ACCEPTED
03-15-00262-CV
7895959
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/18/2015 6:16:46 PM
JEFFREY D. KYLE
CLERK
No. 3-15-00262-CV FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
In the Court of Appeals 11/18/2015 6:16:46 PM
Third District of Texas — 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 201st District Court, Travis County, Texas
Cause No. D-1-GN-14-000355
REPLY BRIEF OF APPELLANT
TEXAS ASSOCIATION OF ACUPUNCTURE
AND ORIENTAL MEDICINE
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
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
INDEX OF AUTHORITIES.................................................................................... iii
INTRODUCTION .....................................................................................................1
ARGUMENT .............................................................................................................2
I. Because acupuncture is outside the statutory scope of chiropractic, the
Chiropractic Board’s rules authorizing chiropractors to practice
acupuncture without a license from the Acupuncture Board are
invalid. .............................................................................................................2
A. A two-word addition to the definition of “acupuncture” in the
Acupuncture Chapter did not create an exemption for
chiropractors from the licensing requirements of the
Acupuncture Chapter............................................................................. 2
B. If the Legislature “indirectly” attempted to exempt
chiropractors from the licensing requirements of the
Acupuncture Chapter, the attempt failed. ............................................. 5
C. Even if the amendment to the Acupuncture Chapter’s definition
of acupuncture resulted in surplusage, the Court should decline
to adopt the Chiropractic Board’s interpretation because it
contravenes the express language of the Chiropractic Chapter
and leads to an absurd result. ................................................................ 8
D. Though there is sometimes overlap among activities two
regulated professions can perform, an amendment to the
definition of acupuncture in the Acupuncture Chapter did not
result in chiropractors being authorized to engage in the entirely
separate profession of acupuncture. ....................................................11
E. The cases relied on by the Chiropractic Board do not support
that the two-word amendment to the definition of acupuncture
created an exemption from the requirements of the Acupuncture
Chapter for chiropractors. ...................................................................13
F. Legislative history is irrelevant to unambiguous statutes and,
even if considered, does not support the Chiropractic Board’s
position. ...............................................................................................18
i
G. The Court should decline to read the Acupuncture Chapter’s
scope of practice and the Chiropractic Chapter’s scope of
practice in pari materia. .......................................................................21
H. The Acupuncture Association’s statutory construction argument
is not dependent on factual safety issues.............................................25
II. The statutory scheme purportedly authorizing chiropractors to practice
acupuncture with significantly less education and training in
acupuncture than licensed acupuncturists violates Texas Constitution,
Article XVI, Section 31. ................................................................................27
III. The legislation that purportedly authorized chiropractors to practice
acupuncture violates the one-subject rule in Texas Constitution,
Article III, Section 35(a). ...............................................................................30
IV. The Chiropractic Board has waived any argument regarding its laches
defense. ..........................................................................................................32
PRAYER ..................................................................................................................33
CERTIFICATE OF COMPLIANCE .......................................................................35
CERTIFICATE OF SERVICE ................................................................................35
ii
INDEX OF AUTHORITIES
CASES
Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson
209 S.W.3d 644 (Tex. 2006) ..............................................................................18
Andrews v. Ballard
498 F. Supp. 1038 (S.D. Tex. 1980) .............................................................25, 29
Brooks v. Tex. Med. Bd.
No. 03-14-00239-CV, 2015 WL 3827327 (Tex. App.—Austin
June 18, 2015, no pet.) ........................................................................................25
Brookshire v. Houston Indep. Sch. Dist.
508 S.W.2d 675 (Tex. Civ. App.—Houston [14th Dist.] 1974, no writ) ........... 24
Chickasaw Nation v. U.S.
534 U.S. 84 (2001) ................................................................................................9
City of Houston v. Clark
197 S.W.3d 314 (Tex. 2006) ..............................................................................26
City of Rockwall v. Hughes
246 S.W.3d 621 (Tex. 2008) ..............................................................................10
City of Round Rock v. Rodriguez
399 S.W.3d 130 (Tex. 2013) ..............................................................................22
City of San Antonio v. Tex. Att’y Gen.
851 S.W.2d 946 (Tex. App.—Austin 1993, writ denied)...................................21
Coker v. Coker
650 S.W.2d 391 (Tex. 1983) ..............................................................................27
Commonwealth Dep’t of State v. Schatzberg
371 A.2d 544 (Pa. Commw. Ct. 1977) ................................................................. 5
DLB Architects, P.C. v. Weaver
305 S.W.3d 407 (Tex. App―Dallas 2010, pet denied)......................................23
Entergy Gulf States, Inc. v. Summers
282 S.W.3d 433 (Tex. 2009) ..........................................................................3, 18
iii
Fed. Deposit Ins. Corp. v. Lenk
361 S.W.3d 602 (Tex. 2012) ..............................................................................32
Foster v. City of El Paso
396 S.W.3d 244 (Tex. App.—El Paso 2013, no pet.) ........................................33
Greater Houston P’ship v. Paxton
468 S.W.3d 51 (Tex. 2015).............................................................................9, 22
Harlingen Family Dentistry, P.C. v. Tex. Health & Human Servs. Comm’n
452 S.W.3d 479 (Tex. App.—Austin Nov. 25, 2014, pet. dism’d) ....................14
In re Blair
408 S.W.3d 843 (Tex. 2013) ........................................................................17, 26
In re Doe 3
19 S.W.3d 300 (Tex. 2000).................................................................................23
In re JMR
149 S.W.3d 289 (Tex. App.—Austin 2004, no pet.) ..........................................24
Jessen Assocs., Inc. v. Bullock
531 S.W.2d 593 (Tex. 1976) ..............................................................................32
Kallinen v. City of Houston
462 S.W.3d 25 (Tex. 2015)...................................................................................8
Kia Motors Corp. v. Ruiz
432 S.W.3d 865 (Tex. 2014) ................................................................................ 5
King v. Burwell
135 S. Ct. 2480 (2015) ..........................................................................................9
Lamie v. U.S. Trustee
540 U.S. 526 (2004) ..............................................................................................9
Lenhad v. Butler
745 S.W.2d 101 (Tex. App.—Fort Worth 1988, writ denied) ...........................23
Matagorda Cnty. Appraisal Dist. v. Coastal Liquids Partners, L.P.
165 S.W.3d 329 (Tex. 2005) ..............................................................................24
Mid-Century Ins. Co. of Tex. v. Kidd
997 S.W.2d 265 (Tex. 1999) ................................................................................ 4
iv
Molinet v. Kimbrell
356 S.W.3d 407 (Tex. 2011) ..............................................................................23
Nat’l Media Corp. v. City of Austin
No. 03-12-00188-CV, 2014 WL 4364815 (Tex. App.—Austin
Aug. 27, 2014, no pet.) .......................................................................................24
Neasbitt v. Warren
22 S.W.3d 107 (Tex. App.—Fort Worth 2000, no pet.).....................................23
Ojo v. Farmers Grp., Inc.
356 S.W.3d 421 (Tex. 2011) ..............................................................................19
Robinson v. Crown Cork & Seal Co., Inc.
