State of Texas: Abortion rights uncertainty adds new urgency on the campaign trail

AUSTIN (Nexstar) — A Democratic congressional race in South Texas is garnering national attention, as the Roe v. Wade leaked opinion shakes up a tight runoff election.

Nine-term Congressman Henry Cuellar of Laredo’s well-known opposition to abortion is coming under fire by progressive challenger Jessica Cisneros, his former intern.

The incumbent is the sole Democrat who voted against codifying Roe v. Wade, the Women’s Health Protection Act, which failed in Congress at the end of February.

Cisneros, a young progressive backed by the likes of Sen. Bernie Senators of Vermont and Rep. Alexandria Ocasio-Cortez, has always criticized her opponent’s record on abortion rights.

But in the final weeks before the runoff election, a bombshell POLITICO report of a leaked U.S. Supreme Court draft opinion striking down Roe v. Wade came out, reigniting the nation’s focus on one of the most divisive topics: abortion.

“I am calling on Democratic Party leadership to withdraw their support of Henry Cuellar who is the last anti-choice Democrat in the House,” Cisneros said in a Tuesday statement.

Despite these calls, Cuellar was joined by the third-ranking House Democrat in San Antonio for a pre-planned campaign rally on a hot Wednesday evening.

Majority Whip Jim Clyburn of South Carolina told reporters Democrats are a “big tent party,” and there shouldn’t be a “litmus test in the Democratic Party.”

“I would ask anybody, which is more important? To have a pro-life Democrat or to have an anti-abortion Republican? Just come November, that could very well be the choice in this district,” Clyburn said.

KXAN asked Clyburn if he meant he thought that would be the scenario if Cisneros won the runoff and became the Democratic nominee. He said no.

“I don’t know what the district looks like anymore. But I know what the district was like the last time he ran. And if it looks anything like it was the last time he ran,” Clyburn said. “In fact, the national people rate this a toss up.”

Julia Manchester, a campaign reporter for The Hill, said with the risk of losing the House during the November midterms elections, she guesses this isn’t a seat Democrats want to risk.

“They’re going to back incumbents. They’re going to lean on those incumbents and support them. So I think there’s that factor. But there’s also a question of can a progressive be successful in this district,” she said.

Cuellar did not mention abortion during his stump speech to the crowd of roughly 80 people. Although, he touted enjoyed support from Speaker of the House Nancy Pelosi and Majority Leader Rep. Steny Hoyer, despite their differences.

The Laredo congressman told the crowd what those leaders are in charge of doing, as a reminder of the power he can harness for Texas by being in their good graces.

He told them about the work he and Clyburn did reaching across the aisle to win Republican votes in the Infrastructure Deal, which Texas will receive billions of to repair infrastructure and create jobs.

“When I was asking to be in appropriations, Nancy Pelosi could have picked anybody she could. We know she’s very progressive. I’m a little bit more moderate than she is,” Cuellar said. “But she decided to pick me … why? Because they knew I could get the job done.”

Manchester said the leaked draft opinion “threw a huge wrench” into the runoff election between Cuellar and Cisneros.

Outside of the San Antonio event, a small group of protesters stood outside with signs that read “codify Roe v. Wade.”

“This obviously allows Jessica Cisneros to really pressure him on this issue to say, ‘look, do you think Roe v. Wade should be overturned?” Manchester said. “And the congressman said in the statement that he does not think there should be an outright ban on abortion. But still a very fine line to walk.”

Sen. Elizabeth Warren of Massachusetts, who has endorsed Cisneros, called out Cuellar in a statement.

“Henry Cuellar is on the wrong side of every issue. He holds an A rating from the NRA, he voted with Donald Trump 69% of the time during Trump’s first two years in office. He even voted to build Trump’s stupid wall,” Warren said.

At his Wednesday rally, Cuellar described his differences as strengths.

