Ruben ALEMAN, M.D., Petitioner, v. TEXAS MEDICAL BOARD, Respondent

No. 17-0385

Supreme Court of Texas.

Opinion delivered: May 24, 2019

Ronald G. Hole, Hole & Alvarez, L.L.P., McAllen, TX, for Petitioner.

Ted A. Ross, Brantley David Starr, Jeffrey C. Mateer, W. Kenneth Paxton Jr., Office of the Texas Attorney General, James Edward Davis, The University of Texas at Austin, Nichole Beth Bunker-Henderson, Assistant Attorney General, Administrative Law Division, Austin, TX, for Respondent.

Donald P. Wilcox, Kelly M. Walla, Laura Thetford, Texas Medical Association, Austin TX, for Amicus Curiae Texas Medical Association.

Justice Lehrmann delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Guzman, and Justice Devine joined, and in which Justice Busby joined except as to footnote 9.

In this administrative appeal, we review the Texas Medical Board's order imposing disciplinary sanctions under the Medical Practice Act against a physician for violating a state law that requires medical certifications for death certificates to be completed electronically. On the physician's petition for judicial review, the trial court affirmed the Board's order, and the court of appeals likewise affirmed. The physician argues that the Board lacked jurisdiction over the proceedings, that the Medical Practice Act does not authorize disciplinary action for the conduct at issue, that compliance with the electronic certification requirement was impossible, that the Board's sanction was so severe as to be an abuse of discretion, and that the physician is entitled to recover attorney's fees. We agree with the physician that disciplinary action was not authorized and thus reverse the court of appeals' judgment in part.

**I. Background**

**A. Death Certificates: Statutory Framework**

The Texas Health and Safety Code places the responsibility of filing a death *798certificate on the "person in charge of interment or in charge of removal of a body from a registration district for disposition." TEX. HEALTH & SAFETY CODE § 193.002. With certain inapplicable exceptions, that person must "obtain the required medical certification from the decedent's attending physician ... if the death occurred under the care of the [physician] in connection with the treatment of the condition or disease process that contributed to the death." *Id.* § 193.005(a).1 Generally, the Act requires that the medical certification be completed no later than five days after the physician receives the death certificate, *id.* § 193.005(b),2 and that the certificate be filed with the appropriate local registrar no later than ten days after the death occurs, *id.* § 193.003(a).3

In 2007, the Legislature amended chapter 193, adding a provision that requires the person completing the medical certification to "submit the information and attest to its validity using an electronic process approved by the state registrar." Act of May 17, 2007, 80th Leg., R.S., ch. 302, § 2, 2007 Tex. Gen. Laws 577, 577 (codified at TEX. HEALTH & SAFETY CODE § 193.005(h) ). During the time period at issue in this case, the approved electronic process for preparing and recording death certificates was the Texas Electronic Death Registration system (known as TEDR), administered by the Texas Department of State Health Services' Vital Statistics Unit.4

To use the TEDR system, a physician would submit an application to the Department and receive a password from the registrar. When the person required to file a death certificate (often a funeral director) prepared his portion of the certificate electronically and entered the medical certifier's information, the system automatically notified the certifier via email that certification was necessary. The certifying physician would then log into the system to complete the certification. If the certifier was not registered to use the system, the certificate could be "dropped to paper" by the funeral director, meaning it was removed from the system, and sent to the physician for completion on paper. In either event, the completed certificate was filed with the local registrar.

**B. Factual and Procedural Background**

J.S., a patient of Dr. Ruben Aleman's, died on July 16, 2011. The funeral director *799generated and signed J.S.'s death certificate electronically. However, Dr. Aleman was not registered with the TEDR system, so the certificate was dropped to paper and sent to him for manual certification. Dr. Aleman received and hand-certified the paper certificate on July 29. The certificate became "official" on August 8, when it was certified by the local registrar. On August 16, Dr. Aleman submitted an application to register with the TEDR system, and his application was approved and took effect three days later. After registering, Dr. Aleman attempted to certify J.S.'s death certificate electronically. However, the system would not allow him to do so once the certificate became official.

Almost two years later, on May 3, 2013, the Texas Medical Board filed a complaint with the State Office of Administrative Hearings (SOAH) seeking disciplinary action against Dr. Aleman.5 The complaint, signed and sworn to by a Board staff attorney, alleged that "[r]ather than certifying the patient's death certificate through TEDR as required, [Dr. Aleman] required the mortuary to provide him with a paper death certificate," which he "ultimately signed." The complaint alleged that, in doing so, Dr. Aleman violated Health and Safety Code sections 193.002(4) (requiring death certificates to be filed electronically) and 193.005(h) (requiring death certificates to be medically certified electronically). The complaint further alleged that this conduct violated the Medical Practice Act, which authorizes disciplinary action against a licensed physician for "commit[ting] unprofessional or dishonorable conduct that is likely to deceive or defraud the public," including "an act that violates any state or federal law if the act is connected with the physician's practice of medicine." TEX. OCC. CODE §§ 164.052(a)(5), .053(a)(1). Finally, the complaint alleged the case involved aggravating factors-increased potential for harm to the public and an intentional, premeditated, knowing, or grossly negligent act-that should be taken into consideration in determining sanctions.

Dr. Aleman filed a motion to dismiss and plea to the jurisdiction, arguing that the Board lacked subject matter jurisdiction because the complaint did not comply with the Medical Practice Act's requirements. *See id.* § 164.005. The administrative law judge (ALJ) denied the motion. The ALJ also denied both parties' motions for summary disposition as well as Dr. Aleman's motion for sanctions. After a hearing, the ALJ issued a Proposal for Decision containing findings of fact and conclusions of law. The ALJ found that Dr. Aleman did not violate Health and Safety Code section 193.002(4), which applies only to persons required to *file* death certificates. However, the ALJ concluded that Dr. Aleman did violate section 193.005(h) by failing to complete the medical certification electronically and that his noncompliance "did not result from circumstances beyond his control." In turn, the ALJ found that, because the violation was related to Dr. Aleman's practice of medicine, he "by definition" violated the Medical Practice Act. The ALJ further found that no aggravating factors were present in the case. Finally, the ALJ concluded that Dr. Aleman was not entitled to, nor was SOAH authorized to award, attorney's fees.

The Board adopted the ALJ's findings and imposed sanctions. Specifically, the Board ordered Dr. Aleman to: take and *800pass the Board's Jurisprudence Examination within one year (in no more than three attempts); pay a $ 3,000 administrative penalty; complete sixteen hours of continuing medical education within one year, including eight hours of ethics and eight hours of risk management; and give a copy of the Board's order to "all hospitals, nursing homes, treatment facilities, and other health care entities" where Dr. Aleman has privileges or otherwise practices.

On Dr. Aleman's petition for judicial review of the Board's order, the trial court affirmed the order in all relevant respects, and the court of appeals affirmed the trial court's judgment. 565 S.W.3d 26 (Tex. App.-Austin 2017). The court of appeals held in pertinent part: (1) the Board's complaint complied with all statutory requirements, *id.* at 31 ; (2) substantial evidence supported the Board's conclusion that Dr. Aleman violated the Medical Practice Act, *id.* at 35 ; (3) no legal impossibility excused Dr. Aleman's failure to comply because "the impediment to Aleman's submitting the medical certification electronically was of his own making-his failure to register with the TEDR until August 2011," *id.* ; (4) the discipline imposed by the Board was neither in excess of its statutory authority nor arbitrary or capricious, *id.* at 36 ; and (5) the Board did not abuse its discretion in declining to award Dr. Aleman attorney's fees as sanctions for frivolous pleadings, *id.* at 37. We granted Dr. Aleman's petition for review.

