Jorge R. Guevara, M.D. v. Texas Medical Board

ACCEPTED
15-25-00036-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
11/7/2025 3:47 PM
CHRISTOPHER A. PRINE
No. 15-25-00036-CV CLERK
FILED IN
15th COURT OF APPEALS
In the Court of Appeals AUSTIN, TEXAS
Fifteenth Court of Appeals District 11/7/2025 3:47:49 PM
CHRISTOPHER A. PRINE
Clerk
JORGE R. GUEVARA, M.D.,
Appellant

v.

TEXAS MEDICAL BOARD,
Appellee

On Appeal from Cause No. D-1-GN-23-007371
In the 353rd Judicial District Court, Travis County
The Honorable Sherine Thomas, Judge Presiding

APPELLANT’S REPLY BRIEF

Jason Davis
State Bar No. 00793592
E-mail: jdavis@dslawpc.com
Hayley Ellison
State Bar No. 24074175
E-mail: hellison@dslawpc.com
DAVIS & SANTOS, PLLC
719 S. Flores Street
San Antonio, Texas 78204
Tel: (210) 853-5882
Fax: (210) 200-8395

Attorneys for Appellant

ORAL ARGUMENT NOT REQUESTED
Table of Contents

Table of Contents......................................................................................... 2

Index of Authorities ..................................................................................... 3

Summary of the Reply.................................................................................. 5

Reply........................................................................................................... 6

I. The TMB exceeded the scope of its delegated authority by
disciplining Dr. Guevara for conduct unconnected with his
medical practice. ........................................................................................... 6

A. Dr. Guevara’s performance as RSO was not
connected with his practice of medicine. ............................ 7

B. Dr. Guevara’s performance as MAB’s owner was not
connected with his practice of medicine. ............................ 8

C. The TMB’s authorities are inapposite. ............................. 10

II. Substantial evidence does not support the TMB’s findings. ................. 12

III. The imposition of penalties was unreasonable, arbitrary,
and capricious.............................................................................................. 14

Prayer ....................................................................................................... 17

Certificate of Compliance ........................................................................... 18

Certificate of Service .................................................................................. 18

2
Index of Authorities
Cases
Aleman v. Tex. Med. Bd.,
573 S.W.3d 796 (Tex. 2019) ...............................................................passim

Baptist Mem’l Hosp. Sys. v. Sampson,
969 S.W.2d 945 (Tex. 1998) ...................................................................... 9

Bd. of L. Exam'rs v. Stevens,
868 S.W.2d 773 (Tex. 1994) .................................................................... 16

City of El Paso v. Pub. Util. Comm’n,
883 S.W.2d 179 (Tex. 1994) .................................................................... 14

Dunn v. Pub. Util. Comm’n,
246 S.W.3d 788 (Tex. App.—Austin 2008, no pet.) .................................. 14

Lane v. Tex. Med. Bd.,
No. 03-21-00593-CV, 2023 WL 4214945
(Tex. App.—Austin June 28, 2023, pet. denied) ....................................... 10

Save Our Springs All., Inc. v. TCEQ,
713 S.W.3d 308 (Tex. 2025) .................................................................... 11

Tex. Dep’t of Ins. v. State Farm Lloyds,
260 S.W.3d 233 (Tex. App.—Austin 2008, no pet.) ............................. 14, 16

Tex. Health Facilities Comm’n v. Charter-Med.-Dall., Inc.,
665 S.W.2d 446 (Tex. 1984) .................................................................... 11

3
Statutes
TEX. GOV’T CODE §§
2001.141(b)............................................................................................. 11
2001.1721 ................................................................................................. 7

TEX. OCC. CODE §§
157.001(a) ................................................................................................ 9
157.001(b) ................................................................................................ 9
157.005 .................................................................................................... 9
164.051(a) ................................................................................................ 6
164.053 ........................................................................................... 6, 8, 11
601.002 .................................................................................................. 12
Regulations
25 TEX. ADMIN. CODE §§
289.230(r) ............................................................................................... 12
289.230(t) .......................................................................................... 13, 14
289.230(u)–(w)........................................................................................ 13
289.252(f) ................................................................................................. 7

4
Summary of the Reply

The central question in this appeal is whether the Texas Medical Board

(“TMB”) exceeded its legislatively delegated authority by disciplining a

physician for conduct unrelated to his practice of medicine. The answer is yes.

