stating a governmental official acts ultra vires when “the conduct conflicts with the law itself”
How later courts described this case
- stating a governmental official acts ultra vires when “the conduct conflicts with the law itself”
- when “his acts conflict with the law itself”
Written by the judges who cited it.
The opinion
Supreme Court of Texas
══════════
No. 20-0117
══════════
Robert W. Van Boven M.D., D.D.S.,
Petitioner,
v.
Scott Freshour, Margaret McNeese, Chris Palazola, Amy
Swanholm, Timothy Webb, and Sherif Zaafran, M.D., in their
Official Capacities as Officers of the Texas Medical Board,
Respondents
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════
JUSTICE BOYD, dissenting.
The only issue this case presents is whether the Texas Medical
Board members acted ultra vires by filing a Revision-to-Action Report
instead of a Void Report with the National Practitioner Data Bank.
Because they did not, I must respectfully dissent.
The Court holds that the Board acted ultra vires by filing the
Revision-to-Action report. Ante at __. But the Court does not specify a
single law with which the Board’s action conflicted or without reference
to which the Board acted. See Honors Acad., Inc. v. Tex. Educ. Agency,
555 S.W.3d 54, 68 (Tex. 2018) (stating a governmental official acts ultra
vires when “the conduct conflicts with the law itself”); Hous. Belt &
Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 (Tex. 2016)
(when “his acts conflict with the law itself”), 163 (when he acts “without
reference to . . . the law authorizing the official to act”). The best the
Court can do is assert that the Board violated section 164.060(b)(4) of
the Texas Occupations Code. Ante at ___ n.41. But that section merely
required the Board to report its disciplinary actions to the Secretary’s
designee. TEX. OCC. CODE § 164.060(b)(4). No one disputes that the
Board reported its disciplinary actions against Dr. Robert Van Boven to
the Secretary’s designee. The dispute is over whether it did so correctly.
The Board’s rules required it to report the information “according
to applicable federal rules and statutes.” 22 TEX. ADMIN. CODE § 187.5.
Federal law required the Board to report “any revision of [an] action
originally reported,” including but “not limited to, reversal of a
professional review action or reinstatement of a license.” 45 C.F.R.
60.6(b) (emphasis added). The federal regulations also required each
report to be classified “in accordance with a reporting code adopted by
the Secretary.” Id. § 60.8(b)(12).1 Based on this direction, as well as the
1 The Secretary adopted and published a comprehensive coding system
that includes 317 codes for adverse-action classifications. See U.S.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, HEALTH RESOURCES AND
SERVICES ADMINISTRATION, & BUREAU OF HEALTH WORKFORCE, NATIONAL
PRACTITIONER DATA BANK (NPDB) CODE LISTS (2021) [hereinafter CODE
LISTS], available at https://www.npdb.hrsa.gov/software/CodeLists.pdf. The
Board filed its Revision-to-Action report with the Revision-to-Action Code
“License Restored or Reinstated, Complete (1280).” See id. at 7.
2
“very detailed guidance” in the Data Bank’s Guidebook, 2 ante at __, the
Board determined that its final order revised the initial adverse action
and therefore determined that federal law required it to file a Revision-
to-Action report. Although the Court disagrees with that decision, it
cannot identify any state or federal law the decision violated. The
Board’s filing of a Revision-to-Action report therefore cannot be an ultra
vires action.
I.
Data Bank Reports
Texas and federal law require the Board to report its disciplinary
actions against physicians to the Data Bank, 42 U.S.C. §§ 11101, 11132,
11134; 45 C.F.R. §§ 60.1, .8; TEX. OCC. CODE § 164.060(b)(4), and to do
so “according to applicable federal rules and statutes,” 22 T EX. ADMIN.
CODE § 187.5. The Data Bank requires those reports to be submitted in
one of six formats: (1) an “Initial Report,” (2) a “Correction Report,” (3) a
“Void Report,” (4) a “Revision-to-Action Report,” (5) a “Correction of
2 The 2015 edition of the Guidebook was in use at the time of the events
in this case. See U.S. Department of Health and Human Services, Health
Resources and Services Administration, & Bureau of Health Workforce, NPDB
Guidebook (2015) [hereinafter 2015 GUIDEBOOK], available at
https://www.npdb.hrsa.gov/resources/2015NPDBGuidebook.pdf. A newer
version, updated in 2018, is available on the Data Bank website. See U.S.
