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Diruzzo v. State

Court of Criminal Appeals of Texas

September 11, 2019

JOSEPH ANDREW DIRUZZO, Appellant
v.
THE STATE OF TEXAS

          ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRTEENTH COURT OF APPEALS VICTORIA COUNTY

          Keasler, Richardson, Keel, Walker and Slaughter, JJ., joined. Hervey and Newell, JJ., concurred in the result. Keller, P.J., dissented.

          OPINION

          YEARY, J.

         Convicted of sixteen counts of illegally practicing medicine under Section 165.152 of the Texas Occupations Code, Tex. Occupations Code § 165.152, Appellant argued on appeal that the district court never acquired subject matter jurisdiction over the case because the indictment only charged him with misdemeanor offenses. He argued that the trial court erred to deny his motion to quash the indictment raising this issue. The Corpus Christi Court of Appeals rejected Appellant's claim, holding that "the indictment sufficiently alleged the third degree felony offense under [S]ection 165.152, thereby invoking the subject-matter jurisdiction of the trial court." Diruzzo v. State, 549 S.W.3d 301, 309 (Tex. App.-Corpus Christi 2018).

         On discretionary review, Appellant contends that, construing Section 165.152 in pari materia with neighboring provisions in the Texas Occupations Code, it is evident that the indictment alleges no more than a misdemeanor offense under Section 165.151 of the Texas Occupations Code. Tex. Occupations Code § 165.151. Appellant argues that, because the indictment alleged only a misdemeanor offense, the court of appeals erred to hold that the district court acquired subject matter jurisdiction over the case. And because the trial court lacked subject matter jurisdiction, he concludes, it erred to deny his motion to quash the indictment. We agree that the indictment on its face alleged no more than a misdemeanor offense. We therefore reverse the court of appeals' judgment, vacate the trial court's judgment, and remand the cause to the trial court for further proceedings not inconsistent with this opinion.[1]

         I. BACKGROUND

         Appellant was charged in a sixteen-count indictment with sixteen separate instances of practicing medicine without holding a license. Each count alleged that Appellant treated the same patients but on different dates.[2] Each count was also headed by a caption with the following notation: "§§ 155.001 & 165.152 Occupation Code/3rd DEGREE FELONY".[3]After a jury trial, Appellant was convicted on all sixteen counts. The jury assessed his punishment at four years' confinement in the penitentiary for each count (which is well within the range for a third-degree felony offense), and a fine of $1, 500 for each count. The trial court then ordered that Appellant's sentences be served concurrently.

         Prior to trial, Appellant had filed a motion to quash the indictment. At a pre-trial hearing on the motion, Appellant argued that the trial court lacked subject matter jurisdiction because the indictment alleged no more than a misdemeanor offense. His argument was almost wholly predicated on an amendment to Section 165.152 that the Legislature passed in 2003, which he asserted made the provision applicable only to licensed physicians who have violated the Medical Practices Act. He claimed that, after the 2003 amendment, only Sections 165.151 and 165.153 may be read to apply to non-physicians who practice medicine.[4] Because Section 165.153 requires a showing of harm as an element of the felony offense, and because the indictment failed to allege any harm, he urged, the indictment can only be construed to allege the misdemeanor offense described in Section 165.151. And because only misdemeanor offenses are alleged in the indictment, he concluded, it failed to confer subject matter jurisdiction on the district court. The trial court denied Appellant's motion to quash, and the case proceeded to trial.

         II. ON APPEAL

         A. Appellant's Claim

         On appeal, Appellant pursued his pre-trial claim that the indictment alleged no more than a misdemeanor offense, thus depriving the trial court of subject matter jurisdiction. His argument was predicated on the provisions of Subchapter D ("Criminal Penalties") of Chapter 165 ("Penalties") of the subtitle of the Occupations Code that regulates physicians. He maintained that, reading current Sections 165.151, 165.152, and 165.153 in pari materia makes it clear that Section 165.152-the provision under which the indictment purported to charge Appellant-was not meant to regulate non-physicians who engage in the practice of medicine.[5] He argued that only Sections 165.151 and 165.153 reach the offense of practicing medicine without a license. The latter makes the offense a felony, he contended, depending upon a showing of harm; and in the absence of such a showing, the former makes it a misdemeanor. Appellant argued that, because the indictment did not allege harm, it only alleged the Class A misdemeanor offense under Section 165.151. In order to gain an adequate perspective on Appellant's in pari materia claim, it is necessary to review, in some detail, the history of these statutory provisions.