**II. Discussion**

**A. Sufficiency of Complaint**

Texas Occupations Code section 164.005 prescribes the procedure for instituting formal administrative proceedings against a physician. Dr. Aleman asserts that the formal complaint against him did not comply with the section's requirements, depriving the Board of jurisdiction over this proceeding. The Board responds that the complaint was statutorily compliant and, alternatively, that any defects are not jurisdictional. *See**City of DeSoto v. White* , 288 S.W.3d 389, 394 (Tex. 2009) (explaining that we presume statutory requirements are not jurisdictional absent clear legislative intent to the contrary). We hold that the complaint met the statutory requirements and thus need not decide whether those requirements are jurisdictional.

1

The Act allows other designated physicians to complete the medical certification if the attending physician is unavailable and other requirements are met. Tex. Health & Safety Code § 193.005(c). And in 2017, the Legislature amended the Act to allow a physician assistant or advanced practice registered nurse to complete the certification for certain patients receiving hospice services and palliative care. Act of May 30, 2017, 85th Leg., R.S., ch. 509, § 1, 2017 Tex. Gen. Laws 1343, 1343-44 (codified at Tex. Health & Safety Code § 193.005(a-1) ).

2

The Act requires the person completing the medical certification to notify the funeral director of the reason for delay if the certification cannot be completed in a timely manner. Tex. Health & Safety Code § 193.005(g).

3

If the person required to file the certificate is licensed by a state agency, the Act prohibits the agency from taking "disciplinary action against the person for failure to timely file the certificate if the person supplies written documentation that the person has made a good faith effort to [timely] file ... and the failure to [do so] results from circumstances beyond the person's control." *Id.* § 193.0041.

4

According to the Department's website, a new registration system called Texas Electronic Vital Events Registrar (TxEVER) went live on January 1, 2019, replacing TEDR and the corresponding system for preparing and recording birth certificates. *See* https://dshs.texas.gov/vs/field/The-TxEVER-Project/.

5

After the electronic certification requirement went into effect in September 2007, the Board observed a grace period until June 1, 2011, refraining from taking disciplinary action against physicians who failed to comply with the requirement during that period. The events involving Dr. Aleman occurred shortly after the grace period expired.

Section 164.005 provides in pertinent part:

> (a) In this section, "formal complaint" means a written statement made by a credible person under oath that is filed and presented by a board representative charging a person with having committed an act that, if proven, could affect the legal rights or privileges of a license holder or other person under the board's jurisdiction.

> (b) Unless otherwise specified, a proceeding under this subtitle or other applicable law and a charge against a license holder may be instituted by an authorized representative of the board.

> (c) A charge must be in the form of a written affidavit that:

> (1) is filed with the board's records custodian or assistant records custodian; and

> (2) details the nature of the charge as required by this subtitle or other applicable law.

> ....

> (f) A formal complaint must allege with reasonable certainty each specific act relied on by the board to constitute a violation of a specific statute or rule. The formal complaint must be specific enough to:

> *801(1) enable a person of common understanding to know what is meant by the formal complaint; and

> (2) give the person who is the subject of the formal complaint notice of each particular act alleged to be a violation of a specific statute or rule.

TEX. OCC. CODE § 164.005(a) - (c), (f). Dr. Aleman does not contend that the complaint provided insufficient detail or notice with respect to the particular acts underlying the alleged violations. Rather, he insists that the complaint was not "in the form of a written affidavit" or "made by a credible person under oath" because the Board staff attorney who signed the complaint lacked personal knowledge of the events in question.

As the court of appeals noted, the Texas Government Code defines "affidavit" as "a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office." TEX. GOV'T CODE § 312.011(1). The complaint at issue meets this definition: it is in writing, states facts, is signed by the party stating them, and is sworn and notarized. We apply this definition in construing civil statutes "unless a different meaning is apparent from the context of the statute in which the word appears." *Id.* §§ 312.001, .011. But no such different meaning-i.e., one adding a requirement that the complaint be signed by a person with personal knowledge-is apparent from the context of section 164.005.

To the contrary, section 164.005(b) provides that, "[u]nless otherwise specified, a proceeding under this subtitle or other applicable law and a charge against a license holder may be instituted by an authorized representative of the board." TEX. OCC. CODE § 164.005(b). This provision would make little sense if personal knowledge were required because board representatives typically will not have such knowledge of the facts underlying an alleged Medical Practice Act violation. Further, the statute contains no indication that a formal complaint is intended to have evidentiary value in the proceedings. By contrast, as the court of appeals recognized, affidavits must affirmatively be "made on personal knowledge" to constitute competent evidence in the summary judgment context. TEX. R. CIV. P. 166a(f). Section 164.005 contains no such express requirement, and we decline to imply one. Accordingly, we hold that the complaint against Dr. Aleman complied with the Medical Practice Act.

**B. Authorization for Disciplinary Action Under the Medical Practice Act**

Dr. Aleman next argues that the Board erred in taking disciplinary action against him for failing to complete the medical certification for J.S.'s death certificate electronically. Under the Administrative Procedure Act, the Board's order may be reversed if its findings and conclusions are "not reasonably supported by substantial evidence" or are "arbitrary or capricious or characterized by abuse of discretion." TEX. GOV'T CODE § 2001.174(2)(E), (F). The Board's factual findings are reviewed under a substantial evidence standard, meaning they will be upheld if "more than a mere scintilla" of evidence supports them. *City of Dallas v. Stewart* , 361 S.W.3d 562, 566 (Tex. 2012) (internal quotation marks omitted). However, the issue here is not whether Dr. Aleman did or did not certify electronically-it is undisputed that he did not. Rather, the parties dispute whether the Medical Practice Act authorized disciplinary action for that conduct, presenting an issue of statutory interpretation.

*802Statutory interpretation involves questions of law that we consider de novo, even when reviewing agency decisions. *Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n* , 518 S.W.3d 318, 325 (Tex. 2017). We generally "rely on the plain meaning of a statute's words" to discern legislative intent. *Id.* In evaluating that language, we construe the words and phrases chosen by the Legislature in context rather than in isolation. *Id.* at 326. That is, "our objective is not to take definitions and mechanically tack them together," but to "consider the context and framework of the entire statute" and construe it as a whole. *Id.*

Under the Medical Practice Act, the Board has "the power to regulate the practice of medicine."6 TEX. OCC. CODE § 152.001(a). As part of its authority to enforce the Act, the Board may take disciplinary action against physicians who engage in certain statutorily prohibited practices. *See id.* § 164.051(a). Among these prohibited practices, enumerated in section 164.052, is the commission of "unprofessional or dishonorable conduct that is likely to deceive or defraud the public, as provided by Section 164.053, or injure the public." *Id.* § 164.052(a)(5). In turn, section 164.053 provides a list of acts that, "[f]or purposes of Section 164.052(a)(5), [constitute] unprofessional or dishonorable conduct likely to deceive or defraud the public." *Id.* § 164.053(a). This list includes "an act that violates any state or federal law if the act is connected with the physician's practice of medicine." *Id.* § 164.053(a)(1).

The Board argues that a physician's certifying a death certificate using pen and paper rather than electronically is a violation of state law-specifically, Health and Safety Code section 193.005(h) -and is connected with the physician's practice of medicine. Thus, the Board concludes, such conduct is subject to disciplinary action. Dr. Aleman responds that, even if he technically violated the electronic certification requirement, section 164.053(a)(1) does not encompass this type of conduct, which does not "actually" qualify as unprofessional or dishonorable conduct that could "actually" deceive or defraud the public. For the reasons discussed below, we hold that the Medical Practice Act did not authorize the Board to take disciplinary action against Dr. Aleman.

