IN THE SUPREME COURT OF TEXAS ════════════ NO. 18-1223 ════════════
TEXAS BOARD OF CHIROPRACTIC EXAMINERS; PATRICK FORTNER, IN HIS OFFICIAL CAPACITY AS THE BOARD’S EXECUTIVE DIRECTOR; AND TEXAS CHIROPRACTIC ASSOCIATION, PETITIONERS,
v.
TEXAS MEDICAL ASSOCIATION, RESPONDENT ════════════════════════════════════════════════════ ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS ════════════════════════════════════════════════════
Argued September 16, 2020
CHIEF JUSTICE HECHT delivered the opinion of the Court, in which JUSTICE GUZMAN, JUS- TICE LEHRMANN, JUSTICE DEVINE, JUSTICE BLACKLOCK, and JUSTICE BUSBY joined in full, and in which JUSTICE BOYD and JUSTICE BLAND joined except with respect to Part III(D).
JUSTICE BLAND delivered an opinion dissenting in part, in which JUSTICE BOYD joined.
JUSTICE HUDDLE did not participate in the Court’s decision.
This ten-year-old case is part of “a long history of professional, scientific, or economic
antagonism between chiropractors and the medical community, and resultant disputes, spanning
all three branches of government, regarding where any legal line between chiropractic and the practice of medicine is or should be.” 1 The Texas Chiropractic Act (the Act) 2 draws that line by
defining the practice of chiropractic to include evaluating the musculoskeletal system and improv-
ing the subluxation complex. 3 The Texas Board of Chiropractic Examiners (the Board) has issued
rules defining both terms as involving nerves in addition to muscles and bones. 4 Another Board
rule authorizes chiropractors to perform an eye-movement test for neurological problems that is
known by the acronym VONT. 5 The Texas Medical Association (TMA) asserts that only physi-
cians may perform VONT. But as we recently stated, “every act that a physician may do is not
automatically the unlawful practice of medicine when done by a non-physician, and terminology
in one field may overlap with that of another.” 6 We conclude that the challenged rules, read in
context, do not exceed the statutory scope of chiropractic practice. We reverse that part of the court
of appeals’ judgment declaring the rules invalid 7 and render judgment that they are valid.
1 Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n, 375 S.W.3d 464, 467 (Tex. App.—Austin 2012, pet. denied). That case was a precursor to this one. The parties have appealed the underlying case three times to the court of appeals and twice to this Court. Each appeal to the court of appeals is styled Texas Board of Chiropractic Examiners v. Texas Medical Board. In order they are No. 03-12-00151-CV, 2012 WL 5974063 (Tex. App.—Austin Nov. 21, 2012, no pet.) (mem. op.); No. 03-14-00396-CV, 2014 WL 7014530 (Tex. App.—Austin Dec. 8, 2014, pet. denied) (mem. op.); and 566 S.W.3d 776 (Tex. App.—Austin 2018) (the decision below).
2 TEX. OCC. CODE §§ 201.001–201.606.
3 Id. § 201.002(b)(1)–(2).
4 See 22 TEX. ADMIN. CODE § 78.1(a)(5), (9).
5 See id. § 78.1(c)(3)(B) (providing that certain chiropractors may perform “Technological Instrumented Vestibular-Ocular-Nystagmus Testing” on patients).
6 Tex. State Bd. of Exam’rs of Marriage & Family Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28, 41 (Tex. 2017).
7 566 S.W.3d 776 (Tex. App.—Austin 2018).
2 I
A
Chiropractic traces its roots to an encounter in the late 1800s between an alternative-med-
icine practitioner, D.D. Palmer, and his hearing-impaired office janitor. The details of the encoun-
ter have been disputed, but Palmer later claimed that he performed a manual manipulation of the
janitor’s spine, after which his hearing rapidly improved. 8 What is not in dispute is that Palmer
came to theorize that disease and ill health are caused by vertebral misalignment, a condition he
called subluxation. 9
Like medical practice, chiropractic practice has evolved over the last century, though spinal
alignment remains at its core. Today chiropractors are portal-of-entry healthcare providers in all
50 states, meaning that a referral is not required to visit one. Medicare and Medicaid cover chiro-
practic services. Texas’ workers’ compensation regulations authorize the more than 6,000 chiro-
practors in this state to treat injured workers. 10
B
Article XVI, Section 31 of the Texas Constitution authorizes the Legislature to “pass laws
prescribing the qualifications of practitioners of medicine in this State, and to punish persons for
mal-practice”. Exercising that authority, the Legislature has passed the Medical Practice Act (the
8 A brief summary of the history of chiropractic may be found on the American Chiropractic Association’s website. Origins and History of Chiropractic Care, AM. CHIROPRACTIC ASS’N, https://www.acatoday.org/About/His- tory-of-Chiropractic (last visited Jan. 24, 2021).
The word subluxation, built on the Latin luxatio, dislocation, means a partial dislocation. Subluxation, WEB- 9
STER’S THIRD NEW INT’L DICTIONARY (1969).
10 28 TEX. ADMIN. CODE § 42.20(a).
3 MPA). 11 Practicing medicine is broadly defined as “the diagnosis, treatment, or offer to treat a
mental or physical disease or disorder or a physical deformity or injury by any system or method”. 12
The MPA empowers the Texas Medical Board “to regulate the practice of medicine” in Texas 13
and provides that “[a] person may not practice medicine in this state unless the person holds a
license issued” by the Board. 14 The MPA carves out certain nonphysician healthcare providers
whose practices would otherwise fall within the definition of practicing medicine, including den-
tists, optometrists, nurses, podiatrists, psychologists, physical therapists, 15 and “licensed chiroprac-
tor[s] engaged strictly in the practice of chiropractic as defined by law”. 16
The Act defines chiropractic practice. As passed in 1949, the Act provided that a chiro-
practic practitioner is one “who shall employ objective or subjective means . . . for the purpose of
ascertaining the alignment of the vertebrae of the human spine[] and . . . adjusting the vertebrae to
correct any subluxation or misalignment thereof.” 17 Forty years later, the Legislature amended this
provision to define a chiropractic practitioner as one who “(1) uses objective or subjective means
to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal
system of the human body [or] (2) uses adjustment, manipulation, or other procedures in order to
11 TEX OCC. CODE §§ 151.001–170.003.
12 Id. § 151.002(13).
13 Id. § 152.001(a). 14 Id. § 155.001.
15 Id. § 151.052(1)–(2), (4)–(7). 16 Id. § 151.052(3).
17 Act of Apr. 21, 1949, 51st Leg., R.S., ch. 94, § 1, 1949 Tex. Gen. Laws 160, 160–161 (current version at TEX. OCC. CODE §§ 201.001–201.606). The Court of Criminal Appeals had invalidated prior legislation regulating chiropractic practice. See Ex parte Halsted, 182 S.W.2d 479, 488 (Tex. Crim. App. 1944).
