### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00141
- CV

Dr. Kim Elliot McMorries , Appellant

v. Texas Medical Board, Appellee

FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1- GN -20-006852, THE HONORABLE MAYA GUERRA GAMBLE , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Appellant Dr. Kim Elliot McMorries appeals from the trial court ’ s final judgment granting the Te xas M e dical Board ’ s ( the “ Boar d” ) motion for summary judgment, denying his motion for summary judgment and app li cation for permanent injunction, and dismissing his claims against the Board with prejudice. For the following reasons, we affirm the trial court ’ s final judgment.

BACKGROUND McMorries is a physician in Nacogdoches, Texas, who ran a f ertility practi c e dur ing the 1980s. As part of the fertility practice, patients seeking to conceive could consent to the use of anonymou s donors as part of an artificial

- insemination procedure

. McMorries artificially inseminated at le ast two patient s using his own sper m as the anonymous donor sperm,2 fathering at least two child ren
. The patient s and their now

- adult child ren only learned of that fact de cades later through consumer DNA testing. In 2019, the Texas Medical Board received two co mp laints again st McMorries,

co m plain ing that he had used his own sperm during ar tificial

- insemination procedures in the
1980s without informing his patients. McMorrie s contends that the patients consented to anonymous donors and that no specific claus e or disclosur e was needed for h is own s perm to be included. The patien ts, in contrast, contended that their consent to anonymous donors did not include the physician as the donor. In September 2019, the Board initially declined to act on the complai nts, s tating that the matter was “jur isdictio nally not filed” because the B oard “does not review complaints after 7 years of the date of service.” Relevant here , the Legislature amended S ection 154.051 of the Texas Occupations Code in 2011 to add the foll owing statute of l imitation s for cert ain ty pe s of complaints :

The board may not consider or act on a complaint involving care provided more than seven years before the date on which the complaint is received by the board unless the care was provided to a minor.

Act of June 1 7, 20 11, 8 2 nd Le g., R.S. , ch. 1349, § 1, sec. 154.051(d), 2 011 Tex. Gen. Laws
4004 , 4004

– 05 (codified at Tex. Occ. Code § 154.051(d) )

. 1 Howev er, the Board subsequently

1 S e ction 154.051 was subsequently a mended in 202 1 w hen the Legislature added a separate statute of limitati on s applicable to “ complai nts involving an alleged violation of Section 22.011(b)(1 2), Penal Code

. ” See Act of June 14, 2021, 87th Leg., R.S., ch. 620 , § 1, sec. 154.051 (d

- 1) , 2021 Te x. Gen. Laws 1233, 1233

– 34 (amending Section 154.051 to add subse ction (d

- 1) and to condition subs ect ion (d) on new subsection (d

- 1) ); see also Tex. Occ. Code. § 154.051(d

- 1) ( providing a separate statute of limitation s for “ complaints involving a n all eged violation of Section 22.011(b)(12) , Penal Code ” ) ; Tex. Pen. Code §22.011(b)(12) (criminali zi ng he alt h care services provide r in performing assisted rep ro du cti on procedures from3 pursued the complaints, relying on S ection 178.9 of the Texas Administrati ve Code , 2 which was adopted by the Bo ard in 2011:

(a) Standard of Care.
(1) The board may not consider or act on a co mplaint in volving care provid ed more than seven years before the da te on which the complaint is received by the board unless the care was p rovided to a minor

. . . .

. . . . ( b) Other Violations. There is no statute of limitations for the filing of c omplaint s in relat ion to any other vi olation including action by another state licensing entity or criminal conduct.
22 Tex. Admin. Code § 178.9 ( Texas M e d. Bd., S t atute of Limitati ons) ( t he “Board Rule” or “Rule 178.9”)

. 3 The Board ultimately pur sued the matter through an internal informal sett lement

c onference /show compliance proceeding, one of the final step s before a contested case at the State Offi ce of Administrative H earings (SOAH)

.

using human reproductive material from a donor that the patient has n ot expres sly consented to). T h at amendmen t did not make any substantive change to the statute of limitatio ns language at issue in the present appeal (except for adding a cross - refe rence to subse ction (d

- 1)) . For purpo ses of this appeal, any reference to Section 1 54.051(d) concerns the pre

- 2021 v ersion of the sta tute unless o therwise noted.

