Opinion
NO. 03-16-00549-CV NO. 03-17-00513-CV
04-27-2018
Kristen Lindsey, D.V.M., Appellant v. Texas State Board of Veterinary Medical Examiners, Appellee Kristen E. Lindsey, D.V.M., Appellant v. Texas State Board of Veterinary Medical Examiners, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GN-16-001508 , HONORABLE KARIN CRUMP, JUDGE PRESIDING FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. D-1-GN-16-005514 , HONORABLE KARIN CRUMP, JUDGE PRESIDING MEMORANDUM OPINION
These two appeals arise from the disciplinary proceeding filed against appellant Kristen Lindsey, D.V.M., by appellee the Texas State Board of Veterinary Medical Examiners. In cause number 03-16-00549-CV, Lindsey appeals from the trial court's judgment denying her motion for summary judgment, granting the motion for summary judgment filed by the Board, and dismissing her suit challenging the Board's authority to bring its disciplinary action. In cause number 03-17-00513-CV, she appeals from the trial court's judgment affirming the Board's final decision in the disciplinary proceeding. Because the facts underlying both appeals are the same, we are considering the appeals together. As explained below, we will affirm both of the trial court's judgments.
Factual and Procedural Background
The facts involved in this case are known to the parties, and we will therefore only describe the underlying events to the extent necessary for our analysis. See Tex. R. App. P. 47.1. Our recitation of the facts is taken from the clerk's records filed in both appeals and from the administrative record filed as an exhibit in cause number 03-17-00513-CV.
In 2015, Lindsey, a licensed veterinarian, killed a cat on her property by shooting it through the head with a bow and arrow. Although Lindsey believed the cat to be a feral cat she had earlier seen fighting with her cat and defecating in her horse feeders, the evidence indicated that the cat was instead Tiger, a neighbor's pet, and not a stray or feral cat. Lindsey posted on Facebook a photo of herself holding up the dead cat by the arrow, along with a caption stating, "My first bow kill [cat emoticon] lol. The only good feral tomcat is one with an arrow through it's [sic] head! Vet of the year award ... gladly accepted [crying/laughing emoticon]." According to the Board, the photo was "shared on numerous social media websites, and the story was reported on several news outlets," resulting in the Board receiving more than 700 formal complaints and more than 27,000 emails about the incident.
In 2016, the Board initiated disciplinary proceedings against Lindsey before the State Office of Administrative Hearings (SOAH), seeking to revoke her license and alleging that she had violated Sections 801.402(4) and (6) of the Veterinary Licensing Act and Administrative Rule 573.4. See Tex. Occ. Code § 801.402(4), (6); 22 Tex. Admin Code § 573.4 (2018) (Tex. Bd. of Veterinary Med. Exam'rs, Adherence to the Law). While that proceeding was pending, Lindsey filed a petition for declaratory judgment and equitable relief in the trial court, asserting that the Board lacked the authority to discipline her because it only had authority to do so in cases involving either the practice of veterinary medicine or conduct amounting to cruelty to animals that results in a conviction under the penal code. See Tex. Penal Code § 42.092 (animal cruelty). Because she had not been convicted of animal cruelty and, in fact, a grand jury had declined to indict her for such a charge, she contended the Board was without authority to discipline her for killing the cat. She further asserted that the rules under which the Board was seeking to discipline her were invalid because they were an unlawful expansion of the Board's powers to regulate the practice of veterinary medicine. Lindsey and the Board filed competing motions for summary judgment, and the trial court granted judgment in favor of the Board, dismissing Lindsey's suit for declaratory relief. Lindsey appealed that judgment in cause number 03-16-00549-CV.
The record establishes that a grand jury returned a "no bill" after being presented with charges of animal cruelty against Lindsey, determining that there was insufficient evidence to charge her with a crime.
Meanwhile, the administrative-licensing action was proceeding, with SOAH's administrative law judges (ALJs) issuing a proposal for decision and findings of fact and conclusions of law. The Board adopted the proposal, including the findings and conclusions with one change not relevant to this cause, and issued a final order suspending Lindsey's license for five years, with four of those years probated. After the Board denied her motion for rehearing, Lindsey filed a petition for judicial review in the trial court. She asserted that the Board erred in adopting several of the findings and conclusions and argued again that the Board lacked the authority to discipline her under the circumstances presented. The trial court held a hearing and signed a final judgment stating that, having considered the pleadings and the administrative record, it was affirming the Board's final order. Lindsey appealed that judgment in cause number 03-17-00513-CV.
