the-texas-state-board-of-pharmacy-and-in-their-official-capacities-only ( 2013 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00560-CV
The Texas State Board of Pharmacy, and in their official capacities only, Gay Dodson,
Executive Director; and Jeanne D. Waggener, President of the Board, Appellants
v.
Tiana Jean Witcher, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-12-000026, HONORABLE TIM SULAK, JUDGE PRESIDING
DISSENTING OPINION
The only issue in this appeal is the sanction imposed against appellee
Tiana Jean Witcher by the Texas State Board of Pharmacy. The Board’s sanction against
Witcher—suspending her Texas pharmacy license—was within the statutory range of punishment
and consistent with past precedent and expressed policy concerns. Nonetheless, the majority
concludes that the Board imposed the sanction based upon an invalid rule—a binding
“reciprocal-sanctions policy.” Because the record supports that the Board did not have a binding
policy and that it properly considered the facts and circumstances of this case, I respectfully dissent.
Section 2001.003(6) of the government code defines a rule to mean a “state agency
statement of general applicability.” Tex. Gov’t Code Ann. § 2001.003(6) (West 2008). As the
majority recognizes, for an agency statement to be a rule, it must “bind the agency or otherwise
represent its authoritative position in matters that impact personal rights.” Texas Dep’t of Transp.
v. Sunset Transp., Inc., 357 S.W.3d 691, 703 (Tex. App.—Austin 2011, no pet.); see Slay v. Texas
Comm’n on Envtl. Quality, 351 S.W.3d 532, 546 (Tex. App.—Austin 2011, pet. denied) (noting that
“core concept [of rule] is that the agency statement must in itself have a binding effect on
private parties”).
The majority concludes that the Board’s “previously articulated policy that a
pharmacist with an active suspension in another state cannot practice pharmacy in Texas” was an
invalid rule. The majority focuses on testimony by the Board’s director of enforcement at the
contested case hearing and the Board’s statements in its order concerning policy reasons for
imposing a reciprocal sanction against Witcher. At the hearing, the director relied upon a prior order
in which the Board imposed a reciprocal sanction of suspension based upon the disciplinary action
by another state’s board of pharmacy. See In re Nealy, Bd. Order #N-03-005, SOAH Docket
No. XXX-XX-XXXX (2005). In Nealy, the Board noted that, “[i]n previous cases with similar facts, the
Board has typically imposed disciplinary action mirroring the action by another state board of
pharmacy.” But the fact that the Board has “typically imposed” a mirror sanction when faced with
disciplinary action by another state board does not foreclose the Board from imposing a different
sanction within its discretion depending on the facts and circumstances of a particular case. See Slay,
351 S.W.3d at 546.
In the context of an agency’s written policy “setting forth an elaborate methodology
for applying statutory criteria” to determine administrative penalties, this Court has explained the
difference between a non-binding guideline and a rule. Id. at 538. In that case, we concluded that
the district court did not err in determining that the “Penalty Policy” at issue was not a rule. Id. at
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548. We explained: “[W]hat ultimately matters is that the district court also had evidence to the
effect that the [agency] commissioners were not bound to follow the Penalty Policy’s methodology
when exercising their legislatively conferred discretion to impose penalties.” Id. at 546 (emphasis
in original); see also Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 443 (Tex. 1994) (“Not every
statement by an administrative agency is a rule.”); Texas Mut. Ins. Co. v. Vista Cmty. Med. Ctr., LLP,
275 S.W.3d 538, 555 (Tex. App.—Austin 2008, pet. denied) (noting it is “well-established that not
every administrative pronouncement is a rule”); Brinkley v. Texas Lottery Comm’n, 986 S.W.2d 764,
769 (Tex. App.—Austin 1999, no pet.) (observing that agencies routinely issue documents such as
guidelines “which might contain statements that intrinsically implement, interpret, or prescribe law,
policy, or procedure or practice requirements” that are not rules).
Here, the district court had evidence that the Board was not bound to impose a
sanction of suspension. The Board’s own conduct demonstrated that it was not bound to apply a
reciprocal sanction but that it did so within its discretion and consistent with prior decisions
addressing similar facts. See Tex. Occ. Code Ann. § 565.051(1) (West 2012) (board “may” “suspend
the person’s license”); 22 Tex. Admin. Code § 281.60 (2012) (Texas State Bd. of Pharmacy, General
Guidance)1; Pierce v. Texas Racing Comm’n, 212 S.W.3d 745, 754, 757 (Tex. App.—Austin 2006,
1
Section 281.60 states in relevant part:
(a) This subchapter is promulgated to:
(1) promote consistency and guidance in the exercise of the sound
discretion by the agency in licensure and disciplinary matters; . . .
