ACCEPTED
03-14-00396-CV
3671274
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/6/2015 4:26:35 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00396-CV
In the Third Court of Appeals FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
Austin, Texas 1/6/2015 4:26:35 PM
JEFFREY D. KYLE
Clerk
TEXAS BOARD OF CHIROPRACTIC EXAMINERS AND
YVETTE YARBROUGH, EXECUTIVE DIRECTOR,
Appellants,
v.
TEXAS MEDICAL ASSOCIATION,
Appellee.
On Appeal from the
353rd Judicial District, Travis County, Texas
No. D-1-GN-11-000326
MOTION FOR PANEL REHEARING
AND/OR EN BANC REHEARING
KEN PAXTON APRIL L. FARRIS
Attorney General of Texas Assistant Solicitor General
State Bar No. 24069702
CHARLES E. ROY
First Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
JAMES E. DAVIS Austin, Texas 78711-2548
Deputy Attorney General for Tel.: (512) 936-2923
Civil Litigation Fax: (512) 474-2697
april.farris@texasattorneygeneral.gov
JONATHAN F. MITCHELL
Solicitor General COUNSEL FOR APPELLANTS
INDEX OF AUTHORITIES
Cases
Browning v. Prostok,
165 S.W.3d 336 (Tex. 2005)................................................................................... 3, 9
Heckman v. Williamson County,
369 S.W.3d 137 (Tex. 2012)....................................................................................... 5
Nat’l Am. Ins. Co. v. Texas Prop. & Cas. Ins. Guar. Ass’n for Paula Ins. Co.,
No. 03-09-00680-CV, 2013 WL 4817637 (Tex. App.—Austin Aug.
28, 2013, no pet.)......................................................................................................... 9
Tex. Bd. of Chiropractic Exam’rs v. Texas Med. Ass’n,
375 S.W.3d 464 (Tex. App.—Austin 2012, pet. denied) ................................ passim
Tex. Gen. Indem. Co. v. Tex. Workers’ Comp. Comm’n,
36 S.W.3d 635 (Tex. App.—Austin 2000, no pet.) ............................................. 4, 6
Thomas v. Long,
207 S.W.3d 334 (Tex. 2006)....................................................................................... 5
Statutes
22 TEX. ADMIN. CODE § 71.17 ............................................................................................. 6
22 TEX. ADMIN. CODE § 75.17 ......................................................................................... 2, 7
22 TEX. ADMIN. CODE § 75.17(b)(5).................................................................................... 7
22 TEX. ADMIN. CODE § 75.17(b)(9) ................................................................................... 7
22 TEX. ADMIN. CODE § 75.17(c)(3)(C)............................................................................... 7
22 TEX. ADMIN. CODE § 75.17(d) ................................................................................ 7, 8, 9
22 TEX. ADMIN. CODE § 75.17(d)(1)............................................................................ passim
22 TEX. ADMIN. CODE § 75.17(d)(1)(A) .......................................................................... 8, 9
22 TEX. ADMIN. CODE § 75.17(d)(1)(B) .............................................................................. 8
TEX. GOV’ T CODE § 2001.038 ............................................................................................. 3
TEX. OCC. CODE § 201.002 ................................................................................................... 2
TEX. OCC. CODE § 201.002(b)(1) ......................................................................................... 9
ii
No. 03-14-00396-CV
In the Third Court of Appeals
Austin, Texas
TEXAS BOARD OF CHIROPRACTIC EXAMINERS AND
YVETTE YARBROUGH, EXECUTIVE DIRECTOR,
Appellants,
v.
TEXAS MEDICAL ASSOCIATION,
Appellee.
On Appeal from the
353rd Judicial District, Travis County, Texas
No. D-1-GN-11-000326
MOTION FOR PANEL REHEARING AND/OR EN BANC REHEARING
The Court’s memorandum opinion—issued mere hours after this complex case
was submitted for decision without the benefit of the requested oral argument—suffers
from three fundamental errors that require rehearing: (1) the opinion misstates the
appellate issues at the outset, and so resolves appellate issues that the Texas Board of
Chiropractic Examiners and its Executive Director (TBCE) did not assert; (2) the
opinion resolved the subject-matter jurisdiction inquiry using a method that the Texas
Supreme Court prohibits; (3) the opinion misstates which administrative rule is at issue
with respect to a key component of TBCE’s jurisdictional challenge, and consequently
reaches an erroneous conclusion.
