freshour , Mar g are t M cNeese, Timothy Webb, Sheri f Zaafra n , Amy Swanholm , and Ch ristopher P a lazo l a ( colle c t i vely , the Board Defendants) , in their official capacities as officers of the Board , contending that they committed ultra vires acts when reporting the ou t come of the proceeding to the National Practitioner Da ta Ba nk

. The B oar d
De fend ants sub seque n tly f i le d a plea to the jurisdiction asserting that Dr. Van Boven ’ s claims were barred by so ver eign immun ity, which the court granted as to some of the B oard D ef end ants2

but denied as to others. This interlocutory appea l and c ross
- app eal foll owed. See Te x . Civ

. P rac.
& Rem . Code § 51.014(a)(8)

. Because we conclude that Dr . Van Boven ’ s claims are barred by sovereign immunity, we reverse th a t portion of trial cou rt ’ s order denying the plea to jurisdiction
and affirm that p ortion of th e o rd er g ranting the p l ea to th e jurisdiction.

BACKGROUN D Administrative Proceedings and I nitial Report to the National Practitioner Data Ba nk In 2015, the Texas Medical Board re ceiv ed two separate c omp laints f rom patients
of Dr

. Van Boven alleging that he had enga g e d in inappro pri a te co ndu c t while p e r form i ng a
medical exam ination

. F ollowing a n expedited hearing , a three

- member di sciplinary panel from
the Board placed a temporary re striction on Dr. Van Boven ’ s license to p r actice m edicine in
T exa s
. Se e Te x. Oc c. Code § 16 4.059( b ) ( temporary suspensi o n or r estriction of license). The
restri ction p rohibited Dr. Van Boven from treating female patients , and the order imposing the
restriction st ated that it would “ re main in effect un ti l

. . . supe rse ded b y a s ubs equent Order of
the Bo a r d. ”
In March 201 6 , t h e Boar d reported the temporary restriction on Dr. Van Boven ’ s
license to the Nat iona l Practi tioner Data Ban k ( NPDB ). Authori zed by the Health C are Qu alit y
Im pro vement Act of 1986, 42 U .S.C. § § 1 11 01

- 52, a n d ad ministered b y the Unite d States Departmen t of H e alth and Human Services, the NPDB collects a nd maintains “ information
relat ing to the professional compete nce and conduc t of physic ians, dentists, and othe r health care
pract itioner s. ” 1 S ee 45 C

. F .R. § 6 0.1. In part, t he A c t seek s t o prevent “ in co mpet en t ph ysicians

1 Although the Act d oes n ot e xpressly call f or th e cr eation of the NPDB, it does direc t the Sec retar y t o pro mulgate re gulations providin g for t h e r ep orting o f ph ys i cian information ; the “ d isclosure o f [ rep orted] information , up on request to the ph y sicia n o r prac ti t ioner ” ; and3

[from moving] St ate to State without discl osure or dis covery of the physician ’ s previous damaging or inco mp etent performance. ” See 42 U.S.C. § 11101(2)

. I n f urtheranc e of this obje cti ve , each s tate medica l bo ard is re quired to report t o t h e N PDB when ever it “ revokes or

susp ends (or otherwise restricts) a physician ’ s license or censures, rep rimands, or places on probation a ph ysician , for reaso ns relat i ng to the ph ysici an ’ s professio nal competence o r
p r o fes sion al conduc t. ” Id . § 1 1 13 2 ; see id

. § 11151 (2) ( defini ng “ Board of Medi cal Ex aminers ” )

. Information r eported to the NPDB is considered confident ial but may be provided , under limited
circums t ances, t o ot her l icensi n g b oards, ho spital s , and other health care entiti e s
. See id

. § 11137 (a), (b )

. P ublished gui dance from the NPDB ou tlines four types of reports that a state
medical board , in certain cir cumstances, should file with th e NPDB: (1) an I n i tial

- A dverse

Acti o n R eport ; (2) a R evision

- to

- Action Report; (3) a Correc ti on Repo rt; and (4) a V o id R eport.
See id. § 11 1 34 (providing that infor matio n reported under Act “ shall be reported regularly . . .
and in such form and manner as the Secretary pr e s crib es ” ) ; see also id. § 11137(c) (providing

t hat “ no person or entity .

. . s hal l be hel d liable with respect to any report made . . . without
knowled ge of the falsity of the information co ntained in the report ” )

. In this c ase, t he Board reported the temporary re st riction on D r
. V an Boven ’ s license t o the NPDB a s a n Initial

A d vers e
- A ction Re port.

T he Board later filed a for mal complaint against Dr. Van Boven with th e State
Office of Admini s t rative Hearin gs (SO AH) , an d a four

- day hearing on the compla in t was held
b e fo r e an a dministrative law j udge (ALJ)

. See Tex. Occ. Co d e § 16 4.0 05

. O n S eptember 1 5,
201 7, t he ALJ issued a prop osal for decision concluding that the Board “ failed to prove , by

pr o c edur es in the case of disputed accuracy

. S ee 42 U.S.C. § 1 1 136. Pu r su a nt to th is di r ective, t he Sec retary has promulg ated reg ul a ti ons esta bli shi n g the NPDB . 45 C. F.R. § 60.1