Standard of Review
Lindsey argues in both appeals that the rules relied upon by the Board to proceed against her license are invalid because they do not comport with their authorizing statute, exceed the Board's statutory authority, exceed and unlawfully expand the Board's authority, and deprive her of her constitutional protections. She further argues in her second appeal that the trial court erred in affirming the Board's order because the record contains insufficient evidence to support several of the Board's findings of fact and because the Board erroneously reached certain conclusions of law.
A state agency has "only those powers expressly conferred upon it by the Legislature," but "when the Legislature expressly confers a power on an agency, it also impliedly intends that the agency have whatever powers are reasonably necessary to fulfill its express functions or duties." Public Util. Comm'n v. City Public Serv. Bd., 53 S.W.3d 310, 316 (Tex. 2001). However, an agency may not "exercise what is effectively a new power, or a power contradictory to the statute, on the theory that such a power is expedient for administrative purposes." Id. "An agency's construction of a statute that it is charged with enforcing is entitled 'to serious consideration by reviewing courts, so long as that construction is reasonable and does not contradict the plain language of the statute.'" Texas Orthopaedic Ass'n v. Texas State Bd. of Podiatric Med. Exam'rs, 254 S.W.3d 714, 719 (Tex. App.—Austin 2008, pet. denied) (quoting Employees Ret. Sys. v. Jones, 58 S.W.3d 148, 151 (Tex. App.—Austin 2001, no pet.)).
When a party challenges the validity of an agency's rule, we presume that the rule is valid, and the challenging party bears the burden of demonstrating the rule's invalidity. Harlingen Family Dentistry, P.C. v. Texas Health & Human Servs. Comm'n, 452 S.W.3d 479, 481 (Tex. App.—Austin 2014, pet. dism'd). To show a rule is facially invalid, the challenger must show that the rule contravenes specific statutory language; is counter to the statute's general objectives; or imposes additional burdens, conditions, or restrictions in excess of or inconsistent with the relevant statutes. Id. In determining whether an agency's rule exceeds the agency's statutory authority, we look to whether the rule complies with the general objectives of the applicable enabling statute. Jones, 58 S.W.3d at 151; see Texas Orthopaedic Ass'n, 254 S.W.3d at 719 ("we must ascertain whether the rule is contrary to the relevant governing statutes or whether the rule is in harmony with the general objectives of the statutes involved"). "That determination requires us to look not only at a particular provision, but to all applicable provisions," and in construing the statute, we are to determine and give effect to the legislature's intent. Jones, 58 S.W.3d at 151 (quoting National Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000)); see Harlingen Family Dentistry, 452 S.W.3d at 481 ("We look to the entire act in determining the legislature's intent with respect to a specific provision."). If a rule lacks supporting statutory authority, it is void. Texas Orthopaedic Ass'n, 254 S.W.3d at 719. The doctrine of expressio unius est exclusio alterius, which provides that the express mention or enumeration of one person, thing, consequence or class is equivalent to an express exclusion of all others, is not an absolute rule but can be helpful in determining legislative intent. Harlingen Family Dentistry, 452 S.W.3d at 482 (quoting Johnson v. Second Injury Fund, 688 S.W.2d 107, 108-09 (Tex. 1985)).
Under the Administrative Procedures Act, we may only reverse an agency's decision if it prejudices the appellant's substantial rights because "the administrative findings, inferences, conclusions, or decisions (1) violate a constitutional or statutory provision, (2) exceed the agency's statutory authority, (3) were made through unlawful procedure, (4) are affected by other error of law, or (5) are arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Scally v. Texas State Bd. of Med. Exam'rs, 351 S.W.3d 434, 440 (Tex. App.—Austin 2011, pet. denied). In reviewing the agency's final order, we apply the substantial-evidence standard as set out in the Act. Id.; see Tex. Gov't Code § 2001.174. Our role is to ensure that the agency's findings, inferences, conclusions, and decisions are "reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole." Scally, 351 S.W.3d at 440-41. We apply a "deferential standard," presuming that the agency's order is supported by substantial evidence, and the party challenging the order must prove that it is not: "The burden is a heavy one—even a showing that the evidence preponderates against the agency's decision will not be enough to overcome it, if there is some reasonable basis in the record for the action taken by the agency." Id. at 441.
