Texas Association of Acupuncture and Oriental Medicine v. Texas Board of Chiropractic Examiners And Patricia Gilbert, Executive Director in Her Official Capacity
Opinion
ACCEPTED 03-15-00262-CV 7366025 THIRD COURT OF APPEALS AUSTIN, TEXAS 10/14/2015 10:25:40 AM JEFFREY D. KYLE CLERK No. 03-15-00262-CV _______________________________________________________________ FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS 10/14/2015 10:25:40 AM AT AUSTIN JEFFREY D. KYLE Clerk _______________________________________________________________
TEXAS ASSOCIATION OF ACUPUNCTURE AND ORIENTAL MEDICINE, Appellant, v. TEXAS BOARD OF CHIROPRACTIC EXAMINERS AND YVETTE YARBROUGH, EXECUTIVE DIRECTOR IN HER OFFICIAL CAPACITY, Appellees. ________________________________________________________________
On Appeal from the 201st Judicial District Court Of Travis County, Texas Cause No. D-1-GN-14-000355 __________________________________________________________________
MOTION TO STRIKE AND APPELLEES’ BRIEF __________________________________________________________________
KEN PAXTON JOE H. THRASH Attorney General of Texas Assistant Attorney General State Bar No. 19995500 CHARLES E. ROY Administrative Law Division First Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL OF TEXAS JAMES E. DAVIS P.O. Box 12548, Capitol Station Deputy Attorney General for Civil Austin, Texas 78711-2548 Litigation Telephone: (512) 475-4203 Facsimile: (512) 320-0167 DAVID A. TALBOT, JR. Joe.Thrash@texasattorneygeneral.gov Chief, Administrative Law Division ATTORNEYS FOR APPELLEES ORAL ARGUMENT REQUESTED i TABLE OF CONTENTS
TABLE OF CONTENTS ......................................................................................... ii
TABLE OF AUTHORITIES .................................................................................. iv
MOTION TO STRIKE .............................................................................................2
APPELLEES’ BRIEF ...............................................................................................4
STATEMENT OF THE CASE .................................................................................4
ISSUES PRESENTED ..............................................................................................5
STATEMENT OF FACTS .......................................................................................5
SUMMARY OF THE ARGUMENT .....................................................................12
ARGUMENT AND AUTHORITIES .....................................................................14
I. The Board of Chiropractic Examiners Has Statutory Authority Necessary to Adopt Its Rules Allowing Chiropractors to Practice Acupuncture. ..............15
A. The Unambiguous Language of the Acupuncture Act Creates an Exemption for Chiropractors. .......................................................................16 B. If the Law Is Ambiguous, Other Canons of Construction Support the Board’s Rules. ............................................................................................. 21
1. The Meaning of “Incisive” Is Ambiguous. ............................................21
2. The Legislative History Supports the Board’s Rules. ...........................24 3. The Acupuncture Act and the Chiropractic Act are In Pari Materia. ..26
4. Remedial Statutes Should Be Interpreted Broadly. ..............................29 5. The Board’s Interpretation Is Entitled to Serious Consideration. ........30
6. The Legislature Is Charged with Knowledge of the Law. ....................31
ii C. The Attorney General’s Opinions Were Correct. ........................................32 II. The Amendment to the Acupuncture Act Did Not Violate the Texas Constitution. .....................................................................................................33
A. Senate Bill 361 Did Not Create a Preference for a School of Medicine in Violation of Article XVI, § 31 of the Texas Constitution. .....................33 B. Senate Bill 361 Did Not Violate the One-Subject Rule of Art. III, § 35(a) of the Texas Constitution. ...............................................................38
III. Statute of Limitations. .......................................................................................40 IV. Issues Not Before the Court .............................................................................41
A. The Issue Of Whether Chiropractors Are Adequately Trained To Perform Acupuncture Safely Is A Fact Issue Not Before This Court..........41 B. The Behavior Of The Chiropractic Board In Defining The Scope Of Practice In Previous Cases Is Irrelevant To This Case. ..............................42
PRAYER .................................................................................................................43
CERTIFICATE OF COMPLIANCE ......................................................................44
CERTIFICATE OF SERVICE ...............................................................................44
iii TABLE OF AUTHORITIES
Cases
Acker v. Tex. Water Comm’n, 790 S.W.2d 299 (Tex. 1990) ...................................28
Baker v. State, 240 S.W. 924 (Tex. Crim. App. 1921) ............................................36
Burch v. City of San Antonio, 518 S.W.2d 540 (Tex. 1975) ...................................29
Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771 (Tex. App.— Dallas 2005, pet. denied) ................................................................................3, 26
City of Marshall v. City of Uncertain, 206 S.W.3d 97 (Tex. 2006) ........................17
City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273 (1951) ..29
City of Waco v. Kelly, 309 S.W.3d 536 (Tex. 2010) ...............................................24
Cockrum v. State, 24 Tex. 394 (1859) .....................................................................16
Collins v. Tex., 223 U.S. 288 (1912)........................................................................35
Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238 (Tex. 2008)................................................................................................... 17, 18
Continental Cas. Ins. Co. v. Functional Restoration Assoc., 19 S.W.3d 393 (Tex. 2000).................................................................................16
Dellinger v. State, 115 Tex. Crim. 480, 28 S.W.2d 537 (1930) ..............................38
DLB Architects, P.C. v. Weaver, 305 S.W.3d 407 (Tex. App.— Dallas 2010, pet. denied) ....................................................................................26
Dodd v. Meno, 870 S.W.2d 4 (Tex. 1994) ...............................................................30
Dowdell v. McBride, 92 Tex. 239, 47 S.W. 524 (1898) ..........................................35
Edgewood Ind. Sch. Dist. v. Meno, 917 S.W.2d 717 (Tex.
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ACCEPTED 03-15-00262-CV 7366025 THIRD COURT OF APPEALS AUSTIN, TEXAS 10/14/2015 10:25:40 AM JEFFREY D. KYLE CLERK No. 03-15-00262-CV _______________________________________________________________ FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS 10/14/2015 10:25:40 AM AT AUSTIN JEFFREY D. KYLE Clerk _______________________________________________________________
TEXAS ASSOCIATION OF ACUPUNCTURE AND ORIENTAL MEDICINE, Appellant, v. TEXAS BOARD OF CHIROPRACTIC EXAMINERS AND YVETTE YARBROUGH, EXECUTIVE DIRECTOR IN HER OFFICIAL CAPACITY, Appellees. ________________________________________________________________
On Appeal from the 201st Judicial District Court Of Travis County, Texas Cause No. D-1-GN-14-000355 __________________________________________________________________
MOTION TO STRIKE AND APPELLEES’ BRIEF __________________________________________________________________
KEN PAXTON JOE H. THRASH Attorney General of Texas Assistant Attorney General State Bar No. 19995500 CHARLES E. ROY Administrative Law Division First Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL OF TEXAS JAMES E. DAVIS P.O. Box 12548, Capitol Station Deputy Attorney General for Civil Austin, Texas 78711-2548 Litigation Telephone: (512) 475-4203 Facsimile: (512) 320-0167 DAVID A. TALBOT, JR. Joe.Thrash@texasattorneygeneral.gov Chief, Administrative Law Division ATTORNEYS FOR APPELLEES ORAL ARGUMENT REQUESTED i TABLE OF CONTENTS
TABLE OF CONTENTS ......................................................................................... ii
TABLE OF AUTHORITIES .................................................................................. iv
MOTION TO STRIKE .............................................................................................2
APPELLEES’ BRIEF ...............................................................................................4
STATEMENT OF THE CASE .................................................................................4
ISSUES PRESENTED ..............................................................................................5
STATEMENT OF FACTS .......................................................................................5
SUMMARY OF THE ARGUMENT .....................................................................12
ARGUMENT AND AUTHORITIES .....................................................................14
I. The Board of Chiropractic Examiners Has Statutory Authority Necessary to Adopt Its Rules Allowing Chiropractors to Practice Acupuncture. ..............15
A. The Unambiguous Language of the Acupuncture Act Creates an Exemption for Chiropractors. .......................................................................16 B. If the Law Is Ambiguous, Other Canons of Construction Support the Board’s Rules. ............................................................................................. 21
1. The Meaning of “Incisive” Is Ambiguous. ............................................21
2. The Legislative History Supports the Board’s Rules. ...........................24 3. The Acupuncture Act and the Chiropractic Act are In Pari Materia. ..26
4. Remedial Statutes Should Be Interpreted Broadly. ..............................29 5. The Board’s Interpretation Is Entitled to Serious Consideration. ........30
6. The Legislature Is Charged with Knowledge of the Law. ....................31
ii C. The Attorney General’s Opinions Were Correct. ........................................32 II. The Amendment to the Acupuncture Act Did Not Violate the Texas Constitution. .....................................................................................................33
A. Senate Bill 361 Did Not Create a Preference for a School of Medicine in Violation of Article XVI, § 31 of the Texas Constitution. .....................33 B. Senate Bill 361 Did Not Violate the One-Subject Rule of Art. III, § 35(a) of the Texas Constitution. ...............................................................38
III. Statute of Limitations. .......................................................................................40 IV. Issues Not Before the Court .............................................................................41
A. The Issue Of Whether Chiropractors Are Adequately Trained To Perform Acupuncture Safely Is A Fact Issue Not Before This Court..........41 B. The Behavior Of The Chiropractic Board In Defining The Scope Of Practice In Previous Cases Is Irrelevant To This Case. ..............................42
PRAYER .................................................................................................................43
CERTIFICATE OF COMPLIANCE ......................................................................44
CERTIFICATE OF SERVICE ...............................................................................44
iii TABLE OF AUTHORITIES
Cases
Acker v. Tex. Water Comm’n, 790 S.W.2d 299 (Tex. 1990) ...................................28
Baker v. State, 240 S.W. 924 (Tex. Crim. App. 1921) ............................................36
Burch v. City of San Antonio, 518 S.W.2d 540 (Tex. 1975) ...................................29
Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771 (Tex. App.— Dallas 2005, pet. denied) ................................................................................3, 26
City of Marshall v. City of Uncertain, 206 S.W.3d 97 (Tex. 2006) ........................17
City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273 (1951) ..29
City of Waco v. Kelly, 309 S.W.3d 536 (Tex. 2010) ...............................................24
Cockrum v. State, 24 Tex. 394 (1859) .....................................................................16
Collins v. Tex., 223 U.S. 288 (1912)........................................................................35
Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238 (Tex. 2008)................................................................................................... 17, 18
Continental Cas. Ins. Co. v. Functional Restoration Assoc., 19 S.W.3d 393 (Tex. 2000).................................................................................16
Dellinger v. State, 115 Tex. Crim. 480, 28 S.W.2d 537 (1930) ..............................38
DLB Architects, P.C. v. Weaver, 305 S.W.3d 407 (Tex. App.— Dallas 2010, pet. denied) ....................................................................................26
Dodd v. Meno, 870 S.W.2d 4 (Tex. 1994) ...............................................................30
Dowdell v. McBride, 92 Tex. 239, 47 S.W. 524 (1898) ..........................................35
Edgewood Ind. Sch. Dist. v. Meno, 917 S.W.2d 717 (Tex. 1995) ...........................17
iv Ex parte Collins, 121 S.W. 501 (Tex. Crim. App. 1909) ........................................35
Ex parte Halsted, 182 S.W.2d 479 (Tex. Crim. App. 1944) ...................................36
Ex parte Jimenez, 159 Tex. 183, 317 S.W.2d 189 (1958) ............................... 38, 39
Ex parte Jones, 440 S.W.3d 628 (Tex. Crim. App. 2014).......................................39
In re J.M.R., 149 S.W.3d 289 (Tex. App.—Austin 2004, no pet.) ................... 26, 28
In re Smith, 333 S.W.3d 582 (Tex. 2011) ................................................................32
Johnson v. State, 267 S.W. 1057 (Tex. Civ. App.—Dallas 1924, writ refused) .....35
La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558 (Tex. 1984)..........................................................................................................20
LeCroy v. Hanlon, 713 S.W.2d 335 (Tex. 1986) .....................................................38
Little v. Smith, 943 S.W.2d 414 (Tex. 1997) ...........................................................40
McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125 (Tex. Comm’n App. 1942, op. adopted) ............................................................31
Railroad Comm’n v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619 (Tex. 2011) ..............................................................................30
Rogers v. Tex. Bd. of Architectural Exam’rs, 390 S.W.3d 377 (Tex. App.—Austin 2011, no pet.) .....................................................................24
Schlichting v. Tex. St. Bd. of Med. Examiners, 158 Tex. 279, 310 S.W.2d 557 (1957) ................................................................................ 34, 37
Stone v. State, 86 S.W. 1029 (Tex. Crim. App. 1905) ............................................34
Teem v. State, 183 S.W.1144 (Tex. Crim. App. 1916) ............................................36
Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n, 375 S.W.3d 464 (Tex. App.—Austin 2012, pet. denied) .............................. 23, 27, 30, 37, 42
v Tex. Emp’t Comm’n v. Holberg, 440 S.W.2d 38 (Tex. 1969) .................................26
Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010)..........................................................................................................22
Tex. Ass’n of Psychological Assocs. v. Tex. State Bd. of Exam’rs of Psychologists 439 S.W.3d 597 (Tex. App.—Austin 2014, no pet.) ............ 27, 31
Thompson v. Tex. State Bd. of Med. Exam’rs, 570 S.W.2d 123 (Tex. Civ. App.—Tyler 1978, writ ref’d n.r.e.) .....................................................................6
TracFone Wireless, Inc. v. Comm’n on State Emergency Commc’ns, 397 S.W.3d 173 (Tex. 2013) ..............................................................................20
Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005)............................14
Wilson v. State Bd. of Naturopathic Exam’rs, 298 S.W. 946 (Tex. Civ. App.—Austin 1957, writ ref’d n.r.e.) ...............................................35
Constitutional Provisions
Tex. Const. Art. XVI, § 31............................................................................... passim
Tex. Const. Art. XVI, § 35. ...........................................................................4, 13, 40
Tex. Const., Art. III, § 35(a) ....................................................................................38
Statutes
Act of February 22, 1901, 27th Leg., R.S., ch. 12, 1901 Tex. Gen. Laws 12 .........34
Act of August 27, 1921, 37th Leg., 1st C.S., ch. 51, 1921 Tex. Gen. Laws 159 ....35
Act of May 5, 1943, 48th Leg., R.S., ch. 359, 1943 Tex. Gen. Laws 627 ..............36
Act of April 21, 1949, 51st Leg., R.S., ch. 94, 1949 Tex. Gen. Laws 160 .........9, 36
Act of May 31, 1993, 73d Leg., R.S., ch. 862, §§ 6.01-.14, § 37, 1993 vi Tex. Gen. Laws 3400 ............................................................................................6
Act of May 28, 1995, 74th Tex. Leg. R.S., ch. 965, § 20, 1995 Tex. Gen. Laws 4802 ...........................................................................................................42
Act of May 28, 1997, 75th Leg., R.S., ch. 1170, 1997 Tex. Gen. Laws 4418 ........10
Act of May 13, 1999, 76th Leg., R.S., ch. 388, § 6(a), 1999 Tex. Gen. Laws 1431, 2439-40 .................................................................................. 6, 9, 10
Act of May 27, 2005, 79th Leg., R.S., ch. 1020; 2005 Tex. Gen. Laws 3464 ........12
S.B. 361, 75th Leg., R.S., May 8, 1997 ............................................................ passim
Tex. Gov’t Code § 201.001......................................................................................19
Tex. Gov’t Code § 311.011......................................................................................17
Tex. Gov’t Code § 311.021..................................................................................... 17
Tex. Gov’t Code § 311.021(2) .................................................................................18
Tex. Gov’t Code § 311.023(3) .................................................................................24
Tex. Gov’t Code § 311.023(5) .................................................................................30
Tex. Gov’t Code § 311.026(a) .................................................................................20
Tex. Gov’t Code § 311.026(b) .................................................................................20
Tex. Gov't Code § 311.023 ............................................................................... 24, 28
Tex. Gov't Code § 2001.038 ......................................................................................4
Tex. Ins. Code § 1451.001(18) ................................................................................28
Tex. Occ. Code § 151.052 .......................................................................... 19, 21, 40
Tex. Occ. Code § 151.052(a)(3) ..............................................................................20
vii Tex. Occ. Code § 151.052(3) ...................................................................................19
Tex. Occ. Code § 201.002(a)(3) ........................................................... 21, 22, 27, 30
Tex. Occ. Code § 201.002(a)(4) ....................................................................... 12, 22
Tex. Occ. Code § 201.002(c)(1) ..............................................................................31
Tex. Occ. Code § 201.1525 .....................................................................................12
Tex. Occ. Code § 201.1526 .....................................................................................12
Tex. Occ. Code § 205.001(2) ........................................................................ 4, 15, 18
Tex. Occ. Code § 205.001(2)(A) ...................................................................... 19, 30
Tex. Occ. Code § 205.003(a) ...................................................................... 20, 39, 40
Tex. Occ. Code § 205.003(b)(2) ..............................................................................19
V.T.C.S. art. 4495b, § 6.03(a) ..................................................................................32
V.T.C.S. art. 4512b, § 13a(b) ...............................................................................9, 32
Other Authorities H.J. of Tex., 75th Leg., R.S. 2743-44 (1997) ...........................................................10
H.J. of Tex., 75th Leg., R.S. 2982 (1997) .................................................................10
H.J. of Tex., 75th Leg., R.S. 4024 (1997) .................................................................10
S.J. of Tex., 75th Leg., R.S. 1325 (1997) ...................................................................8
S.J. of Tex., 75th Leg., R.S. 2321-22 (1997) ............................................................10
S.J. of Tex., 75th Leg., R.S. 3173 (1997) .................................................................10
13 Tex. Reg. 4972 (1988) ..........................................................................................7 viii 31 Tex. Reg. 4613 (June 2, 2006) ............................................................................12
34 Tex. Reg. 4333 (2009) ........................................................................................12
GEORGE D. BRADEN ET AL., THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 766 (1977) ...............................34
SUNSET STAFF REPORT, TEXAS BOARD OF CHIROPRACTIC EXAMINERS, (Feb. 2004) ..........................................................................................................11
Tex. Att’y Gen. Op. No. JM-125 (1984) ...................................................................6
Tex. Att’y Gen. Op. No. DM-415 (1996) ........................................................ passim
Tex. Att’y Gen. Op. No. DM-471 (1998) ................................................... 11, 32, 33
Tex. Att’y Gen. Op. No. DM-472 (1998) ......................................................... 12, 22
Rules
22 Tex. Admin. Code § 75.1 ......................................................................................6
22 Tex. Admin. Code § 75.1(7) .................................................................................7
22 Tex. Admin. Code § 75.17 ..............................................................................4, 12
22 Tex. Admin. Code § 75.17(b)(3) ........................................................................23
22 Tex. Admin. Code § 75.21 ..............................................................................4, 12
22 Tex. Admin. Code § 78.13 ....................................................................................4
22 Tex. Admin. Code § 78.13(a)(4).....................................................................4, 23
22 Tex. Admin. Code § 78.13(b)(2) ..........................................................................4
22 Tex. Admin. Code § 78.13(e)(2)(C) .....................................................................4
ix 22 Tex. Admin. Code § 78.14 ....................................................................................4
22 Tex. Admin. Code § 78.14(a) ...............................................................................5
Rules of the Texas House, 75th Session, 1997, Rule 11, §7(3)(B) ..........................10
Tex. R. App. P. 38.1(g) ..............................................................................................3
x No. 03-15-00262-CV _______________________________________________________________
IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN _______________________________________________________________
TEXAS ASSOCIATION OF ACUPUNCTURE AND ORIENTAL MEDICINE, Appellant, v. TEXAS BOARD OF CHIROPRACTIC EXAMINERS AND YVETTE YARBROUGH, EXECUTIVE DIRECTOR IN HER OFFICIAL CAPACITY, Appellees. ________________________________________________________________
On Appeal from the 201st Judicial District Court Of Travis County, Texas Cause No. D-1-GN-14-000355 __________________________________________________________________
MOTION TO STRIKE AND APPELLEES’ BRIEF __________________________________________________________________
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW Appellees, the Texas Board of Chiropractic Examiners (Board)
and Yvette Yarbrough, Executive Director (Ms. Yarbrough) in this cause, by and
through their attorney of record, Ken Paxton, Attorney General of Texas, and the
undersigned Assistant Attorney General, and file this brief in response to the brief
of appellant Texas Association of Acupuncture and Oriental Medicine (TAAOM).