2 Rule citations are to the rules in effect as of 2019, w hen the complai nts at issue were filed

. All citations to Titl e 22 of the T e xas Administrative Code are to rules pro m ulgated by the Texas Medical Boar d

.
3 Board Rule 178.9 also includes a minor

- specific limitatio n - r elate d rule , whi ch is not appl icable to this appeal. 22 Tex. Admin. Code § 178.9 (a)(1).4 Before any contes ted case proce eded before SOAH, McMorries filed a petition in the district court seeking a de clara tory jud gment pursuant to Section 2001.038 of the Texas
Governme nt Code. He challenged the validity of Rule 178.9, alleg i ng that the Board Rule was inconsistent with Section 154.051(d) of the Texas Occupations Code by excepti ng “Other Violations” f ro m the seven - year statute of limitations. The parties en tered into a Rul e 11 agreement stipulating that the declaratory judgme n t challenge raised a pure question of law about the comparison between Rule 178.9 and Section 154.051(d) of the Texas Occupatio ns Code, and the parties agreed to forgo discovery and und ertake an accele rated briefing schedule on

cross - motions for summary j u dgment. The trial court heard the competing summary judgment motions on March 24, 2021. Thereafter, the trial signed its final j udgmen t, granting the Board’s motion for summ ary judgment and denying McMorries’ s competing motion. McMorries timely appealed

.
S TANDARD O F R EVIE W We review de nov o the grant or denial of summary judgment. Nassar v. Liberty
Mut. Ins. , 508 S.W.3d 2 54 , 257 (Tex. 2017). “On cr oss - motions for summary judgment, each party bears the burden of establishing that it is entitled to judg men t as a ma tter of law.” City of Richardson v. Oncor Elec. Delivery Co. , 539 S.W.3d 252, 259 (Tex. 2018). “When the tria l
court grants one motio n and denies the other, the reviewing court must determine all questions presented and render the judgment th at the trial court should have rendered.” Id. We also review de novo issues of statutory interpreta tion

. Youn gkin v. Hine s , 546 S .W.3d 675, 680 (Tex. 2018). “Our goal when construing a statute is to de termine and give effect to the [L ] egislature ’ s inten t.” Bailey v. Smith , 581 S.W.3d 374, 389 (Tex. App.

— Austin5 2019, pet. denied). We rely on the plai n meaning of the statut or y text to determine legislative intent but still “consider the context and frame work of the entire statute and meld its words into a

c ohesive r eflection of legislative intent.” Id. (quoting Fort Worth Transp. Auth. v. Ro driguez , 547 S.W.3d 830, 838 (Te x. 2018) ). “ Further, we construe statutory language against the backdrop of common law, assuming the Legislature is familiar with com mon - law trad itions and principles.” Marino v. Lenoir , 526 S.W.3d 403, 409 (Tex. 2017).

DISCUSSIO N McMorries co ntends th at Rul e 178.9 is invalid bec ause it e xempts a category of violations

— any complaint falling under “Other Violations ”

— from the seven - y ear statute of limitations contained in Section 1 54.051( d ). The Board counters that Rule 1 78.9 is a permissible exercise of the B oard ’s r ulemaking authority bec ause the “Other Violations ” category is

cons istent with the Board ’s authority under the relevan t s ta tutory pro vision. We agree with the Board. The Board, as a state administrative agency, “ has only tho se power s that t he
Texas L e gislature has expressly conferred upon it and those implied powers that are reasonably necessary to carry out its statuto ry duties. ” Tex as State Bd. of Exam ’ r s of M arriage & Fam

. Therapists v. Tex as Med. Ass ’ n , 511 S.W.3d 28 , 33 (Te x. 2017)

. Accordingly, the Board may only adopt “such rules as are authorized by an d consistent with its statutory authority. ” I d. (quoting R a ilr o a d Com m ’ n of Tex. v. Lone Star Gas Co ., 844 S.W.2d 679, 685 (Tex. 1992) ).

