Texas State Board of Examiners of Psychologists v. Ronald V. Kidd, Ph.D.--Appeal from 167th District Court of Travis County

Tx. State Board of Psychology Examiners v. Kidd TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-93-00539-CV
Texas State Board of Examiners of Psychologists, Appellant
v.
Ronald V. Kidd, Ph.D., Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 91-10104, HONORABLE MARGARET COOPER, JUDGE PRESIDING

Appellant Texas State Board of Examiners of Psychologists (the "Board") revoked appellee Ronald V. Kidd's license to practice psychology. The Board appeals a judgment of the district court of Travis County vacating the Board's order and reinstating Kidd's professional license. See Administrative Procedure Act (the "APA"), Tex. Gov't Code Ann. 2001.171 (West 1996). (1) We will affirm the judgment.

 
BACKGROUND

Ronald V. Kidd is a psychologist licensed by the Board and subject to the Board's disciplinary jurisdiction. The Board's enabling statute authorizes the Board to cancel, revoke, or suspend the license of a psychologist on proper showing.

In 1991, after receiving a complaint alleging that Dr. Kidd had engaged in sexual improprieties with a patient, the Board conducted a formal hearing on the matter. See APA 2001.054(a). Kidd admitted sexual contact with the complainant but denied that it took place during their professional relationship.

Following the hearing, the Board issued findings of fact and conclusions of law. The Board found that Kidd's services did not meet standards of professional competency, that Kidd had failed to effectively terminate his therapeutic relationship with complainant before he engaged in sexual intimacies with her, and further concluded that Kidd's conduct violated the Board's Code of Ethics and had thus been unprofessional. See 22 Tex. Admin. Code 461.3 (1996) ("TAC"). The Board order revoked Kidd's license to practice psychology. See Tex. Rev. Civ. Stat. Ann. art. 4512c, 23(a)(6) (West Supp. 1996).

Kidd appealed the Board's order to the Travis County district court. Upon review, the district court found that (1) the complaint was barred by the limitations period in 22 Tex. Admin. Code section 461.17; (2) the Board's challenged findings of fact were not supported by substantial evidence in the record or by facts officially noticed; (3) the Board's conclusions were based upon findings unsupported by the record; and (4) the Board did not properly adopt its findings, conclusions, and order. The district court vacated the Board's order and reinstated Kidd's license after determining that the Board's decision prejudiced the substantial rights of Kidd on all of the grounds enumerated in APA section 2001.174(2)(A)-(F). (2)

The Board appeals the district court's judgment on a narrow issue. The Board complains only that after reversal the court should have remanded the cause to the agency. The Board does not appeal the reversal of its order or challenge any of the adverse findings of the district court. We decline to consider matters not raised by point of error on appeal.

 
DISCUSSION

In a single point of error, the Board urges that after reversing and vacating the Board's order, the district court erroneously rendered judgment reinstating Kidd's license rather than remanding the cause to the Board. We are asked only to decide whether remand was the appropriate disposition of the cause. As the Board states in its brief, "[T]he Board does not challenge the district court's order to the extent it effectively reverses the Board's order . . . . [T]he Board limits its appeal to the single issue of whether or not the district court erred in vacating its order and reinstating . . . instead of reversing . . . and remanding."

Kidd entered into a psychologist/client relationship with the complainant in El Paso in 1981. This continued until he notified her by letter, closed his practice, and moved to Minnesota in September 1983. Kidd contended that their professional relationship ended, but the Board found that it continued. Although he never charged her a fee thereafter and did not see her for several years, they continued extensive correspondence and telephone contact. On two separate occasions in 1988, they engaged in sexual intimacies in Kidd's apartment. The complaint was not filed until March 1991.

Kidd filed a motion to dismiss the complaint on the ground that it was time-barred. The pertinent rule states:

 

In the absence of unusual circumstances, as determined by the board, a complaint is timely filed if it is received by the board, in proper form, within five years of the date of termination of the professional services.

