Letter to Attorney General Ken Paxton

A final plea for help.

My attorneys and I have asked Attorney General Ken Paxton to investigate the Texas State Office of Administrative Hearings, the agency handling the Texas Medical Board’s lawsuit against me, for exceeding and abusing its authority.

Since this case began, the administrative law judge has issued fourteen pre-trial orders and my legal bills are now up to $175,000. Although we sent this letter to the AG six weeks ago, we have not heard a response.

April 23, 2024

Attorney General Ken Paxton

Office of the Attorney General

Dear General Paxton:

We represent Dr. Mary Talley Bowden. Dr. Bowden is the victim of harassment and persecution by the Texas Medical Board (TMB) because of her public advocacy of early treatment protocols for COVID-19 and vocal opposition to SARS-CoV-2 vaccine mandates. In its pursuit of Dr. Bowden, TMB has violated its own governing statutes and regulations as well as Dr. Bowden’s constitutional right to due process. Both TMB and the Administrative Law Judge (ALJ) have abused their power and committed ultra vires acts which require immediate judicial intervention to protect Dr. Bowden’s constitutional rights and ability to practice medicine free from unlawful interference. TMB has become an authoritarian menace to the rights and liberties of Texas citizens, improperly injecting political ideology and establishment groupthink into the doctor-patient relationship. TMB operates without meaningful supervision by the governor or any other elected official, relies on “staff” to make decisions about whom to prosecute and which charges to level, and utilizes a biased, unaccountable, and arcane administrative law system – whose own “judges” are nothing more than low level state employees exercising uncontrolled discretion – to mete out sanctions against physicians TMB chooses to target. The process used in this system is unconstitutional because important decisions are being made by unaccountable staff members rather than elected or appointed officials, as the Texas constitution requires.

In this case, TMB has focused on Dr. Bowden for her political and medical opinions with a litany of charges that have nothing to do with patient care. The attack on Dr. Bowden is unprecedented. TMB staff simply accepted the allegations in two complaints at face value and conducted no independent investigation to verify the truth of their claims. Then, the ALJ – whose views appear to be left-leaning – trampled over Dr. Bowden’s due process rights, denying her the right to present her defense, utilize an expert witness, or obtain required disclosures from TMB and its expert. The State Office of Administrative Hearings (SOAH) refused to exercise any oversight or review over these flawed decisions.

We plan to seek relief in the Texas Courts from the ultra vires acts, which also violate Dr. Bowden’s right to due process, and to protect Dr. Bowden’s right to due process under the U.S. and Texas Constitutions. We will ask the Courts to order both TMB and the State Office of Administrative Hearings to follow the law and regulations, to abide by Dr. Bowden’s procedural and substantive due process rights and to honor the 2021 findings of fact and conclusions of law of a Tarrant County District Court Judge, which were not overturned on appeal.

Ultimately, Dr. Bowden’s case will be judged by the proper authorities under the Texas constitution – namely, the Courts of the State of Texas. As discussed below, we believe the AG’s duty to the State of Texas does not require the AG’s office to rubber stamp unlawful or unfair actions. This memo addresses certain areas in which we believe the AG may oppose the actions of unauthorized government employees and/or agencies while appropriately meeting his duties to his client, the State of Texas.

A. The TMB complaints against Dr. Bowden are baseless.

1. Dr. Bowden’s background

Dr. Bowden is a prominent Houston ENT physician who has advocated the early treatment of COVID-19 with protocols that include generic drugs such as ivermectin. She has publicly opposed vaccine mandates, has testified before the United States Congress and regularly publishes her opinions on Twitter and Substack. She has become a leading critic of the failures of federal policy toward COVID and has over 350,000 followers on the social media platform X.

Dr. Bowden was one of the few physicians in Houston who personally treated COVID patients during the early phases of the pandemic. To date, she has treated more than 6,000 COVID patients, many of whom had serious co-morbidities, with few hospitalizations and only one death. Her successful treatment record far surpasses that of her opponents, including Houston Methodist and other institutions that relied on CDC recommendations.

