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

NO. 03-14-00390- CV

Charles P . Akin, D.D.S., Ap pellant

v. State Board of Dental Exam iners, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 200 TH JUDICI AL DISTRICT NO. D-1 -GN-1 2-0 0186 7, H ONO RAB LE O RLINDA NARANJO , JUDGE P RESIDING

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

Charles P. Akin, D.D.S., appea ls from the district court’s j udg ment aff irming the decision of the Boa

rd of Dental Ex aminers to deny Akin a dental license following a contested case hear ing. Akin contends that the B oard modified the finding s of fac t a nd conclusions of law of the administrative law judge (AL J ) in violation of the Administrative Procedur e Act (APA) and that the Boa rd’s final order is not supported by substantial evidenc e. Be cause we conclude that the Boa rd’s modifications to the AL J ’s finding s of fac t and conclusions of law wer e in compliance with the APA and that there is substantial evidenc e to support the Boa rd’s order , we affi rm t he trial court’s judg ment.

F ACTUAL AND P ROCEDURE BACK GR OUND

Akin was previously licensed in 1962 and prac ticed dentistry for near ly 40 y ear s. I n the ear ly 1990s, he i n v es t ed in a company that made Medica re products, including lumbar sacr alsupports for whee lcha i r patients. I n 1997, Akin was indicted for conspirac y , mail fra ud, money launder ing, and Medica

re false claims. He wa s t ried and convicted in 1999 and sentenc ed to 87 months in pris o n . T h e conviction was upheld on appea l, and he serve d five y ear s followed by three y ear s probation. I n 2001, the Boa rd revoke d his dental license. Following his rele ase fr om prison, Akin did some “administrative” work for an o t h er d en tist, Dr. Her ron, and in Akin’s daug hter’s denture shop. Whil e he was working at Dr. Her ron’s office , he acc epted and deposited
at least two chec ks g iven by patients to Dr. Her ron that wer e made out to A kin. During his time at his daug hter’s denture shop, he wore a name tag that rea d “Charle s P. Akin, Offic e Manag er, D.D.S. R et i re d

. ” I n 2010, Akin applied for a dental license. The Boa rd denied the application for three

rea sons: (1) the leng th of time Akin had been out of prac tice, (2) his poor ey esig ht, and (3) potential illega l acts he ha d committed in the previous 12 months that affe ct the pra ctice of dentistry . Akin subsequently

took 100 hours of continuing education and corr ecte d his vision. I n 2011, he ag ain applied for a license. The Boa rd ag ain denied t h e ap p l i cation,

co n cl u d i n g t h at by wea

ring the name tag , Akin repr esente d to the public that he was a licensed dentist, in violation of section 251.003 of t h e De n t al P ra ct ice Act (the Act). See Tex. Occ

. Code § 251.003(a) (1)( A) & (B ) (per son prac tices dentistry who repr esents to public he is a dentist or uses the title “ Doctor,” “Dr .”, or “D.D.S.” or another title that direc tly or indirectly repr esents that he is able to perf

orm listed dental prac tices). The Boa rd also conclude d that by wea ring the name tag and by acc epting and depositi ng the checks he committed dishonest or i l l ega l p ractices and violated a law rela ting to the prac tice of dentistry within 12 months prior to his application. See id. § 263.001 (Grounds for Refusal to I ssue L ic ense) (4) (commits dishonest or illega l prac tice rela ted to dentistry ),

2(6) (is found to have violated law rela ting t o dentistry within 12 months prior to application); see

also id. § 256.102(a) (B oard may allow dental lice nse holder to plac e license on retire d status and license holder must apply for retire d status on form presc ribed by board befor e expiration of license)

.

