### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00502- CV

Roderick Lee Mitc hell, M.D., Appellant

v. Texas Medical Board, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -GN-1 3-0 0024 0, H ONO RAB LE TIM SULAK , JUDGE P RESIDING

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

The Texas Medica l Boa

rd (the Boa

rd) revoke d Dr. Roderick L ee Mitchell’s license to prac tice medicine . Mitchell filed a suit for judicia l reviewof the a g ency order

. See Tex. Gov’t Code § 2001.176. The district court aff irmed the ag ency order

. Mitchell’s two appe l l at e i s s u es redu ce to the contention that the ag ency order is void beca use the administrative law judge (AL J ) failed to send a copy of his proposal for decision (PFD) to either Mitchell or his counsel. See 1 Tex. Admin. Code § 155.507(b) (2014) (State Offic e of Admin. Hea ring s, Proposal for Dec ision). We will affirm.

BACK GR OUND

Mitchell held a license to p ractice medicine issued by the Boa rd in 1981. I n September 2011, the Boa

rd filed a complaint ag ainst Mitchell based on alleg ations that he violated the Texas Occ upations Cod e and cer tain administrative rules. See Tex. Occ

. Code § 164.052(identify ing pr ohibited prac tices by phy sicians); 22 Tex. Admin. Code § 190.8 (2014) ( Tex. Med.

Bd., Violation Guidelines) (identify ing prac tices and conduct considere d to be v i o l at i o ns of Medica l Practice Act). The State Offic e of Administrative Hea ring s (SOAH) held a contested- case hear ing befor e an AL J

. Mitchell attended the h ea ri n g wi t h his attorney , Craig Washington, but submitt ed no exhibi ts and called no witnesses. The AL J prepa red a PFD, which included numerous proposed finding s of fac t and conclusions of law detailing the various violations the AL J deter mined that Mitchell committed. The rec ord includes corr espondenc e dated October 1, 2012, from the AL J to the Boa

rd’s Ex ecutive Direc tor enclosing a copy of the PFD . The letter indicates that a copy of that corr espondenc e and enclose d PFD was sent to Mitchell’s attorney by reg ular mail addre ssed to his office in Houston.

On November 7, the Boa

rd’s hear ings coordina tor sent a letter to the AL J informing him that the PFD would be prese nted to the Boa rd for consideration and approva l at a meeting to be held on November 30. The letter indicates that a copy of this letter was sent to Cra ig Washington,

a g a in a t h is H o u s to n o f

f ic e . O n N o v e mb e r 8 , a s ta f f a tt o r n e y f o r th e B o a r d s e n t a le tt e r to Wa s h in g to n informing him that the Board would consider the PFD at its November 30 mee ting a nd informing him of the opportunity to make a brief oral prese ntation. The rec ord contains a delivery confirma tion
trac king number from L one Star Over night indicating that this corr espondenc e was delivere d to Washington’s Houston off ice on Nove mber 9, 2012. The Boa rd signe d and enter ed its final order on November 30. The final order states that the AL J presided over the conte s t ed ca s e and prepa red a PFD containing findings of fac t and conclusions of lawon October 1. The final orde r re cites that “the PFD wa s proper ly serve d on all parties, and all parties wer e g iven an opportunity to file exceptions and replies as part of the rec ord 2here in. No Ex ception s were filed by either party .” The Boa rd adopted the finding s of fac t and conclusions of law included in the PFD and order ed Mitchell’s medi ca l l i cense revoke d as of the date of the final order

. On Dec ember 29, Mitchell filed a notice of appea ranc e desig nating J oseph R. Wil lie, I I , as h i s n ew at t o rney -in-cha rg e. The noti ce stated that Washington would rema in “of counsel” on the matter and reque sting that all further communications reg arding the proce eding be forwa rded to Wil lie. That day Wil lie also filed a motion for rehe aring of the final order