In its appellate brief, the TMB concedes it disciplined Dr. Jorge Guevara

exclusively for his conduct as the owner of a multi-discipline medical office

(“MAB”) and as its radiology department’s Radiation Safety Officer (“RSO”),

a position that may be held by anyone with a bachelor’s degree or equivalent

training. Dr. Guevara, however, practices family medicine and did not treat

patients in MAB’s radiology department.

The Supreme Court of Texas has held the TMB abuses its discretion by

disciplining a physician without statutory authority to do so. See Aleman v. Tex.

Med. Bd., 573 S.W.3d 796, 806 (Tex. 2019). By disciplining a physician for

conduct not “connected with” his practice of medicine, the TMB exceeded the

authority delegated to it by the legislature. The trial court affirmed the TMB’s

overreach, and this Court should reverse.

5
Reply

I. The TMB exceeded the scope of its delegated authority by
disciplining Dr. Guevara for conduct unconnected with his medical
practice.

The TMB may discipline a physician for “engaging in unprofessional

conduct that [i]s likely to deceive or defraud the public.” TEX. OCC. CODE §§

164.051(a)(1), 164.052(a)(5). That includes violating state or federal law if the

conduct is “connected with the practice of medicine in a manner that makes it

likely to deceive or defraud the public.” See Aleman, 573 S.W.3d at 804

(interpreting TEX. OCC. CODE § 164.053(a)(1)). The supreme court has held the

TMB abuses its discretion by disciplining a physician based on an “overly broad

interpretation” of this authority. Id. at 805–06.

In its brief, the TMB concedes it did not discipline Dr. Guevara for his

conduct as a physician but rather entirely for his conduct as MAB’s RSO and

owner. See Appellee Br. at 19. The TMB argues Dr. Guevara’s performance in

these non-physician roles was nevertheless connected with his practice of

medicine in a manner likely to deceive or defraud the public. As it did in the

Aleman case, the TMB is taking an overly expansive view of its own delegated

authority.

6
A. Dr. Guevara’s performance as RSO was not connected with
his practice of medicine.

An RSO does not practice medicine. See 25 TEX. ADMIN. CODE §

289.252(f)(7)(A)–(C) (an RSO may be qualified with only a bachelor’s or

master’s degree or 2 years of applied health physics experience). In fact, an RSO

need not even be present when medical treatment is provided in a radiology

department. See id. § 289.252(f)(5), (6) (requiring the RSO to be on site only

“periodically” and in emergencies).

The TMB argues Dr. Guevara’s purported failures as an RSO are

necessarily connected to his practice of medicine because his “responsibilities as

an RSO and a physician overlapped.” Appellee Br. at 20. But the TMB does not

explain how those responsibilities overlapped. And even if they did overlap, the

TMB appears to take the position that any time a physician serves as an RSO,

he may be disciplined as a physician for any alleged failures in that non-

physician role. That’s like saying a lawyer should be subject to disbarment for

making bad calls as a peewee football referee.

There is simply no statutory authority justifying such an expansive view

of the TMB’s regulatory authority.1 Further, the practical impact of the TMB’s

1
Tellingly, the TMB cites Texas Government Code section 2001.1721 (“Judicial
Review of Question of Law”), a tacit admission that whether the TMB’s authority extends
that far is a question of law subject to de novo review. See TEX. GOV’T CODE § 2001.1721(a)

7
decision will be to discourage physicians from serving as RSOs or in any other

role not reserved exclusively for physicians.

B. Dr. Guevara’s performance as MAB’s owner was not
connected with his practice of medicine.

The TMB also claims a physician may be disciplined for the conduct of

other physicians working for a medical practice he owns. But the TMB does not

identify anything authorizing it to discipline a physician for the conduct of

another physician.

Instead, the TMB appears to rely on Occupations Code section

164.053(a), which defines unprofessional or dishonorable conduct likely to

deceive or defraud the public as including, among other things: “delegate[ing]

professional medical responsibility or acts to a person if the delegating physician

knows or has reason to know that the person is not qualified by training,

experience, or licensure to perform the responsibility or acts.” TEX. OCC. CODE

§ 164.053(a)(9); see also Appellee Br. at 19. The TMB apparently argues Dr.

