Jorge R. Guevara, M.D. v. Texas Medical Board

ACCEPTED
15-25-00036-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
9/29/2025 11:34 AM
CASE NO. 15-25-00036-CV CHRISTOPHER A. PRINE
__________________________________________________________________ CLERK
FILED IN
15th COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE FIFTEENTH DISTRICT OF TEXAS AT AUSTIN
9/29/2025 11:34:23 AM
__________________________________________________________________
CHRISTOPHER A. PRINE
Clerk

JORGE R. GUEVARA, M.D.,
Appellant,

v.

TEXAS MEDICAL BOARD,
Appellee.

APPELLEE TEXAS MEDICAL BOARD’S BRIEF

KEN PAXTON KATHY JOHNSON
Attorney General of Texas State Bar No. 24126964
Assistant Attorney General
BRENT WEBSTER Ted A. Ross
First Assistant Attorney General Assistant Attorney General
State Bar No. 24008890
RALPH MOLINA Administrative Law Division
Deputy First Assistant Attorney Office of the Attorney General of Texas
General P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
AUSTIN KINGHORN Telephone: (512) 475-4164
Deputy Attorney General for Civil Facsimile: (512) 320-0167
Litigation kathy.johnson@oag.texas.gov
ted.ross@oag.texas.gov
ERNEST C. GARCIA
Chief, Administrative Law ATTORNEYS FOR APPELLEE
Division TEXAS MEDICAL BOARD

ORAL ARGUMENT NOT REQUESTED
TABLE OF CONTENTS

INDEX OF AUTHORITIES ..................................................................... 4

IDENTITY OF PARTIES & COUNSEL .................................................. 7

REFERENCES ......................................................................................... 8

STATEMENT REGARDING ORAL ARGUMENT .................................. 9

ISSUES PRESENTED ............................................................................ 10

STATEMENT OF FACTS ....................................................................... 11

SUMMARY OF THE ARGUMENT ....................................................... 14

STANDARD OF REVIEW ...................................................................... 15

ARGUMENT ........................................................................................... 18

I. The trial court correctly affirmed TMB’s Final Order,
finding that TMB did not exceed its statutory authority
in disciplining Dr. Guevara............................................................ 18

II. Substantial evidence supports the findings of violation
TMB found in its Final Order. ....................................................... 23

A. Dr. Guevara failed to ensure that MAB established
and maintained a quality assurance and control
program ................................................................................. 26

B. Dr. Guevara failed to ensure that MAB employed
qualified personnel to perform mammography
imaging .................................................................................. 28

C. Dr. Guevara failed to ensure that MAB provided
the results of the mammography reports to each of
his patients ............................................................................ 30

APPELLEE’S BRIEF Page 2 of 41
III. The trial court correctly affirmed TMB’s Final Order
because it was not arbitrary nor capricious when it
reached a reasonable result. .......................................................... 31

CONCLUSION ........................................................................................ 38

CERTIFICATE OF COMPLIANCE ........................................................ 40

CERTIFICATE OF SERVICE................................................................. 40

APPENDICES ......................................................................................... 41

APPELLEE’S BRIEF Page 3 of 41
INDEX OF AUTHORITIES

Cases
Aleman v. Tex. Med. Bd.,
573 S.W.3d 796 (Tex. 2019) ...................................................... 20, 21, 22

Anderson-Clayton Bros. Funeral Home, Inc. v. Strayhorn,
149 S.W.3d 166 (Tex. App.—Austin 2004, pet. denied) ................. 17, 18

Bd. of Law Exam’rs v. Stevens,
868 S.W.2d 773 (Tex. 1994) ...................................................... 16, 17, 35

City of El Paso v. Pub. Util. Comm’n,
883 S.W.2d 179 (Tex. 1994) .................................................................. 33

Lane v. Tex. Med. Bd.,
No. 03-21-00593-CV, 2023 WL 4214945 (Tex. App.—Austin
June 28, 2023, pet. denied) (mem. op.) ........................................... 21, 23

R.R. Comm’n v. Tex. Citizens for a Safe Future & Clean Water,
336 S.W.3d 619 (Tex. 2011) .................................................................. 17

Scally v. Tex. State Bd. of Med. Exam’rs,
351 S.W.3d 434 (Tex. App.—Austin, 2011) (pet. denied) ............... 15, 16

Sergeant Enter., Inc. v. Strayhorn,
112 S.W.3d 241 (Tex. App.—Austin 2003, no pet.) .............................. 17

State v. Pub. Util. Comm’n,
883 S.W.2d 190 (Tex. 1994) .................................................................. 16

Tex. State. Bd. of Med. Exam’rs v. Birenbaum,
891 S.W.2d 333 (Tex. App.—Austin 1995, writ denied) ...................... 17

Statutes
Tex. Gov’t Code
§ 2001.174 ............................................................................................. 15
§ 2001.174(2)(A) .................................................................................... 16

APPELLEE’S BRIEF Page 4 of 41
§ 2001.1721(a) ....................................................................................... 18
§ 2001.1721(b) ................................................................................. 18, 20

Tex. Health & Safety Code
§ 193.005(h) ........................................................................................... 20
§ 401.422(a) ........................................................................................... 24
§ 401.423(b) ........................................................................................... 24
§ 401.424(a)(3)....................................................................................... 24
§ 401.424(a)(4)(D).................................................................................. 24
§ 401.426 ............................................................................................... 24

Tex. Occ. Code
ch. 151 ................................................................................................... 15
§ 151.001(4) ........................................................................................... 33
§ 151.002(9) ........................................................................................... 21
§ 151.002(13) ................................................................................... 19, 21
§ 151.003 ............................................................................................... 33
§ 164.001 ............................................................................................... 34
§ 164.001(b)(3)....................................................................................... 34
§ 164.001(e) ........................................................................................... 34
§ 164.001(f) ............................................................................................ 34
§ 164.051-.054 ....................................................................................... 34
§ 164.051(a)(1)........................................................................... 18, 19, 37
§ 164.052(a)(5)........................................................................... 18, 19, 37
§ 164.053(a)(1)........................................................................... 18, 34, 37
§ 164.053(a)(8)................................................................................. 19, 37
§ 164.053(a)(9)................................................................................. 19, 37
§ 601.002(6)-(7) ..................................................................................... 25

Rules
22 Tex. Admin. Code
§ 190.14(1) ....................................................................................... 34, 35
§ 190.14(9) ....................................................................................... 35, 38
§ 190.15 ................................................................................................. 35
§ 190.15(a) ............................................................................................. 36

APPELLEE’S BRIEF Page 5 of 41
25 Tex. Admin. Code
§ 289 .................................................................................... 20, 24, 25, 26
§ 289.226(n)(2) .......................................................................... 20, 25, 38
§ 289.230 ............................................................................................... 25
§ 289.230(r)(2) ........................................................................... 19, 20, 28
§ 289.230(t)............................................................................................ 30
§ 289.230(t)(1) ....................................................................................... 30
§ 289.230(t)(2) ........................................................................... 19, 20, 30
§ 289.230(u) ........................................................................................... 26
§ 289.230(u)(1)(A).................................................................................. 26
§ 289.230(u)-(w) ........................................................................ 19, 20, 26
§ 289.230(v)(6) ....................................................................................... 27
§ 289.230(v)(7) ....................................................................................... 26
§ 289.230(v)(9)-(14) ............................................................................... 27
§ 289.230(w) .......................................................................................... 27
§ 289.234 ............................................................................................... 25

42 U.S.C. § 263b ...................................................................................... 24
42 U.S.C. § 263b(f) ................................................................................... 24
42 U.S.C. § 263b(m) ................................................................................. 24

Other
Senate Bill 14 .......................................................................................... 18

APPELLEE’S BRIEF Page 6 of 41
IDENTITY OF PARTIES & COUNSEL

Parties

Appellant Jorge R. Guevara, M.D.
Appellate Counsel:
Jason Davis
E-mail: jdavis@dslawpc.com
Hayley Ellison, Lead Counsel
E-mail: hellison@dslawpc.com
DAVIS & SANTOS, PLLC
719 S. Flores Street
San Antonio, Texas 78204
Tel.: (210) 853-5882

Trial Counsel:
John J. Rivas
Ethan Yat Fai Lau
RIVAS GOLDSTEIN, LLP

Appellee Texas Medical Board
Appellee’s Trial and Appellate Counsel:
Kathy Johnson
Assistant Attorney General
E-mail: Kathy.Johnson@oag.texas.gov
Ted Ross
Assistant Attorney Geenral
E-mail: Ted.Ross@oag.texas.gov
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548
Austin, Texas 78711
Tel.: (512) 475-4191

APPELLEE’S BRIEF Page 7 of 41
CITATION REFERENCES

Administrative Record
A.R. at [TMB ###] Administrative Record

C.R. [page #]

Tr. [Page #: Line #]: SOAH contested case hearing
transcript

Staff Ex. [#]: TMB Staff contested case hearing
exhibits

App. Tab [#] Appendix attached to this brief

OTHER REFERENCES

ALJs The SOAH Administrative Law Judges

Dr. Guevara: Appellant, Jorge Guevara, M.D.

Final Order The TMB Final Order entered August
18, 2023

PFD The Administrative Law Judge’s
Proposal for Decision signed on May 3,
2023

RSO Radiation Safety Officer

SOAH The State Office of Administrative
Hearings

TMB: Appellee, Texas Medical Board

APPELLEE’S BRIEF Page 8 of 41
STATEMENT REGARDING ORAL ARGUMENT

The TMB does not request oral argument in this appeal because the

factual issues are straightforward, and the legal issues have previously

been addressed by the courts. However, the TMB requests the

opportunity to participate if the Court sets oral argument.

APPELLEE’S BRIEF Page 9 of 41
ISSUES PRESENTED

1. Did the trial court err when it affirmed TMB’s Final Order

finding that the TMB acted within its statutory authority when it

disciplined Dr. Guevara?

