Dr. Amber Brooks, D.C. v. Texas Medical Board And, in Their Official Capacities Only, Mari Robinson, Executive Director Irvin Zeitler, Jr., D.O., Chair of the Disciplinary Panel And Paulette Southard, Member of the Disciplinary Panel

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ACCEPTED 03-14-00239-CV 4308282 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/27/2015 9:18:01 AM JEFFREY D. KYLE CLERK NO. 03-14-00239-CV ____________________________________________________ FILED IN 3rd COURT OF APPEALS IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS AT AUSTIN, TEXAS 2/27/2015 9:18:01 AM ____________________________________________________ JEFFREY D. KYLE Clerk DR. AMBER BROOKS, D.C., Appellant, v. TEXAS MEDICAL BOARD, et al., Appellees. ____________________________________________________ On Appeal from the 353rd Judicial District Court of Travis County, Texas The honorable Timothy Sulak presiding Cause No. D-1-GN-13-003617 ____________________________________________________ APPELLEES’ UNOPPOSED MOTION FOR LEAVE TO FILE POST-SUBMISSION BRIEF ____________________________________________________ TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS: Pursuant to Tex. R. App. P. 38.7 and the Clerk’s notice to the parties dated February 18 2015, Appellees; the Texas Medical Board and, in their official capacities only, Mari Robinson (Executive Director), Irvin E. Zeitler, Jr., D.O., and Paulette Southard; respectfully request the Court to grant them leave to file the supplemental brief attached hereto as Exhibit A. Dated: February 27, 2015 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. Division Chief, Administrative Law Division /s/ Ted A. Ross Ted A. Ross Assistant Attorney General State Bar No. 24008890 OFFICE OF THE TEXAS ATTORNEY GENERAL ADMINISTRATIVE LAW DIVISION P. O. Box 12548 Austin, Texas 78711-2548 Telephone: (512) 475-4191 Facsimile: (512) 320-0167 Email: ted.ross@texasattorneygeneral.gov Attorneys for Appellees Texas Medical Board, et al. 2 CERTIFICATE OF CONFERENCE Pursuant to Tex. R. App. 10.1(5), the undersigned certifies that he conferred with counsel for Appellant regarding the foregoing motion and was advised that he does not object. /s/ Ted A. Ross Ted A. Ross Assistant Attorney General CERTIFICATE OF SERVICE I hereby certify that, in compliance with Rule 9.5 of the Texas Rules of Appellate Procedure, a true and correct copy of the above and foregoing document has been served on the following on this the 27th day of February 2015: Robert D. Simpson, Of Counsel Via: Electronic Service and email Andre D’Souza Leichter Law Firm, PC 1602 E. 7th Street Austin, Texas 78702 Email: robert@leichterlaw.com andre@leichterlaw.com /s/ Ted A. Ross Ted A. Ross Assistant Attorney General 3 EXHIBIT A NO. 03-14-00239-CV ____________________________________________________ IN THE THIRD COURT OF APPEALS AT AUSTIN, TEXAS ____________________________________________________ DR. AMBER BROOKS, D.C., Appellant, v. TEXAS MEDICAL BOARD, et al., Appellees. ____________________________________________________ On Appeal from the 353rd Judicial District Court of Travis County, Texas The honorable Timothy Sulak presiding Cause No. D-1-GN-13-003617 ____________________________________________________ APPELLEES’ SUPPLEMENTAL BRIEF ___________________________________________________ TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS: Appellees; the Texas Medical Board and, in their official capacities only, Mari Robinson (Executive Director), Irvin E. Zeitler, Jr., D.O., and Paulette Southard (hereinafter collectively referred to as the “TMB”) respectfully submit the following supplemental brief in the captioned appeal. 1. The TMB submits this supplemental brief for the purpose of clarifying two points raised in the reply brief filed by Appellant, Amber Brooks (“Brooks”) on August 11, 2014. 2. On page 19 of her reply brief, Brooks states that the TMB referred to Tex. Gov’t Code § 2001.052 in arguing that cease and desist proceedings are not subject to the Texas Administrative Procedure Act (“APA”) in the first place. See the TMB’s brief at 14. The TMB intended to refer to Tex. Gov’t Code § 2001.054, not .052. (The TMB clearly referred to and discussed § 2001.054 on the same page of its brief to which Brooks refers). 3. On page 21 of her reply brief, Brooks states that the TMB cited Tex. Occ. Code § 151.504(d) in support of its contention that the Veterinary Board’s statute specifically provides that its cease and desist proceedings are subject to the APA. See the TMB’s brief at 16. The TMB intended to refer to Veterinary Board rule 575.40(d)(2), which specifically provides that, in cease and desist proceedings, “the Board may refer the complaint and investigative file to the State Office of Administrative Hearings for a contested case proceeding (thus subjecting Veterinary Board cease and desist proceedings to APA procedures).” 22 Tex. Admin. Code § 575.40(d)(2). Compare TMB Rule 187.83(e), outlining detailed procedures for cease and desist proceedings before a TMB panel (and not the contested case procedures under the APA). 22 Tex. Admin. Code § 187.83(e). Dated: February 27, 2015 2 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. Division Chief, Administrative Law Division /s/ Ted A. Ross Ted A. Ross Assistant Attorney General State Bar No. 24008890 OFFICE OF THE TEXAS ATTORNEY GENERAL ADMINISTRATIVE LAW DIVISION P. O. Box 12548 Austin, Texas 78711-2548 Telephone: (512) 475-4191 Facsimile: (512) 320-0167 Email: ted.ross@texasattorneygeneral.gov Attorneys for Appellees Texas Medical Board, et al. 3 CERTIFICATE OF SERVICE I hereby certify that, in compliance with Rule 9.5 of the Texas Rules of Appellate Procedure, a true and correct copy of the above and foregoing document has been served on the following on this the 27th day of February 2015: Robert D. Simpson, Of Counsel Via: Electronic Service and email Andre D’Souza Leichter Law Firm, PC 1602 E. 7th Street Austin, Texas 78702 Email: robert@leichterlaw.com andre@leichterlaw.com /s/ Ted A. Ross Ted A. Ross Assistant Attorney General 4