Ak i n reque sted a hear ing at the State Offic e of Administrative Hea ring s. S ee generally Tex. Gov’t Co d e § § 2 0 0 1

. 0 51–.147; Tex. Occ

. Code § 263.003. At the hear ing, Akin testif i ed t h at while he was working at his daug hter’s denture shop doing administrative tasks and clea ning up, an investiga tor came to the shop and observe d the name tag
. The evidenc e showed that the front desk person order ed the name tag for him, and Akin testified that he thought it repr esente d
to the public what he believed to be true and told those who asked—tha t he had a D.D.S. deg ree and

was retire d—so he wore it. Akin also testified that about two y ear s prior he had been working at the office of Dr. Her

ron, who had bought Akin’s denture prac tice from the dentist to whom Akin had sold it, doing the same sort of g ener al clea ning up and repa iring equipment. Dr. Her ron’s prac tice

was doing poorly , and Dr. Her ron eventua lly filed for bankruptc y . Akin testified that he had wanted
t o l ea s e t h e unoccupie d portion of the building in which Dr. Her ron’s prac tice was located and

arr ang e for his daug hter to take over Dr. Her ron’s prac tice. Akin ref

err ed to this as “tra

nsitioni ng ” the prac tice, but he stated that he was unable to secur e the lease and the “tra nsition” never occur

red. The evidenc e showed that two complaints wer e filed involving Akin during his time
at Dr. Her ron’s office , only one of which was admitted into evidenc e. I n the complaint admitted into evidenc e, the complainant stated that she had taken her fathe r to be fitted for denture s that he never

rec eived. The off

ice staf f told her to le ave blank the “pay to the order of” line on the chec k, in the
amount of $2,495, and th ey wo u l d s t am p it. When the chec k was subsequently prese nted for

3pay

ment, the complainant lear ned it ha d been made out to “Charle s Akin.” She stated that she did
not know who Akin was. The other complaint, about which the Boa rd questioned Akin, stated that “Dr

. Akin” had taken impressions but she had neve r re ceive d her de ntures. I n this c ase, the chec k

was for $295 and was made out to “Dr

. Akin.” Akin testified that he did not take impressions or see any patients. Akin also testified that Dr. Her ron’s office staff was worrie d about g etting paid, that Dr. Her ron’s acc ounts w ere “g arnished” in the bankruptc y , and that his name mistakenly ended up

on two or three chec ks without his knowled ge d u ri ng the “tra nsitioni ng .” He explained that he

en dorsed and deposited them in his persona l saving s acc ount that he “like[d] to call an es cr o w

acc ount” and the money was still there

. He stated that at the time he acc epted the chec ks, he did not know the patients wer e unhappy or had not rec eived the service s paid for. He also testified that he had asked the Boa

rd what to do with the funds but rec eived no reply , so he still had the money . He stated that he had a dvised his attorney and Dr. Her ron’s bankruptc y attorney that he had deposited the che cks into his account.

Following the hear ing, the AL J issued a proposal for decision rec ommending that the Boa rd g rant the application. The Boa rd modified four finding s of fac t and three conclusions of law, deleted one conclusion of law and rec lassified one as a rec ommendation, and denied the application. The Boa rd denied Akin’s motion for rehe aring , and Akin appea led. See Tex. Occ

. Code § 263.009. After hear ing the matter, the district c ourt upheld the B oard’ s order . This appea l followed. STANDARD OF REVIEW We revie w a state ag ency ’s order under the “substantial evidenc e” standard of revie w under section 2001.174. See Tex. Gov’t Code § 2001.174; Froemming v. Texas State Bd. of Dental

4Exam’ rs , 380 S.W .3d 787, 790 (Tex. App.—Austin 2012, no pet.). Under this standard, we presume

that the ag ency ’s finding s, infere nces, conclusions, and decisions ar e s u p p orted by substantial evidenc e, and the burden of proving otherwise rests on the appe llant. Froemming , 380 S.W .3d at 791 ; Pierce v. Texas Racing Comm’n , 212 S.W .3d 745, 751 (Tex. App.—Austin 2006, pet. denied)

. The ag ency ’s order may be reve rsed only if a party ’s substantial rig hts have been prejudice d beca use the administrative decisions (1) v i o l ate a constitutional or statutory provision, (2) exceed the ag ency ’s authority , (3) wer e made throug h unlawful proce dure, (4) are aff ecte d by another err or of law, (5) are not rea sonably supported by substantial evide nce when considering the reliable and probative evidenc e in the rec ord as a whole, or (6) are arbitra ry or capr icious or char acte rized by an abuse of discretion. Tex. Gov’t Code § 2001.174; Froemming , 380 S.W .3d at 790. The test is not whether the ag ency rea ched the corr ect conclusion, but whether some rea sonable basis exis ts in the

rec ord to support the ag ency ’s action. Froemming , 380 S.W .3d at 790; Pierce , 212 S.W .3d at 751. We may not substitut e our judgme nt for that of t h e ag ency on questions committed to ag ency discretion. Texas Dep’t of Protective & Regulat o r y S er vs . v. Mega Child Care, Inc. , 145 S.W .3d 170, 197 (Tex. 2004); Froemming , 380 S.W .3d at 790.

