A Portion of The Medical Practice Act Section

particularly look at Sections 164.004 and 164.005.
§164.003. Informal Proceedings (I think the corresponding "formal" proceeding

would be a SOAH sp)
(a) The board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under Section 2001.056, Government
Code; and
(2) informal proceedings held in compliance with Section 2001.054, Government
Code.
(b) Rules adopted under this section must require that:
(1) an informal meeting in compliance with Section 2001.054, Government Code (this
th
is the "Texas Administrative Code" sp), be scheduled not later than the 180 day after
the date the complaint is filed with the board under Section 154.051, unless good
cause is shown by the board for scheduling the informal meeting after that date;
(2) the board give notice to the license holder of the time and place of the meeting
th
not later than the 30 day before the date the meeting is held;
(3) the complainant (as far as I know, the board NEVER allows the doctor to see the
complainant's face sp) and the license holder be provided an opportunity to be heard;
(4) the board’s legal counsel or a representative of the attorney general be present to
advise the board or the board’s staff; and
(5) a member of the board’s staff at the meeting present to the board’s representative
the facts the staff reasonably believes it could prove by competent evidence or
qualified witnesses at a hearing.
(c) An affected physician is entitled to:
(1) reply to the staff’s presentation; and
(2) present the facts the physician reasonably believes the physician could prove by
competent evidence or qualified witnesses at a hearing.
(d) After ample time is given for the presentations, the board representative shall
recommend that the investigation be closed or shall attempt to mediate the disputed
matters and make a recommendation regarding the disposition of the case in the absence
of a hearing under applicable law concerning contested cases.
(e) If the license holder has previously been the subject of disciplinary action by the
board, the board shall schedule the informal meeting as soon as practicable but not later
than the deadline prescribed by Subsection (b)(1).
§164.0035. Dismissal of Baseless Complaint

If, during the 180-day period prescribed by Section 164.003(b)(1), the board determines that
the complaint is a baseless or unfounded complaint, the board shall dismiss the complaint
and include a statement in the records of the complaint that the reason for the dismissal is
because the complaint was baseless or unfounded. The board shall adopt rules that establish
criteria for determining that a complaint is baseless or unfounded.
need to know what these criteria are, get copy; it is probably done in private, but we need
to know if there is a formal decision written decision that explains why they think it is not
baseless or not -Rene Umali 7/3/09 7:27 AM
§164.004. Compliance With Due Process Requirements

(a) Except in the case of a suspension under Section 164.059 or under the terms of an
agreement between the board and a license holder, a revocation, suspension, involuntary
modification, or other disciplinary action relating to a license is not effective unless,
before board proceedings are instituted:
(1) the board gives notice, in a manner consistent with the notice requirements under
Section 154.053, to the affected license holder of the facts or conduct alleged to
type here -Rene Umali 7/3/09 7:39 AM
warrant the intended action; and
(there was no new event; there were no facts; I received no notice of any facts or
conduct alleged to warrant suspension) -ShirleyPigottMD 7/3/09 9:43 AM SP
(2) the license holder is given an opportunity to show compliance with all
requirements of law for the retention of the license, at the license holder’s option,
either in writing or through personal appearance at an informal meeting with one or
more representatives of the board.
(b) If the license holder chooses to personally appear and an informal meeting is held,
the board’s staff and the board’s representatives are subject to the ex parte provisions
of Chapter 2001, Government Code, with regard to contacts with board members and
administrative law judges concerning the case.(I think that "Chapter 2001, Government
Code" has been supplanted with "Administrative Procedure Act"; however I cannot find
anything about ex parte provisions. This is important in my case because all three
members of the TMB's Disciplinary Panel listened to my 10 minute litany of Mari
Robinson's crimes on February 6, 2009)
-Greg Abbott, attorney general for Texas, SP knows him minimally; SP wants to get him
to review, give opinion, - Rene Umali 7/3/09 7:46 AM
§164.005. Initiation of Charges; Formal Complaint

(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.
This is analogous to a "probable cause affidavit" in criminal law. The fact that the analogy
is made might make it feasible to use "the rights of the accused in criminal prosecutions"
clause in the US Constitution: to be informed of the nature and cause of the accusation; to
be confronted with the witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his defence.
1) this formal complaint this is the "allegations" that is formallly sent to the doctor, 2)
assuming that it is analagous to a"probably cause affidavit", medical board actions are
still not under the jurisdiction of the criminal justice system but under the Texas APA,
so you need to know what the APA says is the "due process" for actions by the medical
board; in California the Cal APA clearly states that civil code of procedures does not apply!
The federal government has allowed free reign for states to deviate from civil rules of
procedure in administrative hearings. Why? -Rene Umali 7/16/09 7:08 AM
(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: This is what we need! TMB
should keep those affidavits on file and make them subject to review by the legislative
oversight committees
(1) is filed with the board’s records custodian or assistant records custodian; and I
want to see the affidavit and the complaint filed against me which precipitated my
license suspension; there wasn't one!
(2) details the nature of the charge as required by this subtitle or other applicable
law.There wasn't any charge!
(d) The board president or a designee shall ensure a copy of the charges is served on the
respondent or the respondent’s counsel of record.Please ask to see whatever they claim
is the "charge"
(e) The president or designee shall notify the State Office of Administrative Hearings
of a formal complaint.
(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.
(g) The board shall adopt rules to promote discovery by each party to a contested
case.
§164.006. Service of Notice