1 In addition, the Board files a Motion to Strike some argument and documents
referenced in TAAOM’s Brief because they are not part of the record on appeal.
MOTION TO STRIKE
The Board moves to strike those portions of the Appellant’s Brief that rely on
the following documents referred to in TAAOM’s Brief, because they were not
presented to or relied upon by the trial court in rendering its judgment and the
documents are not part of the Clerk’s Record or otherwise made a part of the record
on appeal:
Footnote 29. Testimony of Yvette Yarbrough, Executive Director, Texas Board of Chiropractic Examiners, at https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3
Footnote 32. ACAOM Accreditation Manual, available at http://www.acaom.org/documents/accreditation_manual_712.pdf.
Footnote 33. AOMA Graduate School of Integrative Medicine, Graduate Program Catalog 2014-2015, available at http://aoma.edu/assets/uploads/files/AOMA_MAcOM_2014-15-w.pdf; Texas Health and Science University, Masters of Science in Acupuncture and Oriental Medicine Curriculum, available at http://www.thsu.edu/our-programs/ms- aom-curriculum/; American College of Acupuncture and Oriental Medicine, 2015- 2016 Catalog, available at http://acaom.edu/attachments/Catalog.pdf.
Footnote 34. Council of Colleges of Acupuncture and Oriental Medicine Clean Needle Technique Manual, Best Practices for Acupuncture Needle Safety and Related Procedures (2015), available at http://www.ccaom.org/ downloads/7thEditionManualEnglishPDFVersion.pdf.
Footnote 35. National Certification Commission of Acupuncture and Oriental Medicine Eligibility Requirements, available at http://www.nccaom.org /applicants/eligibility-requirements.
2 Footnote 36. NBCE, Acupuncture Examination, http://mynbce.org/wp- content/uploads/205/07/acu_2015.pdf; Texas Board of Chiropractic Examiners meeting on acupuncture, July 11, 2012, at 2:04-2:07, available at http://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3; Parker University Texas State Board Approvals, available at http://ce.parker.edu/state- board-approvals/texas/.
Footnotes 38-39. Parker University Continuing Education, Acupuncture Program— Basic, available at http://ce.parker.edu/programs/acupuncture-program-basic/. Footnote 46. National Institute of Health’s National Center for Complementary and Integrative Health, Acupuncture: What You Need to Know, available at https://nccih.nih.gov/health/acupuncture/ introduction#hed4.
Texas Rule of Appellate Procedure 34.1 states the following: “The appellate
record consists of the clerk’s record and, if necessary to the appeal, the reporter’s
record.” The documents listed above do not appear in, nor are they referenced in
any pleading that is a part of the clerk’s record. When these documents are
referenced in Appellant’s Brief, the documents do not contain a reference to the
Clerk’s Record. Tex. R. App. P. 38.1(g). This Court may only review the record as
filed and may not consider documents neither in the record nor considered by the
trial court. Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex. App.—
Dallas 2005, pet. denied). Appellant is attempting to retry this case before this Court,
but, if such matters were of importance, they should have been presented to the
district court. Accordingly, this Motion to Strike should be granted and the Court
should not review the above documents cited by Appellant or the arguments
supported by these documents.
3 APPELLEES’ BRIEF
STATEMENT OF THE CASE
This case is a challenge to two administrative rules of the Texas Board of
Chiropractic Examiners under Texas Government Code § 2001.038. The challenged
rules include 22 Texas Administrative Code § 78.13(a)(4), 22 Tex. Admin. Code
§ 78.13(b)(2), and (e)(2)(C), and 22 Tex. Admin. Code § 78.13.1 These rules define
“incision” (§ 78.13(a)(4)), state when needles may be used in the practice of
chiropractic (§ 78.13(b)(2)), state that licensees of the Board may use acupuncture
and reflex techniques (§ 78.13(e)(2)(C)), and define the terms of use of acupuncture
and requirements for licensees to include acupuncture in their practice (§ 78.14). In
addition, Appellant TAAOM seeks a declaration, under the Uniform Declaratory
Judgments Act, that, if the amendment to Texas Occupations Code § 205.001(2)
adding “nonsurgical, nonincisive” authorizes chiropractors to practice acupuncture
without a license from the Board of Acupuncture Examiners, it is unconstitutional
because it is a preference to one school of medicine over another in a manner
prohibited by Texas Constitution Art. XVI, § 31, or, in the alternative, that Senate
Bill 361 violated the one-subject rule contained in Texas Constitution Art. III, § 35.
The Board countered that the rules were a valid exercise of its authority, S.B. 361
1 Since this case was heard at the trial court, the Board has completed a nonsubstantive recodification of its rules. These rules were previously numbered 22 Tex. Admin. Code § 75.17, relating to Scope of Practice, and § 75.21, relating to Acupuncture. This Brief will use the current numbers of the rules. 4 did not violate the Texas Constitution, and that TAAOM’s claims are barred by the
statute of limitations or laches. The parties filed cross-motions for summary
judgment, and the trial court granted the Board’s motion and denied TAAOM’s
motion. TAAOM now appeals from that judgment issued by the trial court.
ISSUES PRESENTED
ISSUE 1: The Texas Legislature intended to and did effectively create an exception
in the Acupuncture Act that allowed the Board to promulgate valid rules allowing
qualified, licensed chiropractors to practice acupuncture.
ISSUE 2: The statute authorizing the Board to adopt rules allowing qualified,
licensed chiropractors to practice acupuncture does not violate the Texas
Constitution, and the bill enacting the statute did not violate the Texas Constitution.
ISSUE 3: With respect to Appellant TAAOM, these claims are barred by the statute
of limitations, or, as an alternative means to validate the judgment, laches.
STATEMENT OF FACTS
The practice of acupuncture involves methods of diagnosing and treating a
patient by, among other things, short needle insertion for the purpose of obtaining a
biopositive reflex response by nerve stimulation, i.e., placing short, thin needles into
defined points on the human body for the relief of pain. 22 Tex. Admin. Code
§ 78.14(a). Chiropractors in Texas engaged in the practice of acupuncture after the
practice became widely known in the United States in the time following President
5 Nixon’s visit to China in 1972.2 After considering whether the practice was within
the scope of chiropractic practice, the Board outlawed the practice of acupuncture
by chiropractors in the Board’s rules in 1973.3 The Board acted to stop a licensee
from advertising or performing acupuncture in 1974.4
The Texas State Board of Medical Examiners considered acupuncture to be
the practice of medicine and sought to require that only a licensed physician be
allowed to practice acupuncture. See Thompson v. Tex. State Bd. of Med. Exam’rs,
570 S.W.2d 123 (Tex. Civ. App.—Tyler 1978, writ ref’d n.r.e.). The Board of
Medical Examiners’ attempts to limit the practice of acupuncture were curtailed
somewhat by the issuance of Attorney General’s Opinion No. JM-125 (1984), in
which General Maddox opined that four sections of rules limiting the practice of
acupuncture were unconstitutional.5 The State of Texas recognized and initiated
regulation of acupuncture with the creation of the Texas State Board of Acupuncture
Examiners (“TSBAE”) in 1993.6
After the Legislature adopted the Administrative Procedure Act in 1975,
Board Rule 10 was codified as 22 Tex. Admin. Code § 75.1. The rule prohibited the
2 Board Minutes, Meeting of September 23, 1972, CR at 528-31. 3 Board Minutes, Meeting of January 17-20, 1973, CR at 602-16. 4 Board Minutes, Meeting of July 17-20, 1974, CR at 608-13. 5 CR at 615-18. 6 Act of May 31, 1993, 73d Leg., R.S., ch. 862, §§ 6.01-.14, § 37, 1993 Tex. Gen. Laws 3400, repealed by Act of May 13, 1999, 76th Leg., R.S., ch. 388, § 6(a), 1999 Tex. Gen. Laws 1431, 2439-40. 6 practice of acupuncture by chiropractors and later became 22 Tex. Admin. Code
§ 75.1(7). On June 9, 1988, the Board voted to repeal this part of the rule and the
next part prohibiting the use of needles by chiropractors.7 Neither the Board minutes
nor the preamble to the rule action explain the reason for the change.
Seven years later, the Executive Director of the TSBAE, Dr. Bruce A. Levy,
requested an Attorney General’s Opinion on the matter in a letter dated September
15, 1995.8 That request resulted in Attorney General’s Opinion No. DM-415, in
which the Attorney General opined that acupuncture was not within the legal scope
of practice of chiropractic.9 Following the issuance of that Attorney General’s
Opinion, the Board did not take action to amend its rules regarding acupuncture.