Akin’s issues also turn on questions of statutory construction, which is a question of law that we revie w de novo. See Railroad Comm’n v. Texas Citi zens fo r a S

a f e Future & Clean W ater , 336 S.W .3d 619, 624 (Tex. 2011)

. Our primary conce rn is the express statutory lang uag e. See Galbraith Eng’g Consult ants, Inc. v. P ochucha , 290 S.W .3d 863, 867 (Tex. 2009)

. We apply the plain meaning of the text u n l es s a d i ff ere nt meaning is supplied by leg islative definition or is ap p ar en t fr o m the context or the plain meaning leads to absurd results. Marks v. St. Luke’s

5Episcopal Hosp. , 319 S.W .3d 658, 663 (Tex. 2010). I f the statutory lang uag e is ambig uous, we may

defe r to an administrative ag ency ’s construction of its own statutory authority

. T ex a s B d. of Chiropractic Exam’ rs v. Texa s Med. Ass’n , 375 S.W .3d 464, 475 (Tex. App.—Austin 2012, pet. denied)

. “[A]n ag ency ’s interpre tation of a statute it is char g ed with enfor cing is entitled to ‘ser ious consideration,’ so long as the constru ct i on is rea sonable and does not conflict with the statute’s lang uag e.” Texas Cit i

z en s , 3 3 6 S .W.3d at 624. When statutory lag uag e is subject to multipl e interpre tations, we must uphold a n e n forc ing ag ency ’s construction if it is rea sonable and in harmony with the statute. Id. at 629 (obser ving that “g overnme ntal ag encie s have a ‘unique unde rstanding ’ of the statutes they administer”) (quoting W yeth v. Levine , 555 U.S. 555, 577 (2009))

. We construe administr ati ve rules in the same manner as statutes. TGS-NOPEC Geophy sical Co. v. Combs , 340 S.W .3d 432, 438 (Tex. 2011). I f the lang uag e is ambig uous, we defe r to an ag ency ’s i n t er p re t at i o n of its own rules unless it is plainly err oneous or contra dicts the text of the rule or underly ing statute. Public Util. Comm’n v. Gulf States Utils. Co. , 809 S.W .2d 201, 207 (Tex. 1991); Texas Bd. of Chiropractic Exam’ rs , 375 S.W .3d at 475.

DISCUSSIO N Modif ication of Findi ngs of

F act and Conclusion s of L aw Akin challeng es the Boa rd’s modific at ions to the AL J ’s proposal for decision. Specifica lly , he arg ues that the Boa rd chang ed the AL J ’s finding of fac t a nd conclusions of law in violation of the APA. Section 2001.058(e) of the APA provide s:

6(e) A state ag ency may chang e a finding of fac t or conclusion of law made by the

administrative law judge , or may vacate or modify an order issu ed b y the administrative judg e, only if the ag ency

deter mines: (1) that the administrative law judge did not proper ly apply or interpre t applicable law, ag ency ru l es, written policies provided under Subsection (c) , or prior administrative dec isions; (2) that a prior administrative decision on which the administrative law judge relied is incorre ct or should be c hang ed; or (3) that a

technica l error

in a finding of fa ct should be cha ng ed. The ag ency shall state in writing the specific rea son and leg al basis for a chang e made unde r this subsection.

