Opinion
03-22-00752-CV
05-09-2024
Ray D. Snider, DDS, Appellant v. Texas State Board of Dental Examiners; David H. Yu, DDS, Presiding Officer; and Melinda Heiber, Director of Enforcement, Appellees
FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-22-001894, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
Before Justices Kelly, Smith, and Jones [*]
MEMORANDUM OPINION
J. Woodfin Jones, Justice
Ray D. Snider, a dentist, sued the Texas State Board of Dental Examiners (the Board) and two of its officials, David H. Yu and Melinda Heiber (the Officials), complaining that the Officials committed acts beyond their legal authority and that the Board's interpretation of a Board Rule effectively amended or repealed the existing rule without utilizing the mandatory rulemaking procedures. The defendants filed a plea to the jurisdiction, which the trial court granted. Snider perfected this appeal. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2011 the Board brought a disciplinary case against Snider, alleging that he had violated the Dental Practice Act and Board rules by delegating to one of his dental assistants the taking of impressions for an orthodontic appliance. The Board also asserted that the actions of Snider's assistant, who happened to be his wife, constituted practicing dentistry without a license, a criminal offense. The Board's disciplinary action ultimately resulted in an Agreed Settlement Order (ASO), dated April 27, 2012, in which the Board found that Snider's conduct constituted a violation of various statutes and Board rules. The ASO suspended Snider's dental license for 10 years from the date of the Order, although the suspension was probated in its entirety. The ASO prohibited Snider from practicing "orthodontic dentistry" "for the duration of this Order." By agreeing to and signing the ASO, Snider waived "any right to judicial review of this Order."
The ASO also recited, however, that "Respondent's [Snider's] signature hereon does not constitute either admission or denial of the allegations set forth in this Order or the underlying complaint, and it does not constitute admission or denial of the findings of fact and the conclusions of law set forth."
A week before the ASO was due to expire in April 2022, Snider brought this suit challenging the actions of the Board and the Officials. In it, he complained that he had signed the ASO "under duress" and only because "he could not afford to risk the loss of his license in mid-career nor bear the financial burden or time and effort necessary to defend both himself and his wife . . . against a state agency with unlimited resources, while simultaneously defending a criminal case initiated by the [Board]." He complained that the Officials had committed acts beyond their legal authority by misinterpreting and misapplying a Board rule and statute. He also asserted a rule challenge complaining that the Board had misapplied the rule. The Board filed a plea to the jurisdiction asserting that Snider's petition was not sufficient to show a waiver of sovereign immunity, either in his claim against the Officials or his claim against the Board. The trial court granted the Board's plea and dismissed Snider's case for lack of jurisdiction. The court also sustained the Board's objections to exhibits Snider had attached to his petition. Snider perfected this appeal. We will affirm.
DISCUSSION
Snider presents two issues in his Appellant's Brief. First, he contends the trial court erred in sustaining the Board's objections to exhibits he attached to his petition. Second, he asserts that the trial court erred in granting the Board's plea to the jurisdiction. Within the second issue, he argues first that the Officials acted without legal authority in two ways and that sovereign immunity does not protect their ultra vires acts. He next argues that Section 2001.038 of the Administrative Procedure Act (APA) waived sovereign immunity for his challenge to Board Rule 114.1 as interpreted and applied by the Board. See Tex. Gov't Code § 2001.038(a).
I. Did the trial court err in sustaining the Board's objections to the exhibits attached to Snider's petition?
In his first issue, Snider asserts that the trial court erred in sustaining the Board's objections to several exhibits he attached to his live petition. For the most part, those exhibits were letters from dentists supporting his interpretation of Board Rule 114.1 and Section 258.001 of the Texas Occupations Code. Snider argues that the exhibits were relevant to show the standard of care and scope of practice with respect to the use of dental auxiliaries in orthodontics. To the extent those matters are relevant to this appeal, however, the significant portions of the exhibits were quoted in his petition. Those quotations were not stricken from the petition and thus remain as part of his pleading that must be taken as true for purposes of determining the Board's plea to the jurisdiction. Accordingly, whether the trial court erred in sustaining the Board's objections is academic. The important portions of the exhibits remained. Because Snider does not show reversible error as to this point, we overrule this issue.