. The motion for rehe arin g s t ated: “I t is the Respondent [si c] contention that Attorney Washington was never

serve d with the Proposal for Dec ision nor was the Respondent serve d wit h t h e P roposal for Dec ision.” See 1 Tex. Admin. Code § 155.507(b) (re quiring that AL J furnish copy of PFD to eac h party ). I n t h e motion Mitchell contends that, as a result of the AL J ’s failure to serve him with a copy of the PFD, he was denied his rig ht to file exceptions t o i t , wh i ch h e arg ues constitutes a violation of his e qual protec tion a nd due proce ss r ights g uara nteed by the United States and Texas Constit utions. Mitchell maintains that, as a conseque nce, any final order predic ated on the PFD is void as a matter

of law. The Boa rd denied Mitchell’s m o t i on for rehe aring in J anuar y 2013. Mitchell then f il e d s u it f o r ju d ic ia l r e v ie w . A s h e h a d a r g u e d in h is mo ti o n f

o r r e h e a r in g , M it c h e ll ’ s o r ig in a l p e ti ti o n stated: “I t is the Respondent [si c] contention that Attorney Washington was never serve d with the Propo s al for Dec ision nor was the Respondent serve d with the Proposal for Dec ision.” Mitchell

asser ted that the Boa

rd’s final order revoking his medical license was void for the rea son that neither he nor his attorney was serve d with the PFD, depriving him of his rig ht to file exceptions there to in violation of his constitut ional rig hts to equal protec tion and due proc ess.

3Whil e the suit for judicial revie w was pending in Travis County district court,

the B oard w as notified that Mitchell wa s continuing to pra ctice me dicine. Specif ically , the B oard

rec eived information from the Texas Depa rt m en t of Public Safety that Mitchell was continuing
to write presc riptions following revoc ation of his license. As a conseque nce, t h e Bo ard filed an application for a temporar y restra ining order an d t em p orar y injunction to prohibit Mitchell from continuing to pr actice medicine without a license. I n its ve rified application, the Boa rd stated that Wil lie (Mitchell’s counsel) had incorre ctly informed a health-c are fac ility that Mitchell was still able
to prac tice medicine while his suit for judicial revie w was pending

. The Boa rd corr ectly arg ued that

a Boa rd order is not stay ed during pendenc y of an appea l unle ss othe rwise order ed by a court. See Tex. Occ. Code § 164.011(b) (person may not prac tice medicine or deliver health-c are service s in violation of disciplinary

order or ac tion of board while an appea l is pending unless order or ac tion is stay ed by

appropr iate cour

t). Mitchell then filed a response and cr oss-applica tion for tempora ry injunction a g ain arg uing tha t the Boa

rd’s re vocation order was void beca use the PFD was not ser

ved on Mitchell’s counsel or Mitchell as require d by the Boa rd’s rules and he was there fore unable to file exceptions
to the PFD. Mitchell soug ht to enjoin the Boa rd from enfor cing the revoc ation order and asked that the case be rema

nded to the Boa

rd to aff ord Mitchell t h e opportunity to “re but the Proposal for Dec ision rende red by the Administrative L aw J udg e.” The district court g rante d the Boa rd’s reque st for a temporar

y restra ining order , enjoined Mitchell from prac ticing medicine until further order of the court, and set a hear ing on the Boa rd’s reque st for a temporar y injunction. There afte r, the district
court held a hear ing and g rante d the Boa rd’s reque st for a temporar y injunction prohibiting Mitchell from pra cticing medicine until further order of the c ourt and de nied Mitchell’s cr oss-applica tion. 4I n J uly 2013, the district court held a trial on th e m erits of Mitchell’s suit for

judicial revie w. At trial, Wil lie ag ain asser ted that the Boa

rd’s re vocation orde r wa s void beca use the AL J did not send a copy of the PFD t o W as h i n gt o n , Mitchell’s counsel, or to Mitchell. The district court rende red judgme nt aff irming the Boa

rd’s order revoking Mitchell’s license to prac tice medicine. Mitchell then perf ecte d th i s ap p ea l , contending that the AL J ’s alleg ed failure to serve the PFD on either Mitchell or his counsel, which h e co n t en d s deprive d him of a rig ht to file exceptions to the PFD, violated his constitutional rig hts and “vitiates, as a matter of law, the entire administrative proc ess.”

DISCUSSIO N

SOAH’s administrative ru l es provide that an AL J “shall submit the proposal for d e c is io n to th e r e f

e r r in g a g e n c y a

n d f u r n is h a c o p y to e a c h p a

r ty

. ” 1 T e x. A d

mi n . Co d e § 1 5 5

. 5 0 7 ( b )

. The parties may then submit to the AL J and the ref err ing ag ency ex ce p t i o n s t o the PFD. Id. § 155.507(c)