         B. The Medical Practice Act

         When the Medical Practice Act was enacted in 1981, the provision making it an offense to practice medicine in violation of its requirements was wholly contained in a single subsection-Article 4495b, Section 3.07(a), which read:

Sec. 3.07. (a) A person practicing medicine in violation of this Act commits an offense. Except as provided for by this section, an offense under this section is a Class A misdemeanor. If it be shown in the trial of a violation of this Act that the person has once before been convicted of a violation of this Act, on conviction that person shall be punished for a third degree felony. Each day of violation constitutes a separate offense. On final conviction of an offense under this section, a person forfeits all rights and privileges conferred by virtue of his licensure under this Act.

See Acts 1981, 67th Leg., ch. 1, § 1, p. 18, eff. Aug. 5, 1981 (enacting Vernon's Ann. Civ. St. art. 4495b, § 3.07(a)). Whether this provision was meant to cover persons purporting to practice medicine without a license to do so could perhaps be open to debate.[6] But that question appears to have been mooted by a legislative amendment to Section 3.07(a) in 1995. The amendment reads:

(a) A person practicing medicine in this state must be licensed under this Act. A person practicing medicine in violation of this act commits an offense. Except as provided by this section, an offense under this section is a Class A misdemeanor.
(1) If it be shown in the trial of a violation of this Act that the person has once before been convicted of a violation of this Act, on conviction that person shall be punished for a third degree felony. Each day of violation constitutes a separate offense. On final conviction of an offense under this section, a person forfeits all rights and privileges conferred by virtue of his licensure under this Act.
(2) A person practicing medicine without a valid license or permit and who causes physical or psychological harm to another by such practice shall, on conviction, be punished for a third degree felony.
(3) A person practicing medicine without a valid license or permit and who causes financial harm to another by such practice shall, on conviction, be punished for a state jail felony.

Acts 1995, 74th Leg., ch. 868, § 1, pp. 4321-22, eff. Sept. 1, 1995 (1995 additions in italics). This amendment leaves no doubt that the penalty provision in Section 3.07(a) of the Medical Practice Act was intended to apply-as of 1995, if not before-both to physicians who practice medicine in violation of the Act as well as to non-physicians who purport to practice medicine but who lack a valid license to do so.

         C. Codification in the Texas Occupations Code

         The Medical Practice Act was incorporated into the Texas Occupations Code in 1999. The caption of the 1999 legislation states that this codification was intended to effectuate "the adoption of a nonsubstantive revision of statutes" relating to the licensing and regulation of certain professions including the practice of medicine. Acts 1999, 76th Leg., ch. 388, § 1, p. 1431, eff. Sept. 1, 1999. When it came to Section 3.07(a) of the former Medical Practice Act, however, the Texas Occupation Code re-codification broke what was formerly one subsection into four discrete statutes: Sections 155.001, 165.151, 165.152, and 165.153. As originally re-codified in 1999, those provisions read:

§ 155.001. LICENSE REQUIRED
A person may not practice medicine in this state unless the person holds a license issued under this subtitle.
§ 165.151. GENERAL CRIMINAL PENALTY
(a) A person commits an offense if the person violates this subtitle or a rule of the board.
(b) If another penalty is not specified for the offense, an offense under this section is a Class A misdemeanor.
§ 165.152. PRACTICING MEDICINE IN VIOLATION OF SUBTITLE
(a) A person commits an offense if the person practices medicine in this state in violation of this subtitle.
(b) Each day a violation continues constitutes a separate offense.
(c) An offense under Subsection (a) is a Class A misdemeanor, except that if it is shown in the trial of the offense that the defendant has previously been convicted under Subsection (a), the offense is a felony of the third degree.
(d) On final conviction of an offense under this section, a person forfeits all rights and privileges conferred by virtue of a ...

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