At the administrative level, the preponderance-of-the-evidence standard is applied. See Sanchez v. Texas State Bd. of Med. Exam'rs, 229 S.W.3d 498, 509 (Tex. App.—Austin 2007, no pet.); see also Scally v. Texas State Bd. of Med. Exam'rs, 351 S.W.3d 434, 447 n.15 (Tex. App.—Austin 2011, pet. denied) (discussing distinction between agency's burden of proof in license-revocation proceeding with standard of review applied in reviewing agency's final order).
"Substantial evidence does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion of fact." Id. (cleaned up). We will uphold an agency's determination "if the evidence as a whole is such that reasonable minds could have reached the conclusion that the agency must have reached in order to justify its action," we will defer to the agency's judgments on the weight of the evidence on questions committed to the agency's discretion, and the "ALJ, as factfinder, determines the credibility of witnesses and the weight of their testimony." Id. "We may not set aside an agency decision merely because testimony was conflicting or disputed or because it did not compel the agency's decision"—if the evidence can support either affirmative or negative findings on a specific issue, we will uphold the agency's decision. Id. "Our ultimate concern is the reasonableness of the agency's order, not its correctness." Id.
Challenges to Underlying Disciplinary Proceeding
We first turn to Lindsey's arguments, raised in both appeals, related to the Board's authority to seek to revoke her license. She argues that the Board's interpretation of its enabling statute and the rules it relied upon in this disciplinary proceeding are invalid because they do not comport with the applicable authorizing statute, they exceed the Board's statutory authority, they unlawfully expand the Board's authority, and they deprive Lindsey of her constitutional protections.
The Board, which consists of nine members appointed by the governor, is responsible for adopting rules that, among other things, will protect the public and will establish and maintain a "high standard of integrity, skills, and practice" among licensed veterinarians. Tex. Occ. Code §§ 801.002, .151(b), (c)(1). The Board is also authorized to "adopt rules as necessary to administer" Chapter 801 of the Occupations Code, which governs the licensing of veterinarians. Id. § 801.151(a); see generally id. §§ 801.001-.557 ("Veterinarians"). Section 801.402 provides in relevant part that a "person is subject to denial of a license or to disciplinary action" if she "engages in dishonest or illegal practices in, or connected with, the practice of veterinary medicine or the practice of equine dentistry" or "engages in practices or conduct that violates the board's rules of professional conduct." Id. § 801.402(4), (6). Thus, under the statutory scheme set out by the legislature, the Board has reasonably broad authority to adopt rules establishing standards for conduct of veterinarians.
Lindsey argues that the Board has limited jurisdiction and cannot discipline a veterinarian for conduct that does not involve the practice of veterinary medicine or that does not result in a conviction for cruelty to animals. She contends that Sections 53.021(a), 53.022, 53.023, 801.002, and 801.402(1) of the Occupations Code must be construed together as limiting the Board's disciplinary authority to conduct by licensees that is "within the statutory definition of the 'practice of veterinary medicine,'" and that to the extent the Board's rules connect the crime of animal cruelty to the practice of veterinary medicine, such conduct must result in a conviction to be the basis for discipline. She argues that the Board has violated its enabling statutes by expanding its authority to discipline veterinarians to include conduct that does not result in a conviction.
Section 53.021, 53.022, and 53.023 of the Occupations Code are general provisions related to licensing and describe when an agency may discipline a licensee following a criminal conviction. See Tex. Occ. Code §§ 53.021 ("Authority to Revoke, Suspend, or Deny License"), .022 ("Factors in Determining Whether Conviction Relates to Occupation"), .023 ("Additional Factors for Licensing Authority to Consider").
Initially, we will address Lindsey's arguments related to Section 801.402, which enumerates twenty-one kinds of conduct that may make a veterinarian subject to disciplinary action, including Subsections (5) and (18), which specify that a veterinarian is subject to discipline if convicted of cruelty to animals, attack on an assistance animal, or any felony. See id. § 801.402. As noted earlier, the Board sought to discipline Lindsey under Subsections (4) and (6), which provide more generally that a veterinarian may be subject to discipline if she engages in illegal or dishonest conduct in or connected with her professional practice or if she violates the Board's rules of professional conduct. Id. § 801.402(4), (6). Lindsey, however, contends that because Subsections (5) and (18) are specific about certain conduct that results in a conviction, those specific provisions "preempt any general provisions that provide otherwise," essentially advocating for the application of "the doctrine of expressio unius est exclusio alterius, the maxim that the expression of one implies the exclusion of others." Mid-Century Ins. Co. v. Kidd, 997 S.W.2d 265, 273 (Tex. 1999). She contends that the inclusion of Subsections (5) and (18) show a legislative intent that the determination of a licensee's guilt when accused of animal cruelty or a felony should be made under the criminal standard requiring proof beyond a reasonable doubt, not the more lenient preponderance-of-the-evidence standard. Lindsey insists that the Board's interpretation, allowing for discipline for conduct that does not result in a conviction, would render Subsections (5) and (18) meaningless. We disagree.