. Ex ceptions must b e fi l ed within 15 day s afte r the date of service of the PFD. Id. § 155.507(c) (1). I f service is by reg ular mail, the date of service is presumed to be no later than three day s after mailing. Id. § 155.507(c) (2). Upon proper re quest and for g ood cause or by

ag ree ment of the parties, the AL J may extend the time to file exceptions to the PFD. Id. § 155.507(3), (4). The linchpin of Mi tchell’s arg ument in the di strict court and in this Court is his asser tion that the AL J did not comply

with his obli g ation to serve him with a c opy of the PFD

. The AL J ’s October 1, 2012 letter to the Bo ar d ’s Ex ecutive Direc tor enclosing a cop y of the PFD indicated that a copy of that corr espondenc e was sent to Mitchell’s attorney , Craig Washington, by reg

ular mail to his law office in Houston. Moreove r, the Boa rd’s order rec ites

5that the PFD was proper ly serve d on all parties and all parties wer e g iven an opportuni t y t o fi le

exceptions. A recitation in a judgment or orde r that prope r notice w as g iven provides pr ima fac ie evidenc e of such notice that the revie wing court must acc ept as true absent evidenc e to the contra ry . S e e , e . g . , R o b e r ts v . M

u ll e n , 4 1 7 S. W. 2 d 7 4 , 7 8 ( T e x. Ci v . A p p . — D a ll a s 1 9 6 7 ) , a

ff ’ d , 4 2 3 S. W. 2 d 5 7 6 (Tex. 1968); see also MJR Fin., Inc. v. Marshall , 840 S.W .2d 5, 9 (Tex. App.—Dallas 1992, no writ) (there exis ts presumption that rec itals contained in judgme nt are true). Mitchell arg ues that he has 1 rebutted this presumption by introducing “evide nce of non-ser vice.” Hav ing revie wed both the administrative rec ord and the rec ord from the suit for judicial revie w, we disag ree that Mitchell has rebutted the presumption that the AL J proper ly serve d the PFD on Mitche ll. I n his briefing to this C ourt, Mitchell asser ts, without citation t o the re cord, that he “pre sented verifie d proof that the documents wer e not rec eived.” We presume Mitchell is ref err ing to an af fidavit he a ttached to his applica tion for a temporar y injunction. I n that aff

idavit, Mitchell

aver red that he rea d the application for temporar y injunction and “the alleg ations contained there in

are within [hi s] persona l knowledg e and are true and corr ect.” The only alleg ation rela ted to service of the PFD is the following: “ I t is the Respondent [s ic] contention that Attorney Washington wa s

never serve d with the P roposal for Dec ision nor was the R espondent served with the P roposal for Dec ision.” Mitchell’s aff idavit swea

ring that it is his “conte ntion” that the AL J failed to comply with ru l e 1 5 5

. 5 07(b) does not, howeve r, constitute evide nce rebutting the presumption that the ag ency ’s re ci t al i n i t s order that the AL J proper ly serve d the parties with the PFD is true. Also

Although these case s involve order s and judgme nts issued by trial courts, we see no rea son 1 the pre sumption of truth should not apply equally to rec itals contained in a f inal ag ency

order

. 6notably

absent fr om the record is any statement, sworn or unsworn, by Washington af firming that h e did not rec eive a copy of the AL J ’s October 1, 2012 corr espondenc e to the Boa rd’s E x ec u t i v e Direc tor enclosing a copy of the PFD. The rec ord does, howeve r, contain unrebutted evidenc e that Washington receive d a copy of the PFD from the Boar d’s s taff attorney on November 9, 2012 y et

never made any reque st for an extension of time to file exceptions to that PFD on the g round that he had no t p re v i o u s l y b een served with a copy . There is no conflict between the Boa rd’s final order

rec iting that the AL J proper ly serve d the P FD o n t h e parties and the evidenc e contained in the

rec ord. We overr

ule Mitchell’s first issue in which he contends that the AL J failed to proper ly serve him or his counsel with the PFD.

Be cause of our dispositi on of Mitchell’s first issue we need not, and do not, addre ss his asser tion, unsupported by any authority , that the failure of an AL J to comply with administrative rule 155.507(b) violates constitutional rig hts and there by voids any ag ency order predic ated on th at P FD

. W e do observe , howeve r, t hat M itchell attended the contested- case hear ing, though he declined to prese nt evidenc e. He also filed a motion for rehe aring and a suit for judicial revie w. We also note that Mitchell’s counsel never reque sted an extension of time to file exceptions to the PFD

once he undisputedly was awa re of its exis tence befor e the November 30, 2012 hear ing when it was prese nted to the B oard.

CONCLUSION

Fo r the rea sons stated above, we aff irm the district court’s judgme nt aff irming the Boa rd’s fina l order r evoking Mitchell’s license to pr actice medicine.

7__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Goodwin, and F ield Affir med Filed: F ebrua

ry 4, 2015

8