4 improve subluxation or the biomechanics of the musculoskeletal system”. 18 We refer to these two
provisions as evaluation and treatment, respectively. In 1995, the Legislature further clarified the
evaluation provision. 19 Today, following further amendments, the scope of chiropractic practice,
now codified in § 201.002(b) of the Act, is as follows:
(b) A person practices chiropractic . . . if the person:
(1) uses objective or subjective means to diagnose, analyze, examine, or evaluate the biomechanical condition of the spine and musculo- skeletal system of the human body; [or]
(2) performs nonsurgical, nonincisive procedures, including adjustment and manipulation, to improve the subluxation complex or the bio- mechanics of the musculoskeletal system[.] 20
The Act does not define the terms in these provisions. It excludes “incisive or surgical
procedures” from the practice, 21 but that exclusion does not apply to “the use of a needle for the
purpose of drawing blood for diagnostic testing.” 22 The Act also excludes from chiropractic prac-
tice prescribing drugs and using x-rays or other therapies that expose the body to radiation. 23 But
the Act otherwise leaves to the Board the adoption of “rules clarifying what activities are included
within the scope of the practice of chiropractic and what activities are outside of that scope.” 24
18 Act of May 12, 1989, 71st Leg., R.S., ch. 227, § 1, 1989 Tex. Gen. Laws 1005, 1005 (current version at TEX. OCC. CODE §§ 201.002(b)(1)–(2)). 19 See Act of May 29, 1995, 74th Leg., R.S., ch. 965, § 13, 1995 Tex. Gen. Laws 4789, 4802 (current version at TEX. OCC. CODE §§ 201.002(b)(1)–(2)).
20 TEX. OCC. CODE § 201.002(b)(1)–(2).
21 Id. § 201.002(c)(1). 22 Id. § 201.002(a)(3).
23 Id. § 201.002(c)(2)–(3). 24 Id. § 201.1525.
5 The Board had no such rulemaking authority under the 1949 Act; its function was to license
and train chiropractors. 25 In 1981, the Legislature directed the Board to “adopt guidelines
for . . . acceptable practices for all aspects of the practice of chiropractic.” 26 But the Legislature
drew back in 1993, forbidding the Board from
adopt[ing] a rule relating to the meaning of the practice of chiropractic under this Act except for:
(1) a rule relating to an adjustment, manipulation, or other procedure directly related to improving the subluxation of the spine or of the musculoskeletal system as it directly relates to improving the subluxation of the spine; or
(2) a rule that defines an unacceptable practice of chiropractic and provides for a penalty or sanction under this Act. 27
In the very next session, the Legislature about-faced, replacing this very restrictive provision with
a 12-word carte blanche: “The Board shall adopt rules for regulation and enforcement of this
Act.” 28 Finally, in 2005 the Legislature amended the Act to clarify that “[t]he board may adopt
rules . . . necessary to . . . regulate the practice of chiropractic” and “shall adopt rules for the en-
forcement” of the Act. 29 More specifically, the Act states:
25 See Act of Apr. 21, 1949, 51st Leg., R.S., ch. 94, § 4, 1949 Tex. Gen. Laws 160, 161–162 (“The Board may prescribe rules, regulations and bylaws in harmony with the provisions of this Act for its own proceedings and government for the examination of applicants for license to practice chiropractic.”) (current version at TEX. OCC. CODE § 201.1525). 26 Act of May 26, 1981, 67th Leg., R.S., ch. 781, § 4(d), 1981 Tex. Gen. Laws 2955, 2957 (current version at TEX. OCC. CODE § 201.1525). 27 Act of May 30, 1993, 73rd Leg., R.S., ch. 910, § 6, sec. 4(c), 1993 Tex. Gen. Laws 3834, 3837 (current version at TEX. OCC. CODE § 201.1525). 28 Act of May 29, 1995, 74th Leg., R.S., ch. 965, § 15, sec. 4(c), 1995 Tex. Gen. Laws 4789, 4802 (current version at TEX. OCC. CODE § 201.1525). 29 TEX. OCC. CODE § 201.152 (a)–(b).
6 The board shall adopt rules clarifying what activities are included within the scope of the practice of chiropractic and what activities are outside of that scope. The rules:
(1) must clearly specify the procedures that chiropractors may perform;
(2) must clearly specify any equipment and the use of that equipment that is prohibited; and
(3) may require a license holder to obtain additional training or certifi- cation to perform certain procedures or use certain equipment. 30
Thus, over time the Legislature has chosen to prescribe chiropractic practice in broad terms
undefined by statute and to require the Board to clarify by rules what activities are included and
excluded. The Board consists of nine members, six chiropractors and three public members, all
appointed by the Governor with Senate approval. 31 The chiropractor appointees must be “reputa-
ble” and currently “practicing”. 32 Eligibility disqualifiers in the Act help protect against conflicts
of interest. 33 As a state administrative agency, the Board is required to comply with the notice-and-
comment procedures of the Administrative Procedure Act (the APA) when promulgating rules. 34
But the Act also imposes on the Board the additional obligation—“early in the rule development
process” and “before [it] complies with the rulemaking requirements of” the APA—to “identify[]
[the] persons who will be most affected” by the proposed rules and to solicit their “advice and
30 Id. § 201.1525.
31 Id. § 201.051.
32 Id. § 201.051(a)(1).
33 See id. §§ 201.052–201.053.
34 Id. § 201.1526(a); see also TEX. GOV’T CODE § 2001.023(a) (requiring an agency to give notice of a pro- posed rule by publishing it in the Texas Register at least 30 days before its effective date); id. § 2001.024 (imposing detailed requirements for the content of the notice); id. § 2001.029 (requiring an agency to give “all interested persons a reasonable opportunity” to submit comments and, under certain circumstances, to hold a public hearing before adopting a substantive rule).