Tex. Gov’t Code § 2001.058(e) ; see Sanchez v. Texas State Bd. of Med. Exam’ rs , 229 S.W .3d 498, 515 (Tex. App.—Austin 2007, no pet.). Akin complains that the Boa rd’s modifications to finding s of fac t n u m bers 18, 19, and 24 and conclusions of law numbers 6 throug h 9 do not meet the require ments of sec tion 2001.058(e). We addre ss eac h modification in turn. 1 Finding of Fact Number 18 I n finding of fac t number 18, the AL J found that Akin did not repr esent to the public that he was able to perf

orm the dental activities listed in section 251.003(a) (1)( A) & (B ) by wea ring the name tag that said “D.D.S. R etired.” The Boar d modified the findi ng to state t hat Akin wore 2 Akin also lists finding of fa ct number 21 a nd conclusion of law

number 5 in a se ction of 1 his brief entitled “Points of Error ,” but he does not offe r any arg ument or cite to any authority or to the rec ord and has there fore waived any arg ument as to whether the Boa rd’s modification of finding of fac t number 21 and conclusion of law number 5 complied with section 2001.058(e)

. See Tex. R. App. P. 38.1(i). The de ntal activities listed in section 251.003(a) (1) a re: 2

7a name tag stating he was a “D.D.S. Retired” when he was not lice nsed. I n explaining the chang e,

the Board stated that the AL J did not properly apply or interpr et applica

ble law a nd ag ency rules. C iting section 251.003(a) (1), see Tex. Occ

. Code § 251.003(a) (1)( A), (B), and R ule 101(7)(a)(1 ),

see 22 Tex. Admin. Code § 101.7(a) (1) (State Boa rd of Dental Ex aminers, Retired L icense Status) 3 (license holder may apply to have license place d on retire d status), the Boa rd explained that beca

use Akin’s license was revoke d, he had n o license to retire , as require d by ag ency rules. The Boa rd stated that beca

use Akin wore a name tag with the words “D.D.S. Retired,” he there fore held himself
out as a “dentist,” a statutorily protec ted title. The Boa rd also noted that Akin rec eived chec ks from patients made out to “Dr

. Akin.” We conclude that the Boa rd provided a specific rea son and leg al 4 basis for its mod i fi ca t i o n and met the requirements of section 2001.058(e). See Tex. Gov’t C ode § 2001.058(e) ; Froemming , 380 S.W .3d at 793 (conc luding that board’ s expla n at ion of how AL J failed to apply or interpre t applicable law, rules, and policies met require ments of Rule 107.51(a) (1), which adopts require ments of section 2001.058(e) ); Pierce , 212 S.W .3d at 751 (holding ag ency met require ments of sec tion 2001.058(e) whe re it provided c omprehe nsive explanation).

(A) dia g nose, trea

t, or remove stains or conc retions from human te eth; or (B ) provide surg ical and adjunctive trea tment for a disease, pain, injury , defic iency , defor mity , or phy sical condition of the human teeth, oral cavity , alveolar proce ss, g ums, jaws, or direc tly

rela ted and a djace nt masticatory structure s. Tex. Occ. Code § 251.003( a)( 1)(A) , (B ). All cites to the Texas Adm i n i strative Code are to rules issued by the Texas Boa rd of 3 Dental Examiners. Although the Boa

rd ref err ed to “che cks,” the rec ord ref lects that one chec k was made out 4 to “Dr. A kin” and a

nother to “Char les Akin.” 8Finding of Fact Number 19 I n finding of fac t number 19, the AL J found that Akin was not licensed and was not require d to pla ce his lice nse on retire d status. The Boa rd revised it to rea d that Akin’s license was revoke d and he could not hold himself out as having a “re tired” dental license. The Boa rd stated that the AL J ’s finding inacc urate ly stated the lawand leg al re quirements for having a “r etired lice nse” and beca use Akin did not hold a v al i d license, he could not state that he is a retire d dentist. On appea l, th e Bo ard contends that it did not elabor ate further reg arding finding of fac t number 19 beca

use the same issues wer e addre ssed in its discussion of finding of fac t numbe r 18. We conclu d e that the Boa rd has adequately explained the specific rea son and leg al basis for the chang e. Tex. Gov’t Code § 2001.058(e) ; Froemming , 380 S.W .3d at 793; W ood v. Texas Comm’n

o n Envtl. Quality , No. 13-13-00189- CV, 2015 Tex. App. L EXI S 2139, at *24–32 (Tex