Department of Health and Human Services, Health Resources and Services
Administration, & Bureau of Health Workforce, NPDB Guidebook (2018),
available at https://www.npdb.hrsa.gov/resources/NPDBGuidebook.pdf. The
Guidebook is intended to be a “policy manual.” 2015 G UIDEBOOK at A-1.
3
Revision to Action” Report, and (6) a “Notice of Appeal.” 2015
GUIDEBOOK at E-7 to E-10; CODE LISTS at 52.3
The Medical Board first submitted an Initial Report to the Data
Bank after a three-person disciplinary panel conducted an expedited
hearing, found based on evidence that allowing Dr. Van Boven to
continue his usual practice while the Board investigated and resolved
complaints filed against him would present a “continuing threat to the
public welfare,” and entered an order temporarily restricting his medical
license. See TEX. OCC. CODE § 164.059(b); 22 TEX. ADMIN. CODE
§§ 187.57, .61.4 The Initial Report described the allegations made
against Van Boven, the disciplinary panel’s finding, and the temporary
restriction placed on his medical license. The Board’s report noted that
the restriction was of “indefinite” duration. Although Van Boven
contends that the Board should not have temporarily restricted his
license, no one disputes that, having done so, the Board properly
3 “Notice of Appeal” Reports are notifications to the Data Bank “that a
subject has formally appealed a previously reported adverse action.” CODE
LISTS at 52. Certain reporting entities “must submit a Notice of Appeal
whenever a previously reported adverse action is on appeal,” id.; see 45 C.F.R.
§ 60.6(b), including “[a]ny adverse action taken by the licensing or certification
authority of the state as a result of a formal proceeding,” 45 C.F.R. § 60.9(a)(1).
Temporary suspension and restriction proceedings before the Board are not
“formal proceedings.” See 22 TEX. ADMIN. CODE § 187.61 (noting that a
temporary restriction proceeding is an “ancillary proceeding” that occurs prior
to filing a formal complaint to begin formal proceedings).
4 “‘Continuing threat to the public welfare’ means a real danger to the
health of a physician’s patients or to the public from the acts or omissions of
the physician caused through the physician’s lack of competence, impaired
status, or failure to care adequately for the physician’s patients . . . .” TEX. OCC.
CODE § 151.002(a)(2).
4
reported that action by filing its Initial Report in accordance with
federal and state law.
After investigating the complaints, the Board’s staff decided to
pursue a formal disciplinary action against Van Boven before the State
Office of Administrative Hearings. After an evidentiary hearing,
however, the administrative law judge issued a proposed decision
concluding that the Board staff “failed to prove, by a preponderance of
the evidence, that Dr. Van Boven is subject to sanction” for committing
“unprofessional or dishonorable conduct that is likely to deceive or
defraud the public.” TEX. OCC. CODE § 164.052(a)(5).5 The Board
accepted the administrative law judge’s findings and conclusions, see id.
§ 164.007(a), and issued a final order dismissing the complaints.
The Board then submitted a Revision-to-Action Report to the
Data Bank, explaining that, based on the administrative law judge’s
findings, the Board had “restored or reinstated” Van Boven’s license and
“entered a final order dismissing the Board staff’s complaint,” that the
matter was “complete,” and that the final order “supersedes all previous
orders.”
Van Boven filed this suit arguing that the “submission of a
Revision to Action Report was a ultra vires act” and that the Board had
a “ministerial” duty to submit a Void Report to the Data Bank. A “Void
Report” withdraws a previously submitted report “in its entirety,” so
that the previous report is “removed” from the physician’s “disclosable
5“[U]nprofessional 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.” TEX. OCC. CODE § 164.053(a)(1).
5
record.” 2015 GUIDEBOOK at E-8. According to the Data Bank’s
Guidebook, a Void Report should be filed when the previously reported
adverse action “was overturned on appeal.” Id. (emphasis added).6 As an
example, the Guidebook explains that if a state medical-licensing agency
revokes a physician’s license and submits an Initial Report on that
action, but the revocation is later “overturned by a State court,” the
medical board “must void the Initial Report.” Id.
