No. 03-13-00502- CV

______________________________________________________________________________
IN THE COURT OF APPEALS FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS AT AUSTIN, TEXAS

______________________________________________________________________________ RODERICK LEE MITCHELL, M.D. Appellant,

vs.
TEXAS MEDICAL BOARD, Appellee.

______________________________________________________________________________ Appeal from the 126t h Judicial District Court of Travis County, Texas

______________________________________________________________________________
MOTION FOR REHEARING EN BANC

TO THE HONORABLE COURT OF APPEALS:
RODERICK LEE MITCHELL, M.D., Appellant in this cause, makes this
Motion for Rehearing En Banc of the judgment of a panel of this Court rendered
on April 15, 2015, and in support of said motion would respectfully show the
Court the following:

I.

1. Point of Error: The panel of the Court of Appeals erred in basing its
opinion on the fact that the Appellant attended the contested case hearing below. ACCEPTED 03-13-00502-CV 4916661 THIRD COURT OF APPEALS

AUSTIN, TEXAS 4/16/2015 1:25:40 PM JEFFREY D. KYLE

CLERK2. Argument and Authorities: The fact that the Appellant attended the
contested case hearing below is not an d has not been the issue the Appellant has
sought review in this Court and in the trial court below. The issue is that neither the
Appellant nor his attorney of record, Craig Washington, was properly served with
the Proposal for Decision in time to properl y file any objections to the proposal.
Being timely served is a matter of Due Process under both the United States and
Texas Constitution. Such an error by Administrative Judge Roy Scudday,
concerning service, meets all of the criteria of T EX

. G OV ’ T C ODE § 2001.174.

Pursuant to 1 T EX

. A DMIN

. C ODE § 155.3(g), T EX

. R. C IV . P. 21a must be

harmonized with 1 T EX

. A DMIN

. C ODE § 155.507(b), since service of the Proposal
for Decision was challenged in the trial court and in the Motion for Rehearing

before the Te xas Medical Board.
The panel, in its opinion, has impermissibly shifted the burden of proof
concerning service. This Court is requested to take judicial notice that the Proposal

for Decision does not contain a certificate of service. Once service has been
challenged, the burden is on Judge Scudday and the Texas Medical Board to show
valid service of the Proposal for D ecision . That burden does not shift to the litigant
challenging service. See Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005); I n

re E.A., 287 S.W.3d 1, 5 (Tex. 2009); Wembley Inv. v. Herrera, 11 S.W.3d 924,

927 (Tex. 1999). Neither Judge Scudday nor the Texas Medical Board offered anyevidence in the trial court below to show valid service pursuant to Supreme Court
of Texas precedent that c ontrols the matter. By not following said precedent, the
Appellant’s Due Process Rights have been violated thus “ vitiating ” the Proposal

for Decision , the substantial evidence rule notwithstanding. See, e.g., Lewis v.
Metropolitan Savings and Loan Association, 550 S.W.2d 11, 13

- 16 (Tex. 1977).

T EX

. R. A PP

. P. 47.1 required the panel to address the issue as framed by the
Appellant in his briefs and motions and not to ignore or change them. See, e.g.,

Lone Star Gas Co. v. Railroad Commission, 767 S.W .2d 709, 710

- 711 (Tex.

1989).

II.

1. Point of Error: The panel of the Court of Appeals erred in affirming
the trial court’s judgment on the basis that that after receiving the Board’s letter on
November 9, 2012, Attorney Washington never made a request for an extension of
time to file exceptions to the Proposal for Decision.

2. Argument and Authorities: The Plaintiff had only has fifteen (15) days
from the time the Proposal for Decision was forwarded to the Appellee to file a
response. That requirement is jurisdictional. See 22 T EX

. A DMIN

. C ODE § 107.50.On November 8, 2012, it is alleged that Attorney Washington was notified that the
Board would consider the Proposal for Decision on November 30, 2012. This

Court
, en banc
, is requested to take judicial notice that the November 8, 2012 date

of the letter and the November 30, 2012 date of notice for consideration of the
Proposal for Decision are long after the deadline expired for responding to the
Proposal for Decision. 1

Pursuant to T EX

. R. A PP . P. 47.1, the panel of this Cour t should have
addressed both the Appellant’s issue as presented in this appeal and the panel did Las tly, the November 8, 2012 letter specifically and
unambiguously states that, “The Board will not listen to or consider new or
additional testimony or matters which are not in the record.” (C.R. 97.) See also

22 T EX

. A DMIN

. C ODE § 107.49. That statement is a judicial ad mission by the
Appellee and for the panel of the Court to intimate that the Appellant could make a
presentation and/or rebuttal to the Proposal for Decision at that late date stretches
credulity t o its very limits. The Appellant ’s Equal Prote ction and Due Process
Rights were violated by not being properly served, thus not allowing him his
statutory right to respond and rebut the Proposal for Decision. T he panel of the
Court has used “judicial fiat” to craft a doctrine and decision which is con trary to
the applicable statutory authority.

1 The time that elapsed from October 1, 2012 to November 8, 2012 is thirty

- nine (39) days.not have the authority to ignore them. This Court, en ban c , is respectfully
requested to correct this injustice. See, e.g., Lone Star Gas Co. , supra.
WHEREFORE, PREMISES CONSIDERED, Appellant requests that the

Court, en banc , grant this motion, that the Court , en banc , vacate the opinion and
judgment of the pan el, that the judgment of the trial court be reversed, that the

Final Order of the Texas Medical Board be reversed and remand the case with
instructions to allow the Appellant to respond to the Proposal for Decision.

Respectfully submitted,

WILLIE & ASSOCIATES, P.C.

By: /s/ Joseph R. Willie, II, D.D.S., J.D. Joseph R. Willie, II, D.D.S., J.D. 4151 Southwest Freeway, Suite 490 Houston, Texas 77027 (713) 659

- 7330 (713) 599

- 1659 (FAX) SBOT# 21633500 attyjrwii@wisamlawyers.com

ATTORNEY FOR APPELLANT RODERICK LEE MITCHELL, M.D.CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing documen t was served via e

- service to Ted A. Ross, Assistant Attorney General, P.O. Box 12548, Capitol Station, Austin, Texas 78711

- 2548, on the 1 5 th day of April , 2015

. /s/ Joseph R. Willie, II, D.D.S., J.D. Joseph R. Willie, II, D.D.S., J.D.

CERTIF ICATE OF COMPLIANCE
I certify t hat the Motion for Rehearing En Banc submitted complies with T EX

. R. A PP

. P. 9 and the wo rd count of this document is 879 . The word processing software used to prepare the document and to calculate the word count is Windows 7.
/s/ Joseph R. Willie, II, D.D.S., J.D. Joseph R. Willie, II, D.D.S., J.D.