. App.—Corpus Christi Mar. 5, 2015, no pet.) (mem. op.) (upholding multipl e chang es to finding s of fac t where ag ency

explained rea sons, including that AL J misapplied ag ency policies). Finding of Fact Number 24 I n finding of fac t number 24, the AL J found that t h er e wa s no evidenc e Akin was prac ticing dentistry or was paid for prac ticing dentistry in the summer of 2009. The Boa rd revised the finding to say that during that ti m e p er i o d , Ak i n held himself out as a “DDS Retired” and

acc epted chec ks from dental p atients. The Boa rd stated that finding of fac t number 24 did not proper ly apply or interpre t applicable law and ag ency rules. The Boa rd explained that under the law

a person who calls himself “D.D.S.” or “Doc tor” is pr acticing dentistry and that the purpose of the law is to protec t the public from being dece ived. I t further stated as a rea son for its chang e that Akin
9held himself out as “Doc tor” and “D.D.S.,” worke d in a dental prac tice, and rec eived chec ks written

to “Dr

. Akin” from patients who never rec eived the dental service s or reimburse ment. The essenc e 5 of t he Board’ s explanation is that the AL J failed to proper ly apply or i nterpre t the l aw concer ning
t h e p ra ct i ce of dentistry and retire ment from the prac tice of dentistry to the fac ts in evidence. There fore , we c onclude that the Boa rd provided a specific rea son and leg al basis for its a ction and
met the require ments of section 2001.058(e)

. See Tex. Gov’t Code § 2001.058(e ); F r o em mi ng , 380 S.W .3d at 793 (whe re essenc e of board’ s explanation wa s that AL J failed to proper ly apply or interpre t applicable law, ag ency rules, and written policies reg arding sanctions, board met require ments of Rule 107.51(a) (1), which ado p t s require ments of section 2001.058(e) ); cf. Levy

v. Texas State Bd. of

Med. Exam’ rs , 966 S.W .2d 813, 816 (Tex. App.—Austin 1998, no pet.) (whe re board stated g ener ically multipl e rea sons for chang es made but did not specify rea sons for eac h individual chang e, ag ency ’s orde r wa s insufficient under section 2001.058(e )). Conclusion of L aw Number 6 I n conclusion of law number 6, the AL J conclude d that Akin did not violate the law within 12 months prior to his application. The Boa rd modified this conclusion to state that Akin did violate the law w ithin 12 mont hs prior to his application. The B oard e x plained that conc lusion of law number 6 did not acc urate ly ref lect the applicable law and rules providing that Akin’s wea ring

a name tag indicating that he was a retire d dentist when he was neither retire d nor a licensed dentist violated the law and was dishonest. Having found that the Boa rd proper ly modified the finding s of

As previously noted, althoug h the Boa rd ref err ed to “che cks,” the rec ord ref lects that one 5 chec k was made out to “Dr. Akin” and anothe r to “Char les Akin.” 10fac t, we conclude that the Boa rd provided a specific rea son and leg al basi s s u ff i cient to meet the require ments of section 2001.058(e)

. See Tex. Gov’t Code § 2001.058(e) ; Froemming , 380 S.W .3d at 793; W ood , 2015 Tex. App. L EXI S 2139, at *24–32. Conclusion of L aw Number 7 I n conclusion of law number 7, t h e AL J conclude d that Akin did not commit a dishonest or illega l act. The Boa rd modified t h i s co n cl u s i o n to state that Akin did commit a dishonest o r illega l act that was dece ptive to dental patients. The Boa rd stated that the finding s ref lect that Akin held himself out as a dentist and patients wrote Akin chec ks either for perf orming administrative functions or beca use they thought h e was a dentist and that either way he was dishonest or prac ticing dentistry illega lly

. Having found that the Boa rd prop er l y modified the finding s of fac t, we conclude that the Boa rd’s explanation was sufficie nt under section 2001.058(e)