 

22 Tex. Admin. Code 461.17 (1996). The Board overruled the motion to dismiss, finding that the professional relationship never formally terminated and that Kidd continued a professionally improper dual relationship with the patient until she filed her complaint. The Board made findings of fact and conclusions of law in support of its order of revocation. The Board found, for example, in findings 6, 7, 8, and 9 that Kidd continued as the complainant's psychological therapist beyond his 1983 attempted formal termination and throughout the time in question, including 1988, while at the same time evidencing a personal and intimate friendship with her. These were among the findings Kidd successfully challenged. The district court ruled that none of the findings were supported by substantial evidence in the record or by facts officially noticed, and that the conclusions as to Kidd's unprofessional conduct and incompetent psychological services are based upon findings of fact for which there is no supporting evidence in the record. The Board does not appeal the district court's ruling that the Board's underlying findings of fact were not supported by substantial evidence.

Based upon its findings, the Board revoked Kidd's license. Upon review, the district court rendered judgment that vacated the Board's order. (3) The Board concedes that the judgment vacating the Board's decision effectively reverses the Board's order, and it does not challenge the reversal. We construe the judgment in accord with the parties. The Board complains, however, that after reversal the court could not then render judgment reinstating Kidd's license but was required to remand.

The APA does not explicitly provide that courts may render decisions upon reversal of an agency order. Instead, the statute reads in relevant part that:

 

[A] court may not substitute its judgment for the judgment of the state agency on the weight of the evidence on questions committed to agency discretion but:

(1) may affirm the agency decision in whole or in part; and

 

(2) shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced . . . .

 

Tex. Gov't Code Ann. 2001.174(1), (2) (West 1996) (emphasis added). Thus, the court may not substitute its judgment for that of the agency on matters within its discretion, expertise, and delegated policy area but shall reverse or remand the case for further proceedings if the appellant's substantial rights have been prejudiced. See 2 Frank E. Cooper, State Administrative Law 776-78 (1965 ed.).

The effect of a reversal is to change the order being reviewed to the opposite result. The reversal vacates and sets aside the Board's order revoking Kidd's license. This in turn has the practical effect of nullifying the decision and reinstating the license, pending any further action. See A Dictionary of Modern Legal Usage 398 (Bryan A Garner ed., 1987) (entry "overrule; overturn; reverse; set aside; vacate"). Thus, even if it were error to render judgment reinstating the license, the judgment merely recites the legal effect of reversing and vacating an order revoking a license.

The question remains whether the district court should have remanded the case to the agency. The Board has jurisdiction to determine whether Kidd should be disciplined. APA section 2001.174 authorizes the court to reverse agency decisions upon a finding of agency error. In addition, the statute protects agencies from judicial usurpation of agency power; the court, through remand, must allow the agency to have a chance to correct its errors in further proceedings. See Goeke v. Houston Lighting & Power Co., 761 S.W.2d 835, 846 (Tex. App.--Austin 1989), rev'd on other grounds, 797 S.W.2d 12 (Tex. 1990) (reasoning that "the Legislature intended . . . that the agency be given a meaningful opportunity to exercise its delegated powers to correct any error of law upon which the reviewing court reversed the agency decision"); but see Coalition of Cities v. Public Util. Comm'n, 798 S.W.2d 560, 565 (Tex. 1990), cert. denied, 499 U.S. 983 (1991) (holding that when agency determines party has failed to meet its burden of proof on issue at administrative hearing, doctrines of res judicata and collateral estoppel bar party from relitigating issue before agency).

The parties agree that generally a remand is the appropriate disposition following a reversal of an agency order. Although APA section 2001.174 specifies that a court may "reverse or remand," the two remedies have been read by this court to imply a two-step procedure; a reversal necessarily implies remand back to the agency. See Texas State Bd. of Pharmacy v. Seely, 764 S.W.2d 806, 815 (Tex. App.--Austin 1988, writ denied) (holding that remand is proper judgment following reversal). However, under rare circumstances, Texas courts have reversed and rendered judgments in contested case proceedings. See Dotson v. Texas State Bd. of Medical Examiners, 612 S.W.2d 921, 924 (Tex. 1981). We must thus determine whether the present case presents circumstances under which a court's reversal and rendition of judgment is proper.

