January 22, 2019
Petition for Review from the Court of Appeals for the Third
District of Texas
Justice Lehrmann delivered the opinion of the Court, in which
Chief Justice Hecht, Justice Green, Justice Guzman, and
Justice Devine joined, and in which Justice Busby joined
except as to footnote 9.
H. LEHRMANN, JUSTICE
administrative appeal, we review the Texas Medical
Board's order imposing disciplinary sanctions under the
Medical Practice Act against a physician for violating a
state law that requires medical certifications for death
certificates to be completed electronically. On the
physician's petition for judicial review, the trial court
affirmed the Board's order, and the court of appeals
likewise affirmed. The physician argues that the Board lacked
jurisdiction over the proceedings, that the Medical Practice
Act does not authorize disciplinary action for the conduct at
issue, that compliance with the electronic certification
requirement was impossible, that the
Board's sanction was so severe as to be an abuse of
discretion, and that the physician is entitled to recover
attorney's fees. We agree with the physician that
disciplinary action was not authorized and thus reverse the
court of appeals' judgment in part.
Death Certificates: Statutory Framework
Texas Health and Safety Code places the responsibility of
filing a death certificate on the "person in charge of
interment or in charge of removal of a body from a
registration district for disposition." Tex. Health
& Safety Code § 193.002. With certain inapplicable
exceptions, that person must "obtain the required
medical certification from the decedent's attending
physician . . . if the death occurred under the care of the
[physician] in connection with the treatment of the condition
or disease process that contributed to the death."
Id. § 193.005(a). Generally, the Act
requires that the medical certification be completed no later
than five days after the physician receives the death
certificate, id. § 193.005(b),  and that the
certificate be filed with the appropriate local registrar no
later than ten days after the death occurs, id.
2007, the Legislature amended chapter 193, adding a provision
that requires the person completing the medical certification
to "submit the information and attest to its validity
using an electronic process approved by the state
registrar." Act of May 17, 2007, 80th Leg., R.S., ch.
302, § 2, 2007 Tex. Gen. Laws 577, 577 (codified at Tex.
Health & Safety Code § 193.005(h)). During the time
period at issue in this case, the approved electronic process
for preparing and recording death certificates was the Texas
Electronic Death Registration system (known as TEDR),
administered by the Texas Department of State Health
Services' Vital Statistics Unit.
the TEDR system, a physician would submit an application to
the Department and receive a password from the registrar.
When the person required to file a death certificate (often a
funeral director) prepared his portion of the certificate
electronically and entered the medical certifier's
information, the system automatically notified the certifier
via email that certification was necessary. The certifying
physician would then log into the system to complete the
certification. If the certifier was not registered to use the
system, the certificate could be "dropped to paper"
by the funeral director, meaning it was removed from the
system, and sent to the physician for completion on paper. In
either event, the completed certificate was filed with the
Factual and Procedural Background
patient of Dr. Ruben Aleman's, died on July 16, 2011. The
funeral director generated and signed J.S.'s death
certificate electronically. However, Dr. Aleman was not
registered with the TEDR system, so the certificate was
dropped to paper and sent to him for manual certification.
Dr. Aleman received and hand-certified the paper certificate
on July 29. The certificate became "official" on
August 8, when it was certified by the local registrar. On
August 16, Dr. Aleman submitted an application to register
with the TEDR system, and his application was approved and
took effect three days later. After registering, Dr. Aleman
attempted to certify J.S.'s death certificate
electronically. However, the system would not allow him to do
so once the certificate became official.
two years later, on May 3, 2013, the Texas Medical Board
filed a complaint with the State Office of Administrative
Hearings (SOAH) seeking disciplinary action against Dr.