Allowing the Board to determine by rule, under the authority of Subsections (4) or (6), that discipline can be brought based on certain conduct that might overlap with conduct resulting in a conviction under Subsections (5) and (18) does not render those subsections meaningless. Instead, those subsections indicate a legislative intent that conduct falling within those subsections should be grounds for discipline, while other language used in Section 801.402 shows an intent to allow the Board discretion in deciding to make other similar conduct grounds for disciplinary proceedings. Indeed, Lindsey's argument that a veterinarian cannot be disciplined unless her conduct results in a conviction falling within Subsections (5) or (18) would render meaningless (or at least redundant) the language of Subsection (4), which allows for discipline in cases of "illegal practices." See Tex. Occ. Code § 801.402(4). We find compelling the Board's argument that the legislature's inclusion of Subsections (5) and (18) was not intended to limit the Board's authority over conduct that may not result in a conviction but instead to "delineate between what the Board must prove if a licensee has been convicted, that is, merely proof of the conviction itself," and what it must prove in seeking to discipline a licensee based on conduct that does not result in a conviction.
Further, the inclusion in Section 801.402 of specific acts that can give rise to disciplinary proceedings does not compel the legal conclusion that an act that renders a person unfit to practice veterinary medicine under the more general provisions but that does not fit neatly within one of the specific categories cannot be grounds for discipline. For instance, Section 801.402 provides that someone who is "chronically or habitually intoxicated, chemically dependent, or addicted to drugs" is subject to disciplinary proceedings. See id. § 801.402(3). Under Lindsey's analysis, a veterinarian who uses a drug only once but while under the influence of that drug commits an act that violates the Board's rules of professional conduct could not be disciplined because she was not addicted to the drug or chronically or habitually intoxicated, as specified by Subsection (3). We will not apply the doctrine of expressio unius est exclusio alterius to reach such a conclusion. See Kidd, 997 S.W.2d at 273-74 (doctrine is "simply an aid to determine legislative intent, not an absolute rule" and, as a rule of "reason and logic," should not be "mechanically applied to compel an unreasonable interpretation"); see also Tex. Gov't Code § 311.026(b) ("If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both."). We hold that the enumeration of certain specific acts in Section 801.402 does not mean that the conduct in this case, an act similar to but not within the exact boundaries of Subsections (5) or (18), cannot be subject to discipline under the more general provisions of Subsections (4) and (6).
The legislature authorized the Board to regulate the practice of veterinary medicine, specifically allowing it to adopt rules that will protect the public and ensure high standards of integrity, skills, and practice in the profession. See Tex. Occ. Code § 801.151(b), (c)(1). There is no statutory basis for concluding that in doing so the Board cannot determine that certain conduct can violate the Board's rules for professional conduct even though the behavior might not lead to a conviction under a criminal standard of proof. Cf. Sanchez v. Texas State Bd. of Med. Exam'rs, 229 S.W.3d 498, 509 (Tex. App.—Austin 2007, no pet.) (license-revocation proceedings are civil in nature and evidence must satisfy preponderance standard; party challenging agency's action gave no reason why "in a licensing proceeding, an allegation of conduct constituting a criminal offense should, for that reason alone, be subject to a higher standard of proof than an allegation of non-criminal conduct").
We will not attempt to explain the myriad of reasons—including reasons unrelated to the underlying merits of an allegation of criminal behavior—that an alleged act might not be prosecuted criminally, might not result in an indictment, or might not result in a final criminal conviction.
With that framework in mind, we ask whether Rules 573.4 and 575.50(f) improperly expand the Board's disciplinary reach and conclude that they do not.