II. Did the trial court err in granting the Board's plea to the jurisdiction?
A plea to the jurisdiction challenges the court's subject-matter jurisdiction to hear the case, which is a question of law that we review de novo. Harris Cnty. v. Annab, 547 S.W.3d 609, 612 (Tex. 2018). Here, the Board challenged the adequacy of Snider's pleadings but did not present evidence to refute the factual allegations in his petition. In those circumstances,
"we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause." In determining whether the plaintiff has met that burden, "we liberally construe the pleadings, taking all factual assertions as true and looking to [the plaintiff's] intent."Texas Dep't of Crim. Just. v. Rangel, 595 S.W.3d 198, 205 (Tex. 2020) (quoting Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) and City of Ingleside v. City of Corpus Christi, 469 S.W.3d 589, 590 (Tex. 2015)).
A. Ultra vires claim
Snider sued the Officials in their "official and individual capacities," alleging that they acted without legal authority in several ways. Sovereign immunity does not bar a claim against government officers in their official capacities for acting without legal authority or for failing to perform a purely ministerial act, a claim known as an ultra vires suit. See Schroeder v. Escalera Ranch Owners' Ass'n, 646 S.W.3d 329, 332 (Tex. 2022). To fall within the ultra vires exception, "a suit must not complain of a government officer's exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act." Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 161 (Tex. 2016) (quoting City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009)).
We note that the Board itself is not a proper party to Snider's ultra vires claim. See City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009) (holding that "[ultra vires] suits cannot be brought against the state, which retains immunity, but must be brought against the state actors in their official capacity.").
In some instances, however, a statute may place requirements or restrictions on government officers in how they carry out certain of their responsibilities. Such statutes may thus put a limit on the officers' discretion. Accordingly, government officials' discretion in exercising the powers granted them is not immaterial and in some cases may be central to ultra vires analysis:
[G]overnmental immunity protects exercises of discretion, but when an officer acts beyond his granted discretion-in other words, when he acts without legal authority-his acts are not protected. Thus, "discretion," as we have used the term in this context, cannot mean limited discretion that is otherwise constrained by the principles of law. . . . [G]overnmental immunity bars suits complaining of an exercise of absolute discretion but not suits complaining of either an officer's failure to perform a ministerial act or an officer's exercise of judgment or limited discretion without reference to or in conflict with the constraints of the law authorizing the official to act. Only when such absolute discretion-free decision-making without any constraints-is granted are ultra vires suits absolutely barred.Id. at 163 (citations omitted).
We note also that "merely asserting legal conclusions or labeling a defendant's actions as 'ultra vires,' 'illegal,' or 'unconstitutional' does not suffice to plead an ultra vires claim-what matters is whether the facts alleged constitute actions beyond the governmental actor's statutory authority, properly construed." Texas Dep't of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691, 702 (Tex. App.-Austin 2011, no pet.); see also Creedmoor-Maha Water Supply Corp. v. Texas Comm'n on Env't Quality, 307 S.W.3d 505, 515-16 (Tex. App.-Austin 2010, no pet.) (holding that "if the claimant is attempting to restrain a state officer's conduct on the grounds that it is unconstitutional, it must allege facts that actually constitute a constitutional violation" to fall within ultra vires exception).
Snider's ultra vires claim against the Officials thus seeks to avoid the bar of sovereign immunity. See Van Boven v. Freshour, 659 S.W.3d 396, 401 (Tex. 2022). Because the Board did not offer evidence in an attempt to refute the facts alleged in Snider's petition, "we liberally construe the pleadings, taking all factual assertions as true and looking to [the plaintiff's] intent." Rangel, 595 S.W.3d at 205.
In his live petition, Snider alleged that the Officials acted without legal authority by (1) "coercing Dr. Snider, through threats of criminal prosecution[,] to extract a civil settlement"; (2) imposing the ASO "without Statutory Authority or in excess of Statutory Authority" by misinterpreting or misapplying relevant statutes and rules; (3) issuing an ASO that lacks "clear standards"; and (4) failing to give Snider an order and hearing on his motion to modify the ASO. In his Appellant's Brief in this Court, Snider argues the second and fourth of these issues.
Snider's Appellant's Brief in this Court does not sufficiently argue the first and third issues listed above. See RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 126 (Tex. 2018) ("A brief must provide citations or argument and analysis for the contentions and failure to do this can result in waiver."). To the extent such issues could be considered adequately raised, we overrule them without further discussion.
