STATE BOARD OF DENTAL EXAMINERS

333 Guadalupe, Tower 3, Suite 800, Austin, Texas 78701-3942

Phone (512) 463-6400 Fax (512) 463-7452

January 13, 2017

Bryan R. Eckert via email at breckert@sbgtv.com

Mandi Mendoza via email at AMendoza@sbgtv.com

Re: April Molina's Investigative Report on the Texas State Board of Dental Examiners

Dear Mr. Eckert and Ms. Mendoza,

We have been advised that April Molina is attempting to expose some "flaw" in our handling of
criminal investigations. Less than 1% of our annual case load involves criminal activity. It is apparent
that Ms. Molina is in contact with a disgruntled former employee and that the two of them have a
misunderstanding about the Board's role in criminal investigations. We hope this letter clarifies the
Board's obligations and actions and demonstrates our commitment to protecting the public.

The Texas State Board of Dental Examiners is an administrative agency charged with protecting
the public health through regulating the practice of dentistry. The Board is not responsible for
investigating and prosecuting the state's criminal laws. One significant difference between
administrative law and criminal law is that the burden of proof in an administrative trial is "a
preponderance of the evidence" while in a criminal trial it is "beyond a reasonable doubt." Violations of
Board laws and rules fall in the first category. As a result, the investigation of an administrative
violation is substantially different than the investigation of a criminal violation.

Some acts constitute both an administrative violation and a criminal violation for example,
practicing dentistry without a license (PDWOL). The administrative violation is investigated by the
Board and prosecuted by the Board at the State Office of Administrative Hearings. The criminal
violation is investigated by local law enforcement and prosecuted by the local district attorney in state
criminal court. The Board's investigation in a PDWOL case needs only go up to the point at which we
can show by a preponderance of the evidence that the person committed a dental act without a license. It
is unnecessary for us to investigate the case "beyond a reasonable doubt" because the laws we enforce
and the trials we participate in are not held to that standard. Other agencies and offices exist for the
purpose of pursuing the criminal violation and it would be wasteful and redundant for the Dental Board
to do so, too.

That said, Texas Dental Practice Act 254.009 states that "The board shall aid in the enforcement
of state law regulating the practice of dentistry." The Board has always complied with that law and
continues to do so. Using the PDWOL example, once a Board investigation has produced enough
evidence to prove the administrative violation, our investigation is closed and the case is referred to our
legal division for prosecution. The case is also referred to the relevant local law enforcement agency for
further investigation into the possible criminal violation. Often times the cases are worked alongside law
enforcement from the very beginning and the local authorities already have their own investigation
open. If and when the district attorney decides to prosecute the criminal violation, our investigators are
always available to testify.

The misunderstanding here stems from the Board's policy of not conducting criminal
investigations. The disgruntled former employee had directed staff to investigate the criminal aspects of
a case and hold the investigation open until the conclusion of the criminal prosecution. It is not the
Board's role to investigate and prosecute crimes and it does not make sense for the Board to keep an
administrative investigation open pending a criminal prosecution that it has no control over. The proper
policy is for the investigations division to close an investigation once the administrative violation can be
proven and then refer the criminal matter to local law enforcement. Board investigators are to assist and
cooperate with law enforcement and prosecutors on the criminal matter but they are not to conduct full-
blown criminal investigations at the expense of our administrative mission. Investigators monitor the
criminal case after the referral is made and if local law enforcement fails to file the case with the district
attorney, the Board will do so if it believes it is necessary to protect the public. If a licensee receives a
criminal conviction, a new administrative case will be opened based on that action.

Board investigators are currently working on joint investigations with state and federal law
enforcement agencies on cases involving administrative and criminal violations. In 2016, the Board
conducted 15 joint investigations with Texas law enforcement and 6 joint investigations with federal law
enforcement. Board investigators are always available to testify at criminal trials if the responsible
agencies request their assistance. This policy allows the Board to focus our resources on our
administrative mission of protecting the public while still fulfilling our obligation to aid in the
investigation and prosecution of criminal violations.

Sincerely,

Tyler Vance
General Counsel