NO. 03-14-00644-CV

_____________________________________________________________ 

IN THE COURT OF APPEALS 

THIRD DISTRICT OF TEXAS 

AUSTIN, TEXAS 

_____________________________________________________________ 

JOSE A. PEREZ, 

 Appellant, 

v.

TEXAS MEDICAL BOARD, et al., 

 Appellees. 

____________________________________________________ 

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

No. D-1-GN-14-001172 

____________________________________________________ 

APPELLEES’ BRIEF IN RESPONSE 

TO APPELLANT’S AMENDED BRIEF

____________________________________________________ 

KEN PAXTON 

Attorney General of Texas 

CHARLES E. ROY 

First Assistant Attorney General 

JAMES E. DAVIS 

Deputy Attorney General for 

Civil Litigation 

DAVID A. TALBOT, JR. 

Chief, Administrative Law Division 

TED A. ROSS 

Assistant Attorney General 

State Bar No. 24008890 

OFFICE OF THE TEXAS ATTORNEY 

GENERAL

ADMINISTRATIVE LAW DIVISION

P.O. Box 12548 

Austin, Texas 78711-2548 

Telephone: (512) 475-4191 

Facsimile: (512) 457-4674 

Email: ted.ross@texasattorneygeneral.gov

Attorneys for Texas Medical Board and 

Mari Robinson

ORAL ARGUMENT NOT REQUESTED April 7, 2015

ACCEPTED

03-14-00644-CV

4794406

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/7/2015 3:38:41 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/7/2015 3:38:41 PM JEFFREY D. KYLE Clerk
ii

TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

RECORD AND PARTY REFERENCES .................................................................v

ARGUMENT.............................................................................................................2

I. INTRODUCTION.................................................................................2

II. WHETHER OR NOT THE TMB IS “THE REAL PARTY IN 

INTEREST” IS IMMATERIAL. ..........................................................3

III. PEREZ’S (NEW) SOVEREIGN IMMUNITY ARGUMENT 

LACKS MERIT. ...................................................................................5

IV. PEREZ’S (NEW) RULE CHALLENGE ARGUMENT IS NOT 

AT ISSUE IN THIS APPEAL. .............................................................6

V. PEREZ’S (NEW) EXCLUSIVE JURISDICITON ARGUMENT 

LACKS MERIT. ...................................................................................7

VI. DISMISSAL WITH PREJUDICE WAS PROPER. .............................8

VII. PEREZ’S “LEAVE TO AMEND” ARGUMENT LACKS MERIT....8

CONCLUSION AND PRAYER ...............................................................................9

CERTIFICATE OF COMPLIANCE.......................................................................10

CERTIFICATE OF SERVICE ................................................................................10
iii

INDEX OF AUTHORITIES

Cases

Gutierrez v. Laredo Indep. School Dist., 139 S.W.3d 363 (Tex. App.—

San Antonio 2004, no pet.)..............................................................................7

Lower Laguna Madre Found., Inc. v. Tex. Nat. Res. Conservation Comm’n, 

4 S.W.3d 419 (Tex. App.—Austin 1999, no pet.)...........................................7

Presidio Indep. School Dist. v. Scott, 309 S.W.3d 927 (Tex. 2010) .........................5

R.R. Comm’n of Tex. v. ARCO Oil & Gas Co. 876 S.W.2d 473 

(Tex. App.—Austin 1994, writ denied)...........................................................7

Scally v. Tex. State Bd. of Med. Examn’rs, 351 S.W.3d 434 

(Tex. App.—Austin 2011, pet. denied)...........................................................6

Scott v. Presidio I.S.D., 266 S.W.3d 531 (Tex. App.—Austin 2008, 

pet. granted).....................................................................................................5

Tex. Dep’t of Ins. v. Reconveyance Servs. Inc., 306 S.W.3d 259 (Tex. 2010)..........9

Tex. Educ. Agency v. Cypress-Fairbanks I.S.D., 830 S.W.2d 88 (Tex. 1992)..........7

Wilmer-Hutchins Indep. School Dist. v. Sullivan, 51 S.W.3d 293 (Tex. 2001)........3

Statutes

Tex. Occ. Code § 164.007(c).....................................................................................6

Tex. Occ. Code § 204.101 .........................................................................................3

Tex. Occ. Code § 204.106 .........................................................................................4

Tex. Occ. Code §§ 204.151-.157 ...............................................................................3

Tex. Occ. Code §§ 204.201-3209 ..............................................................................3
iv

Tex. Occ. Code §§ 204.251-.255 ...............................................................................4

Tex. Occ. Code §§ 204.301-.318 ...............................................................................4

Tex. Occ. Code §§ 204.351-.353 ...............................................................................4

Tex. Occ. Code §§ 204.001-.353 ...............................................................................3

Tex. Occ. Code §§ 205.001-.458 ...............................................................................4

Tex. Occ. Code § 205.102 .........................................................................................4
v

RECORD AND PARTY REFERENCES

References to the clerk’s record will be “CR ____.”