By contrast, a “Revision-to-Action Report” describes a new action
that modifies a previously reported action, so that instead of replacing
or withdrawing the initial report, “[b]oth reports become part of the
disclosable record.” Id. at E-8 to E-9; see id. at E-15 (“A Revision-to-
Action Report is used to submit an action that relates to and/or modifies
an adverse action previously reported to the [Data Bank].”). According
to the Guidebook, a Revision-to-Action Report should be filed when the
reporting agency (1) imposes “additional sanctions” on the physician
based on the “previously reported incident,” (2) extends or reduces the
length of the previously reported adverse action, (3) reinstates the
physician’s license, or (4) when “the original suspension or probationary
6 The Guidebook also states that a Void Report is appropriate when the
Initial Report “was submitted in error” or the previously reported adverse
action “was not reportable because it did not meet [the Data Bank’s] reporting
requirements.” 2015 GUIDEBOOK at E-8. Van Boven does not rely on either of
these reasons. The Code Lists include only three codes for void reports, aligning
with the three reasons for Void Reports described in the Guidebook: V0, when
“[t]he report was submitted in error,” V1, when “[t]he action was not reportable
because it did not meet NPDB reporting requirements,” and V2, when “[t]he
action was overturned on appeal” or “the action was reversed because the
original action should never have been taken.” CODE LISTS at 53.
6
period has ended.” Id. at E-9.7 As examples, the Guidebook explains that
if a state licensing agency reports that it has suspended a physician’s
license for an indefinite period, it must file a Revision-to-Action Report
when it reinstates the license. Id. at E-15.
In summary—and as the Data Bank explained in letters it sent
to Van Boven rejecting his complaints—a Void Report “is appropriate
when an action is overturned or vacated, not when an action is modified
or superseded.” See, e.g., id. at E-67 (explaining that if a state licensing
agency files an Initial Report that it has revoked a physician’s license
and a court on appeal modifies the discipline to probation, the agency
should file a Revision-to-Action Report; but if the court overturns the
agency’s order, the agency should file a Void Report). Because the
Board’s final order stated that Van Boven’s license was “no longer
restricted,” the Data Bank concluded that the Board intended to
“modify” the initial temporary-restriction order by ending and removing
the restriction, thus “updating the initial action,” not to “overturn or
vacate the Initial Order and restriction all together.” Based on this
understanding, the Data Bank concluded that the Board was “legally
required” to file the Revision-to-Action Report.
As the Court explains, whether Van Boven is correct that the
federal regulations and Guidebook required the Board to file a Void
Report depends on the nature of the Board’s final order and its effect on
7See also 45 C.F.R. § 60.6(b) (requiring reporting agencies to “report
any revision of the action originally reported” and explaining that “[r]evisions
include . . . reinstatement of a license”); CODE LISTS at 7 (providing the
“Revision to Action” code for “License Restored or Reinstated, Complete,” used
by the Board in its Revision-to-Action Report).
7
the previous temporary-restriction order under Texas law. Specifically,
the question is whether the final order “modified or superseded” the
temporary order (in which case the Board properly filed a Revision-to-
Action Report) or “overturned or vacated” the temporary order (in which
case the Board should have filed a Void Order). Texas law confirms that
the final order, although related to the temporary-restriction order, is
the result of a separate proceeding that did not “overturn” the initial
order. Instead, it “modified” the order by bringing the temporary
restriction to an end.
A. Disciplinary proceedings under Texas law
The Texas Medical Practice Act authorizes—and indeed,
requires—the Board to impose disciplinary sanctions against licensed
physicians who violate the Act or a Board rule, engage in other
prohibited conduct, or who “pose[] a continuing threat to the public
welfare.” TEX. OCC. CODE §§ 164.001(a)–(c), .051–.058. To impose such
sanctions, the Board must initiate a disciplinary proceeding that
involves a two-step process. First, the Board must conduct “an Informal
Show Compliance proceeding and settlement conference” (an ISC) with
the physician and attempt to resolve the complaint informally. 22 T EX.
ADMIN. CODE § 187.2(21); see TEX. OCC. CODE §§ 164.003–.004. If that
effort is unsuccessful, the Board must then file a formal complaint with
the State Office of Administrative Hearings for formal resolution as a
contested case under the Administrative Procedures Act. T EX. OCC.
CODE §§ 164.005–.006. After the administrative law judge conducts a
formal hearing and issues findings of fact and conclusions of law
regarding the complaint, the Board cannot change those findings and
8
conclusions but instead must either enter a final order based on those
findings and conclusions or appeal the findings and conclusions by filing
a suit for judicial review in a Travis County district court. Id.
