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

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:

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 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
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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.

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 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

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 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

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 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

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