Appeals of Board Orders and Motions For Rehearing

Once the Texas State Board of Pharmacy enters a Board Order, the only legal recourse remaining to a Texas pharmacist or pharmacy is to appeal their case to the Travis County District Courts. Unfortunately, this is frequently necessary with Orders entered by the Texas Pharmacy Board because the Board almost always seeks to impose discipline on a licensee it determines has violated the Pharmacy Act, even in the face of an adverse decision from the State Office of Administrative Hearings. As discussed in our page dedicated to contested case hearings at SOAH, one of the unique features of administrative law is a state agency’s limited ability to change an Administrative Judge’s decision if it is in conflict with the Board’s interpretation of its own statutes and rules. The Texas State Board of Pharmacy is particularly notorious for exercising this discretion whenever possible to avoid an unfavorable result or a decision perceived as inimical to their policies.

The Texas Administrative Procedure Act (APA) governs the appeal of a final Order entered by the Texas Pharmacy Board. Its requirements are very strict, oftentimes confusing, and can easily trip up an attorney inexperienced in administrative appeals. Prior to even filing an appeal in Travis County District Court, a licensee is required to file a Motion for Rehearing with the Texas State Board of Pharmacy. A failure to file a Motion for Rehearing in a timely manner will bar a licensee from having their appeal heard by the Court: unless the pharmacist or pharmacy files a Motion for Rehearing within the timelines of the APA, the attorney representing the Board in District Court will be able to file a simple plea and have the licensee’s lawsuit thrown out for lack of jurisdiction. Therefore, it is critical to have the experienced representation of a qualified Texas license defense lawyer when appealing a Board Order.

Within the actual Motion for Rehearing, the pharmacist or pharmacy must reasonably identify their objections to the Texas Pharmacy Board’s Order and set forth their supporting legal and factual claims or else risk waiving their ability to argue these issues before the District Court. In theory, the idea behind the requirement for a Motion for Rehearing is to give the Pharmacy Board both notice that the affected party is dissatisfied with the Board’s decision and an outline for the agency of the reasons the licensee believes the Order can be successfully appealed to District Court. Importantly, the appealing licensee will only be allowed to argue the legal claims noticed and outlined in their Motion for Rehearing, with a few exceptions. If a claim was not raised in the Motion for Rehearing, the District Court will deem it to have been waived and will not allow the pharmacist or pharmacy to raise the argument in their appeal.

What to Expect After Filing a Motion for Rehearing

Once the Motion for Rehearing is filed, the Texas Pharmacy Board has forty-five days to issue a ruling; otherwise it is denied as a matter of law. In reality, the Board virtually never grants the Motion and will stand by its decision. At this juncture, the pharmacist or pharmacy can finally file their appeal in District, again subject to strict deadlines.

The authority of a District Court Judge to reverse a Texas Pharmacy Board Order is limited. In legal terms, an appeal of a Pharmacy Board Order is subject to substantial evidence review. This standard does not allow a District Court Judge to review the case anew and decide whether they would have reached the same decision as the Board. Rather, the Judge reviews the record created at SOAH and determines whether a reasonable mind could have reached the decision rendered by the Board. If so, the Board’s decision is supported by substantial evidence and will not be overturned. The Court also has the ability to reverse and remand a matter back to the Texas Pharmacy Board on the basis that the Order in part or as a whole is arbitrary and capricious, an abuse of discretion, characterized by one or more errors of law, outside the Pharmacy Board’s authority, and/or in violation of another statute, in addition to several other narrower grounds.

The standard of review in District Court favors the Texas Pharmacy Board and is strictly proscribed by the Texas Administrative Procedure Act. This burden frequently catches attorneys inexperienced in administrative law unprepared and unaware of what will have to be shown to prevail in an appeal.

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The Texas pharmacy board attorneys at the Leichter Law Firm have handled numerous appeals before both the Texas State Board of Pharmacy as well as other Texas licensing Boards such as the Texas Medical Board and Texas Board of Nursing. Our lawyers know how to craft and argue a case successfully so that a pharmacist or pharmacy harmed by an Order entered by the Texas State Board of Pharmacy, usually over the findings of an Administrative Law Judge, can receive a positive outcome. Sometimes the only way to prevail against the Texas State Board of Pharmacy is to receive a judgment from the District Court forcing the Board to act in the licensee’s favor.

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