                                                                                     ACCEPTED
                                                                                 03-15-00262-CV
                                                                                         8042672
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                            12/1/2015 6:13:11 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK
                         NO. 03-15-00262-CV

                                                              RECEIVED IN
                                                         3rd COURT OF APPEALS
                         In the Court of Appeals             AUSTIN, TEXAS
                     Third District of Texas - Austin    12/1/2015 6:13:11 PM
                                                           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 District Court, Travis County, Texas
                    Cause No. D-1-GN-14-000355



                   BRIEF OF AMICUS CURIAE
                 TEXAS MEDICAL ASSOCIATION


                           Donald P. Wilcox
                        State Bar No. 21449000
                       rocky.wilcox@texmed.org
                            Matthew T. Wall
                        State Bar No. 20756800
                         matt.wall@texmed.org
                       Texas Medical Association
                          401 West 15th Street
                          Austin, Texas 78701
                         Phone: (512) 370-1300
                          Fax: (512) 370-1693

        Attorneys for Amicus Curiae Texas Medical Association
                                 NO. 03-15-00262-CV


                                In the Court of Appeals
                            Third District of Texas - Austin


                 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 District Court, Travis County, Texas
                        Cause No. D-1-GN-14-000355



  MOTION TO RECEIVE AND CONSIDER BRIEF OF AMICUS CURIAE
               TEXAS MEDICAL ASSOCIATION


To the Honorable Court of Appeals

       Pursuant to Tex. R. App. P. 11, The Texas Medical Association respectfully
requests that the Court of Appeals for the Third District of Texas receive and consider
this Amicus Curiae brief in the above styled and numbered case.




                                            ii
                 IDENTITY OF PARTIES AND COUNSEL

Appellant/Texas Association of Acupuncture and Oriental Medicine

Craig T. Enoch
Melissa A. Lorber
Shelby O’Brien
ENOCH KEVER PLLC
600 Congress Avenue, Suite 2800
Austin, Texas 78701

Appellee/Texas Board of Chiropractic Examiners and Yvette Yarbrough,
Executive Director in her Official Capacity

Joe H. Thrash
Assistant Attorney General
Administrative Law Division
P.O. Box 12548
Austin, Texas 78711




                                      iii
                                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .......................................................... iii

TABLE OF CONTENTS ..........................................................................................iv

INDEX OF AUTHORITIES......................................................................................v

STATEMENT OF INTEREST OF AMICUS CURIAE............................................. 1

STATEMENT OF THE CASE .................................................................................. 2

ISSUES PRESENTED...............................................................................................2

STATEMENT OF FACTS ........................................................................................2

SUMMARY OF THE ARGUMENT ........................................................................3

ARGUMENT .............................................................................................................3

I.        The Acupuncture Rules Adopted by the Chiropractic Board Exceed
          Statutory Authority Under the Chiropractic Act……………………………3

II.       The Chiropractic Act Does Not Authorize the Performance of Any
          Procedures Upon the Nervous System……………………………………...6

III.      The Chiropractic Act Does Not Contain Any Provision
          Authorizing Chiropractors to Perform Acupuncture......................................8

PRAYER…….................................................................................................................. 10

CERTIFICATE OF SERVICE ................................................................................11

CERTIFICATE OF COMPLIANCE .......................................................................12

APPENDIX………. .................................................................................................13




                                                             iv
                                    INDEX OF AUTHORITIES

                                                    Cases

Brooks v. Texas Medical Board, No. 03-14-00239-CV, 2015 WL 3827327
(Tex. App. – Austin, June 18, 2015, no pet. h.)……………………………………6

Dallas Merchants and Concessionaire’s Ass’n v. City of Dallas,
852 S.W.2d 489 (Tex.1993)……………………………………………………...8-9

Pub. Util. Comm’n v. City Pub. Serv. Bd,, 53 S.W.3d 310 (Tex. 2001)…….........11

State Agencies. v. R.R. Comm’n of Tex., 421 S.W.3d 690 (Tex. App. – Austin
2014, no pet.)………………………………………………………………………8

Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n, 375 S.W.3d 464
(Tex. App. – Austin 2012, pet. denied)…………………………………………..4-5

