Hines v. Pardue

688 F.Supp.3d 522

Ronald S. HINES, Plaintiff, v. Keith PARDUE, et al., Defendants.

CIVIL ACTION NO. 1:18-CV-155

United States District Court, S.D. Texas, Brownsville Division

Signed August 15, 2023

Jeffrey T. Rowes, Pro Hac Vice, Institute for Justice, Austin, TX, Andrew H. Ward, Pro Hac Vice, Anna Bidwell, Institute for Justice, Arlington, VA, for Plaintiff.

William David Wassdorf, Emily Laura Ardolino, Johnathan Stone, Office of the Attorney General, General Litigation Division, Austin, TX, Stephanie S. McGraw, Shook Hardy and Bacon LLP, Houston, TX, for Defendants Keith Pardue, Sandra "Lynn" Criner, Michael White, Samantha Mixon, Randall Skaggs, Raquel Oliver, Sue Allen, Victoria Whitehead.

Johnathan Stone, Office of the Attorney General of Texas, Austin, TX, for Defendant Steven Golla.

Christopher E. Appel, Pro Hac Vice, Philip S. Goldberg, Pro Hac Vice, Shook, Hardy & Bacon L.L.P., Washington, DC, Stephanie S. McGraw, Shook Hardy and Bacon LLP, Houston, TX, for Amici American Veterinary Medical Association, Texas Veterinary Medical Association.

ORDER AND OPINION

Fernando Rodriguez, Jr., United States District Judge

Plaintiff Ronald S. Hines is a Texas veterinarian who wishes to provide veterinary advice to pet owners worldwide without having to physically examine their animals. In 2013, the Texas State Board of Veterinary Medical Examiners disciplined Hines for this practice. The Board found that Hines violated Texas law by practicing veterinary medicine without first conducting a physical examination of the animal. Since then, Hines has spent over a decade challenging the law, arguing that these statutory requirements violate his First Amendment right to free speech.¹

Hines and the Board have cross-moved for summary judgment. Based on the record and the applicable law, the Court agrees with Hines that he has standing to bring his lawsuit. The Court finds, however, that the statutory requirements that he challenges represent a content-neutral regulation of Hines's speech, and that the summary judgment evidence conclusively demonstrates that the Board has met its burden under intermediate scrutiny to support the law's continued enforcement. As a result, Hines is not entitled to any of the relief that he seeks in this lawsuit.

I. Factual Background and Procedural History

A. Texas Veterinary Law

Texas law defines 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." TEX. OCC. CODE ANN. § 801.002(5)(A). An individual may not practice veterinary medicine without obtaining a license, which requires passing the state licensing exam. Id. at §§ 801.251-801.252. A person who provides veterinary care without being licensed commits a Class A misdemeanor, punishable by no more than one year of imprisonment, a fine of up to $4,000, or both. Id. at § 801.504(a)-(b); TEX. PENAL CODE ANN. § 12.21.

A licensed veterinarian in Texas "may not practice veterinary medicine unless a veterinarian-client-patient relationship exists". TEX. OCC. CODE ANN. § 801.351(a). Establishing such a relationship requires that the veterinarian:

1) assumes responsibility for medical judgments regarding the health of an animal and a client, who is the owner or other caretaker of the animal, agrees to follow the veterinarian's instructions;

2) possesses sufficient knowledge of the animal to initiate at least a general or preliminary diagnosis of the animal's medical condition; and

3) is readily available to provide, or has provided, follow-up medical care in the event of an adverse reaction to, or a failure of, the regimen of therapy provided by the veterinarian.

Id. at § 801.351(a)(1)-(3). In the current case, the second element proves critical. Under state law, a veterinarian can only possess "sufficient knowledge of the animal" by either "examining the animal; or making medically appropriate and timely visits to the premises on which the animal is kept." Id. at § 801.351(b)(1)-(2). Texas law expressly precludes a veterinarian from establishing the veterinarian-client-patient relationship "solely by telephone or electronic means." Id. at § 801.351(c). Together, this set of rules represents the "Examination Requirement" that Hines challenges.