References to the supplemental clerk’s record will be “Supp. CR ____.” 

Appellees, the Texas Medical Board and Mari Robinson, will be collectively 

referred to as the “TMB” unless otherwise specified.

Appellant, Jose A. Perez, will be referred to as “Perez.”
1

NO. 03-14-00644-CV

_____________________________________________________________

IN THE COURT OF APPEALS

THIRD DISTRICT OF TEXAS

AUSTIN, TEXAS

_____________________________________________________________

JOSE A. PEREZ,

Appellant,

v.

TEXAS MEDICAL BOARD, et al., 

Appellees.

____________________________________________________

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

No. D-1-GN-14-001172

____________________________________________________

APPELLEES’ BRIEF IN RESPONSE 

TO APPELLANT’S AMENDED BRIEF

____________________________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

Appellees, the Texas Medical Board and Mari Robinson, (collectively 

“TMB”), by and through the Office of the Attorney General of Texas and the 

undersigned Assistant Attorney General, submits the following brief in response to 

Appellant’s Amended Brief filed on March 9, 2015.
2

ARGUMENT

I. INTRODUCTION.

Perez sought leave to file an amended brief because he claimed that he was 

prejudiced by the TMB’s filing of a supplemental clerk’s record after his initial brief 

was filed. See Perez “Amended Motion to Abate and Amend Appellate Brief.” 

The supplemental clerk’s record contained the following documents: 

(1) Perez’s original petition; (2) the TMB’s Plea to the Jurisdiction, Original Answer 

and General Denial, and Affirmative Defenses, filed on May 23, 2014; (3) the 

TMB’s First Amended Plea to the Jurisdiction, filed on August 8, 2014; (4) the 

TMB’s brief in support of its First Amended Plea to the Jurisdiction, filed on August 

13, 2014; and (5) designation of clerk’s record, court docket record, court cost record 

and clerk’s record page. Suppl. CR 2. The primary purpose of filing the 

supplemental record was to ensure that the TMB order from which Perez appealed 

to the district court was before the Court. Suppl. CR 70. There is nothing in the 

supplemental clerk’s record which raises any new factual or legal issues in this 

appeal. Perez was served with all of the pleadings in the supplemental record on the 

date they were filed. That includes the TMB order revoking his license. However 

instead of addressing any new issues raised by the material in the supplemental 

clerk’s record (of which there are none), Perez’s amended brief contains new 
3

arguments that he could have raised in his original brief. In any event, those 

arguments will be briefly addressed below.

II. WHETHER OR NOT THE TMB IS “THE REAL PARTY IN 

INTEREST” IS IMMATERIAL.

In his supplement brief, Perez claims that he sued the correct “real party in 

interest” (the TMB) because the “TMB has admitted to having the responsibility to 

regulate physician assistants and the (Texas Physician Assistant Board) PAB.” 

Amended Br. at 25-26. In support, he cites to selected pages from the TMB’s 

“Agency Strategic Plan” for Fiscal Years 2009-2013. Perez’s selected quotations 

from that document are irrelevant to whether or not the district court had subject 

matter jurisdiction; it is well-settled law that parties to a suit cannot confer 

jurisdiction where none exists. Wilmer-Hutchins Indep. School Dist. v. Sullivan, 51 

S.W.3d 293, 295-96 (Tex. 2001). Nothing can change the fact that the licensing and 

discipline of physician assistants is under an entirely different statutory scheme than 

that of the Medical Practice Act. See Texas Physician Assistant Licensing Act

(“PALA”), Tex. Occ. Code §§ 204.001-.353. See also, e.g., Tex. Occ. Code 

§ 204.101 (powers and duties of the PAB); § 204.151-.157 (PAB exclusively 

responsible for issuing licenses to physician assistants); § 204.201-3209 (PAB 

exclusively responsible for regulating the practices of licenses physician assistants);

§ 204.251-.255 (PAB exclusively responsible for complaints and investigations 
4

related to licensed physician assistants); §§ 204.301-.318; .351-.353 (PAB 

exclusively responsible for the discipline of licensed physician assistants). 