7 opinions”. 35 The APA, supplemented by the Act’s requirements, assures that the Board’s rulemak-
ing process is informed by input from interested parties and the public and provides the protection
of judicial review.
C
In 2006, the Board adopted what is now Rule 78.1, titled “Scope of Practice”, defining two
critical terms in the Act’s definition of chiropractic practice. 36 With respect to the evaluation pro-
vision (§ 201.002(b)(1)), Rule 78.1(a)(5) defines musculoskeletal system as “[t]he system of mus-
cles and tendons and ligaments and bones and joints and associated tissues and nerves that move
the body and maintain its form.” 37 With respect to the treatment provision (§ 201.002(b)(2)),
Rule 78.1(a)(9) defines subluxation complex as
[a] neuromusculoskeletal condition that involves an aberrant relationship between two adjacent articular structures that may have functional or pathological sequelae, causing an alteration in the biomechanical and/or neuro-physiological reflections of these articular structures, their proximal structures, and/or other body systems that may be directly or indirectly affected by them. 38
In comments to the Board, TMA opposed the definition of musculoskeletal system as “so
broad as to include the nervous system and brain, and requested that the definition be limited to
the spine.” 39 The Board rejected the request, noting that its definition was based on medical
35 TEX. OCC. CODE § 201.1526(a)–(b). 36 31 TEX. REG. 8363–8364 (2006) (codified as an amendment to TEX. ADMIN. CODE § 75.16) (proposed Oct. 6, 2006).
37 22 TEX. ADMIN. CODE § 78.1(a)(5).
38 Id. § 78.1(a)(9). 39 31 TEX. REG. at 8363.
8 dictionaries and was limited to structures “that move the body and maintain its form.” 40 TMA also
criticized the definition of subluxation complex as “expansive” and again requested that it be “re-
vised to narrowly focus on the spine.” 41 The Board also rejected this request, stating that its defi-
nition was consistent with the statute. “[A]s commonly used by health care providers,” the Board
explained, “and as commonly described in medical dictionaries, the musculoskeletal system in-
cludes more than the spine.” 42
The Board also adopted in the 2006 scope-of-practice rule a provision, now in Rule 78.1(d),
stating that “[i]n the practice of chiropractic, licensees may render an analysis, diagnosis, or other
opinion regarding the findings of examinations and evaluations.” 43 At that time, the Act’s evalua-
tion provision used only the words “analyze, examine, or evaluate” and did not include the word
diagnose. Shortly after the rule was adopted, TMA sued for a declaration that diagnosis is the
practice of medicine and beyond the Act’s authorization of chiropractors to “analyze, examine, or
evaluate” certain conditions. The court of appeals rejected TMA’s contention, concluding that the
diagnosis authorized by the rule was confined to the statutory practice of chiropractic. 44
While that litigation was pending, the Board in 2010 adopted what is now Rule
78.1(c)(3)(B), authorizing chiropractors who complete specialized training and pass an
40 Id.
41 Id. at 8363–8364. 42 Id. at 8364.
43 22 TEX. ADMIN. CODE § 78.1(d)(1). 44 Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n, 375 S.W.3d 464, 495–496 (Tex. App.—Austin 2012, pet. denied).
9 examination to perform vestibular-ocular-nystagmus testing, or VONT. 45 VONT is generally an
eye-movement test performed with cameras or electrodes to detect nystagmus, a type of involun-
tary, side-to-side eye movement that may indicate a problem in the brain, inner ears, or eyes. Au-
thorized chiropractors use the test to help diagnose the cause of a patient’s balance problem by
ruling out a neurological condition that would require referral of the patient to a physician.
A few months later, TMA sued to invalidate the VONT rule as exceeding the scope of
chiropractic practice prescribed by the Act. After the court of appeals reversed summary judgment
for TMA, 46 TMA amended its pleadings on remand to challenge Rule 78.1(a)’s definitions of the
musculoskeletal system and the subluxation complex, asserting that their references to “nerves”,
“neuromusculoskeletal condition”, and “neuro-physiological reflections” exceed the Act’s re-
striction of chiropractic practice to “biomechanical condition[s]”. 47 TMA added that the definitions
authorized diagnosis, which it continued to insist, as it had in its earlier suit, is solely a medical
45 35 TEX. REG. 9508, 9508 (2010) (to be codified as an amendment to 22 TEX. ADMIN. CODE § 75.17) (proposed Oct. 22, 2010) (adopting “an amendment to § 75.17 without changes to the proposed text as published” in the Texas Register on June 25, 2010). Rule 78.1(c)(3)(B) provides in full that
Technological Instrumented Vestibular-Ocular-Nystagmus Testing may be performed by a licensee with a diplomate in chiropractic neurology and that has successfully completed 150 hours of clinical and didactic training in the technical and professional components of the procedures as part of coursework in vestibular rehabilitation including the successful completion of a written and perfor- mance examination for vestibular specialty or certification. The professional component of these procedures may not be delegated to a technician and must be directly performed by a qualified licensee.
22 TEX. ADMIN. CODE § 781.(c)(3)(B).
Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n, No. 03-12-00151-CV, 2012 WL 5974063, at *1 (Tex. 46
App.—Austin Nov. 21, 2012, no pet.) (mem. op.).
47 Compare 22 TEX. ADMIN. CODE § 78.1(a)(5), (a)(9), with TEX. OCC. CODE § 201.002(b)(1).
10 practice. 48 After a bench trial, the court issued findings of fact and conclusions of law, holding that
the challenged rules are invalid because they exceed the statutory scope of chiropractic practice. It
rendered judgment accordingly. The Board appealed, along with the Texas Chiropractic Associa-
tion (TCA), which had joined the suit.