§§ 164.007–.0072. If the Board enters a final order imposing a
disciplinary sanction, the physician may appeal that order by filing suit
in the district court. Id. § 164.009.
But also within this statutory scheme, section 164.059 authorizes
the Board to temporarily suspend or restrict a physician’s license on an
expedited basis pending the investigation, filing, and two-step
proceeding to resolve a formal complaint. To temporarily suspend or
restrict a license, a disciplinary panel consisting of three Board members
must determine based on evidence that the physician’s “continuation in
practice” would “constitute a continuing threat to the public welfare.”
Id. § 164.059(a)–(b); see also 22 TEX. ADMIN. CODE §§ 187.55–.62. If the
panel imposes a temporary suspension or restriction, it must then
initiate the two-step disciplinary proceeding by conducting an ISC and,
if that is unsuccessful, filing a formal complaint with the State Office of
Administrative Hearings, “as soon as practicable.” T EX. OCC. CODE
§ 164.059(e)–(f); see Tex. Med. Bd. v. Wiseman, No. 03-13-00210-CV,
2015 WL 410330, at *2 (Tex. App.—Austin Jan. 30, 2015, pet. denied)
(mem. op.) (describing process for the Board’s temporary suspensions
and restrictions).
The Medical Practice Act and the Board’s rules make clear that a
temporary-suspension-or-restriction proceeding and a two-step
disciplinary proceeding are two separate, although related, proceedings.
“A temporary suspension or restriction proceeding is ancillary to a
9
disciplinary proceeding concerning the licensee’s alleged violation(s) of
the Act.” 22 TEX. ADMIN. CODE § 187.61(a). An order temporarily
suspending or restricting a physician’s license “is effective immediately
on the date entered and shall remain in effect until a final or further
order of the board is entered in the disciplinary proceeding.” Id.
§ 187.61(b) (emphasis added).8 The result of these two ancillary
processes is that a physician’s license may be suspended or restricted
while the formal proceedings progress. But as discussed below, the two-
step disciplinary proceeding does not evaluate the merits of the
temporary-restriction order.
8 We have not previously addressed whether or when a physician may
appeal from a temporary-suspension-or-restriction order. The Court states
that the “statutory and regulatory provisions specifically applicable to
physician discipline do not provide for an administrative appeal from a
disciplinary panel order.” Ante at __. And it “express[es] no view on whether
judicial review is available.” Id. at __ n.14.
A temporary-suspension-or-restriction order qualifies as a “disciplinary
action,” see TEX. OCC. CODE §§ 164.001, .004, .051, .060, and any person whose
license is “subject to . . . disciplinary action by the board may appeal to a Travis
County district court not later than the 30th day after the date the board
decision is final,” id. § 164.009 (emphasis added). If a temporary-suspension-
or-restriction order is a “final” order, the physician may appeal that order
directly, immediately after the disciplinary panel enters it. Historically, the
Medical Board’s temporary-restriction orders have explicitly stated that they
were “final” orders. See, e.g., Wiseman, 2015 WL 410330, at *3 n.8. The Third
Court of Appeals, however, has held that a temporary-restriction order is not
a “final” order, so a physician who desires to appeal a temporary-restriction
order may do so only after the Board completes the two-step disciplinary
proceeding and enters a final order. Id. at *3. In either event, it appears that
physicians can appeal a temporary-restriction order, either as soon as it is
entered or after a final order is entered. The parties here, however, have not
briefed the issue of when a physician may appeal a temporary-restriction
order.
10
B. “Overturned” or “modified”
The question here is whether, under this Texas regulatory
scheme, the Board’s final order dismissing the formal complaints
against Van Boven for lack of evidence of a sanctionable violation
“overturned” the temporary-restriction order “on appeal” (and thus
required the Board to file a Void Report) or “modified” the temporary-
restriction order (and thus required the Board to file a Revision-to-
Action Report).9 I conclude that the Board’s final order did not
“overturn” the temporary-restriction order “on appeal.” Instead, like a
court’s final judgment’s effect on a temporary-injunction order, the
Board’s final order “superseded” the temporary-restriction order,
“reinstated” Van Boven’s license, and thereby “modified” the temporary
restriction by ending it. As a result, the Guidebook required the Board
to file a Revision-to-Action Report with the Data Bank.