“When it comes to certain issues, I will look at the district to decide. I don’t think you sent me to Washington to make political statements,” he said.

It’s a seat Republicans are looking to in obtaining their goals of a red tidal wave come November. South Texas, a historic Democratic stronghold, is the ultimate battleground for the GOP in Texas.

Alex Kuehler, a spokesperson for the RNC Southwest, has talked about counties like Zapata County, which although isn’t in Cuellar’s district, is in the greater part of South Texas. It flipped red in the 2020 presidential election for the first time in a century.

“We see an opportunity, which is why we’ve put three RNC Hispanic community centers down in that area,” Kuehler said. “One in Laredo, one in McAllen, and then we’ve also got one in San Antonio.”

He said the GOP is vying for the 28th district of Texas regardless of if the nominee is a moderate incumbent or a fresh progressive, but specifically highlighted characteristics of Cisneros he doesn’t think would play well in that race.

“Jessica Cisneros, based on the things that she has said and based on her platform, is an extreme left-wing liberal, and she doesn’t fit that district,” he said.

KXAN reached out to the Cisneros campaign but did not hear back in time for this story.

Manchester said this race will likely be the first test of how the possibility of a post-Roe nation affects elections.

“I think everyone will be paying very close attention to this race in particular because it could tell us about what to expect going forward on the issue of abortion,” she said.

Senators receive update on inflation impact on Texas budget

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Texas lawmakers received new information last week about the potential impact of inflation on the state budget. On Wednesday, the Senate Finance Committee heard a report from the State Comptroller’s office about the state’s revenue outlook.

Brad Reynolds, Chief Revenue Estimator for the Comptroller’s office told the committee that price increases have boosted sales tax collections as well as some other state revenues. But he said higher costs will also take a toll on the budget.

“The stress it’s going to cause you in budget writing is escalating costs for things that state agencies are instructed by law or were authorized in the appropriations act to be spending money on,” Reynolds told lawmakers.

“We’re fortunate to be where we’re at,” State Sen. Charles Perry (R-Lubbock) said. He pointed to reports that show the state with $311 billion in revenue, up $46 billion from when lawmakers left last session.

“But I can safely say we’re going to see $46 billion in increased costs,” Perry added, referring to inflationary pressure.

Texas doctors deemed a ‘threat’ to patients, still allowed to practice

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Sitting in a white-walled room, legs crossed and body just out-of-view of the hidden camera he brought along, an undercover officer said his back hurts — but “stronger medication” would help.

“We have to see if you have real pain first,” Dr. James Pierre said in the video, before he is seen giving a physical exam that lasts just 30 seconds.

“I’m going to start you off as acute pain,” Pierre told the Drug Enforcement Administration agent who posed as a patient. “Which, for you, will be no more than twice a day for the pain medication.”

Off-camera, Pierre wrote a prescription for 60 hydrocodone pills, according to the DEA in Houston. That is where Pierre owned and operated the West Parker Medical Clinic, which authorities say was nothing more than a cash-only “pill-mill.” Federal authorities arrested Pierre in 2017, the year after the undercover video was recorded.

This past March, Pierre, 52, was convicted of illegally prescribing more than a million opioid pills between 2015 and 2016. Federal investigators said Pierre sold potentially deadly mixtures of pain pills and muscle relaxers — called a “Las Vegas Cocktail” — without any legitimate medical purpose, charging upwards of $500 in cash. The operation, court records show, netted the unlicensed pain management clinic $2.4 million over one year. More than $300,000 of that went to Pierre’s pockets, according to the Department of Justice.

It turns out, the Texas Medical Board was aware he was giving hundreds of patients pain pills they didn’t need — yet still allowed Pierre to practice.