The court of appeals affirmed in part. Relying on the trial court’s findings of fact and the
evidence adduced at trial, the court of appeals held that Rule 78.1(a)(5) and (9), defining muscu-
loskeletal system and subluxation complex as involving the nervous system, exceed the scope of
practice prescribed by § 201.002(b)(1)–(2) of the Act. The court concluded:
Although consideration of other bodily systems may be necessary to evaluate the biomechanical condition of the spine and the musculoskeletal system, that does not mean that the definition of “musculoskeletal system” should be expanded to include associated nerves or that “subluxation complex” should be defined as a condition extending beyond the musculoskeletal system. Based on our review of the evidence put forth before the trial court, we hold that sufficient evidence supports the court’s findings related to the Rule’s reference to nerves and the “neuromusculoskeletal system” in its definition of “musculoskeletal system” or “subluxation complex.”
The court reached the same conclusion regarding Rule 78.1(c)(3)(B), allowing certain chiroprac-
tors to use VONT testing:
Although [the Board] produced evidence indicating that VONT may be a useful tool to chiropractors, the evidence establishes that VONT helps in the diagnosis of vestibular issues. The evidence further establishes that, although vestibular diseases might have an impact on the musculoskeletal system, disorders falling within the ambit of chiropractic do not cause vestibular pathologies. Simply because the test might under some circumstances be useful does not require that chiropractors be able to perform the test—the fact remains that the scope of chiropractic practice is limited under Texas law. On this record, we cannot conclude that the trial court erred in its findings of fact or in concluding that the Rule’s provision related to VONT exceeded the scope of chiropractic. 49
48 On interlocutory appeal, the court of appeals rejected the Board’s argument that TMA’s diagnosis com- plaint was a collateral attack on the final judgment in the prior case. Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n, No. 03-14-00396-CV, 2014 WL 7014530, at *1 (Tex. App.—Austin Dec. 8, 2014, pet. denied) (mem. op.).
49 566 S.W.3d 776, 785–787 (Tex. App.—Austin 2018) (citation omitted). 11 While the appeal was pending, the Legislature amended the evaluation provision of the Act
to add the word diagnose, so that the Act now authorizes chiropractors to “diagnose, analyze,
examine, or evaluate the biomechanical condition of the spine and musculoskeletal system”. 50 The
court of appeals reversed the trial court’s judgment invalidating the rules as authorizing diagnosis
outside the statutory scope of chiropractic practice. 51
We granted the Board’s and TCA’s petitions for review. As their positions are aligned, we
refer to their arguments simply as the Board’s.
II
As a threshold matter, the Board argues that the APA affords TMA no basis for challenging
Rule 78.1. Section 2001.038(a) allows a challenge to an administrative rule “if it is alleged that
the rule or its threatened application interferes with or impairs, or threatens to interfere with or
impair, a legal right or privilege of the plaintiff.” 52 The Board argues that TMA’s assertions do not
meet this standard because there is no evidence that chiropractors are practicing medical neurology
or failing to refer patients with medical problems to physicians. TMA, the Board contends, has
done no more than assert policy differences with the Legislature over the scope of chiropractic
practice. TMA responds that it has alleged that Rule 78.1 diminishes the privilege of practicing
medicine and the value of physicians’ medical licenses by authorizing the unlicensed practice of
medicine.
50 Act of May 22, 2017, 85th Leg., R.S., ch. 294, § 1, 2017 Tex. Gen. Laws 545, 545 (codified at TEX. OCC. CODE § 201.002(b)(1)). 51 566 S.W.3d at 787–788; see Tex. State Bd. of Exam’rs of Marriage & Family Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28, 41 (Tex. 2017) (rejecting TMA’s challenge to an agency rule permitting therapists to provide diagnostic assessments as invading the practice of medicine).
52 TEX. GOV’T CODE § 2001.038(a).
12 We agree with TMA that its allegation satisfies § 2001.038(a). The MPA recognizes that
“the practice of medicine is a privilege” reserved to physicians subject to “licensing, regulating,
and disciplining” under that statute. 53 Obtaining and maintaining the privilege of practicing medi-
cine imposes economic costs on physicians, and allowing nonphysicians to practice medicine out-
side the MPA’s control would impair—or at least threaten to impair—that privilege.
The Board characterizes § 2001.038(a) as a “statutory standing” provision. Constitutional
standing is a prerequisite for subject matter jurisdiction. 54 In Finance Commission of Texas v. Nor-
wood, we treated § 2001.038(a) “as but another expression of the general[,] [constitutional] doc-
trine of standing.” 55 But last Term in Pike v. EMC Management, LLC, we discouraged the use of
the term standing to describe extra-constitutional restrictions on the right of a particular plaintiff
to bring a particular lawsuit. 56 “[T]he question whether a plaintiff has . . . satisfied the requisites of
a particular statute”, we said, “pertains in reality to the right of the plaintiff to relief rather than to
the subject-matter jurisdiction of the court to afford it.” 57
Although the Board does not argue that TMA lacks constitutional standing, “we have an
obligation to examine our jurisdiction any time it is in doubt”. 58 Constitutional standing requires a
53 TEX. OCC. CODE § 151.003. 54 Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012); DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304–305 (Tex. 2008). In Texas, the constitutional prerequisite of standing is grounded in the Open Courts and Separation of Powers provisions of the Texas Constitution. See TEX. CONST. art. I, § 13 (“All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”); id. art. II, § 1 (“The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy . . . and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others . . . .”).
55 418 S.W.3d 566, 582 n.83 (Tex. 2013). 56 610 S.W.3d 763, 774 (Tex. 2020).