335 S.W.3d 126 (Tex. 2010) ..............................................................................19
Rogers v. Tex. State Bd. of Architectural Examn’rs
390 S.W.3d 377 (Tex. App.—Austin 2011, no pet.) .............................. 13-14, 18
Schlichting v. Tex. State Bd. of Med. Examn’rs
310 S.W.2d 557 (Tex. 1958) ........................................................................ 29-30
Teem v. State
183 S.W. 1144 (Tex. Crim. App. 1916) .............................................................28
Tex. Ass’n of Psychological Assocs. v. Tex. State Bd. of Examn’rs of
Psychologists
439 S.W.3d 597 (Tex. App.—Austin 2014, no pet.) ....................................15, 26
Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n
375 S.W.3d 464....................................................................... 5, 15-16, 18, 20, 22
Tex. Lottery Comm’n v. First State Bank of DeQueen
325 S.W.3d 628 (Tex. 2010) ..........................................................................4, 11
Tex. Orthopaedic Ass’n v. Tex. State Bd. of Podiatric Exam’rs
254 S.W.3d 714 (Tex. App.—Austin 2008, pet. denied) ...................................29
Tex. State Bd. of Chiropractic Exam’rs v. Abbott
391 S.W.3d 343 (Tex. App.—Austin 2013, no pet.) ..........................................24
TGN-NOPEC Geophysical Co. v. Combs
340 S.W.3d 432 (Tex. 2011) ................................................................................4
v
Thompson v. Tex. State Bd. of Med. Exam’rs
570 S.W.2d 123 (Tex. Civ. App.—Tyler 1978, writ ref’d n.r.e.)...................7, 28
Transp. Ins. Co. v. Maksyn
580 S.W.2d 334 (Tex. 1979) ................................................................................ 6
W. Orange-Cove Consol. Indep. Sch. Dist. v. Alanis
107 S.W.3d 558 (Tex. 2003) ..............................................................................32
RULES, STATUTES AND CONSTITUTIONAL PROVISIONS
22 TEX. ADMIN. CODE § 78.13 ...........................................................................16, 33
22 TEX. ADMIN. CODE § 78.14 ...........................................................................10, 33
22 TEX. ADMIN. CODE § 183.2 .................................................................................30
22 TEX. ADMIN. CODE § 183.4 .................................................................................30
TEX. CONST., art. III, § 35 ........................................................................................30
TEX. CONST., art. XVI, § 31 ...............................................................................27, 30
TEX. GOV’T CODE § 311.021......................................................................................4
TEX. GOV’T CODE § 323.007 ......................................................................................7
TEX. GOV’T CODE § 325.015....................................................................................31
TEX. OCC. CODE § 151.002 ......................................................................................29
TEX. OCC. CODE § 151.052 .......................................................................... 28-29, 31
TEX. OCC. CODE §157.051 .......................................................................................23
TEX. OCC. CODE §162.052 .......................................................................................23
TEX. OCC. CODE, ch. 201 ...........................................................................................1
TEX. OCC. CODE § 201.002 .............................................................................. 3-4, 29
TEX. OCC. CODE § 201.151 ......................................................................................22
TEX. OCC. CODE § 201.152 ......................................................................................22
vi
TEX. OCC. CODE, ch. 205 ...........................................................................................1
TEX. OCC. CODE § 205.001 ..................................................................................4, 29
TEX. OCC. CODE § 205.003 ....................................................................................3, 5
TEX. OCC. CODE § 205.101 ......................................................................................29
TEX. OCC. CODE § 205.201 ........................................................................................6
TEX. OCC. CODE § 205.203 ................................................................................25, 30
TEX. OCC. CODE § 205.206 ................................................................................25, 30
TEX. OCC. CODE § 205.255.......................................................................................30
TEX. OCC. CODE § 1051.601 ....................................................................................13
TEX. R. APP. P. 38.1 .................................................................................................33
TEX. R. APP. P. 43.2 .................................................................................................27
TEX. R. APP. P. 43.3 .................................................................................................27
TEX. R. CIV. P. 166a .................................................................................................32
OTHER AUTHORITIES
Act of May 29, 1997, 75th Leg., R.S. ch. 1170
(Tex. S.B. 361) ...................................................... 2, 4, 6-9, 12, 18-20, 30-31, 33
Tex. Atty. Gen. Op. DM-415 (1996) ......................................................................... 7
Tex. S.B. 1601, 82nd Leg., R.S. (2011)..................................................................... 4
vii
INTRODUCTION
The Chiropractic Board’s 1 response crystalizes the infirmity of its argument.
The Board claims that a two-word addition to the definition of acupuncture in the
Acupuncture Chapter2 —that made no mention of chiropractic or chiropractors—
fundamentally changed the law so as to not only allow chiropractors to practice
acupuncture, contrary to the Chiropractic Chapter,3 but also to exempt
chiropractors from the licensing requirements of the Acupuncture Chapter. This is
even though (1) the legislation that made the addition was the Acupuncture
Board’s 4 (and not the Chiropractic Board’s) sunset bill; (2) the Chiropractic
Chapter was not amended to authorize chiropractors to practice acupuncture; and
(3) nothing in the Acupuncture Chapter was amended to exempt chiropractors from
the education, licensing, and oversight requirements of that chapter. The result is
that chiropractors are able to practice acupuncture with no oversight by any
regulatory board since the Chiropractic Board does not regulate the practice of
acupuncture by its licensees.
1
The Chiropractic Board refers to the Texas Board of Chiropractic Examiners and Yvette
Yarbrough, Executive Director in her Official Capacity.
2
The Acupuncture Chapter is Texas Occupations Code, Chapter 205.
3
The Chiropractic Chapter is Texas Occupations Code, Chapter 201.
4
The Acupuncture Board refers to the Texas State Board of Acupuncture Examiners.
1
The Chiropractic Board’s rationale requires an illogical leap. Certainly, the
terms “nonincisive, nonsurgical” are found in both the Chiropractic and
Acupuncture Chapters. But this Court should refuse to take the leap advocated by
the Board. By its express language, the Chiropractic Chapter’s scope of practice
provision does not authorize chiropractors to practice acupuncture. And the
definition of acupuncture in the Acupuncture Chapter does not exempt
chiropractors from licensure under that chapter. The Court should reverse the trial
court’s judgment and render judgment for the Acupuncture Association. 5
ARGUMENT
I.
Because acupuncture is outside the statutory scope of
chiropractic, the Chiropractic Board’s rules authorizing
chiropractors to practice acupuncture without a license from the
Acupuncture Board are invalid.
A. A two-word addition to the definition of “acupuncture” in the
Acupuncture Chapter did not create an exemption for chiropractors
from the licensing requirements of the Acupuncture Chapter.
The Chiropractic Board’s primary argument is not that the Chiropractic
Chapter authorizes chiropractors to practice acupuncture. It is instead that Senate
Bill 361—which inserted the phrase “nonincisive, nonsurgical” into the definition
of acupuncture in the Acupuncture Chapter—created an exemption for
5
Acupuncture Association refers to the Texas Association of Acupuncture and Oriental
Medicine.
2
chiropractors from the Acupuncture Chapter’s licensing requirements. This
argument is unsupportable.
