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 8303548 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/18/2015 1:20:02 PM JEFFREY D. KYLE CLERK No. 3-15-00262-CV FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS In the Court of Appeals 12/18/2015 1:20:02 PM Third District of Texas — Austin JEFFREY D. KYLE Clerk TEXAS ASSOCIATION OF ACUPUNCTURE AND ORIENTAL MEDICINE, Appellant, v. TEXAS BOARD OF CHIROPRACTICE EXAMINERS AND YVETTE YARBROUGH, EXECUTIVE DIRECTOR IN HER OFFICIAL CAPACITY, Appellees. On Appeal from 201st District Court, Travis County, Texas Cause No. D-1-GN-14-000355 ACUPUNCTURE ASSOCIATION’S RESPONSE TO THE CHIROPRACTIC BOARD’S THIRD MOTION TO STRIKE Craig T. Enoch Melissa A. Lorber Shelby O’Brien ENOCH KEVER PLLC 600 Congress Avenue, Suite 2800 Austin, Texas 78701 (512) 615-1200 / (512) 615-1198 fax Attorneys for Appellant 1 In its Third Motion to Strike, the Chiropractic Board again asks the Court to strike portions of an amicus brief, this time the amicus letter submitted by the Council of Colleges of Acupuncture and Oriental Medicine’s (CCAOM). The Board also asks the Court to strike a footnote in the Acupuncture Association’s reply brief (a reference to an online recording of a Chiropractic Board ad hoc meeting). The Court should deny the Board’s newest motion. The Acupuncture Association has already fully responded to the Board’s previous motions to strike. The Acupuncture Association refers the Court to those responses and incorporates them here by reference. But it bears repeating that: • An amicus curiae does not file documents with the Court. TEX. R. APP. P. 11. The Court’s clerk only receives amicus briefs and letters. Id. The Board does not explain how the Court can strike a document that is not even filed. • The Association merely refers the Court to a state government website in the public domain for the Court’s reference. The recording is not “evidence,” and this is not an appeal that turns on evidence. In the very least, the Court can take judicial notice of the recording since there is no reasonable dispute that Yvette Yarbrough said what she said, nor that a recording on the Chiropractic Board’s website is inaccurate. TEX. R. EVID. 201(b)(2); MCI Sales & Serv. v. Hinton, 329 S.W.3d 475, 484 & n.7 (Tex. 2010). 2 PRAYER Appellant Texas Association of Acupuncture and Oriental Medicine respectfully prays that this Court deny the Chiropractic Board’s Third Motion to Strike. The Acupuncture Association further requests any other relief the Court deems appropriate at law or equity. 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 3 CERTIFICATE OF SERVICE I hereby certify that, on December 18, 2015, the Acupuncture Association’s Response to the Chiropractic Board’s Third Motion to Strike was served via electronic service on the following: Joe H. Thrash Assistant Attorney General Administrative Law Division P.O. Box 12548 Austin, Texas 78711 Joe.Thrash@texasattorneygeneral.gov /s/ Craig T. Enoch Craig T. Enoch 4