2. Did the trial court err when it affirmed TMB’s Final Order

finding that it was supported by substantial evidence when Dr. Guevara’s

failures as a Radiation Safety Officer (RSO) were connected to his

practice of medicine?

3. Did the trial court err when it affirmed TMB’s Final Order

finding that TMB did not act arbitrarily or capriciously when it

disciplined Dr. Guevara by barring Dr. Guevara from being associated

with any imaging program, including owning, operating or acting as RSO

for any imaging program?

APPELLEE’S BRIEF Page 10 of 41
STATEMENT OF FACTS

Dr. Guevara served as the radiation safety officer for his practice,

Medical Associates of Brownsville (MAB). As the radiation safety officer

(RSO), Dr. Guevara had the responsibility to ensure that MAB personnel

in the radiology department complied with all regulations and received

adequate training. In January 2019, Department of State Health

Services (DSHS) conducted an investigation of MAB. The investigation

revealed that MAB had failed to establish and maintain a mammography

medical outcome program and failed to maintain a quality assurance

program. A.R. at TMB1215. MAB had also hired unqualified

mammography technicians, who had taken low quality mammography

images. DSHS reviewed a sample of MAB’s mammography images and

found that 100% of the films were of poor quality, did not meet the

standard of the accrediting body, and were of such poor quality that they

did not reveal whether or not the patient had breast cancer. A.R. at

TMB1216.

After completing its investigation, DSHS brought an enforcement

action against MAB at SOAH. 1 DSHS’s enforcement action against MAB

1 SOAH Docket Number XXX-XX-XXXX.

APPELLEE’S BRIEF Page 11 of 41
is not under judicial review in this case. As a result of its investigation,

DSHS also referred Dr. Guevara, a licensed medical doctor, to the TMB

for disciplinary action. The TMB pursued disciplinary action against Dr.

Guevara by filing a contested case at SOAH. A.R. at TMB1.

SOAH held a hearing on the merits on December 12, 2022. The

Administrative Law Judge (ALJ) issued a Proposal for Decision (PFD) on

May 3, 2023. A.R. at TMB1146-1174. After both parties filed exceptions

and replies to certain findings of fact (FOF), the ALJ adopted all of the

TMB’s exceptions on June 6, 2023. A.R. at TMB1170-73. The TMB then

considered the ALJ’s Proposal for Decision and exceptions letter; TMB

adopted all of the ALJ’s FOFs and conclusions of law (COLs) as identified

in the PFD and exceptions letter. The TMB ultimately issued its Final

Order in SOAH Docket Number XXX-XX-XXXX on August 18, 2023. A.R. at

TMB1213-25.

The TMB Final Order states that Dr. Guevara:

1) shall not own, operate, act as radiation safety officer for,
act as medical director for, or otherwise be associated with
any imaging program including a program that performs
mammography, and any facility where imaging studies,
including but not limited to mammograms are performed
or interpreted;

2) shall not perform any imaging services;

APPELLEE’S BRIEF Page 12 of 41
3) shall not supervise or delegate to any healthcare personnel
engaged in the performance of imaging studies.

A.R. at TMB1220-21.

Dr. Guevara sought judicial review by filing Plaintiff’s Original

Petition, Ex Parte Application for Temporary Restraining Order and

Temporary Injunction, and Request for Disclosure on October 12, 2023.

The trial court issued a Temporary Restraining Order regarding the TMB

Final Order. A Temporary Injunction Hearing took place on November

14, 2023. The Court denied Dr. Guevara’s request for a Temporary

Injunction on November 17, 2023. On December 6, 2023, Dr. Guevara

perfected an interlocutory appeal of the court’s Order Denying Plaintiff’s

Application for Temporary Injunction. Subsequently, Dr. Guevara

dismissed his appeal on January 8, 2024.

A hearing on the merits took place at the trial court on November

13, 2024. C.R. 379. Judge Connor signed the final judgment of the trial

court on December 30, 2024, finding that TMB’s Final Order was

supported by substantial evidence and that TMB acted within its

statutory authority. C.R. 380. Dr. Guevara requested FOFs and COLs

APPELLEE’S BRIEF Page 13 of 41
from the trial court, which Judge Thomas 2 denied. C.R. 381-384. Dr.

Guevara filed a motion for new trial, which was overruled by operation

of law. C.R. 385-390. Dr. Guevara then filed an appeal before this Court.

C.R. 392-393.

SUMMARY OF THE ARGUMENT

The Court should affirm the trial court’s final judgment affirming

TMB’s Final Order. TMB acted within its statutory authority when it

disciplined Dr. Guevara by preventing him from being associated with

any imaging program. Dr. Guevara’s failures as an RSO were connected

to his practice of medicine and were likely to deceive or defraud the public

because his dual role of physician and RSO implied to his patients that

their mammography results were accurate. Substantial evidence

supports TMB’s discipline of Dr. Guevara. He failed to ensure that MAB

1) established a quality assurance program; 2) hired qualified radiology

techs; and 3) timely provided communication to mammography patients.

Despite these failures, Dr. Guevara repeatedly referred his patients to

MAB’s mammography facility. Finally, TMB’s Final Order is not

2Judge Thomas replaced Judge Connor in the 353rd Judicial District of Travis
County while this case was still pending before the trial court.

APPELLEE’S BRIEF Page 14 of 41
arbitrary or capricious because it was tailored to address the risk that

Dr. Guevara poses to patients receiving imaging. TMB considered the

factors the legislature instructed it to consider, did not consider

irrelevant factors, and it reached a reasonable result. TMB employed its

disciplinary matrix to discipline Dr. Guevara, determining that he should

not be associated with any imaging service due to the risk he posed to

patients and due to aggravating factors. For all of these reasons, TMB

respectfully requests the Court to affirm the judgment below.

STANDARD OF REVIEW

The focus of the substantial evidence review is TMB’s Final Order.

Scally v. Tex. State Bd. of Med. Exam’rs, 351 S.W.3d 434, 441 (Tex.

App.—Austin, 2011, pet. denied); see Tex. Occ. Code ch. 151. Under the

substantial evidence standard of review, a court may affirm an agency

decision in whole or in part. Tex. Gov’t Code § 2001.174. The APA

provides that an agency decision may be reversed or remanded for further

proceedings:

[I]f substantial rights of the appellant have been prejudiced
because the administrative findings, inferences, conclusions,
or decisions are:

(A) in violation of a constitutional or statutory
provision;

APPELLEE’S BRIEF Page 15 of 41
(B) in excess of the agency’s statutory authority;
(C) made through unlawful procedure;
(D) affected by other error of law;
(E) not reasonably supported by substantial evidence
considering the reliable and probative evidence in the
record as a whole; or
(F) arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.

Tex. Gov’t Code § 2001.174(2)(A). In reviewing TMB’s Final Order, it is

presumed that the order is supported by substantial evidence, and the

Appellant bears the burden to prove otherwise. Scally, 351 S.W.3d at 441.

When applying the substantial evidence standard of review to the

agency’s decision, the reviewing court is prohibited from substituting its

own judgment for that of the agency as to the weight of the evidence on

questions committed to agency discretion. Bd. of Law Exam’rs v. Stevens,

868 S.W.2d 773, 778 (Tex. 1994). The test for review of an agency action

is not whether the agency reached the correct conclusion, but whether

some reasonable basis for the agency’s action exists in the record. State

v. Pub. Util. Comm’n, 883 S.W.2d 190, 204 (Tex. 1994). Texas courts have

stated that although substantial evidence is more than a mere scintilla,

the evidence may actually preponderate against the agency decision and

yet still amount to substantial evidence supporting the result reached by

the agency. Id. at 204. If reasonable minds could have reached the

APPELLEE’S BRIEF Page 16 of 41
conclusion that TMB reached on the record presented, then a court

undertaking review should uphold the TMB Final Order. Stevens, 868

S.W.2d at 778; Tex. State. Bd. of Med. Exam’rs v. Birenbaum, 891 S.W.2d

333, 337 (Tex. App.—Austin, 1995, writ denied).

In reviewing questions of statutory construction, the courts give

“serious consideration” to an agency’s interpretation of a statute that it

is charged with enforcing. R.R. Comm’n v. Tex. Citizens for a Safe Future

& Clean Water, 336 S.W.3d 619, 625 (Tex. 2011). “In ascertaining the

scope of an agency’s authority, a reviewing court gives great weight to

the contemporaneous construction of a statute by the administrative

agency charged with its enforcement and recognizes that the legislature

intends an agency created to centralize expertise in a certain regulatory

area ‘be given a large degree of latitude in the methods it uses to

accomplish its regulatory function.’” Sergeant Enter., Inc. v. Strayhorn,

112 S.W.3d 241, 246 (Tex. App.—Austin 2003, no pet.). “If the agency’s

interpretation is consistent with the language and the purposes of the

statute, the court will accept it, even if other reasonable interpretations

exist.” Anderson-Clayton Bros. Funeral Home, Inc. v. Strayhorn, 149

APPELLEE’S BRIEF Page 17 of 41
S.W.3d 166, 178 (Tex. App.—Austin 2004, pet. denied). 3

The application of these standards mandates affirmance of the trial

court’s judgment and the TMB Final Order.

ARGUMENT

I. The trial court correctly affirmed TMB’s Final Order,
finding that TMB did not exceed its statutory authority in
disciplining Dr. Guevara.

Dr. Guevara argues that TMB exceeded its statutory authority in

disciplining Dr. Guevara (Appellant’s Br. at 19-26), but this argument

fails. TMB acted within its statutory authority when it disciplined Dr.

Guevara by preventing him from being associated with any imaging

practice because he engaged in unprofessional conduct in connection to

his practice of medicine that was likely to deceive and defraud the public.

Tex. Occ. Code §§ 164.051(a)(1), .052(a)(5), .053(a)(1); A.R. at TMB1220.

