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

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON MOTION FOR REHEARING

NO. 03-15-00262-CV

Texas Association of Acupuncture and Oriental Medicine, Appellant

v.

Texas Board of Chiropractic Examiners; and
Patricia Gilbert, Executive Director, in her Official Capacity, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. D-1-GN-14-000355, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING

OPINION

We grant, in part, appellant Texas Association of Acupuncture and Oriental

Medicine’s motion for rehearing, withdraw our previous opinion and judgment dated August 18,

2016, and substitute the following opinion and judgment in their place.

The Texas Association of Acupuncture and Oriental Medicine (the Acupuncture

Association) sued the Texas Board of Chiropractic Examiners (the Chiropractic Board) and

Patricia Gilbert, in her official capacity as the Executive Director of the Chiropractic Board, seeking

declarations that certain provisions in two of the Chiropractic Board’s administrative rules are
invalid.1 See Tex. Gov’t Code § 2001.038 (permitting challenge to validity or applicability of

agency rules); see also 22 Tex. Admin. Code §§ 78.13(a)(4), (b)(2), (e)(2)(C) (2016) (Texas Bd. of

Chiropractic Exam’rs, Scope of Practice), 78.14 (Texas Bd. of Chiropractic Exam’rs, Acupuncture).

Specifically, the Acupuncture Association asserted that the rule provisions are void because they

authorize chiropractors to perform acupuncture and, as a result, impermissibly expand the scope of

practice for chiropractors beyond that permitted by statute. See Tex. Occ. Code §§ 201.001-.606.

Alternatively, the Acupuncture Association sought a declaration that the statutory scheme violates

the Texas Constitution to the extent it authorizes chiropractors to practice acupuncture. See Tex.

Const., art. III, § 35, art. XVI, § 31.

On cross-motions for summary judgment, the trial court granted the Chiropractic

Board’s motion for summary judgment, denied the Acupuncture Association’s motion for summary

judgment, and dismissed the Acupuncture Association’s claims. The Acupuncture Association filed

this appeal. We will reverse that portion of the trial court’s judgment dismissing the Acupuncture

Association’s challenge to the Chiropractic Board’s rule expressly authorizing acupuncture and

remand for further proceedings. In all other respects, we will affirm the judgment of the trial court.

BACKGROUND

The practice of medicine in Texas is governed by the Texas Medical Practice Act and

regulated by the Texas Medical Board. See Tex. Occ. Code §§ 151.001-168.202. Among other

1
This suit was originally brought against Yvette Yarbrough, the former Executive Director
of the Texas Board of Chiropractic Examiners. We automatically substitute the name of the successor
to this office, Patricia Gilbert. See Tex. R. App. P. 7.2.

2
things, the Medical Practice Act requires that a person have a Medical Board-issued license to

lawfully “practice medicine” in the state. Id. § 155.001. The Medical Practice Act, however,

exempts a variety of other heath-related fields—the practitioners of which are subject to separate

legal requirements and regulations—from compliance with the Act and from the Texas Medical

Board’s regulatory authority. See id. § 151.052. One of these exempted fields is the practice of

chiropractic, which is regulated by Chapter 201 of the Occupations Code (or “the Chiropractic Act”).

See id. §§ 151.052(a)(3), 201.001-.606. The Chiropractic Act defines the permissible scope of

chiropractic practice, imposes education and licensing requirements, and delegates regulatory

authority to the Chiropractic Board. The net effect of these statutes is that a person licensed as a

chiropractor can lawfully do things that would otherwise constitute “practicing medicine” without

obtaining a license from the Texas Medical Board as long as he remains within the statutory

scope of practice for chiropractors. See Texas Bd. of Chiropractic Exam’rs v. Texas Med. Ass’n,

375 S.W.3d 464, 467 (Tex. App.—Austin 2012, pet. denied) (“TMA I”).

In relevant part, section 201.002 of the Chiropractic Act defines the scope of

chiropractic practice as follows:

(b) A person practices chiropractic under this chapter if the person:

(1) uses objective or subjective means to analyze, examine, or evaluate
the biomechanical condition of the spine and musculoskeletal system
of the human body; [or]

(2) performs nonsurgical, nonincisive procedures, including adjustment
and manipulation, to improve the subluxation complex or the
biomechanics of the musculoskeletal system[.]

...

3
 (c) The practice of chiropractic does not include:

(1) incisive or surgical procedures[.]