USA Waste Services of Houston, Inc. v. Strayhorn, 150 S.W.3d 491
(Tex. App. – Austin 2004, pet. denied)…………………………………………..8-9


                                                   Statutes

TEX. OCC. CODE § 151.002(a)(13) ............................................................................ 4

TEX. OCC. CODE § 151.052(a)(3) ...................................................................... 4, 5-6

TEX. OCC. CODE § 165.052 ........................................................................................4

TEX. OCC.CODE § 201.002(b)(1) ................................................................... 3-4, 5, 6

TEX. OCC.CODE § 201.002(b)(2) ................................................................... 3-4, 5, 6

TEX. OCC. CODE § 205.001(2)(A) ............................................................................. 6

TEX. OCC. CODE § 205.003(a) ..................................................................................9

TEX. OCC. CODE § 205.201 .................................................................................... 8-9


                                                        v
TEX. OCC. CODE § 205.206 ........................................................................................9


                                                    Rules

22 TEX. ADMIN. CODE § 75.5 .....................................................................................9

22 TEX. ADMIN. CODE § 78.13(a)(5) ......................................................................... 7

22 TEX. ADMIN. CODE § 78.13(a)(8) ......................................................................... 7

22 TEX. ADMIN. CODE § 78.13(a)(9) ......................................................................... 7

22 TEX. ADMIN. CODE § 78.14 ........................................................................... 7-8, 9

22 TEX. ADMIN. CODE § 183.20(b) ............................................................................ 9


                                             Other Authority

STEDMAN’S MEDICAL DICTIONARY (28TH ED.) (“biomechanics”), at 221…………4




                                                       vi
              STATEMENT OF INTEREST OF AMICUS CURIAE

      The Texas Medical Association (“TMA") is a private, voluntary, non-profit

association of more than 48,000 Texas physicians and medical students. TMA was

founded in 1853 to serve the people of Texas in matters of medical care, prevention

and cure of disease, and improvement of public health. Today, TMA’s maxim

continues in the same direction: Physicians caring for Texans. TMA’s diverse

physician members practice in all fields of medical specialization. TMA supports

Texas physicians by providing distinctive solutions to the challenges they encounter

in the care of patients.

      In this case, TMA has an interest in the health and safety of patients treated in

Texas by TMA physician members. TMA’s mission is to improve the health of all

Texans. One of the responsibilities of TMA and its members is to protect the

integrity of medical licenses. This, in turn, means protecting the integrity of the

Medical Practice Act, by ensuring that standards for the practice of medicine are

adhered to.

      Pursuant to Rule 11 of the Texas Rules of Appellate Procedure, this confirms

that TMA received no compensation or fees in connection with the preparation or

submission of this amicus curiae brief and will provide all attorney fees incurred in

connection herewith.




                                          1
                         STATEMENT OF THE CASE

      The Texas Association of Acupuncture and Oriental Medicine “TAAOM”)

filed suit in the 201st District Court, Travis County, Texas (Cause No. D-1-GN-14-

000355), challenging the validity of rules adopted by the Texas Board of

Chiropractic Examiners (“Chiropractic Board”) authorizing chiropractors to perform

acupuncture. The TAAOM’s request for relief included a request for invalidation of

the pertinent rules. The trial court granted the Chiropractic Board’s motion for

summary judgment and denied the motion for summary judgment requested by the

TAAOM. The TAAOM has appealed from that judgment issued by the trial court.

                             ISSUES PRESENTED

ISSUE 1: The Acupuncture Rules adopted by the Chiropractic Board
exceed statutory authority under the Chiropractic Act.

ISSUE 2: The Chiropractic Act does not authorize the performance of any
procedures upon the nervous system.

ISSUE 3: The Chiropractic Act does not contain any provision authorizing
chiropractors to perform acupuncture.

                           STATEMENT OF FACTS

      TMA as Amicus adopts the Statement of Facts as set forth in the Brief of

Appellant, Texas Association of Acupuncture and Oriental Medicine, which was

filed with this Court on August 10, 2015.