9 The Board argues that a Void Report would have been improper here
because only a court can “overturn” a Board order “on appeal.” Although the
Board concedes that the Guidebook does not say that a Void Report is required
when a previous order is “overturned [by a court] on appeal,” it notes that the
examples the Guidebook provides involve a court overturning an agency’s
order. See, e.g., 2015 GUIDEBOOK at E-8 (providing example of when a board
order revoking a license is “overturned by a state court”), E-72 (“If a court
overturns a board’s order, the board should void the Initial Report.”). But as
Van Boven insists, the Guidebook provides these examples merely as non-
exclusive examples—they do not independently alter or limit the meaning of
the phrase “overturned on appeal.” Like the Court, see ante at ___, I read the
Guidebook to require a Void Report whenever a prior order is “overturned on
appeal,” regardless of whether that appeal occurs in a court, before the Board,
or to an administrative law judge. Cf. CODE LISTS at 52 (noting only “formal[]”
appeals require Notice of Appeal Reports).
11
1. No “appeal”
Despite Van Boven’s insistence otherwise, he did not appeal the
Board’s temporary-restriction order. He argues that he “appealed” the
order by continually denying the allegations asserted against him and
refusing to agree to resolve the matter through an informal settlement
conference, thereby forcing the Board to file a formal complaint in the
State Office of Administrative Hearings. I disagree. After the Board
panel entered the temporary-restriction order, the Act required the
Board to pursue the two-step disciplinary proceeding; it did not provide
the disciplinary proceeding as a means for Van Boven to “appeal” the
results of the ancillary temporary-restriction proceeding. See TEX. OCC.
CODE § 164.059(e)–(f). To “appeal” a Board order, the physician must file
suit in the Travis County district court. Id. § 164.009. The Board’s final
order could not have overturned the temporary-restriction order “on
appeal” because Van Boven never appealed that order.
2. Not “overturned”
Nor did the Board’s final order “overturn” the temporary-
restriction order. To enter the temporary order, the Board’s disciplinary
panel had to find, based on evidence, that Van Boven’s continued,
unrestricted practice of medicine at that time (pending an investigation
and completion of the two-step disciplinary proceeding) would
“constitute a continuing threat to the public welfare.” Id. § 164.059(a)–
(b); see also 22 TEX. ADMIN. CODE §§ 187.55–.62. By contrast, the issue
in the ensuing contested case before the administrative law judge was
whether Van Boven should be sanctioned for engaging in
“unprofessional or dishonorable conduct that is likely to deceive or
12
defraud the public.” TEX. OCC. CODE §§ 164.052(a)(5). The
administrative law judge was not called upon to decide, nor did he
decide, whether the three-member Board panel should (or should not)
have entered the temporary-restriction order or whether Van Boven’s
continued practice at that time (pending investigation and resolution of
the formal complaint) would constitute a “threat to public welfare.”
Indeed, unlike proceedings against certain other licensed
professionals,10 the Act does not grant the State Office of Administrative
Hearings any authority to review, reverse, or affirm a Board panel’s
temporary-suspension-or-restriction order against a physician or its
finding that the physician’s practice would constitute a “continuing
threat to the public welfare.” A temporary-restriction order based on the
three-member panel’s finding remains in effect only until the Board
enters a subsequent or final order, 22 TEX. ADMIN. CODE § 187.61(b), but
the final order does not reverse or overturn the temporary order.
Van Boven contends that the final order “overturned” the
temporary-restriction order because the hearing before the
administrative law judge was a “trial de novo on all facts and law related
to the allegations considered in the temporary order.” But in fact, the
hearing before the administrative law judge involved evidence of facts
that differed from the facts presented to the Board’s disciplinary panel
that issued the temporary-restriction order, including—for example—
evidence regarding allegations of a third patient who provided no
10See, e.g., TEX. OCC. CODE §§ 263.004(c) (authorizing State Office of
Administrative Hearings to conduct hearing to review Board of Dental
Examiners temporary-suspension order against dentist), 301.455(c) (same for
Board of Nursing’s temporary-suspension-or-restriction order against nurse).
13
evidence to the disciplinary panel that entered the temporary-restriction
order. And more importantly, any evidence presented to the
administrative law judge was used to determine whether Van Boven
could or should be sanctioned for previously engaging in unprofessional
or dishonorable conduct, not to determine whether his license should be
temporarily restricted to eliminate or reduce a future threat to the public
welfare. The administrative law judge made no determination, and the
final order did not conclude, that the temporary restriction “should
never have been taken.” CODE LISTS at 53 (defining when to file a Void
Report).