Tex. Occ. Code § 201.002(b), (c). Section 201.002 defines the term “incisive or surgical procedures”

as follows:

“Incisive or surgical procedure” includes making an incision into any tissue, cavity,
or organ by any person or implement. The term does not include the use of a needle
for the purpose of drawing blood for diagnostic testing.

Id. § 201.002(a)(3).

In the years that followed the Legislature’s promulgation of the current scope of

practice for chiropractors, the Chiropractic Board “informally advised” its chiropractic licensees that

the Chiropractic Act permitted chiropractors in Texas to perform a variety of procedures, including

acupuncture.2 See TMA I, 375 S.W.3d at 470 & n.8. In 2005, the Texas Legislature mandated

that the Chiropractic Board “adopt [formal] rules clarifying what activities are included within the

scope of the practice of chiropractic and what activities are outside that scope,” including “clearly

specify[ing] the procedures that chiropractors may perform” and “any equipment and the use of

that equipment that is prohibited.” See Act of May 27, 2005, 79th Leg., R.S., ch. 1020, § 8, 2005

Tex. Gen. Laws 3464, 3466 (codified at Tex. Occ. Code §§ 201.1525-.1526). In response, the

Chiropractic Board promulgated scope-of-practice rules that, among other things, authorized

2
For a detailed account of the history of the legislation and regulation of the practice of
chiropractic in Texas, see this Court’s opinion in Texas Board of Chiropractic Examiners v. Texas
Medical Association, 375 S.W.3d 464 (Tex. App.—Austin 2012, pet. denied).

4
chiropractors to perform a procedure called needle EMG, a procedure called manipulation-under-

anesthesia (MUA), and acupuncture. See 31 Tex. Reg. 4613 (2006) (Texas Bd. of Chiropractic

Exam’rs, Scope of Practice) amended in part by 34 Tex. Reg. 4332 (2009) (proposed Jan. 2, 2009)

(codified at former 22 Tex. Admin. Code § 75.17 repealed 40 Tex. Reg. 376 (2015) (proposed

Sept. 26, 2014)).

The Texas Medical Association subsequently sued the Chiropractic Board seeking,

in part, declarations that those provisions in the scope-of-practice rules that permitted chiropractors

to perform needle EMG and MUA were invalid because they exceeded the statutory scope of

chiropractic practice and, therefore, constituted the unlawful practice of medicine. See TMA I,

375 S.W.3d at 472-73. The district court agreed, granted summary judgment in favor of the TMA

on these claims, and declared that the rule provisions authorizing needle EMG and MUA were

invalid. Id. at 473. In TMA I, this Court affirmed that portion of the trial court’s judgment. Id. at 482,

488. Although the Chiropractic Board’s scope-of-practice rules also authorized acupuncture at the

time that the TMA filed their suit against the Board, the TMA did not challenge those portions of

the rules.

The Acupuncture Association subsequently filed this suit, challenging those portions

of the Board’s rules that authorize acupuncture. See Tex. Gov’t Code § 2001.038. In its petition,

the Acupuncture Association asserted that the Chiropractic Act “expressly limits chiropractic to

matters affecting the spine and musculoskeletal system and specifically prohibits the use of needles,

with a narrow exception for diagnostic blood draws.” The Association sought declarations that

various provisions in the Chiropractic Board’s scope-of-practice rules authorizing chiropractors to

5
practice acupuncture without a license from, or oversight of, the Texas State Board of Acupuncture

Examiners exceed the statutory scope of practice for chiropractors and, as a result, are invalid.

Alternatively, the Acupuncture Association sought a declaration that the statutory scheme in the

Chiropractic Act, to the extent it authorizes chiropractors to practice acupuncture, violates the Texas

Constitution. See Tex. Const. art. XVI, § 31 (prohibiting legislature from giving preference by law

to “any schools of medicine”); Tex. Const. art. III, § 35 (prohibiting legislature from enacting bill

that contains more than one subject).

The Acupuncture Association moved for traditional summary judgment on its claims

that the Chiropractic Board’s rules and, alternatively, the Chiropractic Act are invalid; conversely,

the Chiropractic Board moved for summary judgment seeking a take-nothing judgment on the

Acupuncture Association’s claims.3 The trial court granted the Chiropractic Board’s motion and

denied the Acupuncture Association’s motion. The Acupuncture Association filed a notice of appeal

and, in three issues, challenges the trial court’s summary-judgment rulings.