Rather, it appears that the members of the Board, along with the Texas Chiropractic
Association, worked with the Legislature to change the law to allow chiropractors
to practice acupuncture.10
In the 1997 regular legislative session, the Legislature took action to reverse
the effect of Opinion DM-415.11 At that time, the TSBAE was undergoing Sunset
review. Certain members of the Legislature sought to allow chiropractors to
continue to practice acupuncture. The vehicle for their actions was Senate Bill 361,
7 13 Tex. Reg. 4972 (1988); Board Minutes, Meeting of June 9, 1988. CR at 620-29. 8 See RQ-853. CR at 631-32. 9 Tex. Att’y Gen. Op. No. DM-415 (1996). CR at 634-40. 10 See Board Minutes, Meetings July 11, 1997 and September 11, 1997. CR at 642-68. 11 Tex. S.B. 361, 75th Leg., R.S. (1997). CR at 536. 7 the bill that was to continue the TSBAE in existence. On April 24, 1997, the bill
came before the Senate on second reading. Senator Madla, the bill’s sponsor, offered
three amendments to the bill.12 The first amendment inserted the words
“nonsurgical, nonincisive” into the definition of acupuncture in the Acupuncture
Act. Id. This amendment was adopted by the Senate.13 The inclusion of this
language in the Acupuncture Act is the primary issue in this lawsuit. The other two
amendments, also adopted, are not at issue in this lawsuit. Id. The bill was then
passed by the Senate and sent to the House.14
After being received in the House of Representatives, S.B. 361 was the subject
of a bill analysis issued by the House Research Organization on May 19, 1997. The
bill analysis included a specific discussion of the impact on the practice of
chiropractic: “The bill would also change the definition of ‘incisive or surgical
procedure’ in the law governing chiropractors to include acupuncture.”15 The bill
was heard in the House Committee on Public Health on May 8, 1997. At that
hearing, the House Sponsor, Representative Patricia Gray, spoke specifically to the
purpose of the bill. A certified transcription of her testimony is included in the
record. CR at 476-505. She specifically states that the purpose of the amendments
12 See S.J. of Tex., 75th Leg., R.S. 1325 (1997), CR at 455-57. 13 The Senate Committee Report reflects that these same amendments were also added in the Senate Health and Human Services Committee when this bill was heard. Tex. S. Comm. on Health & Human Svcs., Comm. Rpt., S.B. 361, 75th Leg., R.S. (April 11, 1997). CR at 459-62. 14 See Actions, Tex. Leg. Online, S.B. 361, 75th Leg., R.S. CR at 465-66. 15 H. Res. Org., Bill Analysis, S.B. 361, 75th R.S., May 19, 1997 at 4. CR at 468-74. 8 to the bill was to allow chiropractors to practice acupuncture. She specifically
mentions Opinion No. DM-415, by effect though not by number, as a cause for the
legislation.16 She also states,
However, there are . . . there was a provision added in the Senate version which authorized chiropractors to engage in the practice of acupuncture. In the [unintelligible]… we have some committee amendments that we have been working on that we think will clarify that language and put that perhaps in a better place in the code.17
The bill analysis for the House Committee Report also provides an
explanation of the amendments added in the committee.18 The first committee
amendment deleted the addition of “nonsurgical, nonincisive” from the definition of
acupuncture. The bill analysis states that the purpose of this change: “was to allow
chiropractors to practice acupuncture; however, this authority has been set forth in
committee amendments 3 and 4.”19 Committee amendments 3 and 4 would have
amended the Chiropractic Act, then Article 4512b, Vernon’s Annotated Texas
Statutes, to allow chiropractors to practice acupuncture.20 Because these
amendments attempted to amend the Chiropractic Act rather than the Acupuncture
Act, when they were offered on the floor of the House, they were subject to points
16 Id. at 4. CR at 479. 17 Id. at 2. CR at 477. 18 Tex. H. Comm. on Public Health, Comm. Rpt., S.B. 361, 75th Leg., R.S., May 8, 1997. CR at 507-12. 19 Id. CR at 512. 20 Id., CR at 512; Act of April 21, 1949, 51st Leg., R.S., ch. 94, 1949 Tex. Gen. Laws 160, repealed by Act of May 13, 1999, 76th Leg., R.S., ch. 388, § 6(a), 1999 Tex. Gen. Laws 1431. 9 of order as not germane to the original bill.21 The points of order were sustained and
the amendments were not added to the bill.22 This left the House version of the bill
without any amendment to the language concerning the definition of acupuncture.
The Senate bill had passed with the addition of “nonsurgical, nonincisive” to the
definition of acupuncture. When the House version, without language concerning
the definition of acupuncture, was presented to the Senate, the Senate voted not to
concur and requested a conference committee.23 The House agreed to a conference
committee and appointed conferees on May 21, 1997.24 The conference committee
restored the addition of “nonsurgical, nonincisive” to the definition of acupuncture
and the agreed version was adopted in each house shortly thereafter.25 This version
was signed by the Governor and then became the law at issue here, with the addition
of “nonsurgical, nonincisive” to the definition of acupuncture.26
Based on the change to the definition of acupuncture in the Acupuncture Act,
a new request was made to the Attorney General for an opinion on whether it was
21 The Rules of the House of Representatives required that committee amendments to a bill be offered again when the bill is considered on the floor, unless the amendments are consolidated into a committee substitute. Rules of the Texas House, 75th Session, 1997, Rule 11, §7(3)(B). 22 H. J. of Tex., 75th Leg., R.S. 2743-44 (1997). CR at 514-16. 23 S.J. of Tex., 75th Leg., R.S. 2321-22 (1997). CR at 518-20. 24 H.J. of Tex., 75th Leg., R.S. 2982 (1997). CR at 522-23. 25 S.J. of Tex., 75th Leg., R.S. 3173 (1997). CR at 525; H.J. of Tex., 75th Leg., R.S. 4024 (1997). CR at 533. 26 Act of May 28, 1997, 75th Leg., R.S., ch. 1170, 1997 Tex. Gen. Laws 4418, repealed by Act of May 13, 1999, 76th Leg., R.S., ch. 388, 1999 Tex. Gen. Laws 1431. CR at 536-54. 10 legal for Texas chiropractors to practice acupuncture.27 This request led to the
issuance of Opinion No. DM-471.28 In this opinion, the Attorney General concluded
that the Legislature had intended to change, and had in fact, changed the law to allow
chiropractors to practice acupuncture in Texas. Id. The opinion concluded that the
Acupuncture Act and the Chiropractic Act could be read in pari materia, and that
the amendment to the definition in the Acupuncture Act effectively applied to the
Chiropractic Act, both statutes regulating a health care profession. Id. The opinion
also concluded that the legislative history of the bill supported the idea that the intent
of the amendment was to ensure that chiropractors could legally practice
acupuncture. Id. The opinion specifically relied on the testimony of Representative
Gray. For the subsequent seventeen years, the Board has taken the position of that
chiropractors may legally practice acupuncture.
The Board was subject to Sunset review during the 2005 legislative session,
and one of the foci of that review was the Board’s determination of scope of practice
issues.29 As noted in the Sunset Report, this review was built upon nearly a decade
of discussion that had included several Attorney General Opinions. Id. Much of the
discussion centered on the language of the Chiropractic Act, as it then read,
27 See RQ 988, Letter from Bruce A. Levy, M.D., J.D., to Dan Morales, August 18, 1997. CR at 556-66. 28 Tex. Att’y Gen. Op. No. DM-471 (1998). CR at 568-70. 29 SUNSET STAFF REPORT, TEXAS BOARD OF CHIROPRACTIC EXAMINERS, (Feb. 2004) (“Sunset Report”) (excerpts). CR at 572-81. 11 particularly concerning its prohibition against incisive or surgical procedures. 30 As
a result of the Sunset review, the Legislature amended the Chiropractic Act and made
several changes regarding scope of practice, including adding a new definition for
“surgical procedure” (codified at Tex. Occ. Code § 201.002(a)(4)) and mandating
that the Board adopt rules clarifying activities within the scope of practice through
an inclusive rulemaking process (codified at § 201.1525 and § 201.1526).31 After
nearly a year of rulemaking, the Board adopted its scope of practice rule, 22 Tex.
Admin. Code § 75.17, in 2006.32 That rule included some of the provisions
challenged in this lawsuit. The other rule challenged in this lawsuit, the one
specifically dealing with the scope of chiropractic practice in acupuncture, 22 Tex.
Admin. Code § 75.21, was adopted effective July 2, 2009.33
SUMMARY OF THE ARGUMENT
Following the issuance of an Attorney General opinion that chiropractors
were not authorized to practice acupuncture without having been licensed by the
Board of Acupuncture Examiners, the Texas Legislature amended the definition of
“acupuncture” to state that the insertion of needles for acupuncture was a
“nonincisive, nonsurgical” procedure. Based on that amendment, the Attorney
General reconsidered the issue and opined that the amendment had effectively
30 See, e.g., Tex. Att’y Gen. Op. DM-472 (1998) at 2. CR at 584. 31 Act of May 27, 2005, 79th Leg., R.S., ch. 1020; 2005 Tex. Gen. Laws 3464. 32 31 Tex. Reg. 4613 (June 2, 2006). CR at 444. 33 34 Tex. Reg. 4333 (2009). CR at 453. 12 changed the law to allow chiropractors to practice acupuncture. The plain meaning
of the amendment supports the creation of an exemption for chiropractors from
licensure by the Acupuncture Board. The intent of the legislature may be determined
from the words of the statute.
Even if the statute is considered ambiguous, extraneous means of interpreting
the law support the Board’s rules allowing chiropractors to practice acupuncture.
The legislative history consistently evidences that the Legislature sought to create
an exception in the Acupuncture Act for chiropractors. The amendment should be
read in pari materia with the definitions of the scope of practice in the Chiropractic
Act, and a consistent interpretation is that acupuncture is not a practice forbidden to
chiropractors.
Senate Bill 361 did not violate the Texas Constitution. Chiropractic is not a
school of medicine, so allowing chiropractors to practice acupuncture is not a
preference in violation of Article XVI, § 31. Neither did the bill violate the single
subject rule in Article XVI, § 35. The creation of an exemption from the
Acupuncture Act is consistent with the general subject of the bill, which was the
sunset legislation for the Acupuncture Board.
13 ARGUMENT AND AUTHORITIES
The trial court granted the Board’s summary judgment motion and denied
TAAOM’s. When both parties move for summary judgment on the same issues and
the trial court grants one motion and denies the other, this Court must consider the
summary-judgment evidence presented by both sides, determine all questions
presented, and if the trial court erred, render the judgment it should have rendered.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). This Court
reviews the trial court’s judgment de novo. Id. This Appellees’ Brief will address
all of TAAOM’s arguments for reversal as well as the grounds on which the
judgment in favor of the Board should be affirmed.
This case is not about the behavior of the Board in previous debates and
lawsuits concerning the proper scope of practice of chiropractic. It is not about the
relative qualifications of licensed chiropractors versus licensed acupuncturists to
perform acupuncture. These issues are a smokescreen intended to prejudice the
Court and infer that the Board and the chiropractic profession are out of control and
are a danger to the public health. Even if there were some evidence to support these
issues, which the Board denies, these issues are not before the Court in this appeal.
Prior battles over the scope of chiropractic practice have been fought and won or lost
on their own merits. The relative safety and efficacy of the practice of acupuncture
14 by the two professions would present fact issues to the Court, which were neither
pled nor tried in the court below. This case is about statutory construction.
