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
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