                                            2
                       SUMMARY OF THE ARGUMENT

        The rules adopted by the Texas Board of Chiropractic Examiners (hereinafter

“Chiropractic Board”) that authorize chiropractors to perform acupuncture exceed

the statutory authority of the Board under the Chiropractic Act. Additionally, the

rules are not consistent with the Medical Practice Act’s limited exemption for a

licensed chiropractor who is engaged strictly in the practice of chiropractic as

defined by law. The Chiropractic Act limits the practice of chiropractic to analyzing,

examining, or evaluating the biomechanical condition of the spine or

musculoskeletal system, and to performing nonsurgical, nonincisive procedures to

improve the subluxation complex or biomechanics of the musculoskeletal system.

The Chiropractic Act makes no reference to the nervous system; acupuncture, by

contrast, involves stimulation of the central nervous system through various

acupuncture points. Finally, the Chiropractic Act does not include any provision

expressly or impliedly authorizing chiropractors to perform acupuncture. That act

addresses biomechanical conditions of the musculoskeletal system, not acupuncture.

                                   ARGUMENT

   I.      The Acupuncture Rules Adopted by the Chiropractic Board Exceed
           Statutory Authority Under the Chiropractic Act.

         Chapter 201, Texas Occupations Code (the “Chiropractic Act”), governs the

practice of chiropractic in Texas. It authorizes a chiropractor to “[use] objective or

subjective means to analyze, examine, or evaluate the biomechanical condition of
                                          3
the spine and musculoskeletal system of the human body;” and “[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). The term biomechanics is not defined

in the Chiropractic Act. Biomechanics commonly refers to the application of

mechanical principles to living entities. A medical dictionary defines biomechanics

as “[t]he science concerned with the action of forces, internal or external, on the

living body.” STEDMAN’S MEDICAL DICTIONARY (28TH ED.), p. 221.

        The Medical Practice Act defines “[p]racticing medicine,” in part, as “the

diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a

physical deformity or injury by any system or method, or the attempt to affect cures

of those conditions…”. TEX. OCC. CODE § 151.002(a)(13). The act does not apply to

“a licensed chiropractor engaged strictly in the practice of chiropractic as defined by

law.” TEX. OCC. CODE § 151.052(a)(3).

        A chiropractor must be engaged strictly in the practice of chiropractic as

defined by law to avail himself of the Medical Practice Act’s limited exemption. Id.

(emphasis added). Failure to follow the terms of the Chiropractic Act subjects a

chiropractor to potential enforcement action under the Medical Practice Act for the

unauthorized practice of medicine. See TEX. OCC. CODE § 165.052. As this honorable

Court wrote in another case involving the scope of chiropractic, “to the extent he


                                          4
[i.e., a chiropractor] exceeds the statutory scope of chiropractic, he would subject

himself to the Medical Practice Act – and practice medicine unlawfully.” Tex. Bd.

of Chiropractic Exam’rs v. Tex. Med. Ass’n, 375 S.W.3d 464, 467 (Tex. App. –

Austin 2012, pet. denied).

        The plain language of the Chiropractic Act restricts the practice of

chiropractic to analyzing, examining or evaluating the biomechanical condition of

the spine or musculoskeletal system, and to performing certain procedures to

improve the subluxation complex or the biomechanics of the musculoskeletal

system. TEX. OCC. CODE § 201.002(b)(1), (2). It does not include the nervous system.

The Chiropractic Board has adopted rules that extend the definition of chiropractic

beyond the limits of the Chiropractic Act. In adopting rules to include the

performance of certain procedures on the nervous system, including acupuncture,

the Chiropractic Board has exceeded its statutory authority to adopt rules regarding

the analysis, examination or evaluation of the biomechanical condition of the spine

and musculoskeletal system, and performance of nonsurgical, nonincisive

procedures, including adjustment and manipulation, to improve the subluxation

complex or the biomechanics of the musculoskeletal system. The adoption of such

rules is inconsistent with the Medical Practice Act’s requirement that a chiropractor

be “engaged strictly in the practice of chiropractic as defined by law.” TEX. OCC.

CODE § 151.052(a)(3) (emphasis added). This honorable Court has reiterated this


                                         5
statutory principle as recently as this year. In a case involving claims made by a

chiropractor on her professional website, this Court held:

         When engaged strictly in the practice of chiropractic as defined by law,
         a licensed chiropractor is not engaging in the unlicensed practice of
         medicine. But to the extent that a chiropractor exceeds the statutory
         scope of chiropractic, she would subject herself to the Medical Practice
         Act—and practice medicine unlawfully.