Dr. Bowden owns and operates a successful ENT clinic in Houston called “BreatheMD.” After taking time out of her career to raise her four children, she started that clinic, where she primarily treats airway disorders. Dr. Bowden has an unblemished professional record. Before she spoke out publicly about COVID, Dr. Bowden had never been the subject of a TMB complaint or any controversy whatsoever nor has she ever been sued for malpractice

2. The two TMB complaints against Dr. Bowden

a. The Huguley Hospital complaint

There are two TMB complaints against Dr. Bowden. The first complaint against Dr. Bowden relates to her efforts to save the life of Jason Jones, a patient who was hospitalized with COVID, in a coma, and on a ventilator at Fort Worth’s Huguley Hospital. Mr. Jones was in his mid-forties and had no preexisting conditions. After Mr. Jones had been lingering near death in the ICU for more than a month, Mr. Jones’ wife, Erin Jones, read about Dr. Bowden and asked her to serve as an expert witness to support her efforts to have Mr. Jones treated with a protocol that included ivermectin. Dr. Bowden reviewed Mr. Jones’ online medical records, discussed his health history with Mrs. Jones, and agreed to write a prescription for Mrs. Jones to use in her efforts to modify Mr. Jones’ treatment.

When the hospital refused to allow Mr. Jones access to ivermectin, Dr. Bowden worked with Mrs. Jones and her attorney, Beth Parlato, to obtain a court order against the hospital, which fought tenaciously to prevent Mr. Jones from receiving that treatment. After significant briefing and a two-day hearing, a district court in Tarrant County issued a temporary injunction requiring the hospital to grant Dr. Bowden temporary privileges so she could give Mr. Jones ivermectin.

In reliance on the court order, Dr. Bowden sent a registered nurse to administer the medication. Unbeknownst to Dr. Bowden, the Jones family, or their attorneys, the Second Court of Appeals stayed the Temporary Injunction shortly before the nurse arrived at the hospital. There is no evidence that Dr. Bowden or the nurse engaged in any misconduct by attempting to provide treatment authorized by a court order. Even though Huguley Hospital tried to make a scene by calling law enforcement, the police officers took no action and did not even file a report.

Ultimately, Huguley Hospital “succeeded” in preventing Dr. Bowden from treating Mr. Jones with ivermectin. But that “victory” was pyrrhic. Although he was eventually released, Mr. Jones never recovered from his time in the Huguley ICU. After returning home, Mr. Jones died, leaving behind his wife and six children.

a. The Houston Methodist complaint

The second complaint came from Houston Methodist. Dr. Bowden had privileges at Houston Methodist from January 28, 2021 until November 15, 2021 although she never admitted a patient to the hospital. In November 2021, Houston Methodist learned about critical statements that Dr. Bowden made online about Methodist’s vaccine policies and vaccine mandates in general. On November 12, Houston Methodist attacked Dr. Bowden on Twitter for allegedly spreading “dangerous misinformation” and represented to the Houston Chronicle that Dr. Bowden had been temporarily suspended. Dr. Bowden learned about the tweet after receiving media inquiries.

The following business day, Dr. Bowden resigned from Houston Methodist in protest. Dr. Bowden understandably felt that she could not remain affiliated with Houston Methodist after the hospital attempted to defame and humiliate her on Twitter. There appears to be no precedent for Houston Methodist attacking a physician on social media, much less announcing a purported temporary suspension publicly without informing the physician beforehand.

After Dr. Bowden resigned, Houston Methodist filed a complaint with TMB, accusing her of resigning during an open “investigation.” But TMB has not produced any evidence – documentary or otherwise – that indicates that Dr. Bowden was under investigation when she resigned. Dr. Bowden was unaware of any potential investigation when she resigned.

B. TMB has abused its authority to harass and persecute Dr. Bowden.

a. TMB’s harassment of Dr. Bowden

i. The Huguley Hospital complaint

TMB’s charges under the Huguley Hospital complaint contradict a state district court order. Even though the court of appeals dissolved the compulsory part of that order, the court of appeals left the findings of fact and conclusions of law in place.

Those findings and conclusions included the following:

• Huguley Hospital’s course of treatment was causing Jason Jones to deteriorate and presented a risk of irreparable harm – i.e., death.

• Erin Jones was the legal “surrogate decision-maker” for Jason Jones and had a legal right to give informed consent to his treatment with ivermectin.

• Erin Jones “consented” to Dr. Bowden’s treatment.

• Both Jason and Erin Jones expressed a desire for treatment with ivermectin.

• Texas law gave Jason Jones a right to ivermectin as an experimental drug.

• Under Medicare’s emergency COVID rules, Dr. Bowden could prescribe and practice at a hospital before being credentialed and privileged.