The Acupuncture Chapter does not include any exemption for
chiropractors—the only exemption is for professionals acting within the scope of
their own licenses. TEX. OCC. CODE § 205.003(a); see also, e.g., Entergy Gulf
States, Inc. v. Summers, 282 S.W.3d 433, 440 (Tex. 2009). Specifically, the
Acupuncture Chapter provides that “[t]his chapter does not apply to a health care
professional licensed under another statute of this state and acting within the
scope of the license.” TEX. OCC. CODE § 205.003(a) (emphasis added). The
Acupuncture Chapter is not “another statute.” Id. Consequently, the only way a
chiropractor is exempt from the requirements of the Acupuncture Chapter is if the
chiropractor is practicing within the scope of chiropractic as defined in the
chiropractor’s licensing statute: the Chiropractic Chapter. The Chiropractic
Chapter does not permit chiropractors to perform acupuncture.
Under the express terms of the Chiropractic Chapter, chiropractors are
broadly prohibited from performing procedures involving needles, save for
diagnostic blood draws, and are limited to treating the musculoskeletal portion of
the body. See id. §§ 201.002, .003(a). The Chiropractic Chapter unambiguously
defines incisive as making an incision into any tissue or organ by any person or
implement, with only a narrow exception for diagnostic blood draws. Id.
3
§ 201.002(a)(3). A needle is an “implement” used to make an incision into the
skin, which by definition is a “tissue” and “organ.” Id. And by virtue of the single
exception for needle-use for diagnostic blood draws, the chapter makes clear that
all needles are “incisive.” See TGN-NOPEC Geophysical Co. v. Combs, 340
S.W.3d 432, 439 (Tex. 2011); Mid-Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d
265, 273 (Tex. 1999). 6
The Chiropractic Chapter does not include a provision authorizing
chiropractors to engage in acupuncture, despite attempts by some legislators to do
so in early versions of Senate Bill 361 and in subsequent legislation.7 The
Chiropractic Chapter does not list acupuncture as an exception to the prohibition
on needle use. It does not refer to any portion of the Acupuncture Chapter: it not
only does not mention the definition of acupuncture, it does not mention
acupuncture at all. Acupuncture—which by its statutory definition requires the use
of needles—does not fall within the statutory scope of chiropractic. TEX. OCC.
6
The Board’s reliance on the Code Construction Act is misplaced. First, canons of construction
are only available if a statute is ambiguous. Tex. Lottery Comm’n v. First State Bank of
DeQueen, 325 S.W.3d 628, 637 (Tex. 2010). There is no ambiguity here. Second, even if
available, canons of construction belie the Chiropractic Board’s interpretation. The Code
Construction Act provides that it should be presumed that a just and reasonable result is
intended, a result feasible of execution is intended, and public interest is favored over private
interest. TEX. GOV’T CODE § 311.021(3)-(5). These admonishments compel the Court to not
interpret “nonincisive, nonsurgical” in the Acupuncture Chapter’s definition of acupuncture as
creating an exemption for chiropractors from Acupuncture Board licensure.
7
CR 512, 515-16; Tex. S.B. 1601, 82nd Leg., R.S. (2011).
4
CODE § 205.001(2); see also, e.g., Commonwealth Dep’t of State v. Schatzberg,
371 A.2d 544, 546-47 (Pa. Commw. Ct. 1977) (holding that acupuncture is not
within the scope of chiropractic because they are not the same and do not treat the
same conditions). Indeed, the Board admits that the amendment to the Acupuncture
Chapter “was not an amendment that changed the scope of practice of
chiropractic.”8 The Board may not rely on the Acupuncture Chapter’s exemption
for healthcare professionals acting within the scope of their license when the
Chiropractic Board’s scope of practice does not include acupuncture. TEX. OCC.
CODE § 205.003(a).
B. If the Legislature “indirectly” attempted to exempt chiropractors from
the licensing requirements of the Acupuncture Chapter, the attempt
failed.
The Chiropractic Board’s argument that it was permissible for the
Legislature to “indirectly” allow chiropractors to practice acupuncture without a
license because it purportedly could have done so directly fails for several reasons.
First, statutes are read according to their express terms, Kia Motors Corp. v. Ruiz,
432 S.W.3d 865, 869 (Tex. 2014), and the scope of the practice of chiropractic is
found in the Chiropractic Chapter, not the Acupuncture Chapter. See Tex. Bd. of
Chiropractic Exam’rs v. Tex. Med. Ass’n, 375 S.W.3d 464. 467 (Tex. App.—
8
Chiropractic Board’s Brief, at 40.
5
Austin 2012, pet. denied). Because the scope of chiropractic is found in the
Chiropractic Chapter, the amendment to the definition of acupuncture in the
Acupuncture Chapter did nothing to enlarge the scope of chiropractic. Further,
contrary to the Board’s assertion that the definition of acupuncture in the
Acupuncture Chapter is not limited to licensed acupuncturists, the Acupuncture
Chapter applies to the licensing and regulation of acupuncturists by its terms. See
TEX. OCC. CODE § 205.201. Thus, this purported “indirect” attempt to amend the
scope of chiropractic failed.
Second, the Board ignores that the Legislature could not directly authorize
chiropractors to practice acupuncture in Senate Bill 361. When it attempted to do
so, those amendments were struck on germaneness grounds.9
Third, the Legislature attempted during the course of Senate Bill 361’s
enactment—and failed—to directly amend the Chiropractic Chapter to authorize
chiropractors to practice acupuncture. 10 The fact that a “direct” amendment was
not enacted militates against interpreting the so-called “indirect” amendment as
accomplishing what was rejected. See Transp. Ins. Co. v. Maksyn, 580 S.W.2d 334,
9
CR 515-16. Similarly, as explained in Sections II and III, infra, if the amendment is read as
allowing chiropractors to practice acupuncture, it violates the Texas Constitution’s one-subject
rule and the Texas Constitution’s prohibition against the Legislature favoring one school of
medicine over another.
10
CR 512, 515-16
6
338 (Tex. 1979). Indeed, members of the Legislature acknowledged during debate
that amending the Acupuncture Chapter’s definition of acupuncture would not
accomplish the purpose of allowing chiropractors to practice acupuncture without
an Acupuncture Board license.11 To accomplish that purpose, it would have been
necessary to amend the Chiropractic Chapter.
Finally, to interpret the definition of acupuncture as the Chiropractic Board
proposes defeats the Legislature’s goal for Texas statutes—to make them “more
accessible, understandable, and usable.” TEX. GOV’T CODE § 323.007(a). And
interpreting the effect of Senate Bill 361 in the manner urged by the Board also
defeats the purpose of the State’s regulation of the practice of medicine, which is to
“provide for the general health and welfare of its citizens.” Thompson v. Tex. State
Bd. of Med. Exam’rs, 570 S.W.2d 123, 128 (Tex. Civ. App.—Tyler 1978, writ
ref’d n.r.e.). As the Attorney General observed (before it later improperly reversed
course and concluded that chiropractors could practice acupuncture by virtue of
Senate Bill 361): “We believe the legislature, in the interest of the public health,
safety, and welfare, intended to except from the training and examination
requirements only health care professionals whose licenses clearly encompass the
practice of acupuncture.” Tex. Atty. Gen. Op. DM-415 (1996) (emphasis added)
11
CR 478-80, 483.
