Luis E. Guerrero-Ramirez, M.D. v. Homer Goehrs, Executive Director of the Texas State Board of Medical Examiners

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

NO. 3-92-160-CV

LUIS E. GUERRERO-RAMIREZ, M.D.,

APPELLANT

vs.

HOMER GOEHRS, EXECUTIVE DIRECTOR OF THE

TEXAS STATE BOARD OF MEDICAL EXAMINERS, ET AL.,

APPELLEES

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT

NO. 91-14745, HONORABLE JOHN K. DIETZ, JUDGE

PER CURIAM

Appellant Luis E. Guerrero-Ramirez, M.D. appeals from an order of the district

court of Travis County denying his request for temporary injunctive relief. See Tex. Civ. Prac.

& Rem. Code Ann. § 51.014 (Supp. 1992). We will affirm the order of the district court.

The Texas State Board of Medical Examiners initiated a disciplinary proceeding

to revoke Guerrero-Ramirez's license to practice medicine pursuant to the Medical Practice Act,

Tex. Rev. Civ. Stat. Ann. art. 4495b (Supp. 1992) ("MPA"). See MPA § 4.01(a) (Supp. 1992).

In March 1992, Guerrero-Ramirez filed his first amended original petition for temporary

restraining order, temporary injunction and permanent injunction in the district court of Travis

County seeking to enjoin appellees (1) from proceeding against him until the Board held a hearing

in compliance with the Administrative Procedure and Texas Register Act, Tex. Rev. Civ. Stat.

Ann. art. 6252-13a (Supp. 1992) ("APTRA"). Guerrero-Ramirez alleged that the hearing

examiner arbitrarily and capriciously overruled a motion for continuance of the agency hearing

and, thereby, denied Guerrero-Ramirez his right to counsel. See MPA § 4.06 (Supp. 1992);

APTRA § 14(r) (Supp. 1992). After a hearing, the district court denied the request for a

temporary injunction.

In an appeal from an order denying a request for a temporary injunction, appellate

review is confined to the validity of the order denying the injunctive relief. The merits of the

lawsuit are not presented for review. Davis v. Huey , 571 S.W.2d 859, 861-62 (Tex. 1978);

Public Util. Comm'n v. Coalition of Cities for Affordable Util. Rates , 776 S.W.2d 224, 226 (Tex.

App. 1989, no writ). Indeed, appellate consideration of the merits of the underlying lawsuit is

error. Davis , 571 S.W.2d at 862 ; Hertz Corp v. State Dept. of Highways & Pub. Transp. , 728

S.W.2d 917, 919 (Tex. App. 1987, no writ). This Court may reverse the district court's order

only on a showing of a clear abuse of discretion. Transport Co. of Tex. v. Robertson Transp. ,

261 S.W.2d 549, 552 (Tex. 1953).

In one point of error, Guerrero-Ramirez contends that the district court abused its

discretion in denying his request for a temporary injunction. To be entitled to the injunction,

Guerrero-Ramirez had the burden to demonstrate both a probable right to recover and a probable,

irreparable injury that would occur if the court did not order an injunction. Tex. Civ. Prac. &

Rem. Code Ann. § 65.011 (3) (Supp. 1992); Robertson Transp. , 261 S.W.2d at 552 ; Rutherford

Oil Corp. v. General Land Office , 776 S.W.2d 232, 234 (Tex. App. 1989, no writ). We conclude

that the district court did not abuse its discretion because Guerrero-Ramirez did not demonstrate

a probable right to recover as he had not exhausted his administrative remedies.

We first note that the underlying lawsuit is not an action for declaratory judgment

pursuant to APTRA § 12 (Supp. 1992). In fact, § 12 expressly prohibits its use to "delay or stay

a hearing . . . if a suspension, revocation, or cancellation of a license by an agency is at issue

before the agency." APTRA § 12 (Supp. 1992). The only proceeding remaining in the district

court is the request for a permanent injunction to enjoin the Board from proceeding against

Guerrero-Ramirez.

Generally, a party to an administrative proceeding is not entitled to judicial review

of the agency actions until the party has pursued correction through the prescribed process.

APTRA § 19(a) (Supp. 1992); Texas Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist. , 830

S.W.2d 88, 90 (Tex. 1992); Texas State Bd. of Examiners in Optometry v. Carp , 343 S.W.2d

242, 246-47 (Tex. 1961); see APTRA § 19(e) (Supp. 1992). A party who files a lawsuit while

a dispute is still pending before the Board obviously has not exhausted his administrative

remedies. See MPA § 2.09(n); APTRA § 16(c),(e) (Supp. 1992). On appeal, Guerrero-Ramirez

does not assert that the instant proceeding falls within any exception to the general rule of

exhaustion of administrative remedies. See generally City of Sherman v. Public Util. Comm'n ,

643 S.W.2d 681, 683 (Tex. 1984); Public Util. Comm'n v. Pedernales Elec. Coop., Inc. , 678

S.W.2d 214, 219-20 (Tex. App. 1984, no writ).

The legislature has expressly delegated the authority to regulate the practice of

medicine to the Board. MPA §§ 2.01, 2.09(a), 4.01. Section 1.02 of the MPA provides that the

Board "should remain the primary means of licensing, regulating, and disciplining the individual

physicians and surgeons who are licensed to practice medicine." MPA § 1.02(2) (Supp. 1992).

See Texas Dept. of Human Servs. v. ARA Living Centers of Tex., Inc. , No. 3-91-422-CV (Tex.

App.Austin, July 1, 1992, n.w.h.); D&S Inv., Inc. v. Mouer , 521 S.W.2d 118, 120 (Tex. Civ.

App. 1975, writ ref'd n.r.e.) (doctrine of primary jurisdiction).

More particularly, the determination of the motion for continuance, a matter that

involves the Board's control of its administrative docket, was a matter within the discretionary

authority of the hearing examiner. Gibraltar Sav. Ass'n v. Franklin Sav. Ass'n , 617 S.W.2d 322,

327-28 (Tex. Civ. App. 1981, writ ref'd n.r.e.). The Board, which has the authority and

responsibility to determine in the first instance whether to take certain action, is not subject to

restraint by the courts whenever a party alleges that the Board has reached an erroneous

conclusion on a preliminary or procedural question. Carp , 343 S.W.2d at 246 .

If aggrieved by the denial of the motion for continuance, Guerrero-Ramirez may

seek judicial review of the Board's final order pursuant to the MPA and APTRA. MPA § 4.09

(Supp. 1992); APTRA § 19 (Supp. 1992). If the Board determines to revoke Guerrero-Ramirez's

license, the Board may provide that its order be probated. MPA § 4.11 (Supp. 1992). If

Guerrero-Ramirez does file a petition for judicial review in the district court of Travis County,

he may then request that court to enjoin or stay the Board's decision. MPA § 4.08 (Supp. 1992);

see Carp , 343 S.W.2d at 246 (if license revoked, party may seek review in district court which

may then stay or enjoin agency decision if necessary to protect party's rights).

Because the doctrine of exhaustion of administrative remedies precludes a probable

right of recovery, the trial court's denial of the request for a temporary injunction was not an

abuse of discretion. The point of error is overruled

The order of the district court is affirmed.

[Before Justices Powers, Jones and Kidd]

Affirmed

Filed: August 12, 1992

[Do Not Publish]

1. Appellees are Homer Goehrs, executive director of the Texas State Board of Medical

Examiners; Mark Foster, hearing examiner; and the fifteen members of the Board. We refer

to the named appellees and the Board collectively as "the Board."