Texas State Board of Veterinary Medical Examiners, and Nicole Oria, in Her Official Capacity as Executive Director// Ellen Jefferson, D.V.M. v. Ellen Jefferson, D.V.M.// Texas State Board of Veterinary Medical Examiners, and Nicole Oria, in Her Official Capacity as Executive Director

ACCEPTED
03-14-00774-CV
7701600
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/5/2015 1:37:42 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00774-CV
____________________________________________________
FILED IN
3rd COURT OF APPEALS
IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
AT AUSTIN, TEXAS 11/5/2015 1:37:42 PM
____________________________________________________
JEFFREY D. KYLE
Clerk
TEXAS STATE BOARD OF VETERINARY MEDICAL EXAMINERS,
and NICOLE ORIA, in her Official Capacity as Executive Director
Appellants/Cross-Appellees,
v.

ELLEN JEFFERSON, D.V.M.,
Appellee/Cross-Appellant.

On Appeal from the 127th Judicial District Court of Travis County, Texas
Cause No. D-1-GN-14-000287
The Honorable Gisela D. Triana presiding
__________________________________________________________

REPLY BRIEF OF APPELLANTS/CROSS APPELLEES
___________________________________________________________

KEN PAXTON
Attorney General of Texas Ted A. Ross
Assistant Attorney General
CHARLES E. ROY State Bar No. 24008890
First Assistant Attorney General OFFICE OF THE TEXAS ATTORNEY
GENERAL
JAMES E. DAVIS ADMINISTRATIVE LAW DIVISION
Deputy Attorney General for Civil P. O. Box 12548
Litigation Austin, Texas 78711-2548
Telephone: (512) 475-4191
DAVID A. TALBOT, JR. Facsimile: (512) 457-4674
Division Chief, Administrative Law ted.ross@texasattorneygeneral.gov
Division Attorneys for Appellants/Cross-
Appellees Texas State Board of
Veterinary Medical Examiners, and
November 5, 2015 Nicole Oria
 TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES ................................................................................... iii

INTRODUCTION .....................................................................................................2

REPLY POINT 1: BOARD RULE 573.72 WAS RECENTLY AMENDED,
RENDERING THE APPEAL OF THAT RULE MOOT
AS OF ITS EFFECTIVE DATE. ..........................................3

REPLY POINT 2: DR. JEFFERSON HAS EFFECTIVELY ADMITTED
THAT THE DEFERENCE STANDARD APPLIES TO
THE BOARD’S INTERPRETATION OF THE TERM
“DESIGNATED CARETAKER” (RULE 573.80(2)) ..........5

CONCLUSION AND PRAYER ...............................................................................8

CERTIFICATE OF COMPLIANCE .......................................................................10

CERTIFICATE OF SERVICE ................................................................................10

ii
 TABLE OF AUTHORITIES

Cases
Bexar Metro. Water Dist. v. City of Bulverde, 234 S.W.3d 126
(Tex. App.—Austin 2007, no pet.) .........................................................................5

Tex. Ass’n of Psychological Assoc. v. Tex. State Bd. of Examn’rs
of Psychologists, 439 S.W.3d 597 (Tex. App.—Austin 2014, no pet.) ..................8

TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011)..................7

Statutes

Tex. Occ. Code § 801.004 .........................................................................................4

Tex. Occ. Code § 801.004(1) .................................................................................2, 3

Rules

22 Tex. Admin. Code § 573.72 ......................................................................... 3, 4, 5

22 Tex. Admin. Code 573.80(2) ................................................................... 2, 3, 5, 8

iii
 NO. 03-14-00774-CV
____________________________________________________

IN THE THIRD COURT OF APPEALS
AT AUSTIN, TEXAS
____________________________________________________

TEXAS STATE BOARD OF VETERINARY MEDICAL EXAMINERS,
and NICOLE ORIA, in her Official Capacity as Executive Director
Appellants/Cross-Appellees,
v.

