Gonzalez v. Tex. Med. Bd.

• Docket Number: 03-22-00205-CV
• Decision Date: 31 October 2023
• Parties: Reynaldo "Rey" Gonzalez, Jr., M.D., J.D., Appellant v. Texas Medical Board, Appellee
• Court: Texas Court of Appeals

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Reynaldo "Rey" Gonzalez, Jr., M.D., J.D., Appellant v. Texas Medical Board, Appellee

No. 03-22-00205-CV

Court of Appeals of Texas, Third District, Austin

October 31, 2023

FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY NO D-1-GN-21-003901, THE HONORABLE JAN SOIFER, JUDGE PRESIDING

Before Chief Justice Byrne, Justices Triana and Smith

MEMORANDUM OPINION

Gisela D. Triana, Justice

Appellee Texas Medical Board (TMB) issued a cease-and-desist order against appellant Reynaldo "Rey" Gonzalez, Jr M.D., J.D, prohibiting him from, among other things, holding himself out to be a licensed physician in the State of Texas. Gonzalez subsequently filed suit against TMB in district court, challenging that order. TMB filed an amended plea to the jurisdiction, arguing that Gonzalez's suit was untimely. The district court granted the plea and dismissed Gonzalez's suit. In four overlapping issues on appeal Gonzalez asserts that the district court erred by granting the plea to the jurisdiction, by sustaining TMB's hearsay objection to the admissibility of statements made by Gonzalez's counsel during the administrative hearing, by dismissing his claims for declaratory and injunctive relief and by dismissing his administrative appeal of the cease-and-desist order. We affirm in part and reverse and remand in part the district court's order.

BACKGROUND

Gonzalez has a medical degree from Ross University School of Medicine and a law degree from Dayton University School of Law. He is licensed to practice law in Texas but not medicine. In the 2020 election cycle, Gonzalez ran unsuccessfully for Texas District 34 of the U.S. House of Representatives. During his campaign, Gonzalez referred to himself as a physician and a doctor, including by making the following statements:

As a physician, I recognize the importance of emphasizing lifestyle modifications which, if adopted, lead to healthy states, largely obviating the need for medical intervention . . .

For those who want to relate to the candidate, I am a physician. Like most doctors, I care about people. I listen. I act decisively in the best interest of my patients.

By God's grace I am a physician and an attorney. I adopted a motto years ago which appears on my office's logo. It says in Latin, "Vocatus ad Sanandum," which means, "Called to Heal." My calling to serve in medicine was to heal the sick. My calling to serve in law is to heal my fellow man who is wronged by a third party. My most recent calling, to serve in the United States House of Representatives, is to contribute to the healing and a return to civility to our nation.

According to the allegations in Gonzalez's first amended petition, TMB received an anonymous complaint during the campaign that Gonzalez was holding himself out as a physician and had referred to himself as "Dr. Gonzalez." In September 2020, Gonzalez received correspondence from TMB stating that it had opened a formal investigation to determine if he had violated the Medical Practice Act and the Healing Art Identification Act by engaging in the unlicensed practice of medicine. Gonzalez responded in writing, stating that he does not practice medicine because he never applied for a Texas medical license after receiving his medical degree, that he would not refer to himself as a physician moving forward, but that he was entitled to call himself a doctor because he had M.D. and J.D. degrees.

TMB convened a cease-and-desist hearing, after which the Board concluded that Gonzalez had violated both the Medical Practice Act and the Healing Art Identification Act and made the following findings of fact and conclusions of law:

FINDINGS OF FACT

The Board finds that:

1. Respondent is not licensed to practice medicine in any jurisdiction.

2. On March 31, 2008, Respondent graduated from Ross University with a Doctor of Medicine degree.

3. On May 8, 2010, Respondent graduated from University of Dayton School of Law with a Juris Doctor degree.

4. On May 6, 2011, the State Bar of Texas licensed Respondent to practice law.

5. Respondent is a political candidate, most recently running for the United States House of Representatives, Texas District 34.

6. Respondent referred to himself in his campaign videos, social media, and advertising as a "physician" and "medical doctor" and as a "Dr."

7. Respondent also represented that he was a physician in interviews during the campaign, including stating that "[A]s a physician, I recognize the importance of emphasizing lifestyle modifications which, if adopted, lead to healthy states..."