In 2016, the TMB’s own public records show Pierre’s medical license was suspended. The board said he operated an “unregistered” and “unlicensed pain management clinic” where he “nontherapeutically prescribed controlled substances.” In a one-month period in 2016, the board identified 729 prescriptions written for at least one opioid. In 2015, over the span of nearly nine months, Pierre wrote 8,934 prescriptions — 98% of which were for the highly-abused hydrocodone and carisoprodol — in some cases without any physical exam, the board also found.

“Respondent’s continuation in the practice of medicine would constitute a continuing threat to the public welfare,” the TMB wrote in its suspension order dated Aug. 26, 2016.

As if to put a fine point on it, leaving no room for doubt, the TMB in its suspension order defined “continuing threat” to mean: “a real danger to the health of a physician’s patients or to the public… caused through the physician’s lack of competence…”

Despite that warning, the board lifted Pierre’s suspension 10 months later on June 16, 2017.

In public disciplinary records, the board cited “mitigating factors” in its decision to allow Pierre to keep treating patients. Among them: he “expressed remorse;” had a “genuine misunderstanding” of pain management requirements; and was a “very young and inexperienced physician.” He was 46 years old at the time and had been practicing in Texas for over a decade, records show.

The TMB ruled Pierre could continue seeing patients with certain restrictions: He could not write long-term prescriptions for controlled substances or treat chronic pain patients for five years. Pierre was arrested on July 11, 2017 and released on a $100,000 bond.

More than a month after his federal conviction, Pierre’s license was still listed as “active” on the TMB website with no record of his criminal history.

“TMB is prohibited from discussing the specifics of confidential deliberations,” said TMB spokesperson Jarrett Schneider. “However, the individual was prohibited from treating for chronic pain for a period of five years in 2017. He had additional limitations placed on his practice, the location where he could practice, limits to prescribing controlled substances, and monitoring. The restrictions continue to remain in effect. The conviction you are citing occurred approximately two weeks ago [at the time the statement was issued]. As with all licensees, the Board will review this conviction for appropriate action based on our standard process.”

Pierre could face more than 20 years in prison when sentenced on June 27, according to a DOJ news release. Messages left with his attorney were not returned.

Patient advocates worry allowing doctors facing serious misconduct allegations to keep practicing puts patients at risk. Some worry dangerous doctors won’t stop unless they’re in handcuffs.

“We shouldn’t be relying on our police and prosecutors to finally stop these doctors from hurting people,” said Ware Wendell, the executive director of Texas Watch, a nonpartisan organization based in Austin that advocates for patient safety.

Wendell is pushing lawmakers to introduce legislation in response to what KXAN uncovered that would include, among other things, how physicians are disciplined. In response to our investigations, Rep. Julie Johnson (D-Farmers Branch) is drafting a bill and calling for the TMB to be audited.

“We need the medical board to step up and do its job,” Wendell said. “They say their job is safeguarding the public. Do it.”

The TMB declined an on-camera interview. In a statement, Schneider said the board would, generally speaking, “welcome the opportunity” to work with any member of the legislature “to better serve Texans.” He defended the way the board disciplines doctors.

“Each case will have its own set of facts, as well as possible aggravating and mitigating factors,” responded Schneider in a statement. “Active criminal charges can sometimes make it easier to limit a physician whereas criminal charges that are reduced or dismissed can make it more difficult to limit a physician. The same goes for participating and nonparticipating witnesses.”

Schneider said the agency places restrictions on physicians as a way to address an “immediate threat to the public.”

“The Board seeks to take an action based on the evidence available at the time that it feels can best protect the public in any given case,” he added, “while also providing the physician with statutorily required due process throughout the investigation and administrative proceedings.”

A KXAN investigation found at least eight cases where Texas doctors face multiple complaints — even convictions — yet the TMB allowed them to still practice. Six of those cases were from as recent as TMB’s March 2022 bulletin.

Most involve doctors credibly accused of sexual misconduct with patients.

That’s what happened with Austin family physician Dr. David Butler.