Aleman. The complaint, signed and sworn to by
a Board staff attorney, alleged that "[r]ather than
certifying the patient's death certificate through TEDR
as required, [Dr. Aleman] required the mortuary to provide
him with a paper death certificate," which he
"ultimately signed." The complaint alleged that, in
doing so, Dr. Aleman violated Health and Safety Code sections
193.002(4) (requiring death certificates to be filed
electronically) and 193.005(h) (requiring death certificates
to be medically certified electronically). The complaint
further alleged that this conduct violated the Medical
Practice Act, which authorizes disciplinary action against a
licensed physician for "commit[ting] unprofessional or
dishonorable conduct that is likely to deceive or defraud the
public," including "an act that violates any state
or federal law if the act is connected with the
physician's practice of medicine." Tex. Occ. Code
§§ 164.052(a)(5), .053(a)(1). Finally, the
complaint alleged the case involved aggravating
factors-increased potential for harm to the public and an
intentional, premeditated, knowing, or grossly negligent
act-that should be taken into consideration in determining
Aleman filed a motion to dismiss and plea to the
jurisdiction, arguing that the Board lacked subject matter
jurisdiction because the complaint did not comply with the
Medical Practice Act's requirements. See id.
§ 164.005. The administrative law judge (ALJ) denied the
motion. The ALJ also denied both parties' motions for
summary disposition as well as Dr. Aleman's motion for
sanctions. After a hearing, the ALJ issued a Proposal for
Decision containing findings of fact and conclusions of law.
The ALJ found that Dr. Aleman did not violate Health and
Safety Code section 193.002(4), which applies only to persons
required to file death certificates. However, the
ALJ concluded that Dr. Aleman did violate section 193.005(h)
by failing to complete the medical certification
electronically and that his noncompliance "did not
result from circumstances beyond his control." In turn,
the ALJ found that, because the violation was related to Dr.
Aleman's practice of medicine, he "by
definition" violated the Medical Practice Act. The ALJ
further found that no aggravating factors were present in the
case. Finally, the ALJ concluded that Dr. Aleman was not
entitled to, nor was SOAH authorized to award, attorney's
Board adopted the ALJ's findings and imposed sanctions.
Specifically, the Board ordered Dr. Aleman to: take and pass
the Board's Jurisprudence Examination within one year (in
no more than three attempts); pay a $3, 000 administrative
penalty; complete sixteen hours of continuing medical
education within one year, including eight hours of ethics
and eight hours of risk management; and give a copy of the
Board's order to "all hospitals, nursing homes,
treatment facilities, and other health care entities"
where Dr. Aleman has privileges or otherwise practices.
Aleman's petition for judicial review of the Board's
order, the trial court affirmed the order in all relevant
respects, and the court of appeals affirmed the trial
court's judgment. 565 S.W.3d 26 (Tex. App.-Austin 2017).
The court of appeals held in pertinent part: (1) the
Board's complaint complied with all statutory
requirements, id. at 31; (2) substantial evidence
supported the Board's conclusion that Dr. Aleman violated
the Medical Practice Act, id. at 35; (3) no legal
impossibility excused Dr. Aleman's failure to comply
because "the impediment to Aleman's submitting the
medical certification electronically was of his own
making-his failure to register with the TEDR until August
2011," id.; (4) the discipline imposed by the
Board was neither in excess of its statutory authority nor
arbitrary or capricious, id. at 36; and (5) the
Board did not abuse its discretion in declining to award Dr.
Aleman attorney's fees as sanctions for frivolous
pleadings, id. at 37. We granted Dr. Aleman's
petition for review.
Sufficiency of Complaint
Occupations Code section 164.005 prescribes the procedure for
instituting formal administrative proceedings against a
physician. Dr. Aleman asserts that the formal complaint
against him did not comply with the section's
requirements, depriving the Board of jurisdiction over this
proceeding. The Board responds that the complaint was
statutorily compliant and, alternatively, that any defects
are not jurisdictional. See City of DeSoto v. White,
288 S.W.3d 389, 394 (Tex. 2009) (explaining that we presume
statutory requirements are not jurisdictional absent clear
legislative intent to the contrary). We hold that the
complaint met the statutory requirements and thus need not
decide whether those requirements are jurisdictional.