.4

prepon d e rance of the evid ence, tha t Dr. Van Bove n [was] subj ec t to sanction. ” On December 8, 2017, the Bo ar d issu ed a “ F inal O rder ” tha t a dop ted the ALJ ’ s find i ngs of fac t and conclusi ons
of law and stated , “ This matter is h ereby dismissed

. . . . This Ord er supersede s the O r der of
Te mporary R estriction issued on Fe b ru ary 29, 2016 , a nd [Dr. Van Boven ’ s ] license to practi ce
medicine in Tex as is no longe r restrict e d. ” See id. § 164.007 (a) ( providing that after receiving
ALJ ’ s findings of fact and conclusions of law, “ the board shall dispose of the contested case by is su i ng a final or d er based on the [ALJ ’ s] findi ngs of f act and conclusions of la w ” ) ; see also
22 Te x . Admin. Code § 187.37(a), (b ) ( Texas Medical Boa rd , F inal D ecisions and O rders, ).

Follow

- up Report to the NPDB

At the center of this di s pute is the report made by the Board to the NPD B
info rming it of the Fin al Order

. 2 See 45 C.F

. R. § 60

. 6(b) ( provi d ing that entity “ which reports
inf or mation on lice nsure ” “ must also report any re vision to the action originally reported ” ). T he
Board submit te d its Dec e mber 2017 report to the NPDB a s a R evision

- to

- A ction R eport , and in

t he r epor t st a ted :

On De cember 8 , 2017, the Boa rd entered a Final Ord er regarding [Dr. Van Boven], dismissing th e Board st aff ’s com plai nt. The action was based on the f in dings of a n [ALJ ] at [ S OA H ] . This Order reso lves a formal complaint filed at SOAH. T he O rde r su p ersedes all previou s orders.

The next day Dr. Van B oven informed the Board in writing that he di sa gre ed with
its d ecision to submit a R evision

- t o
- A ction R epo rt and arg u ed th a t the Board should have

2 I n his appellate br ie f , Dr. V a n Boven complains , i n par t, tha t the Board “ un i late rally issu [ed] a ‘ mod ified ’ ord er instead of a Decision. ” Wi tho ut expre ssing any op inion on the merits of this ar gument , w e w ill ref er to the Board ’ s act ion on the ALJ ’ s prop osal for decision as a
“ Final Order ” because th e doc ume nt is titled as s uch i n th e appellate record.5

s ub mitted a V oid R eport instead

. In hi s lette r, D r. V an Boven asserte d th a t he had been completely exonera ted by the ALJ ’ s decision and by the Board ’ s subsequent F inal Orde r adop ting that decis ion

. D r . Van Boven r ea son ed th at , as a r esult of the decis i o n , any r e cord of
the underlying di sciplin ary p rocee ding s aga ins t him should be removed from his disclosable
NPDB record

— inclu ding any r ecord of the Board ’ s decision to t emporari ly rest rict h is lice ns e

— which c oul d only be accomp l is hed by the submission of a V oid R epo rt

.

The Board responded to Dr . Va n Bove n ’ s wr i tt en complaint an d informed him it disagreed with his ass ertio n that it should hav e submitted a Vo id Report and not a R evision

- to

Action R eport. Th e Board e xplaine d i n a l etter to Dr. Van Bov en that the NPDB ’ s r ules and published guida nc e re q uire i t t o su bmit a Revis i on
- to

- Action Re po rt any time it “ modif ies an adverse action prev iously reporte d ” to the NPDB and that, in th i s c ase , the Board ’ s Final Orde r
modified t he p rev iously reported temporary r estriction on his license

.

D r. Van B oven also con t acte d the NPDB abo u t t he Board ’ s failure to submit a Void Report , invo k ing the NPD B ’ s dispute res o lution proces s
. Upon reviewing materi als and

a r g uments su bmi tted by the par ties , the NP DB notified the Board that “th ere is a fi eld in the
R epo rt t hat requi r es a correction

. ” Specifically, the NPDB recommended that the Board re word
its desc ription of the action taken and “allow t h e n arrative to refl e c t the comp let e record. ” In short, the N PD B recommended that the Board modify i ts Revision

- to

- Ac tio n Report t o mor e
accuratel y r e flect tha t the F inal Order states that the ALJ found that Board staff had failed to

pr o ve the allegations rai se d by the pa t ients ; t hat the AL J c oncluded that t he Board s ta ff
had failed to prov e that Dr. Van Boven w as subject to san ction s ; an d that the Boa r d ad opted
all of the ALJ ’ s findings of fact and concl u sio n s of l aw. Th e NPDB also directed the Boa rd to
include i n its corrected R eport : “ Th e m atter regarding Dr. Van Bov en was d ismissed and the6

December 8, 2017 Final Ord er su pers eded t he F ebruary 29, 20 1 6 Or der of Temporary
Re striction and Dr. Van Boven ’ s l ice nse to practic e medicine in Texas i s no lo nger restricted. ”
The Board subsequen tly submitte d a corrected Revision

- t o
- Action Report , following the
NPDB ’ s recommen dat i on.

