TEXAS STATE BOARD OF PHARMACY
SOAH Contested Case Hearings
If a pharmacist or pharmacy’s case has not been dismissed or settled through an Agreed Order, it will eventually be set for a contested case hearing at the State Office of Administrative Hearings (SOAH). SOAH is an independent state agency comprised of several dozen Administrative Law Judges (ALJs) whose sole job is to hear administrative matters before various state agencies including the Texas State Board of Pharmacy.
A SOAH contested case hearing is a full trial that includes witnesses testifying and the admission of evidence. Subject to some exceptions, the Judge will apply the Texas Rules of Evidence along with SOAH’s own rules of procedure and conduct the hearing like most civil trials in Texas. Following the hearing, the Administrative Law Judge will issue a Proposal for Decision containing findings of fact and conclusions of law and providing a recommendation to the Pharmacy Board as to how the case should be resolved. The ALJ is then invited to present their decision to the full Texas State Board of Pharmacy at an upcoming meeting and a final Order is entered by the Board.
Any pharmacist or pharmacy who has been notified that their case is set for an administrative trial at SOAH should seek experienced legal counsel. The Texas State Board of Pharmacy will be represented by one or more of their Staff attorneys whose sole job is to win a favorable decision allowing the Board to impose the sought disciplinary sanction. Licensees who represent themselves pro se or are represented by an otherwise capable lawyer unfamiliar with SOAH and the administrative process consistently receive worse results. Therefore, the assistance of an experienced Texas license defense lawyer is critical in these situations.
Administrative Law Judges and the Texas State Board of Pharmacy
One of the unique features of administrative law is a state agency’s limited authority to depart from the findings and recommendations of the Administrative Law Judge. This includes the ability to reverse a decision on the basis that the Judge incorrectly applied Board law or policy. This provision is frequently used by the Texas Pharmacy Board to undercut decisions favorable to the licensee and impose discipline contrary to the Administrative Law Judge’s findings.
Existing case law also gives the Pharmacy Board final say on the issue of sanctions: Even if the Judge recommends against discipline or advocates for a lesser sanction, the Board retains authority to impose discipline as it sees fit so long as there is a violation of the Pharmacy Act.
Because the Texas Pharmacy Board has substantial leeway to depart from a decision that is favorable to the pharmacist or pharmacy, it is crucial to approach a case from the outset with an eye to receiving the kind of factual findings which will preclude the Board from ignoring a Judge’s proposal for decision. This requires intimate familiarity with the Texas Pharmacy Board’s rules and statutes as well as the limits to the Board’s ability to modify certain findings if made by the Judge.
At the very inception of a client’s case it is crucial to determine what findings are necessary to achieve a successful result and then tailor the presentation of testimony and evidence, as well as the rebuttal of the Board’s witnesses and evidence, accordingly. Otherwise, a pharmacist or pharmacy could easily see a favorable SOAH decision rendered irrelevant by the Pharmacy Board’s entry of a contrary Order pursuant to their discretion as an administrative agency.
The pharmacy license defense attorneys at the Leichter Law Firm are experienced litigators before SOAH against both the Texas State Board of Pharmacy and other Texas licensing agencies such as the Texas Medical Board, Texas Board of Nursing, Texas Department of Aging and Disability Services, Texas Department of Insurance, and Texas Real Estate Commission. A sample of the contested case hearings tried and won by our administrative law attorneys can be found elsewhere on our website.
Additionally, as part of our boutique practice dedicated to defending licensed professionals and their businesses, our attorneys’ litigation practice extends to civil and criminal courts throughout Texas, both state and federal. Our lawyers know how to approach a case to achieve a favorable result which will stand firm when it is presented to the Texas Pharmacy Board for a final decision. Contact our Texas license defense attorneys today at 512-495-9995 to speak with a qualified member of our legal team and learn more about how we can help you defend yourself in this difficult situation.