ELLEN JEFFERSON, D.V.M.,
Appellee/Cross-Appellant.
____________________________________________________
On Appeal from the 127th Judicial District Court of Travis County, Texas
Cause No. D-1-GN-14-000287
The Honorable Gisela D. Triana presiding
__________________________________________________________

REPLY BRIEF OF APPELLANTS/CROSS APPELLEES
___________________________________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

Appellants/Cross-Appellees, the Texas State Board of Veterinary Medical

Examiners and Nicole Oria, in Her Official Capacity as Executive Director

(hereinafter collective referred to as the “Board” unless otherwise designated), by

and through the Office of the Attorney General of Texas and the undersigned

Assistant Attorney General, submit the following reply brief in the captioned appeal.

This brief addresses the arguments in Dr. Jefferson’s brief regarding the

district court’s invalidation of two Board rules.

1
 INTRODUCTION

There are a number of incorrect statements in Dr. Jefferson’s brief that need

to be addressed before turning to her specific argument regarding the two Board

rules in question. Dr. Jefferson is patently incorrect in stating that the Board has

“acknowledge[ed] . . . that Board Rule 573.80(2) deprives any owner, her employee,

or her designee the right to treat or care for an animal free of (Board) regulation.”

Jefferson Br. at 24. She is also inconsistent (and wrong) in arguing that the Board

“[f]or decades has had no authority to regulate ‘the treatment and care of an animal

in any manner by the owner of the animal (etc.),” even if the ownership, etc. is

established with the intent to violate the Act. Id. at 15. Tex. Occ. Code § 801.004(1).

To the contrary, the Board has never ceded its jurisdiction to determine in the first

instance whether or not a vet is in fact exempt under the Act. This includes

determining whether the ownership, etc. positions were established with the intent

to evade the Act.1

1
The Board’s subject matter jurisdiction in this case is the subject of Dr. Jefferson’s cross-appeal.
As will be shown in the Board’s Suggestion of Mootness, that appeal is now moot because the
Board has dismissed with prejudice the administrative complaint and contested case proceeding.
Further, Dr. Jefferson’s argument in her reply brief in the jurisdictional appeal that the Board has
somehow “conceded” that the trial court erred in dismissing her UDJA claims for failure to exhaust
is patently wrong. See Jefferson Reply Br. at 2-3. The Board didn’t concede anything. Aside
from the fact that subject matter jurisdiction cannot be waived or conferred by the parties, it
remains that the trial court lacked jurisdiction whether or not exhaustion was a proper basis for
dismissal. See Board Brief (filed on September 11, 2015) at 11-23 and 25-29.

2
 Dr. Jefferson’s arguments regarding the two rules at issue are either moot

(Rule 573.72) or inconsistent and wrong (Rule 573.80(2)).

REPLY POINT 1: BOARD RULE 573.72 WAS RECENTLY AMENDED,
RENDERING THE APPEAL OF THAT RULE MOOT
AS OF ITS EFFECTIVE DATE.

Board Rule 573.72 addresses the employment by, or contractual services to, a

non profit or municipal corporation and the statutory exemption (“Exemption”) in

Act. Tex. Occ. Code § 801.004(1); 22 Tex. Admin. Code § 573.72. Dr. Jefferson

contends that that the district court was correct in determining that the rule violated

the Exemption, which provides that the Act does not apply to “(1) the treatment or

care of an animal in any manner by the owner of the animal, an employee of the

owner, or a designated caretaker of the animal, unless the ownership, employment,

or designation is established with the intent to violate this chapter.” Tex. Occ. Code

§ 801.004(1).”

Rule 573.72 was recently amended with the following changes noted by bold

italics:

(a) A nonprofit or municipal corporation may employ or contract with
a veterinarian to provide veterinary services in connection with
sheltering, sterilization, vaccination, or other medical care and
treatment of animals.

(b) Employment by or contractual service to a nonprofit or municipal
corporation does not alone exempt the veterinarian from any of the
provisions of the Veterinary Licensing Act or the Board’s rules.

3
 (c) Veterinarians employed by, or contracted to, nonprofit or municipal
corporations shall be liable for any violations of the Act or rules
occurring as a result of the practice of veterinary medicine or any
veterinary services provided by the nonprofit or municipal corporation,
including those occurring due to the acts or omissions of non-licensed
employees of, or volunteers for, the nonprofit or municipal corporation,
unless otherwise exempt from the Veterinary License Act under
§ 801.004.

See Exhibit A (emphasis added).