In Dotson, the Texas Supreme Court rendered judgment vacating two medical license suspension orders. See id. at 921; see also Wood v. Texas State Bd. of Medical Examiners, 615 S.W.2d 942, 944 (Tex. Civ. App.--Fort Worth 1981, no writ) (judgment rendered vacating order suspending license, following Dotson). In Dotson, the Texas State Board of Medical Examiners suspended the licenses of two doctors for prescribing drugs in a non-therapeutic manner. Dotson, 612 S.W.2d at 921. The district court sustained the agency's order, and the court of appeals affirmed. Id. The supreme court reversed the judgments of the lower courts after determining the record contained no substantial evidence, namely, no expert testimony, to support the medical board's orders. Id. at 924. The supreme court then rendered judgment vacating the medical license suspensions without remand. Id; see also Texas Alcoholic Beverage Comm'n v. Wines of Germany & the World, Inc., 691 S.W.2d 817, 818-19 (Tex. App.--Houston [1st Dist.] 1985, no writ) (citing APA 2001.174 for proposition that "actions which exceed the agency's statutory authority must be reversed," and then affirming district court's rendition of judgment vacating TABC's order denying a permit renewal); Kittman v. State Bd. of Pharmacy, 607 S.W.2d 26, 29 (Tex. Civ. App.--Tyler 1980, no writ) (finding Pharmacy Board's order revoking license was not supported by substantial evidence and rendering judgment vacating order). (4)

The issue on appeal is whether the trial court abused its discretion in declining to remand the cause to the Board. Whether the trial court abused its discretion depends on its orchestration of the following factors: (i) the public interest in effectuating the agency's regulatory objectives; (ii) the reliance the prevailing party should be entitled to place on the district court's judgment; and (iii) whether the litigation should end with the district court's judgment in the interests of repose and fairness. See International Union of Mine Workers v. Eagle-Picher Co, 325 U.S. 335, 340-342 (1945); Louis L. Jaffe, Judicial Control of Administrative Action 709-13 (1965). Nothing in the record suggests that the trial court failed to consider any of these factors, exaggerated unreasonably one or more of them, or considered an irrelevant factor in the its decision not to remand the cause to the agency. See Landon v. Budinger, 724 S.W.2d 931, 934-37 (Tex. App.--Austin 1987, no writ); W. Wendell Hall, Standards of Appellate Review in Civil Appeals, 21 St. Mary's L.J. 865, 934-35 (1990).

Because the district court's ruling followed the decision in Dotson, we cannot say that the court's judgment was in error. The judgment is affirmed.

 

Marilyn Aboussie, Justice

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: July 31, 1996

Do Not Publish

1. All citations in this opinion are to the current Administrative Procedure Act rather than the former Administrative Procedure and Texas Register Act because the recent codification did not substantively change the law. Act of May 22, 1993, 73d Leg., R.S., ch. 268, 46-7, 1993 Tex. Gen. Laws 986.

2. Agency findings, inferences, conclusions, or decisions prejudice the rights of an appellant if they are:

 

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

 

(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 Ann. 2001.174(2) (A)-(F) (West 1996).

3. The standard of review in this case was substantial evidence on the record. See Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988), cert. denied, 490 U.S. 1080 (1989); Texas Health Facilities Comm'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 449-50 (Tex. 1984).

4. The Court notes that pre-APA cases with substantial evidence de novo review do not control in the context of the present case. See Korndorffer v. Texas State Bd. of Medical Examiners, 460 S.W.2d 879, 880 (Tex. 1970) (holding that rendition of judgment is appropriate order when agency's order is not supported by substantial evidence in record). Appellate courts have the power to reverse trial court orders and render judgment.

Tex. Civ. App.--Tyler 1980, no writ) (finding Pharmacy Board's order revoking license was not supported by substantial evidence and rendering judgment vacating order). (4)