The opinion
ACCEPTED
03-13-00502-CV
4916661
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/16/2015 1:25:40 PM
JEFFREY D. KYLE
CLERK
No. 03-13-00502-CV
______________________________________________________________________________
FILED IN
IN THE 3rd COURT OF APPEALS
COURT OF APPEALS AUSTIN, TEXAS
FOR THE 4/16/2015 1:25:40 PM
THIRD SUPREME JUDICIAL DISTRICT JEFFREY D. KYLE
OF Clerk
TEXAS
AT AUSTIN, TEXAS
______________________________________________________________________________
RODERICK LEE MITCHELL, M.D.
Appellant,
vs.
TEXAS MEDICAL BOARD,
Appellee.
______________________________________________________________________________
Appeal from the 126th Judicial District Court
of Travis County, Texas
______________________________________________________________________________
MOTION FOR REHEARING EN BANC
TO THE HONORABLE COURT OF APPEALS:
RODERICK LEE MITCHELL, M.D., Appellant in this cause, makes this
Motion for Rehearing En Banc of the judgment of a panel of this Court rendered
on April 15, 2015, and in support of said motion would respectfully show the
Court the following:
I.
1. Point of Error: The panel of the Court of Appeals erred in basing its
opinion on the fact that the Appellant attended the contested case hearing below.
2. Argument and Authorities: The fact that the Appellant attended the
contested case hearing below is not and has not been the issue the Appellant has
sought review in this Court and in the trial court below. The issue is that neither the
Appellant nor his attorney of record, Craig Washington, was properly served with
the Proposal for Decision in time to properly file any objections to the proposal.
Being timely served is a matter of Due Process under both the United States and
Texas Constitution. Such an error by Administrative Judge Roy Scudday,
concerning service, meets all of the criteria of TEX. GOV’T CODE § 2001.174.
Pursuant to 1 TEX. ADMIN. CODE § 155.3(g), TEX. R. CIV. P. 21a must be
harmonized with 1 TEX. ADMIN. CODE § 155.507(b), since service of the Proposal
for Decision was challenged in the trial court and in the Motion for Rehearing
before the Texas Medical Board.
The panel, in its opinion, has impermissibly shifted the burden of proof
concerning service. This Court is requested to take judicial notice that the Proposal
for Decision does not contain a certificate of service. Once service has been
challenged, the burden is on Judge Scudday and the Texas Medical Board to show
valid service of the Proposal for Decision. That burden does not shift to the litigant
challenging service. See Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005); In
re E.A., 287 S.W.3d 1, 5 (Tex. 2009); Wembley Inv. v. Herrera, 11 S.W.3d 924,
927 (Tex. 1999). Neither Judge Scudday nor the Texas Medical Board offered any
evidence in the trial court below to show valid service pursuant to Supreme Court
of Texas precedent that controls the matter. By not following said precedent, the
Appellant’s Due Process Rights have been violated thus “vitiating” the Proposal
for Decision, the substantial evidence rule notwithstanding. See, e.g., Lewis v.
Metropolitan Savings and Loan Association, 550 S.W.2d 11, 13-16 (Tex. 1977).
TEX. R. APP. P. 47.1 required the panel to address the issue as framed by the
Appellant in his briefs and motions and not to ignore or change them. See, e.g.,
Lone Star Gas Co. v. Railroad Commission, 767 S.W.2d 709, 710-711 (Tex.
1989).
II.
1. Point of Error: The panel of the Court of Appeals erred in affirming
the trial court’s judgment on the basis that that after receiving the Board’s letter on
November 9, 2012, Attorney Washington never made a request for an extension of
time to file exceptions to the Proposal for Decision.
2. Argument and Authorities: The Plaintiff had only has fifteen (15) days
from the time the Proposal for Decision was forwarded to the Appellee to file a
response. That requirement is jurisdictional. See 22 TEX. ADMIN. CODE § 107.50.
On November 8, 2012, it is alleged that Attorney Washington was notified that the
Board would consider the Proposal for Decision on November 30, 2012. This
Court, en banc, is requested to take judicial notice that the November 8, 2012 date
of the letter and the November 30, 2012 date of notice for consideration of the
Proposal for Decision are long after the deadline expired for responding to the
Proposal for Decision. 1 Lastly, the November 8, 2012 letter specifically and
unambiguously states that, “The Board will not listen to or consider new or
additional testimony or matters which are not in the record.” (C.R. 97.) See also
22 TEX. ADMIN. CODE § 107.49. That statement is a judicial admission by the
Appellee and for the panel of the Court to intimate that the Appellant could make a
presentation and/or rebuttal to the Proposal for Decision at that late date stretches
credulity to its very limits. The Appellant’s Equal Protection and Due Process
Rights were violated by not being properly served, thus not allowing him his
statutory right to respond and rebut the Proposal for Decision. The panel of the
Court has used “judicial fiat” to craft a doctrine and decision which is contrary to
the applicable statutory authority.
Pursuant to TEX. R. APP. P. 47.1, the panel of this Court should have
addressed both the Appellant’s issue as presented in this appeal and the panel did
1
The time that elapsed from October 1, 2012 to November 8, 2012 is thirty-nine (39) days.
not have the authority to ignore them. This Court, en banc, is respectfully
requested to correct this injustice. See, e.g., Lone Star Gas Co., supra.
WHEREFORE, PREMISES CONSIDERED, Appellant requests that the
Court, en banc, grant this motion, that the Court, en banc, vacate the opinion and
judgment of the panel, that the judgment of the trial court be reversed, that the
Final Order of the Texas Medical Board be reversed and remand the case with
instructions to allow the Appellant to respond to the Proposal for Decision.
Respectfully submitted,
WILLIE & ASSOCIATES, P.C.
By:/s/ Joseph R. Willie, II, D.D.S., J.D.
Joseph R. Willie, II, D.D.S., J.D.
4151 Southwest Freeway, Suite 490
Houston, Texas 77027
(713) 659-7330
(713) 599-1659 (FAX)
SBOT# 21633500
attyjrwii@wisamlawyers.com
ATTORNEY FOR APPELLANT
RODERICK LEE MITCHELL, M.D.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was
served via e-service to Ted A. Ross, Assistant Attorney General, P.O. Box 12548,
Capitol Station, Austin, Texas 78711-2548, on the 15th day of April, 2015.
/s/ Joseph R. Willie, II, D.D.S., J.D.
Joseph R. Willie, II, D.D.S., J.D.
CERTIFICATE OF COMPLIANCE
I certify that the Motion for Rehearing En Banc submitted complies with
TEX. R. APP. P. 9 and the word count of this document is 879. The word processing
software used to prepare the document and to calculate the word count is Windows
7.
/s/ Joseph R. Willie, II, D.D.S., J.D.
Joseph R. Willie, II, D.D.S., J.D.