• Authorizing Dr. Bowden to treat Jason Jones would not violate any federal or state law. TMB’s charges directly contradict these legal findings. First, TMB claims that Dr. Bowden failed to establish a doctor-patient relationship with Jason Jones. The district court specifically found otherwise. Second, TMB claims that Dr. Bowden’s conduct violated the Texas Medical Practice Act and CMS regulations, when the district court determined that Dr. Bowden’s treatment would not violate any state or federal law. Third, the district court held that Huguley Hospital’s course of treatment threatened to cause Jason Jones’ death and that Mr. Jones had a right to try ivermectin under Texas law, both of which underscore the importance of Dr. Bowden’s discretion.

Again, these findings were not disturbed on appeal. The Court of Appeals ultimately held that Mr. Jones did not have a statutory right to try ivermectin but left the other findings intact.

ii. The Houston Methodist complaint

TMB’s charges under the Houston Methodist complaint are unsupported by evidence. TMB did not produce any documents that indicate that Methodist opened an investigation into Dr. Bowden and did not even produce a copy of the hospital bylaws. Further, no witness from Methodist is scheduled to testify. There is simply no evidence in the record to support a claim that Dr. Bowden resigned while under investigation – as opposed to resigning under protest based on Methodist’s social media attacks, which she had every right to do. TMB’s allegations about an open investigation lack any support in the record.

Houston Methodist received millions of dollars in government funding related to COVID vaccines and other experimental treatments such as Remdesivir. Houston Methodist considers any deviation from CDC guidelines “dangerous misinformation” and was one of the worst offenders in the Houston medical community for enforcing unquestioning acceptance of CDC groupthink. Houston Methodist was also the first hospital in the United States to mandate SARS-CoV-2 vaccination for its employees and aggressively advocated that position publicly.

iii. TMB’s uncritical acceptance of false and misleading allegations TMB took the allegations made by Huguley Hospital and Houston Methodist at face value, conducting no independent investigation. In fact, TMB relied exclusively on documents selectively chosen by those entities in charging Dr. Bowden. Both hospitals omitted key documents that were necessary for a fair evaluation of the issues, including the district court order that Dr. Bowden relied on (and that contradicted Huguley’s allegations) and the Methodist internal documents (that would confirm whether the hospital investigated Dr. Bowden).

TMB’s deliberate cherry-picking came to light at the informal settlement conference. During that meeting, neither TMB staff nor the participating board members could find documentation to support their claims. Despite that failure, TMB has refused to back down and is insistent on humiliating punishment – and a permanent black mark on Dr. Bowden’s professional record.

b. The Administrative Law Judge is biased and has violated the law.

The ALJ assigned to the case is Rachelle Robles, a graduate of the University of California Berkeley and the University of California Hastings College of Law in San Francisco. Judge Robles has shown bias by consistently ruling against Dr. Bowden without giving her a fair opportunity to be heard, to respond, or to conduct discovery. These manipulative and dishonest tactics by a so-called “neutral” judge have prevented Dr. Bowden from having a fair trial. Under Texas law, Dr. Bowden was entitled to take the deposition of Dr. Irvin Zeitler, the expert witness designated to testify by TMB’s employees. Dr. Bowden first requested dates for his deposition on December 4, 2023. TMB ignored her request for fifty-four days, despite repeated follow-up from Dr. Bowden. On January 2, 2024, Dr. Bowden notified TMB that Dr. Zeitler’s “report” did not meet the requirements of Tex. R. Civ. P. 195.3(a) and requested to take Dr. Zeitler’s deposition before designating a rebuttal expert. TMB refused to present Dr. Zeitler for deposition.

Out of an abundance of caution, Dr. Bowden designated a rebuttal expert – Dr. Richard Urso – on January 8, 2024. Yet TMB continued to stonewall on providing dates for Dr. Zeitler’s deposition while – incredibly – insisting on deposing Dr. Urso. Both parties filed motions with the ALJ. Dr. Bowden moved to strike Dr. Zeitler for failing to provide an adequate report or appear for a deposition. TMB moved to compel Dr. Urso’s deposition. Even though Dr. Bowden asked for a hearing, the ALJ refused to hold a hearing, denied Dr. Bowden’s motion, granted TMB's motion without giving Dr. Bowden an opportunity to respond, and ordered Dr. Urso’s deposition on three day’s notice (again, without giving Dr. Bowden a hearing or opportunity to respond). Dr. Urso had three surgeries scheduled for the time of the deposition and was unable to appear for that deposition. TMB’s staff affirmatively refused to re-schedule the deposition and did not even respond to Dr. Bowden’s offer of additional deposition dates.