Brooks v. Texas Medical Board, No. 03-14-00239-CV, 2015 WL 3827327, at *2

(Tex. App. – Austin, June 18, 2015, no pet. h.)

   II.      The Chiropractic Act Does Not Authorize the Performance of Any
            Procedures Upon the Nervous System.

         There is no reference to the performance of procedures upon the nervous

system in the Chiropractic Act. Furthermore, the practice of chiropractic is limited

by statute to analyzing, examining or evaluating the biomechanical condition of the

spine and musculoskeletal system, and to performing nonsurgical, nonincisive

procedures to improve the subluxation complex or the biomechanics of the

musculoskeletal system. See TEX. OCC. CODE § 201.002(b)(1), (2) (emphasis added).

In contrast, the Acupuncture Act defines acupuncture as, in part, the nonsurgical,

nonincisive insertion of an acupuncture needle to specific areas of the human body

as a primary mode of therapy to treat and mitigate a human condition. See TEX. OCC.

CODE § 205.001(2)(A). The definition of acupuncture is broad in terms of the areas

of the body to be treated with acupuncture needles; acting within the scope of the

definition, acupuncturists use acupuncture needles to stimulate the central nervous
                                            6
system at various acupuncture points. The acupuncture points appear to affect

chemical neurotransmitters in the body.

      The Chiropractic Board has no statutory authority to adopt rules authorizing

chiropractors to use needles, or to perform any other procedure, on the nervous

system. The Chiropractic Act makes no reference to treating the nervous system.

Treating the nervous system with acupuncture needles is clearly beyond the scope

of chiropractic in Texas. Yet, the Chiropractic Board’s current rules define

musculoskeletal system to include “nerves that move the body and maintain its

form.” 22 TEX. ADMIN. CODE § 78.13(a)(5) (emphasis added). The Chiropractic

Board rules define subluxation complex as a “neuromusculoskeletal condition….”

22 TEX. ADMIN. CODE § 78.13(a)(9) (emphasis added). Subluxation is defined, in

part, in the same rules as “[a] lesion or dysfunction in a joint or motion segment in

which alignment, movement integrity and/or physiological function are altered…. It

is essentially a functional entity, which may influence biomechanical and neural

integrity.” 22 TEX. ADMIN. CODE § 78.13(a)(8) (emphasis added). The chiropractic

rules also define acupuncture to include “nerve stimulation using “short-needle

insertion.” See 22 TEX. ADMIN. CODE § 78.14 (emphasis added). The Texas Medical

Association (“TMA” or “Amicus”) asserts that is inappropriate for the Chiropractic

Board through rule-making to manufacture its own definitions in such a way that it

authorizes chiropractors to perform procedures on the nervous system. As the


                                          7
Chiropractic Board has no statutory authority to adopt such rules, Amicus asserts that

those rules do not support the Chiropractic Board’s adoption of Section 78.14 of the

chiropractic rules, and Amicus respectfully requests that Section 78.14 of the

chiropractic rules be held to be void.

   III.   The Chiropractic Act Does Not Contain Any Provision Authorizing
          Chiropractors to Perform Acupuncture.

      Like other administrative agencies, the Chiropractic Board possesses only

those powers expressly conferred on it by the Texas Legislature. Pub. Util. Comm’n

v. City Pub. Serv. Bd,, 53 S.W.3d 310, 317 (Tex. 2001). While the Texas Legislature

has delegated rule-making authority to the Chiropractic Board, this grant of authority

does not authorize the Chiropractic Board to adopt rules contrary to the underlying

practice act. See, e.g., State Agencies. v. R.R. Comm’n of Tex., 421 S.W.3d 690, 699

(Tex. App. – Austin 2014, no pet.).

      The Chiropractic Board has attempted though rule-making to adopt rules

allowing chiropractors to perform acupuncture, in violation of the Chiropractic Act.