Like Pierre, the TMB labeled Butler a “threat to public welfare.” It suspended his license on Oct. 2, 2019. The board’s own investigation found a “pattern of inappropriate sexual contact” with at least 10 patients including a 17-year-old. For some of those patients, Butler “inappropriately prescribed” controlled substances “without medical justification,” the board determined.

But two months after suspending his medical license and calling him a “threat” to the public, the TMB lifted his suspension on Dec. 6.

“[Y]ou’re referring to a Temporary Suspension, which prescribed in statute, is a ‘temporary’ action until the Board takes a subsequent future action,” Schneider wrote in a statement. “The criminal charges against David Butler came after the Agreed Order was entered, and the Board suspended him again based on the criminal charges. The suspension of his license remains in effect today.”

That “Agreed Order” allowed Butler to keep treating patients again — but only men over 18. Within days of that action, the board warned Austin police about Butler’s “possible criminal violations” as it allowed him to practice.

Butler was only stopped from seeing patients after he was arrested on April 15, 2020 — four months after his license was reinstated — on possession of child pornography charges. Court records describe evidence as “scores” of images on a thumb drive, including some as young as toddlers.

Five days after his arrest, on April 20, the TMB again suspended Butler’s medical license. He was released from the Travis County Jail on a $50,000 bond and ordered not to have contact with minors. He is due back in court on June 8.

Butler declined to comment about the ongoing case.

He “plans to resume his practice in the future,” according to his website.

“In many instances, they’re bending over backwards to give the least harsh penalty so as to not interfere with the doctor’s ability to practice medicine,” said medical malpractice attorney Kay Van Wey, who represented victims of Texas neurosurgeon Dr. Christopher Duntsch. Five years ago Duntsch — dubbed “Dr. Death” in the media — was sentenced to life in prison for killing and maiming his patients.

The case, which gained national attention, highlighted the TMB’s inaction when it comes to stopping dangerous doctors from practicing.

“I honestly think there is some type of philosophical approach that they have where they really don’t want to interfere with the doctor’s ability to practice medicine,” Wey said. “You can’t be an imminent threat to your patients and then not be a few months later.”

According to its mission statement online, the TMB’s role is to “protect and enhance the public’s health, safety and welfare” by maintaining “standards of excellence and ensuring quality care” in part through “discipline.”

The mission is familiar to a TMB insider. KXAN agreed to conceal this current employee’s identity because they are not authorized to speak to the media and could be fired for doing so. This whistleblower, whose identity and employment KXAN has confirmed, isn’t surprised by the cases we uncovered.

“It tells you the board is very lax when it comes to reprimanding physicians,” the insider said.

The TMB employee said complaints from hospitals, doctors and even board members take “priority” over complaints made by patients. The agency, the employee explained, lacks the investigative resources needed to tackle every complaint and the will to take away a doctor’s ability to earn a living.

“Yes, we are here to protect the public,” the employee said. “But, in reality, I don’t think that they [TMB] do enough.”

The TMB declined to comment on this point.

“We do not have a comment regarding remarks from an unnamed individual,” Schneider said.

KXAN looked at physician disciplinary data from 2019to 2021 in Texas and compared it to Florida, a state with nearly the same number of physician licenses.

In the last three years, we found 83 Texas medical licenses were taken away or surrendered. That’s less than 2% of all TMB investigations.

In comparison, Florida had 136 licenses revoked or surrendered, equaling more than 5% of all its investigations.

Overall, in Florida, 50-66% of all investigations resulted in disciplinary actions in the last three years compared to just 10% in Texas.

Patient advocates like Wendell say the TMB needs a self-examination.

“If you care about patients, you need to aggressively act on behalf of the patient,” Wendell said. “If there’s a dangerous doctor, that doctor should not be practicing medicine in this state. The ability to practice medicine is a privilege — it’s not a right. And if that privilege is being abused, we need the medical board to step in on behalf of us, the patients, and make sure we are actually protected.”

