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 7603947 THIRD COURT OF APPEALS AUSTIN, TEXAS 10/29/2015 3:28:53 PM JEFFREY D. KYLE CLERK

No. 3-15-00262-CV FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS In the Court of Appeals 10/29/2015 3:28:53 PM Third District of Texas — Austin JEFFREY D. KYLE Clerk

TEXAS ASSOCIATION OF ACUPUNCTURE AND ORIENTAL MEDICINE,

Appellant, v.

TEXAS BOARD OF CHIROPRACTICE EXAMINERS AND YVETTE YARBROUGH, EXECUTIVE DIRECTOR IN HER OFFICIAL CAPACITY,

Appellees.

On Appeal from 201st District Court, Travis County, Texas Cause No. D-1-GN-14-000355

ACUPUNCTURE ASSOCIATION’S RESPONSE TO THE CHIROPRACTIC BOARD’S MOTION TO STRIKE

Craig T. Enoch Melissa A. Lorber Shelby O’Brien ENOCH KEVER PLLC 600 Congress Avenue, Suite 2800 Austin, Texas 78701 (512) 615-1200 / (512) 615-1198 fax

Attorneys for Appellant

1 Appellant Texas Association of Acupuncture and Oriental Medicine

(“Acupuncture Association”) files this response to Appellees Texas Board of

Chiropractic Examiners and Yvette Yarbrough, in her Official Capacity as

Executive Director of the Chiropractic Board’s (“Chiropractic Board”) motion to

strike. The Acupuncture Association requests for the Court to deny the motion.

The Chiropractic Board asks the Court to strike a laundry list of footnotes in

the Acupuncture Association’s brief: specifically, footnotes 29, 32-36, and 38-39.

These footnotes simply reference websites that are readily available to the public

on the internet. But the Chiropractic Board claims that because the cited websites

are not in the clerk’s or reporter’s records, the Acupuncture Association may not

cite them in its brief.

Links to these websites were included in the Acupuncture Association’s

brief for the Court’s reference, if the Court wishes to consult them. The question

before this Court is one of law, not one of fact that is dependent on evidence. The

Acupuncture Association is not attempting to put new evidence into the record by 1 attaching copies of documents to its appendix. Referencing internet websites in

1 See Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex. App.—Dallas 2005, pet. denied) (“an appellate court cannot consider documents or hearings that are cited in the brief and attached as appendices if they are not formally included in the record on appeal”) (emphasis added); In re Estate of Bendtsen, 230 S.W.3d 823, 830 (Tex. App.—Dallas 2007, pet. denied) (a court should not consider evidence attached to a brief that is not included in the appellate record—such as new affidavits).

2 appellate briefs—even if hard copies of the linked documents were not put into

evidence in the trial court—is a common practice, one that the Office of the 2 Attorney General routinely follows.

Further, a court may take judicial notice of a fact that is not subject to

reasonable dispute because it “can be accurately and readily determined from

sources whose accuracy cannot reasonably be questioned.” TEX. R. EVID. 201(b).

A court may take judicial notice at any state in a proceeding. Id. 201(d); see also

Pub. Util. Counsel v. Pub. Util. Comm’n of Tex., 878 S.W.2d 598, 600 (Tex.

1994). Here, it cannot reasonably be questioned that these internet websites say

what they say. Indeed, the Chiropractic Board does not even attempt to question

these websites’ accuracy. The cited websites are mostly those of accrediting bodies

that are expressly referenced in Acupuncture Board and Chiropractic Board rules.

Thus, the Court may take judicial notice of these websites.

2 See Glenn Hegar, in his Official capacity as Texas Comptroller, and Ken Paxton, in his Official Capacity as Texas Attorney General v. Texas Small Tobacco Coalition, Petitioner’s Brief on the Merits, at 8, 10, 12, 18-19, 24-25, 59, available at: http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=bc596889-bf61-4627- 9d27-aabddbfb9bb9&coa=cossup&DT=BRIEFS&MediaID=19589422-da99-407a-81c1- 61f33732e971.

3 PRAYER

Appellant Texas Association of Acupuncture and Oriental Medicine

respectfully prays that this Court deny the Chiropractic Board’s motion to strike.

The Acupuncture Association further requests any other relief to which it may be

entitled.

Respectfully submitted,

By: /s/ Craig T. Enoch Craig T. Enoch Texas Bar No. 00000026 cenoch@enochkever.com Melissa A. Lorber Texas Bar No. 24032969 mlorber@enochkever.com Shelby O'Brien Texas Bar No. 24037203 sobrien@enochkever.com ENOCH KEVER PLLC 600 Congress Avenue Suite 2800 Austin, Texas 78701 512.615.1200 Telephone 512.615.1198 Fax Attorneys for Texas Association of Acupuncture and Oriental Medicine

4 CERTIFICATE OF SERVICE

I hereby certify that, on October 29, 2015, the Acupuncture Association’s

Response to the Chiropractic Board’s Motion to Strike was served via electronic

service on the following:

Joe H. Thrash Assistant Attorney General Administrative Law Division P.O. Box 12548 Austin, Texas 78711 Joe.Thrash@texasattorneygeneral.gov

/s/ Craig T. Enoch Craig T. Enoch