Texas Professional License Defense Lawyer Blog

Recently the Austin American Statesman interviewed me in detail regarding my representation of numerous dentists before the Texas State Board of Dental Examiners (TSBDE) for whom I had been the attorney of record. During the interview I also spoke to the reporter about several cases that were still in the investigative stage and as such she would not have known anything about the case or that I was the attorney representing the dentist in front of the TSBDE as the investigation(s) are confidential pursuant to the texas_detal_practice_act_254.pdf Most were disciplinary cases involving general dentists or oral surgeons who had been accused of violations of the Dental Practice Act involving the abuse of their DEA / DPS controlled substances prescribing authority, fraud, the intemperate use of drugs and alcohol or their arrest / plea of guilty to a criminal offense. The article focused on the status of the dentist's license to practice medicine as regulated by the Texas Dental Board.

During this interview I clearly told the reporter several things that were either overlooked or ignored which led to a sensational and inaccurate version of many of the events covered. The article was then syndicated by a number of newspapers and readers throughout Texas (see below) which yielded in what I believe to be a widespread misunderstanding of the disciplinary authority vested in the TSBDE as well as their use of that authority with respect to disciplinary / license investigations.

The article implied that the Dental Board was slow to act and/or failed to impose disciplinary sanctions commensurate with the dentist's transgressions. The article cited to a case which is still in the throes of a disciplinary investigation and as such is privileged pursuant to statute. I made this overly clear to the reporter, yet she continued to trash the dentist and the Board for what she called an apparent failure to act responsibly. Since that time the TSBDE has taken appropriate action in that case and the DPS has also initiated measures consistent with its statutes and rules. The unfortunate fact is that I told the reported that appropriate discipline was imminent, yet this reality was ignored for a hyped article which seemed to be geared towards angering readers rather than unveiling the truth.

The reporter then began to compare the Texas Medical Board's disciplinary authority and their aggressive use of that authority against licensed physicians to the TSBDE's recent history of issuing suspend probate orders to dentist's who have received treatment for drug or alcohol use, substance misuse or chemical dependency. I made it clear to her that the Texas Medical Board (TMB) had a vehicle by which they could issue private, non-public, confidential rehabilitation orders that were exempt from the Freedom of Information Act, but such an option was not available to the Dental Board. Thus the idea of comparing statistics was unfair and that the TMB public disciplinary orders related to substance abuse were likely to be harsh due to the physician not being granted a private rehab order.

Fortunately, the former Executive Director of the Texas Medical Board, Donald Patrick (a physician and an attorney) explained that the Dental Board was largely underfunded and would benefit from the receipt of extra monies from the legislature to beef of the number of its attorneys / lawyers and administrative legal staff. Dr. Patrick went on to say that until the TMB was able to hire more seasoned attorneys that the agency was at an unfair advantage and was often overworked or out-maneuvered.

Finally, I informed the journalist that both the TMB and the TSBDE recognized substance abuse / chemical dependency as a treatable disease and as such attempted to allow for rehabilitation as opposed to the discipline of the physician or dentist's license to practice medicine. I also made clear that the legislature clearly authorized peer assistance programs pursuant to the Health & Safety Code Chapter 467, but unfortunately no mention was made of this fact either. For those who believe that we should not bother to rehabilitate our trained medical professionals, it is important to note that the notion of long-term treatment, rehabilitation and the return to work theory was first utilized by the United States Navy with respect to its alcohol dependent pilots in whom our country had invested tremendous resources. Research showed that our pilots, with rigorous treatment and monitoring, performed at heightened levels once their disease process was arrested and recovery could begin. Arguably this is true for Texas' physicians and dentists as well.

Lubbock On Line

El Paso Times

Corpus Christi TV

The Texas Administrative Procedure Act requires that an agency do the following to effetively promulgate and adopt an agency rule :

1. The administrative agency must give at least 30 days' notice of its intention to adopt the proposed rule before that rule goes into force.


2. Such notice must be submitted to the Texas Secretary of State for publication in the Texas Register. Notice begins only on publication.


3. A proposed rule is automatically withdrawn six months after publication in the Texas Register if it is not adopted by the agency or adopted as amended.


4. The agency must allow all interested persons a reasonable opportunity to submit input orally or in writing. If the proposal is substantive, the agency must grant an opportunity for a public hearing if requested to do so by at least 25 people.


5. Legislative Review by the standing committee responsible. The standing committee may, on the vote of a majority of its members, send the agency a statement supporting or opposing the proposed rule.


6. The agency adopts its rule, with reasoned justifications why.

The rule is then published in the Texas Administrative Code and is thus noticed and enforceable by the agency as a matter of law. However, just because the rule is effective does not mean that its existence or the agency's application of it is necessarily legal and within the scope of its legislatively authorized power, Oftentimes a rule challenge or declaratory judgment action can be brought by an experienced professional license defense / administrative law attorney in an effort to overturn or enjoin agency action.

The Texas Pharmacy Board is enabled by the Texas Pharmacy Act. Tex. Occupations Code 551.001 et seq. The board is to regulate the practice of pharmacy and to license pharmacies. It does this through licensing pharmacists and pharmacies, determining and issuing standards for pharmacy education and training, and enforcing the provisions of the Texas Pharmacy Act.

It consists of nine members. Six are pharmacists and the other three are to represent the public. Each serves for six years; the terms are staggered. The Governor appoints the president of the Board from among its members. The president serves at the governor's pleasure. The board shall employ an executive officer, who must be a pharmacist.

Board Action is through the majority of a quorum.

The Board employs a staff that consists of departments including investigations, enforcement and the legal division or General Counsel's office. The legal division employs four attorneys who are responsible for the enforcement of agency action including the discipline of registered pharmacists (R.Ph.) licenses / registrations. The Texas Pharmacy Board attorneys also prosecute pharmacy violations if probable cause exists to believe a violation of the Texas Pharmacy Act has been committed.

The Texas Medical Board is enabled by the Medical Practice Act. Tex. Occupations Code 151.001 et seq. The Board is to regulate the practice of medicine. It does this primarily through granting licenses to practice medicine. It is also responsible for disciplining the erring physicians.

It comprises 12 physicians and 7 public members all appointed by the governor with the advice and consent of the senate. Of the 12 physicians 9 must be MDs and 3 must be DOs (Doctors of Osteopathy). The 7 public members are supposed to represent the public. Each serves for six years; the terms are staggered.

The Governor appoints a President among the members. The members choose a Vice-President and a Secretary-Treasurer among themselves.

The Board has to appoint an Executive Director who serves as the chief executive and administrative officer for the Board.

Quorum for transacting business: Majority + 1. Business transacted if majority of voting and present members pass the motion.

The Board hires a Staff who are responsible for running the agency. Staff comprises departments such as a legal, enforcement, licensing, public affairs and investigations. The legal or litigation division is reposnsible for the prosecution of disciplinary actions against physician licenses by and through its attorneys as well as the defense of decsions not to license by the Board's Licensure Committee.

The complaints and investigations division is reposnisble for opening or investigating all complaints as the investigation process at the TMB is a complaint driven process per the Medical Practice Act. Staff of the Board has the authority to generate its own complaints which has been a great source of controversy of late as there is a widespread belief Staff may abuse this authority.