7
(internal citations omitted). This Court should not condone the Board’s latest
attempt to promote its own profession over following the law and protecting
patients.12 This is especially so since the Board does not oversee the practice of
acupuncture by its licensees.13
C. Even if the amendment to the Acupuncture Chapter’s definition of
acupuncture resulted in surplusage, the Court should decline to adopt
the Chiropractic Board’s interpretation because it contravenes the
express language of the Chiropractic Chapter and leads to an absurd
result.
The Court should reject the Chiropractic Board’s argument that the
Acupuncture Association’s interpretation of the definition of acupuncture renders
the term “nonincisive, nonsurgical” meaningless. First, it is possible to read the
phrase in a manner that does not render it meaningless. Because Senate Bill 361
amended the definition of acupuncture in the Acupuncture Chapter and was part of
the Acupuncture Board’s sunset bill, one interpretation is that the amendment
resulted in a limitation on the practice of acupuncture by acupuncturists.
Second, it is sometimes unavoidable for statutory language, in practical
effect, to be meaningless. See Kallinen v. City of Houston, 462 S.W.3d 25, 28
(Tex. 2015) (a court should “not treat any statutory language as surplusage if
possible”). As the United States Supreme Court has acknowledged, “our
12
CR 577; see also Acupuncture Association’s Brief, at 7-9.
13
CR 249-51, 253, 284, 577.
8
preference to avoid surplusage is not absolute,” Lamie v. U.S. Trustee, 540 U.S.
526, 536 (2004), and the preference “is sometimes offset by the canon that permits
a court to reject words as surplusage … if repugnant to the rest of the statute,”
Chickasaw Nation v. U.S., 534 U.S. 84, 94 (2001). See also King v. Burwell, 135 S.
Ct. 2480, 2492 (2015); Greater Houston P’ship v. Paxton, 468 S.W.3d 51, 66
(Tex. 2015).
Here, the fundamental problem with the amended definition of acupuncture
is that acupuncture is, by its very nature, an incisive procedure.14 Acupuncture
cannot be practiced in a nonincisive manner. No one disputes that needles
penetrate the skin and, as explained in Section I.E, the term “incisive” includes any
penetration of the skin. Indeed, the Chiropractic Board apparently does not actually
believe the amendment suddenly, overnight, made acupuncture nonincisive. The
Chiropractic Board’s executive director has expressly acknowledged that
acupuncture needles are incisive.15 The Board’s “surplusage” argument rests on an
assumption that the only possible impact of Senate Bill 361 was to allow
chiropractors to practice acupuncture through a fictional definition, thus implicitly
14
CR 493.
15
See also Chiropractic Board July 11, 2012 ad hoc meeting, at 1:46:00, available at
https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3, at which Yvette Yarbrough
admitted that “while [acupuncture] is in practice an incisive procedure, it’s defined as non-
incisive.”
9
acknowledging that the amendment did nothing to actually change what
acupuncture is.
Third, other principles of statutory construction counsel against the Board’s
interpretation. For instance, statutes should not be interpreted to lead to absurd
results. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). To interpret
the definition of acupuncture as carving out an exemption from licensure for
chiropractors would defeat the purpose of occupational regulations and potentially
harm the public. 16 The Board’s rules signal that the Board believes the intensive
educational and training requirements mandated by the Legislature for the practice
of acupuncture are not necessary—which is illustrated by the fact that the
Chiropractic Board requires a lackluster 100 hours of training and does not
regulate the practice of acupuncture by chiropractors. See 22 TEX. ADMIN. CODE §§
78.14(b), (d). 17 Just as the Acupuncture Board would not be qualified to second-
guess the legislatively mandated education requirements for the safe performance
of nursing, the Chiropractic Board is not qualified to grant chiropractors the right
to practice acupuncture while exempting them from all mandated education and
training requirements.
16
See Acupuncture Association’s Brief, at 28-33.
17
CR 249-51, 253, 284, 577.
10
Fourth, once more, the scope of chiropractic is set forth in the Chiropractic
Chapter, and it is inappropriate to resort to the Acupuncture Chapter to determine
that scope. Thus, even if a term in the Acupuncture Chapter is surplusage, this does
nothing to change the scope of chiropractic in the Chiropractic Chapter. 18 Under
the Chiropractic Chapter, by virtue of the broad prohibition against incisive
procedures (save for needles used for diagnostic blood draws), it is clear that the
chapter envisions needles to be incisive.
D. Though there is sometimes overlap among activities two regulated
professions can perform, an amendment to the definition of
acupuncture in the Acupuncture Chapter did not result in
chiropractors being authorized to engage in the entirely separate
profession of acupuncture.
The Chiropractic Board mischaracterizes that the Acupuncture Association
believes there can never be any overlap among regulated professions. The
Acupuncture Association has never claimed that an Occupations Code chapter
cannot create an exemption for professionals regulated by a separate regulatory
board. Instead, the Acupuncture Association believes that the addition of the
18
The Chiropractic Board also claims that because the Legislature is charged with knowledge of
the law when it enacts a statute and because remedial statutes are to be interpreted broadly, it is
necessary for the Court to defer to the Board’s construction of the relevant statutes. But both of
these doctrines assume it is appropriate to look beyond the express language of the Chiropractic
Chapter and rely on canons of construction to determine the scope of chiropractic—which it is
not. DeQueen, 325 S.W.3d at 637. Further, as has been explained, even if the Legislature
intended for the amendment to the definition of acupuncture to exempt chiropractors from the
licensure requirements of the Acupuncture Chapter, the attempt was unsuccessful.
11
phrase “nonincisive, nonsurgical” into the Acupuncture Chapter did not
successfully create any exemption or “carve out” for chiropractors from the
requirements of that chapter. To have created such an exemption, the Legislature
would have needed to amend the Chiropractic Chapter to authorize chiropractors to
practice acupuncture or in the very least would have needed to amend the
Acupuncture Chapter’s exemption provision to exempt chiropractors from the
chapter’s requirements. Senate Bill 361 did neither of these things.
Further, the Board ignores that though there may be times when two or more
types of practitioners can perform the same procedure, the Occupations Code has
nonetheless created a regime in which regulatory boards regulate unique
professions, each with independent licensure requirements and oversight by
independent boards. Here, the Board is not merely authorizing chiropractors to
practice another procedure. It is authorizing chiropractors to practice an entirely
separate profession that is subject to distinct licensure requirements and regulated
by a separate board. This devalues not only acupuncturists but also chiropractors
who are dually licensed as chiropractors and acupuncturists. The Acupuncture
Association is not aware of any other professional rules in which a governing
board has announced that its members can engage in an entirely separate
profession that is regulated by another board. The Chiropractic Board has also not
identified any examples in its brief.
12
E. The cases relied on by the Chiropractic Board do not support that the
two-word amendment to the definition of acupuncture created an
exemption from the requirements of the Acupuncture Chapter for
chiropractors.