TMB’s demand for Dr. Urso to cancel surgeries at the last minute to participate in a deposition is far more “disruptive” to patient care than anything TMB has accused Dr. Bowden of doing at Huguley Hospital. TMB’s conduct shows callous disregard for patient care or patient rights and breathtaking hypocrisy. The fact that the ALJ rubber- stamped this demand without giving Dr. Bowden an opportunity to respond confirms the ALJ’s bias.

C. The Texas Attorney General has authority to stop the persecution of Dr. Bowden.

1. The Attorney General has constitutional authority over all litigation by the State of Texas. “The Attorney General, as the chief legal officer of the State, has broad discretionary power in conducting his legal duty and responsibility to represent the State.” Terrazas v. Ramirez, 829 S.W.2d 712, 721–22 (Tex. 1991); Tex. Const. art. IV, Sec. 22; Tex. Gov’t Code § 402.021. As a statewide elected official, the Attorney General represents the people of Texas as a whole. Bullock v. Tex. Skating Ass'n, 583 S.W.2d 888, 894 (Tex. App.—Austin 1979, writ ref’d n.r.e.). The Attorney General’s fiduciary duties are to the State, not individual agencies or departments. Id. Tex. Disc. R. of Prof. Cond. 1.12(a).

The Attorney General is not required to follow the direction of other state officials in exercising his legal judgment. Terrazas, 829 S.W.2d at 721–22; see also Tex. Disc. R. Prof. Cond. 1.12(a). Under the “republican form of government” clause of the Texas constitution, Tex. Const. Art. I, § 2, the hallmark of a republican form of government is that the people know who to blame for conduct of which they do not approve. Matzen v McClane, 659 S.W.3d 381, 390-391 (Tex. 2021). That principle requires that the Attorney General – and no unelected official or employee – make the final decision regarding the legal positions and litigation objectives to assert on behalf of the State. See, e.g., Comm'n for Lawyer Discipline v. Webster, 676 S.W.3d 687 (Tex. App.— El Paso 2023, pet. filed).

2. The Attorney General has the authority and duty to rein in illegal or ultra vires actions by state agencies. Because of the discretion the Attorney General has over state litigation matters, the Attorney General has no obligation to – and should not – defend illegal or ultra vires actions by state agencies. Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017) (“ultra vires acts…should not be considered acts of the state.”). The Texas Supreme Court has held that “‘ultra vires suits do not attempt to exert control over the state—they attempt to reassert the control’ of the state over one of its agents.” Matzen v McClane, 659 S.W.3d 381 (Tex. 2021). Under that precedent, the Attorney General has the authority to intervene in private actions where a state agency has exceeded its lawful authority. This includes in the SOAH where a “person” may be admitted as a party to an SOAH hearing upon showing of a justiciable interest (22 Tex. Admin. Code § 187.23(c)). We believe the Attorney General can intervene in Dr. Bowden’s contested case, on behalf of the state, for the purpose of stopping TMB staff’s and the ALJs’ ultra vires conduct.

3. The State Office of Administrative Hearings has exceeded its statutory and constitutional authority. The State Office of Administrative Hearings (SOAH) has exceeded its lawful authority by delegating final decision-making to administrative law judges without proper supervision and oversight by an elected or appointed official. The Texas Supreme Court has held that executive branch authority must be exercised in a manner that allows the public to “determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.” McClane, 659 S.W.3d at 390, citing Free Enter. Fund v. Pub Co. Accounting Oversight Bd., 561, U.S. 477, 497 (2010). The Texas Constitution requires supervision of decision-making by the Governor or one of his direct appointees.

In the SOAH, ALJs are simply employees of the office. They are not appointed by, or directly accountable to, the Governor and cannot exercise independent authority without supervision. To allow an ALJ to operate without supervision would “implicate[]…foundational questions” arising under Art. I, § 2 of the Texas Constitution. Id. at 390-01.

Although the SOAH is headed by a Chief Administrative Law Judge appointed by the Governor, that official does not have direct supervisory authority over decisions of his employees. Dr. Bowden attempted to appeal one of Judge Robles’ decisions to the Chief Administrative Law Judge. In response, Judge Robles – rather than the Chief ALJ – issued an opinion stating that neither the Administrative Procedures Act nor the Texas Medical Practices Act authorizes review of her rulings by the Chief ALJ. Order No. 9 in Cause No. 503-23-17769. Exhibit 1. Judge Robles’ exercise of executive authority without any supervision or right of review violates Art. I. § 2 as construed by the Texas Supreme Court in McClane.

