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 8026365 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/1/2015 10:04:10 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 12/1/2015 10:04:10 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 __________________________________________________________________ APPELLEES’ THIRD 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 APPELLEES’ THIRD MOTION TO STRIKE The Texas Board of Chiropractic Examiners and Yvette Yarbrough, Executive Director (collectively, “Board”) move to strike those portions of the briefs of amicus Council of Colleges of Acupuncture and Oriental Medicine (CCAOM), and the Reply Brief of Appellant Texas Association of Acupuncture and Oriental Medicine, that rely on documents outside the Clerk’s Record and the documents themselves, because they were not presented to or relied upon by the trial court in rendering its judgment, and the documents are not part of the Clerk’s Record or otherwise made a part of the record on appeal. Now that Appellee has moved to strike those portions of Appellant’s brief that improperly rely on material that Appellant failed properly to introduce in evidence in this case, this amicus has been enlisted to attempt to expand the record in this case. Because this amicus brief is merely a back-door attempt to expand the evidentiary record before this Court, those portions of the amicus brief that rely on or incorporate the same documents that Appellant sought to introduce should be struck, as well as other parts of the amicus brief that cite factual material outside the record. Further, in its Reply Brief, TAAOM again attempts to enlarge the record with reference to a recording of a hearing that was not introduced into the record at the trial court. The objectionable portions of the CCAOM amicus brief include the following: 1 1. Footnote 1. These are the American College of Acupuncture and Oriental Medicine (Houston), AOMA Graduate School of Integrated Medicine (Austin), and Texas Health and Science University (Austin). For a complete list of all member schools of the Council, see http://www.ccaom.org/members.asp?sort=state. Concerning the Council generally, see www.ccaom.org. 2. Footnote 2. See http://www.ccaom.org/downloads/7thEditionManualEnglishPDFVersion.pdf [hereinafter cited as CNT Manual]. 3. Footnote 3. See file:///C:/Users/CCAOM/Downloads/CNT%20Requirements.pdf 4. Footnote 4. See http://www.nccaom.org/regulatory-affairs/state-licensure- map. Most recently, North Dakota authorized recognition of the national certification exams of NCCAOM. See N.D. Cent. Code § 43-6105(1)(b), added by Sen. Bill No. 2191 (2015) https://legiscan.com/ND/text/2191/2015. 5. Footnote 8. ACAOM, Accreditation Manual—Structure, Scope, Process, Eligibility Requirements, and Standards 26 (July 2012), Standard 8.1a. See http://www.acaom.org/documents/accreditation_manual_712.pdf. The minimum length of an Oriental Medicine curriculum, which includes the study of Chinese herbology in addition to acupuncture, is at least four academic years and consists of at least 2,625 hours of which there are 705 hours in Oriental medical theory, diagnosis, and treatment techniques in acupuncture and related studies; 450 hours in didactic Oriental herbal studies; and 870 hours in integrated acupuncture and herbal clinical training. Id. 6. Footnote 9. CNT Manual at 3-23, http://www.ccaom.org/downloads/7thEditionManualEnglishPDFVersion.pdf 7. Footnote 10. Id. at 4 The objectionable portion of the Appellant’s Reply Brief includes the following: Footnote 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.” Texas Rule of Appellate Procedure 34.1 states the following: “The appellate record consists of the clerk’s record and, if necessary to the appeal, the reporter’s 2 record.” The documents listed above do not appear in, nor are they referenced in any pleading that is a part of the clerk’s record. Amici are subject to the same rules as the parties when filing briefs with the Court. Tex. R. App. P. 11(a). When these documents are referenced in the amicus; brief, the documents do not contain a reference to the Clerk’s Record. Tex. R. App. P. 38.1(g). This Court may only review the record as filed and may not consider documents neither in the record nor considered by the trial court. Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex. App.—Dallas 2005, pet. denied). There is significant overlap between the documents cited in the amicus brief and the Appellant’s Brief. Just as the documents and argument based upon them were improper in TAAOM’s Brief, they are improper in the amicus brief and the Reply Brief. Accordingly, this Motion to Strike should be granted and the Court should not review the above documents cited by amicus or the arguments supported by these documents in the Reply Brief. Further, the Court should not take judicial notice of any of the documents. Judicial notice is neither requested nor appropriate in this case. These documents are matters of evidence that should have been introduced at the trial court to be considered. For the reasons stated in the Board’s Second Motion to Strike, these documents should not be considered by the Court. 3 PRAYER The Board asks the Court to grant this Appellees’ Third Motion to Strike and delete from the consideration of this case all documents pertaining to factual matters outside the Clerk’s Record and all arguments based upon those documents. 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. 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 4 CERTIFICATE OF CONFERENCE I hereby certify that I have conferred with opposing counsel concerning the Second Motion to Strike and they are not in agreement with the Motion. /s/ Joe H. Thrash JOE H. THRASH Assistant Attorney General CERTIFICATE OF COMPLIANCE In compliance with Texas Rule of Appellate Procedure 9.4(i)(3) and relying on the word count function in the word processing software used to produce this document, I certify that the number of words in this document is 788. /s/ Joe H. Thrash JOE H. THRASH Assistant Attorney General 5 CERTIFICATE OF SERVICE A true and correct copy of the foregoing Second Motion to Strike was served via e-serve and/or e-mail on this the 1st day of December, 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 Jason Wright President, Council of Colleges of Acupuncture and Oriental Medicine 2360 State Rte. 89 Seneca Falls, NY 13148 Telephone: 315 568-3268 jwright@nycc.edu /s/ Joe H. Thrash JOE H. THRASH Assistant Attorney General 6