One primary case the Chiropractic Board relies on highlights a distinctly
different circumstance in which the Legislature has successfully carved out an
exemption from a profession’s licensing requirements and demonstrates why the
Board’s argument in this case fails. In Rogers v. Texas State Board of Architectural
Examiners, the issue was whether the Occupations Code chapter regulating
architects exempted engineers engaging in certain practices from the requirements
of that chapter. 390 S.W.3d 377 (Tex. App.—Austin 2011, no pet.). The
Architecture Chapter’s exemption states: “This chapter and any rule adopted under
this chapter do not limit the right of an engineer licensed under [the Engineering
Chapter] to perform an act, service, or work within the scope of the practice of
engineering as defined by that chapter.” TEX. OCC. CODE § 1051.601. The
exemption additionally sets forth parameters for engineers engaging in practices
that overlap with the practice of architecture. Id. This Court held that the two
chapters “cross-reference each other so that the interpretation of one statute
necessarily involves interpretation of the other,” and this overlap dictated that the
Court could not grant deference to either the Engineering Board’s or Architecture
Board’s interpretation of the statutes at issue. Id. at 384.
13
The same is not true here. There is nothing in either the Chiropractic or
Acupuncture Chapter cross-referencing the other or stating that the two chapters
are to be referenced together. Further, it is significant that it is precisely because of
the significant cross-over between the Architecture and Engineering Chapters that
the Court refused to defer to either agency’s interpretation of its governing statutes.
Id. at 384-85. Here, there is not only no cross-over between the Chiropractic and
Acupuncture Chapters, but the issue is the practice of acupuncture by
chiropractors—something clearly within the domain and expertise of the
Acupuncture Board rather than the Chiropractic Board. See id. at 384. It is also
noteworthy that the Court concluded that determining whether the engineers
exceeded the scope of their licenses should be made by reference to the
Engineering Chapter’s scope of practice provision, not the Architecture Chapter.
Id. at 387-88; see also Harlingen Family Dentistry, P.C. v. Tex. Health & Human
Servs. Comm’n, 452 S.W.3d 479, 482 (Tex. App.—Austin Nov. 25, 2014, pet.
dism’d) (“An agency’s rules must comport with the agency’s authorizing statute.”).
It is improper for the Board to attempt to insert an additional exemption into the
Acupuncture Chapter by latching onto a definition in that chapter that makes no
reference to chiropractic or chiropractors (and also does not include the words
“except,” “exclude,” or the like).
14
Likewise, Texas Association of Psychological Associates v. Texas State
Board of Examiners of Psychologists does not offer the Board support. There, this
Court considered whether the Psychology Board exceeded its authority in adopting
rules requiring psychological associates to practice psychology under the
supervision of psychologists. 439 S.W.3d 597 (Tex. App.—Austin 2014, no pet.).
Contrary to the Chiropractic Board’s assertion, the Court did not conclude the
Psychology Board’s rules were valid by importing language from a separate
statute. Instead, it concluded the rules were valid because (1) the rules did not
contravene specific statutory language in the Psychology Chapter and (2) the rules
did not run counter to the general objectives of the Psychology Chapter. Id. at 603-
06. And while the Court mentioned language in the Insurance Code defining
“psychological associate” as someone practicing under the supervision of a
psychologist, it did not base its holding on the language. Id. at 606. Here, unlike in
Psychological Associates, the Board not only asks this Court to extract broad
significance from two words added to another chapter that makes no mention of
chiropractors, but also requests that the Court use those two words as the sole basis
for determining that chiropractors may practice acupuncture.
Additionally, Texas Board of Chiropractic Examiners v. Texas Medical
Association is unhelpful to the Chiropractic Board. The Board contends that in
Texas Medical Association this Court acknowledged that the phrase “incisive” in
15
the Chiropractic Chapter is ambiguous. This is false. The Court did not decide the
meaning of the term “incisive” because the Texas Medical Association did not
challenge the Board’s definition of that word in its rules. 375 S.W.3d at 480. And
importantly, the Court left open the question of whether, as a matter of statutory
construction, the Chiropractic Chapter’s lone exception for diagnostic blood draw
needles from the chapter’s prohibition against incisive procedures reflects the
Legislature’s intent for all other needle use (including use of acupuncture needles)
to be prohibited. Id. at 478. That question is now presented in this case. The Court
should conclude that the definition of incisive in the Chiropractic Chapter is a
prohibition against needle use with only one exception for diagnostic blood draws.
But to the extent the Court wishes to entertain whether there is any
distinction between a “common” or “technical” definition of incisive, as the parties
argued in Texas Medical Association, this is a distinction without a difference. In
Texas Medical Association, the Court stated that medical dictionaries define
“incision” as a “cut” while non-medical dictionaries define the term to include
“piercing.” 375 S.W.3d at 479-80. But even assuming the term “incisive” could be
limited to “cutting,” 19 “cut” is defined in at least some medical dictionaries as “to
19
See 22 TEX. ADMIN. CODE § 78.13(a)(4).
16
penetrate with a sharp object; strike a narrow opening in.” 20 “Cut,” “pierce,” and
“penetrate” are also synonymous.21 Thus, regardless of whether a “common” or
“medical” dictionary is consulted, “incisive” includes penetration by a sharp
object. And it cannot be disputed that all needles, including acupuncture needles,
are sharp objects that penetrate the skin. This is the most logical conclusion. It is
absurd to envision a regulatory scheme in which practitioners, agencies, and courts
are required to examine the heads of each type of acupuncture needle (and other
needles chiropractors might attempt to use) under a microscope to determine
whether a particular needle has a beveled head. See In re Blair, 408 S.W.3d 843,
848 (Tex. 2013).
Finally, if the Court believes there is any ambiguity in any of the relevant
statutory language, as alternatively urged by the Chiropractic Board, the Board’s
interpretation is unreasonable and entitled to no deference, as argued in the
Acupuncture Association’s opening brief.22 Moreover, if the Court is to afford
administrative deference to any agency, it should defer to the Acupuncture Board
since that is the agency created by the Legislature to oversee the practice of
20
See http://medical-dictionary.thefreedictionary.com/cut.
21
http://www.thesaurus.com/browse/cut.
22
Acupuncture Association’s Brief, at 28-45.
17
acupuncture. See Rogers, 390 S.W.3d at 384; Tex. Med. Ass’n, 375 S.W.3d at 477-
78.23
F. Legislative history is irrelevant to unambiguous statutes and, even if
considered, does not support the Chiropractic Board’s position.
The Chiropractic Board contends that Senate Bill 361’s legislative history
should be considered by this Court, pointing to language in Rogers in which the
Court described the legislative history in that case as “illuminating.” 390 S.W.3d at
385. But the Rogers holding was not premised on legislative history. Instead, the
Court construed the statutes at issue and reached its conclusion on the basis of the
language of those statutes, merely noting that legislative history also supported its
interpretation. Id. at 385-86. It would be error for this Court to decide this case on
the basis of legislative history: the Texas Supreme Court has repeatedly advised
that legislative history should not be considered when a statute is unambiguous.
See Entergy Gulf States, 282 S.W.3d at 437, 443; Alex Sheshunoff Mgmt. Servs.,
L.P. v. Johnson, 209 S.W.3d 644, 652 n.4 (Tex. 2006). Because the relevant scope
of practice statutes are unambiguous, the Court need not consider the Chiropractic
Board’s lengthy discussion of legislative history. But if the Court believes a review
23
See also CR 401-02, 408-13, 762-64.
