CAUSE NO. D-1-GN-14- 00000

DEBORAH LOREN HARDIE

v.

TEXAS STATE BOARD OF VETERINARY MEDICAL EXAMINERS

§ § § § § §

IN THE DISTRICT COURT

OF TRAVIS COUNTY TEXAS

2001h JUDICIAL DISTRICT

PLAINTIFF'S ORIGINAL PETITION FOR JUDICIAL REVIEW

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES, Deborah Loren Hardie, aod brings this action seeking judicial review of

the October 22, 2013 final order of Defendant Texas State Board of Veterinary Medical

Examiners, denying her application to receive an equine dental provider license (the "Order").

In support of this Petition, Plaintiff will respectfully show the Court as follows:

I. Introduction

Plaintiff Deborah Loren Hardie has over 15 years of experience performing equine dental

services for horse owners in Texas and California. In 2011, the Texas legislature amended the

veterinary licensing act to require persons who practice equine dentistry, other thao licensed

veterinarians and their employees, to be licensed. Ms. Hardie qualified for a license based on her

years of experience aod in August 2012, she applied for a license. In her license application, she

disclosed that she plead guilty to one misdemeanor charges of aoimal cruelty and on

misdemeaoor charge of horse theft that arose from a horse rescue operation she operated in

California, that became a subject of controversy in the local community. She agreed to serve

three years probation aod in 2006, while living in Texas, she completed the probation term aod

later continued working as an equine dentist. The Board denied her application because of the

2003 misdemeanor convictions. Plaintiff requested a hearing to contest the denial of her

application.

On June 19, 2013, a hearing was held before a SOAH judge who, after hearing the

evidence and argument of counsel and considering proposed findings of fact and the stipulations

of the parties, found that Ms. Hardie was currently fit to practice as an equine dentist and

recommended that the Board issue her a probated license to practice equine dentistry.

The Board consider the SOAH's judge's proposal for decision as well exceptions and

argument by counsel for the parties and issued its final order on October 22, 2013 deleting the

proposed finding of fact stating that Ms. Hardie is fit to be licensed and the conclusion of law

authorizing issuance of a license subject to probationary terms and conditions. Plaintiff filed this

appeal to challenge the Board's final decision to deny her a license.

II. Parties

Plaintiff Deborah Loren Hardie is an individual Texas resident.

Defendant Texas State Board of Veterinary Medical Examiners is an agency of the State

of Texas with statewide jurisdiction and may be served by delivering a copy ofthis petition to its

Executive Director, Nicole Oria, Texas State Board of Veterinary Medical Examiners, 333

Guadalupe, Austin, Texas 78701.

III. Jurisdiction

On October 22, 2013, Defendant executed an order (the "Order") in Texas State Board of

Veterinary Medical Examiners v. Deborah Hardie, SOAH NO. 573-13-3633, TBVME

DOCKET NO. 13-059, modifying the SOAH proposal for decision and denying Ms. Hardie's

application for a license to practice equine dentistry. A true and correct copy of the Order is

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attached as Exhibit A. The order was served on Plaintiff's counsel by mail postmarked

November 12, 2013.

On December 2, 2013 within 20 days of service of the Order, Plaintiff filed a Motion for

Rehearing complaining of procedural, legal and evidentiary errors that prejudiced Plaintiff's

substantial rights. A true and correct copy of the Motion for Rehearing is attached as Exhibit B.

On December 22, 2013, the Motion for Rehearing was overruled by operation of law.

Accordingly, this is an appeal of a final order by the Board. Plaintiff filed this appeal on January

20, 2014, within 30 days after the Order became final and appealable.

This Court has jurisdiction to consider Ms. Hardie's challenge to the Order denying her

license application pursuant to the Administrative Procedure Act, Tex. Gov't Code Ann., section

2001.001 et. seq. (Vernon 2008) (APA), Tex. Occ. Code Ann. (Vernon 2012), section 801.407

and other applicable law.

IV. Claims for Relief

The following claims for relief are stated generally and are consistent with those points

raised in the Motion for Rehearing. The Motion for Rehearing specifically identifies those

findings and conclusions that are implicated by the claims discussed below. That portion of the

Motion for Rehearing is hereby incorporated into this Original Petition by reference.

A. The Board's modification of the SOAH ALJ's proposed findings was made in violation of statutory provisions of the Administrative Procedure Act and is arbitrary, capricious and characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Despite the clear limitations set forth in the Administrative Procedure Act (see Tex.