3. “Superseded”
Nevertheless, Van Boven argues that the Board was required to
file a Void Report because its final order “superseded,” and therefore
“vacated” and “voided” the temporary-restriction order. As mentioned,
the Board disciplinary panel’s temporary-restriction order provided that
it would “remain in effect until it is superseded by a subsequent Order
of the Board,” the Board’s final order provided that it “supersedes the
Order of Temporary Restriction,” and the Board’s Revision-to-Action
Report to the Data Bank explained that the final order “supersedes all
previous orders.” The Board’s final order based on an administrative law
judge’s factual findings and legal conclusions following a disciplinary
proceeding does not make a prior temporary-suspension-or-restriction
order “void” in the sense that it becomes an “absolute nullity” that was
“[n]ull from the beginning.” Void, BLACK’S LAW DICTIONARY (11th ed.
2019). Instead, it “supersedes” the prior order by “repealing” and “taking
the place of” it. Supersede, BLACK’S LAW DICTIONARY (11th ed. 2019).
14
In this sense, the three-member panel’s temporary-restriction
order and the full Board’s final order are analogous to a temporary-
injunction order and a final judgment in a court case. When a party
seeks a temporary injunction, it must prove “(1) a cause of action against
the defendant; (2) a probable right to the relief sought; and (3) a
probable, imminent, and irreparable injury in the interim.” Butnaru v.
Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (citing Walling v.
Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993); Sun Oil Co. v. Whitaker, 424
S.W.2d 216, 218 (Tex. 1968)). When a court enters a temporary-
injunction order and then later enters a final judgment from which a
party appeals, the appellate court does not evaluate the propriety of the
temporary-injunction order. See Isuani v. Manske-Sheffield Radiology
Grp., P.A., 802 S.W.2d 235, 236 (Tex. 1991) (per curiam). In fact, the
court cannot review the propriety of the temporary injunction because
those questions are moot, both procedurally and substantively. See Elec.
Reliability Council of Tex., Inc. v. Panda Power Generation
Infrastructure Fund, LLC, 619 S.W.3d 628, 635 (Tex. 2021) (“Once the
trial court entered a permanent injunction . . . , the issue of whether the
trial court erred by granting a temporary injunction . . . no longer
presented a live controversy that was relevant to the resolution of the
parties’ then-current dispute.”).
In the same way, when the Medical Board enters a final order
(regardless of whether that order imposes a disciplinary sanction based
on the administrative law judge’s finding of sanctionable conduct or, as
here, imposes no sanction and dismisses the complaint based on the
administrative law judge’s failure to find sanctionable conduct), a
15
temporary-restriction order no longer has any effect at all. See 22 TEX.
ADMIN. CODE § 187.61(b). But the final order does not overturn the
temporary order or render it void from its inception.
The three-member panel was required to decide whether Van
Boven’s continued practice of medicine pending completion of the
investigation and the two-step disciplinary process “would” in the future
constitute a “threat” to the public, not whether in hindsight it actually
“did” cause “harm” to the public. TEX. OCC. CODE § 164.059. The panel
made a prediction, based on the evidence before it, that the temporary
restriction was necessary to protect the public welfare. There is little
difference between that determination and a trial court’s determination
that a temporary injunction is necessary to enforce a party’s “probable
right” and prevent a “probable injury.” State v. Sw. Bell Tel. Co., 526
S.W.2d 526, 528 (Tex. 1975) (emphases added). And there is little
difference between the administrative law judge reviewing the evidence
in this case and determining that the Board has not proven its
allegations and a trial court ultimately denying final relief in a case in
which it previously entered a temporary injunction. In both situations,
the final order does not void or even review the merits of the order
granting temporary relief. See Int’l Ass’n of Machinists, Local Union No.
1488 v. Federated Ass’n of Accessory Workers, 130 S.W.2d 282, 283 (Tex.
Comm’n App. 1939) (“[T]he effect of the order of the trial court
dismissing the main case was to terminate such injunction. . . . No
temporary injunction exists, and it follows that the question of whether
it was rightfully issued is but an abstract question of law with which
this court will not deal.”). As the Final Order here states: “This Order
16
supersedes the Order of Temporary Restriction issued on February 29,
2016 and Respondent’s license to practice medicine in Texas is no longer
restricted.” [Emphasis added.] Not, as the Court reads it, “should not
have been restricted.”