Questions raised about political donations by Texas Medical Board members

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Gov. Greg Abbott tapped top-dollar donors to sit on the Texas Medical Board. He also appointed members — tasked with representing the consumer — who come from telecom, business, real estate and energy sectors, with no obvious patient advocacy or medical experience, a KXAN investigation revealed.

The TMB’s mission is to “protect and enhance the public’s health, safety and welfare” but some advocates worry that comes with a political price tag.

“The question isn’t: ‘Is this someone who donated a bunch of money to a political campaign? Is this someone who checks a political box?,'” said Ware Wendell, the executive director of the non-partisan organization Texas Watch, which advocates for patient safety. “The question should be: ‘Is this someone who’s going to make sure that patients are protected?'”

KXAN wanted to see how money and politics intersect with patient safety in Texas. Digging through campaign finance records, we found several board members, appointed by the governor, who have collectively donated hundreds of thousands of dollars to Abbott’s campaign, according to records dating back to 2014.

By law, the 19-member medical board is in charge of licensing and regulating physicians in Texas. All are appointed by the governor to serve six-year terms. A dozen of the TMB board members — more than half — are doctors. Less than half, seven, are considered “public members.” These are members who, by design, have no medical background and help balance the board by defending the interests of patients and consumers. Advocates like this approach and have pushed for more outside representation on medical boards across the country.

The TMB’s website doesn’t specifically identify which of its members are “public,” like other states do. KXAN found some members, meant to represent the average patient and consumer, who don’t have an obvious track record of patient advocacy work but do have a history of donating to Abbott since 2014:

• Arun Agarwal, CEO of Nextt, a large textile company, gave the governor $196,758.
• Michael Cokinos, president of Cokinos Energy Corporation in Houston, donated $32,500 to Abbott’s re-election.

KXAN searched campaign records for every board member. In addition to Agarwal and Cokinos, we found five doctors gave the governor between $7,425 and $85,000, according to campaign finance records. The highest amount came from Dr. Sherif Zaafran, the board’s president.

KXAN analyzed every state medical board in the country. In nearly every state, board members are governor-appointed. Nationwide, Texas is tied for first with the most number of public members on its board. Despite that, Wendell, and others, worry that appointing donors allows for the potential to politicize these positions.

“We need to take politics out of patient safety,” he said.

That is especially true in Texas, Wendell said, after a series of KXAN investigations revealed the TMB is not following the law by keeping dozens of out-of-state disciplinary records secret and allowing some physicians the board deemed “a threat to public welfare” to keep practicing, with restrictions.

A TMB spokesperson declined an on-camera interview but in a statement defended the way physicians are disciplined and said the agency “does not have appointment authority” when it comes to who gets to sit on the medical board.

“The TMB does not control the selection/appointment of Board members,” TMB spokesperson Jarrett Schneider wrote in a statement. “Requirements of individual board members are set out in state law as you noted. The Governor has appointment authority with the Texas Senate giving confirmation.”

At least one current TMB employee believes the governor should appoint public members with backgrounds in patient advocacy and safety work. KXAN agreed to conceal this person’s identity because they are not authorized to speak to reporters and could be fired for doing so.

“I’m not shocked that these people who are appointed are big donors,” the employee said. “I don’t think it should be that way. It is very political.”

This insider believes the current system allows “bad doctors” to keep practicing, which they say is “sad.”

“I think there are some board members that would rather protect the physicians because they are physicians themselves,” the TMB employee said. “I think they could do a lot more to protect the public.”

“We do not have a comment regarding remarks from an unnamed individual,” Schneider said.

Longtime Austin patient advocate, Lisa McGiffert, with the Patient Safety Action Network, said she isn’t surprised by what KXAN uncovered.

“Typically in Texas,” she said, standing in front of the Capitol, “donors get appointed to these important boards. I’ve seen that for 30 years.”