That act addresses biomechanical conditions of the musculoskeletal system, not

acupuncture. It must be presumed that every word in a statute was chosen

deliberately, and every word excluded was left out on purpose. USA Waste Services

of Houston, Inc. v. Strayhorn, 150 S.W.3d 491, 494 (Tex. App. – Austin 2004, pet.

denied); Dallas Merchants and Concessionaire’s Ass’n v. City of Dallas, 852

S.W.2d 489, 493 (Tex. 1993). The Acupuncture Act, in contrast, prohibits a person
                                          8
from practicing acupuncture “unless the person holds a license to practice

acupuncture issued by the acupuncture board.” TEX. OCC. CODE § 205.201. The act

provides further that health care professionals who are licensed under another statute

can perform acupuncture, provided they are acting within the scope of the license.

See TEX. OCC. CODE § 205.003(a). Amicus contends that, since acupuncture is not

within the scope of chiropractic licensure, it follows that the practice of acupuncture

by a chiropractor violates the Acupuncture Act’s prohibition against performing

acupuncture without a license, and that such practice does not meet the Acupuncture

Act’s requirements for exemption from licensure.

      There also are strong public policy reasons for the argument that the practice

of chiropractic should not include acupuncture. Acupuncturists are required, inter

alia, to complete a minimum of 1,800 instructional hours from an accredited

acupuncture school. See TEX. OCC. CODE § 205.206. Chiropractors performing

acupuncture are required only, at minimum, to complete 100 hours of acupuncture

instruction. 22 TEX. ADMIN. CODE § 78.14. Acupuncturists must meet annual

continuing education requirements (17 hours) as a condition of licensure. 22 TEX.

ADMIN. CODE § 183.20(b). While there are continuing education requirements for

chiropractors, chiropractors are not required to meet any specific acupuncture

continuing education requirements to practice acupuncture. See 22 TEX. ADMIN.

CODE § 75.5.


                                          9
                                       PRAYER

      The Texas Medical Association, as Amicus in this case, prays that the Court

reverse the trial court’s judgment, and render judgment for Appellant, the Texas

Association of Acupuncture and Oriental Medicine, by declaring invalid and

enjoining 22 Texas Administrative Code §§ 78.13(a)(4), (b)(2), (e)(2)(C), and 78.14.


                                             Respectfully submitted,

                                             By:



                                             DONALD P. WILCOX
                                             State Bar No. 21449000
                                             MATTHEW T. WALL
                                             State Bar No. 20756800
                                             TEXAS MEDICAL ASSOCIATION
                                             401 WEST 15TH STREET
                                             AUSTIN, TEXAS, 78701
                                             Phone: (512) 370-1300
                                             Fax: (512) 370-1693

                                             Attorneys for Amicus Curiae
                                             Texas Medical Association




                                        10
                         CERTIFICATE OF SERVICE

       I HEREBY CERTIFY THAT ON THIS 1st day of December, 2015, a true
and correct copy of the foregoing document was electronically filed with the Clerk
of the Court using the electronic case filing system of the Court, and that a true and
correct copy was served by electronic service and/or electronic mail on the
following:

Craig T. Enoch
Melissa A. Lorber
Shelby O’Brien
Enoch Kever PLLC
600 Congress Avenue
Suite 2800
Austin, Texas 78701
cenoch@enochkever.com
mlorber@enochkever.com
sobrien@enochkever.com

Counsel for Appellant

Joe H. Thrash
Assistant Attorney General
Administrative Law Section
P.O. Box 12548
Austin, Texas 78711
Joe.Thrash@texasattorneygeneral.gov

Counsel for Appellees




                                              Matthew T. Wall




                                         11
                    CERTIFICATE OF COMPLIANCE

      I HEREBY CERTIFY THAT the foregoing document is a computer-
generated document containing 2,850 words. The undersigned relied upon the word
count feature on his word processor in determining the word count.




                                           Matthew T. Wall




                                      12
                           NO. 03-15-00262-CV


                           In the Court of Appeals
                       Third District of Texas - Austin


              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 District Court, Travis County, Texas
                      Cause No. D-1-GN-14-000355



              APPENDIX TO BRIEF OF AMICUS CURIAE
                 TEXAS MEDICAL ASSOCIATION


                          TABLE OF CONTENTS

APPENDIX

  1. STEDMAN’S MEDICAL DICTIONARY (28TH ED.) (“biomechanics”)




                                     13
