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The Texas State Board of Pharmacy, and In Their Official Capacities Only, Gay Dodson v. Tiana Jean Witcher

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D I S S E N T I N G OPINION

The only issue in this appeal is the sanction imposed against appellee Tiana Jean Witcher by the Texas State Board of Pharmacy. The Board’s sanction against Witcher-suspending her Texas pharmacy license-was within the statutory range of punishment and consistent with past precedent and expressed policy concerns. Nonetheless, the majority concludes that the Board imposed the sanction based upon an invalid rule-a binding “reciprocal-sanctions policy.” Because the record supports that the Board did not have a binding policy and that it properly considered the facts and circumstances of this case, I respectfully dissent.

Section 2001.003(6) of the government code defines a rule to mean a “state agency statement of general applicability.” Tex. Gov’t Code Ann. § 2001.003(6) (West 2008). As the majority recognizes, for an agency statement to be a rule, it must “bind the agency or otherwise represent its authoritative position in matters that impact personal rights.” Texas Dep’t of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691, 703 (Tex. App.-Austin 2011, no pet.); see Slay v. Texas Comm’n on Envtl. Quality, 351 S.W.3d 532, 546 (Tex. App.-Austin 2011, pet. denied) (noting that “core concept [of rule] is that the agency statement must in itself have a binding effect on private parties”).

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