No. 03-14-00644-CV

__________________________________________________________________

IN THE THIRD COURT OF APPEALS

AUSTIN, TEXAS

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 Reply Brief

Jose A. Perez

34 Candle Pine Place

The Woodlands, TX 77381

theaesculapius@gmail.com

281-673-0452

Oral Argument Waived

ACCEPTED

03-14-00644-CV

4872647

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/13/2015 8:46:24 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/13/2015 8:46:24 PM JEFFREY D. KYLE Clerk
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
TABLE OF CONTENTS

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

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

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

Summary of the Argument ......................................................................................7

Argument .................................................................................................................8

Prayer ......................................................................................................................18

Certificate of Service ..............................................................................................18

Tex R. App. P. 9.4(i)(3) Certificate of Compliance....................................18

Index Of Authorities

Cases

Amarillo Oil Co. v. Energy-Agri Prods., Inc.,

794 S.W.2d 20, 26 (Tex. 1990).........................................................16

Aguilar v. Frias, 366 SW 3d 271, 273 (Tex. App.—El Paso 2012, pet. denied).....................17

A.R. Logan v. The State,

5 Texas Court Of Appeals 306 (Tyler-1878)............................................14

California Utilities Commission v. United States,

355 U.S. 534, 540, 2 L. Ed. 2d 470, 78 S. Ct. 446 (1958).............................11

Chandler v. Miller,

520 U. S. 305, 308 (1997)...............................................................13
City of Beaumont v. Bouillion,

896 S.W.2d 143, 148 (Tex. 1995)......................................................15

Cox v. Robison,

150 S.W. 1149, 1151 (Tex. 1912)......................................................14

Damico v. California,

389 U.S. 416, 19 L. Ed. 2d 647 , 88 S. Ct. 526 (1967)(per curiam)................16

ElderCare Properties, Inc. v. Texas Department of Human Services,

63 S.W.3d 551 (Tex. App. Dist.3 12/06/2001).......................................11

Hamilton v Washington,

NO. 03-11-00594-CV (3rd DCA - December 23, 2014)..............................17

Jones v. Ross,

173 S.W.2d 1022, 1024 (Tex. 1943)...................................................15

Kentucky v. Graham,

473 U.S. 159, 165 (1985)................................................................17

Gutierrez vs. Portfolio Recovery Associates, LLC,

NO. 03-13-00311-CV (3rd DCA- February 26, 2015).................................9

McNeese v. Board of Educ., Community Unit Sch. Dist. 187, 373 U.S. 668, 670- 71, 10 L.Ed.2d 622, 83 S.Ct. 1433, (1963)...............................................16

Newman v. Bryan,

06-13-00063-CV (Tex.App. Dist.6 10/09/2013)......................................17

Railroad Commission of Tex. v. WBD Oil & Gas Co., 104 S.W.3d 69 (Tex. 2003).............................................................10

Republican Party of Texas v. Dietz,

940 S.W.2d 86, 91 (Tex. 1997).........................................................14

Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248 (Tex. 1999)............................................................10
Satterfield v. Crown Cork & Seal Co., Inc.,

268 S.W.3d 190 (Tex.App. Dist.3 08/29/2008).......................................15

Scott v. Texas State Board of Medical Examiners,

384 S.W.2d 686, 690 (Tex. Sup. Ct - 1964)..........................................12

Schulz v. Schulz,

726 S.W.2d 256, 258 (Tex. App.--Austin 1987, no writ)..............................9

State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007)......................................................17

Southern Ohio Coal Co. v. Donovan,

774 F.2d 693 (6th Cir. 10/02/1985) ....................................................11

Scott v. Texas State Board of Medical Examiners,

384 S.W.2d 686, 690 (Tex. Sup. Ct - 1964) ..........................................12

Spann v. City of Dallas,

111 Tex. 350, 235 SW 513, 514 (1921).............................................12

Tatro v. Texas,

703 F.2d 823 (5th Cir. 04/25/1983).....................................................18

Travelers Ins. Co. v. Marshall,

76 S.W.2d 1007, 1011-12 (Tex. 1934)................................................15

Texas Department of Insurance v. Reconveyance Services, Inc.

