Jose A. Perez v. Physician Assistant Board And Margaret K Bentley, in Her Individual and Official Capacities

ACCEPTED 03-16-00732-CV 14542985 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/3/2017 7:08:23 PM JEFFREY D. KYLE CLERK No. 03-16-00732-CV No.03-16-00840-CV FILED IN 3rd COURT OF APPEALS __________________________________________________________________ AUSTIN, TEXAS 1/3/2017 7:08:23 PM IN THE THIRD COURT OF APPEALS JEFFREY D. KYLE AUSTIN, TEXAS Clerk

JOSE A. PEREZ

Appellant

Vs.

PHYSICIAN ASSISTANT BOARD and MARGARET K. BENTLEY , in her Individual and Official Capacities

Appellees.

JOSE A. PEREZ’ MOTION FOR AN ORDER DIRECTING THE PHYSICIAN ASSISTANT BOARD TO REINSTATE MR. PEREZ AS A PHYSICIAN ASSISTANT WHILE THE SUIT IS BEING VENTILATED

(a)

A COURT OF EQUITY HAS SUBJECT MATTER JURISDICTION TO PROTECT MR. PEREZ’ RIGHT TO EARN A LIVING

1- Jose A, Perez respectfully requests that the Court of Appeals direct the Physician Assistant Board to reinstate Mr. Perez as a Physician Assistant while the case is being ventilated by the courts, As grounds therefore he shows:

2- The right to earn a living working as a physician assistant is a property right

that enjoys Constitutional protection1. A Court of Equity has subject matter

jurisdiction to protect Mr. Perez’ constitutionally protected property right

from the March 7th, 2014 administrative Order2. Texas Government Code §

23.101 assigns petitions for injunctive relief the highest priority.

3- The US3 and the Texas4 Supreme Courts have ruled that statutes which

revoke professional licenses are quasi criminal proceedings. The possibility

that a prosecutor could elect to hamstring his target by preventing him from

paying court costs raises substantial concerns about the fairness of the entire

proceeding. Where, as here, the government prevents a litigant in a quasi-

criminal proceeding from accessing his financial resources the litigant is being

deprived of his right to a fair trial5.

II

1 Castaneda v. Gonzalez, 985 S.W.2d 500 (Tex.App. Dist.1 12/03/1998) citing Smith v. Decker, 312 SW 2d 632, 633 (Tex. 1958) and Font v. Carr, 867 SW 2d 873, 875 (Tex. App.--Houston [1st Dist.] 1993, writ dism'd w.o.j.). Accord: Board of Regents v. Roth , 408 US 564 (1972) 2 ROA 38-41 – Vol 1 November 22nd, 2016 ; Id; State v. Morales, 869 SW 2d 941, 946-47 (Tex.

1994) citing Crouch v. Craik, 369 S.W.2d 311, 315 (Tex. 1963); Waller v. State, 68 S.W.2d 601 (Tex. App. 1934) ( The general right of every person to pursue any calling, and to do so in his own way, provided that he does not encroach upon the rights of others, cannot be taken away from him by legislative enactment.) 3 Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 US 423 , 432 (1982))

(revocation of professional licenses) quoted by Sprint Communications v. Jacobs, et al, No. 12- 815 (US-2013); ); In re Ruffalo, 390 US 544, 551 (1968); Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39, 1 L. Ed. 2d 796, 77 S. Ct. 752 (1957); Cummings v. The State Of Missouri, 71 U.S. 277 (U.S. 12/01/1866); In re Thalheim, 853 F.2d 383, 388 (5th Cir. 1988) ; Razatos v. Colorado Supreme Court, 746 F.2d 1429 (10th Cir. 10/29/1984) 4 Scott v. State, 24 S.W. 789 (Tex. 1894) 5 Luis v. US , 136 S.Ct. 1083, (US - March 30, 2016)

MR. PEREZ IS TIMELY CHALLENGING THE MARCH 7th, 2014 ORDER

4- Mr. Perez first case against the Texas Medical Board was dismissed for

lack of subject matter jurisdiction6. Consequently, the term of Mr. Perez’

license was tolled pursuant to the Civil Practice and Remedies Code § 16.0647(

a) (1) and (2) and Government Code § 2001.054 (d)8

II

SOVEREIGN IMMUNITY DOES NOT BAR A PETITION FOR INJUNCTIVE RELIEF ANCILLARY TO AN ADMINISTRATIVE APPEAL

5- A hearing on a temporary injunction9 ancillary to an administrative appeal

does not constitute "judicial review”10. An order granting a temporary

injunction is not a ruling on the merits11. The only question before the trial

court in a temporary injunction hearing is whether the applicant is entitled to

preservation of the status quo of the subject matter of the suit pending trial on

the merits12.

6 Perez v. Texas Medical Board et al, No. 03-14-00644-CV (3rd DCA-2015); Petition for Supreme Court Review denied Perez v. Texas Medical Board and Mari Robinson JD, in her official capacity, No. 16-0026 (TX -March 18, 2016) 7 Allen v. Port Drum Co., Inc., 777 SW 2d 776, , 778 (Tex. App.-Beaumont 1989, writ denied)

citing Sec. 16.064, Civil Practice and Remedies Code 8States that the term of a license is tolled during the period the license is subjected to judicial

review. 9 ROA 23-25; 48-49 Vol 1 November 22nd, 2016 10 Public Utility Commission v. Water Services, Inc., 709 S.W.2d 765, 766, 768 (Tex. App.-

Austin 1986, writ dism'd). 11 Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 208 (Tex. 1981) 12 id

WHEREFORE Mr. Perez respectfully requests that the Appellate Court

enter an Order directing the Physician Assistant Board to (a) immediately

reinstate Mr. Perez as a Physician Assistant; (b) to immediately remove

adverse data from the National Practitioner Data Bank and (c) immediately

remove adverse data from the Physician Assistant Board’s website .

Respectfully Submitted,

_____/S/ Jose A. Perez___ Jose A. Perez 1307 N. Jacinto Street Conroe, TX 77301-1940 theaesculapius@gmail.com 281-979-8356

Certificate of Conference As required by Texas Rule of Appellate Procedure 10.1(a)(5), I certify that I attempted to conferred, with Mr. Ted A. Ross but he failed or refused to respond. ___/S/ Jose A Perez__ Jose A. Perez

CERTIFICATE OF SERVICE

It is hereby certified that a copy of the foregoing “ Jose A. Perez Motion For an Order directing the Physician Assistant Board to reinstate Mr. Perez as a Physician Assistant Board while the suit is being ventilated” was served by emailing a copy thereof via the State efiling system on this 3rd Day of January 2016 to:

Ted A Ross, Esq Assistant Attorney General PO Box 12548 Austin, TX 78711-2548 ted.ross@texasattorneygeneral.gov

/S/ Jose A. Perez Jose A. Perez