Gov't Code § 2001.058(e)), the Board modified the SOAH proposal for decision by deleting

Finding of Fact 14 and Conclusion of Law No.5. The Board's stated reasons for modifying the

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Proposal for Decision are legally incorrect, and are arbitrary, capricious and characterized by

abuse of discretion or clearly unwarranted exercise of discretion. The Board does not have

discretion to re-evaluate the evidence of Respondent's current fitness.

The Order is therefore made in violation of the AP A statutory provisions as asserted in

Section II of the Respondent's Motion for Rehearing addressed to the Board.

B. The Board lacks statutory authority to deny Respondent a licensed based on her misdemeanor criminal history.

The veterinary licensing act grants the Board discretion to deny a license to an applicant

who has been convicted of a felony or who has "engaged in dishonest or illegal practices in, or

connected with, the practice of veterinary medicine or the practice of equine dentistry. Texas

Occupations Code, Chapter 53, limits the Board's authority to take enforcement action against a

licensee or applicant due to their criminal history. The statute does not purport to and does not

expand the enforcement powers of the Board. The challenged order contains no finding that

Respondent engaged in "dishonest or illegal practices in, or connected with, the practice of

veterinary medicine or the practice of equine.dentistry." The Board's rule 22 TAC 575.50(a) is

beyond the Board's rulemaking authority and cannot support the Order denying Plaintiffs

application. The Order should therefore be reversed because the agency statutory authority to

deny the Plaintiffs application for the reasons stated in the Order and as set forth in Section III

ofthe Respondent's Motion for Rehearing addressed to the Board.

WHEREFORE, PREMISES CONSIDERED and for the reasons explained in this

Original Petition and attached Motion for Rehearing, Deborah Loren Hardie requests that the

Board be cited to appear and answer; and that upon final judgment, the Court reverse the Order

of Defendant Texas State Board of Veterinary Medical Examiners, and render judgment that the

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order denying Ms. Hardie's application for a license be reversed and remanded to the Board and

for other and further reliefto which she may be entitled.

Dated: January 20,2014.

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Respectfully submitted,

HULL, HENRICKS & MACRAE LLP 221 W. Sixth Street, Suite 960 Austin, Texas 78701 (512) 472-4554 telephone (512) 494-002 facsimile

By:-7~~~~~~~----­Susan Henricks State Bar No. 09475200

ATTORNEYS FOR DEBORAH LOREN HARDIE

Nov.13. 2013 1:07PM No. 0920 · P. 2 .. - --·"·'------~~~______:_~---;

SOAH DOCKET NO. 578-13-3633 TBVME DOCKETN0.13·059

TEXAS BOARD OF VETERINARY § BEFORE1HE MEDICAL EXAMINERS, Petitioner §

§ TEXAS BOARD OF v. §

§ VETERlNARY MEDICAL DEBORAH HARDIE, § Respondent § EXAMINERS

FINAL DECISION AND ORDER

This matter was heard by the Texas Board of Veterinary Medical Examiners ("Board") In open meeting on the 22nd day of October, 2013.

The Board finds that lifter proper IUld timely notice was given, the above-styled case was heard at the St!lte Office of Administrative. Heal'lngs by IUl Administrative Law Judge ("Al.J'') on June 19, 2013. Respondent Deborah Hardie ("Respondent") appeared and was represented by attorney Susan Henricks. The ALJ flied his Propos!j,l For Decision ("PFD") on August 8, 7.013 containing Findings of Fact and Conclusions of Law and finding that Respondent had violated T!!x, Dec. Coos§ 80!.402 (4). The PFD wa.~ properly served 011

all parties, who were given an opportunity to file exceptions and replies us purt of the administrative record. Staff for the Board timely filed exceptio!IS to the PFD and Respondent flied a late response to Staff's exceptions which was accepted by the ALl On August 16, 2013, the ALJ declined Petitioner's Exceptions and accepted R<:spondent's Exception that the PFD needed to include a detetmination about the fitnesg of Respondent to perform the d1rties of an equine dentist, The AL1 revised the original PFD to Include Finding:J of Fact 13 and 14.

The Board, after review and due considemtlon of the PFD, adopts the Findings of Fact and Conclusions of Law of the ALJ contained in the PFD and incorporates those Findings of Fact a11cl Conclusions of Law into this Final Order as :lf such were fully set out und separately stated in this Final Order, with the exception of the modified Findings of Fact, Conclusions of Law, and modified penalty set fot1h below. ·

A. Removing Findings ofF11ct No. 14

The Board does not adopt Finding of Fact No. 14 in the f'FD, which states:

"14. Even with her convictions in 2003, Applicant is otherwise fit to perform the duties and discharge the responsibilities of a llce!tsed equine dentist."