3 Senate Bill 14, signed into law on April 25, 2025, and codified in Title A, Subchapter

G of the Government Code, amended the Administrative Procedure Act (APA) to
explicitly state that Texas courts are not required to give deference to a state agency’s
legal determination regarding the construction, validity, or applicability of the law or
a rule. Tex. Gov’t Code § 2001.1721(a) (emphasis added). However, Courts are not
prohibited from giving consideration to a state agency’s legal determination that is
reasonable and does not conflict with the plain language of the statute. Tex. Gov’t
Code § 2001.1721(b). Moreover, Senate Bill 14 does not change the well-settled
standard of review of an agency’s determination of the weight of the evidence, as well
as other presumptions in favor of an agency’s decision, in substantial evidence
appeals under the APA.

APPELLEE’S BRIEF Page 18 of 41
Dr. Guevara engaged in such conduct by failing, as MAB’s RSO, to ensure

that MAB 1) instituted a quality-assurance-and-control program; 2) hired

qualified techs, and 3) timely provided communication to mammography

patients. See 25 Tex. Admin. Code § 289.230(u)-(w), (r)(2), (t)(2). Dr.

Guevara also engaged in such conduct when he failed to adequately

supervise the activities of his employees. Tex. Occ. Code §§ 164.051(a)(1),

.052(a)(5), .053(a)(8); A.R. at TMB1220. Furthermore, Dr. Guevara

engaged in unprofessional conduct that was likely to deceive or defraud

the public when he delegated professional medical responsibility to a

person he knew or had reason to know was unqualified. Tex. Occ. Code

§§ 164.051(a)(1), .052(a)(5), .053(a)(9); A.R. at TMB1220.

The Medical Practice Act defines the practice of medicine as “the

diagnosis, treatment, or offer to treat a mental or physical disease or

disorder or a physical deformity or injury by any system or method, or

the attempt to effect cures of those conditions, by a person who: a)

publicly professes to be a physician or surgeon.” Tex. Occ. Code §

151.002(13).

While Dr. Guevara argues that his conduct as an RSO was not

connected to his practice of medicine (Appellant’s Br. at 25), TMB

APPELLEE’S BRIEF Page 19 of 41
correctly determined that Dr. Guevara’s failure as an RSO is connected

to his practice of medicine. Dr. Guevara’s responsibilities as an RSO and

physician overlapped. RSOs are required to “ensure that personnel are

adequately trained and complying with” the regulatory requirements in

25 Texas Administrative Code Chapter 289. 25 Tex. Admin. Code §

289.226(n)(2). Those requirements include ensuring that MAB instituted

a quality-assurance-and-control program, employed qualified techs, and

sent out timely communications to patients. 25 Tex. Admin. Code §

289.230(u)-(w), (r)(2), (t)(2). The Court need not defer to TMB’s legal

interpretation, but the Court may still give TMB’s interpretation due

consideration. Tex. Gov’t Code § 2001.1721(b).

In Aleman, the court held that a “violat[ion] of state or federal law

is subject to disciplinary action by the [TMB] under the Medical Practice

Act only if the act is connected with the practice of medicine in a manner

that makes it likely to deceive or defraud the public.” Aleman v. Tex. Med.

Bd., 573 S.W.3d 796, 804 (Tex. 2019) (emphasis added). When TMB

sought to discipline Dr. Aleman for manually, instead of electronically,

certifying a death certificate, in violation of the law4, the court found that

4 Texas Health and Safety Code 193.005(h) required physicians to electronically

APPELLEE’S BRIEF Page 20 of 41
this action, which did not involve the entry of inaccurate information,

was not connected to his practice of medicine. Id. at 799, 805.

Significantly, however, Aleman noted that administrative tasks that are

likely to deceive or defraud the public, such as providing inaccurate

information on a death certificate, do rise to the level of activity connected

to the practice of medicine. Id. at 808

In Lane, an unreported Third Court of Appeals opinion, that court

further elaborated upon the rule stated in Aleman. Lane v. Tex. Med. Bd.,

No. 03-21-00593-CV, 2023 WL 4214954, *8 (Tex. App.—Austin June 28,

2023, pet. denied). The court held that TMB did not err in concluding that

Dr. Lane’s conduct was connected to the practice of medicine when he

failed to timely provide requested medical records. Lane, 2023 WL

4214954 at *8. The court found that failing to timely provide medical

records was connected to the practice of medicine because it related to

the treatment of the patient. Id. (citing Tex. Occ Code § 151.002(9), (13)).

The court also found that failing to timely provide the records may

deceive or defraud the public by leading to improper treatment. Id.

Dr. Guevara’s failure to fulfill his duties as RSO is not merely an

certify a death certificate.

APPELLEE’S BRIEF Page 21 of 41
administrative oversight as was Dr. Aleman’s failure to electronically

certify a death certificate. Manually signing a death certificate does not

cause harm to patients. However, Dr. Guevara’s failure as RSO to ensure

that MAB followed the regulations for mammography providers likely

harmed his patients. In Aleman, the court noted that providing

inaccurate information on a death certificate would deceive and defraud

the public. Aleman, 573 S.W.3d at 808. In this case, Dr. Guevara

impliedly represented to his patients that MAB provided accurate

mammography services by referring his own family-practice patients to

MAB’s mammography facility. But, without a quality-assurance-and-

control program, qualified techs, or timely follow-up on results, MAB

could not have provided accurate mammography services. See A.R. at

TMB1216.

Dr. Guevara referred 90-99% of the patients who used MAB’s

mammography facility. A.R. Staff Ex. 42 at TMB1871 (84:04-84:06). Due

to his position of authority as his patients’ physician, his ownership of

MAB, and his duty as RSO to ensure regulatory compliance, Dr. Guevara

impliedly assured his patients of the reliability of MAB’s imaging

services, even though he knew or was in a position to know otherwise.

APPELLEE’S BRIEF Page 22 of 41
Similar to Lane, Dr. Guevara did not provide his patients with critical

treatment information.

While Dr. Lane did not send the requested patient records, Dr.

Guevara inaccurately represented the reliability of MAB’s

mammography facility to his patients by referring them to the facility

without ensuring that the facility had a quality-assurance-and-control

program, qualified techs, or timely communication. See Tr. 34:09-34.16;

82:12-83.01; A.R. at TMB 2031, 2034-35, 2055, Staff Ex. 44. This behavior

presented a risk to patients because Dr. Guevara, or another physician,

may have relied upon MAB’s imaging even though it was of such poor

quality that the images could not rule out breast cancer. A.R. at

TMB1216. This is exactly the type of administrative action that Lane

declared is connected to the practice of medicine—actions that threaten

the misdiagnosis or mistreatment of a patient. Lane v. Tex. Med. Bd., No.

03-21-00593-CV, 2023 WL 4214945, *8 (Tex. App.—Austin June 28,

2023, pet. denied). Dr. Guevara’s actions were likely to deceive and

defraud the public.

II. Substantial evidence supports the findings of violation TMB
found in its Final Order.

The federal law known as the Mammography Quality Standards

APPELLEE’S BRIEF Page 23 of 41
Act establishes national requirements for the certification of

mammography providers. 42 U.S.C. § 263b. It requires facilities to meet

certain quality standards, including standards requiring a facility to 1)

establish and maintain a quality-assurance-and-control program; 2) to

employ personnel who meet requirements to perform mammography;

and 3) to provide a written report of the results of any mammography

examination to each patient. 42 U.S.C. § 263b(f). The Mammography

Quality Standards Act does not limit the authority of any state to enact

and enforce laws related to mammography that are at least as stringent

as the federal law. 42 U.S.C. § 263b(m).

In Texas, DSHS enforces the Mammography Quality Standards

Act. Tex. Health & Safety Code § 401.423(b). To perform mammography

in Texas, a person must apply for certification and use a certified

mammography system. Tex. Health & Safety Code §§ 401.422(a), .426.

The mammography system must meet certain requirements, including

that it be operated by a certified medical radiologic technologist and be

used at a facility that has a quality control program. Tex. Health & Safety

Code § 401.424(a)(3), (4)(D). DSHS promulgated further requirements for

providing mammography services in its rules. 25 Tex. Admin. Code § 289.

APPELLEE’S BRIEF Page 24 of 41
Though Dr. Guevara argues that an RSO is merely a technical role

that concerns the use, handling, and storage of radioactive materials

(Appellant’s Br. at 25), as MAB’s RSO, Dr. Guevara had a duty to ensure

MAB’s regulatory compliance. He had the duty to “ensure that personnel

are adequately trained and complying with” the regulatory requirements

in 25 Texas Administrative Code Chapter 289. 25 Tex. Admin. Code §

289.226(n)(2) (emphasis added). Chapter 289 delineates radiation control

requirements in facilities, including the certification of mammography

systems and mammography accreditation. 25 Tex. Admin. Code §§

289.230, .234. Chapter 289 specifically requires that mammography

facilities establish and maintain a quality assurance program, employ

qualified personnel, and provide written communication to patients

about their results. In addition to failing to ensure compliance with

Chapter 289, Dr. Guevara failed to ensure that a licensed physician

supervised MAB’s techs, as required by statute. Tex. Occ. Code §

601.002(6)-(7). Dr. Guevara argues that substantial evidence does not

support TMB’s finding that he failed to practice in an acceptable manner,

(Appellant’s Br. at 30-33), but the record shows otherwise, as detailed in

the following subsections. Staff Ex. 42 at TMB1851; Tr. 34:09-34.16;

APPELLEE’S BRIEF Page 25 of 41
82:12-83.01; Staff Ex. 44 at TMB2031, 2034-35, 2055.

