The Texas Medical Board appeared incensed that anti-COVID crusader and Houston ENT Dr. Mary Talley Bowden would shine a light on the board after it has scrutinized her practice of medicine for well over a year.
“It is helpful to consider that Respondent appears to be conducting her own unlimited discovery through submission of burdensome open records requests to the Board. The volume of these requests goes well beyond the discovery limitations in 1 Texas Administrative Code § 155.255,” the board said in response to a Motion for Leave that had pleadings attached that took issue with the doctor’s roughly 40 requests for documents.
In an echo of another point of contention between Bowden and the board, the board’s lawyers complained that she had requested records related to the expert witnesses the board was consulting for her case. Previously, the board had denied Bowden the ability to call expert witnesses in her defense.
Then the board complained that she had requested to see the qualifications of the investigators who first handled her case, as well as a variety of other document requests, including records of how much TMB has spent on this complaint that has had several dozen pre-trial motions, numerous judges, and (now) a request for a 7-month continuance from the board.
1 Texas Administrative Code § 155.255 is statutory guidance given to the Texas Rules of Civil Procedure, a series of regulations guiding attorneys’ discovery. Although the rules do apply to plaintiffs or defendants when they represent themselves in court, the law is most frequently used for lawyers.
Discovery is the process by which parties to a lawsuit exchange information about the witnesses and evidence they intend to present at trial. Discovery allows all involved parties to be informed about the evidence that will be used for and against them and often, in practice, can encourage a pre-trial settlement.
However, not every request for documents someone makes may be part of discovery. For example, citizens are entitled by law to submit a Public Information Act request under Section 552 of the state code.
According to the Texas Attorney General, this law exists because of “the principle that government is the servant and not the master of the people.” It is intended to help citizens inform themselves about the affairs of government and hold agencies accountable.
Most often, any document obtained through 552 would not be useful in a lawsuit, but it may interest the public and be informative in terms of what is going on inside an agency.
When Bowden made her open records requests, she did so pursuant to Section 552, not any other law. The documents she requested, such as expenses the TMB has incurred pursuing her, would have no value whatsoever in a case regarding a medical board complaint.
However, those documents would likely be immensely interesting to voters, given numerous public officials’ condemnation of the TMB’s action against Bowden.
Rep. Steve Toth (R-The Woodlands) posted a letter on X in April addressed to Gov. Greg Abbott and Attorney General Ken Paxton.
“Dr. Bowden has been the victim of the reckless actions of the Texas Medical Board,” read the social media post. “The TMB violated the basic tenets of her due process rights. Why? Because she dared to use FDA-approved ivermectin and saved 6,000 lives in the process. @GovAbbott and @KenPaxtonTX, we need your help to stop this injustice.”
In the letter, he attacks the TMB for its “non-stop harassment campaign against Mary Talley Bowden for her efforts to treat patients with an FDA-approved medication.”
He also said the board acted “in defiance” of Abbott’s leadership and the 2023 state law SB 773. Known as the “Right to Try” bill, SB 773 allows “access to certain investigational drugs, biological products, and devices used in clinical trials by patients with severe chronic diseases.”
Rep. Tony Tinderholt (R-Arlington) joined Toth’s call and likewise asked Abbott and Paxton to intervene and “investigate and hold … TMB accountable for their abuse of a medical professional who saved lives!”
So far, neither Abbot nor Paxton has taken public action.
Notably, filing “too many” open records requests is not a criminal or civil offense. Therefore, it is unclear why TMB’s lawyers would think it is worth reporting to the court or how it would have any influence on the judge’s decision. Moreover, Section 552 of the state code authorizes citizens to request any information they like from an agency with only a few exceptions, like sensitive employee data or documents that may contain trade secrets.
Section 522.27 does allow agencies to throttle their responses to requests for “Vexatious requestors.” However, this carve-out is understood to apply to requesters who ask for documents in bad faith, including situations where a requestor is purely requesting documents to gum up the gears of government or their request is so nebulous that it would require the agency (for example) to produce every document in its possession. This power to throttle is seldom invoked and requires a determination from the State Attorney General. TMB’s legal counsel did not approach the attorney general nor invoke this power in their pleadings.
Previous open records requests have been bruising to the TMB.
The Dallas Express previously exposed serious allegations of potentially compromising bias within the board in an investigative series in mid-August. DX obtained open records documents showing at least one board member who heard Bowden’s case, Sharon Barnes, had a strong negative opinion of the doctor. Barnes appeared ready to share this opinion before she was halted in a text exchange with fellow member George DeLoach.
Although the board did not pursue a complaint against Bowden until 2023, other documents showed that Barnes and others at the TMB had been watching Bowden’s anti-mandate activism since at least 2021.
The court pleadings against Bowden called her requests “Backdoor discovery.”
DX asked her about this.
“I don’t know what ‘backdoor discovery’ is because I’m not a lawyer, but I sought permission from my lawyer to make Open Records requests to the Texas Medical Board before doing so,” she said.
DX also asked the doctor why she thought the board would go to the judge about something that is clearly not a crime.
She said, “I’m not sure why they are complaining.”
Regarding any potential implication that her requests are somehow beyond the board’s capacity to process them, she said, “They have responded to most of them, and I have paid them approximately $500 in fees to obtain the records I’ve requested.”
In this same vein, she later added, “I’m paying them the fees they requested, and they’re responding to my requests. I wasn’t aware there was a problem until I saw their complaint in the latest response they filed.”