Reason for Modification:

This Finding of Fact is a misinterpretation and misapplication of the applicable law that was provided to the AL.T during the hearing. To begin witb, this Finding of FMt is not

EXHIBIT

l A

!·.

Nov. 13. 2013 1:07PM ______________ _;;.N-'-'-o.-'-'09c.=.20'---_P.'----='-3~--

a verifiable fact, but rather a legal conclusion and a~ such it is in the incorrect section of the PFD. However, even assuming that'thi~ was in the conclusions of law section of the PFD, the ALJ concludes in Finding of Fact No. 14 that Respondent is fit to perform the duties and discharge the responsib\lities of an equine dental provider. The Board, as the licensing authority in this matter, is explicitly given the authority to determine Respondent's fitness to perform the d\lties and discharge the responsibilities of a licensed equine dental provider by the Jangu~~ge of TEx. Dec. c;oor; § 53,023 which states: "In determining the t1tness to petform the duties and discharge the responsibilities of the licensed occupation of n person who has been convicted of a crime, the licensing authority shall consider, in addition to the factors listed in Section 53.022.'' Therefore, the ALI acted outside of his authol'ity and improperly assumed the role of the Board when he held in Finding of Fact No. 14 that Respondent was fit to perform the duties and dischll!'ge the responsibilities of a licensed equine dentist. Beeause the ALJ did not properly apply or interpret TEX. Occ. CODB § 53.023, the applicable law provided to the ALJ by the Board for the hearing, the Board may modlfy the Conclusion of Law pursuant to §2001 ,058(e) of the Administrative Procedures Act ("APA"), TEX. GOV'T. CobE Ch. 2001. The Board therefore removes the ALI's Finding of Fact 14.

B, Removing Conclusion of Law No. s

The Board does not adopt Conclusion of Law No, 5 in the PFD, which states:

"5, In making its final determination regarding eligibility, the Board has authority to issue a probated license. Code§ 801.40I(a)(3)."

Reason for Modification:

This Conclu.sion of Law ls a misinterpretation and misapplication of the applicable l,aw p1~Vided to the AU by the Board for the hearing, The ALJ expanded powers given to the Board under Texas Occupations Code, Chapter 801, the Texas Veterinary Licensing Act ("Act") to come to the conolu.slon that the Board has the power to issue Respondent a probated equine dental provider license. Section 801.40J(a)(3) of the Act states: "(a) If an applicant or license holder is subject to denial of a license or to disciplinary action under Section 801.402 of the Act, the board may: ... (3) place on probation a license holder or person whose license has been suspended." As an applicant for an equine dental provider license, Respondent is not a license holder nor has her license been suspended and as such Section 801.401(a)(3) of the Act, does not apply to Respondent. Addition~lly, Section 801.401 of the Act is the only authority that the Board has to take formal action against a person for violating the Boord's Rules or the Act and nowhere In Section 801.401 is there IUlY authority for the Board to issue any. sort of license much Jess a probated license, The Board's authority to issue licenses is encapsulated in Sections 801,251-SOI.264 of the Act and nowhere in those sections of the Act is the BoHrd granted the power to isstle a probated equine dental provider license. Because the ALJ did not properly apply or interpret agency rules, the Board may modify the Conclt1sion of Law pursuant to §2001.058(e) of the APA. The Board therefore removes the ALJ~s Concl\lsion of Law No. 5.

TSVME v. Hordle SOAHNo. 578·13·3633

Page 2Qf4

Nov.13. 2013 1:07PM ______________ _:No.0920_P. 4~---,-

C, All other Findings of Fact and Conclusions of Law contained in the Proposal for Decision that are not expressly modified by this Order Qre hereby ADOPTED and incorporated by reference in full in tbis Order.

l), Penalty Justification

The AU's Conclusion of Law No. 4 found that Respondent was convicted of crimes· that were directly related to fue praatice ofa llcensed equine dental provider and tbnt the Bol!Id therefore had the authority to deny Respondent's appllcation for an equine dental provider license. This was based on Finding of Fsct No. 6 which states that Respondent pled guilty to a misdemeanor charge of animal cn~elty of a horse and a misdemeanor charge of grand theft of a horse. Respondent also stipulated in Plaintiff's Ex, · t that her convictions directly related to the duties and responsibilities of an equine dental provider,