The Board is correct that, in light of the Health and Safety Code's electronic certification requirement, Dr. Aleman necessarily violated state law by certifying J.S.'s death certificate manually, regardless of his knowledge of the law's existence. But such conduct was subject to disciplinary action under the Act only if "connected with" the practice of medicine. The question thus arises: what kind of connection is required between the conduct at issue and the practice of medicine?

Typically, when applying statutes requiring a connection between two things, our analysis hinges on how direct that connection must be. *See**ExxonMobil Pipeline Co. v. Coleman* , 512 S.W.3d 895, 900 (Tex. 2017) (analyzing whether communications were made "in connection with" a matter of public concern under the Texas Citizens Participation Act, and rejecting the court of appeals' determination that more than a "tangential relationship" is required to trigger the Act); *Collingsworth Gen. Hosp. v. Hunnicutt* , 988 S.W.2d 706, 709 (Tex. 1998) (examining whether a hospital employee who was fired for committing *803an assault while off duty had nevertheless been terminated for misconduct "connected with" her work, rendering her ineligible for unemployment benefits). However, in this case, the Medical Practice Act further delimits the scope of the required connection by grouping the conduct described in section 164.053(a)(1) with a list of behavior that is sanctionable as "unprofessional or dishonorable conduct that is likely to deceive or defraud the public." TEX. OCC. CODE §§ 164.052(a)(5), .053(a).

By classifying the prohibited conduct in this way,7 the Legislature demonstrated its intent to authorize discipline for certain acts that fall within that category. Examining the list of qualifying conduct in its entirety furthers this conclusion:

> (a) For purposes of Section 164.052(a)(5), unprofessional or dishonorable conduct likely to deceive or defraud the public includes conduct in which a physician:

> (1) commits an act that violates any state or federal law if the act is connected with the physician's practice of medicine;

> (2) fails to keep complete and accurate records of purchases and disposals of:

> (A) drugs listed in Chapter 481, Health and Safety Code [controlled substances]; or

> (B) controlled substances scheduled in the Comprehensive Drug Abuse Prevention and Control Act of 1970 ( 21 U.S.C. Section 801 et seq. );

> (3) writes prescriptions for or dispenses to a person who:

> (A) is known to be an abuser of narcotic drugs, controlled substances, or dangerous drugs; or

> (B) the physician should have known was an abuser of narcotic drugs, controlled substances, or dangerous drugs;

> (4) writes false or fictitious prescriptions for:

> (A) dangerous drugs as defined by Chapter 483, Health and Safety Code [i.e., drugs that are unsafe for self-medication but are not included on the list of controlled substances]; or

> (B) controlled substances scheduled in Chapter 481, Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 ( 21 U.S.C. Section 801 et seq. );

> (5) prescribes or administers a drug or treatment that is nontherapeutic in nature or nontherapeutic in the manner the drug or treatment is administered or prescribed;

> (6) prescribes, administers, or dispenses in a manner inconsistent with public health and welfare:

> (A) dangerous drugs as defined by Chapter 483, Health and Safety Code; or

> (B) controlled substances scheduled in Chapter 481, Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 ( 21 U.S.C. Section 801 et seq. );

> (7) violates Section 311.0025, Health and Safety Code [which prohibits billing for a treatment that the provider *804knows was not provided or was improper, unreasonable, or medically or clinically unnecessary];

> (8) fails to supervise adequately the activities of those acting under the supervision of the physician; or

> (9) delegates professional medical responsibility or acts to a person if the delegating physician knows or has reason to know that the person is not qualified by training, experience, or licensure to perform the responsibility or acts.

*Id.* § 164.053(a).

It is easy to see how the specific conduct described in subsections (a)(2) through (a)(9)-keeping inadequate records of controlled substances, prescribing drugs to those known to be drug abusers, writing false or fictitious prescriptions for certain drugs, prescribing or administering controlled substances and dangerous drugs in a manner inconsistent with public health and welfare, billing for unperformed or medically unnecessary treatments, failing to adequately supervise, and delegating medical responsibilities to unqualified persons-falls under the umbrella of "unprofessional or dishonorable conduct likely to deceive or defraud the public."8 The conduct referenced in subsection (a)(1) is less precise, but it is nevertheless intended to fall within the same classification; otherwise, categorizing the conduct at all serves no purpose.

We therefore hold that an act that violates state or federal law is subject to disciplinary action by the Board under the Medical Practice Act only if the act is connected with the practice of medicine in a manner that makes it likely to deceive or defraud the public. In turn, we reject the Board's contention that a sufficient connection exists solely by virtue of the fact that Dr. Aleman certified the death certificate in his capacity as J.S.'s physician. *See* TEX. HEALTH & SAFETY CODE § 193.005(a) (explaining when the medical certification should be obtained from the decedent's attending physician). Construing the scope of the required connection as broadly as the Board suggests contravenes fundamental interpretation principles by favoring microscopic examination of isolated words over consideration of the statute as a whole.9 It also requires the phrase "likely to deceive or defraud the public" to be effectively read out of the statute entirely, violating another basic tenet of statutory construction. Contrary to the Board's assertion, there is no indication that the Legislature intended to authorize disciplinary *805action under sections 164.052(a)(5) and 164.053 for conduct that is not in fact "likely to deceive or defraud the public." That is, in identifying qualifying behavior, the Legislature did not alter the meaning of the phrase "unprofessional or dishonorable conduct likely to deceive or defraud the public" to include conduct that is not likely to do either.

Indeed, by providing a finite list of acts in section 164.053 that constitute "unprofessional or dishonorable conduct likely to deceive or defraud the public" for purposes of section 164.052(a)(5), the Legislature chose to allow sanctions for some acts that fall within this overarching description but not others. Section 164.053 thus *narrows* the category's scope. But under the Board's reading, subsection (a)(1) simultaneously broadens that scope by incorporating conduct that goes beyond the category's unambiguous parameters. This reading is both internally inconsistent and, again, ignores the Legislature's choice to categorize the conduct in the first instance.

Applying sections 164.052 and 164.053 to the facts at hand, Dr. Aleman's conduct-medically certifying a death certificate using pen and paper rather than the approved electronic system-clearly does not qualify as an act that is connected with the practice of medicine in a manner likely to deceive or defraud the public. Regardless of the method used to complete the medical certification process, the information required is the same, the statutory deadlines are the same, and the certificate's destination-filing with the local registrar-is the same.10*See id.* § 193.003. The effect on the public is likewise the same. By contrast, certainly a physician's failure to provide *accurate* information on a death certificate could be classified as connected with the practice of medicine in a manner "likely to deceive or defraud the public," as it would amount to the inclusion of false information in a legally significant public document.

The Board insists that the electronic certification requirement serves an important public purpose by promoting the prompt issuance of death certificates, thereby reducing delays in various postmortem legal proceedings. That may very well be, but if anything it proves the point. Requiring electronic certification may address inefficiencies in the process, but it in no way addresses fraud or deception.11 And we fail to see how disciplining a physician for failing to comply with that requirement comports with the express policy behind the Act: "to protect the public interest" by "regulat[ing] the granting of [the] privilege [of practicing medicine] and its subsequent use and control." TEX. OCC. CODE § 151.003(1) ; *see also**Sanchez v. Tex. State Bd. of Med. Exam'rs* , 229 S.W.3d 498, 514 (Tex. App.-Austin 2007, no pet.) (noting that " section 164.052 reflects a broader intent to prevent unqualified or otherwise unfit individuals from practicing medicine").