Appellants, therefore, respectfully request panel rehearing and an opportunity to
present oral argument on TBCE’s issues, which are of great consequence to the practice
of chiropractic in Texas.
ARGUMENT
Rehearing should be granted for three reasons. First, the Court’s opinion errs
from the outset by purporting to address and resolve a challenge to the trial court’s
jurisdiction over the entire lawsuit. Slip Op. at *1 (misstating TBCE’s position, at the
outset of the opinion, as “assert[ing] . . . that the district court lacked subject-matter
jurisdiction over the TMA’s suit because it is an impermissible collateral attack”
(emphasis added)). But TBCE has never challenged the trial court’s jurisdiction over
Texas Medical Association’s (TMA) entire suit, which consists of distinct declaratory-
relief claims seeking invalidation of four different provisions of the chiropractic Scope
of Practice Rule, 22 Tex. Admin. Code § 75.17. See Slip. Op. at *3 (listing the four
provisions of the Scope of Practice Rule challenged in TMA’s suit). The opinion’s
premise that TBCE has challenged the district court’s jurisdiction over “TMA’s suit”
cannot be reconciled with TBCE’s stated appellate issues, its requested relief, or its
thorough briefing in this matter.1
1 Compare Slip Op. at *1 (misstating TBCE’s position as “assert[ing] . . . that the district court lacked
subject-matter jurisdiction over the TMA’s suit because it is an impermissible collateral attack . . .”
(emphasis added)) with TBCE Br. at x (Statement of the Issues) (challenging jurisdiction over only
“TMA’s request for a declaration that ‘the use of the term ‘diagnosis’ in the Board’s Scope of Practice
Rule ‘violate[s] Tex. Occ. Code § 201.002’”); id. at 37 (Prayer for Relief) (requesting relief only as to
2
Rather, TBCE’s plea to the jurisdiction and this appeal challenged only the trial
court’s subject-matter jurisdiction over one of these four claims—TMA’s request to
invalidate the provision of the Scope of Practice Rule “authorizing chiropractors to
‘diagnose’ diseases,” Slip Op. at *3, which is at § 75.17(d)(1). TBCE Br. 3-9, 25.
Specifically, TBCE argues that TMA, in prior litigation, filed a declaratory-relief
claim attempting to invalidate § 75.17(d)(1) on the very same grounds. TMA lost that
challenge, and a final judgment was entered rejecting TMA’s attempt to invalidate that
provision.2 Tex. Bd. of Chiropractic Exam’rs v. Texas Med. Ass’n, 375 S.W.3d 464, 492 (Tex.
App.—Austin 2012, pet. denied) (TMA I)). Consequently, the court has no subject-
matter jurisdiction to hear TMA’s second and successive claim for a declaration
invalidating § 75.17(d)(1), because that claim is a collateral attack on the prior judgment.
TBCE Br. 16-17, 21, 26 (citing Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005)
(holding that a collateral attack attempts to “avoid the binding force of a judgment in a
proceeding not instituted for the purpose of correcting, modifying, or vacating the
judgment, but in order to obtain some specific relief which the judgment currently
stands as a bar against.”)). TMA’s claim is also barred by collateral estoppel, which
typically is an affirmative defense, but operates jurisdictionally as to a declaratory-relief
“TMA’s request for declaratory relief on the issue of the use of the term ‘diagnosis’ in the Scope of
Practice Rule”); id. at 4-5, 7-8, 9, 25.
2
TBCE Br. 3-9, 25. Section 2001.038 of the Texas Government Code allows TMA to bring “an
action” challenging the validity of a rule provision. It does not authorize TMA to bring a second action
challenging the same provision on the same grounds because it disagreed with the prior judgment.
3
claim that simply relitigates the validity of an administrative rule. TBCE Br. 19, 28-29,
33, 39 (citing Tex. Gen. Indem. Co. v. Tex. Workers’ Comp. Comm’n, 36 S.W.3d 635, 639
(Tex. App.—Austin 2000, no pet.)).
By contrast, TBCE has never disputed that subject-matter jurisdiction exists over
the remaining three claims seeking invalidation of three other provisions of the Rule,
which the parties have not litigated previously. Nor has TBCE ever argued that the
case—or TMA’s diagnosis-provision claim—is moot. Accordingly, the Court’s holdings
that “this proceeding is not a collateral attack on the prior judgment,” and “this case is not
moot,” are not responsive to the issues on appeal that were actually raised and briefed
by TBCE. Slip. Op. *8, 6 (emphasis added). These holdings display a fundamental
misunderstanding of the issues presented and, therefore, warrant rehearing.