I. The Board of Chiropractic Examiners Has Statutory Authority Necessary to Adopt Its Rules Allowing Chiropractors to Practice Acupuncture.
The crux of this case is an amendment to the Acupuncture Act that added the
words “nonincisive, nonsurgical” to the definition of acupuncture.34 Following that
amendment, the definition of acupuncture read, and currently reads, as follows:
(2) "Acupuncture" means: (A) the nonsurgical, nonincisive insertion of an acupuncture needle and the application of moxibustion to specific areas of the human body as a primary mode of therapy to treat and mitigate a human condition, including evaluation and assessment of the condition; and (B) the administration of thermal or electrical treatments or the recommendation of dietary guidelines, energy flow exercise, or dietary or herbal supplements in conjunction with the treatment described by Paragraph (A).
Tex. Occ. Code § 205.001(2) (emphasis added).
It is the position of the Board that this amendment to the law was intended to
and was effective to create an exemption for chiropractors practicing within their
scope of practice from the requirement to be separately licensed as an acupuncturist.
Accordingly, this case begins and ends with statutory construction. Based on that
interpretation of the law, the Board adopted its rules concerning acupuncture that are
challenged in this case.
34 See S. B. 361, 75th Leg., R.S., May 8, 1997. CR at 536. 15 An ancient maxim of statutory construction is that “the legislature cannot do
indirectly, that which it has no power to do directly.” Cockrum v. State, 24 Tex. 394,
397 (1859). The instant case presents the opposite of that proposition: what the
Legislature has the power to do directly, it may also do indirectly. The fact that the
Legislature chose to place an exception to the Acupuncture Act in that Act makes it
no less valid than if it were placed in the Chiropractic Act.
A. The Unambiguous Language of the Acupuncture Act Creates an Exemption for Chiropractors.
The language of Senate Bill 361 supports the Board’s rules without resort to
extrinsic construction aids. TAAOM contends that nothing in the Acupuncture Act,
Texas Occupations Code ch. 205, can be read to modify the Chiropractic Act, Texas
Occupations Code ch. 201, to allow chiropractors to practice acupuncture. Such a
reading is erroneous because it ignores the actual wording of the law and would
thwart the intent of the Legislature as evidenced by those words.
In construing a statute, the objective “is to determine and give effect to the
Legislature’s intent,” looking “first to the plain and common meaning of the statute’s
words.” Continental Cas. Ins. Co. v. Functional Restoration Assoc., 19 S.W.3d 393,
398 (Tex. 2000). Even when giving effect to the plain meaning of the words of the
statute, there are certain rules which courts must observe. First, this Court must
consider the entire statute and construe each provision in the context of the statute
as a whole. Id. A court should not “judge the wisdom of the policy choices of the 16 Legislature, or . . . impose a different policy of [its] own choosing.” Edgewood Ind.
Sch. Dist. v. Meno, 917 S.W.2d 717, 726 (Tex. 1995). And of particular significance
to this case, a court should not construe a statute in a way “that renders any part of
the statute meaningless or superfluous.” Columbia Med. Ctr. of Las Colinas, Inc. v.
Hogue, 271 S.W.3d 238, 256 (Tex. 2008) (citing City of Marshall v. City of
Uncertain, 206 S.W.3d 97, 105 (Tex. 2006)).
Similarly, the Code Construction Act provides canons of construction for
determining the plain language of a statute before resort to extrinsic means of
interpretation. That act provides as follows:
Sec. 311.011. COMMON AND TECHNICAL USAGE OF WORDS. (a) Words and phrases shall be read in context and construed according to the rules of grammar and common usage. (b) Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.
Sec. 311.021. INTENTION IN ENACTMENT OF STATUTES. In enacting a statute, it is presumed that: (1) compliance with the constitutions of this state and the United States is intended; (2) the entire statute is intended to be effective; (3) a just and reasonable result is intended; (4) a result feasible of execution is intended; and (5) public interest is favored over any private interest.
Tex. Gov’t Code § 311.011; § 311.021.
17 The literal meaning of Occupations Code § 205.001(2) following the amendment
contained in S.B. 361 is that the insertion of an acupuncture needle into the skin of
a patient is not a surgical or incisive procedure. There is no reasonable argument to
the contrary. The statute does not qualify this or limit it to some insertions of
acupuncture needles, or some parts of the human body, or only when performed by
a licensed acupuncturist. Thus, the question presented to the Court is how this
definition should be applied to health care professions other than licensed
acupuncturists. This definition describes the very nature of the practice of
acupuncture and the definition is properly applied to all health care professionals.
As previously mentioned, one of the canons of construction of literal meaning
of words of a statute is that a court must not render any part of a statute meaningless
or superfluous. Columbia Med. Ctr., 271 S.W.3d at 256; Tex. Gov’t Code
§ 311.021(2). A principal reason that TAAOM’s argument fails is that it offers no
meaning for the addition of “nonsurgical, nonincisive” to the definition of
acupuncture other than the one advanced by the Board. Its argument renders the
provision meaningless and superfluous.
A valid function of the Acupuncture Act is to define who is exempt from its
application as well as who is subject to it. Both chiropractic and acupuncture are
within the practice of medicine, as evidenced by their respective limitations that
show intent not to allow the professions to engage in the unauthorized practice of
18 medicine. Tex. Occ. Code §§ 151.052(3); Tex. Occ. Code § 205.003(b)(2). Thus,
each profession is limited to its individual scope of practice. This does not mean
that there may be no overlap in the respective practices. By declaring in the
definition of acupuncture that it is a “nonsurgical, nonincisive” procedure, the
Legislature has clarified the exemption of other health care professions to ensure that
chiropractors are exempt from the Acupuncture Act. Tex. Occ. Code
§ 205.001(2)(A).
The Occupations Code contains a comprehensive plan of regulation of health
care professions in Texas. Title 3 of the Code is entitled “Health Professions.”
Subtitle A of that title includes general provisions related to all health care
professions. Subtitle B covers physicians. Subtitle C includes chapters providing
regulations for chiropractors, podiatrists, midwives, physician assistants,
acupuncturists, and surgical assistants. Tex. Gov’t Code § 201.001, et seq. Thus,
there is significant overlap in the Occupations Code and commonality in regulation
of the many healthcare professions. These laws are best construed as a whole rather
than as unique, unrelated parts.
The Medical Practice Act includes exemptions from its application for various
other healthcare professions. Tex. Occ. Code § 151.052. The Acupuncture Act
exempts from its application other licensed health care professionals practicing
within the scope of their licenses:
19 Sec. 205.003. Exemption; Limitation. (a) This chapter does not apply to a health care professional licensed under another statute of this state and acting within the scope of the license.
Tex. Occ. Code § 205.003(a).
TAAOM contends that the two statutes regulating acupuncture and
chiropractic should be considered separately rather than construed together in
harmony. TAAOM Brief at 34. When two statutes address the same subject matter,
the proper approach is to construe the statutes consistently and in harmony, giving
effect to all parts of the statutes. Tex. Gov’t Code § 311.026(a); La Sara Grain Co.
v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex. 1984). Only when the
conflict is irreconcilable should one statute prevail over the other. Tex. Gov’t Code
§ 311.026(b); TracFone Wireless, Inc. v. Comm’n on State Emergency Commc’ns,
397 S.W.3d 173, 181 (Tex. 2013). By defining acupuncture as a “nonincisive,
nonsurgical” procedure, the Legislature has related the exemption for other health
care professions directly to the practice of chiropractic. Chiropractors are exempt
from the Acupuncture Act so long as they are practicing within their scope of
practice.
TAAOM emphasizes that chiropractors must “engage strictly in the practice
of chiropractic” to be exempt from the Medical Practice Act’s prohibition on the
unlicensed practice of medicine. TAAOM Brief at 6 [emphasis in original]; Tex.
Occ. Code § 151.052(a)(3). Yet this same admonition applies to dentists,
20 optometrists, nurses, podiatrists, and psychologists. Tex. Occ. Code § 151.052.
There is nothing in the statute that limits chiropractors more than any other health
care profession from encroaching on the unlimited scope of practice of medical
doctors. All practitioners other than physicians must stay strictly within their
respective scopes of practice.
B. If the Law Is Ambiguous, Other Canons of Legislative Construction Support the Board’s Rules.
Alternatively, if the Court determines that the amendment to the Acupuncture
Act contained in S.B. 361 is ambiguous, the use of extrinsic aids to construction to
determine legislative intent also supports the conclusion that the Board’s rules are
valid. There is a significant argument for the proposition that the law is not clear on
its face, and it begins with determination of the presence of ambiguity.
1. The Meaning of “Incisive” Is Ambiguous.
TAAOM relies on the language of Texas Occupations Code § 201.002(a)(3)
to limit the definition of “incisive.” That statute provides as follows:
(3) "Incisive or surgical procedure" includes making an incision into any tissue, cavity, or organ by any person or implement. The term does not include the use of a needle for the purpose of drawing blood for diagnostic testing.
The Occupations Code further defines surgical procedure as “a procedure
described in the surgery section of the common procedure coding system as adopted
by the Centers for Medicare and Medicaid Services of the United States Department
21 of Health and Human Services.” Tex. Occ. Code § 201.002(a)(4). The statute,
however, does not further define incisive procedure. According to TAAOM’s
interpretation, incisive procedure should be defined to include every invasive
procedure except the use of needles to draw blood. TAAOM Brief at 20. Yet, the
mere exclusion of the use of needles for drawing blood does not define the meaning
of the words “incisive” or “incision” in the law. As TAAOM notes, “The legislature
is presumed to choose its words carefully and include or exclude particular words
purposefully. Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d
628, 635 (Tex. 2010).” TAAOM MSJ at 17, CR at 82. In this case, the use of the
word incisive was carefully chosen because it is not as restrictive as “invasive.”35
Representative Uher explained that the example of use of needles to draw blood was
intended to be illustrative and not limiting.36 While not conclusive of legislative
intent, the letter at least raises a question concerning the difference in the two terms.