306 S.W.3d 256 (Tex. 2010)..............................................................11

Texas Education Agency v Cypress Fairbanks,

830 S.W.2d 88 (May 6, 1992) ............................................................16

Texas State Board of Pharmacy v. Witcher,

447 S.W.3d 520 (3rd DCA - October 31, 2014)....................................10

The State v James A. Goldman,

44 Tex. 104 (1875)......................................................................12
Thomas v. Long,

207 SW 3d 334, 340 (Tex-2006).........................................................17

WBD Oil & Gas Company v. Railroad Commission of Texas,

35 S.W.3d 34, 35 S.W.3d 34 (Tex.App. 02/04/1999) ...............................16

Westheimer ISD v. Brockette,

567 SW 2d 780 , 785 (Tex. 1978)........................................................9

Williams v. Castleman,

247 S.W. 263, 265 (Tex. 1922).........................................................14

World Co. v. Dow,

116 Tex. 146, 287 S.W. 241, 243 (Tex. Comm'n App.1926, opinion adopted)....9

US Constitution

Fourth Amendment.....................................................................13

US Statutes

42 USC 1983..............................................................................17

Texas Constitution

Article XVI, Section 31............................................................13, 14

art. I, § 2....................................................................................14

Texas Statutes

ultra vires act............................................................................17

Tex.Rev.Civ.Stat.Ann. art. 4495b § 3.07(i)

(Vernon Supp. 1982-1983).............................................................12

Texas Rules of Civil Procedure

Tex. R. Civ. P. 45.........................................................................9
Tex. R. Civ. P. 47.........................................................................9

Miscellaneous

Black's Law Dictionary 311 (6th ed. 1990)...........................................14

Kenneth C. Davis, Administrative Law Treatise § 19.01, at 373 (1972)..........16

Separation of Powers under the Texas Constitution , Texas Law Review, Vol 68,

#7, June 1990, by Harold H. Bruff, Esq, Law Professor, University of Texas......15

STATEMENT REGARDING ORAL ARGUMENT

Mr. Perez waives Oral Argument .

SUMMARY OF THE ARGUMENT

(a) Mr, Perez pled in his initial complaint at the trial court the validity of

the TMB Rule which purportedly allows the agency to revoke – by

default – the right to work as a physician assistant;

(b)Mr. Perez did not waive his right to confront and cross examine

witness witnesses by merely seeking a declaratory judgment;

(c) Mr. Perez has a constitutional and common law right to have the

Constitution applied as intended by the voters in 1876;

(d) The doctrine of exclusive jurisdiction does not apply where, as here,

a party asserts constitutional claims and the administrative agency has

entered a final decision;

(e) Dismissal with prejudice was improper
(f) Mr. Perez leave to amend argument in order to add Mari Robinson , in

her individual capacity, is meritorious’

ARGUMENT

I

MR. PEREZ PLED THE VALIDITY

OF THE TMB RULE WHICH PURPORTEDLY

ALLOWS THE AGENCY TO REVOKE - BY DEFAULT – THE RIGHT TO WORK AS PHYSICIAN ASSISTANT

In their brief , the Appellees claim that Mr. Perez did not plead an

APA Rule challenge in his Petition for judicial review1. Mr. Perez

objects.

The Appellee’s assertion lacks candor. Mr. Perez ENTIRE

COMPLAINT was devoted to the issue of the Constitutional and

statutory authority of the TMB to revoke Mr. Perez’ right to earn a

livelihood either at the State Office of Administrative Hearings or by

default.

Mr. Perez challenged the TMB’s purported authority to enter an

administrative default judgment since Mr. Perez had previously filed an

answer2. The Appellees did not and could not, explain how the TMB has

the authority to enter default judgments against a litigant who had

1 Appellees’ Brief in Response to Appellant’s Amended Initial Brief , Issue IV, page 6

2 ROA Vol 1 of 2, pp 21 FN 36, p 44
previously filed an answer given the fact that Texas jurisprudence has

nullified the practice since, at least, 19263. Mr. Perez also objected because the TMB purportedly has the authority

to determine if Mr. Perez’ defenses are meritorious, within the meaning

of the Craddock Test4, even though it is not supposed to have the

authority to enter declaratory judgments5. As stated in Mr. Perez initial Amended Appellate Brief6 on or about

March 7th, 20147the Appellees engaged in ad hoc rulemaking.

