New Service Rule Applicable to the State Prosecuting Attorney Per Misc. Docket No. 19-012
1. “When a statute, Section 165.152 of the Texas Occupations Code, generally proscribes conduct that is also proscribed by a more specific statute, Section 165.153 providing for a lesser range of punishment, is it a violation of due process and due course of law to punish the offender in accordance with the broader statute calling for a greater range of punishment?”
2. “Is it ever proper for a Court to construe a statute, Section 165.153 of the Texas Occupations Code, in a manner that renders the entire statute superfluous?”
DiRuzzo was licensed as a chiropractor, not a doctor. He started an organization called the Society for the Study of Cell and Molecular Biology. Interested persons could join the organization, sign a contract, and pay the fees, and DiRuzzo would withdraw vials of their blood and later reinject them with “stem cells” derived from the blood. The contract disclaimed that the procedure constituted the practice of medicine or treatment. DiRuzzo performed the procedure on several customers with ailments including diabetes and cancer, and some were satisfied with the results. A grand jury returned an indictment alleging that DiRuzzo had practiced medicine without a license, citing Occupations Code §§ 155.001, 165.152, both of which regulate doctors.
Section 155.001 of the Occupations Code subtitle regulating doctors provides that a person may not practice medicine without a license. The subtitle also includes the following criminal offenses:
Section Title Elements
§ 165.151 “General Criminal Penalty” the person violates this subtitle
§ 165.152 “Practicing Medicine In Violation of Subtitle” the person practices medicine in violation of this subtitle
§ 165.153 “Criminal Penalties for Additional Harm” the person practices medicine without a license and causes physical, psychological, or financial harm
Section 165.151 is a Class A misdemeanor “if another penalty is not specified for the offense.” Section 165.152 is a third-degree felony and, on final conviction, “a person forfeits all rights and privileges conferred by virtue of a license issued under this subtitle.” Section 165.153 is a third-degree felony if the defendant’s unlicensed practice of medicine results in physical or psychological harm. It is a state-jail felony if it results only in financial harm.
The State did not allege that anyone was harmed, financially or otherwise. DiRuzzo filed a motion to quash, arguing that the indictment alleged misdemeanor—not felony—offenses. He argued that § 165.152 only applies to licensed physicians. Unlicensed practice is specifically governed by § 165.153 if there is harm. He argued that without a showing of harm, § 165.151 (the Class-A-misdemeanor general provision) applied. The trial court denied the motion. A jury convicted DiRuzzo of sixteen counts of third-degree-felony illegal practice of medicine, and he was assessed prison time.
On appeal, DiRuzzo argued the trial court lacked jurisdiction because the indictment failed to allege a felony offense. The court of appeals disagreed and rejected his interpretation of the statutes. It held that nothing in § 165.152 limits the provision to licensed physicians. It noted that § 165.152 was originally a Class A misdemeanor, and § 165.153 provided for enhancement to a state-jail or third-degree felony in case of harm from the unlicensed practice of medicine. The legislature later amended § 165.152, making it a third-degree felony. The court of appeals found it was not absurd that § 165.153 now requires an additional showing of harm to provide the same or lower grade of offense. The court acknowledged that its construction essentially renders § 165.153 superfluous since the State would not elect to prove an additional harm element without the benefit of an enhanced penalty.
In his petition of discretionary review, DiRuzzo argues that, unlike his interpretation (limiting § 165.152 to licensed physicians), the court of appeals’s interpretation fails to give effective to each word or phrase used by the legislature. He also contends the court’s interpretation violates his due process right to be prosecuted under a special statute with a lesser punishment range when that statute is in pari materia with a broader statute.