I n A pr il 2 018 , t he NPDB iss u ed its “ Dispute R e sol ution D ecision ” based on the
Revision

- t o
- Action R eport as corrected. In i ts written de cision, the NPD B rejected D r. Van
Boven ’ s a rgument t hat the Board had failed to co mply with NPDB

- reporting requi reme nts when
i t fi le d a Revision

- to

- Act ion Report and n ot a V o id Rep or t

. A cc ording to the NP DB ’ s decision ,

a Vo id Report “ is app ro priate whe n a n action is ove rturned or v ac a ted ” and effectively acts as a

“ with drawal of a r eport in its entire ty

. ” I n contrast, when a fi na l action is t ake n t h at “ modifie s an adverse action previously reported to the NPDB , ” a reporting me dical board s ho uld file a
Re v ision

- to

- Act i on Report

. Relying on the language o f the Fin al Order , the NP DB c oncluded
that it “ was the in t entio n o f the Boar d to mo d i fy the restr i ction on [Dr. Va n B oven ’ s] lice nse,

not overturn or va cate the [temporary restr iction order ] a l l togethe r , ” a nd that “ [p] u rs uant to the regulatio ns that govern the NPDB, the Board was legally required to file the Rev ision to Action
Re po rt

. ” In reaching t h is conclusion, t h e NPDB emphasiz ed that it could not su bstitute its judgment for th at of the B o ard , that it wa s the Board ’ s “ intention and author i ty t o modify the
Initial Order based on a decision of SOAH by re ins tat ing [Dr. Van Boven ’ s ] l icense , ” and tha t
the “ NPDB dispu te process is not a mech ani sm to appeal the Board ’ s decision. ”

S ubsequent Sta te Law suit

U n s atisfi ed wit h Board ’ s re sponse t o his complaint to the R evision

- to

- Actio n Report and wi th the NP DB ’ s decision, Dr. Van Bo ven amended his previou s ly filed suit in7

distr ict court to seek a declarat ory jud gment that t he Final Order “ c on stitutes a n ove rturning of
its Initi al Action/Order ” a nd that the Board was required to submit a V oid Report to th e NP DB

. 3

Dr. Van Boven also r equ e s ted mandamus and in j unctive relief that would r equire th e Board
Defendants to withdraw th e R evision

- t o
- A ction Re port and to submit a Void Repor t

. In re sp on se,

t he B oard Defendants filed a plea to the jurisdiction asserti ng that D r. Van Boven ’ s suit w as
b a rred by sove reign i m munity

. In response to the plea , Dr. Van Bo ven all eged t hat his suit was
not bar red by sove r eign immunity because his c laim s are based on the Bo ard Defendants ’ ultra
vires acts , a recognized exceptio n to immun ity.

F ol lowi ng a he arin g , the trial court d e nied Dr. V an Boven ’ s re ques t for a

t empo rary injunc t ion , granted the d efendants ’ ple a to the jurisdiction with respect t o t wo
defendant s (Palazol a and S wanholm) , and denied the defendants ’ plea to the jurisdic t ion with

respe ct to t he o t her four defendan ts

. T ho se four defendants (Freshou r , McNe ese, We bb, a nd Zaafran) now ap peal from th e t r i al cou rt ’ s denial of the ir plea to t he jurisdic tion

. 4 Dr. V an
Bo ven cross
- a ppeals from the court ’ s grant of the pl ea to the jurisdiction with re spec t to t he tw o

3 On Oc tober 25, 2017, a ft er the ALJ iss ued his pro posal for decision but before the Board is sued its Final Order, Dr. Van Bov en filed this suit in di strict court, r epresenti ng himself pro s e. In his ori g i nal pe tition, Dr. Van Bo v e n sought “ emerge ncy relief by de claration of the Court to nulli fy a Temp ora ry Restrict ion void of autho rity of Admini stra tive law b y the Board. ”

4 According to Dr. Van Bove n ’ s live pleadings , Fres hour “ is the Genera l C ounsel an d forme r Interim Executiv e Direct or of the Texas Medical Board ” ; M cNeese “ is a member of the Ex ecutive Committee ” and “ Chair of the [ Board ] Disc ipli nary Process R e vi ew Commi ttee ” ; Webb “ is the Chair of the Li censure Com mittee of the [ Board] ” and “ a member o f the Execut ive Committe e of the [ Board ] ” ; and Zaafran “ is the Pre sident of the [Board] ” and “ a membe r o f the Executive Committee of the [Board ]. ”8

o ther d e fendan ts (S wa nholm and Palazola)

. 5 Dr. Van Boven al so cross
- appeals f rom the tria l

c ourt ’ s denial of his re quest for a temporary injunction.

Be cause su bject

- matter jurisdiction is a t hr es hold issue , w e first consider the trial

cour t ’ s ruling s on the Bo a rd Defendant s ’ plea to the jurisdic tion

. See Houston Belt & Terminal Ry

. v. Cit

y o f Hous ton , 487 S.W.3d 154, 15 8 (Tex. 2016 ) (noting tha t imm unity implicates subject

- matter jurisdi ct ion and , theref ore, is “ properly asserted in a plea t o the jurisdiction ” )

.