Further, potential fact patterns readily come to mind that only heighten the concerns associated with the Board's overly broad interpretation. For example, suppose *806a physician were cited for speeding while on the way to the hospital to deliver a baby. The physician has likely violated a state law, *see* TEX. TRANSP. CODE §§ 545.351 -.352, and under the Board's interpretation the physician's "act" is at least arguably "connected with" his practice of medicine. Again, however, disciplining such conduct is not consistent with either the Act's language-properly construed as a whole-or its purpose. Rather, the statute reflects legislative intent not to allow such conduct, which is in no way connected with the practice of medicine in a manner that makes the act likely to deceive or defraud the public, to be the proper subject of a disciplinary proceeding.12

Accordingly, we hold that a physician's act of completing the medical certification for a death certificate manually rather than by using the approved electronic process does not constitute a "prohibited practice" under section 164.052 of the Medical Practice Act, and section 164.051 in turn does not authorize the Board to take disciplinary action against a person for such conduct. Because the Board relied on an erroneous interpretation of the Medical Practice Act to discipline Dr. Aleman, it necessarily abused its discretion in doing so. We therefore reverse the court of appeals' judgment to the extent it upholds the portions of the Board's order (1) concluding that Dr. Aleman violated the Medical Practice Act and (2) imposing sanctions against him.13

**C. Attorney's Fees**

Finally, Dr. Aleman argues that the ALJ abused its discretion in failing to award him attorney's fees as sanctions under Texas Civil Practice and Remedies Code chapter 10 and Texas Rule of Civil Procedure 13. Dr. Aleman contends that some of the allegations against him in the formal complaint-specifically, that he violated Health and Safety Code section 193.002(4) and that aggravating factors warranted more severe discipline-were groundless and brought in bad faith, justifying an award of attorney's fees as sanctions. The Board concluded that SOAH was not authorized to award attorney's fees in this proceeding, and we agree.

As a state agency, SOAH has those powers the Legislature expressly confers, along with "whatever powers are reasonably necessary to fulfill its express functions or duties." *Pub. Util. Comm'n of Tex. v. City Pub. Serv. Bd. of San Antonio* , 53 S.W.3d 310, 316 (Tex. 2001). Section 2003.0421(a) of the Administrative Procedure Act generally authorizes an ALJ employed by SOAH to "impose appropriate sanctions as provided by Subsection (b) against a party or its representative" for filing a pleading that is groundless and brought in bad faith or for an improper purpose.

*807TEX. GOV'T CODE § 2003.0421(a)(1). Subsection (b) then provides:

> (b) A sanction imposed under Subsection (a) may include, as appropriate and justified, issuance of an order:

> (1) disallowing further discovery of any kind or of a particular kind by the offending party;

> (2) charging all or any part of the expenses of discovery against the offending party or its representatives;

> (3) holding that designated facts be considered admitted for purposes of the proceeding;

> (4) refusing to allow the offending party to support or oppose a designated claim or defense or prohibiting the party from introducing designated matters in evidence;

> (5) disallowing in whole or in part requests for relief by the offending party and excluding evidence in support of those requests; and

> (6) striking pleadings or testimony, or both, in whole or in part.

*Id.* § 2003.0421(b). The authorized sanctions do not include issuance of an order awarding attorney's fees.

By contrast, a similar provision of the Administrative Procedure Act authorizing SOAH to impose sanctions in contested cases involving the Public Utility Commission expressly includes as a permissible sanction "an order ... requiring the offending party or its representative to pay ... the reasonable expenses, including attorney's fees, incurred by other parties because of the sanctionable behavior." *Id.* § 2003.049(j)(7). This provision demonstrates that the Legislature has chosen to grant SOAH authority to award attorney's fees in certain circumstances, but not in the context of a disciplinary proceeding against a licensed physician.

Dr. Aleman thus relies on Civil Practice and Remedies Code chapter 10 and Texas Rule of Civil Procedure 13, which "allow a trial court to sanction an attorney or a party for filing motions or pleadings that lack a reasonable basis in fact or law." *Low v. Henry* , 221 S.W.3d 609, 614 (Tex. 2007). Sanctions imposed under these provisions may include attorney's fees. TEX. CIV. PRAC. & REM. CODE § 10.004(c)(3) ; TEX. R. CIV. P. 13, 215.2(b)(8). But as the Attorney General of Texas has opined, chapter 10 and rule 13 apply to courts, not administrative agencies. Tex. Att'y Gen. Op. No. JC-0495 (2002) (citing *State v. Flag-Redfern Oil Co.* , 852 S.W.2d 480, 486 n.7 (Tex. 1993) (explaining that an "administrative agency is not a 'court' and its contested case proceedings are not lawsuits")). And Dr. Aleman references no statutory authority directing these provisions to be applied to SOAH in this type of proceeding. Accordingly, the Board correctly held that Dr. Aleman is not entitled to recover attorney's fees.

**III. Conclusion**

We hold that (1) the Board had jurisdiction over this proceeding, (2) the Board abused its discretion in finding that Dr. Aleman violated the Medical Practice Act, and (3) Dr. Aleman is not entitled to attorney's fees. Accordingly, we affirm the court of appeals' judgment in part, reverse it in part, and render judgment vacating the sanctions imposed against Dr. Aleman.

Justice Blacklock filed a concurring opinion, in which Justice Brown joined.

Justice Boyd filed a dissenting opinion.

Justice Blacklock, joined by Justice Brown, concurring.

I agree with the Court that a physician who signs a death certificate with a pen does not "commit[ ] unprofessional or dishonorable *808conduct that is likely to deceive or defraud the public." TEX. OCC. CODE § 164.052(a)(5). I write separately to explain my reasons for reaching that conclusion, which differ from the Court's.

Section 164.051(a)(1) of the Occupations Code authorizes the Medical Board to discipline a person who "commits an act prohibited under Section 164.052." Section 164.052(a)(5), in turn, prohibits "commit[ting] unprofessional or dishonorable conduct that is likely to deceive or defraud the public, as provided by Section 164.053." Finally, section 164.053(a)(1) provides: "For purposes of Section 164.052(a)(5), unprofessional or dishonorable conduct likely to deceive or defraud the public includes conduct in which a physician: (1) commits an act that violates any state or federal law if the act is connected with the physician's practice of medicine."

In the Medical Board's view, any violation of any state or federal law-no matter how mundane or innocuous-has been designated by the legislature as "unprofessional or dishonorable conduct likely to deceive or defraud the public." TEX. OCC. CODE § 164.053(a). In the Court's view, the Board's reading errs by "favoring microscopic examination of isolated words over consideration of the statute as a whole." *Ante* at 804. The dissent correctly points out that there is nothing wrong with "microscopic examination of isolated words" when those words are a legislatively supplied definition of a term. In the dissent's view, the Court's reasoning boils down to the assertion that "the statute simply cannot mean what it expressly says." *Infra* at 814. Yet our job is to apply statutes based on what they expressly say, not what we think they should say. *BankDirect Capital Fin., LLC v. Plasma Fab, LLC* , 519 S.W.3d 76, 78 (Tex. 2017) ("[T]he foremost task of legal interpretation [is] divining what the law *is* , not what the interpreter *wishes* it to be.").