STANDARD OF REVIEW

Summary judgments are reviewed de novo. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005). Summary judgment is proper when the summary-judgment

evidence shows that there are no disputed issues of material fact and that the movant is entitled

to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A movant seeking traditional summary

3
The Chiropractic Board also moved for summary judgment on its affirmative defense of
limitations. Although the Acupuncture Association has challenged this ground on appeal, the
Chiropractic Board has withdrawn its limitations defense as a basis for affirming the summary
judgment.

6
judgment on its own cause of action has the initial burden of establishing its entitlement to judgment

as a matter of law by conclusively establishing each element of its cause of action. See Trudy’s Tex.

Star, Inc. v. City of Austin, 307 S.W.3d 894, 905 (Tex. App.—Austin 2010, no pet.). To obtain

traditional summary judgment on an opposing party’s claims, the movant must conclusively negate

at least one element of each of the claims or conclusively establish each element of an affirmative

defense. See Lakey v. Taylor, 435 S.W.3d 309, 316 (Tex. App.—Austin 2014, no pet.) (citing

Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)). When, as here, both parties move

for summary judgment on overlapping issues and the trial court grants one motion and denies the

other, we consider the summary-judgment evidence presented by both sides and determine all

questions presented. Valence Operating Co., 164 S.W.3d at 661. If we determine that the trial court

erred, we render the judgment the trial court should have rendered. Id.

The Chiropractic Board, as a state administrative agency, has only those powers that

the Legislature expressly confers upon it and those implied powers that are reasonably necessary to

carry out its express functions or duties. See Public Util. Comm’n v. City Pub. Serv. Bd., 53 S.W.3d

310, 315 (Tex. 2001). Absent specific or implied statutory authority, an agency rule is invalid. Id.

An agency may not exercise what is effectively a new power based on a claim that the exercise is

expedient for administrative purposes. Id.

To establish a rule’s facial invalidity, a challenger must show that the rule

(1) contravenes specific statutory language, (2) is counter to the statute’s general objectives, or

(3) imposes additional burdens, conditions, or restrictions in excess of or inconsistent with the

relevant statutory provisions. See Harlingen Family Dentistry, P.C. v. Texas Health & Human Servs.

7
Comm’n, 452 S.W.3d 479, 482 (Tex. App.—Austin 2014, pet. dism’d). An agency rule is presumed

valid, and the challenging party bears the burden to demonstrate its invalidity. Office of Pub. Util.

Counsel v. Public Util. Comm’n, 131 S.W.3d 314, 321 (Tex. App.—Austin 2004, pet. denied).

The parties’ arguments on appeal primarily concern the proper construction of the

Occupations Code. We review questions of statutory construction de novo. First Am. Title Ins. Co.

v. Combs, 258 S.W.3d 627, 631 (Tex. 2008). When construing a statute, our primary objective is

to ascertain and give effect to the Legislature’s intent. Id. at 631-32. In determining legislative

intent, we begin with the statute’s words. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432,

439 (Tex. 2011). We use any definitions provided by the statute and assign undefined terms their

ordinary meaning, unless a different, more precise definition is apparent from the term’s use in the

context of the statute. Id.

Where the statutory text is clear, it is determinative of legislative intent, unless

enforcing the plain meaning of the statute’s words would lead to absurd results. Entergy Gulf States,

Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2014). If a statute is ambiguous—i.e., there is more

than one reasonable interpretation—we give “serious consideration” to the construction of the

statute by the administrative agency charged with its enforcement, “so long as the construction is

reasonable and does not conflict with the statute’s language.” Railroad Comm’n v. Texas Citizens

for a Safe Future & Clean Water, 336 S.W.3d 619, 628-30 (Tex. 2011).

8
 ANALYSIS

In its first issue on appeal, the Acupuncture Association argues that the trial court

erred in failing to conclude that the Chiropractic Board exceeded its statutory rulemaking authority

in promulgating Rule 78.13(a)(4), (b)(2), (e)(2)(C), and Rule 78.14.

As previously discussed, the Chiropractic Act authorizes chiropractors to “use[]

objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the

spine and musculoskeletal system of the human body” and to “perform[] nonsurgical, nonincisive

procedures, including adjustment and manipulation, to improve the subluxation complex or the

biomechanics of the musculoskeletal system[.]” Tex. Occ. Code § 201.002(b)(1), (2). Chiropractors

are expressly excluded from performing “incisive or surgical procedures.” Id. § 201.002(c)(1).