DISCUS SION
S tandard of Rev iew

A plea to the jurisdiction is a d i l at ory plea tha t seek s dismissal o f a case for lack of subject

- matter juri sdi ction

. Harris C ounty v. Sykes , 136 S

. W. 3 d 635, 638 (Te x. 2004)

. The
burd en is o n t he p la intiff to plead or p rese nt evidence of facts th at affir mati vely demonstrate a
trial court ’ s subject

- mat ter juris diction

. See Heckman v. W illi ams on C ounty , 36 9 S.W .3d 137 , 149

- 50 (Tex. 2012)

. Because s ubject

- matter jurisdicti on i s a question of law, we re v iew a trial

court ’ s ru l ing on a plea to the jurisdic ti on de novo. Texas Dep ’ t o f Pa r ks & Wildlife v . Miranda , 133 S .W.3d 217, 22 6 (Tex. 200 4)

. I n conducting this review , we beg in with the plaintiff ’ s l ive pleadi ngs and determine whether the facts allege d affirmat ivel y de monstrate t h e t r ial c ourt ’ s jurisdiction to hear th e ca use
. Mission C o ns o l

. Indep. Sch. Dist . v. Ga rcia , 372 S .W.3d 629, 63 5 (Tex . 2012)

. W e look to the pleade r ’ s intent, construe the pleadings l iberally in fa vor of jur is dic tio n, and ac cep t t h e all egatio ns i n the pleadin gs a s true. Miranda , 133 S .W.3d at 22 7

.

In addition , we may co nsid er relev ant evidence submitted by the parties and must
do so w hen neces sary to reso lve the j uris dictio nal is sue s rais ed

. 6 Bland In dep

. Sch . Dist. v. Blu e ,

5 According to D r. Va n Boven ’ s live pleadings , Swanh ol m is “ a n A ssi stant Ge neral Counsel for the [B oard ] ” a n d Palaz ola is “ the l iti g a tion manager for the [Board ]. ”9

34 S.W.3d 5 47, 555 (Tex. 2000)

. “ O u r ultima te inquir y is whet her the par ticular f ac ts presented,
as d eter mined by the foregoing re view of the pleadings a nd any evidence , affirma tively
dem onst r ate a claim within th e trial court ’ s subject

- matter jurisdic tion. ” B acon v. Texas
Historical C omm ’ n , 411 S .W. 3d 161 , 171 (Tex. App.

— Austin 2013, no pe t.)

.
Sovereig n Im m unity and Ultra Vires

Sovereign immunit y “ shi eld[s] th e pub lic from the costs and consequences of imp rov i dent actions of their g overnments, ” an d as a result , generally pro tect s o fficials f ro m
l iabili ty for erroneous de cisions and mistakes

. Took e v. Ci ty of Mexia , 197 S.W.3d 325, 331

- 32 (Tex. 2006). A bsen t l egis l ative w aiver, s over eign immuni ty dep rives Tex a s c ourts of subject

matter jurisd ictio n over suits ag ainst the State or i ts agencies or su b div isions. Texas Dep ’ t of Transp. v
. Sefzi k , 3 5 5 S.W.3d 618, 6 20

- 21 (Tex. 2011). As a result, “ there is no ge ner al ri ght to challenge or see k review of a state a g e ncy order or de cision in Texas state c ourt , ” B acon , 411 S.W.3d at 171 , a nd l egislati ve waiver s of immunity must be clear and unambiguous , LMV

AL Ventures, LLC v. Texas Dep ’ t of A g ing & D isability Servs. , 520 S .W.3d 11 3, 120 ( Tex.
A pp
. — A usti n 201 7, pet

. deni ed ).

“ [I]n certain n arrow instance s, a suit against a state offi cial can pro cee d even in
the absence of a waiver of immunity if the officia l ’ s action s are ultra vires

. ” Hall v . McRaven ,

6 W he n the jurisdictional issues overlap wi th the m erit s of th e plai nt if f ’ s claim s , t he party asserting the plea to the jur is diction must overcome a tradi tional

- summary
- judgment

- li k e burd en of pro o f

. B ac o n v. Texas Hi storical Comm ’ n , 411 S. W.3 d 161, 171 (Tex. App.

— Austin 2013, no pe t.) ; Univer

sity of Tex. v. Po indext er , 306 S .W.3d 79 8 , 80 6

- 07 (Tex. App.

— Austin 2009, n o pe t.). Under t his standard, w e co nsi der whether the evi dence i n the r ecord raises a fa c t issue, and if it does, the j uris di cti onal issue must be resolved by the t rier of fact. Klum b v. Houston Mun. Em p s. Pensi on S

ys. , 458 S. W.3d 1, 8 (Tex. 2015) ; Texas Dep ’ t of Par ks & Wildlife v . Mi randa , 133 S .W.3d 217, 22 8 (Tex. 2004). Conversely, the t r ial court mus t rule on the plea as a ma tter of law if the evidence is un disputed o r fails to r aise a fact iss ue
. Mirand a , 133 S.W .3d a t 228.10

508 S.W.3d 232, 23 8 ( Tex. 2017). Under wha t is often referre d to as th e “ ultra vires exception ”

to sov ereign immunity, a claim ant may file su it to compel a governme nt offic ial “ to comply with

stat utor y or constit uti onal provisions ” through pros pe ctive injunctive or declara tory relief. City of El Paso v. He in ri ch , 2 84 S.W.3d 3 6 6, 372 (Tex. 2009). Properly plead ed u ltra vires sui ts
do not im pli cate s over eign immunity becau se they do not att empt to exer t control o ver the s tate but, instead, attemp t to reassert c on tro l of th e state over one of i ts ag en ts

. Id. Consequ ently,

u lt r a vires claim ants are limited t o prospective declarato ry or injunc ti v e reli ef restra ining ultra
vires conduct , and monetary clai ms are generall y barred . Id