At the risk of engaging in "microscopic examination of isolated words," in my view a careful reading of section 164.053(a)(1) reveals that the Board has oversimplified the statute in a way that eliminates important words of limitation. Contrary to the Board's position, section 164.053(a)(1) is not triggered any time a physician "violates any state or federal law." It is only triggered when a physician "*commits an act that* violates any state or federal law." TEX. OCC. CODE § 164.053(a)(1) (emphasis added). Under the Board's approach, the statute would operate exactly the same way whether or not it contained the words "commits an act that." But we should disfavor any reading that renders these words superfluous. *Pedernal Energy, LLC v. Bruington Eng'g, Ltd.* , 536 S.W.3d 487, 491 (Tex. 2017) ; *TGS-NOPEC Geophysical Co. v. Combs* , 340 S.W.3d 432, 439 (Tex. 2011) ("[E]ach word [is] chosen for a purpose ...."). In this case, giving these words operative meaning poses no challenge. Their meaning is plain. By placing the words "commits an act that" in front of "violates any state or federal law," the legislature invoked the familiar distinction between acts and omissions. *Compare* TEX. PENAL CODE § 1.07(a)(1) (" 'Act' means a bodily movement, whether voluntary or involuntary, and includes speech."), *with**id.* § 1.07(a)(34) (" 'Omission' means failure to act."); *see also**id.* § 6.01(a) (conditioning the existence of an offense on a voluntary "act" or "omission"). Instead of predicating the Board's enforcement authority on the existence of *any* legal violation, the legislature made it dependent on the affirmative *commission of an act* that violates the law. If the legislature had wanted *any* violation of law to qualify as "unprofessional or dishonorable conduct likely to deceive or defraud the public," it could have dispensed with the words "commits an act *809that." TEX. OCC. CODE § 164.053(a)(1). Indeed, that is exactly what it did in section 164.053(a)(7), which is triggered any time a physician "violates Section 311.0025, Health and Safety Code."

We should apply the statute's words whether they make perfect sense to us or not. *Centerpoint Builders GP v. Trussway, Ltd.* , 496 S.W.3d 33, 36 (Tex. 2016) ("[W]e may not omit or gloss over verbiage in an attempt to reclaim clarity."). But in this context, the legislature's invocation of the act-omission distinction actually seems quite sensible. The ancient common-law origins of the act-omission distinction derive in part from the concept of the *actus reus* , under which crimes at common law required proof of an overt act as opposed to a failure to act. 4 WILLIAM BLACKSTONE, COMMENTARIES *21 ("[A] vicious will without a vicious act is no civil crime .... So that to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent upon such vicious will."). The act-omission distinction in criminal law, under which overt criminal acts traditionally were thought more blameworthy than omissions, may not be as strong now as it was in Blackstone's time. But it retains force today, at least enough for the legislature to invoke it in section 163.054(a)(1). Punishing overt acts that violate the law is one thing. Punishing failures to act-particularly in a profession where countless complicated federal and state regulations impose an unfathomable array of legal duties-is quite another. The statute's distinction between illegal acts and illegal omissions does not draw a perfect line between deceptive legal violations and innocuous ones, as the majority attempts to do. But it does draw a line, and we should enforce it.

In my view, section 164.053(a)(1) does not encompass the Board's allegations against Dr. Aleman, which stem from his unlawful failures to act, not from unlawful actions. Section 193.005(h), the statute Dr. Aleman admittedly violated, states: "The person completing the medical certification shall submit the information and attest to its validity using an electronic process approved by the state registrar." TEX. HEALTH & SAFETY CODE § 193.005(h). According to the Medical Board, Dr. Aleman's conduct falls within section 164.053(a)(1) because he violated section 193.005(h) when he "admittedly *failed to sign* the [certificate of death] electronically." Resp't's Br. on the Merits 5 (emphasis added). The SOAH hearing officer stated in the Final Order that "Dr. Aleman violated Texas Health and Safety Code § 193.005(h) by *failing to certify* the death certificate for J.S. electronically." *Ruben Aleman, M.D.* , SOAH Docket No. 503-13-4126.MD (Tex. Med. Bd. June 27, 2014) (emphasis added). The failure to sign is not an act. The failure to certify is not an act. They are omissions. The Board's complaint is that section 193.005(h) imposes an affirmative duty on Dr. Aleman, who *failed* to discharge it. Even as described by the Board and the hearing officer, Dr. Aleman's legal error was one of omission, not of commission. Dr. Aleman admits he violated the statute, but that does not mean he "committed an act that violated" it.

The only act Dr. Aleman committed was signing the death certificate with a pen. But section 193.005(h) does not prohibit that act. Again, it states: "The person completing the medical certification shall submit the information and attest to its validity using an electronic process approved by the state registrar." It says nothing one way or another about the legality of hand-signing a certificate that has been "dropped to paper" and thereby removed from the state registrar's electronic system. The statute does not make it illegal to hand-sign and then *later* electronically certify, as Dr. Aleman attempted to do. The *810statute does not prohibit any action whatsoever with respect to a "dropped to paper" certificate. As far as section 193.005(h) is concerned, Dr. Aleman could have hand-signed it, thrown it in the trash, or made a paper airplane out of it. No matter what happened to the paper certificate, Dr. Aleman's only obligation under section 193.005(h) is to "submit the information and attest to its validity using an electronic process approved by the state registrar."

It might be argued that because hand-signing and electronically certifying are mutually exclusive methods, the act of hand-signing violates the duty to electronically certify. But the statute itself does not make the two options mutually exclusive. Only after consulting the jumbled innards of the "electronic process approved by the state registrar" could one know that, under the registrar-approved process, hand-signing and electronic certification happen to be mutually exclusive. But the "electronic process approved by the state registrar" is not "the law," so hand-signing in violation of it does not trigger section 164.053(a)(1).1 And even if the "electronic process" were the law, the act of hand-signing a certificate still would not violate the statutory duty to electronically certify. Under the state registrar-approved process, the option to hand-sign a paper certificate only arises after it has become impossible to electronically certify it. Once the certificate was "dropped to paper," hand-signing versus electronically signing was not an either/or proposition for Dr. Aleman. His options were to hand sign it or not hand sign it. Whether he took the overt act of signing the paper certificate or not, at that point he could not certify it electronically in compliance with section 193.005(h).

What made Dr. Aleman's violation of section 193.005(h) inevitable-and where the Board says he really went wrong-was his failure to register for the electronic certification system. Ultimately, the Board's objection to Dr. Aleman's conduct is not that he hand-signed the certificate *instead of* electronically certifying it. Once the certificate was "dropped to paper," he had no choice between the two methods.2 In the end, the crux of the Board's objection is that the certificate had to be dropped to paper because Dr. Aleman was not registered with the electronic system. But the law contains no requirement that he register. And even if it did, by *failing* to *811register he did not "*commit[ ] an act* that violates any state or federal law." TEX. OCC. CODE § 164.053(a)(1) (emphasis added).

The bottom line is that the Board is not prosecuting Dr. Aleman for what he did. It is prosecuting him for what he should have done. Under the Board's theory of this case, the legal violation to which Dr. Aleman admitted and for which he is being prosecuted is the *failure* to electronically certify a death certificate. Dr. Aleman may have violated the law by failing to certify electronically, but he did not thereby "commit[ ] an act that violates" the law. Under the text of section 164.053, his unlawful omission does not automatically qualify as "unprofessional or dishonorable conduct likely to deceive or defraud the public." The Board lacks authority to prosecute him for it. I concur in the Court's judgment vacating the sanctions against Dr. Aleman.

> * * *

> After having thus taken each individual one by one into its powerful hands, and having molded him as it pleases, the sovereign power extends its arms over the entire society; it covers the surface of society with a network of small, complicated, minute, and uniform rules, which the most original minds and the most vigorous souls cannot break through to go beyond the crowd; it does not break wills, but it softens them, bends them and directs them; it rarely forces action, but it constantly opposes your acting; it does not destroy, it prevents birth; it does not tyrannize, it hinders, it represses, it enervates, it extinguishes, it stupefies, and finally it reduces each nation to being nothing more than a flock of timid and industrious animals, of which the government is the shepherd.

ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA: HISTORICAL-CRITICAL EDITION 1252 (Eduardo Nolla ed., James T. Schleifer trans., Liberty Fund 2010).

Whether Tocqueville's darkly eloquent prophecy accurately describes modern America is in the eye of the beholder. Yet in at least one respect, his dystopic vision was undeniably prescient. More and more all the time, we live under a legal regime that "covers the surface of society with a network of small, complicated, minute, and uniform rules." *Id.* The total number of laws and regulations is staggering. The Code of Federal Regulations is nearly 190,000 pages long, and it grows constantly. CLYDE WAYNE CREWS, JR., TEN THOUSAND COMMANDMENTS: AN ANNUAL SNAPSHOT OF THE FEDERAL REGULATORY STATE 14 (2018). Since 1993, federal agencies have issued more than 101,380 rules. *Id.* at 4. "And no one seems sure how many more hundreds of thousands (or maybe millions) of pages of less formal or 'sub-regulatory' policy manuals, directives, and the like might be found floating around these days." *Caring Hearts Pers. Home Servs., Inc. v. Burwell* , 824 F.3d 968, 969 (10th Cir. 2016) (Gorsuch, J.). Even as far back as 1982, the Justice Department tried to count the total number of federal criminal laws but concluded that doing so with precision was futile. Gary Fields & John R. Emshwiller, *Many Failed Efforts to Count Nation's Federal Criminal Laws* , WALL ST. J., (July 23, 2011), https://on.wsj.com/2oKFAiM. In Texas law, there are over 43,000 regulations in the Administrative Code and over 4,000 chapters of statutory code, each of which contain dozens or even hundreds of sections. We can only guess at the total number of duties the law imposes on us. Like the grains of sand in a jar, their number seems beyond our capacity to count.

According to the Medical Board, the Texas Legislature designated any violation of any of the countless state or federal *812statutory or regulatory legal obligations as "unprofessional or dishonorable conduct that is likely to deceive or defraud the public." TEX. OCC. CODE § 164.052(a)(5). If that is really the law, then perhaps reality is stranger than Tocqueville feared. Living under a network of complicated and minute rules may be our lot. Living under a regime that considers every violation of its complicated and minute rules to be morally blameworthy-deceptive, fraudulent, and dishonorable-would be quite another thing. But that is not out fate. We remain free citizens endowed with moral discernment apart from the dictates of the law. Free people can tell the difference between laws that justly prohibit harmful conduct based on our shared sense of right and wrong and laws that outlaw otherwise innocuous behavior in pursuit of the government's innumerable regulatory goals. The notion that the Texas Legislature considers every minute violation of the myriad regulations under which doctors practice to be deceptive, fraudulent, and dishonorable conduct obviously strikes the majority of this Court as absurd. That is encouraging.

The ancient distinction between *malum in se* and *malum prohibitum* has deep roots in our legal tradition.3 If we lose our sense of that distinction-between lawbreaking that is wrong in itself and lawbreaking that is wrong only because the government happens to have made it illegal-we are well on our way to becoming "nothing more than a flock of timid and industrious animals, of which the government is the shepherd."

6

"Practicing medicine" is defined as "the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions, by a [physician]." Tex. Occ. Code § 151.002(13).

7

We disagree with the court of appeals and the dissent that the Act internally defines the term "unprofessional or dishonorable conduct likely to deceive or defraud the public." Rather, the Legislature has enumerated in section 164.053 a number of practices that are encompassed by that classification, including acts that violate state law and are connected with the physician's practice of medicine.

8

The dissent opines that failing to adequately supervise subordinates, writing prescriptions for known narcotic abusers, and prescribing nontherapeutic treatments do not necessarily constitute conduct that is likely to deceive or defraud the public. *Post* at ----. We disagree. Failing to supervise subordinates gives patients a false sense of that person's authority and control, and prescribing drugs to narcotic abusers or prescribing nontherapeutic treatments gives others the false impression that the drug or treatment is appropriate.

9

The concurrence would hold that Dr. Aleman's conduct does not satisfy section 164.053(a)(1) because the statute requires the affirmative commission of an act, and Dr. Aleman is being accused only of failing to act-specifically, failing to certify electronically. *Post* at ----. We do not view the statute so narrowly. Leaving aside that almost any conduct can be characterized as both acting and failing to act depending on how it is presented-for example, running a stop sign vs. failing to stop at a stop sign-the allegations against Dr. Aleman are premised on his actions. The Board alleged, and the ALJ found, that Dr. Aleman certified J.S.'s death certificate manually in contravention of the Health and Safety Code's requirement that he do so electronically. In other words, the complained-of conduct involves the manner in which Dr. Aleman certified the death certificate, which is an affirmative act.

10

Each local registrar is required to send all registered birth and death certificates to the state registrar on a monthly basis. Tex. Health & Safety Code § 191.029. The state registrar must "arrange, bind, and permanently preserve [the certificates] in a systematic manner." *Id.* § 191.032.

11

The dissent implies that we have imposed our own subjective view of what fits within the category's description. *Post* at ----. But not even the Board argues that the conduct at issue does so. Instead, it (and the dissent) argue that we should ignore the language the Legislature chose to describe this category altogether.

12

The dissent accuses the Court of rewriting the statute to avoid what we perceive as a troubling result. *Post* at ----. To the contrary, we interpret the statute as a whole and in context to conclude that the *Legislature* intended to avoid this result. *Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp.* , 520 S.W.3d 887, 893 (Tex. 2017) ("[T]he truest measure of what the Legislature intended is what it enacted.").

13

Dr. Aleman alternatively argues that any violation of the electronic certification requirement was excused because it was impossible for him to certify J.S.'s death certificate electronically after it was dropped to paper without his knowledge by the funeral director. He also argues that, to the extent sanctions were authorized, the particular sanction imposed by the Board was so severe as to constitute an abuse of discretion. In light of our holding that Dr. Aleman did not violate the Medical Practice Act, we need not reach these issues.

1

*See, e.g.* , *Lawson v. FMR LLC* , 571 U.S. 429, 460, 134 S.Ct. 1158, 188 L.Ed.2d 158 (2014) (Scalia, J., concurring) ("Since congressional 'intent' apart from enacted text is fiction to begin with, courts understandably allow themselves a good deal of poetic license in defining it."); *Bank One Chicago, N.A. v. Midwest Bank & Tr. Co.* , 516 U.S. 264, 279, 116 S.Ct. 637, 133 L.Ed.2d 635 (1996) (Scalia, J., concurring) ("The law *is* what the law *says* , and we should content ourselves with reading it rather than psychoanalyzing those who enacted it."); *Sherman v. United States* , 356 U.S. 369, 381, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) (Frankfurter, J., concurring) (referring to "wholly fictitious congressional intent"); *Tex. Dep't of Pub. Safety v. LaFleur* , 32 S.W.3d 911, 915 n.7 (Tex. App.-Texarkana 2000, no pet.) ("Legislative intent is, in a sense, a legal fiction because it requires the courts to ascertain the intent of all of the voting members of the legislative body. There is no way to know what all members of the Legislature believed any given bill might mean."); Frank H. Easterbrook, *Text, History, and Structure in Statutory Interpretation* , 17 Harv. J.L. & Pub. Pol'y 61, 68 (1994) ("Intent is elusive for a natural person, fictive for a collective body.").

2

F. Scott Fitzgerald, The Great Gatsby 79 (Wordsworth Editions Ltd. 1993) ("There is no confusion like the confusion of a simple mind.").