In its scope-of-practice rule, Rule 78.13, the Chiropractic Board construed and

defined the term “incision” as “[a] cut or a surgical wound; also, a division of the soft parts made

with a knife or hot laser.” 22 Tex. Admin. Code § 78.13(a)(4). In addition, the Chiropractic Board

clarified that “[n]eedles may be used in the practice of chiropractic under standards set forth by the

Board but may not be used for procedures that are incisive or surgical.” Id. § 78.13(b)(2). Similarly,

in subsection (e)(2)(C) of Rule 78.13, the Board authorized chiropractors to “provide therapeutic

care for [patients]” using “acupuncture and other reflex techniques.” Id. § 78.13(e)(2)(C). Finally, in

Rule 78.14, the Chiropractic Board specifically addressed the practice of acupuncture by chiropractors

by (1) setting forth the training and certification requirements that chiropractors must obtain in order

to practice acupuncture and (2) specifying that chiropractors “must comply with the chiropractic

scope of practice as defined by the Texas Occupations Code [section] 201.002” when performing

acupuncture. See id. § 78.14.

9
 According to the Acupuncture Association, the challenged rule provisions are

invalid because they purport to authorize chiropractors to practice procedures that are outside of the

statutory scope of chiropractic practice. Specifically, the Acupuncture Association argues that the

rule provisions at issue impermissibly attempt to narrowly define “incisive” under section 201.002

of the Chiropractic Act in a manner that generally permits the use of needles, including acupuncture

needles. The Acupuncture Association contends that the statutory scope of practice more broadly

prohibits the use of any needles in the practice of chiropractic, except for diagnostic blood draws,

and that any penetration of the skin by a needle is “incisive.” See Tex. Occ. Code § 201.002(a)(3).

In support of its position, the Association points out that the Chiropractic Act states that “‘incisive

or surgical procedure’ includes making an incision into any tissue, cavity, or organ by any person

or implement” and identifies only one exception—“the use of a needle for the purpose of drawing

blood for diagnostic testing.” Id. The Association reasons that the implication of the statute’s

express exception for blood draws is that all other procedures involving needle use are “incisive”

and thus excluded from the scope of chiropractic practice. Such an interpretation, the Association

suggests, is consistent with various canons of statutory construction, including the canon known as

expressio unius est exclusio alterius, under which the express mention or inclusion of one thing

presumes the Legislature intentionally excluded the other or alternate thing. See Harlingen Family

Dentistry, 452 S.W.3d at 482. Under the Acupuncture Association’s construction, chiropractors are

not strictly engaged in the practice of chiropractic when they practice acupuncture because

acupuncture needles are not used “for the purpose of drawing blood for diagnostic testing.”

Consequently, the Acupuncture Association contends that the trial court erred in upholding the

10
challenged rules permitting acupuncture by chiropractors and in granting summary judgment in favor

of the Chiropractic Board.

In response, the Chiropractic Board argues that the trial court did not err in granting

summary judgment in its favor because the unambiguous language of Chapter 205 of the Occupations

Code (or “the Acupuncture Act”) creates an express exemption for chiropractors that allows them

to perform acupuncture, to the extent it is otherwise performed within the scope of chiropractic

practice, without being subject to the requirements of the Acupuncture Act. See Tex. Occ. Code

§§ 205.001-.458. The Acupuncture Act regulates acupuncturists in Texas and defines acupuncture,

in relevant part, as:

the nonsurgical, nonincisive insertion of an acupuncture needle and the application
of moxibustion to specific areas of the human body as a primary mode of therapy to
treat and mitigate a human condition, including evaluation and assessment of the
condition[.]

Id. § 205.001(2). The Chiropractic Board contends that the Chiropractic Act and the Acupuncture

Act should be construed consistently and in harmony, giving effect to all parts of the statutes. See

La Sara Grain Co. v. First Nat’l Bank, 673 S.W.2d 558, 565 (Tex. 1984) (“Generally, courts are to

construe statutes as to harmonize with other relevant laws, if possible.”). When this is done, the

Board reasons, one can only reasonably conclude that the Legislature, by defining acupuncture as

a “nonincisive, nonsurgical” procedure, “brought that procedure into the scope of practice of

chiropractic.” Alternatively, the Chiropractic Board asserts that the definition of “acupuncture,” as

used in the Acupuncture Act, is ambiguous and that (1) the legislative history related to the

amendment of the Acupuncture Act supports the Chiropractic Board’s interpretation; (2) Chapter

11
201 and Chapter 205 are in pari materia and can only be reconciled by removing acupuncture

from those procedures that are “incisive” under Chapter 201; and (3) the Chiropractic Board’s

interpretation of “incisive”—that only some needles are incisive and that acupuncture needles are

nonincisive—is a reasonable interpretation and is entitled to deference.