. at 37 4

- 77

. To fall within the u ltra vir es exception , the plainti ff m ust “ alle ge, and ulti mately

p rove, that the officer acted w it hout legal aut hori t y o r fail ed to per for m a pu re ly ministerial act. ”
Id. a t 372

. “ [M] in iste ria l ac ts ” are those “ where the law prescribes a n d defin es the du ties to be performed with suc h pr ecis ion and certa inty as to leav e nothing to the ex ercise of dis cr etion or judgment. ” McRaven, 508 S.W. 3 d at 238

. Conversely, d iscretionary acts are t ho se t hat require
the exer cise of judgment and personal deliberation. S outhwes tern Bell Tel

. , L.P. v. E mm et t , 459 S.W.3d 578, 587 (Te x. 2015). While “ immunity bars su its complaining of an exerc ise of
ab solute discretion, ” “ a gov ernment office r with so me d iscretion to interpret and apply a law

m ay nonetheless act ‘ wit ho u t legal auth ority, ’ and thus ultra v i res, if he exceeds the bou nds
of his granted au t hori ty o r if his acts con f lict with the law it self

. ” Houston Belt , 487 S.W.3d

at 15 8

. “ C onv ersely , if t he p lain tiff alleges o nly facts demonstrating acts within the off icer ’ s legal authority a nd discretion, the c laim seeks to co ntrol stat e a ction, and is barr ed by

sover eign immunity. ” Creedmo o r - Mah a Wate r Supply Corp. v. Texas Comm ’ n on Envtl. Quality,
307 S.W.3d 505, 5 15

- 16 (Tex. App.

— Austin 2010, no pet.)

. “ [M]erely asserting leg al conc lusions
or labelin g a defendant ’ s action s a s ‘ ultr a vires, ’ ‘ illegal, ’ or ‘ uncons t it utional ’ does no t suffice to11

plea d an ultra vires claim

— what matters is whether the fac ts alleged constitute actions beyond the governmental a ctor ’ s st at utory auth o ri ty, properly construed

. ” Te xas Dep ’ t of Tra ns p. v.
Su ns e t Transp., I

n c. , 357 S.W.3d 691 , 702 (Tex. App.

— Austin 2011 , n o pet. ).

Analysis On appeal, t he Bo ard Defendant s arg ue that the trial court erred in denying their plea to the jurisdic tion because the pleadings and evid ence fail to show t hat the Board
D efendants committed an ultra vi res act. In re sp o nse to the ple a to t he jurisdic tion , an d n ow on
appe al, D r. Van Bo ven con ten ds , i n part, that his suit allege s that the B oard De f endants

c ommitted ultr a vires acts when they “ fa iled to per form the ir ministe r ial task o f submitting a
Void R eport to the [NPD B] and ther e by inform ing the medical community and the p ublic t hat
the tem porary sancti on impos ed a gainst Dr. Van Boven has been voided by the [Board ’ s] Fina l
Order. ” D r. Va n Bo ven e m phasizes that the NPDB ’ s published guidanc e provides th at a Void Report is appropr i a te when a n “ action [is] overturned on ap peal ” and t hat , in his view, the p lain language a nd legal effect of the Board ’ s Final O rder is that the t empo rary res t rict ion pre viously imposed by the thr e e
- me mber panel was overtu rned o n appeal by the A LJ.

Conver sel y, t he Boar d Defendants argue that the Board did n ot have a ministerial duty to subm it a Void Report following the issuance of t he Final Order and point to NPD B ’ s
pu blished guidance

— in particu l ar, the f ollowing sta tement :

S ummary o r Em ergency Susp ens ion an d Othe r Nonfinal Actions The requirement s fo r report ing State licen sure and cert ificat ion actions are not limited to final act ions . Interim and nonfinal adv er se actions taken by a State lic e nsing or certificatio n authorit y also must be reported to the NP DB. E xamples of such actions include a S ta te ’s summa ry or emergency suspension o f a license.

. . . O nce a final actio n is taken th at su perse des or modifi es the in itial action, the12

S t ate li c e nsing or c ertif

ication auth orit y must submit a Revision

- to

- Act ion R epor t.

The Board Defendants reason tha t th e Final Order only su persed ed or mod ified Dr. Van Boven ’ s previously orde red temporary sus pension and that unde r t h e NPDB ’ s pu bli shed g uidance , t h e

term “ overturned on appeal ” i s limited t o si tuations whe re an act ion is overturned by a j udicial
decision , w hich did n ot occ ur h ere.

T he parties dedicate much of their appellate brie fing to t he issue of whether the
Boa rd ’ s decision to submit a Re v isio n
- to

- Action Report was a correct decision an d in accorda nce with NPDB rules and published guidance

. However, the fact that Dr. Van Boven disagrees with
the Board ’ s interpretation of NPD B rules and p ublished guidance do es n ot mean that the Board
acted ultr a vires in applying that interpr et ation. See L MV

- AL Ventur es , 520 S.W.3d at 126. A

co gn izable ultra vire s claim m ust c hallenge the g overnment official ’ s auth o rity to decide , no t
wheth er the offici al made an incorrect dec ision. Hono rs Acad

. , In c. v. Texa s Educ. Age ncy , 555 S.W.3d 54 , 6 8 (Tex. 2018 ) ( “ ‘ U ltra vi res clai ms depend o n the s co p e of the state official ’ s

au th or ity, ’ not the quality of the official ’ s deci sion. ” ( qu oting McR a ven , 508 S.W. 3d at 238 ) )

.