The point here is not that the definition of “incisive or surgical procedure” in
Texas Occupations Code § 201.002(a)(3), construed by itself, is so ambiguous that
the Board could interpret it as including acupuncture. The Board agrees that the
term as it was construed in Opinion No. DM-415 prohibited chiropractors from
practicing acupuncture. Rather, the question is whether, with the amendment of the
35 See Letter from D.R. “Tom” Uher to Dan Morales, February 3, 1997, CR at 591. 36 Id., but cf. Tex. Att’y Gen. Op. No. DM-472 (1998) (discussing the legislative history of the choice of “incisive” over “invasive”). 22 definition of acupuncture as not being a surgical or incisive procedure, an exception
has been created by action and intent of the Legislature that will allow chiropractors
to perform acupuncture. The answer is clearly “yes.”
Justice Pemberton’s discussion of the meaning of “incisive” illustrates the
ambiguity associated with this term. Tex. Bd. of Chiropractic Exam’rs v. Tex. Med.
Ass’n, 375 S.W.3d 464, 480-81 (Tex. App.—Austin 2012, pet. denied). He contrasts
the ordinary meaning of the term, which would include piercing, with the technical
meaning, which would include cutting but not piercing. Id. He concludes that the
Board’s rule, section 75.17(b)(3) (now § 78.13(a)(4) and challenged by TAAOM),
used the technical definition of “incisive.” Id. The acupuncture rule was not
challenged in the former case, but nevertheless, the court was faced with application
of the statute to determine whether needle EMG was a prohibited incisive procedure.
The court considered the evidence presented in that case distinguishing the type of
needles used in needle EMG with the much smaller needles used in acupuncture. Id.
at 479. Ultimately, the court concluded that the definition of “incisive” was not
broad enough to include the type of needles used in needle EMG, but left for another
day the consideration of whether the use of an acupuncture needle was an incisive
procedure. Id. That day is here.
The difference between this case and Texas Board of Chiropractic Examiners
is that, in this case, the Legislature has provided us with a definition. Justice
23 Pemberton acknowledges in dicta that the Legislature’s view is that acupuncture is
not an incisive procedure:
Further, while the question of whether acupuncture is within the chiropractic scope of practice is not before us, nor does the summary- judgment evidence address whether or not acupuncture needles have a beveled edge, this distinction between beveled, “cutting” needles and other kinds that do not “cut” would perhaps explain how, in the Legislature's view, acupuncture needles would be capable of being inserted into the body in a “nonincisive” and “nonsurgical” manner.
Id. at 481. When the Legislature has provided a definition of a word in a statute, the
courts are bound to use that definition. City of Waco v. Kelly, 309 S.W.3d 536, 542
(Tex. 2010).
Accordingly, this Court should apply that definition and determine that the
intent of this amendment to the Acupuncture Act was intended to and effectively
created an exemption from the Acupuncture Act for chiropractors.
2. The Legislative History Supports the Board’s Rules.
The legislative history of S.B. 361 demonstrates an intent to allow
chiropractors to practice acupuncture. Whether or not the statutes at issue here are
ambiguous, it is proper for the Court to consider legislative history to discover intent.
Tex. Gov’t Code § 311.023(3); Rogers v. Tex. Bd. of Architectural Exam’rs, 390
S.W.3d 377 (Tex. App.—Austin 2011, no pet.). After concluding that the statutes at
issue were not ambiguous, the Rogers court further notes, “Although we look
principally to statutory text, the origins of that text are illuminating in this case.” Id.
24 at 385. Accordingly, it is not improper for the Court to consider the legislative
history of the law at issue here, particularly when it is so clearly compelling of a
single result: chiropractors may practice acupuncture. The legislative history of S.B.
361 is thoroughly discussed in the Board’s Statement of Facts. It is not necessary to
repeat all of these elements here, but a brief summary is appropriate.
Representative Gray, the House sponsor of the bill, stated the purpose of the
bill was to authorize chiropractors to practice acupuncture, specifically reversing the
effect of Opinion No. 415. Both the House Research Organization’s bill analysis
and the House Committee on Public Health’s committee report state that the effect
of the amendment was to authorize chiropractors to practice acupuncture. On the
House floor, when Rep. Gray attempted to substitute an amendment that would have
amended the Chiropractic Act to accomplish the same purpose, those amendments
were stricken on points of order. When the bill returned to the Senate with no
language addressing the practice of acupuncture by chiropractors, Senator Madla,
the bill’s author, convinced the Senate not to concur, to send the bill to a conference
committee, and ultimately to restore the amendment to the definition of acupuncture.
TAAOM argues that the Legislature had opportunities to amend the
Chiropractic Act to include the practice of acupuncture, yet did not. TAAOM Brief
at 38. First, since the Board had already adopted rules to allow chiropractors to
practice acupuncture, such statutory changes appeared unnecessary at the time.
25 Further, inaction on the part of the Legislature, in failing to adopt legislation, is not
controlling evidence of legislative intent. Tex. Emp’t Comm’n v. Holberg, 440
S.W.2d 38, 42 (Tex. 1969).
3. The Acupuncture Act and the Chiropractic Act Are In Pari Materia.
TAAOM’s contention that no reference to the Acupuncture Act is to be
allowed in construing the Chiropractic Act is erroneous. Because they relate to the
same subject, the two should be read in pari materia. Statutes are in pari materia
when they share a common purpose or object. DLB Architects, P.C. v. Weaver, 305
S.W.3d 407, 410 (Tex. App.—Dallas 2010, pet. denied). Similarity of purpose or
object is the most important factor in determining whether two statutes are in pari
materia, i.e., whether they are “closely enough related to justify interpreting one in
light of the other.” Burke v. State, 28 S.W.3d 545, 547 (Tex. Crim. App.
2000)(citations omitted). To determine whether two statutes share a common
purpose, courts consider whether the two statutes were clearly written to achieve the
same objective. In re J.M.R., 149 S.W.3d 289, 292 (Tex. App.—Austin 2004, no
pet.). “The adventitious occurrence of like or similar phrases, or even of similar
subject matter, in laws enacted for wholly different ends will not justify applying the
doctrine.” Id. When two statutes are in pari materia, courts should attempt to
harmonize them to give effect to both. DLB Architects, P.C. v. Weaver, 305 S.W.3d
407, 410 (Tex. App.—Dallas 2010, pet. denied).
26 In this case, the question is whether the definition of “acupuncture” in sec.
205.001 as amended by S.B. 361 should be read together with the definition of
“incisive or surgical procedure” in sec. 201.002(a)(3). The purpose of amending sec.
205.001 was to define the scope of practice of chiropractic. The legislative history
best demonstrates this purpose. See Par. B. 2, above. By defining acupuncture not
to be an incisive or surgical procedure, the Legislature brought that procedure into
the scope of practice of chiropractic. Further, the two statutes may be reconciled to
give effect to both. The definition of incision is a technical definition, not a common
meaning. Tex. Bd. of Chiropractic Exam’rs, 375 S.W.3d at 480-81. The definition
includes cutting, but not necessarily piercing the skin. Id. The amendment removes
acupuncture from the definition rather than changing the definition.
In Texas Association of Psychological Associates v. Texas State Board of
Examiners of Psychologists, this Court considered the impact of a separate statute
dealing with the same subject on the licensing statute for psychologists. Texas
Association of Psychological Associates v. Texas State Board of Examiners of
Psychologists 439 S.W.3d 597 (Tex. App.—Austin 2014, no pet.). The Texas State
Board of Examiners of Psychologists (TSBEP) passed a rule requiring that licensees
with a master’s degree, a “psychological associate,” must practice under the
supervision of a licensed psychologist, a person required to have a doctorate degree.
Id. at 600. The Psychologists’ Licensing Act had at one time contained specific
27 language regarding the supervision of psychological associates. Id. at 601.
Following repeal of this language, the organization of psychological associates sued
to have the rule requiring supervision invalidated. Id. at 602. The court considered
the history of the act, but also considered another, seemingly unrelated statute on the
same subject in upholding the validity of the TSBEP rule. The Texas Insurance
Code contains a definition that defines “psychological associate” as an “individual
licensed as a psychological associate by the [Board] who practices solely under the
supervision of a licensed psychologist.” Id. at 606; Tex. Ins. Code § 1451.001(18).
The court opined that this law was persuasive and referenced Texas Government
Code § 311.023, thus considering this provision in pari materia with the
Psychologists Licensing Act.37
In light of the admonition that “like or similar phrases” may not be enough to
justify the application of the doctrine, it is necessary to go beyond the mere similarity
of the “nonincisive, nonsurgical” language. In re J.M.R., 149 S.W.3d at 292. Here,
the sole purpose of this amendment to the Acupuncture Act was to exempt
chiropractors from that Act. In doing this, the Legislature chose one of two methods
available to it. It could have amended the Chiropractic Act to exempt chiropractors
37 See Tex. Gov't Code § 311.023 (in construing statute, court may consider laws on same or similar subjects); Acker v. Tex. Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990) (statute presumed to have been enacted by Legislature with complete knowledge of the existing law and with reference to it).
28 from the Acupuncture Act, or it could amend the Acupuncture Act to exclude
chiropractors from the application of that Act. It chose to do the latter. The method
it chose may have been circuitous, but nonetheless, it was effective. The only way
this Court can make the amendment meaningful and effective is to construe the two
provisions in pari materia and uphold the validity of the Board rules.
TAAOM’s assertion that the addition of “nonsurgical, nonincisive” to the
Acupuncture Act, language found only in that act and the Chiropractic Act, was not
intended to relate to the practice of chiropractic is simply not credible. This
amendment to the definition of acupuncture was intended to relate to the
Chiropractic Act and in fact does.
4. Remedial Statutes Should Be Interpreted Broadly.
From the legislative history of this act, it is clear that it was intended to reverse
an opinion of the Attorney General. Such a legislative act is considered to be a
remedial act. “If a statute is curative or remedial in its nature the rule is generally
applied that it be given the most comprehensive and liberal construction possible.”
Burch v. City of San Antonio, 518 S.W.2d 540, 544 (Tex. 1975), citing City of Mason
v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273 (1951). Thus, the role of
this Court must be to give effect to the intent of the Legislature. TAAOM’s
interpretation would thwart the intent of the Legislature and give no effect to the
statute. A liberal construction would uphold the validity of the Board’s rules.
29 5. The Board’s Interpretation Is Entitled to Serious Consideration.