Our analysis of the parties’ positions must begin against the backdrop of our decision

in TMA I. This Court’s determination in TMA I that the Chiropractic Board’s rules authorizing

needle EMG were invalid turned on whether the needle-EMG procedure was “incisive” under the

Chiropractic Act. See TMA I, 375 S.W.3d 475-76. Like the Acupuncture Association does in the

instant case, the Texas Medical Association in TMA I took the position that all needle use is

“incisive” when the needle is inserted into “any tissue, cavity, or organ” and that this interpretation

was the negative implication of the Legislature’s exception for blood draws from “incisive or

surgical.” Id. at 476. When TMA I was decided, the Chiropractic Board’s rules provided that the

use of a needle was incisive “if the procedure result[ed] in the removal of tissue other than for the

purpose of drawing blood.” See former 22 Tex. Admin. Code § 75.17(a)(3) (Texas Bd. of Chiropractic

Exam’rs, Scope of Practice) amended in part by 38 Tex. Reg. 137 (2013) (proposed Sept. 28, 2012).

The Chiropractic Board contended that this interpretation of “incisive”—turning on whether tissue

was removed—was consistent with the statutory framework, including the Acupuncture Act’s

definition of acupuncture as “nonincisive,” and authorized the use of the needle EMG procedure in

the practice of chiropractic. TMA I, 375 S.W.3d at 476-77.

In analyzing the Legislature’s intent in its use of the term “incisive” in the

Chiropractic Act, we started our analysis in TMA I by recognizing that the term holds both an

12
ordinary meaning and a “somewhat narrower technical meaning.” Id. at 479. “Especially in the

context of health care, ‘incisive’ is used to refer to the act of cutting, usually tissue.” Id. (citations

omitted). “By contrast, the ordinary meaning of ‘incisive’ embraces not only the concept of cutting,

but also ‘piercing’ and ‘penetrating.’” Id. (citations omitted). In addition, we explained that the

Chiropractic Board’s own rule defined the term “incision” to mean, in relevant part, “a cut or

surgical wound,” see 22 Tex. Admin. Code § 78.13(a)(4), and that this definition was consistent

with the technical use of the term “incisive.” TMA I, 375 S.W.3d at 480.

This Court focused its analysis on whether the challenged rules were premised on a

construction and application of “cut” that was inconsistent with the rule’s text and underlying

statutes. Id. The summary-judgment evidence established that at least some of the types of needles

used in needle EMG had a beveled, blade-like edge designed to “cut” into tissue, under any

“conceivable definition of that term.” Id. Accordingly, we concluded that the rule provisions

authorizing chiropractors to perform needle EMG exceeded the statutory limits of chiropractic no

matter which definition of “incisive”—the broader ordinary meaning, as urged by the Texas Medical

Association, or the more narrow, technical meaning, as reflected in the Chiropractic Board’s rule

definition—was intended by the Legislature. Id. In addition, we rejected the Chiropractic Board’s

more narrow construction of the term “incisive” as being limited to those procedures which result

in the removal of tissue, explaining that the construction was “contrary to the text of its own

definition of ‘incision’ as well as the underlying statutes.” Id. at 481. As a result, we ultimately

concluded that the Chiropractic Board’s rules limiting needle use unless “incisive” under this narrow

construction and permitting chiropractors to perform needle EMG were invalid, at a minimum, to

the extent they authorized chiropractors to perform needle EMG with beveled-edged needles. Id.

13
 As in TMA I, our resolution of whether the Chiropractic Board’s rules in this case are

valid, to the extent they authorize the practice of acupuncture, turns on the Legislature’s intended

use of the word “incisive” in the Chiropractic Act. See Tex. Occ. Code § 201.002(c)(1). The relevant

statutory framework has not changed since TMA I. Thus, our analysis of whether the practice of

acupuncture is “incisive,” and thus excluded from the practice of chiropractic under the Act, depends

on whether Chiropractic Board Rule 78.13(a)(4), defining “incision” as a “cut” or “surgical wound,”

is reasonable and consistent with the statute. See 22 Tex. Admin. Code § 78.13(a)(4); Tex. Occ.