“ I t is no t an ultra vires a ct for an o ffic ial to make an erroneou s decision with in the autho rity granted

. ” Id. at 68 ; s ee Houston Belt , 487 S .W. 3d at 158 ( “ [W]hethe r a suit atta cking an exercise
of l imited discretion will be ba rred is d epen d ent upon the grant of a utho rity at issue in any part icul ar cas e
. ” ). Therefo re, we begin ou r a n aly sis of Dr. Van Bo ven ’ s claims by determining
the s cope o f the Boar d ’ s authority as it r elate s to NP DB

- r e porting req uirement s
. That is , we
examine wh at di scr etion , if any, the Board Def endant s ha d to report to the NPDB t h e Final
Order dismissing the Bo a rd ’ s d i sciplinary action agains t Dr. Van Boven by fil ing a Revision

- to

Action Report

.13 Th e issue presented here is si m ilar to tha t presented in H all v . Mc Raven , 5 08 S.W. 3 d at 23 4

- 4 2

. In McRaven , a r egent for the Uni versit y of Texas System sued Ch ancell o r
William McRaven for refusing to gr ant the r egent access to record s containing s tudent

admi ssions informa tion

. Id. a t 2 34

. McRaven asserted that th e record s we re pr otected from
disclo sur e un der the Family Educat ion a l Righ t s and Pr ivacy A c t (FERPA). Id. at 236; see generally 20 U.S.C. § 1232g (FERPA)

. On appeal, the T exas Su pre me Court cons idered , in part ,

“ whethe r McRaven ’ s alleged mis interpretation of [ FE RPA] cons titute [ d ] a n u lt ra vires act. ”
McRaven , 508 S.W .3d at 24 0

- 41. T he S upr em e C ourt began it s jurisd ictional an alysis by

ex amining the scop e o f McR aven ’ s enab ling authori t y, which t he court e mphas iz ed was supplied by a rule adopted by the Regent s and not by FERP A

— a f ede ral law “ collatera l to McRav en ’ s

aut hority

. ” Id. at 242. T h is rule st ate d tha t “ the Chancellor, in consultation w ith the U.T. Syst em General C ounse l, shal l determine whether State or fe deral law restricts co mpliance with the
request [and] shall determ ine whether a R e gent may review informat ion that is prote cte d b y [ F ERPA]

. ” Id

. at 236

. Based on this b road and otherwise unconstr ained authority, the court
concluded that Hall ’ s compl ai nt regarding McRaven ’ s exer cise o f his discretion to interpret and

ap ply FERPA failed to establish a valid u l tra vires cla im. Id. at 243. “ W hen th e u l ti mate and

u nr estraine d objective of an official ’ s du ty is to inter pret collateral law, a misi nter pre tation i s n o t overstepping such authority ; it is a comp liant action even if u ltimately erro neous
. ” Id. at 242.

H ere, i n Ch apter 1 64 of t he Oc cupatio ns Co d e, th e Legislature has gr a nted the
Board th e exclusive author ity to d is cipline medical licens e hold er s and has set the param eters of
th at authority. See Tex. Occ. Code §§ 164.001

- .206. In part, the Oc cupations Code requires t hat
the Boar d r epo rt any d is c ipli nary action taken agains t a physician to “ the United States Secretary
of Healt h and Human Servic es
. ” Id. § 164.060

. The Code does not place any ministeria l duty on14

the Board with res pec t to w hat or how it mu s t report to t he NPDB

— only th at i t must rep or t “ an y
dis ci plina ry action , ” which t he undi s puted f acts show tha t the Board did here

. Si m i l arly , the Legislatur e has not i mposed any ex press limitation on th e Board ’ s au thority to report t o the
NPD B and has n ot placed any co nstrain t on the Bo ard in d ete rm ining h ow a n d what informat ion it must repor t

. Eff

ectively , the Leg islature has t asked t he B oard with interpreting and applying
fede ra l law in carrying out i ts statutory duty to report dis ciplinary acti on s to the NPDB

. 7
The refore, we c onc lud e that th e Board did not have a minist er ia l duty t o submi t a Voi d Report to
the NPDB under it s enabling a uthority , an d to the extent D r. Van Boven co mplains that t he
Board exceeded its legal au thority b y misinte rpret ing a nd misappl ying co llateral fed era l l aw ( na mel y, the Heal t h C are Qu alit y Im pr o vement Act , NPD B rules , and NPDB p ublished guidanc e ), he has f

ailed to al l ege a v alid ultra vires claim. See McRave n , 508 S.W.3d at 242. On appeal, Dr. Van Bove n argu es that McRav en is not d isp o sitive of h is sui t
because hi s u ltra v i res claims are base d on more than just alleg ations that the Board faile d to comply with a ministerial duty under NPDB ru les an d guidance to submit a Void Repo rt

. A lthough not entirely clea r from his ple adings bef o re the tria l court , Dr. Va n Bov e n characte r izes
his challenge as including a complaint that t he Board ’ s treatmen t and representation of the ALJ ’ s
decis ion , and its Fi nal Ord er adopting that dec ision , as a “ reinstatem ent ” of his license or

“ modif ication ” of th e rest r ic tio n on his license con flict s “ with state law and B oard Rules

. ”
L ib erally construing Dr. Van Bov en ’ s pleadin gs , including his brie fing to this Court , we interpr et
his claim t o be that (1 ) there is no legal a uth orit y under state law t hat would all ow the Board to