B. Hines's Veterinary Practice

In 1966, Hines graduated from Texas A&M University with a doctorate in veterinary medicine. (Hines Decl., Doc. 83-1, ¶ 2) "[S]oon after," he obtained his Texas veterinary license, which he holds to this day. (Id.) Over the next four decades, he worked for animal hospitals, SeaWorld, and the National Institutes of Health. (Id. at ¶¶ 4, 6) In 2002, he retired from active practice because the long-term effects of a spinal injury left him unable to "be on [his] feet all day" and "made it too hard to keep up daily veterinary practice." (Id. at ¶¶ 5, 7)

Unable to maintain a veterinary practice in person, Hines created a website called 2ndchance.info, where he posted articles he wrote about pets and pet care. (Id. at ¶ 8) He created the website because he desired to "help animals" and was concerned that "people around the world do not have access to the type of sophisticated veterinary services available in North America." (Hines 1st Dep., Doc. 82-1, 11, 23:6-22)

Readers of his website began to reach out to him with questions about issues or symptoms facing their pets. In response, Hines "would tell them what their choices might be, and [ ] would tell them what [he] had done in that situation in the past, and what [he] might do in that situation in the future." (Id. at 15, 41:21-24) In general, he "offered them an opinion based on [his] prior experience," but "never offered to treat their pet" and never prescribed medication for an animal. (Id. at 29, 96:22-24; id. at 32, 109:5-8)

At some point, he began charging readers $8.95 in exchange for the personalized veterinary advice, and at some point, requested only donations. (Id. at 19, 54:19-23; Hines Decl., Doc. 83-1, ¶ 10) He estimates that between 2000 and 2020, he received inquiries from hundreds and perhaps thousands of people, but he never generated more than a thousand dollars in a single year. (Hines 1st Dep., Doc. 82-1, 18, 53:1-5; id. at 29, 96:7-16)

C. Hines I

In 2012, the Texas State Board of Veterinary Medical Examiners initiated disciplinary proceedings against Hines, alleging that he was providing veterinary care without satisfying the Examination Requirement. Hines waived a formal adjudicative hearing and, in March 2013, entered into an Agreed Order through which he agreed to discipline, but "without admitting the truth" of the Board's findings and conclusions. (Agreed Order, Doc. 83-8) He accepted a year of probation and a $500 fine, and agreed to retake the jurisprudence section of the veterinary licensing exam.

In April 2013, Hines sued the members of the Board in their official capacity. See Hines v. Alldredge, Civil Action Case No. 1:13-cv-056 (S.D. Tex. 2013). He alleged that by enforcing the Examination Requirement, the Board violated his First Amendment right to free speech, as well as his Fourteenth Amendment rights to equal protection of the law and to engage in one's chosen occupation without arbitrary and irrational interference.

After the Board moved to dismiss Hines's Complaint, the Court dismissed Hines's equal protection and substantive due process claims, but denied the motion as to Hines's First Amendment claim. The Board then filed an unopposed Motion to Certify for Interlocutory Appeal, which the Court granted.

On appeal, the Fifth Circuit affirmed the dismissal of the equal protection and substantive due process claims, but reversed as to the First Amendment claim. See Hines v. Alldredge (Hines I), 783 F.3d 197, 201 (5th Cir. 2015). The court reasoned that because "[s]tates have 'broad power to establish standards for licensing practitioners and regulating the practice of professions' ", the "requirement that veterinarians physically examine an animal or the animal's premises before treating it (or otherwise practicing veterinary medicine) falls squarely within this long-established authority, and does not offend the First Amendment." Id. (quoting Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 108, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992)). In doing so, the Fifth Circuit relied on "the professional speech doctrine", which " 'except[s]' from normal First Amendment scrutiny regulations of speech by 'professionals.' " Vizaline, L.L.C. v. Tracy, 949 F.3d 927, 928 n.1, 931 (5th Cir. 2020) (quoting Nat'l Inst. of Fam. & Life Advocs. v. Becerra (NIFLA), 585 U.S. 755, 138 S. Ct. 2361, 2371, 201 L.Ed.2d 835 (2018)).

As the Fifth Circuit concluded that Hines failed to state a claim under the First Amendment, on remand, this Court entered Final Judgment in the Board's favor as to all of Hines's causes of action. (Final Judgment, 1:13-cv-056, Doc. 72)

D. Hines II

In June 2018, the U.S. Supreme Court issued National Institute of Family & Life Advocates v. Becerra. In that case, the Supreme Court expressly rejected the professional speech doctrine, explaining that it had not previously "recognized 'professional speech' as a separate category of speech" and that "[s]peech is not unprotected merely because it is uttered by 'professionals.' " NIFLA, 138 S. Ct. at 2371-72.

Later that year, motivated by the NIFLA decision, Hines filed the current lawsuit to re-urge his cause of action under the First Amendment. Hines argued that NIFLA abrogated Hines I, and that he presented a valid free speech claim. In addition, he alleged anew his claim under the Equal Protection Clause, based on changes to Texas law that allowed doctors to perform telemedicine without first physically examining human patients.

The Board again moved to dismiss, and the Court...