3

*See also**Adams v. Starside Custom Builders, LLC* , 547 S.W.3d 890, 894 (Tex. 2018) ("[W]e must adhere to statutory definitions.") (citing *TGS-NOPEC Geophysical Co. v. Combs* , 340 S.W.3d 432, 439 (Tex. 2011) ("If a statute uses a term with a particular meaning or assigns a particular meaning to a term, we are bound by the statutory usage.")); *Youngkin v. Hines* , 546 S.W.3d 675, 680 (Tex. 2018) ("Courts must adhere to legislative definitions of terms when they are supplied.") (citing Tex. Gov't Code § 311.001(b) ); *Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp.* , 520 S.W.3d 887, 893 (Tex. 2017) ("We also typically give statutory terms their ordinary or common meaning unless ... a supplied definition indicates that a different meaning was intended.") (citing *Greene v. Farmers Ins. Exch.* , 446 S.W.3d 761, 765 (Tex. 2014) ("We rely on the plain meaning of the text as expressing legislative intent unless a different meaning is supplied by legislative definition ....")); *Abutahoun v. Dow Chem. Co.* , 463 S.W.3d 42, 46 (Tex. 2015) ("[W]e initially limit our statutory review to the plain meaning of the text as the sole expression of legislative intent ... unless the Legislature has supplied a different meaning by definition ....") (internal citations omitted); *Ross v. St. Luke's Episcopal Hosp.* , 462 S.W.3d 496, 501 (Tex. 2015) ("We construe a statute's words according to their plain and common meaning unless they are statutorily defined otherwise ...."); *In re Ford Motor Co.* , 442 S.W.3d 265, 271 (Tex. 2014) (orig. proceeding) ("We presume that a definition of a common word accords with and does not conflict with the ordinary meaning unless the language clearly indicates otherwise."); *Combs v. Roark Amusement & Vending, L.P.* , 422 S.W.3d 632, 636 (Tex. 2013) ("If a term is expressly defined by statute we must follow that definition.") (citing Tex. Gov't Code § 311.001(b) ); *City of Waco v. Kelley* , 309 S.W.3d 536, 542 (Tex. 2010) ("If the Legislature provides definitions for words it uses in statutes, then we use those definitions in our task."); *Tex. Dep't of Transp. v. Needham* , 82 S.W.3d 314, 318 (Tex. 2002) ("[I]f a statute defines a term, a court is bound to construe that term by its statutory definition only."); *Tijerina v. City of Tyler* , 846 S.W.2d 825, 827 (Tex. 1992) ("Statutory definitions must be given effect; ordinary meanings should be applied *only* to undefined terms.") (emphasis added).

Justice Boyd, dissenting.

In 2007, the legislature passed a statute requiring medical professionals to certify their patients' death certificates electronically instead of on paper. *See* TEX. HEALTH & SAFETY CODE § 193.005(h). To allow physicians ample time to register for and transition to this new system, the Medical Board declined to enforce the requirement for four-and-a-half years. The Board sent mass mailings notifying physicians of the new requirement and then notified them again when the grace period expired. Despite the statute and the notices, Dr. Ruben Aleman never registered to use the electronic-certification system during the extended grace period. One month after the grace period ended, he certified a patient's death certificate on paper. In response, the Board initiated a disciplinary action against Dr. Aleman for violating the law in connection with the practice of medicine.

It was a slam-dunk case. Dr. Aleman does not dispute that he certified the death certificate on paper rather than electronically. Predictably, the administrative law judge found that Dr. Aleman's failure to electronically certify the death certificate was a prohibited practice for which he was subject to discipline. The Board, the trial court, and the court of appeals unanimously *813agreed. *Aleman v. Tex. Med. Bd.* , 565 S.W.3d 26, 28 (Tex. App.-Austin 2017).

But this Court does not. Purporting to "consider the context and framework of the entire statute" and "construe it as a whole" to "discern legislative intent," *ante* at 802 (quoting *Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n* , 518 S.W.3d 318, 325 (Tex. 2017) ), the Court holds that the Board may discipline a doctor who commits an illegal act connected with the practice of medicine "only if the act is connected with the practice of medicine in a manner that makes it likely to deceive or defraud the public." *Ante* at 804.

Instead of "construing" the statute to divine some fictional "legislative intent,"1 I would just apply the statute's plain and unambiguous language. The statute says the Board may discipline a doctor who "commits an act prohibited *under Section 164.052* ." TEX. OCC. CODE § 164.051(a)(1) (emphasis added). Under section 164.052, a physician commits a prohibited act if the person "commits unprofessional or dishonorable conduct that is likely to deceive or defraud the public, *as provided by Section 164.053* ." *Id.* § 164.052(a)(5) (emphasis added). And section 164.053 "provides" that, for "*purposes of Section 164.052(a)(5)* , unprofessional or dishonorable conduct likely to deceive or defraud the public *includes* conduct in which a physician ... commits an act that violates any state or federal law if the act is connected with the physician's practice of medicine." *Id.* § 164.053(a)(1) (emphases added).

At the risk of proving F. Scott Fitzgerald's point,2 I (at least keeping good company with the administrative law judge, the Board, the trial court, and the unanimous court of appeals) find all this pretty simple:

> • the Board can discipline a doctor who commits unprofessional or dishonorable conduct that is likely to deceive or defraud the public;

> • such conduct "includes" an illegal act connected with the practice of medicine; and

> • Dr. Aleman committed an illegal act connected with the practice of medicine; so

> • the Board can discipline Dr. Aleman.

When the statute expressly classifies particular conduct as "unprofessional or dishonorable conduct likely to deceive or defraud the public," the Court's disagreement with that classification is irrelevant. As we have said time and again, "when a statute provides a definition for or uses a *814word or phrase in a particular manner, then courts *must* apply that definition or manner of use when interpreting the statute." *PlainsCapital Bank v. Martin* , 459 S.W.3d 550, 556 (Tex. 2015) (emphasis added).3

Purporting to construe the statute "as a whole" instead of "favoring microscopic examination of isolated words," the Court concludes that the statute simply cannot mean what it expressly says. *Ante* at ----. Specifically, the Court concludes that conduct that qualifies as conduct "likely to deceive or defraud the public" does not in fact "include" the conduct the statute says it includes, but instead includes such conduct only if it is in fact likely to deceive or defraud the public. *Ante* at ----. But it "is very rare that a defined meaning can be replaced with another permissible meaning of the word on the basis of other textual indications; the definition is virtually conclusive." ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 228 (2012) [hereinafter READING LAW ]. And we need not microscopically examine any isolated words to conclude that conduct for which the Board may discipline a doctor "includes" illegal conduct connected with the practice of medicine. Because the statute expressly says it does, the Court's contrary conclusion is simply "disloyal to [the] enacted text." *Youngkin* , 546 S.W.3d at 681.

As additional support for its holding, the Court asserts that the "finite list of acts" under section 164.053(a) narrows the scope of conduct that qualifies as "unprofessional or dishonorable conduct likely to deceive or defraud the public" under section 164.052(a)(5). *Ante* at 805. It reasons that the Board's reading of section 164.053(a)(1) "broadens that scope" and thus "ignores the Legislature's choice to categorize the conduct in the first instance." *Ante* at 804.

*815This reasoning fails for two independent reasons.

First, it misapplies the *noscitur a sociis* canon on which it relies *sub silentio* . This canon "directs that similar terms be interpreted in a similar manner." *TGS-NOPEC* , 340 S.W.3d at 441. More specifically, when words "are associated in a context suggesting that the words have something in common, they should be assigned a permissible meaning that makes them similar." READING LAW at 195. Specific items within a list may limit the meaning of a more general term within the same list "to a subset of all the things or actions that [the more general term] covers-but only according to its ordinary meaning." *Id.* at 196.

