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Lindsey v. Texas State Board of Veterinary Medical Examiners

Court of Appeals of Texas, Third District, Austin

April 27, 2018

Kristen Lindsey, D.V.M., Appellant
v.
Texas State Board of Veterinary Medical Examiners, Appellee Kristen E. Lindsey, D.V.M., Appellant
v.
Texas State Board of Veterinary Medical Examiners, Appellee

          FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT NO. D-1-GN-16-001508, HONORABLE KARIN CRUMP, JUDGE PRESIDING

          FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT NO. D-1-GN-16-005514, HONORABLE KARIN CRUMP, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Field and Bourland

          MEMORANDUM OPINION

          Cindy Olson Bourland, Justice

         These two appeals arise from the disciplinary proceeding filed against appellant Kristen Lindsey, D.V.M., by appellee the Texas State Board of Veterinary Medical Examiners. In cause number 03-16-00549-CV, Lindsey appeals from the trial court's judgment denying her motion for summary judgment, granting the motion for summary judgment filed by the Board, and dismissing her suit challenging the Board's authority to bring its disciplinary action. In cause number 03-17-00513-CV, she appeals from the trial court's judgment affirming the Board's final decision in the disciplinary proceeding. Because the facts underlying both appeals are the same, we are considering the appeals together. As explained below, we will affirm both of the trial court's judgments.

         Factual and Procedural Background[1]

         In 2015, Lindsey, a licensed veterinarian, killed a cat on her property by shooting it through the head with a bow and arrow. Although Lindsey believed the cat to be a feral cat she had earlier seen fighting with her cat and defecating in her horse feeders, the evidence indicated that the cat was instead Tiger, a neighbor's pet, and not a stray or feral cat. Lindsey posted on Facebook a photo of herself holding up the dead cat by the arrow, along with a caption stating, "My first bow kill [cat emoticon] lol. The only good feral tomcat is one with an arrow through it's [sic] head! Vet of the year award ... gladly accepted [crying/laughing emoticon]." According to the Board, the photo was "shared on numerous social media websites, and the story was reported on several news outlets, " resulting in the Board receiving more than 700 formal complaints and more than 27, 000 emails about the incident.

         In 2016, the Board initiated disciplinary proceedings against Lindsey before the State Office of Administrative Hearings (SOAH), seeking to revoke her license and alleging that she had violated Sections 801.402(4) and (6) of the Veterinary Licensing Act and Administrative Rule 573.4. See Tex. Occ. Code § 801.402(4), (6); 22 Tex. Admin Code § 573.4 (2018) (Tex. Bd. of Veterinary Med. Exam'rs, Adherence to the Law). While that proceeding was pending, Lindsey filed a petition for declaratory judgment and equitable relief in the trial court, asserting that the Board lacked the authority to discipline her because it only had authority to do so in cases involving either the practice of veterinary medicine or conduct amounting to cruelty to animals that results in a conviction under the penal code. See Tex. Penal Code § 42.092 (animal cruelty). Because she had not been convicted of animal cruelty and, in fact, a grand jury had declined to indict her for such a charge, [2] she contended the Board was without authority to discipline her for killing the cat. She further asserted that the rules under which the Board was seeking to discipline her were invalid because they were an unlawful expansion of the Board's powers to regulate the practice of veterinary medicine. Lindsey and the Board filed competing motions for summary judgment, and the trial court granted judgment in favor of the Board, dismissing Lindsey's suit for declaratory relief. Lindsey appealed that judgment in cause number 03-16-00549-CV.

         Meanwhile, the administrative-licensing action was proceeding, with SOAH's administrative law judges (ALJs) issuing a proposal for decision and findings of fact and conclusions of law. The Board adopted the proposal, including the findings and conclusions with one change not relevant to this cause, and issued a final order suspending Lindsey's license for five years, with four of those years probated. After the Board denied her motion for rehearing, Lindsey filed a petition for judicial review in the trial court. She asserted that the Board erred in adopting several of the findings and conclusions and argued again that the Board lacked the authority to discipline her under the circumstances presented. The trial court held a hearing and signed a final judgment stating that, having considered the pleadings and the administrative record, it was affirming the Board's final order. Lindsey appealed that judgment in cause number 03-17-00513-CV.