A. Dr. Guevara failed to ensure that MAB established and
maintained a quality assurance and control program.

As MAB’s RSO, Dr. Guevara should have ensured that MAB’s

imaging facility established and maintained a quality-assurance-and-

control program. 25 Tex. Admin. Code § 289.230(u)-(w). Every

mammography facility must “establish and maintain a written quality

assurance program to ensure the safety, reliability, clarity, and accuracy

of mammography services performed at the mammography facility,

including corrective actions to be taken if images are of poor quality.” 25

Tex. Admin. Code § 289.230(u). Chapter 289 provides detailed

requirements for a quality-assurance-and-control program.

Responsibility for the quality assurance program must be assigned

to qualified individuals, including a lead interpreting physician. 25 Tex.

Admin. Code § 289.230(u)(1)(A). The lead interpreting physician must

ensure that the quality-assurance-and-control program substantially

complies with the manufacturer’s recommendations for the image

receptor. 5 25 Tex. Admin. Code § 289.230(v)(7). A corrective action plan

5 This applies as long as the system uses an image receptor modality other than

screen film.

APPELLEE’S BRIEF Page 26 of 41
for failed quality assurance tests must also be enacted. Further, as part

of the quality-assurance-and-control program, radiology facilities must

undergo an annual survey by a medical physicist, evaluate new

equipment, and establish protocols to keep the facility clean (in addition

to other measures). 25 Tex. Admin. Code § 289.230(v)(6), (9)-(14). A

quality-assurance-and-control program must also establish an annual

mammography medical outcomes audit to follow-up on positive

mammographic assessments. 25 Tex. Admin. Code § 289.230(w).

Substantial evidence in this case demonstrates that Dr. Guevara

did not ensure that Dr. Kapilivsky, MAB’s lead interpreting physician,

instituted and maintained a quality-assurance-and-control program. Dr.

Kapilivsky was unaware that he needed to establish and maintain a

quality assurance program. Tr. 82:17-83:01. No evidence exists to

demonstrate that Dr. Guevara ever informed Dr. Kapilivsky that he

would need to create and maintain a quality assurance program, even

after he became aware that such a program was not in place. Dr.

Kapilivsky testified that Dr. Guevara never even discussed a quality

assurance program with him. Tr. 34:09-34:16; 82:12-83:01. Dr.

Kapilivsky believed that his duties only entailed reviewing images taken

APPELLEE’S BRIEF Page 27 of 41
by MAB’s radiology techs and providing written reports. Tr. 32:11-32:13,

69:06-69:13, 82:17-83:01.

Due to Dr. Guevara’s failure as an RSO, MAB did not maintain a

written quality assurance program or perform quality control tests as

recommended by the manufacturer. Staff Ex. 44 at TMB2047-48, 2055.

Additionally, because no quality assurance program existed, Dr.

Kapilivsky did not review and document quality control test results. Staff

Ex. 44 at TMB2047-48, 2055. The failure to establish a quality assurance

program means that Dr. Guevara’s patients unknowingly relied on

unreliable imaging.

B. Dr. Guevara failed to ensure that MAB employed
qualified personnel to perform mammography
imaging.

As MAB’s RSO, Dr. Guevara had the duty to ensure that MAB

employed certified medical radiologic technologists qualified to perform

mammography. 25 Tex. Admin. Code § 289.230(r)(2). Substantial

evidence demonstrates that Dr. Guevara did not ensure that MAB

employed qualified personnel to perform mammography.

MAB hired Sergio Lugo to work as a mammogram tech from

November 2018 to January 2019. A.R. at TMB1215. Sergio Lugo’s

APPELLEE’S BRIEF Page 28 of 41
mammography license had been revoked in 2010, and that sanction

remained in place until 2018. Staff Ex. 44 at TMB2031, 2054-55. The

license could not be reactivated without a test, which Sergio Lugo took

on December 18, 2018, but at no time during Sergio Lugo’s tenure did he

have a license or any other qualification to perform mammography. Id.

As MAB’s RSO and owner, Dr. Guevara could have independently

verified Sergio Lugo’s qualifications, but he did not. Staff. Ex. 42 at

TMB1844-45, 57:20-58:06. Instead, he placed the blame on his office

manager for hiring Sergio Lugo. Id. When the office manager discussed

Sergio Lugo’s lack of qualifications, Dr. Guevara ignored the information

and ordered Sergio Lugo to continue to perform mammograms. Staff Ex.

44 at TMB2031.

When DSHS conducted its investigation of the mammography

imaging, it found that all 27 sampled images taken by Sergio Lugo failed

to meet the standards of the American College of Radiology. A.R. at

TMB1216. All 30 of the images sampled by DSHS6 were of such poor

quality that the images did not reveal whether or not the patient had

6 DSHS sampled a total of 30 images. Twenty-seven were taken by Sergio Lugo, and

three were taken by Nancy Soto.

APPELLEE’S BRIEF Page 29 of 41
breast cancer. A.R. at TMB1216. Sergio Lugo’s images largely fell below

mammography standards because he incorrectly positioned the patient’s

breast, so that the machine could not capture an image of the whole

breast, meaning cancer could be missed. Staff Ex. 44 at TMB2039, 2056.

Even though MAB created substandard images, MAB relied on these

images in many cases. A.R. at TMB 1216.

C. Dr. Guevara failed to ensure that MAB provided the
results of the mammography reports to each of his
patients.

As MAB’s RSO, Dr. Guevara had the duty to ensure that MAB

created mammography reports and communicated results to patients

and their health care providers. 25 Tex. Admin. Code § 289.230(t). A

mammography facility is required to communicate the results of a

mammography exam within 30 days of the exam. 25 Tex. Admin. Code §

289.230(t)(2). The written report of results must include a final

assessment of findings and recommendations of further action to be

taken by the referring physician. 25 Tex. Admin. Code § 289.230(t)(1).

Substantial evidence demonstrates that Dr. Guevara failed to

ensure that MAB provided written communication to its patients about

their mammography exams within 30 days. During the DSHS inspection,

APPELLEE’S BRIEF Page 30 of 41
MAB could not confirm if it had sent out letters to its patients regarding

their mammography exams within the required 30 days. Staff Ex. 44 at

TMB2034-35, 2055. At first, the facility could not find any letters, and

then when it found some letters, it couldn’t determine if the letters had

ever been sent out. Staff Ex. 44 at TMB2034-35, 2055.

By failing to ensure that MAB provided written communication to

mammography patients, Dr. Guevara’s patients would have likely

believed that their results indicated the absence of disease. But MAB

likely failed to send out communications to mammography patients due

to disorganization rather than to affirm that the patient did not have

cancer. See Id. Therefore, Dr. Guevara’s patients’ reliance upon MAB’s

non-communication would be misplaced due to MAB’s disorganization.

Without timely discussion of mammogram results, more detailed

diagnostics such as 3D ultrasounds may not be pursued, and cancers may

grow unchecked, resulting in potentially catastrophic consequences for

Dr. Guevara’s patients.

III. The trial court correctly affirmed TMB’s Final Order
because it was not arbitrary or capricious when it reached
a reasonable result.

Finally, Dr. Guevara argues that TMB’s Final Order imposes

APPELLEE’S BRIEF Page 31 of 41
unreasonable, arbitrary, and capricious disciplinary actions (Appellant’s

Br. at 33-35). TMB’s Final Order prevents Dr. Guevara from being

associated with any imaging service, including owning, operating, or

acting as an RSO for any imaging service. A.R. at TMB1213-1226. TMB’s

disciplinary measures are not arbitrary or capricious because they are

tailored to prevent a high risk to public health. Dr. Guevara’s gross

disregard for complying with Chapter 289 (Supra, section II), in

conjunction with previous discipline from TMB (A.R. at TMB1335-41,

1349-55, Staff Ex. 36) and denial of all responsibility in this case (A.R. at

TMB1218) indicates that Dr. Guevara poses a risk to patient health when

being associated with imaging services.

Dr. Guevara referred patients to MAB’s radiology service when he

knew that he had not fulfilled his duties as an RSO to ensure that the

interpreting physician instituted a quality assurance program. As the

owner of MAB, he should have known that he employed unqualified

radiology techs. Dr. Guevara argues that his failings as an RSO are not

connected to his practice of medicine. Appellant’s Br. at 24-29. TMB

disagrees. Dr. Guevara’s failings as an RSO are directly connected to his

practice of medicine because he referred patients to the MAB’s imaging

APPELLEE’S BRIEF Page 32 of 41
facility—a facility Dr. Guevara controlled as owner and RSO. Dr.

Guevara was in the best position to know that his company’s radiology

services provided substandard imaging to his patients. The TMB

correctly determined that Dr. Guevara could not be trusted to partner

with his patients to direct the scope of the patients’ future health

interventions in the field of imaging because he put his economic

interests before the health of his patients.

Accordingly, the TMB’s Final Order was reasonable in scope and

was not arbitrary or capricious. An agency's decision is not arbitrary or

capricious when an agency considers all factors the legislature directs it

to consider; does not consider irrelevant factors; and reaches a reasonable

result after weighing relevant factors. City of El Paso v. Pub. Util.

Comm’n, 883 S.W.2d 179 (Tex. 1994).

TMB followed the legislature’s directives to discipline Dr. Guevara.

The legislature has authorized TMB to regulate and discipline

physicians. Tex. Occ. Code §§ 151.003, 153.001(4). The legislature has

also directed TMB to take action against physicians who engage in

unprofessional conduct that is likely to deceive or defraud the public

when a physician “commits an act that violates any state or federal law”

APPELLEE’S BRIEF Page 33 of 41
in connection with his practice of medicine. Tex. Occ. Code §

164.053(a)(1). The legislature has further directed TMB to institute a

disciplinary matrix to outline factors for TMB to consider during its

determination of disciplinary action. Tex. Occ. Code § 164.001(f).