Code § 201.002(a)(3) (defining “incisive or surgical procedure”). This rule provision was not

challenged in TMA I, and we did not directly decide this issue. We did, however, explain in our

opinion that the Chiropractic Board’s definition of “incision,”which recognizes that some needles

may be considered “incisive,” while other needles may not, is consistent with the technical meaning

of the term “incisive” and also with the Legislature’s view that acupuncture needles are at least

capable of being inserted into the body in a “nonincisive” and “nonsurgical” manner. See TMA I,

375 S.W.3d at 481; see also Tex. Occ. Code § 205.001(2)(A) (defining acupuncture as “nonincisive”).

For these reasons, we cannot conclude that Chiropractic Board’s definition of “incision” as a “cut”

or “surgical wound” represents a construction of the term “incisive,” as used in the Chiropractic Act,

that is unreasonable or inconsistent with the statutory text. See TGS-NOPEC Geophysical Co.,

340 S.W.3d at 438 (“[I]f there is vagueness, ambiguity, or room for policy determinations in a statute

or regulation, . . . we normally defer to the agency’s interpretation unless it is plainly erroneous or

inconsistent with the language of the statue, regulation, or rule.”); see also Tex. Gov’t Code

§ 311.011(b) (“Words and phrases that have acquired a technical or particular meaning, whether by

legislative definition or otherwise, shall be construed accordingly.”).

14
 The Acupuncture Association and the Chiropractic Board each moved for summary

judgment on the Association’s claims that certain portions of Rule 78.13 are invalid, including

subsection (a)(4) defining “incision.” Because Rule 78.13(a)(4) is not unreasonable or inconsistent

with the Chiropractic Act, the trial court did not err in denying the Acupuncture Association’s

motion for summary judgment and granting summary judgment in favor of the Chiropractic Board

with respect to the Acupuncture Association’s challenge to Rule 78.13(a)(4).

In addition, the Acupuncture Association and the Chiropractic Board each moved

for summary judgment on the Association’s claim that subsection (b)(2) of Rule 78.13 is invalid.

Rule 78.13(b)(2) states that “needles may be used in the practice of chiropractic under standards set

forth by the Board but may not be used for procedures that are incisive or surgical.” See 22 Tex.

Admin. Code § 78.13(b)(2). Like Rule 78.13(a)(4), this rule provision reflects the Chiropractic

Board’s view that needles may be either incisive or nonincisive. And as with Rule 78.13(a)(4), that

construction is not unreasonable or inconsistent with the Chiropractic Act’s use of the term “incisive.”

Consequently, the trial court did not err in denying the Acupuncture Association’s motion for

summary judgment and granting summary judgment in favor of the Chiropractic Board with respect

to the Acupuncture Association’s challenge to Rule 78.13, subsection (b)(2).

Finally, the Acupuncture Association moved for summary judgment on its claims that

Rule 78.14 and subsection (e)(2)(C) of Rule 78.13 exceed the Chiropractic Board’s rulemaking

authority. Rule 78.14 and Rule 78.13(e)(2)(C) expressly purport to allow chiropractors to practice

acupuncture, subject to certain conditions. See 22 Tex. Admin. Code §§ 78.13(e)(2)(C), 78.14. To

be entitled to summary judgment on its challenges to Rule 78.14 and Rule 78.13(e)(2)(C), the

15
Acupuncture Association was required to conclusively establish that acupuncture is “incisive,”

which, as we have explained has been reasonably interpreted to mean “cut.” The Acupuncture

Association does not contend, nor is there is any evidence in the summary-judgment record

suggesting, that acupuncture needles always have a beveled edge or that the needles are otherwise

capable of “cutting.” As a result, the Acupuncture Association failed to establish, as a matter of law,

that the practice of acupuncture is “incisive” and therefore outside the statutory scope of chiropractic

practice. Consequently, the trial court did not err in denying the Acupuncture Association’s motion

for summary judgment on these claims.

The Chiropractic Board also moved for traditional summary judgment on the

Association’s challenges to Rule 78.14 and Rule 78.13(e)(2)(C). To prevail on its motion with respect

to these claims, the Chiropractic Board was required to establish that acupuncture needles are

“nonincisive” as a matter of law. The Chiropractic Board, however, does not contend that it presented

summary-judgment evidence conclusively establishing that acupuncture needles are not capable

of “cutting” and thus are “nonincisive.” Instead, the Chiropractic Board asserted in its motion for

summary judgment, and now on appeal, that the practice of acupuncture is “nonincisive,” as a

matter of law, because the Acupuncture Act, in its view, defines acupuncture as “nonincisive.” The

Chiropractic Board claims that regardless of what properties acupuncture needles possess or what

the practice of acupuncture entails, the Acupuncture Act has effectively exempted chiropractors

from the Acupuncture Act as a matter of statutory construction.