In addition, the PALA requires the physician assistant board to “develop and 

implement policies (subject to the advice and approval of the TMB) that clearly 

separate the policy-making responsibilities of the physician assistant board and the 

management responsibilities of the executive director and the staff of the medical 

board.” Tex. Occ. Code § 204.106. This is further evidence that the legislature, in 

adopting both licensing acts, intended the two boards to have separate jurisdictional 

responsibilities.

To follow Perez’s argument to its logical conclusion would mean that the 

district court would have had jurisdiction even if Perez had sued, say, the Texas State 

Board of Acupuncture Examiners (which obviously has nothing to do with the 

licensing or discipline of physician assistants). The acupuncture licensing act, like 

the PALA, has the same requirement regarding separating the policy-making 

responsibilities of the acupuncture board and the TMB. Tex. Occ. Code § 205.102. 

Moreover, acupuncturists are licensed and disciplined under separate statutory 

schemes. See Tex. Occ. Code §§ 205.001-.458. 

Perez goes on in his amended brief to claim that the TMB “must prove that the 

Texas Legislature has clearly indicated that failure to sue the . . . PAB is 

jurisdictional.” Perez Am. Br. at 41 (emphasis original). The TMB has in fact 
5

established that Perez’s failure to sue the PAB is in fact a statutory prerequisite to 

suit. 

Perez’s reliance on Scott v. Presidio I.S.D., 266 S.W.3d 531 (Tex. App.—

Austin 2008, pet. granted) is misplaced.

1

 The court in that case simply re-stated the 

well-settled principle that a statutory prerequisite to suit affecting only venue is not 

jurisdictional. 266 S.W.3d at 535-36. 

The bottom line is that the separate statutory schemes delineating the powers 

and responsibilities of the TMB and PAB are clearly indicative of the fact that a 

failure to sue the correct entity in a suit for judicial review is indeed jurisdictional.2

III. PEREZ’S (NEW) SOVEREIGN IMMUNITY ARGUMENT LACKS

MERIT.

In his amended brief, Perez argues several constitutional issues. See Amended 

Br. at 26-32; 52-54. As discussed in the TMB’s original brief, Perez’s constitutional 

claims are part of the statutory prerequisites for judicial review. Therefore, because 

the district court lacked subject matter jurisdiction over his suit for judicial review 

 

1 Presidio was reversed on other grounds. Presidio Indep. School Dist. v. Scott, 309 S.W.3d 927 

(Tex. 2010).

2 Perez’s misplaced reliance on Sierra Club is discussed in the TMB’s initial brief at 10-11. See

Perez Am. Br. at 42. 
6

because he sued the wrong statutory entity, the court lacked jurisdiction over the 

constitutional claims as well. See TMB Br. at 11-13.3

IV. PEREZ’S (NEW) RULE CHALLENGE ARGUMENT IS NOT AT

ISSUE IN THIS APPEAL.

Section III of Perez’s amended brief begins with a purported rule challenge 

under the Texas Administrative Procedure Act (“APA”). See, e.g., Perez Amended 

Br. at 39. Perez did not plead an APA rule challenge in his petition for judicial 

review. Suppl. CR 3-51. The validity of any TMB rule is therefore not an issue in 

this appeal.

Equally irrelevant to this appeal is Perez’s claim that he was deprived of due 

process because § 164.007(c) of the Medical Practice Act (which doesn’t even 

apply) prevents him from confronting or cross-examining adverse witnesses. Perez 

Am. Br. at 36-37. However, he in fact waived his right to confront and crossexamine witness in a contested case proceeding by steadfastly refusing to participate 

in the entire disciplinary process, despite having received all notices required by law. 

Suppl. CR 70, ¶ 3; 71, ¶ 8.

 

3 Perez seems to assert a claim that “common law,” and not the PALA, governs his license. See, 

e.g., Perez Amended Br. at 27-28. That is obviously not true. The PALA was enacted pursuant 

to “the state’s power to impose conditions upon the granting or revocation of the license for the 

protection of society.” Scally v. Tex. State Bd. of Med. Examn’rs, 351 S.W.3d 434, 446 (Tex. 

App.—Austin 2011, pet. denied). The constitutionality of the act has never been in question.
7

V. PEREZ’S (NEW) EXCLUSIVE JURISDICITON ARGUMENT LACKS 

MERIT.

Perez’s argument that that the doctrine of exclusive jurisdiction does not apply 

where constitutional claims have been asserted, or where the agency has already 

made a final decision, is also meritless. Perez Br. at 43. The Gutierrez case he cites 

held that an aggrieved party is not required to exhaust administrative remedies where 

the Commissioner of Education lacks jurisdiction. Gutierrez v. Laredo Indep. 