Another factor to be considered in this case is the Board’s interpretation of the
law. Tex. Gov’t Code § 311.023(5); Dodd v. Meno, 870 S.W.2d 4, 7 (Tex. 1994).
While TAAOM complains that the Board’s interpretation is entitled to no weight in
interpreting the Acupuncture Act, the Board’s rules are based on more than the two
words in that Act.
An alternative view of this issue does not require that Texas Occupations Code
§ 205.001(2)(A) be applicable to the Chiropractic Act at all. The term “nonincisive,
nonsurgical” is sufficiently ambiguous to be open to interpretation in the rules of the
Board. While the Chiropractic Act does define “incisive or surgical procedure,” that
did not end the discussion of the meaning of either phrase. Tex. Occ. Code §
201.002(a)(3). This is illustrated by Justice Pemberton’s discussion of the meaning
of the terms in the Texas Board of Chiropractic Examiners v. Texas Medical
Association case discussed above. Because of this ambiguity, it is within the
authority of the Board to interpret the statute in its rules. Where a statute is
ambiguous, courts may be required to defer to an administrative agency's
construction of its own statutory authority. Id., 375 S.W.3d at 474-75, citing
Railroad Comm’n v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d
619, 624–25 (Tex. 2011). Of course, the construction by the agency must be a
reasonable one. Id.
30 The Legislature’s conclusion that acupuncture is not an incisive or surgical
procedure provides not only statutory authority, but also a logical rationale for the
Board’s determination that the insertion of an acupuncture needle is not an incisive
procedure. If it is within the authority of the Legislature to determine that the
insertion of an acupuncture needle is not an incisive or surgical procedure in the
Acupuncture Act, through what logic would the Board be prohibited from making
exactly the same determination in its own rules?
6. The Legislature Is Charged with Knowledge of the Law.
Statutes are presumed to be enacted by the Legislature with full knowledge of
the existing law, including other statutes. McBride v. Clayton, 140 Tex. 71, 76, 166
S.W.2d 125, 128 (Tex. Comm’n App. 1942, op. adopted). The meaning and effect
of laws should be determined with reference to and in harmony with existing law.
Id. The Legislature is properly presumed to have acted with “complete knowledge
of the existing law and with reference to it.” Tex. Ass’n of Psychological Assoc., 439
S.W.3d at 606. If the Legislature is charged with knowledge of other law, it seems
unlikely that it would have chosen the exact language from the Chiropractic Act,
“incisive or surgical” procedures, to exclude from the definition of acupuncture
without knowledge of the source of the language. Tex. Occ. Code § 201.002(c)(1).
The correct interpretation is that the Legislature chose that language with the intent
to create an exemption for chiropractic from the Acupuncture Act.
31 C. The Attorney General’s Opinions Were Correct.
While opinions of the Attorney General are persuasive and not controlling
authority, it is instructive to examine the reasoning that led the Attorney General to
first conclude that chiropractors could not perform acupuncture in Opinion No. DM-
415 and then conclude that this procedure was allowed in Opinion No. DM-471. In
re Smith, 333 S.W.3d 582, 588 (Tex. 2011). In the former opinion, the Attorney
General defined the question before him as follows:
Central to our determination of whether the practice of acupuncture is “within the scope of” a chiropractic license, see V.T.C.S. art. 4495b, § 6.03(a), is a consideration of whether acupuncture is an “incisive or surgical procedure” for purposes of section 13a(b) of article V.T.C.S. art. 4512b. If acupuncture is an incisive or surgical procedure, article 4512b, section 13a(a)(1) excludes it from the practice of chiropractic, and a person who is licensed only as a chiropractor may not perform it.38
The opinion then considers the definitions of “incisive” and “surgical.” It
opines that, although common usage might not define acupuncture as an incisive or
surgical procedure, it was the intent of the Legislature to include acupuncture within
those definitions. Just as TAAOM argues, the opinion examines the exclusion of
the use of a needle for blood draws for diagnostic purposes from the definition of
incisive or surgical procedures. It notes that acupuncture was not excluded from that
definition. The opinion then concludes that since chiropractors were then allowed
38 Tex. Att’y Gen. Op. No. DM-415 (1996). CR at 634.
32 to practice only nonsurgical, nonincisive procedures, acupuncture was outside the
scope of practice of chiropractic.
Following the adoption of S.B. 361, another request for an opinion was filed
with the Attorney General, resulting in Opinion No. DM-471. In determining that
his previous opinion had been superseded by statute, the Attorney General found
two arguments compelling. First, he considered that the two statutes regulating
chiropractors and acupuncturists, respectively, were in pari materia because they
both regulated health care professions. This is consistent with the Board’s argument
herein. Second, the Attorney General relied on the legislative history of the
amendment to the Acupuncture Act. In particular, the opinion noted the testimony
of Representative Gray, the bills House sponsor, detailing the sole intent of the
amendment being to reverse the impact of Opinion No. 415, which she specifically
mentioned. As stated in the Opinion, the unmistakable intent of the Legislature was
to allow chiropractors to practice acupuncture without licensure by the Acupuncture
Board.
II. The Amendment to the Acupuncture Act Did Not Violate the Texas Constitution.
A. Senate Bill 361 Did Not Create a Preference for a School of Medicine in Violation of Article XVI, § 31 of the Texas Constitution.
TAAOM next complains that a statutory scheme that allows chiropractors to
practice acupuncture with fewer hours of training than licensed acupuncturists is an
33 improper preference to one school of medicine over others that is prohibited by
Texas Constitution Art. XVI, § 31. The provision in question provides as follows:
Sec. 31. The Legislature may pass laws prescribing the qualifications of practitioners of medicine in this State, and to punish persons for mal- practice, but no preference shall ever be given by law to any schools of medicine.
Tex. Const. Art. XVI, § 31. This claim fails because chiropractic has been held not
to be a school of medicine. Since it is not a school of medicine, neither the
Chiropractic Act nor the amendment that is the subject of this lawsuit create a
preference that is prohibited by this constitutional provision. Schlichting v. Tex. St.
Bd. of Med. Examiners, 158 Tex. 279, 289-90, 310 S.W.2d 557, 564 (1957).
This section of the Texas Constitution was a part of the 1876 Texas
Constitution and has not been amended since then.39 While still a valid part of the
Texas Constitution, Art. XVI, § 31 is, to some extent, a historical anomaly. When
the provision was added to the Constitution of 1876, medicine was a very different
field. The Legislature in 1901 passed a law creating separate boards for allopathic,
homeopathic, and eclectic schools of medicine.40 This law was upheld as not
violating Art. XVI, § 31. Stone v. State, 86 S.W. 1029 (Tex. Crim. App. 1905). The
purpose of the provision was to prevent quackery and incompetence, and it was used
over the years to limit practice by osteopaths, naturopaths, chiropractors,
39 GEORGE D. BRADEN ET AL., THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 766 (1977). CR at 594. 40 Act of February 22, 1901, 27th Leg., R.S., ch. 12, 1901 Tex. Gen. Laws 12. 34 chiropodists (now podiatrists), and optometrists. The first interpretation of what was
a “school of medicine” came in Dowdell v. McBride, 92 Tex. 239, 47 S.W. 524
(1898). The case considered whether a requirement that all members of the new
Board of Medical Examiners must be graduates of a school approved by the
American Medical Association (“AMA”) was constitutional. The AMA only
approved schools of allopathic medicine, and thus all members of the board were
allopathic physicians. The court upheld the statute, holding that because the
members of the board were allopathic physicians did not mean that they would not
approve licensees who were trained in other schools of medicine. Id. The applicants
were required, however, to meet the same qualifications and pass the same
examination as allopathic physicians in order to practice medicine. Johnson v. State,
267 S.W. 1057, 1061 (Tex. Civ. App.—Dallas 1924, writ refused). This regulatory
framework led to litigation holding that certain types of healing arts were the practice
of medicine and required to be licensed by the Board of Medical Examiners. 41 The
Legislature finally met success in allowing a health profession to be licensed
separately from doctors of medicine with the passage of the Optometry Act. 42 The
act was passed while the prosecution of one Fred R. Baker for practicing medicine
41 Ex parte Collins, 121 S.W. 501 (Tex. Crim. App. 1909) aff’d sub nom., Collins v. Tex., 223 U.S. 288 (1912) (osteopaths are practicing medicine); Wilson v. State Bd. of Naturopathic Exam’rs, 298 S.W. 946 (Tex. Civ. App.—Austin 1957, writ ref’d n.r.e.) (statute establishing different licensing requirements for naturopaths was unconstitutional). 42 Act of August 27, 1921, 37th Leg., 1st C.S., ch. 51, 1921 Tex. Gen. Laws 159. 35 without a license was pending. Baker v. State, 240 S.W. 924 (Tex. Crim. App.
1921). The court considered the effect of this act and determined that the legislature
had successfully defined the practice of optometry as other than the practice of
medicine. Id. at 930. The court determined that the Legislature could define the
powers and duties of a profession as distinct from the practice of medicine. Id.
The attempts to bring chiropractic into Texas met with similar difficulties. The
first litigation on the subject of chiropractic was a criminal prosecution for practicing
medicine without a license. Teem v. State, 183 S.W.1144 (Tex. Crim. App. 1916).
The court examined testimony concerning the nature of chiropractic and determined
that it was the practice of medicine and required licensure to be practiced in Texas.
