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 ...