Like Wendell, McGiffert is also pushing for legislation in response to what KXAN uncovered. In 2017, she added her name to a letter sent to Abbott, which was signed by more than a dozen consumer advocates. The letter asked for more public members to be appointed to the medical board. The letter was sent to all 50 states.

“Your state Medical Examining Board is an essential organization protecting citizens from unprofessional and incompetent doctors,” the letter said, according to an email of it, which was forwarded to KXAN. “Public members (sometimes referred to as citizen or consumer members) play a critical role on Medical Examining Boards. Because they should be free of financial and other professional ties to the health care professions, their experience can ground a medical examining board and provide insight and common sense to deliberations.”

The coalition recommended appointing public members with a “demonstrated interest in health care safety” and “a track record of consumer and/or patient interest advocacy.”

McGiffert said she never heard back.

The governor’s office did not respond to multiple requests for comment.

“Your reporting has uncovered ways that the Texas Medical Board has not always taken the public’s interest — in actions against doctors who were harming patients, and in some cases, repeatedly harming patients,” McGiffert said. “I think people, absolutely, who are patient advocates, should be considered [for board-appointment].”

McGiffert and Wendell are both concerned about what KXAN uncovered, including possible conflicts of interest. Last year, TMB board member and physician Dr. Satish Nayak — who donated $38,920 to the governor — entered into a “remedial plan,” according to the TMB’s public records. The board determined he “failed to keep adequate medical records for multiple patients.”

Under the Texas Administrative Code, that constitutes “grounds for potential removal” from the board by the governor. Two of Nayak’s fellow board members offered him the opportunity to take an eight-hour class as part of the remediation plan. Towards the bottom of the board’s order against Nayak, written in all caps and bold letters, the board wrote: “THIS REMEDIAL PLAN IS NON-DISCIPLINARY.” The governor did not respond to requests asking if he is aware of this or made attempts to remove Nayak.

According to the TAC, a board member who is the “subject of a non-disciplinary or disciplinary action, including but not limited to any remedial plan, board order, or administrative penalty, regardless of the nature of the violation(s)” can face “potential removal.”

The American Medical Association writes doctors have an “ethical obligation” to manage records appropriately, which serve “important patient interests for present health care and future needs, as well as insurance, employment, and other purposes.”

The TMB’s spokesperson deferred to the governor.

“TMB does not have appointment nor removal authority of Board Members,” Schneider wrote in a statement. “The TMB does not control the selection/appointment of Board Members… The Governor has appointment authority with the Texas Senate giving confirmation.”

Records detailing Nayak’s initial complaint are not on the TMB’s website for the public to view. The TMB says complaint records are confidential. The action was also not posted in the TMB’s quarterly bulletin, even though actions taken against other physicians were, for similar offenses.

“Remedial plans are ‘non-disciplinary’ actions by statute and are not included with disciplinary orders in publications such as the TMB bulletin,” Schneider said. “However, they are public documents and are posted to the online profiles as required by law. Remedial Plans were created by state law enacted in 2011. All physicians receive the same treatment regarding the posting of Remedial Plans.”

Schneider would only say “each case will have its own set of facts that must be evaluated regardless of sharing similar allegations.” He denies Nayak received any preferential treatment.

“The enforcement process is the same whether the individual is a Board member or not,” Schneider said. “The entire process, including who hears the case, follows all statutes and rules just like every other physician. TMB has no authority to create a separate process for TMB-licensed Board Members with alleged violations.”

These types of standard-of-care violations are reviewed by expert doctors, not affiliated with the TMB, Schneider said, noting they are from outside the area where the complaint was made.

KXAN reached out to Nayak along with other TMB board members identified in this report for comment but did not hear back.

“Your reporting has uncovered real problems in our state, a clear and present danger for patients,” said Wendell. “If the Texas Medical Board is really about protecting patients, we need people on the Texas Medical Board who have a demonstrated history of protecting patients. It makes sense.”

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