TMB is required to take disciplinary action against a licensed

physician who violates a state or federal law, including the Medical

Practice Act and DSHS radiation rules. Tex. Occ. Code § 164.001. Once

TMB determines that a physician has committed an act described in

Sections 164.051—164.054 of the Texas Medical Practice Act, then TMB

shall “suspend, limit, or restrict the person’s license or other

authorization to practice medicine, including: a) limiting the practice of

the person to or excluding one or more specified activities of medicine; or

b) stipulating periodic board review.” Tex. Occ. Code § 164.001(b)(3).

When TMB imposes a sanction as a result of a hearing before

SOAH, TMB must follow its schedule of sanctions. Tex. Occ. Code §

164.001(e). The disciplinary sanction guidelines promote consistent

sanctions for similar violations, but the guidelines also leave discretion

for TMB to choose the appropriate sanction. 22 Tex. Admin. Code §

190.14(1); App. Tab A. The guidelines propose both low and high

APPELLEE’S BRIEF Page 34 of 41
sanctions from which TMB may choose. 22 Tex. Admin. Code § 190.14(1);

App. Tab A. Ultimately, the choice of the sanction lies with the agency.

As long as the Court finds that TMB did not act arbitrarily or

capriciously, then the Court must uphold the sanction, rather than

reweighing the evidence to determine if the Court would choose the same

sanction. See Stevens, 868 S.W.2d at 777-78.

Under TMB’s disciplinary matrix, when a physician falls below the

standard of care, by violating a law, for more than one patient, and the

physician had prior standard of care violations, then TMB may sanction

the physician. 22 Tex. Admin. Code § 190.14(9); App. Tab A at 18. TMB’s

disciplinary matrix includes the potential low sanction of restricting the

physician’s practice. 22 Tex. Admin. Code § 190.14(9); App. Tab A at 20.

TMB’s disciplinary matrix also includes the potential high sanction of

suspending or revoking the physician’s license. 22 Tex. Admin. Code §

190.14(9); App. Tab A at 20.

TMB’s rules also allow the board to consider aggravating factors

that warrant a more severe or restrictive disciplinary action. 22 Tex.

Admin. Code § 190.15. Aggravating factors may include 1) the increased

potential for harm to the public; 2) previous discipline by TMB; and 3)

APPELLEE’S BRIEF Page 35 of 41
other relevant circumstances increasing the severity of the misconduct.

22 Tex. Admin. Code § 190.15(a). TMB found that Dr. Guevara committed

three aggravating factors.

First, TMB found that Dr. Guevara’s imaging practice increased the

potential for harm to the public. One hundred percent of the

mammography images reviewed by DSHS fell below the American

College of Radiology’s standard. A.R. at TMB1216. Therefore, allowing

Dr. Guevara to continue to operate an imaging practice when he had

notice of MAB’s mammography facility’s inadequacy but chose to do

nothing, would put the public at risk. Secondly, the TMB noted that Dr.

Guevara has previously faced two separate disciplinary actions by TMB.

Dr. Guevara entered into an Agreed Order in 2010 regarding inadequate

medical records. Staff Ex. 36 at TMB1335-41. TMB also adopted an

Agreed Order in 2012, which disciplined Dr. Guevara after he failed to

document a plan to follow up on an abnormal X-ray and that patient later

received a Stage IV Cancer diagnosis. Staff Ex. 36 at TMB1349-55.

Finally, TMB determined that Dr. Guevara continuously minimized his

responsibility for the poor performance of MAB’s radiology facility and

did not accept responsibility for hiring unqualified personnel. A.R. at

APPELLEE’S BRIEF Page 36 of 41
TMB1218, 1220. TMB considered this to be a relevant ‘other’ factor that

would increase the severity of Dr. Guevara’s misconduct.

TMB acted reasonably instead of arbitrarily and capriciously when

it limited Dr. Guevara’s practice by restricting him from

owning/operating or otherwise being associated with an imaging practice.

Dr. Guevara engaged in unprofessional conduct in connection to his

practice of medicine that was likely to deceive and defraud the public. See

Supra, section I; Tex. Occ. Code §§ 164.051(a)(1), .052(a)(5), .053(a)(1),

.053(a)(8), .053(a)(9); A.R. at TMB1220. Therefore, TMB determined that

merely preventing Dr. Guevara from being associated with

mammography, performing mammography, and supervising or

delegating mammography would not be enough to protect his patients

and the public. A.R. at TMB1220.

Instead, TMB issued its Final Order, which prevents Dr. Guevara

from being associated with any imaging service, including, performing

imaging services and supervising or delegating imaging services. A.R. at

TMB1221. In weighing the evidence, the TMB found this broader ban

was necessary to prevent risk to the public because Dr. Guevara fell

below the standard of care for multiple patients by referring them to

APPELLEE’S BRIEF Page 37 of 41
MAB’s substandard mammography facility when he had the

responsibility to ensure that it had a quality assurance program in place.

See 22 Tex. Admin. Code § 190.14(9); App. Tab A at 18-20; 25 Tex. Admin.

Code § 289.226(n)(2).

The TMB had the authority to revoke Dr. Guevara’s license entirely

but instead chose to restrict his practice to non-imaging services. Because

TMB had the discretion to choose this sanction and only considered

relevant factors in the determination of its sanction, TMB’s Final Order

is neither arbitrary, nor capricious, nor an abuse of discretion.

CONCLUSION

Appellee TMB respectfully requests the Court affirm the trial

court’s final judgment and the TMB’s Final Order in all respects. TMB

further requests such other and further relief as the Court may deem

just.

APPELLEE’S BRIEF Page 38 of 41
Respectfully submitted,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

RALPH MOLINA
Deputy First Assistant Attorney
General

AUSTIN KINGHORN
Deputy Attorney General for Civil
Litigation

ERNEST C. GARCIA
Chief, Administrative Law Division

/s/ Kathy Johnson
KATHY JOHNSON
Assistant Attorney General
Texas State Bar No. 24126964
TED A. ROSS
Assistant Attorney General
Texas State Bar No. 24008890

Office of the Attorney General
Administrative Law Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-4164
Facsimile: (512) 320-0167
kathy.johnson@oag.texas.gov
ted.ross@oag.texas.gov

ATTORNEYS FOR APPELLEE
TEXAS MEDICAL BOARD

APPELLEE’S BRIEF Page 39 of 41
CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i) and

relying on the word count function in the word processing software used

to produce this document, I certify that the number of words in this

document is 5,449, excluding those portions exempted by Rule 9.4(i)(1).

/s/Kathy Johnson
Kathy Johnson
ASSISTANT ATTORNEY GENERAL

CERTIFICATE OF SERVICE

I hereby certify that on September 29, 2025, a true and correct copy

of the above and foregoing document was sent to the following attorneys

in charge via electronic service and/or electronic mail:

Hayley Ellison
Davis & Santos, PLLC
719 S. Flores St.
San Antonio, TX 78204
P: 210-853-5882
hellison@dslawpc.com

ATTORNEY FOR APPELLANT

/s/Kathy Johnson
Kathy Johnson
ASSISTANT ATTORNEY GENERAL

APPELLEE’S BRIEF Page 40 of 41
APPENDICES

Tab A - TMB Disciplinary Matrix

APPELLEE’S BRIEF Page 41 of 41
APPENDIX
A
Figure: 22 TAC §190.14(9)