School Dist., 139 S.W.3d 363, 366 (Tex. App.—San Antonio 2004, no pet.), citing 

Tex. Educ. Agency v. Cypress-Fairbanks I.S.D., 830 S.W.2d 88, 90-91 (Tex. 1992). 

That is not the issue in this appeal. Perez cannot dispute the fact that the PAB had 

exclusive jurisdiction over his disciplinary proceeding in the first instance, and it 

was that agency that issued the default order which is the subject of this case. 

Gutierrez is therefore distinguishable. 

Equally irrelevant is the primary jurisdiction doctrine discussed in R.R.

Comm’n of Tex. v. ARCO Oil & Gas Co. 876 S.W.2d 473 (Tex. App.—Austin 1994, 

writ denied). It again cannot be disputed that the PAB had both exclusive and 

primary jurisdiction over Perez’s administrative proceeding.4

 

4 The ARCO case in fact involved the reasoned justification doctrine as it applies to APA rule 

challenges, and the case was later superseded by statute. See Lower Laguna Madre Found., Inc. 

v. Tex. Nat. Res. Conservation Comm’n, 4 S.W.3d 419, 425 (Tex. App.—Austin 1999, no pet.).
8

Perez’s argument also ignores the fact that constitutional claims are part of 

the statutory prerequisites for judicial review. The fact that he failed to sue the 

proper entity—itself a statutory prerequisite—precludes all of his constitutional 

claims. See TMB Br. at 11-13. 

VI. DISMISSAL WITH PREJUDICE WAS PROPER.

Perez’s claim that the dismissal of his suit should have been without prejudice 

is premised on the mistaken assumption that his failure to sue the PAB was a defect 

of parties and not jurisdictional. This argument is incorrect for the reasons discussed 

above and in the TMB’s initial brief. See TMB Br. at 6-11. 

VII. PEREZ’S “LEAVE TO AMEND” ARGUMENT LACKS MERIT.

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

Robinson in her official capacity as a party defendant. Perez Am. Br. at 50-51. He 

in fact did name her as a party in his original petition. Suppl. CR 3. Yet, he did not 

allege any ultra vires actions on her part and he did not seek leave to amend in the 

district court. Id. at 3-51. See also TMB Br. at 15-17. Ultra vires claims are barred 

when a court lacks subject matter jurisdiction in a suit where the plaintiff only sues 

a governmental entity and does not sue an official in his or her official capacity. See
9

Tex. Dep’t of Ins. v. Reconveyance Servs. Inc., 306 S.W.3d 259-60 (Tex. 2010). The 

dismissal with prejudice was therefore proper.5

CONCLUSION AND PRAYER

For the foregoing reasons and as discussed in its original brief, the TMB 

respectfully requests that this Court affirm the district court’s final judgment 

granting TMB’s Plea to the Jurisdiction.

Dated: April 7, 2015.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for Civil Litigation

DAVID A. TALBOT, JR.

Division Chief, Administrative Law Division

 

5 Perez’s argument that he should have been granted leave to amend to assert jurisdictional facts 

under federal law are equally baseless. Perez Am. Br. at 57-60. Whether or not constitutional 

claims may be raised for the first time on appeal of a federal district court case has nothing to do 

with satisfying jurisdictional prerequisites to suit under the APA and Texas jurisprudence.
10

/s/ Ted A. Ross

Ted A. Ross

Assistant Attorney General

State Bar No. 24008890

OFFICE OF THE TEXAS ATTORNEY GENERAL

ADMINISTRATIVE LAW DIVISION

P. O. Box 12548

Austin, Texas 78711-2548

Telephone: (512) 475-4191

Facsimile: (512) 457-4674

Email: ted.ross@texasattorneygeneral.gov

Attorneys for Appellees Texas Medical Board and 

Mari Robinson

CERTIFICATE OF COMPLIANCE

I hereby certify compliance with Texas Rules of Appellate Procedure 9 and 

that there are 1,727 words in this document. Microsoft Word was used to prepare 

this filing and calculate the number of words in it.

/s/ Ted A. Ross

Ted A. Ross

Assistant Attorney General

CERTIFICATE OF SERVICE

I hereby certify that, in compliance with Rule 9.5 of the Texas Rules of 

Appellate Procedure, a true and correct copy of the above and foregoing document 

has been served on the following on this the 7

th day of April 2015:

Jose A. Perez, pro se Via: Electronic Mail and 

34 Candle Pine Place CMRRR #7007 0220 0000 5721 3952

The Woodlands, Texas 77381

Email: theaesculapius@gmail.com

/s/ Ted A. Ross

Ted A. Ross

Assistant Attorney General