When in this case the administrative law judge issued his
Proposal for Decision, and when the Board accepted and incorporated
that proposal into its Final Order, they did not consider the merits of
the temporary-restriction order. Unlike the three-member Board panel
that entered the temporary-restriction order, they did not consider
whether Van Boven’s “continuation in practice” at that time (pending
the investigation and the two-step disciplinary proceeding) would
“constitute a continuing threat to the public welfare.” T EX. OCC. CODE
§ 164.059(a)–(b); 22 TEX. ADMIN. CODE §§ 187.55–.62. Instead, they were
concerned only with whether the Board met its burden to prove, by a
preponderance of the evidence, that Van Boven should be sanctioned for
committing “unprofessional or dishonorable conduct that is likely to
deceive or defraud the public.” See TEX. OCC. CODE § 164.052(a)(5).
The Court hangs its contrary conclusion on one hook: that much
of the same evidence that was presented at the temporary-restriction
hearing (specifically, “the allegations made by Patients A and B”) was
also presented at the formal hearing before the administrative law
judge. But the evidence was submitted at the temporary-restriction
hearing to prove an entirely different claim—that Van Boven’s
continued, unrestricted practice of medicine pending completion of the
investigation and the two-step proceeding would “constitute a
17
continuing threat to the public welfare.” TEX. OCC. CODE § 164.059(b);
22 TEX. ADMIN. CODE §§ 187.55–.62.
The Court ends its opinion by asserting that “the nature of the
Final Order under Texas law was to determine that no basis for the
Temporary Order had been proved.” Ante at ___ (emphasis added).11 But
the final order made no determination at all regarding the propriety of
the temporary-restriction order or whether that sanction had “been
proved.” Simply because the Board ultimately failed to prove the
allegations against Van Boven does not mean that the temporary-
restriction order “never should have been” issued. 12
As the Court itself ultimately concedes, “the Temporary Order
was not under review in the SOAH proceedings,” and the administrative
law judge “had no authority to overturn or vacate it.” Ante at __. Yet—
struggling to find a way to construe the laws that govern Board
proceedings to render a result it considers more just and fair—the Court
concludes that although “the Temporary Order was not overturned or
vacated,” the “Final Order’s effect was the same.” Ante at __ (emphasis
11 Similarly, the Court suggests “that Board staff failed to prove any of
their allegations.” Ante at __. But the administrative law judge never found
that the Board failed to prove the basis for the temporary restriction on Van
Boven’s license. And the Court claims that the administrative law judge made
“findings or conclusions regarding the Temporary Order.” Ante at __. Yet,
despite the fact that the administrative law judge’s fifty-nine findings and five
conclusions are enumerated in eight pages, the Court does not and cannot point
to a single finding or conclusion that addresses the propriety of the temporary-
restriction order.
12 Even an expungement is not a reason to submit a Void Report.
GUIDEBOOK at E-70 (“An expungement removes the practitioner’s public
record but does not vacate or change the action. . . . An expunged record is not
a reason to void a report.”).
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added). But under the law, that’s simply not correct. The fact that the
patients’ testimony was insufficient to support sanctions against Van
Boven based on a finding that he had committed “unprofessional or
dishonorable conduct that is likely to deceive or defraud the public,” T EX.
OCC. CODE § 164.052(a)(5), does not (effectively or otherwise) mean that
their testimony was insufficient to support a temporary restriction
based on a finding that, at that time, his unrestricted practice of
medicine pending an investigation and final determination would
“constitute a continuing threat to the public welfare,” id. § 164.059(b).
The Board’s ultimate determination that Van Boven was not “subject to
sanction” did not—either expressly or by its “effect”—overturn or vacate
the three-member panel’s earlier determination that his license should
be temporarily restricted until the Board could make its ultimate
determination.
The Data Bank’s Guidebook specifically confirms this result,
explaining that when a state licensing agency orders a “summary or
emergency suspension of a license . . . pending completion of [the
agency’s] investigation,” the agency “must submit a Revision-to-Action
Report” once “a final action is taken that supersedes or modifies the
initial action.” 2015 GUIDEBOOK at E-61 (emphasis added). And the
Guidebook provides additional examples that confirm this result as well.