Guevara knew or should have known Dr. Allan Kapilivsky, MAB’s lead

interpreting physician, was not qualified to perform that role.

(enacted in 2025 to clarify that courts reviewing agency decisions review questions of law de
novo, without giving deference to any legal determination made by a state agency).

8
Dr. Guevara, however, did not “delegate professional medical

responsibility or acts” to Dr. Kapilivsky. The Occupations Code gives a

physician authority to delegate certain medical acts to “a qualified and properly

trained person acting under the physician’s supervision” who “does not represent

to the public that [he or she] is authorized to practice medicine.” TEX. OCC. CODE §

157.001(a)(2) (emphasis added). In such cases, the delegating physician

“remains responsible for the medical acts” delegated, and the person to whom

the acts are delegated is not considered to be practicing medicine. Id. §§

157.001(b), 157.005.

Dr. Kapilivsky was not Dr. Guevara’s delegee but rather a licensed

physician responsible for his own patients. See CR 227 (TMB brief on the merits

acknowledging Dr. Kapilivsky was MAB’s lead interpreting physician). While

a physician’s employer may be civilly liable for his negligence in some

circumstances,2 the TMB does not identify any basis for imposing professional

discipline upon a physician’s employer simply because he also happens to be a

physician.

2
See, e.g., Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 948 (Tex. 1998) (“[A]
hospital may be vicariously liable for the medical malpractice of independent contractor
physicians when plaintiffs can establish the elements of ostensible agency.”).

9
C. The TMB’s authorities are inapposite.

The TMB attempts to distinguish the supreme court’s seminal decision in

Aleman, in which it expressly criticized the TMB’s “overly broad interpretation”

of its own authority. 573 S.W.3d at 805. According to the TMB, Aleman is unlike

this case because Dr. Aleman’s “oversight” was merely administrative and

would not harm patients. Appellee Br. at 21–22. In contrast, the TMB argues

Dr. Guevara’s purported failures “likely harmed his patients.” Id. at 22. But

there is no evidence anyone was harmed by Dr. Guevara’s performance as RSO.

The TMB also relies on the Austin Court of Appeals’ decision in Lane v.

Texas Medical Board, in which the TMB disciplined a psychiatrist in private

practice who ignored a patient’s repeated demands for return of her medical

records. No. 03-21-00593-CV, 2023 WL 4214945, at *1 (Tex. App.—Austin

June 28, 2023, pet. denied). Distinguishing Aleman, the court concluded

maintaining patient records is plainly connected with the practice of medicine,

and a foreseeable consequence of failing to return those records upon request is

that the patient’s next physician will be deceived by lack of information. Id. at

*8.

10
Unlike the psychiatrist in Lane, however, Dr. Guevara did not neglect any

duties to patients because he did not treat any patients in MAB’s radiology

department—that was Dr. Kapilivsky’s job.

The TMB nevertheless argues Dr. Guevara’s purported failures as RSO

“likely harmed” his family-practice patients because he referred some of those

patients to MAB’s radiology department. Appellee Br. at 22. The TMB,

however, does not explain how referring patients to another licensed physician

for treatment in a different practice area can subject him to discipline.

Indeed, Occupations Code section 164.053’s laundry list of conduct likely

to deceive or defraud the public does not include referring patients to other

physicians. See TEX. OCC. CODE § 164.053(a). If it did, that would effectively

impose a duty on every physician to independently assess the qualifications of

another physician in another practice area before referring a patient to him or

risk discipline for the other physician’s treatment. That is not (and should not

be) the law.

By disciplining Dr. Guevara for conduct unconnected with his practice of

medicine, the TMB exceeded the bounds of its delegated authority. The trial

court erred by ratifying that overreach. See Aleman, 573 S.W.3d at 806 (holding

11
the TMB abuses its discretion by disciplining a physician without statutory

authority to do so). This Court should reverse.

II. Substantial evidence does not support the TMB’s findings.

Even if the TMB had not exceeded its authority (it did), its final order is

fatally deficient for failing to contain factual findings that are “‘clear, specific,

non-conclusory, and supportive of the ultimate statutory findings.’” Save Our

Springs All., Inc. v. TCEQ, 713 S.W.3d 308, 327 (Tex. 2025) (quoting TEX. GOV’T

CODE § 2001.141(b); Tex. Health Facilities Comm’n v. Charter-Med.-Dall., Inc., 665

S.W.2d 446, 452 (Tex. 1984)).