. See Tex. Gov’t Code § 2001.058(e) ; Froemming , 380 S.W .3d at 793; Smith v. Montem a yor , No. 03-02-00466- CV, 2003 Tex. App. L EXI S 5099, at *1, 24–27 (Tex. App.— A u s ti n Ju n e 19, 2003,

no pet.) (mem. op.) (commissioner’s explanation that AL J ’s conclusions fa i l ed t o proper ly apply applicable statute and rule met require ments of sec tion 2001.058(e))

. Conclusion of L aw Number 8 I n conclusion of l aw n u m b er 8 , the AL J conclude d that Akin is fit to perf orm the duties and responsibilities of a dentist. The Boa rd deleted conclusion of law number 8, stating that it wa s not ba sed in fac t or on applica ble law. I t expl ained that the e vidence showed that Akin ha d been unable or unwilling to follow the law while not licensed, indicating he would likely not be able

11to do so if g rante d a license, and that his dishonest, dece ptive, and illega l behavior should not be

rew arde d with a license. We c onclude that the Boa rd’s explanation f

or deleting conclusion of law number 8 satisfies t he requirements of section 2001.058(e) t hat i t state a specific reason and leg al basis for its chang es. See Tex. Gov’t Code § 2001.058(e) ; Texas State Bd. of Dental Exam’ rs

v. Brown , 281 S.W .3d 692, 699–700 (Tex. App.—Corpus Christi 2009, pet. denie d ) (u p h olding board’ s deletion of AL J ’s conclusion of law based on AL J ’s improper application of law); Sanchez , 229 S.W .3 d at 5 1 6 (uphol ding board’ s deletion of conclusion of law as unnece ssary and noting deletion was w ithin board’s discre tion). Conclusion of L aw Number 9 I n conclusion of law number 9, the AL J conclude d that Akin’s application should be g rante d. The Boar d deleted co n cl u s i on of l aw number 9 and reclassified it as a rec ommendation. C i ting authority from this Court and others, and noting its duty to protec t the publi c, t h e Bo ar d explained that the final decision rests with it and that the mere labeling of a rec ommendation by the AL J as a c onclusion of law doe s not chang e its eff ect. Rely ing on section 263.001(4) & (6) of the Occ upations Code, the Boa rd further stated that it has the authority to ref use a license to an applicant who co m m i ts a dis honest or i lleg al practice related to the practice of dentistry or i s found t o have violated t he law w ithin 12 mont hs prior to the applica tion. See Tex. Occ. Code § 263.001( 4), (6)

. The mere labeling of a rec ommendation as to the ultimate outcome as a conclusion of law does not deter mine its binding eff

ect. See Froemming , 380 S.W .3d at 792; Granek v. Texas State Bd. of Med. Exa m’ r s , 1 7 2 S .W.3d 761, 781 (Tex. App.—Austin 2005, no pet.). Nonethele ss, “we have

. . . analy zed whether the require ments o f s ec t ion 2001.058(e) of the APA have been met.” See
12Froemming , 380 S.W .3d at 792; accord Gr a n ek , 172 S.W .3d at 781 (noting that disciplinary

rec ommendation implicated sec t i on 2001.058(e) despite that rec ommendation does not have presumptively binding eff ect)

. Her e, we conclude that the Boa rd sufficie ntly stated a specific rea son and leg al basis for deleting conclusion of law number 9 and rec lassify ing it as a rec ommendation so as to meet the r equire ments of section 2001.0058(e)

. We overrule Akin’s issues as to the B oard’ s compliance with section 2001.058(e)

. 6

Sub stantial Evid ence

Akin also arg ues that under the “substantial evidenc e” standard of revie w the rec ord does not support the Boa

rd’s decision not to issue Akin a dental license. Whil e Akin acknow ledg es the wea ring of the name tag and the rec eipt of the chec ks, he arg ues that neither is sufficie nt to justify

Akin also challeng es the Boa rd’s modifications as “w h olesale chang es” not allowed by 6 section 2001.058(e)