57 Id. (citing Dubai Petrol. Co. v. Kazi, 12 S.W.3d 71, 76–77 (Tex. 2000) (cleaned up)).
58 Pike, 610 S.W.3d at 774.
13 concrete injury that is both traceable to the defendant’s conduct and redressable by court order. 59
When constitutional standing is raised for the first time on appeal, the test must be lenient because
“there is no opportunity [for the plaintiff] to cure [a pleading] defect.” 60 Construing the record
“liberally . . . as [we] must” at this stage 61 and “resolving any doubt in [TMA’s] favor”, 62 we con-
clude that TMA has constitutional standing to bring this lawsuit. Keeping in mind that no party
contests TMA’s constitutional standing, we conclude that TMA’s assertion that some physicians
will suffer economic harm due to increased competition from chiropractors sufficiently alleges the
concrete injury required for standing. 63 That alleged injury is directly traceable to the Board’s rule-
making and would be redressed here by judicial invalidation of the challenged rules. Likewise, no
party contests TMA’s associational standing to file suit on behalf of its members, and we conclude
that TMA’s unchallenged allegations satisfy the requirements under our caselaw for associational
standing. 64
See Heckman v. Williamson Cty., 369 S.W.3d 137, 154–155 (Tex. 2012) (citing Lujan v. Defs. of Wildlife, 59
504 U.S. 555, 560–561 (1992)). Texas has adopted the constitutional standing test employed by the federal courts.
60 Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). 61 Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 555, 582 (Tex. 2013).
62 Tex. Ass’n of Bus., 852 S.W.2d at 447. 63 See Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 152 (1970) (holding that organiza- tions could demonstrate constitutional standing to challenge government action based on “alleg[ations] that [in- creased] competition” resulting from such official action “might entail some future loss of profits” for the firms rep- resented by the plaintiff organization).
64 In Texas Association of Business v. Texas Air Control Board, we adopted the three-part test for associa- tional standing articulated by the Supreme Court of the United States: “(a) [the association’s] members would other- wise have standing to sue in their own right; (b) the interests [the association] seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires participation of individual members in the lawsuit.” 852 S.W.2d at 447 (quoting Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)).
14 Having concluded that TMA is entitled to bring this action, we will now consider the merits
of its claims.
III
The issue before us is whether Rules 78.1(a)(5) and (9), which define musculoskeletal sys-
tem and subluxation complex, and Rule 78.1(c)(3)(B), which allows certain chiropractors to per-
form VONT, exceed the scope of practice prescribed by § 201.002(b)(1)–(2) of the Act. We first
set out our standard of review, then consider its application to Board rulemaking, and finally de-
termine the validity of the challenged rules.
Our standard of review in this case is well settled. The parties agree, as they must, that
interpreting the Act and the rules involves only questions of law, which we determine de novo. 65
Although the court of appeals never expressly agreed or disagreed with this standard, it repeatedly
stated that its holdings were based on the evidence and the trial court’s findings. While it was not
improper for the trial court to allow evidence to be offered as background describing medical and
chiropractic practice and placing the case in context, the question whether the Board exceeded its
authority by adopting rules that conflict with the Act is a legal one.
The parties also agree, again as they must, that agency rules are presumed valid and that
the challenger has the burden of showing that a “rule’s provisions are not ‘in harmony with the
general objectives of the act involved.’” 66 The court of appeals acknowledged this principle in
65 See Tex. State Bd. of Exam’rs of Marriage & Family Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28, 33 (Tex. 2017).
66 Id. at 33 (quoting Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 750 (Tex. 1995)).
15 setting out the standard of review 67 but never in its analysis, which gave no deference to the Board’s
expertise regarding chiropractic practice.
When statutes use terms they do not define, as the Act does, “we must apply their common,
ordinary meaning unless a contrary meaning is apparent from the statute’s language.” 68 Of course,
the Act’s terms must be understood in the context of healthcare in general and chiropractic practice
in particular, which are the subject of the Act. 69 The issue is whether the definitions that the Board
adopted in the rules are consistent with the meaning of the terms in the Act.
We recently applied these principles in another case involving a challenge by TMA to the
validity of an administrative rule. In Texas State Board of Examiners of Marriage and Family
Therapists v. Texas Medical Association, TMA objected to an agency rule authorizing marriage
and family therapists to provide diagnostic assessments using the Diagnostic and Statistical Man-
ual of Mental Disorders, commonly referred to as the DSM. 70 TMA argued there, as it also has in
this case, that diagnosis is the practice of medicine and that the rule violated both the Licensed
Marriage and Family Therapists Act and the MPA by empowering therapists to diagnose any men-
tal disease or disorder. The Therapists Board countered that the rule only authorized therapists to
diagnose disorders within their sphere of expertise and training.
We treated the question of the rule’s validity as a purely legal one and explained that we
were obliged to decide it “based on the relevant Texas statutes” and “not on whether [therapists]
67 See 566 S.W.3d 776, 781 (Tex. App.—Austin 2018).
68 Marriage & Family Therapists, 511 S.W.3d at 34.
69 Cf. Murphy Expl. & Prod. Co.-USA v. Adams, 560 S.W.3d 105, 109 (Tex. 2018) (explaining that when interpreting an oil-and-gas lease, “we may consider ‘objectively determinable facts and circumstances that contextu- alize the parties’ transaction’ and ‘inform’ the meaning of the language used” (quoting URI, Inc. v. Kleberg Cty., 543 S.W.3d 755, 758 (Tex. 2018))).
70 511 S.W.3d at 30.
16 are qualified to make DSM diagnoses or whether other states’ laws allow them to.” 71 We began
our analysis with the general principle that state administrative agencies like the Therapists Board
have “only those powers that the Texas Legislature has expressly conferred upon [them] and those
implied powers that are reasonably necessary to carry out [their] statutory duties.” 72 Agency rules
must therefore be “authorized by and consistent with [their] statutory authority.” 73 “Courts gener-
ally presume”, we said, “that agency rules are valid, so parties who challenge a rule have the bur-
den of proving its invalidity.” 74 The challenger’s ultimate burden is to demonstrate “that the rule’s
provisions are not ‘in harmony with the general objectives of the act involved’”, which we discern
from the statute’s plain text. 75 The challenger can meet his burden by showing that the challenged
rule: “(1) contravenes specific statutory language; (2) runs counter to the general objectives of the
statute; or (3) imposes additional burdens, conditions, or restrictions in excess of or inconsistent
with the relevant statutory provisions.” 76 Where the plaintiff argues that an agency rule is too per-
missive, only the first two showings are relevant.