“ Courts gen erall y p resume that agency rules are valid, so parties who challenge a rule have the burden of proving its invalidity. ” Id. ; see also Tex. Gov ’ t Code § 20 01.038 (a) ( aut horizing dec l ar atory judgment actions challenging the “validity or applicability of a rule ”). M cMorr ies6 therefore must demonstr ate the invali dity o f Rule 178.9 by showing the rule “ (1) contravenes specific statutory language; (2) runs counter to the ge ner al objectives of the statute; or (3) imposes additional burdens, conditions, or restrictions in exces s o f or inconsistent with t he relevant st atutor y provisions

. ” Tex as State Bd. of Exam ’ r s of Marriage & Fam

. Therapists , 511 S.W.3d at 33

. Releva nt to ou r purposes here , t he statute of limitations provides :

T he b oard may not consider or act o n a co mplaint involvi ng care provided more than seven years before the date on which the complaint is receive d by the board unless the care was provided to a mino r
.
Tex. Occ. Code § 154.051 (d)

. The Board adopted identi cal l angu age under the heading of

“ Standard of Care ” in su bsecti on (a) (1) of R u le 17 8

. 9 :

The board may not consider or act on a complaint involving care provided more than seven years before the da te on which the comp laint is received by the board unless t he ca re w as provided to a minor.
22 Tex. Admin. Code § 17 8.9 (a) (1)

. Identical language , without more, can neither c ontravene , run counter, n or otherwise impose “addi tional ” burde ns
. S e e Tex as St ate Bd. of Exam’rs o f Marriage & Fa m
. Therapists , 511 S.W. 3d at 33. M cMorr ies therefore doe s not, and cannot, demon strate that this p ortion of the rule , s tanding alone, is inco nsistent with the Section 154.051(d). Rather, McMorries contends that the addi tio n of the “Other Vi olations ” subsection to Rule 178. 9 mak es t he rule in consistent with Section 154.051(d)

. W e co ns ider Rule
178 .9 as a whole, analyzing the rule ’s language and its apparent meaning within its con text. See7 Jaster v. Comet II Const r ., Inc ., 438 S.W.3d 556, 56 2 (Tex. 2014) ; see also TGS

- NOPEC Geop hysi cal Co. v. Combs , 340 S.W .3d 432, 438

– 39 (Tex. 20 11) ( “ We further interpret administrative rules, like statutes, unde r traditional pr inciples of statutory co nstruction. ”). The Other Violations cl ause provides :

(b) Other Violations. There is no st atute of limitations for the filin g of complain ts in relation to any other violation including action by another st ate licensing entity or criminal conduct

. 22 Tex. Admin. Code § 178.9 (b) (emphasis adde d)

. Although the Oth er Violations provision is limite d to “ com plaints in relation to an y other violation, ” the Rule does not define what constitutes “ other ” violation s
. W e therefore give that term its ordinary meaning. Se e TGS

NOPEC , 340 S.W.3d at 4 39 ( e xpl aining th at “ [u] n d efined terms in a statute are typ icall y gi ven their ordinary meanin g ” ).
T he Oxford English Dictionary defines “ oth er ” as “ [t]hat one of two which remains after one is taken, defined, or specified; the remaining (person, thing, or grou p ) of two

. ” Other , C o mpact Oxford English Dictionary 1231 (2d ed. 1987)

. Webster ’ s Dic tionary similarly defines “ other ” as “ being the one (as of two or more) left [;] not being the one (as of two or more) first mentioned or of primary concern. ” Other , We b st er ’ s Third Interna t ional Dictionary 1598 (2002) ; se e als o Ot her , Merriam