164.005 provides in pertinent part:
(a) In this section, "formal complaint" means a
written statement made by a credible person under oath that
is filed and presented by a board representative charging a
person with having committed an act that, if proven, could
affect the legal rights or privileges of a license holder or
other person under the board's jurisdiction.
(b)Unless otherwise specified, a proceeding under this
subtitle or other applicable law and a charge against a
license holder may be instituted by an authorized
representative of the board.
(c)A charge must be in the form of a written affidavit that:
(1) is filed with the board's records custodian or
assistant records custodian; and
(2) details the nature of the charge as required by this
subtitle or other applicable law.
. . . .
(f) A formal complaint must allege with reasonable certainty
each specific act relied on by the board to constitute a
violation of a specific statute or rule. The formal complaint
must be specific enough to:
(1)enable a person of common understanding to know what is
meant by the formal complaint; and
(2)give the person who is the subject of the formal complaint
notice of each particular act alleged to be a violation of a
specific statute or rule.
Tex. Occ. Code § 164.005(a)-(c), (f). Dr. Aleman does
not contend that the complaint provided insufficient detail
or notice with respect to the particular acts underlying the
alleged violations. Rather, he insists that the complaint was
not "in the form of a written affidavit" or
"made by a credible person under oath" because the
Board staff attorney who signed the complaint lacked personal
knowledge of the events in question.
court of appeals noted, the Texas Government Code defines
"affidavit" as "a statement in writing of a
fact or facts signed by the party making it, sworn to before
an officer authorized to administer oaths, and officially
certified to by the officer under his seal of office."
Tex. Gov't Code § 312.011(1). The complaint at issue
meets this definition: it is in writing, states facts, is
signed by the party stating them, and is sworn and notarized.
We apply this definition in construing civil statutes
"unless a different meaning is apparent from the context
of the statute in which the word appears." Id.
§§ 312.001, .011. But no such different meaning-
i.e., one adding a requirement that the complaint be signed
by a person with personal knowledge-is apparent from the
context of section 164.005.
contrary, section 164.005(b) provides that, "[u]nless
otherwise specified, a proceeding under this subtitle or
other applicable law and a charge against a license holder
may be instituted by an authorized representative of the
board." Tex. Occ. Code § 164.005(b). This provision
would make little sense if personal knowledge were required
because board representatives typically will not have such
knowledge of the facts underlying an alleged Medical Practice
Act violation. Further, the statute contains no indication
that a formal complaint is intended to have evidentiary value
in the proceedings. By contrast, as the court of appeals
recognized, affidavits must affirmatively be "made on
personal knowledge" to constitute competent evidence in
the summary judgment context. Tex.R.Civ.P. 166a(f). Section
164.005 contains no such express requirement, and we decline
to imply one. Accordingly, we hold that the complaint against
Dr. Aleman complied with the Medical Practice Act.