. He contends that subsection (1), conce rning the AL J ’s application or interpr et at i o n o f the law, applies only to conclusions of law and that subsection (3), making a technica l err or a basis for modifica tion, applies only

to findings of

fac t. Consequently , he arg ues, the Boa rd’s chang es to finding s of fac t based on the AL J ’s misapplication or misint erpr etation of the law rathe r than on t ec h n ical err ors was improper. Howeve r, the plain lang uag e of section 2001.058(e) contains no such limit ation in the application of subsections (1) and (3). See Tex. Gov’t Code § 2001.058(e) ; Marks v. St. Luke’s Episcopal Hosp. , 319 S.W .3d 658, 663 (Tex. 2010). Nor has this Court inferr ed such a limit ation in apply ing section 2001.058(e)

. See, e.g. , Madden v. State Bd. for Educator Certification , No. 03-11-00584- CV, 2014 Tex. App. L EXI S 5444, at *17–20 (Tex. App.—Austin May 22, 2014, pet. filed) (mem. op.) (af firming trial court’s judgme nt upholding board chang es to both finding s of fac t and co n cl u s i o n s o f law on g round AL J ’s finding s and conclusions wer e inconsistent with board p o l i cies); Smith v. Montemay or , No. 03-02-00466- CV, 2003 Tex. App. L EXI S 5099, at *1, 24–27 (Tex. App.—Austin J une 19, 2003, no pet.) (mem. op.) (af firming trial court’s judgme nt upholding commissioner’s modifications of both findings of fac t and conclusions of law based on AL J ’s failure to proper ly apply and interpre t rule and holding that “[a]n ag ency enjoy s complete discretion in modify ing an AL J ’s finding s and conclusions when those finding s and conclusions ref lect a lack of understanding or misapplication of the exis ting laws, rules, or policies”) . We do not find Akin’s arg uments on this point persua sive. 13denial of the license, i.e., that the Boa rd misconstrued the statute. The Act sets out specific g rounds for ref usal to issue a license, including if the applicant commits a dishonest or illega l prac tice in or

connec ted to denti s t ry or is found to have violated a law of this state rela ting to dentistry within 12 months prior to filing the application. See Tex. Occ

. Code § 263.001(4), (6). “Unde r the Dental Practice Act, t h e leg islature has deleg ated broad authority to the Board to adopt and enfor ce rules

nece ssary to ensure compliance with state laws relat i n g to the prac tice of dentistry and to protec t public health and safe ty .” Froemming , 380 S.W .3d at 793. Howeve r, the Boa rd may not reinstate

or reissue a convicted felon’s dental license “unless an ex p re s s deter mination is made that the reinstateme nt or reissuanc e of the license or reg istration is in the best interests of the public and the person whose license or reg istration was suspended or revoke d.” 22 Tex. Admin. Code § 101.8(d) (Persons with Criminal Ba ckg rounds).

W earing the Name Tag Akin first arg ues that there is not substantial e vidence to support the Boa rd’s c laim that Akin’s wea

ring a name tag that rea d “Charle s Akin, D.D.S. Retired” constituted the prac tice of dentistry under section 251.003 of the Act. He contends that beca use the name tag stated that Akin

was retire d, it did not convey to the public that he was able to perf orm the dental activities listed in section 251.003. See Tex. Occ

. Code § 2 5 1

. 0 0 3 (a)(1)( A), (B ). This arg ument hinge s on Akin’s contention that a retire d dentist cannot perf orm any of the acts set out in section 251.003. Howeve r, a retired d en tist may perf orm those acts in cer

tain circ umstances. See id. § 256.102(f) (dentist on retire d s t atus may perf

orm an activity reg ulated by the Act if prac tice consists only of “voluntary char ity car e”) ; 22 Tex. Admin. Code § 101.7(c) (same and defining “voluntary char ity car e”)

. Akin
14arg ues that there was no evidenc e that he was perf orming voluntary char ity car e. Howeve r, the question is not whether he was actua lly perf orming dental work, char ity or otherwise; the question is whether by wea

ring the name tag , he prac ticed dentistry by represe nting that he could perf orm acts of dentistry

. See Tex. Occ

. Code § 251.003(a) (1). Moreove r, as s ec t i o n 2 5 6 .102 makes clea r, a dentist’s retire ment is r eg ulated by the Act, which require s the dentist to apply for retire d status on

a form presc ribed by the Boa rd befor e expiration of his license. See id. § 256.102(a)