Violation Statutory/Rule Citation Low Sanction High Sanction
Description
Abusive or §164.052(a)(5) Remedial Plan: Agreed Order with
Disruptive (unprofessional conduct Anger IME or Public
Behavior likely to injure public); management Referral to PHP;
Rule §190.8(2)(K), (P) and CME in medical
communications ethics, anger
CME, JP exam, management,
medical ethics communications
with colleagues,
JP exam.
For multiple orders
or egregious
actions-
-interfering with
patient care:
public
reprimand,
suspension with
terms and
conditions
Aiding in §164.052(a)(17) (directly Remedial Plan: Agreed Order:
unlicensed or indirectly aids or abets Directed CME in Public
practice unlicensed practice) supervision or reprimand, all
delegation if sanctions in low
applicable; 8 hours category, plus
CME in medical $2,000 admin
ethics, 8 hours penalty
CME
in risk
management;
must pass JP
within 1
year
Bad faith §1467.101 and 1467.102 Good cause Agreed Order:
mediation by a of the Texas Insurance shown: Public
licensee in Code (bad faith in Remedial Plan: 8 reprimand; $5,000
relation out-of-network hours of medical admin penalty,
to an out-of- claim dispute ethics; otherwise, "except for good
network health resolution)--"except admin penalty is cause shown" per
benefit claim for good cause shown, the statutorily required §1467.102; plus
regulatory agency shall all
impose sanctions in low
an administrative penalty" category
Boundary §164.052(a)(5) RP is statutorily Cases involving
Violation: (unprofessional conduct prohibited physical contact:
Engaging in likely to injure public); Verbal remarks, or Agreed Order:
sexual contact Rule §190.8(2)(E)-(F) inappropriate Low
with a patient or behavior, but not sanctions plus
engaging in involving touching: IME,
sexually Agreed Order: Replace
inappropriate Public reprimand; chaperone
behavior or Vanderbilt or with may not treat
comments PACE patient of the
directed boundaries course; affected gender;
towards a patient JP exam; CME in or
ethics; chaperone suspension or
revocation
Boundary §164.052(a)(5)(unprofession RP is statutorily More than one
Violation: al prohibited incident (more
Becoming conduct likely to injure Single incident: than
financially public); Agreed Order: one patient, or
or personally Rule §190.8(2)(G) CME occasion): Agreed
involved with a in ethics, JP exam; Order: Low
patient in an if Sanctions plus:
inappropriate financial Public reprimand;
manner involvement, Vanderbilt or
restitution if PACE
appropriate; and/or boundaries
admin penalty course;
JP exam; CME in
ethics;
administrative
penalty; or
suspension or
revocation
Breach of §164.052(a)(5) Remedial Plan: 8 Agreed Order:
Confidentiality (unprofessional conduct hours risk Public
likely to injure public); management CME reprimand, CME in
Rule §190.8(2)(N) to risk management
include HIPAA, and in HIPAA
$500 requirements;
administration fee $3,000 per
occurrence; JP
exam
Cease and desist §164.002 (Board's general
order--issuance authority to dispose of "any
of: complaint or matter" unless
See "Unlicensed precluded by another statute)
practice of §165.052 (power to issue
medicine" cease
and desist orders against
unlicensed persons)
Cease and desist §165.052(b) (violation of Administrative Referral to
order (existing), (c) and (d) is grounds for penalty Attorney
violation of imposing admin penalty) $2,000 - $5,000 General for civil
per penalty and costs
offense or
criminal
prosecution.
§165.101
(civil)and
§165.152
(criminal)
Change in §164.051(a)(3) Rule Remedial Plan: 4 Agreed Order: 8
practice §166.1(d) hours of ethics/risk hours of ethics/risk
or mailing (notify Board within 30 days management and management;
address, of $500 $2,000 admin
failure to notify the change of mailing or practice administration penalty; JP exam
board of address or professional name fee
on
file)
CME - Failure to §164.051(a)(3) (forbids Remedial Plan: All Agreed Order: 8
obtain or breaking or attempting to missing hours of hours of CME in
document CME break a Board rule); Rule CME and 4 hours ethics/risk
§166.2 (48 credits each of management plus
24 months + other ethics/risk complete all
requirements management and missing
and accreditation of CME $500 hours; $1,000
req'ts) administration admin
fee penalty; JP exam
Crime: Abortion - §164.052(a)(16) (prohibits Agreed Order: Agreed Order:
performing a performing, procuring, aiding, Public Suspension,
criminal abortion. or Reprimand; must probated with
Health and Safety abetting in procuring a pass JP within 1 terms,
Code §170.002 criminal year; or revocation
and Chapter 171 abortion); $5,000 admin
(§170.002 §164.055 (requires penalty
prohibits "appropriate
third-trimester disciplinary action" against a
abortions, with physician who violates Health
exceptions; and Safety Code §170.002 or
Chapter 171 Chapter 171)
requires
physicians
to make available
certain materials
to abortion
patients
and restricts how
informed consent
is obtained; the
criminal offense
(§171.018) is an
unspecified class
of misdemeanor
punishable only
by
a $10,000 fine)
Crime: Arrest for §164.0595 (Temporary Agreed Order: Agreed Order:
offense under suspension or restriction Restriction of Suspension of
Penal of license for certain arrests) license, license, no
Code §§21.02; chaperone; may probation
21.11; not
22.011(a)(2); treat pediatric
22.021(a)(1)(B); patients
(assaultive
offenses
against children)
Crime: Deferred §164.057(c) (mandates Revocation is
adjudication revocation upon proof of statutorily required
community deferred adjudication
supervision for community supervision)
offense under
Penal
Code §§21.11;
22.011(a)(2);
22.021(a)(1)(B);
(assaultive
offenses
against children)
Crime: Felony §204.303(a)(2) of the Initial conviction: Revocation is
conviction Physician Assistant Act; Statutorily required statutorily required
§205.351(a)(7) of the §190.8(6)(A)(iv) on final conviction
Acupuncture Act; and -
§164.057(a)(1)(A) of the §164.057(a)(1)(A); §164.057(b)
Medical Practice Act suspension to
(requires occur
suspension on initial by operation of law
conviction pursuant to
for a felony) §187.72
Crime: Felony §204.303(a)(2) & (3) of the Agreed Order: Suspension or
deferred Physician Assistant Act; Appropriate Revocation;
adjudication; Board sanction §164.001(a);
Misdemeanor Rule 185.17(7)& (11); such as referral to Revocation is
involving moral §205.351(a)(7) of the PHP, anger statutorily required
turpitude deferred Acupuncture Act; management, IME, on final conviction
adjudication §164.051(a)(2)(A) of the restrictions on of
Medical Practice Act practice, CME in a felony-
(authorizes appropriate area §164.057(b)
sanctions for initial
convictions
and deferred adjudications
for
felonies and misdemeanors
involving moral turpitude)
Crime: §204.303(a)(2) of the If the offense is not If the offense is
Misdemeanor Physician Assistant Act; related to the related to the
conviction of §205.351(a)(7) of the duties duties
crime Acupuncture Act; and responsibilities and
involving moral §164.051(a)(2)(B) of the of responsibilities
turpitude Medical Practice Act the licensed of the licensed
(authorizes suspension on occupation, the occupation, the
initial conviction for standard sanction standard sanction
misdemeanor shall require: shall be revocation
of moral turpitude, and (-a-) Suspension of of the license.
revocation license, which may
upon final conviction) be probated;
(-b-) compliance
with
all restrictions,
conditions and
terms
imposed by any
order
of probation or
deferred
adjudication;
(-c-) public
reprimand; and
(-d-) administrative
penalty of $2,000
per
violation.
Crime: Texas Occupations Code Suspension Revocation
Misdemeanor §53.021;
conviction not Rule §190.8(6)(B)(iv) stating
involving moral Chapter 53 of applies to
turpitude that is misdemeanor convictions not
connected with involving moral turpitude but
the connected with the
physician's physicians
practice of practice of medicine and
medicine setting
out factors showing
connection to
practice of medicine
Crime: §164.057(a)(1)(B), (C), Suspension is Revocation is
Misdemeanor (D), and (E) (when statutorily required statutorily required
initial conviction misdemeanor conviction per on final conviction
under Penal Code requires suspension) §164.057(a)(1)(B) -
Chapter 22 §164.057(b)
(assaultive
offenses - see
also: arrest or
deferred
adjudication
for assaultive
offenses
against children)
of crime
punishable by
more than a fine;
OR
Penal Code
§25.07 (violation
of court order re:
family violence);
OR
§25.071 (violation
of court order re:
crime of bias or
prejudice); OR
one requiring
registration as a
sex offender
under
Code of Criminal
Procedures
Chapter 62
Death certificate, §164.053(a)(1) (authorizes Remedial Plan: 4 Agreed Order:
failure to sign sanctions via §164.052(a)(5) hours of ethics/risk CME – 8 hours of
electronically for management risk management,
breaking any law that "is and $500 4
connected with the administration fee – 8 hours medical
physician's ethics; $2,000
practice of medicine"); Health admin
and Safety Code Chapter 193 penalty; JP exam
(requires electronic filing
of death certificates)
Delegation of §164.053(a)(9) (describes Remedial Plan: 12 Agreed Order:
professional the violation as hours CME in Low
medical unprofessional supervision and sanctions plus no
responsibility or conduct, allows sanctions) delegation, 8 hours delegation or
acts to person if in supervision
the physician risk management, authority;
knows 8 administrative
or has reason to hours in medical penalty of $2,000
know that the ethics; JP exam per
person violation
is not qualified by
training,
experience,
or licensure to
perform the
responsibility or
acts
Discipline by §164.051(a)(7) (describes Agreed Order: See Agreed Order:
peers, may be offense: includes being the applicable Public
either an subjected sanction for the reprimand; comply
administrative to disciplinary action taken by violation of the with all
violation or SOC peers in a local, regional, Texas restrictions,
state, Medical Practice conditions and
or national professional Act terms
medical that most closely imposed by the
ass'n or being disciplined by a relates to the basis disciplinary action
licensed hospital or medical of by
staff the disciplinary peers to the extent
of a hospital, including action possible; and
removal, by peers. In administrative
suspension, limitation of addition, penalty of $3,000
privileges, or other action IF the licensee shall per
the comply with all violation, plus
board finds the action was restrictions, directed CME and,
based conditions and if
on unprofessional conduct terms SOC case, a chart
or professional incompetence imposed by the monitor. If not
that was likely to harm the disciplinary action SOC:
public by IME; anger
and "was appropriate and peers to the extent management;
reasonably supported by possible. CME
evidence submitted to the in communications
board."
Expert panel report provides
such evidence)
Disciplined by §164.051(a)(9) (describes If no standard of If out-of-state
another state or the violation, requires that care order
military may be acts for which discipline concerns, is revocation,
either an imposed be the same or Remedial revocation is
administrative similar to acts in §164.052 or Plan with statutorily
violation or a acts appropriate required.
patient care that are the same or similar to CME and $500
violation acts described in 164.051(a), administration fee;
for OR reciprocal
example rule violations, SOC Agreed
violations, and all forms of Order as
impairment) Issue is only appropriate.
whether there was an
order--no
relitigation of prior facts, e.g.,
no
new expert panel required
Drug logs - Failure §164.053(a)(2) (describes Remedial Plan: 8 Agreed Order:
to maintain (see offense and refers to Chapter hours of ethics/risk Public
also, violation of 481 Health and Safety Code management reprimand; 8
state or federal and and $500 hours
law connected 21 USC §801 et seq.) administration fee of ethics/risk
with practice) management;
$2,000 admin
penalty; JP exam
Employing a §164.052(a)(14) (describes Agreed Order: Agreed Order:
revoked/cancelled offense: "directly or indirectly Public Public
/ employs . . .); reprimand; $3,000 reprimand; $5,000
or suspended §164.052(a)(15) (forbids admin penalty; admin penalty; JP