7 Similarly, by rule , the B oard has provided that it “ wi ll r eport a dis ciplinary a ction t o the NPDB acc ording t o applica ble federal rules and s tat utes. ” 22 Tex. Admin. Code § 187.5 (Texas Medical Board, Na tional Practitioner Data Bank (NPDB) ).15

construe the Final Order as a “ re in stat e me nt ” o r “ modification ” of Dr. Van Boven ’ s previously

re stri cted license , and (2) by doing so, t he Board Defendants have effectively imposed an adverse or neg ati ve s anction on D r. Van Bov en, despite t he fac t that the Board has no auth ori ty

t o impose a sancti on without a n express finding t h a t he committe d a punishab le violation

. 8 S ee ,
e.g
. , Tex. Occ. Code § § 164.051 (ground for denial or dis ciplinary ac tion) , .052 (prohibited

p rac tices by p h ysician or license applica nt ) , . 1 51

- . 1 54 ( license r e in sta tement upon applicati on );
b ut see id. § 1 6 4.007 (a

- 1) (statin g that “ the board has the sole author ity and discreti on to determine the appropriate actio n or sanction, and the ad ministrative l aw ju dge may not make a ny
recommendat ion reg arding th e a ppro p r iate a ction or sa nction ” ).

Ba sed on the relief sought by Dr. Van Bove n, w e conclude that his allegations

co ncerni n g the Board ’ s treatment of the ALJ ’ s decision and of the Board ’ s Final Or der fail to

cons titute a valid ultra vires claim. In Dr. Van Bo v en ’ s view, the AL J ’ s decision is equival ent to

a fact ual det er mination that Dr. Van Bo ven d id not engage in any s an ctionable conduct and t hat
the temporary rest rictio n should ne ver have been pl aced on h is lic ense , i .e. , a n exoner ation. Dr.
V a n Bo ven reas o ns that the Board Defendants ’ fail u re to treat the Fina l Order as anything short
of an exoneration for purpo se s of NPDB r e porting is ultra vires c onduct

. The only prospective
relief sou ght by Dr. Van B oven , however , is an injunction and order requiring t h e Board to

8 In his appellate brief , Dr. V a n Boven ass erts that “ the mos t signifi cant ultra vires act o ccur red when [the Board Def e n dant s] conver ted a Board Final ‘ Deci s ion ’ into a ‘ Modified ’ or
‘ Revi sed Disciplinary Order. ’ ” S econd , Dr

. Van Boven argues t hat the Boa rd Defendants committed an ultra vires act b y “ portraying t h e SOAH decision as a ‘ Reinstatement ’ of Dr. Van Boven ’ s Li c e nse or ‘ m odifie d ’ Adverse Acti on/Disc i p linary Order to the NPDB. ” Thi rd , Dr. V a n Boven compl a in s that t he Board Defendants “ committed u ltra vires acts by asserting that the Tempo r ary Order impo se d an adverse action or negative san c tion on Dr. Van Boven d e spite the fact that i n the en d , Dr

. V a n Bo ven was not subject to any sanction

. ”16

submit a Void Report to the NPDB

. 9 T h erefore, w ith re spect to D r. Van Boven ’ s allegations
concerni ng the Board ’ s treatment o f the F inal Order as a “ reins tatement ” or “ modific ation ” of his
li cense, t h e qu estion i s wh ether t he Board ’ s decision t o submit a R evisio n
- to

- Action Re po r t ( and not a Void Repor t ) c onflict s w ith the Board ’ s enabling auth ority

. Se e McRaven , 508 S.W.3d

a t 242 (noting that q uestion was “ whether McRaven ’ s al legedly mistaken interpretat i on of

co lla ter al law was neve rtheless in violation of hi s enabling authority ” ). A bsent a clear li mita tion
in the Occup a tions Code on the Board ’ s a utho rity to determ ine the legal effect of the F inal Order
as it relates to NPDB reporting requir ements , we c a nnot con c lu de Dr. Van Boven h a s a sserted a valid ultra vir es claim b ased on the Board ’ s decision to trea t the Final Order as a “ reinstatement

. ”
Id. ( exp laini ng that u nlike defendant ’ s determinati on in Houston Belt , which was “ su bject to explic it constrain t s, ” McRav en ’ s “ allegedly mis t ak en interp r etation of colla teral law ” was not
in violation of his en a blin g auth ority because no c onst rain t was placed on h is discretion to determine FERPA protection s )

. Dr. Van Boven has not cited , and we have no t found, any such

stat uto ry constraint

.

Fin ally, in hi s cross
- appeal , Dr. Van Boven contends that the trial co urt erred in granting the plea to the jurisdiction wi th respect to two Board Defendants, S wanhol m and
Pal azola , both of whom are staff attorn eys for the Boa r d but are not Board members o r officers.

9 Dr. Van Bov en also seeks a decla ration that the Board ’ s Final Or der “ constitutes an ove rturn in g of its Initi al Act ion/Order based on internal chal l enge/a ppeal before SO A H a n d that the Defe nd ants sho ul d ha ve issued a Void Report rather than a Revised Report to the NPD B. ” Because this relief is not p rospective in nature , it does not support Dr. Van B oven ’ s ultra vire s claim

. See City of El Paso v. He i n rich , 284 S.W.3d 366, 37 2 (Tex. 2009) (exp laining th at ultr a vires claim s are limited to prospective relief); see also Delk v. Le hmb erg , No. 03

- 12

- 00678

- CV, 20 14 Tex. App. LEXIS 503 3, at *2 (Tex. App.