18
of legislative history is appropriate, the history supports the Acupuncture
Association’s position. 24
The Board improperly relies on Representative Gray’s statements during
legislative debate on Senate Bill 361. It is axiomatic that a statement by a legislator
cannot make an unambiguous statute ambiguous nor does it evidence legislative
intent. See Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d 126, 191-92
(Tex. 2010); Ojo v. Farmers Grp., Inc., 356 S.W.3d 421, 435 (Tex. 2011). Thus,
Representative Gray’s statements do not inform of the Legislature’s intent. But
nonetheless, Representative Gray’s statements support the Acupuncture
Association, not the Chiropractic Board. Representative Gray correctly stated that
it was necessary to amend the Chiropractic Chapter to authorize chiropractors to
practice acupuncture without licensure by the Acupuncture Board because the
amendment to the definition of acupuncture “put [the practice of acupuncture by
chiropractors] under the Acupuncture Board” and would not have allowed
chiropractors to practice acupuncture without a license issued by and oversight
from that board.25
The Chiropractic Board also relies on a 1997 letter from former
Representative Tom Uher, in which he told the Attorney General that “incisive”
24
Acupuncture Association’s Brief, at 37-42.
25
CR 478.
19
was not intended to be so broad as to prohibit all needle use. To the extent
Representative Uher’s statement is afforded any weight, it is belied by actual
legislative history. As explained in the Acupuncture Association’s opening brief,
Representative Uher offered a floor amendment in 1995 (the session before Senate
Bill 361 was enacted) that limited the practice of chiropractic to nonincisive
procedures, but with an exception for acupuncture, blood draws, and needle EMG.
Tex. Med. Ass’n, 375 S.W.3d at 469 n.7.26 His amendment, however, was
successfully amended by Representative Janek to remove the exceptions for
acupuncture and needle EMG, with Representative Janek stating “[t]his
amendment would take out any ability by the chiropractors to put needles into
people.” Id. Thus, contrary to Representative Uher’s post hoc statement, the intent
of the amendment as adopted was the opposite—it was meant to prohibit needle
use in its entirety, save one narrow exception. Id.
The Board also misrepresents an irrelevant House Research Organization
bill analysis to argue that the amendment to the Acupuncture Chapter authorized
chiropractors to practice acupuncture.27 This bill analysis was not analyzing the
amendment to the definition of acupuncture in the Acupuncture Chapter. It was
analyzing the proposed committee amendments that would have amended the
26
Id. at 38-39.
27
Chiropractic Board’s Brief, at 8.
20
Chiropractic Chapter to expressly authorize chiropractors to practice acupuncture
under the authority of the Chiropractic Board—and those amendments did not
become law. 28 As to the other two bill analyses referred to by the Board, one of
them says nothing about any intent to allow chiropractors to practice acupuncture
without a license issued by the Acupuncture Board. 29 The other states that the
intent of the Senate’s amendment to the definition of acupuncture in the
Acupuncture Chapter was to allow chiropractors to practice acupuncture,30 but it
also acknowledged that the amendment was stricken to instead amend the
Chiropractic Chapter to allow chiropractors to practice acupuncture.31
G. The Court should decline to read the Acupuncture Chapter’s scope of
practice and the Chiropractic Chapter’s scope of practice in pari
materia.
The Court should not accept the Chiropractic Board’s invitation to adopt the
Attorney General’s position that the Acupuncture and Chiropractic Chapters’ scope
of practice definitions should be read in pari materia. At the outset, an Attorney
General opinion is simply advisory and is not binding authority on a court. City of
San Antonio v. Tex. Att’y Gen., 851 S.W.2d 946, 950 (Tex. App.—Austin 1993,
28
CR 468-74.
29
CR 459-63.
30
CR 507-12.
31
Id.
21
writ denied). Further, because the Chiropractic and Acupuncture Chapters are clear
and unambiguous, it is inappropriate to resort to extrinsic aids of construction.
Greater Houston P’ship, 468 S.W.3d at 58; City of Round Rock v. Rodriguez, 399
S.W.3d 130, 137 (Tex. 2013). But to the extent the Court looks to the Attorney
General’s opinion for guidance, the Court should be unpersuaded.
As explained, the Occupations Code is delineated into chapters with each
regulating a distinct profession, such as physicians, physician assistants, nurses,
chiropractors, and acupuncturists. Each chapter has its own board regulating its
own profession, not any other profession. The statutory scope of chiropractic is
established by the Chiropractic Chapter, not any other chapter of the Occupations
Code. See Tex. Med. Ass’n, 375 S.W.3d at 467. Further, the Legislature has granted
the Chiropractic Board the power to regulate, and adopt rules governing the
practice of, chiropractic, not any other profession. TEX. OCC. CODE §§ 201.151-
.152. To conclude that the Chiropractic Board also has the authority to adopt rules
regulating acupuncture—a practice that is under the domain of a separate state
agency—is to strip the specific powers the Legislature has delegated to each
agency of any purpose. If each profession regulated under the Occupations Code
can creatively “borrow” words from entirely separate regulatory regimes governing
other professions to expand its own limited scope of practice, what was the
22
purpose of creating specific scopes of practice for distinct professions, each with
its own statutorily-mandated educational, training, and licensure requirements?
Indeed, the purpose of the Occupations Code provisions regulating
healthcare professionals is to protect public safety and health. For this reason,
courts have declined to conflate entirely separate chapters of the Occupations
Code. See Neasbitt v. Warren, 22 S.W.3d 107, 111 (Tex. App.—Fort Worth 2000,
no pet.); Lenhad v. Butler, 745 S.W.2d 101, 105 (Tex. App.—Fort Worth 1988,
writ denied).
When the Legislature intends to assign a meaning from one chapter of the
Occupations Code into another, it does so explicitly. See, e.g., TEX. OCC. CODE
§§ 157.051, 162.052. The reason for this is apparent: it is nonsensical for a reader
of the Occupations Code to be required to consult an entirely separate chapter that
is not cross-referenced or mentioned in a profession’s governing chapter to
determine the actual scope of the profession’s practice. See Molinet v. Kimbrell,
356 S.W.3d 407, 411 (Tex. 2011). Thus, when the Legislature does not incorporate
a term from one statute explicitly into another statute, courts will not assume it
intended to do so. See, e.g., DLB Architects, P.C. v. Weaver, 305 S.W.3d 407, 410
(Tex. App―Dallas 2010, pet denied); In re Doe 3, 19 S.W.3d 300, 304 (Tex.
2000) (Gonzales, J., concurring).
23
Moreover, it is particularly improper to “import[ ] a definition from a
different statute adopted for different purposes.” Matagorda Cnty. Appraisal Dist.
v. Coastal Liquids Partners, L.P., 165 S.W.3d 329, 335 (Tex. 2005). If statutes
concern unrelated subjects, “[a] word defined in one act does not necessarily
determine the word’s meaning in another act dealing with a different subject.”