physician (see associating in the practice take exam; no
also of medicine with such a and pass JP exam delegation
aiding and person) authority
abetting
the unlicensed
practice)
Failing to §164.053(a)(8); Remedial Plan: 12 Agreed Order:
adequately §164.053(a)(9) - These hours CME in Low
supervise sections describe the supervision and category
subordinates and respective violations and delegation; sanctions
improper define them as consider plus: monitoring of
delegation unprofessional ordering Rsp to practice; no
conduct furnish ED copies delegation or
of supervision
delegation orders authority;
of administrative
develop and penalty of $2,000
furnish per
delegation orders violation; JP exam
to ED; $500 admin
fee
Fails to keep §164.051(a)(3) Remedial Plan: Agreed Order: 8 or
proper medical (authorizes sanctioning CME more hours of
records rule violations); in appropriate medical record-
§164.051(a)(6) area; keeping, require
(authorizes sanctioning $500 in-
failure to practice acceptably administration person attendance
consistent with public fee if
welfare); practical; chart
Rule §165.1 describes monitor 8 – 12
contents of an adequate cycles; $2,000
medical record admin
penalty; JP exam;
PACE course in
medical record-
keeping if prior
order
for inadequate
record-keeping
Failure to §164.052(a)(5) (prohibits Single incident: Multiple instances:
Communicate conduct that is "likely to Remedial Plan--8 Agreed
with deceive hours risk Order: Public
patient or other or defraud the public" and management CME reprimand, risk
providers unprofessional conduct as to management and
defined by §164.053) include patient communications
communications, CME, fine,
$500 counseling, IME
administration
fee
Failure to display Rule §178.3(a)(1) Remedial Plan: 4 Agreed Order: 8
a (requires display of sign) hours of ethics/risk hours of ethics/risk
"Notice management management,
Concerning and $500 $1,000 admin
Complaints" sign administration fee penalty; JP exam
Failure to report §164.052(a)(5) (prohibits Single incident: Multiple or
dangerous conduct that is "likely to Agreed Order: egregious:
behavior to deceive or defraud the Admin Agreed Order:
governmental public" and unprofessional penalty; CME in Low
body conduct as defined by medical ethics; JP category
§164.053) exam sanctions
plus public
reprimand and
$5,000 admin
penalty
Failure to Pay/CS Gov't Code; Family Code Suspension until Suspension until
Chapter 232 (authorizes such time as the such time as the
suspending licenses of any licensee is no licensee is no
kind longer longer
granted by the state to in default is in default -
persons required statutorily
who do not pay support – statutorily required
payments) required
Failure to Pay §56.003 of the Texas Agreed Order: Suspension until
Student Loan Occupations Code public such time as the
reprimand; within a licensee is no
certain time frame, longer
provide proof of in default
entering into an
agreement with the
loan servicing
agent
and/or default has
been cured. Auto-
suspend if violate
order
Failure to report §164.052(a)(5)(prohibits Remedial Plan; Agreed Order:
suspected abuse conduct CME- Low
of that is “likely to deceive or 8 hrs risk sanctions plus
a patient by a third defraud the public” and management; JP public
party, when the unprofessional conduct as Exam reprimand;
report of that defined by §164.053); administrative
abuse Rule §190.8(2)(O) penalty
is required by law $3,000 per
violation
Fees, failure to §101.203 (prohibits Remedial Plan: 8 Agreed Order: 8 -
provide overbilling via hours of ethics/risk 16
explanation of ref to Health and Safety Code management/billin hours of CME in
§311.025); §101.351 g ethics, risk
(establishes practices and $500 management,
requirement and excludes administration fee billing
application of §101.351 to practices, and
physicians who post a billing CPT
practice sign in their waiting coding, $2,000
room) admin penalty
Fraud on a §164.052(a)(2); Misrepresentations If
diploma/in an §164.052(a)(3) (describes that do not make misrepresentation
exam offense as presenting an licensee/applicant makes the
illegally or fraudulently ineligible: licensee
obtained credential and Remedial ineligible, then
cheating on exams) Plan - 8 hours of revocation.
ethics/risk
management and
$500
administration
fee
Fraudulent, §101.203 (prohibits Agreed order: Agreed Order:
improper overbilling via ref to Including, Public
billing practices - Health and Safety Code but not limited to: reprimand,
requires that §311.0025); monitoring of monitoring of
Respondent §164.053(a)(7) (prohibits billing practice, including
knows violation of Health and practices; directed billing practices;
the service was Safety Code §311.0025) CME; restitution; directed CME;
not and restitution; and
provided or knows administrative administrative
was improper, penalty penalty of $3,000
unreasonable, or of $1,000, but not per
medically or to violation
clinically exceed the amount
unnecessary. of
Should not improper billing
sanction
for an unknowing
and isolated
episode.
Health care §160.052(b) (requires Remedial Plan: 4 Agreed Order: 8
liability reporting health care liability hours of ethics/risk hours of ethics/risk
claim, failure to claims to Board) Rule §176.2 management management;
report and and $500 $2,000 admin
§176.9 (prescribes form for administration fee penalty; JP exam
such
reporting)
Impairment (no §164.051(a)(4) (authorizes Refer to Voluntary
history and no sanctions for practicing by PHP--Public surrender
aggravating those referral via agreed or temporary
factors such as unable because of illness, order required if suspension
SOC, boundary drunkenness, excessive case involves
violation, or use of substances, or a discharge from
felony) mental or PHP,
physical condition); otherwise private
§164.052(a)(4) (forbids use referral is OK if
of appropriate
alcohol or drugs in an
intemperate manner that
could
endanger a patient's life)
Impairment (with §164.051(a)(4) (authorizes Agreed Order: IME Agreed Order:
history or SOC sanctions for practicing by with report to ED or Suspension of
violation or those unable because of to panel at re- license until such
boundary violation illness, convened ISC, time as the
or felony) drunkenness, excessive use restrict practice or licensee
of voluntary can demonstrate
substances, or a mental or suspension that the licensee is
physical condition); pending report; if safe and
§164.052(a)(4) (forbids use impairment is competent
of found to practice
alcohol or drugs in an at ISC, suspension medicine
intemperate manner that of OR Suspension
could license until such probated for 10
endanger a patient's life) time as the years with terms
licensee and
can demonstrate conditions
that the licensee is including
safe and but not necessarily
competent limited to: drug
to practice testing;
medicine, restrictions
with conditions to on practice; AA or
be NA attendance
determined by a evidenced by logs;
subsequent panel IME for
psychiatric/
psychological
evaluation and
treatment;
proficiency testing
OR revocation.
Intimidation of §164.052(a)(5) (prohibits Single Incident: Multiple/Egregious
Complainant unprofessional conduct as Public reprimand :
defined by §164.053 or and Suspension
that is "likely to deceive or fine and/or
defraud the public") revocation;
significant
admin penalty;
CME
in ethics; JP exam
Medical Records: §159.006 of the Act Remedial Plan: 4 Agreed Order: 8
failure to release/ (information furnished by hours of ethics/risk hours of ethics/risk
Overcharging for licensee); §164.051(a)(3) management and management,
(prohibits rule violations); $500 $2,000 admin
Rule administration penalty; JP exam.
§165.2 (requires release to fee Also, §159.006
proper person as described (Board may
therein unless release would appoint
harm the patient and temp or
prescribes permanent
allowable charges custodian of
patient records
held
by a physician)
Misleading §164.051(a)(3); Remedial Plan: 8 Agreed Order: 16
advertising §164.052(6) hours of ethics/risk hours of ethics/risk
(prohibits false advertising); management, management in
Rule correct the person, correct the
§164.3, §164. advertisement advertisement,
and $500 $5,000 admin
administration fee penalty, JP exam
Operating an §158.001(b) (requires Agreed Order: Agreed Order: JP
unlicensed physicians to comply with Must exam; cease
pharmacy Occupations Code Chapter pass JP within 1 operating
558 year, pharmacy;
to operate a retail pharmacy) $2,000 penalty, CME – ethics and
CME risk management
– medical ethics
Overbilling: See
fraudulent,
improper billing
Peer review
action: See
Discipline by
peers
Physician-patient Rule §190.8(1)(J) Single incident: Multiple instances:
relationship, (requires reasonable Remedial Public reprimand,
Improper notice to patient of Plan: 8 hours CME risk management,
termination of termination) - fine, CME - in
4 risk management physician-patient
and 4 ethics, $500 communications
administration fee
Pill mills, Revocation
unregistered
pain clinics,
overprescribing –
See Delegation,
Supervision,
Prescribing
Prescribing §164.051(a)(6); Rule Agreed Order Agreed Order
controlled §190.8(1)(L), (M) CME 8 hours Low sanctions
substances to medical plus
oneself, family recordkeeping, or public reprimand;
members, or risk management; restrictions on
others in which 8 prescribing to self,
there is a close hours appropriate family, and others
personal prescribing of in
relationship controlled which there is a
absent immediate substances; JP close personal
need, without Exam relationship,
taking an restrictions on
adequate history, If only one practice including
performing a prescription and no restrictions on
proper physical evidence of prescribing and
examination, pattern, administering
or creating and the ISC Panel may controlled
maintaining consider a substances and
adequate remedial dangerous drugs,
records plan. administrative
penalty of
$3,000 per
violation
Prescribing §164.051(a)(6); Rule Remedial Plan: Agreed Order:
dangerous drugs §190.8(1)(L), (M) CME - 8 hours Low
to oneself, family medical sanctions plus
members, or recordkeeping or restrictions on
others in which risk prescribing to self,
there is a close management; JP family, and others
personal Exam in
relationship which there is a
without taking an close personal
adequate history, relationship and
performing a administrative
proper physical penalty of $2,000
examination, per
or creating and violation
maintaining
adequate records
Prescribing, writes §164.053(a)(3),(a)(4) Agreed Order: Agreed Order
false or fictitious (defines the violations under CME - Low sanctions
prescriptions OR unprofessional conduct) 8 hours drug- plus:
prescribes or seeking behavior, restrictions on
dispenses drugs 8 practice including
to hours risk restrictions on
a person who is management; prescribing and
known to be an chart administering
abuser of narcotic monitor at least 8 controlled
drugs, controlled cycles; if substances and
substances, or Respondent dangerous drugs;
dangerous drugs does not use one, proficiency testing;
OR order to develop a directed CME; and
writes pain management increase
prescriptions contract with administrative
for or dispenses to specific penalty to $5,000
a person who the provisions for per
physician should termination of violation.
have known was physician-patient
an abuser of relationship on a If evidence of false
narcotic drugs, maximum of 3 or fictitious
controlled violations by the prescriptions,
substances, or patient including a surrender DEA
dangerous drugs positive test for a registration
controlled certificate
substance for all controlled
not prescribed by substance
Respondent, drug schedules.
screens required
by
contract; JP Exam;
admin penalty of
$3,000 per
violation
Prescribing, §164.053(a)(5),(a)(6) Remedial Plan Agreed Order:
nontherapeutic--o (prohibits prescribing or CME in Proficiency
r administering any drug or appropriate testing,
treatment that is area; $500 CME in
dispensing, or
nontherapeutic administration fee appropriate
administering of per se or because of the per year. area; chart
drugs way it is administered or monitor
nontherapeutically prescribed) for 8 cycles;
, administrative
one patient, no penalty of $3,000
prior board per
violation
disciplinary history
related to
standard
of care or care-
related violations