8. On October l, 2020, Respondent represented to the Board that he would no longer refer to himself as a "physician" and would "attempt to correct anyone who does so in the future."

9. However, Respondent did not remove the content described above from his website and social media.

10. Respondent continues to use the title Dr. Rey Gonzalez online and on his social media without designating the authority under which the title was issued or the college or honorary degree that gives rise to the use of the title "Dr." or "physician."

11. By holding himself out as a physician without designating the authority giving rise to the title(s), Respondent violated the Healing Arts Identification Act and the Medical Practice Act.

CONCLUSIONS OF LAW

1. Section 104.003 of the Healing Art Identification Act requires licensed healing arts practitioners to designate the healing art the person is licensed to practice.

2. Section 104.004 of the Healing Art Identification Act provides that a person using the title "doctor" must designate the authority under which the title issued or the college or honorary degree that gives rise to the use of the title.

3. Section 165.052(a) of the Act authorizes the Board, after notice and opportunity for a hearing, to issue a Cease and Desist Order prohibiting an unlicensed person from engaging in activity that violates the Act, a rule adopted under the Act, or another state statute or rule relating to the practice of medicine.

4. Section 165.052(b) of the Act provides that a violation of an Order under Section 165.052(a) constitutes grounds for imposing an administrative penalty under Tex. Occ. Code, Title 3, Subtitle B, Chapter 165, Subchapter A, which allows for an administrative penalty of up to $5000 for each Violation to be assessed, and each day [] a violation continues constitutes a separate violation.

5. Section 165.156 of the Act prohibits a person from using any letters, words, or terms affixed on stationery or on advertisements, or in any other manner, to indicate that the person is entitled to practice medicine if the person is not licensed to do so.

6. Chapter 187, Subchapter I of the Board Rules sets forth the Board's Procedural Rules for the handling of complaints and proceedings regarding the unlicensed practice of medicine.

7. Respondent's conduct, as described above, shows that Respondent violated the Act under the legal authority listed above.

Based on these findings and conclusions, the Board issued a cease-and-desist order prohibiting Gonzalez from "acting as, or holding himself out to be, a licensed physician in the State of Texas" and from "referring to himself as a doctor or physician in any manner, including by referring to himself as 'doctor,' or 'Dr.,' unless he also designates the authority under which the title is used or the college or honorary degree that gives rise to the use of the title." The order further specified that "[a]ny violation of this Order constitutes grounds for imposing an administrative penalty of up to $5,000 for each violation, and/or each day of a continuing violation, of the Medical Practice Act."

The order was dated February 26, 2021. On March 23, 2021, Gonzalez filed with the Board a motion for rehearing that was overruled by operation of law on April 22, 2021. On August 11, 2021, Gonzalez filed in district court a petition for judicial review.

In his petition, which Gonzalez characterized as "an administrative appeal," he stated that he was seeking "judicial review of a TMB Cease and Desist Order Declaratory Relief, and an Application for a Temporary Injunction." More specifically, he alleged that "[t]he agency's decision is not supported by substantial evidence"; "[t]he hearing panel exceeded its authority by issuing the Cease and Desist Order"; neither the Medical Practice Act nor the Healing Art Identification Act apply to him because he is not licensed to practice medicine and thus the Texas Medical Board lacked jurisdiction to sanction him; Gonzalez was permitted to refer to himself as a doctor based on his medical and law degrees; and there was no evidence that he knowingly violated the Medical Practice Act. Gonzalez also raised constitutional claims that "[t]he cease-and-desist order is a prior restraint on free speech and seeks to regulate future speech in contravention" of the First Amendment to the United States Constitution and Article 1, Section 8 of the Texas Constitution; the order "is also an improper attempt to curtail future political speech and is a form of impermissible government censorship"; and Section 104.004 of the Healing Art Identification Act, the provision that requires persons using the title of doctor to designate the authority under which the title has been issued, is both unconstitutional as applied to Gonzalez and "facially invalid because it will chill the political speech of other persons who have medical or doctoral degrees from truthfully referring to their education or training." Based on these claims, Gonzalez asked the district court to vacate the order and issue declaratory judgments that "the agency exceeded its statutory authority by seeking to regulate non-licensees who are not engaged in the unlawful practice of...