Under TEX. Occ. CoDE § S3.02I(a)(l), a licensing authority may disqualify a person from receiving a license who has been convicted of a crime that directly relates to the duties and responsibilities of the licensed occupation. Respondent's 2003 oonvictiollll are directly related to the duties and responsibilities of the practice of equine dentistry as was stipulated to by Respondent in Plaintiff's Ex. 1 and held by the ALJ in Conclusion of Law No, 4 frllerthe hearing,

Under TEx. Occ. CoDB § 801.40l(a)(l), the Board may refuse to issue a license to a persc>n who has violated Section 801.402 of tbe Act. Respondent's 2003 convictions are violations of Section 801.402(4) of the Act because they are illegal practices connected with the pl'actioe of equine dentistry as was stipulated to by Respondent in Plaintiff's Ex. 1 and held by the ALJ in Conplusion of Law No, 4 after tho hearing.

The Board is denying Respondent an equine dental provider license in accordance with TEX. Occ. Com~ §§ 53.02l(a)(I) and 80i.40l(a)(l). The point of the licensure of equine dental providers is to limit the people who engage in equine dontimry to those people that will not hl!Iffi the patient and thereby will not harm the property of membel's of the public. Respondent has previously en·gaged in actions that not only harmed the very species of animal that she asks the Board to iioense her to work ou, but also involved Respondent stealing that same species of animal from a person who entrusted her with the care of that animal. PFD at Finding of Fact No. 6. Respondent committed these crimes at a horse adoption agency In California where she also practiced equine dentistry, PFD at Finding of Fact No. 5, Respondent attrib11tes her work in horse adoption as the reason for her convictions fo1· animal cruelty and theft of a horse. PFD at 6. In fact, during the first of three years that Respondent was on probation for her animal cruelty and theft charges her probation was amended to add a provision that Respondent remain at least 150 yards away from an equine. P's Ex. 3. In addition, until April 2013 Respondent engaged in·equine dentistry here in Texas without a license and the deadline for when a license was required by statute waa September 1, 2012, PFD at Finding of Fact No. 8. Also, until at least June 17, 2013, Respondent advertised herself in Texas as a "horse dentist" when she was not a licensed equine dental provider, or a horse dentist, in Texas. PFD at Finding of Fact No.9.

TBVMll v. Hardie SOAHNo. 578-13·3633

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Nov. 13. 2013 1 :07PM. _____ ~ ________ _::..;No"-. O:...c9.::.:20_.:...:.P·--=-5 -------,-

Until at least June 17, 2013, Respondent was engaged in what appears to be a horse adoption agency similar to the horse adoption agency in California where she committed her crimes, PFD at Finding of Fact No, 9, Based on these facts, Respondent has both been convicted of Cl'itnes that are directly related to the practice of equine dentistry and is not fit to perform the duties and discharge the responsibilities oh licensed equine dental provider.

Respondent does not become fit to perform the duties and discharge the responsibilities of a licensed equine dental provider by the fact that her convictions are several years old and Respondent has not been charged or convicted of a crime since that time period, PFD at Findings of Fact Nos, I 0, Respondent also does not become fit because several friends and cllents believe that Respondent is an honest and tru:rtw01thy person who would never be cruel to an animal. PFD at Finding of Fact 11. Likewise, Respondent does not become fit because two veterinarians say that Respondent Is no threat to the public. PFD at Finding of Fact No. 12. These factors do not overcome Respondent's inability to follow rules or the fact that earlier this year Respondent engaged in the very same action of running a horse adoption agency that led to her convictions for animal cruelty and grand thetl of a horse. Therefore, Respondent Is unfit to perform the duties and discharge the responsibilities of a licensed equine dental provider in Texas and if the Board were to issue Respondent a license to practice equine dentistry then the Board would be failing ln its purpose to protect the public and theit animals ft'Om potential harm.

OllDER

NOW, THEREFORE, it is ORDERED that Respondent is denied a license to practice equine dentistry in the State of Texas,

1'BVMB v. Hardie ·soAH No. 578-13-3633

Poge4 of4

SOAH DOCKET NO. 578-13-3633 TBVME DOCKET NO. 13-059

TEXAS BOARD OF VETERINARY MEDICAL EXAMINERS

§ § § § § §

BEFORE THE STATE OFFICE

v. TEXAS BOARD OF VETERINARY

DEBORAH HARDIE MEDICAL EXAMINERS

RESPONDENT'S MOTION FOR REHEARING

TO THE TEXAS BOARD OF VETERINARY MEDICAL EXAMINERS:

DEBORAH LOREN HARDIE, Respondent, files this Motion for Rehearing, as provided

by Tex. Gov't Code, Sec. 2001.145-2001.146, requesting reconsideration of the Final Decision

and Order dated October 22,2013, as follows:

I.