Rule 573.4, "Adherence to the Law," provides:
No licensee shall commit any act that is in violation of the laws of the State of Texas, other states, or of the United States, if the act is connected with the licensee's professional practice, including, but not limited to, the acts enumerated in § 575.50(f) of this title (relating to Criminal Convictions). A complaint, indictment, or conviction of a law violation is not necessary for the enforcement of this rule. Proof of the commission of the act while in the practice of, or under the guise of the practice of, either veterinary medicine or equine dentistry, is sufficient for action by the Board under this rule.22 Tex. Admin. Code § 573.4. Rule 575.50 provides in relevant part:
(a) In a process under Chapter 53, Occupations Code, the Board may suspend or revoke an existing license, disqualify a person from receiving a license, or deny a person the opportunity to be examined for a license because of a person's conviction of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a veterinarian . . . . This subsection applies to persons who are not imprisoned at the time the Board considers the conviction.Id. § 575.50 (2018) (Tex. Bd. of Veterinary Med. Exam'rs, Criminal Convictions). Rule 575.50(f) goes on to list a number of crimes, including animal cruelty and "other misdemeanors or felonies . . . which indicate an inability or tendency of the person to be unable to perform as a licensee or to be unfit for licensure, if action by the Board will promote the intent of the Veterinary Licensing Act, Board rules, . . . and the Occupations Code, Chapter 53." Id. § 575.50(f)(5)(J), (P).
. . .
(c) The Board shall, in determining whether a criminal conviction directly relates to the duties and responsibilities of a licensee, consider the factors listed in the Occupations Code, § 53.022.
. . .
(f) The professional practices of veterinarians . . . place those licensees in positions of public trust. . . . The following crimes therefore relate to and are connected with the practices of veterinarians . . . because the commission of each indicates a violation of the public trust, and a lack of integrity and respect for one's fellow human beings and the community at large. . . .
As discussed earlier, the Board has the disciplinary authority to act against a veterinarian who is shown to have committed animal cruelty but is not convicted of such. Unlike the rule challenged in Texas State Board of Veterinary Medical Examiners v. Jefferson, Rule 573.4's allowing for discipline in the absence of a conviction is not counter to specific statutory language or statutory objectives and does not impose any burdens, restrictions, or conditions in excess of or inconsistent with the relevant statutory provisions. See No. 03-14-00774-CV, 2016 WL 768778, at *7-8 (Tex. App.—Austin Feb. 26, 2016, no pet.) (mem. op.); see also Texas Bd. of Chiropractic Exam'rs v. Texas Med. Ass'n, 375 S.W.3d 464, 474 (Tex. App.—Austin 2012, pet. denied) (in determining whether rule is within agency's statutory authority, court considers whether rule "(1) contravened specific statutory language; (2) ran counter to the general objectives of the underlying statute . . . ; or (3) imposed additional burdens, conditions, or restrictions in excess of or inconsistent with the relevant statutory provisions"). Nor do we agree that Rule 575.50(f) unlawfully expands the Board's definition of veterinary medicine. Rule 575.50 states that a veterinarian is in a position "of public trust" and observes that they are responsible for treating animals, preparing and keeping confidential records, handling payments from their clients, and prescribing, administering, and storing controlled substances. 22 Tex. Admin. Code § 575.50(f). None of those statements is an improper "expansion" of the definition of the practice of veterinary medicine as set out in Section 801.002. Section 801.002 defines the "practice of veterinary medicine" as "the diagnosis, treatment, correction, change, manipulation, relief, or prevention of animal disease, deformity, defect, injury, or other physical condition, including the prescription or administration of a drug, biologic, anesthetic, apparatus, or other therapeutic or diagnostic substance or technique"; the representation that the person is able and willing to perform those duties; and acceptance of compensation for performing those duties. Tex. Occ. Code § 801.002(5). Each of the elements set out in Rule 575.50(f) is also included in Section 801.002(5).
As for whether Subsection (f) improperly expands the definition by defining certain crimes as connected to the practice of veterinary medicine, the Board was required to "issue guidelines relating to the practice of the licensing authority" and to "state the reasons a particular crime is considered to relate to a particular license and any other criterion that affects the decisions of the licensing authority." See id. § 53.025(a). The Board did that in Rule 575.50, explaining that the enumerated crimes indicated "a violation of the public trust, and a lack of integrity and respect for one's fellow human beings and the community at large." 22 Tex. Admin. Code § 575.50(f). We disagree with Lindsey that the Board lacked the authority to determine that the offense of animal cruelty was sufficiently connected to the practice of veterinary medicine so as to give rise to disciplinary proceedings, even in the absence of a criminal conviction.