The Board explained in the preamble to the rule amendment that:

The amendment clarifies current interpretation of this rule. If an
individual is exempt from the Act and rules of the Board, then, clearly,
this rule would not apply to that individual. However, many nonprofit
and municipal corporations care for and treat animals that are owned by
the public. This amendment clarifies the long held interpretation that
this rule only applies if the exemption does not otherwise apply.

Exhibit B.

The foregoing amendment was filed with the Office of the Secretary of State

on November 2, 2015, will appear in the November 13, 2015 issue, and will be

effective November 22, 2015. Exhibit C. Dr. Jefferson did not submit any comments

to the proposed amendment.

It is therefore clear that Rule 573.72 does not, as Dr. Jefferson contends,

“improperly extend[s] liability to veterinarians employed by nonprofit or municipal

corporations for the actions of others, even though those persons are themselves

exempt from the Act as employees or designees.” Jefferson Br. at 5. It is plain from

4
the amendments that the rule now expressly acknowledges the applicability of the

Exemption.

The Board therefore suggests that its challenge to the district court’s

invalidation of Rule 573.72 will be moot as of November 22, 2015, and it therefore

withdraws its appeal as to that rule (only) as of the effective date of the amendment.

See Bexar Metro. Water Dist. v. City of Bulverde, 234 S.W.3d 126, 131 (Tex. App.—

Austin 2007, no pet.) (“A case becomes moot when: (1) it appears that one seeks to

obtain a judgment on some controversy, when in reality none exists; or (2) when one

seeks a judgment on some matter which, when rendered for any reason, cannot have

any practical legal effect on a then-existing controversy.”).

REPLY POINT 2: DR. JEFFERSON HAS EFFECTIVELY ADMITTED
THAT THE DEFERENCE STANDARD APPLIES TO
THE BOARD’S INTERPRETATION OF THE TERM
“DESIGNATED CARETAKER” (RULE 573.80(2)).

The remaining issue in this appeal is the validity of Board Rule 573.80(2).

Dr. Jefferson has effectively admitted in her brief that the deference standard in fact

does apply to the Board’s interpretation and definition of the term “designated

caretaker” in the Exemption. After arguing that the term is unambiguous so as to

render the deference standard inapplicable (see, e.g., Jefferson Br. at 10-11 and

26-27), she then reverses herself and states that the Board’s “deconstruction” “fails

to acknowledge that the term has a unique context in the Act.” Jefferson Br. at 27

(emphasis added). She further claims that the term “derives its essence by reference
5
to the property rights of an animal owner.” Id. (emphasis added). She also states

that the “common dictionary meaning of ‘caretaker’ also carries an element of

‘substitute authority.’” Id. (emphasis added). She further contends that the

“common definition” of designated caretaker . . . requires something akin to agency

or dominion,” as opposed to the “casual handing off of an animal for the performance

of services (even veterinary services).” Id. at 28. These statements are not only

plainly inconsistent with Dr. Jefferson’s initial argument that “designated caretaker”

is ambiguous, they in fact demonstrate that the term in fact does contain an element

of ambiguity which, in turn, requires the Board to interpret and apply it in the context

of the overall statutory scheme in the Act. For instance, the term may or may not

contain an element of “substitute authority,” depending on the scope and nature of

the authority designated. Similarly, whether or not the term requires “agency or

dominion,” or the extent and nature of such, is subject to interpretation. A caretaker

may or may not have full authority to do what is delegated. The definition in Rule

573.80(2) contains a requirement that a designated caretaker be following the

instructions of a veterinarian and be subject to the appropriate level of supervision

per Board rules in order to avoid the presumption. 22 Tex. Admin. Code §

573.80(2). Dr. Jefferson claims that the designation of a caretaker automatically

removes the designee from the scope of the Act. The Board, on the other hand,

believes that a designee must be subject to the requirement that a caretaker not be

6
intending to violate the Act. That comports with the “intent to violate” language in

the statute. Tex. Occ. Code § 801.004(1). In this case, it was reasonable for the

Board to interpret the term so as ensure that persons practicing veterinary medicine

without a license can’t evade responsibility by simply claiming that he or she is a

“designated caretaker.” In contrast, what Dr. Jefferson calls the “common dictionary

meaning” of “designated caretaker” would simply be anyone who formally or

informally is “designated” to “care” for an animal. That would vitiate the entire Act

and would create an absurd result which the legislature never intended. Preventing

someone from being a “designated caretaker” after an animal has a condition furthers

the purpose of the Act and comports with the legislature’s intent to protect the public

from the unsafe practice of veterinary medicine by prohibiting persons from creating

a status or position as a subterfuge. It was thus reasonable for the Board, under its

rulemaking authority, to define the scope of the term so as to protect the public from

the unsafe practice of veterinary medicine. The Board must be afforded some level

of deference in determining how to interpret and apply that language.