In 1943, the Legislature passed an act authorizing and licensing the practice of
chiropractic in Texas.43 It attempted to establish a distinction for chiropractic to
allow it to have its own licensing board and requirements for licensure. Id. This
was quickly ruled unconstitutional as violative of Article XVI, § 31. Ex parte
Halsted, 182 S.W.2d 479 (Tex. Crim. App. 1944). The current Chiropractic Act was
passed in 1949, and has survived without challenge under this section of the Texas
Constitution, until now.44
43 Act of May 5, 1943, 48th Leg., R.S., ch. 359, 1943 Tex. Gen. Laws 627. 44 Act of April 21, 1949, 51st Leg., R.S., ch. 94, 1949 Tex. Gen. Laws 160. 36 A degree of order in the interpretation of this constitutional provision was
finally established with the case of Schlichting v. Texas State Board of Medical
Examiners. 158 Tex. 279, 310 S.W.2d 557 (1957). In an action seeking to enjoin a
naturopath from practicing medicine without a license, the court drew a distinction
between naturopathy, which was defined as diagnosing and treating “human ills of
all kinds,” and healing arts treating limited portions of the human anatomy, such as
dentistry, chiropody, and chiropractic. Id., 158 Tex. at 289, 310 S.W.2d at 564. The
continuing viability of Schlichting’s interpretation of this constitutional provision
was recognized in Texas Board of Chiropractic Examiners v. Texas Medical
Association. 375 S.W.3d at 466. Plaintiff erroneously asserts that chiropractic and
acupuncture are “schools of medicine” within the meaning of Art. XVI, § 31. Thus,
in the very authority TAAOM cites, the court held that the practice of chiropractic
is not a school of medicine under Art. XVI, § 31, precisely because their practitioners
are limited to a specific part of the body, the musculoskeletal system. If chiropractic
does not constitute a school of medicine, as the Texas Supreme Court held, the
distinction in requirements for training in acupuncture cannot constitute a preference
to one school of medicine. TAAOM’s argument under Texas Constitution Art. XVI,
§ 31 fails.
37 B. Senate Bill 361 Did Not Violate the One-Subject Rule of Art. III, § 35(a) of the Texas Constitution.
TAAOM claims that, if S.B. 361 “additionally expanded the scope of the
practice of chiropractic, it violated the one subject rule” contained in Texas
Constitution, Art. III, § 35(a). TAAOM Brief at 53. That section of the Texas
Constitution states the following:
(a) No bill, (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject.
This provision has been interpreted infrequently, but there are significant
cases that provide guidance for the Court. A bill is presumed to be constitutional
and the burden of proof is on the person challenging it. LeCroy v. Hanlon, 713
S.W.2d 335, 337 (Tex. 1986). The Court should liberally construe both the
constitutional provision and the statute in question to support constitutionality. Id.
For a bill to be considered as having a single subject, the provisions must relate,
directly or indirectly, to the same general subject and have a mutual connection. Id.
Texas courts focus on the logical relationship between the provisions and the general
subject.45 The subject matter of the bill, not the caption, is the relevant measure of
whether the bill contains two subjects. The caption may be examined only to
45 See, e.g., Ex parte Jimenez, 159 Tex. 183, 188, 317 S.W.2d 189, 194 (1958) (bill will be upheld on single-subject rule “if [a provision] has any logical relationship to the general subject”); Dellinger v. State, 115 Tex. Crim. 480, 483, 28 S.W.2d 537, 539 (1930) (“[W]here the provisions are germane in any degree, the law will be upheld.”). 38 determine if it “sheds any light on the general subject of the bill.” Ex parte Jones,
440 S.W.3d 628, 635 (Tex. Crim. App. 2014). The threshold for determining that a
bill does not violate the one-subject rule is quite low. Id. A bill will be upheld on
the single-subject rule “if [a provision] has any logical relationship to the general
subject”). Ex parte Jimenez, 159 Tex. at 188, 317 S.W.2d at 194.
TAAOM seems to argue that this provision in S.B. 361 is some general
enlargement of the scope of practice of chiropractic. Yet, the effect of this provision
is narrowly defined and is directly related to the bill in general. Senate Bill 361 was
the sunset bill for the State Board of Acupuncture Examiners. It was 25 pages long
and dealt with numerous aspects of the practice of acupuncture and the business of
the Acupuncture Board. The provision at issue here amends only the Acupuncture
Act and defines the exception to the Acupuncture Act that allows chiropractors to
practice acupuncture without being licensed under that act. Section 205.003 of the
Acupuncture Act declares that the Act “does not apply to a health care professional
licensed under another statute of this state and acting within the scope of the license.”
Tex. Occ. Code § 205.003(a). The amendment to add “nonincisive, nonsurgical”
clarifies that a chiropractor acting within the scope of his or her practice is exempt
from the Acupuncture Act, and thus directly impacts the Acupuncture Act. It is as
germane to define who is not subject to the Acupuncture Act as it is to define who
is subject to it and how they are regulated. Thus, this part of the bill directly relates
39 to the Acupuncture Act. There is a logical relationship between the regulation of the
practice of acupuncture and the determination of who should be exempt from
regulation by the State Board of Acupuncture Examiners.
For another example, consider Texas Occupations Code § 151.052. This
provision creates exemptions from the Medical Practice Act for other licensed
professions, such as dentists, nurses, optometrists, chiropractors, and others. The
inclusion of this provision in the law is not only germane, but essential to allow for
the orderly licensing and regulation of the various medical professions. The
amendment to the Acupuncture Act to define the exemption for chiropractors from
the Acupuncture Act serves exactly the same purpose. What was added to the
Acupuncture Act was not an amendment that changed the scope of practice of
chiropractic, it was a provision that defined the exemption for chiropractors from the
requirements to be licensed under that Act in order to practice acupuncture. That
exemption existed, and continues to be in force, as Texas Occupations Code
§ 205.003(a). Thus, Senate Bill 361 did not violate Article III, § 35 of the Texas
Constitution.
III. Statute of Limitations.
“Statutes of limitations preclude claimants from sleeping on their rights.”
Little v. Smith, 943 S.W.2d 414, 418 (Tex. 1997). In this case, the Board erroneously
asserted in the court below that the rules in question had not been amended since
40 2009. TAAOM correctly points out that both rules were amended in 2013. The
Board withdraws this affirmative defense from the consideration of the Court.
Laches, however, may provide an alternative basis to affirm the judgment.
IV. Issues Not Before the Court
A. The Issue Of Whether Chiropractors Are Adequately Trained To Perform Acupuncture Safely Is A Fact Issue Not Before This Court.
TAAOM spends a considerable amount of time in its Brief discussing the
relative training received by licensed acupuncturists as opposed to chiropractors who
meet the Board’s requirements for the practice of acupuncture. Their contention is
that the Board’s rules allow untrained chiropractors to practice acupuncture and thus
“creates a public health risk,” implying that the practice of acupuncture by
chiropractors endangers the public. TAAOM Brief at 28. TAAOM did not provide
the trial court with any evidence to support its assertions. Neither did it assert that
this is a fact issue that would preclude summary judgment in favor of the Board.
The question of whether chiropractors receive adequate training to perform
acupuncture in a safe and effective manner is a question of fact that is not susceptible
to a decision on summary judgment. The Board offered the opinion of its designated
expert witness, Dr. Kenneth Thomas, D.C., on this subject, disputing TAAOM’s
assertions and creating a fact issue that will preclude any consideration of the relative
safety and efficacy of acupuncture performed by chiropractors in the determination
41 of TAAOM’s Motion for Summary Judgment. Affidavit of Kenneth Thomas, D.C.,
CR at 714-15. This issue was not the basis of the decision below and should not be
an issue to be considered by the Court. Because TAAOM failed to assert that this
issue precluded summary judgment in favor of the Board, it has waived the issue in
this appeal.
B. The Behavior Of The Chiropractic Board In Defining The Scope Of Practice In Previous Cases Is Irrelevant To This Case.
TAAOM complains at length about alleged past transgressions of the Board
in defining the scope of practice of chiropractic. See TAAOM Brief at 6-8. TAAOM
complains that the Board issued opinions concerning the scope of practice of
chiropractic rather than a comprehensive rule defining that scope. TAAOM Brief at
9. TAAOM ignores the fact that the issuance of such opinions was specifically
sanctioned by the Legislature: “The Board shall issue all opinions [on scope of
practice] based on a vote of a majority of the Board at a regular or called meeting.”46
TAAOM alleges that the Board maintains the definition of “incisive” in
contravention of the Court’s decision in Texas Board of Chiropractic Examiners v.
Texas Medical Association. TAAOM Brief at 13. Yet, this rule was not challenged
by the litigants in that case. Tex. Bd., 375 S.W.3d at 476. Such protestations are
irrelevant to the determination of the merits of this case. The Board can only
46 Act of May 28, 1995, 74th Tex. Leg. R.S., ch. 965, § 20, 1995 Tex. Gen. Laws 4802. 42 conclude that TAAOM raises this issue in an effort to prejudice this Court against
the Board and the chiropractic profession as a whole. The Court should disregard
all such arguments.
PRAYER
The Board asks the Court to affirm the Judgment of the trial court in this
matter and uphold the validity of the rules of the Board.
Respectfully submitted,
KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
JAMES E. DAVIS Deputy Attorney General for Civil Litigation
DAVID A. TALBOT, JR. Chief, Administrative Law Division
/s/ Joe H. Thrash JOE H. THRASH Bar No. 19995500 Assistant Attorney General Administrative Law Division P. O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 475-4203 Facsimile: (512) 320-0167 Joe.thrash@texasattorneygeneral.gov ATTORNEYS FOR APPELLEES
43 CERTIFICATE OF CONFERENCE
I hereby certify that I have conferred with opposing counsel concerning the Motion to Strike and they are not in agreement with the Motion.
/s/ Joe H. Thrash JOE H. THRASH Assistant Attorney General
CERTIFICATE OF COMPLIANCE
In compliance with Travis County Local Rule 10.5 and Texas Rule of Appellate Procedure 9.4(i)(3) and relying on the word count function in the word processing software used to produce this document, I certify that the number of words in this document is 9,526 excluding the portions that are exempted by Tex. R. App. P. 9.4(i)(1).
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Appellees’ Brief was served via e- serve and e-mail on this the ninth day of October, 2015 to the following:
Craig T. Enoch Via electronic service and email ENOCH KEVER PLLC 600 Congress Avenue Suite 2800 Austin, Texas 78701 cenoch@enochkever.com
44 Melissa A. Lorber mlorber@enochkever.com Shelby O’Brien sobrien@enochkever.com Telephone: (512) 615-1200 Facsimile: (512) 615-1198 Attorneys for Appellant Texas Association of Acupuncture and Oriental Medicine
Texas Association of Acupuncture and Oriental Medicine v. Texas Board of Chiropractic Examiners And Patricia Gilbert, Executive Director in Her Official Capacity (Texas Association of Acupuncture and Oriental Medicine v. Texas Board of Chiropractic Examiners And Patricia Gilbert, Executive Director in Her Official Capacity) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.