We overrule Lindsey's challenges to Rules 573.4 and 575.50 and to the Board's interpretation of those rules and applicable governing statutes. We affirm the trial court's dismissing Lindsey's suit for declaratory relief in cause number 03-16-00549-CV.
Sufficiency of the Evidence
We now consider Lindsey's arguments in cause number 03-17-00513-CV related to the sufficiency of the evidence supporting the Board's findings of fact and conclusions of law.
Lindsey attacks the following findings and conclusions: • Finding of Fact No. 37: Respondent did not have the effective consent of Tiger's owners before she shot and killed the cat. • Finding of Fact No. 42: Respondent's conduct in shooting the cat was reckless because she disregarded the risk that the cat was a pet and killing or injuring it would cause emotional pain and suffering to its owner. An ordinary person exercising care would not have shot the cat under those circumstances. • Finding of Fact No. 46: Respondent's caption on the Facebook post directly linked her actions to the veterinary profession. • Conclusion of Law No. 7: Staff proved by a preponderance of the evidence that Respondent committed the elements of the offense of Cruelty to Non-Livestock Animals under Texas Penal Code § 42.092(b)(2), in that Respondent killed an owned cat without the effective consent of the owner, and her conduct recklessly ignored the risk that the cat had an owner. Further, Respondent has not proven any of the defenses permitted. Respondent is subject to discipline pursuant to Texas Occupations Code § 801.402(4). • Conclusion of Law No. 8: Staff proved by a preponderance of the evidence that Respondent violated one of the Board's Rules of Professional Conduct by committing conduct constituting Cruelty to Non-Livestock Animals while acting under the guise of the practice of veterinary medicine. Respondent is subject to discipline pursuant to Texas Occupations Code § 801.402(6).
Lindsey also challenges Conclusion of Law No. 1 ("The Board has jurisdiction and authority to take disciplinary action against a licensee who engages in dishonest or illegal practices in, or connected with, the practice of veterinary medicine or who violates the Board's Rules of Professional Conduct. Tex. Occ. Code §§ 801.401, .402(4), (6)."), Conclusion of Law No. 5 ("A misdemeanor or felony offense involving animal cruelty is an offense connected with the veterinary profession. 22 Tex. Admin. Code § 575.50(f)(5)(J)."), and Conclusion of Law No. 6 ("The Board may take disciplinary action based on proof of the commission of an act while in the practice of, or under the guise of the practice of, veterinary medicine, with or without a complaint, indictment, or conviction of a law violation. 22 Tex. Admin. Code § 573.4."). However, in determining that the Board's interpretation of Section 801.402 was reasonable and that the Board did not improperly expand its authority by promulgating Rules 573.4 and 575.50(f), we have already determined Lindsey's challenges to conclusions 1, 5, and 6 against her.
The definition of the offense of animal cruelty, as relevant here, is the killing of an animal without the owner's effective consent, when the person has no reasonable fear of bodily injury to herself or another, and when the animal was not discovered on the person's property in the act of injuring or killing livestock or damaging crops. Tex. Penal Code § 42.092(b)(2), (d), (e). Lindsey does not challenge the Board's findings that a preponderance of the evidence establishes that the cat was an owned cat, not a feral cat; that "there were other orange-and-white cats in the vicinity of [her] property"; that she shot the cat within twenty seconds of noticing it and while twenty yards away and that under those circumstances, she "could not ascertain in that period of time and at that distance whether the cat was the same feral cat she had observed previously"; that "[t]he killing of Tiger caused grief for his owners and pet sitter"; that "Tiger's owners support a sanction that would permit [Lindsey] to learn from this experience and build her character"; that after Lindsey shot Tiger, she posted a photograph of herself holding the dead cat, stating, "The only good feral tomcat is one with an arrow through [its] head! Vet of the year award ... gladly accepted"; and that she "intended the caption to be facetious because she knew it was the type of conduct and comment that the general public did not expect from a veterinarian."
Lindsey argues that the Board did not carry its burden of showing that she lacked "the effective (actual or apparent) consent of" Tiger's owner at the time she killed the cat, effective consent being an element of the offense of animal cruelty. See id. She points to a sheriff's report admitted into evidence which stated that Clare Johnson, one of Tiger's owners, told the interviewing officer that she and her husband Bill had no ill will toward Lindsey, that they believed Lindsey "had suffered enough" and did not wish to press charges against her, that she understood Tiger was on Lindsey's property, that she knew that people had the right to protect their animals and property, that she knew that Tiger was not supposed to be on Lindsey's property, and that she and her husband were "sorry that this had happened."