— A ustin May 9, 2014 , no pet. ) (mem. op.) (concluding t h a t “ while a request fo r d e cla ra tory relief may suppor t an ul tra vires action, ” de claration that defendants violated the cons titution in past was “ purely re trospec tive in na ture ” and barred by sover ei gn immuni ty ).17

Dr. Van Bo ven argues in his c ross
- appellant ’ s brief that his ultra vires suit includes all egations
that S wa nh olm and Palazola engaged in a va r iety of ultra vires act s in their handling of the patient co mplaints a nd that th ese acts le d to t he he aring befo r e the disciplin ary panel and the
tempora ry restri ction placed on his li cense
. See Tex. Occ. Code § 164 .059. Similarly, in his appella nt ’ s brief, Dr. Van Boven also cites to a la undry list of actions ta ken by th e other Board
Defendants prior to the ALJ ’ s d eci sion that , i n his view, constitute ultra vires act s in the investigation and prosecution o f the cla ims in the underly ing d isc i plinary proceedings aga inst
him

. For example, D r. Van Boven alleges that Board st af f failed to investigat e or re f e r allegatio n s of unlawful b ad

- faith reportin g; that Board st aff falsely asserted that Dr. Van Boven

me t criteria d emonstrating that he posed a “ continuing threat to the public he al t h and w elfare ” ;
that h e was denie d the right to pr esent exculpatory evid e nc e and t o pr e sent ph oto graph ic materials; and that staff e ngaged in “ prosecutorial mis conduct ” and “ wi tness tamper ing

. ”

Not all of the allegations that Dr. Van Boven makes now concerning wrongdoin g
in the underly i ng discipli nary p roceeding s appear in hi s live plea di n gs , but e ven if they did and

we were to accept them as t rue , we would conclude that they fail to constit ute a cognizable ultra
vires claim

. The se allegations re late to and question the validity of the temporary

- r e stric tion
order , the ALJ ’ s d ec ision , an d t he Final Or d er
. Dr. Van Bo v en does not seek any specifi c relief
from these or ders and decision , and he does not seek any relief from Swa nholm or Palazola

. More over , Dr. Van Boven does not explain , and we fail to see , what prospective equit able
relief would be a vai l able in thi s s uit b ase d on these past acts

. See City o f Arlington v. Randall , 301 S.W.3d 89 6, 907 (Tex . App

. — Fort Worth 2009 , pet

. denied ) (explaining that c ity was
immune from “ a s ui t seekin g imposition of an a ffirma tive duty based on a pa st alleged ac t i onable

w rong ” ) disapproved of on other grounds by Te xas Dep ’ t of Aging and D isability Servs. v.18

Cannon , 453 S.W.3d 411 (Tex. 2015 ) ; s ee als o He inrich , 284 S.W.3d at 373

- 74 ( explaining that

e ve n if ultra vi res claim may be brought, “ th e re medy may implicate immunity ” ).

Dr. Van Bo ven challenges the Bo ard ’ s decision to submit a Revi sion

- to

- Action
report , contending not j ust that the d ecision was err oneous but that it was intent ionally v indic tive
and dama ging to his professional repu tati on. Neverthele ss, h is pleading s fai l to show that it was
outside the scope o f the Board ’ s au th ority to make su ch a decisi on, regardless o f motive

. We
conclude tha t Dr. Van Bo ven has failed to plead a valid ultra vires cla im and , in addition , that the
fac ts pleaded affirmatively sh ow that the trial court lacks subject

- m atter jurisdicti on over
Dr. Van Boven ’ s s uit

. See Texas A&M Univ. Sys. v
. Koseoglu , 233 S .W.3d 8 35, 84 0 (Te x. 2007 ) ( pleader should only be given o pportunity to replead “ if it is possible t o cure the pleading
defec t ” ) ; Creedmoor

- Maha , 307 S.W.3d at 526 (court should not allow party to replead if alleged facts affirmativel y n e gate jurisdic tion). The trial c ourt erred t o t he extent it denied the
Board Defendants ’ plea to the j urisdiction

. Co nversely, the trial court did not err t o the extent it granted the Board Defendants ’ pl ea t o the jurisdi ction. 10

CONCLU S ION
To the ext e nt the tri al court ’ s order granted t he plea to t he jurisdiction to
Swanholm a nd Palazola , we affi rm the trial court ’ s order. To the extent the trial court ’ s order denied the plea to the jur isdict ion as to the remai ning Board Defendants , we reverse the o rd e r

an d rend er judgment dismissing Dr. Van Boven ’ s c lai ms against those defend ants

.

10 Beca use we conclude that the trial cour t lacked subject

- matter ju r isdiction over Dr. Van Bove n ’ s sui t, we need no t decide whether the trial c ourt erred in den yi ng his request for t em porary inj unctive re l ie f , the other issue rais ed in his c ross
- appeal

. See Tex

. R. App. P. 47.1

.19 _________ __________________________ _______ Chari L. Kel l y , Justi ce
Before Justices G o odwin , Baker , and Kelly
Affirmed in P art ; Reversed and Rendered in P art
Filed: January 9 , 2020