Second, rehearing is necessary because the opinion resolved the question of
subject-matter jurisdiction in a manner that is contrary to settled Texas law: by finding
subject-matter jurisdiction over the case as a whole simply because there is jurisdiction
over some of TMA’s claims. See Slip Op. at *6 (“This case is not moot.”); id. at *5 (“Even
if one of the arguments the TMA now advances in support of its claim has been decided
against it (which we do not decide), that would not deprive the district court of subject
matter jurisdiction over a challenge to provisions of the scope-of-practice rule that were
not at issue in the previous litigation.”).
This reasoning contravenes the Texas Supreme Court’s holding that subject-
matter jurisdiction must be decided on a claim-by-claim basis, not as to the case as a
4
whole. Thomas v. Long, 207 S.W.3d 334, 338 (Tex. 2006) (“Long argues [that] if the trial
court lacks jurisdiction over some claims but not others, it must deny the plea. We
disagree. . . . [I]t is proper for a trial court to dismiss claims over which it does not have
subject matter jurisdiction but retain claims in the same case over which it has
jurisdiction.”); Heckman v. Williamson County, 369 S.W.3d 137, 152-53 (Tex. 2012) (“First,
a plaintiff must demonstrate that the court has jurisdiction over (and the plaintiff has
standing to bring) each of his claims; the court must dismiss those claims (and only
those claims) over which it lacks jurisdiction”).
Requests to invalidate different provisions of the Scope of Practice Rule are
distinct claims, and each claim prevails, falls, or is waived independently of the others.
See TMA I, 375 S.W.3d at 472-73, 490-94, 497 (analyzing requests to invalidate different
provisions of the Scope of Practice Rule as distinct claims). Thus, the trial court’s
undisputed jurisdiction over TMA’s requests to invalidate three other Rule provisions
has no bearing on whether the court has subject-matter jurisdiction to hear TBCE’s
challenge to the provision “authorizing chiropractors to ‘diagnose’ diseases.” Slip. Op.
at *3. TMA has not argued otherwise, and for good reason. Texas law is clear that claims
for which subject-matter jurisdiction is lacking cannot piggyback into court on separate
claims for which subject-matter jurisdiction exists. Thomas, 207 S.W.3d at 338.
This erroneous approach yielded an erroneous decision. Relying on the trial
court’s jurisdiction over the three other claims, the opinion explicitly reserved judgment
on the question that is dispositive of whether jurisdiction exists over TMA’s claim
5
requesting the invalidation of § 75.17(d)(1): whether TMA has previously litigated and
lost the same challenge to this provision of the Scope of Practice Rule that authorizes
chiropractors to make a “diagnosis.” Slip. Op. at *5 (“Even if one of the arguments the TMA
now advances in support of its claim has been decided against it (which we do not decide), that would
not deprive the district court of subject matter jurisdiction over a challenge to
provisions of the scope-of-practice rule that were not at issue in the previous litigation.”
(emphasis added)). Until this question is answered, the Court cannot resolve whether
TMA’s new “diagnosis”-provision claim is a collateral attack on the prior final
judgment. Nor can the Court determine whether this Court’s controlling decision in
Texas General Indemnity defeats jurisdiction over TMA’s request to supplant the prior
court’s declaration of § 75.17(d)(1)’s validity with a declaration of its invalidity. See Tex.
Gen. Indem. Co., 36 S.W.3d at 639 (affirming grant of a plea to the jurisdiction where the
parties had already proceeded to judgment in another court on the issue of the rule’s
validity, and thus were “barred from relitigating” the issue).
Finally, rehearing is necessary to correct another crucial factual error that led to
an erroneous legal conclusion. The opinion again misstates TBCE’s briefing in
reasoning that “[o]n appeal the Board argues that in TMA I the TMA litigated the issue
of whether use of the term ‘diagnosis’ rendered rule 71.17(d) invalid. . . . The trial court’s
judgment in TMA I dealt solely with the validity of certain provisions of the scope-of-
practice rule that are not at issue in the present litigation.” Slip. Op. at *6 (emphasis
added). But TBCE has never made any argument whatsoever regarding Rule § 71.17,
6
entitled “Temporary Faculty License.” It was not at issue in TMA I. On the contrary,
TBCE’s argument has always been that, in the TMA I litigation, TMA litigated the issue
of whether the use of the term “diagnosis” rendered 22 Tex. Admin. Code § 75.17(d)
and (d)(1) (portions of the Scope of Practice Rule) invalid. See TBCE Br. 6-8, 10-11, 21,
25, 36 (comparing TMA’s “diagnosis” pleadings on § 75.17(d) and (d)(1) in TMA I to
TMA’s “diagnosis” provision pleadings in this case).
