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 126th 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

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/16/2015 1:25:40 PM JEFFREY D. KYLE Clerk
2. Argument and Authorities: The fact that the Appellant attended the 

contested case hearing below is not and 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 properly 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 TEX. GOV’T CODE § 2001.174.

Pursuant to 1 TEX. ADMIN. CODE § 155.3(g), TEX. R. CIV. P. 21a must be 

harmonized with 1 TEX. ADMIN. CODE § 155.507(b), since service of the Proposal 

for Decision was challenged in the trial court and in the Motion for Rehearing 

before the Texas 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 Decision. That burden does not shift to the litigant 

challenging service. See Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005); In 

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 any 
evidence in the trial court below to show valid service pursuant to Supreme Court 

of Texas precedent that controls 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). 

TEX. R. APP. 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 TEX. ADMIN. CODE § 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 TEX. R. APP. P. 47.1, the panel of this Court should have 

addressed both the Appellant’s issue as presented in this appeal and the panel did 

Lastly, 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 TEX. ADMIN. CODE § 107.49. That statement is a judicial admission 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 to its very limits. The Appellant’s Equal Protection 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. The panel of the 

Court has used “judicial fiat” to craft a doctrine and decision which is contrary 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 banc, 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 panel, 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 document was 

served via e-service to Ted A. Ross, Assistant Attorney General, P.O. Box 12548, 

Capitol Station, Austin, Texas 78711-2548, on the 15th day of April, 2015.

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

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

CERTIFICATE OF COMPLIANCE

I certify that the Motion for Rehearing En Banc submitted complies with 

TEX. R. APP. P. 9 and the word 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.