Texas follows a fair notice standard for pleading, in which courts

assess the sufficiency of pleadings by determining whether an opposing

party can ascertain from the pleading the nature, basic issues, and the type

of evidence that might be relevant to the controversy8. A petition is

sufficient if it gives fair and adequate notice of the facts upon which the

pleader bases his claim9. The purpose of this rule is to give the opposing party information

3 Schulz v. Schulz, 726 S.W.2d 256, 258 (Tex. App.--Austin 1987, no writ); World Co. v.

Dow, 116 Tex. 146, 287 S.W. 241, 243 (Tex. Comm'n App.1926, opinion adopted)

4 ROA Vol 1 of 2 , p 18

5 Westheimer ISD v. Brockette, 567 SW 2d 780 , 785 (Tex. 1978).

6 Appellant’s Initial Appellate Brief , pp 32-41, Issue III

7 ROA Vol 2 of 2 pp 70-73

8 Gutierrez vs. Portfolio Recovery Associates, LLC, NO. 03-13-00311-CV (3rd DCA- February

26, 2015) citing Tex. R. Civ. P. 45 and 47

9

id
sufficient to enable him to prepare a defense, accordingly, a plaintiff is not

required to "set out in his pleadings the evidence upon which he relies to

establish his asserted cause of action10. Furthermore, where, as here, the

party opponent did not file special exceptions, a petition should be

construed liberally in favor of the pleader11. Mr. Perez respectfully submits that the Third District Court of Appeals

has authorized litigants to properly challenge the TMB rule which

purportedly allows the agency to revoke the right to work in a profession, without cause, pursuant to the agency’s alleged “default proceedings”, please see the Texas State Board of Pharmacy v. Witcher, 447 S.W.3d

520 (3

rd DCA - October 31, 2014) citing Rodriguez v. Service Lloyds Ins.

Co., 997 S.W.2d 248 (Tex. 1999) and Railroad Commission of Tex. v.

WBD Oil & Gas Co., 104 S.W.3d 69 (Tex. 2003).

As in Witcher, supra, Mr. Perez did use contested-case procedures to

challenge the Board's ad hoc rule. He timely filed a motion for rehearing

with the Board, complaining of the rule. When that was overruled, he

timely filed a suit for judicial review, again complaining of the rule.

But, assuming arguendo, that Mr. Perez did not raise the issue in the

10 id

11 id
Trial Court the same is nevertheless properly before the Appellate Court12

. II

MR. PEREZ DID NOT WAIVE HIS RIGHT TO

CONFRONT AND CROSS EXAMINE ADVERSE WITNESS

BY MERELY SEEKING A DECLARATORY JUDGMENT

The Appellees claim that Mr. Perez waived his right to confront and

cross examine adverse witness by merely seeking a declaratory

judgment13 seeking to protect his Constitutional rights. Their position is

wholly without merit14. III

MR. PEREZ HAS A

CONSTITUTIONAL AND COMMON

LAW RIGHT TO HAVE THE CONSTITUTION

APPLIED AS INTENDED BY THE VOTERS IN 1876

The Appellees claim that PALA not the Constitution or common law , govern his “license”15 Mr. Perez objects.

In support of their position the Appellees quote a case in which

12 Appellant’s Amended Initial Brief, item XV, pp 57-60.

13 Appellees’ Brief p6 ¶ 2

14 ElderCare Properties, Inc. v. Texas Department of Human Services, 63 S.W.3d 551 (Tex. App.

Dist.3 12/06/2001)( A validity challenge tests a rule on procedural and constitutional grounds);

Texas Department of Insurance v. Reconveyance Services, Inc. and City of El Paso v. Heinrich.

306 S.W.3d 256 (Tex. 2010); Southern Ohio Coal Co. v. Donovan, 774 F.2d 693 (6th Cir.

10/02/1985) citing California Utilities Commission v. United States, 355 U.S. 534, 540, 2 L. Ed.

