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 7698756 THIRD COURT OF APPEALS AUSTIN, TEXAS 11/5/2015 11:49:41 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 11/5/2015 11:49:41 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 __________________________________________________________________
BOARD’S REPLY TO ACUPUNCTURE ASSOCIATION’S RESPONSE TO THE BOARD’S MOTION TO STRIKE
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 BOARD’S REPLY TO ACUPUNCTURE ASSOCIATION’S RESPONSE TO THE BOARD’S MOTION TO STRIKE
The Texas Association of Acupuncture and Oriental Medicine (“TAAOM”)
offers two justifications for its violation of Tex. R. App. P. 34.1 in its Response to
the Motion to Strike; neither avails. First, disclaiming any intent to supply evidence
that it failed to offer at the trial court level, TAAOM opines that citation of websites
in briefs is common practice and “one that the Office of the Attorney General
routinely follows.” Then, in an apparent about-face, TAAOM asks that the Court
take judicial notice of the cited material.
The “everybody does it” excuse does not work with most parents of teenagers,
and should not work with this Court. The fact that people frequently run red lights
does not make the conduct legal. The question is not whether another attorney in a
different case cited a Court to information it can find on-line for that other lawyer’s
purpose in another suit. The question is whether these lawyers may permissibly cite
evidence outside the record they made at the trial court for the purpose of filling
evidentiary holes in that record.
Next, tacitly admitting that the information that they want the Court to
consider is evidentiary in nature, TAAOM asserts that the Court may take judicial
notice of the material. See Response at 3. Although Rule 201(b) does permit a court
to 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
2 reasonably be questioned,” it does not permit an appealing party to bring new
evidence to the Court to create a dispute about a material fact that did not exist when
the trial court granted summary judgment. Tex. R. Evid. 201(b) (emphasis added).
Furthermore, TAAOM misapplies Rule 201(b). Rather than asserting that the
facts stated on the website are “not subject to reasonable dispute” because of the
unquestionable accuracy of those sources, TAAOM argues that “it cannot
reasonably be questioned that these internet websites say what they say.” Id.
(emphasis added). This is an attempt to shift the Court’s attention away from the
accuracy of the website’s content to the accuracy of the website’s transcription of
content. Judicial notice is usually applied to documents such as highway names and
geographic designations within the court’s jurisdiction or matters of public record.
Apostolic Ch. v. American Honda Motor Co., 833 S.W.2d 553, 555-56 (Tex. App.—
Tyler 1992, writ denied); Langdale v. Villamil, 813 S.W.2d 187, 190 (Tex. App.—
Houston [14th Dist.] 1991, no writ). An examination of the websites TAAOM cites
will establish that they do not have the reliability that would allow the Court to take
judicial notice of their content.
The first information to which the Board objects best illustrates the fallacy of
TAAOM’s claim. In footnote 29 and again in footnote 36, TAAOM cites the
recording of a hearing held by the Board concerning acupuncture as practiced by
chiropractors. (https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3).
3 No part of the recording of this hearing was introduced at the trial court. TAAOM
asserts that the Executive Director of the Board made a statement against interest
during the hearing in this footnote. TAAOM Brief at 21. It is the truth of this
statement that is at issue here, not whether the recording of the hearing was accurate.
No part of the recording of an oral hearing could meet the standard of “sources whose
accuracy may not reasonably be questioned.” Id. This is a blatant attempt to
introduce evidence into the appellate record that was not a part of the trial court
record.
Other documents included in TAAOM’s Brief without reference to the record
are not primarily websites of accrediting bodies as TAAOM states in its response.
TAAOM Response at 3. The citations are primarily to college catalogs of both
acupuncture colleges and chiropractic colleges. Board’s Motion to Strike at 2-3.
This Court is asked not only to accept that the documents are correct, but also that
the various schools actually conform to the stated course offerings and curriculum.
The Court has no basis to accept that the accuracy “may not reasonably be
questioned.” Tex. R. Evid. 201(b).
The documents relate to TAAOM’s argument that chiropractic education is
inadequate to prepare chiropractors to practice acupuncture in a safe and effective
manner. Yet, this issue is not properly before the Court in this appeal. As noted at
length in the Board’s Brief, this issue could be determined only after a factual
4 determination, not on summary judgment. The trial court’s decision in this case is
based on statutory construction. Thus, the documents are not relevant to the
determination of this Court whether or not the summary judgment was properly
granted. Rule 201 applies only to adjudicative facts, those that apply to the
determination of the specific case. Emerson v. State, 880 S.W.2d 759, 764 (Tex.
Crim. App. 1994). Here, global questions about comparative educational
requirements of the two types of colleges are legislative facts and not subject to Rule
201. Id. Thus, the determination of whether the Court should take notice of the facts
alleged by TAAOM is discretionary rather than mandatory under Rule 201. Id. at
765. Since the issue is not determinative to this appeal, the Court should reject
TAAOM’s request that the Court take notice of these documents.
PRAYER
The Board asks the Court to grant the Board’s Motion to Strike and not
consider the documents TAAOM has cited or any argument based on them.
Respectfully submitted,
KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
JAMES E.
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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.