The crux of the Chiropractic Board’s argument is that the Legislature intended for the

definition of acupuncture in the Acupuncture Act to specifically address whether acupuncture is

16
“nonincisive” for purposes of the Chiropractic Act. In essence, the Chiropractic Board would have

us construe the Chiropractic Act as if it includes the definition of “acupuncture” found in the

Acupuncture Act and, consequently, excepts acupuncture from the Chiropractic Act’s general

prohibition on “incisive” procedures.4 The Chiropractic Board’s argument depends on the application

of the doctrine of in pari materia.5

The doctrine of in pari materia is a principle of statutory interpretation, a means of

giving full effect to legislative intent. State v. Wiseman, 269 S.W.3d 769, 774 (Tex. App.—Austin

2008, no pet.) (citing Mills v. State, 722 S.W.2d 411, 413 (Tex. Crim. App. 1986)); see Tex. Gov’t

Code § 311.026(b) (codification of in pari materia doctrine in code construction act). Statutes that

are found to be in pari materia are construed together, as though they were parts of the same law,

and if possible, conflicts between the statutes are harmonized. In the Estate of Forister, 421 S.W.3d

175, 180 (Tex. App.—San Antonio 2013, pet. denied) (citing In re J.M.R., 149 S.W.3d 289, 292 (Tex.

App.—Austin 2004, no pet.)); Texas State Bd. of Chiropractic Examr’s v. Abbott, 391 S.W.3d 343,

348 (Tex. App.—Austin 2013, no pet.); see Azeez v. State, 248 S.W.3d 182, 192 (Tex. Crim. App.

2008). Similarity of purpose or object is the most important factor in determining whether two

statutes are in pari materia, i.e., whether they are closely enough related to justify interpreting them

4
We note that the Acupuncture Act does not, contrary to the Chiropractic Board’s
suggestion, declare broadly that any use of an acupuncture needle is categorically “nonincisive.”
Instead, the Act states that the statutory scope of the practice of acupuncture includes the insertion
of a needle into the body if it is done nonsurgically and nonincisively. Tex. Occ. Code § 205.001(2).
5
The parties appear to contemplate that an ambiguity must exist before this doctrine can be
applied to statutory construction. We have decided, however, as outlined below, that the doctrine
of in pari materia does not apply in this case. As a result, we need not decide whether the statutes
at issue have created an ambiguity.

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as if they were parts of the same law. See Abbott, 391 S.W.3d 348. To determine whether two

statutes share a common purpose, courts consider whether the two statutes were clearly written to

achieve the same objective. Id. at 348-49. “The adventitious occurrence of like or similar phrases,

or even similar subject matter, in laws enacted for wholly different ends will not justify applying the

doctrine.” In re J.M.R., 149 S.W.3d at 292.

Here, the Chiropractic Act regulates the practice of chiropractic, defines the scope of

chiropractic practice, and prohibits chiropractors from performing “incisive” procedures. See Tex.

Occ. Code § 201.002. And although we have determined that the Chiropractic Act does not

necessarily preclude the use of all needles in the practice of chiropractic, the Chiropractic Act does

not refer to the practice of acupuncture, acupuncture needles, or to the Acupuncture Act. Separately,

the Legislature enacted the Acupuncture Act, regulating the practice of acupuncture and defining the

scope of that practice. See id. § 205.001(2)(A). Like the Chiropractic Act, the Acupuncture Act has

limited the use of acupuncture needles by acupuncturists “to the nonincisive insertion of acupuncture

needles” by defining the term “acupuncture.” See id. The Acupuncture Act expressly provides that

the definitions provided in section 205.001, including the definition of acupuncture, apply to

“this chapter,” i.e., the Acupuncture Act. Id. The Acupuncture Act does not refer to the practice of

chiropractic or to the Chiropractic Act, except to provide that a licensed acupuncturist may perform

acupuncture on a person if that person has been referred by a licensed chiropractor. See id.

§ 205.301.

There is no textual indication that the Legislature intended to incorporate the

Acupuncture Act’s definition of “acupuncture” into the Chiropractic Act. See DLB Architects, P.C.