2d 470, 78 S. Ct. 446 (1958)( But where the only question is whether it is constitutional to fasten

the administrative procedure onto the litigant, the administrative agency may be defied and

judicial relief sought as the only effective way of protecting the asserted constitutional right)

15 Brief p3 , FN 3
Mr. Perez’ was not a party nor were any of his defenses discussed:

Mr. Perez has relied, inter alia, upon:

(a) Tatro v. Texas, 703 F.2d 823 (5th Cir. 04/25/1983)16 ( at common

law, before the enactment of PALA, physicians could delegate their

medical authority to any individual who the supervising physician

believed was a qualified person) ;

(b) The State v James A. Goldman, 44 Tex. 104 (1875) ( A Texas

Supreme Court case, contemporaneous with the Texas Constitutional

Convention) (a medical license is merely a recognition that the holder is

academically qualified within the meaning Article XVI, Section 31 and

once a certificate of qualification was obtained the medical professional is

to be left alone unless he commits malpractice) ;

(c) Scott v. Texas State Board of Medical Examiners, 384 S.W.2d

686, 690 (Tex. Sup. Ct - 1964) (At common law the right to earn a living

could only be revoked for cause , in a civil jury trial in the district courts ;

(d) Spann v. City of Dallas, 111 Tex. 350, 235 SW 513, 514 (1921) in

which Chief Justice Nelson Phillips stated “the Legislature has no

authority to transgress upon the right of a citizen, who has committed no

wrong. He has the right to acquire and own property, and to use it as he

16 Citing Tex.Rev.Civ.Stat.Ann. art. 4495b § 3.07(i) (Vernon Supp. 1982-1983).
pleases so long as his act in such use harms no one, and so long as his

permissive use by others of his property is innocently authorized. In our

Constitution the liberties protected by the Bill of Rights are, by express

provision, 'excepted out of the general powers of government.' It is

declared that they 'shall forever remain inviolate,' and that 'all laws

contrary thereto shall be void.' Texas voters have not amended the

constitution in order to permit the legislature to use arbitrarily use police

powers to take or seize the property of innocent Texans. Nor have Texas

voters amended the Constitution to allow expand the police powers

authorized by Article XVI, § 31.

(4) Chandler v. Miller, 520 U. S. 305, 308 (1997).The Fourth

Amendment requires that searches and seizures be reasonable. A search or

seizure is unreasonable in the absence of individualized suspicion of

wrongdoing. At the time the matter was before SOAH or at the TMB no

neutral magistrates had provided a detached judgment finding probable

cause as required by the Fourth Amendment;

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

At common law , the only police power affecting the medical profession
was Texas Constitution Article XVI, § 3117

. Mr. Perez emphasizes and re-states that "constitution" has been defined

as a "charter of government deriving its whole authority from the

governed18. It is a compact between the government and the people in

which the people delegate powers to the government and in which the

powers of the government are prescribed19. By design, the framers of the Texas Constitution determined the

constitution was to be a compact between the government and its citizens.

Tex. Const. art. I, § 2 ("All political power is inherent in the people, and

all free governments are founded on their authority, and instituted for their

benefit)20. The guiding principle of construing a constitution is to ascertain and

give effect to the intent of the voters who adopted it21. The provisions of

the Texas Constitution mean what they meant when they were

17 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. The Court ruled therein

that the intent of the 1876 voters was to use Article XVI, Section 31 exclusively. That proviso

has not been amended by state voters.

18 Republican Party of Texas v. Dietz, 940 S.W.2d 86, 91 (Tex. 1997) (quoting Black's Law

Dictionary 311 (6th ed. 1990)).

19 id

20 Republican Party, 940 S.W.2d at 91 n.6.

21 Williams v. Castleman, 247 S.W. 263, 265 (Tex. 1922); Cox v. Robison, 150 S.W. 1149,

1151 (Tex. 1912).
promulgated and adopted, "and it does not lie within the power of the

Legislature to change their meaning, or to enact laws in conflict

therewith22. As the supreme court stated more recently, "In interpreting the

Texas Constitution, Texas courts rely heavily on the literal text and are to

give effect to its plain language23. The Constitutional convention of 1876 was provoked by a corrupt

government in Austin wherein the judicial branch colluded with the

executive branch24. IV

THE DOCTRINE OF

EXCLUSIVE JURISDICTION DOES NOT APPLY WHERE,

AS HERE, A PARTY ASSERT CONSTITUTIONAL CLAIMS AND THE

ADMINISTRATIVE AGENCY HAS ENTERED A FINAL DECISION

The Appellees assert that that the doctrine of exclusive jurisdiction

applies even where constitutional claims have been made25. Mr. Perez

objects.