(1) Did the Officials act without legal authority by misinterpreting and misapplying Board Rule 114.1 and Section 258.001 of the Texas Occupations Code?
Snider argues first that the Officials acted in excess of their legal authority by interpreting Board Rule 114.1-and, concomitantly, Section 258.001 of the Texas Occupations Code-to prohibit a dentist from delegating to dental assistants the taking of impressions for orthodontic appliances. Rule 114.1 provides that "[a] dentist may delegate to a dental assistant the authority to perform acts or procedures that are reversible. An act or procedure that is reversible is capable of being reversed or corrected." 22 Tex. Admin. Code § 114.1(a) (2023) (State Bd. of Dental Exam'rs, Extension of Duties of Auxiliary Personnel-Dental Assistants). Section 258.001 of the Occupations Code provides that "[a] dentist may not delegate: . . . (3) any of the following acts to a person not licensed as a dentist: . . . (D) the taking of an impression for a final restoration, appliance, or prosthesis." Tex. Occ. Code § 258.001.
The Officials' interpretation of these provisions necessarily implies that they construed Section 258.001 to mean that an orthodontic appliance was a "final" appliance, such that the taking of an impression for such an appliance by a non-dentist was forbidden by the statute. The Board also necessarily interpreted Rule 114.1 to mean that the taking of an impression for an orthodontic appliance is not a "reversible" procedure. Snider contends the Officials' interpretations of the statute and rule effectively "suspended" those provisions, and that such suspension was beyond their legal authority, thereby rendering the ASO void.
We reject Snider's argument for at least two reasons. First, the 2012 ASO expired by its own terms a week after Snider filed this suit challenging it. Accordingly, a ruling by the trial court or this Court as to its validity would have no legal effect. It is certainly true that in the usual case a collateral attack may raise subject-matter jurisdiction at any time. See Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008). Because the ASO had already expired, however, this is not the "usual" case. Absent extraordinary circumstances not present here, the expiration of an order by its own terms renders any challenge to the order moot. See, e.g., In re Alleman, No. 03-23-00602-C V, 2023 WL 8852382, at *1 (Tex. App.-Austin Dec. 22, 2023) (orig. proceeding) (mem. op.) ("[T]he TRO was no longer in force . . ., rendering Alleman's request to vacate the TRO moot."). Accordingly, Snider's challenge to the validity of the ASO is moot.
Second, the Officials have broad authority to interpret relevant statutes and the Board's own rules. The Dental Practice Act expressly authorizes the Board to "adopt and enforce rules necessary to: . . . (2) ensure compliance with state laws relating to the practice of dentistry to protect the public health and safety." Tex. Occ. Code § 254.001(a); see also Akin v. State Bd. of Dental Exam'rs, No. 03-14-00390-CV, 2015 WL 1611803, at *6 (Tex. App.-Austin Apr. 9, 2015, no pet.) (mem. op.).
Section 258.001 prohibits certain acts by a dentist, including delegating to a non-dentist the taking of an impression for a "final appliance," but the Dental Practice Act neither defines the term "final appliance" nor limits or constrains the Officials in how they decide what falls within that term. Accordingly, the Officials' interpretation of Section 258.001 is "collateral" to their organic authority to interpret that provision. "When the ultimate and unrestrained objective of an official's duty is to interpret collateral law, a misinterpretation is not overstepping such authority; it is a compliant action even if ultimately erroneous." Hall v. McRaven, 508 S.W.3d 232, 242 (Tex. 2017). The dispositive issue, therefore, is not whether the Officials' interpretation of "final appliance" was right or wrong but whether they exceeded their authority either in making an interpretation at all or in the process by which they made it. See id. ("In order to act without legal authority in carrying out a duty to interpret and apply the law, [a government official] must have exercised discretion 'without reference to or in conflict with the constraints of the law authorizing [him] to act.'").
Because the Dental Practice Act does not limit or restrict the Officials' discretion in interpreting the provisions of the Act, they had unrestricted authority to construe Section 258.001. Accordingly, their discretion in doing so is considered "absolute." See id. at 243. The Officials therefore did not exceed their legal authority in deciding that an orthodontic appliance constituted a "final appliance." Their interpretation, whether right or wrong, does not support an ultra vires claim. See id.
