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
5