The Texas Supreme Court has applied the deference standard “[i]f there is

vagueness, ambiguity, or room for policy interpretation in [the] statute or

regulation.” TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex.

2011) (emphasis added). “Ambiguity” in a statute or a statutory term has been held

to mean that “there is more than one reasonable interpretation of it.” Tex. Ass’n of

7
Psychological Assoc. v. Tex. State Bd. of Examn’rs of Psychologists, 439 S.W.3d

597, 603 (Tex. App.—Austin 2014, no pet.). As demonstrated above, there is in fact

more than one reasonable interpretation of “designated caretaker, and there is

certainly “room for policy interpretation.”

Rule 573.80(2) is also entirely consistent with the Ownership Exemption and

the Act as a whole.

CONCLUSION AND PRAYER

For the reasons discussed above, the Board respectfully requests that this

Court reverse that part of the district court’s judgment which invalidates Board Rule

573.80(2).

Dated: November 5, 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

8
/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) 457-4674
Email: ted.ross@texasattorneygeneral.gov
Attorneys for Appellants/Cross-Appellees Texas
State Board of Veterinary Medical Examiners, and
Nicole Oria

9
 CERTIFICATE OF COMPLIANCE

I hereby certify compliance with Texas Rules of Appellate Procedure 9 and
that there are 1,753 words in this document. Microsoft Word was used to prepare
this filing and calculate the number of words in it.

/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 5th day of November 2015:

David F. Brown Via: Electronic Service and/or e-mail
dbrown@ebblaw.com
David P. Blanke
dblanke@ebblaw.com
Zeke DeRose III
zderose@ebblaw.com
111 Congress Avenue, 28th Floor
Austin, Texas 78701

Ryan Clinton
rdclinton@dgclaw.com
Davis, Gerald & Cremer, P.C.
111 Congress Avenue, Suite 1660
Austin, Texas 78701
Attorneys for Ellen Jefferson, D.V.M.

/s/ Ted A. Ross
Ted A. Ross
Assistant Attorney General

10
EXHIBIT A
 Texas Register
TITLE 22 EXAMINING BOARDS
PART 24 TEXAS BOARD OF VETERINARY MEDICAL EXAMINERS
CHAPTER 573 RULES OF PROFESSIONAL CONDUCT
SUBCHAPTER G OTHER PROVISIONS
RULE §573.72 Employment by Nonprofit or Municipal Corporations
ISSUE 09/11/2015
ACTION Proposed

(a)A nonprotit or municipal corporation may employ or contract with a veterinarian to provide veterinary
services in connection with sheltering, sterilization, vaccination, or other medical care and treatment ot animals.
(b)Employment by or contractual service to a nonprotit or municipal corporation does not alone exempt the
veterinarian lrom aw oi the provisions ot the Veterinary Licensing Act or the Board's rules.
(c)Veterinarians employed by, or contracted to, nonprolit or municipal corporations shall be liable tor any
violations ot the Act or rules occurring as a result ol the practice ot veterinary medicine or any veterinary
services provided by the nonprotit or municipal corporation, including those occurring due to the acts or
omissions ol non-licensed employees ot, or volunteers tor, the nonprotit or municipal corporation, ,m!ess
otherw, ise exempt-tr-om tlae •L••xle.-• •O-I.OOA.

The agency Certifies that legal counsel has reviewed the proposal and tound it to be within the state agency's
legal authority to adopt.

Filed with the Office ot the Secretary ol State on August 31, 2015

TRD-201503473
Loris Jones

Executive Assistant
Texas Board ot Veterinary Medical Examiners

Earliest possible date ot adoption: October 11, 2015

For turther inlormation, please call: (512) 305-7563
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