The Penal Code defines "effective consent" as including "consent by a person legally authorized to act for the owner" and defines consent as "assent in fact, whether express or apparent." Tex. Penal Code § 1.07(a)(11), (19). Consent is not effective if given by someone "the actor knows is not legally authorized to act for the owner." Id. § 1.07(a)(19)(B).
However, the ALJs also heard testimony from Lindsey, the Johnsons, and the Johnsons' cat sitter. Lindsey testified that she had seen a large, feral, orange tomcat on her property several times, that the cat had been fighting with her cat and defecating in her horse feeders, and that the cat was unfriendly and would not let her get within twenty or thirty yards of it. She spoke to the person who owned the house she was renting, the veterinarian who owned the clinic where Lindsey worked, and he told her he did not believe that cat belonged to anyone and to "take care of it." On the morning in question, Lindsey was target shooting with her bow and arrow when she saw what she believed to be the same cat about twenty yards away and decided within twenty seconds to shoot it. She testified that she was certain that the cat she shot was the same feral, aggressive cat she had seen earlier and that she would not have killed it if she had known it was someone's pet. Lindsey was asked whether she agreed that "a person has a responsibility to determine if a cat is somebody's pet before they kill it," and she responded, "Yes, which I did." She said she would not have shot the cat had her landlord not given "permission to take care of an issue at my house. My house being his rental property, something that he owned, which is specifically why I asked him." Lindsey did not ask any other neighbors about the tomcat she had seen, including a neighbor who had many cats, some tame and some feral. There was no evidence that the cat was defecating in Lindsey's horse feeders or otherwise threatening her property at the time it was shot.
The Johnsons had gotten Tiger only a month before, and Clare Johnson testified that they wanted a cat because their older cat had died several months earlier. The Johnsons were out of town for a few days starting on the afternoon of Tiger's death, and they hired a pet sitter to take care of him, asking her to keep an eye out for Tiger because he had not eaten his wet cat food the night before. Mrs. Johnson testified that she was "[a]s certain as I can be" that the cat in Lindsey's photograph was Tiger. Although she and her husband did not want Lindsey to face criminal charges, Mrs. Johnson was upset by the language used in a press release stating that the grand jury decided not to indict Lindsey because Mrs. Johnson did not feel the sheriff's office had done a thorough investigation and "felt like they were just trying to skate the issue." She also stated that she believed there was a difference between criminal charges and an action against Lindsey's veterinary license and said she decided to become involved in the license proceeding because she and her husband had not heard from Lindsey or the clinic that had employed her and "were disturbed by that." She said:
At the very beginning, all we wanted to see were signs of culpability and accountability and true remorse. And the reason we did not want to pursue criminal charges is because we felt like—that Dr. Lindsey is very young; that it was a very immature and stupid act. But we wanted it to be a character-building and a growing experience for her. We wanted her to get help, not criminal charges. And that is why we took the actions we took. Then when there was radio silence and there were no signs of remorse, there were no signs of apology or even reaching out to us. And when I read—when I read the press release, it did upset me, not because of the outcome but because of the rationale behind it.Mrs. Johnson and the cat sitter both said they were upset by Tiger's death, the cat sitter saying, "I have had a lot of stress and grief over this, and felt like I was not able to protect my friend."
Mrs. Johnson was asked about the portion of the sheriff's report stating that she told the officer that she "understood that the cat was on Dr. Lindsey's property" and that she and Mr. Johnson "were sorry that this happened," and she replied, "I did say that if, indeed, Tiger was doing bad things to her property that I would be very sorry for that. I didn't acknowledge that that took place." She also testified that she did not recall telling the sheriff that Tiger was not supposed to be off the Johnsons' property, saying "that's not what I believe to be true. Tiger was allowed to roam." Mr. Johnson also testified, saying he and his wife did not want to press charges against Lindsey because "she punished herself enough already just by doing what she did. And I really—I had some empathy for her. And everybody makes mistakes."
Lindsey argues that the Board had the burden of proving that Lindsey did not have the Johnsons' "effective (actual or apparent) consent" and that there was no evidence as to the Johnsons' non-consent. Lindsey argues that "[t]he only reasonable inference" that can be reached from Mrs. Johnson's testimony and her statement to the sheriff's investigator "is that the Johnsons understood—and apparently assented to—a property owner's right to kill an animal which" trespassed on and was threatening to the property owner's property. We disagree.