When, for example, a licensing agency reports that it has suspended a
license in an order that does not provide for automatic reinstatement
“after a specified period,” the agency “must submit a Revision-to-Action
report when the license is reinstated.” Id. at E-15; see also 45 C.F.R.
§ 60.6(b) (explaining that “revisions” include “reinstatement of a
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license”); 2015 GUIDEBOOK at E-8 (stating that a Revision-to-Action
Report should be filed when the final order reduces the length of the
previously reported adverse action or reinstates the physician’s license,
or when “the original suspension or probationary period has ended”), E-
58 (providing that licensing authorities “also must report any revisions
to a previously reported licensing or certification action, such as a
reinstatement of a suspended license”). Because the Board’s final order
in this case replaced the temporary-restriction order, modified the
previously indefinite temporary restriction on Van Boven’s license, and
reinstated his license without restrictions, but did not render the prior
order void from its inception, the Guidebook required the Board to file a
Revision-to-Action Report.
Van Boven contends, however, that these Guidebook examples
refer only to situations in which the licensing agency, having initially
suspended or restricted a license for an indefinite period, later enters an
order that imposes an adverse action on the licensee. According to Van
Boven, when an agency that initially suspends or restricts a license later
takes a final adverse action against the licensee, the Guidebook requires
the agency to file a Revision-to-Action Report; but when (as here) the
agency later takes a final action that is not adverse, the Guidebook
requires the agency to file a Void Report. But the Guidebook’s examples
refer only to a “final action,” never referring to whether the final action
is “adverse.” See 2015 GUIDEBOOK at E-61 (requiring agency to submit a
Revision-to-Action Report when “a final action is taken that supersedes
or modifies the initial action”). And the regulations and Guidebook
specifically include situations in which the agency does not take an
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adverse final action, but instead “reinstates” the previously suspended
license or when the suspension period “has ended,” neither of which
constitutes an “adverse” action. See 45 C.F.R. § 60.6(b); 2015 GUIDEBOOK
at E-8, E-15, E-58; CODE LISTS at 7 (including “License Restored or
Reinstated” in list of Revision-to-Action codes).
4. “Modified”
Van Boven argues that the Guidebook did not require a Revision-
to-Action Report in his case because the Board’s final order could not
have “modified” the temporary restriction. Specifically, Van Boven
contends that because the temporary-restriction order “ceased to have
any legal effect” once the Board entered the final order, the final order
“supplanted” the temporary-restriction order but could not “modify” it
because there was no longer any temporary-restriction order to modify.
Although Van Boven is correct that the temporary order lost all
effect when the Board entered the final order, the Guidebook requires a
Revision-to-Action Report when a final order modifies a prior action, not
a prior order. See 2015 GUIDEBOOK at E-8 (“A Revision-to-Action Report
is a report of an action that modifies an adverse action previously
reported to the [Data Bank].” (emphasis added)), E-15 (“A Revision-to-
Action Report is used to submit an action that relates to and/or modifies
an adverse action previously reported to the [Data Bank].” (emphasis
added)), E-61 (“Once a final action is taken that supersedes or modifies
the initial action, the State licensing or certification authority must
submit a Revision-to-Action Report.” (emphasis added)), E-67 (requiring
Revision-to-Action Report when “a judicial appeal resulted in the court
modifying the discipline” (emphasis added)). Although the final order
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rendered the temporary order ineffective, it also modified the adverse
action the temporary order imposed by ending the adverse action
altogether. See id. at E-9.
Because the Board’s final order in this case replaced the
temporary-restriction order, modified the previously indefinite
temporary restriction on Van Boven’s license, and reinstated his license
without restrictions, but did not render the prior order void from its
inception, the Board was required to file a Revision-to-Action Report.
II.
Conclusion
I do not begrudge the Court’s desire to rectify what Van Boven
argues is an unfair, unjust, and unduly prejudicial result. But this
Court’s task is simply to determine whether the Board defendants acted
ultra vires by filing a Revision-to-Action Report, rather than a Void
Report, after the Board entered its Final Order in Van Boven’s case. For
the reasons I have explained, I conclude they did not. I agree with the
court of appeals’ conclusion that Van Boven failed to plead and establish
that the Board acted ultra vires by failing to file a Void Report. I would
affirm the court of appeals’ judgment dismissing Van Boven’s claims as
barred by sovereign immunity. Because the Court does not, I must
dissent.
Jeffrey S. Boyd
Justice
OPINION DELIVERED: June 3, 2022
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