INTRODUCTION

This contested case concerns the proposed denial of Deborah Loren Hardie's application

for licensure as an equine dental provider, based on evidence of Respondent's 2003

misdemeanor criminal history. Deborah Loren Hardie challenged the proposed denial and

requested a hearing to consider whether her license should be denied. The State Office of

Administrative Hearings conducted a hearing on June 19, 2013. The Administrative Law Judge

issued a Revised Proposal for Decision on August 16, 2013, after consideration of the

"Respondent's Response to Petitioner's Exceptions and Exceptions to the Proposal for

Decision." The Administrative Law Judge recommended that the Board approve Respondent for

a probationary license. The Texas Board of Veterinary Medical Examiners adopted a Final

Decision and Order, revising the proposed findings and conclusions made by the Administrative

I EXHIBIT

Law Judge and denying Ms. Hardie's license application. The Board's November 8, 2013 letter

to Respondent's counsel giving notice of the Final Decision and Order was postmarked on

November 12, 2013 and received on November 14, 2013. Respondent filed this Motion for

Rehearing on December 2, 2013.

II.

The Board's modification of the SOAH ALJ's proposed findings was made in violation of statutory provisions of the Administrative Procedure Act and is arbitrary, capricious and

characterized by abuse of discretion or clearly unwarranted exercise of discretion.

The Texas Administrative Procedure Act, Tex. Gov't Code Ann., Sec. 2001.058(e),

authorizes the Board of Veterinary Medical Examiners to change a finding of fact or conclusion

of law made by an administrative law judge, only if it determines:

(1) That the administrative law judge did not properly apply or interpret applicable law, agency rules, written policies provided under (2001.058) Subsection (c) or prior administrative decisions;

(2) That a prior administrative decision on which the administrative law judge relied is incorrect or should be changed; or

(3) That a technical error in a finding of fact should be changed.

Section 2001.058(e) also requires the agency to "state in writing the specific reason and legal

basis" for a change made to the finding of fact or conclusion of law.

The Board changed the administrative law judge's decision by entirely deleting Finding

of Fact No. 14 and Conclusion of Law No.5. The Board's specific reasons and "legal basis" for

these changes are legally incorrect, and are arbitrary, capricious and characterized by abuse of

discretion or clearly unwarranted exercise of discretion. The Board does not have discretion to

re-evaluate the evidence of Respondent's current fitness.

Finding of Fact No. 14 states that "Even with her convictions in 2003, Applicant is

otherwise fit to perform the duties and discharge the responsibilities of a licensed equine

dentist." This finding addresses the ultimate factual issue raised by the Board's allegation that

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Respondent is not fit to be licensed as an equine dental provider because of her 2003

misdemeanor convictions. A finding on the issue of her fitness is required by the terms of

Chapter 53, Tex. Occ. Code. Chapter 53 requires the Board to make a finding of fitness based

on consideration of underlying factual issues, such as the statements of persons who have been in

contact with the applicant and the amount of time elapsed since the criminal conduct occurred.

All of the factors the agency is required to consider under Sec. 53.023 are fact based. A

determination of fitness is therefore a factual determination akin to the determination required of

a jury deciding guilt or innocence of the accused in a criminal trial. The legal significance of the

determination of "fitness" does not remove it from the realm of a fact finder. A judge cannot

simply reject a jury's innocence finding and the Board cannot reject the ALJ's fitness finding.

The fitness determination is inherently subjective, as it depends not on the analysis or evaluation

of statutes, rules or legal principles but on the fact finder's evaluation of the credibility of

witnesses and the weight of the evidence presented. The board does not have the discretion to

second guess the ALJ' s finding on Respondent's fitness.

The Board's stated "legal reason" for rejecting Finding of Fact No. 14 is faulty because it

ignores the requirement that all contested case matters within its jurisdiction must be referred to

SOAH for hearing and preparation of a proposal for decision as required by Tex. Gov't Code,

Sec. 2003.021. The language of Chapter 53, directing the agency to consider certain factors in

determining Respondent's fitness, does not eliminate the requirement for a contested case

hearing conducted by SOAH, resulting in a proposal for decision. Chapter 53 plainly does not

authorize the Board to disregard the factual determinations of the ALJ. As stated in Sec.