Brookshire v. Houston Indep. Sch. Dist., 508 S.W.2d 675, 678 (Tex. Civ. App.—
Houston [14th Dist.] 1974, no writ). Nothing in the Chiropractic Chapter indicates
any legislative intent to apply the definition of “acupuncture” in the entirely
separate Acupuncture Chapter to the Chiropractic Chapter in order to determine—
and exceed—the Chiropractic Chapter’s statutory scope. While the Chiropractic
Board attempts to label the Acupuncture Chapter and Chiropractic Chapter as
addressing the same subject matter, it fails to explain what common subject matter
they address: to the contrary, one governs the profession of acupuncture and the
other the distinct profession of chiropractic.
This Court has repeatedly refused to read statutes in pari materia when they
were not written to achieve the same objective. See Nat’l Media Corp. v. City of
Austin, No. 03-12-00188-CV, 2014 WL 4364815, at *1-2 (Tex. App.—Austin
Aug. 27, 2014, no pet.); Tex. State Bd. of Chiropractic Exam’rs v. Abbott, 391
S.W.3d 343, 347-49 (Tex. App.—Austin 2013, no pet.); In re JMR, 149 S.W.3d
289, 294 (Tex. App.—Austin 2004, no pet.). Under this Court’s precedent, the
24
Chiropractic Board may not use an isolated provision in another Occupations Code
chapter that contains no reference to the practice of chiropractic to expand
chiropractic’s limited scope of practice. See Brooks v. Tex. Med. Bd., No. 03-14-
00239-CV, 2015 WL 3827327, at *2 (Tex. App.—Austin June 18, 2015, no pet.).
H. The Acupuncture Association’s statutory construction argument is not
dependent on factual safety issues.
The Chiropractic Board incorrectly argues that the Acupuncture Association
has raised factual safety issues that are not susceptible to summary judgment. The
Acupuncture Association instead asserts that the Legislature has statutorily
determined what education and training is required for the safe and effective
practice of acupuncture. See, e.g., TEX. OCC. CODE §§ 205.203, .206; see also
Andrews v. Ballard, 498 F. Supp. 1038, 1054 (S.D. Tex. 1980). 32 The Board lacks
authority to second-guess the education and training that the Legislature has said is
required.
Indeed, this Court recently observed—as it has done many times—that the
purpose of occupational practice statutes is to protect the public from unqualified
32
The Chiropractic Board has filed a motion to strike all references to websites made by the
Acupuncture Association in its opening brief. The Acupuncture Association has already
responded to that motion, but notes again that the Association’s argument is one of statutory
construction. The internet material noted in the Association’s brief is intended to provide
background information for the Court and is not “evidence” to support any disputed factual
assertions.
25
practitioners. Psychological Assocs., 439 S.W.3d at 603. As a matter of law,
because chiropractors have not completed the statutorily-required education and
training for the practice of acupuncture, chiropractors are (as determined by the
Legislature) unqualified to perform the procedure. The Acupuncture Association
does not challenge “the relative qualifications of licensed chiropractors versus
licensed acupuncturists to perform acupuncture”33: it challenges chiropractors’ lack
of the educational qualifications expressly required by the Legislature.34
Further, the Board is wrong that safety is irrelevant to this Court’s decision.
First, as mentioned, the Court should avoid interpreting statutes to lead to absurd
results. Blair, 408 S.W.3d at 848. Second, the Court must consider the result of its
interpretation—and the result here would be a risk to public health and
contravention of the purpose of occupational regulations. See City of Houston v.
Clark, 197 S.W.3d 314, 318 (Tex. 2006). Additionally, the Board’s pattern of
aggrandizing its scope of practice to promote its own profession rather than to
33
Chiropractic Board’s Brief, at 14.
34
While the Chiropractic Board in the trial court attached a conclusory, self-serving affidavit by
a chiropractor who practices acupuncture without a license, the affidavit failed to create any
relevant fact dispute. CR 714-15. The affidavit merely stated the chiropractor’s belief that
chiropractors may practice acupuncture without the education or training the Legislature has
declared is necessary for the safe and effective performance of the procedure. The Board points
to no authority supporting the proposition that an individual may second-guess or overrule the
Legislature—and he cannot, as a matter of law.
26
protect the public is relevant to the Court’s consideration because it counsels
against granting the Board any deference in its interpretation of the relevant laws.
Because the Board’s rules authorizing chiropractors to practice acupuncture
exceed the statutory scope of the practice of chiropractic, this Court should reverse
the trial court’s judgment and render judgment for the Acupuncture Association. 35
II.
The statutory scheme purportedly authorizing chiropractors to
practice acupuncture with significantly less education and
training in acupuncture than licensed acupuncturists violates
Texas Constitution, Article XVI, Section 31.
The Chiropractic Board argues that the prohibition in the Texas Constitution
on the Legislature preferring one school of medicine over another does not apply
because chiropractic is not a school of medicine. See TEX. CONST. art. XVI, § 31
(“The Legislature may pass laws prescribing the qualifications of practitioners of
35
To the extent the Court believes any fact issues exist, the Acupuncture Association asks the
Court to remand for a new trial. There is no merit to the Board’s claim that the Acupuncture
Association waived the right to a new trial by failing to raise a fact issue in response to the
Board’s summary judgment motion. Both parties sought summary judgment on grounds that this
dispute is a question of statutory construction. And the Acupuncture Association has claimed that
the Board’s rules present public safety concerns and that acupuncture needles are incisive, as a
matter of statutory and rule construction. The Acupuncture Association also asked the trial court
to reconsider its order or, alternatively, grant a new trial. CR 767-72. If the Court believes the
issue of the Board’s authority to adopt the rules requires consideration of facts beyond the
statutory and rule language, it would be appropriate to remand for a new trial. See TEX. R. APP.
P. 43.2(d), 43.3(a); Coker v. Coker, 650 S.W.2d 391, (Tex. 1983) (determining that when both
parties moved for summary judgment claiming the issue was one of law, it was proper to reverse
and remand for the trial court to determine issues of fact since fact issues precluded summary
judgment for both parties).
27
medicine in this State …, but no preference shall ever be given by law to any
schools of medicine.”). The Acupuncture Association agrees that when
chiropractors practice chiropractic, they are exempt from the Medical Practice
Act. See TEX. OCC. CODE § 151.052(3) (exempting “a licensed chiropractor
engaged strictly in the practice of chiropractic as defined by law”). But the same is
not true when chiropractors practice acupuncture. The Board’s response misses
the point of the Acupuncture Association’s argument.
The Acupuncture Association argues that in the event the Court concludes
that the amendment to the Acupuncture Chapter authorized chiropractors to
practice acupuncture without a license from the Acupuncture Board, and without
completing the extensive training required for that license, then the statutory
scheme is unconstitutional because it prefers chiropractors over acupuncturists by
allowing chiropractors to practice acupuncture with less training than
acupuncturists.
Both acupuncture and chiropractic were historically considered practices of
medicine that could only be performed by physicians. Thompson, 570 S.W.2d at
130; Teem v. State, 183 S.W. 1144, 1147-48 (Tex. Crim. App. 1916). While
chiropractic was eventually exempted from the Medical Practice Act (so long as it
is strictly practiced within the confines of the Chiropractic Chapter), acupuncture
has never been fully severed, and the Acupuncture Board still operates under the
28
supervision of the Texas Medical Board. See, e.g., TEX. OCC. CODE §§ 151.052,
205.101; Andrews, 498 F. Supp. at 1039-40. Further, while chiropractic is limited
to treating the musculoskeletal system (TEX. OCC. CODE § 201.002(b)),
acupuncture, by its statutory definition, treats any condition in the human body (id.