In Marriage and Family Therapists, we explained that when the governing statute does
“not define . . . key terms, we . . . apply their common, ordinary meaning unless a contrary meaning
is apparent from the statute’s language.” 77 We cited for this proposition University of Texas at
71 Id. at 33.
72 Id.
73 Id. (quoting R.R. Comm’n of Tex. v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992)). 74 Id.
75 Id. (quoting Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 750 (Tex. 1995)).
76 Id.
77 Id. at 34.
17 Arlington v. Williams, where we had reiterated that “context is fundamental to understanding the
use of language” and cautioned against drawing “meaning . . . from isolated words or phrases”. 78
If a definition that is “different, more limited, or [more] precise” than the dictionary definition “is
apparent from the term’s use in the context of the statute, [then] we apply that meaning.” 79
The starting point of our analysis in Marriage and Family Therapists was the language of
the Licensed Marriage and Family Therapists Act authorizing therapists to engage in “the evalua-
tion and remediation of cognitive, affective, behavioral, or relational dysfunction in the context of
marriage or family systems.” 80 Against that standard we compared the Therapists Board rule au-
thorizing therapists to provide a diagnostic assessment using the DSM “as part of their therapeutic
role to help individuals identify their emotional, mental, and behavioral problems when neces-
sary.” 81 TMA conceded that the statutory authorization of evaluations included authorization for
assessments, but it argued that the inclusion in the rule of the adjective diagnostic was a bridge too
far. After looking to both traditional and medical dictionary definitions of the relevant terms to
discern their “common, ordinary meanings . . . within their statutory context”, 82 we concluded that
TMA was “mak[ing] too much of the rule’s use of the word ‘diagnostic.’” 83
78 459 S.W.3d 48, 52 (Tex. 2015) (citing TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (“Undefined terms in a statute are typically given their ordinary meaning, but if a different or more precise definition is apparent from the term’s use in the context of the statute, we apply that meaning.”)).
In re Hall, 286 S.W.3d 925, 929 (Tex. 2009) (orig. proceeding) (citing Tex. Dep’t of Transp. v. Needham, 79
82 S.W.3d 314, 318 (Tex. 2002)).
80 511 S.W.3d at 34 (quoting TEX. OCC. CODE § 502.002(6)).
81 Id. (quoting 22 TEX. ADMIN. CODE § 801.42(13)). 82 Id. at 38.
83 Id. at 37.
18 Critically, we looked to other Therapists Board rules to provide context for the rule that
TMA was challenging. Our conclusion that TMA had not met its burden of demonstrating that the
rule authorizing diagnostic assessments exceeded the statutory scope of practice was based in part
on other rules limiting therapists to providing “services within [their] professional competency”
and requiring referral of a client to another care provider when appropriate. 84
An undercurrent of TMA’s argument in Marriage and Family Therapists was that any act
within the statutory scope of medical practice must necessarily be excluded from the statutory
scope of other healthcare professions. We rejected that line of thinking, explaining that “every act
that a physician may do is not automatically the unlawful practice of medicine when done by a
non-physician, and terminology in one field may overlap with that of another.” 85 This principle is
clear from the text of the MPA, which defines medical practice in the broadest terms possible—
“the diagnosis[] [or] treatment” of any “mental or physical disease or disorder”, “physical deform-
ity”, “or injury” 86—and then exempts from the prohibition against unlawfully practicing medicine
certain nonphysician healthcare providers “engaged strictly in the practice of” their professions as
they are “defined by law”. 87 Thus, the question in a § 2001.038(a) suit for judicial review of an
agency rule regulating nonphysician healthcare providers is not whether any part of the rule au-
thorizes a provider to engage in an activity that also constitutes the practice of medicine. Rather,
the question is whether the plaintiff has overcome the presumption that the rule is valid by showing
84 Id. at 39 (quoting 22 TEX. ADMIN. CODE § 801.44(r)).
85 Id. at 41.
86 TEX. OCC. CODE § 151.002(13).
87 Id. § 151.052.
19 that any part of the rule either “contravenes specific . . . language” of the regulated profession’s
enabling statute or “runs counter to the general objectives of” that statute. 88
The lower courts failed to apply this analysis, even though the court of appeals had the
benefit of our decision in Marriage and Family Therapists and even though the legal principles
we applied there broke no new ground. The trial court weighed evidence—specifically, witness
testimony presenting each side’s view of the appropriate line between chiropractic and medical
neurology—as if it were doing the Board’s work anew. The court’s findings of fact and conclu-
sions of law make it clear that it failed to afford Rule 78.1 a presumption of validity. For example,
the court found that “[t]here is no commonly accepted definition of musculoskeletal system that
includes nerves”—implicitly crediting TMA’s evidence over the Board’s. TMA witnesses testified
that strict anatomical lines delineate one system of the human body from another. 89 Board wit-
nesses testified that chiropractic takes a functional view of the body that does not permit the bio-
mechanical condition of the muscles and bones that comprise the musculoskeletal system to be
evaluated apart from the nerves that animate them. The court of appeals gave a nod to our analysis
in Marriage and Family Therapists but then held that in light of the witness testimony presented
by TMA, “sufficient evidence” supported the trial court’s judgment that Rule 78.1 exceeds the
88 Marriage & Family Therapists, 511 S.W.3d at 33. The third prong of the test—whether the challenged rule “imposes additional burdens, conditions, or restrictions in excess of or inconsistent with” the Act, id.—does not apply here because TMA argues that Rule 78.1 is too broad, not too narrow.
89 The trial court’s findings of fact adopt the view of TMA’s witnesses that the distinct systems of the human body are skeletal, muscular, nervous, cardiovascular, digestive, reproductive, urinary, endocrine, and integumentary (skin).
20 statutory scope of chiropractic. 90 In so doing, the court applied an incorrect standard of review.
The proper question for the court was whether, despite Rule 78.1’s presumption of validity, the
rule contravenes the Act’s specific text or runs counter to its purpose as a matter of law.
With the Board, the Legislature has delegated to a regulated group of practitioners and
public members the responsibility of “clarifying what activities are included within the scope of
the practice of chiropractic and what activities are outside of that scope”, 91 and it has required the
Board in doing so to take measures beyond what is required by the APA to “seek input early in the
rule development process” from the “persons who will be most affected” by it. 92 Judges are experts
in statutory analysis, not in healthcare. To prevent expensive and time-consuming usurpations of
administrative agencies’ policymaking work, the court’s inquiry in a § 2001.038(a) suit challeng-
ing the validity of an agency rule must be limited. The textual analysis we set out in Marriage and
Family Therapists ensures that courts will stay in their lane. To that analysis we now turn.