With respect to the Officials' interpretation and application of Board Rule 114.1, Snider similarly argues that the Officials acted without legal authority by construing the rule to prohibit him from delegating to dental assistants the taking of impressions for orthodontic appliances. Snider contends the Officials effectively amended or repealed Rule 114.1 by their interpretation. As with the Officials' authority to interpret Section 258.001, however, their authority to interpret Rule 114.1 is not restricted or constrained in any way by statute or rule. Accordingly, their legal authority to construe the rule is absolute. See id. Their interpretation of Rule 114.1 therefore does not support an ultra vires claim.
(2) Did the Officials act without legal authority in failing to give Snider a hearing and written order on his motion to modify the ASO?
Snider also asserts that the Officials acted without legal authority by failing to give him a hearing and written order on his motion to modify the ASO. In his petition, Snider alleged that following the rendition of the ASO he sought modification of the Order by filing one or more motions under Board Rule 107.66, which states that "[a] licensee or registrant in current status seeking modification of a prior Board Order may submit a written application for modification of the Board Order." 22 Tex. Admin. Code § 107.66 (2023) (State Bd. of Dental Exam'rs, Examining Boards). Snider's petition alleged that he "was deprived of a written response to his motion, of findings and conclusions on his motion, and of the opportunity to request a hearing and appeal the TSBDE's action on the motion."
As to this claim, the Officials would have acted without legal authority only if they exceeded their statutory authority or failed to perform a ministerial act by failing to provide Snider a written response to his motions, findings and conclusions, and a hearing. See Phillips v. McNeill, 635 S.W.3d 620, 629 (Tex. 2021) ("[I]f he had a statutory right to a hearing, the officials' failure to perform the ministerial act of commencing one is not shielded by sovereign immunity."). The extent of the Officials' duty and authority in that regard "is dependent upon the grant of authority at issue." Schroeder v. Escalera Ranch Owners' Ass'n, 646 S.W.3d 329, 333 (Tex. 2022) (quoting Houston Belt & Terminal, 487 S.W.3d at 164). Snider has not cited, and we have not found, any statutory provision requiring the Officials to provide a written response, findings and conclusions, or a hearing to a dentist moving for modification of a prior Board Order. Indeed, we have not found any statutory provision addressing the issue at all.
Arguably relevant to this issue, however, is a section of the Administrative Code pertaining to the Dental Board's handling of an application for modification of a previously issued order. Board Rule 107.67 provides as follows, in pertinent part:
(a) Applications for modification [of a Board Order] may be reviewed at an informal settlement conference empaneled by staff or Board members. The panel shall make a recommendation to the Board concerning the application.
(b) The Board, in its discretion, may accept or reject the panel's recommendation to grant or deny the application or modify the original findings to reflect changed circumstances.22 Tex. Admin. Code § 107.67 (2023) (State Bd. of Dental Examiners, Examining Boards).
Properly adopted agency rules have the force and effect of statutory law. See Lewis v. Jacksonville Bldg. & Loan Ass'n, 540 S.W.2d 307, 310 (Tex. 1976) ("Valid rules and regulations promulgated by an administrative agency acting within its statutory authority have the force and effect of legislation."); accord Little v. Texas Bd. of L. Exam'rs, 334 S.W.3d 860, 862 (Tex. App.- Austin 2011, no pet.). Accordingly, such rules can constrain or limit an official's discretion.
Here, however, Board Rule 107.067 does not command the empanelment of an informal settlement conference. Rather, Subsection (a) simply states that such a conference "may" be empaneled to review a motion to modify. Subsection (a) also contains a statement that the panel "shall" make a recommendation to the Board concerning the application, but the necessary implication from the Rule as a whole is that the requirement for a recommendation arises only if a panel is actually empaneled and reviews the application. Similarly, Subsection (b) of the Rule can reasonably be read to mean that the Board may accept or reject the panel's recommendation if in fact a panel is appointed, reviews the motion, and makes a recommendation. Because Board Rule 107.67 does not create a ministerial duty to empanel such a body, an interpretation allowing such a panel not to be created does not conflict with the terms of the Rule. In the absence of such a conflict, no ultra vires action is shown. See Morath v. Sterling City Indep. Sch. Dist., 499 S.W.3d 407, 418-19 (Tex. 2016) ("[T]he board may not violate the statute, but absent 'a manifest conflict with statutory terms' or a 'conspicuous and irreconcilable conflict,' courts could not review the board's actions.").