The Court concludes that the statute's reference to illegal acts connected with the practice of medicine must refer only to such acts that are connected with the practice of medicine "in a manner that makes [them] likely" deceptive or fraudulent, because all the other items in the list fit that description. *Ante* at ----. To begin with, that characterization simply isn't true: failing to adequately supervise a subordinate is not necessarily likely to deceive or defraud the public, *see* TEX. OCC. CODE § 164.053(a)(8), nor is writing a prescription for a known narcotic abuser or prescribing a nontherapeutic treatment, *see**id.* §§ 164.053(a)(3), (5). Under the Court's construction, the Board could discipline a doctor for engaging in *any* of the listed conduct *only* if the Board demonstrates that the doctor's particular actions were likely to deceive or defraud the public. The statute, however, imposes no such requirement.

But beyond that, the Court misapplies the *noscitur a sociis* canon by focusing on the narrowest possible commonality among the listed items. When the canon applies, the "common quality" among the items listed "should be its *most general* quality-the *least* common denominator, so to speak-relevant to the context." READING LAW at 196 (emphases added). To use the Court's example, *see**ante* at ----, the canon might justify construing the statute's reference to illegal acts "connected with the practice of medicine" to *not* include a doctor's speeding on the way to the hospital, because the types of acts listed share the "general quality" of improper acts performed *as a physician* , not *as a driver* . But whether that's true or not, no one disputes that Dr. Aleman's failure to certify the death certificate electronically was improper and connected with the practice of medicine and, in that sense, it fits squarely within the "general quality" the other listed items share.

Second, and more concerning, the Court's reasoning ignores-and effectively deletes-the statute's unambiguous language. According to the Court, the statute's reference to illegal acts connected with the practice of medicine must refer only to such acts that are "connected with the practice of medicine in a manner that makes [them] likely to deceive or defraud the public" because, "otherwise, categorizing the conduct at all serves no purpose." *Ante* at ----. To the contrary, by "categorizing" actionable conduct as all unprofessional or dishonorable acts likely to deceive or defraud the public, and then defining *that category* to include a *non-exclusive* list of specific types of conduct, the statute confirms that the category includes both the listed conduct and all other unspecified conduct that fits within the broad category. In other words, by stating that the generally described conduct "includes" the listed conduct, the statute does not create a "finite list of acts" at all. *See* TEX. GOV'T CODE § 311.005(13) (" 'Includes' and 'including' are terms of enlargement and not of limitation *816or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded.").

That one listed item does not seem *to us* to fit neatly within the general category's description does not grant us license to remove or revise that item. We have no authority "to rewrite the statute so that it covers only what *we think* is necessary to achieve what *we think* [the legislature] really intended." *Lewis v. City of Chicago* , 560 U.S. 205, 215, 130 S.Ct. 2191, 176 L.Ed.2d 967 (2010) (emphases added); *see also**Badaracco v. Comm'r of Internal Revenue* , 464 U.S. 386, 398, 104 S.Ct. 756, 78 L.Ed.2d 549 (1984) ("Courts are not authorized to rewrite a statute because they might deem its effects susceptible of improvement."). The Court does not think that all illegal conduct connected with the practice of medicine constitutes "unprofessional or dishonorable conduct likely to deceive or defraud the public," so it rewrites the statute to include only those illegal acts that it thinks fit that description. But it ignores the statute's express statement that the general category "includes" illegal conduct connected with the practice of medicine, whether we think it should or not.

And there's more. If, as the Court concludes, the statute allows the Board to discipline doctors only for conduct that is "likely to deceive or defraud the public," there'd be no reason for the list of "included" conduct at all. Under the Court's approach, every act that clearly fits that description is actionable, every act that does not clearly fit that description is not actionable, and the list of acts that the statute says are "included" within the description is simply meaningless. But by providing the list of "included" conduct, the statute provides that all such "included" conduct is actionable even if we think it doesn't clearly fit the description.

Contrary to the Court's reasoning, the correct approach is to recognize that, by describing a general category and then listing specific conduct "included" within that category, the statute makes "doubly sure that the broad (and intended-to-be-broad) general term is taken to include the specifics." READING LAW at 204 (noting that some statutes, like the one at issue here, "provide this belt-and-suspenders function by introducing the specifics with a term such as *including* or even *including without limitation* "). The statute expressly provides that the category of prohibited conduct for which a physician may be disciplined-however that category may be described-"includes" illegal conduct connected with the practice of medicine. Because Dr. Aleman's failure to comply with the electronic-certification statute amounts to such conduct, the statute authorizes the Board to discipline him.

Because the statute expressly grants the Board authority to discipline Dr. Aleman for violating the electronic-certification statute, I respectfully dissent.4 Like the *817unanimous court of appeals, the trial court, the Board, and the administrative law judge, I would hold that the Board acted within its authority, Dr. Aleman cannot rely on an impossibility defense, and the Board did not abuse its discretion. I would affirm.

1

We are directed to no formally promulgated regulation containing this "process." The Board describes the process based on witness testimony from state employees familiar with its inner workings, not based on citations to legal authority. If, as the Board seems to argue, the legislature outlawed whatever the state registrar-approved process would later happen to prohibit, then section 193.005(h) could fail a constitutional challenge under non-delegation principles. Article II, Section 1 of the Texas Constitution, our state's separation-of-powers clause, has been understood to prohibit the legislature from delegating to executive branch agencies the authority to make law. Tex. Const. art. II, § 1 ; *Brown v. Humble Oil & Ref. Co.* , 126 Tex. 296, 83 S.W.2d 935, 941 (1935) ("The power to pass laws rests with the Legislature, and that power cannot be delegated to some commission or other tribunal."); *Chancy v. State* , 84 Tex. 529, 19 S.W. 706, 709 (1892) ("Laws can be made in this state only by the legislature, and it has no power to delegate to any board or other department of the government the power to annul laws enacted by it.").

2

Although Dr. Aleman does not couch his statutory arguments in the text's distinction between acts and omissions, his statutory arguments implicate similar concerns by stressing the "impossibility" of complying with the statute after the certificate had been "dropped to paper." He essentially argues that he can't have *done* anything wrong because once the certificate was "dropped to paper" he did not have the option to *do* anything right. He is correct.

3

1 William Blackstone, Commentaries *54-55, ("[D]ivine or natural *duties* ... [do not] receive any stronger sanction from being also declared to be duties by the law of the land. The case is the same as to crimes and misdemeanors, that are forbidden by the superior laws, and therefore styled *mala in se* , such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. For that legislature in all these cases acts only ... in subordination to the great lawgiver, transcribing and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong. But, with regard to things in themselves indifferent, the case is entirely altered. These become either right or wrong, just or unjust, duties or misdemeanors, according as the municipal legislator sees proper ....").

4

Dr. Aleman alternatively argues that it was "impossible" for him to electronically certify the death certificate, given that he had not yet registered to use the system, and that the Board abused its discretion by imposing arbitrary and capricious penalties. For the reasons the court of appeals explained, I would reject both arguments. Dr. Aleman cannot rely on an impossibility "of his own making-his failure to register with the [electronic system] until August 2011." 565 S.W.3d at 35. And the Board's penalties fell well below the maximum its rules allowed for contested cases. *See*22 Tex. Admin. Code § 190.14(4) ("The maximum sanction in all cases is revocation of the licensee's license, which may be accompanied by an administrative penalty of up to $ 5,000 per violation."). I do not disagree with the Court's holding that the Board's complaint against Dr. Aleman met all statutory requirements and that Dr. Aleman was not entitled to attorney's fees in the administrative proceedings. *See**ante* at ----, ----.