22 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).

23 Republican Party, 940 S.W.2d at 89; see also City of Beaumont v. Bouillion, 896 S.W.2d

143, 148 (Tex. 1995);.Satterfield v. Crown Cork & Seal Co., Inc., 268 S.W.3d 190 (Tex.App.

Dist.3 08/29/2008

24 https://lawweb.colorado.edu/profiles/pubpdfs/bruff/BruffTLR.pdf

Separation of Powers under the Texas Constitution , Texas Law Review, Vol 68, #7, June 1990,

by Harold H. Bruff, Esq, Law Professor, University of Texas

25 Appellees’ Brief p7
The Texas Supreme Court adopted the principle26 in, its seminal case,

i.e., Texas Education Agency v Cypress Fairbanks, 830 S.W.2d 88 (May

6, 1992) case citing McNeese v. Board of Educ., Community Unit Sch.

Dist. 187, 373 U.S. 668, 670-71, 10 L.Ed.2d 622, 83 S.Ct. 1433, (1963)

and Damico v. California, 389 U.S. 416, 19 L. Ed. 2d 647 , 88 S. Ct. 526

(1967)(per curiam).

The Appellees categorized as meritless Mr. Perez claim that exclusive

jurisdiction does not apply where, as here, a final administrative decision

has been made 27. Mr. Perez objects.

The 3rd DCA affirmed its previous ruling asserting that exclusive

jurisdiction does not apply after an administrative decision has been made

in WBD Oil & Gas Company v. Railroad Commission of Texas, 35

S.W.3d 34, 35 S.W.3d 34 (Tex.App. 02/04/1999) citing Amarillo Oil Co.

v. Energy-Agri Prods., Inc., 794 S.W.2d 20, 26 (Tex. 1990) and Kenneth

C. Davis, Administrative Law Treatise § 19.01, at 373 (1972).

V

DISMISSAL WITH PREJUDICE WAS IMPROPER

26 We note, however, that the employees' Title 42 and constitutional claims are not affected by

the doctrine of exhaustion of administrative remedies such that they must be originally

considered by the TEA. Because of the nature of such claims, prior resort to the administrative

process is not usually required

27 Appellees’ Brief, p7
The Appellees’ claim that the dismissal with prejudice was proper.28

Mr. Pere objects.

Dismissals for lack of subject matter jurisdiction are without prejudice

to refiling29. VI

MR. PEREZ LEAVE TO AMEND

ARGUMENT IN ORDER TO ADD MARI ROBINSON ,

IN HER INDIVIDUAL CAPACITY, IS MERITORIOUS

Mr. Perez claims that he should have been granted leave to amend to add Mari

Robinson in her individual capacity because state government employees may be

sued in their individual capacities for damages, declaratory or injunctive relief

pursuant to 42 USC 198330.

In the instant action Mr. Perez sued Ms Robinson pursuant to the ultra vires

act31. Accordingly, Mr. Perez ought to have been given leave to amend in order to

also sue Ms. Marie Robinson in her individual capacity32.

28 Appelles Brief page 8

29 Hamilton v Washington, NO. 03-11-00594-CV (3rd DCA - December 23, 2014) citing Thomas

v. Long, 207 SW 3d 334, 340 (Tex-2006)

30 ROA, Vol 1 of 2, pp 150; 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)

31 ROA , Vol 1 of 2, p 13, item 36

32 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.
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 “Plaintiff/Appellant’s Reply

Brief “ was served by emailing a copy thereof via the State efiling system on this

12th Day of April 2015 to:

Ted A Ross, Esq

Assistant Attorney General

PO Box 12548

Austin, TX 78711-2548

ted.ross@texasattorneygeneral.gov

Margaret.Evins@texasattorneygeneral.gov

_________/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 3239 which includes all words contained in this

brief, excepting the cover page and index of authorities