Texas Association of Acupuncture and Oriental Medicine v. Texas Board of Chiropractic Examiners And Patricia Gilbert, Executive Director in Her Official Capacity

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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. DAVIS Deputy Attorney General for Civil Litigation 5 DAVID A. TALBOT, JR. Chief, Administrative Law Division /s/ Joe H. Thrash JOE H. THRASH Bar No. 19995500 Assistant Attorney General Administrative Law Division P. O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 475-4203 Facsimile: (512) 320-0167 Joe.thrash@texasattorneygeneral.gov ATTORNEYS FOR APPELLEES CERTIFICATE OF SERVICE A true and correct copy of the foregoing Appellees’ Brief was served via e serve and/or e-mail on this the 5th day of November, 2015 to the following: Craig T. Enoch Via electronic service and/or email ENOCH KEVER PLLC 600 Congress Avenue Suite 2800 Austin, Texas 78701 cenoch@enochkever.com Melissa A. Lorber mlorber@enochkever.com Shelby O’Brien sobrien@enochkever.com Telephone: (512) 615-1200 Facsimile: (512) 615-1198 Attorneys for Appellant Texas Association of Acupuncture and Oriental Medicine /s/ Joe H. Thrash JOE H. THRASH Assistant Attorney General 6