In its brief, the TMB does not address this deficiency head-on. It instead

attempts to show its work after the fact, arguing Dr. Guevara, “as MAB’s RSO,”

failed to ensure MAB’s radiology department personnel were adequately trained

and complying with regulatory requirements. See Appellee Br. at 25 (emphasis

added). Again, whether Dr. Guevara was a competent RSO has nothing to do

with whether he failed to use proper diligence in his professional practice as a

physician.

The TMB identifies several purported failures of Dr. Guevara in his role

as RSO. For instance, the TMB argues Dr. Guevara failed to ensure a licensed

physician supervised MAB’s radiology technicians, citing only the definitions of

12
“medical radiologist technologist” and “practitioner” in the Occupations Code.

Id. at 25 (citing TEX. OCC. CODE § 601.002(6), (7)). The TMB also argues Dr.

Guevara failed as MAB’s RSO to ensure MAB employed qualified personnel,

citing 25 TEX. ADMIN. CODE § 289.230(r)(2). Id. at 28. That provision, however,

addresses prior approval for self-referral mammography, not qualified

personnel. See 25 TEX. ADMIN. CODE § 289.230(r)(2).

Notably, the TMB does not cite any statute or regulation requiring an

RSO to ensure a licensed physician supervises radiology technicians or employs

qualified personnel. But even if those are an RSO’s duties and assuming arguendo

that the evidence demonstrates Dr. Guevara was deficient in performing them,

the TMB’s findings of fact do not tie that purported deficiency to Dr. Guevara’s

practice of medicine.

The TMB next argues Dr. Guevara failed to ensure MAB’s radiology

department established and maintained a quality assurance and control

program. Id. at 26 (citing TEX. OCC. CODE § 289.230(u)–(w)). But the TMB

acknowledges that responsibility for the quality assurance program may be

assigned to a lead interpreting physician, and the evidence shows MAB assigned

that responsibility to Dr. Kapilivsky. CR 187 (citing AR TMB Ex. 42 at

TMB0001837–44, AR TMB Ex. 44 at TMB0002055). Even if, as the TMB argues,

13
Dr. Guevara failed to ensure Dr. Kapilivsky did his job, that has nothing to do

with Dr. Guevara’s practice of medicine in another department.

Finally, the TMB argues Dr. Guevara failed as MAB’s RSO to ensure

MAB communicated mammography results to patients within 30 days, citing

25 TEX. ADMIN. CODE § 289.230(t). See Appellee Br. at 28, 30. That provision,

however, relates to operating and safety procedures for employees. See 25 TEX.

ADMIN. CODE § 289.230(t). Regardless, the evidence is uncontroverted that Dr.

Guevara is not a radiologist. CR 198 (citing AR HOM at 57:16–58:16). Assessing

imaging quality and supervising technologists was not part of Dr. Guevara’s

medical practice. CR 198 (citing AR HOM at 57:16–58:16); see also CR 35 ¶ 8 (DSHS

FOF 14).

The TMB therefore has not demonstrated any basis to discipline a

physician for the deficiencies of a radiology practice in which he does not

practice as a physician. The TMB’s finding that Dr. Guevara was not diligent in

his practice of medicine is therefore unsupported by substantial evidence and is

arbitrary and capricious. See Save Our Springs, 713 S.W.3d at 327.

III. The imposition of penalties was unreasonable, arbitrary, and
capricious.

Even if there were substantial evidence supporting the TMB’s decision

(there isn’t), the penalty assessed would still be arbitrary and capricious because

14
it is unreasonable. See Tex. Dep’t of Ins. v. State Farm Lloyds, 260 S.W.3d 233, 245

(Tex. App.—Austin 2008, no pet.) (“[A]n agency decision may be found to be

arbitrary and capricious . . . if the agency reached an unreasonable result.”)

(citing City of El Paso v. Pub. Util. Comm’n, 883 S.W.2d 179, 184 (Tex. 1994);

Dunn v. Pub. Util. Comm’n, 246 S.W.3d 788, 791 (Tex. App.—Austin 2008, no

pet.)).

The penalty assessed in this case is unreasonable because it bars Dr.