- W ebster Dict ionary , https://www.merriam

webster.c om/dictionary/other#legalDictionary (defining “ othe r ” as “ being the one (as of two or more) remaining or not included ” or “being th e o ne or ones distinc t from that or those first mentio ned o r im plied ” ) ( last visited Jan uary 13 , 202 3 ). 4

4 “ Any ” is defined as “ one or some of whatever kind o r sort

. ” Any , Webster ’ s Third International D ictionary 97 (2002) ; see also Merriam

- Webster Dictionary , https :// www.merriam

-8 When considered as a whole with the rest of Rule 178 .9, “any other ” vio lations clearly signals that Subsection (b) of Rule 178.9 only applies to compla int s that are “ remain i ng” because they are “ d ist inct ” or “not included ” w ithin the s pecific category of complaints covered by the statute of li mitations: “compla ints involving care prov ided. ” See Odyssey 2020 Acad., Inc. v. Galveston Cent. Appraisal Dist

. , 6 24 S.W.3d 535, 547

– 48 & n.11 (Tex. 2 021) ( exp laining th at “other ” mean s an a dditional type of the same category only when part of list and following a conjunc tive “and ”); see also id

. at 557 & n.28 (Tex. 2021) (Guzman, J., dissenting) ( “ In this way, the co ntext makes clear t hat ‘ other ’ means ‘ dif fere nt ’ and ‘ not the same ’ as the pr ecedin g two exemption categories. ” ). Rule 1 78.9 thus unambiguously delineates be tween two cate gories of complaints: (1) complaints “involving care provided , ” which are governe d b y the seven

- year

s t atute of limi tati ons, and (2) complaints invo lving “a ny oth er violation , ” which are exempted from the limitati on. S e e Bailey , 581 S.W.3d at 389 (explaining that we “ consider the context and framework of the entire statute an d mel d it s w ords into a cohesi v e r ef lectio n of legislative intent ” (quoting Cadena Comercial USA Corp. v. Texas Alcoholic Beverage Comm ’ n , 518 S.W .3d 318, 326 (Tex. 2017)). Adopting a rule that makes explicit an implicit distinction co ntained wi thin the releva n t st a tu tory provision is c ons istent with the Board ’s authority. See Tex as State Bd. of
Exam ’ r s of Marriage & Fam

. The rapists , 511 S.W.3d at 33 (quoting Lone Star Gas , 844 S.W.2d
at 685 ) ; see also Tex as Dep ’ t of H uman Serv s. v. Christ ian Care C trs. , Inc ., 826 S.W .2d 715, 719 (Te x. App.

— Austin 1992, writ de nied) ( “ Lack of express authority for a particular act of an agency does not mean the agency has no authority for that act

. ”). Section 154.051(d) does not

webster.com/dictio nary/any ( defi ning “any” as “one or some indiscriminately of whatever kind” and may be “used to indicate one selec ted witho ut restrictio n” ) (last visited Januar y 13, 2023).9 apply the seve n - year statute of limitatio n to every c omp laint filed with t h e Board , but only to “complaint[s ] invol vin g care provided. ” See Tex. Occ. Code § 154. 051 (d) ; see also Pruett

v
. Harris C ty. Bail Bond Bd ., 2 49 S.W.3d 447, 452 (Tex. 2008) (explaining tha t agency rules must be a utho ri zed by and c ons is tent with statut o ry auth ority)

. That is, b y exp ressly applying th e statute of limitation s to complaints “inv olving care provided , ” the limitation s period also unambiguo usly d oes n ot apply to compla ints not involving care pro vid ed

. See Presidio Indep

. S

ch. Dist. v. Scott , 30 9 S.W.3d 927 , 930 (Tex. 2 010) ( explaining th at unambiguous statute is determinative of legislative intent); Anderson

- Clayton Bros. Fune ral Home, Inc . v. St rayhorn , 149 S.W.3d 166, 173 (Tex. App.