The unaccountable exercise of power by ALJs is even more troubling in cases from the Texas Medical Board. TMB is statutorily precluded from modifying an ALJ’s findings of fact or conclusions of law or even modify an ALJ order. Tex. Occ. Code § 164.007(a-1). And ALJ fact findings are only reviewed for abuse of discretion at the district court level, insulating an individual ALJ’s decisions from any accountability to the people of Texas or their elected officials.

Far from being an academic exercise, this unaccountability is a fundamental issue for a republican government. In United States v. Arthrex, Inc., 594 U.S. 1, 141 S. Ct. 1970, 210 L. Ed. 2d 268 (2021), the United States Supreme Court expressly held that ALJs in the Patent Office unlawfully exercised executive power because their work was not subject to review by a senior officer of the federal government. Although Arthrex relied on the Appointments Clause of the U.S. Constitution, the rationale was the same as the Texas Supreme Court’s analysis in McClane—that the exercise of executive power must be exercised by an elected executive or his appointee. Arthrex, 594 U.S. at 23, McClane at 390-91. Therefore, Arthrex provides strong support for limiting the power of state employees who purport to exercise executive authority that resides in an elected governor.

4. TMB attempted to compel a physician to violate the Medical Practices Act as a litigation tactic.

Dr. Bowden designated Dr. Richard Urso as her responsive expert. Even though TMB refused to present its affirmative expert, Dr. Irvin Zeitler, for deposition, and even though Dr. Zeitler’s report did not comply with the minimum standards of Tex., R. Civ. P. 195.3, Dr. Urso submitted his expert disclosure on January 8, 2024 in which he addressed the allegations made by Dr. Zeitler.

Without taking any action to enforce the requirement that Dr. Zeitler appear for a deposition or produce an adequate report, the ALJ ordered Dr. Urso to appear for a deposition on three days’ notice. Compliance with that order would have required Dr. Urso to cancel at least three previously scheduled surgeries, leaving patients in the lurch.

TMB’s demand that Dr. Urso take that drastic action, when it was entirely feasible to schedule his deposition for a more convenient time, violated the Medical Practices Act and threatened to disrupt patient care.

TMB’s subsequent motion for sanctions – which the ALJ granted – confirms that TMB was willing to compel a violation of the Medical Practices Act to gain an advantage in litigation. The motion for sanctions sought to exclude Dr. Urso from testifying based on his failure to cancel surgeries and appear for a deposition. That is the definition of an ultra vires act by TMB.

TMB’s position also raises concerns that the appointed board members are not adequately supervising the attorneys and staff that represent TMB in litigation. For that reason, Dr. Bowden filed a motion to show authority, challenging TMB’s attorneys to show that they are accountable to the board members. TMB’s response did not address that fundamental constitutional issue, which provides another reason why TMB’s actions in this case overstep its authority.

5. TMB has violated Dr. Bowden’s constitutional right to due process.

On March 15, 2024, the ALJ issued an order granting TMB’s motion to compel without giving Dr. Bowden an opportunity to respond as required by the Texas Rules of Civil Procedure. On April 16, 2024, the ALJ granted sanctions to enforce that illegal order, despite knowing that the March 15 order had no basis in law and violated Dr. Bowden’s due process rights. The ALJ cannot grant a TMB motion without giving Dr. Bowden the right to respond and be heard. That is a violation of her due process rights.

D. Dr. Bowden respectfully requests that the Texas Attorney General intervene to protect her rights.

Dr. Bowden requests that the AG intervene in the SOAH proceeding to stop the ultra vires conduct foisted on Dr. Bowden by the state employees of “board staff” and the ALJ panel. Further, if we seek mandamus relief in the Travis County District Court seeking to prevent ultra vires conduct by the ALJ and TMB staff, we ask that the Attorney General’s Office appear in such state court proceeding, consent to a stay preventing the SOAH hearing from going forward, and permit discovery in the district court to illuminate the steps needed to ensure state employees comply with the law.

Finally, we request that the AG intervene in any subsequent appeal of a SOAH decision to a district court or court of appeals. That is the only way to safeguard the separation of powers, protect Dr. Bowden’s rights, and rein in TMB’s abusive, arbitrary, and politically motivated attacks on Dr. Bowden, which are an affront to the Texas constitution and the rule of law.

Sincerely,

MITBY PACHOLDER JOHNSON

PLLC

Steven Mitby

SJM/gl