         Standard of Review

         Lindsey argues in both appeals that the rules relied upon by the Board to proceed against her license are invalid because they do not comport with their authorizing statute, exceed the Board's statutory authority, exceed and unlawfully expand the Board's authority, and deprive her of her constitutional protections. She further argues in her second appeal that the trial court erred in affirming the Board's order because the record contains insufficient evidence to support several of the Board's findings of fact and because the Board erroneously reached certain conclusions of law.

         A state agency has "only those powers expressly conferred upon it by the Legislature, " but "when the Legislature expressly confers a power on an agency, it also impliedly intends that the agency have whatever powers are reasonably necessary to fulfill its express functions or duties." Public Util. Comm'n v. City Public Serv. Bd., 53 S.W.3d 310, 316 (Tex. 2001). However, an agency may not "exercise what is effectively a new power, or a power contradictory to the statute, on the theory that such a power is expedient for administrative purposes." Id. "An agency's construction of a statute that it is charged with enforcing is entitled 'to serious consideration by reviewing courts, so long as that construction is reasonable and does not contradict the plain language of the statute.'" Texas Orthopaedic Ass'n v. Texas State Bd. of Podiatric Med. Exam'rs, 254 S.W.3d 714, 719 (Tex. App.-Austin 2008, pet. denied) (quoting Employees Ret. Sys. v. Jones, 58 S.W.3d 148, 151 (Tex. App.-Austin 2001, no pet.)).

          When a party challenges the validity of an agency's rule, we presume that the rule is valid, and the challenging party bears the burden of demonstrating the rule's invalidity. Harlingen Family Dentistry, P.C. v. Texas Health & Human Servs. Comm'n, 452 S.W.3d 479, 481 (Tex. App.-Austin 2014, pet. dism'd). To show a rule is facially invalid, the challenger must show that the rule contravenes specific statutory language; is counter to the statute's general objectives; or imposes additional burdens, conditions, or restrictions in excess of or inconsistent with the relevant statutes. Id. In determining whether an agency's rule exceeds the agency's statutory authority, we look to whether the rule complies with the general objectives of the applicable enabling statute. Jones, 58 S.W.3d at 151; see Texas Orthopaedic Ass'n, 254 S.W.3d at 719 ("we must ascertain whether the rule is contrary to the relevant governing statutes or whether the rule is in harmony with the general objectives of the statutes involved"). "That determination requires us to look not only at a particular provision, but to all applicable provisions, " and in construing the statute, we are to determine and give effect to the legislature's intent. Jones, 58 S.W.3d at 151 (quoting National Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000)); see Harlingen Family Dentistry, 452 S.W.3d at 481 ("We look to the entire act in determining the legislature's intent with respect to a specific provision."). If a rule lacks supporting statutory authority, it is void. Texas Orthopaedic Ass'n, 254 S.W.3d at 719. The doctrine of expressio unius est exclusio alterius, which provides that the express mention or enumeration of one person, thing, consequence or class is equivalent to an express exclusion of all others, is not an absolute rule but can be helpful in determining legislative intent. Harlingen Family Dentistry, 452 S.W.3d at 482 (quoting Johnson v. Second Injury Fund, 688 S.W.2d 107, 108-09 (Tex. 1985)).

         Under the Administrative Procedures Act, we may only reverse an agency's decision if it prejudices the appellant's substantial rights because "the administrative findings, inferences, conclusions, or decisions (1) violate a constitutional or statutory provision, (2) exceed the agency's statutory authority, (3) were made through unlawful procedure, (4) are affected by other error of law, or (5) are arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Scally v. Texas State Bd. of Med. Exam'rs, 351 S.W.3d 434, 440 (Tex. App.-Austin 2011, pet. denied). In reviewing the agency's final order, we apply the substantial-evidence standard as set out in the Act.[3] Id.; see Tex. Gov't Code § 2001.174. Our role is to ensure that the agency's findings, inferences, conclusions, and decisions are "reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole." Scally, 351 S.W.3d at 440-41. We apply a "deferential standard, " presuming that the agency's order is supported by substantial evidence, and the party challenging the order must prove that it is not: "The burden is a heavy one-even a showing that the evidence preponderates against the agency's decision will not be enough to overcome it, if there is some reasonable basis in the record for the action taken by the agency." Id. at 441.