— Austin 20 04, pet. denied) ( “W e are t o p resume that ev ery

w ord in a statute ha s been used for a purpose and that each word, phrase, clause, and sentence should be given effect.” )

. All t he Board h as done by in cluding the “Other Violati ons ” provision
in R ule 178. 9 i s to expressly describe the im plicit distinc tion m ade in Section 154 .051(d) between the categories of complaints

. M cMorri es alternative l y a rgues t hat the Boa rd has interp reted the “ complaint involv ing care provided ” category as not including th e complain ts against him ( h e argues t hos e

co mplaints are abou t in formed consent and thus in volve “ care provide d ” ) and therefore the Board ’s interpreta tion makes Rule 178.9 invalid. See 22 Tex. Admin. Code § 178.9 (a)(1) ; see also Tex. Occ. Code § 154.051 (d). This ar gument, however, is irre le vant in the contex t of a dec laratory judgment action challenging an agency rule

. McMorries ’ s argument concedes that Rule 178.9 is applicable to the complaints at issue here. That is, McMorrie s believes that the limitations

- related rule con tained within R ule 178.9 shoul d apply to pr ohibit the Board from acting on the comp laints against him. T here is therefore no dispute regarding the “ applicability ”10 of Rule 178.9

. S e e Tex. Gov ’t Code § 2001.038 (a) (authorizing declaratory j udgment actions challengi ng “ va lidity or a pplicability o f a rule ” ). Rather, McMorries and the Board me rely disagree about how Rule 178.9 applies
to the complaints at issue here (i.e., whether the complaints “ involve care provided ” or constitute

“ ot her violations ” )

. 5 But the que stio n of how the Rule should a ppl y i s beyond the jurisdiction of the trial court in a declaratory judgment a ction challenging an agency rule. See LMV

- AL Ventures, LLC v. Tex as Dep ’ t of Ag ing & Disability Serv s. , 520 S.W.3d 113, 124

– 25 (Tex. App.

— Austin 2017, pe t . denied) (explaining that tr i al court does not have jurisdiction under
S e ction 2001.038 to “ determine whether the agency comp lied with the rule ” or “ ho w the rule should be applied ” ). T hat question may be relevant to the potential separ ate SOAH proce ed in g between the parties , but it d oes not imp licate the validity of R u le 178.9 for purposes of the present declaratory judg ment action

. 6 S e e id. at 125

. McMorries t here fore has failed to overcome the presum pt ion that Rule 178.9 is valid. See T ex as State B d. of Exam ’ r s of Marriage & F ami ly Therapis ts , 511 S.W.3d at 33 ; see also Tex. Gov ’ t Code § 2001 .038 (a ). Accordingly, we conclu de that the trial cour t did not err whe n it granted summary judgment to the Boa rd in the Board ’ s favor , denied McMorries ’ s motio n, and d ismissed McMorries ’ s dec laratory judgment action

.

5 McMorries ’s arguments relying on the su bsequent 20 21 amendments to Section 154.051(d) of the Texas Occupations Code similarly concern how the pre - 2019 statute of limitation s should apply to th e complai nts against him while still implicitly conceding that they do apply

. See Tex. Occ. Code. § 154.051(d

- 1) ( providing separate statute of limitati ons for

“ complaints involving an all eged violation of Section 22.011(b)(12) , Penal Code ” )

.
6 We there fore do n ot address wheth er the particular complaints against McMorries qualify as complaints “ inv ol ving care p rov ided ” for purposes of t he statute of lim itation under Rule 178.9

.11 CONCLUSIO N For these reasons, we affirm the trial cou rt ’ s final judgment

.

__________________ ______________ __________ D arlene Byrne , Chief Justice Before Chi ef Justice Byrne, Justices Triana and Kell y Affirmed Filed: February 1 6 , 2023