§ 205.001(2)). Acupuncture is therefore a practice of medicine.
While the Board is correct that chiropractic is not the practice of medicine
by virtue of its exemption from the Medical Practice Act, this is only the case so
long as it is practiced strictly in accordance with its statutory scope. Id.
§§ 151.002(13), 151.052. If it is not practiced in this strict manner, it is not only
the practice of medicine, but it is also the unauthorized practice of medicine. See
Tex. Orthopaedic Ass’n v. Tex. State Bd. of Podiatric Exam’rs, 254 S.W.3d 714,
717, 721 (Tex. App.—Austin 2008, pet. denied). Chiropractors who practice
acupuncture are not strictly engaged in the practice of chiropractic; thus, they are
practicing medicine. Further, as noted, a practice that encompasses the whole body
is the practice of medicine. Schlichting v. Tex. State Bd. of Med. Examn’rs, 310
S.W.2d 557, 564 (Tex. 1958). If a chiropractor treats the entire body, such as by
performing acupuncture, the chiropractor ceases to strictly practice chiropractic
and instead is practicing medicine. Id.
The Chiropractic Board has admittedly authorized chiropractors to practice
acupuncture without a license from the Acupuncture Board and with limited
29
training (100 hours) in the procedure. Acupuncturists, on the other hand, are
required to hold a license issued by the Acupuncture Board and complete intensive
training and education (2,625 hours or more over four years) to perform
acupuncture. TEX. OCC. CODE §§ 205.203, .206, .255; 22 TEX. ADMIN. CODE
§§ 183.2, 183.4. As the Texas Supreme Court concluded in Schlichting, the Texas
Constitution prohibits allowing one group of practitioners to participate in an area
of the practice of medicine on less onerous terms than another group of
practitioners:
[T]o allow [a practitioner] to be licensed upon easier terms than those
required for the practice of ‘medicine’ would violate … the state
Constitution …. The same would be true should we permit it to be
practiced without any license at all, while enforcing a statute that
requires practitioners of ‘medicine’ to be licensed and on quite
onerous conditions.
310 S.W.2d at 564. If the statutory scheme authorizes chiropractors to practice
acupuncture without a license from the Acupuncture Board, and with far less
onerous education requirements, the Legislature “prefers” chiropractors over
acupuncturists, in violation of Texas Constitution, Article XVI, Section 31.
III.
The legislation that purportedly authorized chiropractors to
practice acupuncture violates the one-subject rule in Texas
Constitution, Article III, Section 35(a).
Because Texas Constitution, Article III, Section 35(a) prescribes that a bill
containing more than one subject is unconstitutional, if Senate Bill 361—the
30
Acupuncture Board’s sunset legislation—enlarged the practice of chiropractic to
include acupuncture, it violated the one-subject rule. The Chiropractic Board
incorrectly contends that this constitutional mandate is inapplicable because Senate
Bill 361 was intended to exempt chiropractors practicing acupuncture from the
Acupuncture Chapter’s licensing and oversight requirements, and thus was related
to the subject of the functions of the Acupuncture Board.
The single subject of sunset legislation is an executive agency, not the
substantive policy subject to that agency’s oversight. In fact, the sunset statute
itself indicates that matters tangentially related to agency continuance should be
addressed in “other legislation,” thus confirming the distinct nature of the subject
matter. See TEX. GOV’T CODE § 325.015(b)(2). As a consequence, sunset
legislation addressing the structure of the Acupuncture Board cannot expand or
contract the practice of chiropractic.
The Board attempts to compare the Medical Practice Act’s exemptions for
certain medical professionals (Texas Occupations Code, Section 151.052), to the
amendment to the Acupuncture Chapter, claiming that Senate Bill 361 similarly
exempted chiropractors from the Acupuncture Chapter. This convoluted argument
stumbles at the gate. First, there is no indication the exemptions in the Medical
Practice Act were enacted as part of a different agency’s sunset bill. Second, the
exemptions in the Medical Practice Act are expressly stated. But there is nothing in
31
the Acupuncture Chapter stating that chiropractors are exempt from the
requirements of that chapter.
As was concluded in the House, the amendments to the Chiropractic Chapter
authorizing chiropractors to practice acupuncture were not germane to the
Acupuncture Board’s sunset bill. Because these direct amendments were not
germane, it follows that an amendment purportedly indirectly authorizing the same
conduct is also not germane. See W. Orange-Cove Consol. Indep. Sch. Dist. v.
Alanis, 107 S.W.3d 558, 600 (Tex. 2003). Germaneness and the constitutional one-
subject mandate are one and the same. See Jessen Assocs., Inc. v. Bullock, 531
S.W.2d 593, 601 (Tex. 1976). Thus, if the amendment to the Acupuncture Chapter
authorizes chiropractors to practice acupuncture, it rendered that portion of the bill
unconstitutional.
IV.
The Chiropractic Board has waived any argument regarding its
laches defense.
Though the Chiropractic Board has now abandoned its statute of limitation
defense, it invites the Court—without argument—to affirm the judgment on the
basis of laches. In the trial court, the Board did not argue laches in its motion for
summary judgment or in response to the Acupuncture Association’s cross-motion.
Thus, this defense is waived. TEX. R. CIV. P. 166a(c); Fed. Deposit Ins. Corp. v.
Lenk, 361 S.W.3d 602, 611 (Tex. 2012). The Board also has waived its laches
32
argument by failing to adequately brief it in this Court. TEX. R. APP. P. 38.1(i);
Foster v. City of El Paso, 396 S.W.3d 244, 258 (Tex. App.—El Paso 2013, no
pet.). The Court should not consider the laches argument.
PRAYER
The Texas Association of Acupuncture and Oriental Medicine prays that the
Court:
(1) reverse the trial court’s judgment, render judgment for the
Association, and declare invalid and enjoin 22 Texas Administrative
Code §§ 78.13(a)(4), (b)(2), (e)(2)(C), and 78.14 (previously
§§ 75.17(a)(3), (b)(4), (e)(2)(C), and 75.21);
(2) alternatively, reverse the trial court’s judgment, render judgment for
the Association, and declare that the statutory scheme created by
Senate Bill 361’s amendment to the Acupuncture Chapter is
unconstitutional because the Legislature may not favor one school of
medicine over another nor enact legislation containing more than one
subject; or
(3) in the further alternative, if the Court believes any fact issue precludes
rendition of judgment, reverse the trial court’s judgment and remand
for a new trial.
The Association further prays for any other relief to which it may be entitled.
33
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
34
CERTIFICATE OF COMPLIANCE
Appellant certifies that this Reply Brief of Appellant (when excluding the
caption, table of contents, index of authorities, signature, proof of service,
certificate of compliance, and appendix) contains 7,472 words.
/s/ Craig T. Enoch
Craig T. Enoch
CERTIFICATE OF SERVICE
I hereby certify that, on November 18, 2015, the foregoing Reply Brief of
Appellant Texas Association of Acupuncture and Oriental Medicine 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
35