TMA contends that Rule 78.1(a)’s references to nerves exceed the Act’s scope of chiro-
practic practice. Specifically, the rule’s definition of the statutory phrase musculoskeletal system
includes not only bones, joints, muscles, tendons, and ligaments but also the “associated . . . nerves
that move the body and maintain its form.” 93 And the rule defines the statutory phrase subluxation
complex as a “neuromusculoskeletal condition” that can alter certain “neuro-physiological
90 566 S.W.3d 776, 781 (Tex. App.—Austin 2018) (restating the legal analysis set forth in Marriage & Family Therapists); id. at 785–786 (reviewing the testimony and concluding that “sufficient evidence supports the [trial] court’s findings related to the [Scope of Practice] Rule’s reference to nerves . . . in its definition of ‘musculoskeletal system’ [and] ‘subluxation complex’”); id. at 787 (affirming the trial court’s judgment that the VONT rule is invalid).
91 TEX. OCC. CODE § 201.1525.
92 Id. § 201.1526(b).
93 22 TEX. ADMIN. CODE § 78.1(a)(5).
21 reflections”. 94 TMA argues that these references to nerves authorize chiropractors to diagnose any
neurological condition, which is the practice of medicine.
TMA’s argument echoes its position in Marriage and Family Therapists that a rule per-
mitting therapists to make diagnostic assessments allows them to diagnose any mental disorder.
But here, as was the case there, the rule’s words cannot be read beyond their context. Nothing in
Rule 78.1 suggests that chiropractic practice extends beyond the evaluation and treatment of the
musculoskeletal system. The rule merely acknowledges the reality that chiropractors cannot ignore
the presence and effect of associated nerves that help shape the musculoskeletal system and allow
it to move. The Board’s definition of musculoskeletal system only includes those nerves “associ-
ated” with the muscles, tendons, ligaments, bones, joints, and tissues “that move the body and
maintain its form.” For Rule 78.1 to exceed its proper scope, the rule must contravene the Act’s
specific words or purpose. It does neither. Nothing in the text of either definition gives chiroprac-
tors carte blanche to practice medical neurology, and the Board has rejected the notion that chiro-
practic is so broad.
Though the Act contains some specific exclusions from chiropractic—“incisive or surgical
procedures”, prescribing drugs, and using x-rays or other therapies that expose the body to radia-
tion 95—it certainly cannot be read to include all healthcare that it does not specifically exclude,
and the Board makes no argument to the contrary. Because chiropractic is carved out of the com-
prehensive regulation of the practice of medicine under the MPA, its scope under the Act must be
limited. Rule 78.1 acknowledges and respects the Act’s boundaries.
94 Id. § 78.1(a)(9).
95 TEX. OCC. CODE § 201.002(c).
22 The limited nature of Rule 78.1(a)’s definitions is clear when they are considered alongside
other Board rules. Directly below the definitions of musculoskeletal system and subluxation com-
plex, another section of Rule 78.1 defines chiropractic practice exactly as the Act does, word for
word. 96 The Rule also explains that Board licensees are expected to “provide necessary examina-
tion and evaluation services” to “[d]ifferentiate a patient or condition for which chiropractic treat-
ment is appropriate from a patient or condition that is in need of care from a medical or other class
of provider.” 97 Rule 79, governing “Unprofessional Conduct”, states that “[a] licensee
shall . . . timely refer a patient to another appropriate health care provider for a condition outside
the scope of practice” 98 and that “[a] licensee may not . . . perform or attempt to perform proce-
dures for which the licensee is untrained”. 99 Licensees who engage in unprofessional conduct are
“subject to disciplinary action.” 100 Far from authorizing chiropractors to stray beyond the Act’s
boundaries, the Board’s rules, taken together, seek to ensure that chiropractors remain inside them.
TMA argues that no commonly accepted definition of the musculoskeletal system includes
nerves. But TMA over reads Rule 78.1. The rule merely recognizes the reality that musculoskeletal
dysfunctions cannot be diagnosed or treated without considering associated nerves. Medical neu-
rology is a far broader field. The Board argues that chiropractors must consider the nerves involved
in a musculoskeletal system in order to determine whether referral to a neurologist is required.
TMA characterizes this view as functional and argues that it ignores the fact that body systems are
96 22 TEX. ADMIN. CODE § 78.1(b)(1).
97 Id. § 78.1(c)(1).
98 Id. § 79.2(a) (emphasis added).
99 Id. § 79.2(b) (emphasis added).
100 Id. § 79.2(c).
23 separate. But it is not for the judiciary to decide between these competing views. That decision
was the Board’s, and it could reasonably consider neural involvement in the musculoskeletal sys-
tem in defining the scope of chiropractic. TMA argues that the danger is that a chiropractor will
not make a referral to a neurologist when one is required. But the answer to TMA’s concern is in
Rule 79, which provides for professional discipline if that were to occur.
For all of these reasons, we conclude that TMA “makes too much” of the references to
nerves in the Board’s definitions of musculoskeletal system and subluxation complex. 101 TMA has
not overcome the definitions’ presumption of validity by demonstrating that they contravene spe-
cific language in the Act or run counter to the Act’s objectives. 102
D
TMA also challenges Rule 78.1(c)(3)(B)’s authorization for chiropractors who have com-
pleted specialized training to perform VONT. The technical language of the rule does not aid our
statutory analysis. The parties describe VONT as a test that measures a patient’s eye movements
with a camera or through electrodes, and they agree that it does not fall within any category of
procedure that the Legislature has expressly excluded from the scope of chiropractic—VONT is
not “incisive or surgical”; it does not require “the prescription of controlled substances”; and it
does not “use . . . x-ray therapy” or otherwise “expose[] the body to radioactive materials.” 103 TMA
presented evidence in the trial court that VONT is a neurological test that a medical doctor may
use to diagnose a problem of the brain, inner ear, or eyes, none of which is a part of the spine or
101 Marriage & Family Therapists, 511 S.W.3d at 37.
102 See id. at 34.
103 TEX. OCC. CODE § 201.002(c).
24 musculoskeletal system. Therefore, TMA argues, it exceeds the statutory scope of chiropractic for
a chiropractor to perform VONT.