Authorization for Disciplinary Action Under the Medical
Aleman next argues that the Board erred in taking
disciplinary action against him for failing to complete the
medical certification for J.S.'s death certificate
electronically. Under the Administrative Procedure Act, the
Board's order may be reversed if its findings and
conclusions are "not reasonably supported by substantial
evidence" or are "arbitrary or capricious or
characterized by abuse of discretion." Tex. Gov't
Code § 2001.174(2)(E), (F). The Board's factual
findings are reviewed under a substantial evidence standard,
meaning they will be upheld if "more than a mere
scintilla" of evidence supports them. City of Dallas
v. Stewart, 361 S.W.3d 562, 566 (Tex. 2012) (internal
quotation marks omitted). However, the issue here is not
whether Dr. Aleman did or did not certify electronically-it
is undisputed that he did not. Rather, the parties dispute
whether the Medical Practice Act authorized disciplinary
action for that conduct, presenting an issue of statutory
interpretation involves questions of law that we consider de
novo, even when reviewing agency decisions. Cadena
Comercial USA Corp. v. Tex. Alcoholic Beverage
Comm'n, 518 S.W.3d 318, 325 (Tex. 2017). We
generally "rely on the plain meaning of a statute's
words" to discern legislative intent. Id. In
evaluating that language, we construe the words and phrases
chosen by the Legislature in context rather than in
isolation. Id. at 326. That is, "our objective
is not to take definitions and mechanically tack them
together," but to "consider the context and
framework of the entire statute" and construe it as a
the Medical Practice Act, the Board has "the power to
regulate the practice of medicine." Tex. Occ. Code
§ 152.001(a). As part of its authority to enforce the
Act, the Board may take disciplinary action against
physicians who engage in certain statutorily prohibited
practices. See id. § 164.051(a). Among these
prohibited practices, enumerated in section 164.052, is the
commission of "unprofessional or dishonorable conduct
that is likely to deceive or defraud the public, as provided
by Section 164.053, or injure the public." Id.
§ 164.052(a)(5). In turn, section 164.053 provides a
list of acts that, "[f]or purposes of Section
164.052(a)(5), [constitute] unprofessional or dishonorable
conduct likely to deceive or defraud the public."
Id. § 164.053(a). This list includes "an
act that violates any state or federal law if the act is
connected with the physician's practice of
medicine." Id. § 164.053(a)(1).
Board argues that a physician's certifying a death
certificate using pen and paper rather than electronically is
a violation of state law-specifically, Health and Safety Code
section 193.005(h)-and is connected with the physician's
practice of medicine. Thus, the Board concludes, such conduct
is subject to disciplinary action. Dr. Aleman responds that,
even if he technically violated the electronic certification
requirement, section 164.053(a)(1) does not encompass this
type of conduct, which does not "actually" qualify
as unprofessional or dishonorable conduct that could
"actually" deceive or defraud the public. For the
reasons discussed below, we hold that the Medical Practice
Act did not authorize the Board to take disciplinary action
against Dr. Aleman.
Board is correct that, in light of the Health and Safety
Code's electronic certification requirement, Dr. Aleman
necessarily violated state law by certifying J.S.'s death
certificate manually, regardless of his knowledge of the
law's existence. But such conduct was subject to
disciplinary action under the Act only if "connected
with" the practice of medicine. The question thus
arises: what kind of connection is required between the
conduct at issue and the practice of medicine?
when applying statutes requiring a connection between two
things, our analysis hinges on how direct that connection
must be. See ExxonMobil Pipeline Co. v. Coleman, 512
S.W.3d 895, 900 (Tex. 2017) (analyzing whether communications
were made "in connection with" a matter of public
concern under the Texas Citizens Participation Act, and
rejecting the court of appeals' determination that more
than a "tangential relationship" is required to
trigger the Act); Collingsworth Gen. Hosp. v.
Hunnicutt, 988 S.W.2d 706, 709 (Tex. 1998) (examining
whether a hospital employee who was fired for committing an
assault while off duty had nevertheless been terminated for
misconduct "connected with" her work, rendering her
ineligible for unemployment benefits). However, in this case,
the Medical Practice Act further delimits the scope of the
required connection by grouping the conduct described in
section 164.053(a)(1) with a list of behavior that is
sanctionable as "unprofessional or dishonorable conduct
that is likely to deceive or defraud the public." Tex.
Occ. Code §§ 164.052(a)(5), .053(a).
classifying the prohibited conduct in this way,
the Legislature demonstrated its intent to authorize
discipline for certain acts that fall within that category.
Examining the list of qualifying conduct in its entirety
furthers this conclusion:
(a) For purposes of Section 164.052(a)(5), unprofessional or
dishonorable conduct likely to deceive or defraud the public
includes conduct in which a physician:
(1) commits an act that violates any state or federal law if
the act is connected with the physician's ...