. Although Akin’s expert witness opined that he did not believe Akin held himself out a s a dentist by wea ring the name tag beca

use “D.D. S

. ” is a “deg ree . . . g iven by a university ,” he acknow ledg ed that to retire , a dentist has to “c omply with the Boa

rd’s code” and must be a “holder of a valid or current Texas dental license” to “apply to the Boa rd to have the

. . . license place d on retire d status.” Akin’s expert witness also testified that Akin was not the holder of a valid Texas dental license and did not apply to the Boa

rd for retire d status. The evidence am o u n t s t o m o re than a mere scintilla, and

rea sonable minds could have conclude d that Akin held himself out as a dentist by wea ring the name tag
. See Texas State Bd. of Dental Exam’ rs v. Sizemore , 759 S.W .2d 114, 116 (Tex. 1988) (stating that ag ency decision wil l be upheld if rea sonable minds could have rea ched result). We there fore conclude that there was substantial evidenc e to support the Boa rd’s conclusion that by wea ring the name tag Akin held hi mself out as a dentist and thus violated t he law and enga g ed in dishonesty

. S ee Tex. Occ

. Code §§ 251.003(a) (1), 263.001(4), (6); Froemming , 380 S.W .3d at 790–91, 7 9 4 ; Pierce , 212 S.W .3d at 751.

15Acc epting the Check s Akin also arg ues that there is not substantial e vidence to suppor t the Boa rd’s c laim that his rec eipt of the chec ks from Dr. Her ron’s prac tice constitutes the illega l prac tice of dentistry or some other

illega l act. Akin foc uses on the che ck admitted into e vidence that was a ddresse d to “Charle s Akin,” not “Dr

. Akin,” and arg ues that beca use there was no evidenc e who told the complainant to leave t h e chec k pay ee blank or who put Dr. Akin’s name on the chec k, the chec k
cannot serve as a basis for the claim that Dr. Akin was prac ticing dentistry

. Akin also contends that the Boa rd has not cited any law that Dr. Akin alleg edly broke. Howeve r, reg ardle ss of ho w t he chec ks wer e made out or who wrote in Akin’s name, it is undisputed that Akin acc epted, endorse d, and deposited at least two chec ks from dental patients for dental service s they did not rec eive. This 7 is more than a mere scintilla of ev i d en ce , and rea sonable minds could have conclude d that by

acc epting and depositing the chec ks Akin committed a dishonest or illega l act. See Tex. Occ

. Code § 263.001(4); Sizemore , 759 S.W .2d at 116. There fore , we conclude that the Boa rd’s conclusion that i n ac ce p ting and depositing the chec ks Akin committed a “dishonest and/or illega l prac tice in or

co nnecte d to dentistry that was dece ptive to dental patients” under section 263.001 of the Act i s supported under the “substantial evidenc e” standard of revie w. See Tex. Oc c. Code § 263.001(4) , (6); Froemming , 380 S.W .3d at 790, 794; Pierce , 212 S.W .3d at 751.

Fur thermore , the Boa

rd made no express finding that reissuanc e of Akin’s license is in the best interest of the public. See 22 Tex. Admin. Code § 101.8(d) (B oard may not reinstate or

Fur ther, once Akin lear

ned that the patients did not rec eive the service s for which they paid, 7 h e d i d n o t return the money , an act that is not depende nt on instruction from the Boa rd, despite Akin’s claims to that eff

ect. 16reissue convicted felon’s license unless express deter mination is m ad e that reinstateme nt or

re issuance is in best interests of public and person whose license was suspended or re v o k ed ). Rather, the Boa

rd fo u n d t h at Ak i n had been unable or unwilling to abide by the laws that g overn dentistry when he was not licensed, he was unlikely to do so if licensed, and his dishonest, dece ptive, and illega l behavior should not be rew arde d by the g ranting of a dental license. We overr ule Akin’s issues as to substantial evidence

.
CONCLUSION

Having overr

uled Akin’s issues, we aff irm the trial cour

t’s judgme nt.

__________________________________________ Melissa Goodwin, Jus tice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field Affir med Filed: Apr il 9, 2015

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