         "Substantial evidence does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion of fact." Id. (cleaned up). We will uphold an agency's determination "if the evidence as a whole is such that reasonable minds could have reached the conclusion that the agency must have reached in order to justify its action, " we will defer to the agency's judgments on the weight of the evidence on questions committed to the agency's discretion, and the "ALJ, as factfinder, determines the credibility of witnesses and the weight of their testimony." Id. "We may not set aside an agency decision merely because testimony was conflicting or disputed or because it did not compel the agency's decision"-if the evidence can support either affirmative or negative findings on a specific issue, we will uphold the agency's decision. Id. "Our ultimate concern is the reasonableness of the agency's order, not its correctness." Id.

         Challenges to Underlying Disciplinary Proceeding

         We first turn to Lindsey's arguments, raised in both appeals, related to the Board's authority to seek to revoke her license. She argues that the Board's interpretation of its enabling statute and the rules it relied upon in this disciplinary proceeding are invalid because they do not comport with the applicable authorizing statute, they exceed the Board's statutory authority, they unlawfully expand the Board's authority, and they deprive Lindsey of her constitutional protections.

         The Board, which consists of nine members appointed by the governor, is responsible for adopting rules that, among other things, will protect the public and will establish and maintain a "high standard of integrity, skills, and practice" among licensed veterinarians. Tex. Occ. Code §§ 801.002, .151(b), (c)(1). The Board is also authorized to "adopt rules as necessary to administer" Chapter 801 of the Occupations Code, which governs the licensing of veterinarians. Id. § 801.151(a); see generally id. §§ 801.001-.557 ("Veterinarians"). Section 801.402 provides in relevant part that a "person is subject to denial of a license or to disciplinary action" if she "engages in dishonest or illegal practices in, or connected with, the practice of veterinary medicine or the practice of equine dentistry" or "engages in practices or conduct that violates the board's rules of professional conduct." Id. § 801.402(4), (6). Thus, under the statutory scheme set out by the legislature, the Board has reasonably broad authority to adopt rules establishing standards for conduct of veterinarians.

         Lindsey argues that the Board has limited jurisdiction and cannot discipline a veterinarian for conduct that does not involve the practice of veterinary medicine or that does not result in a conviction for cruelty to animals. She contends that Sections 53.021(a), 53.022, 53.023, [4]801.002, and 801.402(1) of the Occupations Code must be construed together as limiting the Board's disciplinary authority to conduct by licensees that is "within the statutory definition of the 'practice of veterinary medicine, '" and that to the extent the Board's rules connect the crime of animal cruelty to the practice of veterinary medicine, such conduct must result in a conviction to be the basis for discipline. She argues that the Board has violated its enabling statutes by expanding its authority to discipline veterinarians to include conduct that does not result in a conviction.

         Initially, we will address Lindsey's arguments related to Section 801.402, which enumerates twenty-one kinds of conduct that may make a veterinarian subject to disciplinary action, including Subsections (5) and (18), which specify that a veterinarian is subject to discipline if convicted of cruelty to animals, attack on an assistance animal, or any felony. See id. § 801.402. As noted earlier, the Board sought to discipline Lindsey under Subsections (4) and (6), which provide more generally that a veterinarian may be subject to discipline if she engages in illegal or dishonest conduct in or connected with her professional practice or if she violates the Board's rules of professional conduct. Id. § 801.402(4), (6). Lindsey, however, contends that because Subsections (5) and (18) are specific about certain conduct that results in a conviction, those specific provisions "preempt any general provisions that provide otherwise, " essentially advocating for the application of "the doctrine of expressio unius est exclusio alterius, the maxim that the expression of one implies the exclusion of others." Mid-Century Ins. Co. v. Kidd, 997 S.W.2d 265, 273 (Tex. 1999). She contends that the inclusion of Subsections (5) and (18) show a legislative intent that the determination of a licensee's guilt when accused of animal cruelty or a ...


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