200!3.021, the purpose and role of SOAH is to "separate the adjudicative function from the

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investigative, prosecutorial and policymaking functions in the executive branch in relation to

hearings that the office is authorized to conduct."

By rejecting Finding of Fact 14, the Board is usurping SOAR's defined role as the

independent fact finder whose findings may only be changed for a reason enumerated in

2001.058. The Board's "legal reason" is a circular argument that attempts to sidestep SOAH's

authority in disregard of the requirements of the Administrative Procedure Act.

The Board's elimination of Conclusion of Law No. 5 is a surprising about face in its

otherwise consistent assertion of its expansive authority. The Board makes no reference to its

200 l order where it issued a license and then suspended and probated the license on terms and

conditions, at the same time. The Board's Order in the case of J. Mark Beverly, was approved in

January 2001, acting under the authority of Tex. Occ. Code, Chapter 801. The plain terms of the

licensing act, Sec. 801.401(a)(3) clearly allow the Board to issue a license and to suspend and

probate the license at the same time. The Board does not point to any pre existing written

statement of applicable rules or policies, disallowing such action, as required by Sec.

2001.058(c) and the Board's denial of its power to issue a license and impose probationary terms

at the same time is arbitrary and capricious.

III.

The board lacks statutory authority to deny Respondent a license based on her misdemeanor criminal history.

The Board's detennination that Respondent should not be licensed because of her

misdemeanor convictions is made in the absence of any explicit statutory authority to do so and

is not supported by required underlying findings of fact necessary for a conclusion that

Respondent may be denied a license.

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Chapter 53 was originally adopted as a means to limit the discretion of a state agency to

take adverse action against a licensee or to deny an application for licensure based on the subject

person's criminal history. The Veterinary Licensing Act, Tex. Occ. Code, Section 801.402 sets

out the limited grounds for the Board to refuse to issue a license, as specified in Sec. 801.252 and

80 1.40 1. The Board's Order, in conclusion of Law No. 4, incorrectly holds that the Board has the

authority to deny Applicant's license application under either Tex. Occ. Code, Sec. 53.021(a)(l)

or Sec. 80 1.402(a).

Section 53.02l(a)(l) is not referred to in the veterinary licensing act as supplying

additional grounds to deny a license and there are no underlying findings of fact to support the

conclusion that Respondent engaged in "dishonest or illegal practices in, or connected with, the

practice of veterinary medicine or the practice of equine dentistry," as described in Sec.

801.40l(a). In fact, the Board made no ultimate statutory finding that Respondent engaged in

dishonest or illegal practices in, or connected with the practice of veterinary medicine. Rather,

Finding of Fact No. 13 specifically states that "No criminal charges were filed against her as

result of her equine dental practice." Respondent has never been licensed by any state to practice

veterinary medicine.

Section 801.402 only authorizes the Board to deny a license to an applicant convicted of

a felony. Respondent has never been convicted of a felony. The general language of Chapter 53,

requiring the Board to consider certain facts and circumstances relating to a criminal conviction

does not amend the statutory licensing standards in the veterinary licensing act. If the legislature

intended for the Board to consider misdemeanor convictions, in addition to felonies, it could

have easily said so, but it did not. For that reason, any reliance on the Board's rule 22 TAC,

Sec. 575.50(a) is mis-placed and the rule is beyond the Board's rulemaking authority.

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WHEREFORE, PREMISES CONSIDERED, Respondent prays that upon consideration

of this Motion for Rehearing, that it be granted and that the Board of Veterinary Medical

Examiners adopts all of the findings of fact and conclusions of law in the Revised Proposal for

Decision and that it enter an order issuing Respondent a license to practice equine dentistry and

suspending and probating the license on reasonable terms and conditions.

Respectfully submitted,

HULL HENRICKS LLP 221 W. Sixth St., Suite 960 Austin, Texas 78701 (512) 472-455 (512) 494-0 2 (fax)

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Texas State Office of Administrative Hearings using the document upload system via the SOAH website and served a true and correct copy of the foregoing to all counsel of record as follows:

Jonathan Crabtree Assistant General Counsel Texas Board of Veterinary Medical Examiners 333 Guadalupe Street, Tower III, Suite 810 Austin, Texas 78701

Dated December 2, 2013.

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