In any event, Rule 107.67 contains no requirement that the Officials share with the applicant any recommendation a settlement conference panel may make. Nor does it require that the Board give the applicant a written response to his motion, provide a hearing, or issue findings and conclusions.
Accordingly, by failing to have a hearing on Snider's motion to modify, to give him a written response to the motion, and to issue findings and conclusions, the Officials did not act without legal authority. Snider's pleadings therefore do not support an ultra vires claim. The Officials are protected by governmental immunity from this ultra vires suit brought against them in their official capacities.
With regard to Snider's claim against the Officials in their individual capacities, it is settled law that "[g]overnment employees sued in their official capacity are entitled to assert the government's own immunity from suit (unless they act ultra vires), and employees sued in their individual capacity are protected by official immunity." Nettles v. GTECH Corp., 606 S.W.3d 726, 732 n.3 (Tex. 2020) (emphasis added). Here, the Officials satisfy the requirements for the application of official immunity. See City of San Antonio v. Riojas, 640 S.W.3d 534, 537-38 (Tex. 2022) (holding that official immunity "inures to all governmental employees who perform discretionary functions in good faith and within their authority" (quoting DeWitt v. Harris County, 904 S.W.2d 650, 652 (Tex. 1995)). Because the officials are protected by official immunity, the trial court did not err in dismissing Snider's suit against them in their individual capacities.
The trial court therefore did not err in dismissing for lack of jurisdiction Snider's ultra vires claim against the Officials.
B. Rule challenge
Snider also challenges the Board's interpretation and application of Board Rule 114.1. As discussed above, Snider contends the Board's construction of Rule 114.1 was ultra vires because it effectively repealed or amended the rule. In addition, however, he challenges the applicability of the Board's interpretation of Rule 114.1 under Section 2001.038 of the Texas APA.
Section 2001.038 of the APA waives sovereign immunity for a challenge to an administrative rule if certain requirements are met:
The validity or applicability of a rule . . . may be determined in an action for declaratory judgment if it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.Tex. Gov't Code § 2001.038(a). We reject Snider's rule challenge under Section 2001.038 for several reasons.
In his Appellant's Brief, Snider asserts that his live petition challenged both the validity and the applicability of Rule 114.1. A close reading of his petition, however, leads to the conclusion that only an applicability challenge was pleaded. In his challenge to Rule 114.1, Snider argues that the Board misapplied the existing Rule to his circumstances. The question of whether a rule is "applicable," however, "asks whether that rule may be applied to a factual situation or whether it is inappropriate or irrelevant to the situation." LMV-AL Ventures, LLC v. Texas Dep't of Aging & Disability Servs., 520 S.W.3d 113, 124 (Tex. App.-Austin 2017, pet. denied). That is, an applicability challenge asks whether a rule can be applied to a situation at all, not how it should be applied to a specific circumstance. We have held that "a trial court has jurisdiction under section 2001.038 to determine (1) whether the rule is valid and (2) whether it is 'applicable'; section 2001.038 does not grant the court jurisdiction to go beyond those questions to determine whether the agency complied with the rule." Id.; see also Texas Dep't of State Health Servs. v. Kensington Title-Nev., LLC, No. 03-21-00370-CV, 2023 WL 4373384, at *3 (Tex. App.-Austin July 7, 2023, pet. pending) (mem. op.) ("A rule-applicability challenge is limited to determining whether a rule is capable of being applied to or is relevant to a factual situation. Section 2001.038(a) does not, however, confer jurisdiction for a court to determine whether an agency has complied with a rule or how the rule should be applied.").
Clearly Rule 114.1 is applicable here in a general sense, but Section 2001.038 does not give us jurisdiction to consider how Rule 114.1 should be applied to the specific facts at issue in this case, i.e., whether the Board erroneously concluded that a dentist's delegating to an assistant the taking of an impression for an orthodontic appliance violates Section 258.001 of the Occupations Code.
CONCLUSION
Having overruled Snider's appellate issues, we affirm the trial court's order of dismissal.
Affirmed.
[*]Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code § 74.003(b).