v.
Texas Medical Board and Mari Robinson, JD, in Her Official Capacity
NO. 03-14-00644-CV
Jose A. Perez, Appellant
v.
Texas Medical Board and Mari Robinson, JD, in her Official Capacity, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. D-1-GN-14-001172, HONORABLE DARLENE BYRNE, JUDGE PRESIDING
MEMORANDUM OPINION
Jose A. Perez has appealed a final judgment dismissing, for want of subject-matter
jurisdiction, a suit he had filed against the Texas Medical Board (TMB) and its executive director, in her official capacity (collectively, appellees). We will affirm the judgment.
Perez has represented himself throughout these proceedings, and the precise nature
of his contentions are sometimes difficult to decipher.[1] However, the primary substantive thrust of his lawsuit—whose live pleadings were styled “Petition to Quash an Administrative Order and Inverse Condemnation and Takings Claim”—was to seek judicial review of a final administrative order, in a contested case, that had revoked Perez’s license as a physician assistant, a remedy that would potentially be available to him under Subchapter G of the Administrative Procedure Act (notwithstanding the contents of the order itself) that the TMB, not the TPAB, was the correct agency defendant. The district court rejected this argument, and Perez maintains that this was error.
[*2]His contentions are without merit.
Although the TPAB’s enabling statute terms it “an advisory board to the [TMB]”6 and gives TMB oversight and managerial duties that include the power to approve or disapprove rules
that TPAB proposes for adoption,7 these powers or duties do not extend to the licensing and discipline of individual physician assistants—instead, such authority is vested exclusively in TPAB.[8]
TMB is not empowered, for example, to entertain or review appeals of TPAB orders revoking a physician assistant’s license or imposing other discipline—rather, a licensee’s final administrative remedy is a motion for rehearing to the TPAB.[9] The revocation order here is consistent with this statutory structure—it is in the name of TPAB, is signed by a TPAB board member, and reflects that the agency is exercising its delegated statutory powers to discipline licensees. In short, TPAB, not
TMB, was the relevant state agency that Perez had to sue in order to invoke the district court’s subject-matter jurisdiction through APA Subchapter G. He failed to do so, nor even attempted to
the decision that is the subject of complaint is final and appealable.”); Texas Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 197 (Tex. 2004) (concluding that Subchapter G, by providing right of judicial review of agency order in a “contested case,” waives agency’s sovereign immunity to extent of permitting that claim, as “the Legislature necessarily understood that state agencies would be sued in court . . . , that contested-case decisions of those agencies would be judicially reviewed under the standards set forth in section 2001.174, and that the challenged administrative decisions would be either affirmed, reversed, or remanded as provided by section 2001.174”).
[*3]do so when made aware of the defect. The district court did not err in dismissing his claim seeking judicial review.
To the extent Perez is purporting to assert additional or independent ultra vires or constitutional claims, we conclude that none could invoke the district court’s subject-matter jurisdiction.[10] Similarly, any other complaints Perez advances on appeal (leaving aside whether they
were preserved below or were sufficiently briefed here) would not be material to jurisdiction, and we need not belabor them further.[11]
We affirm the district court’s judgment.
__________________________________________ Bob Pemberton, Justice Before Justices Puryear, Pemberton, and Bourland Affirmed Filed: December 10, 2015
[*4]