Alternatively, assuming that this error was a typo and that the Court intended to
refer to § 75.17, the statement that “[t]he trial court’s judgment in TMA I dealt solely
with the validity of certain provisions of the [Rule] that are not at issue in the present
litigation” is still incorrect. Slip. Op. at *6. The opinion acknowledges that TMA here
requests a declaration invalidating the Scope of Practice Rule provision “authorizing
chiropractors to ‘diagnose’ diseases.”3 Slip. Op. at *3. But there is only one such
provision in the Rule that vests chiropractors with the authority to “diagnos[e]”: 22 Tex.
Admin. Code § 75.17(d)(1) (under title provision § 75.17(d) (“Analysis, Diagnosis, and
Other Opinions”)). See § 75.17(d)(1) (“In the practice of chiropractic, licensees may
render an analysis, diagnosis, or other opinion regarding the findings of examinations
3
TMA’s complaint challenges the “validity of specific provisions of 22 Tex. Admin. Code § 75.17”
that “authorize[] chiropractors to diagnose diseases,” but the complaint never gives a citation for those
“specific provisions,” which are found only in § 75.17(d) and (d)(1). R.4. The complaint’s vagueness
and omission of any citation to § 75.17(d) and (d)(1) is likely to blame for the opinion’s erroneous
conclusion that TMA here challenges only §§ 75.17(b)(5), 75.17(b)(9), and 75.17(c)(3)(C). Slip. Op. at
*5-6. That particular holding also errs in another respect: as TBCE explained in its brief,
§ 75.17(c)(3)(C) “no longer existed at the time [TMA’s] First Amended Complaint was filed,” and that
former provision’s substance now appears elsewhere. TBCE Br. 23.
7
and evaluations.”); § 75.17(d)(1)(A) and (B) (listing topics that may and may not be
proper subjects of subsection (d)(1)’s authority grant). No other provision confers that
authority. TMA’s pleaded request for a declaration that the “use of the term ‘diagnosis’”
exceeds the “lawful scope of the practice of chiropractic” must be a request to invalidate
§ 75.17(d)(1). R.4.
There is no question that both the trial-court judgment and the appeal in TMA
I “dealt” with this same provision; they did so exhaustively. To begin, TMA I quoted
§ 75.17(d) and (d)(1) in their entirety. Texas Bd. of Chiropractic Examiners v. Texas Med.
Ass’n, 375 S.W.3d at 489. TMA I then proceeded to hold that: (1) TMA litigated to a
final judgment the issue of whether the use of the term “diagnosis” rendered § 75.17(d)
and (d)(1) invalid4; (2) TMA lost that claim in trial court, by virtue of the district court’s
denial of TMA’s motion for summary judgment and its grant of TBCE’s counter
summary-judgment motion on that claim5; (3) TMA waived its right to appeal that
portion of the judgment by failing to cross appeal from the judgment6; and (4) the
4
“First, they sought a declaration that 75.17(d)’s use of ‘diagnosis’ in itself rendered this rule and
various related rules invalid, reasoning that the statutory scope of chiropractic permits licensees to
‘analyze, examine, or evaluate’ certain conditions, but not to ‘diagnose’ them, and that ‘diagnose’ is
instead reserved to the practice of medicine and certain other health care professions.” TMA I, 375
S.W.3d at 490. TMA, however, won a narrower claim in the district court challenging the authorization
of chiropractors to diagnose on certain topics listed in (d)(1)(A) and (B), but that portion of the
judgment was reversed by this Court in TMA I. Id. at 490-91, 494, 497.
5
“The district court denied the Physician Parties’ motion and granted the Chiropractors’ motions ‘in
part as to the Chiropractic Board’s use of the word ‘diagnosis’ in its rule.’” Id. at 490-91.