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v. Weaver, 305 S.W.3d 407, 410 (Tex. App.—Dallas 2010, pet. denied) (noting that there was “no

indication that the legislature intended to incorporate the occupations code’s definition of ‘architect’

into chapter 150 of the civil practice and remedies code” and rejecting in pari materia argument);

see also Wiseman, 269 S.W.3d 769 (“Although two statutes need not have been adopted as part of

a single legislative act to be considered in pari materia, the fact that they were may serve as some

indication that the statutes were intended to have a common object or purpose.”). And because each

statute serves the purpose of defining and regulating a separate health-care field, we cannot conclude

that the acts were clearly written to achieve the same objective, despite the fact that they utilize

similar terminology.6 See DLB Architects, 305 S.W.3d at 410. Consequently, we cannot conclude

that the Legislature necessarily intended for the respective regulatory authorities over these two,

separate health-care fields to apply the same meaning to the term “incisive,” and accordingly, we will

not construe the Chiropractic Act as if it includes the Acupuncture Act’s definition of “acupuncture.”

To prevail on their motion for summary judgment on the Acupuncture Association’s

claims that Rule 78.14 and Rule 78.13(e)(2)(C) are invalid, the Chiropractic Board was required

to present summary-judgment evidence supporting its contention that acupuncture needles are

nonincisive as a matter of law. Because they failed to meet their burden, the trial court erred to the

extent it granted summary judgment in favor of the Chiropractic Board on these claims.

6
We recognize, as the Chiropractic Board has pointed out, that the Attorney General
previously issued an opinion concluding that the Chiropractic Act and Acupuncture Act could be
read in pari materia and that the definition in the Acupuncture Act effectively applies to the
Chiropractic Act. See Tex. Att’y Gen. Op. No. DM-471 (1998). Attorney General opinions, although
persuasive, are not binding authority. See Goodson v. Castellanos, 214 S.W.3d 741, 747 n.3 (Tex.
App.—Austin 2007, pet. denied) (citing Commissioners Court v. Agan, 940 S.W.2d 77, 82 (Tex.
1997)). In this case, we disagree with the Attorney General’s assertion that the Acupuncture Act and
Chiropractic Act may be read in pari materia because they “both regulate health care professions.”

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Constitutional Claims

In its second and third issues on appeal, the Acupuncture Association asserts, in the

alternative, that the trial court erred in granting summary judgment in favor of the Chiropractic

Board on its claim that the statutory scheme violates the Texas Constitution to the extent it permits

chiropractors to practice acupuncture. Specifically, the Acupuncture Association argues that the

statutory scheme (1) impermissibly grants a “preference” to chiropractors over acupuncturists, see

Tex. Const. art. XVI, § 31, and (2) was the result of legislation aimed at amending the Acupuncture

Act, not the Chiropractic Act, see Tex. Const. art. III, § 35. Because we cannot conclude, as a matter

of law, that the Chiropractic Act authorizes chiropractors to practice acupuncture, we need not decide

these alternative issues.

CONCLUSION

Cases construing the scope of chiropratic vis-4a-vis other healthcare fields has been

a recurring theme of litigation and decisions in this Court. See generally TMA I, 375 S.W.3d at

464-97; Texas Bd. of Chiropractic Exam’rs v. Texas Med. Assoc., No. 03-14-00396-CV, 2014 WL

7014530 (Tex. App.—Austin Dec. 8, 2014, pet. denied) (mem. op.). What this history underscores

is that the scope of chiropractic vis-4a-vis other healthcare fields is a puzzle best solved by the

Legislature in a clear and precise manner, rather than leaving these policy-laden issues to the

Judiciary for a determination of legislative intent from statutory language that is, to say the least, not

the model of clarity. We respectfully request that the Legislature solve this problem.

For the reasons set forth in the analysis above, we conclude that the trial court did not

err in denying the Acupuncture Association’s motion for summary judgment and in granting the

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Chiropractic Board’s motion for summary judgment with respect to the Acupuncture Association’s

challenges to Rule 78.13(a)(4) and (b)(2). The trial court did err, however, in granting summary

judgment in favor of the Chiropractic Board with respect to the Acupuncture Association’s

challenges to the validity of Rule 78.14 and to the validity of Rule 78.13(e)(2)(C). Because both the

Chiropractic Board and Acupuncture Association have failed to establish entitlement to judgment

as a matter of law on these claims, we reverse that portion of the trial court’s judgment and remand

the cause for further proceedings on this issue. We affirm the remainder of the trial court’s judgment

in favor of the Chiropractic Board on the Acupuncture Association’s claims.

__________________________________________

Scott K. Field, Justice

Before Chief Justice Rose, Justices Pemberton and Field

Affirmed in part; Reversed and Remanded in part on Motion for Rehearing

Filed: February 17, 2017

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