Mrs. Johnson testified that she did not want to press criminal charges but that she did believe action against Lindsey's license was appropriate. She stated that she had hoped to see remorse and "culpability" from Lindsey. She testified that she told her cat sitter to keep an eye out for Tiger because he had not eaten the night before she and her husband left town. Although Mrs. Johnson was never asked directly whether she or Mr. Johnson had consented to Lindsey shooting Tiger, the ALJs could reasonably infer from the testimony that the Johnsons did not consent, either explicitly or apparently. Nor is there any evidence to support a conclusion that the cat sitter might have so consented as their agent while they were out of town. Lindsey admitted that she did not ask any neighbors about the feral tomcat she had seen, other than to ask her landlord what to do about "an issue" at his rental house, and although Lindsey insisted that the cat she shot was the feral cat she had seen earlier, the ALJs and the Board found otherwise, finding that the cat Lindsey shot was Tiger, "a neutered orange tabby." We hold that under the appropriate standard of review, there was sufficient evidence to support the Board's finding that Lindsey did not have the Johnsons' effective consent. See Scally, 351 S.W.3d at 440-41.
Likewise, there was sufficient evidence to support the finding that Lindsey was reckless in disregarding the risk that the cat was a pet and that killing it would cause emotional pain to its owner. The Board found that other orange-and-white cats lived in the area and that Lindsey shot the cat at a distance and within a time frame that made it impossible for her to know that she was not shooting the feral tomcat. The ALJs provided further explanation for that finding, stating that Lindsey "made minimal efforts to ascertain the ownership of the cat, leaving open the possibility that the cat belonged to a neighbor," and failing to verify that the cat was the feral cat she had seen fighting with her own cat before shooting her arrow. The ALJs determined that the cat was too far away for Lindsey to tell if it was neutered, as Tiger was, or not, as the feral cat was; whether it had fleas, a mangy coat, and a bad odor, all of which she had observed the feral cat to have; or whether it was overweight, as Tiger's owners and cat sitter testified he was. Although Lindsey insists that her asking her landlord about the cat amounted to "reasonable inquiry to the person most likely to know if the cat on his property had an owner," the record shows that there were several orange-and-white cats in the neighborhood and that Lindsey did not pause to be sure the cat was the feral cat and not a similar-looking pet. Lindsey admitted that before someone kills a cat, she has a responsibility to find out if the cat is someone's pet. Although she asserted that she did just that by asking her landlord about the feral cat, the Board determined that she had killed a neighbor's pet. We will not reweigh the evidence, and there is a reasonable basis in the record for the Board's finding that Lindsey was reckless as to the risk that she was about to kill the wrong cat. See id. at 441.
Finally, the Board has by rule already determined that conduct amounting to cruelty to animals is related and connected to the practice of veterinary medicine, even if the conduct does not result in a conviction. See 22 Tex. Admin. Code §§ 573.4, 575.50(f). Lindsey admittedly killed the cat, wrongly believing it to be a feral cat; the cat was owned by the Johnsons; and Lindsey did not have the Johnsons' effective consent. The Board had substantial evidence from which to determine that Lindsey tied her profession to her shooting the cat. See Scally, 351 S.W.3d at 441 (standard of review only requires sufficient relevant evidence that "a reasonable mind might accept as adequate to support" agency's finding).
We have overruled Lindsey's challenge to the Board's findings of fact, and because those findings were supported by sufficient evidence, we therefore also overrule her challenges to Conclusion of Law No. 7, which concluded that the preponderance of the evidence showed Lindsey had committed the elements of cruelty to animals by killing the cat without the effective consent of its owners and acted recklessly as to the risk that the cat was a pet, and Conclusion of Law No. 8, which concluded that Lindsey committed that conduct "while acting under the guise of the practice of veterinary medicine." Those conclusions flow directly from the Board's findings of fact.
Conclusion
We have overruled Lindsey's challenges to the Board's authority to seek disciplinary action against her veterinary license, raised in both appeals, and her challenges to certain findings and conclusion, raised in cause number 03-17-00513-CV. We affirm the judgment in both causes of action.
/s/_________
Cindy Olson Bourland, Justice Before Chief Justice Rose, Justices Field and Bourland Affirmed Filed: April 27, 2018