6
“[T]he Physician Parties’ ‘cross-point’ seeks relief beyond that which they were afforded in the district
court’s judgment, which explicitly granted the Chiropractor Parties’ motion for partial summary
judgment and rendered a take-nothing judgment as to the Physician Parties’ claims for a declaration
8
“effect” of TMA’s failure to appeal is that the meaning of “diagnose” is “synonymous
with the phrase ‘analyze, examine, or evaluate’ in the statutory scope of chiropractic,”
and thus “effectively tracks”—and so does not exceed—“the Legislature’s scope of the
chiropractic.”7 TBCE Br. 20-21. TMA’s new pleading requesting “a declaration that the
use of the term ‘diagnosis’ . . . exceed[s] the lawful scope of the practice of chiropractic
and the authority of TBCE,” R.4., attempts to avoid the binding force of the judgment
and its effect. Browning, 165 S.W.3d at 346. There is no subject-matter jurisdiction over
this collateral-attack claim.8
TBCE also respectfully renews its request for oral argument. The issue of
whether the “diagnosis” power vested by § 75.17(d)(1) exceeds the lawful scope of the
chiropractic is a question of vital importance to the Board, its Executive Director, and
the thousands of chiropractors licensed to practice in the State of Texas. And the
question of whether TMA’s “diagnosis” challenge is a collateral attack on a judgment
that has already resolved that critical issue in TBCE’s favor is a question that must be
that the use of ‘diagnosis’ in itself rendered 75.17(d) invalid. Consequently, to raise this contention on
appeal, the Physician Parties were required to file their own notice of appeal.” Id. at 492.
7
Id. at 491 (quoting TEX. OCC. CODE § 201.002(b)(1)); id. at 494 (“[R]egardless of whether diagnosis,
pathology, or etiology invoke concepts of disease as the Physician Parties suggest, the bottom line is
that paragraph (d)(1)(A) limits chiropractors to diagnoses regarding ‘the biomechanical condition of
the spine and musculoskeletal system’ as required by the statutory scope of chiropractic. Accordingly,
the provision does not exceed the statutory scope of chiropractic.”)
8 Nat’l Am. Ins. Co. v. Texas Prop. & Cas. Ins. Guar. Ass’n for Paula Ins. Co., No. 03-09-00680-CV, 2013
WL 4817637, at *3 (Tex. App.—Austin Aug. 28, 2013, no pet.) (“[I]f the . . . action for declaratory
relief attempts to avoid or requires us to interpret or modify the prior judgment, it is an impermissible
collateral attack, and the trial court lacked subject matter jurisdiction.”).
9
resolved by careful analysis of the prior trial-court judgment and opinion in TMA I,
TMA’s pleadings in the TMA I litigation, and TMA’s pleadings in this case. That careful
analysis, however, has not yet been performed.
PRAYER
For these reasons, TBCE respectfully requests rehearing and oral argument.
Respectfully submitted.
KEN PAXTON /s/ April L. Farris_______
Attorney General of Texas APRIL L. FARRIS
Assistant Solicitor General
CHARLES E. ROY State Bar No. 24069702
First Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL
JAMES E. DAVIS P.O. Box 12548 (MC 059)
Deputy Attorney General for Austin, Texas 78711-2548
Civil Litigation Tel.: (512) 936-2923
Fax: (512) 474-2697
JONATHAN F. MITCHELL april.farris@texasattorneygeneral.gov
Solicitor General
COUNSEL FOR APPELLANTS
10
CERTIFICATE OF SERVICE
On January 6, 2015, this motion for rehearing was served via File & ServeXpress
on counsel in this proceeding as listed below:
Mr. David F. Bragg Mr. Donald P. Wilcox
LAW OFFICES OF DAVID F. BRAGG Ms. Kelly Walla
P.O. Box 2047 TEXAS MEDICAL ASSOCIATION
Bastrop, Texas 787602 401 West 15th St.
dfbragg@sbcglobal.net Austin, Texas 78701
rocky.wilcox@texmed.org
Counsel for Appellee kelly.walla@texmed.org
Counsel for Appellee
Mr. Jason Ray
RIGGS, ALESHIRE & RAY
700 Lavaca St. Suite 920
Austin, Texas 78731
jray@r-alaw.com
Counsel for Intervenor Texas Chiropractic Association
/s/ April L. Farris
April L. Farris
CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this motion
contains 2,637 words, excluding the portions of the brief exempted by Rule 9.4(i)(1).
/s/ April L. Farris
April L. Farris
11
Texas Board of Chiropractic Examiners and Yvette Yarbrough, Executive Director v. Texas Medical Association
Combined Opinion