But the Board also presented evidence that VONT can be used to facilitate chiropractic
treatment. One chiropractor witness, Frederick Carrick, D.O., testified by deposition that because
spinal joints move reflexively opposite the direction of eye movements, VONT can “tell[] you the
integrity of spinal musculature in reaction reflexogenically to an environmental perturbation” and
“can be indispensable in [demonstrating] what side of the spine to treat”. 104 The Board explains
that a chiropractor can also use VONT to rule out nonchiropractic causes of certain disorders,
which can help the chiropractor to determine whether chiropractic treatment is appropriate or
whether the patient should be referred to another healthcare provider. The Board gives the example
of a patient who comes to a chiropractor with dizziness, a common occurrence. Dizziness has
numerous possible causes, many of which are outside the scope of chiropractic. But one possible
cause is cervical vertigo—dizziness arising from head-and-neck misalignment, often the result of
a sports injury or car accident—which can be treated with manual manipulation. The Board pre-
sented evidence that a negative VONT test can help to confirm a diagnosis of cervical vertigo by
ruling out a problem in the brain, inner ear, or eyes, a process known as making a differential
diagnosis.
Though the dissent agrees that Rule 78.1’s references to nerves in defining the musculo-
skeletal system and the subluxation complex properly “clarify the Legislature’s scope-of-practice
104 Dr. Carrick is licensed in New Hampshire and has never practiced in Texas. In fact, it appears that VONT is not widely used by Texas chiropractors. TCA maintains that since the Board’s adoption in 2010 of the rule approving VONT’s use, only two chiropractors in Texas have jumped through the regulatory hoops to receive Board authoriza- tion to use it.
25 limitations”, 105 it argues that the rule’s authorization of specially trained chiropractors to perform
VONT exceeds these limitations. However, a reading of all the Board’s rules together makes it
clear that a chiropractor’s proper use of VONT is not for treating a neurological condition, which
is certainly outside the scope of chiropractic, but rather for the limited purpose of determining
whether and how to treat a patient’s musculoskeletal system. The Legislature has authorized chi-
ropractors “to diagnose . . . the biomechanical condition of the spine and musculoskeletal sys-
tem”. 106 In Rule 78.1, which is presumptively valid, the Board has set out how a VONT test can be
used to perform that diagnosis without exceeding the statutory scope of chiropractic. The dissent
dramatically concludes that with the Rule’s limited authorization of VONT, “limitations on chiro-
practic practice lose all meaning” and “[a] chiropractor’s practice becomes coextensive with a
medical doctor’s practice”. 107 But far from equating chiropractors and physicians, the Board’s rules
in fact carefully observe the statutory boundary between the two professions.
The dissent also echoes TMA’s argument that the Act does not permit chiropractors to
make differential diagnoses by ruling out possible neurological causes of a patient’s dysfunction.
The dissent says that “[t]o ‘rule out’ a neurological condition based on a neurological examination
is to say, affirmatively, that it is not a cause of the patient’s symptoms.” 108 The accuracy of this
characterization is questionable. A more realistic explanation of differential diagnosis is that it is
the process every healthcare provider goes through when assessing a patient’s symptoms to deter-
mine whether it is appropriate to treat the patient or refer the patient elsewhere. An unchallenged
105 Post at 6. 106 TEX. OCC. CODE § 201.002(b)(1). 107 Post at 8. 108 Id. at 9.
26 Board rule expressly addresses this process by requiring chiropractors to refer patients to other
healthcare providers when appropriate. 109 Yet the dissent would not allow this routine process to
ever take place. The way the dissent sees it, any time a patient goes to a chiropractor with a gen-
eralized problem like dizziness that could potentially have a cause outside the scope of chiroprac-
tic, the chiropractor must immediately stop treatment and refer the patient to a medical doctor.
There is no textual support for this argument in the Act.
Simply put, a healthcare provider cannot diagnose a problem without ruling out other po-
tential causes of the problem. In other words, making a differential diagnosis is an unavoidable
part of making a diagnosis. Virtually any problem that a chiropractor treats could potentially have
a nonchiropractic source. Accepting the dissent’s position would effectively read into the Act a
requirement that patients obtain a referral for chiropractic treatment when the Legislature has not
imposed one.
In sum, the VONT-authorization rule is presumptively valid, 110 no specific language in the
Act forbids chiropractors from performing VONT, and the Board has articulated how a chiroprac-
tor might use the test “to diagnose, analyze, examine, or evaluate the biomechanical condition of
the spine and musculoskeletal system”. 111 Because a § 2001.038(a) suit challenges the facial va-
lidity of an agency rule, that must be the end of the inquiry. The court of appeals reasoned that
“[s]imply because [VONT] might under some circumstances be useful does not require that chi-
ropractors be able to perform the test”. 112 Whether VONT should be used by chiropractors is a
109 22 TEX. ADMIN. CODE § 79.2(a)(5). 110 Tex. State Bd. of Exam’rs of Marriage & Family Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28, 33 (Tex. 2017). 111 TEX. OCC. CODE § 201.002(b)(1). 112 566 S.W.3d 776, 787 (Tex. App.—Austin 2018).
27 policy judgment for the Legislature and the Board, not for the courts. 113 The sole question for courts
is whether the text or objectives of the Act forbid chiropractors from using VONT. 114 We hold that
they do not.
* * * * *
Applying the proper standard of review, we conclude that TMA has not carried its burden
of demonstrating that the challenged provisions of Rule 78.1 contravene the specific text or the
objectives of the Act. Accordingly, we reverse the judgment of the court of appeals in part and
render judgment declaring that the challenged provisions are valid.
Nathan L. Hecht Chief Justice
Opinion delivered: January 29, 2021
113 Marriage & Family Therapists, 511 S.W.3d at 33 (“[W]e must decide this case based on the relevant Texas statutes, not on whether MFTs are qualified to make DSM diagnoses or whether the DSM or other states’ laws allow them to.”).
114 See id.