(b) Board’s role. The board shall render the final decision in a contested case
and has the responsibility to assess sanctions against licensees who are found
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pet. denied) (noting that “[p]olicy considerations . . . are the reason that the Commission is granted
discretion over what penalties should be imposed for racing violations” and upholding penalty that
“followed its guidelines” and “decade of precedent”); see also Austin Chevrolet, Inc. v. Motor
Vehicle Bd., 212 S.W.3d 425, 438 (Tex. App.—Austin 2006, pet. denied) (noting that “a licensing
authority acts arbitrarily and unlawfully if it treats similarly situated applicants differently without
an articulated justification”). The sole purpose of the contested case hearing was to determine the
appropriate sanction. It was undisputed that Witcher’s license was suspended in North Carolina, and
she did not challenge the process or procedure in North Carolina that resulted in the suspension. If
the board was “duty-bound” to suspend Witcher’s license because her North Carolina license was
suspended, as the majority suggests, why have the hearing? Why admit evidence at the hearing
concerning the facts and circumstances of Witcher’s particular case?
The Board’s conclusions of law recognized that it did not have a binding policy that
dictated the sanction of suspension against Witcher. The Board concluded that it “[did] not have a
written policy or rule requiring that a pharmacist be prevented from practicing in Texas until the
pharmacist resolves restrictions on her license in another state.” Similarly, at the open meeting
to have violated the Act. . . . A sanction should be consistent with sanctions
imposed in other similar cases and should reflect the board’s determination
of the seriousness of the violation and the sanction required to deter future
violations. A determination of the appropriate sanction is reserved to the
board. . . .
22 Tex. Admin. Code § 281.60 (2012) (Texas State Bd. of Pharmacy, General Guidance)
(emphasis added).
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where the Administrative Law Judge’s proposal for decision was considered, the Board’s
representative stated:
There is not a policy that requires you to suspend when somebody is suspended in
another state. However, suspension is an option. And so what you have to do is look
at the facts - - the findings of fact in this case and decide based upon everything that
the Judge found, based upon her impairment, based on her management of that
impairment, based upon her status in North Carolina what of your disciplinary
options do you think is the appropriate option. And I’ve given you the arguments
why I believe that it should be suspension and why we should look at what the other
state did. But, no, there’s not a policy that requires you to suspend and that’s not
what I’m asserting; but there is no need to have a policy on the flip side. It’s not
required that you have a policy that says what you do in these situations.
In contrast to the majority’s conclusion that the Board’s “reciprocal-sanctions policy” was a “bright-
line rule that is applicable without regard to individual circumstances,” the Board’s representative
made clear to the Board that the appropriate sanction for Witcher was within the Board’s
discretion— not a foregone conclusion—and then argued for suspension based upon policy reasons.
See Fay-Ray Corp. v. Texas Alcoholic Beverage Comm’n, 959 S.W.2d 362, 369 (Tex. App.—Austin
1998, no pet.) (upholding revocation of permit and noting that “an agency has broad discretion in
determining which sanction best serves the statutory policies committed to the agency’s oversight”);
Sears v. Texas State Bd. of Dental Exam’rs, 759 S.W.2d 748, 751 (Tex. App.—Austin 1988, no pet.)
(“[T]he choice of penalty is vested in the agency, not in the courts.”).
Further, unlike the agency statements that were found to be rules in the cases cited
by the majority, the agency statements at issue here were made during contested case hearings in the
context of determining the appropriate sanction against an individual. Compare El Paso Hosp. Dist.
v. Texas Health & Human Servs. Comm’n, 247 S.W.3d 709, 711–12 (Tex. 2008) (concluding that
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agency’s “data-collection method for calculating prospective Medicaid inpatient service rates” was
rule in suit for declaratory relief); Combs v. Entertainment Publ’ns, Inc., 292 S.W.3d 712, 715 (Tex.
App.—Austin 2009, no pet.) (concluding legal interpretations in letters sent by Comptroller were
rules in suit for declaratory and injunctive relief), with Railroad Comm’n of Tex. v. WBD Oil & Gas
Co., 104 S.W.3d 69, 70, 79 (Tex. 2003) (concluding that “field rules” were not rules of “general
applicability” and noting that APA definition of rule “does not reference statements made in
determining individual rights”).
Because I would conclude that the Board did not act based upon an invalid rule and
that it considered the facts and circumstances of Witcher’s case and then acted well within its
discretion to impose the sanction of license suspension, I would affirm the order of the Board and
reverse the trial court’s judgment.2
__________________________________________
Melissa Goodwin, Justice
Before Chief Justice Jones, Justices Goodwin and Field
Filed: May 3, 2013
2
I also disagree with the majority’s suggestion that, even if the Board’s decision was not
based upon an invalid rule, that its decision would be arbitrary and capricious. According to her own
testimony, Witcher had no plans to return to North Carolina to practice pharmacy in North Carolina,
or otherwise clear the North Carolina suspension because of lack of financial resources. I question
whether a licensing board would be acting arbitrarily or capriciously by refusing to excuse
compliance with another state’s unchallenged sanction based upon the licensee’s lack of
financial resources.
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