OR
prescribing,
administering, or
dispensing in a
manner
inconsistent
with public health
and welfare, one
patient, no
prior board
disciplinary history
related to
standard
of care or care-
related violations

Prescribing, §164.053(a)(5),(a)(6) Agreed Order: Agreed Order:
nontherapeutic--o (prohibits prescribing or Proficiency testing; Low
r administering any drug or CME in sanctions plus
dispensing, or treatment that is appropriate restrictions on
administering of nontherapeutic area; chart monitor practice, including
drugs per se or because of the 12 cycles; prescribing and
nontherapeutically way it is administered or administrative administering
More than one prescribed) penalty $3,000 per controlled
patient or prior violation substances and
history of dangerous drugs;
disciplinary action and administrative
for standard of penalty of $5,000
care or care- per
related violations violation. If there
are
OR aggravating
prescribing, factors,
administering, or revocation should
dispensing in a be
manner considered.
inconsistent
with public health
and welfare, more
than one
patient or prior
history of
disciplinary action
for standard of
care or care-
related violations
Referring a patient §164.052(a)(5) Remedial Plan: Agreed Order:
to a facility, (prohibits conduct that is CME 8 hrs ethics, Low sanctions
laboratory, or "likely to 8 plus
pharmacy without deceive or defraud the public" hrs risk public reprimand;
disclosing the and unprofessional conduct management; JP
existence of the as within Exam;
licensee’s defined by §164.053); 30 days of order’s administrative
ownership Rule §190.8(2)(H) entry, provide penalty
interest in the proof $3,000 per
entity of implement of violation
to the patient form
used to disclose
ownership to
interest
Refusal to §160.009 of the Act If records If records never
respond and Rule §179.4 (relating to eventually received
to board Request for Information and received, and intentionally
subpoena Records from Physicians); Remedial withheld,
or request for §164.052(a)(5), as further Plan of 8 hours of Agreed Order:
information or defined by Board Rule ethics/risk public
action 190.8(2)(B) (prohibits management and reprimand; JP
Unprofessional conduct as $500 exam;
defined by §164.053 or that is administration admin penalty;
"likely to deceive or defraud fee CME
the in medical ethics
public")
Reporting false or §164.052(a)(1) Misrepresentations If
misleading (forbids submission that do not make misrepresentation
information on an of false or misleading licensee/applicant makes the
initial application statements of documents in ineligible: licensee
for licensure or for an Remedial ineligible, then
licensure renewal application for a license) Plan - 8 hours of revocation.
ethics/risk
management and
$500
administration
fee
Reporting false or §164.052(a)(5), as further Remedial Plan - 8 Agreed Order:
misleading defined hours of ethics/risk 8 hours of
Board (non- by Rule §190.8(2)(C) management and ethics/risk
licensing matter) $500 management
administration JP Exam
fee administrative
penalty of $3,000
Self-Prescribing:
See "Prescribing
to self."
Solicitation of §165.155 (provides a Agreed Order (if no Egregious: Agreed
patients/Drummin Class A misdemeanor conviction): 8 Order: Public
g penalty) hours reprimand, chart
of ethics/risk sign
management off, $5,000 fine, JP
and $500 exam, CME in
administration fee medical ethics OR
referral to county
attorney for
prosecution as
Class
A misdemeanor
under §165.155(e)
Standard of §164.051(a)(6) (fails to Remedial Plan*: Agreed Order:
Care - one practice CME in Proficiency
patient, no prior medicine in an acceptable, appropriate testing;
SOC or care- professional manner area; $500 directed CME;
related violations consistent administration chart
with public health and fee per year. monitor for 8
welfare) *No RP if case cycles;
concerns a administrative
patient death penalty
of $3,000 per
violation
Standard of §164.051(a)(6) (fails to Agreed Order: Agreed Order:
care - one practice Chart Limiting the
patient, one medicine in an acceptable, monitor for 8 practice
prior SOC or professional manner cycles; of the person or
care-related consistent directed CME, excluding one or
violation with public health and administrative more specified
welfare) penalty activities of
of $3,000 per medicine;
violation proficiency
testing; directed
CME; monitoring
of
the practice (either
chart monitor for
12
cycles or
supervising
physician for a
number of cases
or
specified period of
time); public
reprimand; and
administrative
penalty of $5,000
per
violation.
Standard of care - §164.051(a)(6) (fails to Agreed Order: Agreed Order: K-
one patient, more practice Limiting the STAR or PACE or
than one prior medicine in an acceptable, practice equivalent
SOC or care- professional manner of the person or proficiency
related violation consistent excluding one or testing; directed
with public health and more specified CME; chart
welfare); activities of monitoring (either
§164.051(a)(8) (recurring medicine; chart monitor for
meritorious healthcare proficiency testing; 16
liability directed CME; cycles or
claims that evidence monitoring of the supervising
professional practice (either physician for a
incompetence likely to injure chart number of cases
the monitor for 12 or
public); Rule §190.8(5) cycles specified period of
(defines or supervising time), restricting
"recurring" as 3 or more physician for a the
claims number of cases or practice;
awarded or settled for specified period of withdrawal
$50,000 in time); of prescribing
a 5-year period) administrative privileges or
penalty of $ 3,000 delegating
per privileges;
violation public reprimand;
administrative
penalty of $5,000
per
violation
Standard of §164.051(a)(6) (fails to Agreed Order: Agreed Order:
care - more practice Chart Monitor for 8 Proficiency
than one patient, medicine in an acceptable, cycles; CME in testing;
no prior SOC or professional manner appropriate area; directed CME;
care- consistent administrative chart
related violation with public health and penalty monitor 12 cycles;
welfare); of $3,000 per public reprimand;
§164.051(a)(8) (recurring violation and administrative
meritorious healthcare penalty of $5,000
liability per
claims that evidence violation
professional
incompetence); Rule
§190.8(5)
(defines "recurring" as 3 or
more
claims awarded or settled for
$50,000 in a 5-year period)
Standard of care - §164.051(a)(6) (fails to Agreed Order: Suspension or
more than one practice Proficiency testing; revocation
patient, prior SOC medicine in an acceptable, directed CME;
or care-related professional manner monitoring for 12
violations consistent cycles; requiring
with public health and oversight or
welfare); restricting of the
§164.051(a)(8) (recurring practice; public
meritorious healthcare reprimand; and
liability administrative
claims that evidence penalty
professional of $5,000 per
incompetence); Rule violation.
§190.8(5)
(defines "recurring" as 3 or
more
claims awarded or settled for
$50,000 in a 5-year period)
Supervision of
midlevels, failure
to
perform:
See "Failing to
adequately
supervise
subordinates
and improper
delegation."
Unlicensed §165.052(a)(see Cease and Desist Cease and Desist
practice of definition of "practice of Order and referral Order; referral to
medicine medicine" at of Attorney General's
§151.002(a)(13)) Order to District office for injunction
Attorney or or civil penalties
Attorney General
Unsound Mind - §164.051(a)(5) (enables Suspension of Temporary
adjudicated (See Board to take action if a license until such suspension
also licensee or applicant "is time as the prior to seeking
"Impairment') found by a court to be of licensee revocation; show
unsound mind") can demonstrate cause hearing
that under
the licensee is safe §164.056
and competent to
practice medicine;
IME and return to
ISC
panel with results
Violation of Board §164.052(a)(5) (enables Administrative in Agreed Order:
Order sanctioning of unprofessional nature- Agreed Low
or Order: sanctions plus:
dishonorable conduct as Administrative public reprimand;
defined by §164.053 or Penalty of $1,000; admin penalty of
conduct Substantive in $3,000 - $5,000
that injures the public) nature-extension
of
order and increase
the terms of the
original order
Violation of state §164.053(a)(1) (authorizes If criminal law, see Agreed Order:
or federal law sanctions via §164.052(a)(5) above under public
connected with for "Crime." reprimand;
physician's breaking any law that "is If civil law, Agreed restriction
practice connected with the Order: must pass of license;
physician's JP surrender
practice of medicine") exam and 8 hours of controlled
of substance
risk privileges;
management/ethic plus low sanctions
s
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
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Jeff Lutz on behalf of Kathy Johnson
Bar No. 24126964
jeff.lutz@oag.texas.gov
Envelope ID: 106191658
Filing Code Description: Brief Not Requesting Oral Argument
Filing Description: 2025 0929 TMB Appellee Brief
Status as of 9/29/2025 11:52 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Jason M.Davis jdavis@dslawpc.com 9/29/2025 11:34:23 AM SENT

Ted Ross 24008890 Ted.Ross@oag.texas.gov 9/29/2025 11:34:23 AM SENT

Jeff Lutz jeff.lutz@oag.texas.gov 9/29/2025 11:34:23 AM SENT

Hayley Ellison Hellison@dslawpc.com 9/29/2025 11:34:23 AM SENT

Katherine Johnson 24126964 kathy.johnson@oag.texas.gov 9/29/2025 11:34:23 AM SENT