(a) Service of process to notify the respondent of a hearing about the charges against
the person must be served in accordance with Chapter 2001, Government Code.
(b) If service described by Subsection (a) is impossible or cannot be effected, the
board shall publish once a week for two successive weeks a notice of the hearing in a
newspaper published in the county of the last known place of practice in this state of
the person, if known.
(c) If the license holder is not currently practicing in this state as evidenced by
information in the board files, or if the last county of practice is unknown, the notice
shall be published in a newspaper in Travis County.
(d) If publication of notice is used, the date of hearing may not be earlier than the
th
10 day after the date of the last publication.
§164.007. Administrative Hearings; Confidentiality Issues

(a) The board by rule shall adopt procedures governing formal disposition of a
contested case under Chapter 2001, Government Code. A formal hearing shall be
conducted by an administrative law judge employed by the State Office of
Administrative Hearings. After receiving the administrative law judge’s findings of fact
and conclusions of law, the board shall determine the charges on the merits.
(b) Notwithstanding this subtitle or other law, the board may employ, retain, and
compensate:
(1) attorneys, consultants, and other professionals as necessary and appropriate
to serve as board consultants or special counsel to prosecute complaints filed with
the board on behalf of the hearings division and investigating division; and
(2) court reporters and other staff necessary to prepare for or represent the board
in the hearings authorized by this section.
(c) Each complaint, adverse report, investigation file, other investigation report, and
other investigative information in the possession of or received or gathered by the
board or its employees or agents relating to a license holder, an application for
license, or a criminal investigation or proceeding is privileged and confidential and is
not subject to discovery, subpoena, or other means of legal compulsion for release
to anyone other than the board or its employees or agents involved in discipline of
a license holder. For purposes of this subsection, investigative information includes
information relating to the identity of, and a report made by, a physician performing
or supervising compliance monitoring for the board.
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(d) Not later than the 30 day after the date of receipt of a written request from
a license holder who is the subject of a formal complaint initiated and filed under
Section 164.005 or from the license holder’s counsel of record, and subject to any
other privilege or restriction set forth by rule, statute, or legal precedent, and unless
good cause is shown for delay, the board shall provide the license holder with access
to all information in its possession that the board intends to offer into evidence in
presenting its case in chief at the contested hearing on the complaint. The board is
not required to provide:
(1) a board investigative report or memorandum;
(2) the identity of a nontestifying complainant; or
(3) attorney-client communications, attorney work product, or other materials
covered by a privilege recognized by the Texas Rules of Civil Procedure or the
Texas Rules of Evidence.
(e) Furnishing information under Subsection (d) does not constitute a waiver of
privilege or confidentiality under this subtitle or other applicable law.
(f) Investigative information in the possession of the board or an employee or agent
relating to discipline of a license holder may be disclosed to:
(1) the appropriate licensing authority of:
(A) another state; or
(B) a territory or country in which the license holder is licensed or has applied
for a license; or
(2) a medical peer review committee reviewing an application for privileges or the
qualifications of the license holder with respect to retaining privileges.
(g) If investigative information in the possession of the board or its employees or
agents indicates that a crime may have been committed, the board shall report the
information to the appropriate law enforcement agency.
(h) The board shall cooperate with and assist a law enforcement agency conducting
a criminal investigation of a license holder by providing information that is relevant
to the criminal investigation to the investigating agency. Information disclosed by the
board to an investigative agency remains confidential and may not be disclosed by the
investigating agency except as necessary to further the investigation.
§164.008. Right to Counsel

In a hearing involving a disciplinary action under this subtitle, the respondent is entitled
to appear personally, by counsel, or both.
§164.009. Judicial Review

A person whose license to practice medicine has been revoked or who is subject to other
disciplinary action by the board may appeal to a Travis County district court not later than
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the 30 day after the date the board decision is final.

A Portion of The Medical Practice Act Section

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particularly look at Sections 164.004 and 164.005.

§164.003. Informal Proceedings (I think the corresponding "formal" proceeding

§164.0035. Dismissal of Baseless Complaint

§164.004. Compliance With Due Process Requirements

type here -Rene Umali 7/3/09 7:39 AM

warrant the intended action; and

§164.005. Initiation of Charges; Formal Complaint

§164.006. Service of Notice

§164.007. Administrative Hearings; Confidentiality Issues

§164.008. Right to Counsel

§164.009. Judicial Review

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