Guevara from continuing to own his own business. To comply, he must either

divest from MAB entirely, or MAB must close its radiology department. This

penalty actually punishes MAB the business beyond what the Texas Department

of State Health Services found was appropriate following its own investigation.

See CR 189 (citing AR TMB Ex. 44 at TMB0002061–62) (TDSHS assessed an

administrative penalty and MAB promptly paid it).

The TMB responds that the penalty is appropriate because it was

“tailored” to prevent the “risk to patient health [posed by Dr. Guevara] when

being associated with imaging services.” Appellee Br. at 32. Again, Dr. Guevara

is not a radiologist and did not practice medicine in MAB’s radiology

department. CR 198 (citing AR HOM at 57:16–58:16); see also CR 35 ¶ 8 (DSHS FOF

14). The TMB nevertheless argues Dr. Guevara’s family-medicine practice was

15
“directly connected” to the radiology department’s failings because he referred

patients to it. Appellee Br. at 32–33.

But even barring Dr. Guevara from owning MAB or its radiology practice

would not preclude him from referring patients to radiology (including at MAB).

If merely referring patients to MAB’s radiology department was Dr. Guevara’s

only professional failure, then the TMB’s penalty does not address or remedy

that failure at all.

Further, the TMB’s reliance upon Board of Law Examiners v. Stevens is

misplaced. See Appellee Br. at 35 (citing Bd. of L. Exam’rs v. Stevens, 868 S.W.2d

773, 777–78 (Tex. 1994)). In that case, the court concluded the board of law

examiners’ determination of a candidate’s character and fitness is a decision best

committed to the board’s discretion. Stevens, 868 S.W.2d at 778. The Stevens

decision does not, however, absolve the TMB (or any other state agency) of its

obligation to impose only reasonable sanctions. See State Farm Lloyds, 260

S.W.3d at 245. The TMB failed to do so here.

Because the penalty assessed in this case is unreasonable in light of the

conduct at issue, the TMB’s decision is arbitrary and capricious. See id. This

Court should set it aside.

16
Prayer

Courts must reverse any agency decision that is an abuse of discretion, is

unsupported by substantial evidence, or is arbitrary, capricious, or unreasonable.

The TMB’s final order is all these things, and this Court should reverse and

vacate it in its entirety.

Dated: November 7, 2025.

Respectfully submitted,

DAVIS & SANTOS, PLLC

By: /s/Hayley Ellison
Jason Davis
State Bar No. 00793592
E-mail : jdavis@dslawpc.com
Hayley Ellison
State Bar No. 24074175
E-mail: hellison@dslawpc.com
719 S. Flores Street
San Antonio, Texas 78204
Tel: (210) 853-5882
Fax: (210) 200-8395

Attorneys for Appellant

17
Certificate of Compliance

Pursuant to Texas Rule of Appellate Procedure 9.4, I certify that this brief

contains 2,524 words.

/s/Hayley Ellison________________
Hayley Ellison

Certificate of Service

Pursuant to Texas Rule of Appellate Procedure 9.5, I certify that on

November 7, 2025, I served a true and correct copy of this document on the

following parties and counsel of record via the e-file system:

Kathy Johnson
E-mail: Kathy.Johnson@oag.texas.gov
Ted Ross
E-mail: Ted.Ross@oag.texas.gov
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548
Austin, Texas 78711
Tel.: (512) 475-4191
/s/Hayley Ellison________________
Hayley Ellison

18
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Devin Rivera-Duque on behalf of Hayley Ellison
Bar No. 24074175
drivera-duque@dslawpc.com
Envelope ID: 107817990
Filing Code Description: Response
Filing Description: Appellant's Reply Brief
Status as of 11/7/2025 3:51 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Jason M.Davis jdavis@dslawpc.com 11/7/2025 3:47:49 PM SENT

Ted Ross 24008890 Ted.Ross@oag.texas.gov 11/7/2025 3:47:49 PM SENT

Jeff Lutz jeff.lutz@oag.texas.gov 11/7/2025 3:47:49 PM SENT

Hayley Ellison Hellison@dslawpc.com 11/7/2025 3:47:49 PM SENT

Katherine Johnson 24126964 kathy.johnson@oag.texas.gov 11/7/2025 3:47:49 PM SENT